STATE OF NEW JERSEY v. TAJI R. ALEXANDER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0420-04T40420-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TAJI R. ALEXANDER,

Defendant-Appellant.

____________________________

 

Submitted March 28, 2006 - Decided July 21, 2006

Before Judges Collester and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Law Division, Union County, 03-08-0831-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Roger L. Camacho, Designated

Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Jillian J. Reyes,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Taji R. Alexander was indicted and convicted of two counts of robbery, contrary to N.J.S.A. 2C:15-1; unlawful possession of a pellet gun, contrary to N.J.S.A. 2C:39-4(a); and possession of a handgun without having obtained a permit required by N.J.S.A. 2C:58-4, contrary to N.J.S.A. 2C:39-5(b). After merger of the convictions, Judge Scott J. Moynihan imposed an aggregate prison sentence of ten years with eighty-five percent of that term to be served pursuant to the No Early Release Act (NERA). Defendant appeals his conviction and sentence.

At trial, the State called Sandro Mendes (Mendes) who testified that at about 6 p.m. on December 7, 2000, he went to the home of his friend Vadym Melnychuk (Melnychuk) at 1543 Stuyvesant Avenue in Union Township and met with Melnychuk and his girlfriend, Amanda Levy (Levy). He said that defendant pulled up in his car, walked up to them and offered them some samples of marijuana. When they agreed, defendant walked away saying he was going to get the samples. However, when he returned, defendant put a gun in Melynchuk's rib cage and told the others that he did not want to hurt anyone and that they had to give him "what you have." He then put the gun to Mendes' chest and started going through his pockets. Mendes looked down and saw bits of orange paint on the barrel of the gun and realized that it was a BB gun since orange paint was put on the barrel of BB guns to distinguish them from real guns. He grabbed at the gun, and the two men wrestled for the weapon, during which defendant kicked Mendes in the mouth. As they continued to struggle, they bumped against the front door of the building, causing it to jam so that it would not open.

At this point Melynchuk's father came out of his apartment and helped Mendes bring Alexander to the ground. He then called the police using his cell phone. Approximately five minutes later Union Police Officers Jamie Soltys and Joe Foster arrived at 1543 Stuyvesant Avenue. They kicked in the jammed front door and saw Mendes, Melynchuk and Melynchuk's father standing in the stairwell while defendant was sitting in the hallway by the door. When told defendant had a gun, the officers patted him down and handcuffed him. Officer Foster found the gun down some steps. He then gave defendant his Miranda warnings and put defendant in the backseat of the patrol car while they interviewed the witnesses.

About a half hour later the officers returned to the patrol car. Foster asked defendant whether he wanted to tell him what happened. The defendant said he knew Mendes and Melynchuk sold Ecstasy, which he referred to as "capital E," and he went to the apartment to buy some. He said Melynchuk did not have any Ecstasy and called Mendes to bring it. When Mendes arrived he showed defendant forty pills wrapped in cellophane. Defendant said that he pulled out a gun to rob them of the Ecstasy. He added that it was his intent to rob them of the drugs from the outset.

After the State rested, the defense moved for a judgment of acquittal, which was denied by Judge Moynihan. Defendant then testified on his own behalf. He said he went to the Stuyvesant Avenue apartment because of a prior arrangement with Melynchuk to discuss a price for the purchase of Ecstasy. He met with Melynchuk at about 4:30 p.m. and asked if he could get twenty Ecstasy pills for a "good price." Melynchuk said he had no drugs on him but for defendant to call him in about an hour. When defendant called, Melynchuk told him to return because his friend would be there with the Ecstasy. Defendant said that he arrived about 6 p.m. and parked his car in the back. He said that when he entered the apartment house hallway, Mendes showed him twenty Ecstasy pills and said that he would sell them for $400. Defendant testified that $20 per Ecstasy pill was the normal street price and that he was unable to negotiate with Mendes or Melynchuk for a lesser price. He then told them he had to make a phone call. When he returned a short time later, he said that he would not make the purchase. He claimed Mendes became hostile and blocked him from leaving. He said he began to wrestle with Mendes, and they slammed into the front door, jamming it shut. As the struggle continued, Mendes slid down the steps, and defendant tried unsuccessfully to open the front door to leave. He said at this point he pulled out the BB gun he had on his person to protect himself during the negotiations with the drug dealers. He said he pointed it at Melynchuk and Mendes, demanding that they let him leave. He said that Mendes realized that gun was only a BB gun and again began wrestling with him, and Melynchuk jumped on his back, knocking the gun out of his hand and causing it to slide down the cellar stairs. He said that the struggle continued until Melynchuk's father arrived from upstairs and called the police.

Defendant said that when the police officers arrived, he told them that he was there to price and purchase drugs and that there had been a misunderstanding. He denied saying that he went there with the intention of robbing the two men of the drugs.

On appeal of his conviction, defendant makes the following arguments:

POINT I - THE MOTION COURT REVERSIBLY ERRED IN REJECTING ALEXANDER'S MOTION TO SUPPRESS HIS SECOND STATEMENT GIVEN IN THE BACK SEAT OF THE PATROL CAR AS VIOLATIVE OF HIS FEDERAL CONSTITUTIONAL AND COMMON LAW RIGHTS AGAINST SELF-INCRIMINATION. U.S. CONST. AMENDS V & XIV.

POINT II - THE TRIAL COURT REVERSIBLY ERRED IN DENYING ALEXANDER'S MOTION FOR ACQUITTAL AT THE END OF THE STATE'S CASE. U.S. CONST. AMEND 6, 14; N.J. CONST. (1947) ART. I, PARA. 10.

POINT III - THE TRIAL COURT SUA SPONTE SHOULD HAVE GRANTED ALEXANDER A NEW TRIAL PURSUANT TO R. 3:20-1 REGARDING HIS CONVICTIONS OF COUNTS 1 AND 2 BECAUSE THE GUILTY VERDICTS WERE SUPPORTED ONLY BY LEGALLY INSUFFICIENT EVIDENCE, NAMELY ALEXANDER'S CONTROVERTED CONFESSION WITHOUT FURTHER CORROBORATION OF TRUSTWORTHINESS. U.S. CONST. AMENDS 6 AND 14; N.J. CONST. (1947) ART. I, PARA. 10. (Not Raised Below.)

POINT IV - DEFENDANT'S SENTENCES SHOULD BE REVERSED AS ILLEGAL, EXCESSIVE AND UNCONSTITUTIONAL. U.S. CONST. AMEND VI; N.J. CONST. (1947) ART. I, PARA. 10.

Prior to trial defendant moved to suppress the incriminatory statements he made to the police. At the Miranda hearing the State called Officer Soltys who testified that after he and Officer Foster responded to the scene, they were told that defendant had a gun which he had thrown down the stairwell. Soltys said that Foster searched the stairwell and found the gun. At that point, Soltys testified to the following:

Q. When your partner recovered the weapon did he then come back to where you and the defendant were?

A. He did.

Q. And what was said at that time?

A. Police Officer Foster asked Taji if this was his weapon. At which time he said yes.

. . .

Q. After the defendant admitted that it was his handgun, what did you do?

A. Police Officer Foster read him his Miranda rights.

Soltys testified that defendant was taken from the scene and placed in the back of the patrol car while the officers interviewed the others present. They then returned to the patrol car, and Officer Foster asked defendant if he wanted to tell them what happened. At that point, defendant made his admission that he went to Stuyvesant Avenue with the intent to rob Mendes and Melynchuk because he knew they had Ecstasy for sale.

In his decision Judge Moynihan agreed that the testimony that defendant admitted the gun was his was prior to his receiving Miranda warnings. He therefore suppressed the testimony. However, Judge Moynihan declined to suppress defendant's subsequent incriminating statements to police while in the police car, rejecting defendant's argument that the police had to re-administer Miranda prior to further questioning of defendant. The judge stated:

The environment at the time the rights were administered were conducive to a full understanding of what is by now simple Miranda rights, and the defendant's acknowledgement that he understood those rights clearly indicates that that prong has been met.

The thirty-minute time lag between the administration of the rights and the questioning does not give the court pause at all, because nothing was done to the defendant in that thirty minutes. There is no evidence whatsoever defendant was coerced or deprived or the victim of any deception or trickery, or any threats or promises. The interrogation was not lengthy at all. And the number of interrogators, that really being one, with Soltys with just being present, was not overbearing.

The age, intelligence, and education as well as criminal experience of the defendant are not really in evidence and the court cannot comment on that. But the court is fully satisfied that defendant made that statement voluntarily. He never invoked his Miranda rights. Never said he didn't want to speak to anybody.

Judge Moynihan specifically found that the testimony of Soltys was credible, of course, we are obliged to give deference to that credibility finding. Similarly, the fact that there was no written waiver signed by defendant is of no moment since Soltys testified that defendant was orally advised of his Miranda rights and acknowledged to the officers that he understood his rights.

The thrust of defendant's argument is that since the first incriminating statement by defendant preceded the administration of Miranda warnings, his subsequent statement after being advised of his Miranda rights was tainted and inadmissible. We disagree. Defendant mistakenly relies upon State v. Hartley, 103 N.J. 252 (1986), in which the Supreme Court held that once a suspect requests counsel, there can be no interrogation in the absence of counsel unless initiated by the suspect and that any subsequent interrogation without re-administration of the Miranda warnings fails to "scrupulously honor" the suspect's constitutional right to remain silent. Hartley, supra, 103 N.J. at 277. In Hartley the defendant exercised his Miranda rights after being advised of the warnings by an FBI agent. Within a short period of time another agent asked the defendant to reconsider and told him that it was the time to make a statement if he wished to do so. Without his Miranda warnings being re-administered, the defendant confessed. The following morning the defendant's Miranda warnings were re-administered by a New Jersey assistant prosecutor, and defendant made incriminatory statements. The Supreme Court suppressed the testimony of the second interrogation, which followed the re-administering of Miranda warnings because the interrogation was entwined with the constitutional violations by the FBI agents. Id. at 284.

This case is factually distinguishable. Defendant did not exercise his right of silence prior to the taking of any statement by the police. Clearly, Judge Moynihan correctly held that the first statement in which the defendant admitted possession of the BB gun violated Miranda since no warnings had been given to the defendant at that time. However, the statements that he arrived at the scene with the intention to commit the robbery was made after he received and acknowledged receipt of Miranda warnings. Hartley does not hold that the failure to advise the defendant of his warnings resulting in suppression of an incriminating statement so taints a subsequent statement after receipt of Miranda that it must be suppressed as the "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). As stated by the Court in Hartley,

We perceive a qualitative difference between a failure to administer Miranda warnings in the first place, and a failure to honor, after they had been asserted, the constitutional rights that those warnings are designed to secure.

In the former instance, the police conduct, standing alone and unaccompanied by any oppressive act of coercion or intimidation, does not inevitably demonstrate an undermining of the in-custody suspect's ability to exercise his free will. Put differently, the statement produced by an unwarned in-custody interrogation may be voluntary despite the absence of Miranda warnings. See Michigan v. Tucker, supra, 417 U.S. at 445, 94 S. Ct. at 2364, 41 L. Ed. 2d at 193. Although the unwarned confession must be suppressed under the force of Miranda's irrebuttable presumption of compulsion, the violation of Miranda's dictates is not in that instance of constitutional dimension.

[Hartley, supra, 103 N.J. at 272.]

In the course of the Hartley majority opinion, Justice Clifford distinguished Oregon v. Elstead, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985), a case factually similar to the instant case. There the police came to the defendant's home with intention of arresting him for a robbery. Without giving Miranda warnings, one of the officers said that he thought that Elstead was involved in the robbery. Elstead responded, "Yes, I was there." After being transported to police headquarters Elstead was given his Miranda warnings and then confessed to the crime. The United States Supreme Court declined to find that Elstead's post-Miranda confession was constitutionally tainted by the earlier failure to give Miranda warnings. Rather, the court distinguished between the violation of the procedural requirements of Miranda designed for prophylactic effect and a violation of constitutional dimension. Elstead, supra, 470 U.S. at 307, 105 S. Ct. at 1292, 84 L. Ed. 2d at 231.

We underscored the difference between Hartley and Oregon in State v. Brown, 282 N.J. Super. 538, 551-55 (App. Div.), certif. denied, 143 N.J. 322 (1995), in which the defendant gave an oral statement prior to Miranda warnings and a written statement after the warnings were given. As in Brown and Elstead, we held the fact that defendant was not advised of his Miranda rights before his oral statement, did not constitute a violation of a constitutional right so as to taint a later statement made after defendant received his proper warnings. Therefore, we find that the denial of the application to suppress defendant's post-Miranda statement was proper.

Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that defendant's sentence to an aggregate term of ten years was not excessive and does not shock our judicial conscience. State v. Roach, 146 N.J. 208, 230-31 (1996), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); State v. Roth, 95 N.J. 334, 365-67 (1984). We find no basis to upset Judge Moynihan's denial of defendant's application to impose a sentence for the first-degree convictions to a term appropriate for a second-degree conviction since he was not "clearly convinced that the mitigating factors outweighed the aggravating factors and [] the interest of justice demands." N.J.S.A. 2C:44-1(f)(2). Finally, we reject as without merit defendant's contention that N.J.S.A. 2C:44-1(f)(2) is unconstitutional or was unconstitutionally applied in violation of his constitutional right to have the issue of his entitlement to a sentence of a degree lower than the crime for which he had been convicted by the jury.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-0420-04T4

July 21, 2006