Opinion
DOCKET NO. A-0046-14T1
07-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GINO N. DISTEFANO, a/k/a GINO N. DISTEPHANO, NICK DISTEFFANO, GINO N. DISTEFFANO and NICK DISTEFANO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 11-06-00803. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On June 28, 2011, a Burlington County grand jury returned Indictment No. 11-06-00803, charging defendant Gino DiStefano with first-degree possession with the intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count one); six counts of third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (counts two, seven, eight, nine, ten and eleven); third-degree possession with the intent to distribute a CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11) (count three); fourth-degree possession of a CDS, N.J.S.A. 2C:35-10a(3) (count four); second-degree possession with the intent to distribute a CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count five); fourth-degree possession with the intent to distribute a CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (count six); and fourth-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (count twelve).
After the trial court denied his motions to suppress physical evidence and his statements to police, on February 4, 2013, defendant pled guilty to count one, first-degree possession with the intent to distribute cocaine. In return for defendant's plea, the State agreed to dismiss the remaining eleven counts of the indictment. The State further agreed to recommend that defendant be sentenced in the second-degree range to eight years in prison with a four-year period of parole ineligibility.
Defendant failed to appear for sentencing on September 6, 2013, and a bench warrant was issued for his arrest. Ultimately, following an unsuccessful motion to withdraw his guilty plea, defendant was sentenced on May 19, 2014, to an eight-year prison term with four years of parole ineligibility.
On appeal, defendant raises the following arguments:
POINT ONE
ANY INCRIMINATING STATEMENTS DEFENDANT MADE TO OFFICER BENNETT MUST BE SUPPRESSED BECAUSE DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION WITHOUT MIRANDA WARNINGS.
POINT TWO
DEFENDANT'S EIGHT-YEAR PRISON TERM WITH FOUR YEARS OF PAROLE INELIGIBILITY IS EXCESSIVE.
After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction and sentence.
I.
We derive the following facts from the record developed at the suppression hearing. Officer Michael Bennett of the Pemberton Police Department testified that he observed defendant in a shopping center parking lot at approximately 6:15 p.m. on November 23, 2010. Bennett followed defendant there for the purpose of executing a search warrant that authorized the police to search defendant's person, his pickup truck, and the residence he was seen leaving from.
Defendant does not appeal the denial of his motion to suppress physical evidence seized pursuant to a search warrant.
Bennett saw defendant exit his pickup truck and enter the front passenger seat of a green Ford Focus. According to Bennett, he approached the Ford, opened the door, pulled defendant out, and placed him in handcuffs. When he opened the door, Bennett smelled the odor of raw marijuana. Bennett then escorted defendant to the rear of the Ford, informed him of the search warrant, and orally advised him of his Miranda rights. Bennett explained that the cards that were often used to administer these Miranda warnings were with the team of detectives that was about to conduct the search of the residence. Defendant told Bennett he understood the warnings.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Bennett testified he then "advised [defendant] we were going to search everything. And I told him it would be in his best interest to talk to me." Under questioning from Bennett, defendant admitted there were six or seven ounces of cocaine and about twenty-two ounces of marijuana in the home, and that it was all in a gym bag on his bedroom floor.
Another officer searched the driver of the Ford and found marijuana. Bennett asked defendant whether he gave the driver the marijuana, and defendant admitted doing so. Defendant was then placed under arrest and transported to police headquarters, where he declined to answer any further questions and requested an attorney.
Defendant testified at the hearing and presented a completely different version of events. He stated that he met his friend in the parking lot and that they were about to go to defendant's parents' home to "smoke a joint." At that point, Bennett ran over to the passenger side of the Ford, pulled out his gun, put it to defendant's head, grabbed defendant by the arm, and ordered defendant out of the car. Bennett then handcuffed defendant and questioned him repeatedly about whether he had any cocaine in the home, and told him he had a warrant to search the home. According to defendant, Bennett never informed him of his Miranda rights, he declined to answer the officer's questions, and he denied selling the marijuana that the other officer found on the driver.
In a thorough oral decision, the judge denied defendant's motion to suppress the statements he made to the police on November 23, 2010. The judge agreed with counsel that the issue "essentially comes down to credibility." The judge found Bennett credible, and accepted his version of the facts. In contrast, the judge found "some real problems with [defendant's] testimony," which he determined was "just simply inconsistent."
II.
In Point I, defendant challenges the admissibility of the statements he purportedly made to Bennett. He argues that the trial court erred in finding Bennett's testimony more credible, and in "downplay[ing] the significance of Bennett's failure to obtain a written waiver from defendant." In response, the State argues that defendant waived his right to appeal the denial of the Miranda motion by entering an unconditional guilty plea to count one. The State further contends the trial court properly determined that Bennett advised defendant of his Miranda rights and that defendant thereafter made incriminating statements after being informed of those rights.
As a preliminary matter, we decline to find that defendant's arguments are procedurally barred. It is true, as the State points out, that while a defendant may appeal the denial of a motion to suppress physical evidence without reserving the right to do so, "unsuccessful challenges to statements and Miranda violations cannot be raised on appeal after a guilty plea, pursuant to [Rule] 3:5-7(d)." State v. Robinson, 224 N.J. Super. 495, 500 (App. Div. 1988). See also State v. DeLane, 207 N.J. Super. 45, 49 (App. Div. 1986) ("If defendant wished to preserve the Miranda issue on appeal, he could have entered a conditional guilty plea pursuant to [Rule] 3:9-3(f) with the approval of the court and consent of the prosecuting attorney."). However, in the present case, defendant was asked in question no. 4(e) on the plea form, "Do you further understand that by pleading guilty you are waiving your right to appeal the denial of all other pretrial motions . . . [?]" Defendant responded "No" to the question. Consequently, we cannot conclude that defendant knowingly waived his right to appeal the denial of the motion to suppress his statements.
Turning then to the substance of defendant's arguments, our analysis is guided by fundamental principles of law that apply to custodial interrogation of suspects. Every person has a privilege against self-incrimination. U.S. Const. amend. V; N.J.R.E. 503. A person can, however, make a knowing and voluntary waiver of the privilege. "Inherent in every Fifth Amendment analysis is the question of whether the statement was voluntary, and, independently, whether the law enforcement officers taking it complied with Miranda." State v. W.B., 205 N.J. 588, 605 (2011).
When the State intends to introduce a defendant's confession at trial, it "must prove beyond a reasonable doubt that . . . [the] confession was voluntary and was not made because the defendant's will was overborne," State v. Knight, 183 N.J. 449, 462 (2005), "and, if custodial, that the defendant was advised of his rights and knowingly, voluntarily and intelligently waived them." W.B., supra, 205 N.J. at 602 n.3.
When reviewing a trial court's denial of a defendant's motion to suppress a statement, we defer to the factual findings of the trial court if they are supported by sufficient credible evidence in the record. See State v. Nyhammer, 197 N.J. 383, 409, cert. denied, 588 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009); see also W.B., supra, 205 N.J. at 603 n.4 (citing State v. Elders, 192 N.J. 224, 242-44 (2007)) ("As the finding of compliance with Miranda and voluntariness turned on factual and credibility determinations, we need only find sufficient credible evidence in the record to sustain the trial judge's findings and conclusions."). That is so because the trial court has had the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).
In view of our deference to the trial court's fact-finding, we will disturb a trial court's findings of fact only when "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). Our review of a trial court's legal conclusions, however, is plenary. State v. Handy, 206 N.J. 39, 45 (2011).
Before the trial court, the State conceded defendant was in custody when he was questioned by Bennett and, therefore, Miranda warnings were a necessary predicate to such questioning. Defendant denies such warnings were given. Moreover, he does not contend he was coerced into making the incriminating statements that Bennett attributed to him. Rather, he denies making those statements. However, the judge rejected defendant's contentions based on the facts as he found them, including his evaluation of witness credibility. There is no basis in this record to disturb the judge's credibility findings, to which we owe deference. See State v. Locurto, 157 N.J. 463, 472 (1999).
Moreover, the fact that Bennett administered the Miranda rights verbally, and defendant did not sign a written waiver of those rights, does not alter our determination. See State v. Warmbrun, 277 N.J. Super. 51, 62 (App. Div. 1994) (noting that "Miranda does not require a written waiver"), certif. denied, 140 N.J. 277 (1995). Here, the judge accepted Bennett's version of the facts. Bennett explained that the written Miranda warning cards were with the officers who were executing the search warrant at the residence, and that defendant understood the verbal warnings and gave the incriminating statements after the warnings were administered. We therefore find sufficient credible evidence in the record from which to conclude that defendant demonstrated a sufficiently "clear manifestation of a desire to waive" his rights. State v. Graham, 59 N.J. 366, 376 (1971) (quoting State v. Kremens, 52 N.J. 303, 311 (1968)). Therefore, the judge's denial of the motion to suppress defendant's statements was proper.
III.
In Point II, defendant argues that the court's analysis and weighing of the aggravating and mitigating factors was in error and that the resulting eight-year jail sentence with four years of parole ineligibility was excessive. This argument requires little discussion.
As the Supreme Court has recently reaffirmed, sentencing determinations are reviewed on appeal with a highly deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014).
The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]Once the trial court has balanced the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010). See also State v. Case, 220 N.J. 49, 65 (2014) (instructing that appellate courts may not substitute their judgment for that of the sentencing court, provided that the "aggravating and mitigating factors are identified [and] supported by competent, credible evidence in the record").
In sentencing defendant, the court found aggravating factor nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The court initially found no mitigating factors. However, because the plea agreement called for defendant to be sentenced one-degree lower, the court was asked to re-examine the mitigating factors so that defendant could receive the benefit of the negotiated sentence pursuant to the plea agreement. The court did so, and concluded that defendant's two prior indictable convictions from 1984 and 1994 were remote. Accordingly, the court found mitigating factor seven, that defendant had led a law-abiding life for a substantial period of time, N.J.S.A. 2C:44-1(b)(7), and imposed a sentence in the second-degree range for defendant's first-degree conviction. In the end, the sentence imposed was patently fair and by no means shocks our judicial conscience.
N.J.S.A. 2C:44-1f(2) provides for the downgrading of sentences:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he [or she] was convicted.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION