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State v. Conway

Superior Court of New Jersey, Appellate Division

July 3, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,


Submitted November 28, 2012

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-06-1109.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

Before Judges Axelrad and Nugent.


Following the denial of her motion to suppress the inculpatory statement she gave to law enforcement authorities, defendant Gina Marie Conway pled guilty to manslaughter and armed robbery, and was sentenced to an aggregate fifteen-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant contends that her suppression motion should have been granted and that her sentence is excessive. We affirm.

On September 22, 2006, defendant and one of two co-defendants, Kelvin Leerdam, went to a hotel room in Fort Lee, where they bound, gagged and robbed Allan Plowden and Giselle Nieves.[1] Leerdam shot and killed a third victim, David Taylor. Six days later, on September 28, 2006, at approximately 12:35 a.m., police officers arrested defendant in a New York City subway. The officers transported defendant to a New York detective precinct where they questioned her from 1:00 a.m. to 4:50 a.m. Defendant gave a lengthy, inculpatory statement.

A Bergen County grand jury charged defendant and two co-defendants in a twelve-count indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (counts two and seven); first-degree robbery, N.J.S.A. 2C:15-1 (counts three, four, and five); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1(b) (count six); first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts eight and nine); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(a) (count ten); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count eleven). In the same indictment, the grand jury also charged a fourth person, Turon Gholston, with receiving stolen property, N.J.S.A. 2C:20-7 (count twelve).

Defendant subsequently filed a motion to suppress her statement, which the court denied. Thereafter, she negotiated a guilty plea. She agreed to plead guilty to count one of the indictment as amended to manslaughter, and to count three of the indictment. She also agreed to testify truthfully at the trial of the co-defendants. In exchange, the State agreed to recommend an eighteen-year sentence subject to NERA. As promised, defendant testified at the trial of the co-defendants.

At sentencing, the court found as aggravating factors: number three, the risk that defendant would commit another offense based on her use of marijuana, some experimentation with cocaine, and her arrest record, which included three prior arrests; number six, the extent of her prior record, including two prior drug-related convictions; and number nine, the need to deter. N.J.S.A. 2C:4-1(3), (6) and (9). The court also found mitigating factor number twelve, her willingness to cooperate with law enforcement authorities by testifying at the co-defendants' trial. N.J.S.A. 2C:44-1b(12). After balancing the aggravating and mitigating factors, the court imposed a seven-year prison term on count one with an eighty-five percent period of parole ineligibility as required by NERA, and a concurrent fifteen-year sentence with an eighty-five percent period of parole ineligibility as required by NERA on count two. The court also imposed appropriate assessments and penalties. The court denied defendant's motion for reconsideration. This appeal followed.

Defendant argues two points:


We first address defendant's argument that her confession should have been suppressed because it was involuntary. Mark Bendul, a detective employed by the Bergen County Prosecutor's Office, was the only person to testify at the suppression hearing.

Detective Bendul explained that after he and other detectives arrested defendant in a New York subway at 12:35 a.m. on September 28, 2006, and as he placed her in a police vehicle, defendant said, "I didn't want to do any of it." Detective Bendul told her he did not want to speak with her until they arrived at the police station. She agreed, but was very emotional. She was crying and she wanted to talk. The police transported defendant to the police precinct where they interviewed her.

Detective Bendul interviewed defendant in a relatively small office where there was a desk, a number of file cabinets, a few chairs, and a window. When defendant came into the room her handcuffs were removed.

According to Detective Bendul, defendant was not as emotional in the office as she had been in the police car after she had been arrested. Detective Bendul sensed defendant "was a bit distraught, but at the same time . . . relieved from not having to run anymore." Detective Bendul testified: "she was very cooperative throughout the entire process and at the time that she was arrested in the subway, it took a lot to just keep her calm enough so that we could conduct an interview when we got back, because she . . . wanted to talk and tell the story."

Detective Bendul promised defendant nothing in exchange for the interview, nor did he threaten her. When defendant asked for a cigarette she was given a cigarette; when she asked for water she was given water; when she asked for a bathroom break she was given a bathroom break. She was not deprived of food or anything else she requested.

Detective Bendul recorded the interview on a digital recorder, which he turned on before he began speaking to defendant. He advised her of her Miranda[2] rights, using a Bergen County Prosecutor's office Miranda Rights Form, which included a waiver portion that defendant reviewed and signed. After each "right" on the form, defendant wrote "yes" to confirm that she understood that particular right. She also signed the waiver. Detective Bendul had defendant read some of the rights aloud. Defendant also read the waiver portion herself, signed it, and agreed to speak to the detective. During the four-hour interview, defendant did not invoke any of her Miranda rights.

After considering Detective Bendul's testimony and listening to the digital recording of the interview, Judge Harry G. Carroll denied defendant's suppression motion. Judge Carroll determined that defendant knowingly waived her Miranda rights. He explained:

So, in viewing the totality of the circumstances on that evening, the [c]ourt is satisfied that the Miranda [r]ights were scrupulously read and respected; that [defendant] indicated to Detective Detective Bendul that she understood them. There was some question on cross-examination regarding possible drug or alcohol use, but Detective Bendul indicated that, while there had been some responses given by [defendant] about prior drug usage some days earlier, . . . he was of the belief that she was not . . . under the influence of any such substance, [didn't] recall any odor of alcohol, [and] that she was complete[ly] coherent.
And, in viewing the Miranda Rights form, along with those two other consent forms [for buccal and hair samples] which I just read, I find that . . . the rights were waived knowingly and voluntarily after [defendant] was properly advised of those rights.

Judge Carroll next concluded that defendant made her statements voluntarily. He heard nothing on the audio recording to suggest otherwise. As to the time the interview took place, the judge noted that while some people might consider that the interview took place in the middle of the night,

perhaps what may be someone's middle of the day might not be for someone else and, due to the type of work that [defendant] did, perhaps her work takes her out at night rather than during the day and that she would sleep during the day and be out at night.

Explaining there was evidence in the record to support that view, the judge pointed out that defendant "was observed going into a subway at around 12:30 in the morning[.]" The judge found "there [is] really no testimony or evidence before me upon which I can conclude that perhaps [defendant] was up for a prolonged period of time so that her will would have been overborn by either the lateness of the hour or the length of the interrogation." Judge Carroll also determined that the length of the interview was "not so prolonged or extended . . . to conclude that the [d]efendant's will would have been overborn or that the resulting interview was not voluntary."

Next, the judge pointed to occasions during the interview when defendant requested either a bathroom break, water, or a cigarette, and each time was given what she asked for. On one occasion, when she returned from the bathroom, Detective Bendul asked: "All right, so you think we're going to be able to continue with this?" Defendant responded, "[y]eah."

There were times during the interview when defendant cried. On one such occasion, she told the detective she was scared. Detective Bendul responded, "well, you know what, I don't blame you for being scared. This is a pretty serious investigation. You know, . . . it's only natural that people are scared in these situations."

The judge concluded from his review of defendant's entire statement that the circumstances of the crime, rather than any improper police interrogation tactics, caused defendant to be scared. As the judge stated, there was "no evidence of any threats, force, or coercion at any point during the interview which would cause this [c]ourt to conclude that the Law Enforcement efforts rendered [defendant's] resulting statement involuntary in any way."

Lastly, the judge cited defendant's own statement in response to Detective Bendul's question, "have you been treated fairly?" Defendant responded, "[u]h-huh." To clarify, the detective asked, "[i]s that a yes?" Defendant answered, "[y]es."

Judge Carroll concluded the State had established beyond a reasonable doubt that defendant's statement was knowing, voluntary, and intelligent. He denied defendant's suppression motion.

Defendant argues that her statement was involuntary because she was taken into custody around 12:35 a.m. and later questioned for four hours. She cites times throughout her interview when she yawned, and other times throughout her interview when she cried. She also argues that by failing to stop and let her rest or compose herself, and by continuing to question her as if nothing were wrong, the detective gave the impression that she had to continue answering his questions. She also points to the fact that her interview suggests she was in an abusive relationship. She asserts that her "mentality, coupled with the conditions surrounding her statement, made that statement involuntary."

Defendant also contends it is apparent from the tape recording that off-the-record discussions occurred during the interview. She argues that such "off-the-record" discussions undermine Detective Bendul's credibility because he testified that all of her statements were recorded.

Every person has the right against self-incrimination. U.S. Const. Amend. V; N.J.R.E. 503. "Inherent in every Fifth Amendment analysis is the question of whether the statement was voluntary, and, independently, whether the law enforcement officers taking it complied with Miranda." State v. W.B., 205 N.J. 588, 605 (2011). When the State intends to introduce a defendant's statement at trial,

"the State has the affirmative duty to prove -- in New Jersey by proof beyond a reasonable doubt, see State v. Yough, 49 N.J. 587, 599 (1967); N.J.R.E. 104(c) --both that defendant's statement was voluntary, and, if custodial, that the defendant was advised of his rights and knowingly, voluntarily and intelligently waived them."

[Id. at 602, n.3.]

In reviewing a trial court's denial of a defendant's motion to suppress a statement, we defer to the factual findings of the trial court when they are supported by sufficient credible evidence in the record. See State v. Nyhammer, 197 N.J. 383, 409 (2009); see also, W.B., supra, 205 N.J. at 603, n.4 ("As the finding of compliance with Miranda and voluntariness turned on factual and credibility determinations, we need only find sufficient credible evidence in the record to sustain the trial judge's findings and conclusions.") (citing State v. Elders, 192 N.J. 224, 243-44 (2007)).

Judge Carroll carefully considered the totality of the circumstances surrounding defendant's statement, and his findings are supported by ample credible evidence in the record. Detective Bendul assured himself that defendant understood each of her Miranda rights before he began to question her. He read some of the rights to defendant and had her read others. She placed her initials next to each right on the form, thereby demonstrating that she understood them. She read and signed the waiver. There is nothing in the record to suggest anything other than that she was fully informed of her right not to speak to the detective, as well as other rights, but nevertheless agreed to discuss the events that resulted in the homicide.

Judge Carroll also considered each of defendant's arguments and any factor from which an inference might be made that defendant's statement was involuntary. His analysis and rejection of each such inference is well-supported by the record. For example, defendant stated she was scared. But the detective's discussion with her about her fears amply supported Judge Carroll's findings that her fear was attributable to the consequences of her actions, not any intimidation or coercion by the detective. And, as the judge pointed out, there is nothing in the record to suggest that plaintiff was either too tired or too exhausted to comprehend and exercise her right to remain silent. Defendant's argument that her statement was somehow involuntary because she had been in an abusive relationship is not supported by the record.

Defendant's attack on Detective Bendul's credibility is unavailing. Appellate Courts "should give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).

We are also unpersuaded by defendant's argument concerning her sentence. She contends that Judge Carroll erred in balancing the aggravating and mitigating factors at sentencing, and failed to find three relevant mitigating factors. Her arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Judge Carroll followed the sentencing guidelines. His findings of aggravating and mitigating factors are supported by the record, and defendant's aggregate sentence, which is less than that recommended by the State, does not "shock the judicial conscience" in light of the particular facts of the robbery and homicide. State v. Roth, 95 N.J. 334, 364-65 (1984).


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