STATE OF NEW JERSEY v. MANUEL PEELER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0661-04T40661-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MANUEL PEELER,

Defendant-Appellant.

_____________________________________________________________

 

Submitted May 22, 2006 - Decided July 21, 2006

Before Judges Holston, Jr. and Gilroy.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-10-2123.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On October 16, 2002, the Atlantic County Grand Jury returned Indictment No. 02-10-2123, charging defendant, Manuel Peeler, with third-degree possession of a controlled dangerous substance (CDS), cocaine, contrary to N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of CDS, cocaine, with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); third-degree distribution of CDS, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Three); fourth-degree unlawful possession of a weapon, a knife, contrary to N.J.S.A. 2C:39-5d (Count Four); and second-degree possession of a weapon, a knife, while in the course of attempting or conspiring to commit distribution of CDS, cocaine, contrary to N.J.S.A. 2C:39-4.1 (Count Five).

On May 25, 2004, Judge Michael R. Connor heard and denied defendant's motions to suppress (1) evidence, a knife and currency seized from defendant; and (2) defendant's statement to the police. On that same day, defendant's trial commenced before a jury and continued until the next day. On May 26, 2004, the jury rendered a verdict finding defendant guilty of all counts.

On June 25, 2004, Judge Connor sentenced defendant. The judge merged Counts One and Two into Count Three, and imposed a term of four years imprisonment. The judge merged Count Four into Count Five, and imposed a term of seven years imprisonment to be served consecutively to the sentence imposed on Count Three, as required by N.J.S.A. 2C:39-4.1d. Thus, the aggregate prison sentence imposed was eleven years. Defendant appeals his conviction and sentence. We affirm.

On the morning of September 2, 2002, Sergeant Sam Dickson of the Atlantic City Police Department was conducting surveillance of the area around the Atlantis Apartments Housing Complex (complex) on Maryland Avenue known as "Back Maryland." "Back Maryland" is a high narcotics crime area, where numerous arrests for drug crimes, assaults and other violent crimes have taken place.

Dickson observed a man, later identified as defendant, engaged in what appeared to be three separate drug transactions in a side parking lot off the 700 block of North Maryland Avenue. The first involved a woman who approached defendant and engaged in a brief conversation with him. Defendant reached into his pants back pocket, removed a clear plastic sandwich bag, removed an unidentified object from the sandwich bag, and handed the object to the woman. She then handed defendant paper currency, after which she walked into the complex. Fifteen minutes later, a man approached defendant and engaged in the same kind of transaction. Almost immediately thereafter, a third individual, later identified as co-defendant Gregory Wallace, arrived and engaged in the same kind of a transaction. Defendant took out a plastic bag, removed something from it, gave it to Wallace, who in exchange handed paper currency to defendant. Wallace then inspected the object, removed white tissue paper from his pocket, folded the object in the paper, and walked away carrying the object wrapped in tissue.

Dickson radioed to backup Officers Torres Mayfield, Scott Wythe and Donnell Holland, relating what he had observed, provided a description of Wallace, and told them the direction in which Wallace, who was holding the CDS in his right hand in the tissue, was walking. About a moment later, Wythe saw Wallace walking out of the housing complex, clutching something in his hand. After Wythe asked Wallace to stop, Wallace stopped and dropped what he had in his hand on the ground. Wythe recovered the object, which was a "rock" wrapped in white tissue. The contents subsequently tested positive for .08 grams of cocaine.

In the meantime, Dickson continued his surveillance of defendant. He observed defendant walk out of view towards a cluster of apartments and then reappear with a man later identified as Celine Tolbert. When defendant reappeared, he was wearing a gray hooded sweatshirt instead of the black leather jacket that he had worn during the three CDS transactions.

Because Tolbert and defendant appeared to be leaving the complex, Dickson radioed Mayfield and Holland. He gave them a description of the two men and the direction in which they were walking. He told Mayfield and Holland to stop the two men so that he could make a positive identification of defendant.

Holland approached defendant and asked him general questions, such as his name, where he was coming from, and where he was going. Although defendant gave his name, his other answers were vague and inconsistent. Holland asked for identification and defendant had none. He asked defendant if he had any weapons and he replied that he did not. Holland then conducted a "pat-frisk" of defendant and found an eight-inch folding knife in his waistband. Holland next patted defendant's left front pocket and felt a huge bulge. Unsure of what it was from touch, Holland reached in defendant's pocket and pulled out two large bundles of cash, piled randomly on top of each other. Holland then asked defendant what he was doing with a large amount of cash. Defendant replied that it wasn't real money. When asked again where he got the money, he answered that his mother had obtained it from a lawsuit. No drugs were found on defendant.

Holland testified that when he first approached defendant, he did not advise him of his Miranda rights because he was not under arrest at that point. He testified that he patted defendant down for his own safety. Holland stated, "As I said, [defendant] had no identification, it's a very high crime area, individuals in that area are known to carry weapons. . . . I didn't know who I was dealing with or his background as far as carrying weapons or whatsoever, I just wanted to be safe." A few minutes later, Dickson arrived on the scene and positively identified defendant as the person he had observed engaging in CDS transactions. Defendant was placed under arrest and transported to Atlantic City's Public Safety Building for processing. The money recovered totaled $1,078 in mixed denominations of hundreds, fifties, twenties, tens, fives and ones, not arranged in any type of order but rather in two "wads," which according to Dickson was consistent with drug sales.

Detective Donna Green, an expert in the area of street level narcotics distribution, gave expert testimony. Green testified that "ready rock" was usually sold in Atlantic City in the form of a "$10 rock" or a "$20 rock." Green opined that the money seized was consistent with drug dealing. She also opined that drug dealers often carry knives with them to protect themselves so "they don't get ripped off" of both drugs and money.

Defendant testified that he had the money in his pocket because his family lent him money to go school shopping for the upcoming semester. Defendant stated that he left his house to retrieve food at a restaurant for his infirmed and disabled mother and denied selling any drugs on that date. Defendant testified that he was wearing the same clothes all day, which consisted of black boots, blue jeans and a black and grey hooded sweatshirt. When the defendant was stopped by Holland, he admitted to commenting that the money retrieved from his pocket was "not real money." Defendant testified:

No, actually, at the time I wasn't arrested, so I as just - they was bothering me for no reason, but they bother me all the time. So usually I just - you know what I mean - just say whatever I want because I know I wasn't arrested. He said I wasn't under arrest, so I could say anything I want, and I, that's what I usually say because he make more money than I do because he a cop. So that wasn't no type of money because he's a cop, he make more money than me.

Defendant's mother, Wanda Peeler, and sister, Tenifa Peeler, testified that they gave the defendant money for school clothes prior to the date in question. Wanda recalled giving defendant approximately $400 on September 1, 2002, when she cashed her disability check. Tenifa, who is employed full-time as a medical assistant earning $10 per hour, testified that she gave her brother approximately $400 in late August 2002 for clothes and to help with his young daughter. Defendant's stepfather, Johnny Thompson, also testified that he gave defendant $400 in late August for school supplies.

Defendant presents the following arguments for our consideration:

POINT I

THE EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED AS IT WAS SEIZED IN VIOLATION OF DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS.

A. THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS WHERE THE PAT-DOWN SEARCH OF DEFENDANT WAS ILLEGAL BECAUSE OFFICER HOLLAND HAD NO REASONABLE BASIS TO BELIEVE DEFENDANT WAS ARMED AND DANGEROUS.

B. THE COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION TO SUPPRESS BASED ON OFFICER HOLLAND'S ILLEGAL SEIZURE OF THE CURRENCY LOCATED ON DEFENDANT.

POINT II

THE TRIAL JUDGE ABUSED HIS DISCRETION BY DENYING DEFENSE COUNSEL'S OBJECTION TO STATEMENTS MADE BY THE PROSECUTOR DURING OPENING ARGUMENTS WHICH RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM.

POINT III

THE TRIAL COURT ERRED IN PERMITTING DETECTIVE GREEN TO RENDER EXPERT TESTIMONY ON THE ISSUE OF INTENT TO DISTRIBUTE NARCOTICS (NOT RAISED BELOW).

POINT IV

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENT OF INTENT TO DISTRIBUTE DRUGS; CONSEQUENTLY THE CONVICTIONS ON COUNTS ONE AND TWO MUST BE VACATED. (NOT RAISED BELOW).

POINT V

THE DEFENDANT'S STATEMENTS, MADE DURING INTERROGATION, SHOULD HAVE BEEN SUPPRESSED WHERE NO MIRANDA WARNINGS WERE PROVIDED AND WHERE HE WAS CLEARLY IN CUSTODY.

POINT VI

THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

I

Defendant claims that the judge erred in denying his motion to suppress evidence, contending Holland's pat-down search was illegal because Holland had no reasonable basis to believe that he was armed and dangerous. A police officer may effectuate an investigatory stop if, under the totality of the circumstances, the officer has a reasonable and articulable suspicion that a person has engaged in criminal activity, Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968), particularly when, as in this case, it is suspected that the person was involved in a completed felony, United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604, 612 (1985). The officer may also perform a limited exploratory search or pat-down frisk of the suspect, for protective purposes, if the officer has reason to believe that the person is "armed and dangerous." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909; accord State v. Davis, 104 N.J. 490, 500-01 (1986).

Defendant does not dispute that the police had a reasonable and articulable suspicion to justify an investigatory stop. He complains only that there was not a reasonable suspicion that he might be armed and dangerous, justifying the pat-down. Our Supreme Court has directed that the reasonableness of a Terry frisk must be evaluated in the context of the ever-increasing life-and-death situations confronting law enforcement officers. State v. Valentine, 134 N.J. 536, 545 (1994). The Court explained:

Oftentimes . . . a law-enforcement officer is confronted with far less clear circumstances. Even in those more murky and difficult situations, however, law-enforcement officers must make instantaneous decisions about whether a frisk for weapons is justifiable. The task is an unenviable one often fraught with life-and-death consequences.

[Ibid.]

The Court recognized that "'courts should not set the test of sufficient suspicion that the individual is armed and presently dangerous too high when protection of the investigating officer is at stake.'" Ibid. (quoting United States v. Riggs, 474 F.2d 699, 705 (2d Cir.), cert. denied, 414 U.S. 820, 94 S. Ct. 115, 38 L. Ed. 2d 53 (1973)). Citing alarming statistics, the Court observed that police officers, "[a]s the front line against violence, . . . are particularly vulnerable to violence often becoming its victims." Ibid.

Therefore, whether a Terry frisk is justified depends on the totality of the circumstances of the case. Id. at 546. Courts evaluate whether all the facts and circumstances provided the police officer "with a reasonable belief that a suspect was armed and dangerous." Ibid. Significantly, the police officer "need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909; accord State v. Thomas, 110 N.J. 673, 679 (1988).

We are satisfied that the facts here provided Officer Holland with a reasonable suspicion that defendant could be armed and dangerous. At the suppression hearing, Holland testified that he decided to conduct a pat-frisk of defendant for weapons for the officer's safety because defendant had no identification, because this was a "heavy drug, high-crime" area where shootings occurred on a regular basis and there were "a lot of assaults," and because defendant was suspected of having just sold illegal drugs in three narcotics transactions. Our Supreme Court has held that "[a]lthough a stop in a high-crime area does not by itself justify a Terry frisk," it "can reasonably elevate a police officer's suspicion that a suspect is armed." Valentine, supra, 134 N.J. at 547. The Court has additionally recognized that an officer might be justified in believing that a "substantial dealer in narcotics" in a "high-crime area" could be armed and dangerous. Thomas, supra, 110 N.J. at 684 (internal quotations omitted).

With respect to credibility, the judge found that "the facts occurred essentially as testified-to by the officers who just testified." The judge observed that the circumstances here involved "a highly-experienced officer" in an area "notorious for drug dealing, for firearms, for shootings, for assaultive types of behavior." Consequently, there were police officers "out there." This area was "a good spot to start" for the police officers to determine what was going on, and an area where the officers would have "legitimate concerns for safety and risk to themselves or to others who may be in the area."

The court further found:

So what happens? We have a highly-experienced officer watching what - to any reasonable observer would be a series of three drug transactions. Second, and with regard to the third of the three would be buyers, that person is tracked, may have been out of sight for a very brief period of time, but is stopped and then drops what turns out to be drugs. So we have a search incident to a lawful arrest with respect to buyer, albeit, you could - it was certainly grounds to believe that a purchase had just occurred and that that person was in possession of the drugs just purchased. And likewise, down the road there was a search incident to a lawful arrest, there was grounds for lawful arrest with respect to what occurred with regard to [defendant]. So the evidence as found was not seized in violation of any rights which the defendant had.

Furthermore, defendant's vague and inconsistent answers to Holland's questions and refusal or inability to produce any identification would have heightened the officer's reasonable fear for his own safety. A suspect's weak explanation of his or her actions, including with respect to where he was going and where he was coming from, may give rise to a reasonable suspicion that the person is armed. See Valentine, supra, 134 N.J. at 546.

Defendant further contends that Holland exceeded the boundaries of a Terry search for weapons when he looked inside defendant's pockets to determine what had caused the "huge bulge." Defendant argues that there was no testimony that Holland thought the soft object could be a weapon and, therefore, any protective search must have been limited in scope "to an intrusion reasonably designed to discover guns, knives, . . . or other hidden instruments for the assault of the police officer." Terry, supra, 392 U.S. at 29, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911.

We are satisfied that given the specific facts of this frisk, looking inside the pocket was a minimum precaution to dispel the reasonable possibility that the pocket contained a weapon. See United States v. Rogers, 129 F.3d 76, 79-80 (2d Cir. 1997) (holding officer did not overstep Terry boundaries by opening rolled-up paper bag taken from suspect's pocket because officer was not yet able to exclude possibility it contained a weapon). Holland's actions in checking to see what was causing the "huge bulge" were particularly reasonable here, because Holland had just found an eight-inch folding knife in defendant's waistband.

Additionally, only moments after the cash was discovered, Dickson arrived on the scene. Dickson positively identified defendant and defendant was placed under arrest. Once defendant was arrested, the police were permitted, incident to his arrest, to conduct a contemporaneous search of defendant's person. See State v. Moore, 181 N.J. 40, 45-47 (2004) (officers' observations in high-crime area supported probable cause to arrest defendant, search him, and seize suspected drugs); State v. Pierce, 136 N.J. 184, 213-14 (1994) (acknowledging "the right of a police officer, following a valid custodial arrest for a . . . criminal offense, to conduct a search of the person of the arrestee solely on the basis of the lawful arrest"). Because there was a valid basis to conduct a search incident to arrest, the cash found in defendant's pocket inevitably would have been discovered, wholly apart from its actual acquisition. See State v. Sugar, 100 N.J. 214, 240 (1985) (Sugar II).

II

Defendant contends the trial court improperly denied defense counsel's objection that the State's opening be stricken, where it was clear that the statement was improper. Defendant asserts that the prosecutor's opening comments "raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973). Defendant claims that the opening directly addressed juror fear by connecting the defendant's alleged crime to a sophisticated drug cartel from South America. The prosecutor stated,

Now all or some of you may be aware of the fact that most cocaine in the United States comes from South America. It comes from Peru, Libya, Columbia, and at that end of the cocaine trade the cocaine is controlled by drug cartels - you might have heard of them - they're huge, powerful outfits with billions of dollars.

Nevertheless, the prosecutor thereafter focused his opening remarks to the facts of this case, when he continued,

This case is not about that end of the drug trade. This case is about the extreme other end, the end when these small parcels of things such as rock cocaine are distributed in the streets by street-level dealers to end users. This case is about the sale of this piece of rock cocaine to an end user on the streets of Atlantic City on September 2nd of 2002 by that man . . . .

. . . .

The denominations and the way that money was carried and the amount of that money are important evidence in this case because that was drug money. That was proceeds or profits from the sale at the street level of cocaine, this cocaine and cocaine like it that originated down in South America, made its way up to Atlantic City into the hands of this man, [defendant], who sold it for profit on the streets of Atlantic City, and that's what this case is about.

At the conclusion of the prosecutor's opening statement, defense counsel objected and the following colloquy occurred:

DEFENSE COUNSEL: Judge, the only objection to the opening was the South America connections. I don't think that should have been brought in, and I think it's prejudicial, and I leave it for you to decide to -

THE COURT: Well -

DEFENSE COUNSEL: You can give a cautionary word, I don't know.

THE PROSECUTOR: I said that's not this case.

DEFENSE COUNSEL: Well, I know. I know.

THE PROSECUTOR: I think - I don't think it's inappropriate.

DEFENSE COUNSEL: Why is it appropriate to hear all that stuff:

THE PROSECUTOR: Well -

DEFENSE COUNSEL: I'm not going to -

THE COURT: Well, I think the prosecutor's opening is as to the circumstances - (unclear away from microphone) - isn't - (unclear - too low-voiced)

DEFENSE COUNSEL: Okay.

THE COURT: -of what he does contend - (unclear - away from microphone)

DEFENSE COUNSEL: Okay.

Prosecutors "are afforded considerable leeway in making opening statements . . . ." State v. Williams, 113 N.J. 393, 447 (1988). A prosecutor's opening remarks generally do not provide grounds for reversal absent bad faith. State v. McAllister, 41 N.J. 342, 351 (1964) (citing State v. Hipplewith, 33 N.J. 300, 309 (1960)). The prosecutor's error "must be clear and unmistakable[,]" substantially prejudicing defendant's right to have the jury fairly evaluate the proofs. State v. Blanks, 190 N.J. Super. 269, 279 (App. Div. 1983).

Defendant asserts that the prosecutor's comments could have led the jury to a result it otherwise might not have reached and that allowing the statements without a limiting instruction was a miscarriage of justice, depriving defendant of a fair trial and warranting a reversal of his conviction.

While we agree that the prosecutor's comment was clearly improper and called for a curative instruction, State v. Frost, 158 N.J. 76, 82-84 (1999), we are convinced, based on the substantial evidence that clearly supported the jury's guilty verdict and the fact that no similar remarks were thereafter made either during the trial-in-chief or in the prosecutor's closing argument, that the error was not clearly capable of producing an unjust result, R. 2:10-2. The court's failure to sustain the objection and give a curative instruction was, therefore, harmless error. See State v. Johnson, 125 N.J. Super. 438, 440 (App. Div. 1973) (although prosecutor's comment was "better left unsaid," it did not constitute plain error).

III

Defendant contends that the trial court erred in permitting Detective Green to testify as a narcotics expert. Defendant claims that Green's testimony added an element to the State's proofs that was not otherwise there and that the judge improperly permitted Green to opine on facts where no additional interpretation was needed. Defendant asserts that it is clear that critical portions of Green's testimony had nothing to do with "a subject matter that is beyond the ken of the average juror." State v. Kelly, 97 N.J. 178, 208 (1984).

In State v. Nesbitt, 185 N.J. 504 (2006), the Supreme Court reaffirmed its prior decisions in State v. Odom, 116 N.J. 65 (1989), and State v. Summers, 176 N.J. 306 (2003), that an expert witness could testify about the methods used in street-level drug sales. The Court reiterated that expert testimony on drug possession and distribution techniques is admissible "when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson." Nesbitt, supra, 185 N.J. at 507. Although expert testimony is not permissible "to state that which is obvious," it is admissible when "the circumstances underlying defendant's drug charges may not have been obvious to the laypersons of the jury." Ibid. The Court concluded that "[e]xpert testimony, including opinions that embrace ultimate issues, is permitted when the testimony has value in assisting the jury's understanding of facts and their significance, and when the trial court finds that that testimony is not unduly prejudicial." Id. at 515.

We are satisfied that Green's testimony was about a subject matter that may be beyond the ken of the average juror. Green testified that rock cocaine weighing .08 grams was a "$10 bag," that in Atlantic City "ready rock" usually was sold in the form of a "$10 rock" or a "$20 rock," and that the number and denomination of bills seized from the hypothetical defendant was consistent with drug dealing. Ordinary members of the public presumably are not versed on such matters.

Furthermore, the trial court instructed the jury on the proper weight to be given to an expert's opinion, that it could accept all, part, or none of the expert's testimony, and that it alone had to decide ultimate questions of guilt. Such an instruction has been found to reduce greatly any chance of prejudice from an expert's opinion. See Nesbitt, supra, 185 N.J. at 513-14, 519; Summers, supra, 176 N.J. at 317. It is presumed that the jury followed the trial court's admonition. State v. Manley, 54 N.J. 259, 271 (1969).

IV

Defendant asserts for the first time on appeal that the evidence produced at trial was clearly insufficient to find a guilty verdict on the possession and distribution of CDS. The issue presented is whether the State met its burden in establishing, beyond a reasonable doubt, the CDS charges brought against defendant. Like all issues pertaining to a defendant's claim of insufficient evidence to support a jury's guilty verdict, the standard of appellate review for determining the sufficiency of evidence of possession of illegal drugs is "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). Viewing the State's evidence in this case in its entirety and giving the State the benefit of all reasonable inferences, we are satisfied that a reasonable jury could find defendant guilty beyond a reasonable doubt of possession of CDS and of possession of CDS with intent to distribute.

Dickson, a very experienced narcotics officer, while conducting surveillance in this high-drug area, observed defendant engage in three separate transactions with three individuals over the course of less than a half hour. The transactions were a mirror image of one another. One of the buyers, co-defendant, Gregory Wallace, was apprehended less than a minute later, still holding the object that he had purchased from defendant. When asked by police to stop, Wallace dropped the object, which tested positive for rock cocaine. Dickson positively identified defendant as the person he observed engage in these transactions. When defendant was stopped only minutes after the third transaction, he had an eight-inch folding knife and two stacks of cash. The evidence of defendant's guilt was clearly sufficient to support the jury's verdict.

V

Defendant contends the trial judge erred in failing to suppress the statements made by defendant, arguing that his statements were made while he was in custody and where no Miranda warnings were provided. The crucial question is whether defendant was in custody at the time he was questioned by Holland and responded to Holland's inquiry of where the money in his pocket had come from. The statements offered by defendant, "That's not real money" and that "he got it from a lawsuit that his mother won," were made in response to questioning initiated by Holland without offering Miranda warnings.

While it is true that Miranda warnings are required "after the person [being questioned] is taken into 'custody' or his freedom has otherwise been significantly restrained[,]" Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 1293, 84 L. Ed. 2d 222, 232 (1985) (quoting Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 276), the police are not required to administer Miranda warnings before engaging in "'[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process,'" State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005) (alteration in original) (quoting Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725). Likewise, with respect to a Terry investigatory stop, the police are "not required to give Miranda warnings before asking questions reasonably related to dispelling or confirming suspicions that justify the detention." Id. at 431.

Miranda warnings are required only if the individual interrogated is "in custody." Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977). A person is "in custody" only when there has been a formal arrest or restraint on freedom of movement to the degree associated with a formal arrest. Ibid.

This court acknowledged that "some restraint on freedom of action is involved in most on-the-scene questioning," Smith, supra, 374 N.J. Super. at 436, and that Terry stops "necessarily involve some restraint on freedom of action . . . ," Id. at 432. However, "[d]espite the restraint on freedom of action involved in Terry . . . stops, an officer is not required to give Miranda warnings before asking questions reasonably related to dispelling or confirming suspicions that justify the detention." Id. at 431.

We are satisfied that at the time of Officer Holland's questioning, a reasonable person in defendant's position would not have understood himself to be subject to restraint comparable to that associated with a formal arrest. Holland's brief questioning and pat-frisk of defendant, together with the place and time of the encounter, did not constitute a de facto arrest, such that Miranda warnings were required before Holland could question defendant in the limited manner that he did here. Any need to give Miranda warnings was not triggered until defendant's arrest, which occurred after Dickson arrived on the scene and positively identified defendant.

VI

Defendant contends the judge erred in failing to properly credit defendant at sentencing with a mitigating factor. Defendant was sentenced on June 25, 2004, to an aggregate term of eleven years in prison. Defendant urges that his sentence was an abuse of discretion and must be modified.

The range of sentencing for second-degree crimes is between five and ten years. N.J.S.A. 2C:43-6a(2). The presumptive sentence pre-Natale II was seven years. N.J.S.A. 2C:44-1f(1)(c). The trial court found as aggravating factors the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); defendant's prior record, N.J.S.A. 2C:44-1a(6); and the need to deter, N.J.S.A. 2C:44-1a(9). The judge found no applicable mitigating factors.

Defendant contends the judge erred in failing to find mitigating factor number ten, that defendant is likely to respond to probationary treatment, N.J.S.A. 2C:44-1b(10). The judge, however, was required to consider only those mitigating factors that were supported by the evidence. See State v. Dalziel, 182 N.J. 494, 504-05 (2005).

We are satisfied that mitigating factor number ten was not supported by the evidence. The judge expressly found that defendant had "violated both probation and parole," and was on parole when he committed the present crimes. The judge was satisfied that the "very weighty" aggravating factors outweighed the non-existent mitigating ones. Defendant received the middle of the sentencing range for the crimes committed. The judge followed the sentencing guidelines and properly included only those sentencing factors that were supported by the record. The sentence imposed does not shock the judicial conscience.

 
Affirmed.

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

694 (1966).

State v. Natale, 184 N.J. 458 (2005) Natale II.

(continued)

(continued)

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July 21, 2006