State v. Amer
| Decision Date | 31 March 2022 |
| Docket Number | DOCKET NO. A-3047-18 |
| Citation | 471 N.J.Super. 331,272 A.3d 1264 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Rami A. AMER, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Shane D. Avidan, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Alison Perrone, Assistant Deputy Public Defender, of counsel; Shane D. Avidan and Harris Fischman, Designated Counsel, admitted pursuant to Rule 1:21-3(c), on the briefs).
Dana R. Anton, Special Deputy Attorney General/Acting Sr. Assistant Prosecutor, argued the cause for respondent (Christine A. Hoffman, Acting Gloucester County Prosecutor, attorney; Dana R. Anton, on the brief).
Before Judges Messano, Rose and Enright.
The opinion of the court was delivered by
ENRIGHT, J.A.D.
Defendant Rami A. Amer appeals from his February 11, 2019 convictions stemming from a series of "smash and grab" burglaries. We affirm defendant's convictions and remand for resentencing pursuant to State v. Torres, 246 N.J. 246, 250 A.3d 433 (2021).
During the period between November 12, and November 21, 2016, multiple burglaries occurred in municipalities throughout Gloucester County. The modus operandi was essentially the same. The suspect smashed the glass of a storefront, entered the business, and removed cash found on the premises. Some of the burglaries were captured on surveillance footage while in progress. Although the quality of the footage neither permitted identification of the suspect nor definitive identification of the light blue minivan the suspect used when committing the offenses, some footage captured images of the hooded, masked suspect wearing gloves and using a hammer to smash the glass, and displayed a damaged hubcap on the suspect's vehicle.
On November 19 at approximately 2:30 a.m., defendant was stopped by an officer from the Harrison Township Police Department. Prior to the stop, the officer saw one of the vehicle's headlights was out, observed defendant driving partially over the white line, and wanted to "double check[ ] on why [defendant] was in the area" that late at night. Defendant was driving a light blue Chrysler Town and Country minivan with Pennsylvania plates and had turned into a local shopping center. He received a ticket for the broken headlight and was permitted to leave without further incident.
The next day, officers from the same police department were asked to investigate burglaries committed at a local pet supply store and a spa. The businesses were situated in the same plaza where defendant was pulled over for the motor vehicle stop. Color surveillance footage from the pet supply store showed a light blue minivan with a broken hubcap drive past the store at around 7:10 a.m., and a masked and hooded suspect wearing gloves shatter the storefront entrance with a hammer.
The police investigated whether there were any light blue minivans in their system that matched the one used during the burglaries. Their search revealed defendant's motor vehicle stop from November 19 and that his minivan was registered to Laila Amer, defendant's wife. Accordingly, the police drove past defendant's nearby residence, and found a light blue minivan parked in his driveway. The minivan was missing part of a hubcap.
On November 21, 2016, officers in Harrison Township responded to a complaint of another burglary, this time at a local bagel shop. The owner of the shop reported he received an alert shortly after 3:00 a.m. and when he went to the scene, he saw the glass front door was smashed. Surveillance footage obtained from a nearby bank captured the image of a light blue Chrysler minivan at the scene as the burglary was in progress.
That same morning, officers from the Mantua Township Police Department received a report of an erratic driver on Bridgeton Pike, the same thoroughfare where many of the burglaries had occurred. The description of the erratic driver's car purportedly matched the description of the minivan seen on surveillance video from recent burglaries. The police found the driver, later identified as defendant, in a parking lot on Bridgeton Pike. He was alone and sitting in the driver's seat; the rear passenger side hubcap on his car was broken. Defendant was removed from the vehicle and placed in a police car.
Although officers from Mantua Township stopped defendant, Detective Adam McEvoy, from the Harrison Township Police Department, joined them at the scene after learning the suspect's car might match the description of the minivan associated with burglaries in the area. Detective McEvoy spoke to defendant while defendant was seated in the police car and given his Miranda 1 rights. The detective testified at trial that defendant asked him to retrieve his wallet and phone from inside his car, and Detective McEvoy complied with the request. When he went to pick up defendant's items, the detective saw a red hammer inside the minivan, purportedly matching the description of the hammer used by the suspected burglar as seen on surveillance footage. He also saw a large number of loose coins inside the minivan. The detective secured the hammer and loose change. Once defendant was removed from the minivan, the police also discovered shards of glass on the soles of defendant's work boots.
Defendant was transported to the Harrison Township Police Department for a custodial interview and when he arrived, officers observed a cut on his right arm. Defendant agreed to waive his Miranda rights and speak to members of various police departments who inquired about burglaries committed in their municipalities. The interview lasted several hours, during which defendant was afforded a break. He did not confess to any of the burglaries and finally advised he was unwilling to answer more questions.
While in custody, defendant executed a consent to search form for the minivan. Additionally, his wife signed another form authorizing the search and was present for the search. During the search, the police found black gloves matching those seen on surveillance video of some of the burglaries, as well as black clothing, a flashlight, and shards of glass.
Several months later, separate indictments were issued against defendant for his alleged role in the "smash and grab" burglaries, as well as related offenses; in June 2018, he was charged under a superseding indictment with seventeen counts of third-degree burglary, N.J.S.A. 2C:18-2(a)(1), five counts of third-degree theft, N.J.S.A. 2C:20-3(a), two counts of fourth-degree theft, N.J.S.A. 2C:20-3(a), two counts of fourth-degree attempted theft, N.J.S.A. 2C:5-1(a)(1), and 2C:20-3(a), and eleven counts of fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1), for a total of thirty-seven counts.
While defendant's case in New Jersey was pending, he began serving a state prison sentence in Pennsylvania for similar offenses. He requested disposition of his charges in New Jersey under the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15; the State of New Jersey received his request by February 23, 2018.
In May 2018, the trial judge in the present matter issued a scheduling order, directing any suppression motions related to the November 2016 warrantless search be filed within two days. The judge further ordered any other motions and supporting briefs be filed no later than June 1. The defense filed two suppression motions on May 21, but its corresponding letter briefs were submitted after the deadline fixed by the court. One such brief was filed electronically on the day of the suppression hearing and referenced a search warrant and a canine sniff, neither of which were implicated in this matter. In any event, defendant's filings confirmed he sought suppression of the items seized from his person and his minivan, as well as statements made during his custodial interview.
On June 29, 2018, the judge proceeded with the suppression hearing. The State called one witness — the Woolwich Township police officer who conducted the search of defendant's minivan in the presence of defendant's wife and was present for a portion of defendant's custodial interview. The officer confirmed that after defendant's arrest, he was given his Miranda rights, was "very cooperative," and agreed to the search of the minivan. The officer also stated defendant's wife consented to the search.
In his closing argument, defense counsel noted that he presented the court with Defendant's attorney did not dispute defendant was Mirandized at the commencement of his custodial interview, but contended defendant was "tired" during his interview. The judge responded to counsel's remarks, stating:
This was a motion that you filed to challenge the search ... that comes from the consent forms plus [defendant's] Miranda [rights] with regard to the statement. It's all right there apparently on the video but no one ever gave it to the [c]ourt. Your argument is that ... he is so tired[,] that he is so sleepy, so groggy, so fatigued that his will is overborne and yet you don't give me the video to assess that.
Defense counsel continued his argument, stating:
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... ... the judge's findings. In sum, we affirm the convictions ... and remand for the limited purpose of allowing the judge to ... provide "an explanation for the overall fairness of ... [the] sentence" as required by Torres ... 246 N.J ... at 272; see also State v. Amer , 471 N.J.Super. 331, ... 358-59 (App. Div. 2022) (vacating and remanding sentence ... entered in 2019 in light of Torres ), aff'd ... as modified on other grounds , 254 N.J. 405 (2023) ... Affirmed ... Remanded solely for the limited purpose of ... ...
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