March 16, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DENNIS BRUCATO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-03-0623.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2010
Before Judges Fisher and Sapp-Peterson.
In this appeal, we consider defendant's arguments that the judge erred in refusing to suppress statements he made to police during custodial interrogation and in imposing a three-year discretionary parole ineligibility period. We find no merit in these arguments and affirm.
The evidence heard by the jury revealed that on February 1, 2006, D.K. appeared at the Keansburg police station expressing concerns about her daughter, A.K., who was then not quite sixteen years old. D.K. was concerned that messages on A.K.'s computer suggested she was involved with defendant. During the ensuing investigation, the police went to the home of A.K.'s best friend, who lived with both her mother and defendant. There, police found A.K. in the living room and defendant asleep in a bedroom. They complied with the officer's request that they accompany him to the police station.
At the station, defendant was asked to wait in a hallway while A.K. was interviewed. A.K. insisted defendant was just a friend and there had been no sexual contact. An officer read defendant his Miranda*fn1 rights, which defendant waived, and questioned him about his relationship with A.K. He, too, insisted they were just friends. Another officer again questioned A.K., who changed her story and acknowledged she and defendant had engaged in sexual intercourse. Defendant was confronted with this information and agreed to talk about it.
Again, defendant was advised of his Miranda rights, which he waived, following which he provided the inculpatory statement in question.
As a result, defendant was indicted and charged with three counts of sexual assault and three counts of third-degree endangering the welfare of a child. Prior to trial, he moved for, among other things, the suppression of the inculpatory statement he made to police. The trial judge heard the testimony of one of the investigating officers and defendant regarding the interrogation, and concluded that defendant had knowingly waived his right to remain silent and voluntarily gave the statement in question. At the conclusion of a two-day trial, defendant was acquitted of two of the sexual assault counts, but convicted of one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count five), and three counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts two, four and six).
On August 10, 2007, the trial judge sentenced defendant to a seven-year prison term, with a three-year period of parole ineligibility, on the second-degree sexual assault conviction (count five). The judge also merged count six into count five, and imposed concurrent five-year prison terms on counts two and four to run concurrently with the prison term imposed on the sexual assault conviction. The judge determined that defendant was entitled to credit for having served 555 days in custody.
In addition, the judge imposed a life term of parole supervision to begin on defendant's release from prison.
Defendant appealed, presenting the following arguments for our consideration:
I. THE STATEMENT TAKEN FROM DEFENDANT WAS NOT VOLUNTARILY MADE AND ITS ADMISSION INTO EVIDENCE DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION. (U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947), ART. I, PAR. 1).
A. The Characteristics of the Defendant.
B. The Interrogation Procedure.
C. The Failure to Record the Interrogation Procedure.
II. THE IMPOSITION OF A DISCRETIONARY PAROLE DISQUALIFIER WAS UNWARRANTED AND IT THEREFORE SHOULD BE VACATED.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.
At the suppression hearing, defendant asserted that his statement was involuntary because, among other things, he was not able to take medication he required for a heart condition and for a seizure condition, and that he was threatened and ridiculed by one of the officers. The judge heard the testimony of a police officer and defendant, reviewed the videotape of defendant's statement, and rendered the following oral decision:
I had a chance to see the video.... [Defendant] was treated fairly. He wasn't handcuffed. I saw that myself. He looked fine. I mean, he didn't look like somebody who was even under stress.
There obviously weren't any seizures going on and it's not a pleasant experience to be in a police station and having a quote/unquote "rape charge" facing one, but [defendant's] disability, he says he had a heart condition and some type of seizure [disorder]. He obviously, I was looking at him, he didn't take a heart attack, nor did he have a seizure.
He did not appear to me to be ill. He looked fine. A little tired, but that's about it. Even that, he seemed a lot tired, it didn't appear as though he was in need of medication, because if he missed... one pill, which apparently at that point he might have, that's certainly not going to bring on a seizure in and of itself.... But it didn't appear as though [defendant] was under any stress at all that I could see.
I have to deal with whether [defendant's] allegations against [the officer] are true; that is, that he was told -- that he... asked for a lawyer and he was told to go F himself; he wasn't going to get one, words to that effect. In fact, I just don't believe it.... I viewed the tape and I listened to everything that [defendant] had to say, the detail that was given in... [defendant's] statement at the end that he was treated fairly; that he wasn't threatened. It's obvious to me that [defendant] voluntarily confessed. I mean, he did it as a product of an essentially free  will.
I'm satisfied beyond a reasonable doubt that... the confession is knowing, intelligent, and voluntary. It was done after he [was]... advised of his Miranda rights multiple times. There was no coercion itself. It was a product of an essentially free and unconstrained free  will and an unconstrained choice. It's a voluntary statement,... [he] knowing[ly] and intelligently waiv[ed] the rights.
These findings were based upon testimony the judge deemed credible after having heard and observed the witnesses testify, and after having watched the videotaped statement given by defendant. Being fully anchored to credible evidence in the record, the judge's determination is entitled to our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999). We have been presented with no reason to second guess the experienced judge's findings, and reject the argument set forth in defendant's Point I.
We also reject the argument, contained in Point II, that the judge abused his discretion in imposing a three-year period of parole ineligibility on the second-degree sexual assault conviction. In light of defendant's past criminal history, which included two indictable convictions, the judge found the presence of aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9), and the absence of any mitigating factors. Those findings were well-established by the record and warranted the imposition of a custodial term on the second- degree conviction. Defendant argues, however, that the judge was required to undertake a different analysis when determining whether to impose a period of parole ineligibility. Certainly, it is true that there is a different analysis when considering whether to impose a period of parole ineligibility, as our Supreme Court has held:
In making this decision, the court balances the same aggravating and mitigating factors used to determine the appropriate sentence. The standard for balancing the factors, however, is different. In determining the appropriate sentence, the court must decide whether there is a preponderance of aggravating or mitigating factors. When determining parole ineligibility, by contrast, the court must be "clearly convinced that the aggravating factors substantially outweigh the mitigating" factors. The different standard reflects the fact that "[p]eriods of parole ineligibility are the exception and not the rule. They are not to be treated as routine or commonplace."
[State v. Kruse, 105 N.J. 354, 359 (1987) (citations omitted).]
In examining his analysis in passing sentence, there is no doubt that the judge recognized the different balancing that occurs in these circumstances. For purposes of ascertaining whether defendant should be incarcerated and the length of that term, the judge found that "[o]bviously, the aggravating factors preponderate." In exercising his discretion to impose a three- year period of parole ineligibility, the judge concluded that the "aggravating factors substantially outweigh the mitigating factors." We agree, as defendant contends and as the State acknowledges, that the judge could have more thoroughly explained the latter analysis. However, the record fully supports the judge's determination and, although sparse, we conclude that the judge's explanation of his analysis was sufficient.
Affirmed, but remanded solely for the purpose of entering an amended judgment.*fn2 We do not retain jurisdiction.