STATE OF NEW JERSEY v. TRENT J. BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0849-06T40849-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRENT J. BROWN, a/k/a "SHYNE,"

Defendant-Appellant.

___________________________________

 

Submitted September 22, 2008 - Decided

 

Before Judges Carchman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-03-0211.

Yvonne Smith Segars, Public Defender, attorney for appellant (Roger L. Camacho, Designated Counsel, of counsel and on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (Eric Mark, Assistant Prosecutor, on the brief).

PER CURIAM

After being waived from juvenile status by the Family Part and tried as an adult in the Criminal Part, defendant Trent J. Brown was found guilty by a jury of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); fourth-degree possession of a firearm by a minor, N.J.S.A. 2C:58-6.1(b); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b). He was sentenced, after appropriate mergers, to twelve years of imprisonment on the armed robbery offense, plus two concurrent four-year terms on the weapon possession and hindering apprehension charges.

Defendant now appeals, contesting: (1) the waiver of his prosecution from the juvenile court, (2) the admission at trial of his confession to the police, (3) the admission of contraband evidence, and (4) the severity of his sentence. Because none of those arguments has merit, we affirm.

I.

The charges against defendant stemmed from an attempt to rob a man at gunpoint at an apartment complex in Somerset County on the evening of January 7, 2005. At the time, defendant was seventeen years old. The State's proofs at trial established the following facts about the robbery and ensuing events pertinent to our analysis.

Around 6:00 p.m. on the evening of January 7, 2005, fifty-year-old Fred Shamary was visiting a friend at the Parkside Apartment Complex in Franklin Township. Shamary's white Mustang was parked in the complex's parking lot, near the rear door leading inside. Shamary's friend was trying to hang blinds or curtains in his windows, and Shamary told him he thought he had a Phillips head screwdriver in his car. Shamary then left the apartment and went back to his car, opened the trunk, and began looking for the screwdriver.

When he first arrived at his friend's apartment, Shamary noticed two men standing and talking in the area between the parking lot and the complex's rear door. Shamary recalled that the two men "were young guys," about seventeen or eighteen. One was taller than the other. As Shamary rummaged through his trunk looking for a screwdriver, one of the those men approached him from the driver's side. The man pointed a gun at Shamary, and commanded "give me your money, give me your money." Shamary replied that he did not have any money. The man then checked Shamary's pockets himself, found nothing, and walked away.

Shamary described his assailant with the gun as a black man wearing a camouflage jacket and "ski mask" over his face. He could not see the man's face because it was hidden by the mask. Shamary did note that it was the taller of the two men he saw earlier that had robbed him. The other man, the shorter one, stood by the front of the car while the encounter took place. Shamary did not get a good look at the shorter man, and could only recall that he wore "a black jacket." Afterwards, the two men walked away together across the parking lot, heading towards Minetta Road.

A bystander, James Sinkfield, was also visiting at the Parkside apartments that night. At around the same time as Shamary first arrived, Sinkfield noticed the same two men standing near the walkway leading to the complex's back door. Sinkfield observed that the two men, who he also perceived were black, looked about age "twenty," and that the taller one wore a camouflage jacket while the shorter one had on a "black team logo jacket." The two men also wore hats, but their faces were uncovered. After learning a short time later that Shamary had been robbed, Sinkfield went back outside and saw the same two men walking away across the parking lot. He then called the police.

The police arrived shortly thereafter, and spoke with Shamary and Sinkfield in the parking lot. The officers then knocked on the door of 172 Minetta Road, which was adjacent to the parking lot of the Parkside apartments. The Franklin Township police were well-acquainted with this house and its occupants, as it had been the site of past disturbances. Hopeton Brown, Jr. ("Hopeton Brown"), who lived at the residence, answered the door. He was wearing a black jacket with team logos on it and a knit cap on his head, that appeared to be rolled up and had eye holes in it. After Hopeton Brown stepped outside, police officers searched him for weapons. He unsuccessfully attempted to flee the scene and was promptly detained. Malik Riley, who also lived there, followed Hopeton Brown outside. After arguing with the officers, Riley also was detained. At the time, Riley was not wearing any jacket.

The police officers then asked Shamary and Sinkfield to look at the two men who had been apprehended. Patrolman Mark Reiner testified that both Shamary and Sinkfield positively identified Brown and Riley as the suspects, "to the best of their recollection." Based on this information, police arrested both suspects.

After securing a search warrant, police officers searched the house. While that search was ongoing, several persons who had been inside when Brown and Riley were arrested came out to the street. Others were still inside the house, seated in the living room.

The police recovered three handguns tucked beneath a sofa cushion in the basement, another handgun in a second-floor bedroom, three bullets underneath a mattress in Riley's bedroom, several rounds of ammunition, and drugs and drug paraphernalia. They also found a total of four camouflaged jackets in various parts of the house. Hopeton Brown and Riley, meanwhile, had been taken to the police station for processing.

The next morning, Franklin Township Detectives Darrin Russo and Patrick Albani, who were in charge of investigating the robbery, were summoned to the police station. Earlier that morning, defendant had arrived at the police station alone, claiming he had information about the robbery. Upon meeting Detective Albani in the lobby, defendant told him, "you have the wrong guy." He then informed Albani, "I was the guy who . . . you should have arrested instead of [Malik] Riley." Defendant allegedly made a similar statement to Detective Russo upon meeting him.

After speaking with defendant for a few moments, Detectives Albani and Russo discovered that he was a minor. They told defendant that he needed a parent or guardian present before they could speak further with him. Defendant then gave the detectives the name and address of his grandfather, Ernest Brown, with whom he resided and who had been his guardian since he was an infant. The police called Ernest Brown and requested that he come down to the station. According to Detective Albani, he did not speak to defendant again until the grandfather arrived.

Upon Ernest Brown's arrival at the police station, Detective Albani reviewed the Miranda form with him and defendant. Both grandfather and grandson signed the form, documenting that defendant was waiving his right to remain silent.

After signing the Miranda waiver form, defendant proceeded to give a detailed statement to Detective Albani. Defendant stated that he was the person who was with Hopeton Brown near the Parkside apartments. He further admitted that Hopeton Brown supplied him with the gun that had been wielded at Shamary.

At first, Detective Albani did not believe defendant, telling him that he thought defendant was merely covering up for Riley. However, defendant seemed to know many details of the robbery such as who held the gun, how much money was taken, and where the gun was stashed in the house. Given these details, Detective Albani ultimately concluded that defendant was being truthful about his culpability.

Detective Russo also believed, initially, that Riley was the perpetrator, and that defendant had falsely confessed to protect Riley. While they were at the police station, Detective Russo told defendant and his grandfather that he thought defendant was making up a story. However, Detective Russo likewise changed his mind, after hearing defendant relate details of the incident that could not be known by him unless he actually had been involved.

In this regard, Detective Russo testified that he had tried to trick defendant into admitting that he was lying. He did so by purposely conveying to defendant fabricated details of the incident, such as who pointed the gun at Shamary. Nevertheless, defendant corrected Russo and gave a version of events that was consistent with what Shamary had told the police. This corroboration persuaded Detective Russo that defendant was, in fact, the person who had committed the robbery along with Hopeton Brown.

After his interview, defendant agreed to give a taped statement to police about the incident. In that recorded statement, which was admitted and played for the jury at trial, defendant confirmed that he had read over the Miranda form, agreed to waive his rights, and wished to speak to police officers about the incident. Defendant then stated on the recording:

Me and Hop[e]ton Brown were standing on Parkside and we decided that we needed some money so we saw a man who we thought to have money so we walked over to his car, he came back outside the building, Smurf [Hopeton Brown] handed me the gun, and I put it to his arm and chest and [told] him to gimme the money, patted him down, he didn't have no money so we just proceeded to go back into the house.

Defendant further recounted that at the time of the incident he was wearing a camouflaged army jacket, a Los Angeles Clippers jersey, a black hat, black face mask, and jeans. He described Hopeton Brown's attire as consisting of a "[b]lack face mask, black hat, some jeans, black sneakers and a black hoody."

Defendant then described what happened after he got back to 172 Minetta Road:

I went to [the] house in the basement and I sat there and I placed the gun under the, under the couch. I came back upstairs I saw Smurf [Hopeton Brown] and I saw [Malik] handcuffed to the car, but then . . . and then I left through the back door on my bike and I went down the street and I put my face mask in a sewer, then I went to my friend['s] house.

According to his statement, defendant rode his bicycle to his friend Ali Luckey's house and spent the night there. He told Luckey what he had done and also told him that he intended to turn himself in to the police. Defendant stated that he knew Riley personally, that he and Riley were a similar height and weight, and that Riley also owned a camouflaged jacket.

Based on the information defendant provided in his statement, the police searched the sewer drains on Fuller Street, where defendant claimed he threw his face mask. No mask was recovered. Given that a flood the night before had four feet of water in the drains, Detective Albani terminated the search because he did not think it was possible that anything would be recovered.

While his colleagues were searching the sewer, Detective Russo went to Luckey's house to interview him about the incident. Luckey confirmed in that interview that defendant had spent the night there and had told him about the robbery. Upon learning this, Detective Albani was, in his words, "fully convinced" that defendant had told him the truth in confessing to the attempted robbery. Riley was released by police shortly after that, and defendant and Hopeton Brown were charged with the robbery.

The State sought to waive defendant to adult status pursuant to N.J.S.A. 2A:4A-26(a)(1)(2) and (e). After a three-day hearing in the Family Part, Judge Thomas Dilts issued an oral decision on March 4, 2005, granting the State's waiver application. In particular, Judge Dilts found that the State had established probable cause that defendant had committed the charged offenses. In the course of his decision, Judge Dilts relied upon not only defendant's confession to the police but other circumstantial proofs that inculpated him.

At a pretrial motion, defendant sought to exclude his taped confession, claiming that he had not knowingly and voluntarily consented to the police interrogation. At the hearing on this motion, defendant testified and recanted his earlier taped confession.

Specifically, defendant denied committing the robbery and denied ever being at 172 Minetta Road on the night of the robbery. Instead, defendant claimed that he was staying at Luckey's house, and that he received a phone call that night from an acquaintance, Xavier Bailey, who informed him of Riley's and Hopeton Brown's arrest. The next morning, Bailey allegedly called again and tried to convince defendant to "help Malik out" by pretending that he was the one who committed the robbery, not Riley. Bailey supposedly told defendant that, because he was then a juvenile, he would only receive probation if he confessed, whereas Riley, who had recently been released from the Jamesburg Youth Correctional Facility, would now face prison time.

Defendant further claimed that after that phone conversation he went to Bailey's house. Once there, Bailey and two other persons who had been at 172 Minetta Road the previous night supposedly provided him with details about the incident. Defendant asserted that he specifically learned from Bailey and the others that the police had found guns under the sofa cushion and several camouflaged jackets at 172 Minetta Road.

Even so, defendant admitted during the hearing that he voluntarily went to the police station, that he understood his Miranda rights as Detective Albani read them to him, that he voluntarily initialed next to each right, and that he voluntarily signed the form waiving his rights. Defendant specifically acknowledged that he understood his right to remain silent, his right to a lawyer, his right to end the interview, and that anything he said could be used against him.

After considering this testimony, Judge Edward Coleman ruled that defendant's statement to the police was "free, knowing and voluntary beyond a reasonable doubt." Consequently, Judge Coleman held that the statement was admissible at trial.

The six-day trial immediately followed the Miranda hearing. Defendant's theory at trial was that he had lied to police to protect Riley, because his friends had convinced him that, as a juvenile with no criminal history, he would only receive probation if he was adjudicated guilty of this offense. In opposition, the State contended that defendant had truthfully confessed his crime, because he feared retribution if Riley were to go to prison for a crime actually committed by defendant.

As part of its trial proofs, the State presented the testimony of Shamary, the victim, and Sinkfield, the bystander. It also produced Detectives Albani and Russo, as well as six other police officers who had been involved in the investigation and the search at 172 Minetta Road following the robbery. The State also introduced into evidence various items recovered at the house, including the camouflaged jackets, guns, and ammunition. Defense counsel did not object to the admission of any of these proofs.

Neither defendant nor his grandfather testified at trial. However, the defense did present testimony from Ali Luckey, defendant's mother Debra Luckey, Malik Riley, Jaron Jennings, Xavier Bailey and Nakia Bailey. The Luckeys both claimed that defendant had been in the Luckey home the entire day and night of January 7. The latter three witnesses, friends of defendant and Riley, all attempted to corroborate defendant's trial theory, i.e., that he had turned himself in to protect Riley. In his own testimony, Riley did not, however, admit to participating in the robbery. Instead Riley testified that he was in his home the entire day until the time when he was arrested, and that defendant had not been there.

Following a jury charge that both counsel found acceptable and is not challenged on appeal, the jury returned a verdict the next day. The jury found defendant guilty of all six counts of the indictment and at the time of sentencing, Judge Coleman merged the unlawful-purpose weapons count of the indictment and the aggravated assault count with the armed robbery count. The judge also merged the count charging fourth-degree weapons possession by a minor into the third-degree offense for possessing a handgun without a permit. As previously noted, the judge sentenced defendant to twelve years imprisonment on the first-degree armed robbery charge, with an 85% parole ineligibility period required by the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2(c). The judge also imposed two four-year terms on the weapon possession and hindering apprehension charges. All sentences ran concurrently.

On appeal, defendant raises the following points:

POINT I

THE COURT REVERSIBLY ERRED IN WAIVING [DEFENDANT] TO THE ADULT COURT FOR TRIAL BECAUSE THE PROSECUTOR FAILED TO ARGUE THE DETAILED REASONS FOR HER REQUESTING THE WAIVER OF [DEFENDANT] IN TERMS OF THE ATTORNEY GENERAL'S GUIDELINES AND THE COURT FAILED TO REVIEW AND RULE ON THE ISSUE OF WHETHER THE PROSECUTOR'S DECISION TO RECOMMEND WAIVER UNDER THE FACTS OF THIS CASE FOR THIS DEFENDANT WAS ARBITRARY AND NOT UNIFORM STATEWIDE UNDER THE ATTORNEY GENERAL'S GUIDELINES.

POINT II

THE COURT REVERSIBLY ERRED IN WAIVING [DEFENDANT] FOR TRIAL IN THE ADULT COURT PURSUANT TO R. 5:22-2(b)(1); N.J.S.A. 2A:4A-26(f)[;] BECAUSE IN ASSESSING WHETHER THERE WAS PROBABLE CAUSE THAT [DEFENDANT] COMMITTED THE OFFENSES THE COURT SUA SPONTE FAILED TO REVIEW AND DECIDE WHETHER [DEFENDANT'S] FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO REMAIN SILENT WERE VIOLATED IN TAKING HIS INCULPATORY STATEMENTS WHICH HE LATER RECANTED AS NOT KNOWINGLY, INTELLINGENTLY AND VOLUNTARILY GIVEN.

POINT III

THE TRIAL COURT REVERSIBLY ERRED IN DECIDING THAT [DEFENDANT'S] INCULPATORY STATEMENT WAS ADMISSIBLE BECAUSE IT WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY GIVEN WITH A FULL UNDERSTANDING OF HIS CONSTITUTIONAL RIGHTS TO REMAIN SILENT AND TO DUE PROCESS AND A FAIR TRIAL BEFORE AN IMPARTIAL JURY.

POINT IV

THE TRIAL COURT REVERSIBLY ERRED IN FAILING SUA SPONTE TO EXCLUDE PURSUANT TO N.J.R.E. 404(b) AND N.J.R.E. 403 THE REPEATED TESTIMONY BY THE STATE'S WITNESSES AS TO THE DRUGS, DRUG PARAPHERNALIA, FOUR HANDGUNS AND TWO HUNDRED ROUNDS OF AMMUNITION FOUND AT 172 MINETTA ROAD.

POINT V

[DEFENDANT'S] TWELVE-YEAR PRISON TERM WITH AN 85% PERIOD OF PAROLE INELIGIBILITY TOGETHER WITH HIS CONCURRENT FOUR-YEAR PRISON TERMS FOR HIS THIRD DEGREE CONVICTIONS WERE ILLEGAL AND MAINFESTLY EXCESSIVE.

We address these arguments seriatim.

II.

Defendant contends in the first two points of his brief that his waiver to adult court was procedurally and substantively flawed and must be reversed. Procedurally, defendant contends that the assistant prosecutor failed to present sufficiently detailed reasons for the waiver, and the trial court likewise failed to make a determination that the prosecutor's reasons were not arbitrary. Substantively, defendant argues that there was insufficient probable cause to support the charges against him.

The State argues in reply that, because this case involved a presumptive waiver based on defendant's age and the seriousness of the crime, it needed only to show probable cause. It maintains that it followed all proper procedures. In addition, it contends that, substantively, there was ample evidence for the court to find probable cause.

Under our statutes and case law governing the waiver of juvenile offenders to adult court, waiver is presumed if the charged juvenile is at least sixteen and the State has established probable cause that the juvenile committed a first-degree crime, such as robbery. N.J.S.A. 2A:4A-26(a)(1)(2),(e); see also State v. Read, 397 N.J. Super. 598, 604 (App. Div.), certif. denied, 196 N.J. 85 (2008). Although in some waiver catagories the State has the burden of proving that "the interests of the public require a waiver," that burden does not apply to presumptive waiver cases involving, as here, first-degree crimes. N.J.S.A. 2A:4A-26(a)(3); see also R. 5:22-2(3) ("On a finding of probable cause . . . no additional showing is required for waiver to occur."). In addition, a juvenile charged with a first-degree offense cannot overcome a presumptive waiver by showing a likelihood of his rehabilitation by the age of nineteen. N.J.S.A. 2A:4A-26(e).

Aside from these substantive criteria, prosecutors are guided by the procedures set forth in the Attorney General's Guidelines on Juvenile Waivers ("the Guidelines"), issued in March 2000, at the direction of the State Legislature. See N.J.S.A. 2A:4A-26(f) (requiring the Attorney General to establish guidelines for juvenile waivers and disseminate them to county prosecutors offices). Under the Guidelines, the assistant prosecutor must prepare a statement of reasons for seeking the waiver. In that statement of reasons, the assistant prosecutor ordinarily must consider seven factors: the nature of the offense, deterrence, the effect of waiver on co-defendants, the maximum sentence and length of time served, defendant's prior record, the likelihood of conviction, and victim's input. See Guidelines at 5-6; see also Read, supra, 397 N.J. Super. at 605. This statement of reasons is to "be reviewed and approved" by the county prosecutor. Guidelines at 7. The statement is to be provided to the court, along with the State's waiver motion. State v. J.M., 182 N.J. 402, 419 (2005). It also is to be provided to defense counsel prior to the waiver hearing. State ex rel. R.C., 351 N.J. Super. 248, 260 (App. Div. 2002).

The prosecutor is vested with the discretion to seek or not seek waiver in presumptive cases. Consequently, the standard of review of the prosecutor's waiver decision is highly deferential. We have held, in this regard, that "a prosecutor's motion for waiver of such a complaint must be granted unless the juvenile shows by clear and convincing evidence that the decision constituted a patent and gross abuse of discretion." R.C., supra, 351 N.J. Super. at 251.

Here, defendant concedes the first two requirements for presumptive waiver, i.e., that he was over the age of sixteen and that he had committed acts that were chargeable as first-degree armed robbery. He nevertheless contends that the State failed to meet its procedural obligation to specify the reasons for which it was seeking waiver. Defendant also complains about the sufficiency of the trial court's waiver ruling, asserting that "nowhere in the [c]ourt's decision did the [c]ourt discuss either the prosecutor's statement of reasons for requesting the waiver or the reasons why the prosecutor's statement was not arbitrary in terms of the [Guidelines]." Additionally, defendant faults the trial court for failing to make an explicit finding that "the prosecutor's reasons for requesting [defendant's] waiver were consistent with statewide standards as promulgated in the Attorney General's [Guidelines]."

Defendant's procedural criticisms of the Family Part's waiver disposition have no merit. There is simply no requirement, in the Guidelines, the waiver statute or in case law, that a motion judge make specific and detailed findings, sua sponte, dissecting the prosecutor's statement of reasons. Rather, as this court has noted, "a trial court's review of a prosecutor's statement of reasons to waive a juvenile complaint to adult court may be made summarily." R.C., supra, 351 N.J. Super. at 258 (emphasis added). The formalistic method of review advocated by defendant does not square with the deferential standard announced in R.C., allowing review of the waiver decision only on the basis of a "patent and gross abuse of discretion." Id. at 251.

Defendant's procedural argument is contrary to the statutory presumption of waiver in cases where a juvenile sixteen or older has committed a first-degree crime. If, in fact, the Legislature intended to obligate trial courts to evaluate and comment upon each and every waiver factor, aside from probable cause, in this category of cases, then there would be little purpose in making such waivers presumptive. Nor would an individual waiver hearing be a suitable forum for a judge to determine if the Guidelines were being applied "uniformly statewide," as defendant suggests. So long as there is probable cause that the juvenile committed a first-degree crime of robbery, the remaining factors in the Guidelines have limited significance.

Moreover, in the present case, the assistant prosecutor conformed with all of the requirements of the Guidelines. His three-page written statement of reasons, dated January 12, 2005, addressed all seven pertinent factors. The statement was approved by the first assistant county prosecutor, and both the Family Part judge and defendant were provided with a copy of it in advance of the waiver hearing.

Significantly, defendant never challenged the assistant prosecutor's statement of reasons at the waiver hearing. Rather, defense counsel's sole argument against waiver was an alleged lack of probable cause. Because defendant never objected or sought review below, this issue must be reviewed under the plain error standard, as to whether there was an error "clearly capable of producing an unjust result." R. 2:10-2.

We discern no such error here, let alone plain error, that unjustly prejudiced defendant. Under the deferential standard of review announced in R.C., we detect no patent or gross abuse of discretion in the prosecutor seeking waiver in this case. Defendant, who was only eight months shy of turning eighteen, confessed to committing armed robbery. Other circumstantial proofs, including the accounts of the victim and the eyewitness, corroborated defendant's probable culpability. Although the Family Part judge did not explicitly comment on the Guidelines' factors analyzed in the prosecutor's memorandum, he did not need to do so in this case, where the propriety of waiver was so manifest. See State v. R.G.D., 108 N.J. 1, 10-11 (1987) (discussing the legislative intent behind the presumptive waiver statue).

Substantively, defendant argues that the court erred in finding probable cause, and therefore waiver was improper. He specifically contends that his taped confession should not have been used to establish probable cause because the Family Part judge had not, at that point, determined that the confession had been given voluntarily and freely. Without his inculpatory statement, defendant argues, the State's other proofs were insufficient to establish a fair likelihood that he committed a crime.

In opposition, the State contends that there was ample evidence supporting probable cause, and that defendant's taped confession was properly considered at the waiver hearing. We agree.

In the context of a juvenile waiver hearing, "[p]robable cause . . . is no more than a well-grounded suspicion or belief that an offense has taken place and that [the juvenile] was a party to it." State ex rel. A.T., 245 N.J. Super. 224, 227 (App. Div. 1991). The probable cause portion of a waiver hearing in juvenile court is comparable to a probable cause hearing in criminal court. J.M., supra, 182 N.J. at 415. Such preliminary proceedings, whether in juvenile or adult court, are not subject to the same constitutional and evidentiary restrictions that apply at a trial on the merits:

[C]onstitutional guarantees arising from the question of admissibility of evidence at a trial on the merits do not apply to a preliminary jurisdictional hearing which simply determines whether the accused is to be tried in one court or another. Such a hearing is a preliminary proceeding to determine the propriety of transfer under the statutory criteria. The portion of the hearing relating to probable cause can be analogized to the probable cause hearing prior to indictment or the determination of a grand jury to indict. In either of these instances, rules of evidence and constitutional guarantees involving the trial process are inappropriate.

[State ex rel. B.T., 145 N.J. Super. 268, 273 (App. Div. 1976), certif. denied, 73 N.J. 49 (1977).]

Although constitutional restrictions on evidence admitted at a criminal trial do not apply in juvenile waiver hearings, we recognize that such pretrial hearings are still governed by norms of due process. J.M., supra, 182 N.J. at 410; see also Kent v. United States, 383 U.S. 541, 556, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1996). Such due process rights at a waiver hearing include the right to counsel, the right to a fair hearing, and the right to testify and present evidence in defense. J.M., supra, 182 N.J. at 411, 416-17.

We are satisfied that defendant's hearing comported with the basic norms of due process as set forth in J.M., supra. Defendant was represented by counsel. He testified in his own defense and also presented the testimony of his grandfather. We reject defendant's argument that, as a procedural matter, the Family Part judge could not rely on his confession to determine probable cause because the court had not yet decided the Miranda issue. The determination of probable cause is a threshold preliminary issue. In such a proceeding, the trial court may consider evidence that might not ultimately be admitted at trial. The court has the discretion at a probable cause hearing to relax evidentiary strictures. N.J.R.E. 101(a)(2)(D). Moreover, as defendant's confession was valid under Miranda and thus properly admissible, this argument is without merit. We perceive no necessity for the trial court to conduct a Miranda hearing first before conducting a waiver hearing that considers, among other things, proof of defendant's confession. To the contrary, trial courts should have the flexibility to determine the best time and manner in which the voluntariness of a defendant's statement to the police should be adjudicated.

In this case, the Miranda hearing was conducted by the Law Division judge after defendant had been waived from the Family Part. We see nothing wrong in that sequence. Indeed, the sequence afforded the judge who would preside over the trial with the benefit of having the confession issues litigated before him, as background to the trial that began soon thereafter.

A probable cause finding is not a determination of guilt or innocence, but only a finding that there is sufficient evidence to proceed with the charges. A.T., supra, 245 N.J. Super. at 227-28 (the purpose of the probable cause hearing is not "to weigh the evidence and determine where the truth of the matter lay"). The evidence clearly sufficed to establish such probable cause here. Indeed, defendant's proofs were disbelieved at trial, and his defense theory was internally inconsistent.

Defendant contends that his confession to the crime and the details he provided to the police in that confession failed to establish probable cause, since defendant's friend Xavier Bailey "knew all of the details of the incident which he related to [defendant] when he asked defendant to take the blame for Malik Riley." This assertion is not consistent with the factual record developed at trial. In fact, Bailey testified at trial that he did not know all of the details about the robbery and only knew the particulars of what was recovered by police officers when they searched 172 Minetta Road. That does not explain how defendant knew the specifics of the robbery itself, including where it took place, who held the gun, and how much money was recovered. Bailey did not know these facts and could not have provided them to defendant. Yet, it was precisely these corroborating details in defendant's confession that supported the finding of probable cause.

For these many reasons, the Family Part's finding of probable cause and its resulting waiver of defendant to the adult court under N.J.S.A. 2A:4A-26(a)(1)(2) and (e) is affirmed.

III.

We now turn to the Miranda issue. It is well established that in determining if a person's waiver of his or her Miranda rights was voluntary, knowing, and intelligent, the court must consider a variety of factors. State v. Knight, 183 N.J. 449, 462-63 (2005), certif. denied, 189 N.J. 426 (2007). Among those factors are:

[T]he totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation. Relevant factors to be considered include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved.

[Ibid. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973) and State v. Miller, 76 N.J. 392, 402 (1978)).]

Here, we examine a scenario in which defendant, on his own initiative, went to the police station in order to confess to a crime. The Supreme Court addressed that very scenario in its Miranda opinion:

There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

[Miranda, supra, 384 U.S. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726 (emphasis added).]

Defendant contends that his unprompted assertions to Detectives Russo and Albani, in the lobby of the police station, that they had arrested "the wrong guy," violated his Miranda rights. This is so, he argues, because the detectives somehow should have recognized immediately that defendant was a minor and that they could not talk to him without a parent or guardian present. In addition, defendant contends that, since he had already come to the police station to turn himself in, this was a custodial situation in which police should not have talked to him at all until he was issued Miranda warnings. Consequently, he claims that all of the statements given after he was Mirandized, he contends, should have been excluded as "fruits of the poisonous tree." United States v. Wong Sun, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 231 (1963).

Defendant's arguments are incompatible with the facts adduced at the hearing and defendant's own testimony. First, neither Detective Russo nor Detective Albani indicated that they had prior knowledge of defendant, and they certainly did not know his age until he divulged it to them. Detective Albani testified that he asked defendant his age shortly after meeting him and that, as soon as he learned defendant was a minor, appropriately ceased the conversation until defendant's grandfather arrived.

Second, defendant's initial contact with the detectives in the police building lobby was not a custodial situation in which the constitutional protections against self-incrimination apply. Defendant acknowledges that he came to the police station voluntarily. "[T]he initial 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." Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994); see also State v. Stott, 171 N.J. 343, 364-65 (2002). The circumstances that bear on this issue include "whether there has been a significant deprivation of the suspect's freedom of action"; "the time and place of the interrogation"; "the status of the interrogator"; "the status of the suspect"; and "whether a suspect knew that he or she was a focus of the police investigation." Stott, supra, 171 N.J. at 365 (citations omitted).

Detective Albani and Russo both testified that they initially did not believe that defendant committed the robbery, but thought he was trying to cover for Riley. They both told defendant as much. There is no indication in the record that the detectives substantively interrogated defendant in the police lobby. Both detectives testified that they had, at that time, still believed that Riley was the perpetrator, and thus defendant was not under any suspicion for the crime. Instead, the detectives were openly skeptical of defendant's confession. Given their initial reaction, they were hardly treating defendant as a suspect who was being held in custody.

The Law Division judge correctly found that this was not a custodial situation in which Miranda was meant to apply. The brief conversations between defendant and the detectives in the police lobby did not constitute interrogation. Defendant was not under any suspicion of the crime, and he was not detained in any way.

Third, even if the lobby discussions should have been excluded from trial because defendant had not yet waived his Miranda rights, that would have had no effect on the admissibility at trial of defendant's subsequent taped confession. Contrary to defendant's claim, the "fruits of the poisonous tree doctrine" discussed in Wong Sun, supra, does not strictly apply in the Miranda context. See United States v. Patane, 542 U.S. 630, 642, 124 S. Ct. 2620, 2629, 159 L. Ed. 2d 667, 678 (2004); State v. O'Neill, 193 N.J. 148, 171 n.13 (2007).

The necessary inquiry here is not whether defendant's post-Miranda confession was derived from his earlier statement, but whether the brief exchanges in the police lobby between defendant and the detectives, prior to him being given the Miranda warnings, "undermin[ed] both defendant's ability to assert his right to remain silent and his ability to knowingly, voluntarily, or intelligently waive that right." O'Neill, supra, 193 N.J. at 184. Given that defendant went to the police station purposely to confess, his initial pre-Miranda statement to the detectives did not compromise his ability to then waive his Miranda rights.

As to defendant's post-Miranda statements, the record clearly shows that defendant, in the presence of his grandfather-guardian, waived his rights and voluntarily confessed. The most telling evidence on this point is defendant's own admission that he made his statements voluntarily and while fully aware of his constitutional rights. On direct examination, defendant testified that he had seen the Miranda waiver form, had initialed and signed it, had understood the rights he was waiving as Detective Albani described them, and that no one had forced him to sign the form. On cross-examination, defendant again conceded that he was aware of his right to remain silent, of his right to an attorney, of his right to stop the interview, and that anything he said could be used against him. He further admitted that he came to the police station voluntarily, and that no police officer ever threatened him or made any promises to him in exchange for his statement.

In sum, we fully agree with Judge Coleman's determination that defendant gave his statement voluntarily, knowingly, and intelligently. Although defendant allegedly believed he would not face prison time if he confessed, Judge Coleman found that this mistaken belief was not caused by either of the police officers. Rather, the judge accepted Detective Russo's testimony that the detective had repeatedly warned defendant that the charges were "serious."

Defendant's final argument is that, because his grandfather was not experienced in criminal law, he could not sufficiently protect defendant's rights during his interaction with police. He points to Ernest Brown's testimony that he did not read or understand the Miranda form, but rather signed it allegedly because a police officer told him to. Ernest Brown also claimed that no one told him that his grandson had a right to a lawyer.

Judge Coleman disbelieved this testimony, finding "[i]t doesn't make sense at all." The judge's credibility finding requires our deference. State v. Locurto, 157 N.J. 463, 471-72 (1999). Ernest Brown signed the Miranda form and was present when his grandson gave a taped statement. Furthermore, since defendant himself unequivocally stated that he understood and voluntarily waived his Fifth Amendment rights, it is immaterial whether or not his grandfather clearly understood the proceedings.

For all of these reasons, we agree there was no constitutional violation here, and therefore affirm the trial ruling admitting defendant's taped confession.

IV.

Defendant next contends that his convictions should be reversed because the trial judge admitted various proofs from the State that included or related to the weapons, ammunition, and other items recovered in the police search of the premises at 172 Minetta Road. Specifically, defendant asserts that these contraband proofs should have been excluded under N.J.R.E. 403 as unduly prejudicial, and also under N.J.R.E. 404 as improper proof of defendant's propensity to commit a crime. Because defendant's trial counsel did not object to the admission of these proofs, we consider these arguments under the plain error review standard. R. 2:10-2.

Defendant maintains that the introduction of the seized contraband from 172 Minetta Road, coupled with testimony that placed defendant at that location after the robbery, somehow implied to the jury that (1) 172 Minetta Road was a gang house, and (2) defendant was affiliated with a gang and thus predisposed to commit robbery. In fact, the State presented no evidence that defendant was a member of any gang, and it presented no testimony characterizing 172 Minetta as a gang house.

The only evidence heard by the jury relating to gangs was testimony from Detective Russo that (1) a camouflaged jacket with the words "Chip Set" and "PSK" - short for Parkside Kings - was found during the search of 172 Minetta Road; and (2) Riley was a "high level member of Chip Set." This testimony explained why Detective Russo had initially thought defendant had fabricated his confession, in order to impress Riley and "look good on the street."

The manifest purpose of the limited gang references in the State's case was to show Riley's, not defendant's, link to gang activity. This was relevant, in turn, to show why police thought defendant was initially lying, and also to show why defendant would have been compelled to turn himself in, for fear of retribution from Riley's associates. According to Detective Russo, defendant had specifically told him, "if Malik Riley goes to jail for something that [he] did, he wouldn't even be able to walk the streets." As this evidence was not used improperly to show defendant's propensity to commit the crime, but rather was used to show defendant's motivation for turning himself in, no violation of the "anti-propensity" precepts of N.J.R.E. 404 occurred here. As Evidence Rule 404(b) instructs, proof of other wrongs may be admitted for "other purposes" than propensity "when such matters are relevant to a material issue in dispute." Ibid. Such is the case here.

We likewise reject defendant's argument that exclusion of these proofs, sua sponte, was mandated by Evidence Rule 403. As we have already noted, the evidence was relevant under Evidence Rule 401 to support the notion that Riley was a dangerous person and that defendant therefore had reason to fear retribution if he did not admit his involvement in the crime and clear Riley's name.

In fact, the contraband seized from the house actually supported defendant's theory that Riley was the true perpetrator. In his summation, defense counsel pointedly argued that Riley committed the robbery, reminding the jury that Riley lived at 172 Minetta Road and that the house was well-known to the police. Defense counsel specifically drew the jury's attention to "the .38 caliber bullets[] [and] . . . three live rounds found underneath the bed." Defense counsel then stated:

There's also found in the attic, right above Kason Walter's bedroom, another semiautomatic pistol and knap sack with two hundred rounds of ammunition. I mean, this house is loaded with ammunition, this house where Malik Riley lives. The evidence here supports the conclusion that Malik Riley is, was the robber with Hopeton Brown on January seventh. And I would say to you, the conclusion should be that Franklin Township police officers arrested the right two people right then and there, on January seventh.

By contrast, the only mention that the assistant prosecutor made in his summation about the evidence recovered at Riley's house was that the police recovered a gun matching the description of the one used in the robbery under a sofa cushion in the basement, a place where defendant confessed he had hidden it. The State's summation was otherwise devoid of any references to anything seized from 172 Minetta Road, or any mention of gang activity.

In sum, because defendant never objected to this evidence at trial, and instead sought to use it to support his own case, and because the evidence was not unduly prejudicial to defendant, there was no plain error in the judge admitting these proofs.

V.

Lastly, we consider defendant's contention that his sentence is excessive. We note that defendant moved prior to sentencing for his first-degree robbery conviction to be downgraded to a second-degree crime. In support of that motion, defendant argued that: (1) he had not contemplated "serious harm" to the victim; (2) his criminal record consisted of only one juvenile adjudication for which he received probation; (3) he had been under the influence of "more mature" co-defendants; and (4) he had cooperated with police. At the sentencing hearing, defense counsel argued these same points as mitigating factors.

We are satisfied that Judge Coleman had ample grounds to reject defendant's motion for a downgrade and also to reject the considerations proffered by defense counsel as mitigation factors. The proofs readily contradict defendant's claim that he never "threatened serious harm" to Shamary, who was accosted at gunpoint without provoking anyone to do so. The record also fails to support defendant's claim that he was substantially influenced by others to take part in the robbery. Lastly, defendant's request for leniency based upon supposed cooperation is discredited by his recantation of his confession and his refusal to testify against Hopeton Brown.

Although we agree with defendant that his juvenile record, which included non-custodial dispositions for immoral behavior and rioting, is not extensive, the totality of sentencing factors here amply justify his twelve-year sentence on a first-degree offense that exposed him to up to a twenty-year term. N.J.S.A. 2C:43-6(a)(1). The sentence was warranted even if defendant's juvenile record is not treated as an aggravating factor. The two concurrent sentences for the lesser charges are also reasonable.

On the whole, we discern no manifest injustice in the sentence and in the application of the mandatory 85% parole disqualifier under NERA. See State v. Roth, 95 N.J. 334, 363-64 (1984).

Affirmed.

Although no possessions were taken from the victim, the robbery statute encompasses both force used in an attempted theft as well as a theft that is completed. See N.J.S.A. 2C:15-1; State v. Schenck, 186 N.J. Super. 236, 240 (Law Div. 1982). Consequently, we shall refer in this opinion to the "robbery" despite the fact that the armed attempt to take the victim's property was unsuccessful.

Defendant's date of birth is August 5, 1987.

Despite their common surname, Hopeton Brown is no relation to defendant.

The house at 172 Minetta Road was owned by Riley's grandmother, Olga Simpson.

Shamary later testified at trial that he had told the officers that he could not identify either man because, "I didn't see their face[s]." Sinkfield, on the other hand, testified that he told police that Hopeton Brown, who was still wearing the black team logo jacket, was indeed the same man he had seen near the apartment complex. As for Riley, Sinkfield told the police he was not sure if Riley was the same man he had seen wearing a camouflage jacket. However, Sinkfield did state that Riley did "generally fit the physical appearance" of the man he had seen earlier.

For sake of clarity, we refer to the grandfather as "Ernest Brown" to distinguish him from defendant and from Hopeton Brown.

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

At a subsequent pretrial hearing concerning the waiver, Ernest Brown testified that, although he had signed the waiver form, he did not understand what Detective Albani was telling him, because "[he is] not a student of law, per se." Ernest Brown also claimed that no one told them at the police station that he and his grandson had a right to stop the questioning, or a right to get an attorney. Ernest Brown said he was concerned by what he heard his grandson telling the detective, but he did not know he could stop the interview. He also contended that he did not feel capable of giving his grandson legal advice.

Even though he was not charged with the robbery, Riley was charged with obstructing justice and related crimes, based on various activities connected with the premises at 172 Minetta Road.

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

The statement identified six of those factors in favor of waiver, including the serious nature of the offense (factor one), the need for deterrence (factor two), the maximum sentence and the length of time to be served (factor four), defendant's prior record, including two prior juvenile violations (factor five), trial considerations, including the likelihood of conviction (factor six), and the victim's input (factor seven).

See discussion Point III, infra, at pages 27 to 33.

Although defendant argues that the State also informed the jury that 172 Minetta Road was a "gang house," the pertinent transcript citation defendant quotes in his brief actually refers to a colloquy, outside the jury's presence, in which the judge ruled that the State could not make any gang references because it lacked evidence supporting a gang theory.

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A-0849-06T4

October 16, 2008