STATE OF NEW JERSEY VS. YUSUF IBRAHIM (14-04-0044, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1204-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
YUSUF IBRAHIM, a/k/a
YUSUT IBRAHIM, YUSEF F.
IBRAHIM, YUSIF IBRAHIM,
YUSLIF IBRAHIM, YUSUF
IBRAHAM, and YUSUF MESHAL,
Defendant-Appellant.
_______________________________
Argued May 2, 2019 – Decided August 22, 2019
Before Judges O'Connor and Whipple.
On appeal from the Superior Court of New Jersey,
Law Division, Hudson County, Indictment No. 14-04-
0044.
Jay L. Wilensky, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Jay L. Wilensky and
Joseph J. Russo, Deputy Public Defender, of counsel
and on the briefs).
Sara M. Quigley, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Sara M. Quigley, of counsel and on
the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Following a jury trial, defendant Yusuf Ibrahim was found guilty of two
counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1); two counts of second-
degree desecrating human remains, N.J.S.A. 2C:22-1(a); second-degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); two
counts of third-degree theft from a person, N.J.S.A. 2C:20-2(b)(2)(d); third-
degree hindering apprehension, N.J.S.A. 2C:29-3(b); fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d); and fourth-degree tampering
with physical evidence, N.J.S.A. 2C:28-6(1).
The court sentenced defendant to two consecutive life sentences on the
murder convictions, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
The sentences imposed for the remaining charges run concurrently to those
imposed for the murder convictions.
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Defendant appeals from his convictions and sentence. After reviewing
the record, briefs, and applicable legal principles, we affirm.
I
The key evidence adduced at trial relevant to the contentions on appeal
is as follows.
Ligdalis Gonzalez, a former friend of defendant, testified that on
February 4, 2013, she got into a car defendant was driving in order to ride
around and "smoke." In the car were two men Gonzalez did not know. At one
point, without any provocation, defendant hit one of the men with a dark
object, and both men appeared "scared." Because of defendant's actions,
Gonzalez got out of the car.
One of defendant's uncles, Thomas,1 testified that on February 5, 2013,
defendant telephoned him and asked that he meet defendant at Thomas's
mother's house. Thomas obliged but nothing of significance occurred that day,
although defendant mentioned he used a friend's car to drive to the house. The
following day, however, defendant told Thomas he killed two men because
they had threatened him and the family. Defendant also told Thomas he put
1
We use fictitious names to refer to defendant's family members in order to
protect their privacy.
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the bodies in his friend's car, drove to the house, dismembered the bodies, and
buried their remains in the woods behind the house.
"Horrified" by defendant's revelation, Thomas told defendant to leave.
Thomas left but minutes later returned to the house and found defendant still in
it. Thomas told defendant to remove the bodies from the property. Defendant
said he would do so, but needed to "to dump the car first." Defendant then
drove away in a white Mercedes. On February 8, 2013, the police found a
burned-out Mercedes automobile in Philadelphia. It is not disputed the vehicle
was owned by one of the victims and that both victims were shot in that car.
On February 7, 2013, Thomas went to a local State Police barracks and
reported what defendant revealed to him. Detectives David Gosweiler and
Glenn Garrels and other State troopers immediately responded to Thomas's
mother's property with a dog trained in detecting cadavers. One of the police
officers testified the dog scratched the ground in one particular spot in the
woods. The detectives noted that on that spot there was "freshly disturbed
earth" covered with "several sticks." The ground was opened, revealing two
bodies without heads or hands. The dog led the police to another area where
the ground, which also appeared to have been recently disturbed; in that spot
the officers unearthed the missing body parts.
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Two saws and a shovel were also found hidden nearby. The bodies of
the victims were identified, and bloodstains found on the tools were consistent
with their DNA profiles. The medical examiner testified the victims' bodies
had been subject to gunshot wounds to the left sides of their chests at close
range, and that their heads and hands were removed with a "serrated or
sawtooth type of weapon."
On February 10, 2013, defendant was arrested and subsequently gave a
recorded statement to the detectives, which was played in the presence of the
jury. In that statement defendant stated he and the two victims use to "hang
out" or "ride around" smoking marijuana. On February 4, 2013, defendant and
the victims were riding in a white Mercedes, which belonged to one of the
victims, when one of the victims pulled out a gun and the victims threatened to
harm defendant's family members if he did not "work with them." The victims
continued to make threats as the three continued to ride around in the car.
At one point, defendant managed to grab the gun from the victim and
then shot and killed both victims. He went to Thomas's mother's home to bury
both bodies, using tools he found in the garage to dig a grave. He cut off the
victims' heads and hands with a "little hacksaw and scissors," and buried the
bodies in one hole and the heads and hands in another. Because he did not
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have a key to the house, he called Thomas, who eventually arrived and gave
defendant access.2 Defendant then showered and put his and the victims'
clothes in the trunk of the Mercedes.
The following morning, Thomas began to suspect something serious had
happened and "started to panic." Defendant told his uncle what he had done.
Defendant then left in the Mercedes, drove to Philadelphia and, with the help
of his brother, set the Mercedes on fire.
Defendant testified at trial. He claimed he and the victims were driving
around and smoking marijuana the evening of February 4, 2013, when one of
the victims forced defendant to get into the trunk. The victims drove to
another location, where defendant heard them beat and rape a woman by the
name of Fiona, who they subsequently put in the trunk with him.
After many hours, defendant was let out of the trunk and forced to drive
the car. While one of the victims pointed a gun at him, defendant managed to
wrestle the gun from the victim and then shot and killed both victims.
Defendant maintained he shot the victims in self-defense. Defendant let Fiona
out of the trunk, and they drove to Thomas's mother's house, where Fiona
2
It is not clear from the record where Thomas's mother was during the subject
incident.
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dismembered and defendant buried the victims' bodies. Defendant testified
that after his uncle arrived, he told him that he had killed two people in self -
defense and buried them in the yard. His uncle "disregarded" defendant's
claim he had acted in self-defense and became very nervous. Defendant left
the house, drove Fiona to Atlantic City, and then drove to Philadelphia where
he and his brother burned the Mercedes.
II
In counsel's brief, defendant raises the following points for our
consideration:
POINT I: THE DEFENDANT'S INCRIMINATORY
STATEMENT WAS TAKEN IN FLAGRANT
VIOLATION OF HIS FIFTH-AMENDMENT
RIGHTS TO SILENCE AND TO COUNSEL,
NECESSITATING SUPPRESSION. U.S. CONST.,
AMENDS. V, XIV; N.J. CONST, ART. 1, ¶ 10.
A. THE DEFENDANT'S RIGHTS WERE
VIOLATED BY THE OFFICERS' REPEATED
ASSURANCES THAT THEIR PURPOSE WAS
TO "HELP" HIM AND THEIR ASSERTION
THAT HE WOULD NOT BE ABLE TO
SPEAK WITH AN ATTORNEY PRESENT.
1. FALSE ASSURANCES BY
OFFICERS.
2. THE DETECTIVES WERE ALSO
DECEPTIVE CONCERNING THE RIGHT
TO COUNSEL.
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3. THE DEFENDANT'S RIGHT TO
COUNSEL WAS DENIED WHEN HE WAS
NOT PERMITTED TO CONTACT
COUNSEL.
B. THE DEFENDANT'S ACCOUNT OF THE
QUESTIONING SHOULD BE CREDITED.
C. ADMISSION OF THE STATEMENT WAS
PREJUDICIAL DESPITE THE DEFENDANT'S
TESTIFYING AT TRIAL.
D. CONCLUSION.
POINT II: THE TRIAL COURT ERRED IN
DENYING A MISTRIAL WHEN SUBSTANTIAL
EVIDENCE OF A PRIOR BAD ACT THAT HAD
BEEN APPROPRIATELY EXCLUDED WAS
PRESENTED.
POINT III: THE DEFENDANT WAS GREATLY
PREJUDICED BY THE TRIAL COURT'S
ADMISSION, IN REBUTTAL, OF EVIDENCE
THAT HE HAD PREVIOUSLY ADMITTED
OWNING A GUN. (PARTIALLY RAISED
BELOW).
POINT IV: THE PROSECUTOR
MISREPRESENTED FACTS AND IMPROPERLY
EXPRESSED PERSONAL OPINION IN
SUMMATION, NECESSITATING REVERSAL.
U.S. CONST., AMEND. XIV; N.J. CONST., ART. 1,
[¶¶] 9, 10. (NOT RAISED BELOW).
A. MISREPRESENTATION OF FACTS.
B. EXPRESSION OF PERSONAL BELIEF.
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POINT V: REVERSAL IS NECESSITATED BY
THE CUMULATION OF TRIAL ERROR. (NOT
RAISED BELOW).
POINT VI: THE TRIAL COURT IMPOSED AN
EXCESSIVE SENTENCE, NECESSITATING
REDUCTION.
A. THE TRIAL COURT ERRED IN
IMPOSING CONSECUTIVE SENTENCES.
B. THE QUANTUM OF THE SENTENCE IS
EXCESSIVE.
In his supplemental pro se brief, defendant advances the following
contentions:
POINT I: TRIAL COURT[']S FAILURE TO
CHARGE THE MODEL JURY CHARGE ON PRIOR
INCONSISTENT STATEMENTS WAS PLAIN
ERROR DENYING THE DEFENDANT HIS RIGHT
TO A FAIR TRIAL AND SHOULD ENTITLE THE
DEFENDANT TO A REVERSAL OF THE
CONVICTION. (NOT RAISED BELOW).
POINT II: DEFENDANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
IN VIOLATION OF THE FEDERAL AND STATE
CONSTITUTIONS. (NOT RAISED BELOW).
A
As for the first argument point asserted counsel's brief, following an
evidentiary hearing, the court denied defendant's motion to suppress the
statements he gave to the State Police detectives. In his motion defendant had
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asserted the detectives violated his Fifth Amendment 3 rights. An appellate
court reviewing a motion to suppress must uphold the trial court's factual
findings so long as they are supported by sufficient credible evidence in the
record. State v. Elders, 192 N.J. 224, 243 (2007). However, a trial court's
interpretation of the law and "the consequences that flow from established
facts" are reviewed de novo. State v. Gamble, 218 N.J. 412, 425 (2014).
The salient evidence adduced during the suppression hearing is as
follows. Just hours after he was arrested, defendant was placed in an interview
room of a police station. The video recorder in the interview room was
malfunctioning and made only a visual recording of what occurred in the
room, but one of the detectives used a digital voice recorder to record the
sound. Portions of the video and audio recordings were played during the
hearing. These recordings revealed that, at the outset of the interview,
Detective Gosweiler read to defendant his Miranda4 rights and defendant
signed a form acknowledging his understanding of those rights.
3
U.S. Const. amend. V.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
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Detective Garrels then made various statements to defendant before the
detectives asked him any questions. Defendant claims these statements were
inappropriate. The statements were:
We just want to hear your side of the story . . . .
We – we just wanted you to get that out and tell
people and have them understand why it happened.
Because we're – we're – we're the ones that are
backing you right now . . . . So, we – we kind of just
want to just lay it on the table now and kind of, like,
get through this together, right?
You're not alone. We're here with you . . . .
Garrels then asked defendant if the detectives could question him, to
which defendant responded "Sure." Gosweiler asked defendant a number of
questions about the kinds of activities in which defendant had engaged over
the previous week, how he typically spent a normal day, whether he was
working, and other questions designed to elicit background information.
Defendant did not answer any questions. Gosweiler then stated:
I want you to understand something. Number – first
and foremost, and we've said it before – we're here
because we want to be here. We're here because you
need some help right now. I basically want to be your
liaison like right now . . . .
I'm looking at you and I know you want to get it
out.
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You've been carrying it with you for awhile.
And nobody should have to carry that around that long
....
[L]ike I said I'm here to help you, but I can't – I don't
– I don't even know where to start helping you if – if
you're not – you know, I need you to talk to me.
None of Gosweiler's comments induced defendant to answer any
questions. After the detective's last comment, defendant mentioned he was
cold and the following exchange ensued between defendant and Gosweiler:
DEFENDANT: I don't want to waste your time. I
can't say anything.
DETECTIVE GOSWEILER: Huh?
DEFENDANT: I don't want to waste your time.
DETECTIVE GOSWEILER: You're not wasting my
time.
DEFENDANT: But I can't say anything about it.
(Inaudible).
DETECTIVE GOSWEILER: I didn't catch those last
couple of words.
DEFENDANT: I said I can't figure because I'm being
(inaudible) as of right now. I'm scared, that's all, and I
won't give a statement.
DETECTIVE GOSWEILER: But it's your right and I
respect that.
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The detectives then terminated the interview. At the suppression
hearing, Garrels testified he stopped the interview because defendant had
"invoked his Constitutional rights not to provide a statement at that time."
Defendant was taken to a holding cell, where he remained for thirty to thirty-
five minutes. The police claimed they did not talk to defendant while he was
in the holding cell, other than to ask him if he wanted any food or drink, until
defendant let the detectives know he wanted to speak to them.
Garrels testified he, Gosweiler, and another detective responded to the
holding cell upon learning defendant wanted to speak to them. According to
Garrels, defendant asked the detective what he was going to be charged with
and to where he was going to be transported next. Garrels told defendant he
was going to be transported to another county and that an investigation was
underway. Garrels also told defendant there were "several people" the
detectives wanted to speak to about the incident, including defendant's friends
and family members.
Defendant then advised he wanted to give a statement about the incident,
and the detectives moved him back to the interview room. Garrels testified
that no one asked defendant anything related to the allegations against him
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while defendant was in the holding cell, the reason why the conversation in the
cell between defendant and the detectives was not recorded.
At the start of the second interview, Gosweiler read to defendant his
Miranda rights and defendant indicated he understood them. Garrels then
stated to defendant:
DETECTIVE GARRELS: Yusef, before we talk to
you, you were in here earlier, we talked to you. You
requested an attorney. [5] That's when we stopped the
interview. We brought you back in because you said
you wanted to talk. You understand your rights. Do
you wish to speak with us without having an attorney
present?
DEFENDANT: I'd still like a lawyer, but I'll talk – I'll
talk to you guys, but I still want a lawyer.
DETECTIVE GARRELS: All right. But we – we
can't talk to you.
DEFENDANT: You can't talk to me with a – with a
lawyer present? You want to talk to me without a
lawyer?
5
During the suppression hearing, Garrels acknowledged that he misspoke at
the outset of the second interview when he stated the first interview had been
terminated because defendant requested counsel. At the hearing, Garrels noted
defendant had in fact invoked his right to remain silent. Garrels explained he
is so accustomed to terminating an interview because a defendant has asserted
his right to counsel, rather than to his right to remain silent, that Garrels
mistakenly stated to defendant the first interview was terminated because
defendant wanted an attorney.
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DETECTIVE GARRELS: That – that – that's your
decision to exercise your rights.
DETECTIVE GOSWEILER: That's your – we can't
talk.
DETECTIVE GARRELS: I – I can't tell you what to
do. We don't have, obviously, attorneys at the station,
or anything like that. If you request an attorney we
can't speak with you – which – which is your right.
I'm not trying to talk you out of doing that. I'm just
telling you the way it is.
DETECTIVE GARRELS: Tell us what you want to
do?
DEFENDANT: That's fine.
DETECIVE GARRELS: Do you – do you wish to
speak with us?
DEFENDANT: (No verbal response).
DETECTIVE GARRELS: Yes or no?
DETECTIVE GOSWEILER: We – we have to be
crystal clear on this.
DEFENDANT: I just want to make this nice and
simple.
DETECTIVE GARRELS: Let me just –just stop you.
Do you understand your rights?
DEFENDANT: Yes, I understand my rights.
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DETECTIVE GARRELS: Are you wishing – do you
wish to speak to us without having an attorney
present?
DEFENDANT: (No verbal response).
DETECTIVE GARRELS: You can tell me anything –
I mean, you're shaking your head and –
DEFENDANT: Yes.
DETECTIVE GARRELS: -- yes. Yes or no?
DEFENDANT: Yes. Yes.
DETECTIVE GARRELS: Yes. You're sure that's
what you want to do?
DEFENDANT: Yes.
At the suppression hearing, defense counsel conceded that for the
balance of the second interview, defendant did not assert his right to remain
silent or to counsel, and that the challenged portions of the two interviews
were contained in the first interview and in the above excerpt from the second
one. During the remainder of the second interview, defendant answered the
detectives' questions, which included inquiries about the incident to which
defendant gave many incriminating answers.
Defendant testified at the suppression hearing. He claimed that during
the first interview, he not only asserted his right to remain silent, but also his
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right to speak to an attorney. Defendant stated he listened to the audiotape of
the first interview and heard himself asserting both rights. Defendant
maintains that after he did so, Gosweiler stated he respected "that" and that is
"your right," and took him to the holding cell.
Defendant further testified that, after he got to the holding cell, the
detectives told him his family had given up on him. Upon hearing his family
had abandoned him, defendant's "resistance" faded and he succumbed to
answering questions asked of him by the detectives while in the cell.
Defendant claimed that, during the gap period between the first and second
interviews, the detectives also told him the people he cared for the most would
be arrested and remain in jail until he spoke to the detectives and did so
without an attorney. Defendant testified he told the detectives to charge him
with murder so his relatives would not be arrested, and further told the
detectives he would give the statement they wanted.
Defendant also testified he asked for the opportunity to contact an
attorney numerous times while in the holding cell, but his requests were
ignored. Defendant maintained he listened to a copy of an audiotape he
obtained in discovery, which purported to be a copy of the audiotape that was
used to record the first interview. Although he conceded the sound on the tape
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is muffled, defendant claimed he could hear the detectives interrogating him
while he was in the holding cell during the gap period. Defendant also
provided the court with a transcript he had created of those words he claimed
he could hear on the tape.
Defendant's specific legal arguments before the suppression court were
that he was deprived of his right to counsel because he was not afforded the
opportunity to contact an attorney after the first interview and when he made
an "unambiguous request" for an attorney at the outset of the second one. He
also asserted the waiver of his Miranda rights just before he was questioned at
the second interview was involuntary, that such waiver was induced by the
coercive statements the detectives made during the gap period.
The court denied defendant's motion to suppress the statements he made
to the detectives. In its written decision, the court found Garrels was and
defendant was not credible. The court analyzed the evidence and determined
that the detectives "scrupulously honored defendant's invocation of the right to
remain silent" by ending the first interview, defendant's rights were not
violated during the gap period, and defendant's claims the detectives
threatened his family during such period were unsupported by the evidence.
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The court further concluded defendant "knowingly and voluntarily
waived his rights and decided to speak with the detectives" at the second
interview, and "knew he could stop the interview at any time," as evidenced by
his terminating the first interview and refusing to talk about certain subjects
during the second one. The court also noted that when defendant made an
ambiguous request for counsel at the beginning of the second interview, in
response, one of the detectives made attempts to clarify whether he wished to
stop the interview and obtain an attorney, or continue the interview without
one. Only when defendant made it clear he wanted to proceed with the
interview without an attorney did the detectives commence questioning him.
The court found the detectives acted properly under the circumstances.
On appeal, defendant asserts for the first time that, during the first
interview, the detectives' comments that their role was to help him and that he
would benefit from providing a statement to them were so misleading that the
only remedy is to suppress his statements to them. Because this cont ention
was not raised before the trial court, the determination of whether the
detectives' comments were improper must be evaluated under the plain error
standard. See R. 2:10-2 ("Any error or omission shall be disregarded by the
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appellate court unless it is of such a nature as to have been clearly capable of
producing an unjust result . . . .").
In support of his argument, defendant cites State v. Puryear, 441 N.J.
Super. 280, 288-301 (App. Div. 2015). In that matter, we affirmed the trial
court's suppression of a statement because a detective told the defendant, prior
to reading to him his Miranda rights,"[t]he only thing you can possibly do here
is help yourself out. You cannot get yourself in any more trouble than you're
already in. You can only help yourself out here." Id. at 288. After the
detective read his Miranda rights to him, the defendant agreed to speak with
the police and provided a statement. Id. at 289. We found the detective's
instruction "contradicted a key Miranda warning" and "was not a permissible
interrogation technique" because, contrary to the detective's representation, the
defendant could in fact hurt himself by giving that statement. Id. at 298.
While we see some distinctions between what the detective stated to the
defendant in Puryear and what the detectives said to defendant here, we need
not make a determination about whether the subject comments made by the
detectives in this matter violated the particular holding in Puryear upon which
defendant relies. The record here shows that none of the subject comments, all
of which were made during the first interview, induced defendant to speak to
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the detectives or to make any of the statements he provided during the second
one. Therefore, none of defendant's statements must be suppressed. See State
v. Pillar, 359 N.J. Super. 249, 269 (2003) ("[A] misrepresentation by police
does not render a confession or waiver involuntary unless the
misrepresentation actually induced the confession." (quoting State v. Cooper,
151 N.J. 326, 355 (1997))).
Despite the comments the detectives made during the first interview,
defendant was steadfast in his obvious resolve to remain silent and to not
respond to any of the detectives' questions. In fact, after many questions were
posed to him, defendant ultimately told the detectives that he did not want to
waste their time, and that he "can't say anything," and "won't give a
statement." Moreover, significantly, when before the suppression court,
defendant's position was not that he was induced to speak during the second
interview because of any comment a detective made during the first interview,
but rather because of the threats the detectives made during the gap period.
Finally, as stated, defendant failed to assert before the trial court that the
detectives' comments during the first interview improperly induced him to
waive his Miranda rights. Even if defendant's statement were admitted in
error, which is not the case, the admission was harmless beyond a reasonable
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doubt, in light of the other, overwhelming evidence of defendant's guilt. See
State v. Tillery, 238 N.J. 293, 302 (2019) (finding any error in the trial court's
admission of the defendant's statement was harmless beyond a reasonable
doubt, in light of the overwhelming evidence of defendant's guilt independent
of his statement); Arizona v. Fulminante, 499 U.S. 279, 295-302 (1991)
(applying harmless-error analysis to improperly admitted coerced confession);
State v. Burris, 145 N.J. 509, 546 (1996) (Stein, J., concurring) (collecting
cases).
We reject the remaining contentions defendant asserts in his first
argument point and affirm the decision to deny his suppression motion for
substantially the reasons set forth in the motion court's written decision.
B
We have considered defendant's arguments in his remaining argument
points. We determine argument points two, three, four, and five of counsel's
brief and point one of defendant's pro se brief lack sufficient merit to warrant
discussion in a written opinion. See R. 2:11-3(e)(2).
In the second argument point of his pro se brief, defendant argues
counsel provided ineffective assistance for failing to request a charge on prior
inconsistent statements. Claims of ineffective assistance of counsel are
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typically not reviewed on direct appeal. See State v. Hess, 207 N.J. 123, 145
(2011) ("[W]e routinely decline to entertain ineffective-assistance-of-counsel
claims on direct appeal because those claims 'involve allegations and evidence
that lie outside the trial record.'" (quoting State v. Preciose, 129 N.J. 451, 460
(1992))). Only when the ineffective assistance claim can be determined on the
trial record alone is it appropriate to dispose of the issue on direct appeal.
State v. Castagna, 187 N.J. 293, 313 (2006). That is not the case here.
C
Finally, defendant contends the imposition of two consecutive life
sentences for the murder convictions was excessive. Among other things, he
argues the court erred by imposing consecutive life sentences for the two
murders given the victims were killed "virtually simultaneously." Here, the
court adequately explained its reasons for imposing consecutive sentences for
the two murder convictions. Defendant's remaining arguments about his
sentence are devoid of sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
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