STATE OF NEW JERSEY VS. KENNETH G. MURILLO (17-09-1087 AND 18-01-0045, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-0184-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH G. MURILLO,
Defendant-Appellant.
____________________________
Submitted December 2, 2019 – Decided December 11, 2019
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 17-09-
1087 and 18-01-0045.
Joseph E. Krakora, Public Defender, attorney for
appellant (Rochelle Mareka Amelia Watson, Assistant
Deputy Public Defender, of counsel and on the brief).
Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (Patrick F.
Galdieri, II, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from his conviction for second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b)(1).1 Police found the gun stashed
in a wall of a commercial establishment on a public street, where defendant had
no privacy interest. He mainly contends that Judge Benjamin S. Bucca, Jr.
erroneously denied defendant's motion to suppress. We disagree and affirm.
The judge conducted a hearing, denied the motion to suppress, and
rendered an oral opinion. Defendant then pled guilty. In accordance with his
plea agreement, Judge Bucca sentenced defendant to a five-year prison term
with a forty-two month parole disqualifier.
On appeal, defendant argues:
POINT I
THE POLICE DID NOT POSSESS REASONABLE
SUSPICION SUFFICIENT TO STOP [DEFENDANT]
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Defendant was charged under indictment number 17-09-1087 with second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count one);
second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39 -
4(a)(1) (count two); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count
three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four);
and fourth-degree possession of hollow-nosed bullets, N.J.S.A. 2C:39-3(f)
(count five). Under indictment number 18-01-0045, defendant was charged with
fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count one);
third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count two); third-
degree possession of Xanax, N.J.S.A. 2C:35-10(a)(1) (count three); and fourth-
degree hindering the apprehension or prosecution of another, N.J.S.A. 2C:29 -
3(a)(7) (count four). Defendant also pled guilty to fourth-degree possession of
marijuana, N.J.S.A. 2C:35-10(a)(3), which is not the subject of this appeal.
A-0184-18T4
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AND THE EVIDENCE OBTAINED AFTER THE
UNCONSTITUTIONAL SEIZURE WAS
INADMISSIBLE UNDER THE DOCTRINE OF
PLAIN VIEW.
We conclude that defendant's argument is without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless add the
following brief remarks.
"[O]n appellate review, a trial [judge's] factual findings in support of
granting or denying a motion to suppress must be upheld when 'those findings
are supported by sufficient credible evidence in the record.'" State v. S.S., 229
N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). This
court "accord[s] deference to those factual findings because they are
substantially influenced by [an] opportunity to hear and see the witnesses and to
have the feel of the case, which a reviewing court cannot enjoy." State v. Lamb,
218 N.J. 300, 313 (2014) (alteration in original) (internal quotation marks and
citations omitted). This court "should not disturb a trial [judge's] factual
findings unless those findings are 'so clearly mistaken that the interests of justice
demand intervention and correction.'" S.S., 229 N.J. at 374 (quoting Gamble,
218 N.J. at 425). "[A] trial court's legal conclusions are reviewed de novo."
Lamb, 218 N.J. at 313.
A-0184-18T4
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Here, police responded to a 9-1-1 call and spotted defendant. The officer
asked defendant if he was in a fight, defendant replied no, and the officer left
the scene. Twenty minutes later, police returned in response to another call,
specifically involving a gun. They detained defendant and two others—and
asked for their identification. In conducting a protective sweep of the area,
police then found the gun.
The law on whether one has an expectation of privacy is settled. "One
seeking to invoke the protection of the [F]ourth [A]mendment must establish
that a reasonable or legitimate expectation of privacy was invaded by
government action." State v. Marshall, 123 N.J. 1, 66 (1991). To determine
whether an expectation of privacy is protectable, federal courts "employ[] a two-
prong test: first, a person must have exhibited an actual expectation of privacy,
and second, the expectation must be one that society is prepared to recognize as
reasonable or legitimate." State v. Sencion, 454 N.J. Super. 25, 32 (App. Div.
2018). In New Jersey, "[o]ur Supreme Court, however, has defined an objective
test asking only whether a person has a reasonable expectation of privacy." Ibid.
Such "'[e]xpectations of privacy are established by general social norms,' and
must align with the 'aims of a free and open society.'" State v. Taylor, 440 N.J.
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Super. 515, 523 (App. Div. 2015) (quoting State v. Hempele, 120 N.J. 182, 200-
01 (1990)).
Here, defendant had no reasonable expectation of privacy in the public
wall, which was located on a sidewalk accessible to any person. Therefore, the
seizure of the gun—even though not in plain view—was constitutional. Indeed,
the judge found that there was no reasonable expectation of privacy in the wall
because the firearm was hidden in a public area to which the general public has
access.
Affirmed.
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