STATE OF NEW JERSEY v. STEPHEN T. LEZAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0348-07T40348-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN T. LEZAN,

Defendant-Appellant.

_______________________________________

 

Argued September 21, 2009 - Decided

Before Judges Rodriguez and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-11-0426.

Lon Taylor, Assistant Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Taylor, of counsel and on the brief).

Bennett A. Barlyn, Assistant Prosecutor, argued the cause for respondent (J. Patrick Barnes, Hunterdon County Prosecutor, attorney; Mr. Barlyn, of counsel and on the brief).

PER CURIAM

Defendant Stephen T. Lezan appeals from the denial of his motion to suppress his statement, contending that the police failed to properly respond to his inquiry about the procedure to obtain a lawyer. Our review of the record indicates that the officer provided defendant with a reasonably accurate response to the question and that the inquiry was not an equivocal request for counsel. We affirm.

On June 27, 2006, defendant entered a neighbor's home, proceeded to the bedroom, and opened a dresser drawer; he was then confronted by the neighbor who held him at gunpoint until the police arrived. Defendant was arrested for burglary. The neighbor had previously found some money and guns missing from their home and suspected defendant in those thefts.

At the police station, defendant was given his Miranda rights, and he signed a Miranda card waiving those rights. At the Hunterdon County Prosecutor's Office prior to questioning, a detective confirmed with defendant that defendant had been given his Miranda rights at the police station. The Miranda rights were then given to defendant again. The transcript of the statement at the Prosecutor's Office indicates that immediately following the administration of these rights, the following dialogue took place between defendant, the police officer, and the detective.

DS: Do you wish to ah, waive these rights and, and talk to us?

SL: Ye-yeah I guess so.

KB: Okay.

SL: Now it, how does it work if I wanted to have an attorney here?

KB: Okay. Well yah [sic] (you?) have to less [sic] (let?) us know is that you want to have an attorney present and we'll pretty much stop the questioning at that time.

SL: And oh, I mean, they won't come here now and . . . would they come here right now? Yeah, I mean like . . .

KB: No that would be set off to another time.

SL: Okay. (inaudible)

Defendant then proceeded to give the officer a statement admitting to taking some money and guns from the house on prior occasions. Defendant was thereafter indicted for two counts of second-degree burglary, N.J.S.A. 2C:18-2; two counts of third-degree burglary, N.J.S.A. 2C:18-2; and two counts of third-degree theft, N.J.S.A. 2C:20-3.

At the plenary hearing on his motion to suppress the statement, defendant acknowledged his signature on the Miranda card. His understanding of the exchange with the detective was explained in the following line of questioning:

Q. At the time you made the statement that's been referred to, how does it work, why did you ask that question?

A. Because I wanted to know how I could go about getting an attorney to represent me.

Q. And what did you understand the response of Detective Burd to mean?

A. That I couldn't get one at that point in time.

Q. And when you said -- when he said to you, "No, that would be put off to another time," what did that mean to you?

A. I thought that eventually, I would be able to get the lawyer and then proceed that way.

Q. And when you said, "Okay," do you recall what you were indicating when you said okay?

A. That okay, I would wait to arrange for the lawyer.

Q. At that point, why did you proceed to answer the questions that were asked?

A. They never specified how long it would take for a lawyer to come or for me to call to arrange to get one of my own. So, you know, I felt that I couldn't have one at that point in time, that it would have to be taken care of later.

Defendant further testified that he was under the influence of heroin when he gave the statement.

The trial court denied defendant's motion to suppress, finding that defendant's waiver of his Miranda rights was "voluntary, knowing and intelligent." He noted that the information provided by the detective was accurate and that defendant did not follow up with any further questions or statements that would indicate he was confused, had further questions, or required an additional explanation. The trial court also considered the colloquy in the context of the following circumstances:

Defendant is 31 years of age. He attended college for one and a half years and is clearly an intelligent, articulate individual. The questioning took place at a reasonable time and for a reasonable duration. (11:30 a.m. to 12:20 p.m.). While Defendant testified that he was under the influence of heroin at the time he gave his statement, it is not apparent from a review of the video. He gave responsive, articulate answers to the various questions. It should also be noted that this was not his first contact with the criminal justice system. He had previously been arrested in Newark, New Jersey, during the summer of 2005, at which time he was also given Miranda warnings.

Pursuant to a plea agreement, defendant thereafter pled guilty to the two second-degree burglary counts and the two third-degree burglary counts in exchange for a dismissal of the two theft counts and the State's recommendation for an aggregate sentence not to exceed six years subject to the eighty-five percent parole bar under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The trial court sentenced defendant to an aggregate prison term of five years subject to NERA.

On appeal, defendant raises the following contention:

POINT I

SINCE THE POLICE FAILED TO CLARIFY AND INACCURATELY RESPONDED TO DEFENDANT'S QUESTION: "NOW IT, HOW DOES IT WORK IF I WANTED TO HAVE AN ATTORNEY HERE," THE TRIAL COURT'S DECISION DENYING THE SUPPRESSION OF DEFENDANT'S SUBSEQUENT STATEMENT SHOULD BE REVERSED.

The State disputes the merits of defendant's argument and also contends that defendant failed to preserve the right to appeal the decision on the motion to suppress.

At the outset, we will address whether the merits of the trial court's decision on the motion to suppress is properly before us. Generally, once a defendant pleads guilty, he may not contend on appeal "that the State violated his constitutional rights prior to the plea," including his right against compulsory self-incrimination. State v. Crawley, 149 N.J. 310, 316 (1997). One exception to this rule is set forth in Rule 3:9-3(f) which allows a defendant, with the consent of the State, to enter a conditional guilty plea reserving the right to appeal the trial court's ruling on a pretrial motion.

In this case, defendant's written plea agreement, signed by defendant, the defense attorney, and the prosecutor expressly states that "defendant reserves right to appeal decision on motion to suppress statement." However, at the time the plea was entered on the record, the following colloquy took place:

COURT: The only question I have on the appeal, it says except defendant reserves the right to appeal decision on motion to suppress statement, and if the State is -- there is no qualifying language, and if I read this without anything else, I'd assume that that was a negotiated term of the plea agreement.

DEFENSE COUNSEL: My understanding, and perhaps this is -- is simply that defendant must reserve the right in this situation to -- and it's nothing that we negotiated. It's just that we're not [sic] reserving that right.

COURT: That's all I think -- do we need -- is that --

PROSECUTOR: Correct. Right.

COURT: The transcript reflects what --

PROSECUTOR: Right.

COURT: -- was placed on the record.

PROSECUTOR: The defendant's understanding of the law, preserving his right to appeal, but it's nothing the State has agreed to or consented to.

COURT: Okay. And I think just having that on the record --

DEFENSE COUNSEL: Thank you.

COURT: -- should be sufficient. Okay. If we could have the defendant sworn, please.

While both the defense attorney and the prosecutor stated that the State had not agreed to the reservation, the record is ambiguous on whether or not they thought that defendant was reserving this right, despite the State's lack of consent. Most importantly, there is no statement on the record indicating that defendant understood that the language in the written plea agreement was ineffective and that he would be unable to appeal the trial court's ruling on his statement.

The results of a plea agreement should not "disappoint the reasonable expectations of either" the State or defendant. State v. Warren, 115 N.J. 433, 443 (1989) (quoting State v. Thomas, 61 N.J. 314, 321 (1972)). "However, although notions of fairness apply to each side, the State as well as the defendant, the defendant's constitutional rights and interests weigh more heavily in the scale." Ibid.

In this case, to deny defendant the right to appeal the denial of his motion to suppress would be contrary to his reasonable expectations under the plea agreement for the following reasons: the written plea agreement signed by the State, the defense attorney, and defendant clearly provided defendant with such a right; the discussion on the record did not clearly state that an appeal of the trial court's ruling was prohibited because the State had not consented; and the record fails to indicate that defendant was told that, despite the reservation in the written plea agreement, he indeed would not be able to reserve this right. Any ambiguity in the record on whether the right was reserved, we resolve in defendant's favor since a constitutional right is implicated. See ibid.

On the merits of the appeal, we affirm for substantially the reasons set forth by Judge Mahon in his written decision. At issue is defendant's privilege against self-incrimination applicable to persons subject to custodial interrogation as set forth in State v. Miranda, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706 (1966). A statement made by a defendant while in custody is not admissible unless the defendant has provided a "knowing, intelligent, and voluntary waiver of Miranda rights." State v. Messino, 378 N.J. Super. 559, 576 (App. Div. 2005).

When a defendant makes a statement that presents an equivocal request for counsel, that statement must "be interpreted in a light most favorable to the defendant." State v. Chew, 150 N.J. 30, 63 (1997). As the Court has stated: "When a suspect makes a statement that arguably amounts to an assertion of Miranda rights and the interrogating agent recognizes that the statement is susceptible to that construction, questioning should cease and the police should inquire of the suspect about the correct interpretation of the statement." Ibid.

Not every mention of an attorney in this context, however, constitutes an equivocal request for an attorney. See State v. Messino, supra, 378 N.J. Super. at 578 (concluding that defendant's inquiry, "do you think I need a lawyer," made to a law enforcement officer during a break in questioning was not a request for counsel). "An equivocal invocation occurs where the suspect's statement or question appears to contemplate an invocation, as opposed to simply seeking a better understanding of the rights." David M. Nissman & Ed Hagen, Law of Confessions 6.25 (2d ed. 1994).

Here, defendant's statement was not an equivocal request for counsel, but rather was an inquiry about the procedure in the event he were to request counsel. That procedure was explained to him. As the trial court found, defendant is "an intelligent, articulate individual." Defendant asked no further questions nor made any other statement that could be interpreted as an attempt to request counsel. As a result, the trial court correctly denied his motion to suppress his statement.

 
Affirm.

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

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A-0348-07T4

October 5, 2009