STATE OF NEW JERSEY VS. KAREEM T. TILLERYÂ (14-06-0084, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0682-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KAREEM T. TILLERY, a/k/a
KAREEM ALI TILLERY, KAREEM
A. TILLERY, KAREEM J. TILLERY,
KARIM TILLERY, KARIEM A.
TILLERY, KAREEM TILLERY-JONES
AND KAREEM R. JONES,
Defendant-Appellant.
_______________________________
Submitted June 8, 2017 - Decided July 18, 2017
Before Judges Lihotz and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
14-06-0084.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Sarah D. Brigham,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Kareem T. Tillery appeals from an October 7, 2015
Judgment of Conviction, following a jury verdict and challenges
the sentence imposed. On appeal, defendant seeks reversal of his
conviction, based, in part, on what he contends was an involuntary
custodial statement, which violated his Miranda1 rights.
Alternatively, he requests resentencing, arguing the judge
improperly considered irrelevant facts. More specifically,
defendant asserts:
POINT I
THE STATEMENT TO LAW ENFORCEMENT SHOULD HAVE
BEEN SUPPRESSED BECAUSE THE STATE FAILED TO
MEET ITS BURDEN OF PROVING BEYOND A REASONABLE
DOUBT THAT [DEFENDANT] WAIVED HIS MIRANDA
RIGHTS.
POINT II
THE MATTER SHOULD BE REMANDED FOR RESENTENCING
BECAUSE THE SENTENCE IS MANIFESTLY EXCESSIVE
AND UNDULY PUNITIVE.
A. THE SENTENCING COURT IMPROPERLY REPLACED
ITS JUDGMENT FOR THAT OF THE JURY WHEN
SENTENCING [DEFENDANT] FOR OFFENSES
WHICH THE JURY DID NOT CONVICT HIM OF
COMMITTING.
B. THE SENTENCING COURT ASCRIBED UNDUE
WEIGHT TO [DEFENDANT'S] PRIOR
CONVICTIONS, RESULTING IN DUPLICATIVE
CONSIDERATION OF HIS PRIOR RECORD.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2 A-0682-15T3
We have reviewed these arguments in light of the record and
applicable law. We affirm.
A cooperating informant told State Police, defendant, who he
characterized as a family friend, sold firearms. A seven to eight
month investigation commenced, culminating with defendant's arrest
on August 22, 2013. During the investigation, police recorded
telephone conversations and monitored the informant's "controlled
buy" of guns at defendant's workplace, a local supermarket, and
his designated residence in Union Township. Defendant was charged
with eight counts of weapons offenses.
Prior to trial, Judge Martin G. Cronin conducted a Rule 104
evidentiary hearing to review defendant's challenges to the
admissibility of his post-arrest custodial statements. State
Police Detective Hugo Ribeiro testified and identified documents
he completed at the time of arrest, including the Police Arrest
Form, SP121; the arrest report; and the standard Miranda card that
was signed and acknowledged by defendant. The State also relied
upon the transcript of the August 22, 2013 custodial interview,
which defendant acknowledged accurately recorded all statements
captured on the audio recording. Both parties submitted written
briefs and offered additional oral arguments.
Detective Ribeiro completed the arrest form in the interview
room and informed defendant of his Miranda rights. Defendant
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signed the Miranda card also signed by then Trooper Ribeiro, as
the advising officer, and Detective Miguel Holguin, as a witness.
Both troopers remained present during the interrogation.
On cross-examination, the defense demonstrated the claimed
"biographical information," requested by Detective Ribeiro was not
necessary because police had many of these facts. More
importantly, the information was inadmissible because it confirmed
defendant's address, place and address of employment, phone
number, nickname, descriptive tattoos, and provided evidence which
the State otherwise would be required to prove as part of its case
against defendant.
Judge Cronin concluded defendant's statements made prior to
the issuance of Miranda warnings exceeded permissible routine
booking information and amounted to investigatory proofs.
Therefore, those statements were inadmissible. Judge Cronin also
found, despite the absence of an express waiver of rights, the
totality of the direct and circumstantial evidence demonstrated
defendant's post-Miranda statements were made knowingly and
voluntarily. The judge required post-Miranda references to
defendant's nickname be redacted, otherwise, the balance of the
interview was admissible.
Following trial, the jury convicted defendant of second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)
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(count two) and fourth-degree unlawful disposition of a weapon,
N.J.S.A. 2C:39-9(d) (count five). The jury hung on the remaining
counts of the indictment. Judge Cronin granted the State's motion
to impose a discretionary extended term, concluding defendant
satisfied the requirements of a persistent offender. N.J.S.A.
2C:44-3(a). On count one, he sentenced defendant to a twenty-year
prison term, subject to a ten-year period of parole ineligibility
in accordance with the Graves Act. On count five, he imposed a
concurrent prison term of eighteen months. The State dismissed
the remaining counts of the indictment.
We consider defendant's challenges to the order denying his
motion to suppress his custodial statement. Although he
acknowledges Miranda warnings were administered, defendant argues
the evidence was insufficient to prove he waived these rights.
To find police properly informed a suspect of his or her
Miranda rights and that these rights were voluntarily waived
"turn[s] on factual and credibility determinations . . . ." State
v. W.B., 205 N.J. 588, 603 n.4 (2011). In our review, we determine
whether there is "sufficient credible evidence in the record to
sustain the trial judge's findings and conclusions." Ibid. If
so, our "task is complete and [we] should not disturb the result
. . . ." State v. Johnson, 42 N.J. 146, 162 (1964). We will
defer to the trial judge's factual findings, which are
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"substantially influenced by his [or her] opportunity to hear and
see the witnesses and [develop a] feel of the case, which a
reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-
10 (2010) (quoting Johnson, supra, 42 N.J. at 161-62). However,
if "a trial court's findings [are] so clearly mistaken 'that the
interests of justice demand intervention and correction[,]' . . .
an appellate court properly reviews 'the record as if it were
deciding the matter at inception and make[s] its own findings and
conclusions.'" State v. Hreha, 217 N.J. 368, 382 (2014) (quoting
Johnson, supra, 42 N.J. at 162). Further, we are not bound by a
trial court's resolution of legal issues, which remain subject to
our de novo review. State v. Shaw, 213 N.J. 398, 411 (2012).
Defendant's challenge invokes his right to remain silent.
"The Fifth Amendment privilege against self-incrimination, made
applicable to the states through the Fourteenth Amendment,
provides that '[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.'" State v. P.Z., 152 N.J.
86, 100 (1997) (quoting U.S. Const. amend. V); see also State v.
Reed, 133 N.J. 237, 250 (1993) (holding "the right against self-
incrimination is founded on a common-law and statutory . . .
basis," and establishes "'no person can be compelled to be a
witness against himself.'") (quoting State v. Zdanowicz, 69 N.J.L.
619, 622 (E.&.A. 1903)). Attendant to this right is the "absolute
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right to remain silent while under police interrogation . . . ."
Reed, supra, 133 N.J. at 520.
Because the privilege against self-incrimination is not self-
implementing, the right is safeguarded through the use of Miranda's
"prophylactic-procedural safeguards . . . ." State v. Knight, 183
N.J. 449, 461 (2005) (quoting State v. Burris, 145 N.J. 509, 520
(1996)). Without question, "[c]onfessions obtained . . . during
a custodial interrogation are barred from evidence unless the
defendant has been advised of his or her constitutional rights."
Ibid. (citing Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612,
16 L. Ed. 2d at 707). Moreover, it is the State which bears the
burden of "prov[ing] the voluntariness of a confession beyond a
reasonable doubt." State v. Galloway, 133 N.J. 631, 654 (1993);
see also State v. Presha, 163 N.J. 304, 313 (2000) (holding the
State bears the burden of proving a defendant's waiver of his or
her rights was knowing, intelligent, and voluntary beyond a
reasonable doubt.).
Indeed, a suspect who was administered and understood Miranda
warnings, but did not invoke his rights, "waives the right to
remain silent by making an uncoerced statement to the police."
Berghuis v. Thompkins, 560 U.S. 370, 388-89, 130 S. Ct. 2250,
2264, 176 L. Ed. 2d 1098, 1115 (2010). Therefore, contrary to
defendant's assertion, an express waiver of rights is not required.
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Rather, judges must evaluate the totality of the circumstances
surrounding the interrogation and consider: "the suspect'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." State v. Miller, 76 N.J. 392, 402 (1978)
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct.
2041, 2047, 36 L. Ed. 2d 854, 862 (1973)). The judge may also
weigh a defendant's "prior experience with the police" and the
"period of time between 'administration of the [Miranda] warnings
and the volunteered statement.'" Knight, supra, 183 N.J. at 463,
466 (quoting State v. Timmendequas, 161 N.J. 515, 614 (1999),
cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89
(2001)).
For the reasons stated by Judge Cronin, we reject defendant's
challenges and conclude the totality of the evidence upholds the
determination defendant issued a voluntary statement knowing his
Miranda rights did not require he speak. The judge considered all
events, defendant's prior experiences with law enforcement, and
his statement referencing a recognition he need not respond to the
questions posed, noting he was "going to jail anyway." As Judge
Cronin found, defendant's statement was "not otherwise the product
of coercion or duress."
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Defendant alternatively challenges the imposed sentence as
excessive. More specifically, he argues resentencing is required
suggesting the judge's reasoning was flawed when imposing the
maximum second-degree sentence. Defendant argues the judge: (1)
considered acts for which defendant was not convicted; and (2)
ascribed undue weight to defendant's criminal record. We disagree.
Regarding the second point, the judge considered defendant's
adult criminal record in Virginia and New Jersey, as well as
juvenile adjudications. These offenses were committed while
defendant was on probation. Accordingly, we conclude defendant's
second point lacks sufficient merit to warrant further discussion
in our opinion, R. 2:11-3(e)(2). See State v. Thomas, 188 N.J.
137, 153 (2006) ("A court's findings assessing the seriousness of
a criminal record, the predictive assessment of chances of
recidivism, and the need to deter the defendant and others from
criminal activity, do all relate to recidivism, but also involve
determinations that go beyond the simple finding of a criminal
history and include an evaluation and judgment about the individual
in light of his or her history.").
We focus on the first claimed error. Judge Cronin found no
applicable mitigating factors, N.J.S.A. 2C:44-1(b), and applied
aggravating factors three (risk of re-offense), six (defendant's
criminal record), and nine (the need for deterrence). N.J.S.A.
9 A-0682-15T3
2C:44-1(a)(3), (6), (9). The judge found strong legislative policy
in relation to gun control to protect the public and noted
defendant knew the informant, to whom he sold weapons, had a record
of criminal convictions. The judge also noted he could consider
other charges against defendant, even though the jury did not
reach a verdict.
In United States v. Watts, 519 U.S. 148, 117 S. Ct. 633, 136
L. Ed. 2d 554 (1997), the United States Supreme Court held "a
jury's verdict of acquittal does not prevent the sentencing court
from considering conduct underlying the acquitted charge, so long
as that conduct has been proved by a preponderance of the
evidence." Id. at 157, 117 S. Ct. at 637, 136 L. Ed. 2d at 565.
Here, defendant was not acquitted; the jury hung. Defendant
refutes application of this principle, citing State v. Tindell,
417 N.J. Super. 530 (App. Div. 2011). We are not persuaded.
In Tindell, this court vacated a sentence imposed because the
"trial judge took exception to the verdict," demonstrating the
judge was "improperly influenced by [its] perception that the jury
rendered an unjust verdict in defendant's favor." Id. at 568,
572. Further, we noted evidence of inappropriate interactions
between the judge and the defendant, showed the judge's "sense of
moral outrage" impacted his sentencing decisions. Id. at 571.
Such is not the case in this matter.
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Here, Judge Cronin noted sufficient evidence to prove each
gun sale was proffered, allowing his consideration of those facts
when assessing the weight afforded to applicable aggravating
factors. Additionally, the judge's mention of facts surrounding
the charges for which the jury could not reach a verdict, which
the State dismissed, were not the sole basis used to apply any
aggravating factor. For example, he noted defendant was on
probation when the first alleged gun sale occurred. The reliance
on these facts was not error. "[S]entencing judges may consider
material that otherwise would not be admissible at trial, as long
as it is relevant and trustworthy." State v. Smith, 262 N.J.
Super. 487, 530 (App. Div.), certif. denied, 134 N.J. 476 (1993)
(finding a sentencing judge could consider evidence from a doctor
who had not been qualified as an expert).
Affirmed.
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