STATE OF NEW JERSEY VS. KEVIN J. SCUCCIMARRI (14-08-0893, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4606-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN J. SCUCCIMARRI,

Defendant-Appellant.
_______________________________

Argued October 10, 2018 – Decided October 31, 2018

Before Judges Yannotti and Gilson.

On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 14-08-
0893.

Logan M. Terry argued the cause for appellant.

Joie D. Piderit, Assistant Prosecutor, argued the cause
for respondent (Andrew C. Carey, Middlesex County
Prosecutor, attorney; Joie D. Piderit, of counsel and on
the brief).

PER CURIAM
 Defendant Kevin J. Scuccimarri pled guilty to first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1), and he was sentenced to eighteen years

of incarceration, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2. Defendant appeals from the judgment of conviction (JOC) dated May 19,

2016. We affirm.

I.

A Middlesex County grand jury charged defendant with first-degree

knowing and purposeful murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one);

third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (counts two and

three); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count four).

Defendant also was charged under W-2013-694-1217 with criminal mischief,

N.J.S.A. 2C:17-3(b)(2), a disorderly persons offense.

Defendant filed a motion to suppress two recorded statements he provided

to the police on September 3, 2013, with regard to Sherry Richardson, who had

been reported missing. Richardson was defendant's former girlfriend, and they

had four children together. In September 2013, defendant and Richardson were

living apart. Defendant and the children were living with his parents in their

home in Piscataway, and Richardson was living in Middlesex Borough. After

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the police advised defendant of his Miranda rights,1 he gave the police two

statements, one in the morning and one in the afternoon.

The judge filed a written opinion in which he found that after about one

hour and twenty-one minutes of questioning during the morning interview,

defendant had invoked his right to counsel and thereafter the police continued

the interrogation in violation of defendant's right to counsel under the Sixth

Amendment to the United States Constitution. The judge entered an order dated

June 29, 2015, suppressing the portion of the morning interview that continued

after defendant asserted his right to counsel, and the entire afternoon statement.

Defendant also filed a motion to suppress physical evidence, specifically

the evidence regarding the discovery of Richardson's body. Defendant argued

that the court should grant the motion because in the suppressed portion of his

statement, he admitted killing Richardson and led the police to her body. In

response, the State argued that based on other information the police had,

including the portion of defendant's statement that was not suppressed, it was

inevitable the police would find Richardson's body.

On December 15, 2015, the judge conducted an evidentiary hearing on

defendant's suppression motion. At the hearing, the State presented testimony

1
Miranda v. Arizona, 384 U.S. 436 (1966).
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from Detective Dan Kapsch of the Piscataway Police Department. The State also

presented testimony from Captain Jacqueline Molnar and Investigator Brie

Curran of the Middlesex County Prosecutor's Office. Defendant presented no

witnesses.

After hearing the testimony, the judge placed an oral decision on the

record. The judge found that the State had proven by clear and convincing

evidence that even without defendant's suppressed confession, the police would

have inevitably discovered Richardson's body. The judge entered an order dated

December 22, 2015, denying defendant's motion to suppress.

On March 30, 2016, defendant pled guilty to count one, which was

amended to charge first-degree aggravated manslaughter, contrary to N.J.S.A.

2C:11-4(a)(1). The State agreed to recommend that the court sentence defendant

to eighteen years of incarceration, with an eighty-five percent period of parole

ineligibility pursuant to NERA. The State also agreed to dismiss the remaining

charges.

The judge sentenced defendant on May 18, 2016. The judge found

aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will

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

defendant and others from violating the law). The judge found no mitigating

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factors. The judge sentenced defendant in accordance with the plea agreement

to eighteen years in prison, subject to NERA. The judge also ordered defendant

to make restitution in the amount of $5000 and imposed other fees and penalties.

The judge filed the JOC dated May 19, 2016.

This appeal followed. On appeal, defendant argues:

POINT I
IT WAS ERROR FOR THE TRIAL COURT TO
ADMIT THE DISCOVERY OF THE BODY INTO
EVIDENCE WITHOUT A SCINTILLA OF PROOF
THAT THE POLICE HAD A POLICY REGARDING
PROPER, NORMAL OR SPECIFIC
INVESTIGATORY PROCEDURES.

POINT II
THE APPELLATE COURT SHOULD VACATE THE
CONVICTION BECAUSE THE PROSECUTOR
VIOLATED [DEFENDANT'S] RIGHT TO AN
ACCURATE AND TRUTHFUL PRESENTATION TO
THE GRAND JURY.

POINT III
THE VIOLATION OF THE FIFTH AMENDMENT
RIGHT TO FORTHRIGHT GRAND JURY
PRESENTATION [,] . . . THE VIOLATION OF HIS
RIGHT AGAINST SELF-INCRIMINATION[,] AND
THE [MIRANDA] VIOLATION WAS
CUMULATIVE ERROR DENYING [DEFENDANT]
DUE PROCESS OF LAW AND FUNDAMENTAL
FAIRNESS.

POINT IV
THE EIGHTEEN YEAR EIGHT[Y-]FIVE PERCENT
SENTENCE IMPOSED ON DEFENDANT WAS AN

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 ABUSE OF DISCRETION BECAUSE IT WAS
EXCESSIVE.
II.

We turn first to defendant's contention that the judge erred by denying his

motion to suppress evidence regarding the discovery of Richardson's body. He

contends the judge erred by applying the inevitable discovery doctrine.

Generally, the exclusionary rule precludes the admission of evidence

obtained as a result of a violation of a defendant's constitutional rights. State v.

Shannon, 222 N.J. 576, 585 (2015). There are, however, exceptions to this

general rule.

One exception is the "inevitable discovery" doctrine. State v. Sugar

(Sugar II), 100 N.J. 214, 236 (1985) (citing Brewer v. Williams, 430 U.S. 387,

406 n.12 (1977)). The doctrine is a "logical extension" of the "independent

source rule [which] allows admission of evidence that has been discovered by

means wholly independent of any constitutional violation." Id. at 237 (citing

Nix v. Williams, 467 U.S. 431, 443 (1984)).

In Sugar II, the Court held that for purposes of the New Jersey

Constitution, evidence that would otherwise be subject to the exclusionary rule

may be admitted if the State establishes by clear and convincing evidence that:

(1) proper, normal, and specific investigatory
procedures would have been pursued in order to

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 complete the investigation of the case; (2) under all of
the surrounding relevant circumstances the pursuit of
those procedures would have inevitably resulted in the
discovery of the evidence; and (3) the discovery of the
evidence through the use of such procedures would
have occurred wholly independently of the discovery of
such evidence by unlawful means.

[Id. at 238-40.]

The Court clarified the test in State v. Sugar (Sugar III), 108 N.J. 151

(1987). The Court stated that, "[t]o establish the inevitability of discovery of

evidence, the State need not demonstrate the exact circumstances of the

evidence's discovery," or "the exclusive path leading to the discovery" of the

evidence. Id. at 158.

Instead, the State may satisfy its burden by demonstrating that "such

discovery would occur in one or in several ways," so long as the State "present[s]

facts sufficient to persuade the court, by a clear and convincing standard, that

the [evidence] would be discovered." Id. at 158-59. Therefore, "[t]he State need

only present facts or elements—proving each such fact or element by a

preponderance of the evidence—that in combination clearly and convincingly

establish the ultimate fact and lead to the conclusion that the evidence would be

inevitably discovered." Id. at 159 (citing State v. Brown, 80 N.J. 587, 592

(1979)).

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 On appeal, defendant argues that the State failed to meet its evidentiary

burden for application of the inevitable discovery doctrine. We disagree.

We note initially that the motion judge's factual findings in a suppression

hearing should be upheld so long as they are "supported by sufficient credible

evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007). Furthermore,

we must give deference to the trial court's factual findings when they are

"substantially influenced" by the court's "opportunity to hear and see the

witnesses and to have the 'feel' of the case, which a reviewing court cannot

enjoy." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

In his decision, the judge noted that on September 3, 2013, the police knew

that Richardson had been reported missing, and they suspected defendant was

involved in her disappearance. In the unsuppressed portion of his morning

statement, defendant admitted he had been with Richardson from midnight until

6:00 a.m., and they were near his residence in Piscataway before he took her to

her home in Middlesex Borough. Kapsch testified that the police knew

defendant and Richardson, and were aware they had a volatile relationship,

which included domestic violence. Kapsch said he suspected foul play in

Richardson's disappearance.

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 The judge found that the search for Richardson would have led to a

thorough search of the woods near defendant's home. The record shows that,

earlier in the morning, defendant's mother had called the police to the residence

because defendant had been burning something outside the home and he was

acting erratically. The police responded to the residence, and in the yard, the

police found a metal barrel with a fire, which they extinguished.

The police recovered burned clothing and boots, which were stained with

mud. Kapsch testified that the police also found "[s]meared dried up mud" on

the hood of defendant's car. Molnar stated that the police would have looked

for the source of the mud and they would have focused their search on the woods

and creek near defendant's home.

The motion judge found the search would have led the police to the patch

of disturbed earth next to the creek where Richardson's body was found. The

judge pointed out that there was a natural entry point into the woods, and the

woods was "the one area in [the] whole neighborhood where you can act in

secret, where you cannot be seen[.]" The judge noted that the police found

Richardson's body near that natural entry point.

Kapsch also testified that the police would have conducted a thorough

search of the entire area, including the wooded area behind defendant's home.

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Kapsch stated that the search would have included Blueberry Court, which was

two blocks from defendant's home. On the ground of a driveway at Blueberry

Court, the police recovered the vehicle registration for defendant's car. The

police also observed drag marks on the grass going toward the stream, and

photographic evidence showed drag marks on the ground near the burial site.

In addition, Curran testified that the grass near the burial site appeared to

be pressed down. The investigators also found a container for contact lenses

and a stick of lip balm on the ground. These items appeared to have been

dropped recently. Curran stated that a small plot of earth in the area initially

stood out as suspicious because it contained uprooted, churned grass and darker

soil. This indicated that the soil on the ground had come from beneath the

surface. Curran testified that, based on these observations, this location would

have been a prime area to focus search efforts.

The judge concluded that there was no doubt the discovery of the body

was inevitable. The judge stated that the search probably would not have taken

long because the area to be searched was relatively small. The judge added that

the police would have walked down the bed of the stream, and it was inevitable

they would have found Richardson's body "in short order."

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 We are convinced there is sufficient credible evidence in the record to

support the judge's findings of fact. The record supports the judge's conclusion

that the State had established by clear and convincing evidence that the police

would have found Richardson's body, even without the information provided in

defendant's suppressed statements.

Defendant argues, however, that the State failed to prove that the police

followed "proper, normal and specific investigatory procedures" as required by

Sugar II. He contends the State did not establish a "best-practice" protocol, a

search pattern or method, or even an ad hoc plan to search for Richardson.

However, as we stated previously, the inevitable discovery doctrine may

be applied if the State establishes a hypothetical series of events that would have

inevitably led to the discovery of the evidence. Sugar III, 108 N.J. at 163-65.

Furthermore, the State does not have to prove that the police would have

employed any one particular investigatory process in its search for the evidence,

or a "best-practice" protocol. Id. at 158-59.

Here, the State presented evidence of "[a] number of possibilities" that

cumulatively established "clear and convincing" proof the police would have

inevitably discovered Richardson's body. See id. at 159. The State's witnesses

testified that they would have essentially followed normal, routine search

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procedures in searching for Richardson. The judge found the State's witnesses

were credible.

Defendant further argues that in finding that the discovery of Richardson's

body was inevitable, the judge erred by relying upon the recovery of defendant's

vehicle registration card on a driveway near the burial site. He contends the

State failed to establish that a hypothetical investigation would have led the

police to the registration card unless they conducted an illegal search of the

property.

In his decision, the judge specifically found that even without the

registration card, the police would have searched the wooded area. In any event,

the record does not support defendant's contention that the police would not have

found defendant's vehicle registration card unless they conducted an illegal

search of private property on Blueberry Court.

Molnar testified that a proper investigation would have included a

thorough "canvassing" of the neighborhood. Thus, the police would have

knocked on the doors of neighbors and searched the area for physical evidence.

In all likelihood, the property owners would have cooperated with the police,

and allowed the officers to walk through the driveway, where the registration

card was found.

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 We therefore conclude the judge did not err by denying defendant's motion

to suppress evidence regarding the discovery of Richardson's body. The judge's

application of the inevitable discovery doctrine was consistent with Sugar II and

Sugar III, and supported by sufficient credible evidence.

III.

Next, defendant argues his conviction should be reversed because the

State allegedly violated his right to an accurate and truthful presentation of

evidence before the grand jury. According to defendant, the assistant prosecutor

told the grand jury that Richardson's sister had called the police and reported her

sister was missing. He contends the assistant prosecutor failed to inform the

grand jury that the police called Richardson's sister while they were interviewing

him.

Defendant argues this alleged misrepresentation was the "first brick" in

the State's attempt to lay a foundation for application of the inevitable discovery

doctrine. He contends the State's grand jury presentation was an attempt to

present a false factual scenario, whereby Richardson's body would have been

discovered even without his illegally-obtained confession.

This argument was not raised in the trial court, and defendant did not

preserve the issue for appeal when he pled guilty. "Generally, a defendant who

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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) (first quoting State v. Crawley, 149 N.J. 310, 316 (1997); then

citing Tollett v. Henderson, 411 U.S. 258, 267 (1973)). There are, however,

exceptions to this general principle.

First, a defendant may appeal from the denial of a motion to suppress

evidence after a guilty plea. Id. at 471 (citing R. 3:5-7(d)). Second, a defendant

may appeal from the denial of admission into pretrial intervention (PTI). Ibid.

(citing R. 3.28(g)). Finally, a defendant may appeal an issue preserved by entry

of a conditional plea. Ibid. (citing R. 3:9-3(f)). The exceptions do not apply

because defendant is challenging what happened before a grand jury. Such a

challenge should have been made in a motion to dismiss the indictment, but no

such motion was filed. Therefore, defendant waived the right to raise the issue

on appeal.

Nevertheless, we are convinced the argument is entirely without merit.

The record does not support defendant's claim that the assistant prosecutor

misrepresented facts concerning when the Piscataway police learned that

Richardson had been reported missing. Moreover, the timing of the report was

not material to the application of the inevitable discovery doctrine. That

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decision turned upon the evidence presented at the suppression hearing, not

statements the assistant prosecutor may have made before the grand jury about

when Richardson was reported missing.

We therefore reject defendant's contention that the State did not present

an accurate and truthful presentation of the facts before the grand jury.

IV.

Defendant also argues that his sentence is excessive and constituted an

abuse of the judge's discretion. Again, we disagree.

We review the imposition of a sentence under an abuse of discretion

standard. State v. Jones, 232 N.J. 308, 318 (2018). In doing so, we must

determine whether: "(1) the sentencing guidelines were violated; (2) the findings

of aggravating and mitigating factors were . . . 'based upon competent credible

evidence in the record;' [and] (3) 'the application of the guidelines to the facts'

of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221,

228 (2014) (third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364–

65 (1984)).

"An appellate court is bound to affirm a sentence, even if it would have

arrived at a different result, as long as the trial court properly identifies and

balances aggravating and mitigating factors that are supported by competent

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credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989)

(first citing State v. Jarbath, 114 N.J. 394, 400-01 (1989); then citing Roth, 95

N.J. at 364-65).

On appeal, defendant argues the judge should have taken certain

mitigating factors into consideration when sentencing him. He contends the

judge should have considered that Richardson was in poor health, which may

have caused her to die more quickly when he strangled her. He also contends

the judge should have considered that he was intoxicated when he strangled

Richardson. Defendant further argues that the judge should have considered

that he stabbed Richardson after she was already dead, as a means to help him

hide the body, not to kill her.

As we noted previously, the judge found aggravating factors three and

nine, and found no mitigating factors. The judge also explained that mitigating

factor one did not apply. N.J.S.A. 2C:44-1(b)(1) (defendant's conduct did not

cause or threaten serious harm). The judge stated that "obviously" the most

serious of harm had occurred and defendant's conduct caused that harm.

The judge found mitigating factor two did not apply. N.J.S.A. 2C:44-

1(b)(2) (defendant did not contemplate conduct would cause or threaten serious

harm). The judge noted that it "takes time to choke the life out of someone" and

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there is always "an opportunity to stop." The judge pointed out that defendant

stabbed Richardson after he choked her. According to the judge, defendant

showed a reckless disregard for the serious harm his conduct would inflict upon

Richardson.

In addition, the judge refused to find mitigating factor three. N.J.S.A.

2C:44-1(b)(3) (defendant acted under strong provocation). The judge rejected

defendant's claim that he acted under strong provocation because Richardson

purportedly indicated she had a new boyfriend while they drove past her new

boyfriend's residence. The judge found that this was "an excuse, not a

provocation." The judge pointed out that defendant did not act when faced with

this alleged provocation. He waited until later, after he had driven back to

Piscataway.

The judge also found no basis for finding mitigating factor four. N.J.S.A.

2C:44-1(b)(4) (substantial grounds to excuse or justify defendant's conduct,

though failing to establish a defense). The judge noted that defendant had

claimed he acted as a result of a verbal argument with Richardson. The judge

determined that this was not a justification for defendant's actions.

Moreover, the judge found mitigating factor five did not apply. N.J.S.A.

2C:44-1(b)(5) (the victim's conduct induced or facilitated commission of the

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offense). The judge stated that he would not blame the victim for her "past

failings," which are unfortunately "all too common." The judge also stated that

"yelling and screaming does not induce homicide."

The judge further found the record did not support application of

mitigating factors six, N.J.S.A. 2C:44-1(b)(6) (restitution); seven, N.J.S.A.

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

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

circumstances not likely to recur); nine, N.J.S.A. 2C:44-1(b)(9) (defendant's

character and attitude indicate he is unlikely to commit another crime); eleven,

N.J.S.A. 2C:44-1(b)(11) (incarceration would entail excessive hardship to

defendant or his dependents); or twelve, N.J.S.A. 2C:44-1(b)(12) (willingness

to cooperate with law enforcement).

We are convinced there is sufficient credible evidence in the record to

support the judge's findings of fact. Defendant's argument that the sentence is

excessive lacks sufficient merit to warrant further comment. R. 2:11-3(e)(2).

We conclude the sentence imposed here is not an abuse of discretion.

Affirmed.

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