STATE OF NEW JERSEY VS. RODNEY B. PERKINS (15-06-0458, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0520-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RODNEY B. PERKINS,
Defendant-Appellant.
Submitted October 31, 2019 – Decided November 25, 2019
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 15-06-0458.
Joseph E. Krakora, Public Defender, attorney for
appellant (Tamar Yael Lerer, Assistant Deputy Public
Defender, of counsel and on the briefs).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Michele C. Buckley, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Rodney B. Perkins appeals the trial court's order denying his
motion to suppress cocaine, heroin, and other items related to narcotics sales,
seized pursuant to a search warrant. After the denial, defendant entered a guilty
plea to second-degree possession of cocaine with intent to distribute, N.J.S.A.
2C:35-5(a)(1), and 2C:35-5(b)(2). He was sentenced June 17, 2016, in accord
with the agreement to eight years imprisonment, subject to four years of parole
ineligibility. Defendant also contends the sentence was excessive. We affirm.
As described in Plainfield Police Detective Christopher Fortunka's
twelve-page detailed affidavit submitted in support of the application for a
search warrant, he received intelligence from a reliable confidential informant
(CI) that "Black," later identified as defendant, was distributing cocaine from a
specified address. The CI also stated that defendant would drive the narcotics
to a meeting place with the buyers. Under Fortunka's direction, the CI made two
controlled buys. During both, defendant was observed leaving from the
specified premises and meeting the CI in his car at a different location. During
one transaction, defendant drove a sedan, and during the second, he drove a
pickup truck. The officer learned during the investigation that the "current
subscriber for utilities" of the specified premises was a woman with whom
defendant was in a dating relationship. Based on these and other details,
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including the officer's description of his extensive training and experiences over
nine years of service, a Law Division judge issued a no-knock warrant
authorizing a search of the premises, defendant's person, and two vehicles.
The search warrant defined the area to be searched as "all areas of ingress,
access and egress" of the premises. The affidavit stated the detective witnessed
defendant placing suspected narcotics in the recycling bin to the rear of the
home. Defendant challenged the overall sufficiency of the affidavit, and the
search of the recycling bin specifically, at the motion hearing on the same basis
as he challenges the search on appeal. The Law Division judge found in his
cogent written decision on the motion that the recycling bin:
was located within the rear yard, not on the curb or
street out for collection. Therefore, the bin was in the
home and curtilage, making the search of the bin valid.
To ask police to secure a separate warrant for a bin
located on the property already subject to search would
be inefficient and unnecessary.
At the time of sentence, defendant was fifty-two years old. He had been
convicted of nine prior indictables dating back to 1989, and sentenced to
probation and state prison, in the main for drug offenses. The sentencing judge
found aggravating factors three, six, and nine given defendant's "extensive"
prior criminal history, and further found mitigating factor eleven based on the
hardship his family, like all others of incarcerated persons, would experi ence
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during service of his sentence. N.J.S.A. 2C:44-1(a)(3), (6), (9); N.J.S.A.
2C:44-1(b)(11). The judge opined that defendant's sentence was reasonable, and
that he would otherwise face "a lot more time."
Now on appeal, defendant raises the following points for our
consideration:
POINT I
THE AFFIDAVIT IN SUPPORT OF THE SEARCH
WARRANT FAILED TO PROVIDE PROBABLE
CAUSE TO SEARCH EITHER THE TARGET
RESIDENCE OR DEFENDANT'S CAR.
POINT II
THE MATTER SHOULD BE REMANDED FOR
ADDITIONAL FACTUAL FINDINGS AND A NEW
DECISION REGARDING SUPPRESSION OF
EVIDENCE BECAUSE THE TRIAL COURT DID
NOT RESOLVE A CRITICAL FACTUAL
QUESTION.
We begin our discussion with principles the Supreme Court recently
reiterated regarding search warrants. The Court said: "[a] search that is
executed pursuant to a warrant is 'presumptively valid,' and a defendant
challenging the issuance of that warrant has the burden of proof to establish a
lack of probable cause 'or that the search was otherwise unreasonable.'" State
v. Boone, 232 N.J. 417, 427 (2017) (quoting State v. Watts, 223 N.J. 503, 513-
14 (2015)). Furthermore, we "accord substantial deference to the discretionary
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determination resulting in the issuance of the warrant." Ibid. (quoting State v.
Jones, 179 N.J. 377, 388 (2004)). On review, we consider the totality of the
circumstances, and sustain the validity of the search so long as the issuing
judge's finding of probable cause relied on adequate facts. Ibid.
In this case, defendant contends, in reliance upon Boone, that the issuing
magistrate did not have sufficient probable cause to believe that drugs would be
found either at the specified address or in defendant's vehicles. But when under
surveillance, defendant on several occasions drove to a meet site to sell drugs,
including the CI's two controlled drug buys. The officer said defendant drove
in one or the other of his vehicles to "pre-arranged meet locations, where he
engaged in hand-to-hand narcotics transactions with waiting individuals," and
returned home. As a result of these observations, the officer concluded
defendant was engaging in narcotics distribution from the residence. A review
of the affidavit convinces that conclusion is warranted. The officer provided
sufficient information to establish probable cause to search "within the four
corners of the supporting affidavit[.]" State v. Marshall, 199 N.J. 602, 611
(2009) (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000)).
Defendant challenges the bin as not having been included in the
description of the area to be searched in the warrant, and at a minimum, requires
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a remand to be established. We disagree. The search warrant affidavit refers to
the bin being located in the rear yard. The issue requires a common sense
analysis. See State v. Evers, 175 N.J. 355, 385 (2003) ("[T]he proofs in support
of a search warrant will continue to be examined in a common-sense and not a
hypertechnical manner."). No purpose would have been served in requiring the
procurement of a separate warrant for that area, included in the curtilage. The
argument that the bin may not have been located within the curtilage is based on
speculation, and not on any actual fact in the record. Thus, it was not a material
issue requiring a separate hearing. State v. Fuentes, 217 N.J. 57, 70 (2014). We
do not substitute our judgment for that of the sentencing court. Ibid. (citing
State v. O'Donnell, 117 N.J. 210, 215 (1989)). The court here provided a
qualitative analysis of the relevant sentencing factors, finding aggravating and
mitigating factors supported by the credible evidence in the record. State v.
Dalziel, 182 N.J. 494, 505 (2005). Thus, defendant has not established any
reason for us to disturb the sentence. Given defendant's sentencing exposure, as
a mandatory extended-term offender, N.J.S.A. 2C:43-6(f), defendant received
an eminently reasonable sentence. It does not shock the conscience.
Affirmed.
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