STATE OF NEW JERSEY VS. ROE N. WRIGHT (15-04-0234, SALEM 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NOT FOR PUBLICATION WITHOUT THE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-2137-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROE N. WRIGHT, a/k/a
ROENINO WRIGHT,

Defendant-Appellant.
_______________________________

Submitted May 8, 2018 – Decided June 14, 2018

Before Judges Yannotti and Carroll.

On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No.
15-04-0234.

Joseph E. Krakora, Public Defender, attorney
for appellant (Margaret McLane, Assistant
Deputy Public Defender, of counsel and on the
briefs).

John T. Lenahan, Salem County Prosecutor,
attorney for respondent (David M. Galemba,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
 Defendant Roe N. Wright was tried before a jury and found

guilty of second-degree possession of a firearm without a permit,

contrary to N.J.S.A. 2C:39-5(b). Defendant appeals from the

judgment of conviction dated September 27, 2016. We affirm.

I.

Defendant was charged under Salem County Indictment No. 15-

04-0234 with possession of a firearm for an unlawful purpose,

N.J.S.A. 2C:39-4(a), and possession of a firearm without first

having obtained a permit to carry same, N.J.S.A. 2C:39-5(b). Ojuwan

Jenerette also was charged under the indictment with various drug

offenses, but defendant's charges were severed for trial.

Defendant filed motions to suppress the statement he provided to

the law enforcement officers and the handgun.

At the hearing on defendant's motion to suppress his

statement, James Gillespie, an investigator in the Salem County

Prosecutor's Office (SCPO), testified that in the early morning

hours of January 23, 2015, he and police officers from the Salem

City Police Department (SCPD) entered a room at a motor lodge to

execute a search warrant. Defendant, Jenerette, J.P., and J.P.'s

two children were in the room and sleeping.1 Gillespie handcuffed

1
We refer to J.P. by her initials to protect her privacy and the
privacy of her children.

2 A-2137-16T3
and detained the adults. Gillespie said defendant did not appear

or smell intoxicated.

Gillespie placed defendant in handcuffs and searched him.

Gillespie also "searched the area where [he] found [defendant],"

which included a lounge chair that defendant had been sleeping on.

Gillespie found "a revolver near the edge of the chair," "[u]nder

the cushion on the left-hand side." Gillespie said defendant could

easily have reached the revolver. In the room, the officers also

found marijuana and cocaine. At the scene, Jenerette admitted the

drugs in the room were his, but no one admitted to ownership of

the firearm.

Defendant, Jenerette, and J.P. were transported to the SCPD.

While Gillespie was fingerprinting and photographing the suspects,

"they asked collectively what they were being charged with."

Gillespie explained that because everything was found in the common

area of the room, they were all going to be charged with narcotics

and weapons offenses.

Gillespie told the suspects that if anyone wanted to take

ownership of either the drugs or the gun, he would take a recorded

statement from that person and only that person would be charged.

Jenerette provided a statement indicating that he owned the drugs,

and defendant provided a statement admitting to ownership of the

gun. On cross-examination, Gillespie denied that he told defendant

3 A-2137-16T3
that if J.P. was charged with possession of the weapon, she would

likely lose custody of her children.

Defendant testified that on the morning of January 23, 2015,

he was at the motor lodge with Jenerette, J.P., and J.P.'s

children. He claimed he had been drinking liquor from about 7:00

p.m. on the previous evening until about 1:00 a.m. of the following

day. Defendant said he arrived at the room around 3:00 a.m., went

to the bathroom, "jumped in the chair," and fell asleep. He stated

that he woke up when the police "raided" the room and said they

had a search warrant for Jenerette.

Defendant further testified that he heard the officers say

they found a gun. The officers said Jenerette had admitted

ownership of the drugs. The officers transported defendant,

Jenerette, and J.P. to the police station and said they were going

to charge all of them because no one had admitted ownership of the

gun. Defendant testified that he told the officers it was not his

gun.

He further testified that one of the officers stated that if

J.P. was charged "she will lose her kids." The officer asked

defendant if he wanted that to happen. Defendant said he did not

want that to happen because he had been in the custody of the

4 A-2137-16T3
Division of Youth and Family Services (Division)2 for thirteen

years and he knew "how that felt." He decided to claim ownership

of the gun.

The trial judge determined that defendant's statement would

not be suppressed. The judge noted that he had listened to the

audiotape of the statement, which was admitted into evidence. As

indicated on the tape, defendant had been informed of his Miranda

rights,3 and he indicated that he understood his rights. Defendant

then signed the form waiving his Miranda rights. The judge found

that there was no indication that defendant did not know what he

was doing at that time.

The judge also noted that Gillespie had testified he did not

smell any liquor and there was nothing to indicate that defendant

was intoxicated. The judge stated that defendant claimed he took

responsibility for the gun so that J.P. would not be charged.

According to the judge, this indicated that defendant was someone

who knew exactly what he was doing. According to the judge,

defendant was willing to "manipulate the system" to obtain "a

certain goal."

2
The Division is now known as the Division of Child Protection
and Permanency.
3
Miranda v. Arizona, 384 U.S. 436 (1966).

5 A-2137-16T3
 The judge found that Gillespie's testimony was more credible

than defendant's testimony. The judge stated that he did not

believe defendant, noting that he had "much to gain" from

presenting testimony that was not true. The judge found, however,

that even if defendant had been told J.P.'s children would "end

up in" the Division's custody, that did not render his statement

involuntary.

The judge also considered defendant's age, education, and

intelligence, and noted that there was no evidence defendant did

not know what was going on when he provided the statement. The

judge gave slight weight to the fact that defendant had a prior

criminal record. The judge pointed out that defendant had been

informed of his Miranda rights. The judge observed that defendant

had been through the criminal justice system before as a juvenile

and adult, and he "understood what was happening" when he gave his

statement.

The judge further found that defendant had not been detained

for a lengthy period of time before he gave his statement, and the

questioning was neither repetitious nor prolonged. The judge noted

there was no evidence defendant had been punished physically or

was exhausted. The judge concluded, based on the totality of the

circumstances, that the State had proven beyond a reasonable doubt

6 A-2137-16T3
that defendant knowingly and voluntarily gave his statement to the

police.

Thereafter, the trial judge conducted an evidentiary hearing

on defendant's motion to suppress the handgun. At that hearing,

Richard Ware, an investigator in the SCPO, testified about the

execution of the search warrant at the motor lodge on January 23,

2015. Defendant also testified.

The judge denied that motion, finding that Ware's testimony

was credible. The judge found that the officers knocked on the

door to the room and announced their presence. When no one answered

the door, the officers breached the door and entered the room. The

judge found that the seizure of defendant was "proper and

necessary" in order to ensure the officers' safety and the

integrity of the scene, and to ensure that any contraband was not

damaged or destroyed.

The judge determined that the initial seizure was not an

arrest. The judge found that the search was reasonable and, while

the warrant authorized a search for CDS, the officers were entitled

to look anywhere CDS could be located. The judge found that

Gillespie properly recovered the handgun, and at that point, the

officers had probable cause to arrest defendant.

The judge noted that the gun was found in the cushion of the

chair where defendant had been sleeping. Defendant was the only

7 A-2137-16T3
person with access to the gun, and there were no facts indicating

that the gun belonged to someone else.

The court then granted the State's motion to dismiss the

count in which defendant was charged with possession of a weapon

for an unlawful purpose. Defendant was later tried before a jury

on the remaining charge, unlawful possession of a weapon. Gillespie

and Ware testified for the State, and defendant testified in his

own defense. The jury found defendant guilty of the charge.

Thereafter, the judge sentenced defendant to seven years of

incarceration, with a forty-two-month period of parole

ineligibility. This appeal followed.

On appeal, defendant argues:

POINT I
THE TRIAL COURT ERRONEOUSLY FAILED TO SUPPRESS
DEFENDANT'S STATEMENT.

POINT II
THE COURT'S EXCLUSION OF ANY TESTIMONY ABOUT
DEFENDANT'S EXPERIENCE WITH [THE DIVISION]
VIOLATED DEFENDANT'S CONSITUTIONAL RIGHT TO
PRESENT A DEFENSE AND REQUIRES REVERSAL OF HIS
CONVICTION.

POINT III
THE SEVEN-YEAR SENTENCE WITH [FORTY-TWO]
MONTHS OF PAROLE INELIGIBLITY IS MANIFESTLY
EXCESSIVE.

II.

As noted, defendant contends the trial judge erred by failing

to suppress his statement. He argues that the officer conducted a

8 A-2137-16T3
"two-stage interrogation." According to defendant, the officer

first conducted an unrecorded custodial interrogation without

informing him of his Miranda rights. Defendant contends that after

reading the Miranda warnings, the officer then conducted a second,

recorded interrogation, but failed to inform him that his prior

incriminating statement could not be used against him. Defendant

contends the trial court failed to address this "two-staged

interrogation." He argues that this "two-stage interrogation

technique" led to the recorded incriminating statement, which

should have been suppressed.

We note that defendant never argued in the trial court that

his statement should be suppressed because the officer allegedly

used a "two-stage interrogation" technique. We conclude, however,

that the trial court correctly decided to deny the suppression

motion.

In reviewing a trial court's ruling on a motion to suppress,

we must defer to the court's factual findings provided they are

supported by sufficient credible evidence in the record. State v.

Scriven, 226 N.J. 20, 32-33 (2016) (citing State v. Elders, 192

N.J. 224, 243-44 (2007)). Our deference to the trial court's

factual findings is especially appropriate when those findings

"are substantially influenced by [an] opportunity to hear and see

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

9 A-2137-16T3
court cannot enjoy." State v. Gamble, 218 N.J. 412, 424-25 (2014)

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). However, we

owe no deference to the trial court's ruling on an issue of law,

which we review de novo. State v. Watts, 223 N.J. 503, 516 (2015).

"[T]o safeguard a suspect's Fifth Amendment right against

self-incrimination, confessions obtained during custodial

interrogations are inadmissible as evidence unless the defendant

has been advised of his or her constitutional rights." State v.

Hubbard, 222 N.J. 249, 265 (2015) (quoting Miranda, 384 U.S. at

492). The term "custodial interrogation" is defined as

"questioning initiated by law enforcement officers after a person

has been taken into custody or otherwise deprived of his freedom

of action in any significant way." Id. at 265-66 (quoting Miranda,

384 U.S. at 444). "[I]f the questioning is simply part of an

investigation and is not targeted at the individual because she

or he is a suspect, the rights provided by Miranda are not

implicated." Id. at 266 (quoting State v. Timmendequas, 161 N.J.

515, 614-15 (1999)).

Miranda's protections extend only to words or actions of law

enforcement officers "reasonably likely to elicit an incriminating

response." Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

"[B]ooking procedures and the routine questions associated

therewith are ministerial in nature and beyond the right to remain

10 A-2137-16T3
silent. Even unexpected incriminating statements made by in-

custody defendants in response to non-investigative questions by

the police without prior Miranda warnings are admissible." State

v. M.L., 253 N.J. Super. 13, 21 (App. Div. 1991) (citations

omitted).

In State v. Mallozzi, 246 N.J. Super. 509, 511 (App. Div.

1991), the defendant was arrested and informed of his pending

charges during the booking process, which included fingerprinting

and photographing. Defendant then "made certain statements which

were . . . incriminating" before Miranda warnings were read to

him. Ibid. The trial court denied the defendant's motion to

suppress the statements that he made during the booking process.

Id. at 513. On appeal, we held "there was clearly no questioning,

nor can it be fairly concluded that [the] defendant was subjected

to the functional equivalent of questioning." Id. at 516.

We further explained that "informing [the] defendant of the

charges against him was not designed or done to elicit any type

of response from defendant and thus places [the officer's] actions

outside the Innis definition of 'interrogation.'" Ibid. Rather,

the officer "was merely providing [the] defendant information to

which he was otherwise entitled." Ibid. Accordingly, we affirmed

the trial judge's denial of the defendant's motion to suppress the

statements that he made while being processed. Id. at 518.

11 A-2137-16T3
 As was the case in Mallozzi, Gillespie spoke to defendant and

the other two suspects while he was processing them at the police

station. He stated that the person who admitted ownership of the

gun would be the only person charged with a weapons offense. This

statement was not, however, part of an interrogation, nor was it

designed to elicit an incriminating response from defendant.

Defendant said the gun was his, he was informed of his Miranda

rights, and he provided a recorded statement.

We are convinced there is sufficient credible evidence in the

record supporting the trial judge's findings of fact. We also

conclude that the judge's decision to deny defendant's motion to

suppress his statement was legally correct.

III.

Next, defendant argues that the trial judge erred by

precluding him from testifying about his experience while in the

Division's custody. He contends the judge's ruling denied him his

constitutional right to present a defense. We disagree.

A trial court's evidentiary rulings are "entitled to

deference absent a showing of an abuse of discretion, i.e., there

has been a clear error of judgment." State v. Marrero, 148 N.J.

469, 484 (1997); see also Verdicchio v. Ricca, 179 N.J. 1, 34

(2004) (holding that admissibility of evidence falls within the

broad discretion of the trial judge). The court's evidentiary

12 A-2137-16T3
ruling must be upheld on appeal "unless it can be shown that the

trial court palpably abused its discretion, that is, that its

finding was so wide of the mark that a manifest denial of justice

resulted." State v. Carter, 91 N.J. 86, 106 (1982).

Like any other evidence presented at trial, a witness's

testimony must be relevant; that is, it must "hav[e] a tendency

in reason to prove or disprove any fact of consequence to the

determination of the action." N.J.R.E. 401. Once deemed relevant,

the evidence is admissible "[e]xcept as otherwise provided in [the

evidence] rules or by law." N.J.R.E. 402. Evidence "may be excluded

if its probative value is substantially outweighed by the risk of

(a) undue prejudice, confusion of issues, or misleading the jury

or (b) undue delay, waste of time, or needless presentation of

cumulative evidence." Brenman v. Demello, 191 N.J. 18, 30 (2007)

(quoting N.J.R.E. 403).

During direct examination, defendant's attorney asked him why

he had claimed possession of the gun. Defendant said he did so to

prevent the Division from taking custody of J.P.'s children. He

explained, "I was in [the Division] and I didn't want the kids to

be in the system. I [was] in [the Division] from one to [thirteen]

years old. I was sexually abused, physically abused, starved and

separated from my brother."

13 A-2137-16T3
 The assistant prosecutor objected to this testimony and

requested to be heard outside the presence of the jury. At sidebar,

the prosecutor asserted that defendant's testimony was "getting a

little out of hand." The prosecutor noted that defendant had

testified that he was sexually abused while in the Division's

care, and the State had no way "to corroborate any of this

information." The prosecutor argued that defendant's testimony

regarding his experience with the Division should be excluded

because it was clearly designed to elicit the sympathy of the

jury, and the State could not challenge defendant's assertions.

Defense counsel responded by asserting that the testimony was

addressed to defendant's "motivation as to why he claimed

[ownership of] the [gun] . . . , [and] the[] jury needs to know

why it is that he would confess to owning the gun if it wasn't

true." The judge decided to strike defendant's comments from the

record and instructed the jurors that they were not to consider

the comments during their deliberations.

Defense counsel then continued his direct examination of

defendant:

[DEFENSE COUNSEL]: Okay. So how long were you
in [the Division's] care?

[DEFENDANT]: Thirteen years.

[DEFENSE COUNSEL]: Thirteen years? And how
would you evaluate your experience while in

14 A-2137-16T3
 [the Division's] care? Was it positive or
negative?

[DEFENDANT]: It was the worst experience I
ever had. Worst.

[THE STATE]: Objection

THE COURT: I'm going to overrule the
objection. I find that that falls outside of
the lines of what my ruling was.

[DEFENSE COUNSEL]: Thank you, Judge.

. . . .

[DEFENSE COUNSEL]: So I'm sorry; you said that
your experience was?

[DEFENDANT]: The worst experience I ever had.

[DEFENSE COUNSEL]: Could you speak up a little
bit, please?

[DEFENDANT]: It was the worst experience I
ever had.

[DEFENSE COUNSEL]: And what you're
characterizing as the worst experience you
ever had, this endured for how long?

[DEFENDANT]: Thirteen years.

We are convinced the judge did not mistakenly exercise his

discretion by limiting defendant in testifying about his

experiences while in the Division's care. As noted, defendant

testified that he accepted responsibility for the gun because he

was concerned that if J.P. was charged with possession of the gun,

the Division might take custody of her children. The judge allowed

15 A-2137-16T3
defendant to testify that he had been in the Division's care and

state three times that it was "the worst experience" he ever had.

The judge properly exercised his authority under N.J.R.E. 403

by precluding defendant from testifying that he had been sexually

and physically abused, starved, and separated from his brother

while in the Division's care. Detailed testimony about defendant's

experience with the Division had little probative value. Moreover,

the probative value of this testimony was substantially outweighed

by the risk of undue prejudice to the State, and the likelihood

that the jury would be misled and confused by the testimony.

Even if the court erred by limiting the testimony, the error

is not grounds for reversal because it was harmless. State v.

J.R., 227 N.J. 393, 417 (2017) (quoting State v. Macon, 57 N.J.

325, 337-38 (1971)). "Convictions after a fair trial, based on

strong evidence proving guilt beyond a reasonable doubt, should

not be reversed because of a technical or evidentiary error that

cannot have truly prejudiced the defendant or affected the end

result." State v. W.B., 205 N.J. 588, 614 (2011).

Here, defendant explained to the jury three times that his

time under DYFS's care was the "worst experience" of his life.

Furthermore, during closing arguments, defense counsel referenced

defendant's experience while in the Division's care. Counsel

argued that defendant only took responsibility for the gun because

16 A-2137-16T3
he "feared greatly the prospect" that J.P.'s children would be

taken away and "suffer the same fate" that he suffered.

The jury nevertheless found that the State had proven beyond

a reasonable doubt that defendant unlawfully possessed the weapon.

In light of the strong if not overwhelming evidence of defendant's

guilt, it is unlikely the jury would have reached a different

verdict if defendant had been allowed to provide more details

concerning his experiences under the Division's care. We therefore

conclude that even if the court's evidentiary ruling was erroneous,

defendant was not prejudiced and the error had no effect upon the

jury's ultimate determination.

IV.

Defendant further argues that his sentence is manifestly

excessive. As noted previously, the judge sentenced defendant to

a seven-year prison term, with forty-two months of parole

ineligibility.

When reviewing a trial court's sentencing determination, we

apply a deferential standard of review. State v. Fuentes, 217 N.J.

57, 70 (2014). We must affirm the sentence if (1) the trial court

followed the sentencing guidelines; (2) the court's findings of

aggravating and mitigating factors were based on competent and

credible evidence in the record; and (3) the resulting sentence

is not clearly unreasonable so as to "shock the judicial

17 A-2137-16T3
conscience." Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65

(1984)).

Here, the sentencing court found aggravating factors three,

N.J.S.A. 2C:44-1(a)(3) (risk that defendant will reoffend); six,

N.J.S.A. 2C:44-1(a)(6) (defendant's prior criminal record); 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 factors.

Regarding aggravating factor three, the judge stated that

although defendant was young, he already had one conviction for

which he was on probation when he committed the instant offense.

The judge reasoned that this was "certainly an indicator of someone

that's going to commit another offense." With regard to aggravating

factor six, the judge noted that defendant had convictions for

"obstruction, [defiant] trespassing, and ha[d] a pending charge"

for contempt at the time of his sentencing. Defendant also had a

prior indictable conviction for resisting arrest for which he

violated probation and received jail time. Regarding aggravating

factor nine, the judge found that there was a "need to deter this

defendant and others from violating the law." The judge addressed

and determined that no mitigating factors applied.

On appeal, defendant argues that the judge erred by failing

to find mitigating factors one, N.J.S.A. 2C:44-1(b)(1)

(defendant's conduct did not cause or threaten serious harm); two,

18 A-2137-16T3
N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his

conduct would cause or threaten serious harm); and seven, N.J.S.A.

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

criminal activity).

Defendant asserts that although he was convicted of

possession of a handgun, he did not cause or intend to cause any

harm. He states he does not have an extensive prior record, and

this is his first prison sentence. He argues that any sentence

longer than the minimum five years is "unnecessary."

Here, the judge found that mitigating factors one and two did

not apply. The judge stated that "[t]he very nature of possession

of a handgun is the contemplation [of] or the threat of serious

harm." The judge also found that mitigating factor seven was not

applicable because defendant has a prior history of delinquency

and criminal activity.

Thus, the judge followed the sentencing guidelines, and there

is sufficient credible evidence in the record to support the

court's findings regarding the aggravating and mitigating factors.

The seven-year sentence, with forty-two months of parole

ineligibility, is reasonable and does not shock the judicial

conscience.

Affirmed.

19 A-2137-16T3