STATE OF NEW JERSEY v. RALPH REEVEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0265-04T40265-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RALPH REEVEY,

Defendant-Appellant.

_________________________________

 

Submitted September 28, 2005 - Decided January 26, 2006

Before Judges Wefing and Wecker.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

03-07-1415-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C. Kazer,

Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Joie Piderit, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

After a jury trial, defendant, Ralph Reevey, was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two). Judge Francis P. DeStefano denied the State's motion to sentence defendant to an extended term as a persistent offender. After merging the possession charge (count two) with the robbery charge (count one), and finding aggravating factors 3, 6, and 9 and no mitigating factors, the judge imposed an eighteen-year sentence, eighty-five percent to be served without eligibility for parole under the No Early Release Act, N.J.S.A. 2C:43-7.2.

The victim, Rene Carmona, worked as a cook at Angelo's Pizzeria in Matawan, New Jersey. A recent immigrant from Mexico, Carmona worked about fifty hours each week to earn money to send to his family in Mexico. When the restaurant closed shortly after 9:00 p.m. on June 3, 2003, Carmona began walking home with a bottle of iced tea in his hand and $1,000 in his wallet, money he intended to send to his mother in Mexico.

On his way home, Carmona was confronted by a group of seven or eight men. Upon hearing one of the men say "Get him! Get him!" Carmona broke into a run. The group caught up to him and surrounded him. One person demanded money from Carmona, but he responded that he had none.

Defendant was among the group of men who surrounded Carmona; when Carmona said that he had no money, defendant punched him in the face. Next, defendant grabbed the glass bottle that Carmona was holding; swinging it like a club, he struck Carmona in the head before tossing the bottle away. Two men restrained Carmona while another went through his pocket, finding and taking his wallet. Finally, defendant threatened Carmona that he would hit him again if he did not go home. Carmona was subsequently taken to a hospital, where seven staples were needed to close a gash in his head.

Defendant was arrested for his role in the robbery on June 5, 2003. He was taken to police headquarters in Matawan, where he was advised of his Miranda rights by Sergeant Ben Smith of the Matawan Police Department. Defendant signed a form acknowledging that he had been told of his Miranda rights, and he signed again to indicate that he was knowingly and voluntarily waiving those rights. Defendant then denied his involvement in the robbery of Carmona, at which point he was taken to a holding cell.

After some time in the holding cell, as Sergeant Smith was walking by the cell, defendant called to him, saying that he would like to talk with him. Sergeant Smith then brought defendant out of the cell and back to his office. Detective Gallo joined Sergeant Smith and defendant in Smith's office. Sergeant Smith reminded defendant of his right to remain silent, but defendant confessed his involvement in the robbery. Thereafter, defendant gave a formal written statement describing his role in the robbery. Finally, defendant was taken to another room, where he gave a videotaped statement.

On appeal, defendant presents the following arguments:

POINT I

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE ORAL INCULPATORY STATEMENT MADE TO SERGEANT SMITH SHOULD HAVE BEEN SUPPRESSED.

POINT II

SERGEANT SMITH'S TESTIMONY THAT HE "MET" THE DEFENDANT "PREVIOUSLY" CONSTITUTED PLAIN ERROR BECAUSE IT WAS NOT RELEVANT TO ANY MATERIAL ISSUE, EXCEEDED THE TRIAL COURT'S CAUTIONARY INSTRUCTIONS, AND SUGGESTED THAT THE DEFENDANT HAD A PRIOR CRIMINAL RECORD. (NOT RAISED BELOW).

POINT III

THE EIGHTEEN (18) YEAR BASE CUSTODIAL SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR ARMED ROBBERY ON COUNT ONE IS MANIFESTLY EXCESSIVE AND UNCONSTITUTIONAL.

(A)

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A SENTENCE IN EXCESS OF THE PRESUMPTIVE TERM FOR A CRIME OF THE FIRST DEGREE.

(B)

IMPOSITION OF A SENTENCE IN EXCESS OF THE PRESUMPTIVE SENTENCE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS AND SIXTH AMENDMENT RIGHT TO A JURY TRIAL AS DETERMINED BY THE UNITED STATES SUPREME COURT IN BLAKELY V. WASHINGTON.

We have carefully reviewed the record and the briefs and find little merit in defendant's arguments. See R. 2:11-3(e)(2).

We reject defendant's contentions that his oral, inculpatory statement to Sergeant Smith should have been suppressed, that Sergeant Smith's testimony that he had previously met defendant suggested a prior criminal record, and that his sentence above the then applicable presumptive term for a first-degree crime is excessive and violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We therefore affirm defendant's convictions and his sentence. We add only the following comments.

In a Miranda hearing, the evidence established that after proper warnings, defendant denied any involvement in the crime, and questioning stopped. He was placed in a cell in the police station, and over the next hour, because of the layout of the facility, Sergeant Smith walked by the cell several times. Defendant then asked to speak with the officer, who took him back to his office but reminded defendant that he had the right to remain silent. At that point, defendant admitted his role in the robbery. Judge DeStefano found all of defendant's statements oral, written, and videotaped to be voluntary.

Defendant's contentions with respect to his statements are without merit. While the officer did not re-administer the entire Miranda warnings, this was not a re-interrogation initiated by police, but a new statement initiated by defendant. Moreover, defendant's signed and corrected written statement, and his subsequent videotaped statement, support the judge's findings that defendant's oral statement was voluntary and not a product of police interrogation.

Defendant raises, as plain error, an alleged Bankston violation. The facts here differ substantially from those in Bankston. The detective's testimony that he had "dealt with" defendant before, and that he knew defendant and defendant knew him was relevant to explain how the victim's description led him to suspect defendant, and did not unfairly prejudice defendant by implying that he had been involved in previous criminal activity. While the officer's direct testimony could have been better circumscribed, especially in light of the judge's advance caution to counsel, nonetheless, the State was entitled to the officer's testimony that he was familiar with defendant's appearance, thus explaining how he connected the victim's description with defendant. We do not find the officer's testimony reversible error.

 
With respect to defendant's sentence, we recognize that the Supreme Court in State v. Natale, 184 N.J. 458, 481 (2005), held that Blakely applies to New Jersey sentencing law, and that a defendant may not be sentenced to a term longer than the maximum which the jury's verdict (or defendant's admissions) allows. The only exception applies to the sentencing judge's consideration of prior convictions. Blakely, 542 U.S. at 301, 124 S. Ct. at 2536, 159 L. Ed. 2d at 412. But neither Blakely nor Natale are implicated in defendant's sentence. The jury's verdict, along with defendant's undisputed prior record, allowed the judge the discretion to impose an extended term sentence between twenty years and life. See N.J.S.A. 2C:43-7a(2). At the time defendant was sentenced, the presumptive extended term for a first-degree robbery was fifty years. N.J.S.A. 2C:44-1f(1). Since defendant's eighteen-year sentence was well below the fifty-year presumptive extended term, we find no Blakely violation in defendant's sentence.

Affirmed.

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

State v. Bankston, 63 N.J. 263 (1973) (police officer's testimony that he acted based on information he had received from an informer created "the inescapable inference . . . that the informer had given information that . . . defendant was committing a crime"). Id. at 271.

Natale, of course, has eliminated presumptive terms from the Code. Natale, 184 N.J. at 466.

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A-0265-04T4

January 26, 2006