On appeal from Superior Court, Law Division, Passaic County.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Petrella, J.A.D.
Following a plea agreement defendant Gualberto Morales entered retraxit pleas of guilty on March 6, 1980 to charges of murder (N.J.S.A. 2C:11-3)*fn1 and aggravated sexual assault (N.J.S.A. 2C:14-2a(1)) on an eight-year-old boy. He now appeals the sentence and the rulings on certain pretrial motions made before the pleas and decided adversely to his contentions. As part of the plea agreement a charge of kidnapping (N.J.S.A. 2C:13-1b(1)) was dismissed, and the State reserved the right to make a recommendation as to sentence. The State also was to recommend that the sentence on the aggravated sexual assault charge be concurrent with that on the murder charge.
While the presentence investigation was being undertaken defendant made allegations to the probation officer charged with responsibility to prepare the presentence report that he did not commit the crimes and had confessed only because he was beaten by the police. Because the voluntariness of defendant's pleas was placed in issue, the trial judge held additional hearings prior to sentencing and determined that there was no merit in defendant's claim of police brutality and that his statements were voluntary. The judge refused to set aside the defendant's pleas. There is no direct request on this appeal to vacate these pleas.
Defendant was sentenced on June 9, 1980 to life imprisonment on the murder charge, with a 25-year period of parole ineligibility, and to a concurrent term of 15 years for aggravated sexual assault.
Defendant appeals, raising the following issues:
1) The trial court erred in denying defense counsel's motion to "suppress" because the various statements obtained from defendant were the direct result of an unlawful detention.
a) At the time defendant was placed in custody, the police did not possess sufficient probable cause to arrest defendant.
b) The subsequent oral and written statements made by defendant to the police and to the news media were tainted by the illegal detention, mandating their exclusion from trial as being the "fruit of the poisonous tree."
2) Since the court imposed an extended term of life imprisonment without considering the relevant aggravating and mitigating circumstances, defendant is entitled to a resentencing.
The essential facts are that on October 15, 1979 the police received a report that an eight-year-old boy was missing in Paterson. The child's mother suggested that the police question defendant, who was the last person seen with her son. Defendant, then age 23, was questioned that day and he told the police officer that he had not seen the boy. However, at about 8:25 p.m. the next day defendant voluntarily went to police headquarters because he heard the police were looking for him, and he informed the police he had last seen the boy on Main Street at around 6:30 p.m. the previous evening when the child was on his way home.
On October 26 a police officer was told by a reliable informant that he had overheard defendant's brother tell another individual that his brother had killed the child. On November 1 detectives investigating the disappearance decided to again speak with defendant, and with the help of defendant's brother eventually found him working in a garage. After defendant asked that they speak at a different location, he agreed to go with them to the Detective Bureau. At the bureau he repeated the story that he gave on October 16, but added that ...