STATE OF NEW JERSEY v. MATTHEW STREET

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3393-03T13393-03T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MATTHEW STREET,

Defendant-Appellant,

__________________________________

 

Submitted November 18, 2009 - Decided

Before Judges Miniman and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 02-09-0857.

Law Offices of Edward J. Crisonino, attorneys for appellant (Mr. Crisonino, on the briefs).

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Matthew Street appeals his conviction on one count of first-degree carjacking, contrary to N.J.S.A. 2C:15-2(a), as well as the resulting sentence of fourteen years in state prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

I.

We discern the following facts and procedural history from the record.

A.

Street and Kyle Smalfus, along with their respective girlfriends, Angela Milcarek and Nicole Rodilosso, had been camping in the Port Elizabeth area of Cumberland County on August 11, 2002. Street, Smalfus and Rodilosso had been drinking brandy and using prescription drugs at the campsite. According to Milcarek, the other three had been drinking and doing drugs "all day." The group eventually decided to leave the campsite to obtain some marijuana.

Milcarek drove Street's car when the foursome left the campsite. The car broke down before they reached the highway. They pushed the car to the side of the road near an Applebee's. A police officer arrived at the scene and assisted them. The car was eventually restarted, but broke down again across the road from a Wawa. They parked the car in the parking lot of an adjacent doctor's office. Street and Smalfus walked across the road to the Wawa, while Milcarek and Rodilosso stayed by the car.

According to Smalfus, when they reached the Wawa, Street suggested that they steal a car with the keys inside. Street walked around looking for such a car. Shortly afterward, the victim pulled up to the Wawa in a 1993 Toyota Corolla and went into the store. When the victim came out of the store, Smalfus told the victim about the breakdown and asked if he would give them a ride two or three exits down Highway 55. Feeling sorry for them, the victim agreed to give them a lift.

Smalfus and Street signaled Milcarek and Rodilosso to join them at the victim's car. According to Smalfus:

As [the girls] started walking over, I said to [Street], "This guy is not going to take us to Camden, you know?" And [Street] stated, "Well, let's just take his car, get him for his car." I said, "All right. Well, how we going to, you know?" Then as the girls were getting in the car, I said, "[Street], give me your lighter." He handed me a lighter."

And then as -- after he handed me the lighter he -- while he was getting in the passenger's side I was getting behind the driver and the two girls were getting in. And as [Street] looked at me, I had the lighter in my hand and I said, I gave him a motion, and I was like, "I'm going to," we sort of nodded at each other. I was trying to tell him I was going to stick it to his back when we pull over. Right before that, Matt said, you know, "I'm going to tell him to pull over. I got to piss and we're going to take his car." We had to find a way to do it.

All four got into the victim's car, with Street in the passenger seat and Smalfus, Milcarek, and Rodilosso in the back seat.

Soon after the victim drove onto Highway 55, Street told the victim he had to relieve himself and asked him to pull the car over to the side of the road. According to the victim, once he had pulled over, Smalfus drew a gun and put it to the back of his neck. Smalfus and Street started yelling at the victim: "Get the f-ck out of the car." He complied with their demand.

After they drove off, Smalfus showed Milcarek and Rodilosso that the "gun" he had threatened the victim with was just a lighter he had held under his t-shirt. Street drove the car to Camden, where they tried unsuccessfully to sell the car for crack cocaine. Smalfus subsequently bought crack and smoked it with Street and Rodilosso.

Street then drove Smalfus and Rodilosso to Rodilosso's apartment. He and Milcarek drove back to Port Elizabeth. When they saw no one at the campsite, they drove toward Street's home. Street left the car in a parking lot behind a card store and hid the keys in the dirt under a log. The next day, Milcarek and two other individuals assisted Street in driving the victim's car to Philadelphia, where they abandoned it. Street and Milcarek then went to retrieve Street's car from the doctor's parking lot.

B.

In the interim, the carjacking had been reported to the police. In addition, Street's car had been towed from the doctor's parking lot. When Street and Milcarek were unable to locate the car where they had left it the night before, Street contacted the police. Officer Ronald Garvey, a patrolman with the Vineland Police Department, was dispatched to the scene around 3:30 p.m. that afternoon. He met Street and Milcarek in the parking lot. By that time, however, Garvey had been briefed about the carjacking the previous night, and was aware that Street was a suspect.

Street told Garvey that the car had broken down twice the previous day, once near the Applebee's and then again near the parking lot, and that he had left the car in the parking lot overnight, but that it was no longer there. Street had called the police to find out whether it had been stolen or towed. Garvey suggested that Street come to the police station.

Street went to the station with Garvey and was seated in the report room. Garvey told Street that he would investigate the whereabouts of Street's car. Garvey then informed his supervisor and the detective bureau that he had a suspect for the carjacking at the station.

According to Street's testimony at the Miranda hearing, Garvey told Street that he should fill out a missing car report at the police station. Street testified that, after being taken to the station and seated in the report room, Garvey took information from him about his missing car. Street stated that Garvey went to show the report to the police chief, and that when Garvey returned, he handcuffed Street to the wall. Street testified that he had felt that he was free to leave up until he was handcuffed.

Street testified that the Miranda rights were read to him after he was handcuffed. He refused to sign the release and asked for a lawyer. Street explained that he did not sign the release because he did not understand what he was being charged with. According to Street, after he refused to waive his Miranda rights, Garvey told him that he would be charged with filing a false report.

Street also asserted that another police officer spoke to him at that time, and that it might have been the officer who helped him the first time the car broke down the previous night. It is unclear from Street's testimony whether this other officer spoke to him before or after he requested an attorney. Street testified that the officer had asked him questions about the carjacking and whether he was responsible.

Street testified that Garvey left the area for forty-five minutes. When Garvey returned, Street told him that he wanted to make a statement because he was scared that he would be charged with filing a false report. During his testimony, Street also stated that he had been under the influence of heroin when he was at the police station, having ingested the substance in the doctor's parking lot shortly before Garvey arrived.

At the Miranda hearing, Garvey testified that he reviewed the carjacking report after seating Street in the report room. Garvey then spoke with Milcarek, who said that she had been with Street when his car broke down the preceding night. Garvey returned to Street, who told him that he had been with a female named Stacey Smith at that time. Garvey then went back to Milcarek and asked her why Street had said he was with someone else. Milcarek could not explain the discrepancy. Garvey testified that he then returned to Street and read him the Miranda rights.

Garvey testified that Street refused to sign the Miranda release. He nevertheless asked Street why he would say he was with someone other than Milcarek. According to Garvey, Street replied that he did not want to get Milcarek "in any trouble." Garvey then proceeded to question Street about what took place at the Wawa. Street told Garvey that he wanted an attorney and did not want to answer any more questions. According to Garvey, he then refrained from questioning Street any further.

Garvey testified that Street later asked if Garvey had any other questions and told Garvey that he would like to make a statement about the carjacking. Garvey said that he did not question Street between the point at which Street asked for an attorney and the time Street asked to give a statement. Garvey read Street the Miranda rights a second time, and Street signed the Miranda release at 4:40 p.m. Street then made a statement about the events of the previous evening, including the carjacking.

Garvey testified that he did not actually detain Street until he had received the inconsistent information from Street and Milcarek. He did not recall whether or not he had handcuffed Street at that time, but stated that Street was not free to leave the report room from that point on. Garvey also testified that no other officers would have spoken to Street.

Garvey initially testified that he did not recall whether he had mentioned charging Street with filing a false report between the time Street asked for a lawyer and gave his statement, but stated that he would not have threatened Street with such a charge in order to obtain a statement.

Detective Christopher W. Brunetta later took over the questioning of Street. Brunetta testified at the Miranda hearing that he also read Street his Miranda rights, and that Street agreed to sign the Miranda waiver and to speak with him without an attorney present at 7:15 p.m. Brunetta could not recall whether or not Street had handcuffs on when he first saw him in the report room.

C.

On September 25, 2002, Street and Smalfus were indicted on two counts: one count of carjacking in the first degree, contrary to N.J.S.A. 2C:15-2(a), and one count of theft of a motor vehicle in the third degree, contrary to N.J.S.A. 2C:20-3. Smalfus plead guilty to carjacking in February 2003.

Street moved to suppress his statements to the police. The Miranda hearing was held on May 28, 2003, before Judge John M. Waters, Jr. Judge Waters determined that the challenged statements would be admissible at trial. He stated his findings of fact and conclusions of law as follows:

At any rate, I can certainly infer that and I believe there was direct testimony that Mr. Street had been identified as a potential suspect in this but . . . Officer Garvey responded at approximately 3:30 p.m. to the doctor's office . . . , across the street from the Wawa Store, to respond to the report of a missing vehicle, and when he arrived there, he encountered the defendant and the defendant's girlfriend, Angela Milcarek.

The -- he spoke with the defendant at the scene and although he was aware that the automobile had been towed, he did not disclose that to the defendant but rather suggested the defendant should accompany him to the station in order that the defendant could further participate in the investigation of his missing motor vehicle to determine whether or not it had been towed or whether or not it had been stolen or whatever the case may be.

At the station I find that the officer solicited the defendant to describe the circumstances of how the car came to be at the doctor's office and in whose company he was that evening. And he provided the officer with an answer that was different than that which the officer obtained from the defendant's girlfriend who independently came to the station, perhaps following the officer or made her own way there; the testimony wasn't clear.

But the defendant's testimony was consistent with that of the officer in most respects up to this point. The defendant indicates that there was no conversation on the way to the police station and that he voluntarily went to the police station in response or in pursuit of his issues regarding the missing motor vehicle.

However, at the station at some point in time the defendant was advised that he was a suspect in a carjacking incident that had occurred the night before and the defendant was then read his Miranda Rights. And this took place at 3:55 p.m.

I find that the defendant did understand those rights notwithstanding his statements to the contrary. The defendant refused and exercised those rights.

And I also find that the officer did not further attempt to discuss anything with him. There was some testimony that perhaps another officer, the one that had been at the Applebee's parking lot the night before may have initiated some conversation with the defendant but I don't think there's any effort to try and use any statements made by the defendant at that point in time.

Officer Gravey's testimony was that the defendant then initiated the next contact some minutes later. And frankly I think that there's a very high likelihood at that point in time that the defendant may very well have been handcuffed regardless if the officers say they remember that.

But I think at that point in time from the minute that they suggested to him that he was a suspect in a carjacking that it became a custodial interrogation. But that notwithstanding he was advised of his Miranda Rights, exercised those rights and no further questions took place until he initiated the contact after sitting there for 40 minutes or so and having an opportunity to reflect on his circumstances.

I don't buy the story that it was because of some threat that he'd be charged with filing a false report . . . , and I understand that I have a law degree and many years of experience, but in my mind in any kind of circumstance they would worry a lot less about being involved with filing a false police report than they would with being involved in a carjacking and in the possession of a stolen motor vehicle and all the other things that defendant obviously had knowledge of when we hear his statement.

So given that circumstance, I find that -- that the threat of -- of say being charged with a bogus crime of filing a false report when everyone present knew that the defendant couldn't have known that the vehicle was in the police officer impoundment yard or wherever it was, at the station, it just doesn't pass muster with this court and I don't find that to be a fact.

That notwithstanding at approximately 45 minutes after the first Miranda Warnings the defendant indicated initially in a conversation with Officer Garvey he indicated that he . . . was going to answer questions. At which point in time Officer Garvey did exactly that which he was supposed to do. He reread the defendant his Miranda Rights. And S-2 in evidence is that Miranda Form.

At this point in time the defendant signed the Miranda Form indicating, I acknowledge that I've been advised of the constitutional rights found in the upper portion of this form and I understand each of these rights. And at 4:40 p.m. the defendant signed the [Miranda Form] and provided certain information to Officer Garvey.

Thereafter, the detectives arrived at the station and Detective Brunetta was assigned to continue this investigation. He again advised this defendant of his rights to remain silent, his rights to counsel and all the other rights that have become the progeny of Miranda v. Arizona. The United States Supreme Court articulated these constitutional rights and the manner and method by which police shall advise them [to] individuals before any such statement made while in custody being interrogated could be used in evidence against said defendant.

The defendant at the outset of this conversation with Detective Brunetta signed [a second Miranda Form] which was done at 7:15 p.m. and thereafter gave both an oral statement to Detective Brunetta as well as a tape statement in which he again acknowledged that he had been advised of his rights and that he was voluntarily making a statement in so many words if I may paraphrase.

I find that . . . the statements made up to the point in time [where] the defendant deviated or let's say -- I don't want to say deviated but up to that point in time where the defendant's answers regarding his whereabouts the night before, who was with him differed from that of his girlfriend in which he was advised that he was -- that there were discrepancies in his statement and that -- who then read his rights as testified by Officer Garvey and that any and all statements made up to that point in time were not in a custodial surrounding. And as a consequence there was no need to provide him with his Miranda Warnings either at the scene or at the station.

Thereafter the scenario changed and there was a custodial interrogation being undertaken at that point in time. I find however that the defendant was advised of his rights, that he exercised those rights and then later elected to change his mind. In doing so he reread the rights. He had them explained to him. He understood them.

I find that there was a free and voluntary waiver, notwithstanding the fact that it wasn't a custodial interrogation and that the statements used against -- or used subsequent to [the Miranda Forms] being executed and in the interim between the two may be used in evidence against the defendant.

So in conclusion I conclude that there has been no -- there would be no violation to defendant's constitutional rights to permit the use of these statements in evidence against him. And I -- I include by reference the statements made to Officer Garvey at the scene of the doctor's office, in the station prior to the discrepancy being pointed out to the defendant as a result of his inconsistencies, and saying who had been with him the night before when his girlfriend described a different scenario than he had explained to the officers.

If in fact he was handcuffed and that may very well be the case, it would -- I would find that was the time that it happened because that's the time that the court finds that the situation changed and that he was detained, if you will, to use the words of the officer very frankly, and therefore no -- not able to leave the station of his own free will without the permission of the officers.

And very frankly, he may or may not have been handcuffed. I don't think it makes a difference with me because initially he exercised those constitutional rights, however, reflecting upon them after a period of time, he initiated the -- the conversations with the officers that led to him waiving those rights after having been readvised of the rights and I find that was a free and voluntary waiver of those rights.

On June 23, 2003, the State moved to dismiss the second count, theft of a motor vehicle, and stated its intention to proceed against Street only on the carjacking count. Judge Waters granted the application. The jury trial was held on June 24 and 25, 2003. At the close of his case, Street moved for acquittal. The motion was denied. The jury found Street guilty of carjacking.

On June 27, 2003, Smalfus was sentenced to seven years, subject to the No Early Release Act (NERA). The State did not contest Smalfus's application to be sentenced as a second-degree offender in return for his testimony at Street's trial.

On August 1, 2003, Street moved for a new trial, and the motion was denied. Street was then sentenced to fourteen years in state prison, subject to NERA. The requisite fines and penalties were also imposed.

This appeal followed.

II.

Street raises the following issues on appeal:

Point One: Failure to administer Miranda Warning before Defendant was handcuffed and in custodial interrogation led to a "cat out of the bag" situation where Defendant later signed the Miranda Warnings and made a statement which was not fully voluntary.

Point Two: Co-Defendant's proffered testimony at Defendant's trial was grossly inconsistent to previous statements to the police as well as previous statements made at his own plea hearing.

Point Three: The Prosecutor's comments during summation far exceeded the scope of fair comment and deprived Defendant of his Federal and State Constitutional Rights to Due Process and to a fair trial requiring a reversal of his conviction.

Point Four: The sentence imposed by the trial court was manifestly excessive.

A.

We turn first to the Miranda issue. In reviewing a trial court's denial of a Miranda motion, we analyze police-obtained confessions using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (citations omitted), certif. denied, 178 N.J. 35 (2003). We will not engage in an independent assessment of the evidence as if we were the court of first instance, State v. Locurto, 157 N.J. 463, 471 (1999), nor will we make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997), but we instead defer to the trial judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

A suspect's confession during a custodial interrogation can only be obtained if that suspect was supplied with his or her Miranda rights. Miranda, supra, 384 U.S. at 461, 86 S. Ct. at 1621, 16 L. Ed. 2d at 716. Before considering the validity of a waiver of Miranda rights, it must be established that the police scrupulously honored the suspect's rights to remain silent. State v. Burno-Taylor, 400 N.J. Super. 581, 589 (App. Div. 2008). If the suspect's words or conduct, upon being advised of his or her rights, could not reasonably be viewed as invoking the right to remain silent, this requirement is satisfied and the police may continue their questioning. Id. at 590.

A trial court will admit a confession into evidence only if the State has proven beyond a reasonable doubt that, based on the totality of the circumstances, the suspect's waiver of those rights was knowing, intelligent and voluntary. Patton, supra, 362 N.J. Super. at 42. The court must specifically consider the defendant's characteristics and the nature of the interrogation, and may include in its consideration the defendant's age, education, intelligence, length of detention, advice concerning constitutional rights, whether questioning was repeated and prolonged, and whether physical punishment or mental exhaustion were involved. See State v. Galloway, 133 N.J. 631, 654 (1993).

Courts analyze whether police conduct coerced a confession by first determining whether the conduct violated the suspect's due process rights. See State v. Smith, 32 N.J. 501, 544 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961). New Jersey thus places a "mandatory burden on all courts to test the admissibility of confessions not only by the ordinary rules of evidence but by the deeper constitutional requirement of fundamental fairness." State v. Driver, 38 N.J. 255, 282 (1962).

A suspect's confession is considered involuntary if it is the product of psychological or physical coercion. Galloway, supra, 133 N.J. at 654. Unlike cases of physical coercion, however, the use of psychological techniques is not in and of itself coercive; rather, courts must analyze whether the confession was the result of the defendant's change of mind and not a broken will. Id. at 654-55. A confession is voluntary if it is the product of an essentially free and unconstrained choice where the defendant's will has not been "'overborne and his capacity for self-determination critically impaired.'" State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973)). Cases which hold that a defendant's will has been overborne typically require the defendant to demonstrate a showing of "very substantial psychological pressure." Galloway, supra, 133 N.J. at 656.

Street argues that the statements given to Garvey after he received his Miranda warnings were involuntary because the "cat" had been "let out of the bag" during inappropriate pre-Miranda questioning. He contends that the judge should have suppressed all of his statements because he should not have been interrogated at all until he received his Miranda warnings. We disagree.

Miranda warnings are required only when a suspect is subjected to custodial interrogation by a law enforcement officer. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 308 (1980). A defendant is deemed to be in custody "'if the action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely.'" State v. McLaughlin, 310 N.J. Super. 242, 252 (App. Div.) (quoting State v. O'Loughlin, 270 N.J. Super. 472, 477 (App. Div. 1994)), certif. denied, 156 N.J. 381 (1998).

The trial judge determined that there was no custodial interrogation of Street until the Miranda warnings were given, which was after Street's answer about his companion the night before differed from Milcarek's. That determination is well supported in the record.

Street had reported the missing car to the police. Garvey went to the doctor's private lot to speak to him about the missing car. Although Garvey knew that Street was a suspect in the carjacking at that time, Street did not. When Garvey suggested that Street go to the police station to discuss the matter further, he told Street that he could go to the station with him or with his girlfriend. Once they arrived at the station, Street was placed in the "report" room. He felt free to leave until he was handcuffed by Garvey. The statements made prior to that point, which concerned the missing car and the assertion that he had been with someone other than Milcarek, were not the result of custodial interrogation and, therefore, not subject to suppression under Miranda principles. Judge Waters' decision to deny the motion to suppress those statements was legally sound and supported by the evidence, as was his determination that the post-Miranda statements were given freely and voluntarily.

B.

Street next contends that his conviction should be overturned because of inconsistencies between Smalfus's trial testimony and his two pretrial statements, i.e., his statement to the police and his testimony at his plea hearing. His reliance on State v. Cahill, 125 N.J. Super. 492 (Law Div. 1973), in that regard is totally misplaced.

In this case, Smalfus made no "exculpatory" statement with respect to Street, as was the case with the testifying co-defendant in Cahill, supra, 125 N.J. Super. at 494-95. Cahill's co-defendant had stated, during plea discussions, that Cahill did not use a weapon, but testified that he did use one at Cahill's trial. Id. at 495. Although Smalfus's trial testimony and pre-trial statements were not identical or even totally consistent in detail, each of them involved a factual assertion by Smalfus that, prior to getting into the victim's car, he and Street discussed taking the car from the victim after they asked him to pull to the side of the road. Smalfus was cross-examined extensively about his prior statements at trial.

Consequently, there is nothing in the record to support Street's assertion that the State knowingly relied on perjured testimony by Smalfus or withheld from the jury a prior exculpatory statement.

C.

Street also contends that the prosecutor made impermissible arguments during summation. Because the issue of impropriety in the prosecutor's summation was not raised by defense counsel at trial, it is evaluated on appeal by the plain error standard. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted). Indeed, the Supreme Court has recognized that "criminal trials create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)).

We find no substance to Street's assertions of prosecutorial misconduct. Our review of the summations as a whole reveals no such impropriety by the prosecutor. Her arguments with respect to the credibility of the various witnesses, including Milcarek, were fair comment and based upon facts in the record. See State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div. 2007), aff'd, 195 N.J. 493 (2008). We discern no improper vouching for the credibility of the State's witnesses. We also see no merit in Street's argument that the purported "overwhelming amount" of discussion of Smalfus's sentence could have led the jury to believe that Street was facing a minimal sentence.

D.

Finally, we turn to Street's argument that his sentence was excessive. An appellate court "will exercise that reserve of judicial power to modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Dalziel, 182 N.J. 494, 501 (2005) (citation omitted). "Although no inflexible rule applies, reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range." State v. Natale, 184 N.J. 458, 488 (2005).

Street was convicted on one count of carjacking. N.J.S.A. 2C:15-2(b) provides a specific sentencing range, between ten and thirty years imprisonment, for that offense. Street was sentenced to fourteen years. In comparison, Smalfus, who accepted a plea offer and cooperated with the State by testifying against Street, was sentenced as a second-degree offender and received a seven-year prison term. Both sentences were subject to NERA.

Judge Waters carefully considered and applied the sentencing considerations for carjacking cases, as set out in State v. Zadoyan, 290 N.J. Super. 280, 291 (App. Div. 1996), as well as the standard aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b). Based upon those considerations, he imposed a sentence only four years more than the statutory minimum of ten years. He articulated his reasons, in part, as follows:

So I find it to be on the lower end of the scale, but not the very bottom, very frankly, because I have perhaps very inarticulately stated it in the past in connection with these things. It isn't necessarily a result that someone is physically injured. There's a certain level of damage that occurs to someone -- the victim in this crime did not know that it was not a gun. I accept his testimony that he believed it was a gun. And the fear that you would experience isn't the fear of someone putting a cigarette lighter in your back or your neck or wherever it was placed; it's the fear that it's a gun. And I believe that the jury believed that you were a willing participant in that and I so find that you were a participant in that although it was not in your hand, that you actively took part in this carjacking and that you participated by removing -- assisting in the removal of this victim from the automobile.

Everyone here, I see your family behind you experiencing a great deal of anguish. Everyone here has a certain level of sympathy for your position. I undoubtedly understand and realize that you are where you are as a result of drugs; of heroin and cocaine and addiction and alcohol and other drugs. There's no question about that in my mind that but for controlled substances, you probably would not be standing in front of me today. You might be involved in a number of nuisance things that have happened throughout the course of your life, but when I read this Pre-Sentence Report, I saw an absolute American tragedy; an individual who participated in church activities to the extent that he volunteered to help those less fortunate than he, that he tutored them in religious studies. Then the next thing you see is an individual standing before you addicted to heroin and charged with a first-degree offense with a great exposure of losing a substantial portion of his life to the New Jersey State Prison system. An absolute tragedy.

Frankly, I had a range in mind when I walked in here. I normally have written down on my paper how I'm going to sentence someone when I come into court. I did not do it in this case because I was torn by the compelling interests that I saw in this trial. But one of the things that the Prosecutor pointed out and I want to make perfectly clear, you certainly are not going to be punished because you went to trial. It is your absolute right and it is the right of every American and I agree with you 100 percent.

The difficulty with going to trial is oftentimes the Judge hears a lot of things that he wouldn't necessarily hear. He gets a lot of the detail. He senses the fear of the victim. That's the difficulty of going to trial if, in fact, the State is able to prove the case beyond a reasonable doubt. But you have every right in the world to maintain your innocence and indicate that you reacted out of fear.

I don't find that to be the case, Mr. Street. I find that you were a willing participant, and I take into account the level of fear that I saw from that victim who testified on the stand in sentencing you.

We have reviewed Street's contentions with respect to the aggravating and mitigating factors, and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Finally, relying on State v. Roach, 146 N.J. 208, 231-234, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996), Street points to the difference between his sentence and Smalfus's, arguing that his was impermissibly disparate. Again, we disagree.

As the Supreme Court held in Roach, supra, 146 N.J. at 232, "[d]isparity may invalidate an otherwise sound and lawful sentence."

We acknowledge that "[a] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." [State v. Hicks, 54 N.J. 390, 391 (1969)]. However, although the sentence imposed on defendant falls within the statutory limits mandated for the offense, "there is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators." State v. Hubbard, 176 N.J. Super. 174, 175 (Resentencing Panel 1980) (citing State v. Whitehead, 159 N.J. Super. 433 (Law Div. 1978), aff'd, 80 N.J. 343 (1979)). The purpose of the guidelines is to promote fairness and public confidence in the "even handed justice of our system." Hicks, supra, 54 N.J. at 391. The question therefore is whether the disparity is justifiable or unjustifiable.

[Id. at 232-33.]

Judge Waters addressed the difference between Street's fourteen-year sentence and Smalfus's seven-year sentence, as follows:

I've sentenced you well toward the lower range of that, and I take into account, very frankly -- I really don't buy the argument that your co-defendant received a different sentence. Your co-defendant received that sentence because of other mitigating and aggravating factors that were applicable to him that may or may not have been applicable to you. And certainly, Factor Number 12 which is his willingness to cooperate with authorities was a substantial factor in that regard. So I don't think you can compare apples and oranges.

It was the same event; you were very similarly situated in many respects, but you focus on the individual as well as the crime. The statute sets forth the level of the crime, and I'm kind of bound within the -- I'm given a certain range within which I can operate, and I think I've operated fairly and appropriately within that range.

We are satisfied that Judge Waters adequately explained the disparity in sentences, based in large part on the differences between the defendants involved, and that the disparity does not rise to a level requiring our intervention.

III.

In summary, we reject the arguments raised by Street on appeal, and affirm both the conviction and the sentence.

Affirmed.

Garvey described the report room as a "general area [at the police station] there where we take complaints and handle arrested subjects for processing."

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

Judge Waters noted that, at one point during Street's testimony, he had noticed that Street's father was mouthing answers to his son. At the time, he admonished the father that signs of coaching weighed against finding Street a credible witness.

(continued)

(continued)

28

A-3393-03T1

December 23, 2009