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State v. Brabham


April 30, 2010


On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-06-0453.

Per curiam.


Submitted September 22, 2009

Before Judges Grall, Messano and LeWinn.

A jury found defendant Orion T. Brabham guilty of second-degree burglary, N.J.S.A. 2C:18-2a(1), b(1), second-degree robbery, N.J.S.A. 2C:15-1a, and fourth-degree theft, N.J.S.A. 2C:20-3a. The judge merged defendant's conviction for theft with his convictions for burglary and robbery, granted the State's motion for sentencing as a persistent offender on the robbery conviction, N.J.S.A. 2C:44-3a, and sentenced defendant to a ten-year term of imprisonment for burglary and a concurrent eighteen-year term for robbery. Both sentences are subject to terms of parole ineligibility and parole supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate fines, penalties and assessments.

Defendant primarily objects to the denial of his motions to suppress physical evidence seized by a New York parole officer during a search of his home and statements he made to New Jersey law enforcement officers. Accepting the judge's factual findings, we conclude that the physical evidence was properly admitted but the statements defendant made during a meeting he requested to negotiate a plea should have been excluded pursuant to N.J.R.E. 410.


At about half-past eight on the morning of February 21, 2006, Catherine Zahos heard a noise on the second floor of her home, which is located on Martinsville Road in Basking Ridge. After she called upstairs to find out who or what she had heard, a man she did not know ran down the staircase carrying a bundle. As he reached Zahos, he grabbed her hair and necklace, pushed her head down, dragged her to the living room and forced her to the floor. Threatening to kill her, he demanded money. He then went to the kitchen to get cash from her purse. Zahos followed and was again knocked to the floor. The intruder left with the bundle, but Zahos went outside and saw him leave in a green Altima with a New York license plate. An employee working in the Zahos family business, which is located behind the residence, also saw the man leaving with a bundle in a green Altima with a New York license plate.

When the police arrived at the Zahos home, they found damage to the rear door of the house leading from a breezeway to the kitchen and a piece of the broken lock on the kitchen floor. Zahos was shaking, smoking a lot and appeared to be "very distraught." The police were not able to obtain a fingerprint with sufficient detail to permit identification of a suspect. According to Zahos, jewelry, including a gold medallion with a starburst design on one side and a depiction of the Parthenon on the other, as well as rings, pins and crosses were taken. In addition, a.38 caliber handgun and a comforter were missing. Neither Zahos nor her employee was able to give more than a general description of the intruder or provide the number of his New York license plate.

Others saw a green Altima with a New York license plate in the vicinity of the Zahos home on the morning of the burglary. Cheryl Himmelrich, who lives about a five-to-ten minute drive from the Zahos property, was outside with her Labrador Retriever and approached the driver of a blue-green Altima with a New York license plate who backed into her driveway. He left after asking her about a family that did not live on her street. On the same morning, Debra Albanese was driving to work via Martinsville Road. She noticed a green Altima with New York plates in front of her car because it was being driven at varying speeds and saw the driver turn into a driveway and toward the back of the house. The following day, in response to a flier distributed by police stationed near that driveway, Albanese reported what she had seen.

None of these witnesses could identify defendant as the man they saw on the morning of the Zahos home invasion. The evidence linking defendant to the crimes was a gold medallion identified by Zahos as hers, which was recovered during a search of defendant's home conducted by his parole officer in New York, and statements defendant made to New Jersey law enforcement officers after he was incarcerated as a consequence of violating conditions of his parole in New York.

New Jersey law enforcement officers, who testified at trial, repeated what they recalled about statements defendant made during two meetings. In April 2006, defendant told the officers that they had done their job by finding the person that did this, meaning himself. In May, defendant told the officers that he got the idea to use the back door from a television show, described the odor of smoke in the home of an old lady, "laugh[ed] about the fact that [she] kept getting up and coming back after him," and spoke of an encounter in a driveway with a woman accompanied by a large dog that caused him to abandon his plan to burglarize a home in her neighborhood.

Defendant's testimony at trial contradicted the officers' account of their meetings and his statements. He denied meeting with them in April. Although he acknowledged a meeting in May, he contended that he was transported there from Rikers Island, could not refuse to go and, other than asking for his lawyer, had said nothing.

At trial, defendant also described his background and addressed circumstantial evidence pointing to him as the perpetrator of the Zahos burglary. He is a college graduate with a paralegal certificate and works for a real estate management company in Larchmont. He collects jewelry, is part Greek and acquired his gold medallion while visiting family in Greece. He lives with his wife and daughter. His lawyer introduced a "Navy" ring, which was seized by the parole officer along with Zahos's gold medallion, and defendant testified that the ring was a gift from his father-in-law. He also explained that the Altima is his wife's car, and during the work week she leaves it at a ferry terminal.*fn1

The jury found defendant guilty of burglary, robbery and theft of property with a value in excess of $500 but not guilty of taking a gun from the Zahos residence.


Defendant challenges the search. His attorney contends:


In addition, defendant has filed a pro se supplemental brief in which he argues:


A. The search of defendant's home was done by New York Parole Officers who were acting as agents of various New Jersey Law Enforcement agencies, not to ascertain proof of parole violations, but to unlawfully seek contraband and/or evidence in aid of prosecutions for criminal activity.

B. The search of defendant's home was conducted in violation of rules and regulations promulgated by the New York State Division of Parole, New York Criminal Procedure Law, and case law developed by New York courts.

The facts relevant to defendant's challenge to the admission of evidence seized from his home were presented at a pre-trial hearing on defendant's motion to suppress. Detective Jon Burger and Lieutenant Edward Byrnes of the Bernards Township Police Department, Sergeant Sean Brown of the Long Hill Township Police Department, New York State Parole Officer John Zwaryczuk and defendant testified.


Defendant was identified as a suspect in the Zahos crimes through the cooperation of several New Jersey police agencies investigating a series of residential burglaries in various municipalities. When the Zahos crimes were committed on February 21, 2006, defendant was on parole for a crime committed in New York and had been charged with a burglary in Middlesex County and released on bail.*fn2 Someone who saw the perpetrator of the Middlesex burglary leave the residence provided a New York license plate number of the car and selected defendant's photograph from an array.

On March 2 and 3, 2006, Burger and Brown traveled to defendant's home in Staten Island and saw him driving a green Altima with a license plate number matching the one they had acquired. On March 3, 2006, Byrnes obtained documentary evidence confirming that the State of Virginia had issued a driver's license to defendant on February 26, 2006, but the officers knew that defendant was on parole in New York.

Defendant had been on parole for armed robbery since September 2000. His parole had been revoked for failure to comply with his 9:00 p.m. to 7:00 a.m. curfew and failure to report in December 2005, but he was again released to complete service of his sentence on parole in early February 2006 when he responded to the Middlesex charge.

On March 6, 2006, Burger and Brown met with Zwaryczuk, who was then the supervisor of defendant's parole officer. Although it is not clear from the testimony whether Burger and Brown gave Zwaryczuk a copy of the Virginia driver's license they had obtained from that state, they told him that they had learned one had been issued. They also shared the information that led them to suspect defendant was involved in a series of residential burglaries in New Jersey, including one in which a.38 caliber handgun and jewelry were reportedly stolen.

When defendant was paroled in 2000, he signed a document acknowledging his agreement to abide by specified conditions including the following:

I will permit my parole officer to visit me in my residence and place of employment and I will permit the search and inspection of my person, residence and property.

I will not leave the State of New York or any other state [to] which I am released without the written permission of my parole officer.

I will discuss any proposed changes in my residence, employment or program status with my parole officer.

I understand I have an immediate and continuing duty to notify my parole officer of any changes in my residence, employment or program status[,] [w]hen circumstances beyond my control make prior discussion impossible.

I will not own, possess or purchase any shotgun, rifle, or firearm of any type without the written permission of my parole officer. Nor will I possess or purchase any deadly weapons as defined by the penal law.

In addition, defendant agreed not to apply for or possess a driver's license without the written permission of his parole officer and to abide by his curfew.

According to Zwaryczuk, based on the information provided by Burger and Brown, he suspected that defendant had violated several conditions of his parole - leaving the State of New York without the permission of his parole officer, obtaining a Virginia driver's license without permission, possessing a.38 caliber handgun and committing burglaries in New Jersey. Zwaryczuk planned to confirm that defendant had acquired a Virginia driver's license and to "look for a gun" and "jewelry," but he did not have a description of the jewelry. Zwaryczuk determined to do a curfew check and a parole search the following morning. He arranged for other parole officers, police officers who are members of a New York warrant squad and often accompany him as "back-up" during a home visit and search, and the New Jersey officers to meet at his office the next morning. Zwaryczuk did not say why he invited the New Jersey officers to come along. They said they went to observe defendant's arrest and waited outside in conformity with directions given by an assistant prosecutor from Morris County.

Zwaryczuk gave the following testimony about the purpose of the search and the role of the New Jersey law enforcement officers. "[T]he decision to search and the search was totally [a] New York State Division of Parole search. I initiated it based on the information we had. I conducted it[;] they [the New Jersey officers] didn't orchestrate anything." When asked whether he was searching primarily for violations of defendant's parole or if the search involved the New Jersey crimes, Zwaryczuk responded: "One in the same to me. To see if he violated the conditions of his parole and being in New Jersey would have been a violation."

On March 7, 2006, Byrnes, Burger and Brown went with Zwaryczuk, other parole officers and members of the warrant squad to defendant's home. They arrived at about 6:45 a.m. as defendant and his wife were leaving the driveway. According to Zwaryczuk, the car was stopped and defendant was placed in handcuffs and advised that, although he was not under arrest, they were going to conduct a parole search. The New Jersey officers waited outside while the New York officers, defendant and his wife were in the house. According to defendant, however, two officers from New Jersey were also inside his home during the search.

Zwaryczuk found the only physical evidence introduced at trial on a computer table in the living room. Defendant's wallet contained the Virginia driver's license and the pawn shop tickets. The gold medallion and "Navy" ring were next to the computer. Because neither defendant nor his wife acknowledged ownership of the jewelry and Zwaryczuk knew that defendant's background did not include service in the Navy, he believed the jewelry was stolen and evidence of a violation of parole.

Additional items not introduced into evidence were also recovered. A New Jersey driver's license found in defendant's wallet was taken outside to the New Jersey officers who confirmed that it was one taken in a New Jersey burglary. A BB gun was found on top of the entertainment center near the computer table. The New Jersey officers linked the gold medallion with Zahos when they examined the jewelry recovered at the parole office after defendant's arrest.

On March 8, 2006, defendant pled guilty to an offense under the laws of New York based upon his possession of the New Jersey driver's license. Consequently, his parole was revoked and he was confined at Rikers Island.

On the foregoing evidence, the trial judge found that the parole officer had information that gave rise to reasonable suspicion of violations of conditions of defendant's parole - defendant's release on bail pending disposition of a charge at the time of the Zahos burglary; his acquisition of a Virginia driver's license; identifications of defendant at the scene of burglaries in New Jersey and suspicion that he had committed the Zahos burglary and taken a firearm from that home. He further determined that this was a "search for evidence of [the suspected] violations of parole" that was "rationally and reasonably related" to the parole officer's duty and constitutionally permissible under the standard adopted by the New York Court of Appeals in People v. Huntley, 371 N.E.2d 794, 797 (N.Y. 1977).

Addressing the role of the New Jersey officers, the judge found:

Here it's apparent to me, given the testimony, that the New York parole officers were not acting as New Jersey agents. The [parole] officers were following through on their reasonable suspicion that the defendant was violating his parole, his New York parole, in that he apparently was going out of state, going to Virginia, and allegations and his identi[fication] at sites of burglaries and robberies that were occurring in New Jersey. And that was a violation of their parole rules to go out of state without permission, to possess even a driver's license without permission, or in any way violate the laws that would subject a parolee to incarceration.

That the parolee is not to have a firearm. Here there were allegations with regard to a firearm being taken, and they had a duty to pursue those investigations [sic] to find out if they had a parole violation. Clearly had a strong interest in assuring that parolees within their State are compliant with all terms and conditions of parole.

The fact that some other state police agency gave them information about potential violations does not obviate New York's interest in insuring compliance with parole.


This relationship [between the agencies] does not render the New York parole officers agents of New Jersey police....

Considering defendant's claim that the search was not reasonably related to the parole officer's duty because they had adequate information to take action without a search, the judge reasoned:

There's no need for them to stop at the driveway because they could....

In order to substantiate their case on a parole violation, they had to go get evidence, and that's what they were doing when they did the home visit. The home search was to get evidence of the violations of parole, not just rumors and innuendo. And they did. They got evidence with regard to the defendant being out of state, both in the context of committing the burglaries in other locations, but also that he traveled to the State of Virginia and registered himself with a driver's license in that location.

In the context of determining whether the validity of the parole search should be assessed under New York or New Jersey law, the judge addressed the significance of the New Jersey police officers' involvement in this search. Recognizing that "antecedent mutual plan, joint operation, cooperative [action and] mutual assistance could sufficiently establish agency so as to implicate" New Jersey law but that "mere contact, the awareness of an ongoing investigation or the exchange of information" is not enough, the judge applied New York law.


Because this search was conducted without a warrant, the State must demonstrate that it falls within one of the established exceptions to the warrant requirement. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed. 2d 290, 298-99 (1978); State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S.Ct. 108, 160 L.Ed. 2d 128 (2004). Searches conducted by parole officers acting without a warrant and on grounds not amounting to probable cause have been deemed constitutional under the "special needs" exception to the warrant requirement. In Griffin v. Wisconsin, the Court held that there was no violation of the Fourth Amendment where a probation officer searched a probationer's home in conformity with a Wisconsin regulation, of which the probationer had notice, authorizing such searches without a warrant on the basis of articulable facts insufficient to establish probable cause. 483 U.S. 868, 873-76, 107 S.Ct. 3164, 3168-70, 97 L.Ed. 2d 709, 717-19 (1987). The Court determined that operation of the state's probation system presents a "special need" for supervision, beyond the state's interest in detection of crime, to "assure that [probation] restrictions are in fact observed," and the Court concluded that this "special need" outweighs the diminished reasonable expectation of privacy enjoyed by a probationer subject to the regulation. Id. at 875, 107 S.Ct. at 3169, 97 L.Ed. 2d at 718.

The "special needs" exception recognized in Griffin has been applied to a search of a parolee's home conducted by parole officers acting in accordance with state law. See State v. Maples, 346 N.J. Super. 408, 412 (App. Div. 2002) (addressing the constitutionality of a parole search conducted pursuant to N.J.A.C. 10A:26-6.3(a), which requires reasonable suspicion of a parole violation and approval of the parole officer's supervisor, and discussing decisions of other jurisdictions). In fact, the Federal Court of Appeals for the Second Circuit has determined that the New York law governing parole searches, as interpreted by New York's highest court in Huntley, is constitutionally reasonable and consistent with the "doctrine of 'special needs.'" United States v. Grimes, 225 F.3d 254, 259 n.4 (2d Cir. 2000); cf. Samson v. California, 547 U.S. 843, 848, 853, 855-57, 126 S.Ct. 2193, 2197, 2200-02, 165 L.Ed. 2d 250, 256, 260-62 (2006) (approving the reasonableness of a search of a parolee conducted by a police officer pursuant to a California law requiring a parolee to consent to a search by a parole officer or police officer by relying upon a "'general Fourth Amendment approach'"); see also United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed. 2d 497 (2001) (applying the same approach and approving a search conducted by a police officer in accordance with a condition of probation imposed at the time of sentencing). The New Jersey Supreme Court has observed that "the special needs analysis" rather than Samson, "provides an appropriate framework for evaluating [a] defendant's New Jersey state constitutional claims" under N.J. Const. art. I, ¶ 7, at least with respect to suspicionless searches. State v. O'Hagen, 189 N.J. 140, 157-58 (2007).

New York law authorizing parole searches is relevant to the validity of this "special needs" search. Ordinarily, when evidence is seized by officers of another state in that state, the officers' compliance with the law of that state is immaterial to the admissibility of the evidence in a New Jersey criminal trial and exclusion is required only if there is a violation of the Fourth Amendment. State v. Evers, 175 N.J. 355, 378-80 (2003). That general rule does not govern here because application of the "special needs" analysis depends, in part, upon a parole officer's compliance with a state law that is constitutionally reasonable. See United States v. Freeman, 479 F.3d 743, 747-78 (10th Cir. 2007) (noting that "[p]arolee searches are... an example of the rare instance in which the contours of a federal constitutional right are determined, in part, by the content of state law"). For that reason, the trial judge properly considered New York law in evaluating defendant's constitutional claim.

Defendant's arguments on appeal focus on deviations from New York law that render the search invalid. We find no error in the trial judge's interpretation of New York law, which is a determination subject to de novo review. State v. Elders, 192 N.J. 224, 252 (2007).

Pursuant to N.Y. Comp. Codes R. & Regs. tit. 9, § 8003.2(d) (2010), a parolee must agree to "permit his parole officer to visit him at his residence and/or place of employment and [must] permit the search and inspection of his person, residence and property." As interpreted in Huntley, the most recent decision of New York's highest court addressing the question, a parolee's consent to parole searches as a condition of release permits only those searches that are "rationally and reasonably related to the performance of the parole officer's duty," meaning "substantially related to the performance of duty in the particular circumstances." 371 N.E.2d at 797.

The trial judge applied Huntley to the facts as he found them to be based upon the evidence presented at the suppression hearing. This court must accept factual findings that "'could reasonably have been reached on sufficient credible evidence present in the record,'" State v. Locurto, 157 N.J. 463, 472 (1999) (internal citations omitted), and defer to "credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record," id. at 474. While the judge's determination of the legal consequences flowing from the facts is not entitled to special deference, a reviewing court will not disturb a judge's application of the law to facts unless the law was misunderstood or the underlying factual findings are so clearly erroneous as to warrant intervention. See Elders, supra, 192 N.J. at 243-45, 250-51; State v. Harris, 181 N.J. 391, 419 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005); State v. Marshall, 148 N.J. 89, 185, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).

The judge's determination that this parole search was sufficiently related to the performance of the parole officer's duty to satisfy Huntley is adequately supported by the record. We recognize that some of the testimony raises questions about the substantiality of the relationship. Prior to the search Zwaryczuk had a photo copy of defendant's Virginia driver's license and did not have a description of the jewelry taken from Zahos that would enable him to identify a parole violation based upon possession of stolen jewelry. Additionally, although parole authorities in New York had long known that defendant was charged with a burglary in Middlesex County and knew, or should have known, that he was released on bail, they had taken no action to revoke his parole. Nonetheless, as the trial judge found, based upon information acquired from the New Jersey police officers the day before the search, Zwaryczuk also had reason to suspect that defendant had acquired a gun in the Zahos burglary while on parole for armed robbery. On the basis of the judge's finding relevant to the gun, we see no clear error in his determination that the relationship between a search for a firearm and the parole officer's duty was sufficient under Huntley.

Defendant relies on People v. Candelaria, 406 N.Y.S.2d 783, 785, 787 (N.Y. App. Div. 1978), for the proposition that a parole search is not reasonably and substantially related to a parole officer's duty if the parole officer has enough evidence to establish a violation without a search. In Candelaria, the parole officer's search was conducted after the parole officer had issued and arrested the parolee on a temporary detainer warrant based upon information provided by a person who witnessed the parolee threatening his neighbor with a knife; the witness did not provide a description of the knife. Id. at 785-86. The court rejected the government's attempt to justify the warrantless search as one to acquire additional evidence of a violation based on the knife-point threat, because the parole officer already had an eyewitness account of that threat and because, without a description of the knife, could not expect to find additional evidence of that threat by searching his home. Id. at 786-87. The judge's finding with respect to the parole officer's reasonable suspicion that defendant was in possession of a gun distinguishes defendant's reliance on this aspect of Candelaria.

We do not read Candelaria to support the dubious proposition that a parole search is invalid if a court later determines that the officer had sufficient grounds to detain the parolee without that search. First, that proposition would be in tension with Huntley, which involved a parole search for a gun that was conducted after the parolee had been arrested on a parole warrant. 371 N.E.2d at 796. Second, Candelaria addressed a proffered reason for a parole search that could not be accomplished - discovery of a knife of unknown description; a ruling based upon impossibility is quite different than a mandate for courts to second-guess the importance of additional evidence to the parole authorities.

Defendant also claims that this search violated additional restrictions on parole searches stated in a policy and procedure manual for parole officers discussed in People v. Daniels, 752 N.Y.S.2d 218, 223 (N.Y. Sup. Ct. 2002). The provisions upon which defendant relies require an "articulable reason" and consent of the parolee or other authorized resident. Ibid. (quoting the manual). Given the ample evidence of an articulable reason discussed above, there is no need for further discussion of that requirement. R. 2:11-3(e)(2). With respect to consent referenced in the regulation, we simply note that defendant consented to such a search as a condition of parole and rely on the reasoning and determination of the Federal Court of Appeals for the Second Circuit in United States v. Newton, 369 F.3d 659, 666 (2d Cir.), cert. denied, 543 U.S. 947, 125 S.Ct. 371, 160 L.Ed. 2d 262 (2004). In that case, the court held that the New York manual's reference to consent does not necessitate consent at the time of the search and is satisfied by the parolee's consent to a parole search as a condition of release. Ibid.

In addition, defendant raises a claim of pretext. The United States Supreme Court explained the limited relevance of "pretext" to the constitutionality of a search as follows: "the exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those purposes." Whren v. United States, 517 U.S. 806, 811-812, 116 S.Ct. 1769, 1773, 135 L.Ed. 2d 89, 97 (1996).

Assuming, without deciding, that Whren does not foreclose a claim of pretext to challenge a parole search justified under the special needs exception to the warrant requirement,*fn3 the trial judge made a factual finding that defeats the claim - Zwaryczuk searched for a parole purpose. Zwaryczuk's testimony provides adequate support for that finding, and a search done for a purpose rationally and reasonably related to the parole officer's duty is not a search done as a "ruse" to aid a criminal investigation. See ibid.

Defendant's claim of pretext rests on New York law. He relies on Candelaria and People v. Mackie, 430 N.Y.S.2d 733, 734-35 (N.Y. App. Div. 1980). Those cases do not support his position.

As discussed above, in Candelaria, a policeman arranged for the witness to Candelaria's threat by knife to give the information to Candelaria's parole officer. 406 N.Y.S.2d at 785. That police officer also suspected that within a week of Candelaria's threat he had shot and killed the same man. Ibid. After hearing from the witness and learning that Candelaria was at the police station for questioning, the parole officer went to the station and arrested Candelaria on a parole detainer warrant. Ibid. From there, the parole officer, accompanied by the investigating police officer and other parole officers, took Candelaria to his home and searched. Ibid. As the parole officers found various items of contraband, they brought them to the investigating police officer for his inspection; they stopped the search after the policeman identified bullets of the same caliber as those removed from the victim's body. Ibid. On those facts and its finding that the parole officers had no valid reason to search for a parole violation, the court reasoned that the parole officers "were acting as the agents of the police officer in his efforts to find incriminating evidence." Id. at 787.

In Mackie, a parole officer contacted the police after learning that there had been a rape in the area in which parolees under his supervision lived. 430 N.Y.S.2d at 734-35.

Although there was no evidence linking the parolee to the crime, the parole officer took the officers investigating that crime to the parolee's apartment, where a detective seized paper napkins he saw on the floor that were subsequently determined to be stained with blood of the victim's type. Id. at 734. On those facts, the court concluded that the parole officer had "[n]o evidence... connecting defendant with this crime or any other crime" or indicating the "defendant had failed to report to his parole officer or to comply with any other condition of his parole." Ibid. Thus, the court determined that the search was not substantially related to the performance of the parole officer's duties and was "unmistakably a search by police officers to obtain evidence in furtherance of a criminal investigation." Id. at 734-35.

As we understand Candelaria and Mackie, New York courts invalidate a parole search as pretextual based upon a parole officer's cooperation with police officers investigating a crime when there is no substantial nexus between the parole search and the parole officer's responsibility in the circumstance and thus no valid parole purpose. Our understanding is informed by subsequent New York cases rejecting claims of pretext. See People v. Felder, 708 N.Y.S.2d 774, 775 (N.Y. App. Div. 2000) (a case in which parole officers, with the assistance of a police officer who "provided a reasonable basis [for parole officers] to believe that defendant was selling drugs," stopped the parolee for a curfew violation and searched his car), appeal denied, 739 N.E.2d 1151 (N.Y. 2000); accord People v. Smith, 651 N.Y.S.2d 807, 808 (N.Y. App. Div. 1996), appeal denied, 678 N.E.2d 1363 (N.Y. 1997); see also Newton, supra, 369 F.3d at 667 n.3 (holding that "[t]he appropriate inquiry is whether the probation officer used the probation search to help police evade the Fourth Amendment's usual warrant and probable cause requirements or whether the probation officer enlisted the police to assist his own legitimate objectives" and finding no evidence "support[ing] a conclusion that the challenged parole search was a ploy to help police evade the Fourth Amendment warrant requirement"); United States ex rel. Santos v. N.Y. State Bd. of Parole, 441 F.2d 1216, 1217-18 (2d Cir. 1971) (rejecting a Fourth Amendment challenge to a search conducted by a parole officer to confirm or dispel suspicion raised by information from a New York City detective who had reasonable grounds to believe the parolee was "dealing" in stolen goods and accompanied the parole officer during the search), cert. denied, 404 U.S. 1025, 92 S.Ct. 692, 30 L.Ed. 2d 676 (1972).

With respect to pretext, we stress that we have no authority to substitute our view of the record for that of the trial judge when the judge's determination is supported by the record and not clearly erroneous. Locurto, supra, 157 N.J. at 471. As we find no clear error in either the judge's factual finding negating pretext - that the parole officers "were following through on their reasonable suspicion that the defendant was violating his parole" - or his determination that this "special needs" search was valid under New York law, we affirm the denial of defendant's motion to suppress.

Lest our decision be read too broadly, we stress that defendant has not presented any argument under New Jersey law based on the New Jersey officers' involvement in this parole search, and we have not addressed that issue. See State v. Jackson, 321 N.J. Super. 365, 371 (Law. Div. 1999); State v. Bollinger, 169 N.J. Super. 553, 555-56 (Law Div. 1979). Moreover, neither defendant nor the State argues that the involvement of the New Jersey police officers implicates New Jersey law. See State v. Knight, 145 N.J. 233, 259 (1996); State v. Mollica, 114 N.J. 329, 355 (1989). Defendant's argument relevant to agency is limited to urging suppression due to the claimed violations of New York law that we have rejected. Evers, supra, 175 N.J. at 376.


Defendant contends that the trial judge erred in denying his motion to preclude admission of statements he made after his arrest. On appeal his attorney raises these issues:


A. The failure to administer a complete set of Miranda Warnings requires the suppression of defendant's oral statements.

B. At the May 8, 2006 meeting, the defendant was not told that two new criminal complaints were filed against him.

C. The defendant's statements were made during plea negotiations and therefore were inadmissible.

In addition, defendant has filed a pro se supplemental brief in which he argues:


A. The prosecution introduced as evidence statements that were taken absent the required Miranda warnings, which made them inadmissible for use during the prosecution's case-in-chief.

B. Defendant was denied his right to counsel when he was forcibly produced at a New York State District Attorney's office under court order, at the request of New Jersey officials for the purpose of an alleged attorney's conference or plea negotiation without his attorney being notified or present.

C. The court below failed to hold the prosecution to its burden under the New Jersey Rules of Evidence of proving beyond a reasonable doubt that defendant was properly informed of his rights under Miranda before allowing orally made custodial statements to be admitted as evidence of guilt.


The evidence relevant to defendant's challenges to the admission of his statements was presented at a pre-trial hearing on defendant's motion to suppress. Burger, Byrnes, Brown and defendant testified. Through sharing information with other law enforcement agencies in New Jersey investigating residential burglaries involving a green Altima, the police suspected defendant committed the crimes against Zahos.

After defendant was arrested as a consequence of the parole search on March 7, 2006, he was taken to the parole office. Byrnes, who was present at the time of the arrest and went to the parole office thereafter, sat near defendant and asked to speak to him. According to Byrnes, defendant said Byrnes could speak to him but he would not say anything. Byrnes advised defendant he would have to read him the warnings required by Miranda, but defendant interrupted, saying that he knew his rights. They had no further conversation that day. By defendant's account, he invoked his right to counsel when Byrnes tried to speak to him.

Burger and Brown returned to the New York parole office to obtain reports on March 22, 2006. By that time defendant had been confined at Rikers Island on his New York sentence. Defendant called the parole office from Rikers Island while the New Jersey officers were there, and he asked to speak to them. According to Burger, he was aware that defendant was represented by an attorney and told defendant he could not speak to him, but defendant replied that his lawyer worked for him, that he wanted to speak to the police directly and agreed to meet with the officers at Rikers Island. By defendant's account, the conversation was about him getting back documents that were not part of a New Jersey case.

Burger and Brown testified that they went to see defendant at Rikers Island on April 20, 2006, but defendant denied ever meeting with the officers at Rikers Island. The officers claimed that defendant cut Brown off when he attempted to advise him in accordance with Miranda. Burger recalled defendant saying, "I know my rights. If I need my attorney at any time I know I can get one. And, you know, I don't need one now, I'm talking to you, essentially." According to Brown, defendant said "whoa, whoa, whoa, I know my rights, I know if I need my attorney, I'll get him."

The officers testified that there was no discussion of the details of the crimes that day and that they did not question defendant. Burger described the exchange as "a very one-sided conversation," in which "[i]t was basically [defendant] laying out everything that he knew." Defendant told the officers that he knew he could get three to five years for each burglary in New Jersey and how the system worked. He said he would talk to them if he could get one "State's Attorney" to go over all of the cases. When Burger warned defendant it might be difficult to get one prosecutor to handle all of the cases because the crimes were committed in different counties and not within the jurisdiction of one county prosecutor, defendant said, "[T]hat ain't your problem, that's their problem. You guys did your job, you guys found the guy that did this, you guys found me. Let them work that out." Brown's recollection of the conversation was similar: when defendant was told that there could be three or four counties involved, defendant assured the detectives it "wasn't [their] problem, that [they] had done [their] job... [,] found the person that did this."

Both officers recalled defendant being asked for the name of his lawyer. Burger thought Brown got the name, but Brown said he did not and that defendant had told them to go through him. In any event, the officers did not contact defendant's lawyer, and a second meeting was arranged.

The second meeting was held on May 8, 2006 in the office of a New York District Attorney. Burger, Brown, officers from other municipalities in New Jersey, and an assistant prosecutor from Middlesex County attended.

Brown explained that the assistant prosecutor was present because the plan was to discuss the potential for a plea bargain. Burger and Brown gave generally consistent accounts of the May 8 meeting. According to the officers, defendant interrupted efforts to advise him of his rights in accordance with Miranda. Attempts by both Brown and the assistant prosecutor evoked the same response: defendant insisted that he knew his rights and did not need to be advised and said that if he wanted to talk to his attorney he would let them know.

Both officers acknowledged that when defendant told them he knew his rights he also said that his statements would not be on the record. Burger recalled the assistant prosecutor trying to explain. He repeated their dialogue: "[A]nything you tell us here - I know my rights. I know my rights. But this is still off the record." According to Brown, however, the assistant prosecutor told defendant that "nothing was off the record and that it would, in fact, be on the record." Neither officer testified that defendant was told that what he said would be used against him.

Brown and Burger testified that defendant took control of the meeting. He asked each of the officers present where they were from and disclosed information about the crimes in their respective jurisdictions. With respect to the Zahos burglary, defendant mentioned the odor of cigarette smoke in the old lady's house, laughed a little bit and said she kept getting up and he kept pushing her down - she kept coming after him and even followed him outside.

The officers admitted that they asked defendant questions during the meeting. Burger testified that he "asked him about the.38 caliber gun, if there was one particularly taken from the residence and he said no, I don't take guns." Burger also recalled saying something about the lady being "tough," to which defendant responded, "yeah, she kept getting up and kept coming after me." Brown asked defendant if he had "done any other burglaries in the area of Long Hill Township[/]Bernards Township town line," which prompted a response from defendant describing an encounter with a "fellow" walking a dog.

By defendant's account of the May 8 meeting, the assistant prosecutor appeared to be there under the false impression that defendant had asked for the meeting. He had not asked for the meeting, did not want to attend and told all present that they would have to speak to his attorney. After that, the officers outlined the facts of the cases in their respective jurisdictions, but, beyond denying his involvement, he did not say anything. No one attempted to advise him of his rights. Defendant further testified that he knew nothing about New Jersey law and consolidation of cases involving crimes committed in separate counties prior to that meeting, but he also said that he thought the assistant prosecutor intended to work out a resolution of all of the cases in the various counties.

According to the officers, defendant eventually agreed to give a recorded statement in the presence of his attorney and gave them his attorney's name. They attempted to contact the attorney but were unable to reach him. For that reason, defendant did not give a recorded statement.

The trial judge denied defendant's motion to suppress the statements he made on several grounds. Relevant to the State's duty to deliver the advisements required by Miranda, the judge found: "The detective in this case attempted to inform defendant of his Miranda rights, but the defendant refused to listen. The court notes that in such set of circumstances, the defendant has effectively waived his right to be informed. Accordingly, the defendant is estopped from asserting his rights under Miranda."

Additionally, crediting the officers' testimony, the judge found that Miranda did not apply because there was no interrogation and defendant volunteered the statements. He explained:

I've come to the conclusion that the detectives are telling the truth....

[T]he defendant wants to run the show. That the defendant is basically orchestrating what's going to happen.

He's effectively telling them what to do. And that despite their many attempts to advise defendant of his Miranda warning, he constantly interrupts them and will not let them do it. Purposely will not let them do it. Repeatedly they try to give him the Miranda warning and consistently he interrupts them. He prevents them from giving the Miranda warning and then says what he wants to say.

The most compelling example is when he has a number of detectives from a variety of towns sitting at the DA's office with an assistant prosecutor there and the defendant tries to run the show by telling everybody, well, this is off the record, and the AP says, no, it's not, it's not off the record, everything is on the record.... [A]nd then we have a round robin,... the defendant would go down the line and as the detective[s] would introduce themselves [he would] tell what town they were from, the defendant would then go to proceed to tell them what he did in that town and describe the criminal events.

It wasn't pursuant to questioning. He wanted to orchestrate a deal... where everything was combined. And he decided that he did not want his attorney called in....

The judge rejected defendant's testimony that he was transported to the meeting, could not refuse to attend and did not speak. He found:

The most telling example of that not being the truth is that all of these people took time from all of the various towns to meet with the defendant at the DA's office.... That didn't just happen. That was orchestrated. And it was orchestrated by the defendant, frankly. So what he says to the detective is admissible.


To admit a statement obtained during custodial interrogation, the prosecution must demonstrate that the defendant was informed in accordance with Miranda and knowingly, voluntarily, and intelligently waived his or her rights. Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed. 2d 694, 726 (1966); State v. O'Neill, 193 N.J. 148, 168 (2007). "'[T]he New Jersey common law privilege against self-incrimination affords greater protection to an individual than that accorded under the federal privilege.'" State v. A.G.D., 178 N.J. 56, 67 (2003) (quoting In re Grand Jury Proceedings of Guarino, 104 N.J. 218, 229 (1986)). Thus, under the law of this State, the prosecution "'must prove beyond a reasonable doubt that the suspect's waiver [of the privilege against self-incrimination] was knowing, intelligent, and voluntary in light of all the circumstances.'" Ibid. (quoting State v. Presha, 163 N.J. 304, 313 (2000)).

In this case, the evidence the State introduced to meet its burden under the foregoing standards established a different ground for exclusion of the statements defendant made at the May 8 meeting. As defense counsel argued in the trial court and contends on appeal, the State's proofs and the trial judge's findings required exclusion of the statements pursuant to N.J.R.E. 410.*fn4 With respect to the statements defendant made during the May 8 meeting at the District Attorney's office, we fully agree.

Pursuant to N.J.R.E. 410, with exceptions not relevant here, "any statement made during plea negotiations... is not admissible in any civil or criminal proceeding against the person who made the plea or statement or who was the subject of the plea negotiations." Thus, N.J.R.E. 410 supersedes State v. Boyle, 198 N.J. Super. 64, 69-73 (App. Div. 1984), a case in which we held that statements volunteered during a plea negotiation could be admitted into evidence in a criminal proceeding. See 1991 Supreme Court Committee Comment to N.J.R.E. 410 (noting that change in the law) (reprinted in Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 410 (2009)). The rationale for this evidence rule is that "for 'plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him.'" Boyle, supra, 198 N.J. Super. at 69 (quoting United States v. Herman, 544 F.2d 791, 796 (5th Cir. 1977)).

The judge's factual findings compel us to conclude that N.J.R.E. 410 required exclusion of everything defendant said at the May 8 meeting. Accepting the State's proofs, he found: the presence of law enforcement officers at a meeting with defendant did not just happen but occurred because the meeting was orchestrated by defendant; defendant wanted to "run the show" and was "basically orchestrating what [was] going to happen"; he said "what he want[ed] to say"; and "[h]e wanted to orchestrate a deal... where everything was combined." Those findings, which are well-supported by the officers' testimony, including the State's explanation for the presence of the assistant prosecutor, do not permit any conclusion other than that defendant believed he was attending the meeting he wanted to have - a meeting to negotiate a global plea agreement resolving multiple burglaries committed in various counties.

Without any evidence that defendant was informed that the officers and the assistant prosecutor attended the meeting to collect incriminating statements to be used against defendant at trial, the facts, as the judge found them to be, required exclusion of the statements pursuant to N.J.R.E. 410. In short, we conclude that the State cannot introduce evidence to convince the court that a suspect has volunteered statements and then avoid the legal implications that flow from the proofs presented. It was error to admit these statements after finding that the statements were made under circumstances in which they cannot be admitted in conformity with N.J.R.E. 410.

To avoid confusion, we stress that we have not found a violation of N.J.R.E. 410 because the suspect hoped that cooperation would bring favorable treatment. This decision is based on factual findings of the trial judge that compel the conclusion that defendant thought he was volunteering his statements during a meeting he requested to negotiate a plea bargain.

Because N.J.R.E. 410 requires exclusion of the statements defendant made at the May 8 meeting, there is no need to consider the propriety of the court's ruling that a suspect who interrupts Miranda warnings is estopped from seeking relief on the ground that the State failed to deliver them.*fn5 It also makes it unnecessary for us to address the obvious conflict between the judge's finding that defendant was not interrogated at the May 8 meeting and the officers' testimony detailing the questions they asked. Our ruling on N.J.R.E. 410 also eliminates any reason to consider whether defendant was advised of all charges pending against him on May 8. Our silence on these issues should not be understood as an implied endorsement of the rulings or the adequacy of the State's evidence on these points.

We also stress that our reliance on N.J.R.E. 410 should not obscure the fact that the circumstances of the May 8 meeting raise a question about the validity of defendant's waiver of his right against self-incrimination. That question is whether defendant made statements at the May 8 meeting that he "would not have made had it not been for the misleading actions of the Government." United States v. Swint, 15 F.3d 286, 290 (3d Cir. 1994); see also State v. Adams, 127 N.J. 438, 442-43 (1992) (discussing the efforts made to clarify that oral statements, like written statements, could be introduced at trial); State v. Pillar, 359 N.J. Super. 249, 268 (App. Div.) (concluding that the State was obligated to dispel confusion about whether defendant's statements were on or off the record), certif. denied, 177 N.J. 572 (2003). "[P]olice officers conducting a custodial interrogation cannot withhold essential information necessary for the exercise of the privilege...." O'Neill, supra, 193 N.J. at 179. We do not address that issue because it is not necessary to our decision and defendant has not argued the point.

Because we cannot conclude that the judge's factual findings with respect to the May 8 meeting have any relevance to the meeting at Rikers Island, we turn to consider defendant's claim that Miranda required exclusion of the statement he made during the April meeting held at Rikers Island. It was during that meeting that defendant assured the officers that they had done their job and found the right person.

Miranda has no application to statements that are "volunteered." Miranda, supra, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed. 2d at 726. Interrogation triggering the State's obligation to deliver Miranda warnings requires "words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 303, 100 S.Ct. 1682, 1691, 64 L.Ed. 2d 297, 309 (1980); State v. Ward, 240 N.J. Super. 412, 417 (App. Div. 1990) (quoting Innis); see State v. Stott, 171 N.J. 343, 365 (2002) (referencing the Innis standard).

With respect to the statement defendant made at Rikers Island, the judge's conclusion that it was volunteered and not a product of interrogation is "'supported by sufficient credible evidence in the record.'" State v. Gandhi, 201 N.J. 161, 200 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). There is no evidence in this record even suggesting that either of the officers said or did anything reasonably likely to evoke an incriminating response during that meeting. By the officers' account, which is the only account, the conversation was one-sided; defendant set forth what he knew about his potential exposure and expressed his desire to have the charges resolved by one prosecutor and without his lawyer. Thus, there is no reason to disturb the judge's decision to admit the statement assuring the officers' that they had done their job. Ibid.

Defendant's claimed violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed. 2d 378 (1981), warrants no more than brief comment. R. 2:11-3(e)(2). The judge did not credit his testimony, and the officers, whom the judge believed, testified that defendant did not invoke his right to counsel at any point prior to his refusal to give a recorded statement.

In summary, we have concluded that defendant's statement assuring the officers that they had done their job and found the person who committed these crimes was properly admitted. In contrast, we have determined that the statements defendant made at the May 8 meeting were admitted in error.

That leaves us to consider whether the admission of the statements defendant made at the May 8 meeting was harmless error. R. 2:10-2. While we have no doubt that the admissible evidence is adequate to permit a conviction, it is not sufficiently overwhelming to eliminate all reasonable doubt about whether the verdict would have been different if the statements were excluded. State v. Castagna, 187 N.J. 293, 312 (2006); see Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed. 2d 705, 710-11 (1967). The statements at issue provided additional and persuasive evidence of guilt. The likely impact on jurors who heard the officers repeat defendant's recitation of facts disclosing his familiarity with the Zahos home and the victim's response to her attacker is too apparent to require elaboration. Accordingly, we conclude that defendant's conviction must be reversed and the case must be remanded for a new trial.


Defendant raises additional issues on appeal. The following claims are presented in a brief submitted by his attorney:




In addition, defendant argues:




The only objection defendant raises to the judge's evidentiary rulings under N.J.R.E. 404(b) is to the admission of Cheryl Himmelrich's testimony. After considering that testimony, we find no error and conclude that defendant's argument lacks sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2). We note that most of the other evidence tending to show defendant's involvement in other crimes was introduced as a result of tactical decisions made by the defense that may be rethought during a second trial.

Defendant's claim that the State's evidence was inadequate to support a finding of guilt has no merit. The admissible evidence was undoubtedly sufficient to permit the jurors to find each element of second-degree burglary and robbery beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459 (1967). That evidence includes: the broken lock on the Zahos door; Zahos's description of the multiple attacks by the intruder during the course of the theft and his flight from her home; her description of the perpetrator's car, which matched the car owned by defendant's wife; her identification of the medallion found in defendant's home; and defendant's admission of guilt, which was implicit in his statement assuring the officers that they had done their job by finding him.

Given our decision to reverse and remand for a new trial, we decline to consider defendant's additional claims.

Reversed and remanded for further proceedings in conformity with this decision.

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