State of New Jersey v. Andre Harris

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3228-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE HARRIS,

Defendant-Appellant. ________________________

Argued April 16, 2024 – Decided May 20, 2024

Before Judges Mayer, Whipple and Augostini.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 16-06- 0997 and 16-12-1998.

Colin Sheehan argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Taylor L. Napolitano, Assistant Deputy Public Defender, of counsel and on the brief).

Melinda A. Harrigan argued the cause for respondent (Raymond S. Santiago, Monmouth County Prosecutor, attorney; Melinda A. Harrigan, Assistant Prosecutor, of counsel and on the brief).

Defendant Andre Harris appeals from his June 10, 2022 judgment of

conviction for attempted murder, conspiracy to commit murder, weapons

offenses, and desecration of human remains after entering a guilty plea.

Defendant focuses his arguments on the April 16, 2019 order denying his motion

to suppress statements he made to the police. He also appeals from the sentence

imposed. We affirm the conviction but remand for resentencing.

We incorporate the facts from our opinion in a companion case, State v.

Sweeney, No. A-3186-21 (App. Div. May 20, 2024), issued the same date as this

opinion. In Sweeney, a jury convicted defendant Jennifer Sweeney of murder

and other offenses in connection with the shooting of Tyrita Julius in November

2015 and Julius's murder in March 2016.

In brief, Sweeney contacted defendant and demanded he kill Julius.

Sweeney threatened to contact defendant's family if he refused to kill Julius. In

November 2015, Sweeney gave defendant a gun to shoot and kill Julius.

Although defendant succeeded in shooting Julius several times, he did not kill

her.

A-3228-21 2 In March 2016, Julius disappeared. As part of the investigation into

Julius's disappearance, the police obtained defendant and Sweeney's cell phone

and E-ZPass records.

In June 2016, unrelated to the murder of Julius, a grand jury indicted

defendants on several drug related charges (drug case). On August 16, 2016,

the police arrested defendant on a warrant for a motor vehicle violation. At the

police station, defendant gave a recorded statement to the police. At the start of

the interview, the police told defendant he was under arrest based on the motor

vehicle warrant. The police gave defendant the Miranda1 warning and waiver

form. Defendant acknowledged his rights by responding "yes" when asked by

the officers if he understood his rights and agreed to waive his rights by

providing a voluntary statement. Defendant then initialed and signed the

Miranda warning and waiver form.

During his recorded statement, defendant consented to a search of his

home. While still being interviewed at the police station, other police officers

executed a search warrant of defendant's home and discovered Julius's body

buried in a shallow grave in defendant's backyard.

1 Miranda v. Arizona, 384 U.S. 436 (1966). A-3228-21 3 In December 2016, a grand jury indicted defendant on charges related to

Julius's murder and other offenses (murder case). The charges in the murder

case included the following: first-degree attempted murder, N.J.S.A. 2C:5-1

and 2C:11-3 (counts one and two); first-degree conspiracy to commit murder,

N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:11-3(a) (count three); second-degree

unlawful possession of a weapon, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b)

(count four); second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (count five); first-degree purposeful or knowing murder,

N.J.S.A. 2C:11-3(a)(1) and/or (a)(2) (count six); third-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven); second-

degree disturbing or desecrating human remains, N.J.S.A. 2C:22-1(a)(1) and/or

(a)(2) (count eight); and fourth-degree tampering with physical evidence,

N.J.S.A. 2C:28-6(1) (count nine).

Prior to trial, defendant moved to suppress his statement to the police in

the murder case. The judge conducted several days of testimonial hearings on

defendant's motion. 2 In a written opinion, the judge denied defendant's April

16, 2019 motion.

2 The hearing included testimony related to Sweeney's motion to suppress her statements to the police. A-3228-21 4 On May 30, 2019, defendant pleaded guilty to certain charges under both

indictments pursuant to a plea agreement and a cooperation agreement. Under

the cooperation agreement, defendant agreed to testify truthfully against

Sweeney at the murder trial.

In accordance with a negotiated plea in the murder case, defendant agreed

to plead guilty to attempted murder, conspiracy to commit murder, possession

of a weapon for an unlawful purpose, and disturbing or desecrating human

remains. Defendant also agreed to plead guilty to obtaining controlled

dangerous substances (CDS) by fraud in the drug case.

In exchange for his guilty plea, the prosecutor agreed to dismiss the

remaining charges in each indictment and recommend an aggregate sixteen-year

prison sentence, subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2(a), with the sentences to run concurrently.

Also on May 30, 2019, defendant signed the plea form. In response to

Question 4.d., defendant acknowledged he was not waiving his right to appeal

the denial of a motion to suppress physical evidence under Rule 3:5-7(d), or the

denial of acceptance into a pretrial intervention program under Rule 3:28. In

response to Question 4.e., defendant circled, "Yes," indicating he "underst[ood]

that by pleading guilty [he was] waiving [his] right to appeal the denial of all

A-3228-21 5 other pretrial motions." In the blank space for listing any exceptions to waiving

the right to appeal other pretrial motions, "N/A" was handwritten. Although

defendant could have listed exceptions to his waiving the right to appeal any

other pretrial motions in this section of the plea form, including the pretrial

suppression motion, he did not do so. In responding to Question Thirteen,

defendant expressly "reserved [the] right to argue for [a] lesser sentence."

At the plea hearing, defendant testified he reviewed and discussed the

terms of the plea agreement and cooperation agreement with his attorney. The

judge also reviewed the plea agreement and cooperation agreement with

defendant. After hearing defendant's testimony, the judge accepted defendant's

guilty plea, concluding defendant knowingly and voluntarily waived his rights

in entering into the plea.

Defendant then testified against Sweeney at trial in the murder case. The

jury ultimately convicted Sweeney of murder and other offenses.

On May 6, 2022, defendant appeared for sentencing in accordance with

his plea agreement. Defendant's attorney requested the judge sentence

defendant to a lesser term than stated in the plea agreement. Specifically,

counsel asked that defendant be sentenced in accordance with a second-degree

offense and receive a term of seven years subject to NERA.

A-3228-21 6 Defense counsel also asked the judge to find the following mitigating

factors: mitigating factor three, N.J.S.A. 2C:44-1(b)(3), defendant acted under

strong provocation; mitigating factor four, N.J.S.A. 2C:44-1(b)(4), substantial

grounds tending to excuse or justify defendant's conduct; mitigating factor six,

N.J.S.A. 2C:44-1(b)(6), defendant will compensate the victim or will participate

in a program of community service; mitigating factor seven, N.J.S.A.

2C:44-1(b)(7), defendant has no history of delinquency or criminal activity or

has led a law-abiding life for a substantial period of time; mitigating factor eight,

N.J.S.A. 2C:44-1(b)(8), defendant's conduct was the result of circumstances

unlikely to recur; mitigating factor nine, N.J.S.A. 2C:44-1(b)(9), defendant's

character and attitude indicate he is unlikely to commit another offense; and

mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), defendant's willingness to

cooperate with law enforcement authorities.

The State asked the judge to impose defendant's sentence in accordance

with the plea agreement. Regarding the mitigating factors, the State agreed

mitigating factor twelve applied. Regarding the aggravating factors, the State

requested the following: aggravating factor one, N.J.S.A. 2C:44-1(a)(1), the

nature and circumstances of the offense and the role of the actor in committing

the offense; aggravating factor two, N.J.S.A. 2C:44-1(a)(2), the gravity and

A-3228-21 7 seriousness of harm inflicted, including the victim's vulnerability or inability to

resist; aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk defendant will

commit another offense; and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9),

the need for deterrence.

As part of the sentencing hearing, the judge considered the presentence

report, as well as counsels' arguments and written submissions. After reviewing

the matter, the judge applied mitigating factor nine based upon defendant's

numerous letters of support but afforded little weight to this factor based on his

findings in applying the aggravating factors. The judge also applied mitigating

factor twelve based on defendant's "level of cooperation." The judge rejected

the other mitigating factors requested by defendant and explained his reasons

for declining to apply those factors.

The judge then considered the aggravating factors. As requested by the

State, the judge applied aggravating factors one, two, three, and nine.

In applying aggravating factors one and two, the judge noted Sweeney

"enlisted" defendant to kill Julius and defendant fired a handgun "at point blank

range" into Julius's car knowing "there [were two people] sitting in that vehicle."

Moreover, the judge found defendant not only "allow[ed] the body of [] Julius

to be buried in his backyard, [but] he obliged defendant Sweeney by digging the

A-3228-21 8 hole himself" and "[p]lacing [] Julius['s] lifeless body into it and covering it

over." The judge found the circumstances were "heinous in the extreme." The

judge applied aggravating factor two "because there [was] no question that both

of these innocent victims were seriously hurt." The judge further explained

defendant "surely knew or should have known that, both of [the victims] were

vulnerable, particularly vulnerable, sitting helplessly in a vehicle. They were

not capable of exercising normal physical or mental power of resistance at that

point."

In applying aggravating factor three, the judge explained that after

defendant shot Julius and her daughter in November 2015, a mere four months

later, defendant "committed wholly new acts of criminal depravity, by burying

[]Julius in his backyard, and thereby hiding evidence of Sweeney's murder on

his property." Based on "[t]he sequence of events alone," the judge applied

aggravating factor three. Additionally, the judge stated defendant's "criminal

history further underscore[d] the risk of future offenses."

The judge applied aggravating factor nine for the reasons previously

expressed in support of the other aggravating factors.

Based upon his findings applying the aggravating and mitigating factors,

the judge sentenced defendant in accordance with the plea agreement. He

A-3228-21 9 sentenced defendant as follows: a sixteen-year term, subject to NERA, on

counts one, two, and three in the murder case; a ten-year term with five years of

parole ineligibility on count five in the murder case; a concurrent ten-year term

on count eight in the murder case; and a concurrent three-year term on count one

in the drug case.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING SUPPRESSION OF [DEFENDANT'S] STATEMENT BECAUSE [DEFENDANT'S] WAIVER OF THE PRIVILEGE OF SELF-INCRIMINATION WAS NOT KNOWING AND VOLUNTARY GIVEN HIS CONFUSION OVER HIS TRUE STATUS EXACERBATED BY THE EXISTENCE OF THE TRAFFIC WARRANT AND CDS CASE, AND THE POLICE'S COERCIVE INTERROGATION TACTICS.

POINT II

[DEFENDANT] IS ENTITLED TO RESENTENCING GIVEN THAT THE COURT IGNORED COMPETENT AND CREDIBLE EVIDENCE THAT HE ACTED UNDER DURESS, IMPROPERLY DOUBLE-COUNTED THE OFFENSES IN FINDING THE AGGRAVATING FACTORS, AND OTHERWISE FAILED TO GIVE ANY OF THE FACTORS THE APPROPRIATE WEIGHT TO ARRIVE AT AN EXCESSIVE 16-YEAR TERM.

A-3228-21 10 I.

Defendant contends he did not waive his appeal argument in Point I by

entering into the plea agreement. He argues the judge never asked if he

understood the waiver of the right to preserve the filing of an appeal from the

denial of his motion to suppress his statement to the police. Having reviewed

the record, we are satisfied defendant waived his right to appeal this issue.

"Generally, a defendant who pleads guilty is prohibited from raising, on

appeal, the contention that the State violated his constitutional rights prior to the

plea." State v. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149

N.J. 310, 316 (1997)).

Rule 3:9-3(f) addresses "conditional pleas" and provides:

With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant shall be afforded the opportunity to withdraw his or her plea. Nothing in this rule shall be construed as limiting the right of appeal provided for in [Rule] 3:5-7(d).[3]

3 Under Rule 3:5-7(d), a defendant who enters into a guilty plea retains the automatic right to appeal from the denial of any motions to suppress physical evidence.

A-3228-21 11 The automatic right to appeal under Rule 3:5-7(d) is limited to search and

seizure claims and excludes claims alleging a violation of the right against self-

incrimination. See Knight, 183 N.J. at 471. A defendant's entering a plea

without the conditional reservation of the right to appellate review of issues

other than the validity of a search and seizure and denial of admission to a

pretrial intervention program. Ibid. Exceptions to the limitations under Rule

3:9-3(f) require a defendant to demonstrate compelling circumstances. State v.

Benjamin, 442 N.J. Super. 258, 263-64 (App. Div. 2015), aff'd on other grounds,

228 N.J. 358 (2017).

Here, in pleading guilty, defendant failed to preserve the right to appeal

from the denial of his motion to suppress his statement to the police. Defendant

unequivocally affirmed his understanding that by pleading guilty he waived his

right to appeal the denial of all pretrial motions with the exception of a motion

under Rule 3:5-7(d), related suppression of physical evidence, and Rule 3:28,

the denial of entry into a pretrial intervention program. Therefore, defendant is

precluded from challenging the denial of his motion to suppress his statement to

the police.

Moreover, the record is devoid of any evidence reflecting defendant's

alleged confusion as to the nature of his plea or any compelling circumstances

A-3228-21 12 warranting an exception to Rule 3:9-3(f). To the contrary, the record reflects

defendant, with the assistance of counsel, carefully reviewed the plea form and

cooperation agreement such that defendant understood the consequences of his

plea, including the waiver of his right to challenge the denial of his motion to

suppress his statement to the police.

If defendant sought to preserve his right to appeal the denial of his motion

to suppress the statement to the police, defendant knew that right could be

included in the plea agreement. Indeed, defendant preserved the right to argue

for a lesser sentence as part of his plea agreement. Thus, on this record, we

reject defendant's argument that he preserved the right to appeal from the denial

of his motion to suppress his statement to the police.

II.

We next consider defendant's arguments seeking a remand for

resentencing. Defendant asserts the judge impermissibly double-counted certain

components in applying the aggravating factors. He further contends the judge

failed to properly weigh the aggravating and mitigating factors. Additionally,

defendant claims the sentence imposed was excessive.

We review a sentencing court's imposition of a sentence for abuse of

discretion. State v. Miller, 237 N.J. 15, 28 (2019). "Appellate review of a

A-3228-21 13 criminal sentence is limited; a reviewing court decides whether there is a 'clear

showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014)

(quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).

However, our deferential standard of review applies "only if the trial judge

follows the [Criminal] Code and the basic precepts that channel sentencing

discretion." State v. Trinidad, 241 N.J. 425, 453 (2020) (quoting State v. Case,

220 N.J. 49, 65 (2014)). Where the sentencing judge followed the Criminal

Code "and the basic precepts that channel sentencing discretion," we will affirm

provided the sentence does not "shock the judicial conscience." Case, 220 N.J.

at 65. "On the other hand, if the trial court fails to identify relevant aggravating

and mitigating factors, or merely enumerates them, or foregoes a qualitative

analysis, or provides little 'insight into the sentencing decision,' then the

deferential standard will not apply." Ibid.; see State v. Kruse, 105 N.J. 354, 363

(1987).

Regarding the balancing of aggravating and mitigating factors, it is

insufficient to merely count "whether one set of factors outnumbers the other."

Case, 220 N.J. at 65. "Rather, the court must qualitatively assess the relevant

aggravating and mitigating factors, assigning each factor its appropriate

weight." Ibid.

A-3228-21 14 Here, at the sentencing hearing, the judge omitted the assignment of

weight to each aggravating and mitigating factor. Nor did the judge state on the

record at the sentencing hearing that the aggravating factors outweighed the

mitigating factors. Absent the judge assigning weight to each aggravating and

mitigating factor, we are constrained to remand for resentencing.

A defendant must be sentenced "anew" where resentencing is ordered

unless the remand is for correction of a technical error, or the remand order is

limited in scope. State v. Robinson, 217 N.J. 594, 610-11 (2014); State v.

Randolph, 210 N.J. 330, 350-51 (2012). Such a resentencing would entail "a

new analysis of the aggravating and mitigating factors" applicable to defendant

"as he appears on the day of resentencing." Randolph, 210 N.J. at 354.

On remand, counsel may present arguments regarding the applicable

aggravating and mitigating factors. The judge should provide a detailed

explanation of the sentencing findings, assigning weight to each applicable

aggravating and mitigating factor and then balancing the factors.

Affirmed as to the conviction. The matter is remanded for resentencing

consistent with this opinion. We do not retain jurisdiction.

A-3228-21 15