SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0184-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH G. MURILLO,

Defendant-Appellant.

____________________________

Submitted December 2, 2019 – Decided

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment Nos. 17-09-

1087 and 18-01-0045.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Rochelle Mareka Amelia Watson, Assistant 

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

Christopher L.C. Kuberiet, Acting Middlesex County 

Prosecutor, attorney for respondent (Patrick F. 

Galdieri, II, Special Deputy Attorney General/Acting 

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NOT FOR PUBLICATION WITHOUT THE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.

December 11, 2019
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A-0184-18T4

Defendant appeals from his conviction for second-degree unlawful 

possession of a handgun, N.J.S.A. 2C:39-5(b)(1).

1

 Police found the gun stashed 

in a wall of a commercial establishment on a public street, where defendant had 

no privacy interest. He mainly contends that Judge Benjamin S. Bucca, Jr.

erroneously denied defendant's motion to suppress. We disagree and affirm.

The judge conducted a hearing, denied the motion to suppress, and 

rendered an oral opinion. Defendant then pled guilty. In accordance with his

plea agreement, Judge Bucca sentenced defendant to a five-year prison term 

with a forty-two month parole disqualifier.

On appeal, defendant argues:

POINT I

THE POLICE DID NOT POSSESS REASONABLE 

SUSPICION SUFFICIENT TO STOP [DEFENDANT]

1

 Defendant was charged under indictment number 17-09-1087 with seconddegree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count one); 

second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-

4(a)(1) (count two); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count 

three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four); 

and fourth-degree possession of hollow-nosed bullets, N.J.S.A. 2C:39-3(f) 

(count five). Under indictment number 18-01-0045, defendant was charged with 

fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count one); 

third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count two); thirddegree possession of Xanax, N.J.S.A. 2C:35-10(a)(1) (count three); and fourthdegree hindering the apprehension or prosecution of another, N.J.S.A. 2C:29-

3(a)(7) (count four). Defendant also pled guilty to fourth-degree possession of 

marijuana, N.J.S.A. 2C:35-10(a)(3), which is not the subject of this appeal.
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AND THE EVIDENCE OBTAINED AFTER THE 

UNCONSTITUTIONAL SEIZURE WAS 

INADMISSIBLE UNDER THE DOCTRINE OF 

PLAIN VIEW.

We conclude that defendant's argument is without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless add the 

following brief remarks.

"[O]n appellate review, a trial [judge's] factual findings in support of 

granting or denying a motion to suppress must be upheld when 'those findings 

are supported by sufficient credible evidence in the record.'" State v. S.S., 229 

N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). This 

court "accord[s] deference to those factual findings because they are 

substantially influenced by [an] opportunity to hear and see the witnesses and to 

have the feel of the case, which a reviewing court cannot enjoy." State v. Lamb, 

218 N.J. 300, 313 (2014) (alteration in original) (internal quotation marks and 

citations omitted). This court "should not disturb a trial [judge's] factual

findings unless those findings are 'so clearly mistaken that the interests of justice 

demand intervention and correction.'" S.S., 229 N.J. at 374 (quoting Gamble, 

218 N.J. at 425). "[A] trial court's legal conclusions are reviewed de novo." 

Lamb, 218 N.J. at 313.
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Here, police responded to a 9-1-1 call and spotted defendant. The officer 

asked defendant if he was in a fight, defendant replied no, and the officer left 

the scene. Twenty minutes later, police returned in response to another call, 

specifically involving a gun. They detained defendant and two others—and 

asked for their identification. In conducting a protective sweep of the area, 

police then found the gun.

The law on whether one has an expectation of privacy is settled. "One 

seeking to invoke the protection of the [F]ourth [A]mendment must establish 

that a reasonable or legitimate expectation of privacy was invaded by 

government action." State v. Marshall, 123 N.J. 1, 66 (1991). To determine 

whether an expectation of privacy is protectable, federal courts "employ[] a twoprong test: first, a person must have exhibited an actual expectation of privacy, 

and second, the expectation must be one that society is prepared to recognize as 

reasonable or legitimate." State v. Sencion, 454 N.J. Super. 25, 32 (App. Div. 

2018). In New Jersey, "[o]ur Supreme Court, however, has defined an objective 

test asking only whether a person has a reasonable expectation of privacy." Ibid. 

Such "'[e]xpectations of privacy are established by general social norms,' and 

must align with the 'aims of a free and open society.'" State v. Taylor, 440 N.J. 
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Super. 515, 523 (App. Div. 2015) (quoting State v. Hempele, 120 N.J. 182, 200-

01 (1990)).

Here, defendant had no reasonable expectation of privacy in the public 

wall, which was located on a sidewalk accessible to any person. Therefore, the 

seizure of the gun—even though not in plain view—was constitutional. Indeed,

the judge found that there was no reasonable expectation of privacy in the wall

because the firearm was hidden in a public area to which the general public has 

access.

Affirmed.