STATE OF NEW JERSEY v. ERICK R. GENTNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2932-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERICK R. GENTNER,

Defendant-Appellant.

___________________________________________________________

September 4, 2013

Submitted March 4, 2013 - Decided

Before Judges Graves and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Indictment

No. 09-02-0119.

Joseph E. Krakora, Public Defender, attorney

for appellant (Suzannah Brown, Designated

Counsel, on the brief).

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent (Jennifer

B. Paszkiewicz, Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

In a two-count indictment, defendant Erick R. Gentner was charged with third-degree residential burglary, N.J.S.A. 2C:18-2(a)(1) (count one); and third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count two). At trial, the court granted the State's motion to amend count two of the indictment to third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a). The jury convicted defendant of both counts.

At sentencing on October 8, 2010, the court identified two aggravating factors: the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court additionally identified two mitigating factors: there were substantial grounds to excuse or justify defendant's conduct, N.J.S.A. 2C:44-1(b)(4); and the defendant was willing to make restitution, N.J.S.A. 2C:44-1(b)(6). After merging count two into count one, the court sentenced defendant to a three-year prison term.

Defendant presents the following arguments on appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING MR. GENTNER'S MOTION TO SUPPRESS HIS STATEMENT.

POINT II

THE TRIAL COURT ERRED IN DENYING MR. GENTNER'S MOTION TO SUPPRESS EVIDENCE.

POINT III

THE TRIAL COURT ERRED IN ONLY INCLUDING THE NAME OF A DEFENSE WITNESS IN ITS CHARGE TO THE JURY ON PRIOR CONTRADICTORY STATEMENTS.

POINT IV

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL.

POINT V

THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. GENTNER (NOT RAISED BELOW).

We conclude from our examination of the record and the applicable law that defendant received a fair trial and an appropriate sentence. Accordingly, we affirm.

At a pretrial suppression hearing, Officer Andrew Ragati of the North Hanover Township Police Department testified he was involved in an investigation of a burglary on October 10, 2008. Ragati spoke with the victim, Jesse Kelly, who reported that his Xbox videogame console, controller, and several videogames were stolen from his residence.

According to Ragati, the apartment showed no signs of forced entry, and Kelly believed that defendant committed the offense, although he had no evidence to support his belief. Kelly estimated the items were removed from his apartment between 7:00 a.m. and 10:00 a.m. that morning.

Ragati testified he knew defendant "through community contacts" and "had a very good relationship with him." After checking defendant's apartment, Ragati located defendant in another apartment building. While Ragati was in the foyer of the building and defendant was on the second floor, approximately fifteen to twenty feet away, Ragati asked defendant, "What did you do?" Defendant responded, "Yeah, I did it." Ragati asked defendant "if he could get the stuff back," and defendant told Ragati it was in his apartment. Defendant then brought Ragati and another officer to his apartment and let them in. Defendant removed a black duffle bag from the closet, and the Xbox, controller, and games were inside the bag. Defendant was then placed under arrest.

At the conclusion of the hearing, the trial court denied defendant's motion to suppress his statement. The court found Miranda1 warnings were not required because defendant was not in custody. The trial court also denied defendant's motion to suppress the items seized from his apartment. The court found defendant invited the officers into his apartment, and no search occurred:

They just follow[ed] Mr. Gentner to get the stuff. There is no exploration of any other parts of the house. They don't gather any evidence. They're strictly following along with him at his invitation into his home to retrieve the items to return those items to the alleged victim. . . . Mr. Gentner led the officers into his home without objection and . . . Officer Ragati did use the word invited us to get the stuff . . . that's all that happened. . . . They didn't search anything else. They didn't go into any other parts of the house. They didn't violate the privacy and the sanctity of the home and it really wouldn't have been any different if they had waited outside and then let him go in and take the stuff out and bring it to the porch or . . . the landing area.

At trial, Kelly testified he spent approximately $950 on the Xbox, controller, and games. He further stated he "used to be friends" with defendant. However, he never gave defendant permission to enter his apartment when he was not home.

Ragati's trial testimony was substantially similar to his testimony at the suppression hearing. On cross-examination, Ragati admitted that his report regarding the incident did not indicate exactly what defendant told him.

Defendant did not testify, but defendant's neighbor, John Potter, testified on his behalf. According to Potter, he "observed a male walking from [an] alley from my back door area where I lived at carrying a black bag. . . . [T]he guy had a hoodie on and it was kind of warm." Potter further testified that the man was not defendant, but rather it was Michael Guerrara another man who lived in the complex. During cross-examination, the State questioned Potter regarding his statement to the police, indicating he saw the man on a "summer's day," even though the burglary took place in October.

Elizabeth Georgianna Earls, defendant's mother and the director of housing for the apartment complex, also testified on defendant's behalf. She said that Guerrara was a former tenant in the apartment complex, who moved in with defendant after being evicted.

In his first point, defendant argues the trial court erred in denying his motion to suppress his admission to Ragati. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (quotation marks and citation omitted). A motion court's findings of fact may be disturbed only when they are "so plainly unwarranted that the interests of justice demand intervention and correction." State v. Johnson, 42 N.J. 146, 162 (1964).

Defendant argues he was in police "custody from the moment that he made his initial incriminating statement" in response to Ragati's question. However, as the trial court recognized, Miranda warnings are required "'when an individual is taken into custody or otherwise deprived of his [or her] freedom by the authorities in any significant way and is subject to questioning.'" State v. Stott, 171 N.J. 343, 364 (2002) (alteration in original) (quoting Miranda, supra, 384 U.S. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726 (1966)). We must determine whether there was "'a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, and the status of the suspect.'" Id. at 365 (quoting State v. P.Z., 152 N.J. 86, 103 (1997)).

Here, defendant was approximately fifteen to twenty feet away from Ragati when he was asked, "What did you do?" Defendant responded, "Yeah, I did it." Thus, the trial court correctly concluded that defendant was not in custody, and Miranda warnings were not required.

Defendant next argues the trial court erred in denying his motion to suppress the stolen items seized from his apartment, because they were recovered "as a result of an unlawful warrantless entry." "A search . . . only 'occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.'" State v. Linton, 356 N.J. Super. 255, 258 (App. Div. 2002) (quoting U.S. v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94 (1984)). Here, defendant invited the officers into his apartment and showed them the location of the stolen items. We therefore agree that no search occurred and suppression of the physical evidence was not warranted.

In his third point, defendant argues the trial court erred "by instructing the jury how to evaluate prior contradictory statements of [Potter], a defense witness, but did not instruct the jury how to evaluate prior contradictory statements made by [Ragati]." Following defendant's conviction, counsel moved for a new trial based on the allegedly improper jury charge. During the motion for a new trial, the trial court rejected the argument that Ragati testified inconsistently.

In addition, during the charge conference, defense counsel asked the trial court if the jury instructions could be read "without any specific names" added. When the court specifically asked defense counsel if he objected to the model jury charge,2 counsel responded, "No, Your Honor." Because defendant did not object at trial, we review the charge for plain error, Rule 1:7-2, which is an error "clearly capable of producing an unjust result." R. 2:10-2. We must evaluate defendant's claim in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citing State v. DiFrisco, 137 N.J. 434, 491 (1994)).

In this case, the trial court correctly noted that Potter, not Ragati, provided inconsistent testimony, and properly included Potter's name in the model jury charge. Under these circumstances, we are satisfied that there was no error, much less plain error, by the trial court.

Defendant next argues that cumulative errors denied him the right to a fair trial. State v. Orecchio, 16 N.J. 125, 129 (1954). Because we find no error, the claim is without merit. R. 2:11-3(e)(2).

Defendant also challenges his sentence. "An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable." State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

In the present matter, there is sufficient credible evidence to support the trial court's findings regarding the aggravating and mitigating factors; the court correctly applied the sentencing guidelines set forth in the Criminal Code; and the court imposed a reasonable sentence. As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case.

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

2 Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994).