STATE OF NEW JERSEY VS. ANDREW M. BRIGHT- BAILEY (19-09-2196, CAMDEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 3, 2021
• Docket: A-2359-19
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2359-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW M. BRIGHT-BAILEY, a/k/a ANDREW BRIGHT and ANDREW BAILEY,

Defendant-Appellant. _____________________________

Submitted April 12, 2021 – Decided May 3, 2021

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 19-09-2196.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Catlin A. Davis, Deputy Attorney General, of counsel and on the brief).

PER CURIAM After pleading guilty, defendant appeals from his conviction for second-

degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1).1 He primarily

challenges an order denying his motion to suppress his statements to police. The

judge determined that defendant knowingly, intelligently, and voluntarily

waived his Miranda2 rights based on the totality of the circumstances, including

his age, prior criminal history, conduct and demeanor during the interrogation.

We affirm.

Defendant and his girlfriend co-defendant attempted to rob a man in

Cherry Hill Township by threatening him with a knife. The next day,

Philadelphia police pulled over defendant in a vehicle, which they later

discovered was stolen. Defendant fled on foot, but police eventually captured

him. Cherry Hill Detectives Sorrentino, Daniello, and Weist traveled to

1 A Camden County Grand Jury returned Indictment Number 19-09-02196, charging defendant with eight counts: first-degree carjacking, N.J.S.A. 2C:15- 2(a)(2); second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2; second- degree conspiracy to commit robbery, N.J.S.A. 2C:15-1(a)(2); first-degree armed robbery, N.J.S.A. 2C:15-1(a)(2); third-degree theft of an automobile, N.J.S.A. 2C:20-3(a); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth- degree possession of a weapon, N.J.S.A. 2C:39-5(d). 2 Miranda v. Arizona, 384 U.S. 463 (1966).

A-2359-19 2 Philadelphia later that day to interview defendant but did so after Philadelphia

police spoke to him.

A Philadelphia detective spoke to defendant first, advised him of his

rights, and asked him to read a card used by Philadelphia Police Officers

(Philadelphia Card) which set forth his rights. The front of the Philadelphia

Card states that the detectives "have a duty to explain to [defendant] and to warn

[defendant] that [he] ha[s] the following legal rights," including:

A. You have the right to remain silent and do not have to say anything at all.

B. Anything you say can and will be used against you in court.

C. You have a right to talk to a lawyer of your choice before we ask you any questions, and also to have a lawyer here with you while we ask questions.

D. If you cannot afford to hire a lawyer, and you want one, we will see that you have one provided to you free of charge before we ask you any questions.

E. If you are willing to give us a statement, you have a right to stop at any time you wish.

On the back of the card, it lists "questions to be answered by accused," including:

1. Do you understand that you have the right to keep quiet and do not have to say anything at all?

2. Do you understand that anything you say can and will be used against you?

A-2359-19 3 3. Do you want to remain silent?

4. Do you understand that you have a right to talk with a lawyer before we ask you any questions?

5. Do you understand that if you cannot afford to hire a lawyer, and you want one, we will not ask you any questions until a lawyer is appointed for you free of charge?

6. Do you want either to talk to a lawyer at this time, or to have a lawyer with you while we ask you questions?

7. Are you willing to answer questions of your own free will, without force or fear, and without any threats or promises having been made to you?

Defendant read both sides of the Philadelphia Card and signed the back of the

form.3 The Philadelphia detective confirmed that defendant was able to read

and understand the card and reiterated that the detectives were going to discuss

the carjacking charge with him.

Shortly after, the three Cherry Hill detectives entered the room. They

interrogated defendant for "around [forty-five] minutes" while he was

handcuffed and not free to leave. Detective Daniello began the interview by

advising defendant of his Miranda rights. He read the Cherry Hill Notification

3 The State noted that "a copy of the front of defendant's [Philadelphia card] is unavailable," but that police provided both he and his co-defendant the same card, and the judge reviewed both sides of the card during the hearing. A-2359-19 4 of Rights form (Cherry Hill Form) to defendant. The Camden County Police

Department prepared a transcript of the questioning:

[DET. DANIELLO]: I have to advise you. You have the right to remain silent. . . . [Y]ou have the right to have legal coun[sel] with you before you say or do anything. Anything that you[] do or say can be held against you, if you don't have proper funds to hire an attorney one will be appointed on your behalf, and you have the continuing opportunity to exercise those rights at any time. Do you understand that?

[DEFENDANT]: Yes sir.

[DET. DANIELLO]: Okay. Um, are you willing to speak with us right now?

[DEFENDANT]: Yes sir. Of course.

[DET. DANIELLO]: Without having an attorney? Okay. Do me a favor. Left[-]handed?

When Detective Daniello asked defendant if he would like to speak with the

detectives, defendant said "[y]es sir. Of course" before Detective Daniello could

finish his question "without having an attorney?" After Detective Daniello

finished his question, defendant did not say anything before the detective moved

on. Defendant did not say he wished to have an attorney present. Detective

Daniello marked the Cherry Hill Form according to defendant's responses,

checking "yes" to the questions "[d]o you understand your rights, as I have

A-2359-19 5 explained them?" and "[a]re you willing to talk with officers without consulting

a lawyer, or having a lawyer present with you?" He then presented the Cherry

Hill Form to defendant, who acknowledged and signed it. Defendant made no

further attempts to invoke his rights during the interrogation. Defendant then

admitted to the detectives that he and his girlfriend conspired to rob a man in

Cherry Hill by threatening him with a knife.

Defendant filed his motion to suppress his statement. The judge conducted

a hearing and took testimony from Detective Daniello. After denying the

motion, the judge summarized his findings of fact on the record:

I think that the warnings were sufficient under our case law and our Constitution. I think it's clear that the defendant's testimony or statement . . . was relaxed, he was comfortable. His tone of voice . . . was consistent with his demeanor. There was no undue force, no pressure. . . . This was a smart defendant who clearly understands what was happening, clearly understood the questions, and I do find that his rights were sufficient that were read to him and that he has voluntarily and knowingly waived those rights. As such, I will not suppress his statement.

Defendant then pleaded guilty to second-degree conspiracy to commit

robbery and preserved his right to appeal the denial of his motion to suppress

his statement. Defendant received a five-year prison term subject to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

A-2359-19 6 On appeal, defendant argues:

THE [TRIAL JUDGE] ERRED BY HOLDING THAT THE [DEFENDANT'S] RECORDED STATEMENT WAS ADMISSIBLE. U.S. CONST., AMENDS. V, XIV[.]

In reviewing a trial judge's determination regarding whether to admit or

suppress a defendant's statement, we defer to the judge's factual findings so long

as they "are supported by sufficient evidence in the record." State v. Hubbard,

222 N.J. 249, 262 (2015); see State v. W.B., 205 N.J. 588, 603 n.4 (2011) (noting

that "[a]s the finding of compliance with Miranda and voluntariness turn[s] on

factual and credibility determinations, we need only find sufficient credible

evidence in the record to sustain the trial judge's findings and conclusions").

This is because the trial judge is "substantially influenced by [an] opportunity

to hear and see the witnesses and to have the 'feel' of the case, which a reviewing

court cannot enjoy." Hubbard, 222 N.J. at 262 (alteration in original) (quoting

State v. Johnson, 42 N.J. 146, 161 (1964)). We also defer to a trial judge's

findings based on video recording or documentary evidence that is available for

review. State v. Tillery, 238 N.J. 293, 314 (2019). The trial judge's factual

findings may only be disregarded if they "are clearly mistaken." Hubbard, 222

N.J. at 262. However, we need not defer to the judge's legal conclusions that

stem from those factual findings. Id. at 263.

A-2359-19 7 The Fifth Amendment of the United States Constitution and New Jersey

state law protect the right against self-incrimination. Miranda, 384 U.S. at 479;

State v. S.S., 229 N.J. 360, 380 (2017). "A confession or incriminating

statement obtained during a custodial interrogation may not be admitted in

evidence unless a defendant has been advised of his or her constitutional rights."

Hubbard, 222 N.J. at 265. A defendant may waive those rights, but the waiver

must be "voluntary, knowing and intelligent" to be effective, and a defendant

may choose to waive some or all of those rights. Ibid. (quoting State v. Hreha,

217 N.J. 368, 382 (2014)). "To eliminate questions about a suspect's

understanding, the entire Miranda form should be read aloud to a suspect being

interrogated, or the suspect should be asked to read the entire form aloud." State

v. A.M., 237 N.J. 348, 400 (2019).

"[A] suspect need not be articulate, clear, or explicit in requesting counsel;

any indication of a desire for counsel, however ambiguous, will trigger

entitlement to counsel." State v. Alston, 204 N.J. 614, 622 (2011) (quoting State

v. Reed, 133 N.J. 237, 253 (1993)). An equivocal invocation of the right to an

attorney must be interpreted in the light most favorable to the defendant, State

v. Wright, 97 N.J. 113, 119 (1984), and "a statement which arguably amounts to

an asserting of [a defendant's] Miranda rights" requires the interrogator to

A-2359-19 8 "immediately cease and . . . inquire of the [defendant] as to the correct

interpretation of the statement." State v. Fussell, 174, N.J. Super. 14, 21 (App.

Div. 1980) (citation omitted). New Jersey's heightened standard of proof

requires that "the State must 'prove beyond a reasonable doubt that the

[defendant]'s waiver was knowing, intelligent, and voluntary in light of all the

circumstances.'" Tillery, 238 N.J. at 316 (quoting State v. Presha, 163 N.J. 304,

313 (2000)).

A judge must consider "the totality of the circumstances surrounding the

custodial interrogation" to determine whether the defendant's waiver is

sufficient. A.M., 237 N.J. at 398. Factors to consider include "the [defendant's]

age, education and intelligence, advice as to constitutional rights, length of

detention, whether the questioning was repeated and prolonged in nature and

whether physical punishment or mental exhaustion was involved." Ibid.

(quoting State v. Miller, 76 N.J. 392, 402 (1978)). Additionally, the judge may

consider defendant's "prior experience with the police," State v. Knight, 183 N.J.

449, 463 (citing Presha, 163 N.J. at 313), and the "period of time between

'administration of the [Miranda] warnings and the volunteered statement," ibid.

(alteration in original) (quoting State v. Timmendequas, 151 N.J. 515, 614

(1999)).

A-2359-19 9 Defendant did not invoke his Fifth Amendment right to counsel by signing

the Philadelphia Card, and the detectives did not need to clarify what defendant

intended when he signed the Philadelphia Card. The Philadelphia Card is

designed to guide officers and detectives in informing suspects of their Miranda

rights, and includes a question that asks "[d]o you want either to talk to a lawyer

at this time, or to have a lawyer with you while we ask you questions?" There

is no location on the Philadelphia Card for a suspect to sign to either invoke or

waive his Miranda rights. Cf. State v. Hartley, 103 N.J. 252, 258 (1986)

(examining a "Waiver of Rights" form and noting that because "the only place

provided for one to sign the form came after the 'waiver' section," the suspect's

signature's purpose "was not to acknowledge receipt of one's rights but rather to

indicate a waiver of those rights"). The fact that defendant signed the bottom of

the Philadelphia Card only confirms that he was informed of those rights and

not that he invoked any of those rights.

Our Court has explained that "[t]o eliminate questions about a suspect's

understanding, the entire Miranda form should be read aloud to a suspect being

interrogated, or the suspect should be asked to read the entire form," and to the

extent that is not done, "the suspect should be asked about his or her literacy and

educational background." A.M., 237 N.J. at 400. After defendant read both

A-2359-19 10 sides of the Philadelphia Card and signed one side, the Philadelphia detective

returned to the interrogation room and confirmed that defendant read the card,

could read and understand English, and understood his rights. And the Cherry

Hill detectives read defendant the Cherry Hill Form before obtaining a signed

waiver of his right to have counsel present during questioning.

The State established that defendant waived his Miranda rights. The

Philadelphia detective provided defendant with the Philadelphia Card, allowed

defendant time to read both the front and back of the card, and confirmed that

defendant understood the card and his rights. And shortly after, Cherry Hill

detectives entered the interrogation room, re-Mirandized defendant and obtained

a waiver of his right to counsel. On the Cherry Hill Form, defendant answered

"yes" to the question "[a]re you willing to talk with officers without consulting

a lawyer, or having a lawyer present with you?"

The judge determined that "defendant knew what his rights were,

voluntarily waived his rights, and he gave a statement. He never invoked his

right to counsel. . . . The warnings were sufficient in this matter." The judge

observed that "[d]efendant was [twenty-two-]years old," has a prior criminal

history, and "he's mature enough to fully appreciate the significance of his

waiver." Defendant also "did not appear to have trouble reading, writing, or

A-2359-19 11 understanding the English language," which was confirmed by the detectives.

The judge noted that Detective Daniello asked defendant "[a]re you willing to

speak with us right now," to which defendant responded yes, and then Detective

Daniello clarified his question by adding "[w]ithout having an attorney," to

which the judge states defendant responded "[y]es, sir." The judge also found

that the forms provided to the defendant and the questioning was not

unconstitutionally vague or ambiguous because it "combined the knowledge of

rights with the waiver of rights," and there was "no indication in this matter that

the defendant was actually confused by the combination." Defendant was

"relaxed" and "comfortable" while speaking to the detectives, "[t]here was no

undue force, no pressure," defendant "clearly unders[tood] what was

happening," and that "his rights were sufficient and were read to him and that

he voluntarily and knowingly waived those rights." Defendant did not suggest

that he did not understand his rights or that he wanted counsel present prior to

speaking with the detectives. To the contrary, defendant assented on the Cherry

Hill Form to speaking with the Cherry Hill Detectives without an attorney

present. The judge's findings are supported by sufficient credible evidence in

the record and are not clearly mistaken.

A-2359-19 12 Affirmed.

A-2359-19 13