On appeal from the Superior Court, Law Division, Cumberland County.
Havey, Stern and Brochin. The opinion of the court was delivered by Stern, J.A.D. Havey, J.A.D., Concurring.
[261 NJSuper Page 152] After defendant's "motion to suppress" his confession was denied, he was tried without a jury and found guilty of conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b(1); aggravated assault, N.J.S.A. 2C:12-1b(1); possession of a handgun with a purpose of using it unlawfully against the person of another, N.J.S.A. 2C:39-4a; possession of a knife with a purpose of using it unlawfully against another, N.J.S.A.
2C:39-4d; and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Defendant was sentenced to seven years in the custody of the Commissioner of Corrections for aggravated assault, N.J.S.A. 2C:12-1b(1), and to a consecutive seven year term with three years of parole ineligibility for the "Graves Act" possession for unlawful purpose offense, N.J.S.A. 2C:39-4a. Concurrent sentences were imposed on the other convictions.
On this appeal defendant argues, among other things, that:
Point I -- Defendant's convictions must be reversed because his confession, which resulted from the assistant prosecutor's impermissible plea bargaining with an uncounselled defendant and his promise of specific sentences for defendant and his brother, was involuntary.
We conclude that, as a matter of State law, any statement given in exchange for a prosecutor's promise of sentence during uncounselled plea negotiations on an indictable offense is inadmissible. Hence, we reverse the judgment of conviction and remand for a new trial.
The evidence at trial revealed that defendant and his brother assaulted Roland Lee, who had a romantic relationship with defendant's ex-girlfriend. Defendant stabbed the victim three times. In order to understand the principal issue before us, however, we must detail only the essential facts developed at the motion to suppress (more properly considered an Evid.R. 8(3) hearing, State v. Robinson, 224 N.J. Super. 495, 540 A.2d 1313 (App.Div.1988)).
After defendant's arrest, he gave a taped confession in which he admitted stabbing Lee. Defendant stated that when he went home after the first confrontation with Lee, he obtained the knife used in the stabbing, as well as a .38 caliber handgun. The gun was not observed by the victim and was never found by the police. Defendant also confessed to an unrelated series of car thefts and armed robberies.
Detective Anthony Crokus, the arresting officer, testified that at headquarters defendant was read and waived his rights
under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966), but was initially reluctant to give any information necessary to process the arrest. However, at some point defendant asked Crokus if he could make a deal to help his brother. Crokus relayed defendant's inquiry to Detective Everingham, who in turn called the First Assistant Cumberland County Prosecutor.
The prosecutor arrived at headquarters and commenced plea Discussions with defendant concerning the stabbing and weapons possession charges, as well as the unrelated crimes. The prosecutor promised defendant a package deal of "20 years, must do 7 years without parole" if defendant "cooperated truthfully." He also promised defendant that his brother would receive the minimum mandatory of three years under the "Graves Act." After the Miranda rights were readministered, defendant confessed to the crimes after the prosecutor left.
In his testimony the prosecutor acknowledged that his purpose in going to headquarters was "to go down there and cut a deal with [defendant] at that point." The prosecutor testified:
The agreement was that if he cooperated truthfully, and I explained to him that truthfully meant that he wouldn't implicate anybody that wasn't involved in the crime, that he wouldn't take out or exculpate someone who was involved, and that he didn't, and that he would tell the actual roles of the players in the crimes, that as long as he wasn't involved in a murder, for every crime that he told us about truthfully, he would get 1 sentence; in other words, for the armed robbery, he would receive 20 years, must do 7 years without parole, and that for every other additional crime that he was involved in, that he would receive a concurrent sentence.
I also told him, I explained to him what the Graves Act was and I explained to him when you commit a crime with a gun or your accomplice is involved in using a gun, that you know about that, your sentence has to include at least a third without parole. (emphasis added).
The prosecutor also testified that defendant told him "if it wasn't for me, my brother wouldn't have been involved [in the stabbing]," and "I'm more concerned about the amount of time my brother has to do than what I have to do." In response, the prosecutor told defendant:
Even if you got [your brother] involved in [the aggravated assault], as long as he knew there was a gun involved, he'd be subject to the Graves Act and would have to get at least 3 years without parole.
The prosecutor also testified:
I said that if his brother cooperated fully, the same conditions: that I would give his brother the minimum allowed by law, which was 3 years without parole, and I also told him that if the police or I suspected that he wasn't being fully candid, that he would agree to take a polygraph test, and I said that he would of course -- this would be in return after cooperation for a guilty plea to the various crimes involved. (emphasis added).
According to defendant, the First Assistant Prosecutor was called to police headquarters when defendant would not cooperate, and advised him "not to get [his] own attorney"; said that "he would appoint [defendant] a public defender"; that "he had control over the Judge and counsel"; and threatened that "he would see to it" that his brother, a teacher, "never taught in the State of New Jersey." Defendant further testified that the prosecutor never explained or answered his questions regarding what an attorney would do for him, but said that, between defendant and his brother, "he had to get 10 years out of us"; that "I would serve 7 years and my brother would serve 3"; and that "he would see to it that we were kept together the entire time that both of us were serving time." According to defendant, the prosecutor also made clear that, if defendant did not cooperate, "he would see to it that me and my brother each serve a minimum of 25 years each before we were eligible for parole" and that "the Judge would agree because he was a prosecutor." After speaking with the prosecutor for "a minimum of an hour," he decided to give a statement to the detectives because "my future was in his hands . . . and my brother's, too."*fn1
In finding the statement admissible, the motion Judge rejected defendant's argument that the confession was involuntary because it was induced by ...