State v. Hyman
| Decision Date | 11 May 2018 |
| Docket Number | DOCKET NO. A-3869-15T1 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELEX HYMAN, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Sabatino, Ostrer, and Rose.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-06-1015.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Shiraz Imran Deen, Assistant Prosecutor, on the brief).
Defendant Elex Hyman appeals from his conviction by guilty plea following the Law Division's denial of his motions to suppress evidence. We affirm.
This appeal has its genesis in telephone conversations intercepted pursuant to a court-authorized wiretap of a cellular telephone utilized by co-defendant Alex Gantt. See N.J.S.A. 2A:156A-1 to -37. In April 2008, the Ocean County Prosecutor's Office conducted an investigation into a narcotics-distribution network led by Gantt. Following information received from intercepted calls on May 5, 2008, detectives established mobile surveillance outside Gantt's residence in Howell. The conversations indicated Gantt and co-defendant Hiram Cotto would be traveling in separate vehicles from New York to Gantt's home, and Cotto would be transporting a large quantity of cocaine.
Upon arrival, Cotto drove his car into Gantt's garage. A Howell detective then pulled his marked vehicle into Gantt's driveway, exited the car and announced, "Police!" One of the individuals in the garage lowered the garage door, but the detective ran underneath before the door closed. Carrying a pink plastic bag and running from the garage toward the entrance of the home, Cotto disregarded the detective's orders to stop, and shut the door behind him. The detective then pushed or forced open the door and ran into the house, joined by other officers.
Cotto, Gantt, and several other individuals in the house, were detained. Following the issuance of a telephonic search warrant, officers seized more than 900 grams of cocaine, currencyand drug paraphernalia from Gantt's house and garage. Defendant was not present at Gantt's home and was later arrested on a warrant issued pursuant to intercepted telephone conversations with Gantt between April and May, 2008.
On June 3, 2009, an Ocean County grand jury returned an indictment against thirteen individuals, charging defendant in one of the seven counts with second-degree conspiracy to possess with intent to distribute more than five ounces of cocaine, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1) and N.J.S.A. 2C:5-2.
Defendant joined in "every motion filed by his co-defendants." Pertinent to this appeal, in separate written opinions, Judge Wendel E. Daniels denied defendant's motions to suppress: (1) evidence seized at Gantt's residence; and (2) his intercepted telephonic conversations with Gantt.
After considering the parties' briefs, including police reports, grand jury testimony, and the search warrant affidavit, Judge Daniels denied the motion to suppress evidence seized at Gantt's residence without holding an evidentiary hearing. In a written decision issued on October 23, 2011, the judge found there were no material facts in dispute that would warrant a testimonial hearing. In doing so, he rejected the defense argument that an issue of material fact existed as to whether the Howell detective forcibly entered Gantt's residence in pursuit of Cotto.
The trial court determined law enforcement officers had probable cause to believe Cotto had picked up cocaine in New York and transported it to Gantt's home based on intercepted text messages and telephone calls. Having found the Howell detective "had sufficient probable cause to believe that Cotto possessed large quantities of cocaine[,] . . . when the detective chased Cotto into Gantt's home it was to apprehend Cotto before he could hide or destroy the cocaine in the pink plastic bag." The court, therefore, found exigent circumstances justified law enforcement's initial warrantless entry of Gantt's residence.
In a written decision issued on December 3, 2013, Judge Daniels denied defendant's motion to suppress the contents of his telephone conversations with Gantt. The judge considered oral argument, the submissions of counsel and, "at defendant's express request on the record, the [c]ourt heard seven sessions involving defendant in which he engages in a [controlled dangerous substance]-distribution conspiracy." Defendant did not, however, identify a single instance where his calls should have been minimized because they were personal. Analyzing the applicable sections of the wiretap statute, N.J.S.A. 2A:156A-21(a) and N.J.S.A. 2A:156A-12(f), and our Supreme Court's decision in State v. Catania, 85 N.J. 418 (1981), the judge rejected defendant'sclaims that the State failed to extrinsically and intrinsically minimize the communications.
In particular, the judge found the State extrinsically minimized intercepted communications by "not monitor[ing] communications between approximately 1:00 a.m. and 7:30 a.m." The judge also found the State appropriately "spot[-]monitored" calls, thereby meeting "its prima facie burden of compliance with the [intrinsic] minimization requirements." In doing so, the court observed "[t]he monitors' diligence in minimizing some conversations of less than two minutes and even some pertinent conversations is evidence of [a] good-faith effort to minimize." Indeed, defendant conceded "the State spot[-]monitored even conversations between suspected participants in the conspiracy."
Following the trial court's rulings, defendant pled guilty to an open indictment, and was sentenced to the statutory minimum five-year term of imprisonment, N.J.S.A. 2C:43-6(a)(2). Defendant preserved his right to appeal the trial judge's decisions regarding the motions to suppress. R. 3:5-7(d).
On appeal, defendant raises the following arguments for our consideration:
Our review of a trial court's factual findings in support of granting or denying a motion to suppress is deferential, even absent an evidentiary hearing. State v. S.S., 229 N.J. 360, 379 (2017). Specifically, our review is limited to determining whether "a trial court's factual findings are not supported by sufficient...
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