NOT FOR PUBLICATION WITHOUT THE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-5304-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALAN A. BIENKOWSKI,
Defendant-Appellant.
Submitted October 17, 2018 – Decided January 25, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 13-09-2265.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stefan Van Jura, Deputy Public Defender, of
counsel and on the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Roberta DiBiase,
Supervising Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Alan Bienkowski was convicted of first-degree murder,
N.J.S.A. 2C:11-3(a) (count one); first-degree felony murder, N.J.S.A. 2C:11-
3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three);
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count
four); third-degree theft, N.J.S.A. 2C:20-3 (count five); and second-degree
armed burglary, N.J.S.A. 2C:18-2A(1) (count six). 1 The judge merged the
counts charging murder and felony murder, and sentenced defendant to thirty-
five years imprisonment subject to thirty years without parole pursuant to the
No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). The judge also imposed the
following terms, concurrent to the murder conviction and each other: eighteen
years subject to NERA on the first-degree robbery; eight years with three years
of parole ineligibility on the unlawful possession of a weapon; four years on the
theft by unlawful taking; and seven years subject to NERA on the armed
burglary. We affirm.
The facts are drawn from the record of pretrial motions and the trial
proceedings. Acquaintances discovered the body of seventy-six-year-old
Anthony Verdicchio on May 13, 2013, at his trailer home in a mobile park. He
1
Count seven charged defendant with fourth-degree criminal trespass, N.J.S.A.
2C:18-3(a), a lesser included to the burglary. It was merged at sentencing with
the burglary.
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2
lay on the floor of a spare bedroom filled with memorabilia and other objects
related to his flea market activities. Verdicchio was partially covered by a
comforter, and a blood-filled piece of black plastic covered the top of his head.
A piece of paper under his right arm had a faint footprint that the State matched
to defendant's right sneaker in size, design, and tread pattern. The victim died
from numerous blows to the head; the autopsy results indicated the wounds may
have been inflicted by a hammer.
Defendant, who also lived in the mobile park, owed the victim money.
Police located a witness who saw a man wearing a black baseball cap standing
on the victim's front porch on May 11, while at the time, a black pickup truck
with a New York Yankees sticker on the back window was parked out front.
Defendant drove a black pickup truck with a Yankees sticker on the rear
window.
Police interviewed defendant on May 15. He then denied having seen
Verdicchio for days prior to his death. He insisted that on Sunday, May 12, he
had been at home the entire day except for a morning trip to a dog park.
Defendant later told police that he met a friend that day and had gone to
his sister's home. His statement to police changed when confronted with the
information that his truck was seen in front of the victim's trailer. He then
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3
admitted he had stopped by to assure the victim that the outstanding loan would
be repaid but remained on the porch and denied that his DNA would be found
inside the home. He consented to a search of his own trailer.
During the search, police seized a pair of blood-stained sneakers. When
asked about the blood stains, defendant claimed they came from his old job
working in a butcher shop. The blood on the shoes proved to be Verdicchio's
and was admitted into evidence at trial.
When police asked defendant about collectible coins found in his home,
he insisted he had obtained them from his mother, and not from the victim, who
collected coins. After the second post-search interview ended, and the tape
machine turned off, defendant said that he had driven to Newark on Sunday,
May 13, to buy heroin because he was a drug addict.
Approximately a week later, defendant's sister Susan Kosker spoke to
detectives and told them she had called defendant the morning of May 12. She
and defendant planned to visit their mother's grave because it was Mother's Day,
however, he never followed up on the conversation.
In mid-June, police interviewed Kosker regarding a drug offense, and she
volunteered that her brother had written to her asking that she empty the contents
of his storage unit, particularly two guns, because otherwise he would "be
A-5304-15T2
4
screwed." Defendant had rented the unit on Monday, May 13, the day the
victim's body was discovered.
Kosker consented to a search of her home. She turned over to police three
plastic bins and a shoe box she had taken from the unit. The bins, which police
knew came from the unit and belonged to defendant, contained coins, sports
memorabilia, other collectibles, and one handgun.2 The firearm belonged to the
victim, and two of the other items in the bins tested positive for his blood.
Defendant testified at trial. He told the jury that he was a drug addict
during the period of time in question. On May 13, the day Verdicchio's body
was discovered, he noticed a black garbage bag on the ground near the back of
the victim's van as he drove past, and that Verdicchio's front door was ajar.
Defendant pulled over and walked around outside the trailer calling the victim's
name. He looked into the garbage bag, and into a second bag on the steps, and
saw several flea market-type items. When defendant entered the house, he found
the victim's body.
Defendant said that although he knew he should have called for assistance,
he instead lifted the plastic bag covering Verdicchio's face, saw he was dead,
and placed a comforter over his body. He did not realize the victim's blood
2
The parties stipulated that only one handgun was found.
A-5304-15T2
5
stained his sneakers. To avoid being charged with murder, he told no one about
the body, and decided to sell the items in the bags for cash to support his habit.
Defendant placed the stolen items in plastic containers, and placed them in a
rented storage unit. He went to Newark that day to buy drugs.
Defendant explained that he lied to police during the interview because he
did not want to be blamed for the killing, but insisted he was not lying on the
stand because he was no longer a drug addict. He added that he had asked his
sister to remove the bins from the storage unit because he was afraid, but denied
telling her that she would have to get rid of the handgun, or that he would "be
screwed."
Kosker's testimony also contradicted her earlier statements to police; she
said they were lies either she or the police manufactured. She did not remember
some of her statements at all because she claimed she was ill and under the
influence at the time she made them. Kosker insisted she merely told police
what she thought they wanted to hear in order to be released from the station.
Defendant's other sister testified that in June 2013, when she and defendant
spoke on the phone, he told her his car had been at the victim's house on May
12 because he visited him in order to repay the loan.
A-5304-15T2
6
The State's expert witness on blood patterns testified that the blood stains
on defendant's sneakers were made by droplets, not by splashing as defendant
claimed happened when he walked through the house. The expert opined that if
defendant had stepped in Verdicchio's blood he would have left "contact transfer
impressions" from the shoe to the floor as he walked, yet the only bloody imprint
police found was the faint footprint on the piece of paper under the victim's
forearm, which matched defendant's right sneaker.
Defendant's blood pattern expert witness testified that the stains on the
outside of defendant's right sneaker were wipe pattern marks caused by contact
with a bloody object, not spatter. He further testified that the blood stains on
the inside of the left sneaker, unlike the wipe pattern on defendant's right
sneaker, were the stains to be expected when someone steps in a puddle of blood.
He noted the absence of blood on the tops of defendant's shoes, and said that the
placement of the stains was more consistent with contact with blood after an
attack.
Defendant introduced a number of witnesses to support his theories of
third-party guilt. This included the claim that the person who notified police
upon discovering the body should actually have been a suspect, as that
individual's wife had allegedly been unfaithful to him with Verdicchio.
A-5304-15T2
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Defendant also presented testimony suggesting that the victim had
homosexual affairs. After death, the victim's body was examined by a sexual
assault nurse who performed a rape kit, although it was never sent to a laboratory
for testing. Defense counsel argued the examination supported the theory that
the killing may have been the product of a homosexual confrontation.
Prior to trial, the court denied defendant's motion to suppress the contents
of the bins and the shoebox. Although Kosker testified at the hearing that she
knowingly and voluntarily signed the consent to search, she insisted that she was
confused, felt ill, and would not have agreed had she known that she had the
right to refuse. Kosker admitted, when shown the consent to search form a
second time, that she had understood she had the right to refuse.
The judge who presided over the motion concluded that Kosker's verbal
agreement and signature on the waiver were dispositive. In addition to Kosker's
testimony during the hearing, he watched the videotape of the consent, given at
the station. The judge also concluded that nothing the officers said or did could
be characterized as coercive, threatening, "or even misleading[.]" The judge did
not find Kosker's testimony to be credible, and described her as having been
"evasive and contradictory[.]" He further found that she had standing to consent
to the search of the bins and the shoebox because the items were located in her
A-5304-15T2
8
residence, she had actual control over them, and she had the appearance of
control over the items.
During the trial, the court conducted a Sands3 hearing to decide the
admissibility of defendant's prior convictions, should he choose to testify. The
State sought to introduce defendant's first-degree armed robbery and drug
possession conviction from 1993, which resulted in a fifteen-year sentence, a
2000 third-degree theft conviction, which resulted in a four-year term of
probation, and a fourth-degree 2011 criminal trespass charge downgraded to a
disorderly persons conviction. The judge decided that the 1993 and the 2000
convictions could be admitted as defendant's prior criminal history was woven
together by proximity in time to the 2011 charge.
Defendant raises two issues for our consideration:
POINT I
THE POLICE DID NOT HAVE CONSENT, NOR
COULD THEY REASONABLY HAVE BELIEVED
THAT THEY HAD CONSENT, TO SEARCH THE
STORAGE BINS BASED ON KOSKER'S
RELINQUISHMENT OF THE BINS WHEN THE
BINS WERE KNOWN TO BELONG TO
DEFENDANT. THE CONTENTS OF THE BINS
SHOULD BE SUPPRESSED AND THE
CONVICTIONS REVERSED.
3
State v. Sands, 76 N.J. 127, 144 (1978).
A-5304-15T2
9
POINT II
THE COURT ERRED IN ALLOWING THE STATE
TO INTRODUCE TWENTY-THREE[] AND
SIXTEEN-YEAR-OLD CONVICTIONS TO AFFECT
DEFENDANT'S CREDIBILITY.
I.
"[A]n appellate 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) (citation omitted); State v. Gamble, 218 N.J. 412, 424
(2014). Additionally, we "defer[] to those findings of the trial judge which are
substantially influenced by [the] opportunity to hear and see the witnesses and
to have the 'feel' of the case . . . ." State v. Johnson, 42 N.J. 146, 161 (1964).
Due to the trial court's unique perspective, its findings should only be disturbed
if they are, "'clearly mistaken' or 'so wide of the mark' that the interests of justice
requir[e] appellate intervention." Elders, 192 N.J. at 245 (citing N.J. Div. of
Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). Only then should
an appellate court "appraise the record as if it were deciding the matter at
inception and make its own findings and conclusions." Ibid. (citations omitted).
"A trial court's interpretation of the law, however, and the consequences that
A-5304-15T2
10
flow from established facts are not entitled to any special deference." Gamble,
218 N.J. at 425.
In considering whether to suppress evidence obtained from a search and
seizure, courts must balance the government's interest in investigation with an
individual's right "to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures[.]" U.S. Const. amend. IV. In order
for a government search to be constitutionally valid, it must be either pursuant
to a warrant or voluntary consent. 4 See ibid.; N.J. Const. art. I, ¶ 7. According
to the New Jersey Constitution, the validity of a consent-based search is based
on the State meeting its burden of "showing that the consent was voluntary, an
essential element of which is knowledge of the right to refuse consent." State
v. Johnson, 68 N.J. 349, 353-54 (1975).
It is also true that a third party or someone other than the owner of the
property can give consent to a search, so long as the consenting individual
"possesse[s] common authority over or other sufficient relationship to the
premises or effects sought to be inspected." United States v. Matlock, 415 U.S.
164, 171 (1974); see also State v. Coyle, 119 N.J. 194, 215 (1990). However, a
4
Other exceptions exist, but they are not relevant to this case. See State v.
Pineiro, 181 N.J. 13, 20-21 (2004).
A-5304-15T2
11
third party's authority to consent rests "on mutual use of the property by persons
generally having joint access or control" of the property, such as co-inhabitants
who may "assum[e] the risk that one of their number might permit the common
area to be searched." Matlock, 415 U.S. at 171 n.7.
Nevertheless, if a government search was conducted erroneously yet upon
reasonable belief that the third party possessed authority over the property, there
will be no constitutional violation. State v. Suazo, 133 N.J. 315, 320 (1993)
(citing Illinois v. Rodriguez, 497 U.S. 177, 186 (1990)). If circumstances
suggest that "the property to be searched belongs to someone other than the
consenting party," however, such consent becomes "questionable" and the
search may be rendered an unreasonable constitutional violation. Id. at 322.
Such circumstances exist when a third party disclaims ownership of property, or
generally "lack[s] the authority to consent to a search of specific containers
found on those premises." Id. at 320.
Defendant contends that Kosker, in line with the limits expressed in
Suazo, could not consent to the search of the contents of the plastic bins.
Further, police knew the items did not belong to her, and that she had merely
been asked to remove the materials from the storage unit and hold them. This
is unlike a situation in which the owner of a car consents to a search of bags in
A-5304-15T2
12
the trunk while the owner of the item objects, such as in Suazo. Id. at 322-23.
But police knew the items in the storage bins and the shoe box belonged to
defendant and not to Kosker. Kosker told them that defendant had requested
that she discard only the guns. Under these circumstances, the police were not
justified in eliciting her permission to search the containers. They could not
have reasonably believed she had the authority to consent to the search, nor
could they have concluded that she had the apparent authority to consent .
Acknowledging that the contents belonged to defendant and not to Kosker,
the court nonetheless relied on Kosker's appearance of authority. The judge
opined that because she had been asked to take the bins home, she even had the
actual authority to consent to the search. But that decision conflated her
authority to hold the containers with the authority to dispose of the contents ,
other than the handgun, which she did not have. Therefore, the search was
unlawful and the motion to suppress should have been granted.
We do not set aside a judge's discretionary rulings regarding the admission
of evidence lightly. We do so only when it appears there has been a clear error
of judgment, in this case, a mistaken application of the legal principles regarding
the apparent authority to consent to a search of the contents of containers. See
State v. J.A.C., 210 N.J. 281, 295 (2012). Despite this misapplication of the
A-5304-15T2
13
relevant law, we do not consider the admission of the evidence to have
prejudiced defendant's right to a fair trial in light of the State's overwhelming
proofs. See State v. Prall, 231 N.J. 567, 581 (2018).
Among other things, the State's case consisted of defendant's own
statements, the fact he was seen at the victim's home during the relevant
timeframe, defendant's blood-stained shoes, and defendant's sneaker print
outlined in blood beneath the victim's arm. Under these circumstances, the
admission of the victim's belongings from defendant's bins was not clearly
capable of producing an unjust result. See R. 2:10-2. This is one of those "rare
case[s]" in which the erroneous admission of evidence does not suffice "to raise
a reasonable doubt as to whether [it] led the jury to a result it otherwise might
not have reached." Prall, 231 N.J. at 588 (citing State v. Daniels, 182 N.J. 80,
95 (2004)). Thus, although the police should not have searched the bins and
shoebox, the admission of the contents is not a basis for reversal.
II.
According to N.J.R.E. 609(b)(1), evidence of prior convictions older than
ten years are admissible where the "probative value outweighs [the] prejudicial
effect." The probative value is determined by balancing the nature and
seriousness of the offenses with remoteness to the current matter. N.J.R.E.
A-5304-15T2
14
609(b)(2). Where intervening offenses can cure remoteness and thus bridge the
gap to older more remote crimes, then the earlier conviction will also be
admitted. Sands, 76 N.J. at 145. N.J.R.E. 609(b)(1) shifts the burden of proof
to the proponent of the evidence. It is this section of the Rule which defendant
claims was violated. Defendant argues that the calculation should be made from
his 1998 release, and that the intervening 2013 theft conviction, a petty
disorderly persons offense, cannot be counted.
Defendant was released from prison in 1998 after his 1993 conviction for
armed robbery and drug possession. Defendant was again convicted of an
indictable theft offense in 2000, resulting in a four-year probation term. The
2011 theft charge, however, ultimately resulted in the 2013 petty disorderly
persons conviction.
In State v. Harris, 209 N.J. 431 (2012), the Court upheld the admission of
two fourteen-year-old convictions where there had been seven intervening
convictions for disorderly persons and petty disorderly persons offenses. Id. at
444-45. In Harris, the seven convictions occurred almost annually until
defendant's trial. Id. at 436.
But the calculation of the ten-year period, and the applicability of the rule,
is made from the last indictable conviction and service of sentence, not the first.
A-5304-15T2
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This means that even before reaching the issue of "bridging," the calculation is
made from defendant's release from probation in 2004, less than ten years from
this crime. The only offense that "bridged" and wove together defendant's prior
criminal history was the 2011 petty disorderly persons offense, charged
originally as a criminal trespass. A judge has broad discretion in making
evidentiary rulings such as this one. Id. at 442; Sands, 76 N.J. at 144. Our
decision should not be read as meaning that in every case in which N.J.R.E.
609(b)(1) applies, one disorderly persons conviction in the course of years
suffices, because this timeframe does not implicate that section of the rule.
Defendant stopped serving his probationary term in 2004. His next offense
occurred nine years later. Thus, the criminal history does not fall within the
second section of the rule. See N.J.R.E. 609(b)(1).
Absent an abuse of discretion or clear error of judgment, neither of which
occurred here, a trial court's decision to admit prior convictions will not be
disturbed. See Harris, 209 N.J. at 439. We see no basis in the law to interfere
with the judge's decision in balancing these equitable considerations. Applying
our normal deferential standard, there was no abuse of discretion in the trial
judge's decision that defendant's prior criminal history showed an inability to
A-5304-15T2
16
comply with the bounds of behavior imposed on all citizens. See Sands, 76 N.J.
at 145.
Affirmed.
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