State v. Cole

• Decision Date: 22 June 2021
• Docket Number: A-2307-18
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMAINE L. COLE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMAINE L. COLE, Defendant-Appellant.

No. A-2307-18

Superior Court of New Jersey, Appellate Division

June 22, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 10, 2021

On appeal from the Superior Court of New Jersey, Law Division Bergen County, Indictment No. 17-04-0550.

Brian J. Yarzab, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Brian J Yarzab, on the briefs).

Deepa S. Jacobs, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney William P. Miller, of counsel; Catherine A. Foddai, Legal Assistant, on the briefs).

Appellant filed pro se supplemental briefs.

Before Judges Fasciale and Rothstadt.

PER CURIAM

A jury found defendant Jamaine L. Cole guilty of six counts of a seven-count indictment alleging that he conspired with others to commit a burglary and robbery. After his trial, defendant was sentenced to an aggregate term of twenty-seven years in prison, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A 2C:43-7.2.

Defendant appeals from his conviction, arguing the following points:

POINT I

THE TRIAL COURT COMMITTED PLAIN ERROR IN CHARGING THE JURY ON DEFENDANT'S LIABILITY AS A CONSPIRATOR. THE CHARGE FAILED TO EXPRESSLY ACKNOWLEDGE THE STATE'S CONCESSION THAT THE WRONG APARTMENT WAS BURGLARIZED, AND UTTERLY FAILED TO POINT OUT TO THE JURY PORTIONS OF DEFENDANT'S STATEMENT EMPHASIZING THAT THE EVENTS THAT OCCURRED IN THE VICTIMS' APARTMENT WERE NEVER CONTEMPLATED BY

DEFENDANT. THE COURT'S FAILURE TO EMPHASIZE THAT THE WRONG APARTMENT WAS BURGLARIZED OR TO EXPLAIN THE LAW OF CONSPIRACY IN THE CONTEXT OF THE FACTUAL RECORD, DEPRIVED DEFENDANT OF A FAIR TRIAL. (ISSUE NOT RAISED BELOW.)

POINT II

DEFENDANT'S REPEATED REQUEST TO SPEAK WITH HIS GIRLFRIEND BECAUSE HE "NEEDS SOME ADVICE" AND "I JUST DON'T UNDERSTAND," A REQUEST THAT BEGAN IMMEDIATELY FOLLOWING DEFENDANT'S SIGNING OF THE [MIRANDA^[1] WAIVER, COMBINED WITH THE INVESTIGATING DETECTIVE'S MISREPRESENTATION TO DEFENDANT THAT IF HE SPOKE WITH HER "SHE GETS CALLED TO BE A WITNESS" DEMONSTRATES THAT DEFENDANT'S ATTEMPT TO INVOKE HIS RIGHT TO SILENCE WAS OBSTRUCTED BY POLICE AND THAT HIS ATTEMPTED INVOCATION OF HIS RIGHT TO REMAIN SILENT WAS NOT SCRUPULOUSLY HONORED.

POINT III

THE TRIAL COURT'S REFUSAL TO ALLOW CROSS-EXAMINATION OF THE MALE VICTIM ABOUT HIS DELIBERATE MISTRANSLATION OF HIS WIFE'S TESTIMONY DESCRIBING ONE INTRUDER AND REFUSAL TO ALLOW CROSS-EXAMINATION OF BOTH ADULT VICTIMS ON WHETHER THEIR TESTIMONY WAS INFLUENCED BY THE BERGEN COUNTY PROSECUTOR'S OFFICE'S SUBMISSION OF AN INDISPENSABLE CERTIFICATION SUPPORTING THEIR U VISA APPLICATION CONSTITUTED REVERSIBLE ERROR.

POINT IV^[2]

SINCE THE PROCEDURES FOR APPLYING FOR A TELEPHONIC ARREST WARRANT WERE NOT COMPLIED WITH, AND DID NOT SATISFY THE PROBABLE CAUSE STANDARD, THE "TOTALITY OF THE CIRCUMSTANCES" REQUIRES THE INVALIDATION OF THE ARREST WARRANT AND [DEFENDANT'S] CUSTODIAL STATEMENT BE SUPPRESSED.

We are unpersuaded by defendant's arguments and affirm his conviction.

I.

The relevant facts leading to defendant's arrest and conviction as developed at trial are summarized as follows. On the night of December 11, 2016 into the early morning hours of December 12, 2016, the victims, Eric, ^[3] the husband, Mary, the wife, and Kyle, their five-year-old son, were asleep in their apartment in Mary and Eric's room.

During the night of the incident, Mary woke up after hearing a loud noise. She could not tell where the noise was coming from, so she went to the kitchen but did not see anything and went back to their bedroom. A minute or two later, she heard another noise, this one much louder than the first, making her believe something had broken. This time, she got scared and woke her husband up. Eric got up and walked to the kitchen and she followed behind him. Once outside their bedroom, Mary "saw that a man was getting up with a mask and a pistol." She was unable to see his face because he had a mask on but saw that he had a gun aiming at them. She ran back to their bedroom and hid under the covers with Kyle tucked to her chest.

Eric remained in the kitchen. The man, who was taller than Eric and wearing a red hooded sweatshirt and ski mask, asked Eric several times where the money and the weed were. He was carrying a black handgun, of the type that "police have." Eric began to retreat into the hallway, where the person pushed him into the bathroom and began to kick Eric and hit him with the gun. Eric did not see another person, but he heard other voices, asking where the money and the weed were. Eric believed this went on for about three or four minutes.

While hiding in the bedroom, Mary heard noises in the hallway, but she could not understand what the voices were saying because she did not speak English fluently. While she was in bed holding Kyle, a man came into the room with a gun aimed out in front of him, when he entered, Mary made a "noise" because she was scared, and the man turned to her and Kyle and aimed the gun at them. The man went towards Kyle's bedroom, which was connected to his parents' room, and was saying something in English. She could tell from his tone of voice that he was "asking where something was," and that "he wanted something."

The man went through the computer desk drawers, Mary's dresser drawers, and after finding nothing but paper and clothing, threw the objects that were on top of her dresser onto the floor. She could not see his face because he was wearing a mask and only saw that he was wearing a black sweatshirt with a hood. Another person stood in the doorway and the two intruders began talking, but Mary did not know what they said.

After the intruders left, Eric went upstairs to the portion of the house where the owner lived and told him what had just occurred. The homeowner's wife then called the police. Detective David Esposito of the Lodi Police Department responded to the scene. Upon his arrival, he noticed two home security cameras mounted on the house. Esposito spoke with the homeowner and the homeowner's son and reviewed the footage from the videos with help from the son.^[4] From the surveillance footage, neither Esposito, the homeowner, nor the homeowner's son could identify any of the four individuals depicted.

Detective Joseph Savino with the Bergen County Sheriff's Office also responded to the scene. According to Savino, the points of entry into the home appeared to be a pushed in air conditioner unit and the entrance door to the basement apartment. During his investigation, he recovered a partial handprint from the air conditioning unit. At trial, the parties stipulated to the fact that the palm print from the air conditioning unit matched defendant's palm print, which the police already had on file.

Meanwhile, Esposito spoke with the victims at the police headquarters. Because Mary could not speak English well, Eric interpreted her account of the event for Esposito. After obtaining the victims' statements, Esposito applied for an arrest warrant. In the affidavit of probable cause, Esposito wrote that defendant entered the victims' home by pushing in an air conditioner and then pushing the victim to the ground, pointed a firearm at him, and attempted to strike the victim in the head. Esposito also wrote that defendant asked where the weed and money were, and that a firearm was also pointed at the victim's wife and five-year-old child. Based on this information, a Municipal Court Judge signed the arrest warrant for defendant and the police arrested him ten days later.

On the day of defendant's arrest, Detective Frank Gallucci with the Bergen County Prosecutor's Office interviewed defendant. During the interrogation, defendant admitted to being at the scene, but denied going into the house and said he only saw one person go inside but did not know the name of that person. He stated many times that he did not condone aiming a gun at a child and he also explained that he was not involved beyond pushing in the air conditioning unit.

A grand jury later returned an indictment charging defendant with two counts of first-degree robbery, N.J.S.A. 2C:15-1; and one count of the following: second-degree conspiracy to commit armed burglary and/or armed robbery, N.J.S.A. 2C:5-2; second-degree burglary, N.J.S.A. 2C:18-2; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(a); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2).

Before his trial, defendant filed a motion to suppress his custodial statement, which was denied after a hearing. His motion for reconsideration was also denied.

During trial, Gallucci testified regarding the investigation and his interrogation of defendant. The State also played defendant's statement for the jury. Gallucci confirmed that he believed the target of the robbery was a suspected drug dealer, related to the homeowner. He also testified that he identified defendant as one of the individuals on the surveillance footage after reviewing it.

After the State rested, defendant made a Reyes^[5] motion, which was denied. The jury convicted defendant of all counts except count six, unlawful possession of a weapon. Thereafter, the judge sentenced defendant and entered his judgment of conviction. This appeal followed.

II.

We begin our review by addressing defendant's challenge raised for the first time on appeal, to the conspiracy instruction given by the trial court. Defendant argues this instruction constituted plain error because the court did not...