NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-05-0801 and 09-05-0804.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).
Before Judges Parrillo and Messano.
Following the denial of his motion to suppress his statement to police, defendant Christian Davis pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Defendant admitted that on March 4, 2009, he possessed a .380 caliber semi-automatic handgun in Carteret and that he was previously convicted of a disqualifying crime. In accordance with the terms of his plea agreement,  defendant was sentenced to a five-year term with a five-year period of parole ineligibility. Defendant appeals, and we affirm.
According to the State's proofs at the suppression hearing, shortly after midnight on March 4, 2009, Detective Sergeant Raymond Novak of the Carteret Police Department responded to a call about a shooting at a local bar/restaurant. There, he collected bloody napkins and saw blood splatter in the men's room. Officers present at the time advised Sergeant Novak that they had spoken with defendant, who seemed hesitant to give them any details of the incident other than he was a shooting victim. Sergeant Novak then went to the hospital where defendant had been transported for treatment to a gunshot wound on his left leg.
Sergeant Novak inquired of defendant what had happened, to which he replied that several people had assaulted and shot him at a local intersection. During the conversation, Novak noticed that defendant's body language and responses seemed somewhat inconsistent, prompting the officer to request that, upon his release from the hospital, defendant come to police headquarters to give a statement about the attack. Defendant agreed to do so and upon his discharge,  was driven to the police station by his mother.
Meanwhile, Sergeant Novak had returned to headquarters where, waiting for defendant, he inspected the pants defendant was wearing at the time of the incident and found no entrance hole. When defendant arrived at headquarters at 4:50 a.m. with his mother, he was neither handcuffed nor restrained in any manner. When asked what happened, defendant gave a short videotaped statement at the outset of which defendant asked Sergeant Novak whether the wound looked self-inflicted, to which the officer replied that it did. Defendant then volunteered that he was at the bar, intoxicated, and while in the men's restroom, the safety on his gun went off and the gun discharged. This videotaped discussion lasted less than five minutes.
As soon as defendant admitted shooting himself in the leg, Sergeant Novak issued him Miranda warnings, considering him no longer a victim but a possible suspect. Defendant asked for counsel and all questions ceased. Defendant then asked Sergeant Novak what would happen next, to which the officer responded that he could have no further discussions with defendant unless he revoked his right to an attorney. When defendant uttered that Sergeant Novak could not do anything for him, the officer replied that "all I'd be concerned about is getting the gun off the street, that's all." At this point, Novak got up, left defendant alone in the room, and the recording stopped.
According to Novak, after the recording was turned off, and they entered the processing room, defendant again asked the officer what would happen next, to which Sergeant Novak responded that he would continue the investigation and reiterated his concern over "getting [the gun] off the street" lest "some kid walking to school in the morning find[s] [it] and something bad happen[s]." Perhaps sharing the same concern because he knew the gun was near an elementary school, defendant agreed to show Sergeant Novak where he had hidden the gun. Before doing so, however, Sergeant Novak asked defendant if he wanted to revoke his Miranda right to have counsel present, but defendant declined to go back on the record. Instead, he led Sergeant Novak to the loaded gun in a garbage can right next to an elementary school. Defendant was subsequently charged with, among other things, possession of the stolen handgun.
Defendant offered a different account. According to defendant, Sergeant Novak called him on his way home from the hospital and demanded that he come to the police station immediately, threatening to come to his house if defendant did not comply. While defendant admitted leading Sergeant Novak to the gun, he denied that he offered to continue speaking with the officer once he invoked his right to counsel. Defendant explained that on the night of the ...