[IVY]

NJ: Monroe Man's Marijuana-Growing Conviction Overturned

--------------------------------------------------------------------------------

Monroe Man's Marijuana-Growing Conviction Overturned
Tim Zatzariny Jr. | Courier-Post Online | 05/24/2005

[Trenton] A state Appellate Court panel has overturned the 2003 conviction of a Monroe man who pleaded guilty to operating a marijuana production facility out of his home.

In a 65-page decision released Monday, a three-judge panel ordered a new evidence hearing for Keith R. Domicz, 30.

A lower court judge erred by failing to recognize that a warrantless thermal-imaging scan of Domicz's home and a warrantless review of his electric-use records were illegal and may have tainted a subsequent physical search of his home, the panel found. The state contends that search was consensual; Domicz says he did not give his permission.

The New Jersey State Police's Marijuana Eradication Unit began investigating Domicz in 2000 after receiving information that he had purchased plant-growth equipment, according to the court record.

Detective William Peacock, the unit's lead investigator, subpoenaed records from Domicz's power company and conducted the thermal imaging scan, both of which found nothing unusual about the property. Peacock visited Domicz's home on July 27, 2000, along with four other officers.

What happened after the officers entered Domicz's home, in the Williamstown section of the township, is in dispute.

The state contends Domicz acknowledged he had 40 marijuana plants in his basement. A subsequent search determined he had more than 100 marijuana plants growing in various parts of his home, as well as numerous plastic bags containing processed marijuana and a plastic bag containing methamphetamine.

Domicz signed a consent form for the search, according to the state. But Domicz contends one of the officers told him he had a search warrant and that he wasn't asked to sign the consent form until an hour after the officers entered his home. Domicz said he was not permitted to read the form before signing it.

At an evidence suppression hearing, Superior Court Judge John Tomasello refused to hear the testimony of a polygraph expert who would have testified that Domicz passed a lie-detector test during which he denied giving consent for the search.

Tomasello erred by not considering the expert's testimony, which the judge called "a waste of time," the appellate judges found.

After Tomasello denied his request to suppress the evidence found during the search, Domicz pleaded guilty to maintaining or operating a controlled dangerous substance production facility, a first-degree offense. He was sentenced to 10 years in state prison with a three-year parole ineligibility. Domicz is serving his sentence at Southern State Correctional Facility in Maurice River, Cumberland County.

The state Division of Criminal Justice, which prosecuted the case, is "extremely distressed" over the decision, which it contends will impinge upon law enforcement's right to conduct investigations, spokesman John Hagerty said late Monday. The agency plans to appeal to the state Supreme Court.

"We disagree with the Appellate Division's logic on search and seizure," he said. "We believe we are on solid ground and this is a solid case well investigated by state and local police."

The appellate panel ordered that the case be returned to a judge other than Tomasello because it found he is unlikely to change his determination on the evidence.
__________________