SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0750-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

RANDY P. FERNANDEZ,

Defendant-Appellant.

_________________________

Argued January 25, 2019 – Decided July 15, 2019

Before Judges Simonelli, Whipple and DeAlmeida. 

On appeal from the Superior Court of New Jersey, Law 

Division, Morris County, Indictment No. 15-10-0888.

Alyssa A. Aiello, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Joshua D. Sanders, Assistant 

Deputy Public Defender, of counsel and on the brief). 

John K. McNamara, Jr., Chief Assistant Prosecutor, 

argued the cause for respondent (Frederic M. Knapp, 

Morris County Prosecutor, attorney; Erin Smith 

Wisloff, Supervising Assistant Prosecutor, on the 

brief). 

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Following the denial of his motion to suppress statements made to the 

police and items seized from his apartment, defendant Randy P. Fernandez pled 

guilty to three counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(2). The trial 

court sentenced defendant in accordance with the plea agreement to a thirteenyear term of imprisonment with an eighty-five percent period of parole 

ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant raises the following contentions:

POINT I

BOTH THE EVIDENCE AND THE STATEMENTS 

OBTAINED FROM [DEFENDANT] MUST BE 

SUPPRESSED BECAUSE THEY ARE THE RESULT 

OF THE WARRANTLESS ENTRY OF HIS HOME. 

POINT II

[DEFENDANT'S] SENTENCE IS EXCESSIVE, 

UNDULY PUNITIVE, AND MUST BE REDUCED.

We reject these contentions and affirm.

I.

At 1:58 p.m. on January 6, 2015, detectives Michael Pier and William 

McCarthy of the Dover Police Department responded to a holdup alarm at a local 

delicatessen. Prior to this robbery, the delicatessen had been robbed three times 
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in November 2014. During the course of investigating the prior robberies, a 

confidential informant advised the police that defendant committed them. The 

detectives had defendant's motor vehicle registration, which bore his address, 

apartment number and photograph, and immediately went to the apartment 

building. On route, the detectives received additional information that the 

perpetrator was wearing all black clothing, had brandished a handgun, and had 

exited the delicatessen, heading toward Beach Street, which intersects with the 

street on which defendant lived.

The detectives arrived at defendant's apartment building, which contained

approximately six apartments. They went to the front door, which was locked, 

and started ringing doorbells and knocking on the door. Someone in the building 

unlocked the front door. The detectives entered into the foyer where they saw 

mailboxes. The mailbox for apartment number three bore defendant's last name.

The detectives went to defendant's apartment and knocked on the door. 

When defendant opened the door, the detectives saw he was sweating, out of 

breath and nervous. They asked defendant if they could enter his apartment and 

defendant consented. Once inside, the detectives advised defendant they had 

information that he committed the robberies at the delicatessen and wanted to 

search his apartment for evidence. Defendant consented to the search of his 
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apartment. Pier advised defendant he had the right to refuse to give consent and

could terminate the search at any time. Defendant again consented to the search 

of his apartment. The detectives searched the apartment, found nothing

connecting defendant to the robberies and left.

While standing outside defendant's apartment door discussing the case, 

the detectives heard rummaging noises coming from the area of the attic inside 

defendant's apartment. They knocked on defendant's door and when defendant 

opened it, they asked about the noise and asked if they could re-enter the 

apartment to search it again. Defendant was initially hesitant and suggested the 

detectives get a search warrant, to which they agreed, but then consented to the

detectives re-entering his apartment without a warrant and to conduct a second 

search. The detectives again advised defendant he had the right to refuse consent 

and could terminate the search at any time. Defendant did not refuse consent or 

terminate the search. McCarthy then searched the attic and found a jacket, pants, 

sunglasses, gloves, boots and a gun. 

The detectives arrested defendant and advised him of his Miranda1rights. 

Defendant then admitted he committed the armed robberies of the delicatessen.

 

1

 Miranda v. Arizona, 384 U.S. 436 (1966).
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He was transported to police headquarters, where, prior to his videotaped 

interrogation, he was again advised of his Miranda rights and signed and 

initialed the Miranda form. Defendant also signed a consent to search form and 

acknowledged he had authorized the search of his apartment. Defendant told 

the detectives that he placed the money from that day's robbery in a shoebox 

next to a stack of computer monitors and described where they would find the 

money in the attic inside his apartment. Defendant confirmed that the detectives 

would be able to return to his apartment to retrieve the money and that his father, 

who also resided in the apartment, would allow them access to the apartment. 

The detectives returned to defendant's apartment and spoke to his father, who 

consented to a search of the attic and signed a consent to search form. The police 

searched the attic and found $227 in a shoebox next to computer monitors.

Defendant filed a motion to suppress the evidence seized from his 

apartment, arguing he did not consent to the search of his apartment. Following 

a hearing, at which Pier, McCarthy and defendant testified, the motion judge 

issued a comprehensive written opinion, dated October 12, 2016. The judge 

made credibility determinations and detailed factual findings, and concluded

defendant freely and voluntarily consented to the first two searches of his 
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apartment, and his father freely and voluntarily consented to the third search, 

including the search of the attic. 

II.

On appeal, defendant did not address the validity of the consent to search

his apartment or the judge's rulings on this issue. Thus, the issue is deemed 

waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); 

Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019). 

Rather, defendant argues for the first time on appeal that the detectives 

unlawfully entered the foyer of his apartment building by ringing doorbells of 

neighbors in order to gain entry. 

"Generally, 'the points of divergence developed in proceedings before a 

trial court define the metes and bounds of appellate review.'" State v. Witt, 223 

N.J. 409, 419 (2015) (quoting State v. Robinson, 200 N.J. 1, 19 (2009)). "Parties 

must make known their positions at the suppression hearing so that the trial court 

can rule on the issues before it." Ibid. "For sound jurisprudential reasons, with 

few exceptions, 'our appellate courts will decline to consider questions or issues 

not properly presented to the trial court when an opportunity for such a 

presentation is available.'" Ibid. (quoting Robinson, 200 N.J. at 20).
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Here, the trial court was never called on to rule on the legality of the 

detectives' entry into the apartment building and the State was deprived of the

opportunity to establish a more robust record that might have resolved the issue.

Under the circumstances, we should decline to entertain the newly-raised issue. 

However, we discern nothing unlawful about the detectives' entry into the foyer 

of defendant's apartment building.

The detectives had information that defendant committed the armed 

robberies and knew he lived in apartment three of the apartment building. They

went to the apartment building to investigate. Their entry into the foyer was 

proper, as defendant had no reasonable expectation of privacy in that common 

area. Case law supports this conclusion. See State v. Brown, 282 N.J. Super. 

538, 547 (App. Div. 1995) (holding a tenant does not have a reasonable 

expectation of privacy in the common areas of an apartment building); State v. 

Ball, 219 N.J. Super. 501, 506-07 (App. Div. 1987) (holding one does not have 

a reasonable expectation of privacy in areas that are also used by other 

occupants); State v. Jordan, 115 N.J. Super. 73, 75 (App. Div. 1971) (noting that

one does not have a reasonable expectation of privacy in the common hallways 

of apartment buildings). In addition, the police do not need a warrant to 

approach an apartment building and knock on the door, State v. Craft, 425 N.J. 
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Super. 546, 552 (App. Div. 2012), and may enter the common passageway of a 

multi-family dwelling in furtherance of an investigation, State v. Smith, 37 N.J. 

481, 496 (1962). The fact that the detectives gained entry to the foyer area by 

ringing the doorbells of other tenants does not change the analysis, as defendant 

did not have a right to exclude the police from the building's common areas and 

the detectives had the right to enter the foyer in furtherance of their investigation 

of the armed robberies. 

State v. Jefferson, 413 N.J. Super. 344 (App. Div. 2010), on which 

defendant relies, does not change this result. There, the police were 

investigating a citizen's tip of shots fired and located the suspected car of the 

alleged shooter in front of the defendant's residence, which was a multi-family 

dwelling with a common hallway. Id. at 349-50. The police forcibly entered 

the front door as the defendant tried to keep them out. Id. at 350-51. A 

significant distinguishing factor of Jefferson and the case here is that there was 

no forced entry into the foyer area; rather, the detectives gained entry by a tenant 

who had access to the apartment building, including the foyer. Accordingly, we 

discern no reason to reverse.
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III.

At sentencing, the court found aggravating factor three, "[t]he risk that the 

defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3); factor six, 

"[t]he extent of the defendant's prior criminal record and the seriousness of the 

offenses of which he has been convicted," N.J.S.A. 2C:44-1(a)(6); and factor 

nine, "[t]he need for deterring the defendant and others from violating the law," 

N.J.S.A. 2C:44-1(a)(9). The court also found mitigating factor eleven, "[t]he 

imprisonment of the defendant would entail excessive hardship to himself or his 

dependents," N.J.S.A. 2C:44-1(b)(11). The court provided reasons for each of 

these findings and imposed three concurrent thirteen-year terms of 

imprisonment subject to NERA. Defendant argues his sentence is excessive and 

the court added extra time because he filed pre-trial motions and decided to go 

to trial. 

We review a judge's sentencing decision under an abuse of discretion 

standard. State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, 

we must determine whether:

(1) the sentencing guidelines were violated; (2) the 

aggravating and mitigating factors found by the 

sentencing court were not based upon competent and 

credible evidence in the record; or (3) "the application 

of the guidelines to the facts of [the] case makes the 
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sentence clearly unreasonable so as to shock the 

judicial conscience." 

[Ibid. (alteration in original) (quoting State v. Roth, 95 

N.J. 334, 364-65 (1984)).]

We have considered defendant's argument in light of the record and 

applicable legal principles and conclude it is without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the 

reasons the court expressed at sentencing. We are satisfied that the court did 

not violate the sentencing guidelines or add extra time because defendant filed 

pre-trial motions and decided to go to trial, and the record amply supports the 

judge's findings on aggravating and mitigating factors. The sentence is clearly 

reasonable and does not shock our judicial conscience.

Affirmed.