On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 06-01-0133 and 07-08-1357.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2011
Before Judges Grall, Alvarez and Skillman.
After the denial of his motion to suppress physical evidence, and statements made during custodial interrogation, defendant Lamont Boyd entered guilty pleas to three counts of Bergen County Indictment No. 06-01-0133: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (count five); and first-degree armed robbery, N.J.S.A. 2C:15-1 (counts fifteen and sixteen). He also entered a guilty plea to count two of Indictment No. 07-08-1357,*fn1 a charge of first-degree armed robbery, N.J.S.A. 2C:15-1. On February 27, 2009, defendant was sentenced on both indictments in conformity with the plea agreement. On the first indictment he received concurrent ten-year terms subject to the No Early Release Act's (NERA) eighty-five percent parole ineligibility. N.J.S.A. 2C:43-7.2(a). On the second indictment he received a consecutive ten-year term of imprisonment, also subject to NERA. Defendant appeals the denial of his pre-trial motion to suppress as well as his sentence. We affirm.
Defendant raises the following points on appeal:
DEFENDANT'S STATEMENTS SHOULD HAVE BEEN SUPPRESSED AS THEY VIOLATED HIS RIGHT TO REMAIN SILENT AND HIS RIGHT TO COUNSEL. U.S. CONST. AMEND V, VI and XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10
A. Defendant's July 11, 2005 Statement Should Have Been Suppressed Because It Was Obtained Without The Knowledge That Criminal Complaints Were Filed Against Him And A Warrant Issued For His Arrest On The Charges Which Were The Subject Of The Interrogation
B. The July 15, 2005 And The July 22, 2005 Statements Regarding The Bergen County Offenses Should Have Been Suppressed Because They Were Obtained In Violation Of Defendant's Right to Counsel
C. The July 15, 2005 And The July 22, 2005 Statements Regarding The Middlesex County Robbery Should Have Been Suppressed Because They Were Obtained In Violation of Defendant's Right To Remain Silent
THE "BERGEN COUNTY PROSECUTOR'S MIRANDA" FORM USED IN THIS CASE IS PER SE UNCONSTITUTIONAL AS IT REQUIRES DECLARANTS TO SIMULTANEOUSLY ACKNOWLEDGE AND WAIVE THEIR RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND NEW JERSEY'S COMMON-LAW PRIVILEGE AGAINST SELF-INCRIMINATION. U.S. CONST. Amend. V and XIV; N.J. CONST. (1947) Art. I, pars. 1, 9, 10
THE WARRANTLESS SEARCH OF THE GREEN MERCURY SABLE, LEGALLY PARKED ON THE STREET IN PALISADES PARK WAS CONDUCTED IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTION BECAUSE THERE WAS NO LEGITIMATE EXCEPTION TO THE WARRANT REQUIREMENT. FURTHER, THE SECOND SEARCH OF THE WALLET ONCE REMOVED FROM THE CAR WAS CONDUCTED IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTION BECAUSE, BY THE TIME THAT SEARCH TOOK PLACE, ANY REASONABLE NOTION OF "COMMUNITY CARETAKING" HAD LONG SINCE PASSED, AND THERE WAS SUFFICIENT TIME TO GET A WARRANT, TELEPHONIC OR OTHERWISE. U.S. CONST. Amend. IV and XIV; N.J. CONST. (1947) Art. I, pars. 1, 7
A. The Seizure of the Car Violated Defendant's State and Federal Constitutional Rights to be Free From Unreasonable Seizures
B. The "Inventory" of the Car Violated Defendant's State and Federal Constitutional Rights to be Free from Unreasonable Searches and Seizures
C. Officer Ramos' Examination of the Contents of the Wallet at the Scene of the Robbery Violated Defendant's State and Federal Constitutional Rights to be Free From Unreasonable Searches
THE TRIAL COURT ERRED IN FAILING TO ADVISE DEFENDANT OF THE CONSEQUENCES OF NOT ATTENDING THE ADTC EVALUATION REQUIRED UNDER N.J.S.A. 2C:47-1 AND IN MAKING A DETERMINATION, WITHOUT FACTUAL BASIS, THAT DEFENDANT WAS NOT AMENABLE TO TREATMENT. U.S. CONST. AMEND VIII AND XIV; N.J. CONST. (1947) ART. I, PARS. 1, 12
The following facts were developed during the course of the pre-trial hearings conducted on defendant's motions to suppress. While on routine patrol at approximately 7:00 p.m. on July 10, 2005, Officer Benjamin Ramos of the Palisades Park Police Department noticed a green Mercury Sable parked on the street. The car had no front license plate or inspection sticker and appeared to be in "pretty poor condition." The windows on the driver's side were both open because the driver's side door was bound shut by a belt wrapped around the column between the front and rear of the vehicle. Officer Chris Beck, also on patrol that night, radioed dispatch to inquire about the license plate displayed on the rear of the vehicle, only to learn that there was no registration on file. Suspecting that the plate was fictitious, and the car stolen and abandoned, the officers decided to impound the vehicle.
Ramos removed the rear license plate from the vehicle and looked inside, searching the sun visors and glove compartment. He found the front license plate underneath the driver's seat, and a cell phone and wallet on the front seat. The wallet was later determined to belong to defendant. On the rear seat Ramos found a white washcloth wrapped around bullets in a clear plastic bag. While awaiting the arrival of the tow truck, the officers were called to respond to a nearby home-invasion burglary, in which the occupants of a residence were robbed and one was raped. In his haste, Ramos took the wallet and license plate, but left behind the cell phone and bullets.
Upon the officers' arrival at the residence, the victims told them that a gun had been brandished during the crime and described the perpetrators. Because Ramos thought the wallet taken from the Mercury Sable might have some connection to the robbery, he immediately retrieved it from his troop car. He confirmed the documents inside the wallet matched the description of the man who had committed the rape.
Knowing the Mercury Sable had not been towed, Ramos returned to the area where it had been parked, only to find it was gone. He collected potential evidence from the ground near where the car had been parked, cigarette butts and chewing gum, which Beck had dumped out of the vehicle while searching it.
Earlier that evening, a gas station attendant had been shot during a robbery in New Brunswick. A passing family saw the gunman fleeing the scene; he pointed a firearm at them and escaped in a ...