SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 18T3 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. RON D. SANDERS, a/k/a TRYSHAWN RACCO, DESMOND MADISON, DESMOND MASISON, DARELL NELSON, ZYRON NELSON, JASMIRE NELSON, DYRELL OVERTON, ROGEA OVERTON, DESMOND PARHAM, TARIQ PARHAM, RON SANDER, T R ISHAWN SANDERS, and ZYRON SANDERS, Defendant

- Appellant.

_____________________ ___ ____

Submitted October 22, 2019

– Decided Before Judges Fisher and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Unio n County, Indictment No. 13

- 12

- 1011.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

October 29, 20192 A

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- 18T3 Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Mareka Amelia Watson, Deputy Public Defender II, of counsel and on the brief). Gurbir S. Grewal, Attorney General, attorne y for respondent (Adam David Klein, Deputy Attorney General, of counsel and on the brief). PER CURIAM We are a sked in this appeal to consider the constitutionality of a search of a residence when only one of two occupants consents . In such instance s , constitutional benchmarks have been established. In Georgia v. Rudolph , 547 U.S. 103, 121 (2006), the Court held that when "a potential defendant with self

interest in objecting is in fact at the door and objects, the co

- tenant's permission does not suffice for a reasonable search." In a later case, the Court determined that a lawfully arrested and detained co

- occup ant stands in the same place as an absent occupant

. Fernandez v. California , 571 U.S. 292 , 3 03 (2014). 1 Guided by these principles, we examine whether police were obligated to seek the

1 Our Supreme Court, in State v. Coles , 218 N.J. 322, 338 (2014), restated these principles, concluding that "when faced with the circumstances of a present and ob jecting co

- occupant, it is objectively unreasonable for police to rely on the consenting occupant." The Court then also held that "police responsibility for [an] unlawful detention or removal of a tenant who was prevented from being present at the scene t o voice [an] objection to the search is not equivalent to other neutral circumstances causing the defendant's absence." Id. at 340.3 A

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consent of defendant, who was arrested and detained but physically ne arby ; we also consider whether defendant actually objected to the search. This is not the first time we have reviewed the d enial of defendant's motion to suppress evidence seized from a residence he shared with M .P

. In an earlier appeal, we expressed uncertainty about the trial judge's determination that M.P.'s consent was sufficient "because of the lack of findings about the impact of the principles outlined " in Randolph and Coles and , so, we remanded

" for further findings. " State v. Sanders , No. A

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- 16 (App. Div. Mar. 16, 2018) (slip op. at 2). In expounding on the information critical to the determination, we stated that the record largely revealed only that defendant was arrested and seated in a police car outside his apartment building

– apparently at the same time police requested and obtained M.P.'s consent to search . T he record did "not reveal whether defendant was asked for consent or given an opportunity to object," nor " whet her defendant actually objected " from his nearby location. Id. at 5. Following our remand, the trial judge heard the testimony of both the arresting officer and defe ndant . The judge found the officer credible when he testified that defendant was arrested outside the apartment and seated in a patrol

c ar when consent was sought from M.P.; it was also confirmed that the police4 A

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did not seek defendant's consent. T he judge found as well that defendant was not credible when he asserted that he objected by telling the police at that time "not [ to ] go in [his ] apartment." In light of the constitutional framework describ ed above, we conclude that the search was lawful with ou t defendant's consent because, having been lawfully arrested and detained

– there being no argument that the arrest or detention was unlawful

– defendant was, for the purpose of securing consent , absent from the

scene. Fernandez , 571 U.S. at 303 ; Coles , 218 N.J. at 340

. Police had no obligat ion in this situation to seek defendan t's consent. And, based on credibility findings, the judge determined that defendant did not in fact object to the search of his residence

. The judge's fact findings, which are entitled to our deference, State v. Robinson , 200 N.J. 1, 15 (2008 ), support the conclusion that the police acted reasonably in these circumstances when seeking only M.P.'s consent to search the residence. We, thus, affirm the order denying defendant's suppression motion. In deciding the earlier appeal, we expressly declined to consider defendant's argument that the sentence imposed was excessive. Sanders , slip op. at 2. Following the denial of his suppression motion, defendant entered into5 A

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a plea agreement and pleaded guilty in one indictment to: third

- degree distribution of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35

- 7; third

- degree CDS possession with the intent to distribute, N.J.S. A. 2C:35

- 5(a)(1) and

- 5(b)(3); and second

- degree eluding, N.J.S.A. 2C:29

- 2(b). The judge sentenced defendant on the first of these convictions to an eight

- year prison term, subject to a forty

- two

- month period of parole ineligibility, and a concurrent five

- year prison term on the eluding conviction; on the other CDS conviction, the judge imposed a seven

- year prison term , which wa s ordered to run consecutively to the eight

- year term. Pursuant to the plea agreement, as to another indictment, d efendant also plead ed guilty to third

- degree CDS possession with the intent to distribute, N.J.S. A. 2C:35

- 5(a)(1) and

- 5(b)(3) , and on that c onviction, the judge imposed a five

- year term, concurrent to the aggregate sentence imposed in the other indictment

. In imposing these prison terms, the judge found aggravating factors three, six, and nine, N.J.S.A. 2C:44

- 1( a)(3), (6), (9) , and no mitigat ing factors

. In his appeal, defendant contends that the sentence was excessive because the judge failed to find and app ly mitigating factors that apply when imprisonment would cause hardship to the defendant or dependents, N.J.S.A. 2C:44

- 1(b)(11 ), and when the defendant has substantially cooperated with law6 A

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enforcement , N.J.S.A. 2C:44

- 1(b)(12 )

. W e find insufficient merit in defendant's arguments about his sentence to warrant discussion in a written opinion. R. 2:11

- 3(e)(2). Affirmed.