STATE OF NEW JERSEY v. GABRIEL M. BAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6121-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GABRIEL M. BAY,

Defendant-Appellant.

____________________________________

February 22, 2012

 

Submitted November 14, 2011 - Decided

Before Judges Ashrafi and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictments No. 09-07-0482, 09-08-1322, 09-08-1323, 09-

08-1324, 09-08-1325 and 09-08-1327.

 

James E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

 

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent

(Brian D. Gillet, Assistant Prosecutor,

of counsel and on the brief).

 

PER CURIAM

Defendant Gabriel Bay appeals from judgments of conviction following his guilty pleas to several indictments charging multiple burglaries. He alleges error in the trial court's denial of his motion to suppress his statements to the police and evidence obtained as a result of his confessions, and he contends his sentence is excessive. We affirm.

I.

The following facts were developed by testimony at the suppression hearing. Defendant was arrested on April 12, 2009, by New Brunswick detectives Mark Pappas and David Smith on a warrant for parole violation. Defendant was initially "uncooperative" and declined to make a statement to Pappas. Defendant testified he asked Pappas for a lawyer at that time; Pappas testified defendant did not ask for a lawyer.

At the time of arrest, defendant was the subject of a multi-county investigation of a string of burglaries that occurred from March 20 to mid-April 2009. Four days after the arrest, on April 16, 2009, North Brunswick detective Demetrius Timinarus and two other detectives, one from Edison, went to the Middlesex County jail to interview defendant about burglaries in their municipalities. Before the interview, corrections officer Jay Doda reviewed the interview intake form with defendant, which included a waiver of Miranda1 rights. Doda testified that defendant voluntarily signed the waiver. The three detectives testified that they also read defendant his Miranda rights, he understood them, and he voluntarily signed a waiver form. In the course of the interrogation, defendant made incriminating statements with respect to several burglaries. Defendant also agreed to go on a "ride-along" with the detectives during which he would indicate the locations he had burglarized. The detectives did not record the April 16 interrogation.

Five days after the jailhouse interrogation, on April 21, 2009, the same three detectives retrieved defendant from jail for the ride-along. The detectives first re-read defendant his Miranda rights, and he signed another waiver form. During the two-hour ride, the detectives drove defendant to the sites of twenty-three burglaries, and defendant indicated he committed seventeen of those burglaries, providing corroborating details of how he entered and what he took. Defendant also volunteered two additional burglary locations that the detectives had overlooked. The detectives did not record the ride-along interrogation.

Immediately after the ride-along, the detectives took defendant to the Edison police station, where they asked defendant to give a video-recorded statement. Defendant was given another Miranda waiver form, which he signed without reading. In his recorded statement, defendant discussed in detail the burglaries he had admitted during the April 16 jailhouse interrogation and the April 21 ride-along interrogation.

On April 24, 2009, Highland Park detective Ely Langrey interrogated defendant to discuss additional commercial burglaries in his municipality. Langrey testified that before the interview he read defendant his Miranda rights and defendant voluntarily signed a waiver form. However, defendant's signature indicates he waived his rights at 10:00 a.m., while the video equipment indicates the interrogation began at about 8:30 a.m. During the recorded interrogation, defendant made additional incriminating statements.

On April 27, 2009, East Brunswick detective Edward Connelly interrogated defendant at the jail to discuss burglaries of commercial properties in his jurisdiction. Before the interview, Connelly read defendant his Miranda rights, and defendant voluntarily signed the waiver form. During the recorded interrogation, defendant made more incriminating statements.

Subsequently, five Middlesex County indictments (one for each municipality) and one Somerset County indictment were returned by grand juries charging defendant on twenty-three third-degree counts of burglary, N.J.S.A. 2C:18-2, and fifteen other third- and fourth-degree offenses related to the burglaries.

Defendant moved to suppress his video-recorded statements made on April 21, 24, and 27, 2009. Judge DeVesa heard testimony from defendant and law enforcement witnesses and watched portions of the April 21 recording. He denied the motion to suppress in part because he found that defendant did not invoke his right to counsel at the time of arrest.

After the suppression motion was denied, a plea agreement was negotiated pursuant to which defendant agreed to plead guilty to eleven counts of third-degree burglary and the prosecutor agreed to drop the remaining twenty-seven charges and to recommend an aggregate sentence of twenty-five years imprisonment with a ten-year term of parole ineligibility. At sentencing, Judge DeVesa weighed the aggravating and mitigating factors, made findings on the record, and imposed sentences of ten2 and five years on several of the burglaries, aggregating to a total of twenty-five years imprisonment with ten years of parole ineligibility. As an accommodation to defendant, the judge granted 357 days of jail time credit on each individual count, thus reducing all sentences imposed by the time defendant had already served in custody.

II.

Defendant raises three issues on appeal:

Point I

 

DEFENDANT'S REQUEST FOR COUNSEL AT HIS INITIAL ARREST WAS NEVER HONORED AND HIS STATEMENTS THEREAFTER MUST BE SUPPRESSED.

 

Point II

 

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AS IT VIOLATES THE RULE IN STATE V. YARBOUGH.

 

Point III

 

THE CREDIT AFFORDED TO MR. BAY WAS A MATTER OF DISCRETION AND THE SENTENCE IS NOT ILLEGAL AND THE STATE'S APPEAL MUST BE DISMISSED.

Defendant's third point is moot and does not require discussion. The State originally appealed the granting of jail time credit against every count of conviction. In light of State v. Hernandez, 208 N.J. 24 (2011), however, the State has withdrawn its cross-appeal.

A.

Defendant contends his post-arrest statements should have been suppressed pursuant to the federal and State privileges against self-incrimination because he asked for a lawyer when arrested and was interrogated by the police without counsel.

We apply a limited standard of review on a motion to suppress evidence. State v. Robinson, 200 N.J. 1, 15 (2009). 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. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted); accord State v. Locurto, 157 N.J. 463, 474 (1999). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

We begin by reciting relevant principles of the right to counsel. "[I]f the accused 'indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.'" State v. Alston, 204 N.J. 614, 619-20 (2011) (quoting Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 707 (1966)). "[O]nce a request for counsel has been made, an interrogation may not continue until either counsel is made available or the suspect initiates further communication sufficient to waive the right to counsel." Id. at 620 (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378, 386 (1981)). A statement made while in custody is inadmissible unless preceded by a knowing, intelligent, and voluntary waiver of Miranda rights. State v. DiFrisco, 174 N.J. 195, 235 (2002), cert. denied, 537 U.S. 1220, 123 S. Ct. 1323, 154 L. Ed. 2d 1076 (2003). In New Jersey state prosecutions, the State must prove beyond a reasonable doubt that defendant made a valid waiver of his constitutional rights. State v. O'Neill, 193 N.J. 148, 168 n.12 (2007); State v. Presha, 163 N.J. 304, 313 (2000).

The invocation of the right to counsel "'need not be articulate, clear, or explicit . . . any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel.'" Alston, supra, 204 N.J. at 622 (quoting State v. Reed, 133 N.J. 237, 253 (1993)). "[A]n equivocal request for an attorney is to be interpreted in a light most favorable to the defendant." State v. Chew, 150 N.J. 30, 63 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overrled on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006). Our courts "utiliz[e] a totality of the circumstances framework for determining whether a particular defendant has invoked his or her rights" related to the privilege against self-incrimination through a "careful and searching review of all of the facts and circumstances surrounding any defendant's interrogation." State v. Diaz-Bridges, ___ N.J. ___, ___ (2012) (slip op. at 36).

Defendant argues the trial judge erred in accepting detective Pappas's testimony that defendant did not invoke his right to counsel when he was arrested. At the suppression hearing, Judge DeVesa made the following findings of fact with respect to the right to counsel and witness credibility:

[B]oth Detective Pappas and the defendant are somewhat credible. Frankly, what I find is that Detective Pappas . . . caused [defendant] to get insulted, . . . and I think that the defendant simply told him . . . I don't want to be bothered with you and I'm not talking to you.

 

. . . .

 

I do not believe that this encounter between Detective Pappas and the defendant can be construed as a clear indication of his right to remain silent and his right to counsel, but even if one were to conclude that that occurred and, again, I do not conclude that it occurred, I conclude that there was some remarks made by Detective Pappas to [defendant] and then he just indicated to Detective Pappas that he didn t want to speak to him because that's corroborated by the totality of the circumstances and what Detective Timinarus was told.

 

. . . .

 

[T]he State has . . . demonstrat[ed] to the Court that each time that the defendant was spoken to he was advised of his [Miranda] rights. . . . [E]ach time he was spoken to he understood what his rights were and he agreed to voluntarily speak to [the detectives] . . . .

The judge also noted that defendant contradicted himself on the witness stand, for example, stating that he did not know of the right to counsel when he signed the Miranda waiver forms on April 21, 24, and 27, and also stating that he invoked that right on April 16 and 21. Furthermore, defendant admitted he was high on drugs at the time of his arrest and interaction with Pappas, thus calling into question his accurate recollection of events on that date.

The trial court's finding that defendant did not ask for a lawyer is supported by sufficient credible evidence in the record of the suppression hearing. The testimony of detective Pappas was corroborated by detective Timinarus. Also, the voluntary nature of defendant's interactions with the detectives is corroborated by the totality of the circumstances. He formally waived his Miranda rights on four separate dates. He went on the ride-along after having several days to reconsider whether he should continue the dialogue with the detectives. During the ride-along, he volunteered information about two additional burglaries the police had overlooked and, when he indicated he did not commit six of the burglaries on the detectives' list, they did not pressure him to admit those as well. Where conflicting evidence must be resolved on the basis of witness credibility, as in this case, we must defer to the trial judge's "feel" for the case and credibility decisions. See Diaz-Bridges, supra, ___ N.J. at ___ (slip op. at 26-27).

Defendant also argues that the trial judge found he equivocally requested counsel, and therefore, the judge erred in failing to suppress his statements on the ground that the police had not clarified his intent. The trial court did not find an equivocal invocation of the right to counsel. The judge's findings differ from the facts of prior cases where an equivocal invocation of the right to counsel was found. E.g., Chew, supra, 150 N.J. at 63 (suspect asking mother to call his lawyer in police presence was sufficient to invoke right to counsel); State v. Elmore, 205 N.J. Super. 373, 380 (App. Div. 1985) (suspect telling mother on phone and in police presence that she was not allowed a lawyer was sufficient to invoke right to counsel); State v. Dickens, 192 N.J. Super. 290, 297-98 (App. Div. 1983) (suspect who agreed to cooperate but also stated that his statement to police must be approved by his attorney invoked the right to counsel), certif. denied, 97 N.J. 697 (1984). Here, the testimony of defendant and detective Pappas were in direct conflict, and the trial judge made a credibility decision in favor of the State.

In sum, we see no basis to disturb the trial court's finding that defendant did not invoke his right to counsel at the time of arrest, and we conclude his recorded statements were properly found to be admissible at trial.

B.

Defendant contends the court abused its discretion by imposing consecutive terms of imprisonment.

In sentencing, "trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005); see State v. Bieniek, 200 N.J. 601, 607-08 (2010). An appellate court does not "'substitute its judgment for that of the trial court.'" State v. Natale, 184 N.J. 458, 488-89 (2005) (quoting State v. Evers, 175 N.J. 355, 386 (2003)). Our review of sentencing decisions is limited to three functions:

(a) review sentences to determine if the legislative policies . . . were violated; (b) review the aggravating and mitigating factors . . . to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether . . . the application of the guidelines to the facts of this case make the sentence clearly unreasonable so as to shock the judicial conscience.

 

[Dalziel, supra, 182 N.J. at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Under N.J.S.A. 2C:44-5a, a sentencing court has discretionary authority to impose consecutive terms of imprisonment. To ensure uniformity and fairness, the Court in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), provided guidelines for determining when sentences should be imposed consecutively.3 The Court, subsequently, refined the analysis under the Yarbough guidelines to "concentrate on such considerations as the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Baylass, 114 N.J. 169, 180 (1989); accord State v. Carey, 168 N.J. 413, 423 (2001).

Here, the trial court followed these guidelines in imposing consecutive sentences that conformed to the terms of the plea agreement. The court imposed an aggregate sentence of twenty-five years imprisonment with a ten-year term of parole ineligibility. Defendant was facing trial on six indictments in two counties containing a total of twenty-three counts of burglary and fifteen counts of related offenses. He pleaded guilty to eleven burglary charges. For each Middlesex indictment, defendant pleaded guilty to two burglary charges and was sentenced to concurrent terms of five years imprisonment with two years of parole ineligibility. The five-year term of each Middlesex indictment was to be served consecutively to the other Middlesex indictments. For the Somerset indictment, defendant pleaded guilty to one count of burglary and was sentenced to an extended term of ten years imprisonment with five years of parole ineligibility, to be served concurrently with the Middlesex indictments. In imposing consecutive sentences, the court noted that defendant's many burglaries were committed on different dates, at different locations, and against different victims.

Defendant relies on the sixth Yarbough factor to argue his sentence exceeds the sum of the longest terms that could have been imposed for his two most serious offenses, i.e. fifteen years. The sixth Yarbough factor, however, was abrogated in 1993 when the Legislature amended N.J.S.A. 2C:44-5.4 See State v. Gallagher, 286 N.J. Super. 1, 22 n.1 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996).

Defendant also relies upon State v. Miller, 108 N.J. 112, 122 (1987), for the proposition that "factors relied on to sentence a defendant to the maximum term for each offense should not be used again to justify imposing those sentences consecutively." Miller involved "closely related" offenses arising out of a single course of criminal conduct over a weekend against one victim. Id. at 114, 122. Here, the offenses were not closely related in time or place. They arose from almost two dozen separate, albeit similar, criminal acts over a one-month period against numerous victims. Defendant burglarized a large number of small businesses in New Brunswick, North Brunswick, Edison, Highland Park, East Brunswick, and Franklin Township. Yarbough and its progeny indicate it is appropriate to impose consecutive terms when there are separate criminal acts occurring at different times or places and harming multiple victims.

The fact that people were not physically injured or threatened does not mean there were no human victims of defendant's crimes. The burglaries harmed people who owned the businesses or were otherwise dependent on them. "Consecutive sentencing may be an appropriate means to protect society from those who are unwilling to lead a productive life and resort to criminal activity in furtherance of their anti-societal lifestyle." State v. Mosch, 214 N.J. Super. 457, 464 (App. Div. 1986), certif. denied, 107 N.J. 131 (1987).

In sum, we find no abuse of discretion in the court's decision to impose consecutive terms aggregating to an overall sentence in conformity with defendant's plea agreement.

A

ffirmed.

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

2 An extended term sentence was imposed on the Somerset County indictment under N.J.S.A. 2C:44-3a.

3 The Yarbough guidelines are:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;
 

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
 

(d) any of the crimes involved multiple victims;
 

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

[Yarbough, supra, 100 N.J. at 643-44.]

4 The amended language of N.J.S.A. 2C:44-5a provides: "There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses."