On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-00512.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2009
Before Judges Skillman, Fuentes and Gilroy.
In June 2006, a Union County Grand Jury charged defendant R.S. with committing second-degree aggravated assault by recklessly causing serious bodily injury to another, N.J.S.A. 2C:12-1b(1) (count one); second-degree aggravated assault by attempting to cause serious bodily injury to another, N.J.S.A. 2C:12-1b(1) (count two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3 (count three). Defendant filed a motion seeking to suppress the videotape statement he gave to the police on December 2, 2005. On June 14, 2007, the trial court granted the motion in part and denied the motion in part.
A jury convicted defendant of counts one and three, and of simple assault, N.J.S.A. 2C:12-1a, as a lesser-included offense on count two. On September 28, 2007, the court sentenced defendant on count one to an eight-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year period of parole supervision upon release. After merging count two with count one, the court sentenced defendant on count three to a five-year term of imprisonment, concurrent with the sentence imposed on count one. The court also ordered defendant to pay restitution in the amount of $11,637.95 for the victim's medical bills. Lastly, the court directed defendant to pay all appropriate fines and penalties.
On appeal, defendant argues:
THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO SUPPRESS THE DECEMBER 2, 2005 STATEMENT WAS BASED UPON ERRONEOUS FINDINGS OF FACT AND MISAPPLICATION OF CONTROLLING FEDERAL AND STATE LAW WHEN IT RULED THAT THE STATE DID NOT VIOLATE THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CONCOMITANT COMMON LAW RIGHT UNDER STATE V. HARTLEY[*fn1 ] BY FAILING TO SCRUPULOUSLY HONOR [DEFENDANT'S] INVOCATION OF HIS PROTECTION FROM SELF-INCRIMINATION.
THE ENTIRE STATEMENT OF DEFENDANT SHOULD HAVE BEEN PRECLUDED FROM USE AT THE TIME OF TRIAL BECAUSE AFTER DEFENDANT INVOKED HIS MIRANDA*fn2 RIGHTS, DETECTIVE JOHNSON FAILED TO RE-MIRANDIZE DEFENDANT, THUS MAKING THE ENTIRE STATEMENT [INADMISSIBLE] AT THE TIME OF TRIAL.
THE DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW).
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
THE JUDGE'S DECISION TO ORDER DEFENDANT TO PAY RESTITUTION WAS [MADE WITHOUT] REFERENCE TO DEFENDANT'S ABILITY TO PAY AND THE MATTER MUST BE REMANDED.
Defendant and A.D. are the biological father and mother of Michael,*fn3 born September 2005. Because defendant worked from home and A.D. worked outside of the home during the day, defendant served as Michael's primary daytime caretaker.
On December 2, 2005, at approximately 11:00 a.m., defendant telephone 9-1-1, advising that Michael was not breathing properly. The emergency medical technicians and the police responded. Believing that Michael was having seizures, they arranged for Michael to be transported by ambulance to Overlook Hospital in Summit. Because of the serious nature of Michael's medical problems, Overlook Hospital immediately transferred Michael to Morristown Memorial Hospital where he was admitted into its pediatric intensive care unit. Michael remained a patient at that hospital until December 22, 2005.
While at Morristown Hospital, Michael was diagnosed as suffering from a fracture of his left clavicle; multiple posterior fractures of the fifth, sixth and seventh left ribs, and of the fifth and seventh right ribs; a retinal hemorrhage; seizures; fractures of both the left and right sides of his skull; subdural hemmatomas; a laceration of his liver; a contusion to the lower portion of his right lung; and a questionable fracture of the right tibia. The injuries to Michael's skull, liver and the posterior fracture of his seventh right rib were acute, that is, they happened within seven to ten days of his admittance into the hospital. The other multiple rib fractures showed evidence of calcium formation, indicating that the injuries had occurred more than seven to ten days before his admittance.
Because of the nature of Michael's injuries and because the diagnostic tests disclosed that his injuries had occurred on at least two separate days, Doctors Jeanne Annette Craft, a pediatric intensivist, and Sean T. Calhoun, a radiologist, opined that the injuries had been caused by non-accidental trauma. Dr. Elizabeth Susan Hodgson, who examined Michael's medical records from time of birth through discharge from the Morristown Hospital on December 22, 2005, opined that the injuries to Michael's ribs had resulted from "crush forces" to his chest on two separate occasions, and the injuries to his brain had resulted from being violently shaken. Stated differently, the doctors opined that Michael's injuries were inflicted by another.
On December 2, 2005, Detective Walter Johnson of the Union Count Prosecutor's Office and Detective Anthony Marques of the Union Township Police Department conducted a videotape interview of defendant at the Union County Prosecutor's Office. Defendant denied knowledge of the cause of Michael's injuries. He told the police he had fed Michael at approximately 5:30 a.m. that morning, and when he had checked on the child at 11:00 a.m., he saw that Michael had thrown up on himself. Noticing that Michael was not breathing properly, defendant attempted cardio pulmonary resuscitation and telephoned 9-1-1.
Following defendant's interview, the police spoke to A.D. She informed the police that she had left her home at approximately 5:30 a.m., but had not checked on Michael because she did not want to awaken him. She received a telephone call at approximately 12:00 noon from defendant at Overlook Hospital advising her of the incident. While at the hospital, defendant never told her or the hospital personnel that Michael had suffered any trauma. Nevertheless, immediately following their interviews with the police and while waiting in the hallway at the Union County Prosecutor's Office, defendant informed A.D. that he had accidentally dropped Michael earlier that day. When A.D. questioned defendant seeking a further explanation of what exactly happened, "he said he didn't want to talk about it at that point."
On December 5, 2005, the police again spoke with A.D. She informed the police that on December 3, 2005, while at Morristown Hospital, defendant told her that "he was feeding [Michael] downstairs in the basement, and after he was done feeding, he was going upstairs to put [Michael] back in ...