November 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAMON P. BASSANO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-09-0151.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 8, 2008
Before Judges Cuff, Fisher and Baxter.
Following a jury trial, defendant Damon P. Bassano was found guilty of two counts of second degree official misconduct (Counts One and Two), N.J.S.A. 2C:30-2; two counts of third degree tampering with public records (Counts Three and Four), N.J.S.A. 2C:28-7a(2); and four counts of falsifying or tampering with records (Counts Five, Six, Seven and Eight), N.J.S.A. 2C:21-4a. On Count One, the judge imposed a five-year term of imprisonment. She also invoked N.J.S.A. 2C:51-2d to impose a permanent disqualification from holding public office. On Count Two, the judge imposed a five-year term of imprisonment. After merging Count Five with Count Three and Count Six with Count Four, the judge imposed a three-year term of imprisonment on each count. On Counts Seven and Eight, the judge imposed nine-month terms of imprisonment. All terms are concurrent to each other. The appropriate fines, assessments and penalties were also imposed.
In 1997, defendant began work as a security guard for a private security company; he was assigned to the Hoboken Housing Authority. There, he met John Ramos, who served as a shift supervisor for the private security company on a part-time basis. Ramos also served as a Hudson County Sheriff's Officer.
In early 2002, Ramos developed cardiac problems that required him to undergo quadruple bypass surgery. Later that same year, Ramos approached defendant and asked him to take the Hudson County promotional exam in his stead. Ramos explained he wished to attain the rank of sergeant because it would lead to a substantial increase in his annual salary, but was concerned that he would be unable to concentrate during the test because of his failing health, and he believed defendant would do well on the exam. Defendant rejected this proposition.
Approximately one week later, Ramos approached defendant again, only this time in a much more emotional state. He expressed concern for his family and children because he did not expect to live much longer. Once again, defendant declined. He told Ramos it was not a good idea because someone could get in trouble. Just before Christmas, Ramos again pleaded with defendant to help him. Ramos pointed to the fact that "he would do anything for [Bassano]." He reminded defendant that when they worked in the projects together he "always had [his] back." Defendant eventually agreed to help.
In exchange, Ramos offered to pay for any study materials or classes that defendant required. Ramos also proposed that, in lieu of taking a formal study course, he would simply pay defendant the cost of such a program. Defendant refused both offers. On the other hand, defendant readily agreed to Ramos' offer to forgive a debt of several hundred dollars. Ramos also agreed to help defendant get hired by the Hudson County Sheriff's Department. Defendant was overweight and had problems with his knee, which may have prevented him from performing well on the running exercises. Ramos offered to ask one of the instructors to take it easy on defendant during the running examinations. Finally, Ramos indicated that he would make all the necessary preparations, including acquiring false identification cards and choosing an appropriate test center.
Defendant was concerned about getting caught, so Ramos made arrangements for him to take the exam at a discrete location where he would not be recognized. Ramos chose Monmouth County because it was far from the other test locations. Defendant then aided Ramos in preparing the counterfeit documents. They went together to have defendant's picture taken for fake identifications and he forged Ramos' signature on a Hoboken Housing Authority identification card and duplicate social security card.
Ramos registered to take the sergeant's exam on March 20, 2003, at Middletown High School North in Monmouth County. On the day of the test, Ramos left work and picked up defendant at his home. From there, Ramos and defendant drove to the test site. When they arrived, Ramos handed defendant his wallet, which contained his police badge, a false social security card, and a credit card in Ramos' name. Ramos also handed defendant two phony identification cards -- one for the Sheriff's Department and another for the Housing Authority. Defendant took the wallet and identification, placed them in his pocket, exited the vehicle and walked into the test center.
Upon entering the high school, defendant located the room where he would take the test. When he arrived, the proctor instructed him and the other test takers to separate into rooms by agency. They were then told to place two forms of identification on the desk so that the proctor could check them as he walked around collecting signatures on the exam notification cards. After signing "John Ramos" on the test card, defendant recognized one of the other test takers in the room as a Hudson County Sheriff's Officer.
At this point, defendant started to feel ill, so he left to go to the bathroom, and then returned to Ramos' car parked outside the school. Defendant returned the documents to Ramos and explained that he could not take the test because he thought he had been recognized. Both he and Ramos then left the test site without having received or taken the test. Ramos destroyed the false credentials the next day. Ramos eventually tried to complete a "makeup" examination, explaining that he missed the prior test due to illness, but was prohibited from doing so because he was under investigation for cheating.
Subsequently, on July 8, 2003, defendant applied for a position as a sheriff's officer in the Hudson County Sheriff's Office. Ramos kept his word and spoke to someone on his behalf. He also forgave defendant's outstanding debt. But on September 24, 2003, not long before physical training was scheduled to begin, defendant called the Sheriff's Office and informed them that he was deferring his application.
At trial, Detective Sergeant Myles Cappiello of the New Jersey State Police testified that defendant's name was mentioned in the course of their investigation into allegations of cheating by Ramos. Cappiello and his partner, State Investigator Scott Donlan, made an unannounced visit to defendant's apartment in early 2004. They advised him that they were following leads regarding allegations of cheating on the March 20, 2003 Hudson County sergeant's exam. The three men proceeded to a diner, where defendant disclosed all the details of the scheme with Ramos. Thereafter, defendant gave a recorded statement and agreed to assist their investigation by wearing an audio device during a conversation with Ramos about the phony documents and their plan to cheat on the exam.
On April 6, 2004, defendant contacted Ramos and they agreed to meet at defendant's apartment. Cappiello wired defendant, who then initiated a conversation with Ramos about the person who defendant believed recognized him at the test center. They also talked about the identification cards, the registration form and whether they were destroyed in reference to Ramos attempting to take a makeup. During this conversation, Ramos made incriminating statements.
Ramos testified on behalf of the State at trial. He had pled guilty to third degree official misconduct and agreed to cooperate with the State.*fn1 Defendant testified on his own behalf at trial. Defendant conceded that he had agreed to take the sergeant's exam on behalf of Ramos, that Ramos accompanied him to have his photograph taken for the phony identifications, and that he drove to the test site with the intention of taking the exam until he was forced to abandon the scheme when he saw someone he knew.
On appeal, defendant raises the following arguments:
DEFENDANT'S INCRIMINATING STATEMENTS WERE OBTAINED IN VIOLATION OF HIS RIGHT AGAINST SELF-INCRIMINATION AS GUARANTEED BY FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND NEW JERSEY CASE LAW AND, ACCORDINGLY, HIS CONVICTION MUST BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL. (Not Raised Below).
a. The lower court's finding that Defendant was merely a "person of interest" at the time of police questioning is not supported by the evidence, is error and, therefore, is not entitled to deference by this reviewing Court.
b. Defendant's waiver of right to remain silent was neither knowing nor intelligent.
c. Defendant's statements were obtained in violation of New Jersey's "target doctrine" and, accordingly, his statements must be suppressed.
THE COURT BELOW ERRED IN DENYING DEFENDANT'S REQUEST TO SUPPRESS THE STATEMENTS HE GAVE INVESTIGATORS IN VIOLATION OF HIS MIRANDA RIGHTS.
THE COURT'S UNNECESSARY REPETITION OF THE DRISCOLL DUTIES DURING IT[S] CHARGE, IN COMBINATION WITH THE REFERENCE TO THE RULES OF CONDUCT FOR HUDSON COUNTY SHERIFF'S DEPARTMENT, WAS CONFUSING AND PREJUDICIAL TO DEFENDANT.
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
THE TRIAL COURT ERRED IN FAILING TO CREDIT DEFENDANT WITH ALL APPLICABLE MITIGATING FACTORS AND IN FAILING TO SENTENCE DEFENDANT CONSISTENT WITH A CONVICTION FOR A CRIME ONE DEGREE LOWER THAN THAT FOR WHICH HE WAS CONVICTED. (Not Raised Below)
Defendant argues that his statements to the State Police officers were obtained in violation of his right against self-incrimination because he was in custody when interviewed, any waiver of his right to remain silent was neither knowing nor voluntary, and he was a target entitled to Miranda*fn2 warnings prior to the interview.
Judge Uhrmacher conducted an evidentiary hearing prior to trial. She found that the conversation between defendant and the State Police officers at a local diner was not a custodial interrogation. Therefore, the officers were not required to inform defendant of his right to remain silent.
The obligation to adhere to the specific requirements of Miranda is triggered when law enforcement officers conduct a custodial interrogation. Beckwith v. United States, 425 U.S. 341, 346, 96 S.Ct. 1612, 1616, 48 L.Ed. 2d 1, 7 (1976) (citing Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed. 2d 311 (1969)); State v. O'Neill, 193 N.J. 148, 179 (2007). An individual is in custody for the purpose of requiring a law enforcement officer to provide Miranda warnings when "there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." State v. P.Z., 152 N.J. 86, 103 (1997). Circumstances may require the administration of Miranda warnings at a place other than a police station, but only when a "coercive atmosphere and restraint of freedom" exists. Ibid.
It is undisputed that defendant was not in custody when he agreed to speak to the State Police officers. He suggested that they go to a local diner. While he may have been a suspect, this is only one factor to be considered. See State v. Brown, 352 N.J. Super. 338, 352 (App. Div.) (place, time and duration of interrogation as well as status of the suspect are relevant considerations), certif. denied, 174 N.J. 544 (2002). Defendant answered questions in a public place, and there is no suggestion that he was not free to leave at any time. In short, Judge Uhrmacher's finding that defendant was not in custody is well-supported by the evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999).
Furthermore, defendant's reliance on State v. A.G.D., 178 N.J. 56 (2003) is misplaced. There, the police had informed the defendant of his Miranda rights before they commenced questioning him at the police station; the defendant waived his rights and proceeded to make incriminating statements. Id. at 60. The police had not informed the defendant that an arrest warrant had been issued. Id. at 59. He was arrested only after he completed a written statement. Id. at 60. The Court held that the "failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights." Id. at 68. Here, unlike in A.G.D., defendant was not in custody. Moreover, being considered a suspect is qualitatively different from a person who is the subject of an arrest warrant. See State v. Nellom, 178 N.J. 192, 200-01 (2003) (an arrest warrant is issued only upon a showing of probable cause).
Defendant also maintains that the jury charge was confusing and prejudicial because the judge unnecessarily repeated the duties of a public officer and referred to the rules of conduct for Hudson County Sheriff's Officers, and thereby unduly prejudiced his defense. We disagree.
Defendant was charged with official misconduct as an accomplice. Due to defendant's status as a private citizen, it was imperative for the judge to inform the jury the standard of conduct expected of Ramos and how defendant's participation in the scheme subverted those duties. The charge would have been utterly meaningless without these references. Indeed, the charge as crafted exemplifies the requirement that a trial judge fashion a jury charge that molds the facts to the law. State v. Concepcion, 111 N.J. 373, 379 (1988).
Defendant also contends that he should receive a new trial due to cumulative error. This argument is without merit. Defendant fails to identify those other errors.
Finally, defendant argues that his sentence is excessive. He contends that he should have been sentenced as a third degree offender. If so, the judge could have imposed a term of imprisonment between three and five years. N.J.S.A. 2C:43-6a(3). Defendant was sentenced to the minimum term of five years imprisonment for a second degree offense. N.J.S.A. 2C:43-6a(2).
Judicial review of sentences is limited. We may determine whether the judge properly applied the legislative guidelines, whether the aggravating and mitigating factors are founded on competent credible evidence in the record, and whether the application of the guidelines to the facts of the case are reasonable. State v. Roth, 95 N.J. 334, 364-66 (1984). We may disturb a sentence on the latter ground only if the "the sentence [is] clearly unreasonable so as to shock the judicial conscience." Id. at 365.
Defendant correctly contends that a judge may fashion a sentence that imposes a prison term in accordance with the guidelines governing offenses one degree lower. N.J.S.A. 2C:44-1f(2). The judge may do so, however, only "where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands . . . ." Ibid. Defendant has not satisfied this high standard. Defendant was convicted of an offense that erodes public confidence in the persons entrusted with important and sensitive public duties. The evidence demonstrated that defendant knew the act proposed by Ramos was wrong. Nevertheless, he fully participated in the scheme up to the point of appearing for the test. The sentence imposed was at the bottom of the applicable second degree sentencing range and does not shock our judicial conscience.