On appeal from the Superior Court, Law Division, Passaic County.
Seidman, Michels and Devine. The opinion of the court was delivered by Devine, J.A.D.
On July 6, 1977, at about 1:30 p.m., Mrs. Alice Sauers while returning from shopping observed a young black male near her driveway. Shortly thereafter the same man entered her kitchen armed with a barbecue fork. He choked her, knocked her to the floor, gagged her with paper napkins and had her lie prone on the floor with his foot on her back.
After demanding money the assailant took her wedding rings, cash from her pocketbook and her car keys. He escaped in her automobile, a 1973 blue Pontiac bearing license plate 2 PCE, registered in the name of Charles Sauer.
On July 13, 1977, at about 1:16 a.m., Sergeant Fred Hohorst of the Bergen County Police, while on patrol, noticed a vehicle directly ahead of him as he was approaching a red traffic light. He observed the 2 PCE license plate and the four young black male occupants. When the light changed he pulled the vehicle over, and it stopped in a parking lot.
The driver, defendant Frederick Mann, left the vehicle and provided the officer with his driver's license. In response to the officer's questions defendant replied that he had borrowed the vehicle from "Charles, from Clifton." When asked why the radio was ripped out of the dashboard defendant explained that he had received the car in exactly that condition. The officer then radioed police headquarters and ascertained by way of a National Crime Information Center check that the Pontiac had been reported stolen. Defendant was then placed under arrest.
On July 19, 1977 Mrs. Sauers identified defendant at a line-up, and subsequently identified him at trial as the man who robbed her.
An indictment was entered against defendant charging him with (1) entering with intent to rob, contrary to N.J.S.A. 2A:94-1; (2) robbery, contrary to N.J.S.A. 2A:141-1; (3) robbery while armed with a barbecue fork, contrary to N.J.S.A. 2A:151-5; (4) larceny of an automobile, contrary to N.J.S.A. 2A:119-2, and (5) receiving stolen property, contrary to N.J.S.A. 2A:139-3.
Defendant was tried to a jury. At the conclusion of the State's case the trial judge granted defendant's motion to merge count 4 into count 2. Defendant was found guilty on counts 1, 2 and 3, and acquitted on count 5.
Defendant was sentenced to a minimum of seven years and a maximum of ten years on count 2. On count 3 he received a two to three-year term consecutive to count 2. Count 1 was made concurrent to counts 2 and 3 and carried a one to two-year term. The 9 to 13-year aggregate term was made consecutive to any sentence for parole violation.
Initially, defendant contends that the trial judges erred in concluding that the rule in Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), was inapplicable to the on-sight interrogation by the police officer. He argues that a "random traffic stop," insulated from the Miranda purview by State v. Macuk , 57 N.J. 1 (1970), was not involved. He asserts that, to the contrary, the stopping of the vehicle by the police officer was motivated by a suspicion that it was stolen, and defendant's freedom of action was curtailed from the moment he obeyed the officer's instruction. Accordingly, the questioning of defendant at the scene constituted a "custodial interrogation."
In order to identify the precise interrogation involved we have extracted a portion of the record. Sergeant Hohorst testified:
"Q. Did you ever determine who was the driver of that automobile?
A. After I pulled into the parking lot, I exited from the vehicle and walked over to the car and the driver of the vehicle stepped out of the vehicle and he handed me a driver's license in the name of Frederick Mann, and he also told me that it was not his car, that his car had been stolen and he handed me a Xerox copy of a police report that indicated a car reported ...