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, Sale m County, Indictment No. 15

- 04
- 0201. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
John T. Len ahan, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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.

J uly 9 , 20182 A - 5245
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Tried by a jury, defendant Melvin K. Lewis, III, was convicted of certain persons not to have weapons, N.J.S.A. 2C:3 9
- 7(b). On March 18, 2016, the trial judge commenced defendant's sentencing hearing. Defendant request ed a three
- day delay for medical reasons. He failed to return on the scheduled date, and thus was
not sentence d until July 15, 2016 , when t he judge imp osed the minimum five

- year without parole term of imprisonment called for by the statute. Defendant appeals and w e affirm. At trial, Penns Grove Police Department Corporal Joseph
Schultz testified he was dispatched to defendant's home on December 21, 201 4 , on a call reg arding an attempted burglary. Schultz approached the residence as defendant was walking out onto the
por ch. B oth men looked down and simultaneously saw a semi

automatic 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 t he officer secured the weapon , d efendant told Schultz he believed th e person intended to kill him.
Defendant explain ed that when he ignored the sound of the
doorbell , the would
- be intruder kick ed and bang ed on the door. H e heard a loud noise , assum ing it was a gunshot. The officer saw a3 A - 5245
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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 I nvestigator Jessica Venello responded immediately to Schultz's call, and d efendant and the other adult present in the home when the inci d ent occurred , defendant's girlfriend, drove to the police station to be interview ed . 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 a round 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. Tha t's the hole in the door."
Defendant then heard someone say "oh shit," the sound of something dropping, and running footsteps. Meanwhile, d efendant's girlfriend called 911. Defenda nt 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 beca use he heard his life was in danger . He went on to name certain4 A - 5245
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individuals he had confronted because they had been stealing from him . Defendant suspected t hey were planning to retaliate by putting out "a hit." The officers continued to interview defend ant 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, h e pointed out the red bag containing
a black revolver hidden beneath a living room couch. The gun held three bullets and one empty casing. La ter on that evening, the officers ran a criminal history check and verified that defendant had been convicted of predicate offenses that barred him from possessi o n of a firearm . Th e State presented essentially the same testimony during the pretrial motio n 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 hesita te in explaining his poss ession5 A - 5245
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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 of ficers

—— rather than the officers learning about defendant's record a fter 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 w hat h e 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 inten t 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.

P OINT 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
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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) (quo ting State v. Robinson , 200 N.J. 1,
1 5 (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 reac hed a different conclusion. State v. Elders , 192 N.J. 224, 244 (2007) ( quo ting 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 interventi on and correction.'" Ibid. ( quo ting Johnson , 42 N.J. at 162). Under the Fourth Amendment of the United States Constitution and Article 1, P aragraph 7 of the New Jersey Constitution, a warrantless search is presumed to be invalid, and places upon the
St ate 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 exc eption to the Fourth
Amendment's search warrant requirement. Schneckloth v.7 A - 5245
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Bustamonte , 412 U.S. 218, 219 (1973). Consent searche s have long been considered a " legitimate aspec t 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 bear s 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.

T he New Jersey Sup reme Court recently reiterated the analysis courts must employ when assessing voluntarin ess that was first outlined in State v. King , 44 N.J. 346, 352
- 53 (1965):

F actors potentially indicating coerced consent include: (1) t hat consent was made by an individual already arrested; (2) t hat consent was obtained despite a denial of guilt; (3) t hat consent was obtained only after the accused had refused initial request s for consent to search; (4) t hat consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered; [and] (5) t hat consent was given while the defendant was handcuffed. . . . Factors potentially indicating voluntariness of consent include:8 A - 5245
- 15T3 (1) t hat consent was given where the accused had reason to believe that the police would find no contraband; (2) t hat the de fendant admitted his guilt before consent; [and] (3) t hat the defendant affirmatively assisted the police officers. [ State v. Haga ns , 2 33 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 a l o n e 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 particu lar circumstances of the case[,]" and each situation must rise or fall on its own facts. I bi d. (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. T he information conveyed in the dispatch was confirmed when the officer and defendant simultaneously saw the weapon on the porch . D efendant dr o ve 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
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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 officer s who were conducting the interview.

D efendant , while on tape, offer ed to show police where he had hidden the weapon, and told them that he was a convicted person not permitted to possess firearms. D efendant 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 info rmation 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, d efendant's motion to suppress was properly denied. Defendant also contends that it was "p lain 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
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Defendant re lies 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, d efendant 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. 7 42 (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 st atute 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.