On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-02-0621.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2011
Before Judges Fuentes, Ashrafi and Nugent.
Defendant Charles Joseph Bosch pled guilty to one count of second degree burglary, N.J.S.A. 2C:18-2, pursuant to a negotiated plea agreement.*fn1 The court sentenced him to a term of seven years with an eighty-five percent period of parole ineligibility and three years of parole supervision as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and imposed the mandatory fines and penalties. Defendant now appeals from the order of the trial court denying his Miranda *fn2
motion to suppress an incriminating statement he gave while in police custody. We affirm.
As part of the plea hearing conducted by the court, defendant admitted that on August 16, 2007, he, Adam Hawkins, and Joel Otero were in the Township of Pennsauken and entered a residence, without license or permission from the lawful occupants, with the purpose of stealing money from one of the residents. Defendant was armed with a .38 caliber revolver at the time he committed this crime.
For the purposes of this appeal, defendant does not challenge that he, Hawkins, and Otero entered the residence and demanded to know the whereabouts of a young man who allegedly lived at the house. When they were told that the man they were looking for was not present, a struggle ensued between the intruders and two residents of the home. Eddie Espada was one the residents involved in the struggle. As Espada ran out of the house, defendant shot him. The projectile (later determined to be a "target load") grazed Espada.
Before pleading guilty, defendant moved before the trial court to suppress a statement he gave while in custody at the Pennsauken Police Station. Pennsauken police Sergeant Michael Basileo and Patrolman William Monroe testified as witnesses for the State at the hearing conducted by the court to consider defendant's motion. Defendant testified for the defense.
According to Basileo, on August 16, 2007, he was off duty at his residence when he was called to assist in the investigation of a home invasion in which "someone [had been] shot." He reported to the Pennsauken Police Station at approximately 1:30 a.m., where defendant and his two cohorts were detained. Sometime thereafter, Basileo walked to the holding cell where defendant was being held and escorted him upstairs to an interview room located in the Detective Division. The interview room is equipped with a video and audio recording device. Consistent with standard operating procedures, Basileo had turned the recording system on before defendant's arrival to ensure that it was working properly.
In response to the prosecutor's questions, Basileo identified two "Miranda Rights Forms" used by the Pennsauken Police Department that contain the standard constitutional language against self-incrimination and regarding the right to counsel, commonly known as "Miranda warnings." The Form identified as "exhibit one" was signed by Patrolman Monroe and indicated that the officer "Mirandized" defendant at 1:00 a.m. on August 16, 2007.
Basileo explained the term "Mirandize" to mean that the officer read the rights contained in the Form to defendant. The record before us includes a copy of exhibit one, which shows not only the five Miranda rights, but also the word "yes" after each one, i.e., "You have the right to remain silent. Do you understand this? Yes." The Form also contains the word "HOWEVER" (capitalized in the document) followed by this statement and question:
You may waive the right to advise [sic] of counsel and your right to remain silent, and you may answer questions or make a statement without ...