STATE OF NEW JERSEY v. ALBERTO SALAZAR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6235-03T46235-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERTO SALAZAR,

Defendant-Appellant.

_______________________________________

 

Submitted January 15, 2008 - Decided

Before Judges Fuentes and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 01-03-0349-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Steven M.

Gilson, Designated Counsel, of counsel

and on the brief).

Theodore J. Romankow, Union County

Prosecutor, attorney for respondent

(Jason Charles Matey, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for felony murder, N.J.S.A. 2C:11-3a(3) and second-degree robbery, N.J.S.A. 2C:15-1. The trial judge merged the convictions and sentenced defendant to the mandatory minimum term, thirty years of incarceration without possibility of parole. N.J.S.A. 2C:11-3b.

On appeal, defendant contends that statements he made to the police during an interview at headquarters, which were introduced into evidence at trial, were the product of "custodial interrogation" and inadmissible because he was not given the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We affirm substantially for the reasons stated by Judge Heimlich in his written decision dated January 12, 2007.

The question in this case is whether defendant was in custody. "The test of whether an individual is in custody for Miranda purposes is an objective test, which focuses on the totality of the circumstances." State v. Messino, 378 N.J. Super. 559, 576 (App. Div.), certif. denied, 185 N.J. 297 (2005). "[C]ustody must be determined based on how a reasonable person in the suspect's situation would perceive his circumstances." Yarborough v. Alvarado, 541 U.S. 652, 662, 124 S. Ct. 2140, 2148, 158 L. Ed. 2d 938, 950 (2004). The subjective views of the detainee or the interrogating officer are not determinative of custody. Id. at 663, 124 S. Ct. at 2148-49, 158 L. Ed. 2d at 950-51. "[C]ustody exists if the action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely." Messino, supra, 378 N.J. Super. at 576 (quoting State v. Coburn, 221 N.J. Super. 586, 596 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988)). The determination "is fact-sensitive." State v. Stott, 171 N.J. 343, 364 (2002). The relevant circumstances include "'the time and place of the interrogation, the status of the interrogator,'" and "whether a suspect knew that he or she was a focus of the police investigation." Id. at 365 (quoting State v. P.Z., 152 N.J. 86, 103 (1997)).

A detective who investigated the crime and interviewed defendant testified to the following at the pre-trial hearing on defendant's motion to suppress his statements. The victim of this crime lived in an apartment building in Elizabeth. Defendant lived and worked in the same apartment building. The victim was admitted to the hospital after defendant and the manager found her lying on the floor of her apartment.

The detective and other officers went to the apartment house to investigate later that day. The detective interviewed both defendant and the manager. Defendant told him that he had been in the victim's apartment earlier that day. She asked him to get her coffee and a bun, and he complied. Shortly thereafter, he went to the manager's apartment. The manager and the defendant both told the detective that they heard the victim yelling and went to her aid together. The victim's pocketbook was missing.

Defendant was with the police when they searched and found the pocketbook outside the apartment building in a bank of snow. The detective asked both the manager and defendant if they would be willing to come to headquarters the next day to give a statement. They both agreed.

The following day, the detective and another officer picked up the manager shortly after 9:00 a.m. to take her to headquarters. Defendant was outside working to remove snow and ice when they arrived. He was also outside when the police officers returned with the manager at about 2:00 p.m. He then went to headquarters with the officers in their car. Three officers interviewed him for about one hour in an interview room. He was permitted to smoke during the interview. He gave the officers information that was consistent with what he had said the night before. They asked him if he had any prior convictions, and he told them about a prior drug conviction. Defendant was calm and cooperative during the entire interview.

The detective asked him if he would take a polygraph, and he agreed. He said, "Sure." While defendant waited for the polygrapher to arrive, he was given something to eat and drink. The officers brought another resident of the apartment building into headquarters for an interview.

After the polygraph was done, the officer who conducted the test concluded that defendant was being deceptive when he responded to questions about the incident. He reported his conclusion to the detective.

The detective told the defendant about the results and gave him Miranda warnings. After acknowledging his receipt and understanding of the warnings, defendant waived his rights. He admitted that when he took the bun and coffee to the victim's apartment, he attempted to leave with her purse. They scuffled, and she fell to the floor.

The judge concluded that under these circumstances, including the fact that defendant was aware that the police had transported and returned the manager for a similar interview in the same way, defendant would have understood that he was free to leave and not in custody. The judge's findings are supported by substantial credible evidence, and the determination that defendant was not in custody when questioned at police headquarters is consistent with controlling legal principles. See State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005). We note that defendant does not contend that the interview prior to the Miranda warnings, which the trial court found was not "custodial interrogation," had any impact on his subsequent waiver of the right to remain silent after he received Miranda warnings. Cf. State v. O'Neill, 193 N.J. 148 (2007).

Defendant also contends that his sentence for felony murder is excessive. His argument is that the trial judge erred in declining to sentence him to a term appropriate for a crime of the second degree pursuant to N.J.S.A. 2C:44-1f(2).

Even if we were to conclude that a judge has the authority to impose a sentence appropriate for a crime of the second degree when the defendant is convicted of murder, we could not find that this sentence is the product of an abuse of the sentencing discretion afforded in N.J.S.A. 2C:44-1f(2). A sentence may be downgraded pursuant to N.J.S.A. 2C:44-1f(2) only if the judge is "clearly convinced" that the mitigating factors "substantially" outweigh the aggravating factors and that the "interest of justice" demands. State v. Megargel, 143 N.J. 484, 504 (1996). The reasons must be "'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." Id. at 505. The Supreme Court has directed trial judges to exercise "special caution" and maintain focus on the gravity of the crime when asked to downgrade a sentence for a crime that the Legislature has singled out for enhanced punishment. Ibid. Given that defendant was convicted of murder, which carries a minimum sentence of thirty years without possibility of parole, the judge did not err by denying his request for a sentence appropriate for a crime of the second degree.

Affirmed.

 
 

Judge Heimlich wrote the decision after a limited remand from this court for the limited purpose of reconstructing the record. A transcript of the testimony presented at the Miranda hearing was submitted on appeal.

The State does not argue that N.J.S.A. 2C:44-1f(2) does not apply when a defendant is convicted of murder.

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A-6235-03T4

 

February 6, 2008