STATE OF NEW JERSEY v. DARRICK HUDSON

After his motion to suppress inculpatory statements made to

police was partially denied, defendant Darrick Hudson entered a

guilty plea, pursuant to a negotiated agreement, to first-degree

aggravated manslaughter, N.J.S.A. 2C:11-4(a); first-degree

robbery, N.J.S.A. 2C:15-1; and third-degree hindering

apprehension, N.J.S.A. 2C:29-3(b)(1). He was sentenced in

accordance with the plea agreement to twenty-five years in

prison on the manslaughter charge, and concurrent ten- and

three-year terms on the other charges.

Defendant raises two points on appeal:

POINT I

THE DEFENDANT DID NOT WAIVE HIS MIRANDA RIGHTS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY IN EITHER OF HIS STATEMENTS, AND THE SECOND STATEMENT WAS THE PRODUCT OF THE FIRST. ACCORDINGLY, THE SECOND STATEMENT, AS WELL AS THE FIRST, MUST BE SUPPRESSED. U.S. CONST., AMENDS. V, VI, XIV.

A. THE SECOND STATEMENT WAS NOT TAKEN KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.

1. THE FIRST STATEMENT WAS CORRECTLY SUPPRESSED.

2. THE SECOND STATEMENT WAS INVOLUNTARY.

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B. THE SECOND STATEMENT WAS THE INEVITABLE PRODUCT OF THE IMPROPER FIRST STATEMENT.

POINT II

THE DEFENDANT RECEIVED AN EXCESSIVE AND DISPROPORTIONAL SENTENCE, NECESSITATING REDUCTION.

A. THE SENTENCE IS EXCESSIVE.

B. THE SENTENCE IS DISPROPORTIONAL.

I.

On March 9, 2007, at approximately 9:11 p.m., the Atlantic

City Police Department (ACPD) received a report of a shooting at

a gas station/mini-mart located on White Horse Pike (Absecon

Blvd.). Police arrived and found the owner of the gas station,

Makhan Singh, shot to death, and a station attendant wounded. A

second attendant told police that he was sitting near the gas

pumps talking with the other attendant when a man with a gun

came up and demanded money. The second attendant gave the

gunman money, but the other attendant was shot when he attempted

to flee. The second attendant was able to get away and heard

additional gunshots.

A motorist reported seeing men running from the scene and a

black Audi pulling away. The motorist provided the license

plate number of the Audi, and police quickly located the owner.

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After initially denying any involvement, the owner's

daughter, Gina McCrosson, and her boyfriend, Tyler Hart,

admitted picking up three men, Basir Biggins, Nasir Salaam, and

defendant. Once in the car, the three men discussed committing

a robbery. McCrosson and Hart drove them to several locations

that were closed until they found the Absecon Blvd. station.

Biggins, Salaam, and defendant got out of the car and

walked toward the station. After a few minutes, the three men

returned to the car and told McCrosson to drive away. She

dropped them off a few blocks away. McCrosson, Hart, Biggins,

Salaam, and defendant were all arrested.

Salaam provided a statement and identified Biggins as the

shooter of Singh. Salaam admitted that he shot the fleeing

attendant. Biggins denied being at the scene, but admitted he

provided one of the weapons used in the robbery. Two handguns

connected to Biggins were later recovered, as well as clothing

items, which Biggins claimed belonged to Salaam and defendant.

Ballistics testing revealed that one of the recovered handguns

fired a bullet found at the scene.

March 10, 2007 Statement

Defendant was arrested on the morning of March 10, 2007,

and was brought to the prosecutor's office for questioning.

Because defendant was sixteen years old at the time, police

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waited until his mother arrived to question him. A family

friend who knew defendant for more than ten years and served as

a mentor to defendant, came to offer moral support, but was not

present during defendant's initial questioning.

Before she entered the interview room, defendant's mother

was told that "the first one that gives the statement gets the

great deal[.]" With his mother present, Detectives Michael

Graham and Tim Smith entered the room and advised defendant of

his Miranda1 rights in his mother's presence. At 1:17 p.m.,

defendant and his mother signed a form listing those rights and

indicated that they understood defendant's rights and agreed to

waive them.

During the first hour, defendant was resistant to

questioning, visibly distraught, and, at times, crying.

Defendant also expressed to his mother during questioning that

he was "scared." Defendant's mother repeatedly yelled at him,

saying that if he knew something, he needed to tell police or

else he would go to prison for life. At about 2:28 p.m.,

defendant began crying, stood up, and pounded the wall,

exclaiming "I don't know as much as you all think I do."

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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At approximately 2:31 p.m., defendant's mother left the

room to have a cigarette and speak with the family friend.

Shortly after she left, defendant vomited. Detectives continued

to question defendant in his mother's absence and, at

approximately 2:33 p.m., defendant began to admit his

involvement. Before his mother reentered the room, Detective

Graham told defendant the other defendants were talking and he

was hurting more than helping himself.

At approximately 2:45 p.m., defendant's mother reentered

the room and stated twice that she was going to get a lawyer.

Detective Smith replied that he was going "to talk to [her] son

until [she] say[s], I don't want you talking to my son anymore.

You telling me you're going to get a lawyer doesn't mean

anything." Shortly thereafter, defendant's mother repeated, "I

think I should get a lawyer."

At 2:54 p.m., the detectives left the room, and defendant

and his mother were alone until 3:24 p.m., when Lieutenant Bruce

DeShields spoke with defendant and his mother. When asked if

defendant was being charged, DeShields said he was "fairly

certain," but did not know what he was going to be charged with,

yet. Lieutenant DeShields explained the process for charging a

juvenile to defendant's mother, and then both he and defendant's

mother left the room.

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At approximately 3:36 p.m., Lieutenant DeShields brought

the mentor into the room, who spoke with defendant alone for a

few minutes. Lieutenant DeShields then reentered the room to

question defendant. At around 4:00 p.m., in the presence of the

mentor and Lieutenant DeShields, but not his mother, defendant

admitted his involvement in the incident. Defendant claimed he

did not know there was going to be a robbery or a murder that

day, that he was not armed and did not pull the trigger, that he

realized Biggins had a gun when he got into the car, that

Biggins was the shooter, and that he entered the minimart at

Biggins' direction. The questioning lasted four hours,

beginning at approximately 1:15 p.m. and concluding at 5:15 p.m.

Events between Statements

Following the March 10th statement, defendant's mother

retained an attorney, James Leonard, to represent defendant.

Between March 10 and March 20, 2007, defendant attended a

juvenile court appearance, where he met Mr. Leonard for the

first time. Defendant testified that Mr. Leonard told him that

he was representing him and that the hearing only involved

defendant being read his charges. Mr. Leonard did not discuss

the case with defendant.

Defendant next saw Mr. Leonard on March 19, 2007 at the

prosecutor's office after Mr. Leonard arranged for him to make a

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statement. Defendant's mother was not present, and he refused

to make a statement because he wanted her to be there. Mr.

Leonard rescheduled the interview for March 20, 2007.

March 20, 2007 Statement

Defendant was brought to the prosecutor's office by

Sergeant Michael Fadden. Before the interview began, defendant

was given an opportunity to speak with his mother, Mr. Leonard,

and the family friend, who were all present.

Defendant's mother was informed of defendant's

constitutional rights and that she had a right to be present

during questioning. Defendant's mother signed a form

authorizing defendant to speak with investigators and answer

questions outside her presence. The form provided, in pertinent

part, "I authorize this questioning to take place outside of my

presence provided either [defendant's] attorney, James Leonard

Jr., or his [mentor] is present." The mentor also signed a form

acknowledging that, at defendant's mother's request, he would

take her place during questioning. The form provided, "I have

been advised of [defendant's] and [defendant's mother's] rights

by both investigators and James Leonard and understand these

rights."

Defendant was again read his Miranda rights and signed a

form waiving those rights in the presence of Mr. Leonard and the

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mentor. Defendant was asked if he had any questions concerning

his rights, to which he replied "Ah, no." Sergeant Fadden

testified that defendant appeared cognizant of what was going

on, understood Fadden's questions, and answered questions

appropriately.

Defendant was then interviewed by Sergeant Fadden and

Lieutenant DeShields. Mr. Leonard and the family friend were

present in the interview room, and defendant's mother was at the

prosecutor's office in a separate room, approximately thirty

feet away.

For the first hour, defendant was questioned almost

exclusively by Sergeant Fadden, and the questioning was

conducted in a conversational tone. Mr. Leonard did not speak

much during the course of the interview, and the family friend

interjected at only a few points. About an hour into the

interview, defendant was given food and a drink.

The questioning lasted approximately two hours, from 2:18

p.m. to 4:22 p.m. Defendant explained that he got into a car

with Salaam and Biggins; Biggins and Salaam had guns; the driver

needed gas money; they were driven to a nearby hotel and walked

to the gas station; Salaam approached one of the gas station

attendants outside the minimart, while defendant and Biggins

entered the minimart; Biggins pointed a gun at the cashier and

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told him to "give up the money"; the cashier tried to fight with

Biggins; shots were fired; Biggins told defendant to grab his

gun after it fell to the ground; defendant grabbed the gun; and

all three ran off and got back into the car.

On February 6, 2008, a grand jury sitting in Atlantic

County indicted defendant, Biggins, Salaam, McCrosson, and Hart.

Defendant was charged with first-degree felony murder (count

one), N.J.S.A. 2C:11-3(a)(3); first-degree robbery (counts two,

three, and four), N.J.S.A. 2C:15-1; second-degree conspiracy to

commit robbery (count five), N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5

2; second-degree aggravated assault (count six), N.J.S.A. 2C:12

1(b)(1); second-degree possession of a firearm for an unlawful

purpose (count seven), N.J.S.A. 2C:39-4(a); third-degree

unlawful possession of a handgun (count eight), N.J.S.A. 2C:39

5(b); and third-degree hindering apprehension (count nine),

N.J.S.A. 2C:29-3(b)(1).

Defendant moved to suppress the March 10th and March 20th

statements. The judge held a hearing which began in March and

continued through July 2011. At the hearing, the family friend

testified that Mr. Leonard told him before the March 20th

questioning that he had been in touch with the prosecutor's

office about the possibility of a plea agreement, and "if

[defendant] would speak now, it would be better for

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later . . . ." Sergeant Fadden testified that, to his

knowledge, no discussions of a plea agreement had occurred and

defendant was making the statement "[o]n the advice of counsel."

Defendant testified that he was sixteen years old and in

tenth grade at the time he made his statements. Defendant

claimed he did not understand his Miranda rights at the time,

but was aware that he did not have to give a statement. He

claimed he gave the statement "in furtherance of [a] plea offer"

and Mr. Leonard told him the charges ranged "from five to 12

years," but that "he could probably get [defendant] seven."

Initial ruling

The judge initially denied defendant's motion to suppress

the entire March 20th statement as well as any statements made

before 2:45 p.m. on March 10th, when defendant's mother

requested counsel. The judge found that defendant's mother's

request for counsel should have been honored. As to the

remainder of defendant's statements, the judge found that

defendant "understood the Miranda rights he was waiving."

The judge found defendant to be of normal intelligence, and

rejected testimony by defendant and his mother that he was of

below average intelligence and did not understand the Miranda

rights he was waiving. The court found the testimony of

Detective Graham, Sergeant Fadden, and Lieutenant DeShields to

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be credible, and determined that in both interviews, the

"interaction of police with the defendant, his mother, his

mentor and his attorney was completely above-board and fair."

Although the judge found defendant's mother's efforts to

convince defendant to confess during the March 10th statement an

"area of concern," when considering the totality of the

circumstances, the judge found defendant knowingly,

intelligently, and voluntarily waived his rights for any

statements made before 2:45 p.m.

The judge admitted the entire March 20th statement, finding

that defendant knowingly, voluntarily, and intelligently waived

his Miranda rights, and noting that, during that statement,

defendant's attorney and mentor were both present and that

defendant's mother was "available for consultation at any time."

The judge further found that, during the March 20th statement,

defendant was "again advised of his rights" and that "his

attorney was free to confer with [defendant] and in fact did

confer with him on numerous occasions during breaks in the

questioning." The judge considered the totality of the

circumstances, "including defendant's age and ability to

understand the Constitutional rights he was waiving," as well as

the lack of mental or physical coercion during questioning, and

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found that defendant "gave a knowing, intelligent and voluntary

waiver of his Miranda rights."

November 30, 2011 Psychological Report

Defendant subsequently underwent a psychological evaluation

to assess, among other things, his ability to waive his Miranda

rights. Defendant was diagnosed with mild mental retardation; a

learning disability, particularly in the contexts of reading and

reading comprehension; generalized anxiety disorder; post

traumatic stress disorder; attention deficit hyperactivity

disorder; and personality disorder, not otherwise specified,

with paranoid, passive-dependent, immature, and antisocial

features.

The psychologist noted that defendant has a full scale IQ

of 66, which places him in the first percentile of the

population, within the range described as mild mental

retardation. The report revealed that defendant's highest level

of education was ninth grade, he was in "special education"

classes for all subjects, and his "reading [and] sentence

comprehension . . . are even lower than what would be predicted

by his IQ scores[.]" Defendant's reading and sentence

comprehension scores were similar to that of a child between the

first and third grades.

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In the Miranda context, even at the time of his evaluation

(after his statements), defendant could not read the word

"remain," "afford," or "appointed." Defendant did not know what

the word "right" meant at the time of his statements, but he now

understands what it means. The psychologist concluded that

defendant understood the Miranda rights at the time of his

evaluation, but that he did not understand them during the time

of his interview and "did not understand that the right to

remain silent meant that he did not have to talk." Defendant

reported to the psychologist that he told police that he

understood things that he actually did not understand, and that

this was "in part because of his reading and comprehension

problems, and in part because he was scared and just wanted to

go home." The report concluded "to a reasonable degree of

psychological certainty" that defendant "would have been unable

to understand his rights at the time of his interrogation."

Subsequent ruling on defendant's motion to suppress

Following this report, defendant sought reconsideration of

the ruling on his motion to suppress. On June 5, 2011, the

judge granted the motion and found that the entirety of

defendant's March 10th statement should be suppressed in "light

of defendant's limited IQ and reading comprehension abilities."

In particular, the judge noted that the psychologist's

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"indication that the Defendant still cannot define the words

'remain,' 'afford,' and 'appointed,' adequately demonstrate that

the Defendant's statements of March 10, 2007 were not knowing

and voluntarily made in the totality of the circumstances."

However, the judge did not suppress defendant's March 20th

statement, and found that it appeared to be knowing, voluntary,

and intelligent. The judge reasoned that, during his March 10th

statement, defendant did not have the benefit of counsel and

there was no indication that his Miranda rights were thoroughly

explained to him. The judge explained that "[g]iven the

Defendant's youth, low IQ, and limited reading comprehension,

additional safeguards were required to ensure that the

Defendant's statement was knowing, voluntary, and intelligent,"

and that, on March 20, 2007, "those safeguards were in place."

The judge noted that "[t]en days had passed since the prior

interrogation," and that the March 20th "statement was made in

the presence of [defendant's] attorney, his mentor, and with the

benefit of legal counsel."

II. A.

Defendant now argues that the March 20th statement should

have been suppressed because he did not knowingly,

intelligently, and voluntarily waive his Miranda rights, and the

second statement "was merely a confirmation of the first."

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In our review of a decision on a motion to suppress, we

must uphold the factual findings underlying the trial judge's

decision so long as those findings are supported by sufficient

credible evidence in the record. State v. Rockford, 213 N.J.

424, 440 (2013). We give deference to the trial judge's ability

to hear and see the witnesses and to have a feel of the case,

which a reviewing court cannot enjoy. Ibid. We review a trial

court's legal conclusions de novo. Ibid.

A juvenile defendant must knowingly, voluntarily, and

intelligently waive his Miranda rights for his custodial

statements to law enforcement to be admissible. State v. Presha,

163 N.J. 304, 313 (2000). The burden is on the State to prove

the validity of a Miranda waiver beyond a reasonable doubt.

State v. O'Neill, 193 N.J. 148, 168 n.12 (2007). The State must

prove that a suspect's "waiver was knowing, intelligent, and

voluntary in light of all the circumstances." Presha, supra, 163

N.J. at 313.

The role of a parent in the context of a juvenile

interrogation takes on "special significance" because "the

parent serves as [an] advisor to the juvenile" and "can offer a

measure of support in the unfamiliar setting of the police

station." Id. at 314.

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In support of his claim that he did not knowingly,

intelligently, and voluntarily waive his Miranda rights,

defendant emphasizes that his mother was not physically present

for the statement; the mentor "may have exacerbated" defendant's

confession and his presence did "not vitiate the parent's

(voluntary) absence"; the presence of counsel had "little impact

upon . . . the validity of his waiver"; and defendant's

"numerous psychological issues" along with his lack of

familiarity with the justice system.

The voluntary absence of defendant's mother during

questioning is not dispositive of defendant's Miranda waiver.

Indeed, the Court in Presha noted that if the parent "declines

to accompany the juvenile, the police must conduct the

interrogation with 'the utmost fairness and in accordance with

the highest standards of due process and fundamental fairness.'"

Id. at 317 (quoting In re S.H., 61 N.J. 108, 115 (1972)).

"[W]hether a parent or legal guardian is willing to be present

for [a] confession obviously must be considered from the adult's

perspective." State ex rel. Q.N., 179 N.J. 165, 174 (2004). In

Q.N., the Court held a twelve-year-old juvenile's statements to

be voluntary where his mother "knew of her right to be present

with her son and knew that, if she left [the room] as she

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eventually did, she could return at any time or could end the

interview." Ibid.

Defendant's reliance on State ex rel. A.S., 203 N.J. 131

(2010), is misplaced because the mother in that case was present

during the interrogation and "badgering" the defendant into

confessing. Id. at 136. The Court held the confession

inadmissible because defendant's mother was also the victim's

grandmother, and therefore the mother was not "assist[ing] the

child in the exercise of . . . her constitutional rights" but

was "provid[ing] the police with an assistant." Id. at 137.

This case is similar to the voluntary waiver in Q.N.

because defendant's mother signed a form acknowledging that she

understood that she had the right to be present during

defendant's questioning and was waiving that right after

consulting with defendant's attorney. Although defendant's

mother strongly urged him to cooperate with the police on March

10th, that statement is not at issue in this case. Defendant's

mother testified that, before the March 20th statement, she "was

listening to [defendant's attorney]" when she signed the form.

She acknowledged wanting the family friend to be present

"because [she] was a nervous wreck" and "was crying." In light

of these facts, defendant's mother was voluntarily absent from

the interview. Moreover, our review of the video of defendant's

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March 20th statement confirms the judge's findings that the

"interaction of police with the defendant, his mother, his

mentor and his attorney was completely above-board and fair."

We also reject defendant's arguments that the presence of

the family friend "exacerbated" defendant's confession and was

inappropriate given the mother's voluntary absence from the

interview. A review of the March 20th video clearly shows the

family friend remained largely silent and only interjected at

times to ensure that defendant understood what the detectives

were asking, and to clarify for detectives what defendant was

saying. It is not disputed that the family friend was a mentor

to defendant and that the mother wanted him to be present during

the interview. We are satisfied that his presence did not

interfere with defendant's ability to knowingly, intelligently,

and voluntarily waive his Miranda rights.

Defendant also argues that the presence of counsel had

little impact on his ability to knowingly and intelligently

waive his rights, and that counsel's presence should not "wash

away the defendant's personal deficits and vulnerabilities."

After he was retained, defendant's attorney decided that

defendant would be best served by providing a second statement

to police in an effort to facilitate a plea deal. Given the

fact that a co-defendant already decided to cooperate and

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testify against defendant, that was not an unreasonable

strategy.

Although defendant's I.Q. is marginal, it is not

dispositive in determining whether he understood his Miranda

rights. It is "merely a factor in the totality of the

circumstances to be considered." State v. Carpenter, 268 N.J.

Super. 378, 385 (App. Div. 1993) (finding illiterate twenty-two

year old defendant with an I.Q. of 71 and no criminal record,

who attended special education classes while in school,

understood and waived his Miranda rights), certif. denied, 135

N.J. 467 (1994). Under the totality of the circumstances,

defendant knowingly, intelligently, and voluntarily waived his

Miranda rights during the March 20th statement. The statement

was taken ten days after defendant's initial questioning.

Defendant was only questioned for two hours in his March 20th

statement, as opposed to the four-hour interrogation that he

endured on March 10th. Defendant was informed of his rights

before both the March 10th and March 20th statements, and

executed a signed waiver agreeing to speak with police on both

occasions. Although defendant was a sixteen-year-old juvenile

with a low I.Q., he had his mother, his attorney, and his mentor

present on March 20th, who were all advised of defendant's

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rights. Further, the questioning was conducted in a

conversational tone, and was not coercive.

Next, defendant argues that his March 20th statement should

be suppressed because it was "the inevitable product of the

improper first statement." In considering the admissibility of

a second statement, we must examine whether it was "the product

of unconstitutional police conduct tainting the first[.]" State

v. Faucette, 439 N.J. Super. 241, 266 (App. Div.) certif.

denied, 221 N.J. 992 (2015). "Factors relevant to this

determination include the time between confessions, any

intervening circumstances, whether there was a change in place,

whether defendant received an adequate warning of his rights,

whether the defendant initiated the second confession, the

effect of his having previously made a confession, and the

'purpose and flagrancy of police misconduct.'" State v. Hartley,

103 N.J. 252, 283 (1986) (quoting Brown v. Illinois, 442 U.S.

540, 603-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 427

(1975)).

We are satisfied that defendant's March 20th statement was

separate and distinct from the March 10th statement.

Fundamental to our conclusion is the fact that defendant's

counsel initiated the March 20th statement, whereas the March

10th statement was initiated by police. Unlike the March 10th

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statement where police failed to end their questioning after

defendant's mother requested an attorney, there was no police

misconduct in the March 20th statement. Moreover, the

interviews were given ten days apart and were conducted by

different law enforcement personnel.

The circumstances surrounding the second statement were

dramatically different from the first. In the March 10th

statement, defendant was vomiting, crying, and being yelled at

by his mother. In the March 20th statement, the tone was

conversational, defendant's mother was not present, and

defendant was accompanied by his attorney and his mentor.

Defendant testified he knew he did not have to provide the

second statement. Indeed, on March 19th, he refused to proceed

without his mother, even though his attorney was present.

Employing the Hartley criteria, the second statement was not the

product of the first, and any taint from the first statement was

attenuated by the ten-day gap between statements and because

defendant had the assistance of counsel. Ibid.

B.

Defendant pled guilty to first-degree aggravated

manslaughter, first-degree robbery, and third-degree hindering

apprehension. Defendant was sentenced in accordance with the

terms of his plea agreement to a twenty-five-year term. The

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judge applied aggravating factors three, risk that defendant

will commit another offense, N.J.S.A. 2C:44-1(a)(3), and nine,

need for deterring the defendant and others from violating the

law, N.J.S.A. 2C:44-1(a)(9). The judge also found mitigating

factor seven, no history of prior delinquency or criminal

activity, applied. N.J.S.A. 2C:44-1(b)(7). Defendant now claims

that the judge erred by "overvaluing" the aggravating factors,

and "undervaluing" the mitigating factor.

"A sentence imposed pursuant to a plea agreement is

presumed to be reasonable because a defendant voluntarily

'[waived] . . . his right to a trial in return for the reduction

or dismissal of certain charges, recommendations as to sentence

and the like.'" State v. Fuentes, 217 N.J. 57, 70-71 (2014)

(quoting State v. Davis, 175 N.J. Super. 130, 140 (App. Div.

1980)). "A judge's sentencing analysis is a fact-sensitive

inquiry[.]" State v. Jaffe, 220 N.J. 114, 116 (2014). We must

review the record presented before the trial court to determine

if its sentence was "based upon findings of fact that are

grounded in competent, reasonably credible evidence." State v.

Roth, 95 N.J. 334, 363 (1984).

In applying aggravating factor three, the judge noted

defendant's "lack of acceptance and responsibility," which was

evidenced by his "attempts to place responsibility on his

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friends and co-defendants who were riding around looking for a

place to rob" and his "history of chronic substance abuse."

The finding of any factor must be supported by competent,

credible evidence in the record. State v. Case, 220 N.J. 49, 64

(2014). "Speculation and suspicion must not infect the

sentencing process; simply put, the finding of aggravating or

mitigating factors must be based on evidence." Ibid.

Defendant's version of the offense as provided to the

police in the March 20th interview and to probation in the pre

sentence report was that he did not participate in the planning

of the robbery, he was not armed, and perforce, he was not one

of the shooters.

In response, the State presented evidence that defendant

had an active role in the planning and commission of the

robbery. Biggins stated that the robbery plan was hatched

earlier that day when all three men were together at his house.

McCrosson's statement to police and her testimony at Salaam's

trial indicated that defendant actually provided turn-by-turn

directions to the Absecon Blvd. station after other targeted

stations were found to be closed. Finally, Biggins stated that

all three men were armed during the robbery and, when they

returned to his house afterward, defendant and Salaam both gave

him their guns for safekeeping. This testimony finds peripheral

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corroboration in ballistics analysis of the crime scene, which

confirmed that a third unidentified firearm had been used during

the robbery.

Thus, the judge's finding that defendant minimized his role

in the offense and failed to accept full responsibility is

adequately supported in the record.

The judge gave "great weight" to factor nine and noted the

need for general deterrence against defendants who violate the

law "in such a violent and deadly fashion." We agree that the

senseless murder of the owner of a service station during a

robbery requires strong general deterrence.

By contrast, the judge gave mitigating factor seven,

defendant's lack of a criminal record, "some weight" because

"[u]nfortunately, the defendant chose from among the most

serious felony offenses for his first foray into criminality."

The sentencing range for the crime to which defendant pled

guilty, aggravated manslaughter, is ten to thirty years.

N.J.S.A. 2C:11-4(c). The crime that he avoided being tried for,

first-degree murder, carried with it a minimum of thirty years

without parole and the possibility of a life sentence. N.J.S.A.

2C:11-3(b)(1).

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The sentencing judge relied on these facts and on

defendant's plea agreement in concluding that the sentence he

imposed was reasonable and in the interest of justice.

Defendant also argues that the judge should have applied

mitigating factor twelve, willingness of the defendant to

cooperate with law enforcement authorities. N.J.S.A. 2C:44

1(b)(12). It is questionable whether a defendant's confession,

standing alone, qualifies as "cooperation" within the intent of

mitigating factor twelve where a defendant did not identify

another perpetrator or assist in solving other crimes. State v.

Read, 397 N.J. Super. 598, 613 (App. Div.) certif. denied, 196

N.J. 85 (2008).

There is no evidence that defendant's confession benefitted

the State beyond implicating himself the crime. By the time he

entered his guilty plea, all other defendants had been convicted

either by plea or trial. In fact, a jury panel had been

summoned for defendant's trial when he agreed to plead guilty.

Biggins was prepared to testify against defendant had he gone to

trial, and both Hart and McCrosson had identified defendant and

his co-defendants as participants before defendant confessed.

We are satisfied that defendant's confession does not warrant an

application of mitigating factor twelve and there was sufficient

A-2631-12T4 27

credible evidence in the record for the judge to apply the

aggravating and mitigating factors at issue.

Finally, defendant argues that a sentencing reduction or

remand is warranted because his twenty-five year sentence is

disproportionate to the twelve-year sentence received by co

defendant Biggins.

"Disparity may invalidate an otherwise sound and lawful

sentence." State v. Roach, 146 N.J. 208, 232 (1996). In

comparing the sentences of two co-defendants, "there is an

obvious sense of unfairness in having disparate punishments for

equally culpable perpetrators." Ibid. (quoting State v. Hubbard,

176 N.J. Super. 174, 175 (Resentencing Panel 1980)). However, a

"sentence of one defendant not otherwise excessive is not

erroneous merely because a co-defendant's sentence is lighter."

Ibid. (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). "The

question therefore is whether the disparity is justifiable or

unjustifiable." Id. at 233.

In Roach, the Court remanded for a determination on whether

a thirty-year disparity in sentencing was justifiable where the

defendant and two co-defendants "were all found guilty of

identical charges, had similar criminal histories, and were

assessed the same aggravating and mitigating factors." Id. at

A-2631-12T4 28

229-30 (footnote omitted). The Court directed the trial judge

to:

determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria. The court should then inquire into the basis of the sentences imposed on the other defendant. It should further consider the length, terms, and conditions of the sentence imposed on the co-defendant. If the co-defendant is sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing the defendant in order to avoid excessive disparity.

[Id. at 233.]

Under Roach, because defendant and Biggins were convicted

of two different crimes, there was no need for the sentencing

court to address the disparity.

On December 22, 2008, Biggins pled guilty to three counts

of first-degree robbery and was sentenced to twelve years in

prison. On January 26, 2009, Hart and McCrosson pled guilty to

conspiracy to possess a controlled dangerous substance and

hindering apprehension, and were sentenced to eight years in

prison. Co-defendant Salaam proceeded to trial and, in May

2009, was found guilty of two counts of first-degree robbery,

but the jury was hung on the charges of felony murder and a

third count of first-degree robbery. On August 23, 2010, Salaam

entered a guilty plea to felony murder, and was subsequently

A-2631-12T4 29

sentenced to forty years in prison. These convictions all

differ from defendant's negotiated conviction for first-degree

aggravated manslaughter.

Defendant pled guilty almost four years after Biggins, who

agreed to cooperate and testify in any proceedings as part of

his plea agreement. The State is free to offer "substantial

benefits" to encourage a guilty plea. Corbitt v. New Jersey, 439

U.S. 212, 219, 99 S. Ct. 492, 497, 58 L. Ed. 2d 466, 474 (1978).

Where, as here, "the defendant receives the exact sentence

that he bargained for, an appellate court will not upset the

sentence if it is 'consistent with the [sentenci]

Guidelines[.]'"

Defendant's twenty five year sentence for aggravated manslaughter was imposed

pursuant to a plea agreement, and adequately differed from Biggins' twelve-year sentence for first-degree robbery. The disparate crimes of conviction and the cooperation condition in Biggins' agreement justify the sentencing disparity in this case.



Affirmed.