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State v. Smith

December 29, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNEDY SMITH, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Before Judges Baime, Brochin and Braithwaite.

The opinion of the court was delivered by: Baime, P.j.a.d.

Argued December 3, 1997

A Middlesex County grand jury returned an indictment charging defendant with first degree attempted murder (N.J.S.A. 2C:5-1; N.J.S.A. 2C:11-3a(1)), attempted aggravated sexual assault (N.J.S.A. 2C:5-1; N.J.S.A. 2C:14-2a(6)), second degree kidnapping (N.J.S.A. 2C:13-1b), and first degree robbery (N.J.S.A. 2C:15-1). Following the denial of his motion to suppress his confession, defendant entered an unconditional plea of guilty to attempted murder and first degree robbery and was sentenced to concurrent terms of twenty years with ten year parole disqualifiers. In addition to the custodial terms imposed, the Law Division ordered defendant to pay restitution of $54,681.96 as well as future medical bills of the victim, and assessed a Violent Crimes Compensation Board penalty of $200 and a Safe Neighborhoods Services Fund fine of $150. Pursuant to the terms of the plea agreement, the remaining counts were dismissed.

Defendant appeals, contending: (1) the Law Division erroneously denied his motion to suppress his confession, (2) the sentences imposed were excessive, and (3) the restitution order must be vacated because no hearing was conducted respecting his ability to pay. We affirm defendant's convictions and the custodial sentences imposed, but vacate the Safe Neighborhoods Services Fund fine and the restitution order. We remand the matter to the Law Division for a hearing to determine an amount of restitution consistent with defendant's ability to pay.

I.

The salient facts can be summarized as follows: In the evening hours of October 3, 1990, N.G. was walking home after attending a PTA meeting when she was accosted, compelled to accompany her assailant to a desolate area, and brutally attacked. The victim suffered life-threatening injuries, including fractures of the skull, vertebra, facial bones and nose. In the course of the vicious attack, the assailant attempted to rape the victim, and when his efforts proved unsuccessful, made off with her pocketbook.

The identity of the assailant remained undetected until December 30, 1990. On that date, Detective Charles Moe received a telephone call from an unidentified female who informed him that she was an employee of the Raritan Bay Medical Center in Perth Amboy (Raritan Hospital) and had learned of information concerning a crime. The anonymous caller related that she had overheard defendant, a psychiatric patient, admit to a member of the hospital medical staff he had assaulted a woman in Metuchen in October of 1990. After corroborating the fact that defendant was a patient, Detective Moe prepared a report containing a description of his conversation with the informer.

On January 2, 1991, Detective James Keane contacted Raritan Hospital and was informed by Sam David, a senior psychiatric social worker, that defendant was a patient. Detective Keane knew defendant, who had on occasion provided him with information concerning various criminal activities, and requested permission to speak to him. David indicated that the detective was free to interview defendant if defendant consented. Defendant consented to the interview, telling David that he considered Detective Keane "a friend." Later that day, Detective Keane and Officer Steven Wilczynski proceeded to the hospital, where they were escorted by David into a private room. After apprising defendant of his constitutional rights and obtaining a waiver, Detective Keane stated the purpose of his investigation. Defendant denied any involvement in the assault, noting that he was with his fiance in Georgia on the night the crime was committed. Defendant added that he had been admitted to a hospital in Georgia because he was suffering from mood swings and was experiencing behavioral problems. Perhaps tellingly, defendant inquired about the condition of the victim and whether she was able to remember the assault. However, defendant refused to answer any other questions.

On January 3, 1991, Detective Keane received a telephone call from David, who told him that defendant wished to speak to him. David then handed the telephone to defendant, who asked the detective to visit him so that they could converse alone. Detective Keane returned to the hospital where he obtained permission to speak to defendant from defendant's treating psychiatrist. The detective again apprised defendant of his constitutional rights. Detective Keane told defendant it was in his best interest to cooperate with the police and that if he provided assistance, Keane would ensure that he would "get help." The detective added that defendant would be charged with the crime whether or not he cooperated. Defendant admitted that he had lied the previous day, and that he was responsible for the assault. Moreover, defendant agreed to give a tape recorded statement. In the statement, defendant noted that he "felt guilty" about committing the crime and "wanted God to forgive him." Defendant's treating psychiatrist testified that he permitted Detective Keane to interview defendant because defendant had requested it and because his mental state was clear. The witness added he would not have allowed the interview to proceed if defendant appeared confused or incoherent. The physician noted that defendant was being treated with lithium and mellaril, but the dosages were low and would not affect a patient's judgment or competency. In fact, a psychiatric team had met on the morning of January 3 prior to defendant's interview with Detective Keane and had decided to discharge him because his condition was stable.

Dr. Irwin Perr, a psychiatrist, interviewed defendant following his arrest at the Middlesex County Jail, and performed a battery of tests. The witness noted that defendant had been hospitalized in Georgia, where he was "non-complacent, resistant and aggressive." The doctor indicated that defendant could not be easily intimidated, and that, with his personality type, was less likely than the average person to obey a command or be coerced. According to Dr. Perr, defendant had no mental disorder that would interfere with his decision-making ability. Dr. Perr agreed with defendant's treating psychiatrist that, although psychotropic drugs were being administered, they had no impact on the patient's judgment.

Defendant elected to testify at the motion hearing. We do not describe his testimony in detail because the Law Division clearly disbelieved his account. Suffice it to say, defendant claimed that his treating psychiatrist convinced him to confess, and that Detective Keane turned off the recording machine during various parts of the interview when he gave information unfavorable to the prosecutor's case.

The defense presented Dr. Robert Latimer, a psychiatrist. He testified that defendant suffered from a borderline personality disorder that made him particularly vulnerable to the suggestions of his treating psychiatrist. The witness also claimed that lithium and mellaril had the capacity to lead a patient "down the primrose path." Dr. Latimer added, however, that even absent the administration of psychotropic drugs, defendant could not have voluntarily confessed. The witness observed that "any mature, knowledgeable person" would have requested a lawyer under the circumstances confronting defendant.

The Law Division issued a comprehensive written opinion in which it concluded that defendant's confession was admissible. The court first found that defendant was not in police custody when the inculpatory statement was made. Noting that defendant had voluntarily committed himself to the hospital and was not led to believe he was under arrest, the court determined that the coercive atmosphere inherent in custodial interrogation was not ...


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