August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL TWIAN BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-04-0858.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2009
Before Judges Winkelstein, Fuentes and Chambers.
Defendant Daniel Twian Brown was tried before a jury and convicted of multiple counts of first-degree armed robbery, theft, unlawful possession of a firearm, and possession of a firearm by a convicted felon. Defendant and his cohorts committed these crimes over a five-day period, commencing on December 28, 2004, and ending on January 1, 2005, the day of his arrest. These crimes were committed in separate locations, and implicated several victims.
A Bergen County grand jury indicted defendant on forty separate counts of criminal activity, more particularly described as follows: Count one, third-degree theft, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:20-3; Count two, first-degree robbery, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1; Count three, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count four, third-degree unlawful possession of a loaded rifle or shotgun, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 20:39-5(c)(2);*fn1 Count eight, second-degree robbery, contrary to N.J.S.A. 2C:2-6, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1; Count nine, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count ten, third-degree unlawful possession of a loaded rifle or shotgun, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(c)(2); Count eleven, second-degree burglary, contrary to N.J.S.A. 2C:18-2; Count twelve, first-degree robbery, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1; Count thirteen, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count fourteen, third-degree unlawful possession of a loaded rifle or shotgun, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(c)(2); Count fifteen, third-degree theft, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:20-3; Count sixteen, third-degree theft, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:20-3; Count seventeen, first-degree robbery, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1; Count eighteen, third-degree aggravated assault, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:12-1(b)(2); Count nineteen, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count twenty, third-degree unlawful possession of a loaded rifle or shotgun, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(c)(2); Count twenty-one, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count twenty-two, third-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:2-6, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4;*fn2 Count twenty-four, first-degree robbery, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1; Count twenty-five, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count twenty-six, third-degree unlawful possession of a loaded rifle or shotgun, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(c)(2); Count twenty-seven, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count twenty-eight, third-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:2-6, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4; Count twenty-nine, second-degree robbery, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1; Count thirty, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count thirty-one, third-degree unlawful possession of a loaded rifle or shotgun, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(c)(2); Count thirty-two, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count thirty-three, third-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:2-6, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4; Count thirty-four, second-degree eluding, contrary to N.J.S.A. 2C:29-2(b); Count thirty-five, fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a)(2); Count thirty-six, fourth-degree resisting arrest, contrary to N.J.S.A. 20:29-2 (a)(2);*fn3 Count thirty-nine, second-degree unlawful possession of a weapon (a rifle) by a person convicted of an enumerated offense, contrary to N.J.S.A. 2C:39-7(b); and Count forty, second-degree unlawful possession of a weapon (a handgun) by a person convicted of an enumerated offense, contrary to N.J.S.A. 2C:39-7(b).
At sentencing, the court granted the State's motions to impose consecutive sentences as to certain offenses, and for a discretionary extended term. The court thus sentenced defendant to an aggregate sentence of life imprisonment, with 93 years, 8 months and 106 days of parole ineligibility.
After reviewing the record before us, and in light of prevailing legal standards, we reverse defendant's conviction on the charges related to unlawful possession of a rifle (Counts four, ten, fourteen, twenty, twenty-six, thirty-one and thirty-nine). There is no evidence that Brown or his co-defendants possessed a rifle during the commission of the crimes. We thus remand for re-sentencing based on the vacation of these convictions. We also vacate the sentence imposed on two convictions for second-degree robbery because: (1) the length of these sentences exceeded the range permitted under N.J.S.A. 2C:43-6(a)(2); and (2) the sentencing judge failed to make adequate findings in support of the aggravating, mitigating and Yarbough*fn4 factors. We affirm the remaining convictions.
In the interest of clarity, we will recite the relevant facts by identifying the events in chronological order.
A. The Gas Station Robbery in Lodi
The following account of events is based primarily on the testimony of Julio Ortiz. In the early morning hours of December 29, 2004, Ortiz was working as a gas station attendant at a BP gas station on Route 46 in Lodi. At about 4:35 a.m. he was inside the attendant's booth when he noticed a car with more than one person in it, parked across the street from the gas station. There was no one else around the gas station at the time. Ortiz described the car as a silver, four-door, Dodge Neon, or possibly Ford Escort; it had no front license plate.
From Ortiz's perspective, the occupants of the car "watched" him for a about fifteen minutes; the car then drove into the gas station and stopped twelve to fifteen feet away from gas pump number one, the pump farthest from Ortiz.
Although the lighting conditions did not permit him to see their faces, Ortiz saw two persons seated in the front of the car, and one in the rear seat; all three occupants were male and African American.
When one of the men in the car told Ortiz to "come here," he responded by motioning to the driver to move the car forward to pump five. The car did not move. As he stepped out of the attendant's booth, Ortiz saw that the three occupants wore bandannas that covered their faces from the top of their noses down. As Ortiz walked toward the car, the man seated in the back of the car said: "come here, bitch, give us the money." According to Ortiz, "they" had a gun that "looked like an Uzi."
Fearing for his life, Ortiz ran behind a gas pump. As he looked back, Ortiz saw that the occupants had not left the car; Ortiz then turned and ran toward the gas station's convenience store and called the police. The car sped away without further incident. When the police arrived soon thereafter, Ortiz described the assailants as three men who wore "black hats, jackets, and... black bandanna[s] covering their faces." The gas station's security camera did not record the event.
B. The Gas Station Robbery in River Edge
The following account of events is based primarily on the testimony of Abdelhaki Dlaymi. In the early morning hours of December 29, 2004, Dlaymi was working as a gas station attendant at a BP gas station located between Hackensack Avenue and Main Street in River Edge. Between 4:00 and 5:00 a.m. Dlaymi saw a man walk from the back of the gas station towards him. Dlaymi described the man as dressed all in black, wearing a military jacket and gloves, and except for the eyes, his face was completely covered.
When Dlaymi asked the man if he could be of assistance, he did not respond, continuing to walk towards him with one hand behind his back. At this point, Dlaymi saw another person walking towards him, similarly dressed in an all black, military-style jacket. Dlaymi could not see this person's face. Fearing that he was about to be robbed, Dlaymi turned and ran towards the street, eventually stopping a motorist who called the police. Dlaymi reported to the police that the only item missing from his attendant's booth was his personal cellular phone.
Detective Kurt Wilhelm of the River Edge Police Department returned to the scene later that day. Upon further investigation, Wilhelm saw footprints in the snow that led to the back of the gas station. The Bergen County Sheriff's Department determined that the footprints were made by Adidas or Nike sneakers and by Timberland boots. The parking lot for Eden Furniture is located about 200 yards behind the gas station property, in the direction of the footprints. The parking lot was monitored by a motion-activated camera.
At 5:25 a.m. the camera recorded a vehicle pulling into the parking lot with its lights off. It was dark outside at the time. Seven minutes later, at 5:32 a.m., the camera recorded three people running from the area behind the gas station to the car. The recording was of low quality and did not show any details of the runners' features. With respect to the car, the recording showed only a four-door vehicle that appeared light in color. At 5:42 a.m. the camera recorded a police car entering the parking lot.
C. The Gas Station Robbery in Englewood
The following account of events is based primarily on the testimony of Kevin Uyar. On December 29, 2004, Uyar was working as a gas station attendant at the Mobil station located in Englewood. He reported to work that day at 5:00 a.m. Between 5:50 and 6:00 a.m. a car pulled up next to a gas pump. As he walked out from the store of the gas station, Uyar saw three men inside the car: one in the driver's seat, one in the passenger's seat and one in the rear.
The man in the rear seat came out of the car, pointed a black handgun at Uyar, and said "yo, I rob you." The man in the passenger's seat got out of the car, took $500 that Uyar had in his pocket and said: "I want more." When Uyar said that he did not have any more money, the robbers went back inside the car and drove off. Immediately after the robbers drove off, Uyar cried for a "couple of seconds," called the police, and wrote the license plate number of his assailants' car on the counter of the gas station's store.
Detective Peter Schwartz of the Englewood Police Department responded to the call. Based on the license plate number provided by Uyar, Schwartz ascertained that the car was a Ford Escort, registered to Fairmont Truck Rentals in Hackensack. When Fairmont Truck Rentals confirmed that the vehicle had been stolen, Schwartz broadcast the license plate number over the State Police Emergency Network (SPEN).
D. The Easy Shop Robbery in Garfield
The following account of events is based primarily on the testimony of Muzafar Ali, Sanela Malicevic and Joseph Sodora.
Easy Shop is a convenience store owned by Muzafar Ali, located in Garfield. On December 30, 2004, between 11:10 and 11:20 p.m., Ali was alone in the back room of the store, preparing to close for the day. Sanela Malicevic and her husband, who lived nearby, were walking past the store, on their way home from dinner.
At this point, Malicevic saw five men "huddled together," next to two cars that were parked in a lot next to the shop. One man wore a red-striped gray hoodie sweatshirt; a second man, who was tall and husky, wore a knee-length black down coat; she could not describe the other three men; she also could not identify the race of any of the men. Because these men made her uncomfortable and nervous, Malicevic decided to hold her cellular phone in her hand as she and her husband walked past them.
At this point, Malicevic heard the man dressed in the hoodie say: "let's go," as he pulled the hood over his head; a second man put on a mask that covered his face. As she dialed 9-1-1 on her cell phone, Malicevic heard Ali yelling: "don't do this... don't shoot me," followed by a gunshot. As she ran away from the store, Malicevic turned back and saw Ali also running; she then heard three more gunshots.
According to Ali, he was working in the back room of the store when he heard someone enter through the front door. As he walked toward the counter located next to the door, three men wearing masks were already in the store. He did not remember what type of clothing they wore. The only thing Ali could say definitively was that the man who pointed a silver gun at him was tall.
The men told Ali to "get down"; he told them to take whatever they wanted. Two of the men stood in front of Ali, and a third man stood behind him. Using the gun, "they" hit him in the front and back of his head. Ali fell to the floor and heard a gunshot. He quickly rose up and ran out of the store, turning left onto MacArthur Avenue. Ali heard more gun shots as he ran.
Ali heard another gun shot when he reached the driveway of a house that sat across the street from the shop. He jumped onto the deck of the house and heard yet another gunshot. All of the bullets "just missed" him. Ali eventually called 9-1-1 from his cellular phone. Ali was transported to Hackensack Hospital where he received nine staples to seal a laceration in the front of his head, and twenty-seven staples for an injury to the back of his head.
Joseph Sodora lived near the Easy Shop at the time of this incident. He was in his house when he first heard a loud bang.
He initially dismissed it as children playing. About a minute later, he heard two more bangs; he walked outside to see two cars "taking off down Passaic Street, one in each direction." One car was dark red; the other was dark blue or black. He also saw a "goldish-color Nissan" driving directly towards him with its car lights turned off; he could not see the occupants in any of the cars.*fn5
At about 4:00 a.m. on December 31, 2004, Sergeant Edward Dolack of the Garfield Police Department interviewed Ali in the emergency room of Hackensack Hospital. Although in pain and "incoherent," Ali gave Dolack the following description of his assailants: "three males, one black, one white, the other unknown. All wearing dark ski masks, hats, gray bulky jackets. Heights approximately five foot eight inches." Ali testified that the men stole $200 from the Easy Shop.
E. The Catering Truck Robbery in Teterboro
The following account of events is based primarily on the testimony of John Toronto. Toronto owned and operated a food catering truck. This is the type of rolling short-order food establishment ordinarily found at industrial parks, or near high school and university campuses. Toronto was seventy-years old at the time of this incident.
On December 31, 2004, at around 4:00 a.m., Toronto was parked in Lavalli's Food's parking lot. When the last customers left, a car entered the parking lot, drove away from Toronto's truck, then drove back towards the truck and stopped. Three African American men*fn6, wearing "winter clothes" and ski masks, jumped out of the car. One of the men wore glasses under his ski mask. Toronto described that man as "heavy," about six feet, and one to two inches tall. Two of the men had guns.
The men pointed their guns at Toronto and demanded that he give them his money. They held him against the side of the truck, pushing a gun against his ribs. Toronto took $150 out of his pocket and gave it to them; he also gave them some cigarettes, his cellular telephone, and a coin dispenser that he wore around his waist. The men then pushed Toronto into the truck and drove off. Toronto had to wait for someone with a telephone to arrive in order to call the police.
Officer Samuel Aguilar of the Little Ferry Police Department and three other officers responded to the scene. Toronto described what had happened to him; as to the car the men were driving, although not certain, Toronto thought the car was a tan colored older model Chevy.
Lavalli's Food had a video surveillance camera that recorded the events in the parking lot. Other than generally showing what had taken place, the video provided little detail on the assailants' appearances other than to show that one of them wore a white coat.
F. The Gas Station Robbery in Hackensack
The following account of events is based primarily on the testimony of Baytekin Marasli. On December 31, 2004, between 4:20 and 4:30 a.m., Marasli was working as a gas station attendant at a BP station on Route 17 in Hackensack. While talking on the phone inside the attendant's booth with the door locked, Marasli heard a noise coming from the door. When he turned to see who it was, Marasli saw a man "squatting and trying to open the door." Marasli was able to see the side of the man's face, whom he described as "a black man" dressed in black; he did not wear anything to cover his face; he had no facial hair, appeared to be between twenty-five and thirty-years-old.
The man ran off, and Marasli called the police. Marasli also saw another person running in the same direction, dressed in black. The police broadcasted the attempted robbery over the SPEN. Officer James Prise of the Hackensack Police Department was on patrol in a marked vehicle when he heard the broadcast. He turned onto Summit Avenue South and saw "a vehicle that was two, maybe three cars back from a traffic light." The car seemed to match the description of the light-colored, possibly tan, car that Prise had heard earlier that morning over the SPEN regarding an armed robbery in Little Ferry.
As the car, a Nissan, passed on his left, Prise saw that three or four "black males" were inside "possibly wearing some type of wool hats." Prise made a K-turn to follow the car. As he was turning, the car moved "onto the wrong side of the roadway heading northbound and then it made a left onto the ramp for 17 north." Prise activated his lights and siren and followed the car onto the Route 17 north ramp.
The car eventually left the highway and drove into a Home Depot parking lot. Prise saw the license plate number and reported it. He continued to follow the car north through the Home Depot parking lot, towards Essex Street, which runs east to west. As he and the Nissan approached Essex Street, Prise saw a Hackensack police car driven by Officer Niles Malvasia, traveling west on Essex Street towards them. The Nissan nearly collided with Malvasia's patrol car, and Prise had to lock his breaks to avoid a collision.
The Nissan continued north, crossing over Essex Street, onto private property. Prise followed it across the back of Jack's Car Wash and into a "construction yard." At this point, Prise saw what looked like a silver revolver being tossed from the car; the car then stopped. Prise stopped his vehicle about two-and-a-half car lengths behind the Nissan. He opened his door, drew his weapon, and crouched behind his door.
All doors, except the front passenger's door, were opened; all four occupants exited the car (one from each rear door and two from the driver's side door). The occupants then ran north along the railroad tracks. Although the lighting in the area was poor, Prise "immediately" recognized that the last man who crawled out of the car was Kenyatta Clarke. Prise described Clarke as "a black male, maybe [in his] mid-twenties"; he was about six feet three or four inches tall and weighed between 280 and 300 pounds. Prise had also seen him wear glasses in the past. Malvasia corroborated Prise's description of Clarke's physical features.
Prise followed Clarke along the railroad tracks until Clarke got tangled in the vegetation and fell to the ground. Prise arrested him without resistance. Clarke was wearing a black jacket, a red wool hat with the eyes cut out, a do-rag on his head, and a pair of gloves that had a rubber coating on the palms. He had $203 in his pocket.
Malvasia took custody of Clarke while Prise continued to run north along the railroad tracks after the other suspects. This proved fruitless. However, Prise found a "black BDU-style jacket" during the chase, that was near an apartment building along the railroad tracks. Inside the Nissan, police found cartons of cigarettes, a coin dispenser that Toronto identified at trial as the one he was wearing at the time of the robbery, a black.22-caliber pistol (found on the driver's side floor), and a blue or black bandanna. The car looked as if it had been stolen, with the steering column "punched out."
On the ground near the Nissan, police found a silver 357 Magnum revolver. It had three live and three spent rounds in its cylinder. Charles Mason of the Bergen County Sheriff's Department testified that based on his examination, both weapons were operational. Neither weapon was tested for fingerprints.*fn7
G. The Stolen Cars
On December 30, 2004, Fairmont Car and Truck Rental reported to the police the theft of a Ford Escort. The police recovered the car on Berry Street in Hackensack; it had a broken window and the ignition had been tampered with.
In late December 2004, Jacqueline Kero reported that her 1995 Audi had been stolen from a repair shop. The car was an odd color that Kero described as "[k]ind of purplish brownish." Garnto testified that a Nissan and an Audi were used in the Easy Shop robbery in Ridgefield Park.
Tosh Tatezawa, the General Manager of JTB USA Incorporated (JTB), located in Hasbrouck Heights, testified that in late December 2004, his company reported that a four-door silver 2000 Nissan had been stolen from JTB's lot. This same vehicle was the one involved in the chase with Officer Prise. The police did not find any fingerprints inside the Nissan.
H. The Confession
Based on the statements given by Kenyatta Clarke, the police arrested three other individuals who participated and otherwise carried out the crimes. These individuals also gave incriminating statements to the police, including naming defendant as one of the participants. In fact, it is undisputed that all four of the men arrested implicated defendant in these crimes.
Based on these statements, Hackensack police officers arrested defendant on January 1, 2005. The arrest was not uneventful. Armed with a sworn complaint, the police responded to the apartment of a woman believed to be defendant's girlfriend. Immediately after the arresting officers knocked on the front door of the apartment, they heard a "crash" sound. The sound was caused by defendant crashing through a back window of the apartment, onto the roof of an adjacent building occupied by McManus Tool Rental. This building's roof top is approximately fifteen feet lower than the window of defendant's girlfriend's apartment. After a tense, twenty-minute standoff, defendant surrendered to the police.
While in custody, and after waiving his rights under Miranda,*fn8 defendant gave an incriminating statement concerning his involvement in the various crimes. Specifically, defendant admitted to stealing the Nissan and Audi and to committing the December 30, 2004, armed robberies of the Easy Shop in Garfield and the BP gas station in Hackensack.
Defendant admitted that between 9:30 and 10:00 p.m. on December 30, 2004, he went to an "office building across from the Sheraton Hotel" on the "borderline of Hackensack and Hasbrouck" and stole a four-door car that was an "off-color," possibly tan, by breaking the window and "snatch[ing] out the ignition" with a dent puller. He was accompanied by three men whom he knew as Kenny (Kenyatta Clarke), Junior and Jermaine. Kenny was "the guy you [police] caught." Junior was "some dude from the block" who was "black... short and stocky." Jermaine who lived on Lawrence Street in Hackensack, was tall and "brown-skinned." Defendant indicated that, at the time he committed these crimes, he wore "jeans, [a] black shirt, maybe blue, knit hat, [and] blue Adidas sneakers." Kenny wore "dark clothing," and Junior wore "blue jeans."
Defendant said that he drove to "some car lot on the border of Garfield and Passaic along the river." He had stolen an Audi the same way that he stole the other car. He "put New York plates on it and drove off." One of the other three men drove the other car. They then switched cars; he drove the Hackensack-Hasbrouck car, with Junior as a passenger; Jermaine drove the Audi with Kenny as a passenger.
The four men went to a convenience store in Garfield. Defendant was armed with a "22 long, 10-shot clip, black handgun." Kenny had a "357 revolver, six shots, chrome." When asked what they did at the store, defendant gave the following response:
Go in the convenience store on Passaic Street and go up in the store, caught the man up in the back, told him don't move, where's the money at. The man tried to get away. He broke free. I smacked him with the gun. He just ran. I was still in the store. I heard shots. I ran out, jumped in the car, and left.
According to defendant, he was not the one who fired the shot. Because Kenny was the only other person with a gun, defendant deduced that he must have been the one who fired the shots.
After that robbery, defendant "dumped the Audi on Gamewell Street,... [and] dropped Jermaine off on the top of Lawrence Street." He, Kenny and Junior then drove the HackensackHasbrouck car to a parking lot behind the BP gas station in Hackensack. They "walked over to the door of the booth [of the gas station]. [Defendant] tried to open the door. The guy turned around and [they] left. [They] jumped in the car and [they] left." Defendant admitted that he and Kenny had their guns with them, and tried to open the door to commit a robbery. When asked if his weapon was loaded, Defendant responded: "I guess it was loaded. It wasn't cocked." Kenny's 357 magnum revolver was loaded with six rounds in its cylinder.
Defendant gave the following description of what transpired next:
Got onto Summit Avenue. The cop car came off the highway, turned around, and I drove off. He's doing his lights. I went on 17, then I bounced through the parking lot of Home Depot. Another cop car cut me off. Another cop car was coming down the hill. I drove into the car wash. I got out and ran.
He said that after hiding in a wooded area for a while, he went home. The handgun he was carrying may have fallen during the chase, possibly on the seat of the car. Defendant read and signed the printed version of his oral statement at 4:10 p.m. on January 1, 2005.
Defendant was also interrogated by Detective Peter Schwartz of the Englewood Police Department. After again being advised of his Miranda rights, and again waiving those rights in writing, defendant admitted to Schwartz that he stole the Ford Escort, and committed the December 29, 2004, armed robberies of the River Edge BP gas station and the Englewood Mobil gas station. According to Schwartz, defendant appeared "very calm" during this interrogation.
Defendant provided the following details of his participation in these crimes. Between 7:30 and 8:00 p.m. on December 28, 2004, defendant "broke into" a car at "Fairmont Rentals and popped the ignition and stole the car." Fairmont Rentals was on or near "Main Street... across from the 7/11." After getting "high and whatever," defendant, Kenny and Parham "went to BP on Hackensack Ave.," presumably in River Edge, "[a]round the corner from McDonald's," near railroad tracks, parked the car behind the building, and the three of them ran to the gas station. Once defendant was inside the booth, the attendant must have seen "some other guy in [their]... group standing there," and ran away screaming. The assailants started running as well and defendant "grabbed the cell phone from the booth."
The three men then returned to the car and drove to the gas station in Englewood. As soon as they arrived, Kenny and Parham jumped out; Kenny "got the money," while Parham "held the gun." The gun referred to here was defendant's ".22 long rifle, Smith & Wesson, 10 shot clip handgun." It was "loaded, but not cocked. So you couldn't fire it because it had to be chambered." Defendant stated that after the Englewood robbery, "it was over. We took it in. We went back to Grand Ave.... and went to Park and Berry and left the car and we all went our own way."
At the conclusion of his interrogation, Schwartz asked defendant if he wanted to add to his statement. Defendant responded as follows:
Yes. I am sorry and I wasn't trying to hurt nobody. I was trying to feed my family and I lost my job and I was going through a rough time. And it was Christmas and basically I was going through a rough time.
And every interview I went to they just kept turning me down.
After speaking to Schwartz, defendant gave a statement confessing to stealing the Nissan and Audi and to robbing the Easy Shop in Garfield. That statement began at 9:25 p.m. on January 1, 2005. Defendant gave the following description of his participation in the Easy Shop robbery:
Me and my three friends*fn9 met at Anderson Street in Hackensack then walked to Hasbrouck Heights, New Jersey, when Kenyata broke the back window of a gray colored car, four-door, I'm not sure what make of the car. I then popped the ignition and started the car. The vehicle was parked in a parking garage by an office building across the street from the Hilton Hotel.
All of us drove to Garfield and copped some weed and liquor from a friend by the train station on Passaic Street. We then drove out to Paterson, New Jersey, and smoked some weed and drank the liquor. Then came back into Garfield, New Jersey, when we parked the car on River Drive in Garfield right by Belmont Ave. When I got out of the car along with Kenyata.
We then went down a driveway of an auto body shop and I popped the ignition of a brown Audi four-door car. I then took New York plates off of another car and put them on the Audi. We then drove around the corner and switched cars.
Germane and Kenyata were in the Audi and Winston and I were in the -- were in the Hasbrouck Heights car. We then drove down Passaic Street toward Lodi when I backed the car I was driving in a parking lot on the side of the store we robbed.
Germane was driving the Audi with Kenyata in the passenger seat when they parked on MacArthur Ave. right in front of the driveway I parked in facing Passaic Street.
We all then got out of our cars, masked up, and went into the front door of the convenience store located at 171 Passaic Street. We then walked up to the back room in the store when we saw the store clerk.
When we were in the door of that room I said to the store clerk get down, where's the money? The store clerk then grabbed the gun that was in my hand. Kenyata then hit him in the head when I pulled the gun away and hit the store clerk in the head with my gun.
The store clerk then pushed away from us and ran out the front of the store screaming and bleeding from the top of his head. Winston and me were still in the store when Kenyata took the cash register drawer and ran out the front with Germane after the store clerk.
As Winston and I were exiting the front door of the store I heard two or three gunshots fired. Winston and I then got into our car and drove off out of the driveway making a left and the second right turn. As I was -- As I was running to our car I saw Kenyata and [Germane] make a left-hand turn onto Passaic Street toward Lodi.
The interrogating officer then asked defendant to identify who among them were actually armed when they went inside the store; defendant gave the following answer:
Me and Kenyata. I had a black Smith & Wesson.22 caliber semiautomatic with 10 rounds in the magazine and none in the chamber. And Kenyata had a 357 revolver, 6-shot chrome with a wood grip and a chrome Taurus -- (phonetic)
These were the guns that Kenyata struck the store clerk with on his head -- this was the gun that Kenyata struck the store clerk on the head with.
Defendant specifically denied firing any shots during the robbery. After fleeing from the store, defendant said:
We all met up in Hackensack on Lawrence Street. We all got out of the cars and we started to argue about who busted off. Kenyata said, yeah, I shot the store clerk. I just had to shoot. I wasn't trying to hit him, I just shot in his direction.
Germane then went home and I dropped off the Audi off on Gamewell -- (phonetic) -- Street in Hackensack. I then got into the other car with Kenyata and Winston and drove around for several hours.
Defendant's description of the clothing they were wearing that day matched the description provided by the victims and other witnesses. According to defendant, he did not get any money from this robbery. In conclusion, defendant reiterated that he did not mean "to hurt the store clerk." Defendant signed the statement at 10:45 p.m. on January 1, 2005.
Before providing the fourth and final statement, defendant was given pizza and something to drink. Detective Jeffrey Telep of the Lodi Police Department conducted this interrogation. Again, Telep indicated that defendant was "very calm and cooperative," and did not seem or say that he was too tired or hungry to give a statement. Telep advised defendant of his Miranda rights, and Brown initialed and signed the Miranda form, signifying that he understood his rights and waived them.
The interrogation began at 11:05 p.m., with defendant stating to Telep that he, "Kenyata, and T" were the ones who committed the armed robbery of the BP gas station on Route 46 west in Lodi. "T" drove a Ford Escort that they had "got[ten] from Paramount [presumably Fairmount] Truck Rental" to the gas station. Defendant sat in the back seat while Kenyatta sat in the passenger's seat. They wore dark clothes and had their faces covered. Defendant had his ".22 long rifle, Smith & Wesson," while Kenyatta and T were unarmed. When they parked at the gas station, the attendant approached the car. Defendant pointed his gun at the man, and told him: "don't move." The attendant ran away without giving them money.
Against these facts, defendant, through assigned counsel, now raises the following arguments.
THE DEFENDANT'S ARREST WAS ILLEGAL BECAUSE THE ARREST WARRANTS WERE NOT JURATED UNTIL DAYS AFTER HE WAS IN FACT ARRESTED AND THUS ANY STATEMENT HE MADE OR EVIDENCE SEIZED MUST ALSO BE SUPPRESSED.
THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT VOLUNTARILY WAIVED MIS [SIC] MIRANDA RIGHTS.
THE TRIAL COURT ERRED BY NOT SUPPRESSING THE EVIDENCE THAT WAS TAKEN FROM THE APARTMENT AT 45 LINDEN STREET AS CONSENT WAS NOT GIVEN, MAKING THIS WARRANTLESS SEARCH ILLEGAL.
THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A JUDGMENT OF ACQUITTAL.
THE TRIAL COURT ERRED BY NOT GRANTING THE DEFENDANT'S MOTION FOR A MISTRIAL, AS THE ERRORS COMMITTED WERE NOT AMENABLE TO CURE.
THE CHARGE TO THE JURY IN ITS ENTIRETY, INCLUDING THE MANNER IN WHICH THE COURT RESPONDED TO JURY REQUESTS FOR CLARIFICATION, WAS CONFUSING, MISLEADING AND PREJUDICED THE DEFENDANT.
THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE DEFENDANT IS ENTITLED TO A NEW TRIAL.
THE CONDUCT OF THE PROSECUTOR, WHICH EXCEEDED THE BOUNDS OF PROPER ADVOCACY, DENIED THE DEFENDANT A FAIR TRIAL.
THE TRIAL COURT ERRED BY REFUSING TO ALLOW OFFICER KEATING TO TESTIFY.
THE COURT ERRED BY NOT ALLOWING THE DEFENDANT TO PARTICIPATE IN SIDEBAR CONFERENCES, THEREBY DENYING HIM THE RIGHT TO A FAIR TRIAL.
THE ERRORS COMMITTED, IN THEIR ENTIRETY, DENIED DEFENDANT A FAIR TRIAL.
THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTELY EXCESSIVE.
Defendant raises the following additional argument points in his pro se supplemental brief:
THE TRIAL COURT ERRED BY NOT GRANTING APPELLANT'S SUPPRESSION MOTION WHICH WAS BASED ON AN ILLEGAL ARREST THAT RESULTED FROM LACK OF PROBABLE CAUSE WITHIN VIOLATION OF N.J. CONST. 1947 ART. 1, PAR. 10 AND U.S. CONST. IV, XIV. (Raised Below)
COMPLAINTS AGAINST APPELLANT WAS NOT SIGNED UNDER OATH IN PRESENCE OF DEPUTY COURT CLERK AND THUS, WARRANT FOR APPELLANT'S ARREST WAS DEFECTIVE AND EVIDENCE SEIZED INCIDENT TO EXECUTION OF ARREST WAS NOT ADMISSIBLE AGAINST APPELLANT; FEDERAL AND STATE CONSTITUTIONS AUTHORIZED ISSUANCE OF WARRANT ONLY BY PROPER JUDICIAL OFFICER AND ONLY UPON SHOWING OF PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIDAVIT, THAT OFFENSES HAD BEEN COMMITTED BY APPELLANT AT PLACES DESCRIBED. U.S.C.A. CONST. AMEND IV; N.J.S.A. CONST. ART. 1, PAR. 7; N.J. COURT RULE 3:3-1.
MOTION COURT COMMITTED CONSTITUTIONAL ERROR WHEN DENYING APPELLANT MOTION TO SUPPRESS. (Partial Raised Below)
WHERE NONDISCLOSURE WAS A RESULT OF NEGLIGENCE OR DESIGN, IT IS PROSECUTOR'S RESPONSIBILITY TO DISCLOSE INCORRECTNESS OF HIS WITNESS STATEMENT. (Not Raised Below)
THE TRIAL COURT ERRED BY NOT GRANTING THE MOTION FOR A MISTRIAL WHICH THE PROSECUTOR KNOWINGLY UTILIZED AND INTERJECTED PREJUDICE TESTIMONY DURING LT. NOVAK CROSS EXAMINATION.
We find no legal basis for overturning defendant's conviction, except for Counts four, ten, fourteen, twenty, twenty-six, thirty-one, and thirty-nine, dealing with unlawful possession of a rifle during the commissions of the crimes. In dismissing these convictions with prejudice, we emphasize that the State joins in this conclusion. As to sentencing, we remand for reconsideration and re-sentencing consistent with this opinion.
In the interest of clarity, we will address only those arguments which, in our view, contain sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We thus begin with Point I, attacking the legality of defendant's arrest.
The Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee the right to be free from unreasonable seizure. Absent exigent circumstances or an officer's witnessing a crime, before arresting a suspect, police must obtain an arrest warrant issued by a judicial officer on a finding of probable cause that the suspect committed the alleged crime. State v. Cleveland, 371 N.J. Super. 286, 294 (App. Div.), certif. denied, 182 N.J. 148 (2004). Warrantless arrests that are not based on exigent circumstances or on an officer's witnessing a crime are presumptively unreasonable, and violate the right to be free from unreasonable seizure. State v. Henry, 133 N.J. 104, 110, cert. denied, 510 U.S. 984, 114 S.Ct. 486, 126 L.Ed. 2d 436 (1993). The remedy for an unlawful arrest is not dismissal of the complaint or charges against the defendant, but rather suppression of the evidence obtained as a result of the unlawful arrest. Cleveland, supra, 371 N.J. Super. at 299.
Defendant's challenge here centers on whether the police obtained a valid warrant before effectuating the arrest. All of the charges against defendant involved indictable offenses. In the case of indictable offenses, the procedure begins with a complaint. R. 3:2-1.
The complaint shall be a written statement of the essential facts constituting the offense charged made on a form approved by the Administrative Director of the Courts. All complaints [with minor exceptions not relevant here]... shall be by certification or on oath before a judge or other person authorized by N.J.S.A. 2B:12-21 to take complaints.
Along with the complaint, the law enforcement officer files a warrant, or a complaint-warrant form. R. 3:2-3. "The warrant... shall be directed to any officer authorized to execute it, ordering that the defendant be arrested and brought before the court that issued the warrant." R. 3:2-3(a). No arrest warrant may be issued on a complaint unless a judge, clerk, deputy clerk, municipal court administrator or deputy municipal court administrator finds from the complaint or an accompanying affidavit or deposition, that there is probable cause to believe that an offense was committed and that the defendant committed it and notes that finding on the warrant.
Upon arrest, a law enforcement officer need not show the defendant a copy of the warrant, but the officer must inform the defendant that a warrant has issued for the defendant's arrest, and the officer must notify the defendant of the charges.
Here, Coffey (one of the arresting officers) testified at the suppression hearing conducted by the trial court that on January 1, 2005, he drafted and signed five complaints against defendant. These were the only complaints filed against defendant in relation to this case. Coffey drafted the complaints after Clarke, Durant, Parham and Sibdhannie had given police statements implicating defendant in the crimes.
The four complaints contained in defendant's pro se appendix listed his address as "406 Prospect." The other complaint listed his address as "45 Linden Street." Defendant testified that his address was 406 Prospect Street. His girlfriend and her minor daughter lived at 45 Linden Street.
According to Coffey, when he drafted the complaints, he "wasn't a hundred percent sure" where defendant lived, but he did not believe that he lived with his girlfriend. Coffey listed 45 Linden Street as defendant's address on one of the complaints because Parham and the other defendants had told Captain Lomia (Coffey's supervisor) that defendant was at his girlfriend's apartment.
After Coffey drafted the complaints, he gave them to his supervisor for review. Lomia testified that he did not believe that he reviewed the complaints, but he was aware that Coffey had drafted them. After his supervisor reviewed them, Coffey took the complaints to the "front desk." From this point, he does not know what happened to the complaints.
We will not repeat the melee that characterized defendant's arrest. We emphasize, however, that the disorder and confusion that began when defendant jumped out of an apartment window and landed on the roof of an adjacent building, is directly attributable to him. Any action taken by the police as a means of assuming control over the situation was justified by defendant's inappropriate actions intended to frustrate the presumptively lawful actions of the police. The trial court accepted, as a matter of credibility, the accounts given by the officers present, and rejected the testimony of defendant's girlfriend and minor child.
However, because the face of the warrant shows that it was issued on January 3, 2005, two days after defendant's actual arrest, we are compelled to find that the police lacked the lawful authority to arrest defendant on January 1, 2005. Under the circumstances presented here, a neutral magistrate was the only constitutional officer authorized to determine whether probable cause existed, and if so, to issue a proper warrant authorizing the police to execute it. State v. Bobo, 222 N.J. Super. 30, 34 (App. Div. 1987); R. 3:3-1(a).
Having concluded that defendant was not lawfully arrested on January 1, 2005, we must address the legal consequences that flow from this conclusion. Defendant argues that his unlawful arrest triggers an automatic exclusion of any physical evidence gathered therefrom, and suppression of any incriminating statements he may have given while unlawfully detained. We disagree.
The fruit of the poisonous tree doctrine provides that evidence obtained directly or indirectly from a violation of a defendant's State or Federal Constitutional rights must be excluded from evidence unless the State can establish that it obtained the evidence from a source that was independent of the illegal conduct. State v. Johnson, 118 N.J. 639, 651-63 (1990).
The overarching purpose of the rule is to deter the police from engaging in constitutional violations by denying the prosecution any profit from illicitly-obtained evidence. [State v. Badessa, 185 N.J. 303, 316, (2005)]; State v. Evers, 175 N.J. 355, 376, 815 A.2d 432 (2003). A corollary purpose is to uphold judicial integrity by serving notice that our courts will not provide a forum for evidence procured by unconstitutional means. See [State v. Lee, 190 N.J. 270 at 278, 920 A.2d 80 (2007)]; Badessa, supra, 185 N.J. at 311, 885 A.2d 430. Suppressing evidence sends the strongest possible message that constitutional misconduct will not be tolerated and therefore is intended to encourage fidelity to the law.
Countering that laudable policy, however, is the recognition that the exclusionary rule exacts a high price on society by depriving the jury or judge of reliable evidence that may point the way to the truth. United States v. Janis, 428 U.S. 433, 448-49, 96 S.Ct. 3021, 3029, 49 L.Ed. 2d 1046, 1058 (1976); State v. Barry, 86 N.J. 80, 87, 429 A.2d 581[, cert. denied, 454 U.S. 1017, 102 S.Ct. 553, 70 L.Ed. 2d 415] (1981). Excluding reliable evidence may vindicate the Fourth Amendment rights of a particular defendant, and more generally the privacy rights of all persons, but it also may result in the guilty going free.
Because of those competing concerns, the exclusionary rule is applied to those circumstances where its remedial objectives can best be achieved. [United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed. 2d at 561, 571 (1974)]. For example, "the exclusionary rule will not apply when the connection between the unconstitutional police action and the evidence becomes so attenuated as to dissipate the taint from the unlawful conduct." Badessa, supra, 185 N.J. at 311, 885 A.2d 430 (citations and internal quotation marks omitted); see also Lee, supra, 190 N.J. at 278, 920 A.2d 80 (explaining attenuation doctrine); Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4(a), at 234-35 (3d ed. 1996) (same). "In those circumstances, withholding from the finder of fact relevant evidence far removed from the constitutional breach is a cost not justified by the exclusionary rule." Badessa, supra, 185 N.J. at 311, 885 A.2d 430. Under both federal and state law, "the critical determination is whether the authorities have obtained the evidence by means that are sufficiently independent to dissipate the taint of their illegal conduct." State v. Johnson, 118 N.J. 639, 653, 573 A.2d 909 (1990).
In evaluating whether evidence is sufficiently attenuated from the taint of a constitutional violation, we look to three factors: "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct." Ibid.; accord Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed. 2d 416, 427 (1975). [State v. Williams, 192 N.J. 1, 14-15 (2007).]
The temporal proximity factor is the least determinative and often most ambiguous of the test. State v. Worlock, 117 N.J. 596, 623 (1990). This is so, because both closeness in time, and a long break in time, between the unlawful act and the police's obtaining the evidence may both weigh in favor of suppression. Ibid.; Williams, supra, 192 N.J. at 16. The second factor, intervening events, "can be the most important factor" because intervening events are objective indications of whether the causal connection between the unlawful arrest and the evidence has been broken. Worlock, supra, 117 N.J. at 623-24. Against the first two factors, the court considers the final factor, the flagrancy and purpose of the police misconduct. Id. at 624. The more egregious the police conduct, the more likely a court will grant a motion to suppress. Ibid.
Here, Coffey testified that after defendant was arrested at about 10:30 p.m. on January 1, 2005, Coffey and Carroll walked to the front of the apartment building where defendant's girlfriend lived and met her there. She was "emotionally upset" and wanted to know "what was going on." Coffey and Carroll briefly spoke with her, and she invited them to her apartment.
Coffey gave the following reason for entering her apartment:
Strictly just to speak with her, give her the respect if she is someone, some type of relationship to the defendant [sic], to explain the situation to her, to put her at ease.
In addition we were going to ask her if it was okay to make sure there wasn't [sic] any weapons that may be left in the apartment.
Once inside the apartment Coffey saw, in plain view, a pile of clothes lying under a window. They appeared to be men's clothing, and Coffey assumed that they belonged to defendant. The girlfriend confirmed this assumption. On the pile was a "BDU, military style" pair of black pants and a black jacket; Coffey seized all of these items of clothing. He believed that the pants matched a jacket that the Bergen County Sheriff's Department had obtained after arresting a suspect in relation to the Hackensack attempted robbery.
Coffey told defendant's girlfriend that he was concerned that there may be weapons in the apartment; she then consented for him to look for weapons, saying that she had nothing to hide. Coffey walked into the bedroom and saw a black winter cap, a blue Timberland winter cap, a backpack, a pair of black gloves and a pay stub in defendant's name. He seized those items, then returned to police headquarters around midnight.
The girlfriend, who testified at the suppression hearing, gave a totally conflicting account of what transpired. She denied going outside the apartment building to speak with police. The officers identified themselves as detectives, opened her closed, but unlocked, apartment door, and walked in without asking for her permission or consent. They told her that they were there to explain what had happened.
One of the detectives spoke with her while the other searched the apartment. Neither asked for permission or consent to search; neither showed her a search warrant, or said that they had obtained one. Two additional officers later arrived; they also searched the apartment.
According to defendant's girlfriend, this was not a quick scan of the apartment by the police. The officers were there for about an hour to an hour and a half. During that time, defendant's grandmother, mother and aunt, and his aunt's boyfriend came to the apartment. Defendant's girlfriend testified that the officers were "taking belongings, picking up stuff, moving stuff, throwing clothes here, pulling sheets off my bed, going through my closets." They told her that they were searching for evidence.
The issue ultimately came down to a credibility determination by the judge hearing the suppression motion. The judge accepted the testimony of the arresting officers, and rejected the testimony offered by defendant's witnesses. The question before us is: does defendant's girlfriend's consent, as found by the trial court, provide a legally sufficient, independent basis to admit the physical evidence seized by the police from this apartment? We are satisfied that it does.
"To justify a search on the basis of consent, the State must prove that the consent was voluntary and that the consenting party understood his or her right to refuse consent." State v. Maristany, 133 N.J. 299, 305 (1993) (citing State v. Johnson, 68 N.J. 349, 353-54 (1975)). The police need not inform the person of the right to refuse consent. State v. Brown, 282 N.J. Super. 538, 547-48, (App. Div.), certif. denied, 143 N.J. 322, (1995). "Consent may be obtained from the person whose property is to be searched, from a third party who possesses common authority over the property, or from a third party whom the police reasonably believe has authority to consent[.]" Maristany, supra, 133 N.J. at 305 (internal citations omitted).
Here, once lawfully inside the apartment by virtue of the occupant's consent to enter, the officers saw the items that they seized in plain view. State v. Johnson, 171 N.J. 192, 206-07 (2002). The hearing judge's findings, based on credibility assessments, are binding upon us absent a showing that they were "clearly mistaken." State ex rel. S.B., 333 N.J. Super. 236, 241 (App. Div. 2000).
Defendant argues that the statements he gave to various police interrogators should be suppressed because they are the fruit of his unlawful arrest, and are independently tainted by multiple violations of his rights under Miranda. Again we disagree.
As with any other evidence obtained after an unlawful arrest, statements or confessions made thereafter will be suppressed as fruit of the poisonous tree "unless the chain of causation between the illegal arrest and the confession is sufficiently attenuated so that the confession was 'sufficiently an act of free will to purge the primary taint.'" Worlock, supra, 117 N.J. at 621 (quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416-17, 9 L.Ed. 2d 441, 454 (1963)). Miranda warnings and the voluntary waiver of Miranda rights may break the chain of events, thus making the confession admissible as evidence, despite the unlawful arrest. Id. at 622. Resolution of the issue depends on the totality of the circumstances. Ibid.
Relevant factors to be considered include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047-48, 36 L.Ed. 2d 854, 862 (1973); State v. Miller, 76 N.J. 392, 402, 388 A.2d 218 (1978). An involuntary confession can result from psychological as well as physical coercion.
Miller v. Fenton, 796 F.2d 598, 603 (3d Cir.), cert. denied, 479 U.S. 989, 107 S.Ct. 585, 93 L.Ed. 2d 587 (1986). Unlike the use of physical coercion, however, use of a psychologically-oriented technique during questioning is not inherently coercive. Miller, supra, 76 N.J. at 405, 388 A.2d 218. The real issue is whether the person's decision to confess results from a change of mind rather than from an overbearing of the suspect's will. Ibid. [State v. Galloway, 133 N.J. 631, 654-55 (1993).]
Based on the record before us, we are satisfied that defendant's rights under Miranda were scrupulously adhered to by the interrogating officers. As such, the statements given by defendant under these circumstances have no connection to, and are otherwise attenuated from the unlawful arrest.
The trial court rejected, as a matter of credibility, defendant's testimony describing how he was denied food and drink, and was subjected to incessant interrogation by the police.
We next address defendant's argument with respect to the trial court's ruling precluding him from participating in sidebar conferences with counsel, by way of electronic listening equipment. Defendant argues that the court's ruling violated his right to due process, denied him a fair trial, and materially interfered with his right to counsel. We are satisfied that the court's ruling here does not require us to reverse defendant's convictions.
The right of a defendant to be present at every stage of the proceedings against him or her derives from the Confrontation Clause of the Sixth Amendment to the United States Constitution and from Article One, Paragraph Ten of the New Jersey Constitution, both of which guarantee the right to confront witnesses. State v. Whaley, 168 N.J. 94, 99-100 (2001) (citing Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed. 2d 353, 356 (1970)). The right also impacts the Due Process Clause of the Fourteenth Amendment to the United States Constitution to the extent that the defendant's absence from the proceeding would deny him a fair trial. Ibid.
To that end, Rule 3:16(b) provides:
The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence. A corporation shall appear by its attorney for all purposes. The defendant's presence is not required at a reduction of sentence under R. 3:21-10 or, except as provided in
R. 3:22-10, at a hearing on a petition for post conviction relief.
In State v. W.A., 184 N.J. 45, 59 (2005), our Supreme Court held that the right to be present at every stage of the proceedings includes participation in jury voir dire conducted at sidebar. Without a defendant's participation in jury voir dire, a defendant is unable to assess the potential jurors, to decide whether to challenge their presence on the jury, and to actively participate in the selection process. Id. at 53-56, 66-67.
Thus, the right to be present at all stages of the proceeding includes participating in jury voir dire conducted at sidebar. Id. at 59. This right is not absolute, however. It is subject to the security concerns of any given trial. Ibid. In this respect, we defer to the sound discretion of the trial judge as to what measures are necessary to protect the safety and security of court staff, the litigants and counsel, and the public at large.
To preserve security, a trial court may refuse to allow a defendant to be physically present at sidebar discussions. In those situations, the trial court "'should explore every avenue to ensure that defendants can participate in sidebars to the fullest extent possible without compromising courtroom security.'" Ibid. (quoting State v. Davenport, 177 N.J. 288, 309 (2003)). For example, the court may use electronic listening devices, or it may have defense counsel act as a conduit to relay the content of the discussions to the defendant. Id. at 59-61.
The right to participate in jury voir dire at sidebars is also subject to waiver, and will be deemed waived if the defendant does not invoke it during jury selection. Id. at 63-64. Even if the defendant invokes the right, an erroneous refusal to allow a defendant to participate in sidebar jury voir dire will not automatically warrant a reversal, as it is subject to the harmless error standard. Id. at 64-65. Thus, a defendant must establish that the error was "clearly capable of producing an unjust result" to receive a new trial. Id. at 66 (quoting R. 2:10-2).
Here, defendant participated in jury selection sidebar conferences by remaining seated at counsel's table and listening to the discussions through an earpiece. After jury selection, when the State began presenting the evidence against defendant, he requested to participate in sidebar discussions by wearing that same earpiece. Defendant argued that the same rationale that grants a defendant the right to participate in sidebars during jury voir dire should apply to grant a right to participate in sidebar conferences during trial.
The court disagreed, saying that sidebar conferences during trial are "totally different" from sidebar conferences during jury voir dire. Those during trial involve legal arguments, while those during voir dire implicate observations that form the basis of challenges. The trial court thus found no authority to support defendant's request.
Although there is no direct authority supporting defendant's request, we discern no valid reason in the record for denying a defendant this rather modest accommodation, especially when the technology was available and actually used during jury selection. We are equally satisfied, however, that there is no basis to find that the court's ruling here amounted to grounds for reversing defendant's convictions. Defendant has not shown that his failure to participate in sidebar discussions was clearly capable of producing an unjust result.
Finally, we address defendant's arguments with respect to his sentence. Specifically, defendant contends that his sentence was manifestly excessive because the court imposed numerous consecutive terms as well as an extended term of life imprisonment. He also contends that the court did not properly weigh the aggravating, mitigating and Yarbough factors in setting the sentence. We agree in part, vacate the sentence imposed, and remand for re-sentencing.
We are bound to uphold a sentence imposed by the trial court unless the court: (1) failed to follow the sentencing guidelines; (2) findings of aggravating and mitigating factors are not supported by the evidence; or (3) the application of the guidelines renders a clearly unreasonable sentence. State v. Roth, 95 N.J. 334, 364-65 (1984).
Here, the State moved for a discretionary extended sentence on the ground that defendant was a persistent offender, pursuant to N.J.S.A. 2C:44-3(a) which provides, in relevant part, as follows:
The court may, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime of the first, second or third degree to an extended term of imprisonment if it finds one or more of the grounds specified in subsection a., b., c., or f. of this section....
a. The defendant has been convicted of a crime of the first, second or third degree and is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
If the court finds a defendant eligible to be sentenced as a persistent offender, it must then weigh the aggravating and mitigating factors and set an appropriate term. State v. Pierce, 188 N.J. 155, 169-70 (2006). The term may be any term between the bottom of the ordinary sentence and the top of the extended sentence. Id. at 169.
Here, the court granted the State's motion for an extended term, noting that defendant's criminal record included the following convictions: third-degree aggravated assault; third-degree possession of cocaine and fourth-degree hindering apprehension; three counts of second-degree eluding; two counts of third-degree aggravated assault of a police officer, three counts of second-degree eluding, second-degree assault while eluding, and third-degree possession of cocaine.
Thereafter, without discussing its findings on the aggravating and mitigating factors, the court imposed an extended term of life imprisonment on count seventeen (first-degree robbery of the Garfield Easy Shop). In the judgment of conviction (JOC), however, the court found aggravating factors one (nature of the offense), two (seriousness of harm), three (risk that the defendant will commit another offense), six (defendant's prior criminal record), nine (the need to deter), eleven (the risk that the imposition of a fine or penalty without a prison term will be viewed as a cost of doing business unlawfully), twelve (victim's age being over sixty), and thirteen (use of a stolen vehicle). The court found mitigating factor eleven (hardship on his dependents). The court then concluded that the aggravating factors substantially outweighed the mitigating factor.
In addition to its application for an extended term, the State moved for the imposition of consecutive terms on two of the armed-robbery convictions. In support of the motion, the State argued that, while defendant committed six different robberies on three different days, the crimes were actually comprised of two different and discrete criminal episodes.
The decision to set consecutive sentences is within the trial court's discretion. State v. Abdullah, 184 N.J. 497, 514 (2005); N.J.S.A. 2C:44-5(a). "Under our sentencing scheme, there is no presumption in favor of concurrent sentences...." Abdullah, supra, 184 N.J. at 513. In exercising that discretion, the trial court is guided by the Yarbough criteria. State v. Miller, 108 N.J. 112, 122 (1987). Those criteria are as follows:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the accumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses. [Yarbough, supra, 100 N.J. at 643-44 (footnotes omitted from criteria 3(e) and 6).]
A 1993 amendment to N.J.S.A. 2C:44-5(a) changed criterion six by allowing unlimited accumulation of consecutive sentences.
In opposing the State's motion, defendant argued that imposition of consecutive sentences was not legally warranted because the crimes constituted one continuous course of misconduct. In rejecting defendant's argument, the court found that, in addition to other crimes, defendant committed six separate and distinct robberies over a period of four days. After each robbery, defendant took a break in time where he had time to think about what he had done; despite the opportunity to repent afforded to him by these temporal hiatuses, defendant continued his criminal activities seemingly unaffected by the pain and suffering he was inflicting on his victims.
The court thus ultimately imposed seven consecutive terms on Counts one (theft), two (armed robbery), fifteen (theft), seventeen (armed robbery), thirty-six (resisting arrest), thirty-nine (certain persons to not possess a weapon) and forty (certain persons to not possess a weapon). Other than to emphasize that each of the seven robberies were separate crimes, the court offered no explanation for choosing these specific counts, and it did not analyze the facts with reference to the Yarbough factors. After merging a number of convictions, the court imposed an aggregate sentence of life imprisonment plus forty-one years imprisonment, with 93 years, 8 months and 106 days of parole ineligibility.
We reject defendant's argument that the robberies constituted a continuous crime spree. The court's finding that each robbery was a discrete criminal event, warranting individual and consecutive sanctions is supported by the evidence, and will not be disturbed on appeal. We are satisfied, however, that in imposing consecutive terms, the court did not adequately consider and apply the Yarbough factors.
Independent of this error, we vacate the sentence and remand for re-sentencing because: (1) as the State concedes, Counts four, ten, fourteen, twenty, twenty-six, thirty-one and thirty-nine (involving unlawful possession of a rifle) should have been dismissed for lack of evidence; and (2) the court imposed two sixteen-year ordinary terms of imprisonment on two second-degree robbery convictions, thus exceeding the five-toten years range authorized under N.J.S.A. 2C:43-6(a)(2).
The balance of defendant's arguments, both attacking his convictions and challenging this sentence, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm all of the convictions, except those dealing with unlawful possession of a rifle, as more specifically described supra.
Affirmed in part, reversed in part, and remanded for re-sentencing. We do not retain jurisdiction.