STATE OF NEW JERSEY v. SYLVANUS K. ROBBINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SYLVANUS K. ROBBINS, a/k/a

KEITH ROBBINS, SYLVANIA KEITH

ROBBINS,

Defendant-Appellant.

____________________________

September 30, 2013

Submitted September 10, 2013 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-04-0872.

Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Kenneth Burden, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Sylvanus K. Robbins appeals from his conviction for two counts of unlawful possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7, and several other offenses, and from the aggregate extended term sentence of sixteen years in prison, half to be served without parole.1 On this appeal, defendant raises the following points of argument for our consideration:

I. THE COURT'S CORRECT DECISION, WHICH FOUND THAT DEFENDANT'S CONSENT TO SEARCH THE VEHICLE WAS NOT VOLUNTARY, LEADS INEXORABLY TO THE CONCLUSION THAT THE WEAPONS SEIZED IN THE SEARCH OF THE MOTEL ROOM, AND DEFENDANT'S STATEMENT, MUST BE SUPPRESSED AS FRUITS OF THE POISONOUS TREE.

II. THE COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A MISTRIAL BASED ON THE PROSECUTOR'S REFERENCES TO THE IMITATION FIREARM, WHICH THE MOTION COURT HAD ORDERED TO BE SUPPRESSED DURING PRETRIAL MOTIONS.

III. THE IMPROPER ADMISSION OF OFFICER SNUFFER'S TESTIMONY THAT HE HAD ARRESTED DEFENDANT AS A FUGITIVE FROM JUSTICE FROM NORTH CAROLINA WAS HIGHLY PREJUDICIAL AND DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL. (Raised In Part Below).

IV. THE TRIAL JUDGE FAILED TO INSTRUCT THE JURY AT ALL IN RESPECT OF THE POLICE'S FAILURE TO RECORD ANY SUCH STATEMENTS, AT THE END OF THE CASE, AND, DURING TESTIMONY, ERRONEOUSLY INSTRUCTED THE JURY THAT THERE WAS NO SUCH OBLIGATION, THEREBY DENYING ROBBINS A FAIR TRIAL. (Raised In Part Below).

V. DEFENDANT'S SENTENCE IS SEVERELY EXCESSIVE, PARTICULARLY BECAUSE HIS PRIOR RECORD, REMOTE IN TIME, BARELY QUALIFIED HIM FOR A DISCRETIONARY EXTENDED TERM.

Having reviewed the record, we find no merit in Points I through IV, and accordingly we affirm the conviction. In considering Point V, we cannot agree that the sixteen-year extended term sentence is excessive. However, the State concedes that a remand is required, because the trial court erred in imposing two extended term sentences, when N.J.S.A. 2C:44-5a(2) prohibits imposing more than one extended term. Accordingly, we remand for the limited purpose of resentencing to correct that error.

I.

We begin by addressing the suppression issues. This was the most pertinent evidence. Galloway Township Patrol Officer Ken Snuffer pulled over a Ford Taurus with North Carolina license plates, after observing the vehicle make an illegal U-turn. Defendant, the driver, appeared nervous and told Snuffer that he had no driver's license and could not produce the vehicle's registration or insurance card, because the car belonged to his girlfriend. He also claimed he could not recall his own birthdate or social security number, and he initially gave a false name. The female passenger claimed she did not know the driver's identity, beyond his nickname of "Akee."

After some further questioning, defendant gave his correct name and birthdate, and admitted that he had a North Carolina driver's license which was suspended. Snuffer ordered defendant out of the car and handcuffed him for the officer's protection, albeit telling defendant that he was "being detained, not under arrest."

Upon calling Dispatch, Snuffer received initial information that there were outstanding North Carolina arrest warrants for defendant, for burglary, kidnapping, and assault by strangulation. Police Department policy required that Dispatch confirm that information. While Dispatch was confirming the warrants, Snuffer sought and received defendant's written consent to search the car. Several back-up officers, who had arrived on the scene by that time, searched the vehicle and found an imitation handgun in the trunk. At that point, Dispatch called Snuffer and confirmed the outstanding North Carolina warrants, and Snuffer formally placed defendant under arrest as a fugitive.

While the police were searching the vehicle, defendant's girlfriend Crystal Deu, and her brother Keith Deu, arrived on the scene on foot. Corporal Joseph Picardi advised Crystal that he had found an imitation handgun in the car. She responded that she did not know who owned it, but said her brother sometimes carried a gun for his protection because he was a truck driver. She also told Picardi that the four of them were staying in two rooms at a nearby motel, and that she was the one who had rented the rooms. Based on "number one, the severity of the crimes that Mr. Robbins was wanted for out of North Carolina," plus the discovery of the imitation gun in the trunk and Crystal's statement that her brother carried a gun, Picardi wanted to search the motel rooms for weapons. Picardi asked Crystal for her consent to search. After being advised of her right to refuse consent, Crystal signed a consent form for the search. In the room, which Crystal identified as the one she was sharing with defendant, the police found a yellow duffle bag containing some women's toiletry items. Under the toiletries, they found a sawed-off shotgun, extra ammunition, and a stun gun.

According to Snuffer and Sergeant Hiltner, Snuffer read defendant his Miranda2 rights at the police station. In response, defendant told the two officers that he wanted to know what they were going to question him about before deciding whether to waive his right to remain silent. On being told that the police wanted to know if defendant knew anything "about a yellow duffle bag in [his] hotel room," defendant responded, "Oh, you mean the sawed-off, the one with the sawed-off?" Defendant then stated that the gun was old and rusty and told the police that back in North Carolina, he carried the gun for protection when he was riding a dirt bike in the woods. According to Hiltner, defendant's spontaneous admission came as a surprise:

[W]e didn't expect him to come out with the shotgun statement. He wanted to know what questions we were going to ask and I just told him I was going to ask him about the duffle bag and he stated with the sawed-off or about the sawed-off.

However, after providing that information, defendant declined to sign the Miranda waiver and declined to give a taped statement.

At the suppression hearing, defendant testified that he had no idea that there were outstanding warrants for his arrest. He stated that he and his girlfriend had come to New Jersey for a vacation and, that evening, had gone to the casinos to gamble. He testified that they stopped for pizza on the way back to the motel. He had no intention of driving, because his license was suspended, but he decided to drive a short distance to pick up Crystal, who had walked across the highway in the cold to make a purchase at a liquor store. He admitted to making a U-turn.

Defendant denied giving Officer Snuffer any false or incomplete information. He claimed that the officer kept him standing outside the car in the freezing cold for an extended period of time, and that he only signed the consent to search form because Snuffer threatened to have the car towed if he did not sign. Addressing the Miranda issue, defendant claimed it was about fifty degrees inside the police station, and he was feeling ill. He denied telling the police about the sawed-off shotgun in the duffle bag. He also denied owning a yellow duffle bag or seeing such a bag in either of the group's motel rooms.3

In an oral opinion placed on the record on April 8, 2010, Judge James Isman concluded that, although Officer Snuffer had a reasonable articulable suspicion to justify asking defendant for consent to search the car, he was "not satisfied beyond a reasonable doubt" that defendant's consent was voluntary. Therefore, he suppressed the evidence found in the car's trunk. The State has not cross-appealed from that portion of the court's decision and it requires no further discussion here.

However, Judge Isman also concluded that the search of the motel room was "completely attenuated from and separate and distinct from what happened on the highway with the vehicle." Therefore, he determined that the weapons found in the duffel bag and the statement defendant made at the police station were not the "fruits" of the invalid car search. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963). The judge reasoned that defendant was going to be arrested and questioned in any event because of the outstanding warrants.

Judge Isman credited the testimony of Snuffer and Picardi concerning the circumstances under which they obtained Crystal's consent to search the motel room. He found that the police had "reason to believe . . . that additional evidence of the previous crimes would be located in the motel room; more specifically, this defendant was a fugitive from serious charges" of a type in which a weapon might have been used. Relying on State v. Domicz, 188 N.J. 285, 305-06 (2006), the judge reasoned that the higher standards set forth in State v. Carty, 170 N.J. 632 (2002), for the police to request consent to search an automobile, did not apply to a request for consent to search a motel room. He found that Crystal voluntarily consented to the search, and that the search of a motel room rented in Crystal's name, with her consent, did not violate defendant's Fourth Amendment rights.

Finally, Judge Isman denied the Miranda motion, finding that defendant made a spontaneous and voluntary statement about the gun in the duffle bag. In so finding, the judge believed the police witnesses and found that defendant's testimony was not credible. The judge further ruled that the police did not violate Rule 3:17(a) in failing to tape record the statement, because they had not begun interrogating defendant at the time. Instead, the judge found that defendant "pretty much spontaneously indicated that, oh, you mean the sawed-off. I use that when I dirt-bike ride and it's all rusty and I use it for protection." The judge reasoned that, because the statement was spontaneous, it fell within the exception set forth in Rule 3:17(b)(ii). The judge also found that defendant refused "to go on tape" and that a defendant "can't circumvent Rule 3:17 by [his] own conduct." See R. 3:17(b)(iv).

Judge Isman therefore ruled that defendant's statements made at the police station did not violate Miranda or Rule 3:17(a), because they were made spontaneously and not as part of an interrogation. See R. 3:17(b). He found that the statements were "independent from and attenuated from the circumstances at the scene with regard to the trunk and the imitation handgun. Because this questioning all dealt with what was found in the room and the fact that [defendant was] a fugitive from justice."

On this appeal, defendant argues that the shotgun, the stun gun, and his statement to the police were all products of the initial, illegal search of the car and should therefore be suppressed under the "fruit of the poisonous tree" doctrine. See Wong Sun, supra, 371 U.S. at 485, 83 S. Ct. at 416, 9 L. Ed. 2d at 454. We reject this argument, substantially for the reasons cogently stated in Judge Isman's opinion.

To summarize, we agree that the search of the motel room, and defendant's statement, were sufficiently attenuated from the car search to insulate them from suppression. See Brown v. Illinois, 422 U.S. 590, 602-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 426-27 (1975). Defendant's reliance on State v. Shaw, 213 N.J. 398 (2012), is unavailing. Unlike Shaw, where the initial stop was illegal, here defendant was lawfully stopped for a traffic violation. See id. at 421-22. That lawful stop led, in turn, to a lawful routine warrant check and the discovery that defendant was a fugitive charged with serious, violent crimes. Once the police discovered that defendant had outstanding warrants for burglary, kidnapping, and assault by strangulation, they had a reasonable basis to believe that evidence related to those crimes might be found in the motel rooms where defendant and his companions were staying.

We have no reason to second-guess Judge Isman's factual finding that the police asked Crystal for her consent to search the motel rooms because of the information they learned during the warrant check. See State v. Elders, 192 N.J. 224, 244 (2007) (noting the high degree of deference due to the trial judge's factual findings). That search would have taken place regardless of the discovery of the toy gun in the car trunk. Likewise, in light of the serious charges against defendant, and the discovery of the weapons in the duffle bag, the police would have questioned defendant at the police station, even if they had not searched the car. Accordingly, we affirm the denial of the suppression motion.

II.

After Judge Isman addressed defendant's suppression motion, the case was tried before a second judge (the trial judge). The State presented police witnesses who testified to defendant's arrest after the traffic stop, the discovery of the sawed-off shotgun and the stun gun during the search of the motel room, and defendant's statement admitting ownership of the shotgun. One of the officers testified that the shotgun was loaded, with a round in the chamber and the safety off.

After a thorough voir dire concerning his right to testify or remain silent, defendant chose to testify at the trial. Consistent with his testimony at the suppression hearing, he denied giving Snuffer false information about his identity, and stated that he gave Snuffer an identification card from North Carolina. Defendant also denied any knowledge of the yellow duffel bag or its contents. He denied possessing, or knowing about the existence of, the shotgun or the stun gun. He denied that the police read him his Miranda rights and denied making any statement about a sawed-off shotgun. On cross-examination, defendant admitted that he and Crystal Deu were staying in the same motel room. He admitted that he refused to give a recorded statement.

Having reviewed the entire trial record, we cannot agree with any of defendant's legal challenges based on alleged trial errors. His arguments are without sufficient merit to warrant discussion, beyond the following comments. See R. 2:11-3(e)(2).

During her opening statement, the prosecutor briefly referred to the discovery of the imitation handgun in the trunk. Defense counsel promptly objected, and the trial judge offered to "give an instruction that the Defendant is not charged with possession of that [imitation weapon]. It's not part of the evidence in the case and it's not in the charges that he's facing. They are to disregard it." Defense counsel responded: "I'll defer to the Court's curative instruction." He did not move for a mistrial. The trial judge then gave a lengthy, thorough and specific curative instruction, to which there was no objection.

Moreover, despite the judge's curative instruction, in defense counsel's opening statement he also mentioned the "imitation toy weapon [or] toy gun" found in the car. Using that as part of his litigation strategy, he emphasized that defendant was "cooperative" in letting the police search his car and that their search turned up nothing but a toy of the type that counsel had "when [he] was a kid." In his trial testimony, defendant also referred to the presence of a toy gun in the car. After the jury returned its verdict, defense counsel moved for a mistrial based on the trial references to the imitation gun. We agree with the trial judge's decision to deny the motion, for the reasons he stated on the record on October 21, 2010, and January 28, 2011. We find no error, plain or otherwise, in the judge's failure to declare a mistrial. See R. 2:10-2. In light of the judge's prompt curative instructions, the prosecutor's remarks did not deprive defendant of a fair trial. See State v. Frost, 158 N.J. 76, 83 (1999).

We likewise find no merit in defendant's argument concerning Officer Snuffer's brief testimony that he arrested defendant due to an outstanding warrant. The testimony was elicited in this context. Before the trial commenced, the trial judge had ruled that if defense counsel sought to discredit the police investigation by questioning the basis for their request to search the motel room, counsel would thereby "open the door for [the State's] explanation concerning the outstanding warrants." Just before Officer Snuffer testified, the prosecutor expressed concern that Snuffer should not be required to lie about issues pertaining to the warrant in order to avoid mentioning the warrant. The judge once again cautioned defense counsel that Snuffer was not required to lie about why he arrested defendant. The prosecutor agreed not to ask Snuffer that question, and the judge ruled that "if [defense counsel] asks him why, he can answer it." Defense counsel agreed with that ruling.

During defense counsel's cross-examination of Snuffer, he repeatedly pressed the witness as to how he obtained defendant's correct address in North Carolina if defendant did not provide the officer with his credentials. The clear implication of the questioning was that Snuffer could not have known defendant's home address without seeing his credentials, and therefore was lying when he testified that defendant did not produce credentials. Snuffer, knowing that he was not supposed to mention the warrant, stated "I can't answer that without addressing that that's where I get the information from. Would you like me to?" Instead of requesting a sidebar conference, defense counsel persisted in asking Snuffer if he obtained the information from defendant's credentials. At that point, Snuffer responded that he got the information "from the warrant that I arrested him on as a fugitive of justice out of North Carolina."

The judge immediately instructed the jury that the issue was whether Snuffer received defendant's credentials and that they were to "disregard any statements regarding the existence of a warrant, which is not relevant. He's not charged with that. It's not part of any evidence that you're required to consider. You should disregard that statement." Defense counsel did not request any further curative instructions and did not move for a mistrial. On this record, the judge's curative instruction was sufficient, and we find no plain error in the judge's failure to sua sponte declare a mistrial. See R. 2:10-2; State v. Williams, 404 N.J. Super. 147, 167-69 (App. Div. 2008), certif. denied, 201 N.J. 440 (2010).

We also find no error in the trial judge's instructions to the jury concerning defendant's statement to the police. Judge Isman thoroughly and correctly addressed the recordation issue in ruling on the suppression motion. On October 19, 2010, the trial judge held that Judge Isman's ruling on the failure to record defendant's statement was the law of the case. He therefore denied defense counsel's request for a jury instruction, pursuant to Rule 3:17, concerning the failure to record the statement. See Model Jury Charge (Criminal), Statement of Defendant (When Court Finds Police Inexcusably Failed to Electronically Record Statement) (2005). We conclude that Judge Isman's ruling was correct, and the trial judge properly relied on it. Before the police could even begin questioning him, defendant gave a spontaneous statement. See R. 3:17(b)(ii). He then refused to make a recorded statement. R. 3:17(b)(iv). Under these circumstances, no special jury instruction was required concerning the failure to record the statement. We find no plain error in any other portion of the jury charge. See State v. Macon, 57 N.J. 325, 336 (1971).

III.

Finally, we address defendant's sentencing issues. Having reviewed the trial judge's comprehensive written statement of reasons, included with the judgment of conviction, we find no abuse of discretion or other error in the length of the sixteen-year extended term sentence for possession of a sawed-off shotgun by a convicted felon. See State v. Bieniek, 182 N.J. 44, 53 (2004); State v. Roth, 95 N.J. 334, 363-64 (1984). However, we remand for the limited purpose of resentencing defendant to a concurrent, ordinary term on the conviction for possession of a stun gun by a convicted felon. See N.J.S.A. 2C:44-5a(2).

Affirmed in part, remanded in part.

1 Defendant was also convicted of the following: possession of a stun gun, N.J.S.A. 2C:39-3h; possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b; unlawful possession of a loaded weapon, N.J.S.A. 2C:39l-5c(2); and hindering his own prosecution, N.J.S.A. 2C:29-3b(1). The trial court merged the weapons possession counts into the "possession by a convicted felon" counts, and imposed a concurrent four-year term for hindering. Those aspects of defendant's sentence are not at issue on this appeal.

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

3 On cross-examination, defendant admitted that he had previously been arrested and was familiar with the Miranda process.