STATE OF NEW JERSEY VS. KENNETH D. DAWKINS(14-10-0844, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0517-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH D. DAWKINS,
Defendant-Appellant.
_______________________________
Submitted July 18, 2017 – Decided July 27, 2017
Before Judges Reisner and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 14-10-0844.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Assistant
Deputy Public Defender, of counsel and on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Emily R. Anderson,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Kenneth D. Dawkins appeals from his conviction,
based on his guilty plea to third-degree possession of a controlled
dangerous substance (CDS) with intent to distribute, N.J.S.A.
2C:35-5(b)(3) and -5(a)(1), and second-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b). He has not appealed from the
aggregate sentence of seven years in prison with a four year parole
bar. We affirm.
Defendant's appeal raises one point of argument, focusing on
the denial of his suppression motion:
THE EVIDENCE FOUND IN DEFENDANT'S HOME SHOULD
BE SUPPRESSED BECAUSE THE STATE DID NOT PROVE
KNOWLEDGE OF THE RIGHT TO REFUSE CONSENT,
WHICH IS AN INDISPENSABLE FACET OF VOLUNTARY
CONSENT.
The following evidence was presented at the suppression
hearing. According to Detective Alston, while patrolling a high
crime area of South Plainfield at about 10 p.m., he spotted a
large group of individuals standing in the yard of a house where
he knew none of them lived. One of the individuals appeared to
be urinating in the yard. He asked the group who they were
visiting at the premises. When they responded that they were
there to visit "Chris" on the third floor, the Detective entered
the open door of the house, which he knew contained several
apartments. His purpose was to check with Chris to be sure that
the large group of individuals were invitees and "not just taking
over a property that they weren't supposed to be at."
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While climbing the unlit interior stairs to the third floor
apartment, using a flashlight to light his way, Alston encountered
two individuals, including defendant. On seeing Alston, defendant
dropped a small baggie which appeared to contain drugs. At that
point, Alston placed defendant under arrest and called for back-
up. Defendant told Alston that he lived on the third floor with
his girlfriend Chris. When Alston told defendant that he intended
to go up and talk to Chris, defendant told him to "go ahead, she's
up there now." Another officer took defendant downstairs, while
Alston proceeded to the third floor.
Chris answered the door when Alston knocked, and he informed
her that he had just arrested defendant leaving her apartment with
drugs, and that there was a large group of people outside claiming
to be there to visit her. Chris became upset, denied that the
group was there to see her, and insisted that she was at home with
her children. After obtaining her permission to enter the
apartment, Alston asked Chris where defendant was just before he
left the apartment. She showed him a closet that appeared to
contain baby clothes. He then asked her if she would sign a
consent to search form. According to Alston, he advised Chris
that "she didn't have to sign" the consent form, and could refuse
to allow a search. Chris did not want to sign the form, but she
orally consented to the search because "she was highly upset about
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. . . defendant being arrested possibly with CDS downstairs." She
also indicated that she was angry at defendant because she was
paying all the bills and he was not giving her any money.
Alston testified that a search of the apartment revealed
drugs and a gun hidden in a closet and another gun hidden under a
mattress. He testified that Chris was quite upset at learning
that defendant was keeping CDS and guns in the apartment where her
children were living.
FBI Special Agent Orr testified that during a subsequent
interview with Chris, whose full name was Christine Vazquez, she
told him that she voluntarily allowed the Plainfield police to
search the apartment. She also told Orr that the police were very
polite to her. She also mentioned that when they searched defendant
and found some money, they gave it to her before taking defendant
away to the police station.
Vazquez testified that the police entered the apartment
without her consent and searched the premises without requesting
or obtaining her consent. According to Vazquez, after the police
found the guns, they threatened to arrest her if she did not sign
a consent to search form. She testified that the police did not
find any drugs in the apartment. She also denied telling Orr that
she had consented to the search.
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In a written opinion, Judge Joseph P. Donohue found that
Detective Alston and Special Agent Orr were credible witnesses.
He also found that "to the extent that their testimony differs
from" that of Vazquez, "their version of events is the more
credible and believable version." Accordingly, the judge found
as fact that Vazquez gave the police permission to enter her
apartment, and that she voluntarily consented to the search after
being advised of her right to refuse consent. He also found that
the police were justified in entering the open, unsecured front
door of the apartment building and were lawfully in the viewing
area when defendant dropped the bag of drugs.
On a motion to suppress, we defer to the trial judge's
findings so long as they are supported by "sufficient evidence in
the record." State v. Dunbar, ___ N.J. ___, ___ (2017) (slip op.
at 30) (2017) (quoting State v. Hubbard, 222 N.J. 249, 262 (2015)).
Defendant contends that the judge's findings are inconsistent with
the hearing testimony. However, after reviewing the record, we
find no basis to disturb Judge Donohue's well-explained
credibility determinations and factual findings. Based on the
facts as the judge found them to be, his legal conclusions are
unassailable, and we affirm for the reasons stated in his opinion.
Affirmed.
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