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State v. Coney

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 9, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TYSON G. CONEY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment Number 05-06-0828.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 15, 2008

Before Judges Fuentes and Grall.

Defendant Tyson G. Coney was tried before a jury and convicted of second-degree robbery, N.J.S.A. 2C:15-1a(1), two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a, third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, fourth-degree credit card theft, N.J.S.A. 2C:21-6c(1), and the disorderly persons offense of simple assault, as a lesser included offense of aggravated assault.

After merging the convictions for simple assault and weapons possession with the second-degree robbery, the court sentenced defendant to a term of seven years, with an eighty-five percent (85%) period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the two third-degree theft convictions, the court sentenced defendant to two terms of four years, to run concurrent to each other, and concurrent to the sentence imposed on the robbery conviction. On the conviction for fourth-degree credit card theft, the court imposed a term of 365 days, to be served concurrent with all of the other terms of incarceration. All mandatory fines and penalties are to be assessed cumulatively.

We summarize the following facts from the evidence presented to the jury.

On January 19, 2005, at approximately 2:45 p.m., Maureen Olson was walking to a parking lot on Cattano Avenue in Morristown, New Jersey. A man approached Olson from behind and ripped her pocketbook out of her hands. Although she did not see his face, Olson described the person who took her purse as "pretty much covered from head to toe [] about five seven, five eight [inches tall and wearing a] beige jacket [] a red bandana wrapped around his face and a ski cap down and gloves." Olson's purse contained a wallet, checkbook, various personal items, and a cell phone. Olson's cell phone provider confirmed that someone had made two calls from her phone after it had been taken.

On January 22, 2005, three days after the Olson incident, Emily Weiss was walking to her car in the same Cattano Avenue parking lot in which the Olson incident occurred. According to Weiss, as she was turning to open her car door, she heard someone say "could you tell me the time." As she turned around to respond, a man*fn1 grabbed her pocketbook from her hands and ran away. Although Weiss could not provide any details about the man's physical appearance, she testified that he was not African American. Weiss's pocketbook contained about $100 in cash, her checkbook, and other personal items.

About two weeks later, on February 5, 2005, shortly after 7:00 p.m., Chentzu Ma was attacked as she walked between parked cars in the same Cattano Avenue parking lot. According to Ma, her assailant struck her in the head and waist, causing her to fall to the ground and drop her purse. Ma was treated at a hospital for a bloody nose and contusions to her head and body.

Her purse contained a paycheck, credit cards, and other personal items.

At the time of the attack on Ma, Virginia Wagner was walking in the area of the Cattano Avenue parking lot when she heard a woman yelling "help." Wagner then saw "a young man [run] out from the vicinity of where [the woman] was yelling, and [run] across the street. He was holding something under his arm and he had dropped a bag on the ground." Wagner described this person as "a young black male [] over five foot seven [] wearing baggy dark jeans and a [black] do-rag on his head [] and a puffy jacket."

Morristown Detective Michael Buckley was dispatched to investigate the assault on Ma. While at the scene, he noticed a black plastic bag on the ground of the parking lot, containing a full Steel Reserve brand beer can.*fn2

Detective Buckley immediately suspected that the Ma incident was connected with the two previous incidents involving Olson and Weiss. Upon speaking with Olson and her husband, Buckley learned that someone had used Olson's stolen cell phone after the theft. Following up on this information, Buckley obtained three residential addresses: two in Morristown and one in Wharton, New Jersey, each of which having received a call from Olson's stolen phone. Detective Buckley visited each residence.

At the Wharton home, Detective Buckley and two other officers obtained the consent of the resident to search the premises. As a result of this search, Buckley found a pair of jeans belonging to defendant in a laundry room. Inside the jeans pocket were a pay stub and a W-2 form in the name of defendant Tyson Coney, and a "Chase banking card" in the name of Chentzu Ma. Buckley also found an empty Steel Reserve beer can in the yard of the residence.

Defendant, who was present at the time of the search, was arrested at the scene. The detectives found a red bandana in defendant's possession. At the police station, defendant gave a taped statement admitting to all three incidents. The statement, which was transcribed and made part of the appellate record, reflects that defendant was fully apprised of his constitutional rights under Miranda*fn3 and thereafter voluntarily agreed to waive those rights, and to answer questions in connection with these crimes.

Defendant testified in his own defense at trial. He refuted the inculpatory statements he made to the police. Defendant claimed to have found the bank debit card recovered from his jeans pocket while walking home one night in Morristown.

Against this factual backdrop, defendant now appeals, raising the following arguments.

POINT I

DEFENDANT'S CONFESSION SHOULD HAVE BEEN SUPPRESSED BECAUSE THE DEFENDANT DID NOT MAKE A KNOWING, INTELLIGENT AND VOLUNTARY WAIVER OF HIS RIGHT TO REMAIN SILENT.

POINT II THE TRIAL COURT SHOULD HAVE CONDUCTED A HEARING AND QUESTIONED JUROR NUMBER 12 AS TO WHETHER SHE WAS SLEEPING DURING THE COURT'S JURY CHARGE.

POINT III DEFENDANT'S CONVICTION SHOULD BE VACATED BECAUSE A JUROR SAW THE DEFENDANT IN SHACKLES AND HANDCUFFS.

POINT IV THE SENTENCE IMPOSED UPON THE DEFENDANT WAS EXCESSIVE.

We affirm. We are satisfied that the arguments raised by defendant lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments. To address defendant's challenge to the admissibility of the inculpatory statements he gave to the police, the trial court conducted a N.J.R.E. 104 hearing in which Detective Buckley and defendant testified. At the conclusion of the hearing, the judge rejected defendant's version of events, and accepted Buckley's testimony as a credible account of how the police conducted this custodial interrogation.

As an appellate court, we are bound to defer to the factual findings of a trial court as long as these findings are supported by competent evidence. State v. Adams, 194 N.J. 186, 203 (2008) (citing State v. Locurto, 157 N.J. 463, 470-71 (1999)). Here, the trial judge's decision rejecting defendant's application to suppress this evidence is well-supported by the record developed at the evidential hearing.

With respect to argument Point II, the trial judge properly rejected defendant's request to question this juror, because the judge was in a clear position to independently assess the juror's conduct throughout the trial. As to Point III, once the issue was brought to his attention, the trial judge conducted a thorough investigation of the incident, including questioning the individual juror directly. The actions taken by the judge thereafter, including instructing the juror not to hold any prejudice or bias against defendant, were proper and served to preserve and protect defendant's constitutional right to a fair trial.

Finally, the sentence imposed by the court was well within its statutory discretionary authority, and properly supported by the relevant aggravating and mitigating factors. State v. Roth, 95 N.J. 334, 363-64 (1984). We discern no legal error here. Affirmed.


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