State v. Wright
| Decision Date | 29 February 2016 |
| Citation | 133 A.3d 656,444 N.J.Super. 347 |
| Parties | STATE of New Jersey, Plaintiff–Respondent, v. Stephon G. WRIGHT, Defendant–Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
444 N.J.Super. 347
133 A.3d 656
STATE of New Jersey, Plaintiff–Respondent,
v.
Stephon G. WRIGHT, Defendant–Appellant.
Superior Court of New Jersey, Appellate Division.
Submitted Dec. 7, 2015.
Decided Feb. 29, 2016.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Rookmin Cecilia Beepat, Assistant Prosecutor, on the brief).
Before Judges SABATINO, ACCURSO and O'CONNOR.
The opinion of the court was delivered by
ACCURSO, J.A.D.
Following the denial of defendant Stephon G. Wright's motions to exclude the testimony of the victim identifying Wright as the man who robbed him at gunpoint and to suppress statements Wright made to the police, he entered a conditional guilty plea pursuant to a negotiated agreement to first-degree armed robbery, N.J.S.A. 2C:15–1 ; and was sentenced to eight years in state prison subject to the periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43–7.2. He
appeals pursuant to Rule 3:9–3(f), contending the court erred in denying his motions and, in the alternative, that his sentence is excessive. He frames the issues as follows:
POINT I
THE COURT BELOW COMMITTED REVERSIBLE ERROR IN DENYING THE MOTION TO SUPPRESS THE IDENTIFICATION, AS [THE VICTIM'S] OUT–OF–COURT IDENTIFICATION PRESENTED A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION, AND THE IDENTIFICATION PROCEDURE WAS NOT PROPERLY RECORDED. (Partially Raised Below).
POINT II
MR. WRIGHT WAS NOT APPRISED OF HIS MIRANDA RIGHTS PRIOR TO BEING SUBJECTED TO A CUSTODIAL INTERROGATION, AND THEREFORE, THE COURT BELOW ERRONEOUSLY DENIED HIS MIRANDA MOTION.
POINT III
THE MATTER SHOULD BE REMANDED FOR RESENTENCING.
A. The Sentencing Judge Engaged in Double Counting.
B. The Sentencing Court Erred in Finding Aggravating Factors Three, Six, and Nine.
We find no error in the court's decision to admit the identification evidence under the test established in State v. Henderson, 208 N.J. 208, 27 A. 3d 872 (2011), and thus reject defendant's arguments on that point. We also reject Wright's arguments
regarding his sentence. We agree, however, that his statements to the police were the product of the equivalent of custodial interrogation without required Miranda1 warnings and should have been suppressed. Accordingly, we reverse the court's decision to admit the statements and remand for further proceedings.
The Pre-trial Hearing
Walking home from the Journal Square PATH station in Jersey City at about three a.m. in the middle of the summer, three brothers were accosted by a man on a bicycle. The man pointed a silver gun at them and demanded they give him what they had in their pockets. The brothers handed over an iPhone and about fifteen dollars. After the man rode off, the young men hurried
toward their uncle's house and used a cell phone they had not relinquished to call the police.
In addition to providing the police a description of their assailant, the young men used an "app" to track the stolen phone to the area of Grand and Prescott Streets. Jersey City police officers Andrek and Harrison were dispatched to that location to search for an armed black male, approximately 5' 6? or 5'7?, wearing a white t-shirt and grey sweats and riding a blue bike. They shortly came across an open garage with three or four people lounging inside. A blue bike rested on the ground nearby.
The officers drew their weapons and entered the garage. Although none of the occupants claimed ownership of the bike, the officers noticed one man, later identified as defendant, who appeared nervous and matched the description of the robber. The officers separated him from the group to speak to him outside the garage. Officer Andrek testified at the hearing that the officers immediately informed defendant he was being detained because he fit the description of the perpetrator of an armed robbery that had just taken place near Journal Square. He also radioed the precinct they had a suspect.
Three other officers arrived as backup within a minute or so. Officer Andrek detained defendant outside the garage, while Officer Harrison joined the three newly arrived officers in a search of the area. Shortly thereafter, Andrek was advised by radio that Detective Frascino was en route to the garage with one of the victims to see whether he could identify defendant. Andrek testified he relayed that information to defendant.
Before the victim arrived, however, one of the other officers found a gun in an alleyway two houses away from where Officer Andrek was holding defendant. Andrek testified that when he was informed a gun had been recovered, he relayed that information to defendant as well. That testimony led to the following exchange:
Prosecutor: What, if anything, was Mr. Wright[']s reaction, expression, however you want to word it, when you informed him of these two things?
Officer Andrek: His expression was so—he was caught. He put his head down and sighed, and then he said fuck you, I got the cell phone, it's over there. And he motioned his head towards the direction of the gun.
The prosecutor followed up with this question.
Prosecutor: And, again, this wasn't based on questioning by you or [Officer] Harrison, this was Mr. Wright saying this only after you informed [him] the victim was on the way, and the handgun was recovered?
Officer Andrek: Correct.
Although the officer conceded on cross-examination that it would have been "prudent" to have advised defendant of his rights when the officer began "relaying information to [defendant] about the sequence of the investigation," defendant was only administered his Miranda rights after he admitted possessing the cell phone.
Following Wright's admission, officers quickly recovered the phone in an alley near where the gun was found and radioed the information to the other units involved in the investigation. The victim heard that radio transmission while seated in the back seat of Detective Frascino's car on the way to the showup. The victim testified he also heard over the radio the police had recovered the gun as well. He claimed that not only had he heard other officers had recovered his cell phone before they arrived at the place the police were holding defendant, but that Detective Frascino told him that as well.2
The victim testified that when they arrived at the showup, he remained in the car while some officers stood nearby with a man in handcuffs whom they said was "the guy we found with the phone" and asked, "is this the guy who robbed you[?]" He testified he was "positive" that defendant was "the right guy" and that the entire incident, from robbery to identification, took place in less than an hour. In response to the judge's question of
whether "the fact that you heard about the phone being recovered have any impact on your identification at all," the victim said, "No it didn't."
Detective Frascino testified that he explained the identification procedure to the victim,3 but denied telling him the suspect had been found with the phone at the time of the showup. Instead the detective maintained the information that the phone had been located "came over the air, and [the victim] was excited in the car and said they found my phone, and I only stated that that's what they said over the air." The detective also testified defendant was in handcuffs when they arrived for the showup, but that he had the cuffs removed before walking defendant to the car for the victim's identification. He did allow, however, that it was possible the victim saw defendant in handcuffs when they first pulled up.
Trial Court Opinion
The judge issued a written opinion denying the Wade4 motion. After summarizing the testimony of the witnesses and reviewing the Supreme Court's discussion of system
and estimator variables5 in Henderson, the judge found that without doubt the showup was impermissibly suggestive. He wrote:
After extensive questioning by the attorneys and the Judge, the victim stated that he was told "they have the person who has the phone." The victim specifically stated that the Officers told him this prior to showing him the suspect. The "suspect" was brought to the police car in handcuffs and positively identified as the perpetrator. There was only one individual that was brought to the unmarked vehicle for...
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