On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 05-07-01324 and 05-07-01360.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2008
Before Judges Winkelstein, Fuentes and Gilroy.
On July 19, 2005, a Bergen County Grand Jury charged defendant Elvis Marmolejos and co-defendant Luis Caraballo with two counts each of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7). Following indictment, defendant moved to suppress the statements he made to the police on July 26, 2004. The trial court denied the motion on December 20, 2005. Tried without a jury, defendant and co-defendant were found guilty of the charges.*fn1
On June 28, 2007, the court sentenced defendant to two concurrent ten-year terms of imprisonment with an 85% NERA*fn2 period of parole ineligibility. On the same day, defendant was also sentenced on an unrelated conviction of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h, to a concurrent three-year term of imprisonment. The court also imposed all appropriate fines and penalties. Defendant appeals.
On appeal, defendant argues:
THE CONVICTION UNDER INDICTMENT 05-07-01360-I (AGG. SEX. ASSLT.) SHOULD BE REVERSED, AND THE INDICTMENT ITSELF SHOULD BE DISMISSED AND VACATED SINCE ALL WERE PREDICATED UPON DEFENDANT'S STATEMENTS WHICH WERE TAKEN IN VIOLATION OF DEFENDANT'S FIFTH AMENDMENT AND MIRANDA*fn3 RIGHTS.
A. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS DEFENDANT'S STATEMENTS, SINCE IT WAS SHOWN TO THE COURT THAT THE POLICE FAILED TO PROPERLY ISSUE DEFENDANT HIS MIRANDA WARNING AND RIGHTS PRIOR TO BEGINNING CUSTODIAL INTERROGATION.
B. THE TRIAL COURT ERRED IN CONSIDERING THE MIRANDA WAIVER FORM GIVEN TO DEFENDANT TO BE A LEGALLY SUFFICIENT RECITATION OF HIS MIRANDA RIGHTS.
C. THE TRIAL COURT ERRED IN DENYING THE MIRANDA MOTION AS REASONABLE DOUBT WAS PLACED BEFORE IT THAT THE STATEMENT WAS SIGNED INTELLIGENTLY.
THE CONVICTION UNDER INDICTMENT 05-07-01360-I (AGG. SEX. ASSLT.) SHOULD BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL (A) PRETRIAL AS TO A WHOLLY DEFICIENT MOTION TO SUPPRESS STATEMENTS[, I.E.,] MIRANDA MOTION, AND (B) DURING TRIAL.
A. (i). COUNSEL WAS INEFFECTIVE PRETRIAL IN THAT HE FILED A WHOLLY DEFICIENT MOTION TO SUP[P]RESS STATEMENTS.
A. (ii). COUNSEL WAS INEFFECTIVE PRETRIAL IN THAT HE FAILED TO PROVIDE THE COURT WITH CRUCIAL FACTS EITHER BY CLIENT AFFIDAVIT OR BY CLIENT TESTIMONY OF SAME AT THE MIRANDA HEARING.
B. (i). COUNSEL WAS INEFFECTIVE DURING TRIAL IN THAT HE FAILED TO CALL [DEFENDANT] AND [CO-DEFENDANT] AS DEFENSE WITNESSES.
B. (ii). COUNSEL WAS INEFFECTIVE DURING TRIAL IN THAT HE COUNSELED HIS CLIENT TO WAIVE HIS RIGHT TO A JURY TRIAL.
THE CONVIC[TION] UNDER INDICTMENT 05-07-01360-I SHOULD BE DISMISSED AND VACATED DUE TO DEPRIVAL OF DEFENDANT'S U.S. CONSTITUTIONAL RIGHT TO A TRIAL BY JURY.
THE CONVICTION UNDER INDICTMENT 05-07-01360-I SHOULD BE DISMISSED AND VACATED SINCE THERE IS REASONABLE DOUBT AS TO THE ACCURACY OF [DEFENDANT'S] STENOGRAPHIC STATEMENT, QUESTIONING ITS ADMISSIBILITY.
THE SENTENCE UNDER INDICTMENT 05-07-01324-I (CREDIT CARD FRAUD) SHOULD BE REVERSED AND REMANDED FOR RE-HEARING AS SUCH WAS PREDICATED ON THE IMPROPER CONVICTION AND SENTENCE UNDER INDICTMENT 05-07-01360-I (AGG. SEX. ASSLT.), [I.E.,] WAS TO RUN CONCURRENTLY TO A SENTENCE WHICH SHOULD NEVER HAVE BEEN MADE, AND OTHERWISE, [DEFENDANT] WOULD HAVE RECEIVED P.T.I. OR PROBATION.
We affirm the convictions and sentences without prejudice to defendant filing a petition for ...