STATE OF NEW JERSEY v. JOHN J. BURGOS

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1804-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN J. BURGOS,

Defendant-Appellant.

____________________________________

April 25, 2011

Submitted November 17, 2010 - Decided

Before Judges Gilroy and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-06-0625.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark P. Stalford, Designated Counsel, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Marianne V. Rogers, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction by a jury and his sentence of eight years' imprisonment for aggravated assault and endangering the welfare of his infant son. We affirm the conviction but remand for reconsideration of the order of restitution as part of defendant's sentence.

On December 17, 2005, defendant and family members brought his two-month old son to the hospital with substantial injuries, including a broken leg. There, the child was diagnosed with cranial bleeding and a skull fracture, a healing femur fracture, and retinal hemorrhage. Later, doctors also diagnosed multiple rib fractures. Vineland police detective Henry questioned defendant and the child's mother at the hospital. Defendant denied knowing what caused the injuries. Several days later, Henry interviewed family members and determined that defendant was the last person who had been with the child before his distress and injuries were noticed.

On December 22, the detective asked defendant and the child's mother to come to the police station to give a taped statement. Defendant and the mother came to police headquarters at 1:00 p.m., but Henry called to say he would be late for the interview. He and a detective from the county prosecutor's office arrived after 2:00 p.m. They questioned defendant alone in a small office beginning at about 2:30 p.m. The police did not give Miranda1 warnings before beginning the interview. In answering questions, defendant contradicted some of his earlier statements, now saying he had accidentally struck the child's head on a railing as he carried him upstairs to their third-floor living quarters.

After that admission, the police warned defendant of his Miranda rights. They told him they did not believe his explanation and that he would be subjected to a test for voice stress analysis to determine whether he was telling the truth. At that point, defendant broke down and made incriminating statements. He said he had become frustrated because the child would not stop crying, and he had thrown him into his crib.

The police re-advised defendant of his Miranda rights before taking a taped statement beginning at 5:30 p.m. Defendant confessed that he had thrown the child into his crib on two occasions and that the child had hit his head. He also said that on a previous occasion the child's leg had become entangled in the spindles of the crib and was apparently injured.

Defendant was indicted for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He filed a pre-trial motion to suppress his statements, contending that the police had violated his Fifth Amendment rights by questioning him before giving Miranda warnings. The trial court held a hearing and denied defendant's motion to suppress. Defendant's statements were admitted in evidence at the trial, and the jury found him guilty on both charges of the indictment.

The court sentenced defendant to eight years' imprisonment on the aggravated assault charge, subject to the No Early Release Act, N.J.S.A.2C:43-7.2, requiring that defendant serve eighty-five percent of the sentence before he becomes eligible for parole and three years of parole supervision after he is released. On the endangering charge, the court sentenced defendant to a concurrent term of eight years' imprisonment with four years of parole ineligibility. The court also ordered defendant to pay $7,000 restitution to the Victims of Crime Compensation Agency.2

On appeal, defendant argues:

POINT I

THE COURT ERRED IN FINDING THE DEFENDANT'S STATEMENTS TO THE POLICE WERE ADMISSIBLE AS

DEFENDANT DID NOT MAKE A KNOWING, VOLUNTARY AND INTELLIGENT WAIVER OF HIS RIGHT AGAINST SELF-INCRIMINATION.

A. DEFENDANT WAS IN CUSTODY FOR

MIRANDA PURPOSES WHEN HE GAVE HIS UNWARNED STATEMENT.

B. THE UNWARNED INTERROGATION

RESULTING IN A STATEMENT BY

DEFENDANT TAINTED THE SUBSEQUENT WARNED QUESTIONING AND STATEMENT.

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, 10. (NOT RAISED BELOW).

POINT III

THE SENTENCE IMPOSED BY THE COURT IS MANIFESTLY EXCESSIVE.

With the exception of remanding to the sentencing court to determine whether defendant has the ability to pay the restitution ordered, we reject defendant's arguments.

I.

Defendant sought to suppress both his pre- and post- Miranda warning statements, contending that all his statements were obtained in violation of his Fifth Amendment and State law rights against self-incrimination.

On review of a motion to suppress evidence, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We defer "to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting Elders, supra, 192 N.J. at 244).

Miranda requires the familiar set of warnings when police interrogate a suspect who is in custody. State v. P.Z., 152 N.J. 86, 102 (1997). The police need not give the warnings unless the "person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706; see State v. Graves, 60 N.J. 441, 448 (1972); State v. Dispoto, 383 N.J. Super. 205, 214 (App. Div. 2006), aff d on other grounds, 189 N.J. 108 (2007). Miranda advice "is deemed necessary due to the pressure inherent in an 'incommunicado interrogation of individuals in a police-dominated atmosphere[.]'" State v. Stott, 171 N.J. 343, 364 (2002) (quoting Miranda, supra, 384 U.S. at 445, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707). "The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circum-stances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." P.Z., supra, 152 N.J. at 103.

Even if a suspect has been temporarily detained for investigation, brief non-coercive questioning does not require that the police first give Miranda warnings. See Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334-35 (1984); State v. Smith, 374 N.J. Super. 425, 431 (App. Div. 2005); State v. Brown, 352 N.J. Super. 338, 353-56 (App. Div.), certif. denied, 174 N.J. 544 (2002); State v. Pierson, 223 N.J. Super. 62, 67 (App. Div. 1988). The need for Miranda warnings depends on "circumstances includ[ing] the duration of the detention, the place and time of the interrogation, the nature of the questions and the language employed by the interrogator, the conduct of the police, the status of the interrogator, the status of the suspect, and any other relevant circumstances." Brown, supra, 352 N.J. Super. at 352; State v. Coburn, 221 N.J. Super. 586, 595-96 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988).

In this case, Detective Henry first questioned defendant and the child's mother at the hospital where the child was examined. If a defendant is not under arrest or guard, such questioning in a hospital is typically not viewed as a coercive police atmosphere requiring Miranda warnings. See State v. Zucconi, 50 N.J. 361, 364 (1967); State v. Choinacki, 324 N.J. Super. 19, 44-45 (App. Div.), certif. denied, 162 N.J. 197 (1999). Defendant was not in custody, and his freedom was not curtailed in a significant way, when he was initially questioned by Detective Henry at the hospital on December 17, 2005.

Nor was the initial interview at the police station on December 22 custodial interrogation that required Miranda warnings. Police are not required to give Miranda warnings every time questioning occurs in a police station. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977); State v. Micheliche, 220 N.J. Super. 532, 536 (App. Div.), certif. denied, 109 N.J. 40 (1987); State v. Downey, 206 N.J. Super. 382, 396 (App. Div. 1986); State v. Lutz, 165 N.J. Super. 278, 284 (App. Div. 1979).

Defendant argues that the circumstances of his questioning were very similar to those in State v. Pearson, 318 N.J. Super. 123, 134-35 (App. Div. 1999), where we held that the defendant was in custody for purposes of Miranda's prophylactic rules of interrogation. In Pearson, the defendant was questioned about the death of her child for about an hour and a half in her home before being asked to accompany the investigator to the prosecutor's office. Id. at 130. There, the defendant was placed in a ten by ten foot room for more than an hour before being questioned. Ibid. We found the interrogation to be custodial because:

the horrific condition of the dead infant, as well as the inherently coercive physical environment of the prosecutor's office, the length of time defendant remained at the office, and the nature of the questions put to defendant. These were such that a reasonable person in defendant's position would have realized she was a target of the prosecutor's investigation and was not free to leave.

[Id. at 134.]

In contrast to Pearson, defendant and the child's mother in this case went voluntarily to the police station for questioning. They waited an hour before being questioned, but Henry had called and notified them that he would be late. Defendant was separated from the child's mother and questioned alone, but that fact does not change his custodial status. See State v. Purnell, 310 N.J. Super. 407, 422 (App. Div. 1998), rev'd on other grounds, 161 N.J. 44 (1999). Henry informed defendant that he was free to leave. He was given water and tissues and allowed to use the restroom. The door was not locked. Also, the trial court found that the detectives were sympathetic and not threatening or heavy-handed in their manner of questioning defendant. The totality of the evidence supported the trial court's finding that defendant was not in custody at the time of his initial questioning.

Relying on State v. O'Neill, 193 N.J. 148 (2007), defendant argues that the police employed a prohibited "question first, warn later" approach in eliciting incriminating statements from him. In O'Neill, the Court held that, if the police first question a suspect in custody without Miranda warnings and issue the warnings only after he makes incriminating statements, the statements made after the Miranda warnings may also be inadmissible at trial. Id. at 154-55, 179-80. As the Court stated in State v. Nyhammer, 197 N.J. 383, 403, cert. denied, __ U.S. __, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009), "[W]hen Miranda warnings are given after a custodial interrogation has already produced incriminating statements, the admissibility of post-warning statements will turn on whether the warnings functioned effectively in providing the defendant the ability to exercise his state law privilege against self-incrimination."

The prohibition of O'Neill, however, only applies when the original questioning was custodial and therefore required that Miranda warnings be given. As we have stated, the initial questioning in this case was not conducted while defendant was in custody. The holding of O'Neill has no application to the facts of this case.

In sum, we conclude that the trial court did not err in denying defendant's motion to suppress his statements.

II.

Defendant argues next that he is entitled to a new trial because he received ineffective assistance of counsel at his trial and sentencing. Allegations of ineffective assistance of counsel are usually not ripe for review on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). That is so because such claims typically require evaluation of evidence outside the trial record. We decline to address defendant's arguments without an adequate record. Defendant must raise any such claims of ineffective assistance of counsel through a petition for post-conviction relief under Rule 3:22.

III.

Defendant argues that his eight-year sentence was excessive. The second-degree crimes of which defendant was convicted have a statutory sentencing range of five to ten years' imprisonment. The sentence imposed was in the middle of that range. Furthermore, application of the No Early Release Act, N.J.S.A. 2C:43-7.2, to the aggravated assault conviction was mandated by that statute.

The trial court found three aggravating factors under N.J.S.A. 2C:44-1a: the gravity and seriousness of the harm to the child, upon whom multiple serious injuries had been inflicted and who continued to suffer their ill effects; the risk defendant will commit another offense; and the need for deterrence. The court found one mitigating factor under N.J.S.A. 2C:44-1b, defendant's lack of a prior criminal record. Defendant argues that the court improperly weighed the aggravating and mitigating factors. We conclude, however, that sufficient, credible evidence supports the court's findings of aggravating and mitigating factors, and that the sentence was within the court's discretionary authority. SeeState v. Bieniek, 200 N.J. 601, 611-12 (2010); State v. Roth, 95 N.J. 334, 364-66 (1984).

Finally, defendant contends that the court erred in ordering restitution of $7,000 without first conducting a hearing on defendant's ability to pay. He argues he had no assets or income at the time of his sentencing; his previous employment as an assistant manager provided only a small income; and he will be incarcerated for a minimum of six years and nine months, and thus will have no ability to earn income to pay restitution.

When ordering payment of restitution pursuant to N.J.S.A. 2C:44-2, the sentencing court must find that "[t]he defendant is able to pay or, given a fair opportunity, will be able to pay restitution." N.J.S.A. 2C:44-2b(2). The statute "grants to the court considerable discretion in evaluating a defendant's ability to pay," and "[t]he evaluation is necessarily imprecise because it contemplates an examination of the future ability to pay if the defendant currently does not have financial resources." State v. Newman, 132 N.J. 159, 169 (1993). But the sentencing process requires notice and a hearing in which a defendant has the opportunity to present evidence on the amount of loss to the victim and his ability to pay for that loss. See State v. Kennedy, 152 N.J. 413, 425 (1998); State v. Bausch, 83 N.J. 425, 435-36 (1980).

In this case, defendant made no concession that he had the ability to pay $7,000 in restitution, as the defendant had done in State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994). In addition, the trial court made no finding of defendant's ability to pay. See State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div.), certif. denied, 170 N.J. 210 (2001). Consequently, we must remand to the sentencing court to determine defendant's financial circumstances and whether he has the ability to pay the restitution ordered. See State v. McLaughlin, 310 N.J. Super. 242, 263-65 (App. Div.), certif. denied, 156 N.J. 381 (1998).

Defendant's convictions and sentence are affirmed, except that the matter is remanded for a hearing on defendant's ability to pay the restitution ordered as part of his sentence. We do n

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

2 In 2007, the Legislature replaced the Violent Crimes Compensation Board and the Victims of Crime Compensation Board with the Victims of Crime Compensation Agency. See L. 2007, c. 95, 2 and 3, N.J.S.A. 52:4B-3.2 and -3.3.