On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-11-4563.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Wefing, Parker and Yannotti.
Defendant Daniel Dandor appeals from an order entered on March 12, 2007, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with murder, in violation of N.J.S.A. 2C:11-3a(1) and (2) (count one); burglary, in violation of N.J.S.A. 2C:18-2 (count two); felony murder, in violation of N.J.S.A. 2C:11-3a(3) (count three); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5d (count four); and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d (count five). Counts two and three were dismissed prior to trial.
Defendant was found guilty on counts one and four, and not guilty on count five. On count one, defendant was sentenced to thirty years of incarceration, with a thirty-year period of parole ineligibility. He was sentenced to six months of incarceration on count four.
Defendant appealed and raised the following issues:
DEFENDANT'S RIGHTS UNDER THE UNITED STATES CONSTITUTION, AMEND V, AMEND XIV AND NEW JERSEY COMMON LAW, STATE v. HARTLEY, 103 N.J. 252 (1986) WERE VIOLATED BY INTRODUCTION OF HIS INVOLUNTARY AND COERCED STATEMENT OBTAINED WHILE HE WAS IN THE HOSPTIAL BED.
A. THE HOSPITAL SETTING AS SITUS FOR INTERROGATION WAS CLEARLY CUSTODIAL.
B. THE READING OF MIRANDA RIGHTS DOES NOT IPSO FACTO REMOVE THE ISSUE OF VOLUNTARINESS. THE STATE DID NOT SUSTAIN ITS HEAVY BURDEN OF DEMONSTRATING UNDER THE TOTALITY OF CIRCUMSTANCES TEST THAT DEFENDANT'S INCRIMINATORY STATEMENT WAS MADE KNOWINGLY, INTELLIGENTLY AND WITH THE ABILITY TO MAKE CRITICAL SELF-DETERMINATIONS.
THE STATE'S FAILURE TO SUSTAIN ITS BURDEN OF PROOF REQUIRED [THE] ENTRY OF [A] JUDGMENT OF ACQUITTAL IN DEFENDANT DANIEL DANDOR'S FAVOR; IN THE ALTERNATIVE, THE ...