STATE OF NEW JERSEY v. LAWRENCE SORBINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAWRENCE SORBINO,

Defendant-Appellant.

______________________________

February 5, 2016

Submitted January 5, 2016 Decided

Before Judges Reisner and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-10-01603.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lawrence Sorbino appeals from a September 30, 2013 judgement of conviction after the entry of a guilty plea. He asserts that statements he made to police on July 15, 2010, should have been suppressed. We affirm.

We discern the following facts from the record of the suppression hearing. Defendant was the supervisor of security for the New Brunswick Parking Authority's (NBPA) parking lots and garages. In May 2010, the Middlesex County Prosecutor's Office initiated an investigation after receiving information that NBPA security guards were taking money from patrons at exit gates in NBPA garages, pocketing the money, and using their own employee badges to allow patrons to exit the garages. Defendant, as one of the supervisors of security, was suspected of participating in this scheme by allowing the guards to keep money that patrons paid to exit the garage, and taking a portion of the money that the guards collected.

On June 23, 2010, during the investigation, defendant contacted the Prosecutor's Office and expressed his desire to discuss the investigation. Officer Heck and defendant met there and discussed certain details of the investigation. The interview was taped.

A second interview occurred on July 15, 2010. Defendant was taken to a small, windowless conference room where he met with Officer Heck, and Lieutenant Delbagno of the Prosecutor's Office. Heck testified that the purpose of the meeting was to clarify certain operations procedures that defendant employed as a supervisor of security for the NBPA, and to clarify defendant's knowledge of other employees' activities at the Parking Authority. Heck testified that he had no intention of taking a second taped statement from defendant that day.

Defendant nevertheless asked to make a formal statement after speaking with the officers for approximately an hour. Officer Heck testified that defendant explained that "there is information that he wanted to get off his chest[.]" Officer Heck also testified that he told defendant he was free to leave at any time, to which defendant replied, "if I'm a smart guy, I would probably request an attorney, but I don't want one, I want to talk to you." Officer Heck then testified that defendant confessed to his role in the scheme and implicated himself while being recorded.

At the hearing, defendant offered competing testimony. Defendant asserted that he did not know he was entitled to an attorney or that he was free to leave. Defendant also testified that he felt that he had to give a recorded confession to be permitted to leave. Defendant left the Prosecutor's Office and was arrested one week later, on July 22, 2010.

After hearing the parties testify to the facts described above, the trial judge denied defendant's motion to suppress. The trial judge specifically found that defendant went to the Prosecutor's Office of his own volition, and that Officer Heck's testimony was credible. The trial judge found that Heck told defendant that he was not under arrest and that he was free to leave. The trial judge found that defendant was not credible, and thus found that defendant was not in custody for Miranda1 purposes at the time he confessed. The trial judge also based his findings upon a recording that Officer Heck conducted wherein defendant stated his understanding that he was free to leave at any time. Accordingly, the trial judge denied defendant's suppression motion on the basis that his statements were not made in a custodial and interrogative setting, and therefore the requirements of Miranda did not apply.

We are obliged to conduct a "searching and critical" review when reviewing a trial court's legal reasoning supporting its denial of a motion to suppress confession evidence on the basis of Miranda. See State v. Patton, 362 N.J. Super. 16, 43 (App. Div.), certif. denied, 178 N.J. 35 (2003) (citing State v. Pickles, 46 N.J. 542, 577 (1966)). In reviewing a trial court's factual conclusions, however, we "generally defer to the fact-findings of the trial court when they are supported by sufficient credible evidence in the record." State v. Puryear, 441 N.J. Super. 280, 293 (App. Div. 2015) (citations omitted). Such deference is especially due when a trial judge's findings "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Ibid. (citing State v. Davila, 203 N.J. 97, 109-10 (2010)).

Defendant asserts that he was not properly Mirandized before being subject to custodial interrogation. We disagree. Miranda v. Arizona, supra, provides that criminal suspects subject to police interrogation must be provided information pertaining to their Fifth Amendment rights before police may elicit incriminating evidence from them. 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. Without procedural safeguards in place to ensure that an accused speaks to police with knowledge of his or her Fifth Amendment rights, any statement obtained during such an interrogation must be suppressed. Id. at 478-79, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726.

The requirement of Miranda warnings is not triggered, however, until an accused is in "custody" for Miranda purposes. State v. Nyhammer, 197 N.J. 383, 406 (citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977)), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed 2d (2009). Without being in custody, an accused has no Miranda protection because there is no police-dominated atmosphere, which forms the basis for the United States Supreme Court's Miranda jurisprudence. Ibid. (citing Beckwith v. United States, 425 U.S. 341, 346-47, 96 S. Ct. 1612, 1616, 48 L. Ed. 2d 1, 7-8 (1976)).

A determination of custody "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." State v. O'Neal, 190 N.J. 601, 615-16 (2007) (citing Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994)). Although under New Jersey law, custody is not limited to holding an accused individual at a police station, we do consider "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, the status of the suspect, and other such factors." State v. P.Z., 152 N.J. 86, 103 (1994). "Other such factors" are those that our Supreme Court has included in the "totality of the circumstances" analysis, and includes (but is not necessarily limited to): a defendant's "age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved." Nyhammer, supra, 197 N.J. at 402 (citing State v. Presha, 163 N.J. 304, 313 (2000)).

In this case, defendant was not in custody of the Middlesex County Prosecutor's Office at the time he made his confession. Although he was inside a police station and was being interviewed by the Middlesex County Prosecutor's Office, presence in a police station is not enough to establish custody for Miranda purposes. Mathiason, supra, 429 U.S. at 495, 97 S. Ct. at 714, 50 L. Ed. 2d at 719. Defendant came to the Prosecutor's Office of his own free will in order to answer questions about the investigation. He was informed that he could leave at any time, and was not asked to discuss his own role in the scheme at the NBPA garages. Defendant also acknowledged that he could have asked for an attorney, but consciously chose not to do so. The judge found that there was no compulsion amounting to custody for Miranda purposes here, and we decline to disturb that finding.

Defendant also argues that, because the Prosecutor's Office viewed him as a possible suspect at the time the investigation was made, and because he was a possible focus of the investigation, he should have nevertheless received Miranda warnings. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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