On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-06-0204.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2012
Before Judges Sapp-Peterson and St. John.
On March 21, 2009, a grand jury returned an indictment against defendant, Matthew DiPaolo, on two counts: (1) forgery in violation of N.J.S.A. 2C:21-1, by altering a Darvocet prescription from ten to one hundred pills (count one); and (2) attempting to obtain a controlled dangerous substance by fraud in violation of N.J.S.A. 2C:5-1/2C:35-13, (count two). Defendant entered a conditional plea of guilty to count two of the indictment, while reserving his right to appeal from the motion judge's denial of the motion to suppress defendant's confession given to investigating police officers prior to his arrest. R. 3:9-3(f). Defendant now appeals from an order entered on December 31, 2010, denying his motion to suppress. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The record of the Jackson-Denno hearing, Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), discloses the following facts. On March 21, 2009, while investigating a complaint about a fraudulent prescription, two police officers entered the Rite Aid where defendant was waiting to have his prescription filled and motioned him to come outside so they could speak with him. The officers' investigation was motivated by a telephone call to police that a fraudulent prescription had been submitted. The pharmacist contacted the doctor who wrote the prescription script and discovered that the amount of medication written by the doctor did not match the amount on the slip submitted by defendant to the pharmacy. The original slip had been written for ten Darvocet pills but the ten had been changed to one hundred.
At the Jackson-Denno hearing, Hackettstown police officer Glen Brotzman stated that he asked defendant to follow him and his partner Sergeant James Urban out of the pharmacy. Brotzman testified that neither he nor his partner exerted any physical control over defendant during the questioning. Once outside, he advised defendant that the prescription given to the pharmacist by defendant "was fraudulently doctored by putting another zero" after the number ten. Brotzman stated that defendant was not in custody or under arrest at that time. Defendant then acknowledged that he did change the number because he did not want to keep coming back to the pharmacy because he has chronic back pain.
Defendant testified that after being motioned by the officers to exit, he was directed to stand against a wall outside the Rite Aid where the officers proceeded to ask him questions about the prescription slip. He stated that he did not believe he was free to walk away. Brotzman denied any actions by them in this regard.
Defendant was not read his Miranda rights prior to police questioning him outside the pharmacy. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Once defendant was taken to the police station, he was given his Miranda warnings, after which he made no further statements to the police officers.
The motion judge determined that the interchange between the officers and defendant was an investigative discussion, rather than a custodial interrogation, thus obviating the need for the police officers to issue a Miranda warning. The judge denied defendant's motion to suppress his statement.
Following the ruling, defendant pled guilty to attempt to obtain a controlled dangerous substance by fraud. The forgery count was dismissed. Defendant was subsequently sentenced to two years probation, contingent on serving thirty days in county jail, with an option to apply to the corrections labor assistance program in lieu of jail time. This appeal ensued.
We turn to defendant's contention that the motion judge erred in refusing to suppress the statements he made to the police. Our Supreme Court has explained the standard of review applicable to an appellate court's consideration of a ...