On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-1871-97-001.
Before Judges Conley, Carchman and Parrillo.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following an unsuccessful motion to suppress his confession and then a jury trial, defendant Jshik Jang, a South Korean national and illegal alien, was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), (2); first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3a (1), (2); first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of first-degree felony murder, N.J.S.A. 2C:11-3a(3); second- degree armed burglary, N.J.S.A. 2C:18-2; two counts of third- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, - 4d; and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4a. He was sentenced to an aggregate term of life in prison with a forty-year period of parole ineligibility. The dominant issue on this appeal is whether a conviction may be overturned for failure of the State to comply with the provisions of the Vienna Convention on Consular Relations and Optional Protocol on Disputes, Apr. 24, 1963, art. 36, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261, (VCCR). We conclude that absent a showing of prejudice, a failure to comply with the provisions of the VCCR will not result in a reversal of a conviction.
We address the issue in the context of these facts. In the late evening of January 4, 1995, defendant went to the home of Michael Suh with Jin Sig Choi and another individual identified only as "Mr. Lee" for the purpose of "get[ting] some money" from Suh, a successful businessman known to possess large sums of cash. When Suh pulled into his garage at approximately 11:30 p.m., he was confronted by a man wearing a ski mask and standing next to Suh's wife's car. In an effort to warn his wife, who with her mother and two children was in the home, Suh sounded his horn. Suh, through his rear-view mirror, then observed another masked individual walking towards the driver's window. This second masked man aimed a gun at Suh and pulled the trigger twice, but the gun did not fire. Suh shifted his car into reverse, striking the garage door, and proceeded back down the driveway; the gunman followed him. Mrs. Suh entered the garage from the house and was tackled by the other masked man, who then stabbed her eleven times, killing her.
None of the perpetrators were apprehended at the scene, but investigators recovered the gun used in the robbery near the Suh home. The bloody knife used to stab Mrs. Suh was recovered nearby as well.
Defendant was implicated in the crime as a result of a trace of the serial number on the recovered gun that revealed a chain of sales eventually ending with a sale of the weapon to Choi and defendant. When the police also determined that Choi owned a white and silver Chevrolet Blazer, the vehicle observed at the scene of the murder, they contacted the television show "America's Most Wanted" to conduct a profile of the case. The airing of that show resulted in a call from Tacoma, Washington advising of defendant's presence there, and eventually led to the surrender of defendant in Missoula, Montana.
Detective Sergeant Richard Cary of the Paramus Police Department, Detective Mark Bendul and Lieutenant Joseph Hornyak of the Bergen County Prosecutor's Office traveled to Tacoma, Washington and then to Montana where they interviewed defendant with U.S. Immigration and Naturalization Service (INS) Special Agent Jake Stavlo in the Jefferson County Jail in Bolder, Montana. The INS's involvement was prompted by the issuance of a complaint and arrest warrant charging defendant as an illegal alien in possession of a firearm. Prior to this interview, defendant was informed that the South Korean Consulate would be advised of his arrest and custody the next day, and Special Agent Stavlo did contact the South Korean Consulate the following day. Defendant was also advised of his Miranda *fn1 rights in both English and Korean. He read the Miranda card in Korean, wrote "yes" next to each of the Miranda rights, and signed his name in English in the waiver portion of the Miranda form. Special Agent Stavlo questioned defendant in English, and Detective Bendul, a Korean by birth, interpreted the questions into Korean.
Defendant minimized his involvement in the murder. He admitted that he bought the gun as well as the knife used to kill Mrs. Suh, and had purchased and placed in Choi's Chevrolet Blazer the ski masks used in the burglary, but he claimed that he did not know about the burglary and stayed in the back seat of the vehicle the entire time as he had a "bad back." He denied driving the Chevrolet Blazer, and asserted that Choi operated the vehicle, as defendant remained in the back seat. Notably, defendant had no reply to the investigators' perhaps rhetorical question: "If you had a bad back and you couldn't participate in this attempted robbery, why would Choi and Lee even think about bringing you there?" Later in the morning of May 4, 1996, defendant was transported to the INS office in Helena, Montana to undergo processing for the federal immigration charge, and Special Agent Stavlo and Detective Bendul again met with defendant, informing him of his Miranda rights for a second time. Defendant subsequently made a formal statement while at the INS office, terminating the interview by stating: "I don't want to talk anymore. Take me to jail."
Defendant moved to suppress his confession claiming that it was coerced. Following a Miranda hearing, the judge rejected defendant's claim and found:
[D]efendant freely and voluntarily waived his right to counsel. He freely and voluntarily gave statements to the police. He knew what he was doing. He wanted to make the statements. He voluntarily turned himself in to the police. He was clearly informed of his rights, of his Miranda warnings, on more than one occasion, and therefore, the motion to dismiss for failure to give appropriate Miranda warnings is dismissed.
Defendant also claimed that his rights under the VCCR were violated. The judge rejected that claim, as well, and following a trial, defendant was ...