Opinion
DOCKET NO. A-0356-15T3
05-10-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DONALD PETERSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 12-07-0564. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, on the brief). PER CURIAM
Defendant Donald Peterson appeals from an August 18, 2015 judgment of conviction based on his guilty plea to two counts in an indictment charging second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b), and fourth-degree certain persons not to possess a dangerous knife, N.J.S.A. 2C:39-7(a). Defendant's plea was entered following this court's reversal of the Law Division's order suppressing the seized firearm. State v. Peterson, No. A-2161-13T2 (App. Div. Dec. 12, 2014) (slip op. at 2). Defendant did not challenge the order by requesting reconsideration or seeking certification. He was sentenced to a five-year term of imprisonment with a five-year period of parole ineligibility for count one, and a concurrent eighteen-month period of imprisonment for count two.
On appeal, defendant argues:
THE DISCOVERY AND SEIZURE OF THE RIFLE IN MR. PETERSON'S HOME DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO BE FREE OF UNREASONABLE SEARCHES AND SEIZURES.The issue has conclusively been determined, precluding what amounts to a second review. Accordingly, this appeal must be dismissed.
We incorporate by reference the relevant facts surrounding the crimes charged, the Law Division's order granting defendant's motion to suppress a rifle seized from his home, and the State's appeal of that order, which are set forth in our prior opinion. Peterson, supra, slip op. 2-6. In reversing the order suppressing the seized firearm, this court concluded: (1) the warrant satisfied the particularity requirement; and (2) the seizure was appropriate pursuant to the inevitable discovery doctrine. Id. at 11, 15.
On appeal, following entry of his guilty plea and conviction, defendant again seeks to argue the discovery and seizure of the rifle violated his constitutional rights. This is the identical legal issue posed in the State's interlocutory appeal. We may not again consider the issues previously decided and finalized in our interlocutory order, which remains the law of the case. State v. Myers, 239 N.J. Super. 158, 164 (App. Div.) (declining to re-entertain defendant's appeal from the denial of his motion to dismiss for lack of a speedy trial where it was already considered by the Appellate Division on the merits on interlocutory review), certif. denied, 127 N.J. 323 (1990); see also State v. Reldan, 100 N.J. 187, 203-07 (1985); Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 1:36-3 (2016) ("Clearly, when an appellate court has decided an issue, its decision, even if not final in terms of the controversy, establishes the law of the case.").
"The law-of-the-case doctrine 'is a non-binding rule intended to prevent relitigation of a previously resolved issue' in the same case." State v. K.P.S., 221 N.J. 266, 276 (2015) (quoting Lombardi v. Masso, 207 N.J. 517, 538 (2011)). "[T]he law of the case . . . merely expresses the practice of the courts generally to refuse to reopen what has been decided." Id. at 277 (second alteration in original) (quoting Devilla v. Schriver, 245 F.3d 192, 197 (2d Cir. 2001)). "[T]he 'law of the case' rule ordinarily precludes a court from re-examining an issue previously decided by the same court, or a higher appellate court, in the same case." Reldan, supra, 100 N.J. at 208 (O'Hern, J., dissenting); see also Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391, 75 L. Ed. 2d 318, 333 (1983) ("[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.").
In K.P.S., the Supreme Court rejected application of the law-of-the-case doctrine. K.P.S., supra, 221 N.J. at 279. However, the specific question reviewed was whether the doctrine applied to bar the defendant's appeal of an issue decided by a different appellate panel that reviewed in a different case the question raised in co-defendant's appeal. Id. at 277. Unlike the facts in K.P.S., the circumstance presented here regards a second challenge to issues previously reviewed and decided in the same case. Defendant's appeal attacks the constitutionality of the discovery and seizure of the rifle. This was the exact legal question reviewed in our unreversed decision.
[O]nce we grant leave to appeal and decide a case[,] the decision reached is a
determination on the merits. Consequently a disposition on the merits when leave to appeal is granted should not be regarded by counsel or the parties as tentative and subject to more leisurely review at a later date.
[State v. Stewart, 196 N.J. Super. 138, 144 (App. Div.), certif. denied, 99 N.J. 212 (1984).]
Defendant's suggestion that this appeal is designed "to preserve the issue for further litigation" is unsustainable. Defendant's due process rights were fully protected as he received a full and fair review of this issue in the interlocutory appeal. State v. McKinney, 223 N.J. 475, 494 (2015) (citing K.P.S., supra, 221 N.J. at 279-80). He chose not to seek further review of our order.
Accordingly, defendant's appeal is dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION