STATE OF NEW JERSEY VS. KELVIN REYES(13-06-1904, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-3397-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KELVIN REYES, a/k/a KEVIN REYES,
Defendant-Appellant.
___________________________________
Submitted November 29, 2016 – Decided June 19, 2017
Before Judges Ostrer and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment No. 13-06-1904.
Joseph E. Krakora, Public Defender, attorney
for appellant (Peter T. Blum, Assistant Deputy
Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Kelvin Reyes pleaded guilty to first-degree
possession of a controlled dangerous substance (over fifty
marijuana plants) with the intent to distribute, N.J.S.A. 2C:35-
5(a)(1), -5(b)(10), after the trial court denied his motion to
suppress evidence. Consistent with the plea agreement, the court
sentenced defendant to a ten-year term of incarceration with a
three-year period of parole ineligibility. In his appeal,
defendant asserts the trial court erred by relying on the hearsay
statement of the officer who first observed the so-called "grow
facility" in the basement of defendant's Camden home. In doing
so, defendant argues the court both violated his constitutional
rights and abused its discretion. Finding no such error, we
affirm.
The principal State witness at the suppression hearing was
parole officer Anthony Bruno. He had a warrant to arrest a parole
absconder named Joel Hernandez, who was defendant's cousin.
Bruno's investigation into Hernandez's whereabouts led him and a
team of officers to defendant's house. Bruno, lacking a search
warrant, requested defendant's permission to enter the home to
search for the fugitive. Bruno testified that Reyes consented to
the officers' entry. Bruno also testified that the house reeked
of burnt marijuana. Reyes admitted he had recently smoked
marijuana, but Bruno assured Reyes that his purpose was to find
the fugitive.
Defendant raised no objection initially as the officers
searched the first and second floors of his home. But, when a
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member of the search team, Sergeant Dave Brooks, opened the door
to defendant's basement, he suddenly withdrew his consent to the
search and insisted that Bruno would need a search warrant to
proceed downstairs. Brooks promptly shut the basement door. But,
Bruno testified, without objection, that Brooks then said he had
already observed the basement contained a marijuana grow facility.
Brooks then told Bruno about his observation. Although defendant
had withdrawn his consent, the officers thereafter conducted a
protective sweep of the basement to confirm that neither Hernandez
nor anyone else was hiding there. The officers eventually obtained
a search warrant for the basement and seized 307 plants.
Defendant presented a competing version of events through two
witnesses — a cousin and a close friend — who were present in the
house when the officers arrived. Both testified that the officers
initially entered the house without consent. The friend, who was
familiar with the configuration of the basement stairs, further
asserted it would have been impossible to see into the basement
from Brooks's vantage point at the threshold of the door. The
friend explained that the door led to a landing with the stairway
positioned at a ninety-degree angle to the left.1 He argued that
1
Defendant introduced into evidence several photographs of the
doorway and stairway, but these are not included in the appellate
record.
3 A-3397-14T3
a wall abutting the far side of the steps precluded any view into
the basement until one walked at least halfway down.
Defendant also called a State Police Detective Sergeant, Dean
Carnival, to testify about the protective search and subsequent
search pursuant to the warrant. Significantly, on cross-
examination, Carnival testified that the lighting in the basement
was unusually bright, noting the lights mimicked sunlight to
promote the plants' growth. He also stated that he could smell
the marijuana plants from the top of the basement.
In denying the motion to suppress, the trial judge credited
Bruno's testimony and relied on Brooks's hearsay statement that
he detected the presence of marijuana plants before defendant
withdrew his consent. The judge found that the officers discovered
the marijuana plants pursuant to defendant's consent.
Accordingly, the seizure was lawful.
As his sole point on appeal, defendant contends:
POINT I
THE HEARING COURT DEPRIVED REYES OF DUE
PROCESS -- OR AT LEAST ABUSED ITS DISCRETION
-- BY CREDITING AN OFFICER'S HEARSAY TESTIMONY
THAT ANOTHER OFFICER HAD SEEN MARIJUANA IN
REYES'S BASEMENT OVER AN EYEWITNESS'S
TESTIMONY THAT THE BASEMENT COULD NOT BE
VIEWED FROM THE OTHER OFFICER'S POSITION.
U.S. CONST. AMENDS. XIV; N.J. CONST. ART. I,
PARA. 1. (not raised below).
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Defendant argues that his procedural due process rights were
violated by the court's reliance on Brooks's hearsay observation.
In particular, he contends Brooks's out-of-court statements were
unreliable and should have been supplemented by his in-court
testimony. He argues the court abused its discretion by failing
to require the State to call Brooks.
We find no merit in defendant's challenge to the court's
reliance on Brooks's hearsay observation. Defendant did not object
at the hearing to the admission of Brooks's hearsay statements
through Bruno. Indeed, on cross-examination of Bruno, his counsel
had Bruno repeat the hearsay evidence about which he now complains:
Q So, Mr. Brooks says to you, you know
what's down there in the basement, there's a
bunch of marijuana plants; is that right?
A Correct, uh-huh.
Even if hearsay is subject to a well-founded objection, it
is generally evidential if no objection is made. State v.
Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring);
see also Morris v. United States, 813 F.2d 343, 348 (11th Cir.
1987) (stating that "if [hearsay] evidence . . . is admitted
without objection, it is to be considered, and accorded its natural
probative effect, as if it were in law admissible" (emphasis
omitted) (quoting Spiller v. Atchison, Topeka & Sante Fe Ry. Co.,
253 U.S. 117, 130, 40 S. Ct. 466, 472, 64 L. Ed. 810, 819 (1920))).
5 A-3397-14T3
Our Court has declared that the admission of hearsay without
objection is subject to a plain error review, but it did so in a
criminal jury trial. State v. Frisby, 174 N.J. 583, 591 (2002)
("Because no objection was advanced with respect to that hearsay
evidence at trial, it must be judged under the plain-error
standard: that is, whether its admission 'is of such a nature as
to have been clearly capable of producing an unjust result.'"
(quoting R. 2:10-2)). It is questionable whether plain error
review is required in a suppression hearing where the judge is the
fact-finder and permits the admission of unobjected-to hearsay.
The judge presumably appreciates the nature of the hearsay and
will give it the weight it deserves. Cf. N.J. Div. of Child Prot.
& Permanency v. J.D., 447 N.J. Super. 337, 348-49 (App. Div. 2016)
(stating, in context of civil bench trial, "[w]hen objectionable
hearsay is admitted . . . without objection, we presume that the
fact-finder appreciates the potential weakness of such proofs, and
takes that into account in weighing the evidence"). "In general,
it is not the judge's responsibility, particularly in a bench
trial with represented parties, to intervene with a well-founded
hearsay objection, whenever counsel choose not to raise one of
their own." Id. at 349.
Even if the plain error standard does apply, we presume the
hurdle is high to show the prospect of an unjust result. Cf.
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Ibid. (noting the "high hurdle" to demonstrate plain error where
unobjected hearsay is admitted in a civil bench trial). For two
reasons, we discern no plain error in the court's reliance on
Brooks's observation. First, defendant places undue weight on the
evidence that Brooks could not actually see plants from his vantage
point at the basement door because of the configuration of the
stairway. Second, defendant has not established that reliance on
hearsay was a "clear and obvious" error. See State v. Morton, 155
N.J. 383, 421 (1998) ("Under that [plain error] standard, defendant
has the burden of proving that the error was clear and obvious and
that it affected his substantial rights."), cert. denied, 532 U.S.
931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
Turning first to the evidence of what Brooks could or could
not see, we defer to the trial court's determination that
defendant's friend was not credible. State v. Scriven, 226 N.J.
20, 32 (2016). We also note that defendant has not included the
photographs that he claims demonstrate the sight lines from the
doorway in the appellate record. See Cmty. Hosp. Grp., Inc. v.
Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) (stating
that the court need not attempt to review an issue "when the
relevant portions of the record are not included"), certif. denied
and remanded on other grounds, 187 N.J. 489 (2006); see also R.
2:6-1(a) (stating appellant must include in the appendix "such
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other parts of the record . . . as are essential to the proper
consideration of the issues").
Furthermore, even if one assumed that Brooks could not
actually see the plants in the basement, the evidence amply
demonstrated that Brooks could nonetheless reliably detect the
presence of a grow facility. Notably, although Bruno testified
that Brooks "had . . . seen down the stairs" and conveyed that
there were plants in the basement, Bruno did not claim that Brooks
said he actually saw the plants from the doorway. The following
colloquy is illustrative:
A I see -- as Mr. -- Sergeant Brooks opened
the door, you know, he kind of -- and then he
revoked consent, he shut the door. And as he
was shutting the door he was kind of looking
at me with a facial expression that we have
some sort of issue.
Q Okay. Did he say anything aloud at
that point in time? And I mean --
A Yes.
Q -- Sergeant Brooks when I say he?
A Yes.
Q What did he say?
A I can't recall the specifics, but
something to me regarding something going on
in the basement.
Q Okay. And did he elaborate on that?
A I don't recall, sir.
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. . . .
Q . . . . Did Sergeant Brooks relate
to you at any point between the door opening,
the contacting the Marijuana Eradication Unit,
did he tell you what he was able to observe
from the doorway?
A Yes. Yes.
Q And what did he tell you?
A That there was a lot of marijuana in the
basement.
Q Okay. And that was based on the
observation that he had made at the top of the
stairs?
A Yes.
Bruno's testimony demonstrates that Brooks's observation of
a marijuana grow facility could well have been based on the glow
of the bright lights that illuminated the basement to mimic
sunlight and on the detectable odor of 307 marijuana plants in the
basement of a Camden house. In short, Brooks did not need to see
the plants to conclude a grow facility was present in the basement.
Thus, we reject defendant's contention that Brooks's hearsay
statement was unreliable.
Second, defendant has fallen far short of demonstrating that
it was a clear and obvious error of law for the court to rely on
Brooks's hearsay. See Morton, supra, 155 N.J. at 421. An error
is plain only if "the error is clear under current law." United
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States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L.
Ed. 2d 508, 519 (1993). However, the clear import of current law
is that "hearsay is permissible in suppression hearings." State
v. Bivins, 226 N.J. 1, 14 (2016) (internal quotation marks and
citation omitted); see also State v. Wright, 431 N.J. Super. 558,
565 n.3 (App. Div. 2013) (citing N.J.R.E. 101(a)(2)(E)), rev'd on
other grounds, 221 N.J. 456 (2015); State v. Gibson, 429 N.J.
Super. 456, 466 (App. Div. 2013) (stating that "[t]he Rules of
Evidence do not apply in the suppression hearing, except as to
N.J.R.E. 403 and claims of privilege" and citing N.J.R.E. 104(a)),
rev'd on other grounds, 219 N.J. 227 (2014); State v. Williams,
404 N.J. Super. 147, 171 (App. Div. 2008) (concluding that the
defendant could not invoke his Sixth Amendment right to challenge
the admission of hearsay during a suppression hearing because the
right was "inapplicable" to the proceeding), certif. denied, 201
N.J. 440 (2010).2 There is also no clear authority for defendant's
contention that hearsay in a suppression hearing requires special
corroboration.
2
New Jersey is not alone. "The overwhelming majority of state
courts that have addressed the question of whether Crawford [v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)]
applies to a preliminary hearing such as a motion to suppress have
also held that the right of confrontation is not implicated."
Washington v. Fortun-Cebada, 241 P.3d 800, 807 (Wash. Ct. App.
2010) (collecting cases, including Williams, supra).10 A-3397-14T3
Contrary to current law approving reliance on hearsay,
defendant asks us to find a bar to the admission of hearsay in
suppression hearings grounded in the right to procedural due
process. Defendant cites no precedent, let alone clear precedent,
in support of his argument. The United States Supreme Court
supports the opposite view. United States v. Raddatz, 447 U.S.
667, 679, 100 S. Ct. 2406, 2414, 65 L. Ed. 2d 424, 435 (1980)
(observing that "the process due at a suppression hearing may be
less demanding and elaborate than the protections accorded the
defendant at the trial itself"). Defendant's reliance on cases
involving parole and probation revocation and civil commitment —
to the extent they stand for a limitation on hearsay at all — are
readily distinguishable because they directly involve the liberty
of a defendant.3
In sum, the court's admission of Brooks's hearsay through
Bruno was not plain error. To the extent not addressed,
3
We recognize that a majority of the panel in State v. Bacome,
440 N.J. Super. 228, 239 n.7 (App. Div. 2015), rev'd on other
grounds, 228 N.J. 94 (2017), raised questions about the observation
in Raddatz that "the interests at stake in a suppression hearing
are of a lesser magnitude than those in the criminal trial itself."
Raddatz, supra, 447 U.S. at 679, 100 S. Ct. at 2414, 65 L. Ed. 2d
at 435. But the judges did not reach the issue of hearsay's
admissibility in a suppression hearing. We need not join that
debate further here, as the issue in a plain error analysis, as
we have noted, is whether an error was clear under current law.
11 A-3397-14T3
defendant's remaining arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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