On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 05-02-0228.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Seltzer.
On February 10, 2005, a Middlesex County Grand Jury returned Indictment No. 05-02-00226 and Indictment No. 05-02-00228 against defendant, Eric Torres. Indictment No. 05-02- 00226 charged defendant with third-degree burglary at 306 Washington Street, Perth Amboy, N.J.S.A. 2C:18-2 (Count One), and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (Count Two). Indictment No. 05-02-00228 charged defendant with third-degree burglary at 212 Broad Street, Perth Amboy, N.J.S.A. 2C:18-2 (Count One), and fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (Count Two).
A Miranda*fn1 hearing was held on June 7 and 8, 2005, and defendant's motion to exclude statements was denied. The two indictments were consolidated for trial. On August 24, 2005, a jury found defendant not guilty of the charges in Indictment No. 05-02-00226, but guilty on both counts in Indictment No. 05-02-00228. On October 21, 2005, the State's motion for an extended term was granted and the trial judge imposed an eight-year term on the burglary conviction and a concurrent thirty-day term on the theft conviction. Defendant appeals and we affirm the judgment of conviction but remand for re-sentencing.
On December 21, 2004, pursuant to a tip received from an informant concerning an investigation of burglaries in Perth Amboy, including one at the home of Luis Flores at 306 Washington Street, Perth Amboy Police Detectives Steven Killane and Kevin Kenny went to defendant's place of employment. They asked defendant to go to police headquarters to answer questions about several burglaries. Killane testified that he "explained to [defendant] it was voluntar[y] and that he didn't have to come if he didn't wish, but he did." According to Killane, defendant was not under arrest, he was not handcuffed, and he was advised that "[h]e was free to leave whenever he wanted to."
At headquarters, defendant was escorted to an interview room. Detective Killane described the interview room as an eight by ten office with two doors, one leading to the hallway, and the other leading to the detective bureau. Both doors were closed but unlocked at the time. Killane advised defendant of his Miranda warnings at approximately 1:50 p.m. Killane read from a standard Miranda form, asking defendant "after each individual warning whether or not [he understood] that warning." After each, defendant "indicated yes, that he did understand that." Defendant then signed the form, which was also signed and dated by Detective Killane.
Killane testified that, after defendant waived his Miranda rights, he conducted a pre-interview, asking defendant about his involvement in any burglaries. Killane discussed defendant's use of heroin and told defendant that he "knew that committing burglaries was a way to get money to buy heroin." Defendant denied his involvement in any burglaries. Killane testified that during the pre-interview, defendant did not appear to be under the influence of any alcoholic beverage or drugs. The pre-interview lasted approximately one hour, after which Killane "offered a computer voice stress analyzer examination to prove the fact that [defendant had] no link to any burglaries."
At a Miranda hearing, Detective Killane described the computer voice stress analyzer (CVSA) as a truth verification instrument. Our body does certain things in the parasympathetic nervous system that causes a [change in the] modulation in our voice when we are deceptive, this instrument records . . . answers to questions and it charts patterns of the modulation in your voice at a calm state showing the differences between non stress answers and stressed answers, showing deception and non deception.
Killane explained that he attended training and was certified as a CVSA examiner by the National Institute on Truth Verification. The CVSA examination consisted of a pre-interview, the actual testing, and a post-interview. Before the examination, Killane gave defendant a consent form, which defendant read and signed at approximately 3:15 p.m. Killane testified that "[b]uilt into that standard form is Miranda, so for a second time within a two hour period [defendant] was Mirandized." Killane asked defendant a series of nine questions. "[F]ive questions were irrelevant, they were easy questions to answer truthfully. Two questions were control questions in which [Killane asked defendant] to actually lie to [him], to pattern a deceptive answer; and then there were two relevant questions asked of [defendant]."
At the completion of the examination, Killane downloaded the charts and emailed them to the 2200 examiners across the country for a second opinion or "code call." Within approximately ten minutes, Killane received two code calls, which concurred with his reading of the charts that the results indicated deception. Killane confronted defendant with the results of the examination and "[w]ith that [defendant] confessed to the burglary on 306 Washington Street." Defendant told Killane he knew the guy owed him money. He went to his house. He wasn't there so he went around back and he entered, went right into his bedroom which he knew was the front and he took a laptop computer and a digital camera and that he sold it to a guy named Mex on Smith Street.
Defendant's recorded statement was played for the jury at trial.
Defendant was given a McDonald's meal and he told Killane that he had also committed a burglary recently on Broad Street, although he could not remember the exact location. Killane could not verify that any burglaries had been reported in that area, so, at approximately 5:15 p.m., he and Lieutenant Teranova took defendant to Broad Street where defendant indicated 212 Broad Street as the residence he burglarized. According to Killane, defendant stated that he broke into the home on the morning of December 20 and "[h]e said he went in. ...