                                NOT FOR PUBLICATION WITHOUT THE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-0750-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RANDY P. FERNANDEZ,

     Defendant-Appellant.
_________________________

                    Argued January 25, 2019 – Decided July 15, 2019

                    Before Judges Simonelli, Whipple and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Morris County, Indictment No. 15-10-0888.

                    Alyssa A. Aiello, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Joshua D. Sanders, Assistant
                    Deputy Public Defender, of counsel and on the brief).

                    John K. McNamara, Jr., Chief Assistant Prosecutor,
                    argued the cause for respondent (Frederic M. Knapp,
                    Morris County Prosecutor, attorney; Erin Smith
                    Wisloff, Supervising Assistant Prosecutor, on the
                    brief).
PER CURIAM

      Following the denial of his motion to suppress statements made to the

police and items seized from his apartment, defendant Randy P. Fernandez pled

guilty to three counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(2). The trial

court sentenced defendant in accordance with the plea agreement to a thirteen-

year term of imprisonment with an eighty-five percent period of parole

ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

      On appeal, defendant raises the following contentions:

            POINT I

            BOTH THE EVIDENCE AND THE STATEMENTS
            OBTAINED FROM [DEFENDANT] MUST BE
            SUPPRESSED BECAUSE THEY ARE THE RESULT
            OF THE WARRANTLESS ENTRY OF HIS HOME.

            POINT II

            [DEFENDANT'S] SENTENCE IS EXCESSIVE,
            UNDULY PUNITIVE, AND MUST BE REDUCED.

We reject these contentions and affirm.

                                       I.

      At 1:58 p.m. on January 6, 2015, detectives Michael Pier and William

McCarthy of the Dover Police Department responded to a holdup alarm at a local

delicatessen. Prior to this robbery, the delicatessen had been robbed three times


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                                       2
in November 2014. During the course of investigating the prior robberies, a

confidential informant advised the police that defendant committed them. The

detectives had defendant's motor vehicle registration, which bore his address,

apartment number and photograph, and immediately went to the apartment

building. On route, the detectives received additional information that the

perpetrator was wearing all black clothing, had brandished a handgun, and had

exited the delicatessen, heading toward Beach Street, which intersects with the

street on which defendant lived.

      The detectives arrived at defendant's apartment building, which contained

approximately six apartments. They went to the front door, which was locked,

and started ringing doorbells and knocking on the door. Someone in the building

unlocked the front door. The detectives entered into the foyer where they saw

mailboxes. The mailbox for apartment number three bore defendant's last name.

      The detectives went to defendant's apartment and knocked on the door.

When defendant opened the door, the detectives saw he was sweating, out of

breath and nervous. They asked defendant if they could enter his apartment and

defendant consented. Once inside, the detectives advised defendant they had

information that he committed the robberies at the delicatessen and wanted to

search his apartment for evidence. Defendant consented to the search of his


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                                      3
apartment. Pier advised defendant he had the right to refuse to give consent and

could terminate the search at any time. Defendant again consented to the search

of his apartment.     The detectives searched the apartment, found nothing

connecting defendant to the robberies and left.

       While standing outside defendant's apartment door discussing the case,

the detectives heard rummaging noises coming from the area of the attic inside

defendant's apartment. They knocked on defendant's door and when defendant

opened it, they asked about the noise and asked if they could re-enter the

apartment to search it again. Defendant was initially hesitant and suggested the

detectives get a search warrant, to which they agreed, but then consented to the

detectives re-entering his apartment without a warrant and to conduct a second

search. The detectives again advised defendant he had the right to refuse consent

and could terminate the search at any time. Defendant did not refuse consent or

terminate the search. McCarthy then searched the attic and found a jacket, pants,

sunglasses, gloves, boots and a gun.

       The detectives arrested defendant and advised him of his Miranda1 rights.

Defendant then admitted he committed the armed robberies of the delicatessen.



1
    Miranda v. Arizona, 384 U.S. 436 (1966).


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                                       4
He was transported to police headquarters, where, prior to his videotaped

interrogation, he was again advised of his Miranda rights and signed and

initialed the Miranda form. Defendant also signed a consent to search form and

acknowledged he had authorized the search of his apartment. Defendant told

the detectives that he placed the money from that day's robbery in a shoebox

next to a stack of computer monitors and described where they would find the

money in the attic inside his apartment. Defendant confirmed that the detectives

would be able to return to his apartment to retrieve the money and that his father,

who also resided in the apartment, would allow them access to the apartment.

The detectives returned to defendant's apartment and spoke to his father, who

consented to a search of the attic and signed a consent to search form. The police

searched the attic and found $227 in a shoebox next to computer monitors .

      Defendant filed a motion to suppress the evidence seized from his

apartment, arguing he did not consent to the search of his apartment. Following

a hearing, at which Pier, McCarthy and defendant testified, the motion judge

issued a comprehensive written opinion, dated October 12, 2016. The judge

made credibility determinations and detailed factual findings, and concluded

defendant freely and voluntarily consented to the first two searches of his




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                                        5
apartment, and his father freely and voluntarily consented to the third search,

including the search of the attic.

                                       II.

      On appeal, defendant did not address the validity of the consent to search

his apartment or the judge's rulings on this issue. Thus, the issue is deemed

waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011);

Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019).

Rather, defendant argues for the first time on appeal that the detectives

unlawfully entered the foyer of his apartment building by ringing doorbells of

neighbors in order to gain entry.

      "Generally, 'the points of divergence developed in proceedings before a

trial court define the metes and bounds of appellate review.'" State v. Witt, 223

N.J. 409, 419 (2015) (quoting State v. Robinson, 200 N.J. 1, 19 (2009)). "Parties

must make known their positions at the suppression hearing so that the trial court

can rule on the issues before it." Ibid. "For sound jurisprudential reasons, with

few exceptions, 'our appellate courts will decline to consider questions or issues

not properly presented to the trial court when an opportunity for such a

presentation is available.'" Ibid. (quoting Robinson, 200 N.J. at 20).




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                                        6
      Here, the trial court was never called on to rule on the legality of the

detectives' entry into the apartment building and the State was deprived of the

opportunity to establish a more robust record that might have resolved the issue.

Under the circumstances, we should decline to entertain the newly-raised issue.

However, we discern nothing unlawful about the detectives' entry into the foyer

of defendant's apartment building.

      The detectives had information that defendant committed the armed

robberies and knew he lived in apartment three of the apartment building. They

went to the apartment building to investigate. Their entry into the foyer was

proper, as defendant had no reasonable expectation of privacy in that common

area. Case law supports this conclusion. See State v. Brown, 282 N.J. Super.

538, 547 (App. Div. 1995) (holding a tenant does not have a reasonable

expectation of privacy in the common areas of an apartment building); State v.

Ball, 219 N.J. Super. 501, 506-07 (App. Div. 1987) (holding one does not have

a reasonable expectation of privacy in areas that are also used by other

occupants); State v. Jordan, 115 N.J. Super. 73, 75 (App. Div. 1971) (noting that

one does not have a reasonable expectation of privacy in the common hallways

of apartment buildings).    In addition, the police do not need a warrant to

approach an apartment building and knock on the door, State v. Craft, 425 N.J.


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                                       7
Super. 546, 552 (App. Div. 2012), and may enter the common passageway of a

multi-family dwelling in furtherance of an investigation, State v. Smith, 37 N.J.

481, 496 (1962). The fact that the detectives gained entry to the foyer area by

ringing the doorbells of other tenants does not change the analysis, as defendant

did not have a right to exclude the police from the building's common areas and

the detectives had the right to enter the foyer in furtherance of their investigation

of the armed robberies.

      State v. Jefferson, 413 N.J. Super. 344 (App. Div. 2010), on which

defendant relies, does not change this result.           There, the police were

investigating a citizen's tip of shots fired and located the suspected car of the

alleged shooter in front of the defendant's residence, which was a multi-family

dwelling with a common hallway. Id. at 349-50. The police forcibly entered

the front door as the defendant tried to keep them out.          Id. at 350-51. A

significant distinguishing factor of Jefferson and the case here is that there was

no forced entry into the foyer area; rather, the detectives gained entry by a tenant

who had access to the apartment building, including the foyer. Accordingly, we

discern no reason to reverse.




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                                         8
                                        III.

       At sentencing, the court found aggravating factor three, "[t]he risk that the

defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3); factor six,

"[t]he extent of the defendant's prior criminal record and the seriousness of the

offenses of which he has been convicted," N.J.S.A. 2C:44-1(a)(6); and factor

nine, "[t]he need for deterring the defendant and others from violating the law,"

N.J.S.A. 2C:44-1(a)(9). The court also found mitigating factor eleven, "[t]he

imprisonment of the defendant would entail excessive hardship to himself or his

dependents," N.J.S.A. 2C:44-1(b)(11). The court provided reasons for each of

these findings and imposed three concurrent thirteen-year terms of

imprisonment subject to NERA. Defendant argues his sentence is excessive and

the court added extra time because he filed pre-trial motions and decided to go

to trial.

       We review a judge's sentencing decision under an abuse of discretion

standard. State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court,

we must determine whether:

             (1) the sentencing guidelines were violated; (2) the
             aggravating and mitigating factors found by the
             sentencing court were not based upon competent and
             credible evidence in the record; or (3) "the application
             of the guidelines to the facts of [the] case makes the


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                                         9
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [Ibid. (alteration in original) (quoting State v. Roth, 95
            N.J. 334, 364-65 (1984)).]

      We have considered defendant's argument in light of the record and

applicable legal principles and conclude it is without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the

reasons the court expressed at sentencing. We are satisfied that the court did

not violate the sentencing guidelines or add extra time because defendant filed

pre-trial motions and decided to go to trial, and the record amply supports the

judge's findings on aggravating and mitigating factors. The sentence is clearly

reasonable and does not shock our judicial conscience.

      Affirmed.




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