STATE OF NEW JERSEY v. CLEMENT ROMANS, a/k/a ANTHONY ROMANS, CLEMENT A. ROMANS, CLEMENT ROMAN, CLEMENTE ROMAN, and PAUL ROMAN

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We discern the following facts from the record of the

suppression hearing. On June 29, 2013, at approximately 10:30

p.m., a group of males flagged down Newark Police officers on

Lyons Avenue. The males reported one of the individuals received

a gunshot wound to his neck while in the vicinity of the Golden

Krust restaurant, located on Lyons Avenue. Defendant co-owns the

Golden Krust with his wife.

The police requested the major crimes unit respond to the

scene. Shortly thereafter, Sergeant Jerome Ramsey, Detective

Roberto Padilla, and Detective Pablo Gonzalez arrived at the area

of the Golden Krust.

P.W., a golden Krust employee working that night, testified

that around closing time two individuals entered the restaurant

and assaulted her co-worker. She noted there were "about four

kids" inside the store and "a lot" of people outside. P.W. also

testified the Golden Krust had a video surveillance system, which

would capture any individual who entered through the front door.

She knew the system operated from the back office but had never

accessed it herself.



R.S., another Golden Krust employee, also testified regarding

the night in question. At approximately 10:30 p.m., defendant

approached R.S. in the kitchen, handed him a gun, and instructed

him to place it in a garbage can. Twenty minutes later, a police

officer entered the kitchen and asked for the "boss." R.S.

directed the officer to defendant's office, located beyond the

kitchen. At this point, defendant, R.S., and several other

employees were the only persons in the restaurant besides the

police.



Sergeant Jerome Ramsey testified that, upon arriving at the

scene, patrol officers informed him a juvenile had been shot, and

the Golden Krust might have video of the incident; he then entered

the restaurant and asked defendant if he could watch the video.

Defendant gave him permission to do so. Sergeant Ramsey did not

consider defendant a suspect at that point, as he had no reason

to implicate defendant in the crime. If defendant refused to let

him watch the video, Sergeant Ramsey stated he would have sought

a warrant or subpoena.

Sergeant Ramsey determined defendant was a suspect while

viewing the video in defendant's office. The video showed a person

leave the restaurant and then return with a gun, which he "fumbled

around with." Sergeant Ramsey realized the individual was in

charge of the restaurant after he observed the person come out of

the office wearing a different shirt than when he entered.

The video further showed a person other than defendant place

the gun in a garbage can. After viewing the video, Sergeant Ramsey

went to remove the garbage bag from the can. Crime scene

investigators photographed the gun inside the garbage bag, and

then police took the gun from the bag and seized it. Sergeant

Ramsey acknowledged neither defendant nor any other employee gave

him permission to search the garbage can.



Detective Pablo Gonzalez testified as the lead investigator

responding to the incident. He received notification of a shooting

at Lyons Avenue and that emergency services were transporting the

victim to Rutgers Hospital. According to the detective, upon

arriving at the restaurant, defendant escorted Sergeant Ramsey to

the rear of the store so he could view the surveillance video.

The detective did not accompany the sergeant, stating, "I . . .

informed Sergeant Ramsey that I would be responding to the hospital

and to the second scene to attempt to gather information because

we were told that the victim was in critical condition." He

further instructed Detective Padilla to canvass the parking lot,

noting, "There were several cameras located out there."

Detective Roberto Padilla testified that as the secondary

detective, he was responsible for canvassing the area for security

cameras and witnesses. He located a camera belonging to a security

company for the nearby mall; after leaving the restaurant, he

arranged to obtain the footage. Sergeant Ramsey later viewed this

"outside" camera as part of his investigation, which depicted a

man in a black shirt and light colored pants exit a building to

the left, go to a vehicle, and then approach a crowd of people.

The crowd dispersed after the individual approached.

Defendant testified last, stating he was in his office when

police arrived and escorted him outside. Defendant said he never

gave Sergeant Ramsey permission to view the video.

At the conclusion of testimony, the court heard arguments

from counsel. The prosecutor argued police lawfully viewed the

Golden Krust footage and seized the gun under several legal

theories, including consent, exigent circumstances, and

abandonment. The trial judge rejected these theories, finding the

State "failed to prove the validity and reasonableness of the

warrantless search[,] [a]nd has also failed to satisfy any of the

exceptions to the warrant requirement." The judge also found the

testifying detectives "overall lacked some credibility and

consistency in their testimony" because they could not agree on

critical moments in the case, most notably, how they obtained

defendant's consent to view the surveillance tape.



Nevertheless, the judge concluded the "inevitable discovery

doctrine" rendered admissible both the surveillance footage and

the gun. The judge therefore denied defendant's suppression motion

on this basis.

On appeal, defendant argues the judge incorrectly applied the

inevitable discovery doctrine. The State urges us to affirm, but

in the alternative, argues the judge erred by rejecting exigent

circumstances and abandonment as justifications for the weapon

seizure.



We defer to the trial court's findings of fact in a

suppression hearing "so long as those findings are 'supported by

sufficient credible evidence in the record.'" State v. Elders,

192 N.J. 224, 243 (2007) (citation omitted). Conversely, we review

the trial court's interpretation of the law de novo. State v.

Rockford, 213 N.J. 424, 440 (2013); State v. Shaw, 213 N.J. 398,

411 (2012).



"The Fourth Amendment of the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution both

guarantee '[t]he right of the people to be secure . . . against

unreasonable searches and seizures[.]'" Shaw, supra, 213 N.J. at

409 (alterations in original) (quoting U.S. Const. amend. IV; N.J.

Const. art. I, ¶ 7). Warrantless searches and seizures by law

enforcement officers are "presumptively invalid." State v.

Pineiro, 181 N.J. 13, 19 (2004). The State has the burden of

proving that such searches and seizures are "justified by one of

the 'well-delineated exceptions' to the warrant requirement."

Shaw, supra, 213 N.J. at 409 (quoting State v. Frankel, 179 N.J.

586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed.

2d 128 (2004)).



Where no such exception exists, "[t]he exclusionary rule

generally bars the State from introducing into evidence the

'fruits' of an unconstitutional search or seizure." Id. at 412

13 (quoting Wong Sun v. United States, 371 U.S. 471, 485, 83 S.

Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963)). "Under the exclusionary

rule, 'the prosecution is not to be put in a better position than

it would have been in if no illegality had transpired.'" State

v. Smith, 212 N.J. 365, 388 (2012) (quoting Nix v. Williams, 467

U.S. 431, 443, 104 S. Ct. 2501, 2508, 81 L. Ed. 2d 377, 387

(1984)).



The inevitable discovery doctrine is an exception to the

exclusionary rule. Nix, supra, 467 U.S. at 444, 104 S. Ct. at

2509, 81 L. Ed. 2d at 387. "If the State can show that 'the

information ultimately or inevitably would have been discovered

by lawful means . . . the deterrence rationale [of the exclusionary

rule] has so little basis that the evidence should be received.'"

State v. Maltese, 222 N.J. 525, 551-52 (2015) (alterations in

original) (quoting Nix, supra, 467 U.S. at 444, 104 S. Ct. at

2509, 81 L. Ed. 2d at 387-88), cert. denied, ___ U.S. ___, 136 S.

Ct. 1187, 194 L. Ed. 2d 241 (2016).



In order to invoke the doctrine in New Jersey, the State must

show by clear and convincing evidence that:

(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of such evidence by unlawful means.



[State v. Keaton, 222 N.J. 438, 451 (2015) (quoting State v. Sugar, 100 N.J. 214, 238 (1985) (Sugar II)).]

The State must demonstrate, "had the illegality not occurred,

it would have pursued established investigatory procedures that

would have inevitably resulted in the discovery of the controverted

evidence, wholly apart from its unlawful acquisition." Sugar II,

supra, 100 N.J. at 240. "[T]he central question to be addressed

in invoking the 'inevitable discovery' rule 'is whether that very

item of evidence would inevitably have been discovered, not merely

whether evidence roughly comparable would have been so

discovered.'" State v. Worthy, 141 N.J. 368, 390 (1995) (citation

omitted). However, "the State need not demonstrate the exact

circumstances of the evidence's discovery . . . . It need only

present facts sufficient to persuade the court, by a clear and

convincing standard, that the [evidence] would be discovered."

Maltese, supra, 222 N.J. at 552 (alterations in original) (quoting

State v. Sugar, 108 N.J. 151, 158 (1987) (Sugar III)).

In his oral opinion denying defendant's motion to suppress,

the trial judge made the following findings of fact supporting

inevitable discovery:



First, I find that dispatch indicated to Sergeant Ramsey and Detective [Padilla] and Detective Gonzalez that a juvenile was shot outside or in the vicinity of the Golden Krust restaurant, located at 467 Lyons Avenue.



Two, that the restaurant was open to the general public, with enough traffic going in and out of the – in and out that the officers could suspect, at the very least, that someone inside the restaurant may have been able to provide information concerning the shooting.



Three, as standard police procedures include canvasing the area where the crime occurred for surveillance footage.



Four, surveillance footage recovered from a nearby business showed the shooting, an individual who appears to be the shooter walking into the Golden Krust restaurant.



Refusal by a defendant – by the defendant, certainly would have aroused suspicion in the minds of the investigating officers as to the contents of the surveillance tape, which certainly would have led to the – as part and parcel of . . . normal investigative procedures, would have led to the application for and the granting of a search warrant for the subject tapes.







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And, of course, I also find that had the search warrant been granted, a review of the tapes would have revealed all of the information that the [c]ourt previously referred to as Mr. Romans' involvement in the subject incident.



. . . .



I also note that, from the facts presented to the [c]ourt, that regular police procedures were already being utilized by the officers conducting the investigation. . . . I note the officers' testimony as to their canvassing of the area, securing the premises [of] the restaurant[.]



The judge concluded the "combination" of these factors

demonstrated, by clear and convincing evidence, that police would

have inevitably discovered the surveillance video through normal

police procedures, and this video would have inevitably led police

to the gun in the garbage can.

Defendant challenges this reasoning, arguing his theoretical

refusal to show police the footage cannot establish probable cause

for a warrant. Defendant also raises factual challenges, asserting

the judge erred because there were no patrons in the restaurant

when police arrived. He further notes the Golden Krust did not

have outdoor cameras, and police had already obtained outside

footage "merely show[ing] a person with a weapon." Defendant

contends the State did not prove the investigation would have

resulted in police obtaining a search warrant, and inevitable





12 A-5468-14T1





discovery is inapplicable where police misconduct "proximately

causes" the discovery of incriminating evidence.

We reject these arguments. In applying the facts established

at the suppression hearing, we find the State proved by clear and

convincing evidence the three elements of the inevitable discovery

doctrine. First, as the trial judge noted, the detectives followed

normal procedures by canvassing the area for video cameras and

witnesses. See Sugar II, supra, 100 N.J. at 238. Detective

Padilla obtained footage from an outside security camera in this

manner, which partially depicted the incident in question.

Second, considering all of the surrounding circumstances,

canvassing the area for cameras and witnesses would have inevitably

led the detectives to the Golden Krust security footage. See

Ibid. The outside security video showed an individual come out

of a building and cause a crowd to disperse. Police would have

investigated the nearby buildings, leading them to the Golden

Krust.

Moreover, police would have discovered the footage and gun

by interviewing the witnesses. P.W.'s testimony suggests the

incident stemmed from the initial assault of her co-worker. Police

would have interviewed P.W. about this incident, leading them to

discover her knowledge of the surveillance system. Police also

would have interviewed R.S., who placed the gun in the trash can.





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Detective Gonzalez further stated he planned to travel to the

hospital to interview the victim about the shooting, which would

lead him to the Golden Krust.

Last, we find the State proved that "discovery of the evidence

through the use of such procedures would have occurred wholly

independently of the discovery of such evidence by unlawful means."

Ibid. The trial judge noted, had defendant refused to show police

the video, their suspicion would have led police as "part and

parcel of . . . normal investigative procedures" to apply for and

obtain a warrant. However, we find the record shows police had

probable cause to obtain a warrant based on the other aspects of

the investigation. Specifically, the outside video and witness

statements, especially the information regarding an assault inside

the restaurant, would have established probable cause for warrant

"independent[]" of the police illegality. Ibid.

Therefore, we conclude the State presented clear and

convincing evidence the police would have discovered the Golden

Krust surveillance video wholly independently of its discovery by

unlawful means. This footage would have inevitably led police to

discover the gun. Consequently, we find no basis to disturb the

trial judge's ruling. Because the trial judge did not err

regarding his findings and conclusions as to the application of





14 A-5468-14T1





the inevitable discovery doctrine, we decline to address the

State's alternate arguments.

II.

Defendant also urges us to remand this matter for an

evidentiary hearing and resentencing, alleging the trial judge

relied on an inaccurate criminal history report as the basis for

his sentence. After reviewing the record, we decline to reverse

on this basis.

Defendant's argument stems from an alleged error in the

State's presentence report (PSR). According to the PSR,

Massachusetts convicted defendant of "[t]rafficking cocaine" in

1991, resulting in a five-to-ten year custodial sentence.

Defendant, however, asserts Massachusetts acquitted him of this

offense. He provides several documents from Massachusetts to

support this claim, including a jury verdict sheet, the court

clerk's log, and a report from the Massachusetts Criminal History

Systems Board. These documents state defendant was found not

guilty of trafficking cocaine on December 18, 1991.

The judge addressed this discrepancy during sentencing,

noting he ordered the Probation Department to produce the current

PSR after he learned of this issue. The judge found this

information accurate, stating,

[A]t least pursuant to the information provided to me by the Probation Department,





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[defendant's charge] resulted in an imposition of a custodial sentence of five to ten years. Now that's open to dispute, but as far as I'm concerned that's what the record shows.



. . . .



If it turns out to be that those records are incorrect, so be it. There's plenty of other information. There's plenty of other arrests and convictions . . . that the [c]ourt will address at the appropriate time.



The judge reviewed defendant's criminal history during his

discussion of the aggravating and mitigating sentencing factors.

He noted defendant had sixteen known arrests and/or complaints

filed against him, resulting in one indictable conviction for

trafficking the cocaine, as well as eight miscellaneous disorderly

persons convictions, the latest occurring in September 2011,

resulting in a two-year probationary term, as well as a 180-day

sentence in the county jail.1

Based on this information, the judge found aggravating factor

three, N.J.S.A. 2C:44-1(a)(3) (risk defendant will reoffend). He

also found aggravating factor one, N.J.S.A. 2C:44-1(a)(1) (nature

and circumstances of the offense), noting defendant shot a

seventeen-year-old youth in the back of the neck.2 He found

1 As a result of this September 2011 conviction and sentence, defendant remained on probation at the time of the offenses under review.



2 Defendant's judgment of conviction does not list aggravating factor one, but the transcript shows the judge made this finding.





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aggravating factors six, N.J.S.A. 2C:44-1(a)(6) (prior criminal

record and seriousness of offense), and nine, N.J.S.A. 2C:44

1(a)(9) (need for deterrence). The judge further determined,

based on defendant's interview with the Probation Department, he

failed to show remorse or accept responsibility for his actions.

We review the trial judge's sentencing determination for an

abuse of discretion. State v. Blackmon, 202 N.J. 283, 297 (2010).

We ordinarily will not disturb the sentence imposed unless it

constitutes a clear error of judgment or "shocks the judicial

conscience." Ibid. (quoting State v. Roth, 95 N.J. 334, 363-65

(1984)). We are bound to affirm so long as the judge properly

identifies and balances the aggravating and mitigating factors,

and their existence is supported by sufficient credible evidence

in the record. State v. Cassady, 198 N.J. 165, 180-81 (2009).

The United States Supreme Court has addressed the issue of

inaccurate information at sentencing, holding that a criminal

sentence based on "assumptions concerning [the defendant's]

criminal record which [are] materially untrue" violates the right

to due process. Townsend v. Burke, 334 U.S. 736, 741, 68 S. Ct.

1252, 1255, 92 L. Ed. 1690, 1693 (1948). Other federal courts

have addressed this issue, vacating sentences where "the

challenged information is (1) false or unreliable, and (2)





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demonstrably made the basis for the sentence." Farrow v. United

States, 580 F.2d 1339, 1359 (9th Cir. 1978).

New Jersey courts have reached similar conclusions. In State

v. Pohlabel, 61 N.J. Super. 242 (App. Div. 1960), we reversed a

sentence where we found "a strong probability that the quantum of

[the defendant's] sentence was influenced by materially untrue

assumptions and statements concerning his criminal record." Id.

at 252 (emphasis in original). Our Supreme Court has similarly

noted, "[P]resentence reports may not be used in a manner which

is so unfair as to infringe on fundamental concepts of justice and

due process." State v. Wingler, 25 N.J. 161, 179 (1957) (citing

Townsend, supra, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690).

These cases suggest remand is appropriate when, but for the

alleged inaccuracy, the sentencing judge would have reached a

different result. Such is not the case here. The judge made

clear he believed the disputed conviction was essentially

irrelevant in light of defendant's other charges. The record

leaves little doubt the judge would have imposed the same sentence

with or without this conviction.