On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 02-09-0857.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2009
Before Judges Miniman and Waugh.
Defendant Matthew Street appeals his conviction on one count of first-degree carjacking, contrary to N.J.S.A. 2C:15-2(a), as well as the resulting sentence of fourteen years in state prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
We discern the following facts and procedural history from the record.
Street and Kyle Smalfus, along with their respective girlfriends, Angela Milcarek and Nicole Rodilosso, had been camping in the Port Elizabeth area of Cumberland County on August 11, 2002. Street, Smalfus and Rodilosso had been drinking brandy and using prescription drugs at the campsite. According to Milcarek, the other three had been drinking and doing drugs "all day." The group eventually decided to leave the campsite to obtain some marijuana.
Milcarek drove Street's car when the foursome left the campsite. The car broke down before they reached the highway. They pushed the car to the side of the road near an Applebee's. A police officer arrived at the scene and assisted them. The car was eventually restarted, but broke down again across the road from a Wawa. They parked the car in the parking lot of an adjacent doctor's office. Street and Smalfus walked across the road to the Wawa, while Milcarek and Rodilosso stayed by the car.
According to Smalfus, when they reached the Wawa, Street suggested that they steal a car with the keys inside. Street walked around looking for such a car. Shortly afterward, the victim pulled up to the Wawa in a 1993 Toyota Corolla and went into the store. When the victim came out of the store, Smalfus told the victim about the breakdown and asked if he would give them a ride two or three exits down Highway 55. Feeling sorry for them, the victim agreed to give them a lift.
Smalfus and Street signaled Milcarek and Rodilosso to join them at the victim's car. According to Smalfus:
As [the girls] started walking over, I said to [Street], "This guy is not going to take us to Camden, you know?" And [Street] stated, "Well, let's just take his car, get him for his car." I said, "All right. Well, how we going to, you know?" Then as the girls were getting in the car, I said, "[Street], give me your lighter." He handed me a lighter."
And then as -- after he handed me the lighter he -- while he was getting in the passenger's side I was getting behind the driver and the two girls were getting in. And as [Street] looked at me, I had the lighter in my hand and I said, I gave him a motion, and I was like, "I'm going to," we sort of nodded at each other. I was trying to tell him I was going to stick it to his back when we pull over. Right before that, Matt said, you know, "I'm going to tell him to pull over. I got to piss and we're going to take his car." We had to find a way to do it.
All four got into the victim's car, with Street in the passenger seat and Smalfus, Milcarek, and Rodilosso in the back seat.
Soon after the victim drove onto Highway 55, Street told the victim he had to relieve himself and asked him to pull the car over to the side of the road. According to the victim, once he had pulled over, Smalfus drew a gun and put it to the back of his neck. Smalfus and Street started yelling at the victim: "Get the f-ck out of the car." He complied with their demand.
After they drove off, Smalfus showed Milcarek and Rodilosso that the "gun" he had threatened the victim with was just a lighter he had held under his t-shirt. Street drove the car to Camden, where they tried unsuccessfully to sell the car for crack cocaine. Smalfus subsequently bought crack and smoked it with Street and Rodilosso.
Street then drove Smalfus and Rodilosso to Rodilosso's apartment. He and Milcarek drove back to Port Elizabeth. When they saw no one at the campsite, they drove toward Street's home. Street left the car in a parking lot behind a card store and hid the keys in the dirt under a log. The next day, Milcarek and two other individuals assisted Street in driving the victim's car to Philadelphia, where they abandoned it. Street and Milcarek then went to retrieve Street's car from the doctor's parking lot.
In the interim, the carjacking had been reported to the police. In addition, Street's car had been towed from the doctor's parking lot. When Street and Milcarek were unable to locate the car where they had left it the night before, Street contacted the police. Officer Ronald Garvey, a patrolman with the Vineland Police Department, was dispatched to the scene around 3:30 p.m. that afternoon. He met Street and Milcarek in the parking lot. By that time, however, Garvey had been briefed about the carjacking the previous night, and was aware that Street was a suspect.
Street told Garvey that the car had broken down twice the previous day, once near the Applebee's and then again near the parking lot, and that he had left the car in the parking lot overnight, but that it was no longer there. Street had called the police to find out whether it had been stolen or towed. Garvey suggested that Street come to the police station.
Street went to the station with Garvey and was seated in the report room.*fn1 Garvey told Street that he would investigate the whereabouts of Street's car. Garvey then informed his supervisor and the detective bureau that he had a suspect for the carjacking at the station.
According to Street's testimony at the Miranda*fn2 hearing, Garvey told Street that he should fill out a missing car report at the police station. Street testified that, after being taken to the station and seated in the report room, Garvey took information from him about his missing car. Street stated that Garvey went to show the report to the police chief, and that when Garvey returned, he handcuffed Street to the wall. Street testified that he had felt that he was free to leave up until he was handcuffed.
Street testified that the Miranda rights were read to him after he was handcuffed. He refused to sign the release and asked for a lawyer. Street explained that he did not sign the release because he did not understand what he was being charged with. According to Street, after he refused to waive his Miranda rights, Garvey told him that he would be charged with filing a false report.
Street also asserted that another police officer spoke to him at that time, and that it might have been the officer who helped him the first time the car broke down the previous night.
It is unclear from Street's testimony whether this other officer spoke to him before or after he requested an attorney. Street testified that the officer had asked him questions about the carjacking and whether he was responsible.
Street testified that Garvey left the area for forty-five minutes. When Garvey returned, Street told him that he wanted to make a statement because he was scared that he would be charged with filing a false report. During his testimony, Street also stated that he had been under the influence of heroin when he was at the police station, having ingested the substance in the doctor's parking lot shortly before Garvey arrived.
At the Miranda hearing, Garvey testified that he reviewed the carjacking report after seating Street in the report room. Garvey then spoke with Milcarek, who said that she had been with Street when his car broke down the preceding night. Garvey returned to Street, who told him that he had been with a female named Stacey Smith at that time. Garvey then went back to Milcarek and asked her why Street had said he was with someone else. Milcarek could not explain the discrepancy. Garvey testified that he then returned to Street and read him the Miranda rights.
Garvey testified that Street refused to sign the Miranda release. He nevertheless asked Street why he would say he was with someone other than Milcarek. According to Garvey, Street replied that he did not want to get Milcarek "in any trouble." Garvey then proceeded to question Street about what took place at the Wawa. Street told Garvey that he wanted an attorney and did not want to answer any more questions. According to Garvey, he then refrained from questioning Street any further.
Garvey testified that Street later asked if Garvey had any other questions and told Garvey that he would like to make a statement about the carjacking. Garvey said that he did not question Street between the point at which Street asked for an attorney and the time Street asked to give a statement. Garvey read Street the Miranda rights a second time, and Street signed the Miranda release at 4:40 p.m. Street then made a statement about the events of the previous evening, including the carjacking.
Garvey testified that he did not actually detain Street until he had received the inconsistent information from Street and Milcarek. He did not recall whether or not he had handcuffed Street at that time, but stated that Street was not free to leave the report room from that point on. ...