STATE OF NEW JERSEY v. JOSEPH MEZYNSKI

NOT FOR PUBLICATION WITHOUT THE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.

JOSEPH MEZYNSKI,

Defendant-Appellant.

____________________________________________

September 24, 2014

Before Judges Messano and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-08-1264.

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

Andrew Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Joseph Mezynski was found guilty of first-degree robbery, N.J.S.A. 2C:15-1. He subsequently pled guilty to third-degree burglary, N.J.S.A. 2C:18-2, a count in the same indictment previously severed from trial, and fourth-degree attempted theft, N.J.S.A. 2C:5-2 and 20-3, a count contained in a separate indictment. After denying defendant's motions for judgment notwithstanding the verdict (j.n.o.v.) or for a new trial, the judge sentenced defendant to a ten-year term of imprisonment with an eighty-five percent period of parole ineligibility on the robbery, a concurrent three-year term on the burglary and a concurrent one-year term on the attempted theft.

Before us, defendant raises the following issues

POINT I

THE JUDGE ERRED IN DENYING MR. MEZYNSKI'S MOTION TO SUPPRESS HIS STATEMENT FOLLOWING THE ILLEGAL STOP OF THE AUTOMOBILE IN WHICH HE WAS TRAVELLING. ADDITIONALLY, THE JUDGE ERRED IN DENYING THE MOTION TO SUPPRESS THE UNWARNED STATEMENT MR. MEZYNSKI MADE IMMEDIATELY AFTER DETECTIVE SERGEANT RYAN SPOKE TO HIM.

A) The stop was not supported by reasonable articulable suspicion.

B) Mr. Mezynski's statement to Detective Sergeant Ryan was the product of custodial interrogation without Miranda1 warnings.

POINT II

BECAUSE THE JURY CHARGE ALLOWED THE JURORS TO CONVICT DEFENDANT OF ROBBERY IF THEY FOUND THAT HE WAS ONLY GUILTY OF THE ROBBERY OF MS. KARAMON, AS TO WHOM THE EVIDENCE WAS INSUFFICIENT, DEFENDANT'S CONVICTION MUST BE REVERSED.

POINT III

THE JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE CHARGE OF FIRST-DEGREE ROBBERY BECAUSE THE EVIDENCE DID NOT SUPPORT A FINDING OF ARMED ROBBERY BY SIMULATION.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

Defendant moved pre-trial to suppress a statement he made to Detective Sergeant James Ryan of the South Brunswick Police Department during an initial encounter in the driveway of defendant's home. Defendant's claim was that police unlawfully detained him in the driveway of his home, and, therefore, all statements he made thereafter should be suppressed as the fruit of that illegality.

As to the circumstances leading up to the encounter, defendant conceded that the facts were "uncontested." As a result, the judge decided this aspect of the motion without taking any testimony. We therefore reference the factual findings made by the judge as he rendered his oral opinion and confine our review to those findings. See State v. Tavares, 364 N.J. Super. 496, 502 (App. Div. 2003) (noting that "a defendant cannot refer to evidence developed other than at the motion to suppress . . . when defendant challenges the denial of a motion to suppress").

Ryan had received information that the person who had recently robbed the Dayton Park Pharmacy was named Joseph Mezynski, and that he and a female would be driving on a certain street "in a gray Volvo registered to Mezynski's father." Ryan went to that street, spotted the vehicle as described, stopped the vehicle and spoke to defendant, who was in the passenger seat.2 Defendant began to apologize for the robbery and indicated that he had a substance abuse problem. Ryan arrested defendant and he was transported to police headquarters. The judge concluded that Ryan had a "reasonable and articulable suspicion to stop th[e] car" based upon the specificity of the tip police received, the observations confirming those details, and the totality of the circumstances.

In Point IA, defendant reiterates on appeal the arguments he made in the Law Division. He contends that Ryan's initial encounter was an unlawful investigative detention because only innocent details supplied by the informant were corroborated by the police. See, e.g., State v. Rodriguez, 172 N.J. 117, 131 (2002) (finding corroboration of only "innocent details of [the] defendant's appearance at the bus terminal[,] [w]ithout more[] [to be] insufficient to justify the detention"). We disagree.

An investigatory stop or a Terry3 stop is a well-recognized exception to the warrant requirement. State v. Mann, 203 N.J. 328, 338 (2010). "Such a stop 'is valid if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). "[A] reviewing court must assess whether 'the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate.'" Ibid. (quoting Pineiro, supra, 181 N.J. at 21). The officer's actions cannot be based upon "inarticulate hunches." Ibid. (citation omitted). "Because the 'determination of reasonable [and articulable] suspicion is fact-sensitive,' a careful review of the totality of the circumstances surrounding each case is required." Ibid. (quoting Pineiro, supra, 181 N.J. at 22).

In this case, Ryan verified the information he had received by going to the specific street mentioned, waiting for the car that fit the description to arrive, verifying its ownership and observing that a man and a woman were in the car. This level of corroborated detail exceeded the information found to be insufficient in Rodriguez. Rodriguez, supra, 172 N.J. at 127-28. Based upon all the circumstances, Ryan possessed a reasonable and articulable suspicion that defendant may have been engaged in recent criminal activity.4

Defendant also argued before the motion judge that any statement he made to Ryan during the encounter in the driveway should be suppressed because he was subjected to custodial interrogation and had not been given his Miranda rights. On this issue, the judge took testimony.

Ryan stated that, after seeing the Volvo pull into the driveway of defendant's home, he drove his police car into the driveway and activated his lights. Ryan approached the Volvo within ten seconds thereafter. He acknowledged that defendant would not have been able to leave the driveway, "at least in the car." As Ryan approached, the passenger door of the Volvo opened. Ryan "identified [himself]," and stated, "I know about the robbery, it's on videotape." Defendant "immediately responded . . . that he was sorry, that he was a drug addict, he didn't mean to hurt anyone." The entire exchange lasted less than thirty seconds, after which Ryan placed defendant under arrest.

The judge concluded that defendant was not in custody and Ryan's comment was not interrogation. He denied defendant's motion to suppress the statement.

In Point IB, defendant reiterates the same arguments made before the Law Division. They lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only the following.

Miranda applies whenever a suspect is "subject to police interrogation, whether in custody at the stationhouse or any other place where he [or she] is deprived of his freedom of action in any significant way." State v. Nyhammer, 197 N.J.383, 400 (2009) (internal quotations omitted) cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). "'The critical determinant of custody is whether there has been 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, the status of the suspect, and other such factors.'" State v. Carlucci, 217 N.J.129, 144 (2014) (quoting State v. P.Z., 152 N.J. 86, 103 (1997)).

Here, defendant was not "in custody" when he confessed to Ryan. He was in the driveway of his home about to exit his father's car. The totality of circumstances do not objectively demonstrate his freedom of movement had been significantly deprived. We, therefore, need not consider whether Ryan's comment to defendant was the functional equivalent of interrogation. See, e.g., State v. Cryan, 363 N.J. Super. 442, 452 (App. Div. 2003)("[T]he term 'interrogation' under Mirandarefers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.") (quoting State v. Ward, 240 N.J. Super. 412, 418 (App. Div. 1990)).

II.

The evidence at trial revealed that at approximately 8:40 a.m. on June 7, 2010, Maria Santos arrived at the Dayton Park Pharmacy to begin her shift as a pharmacy technician. As she waited outside for the pharmacist, Ashgar Nathoo, to arrive, she saw a man wearing a grey hooded sweatshirt nervously pacing back and forth in the parking lot. After Nathoo arrived, Santos entered the employees-only area of the store where the prescription medications were kept and told Nathoo what she had seen.

Defendant entered the store, approached the pharmacy counter and handed a piece of paper to Eswarea Karamon, another pharmacy technician. Believing it to be a prescription, she handed it to Nathoo, who read the note, which said, "I have a gun. Give me Oxycontin or Oxycodone now. Get it fast."

Both Nathoo and Santos testified that defendant kept his hand inside the pocket of his sweatshirt. Nathoo was uncertain whether defendant had a gun, but he was scared; Santos testified that she thought that defendant had "a gun or . . . something that he was going to hurt [her] with." Nathoo went to the pharmacist's office, activated the silent alarm, and ran through the store and out the front door. Santos and Karamon also ran out of the store.

After defendant handed Karamon the note, he entered the restricted area of the pharmacy. Nathoo testified as to the customer prescriptions that were taken from the store, but none were "controlled" substances, which the pharmacy kept under lock and key. The bottles of medications were recovered by police at approximately 5:30 p.m. in the afternoon, when a resident found them in the bushes outside her home.

Ryan arrested defendant on June 9, 2010. After being transported to headquarters, Detective Ronald Seaman took a formal statement from defendant in which he confessed to robbing the pharmacy but denied having any weapon. A videotape of the statement was played for the jury.

A.

The indictment charged defendant with first-degree robbery in that "in the course of committing a theft[,] [he] did threaten immediate bodily injury to . . . Karanam [sic] and/or . . . Nathoo and/or did purposely put . . . Karanam [sic] and/or . . . Nathoo in fear of immediate bodily injury, by threatening the immediate use of a deadly weapon . . . ." In his charge, the judge read the indictment to the jury and did not differentiate between Karamon and Nathoo during the course of his instructions. The jury verdict sheet simply asked the jurors to state whether defendant was guilty or not guilty of first-degree robbery.

At trial, defendant did not object to the jury charge or the verdict sheet. When defendant moved post-verdict for j.n.o.v. or a new trial, he argued that the evidence was insufficient to find him guilty of first-degree robbery as to either Nathoo or Karamon, an argument pressed on appeal and which we address below, and that the jury may have been confused and returned a non-unanimous verdict because the evidence as to Karamon was insufficient. The trial judge acknowledged that the evidence was insufficient to find defendant guilty of having robbed Karamon, who never read the note and was unaware of the demand. We agree with that conclusion. But, the judge also noted that "the proofs presented by the State through the testimony of [Nathoo], as well as the surveillance video, overwhelmingly supported the jury's verdict, [and] it cannot be said that including [Karamon] in the charge confused the jury."

In Point II, defendant contends that the verdict cannot stand because it may not have been a unanimous verdict, and, since the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of robbery as to Karanam, his conviction must be reversed. We take this opportunity to once again state our concern that the continued use of "and/or" in an indictment charging crimes against multiple victims invites the possibility of a fragmented, non-unanimous verdict. Nevertheless, in this case, we are confident that did not happen.

The principle of unanimity is "deeply ingrained in our jurisprudence" and requires that "'jurors [must] be in substantial agreement as to just what a defendant did' before determining his or her guilt or innocence." State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)). How the unanimity requirement "plays out in individual cases is more complicated." Ibid.

"Ordinarily, a general instruction on the requirement of unanimity suffices to instruct the jury that it must be unanimous on whatever specifications it finds to be the predicate of a guilty verdict." State v. Parker, 124 N.J. 628, 641 (1991). However, the court is required to "instruct a jury, on request, that if a guilty verdict is returned, the jury must be unanimous on the underlying facts" in two situations: 1) where there is a "genuine possibility of jury confusion"; or 2) where the "conviction may occur as a result of different jurors concluding that a defendant committed conceptually distinct acts." Id. at 641-642. As the Court has explained,

[W]here there is an allegation on appeal that a specific unanimity charge should have been given, the core question is, in light of the allegations made and the statute charged, whether the instructions as a whole posed a genuine risk that the jury would be confused. The reviewing court should examine two factors: whether the acts alleged are conceptually similar or are contradictory or only marginally related to each other, and whether there is a tangible indication of jury confusion.
 
[State v. Gandhi, 201 N.J. 161, 193 (2010) (internal quotations and alterations omitted).]

An example is provided by the decision in State v. Gentry, 183 N.J. 30 (2005).

There, the defendant was indicted for one count of second-degree robbery of a Rite Aid store "and/or" its employee "and/or" its manager. Id. at 31. He was accused of seizing several boxes of cigars before running out of the store. Ibid. The State alleged that during the theft, the defendant "charged" the employee, knocking her backwards, then punched and kicked the manager as he fled. Ibid. The defendant testified and contended that he only "brush[ed]" past the employee, and accidentally kicked the manager, who had grabbed the defendant's pants in an attempt to thwart his escape. Ibid. The defendant argued that he never intended to use force against or threaten either victim. Ibid.

During deliberations, the jury sent a note explaining that, while they unanimously agreed the "'defendant knowingly used force against'" either the manager or the employee, one group of jurors believed that the unlawful force had been used only against the manager and another group of jurors believed force was used only against the employee. Id. at 31-32. When the jurors asked if this constituted "'a unanimous vote[,]'" the judge told them

If a portion of this jury believes that that force has been shown and that same element of force requiring knowing intent has been distributed to someone else and they're both encompassed within the format of this indictment, I'm satisfied that that would be a unanimous determination of the force required by the statute has been proved by the State beyond a reasonable doubt if that is the jury's finding.

[Id. at 32.]

On appeal, a majority of our colleagues affirmed the defendant's conviction. State v. Gentry, 370 N.J. Super. 413 (App. Div. 2004) (Coburn, J., dissenting), rev'd on dissent, 183 N.J. 30 (2005). Judge Coburn dissented, concluding that the jurors had not agreed unanimously on which acts were committed against which victim. Id. at 426-27. The Supreme Court reversed and remanded for a new trial, substantially for the reasons expressed by Judge Coburn. Gentry, supra, 183 N.J. at 33.

Following the Court's decision in Gentry, the model jury charge for robbery was amended to read

To find the defendant guilty of robbery, you must be unanimous that the defendant used force against (NAME OF VICTIM NUMBER ONE) or (NAME OF VICTIM NUMBER TWO). In other words, if you find that the defendant used force, but do not unanimously agree that he/she used force against (NAME OF THE VICTIM), then the State has failed to prove the existence of force beyond a reasonable doubt.
 
[Model Jury Charges (Criminal), "Robbery in the First Degree" N.J.S.A. 2C:15-1 (2012).]

Courts are instructed to use the revised jury charge "if multiple victims are alleged and the facts warrant." Ibid.

In the end, the essential inquiry is whether considering the proofs in this case specifically excluding Karamon as a potential victim posed a genuine risk of jury confusion and the return of a non-unanimous verdict. Gandhi, supra, 201 N.J. at 193. We are convinced that did not occur in this case.

Unlike the facts in Gentry, where the defendant engaged in separate acts directed at different victims and generally denied using force against either, defendant's conduct in this case was singularly directed toward obtaining drugs from the pharmacy. The jury was not confused that the State contended defendant committed a single robbery and that Nathoo, who testified in detail about receiving the note and observing defendant, was the victim and Karamon was not.

B.

Lastly, defendant contends the judge erred in denying his motion for a judgment of acquittal made at the end of the State's case because there was insufficient evidence to prove first-degree robbery by simulation. The argument lacks sufficient merit to warrant extensive discussion. R.2:11-3(e)(2).

The "well-established standard for determining the sufficiency of the evidence against an accused on a Rule 3:18-1 motion for acquittal[,]" State v. Wilder, 193 N.J. 398, 406 (2008), is set forth in State v. Reyes.

[W]hether[] viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[ 50 N.J. 454, 459 (1967).]

We review the decision of the trial judge de novo applying the same standard. State v. Bunch, 180 N.J. 534, 548-49 (2004).

The Court recently said

The definition of "deadly weapon" in N.J.S.A.2C:11-1(c) permits a defendant to be convicted of first-degree robbery even if he had no real weapon -- just a simulated one -- during the commission of the crime. However, a first-degree robbery conviction will not be sustained unless the victim possessed a subjective belief that the device or instrument [or material or substance was] capable of producing death or serious bodily injury, and . . . that that subjective belief [was] a reasonable one under the circumstances.

Thus, a deadly weapon includes not only a real weapon, such as a gun, but also a simulated weapon -- an object fashioned to look like a gun, such as a finger in a pocket. However, the device, instrument, material or substance that is fashioned to look like a weapon must be capable of leading a reasonable person to believe it is in fact a weapon. Needless to say, a simulated deadly weapon will have the ability to induce the same degree of terror in a victim as an actual weapon. In amending the statutory definition of deadly weapon to include a feigned weapon, the Legislature decided that no distinction should be made between real deadly weapons and simulated ones in elevating the range of punishment for a robbery. . . .

The language covering simulated weapons in N.J.S.A.2C:11-1(c) is broad enough to encompass the multitude of ways in which a device, instrument, material or substance can be fashioned by a creative robber into something that generates a reasonable belief that it is or conceals a lethal weapon. After all, the robber who pretends to possess a deadly weapon intends that the victim believe that he has a real one, so he is unlikely to reveal that the supposed gun in his pocket is just a finger.

[State v. Williams, ___ N.J.___ (2014) (slip op. at 22-24).]

In this case, Nathoo testified that he believed defendant had a weapon of some kind "[b]ecause the note said so[,] and he had his hands in his pocket and the pockets . . . seemed like they were pointing this way . . . . [T]he hoodie was extended . . . so I couldn't tell whether it was a gun or whether it was his hands, but I was scared." Santos also testified that the manner in which defendant held his hand inside his sweatshirt led her to believe he had a gun. This evidence was sufficient to permit the jury to find beyond a reasonable doubt all the necessary elements of first-degree robbery.

Affirmed.

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

2 As we describe, infra, during the second part of the hearing, Ryan testified that defendant's car was already parked in the driveway and Ryan parked his police vehicle behind it and activated its lights.

3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

4 We note that Ryan's subsequent testimony during the second phase of the motion hearing makes it likely that this encounter was more in the nature of a permissible field inquiry. See Pineiro, supra, 181 N.J. at 20 (alteration in original) ("A 'field inquiry' is the least intrusive encounter, and occurs when a police officer approaches an individual and asks if '[the person] is willing to answer some questions.'").