STATE OF NEW JERSEY VS. TYSHAUN L. DAWSON (15-08-1439 AND 15-12-2204, MONMOUTH COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4612-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYSHAUN L. DAWSON, a/k/a
TYSHUN L. DAWSON,
Defendant-Appellant.
____________________________
Submitted November 14, 2018 – Decided December 19, 2018
Before Judges Hoffman and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment Nos. 15-08-
1439 and 15-12-2204.
Joseph E. Krakora, Public Defender, attorney for
appellant (Marcia H. Blum, Assistant Deputy Public
Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
After denial of his motion to suppress, defendant Tyshaun L. Dawson
entered a guilty plea to two of the offenses charged in a multi-count indictment:
third-degree possession of a Controlled Dangerous Substance (CDS) with intent
to distribute, N.J.S.A. 2C:35-5(b)(3); and second-degree possession of a firearm
in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(a). Prior to
sentencing, defendant filed a motion to reopen the suppression hearing on the
grounds of new evidence in the form of a notarized statement prepared by Andre
Delaney. The motion to reopen was denied. On March 13, 2017, pursuant to
the plea agreement, defendant was sentenced to an aggregate fourteen years of
imprisonment, subject to forty-eight months of parole ineligibility, that also
encompassed an additional three indictments defendant previously pled guilty
to, plus fines and penalties. 1 Defendant appeals from the September 20, 2016
order denying his motion to suppress evidence. For the reasons that follow, we
affirm.
1
The record reflects that by consent of the parties, defendant's Judgment of
Conviction was amended to correct his custodial term to fourteen years instead
of fifteen years.
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I.
We recite the facts presented during the suppression hearing. Testimony
was provided by one of the arresting officers, Fil James Lao. At approximately
5:40 p.m. on April 8, 2015, plain clothes Officers Lao and Thomas Gogan were
patrolling Third Avenue in Asbury Park and observed a white van pull into the
parking lot of defendant's apartment building. According to Lao's testimony,
this apartment building was known to have "numerous activities pertaining to
trespassing, [and] drug distribution." After the officers observed the van's
passenger enter the apartment building and return a few minutes later, and, in
light of "information" that this was a "heavy, heavy narcotics area," he decided
to conduct surveillance. Based upon his training and experience, Lao testified
that he believed the van's passenger "just purchased CDS from that building."
The officers approached the van. Lao observed Delaney, the van's passenger –
and someone familiar to Lao – break off a piece of crack cocaine and pass it to
the driver, Sixto Soto. In "plain view[,]" Lao also saw Delaney holding
marijuana and heroin. After opening the van's passenger door, Delaney handed
the crack cocaine to Lao.
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While awaiting police back up, Delaney whispered to Lao that he
purchased the drugs from defendant in apartment B-7, and Lao told Delaney
"not to say anything, until [he] read him his Miranda."2
After confirming with his supervisor and colleagues, Lao testified that
further investigation was deemed warranted and Lao, Gogan, and two other
officers knocked on defendant's apartment door. After readily responding,
defendant was advised by Lao that the officers had information that narcotics
activities were taking place in defendant's apartment. Although Lao testified
that defendant appeared "surprised" and denied having "any drugs," he "invited"
them into his apartment. According to Lao's testimony, defendant consented to
a search of his apartment verbally, and in writing, by signing a "Consent to
Search" form. Lao "reiterated" to defendant that he could "stop the search at
any time." After defendant "escorted" the officers to a bedroom, a semi-
automatic handgun, ammunition, magazines, marijuana, drug paraphernalia, and
approximately $2000 in cash were found. These items became the subject of
the motion to suppress.
Defendant disputed Lao's testimony, claiming he did not consent to the
search, and told them to leave. In response to requestioning, defendant testified
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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that the officers informed him that if he did not consent to a search, they could
obtain a search warrant. He also explained that he signed the form after the
officers threatened to arrest his live-in girlfriend. Notably, defendant had an
outstanding warrant for his arrest at the time.
The judge found that Delaney's statement to police, about buying drugs
from defendant in apartment B-7, was voluntarily made. In rejecting defendant's
claims, the judge also found that defendant "invited the officers into his home ,
and thereafter made a voluntary decision to provide [them] with a completed
Consent to Search form." Defendant then filed a motion for reconsideration on
the grounds of newly discovered evidence after obtaining an affidavit from
Delaney, who did not testify at the suppression hearing. Delaney's affidavit
stated that he did not buy drugs from defendant; he denied telling Lao that he
did; and he never disclosed the source of the drugs in his possession.
Delaney's whereabouts were not made known by the State, according to
defendant, and therefore, Delaney could not be called to testify. In point of fact,
Delaney was incarcerated in the same county jail as defendant at the time the
suppression hearing was held. The record reflects that Delaney's arrest report
was in defendant's possession at the time of the hearing confirming this.
Because the judge found no "precedent for the reopening of a suppression
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hearing," an "appeal" was the "only viable avenue to seek the relief that is
sought," . . . . "[U]nder the[se] circumstances[,]" he denied the motion.
II.
On appeal, defendant presents the following arguments for our
consideration:
THE TRIAL COURT'S REFUSAL TO RECONSIDER
ITS SUPPRESSION RULING IN LIGHT OF THE
NEWLY DISCOVERED EVIDENCE WAS BASED
ON ERRORS OF LAW AND FACT AND VIOLATED
DEFENDANT'S CONSTITUTIONAL PROTECTION
AGAINST UNREASONABLE SEARCH AND
SEIZURE AND RIGHTS TO DUE PROCESS AND A
FAIR TRIAL.
The Court Was Mistaken on the Law.
The Court Was Mistaken on the Facts.
In reviewing a denial of a motion to suppress on appeal, we "must uphold
the factual findings underlying the trial court's decision so long as" there is
sufficient and credible record support. State v. Elders, 192 N.J. 224, 243 (2007).
"[A]n appellate court should not disturb the trial court's findings merely because
'it might have reached a different conclusion were it the trial tribunal.'" State v.
Thompson, 244 N.J. 324, 345 (2016) (quoting Elders, 192 N.J. at 244). The trial
court's legal conclusions, however, are not entitled to the same deference –
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"appellate review of legal determinations is plenary." State v. Handy, 206 N.J.
39, 45 (2011).
Under both the federal and state constitutions, a warrantless search is
presumptively invalid unless it "falls within one of the few well-delineated
exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19 (2004)
(quoting State v. Maryland, 167 N.J. 471, 482 (2001)).
A reviewing court must determine whether the State has met its burden,
by a preponderance of the evidence, to establish the warrantless search or seizure
was justified in light of the totality of the circumstances. See Illinois v. Gates,
462 U.S. 213, 238 (1983).
The judge rendered an oral decision immediately following argument by
counsel on the motion for reconsideration, and mistakenly referred to defendant
as "Delaney" instead of "Dawson." Closing arguments were also heard by the
judge that clarified the mistaken reference to Delaney. Counsel did not object
or attempt to correct the record. Clearly, the judge simply misspoke. The record
reflects that the judge "reviewed the letter memorandum submitted by [defense
counsel] in support of her application to reopen the suppression hearing." After
considering the totality of the facts, and in denying the motion to reopen the
suppression hearing, the judge emphasized that defendant's credibility was not
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the sole basis of the court's decision. Thus, we find no merit to defendant's
argument as to the judge's incorrect reference to defendant because no confusion
as to defendant's true identity has been proven, no mistakes of fact have been
shown, and there is no reversible error.
Equally unavailing is defendant's contention that the judge erred as a
matter of law because the judge failed to appreciate his authority to reopen the
suppression hearing. Defendant failed to present a compelling reason for the
court to do so because defendant was aware of Delaney's involvement in the
events leading to his own arrest, and both of them were incarcerated in the same
county jail. Thus, defendant's contention that he was somehow prejudiced lacks
any merit. Nothing has been provided by defendant to disturb the credibility
assessments and findings of the judge at the suppression hearing, or his
determination that Lao was more credible than defendant.
After examining the record and briefs, we conclude that defendant's
remaining arguments lack merit and do not warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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