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State of New Jersey v. Gabriel M. Bay

February 22, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GABRIEL M. BAY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictments No. 09-07-0482, 09-08-1322, 09-08-1323, 09-08-1324, 09-08-1325 and 09-08-1327.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 14, 2011 -

Before Judges Ashrafi and Fasciale.

Defendant Gabriel Bay appeals from judgments of conviction following his guilty pleas to several indictments charging multiple burglaries. He alleges error in the trial court's denial of his motion to suppress his statements to the police and evidence obtained as a result of his confessions, and he contends his sentence is excessive. We affirm.

I.

The following facts were developed by testimony at the suppression hearing. Defendant was arrested on April 12, 2009, by New Brunswick detectives Mark Pappas and David Smith on a warrant for parole violation. Defendant was initially "uncooperative" and declined to make a statement to Pappas. Defendant testified he asked Pappas for a lawyer at that time; Pappas testified defendant did not ask for a lawyer.

At the time of arrest, defendant was the subject of a multi-county investigation of a string of burglaries that occurred from March 20 to mid-April 2009. Four days after the arrest, on April 16, 2009, North Brunswick detective Demetrius Timinarus and two other detectives, one from Edison, went to the Middlesex County jail to interview defendant about burglaries in their municipalities. Before the interview, corrections officer Jay Doda reviewed the interview intake form with defendant, which included a waiver of Miranda*fn1 rights. Doda testified that defendant voluntarily signed the waiver. The three detectives testified that they also read defendant his Miranda rights, he understood them, and he voluntarily signed a waiver form. In the course of the interrogation, defendant made incriminating statements with respect to several burglaries. Defendant also agreed to go on a "ride-along" with the detectives during which he would indicate the locations he had burglarized. The detectives did not record the April 16 interrogation.

Five days after the jailhouse interrogation, on April 21, 2009, the same three detectives retrieved defendant from jail for the ride-along. The detectives first re-read defendant his Miranda rights, and he signed another waiver form. During the two-hour ride, the detectives drove defendant to the sites of twenty-three burglaries, and defendant indicated he committed seventeen of those burglaries, providing corroborating details of how he entered and what he took. Defendant also volunteered two additional burglary locations that the detectives had overlooked. The detectives did not record the ride-along interrogation.

Immediately after the ride-along, the detectives took defendant to the Edison police station, where they asked defendant to give a video-recorded statement. Defendant was given another Miranda waiver form, which he signed without reading. In his recorded statement, defendant discussed in detail the burglaries he had admitted during the April 16 jailhouse interrogation and the April 21 ride-along interrogation.

On April 24, 2009, Highland Park detective Ely Langrey interrogated defendant to discuss additional commercial burglaries in his municipality. Langrey testified that before the interview he read defendant his Miranda rights and defendant voluntarily signed a waiver form. However, defendant's signature indicates he waived his rights at 10:00 a.m., while the video equipment indicates the interrogation began at about 8:30 a.m. During the recorded interrogation, defendant made additional incriminating statements.

On April 27, 2009, East Brunswick detective Edward Connelly interrogated defendant at the jail to discuss burglaries of commercial properties in his jurisdiction. Before the interview, Connelly read defendant his Miranda rights, and defendant voluntarily signed the waiver form. During the recorded interrogation, defendant made more incriminating statements.

Subsequently, five Middlesex County indictments (one for each municipality) and one Somerset County indictment were returned by grand juries charging defendant on twenty-three third-degree counts of burglary, N.J.S.A. 2C:18-2, and fifteen other third- and fourth-degree offenses related to the burglaries.

Defendant moved to suppress his video-recorded statements made on April 21, 24, and 27, 2009. Judge DeVesa heard testimony from defendant and law enforcement witnesses and watched portions of the April 21 recording. He denied the motion to suppress in part because he found that defendant did not invoke his right to counsel at the time of arrest.

After the suppression motion was denied, a plea agreement was negotiated pursuant to which defendant agreed to plead guilty to eleven counts of third-degree burglary and the prosecutor agreed to drop the remaining twenty-seven charges and to recommend an aggregate sentence of twenty-five years imprisonment with a ten-year term of parole ineligibility. At sentencing, Judge DeVesa weighed the aggravating and mitigating factors, made findings on the record, and imposed sentences of ten*fn2 and five years on several of the burglaries, aggregating to a total of twenty-five years imprisonment with ten years of parole ineligibility. As an accommodation to ...


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