Opinion
DOCKET NO. A-2631-12T4
03-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARRICK HUDSON, Defendant-Appellant.
Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wilensky, of counsel and on the brief). Jeffrey P. Mongiello, Deputy Attorney General, argued the cause respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John, and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-02-0310. Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wilensky, of counsel and on the brief). Jeffrey P. Mongiello, Deputy Attorney General, argued the cause respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief). PER CURIAM
After his motion to suppress inculpatory statements made to police was partially denied, defendant Darrick Hudson entered a guilty plea, pursuant to a negotiated agreement, to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); first-degree robbery, N.J.S.A. 2C:15-1; and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1). He was sentenced in accordance with the plea agreement to twenty-five years in prison on the manslaughter charge, and concurrent ten- and three-year terms on the other charges.
Defendant raises two points on appeal:
POINT I
THE DEFENDANT DID NOT WAIVE HIS MIRANDA RIGHTS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY IN EITHER OF HIS STATEMENTS, AND THE SECOND STATEMENT WAS THE PRODUCT OF THE FIRST. ACCORDINGLY, THE SECOND STATEMENT, AS WELL AS THE FIRST, MUST BE SUPPRESSED. U.S. CONST., AMENDS. V, VI, XIV.
A. THE SECOND STATEMENT WAS NOT TAKEN KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.
1. THE FIRST STATEMENT WAS CORRECTLY SUPPRESSED.
2. THE SECOND STATEMENT WAS INVOLUNTARY.
B. THE SECOND STATEMENT WAS THE INEVITABLE PRODUCT OF THE IMPROPER FIRST STATEMENT.
POINT II
THE DEFENDANT RECEIVED AN EXCESSIVE AND DISPROPORTIONAL SENTENCE, NECESSITATING REDUCTION.
A. THE SENTENCE IS EXCESSIVE.
B. THE SENTENCE IS DISPROPORTIONAL.
I.
On March 9, 2007, at approximately 9:11 p.m., the Atlantic City Police Department (ACPD) received a report of a shooting at a gas station/mini-mart located on White Horse Pike (Absecon Blvd.). Police arrived and found the owner of the gas station, Makhan Singh, shot to death, and a station attendant wounded. A second attendant told police that he was sitting near the gas pumps talking with the other attendant when a man with a gun came up and demanded money. The second attendant gave the gunman money, but the other attendant was shot when he attempted to flee. The second attendant was able to get away and heard additional gunshots.
A motorist reported seeing men running from the scene and a black Audi pulling away. The motorist provided the license plate number of the Audi, and police quickly located the owner.
After initially denying any involvement, the owner's daughter, Gina McCrosson, and her boyfriend, Tyler Hart, admitted picking up three men, Basir Biggins, Nasir Salaam, and defendant. Once in the car, the three men discussed committing a robbery. McCrosson and Hart drove them to several locations that were closed until they found the Absecon Blvd. station.
Biggins, Salaam, and defendant got out of the car and walked toward the station. After a few minutes, the three men returned to the car and told McCrosson to drive away. She dropped them off a few blocks away. McCrosson, Hart, Biggins, Salaam, and defendant were all arrested.
Salaam provided a statement and identified Biggins as the shooter of Singh. Salaam admitted that he shot the fleeing attendant. Biggins denied being at the scene, but admitted he provided one of the weapons used in the robbery. Two handguns connected to Biggins were later recovered, as well as clothing items, which Biggins claimed belonged to Salaam and defendant. Ballistics testing revealed that one of the recovered handguns fired a bullet found at the scene.
March 10, 2007 Statement
Defendant was arrested on the morning of March 10, 2007, and was brought to the prosecutor's office for questioning. Because defendant was sixteen years old at the time, police waited until his mother arrived to question him. A family friend who knew defendant for more than ten years and served as a mentor to defendant, came to offer moral support, but was not present during defendant's initial questioning.
Before she entered the interview room, defendant's mother was told that "the first one that gives the statement gets the great deal[.]" With his mother present, Detectives Michael Graham and Tim Smith entered the room and advised defendant of his Miranda rights in his mother's presence. At 1:17 p.m., defendant and his mother signed a form listing those rights and indicated that they understood defendant's rights and agreed to waive them.
During the first hour, defendant was resistant to questioning, visibly distraught, and, at times, crying. Defendant also expressed to his mother during questioning that he was "scared." Defendant's mother repeatedly yelled at him, saying that if he knew something, he needed to tell police or else he would go to prison for life. At about 2:28 p.m., defendant began crying, stood up, and pounded the wall, exclaiming "I don't know as much as you all think I do."
At approximately 2:31 p.m., defendant's mother left the room to have a cigarette and speak with the family friend. Shortly after she left, defendant vomited. Detectives continued to question defendant in his mother's absence and, at approximately 2:33 p.m., defendant began to admit his involvement. Before his mother reentered the room, Detective Graham told defendant the other defendants were talking and he was hurting more than helping himself.
At approximately 2:45 p.m., defendant's mother reentered the room and stated twice that she was going to get a lawyer. Detective Smith replied that he was going "to talk to [her] son until [she] say[s], I don't want you talking to my son anymore. You telling me you're going to get a lawyer doesn't mean anything." Shortly thereafter, defendant's mother repeated, "I think I should get a lawyer."
At 2:54 p.m., the detectives left the room, and defendant and his mother were alone until 3:24 p.m., when Lieutenant Bruce DeShields spoke with defendant and his mother. When asked if defendant was being charged, DeShields said he was "fairly certain," but did not know what he was going to be charged with, yet. Lieutenant DeShields explained the process for charging a juvenile to defendant's mother, and then both he and defendant's mother left the room.
At approximately 3:36 p.m., Lieutenant DeShields brought the mentor into the room, who spoke with defendant alone for a few minutes. Lieutenant DeShields then reentered the room to question defendant. At around 4:00 p.m., in the presence of the mentor and Lieutenant DeShields, but not his mother, defendant admitted his involvement in the incident. Defendant claimed he did not know there was going to be a robbery or a murder that day, that he was not armed and did not pull the trigger, that he realized Biggins had a gun when he got into the car, that Biggins was the shooter, and that he entered the minimart at Biggins' direction. The questioning lasted four hours, beginning at approximately 1:15 p.m. and concluding at 5:15 p.m.
Events between Statements
Following the March 10th statement, defendant's mother retained an attorney, James Leonard, to represent defendant. Between March 10 and March 20, 2007, defendant attended a juvenile court appearance, where he met Mr. Leonard for the first time. Defendant testified that Mr. Leonard told him that he was representing him and that the hearing only involved defendant being read his charges. Mr. Leonard did not discuss the case with defendant.
Defendant next saw Mr. Leonard on March 19, 2007 at the prosecutor's office after Mr. Leonard arranged for him to make a statement. Defendant's mother was not present, and he refused to make a statement because he wanted her to be there. Mr. Leonard rescheduled the interview for March 20, 2007.
March 20, 2007 Statement
Defendant was brought to the prosecutor's office by Sergeant Michael Fadden. Before the interview began, defendant was given an opportunity to speak with his mother, Mr. Leonard, and the family friend, who were all present.
Defendant's mother was informed of defendant's constitutional rights and that she had a right to be present during questioning. Defendant's mother signed a form authorizing defendant to speak with investigators and answer questions outside her presence. The form provided, in pertinent part, "I authorize this questioning to take place outside of my presence provided either [defendant's] attorney, James Leonard Jr., or his [mentor] is present." The mentor also signed a form acknowledging that, at defendant's mother's request, he would take her place during questioning. The form provided, "I have been advised of [defendant's] and [defendant's mother's] rights by both investigators and James Leonard and understand these rights."
Defendant was again read his Miranda rights and signed a form waiving those rights in the presence of Mr. Leonard and the mentor. Defendant was asked if he had any questions concerning his rights, to which he replied "Ah, no." Sergeant Fadden testified that defendant appeared cognizant of what was going on, understood Fadden's questions, and answered questions appropriately.
Defendant was then interviewed by Sergeant Fadden and Lieutenant DeShields. Mr. Leonard and the family friend were present in the interview room, and defendant's mother was at the prosecutor's office in a separate room, approximately thirty feet away.
For the first hour, defendant was questioned almost exclusively by Sergeant Fadden, and the questioning was conducted in a conversational tone. Mr. Leonard did not speak much during the course of the interview, and the family friend interjected at only a few points. About an hour into the interview, defendant was given food and a drink.
The questioning lasted approximately two hours, from 2:18 p.m. to 4:22 p.m. Defendant explained that he got into a car with Salaam and Biggins; Biggins and Salaam had guns; the driver needed gas money; they were driven to a nearby hotel and walked to the gas station; Salaam approached one of the gas station attendants outside the minimart, while defendant and Biggins entered the minimart; Biggins pointed a gun at the cashier and told him to "give up the money"; the cashier tried to fight with Biggins; shots were fired; Biggins told defendant to grab his gun after it fell to the ground; defendant grabbed the gun; and all three ran off and got back into the car.
On February 6, 2008, a grand jury sitting in Atlantic County indicted defendant, Biggins, Salaam, McCrosson, and Hart. Defendant was charged with first-degree felony murder (count one), N.J.S.A. 2C:11-3(a)(3); first-degree robbery (counts two, three, and four), N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery (count five), N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; second-degree aggravated assault (count six), N.J.S.A. 2C:12-1(b)(1); second-degree possession of a firearm for an unlawful purpose (count seven), N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a handgun (count eight), N.J.S.A. 2C:39-5(b); and third-degree hindering apprehension (count nine), N.J.S.A. 2C:29-3(b)(1).
Defendant moved to suppress the March 10th and March 20th statements. The judge held a hearing which began in March and continued through July 2011. At the hearing, the family friend testified that Mr. Leonard told him before the March 20th questioning that he had been in touch with the prosecutor's office about the possibility of a plea agreement, and "if [defendant] would speak now, it would be better for later . . . ." Sergeant Fadden testified that, to his knowledge, no discussions of a plea agreement had occurred and defendant was making the statement "[o]n the advice of counsel."
Defendant testified that he was sixteen years old and in tenth grade at the time he made his statements. Defendant claimed he did not understand his Miranda rights at the time, but was aware that he did not have to give a statement. He claimed he gave the statement "in furtherance of [a] plea offer" and Mr. Leonard told him the charges ranged "from five to 12 years," but that "he could probably get [defendant] seven."
Initial ruling
The judge initially denied defendant's motion to suppress the entire March 20th statement as well as any statements made before 2:45 p.m. on March 10th, when defendant's mother requested counsel. The judge found that defendant's mother's request for counsel should have been honored. As to the remainder of defendant's statements, the judge found that defendant "understood the Miranda rights he was waiving."
The judge found defendant to be of normal intelligence, and rejected testimony by defendant and his mother that he was of below average intelligence and did not understand the Miranda rights he was waiving. The court found the testimony of Detective Graham, Sergeant Fadden, and Lieutenant DeShields to be credible, and determined that in both interviews, the "interaction of police with the defendant, his mother, his mentor and his attorney was completely above-board and fair." Although the judge found defendant's mother's efforts to convince defendant to confess during the March 10th statement an "area of concern," when considering the totality of the circumstances, the judge found defendant knowingly, intelligently, and voluntarily waived his rights for any statements made before 2:45 p.m.
The judge admitted the entire March 20th statement, finding that defendant knowingly, voluntarily, and intelligently waived his Miranda rights, and noting that, during that statement, defendant's attorney and mentor were both present and that defendant's mother was "available for consultation at any time." The judge further found that, during the March 20th statement, defendant was "again advised of his rights" and that "his attorney was free to confer with [defendant] and in fact did confer with him on numerous occasions during breaks in the questioning." The judge considered the totality of the circumstances, "including defendant's age and ability to understand the Constitutional rights he was waiving," as well as the lack of mental or physical coercion during questioning, and found that defendant "gave a knowing, intelligent and voluntary waiver of his Miranda rights."
November 30, 2011 Psychological Report
Defendant subsequently underwent a psychological evaluation to assess, among other things, his ability to waive his Miranda rights. Defendant was diagnosed with mild mental retardation; a learning disability, particularly in the contexts of reading and reading comprehension; generalized anxiety disorder; post-traumatic stress disorder; attention deficit hyperactivity disorder; and personality disorder, not otherwise specified, with paranoid, passive-dependent, immature, and antisocial features.
The psychologist noted that defendant has a full scale IQ of 66, which places him in the first percentile of the population, within the range described as mild mental retardation. The report revealed that defendant's highest level of education was ninth grade, he was in "special education" classes for all subjects, and his "reading [and] sentence comprehension . . . are even lower than what would be predicted by his IQ scores[.]" Defendant's reading and sentence comprehension scores were similar to that of a child between the first and third grades.
In the Miranda context, even at the time of his evaluation (after his statements), defendant could not read the word "remain," "afford," or "appointed." Defendant did not know what the word "right" meant at the time of his statements, but he now understands what it means. The psychologist concluded that defendant understood the Miranda rights at the time of his evaluation, but that he did not understand them during the time of his interview and "did not understand that the right to remain silent meant that he did not have to talk." Defendant reported to the psychologist that he told police that he understood things that he actually did not understand, and that this was "in part because of his reading and comprehension problems, and in part because he was scared and just wanted to go home." The report concluded "to a reasonable degree of psychological certainty" that defendant "would have been unable to understand his rights at the time of his interrogation."
Subsequent ruling on defendant's motion to suppress
Following this report, defendant sought reconsideration of the ruling on his motion to suppress. On June 5, 2011, the judge granted the motion and found that the entirety of defendant's March 10th statement should be suppressed in "light of defendant's limited IQ and reading comprehension abilities." In particular, the judge noted that the psychologist's "indication that the Defendant still cannot define the words 'remain,' 'afford,' and 'appointed,' adequately demonstrate that the Defendant's statements of March 10, 2007 were not knowing and voluntarily made in the totality of the circumstances."
However, the judge did not suppress defendant's March 20th statement, and found that it appeared to be knowing, voluntary, and intelligent. The judge reasoned that, during his March 10th statement, defendant did not have the benefit of counsel and there was no indication that his Miranda rights were thoroughly explained to him. The judge explained that "[g]iven the Defendant's youth, low IQ, and limited reading comprehension, additional safeguards were required to ensure that the Defendant's statement was knowing, voluntary, and intelligent," and that, on March 20, 2007, "those safeguards were in place." The judge noted that "[t]en days had passed since the prior interrogation," and that the March 20th "statement was made in the presence of [defendant's] attorney, his mentor, and with the benefit of legal counsel."
II.
A.
Defendant now argues that the March 20th statement should have been suppressed because he did not knowingly, intelligently, and voluntarily waive his Miranda rights, and the second statement "was merely a confirmation of the first."
In our review of a decision on a motion to suppress, we must uphold the factual findings underlying the trial judge's decision so long as those findings are supported by sufficient credible evidence in the record. State v. Rockford, 213 N.J. 424, 440 (2013). We give deference to the trial judge's ability to hear and see the witnesses and to have a feel of the case, which a reviewing court cannot enjoy. Ibid. We review a trial court's legal conclusions de novo. Ibid.
A juvenile defendant must knowingly, voluntarily, and intelligently waive his Miranda rights for his custodial statements to law enforcement to be admissible. State v. Presha, 163 N.J. 304, 313 (2000). The burden is on the State to prove the validity of a Miranda waiver beyond a reasonable doubt. State v. O'Neill, 193 N.J. 148, 168 n.12 (2007). The State must prove that a suspect's "waiver was knowing, intelligent, and voluntary in light of all the circumstances." Presha, supra, 163 N.J. at 313.
The role of a parent in the context of a juvenile interrogation takes on "special significance" because "the parent serves as [an] advisor to the juvenile" and "can offer a measure of support in the unfamiliar setting of the police station." Id. at 314.
In support of his claim that he did not knowingly, intelligently, and voluntarily waive his Miranda rights, defendant emphasizes that his mother was not physically present for the statement; the mentor "may have exacerbated" defendant's confession and his presence did "not vitiate the parent's (voluntary) absence"; the presence of counsel had "little impact upon . . . the validity of his waiver"; and defendant's "numerous psychological issues" along with his lack of familiarity with the justice system.
The voluntary absence of defendant's mother during questioning is not dispositive of defendant's Miranda waiver. Indeed, the Court in Presha noted that if the parent "declines to accompany the juvenile, the police must conduct the interrogation with 'the utmost fairness and in accordance with the highest standards of due process and fundamental fairness.'" Id. at 317 (quoting In re S.H., 61 N.J. 108, 115 (1972)). "[W]hether a parent or legal guardian is willing to be present for [a] confession obviously must be considered from the adult's perspective." State ex rel. Q.N., 179 N.J. 165, 174 (2004). In Q.N., the Court held a twelve-year-old juvenile's statements to be voluntary where his mother "knew of her right to be present with her son and knew that, if she left [the room] as she eventually did, she could return at any time or could end the interview." Ibid.
Defendant's reliance on State ex rel. A.S., 203 N.J. 131 (2010), is misplaced because the mother in that case was present during the interrogation and "badgering" the defendant into confessing. Id. at 136. The Court held the confession inadmissible because defendant's mother was also the victim's grandmother, and therefore the mother was not "assist[ing] the child in the exercise of . . . her constitutional rights" but was "provid[ing] the police with an assistant." Id. at 137.
This case is similar to the voluntary waiver in Q.N. because defendant's mother signed a form acknowledging that she understood that she had the right to be present during defendant's questioning and was waiving that right after consulting with defendant's attorney. Although defendant's mother strongly urged him to cooperate with the police on March 10th, that statement is not at issue in this case. Defendant's mother testified that, before the March 20th statement, she "was listening to [defendant's attorney]" when she signed the form. She acknowledged wanting the family friend to be present "because [she] was a nervous wreck" and "was crying." In light of these facts, defendant's mother was voluntarily absent from the interview. Moreover, our review of the video of defendant's March 20th statement confirms the judge's findings that the "interaction of police with the defendant, his mother, his mentor and his attorney was completely above-board and fair."
We also reject defendant's arguments that the presence of the family friend "exacerbated" defendant's confession and was inappropriate given the mother's voluntary absence from the interview. A review of the March 20th video clearly shows the family friend remained largely silent and only interjected at times to ensure that defendant understood what the detectives were asking, and to clarify for detectives what defendant was saying. It is not disputed that the family friend was a mentor to defendant and that the mother wanted him to be present during the interview. We are satisfied that his presence did not interfere with defendant's ability to knowingly, intelligently, and voluntarily waive his Miranda rights.
Defendant also argues that the presence of counsel had little impact on his ability to knowingly and intelligently waive his rights, and that counsel's presence should not "wash away the defendant's personal deficits and vulnerabilities." After he was retained, defendant's attorney decided that defendant would be best served by providing a second statement to police in an effort to facilitate a plea deal. Given the fact that a co-defendant already decided to cooperate and testify against defendant, that was not an unreasonable strategy.
Although defendant's I.Q. is marginal, it is not dispositive in determining whether he understood his Miranda rights. It is "merely a factor in the totality of the circumstances to be considered." State v. Carpenter, 268 N.J. Super. 378, 385 (App. Div. 1993) (finding illiterate twenty-two year old defendant with an I.Q. of 71 and no criminal record, who attended special education classes while in school, understood and waived his Miranda rights), certif. denied, 135 N.J. 467 (1994). Under the totality of the circumstances, defendant knowingly, intelligently, and voluntarily waived his Miranda rights during the March 20th statement. The statement was taken ten days after defendant's initial questioning. Defendant was only questioned for two hours in his March 20th statement, as opposed to the four-hour interrogation that he endured on March 10th. Defendant was informed of his rights before both the March 10th and March 20th statements, and executed a signed waiver agreeing to speak with police on both occasions. Although defendant was a sixteen-year-old juvenile with a low I.Q., he had his mother, his attorney, and his mentor present on March 20th, who were all advised of defendant's rights. Further, the questioning was conducted in a conversational tone, and was not coercive.
Next, defendant argues that his March 20th statement should be suppressed because it was "the inevitable product of the improper first statement." In considering the admissibility of a second statement, we must examine whether it was "the product of unconstitutional police conduct tainting the first[.]" State v. Faucette, 439 N.J. Super. 241, 266 (App. Div.) certif. denied, 221 N.J. 992 (2015). "Factors relevant to this determination include the time between confessions, any intervening circumstances, whether there was a change in place, whether defendant received an adequate warning of his rights, whether the defendant initiated the second confession, the effect of his having previously made a confession, and the 'purpose and flagrancy of police misconduct.'" State v. Hartley, 103 N.J. 252, 283 (1986) (quoting Brown v. Illinois, 442 U.S. 540, 603-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 427 (1975)).
We are satisfied that defendant's March 20th statement was separate and distinct from the March 10th statement. Fundamental to our conclusion is the fact that defendant's counsel initiated the March 20th statement, whereas the March 10th statement was initiated by police. Unlike the March 10th statement where police failed to end their questioning after defendant's mother requested an attorney, there was no police misconduct in the March 20th statement. Moreover, the interviews were given ten days apart and were conducted by different law enforcement personnel.
The circumstances surrounding the second statement were dramatically different from the first. In the March 10th statement, defendant was vomiting, crying, and being yelled at by his mother. In the March 20th statement, the tone was conversational, defendant's mother was not present, and defendant was accompanied by his attorney and his mentor.
Defendant testified he knew he did not have to provide the second statement. Indeed, on March 19th, he refused to proceed without his mother, even though his attorney was present. Employing the Hartley criteria, the second statement was not the product of the first, and any taint from the first statement was attenuated by the ten-day gap between statements and because defendant had the assistance of counsel. Ibid.
B.
Defendant pled guilty to first-degree aggravated manslaughter, first-degree robbery, and third-degree hindering apprehension. Defendant was sentenced in accordance with the terms of his plea agreement to a twenty-five-year term. The judge applied aggravating factors three, risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), and nine, need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge also found mitigating factor seven, no history of prior delinquency or criminal activity, applied. N.J.S.A. 2C:44-1(b)(7). Defendant now claims that the judge erred by "overvaluing" the aggravating factors, and "undervaluing" the mitigating factor.
"A sentence imposed pursuant to a plea agreement is presumed to be reasonable because a defendant voluntarily '[waived] . . . his right to a trial in return for the reduction or dismissal of certain charges, recommendations as to sentence and the like.'" State v. Fuentes, 217 N.J. 57, 70-71 (2014) (quoting State v. Davis, 175 N.J. Super. 130, 140 (App. Div. 1980)). "A judge's sentencing analysis is a fact-sensitive inquiry[.]" State v. Jaffe, 220 N.J. 114, 116 (2014). We must review the record presented before the trial court to determine if its sentence was "based upon findings of fact that are grounded in competent, reasonably credible evidence." State v. Roth, 95 N.J. 334, 363 (1984).
In applying aggravating factor three, the judge noted defendant's "lack of acceptance and responsibility," which was evidenced by his "attempts to place responsibility on his friends and co-defendants who were riding around looking for a place to rob" and his "history of chronic substance abuse."
The finding of any factor must be supported by competent, credible evidence in the record. State v. Case, 220 N.J. 49, 64 (2014). "Speculation and suspicion must not infect the sentencing process; simply put, the finding of aggravating or mitigating factors must be based on evidence." Ibid.
Defendant's version of the offense as provided to the police in the March 20th interview and to probation in the pre-sentence report was that he did not participate in the planning of the robbery, he was not armed, and perforce, he was not one of the shooters.
In response, the State presented evidence that defendant had an active role in the planning and commission of the robbery. Biggins stated that the robbery plan was hatched earlier that day when all three men were together at his house. McCrosson's statement to police and her testimony at Salaam's trial indicated that defendant actually provided turn-by-turn directions to the Absecon Blvd. station after other targeted stations were found to be closed. Finally, Biggins stated that all three men were armed during the robbery and, when they returned to his house afterward, defendant and Salaam both gave him their guns for safekeeping. This testimony finds peripheral corroboration in ballistics analysis of the crime scene, which confirmed that a third unidentified firearm had been used during the robbery.
Thus, the judge's finding that defendant minimized his role in the offense and failed to accept full responsibility is adequately supported in the record.
The judge gave "great weight" to factor nine and noted the need for general deterrence against defendants who violate the law "in such a violent and deadly fashion." We agree that the senseless murder of the owner of a service station during a robbery requires strong general deterrence.
By contrast, the judge gave mitigating factor seven, defendant's lack of a criminal record, "some weight" because "[u]nfortunately, the defendant chose from among the most serious felony offenses for his first foray into criminality."
The sentencing range for the crime to which defendant pled guilty, aggravated manslaughter, is ten to thirty years. N.J.S.A. 2C:11-4(c). The crime that he avoided being tried for, first-degree murder, carried with it a minimum of thirty years without parole and the possibility of a life sentence. N.J.S.A. 2C:11-3(b)(1).
The sentencing judge relied on these facts and on defendant's plea agreement in concluding that the sentence he imposed was reasonable and in the interest of justice.
Defendant also argues that the judge should have applied mitigating factor twelve, willingness of the defendant to cooperate with law enforcement authorities. N.J.S.A. 2C:44-1(b)(12). It is questionable whether a defendant's confession, standing alone, qualifies as "cooperation" within the intent of mitigating factor twelve where a defendant did not identify another perpetrator or assist in solving other crimes. State v. Read, 397 N.J. Super. 598, 613 (App. Div.) certif. denied, 196 N.J. 85 (2008).
There is no evidence that defendant's confession benefitted the State beyond implicating himself the crime. By the time he entered his guilty plea, all other defendants had been convicted either by plea or trial. In fact, a jury panel had been summoned for defendant's trial when he agreed to plead guilty. Biggins was prepared to testify against defendant had he gone to trial, and both Hart and McCrosson had identified defendant and his co-defendants as participants before defendant confessed. We are satisfied that defendant's confession does not warrant an application of mitigating factor twelve and there was sufficient credible evidence in the record for the judge to apply the aggravating and mitigating factors at issue.
Finally, defendant argues that a sentencing reduction or remand is warranted because his twenty-five year sentence is disproportionate to the twelve-year sentence received by co-defendant Biggins.
"Disparity may invalidate an otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232 (1996). In comparing the sentences of two co-defendants, "there is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators." Ibid. (quoting State v. Hubbard, 176 N.J. Super. 174, 175 (Resentencing Panel 1980)). However, a "sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." Ibid. (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). "The question therefore is whether the disparity is justifiable or unjustifiable." Id. at 233.
In Roach, the Court remanded for a determination on whether a thirty-year disparity in sentencing was justifiable where the defendant and two co-defendants "were all found guilty of identical charges, had similar criminal histories, and were assessed the same aggravating and mitigating factors." Id. at 229-30 (footnote omitted). The Court directed the trial judge to:
determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria. The court should then inquire into the basis of the sentences imposed on the other defendant. It should further consider the length, terms, and conditions of the sentence imposed on the co-defendant. If the co-defendant is sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing the defendant in order to avoid excessive disparity.
[Id. at 233.]
Under Roach, because defendant and Biggins were convicted of two different crimes, there was no need for the sentencing court to address the disparity.
On December 22, 2008, Biggins pled guilty to three counts of first-degree robbery and was sentenced to twelve years in prison. On January 26, 2009, Hart and McCrosson pled guilty to conspiracy to possess a controlled dangerous substance and hindering apprehension, and were sentenced to eight years in prison. Co-defendant Salaam proceeded to trial and, in May 2009, was found guilty of two counts of first-degree robbery, but the jury was hung on the charges of felony murder and a third count of first-degree robbery. On August 23, 2010, Salaam entered a guilty plea to felony murder, and was subsequently sentenced to forty years in prison. These convictions all differ from defendant's negotiated conviction for first-degree aggravated manslaughter.
Defendant pled guilty almost four years after Biggins, who agreed to cooperate and testify in any proceedings as part of his plea agreement. The State is free to offer "substantial benefits" to encourage a guilty plea. Corbitt v. New Jersey, 439 U.S. 212, 219, 99 S. Ct. 492, 497, 58 L. Ed. 2d 466, 474 (1978).
Where, as here, "the defendant receives the exact sentence that he bargained for, an appellate court will not upset the sentence if it is 'consistent with the [sentencing] Guidelines[.]'" State v. Tango, 287 N.J. Super. 416, 422 (App. Div.) (quoting State v. Lee, 235 N.J. Super. 410, 415 (App. Div. 1989), certif. denied, 144 N.J. 585 (1996). Defendant's twenty-five year sentence for aggravated manslaughter was imposed pursuant to a plea agreement, and adequately differed from Biggins' twelve-year sentence for first-degree robbery. The disparate crimes of conviction and the cooperation condition in Biggins' agreement justify the sentencing disparity in this case.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).