On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-07-1237.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued (A-5242-09T2) and Submitted (A-5394-09T2) March 27, 2012
Before Judges Reisner, Simonelli and Hayden.
Defendants Frederick Winfred Robinson and Clyde Anthony Heath were tried together on charges arising from a home invasion robbery. A jury convicted Heath of third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2; conspiracy to commit third-degree burglary, N.J.S.A. 2C:5-2; second-degree robbery, N.J.S.A. 2C:15-1; and second degree burglary, N.J.S.A. 2C:18-2. The jury convicted Robinson of third-degree conspiracy to commit theft; conspiracy to commit third-degree burglary; robbery; third-degree burglary; and fraudulent use of a credit card, N.J.S.A. 2C:21-6h.*fn1
Heath was sentenced to an aggregate term of twenty years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Robinson received the same aggregate twenty-year NERA sentence, plus a consecutive sentence for the credit card fraud, consisting of five years with a two-and-one-half year parole bar. Both defendants appealed from their convictions and sentences; we consolidated the appeals for purposes of this opinion.
In his appeal, Heath presents the following points of argument for our consideration:
POINT I: THE TRIAL COURT ERRED IN ADMITTING MR. HEATH'S TAPED STATEMENT INTO EVIDENCE BECAUSE IT WAS THE PRODUCT OF A MIRANDA VIOLATION.
POINT II: MR. HEATH WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL FAILED TO REQUEST A WADE HEARING TO DETERMINE THE ADMISSIBILITY OF THE VICTIM'S OUT-OF-COURT AND IN-COURT IDENTIFICATION OF MR. HEATH.
POINT III: THE TRIAL COURT ERRED IN PERMITTING PREJUDICIAL TESTIMONY CONCERNING MR. HEATH'S PRIOR CRIMINAL HISTORY.
POINT IV: THE TRIAL COURT IMPROPERLY DENIED MR. HEATH'S MOTION FOR A JUDGMENT OF ACQUITTAL BECAUSE THERE WAS INSUFFICIENT EVIDENCE FOR A REASONABLE JURY TO FIND THAT HE COMMITTED THE OFFENSE OF CONSPIRACY BEYOND A REASONABLE DOUBT.
POINT V: MR. HEATH'S SENTENCE IS EXCESSIVE AND NOT SUPPORTED BY THE PROPER ASSESSMENT OF AGGRAVATING AND MITIGATING FACTORS.
We decline to address Heath's point II without prejudice to his right to file a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Based on our review of the record, we find no merit in any of his remaining contentions and we affirm Heath's conviction and sentence.
In his appellate brief, Robinson raises the following contentions:
POINT I: DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, PAR 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN DEFENDANT'S STATEMENTS TO POLICE WERE IMPROPRERLY ADMITTED INTO EVIDENCE BY THE PROSECUTOR THROUGH IMPEACHMENT (Not Raised Below).
POINT II: THE DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN THE PROSECUTOR ADMITTED MR. ROBINSON'S CO-DEFENDANT'S STATEMENTS INTO EVIDENCE WITHOUT PROPERLY DELETING INDIRECT REFERENCES TO MR. ROBINSON FROM THAT STATEMENT (Not Raised Below).
POINT III: THE PROSECUTOR'S ERROR IN USING DEROGATORY LANGAUAGE AIMED AT THE DEFENDANT IN HIS SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL, U.S. CONST., Amend VI, XIV; N.J. CONST., Art. I, pars. 1, 9, 10 (Not Raised Below). POINT IV: THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
In a pro se supplemental brief, Robinson contends that:
THE DEFENDANT WAS DEPRIVED [OF] HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE AND WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.
We decline to consider Robinson's pro se argument, without prejudice to his right to raise those issues in a petition for post-conviction relief. See Preciose, supra, 129 N.J. at 460; Sparano, supra, 249 N.J. Super. at 419. We find no merit in Robinson's points I and III. However, based on our review of the record we agree that the erroneous introduction of portions of Heath's recorded statement requires reversal of Robinson's conspiracy convictions. Accordingly, we affirm his convictions for robbery, burglary and credit card fraud, and we affirm the sentences imposed for those convictions. But we reverse the convictions for conspiracy to commit theft and conspiracy to commit burglary, and we vacate the sentences imposed for those convictions only. We remand for re-trial on those two charges, should the State choose to re-try him. Should the State choose not to re-try Robinson, the judgment of conviction must nonetheless be corrected.
We briefly summarize the facts, to place the pre-trial Miranda*fn2 hearings in context. On January 31, 2008, in Jersey City, two men broke into a private residence in the middle of the night and began searching for valuables to steal. On the top floor they found the female homeowner, who was sleeping with her six-year-old son and ten-year-old daughter because her husband was away on a ski trip. One of the robbers punched the woman in the head. They then forced her to go downstairs and stole her purse and credit cards. After the robbers left, the woman looked out her window and caught sight of a black SUV parked in front of the house. She called the police and reported the robbery. She later called the credit card companies, learned someone had used one of her credit cards, and alerted the police. They traced the transaction to a nearby gas station, which had a security camera that had recorded a black SUV parked at one of the gas pumps and had also recorded defendant Robinson making a purchase at the station's convenience store. After watching the security video, the victims identified Robinson as one of the robbers. And the police found several of the mother's credit cards discarded in a garbage can near the station's gas pumps. A few days after the robbery, Robinson was arrested for a different crime. When he was arrested, he was wearing the same distinctive jacket that he was seen wearing in the security video.
While he was in custody, the police questioned Robinson on the morning of February 7, 2008, concerning the home invasion robbery. During the questioning, Robinson began suffering from severe drug withdrawal symptoms and had to be taken to the hospital.*fn3 When he was returned to the police station from the hospital a few hours later, he made a confession. However, Judge Kenny later suppressed the statement after an extended Miranda hearing. She found that, at the time Robinson agreed to give his statement, he "knew he was a suspect" in the home invasion, and therefore State v. A.G.D., 178 N.J. 56 (2003), did not require suppression of the statement. However, in her oral opinion of June 18, 2009, she found that the State failed to prove that Robinson's confession was voluntary, due to his obviously debilitated physical and medical condition. She found he was "slumped over, coming out of a ...