State v. Prior

1

STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY D. PRIOR, Defendant-Appellant.

No. A-0803-20

Superior Court of New Jersey, Appellate Division

February 29, 2024

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.

Argued January 30, 2024

On appeal from the Superior Court of New Jersey, Law Division Bergen County, Indictment No. 18-08-0821.

Morgan A. Birck argued the cause for appellant (Joseph A. Krakora Public Defender, attorney; Morgan A. Birck, Assistant Deputy Public Defender, of counsel and on the briefs).

Deepa S. Jacobs argued the cause for respondent (Mark Musella Bergen County Prosecutor, attorney; William P. Miller, Assistant Prosecutor, of counsel and on the brief; Catherine A. Foddai, Legal Assistant, on the brief).

Before Judges Mayer, Enright and Paganelli.

PER CURIAM

Defendant Gregory D. Prior appeals from his convictions related to crimes occurring on two separate dates-just three days apart. He also appeals from the sentences imposed. We affirm as to the convictions, and remand to the trial court to consider the fairness of the sentence imposed consistent with State v. Torres^[1] and to amend the judgment of conviction vacating defendant's payment of restitution.

We recite the facts from the suppression hearing and trial testimony. On May 24, 2018, defendant stole a Jeep in Paramus. Subsequently, while at a supermarket in Paramus defendant grabbed a woman's pocketbook and fled.

On May 27, 2018, around 10:30 a.m., Michelle Fleites went to retrieve her car keys from her purse after shopping at an Acme supermarket in Fort Lee. While searching for her keys, Fleites noticed a white male in his fifties or sixties with light hair, wearing baggy jeans and a baggy sweatshirt, looking at her. Fleites thought the man was going into the supermarket. Instead, the man snatched her purse and fled toward a white sedan. Fleites chased the man in an effort to recover her purse, which contained credit cards, personal identification, and cash in an amount between $170 to $200.

The man opened the door to enter the white sedan. However, before the man could close the car door, Fleites "wedged" herself between him and the door. While Fleites struggled to retrieve her purse, the man grabbed items from the purse and threw them toward the passenger side of the car, scattering the items on the floor. When the man started the car, Fleites backed away to avoid being driven off with the car.

Fleites then ran over to another man standing nearby. The man, James Chung, heard Fleites scream, saw her run toward a white car, and struggle with a man inside the car. Chung identified the car as a late-model white Honda Civic sedan. Chung described the man driving the car as an older white male.

Fleites asked Chung to call 9-1-1. Chung did so, and provided the car's license plate number to the dispatcher. Video footage recovered from the Acme supermarket and shown at trial captured the encounter between Fleites and the suspect. The video showed the suspect wearing a sweatshirt with distinctive striped markings on the sleeves.

At approximately 10:27 a.m. on May 27, 2018, a white Honda sedan was reported to the police as stolen. At 10:44 a.m., Fleites reported the theft of her purse to the police and gave a detailed description of the suspect. At 10:48 a.m., New Jersey State Trooper Richard Musso received a call that a white Honda sedan had been stolen, was travelling on the New Jersey Turnpike, and was allegedly involved in a robbery in Fort Lee. The white Honda sedan was tracked through a cell phone still in the car, which belonged to the owner of the stolen car.

Around 11:00 a.m., Musso also received notice that the stolen white sedan had been tracked to the Vince Lombardi Service Area (service area) on the New Jersey Turnpike, and the suspect in the Fort Lee supermarket robbery was an unshaven white male in his fifties wearing a blue sweatshirt with stripes.

When Musso arrived at the service area at 11:02 a.m., he found the white Honda sedan with the identified license plate number parked in front of the convenience store. Musso maneuvered his patrol car behind the sedan to prevent the vehicle from leaving the parking lot. After another trooper arrived, Musso looked through the window of the white Honda sedan and noticed a purse on the passenger-side floor.

Musso entered the service area's convenience store and saw four people inside.^[2] Only one person inside the convenience store fit the suspect's description.

While inside the convenience store, Musso asked to speak with defendant. Musso asked where defendant lived, and defendant responded he was homeless. This response prompted Musso to inquire how defendant travelled to the service area. Defendant simply shrugged.

Based on defendant's reaction, Musso assumed defendant did not want to continue speaking. As a result, Musso handcuffed defendant, advised him of his Miranda^[3] rights, and placed him in the back seat of the patrol car.

Inside the patrol car, defendant admitted to Musso that he stole the white Honda sedan. However, there was no recording of defendant's conversation with Musso because the equipment in the patrol car malfunctioned. Musso reportedly did not realize the malfunction until much later.

In searching defendant, Musso found a cigarette box containing $197 in cash in defendant's right front pant pocket. Lieutenant Edward Young of the Fort Lee Police Department, who also responded to the service area, testified a search warrant for the car found a purse matching the description given by Fleites, a cell phone, and a wallet containing Fleites's driver's license.

Video footage from the service area, which was played during trial, showed a white car parking across from the convenience store. In the video, an individual fitting defendant's description and wearing the same distinctive clothing-a dark sweatshirt with distinctive stripes on the sleeves-is depicted walking from the direction of the white car. The video did not clearly show the individual exiting the white car.

In August 2018, a Bergen County grand jury returned an indictment against defendant for the following charges occurring on May 24, 2018: third-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one); third-degree theft by unlawful taking of movable property in connection with a stolen Jeep, N.J.S.A. 2C:20-3(a) (count two); and second-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count three). Defendant was also indicted on the following charges occurring on May 27, 2018: third-degree theft receipt of stolen property, N.J.S.A. 2C:20-7(a) (count four); and second-degree robbery, N.J.S.A. 2C:15-1 (count five).

Defendant filed pretrial motions to suppress his statement to Trooper Musso and sever the charges into separate trials based on the dates of the alleged offenses. The judge granted defendant's motion to sever the charges.

The judge conducted a hearing on defendant's suppression motion. At the suppression hearing, and consistent with his trial testimony, Musso described his arrival at the service area and encounter with defendant. He testified that after handcuffing and placing defendant in his patrol car, Musso advised defendant of his Miranda rights.

Video footage from the dashboard camera of another police vehicle at the scene showed Musso consulting with his supervisor in the service area's parking lot. In reporting to his supervisor, Musso advised defendant was informed of his rights. Musso also told his supervisor defendant did not admit to stealing the car because "he had nothing to say."

Despite defendant stating he "had nothing to say," when Musso returned to his patrol car, Musso asked defendant why he stole the car. Defendant answered he stole the car because he was addicted to heroin and needed the money to buy drugs.

According to Musso, defendant did not appear to be under the influence of alcohol or drugs at the time. Nor did defendant appear confused regarding his rights. Musso further testified defendant acknowledged understanding his rights after receiving the Miranda warnings. However, because the recording equipment in Musso's patrol car malfunctioned, the conversation was not recorded. Musso explained he was unaware of the malfunction until he sought to retrieve the recording.

On July 24, 2019, the judge denied defendant's motion to suppress defendant's statement. The judge found Musso's account of the encounter credible. The judge noted Musso duly advised defendant of his rights prior to defendant's statement, and defendant acknowledged understanding those rights. Further, the judge concluded the encounter was brief, and there were no signs Musso forced or coerced defendant into making a statement. The judge also found no evidence of intoxication, fatigue, or other impairment prior to defendant making the statement. The judge concluded the State met its burden of demonstrating beyond a reasonable doubt that defendant's statement was knowing and voluntary.

Counts four and five, regarding the charges related to the events occurring on May 27, 2018, were tried first. The jury heard the State's case on those counts from October 9 through October 17, 2019. After hearing the testimony and considering the evidence, the jury convicted defendant on count four and a lesser-included offense of third-degree theft of a person on count five.

On October 22, 2019, defendant entered a guilty plea on count three to an amended charge of third-degree theft of a person subject to the State's agreement to dismiss the remaining two counts and recommend an extended-term nine-year...