STATE OF NEW JERSEY VS. GREGORY K. PERRY (07-12-2110, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0617-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GREGORY K. PERRY,
Defendant-Appellant.
Submitted January 14, 2019 – Decided February 4, 2019
Before Judges Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 07-12-2110.
Joseph E. Krakora, Public Defender, attorney for
appellant (Cody T. Mason, Assistant Deputy Public
Defender, of counsel and on the briefs).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Ian C. Kennedy, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Following denial of his motion to suppress evidence seized incident to his
arrest and pursuant to a search warrant, defendant Gregory K. Perry pled guilty
to third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h) (count six),
and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count eight),
charged in a sixteen-count Bergen County indictment. Defendant was sentenced
to consecutive three-year prison terms on each count. 1
On appeal, defendant challenges the denial of his pro se 2 suppression
motion, contending the municipal court exceeded its jurisdictional authority
when it issued an arrest warrant, which charged an offense that was not
committed in that municipality. Defendant further contends any evidence seized
1
Count nine of the indictment, charging defendant with possession of a
controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), was dismissed
pursuant to the plea bargain. Defendant previously pled guilty to count ten of
the indictment, charging him with second-degree escape, N.J.S.A. 2C:29-5, and
was sentenced to a five-year prison term for that conviction, which is not part
of this appeal. The extensive procedural history regarding dismissal of the
remaining counts of the indictment is not relevant to this appeal.
2
Defendant was represented by counsel when he filed his motion and, against
the advice of counsel, when defendant presented his argument before the motion
judge.
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after execution of the arrest warrant should be suppressed pursuant to the "fruit
of the poisonous tree" doctrine. 3 We reject these arguments and affirm.
I.
We derive the salient facts and procedural history from the record before
the motion judge. On June 20, 2007, C.Y.K. 4 reported to the Hackensack Police
Department that her daughter's house was burglarized. Several items, including
C.Y.K's credit cards were stolen. Soon thereafter, Hackensack detectives
determined one of the credit cards was used at BJ's Wholesale Club's Paramus
location on June 20, and another credit card was used at Pathmark's Elmwood
Park location on June 21. Video surveillance and witness identifications placed
defendant at both locations.
On June 28, 2007, a Hackensack detective applied for a complaint-warrant
(CDR-2),5 which states:
By certification or on oath, the complainant says
that to the best of his/her knowledge, information and
belief [Gregory K. Perry] on or about 6-20-2007, in
HACKENSACK CITY, BERGEN COUNTY, NJ, did:
3
See Wong Sun v. United States, 371 U.S. 471, 488 (1963).
4
We use initials to protect the privacy of the victims.
5
See R. 3:4-1(a)(1); see also R. 3:2-3(a).
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WITHIN THE JURISDICTION OF THIS
COURT, COMMIT THE OFFENSE OF THEFT BY
KNOWINGLY RECEIVING MOVABLE PROPERTY
BELONGING TO [C.Y.K.] KNOWING IT WAS
STOLEN, SPECIFICALLY BY USING HER
MASTERCARD TO MAKE PURCHASES
TOTALING $533.87 IN VIOLATION OF [N.J.S.A.]
2C:20-7(A).
PROBABLE CAUSE FOR [THE DETECTIVE'S
BELIEF WAS] SET FORTH IN THE POLICE
REPORT ATTACHED [TO THE CDR-2] AS
EXHIBIT "A."[6]
A deputy court administrator (DCA) 7 authorized issuance of the CDR-2.
Later that day, Hackensack police executed the warrant and arrested defendant
at his home in Englewood. Conducting a search incident to defendant's arrest,
police seized, among other things, a receipt for an attempted purchase made at
BJ's Wholesale Club with C.Y.K's stolen credit card.
A few days later, Hackensack police seized stolen watches and cufflinks
from defendant's impounded vehicle pursuant to a search warrant. Those items
were identified by J.K., another victim, as having been stolen from his residence
in Englewood on May 30, 2007.
6
The police report was not provided on appeal.
7
See R. 3:2-1(a); R. 3:2-3.
A-0617-17T3
4
Pertinent to this appeal, in count six of the indictment, the grand jury
charged defendant with fraudulent use of C.Y.K.'s credit card "on or about
during and between June 20, 2007, and June 21, 2007, in the Boroughs of
Paramus and/or Elmwood Park, in the County of Bergen, and within the
jurisdiction of this [c]ourt." Count eight charged defendant with receiving
stolen property for the items seized from his vehicle that belonged to J.K.
Following oral argument on February 1, 2017, the trial judge denied
defendant's motion in a cogent oral decision. Relevant here, the judge found no
"territorial bar or . . . municipal jurisdiction issue regarding the complaint." He
elaborated:
[T]he allegation is that there was theft or receiving
stolen property out of Hackensack. The fact that the
use of those credit cards or devices occurred in other
municipalities does not in any way void . . . jurisdiction
or cede jurisdiction from the City of Hackensack where
the . . . alleged victim, a resident of Hackensack,
reported the burglary or reported the theft of her
property.
Thereafter, defendant appealed, but initially only challenged his sentence
as excessive and, as such, the matter was scheduled on an excessive sentencing
oral argument calendar. R. 2:9-11. Because defendant sought to appeal the
denial of his suppression motion, at his request and prior to oral argument, we
transferred the matter to a plenary calendar.
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On appeal, defendant presents the following arguments for our
consideration:
POINT I
THE MOTION TO SUPPRESS EVIDENCE SHOULD
HAVE BEEN GRANTED BECAUSE THE
HACKENSACK MUNICIPAL COURT LACKED
JURISDICTION TO ISSUE THE ARREST
WARRANT.
A. The Hackensack Municipal Court Lacked
Jurisdiction to Issue the Arrest Warrant Because the
Underlying Offense Was Not Alleged to Have Occurred
in Hackensack.
B. The Municipal Court's Lack of Jurisdiction Was a
Substantive Error Which Requires Suppression of the
Fruits of the Arrest Warrant.
We reject these arguments and affirm.
II.
Our review of a trial judge's decision on a motion to suppress is "highly
deferential." State v. Gonzales, 227 N.J. 77, 101 (2016); State v. Robinson, 200
N.J. 1, 15 (2009). "An appellate court reviewing a motion to suppress evidence
in a criminal case must uphold the factual findings underlying the trial court's
decision, provided that those findings are 'supported by sufficient credible
evidence in the record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting
State v. Scriven, 226 N.J. 20, 40 (2016)). We owe no deference, however, to
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conclusions of law made by trial courts in suppression decisions, which we
instead review de novo. State v. Watts, 223 N.J. 503, 516 (2015).
Conceding probable cause existed for issuance of the CDR-2 here,
defendant seeks our de novo review of the municipal court's territorial
jurisdiction to issue the arrest warrant. In doing so, defendant cites Rule 7:2-
2(a)(1) to support his contention that a CDR-2 "may be issued only by a judge"
or authorized "court administrator or [DCA] of a court with jurisdiction in the
municipality where the offense is alleged to have been committed."
Defendant's reliance on Rule 7:2-2(a)(1), which governs issuance of a
CDR-2 for a "[c]itizen [c]omplaint[,]" is misplaced. Where, as here, a l aw
enforcement officer applies for a CDR-2, which charges an indictable offense,
Rule 3:2-3 applies. See also R. 7:1 (defining the scope of municipal court rules
and specifically indicating "The rules in Part III govern the practice and
procedure in indictable actions[.]"). Notably, Rule 3:2-3 does not contain the
same jurisdictional-limiting provision as set forth in Rule 7:2-2(a)(1).
Nonetheless, we view any error in the issuance of the CDR-2 here as a
technical error that does not vitiate the validity of the warrant, particularly since
there existed probable cause for its issuance. As we recognized in State v.
Broom-Smith, 406 N.J. Super. 228, 238-39 (App. Div. 2009), "our courts have
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been reluctant to invalidate search warrants based on confusion over jurisdiction
or other issues that do not implicate probable cause or the neutrality of the
issuing judge." See also State v. Hamlett, 449 N.J. Super. 159, 178 (App. Div.
2017). "In other words, so long as the objectives underlying the warrant
requirement remain intact, slight departures from strict compliance with the
rules will not invalidate a search." Id. at 176. That reluctance is particularly
applicable where the warrant would have been issued exactly as it was, had the
applicant appeared before the correct judge, and there was no evidence of bad
faith. Id. at 178; see also State v. Gadsden, 303 N.J. Super. 491, 505 (App. Div.
1997) (declining to invalidate an arrest warrant where probable cause existed,
but the warrant was executed outside the arresting officers' jurisdiction, deeming
any jurisdictional violation was technical and procedural).
Although our decisions in Hamlett and Broom-Smith pertained to the
issuance of warrants to search premises outside the municipality's geographical
boundaries, our rationale applies with even greater force to the arrest warrant at
issue here, where the grand jury's indictment superseded the CDR-2.
Consequently, any technical deficiency in the warrant, if it existed, is irrelevant
to the charges for which defendant was sentenced. See State v. Boykin, 113 N.J.
Super. 594, 596 (Law Div. 1971) (noting that even after dismissal of a
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complaint, a defendant "may still be indicted and convicted for the same
offense").
Moreover, as the State contends, "Theft under the Code is a single offense.
. . . [T]heft by actual taking and theft by receiving are both theft." Cannel, N.J.
Criminal Code Annotated, cmt. 2 on N.J.S.A. 2C:20-2 (2018). As stated by the
New Jersey Criminal Law Revision Commission in its commentary to the
proposed New Jersey Penal Code:
Consolidation of receiving with other forms of theft
affords the same advantages as other aspects of the
unification of the theft concept. It reduces the
opportunity for technical defenses based upon legal
distinctions between the closely related activities of
stealing and receiving what is stolen. One who is found
in possession of recently stolen goods may be either the
thief or the receiver; but if the prosecution can prove
the requisite thieving state of mind it makes little
difference whether the jury infers that the defendant
took directly from the owner or acquired from the thief.
[2 Final Report of the New Jersey Criminal Law
Revision Commission, commentary to § 2C:20-7, at
232 (1971).]
In the present case, the credit card identified in the CDR-2 was stolen during the
course of a burglary that occurred in Hackensack. Thus, Hackensack Municipal
Court had jurisdiction to issue the warrant because "theft by actual taking"
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occurred in Hackensack, even though defendant was not charged in the CDR -2
with that specific offense.
Finally, because any error in the issuance of the arrest warrant was
technical, and subsumed by the indictment, we discern no reason to exclude the
evidence seized thereafter. See State v. Evers, 175 N.J. 355, 379-80 (2003).
Defendant's remaining arguments, to the extent we have not addressed them,
lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
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