STATE OF NEW JERSEY v. ANDRE OMAR WARREN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4718-02T44718-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE OMAR WARREN,

Defendant-Appellant.

____________________________

 

Submitted March 7, 2006 - Decided May 24, 2006

Before Judges Hoens, R. B. Coleman and

Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Criminal Part,

Hunterdon County, 01-04-0111.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michele C.

Buckley, Designated Counsel, on the

brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Russell J.

Curley, Deputy Attorney General, of

counsel and on the brief).

PER CURIAM

Defendant and two co-defendants were tried by a jury on charges stemming from an incident that occurred in the early morning hours of August 18, 2000. Defendant was ultimately convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count Three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (Count Five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Six); fourth-degree possession of a prohibited device, N.J.S.A. 2C:39-3(f) (Count Seven); third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (Count Nine); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (Count 10) and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (Count Twelve).

The judge merged Counts Three, Five, and Ten into Count Six and imposed a ten-year custodial term subject to the eighty-five percent period of parole ineligibility and the three-year post-release period of supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. She imposed an eighteen-month custodial term on Count Seven and a five-year custodial term on Count Twelve. Those sentences were to run concurrently with each other and with the ten-year term imposed on Count Six. The judge imposed a five-year custodial term on Count Nine to run consecutively to the sentence imposed on Count Six. Appropriate fines and penalties were imposed. Defendant appeals from his convictions and the sentences imposed. We affirm the convictions but remand for reconsideration of the sentences imposed and for the correction of the Judgment of Conviction.

These are the facts revealed by the record. Clinton Police Officer John Kubinak was on duty in the early morning of August 18, 2000, when he noticed a blue Plymouth with an inoperative left "marker light." After following the vehicle for a short period, Kubinak activated his overhead lights and the Plymouth pulled over. Kubinak exited his vehicle and approached the driver, whom he identified as defendant. When asked to produce a driver's license, registration, and insurance card, defendant indicated that he did not have those documents in his possession.

Kubinak then asked defendant to go to the rear of the vehicle where he explained that the stop had been occasioned by the inoperative rear marker light. Given defendant's behavior, Kubinak intended to conduct a "pat down" search for weapons. Before he could do so, however, the person in the front passenger seat, identified by Kubinak as co-defendant Scott Zeiner, indicated that he had the paperwork requested by the officer and requested Kubinak to "come here."

Immediately thereafter, all of the passengers exited the car and the left-rear occupant, later identified as Oneil McKoy, began firing a handgun at the officer. Kubinak testified that he retreated to the rear of his police car and fired at McKoy. As he did, Kubinak saw defendant running toward him. Kubinak retreated to a roadside ditch and saw defendant fire a weapon at him. Defendant then retreated toward a service road and the other occupants of the car retreated into the woods abutting the road.

Other officers came to Kubinak's aid and began a search for the occupants of the vehicle. Defendant was located on his back with his hands up and told the officers apprehending him that "I sorry." The police officers located a jacket, a hat and, shortly thereafter, a plastic baggie ultimately determined to contain 2.61 grams of cocaine where defendant had been found. When the police returned several hours later, they located a loaded handgun wrapped in a bandana in the same area.

Defendant testified. He denied shooting at Kubinak or having a gun. He denied any knowledge that anyone in the car possessed a gun and denied possessing cocaine, although he did admit to possessing a small amount of marijuana and ecstasy. Defendant claimed that when McKoy began shooting, he ran until he passed out, waking only when he was approached by the police officers.

In rebuttal, the State called Detective Quigley who testified to statements made by defendant after his apprehension that contradicted his trial testimony. Quigley indicated that he saw defendant, who had been taken to, and released from, a hospital, in a police car some twelve hours after the shooting. He administered the appropriate Miranda warnings and defendant agreed to speak to him. Defendant admitted that he knew at least one of the occupants of the car had a weapon and that he knew "things were going to get crazy." He said that he had run from the scene but did not claim to have passed out.

Detective Tavener also testified to a second statement given by defendant, after a second written waiver of his Miranda rights. That statement included a concession of defendant's knowledge that two of the occupants had guns and an admission that he possessed marijuana. Defendant did not tell Tavener that he had passed out after fleeing from the shooting. The interview was terminated when defendant asked for a priest.

Because the trial was not severed, the jury heard testimony that, after Kubinak had stopped the vehicle, Oneil McKoy (who was ultimately killed while being apprehended), said "This ain't right" and "We have to do something," after which he got out of the car and began shooting at Kubinak. The jury also heard testimony concerning the capture of the other occupants and the death of Oneil McKoy while resisting arrest.

On appeal, defendant argues:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER MR. WARREN FROM THE CODEFENDANTS AT TRIAL IN THAT INFLAMMATORY EVIDENCE WAS INTRODUCED REGARDING THEIR CONDUCT THAT WAS IRRELEVANT, LEGALLY AND FACTUALLY, TO THE CHARGES AGAINST MR. WARREN.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPRESS EVIDENCE SEIZED AS A RESULT OF AN ILLEGAL PRETEXTUAL STOP OF THEIR CAR BY OFFICER KUBINAK BASED UPON RACIAL PROFILING.

POINT III

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO CROSS-EXAMINE MR. WARREN WITH HIS STATEMENTS MADE TO POLICE AS THOSE STATEMENTS WERE NOT MADE VOLUNTARILY.

POINT IV

THE TRIAL COURT ERRED IN DENYING MR. WARREN'S MOTION FOR A JUDGMENT OF ACQUITTAL WHERE THERE WAS INSUFFICIENT EVIDENCE PRESENTED AT TRIAL TO SUPPORT THE JURY'S VERDICT.

POINT V

THE COURT ERRONEOUSLY SENTENCED MR. WARREN TO A TERM ABOVE THE PRESUMPTIVE TERM FOR HIS CONVICTION FOR SECOND DEGREE AGGRAVATED ASSAULT, AND ADDITIONALLY, ERRONEOUSLY ORDERED THAT MR. WARREN'S SENTENCE FOR POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE RUN CONSECUTIVE TO HIS OTHER SENTENCES.

POINT VI

IMPOSITION OF THE MAXIMUM TERM VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below).

We have analyzed the record in light of the arguments advanced on appeal and are satisfied that none of defendant's contentions merit reversal of his convictions.

The judge carefully considered the arguments advanced on appeal in Points I and II when they were presented by pre-trial motions and rejected them in a thoughtful twenty-one-page written opinion. When considering defendant's motion for severance, the judge recognized that a joint trial of co-defendants is authorized by R. 3:7-7 if the co-defendants "are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses."

She noted the preference to try co-defendants jointly, State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992), especially when the evidence of acts involving the co-defendants would be admissible in a separate trial, State v. Moore, 113 N.J. 239, 274 (1988), or if the jury may be appropriately instructed so as to eliminate any prejudicial effect of testimony concerning behavior of a

co-defendant. State v. Freeman, 64 N.J. 66, 68 (1973).

Analyzing the facts presented to her, the judge determined that

most, if not all of the actions of the defendants would be admissible in each other's trials under the doctrine of res gestae based on the continuous event, the proximity of time and place, their involvement with the same person, Officer Kubinak, and the jury's need to understand what went on.

She believed, correctly, that much of the testimony was necessary to provide "a complete picture of the events which occurred." State v. Byard, 328 N.J. Super. 106, 114

(App. Div.), certif. denied, 165 N.J. 490 (2000). The judge appropriately analyzed these factors and concluded that severance was not appropriate. We are in substantial accord with the judge's reasoning and add that she provided appropriately strong instructions requiring the jury to consider the guilt of each defendant individually as to each count.

Defendant next asserts that the stop of the vehicle was not justified and was, in fact, racially motivated. The judge took testimony with respect to this issue and concluded that Officer Kubinak did not know the races of the occupants of the car and that the stop, therefore, could not have been racially motivated. There is substantial evidence in the record to justify that finding and it may not be disturbed on appeal. State v. Johnson, 42 N.J. 146, 160-62 (1964).

Defendant also claims that the absence of a marker light, not required by our Motor Vehicle Statutes, cannot justify a stop. The judge considered this issue and concluded that Officer Kubinak's belief that there was a motor vehicle violation was reasonable under the circumstances and supported his actions. Although we are not convinced that an inoperative "marker light" is sufficient to justify stopping the offending vehicle, we are well satisfied the judge properly concluded that the events initiated by the actions of the occupants of the vehicle constituted independent crimes. Those actions would, as the judge found, dissipate any taint of an impermissible stop.

The motion judge recognized that evidence may be admitted even when the contact between the police and defendant leading to the evidence was initiated by wrongful police conduct. She correctly applied the law, set out in State v. Casimono, 250

N.J. Super. 173, 183 (App. Div. 1991), certif. denied, 127 N.J. 558 (1992), to the facts before her and concluded that "[a]pplying the Casimono test to the circumstances of this case, none of the evidence obtained in the investigation could remain tainted by an illegal stop of the defendants' automobile by Officer Kubinak. Any taint was dispelled by the unlawful actions of the defendants."

In sum, we agree with the judge's treatment of the issues raised in Points I and II and affirm substantially for the reasons set out in her written but undated memorandum supporting the September 4, 2002, order denying defendant's pre-trial motions.

Defendant's last two arguments relating to his conviction, raised in Points III and IV, lack sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2). We add only that our independent examination of this record in light of the arguments raised by the parties convinces us that there was sufficient evidence to justify the verdicts. The judge properly refused defendant's Rule 3:18-1 motion. See State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Marks, 201 N.J. Super. 514, 537 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986). Similarly, there was ample evidence to conclude that the statements made to Detectives Quigley and Tavener were voluntary. The judge drew appropriate legal conclusions from the facts as she found them and we have no warrant to reverse her decision. See State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993); State v. Boone, 114 N.J. Super. 521, 525 (App. Div.), certif. denied sub nom., State v. Terry, 58 N.J. 595 (1971).

Although we find no basis to disturb the convictions, we conclude defendant must be re-sentenced. The ten-year custodial sentence imposed on the second-degree crime charged in Count Six exceeded the presumptive term of seven years. N.J.S.A. 2C:44-1(f)(1)(c). The eighteen-month custodial sentence imposed on the fourth-degree crime charged in Count Seven exceeded the presumptive sentence of nine months. N.J.S.A. 2C:44-1(f)(1)(e). The five-year custodial sentences imposed on the third-degree crimes charged in Counts Nine and Twelve each exceeded the presumptive term of four years. N.J.S.A. 2C:44-1(f)(1)(d).

The State "recognizes that because the sentences imposed were above the presumptive term, a remand is necessary in light of [State v. Natale, 184 N.J. 458 (2005)]." Since the matter must be remanded for the imposition of a new sentence in accordance with the instructions of Natale and State v. Abdullah, 184 N.J. 497 (2005), we decline to address defendant's claim that the judge improperly weighed the aggravating and mitigating factors and should not have imposed consecutive sentences. Those questions should be considered anew on the remand.

The convictions are affirmed and the matter remanded for correction of the Judgment of Conviction to reflect the conviction of the third-degree crime charge in Count Twelve rather than the fourth-degree crime charged in Count Thirteen and for the imposition of new sentences in accordance with Natale and Abdullah.

 

The judgment of conviction improperly records the conviction for hindering as a fourth-degree offense charged in Count Thirteen. Count Thirteen related to a co-defendant and a review of the transcript of the verdict makes clear that defendant was convicted of the third-degree crime charged in Count Twelve.

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

Because the judge determined the stop was not racially motivated, we need not consider whether Casimono applies when the original stop was the result of racial profiling. That issue, raised in State v. Lee, 381 N.J. Super. 429 (App. Div. 2005) and State v. Ball, 381 N.J. Super. 545 (App. Div. 2005), is simply not implicated in this appeal.

(continued)

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A-4718-02T4

May 24, 2006