STATE OF NEW JERSEY v. CRISTINO SANTIAGO (19-06-0325, MERCER COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-0362-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CRISTINO SANTIAGO, a/k/a
CRISTINO SANTIAGO, III,
and CRISTINO A. SANTIAGO,
Defendant-Appellant.
___________________________
Submitted September 29, 2022 – Decided October 5, 2022
Before Judges Gooden Brown and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 19-06-0325.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michael Denny, Assistant Deputy Public
Defender, of counsel and on the brief).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Boris Moczula, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Cristino Santiago appeals from a November 12, 2020
conviction entered after a guilty plea for second-degree unlawful possession of
a handgun, N.J.S.A. 2C:39-5(b)(1). On appeal, defendant asserts that violations
of the knock-and-announce rule requires the reversal of the trial court's
December 19, 2019 denial of a motion to suppress physical evidence obtai ned
by police during the execution of an arrest warrant. We affirm.
We discern the following facts from the record. On March 1, 2019,
defendant was charged with animal cruelty and multiple weapons offenses for
which a warrant was issued for his arrest. Following issuance of the warrant,
Trenton Police Detective Tara Dzurkoc, who was assigned to the U.S. Marshals
fugitive taskforce, opened a fugitive investigation into defendant's whereabouts.
During her investigation, Dzurkoc utilized CLEAR, a public records database,
which revealed that defendant was residing at the subject residence—an address
on Chambers Street, Apartment 1 in Trenton—with his mother and girlfriend,
co-defendant Ashley Cedeno.1
The Chambers Street residence is a two-family apartment building. There
is an outside, common doorway that leads to the entrances for Apartments 1 and
1
Cedeno is not a party to this appeal.
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2. On the left side of the home, there is a concrete sidewalk that leads to the
back yard. The back yard is enclosed by a four-foot-high plywood fence. The
back door of Apartment 1 opens to a small concrete patio.
On March 11, 2019, prior to executing the warrant, Dzurkoc testified that
she briefed the U.S. Marshals on the warrant, defendant's criminal history, 2 and
disseminated a photo of defendant from his Facebook page. At approximately
noon that same day, members of the U.S. Marshals taskforce established a
perimeter around the outside of the residence.
In forming a perimeter, the taskforce was broken up into two teams.
Dzurkoc, the case detective, assisted the front entry team, which included six or
seven officers. New Jersey State Police Detective Anthony Pompeo was
assigned to the rear team, which included two other officers.
Pompeo testified that, once his team reached the back gate, he encountered
a barking pit bull. After entering the back yard, Pompeo set up in the center of
the yard facing the rear of the home. He then observed defendant open the back
door of the residence and step out onto the concrete patio. After the rear team
announced themselves, defendant hastily retreated back inside the residence.
2
Defendant has five prior convictions, including one for a weapons offense.
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Pompeo radioed to the front entry team to alert them that he saw defendant exit
and then reenter the residence.
After receiving the alert that defendant had reentered the dwelling, the
front entry team knocked and announced their presence on the outside, common
door; entered into the hallway with both apartment doors; and, after receiving
no response, forced entry into the door of Apartment 1 without knocking.3 Upon
entry, Dzurkoc observed a semi-automatic handgun in the living room by the
couch.
Dzurkoc also heard running water coming from a bathroom adjoining the
living room; the door was partially open. Upon opening the bathroom door,
Dzurkoc observed Cedeno wrapped in a towel. Around the same time, Pompeo
radioed Dzurkoc that defendant was arrested after running out the back door for
a second time.
Dzurkoc testified that she then detained Cedeno while officers cleared the
adjoining rooms; an infant was located asleep in a bedroom next to the
bathroom. Cedeno requested permission to put on some clothing since she was
3
At the suppression hearing, Dzurkoc testified that the front entry team
"rammed" the door to Apartment 1, however, she stated that she did not witness
it occur.
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only in a towel. Dzurkoc testified that she escorted Cedeno to the bedroom, due
to concerns for officers' safety.
Immediately upon entering the bedroom, Dzurkoc testified that she
observed a handgun on a desk. The detective further testified that, while Cedeno
was gathering clothes from a bin on the floor, she told the officers that she felt
another gun in the bin. Dzurkoc told Cedeno to remove her hands and looked
for herself; Dzurkoc saw a black M4-style rifle with a large capacity magazine
in the bin.
A search warrant for the apartment was subsequently obtained and
executed that same day. A search of the apartment's interior yielded a total of
five guns and a large capacity magazine, marijuana, mail addressed to defendant
at the Chambers Street address, and defendant's wallet.
On June 6, 2019, a Mercer County grand jury returned a six-count
indictment,4 charging defendant with: second-degree unlawful possession of a
weapon, contrary to N.J.S.A. 2C:39-5(b)(1) (count one); second-degree
possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a)
(count two); third-degree animal cruelty, contrary to N.J.S.A. 4:22-17(c)(1) and
4
Mercer County Indictment No. 19-06-0325.
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4:22-17(d)(1)(b) (count three); fourth-degree possession of a large capacity
ammunition magazine, contrary to N.J.S.A. 2C:39-3(j) (count four); and second-
degree possession of a weapon by certain persons not to have weapons, contrary
to N.J.S.A. 2C:39-7(b)(1) (count six).
On September 27, 2019, defendant filed a motion to suppress the physical
evidence that had been seized by police on March 11, 2019. At the hearing,
defendant testified that he was not living at the Chambers Street apartment in
March of 2019, but was living on Randall Avenue with Cedeno, her mother, and
her brother. Defendant testified that he never entered the Chambers Street
residence on March 11, 2019; rather, defendant testified that he was immediately
arrested in the back yard of the residence when the officers arrived and
subsequently escorted to the front of the house. Defendant testified that, when
he reached the front of the house and was being placed in a police vehicle, he
observed one of the officers go through the front door and wave the other
officers to come inside.
Based on this version of events, defendant argued that the court should
suppress all physical evidence recovered, because "the police lacked a basis to
conduct a 'protective sweep' where [defendant] was arrested outside of the
residence and there was no information that suggested a risk of violence was
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posed by anyone inside the residence." In addition, defense counsel submit ted
that "the evidence seized as a result of the search warrant is 'fruit of the
poisonous tree' and should also be suppressed" because the affidavit for the
search warrant was based on information gathered during the allegedly
unconstitutional protective sweep. Pertinent to this appeal, on the motion to
suppress, defendant did not argue that officers were required to knock on the
wooden back gate and announce before entering the back yard, nor did he argue
that the affidavit in support of the search warrant to search the residence was
fruit of the poisonous tree emanating from the initial knock and announce
violation.
On December 19, 2019, the judge denied defendant's motion in an order
and oral opinion. The judge found the testimony of Pompeo and Dzurkoc
credible while finding that defendant's testimony was not believable. In his oral
opinion, the judge held that "the officers lawfully entered the residence to
execute the arrest warrant of [defendant]" and observed the first handgun in
plain view, which provided the basis for the officer to obtain a search warrant
for the premises.
On September 10, 2020, defendant plead guilty to count one of the
indictment, second-degree unlawful possession of a weapon, contrary to
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N.J.S.A. 2C:39-5(b)(1). Defendant further agreed to forfeit the five firearms
seized by police on March 11, 2019. On October 20, 2020, in accordance with
the plea agreement, defendant was sentenced to a five-year prison term, with
three and one-half years of parole ineligibility.
On appeal, defendant presents the following arguments for our
consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
MOTION TO SUPPRESS BECAUSE THE POLICE
UNLAWFULLY ENTERED THE FENCED-IN
BACKYARD OF THE DEFENDANT'S RESIDENCE
AND BECAUSE THEY VIOLATED THE KNOCK-
AND-ANNOUNCE RULE.
1. Because the police entered the private backyard
without abiding by the knock-and-announce
precautions and prior to knowing that Santiago
was actually present in the house, their entry was
unconstitutional, requiring suppression of all of
the evidence.
2. Because the police failed to announce their
purpose prior to entry, the knock-and-announce
rule was violated, requiring suppression of the
evidence.
The scope of our review of a decision on a motion to suppress is limited.
State v. Ahmad, 246 N.J. 592, 609 (2021); State v. Nelson, 237 N.J. 540, 551
(2019). "Generally, on appellate review, a trial court's factual findings in
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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.
A.M., 237 N.J. 384, 395 (2019) (quoting State v. S.S., 229 N.J. 360, 374 (2017)).
We give deference to those factual findings in recognition of the trial court's
"opportunity to hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy." State v. Elders, 192 N.J. 224, 244
(2007). We "ordinarily will not disturb the trial court's factual findings unless
they are 'so clearly mistaken that the interests of justice demand intervention
and correction.'" State v. Goldsmith, 251 N.J. 384, 398 (2022) (quoting State v.
Gamble, 218 N.J. 412, 425 (2014)). However, legal conclusions to be drawn
from those facts are reviewed de novo. State v. Radel, 249 N.J. 469, 493 (2022);
State v. Hubbard, 222 N.J. 249, 263 (2015).
"Appellate review is not limitless." State v. Robinson, 200 N.J. 1, 19
(2009). It is well established that we will not consider an argument which was
not raised before the trial court. Selective Ins. Co. of Am. v. Rothman, 208 N.J.
580, 586 (2012). "[O]ur appellate courts will decline to consider questions or
issues not properly presented to the trial court when an opportunity for such a
presentation is available 'unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public interest.'" Nieder
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v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co.
v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)).
Where an issue was "never . . . raised before the trial court, . . . its factual
antecedents" were "never . . . subjected to the rigors of an adversary hearing,"
and "its legal propriety" was "never . . . ruled on by the trial court, the issue was
not properly preserved for appellate review." Robinson, 200 N.J. at 18-19. We
have extended this procedural bar to constitutional issues not raised before the
trial court. State v. Jenkins, 221 N.J. Super. 286, 292 (App. Div. 1987) ("It is
now well established that constitutional claims, such as Fourth Amendment
rights, may be waived unless properly and timely asserted."); see State v. Cox,
114 N.J. Super. 556, 559 (App. Div. 1971) ("R[ule] 3:5-7 is strictly adhered to
. . . .").
With these guiding principles in mind, we decline to consider defendant's
arguments because they were not preserved for our review. Defendant's knock-
and-announce claims were not "properly presented to the trial court" and do not
"go to the jurisdiction of the trial court or concern matters of great public
interest." Robinson, 200 N.J. at 20. Defendant had an opportunity to present
these claims at the December 10 and 17, 2019 suppression hearings, but failed
to do so. Because our jurisdiction is rightly "bounded by the proofs and
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objections critically explored on the record before the trial court," we must
consider defendant's knock-and-announce claims waived.5
To the extent that we have not addressed defendant's remaining
arguments, we find that they lack sufficient merit to warrant discussion in a
written opinion. Rule 2:11-3(e)(2).
Affirmed. We do not retain jurisdiction.
5
On appeal, defendant did not pursue the arguments he made at the suppression
hearing, the viability of which are dependent on a finding that defendant's
version of the events was credible. We deem those issues waived. See Skl
odowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not
briefed on appeal is deemed waived.").
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