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State of New Jersey v. Edward B. Kraszewski

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 5, 2011

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
EDWARD B. KRASZEWSKI, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-08-1448.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 8, 2011

Before Judges Axelrad and Lihotz.

On our leave granted, the State appeals from a January 20, 2010 Law Division order granting defendant's motion to suppress entered following an evidentiary hearing. We affirm.

These facts are gleaned from the testimony provided during the suppression hearing. On July 3, 2009, at approximately 3 a.m., defendant requested police assistance to remove someone from his residence. Uniformed Officers Matthew Haras, Milan Patel, and Peter Corforte responded to the scene and Sergeant Frank Tortoriello arrived later.

Ray Bisogno, who was standing outside the residence, told the dispatched police officers he was friends with defendant, the homeowner, and they had had an argument. Bisogno stated he needed his keys to leave. Officer Patel stayed with Bisogno while Officers Haras and Corforte went inside the home. Officer Haras spoke to defendant in the living room and Officer Corforte spoke to his girlfriend, Kimberly Skarzenski, in the kitchen. The record does not clearly describe the nature of the verbal altercation between defendant and Bisogno. After approximately fifteen minutes, Bisogno revealed for the first time that defendant pointed a gun at him and directed that he leave defendant's property. Officer Patel related this to Officer Corforte, who approached Skarzenski with the information. She confirmed defendant had drawn a weapon; however, she did not believe it was loaded.

At that point, Officers Haras, Corforte and Patel conferred with Sergeant Tortoriello. Next, Officers Haras and Corforte confronted defendant asking, "Where's the gun?" Defendant replied it was in the bedroom, walked the officers to the bedroom and admitted the gun was under his pillow. Lifting the pillow, Officer Corforte recovered a black semi-automatic hand gun and a magazine. Defendant was placed under arrest and charged with aggravated assault, N.J.S.A. 2C:12-1(b)(4).

Prior to trial, defendant moved to suppress the handgun and his statements. The court heard testimony from Officers Corforte and Haras. Both officers described the timeline of events and acknowledged no-one had administered Miranda*fn1 warnings to defendant prior to the inquiry that led to the discovery of the weapon.

Judge Bradley J. Ferencz found both officers were "credible[,] believable[,] hard-working[,] conscientious and acted in what they felt to be an absolutely appropriate investigative manner" and in "good faith." Nonetheless, Judge Ferencz granted the motion to suppress, finding probable cause was established by two independent sources of information, allowing the officers to interrogate and hold defendant so that objectively, defendant was not free to leave.

On appeal, the State challenges the court's determination that defendant was in custody when questioned about the gun. Emphasizing the familiarity of the surroundings and that the limited duration of events belied defendant's view that he was not free to leave, the State argues the court's finding that defendant was detained or restrained must be reversed.

"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Robinson, 200 N.J. 1, 15 (2009) (internal quotations and citations omitted). However, "a reviewing court owes no deference to the trial court in deciding matters of law. When a question of law is at stake, the appellate court must apply the law as it understands it." State v. Mann, 203 N.J. 328, 337 (2010) (internal citations omitted).

As a threshold matter, Miranda warnings are required when a person is subject to "custodial interrogation." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. The warnings are designed to inform a suspect of the protections against self-incrimination that are afforded by the Fifth Amendment to the United States Constitution. See U.S. Const. amend. V (providing in part that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself"). See also State v. Hartley, 103 N.J. 252, 260 (1986). "In New Jersey, the privilege is derived from the common law and is codified in our statutes and rules." State v. P.Z., 152 N.J. 86, 101 (1997). See also N.J.S.A. 2A:84A-19; N.J.R.E. 503.

Here, no Miranda warnings were given, thus we examine whether defendant's right against self-incrimination was infringed by the officers' questioning under the circumstances described, such that defendant's statement may not be used in the prosecutor's case-in-chief. Hartley, supra, 103 N.J. at 275. Our Supreme Court has defined the necessary examination as follows:

The predicate requirements of Miranda are that the defendant must be in custody and the interrogation must be carried out by law enforcement. [Miranda, supra, 384 U.S.] at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. Miranda turns on the potentially inquisitorial nature of police questioning and the inherent psychological pressure on a suspect in custody. Id. at 445-58, 86 S. Ct. at 1612-19, 16 L. Ed. 2d at 707-14. [P.Z., supra, 152 N.J. at 102.]

The determination of whether a defendant is in custody at the time of his questioning is an objective determination that requires an examination of the totality of the circumstances. Ibid.; State v. Pierson, 223 N.J. Super. 62, 67 (App. Div. 1988). The determination "'depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.'" State v. O'Neal, 190 N.J. 601, 615-616 (2007) (quoting Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994)). Critical to a determination of custody is "whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of interrogation, the status of the interrogator, the status of the suspect, and other factors." P.Z., supra, 152 N.J. at 103. "A custodial interrogation by law enforcement officers is inherently coercive, automatically triggering the Fifth Amendment privilege against self-incrimination." Id. at 102. See also J.D.B. v. North Carolina, __ U.S. __, __, __ S. Ct. __, __, __ L. Ed. 2d __, __ (2011). "By its very nature, custodial police interrogation entails 'inherently compelling pressures.'" J.D.B., supra, at __, __ S. Ct. __, __ L. Ed. 2d __ (quoting Miranda, 384 U.S. at 467, 86 S. Ct. 1624, 16 L. Ed. 2d 719).

[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. [Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 308 (1980).]

In this matter, the State suggests that because defendant was in familiar, safe surroundings -- his own home -- he would not believe he was in custody. The State also reasons no detention occurred because defendant called the police seeking assistance in removing Bisogno and would have anticipated answering questions regarding the incident, including inquiries relating to whether he was wielding a gun. Further, the State maintains the officers did not use coercive measures to locate the weapon.

This matter presents a close call. After our consideration of the totality of the circumstances as reflected in words used and the accompanying actions of the police, notwithstanding the officers' need to make an in-the-moment judgment to secure the weapon, we are persuaded defendant was not free to ignore the police interrogation, which incidentally was designed to elicit an incriminating response. Accordingly, Miranda warnings were required.

After the police received information from two separate witnesses that defendant threatened Bisogno with a gun, the four officers conferenced and decided the appropriate next step. At that time, a reasonable police officer would have believed he or she had probable cause to arrest defendant for aggravated assault.*fn2 O'Neal, supra, 190 N.J. at 615. Officer Haras admitted the police would not have permitted defendant to leave once they believed he had committed a crime.

Similarly, once two uniformed officers confronted defendant demanding, "Where's the gun," he reasonably would have believed he was ordered to comply and did not have the freedom to disregard the command. See State v. Stephenson, 350 N.J. Super. 517, 521-522 (App. Div. 2002) ("Further, there can be no dispute that posing the direct question '[W]here is the gun?' constitutes interrogation."). Judge Ferencz's finding that defendant was in custody when questions regarding the whereabouts of the weapon were posed is supported and "the unwarned confession must be suppressed under the force of Miranda's irrebuttable presumption of compulsion[.]" Hartley, supra, 103 N.J. at 272.

Alternatively, for the first time on appeal, the State argues the police were not required to give Miranda warnings prior to questioning defendant under the public safety exception announced by the United States Supreme Court in New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). The Court identified those narrow circumstances whereby police concern for public safety, posed by "the volatile situation confronting them," was "paramount to adherence to the literal language of the prophylactic" Miranda rule. Id. at 658, 104 S. Ct. at 2632, 81 L. Ed. 2d at 558. In Quarles, the facts showed that "in the very act of apprehending a suspect, [the police] were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in [a public place]." Id. at 657, 104 S. Ct. at 2632, 81 L. Ed. 2d at 557-58.

In O'Neal, supra, our Supreme Court adopted the exception outlined in Quarles, concluding in limited circumstances, based on an "'objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon[,]'" a safety exception to Miranda is appropriate. 190 N.J. at 617 (quoting Quarles, supra, 467 U.S. at 659 n.8, 104 S. Ct. at 2633 n.8, 81 L. Ed. 2d at 559 n.8). "In such circumstances, the police must specifically frame the question to elicit a response concerning the possible presence of a weapon." Id. at 618. See also State in Interest of A.S., 227 N.J. Super. 541, 548 (App. Div. 1988) (finding the exception was triggered emphasizing the need to locate the weapon "to insure that further danger to the public did not result from the concealment of the gun in a public area"), certif. denied, 117 N.J. 58 (1989).

In Stephenson, supra, we concluded "the totality of the circumstances supported a reasonable and articulable suspicion that defendant might be in possession of a gun." 350 N.J. Super. at 524. However, the gun was likely not in a public area, as it was in Quarles and A.S., but a private one, defendant's motel room. Ibid.

Here, the record contains no evidence the officers' inquiry of defendant was necessitated by exigency and "'an objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon.'" Stephenson, supra, 350 N.J. Super. at 525 (quoting Quarles, supra, 467 U.S. at 659 n.8., 104 S. Ct. at 2633 n.8., 81 L. Ed. 2d at 559 n.8). None of the parties suggested an immediate danger associated with the weapon, located in a private home, existed. Ibid.

Moreover, Bisogno, the victim, mentioned the gun as an afterthought, not a principal concern. Further, the police had separated all parties and there was no concern for defendant's volatility.

The manner in which the police proceeded following their non-custodial questioning was investigatory, designed to obtain evidence to support defendant's arrest and conviction. The police conduct of conferring with one another, obtaining direction from their commanding officer, and then confronting defendant with a demand for the location of the gun, supports the trial court's finding that the questioning was custodial, not protective. Overall, these actions, "containing inherently compelling pressures which work to undermine the individual's will to resist and compel him to speak where he would not otherwise do so freely[,]" Miranda, supra, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719, required that further questioning of defendant be preceded by informing him of his right against self-incrimination.

We conclude, as we did in Stephenson, that the Quarles exception does not apply:

Any perceived need by the police, after their initial non-custodial on-the-scene questioning, to determine the presence and whereabouts of a gun could have been satisfied by various means. They could have Mirandized defendant and continued their questioning if he waived his rights. They could have requested a consent to search his room. Or they could have easily secured the room while a search warrant was requested. [Stephenson, supra, 350 N.J. Super. at 529.]

As defendant's inculpatory statements were the result of custodial interrogation without Miranda warnings, they were properly suppressed. The subsequently seized handgun was also properly suppressed as fruit of the poisonous tree. See State v. Dispoto, 189 N.J. 123 (2007).

Affirmed.


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