State v. Bunn

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: PER CURIAM
• Docket Number: A-2206-18
• Decision Date: 01 August 2022
• Citation: State v. Bunn, A-2206-18 (N.J. Super. App. Div. Aug 01, 2022)
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. LANCE D. BUNN, Defendant-Appellant.

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STATE OF NEW JERSEY, Plaintiff-Respondent, v. LANCE D. BUNN, Defendant-Appellant.

No. A-2206-18

Superior Court of New Jersey, Appellate Division

August 1, 2022

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.

Submitted May 23, 2022

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).

Before Judges Accurso and Rose.

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 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 Franks^[2] 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 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.

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 Court^[3] 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 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.

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 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 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...