NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5249-13T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAYVON LAWS, a/k/a
KAYVON LAWS,
Defendant-Appellant.
______________________________
Submitted May 11, 2016 – Decided June 8, 2017
Before Judges Kennedy and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment
Nos. 13-01-0182 and 13-04-0640.
Joseph E. Krakora, Public Defender, attorney
for appellant (Brian Plunkett, Assistant
Deputy Public Defender, of counsel and on
the brief).
Robert Lougy, Acting Attorney General,
attorney for respondent (Frank Muroski,
Deputy Attorney General, of counsel and on
the brief).
PER CURIAM
Following the denial of his motion to suppress evidence,
defendant pled guilty to second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b), and third-degree aggravated
assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a), and was
thereafter sentenced to five years' incarceration, subject to a
three-year period of parole ineligibility, in accordance with a
plea bargain. He now appeals the denial of his motion to
suppress and argues as follows:
POINT I – IN A CASE WHERE DEFENDANT CLAIMED
THAT THE GUN WHICH SUPPORTED HIS STOP WAS
NOT IN PLAIN VIEW, THE COURT'S RULING TO
QUASH DEFENDANT'S SUBPOENA AND PREVENT A
REPORTER FROM THE ASBURY PARK PRESS FROM
TESTIFYING ABOUT HER PUBLISHED ARTICLE
CONTAINING CONFLICTING INFORMATION VIOLATED
THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES
AGAINST HIM BY [RESTRICTING] HIS ABILITY TO
CONFRONT THE STATE'S VERSION OF PLAIN VIEW.
We have considered this argument in light of the record and the
law, and we affirm.
We begin with a brief recitation of the facts underlying
the appeal. On October 19, 2012, Asbury Park police officer
Raisin was on patrol in an unmarked police car with another
officer when he saw defendant walking down Sunset Avenue with
what appeared to be a gun handle protruding from his jacket
pocket. Upon pulling up next to defendant, Raisin got out of the
car and said, "I just want to make sure that's not a gun on
you." Defendant responded by lifting his shirt and denying he
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had a weapon. This action, however, caused the gun butt to
protrude "even more" from his jacket pocket, and confirmed
Raisin's earlier suspicion that defendant had a gun in his
pocket.
As Raisin reached for the gun, defendant immediately
punched the officer in the face four times. The officers
eventually subdued defendant after spraying him with a police-
issued chemical spray. The weapon was retrieved and was
discovered to be an operable handgun loaded with live .45
caliber rounds.
Defendant testified at the suppression hearing that he had
a gun in his pocket, but asserted that the weapon was in a
closed and zippered pocket other than the one identified by the
officer. Defendant also sought to subpoena an Asbury Park Press
reporter who wrote a story about the incident in which it was
reported that the officers saw the weapon in defendant's
"waistband." The story cited Asbury Park Police Captain Anthony
Salerno as the source of the information.
Although the Law Division quashed the subpoena, Captain
Salerno testified at the suppression hearing and defendant was
permitted to extensively cross-examine Raisin about the story in
the paper. Raisin said he did not speak to the reporter or to
Captain Salerno about the incident.
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Captain Salerno acknowledged he spoke to the reporter about
the incident, but confirmed he had not spoken to either of the
arresting officers prior to the publication of the article in
the Asbury Park Press.
The judge found the testimony of the officers to be
credible and denied suppression. Defendant now appeals and
argues that the quashing of the subpoena denied his
constitutional right of confrontation and compulsory process.
Initially, we address defendant's argument that Judge
Ronald Lee Reisner erred in granting the Asbury Park Press'
motion to quash defendant's pre-trial subpoena seeking the
testimony of a reporter. A judge's decision to quash a subpoena
is reviewed for abuse of discretion. State v. Medina, 201 N.J.
Super. 565, 580-81 (App. Div.), certif. denied, 102 N.J. 298
(1985).
Substantively, the Asbury Park Press argued that they were
entitled to the protections afforded newspersons, pursuant to
the New Jersey Shield Law, N.J.S.A. 2A:84A-21, and N.J.R.E. 508
(codifying the Shield Law into Rules of Evidence). However, the
motion judge did not grant the newspaper's motion on the basis
of this privilege, but rather based upon procedural defect.
Following a hearing, the judge found that Rule 1:9-1, which
incorporates Rule 4:4-4, requires service of a subpoena upon a
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non-party by personal service. See N.J. Cure v. Estate of
Hamilton, 407 N.J. Super. 247, 250-51 (App. Div. 2009) (holding
that mailed service to an unwilling non-party subject to
personal service renders the subpoena ineffective). As defendant
left the subpoena for the reporter with the security guard at
the door of the Asbury Park Press office, this did not
constitute effective service. We find no abuse of discretion.
The motion judge properly deemed this error fatal to defendant's
application, and rightly quashed the subpoena.
The defendant, thereafter, did not re-serve the subpoena,
and thus, he has no standing to challenge the quashing of the
subpoena on substantive grounds.
Next, we turn to Judge Joseph W. Oxley's denial of
defendant's suppression motion. In reviewing a motion to
suppress, we "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) (quoting State v. Elders, 386
N.J. Super. 208, 228 (App. Div. 2006), aff'd in part and rev'd
in part, 192 N.J. 224 (2007)). Deference is especially
appropriate when the trial court has the "opportunity to hear
and see the witnesses and to have the 'feel' of the case, which
a reviewing court cannot enjoy." Id. at 244 (quoting State v.
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Johnson, 42 N.J. 146, 161 (1964)). Nevertheless, we are not
required to accept findings that are "clearly mistaken" based on
our independent review of the record. Ibid. Moreover, we need
not defer "to a trial . . . court's interpretation of the law,"
as "[l]egal issues are reviewed de novo." State v. Vargas, 213
N.J. 301, 327 (2013).
The plain view doctrine is a recognized exception to the
Fourth Amendment's requirement for police to obtain a warrant
prior to conducting a search. Texas v. Brown, 460 U.S. 730, 735,
103 S. Ct. 1535, 1539, 75 L. Ed. 2d 502, 509 (1983); State v.
Bruzzese, 94 N.J. 210, 236 (1983). There are three requirements
for the plain view doctrine1:
First, the police officer must be lawfully
in the viewing area.
Second the officer has to discover the
evidence "inadvertently," meaning that he
did not know in advance where evidence was
located nor intend beforehand to seize it.
Third, it has to be "immediately apparent"
to the police that the items in plain view
were evidence of a crime, contraband, or
otherwise subject to seizure.
1
The New Jersey Supreme Court has recently revisited the plain
view exception in State v. Gonzales, 227 N.J. 77, 82 (2016),
where it dispensed of the inadvertence requirement for a plain-
view seizure. Finding this to be a new rule of law, the Court's
holding is applied prospectively and does not control our
analysis. Ibid.
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[Bruzzese, supra, 94 N.J. at 236 (quoting
Coolidge v. New Hampshire, 403 U.S. 443,
465-70, 91 S. Ct. 2022, 2037-40, 29 L. Ed.
2d 564, 582-85 (1971)).]
Applying these principles, we discern no basis for
disturbing the motion judge's determination that the officers
observed defendant's gun in plain view, thereby satisfying the
exception to the warrant requirement. Here, finding the
testimony of the officers to be clear and unequivocal, the
motion judge determined that all three of the requirements of
the plain view doctrine had been satisfied. The officers were
lawfully patrolling the 700 block of Sunset Avenue in Asbury
Park, a location where two individuals had been shot multiple
times the day prior, when they witnessed defendant walking. The
officers observed the handle of a handgun protruding from
defendant's jacket pocket, and based upon their prior
interactions with defendant, the officers knew that it was
highly unlikely for that he had a permit to carry such a weapon.
All of these findings are supported by substantial credible
evidence in the record and therefore we discern no basis to set
aside the judge's order denying the motion to suppress.
Affirmed.
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