STATE OF NEW JERSEY v. MATTHEW JENKIN DIPAOLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2270-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MATTHEW JENKIN DIPAOLO,

Defendant-Appellant.

___________________________________________

November 20, 2012

Submitted August 13, 2012 - Decided

Before Judges Sapp-Peterson and St. John.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-06-0204.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Deputy Public Defender, of counsel and on the briefs).

Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On March 21, 2009, a grand jury returned an indictment against defendant, Matthew DiPaolo, on two counts: (1) forgery in violation of N.J.S.A. 2C:21-1, by altering a Darvocet prescription from ten to one hundred pills (count one); and (2) attempting to obtain a controlled dangerous substance by fraud in violation of N.J.S.A. 2C:5-1/2C:35-13, (count two). Defendant entered a conditional plea of guilty to count two of the indictment, while reserving his right to appeal from the motion judge's denial of the motion to suppress defendant's confession given to investigating police officers prior to his arrest. R. 3:9-3(f). Defendant now appeals from an order entered on December 31, 2010, denying his motion to suppress. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

The record of the Jackson-Denno hearing, Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), discloses the following facts. On March 21, 2009, while investigating a complaint about a fraudulent prescription, two police officers entered the Rite Aid where defendant was waiting to have his prescription filled and motioned him to come outside so they could speak with him. The officers' investigation was motivated by a telephone call to police that a fraudulent prescription had been submitted. The pharmacist contacted the doctor who wrote the prescription script and discovered that the amount of medication written by the doctor did not match the amount on the slip submitted by defendant to the pharmacy. The original slip had been written for ten Darvocet pills but the ten had been changed to one hundred.

At the Jackson-Denno hearing, Hackettstown police officer Glen Brotzman stated that he asked defendant to follow him and his partner Sergeant James Urban out of the pharmacy. Brotzman testified that neither he nor his partner exerted any physical control over defendant during the questioning. Once outside, he advised defendant that the prescription given to the pharmacist by defendant "was fraudulently doctored by putting another zero" after the number ten. Brotzman stated that defendant was not in custody or under arrest at that time. Defendant then acknowledged that he did change the number because he did not want to keep coming back to the pharmacy because he has chronic back pain.

Defendant testified that after being motioned by the officers to exit, he was directed to stand against a wall outside the Rite Aid where the officers proceeded to ask him questions about the prescription slip. He stated that he did not believe he was free to walk away. Brotzman denied any actions by them in this regard.

Defendant was not read his Miranda rights prior to police questioning him outside the pharmacy. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Once defendant was taken to the police station, he was given his Miranda warnings, after which he made no further statements to the police officers.

The motion judge determined that the interchange between the officers and defendant was an investigative discussion, rather than a custodial interrogation, thus obviating the need for the police officers to issue a Miranda warning. The judge denied defendant's motion to suppress his statement.

Following the ruling, defendant pled guilty to attempt to obtain a controlled dangerous substance by fraud. The forgery count was dismissed. Defendant was subsequently sentenced to two years probation, contingent on serving thirty days in county jail, with an option to apply to the corrections labor assistance program in lieu of jail time. This appeal ensued.

II.

We turn to defendant's contention that the motion judge erred in refusing to suppress the statements he made to the police. Our Supreme Court has explained the standard of review applicable to an appellate court's consideration of a motion judge's fact-finding on a motion to suppress as follows:

Our analysis must begin with an understanding of the standard of appellate review that applies to a motion judge's findings in a suppression hearing. As the Appellate Division in this case clearly recognized, an appellate court reviewing a motion to suppress 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. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474, 724 A.2d 234 (1999)); see also State v. Slockbower, 79 N.J. 1, 13, 397 A.2d 1050 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64, 570 A.2d 459 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164, 199 A.2d 809 (1964))).

An appellate court "should give deference 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." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44, (2007).]

However, our review of the motion judge's legal conclusions is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In reviewing a judge's ruling on a Miranda motion, we analyze police-obtained statements 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.), certif. denied, 178 N.J. 35 (2003) (citations omitted). 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).

Miranda warnings are required "'when an individual is taken into custody or otherwise deprived of his [or her] freedom by the authorities in any significant way and is subject to questioning.'" State v. Stott, 171 N.J. 343, 364 (2002) (quoting Miranda, supra, 384 U.S. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726). "'[T]he critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, and the status of the suspect.'" Id. at 365 (quoting State v. P.Z., 152 N.J. 86, 103 (1997)). Exculpatory or inculpatory statements made while a defendant is in custody are not to be used in the prosecution's case-in-chief if defendant was not advised of his Miranda rights. State v. Nyhammer, 197 N.J. 383, 400-01, cert. denied, __ U.S. __ , 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009); Stott, supra, 171 N.J. at 365 (2002); State v. Brown, 352 N.J. Super. 338, 351 (App. Div.), certif. denied, 174 N.J. 544 (2002).

The test employed to determine whether a custodial interrogation has taken place is an objective one. State v. Barnes, 54 N.J. 1, 6 (1969), cert. denied, 396 U.S. 1029, 90 S. Ct. 580, 24 L. Ed. 2d 525 (1970); State v. Cunningham, 153 N.J. Super. 350, 353 (App. Div. 1977). We consider the totality of the objective circumstances surrounding the police questioning, such as "the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances." State v. Coburn, 221 N.J. Super. 586, 595-96 (App. Div. 1987) (citation omitted) (internal quotation marks omitted), certif. denied, 110 N.J. 300 (1988); see also Stott, supra, 171 N.J. at 367-68. The analysis looks to whether objective evidence of the surrounding circumstances would lead a reasonable person to believe that he or she was free to leave. Stott, supra, 171 N.J. at 367-68; Coburn, supra, 221 N.J. Super. at 595-96.

In Nyhammer, the Court emphasized the import of the custodial aspect of the interrogation to determination of the Miranda issue.

Significantly, we are not aware of any case in any jurisdiction that commands that a person be informed of his suspect status in addition to his Miranda warnings or that requires automatic suppression of a statement in the absence of a suspect warning. The essential purpose of Miranda is to empower a person subject to custodial interrogation within a police-dominated atmosphere with knowledge of his basic constitutional rights so that he can exercise, according to his free will, the right against self-incrimination or waive that right and answer questions. Miranda, supra, 384 U.S. at 456-57, 86 S. Ct. at 1618-19, 16 L. Ed. 2d at 713-14. The defining event triggering the need to give Miranda warnings is custody, not police suspicions concerning an individual's possible role in a crime. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977) ("[P]olice officers are not required to administer Miranda warnings . . . because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.'"); Beckwith v. United States, 425 U.S. 341, 346-47, 96 S. Ct. 1612, 1616, 48 L. Ed. 2d 1, 7-8 (1976) ("It was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to custodial questioning." (Citation and internal quotation marks omitted)).

[Nyhammer, supra, 197 N.J. at 406.]

See also Stott, supra, 171 N.J. at 365 ("[T]he critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances . . . . ") (citation omitted) (internal quotation marks omitted).

Defendant maintains that he was not free to leave and was subject to a custodial interrogation when the police asked him questions outside the Rite Aid. However, the motion judge determined that the totality of the circumstances revealed that the exchange between defendant and the officers amounted to nothing more than an investigative discussion. The judge noted that the officers were attempting to determine why the prescription was incorrect, and whether a rational explanation existed for the ten versus one hundred pill discrepancy. The judge found credible that defendant was called outside of the Rite Aid by the officers in order to avoid any undue embarrassment for him had the investigative discussion occurred inside, in the presence of other patrons. Further, the motion judge noted that the officers at no time placed defendant into their patrol car or otherwise took physical control of his person during the discussion. Moreover, prior to defendant uttering his incriminating statement, the duration of the conversation with the police officers was short and devoid of anything to suggest that verbal or physical pressure was exerted upon him.

There is adequate credible evidence in the record to support the motion judge's determination that defendant's interaction with the police officers was investigative and not a custodial interrogation. Consequently, we affirm the order denying suppression of the statement.

A