STATE OF NEW JERSEY v. DANIEL GATSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5009-04T45009-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL GATSON,

Defendant-Appellant.

_________________________________________________

 

Submitted September 11, 2007 - Decided November 1, 2007

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

01-11-2672.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Steven M. Gilson,

Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Daniel Gatson, was convicted by a jury on two counts of third-degree receipt of stolen property, N.J.S.A. 2C:20-7. Since one stolen item was a .357 magnum handgun, and defendant had a qualifying felony record, defendant was also charged with a violation of N.J.S.A. 2C:39-7, which declares it to be a second-degree crime for certain persons to possess or control a firearm. Following the return of the jury's verdict on the receipt of stolen property charges defendant, having waived consideration by the jury of the "certain persons" charge, was convicted by the trial judge of this additional crime. He has appealed. Defendant also claims as excessive his extended-term sentence of fifteen years with a fifty-percent parole disqualifier on the certain persons offense, a concurrent five-year term on his conviction for receipt of the stolen gun, and a consecutive five-year term on the other receipt of stolen property charge for which he was convicted, which involved cash.

On appeal, counsel raises the following issues on defendant's behalf:

POINT I

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE LOWER COURT FAILED TO PROVIDE A LIMITING INSTRUCTION REGARDING THE STATUTORY PRESUMPTION AS TO THE RECEIVING STOLEN PROPERTY CHARGES.

POINT II

DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND CONSTITUTED A MISCARRIAGE OF JUSTICE UNDER THE LAW.

POINT III

DEFENDANT'S SENTENCE WAS EXCESSIVE AND MUST BE VACATED.

(Partially Raised Below)

A. The Lower Court Failed To Recognize Appropriate Mitigating Factors.

(Partially Raised Below)

B. The Sentence In Part Exceeded The Presumptive Statutory Term And Was Based On The Lower Court's Finding Of Aggravating Factors Other Than A Prior Criminal Conviction.

(Not Raised Below)

C. The Lower Court Abused Its Discretion By Imposing An Extended Term Or, In The Alternative, The Extended Term Must Be Vacated And Remanded For Resentencing Pursuant to State v. Pierce.

(Partially Raised Below)

D. The Lower Court Abused Its Discretion By Imposing A Consecutive Term.

In a supplemental brief, counsel also argues:

DEFENDANT'S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED, AND THEREFORE HIS CONVICTIONS MUST BE REVERSED, BECAUSE THERE DID NOT EXIST PROBABLE CAUSE TO JUSTIFY ISSUANCE OF THE SEARCH AND WIRETAP WARRANTS; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING SO AS TO DETERMINE WHETHER THE WARRANTS WERE PROCURED BY WAY OF WILFULLY FALSE STATEMENTS OR MADE IN RECKLESS DISREGARD OF THE TRUTH.

Finally, in a pro se brief, defendant argues:

POINT I

DEFENDANT'S CONVICTIONS MUST BE REVERSED, BECAUSE THE SUPERIOR COURT JUDGE WHO SIGNED THE WIRETAP WARRANTS LACKED STATUTORY AUTHORITY TO ISSUE THE ORDERS.

(Partially Raised Below)

POINT II

THE WIRETAP WARRANT AFFIDAVITS FAILED TO SATISFY 18 U.S.C.A. 2518(1)(b) AND 2A:156A-10, BECAUSE IT FAILS TO SET FORTH PROBABLE CAUSE TO BELIEVE THAT PARTICULAR CONVERSATIONS CONCERNING THE TARGET OFFENSES WILL BE INTERCEPTED.

(Partially Raised Below)

POINT III

FULL AND COMPLETE STATEMENTS AS TO WHETHER OR NOT OTHER INVESTIGATIVE PROCEDURES HAVE BEEN TRIED AND FAILED OR WHY THEY REASONABLY APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED OR TO BE TOO DANGEROUS, AS REQUIRED BY 18 U.S.C.A. 2518(1)(c) AND 2A:156A-9(6).

(Not Raised Below)

POINT IV

THE WIRETAP APPLICATION FAILED TO COMPLY WITH 18 U.S.C.A. 2518(1)(e) AND 2A:156A-9(e).

(Not Raised Below)

POINT V

THE AFFIDAVIT OF DET. CHRISTOPHER J. SHEA SUPPORTING THE SEARCH WARRANTS OF THE RESIDENCES OF DANIEL GATSON, ROBIN TREADVANCE, [AND] IVA GATSON, FAILED TO ESTABLISH PROBABLE CAUSE THAT A CRIME WAS COMMITTED BY THE SAID INDIVIDUALS OR THAT A CRIME WAS BEING COMMITTED AT THEIR RESIDENCES.

(Partially Raised Below)

POINT VI

"STALENESS" FOR FACTS/OR INFORMATION SUPPORTING THE ISSUANCE OF A WIRETAP OR SEARCH WARRANT SHOULD BE SUPPRESSED.

(Raised Below)

POINT VII

THE DEFENDANT'S ALLEGE[D] POST ARREST STATEMENT[] "GET ME THE SHORTS THAT ARE ON MY BEDROOM FLOOR BETWEEN THE BED AND THE BATHROOM," WERE MADE INVOLUNTARILY AND WITHOUT A KNOWING, WILLING, AND VOLUNTARY WAIVER OF HIS CONSTITUTIONAL RIGHTS GUARANTEED UNDER MIRANDA.

(Partially Raised)

POINT VIII

THE SEARCH WAS CLEARLY "UNREASONABLE" UNDER THE FOURTH AMENDMENT.

POINT IX

THE ALLEGED INFORMATION CAPT. RONALD THORNBURG AND DET. SERGEANT CHRISTOPHER SHEA RECEIVED FROM THEIR ALLEGED CONFIDENTIAL INFORMERS W[AS] UNRELIABLE AND UNTRUSTWORTHY.

(Partially Raised)

POINT X

THE AFFIDAVITS SUBMITTED IN SUPPORT OF THE SEARCH WARRANTS CONTAINED RECKLESS AND/OR INTENTIONAL MISSTATEMENTS OF MATERIAL FACT REQUIRING THE SUPPRESSION OF THE FRUITS OF THE SEARCHES.

After a review of the record and the arguments presented by and on behalf of defendant in light of controlling law, we affirm his convictions and remand the matter for resentencing.

The record on appeal discloses that defendant was a leader of a residential burglary ring operating, commencing in 1999, with apparently great success in Somerset, Morris, Monmouth, and Bergen Counties. Evidence against defendant was gathered from an extensive multi-year law enforcement investigation, involving numerous police departments and prosecutorial employees who combined in a task force to address the burglaries; three informants, two of whom were confidential; various records subpoenas; and wiretaps on various cell phones belonging to or used by defendant. That evidence led the police to believe that defendant was using his grandmother, Iva Gatson, as a front, and his home, as well as the home of defendant's aunt, Robin Treadvance, to stash some of the proceeds of the burglaries.

A search warrant directed to the Treadvance home led to the discovery of cash, in excess of $250,000, that Robin Treadvance stated belonged to defendant. Among the cash were amounts, wrapped in guest receipts, that were identified as having been stolen from the Alpine home of John and Martha Arvanitis, restaurant owners. A search of defendant's home revealed a stolen .357 magnum handgun, secreted in the box springs of defendant's bed, that was identified as the property of Dr. Angelo Calabrese of Pine Brook, stolen on December 7, 2000, as well as jewelry in a bag on top of the refrigerator that was identified as the property of Liane Abad of Alpine, whose home had been burglarized on April 9, 2001. Although defendant was charged with the theft of the jewelry, he was acquitted of that charge. Additionally, although defendant had been charged with a second-degree crime in connection with the money belonging to the Arvanitises, the jury found him guilty only of a third-degree offense. A suppression motion, filed before trial, was denied, as was defendant's motion for a new trial, filed after the return of the jury's verdict.

I.

N.J.S.A. 2C:30-7b codifies several presumptions that may arise with respect to a defendant's knowledge that items in his possession were stolen. In relevant part, it provides:

b. Presumption of knowledge. The requisite knowledge or belief [that an item has been stolen] is presumed in the case of a person who:

(1) Is found in possession or control of two or more items of property stolen on two or more separate occasions; or

(2) Has received stolen property in another transaction within the year preceding the transaction charged.

In this case, the State sought to utilize the first statutory presumption, claiming its applicability as the result of evidence of defendant's actual or constructive possession of the stolen gun, jewelry and money that were the subjects of the indictment under which defendant was being tried. The defense claimed that, if the presumption were to be utilized, the judge was required to give the limiting instruction on the use of evidence that is required when evidence of other crimes is introduced pursuant to N.J.R.E. 404(b). See State v. Marrero, 148 N.J. 469, 495 (1997); State v. Cofield, 127 N.J. 328, 340-41 (1992); State v. Stevens, 115 N.J. 289, 304 (1989). Pursuant to that precedent, evidence of prior bad acts may not be utilized to prove that the defendant has a disposition to do wrong and therefore must be guilty of the charged offenses, and the jury must be made aware of this evidentiary bar, as well as of the permissible uses for the evidence, in this case, to demonstrate knowledge or belief.

The trial judge found the N.J.R.E. 404(b) instruction applicable to other crimes unnecessary, and instead instructed the jury, with respect to each count of receipt of stolen property:

You may infer that the defendant knew that the [handgun, jewelry, or cash, as applicable] was stolen or believed that it was stolen if you find that defendant was found in possess[ion] or control of two or more items of property stolen on two or more separate occasions.

As he did at trial, on appeal, defendant claims that the jury should have been instructed that it could use the evidence only to support the inference of knowledge in accordance with N.J.R.E. 404(b), relying as support for that position upon State v. Humphrey, 183 N.J. Super. 580, 585 (Law Div. 1982), aff'd on other grounds, 209 N.J. Super. 152 (App. Div. 1986), a decision construing the presumption applicable to prior receipt of stolen property set forth in N.J.S.A. 2C:20-7b(2), and requiring the instruction that defendant has claimed was lacking in this case.

We agree with the trial judge that Humphrey is inapplicable to the present circumstances. Here, defendant was charged in one indictment with the receipt of property a gun, jewelry, and cash stolen, respectively, on three separate dates from three separate homes. Evidence at trial of the receipt of the items was thus relevant both to issues of guilt and knowledge. In this circumstance, the instruction to the jury identified in Humphrey as required when the different presumption of N.J.S.A. 2C:20-7b(2) is invoked would not have accurately reflected the State's proper use of the evidence, and would have served merely to confuse the jury.

Our review of the verdict in this matter satisfies us that the jury was aware of the permissive nature of the inference arising from the possession of the multiple stolen items, and did not use the evidence to reach the blanket conclusion that defendant, an allegedly "bad person," had committed the three stolen-property crimes. This conclusion is supported by the fact that defendant was convicted of receipt of the stolen gun and cash, but he was acquitted of receipt of the stolen jewelry that, although found in defendant's house, was located in a common area accessible to the house's other resident. We therefore find no error.

II.

We discern no merit in defendant's argument that the jury's verdict was against the weight of the evidence. On appeal, defendant principally relies on the arguments made by defense counsel in seeking a new trial on this ground. Counsel argued that the State had not proven beyond a reasonable doubt that the gun found in the box springs of defendant's bed was possessed or controlled by him, because it had failed to prove that the bed was in defendant's room. However, defendant essentially admitted that fact when, upon being asked where the police could find clothes for him to wear while being transported to police headquarters, defendant, directing the police to the room at issue, responded: "Get me the shorts that are on my bedroom floor between my bed and the bathroom." The discovery of defendant's clothes in that room, as well as his driver's license, keys to his car, and other items belonging to defendant, clearly established that defendant used the room as his personal living quarters and retained control over it and its contents, whereas the house's other resident occupied a second bedroom, and they both occupied common areas. Constructive possession, by defendant, of the gun found hidden behind a slit in the covering of the box spring of his bed was adequately established under standards articulated in State v. Schmidt, 110 N.J. 258, 270 (1988).

As far as the cash was concerned, defendant's aunt, Robin Treadvance, admitted that the money was defendant's, his intercepted telephone calls corroborated that fact, and the money's appearance in the distinctive bundles described at trial by burglary victim Martha Arvanitis established that it had been stolen. In the circumstances, we are satisfied that the jury's verdict did not result, under any circumstance, in a miscarriage of justice under the law. R. 2:10-1; State v. Cook, 179 N.J. 533, 565 (2004). The overwhelming evidence of defendant's guilt presented by the State at trial amply supported both the jury's and the judge's determinations of guilt. Defendant's arguments to the contrary on appeal lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

III.

In multiple additional arguments, defendant challenges the determination that probable cause existed to justify the issuance of the wiretap orders and search warrants that led to his eventual arrest.

The record discloses that the initial information regarding defendant's participation in the series of unsolved North Jersey residential robberies that were under investigation arose from the efforts of individual police departments and, later, from the activities of a joint task force, comprised of members of various police departments and prosecutorial employees, which was formed to identify and apprehend the perpetrators of the crimes. Their activities, and the evidence gathered as a result, led to the issuance of a wiretap order permitting the interception of communications from or received by cellular telephones maintained by persons known as Shawn Hill and Michael Jones. Probable cause for issuance of the warrant was established by Captain Ronald E. Thornburg of the Somerset County Prosecutor's Office in a seventy-four page affidavit, dated June 25, 2001, that laid out, in a painstaking and extremely detailed fashion, the investigation that had occurred to date and the basis for his conclusion that Daniel Gatson was a ringleader of the group participating in the burglaries, and that he was utilizing the cell phones issued to Shawn Hill and Michael Jones to facilitate the commission of the crimes.

The affidavit noted the cooperation of Dammen McDuffie, a confederate of Gatson's, who had provided evidence inculpating Gatson and describing his methods in a December 1999 statement, following McDuffie's arrest. The affidavit also recounted the information provided in June 2001 by a confidential informant (CI) whose identity was known to law enforcement, and whose information had previously led to an indictable conviction. The CI, like McDuffie, provided information regarding the criminal activities of Gatson and others, and provided corroboration to information already gathered in the course of the investigation. Thornburg's affidavit also detailed the statutory predicates for issuance of the wiretaps set forth in the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to

-34, and the factual basis for a conclusion that those predicates had been met, including a demonstration that other means of investigation had not proven to be fruitful and were unlikely to be so in the future. N.J.S.A. 2A:156A-9c(6). Orders granting the wiretaps were issued by Judge D'Italia on June 26, 2001.

On July 6, 2001, as a result of the information provided from the Hill and Jones wiretaps, Detective Sergeant Christopher Shea of the Somerset County Prosecutor's Office submitted an affidavit in support of a new intercept order, to be placed on a Verizon cell phone number registered to Iva Gatson, defendant's grandmother, but believed to be used by defendant. In his supporting affidavit, Detective Shea detailed the information obtained from the Hill and Jones wiretaps demonstrating that the phones were, indeed, utilized by Gatson. Shea additionally noted that the phones were no longer in use, and his basis for concluding that the Gatson phone was their replacement. Shea further outlined the expected results of the new wiretap and proffered reasons for its necessity, largely echoing Thornburg's affidavit in this respect. Another wiretap order was issued. Thereafter, a second CI confirmed that Gatson was conducting residential burglaries and that the word on the street was that he had made a "big score," a statement that accorded with other evidence suggesting that defendant was the perpetrator of burglaries in February through April 2001 that had netted over one million dollars in jewelry and almost one-half million dollars in cash.

By late July 2001, the task force working to identify and apprehend the perpetrators of the burglaries concluded that Gatson was concealing the fruits of his crimes at his residence in Cliffside Park, at Iva Gatson's residence in Teaneck, and at Robin Treadvance's residence in Teaneck. In an affidavit dated July 27, 2001, Detective Shea submitted further evidence in support of a request for issuance of warrants to search those residences. These warrants, likewise, were issued, leading to the discovery of the items that formed the basis for defendant's indictment in this matter.

In his pre-trial suppression motion, defendant attacked virtually every assertion contained in the three affidavits. He contended, among other things, that the burglaries described in them lacked an identifying common thread that could be traced to Gatson, and were merely a series of unsolved crimes with features common to many residential burglaries. He argued that much of the information presented as a foundation for the issuance of the wiretaps was stale. He attacked the reliability of the police informants, and he claimed that officers providing the affidavits and information underlying them either misunderstood, misstated or misrepresented the facts in issue, which lacked the connections between people and between events that law enforcement sought to draw. He claimed that the affidavits did not provide a basis for concluding that alternative means of investigation had been and would in the future be unsuccessful. He also contended that the information provided by the interception of telephone calls did not provide probable cause to believe that a crime had been committed or that evidence leading to the indictment of defendant would be found in any of the three locations specified as the subjects for search.

The trial judge denied defendant's suppression motion, finding that the warrants were supported by probable cause. In doing so, the judge found links between the ongoing string of burglaries that provided a reason to believe that one actor or group of actors had committed many or all of the crimes; that the statements made by the confidential informants and McDuffie tied defendant and his associates to the burglaries; and that the evidence indicated that cell phones were used in furtherance of some of those burglaries. The judge found this evidence, as applicable, supported Judge D'Italia's conclusion that the initial wiretap orders should issue, as well as the issuance of the subsequent wiretap order and search warrants. Further, the judge found no showing of a deliberate false statement or any reckless disregard for the truth entitling defendant to an evidentiary hearing or the suppression of the evidence seized. In this regard, the judge reviewed allegedly inaccurate evidence of expenditures in the name of defendant and Iva Gatson, recited by the affiants, finding the evidence to have accurately portrayed an affluent lifestyle unsupported by any equivalent identifiable financial means. The judge stated:

In conclusion, probable cause cannot be held insufficient by picking apart the affidavit[s] sentence by sentence in isolation. Instead you must determine whether probable cause has been established and that there is a substantial basis to believe that a particular person was involved in a particular crime and that crime was committed in a particular place.

The judge found the evidence sufficient in this regard, and denied defendant's suppression motion.

Defendant renews his arguments on appeal, adding an additional allegation that the affiants may have uttered deliberate untruths and, should we determine not to suppress the evidence outright, that we should remand the matter for an evidentiary hearing. In a pro se brief, defendant raises the further, and largely duplicative, arguments directed to the wiretap orders and search warrants that we have enumerated at the commencement of this opinion.

We find nothing in the arguments presented by defendant or on his behalf that suggests error on the part of the trial court or the judge issuing the challenged orders and warrants. "Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge, and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879, 1890 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 (1925)). The New Jersey Supreme Court has adopted this formulation. State v. Burnett, 42 N.J. 377, 387 (1964). The totality of the circumstances must be evaluated in determining whether probable cause exists. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983); State v. Novembrino, 105 N.J. 95, 122 (1987). The key determinant in the establishment of probable cause is the reasonableness of the officer's belief. Burnett, supra, 42 N.J. at 387. Information used in reaching this determination, such as hearsay statements, if otherwise deemed reliable, or prior convictions, utilized to an extent here, need not be admissible at trial. Ibid.

In reviewing a trial or issuing court's probable cause determination, we must review the matter de novo. However, we review any underlying factual determination for clear error, and accord substantial deference to any inference drawn from the facts by the trial court and experienced police officers. Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911, 920 (1996); State v. Sullivan, 169 N.J. 204, 211-12 (2001); State v. Kasabucki, 52 N.J. 110, 117 (1968). A search executed pursuant to a properly obtained warrant is presumed valid, and the burden lies on the challenger to demonstrate its invalidity, either because of the absence of probable cause or because the search was otherwise unreasonable. Sullivan, supra, 169 N.J. at 211-12.

Our review of the affidavits in the present case leads us to conclude that defendant has failed to meet his burden of demonstrating the invalidity of either the wiretap orders or the search warrants. We similarly discern no basis to order the evidentiary hearing that defendant alternatively seeks, finding no significant misstatement of fact, let alone one that could be deemed to have been made deliberately or in reckless disregard for the truth. State v. Marshall (III), 148 N.J. 89, 193, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). We are satisfied that the affiants presented a scrupulously detailed, lengthy and trustworthy listing of the evidence linking the burglaries they were investigating to a common group of burglars, and then tied some of the burglaries to defendant through the use of his known prior criminal history, testimony of his associates and accomplices, and various law enforcement officers' investigations and own observations. Bank, insurance and other records indicated defendant was living an affluent lifestyle without visible means of support, and testimony from reliable sources indicated that defendant was engaged in criminal activity. Additionally, the facts underlying defendant's past burglary convictions had much in common with the unsolved robberies. The conclusion that defendant was involved in the burglaries under investigation was eminently reasonable, and it justified a finding that there was probable cause to focus investigatory efforts on him. We further regard the issuance of the wiretap orders to have been justified by the officer's inability to obtain through other means solid evidence that could be presented in court of defendant's criminal involvement, and that the wiretap evidence, together with the other evidence disclosed in the course of the lengthy investigation, provided probable cause to believe that the fruits of defendant's crimes would be found at his residence, as well as those of Robin Treadvance and Iva Gatson.

Because evidence suggested that defendant and his cohorts promptly fenced their stolen gains, the identification by Shea of "money and documents" as the targets of the searches was perfectly reasonable, and sufficient to meet the particularity requirement of the Fourth Amendment.

As a consequence of our factual and legal analysis, we have concluded that defendant's piece-meal challenges to the basis for the wiretap orders and warrants lack substance, and that further discussion of his arguments in a written opinion is not warranted. R. 2:11-3(e)(2). The court's determination to deny defendant's suppression motion is affirmed.

IV.

Defendant has additionally asserted, for the first time, that his Fifth Amendment right to remain silent was violated when the police asked defendant where his clothes were so that he could dress before being transported to police headquarters, and that the admission of his response at trial was plain error. R. 2:10-2. Again, we disagree. The statement upon which defendant focuses was not a product of a custodial interrogation.

It is well settled that a defendant, once in custody, has a right to remain silent, State v. Muhammad, 182 N.J. 551, 558 (2005), and once an arrestee is advised of his rights and asserts that he wishes to exercise them, questioning must cease. Rhode Island v. Innis, 446 U.S. 291, 297-98, 100 S. Ct. 1682, 1688, 64 L. Ed. 2d 297, 305-06 (1980). "[A]ny words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response" are barred. Id. at 301, 100 S. Ct. at 1689, 64 L. Ed. 2d at 308.

Here, the words at issue fall within the exception identified by the Innis Court. Because so-called "ministerial" questions may be asked without intruding upon any constitutional right, State v. Cunningham, 153 N.J. Super. 350, 352 (App. Div. 1977), the issue becomes "whether, in the context of a brief conversation, the officers should have known that the respondent would suddenly be moved to make a self-incriminating response." Innis, supra, 446 U.S. at 303, 100 S. Ct. at 1691, 64 L. Ed. 2d at 309.

The record in this case reflects that, prior to the comment at issue, defendant had denied that the bedroom in which the gun was found was his. We see no basis for concluding that, in answer to a question regarding the location of his clothes, the police could reasonably expect that defendant would then identify that bedroom as his own. We thus find no Fifth Amendment violation to have occurred.

Although we recognize that defendant has raised a number of additional arguments addressed to his conviction, we find none of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

V.

The State has conceded that defendant's extended-term sentence, imposed prior to the issuance of the Court's opinion in State v. Pierce, 188 N.J. 182 (2006), but under direct challenge at the time Pierce was decided, was rendered in a fashion that violates Pierce's precepts. Id. at 169; see also State v. Natale, 184 N.J. 458, 495-96 (2005). We thus remand defendant's case for resentencing. At that time, the court can address any additional sentencing arguments advanced by defendant or on his behalf.

Defendant's conviction is affirmed. The matter is remanded for resentencing in light of State v. Pierce.

 

The Arvanitises lost over $800,000 in a burglary occurring on April 14, 2001.

The jewelry was found in a common area of the house, which had more than one occupant.

A presumption in this context has the effect of a permissive inference and must be charged as such. State v. Humphrey, 183 N.J. Super. 580, 584 (Law Div. 1982), aff'd on other grounds, 209 N.J. Super. 152 (App. Div. 1986); N.J.R.E. 303. We utilize the term "presumption" in this opinion to accord with the relevant statutory language.

The court in Humphrey stated:

[T]he jury should be carefully instructed with respect to the limited purpose for receiving such evidence in the event it is found to be admissible. Such instructions should make it plain to the jury that they cannot consider such evidence as proof of a general propensity on the part of the defendant to commit crime. They can consider such evidence only for the limited purpose of determining defendant's state of mind.

[Humphrey, supra, 183 N.J. Super. at 585.]

(continued)

(continued)

24

A-5009-04T4

November 1, 2007