P.S. VS. BOARD OF REVIEW(BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE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-0374-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDRE T. MITCHELL, a/k/a
MITCHELL ANDRE,
Defendant-Appellant.
____________________________
Submitted January 25, 2017 – Decided March 1, 2017
Before Judges Accurso and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
12-10-1023.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alison Perrone, Designated
Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Laura Sunyak,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Following the denial of his motion to suppress evidence
seized pursuant to a search warrant, defendant Andre T. Mitchell
pled guilty to second-degree possession of cocaine with intent
to distribute, N.J.S.A. 2C:35-5a(1), in accord with a negotiated
agreement and was sentenced to seven years in State prison with
three and a half years of parole ineligibility. He appeals the
denial of his motion, raising two issues for our consideration.
POINT I
THE COURT BELOW ERRED IN DENYING DEFENDANT'S
MOTION TO SUPPRESS BECAUSE THERE WAS NO
CREDIBLE EVIDENCE THAT THE POLICE HAD
COMPLIED WITH THE KNOCK AND ANNOUNCE
REQUIREMENT OF THE SEARCH WARRANT.
POINT II
THE MOTION TO SUPPRESS SHOULD HAVE BEEN
GRANTED BECAUSE THE POLICE DID NOT WAIT A
REASONABLE AMOUNT OF TIME BEFORE THEY
FORCIBLY ENTERED DEFENDANT'S APARTMENT.
(Not Raised Below).
Because the State's evidence supports the trial court's factual
findings, and there was no error in its application of the law
to those facts, we affirm.
The only two witnesses at the suppression hearing were
defendant and the supervisor of the State Police Tactical Unit
which executed the "knock and announce" search warrant.
Defendant testified he was at his girlfriend's apartment in
Trenton watching television before going to pick up her son from
school when officers in "tactical army gear" broke down the door
to the apartment. He testified that although he and his
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girlfriend were sitting in one of the apartment's two bedrooms
not twenty feet from the front door, he did not hear a knock or
anyone call out before the officers broke through the door.
Defendant could not recall how many officers were involved or
whether their uniforms identified them as police. When the
judge asked about the television, defendant replied, "[w]e had
it on to an extent, but . . . we turned it down because, as I
had said, we [were] going to pick up her son from school so we
turned everything off" before hearing the bangs of the battering
ram.
The supervisor of the State Police Tactical Unit testified
the Trenton police requested his unit's assistance in executing
the search warrant for the apartment. After reviewing the
warrant, he and his nine-member team went with Trenton
detectives to defendant's apartment building shortly before
three o'clock in the afternoon.
After entering an open door on the first floor, the
officer's team proceeded up a stairwell to defendant's
girlfriend's apartment on the second floor. The officer
testified he knocked at the metal door "several times" and
announced "State Police," "[a]t least once." The officer
testified he had been a part of the tactical unit for ten years,
had executed over 1000 warrants and was familiar with the layout
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of the apartments. After waiting "about [twenty] seconds," long
enough to allow someone to answer the door, he and another
officer used a "rabbit tool" to force entry. Inside, Trenton
police recovered 229 grams of cocaine, three small baggies of
suspected marijuana, four glassine envelopes of suspected
heroin, narcotics paraphernalia, $466 in U.S. currency and a .22
caliber starter pistol.
Having heard the testimony, Judge Thomas Brown denied
defendant's motion to suppress the evidence, rejecting
defendant's argument the officers "failed to knock and announce
their presence prior to the forced entry." The judge found the
officer "testified credibly . . . consistent with the
requirements of the search warrant, that he knocked on the door
using his fist and yelled, . . . State Police, with the
intention to make his presence known. After waiting
approximately [twenty] seconds with no response," the officers
forced entry.
Judge Brown found:
In light of the holdings in [United
States v.] Banks, [540 U.S. 31, 35-36, 124
S. Ct. 521, 524-25, 157 L. Ed. 2d 343, 352
(2003),] Hudson [v. Michigan, 547 U.S. 586,
594, 126 S. Ct. 2159, 2165, 165 L. Ed. 2d
56, 66 (2006)] and [State v.] Rockford, [213
N.J. 424, 450-52 (2013),] . . . waiting
approximately [twenty] seconds was a
reasonable amount of time given the time of
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day, the size of the apartment and the fact
that there was reason to believe that the
evidence; that is, narcotics, could be
destroyed.
Based on the credible testimony and applying the applicable law,
the judge concluded "the warrant was executed in accordance with
its requirements." This appeal followed.
Our standard of review on a motion to suppress is limited.
State v. Gamble, 218 N.J. 412, 424-25 (2014). We "give
deference to those findings of the trial judge which are
substantially influenced by his opportunity to hear and see the
witnesses and to have the 'feel' of the case, which a reviewing
court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).
If our review satisfies us the trial court's factual findings
could reasonably have been reached on sufficient, credible
evidence present in the record, those findings are binding on
appeal. Gamble, supra, 218 N.J. at 424. Our review of the
trial court's application of the law to the facts, of course, is
plenary. State v. Hubbard, 222 N.J. 249, 263 (2015).
Having reviewed the motion transcripts and the current law
governing execution of a "knock and announce" search warrant,
see Rockford, supra, 213 N.J. at 450-52, defendant has given us
no cause to disturb the judge's factual findings or legal
conclusions here. Accordingly, we affirm Judge Brown's denial
5 A-0374-15T1
of defendant's motion to suppress substantially for the reasons
stated in his carefully reasoned opinion from the bench on March
6, 2014.
Affirmed.
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