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State of New Jersey v. Victor Muglia


January 17, 2013


On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-11-00949.

Per curiam.


Telephonically argued November 9, 2012

Before Judges Yannotti, Harris and Hoffman.

Defendant pled guilty to first-degree murder of his mother, Karen Muglia (Karen), and the court sentenced him to thirty- eight years of imprisonment, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant appeals from the judgment of conviction dated October 8, 2010. For the reasons that follow, we affirm.


Defendant was a few weeks from his eighteenth birthday when he murdered his mother. The Family Part waived jurisdiction in the matter, and defendant was thereafter charged under Indictment No. 08-11-00949-I with first-degree murder, in violation of N.J.S.A. 2C:11-3(a)(1) and/or (2); first-degree murder during the commission or attempt to commit a robbery, in violation of N.J.S.A. 2C:11-3(a)(3); first-degree robbery, in violation of N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, in violation of 2C:39-5(d); third-degree providing false information to law enforcement officers with the purpose of hindering an investigation, in violation of N.J.S.A. 2C:29-3(b)(4); third-degree concealing or destroying evidence of a crime with the purpose of hindering apprehension, in violation of N.J.S.A. 2C:29-3(b)(1); and fourth-degree tampering with physical evidence of a crime, in violation of N.J.S.A. 2C:28-6(1).

Defendant filed a motion in the trial court to suppress evidence obtained by the police in the search of his mother's home, and to suppress the statements he gave to the police. The trial court thereafter conducted an evidentiary hearing on the motion. We summarize the evidence presented at the hearing.

On the morning of March 31, 2008, Kim Brady (Kim) became concerned about her sister Karen because Kim had not heard from her. Karen called her sister every morning, so it was unusual when no call came that day. Kim called Karen's home, and defendant answered. Defendant was a senior in high school, and Kim inquired why defendant was not in school. He responded that he was sick. When asked where his mother was, defendant told Kim that she was at work. Kim said defendant sounded "strange" on the phone.

Thereafter, Kim called Karen's boyfriend, David Priff (David), to ask him if he had heard from Karen. David had also been trying to contact Karen that morning. He called Karen's employer, who informed him that Karen had not been at work. David also called Karen's cell phone, but the calls went straight to her voicemail. Kim called Karen's house again, but this time no one answered.

Kim told her co-worker she was unable to reach her sister. The co-worker called her husband, Officer Bradley Stover (Stover) of the Piscataway Police Department (PPD), for advice. Stover told his wife that Kim should call the PPD and ask for a "welfare check" at Karen's residence. Kim made the call, and Stover was dispatched to Karen's home to conduct the check.

Stover thought he "was going to help Kim try and locate her sister[.]" Kim and her husband, William Brady (William), met Stover and another officer, Joe Mustowski (Mustowski), at Karen's house. Karen's car was not at the house, but defendant's car was parked in the driveway.

Upon arriving at Karen's home, Stover spoke to Kim and William in the driveway. Kim explained to Stover that her concerns were based in part on problems Karen was having with defendant. Kim had last spoken with Karen the night before. Karen was having disciplinary problems with defendant that day, and she had taken defendant's car keys away from him. Kim also informed Stover of the telephone calls she and David made to Karen's house that morning.

While the officers were speaking with Kim and William, defendant got out of his car in the driveway. This was the first time Stover became aware of defendant's presence. Stover asked defendant where his mother was. Defendant said he did not know.

Knowing that Karen had taken defendant's car keys away from him the night before, Kim asked defendant how he was able to get into his car. Defendant stated he got the keys out of his mother's pocketbook, which he said was inside the house.

Stover asked defendant "to take [them] to the pocketbook because [he] thought it would lead [them] to Karen." Defendant claimed he was locked out and did not have a key. According to Stover, defendant "seemed very nervous[.]" He could not stand still and was not speaking in complete sentences. Stover said that at this point, the primary focus was "[t]o locate Karen." He was concerned for her safety and whereabouts.

Mustowski checked the front door and the garage door with defendant, but found both to be locked. William walked around the side of the garage and to the rear of the house, and Stover followed him. Stover wanted to assist William in case "he was to locate Karen[.]" William opened the unlocked sliding door and indicated to Stover they could get into the house through that door. William then led Stover into the house and unlocked the front door to let Kim, defendant and Mustowski inside.

William testified that he had Karen's permission to "enter the house any time." For several years, William had done work on Karen's house. He stated that, "whenever I needed to get into the house, I was allowed." Prior to March 31, 2008, William estimated that he had entered Karen's home without anyone else present at least a dozen times. William admitted that he did not have a key, but stated that Karen had given him the code for the electronic garage door opener. That day, the opener was not working.

William, Kim, defendant, Stover and Mustowski went into the kitchen. Stover did not find the pocketbook there. From the kitchen, Kim looked down the hallway and noticed that a bedroom door had been damaged. She stated that the door had just been replaced. Stover looked at the door and observed a "small speck of blood near the handle."

The door was locked. Stover walked down the hallway to check the other bedrooms for Karen. He looked into two open bedrooms. On his way back to the kitchen, Stover checked the bathroom to see if Karen was there. He did not find Karen, but saw vomit in the toilet.

Kim was becoming increasingly upset. She demanded that defendant tell her Karen's whereabouts. Stover decided, however, it was best for Kim and William to step outside. Stover asked defendant some questions while they were alone in the kitchen. When Stover asked defendant what happened to the damaged door, defendant appeared nervous and started to cry. According to Stover, defendant was then "an interview prospect [who] could tell [them] more [about] where [his] mom was." Stover wanted to find out "where Karen was and if she was safe."

Stover decided "to err on the side of caution" and advised defendant of his Miranda*fn1 rights. As he was doing so, defendant stated that he knew his rights. Stover nevertheless finished informing defendant of his rights. Defendant again stated he understood his rights and continued to speak with Stover. Defendant told Stover, "I saw the whole thing, it was terrible[.]" He started to get upset and cry.

Defendant said that two men, named "Mike Barbs" and "Danny," came to the house and pinned him against the wall. Then, defendant stopped speaking to Stover. Stover asked defendant where these men took his mother and whether she was okay. Defendant responded that his mother was dead. He gave Stover a description of the two men and stated that a month earlier these same men had threatened his father.

Meanwhile, Mustowski found a key and gained entry to the locked bedroom. The bedroom had been converted into a television room with a couch and a flat-screen television. In the middle of the room, Mustowski saw a large blood stain on the carpet. A crowbar with bloodstains was leaning against the couch.

The officers also found blood spattered across the walls of the room and a pillow covered in blood and human tissue. In the hallway outside the room, the officers observed a vacuum cleaner with what appeared to be bone fragments and brain matter inside. Stover and Mustowski closed the door to the television room and radioed headquarters, asking for detectives to respond to the scene.

Stover decided to remove defendant from the house in order to preserve the scene. Shortly thereafter, Detective Luigi Altomonte (Altomonte) and Detective Palmisano (Palmisano) arrived and escorted defendant to police headquarters. Defendant was not handcuffed or restrained. Altomonte considered defendant a witness, so upon arriving at headquarters, he placed defendant in an interview room.

At the same time that Altomonte and Palmisano were dispatched to the Muglia home, Detective Sergeant David Powell (Powell) also arrived. He had been dispatched to the home to assist with the "investigation on a possible abduction[.]" When Powell arrived on the scene, Stover and Mustowski informed him that defendant was "possibly a witness or a victim to a possible abduction of his mother."

The other officers performed a cursory search of the home. Powell observed the damage to the television room door. Outside the room, he noticed a pair of bloody socks on the floor. Powell thought that someone had attempted to clean up the blood inside the room because there was a silver cooking pot on the floor, which contained soapy liquid stained the color of blood. The room also smelled faintly of cleaning detergent. In the kitchen area, Powell and Stover noticed smeared blood stains on the floor leading to a door to the garage.

The officers continued to search the house for Karen. They also searched defendant's car in the driveway. Powell received a radio call that Karen's car had been found parked a few blocks away, so he responded to that location with other investigators. Powell searched the car for Karen, but he did not find any relevant evidence. The officers spread out and checked leaf piles and the woods near the location. They did not find anything of note. Powell returned to the Muglia house briefly, then left.

Meanwhile, Stover continued to go through the living areas of the house. Aware of blood stains in the kitchen, Stover opened the kitchen door leading to the garage and saw steps leading to a basement. As he descended the steps, he noticed that a lamp had been knocked over and broken. He saw two doors in the basement.

The door directly in front of him was locked. The door to his left was locked and mounted backwards. In front of this latter door, Stover saw what he believed was blood on the ground, so he obtained permission from his captain, who was present at the scene, to make a forced entry through the two doors.

Stover first entered the door directly in front of the stairs by kicking it open. Inside, he found a living space, but no sign of Karen. Stover proceeded to the other door. Because it was mounted backwards, he was able to raise the hinge pins and remove the door. He set the door aside and entered a storage area.

Inside, Stover saw a large black bag in a space between the water heater and furnace and the back wall. Stover went over to the black bag. On top of the bag, Stover observed a clear plastic bag with human blood on it. Stover said he grabbed the black bag and concluded there was a human body inside.

The body was later identified as Karen. She was pronounced dead later that day. Stover estimated that from the time he arrived at the house to the time he discovered Karen's body, approximately one and one half hours to one hour and forty minutes had elapsed.

When Powell returned to police headquarters, he asked Altomonte to locate "Mike Barbs" and "Danny[,]" the men defendant claimed abducted his mother. Powell confirmed that defendant was a minor, and contacted defendant's father, Victor Muglia, II (Victor).

Altomonte responded to a known address for "Mike Barbs" in Piscataway. After talking to a resident at the address and learning that "Mike Barbs" no longer lived there, Altomonte returned to his car. He was notified that a body had been found. He returned to headquarters.

Before defendant was questioned, Victor had arrived at police headquarters. Sergeant George Trillhaase (Trillhaase) met Victor in a conference room, and interviewed him out of defendant's presence. Because defendant said initially that Karen had been abducted by two men who had previously threatened Victor, the officers wanted to know whether Victor would confirm or deny the story.

According to Powell, Victor was "relatively calm." After questioning him about the alleged threats, Trillhaase told Victor that he had the right to be present during defendant's interview. Trillhaase informed Victor that defendant was a possible suspect in the homicide. He also advised Victor of his son's rights by reading him Miranda warnings. Trillhaase asked Victor to initial the Miranda card acknowledging each right. After Victor signed off on the card for each right, the officers recorded Victor's statement and repeated the Miranda rights.

The officers asked for Victor's consent to interview defendant. Victor gave permission and told Trillhaase he did not wish to be present during the interview. He said that he wanted to go outside the building, to smoke and walk around. Trillhaase gave Victor his cell phone number in the event he changed his mind.

Trillhaase and Powell entered the interview room where defendant was waiting. Trillhaase advised defendant of his Miranda rights. He told defendant that his father had given the officers permission to speak with him and did not want to be present during the interview. Defendant signed the Miranda card and agreed to speak with the officers.

When the officers entered the room, they observed that defendant was calm and appeared to have been resting. Defendant was oriented, alert, and did not appear to be under the influence of any drugs. The officers had no difficulty understanding defendant, and defendant had no difficulty understanding the officers' questions. Defendant's answers were responsive to the questions asked. The officers recorded the entire interview with defendant.

Defendant first maintained that two men invaded the Muglia house, assaulted him with a knife and beat his mother while they were in the television room. He claimed that the two men then dragged Karen out of the house and left. But once the officers confronted him with his story's inconsistencies and physical evidence contradicting that story, defendant confessed to killing his mother.

Defendant stated that, early that morning, he went to the garage and grabbed a crowbar. He walked into the television room where his mother was asleep on the couch. Then, he raised the crowbar and struck his mother in the head "a bunch" of times. During the assault, her body ended up on the floor. Because his mother was not "exactly dead" yet, defendant struck her in the back until she died. He said the blood went "everywhere."

Defendant then found some plastic and wrapped Karen's body in it. He dragged the body by the feet through the kitchen, into the garage, and down to the basement where he hid the body behind the furnace. Defendant went back upstairs to clean up the house. He vacuumed bone fragments and human tissue in the television room, wiped blood from the kitchen floor, and filled a pot with a solution to clean the television room. Later that morning, he moved Karen's car to a dead end street a few blocks away so people would think she was not at home.

Defendant admitted that shortly before he killed his mother, he searched online for a "quick and painless" way to do it. He denied that the argument they had the day before prompted the murder. Rather, he said that he just "always wanted" to "see someone die." While being processed at the station, defendant corrected his previous statement, admitting that he had killed his mother the night before, not in the morning.

On June 16, 2010, the trial court issued an order and written opinion denying defendant's suppression motion. The court found that the officers' entry and search of the home was justified under the community caretaking and emergency aid doctrines and by William's consent.

The court also determined that defendant's statements at home were not subject to Miranda and had been properly elicited by the police in emergent circumstances. In addition, the court found that Victor validly exercised his right not to be present for defendant's interrogation, and defendant gave his statements after a knowing, voluntary and intelligent waiver of his Miranda rights.

On August 6, 2010, defendant pled guilty to first-degree murder as charged in count one of the indictment. As part of the plea agreement, the State dismissed the remaining counts and agreed to recommend that the court sentence defendant to thirty- eight years of imprisonment subject to NERA. The plea agreement preserved defendant's right to appeal the denial of his motion to suppress. On October 8, 2010, the court sentenced defendant pursuant to the terms in the plea agreement. This appeal followed.

Defendant raises the following arguments for our consideration:



A. The Community Caretaking Doctrine Is Not Applicable In The Home.

B. The Police Entry And Search Was Not Valid Under The Community Caretaking Doctrine's "Objective Reasonableness" Test.







A. The Police Denied Victor, A Juvenile, The Protections Set Forth In Presha And Its Progeny Cases.

1. Victor's Statement In The House.

2. Victor's Statements At Police Headquarters.

B. Officers Powell And Trillhaase Unlawfully Continued Interrogating Victor After He Asserted His Right To Silence.





A. The Trial Court Erred In Finding Aggravating Factor #1.

B. The Trial Court Erred In Finding Aggravating Factor #3.

C. The Trial Court Should Have Found Mitigating Factor #4.


We turn first to defendant's contention that the trial court erred by denying his motion to suppress evidence obtained in the search of Karen's home.

We note initially that, when reviewing a trial court's order on a suppression motion, we must uphold the trial court's factual findings so long as they are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)).

We defer to the trial judge's findings when they are "'substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

The United States Constitution and the New Jersey State Constitution guarantee citizens the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. A warrant to search will not be issued except "upon probable cause." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Therefore, warrantless searches "are presumptively unreasonable" unless they fall within a recognized exception to the warrant requirement. State v. Johnson, 193 N.J. 528, 552 (2008) (quoting Elders, supra, 192 N.J. at 246). The State bears the burden of showing that a warrantless search falls within one of these exceptions. Ibid.

A. The Community Caretaking Doctrine.

Defendant contends that the court erred in finding the community caretaking doctrine justified the warrantless entry and search of Karen's home. We do not agree.

One exception to the warrant requirement is the community caretaking doctrine, which permits law enforcement officers to undertake a warrantless search when they act in a community caretaking function rather than in a law enforcement or a criminal investigatory role. State v. Bogan, 200 N.J. 61, 73 (2009) (citing Cady v. Dombrowski, 413 U.S. 433, 439-48, 93 S. Ct. 2523, 2527-31, 37 L. Ed. 2d 706, 713-18 (1973)). When carrying out their community caretaking responsibilities, law enforcement officers perform "a wide range of social services" including providing aid to those in danger of harm. Ibid. (citing Debra Livingston, Police, Community Caretaking, and the Fourth Amendment, 1998 U. Chi. Legal F. 261, 271-72 (1998)). To determine whether the doctrine applies, we consider whether the officers' conduct was "objectively reasonable" under the totality of the circumstances. Id. at 81 (citing State v. Diloreto, 180 N.J. 264, 278 (2004)).

Here, the trial court found that, when the officers entered the Muglia home, they were trying to locate Karen, not investigate a criminal act. The court found that the officers "reasonably believed based on the totality of circumstances that Karen was missing and/or a person who might be in need of immediate assistance." The court determined that the "police acted reasonably under the circumstances, and the warrantless entry of the house was justified under the community caretaking function."

Defendant argues that the community caretaking doctrine does not permit the police to make a warrantless entry into a private residence. In support of this contention, defendant relies upon Ray v. Twp. of Warren, 626 F.3d 170 (3d Cir. 2010). However, in State v. Witczak, 421 N.J. Super. 180, 186 (App. Div. 2011), we refused to follow Ray, noting that our Supreme Court had applied the doctrine to the warrantless search of a home. We see no reason to depart from our holding in Witczak.

Defendant additionally argues that the trial court's conclusion that the community caretaking doctrine applied here was erroneous because once Stover arrived at the house, he did not see anything unusual that would warrant a welfare check. We cannot agree. Karen had been reported missing for several hours when Stover arrived at the house. Her sister was concerned that she had not been able to contact Karen. We are convinced that Stover had sufficient facts to justify entry into the home to check on Karen's whereabouts.

Defendant argues, however, that the search of the house was more expansive than necessary. He maintains that the officers could have engaged in less intrusive measures first, such as looking into the house for signs of trouble, or calling into the house to see if someone would respond. He also claims that the room-by-room search of the house was unlawful. Again, we cannot agree.

"The question is not whether the police could have done something different but whether their actions, when viewed as a whole, were objectively reasonable." Bogan, supra, 200 N.J. at 81 (citing Diloreto, supra, 180 N.J. at 278). We are satisfied that the scope of the search did not go beyond the reason that justified the initial entry into the home, which was to locate Karen and to render assistance to her if required.

B. The Emergency Aid Doctrine.

Defendant next argues that the trial court erred by finding that the emergency aid doctrine justified the search of the home. Again, we disagree.

To justify a warrantless search based on the emergency aid doctrine, "the State must prove only that (1) the officer had an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or to prevent serious injury and (2) there was a reasonable nexus between the emergency and the area or places to be searched." State v. Edmonds, 211 N.J. 117, 132 (2012) (internal quotations omitted).

As we have explained, the officers' initial entry into the home was justified under the community caretaking doctrine. Once the officers were inside the home, they found evidence which provided them with an objectively reasonable basis for believing that Karen might still be in the house and in need of medical attention. As the trial court determined, the officers were justified in searching other rooms in the house to provide emergency aid.

Defendant argues, however, that the officers did not discover the bloodstains, crowbar and human tissue until approximately twenty to twenty-five minutes after they first entered the house. He contends that, since the officers did not find Karen's body until some time later, there was no emergency. Defendant argues that the officers' actions indicated that they had concluded Karen was dead long before they found her body.

In our view, these contentions are without merit. As we have explained, the officers did not immediately enter the television room because Stover was questioning defendant about Karen's whereabouts, and the room was locked. When the officers entered the room and found the bloodstains, crowbar and human tissue, they reasonably believed Karen may be in need of further assistance.

The officers stopped looking for Karen in the house after defendant said that intruders had entered the home, beat Karen and took her away. The officers resumed their search for Karen after her car was found. They did not find her there. At that point, the officers had an objectively reasonable belief that Karen might still be in the home and in need of emergency assistance.

C. Consent To Search.

Defendant further argues that the trial court erred by finding the officers had consent to search Karen's home. We do not agree.

Consent to search is another exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2044, 36 L. Ed. 2d 854, 858 (1973). "Consent may be obtained from the person whose property is to be searched." State v. Maristany, 133 N.J. 299, 305 (1993). Valid consent may also be obtained from a "third party who possesses 'common authority over or other sufficient relationship' to property sought to be inspected[.]" State v. Suazo, 133 N.J. 315, 320 (1993) (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974)).

Here, the trial court determined that William authorized the police to enter and search Karen's home. At the suppression hearing, William testified that, from the time of Karen's divorce in 2003, he had authority to enter her house at all times. He said he had entered the home on his own on multiple occasions. Karen had given him the code for the keypad that allowed him to enter through the garage.

Defendant asserts that he had refused to consent to the officers' entry into the home, and his refusal to consent overrode William's consent. The record does not support this argument.

Testimony at the suppression hearing indicated that one of the officers asked defendant to go into the house. Defendant tried to enter the house through the front door but said it was locked and he did not have the key. Defendant also tried to enter through the garage but told the officers the keypad was not working. Defendant never explicitly refused to permit the officers to enter the home.

The fact that William led Stover into the house through an unlocked sliding door, rather than through the garage, is irrelevant. The trial court found that William credibly testified he had authority to enter the home at all times. We are satisfied that the court's finding that William was authorized to consent to the entry and search of the home was supported by sufficient credible evidence in the record. Elders, supra, 192 N.J. at 243.

We therefore conclude that the trial court correctly denied defendant's motion to suppress the evidence obtained by the police in Karen's home.


Defendant further argues that the trial court erred by refusing to suppress the statements he gave to the police in the home and at police headquarters. In our view, these arguments are without merit.

A parent or legal guardian should be present "whenever possible" when a juvenile is interrogated. State v. Presha, 163 N.J. 304, 315 (2000). Law enforcement officers are therefore required to use their best efforts to locate a parent or legal guardian before they question a minor. Id. at 316 (citing In re J.F., 286 N.J. Super. 89, 98 (App. Div. 1995)). The parent's role is to assist the juvenile in understanding his or her Miranda rights and to determine whether to intelligently waive them. Id. at 315.

A juvenile's confession is admissible if the State establishes beyond a reasonable doubt that the juvenile knowingly, intelligently, and voluntarily waived his Miranda rights in light of all of the circumstances. Id. at 313. The inquiry focuses on whether the suspect's will has been overborne by police conduct. Ibid.

Relevant considerations include the suspect's "'age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.'" Ibid. (quoting State v. Miller, 76 N.J. 392, 402 (1978)).

If a juvenile is interrogated without a parent present, the parent's absence is considered a "highly significant factor among all other factors and circumstances." Id. at 315. If a parent is deliberately excluded from a juvenile's interrogation, the juvenile's confession "almost invariably will be suppressed." Id. at 320.

Where a parent is unavailable or declines to be present during the questioning, the officers must "conduct the interrogation with 'the utmost fairness and in accordance with the highest standards of due process and fundamental fairness.'" Id. at 317 (quoting In re S.H., 61 N.J. 108, 115 (1972); State v. R.W., 115 N.J. Super. 286, 296 (App. Div. 1971)).

A. Statements in the House.

Defendant maintains that the statements he gave to the police at the home should have been suppressed. He contends that those statements were not freely and voluntarily given. He says he was surrounded by police, and his aunt was accusing him of having done "something awful to his mother." Defendant also says that he had not taken his medication for his bipolar disorder that morning, and the police made no attempt to locate his father, even though they knew he was not yet eighteen years old. Defendant acknowledges that Stover informed him of his Miranda rights, but says he was never informed of his right to have an interested adult present during the questioning.

We are convinced, however, that the trial court correctly determined that suppression of defendant's statements in the home was not required. The court correctly found that the statements elicited by the police in the home were admissible because, under State v. Boretsky, 186 N.J. 271, 283 (2006), statements provided to officers performing their emergency-aid functions do not violate a suspect's right against self-incrimination. The trial court also correctly reasoned that, in an emergency situation, the police need not seek out a parent before questioning a juvenile.

B. Statements at Police Headquarters.

Defendant further argues that the court erred by refusing to suppress the statements he gave to the police at police headquarters. We do not agree.

In its opinion, the trial court noted that the police had located Victor and brought him to police headquarters. He was informed that Karen had been murdered, and the police wanted to question his son. The court found that Victor was told he had the right to be present when defendant was questioned, and Victor stated unequivocally that he did not want to be present.

The court additionally found that Victor was informed of defendant's rights and told he could refuse to allow the police to question him. Victor stated he understood what he had been told, and he waived his son's rights. Victor also was told he could stop the interview at any time, and the officer gave him his cell phone number if he wished to exercise that right.

The trial court determined that Victor validly exercised his right not to be present for defendant's interview. The record supports that determination. See State ex rel. Q.N., 179 N.J. 165, 174 (2004) (holding that State had sufficiently proven juvenile's mother willingly chose not to be present for interrogation of twelve-year old defendant).

The court also determined that, considering the totality of circumstances, the State had demonstrated beyond a reasonable doubt that defendant's waiver of his Miranda rights was knowing, voluntary and intelligent. The court noted that, at the time defendant was questioned, he was three weeks from his eighteenth birthday, and several months from graduating from high school.

The court additionally pointed out that defendant was advised of his Miranda rights at home and again at the police station. Both times, defendant indicated that he understood his rights and waived them. The court noted that defendant had only been in custody several hours before he was questioned.

The court also noted that defendant was repeatedly asked whether he needed anything. The questioning was not repetitious or prolonged. The court said that defendant seemed calm, collected and relaxed throughout most of the questioning. The court found that defendant's "will was not overborne by police conduct." We are satisfied that the record supports the court's findings.

Defendant argues, however, that at a "pivotal moment in the interrogation," he asserted a right to remain silent. He contends that the police should have stopped the interrogation at that time. He relies upon following colloquy:

[Defendant]: I don't need to tell you anything. You know?

[Powell]: No. You do need to tell us.

[Defendant]: But I'm sure you know though.

[Powell]: Well . . . but you still need to tell me, Vic.

[Defendant]: I just don't want to say it.

The trial court determined that, in this colloquy, defendant was not asserting his Miranda rights. Rather, defendant was "merely telling the officers that they already knew what happened" and they did not need for him to tell them. We are satisfied that the court's interpretation of defendant's remarks is supported by the record. In our view, the court correctly found that defendant's statements could not be reasonably construed as an assertion of his Miranda rights.


Defendant also challenges his sentence. Here, the trial court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense, including whether it was "committed in an especially heinous, cruel, or depraved manner"); three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter). The court also found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (no prior criminal history), but determined that aggravating factors one, three and nine outweighed it. As we stated previously, the court sentenced defendant in accordance with his negotiated plea agreement, and imposed a thirty-eight-year prison term, subject to NERA.

Defendant argues that the trial court erred by finding aggravating factor one. He asserts that there is no evidence he intended to inflict additional pain on his mother, or was personally gratified by her suffering or death. Defendant also argues that the court erred by finding aggravating factor three. He asserts that there is no evidence he is likely to re-offend.

In addition, defendant argues that, in view of his history of drug use and psychological problems, the court should have found mitigating factor four, N.J.S.A. 2C:44-1(b)(4) ("substantial grounds tending to excuse or justify [] defendant's conduct, though failing to establish a defense").

We are convinced that these arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). We note, however, that the record fully supports the trial court's findings of aggravating factors one and three, and the record did not support a finding of mitigating factor four.

We are satisfied that the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

We have considered all of the other arguments raised by defendant and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).


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