                                NOT FOR PUBLICATION WITHOUT THE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-4612-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TYSHAUN L. DAWSON, a/k/a
TYSHUN L. DAWSON,

     Defendant-Appellant.
____________________________

                    Submitted November 14, 2018 – Decided December 19, 2018

                    Before Judges Hoffman and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment Nos. 15-08-
                    1439 and 15-12-2204.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Marcia H. Blum, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Monica do
                    Outeiro, Assistant Prosecutor, of counsel and on the
                    brief).
PER CURIAM

      After denial of his motion to suppress, defendant Tyshaun L. Dawson

entered a guilty plea to two of the offenses charged in a multi-count indictment:

third-degree possession of a Controlled Dangerous Substance (CDS) with intent

to distribute, N.J.S.A. 2C:35-5(b)(3); and second-degree possession of a firearm

in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(a). Prior to

sentencing, defendant filed a motion to reopen the suppression hearing on the

grounds of new evidence in the form of a notarized statement prepared by Andre

Delaney. The motion to reopen was denied. On March 13, 2017, pursuant to

the plea agreement, defendant was sentenced to an aggregate fourteen years of

imprisonment, subject to forty-eight months of parole ineligibility, that also

encompassed an additional three indictments defendant previously pled guilty

to, plus fines and penalties. 1 Defendant appeals from the September 20, 2016

order denying his motion to suppress evidence. For the reasons that follow, we

affirm.




1
   The record reflects that by consent of the parties, defendant's Judgment of
Conviction was amended to correct his custodial term to fourteen years instead
of fifteen years.
                                                                         A-4612-16T2
                                       2
                                       I.

      We recite the facts presented during the suppression hearing. Testimony

was provided by one of the arresting officers, Fil James Lao. At approximately

5:40 p.m. on April 8, 2015, plain clothes Officers Lao and Thomas Gogan were

patrolling Third Avenue in Asbury Park and observed a white van pull into the

parking lot of defendant's apartment building. According to Lao's testimony,

this apartment building was known to have "numerous activities pertaining to

trespassing, [and] drug distribution." After the officers observed the van's

passenger enter the apartment building and return a few minutes later, and, in

light of "information" that this was a "heavy, heavy narcotics area," he decided

to conduct surveillance. Based upon his training and experience, Lao testified

that he believed the van's passenger "just purchased CDS from that building."

The officers approached the van. Lao observed Delaney, the van's passenger –

and someone familiar to Lao – break off a piece of crack cocaine and pass it to

the driver, Sixto Soto.     In "plain view[,]" Lao also saw Delaney holding

marijuana and heroin. After opening the van's passenger door, Delaney handed

the crack cocaine to Lao.




                                                                        A-4612-16T2
                                       3
       While awaiting police back up, Delaney whispered to Lao that he

purchased the drugs from defendant in apartment B-7, and Lao told Delaney

"not to say anything, until [he] read him his Miranda."2

       After confirming with his supervisor and colleagues, Lao testified that

further investigation was deemed warranted and Lao, Gogan, and two other

officers knocked on defendant's apartment door.       After readily responding,

defendant was advised by Lao that the officers had information that narcotics

activities were taking place in defendant's apartment. Although Lao testified

that defendant appeared "surprised" and denied having "any drugs," he "invited"

them into his apartment. According to Lao's testimony, defendant consented to

a search of his apartment verbally, and in writing, by signing a "Consent to

Search" form. Lao "reiterated" to defendant that he could "stop the search at

any time."    After defendant "escorted" the officers to a bedroom, a semi-

automatic handgun, ammunition, magazines, marijuana, drug paraphernalia, and

approximately $2000 in cash were found. These items became the subject of

the motion to suppress.

       Defendant disputed Lao's testimony, claiming he did not consent to the

search, and told them to leave. In response to requestioning, defendant testified


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-4612-16T2
                                       4
that the officers informed him that if he did not consent to a search, they could

obtain a search warrant. He also explained that he signed the form after the

officers threatened to arrest his live-in girlfriend. Notably, defendant had an

outstanding warrant for his arrest at the time.

      The judge found that Delaney's statement to police, about buying drugs

from defendant in apartment B-7, was voluntarily made. In rejecting defendant's

claims, the judge also found that defendant "invited the officers into his home ,

and thereafter made a voluntary decision to provide [them] with a completed

Consent to Search form." Defendant then filed a motion for reconsideration on

the grounds of newly discovered evidence after obtaining an affidavit from

Delaney, who did not testify at the suppression hearing. Delaney's affidavit

stated that he did not buy drugs from defendant; he denied telling Lao that he

did; and he never disclosed the source of the drugs in his possession.

      Delaney's whereabouts were not made known by the State, according to

defendant, and therefore, Delaney could not be called to testify. In point of fact,

Delaney was incarcerated in the same county jail as defendant at the time the

suppression hearing was held. The record reflects that Delaney's arrest report

was in defendant's possession at the time of the hearing confirming this.

Because the judge found no "precedent for the reopening of a suppression


                                                                           A-4612-16T2
                                        5
hearing," an "appeal" was the "only viable avenue to seek the relief that is

sought," . . . . "[U]nder the[se] circumstances[,]" he denied the motion.

                                        II.

      On appeal, defendant presents the following arguments for our

consideration:

            THE TRIAL COURT'S REFUSAL TO RECONSIDER
            ITS SUPPRESSION RULING IN LIGHT OF THE
            NEWLY DISCOVERED EVIDENCE WAS BASED
            ON ERRORS OF LAW AND FACT AND VIOLATED
            DEFENDANT'S CONSTITUTIONAL PROTECTION
            AGAINST UNREASONABLE SEARCH AND
            SEIZURE AND RIGHTS TO DUE PROCESS AND A
            FAIR TRIAL.

            The Court Was Mistaken on the Law.

            The Court Was Mistaken on the Facts.

      In reviewing a denial of a motion to suppress on appeal, we "must uphold

the factual findings underlying the trial court's decision so long as" there is

sufficient and credible record support. State v. Elders, 192 N.J. 224, 243 (2007).

"[A]n appellate court should not disturb the trial court's findings merely because

'it might have reached a different conclusion were it the trial tribunal.'" State v.

Thompson, 244 N.J. 324, 345 (2016) (quoting Elders, 192 N.J. at 244). The trial

court's legal conclusions, however, are not entitled to the same deference –



                                                                            A-4612-16T2
                                         6
"appellate review of legal determinations is plenary." State v. Handy, 206 N.J.

39, 45 (2011).

      Under both the federal and state constitutions, a warrantless search is

presumptively invalid unless it "falls within one of the few well-delineated

exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19 (2004)

(quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

      A reviewing court must determine whether the State has met its burden,

by a preponderance of the evidence, to establish the warrantless search or seizure

was justified in light of the totality of the circumstances. See Illinois v. Gates,

462 U.S. 213, 238 (1983).

      The judge rendered an oral decision immediately following argument by

counsel on the motion for reconsideration, and mistakenly referred to defendant

as "Delaney" instead of "Dawson." Closing arguments were also heard by the

judge that clarified the mistaken reference to Delaney. Counsel did not object

or attempt to correct the record. Clearly, the judge simply misspoke. The record

reflects that the judge "reviewed the letter memorandum submitted by [defense

counsel] in support of her application to reopen the suppression hearing." After

considering the totality of the facts, and in denying the motion to reopen the

suppression hearing, the judge emphasized that defendant's credibility was not


                                                                           A-4612-16T2
                                        7
the sole basis of the court's decision. Thus, we find no merit to defendant's

argument as to the judge's incorrect reference to defendant because no confusion

as to defendant's true identity has been proven, no mistakes of fact have been

shown, and there is no reversible error.

      Equally unavailing is defendant's contention that the judge erred as a

matter of law because the judge failed to appreciate his authority to reopen the

suppression hearing. Defendant failed to present a compelling reason for the

court to do so because defendant was aware of Delaney's involvement in the

events leading to his own arrest, and both of them were incarcerated in the same

county jail. Thus, defendant's contention that he was somehow prejudiced lacks

any merit. Nothing has been provided by defendant to disturb the credibility

assessments and findings of the judge at the suppression hearing, or his

determination that Lao was more credible than defendant.

      After examining the record and briefs, we conclude that defendant's

remaining arguments lack merit and do not warrant discussion in a written

opinion. R. 2:11-3(e)(2).

      Affirmed.




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                                       8
