On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-04-1142 and 07-04-1143.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2009
Before Judges Graves, Sabatino and Newman.
An Essex County Grand Jury indicted defendant, Brandon Meadows, under Indictment No. 07-04-1143, on one count of second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b and under Indictment No. 07-04-1142 with co-defendant, Marlin Hinnant, for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (counts two and three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count four); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (count seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count eight); and fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3f (count nine).
Defendant moved to suppress his statement to the police regarding the location of the weapon recovered from his front coat pocket. That motion was denied and a trial before a jury commenced. After some testimony during trial, defendant requested that the court reconsider its denial of the motion to suppress evidence. The court again denied defendant's motion. At the close of the State's case, the court dismissed counts three and four of Indictment No. 07-04-1142, upon the State's request. The trial judge denied the defense motion to dismiss counts one and two of Indictment No. 07-04-1142. The jury found defendant guilty of counts seven and nine on Indictment No. 07-04-1142 and acquitted defendant on all other remaining charges on this indictment. In a second trial, the jury found defendant guilty of count one on Indictment No. 07-04-1143, second-degree possession of a weapon by a convicted felon.
Declining to impose a discretionary extended term, the trial judge sentenced defendant to ten-years imprisonment with five years of parole ineligibility on count one of Indictment No. 07-04-1143 and on count seven of Indictment No. 07-04-1142, five years flat to run concurrent to the sentence on count one, and on count nine of the same indictment, eighteen months flat to run concurrent to the aforementioned sentences. The court imposed all appropriate fines and penalties. Defendant appeals. We affirm.
The relevant facts may be summarized as follows. On January 10, 2007, at approximately 11:30 a.m., two men robbed Taylor Auto Parts in Newark, holding an employee, Paul Burnell, at gunpoint. Burnell testified that he was on the telephone when a black male entered the shop, pointed a gun to his chest, and demanded cash. Another man, also armed with a handgun, approached Louis Rodriguez and Stanley Farms, two other employees who were in the shop at the time. Burnell turned over two bundles of cash wrapped in red rubber bands, totaling approximately $4,000 to the gunman. Burnell testified that this was his usual method of carrying cash, but that he usually used brown rubber bands.
Though Burnell was unable to identify the gunmen in court, he testified that one of the men had dreadlocks. In a statement to police, he described one gunman as "a black male, about 6'2" in height, in [h]is [thirties], wearing a black puffy jacket, blue jeans... [with a] scruffy face with pock marks, armed with a black handgun." Burnell described the second gunman as "5'10" in height, wearing dark clothing."
The robbery lasted three to five minutes; the gunmen then left the store. Burnell did not see whether the men walked, drove, or ran away; neither did he see in which direction they headed. Rodriguez and Farms, however, saw the men walk away, and they exited the store, approximately a minute and a half after the gunmen, to pursue them.
According to Officer Manuel Velez of the Newark Police Department, the Newark Police Department received a report of a robbery in progress at Taylor Auto Parts at approximately 11:26 a.m. Velez responded to the scene. Burnell told Velez that he had been robbed, and he provided Velez with a description of the perpetrators.
Meanwhile, Farms and Rodriguez drove around the area looking for the gunmen. After driving for about five blocks, Rodriguez noticed a car, with two black males inside, one of whom had dreadlocks, pull in front of Farms's and Rodriguez's vehicle. Rodriguez believed that the men inside the car were the same men who had robbed the auto shop. They followed the car to Martin Luther King Boulevard and High Street, where the two occupants of the vehicle exited and walked to the front of a building in the middle of the block. Farms and Rodriguez drove past the building to the end of the block, keeping the men in sight.
At that time, Detective Frank Martinez of the Newark Police Department was driving to the courthouse in an unmarked police vehicle with Detective Rafael Ramos in the passenger seat and two other detectives in the back seat. All of the detectives were wearing "plain clothes." While stopped at a traffic light on the corner of Martin Luther King Boulevard and Spruce Street, Rodriguez and Farms flagged down the officers. Rodriguez told the detectives that Farms had been robbed and that the men who had robbed them were down the street. The officers then followed Farms's and Rodriguez's vehicle until Farms and Rodriguez screamed and pointed out two men standing on the street to the officers.
After Farms and Rodriguez pointed out the two men they believed to have robbed the store, Ramos exited the vehicle. The suspected robbers, one of whom was defendant, were walking northbound on Mohammed Ali Avenue. Ramos ordered them to stop, and the men ran away. Ramos did not recall whether he verbally identified himself as a police officer; Ramos's police badge was displayed, however, as he wore it around his neck. Ramos chased defendant.
At a pre-trial suppression hearing, Ramos testified that he did not have his gun drawn when he approached and chased defendant. At trial, however, Ramos testified that he drew his weapon when defendant began running. Defense counsel pointed out this discrepancy in testimony to the jury.
Due to an error with the tape recording of the pre-trial suppression motion hearing, the transcript is not clear as to whether Ramos testified that he had never lost sight of defendant during the chase. The motion judge, however, indicated in his ruling that the court believed Ramos had lost sight of defendant at some point during the chase.
At trial, after Ramos testified that he never lost sight of defendant, the prosecutor stipulated to that fact. The defense argued that at the suppression hearing, the court was under a misimpression as to whether Ramos had lost sight of defendant during the chase and admitted the evidence at issue under the public safety exception to the Miranda*fn1 ruling because of that misimpression.
A uniformed Newark police officer, Willie Caldwell, responded to Martin Luther King Boulevard when he heard reports of persons with a weapon over the police radio. He also participated in the chase of defendant. Caldwell and Ramos approached defendant from different directions, meeting at 751 Martin Luther King Boulevard. Ramos and Caldwell followed defendant into the basement of the building at that address. Ramos testified:
We found [defendant] in the back -- he was at the back part of the laundry room. That's when I ordered him to come out with his hands up, ordered him on the ground, approached him, cuffed him, turned him over for a pat down. Then I asked him where was the gun, and he told me that the gun was in his right coat pocket.
Ramos also described the chase during testimony at the pre-trial hearing:
We chased him into... that basement laundry room. He was caught in the back. He didn't have no way out. At gunpoint we ordered him to put his hands up. We ordered him to lay down on the ground as we deemed it was cleared at that point. We proceeded to handcuff him. I flipped him over for a patdown [sic] at that moment because of... the allegation of the robbery and the gun possession.... I proceeded to do a patdown [sic] and I asked him if he had --where was the gun. At that moment he said it was in his right coat pocket. I reached in the right coat pocket and pulled out a gun, a loaded weapon.
Ramos had not read defendant a Miranda warning prior to asking him where the gun was. Ramos retrieved a.45 caliber handgun, loaded with hollow point bullets, from defendant's right coat pocket. Defendant did not have a permit to purchase or carry a firearm. Police also recovered $2,400 in $100 bills wrapped in red rubber bands on defendant's person.
Officers Miguel Sanabria and Manuel Soto arrested co-defendant, Marlin Hinnant. Following the arrest, Farms identified defendant and Hinnant as the men who robbed the auto parts shop.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT IMPROPERLY PERMITTED THE STATE TO INTRODUCE A STATEMENT BY THE DEFENDANT MEADOWS REGARDING THE LOCATION OF THE GUN USED IN THE ALLEGED ROBBERY SINCE THE STATEMENT WAS MADE WHILE HE WAS IN CUSTODY AND WITHOUT A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER OF HIS FIFTH AMENDMENT RIGHTS TO REMAIN SILENT AND TO HAVE COUNSEL PRESENT AFTER ADEQUATE ADVICE. THE MIRANDA VIOLATION DOES NOT FALL WITHIN THE "PUBLIC SAFETY" EXCEPTION, AS MEADOWS WAS HANDCUFFED, IN CUSTODY, IN A CLEARED, SECURED, NON-PUBLIC, AREA OF THE BASEMENT OF A BUILDING.
THE TRIAL COURT'S RULINGS WERE NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL OR CREDIBLE EVIDENCE. THE CONCLUSIONS OF THE TRIAL JUDGE MISAPPLIED THE LAW AND IGNORED MANIFEST INCONSISTENCIES IN THE RELEVANT EVIDENCE, AS TO OFFEND THE INTERESTS OF JUSTICE.
THE COURT ERRED IN SENTENCING BY ENGAGING IN A SIMPLE QUANTATIVE ANALYSIS OF MITIGATING v. AGGRAVATING FACTORS AS VERSE [SIC] A QUALITATIVE ANALYSIS OF ALL FACTORS AS A WHOLE, ...