A-0STATE OF NEW JERSEY v. JULIO C. BAEZ February 22, 2013 June 12, 2014 Re

NOT FOR PUBLICATION WITHOUT THE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.

JULIO C. BAEZ,

Defendant-Appellant.

____________________________________

February 22, 2013

June 12, 2014

Resubmitted May 21, 2014 - Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment

No. 09-05-00387.

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

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Nathan C. Howe, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant Julio C. Baez guilty of second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b. Finding that there was a "substantial likelihood that the defendant [was] involved in organized criminal activity," the judge sentenced him to prison for six years subject to a five-year minimum term pursuant to N.J.S.A. 2C:39-5i.

The matter returns to us after the remand which followed our consideration of defendant's direct appeal of the denial of his motion to suppress statements he made to the police and his claim that his sentence was excessive. State v. Baez, No. A-1709-11 (App. Div. Feb. 22, 2013). We incorporate the extended discussion of the facts and procedural history contained in our prior opinion, repeating only so much as necessary to provide context to our resolution of the remaining issues.

With regard to defendant's sentence, we determined that the judge's findings of aggravating and mitigating factors and the weight she ascribed to them were supported by adequate evidence in the record. We concluded that the sentence was neither inconsistent with the sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience and that defendant's arguments to the contrary were without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2); Baez, supra, slip op. at 13-14.

Although we affirmed defendant's sentence, we could not resolve defendant's claim that his statement should have been suppressed. That claim had two aspects, statements defendant allegedly made to Officer Spakowski without Miranda1 warnings en route to police headquarters, and the formal statement with warnings defendant made to Detective Price after his arrival at headquarters. The judge thoroughly addressed defendant's claims regarding his formal statement, and we affirmed that aspect of the judge's determination substantially for the reasons she stated. Baez, supra, slip op. at 8-9. The judge failed, however, to make any findings on what had transpired en route to headquarters or consider its effect on the voluntariness of defendant's subsequent formal statement.

Because custodial interrogation without Miranda warnings is pertinent not only to the admissibility of contemporaneous statements made by a defendant but to subsequent statements as well, State v. O'Neill, 193 N.J. 148, 180-81 (2007), State v. Yohnnson, 204 N.J. 43, 59-62 (2010), we remanded the matter to the trial judge for findings on the conflicting evidence regarding defendant's statements to Officer Spakowski. We directed the trial judge, after making her findings, to reconsider the record of the suppression hearing in light of O'Neill, Yohnnson and our opinion. Baez, supra, slip op. at 12-13. We left to the judge whether to entertain further briefing and oral argument. Id. at13. If upon reconsideration the judge concluded that suppression was warranted, we directed that defendant's conviction be vacated and he be given a new trial. Ibid. We retained jurisdiction only "for the limited purpose of allowing defendant to seek review of a decision holding that his confession was properly admitted." Ibid.

The judge reviewed the transcript of the suppression hearing and the parties' submissions before hearing argument on the remand. Acknowledging her oversight in failing to initially note her acceptance of Officer Spakowski's testimony, the judge made detailed findings on remand to support her conclusion that the interaction between Officer Spakowski and defendant en route to headquarters did not affect the voluntariness of defendant's subsequent confession.

Applying the O'Neill factors, the judge found that defendant's response to the officer's question about the gun, "[y]ou don't understand," could not be considered incriminating in light of other evidence - most notably, his question to Detective Price about what would happen if none of the passengers confessed to possessing the gun; the encounter was brief; defendant's subsequent confession was made to a different officer; Detective Price's post-warning questioning was not a continuation of Officer Spakowski's pre-warning questioning as demonstrated by the detective's unfamiliarity with the details of the car search and arrest; and although Detective Price did not advise defendant that his pre-warning statements could not be used against him, the detective was not aware that any solicited pre-warning statements were made. See O'Neill supra, 193 N.J. at 180-81.

The judge found Officer Spakowski's account of his interaction with defendant en route to headquarters credible, not discredited by cross-examination or other evidence, and that Detective Price had not exploited any of defendant's statements to Officer Spakowski in eliciting defendant's subsequent confession. Accordingly, the judge concluded that defendant's comments to Officer Spakowski en route to police headquarters did not affect the voluntariness of defendant's subsequent confession, and thus that defendant's post-warning confession was properly admitted.

A trial judge's factual findings must be sustained so long as they are supported by sufficient, credible evidence in the record. See State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). The judge's findings as to the credibility of the witnesses are also entitled to our deference. Yohnnson, supra, 204 N.J. at 62. Applying those standards to the judge's thorough and comprehensive findings on remand, we reject defendant's contention that those findings were in error and affirm the judge's conclusion that defendant's confession was properly admitted substantially for the reasons she stated.

Although that disposes of the only issue of which we retained jurisdiction, defendant raises a new issue, not presented to the judge on remand, regarding his sentence. Specifically, defendant contends that the five-year mandatory minimum term of his imprisonment imposed pursuant to N.J.S.A. 2C:39-5i, is unconstitutional pursuant to the recently decided United States Supreme Court decision in Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013).

Following the trial judge's imposition of sentence, and our affirmance of that sentence, the Supreme Court issued its decision in Alleyne. In Alleyne, the Court, by a five-four majority, determined that Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002), had been wrongly decided and overruled its holding, that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment, as inconsistent with Apprendi v. New Jersey, 530 U.S. 466, 476-85 120 S. Ct. 2348, 2355-60, 147 L. Ed. 2d 435, 446-52 (2000) (holding that the touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an "element" of the charged offense and declaring that a fact is, by definition, an element of the offense and must be submitted to the jury if it increases the punishment beyond what is otherwise legally prescribed). Alleyne, supra, ___ U.S. at ___, 133 S. Ct. at 2160-63, 186 L. Ed. 2d at 327-30. Defendant contends that the holding in Alleyne, that facts that increase the mandatory minimum sentence are likewise elements that must be submitted to the jury and found beyond a reasonable doubt, requires that we vacate the mandatory minimum term imposed by the trial judge as the finding underpinning it was made by the judge and not the jury. We disagree.

Defendant challenged his sentence as excessive on direct appeal. He raised no other issue as to his sentence, and certainly no issue regarding the mandatory minimum the trial judge imposed in accordance with Harris.2 While ordering a limited remand for the trial judge's reconsideration of the admission of defendant's confession, we affirmed his sentence. We retained jurisdiction only "for the limited purpose of allowing defendant to seek review of a decision holding that his confession was properly admitted." Having completed that review, our jurisdiction is at an end. Defendant offers no argument as to how this court may properly consider this new claim at this juncture, and we decline to do so.

Affirmed.

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

2 Although the State makes reference to a constitutional challenge defendant initially raised regarding his sentence, a review of defendant's brief on direct appeal confirms that defendant raised no constitutional issues with regard to his sentence.