STATE OF NEW JERSEY VS. TYRICK MIRANDA (15-02-0248 AND 16-06-1052, 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NOT FOR PUBLICATION WITHOUT THE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-5268-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRICK MIRANDA, a/k/a
MICHAEL GAINES, and
TYRICK N. MIRANDA,

Defendant-Appellant.
_________________________

Argued November 6, 2019 – Decided January 2, 2020

Before Judges Yannotti, Hoffman and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 15-02-
0248 and 16-06-1052.

C. Patrick Thomas, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Michael A. Kaplan, Robert J.
Kipnees and C. Patrick Thomas, on the briefs).

Joie D. Piderit, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
 respondent (Christopher L.C. Kuberiet, Acting
Middlesex County Prosecutor, attorney; Joie D. Piderit,
of counsel and on the brief).

PER CURIAM

Defendant was tried before a jury and found guilty of third-degree

conspiracy to commit burglary, third-degree burglary, third-degree conspiracy

to commit theft by unlawful taking, seven counts of third-degree theft by

unlawful taking, and seven counts of second-degree certain persons not to

possess weapons. Defendant appeals from the judgments of conviction dated

July 13, 2017. We affirm.

I.

Defendant and Laquawn Hill were charged under Indictment No. 15-02-

0248 with: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a),

N.J.S.A. 2C:18-2 (count one); second-degree burglary while armed with a

deadly weapon, N.J.S.A. 2C:18-2(a)(1) (count two); third-degree conspiracy to

commit theft, N.J.S.A. 2C:5-2(a), N.J.S.A. 2C:20-3 (count three); third-degree

theft of a Colt Python .357 handgun, N.J.S.A. 2C:20-3(a) (count four); second-

degree unlawful possession of a Colt Python .357 handgun, N.J.S.A. 2C:39-5(b)

(count five); third-degree theft of a Kel-tech 9mm sub-2000 rifle, N.J.S.A.

2C:20-3(a) (count six); third-degree unlawful possession of a Kel-tech 9mm

A-5268-16T1
2
sub-2000 rifle, N.J.S.A. 2C:39-5(c) (count seven); third-degree theft of a

Mossberg Maverick 12-gauge shotgun, N.J.S.A. 2C:20-3(a) (count eight); third-

degree unlawful possession of a Mossberg Maverick 12-gauge shotgun, N.J.S.A.

2C:39-5(c) (count nine); third-degree theft of a Montgomery Ward 20-gauge

pump shotgun, N.J.S.A. 2C:20-3(a) (count ten); third-degree unlawful

possession of a Montgomery Ward 20-gauge pump shotgun, N.J.S.A. 2C:39-

5(c) (count eleven); third-degree theft of a .22-caliber bolt action Savage rifle,

N.J.S.A. 2C:20-3(a) (count twelve); third-degree unlawful possession of a .22-

caliber bolt action Savage rifle, N.J.S.A. 2C:39-5(c) (count thirteen); third-

degree theft of an Erma EM-1 carbine rifle, N.J.S.A. 2C:20-3(a) (count

fourteen); third-degree unlawful possession of an Erma EM-1 carbine rifle,

N.J.S.A. 2C:39-5(c) (count fifteen); third-degree theft of a Remington .22 pump

action octagon barrel rifle, N.J.S.A. 2C:20-3(a) (count sixteen); third-degree

unlawful possession of a Remington .22 pump action octagon barrel rifle,

N.J.S.A. 2C:39-5(c) (count seventeen); and third-degree theft of certain movable

property, with a value in excess of $500, N.J.S.A. 2C:20-3(a) (count eighteen).

In addition, defendant was charged in Indictment No. 16-06-1052 with

seven counts of certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1).

The charges pertain to the possession of the Colt Python .357 handgun (count

A-5268-16T1
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one); Kel-tech 9mm sub-2000 rifle (count two); Mossberg Maverick 12-gauge

shotgun (count three); Montgomery Ward 20-gauge pump shotgun (count four);

.22 caliber bolt action Savage rifle (count five), Erma EM-1 carbine rifle (count

six), and Remington .22 pump action octagon barrel rifle (count seven).

II.

Defendant first was tried before a jury on the charges in Indictment No.

15-02-0248. The State presented evidence showing that in 2013, M.H. and her

husband W.H. lived in a single-family home in Edison.1 C.D. is M.H.'s

biological daughter and she lived with a friend in New Brunswick. In 2013,

M.H. and W.H. allowed C.D. to come to their home to do laundry. Ordinarily,

M.H. and W.H. did not give C.D. a key to the home or permit her to bring others

there without permission. At the time, C.D. was drinking alcohol, smoking

marijuana, and using other drugs.

On December 24, 2013, M.H. and W.H. went to Florida for a vacation.

They planned to return on December 31, 2013. M.H. and W.H. permitted C.D.,

M.H.'s other adult children, and S.K., to enter the home while they were away.

S.K., a friend of the family, lived in a basement apartment in the home. On

1
We use initials to identify the victims and other persons involved to protect
their privacy.
A-5268-16T1
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December 27, 2013, C.D. brought defendant to M.H. and W.H.'s residence. C.D.

and defendant were friends and they planned to do laundry.

M.H. and W.H.'s bedroom was adjacent to the living room. C.D. took a

shower while defendant remained in the living room. W.H. was the legal owner

of seven guns, and he kept them in the bedroom, under the bed. Defendant asked

C.D. about the gun cabinet in the house and where M.H. and W.H. had gone.

C.D. told him M.H. and W.H. were in Florida.

That evening, at around 10:00 p.m., C.D. drove defendant to his

grandmother's home in New Brunswick. Until 3:00 a.m. or 4:00 a.m., defendant

repeatedly sent C.D. text messages to make arrangements so they could get

together. C.D. characterized the exchanges as "unusual." Defendant later

admitted he contacted C.D. to ensure she would not find him in M.H. and W.H.'s

home.

On December 28, 2013, C.D. returned to the home with two friends and

noticed her mother's jewelry box was open and some of the bedroom drawers

were opened. C.D. did not, however, inform the police of the apparent burglary.

She said she was worried her mother would blame her for the theft. It seems

C.D. had previously taken some of her mother's property without her permission.

A-5268-16T1
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C.D. contacted defendant because she thought he was responsible for the theft,

but defendant said he did not know what she was talking about.

On December 31, 2013, M.H. and W.H. returned to their home and noticed

that seven firearms and pieces of jewelry worth about $500 were missing. M.H.

and W.H. reported the thefts to the police. Officer Paul Pappas of the Edison

Police Department (EPD) was dispatched to the residence and found no evidence

of a forced entry.

Steven Todd of the EPD was the lead detective on the investigation. Todd

spoke to W.H., C.D., S.K., and R.G., one of C.D.'s friends. W.H. and C.D.

provided Todd with a phone number, which was linked to defendant. Todd

obtained "data warrants" for records pertaining to defendant's and C.D.'s phones.

An analysis of the records showed that on the evening of December 27,

2013, phone calls were exchanged between defendant's phone and C.D.'s phone,

while defendant's phone was in the vicinity of M.H. and W.H.'s residence. In

addition, information from a cell tower showed that defendant's phone had been

used near M.H. and W.H.'s residence at 2:12 a.m., 3:31 a.m., and 4:09 a.m.

On May 6, 2015, the police obtained a warrant and arrested defendant in

New Brunswick. Defendant was taken to the Edison police headquarters, where

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Todd informed him of his Miranda2 rights, which he waived. In response to

questioning, defendant acknowledged he was with C.D. at M.H. and W.H.'s

home while C.D. did her laundry. He said he was with Hill and an unidentified

male when they took items of property out of the house.

Defendant also admitted that he set up the theft. He stated that Hill and

the unidentified male gave him about $200 and told him they would give him

more money after the burglary. Defendant said he knew the guns were stolen.

He stated, however, that he did not help carry the guns out of the house. He

claimed he remained in the car while Hill and the unidentified male entered the

house, but he later admitted he was in the house when the guns were taken.

In addition, defendant stated that after Hill and the unidentified male took

the guns, he got into the car with them and drove to New Brunswick. They later

returned to the house and took the jewelry. Defendant said he was not present

when Hill and the unidentified male stole the jewelry. He stated, however, that

he had been at the residence three times.

The jury found defendant guilty of third-degree conspiracy to commit

burglary (count one, as amended); third-degree burglary (count two, as

amended); third-degree conspiracy to commit theft (count three); and third-

2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-5268-16T1
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degree theft of the firearms (counts four, six, eight, ten, twelve, fourteen, and

sixteen). The jury also found defendant not guilty of second-degree unlawful

possession of the firearms (counts five, seven, nine, eleven, thirteen, fifteen, and

seventeen); and third-degree theft of the jewelry (count eighteen).

The State then advised the court that it intended to proceed with the trial

of the certain persons charges in Indictment No. 16-06-1052. Defendant moved

to dismiss those charges in light of the jury's finding that defendant was not

guilty on the counts charging unlawful possession of the weapons. The trial

judge denied the motion.

Defendant then was tried before the same jury on the certain persons

charges. The parties generally relied upon the evidence presented in the first

phase of the trial proceedings, but the State also presented testimony that

defendant had been convicted of an offense in 2007. The parties stipulated that

the offense was a predicate offense for the certain persons charges. The jury

found defendant guilty on all seven counts.

Defendant thereafter filed a motion to set aside the jury's verdict on the

certain persons charges. Among other contentions, defendant argued that the

verdict was against the weight of the evidence and violated his right against

A-5268-16T1
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double jeopardy. The judge filed a written opinion and order dated June 6, 2017,

denying the motion.

Thereafter, the trial judge granted the State's motion for an extended term

pursuant to N.J.S.A. 2C:43-7. Defendant was sentenced on July 11, 2017.

Defendant appeals from the judgments of conviction dated July 13, 2017, and

argues:

POINT I
THE TRIAL COURT ERRED BY IMPROPERLY
ALLOWING THE CERTAIN PERSONS TRIAL TO
GO FORWARD AFTER [DEFENDANT] WAS
ACQUITTED OF UNLAWFUL POSSESSION.

POINT II
THERE WAS INSUFFICIENT EVIDENCE FOR A
RATIONAL TRIER OF FACT TO HAVE FOUND
THAT THE STATE HAD PROVEN THE ESSENTIAL
ELEMENTS OF THE BURGLARY AND THEFT BY
UNLAWFUL COUNTS BEYOND A REASONABLE
DOUBT.

POINT III
THE TRIAL COURT ERRED BY ADMITTING INTO
EVIDENCE [DEFENDANT'S] STATEMENT TO
THE POLICE, WHICH WAS GIVEN WITHOUT A
SUFFICIENT MIRANDA WARNING AND AFTER
[DEFENDANT] REQUESTED COUNSEL.

POINT IV
THE TRIAL COURT ERRED BY IMPROPERLY
ADMITTING EVIDENCE OF [DEFENDANT'S]
PRIOR DRUG DEALING, WHICH DENIED HIM A
FAIR TRIAL.

A-5268-16T1
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 POINT V
THE SENTENCE IMPOSED WAS MANIFESTLY
EXCESSIVE.

III.

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

allowing the State to proceed with the trial on the certain persons offenses in

Indictment No. 16-06-1052. Defendant argues that the judge should have

dismissed those charges in light of the jury's finding that defendant was not

guilty of unlawful possession of the firearms in the first phase of the trial

proceedings.

"When an appellate court reviews a trial court’s analysis of a legal issue,

it does not owe any special deference to the trial court’s legal interpretation.”

State v. Miles, 229 N.J. 83, 90 (2017). Here, defendant argues that the trial court

erred as a matter of law in denying his application to dismiss the certain persons

charges. Therefore, we review the trial court's determination de novo. Ibid.

In her decision denying defendant's motion to dismiss the certain persons

charges, the judge pointed out that while the jury found defendant not guilty of

unlawfully possessing the guns, those charges required proof that defendant

possessed the weapons without obtaining a permit to carry or a firearms

purchaser identification card. See N.J.S.A. 2C:39-5(b), (c)(1). The judge stated

A-5268-16T1
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that she could not speculate on the basis for the jury's verdict on the gun

possession charges.

The judge also noted that defendant had been found guilty of theft of the

weapons, which required the jury to find he had taken or exercised unlawful

"control" over the movable property of another person. See N.J.S.A. 2C:20-

3(a). The judge concluded that the State could proceed to trial on the certain

persons charges based on the jury's finding that defendant was guilty of theft of

the weapons.

The judge again addressed this issue when defendant filed a motion to set

aside the jury's verdict on the certain persons charges. In the opinion and order

dated June 6, 2017, the judge concluded that the trial on these charges did not

violate defendant's right against double jeopardy under the Fifth Amendment to

the United States Constitution and the parallel provision of the New Jersey

Constitution. The judge found that unlawful possession of a weapon and the

certain persons charge have different elements and are not the same offense for

double jeopardy purposes.

A. Collateral Estoppel.

On appeal, defendant argues the trial judge erred by allowing the State to

proceed with the trial of the certain persons charges because the jury found he

A-5268-16T1
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did not unlawfully possess the weapons. He contends collateral estoppel applied

and barred further litigation of this issue.

Collateral estoppel is "the principle that bars relitigation between the same

parties of issues actually determined at a previous trial." Ashe v. Swenson, 397

U.S. 436, 442 (1970); see also State v. Gonzalez, 75 N.J. 181, 192 (1977).

"Collateral estoppel has been used in criminal prosecutions to complement the

constitutional protection against double jeopardy by protecting defendants

against multiple prosecutions for different 'offenses' based on the same set of

facts." Id. at 192.

For collateral estoppel to apply in a criminal proceeding, the defendant

must establish that:

(1) the issue to be precluded is identical to the issue
decided in the prior proceeding; (2) the issue was
actually litigated in the prior proceeding; (3) the court
in the prior proceeding issued a final judgment on the
merits; (4) the determination of the issue was essential
to the prior judgment; and (5) the party against whom
the doctrine is asserted was a party to or in privity with
a party to the earlier proceeding.

[State v. Brown, 394 N.J. Super. 492, 502 (App. Div.
2007) (quoting First Union Nat'l Bank v. Penn Salem
Marina, 190 N.J. 342, 352 (2007)).]

A-5268-16T1
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The doctrine "usually precludes prosecution for an offense only after a defendant

has been previously placed in jeopardy for another offense based on the same

issue." Id. at 503.

"[W]hen a defendant is charged at the same time with unlawful possession

of a weapon and possession of a weapon by a convicted felon . . . , [t]he two

charges must be tried separately since proof that defendant was a convicted felon

. . . clearly tends to prejudice the jury in considering the former [charge]." State

v. Ragland, 105 N.J. 189, 193 (1986). However, for purposes of applying

collateral estoppel, "[t]he first part of a bifurcated trial is not a 'prior action' with

respect to the second part of the trial, given that the same jury sits throughout

both parts." State v. Ragland, 198 N.J. Super. 330, 336 (App. Div. 1985).

Here, the charges in the two indictments were bifurcated in accordance

with Ragland and tried sequentially before the same jury. Thus, there was no

"previous trial" or "prior proceeding" to which estoppel could attach. See Ashe,

397 U.S. at 442; Brown, 394 N.J. Super. at 502. We conclude collateral estoppel

did not bar the State from proceeding to trial on the certain persons charges.

B. Double Jeopardy.

Next, defendant argues that because the jury found him not guilty of

unlawful possession of the weapons, the trial on the certain persons charges

A-5268-16T1
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violated his right against double jeopardy.

"The Double Jeopardy Clause contains three protections for defendants."

Miles, 229 N.J. at 92. "It protects against (1) 'a second prosecution for the same

offense after acquittal,' (2) 'a second prosecution for the same offense after

conviction,' and (3) 'multiple punishments for the same offense.'" Ibid. (quoting

North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). The "prime concern" in a

double jeopardy case is "whether the second prosecution is for the same offense

involved in the first." Id. at 93 (quoting State v. Yoskowitz, 116 N.J. 679, 689

(1989)).

Here, the proceedings on the certain persons charges were not "a second

prosecution" for double jeopardy purposes. The charges in the indictments are

part of a single proceeding. The charges were bifurcated pursuant to Ragland

and tried sequentially before the same jury. Therefore, the jury's verdict on the

charges of unlawful possession of the weapons in the first phase of the

proceeding did not preclude the trial of the certain persons charges in the second

phase.

Even if the proceeding on the certain persons charges is deemed to be a

"second prosecution," the trial of those charges was not barred on double

jeopardy grounds. In New Jersey, the courts apply the "the same-elements test"

A-5268-16T1
14
for purposes of determining whether a second prosecution is barred by double

jeopardy principles. Id. at 96.

Therefore, "where the same act or transaction constitutes a violation of

two distinct statutory provisions, the test to be applied to determine whether

there are two offenses or only one, is whether each provision requires proof of

a fact which the other does not." Id. at 93 (quoting Blockburger v. United States,

284 U.S. 299, 304 (1932)). "In other words, if each statute at issue requires

proof of an element that the other does not, they do not constitute the same

offense and a second prosecution may proceed." Ibid.

Here, the trial judge correctly concluded that double jeopardy principles

did not bar defendant's prosecution on the certain persons charges because those

charges and the charges of unlawful possession of weapons have different

elements. The judge noted that the certain persons statute requires proof that

defendant had a "prior qualifying conviction." See N.J.S.A. 2C:39-7(b)(1). On

the other hand, unlawful possession of a handgun, rifles or a shotgun requires

proof that defendant did not have a carry permit or firearms purchaser

identification card. See N.J.S.A. 2C:39-5(b), (c)(1).

The trial judge correctly applied the "same elements" test under Miles and

Blockburger. The judge correctly determined that the weapons possession

A-5268-16T1
15
charges and the certain persons charges have different elements and do not

constitute the same offense. Therefore, the jury's verdict on the weapons

possession charges did not preclude the trial on the certain persons charges.

C. Statutory Interpretation.

Defendant further argues that the trial judge erred by finding a person

could be found guilty under N.J.S.A. 2C:39-7(b)(1) even if found not guilty of

possession of the firearms in violation of N.J.S.A. 2C:39-5(b) and (c)(1) because

under N.J.S.A. 2C:39-7(b)(1), a person is guilty of the offense if he "controls"

or "possesses" the firearms. Defendant asserts that, under the criminal code, the

act of possession encompasses the act of control.

The "paramount goal" of statutory interpretation is to carry out the

Legislature's intent and "generally, the best indicator of that intent is the

statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005). We begin

our analysis by "giving the words of the statute 'their ordinary meaning and

significance.'" Nicholas v. Mynster, 213 N.J. 463, 480 (2013) (quoting

DiProspero, 183 N.J. at 492).

Moreover, "[w]ords, phrases, and clauses cannot be viewed in isolation;

all the parts of a statute must be read to give meaning to the whole of the statute."

Ibid. In addition, "[w]hen the language in a statute 'is clear and unambiguous,

A-5268-16T1
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and susceptible to only one interpretation,' courts should not look 'to extrinsic

interpretative aids.'" Burnett v. Cty. of Bergen, 198 N.J. 408, 421 (2009)

(quoting Lozano v. Frank DeLuca Constr., 178 N.J. 513, 522 (2004)).

Here, the Legislature provided in N.J.S.A. 2C:39-7(b)(1) that a person is

guilty of a crime of the second degree if he has been convicted of a qualifying

offense and "purchases, owns, possesses or controls" a firearm (emphasis

added). The Legislature specifically chose to use both "possesses" and

"controls" in describing this offense.

We must assume the Legislature intended for these terms to have distinct

meanings. Had the Legislature intended otherwise, it would not have included

the word "controls" in the statute. We therefore reject defendant's contention

that under N.J.S.A. 2C:39-7(b)(1), the terms "possess" and "control" have the

same meaning.

IV.

Defendant argues there was insufficient evidence for the jury to find the

State had proven the elements of burglary and theft beyond a reasonable doubt.

We note that defendant did not raise this issue in the trial court.

In considering whether there is sufficient evidence to support a

conviction, "[t]he scope of [this court's] review is limited and deferential." State

A-5268-16T1
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v. Reddish, 181 N.J. 553, 620 (2004). The court must determine "whether,

viewing the State's evidence in its entirety, be that evidence direct or

circumstantial, and giving the State the benefit of all its favorable testimony as

well as of . . . favorable inferences . . . , a reasonable jury could find guilt of the

charge beyond a reasonable doubt." Ibid. (quoting State v. Reyes, 50 N.J. 454,

459 (1967)).

On appeal, defendant argues the jury could not find that he committed the

burglary because there was insufficient evidence to establish he entered the

home without permission. In addition, defendant argues the jury could not find

he committed the theft because in his statement, he asserted that he did not help

carry, touch, or possess any of the stolen property.

However, in his statement to the police, defendant admitted he was in the

home when the weapons were stolen. Defendant also admitted he "directed"

Hill and the unidentified male, who had entered the home and stolen certain

property. In addition, defendant stated he later returned to the house with Hill

and the unidentified male and took additional property. We conclude there was

sufficient evidence for the jury to find that defendant committed burglary.

In addition, although defendant claims he did not touch the firearms, the

evidence shows that he was in the car at the time Hill and the unidentified male

A-5268-16T1
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took the firearms. Moreover, defendant was charged as an accomplice to Hill

and the unidentified male. We conclude there was sufficient evidence for the

jury to find that defendant committed theft.

V.

Defendant further argues that the trial judge erred by denying his motion

to suppress the statements he provided to Detective Todd. He contends the

detective did not provide him with sufficient Miranda warnings and questioned

him after he requested counsel.

"The right against self-incrimination is guaranteed by the Fifth

Amendment to the United States Constitution and [New Jersey]'s law, now

embodied in statute . . . and evidence rule . . . ." State v. Nyhammer, 197 N.J.

383, 399 (2009) (citing N.J.S.A. 2A:84A-19; N.J.R.E. 503). "Miranda's guiding

principles inform New Jersey's privilege against self-incrimination." State v.

O'Neill, 193 N.J. 148, 154 (2007).

In Miranda, "the United States Supreme Court imposed safeguards to

ensure that an individual would have a meaningful opportunity to exercise his

right against self-incrimination when subject to police interrogation . . . ."

Nyhammer, 197 N.J. at 400 (citing Miranda, 384 U.S. at 477). "[A] person

A-5268-16T1
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subject to custodial interrogation 'must be adequately and effectively apprised

of his rights.'" Ibid. (quoting Miranda, 384 U.S. at 467).

"[A] suspect is always free to waive the privilege and confess . . . [but]

that waiver must never be the product of police coercion." State v. Presha, 163

N.J. 304, 313 (2000). Thus, for a confession to be admissible, the State must

"prove beyond a reasonable doubt that the suspect's waiver . . . was knowing,

intelligent, and voluntary . . . based upon an evaluation of the totality of the

circumstances . . . ." State v. Yohnnson, 204 N.J. 43, 59 (2010) (internal

citations and quotations omitted) (quoting Presha, 163 N.J. at 313).

On appeal, defendant contends he did not make a knowing, intelligent,

and voluntary waiver of his Miranda rights. He asserts that when he was

arrested, Todd did not provide him with Miranda warnings. He also asserts that

Todd did not inform him of the "full spectrum of crimes he was suspected of

committing." Defendant also contends Todd should have stopped the

questioning when he asked him whether he needed an attorney.

Here, the judge found that Todd did not err by failing to inform defendant

of his Miranda rights when he arrested him. The judge pointed out that Todd

had informed defendant who he was, told him he was under arrest, and advised

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him he had been arrested for conspiracy to commit burglary and theft from a

residence on a specific street in Edison.

The judge found that once inside the interview room at police

headquarters, “[d]efendant was read his Miranda rights and signed a Miranda

form acknowledging that he was advised of his rights, understood his rights, and

agreed to speak with [Todd] voluntarily.” The judge stated that Todd

“repeatedly informed" defendant he wanted to be sure defendant understood his

rights. The judge rejected defendant’s assertion that Todd wore defendant down

by avoiding his inquiries about the difference between speaking without an

attorney or thereafter.

The judge noted that defendant “appeared to be assessing the situation for

himself to discover what evidence [Todd] had against him and he refused to

admit anything until he had proof that there was evidence against him.” The

judge pointed out that Todd reminded defendant the interview would end as soon

as he mentioned the word "lawyer." The judge also noted that defendant was

thirty-two years old and had “familiarity with the criminal justice system” as a

result of his extensive criminal record.

The judge found that defendant was not a “novice and surely ha[d] been

informed of his rights before.” In addition, the judge observed that the

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interrogation lasted approximately sixty-five minutes, which was “not . . . an

unreasonable amount of time,” and the video of the interrogation “shows that

the atmosphere during the interrogation [wa]s far from coercive.”

The judge's factual findings are entitled to our deference because they are

supported by sufficient credible evidence in the record. State v. Hubbard, 222

N.J. 249, 262 (2015). Moreover, the judge considered the totality of

circumstances and correctly concluded that defendant made a knowing,

intelligent, and voluntary waiver of his Miranda rights.

As noted, Todd informed defendant he was under arrest for conspiracy to

commit burglary and theft with regard to a residence on a specific street in

Edison. Todd did not withhold from defendant any facts essential to the waiver

of his Miranda rights.

Furthermore, the judge found that “[a]t no point during the interview did

[d]efendant invoke his right to counsel, wish to remain silent, or express a desire

to terminate the interview.” As noted, the record shows that Todd repeatedly

reminded defendant he could request an attorney at any time, and at such time,

the questioning would cease.

On appeal, defendant asserts he "asked [Todd] if he needed an attorney."

He argues that Todd then was required to clarify whether defendant wanted an

A-5268-16T1
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attorney before proceeding. The record shows that Todd reminded defendant he

could request an attorney at any time. The judge found that defendant did not

invoke his right to an attorney during the interview. The record supports that

finding.

VI.

Defendant also argues that the trial judge erred by admitting certain

evidence at trial. In support of this argument, defendant cites C.D.'s testimony

that she met defendant through "drugs." He contends this testimony improperly

portrayed him as a drug dealer or user. The testimony was only intended to

establish C.D.'s relationship with defendant. Furthermore, C.D. did not identify

the drugs and she did not suggest that defendant was engaged in the illegal

distribution of drugs.

Defendant also cites Todd's testimony that defendant's cellphone was

registered to a person named T.C., who provided a false address. He contends

this testimony raised an inference that he was using a "burner phone" and it

"associated" defendant with drugs and drug dealing.

Nothing in the record indicates, however, that a person who uses a

fictitious name when registering a phone is linked to drugs or drug dealing.

Moreover, the judge struck the comment and instructed the jury not to consider

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it. Jurors are presumed to follow the court's instructions. State v. Nelson, 173

N.J. 417, 469 (2002) (citing State v. Manley, 54 N.J. 259, 270 (1969)).

VII.

Defendant also contends his sentence is excessive. He argues that the

judge erred by failing to acknowledge at least one mitigating factor. He also

argues that the judge erred by imposing consecutive sentences.

We apply a "deferential" standard in our review of a lower court's

sentencing determination. State v. Fuentes, 217 N.J. 57, 70 (2014). "The

reviewing court must not substitute its judgment for that of the sentencing

court." Ibid. We "must affirm the sentence unless (1) the sentencing guidelines

were violated; (2) the aggravating and mitigating factors found by the sentencing

court were not based upon competent and credible evidence in the record; or (3)

'the application of the guidelines to the facts of [the] case makes the sentence

clearly unreasonable so as to shock the judicial conscience.'" Ibid. (quoting

State v. Roth, 95 N.J. 334, 364-65 (1984)).

Here, the trial judge found aggravating factors three (risk defendant will

commit another offense); six (extent of defendant's prior criminal record and the

seriousness of the offenses of which he has been convicted); and nine (need to

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deter defendant and others from violating the law). N.J.S.A. 2C:44-1(a) (3), (6),

(9). The judge found no mitigating factors.

The judge noted, among other things, that for about twenty years,

defendant has been committing crimes. The judge pointed out that defendant

has a "long list" of juvenile and municipal court convictions and two serious

Superior Court convictions. The judge stated that defendant's criminal history

has become more serious over time and found there was a risk he will commit

another offense.

In addition, the judge noted that defendant had been found guilty of the

theft of seven guns. The judge emphasized that these are serious offenses . The

judge stated that there is a need to send "a strong message to this defendant and

others that there are severe consequences for such actions." The judge added,

"Stealing guns, putting them out on the street is something that our law takes

seriously and rightfully so."

Therefore, on Indictment No. 15-02-0248, the judge merged count two

with count one, and sentenced defendant to six years of incarceration. The judge

also merged count three with count four, and sentenced defendant to a five-year

prison term. In addition, the judge imposed five-year terms on counts six, eight,

ten, twelve, fourteen, and sixteen. The judge ordered that the sentences would

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be concurrent with each other, but consecutive to the sentences imposed on

Indictment No. 16-06-1052. On that indictment, the judge sentenced defendant

to concurrent five-year prison terms, each with a five-year period of parole

ineligibility pursuant to N.J.S.A. 2C:39-7(b).

On appeal, defendant argues that the judge erred by failing to find

mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment will cause

excessive hardship to defendant or his dependents). He asserts he has one child

who is under ten years old and another child who is just entering adulthood. He

argues that imprisonment will deprive the children of their relationship with

him. He also claims he is legally responsible to provide financial support for

the children.

Defendant's contentions are without merit. The trial court considered

defendant's family situation and found that it was not sufficient to establish a

basis for mitigating factor eleven. It appears that defendant's children reside

with their respective biological mothers. Moreover, there is no indication that

defendant provided financial support for his children. Defendant presented

insufficient evidence to support a finding that his incarceration would be an

"excessive hardship" to himself or his dependents.

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 Defendant also contends the judge erred by imposing a consecutive

sentence for the certain persons offenses. He claims that the burglary, theft, and

certain persons convictions all arose from the same criminal episode and were

not independent of each other.

In State v. Yarbough, 100 N.J. 627, 643-44 (1985), the Court established

guidelines to assist the trial courts in determining whether to impose a

consecutive sentence:

(1) there can be no free crimes in a system for which
the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or
concurrent sentence should be separately stated in the
sentencing decision;

(3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:

(a) the crimes and their objectives were
predominantly independent of each other;

(b) the crimes involved separate acts of violence
or threats of violence;

(c) the crimes were committed at different times
or separate places, rather than being committed so
closely in time and place as to indicate a single period
of aberrant behavior;

(d) any of the crimes involved multiple victims;

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 (e) the convictions for which the sentences are to
be imposed are numerous;

(4) there should be no double counting of aggravating
factors;

(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense; and

(6) there should be an overall outer limit on the
cumulation of consecutive sentences for multiple
offenses not to exceed the sum of the longest terms
(including an extended term, if eligible) that could be
imposed for the two most serious offenses.

The sixth Yarbough factor has been superseded by legislation. See L. 1993, c.

223; State v. Brown, 138 N.J. 481, 559 (1994).

Here, the trial judge noted that defendant had participated in the burglary

of a residence, during which seven firearms were stolen. The provisions of the

code pertaining to burglary and theft crimes are intended to protect property,

whereas the certain persons statute is intended to ensure that persons who have

been previously convicted of serious crimes do not possess guns. The judge

stated that defendant knew he was not permitted to possess guns, but brazenly

stole seven firearms.

The judge found that this disregard of the law "is completely separate and

distinct from the theft of the weapons itself because of defendant's status" as a

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person who is not permitted to possess such weapons. The judge added that the

number of the charges and their serious nature provides further support for a

consecutive sentence.

The judge properly applied the Yarbough factors and provided a thorough

explanation for her determination. The record supports the judge's decision to

impose a consecutive sentence for the certain persons offenses.

We therefore conclude that the trial judge complied with the sentencing

guidelines, and there is sufficient credible and competent evidence in the record

for her findings. We also conclude defendant's sentence is a reasonable exercise

of the court's discretion and it is not excessive.

Affirmed.

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