December 12, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
REYNARD MCNEIL A/K/A ARNEZ JAMISON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-11-2002.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2012
Before Judges Ashrafi and Hayden.
Following the denial of his motion to suppress his statements, defendant Reynard McNeil entered into a plea agreement whereby he pled guilty to fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4). As part of the agreement, the State recommended eighteen months in State prison with eighteen months parole ineligibility and agreed to dismiss other pending charges. Defendant reserved the right to appeal from the denial of his motion to suppress. On appeal, defendant raises the following contentions for our consideration.
POINT I: THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS WHERE THE STATE FAILED TO PROVIDE MIRANDA WARNINGS IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS.
A. The Statements Made By The Defendant While In Custody Were Not Made Voluntarily And As Such, Should Have Been Suppressed As A Matter Of Law.
B. The Two-Step Interrogation Method Utilized Here Violated Defendant's State Law Privilege Against Self-Incrimination POINT II: BECAUSE THE DEFENDANT'S TESTIMONY AT THE PLEA HEARING DID NOT SET OUT A FACTUAL BASIS ENCOMPASSING ALL OF THE ELEMENTS OF A SECOND-DEGREE AGGRAVATED ASSAULT, THE PLEA SHOULD BE VACATED AND THE MATTER SHOULD BE REMANDED TO THE COURT FOR FURTHER PROCEEDINGS.
Having considered defendant's contentions in light of the applicable legal principles, we affirm.
The record reflects the following facts. On April 16, 2009, a man called Snuggy allegedly fired a gun at Lovitt Trowel's vehicle. On August 6, 2009, defendant was arrested with a few other youths for wandering to commit a controlled dangerous substance offense, N.J.S.A. 2C:33-2.1. The arresting officer verbally informed defendant of his Miranda*fn1 rights at the time of the arrest. At the police station, when another officer was processing defendant, defendant mentioned that he was known as Snuggy. The officer informed Sergeant Nestor about defendant's street name, and Nestor then spoke to defendant in his office. The facts concerning this conversation were strongly disputed.
According to Nestor, upon learning defendant's street name, he spoke with defendant for approximately two minutes. Nestor testified that "[t]he first thing I did when I sat him down, I explained his rights verbally to him. I told him he had the right to remain silent and everything he said can and will be used against him in court." The sergeant then asked defendant if he had ever been to Brunswick Estates and defendant responded that he had a problem there with a person named Lovitt. Nestor next asked defendant whether he would provide a statement on videotape, explaining that he could be criminally charged with any information he gave. Defendant agreed.
According to defendant, Nestor showed defendant a picture of Trowel and asked if he knew and had a problem with Trowel. When defendant answered affirmatively, Nestor asked defendant to describe what happened during the April 16 incident, and defendant did. During this conversation, the sergeant did not tell defendant that he had the right to remain silent or that any statement could be used against him. Further, Nestor promised that if defendant cooperated, he would let him go on the wandering charge.
Following this meeting, Nestor and Officer Ludwig conducted a videotaped interview with defendant in an interrogation room. Initially, Ludwig informed defendant that they wanted to speak to him about another incident and that he was not being charged with anything at the time. Ludwig informed defendant of his Miranda rights and defendant signed a statement acknowledging receiving the warning and waiving his rights.
The officers proceeded to question defendant about the April 16 incident. Defendant stated that he had a "beef" with Trowel. When he saw Trowel that day in Brunswick Estates, defendant left to get a gun, returned and shot at Trowel's car three or four times while he was driving it. Defendant stated that he was pointing the weapon straight at the car and shooting.
Subsequently, a Hudson County Grand Jury indicted defendant on four counts: possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b; second-degree aggravated assault, N.J.S.A. 2C:12-1b(2); and fourth-degree aggravated assault by pointing a firearm at or in the direction of another, N.J.S.A. 2C:12-1b(4).
On April 2, 2010, Judge Joseph V. Isabella held a hearing on defendant's motion to suppress his videotaped statement at which both Nestor and defendant testified. Shortly thereafter, the judge issued a comprehensive written statement denying the motion. The judge credited the testimony of the police officer and found that defendant was informed of his Miranda rights three times, i.e., at his arrest, during the brief conversation with Nestor, and prior to the videotaped statement. He noted that defendant verbally and in writing acknowledged that he understood his rights and wished to waive them. In evaluating the voluntariness of the statement under a totality of the circumstances test, the judge found particularly significant "the relaxed manner which defendant answered the questions, the relatively short period of time in which defendant gave those statements, the fact that defendant was an adult, and the lack of physical punishment or mental exhaustion involved."
On April 23, 2010, defendant entered a plea of guilty to count four of the indictment, aggravated assault by pointing a firearm at or in the direction of another, N.J.S.A. 2C:12-1b(4). In providing a factual basis, defendant stated that on April 16, 2009, when he was in the area of Brunswick Estates, he pointed a working firearm at or in the direction of Trowel and that Trowel clearly saw him pointing the firearm at him. On July 16, 2010, Judge Isabella sentenced defendant to eighteen months in jail with eighteen months parole ineligibility and ordered payment of the appropriate fines.
First, defendant argues that his statement to the police should have been suppressed because the State failed to provide the appropriate Miranda warnings before defendant gave his statement. We disagree.
The Fifth Amendment to the United States Constitution and this State's common law guarantee criminal defendants a right against self-incrimination. State v. Presha, 163 N.J. 304, 312-13 (2000). Admissibility of a defendant's custodial statements requires a knowing, intelligent, and voluntary waiver of that right. Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07. Absent such waiver, custodial statements generally may not be used against a defendant. State v. O'Neill, 193 N.J. 148, 168 (2007). To determine whether a waiver resulted from a voluntary decision, we consider the totality of the circumstances, including "the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." State v. Knight, 183 N.J. 449, 462-63 (2005) (citing State v. Galloway, 133 N.J. 631, 654 (1993)).
Our review of a denial of a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We defer to the judge's factual findings if "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). Because the judge observes the character and demeanor of the witnesses, he or she is better positioned to determine credibility. State v. Locurto, 157 N.J. 463, 474 (1999).
Here, the judge found credible the testimony of the police sergeant that the police gave defendant Miranda warnings upon his arrest, before the brief questioning by Nestor, and before taking his videotaped statement. Hence, defendant's claim that the statement resulted from a two-part interrogation where the police first obtained the confession and then gave defendant his warnings is not supported by the credible evidence. Moreover, the judge found that the totality of the circumstances, including his viewing of defendant's casual and relaxed demeanor during the interrogation, showed that the statement was given voluntarily. We conclude that Judge Isabella made thorough and comprehensive findings supported by sufficient credible evidence, and correctly ruled that no violation of defendant's Fifth Amendment rights had occurred and defendant's voluntary statement could be admitted into evidence against him.
Next, defendant maintains that he did not provide an adequate factual basis for his plea to aggravated assault under N.J.S.A. 2C:12-1b(4) because he did not state any fact showing that his action manifested extreme indifference to human life. We are not persuaded.
Before accepting a plea, the court must be satisfied that a factual basis for the plea exists. R. 3:9-2; State v. Barboza, 115 N.J. 415, 420-21 (1989). This requirement serves to protect "a defendant who voluntarily and knowingly pleads, but without recognition that his or her conduct does not fall within the charge." State ex rel. T.M., 166 N.J. 319, 326 (2001). Additionally, it provides a record for an appellate court in the event that the plea is challenged. Ibid. (citing Barboza, supra, 115 N.J. at 421).
The "factual basis for a plea 'must obviously include defendant's admission of guilt of the crime or the acknowledgment of facts constituting the essential elements of the crime.'" Id. at 333 (quoting State v. Sainz, 107 N.J. 283, 293 (1987)). A "trial court must be 'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" Barboza, supra, 115 N.J. at 422 (quoting State v. Stefanelli, 78 N.J. 418, 439 (1979)). A factual basis "should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy." T.M., supra, 166 N.J. at 327 (citations omitted).
On the other hand, we will not find a factual basis for a plea where defendant is equivocal about committing the crime and is unable to provide facts about the crime when asked. State v. Henries, 306 N.J. Super. 512, 536-39 (App. Div. 1997). Where "a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence must be vacated, the dismissed charges reinstated, and defendant allowed to re-plead or to proceed to trial." Barboza, supra, 115 N.J. at 420.
Here, we must determine whether defendant testified to facts showing he knowingly pointed a firearm at or in the direction of another "under circumstances manifesting extreme indifference to the value of human life." N.J.S.A. 2C:12-1b(4) During the plea hearing, defendant admitted that he pointed a firearm, which he knew was in working condition, at Trowel and that Trowel saw him do so. As we have stated previously, brandishing a weapon at another person is sufficient to support a conviction under this statute. State v. Parolin, 339 N.J. Super. 10, 21 (App. Div. 2001), rev'd on other grounds, 171 N.J. 223 (2002).
This case differs from Henries, where we found no factual basis for a plea under N.J.S.A. 2C:12--1b(4) based upon the defendant's vague and hesitant statements. 366 N.J. Super. at 536-39. By contrast, at the plea hearing, defendant was unequivocal in his statement that he committed the crime. Additionally, he was able to provide swift responses to all questions regarding the facts surrounding the incident.
We are convinced that the facts here demonstrate that defendant acted "under circumstances manifesting extreme indifference to the value of human life." Accordingly, we agree with the trial judge that the factual basis for the guilty plea was established and we discern no error in the judge's acceptance of defendant's plea.