State v. Cotto

Decision Date18 April 2022
Docket NumberDOCKET NO. A-4063-18
Parties STATE of New Jersey, Plaintiff-Respondent, v. Steve COTTO, a/k/a Steven Sosa, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

471 N.J.Super. 489
274 A.3d 618

STATE of New Jersey, Plaintiff-Respondent,
v.
Steve COTTO, a/k/a Steven Sosa, Defendant-Appellant.

DOCKET NO. A-4063-18

Superior Court of New Jersey, Appellate Division.

Argued January 26, 2022
Decided April 18, 2022


Marc M. Yenicag, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Marc M. Yenicag, on the briefs).

Caitlinn Raimo, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Caitlinn Raimo, of counsel and on the brief).

Before Judges Hoffman, Geiger and Susswein.

The opinion of the court was delivered by

SUSSWEIN, J.A.D.

274 A.3d 625
471 N.J.Super. 501

Defendant appeals from his jury trial conviction for aggravated arson. He contends the trial court erred in denying his motion to suppress statements he made during a custodial interrogation because the interrogating officers did not inform him that he would be charged with aggravated arson when they administered the Miranda 1 warnings. He also contends the court committed errors during the trial that individually and collectively require us to vacate his conviction and remand for a new trial. After carefully reviewing the record in view of the applicable principles of law, we affirm.

471 N.J.Super. 502

I.

We discern the following facts from the trial record. At approximately 4:30 a.m., on July 17, 2016, Irvington Police Officer Rhoniel Edwards responded to a fire at a nightclub on Clinton Avenue in Irvington. The building housing the nightclub is comprised of three stories with private residences on the second and third floors. Police found pieces of burnt cloth, pieces of a broken glass bottle, and a plastic fuel canister on the sidewalk in front of the nightclub.

Officer Edwards testified that when he arrived on the scene, the awning of the first-floor business was on fire. As he waited for the fire department to arrive, the fire "became more aggressive" and "started making its way to the second floor." Edwards used the fire extinguisher in his police car to put out the fire.

After the fire department arrived, Edwards canvassed the neighborhood to locate any surveillance cameras and any possible witnesses or suspects. He did not find any witnesses or suspects, but located four security cameras from businesses nearby, as well as a security camera at the building that housed the nightclub.

Essex County Prosecutor's Office (ECPO) Detectives Joseph Davis and Lance Nero responded at approximately 7:40 a.m. Davis observed soot damage on the front door and window, and fire damage to a wooden sign for the nightclub on the front of the building. Davis testified that he smelled gasoline, and also observed and photographed a "burnt spot on the sidewalk in front" of the nightclub.

The manager of the nightclub, Frandsen Clervoyant, arrived and played video surveillance recordings for the detectives. The exterior camera recording showed an individual starting the fire. Davis also reviewed surveillance footage from inside the nightclub that had been recorded while it was still open for business the night before. Davis determined that an individual shown in the interior video recording appeared to be the same person who was shown setting the fire in the exterior-view recording.

471 N.J.Super. 503

Based on the video recordings, Davis issued a "be on the lookout" (BOLO) alert for an "adult male approximately [forty] to [fifty] years of age, ... thin to medium build, wearing a tee shirt, [and] what appeared to be dark pants, possibly jeans, and sneakers." The alert also included a description of a vehicle, specifically, "a dark colored older model four door sedan with a different colored hood."

Clervoyant testified at trial that he closed the club a little later than normal on the night of the fire, around 2:00 or 2:05 a.m., because a man who he recognized from the neighborhood had come in and bought two or three drinks. Clervoyant did not know the man's name. Although Clervoyant testified that he would be able to

274 A.3d 626

recognize that individual, he answered "[n]o" when asked if that person was in the courtroom.

During the investigation and again at trial, the State showed Clervoyant a series of photographs taken from security cameras both inside and outside the nightclub to help identify the man in the surveillance video seen setting the fire. The first was a photograph that depicted the man who Clervoyant identified as the final customer who was in the club and who Clervoyant knew was from the neighborhood. The prosecutor also showed him a screenshot photograph taken inside the nightclub that depicted a woman and two men near a pool table. Clervoyant identified the woman as a dancer at the nightclub. Clervoyant identified one of the men as a custodian at the nightclub. Clervoyant did not know the other man in the photograph. A third screenshot photograph showed the dancer and the unidentified man from the second photograph standing outside of the club.

Detective Davis testified that he knew which direction the car described in the BOLO was travelling based on surveillance video recordings obtained from the surrounding businesses. Because Clervoyant had reported that the unidentified man was from the neighborhood, the detectives examined open-source tax records pertaining to properties located approximately within a block of the nightclub. The detectives obtained the names of the people

471 N.J.Super. 504

associated with those properties and then obtained photographs of those people from the Division of Motor Vehicles (DMV) database to determine whether any of them matched the description of the person who started the fire.

Davis, Nero, and ECPO Sergeant Christopher Smith also canvassed the area surrounding the nightclub to look for the car in the video. They observed a car parked in a driveway on Howard Street that fit the description of the car in the BOLO. They were able to view the license plate number from the street and ran it through the DMV computer system. Davis testified that they also examined the property records for the address where the car was parked and determined that defendant lived there. Upon determining defendant's identity, they checked whether he had any outstanding arrest warrants. They discovered that he had open traffic warrants.2

On August 5, 2016, Davis, Nero, Smith, and other law enforcement officers executed the open traffic warrants and arrested defendant at his workplace in Paterson. Defendant was handcuffed and transported to the ECPO Major Crimes Bureau headquarters for questioning.3 The ensuing stationhouse interrogation was electronically recorded pursuant to Rule 3:17.

In December 2016, an Essex County Grand Jury returned a one-count indictment charging defendant with second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(2).

Defendant moved to suppress statements he made during the August 5 stationhouse interrogation. On November 6, 2017, the trial court convened a suppression hearing at which the State presented testimony from the lead detective who conducted the interrogation. On December 1, 2017, the court issued an oral

471 N.J.Super. 505

opinion, concluding that defendant had knowingly, voluntarily, and intelligently waived his

274 A.3d 627

Miranda rights. The judge thereupon denied defendant's motion to suppress.

A jury trial was held on January 23, 24, 29, and 30, 2019. On February 1, 2019, the jury found defendant guilty of aggravated arson. On April 12, 2019, the trial judge sentenced defendant to a term of seven years imprisonment. This appeal followed.

Defendant raises the following contentions for our consideration:

POINT I

THE TRIAL COURT ERRED WHEN IT FOUND THAT MR. COTTO KNOWINGLY AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS BECAUSE THE INVESTIGATING OFFICERS DID NOT, BUT WERE OBLIGATED TO, INFORM MR. COTTO OF THE POTENTIAL CHARGES FOR ARSON AGAINST HIM PRIOR TO ANY REQUEST THAT HE WAIVE HIS MIRANDA RIGHTS. (Partially Raised).

POINT II

THE TRIAL COURT ERRED IN PERMITTING, OVER DEFENSE COUNSEL'S OBJECTION, DET. DAVIS TO TESTIFY AS AN EXPERT. DET. DAVIS' EXPERT TESTIMONY WAS UNESSENTIAL TO THE STATE'S CASE AND SERVED ONLY TO ENHANCE DAVIS' CREDIBILITY AS THE STATE'S CHIEF INVESTIGATOR AND PRIMARY FACT WITNESS. ANY PROBATIVE VALUE OF DAVIS' EXPERT TESTIMONY CLEARLY WAS OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE.

POINT III

THE TRIAL COURT ERRED IN NOT EXCISING FROM DEFENDANT'S RECORDED STATEMENT NUMEROUS PREJUDICIAL COMMENTS BY THE INVESTIGATING OFFICERS EXPRESSING LAY OPINION TESTIMONY THAT DEFENDANT WAS THE INDIVIDUAL DEPICTED ON VIDEOS SETTING FIRE TO THE CLUB. (Not Raised Below).

POINT IV

THE JURY CHARGE WAS FUNDAMENTALLY FLAWED. IN CHARGING THE JURY, THE TRIAL COURT FAILED TO ALERT THE JURY TO EVIDENCE IN THE
...

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9 cases
  • State v. Watson
    • United States
    • New Jersey Superior Court — Appellate Division
    • 6 Junio 2022
    ...must deliver a specifically tailored instruction relating to the facts of the case to the applicable law." State v. Cotto, 471 N.J. Super. 489, ––––, 274 A.2d 618 (App. Div. 2022) (quoting State v. T.C., 347 N.J. Super. 219, 240, 789 A.2d 173 (App. Div. 2002) ).In Berry, we recently address......
  • State v. Hahn
    • United States
    • New Jersey Superior Court — Appellate Division
    • 17 Agosto 2022
    ...v. Diaz, 470 N.J. Super. 495, 270 A.3d 392 (App. Div. 2022), filed before the Court issued its reversal in Sims, and State v. Cotto, 471 N.J. Super. 489, 274 A.3d 618 (App. Div. 2022), filed after the Court's decision in Sims. Defendant argues Diaz should control our disposition of his appe......
  • State v. Sheppard
    • United States
    • New Jersey Superior Court — Appellate Division
    • 29 Agosto 2023
    ...evidence, we therefore conclude that the evidentiary error did not "'truly prejudice[] the defendant or affect[] the end result.'" Cotto, 471 N.J.Super. at 537 (quoting J.R., 227 N.J. at 417). IV. In Point III, defendant argues the judge erred in admitting his statement that "[he] injured h......
  • State v. C.J.L.
    • United States
    • New Jersey Superior Court — Appellate Division
    • 18 Abril 2022
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