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State v. Brucato

March 16, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DENNIS BRUCATO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-03-0623.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. ...


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