STATE OF NEW JERSEY v. EDWIN PATILLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1647-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWIN PATILLO a/k/a EDWARD JOHNSON,

STEVEN ROLLINS and EDWARD PATILLO,

Defendant-Appellant.

______________________________________

August 27, 2013

Submitted March 20, 2013 - Decided

Before Judges Grall, Simonelli and Accurso.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

Indictment No. 08-05-1248.

Joseph E. Krakora, Public Defender,

attorney for appellant (Michael C. Kazer,

Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County

Prosecutor, attorney for respondent (Lauren

S. Kirk, Special Deputy Attorney General/

Acting Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

A jury found defendant Edwin Patillo guilty of use of another's personal identifying information, N.J.S.A. 2C:21-17.2a (count one); tampering with public records or information, N.J.S.A. 2C:28-7a(1) (count two); and falsifying or tampering with records, N.J.S.A. 2C:21-4a (count three). The judge merged defendant's convictions under count one and three, and he imposed a fifteen-year extended term with a seven-and-one-half-year term of parole ineligibility on count one and a concurrent five-year term of imprisonment on count two.

On a prior appeal, a panel of this court remanded for supplementation of the record and reconsideration of defendant's motion to suppress physical evidence seized at the time of his arrest the panel's concern was inconsistencies between the testimony of the officers involved in the investigation and an affidavit submitted to obtain a warrant authorizing the search of a leather case seized at the time of defendant's arrest. State v. Patillo, No. A-1734-08 (App. Div. July 22, 2010) (slip op. at 23-25). The panel further directed the judge to consider whether any illegality in the search tainted and required suppression of defendant's statements. Id. at 24-25. The panel did not address the other issues defendant raised on appeal, id. at 26, because they could well be mooted by the determination on remand.

On remand, the trial judge conducted a testimonial hearing, addressed the inconsistencies and concluded that the suppression motions were properly denied. Defendant now appeals, raising the issues previously presented and contending that the court misapplied the law on remand. The issues before us are as follows:

I. THE DEFENDANT'S CONVICTIONS

SHOULD BE REVERSED BECAUSE THE TRIAL COURT FA[I]LED TO APPLY APPROPRIATE FOURTH AMENDMENT CRITERIA IN ITS FINDINGS AT THE REMANDED HEARING DENYING DEFENDANT'S MOTION TO SUPPRESS.

II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN LIMITING DEFENSE COUNSEL'S ABILITY TO CROSS-EXAMINE LEON HOPEWELL BECAUSE, CONTRARY TO THE PROSECUTOR'S REPRESENTATIONS, HOPEWELL WAS UNDER ARREST, AND THIS RESULTED IN A "HOLD" OVER THE WITNESS WHICH THE DEFENDANT WAS ENTITLED TO EXPLORE.

III. THE DEFENDANT'S UNRECORDED ORAL STATEMENTS MADE TO DETECTIVE TERRELL AT THE EGG HARBOR POLICE STATION ON SEPTEMBER 11, 2005, SHOULD HAVE BEEN SUPPRESSED BECAUSE THE DEFENDANT WAS NEVER ADVISED THAT HE WAS BEING QUESTIONED ABOUT CRIMES THAT HAD ALLEGEDLY OCCURRED ON MARCH 31, 2004, AND BECAUSE THE DEFENDANT WAS IN CUSTODY AND NOT ADVISED OF HIS MIRANDA RIGHTS.

IV. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL.

A. THE DEFENDANT'S MOTION FOR A

JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED BECAUSE THE STATE ONLY PRODUCED SPECULATIVE EVIDENCE OF GUILT.

B. THE DEFENDANT'S POST-VERDICT MOTION

FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND RESULTED IN A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.

V. THE DEFENDANT'S RIGHT TO A FAIR

TRIAL WAS PREJUDICED BY MISREPRESENTATIONS MADE BY THE PROSECUTOR IN SUMMATION CONCERNING THE DOCUMENTS SEIZED AFTER THE DEFENDANT'S ARREST ON SEPTEMBER 11, 2005. (NOT RAISED BELOW).

VI. THE 15 YEAR CUSTODIAL SENTENCE WITH 7 1/2 YEARS OF PAROLE INELIGIBILITY IMPOSED ON THE DEFENDANT'S CONVICTION ON COUNT ONE FOR USING THE PERSONAL IDENTIFYING INFORMATION OF ANOTHER WAS MANIFESTLY EXCESSIVE.

A. THE TRIAL COURT ABUSED ITS

DISCRETION IN IMPOSING AN EXTENDED TERM SENTENCE.

B. IMPOSITION OF AN EXTENDED BASE TERM

OF 15 YEARS WITH 7 1/2 YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE.

I

The charges resulting in the convictions at issue here were based upon defendant obtaining a driver's license bearing his photograph and the name of Leon T. Hopewell. The State presented evidence that defendant accomplished that by applying for a duplicate license in Hopewell's name with a birth certificate, social security card, and bank card in Hopewell's name and a bill mailed to Hopewell. The documentary evidence supporting the charges records stored in the Motor Vehicle Commission's (Commission) database was uncovered during an investigation initiated by the Commission on July 25, 2006, ten months after defendant's September 11, 2005 arrest and interrogation.

On July 25, 2006, Leon T. Hopewell, who had not previously obtained a driver's license with a digital photograph, went to a motor vehicle agency to renew his license. At the final step of the process, the clerk noticed that the Commission's database already included a digital photograph associated with Hopewell's license. The photograph was of defendant.

An investigator employed by the Commission, James Whittaker, Jr., was assigned to investigate and he contacted the Atlantic County Prosecutor's Office. At trial, Whittaker explained and exhibited the records stored on the Commission's digitalized database and provided color printouts of the computerized records and a photocopy of the March 31, 2004 application that led to the issuance of the driver's license with Hopewell's name and defendant's photo that day.

The application reflected that the applicant obtained the license by presenting a birth certificate, social security card, bank card and bill mailed to the address stated on the license. Whittaker also found documents demonstrating that sixteen days earlier, on March 15, 2004, defendant had obtained an identification card from the Commission in his own name a non-driver's license identification card. Both the license in Hopewell's name and the non-driver's identification card bore the same address and defendant's photo.

As previously noted, the search and custodial interrogation at issue on this appeal occurred on the date of defendant's arrest, September 11, 2005. On that day, defendant was arrested on a warrant issued on a charge that he had passed a bad check. He had gone to a restaurant with Cynthia Shepperson in Pleasantville and was recognized by an officer who had a flyer issued by the Egg Harbor Police Department giving notice of the outstanding warrant and displaying defendant's photo. The officer, employed by the Atlantic County sheriff's office, contacted the Pleasantville and Egg Harbor police.

After defendant and Shepperson left the restaurant and got into the car Shepperson was driving, Detective Taggart of the Pleasantville Police Department stopped them. Defendant was not in possession of the driver's license issued on March 31, 2004, in Hopewell's name, and the only copy of the license ever found was the image on the Commission's database.

During the stop, however, no evidence tending to link defendant with the license issued in Hopewell's name and with defendant's digital photo on March 31, 2004, was found. Defendant first told Detective Taggart his name was Leon Hopewell. Detective Taggart, thinking otherwise, asked defendant to get out of the car. As defendant complied, the detective saw an open binder in the rear seat of the car with a photo ID protruding from a pocket in the binder. While the detective was opening the rear door to get the photo ID, defendant said his name was Edwin Patillo. The ID was an employee-identification card issued by a local hospital; it had a photo of defendant and Leon T. Hopewell's name. The binder also held Hopewell's birth certificate, social security card, bank card and a utility bill mailed to him. Shepperson denied ownership of the binder and said it belonged to defendant.

Officers from the Egg Harbor police force, who had come to the scene, transported defendant to their station. Shepperson was allowed to leave, and Detective Taggart took the binder. He intended to give it to the officers who had come for defendant, but they left before he gave it to them. Consequently, Detective Taggart called Detective Sydney L. Terrell of Egg Harbor, the officer who signed the warrant for defendant's arrest. Because he wanted the binder, Detective Taggart brought it to him. During his testimony at the suppression hearing held a year later, Detective Taggart testified that he thought he put the binder in a brown paper bag before delivering it, but he was not certain. He recalled that he looked at nothing other than the employee-identification card, which was in one of the "slots" for cards, and the page the notebook was opened to listing names and personal identifiers.

On defendant's prior appeal, the panel determined that the employee-identification card was in plain view and that card and the binder were lawfully seized. Patillo, supra, slip op. at 20-22. The discrepancies in the testimony that led the panel to remand related to whether Detective Terrell examined the contents of the binder before he interviewed defendant on September 11, 2005, and applied for the warrant authorizing a search of the contents on October 13, 2005.

During the April 2008 hearing on defendant's motion to suppress the statements he made to Detective Terrell on September 11, 2005, Detective Terrell acknowledged that he asked defendant about "the information that [he'd] been supplied wherein he indicated his name was Leon Hopewell[.]" He further acknowledged that he had been made aware of "items that had been seized from the [d]efendant or vehicle the [d]efendant was in that had, in fact, identification or documents pertaining to a Leon Hopewell[.]" Additionally, the prosecutor asked defendant if he could "describe for the court . . . what those tangible objects were that [he] had been made aware of and have been given by or had you been given those by the Pleasantville Police Department that initially stopped the [d]efendant[.]" In responding to that question, the detective mentioned the hospital employee-identification card, social security card, birth certificate and Commerce debit VISA card in the name of Leon Hopewell. At the suppression hearing, Detective Terrell had testified that Detective Taggart told him about the bank card.

During the hearing on the admissibility of defendant's statements, the prosecutor asked Detective Terrell if he had questioned defendant about how he came to be in possession of "those items and/or whether or not or why he had used or given the police the name of Leon Hopewell when he was first stopped[.]" In response to that compound question, the detective said, "I did." On cross-examination, he explained that he asked defendant about using Hopewell's identifiers because defendant had the employee-identification card and Hopewell's social security card and birth certificate. He further stated that those papers were in the bottom of the bag Detective Taggart delivered, not in the leather binder.

With respect to discrepancies between the testimony and the affidavit submitted for the search warrant, Detective Terrell acknowledged that he included an assertion that Detective Taggart searched the binder for a gun because he assumed that Detective Taggart had done that. In response to questions posed by the judge, the detective said the information he included in the affidavit was based upon what Detective Taggart told him and the documents that were loose on the bottom of the bag.

On remand, Detective Terrell was the only witness. He testified that he looked in the bag Detective Taggart gave him and saw papers but did not take them out of the bag. He spoke to defendant about the items in the bag, but he did not have them with him during the interview. The credit card was at the bottom of the bag with other loose papers, and Detective Taggart had told him about the employee-identification card and the bank card. He further said that defendant told him he used Hopewell's identifying information, and Detective Taggart had told him about seeing the list of names and social security numbers. Defense counsel cross-examined the detective extensively, probing numerous inconsistencies she perceived in the testimonies he gave at the suppression hearings, trial and the remand hearing.

After discussing the testimony, the judge stated that he was satisfied beyond a reasonable doubt that the detective had not looked inside the binder or notebooks before he obtained the warrant and that the inconsistencies were the product of a mistake and did not alter the sufficiency of the bases for probable cause asserted in the affidavit for the warrant. The judge further concluded that even if he found the warrant invalid and suppressed the evidence, it would not have affected the trial or the admissibility of defendant's statements.

II

Appellate courts, reviewing decisions to suppress evidence, accept findings that are adequately supported by sufficient credible evidence and consistent with a proper application of the law to the facts. State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2012). State v. Locurto, 157 N.J. 463, 470-75 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). Because the judge has had the opportunity to observe the testimony, we give special deference to findings on credibility.

In this case there is no need to resolve the question whether the judge erred in determining the legality of the police conduct that led to the acquisition of Hopewell's social security card, birth certificate, bill and bank card. "Under either state or federal law," evidence secured after an illegal search is not suppressed if the "authorities have obtained the evidence by means that are sufficiently independent to dissipate the taint of their illegal conduct." State v. Johnson, 118 N.J. 639, 653 (1990).

There is no question that the evidence supporting defendant's convictions was uncovered months after the search during an independent investigation initiated by agents of the Commission. That investigation was wholly unrelated to defendant's arrest. It was triggered by Hopewell's application for a renewal of his license, which led a motor vehicle agent to discover that someone had obtained a driver's license in Hopewell's name bearing a photograph that was not one of Hopewell.

To the extent that the Commission's investigator's inquiry may have been advanced by learning that defendant had used Hopewell's identity to obtain a job with a local hospital and an employee-identification card, that information was not tainted. As the panel held on defendant's prior appeal, the employee-identification card was in plain view and properly seized at the time of his arrest. For the same reason, Detective Terrell's questioning of defendant about his possession of the employee-identification card was not tainted.

The only evidence arguably obtained as a consequence of a search of the materials held in the binder, conducted pursuant to the warrant, were the bill, birth certificate, social security card and bank card. As previously noted, the application in the Commission's records showed that the license with Hopewell's name and defendant's picture was issued because Hopewell's bill, birth certificate, bank card and social security card were presented. Thus, evidence that defendant possessed those items added some weight to the State's proofs. In our view, however, there is not enough additional weight to permit us to conclude that the admission of those corroborating documents had any capacity to lead the jurors to reach a verdict they would not otherwise have reached. R. 2:10-2. We have no doubt that the verdict would have been the same if that evidence had not been admitted at defendant's trial.

III

Defendant's claim that the judge erred in denying his motions for a judgment of acquittal and a new trial have no greater merit than his claim that his convictions should be reversed based on the illegality of the search.

A motion for a judgment of acquittal may not be granted if the evidence, "giving the State the benefit of all its favorable testimony as well as all of the favorable inferences," is adequate to permit "a reasonable jury" to find defendant guilty of the crimes beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459 (1967). The evidence in this case met that standard.

To establish defendant's guilt of using another's personal identifying information the State had to prove that defendant

in obtaining or attempting to obtain a driver's license, birth certificate or other document issued by a governmental agency which could be used as a means of verifying a person's identity . . . knowingly exhibit[ed] . . . a document or other writing which falsely purport[ed] to be a . . . birth certificate or other document issued by a governmental agency or which belong[ed] or pertain[ed] to a person other than the person who possesses the document.

[N.J.S.A. 2C:21-17.2a.]

The Commission's records and Whittaker's testimony about the process by which a person's digital photo is placed on a driver's license established each of those elements. The records showed that an applicant submitted a birth certificate and social security card to obtain a license that bore Hopewell's name and defendant's photo.

To prove defendant tampered with public records, the State had to establish that he "[k]nowingly ma[de] a false entry in, or false alteration of, any record, document or thing belonging to, or received or kept by, the government for information or record . . . ." N.J.S.A. 2C:28-7a(1). The Commission's records established an alteration defendant's photo on a driver's license in Hopewell's name. The inference that defendant knowingly made that alteration by presenting documents establishing that he was Hopewell and presenting himself for photographing is not only reasonable, on this record it is inescapable.

Finally, to prove defendant's guilt of falsifying or tampering with records the State was required to prove that defendant "falsifie[d] . . . or utter[ed] any writing or record knowing that it contains a false statement or information, with purpose to deceive or injure anyone . . . ." N.J.S.A. 2C:21-4a. The employee-identification card defendant obtained from the local hospital alone was sufficient evidence to permit the reasonable inference that he purposely deceived his employer about his identity.

Given the strength of the evidence, defendant's contention that the verdict was so clearly against the weight of the evidence as to constitute a manifest injustice has no merit. R. 2:10-1. In the face of the Commission's records of the application for the March 31, 2004 license, the only inference the jurors had to draw was a natural, logical and reasonable one that defendant's picture appeared on the license issued in Hopewell's name because defendant went to the counter in the motor vehicle agency with the application and posed for the digital photo that became part of the license and the Commission's records. Apart from defendant's denial, there was no evidence suggesting otherwise.

IV

The remaining arguments presented on this appeal have insufficient merit to warrant discussion beyond the brief comments that follow explaining why we reject the claims. R. 2:11-3(e)(2).

Defendant presents only one argument in support of his claim that the statements he made during custodial interrogation should have been suppressed that the detective did not advise him that he would be questioned about crimes committed on March 31, 2004. As discussed above, defendant was not under suspicion for fraudulently obtaining a driver's license in Hopewell's name until many months after his interrogation. He could not be advised of what was not known, and even if the detective suspected identify theft, there is no obligation to inform a person under interrogation of "suspect" status unless a criminal complaint or warrant has been filed. See State v. Nyhammer, 197 N.J. 383, 407-08, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009); State v. A.G.D., 178 N.J. 56, 68 (2003).

Defendant's claim of improper limitation on his cross-examination concerns Hopewell's testimony. On direct-examination, the prosecutor asked Hopewell if he had given defendant permission to have his picture put on a driver's license in Hopewell's name. On the prosecutor's objection, however, the judge precluded defense counsel from asking Hopewell if the police or prosecutor had told him he could be in trouble for having allowed defendant to use his identity. Through that line of questioning, defense counsel intended to show that Hopewell had a motive for testifying on behalf of the State.

This limitation on cross-examination about the witness's bias and motive was an abuse of discretion. See State v. Mazur, 158 N.J. Super. 89, 104-05 (App. Div.) (finding that the trial court abused its discretion in precluding the defense from exploring witness bias on cross), certif. denied, 78 N.J. 399 (1978). We are, however, confident, beyond a reasonable doubt, that the error could not have affected the outcome of this trial. State v. Castagna, 187 N.J. 293, 312 (2006); see also Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967). The judge took steps to cure the error.

In closing argument, defense counsel suggested that Hopewell's testimony for the State may have been motivated by fear. The prosecutor objected. Apparently rethinking his prior ruling limiting cross-examination on the point, the judge instructed the jurors that it was their responsibility to evaluate the witnesses' credibility and that defense counsel's argument was fair comment. He further advised that it was not material whether "Mr. Hopewell could have gotten into a jam" for allowing defendant to use his credentials, but assuming that Hopewell could have gotten in trouble it was for them to determine its relevance. Read as a whole and in the context it was made during defense counsel's argument about Hopewell's motives for giving testimony favorable to the State the judge's instruction on counsel's argument mitigated any risk of prejudice from the restriction on cross-examination. Defendant's claim of prosecutorial misconduct rests on the fact that the prosecutor's closing statement referenced utility bills found in defendant's binder, which post-dated the issuance of the driver's license in question. The prosecutor did not mention the dates on the bills, but he asked, rhetorically, "were the three documents that he presented on this date, who cares?" There was nothing improper or even arguably misleading about this argument. Defendant's claimed breach of a prosecutor's duty to point out unfavorable evidence in closing argument is based on a misunderstanding of the applicable law.

Defendant's only arguments with respect to his sentence are that the court "failed to adequately articulate on the record its reasons for not imposing the statutorily authorized minimum extended term" and not imposing the minimum period of parole ineligibility. The record does not support these claims. The judge began his statement of reasons by recognizing that the minimum extended term for a second-degree crime is five years, not ten, and that the maximum term is twenty. N.J.S.A. 2C:43-6a(2); N.J.S.A. 2C:43-7a(3); see also State v. Pierce, 188 N.J. 155, 169-70 (2006) (explaining the range). The judge further explained that in imposing the fifteen-year term and a seven-and-one-half-year term of parole ineligibility, he relied upon the three aggravating factors set forth in N.J.S.A. 2C:44-1a(3), (6) and (9). He further explained that the period of parole ineligibility was required because these aggravating factors so "substantially outweigh the mitigating factors," N.J.S.A. 2C:43-6b, that protection of the public warranted confinement for that period.

The judge's findings on and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009). Accordingly, we affirm the sentence.

Affirmed.