STATE OF NEW JERSEY v. RYNE M. USHER-SWIFT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5072-04T45072-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RYNE M. USHER-SWIFT,

Defendant-Appellant.

____________________________________

 

Submitted February 28, 2006 - Decided March 21, 2006

Before Judges Skillman, Axelrad and Payne.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-06-0766.

Steven M. Gilson, attorney for appellant.

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

After the trial court denied defendant's pretrial motion to suppress inculpatory statements he had made to the police, a jury found him guilty of two counts of first-degree robbery, in violation of N.J.S.A. 2C:15-1; two counts of conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree kidnapping, in violation of N.J.S.A. 2C:13-1(b)(1); carjacking, in violation of N.J.S.A. 2C:15-2(a)(2); conspiracy to commit carjacking, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-2(a)(2); two counts of theft, in violation N.J.S.A. 2C:20-2(b)(3); and terroristic threats, in violation of N.J.S.A. 2C:12-3. The trial court sentenced defendant to a fifteen-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive twenty-year term of imprisonment for carjacking, also subject to the 85% period of parole ineligibility mandated by NERA. In addition, the court imposed a concurrent fifteen-year period of imprisonment, subject to the 85% period of parole ineligibility mandated by NERA, for the other robbery conviction, and a concurrent three-year term for terroristic threats. Thus, defendant's aggregate sentence is thirty-five years imprisonment, subject to an 85% period of NERA parole ineligibility. In addition, the court imposed separate five-year periods of parole supervision with respect to each of defendant's NERA convictions, for an aggregate fifteen year period of parole supervision. The court merged defendant's other convictions.

On August 20, 2003, at around 11:00 p.m., Sheldon Levy exited the Pit Stop Pub in Roxbury Township. As Levy approached his van parked in a lot near the pub, he observed a man run towards the back of his vehicle and another man run around him, meeting him on the driver's side. He described the men as black or tanned, with broken accents; one was wearing a bandana. When Levy opened the door to the van, one of the men pointed a handgun at him and informed him it was a "stick up." Levy then tossed his wallet, which contained $300, keys, and cellular phone out the window. After the assailants picked up his belongings and fled, Levy contacted the police.

Approximately three hours after Levy was robbed, Katherine Thomas left her boyfriend's house in the Flanders section of Roxbury. Before heading to her home, she decided to drive around for while to relax. As she approached an intersection, she observed two men standing on an island near the intersection. One of them jumped out in front of Thomas' vehicle, causing her to slow down and stop. Thomas then heard one of the individuals tapping on her window and saw a gun pointed at her. The assailant holding the gun opened the door, entered the vehicle, and sat next to Thomas. The other, whom she identified as defendant, entered the vehicle and sat behind her. She explained that the man sitting beside her was wearing a bandana to cover his face. She also testified that the men referred to one another as "Jit and Juve or Juva" and did not speak English, but "some sort of Creole language." They ordered her to drive them to East Orange, which she did, arriving at approximately 2:45 a.m. During the ride, the men ordered Thomas to withdraw money from an ATM, which she also did, and stole her cellular phone and $100 from her wallet. The men finally exited the car at a gas station, threatened to kill Thomas if she informed the police, and walked away. Thomas then drove home, woke up her parents, and contacted the police.

At the Miranda hearing, Detectives Sabino Zarro and Kevin Smith of the Roxbury Police Department testified that on September 16, 2006, they traveled to the Montclair Police Department where defendant was being held. Detective Smith read the defendant his Miranda rights, and defendant indicated he understood them. The detectives then asked the defendant whether he would be willing to discuss the robberies that had occurred in Roxbury on August 20, 2003. Defendant agreed, but initially claimed he was not involved.

Detective Zarro testified that defendant, who had a Creole accent, told him during the interview that his nickname was Juve. The detectives showed defendant a fingerprint lifted from the scene and told him his fingerprints would be compared to that fingerprint. The detectives then outlined the evidence they had gathered indicating that defendant was one of the perpetrators of the robberies. After hearing this presentation, defendant "dropped his head and just had a blank look on his face."

At this point, the detectives took defendant from the holding cell where they had started talking to him to an interrogation room. One of the detectives again read defendant Miranda warnings from a custodial notification of rights form. Defendant refused to initial the form, but confirmed orally that he understood his rights. Defendant stated that he would continue speaking with the detectives but he did not want to be taped, and he refused to give a written statement.

Thereafter, defendant confessed to his involvement in the robberies. He stated that he and his cousin, Jason Thompson, took a train from East Orange to the Roxbury area to meet a female acquaintance. However, when they arrived in Roxbury, they were unable to contact her. Because the trains were no longer running that night, defendant and Thompson needed a ride back to East Orange. Consequently, they began walking toward the Pit Stop Pub, where they observed Levy walking to his van, and attacked him for the purpose of having him drive them back to East Orange. Because defendant and Thompson perceived that Levy was intoxicated, they decided that they did not want to drive with him. Therefore, after robbing him, they fled to the train station and hid in the bushes.

Once police activity died down, the two observed Thomas' vehicle entering an intersection. They approached the vehicle, pointed a gun at the driver, told her to unlock the doors, and got into the car when she complied. They then forced her to drive them to the East Orange area and to withdraw $20 from an ATM along the way. When the vehicle arrived in East Orange, they got out of the car.

On September 17, 2003, the police found Levy's wallet and keys on a path near the Roxbury train station where defendant told Detectives Zarro and Smith the items had been dropped after he and Thompson robbed Levy. The latent fingerprints found on Levy's van were confirmed to be Thompson's.

Defendant testified that he is a citizen of Belize and received thirteen years of education. He testified that he never saw the Miranda waiver form allegedly read to him and that he never made any statements at all to Detectives Zarro and Smith other than giving them his name.

At trial, both Levy and Thomas identified defendant as one of the two men who had robbed them. They also both identified a silver air gun found in defendant's possession as being similar to the one wielded in the robberies.

On appeal, defendant presents the following arguments:

I. DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HIS CONFESSION SHOULD HAVE BEEN DEEMED INADMISSIBLE PURSUANT TO THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, DUE TO THE STATE'S FAILURE TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT KNOWINGLY AND INTELLIGENTLY WAIVED HIS MIRANDA RIGHTS.

II. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING; THEREFORE, HIS SENTENCE MUST BE VACATED AND THIS MATTER MUST BE REMANDED FOR RESENTENCING. (Not Raised Below)

We reject defendant's first argument and affirm the denial of the motion to suppress his inculpatory statements substantially for the reasons set forth in the trial court's oral opinion of February 2, 2005. The fact that defendant is a native of Belize who had been in this country for only a short period of time before giving his inculpatory statements did not prevent him from understanding the Miranda warnings administered by Detectives Zarro and Smith and voluntarily waiving his right to an attorney and his right to remain silent. See State v. Homdziuk, 369 N.J. Super. 279, 289-91 (App. Div. 2004). Defendant's refusal to sign the Miranda warnings form did not indicate he was unable to understand those warnings or constitute an invocation of his right to remain silent. See State v. Adams, 127 N.J. 438, 446-50 (1992).

However, we conclude that defendant must be resentenced because the trial court improperly identified as an aggravating factor in sentencing defendant for both the Levy robbery and the Thomas carjacking that "[t]he defendant, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a stolen motor vehicle." N.J.S.A. 2C:44-1(a)(13).

In imposing sentence, the court stated:

And I will take into account aggravating factor number thirteen[,] as suggested by the prosecutor[,] that while the effort was made to rob Mr. Levy and that he reported [the robbery,] it was clear that he and Mr. Thompson were able to avoid detection at that point in time. And then in order to get out of this area used and were in possession of this motor vehicle, the carjacking of Miss Thomas. And certainly in that context aggravating factor number thirteen has an impact.

Defendant and Thompson went to the Roxbury area by train and were not in possession of a stolen vehicle when they robbed Levy. Moreover, while they eventually came into possession of Thomas' car, this did not occur until more than three hours later, after they had successfully fled from the scene of the Levy robbery to the area of the train station. Therefore, we conclude that they were not in "immediate flight" from the Levy robbery when they came into possession of Thomas' motor vehicle and thus the court improperly relied upon N.J.S.A. 2C:44-1(a)(13) as an aggravating factor in sentencing defendant for the Levy robbery.

One of the elements of carjacking is "an unlawful taking of a motor vehicle" or "an attempt to commit an unlawful taking of a motor vehicle." N.J.S.A. 2C:15-2. Therefore, the identification of "possession of a stolen motor vehicle" under N.J.S.A. 2C:44-1(a)(13) as an aggravating factor in sentencing defendant for the Thomas carjacking constituted impermissible double counting of this sentencing factor. See State v. Henry, 323 N.J. Super. 157, 165 (App. Div. 1999).

In resentencing defendant, the trial court should keep in mind that even in a case where consecutive sentences may be appropriate, "[t]he [sentencing court's] focus should be on the fairness of the overall sentence[.]" State v. Miller, 108 N.J. 112, 122 (1987). Therefore, the court should consider the aggregate term that will result from the imposition of consecutive sentences in determining the length of each component sentence.

In light of our conclusion that defendant must be resentenced because the trial court improperly considered his possession of a stolen motor vehicle as an aggravating sentencing factor, there is no need to address defendant's argument that he received ineffective assistance of counsel because his trial counsel failed to present any argument relating to sentencing. We assume that defense counsel will present such argument as may be appropriate on defendant's behalf at the resentencing.

Finally, although we do not decide the issue, we question whether the imposition of consecutive periods of parole supervision conforms with N.J.S.A. 2C:43-7.2(c). See State v. Johnson, 182 N.J. 232, 240 n.2 (2005). Therefore, the trial court should address this issue at defendant's resentencing.

 
Accordingly, we affirm defendant's convictions but vacate the sentence and remand for resentencing in conformity with this opinion.

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A-5072-04T4

March 21, 2006