NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1083-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER DIANTONIO,
Defendant-Appellant. ___________________________
Submitted January 22, 2024 – Decided March 25, 2024
Before Judges Gilson and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 21-07-0789.
Jacobs & Barbone, PA, attorneys for appellant (Louis Michael Barbone, on the brief).
William E. Reynolds, Atlantic County Prosecutor, attorney for respondent (Linda Anne Shashoua, Assistant Prosecutor, of counsel and on the brief; Courtney Marie Cittadini, Chief Assistant Prosecutor, on the brief).
PER CURIAM Following the denial of his motion to suppress statements he had given to
law enforcement personnel, defendant pled guilty to second-degree unlawful
possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1). He was
sentenced to five years in prison with three and a half years of parole
ineligibility. Defendant now appeals from the order denying his motion to
suppress his statements.
Police officers questioned defendant after he came to the hospital with a
gunshot wound to his lower leg. Three officers questioned defendant in three
segments over the course of approximately seventy minutes. At no time was
defendant given his Miranda1 rights. The motion judge held that the questioning
was lawful because during the first two segments, defendant was not a suspect ,
and in the third segment, the questioning was justified under the public safety
exception because the police were trying to locate the gun. The testimony at the
evidentiary hearing does not support that finding. Instead, the officers'
testimonies establish that during the third segment of the interrogation, the
officers believed defendant shot himself, and their questions focused on how he
shot himself. Accordingly, because the officers did not give defendant his
Miranda rights at the time that he became a suspect, the last part of the
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-1083-22 2 interrogation violated defendant's Fifth Amendment rights, and that portion of
defendant's interrogation should have been suppressed. We, therefore, reverse
in part the order denying the motion to suppress. We also reverse defendant's
conviction, vacate his plea and sentence, and remand for further proceedings.
I.
We discern the facts from the record, including the three-day evidentiary
hearing on defendant's motion to suppress his statements. Three Atlantic City
police officers testified at the hearing: Detective Matthew Cocuzza, Detective
Armani Rex, and Sergeant Innocenzo Visceglia. The State also introduced into
evidence and played the audio recordings of the three segments of the officers'
questioning of defendant. In addition, the State submitted transcripts of the
audio recordings. Defendant did not testify, nor did he call any witnesses. His
counsel did submit several documents into evidence, including the affidavit of
probable cause related to the charges filed against defendant.
On August 12, 2020, defendant arrived at the emergency room at the
Atlantic City Regional Medical Center with a gunshot wound to his lower right
leg. Apparently, the hospital notified the police, and several officers responded
to investigate. All the questioning of defendant took place while he was in the
emergency room.
A-1083-22 3 Cocuzza questioned defendant first, and the first segment of questioning
lasted approximately twenty minutes. Cocuzza testified that he considered
defendant to be a victim of a shooting and, therefore, did not give defendant
Miranda warnings. Cocuzza asked defendant to tell him what happened. In
response, defendant told a detailed story about how he was outside on a street
smoking when he saw two men in a BMW "cruising slow." Defendant started
to walk away, then heard a shot, and he ducked down behind a parked car.
Thereafter, defendant began to run, and the men in the BMW fired several shots.
One of the shots struck defendant in the leg.
Cocuzza then questioned defendant to try to determine where the shooting
occurred, but defendant's descriptions of the location did not make sense to
Cocuzza, and defendant's descriptions were not consistent. At the hearing,
Cocuzza explained that he was questioning defendant to try to determine the
location of the shooting so that police could investigate the scene.
After the first segment of questioning ended, Cocuzza spoke with Marcus
Gunn, who told him that he had driven defendant to the hospital after defendant
had arrived at an inn where Gunn was staying. Gunn also explained that when
defendant arrived, he had already been shot. At some point during or shortly
after the first segment of questioning, Cocuzza also learned that hospital
A-1083-22 4 personnel had found marijuana and heroin on defendant's body and in his
clothing.
Approximately fifteen minutes after the first interview ended, defendant
was questioned again. By that time, Rex had arrived at the hospital, and he and
Cocuzza questioned defendant for approximately twenty-five minutes. Again,
the officers did not give defendant Miranda warnings. At the hearing, Rex
testified that he considered defendant a victim.
Rex led the questioning in the second segment and focused his questioning
on where defendant had been shot. Defendant repeated his story that two men
driving a BMW had shot at him. He described the men as "black" and
"Dominican or . . . Puerto Rican." Defendant also stated that the driver was the
person who fired the shots. Rex tried to have defendant pinpoint the location of
the shooting, but defendant's answers were not specific.
By the end of the second segment of questioning, Rex believed defendant
was lying. On cross-examination at the hearing, Rex testified:
Q. Whether you focused on him as a victim or not, you did know that lying to a police officer was a crime. You knew that, didn't you?
A. Yes.
A-1083-22 5 Q. You knew that reporting a false event, a false public emergency, was a crime, you knew that, didn't you?
Q. You knew that holding a gun, possessing a gun and shooting yourself with it is a crime, you knew that, didn't you?
Q. You knew all that before you started the third segment of the statement, right?
Rex also testified that by the end of the second segment of questioning,
he believed that defendant had shot himself. In that regard, he testified:
Q. Okay. When you said after the second part of that interview, you believed the wound had been self- inflicted. You said that, do you recall saying that?
Q. How did you make that conclusion?
A. I looked at his wound . . . .
....
Q. Yes. You were able to conclude that it was self- inflicted, which means of course what he had just got done telling you was probably a lie?
A-1083-22 6 A. Yes.
The third segment of questioning was conducted approximately fifteen
minutes after the second segment and lasted approximately twenty-five minutes.
Three officers were present during that third segment: Cocuzza, Rex, and
Visceglia. Visceglia, who was in charge of the Violent Crimes Unit, led the
questioning. Again, defendant was not given Miranda warnings. Visceglia
testified he did not give Miranda warnings because he did not intend to arrest
defendant; rather, he was questioning him about the shooting.
Visceglia started his questioning by asking defendant to tell him what
happened. Defendant initially repeated his story of being shot on a street. When
pressed for the location of the shooting, defendant said he was shot outside, "in
the back of the Quality Inn."
Visceglia's questioning then shifted. He told defendant that he knew about
gunshot wounds. He also told defendant that he knew that he had had drugs on
him when he came to the hospital. Visceglia explained to defendant that he
would probably be charged with possession of the drugs, and "the prosecutor's
office" and "[j]udge" would decide what happened concerning the drug charges.
At the hearing, Visceglia acknowledged that if he had questioned defendant
about the drugs, he knew he had to give defendant Miranda warnings.
A-1083-22 7 Visceglia then told defendant: "I know for a fact that this story you're
telling me is bullshit. . . . Listen, you're leaving stuff out of this story on
purpose." Visceglia thereafter asked defendant who he had been with when he
was shot and whether "you guys were f[***]ing around with a gun?" In
connection with those questions, Visceglia told defendant:
The gun that you guys had in the hotel room, I would love to have it, so a kid doesn't get it, but I am not—I am not going to, you know, charge everyone that you were with tonight because I can't find it, but my thing is . . . is it safe? Is a kid going to grab it?
In response, defendant told Visceglia that the gun was safe. Visceglia then
questioned defendant on whether one of the people he was with shot him. It was
at that point that defendant admitted that he had accidentally shot himself: "I
held the gun and I, f[***]ing, shot myself because I thought it was on safety." 2
In his testimony at the suppression hearing, Visceglia acknowledged that
when he started to question defendant, he did not believe the story defendant
had told the other detectives and he suspected that defendant had been lying.
Visceglia also explained that he believed defendant's gunshot wound was self-
inflicted or defendant had been shot by someone standing close to him. Further,
2 The transcript of that same statement reads: "[Inaudible] [I]t's my weed. [Inaudible] I f[***]ing shot myself cuz I thought it was on safety." A-1083-22 8 Visceglia testified that he asked defendant about shooting himself "to see his
reaction."
Q. What was your purpose in accusing [defendant] of shooting himself?
A. Just to see his reaction.
After the detectives and sergeant finished questioning defendant, he was
charged that same day with second-degree unlawful possession of a handgun
and drug-related offenses. Thereafter, defendant was indicted for second-degree
unlawful possession of a handgun and third-degree possession of heroin,
N.J.S.A. 2C:35-10(a)(1).
On June 2, 2022, after hearing arguments from counsel, the judge denied
defendant's motion to suppress his statements and ruled that all parts of his
statements were admissible. The judge explained her ruling in an oral opinion
placed on the record. Thereafter, the judge memorialized her ruling in an order
issued on June 13, 2022.
The judge found that the three officers' testimonies were credible. She
found that defendant was always in custody during the questioning because he
was wounded and could not move from his hospital bed. The judge found that
during the first and second segments of questioning, the detectives were asking
defendant questions and viewed him as a victim. Accordingly, the judge
A-1083-22 9 reasoned that defendant was not a suspect during these segments, so the officers
did not need to give defendant Miranda warnings.
In analyzing the third segment of questioning, the judge found that the
detectives and sergeant believed defendant was lying and that his wound was
either self-inflicted or the shot was fired by someone standing close to
defendant. The judge also found that Sergeant Visceglia took "a heavy[-]handed
approach" in questioning defendant. The judge reasoned that Visceglia was
"clearly trying to find out, not just what happened, but who shot . . . defendant
and, you know, was it somebody he knew, was it himself, were they messing
around with the gun." The judge recognized that the questioning continued
without a Miranda warning, even though defendant continued to claim that he
was shot by men in a BMW. The judge then found that defendant "confess[ed]"
to shooting himself after more questioning from Visceglia. In that regard, the
judge reasoned, "[defendant] goes on and on. But he—[Visceglia] then says I
think you shot yourself and he elicits this confession."
Applying those factual findings to the law, the judge held that the third
segment of questioning was lawful under the public safety exception. In that
regard, the judge reasoned that Visceglia was trying to find out the location of
the gun. Accordingly, the judge explained:
A-1083-22 10 I think that's why the officers continued to question him is because they wanted to make sure that gun wasn't laying around in a public place. So I'm not suppressing the statements made by [defendant] when he was questioned by the [Atlantic City police officers] on August 12th, without being given his Miranda [r]ights first.
As noted, following the denial of his motion to suppress his statements,
defendant pled guilty to second-degree unlawful possession of a handgun
without a permit. The drug charges were dismissed, and defendant was
sentenced to five years in prison with three and a half years of parole
ineligibility. Defendant now appeals from the order denying his motion to
II.
On appeal, defendant argues his Fifth Amendment right against self-
incrimination was violated because the detectives and sergeant who questioned
him for over an hour never gave him Miranda warnings. Defendant articulates
his arguments as follows:
Point I: The Trial Court Erred As A Matter Of Law In Refusing To Suppress Defendant's Oral Statements Over The Course Of 72 Minutes While The Defendant Was In Custody And Interrogated By Police.
Point II: The Public Safety Exception Was Wholly Inapplicable To These Facts, And The Trial Court
A-1083-22 11 Misunderstood And Misapplied The Essential Elements Required To Trigger The Exception.
When reviewing a decision on a motion to suppress, appellate courts defer
to a trial court's factual findings and will uphold those findings when they are
supported by sufficient, credible evidence in the record. State v. Tiwana, 256
N.J. 33, 40 (2023) (citing State v. A.M., 237 N.J. 384, 395 (2019)). In contrast,
appellate courts do not defer to a trial court's legal conclusions, which are
reviewed de novo. Ibid. (citing State v. Rockford, 213 N.J. 424, 440 (2013)).
In that regard, a trial court's legal conclusions "and the consequences that flow
from established facts" are reviewed de novo on appeal. State v. Bullock, 253
N.J. 512, 532 (2023) (quoting State v. Hubbard, 222 N.J. 249, 263 (2015)).
A. The Fifth Amendment.
The Fifth Amendment of the United States Constitution guarantees all
persons the privilege against self-incrimination. U.S. Const. amend. V. That
privilege applies to the states through the Fourteenth Amendment. U.S. Const.
amend. XIV, § 1; Griffin v. California, 380 U.S. 609, 615 (1965). In addition,
in New Jersey, there is a common-law right against self-incrimination, which
has been codified in a statute and a rule of evidence. State v. Reed, 133 N.J.
237, 250 (1993); N.J.S.A. 2A:84A-19; N.J.R.E. 503. Accordingly, it has long
been established that when a person "is taken into custody or otherwise deprived
A-1083-22 12 of his [or her] freedom," that person is entitled to certain warnings before he or
she can be questioned. Miranda, 384 U.S. at 479; see also Tiwana, 256 N.J. at
41; Hubbard, 222 N.J. at 265.
"Custodial interrogation is defined as 'questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his [or her] freedom of action in any significant way.'" Tiwana, 256
N.J. at 41 (quoting Miranda, 384 U.S. at 444). "In resolving whether police
conduct constitutes interrogation or its functional equivalent, [courts] consider
whether, under the circumstances, a police officer's questioning or the functional
equivalent was 'particularly "evocative"' or 'reasonably likely to elicit an
incriminating response.'" Id. at 42 (quoting Rhode Island v. Innis, 446 U.S. 291,
303 (1980)). Courts examine whether the police asked "targeted questions,"
which demonstrate an attempt to cause the suspect to incriminate himself or
herself. See id. at 43-44; Hubbard, 222 N.J. at 271-72; see also State in the Int.
of A.A., 240 N.J. 341, 357-58 (2020). If Miranda warnings were required, the
failure to administer those warnings "'creates a presumption of compulsion,' and
any unwarned statements must be suppressed—even when they 'are otherwise
voluntary within the meaning of the Fifth Amendment.'" Tiwana, 256 N.J. at 41
(quoting Oregon v. Elstad, 470 U.S. 298, 307 (1985)).
A-1083-22 13 B. The Public Safety Exception.
Even when Miranda warnings should be provided, there is a public safety
exception. See New York v. Quarles, 467 U.S. 649, 655-56 (1984); State v.
O'Neal, 190 N.J. 601, 618 (2007). The public safety exception applies in
"limited circumstances" and allows law enforcement personnel not to give
warnings when there is an "objectively reasonable need to protect the police or
the public from any immediate danger associated with [a] weapon." O'Neal, 190
N.J. at 618 (quoting Quarles, 467 U.S. at 659 n.8). To establish that the
exception applies, the "State must generally demonstrate '(1) there was an
objectively reasonable need to protect the police or the public; (2) from an
immediate danger; (3) associated with a weapon; and that (4) the questions asked
were related to that danger and reasonably necessary to secure public safety.'"
State v. Stephenson, 350 N.J. Super. 517, 525 (App. Div. 2002) (quoting State
v. Prim, 730 N.E.2d 455, 463 (Ohio Ct. App. 1999)). "Application of the public
safety exception generally requires a concern for the protection of the public at
large, or an extended group of individuals, such as children." State v. Melendez,
423 N.J. Super. 1, 24 (App Div. 2011) (citing United States v. Lawrence, 952
F.2d 1034, 1036 (8th Cir. 1992)).
A-1083-22 14 The public safety exception does not nullify a person's Fifth Amendment
rights. Id. at 26. Instead, it allows a narrow exception when police are trying
to locate a gun, but the questioning must be focused on finding the gun and
cannot be designed to elicit self-incriminating statements. See id. at 26-27.
C. Applying the Law to Defendant's Statements.
Before us, the State argues that defendant was never in custody. We reject
that argument for two reasons. First and foremost, the motion judge found that
defendant was in custody because when he was questioned, he was wounded and
lying in a hospital bed in an emergency room where he could not get up and
walk away. Those findings are supported by substantial, credible evidence and
are consistent with the law concerning when a person is in custody. Second, the
State had conceded at the hearing that defendant was in custody. We, therefore,
reject the State's attempt to now change its position on that issue.
The motion judge found that the first two segments of defendant's
statements were admissible because defendant was not subject to interrogation.
Instead, the judge found that Cocuzza and Rex had questioned defendant in an
effort to find out who shot him because they viewed him as a victim. Those
findings are supported by substantial, credible evidence, including the
testimonies of the detectives. Moreover, a review of the questions the detectives
A-1083-22 15 asked demonstrates that they were trying to find out where defendant was shot
so that they could direct other police officers to investigate the scene of the
shooting.
The record, however, does not support the motion judge's finding that the
public safety exception applied to the third segment of questioning. By the
beginning of the third segment of questioning, both Rex and Visceglia admitted
that they knew defendant was lying and believed that either he had shot himself
or someone standing close to him had shot him. Partway into the third segment
of questioning, Visceglia's questioning of defendant clearly became an
interrogation. That shift occurred when Visceglia told defendant: "I know , I
know for a fact, I'm not saying like I'm guessing, I know for a fact that this story
you're telling me is bullshit." An objective review of the questioning reveals
that thereafter, Visceglia was seeking to elicit an admission from defendant that
he shot himself. While Visceglia also mentioned that he wanted to find the gun,
that was not the focus of his questioning and, more importantly, he did not limit
his questioning to determining the location of the gun. Applying the objective
facts of Visceglia's questioning to the law, we hold that at that point in the third
segment of questioning, defendant was entitled to be given Miranda warnings.
Because defendant was not given his Miranda warnings, we suppress the portion
A-1083-22 16 of the interrogation and answers that followed. Specifically, all questions and
answers from page twenty-two of the third segment of the transcript of the audio
recording (that is, Da105 in the record on appeal) onward must be suppressed.
Accordingly, we affirm in part and reverse in part the order denying
defendant's motion to suppress his statements. The first and second segments
of defendant's statements are admissible. The third segment is admissible up to
the point where Visceglia tells defendant that his story is "bullshit." That
statement and all the questions and answers thereafter are suppressed. We,
therefore, reverse defendant's conviction, vacate defendant's plea and sentence,
and remand for further proceedings.
In remanding, we note that there is still substantial evidence the State can
use. In the portion of the statements that is admissible, defendant disclosed that
he had been shot near the Quality Inn. The record reflects that the police used
that information to obtain surveillance video from the Quality Inn. That video
showed defendant going into and coming out of a room while he was limping.
The police also found a shell casing and blood stains in the room at the Quality
Inn. That evidence is not being suppressed.
Affirmed in part, reversed in part, and remanded for further proceedings.
We do not retain jurisdiction.
A-1083-22 17