NOT FOR PUBLICATION WITHOUT THE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-3892-18






                   Submitted February 1, 2021 – Decided February 19, 2021

                   Before Judges Mayer and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Burlington County, Indictment No. 17-09-

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Monique Moyse, Designated Counsel, on the

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Nicole Handy, Assistant
                   Prosecutor, of counsel and on the brief).

      Defendant appeals from a February 22, 2019 order denying his petition

for post-conviction relief (PCR) without an evidentiary hearing. We affirm for

the reasons expressed in the thorough written decision issued by Judge Mark P.


      Defendant was charged with first-degree attempted murder, N.J.S.A.

2C:5-1(a)(1) and 2C:11-3(a)(1) (count one); third-degree endangering an injured

victim, N.J.S.A. 2C:12-1.2(a) (count two); third-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); fourth-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); fourth-

degree obstruction, N.J.S.A. 2C:29-1(a) (count five); and third-degree

hindering, N.J.S.A. 2C:29-3(b)(1) (count six). He pleaded guilty to count one

as amended to second-degree assault. Two weeks after his guilty plea, defendant

was sentenced as a third-degree offender to a three-year term of imprisonment

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. All remaining counts

were dismissed.

      Defendant did not file a direct appeal. Two months after sentencing,

defendant filed a pro se PCR petition. He was assigned counsel, and counsel

filed an amended petition and supporting brief. In his PCR petition, defendant

argued he was interrogated by detectives despite repeated statements he wished

to consult with an attorney. Based on the detectives' interrogation absent the

presence of counsel, defendant claimed his trial counsel should have filed a

motion to suppress, and the failure to do so constituted ineffective assistance of

counsel. Defendant also asserted his trial counsel failed to properly advocate on

his behalf at the sentencing hearing.

      Judge Tarantino heard the arguments of counsel on the PCR petition. In

denying the PCR petition, the judge concluded defendant failed to satisfy either

prong of the Strickland/Fritz 1 test to establish ineffective assistance of counsel.

The judge determined nothing defendant claimed should have been done by his

trial counsel would have resulted in a lesser sentence, and defendant received

the exact sentence as negotiated, "which was extremely favorable to him."

      In his Strickland/Fritz analysis, the judge also rejected defendant's

contention his trial counsel failed to present certain mitigating factors during

sentencing. Defendant claimed trial counsel should have raised mitigating

factors three, four, eight, and eleven.

  Strickland v. Washington, 

466 U.S. 668

, 686 (1984); State v. Fritz, 

105 N.J. 42

, 58 (1987).
      Regarding mitigating factor three, defendant acted under a strong

provocation, this factor was inapplicable based on the victim's statement that

defendant started the fight and possessed the knife the entire time.

      Judge Tarantino rejected mitigating factor four, defendant's drug

dependency and alcohol abuse, in excusing defendant's actions.          He noted

substance abuse issues may be used to explain why defendant acted a certain

way but could not "be used to justify or excuse a defendant's actions." Thus, the

judge found the assertion of mitigating factor four by trial counsel "would not

have made a difference at sentencing."

      Regarding mitigating factor eight, defendant's conduct is unlikely to recur,

there was no evidence to support application of this factor. Defendant failed to

demonstrate he would never become angry enough to assault someone in the


          Nor was mitigating factor eleven, imprisonment causing a hardship to

defendant's children, applicable. Defendant's children were not in his custody

at the time of the crime or sentencing.         Therefore, defendant failed to

demonstrate any harm would be suffered by the children if he was incarcerated.

      Even if these mitigating factors had been presented by trial counsel, Judge

Tarantino held the outcome would not have been different "because there [were]

not enough mitigating factors in this case to outweigh the aggravating factors."

In addition, the judge noted defense counsel negotiated an extremely favorable

plea that included significantly less jail time and dismissal of all but one charge.

Accordingly, the judge found defendant's trial counsel was not ineffective in

failing to present these four mitigating factors at sentencing.

       Regarding defendant's claim his trial counsel was ineffective in failing to

file a suppression motion, Judge Tarantino found this argument was "without

merit." He concluded defendant failed to demonstrate "the proceedings against

him would have ended differently" if such a motion had been filed. Judge

Tarantino also determined a suppression "motion would not have succeeded at

trial" because, consistent with State v. Alston, 

204 N.J. 614

, 620-21 (2011),

ambiguous statements by a subject regarding a lawyer do not require the police

to cease an interrogation. The judge found defendant continued to "re-initiate

conversation with the officer about the events" despite the officer's repeated

statements that she had to review the Miranda2 rights and determine if defendant

wanted to waive his rights or if he wanted an attorney before she could speak

with him. Based on these facts in the record, the judge held "a motion to

    Miranda v. Arizona, 

384 U.S. 436

suppress would not have succeeded, and therefore [defendant] was not


      On appeal, defendant raises the following argument:

               [DEFENDANT]   IS    ENTITLED  TO   AN
               FOR   FAILING  TO    FILE  A PRETRIAL
               SUPPRESSION MOTION.

      Having reviewed the record, we affirm for the reasons expressed by Judge

Tarantino. We add the following comment.

      During a police interrogation, if a person makes "a request, 'however

ambiguous,' to terminate questioning or to have counsel present[, it] must be

diligently honored." State v. Hartley, 

103 N.J. 252

, 263 (1986) (quoting State

v. Kennedy, 

97 N.J. 278

, 288 (1984)). If the police are unsure if a suspect

invoked his or her right to counsel, the police must either "(1) terminate the

interrogation or (2) ask only those questions necessary to clarify whether the

defendant intended to invoke his [or her] right to silence." State v. S.S., 

229 N.J. 360

, 383 (2017) (citing, State v. Johnson, 

120 N.J. 263

, 283-84 (1990)).

      In determining whether the right to counsel was invoked, a court must

analyze "the totality of the circumstances, including consideration of the

suspect's words and conduct." State v. Maltese, 

222 N.J. 525

, 545 (2015) (citing

State v. Diaz-Bridges, 

208 N.J. 544

, 568-69 (2012)). "The . . . statement [must

be] evaluated in the full context in which [it was] made . . . ."

Ibid. (citing State v.


131 N.J. 176

, 231-33 (1993)).

      Applying these principles here, we discern no error in Judge Tarantino's

determination that a motion to suppress would not have succeeded. Defendant's

statements regarding his wish to speak to a lawyer and also speak to the

detectives were ambiguous, and the officers' continued discussions with

defendant simply sought to clarify defendant's words.           Once "the accused

himself initiates further communication, exchanges, or conversations with the

police," an accused has waived the right to counsel and an interrogation may

continue. Edwards v. Arizona, 

451 U.S. 477

, 484-85 (1981).

      Defendant's claim he unambiguously requested an attorney, compelling

the cessation of the interrogation, is belied by the transcript of his statement to

the police. Defendant clearly equivocated in his desire to speak with an attorney

and his need to speak with the detectives about the events. Defendant vacillated

several times, stating he wished to speak with an attorney while at the same time

expressing his desire to speak with the detectives. Each time, the detectives

explained defendant had the right to speak with an attorney but could waive that

right. Based on defendant's conflicting statements, the detectives re-read the

Miranda card to defendant. Defendant repeated he wanted an attorney but then

continued to engage in discussions with the detectives. Eventually, defendant

confirmed he wished to speak to the detectives without the presence of an

attorney and voluntarily waived his Miranda rights. Thereafter, defendant never

invoked his right to remain silent or requested an attorney.

      Under the totality of the circumstances, we are satisfied defendant

voluntarily engaged in substantive discussions with the detectives regarding the

incident. The detectives' questions were part of their effort to clarify defendant's

ambiguous and confusing responses about speaking to an attorney and

continuing to talk about the events with the detectives.              Under these

circumstances, Judge Tarantino properly ruled defendant's statements were


      Because we agree with Judge Tarantino that defendant failed to satisfy

either prong of the Strickland/Fritz analysis, there was no requirement he

conduct an evidentiary hearing. State v. Preciose, 

129 N.J. 451

, 462 (1992).

      The remainder of defendant's arguments are without sufficient merit to

warrant further discussion in a written opinion. R. 2:11-3(e)(2).



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