STATE OF NEW JERSEY v. NIRA K. NEVINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2689-04T42689-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NIRA K. NEVINS,

Defendant-Appellant.

_________________________________

 

Submitted: May 9, 2006 - Decided May 25, 2006

Before Judges Kestin and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, 02-07-1311.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Rejecting her insanity defense based on multiple-personality disorder, a jury convicted defendant of two first-degree crimes: robbery, N.J.S.A. 2C:15-1, and kidnapping, N.J.S.A. 2C:13-1b; and a third-degree crime: terroristic threats, N.J.S.A. 2C:12-3. For the kidnapping conviction, Judge Neafsey sentenced defendant to serve a prison term of eighteen years, eighty-five percent without parole, see N.J.S.A. 2C:43-7.2, with 972 days of credit for time spent in custody prior to conviction. He imposed a concurrent sentence of thirteen years, eighty-five percent without parole, for the merged robbery and terroristic threats convictions. Appropriate penalties, assessments and fees were ordered.

Defendant raises the following issues on appeal:

POINT I DEFENDANT'S INCRIMINATING STATEMENT TO THE POLICE SHOULD HAVE BEEN SUPPRESSED DUE TO HER NOT BEING AFFORDED HER MIRANDA RIGHTS; THEREFORE, BECAUSE DEFENDANT WAS DENIED HER FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION, HER CONVICTIONS MUST BE REVERSED.

POINT II DEFENDANT'S SENTENCE WAS EXCESSIVE; THEREFORE, HER SENTENCE MUST BE VACATED AND THIS MATTER MUST BE VACATED AND THIS MATTER MUST BE REMANDED FOR RESENTENCING.

A. THE LOWER COURT FAILED TO RECOGNIZE APPROPRIATE MITIGATING FACTORS AND/OR RECOGNIZED AN INAPPROPRIATE AGGRAVATING FACTOR.

B. THE LOWER COURT ERRED BY NOT SENTENCING DEFENDANT TO SECOND-DEGREE CRIMES FOR THE FIRST-DEGREE KIDNAPPING AND ROBBERY CONVICTIONS, BECAUSE THE MITIGATING FACTORS SUBSTANTIALLY OUTWEIGHED THE AGGRAVATING FACTORS AND THE INTEREST OF JUSTICE SO DEMANDED.

The charges arose from defendant's conduct in robbing a bank by pretending to possess a gun that, in fact, did not exist, and forcing one of the tellers to drive her away. The police apprehended defendant a few moments later, a short distance away.

Prior to trial, Judge Neafsey conducted an evidentiary hearing on defendant's motion to suppress two declarations she had made to the police at the time of apprehension. The basis of the motion was that defendant had not been afforded the warnings prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). At the close of the hearing, the judge, for reasons expressed in an oral opinion, denied the motion to suppress. He concluded that the two statements in issue were voluntary in the due process sense, that is, they were not coerced and they were not the product of a custodial interrogation. We have analyzed the record in the light of the arguments advanced by the parties and prevailing legal standards, and are in substantial agreement with Judge Neafsey's expressed rationale.

We also discern no misapplication of discretion in Judge Neafsey's identification of the aggravating and mitigating factors to be considered on sentencing, in the weighing process he performed, or in his selection of the terms imposed.

 
Affirmed.

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A-2689-04T4

May 25, 2006