                                NOT FOR PUBLICATION WITHOUT THE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-2126-17T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ANDRON L. ACCOO, a/k/a
NARON MOBLEY, and
LENAIR L. ACCOO,

     Defendant-Appellant.
_________________________

                   Submitted February 13, 2019 – Decided March 6, 2019

                   Before Judges Koblitz, Currier and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment Nos. 14-08-
                   1354 and 15-04-0738.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Alicia J. Hubbard, Assistant Deputy Public
                   Defender, of counsel and on the briefs).

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

      Defendant Andron L. Accoo appeals from his two March 20, 2017

convictions for third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). He

pled guilty to both single-count indictments after the June 28, 2014 denial of his

motion to suppress the cocaine that formed the basis for Indictment No. 14 -08-

1354. The judge sentenced him concurrently to three years of probation on the

two indictments. Shortly thereafter, defendant pled guilty to a violation of

probation and his probation was extended for an additional year on July 10,

2017. He now appeals, disputing the denial of his motion to suppress and the

factual basis for the violation of probation. After reviewing the record in light

of the contentions advanced on appeal, we affirm.

                                     Search

      The testimony at the suppression hearing revealed the following. Having

received information from a confidential informant that defendant was selling

drugs, and knowing that defendant had an active child support arrest warrant

against him, two police officers stopped a Jeep Cherokee driven by a woman

with defendant in the back seat. As one officer approached the Jeep, he smelled

burnt marijuana and saw a burnt marijuana cigarette in the rear passenger door




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                                        2
handle. The officer asked defendant to exit the car, and noticed "an off-white

rock-like substance" on defendant's seat.

      The officers spoke to the driver, who told them that defendant and his son

were "temporarily staying" with her. She pulled a bag of cocaine from her

pocket and told the police defendant had asked her to hide it. While standing in

front of the jeep, the driver consented in writing to the search of her car and

house. Defendant, who was under arrest and secured at the rear of the Jeep, was

within "earshot" of the driver's discussion with the police. The police found a

plastic bag containing marijuana, cocaine, heroin, scales and bags on a table in

the living room of the driver's home. In his factual basis for the plea, defendant

admitted only to the cocaine found on his car seat.

       Defendant raises the following search issue on appeal:

            POINT I: THE WARRANTLESS ENTRY AND
            SEARCH WERE NOT JUSTIFIABLE UNDER A
            THEORY OF THIRD-PARTY CONSENT, AND
            VIOLATED MR. ACCOO'S RIGHTS UNDER U.S.
            CONST. AMENDS. IV, XIV; N.J. CONST. ART. 1,
            PAR. 7.

      Defendant does not dispute the validity of the car search, which revealed

the cocaine defendant admitted possessing. He argues that he would not have

pled guilty to the cocaine found in the car had the cocaine in the home not been

found. The State does not contend that under these circumstances defendant

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                                        3
should be precluded from arguing the merits of the home search, and we

therefore consider defendant's argument.

      In State v. Lamb, our Supreme Court set forth general principles that apply

to home searches.

            "[O]ur jurisprudence expresses a clear preference for
            police officers to secure a warrant before entering and
            searching a home." State v. Brown, 216 N.J. 508, 527,
            (2014).     Warrantless searches are presumptively
            invalid. When a defendant challenges a warrantless
            search of a home, the State bears the burden of proving
            by a preponderance of the evidence that the search falls
            within one of the recognized exceptions to the warrant
            requirement.

            [State v. Lamb, 218 N.J. 300, 314-15 (2014) (citations
            omitted).]

      Defendant argues that the homeowner's consent was insufficient to allow

a search of the home where he was living. He relies on Georgia v. Randolph,

547 U.S. 103 (2006), Fernandez v. California, 571 U.S. 292 (2014) and Lamb.

Randolph determined that a search where one tenant consented and the other

tenant did not, where both tenants were present and were asked for consent, was

not valid as against the non-consenting tenant.       547 U.S. at 114-15.       In

Fernandez, the United States Supreme Court determined that a co-tenant absent

due to arrest lost his right to object to the search. 571 U.S. at 303. In Lamb,

our Supreme Court discussed Fernandez:

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                                       4
            Recently, the Supreme Court underscored the limited
            scope of Randolph in Fernandez . . . by refusing to
            extend its ruling in Randolph to a situation in which a
            co-occupant consented to a search of the home she
            shared with the defendant after his arrest and removal
            from the scene. In Fernandez, the defendant was
            charged with various offenses, including robbery, and
            moved to suppress the evidence seized from the search
            based on his prior refusal to consent to a search of the
            apartment. In affirming the denial of his motion to
            suppress, the Court reiterated that the consent of one
            resident of jointly occupied premises is generally
            sufficient to justify a warrantless search. The Court
            characterized the rule in Randolph as "a narrow
            exception," and emphasized that the rule is premised on
            the physical presence of the objecting occupant.
            [Randolph, 571 U.S. at 294].

            [Lamb, 218 N.J. at 317 (citations omitted).]

      Here, defendant either heard the police request consent to the search from

the back of the car and chose not to speak up, or he was effectively absent from

the discussion due to his arrest. Randolph noted that a tenant "nearby, but not

invited to take part in the threshold colloquy, loses out." 547 U.S. at 121. The

police are not required to obtain the consent of all available tenants. We thus

affirm the denial of defendant's motion to suppress the home search.

                            Violation of Probation

      When defendant was sentenced on March 3, 2017, he stated he had

recently smoked marijuana and would probably test positive. The judge warned


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                                       5
him a future failure to report or positive drug test would result in a violation of

probation.   The following month, defendant was arrested for terroristic threats,

N.J.S.A. 2C:12-3(b). On April 20, 2017, he was charged with a violation of

probation based on that arrest, his testing positive for THC four days after

sentencing, failing "to provide verification of [AA/NA] meetings, sponsor, home

group and commitment," and failing to make any payment toward his "financial

obligation" imposed at sentencing. By the time of the violation of probation

hearing, the terroristic threat charge had been dismissed.

      Defendant maintained in his factual basis that he had not ingested

marijuana during the three days between sentencing and testing, and that

although he failed to provide verification, he had obtained the r equired

treatment. He admitted he did not pay towards his fines and fees until after the

violation of probation was filed.

      Defendant raises the following issue in connection with the violation of

probation:

             POINT II: THE COURT FAILED TO [ELICIT] AN
             ADEQUATE FACTUAL BASIS TO ESTABLISH A
             VIOLATION OF VARIOUS GROUNDS ALLEGED
             IN THE VIOLATION OF PROBATION U.S. CONST.
             AMENDS. V, XIV; N.J. CONST. ART. 1, ¶ 7.

             A. A MERE ARREST DOES NOT CONSTITUTE A
             VIOLATION OF PROBATION.

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                                        6
            B. A PROHIBITION AGAINST TESTING POSITIVE
            FOR USE OF DRUGS, REGARDLESS OF WHEN
            THE DRUGS WERE INGESTED, NOT ONLY FAILS
            TO PROVE A VIOLATION OF THE TERMS OF
            PROBATION, BUT IS NOT SANCTIONED BY
            [N.J.S.A.] 2C:45-1.

            C. THERE WAS NO FINDING THAT THE FAILURE
            TO PAY FINES WAS WILLFUL.

      Defendant argues that he did not lay a sufficient factual basis at his guilty

plea to a violation of probation. See R. 3:9-2; State v. Lavoy, 259 N.J. Super.

594, 602 (App. Div. 1992) ("There is the same need in the case of a plea to a

violation of probation as with any other guilty plea to obtain a factual basis for

the plea . . . ."). Although defendant minimized his culpability, he acknowledged

not providing verification of his treatment and not paying the financial penalties

before being charged with a violation of probation.        He said he was self-

employed and had made a payment towards his financial obligations after he

was charged. Defendant did not contend he was unable to pay the court-ordered

penalties, and actually offered evidence in support of this ability to pay. Nor

did defendant offer any excuse for not reporting his ongoing compliance with

treatment to the probation department. After a de novo review of defendant's

factual basis, as required by State v. Urbina, 221 N.J. 509, 527-28 (2015), we

affirm defendant's guilty plea to a violation of probation based on his admitted


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                                        7
willful failure to make a payment towards his fines and failure to inform the

probation department of his treatment compliance.

     Affirmed.




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