STATE OF NEW JERSEY v. LANCE D. BUNN (16-06-0396, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2206-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LANCE D. BUNN,
Defendant-Appellant.
_______________________
Submitted May 23, 2022 – Decided August 1, 2022
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 16-06-0396.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alison Perrone, First Assistant Deputy
Public Defender, of counsel; Harris Fischman, Jamie D.
Brooks and J.T. Parker Murray, admitted pursuant to
Rule 1:21-3(c), on the briefs).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Daniel Finkelstein, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
A jury convicted defendant Lance D. Bunn of third-degree possession of
drugs and acquitted him of the drug-distribution offenses charged in a three-
count Union County indictment.1 One hundred and forty-eight folds of heroin
and thirteen baggies of crack cocaine were seized by police pursuant to a search
warrant executed after the surveilling detectives stopped the red 1998 Jeep
Cherokee defendant was driving when he pulled into an IHOP parking lot.
According to the search warrant affidavit, a confidential informant (CI)
told Union County Prosecutor's Office Detective Vito Colacitti defendant was
selling heroin in response to telephone orders and transporting the drugs in a red
1998 Jeep Cherokee. The CI participated in three controlled purchases during
the weeks of February 29, March 7, and March 14, 2016. Before each purchase,
the CI contacted defendant via telephone in the presence of police, arranged a
meet location and, under police surveillance, gave defendant cash that was
provided by police, in exchange for suspected heroin. Police sent the drugs to
1
The indictment was returned in June 2016, and charged defendant with: third-
degree possession of cocaine or heroin, N.J.S.A. 2C:35-10(a)(1) (count one);
third-degree possession with intent to distribute cocaine or heroin, N.J.S.A.
2C:35-5(a)(1) and (b)(3) (count two); and third-degree possession with intent to
distribute cocaine or heroin within 1,000 feet of school property, N.J.S.A.
2C:35-7 (count three).
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the Union County Prosecutor's Office Laboratory, where all three specimens
tested positive for heroin.
Prior to trial, defendant moved to compel the laboratory reports for the
purported drugs obtained during the three drug transactions described in the
affidavit. Defendant contended no laboratory tests were performed and
challenged the truth and accuracy of the affiant's statements. Defendant claimed
he needed the reports to support a suppression motion and satisfy the standard
for a Franks2 hearing. The motion judge denied defendant's application and his
ensuing motion for reconsideration.
During jury selection before a different judge, defendant moved to
suppress the evidence seized and sought an application for a material witness
order to compel the CI's testimony at a Franks hearing. Defense counsel
explained earlier that week, her investigator tracked down the CI via defendant's
telephone records. The CI divulged her name and provided a sworn written
statement, claiming she had participated in only two controlled drug transactions
2
Franks v. Delaware, 438 U.S. 154 (1978). A defendant is entitled to a Franks
hearing to challenge the veracity of a search warrant affidavit by demonstrating
a "substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant
in the warrant affidavit, and . . . the allegedly false statement is necessary to the
finding of probable cause." Id. at 155-56; see also State v. Howery, 80 N.J. 563,
567-68 (1979) (adopting the Franks standard in New Jersey).
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with defendant. Defense counsel further claimed defendant's telephone records
established only one telephone call between the CI and defendant during the
time frame at issue.
The trial judge granted defendant's application for a material witness order
and conducted a Franks hearing on the second day of trial. The testimonial
hearing spanned two days, during which the State presented the testimony of
three witnesses, including Colacitti, and defendant called two witnesses,
including the CI. During Colacitti's testimony, the State produced the laboratory
reports at issue to refresh the detective's recollection. The judge permitted the
defense to view the reports during the hearing, only.
Following argument, the trial judge rendered a detailed oral decision
denying defendant's Franks motion. Although the judge was "sympathetic" to
the CI's apparent drug addiction, he found her memory "extremely poor" and
"contradicted by the testimony of the police officers," whom the judge found
"credible." The judge also found the CI's account was countered by law
enforcement's "reports and the lab reports." In essence, the judge was persuaded
by "more than [a] preponderance of the evidence that, in fact, there were three
sales" as set forth in the affidavit.
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The trial resumed and the State rested. The defense called two witnesses;
the CI did not testify. The jury returned its verdict on June 29, 2018.
Defendant's sentencing was carried so that he could appeal his Drug
Court3 denial, but proceeded on November 30, 2018, after defendant withdrew
his appeal. The trial judge granted the State's motion for a discretionary
extended term as a persistent offender under N.J.S.A. 2C:44-3(a), and sentenced
defendant to a prison term of eight years.
The judge found aggravating factors three (risk of reoffending), six (prior
criminal record), and nine (need for deterrence), N.J.S.A. 2C:44-1(a)(3), (6),
and (9), substantially outweighed mitigating factor eight, N.J.S.A. 2C:44-
1(b)(8) ("defendant's conduct was the result of circumstances unlikely to
recur").4 The judge considered the other mitigating factors argued by defense
counsel.
In rejecting mitigating factors one (defendant's conduct did not cause or
threaten serious harm), and two (defendant did not contemplate his conduct
would cause or threaten serious harm), N.J.S.A. 2C:44-1(b)(1) and (2), the judge
3
Effective January 1, 2022, Drug Court was renamed Recovery Court.
4
The judgment of conviction erroneously reflects the judge found no mitigating
factors.
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considered the quantity of drugs "even though a jury did not find [defendant]
guilty of the possession with intent to distribute [charges]." The judge also
rejected mitigating factor five, N.J.S.A. 2C:44-1(b)(5) (the victim facilitated or
induced the commission of the crime), finding defendant "had the product"; the
CI "wanted it"; and defendant "met with her for that purpose." During colloquy
with defense counsel concerning defendant's community service, see N.J.S.A.
2C:44-1(b)(6), and post-conviction rehabilitation efforts, the judge questioned
defendant's commitment to rehabilitation, having withdrawn the appeal of his
Drug Court rejection. This appeal followed.
On appeal, defendant seeks a new Franks hearing. Alternatively, he
argues his sentence is excessive. More particularly, defendant raises the
following points for our consideration:
I. THE COURT ABUSED ITS DISCRETION BY
DENYING DEFENDANT'S MOTION TO COMPEL
DISCLOSURE OF LAB REPORTS AND DEPRIVED
DEFENDANT OF A FAIR OPPORTUNITY TO
CHALLENGE THE SEARCH WARRANT.
A. The Trial Court's Denial of [Defendant]'s Motion to
Compel Was Contrary to New Jersey's Discovery Rules
and Constituted a Misapplication of the Law.
B. The Denial of Discovery Prejudiced [Defendant] by
Depriving Him of a Meaningful Opportunity to
Challenge the Search Warrant.
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II. THE SENTENCING COURT IMPROPERLY
DISREGARDED DEFENDANT'S MITIGATING
FACTORS BASED ON IMPERMISSIBLE
CONSIDERATIONS.
A. Sentencing Standard of Review.
B. The Sentencing Court Abused Its Discretion by
Categorically Refusing to Find the Mitigating Factors,
Which Were Supported by Uncontested Evidence in the
Record.
i. The Sentencing Court Improperly Refused to Find
Mitigating Factors Solely Because the Defendant Was
Not Proceeding in Drug Court.
ii. The Sentencing Court Abused Its Discretion in
Categorically Refusing to Consider Post-Offense
Rehabilitation.
C. The Sentence Was Tainted by the Trial Court's
Improper Reliance on Acquitted Conduct.
We reject the contentions raised in point I and affirm defendant's
conviction. But we remand for resentencing without consideration of
defendant's acquitted and uncharged conduct.
I.
Defendant argues the motion judge erroneously denied his application to
compel "production of the three laboratory reports," referenced in the search
warrant affidavit, contending they were subject to "automatic disclosure" under
Rule 3:13-3. Defendant maintains, without the reports, he was unable to mount
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a "meaningful" challenge to the search warrant's validity. The State counters
disclosure of the laboratory reports fell beyond the scope of Rule 3:13-3. The
State further contends even if the reports were improperly denied, the trial judge
conducted a Franks hearing, during which defendant had access to the laboratory
reports, rendering moot defendant's motion.
While his appeal was pending, the Supreme Court decided State v. Desir,
245 N.J. 179 (2021), and defendant thereafter filed a letter pursuant to Rule 2:6-
11(d), contending the case supported his argument for disclosure of the
laboratory reports referenced in the search warrant affidavit. The State
responded, arguing "defendant received a better outcome than the defendant in
Desir because [defendant] ultimately reviewed the reports and obtained a
hearing to challenge the affidavit" in the present matter.
We afford substantial deference to trial judges when evaluating their
evidentiary determinations. State v. Cole, 229 N.J. 430, 449 (2017). We
therefore review a trial court's evidentiary ruling for abuse of discretion. State
v. Green, 236 N.J. 71, 81 (2018). We also defer to the court's factual and
credibility findings following a testimonial hearing provided they are supported
by sufficient credible evidence in the record. Accord State v. Dunbar, 229 N.J.
521, 538 (2017). Deference is afforded because the court's findings "are often
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influenced by matters such as observations of the character and demeanor of
witnesses and common human experience that are not transmitted by the
record." State v. Locurto, 157 N.J. 463, 474 (1999). We will reverse only where
the court's ruling was "so wide of the mark that a manifest denial of justice
resulted." State v. Carter, 91 N.J. 86, 106 (1982); see also State v. J.A.C., 210
N.J. 281, 295 (2012).
In Desir, the defendant sold drugs to a CI during a controlled purchase.
245 N.J. at 186. Laboratory reports confirmed the drugs sold to the CI were
"Molly,"5 and a search warrant was obtained as a result. Id. at 197. Similar to
defendant in the instant matter, the defendant in Desir sought the laboratory
reports in order to have the requisite showing needed to trigger a Franks hearing.
Ibid. The trial court denied the defense's requests for the laboratory reports.
Ibid. We reversed, holding Rule 3:13-3(b)(1) entitled defendant to the reports
"automatically." Id. at 190.
On certification granted, the Court concluded the defendant was not
automatically entitled to the laboratory reports under Rule 3:13-3(b)(1) because
the sought-after "materials d[id] not pertain to the 'determination' of the charges
5
Molly is the street name for Methylenedioxy-N-ethylcathinone. See Desir,
245 N.J. at 186.
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against [the] defendant." 245 N.J. at 205. Instead, the materials pertained to
"uncharged conduct" and, as such they were "not 'relevant' within the meaning
of Rule 3:13-3(b)(1)." Ibid. The Court further recognized because the
"defendant ha[d] not been charged for the underlying narcotics sale to the CI,"
the materials were not exculpatory "and any evidence disproving the sale would
not be material to the drugs and weapons offenses he face[d] under the
indictment." Ibid.
Similarly, we conclude defendant in the present matter was not entitled to
automatic disclosure of the laboratory reports under Rule 3:13-3(b)(1).
Colacitti's affidavit referenced three controlled buys, and the laborat ory
confirmed the substances defendant sold the CI tested positive for heroin. Those
sales were not charged in the indictment. Instead, defendant's charges stemmed
from the drugs confiscated pursuant to the search warrant executed when the
Jeep was stopped by police. Because the drugs referenced in the affidavit had
no bearing on the charges brought, the laboratory reports sought by defendant
are beyond the scope of Rule 3:13-3(b)(1).
However, the Desir Court announced a new standard governing the
disclosure of materials pertaining to a search warrant affidavit. Id. at 202-03.
Adopting the "detailed and nuanced" approach embodied in People v.
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Luttenberger, 784 P.2d 633 (Cal. 1990), this standard requires defendants to
"describe with reasonable particularity the information sought in discovery,
sustained by a plausible justification 'casting a reasonable doubt on the
truthfulness of statements made in the affidavit.'" Desir, 245 N.J. at 202-03
(quoting Luttenberger, 784 P.2d at 647). This two-pronged test "must be applied
strictly" to "prevent a fishing expedition and to respect the presumption of
validity that attaches to a warrant affidavit." Id. at 205. A defendant's "blanket
denial of culpability" is insufficient. Id. at 208 n.9. Of paramount importance
to the Court was the vital purpose confidential informants serve in law
enforcement, mindful that "even a laboratory report could place the CI at risk."
Id. at 208.
A defendant who meets this standard is "not guaranteed access to [the]
information." Id. at 207 n.6. Instead, "the court will have to review the report
in camera and consider whether it contradicts representations in the affidavit
and, if so, whether it is amenable to necessary redaction, or whether it would
pose too great a risk of jeopardizing the informant’s identity." Ibid. During this
in camera review, depending on what the documents reveal, the trial court may
grant or deny a Franks hearing. Id. at 207.
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Assuming, arguendo, the new standard enunciated in Desir applies in this
matter,6 we conclude defendant was afforded the relief required under that
standard. The trial judge conducted a Franks hearing following defendant's
belated application. During the hearing, the State divulged the laboratory
reports at issue; defense counsel was permitted to inspect the reports and cross-
examine Colacitti about their contents and creation. At the conclusion of the
testimonial hearing, the trial judge made credibility findings that are entitled to
our deference. See Dunbar, 229 N.J. at 538. We discern no reason to disturb
the judge's decision.
II.
In his second point, defendant contends his eight-year, extended-term
sentence is excessive, impermissibly based on the judge's conclusion that
defendant distributed drugs even though the jury acquitted him on the
distribution charges. The State counters "[t]he judge properly considered
defendant's intent to sell the heroin, as the jury's acquittal on the intent -to-
distribute charge[s] [wa]s not dipositive of whether defendant intended to sell
6
Although the Court did not explicitly state its holding in Desir would apply
only prospectively, it noted the "guidance above shows how trial courts should
assess similar discovery requests in the future." 245 N.J. at 207 n.7 (emphasis
added).
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the heroin." Defendant also argues the trial judge failed to find mitigating
factors that were supported by the record, in part, because defendant withdrew
his appeal of the Drug Court rejection. In that context, defendant argues the
judge improperly rejected his post-offense rehabilitation. Defendant does not
specifically challenge the judge's finding of aggravating factors three, six, and
nine.
Our "review of a sentencing court's imposition of sentence is guided by
an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318 (2018). We
do not substitute our judgment for that of the sentencing judge. State v. Case,
220 N.J. 49, 65 (2014). We will "affirm the sentence of a trial court unless: (1)
the sentencing guidelines were violated; (2) the findings of aggravating and
mitigating factors were not 'based upon competent credible evidence in the
record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]
the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration
in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). However,
deferential review of a sentence "presupposes and depends upon the proper
application of sentencing considerations." State v. Melvin, 248 N.J. 321, 341
(2021). Whether the guidelines were violated presents an issue of law that is
reviewed de novo. State v. Robinson, 217 N.J. 594, 604-05 (2014).
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While defendant's appeal was pending, the Supreme Court decided
Melvin, and its companion case, State v. Paden-Battle, 248 N.J. 321 (2021). In
both cases, at sentencing, the same judge made factual findings that contradicted
those made by the juries in acquitting the defendants. Id. at 341-45. The Court
held the due process principles inherent in Article I, paragraph 1 of the New
Jersey Constitution and the doctrine of fundamental fairness protected the
defendant in each case from the sentencing court's improper use of facts related
to acquitted conduct to enhance a sentence. Id. at 347-52.
In assessing the mitigating factors in this case, the trial judge referenced
the quantity of heroin and cocaine seized at the time of defendant's arrest,
stating:
[S]o, I don't find that having that kind of amount does
not threaten someone with serious harm. You know,
that's a lot of stuff you had, and even though a jury did
not find you guilty of the possession with intent to
distribute, I have to determine, and I have to weigh,
also, the amount of drugs that you had when I am
deciding whether or not these mitigating factors apply
as your lawyer indicates.
I don't find [mitigating factor] one. Certainly, I
don't find that you didn't contemplate your conduct
would cause or threaten harm, serious harm, with that
much drugs. I don't find that this CI person who
testified, came to court and said she . . . bought from
you . . . forced you . . . to sell to her. I don't find that
that was strong provocation. I don't find there is
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substantial grounds tending to excuse or justify your
conduct.
[(Emphasis added).]
Thereafter, when assessing mitigating factor five, the judge found the CI,
who defense counsel construed as the "victim" under that factor, did not "induce
or facilitate" the commission of the crime. Addressing defendant, the judge
stated: "You had the product. She wanted it. You met with her for that
purpose."
We are not convinced the trial judge improperly considered the quantity
of heroin and cocaine recovered in this matter in rejecting defendant's argument
that his conduct did not cause or threaten serious harm under mitigating factor
one, or that he did not contemplate such harm under mitigating factor two. The
quantity recovered was within the third-degree range.
Nor are we satisfied the judge erred by failing to find the CI "induced or
facilitated the crime" under mitigating factor five. In our view, the CI was not
a "victim" as contemplated under that factor.
However, the trial judge's general consideration of defendant's acquitted
and uncharged conduct gives us pause. While the judge correctly noted the CI
testified, her testimony occurred during the Franks hearing, outside the presence
of the jury. The CI did not testify at trial. Nor were the drug transactions
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between defendant and the CI charged in the indictment. Thus, to assure
compliance with Melvin, we remand for resentencing without consideration of
defendant's sales to the CI. On resentencing, the judge "should view defendant
as he stands before the court on that day." State v. Randolph, 210 N.J. 330, 354
(2012).
Finally, we consider defendant's post-arrest rehabilitation argument. At
sentencing, defendant presented evidence of his gainful employment as a self -
employed, property maintenance subcontractor. Two business owners
submitted letters of support; one of the owners appeared at the hearing and spoke
on defendant's behalf. Defendant also provided certificates of his participation
in community service while pending trial, and participation in several "life skills
programs" while incarcerated pending sentencing. Defendant claims the judge
discounted defendant's efforts. We disagree.
Although the judge considered defendant's decision to forego Drug Court
as contrary to the rehabilitation efforts he argued at sentencing, the judge credited
those efforts when initially finding mitigating factor nine, N.J.S.A. 2C:44-1(b)(9)
(defendant's character and attitude indicate an unlikelihood of reoffending). We
recognize the judge "t[ook] back" that factor in view of his previous finding that
defendant was likely to commit another offense under aggravating factor three.
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See State v. Baylass, 114 N.J. 169, 177 (1989) (recognizing aggravating factor
three and mitigating factor nine overlap). But the judge was convinced
"defendant's conduct was a result of circumstances unlikely to reoccur," and as
such, found mitigating factor eight. Although not specifically stated, based on
the judge's earlier findings, it appears he considered defendant's rehabilitative
efforts.
To the extent not specifically addressed, any remaining contentions lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's conviction is affirmed but the matter is remanded for
resentencing. We do not retain jurisdiction.
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