                                NOT FOR PUBLICATION WITHOUT THE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-5192-16T4


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LOUIS M. COSCIA,

     Defendant-Appellant.
______________________________

                    Submitted September 25, 2018 – Decided October 24, 2018

                    Before Judges Yannotti, Rothstadt and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 14-07-
                    1315.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Laura B. Lasota, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Ian D. Brater,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      After the trial court denied defendant's motion to suppress, he pled guilty

to first-degree robbery, contrary to N.J.S.A. 2C:15-1. The trial court sentenced

defendant to a seven-year prison term, and required that he serve eighty-five

percent of that sentence, pursuant to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2. Defendant appeals from the judgment of conviction dated April 20,

2017. We affirm.

                                       I.

      In July 2014, a Monmouth County grand jury returned an indictment

charging defendant with first-degree armed robbery of I.A., N.J.S.A. 2C:15-1

(count one); and fourth-degree unlawful possession of an imitation firearm,

N.J.S.A. 2C:39-4(e) (count two). 1 Defendant also was charged in Complaint

No. W2014-158-1335 with the disorderly persons offense of defiant trespass,

N.J.S.A. 2C:18-3(b).

      Thereafter, defendant filed motions to suppress the victim's identification

of him, and physical evidence the police had seized in a search. On July 8, 2015,

the motion judge conducted an evidentiary hearing on the motions. On July 14,

2015, the judge placed an oral decision on the record and denied the motions.


1
   We use initials to identify the victim and others in order to protect their
privacy.
                                                                         A-5192-16T4
                                       2
      On January 9, 2017, defendant pled guilty to first-degree armed robbery,

as charged in count one of the indictment. In exchange, the State agreed to the

dismissal of count two of the indictment and the defiant trespasser charge . The

State also agreed to recommend that the armed robbery be considered a second-

degree offense for sentencing, and that the court impose a seven-year custodial

sentence subject to NERA, to be served concurrently with a sentence that

defendant was then serving, with appropriate monetary penalties and

assessments.    On April 7, 2017, another judge sentenced defendant in

accordance with the plea agreement. This appeal followed.

      On appeal, defendant does not challenge the denial of his motion to

suppress the identification evidence.       However, he raises the following

argument:

            THE TRIAL COURT ERRED IN DENYING
            DEFENDANT'S MOTION TO SUPPRESS AN
            IMITATION HANDGUN FOUND DURING A
            SEARCH OF [A RESIDENCE ON] BENNETT
            AVENUE AFTER POLICE HAD ILLEGALLY
            ENTERED THE RESIDENCE.

                                      II.

      We briefly summarize the evidence presented at the hearing on

defendant's motion to suppress. Around 1:30 a.m. on March 22, 2014, I.A., a

taxi driver for Citi Cab, was dispatched to a pizzeria in Neptune to pick up a

                                                                        A-5192-16T4
                                       3
fare. When I.A. arrived at the pizzeria, he observed a group of people standing

outside and defendant standing alone. I.A. began driving towards the group,

thinking they called for the ride, but defendant yelled out to him and approached

the driver-side window of the taxi. After defendant confirmed he called for a

cab, he entered the vehicle and sat directly behind I.A.

         I.A. began driving and asked defendant where he was going. Defendant

said he was not sure, but thought he was going to Emerson Place. I.A. began

driving to that location, but when they got closer defendant directed him to

another street. Defendant then abruptly asked I.A. to stop the taxi. When I.A.

stopped, defendant put a gun to his neck and demanded his money, car keys, and

phone.

      I.A. pleaded with defendant not to take his car keys and leave him

stranded. Defendant responded, "I'm not going to leave you stranded[,]" and he

exited the taxi, started walking, and threw the keys in the street. I.A. began

looking for the keys when he noticed defendant walk back toward the cab and

look inside.    Defendant took a backpack out of the cab and I.A. realized

defendant's gun was not showing. I.A. grabbed defendant's backpack, and a

brief struggle ensued. Defendant threw money in the air, gained possession of

the backpack, and fled. I.A. called the police.


                                                                         A-5192-16T4
                                        4
      Detective Sergeant Keith Mitchell of the Neptune City Police Department

(NCPD) was assigned to investigate the incident. Mitchell took I.A.'s statement

and reviewed video surveillance footage obtained from the pizzeria. Several

days later, J.M. contacted the police and indicated he had information regarding

the robbery. J.M. told Mitchell he lived with defendant in a residence on Bennett

Avenue in Neptune City and identified defendant as the perpetrator of the

robbery. J.M. said that on the night of the robbery, defendant expressed interest

in committing a robbery, left the residence, and returned out of breath stating he

robbed a cab driver and "got $60 out of him."

      J.M. told Mitchell defendant wanted to rob another cab driver and

possessed "an Airsoft gun that shot pellets[,]" which defendant stored in the

basement of the Bennett Avenue residence. J.M. believed defendant was at the

Bennett Avenue location at that time. After the interview concluded, Mitchell

ran a warrant check and discovered defendant had an active warrant which had

been issued in Hamilton Township. Mitchell, another NCPD detective, and two

officers from another police department, went to the Bennett Avenue residence.

      Mitchell testified that he was familiar with the residence because in

January 2014, the police had received complaints of consistent drug-related

activity occurring there. The police and K.C., the owner of the property, had


                                                                          A-5192-16T4
                                        5
developed a plan to combat this problem by posting no trespassing signs,

evicting anyone who was not supposed to be on the premises, and providing the

police with a list of individuals who were permitted to be there. Defendant and

J.M. were not on the list.

      In February 2014, defendant and J.M. were arrested at the Bennett Avenue

residence for "trespass[ing] and loitering to obtain a controlled dangerous

substance." Defendant was told that he was not supposed to be on the premises

and he indicated he understood.

      On March 25, 2014, when the police arrived at the home, Mitchell said he

noticed "silhouettes in the windows upstairs on the second floor." According to

Mitchell, the outside door to the house was open six to eight inches. The police

knocked on the door and announced their presence, but no one answered. The

officers entered the outside door and proceeded to the main door, which was

completely open. The officers again knocked and announced, but there was no

answer.

      The police entered the house and proceeded up the stairs. C.C., K.C.'s

stepson, emerged from a room. While the police were speaking with C.C.,

defendant appeared and was promptly arrested. Mitchell explained to C.C. that

the police were looking for a gun and C.C. responded, "Oh, that's [defendant's]


                                                                        A-5192-16T4
                                       6
gun, it's downstairs." C.C. then executed a consent-to-search form and the

officers located an imitation handgun in the basement.

       C.C.'s account of the circumstances surrounding defendant and the police

encounter on March 25, 2014, differed from Mitchell's account. C.C. testified

that there was a storm door on the house and that the front doors were definitely

closed that night. He said he knew about his stepmother's list of persons who

were permitted on the premises, but he was unsure whether defendant was on

the list.

       C.C. further testified that defendant had been given permission to stay at

the house. According to C.C., defendant paid rent to his brother, who then gave

the rent to his stepmother. C.C. further testified that he did not recall defendant

ever coming to the house out of breath. He said his brother had a gun in the

basement, but conceded there might have been other guns in the house.

       C.C. admitted he had a criminal record and was high on heroin the night

defendant was arrested. C.C. said that when the police entered the home, he was

sleeping and awoke when the officers ran up the stairs. According to C.C., the

police entered his room and brought him downstairs where they told him they

were looking for a gun.




                                                                           A-5192-16T4
                                        7
        C.C. stated that the police told him that if he did not let them search the

premises, "[they] all would have to leave the house until [the police] got a

warrant," and the police would charge him with anything they found. C.C.

testified that he felt his consent was not voluntary because he "[did not] want to

be charged with anything." C.C. said the police never informed him he could

refuse to consent.

        The motion judge placed his decision on the record. The judge found that

the officers had testified credibly and that C.C.'s "credibility [was] severely in

question." The judge noted that C.C. "was simply overwhelmed" by the drugs

he had taken on the night in question, and his testimony was not "worthy of

belief" because he had been under the influence of heroin. The judge found that

when the officers came to the residence on Bennett Avenue, the inner door was

ajar.

        The judge noted that the police were familiar with the premises because

they had been there many times. They knew C.C. The officers entered the house

to secure C.C.'s consent for the search. The judge found that there were no

exigent circumstances for a warrantless search of the premises.         The judge

determined, however, that the officers had validly obtained consent-to-search




                                                                           A-5192-16T4
                                         8
the premises in order to locate the weapon allegedly used in the robbery. The

judge concluded the search was reasonable.

                                      III.

      As noted, defendant argues that the motion judge erred by denying his

motion to suppress the imitation gun. He contends the police unlawfully entered

the house and did not have authority to undertake a warrantless search of the

premises. In response, the State first argues that defendant does not have

standing to challenge the search.

      Under federal law, an individual only has standing to contest a search or

seizure where the individual "ha[s] a 'legitimate expectation of privacy in the

premises' searched." Byrd v. United States,     U.S.    , 138 S. Ct. 1518, 1526

(2018) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). To establish

standing, the individual must show that he had "an actual (subjective)

expectation of privacy and . . . that the expectation [is] one that society is

prepared to recognize as 'reasonable.'" Katz v. United States, 389 U.S. 347, 361

(1967) (Harlan, J., concurring). A trespasser does not have standing because he

does not have a "legitimate" expectation of privacy. See, e.g., Rakas, 439 U.S.

at 143 n.12 ("A burglar plying his trade in a summer cabin during the off season




                                                                        A-5192-16T4
                                       9
may have a thoroughly justified subjective expectation of privacy, but it is not

one which the law recognizes as 'legitimate.'").

      New Jersey's standing jurisprudence differs from federal law in that "a

criminal defendant is entitled to bring a motion to suppress evidence obtained

in an unlawful search and seizure if he has a proprietary, possessory or

participatory interest in either the place searched or the property seized." State

v. Alston, 88 N.J. 211, 228 (1981) (citations omitted). "Unlike federal law, New

Jersey law confers automatic standing on a defendant 'in cases where the

defendant is charged with an offense in which possession of the seized evidence

at the time of the contested search is an essential element of guilt.'" State v.

Hinton, 216 N.J. 211, 233-34 (2013) (quoting Alston, 88 N.J. at 228).

      Where real property is concerned, however, our Supreme Court has

recognized three exceptions to automatic standing. State v. Randolph, 228 N.J.

566, 585 (2017). "An accused will not have standing to challenge a search of

abandoned property, property on which he was trespassing, or property from

which he was lawfully evicted." Ibid. (citations omitted). A trespasser does not

have standing because "a trespasser, by definition does not have a possessory or

proprietary interest in property where he does not belong—where he does not




                                                                          A-5192-16T4
                                       10
have permission or consent to be." Id. at 586 (quoting State v. Brown, 216 N.J.

508, 535 (2014)).

      "[T]he State bears the burden of proving by a preponderance of the

evidence that the building is abandoned or defendant[] [is a] trespasser[]."

Brown, 216 N.J. at 529 (citing State v. Frankel, 179 N.J. 586, 598 (2004),

overruled in part by State v. Edmonds, 211 N.J. 117 (2012)). Therefore, "[i]f

the State can establish that, 'in light of the totality of the circumstances, a police

officer ha[d] an objectively reasonable basis to believe . . . [the defendant] was

a trespasser,' a defendant will not have standing to challenge a search."

Randolph, 228 N.J. at 587 (second and third alteration in original) (quoting

Brown, 216 N.J. at 532, 535).

      On appeal, defendant argues he has standing to contest the officers' entry

into the home because the State did not sustain its burden of demonstrating that

he was a trespasser. He claims the State was required to take "the 'practical step'

of calling the home's owner . . . to confirm that defendant was not permitted at

the residence." We do not agree.

      In Randolph, the Court stated that it "did not suggest in Brown that a

records check is the only means for determining whether . . . a defendant is a

trespasser." Id. at 586 (citing Brown, 216 N.J. at 533). Instead, police can use


                                                                              A-5192-16T4
                                         11
their "personal knowledge of the neighborhood and its residents[.]" Ibid. (citing

Brown, 216 N.J. at 534). No one factor or course of conduct is dispositive; the

test looks to the totality of the circumstances. See id. at 587.

      Here, the judge noted that the property owner wanted the police to rid the

house of certain people, including defendant and J.M., who came there from

time-to-time. The judge pointed out that it was not clear whether defendant and

J.M. were paying rent. The judge noted that C.C.'s testimony on this issue was

not clear.

       C.C. said he believed defendant was paying his brother rent, which his

brother then turned over to the owner, but the judge found C.C.'s testimony was

not credible. The judge noted that the owner had provided the police with a list

of individuals who were allowed on the property, and defendant was not on the

list. The judge said "that[,] at least from the owner's point of view[,] . . . this

defendant was not welcome into the home."

      The judge did not, however, find that the State had carried its burden of

showing that defendant was a trespasser and apparently assumed defendant had

standing. There was evidence showing that defendant was trespassing on the

premises at the time of the search, but the evidence was not conclusive. We

therefore will assume defendant has standing to challenge the search.


                                                                           A-5192-16T4
                                       12
                                       IV.

      Defendant argues the trial court should have suppressed the imitation gun

because the police seized the gun in what defendant claims was an unlawful,

warrantless search of the Bennett Avenue residence. Defendant argues that the

police unlawfully entered the premises, and there were no exigent circumstances

permitting a warrantless search. Defendant further argues that C.C.'s consent-

to-search was invalid because the police obtained his consent after the alleged

illegal entry into the home.

      Under New Jersey law, "an arrest warrant is not lawfully executed in a

dwelling unless the officers executing the warrant have objectively reasonable

bases for believing that the person named in the warrant both resides in the

dwelling and is within the dwelling at the time." State v. Miller, 342 N.J. Super.

474, 479 (App. Div. 2001). In determining whether the police have objectively

reasonable bases for their beliefs, the police cannot simply rely on

unsubstantiated statements. See, e.g., State v. Cleveland, 371 N.J. Super. 286,

291, 295 (App. Div. 2004) (holding that an informant's statement to police that

"defendant was 'staying' with a woman" at a hotel did not constitute objectively

reasonable grounds to believe the defendant resided at the hotel).




                                                                          A-5192-16T4
                                       13
      In Miller, police had a valid parole warrant for the defendant. 342 N.J.

Super. at 480. After many failed attempts at executing the warrant, the police

tried another address. Id. at 481. The defendant was not at that location, but the

occupant told them the defendant was living with his children and their mother

at another location. Ibid. Without corroborating that information, the police

went to the location and found the defendant. Ibid. We held the officers did not

have an objectively reasonable basis to enter the property because they "did

nothing to confirm independently the snippet of opinion they had received from

[the occupant]." Id. at 500. We stated that police must confirm the information

obtained "by observation, investigation, or other inquiry." Id. at 497.

      In this case, defendant argues the officers did not have an objectively

reasonable basis to believe that he was residing at the Bennett Avenue residence

because they did not contact the property owner to determine whether he had

been added to the list of persons who were permitted on the premises. We

disagree. The officers had other information, which provided them with an

objectively reasonable basis to believe defendant was residing in the home.

      As we stated previously, J.M. told Mitchell he was living with defendant

in the house on Bennett Avenue. In addition, the police were familiar with the

residence and knew that defendant had previously lived there, apparently


                                                                          A-5192-16T4
                                       14
without the owner's permission. Therefore, the officers had an objectively

reasonable basis for believing defendant was residing at the Bennett Place

property.

      The officers also had an objectively reasonable basis for believing

defendant was present at the house when they executed the warrant. During his

interview, J.M. told Mitchell "he thought [defendant] was at the house" at that

time. When the police arrived, Miller observed silhouettes in the second-floor

windows, which indicated someone was at home. We conclude the officers were

validly on the premises when they obtained C.C.'s consent-to-search.

                                      V.

      Defendant also argues that C.C. did not provide a valid consent-to-search

the premises.   He contends C.C.'s consent was not voluntary.        Again, we

disagree.

      Under the Fourth Amendment to the United States Constitution, the State

has the burden of showing the consent-to-search was "freely and voluntarily

given." Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) (citing Bumper

v. North Carolina, 391 U.S. 543, 548 (1968)). Although the search-and-seizure

provision in Article 1, paragraph 7 of the New Jersey Constitution is similar to

its federal counterpart, "consent searches under the New Jersey Constitution are


                                                                        A-5192-16T4
                                      15
afforded a higher level of scrutiny." State v. Carty, 170 N.J. 632, 639, modified,

174 N.J. 351 (2002).

      To justify a warrantless search based on consent, "the State must prove

that the consent was voluntary and that the consenting party understood his or

her right to refuse consent." State v. Maristany, 133 N.J. 299, 305 (1993) (citing

State v. Johnson, 68 N.J. 349, 353-354 (1975)). The State is required to "prove

voluntariness by 'clear and positive testimony.'" State v. Chapman, 332 N.J.

Super. 452, 466 (App. Div. 2000) (quoting State v. King, 44 N.J. 346, 352

(1965)). The State must "show that the individual giving consent knew that he

or she 'had a choice in the matter.'" Carty, 170 N.J. at 639 (quoting Johnson, 68

N.J. at 354).

       Factors "tending to show that the consent was coerced" include: (1)

consent was obtained from a person who had already been arrested; (2) it was

obtained notwithstanding a denial of guilt; (3) the police obtained consent only

after the consenting person had refused initial requests for consent; (4) consent

was given where the subsequent search led to the seizure of contraband that the

accused must have known would have been discovered; and (5) consent was

given by a person in handcuffs. King, 44 N.J. at 352-53 (citations omitted).




                                                                          A-5192-16T4
                                       16
        Furthermore, factors "tending to show voluntariness of the consent"

include: "(1) that consent was given where the accused had reason to believe

that the police would find no contraband; (2) that the defendant admitted his

guilt before consent; (3) that the defendant affirmatively assisted the police

officers." Id. at 353 (citations omitted). "[T]he existence or absence of one or

more of the above factors is not determinative of the issue." Ibid. Rather, the

factors "are only guideposts to aid a trial judge in arriving at his conclusion [.]"

Ibid.

        At the suppression hearing, Mitchell testified that once he told C.C. the

police were looking for a gun, C.C. immediately responded that it was

defendant's gun, and it was downstairs in the basement of the house. Mitchell

then indicated he wanted to search the premises, and C.C. quickly responded,

"Okay. No problem." C.C. was not in handcuffs at the time, and the officers

never placed him under arrest. C.C. did not hesitate and began cooperating with

the police, as soon as he learned of their objective.

        Furthermore, Mitchell testified that he advised C.C. that he had the right

to refuse the search, that he could revoke his consent at any time, and that he

could be present during the search. The consent form set forth C.C.'s rights, and

C.C. signed the form. As noted previously, C.C. testified that Mitchell told him


                                                                            A-5192-16T4
                                        17
if he did not consent, he would have to leave the residence and would

subsequently be charged with anything discovered by police when they returned

with a search warrant. The motion judge found, however, that C.C.'s testimony

was not credible.

      We conclude there is sufficient credible evidence in the record to support

the judge's determination that C.C.'s consent was voluntary and not coerced.

Defendant's other arguments on this issue lacks sufficient merit to warrant

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

      Affirmed.




                                                                        A-5192-16T4
                                      18
