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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. ...