SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5245-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MELVIN K. LEWIS, III a/k/a

MELVIN K. LEWIS,

Defendant-Appellant.

_________________________________

Submitted April 11, 2018 – Decided

Before Judges Alvarez and Geiger.

On appeal from Superior Court of New Jersey, 

Law Division, Salem County, Indictment No. 15-

04-0201.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Michele A. Adubato, Designated 

Counsel, on the brief).

John T. Lenahan, Salem County Prosecutor, 

attorney for respondent (David M. Galemba, 

Assistant Prosecutor, of counsel and on the 

brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

July 9, 2018
2 A-5245-15T3

Tried by a jury, defendant Melvin K. Lewis, III, was convicted 

of certain persons not to have weapons, N.J.S.A. 2C:39-7(b). On 

March 18, 2016, the trial judge commenced defendant's sentencing 

hearing. Defendant requested a three-day delay for medical 

reasons. He failed to return on the scheduled date, and thus was 

not sentenced until July 15, 2016, when the judge imposed the 

minimum five-year without parole term of imprisonment called for 

by the statute. Defendant appeals and we affirm.

At trial, Penns Grove Police Department Corporal Joseph 

Schultz testified he was dispatched to defendant's home on December 

21, 2014, on a call regarding an attempted burglary. Schultz 

approached the residence as defendant was walking out onto the 

porch. Both men looked down and simultaneously saw a semiautomatic handgun on the ground in front of the doorway. A 

magazine lay alongside. 

The officer asked defendant "what's going on, what 

happened[,]" and defendant responded that someone had tried to 

break into his home. While the officer secured the weapon,

defendant told Schultz he believed the person intended to kill 

him. 

Defendant explained that when he ignored the sound of the

doorbell, the would-be intruder kicked and banged on the door. He 

heard a loud noise, assuming it was a gunshot. The officer saw a 
3 A-5245-15T3

small hole in the door consistent with a bullet and, a few minutes 

later, found a bullet lying in close proximity to the location of 

the handgun. 

County Prosecutor's Investigator Jessica Venello responded 

immediately to Schultz's call, and defendant and the other adult 

present in the home when the incident occurred, defendant's 

girlfriend, drove to the police station to be interviewed. Venello 

began the taped interview by asking defendant what had happened. 

Defendant answered that he had a break-in at another property he 

owned, and when he returned home around 7:00 p.m., someone he did 

not know knocked and called out his name. Defendant told his 

girlfriend to go into the bedroom. Defendant added: "And all of 

a sudden, boom, boom, boom. The hole you see in the door is made 

by me. By a blank that saved my life. I have the gun at the 

house. I shot a .38 revolver blank. That's the hole in the door." 

Defendant then heard someone say "oh shit," the sound of something 

dropping, and running footsteps. Meanwhile, defendant's 

girlfriend called 911. Defendant was reluctant to tell police 

"but that blank saved my life. That blank saved my life. Made 

them drop their gun." He told the officers that he was not 

supposed to be in possession of firearms.

Defendant said he acquired the gun two days earlier because 

he heard his life was in danger. He went on to name certain
4 A-5245-15T3

individuals he had confronted because they had been stealing from 

him. Defendant suspected they were planning to retaliate by 

putting out "a hit." The officers continued to interview defendant

about the break-in at his other property and the alleged contract

on his life. Defendant repeated his description of the shooting 

incident, and provided additional details regarding how he learned 

about the threat. 

When defendant was driven back to his home from the police 

station, he was seated in the back of a police car but not 

handcuffed. Upon arrival, he pointed out the red bag containing 

a black revolver hidden beneath a living room couch. The gun held 

three bullets and one empty casing. Later on that evening, the 

officers ran a criminal history check and verified that defendant 

had been convicted of predicate offenses that barred him from 

possession of a firearm. 

The State presented essentially the same testimony during the 

pretrial motion to suppress evidence. In his October 2, 2015 

motion decision, Judge Benjamin C. Telsey described defendant

during the taped interview as cooperative and having given "a very 

conversational statement." Defendant volunteered information 

regarding the circumstances that had led to the attack, and 

volunteered information about the weapon he had obtained two days 

earlier. Defendant did not hesitate in explaining his possession
5 A-5245-15T3

of the weapon and suggested he take the officers back to his home 

so they could seize it. When defendant was interviewed, he was 

not under arrest, handcuffed, or had any reason to believe he was 

not free to leave. Obviously, defendant knew he was a person not 

to possess because he told the officers——rather than the officers 

learning about defendant's record after additional investigation. 

Defendant may not have realized he was confessing to a crime 

because the bullets were blanks, but other than that, "he knew 

exactly what he was doing and what he was showing the police." He

brought the officers into his home while being well "aware that 

he could speak up, stop the search, or stop what was happening. 

But, that wasn't even his intent at that point. Clearly, his 

intent was to cooperate with this investigation." The court 

further found that a defendant who volunteers evidence does so at 

his own peril. Accordingly, the court denied the motion to 

suppress the weapon. 

On appeal, defendant raises the following points for our 

consideration. 

POINT I

IT WAS ERROR TO DENY THE DEFENDANT'S MOTION 

TO SUPPRESS EVIDENCE. 

POINT II

IT WAS PLAIN ERROR FOR THE TRIAL COURT TO FAIL 

TO CHARGE THE JURY ON SELF-DEFENSE.

(Not raised below).
6 A-5245-15T3

When reviewing motions to suppress, we uphold "the trial 

court's decision so long as [the factual] findings are supported 

by sufficient credible evidence in the record." State v. Rockford, 

213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 

15 (2009)). This fundamental principle has particular 

significance when the findings of the trial court are 

"substantially influenced by [the judge's] opportunity to hear and 

see the witnesses and to have the 'feel' of the case," even if we 

might have reached a different conclusion. State v. Elders, 192 

N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 

(1964)). "A trial court's findings should be disturbed only if 

they are so clearly mistaken 'that the interest of justice demands 

intervention and correction.'" Ibid. (quoting Johnson, 42 N.J. 

at 162). 

Under the Fourth Amendment of the United States Constitution 

and Article 1, Paragraph 7 of the New Jersey Constitution, a 

warrantless search is presumed to be invalid, and places upon the 

State the burden to prove that the search "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)). 

Consent is a well-recognized exception to the Fourth 

Amendment's search warrant requirement. Schneckloth v. 
7 A-5245-15T3

Bustamonte, 412 U.S. 218, 219 (1973). Consent searches have long 

been considered a "legitimate aspect of effective police 

activity." State v. Domicz, 188 N.J. 285, 305 (2006) (quoting 

Schneckloth, 412 U.S. at 228). A consent to search must be 

voluntary and knowing in nature, and the person giving consent 

must be advised of his right to refuse. State v. Johnson, 68 N.J. 

349, 353-54 (1975). The State bears the burden of demonstrating 

the person giving consent knew he or she had a choice by clear and 

convincing evidence. Domicz, 188 N.J. at 309.

The New Jersey Supreme Court recently reiterated the analysis 

courts must employ when assessing voluntariness that was first 

outlined in State v. King, 44 N.J. 346, 352-53 (1965):

Factors potentially indicating coerced 

consent include: 

(1) that consent was made by an 

individual already arrested; 

(2) that consent was obtained 

despite a denial of guilt; (3) that 

consent was obtained only after the 

accused had refused initial 

requests for consent to search; 

(4) that consent was given where the 

subsequent search resulted in a 

seizure of contraband which the 

accused must have known would be 

discovered; [and] (5) that consent 

was given while the defendant was 

handcuffed. . . .

Factors potentially indicating voluntariness 

of consent include:
8 A-5245-15T3

(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; 

[and] (3) that the defendant 

affirmatively assisted the police 

officers.

[State v. Hagans, 233 N.J. 30, 39 (2018) 

(alterations in original) (citations omitted)

(quoting King, 44 N.J. at 352-53).]

Citing to King, the Hagans Court described the factors as

"guideposts," and observed that the absence of one alone may be 

very consequential in one case while insignificant in another. 

Id. at 40. The voluntariness of the consent depends on "the 

totality of the particular circumstances of the case[,]" and each 

situation must rise or fall on its own facts. Ibid. (quoting 

King, 44 N.J. at 353).

In this case, the State has readily met its burden. Police 

went to defendant's home to investigate an incident in which he 

was the victim, not a suspect. The information conveyed in the

dispatch was confirmed when the officer and defendant 

simultaneously saw the weapon on the porch. 

Defendant drove himself and his girlfriend to the police 

station voluntarily in order to assist police in their 

investigation of the attempted break-in. During his taped 

interview, while still viewed as a victim and not a suspect, 
9 A-5245-15T3

defendant explained that he had fired a revolver through the front

door. Thus, defendant admitted his guilt before police even had 

any reason to suspect that he had committed a crime. His 

statements no doubt came as a surprise to the officers who were 

conducting the interview.

Defendant, while on tape, offered to show police where he had 

hidden the weapon, and told them that he was a convicted person 

not permitted to possess firearms. Defendant acknowledged his

guilt and provided police with the location of the evidence. 

None of the factors apply that would lead us to the conclusion 

defendant's consent was involuntary. He was not under arrest, was

not handcuffed, faced no accusation, and was not asked for consent. 

The record therefore supports the judge's conclusion that 

defendant affirmatively volunteered the information that he had 

committed a crime and led the officers to the place where the 

weapon could be found. His decision was not coerced or 

involuntary. Therefore, defendant's motion to suppress was 

properly denied. 

Defendant also contends that it was "plain error" for the 

court to have failed to charge the jury under the theory that 

defendant acted in self-defense. We consider this argument to be 

so lacking in merit as to warrant little discussion in a written 

opinion. R. 2:11-3(e)(2). 
10 A-5245-15T3

Defendant relies upon State v. Montalvo, 229 N.J. 300 (2017),

in support of the argument. Montalvo, however, relates to a 

different statute. In Montalvo, defendant was charged with 

unlawful possession of a weapon, not possession of a weapon by a 

certain person. Id. at 307. Here, defendant does not dispute 

that he is a person prohibited from possession. See In re Wheeler, 

433 N.J. Super. 560, 597-98 (App. Div. 2013) (citing District of 

Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of 

Chicago, 561 U.S. 742 (2010)). That a person who has lost his 

right to arm himself by virtue of convictions can continue to be 

charged with the offense at issue here was a fundamental principle 

left intact by Heller and McDonald.

All that is required under the pertinent statute is that a

defendant has been previously found guilty of a predicate offense 

and was in possession of the firearm. See N.J.S.A 2C:39-7(b). 

The thrust of the statute is that mere possession by a convicted 

person violates the law. Thus, self-defense is not a defense to 

the charge, and no instruction was necessary.

Affirmed.