State v. Thomas, 110819 NJSUP, A-2578-17T4

• Opinion Judge: PER CURIAM.
• Party Name: STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAREEF J. THOMAS, a/k/a SHARIF THOMAS, Defendant-Appellant.
• Attorney: Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Reana Garcia, Special Deputy Attorney General/Acting Assistant Prosecutor, of c...
• Judge Panel: Before Judges Koblitz and Mawla.
• Case Date: November 08, 2019
• Court: New Jersey Superior Court

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.

SHAREEF J. THOMAS, a/k/a SHARIF THOMAS, Defendant-Appellant.

No. A-2578-17T4

Superior Court of New Jersey, Appellate Division

November 8, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 30, 2019

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 16-02-0155 and 16-02-0156.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Reana Garcia, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Koblitz and Mawla.

PER CURIAM.

Defendant Shareef J. Thomas appeals from a January 2, 2018 conviction for possession of a handgun, entered on a plea, after the trial court denied his motion to suppress. We reverse.

The only witnesses to testify at the suppression hearing were Elizabeth police officer Edward Benenati, Jr. and defendant. Benenati testified he and his partner Officer David Haverty were dispatched to the Mravlag Manor Housing Projects the night of October 14, 2015, regarding a fight between "a couple of males and a female near the pool area." An updated call stated the fight was in a third-floor apartment.

Benenati and Haverty were not the first to arrive on the scene. He testified Lieutenant Michael W. Kiley and Detective Luis Garcia were already at the third-floor apartment, interviewing the victim. Haverty began ascending the stairs to the apartment before Benenati. According to Benenati, Haverty was on the stairs between the second and third floor and Benenati was on the second-floor landing when Haverty leaned over the railing and instructed Benenati to stop defendant, who had already descended the stairs past Haverty and was now also on the second-floor landing.

Benenati testified he "was instructed by [Haverty, ] who was instructed by [Kiley] on the third floor to stop [defendant]." Benenati stated "I didn't know why at that point, but I knew he was pertinent to our investigation."¹ According to Benenati, Haverty descended the stairs to the second-floor landing and "told [Benenati] that [defendant] was being placed under arrest for domestic violence." After Benenati and Haverty "both together put handcuffs on [defendant]," they searched him and the garbage bags he was carrying and recovered a gun from one of the bags. Defendant moved to suppress the evidence of the warrantless search.

Following the hearing, the motion judge issued a written decision denying defendant's motion. The judge credited Benenati's testimony and stated: I find that the police [o]fficer's testimony was credible. In what was described as a somewhat typical domestic violence call, police respond to the scene, interview an alleged victim, observe signs of injury to the victim which the victim claims to be a result of domestic violence and effectuate an arrest of the defendant as they are required to do [pursuant to N.J.S.A. 2C:25-21(a)].

. . . .

I conclude that the arrest pursuant to the Prevention of Domestic Violence Act was appropriate. Police responded to a call of a domestic dispute. The defendant is seen coming from the direction of an apartment occupied by a person who reports that the...