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State ex rel A.V.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 24, 2008

STATE OF NEW JERSEY IN THE INTEREST OF A.V., JUVENILE-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-1128-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 1, 2008

Before Judges Fuentes and Chambers.

Defendant A.V., a juvenile, was adjudicated delinquent for offenses that, if committed by an adult, would have constituted second degree robbery, N.J.S.A. 2C:15-1, (count one); fourth degree unlawful possession of a weapon (a mace canister), N.J.S.A. 2C:39-5(d), (count two); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), (count three); simple assault, N.J.S.A. 2C:12-1(a), (count four); and conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; (count five). He was sentenced to a one year term of probation and ninety hours of community service.

The charges arise out of a robbery that took place on October 14, 2006, when the victim was accosted by a group of African-American youths as he was walking down the street. The victim testified that one youth held him while another, wearing a black jacket and white bandanna, went into his pockets and took his cell phone, which he valued at $300, a Playstation Portable (PSP), valued at $200, and thirty dollars in cash. As the group of youths then continued to walk down the street, the victim followed them. Two youths,*fn1 including the youth with the black coat and white bandanna, came back and sprayed the victim with mace and punched him. The youths then headed in the direction of a nearby mall.

The police were summoned and within ten to fifteen minutes, they found a group of African-American youths at the mall, including defendant, who was wearing a black jacket. The police found a white bandanna and a canister of mace in defendant's pockets. The arresting officer testified that when he asked defendant where he got the mace, after a pause defendant responded. The officer first said that defendant said "yeah, I was there but I did not do anything." Then in response to the prosecutor's prompting, the officer testified that defendant said "I did not punch the victim." The officer then advised defendant of his rights and arrested him.

The officer testified that most of the males in the group were wearing black jackets similar to defendant's, but defendant was the only one with a white bandanna. The victim was unable to identify any of these youths as participants. At trial, the victim identified defendant's white bandanna and black jacket as similar to the one worn by one of the participants.

The defendant testified that he had been part of a group of friends heading toward the mall that evening, and that he and two others separated from the group. When they met up again, he learned that the victim had been robbed. He also stated that one of the group, Rasheem, had the PSP, but that Rasheem was not with them when they were stopped by the police. Defendant also claimed that the jacket he was wearing he had borrowed from a friend because he was cold. He acknowledged that the white bandanna was his.

The trial judge held for the State and adjudicated defendant a delinquent. Defendant now appeals, raising the following points:

POINT I

THE PROSECUTOR'S CROSS-EXAMINATION OF THE JUVENILE REGARDING HIS POST-ARREST SILENCE VIOLATED BOTH THE FIFTH AMENDMENT AND NEW JERSEY LAW, THEREBY DEPRIVING HIM OF A FAIR TRIAL. (Not Raised Below)

POINT II

THE JUVENILE'S SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WAS DENIED DUE TO TRIAL COUNSEL'S FAILURE TO ASSERT HIS CONSTITUTIONAL RIGHTS. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947), Art. I, par [sic]

A. Should The Court Rule That The Prosecutor's Cross-examination Regarding The Juvenile's Post-arrest Silence Did Not Rise To The Level Of Plain Error, Counsel's Failure to Object To That Evidence Constituted Ineffective Assistance of Counsel. (Not Raised Below)

B. Trial Counsel's Failure to File A Timely Motion To Suppress Was Ineffective And Constituted Prejudicial Error under Kimmelman v. Morrison, 477 U.S. 365 (1986)

Defendant contends that the prosecutor violated defendant's constitutional right to remain silent by cross-examining him on his post-arrest silence. In a line of questioning impugning defendant's credibility, the prosecutor asked defendant why he failed to tell the officer that Rasheem had the PSP. The prosecutor's questioning under scrutiny is the following:

Q: Did you tell the police?

A: What?

Q: About your friend [who] took the PSP?

A: No.

Q: Why not?

A: They didn't ask me anything.

Q: They didn't ask you anything? You didn't tell them?

A: No.

Q: They arrested you for robbing this individual, and you didn't let them know who took the PSP?

A: Uh-huh.

Q: Why?

A: I don't know.

Q: Why would you go through all of this? You knew who robbed him.

A: Uh-huh.

Q: So you're willing to take the heat for that individual?

A: No.

Q: Well, why didn't you tell the police?

A: I don't know.

Under New Jersey law, a defendant's silence "at or near" the time of arrest cannot be used against him at trial. State v. Elkwisni, 190 N.J. 169, 177 (2007). Even when a defendant initially responds to police questioning, he may still thereafter assert his right to remain silent and that silence may not be used against him, that is, "the words he could have spoken cannot be used against him." State v. Muhammad, 182 N.J. 551, 567-68 (2005).

A case that illustrates this point is State v. Lyle, 73 N.J. 403 (1977). There, defendant Lyle had told the police at the scene of the crime that he had shot the victim and gave no further explanation. Id. at 406. At trial he testified that he shot the victim in self-defense. Id. at 405, 408. The prosecutor argued that if that were true defendant would have told the police on the day of the incident about his claim of self-defense. Id. at 409. The Supreme Court found that "it was manifestly improper to use defendant's silence to attack his self-defense theory as a fabrication." Id. at 410. The conviction was reversed and remanded for a new trial. Id. at 413.

Similarly here it was improper for the prosecutor to attack defendant's version of what happened by commenting on his failure to tell the police that Rasheem had the PSP. "Making reference at trial to what a defendant did not say to the police is commenting on his silence." State v. Muhammad, supra, 182 N.J. at 565.

Since defendant did not raise this issue regarding the prosecutor's comments on defendant's silence below, those comments present reversible error only if they constitute plain error "clearly capable of producing an unjust result." R. 2:10-2. While the whereabouts of the PSP did not appear to play a role in the trial court's decision, defendant's credibility was critical in light of the conflict between his testimony on his involvement in the events and the State's charges. This improper line of questioning undercut defendant's credibility.

Defendant's credibility was necessarily a crucial factor in the trial judge's fact-finding. The critical piece of evidence the trial court held against defendant was the arresting officer's testimony that defendant volunteered that he had not punched the victim, something, as the trial court observed, only someone present would know. Defendant denied making that statement and testified that he told the officer he did not know what happened. Defendant denied being present during the robbery. Further, the arresting officer first testified that defendant said he was there but did not do anything. It was only after prompting by the Assistant Prosecutor that the arresting officer testified that defendant said he had not punched the victim. This statement, which the trial court found defendant had made, played a critical role in the trial court's decision in the context of this case, where the victim could not identify defendant, none of the stolen goods were found, and the victim's identification of the color of the perpetrator's jacket matched that of others in the group stopped by the police as well as defendant. Accordingly, allowing a line of questioning impugning defendant's credibility in contravention of his right to remain silent was clearly capable of producing an unjust result.

Defendant also argues ineffective assistance of counsel for two reasons. The first is that his trial attorney failed to object to the prosecutor's improper cross-examination regarding defendant's post-arrest silence. This argument is now moot, since we have overturned the conviction due to that improper questioning. Defendant's second argument is that his counsel failed to make a timely motion to suppress.

Defense counsel filed a motion to suppress on the day of trial. The court struck the motion as untimely because defense counsel had failed to advise the court at a prior calendar call and at three intervening hearings that she intended to file a suppression motion.

Defense counsel should have advised the trial court at the earlier calendar call or hearings of her intention to make a suppression motion. See R. 3:10-2(a). Certainly, arriving on the day of trial with the motion in hand was untimely, and we do not fault the trial judge for declining to hear such a late motion. However, the court does have the discretion to allow a late filed motion "for good cause shown and in the interest of justice." Ibid. Since the case is being remanded for retrial, and a suppression motion can be scheduled so that it does not disrupt the trial date, in the interest of justice and for good cause, we remand for a decision on the suppression motion.

Reversed and remanded.


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