On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-10-1125.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2011
Before Judges Lihotz, Waugh, and St. John.
Defendant Carl Hreha appeals from his conviction for second-degree computer criminal activity, in violation of N.J.S.A. 2C:20-25(b), and fourth-degree bias intimidation, in violation of N.J.S.A. 2C:16-1. We reverse.
We discern the following facts and procedural history from the record on appeal.
Hreha was employed by the Office of the Attorney General (OAG)*fn1 from 2003 to 2006. He worked as a technician in the field-support and help-desk section of OAG's Information Technology department (IT). His position involved a variety of computer-related duties, including resolving hardware and software problems for OAG computer users at the Richard J. Hughes Justice Complex in Trenton. Hreha was typically assigned to solve problems with printers.
On September 11, 2006, almost every printer in the OAG computer network at the Justice Complex started continuously printing a document consisting of a confederate flag with the following message: "kill all browns out of our country, die sand niggers." Kiran Patel, one of OAG's IT security managers and Hreha's supervisor, immediately notified his superior, Maria Cardiellos, and began efforts to stop the printing, collect all of the documents, and ascertain the source of the printer order.
According to Hreha, when he returned from lunch, Patel asked for his assistance. Patel testified that Hreha did not initially assist in collecting the documents. He also noticed that Hreha and another member of the IT staff were "giggling" and "giddy."
According to Patel, two print orders caused the continuous printing of the document. The first occurred at lunch time, and the second occurred later in the afternoon. IT staff eventually succeeded in stopping the printers, albeit with considerable difficulty. Patel estimated that 2000 copies of the document had been printed.
Patel and a consultant reviewed the logging devices for the OAG network and determined that the print orders had come from a single IP address within the network. Patel described an IP address as similar to a telephone number, and explained that computers need a unique IP address to communicate with other computers and printers over the network. Patel also determined that the print orders had been sent from a computer terminal located on one of the four floors of the Justice Complex on which the IT department had employees.
Based on his review of the IP addresses in the log, Patel concluded that the IP address involved was a valid address within the OAG network, but that it did not match any device in the building. Patel also discovered a related MAC address, which he analogized to the VIN number of a car because it displays the make, model, and serial number of the network card associated with the device. Upon further investigation, however, Patel discovered that the MAC address was "phony," in that it had been altered and did not actually belong to any device in the IT department.
After September 11, Patel continued to inspect the equipment on the network and review network logs. He eventually ruled out a virus or worm as the source of the print orders.
The incident was subsequently reported to the Division of Criminal Justice and the State Police. Hard drives from two OAG computers were sent to the State Police laboratory for analysis. On September 18, Patel provided Sergeant David Dias of the State Police with information regarding the IP and phony MAC addresses.
Patel also identified Hreha and the other employee with whom he had been "giggling" on September 11 as suspects. He told Dias that the other employee had previously been caught using hacker websites. As part of his investigation, Patel obtained records of Hreha's emails.
On October 13, 2006, Patel informed Hreha that there would be an IT meeting to discuss "general customer service issues" and a change in the pay cycle. After the meeting, Patel told Hreha that a representative of the State Police wanted to speak to him. He and the other IT employees left the conference room, and Hreha stayed behind. Dias, who was not in uniform, entered, closed the door, and informed Hreha that he had a few questions for him.
Dias asked Hreha whether he knew why he was there. Hreha responded that he believed it was about a discrimination complaint he filed against Cardiellos, whom he described as his "main boss." That complaint, which he had filed in late August 2006, alleged that Hreha had been discriminated against on the basis of his age, race, and gender. The complaint was still pending at the time Dias approached Hreha. Dias responded that he was not there to talk about the discrimination complaint.
Dias asked Hreha to read and sign a Miranda*fn2 card. Dias testified that he read the Miranda card to Hreha verbatim, and then asked him to look it over and sign it. Hreha, however, testified that Dias did not read the card to him and that he signed it without having read it. The card did not contain a statement waiving Miranda rights.
At some point, Detective Sergeant Stanley Field, Detective Charles Allen, both of the State Police, and Detective Kevin Zebro of the New Brunswick Police joined Hreha and Dias in the conference room. According to Hreha, because Field and Allen did not identify themselves as police officers, he thought they were in an IT position higher than his own.
Dias then started asking Hreha specific questions about the September 11 incident, although Hreha testified that the police officers eventually took turns asking questions. By that time, according to Hreha, he believed he was not free to leave. With Dias sitting on his right and the three others sitting across from him, Hreha "felt cornered." He felt their tone had become "a little more aggressive" and that they were "adamant on getting more answers out of [him] than [he] really felt that [he] knew."
Hreha initially denied any involvement in creating the document or sending the printing orders. He told Dias he thought the incident was an attempt to make Cardiellos or the IT department look bad. According to Dias, Hreha stated he was "happy about it" if the incident made Cardiellos "look bad." He thought the incident was funny until he saw how it made Patel feel.
After further questioning, Hreha admitted to composing the document and sending it to the printers from his OAG desktop computer. According to Hreha, he was escorted out of the Justice Complex to Dias's patrol car, at which time he was handcuffed and taken to Dias's office in a nearby building.
After Hreha was fingerprinted and photographed, he agreed to give an audiotaped statement, which began at 3:27 p.m. Field, Dias, and Zebro were present. Field advised Hreha of his Miranda rights at the beginning of the audiotaped statement. Hreha acknowledged that he understood his rights, and responded "no" when asked by Field whether he had "been coerced or threatened or intimidated at any point" during the day. However, Field did not ask Hreha whether any promises had been made to him.
After obtaining some basic personal information, Field asked Hreha to "shed some light" on the September 11 incident. Hreha responded as follows:
Hreha: . . . I was involved in a print job or many print jobs of ah, papers that were printed on the printer or many printers throughout our office and it caused a lot of people ah, some headaches and ah, personal disruptions during the course of ah, 9/11 of 2006.
[Field]: Can you go into, the best you can remember specifics and details as to of how that happened, how it, how it occurred, what, what, how did you specifically do it. Hreha: Um, I took a document that was ah, given to me and it had racial content. I then forwarded that document to multiple printers on the computer and um, when I [came] back from lunch I ah, started all the print jobs so that um all the printers would have multiple papers coming out of 'em. Ah, it was, it was an incident that ah, ah, really couldn't be stopped unless they came to me. Um, it was several jobs at each printer, so it was nothing that ah, you could (inaudible) except turning the printer off and if you turn it back on it would keep on printing the same exact page, ya know hundreds of times, that's all, the printer was just turned off completely.
When asked how he masked the MAC address, Hreha explained that he used a program that prevents anyone from tracing his address.
When asked what his intention was in sending the document, Hreha responded: "My main intention was to create some grief upon my ah, immediate boss, ah Maria Cardiellos . . . ." He replied "no" when asked whether anybody was involved or conspired with him.
Field then asked Hreha to sign a Miranda card:
[Field]: Okay. Um, real fast if you could I'd like you to just sign this, this Miranda card, ah, once more, um we'll get ya a pen, um that was just what we said before and again I'll ask ya, ah, at any point were you threatened or coerced into um speaking to us in providing this taped statement.
Hreha's signature on the back of the Miranda card at the end of the interview was witnessed by Dias. That card also did not contain a written Miranda waiver. The interview was concluded at 3:35 p.m., eight minutes after it started. Although they had charged Hreha with a second-degree offense, Dias drove Hreha back to the Justice Complex, where he was released on his own recognizance.
Hreha was indicted on October 19, 2007. He moved to suppress his statements to the State Police. A Miranda hearing was held on December 23, 2009, at which Dias and Hreha testified. The audiotape was played at the hearing and a transcript was introduced into evidence. After receiving post-hearing letter briefs, the judge issued a written opinion and entered an order denying the motion on March 5, 2010.
Hreha was tried before a jury on April 14, 15, 16 and 19, 2010. The jury found him guilty on both counts. Hreha moved for a judgment of acquittal following the verdict. The motion was argued on August 2, 2010, after which the judge reserved decision. He entered a written opinion denying the motion on August 5, 2010. An implementing order was entered the same day.
On August 6, 2010, Hreha was sentenced to a five-year term of imprisonment on count one, with one year and eight months of parole ineligibility. He was sentenced to one year on count two, to run concurrent to the sentence on count one. After sentencing, defendant moved for bail pending appeal, which was denied.
This appeal followed. We denied Hreha's application for bail pending appeal.
Hreha raises the following issues on appeal:
POINT ONE: BOTH CONVICTIONS SHOULD BE VACATED BECAUSE THE COURT BELOW ERRONEOUSLY REFUSED TO SUPPRESS HREHA'S CONFESSION, WHICH (1) VIOLATED MIRANDA BECAUSE THE STATE CONTINUED TO INTERROGATE HIM WITHOUT GIVING HIM FRESH MIRANDA WARNINGS AFTER REFUSING HIS REQUESTS TO SPEAK WITH HIS FATHER AND LEAVE THE ROOM, AND/OR (2) WAS INVOLUNTARY BECAUSE IT RESULTED DIRECTLY FROM THE STATE'S PROMISES OF LENIENCY, INCLUDING FALSE PROMISES HE WOULD RECEIVE PTI AND KEEP HIS JOB.
POINT TWO: THE COMPUTER THEFT CONVICTION SHOULD BE REVERSED, AND A JUDGMENT OF ACQUITTAL SHOULD BE ENTERED, BECAUSE NO EVIDENCE ESTABLISHED THAT HREHA, IN ALLEGEDLY SENDING THE PRINT JOB, (1) EITHER "ALTERED" THE [OAG'S] "COMPUTER NETWORK" OR "DISRUPTED" OR "IMPAIRED" ITS "COMPUTER SERVICES," AND/OR (2) DID SO "WITHOUT AUTHORIZATION."
POINT THREE: THE COMPUTER THEFT CONVICTION SHOULD BE VACATED BECAUSE THE COURT BELOW ERRONEOUSLY INSTRUCTED THE JURY THAT THE "WITHOUT AUTHORIZATION" ELEMENT APPLIED ONLY TO THE "ALTERING" ELEMENT, NOT TO THE "DISRUPTING" ELEMENT.
We begin our analysis with Hreha's contention that the motion judge erred in refusing to suppress the statements he made to the State Police on October 13, 2006.
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial court's fact-finding on a motion to suppress as follows:
[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. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause");
State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid. [State v. Elders, 192 N.J. 224, 243-44 (2007).]
However, our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
In reviewing a trial judge's ruling on a Miranda motion, we analyze police-obtained statements using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (citations and internal quotation marks omitted), certif. denied, 178 N.J. 35 (2003). We generally will not "engage in an independent assessment of the evidence as if [we] were the court of first instance," Locurto, supra, 157 N.J. at 471, nor will we make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997).
Instead, we generally defer to the trial judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
On appeal, Hreha argues that the trial judge erred in denying his motion to suppress for two reasons, only one of which was actually raised on the motion to suppress in the Law Division. Hreha's motion was premised on his argument that his confession was not voluntary, primarily because he relied on promises of leniency made by the police during his first interrogation. The trial judge rejected that argument, which is renewed before us in this appeal. Hreha now also argues that his confession must be suppressed because his request to speak to his father should have been construed as an assertion of his right to remain silent, requiring ...