On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-05-1755.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 13, 2011
Before Judges Waugh and St. John.
Defendant James A. Broadwater appeals from his conviction, following a guilty plea, for second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1), as well as the resulting sentence of incarceration for ten years subject to an eighty- five-percent period of parole ineligibility pursuant to N.J.S.A. 2C:43-7.2. He also appeals the imposition of restitution in the amount of $5047, primarily for the victim's medical expenses. We affirm the conviction and the custodial sentence. However, we vacate the restitution requirement and remand for an ability-to-pay hearing.
We discern the following facts and procedural history from the record on appeal.
On November 13, 2007, two members of the Camden Police Department were parked near the intersection of Broadway and Pine Street when they heard a gunshot. An area resident informed them that there had been a shooting in an alley near Pine Street. The officers went to investigate. One of them saw a black male with a handgun, who then fled on foot. The officers were unable to catch the suspect. The victim subsequently identified Broadwater as the shooter.
Broadwater was arrested that day and taken to police headquarters.
Investigator Michael Dougherty of the Camden County Prosecutor's
Office attempted to explain to Broadwater his Miranda*fn1
rights so he could conduct an interview. Because
Broadwater was "incoherent" and "mumbling," Dougherty decided to
postpone the interview.
On November 15, 2007, Dougherty resumed his efforts to interview Broadwater. He explained the Miranda rights to Broadwater, who stated that he understood them. When Broadwater expressed reluctance to give a statement, State Police Sergeant Rick Bumbera told him that he and Dougherty were attempting to ascertain the facts concerning the shooting, so that they could determine whether Broadwater was trying to kill the victim or just to scare him. Bumbera suggested that the nature of the charge would determine the amount of "time" Broadwater would face.
When Broadwater again expressed concern that Dougherty and Bumbera would use the information against him, Dougherty responded:
Is that what, you got to understand something. If you speak to us now, what you do say to us I'm going to take down, and yes, it is gonna be used against you. But the idea is, are you going to say something that may help you or may help explain your actions? Cause other than that, honestly, I already have his side of the story. We already have what went on out there, we have all those facts. We need an explanation from you, why they happened. Look, look I've dealt with cool blooded killers, and I've dealt with shooters that try to kill people, and I don't think you're a cool blooded killer. But is there some explanation as to why this happened? If not, it is what it is, you shot some body down in the street, with no explanation as to why you did it.
Dougherty and Bumbera then explained that they had statements from witnesses and the victim, but they wanted to hear Broadwater's version. When Broadwater asked why he should talk to them if they had those statements, Dougherty responded: "We don't know why you did it." He also told Broadwater that they needed the information because they "have to evaluate how somebody is going to be charged" and "work with the prosecutor and determine how you're going to be prosecuted." He told Broadwater that the choices were "attempted murder" or "aggravated assault."
After some further discussion, the following exchange took place:
Q. Inv. Dougherty: You know what I mean, this was a courtesy to you, we said look in all fairness we always try to speak to both sides to get it and the other night when you were here, [you] couldn't even keep your head up to talk to us. If we were, if we were trying to do anything, we would have, that night we would have tried to talk to you. And we said look, that's not fair, this guy is not in the position to be able to talk to us. So we said in fairness to you, we were going to let you sleep, get your head straight and then we would bring you back and give you a chance to explain what happened. Because honestly, I've been doing this for a little while and he's been doing this for a little while, and you got kids you know how it is, it never hurts to say you're sorry, it never hurts to say you're sorry. You know whether you're looking at charges, whether you're looking for what, worried about what your going to as far as time is, we can't tell you that right now, cause no body really knows what went on, nobody know[s] the whole story. But, think about this it never hurts to say you're sorry.
A. I don't want nothing recorded or anything.
Q. There's no tape, hang on, opening it up, there's no tape in there. I walked in with you, did you see him put a tape in there?
Q. Sgt. Bumbera: All we're asking you right now, you want to talk to us, you don't want to talk to us, man it's as simple as that, it's as simple as that, bud.
A. I don't want nothing recorded like I said.
Q. Oh, yea they are but . . .
Q. Inv. Dougherty: Actually, this goes, this goes to right now the locker room it's closed off, that's blocked off. And this I don't, I think the pipes are still back there now.
Q. Sgt. Bumbera: I don't know what that is.
Q. Inv. Dougherty: I give you my word that there's no body behind these mirrors, I give you my word.
Q. You need to sign this ...