July 29, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CANDIDO MAYAS, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGEL L. RIVERA, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MANUEL MAYAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-02-0132.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
A Cumberland County grand jury returned a thirty-four count indictment in which defendants Candido Mayas, Angel L. Rivera, and Manuel Mayas,*fn1 along with Daniel Rivera, were each charged with three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); one count of fourth-degree possession of a prohibited device (hollow point bullets), N.J.S.A. 2C:39-3(f); and two counts of third-degree receiving stolen property, N.J.S.A. 2C:20-7(a). In addition, Angel and Candido were each charged with one count of fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1(a), and Candido and Manuel were each charged with three counts of second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b).*fn2
Daniel entered a guilty plea prior to trial. Manuel, Candido, and Angel were tried together before a judge and a jury from June 5 to June 7, 2007. All three defendants were found guilty of three counts of third-degree unlawful possession of a weapon. Following a second trial held at the conclusion of the first before the same jury, Manuel and Candido were each also found guilty of three counts of second-degree possession of a weapon by a convicted person.
At Angel's sentencing, the trial court denied the State's motion to impose an extended term sentence based on persistent offender status, N.J.S.A. 2C:44-3(a). The trial judge found three aggravating factors: N.J.S.A. 2C:44-1(a)(3), the risk of reoffense; (6), the extent and seriousness of defendant's prior criminal record; and (9), the need to deter. The judge found no mitigating factors and sentenced Angel to five years with a two and one-half year period of parole ineligibility on each of the three counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), to run concurrently.*fn3
As for Manuel, the trial court found aggravating factors N.J.S.A. 2C:44-1(a)(3), (6), and (9), no mitigating factors and ruled that Manuel was a persistent offender, N.J.S.A. 2C:44-3(a). Manuel was sentenced to an extended fifteen-year term with a seven and one-half year period of parole ineligibility on count twenty-nine, possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b); a concurrent ten-year term with a five-year period of parole ineligibility on counts thirty and thirty-one, possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b); and a concurrent five-year term with two and one-half year period of parole ineligibility on counts one, two and three, unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). This sentence was consecutive to a sentence he was already serving.
After ruling that Candido was a persistent offender, N.J.S.A. 2C:44-3(a), the trial court found aggravating factors N.J.S.A. 2C:44-1(a)(3), (6), and (9) and no mitigating factors. Candido was sentenced to an extended twenty-year term with ten years of parole ineligibility on each of the three counts of possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b), and a five-year term with a two and one-half year period of parole ineligibility on each of the three counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), to all run concurrently.
For the purpose of this opinion, we have consolidated the separate appeals of these defendants. The facts are derived from testimony presented during the motion to suppress evidence and trial.*fn4 Vineland Police Officer Anthony Ruberti testified that at approximately 1:00 a.m., on October 5, 2005, he observed a Suzuki vehicle turn on the Boulevard in the center city area without lit tail lights. Officer Ruberti followed the Suzuki and activated his overhead lights and vehicle spotlight to effectuate a stop. With the aid of illumination, Officer Ruberti observed the rear passenger on the driver's side slouch and apparently attempt to conceal something underneath his seat. The Suzuki failed to stop and instead continued on the Boulevard toward Wood Street. Officer Ruberti sounded his vehicle's air horn and siren, but the Suzuki continued to travel to another street, eventually pulling over, and parking in the road, at an angle, in front of a residence.
Officer Ruberti stopped fifteen to twenty feet behind the Suzuki, and called to check the vehicle's license tag. Two occupants exited the vehicle, one from the front passenger seat, whom Officer Ruberti recognized as Angel and the other from the driver's side back seat, whom he recognized as Candido. Both left the vehicle doors open, and began walking "with a quick pace" towards the residence while Candido kept his eyes on Officer Ruberti. According to police information, both individuals were known to carry weapons. As Angel and Candido went towards the house, Officer Ruberti ordered them to return to the vehicle and neither individual complied.
Because Officer Ruberti was concerned there might be weapons in the vehicle, he then requested that the driver of the vehicle, Daniel, and the remaining passenger, Manuel, keep their hands visible. At this point, three other officers arrived at the scene. Officers Ruberti and Adams followed Angel and Candido and advised them that they would be charged with obstruction if they did not return to the Suzuki. Angel's mother, Hilda, came to the door of the residence and let Angel and Candido inside.
At that juncture, the officers returned to the Suzuki and removed Daniel and Manuel, telling them they were not under arrest, but placing them in the back of the patrol cars for safety reasons. Both doors of the Suzuki were left open.
As Hilda came out of the house, she started yelling and screaming aggressively. The officers first informed her of the need to have Angel and Candido come outside, and when the two men came to the doorway, Officer Ruberti advised them they were under arrest for obstructing. Hilda stood in Ruberti's way, and Angel and Candido went back inside. Hilda was arrested and placed in a patrol vehicle.
Officer Robert Magee testified that after Manuel and Daniel were removed from the Suzuki, he went over to the open front passenger-side door and, standing between the open door and the curb, he looked through the window. He saw a bag underneath the front passenger seat, used his flashlight, and saw the barrel of a gun sticking out from underneath the bag. Officer Magee yelled "gun" to alert the other officers in the area of the presence of a weapon.
Once Sergeant Stanley Czaplinski heard Magee yell "gun" he shined his flashlight, looked inside on the driver's side of the Suzuki, and saw the barrel and part of the handle of a second handgun under the driver's floor mat.
Officer Charles Garrison testified that after the second gun was found, with the door wide open, he used his flashlight, and searched under the driver's seat and the driver's side rear passenger area. In the rear, he saw the handle of a third handgun sticking out from a black piece of clothing, later determined to be one of three Halloween masks found in the Suzuki. All three of the handguns were seized. By that time, approximately thirteen Vineland officers had responded to a radio call and had set up a perimeter around the residence. Shortly thereafter, Candido and Angel emerged from the house and surrendered to the police without incident.
All three defendants filed separate motions to suppress the three handguns and three masks found in the Suzuki. On December 21, 2006, a hearing was held concerning the legality of the warrantless search of the Suzuki. Four of the officers and none of the defendants testified. Finding the State's witnesses credible, the trial court denied the motions to suppress. The court determined that the first two guns were in plain view and that exigent circumstances existed to allow a further search of the vehicle.
Subsequently, a second suppression hearing was held concerning
Manuel's taped verbal statement given after his arrest. At that
hearing, Officer Ruberti testified that Manuel was brought to the
police station and Officer Magee gave Manuel his Miranda*fn5
warnings. Officer Magee also testified that he gave Miranda
warnings at the scene and that Manuel signed the Miranda card at 1:35
a.m. Manuel acknowledged that he wanted to make a statement, but he
indicated that he would talk to the police if they released Hilda. He
wanted to make sure that Hilda went home that night. By the time
Manuel made the statement, the police had already decided to release
Hilda with a summons, although Manuel was not told that fact.
In his brief statement, Manuel admitted that two weapons in the vehicle were his and that he had purchased them from a person in Walnut Manor Apartment Complex. The trial court denied Manuel's motion to suppress his statement, finding the State's witnesses were "extremely credible" and Manuel made a "voluntary, knowing and intelligent waiver of his Miranda rights."
All defendants raise the following general errors on appeal:*fn6
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTION TO SUPPRESS THE FIREARMS FOUND IN THE VEHICLE.
POINT II: THE TRIAL COURT ERRED IN ALLOWING ADMISSION OF THE THREE MASKS FOUND IN THE VEHICLE.
POINT III: THE TRIAL COURT ERRED IN CHARGING THE JURY ON FLIGHT.
POINT IV: THE TRIAL COURT ERRED IN SENTENCING.
Angel raises the following additional errors on appeal:
POINT I: THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A MISTRIAL BASED ON THE PROSECUTOR'S IMPROPER USE OF PEREMPTORY CHALLENGES DENIED DEFENDANT HIS RIGHT TO EQUAL PROTECTION AND A FAIR TRIAL.
POINT II: THE TRIAL COURT ERRED IN FAILING TO ASCERTAIN WHETHER THE JURY WAS TAINTED. Manuel raises the following additional errors on appeal:
POINT I: MANUEL'S STATEMENT TO THE POLICE SHOULD HAVE BEEN SUPPRESSED.
POINT II: THE PROSECUTOR MADE IMPROPER STATEMENTS DURING HIS SUMMATION. (Not raised below).
POINT III: THE VERDICTS AGAINST MANUEL ARE INCONSISTENT. (Not raised below).
Finally, Angel and Manuel alone contend:
POINT I: THE CUMULATIVE ERRORS IN THE TRIAL MANDATE A REVERSAL.
We first address whether the trial court should have suppressed the evidence seized in the warrantless search of the car and whether exigent circumstances or probable cause existed to justify the search.
In reviewing a motion to suppress evidence, we defer to the trial court's fact findings underlying its decision, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We may not substitute our own conclusions regarding the evidence, even in a "close" case. State v. Locurto, 157 N.J. 463, 471 (1999). We specifically defer to the credibility determinations of the trial court, particularly its review of competing factual testimony. Id. at 474; State v. Hodgson, 44 N.J. 151 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966). These factual determinations "'are substantially influenced by [the trial court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We reverse only when the determination is "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 161). However, we need not defer to any legal conclusions reached from the established facts. State v. Brown, 118 N.J. 595, 604 (1990).
The Fourth Amendment to the United States Constitution, and Article I, paragraph 7 of the New Jersey Constitution require "police officers obtain a warrant before searching a person's property, unless the search falls within one of the recognized exceptions to the warrant requirement." State v. Cassidy, 179 N.J. 150, 160 (2004) (internal quotation marks and citations omitted). See also State v. Pena-Flores, 198 N.J. 6, 18 (2009). A warrantless search is to be presumed invalid, and the State carries the burden to prove that the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).
A warrant is not required to perform a search when a police officer is (1) lawfully present in the viewing area, (2) the officer inadvertently discovers the evidence in plain view, and
(3) it is "immediately apparent" to the police officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002). See also State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Where an officer standing outside a vehicle makes an observation inside the vehicle, no "search" within the meaning of the Federal or New Jersey constitutions has occurred. State v. Johnson, 274 N.J. Super. 137, 153 (App. Div.), certif. denied, 138 N.J. 265 (1994). Thus, a plain view observation of an object inside a vehicle is not an unlawful search. Id. at 154.
Here, the judge credited the four officers' observations of the defendants' conduct and considered the following additional circumstances were sufficient to constitute articulable suspicion that something was amiss: that the officers were familiar with the reputations of the defendants for carrying firearms; that the vehicle failed to stop when directed to do so; that a rear-seat passenger had made furtive movements suggesting he was hiding something inside the car; that the driver parked the car in an erratic fashion; and that two of the defendants left the vehicle at a fast pace, leaving the doors open. The court found the detention of Daniel and Manuel was reasonable and that there was probable cause to arrest Angel and Candido for failing to cooperate and for impeding the investigation.
We defer to the judge's factual findings as to the validity of the seizure of the first two handguns. See State v. Mann, 203 N.J. 328, 336-37 (2010). As such, we have no basis to disturb the judge's decision to uphold the seizure of the evidence and to allow its use during trial. The police officers had a justified basis to stop defendants to advise them of their missing tail light. Of course, the situation never even reached that stage, because defendants refused to stop when signaled. Their conduct triggered a heightened suspicion, which eventually led to the observation of the weapons in plain view, an exception to the warrant requirement. The officers were lawfully in the viewing area, standing outside the vehicle, when they looked in the vehicle. Neither officer knew that he would find guns. Further, it was immediately apparent that the gun was contraband. See State v. Demeter, 124 N.J. 374, 381-82 (1991) (noting a handgun does not constitute an intrinsically innocent object).
The seizure of the evidence was also justified under the automobile exception to the warrant requirement. That exception permissibly allows a search upon the finding of probable cause to believe the vehicle contains evidence of criminal activity and "exigent circumstances," including "the unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile stopped on the highway." State v. Alston, 88 N.J. 211, 233 (1981). The automobile exception under New Jersey law differs from the federal exception in that under the federal standard exigency is automatic. Pena-Flores, supra, 198 N.J. at 20. Under our State jurisprudence, "the dispositive question is whether 'the circumstances . . . make it impracticable to obtain a warrant when the police have probable cause to search the car.'" Id. at 23 (quoting State v. Colvin, 123 N.J. 428, 437 (1991)).
In Pena-Flores, the Court concluded that a warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant. The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle.
[Id. at 28 (citations omitted).]
The Court observed that exigency must be determined on a "case-by-case basis" and "[n]o one factor is dispositive; courts must consider the totality of the circumstances." Ibid. However, the analysis remains constant because "the issues of officer safety and the preservation of evidence [are] the fundamental inquiry." Id. at 29. The Court identified a non-exhaustive list of considerations to be taken into account when determining the existence of exigent circumstances, including: the location of the [search]; the nature of the neighborhood; the unfolding of the events establishing probable cause; . . . whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk. [Ibid.]
Exigency will be found "when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." State v. Johnson, 193 N.J. 528, 553 (2008).
As for the third weapon, at the suppression hearing, the trial judge ruled that once the first gun was found, the officers had probable cause to search the car and exigency existed. We agree that probable cause existed because of (1) defendants' failure to stop their vehicle when ordered; (2) the furtive movements in the car; (3) the fleeing defendants; (4) the doors of the vehicle having been left wide open; (5) the manner in which the car was parked; and (6) the lateness of the hour. The events unfolded quickly and implicated the officers' safety.
We also agree that exigent circumstances precluded obtaining a warrant since the officers' safety and the preservation of evidence were in jeopardy. At the point of the search, there were only four officers on the scene and at least five suspects. Although two of the suspects, along with Hilda, had been arrested, guns had been discovered and Candido and Angel were still inside the house. Accordingly, we conclude that the warrantless search of the vehicle satisfied the standards governing the automobile exception to the warrant requirement.
Prior to trial, Manuel's counsel made a motion in limine to preclude the State from introducing testimony regarding the three masks found by Officer Garrison. The defendants argue that the masks were prejudicial and would plant in the minds of the jurors that they were possessed for an inappropriate purpose. The State counters that the masks had high probative value concerning the constructive possession of the handguns since all three masks were in different areas of the Suzuki. Moreover, the State submits that since Daniel had asserted in connection with his guilty plea that he was responsible for all three guns, the prosecutor wished to use the masks to establish that three people, not one, possessed the three guns.
A trial court's evidentiary decision will only be overturned where the decision was a palpable abuse of discretion, or the decision represents "a clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). In reviewing the trial court's decision to permit evidence of the masks, we perceive no abuse of discretion.
Evidence is relevant if it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Once the trial judge determines the evidence is relevant, admission of the evidence is within his discretion. State v. Catlow, 206 N.J. Super. 186, 193 (App. Div. 1985). N.J.R.E. 403 provides:
Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.
The burden is on the party urging exclusion. Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2011). To be excluded, the probative value must be "so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation." State v. Thompson, 59 N.J. 396, 421 (1971). The prejudicial effect can be minimized by a limiting instruction. Ocasio v. Amtrak, 299 N.J. Super. 139, 159-60 (App. Div. 1997).
Here, the trial court, while acknowledging that the "masks do have a character to them that has a certain ominous effect that potentially could be prejudicial," found that the masks had probative value to establish knowledge since the jurors can consider whether more than one occupant of the vehicle in fact actively or constructively possessed the handguns. Further, the trial judge found that the masks would bear on the credibility of the driver, Daniel, because he pled guilty and claimed ownership of the guns.
Significantly, the judge also provided a limiting instruction at trial. He instructed:
You should understand that there has been no claim that any of the four occupants of the car committed any crimes using these masks or that the masks were possessed for use in some unlawful - for some unlawful purpose.
There's been no evidence, there's been no claim as such. In fact, the date in question here is October 5th, 26 days before Halloween, and it's not illegal to possess these masks. Therefore, these masks should not be considered by you as evidence of any intention to commit any crimes involving these masks, nor should you draw any inference as to any criminal intentions on the part of anyone in the car based solely on the fact that the masks were present in the car.
You may consider the masks as you deem appropriate and make - and draw what conclusions you will - or inference that you may, based upon what I've just told you in that charge.
We do not find that the trial court's decision to admit evidence of the masks an abuse of discretion. The masks appeared to be "executioner-style" masks, and did have a "certain prejudicial effect"; however, the contention of the State was that the defendants were using the masks to conceal the guns, thereby bespeaking their awareness and exercise of control of the weapons. It is presumed that a jury follows limiting instructions unless there is an affirmative showing to the contrary, see State v. Macilwraight, 344 N.J. Super. 544, 547 (App. Div. 2001), and no such showing has been made.
Defendants did not show that the probative value was substantially outweighed by the prejudicial effect.
At the end of the case, the prosecutor requested a jury charge on flight or alternatively, permission to comment in summation on Angel and Candido's actions in leaving the vehicle and disobeying Officer Ruberti's orders. The trial judge initially denied the request for a flight charge; however, after hearing arguments, the trial judge concluded that it was a question for the jury to determine whether the actions constituted flight.
Evidence of flight is admissible to show consciousness of guilt, and consequently, admissible to show guilt. State v. Ingram, 196 N.J. 23, 46 (2008). The circumstances of flight must be unexplained and "'in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.'" State v. Mann, 132 N.J. 410, 418-19 (1993) (quoting State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966)).
Here, there is evidence of "unexplained circumstances" beyond mere departure, which reasonably supports an inference that defendants fled with a consciousness of guilt in an effort to avoid accusation. See Sullivan, supra, 43 N.J. at 238-39.
Candido and Angel left the vehicle as soon as it stopped despite being directed to stay. Officer Ruberti told them to return to the car and neither complied. It is reasonable to infer that Candido and Angel were attempting to avoid accusation or apprehension on the weapon charges which were ultimately brought against them. The handguns were found shortly after Candido and Angel left the vehicle and their decision not to stop when signaled to do so could reasonably imply their consciousness of guilt. This was a question for the jury and correctly submitted. We are satisfied that in this context the flight charge was applicable and not unduly prejudicial.
Defendants raise various arguments as to their sentences which we will briefly address in turn: First, Angel contends his sentence is excessive; second, Candido and Manuel argue that certain counts should have been merged; and last, Candido and Manuel argue that the trial court abused its discretion in imposing an extended term sentence.
Our review of a sentence is limited. State v. Roth, 95 N.J. 334, 364 (1984). We must first determine whether the correct sentencing guidelines have been followed. Id. at 365.
When a trial court follows the sentencing guidelines, we should not second-guess the sentencing court's decision. State v. Cassady, 198 N.J. 165, 181 (2009); State v. Jabbour, 118 N.J. 1, 5 (1990). Indeed, an appellate court "'does not sit to substitute its judgment for that of the trial court.'" Jabbour, supra, 118 N.J. at 6 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, we must affirm defendant's sentence. Ibid. Applying these standards, we discern no reason to disturb Angel's or Manuel's sentence. The trial judge followed the sentencing guidelines and the record supports the judge's findings of aggravating factors N.J.S.A. 2C:44-1(a)(3), (6) and (9). Candido's sentence must be corrected to reflect that only one extended term sentence is imposed.
Angel's maximum five-year term with a two and one-half year period of parole ineligibility for a third-degree crime is not excessive. More specifically, we do not find persuasive Angel's contention that the judge erred by failing to find mitigating factor eleven, incarceration as a hardship on his family. N.J.S.A. 2C:44-1(b)(11); State v. Mirakaj, 268 N.J. Super. 48, 51 (App. Div. 1993). The trial judge found that Angel supported his children and indicated that he took this into account when considering the State's extended term application. This factor was part of the deliberative process and rejected. State v. Dalziel, 182 N.J. 494, 505 (2005). Further, aggravating factors (3), (6), and (9) were appropriately applied in this case. According to the presentence report, over an eleven-year period Angel has been arrested twenty-nine times, has three indictable convictions, five disorderly person convictions, two ordinance violations, one violation of parole and has been sentenced to county jail and probation, none of which deterred him. Angel also had a juvenile record, and although it was destroyed, parole records indicate that Angel was sentenced for aggravated assault as a juvenile.*fn7
Next, Candido and Manuel both argue that the three handgun counts should have merged with the three counts of unlawful possession of a weapon by a felon. We disagree. N.J.S.A. 2C:1-8(a)(1) provides in part that "[w]hen the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense" unless "[o]ne offense is included in the other." An offense is included in the other where "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8(d).
The crime of unlawful possession without a permit requires proof that defendant did not have a permit. N.J.S.A. 2C:39-5(b). The crime of possession by a felon of a handgun requires proof that defendant was convicted of a crime listed in N.J.S.A. 2C:39-7(b). Each has a different element that the other does not, and thus, neither crime is a lesser-included offense of the other. See State v. Wright, 155 N.J. Super. 549, 554-55 (App. Div. 1978) (finding that the prior versions of N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:39-7(b) were not lesser-included offenses of each other); State v. Veney, 409 N.J. Super. 368, 381-82 (App. Div. 2009) (discussing, in the context of double jeopardy concerns, whether N.J.S.A. 2C:39-5 was a lesser-included offense in N.J.S.A. 2C:39-7 and concluding it was not).
Further, these two statutes vindicate different harms. Where the Legislature intended to protect different interests with the statutes which were violated, merger is not appropriate. State v. Miller, 108 N.J. 112, 118 (1987). As a result, Candido's and Manuel's convictions on N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:39-7(b) do not merge.
Finally, N.J.S.A. 2C:44-3(a) provides in part that an extended term as a persistent offender may be applied to a defendant where that defendant has been convicted of a third-degree crime when he was twenty-one years or older and has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced. [N.J.S.A. 2C:44-3(a).]
However, only one extended term may be imposed, N.J.S.A. 2C:44-5(a)(2), and the court may not impose two extended terms that run concurrently. State v. Singleton, 326 N.J. Super. 351, 355 (App. Div. 1999). Once the trial court has determined defendant is eligible for extended term sentencing, then the court must determine if the facts warrant such a sentence. State v. Pierce, 188 N.J. 155, 168 (2006).
A trial court's decision to impose and set a discretionary extended term sentence is reviewed for abuse of that discretion and is reviewed for reasonableness and for the existence of credible evidence that supports the aggravating and mitigating factors. Pierce, supra, 188 N.J. at 166, n.4. In determining whether to apply an extended term, the court looks to the aggravating and mitigating factors and the consideration of the need to protect the public. Id. at 168. This consideration includes the defendant's past criminal history and his susceptibility to rehabilitation in light of the statutory aggravating and mitigating factors. State v. Cross, 330 N.J. Super. 516, 525-26 (App. Div. 2000).
After finding Candido qualified for extended term treatment as a persistent offender, the court imposed an extended twenty-year term with a ten-year parole disqualifier on count thirty-two. It imposed the same sentences with respect to counts thirty-three and thirty-four, to run concurrently. The trial court's imposition of three concurrent discretionary extended terms on Candido, under the Persistent Offender Statute, N.J.S.A. 2C:44-3(a), were illegal sentences. We conclude Candido was eligible to be sentenced one extended term, and only once, as a persistent offender. N.J.S.A. 2C:44-3(a).
As for Manuel, the trial judge followed the sentencing guidelines and as stated above, the trial judge found him eligible for an extended term and sentenced him to fifteen years with seven-and-one-half years of parole ineligibility only on count twenty-nine, possession of a weapon by a convicted person.
As an adult, over a period of eleven years, Manuel has been arrested twenty-seven times, had four indictable convictions, six ordinance violations, four disorderly convictions, and two adjudications of having violated probation. Manuel had been sentenced to both county and state jail and was arrested twelve prior times and had six adjudications as a juvenile. Further, Manuel committed an indictable offense ten days after he was arrested for the charges in this case. According to the presentence report, Manuel was older than twenty-one when he committed this offense, he had two prior indictable convictions, which occurred after he turned eighteen, and both convictions occurred within the last ten years. N.J.S.A. 2C:44-3(a). Thus, Manuel was eligible for an extended term sentence.
Angel contends that the trial court erred by denying his motion for a mistrial because the prosecutor used his peremptory challenges to strike two Hispanic jurors, which denied Angel his right to equal protection and a fair trial. When a defendant makes a claim of racial discrimination in the prosecutor's use of peremptory challenges, a three-step analysis is required. State v. Osorio, 199 N.J. 486, 492 (2009). First, defendant must make a prima facie showing that the challenges were based on impermissible grounds. Ibid. Factors which are properly considered in this step are whether his opponent has struck most or all of the members of the identified group from the venire[;] whether the opponent has used a disproportionate number of his peremptories against the group[;] whether the jurors in question share only this one characteristic--their membership in the group--and that in all other respects they are as heterogeneous as the community as a whole[;] whether the opponent failed to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all[;] and although the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule[,] whether he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong[.] [Id. at 503-04 (alterations in original) (quotation marks and citations omitted).]
This "burden is slight" and defendant need only "produc[e] evidence sufficient to draw an inference that discrimination has occurred." Id. at 492.
Once a prima facie case has been established, the burden shifts to the prosecutor to "'come forward with evidence' that the peremptory challenges under review are justifiable on the basis of concerns about situation-specific bias." Id. at 504 (quoting State v. Gilmore, 103 N.J. 537 (1986)). If the trial judge is satisfied that the proffered reasons are genuine and reasonable, the trial judge must then weigh the strength of defendant's prima facie case against the prosecutor's proffered reasons. Id. at 504-06. In doing so, the trial judge should consider whether the prosecutor applied the proffered reasons "even-handedly to all prospective jurors," the pattern of the prosecutor's challenges, and the ultimate composition of the jury. Id. at 506 (quoting State v. Clark, 316 N.J. Super. 462, 473-74 (App. Div. 1998), appeal after remand, 324 N.J. Super. 558 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000)).
In the present case, the prosecutor challenged two Hispanic jurors on the basis that one of them "felt bad" for individuals who were in trouble and the other juror's mother had spoken with Angel's mother about the case. These challenges constitute two of the total seventeen exercised by the prosecutor, and the record indicates that at least two individuals on the jury appeared Hispanic. The judge considered that the jury, as finally selected, included two Hispanics - a factor that "may be highly probative of the ultimate question whether the prosecution's proffered nondiscriminatory reasons for exercising peremptory challenges are genuine and reasonable." Clark, supra, 316 N.J. Super. at 474. He concluded that the prosecution gave a legitimate and genuine reason for exercising the two peremptory challenges.
We owe "substantial deference" to the trial judge's decision. State v. Chevalier, 340 N.J. Super. 339, 351 (App. Div. 2001). In his appellate brief, Angel offers little more than a conclusory assertion that the State's use of peremptory challenges appeared to be based on class exclusion. The record does not support that assertion, and we find no basis to disturb the trial judge's determination.
Finally, we address whether Manuel's statement to the police was knowing or voluntary. Manuel argues that when he made the statement, he was under the impression it was in exchange for the release of Hilda, and because the police did not disclose that they released her, his confession was involuntary.
A decision to suppress a defendant's statement for Miranda violations is reviewed for abuse of discretion. State v. Nyhammer, 197 N.J. 383, 409 (2009). The Federal Constitution and New Jersey State law protect the right against self-incrimination. State v. O'Neill, 193 N.J. 148, 167 (2007). To this end, the United States Supreme Court has created safeguards that apply where an individual is subject to police interrogation while in custody. Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725. Prior to interrogation, the defendant must be apprised of his rights, including the right to remain silent. Nyhammer, supra, 197 N.J. at 400.
Statements made by the defendant are only admissible if the prosecution has demonstrated that defendant was informed of his rights and knowingly, voluntarily, and intelligently waived those rights. Id. at 400-01. Defendant can waive his Miranda rights, if he does so "knowingly, voluntarily, and intelligently." O'Neill, supra, 193 N.J. at 168. An examination of the totality of the circumstances is necessary to determine if the defendant knowingly, voluntarily and intelligently waived his rights. Nyhammer, supra, 197 N.J. at 402. This examination may encompass such factors as "the defendant's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved." Ibid.
"'[A] valid waiver does not require that an individual be informed of all information useful in making his decision.'" Id. at 407 (quoting Colorado v. Spring, 479 U.S. 564, 576, 107 S. Ct. 851, 858, 93 L. Ed. 2d 954, 966 (1987)). Evidence of trickery, threats or whether the defendant was cajoled into waiving his right renders the waiver involuntary, but "official silence" will not. Ibid.
In Nyhammer, the Court dealt with a situation in which the police contacted defendant by telephone and requested him to come down to the police station to discuss allegations that his uncle had sexually abused his grand-niece. Id. at 389. The detective did not tell defendant, however, that the child had made accusations of abuse not only against defendant's uncle but also against defendant himself. Id. at 389-90. Defendant complied with the detective's request and went to the police station, where he was given Miranda warnings and interrogated. Id. at 390. At that point, the police divulged to defendant the accusations that the child had made against him, whereupon he admitted to inappropriate contact with her. Id. at 391.
Reversing a contrary decision of this court, the Supreme Court held that Nyhammer's custodial statement was admissible, even though the police had not mentioned to him that he was a suspect when they brought him in for questioning. Id. at 405. The Court noted that "the defining event triggering the need to give Miranda warnings is custody, not police suspicions concerning an individual's possible role in a crime." Id. at 406. The Court recognized the subjective nature of the label "suspect," observing that "[a] suspect to one police officer may be a person of interest to another officer." Id. at 405.
Here, there is no evidence that the police misled Manuel in any way. Manuel was asked to make a statement, and the police did not tell him that Hilda would be released although she was later released. As noted in Nyhammer, "official silence" is only a factor to be considered in determining whether the statement was knowing, voluntarily and intelligent. Id. at 407.
In sum, we adopt the trial court's findings that defendant's statements to the police were knowing, voluntary and intelligent, and the trial court's associated findings about the testifying detectives' credibility. Locurto, supra, 157 N.J. at 474-75. We affirm the denial of the suppression motion.
Full consideration has been given to the balance of defendants' arguments, which lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We remand only for the resentencing of Candido on counts thirty-three and thirty-four because of the improper imposition of three extended term sentences. We affirm the sentences imposed on Angel and Manuel's convictions and the three judgments of conviction.
Affirmed in part, remanded in part.