NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
Submitted March 20, 2013.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-05-1248.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Lauren S. Kirk, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Grall, Simonelli and Accurso.
A jury found defendant Edwin Patillo guilty of use of another's personal identifying information, N.J.S.A. 2C:21-17.2a (count one); tampering with public records or information, N.J.S.A. 2C:28-7a(1) (count two); and falsifying or tampering with records, N.J.S.A. 2C:21-4a (count three). The judge merged defendant's convictions under count one and three, and he imposed a fifteen-year extended term with a seven-and-one-half-year term of parole ineligibility on count one and a concurrent five-year term of imprisonment on count two.
On a prior appeal, a panel of this court remanded for supplementation of the record and reconsideration of defendant's motion to suppress physical evidence seized at the time of his arrest — the panel's concern was inconsistencies between the testimony of the officers involved in the investigation and an affidavit submitted to obtain a warrant authorizing the search of a leather case seized at the time of defendant's arrest. State v. Patillo, No. A-1734-08 (App. Div. July 22, 2010) (slip op. at 23-25). The panel further directed the judge to consider whether any illegality in the search tainted and required suppression of defendant's statements. Id. at 24-25. The panel did not address the other issues defendant raised on appeal, id. at 26, because they could well be mooted by the determination on remand.
On remand, the trial judge conducted a testimonial hearing, addressed the inconsistencies and concluded that the suppression motions were properly denied. Defendant now appeals, raising the issues previously presented and contending that the court misapplied the law on remand. The issues before us are as follows:
I. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT FA[I]LED TO APPLY APPROPRIATE FOURTH AMENDMENT CRITERIA IN ITS FINDINGS AT THE REMANDED HEARING DENYING DEFENDANT'S MOTION TO SUPPRESS.
II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN LIMITING DEFENSE COUNSEL'S ABILITY TO CROSS-EXAMINE LEON HOPEWELL BECAUSE, CONTRARY TO THE PROSECUTOR'S REPRESENTATIONS, HOPEWELL WAS UNDER ARREST, AND THIS RESULTED IN A "HOLD" OVER THE WITNESS WHICH THE DEFENDANT WAS ENTITLED TO EXPLORE.
III.THE DEFENDANT'S UNRECORDED ORAL STATEMENTS MADE TO DETECTIVE TERRELL AT THE EGG HARBOR POLICE STATION ON SEPTEMBER 11, 2005, SHOULD HAVE BEEN SUPPRESSED BECAUSE THE DEFENDANT WAS NEVER ADVISED THAT HE WAS BEING QUESTIONED ABOUT CRIMES THAT HAD ALLEGEDLY OCCURRED ON MARCH 31, 2004, AND BECAUSE THE DEFENDANT WAS IN CUSTODY AND NOT ADVISED OF HIS MIRANDA RIGHTS.
IV. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL.
A. THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED BECAUSE THE STATE ONLY PRODUCED SPECULATIVE EVIDENCE OF GUILT.
B. THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND RESULTED IN A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.
V. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY MISREPRESENTATIONS MADE BY THE PROSECUTOR IN SUMMATION CONCERNING THE DOCUMENTS SEIZED AFTER THE DEFENDANT'S ...