STATE OF NEW JERSEY VS. DAVON M. GORDON (14-06-1582, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4517-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVON M. GORDON, a/k/a
DAVON M. GORDAN, and
DEVON GORDON,
Defendant-Appellant.
_______________________________
Submitted February 13, 2019 - Decided July 17, 2019
Before Judges Fuentes and Accurso.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 14-06-
1582.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).
Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Following denial of his motion to exclude statements he made to the
police, defendant Davon M. Gordon was convicted by a jury of fourth-degree
impersonation of a law enforcement officer, N.J.S.A. 2C:28-8(b), and
sentenced to eighteen months in State prison. He appeals his conviction,
raising the following issues:
POINT I
THERE WAS NO EVIDENCE THAT GORDON
INTENDED FOR ANYONE "TO SUBMIT TO," OR
OTHERWISE ACT "IN RELIANCE UPON,"
PRETENDED "OFFICIAL AUTHORITY." N.J.S.A.
2C:28-8B. BECAUSE THE STATE INTRODUCED
NO EVIDENCE OF THE REQUIRED MENTAL
STATE, THE COURT ERRED BY DENYING
GORDON'S MOTION FOR A JUDGMENT OF
ACQUITTAL. U.S. Const., Amends. V, XIV; N.J.
Const., Art. I, Pars. 1, 9, 10.
POINT II
BECAUSE LAW ENFORCEMENT FAILED TO
ADMINISTER MIRANDA WARNINGS TO
GORDON DESPITE INTERROGATING HIM
WHEN HE WAS NOT FREE TO LEAVE, THE
TRIAL COURT ERRED BY DENYING THE
MOTION TO SUPPRESS GORDON'S RESPONSES.
U.S. Const., Amends. V, XIV; N.J. Const., Art. I,
Pars. 1, 9, 10.
A-4517-16T2
2
Because we agree with the trial court judge that defendant was not in custody
when he made the statements complained of to the police, and his motion for
acquittal was correctly denied, we affirm.
The facts are straightforward and easily summarized. Defendant took
his car to be repaired at a shop in South Orange, identifying himself to the
owner as a Newark detective. The owner saw a badge at defendant's waist and
defendant provided him with a PBA card. Thus when defendant asked for "a
break" on the bill, the owner, believing defendant to be a police officer, agreed
to apply his long-standing policy of supporting law enforcement officers by
discounting the repairs.1
Sometime later, however, the owner became suspicious as to whether
defendant was actually a police officer. When defendant returned to the shop
complaining about the repairs, the owner asked defendant to leave the
premises. When defendant refused, the owner called the police. The arresting
detective testified at an N.J.R.E. 104 hearing as to what occurred after police
arrived.
1
We express no opinion on the ethics of any law enforcement officer availing
him or herself of such a discount. See International Association of Chiefs of
Police Law Enforcement Code of Ethics, https://www.theiacp.org/resources/
law-enforcement-code-of-ethics (last visited July 11, 2019).
A-4517-16T2
3
The detective stated that when he drove up, two or three other officers
were already at the scene. Defendant was standing outside. According to the
detective, the owner had complained previously about defendant, prompting
the detective to run a record check from which he learned defendant had been
arrested previously for impersonating a police officer. The detective testified
he approached defendant as he stood outside and asked him for identification.
Defendant gave him a driver's license and the detective then went over to
speak to the owner, who was also standing outside.
The detective returned to continue his questioning of defendant for
another five to ten minutes. After defendant denied being a police officer in
response to the detective's question, the detective asked whether defendant had
a badge. Defendant lifted his shirt to reveal a gold badge clipped to his
waistband. When the officer asked whether defendant had any other
identification, defendant gave the detective several Newark Police business
cards and an FOP card. When defendant again denied he was a police officer,
he was placed under arrest.
In response to questions put to him on cross-examination, the detective
admitted that had defendant refused to speak with him, the detective would
have asked defendant to stay in order to complete his investigation. The
A-4517-16T2
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detective further conceded that had defendant not agreed to stay, the detective
"probably" would not have let him leave, unless the owner determined not to
"pursue any charges." The detective, however, testified defendant agreed to
answer his questions, was never handcuffed prior to his arrest and none of the
officers "put their hands on [him]." According to the detective, the only
witness at the N.J.R.E. 104 hearing, he was the first officer to approach
defendant, and defendant simply "stayed in the same spot" while the detective
stepped away briefly to speak to the owner.
Defendant contended his responses to the detective's questions and his
turning over the badge and business cards should all be excluded because he
was subjected to custodial interrogation without Miranda2 warnings.
Defendant argued the detective's testimony established he was in custody as he
was not free to leave.
The trial court judge rejected that argument. Finding the detective's
testimony credible, the judge concluded defendant answered the detective's
questions voluntarily, and his movement was not restricted in any manner.
The judge found, "[t]o the contrary, it's clear that [defendant] had returned to
the station to either have his car fixed properly . . . or to receive a refund of the
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-4517-16T2
5
payment he had made for services rendered and was not going to leave the
premises until that problem was satisfactorily resolved." The judge further
found the detective's questions were nothing more than "general on-the-scene
questioning" not triggering the necessity for Miranda warnings.
Our review of a trial court's decision to admit a defendant's statement to
police is circumscribed. State v. A.M., 237 N.J. 384, 395 (2019). We must
defer to the trial court's factual findings "when 'those findings are supported by
sufficient credible evidence in the record.'" State v. S.S., 229 N.J. 360, 374
(2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). Our review of the
court's legal conclusions, however, is de novo. State v. Tillery, __ N.J. __, __
(2019) (slip op. at 34).
Although the constitution is not offended by police engaging in
"[g]eneral on-the-scene questioning as to facts surrounding a crime or other
general questioning of citizens in the fact-finding process," Miranda, 384 U.S.
at 477, a custodial interrogation, even one occurring in a public place, requires
warnings, see State v. P.Z., 152 N.J. 86, 102-03 (1997). Miranda protections
apply "when a person is both in custody and subjected to police interrogation."
State v. Hubbard, 222 N.J. 249, 270 (2015).
A-4517-16T2
6
We disagree with the trial court judge that the detective's questions here
constituted only general questions as to the facts, not amounting to
interrogation. There was, of course, no constitutional impediment to the
detective approaching defendant and asking him for identification. See Florida
v. Royer, 460 U.S. 491, 497 (1983); State v. Davis, 104 N.J. 490, 497 (1986).
But the trial judge was incorrect that the detective's more specific questions to
defendant, including whether he possessed a badge, were no different. That
question was obviously likely to engender an incriminating response and thus
amounted to interrogation. See Rhode Island v. Innis, 446 U.S. 291, 301
(1980) (defining interrogation as direct questions likely to result in
incriminating statements); Hubbard, 222 N.J. at 267. The State concedes as
much in its brief by failing to even argue the issue.
Thus the question as to whether defendant's unwarned statement should
have been admitted turns on whether defendant was free to leave when the
detective interrogated him. See State v. Stampone, 341 N.J. Super. 247, 252-
53 (App. Div. 2001). The test for custody is an objective one; thus defendant's
argument regarding the detective's subjective intent to detain him misses the
mark. As our Supreme Court has explained,
whether a suspect is in custody depends on the
objective circumstances of the interrogation, not on
A-4517-16T2
7
the subjective views harbored by either the
interrogating officers or the person being questioned.
That is, a police officer's unarticulated plan has no
bearing on the question whether a suspect was "in
custody" at a particular time; the only relevant inquiry
is how a reasonable [person] in the suspect's position
would have understood his situation.
[State v. O'Neal, 190 N.J. 601, 615-16 (2007)
(citations omitted)].
Defendant's subjective intent to remain in the place of questioning is not
controlling either. We therefore reject the trial court's legal conclusion that
defendant was not in custody because he was not going to leave the repair shop
until his issue with the owner had been resolved. See State v. Boone, 232 N.J.
417, 426 (2017) (noting the de novo review of the trial court's legal
conclusions in suppression decisions). We agree with its conclusion that
defendant was not in custody, however, based on the detective's testimony,
which the court deemed credible. See id. at 426-27.
Specifically, the detective testified his questioning of defendant was
brief and conversational, lasting no more than five to ten minutes; it occurred
outside in a public place; and although there were several officers present, they
did not surround defendant or prevent him from leaving. See State v. Brown,
352 N.J. Super. 338, 354-56 (App. Div. 2002) (discussing several factors
relevant to question of custodial detention). Indeed, there is nothing in this
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record to suggest the police restricted defendant's movements or directed him
to remain at any point during the conversation leading up to his arrest.
The detective did not testify he told defendant to stay put while he went
to speak to the owner. Instead he claimed defendant simply remained where
he was while the detective stepped away briefly to confer with the owner who
was standing nearby. Accordingly, we cannot find the actions of the detective
and the surrounding circumstances would reasonably lead someone in
defendant's place to believe he could not freely leave under established case
law. We thus reject defendant's argument that he was in custody when
questioned by the detective. See State v. Coburn, 221 N.J. Super. 586, 596
(App. Div. 1987).
Defendant's remaining argument requires additional analysis. Defendant
was convicted of impersonating a public servant or law enforcement officer
under N.J.S.A. 2C:28-8. N.J.S.A. 2C:28-8(b), the provision specifically
referring to impersonating a law enforcement officer,3 provides:
A person commits a crime of the fourth degree if he
falsely pretends to hold a position as an officer or
member or employee or agent of any organization or
association of law enforcement officers with purpose
3
N.J.S.A. 2C:28-8(a), a nearly identical provision, addresses impersonating a
public servant, which is graded as a disorderly persons offense.
A-4517-16T2
9
to induce another to submit to such pretended official
authority or otherwise to act in reliance upon that
pretense.
Defendant contends his motion for acquittal should have been granted because
the State failed to prove he had a specific intent to induce the shop owner "to
submit to" or "act in reliance upon" his "pretended official authority," arguing
there is no law enforcement authority "to obtain discounts on services rendered
by private businesses."
We review the grant or denial of a motion for a judgment of acquittal
applying the same standard as the trial court. State v. Fuqua, 234 N.J. 583,
590 (2018). A court is bound to deny a motion for acquittal if
the evidence, viewed in its entirety, be it direct or
circumstantial, and giving the State the benefit of all
of its favorable testimony as well as all of the
favorable inferences which reasonably could be drawn
therefrom, is sufficient to enable a jury to find that
the State's charge has been established beyond a
reasonable doubt.
[Id. at 590-91.]
Here, defendant reads the provision to require a specific intent, which is to act
with the purpose to induce another to submit to pretended official "law
enforcement" authority, not found in the statute.
A-4517-16T2
10
N.J.S.A. 2C:28-8 was derived from Model Penal Code (MPC) section
241.9. Cannel, N.J. Criminal Code Annotated, cmt. 1 on N.J.S.A. 2C:28-8
(2019); N.J.S.A. 2C:28-8 (Historical and Statutory Notes). "When a provision
of the Code is modeled after the MPC, it is appropriate to consider the MPC
and any commentary to interpret the intent of the statutory language." State v.
Robinson, 217 N.J. 594, 606 (2014).
MPC section 241.9 provides "[a] person commits a misdemeanor if he
falsely pretends to hold a position in the public service with purpose to induce
another to submit to such pretended official authority or otherwise to act in
reliance upon that pretense to his prejudice."4 The MPC Commentaries
explain the aim of the statute "is to prevent prejudicial reliance upon pretense
of public authority" and thus protect individual citizens against fraud "that may
be accomplished by creating a false impression" of such authority. Model
Penal Code and Commentaries, cmt. 2 on § 241.9 at 194-95 (1980).
4
The Commentaries explain the tentative draft of the section proposed a two -
tiered grading scheme. "Impersonation of a public servant with intent to
induce reliance, whether or not prejudicial to the other party" with more
serious sanctions for one impersonating a law enforcement officer. Model
Penal Code and Commentaries, cmt. 3 on § 241.9 at 197. Our Legislature
obviously elected such an approach when it amended N.J.S.A. 2C:28-8 to add
subsection (b) in 2000, although not requiring prejudice to the other party.
A-4517-16T2
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The Commentaries explain that because the MPC provision is focused
on the actor's purpose to induce reliance by another, "the Model Code
provision would cover an actor who pretended to hold a position in the public
service in order to secure private credit." Id. at 195. Thus "[t]he Model Code
takes the position that impersonation of a public servant to achieve private
gain should be covered, even if it does not involve acts under pretense of
official authority" and excludes one "who acts in the false capacity of a public
servant but without intent thereby to harm anyone." Id. at 196 (emphasis
added). The commentaries explain "[t]hese judgments are implemented by
requiring impersonation 'with purpose to induce another to submit to such
pretended official authority or otherwise to act in reliance upon that pretense to
his prejudice.'" Ibid.
In addition to the persuasive authority of the Model Code Commentaries,
the statute's plain language makes clear the "official authority" referenced in
the statute is not "the power of law enforcement officers to make arrests, to
seize, and to search" as defendant asserts. See State v. Gandhi, 201 N.J. 161,
176 (2010) (noting the best indicator of legislative intent is most often the
plain language of the statute). The language that makes that obvious is the
inclusion of "member[s] or employee[s] or agent[s] of any organization or
A-4517-16T2
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association of law enforcement officers" among those it is a crime to
impersonate, as not all possess the law enforcement authority to search, seize
or make arrests. 5 See DiProspero v. Penn, 183 N.J. 477, 492 (2005) (noting
the importance of ascribing statutory words their ordinary meaning and
reading "them in context with related provisions so as to give sense to the
legislation as a whole").
Because the evidence would have permitted the jury to find beyond a
reasonable doubt that defendant acted with the purpose to induce the shop
owner to act in reliance on his pretended official authority as a law
enforcement officer, his motion for acquittal at the conclusion of the State's
case was properly denied. See State v. Reyes, 50 N.J. 454, 458-59 (1967).
Affirmed.
5
Noting there is nothing in the legislative history of the 2000 amendment to
include members, agents and employees of law enforcement officer
associations explaining why they were added, Cannel posits "[p]erhaps there
was a perceived problem with persons soliciting contributions pretending to be
acting for police organizations." Cannel, N.J. Criminal Code Annotated, cmt.
1 on N.J.S.A. 2C:28-8 (2019).
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