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State v. Barowski

Decided: July 5, 1988.


On appeal from the Superior Court, Law Division, Mercer County.

King, Gaulkin and D'Annunzio. The opinion of the court was delivered by Gaulkin, J.A.D.


Following a pretrial Miranda*fn1 hearing at which his statement was held admissible at trial, defendant pleaded guilty to second-degree official misconduct (N.J.S.A. 2C:30-2 a). The Law Division judge invoked N.J.S.A. 2C:44-1 f(2) and sentenced defendant to a three-year custodial term. Defendant now appeals from the pretrial evidentiary ruling. See R. 3:9-3(f). He has been granted bail pending appeal.

The operative facts are largely undisputed. Defendant was an East Windsor Township police officer. He had lived with his girlfriend, Jaye Pederson, at the home of Pederson's mother, Pearl Elkins. After she had evicted defendant and Pederson, Elkins contacted the East Windsor Township Police Department and informed Sergeant Vukson that she had found some wrappers in her home which she suspected were used to package narcotics. A consent search of Elkins' home yielded approximately 300 pill wrappers with traces of methaqualone and, the police believed, one or two methaqualone pills (quaaludes).

An officer noted the similarity between the wrappers found at Elkins' home and evidence which had been seized in 1977 and stored in the police evidence locker. Further investigation disclosed that the evidence locker was approximately 9000 quaaludes short of the 38,000 to 39,000 pills which were supposed to be there. The green plastic bag containing the quaaludes, moreover, had a hole in it.

Wrappers from the Elkins house and from the evidence locker were submitted to the State Police laboratory, which confirmed that they matched. Vukson, with apparent approval from the Police Chief Michnisky, decided to arrest defendant. Sergeant Van Hise called defendant at his parents' home, where he was then living with Pederson, and asked him to come to the station to report to work. Defendant arrived at approximately 4:10 p.m. and went into Van Hise's office, where Van

Hise, Vukson and Detective Rossi were waiting. Vukson asked defendant to turn in his gun, told him he was under arrest and advised him of his Miranda rights. Defendant signed a Uniform Mercer County Rights Form; Van Hise also read aloud the Miranda warnings from the form. Defendant signed the form in the space provided immediately after the section discussing waiver of rights. Defendant stated that he had nothing to say at that time.

After taking defendant for fingerprinting and mug shots, Van Hise took him to the security area. Normal procedure was to place an arrested person in a cell, but Van Hise acted otherwise because he and defendant had been close friends. While in the matron's office, Van Hise and defendant sat and talked of old times. Van Hise testified that he did not demand that defendant give a statement or make any promises to defendant to obtain a statement. He admitted, however, that both he and Michnisky separately urged defendant that he should or had to help himself by giving a statement. Michnisky confirmed that testimony and acknowledged that because defendant was sitting in the only chair at the desk, he "was down on one knee talking across the desk to [defendant]." Rossi acknowledged as well that he had urged defendant to help himself. Defendant, however, again chose not to make any statement.

At approximately 5 or 6 p.m., Pederson was brought to headquarters and given her Miranda warnings. She was then turned over to Michnisky and Lieutenant Heyesey of the Prosecutor's office. They explained to Pederson the charges against defendant and asked her to give a statement. According to Heyesey, they made no promises to Pederson, but did tell her that they might be able to recommend that defendant be released on his own recognizance (ROR) depending on the substance of her statement. Pederson waived her right to remain silent and, between 7:25 and 9:22 p.m., gave a statement which implicated herself, defendant and another police officer from a different municipality.

When Pederson's statement was completed, Heyesey went to see defendant. In response to defendant's inquiry, Heyesey said he would ask Michnisky if defendant could meet with Pederson. Heyesey also told defendant that he would attempt to have him released on his own recognizance because he did not want defendant exposed to the special dangers which face an incarcerated police officer. Defendant and Pederson were then allowed 10 to 15 minutes for a private meeting. At its conclusion, defendant agreed to give a statement. Miranda warnings were again administered and, this time, were waived. The statement was taken from approximately 10:12 to 11:20 p.m.

Meanwhile, at approximately 6 or 7 p.m., Municipal Court Judge Doig met with Michnisky and Heyesey to discuss defendant's arraignment. Doig told the officers that he would consider their recommendations in setting bail but that he would release defendant ROR if they could not assure his safety in jail. The officers said they would see what they could do. At the Miranda hearing, Doig testified that he had no recollection of any particular amount of bail being discussed, but that his impression was the police were suggesting a substantial bail or some bail that defendant could not meet. Doig maintained contact with the police during the evening. After defendant had given his statement, Doig ...

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