NOT FOR PUBLICATION WITHOUT THE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-5132-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LARRY AUSTIN,
Defendant-Appellant.
Submitted April 27, 2017 - Decided May 25, 2017
Before Judges Hoffman and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
11-03-0410.
Joseph E. Krakora, Public Defendant, attorney
for appellant (Stephen W. Kirsch, Assistant
Deputy Public Defender, of counsel and on the
brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Erin M. Campbell,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Larry Austin appeals from a March 21, 2013 order
denying his motion to suppress evidence. Defendant entered a
negotiated agreement pleading guilty to the first-degree crimes
of aggravated manslaughter, N.J.S.A. 2C:11-4(a), and two counts
of armed robbery, N.J.S.A. 2C:15-1, for which he was sentenced to
a forty-four year term of incarceration, subject to the 85% parole
ineligibility period required by the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. Defendant additionally challenges the imposed
sentence as excessive. Because we find the warrantless search
yielding the evidence defendant sought to suppress was undertaken
by consent, and because the imposition of consecutive sentences
for defendant's convictions were properly supported by the trial
judge's findings, we affirm.
These facts are taken from the suppression hearing. Defendant
sought to suppress the evidence police obtained from a residence
he shared with his mother and brother by way of a warrantless
search. The trial judge denied defendant's motion in a written
opinion, and on September 9, 2014, defendant subsequently pled
guilty to aggravated manslaughter and two counts of first-degree
robbery. As a part of his plea, defendant admitted that on
September 4, 2010, he robbed three victims in Jersey City at
gunpoint, inflicting bodily injury on two victims, and fatally
shooting the third victim in the back of the neck. On October 23,
2 A-5132-14T4
2014, the trial judge sentenced defendant to a total of forty-four
years with 85% parole ineligibility - twenty-four years for the
aggravated manslaughter, and two ten-year terms - one for each
robbery, all three sentences to run consecutively to one another.
On appeal, defendant contends:
POINT I
DEFENDANT'S MOTION TO SUPPRESS THE ITEMS
SEIZED SHOULD HAVE BEEN GRANTED; POLICE WERE
OBLIGATED TO ASK HIM WHETHER HE CONSENTED TO
THE SEARCH OF THE APARTMENT WHERE HE LIVED
WHEN HE WAS THE SUSPECT IN THE CASE AND, AT
THE TIME, PRESENT AT THE SCENE, RATHER THAN
ASKING ANOTHER OCCUPANT OF THE HOME FOR
CONSENT INSTEAD, THEREBY PURPOSELY BYPASSING
DEFENDANT.
POINT II
THE SENTENCE IMPOSED APPEARS TO BE BEYOND THE
UPPER LIMIT OF THE TERMS OF THE PLEA BARGAIN;
IT IS ALSO MANIFESTLY EXCESSIVE, THEREBY
REQUIRING A REMAND FOR RESENTENCING.
We examine each of these arguments. This court "reviewing a
motion to suppress must uphold the factual findings underlying the
trial court's decision so long as those findings are supported by
sufficient credible evidence in the record." State v. Elders, 192
N.J. 224, 243 (2007)(internal citations omitted). See also State
v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990)(holding that
the standard in reviewing a motion to suppress is whether the
3 A-5132-14T4
"findings made by the judge could reasonably have been reached on
sufficient credible evidence present in the record.")
The United States Constitution and the New Jersey
Constitution both guarantee the right of persons to be free from
unreasonable searches and seizure in their home. U.S. Const.
amend. IV; N.J. Const. art. I, ¶7. Warrantless searches are
presumptively invalid unless, among other exceptions, voluntary
consent to the search, without coercion or duress, is provided.
Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S. Ct. 2041,
2059, 36 L. Ed. 2d 854, 875 (1973); State v. Domicz, 188 N.J. 285,
308 (2006). Our Supreme Court has held that in order for a search
"[t]o be voluntary, the consent must be 'unequivocal and specific'
and 'freely and intelligently given.'" State v. King, 44 N.J.
346, 352 (1965) (quoting Judd v. United States, 89 U.S. App. D.C.
64, 66, 190 F. 2d 649, 651 (D.C. Cir. 1951)). Further, when
consent to search is sought, our law holds that the individual
from whom consent is sought must have "knowledge of the right to
refuse consent." State v. Johnson, 68 N.J. 349, 354 (1975).
Consent may be provided by a third party with lawful authority
over the premises or objects to be searched. United States v.
Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242,
249 (1974). That third party may be a co-occupant of the premises.
Id. at 171, 94 S. Ct. at 993, 39 L. Ed. 2d at 250. A co-occupant's
4 A-5132-14T4
consent will be deemed invalid if the other occupant/target of the
search is present and objects to the search. Georgia v. Randolph,
547 U.S. 103, 110, 122-23 S. Ct. 1515, 1528, 164 L. Ed. 2d 208,
227 (2006). However, where both co-occupants are present, our law
does not require that police poll each one for consent. Id. at
122, 126 S. Ct. at 1527, 164 L. Ed. 2d at 227. In Randolph, the
United States Supreme Court held that requiring the police "to
find a potentially objecting co-tenant before acting on the
permission they had already received . . . [would devolve] into a
test about the adequacy of the police's efforts to consult with a
potential objector." Ibid.
Recently, in State v. Lamb, 218 N.J. 300 (2014), our Supreme
Court upheld a warrantless search by consent where the stepfather
of a defendant refused a request to search. The defendant and his
stepfather then left the residence. Id. at 305. Police were then
contacted by the defendant's girlfriend who provided the police
with information, giving them probable cause to arrest the
defendant while he was away from the residence. Ibid. Police then
obtained consent from defendant's mother who remained at the
residence. Ibid. The Lamb Court found the probable cause to
arrest defendant and the stepfather's exit from the residence were
not "designed to prevent either occupant from objecting to the
warrantless search." Id. at 320.
5 A-5132-14T4
Here, the trial judge conducted a three-day hearing and
considered the testimony of six witnesses, including the arresting
officers and witnesses presented by defendant. Police obtained a
warrant for defendant's arrest on September 4, 2010. That
afternoon, police arrested and Mirandized defendant at a
convenience store nearby his residence. He was transported to his
residence in a police vehicle. Once there, police informed his
mother defendant had been arrested and was in the vehicle.
Defendant's mother went to the vehicle and was able to speak to
him. Thereafter, police accompanied defendant's mother to the
residence and sought consent to search it. Defendant's mother
confirmed she was a legal resident of the apartment, which she
shared with defendant and his brother, and was advised of her
right to refuse or terminate the search. She verbally consented
and executed a consent form before the search commenced.
We have found where there is a mutual residence, a third-
party's consent to search is colored by whether the third-party
"possessed common authority over or other sufficient relationship
to the premises or effects sought to be inspected." State v.
Miller, 159 N.J. Super. 552, 557 (App. Div. 1978) (quoting Matlock
supra, 415 U.S. at 169-72, 94 S. Ct. at 993, 39 L. Ed. 2d at 250).
The authority of the third-party:
6 A-5132-14T4
[R]elies not upon the law of property, [b]ut
rests rather on mutual use of the property by
persons generally having joint access or
control for most purposes, so that it is
reasonable to recognize that any of the co-
habitants has the right to permit the
inspection in his own right and that others
have assumed the risk that one of their number
might permit the common area to be searched.
[Id. at 557-58 (quoting Matlock, supra, 415
U.S. at 169-72, 94 S. Ct. at 992-93, 39 L. Ed.
2d at 248-50).]
Here, the trial judge found police seized defendant's jeans,
bearing brown stains believed to be blood spatter, from a chair
in the common kitchen area. It was reasonable for the trial judge
to conclude defendant's mother had authority to access the kitchen.
Similarly, the trial judge was correct to conclude defendant
assumed the risk his jeans would be discovered when he left them
in the common area of the kitchen. It was also reasonable for the
trial court to conclude defendant's mother possessed authority to
consent to search his bedroom, which he shared with his brother,
because she was on the lease and because she entered to wake
defendant's brother after police entered the apartment. In
defendant's bedroom, police seized other evidence including three
shotgun shells, three cell phones, an mp3 player, three spiral
notebooks, thirty-six dollars, and a Probation notice. No evidence
exists of either he or his brother restricting their mother's
right to entry before she provided the police with both verbal and
7 A-5132-14T4
written authorization to search the entire apartment. Because the
consent provided by defendant's mother was valid as to the entire
residence, we decline to invalidate the search on account of
defendant's brother's after-the-fact refusal to sign the consent
to search form. In other words, the fact the brother did not sign
the consent to search does not disrupt or affect the search of his
bedroom already underway and authorized by his mother's consent.
The factual findings of the trial judge are supported by
substantial, credible evidence in the record.
We discern no basis to disturb the trial judge's findings the
consent here was unequivocal, voluntary, and knowing. No evidence
of either coercion or duress exists in the record before us. No
evidence exists of police inappropriately detaining defendant for
the purpose of obtaining consent from his mother. Defendant's
detainer was pursuant to a valid arrest warrant. Moreover, the
police did not search his residence until consent was validly
obtained. For these reasons, the trial judge's denial of
defendant's motion to suppress is affirmed.
Defendant next challenges as excessive and beyond the upper
limits of his plea the length of his aggregate sentence of forty-
four years with 85% parole ineligibility. He also challenges the
imposition of consecutive rather than concurrent sentences.
8 A-5132-14T4
We review a sentence to discern whether the trial court's
findings were "based upon findings of fact that are grounded in
competent, reasonably credible evidence[;]" whether the trial
court applied the "correct legal principles in exercising its
discretion[;]" and whether the sentence should be modified due to
"such a clear error of judgment that it shocks the judicial
conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). If we
are convinced the trial court's sentence does not violate the
sentencing guidelines, the court made adequate findings of the
aggravating and mitigating factors based on the evidence, and its
determination is not clearly unreasonable, we will affirm the
sentencing determination. See Id. at 364-65.
Where a defendant challenges the imposition of a consecutive
sentence, we must determine whether the trial court properly
considered the following factors:
(a) the crimes and their objectives were
predominantly independent of each other;
(b) the crimes involved separate acts of
violence or threats of violence;
(c) the crimes were committed at different
times or separate places rather than being
committed so closely in time and place as to
indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple
victims;
9 A-5132-14T4
(e) the convictions for which the sentences
are to be imposed are numerous.
[State v. Yarbough, 100 N.J. 627, 644 (1985), cert.
denied, 475 U.S. 1014, 106 S. Ct. 1193 89 L.Ed. 2d
308.
In urging reversal of his sentence, defendant argues that he
did not receive the benefit of his bargain by agreeing to a plea
in exchange for a lesser sentence. Defendant acknowledges his
plea was "open," but suggests his expectation was the term of
incarceration would not exceed thirty-three years.
At defendant's September 9, 2014 plea hearing, the State
clearly expressed its intention to seek a sentence up to seventy
years:
[The Prosecutor]: It is the state's
understanding that the defendant will plead
guilty on indictment 0410-03 of the 2011 term
on Count One as amended to charge aggravated
manslaughter. In exchange for that guilty
plea, the State will be free to [seek] up to
thirty years in New Jersey State Prison with
eighty-five percent parole ineligibility.
The defendant will plead guilty to count four
of the indictment charging armed robbery in
the first degree. In exchange for that guilty
plea, the State will be free to [seek] up to
twenty years in New Jersey state prison with
eighty-five percent parole ineligibility.
The defendant will plead guilty to count five
of the indictment charging armed robbery in
the first degree. The State will be free to
[seek] up to twenty years [in] New Jersey
state prison with eighty-five percent parole
ineligibility.
10 A-5132-14T4
The State will be asking that those sentences
run consecutively to one another.
Likewise, the pre-sentence report sets forth an aggregate
term of seventy years sought by the State. The plea form initialed
and signed by defendant clearly sets forth the seventy years sought
by the State. The plea agreement recites the thirty-three years,
which defendant asserts should have been the maximum; however, the
context, as stated on the plea form, notes this represents the 85%
parole ineligibility period as applied to a forty-four year
sentence.
Defendant also argues the imposition of three consecutive
terms was excessive given his lack of an adult criminal record.
While defendant acknowledges that some form of consecutive
sentence was appropriate, he urges that the robberies should have
been considered one crime whose sentence should have run
consecutive to the homicide as opposed to two separate robbery
sentences running consecutive to each other and to the homicide.
Our role in reviewing a sentence is not to discern whether a
different sentence should have been imposed, but whether "there
is a 'clear showing of abuse of discretion.'" State v. Bolvito,
217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503,
512 (1979)). As our Supreme Court stated in Yarbough, "there can
11 A-5132-14T4
be no free crimes in a system for which the punishment shall fit
the crime." Yarbough, supra, 100 N.J. at 643.
The trial judge's sentence is sound. As noted in the
transcript of the sentencing proceeding, the trial judge
considered the presentence report, the arguments of counsel,
statements on behalf of defendant himself and family members, the
deceased victim's mother, and one of the victims. The trial court
considered defendant's juvenile record, which it found contained
similar crimes of theft. The trial judge found two aggravating
factors and no mitigating factors favoring defendant. We see no
basis to disturb these findings; they are based on the credible
evidence in the record.
Next, the judge reviewed the applicable Yarbough guidelines
and concluded that defendant committed three separate crimes
against three separate victims. Although the crimes were close
in time, the trial judge rejected the suggestion defendant's
conduct constituted a single period of aberrant behavior. He
found the crimes involved separate acts or threats of violence and
the victims were "separately targeted," two beaten and one shot,
suggesting distinct objectives. The judge recited the specific
circumstances affecting each victim and stated: "There couldn't
be a better example of any one incident being very separate and
distinct acts of violence."
12 A-5132-14T4
Not all six Yarbough factors must be present. In fact, "a
sentencing court may impose consecutive sentences even though a
majority of the Yarbough factors support concurrent sentences."
State v. Carey, 168 N.J. 413, 427-28 (2001). Apt to this matter,
our Supreme Court has held "crimes involving multiple victims
represent an especially suitable circumstance for the imposition
of consecutive sentences because the 'total impact of singular
offenses against different victims will generally exceed the total
impact on a single individual who is victimized multiple times.'"
State v. Molina, 168 N.J. 436, 442 (2001) Ibid. (quoting State v.
Carey, 168 N.J. 413, 775 A.2d 495 (2001) (quoting People v. Leung,
5 Cal. App. 4th 482, 7 Cal. Rptr. 2d 290, 303-04 (1992)).
Accordingly, "the multiple-victims factor is entitled to great
weight." Ibid.
Our review reveals the judge's findings are based on the
credible evidence in the record and he properly considered and
weighed the applicable factors when considering the appropriate-
ness of imposing consecutive or concurrent sentences. We conclude
the judge did not abuse his discretion by imposing consecutive
sentences. See Yarbough, supra, 100 N.J. at 630 (stating
"sentencing courts should be guided by the Code's paramount
sentencing goals that punishment fit the crime, not the criminal
. . . ").
13 A-5132-14T4
Affirmed.
14 A-5132-14T4
STATE OF NEW JERSEY VS. LARRY AUSTIN (11-03-0410, HUDSON COUNTY AND STATEWIDE)
Combined Opinion