SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1159-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VERLANCE BUDDINGTON,

Defendant-Appellant.

_______________________________

Submitted October 16, 2018 – Decided

Before Judges Hoffman and Suter.

On appeal from Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 15-05-0688.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Rochelle Watson, Assistant Deputy Public 

Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Svjetlana Tesic, Assistant Prosecutor, on 

the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

October 30, 2018
 2 A-1159-17T4

After pleading guilty to aggravated manslaughter pursuant to a plea 

agreement, and receiving a twenty-four-year prison term,

1 defendant filed this 

appeal, challenging the pretrial order permitting the admission of defendant's 

custodial statements for impeachment purposes, if he should testify. Defendant 

also appeals his sentence. We affirm.

On October 8, 2014, defendant shot and killed Hassan Byrd, who owed 

defendant $5000. After witness interviews and a surveillance video identified

defendant as the shooter, the police arrested defendant inside a friend's

apartment. The officers recovered a 9mm Springfield Armory XDM-9 handgun 

from the hallway outside of the apartment, inside of an empty diaper box. The 

shell casings recovered next to the victim were also 9mm. The police questioned 

defendant at the police station, where he confessed to the killing. 

While court-ordered evaluations found defendant competent to stand trial, 

they also indicated defendant lacked the capacity to properly waive his Miranda2

rights. The State therefore moved to admit defendant's custodial statement for 

impeachment purposes, should he testify at trial. The trial judge granted the 

 

1 Defendant's plea agreement provided for a recommended twenty-five-year 

prison term.

2 Miranda v. Arizona, 384 U.S. 436 (1966).
 3 A-1159-17T4

State's motion, finding "no evidence of police coercion," and that no "threats or 

promises were made to [d]efendant at any point during the interview." The 

judge noted the short length of the interrogation, and that "[w]hile [defendant's] 

intellectual disability is certainly a factor to be considered in the totality of the 

circumstances analysis, alone it is not determinative."

In his written opinion, the judge rejected defendant's argument that his 

custodial statements were involuntary, notwithstanding the fact that defendant 

did not make an intelligent and knowing waiver of his Miranda rights. 

Specifically, the judge cited to Colorado v. Connelly, 479 U.S. 157 (1986) and 

State v. Smith, 307 N.J. Super. 1 (App. Div. 1997) in reasoning that "police 

coercion is a necessary predicate to a finding that a statement is involuntary,"

and that in this case there was "no evidence of police coercion." The judge 

found no "threats or promises . . . made to [d]efendant at any point during the 

interview," along with the facts that the interview lasted approximately twenty 

minutes, and that the police were not aware of defendant's intellectual 

disabilities during the interrogation. Therefore, the judge held that defendant's 

custodial statements were admissible for impeachment purposes, should 

defendant testify at trial. 
 4 A-1159-17T4

On June 1, 2017, the court sentenced defendant to twenty-four years in 

prison subject to an eighty-five percent parole ineligibility period. This appeal 

followed. 

On appeal, defendant presents the following arguments:

POINT I

THE STATE, HAVING CONCEDED THAT 

DEFENDANT'S INTELLECTUAL AND 

COGNITIVE IMPAIRMENT RENDERED HIM 

INCOMPETENT TO WAIVE HIS MIRANDA 

RIGHTS, SHOULD NOT BE ALLOWED TO 

USE DEFENDANT'S STATEMENT FOR 

IMPEACHMENT PURPOSES DURING 

CROSS-EXAMINATION.

POINT II

DEFENDANT'S SENTENCE OF TWENTYFOUR YEARS FOR AGGRAVATED 

MANSLAUGHTER IS MANIFESTLY 

EXCESSIVE AND THE RESULT OF AN 

IMPROPER ASSESSMENT OF MITIGATING 

FACTOR FOUR.

I

We first address defendant's challenge to the trial court's ruling allowing 

the admission of his custodial statements for impeachment purposes. In 

reviewing a trial court's admission of a defendant's confession, our task is to 

"engage in a 'searching and critical' review of the record to ensure protection of 

a defendant's constitutional rights." State v. Maltese, 222 N.J. 525, 543 (2015) 
 5 A-1159-17T4

(quoting State v. Hreha, 217 N.J. 368, 381-82 (2014)). We defer to the factual 

findings of the trial court so long as those findings are supported by sufficient 

evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014) (citation 

omitted). Our review of the trial court's legal conclusions, however, is plenary. 

State v. Gandhi, 201 N.J. 161, 176 (2010) (citation omitted).

Defendant argues the trial judge erred in his determination that "evidence 

of police coercion was an absolute prerequisite to [a] finding of 

involuntariness[,] and the absence of such police coercion was dispositive of the 

inquiry." Defendant contends the judge should have found his custodial 

statements were involuntary, based on his intellectual impairments, which 

caused the questioning by police to be coercive. We disagree.

New Jersey has long "adopted and employed the impeachment exception 

[to the exclusionary rule] set forth in Harris." State v. Burris, 145 N.J. 509, 524

(1996) (citing Harris v. New York, 401 U.S. 222 (1971)) (other citations 

omitted). The impeachment exception maintains the inadmissibility of evidence 

subject to the exclusionary rule in a prosecution's case-in-chief, but admits the 

otherwise excluded evidence during defendant's cross-examination, should 

defendant take the stand. New Jersey jurisprudence has "recognized and 

accepted the Supreme Court's use of the impeachment exception in cases 
 6 A-1159-17T4

involving constitutional violations, as well as Miranda violations of the privilege 

against self-incrimination." Ibid. (citation omitted). 

"The impeachment exception is strictly limited to situations in which the 

suppressed statement is trustworthy and reliable in that it was given freely and 

voluntarily without compelling influences." Id. at 525 (citing Mincey v. 

Arizona, 437 U.S. 385, 397-98 (1978)). 

The United States Supreme Court observed that a 

determination of whether a statement is voluntary 

entails a factual inquiry. It requires careful evaluation 

of all the circumstances of the interrogation, and, 

ultimately, the question is whether the defendant's will 

was overborne. Mincey, 437 U.S. at 397-98. The 

Supreme Court has recognized that if the defendant's 

will was overborne, the confession is not the "product 

of a rational intellect and a free will." Blackburn v. 

Alabama, 361 U.S. 199, 208 (1960). A confession that 

is not the product of such "rational intellect" and "free 

will" is involuntary and is violative of the Due Process 

Clause of the Fourteenth Amendment. Townsend v. 

Sain, 372 U.S. 293 (1963) [(other citations omitted)].

[Id. at 525-26 (emphasis added).]

Our Supreme Court has repeatedly emphasized how to analyze voluntary 

confession cases, explaining,

[T]he State must demonstrate the voluntariness of a 

confession beyond a reasonable doubt. State v. 

Galloway, 133 N.J. 631, 654 (1993). An involuntary 

confession can result from physical and psychological 

coercion. Ibid. Confessions are not voluntary if 

derived from "very substantial" psychological 

pressures that overbear the suspect's will. Id. at 656. 
 7 A-1159-17T4

In determining whether a defendant's will was 

overborne, the totality of the circumstances must be 

examined, "including both the characteristics of the 

defendant and the nature of the interrogation." Id. at 

654. Relevant factors include "the suspect's age, 

education and intelligence, advice concerning 

constitutional rights, length of detention, whether the 

questioning was repeated and prolonged in nature, and 

whether physical punishment and mental exhaustion 

were involved." Ibid. [(other citations omitted)].

[State v. Cook, 179 N.J. 533, 562-63 (2004).]

Here, defendant provides no meritorious support or reasoning for his 

argument that evidence of police coercion is not a prerequisite to a finding of 

involuntariness. To the contrary, the United States Supreme Court held that 

"[a]bsent police conduct causally related to the confession, there is simply no 

basis for concluding that any state actor has deprived a criminal defendant of 

due process of law." Connelly, 479 U.S. at 164. The Connelly Court 

acknowledged the uptick of interrogators' "more subtle forms of psychological 

persuasion," and responded that "this fact does not justify a conclusion that a 

defendant's mental condition, by itself and apart from its relation to official 

coercion, should ever dispose of the inquiry into constitutional 'voluntariness.'" 

Ibid. This court has adopted Connelly's holding. Smith, 307 N.J. Super. at 10 

(quoting Connelly, 479 U.S. at 167 ("[C]oercive police activity is a necessary 

predicate to the finding that a confession is not "voluntary" within the meaning 

of the Due Process Clause of the Fourteenth Amendment.")).
 8 A-1159-17T4

Defendant cites to United States v. Preston, 751 F.3d 1008 (9th Cir. 2014) 

as a case where the court "examined the coerciveness of police interrogation 

techniques through the lens of defendant's mental illness and ruled that his 

statement was involuntary." However, in Preston the Ninth Circuit found 

multiple instances of improper interrogation techniques by the police, threats of 

continued questioning, "multiple deceptions" by the officers, "false promises of 

leniency and confidentiality," and other forms of police misconduct, leading the 

court to conclude that defendant's "will was overborne and his statement 

involuntary." Id. at 1023-28.

Defendant's only assertion of police misconduct during the custodial 

interrogation took place when the police began discussing the events that led up 

to Byrd's killing, and the following colloquy occurred: 

A: I came around there early, like around that time.

Q: It was around? Well, we got you on camera, 

sometime I guess it was around, 9:22 . . . .

A: Yeah.

Q: Okay and then what . . . happens then?

A: Went around it.

Q: Went around where?

A: Woodlawn.

Q: Okay. You and him had words again?
 9 A-1159-17T4

A: Yeah, man.

Q: What did he say this time? Did he continue to 

threaten you?

A: Yeah.

Q: And then what?

A: That's all that happened.

Q: We can't even though we know what happened. 

We can't . . . put words into your mouth. We can't 

tell you, we have to have you tell us even though 

we know, you know. It's just the way it is.

A: That's all that happened.

Q: Did he threaten you today?

A: Yeah, he threatened me.

[(emphasis added)]

Defendant then continued to answer the officers' questions, and it was not 

until more than twenty questions and twenty answers later that defendant made 

inculpating statements. On appeal, defendant argues: 

The officer's explanation of 'the way it is' compelled 

[defendant] to continue with the interrogation. For a 

suspect of [defendant]'s cognitive limitations, the 

police representation that although they were aware of 

what happened they needed to hear it from [defendant], 

may have led him to believe that the police had all the 

inculpatory evidence, and the interrogation was simply 

an exercise in hearing it from his lips.
 10 A-1159-17T4

By the time of the custodial interrogation, however, the police had already 

tracked down defendant from the crime scene to the apartment where he was 

apprehended. At the apartment, they recovered a gun in a box in the hallway 

outside the apartment where defendant was found. Witness interviews identified 

defendant as the shooter. Thus, the officers had enough evidence to know that 

defendant knew more than his assertion – "[t]hat's all that happened" – and 

therefore reasonably continued to question defendant. Moreover, by this time 

defendant already acknowledged that he met with Byrd on the day of the 

incident, and that Byrd threatened him. After defendant said "that's all that 

happened" a second time, the officers asked more than twenty questions seeking 

additional details about this encounter and defendant's history with Byrd. In 

other words, the officers responded to "[t]hat's all that happened" with further

questions regarding information already given in the interrogation, rather than 

repeating the same questions or pushing defendant further along in the story. 

Ultimately, defendant's assertion he was compelled to continue with the 

investigation is meritless, as it falls far short of the Court's standard that "'very 

substantial' psychological pressures that overbear the suspect's will" must be 

found in ruling that an involuntary confession occurred. Cook, 179 N.J. at 563 

(quoting Galloway, 133 N.J. at 656). 
 11 A-1159-17T4

The record supports the trial judge's finding of "no evidence of police 

coercion," and that no "threats or promises were made to [d]efendant at any point 

during the interview." The judge noted the short length of the interrogation, and 

that "[w]hile [defendant's] intellectual disability is certainly a factor to be 

considered in the totality of the circumstances analysis, alone it is not 

determinative," a rationale consistent with this court's finding in Smith.

Furthermore, the record shows defendant's statements were not only 

voluntary, but also reliable, as all material statements find corroboration in the 

record. Defendant stated that he walked down Ocean Avenue and to his friend's 

apartment – this was corroborated by the surveillance video and the fact that 

defendant was arrested at the apartment. Defendant's statement of where he hid 

the gun was corroborated by the fact the police found it at the stated location. 

Defendant told the story multiple times during the interrogation, with no 

inconsistencies. Defendant knew Byrd as "Hass," a shortened version of his first 

name "Hassan." Defendant also discussed his custodial interrogation with Dr. 

Cook, stating that his attorney told him that he should not have said anything;

however, there was no indication he recanted anything he said in the 

interrogation. We therefore hold that the trial court correctly ruled that 

defendant's statements made at the custodial interrogation were voluntary, and 

therefore are within the impeachment exception to the exclusionary rule.
 12 A-1159-17T4

II

Defendant next argues he received an excessive sentence, asserting the 

trial court erred in failing to apply mitigating factor four, and in failing to apply

aggravating factors three, six, and nine "through the lens of defendant's 

cognitive, mental, and psychiatric defects." 

Our Supreme Court has repeatedly held that sentencing determinations are 

reviewed on appeal with a highly deferential standard. State v. Fuentes, 217 

N.J. 57, 70 (2014). Specifically the Court has articulated:

The appellate court must affirm the sentence unless (1) 

the sentencing guidelines were violated; (2) the 

aggravating and mitigating factors found by the 

sentencing court were not based upon competent and 

credible evidence in the record; or (3) "the application 

of the guidelines to the facts of [the] case makes the 

sentence clearly unreasonable so as to shock the 

judicial conscience."

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65

(1984) (alteration in original)).]

When determining a sentencing term, a trial court must identify whether 

any of the aggravating factors enumerated in N.J.S.A. 2C:44-1(a) or the 

mitigating factors in N.J.S.A. 2C:44-1(b) apply, and then balance the applicable 

factors. Id. at 72. The relevant factors must then be "qualitatively addressed 

and assigned appropriate weight in a case-specific balancing process." Id. at 72-

73 (citing State v. Kruse, 105 N.J. 354, 363 (1987)). The court must also "state 
 13 A-1159-17T4

reasons for imposing such sentence including . . . the factual basis supporting a 

finding of particular aggravating or mitigating factors affecting sentence...." R.

3:21-4(g). It is especially important that the court provide a "clear explanation 

'of the balancing of aggravating and mitigating factors with regard to imposition 

of sentences and periods of parole ineligibility . . . .'" Fuentes, 217 N.J. at 73 

(quoting State v. Pillot, 115 N.J. 558, 565-66 (1989)) (other citations omitted).

In sentencing defendant, the court found significant the following 

aggravating factors: 1) the risk of re-offense (factor three); 2) the extent of 

defendant's prior criminal record and the severity of those offenses (factor six);

and 3) the need for deterrence (factor nine). See N.J.S.A. 2C:44-1(a)(3). At 

defendant's request, the judge considered the mitigating factor of substantial 

grounds tending to excuse or justify the defendant's conduct (factor four), but 

declined to apply it. See N.J.S.A. 2C:44-1(b)(4).

On appeal, defendant first contends that mitigating factor four "applies 

due to [defendant's] documented intellectual and cognitive deficits." 

Defendant's cases in support of his argument are clearly distinguishable: State 

v. Hess, 207 N.J. 123, 129 (2011) concerned a defendant who "suffered from 

Battered Women's Syndrome when she killed her husband"; State v. Nataluk, 

316 N.J. Super. 336, 342-43 (App. Div. 1998) involved a defendant who 

"previously suffered three severe head injuries," "frequently experienced 
 14 A-1159-17T4

delusions and hallucinations," and whose expert doctor opined "defendant was 

insane at the time of the incident"; and in State v. Nayee, 192 N.J. 475 (2007), 

the Supreme Court summarily remanded the case "solely to the issue of the trial 

court's refusal to consider the record before it in respect of defendant's mental 

illness as a mitigating factor under N.J.S.A. 2C:44-1b(4) in arriving at its 

sentence."

In this case, however, the trial judge stated, "I certainly accept and 

acknowledge that you have issues, mostly cognitive in nature." He then 

explained to defendant,

But I have to weigh that against the facts and

circumstances in this case. Whatever those cognitive 

deficiencies are, [it] certainly doesn’t convince me at 

all that it [a]ffected your ability to understand and 

appreciate what you did in October 2014, when you 

took that gun out and fired it multiple times at an 

unarmed man.

The result was all but certain. There's nothing before 

me that in any [way] begins to excuse, minimize or 

explain your conduct. You are a seasoned veteran in 

the juvenile justice system by the time you took the gun 

out. You had been arrested twice as an adult for 

indictable charges. You knew what you were doing. 

You knew the results that were going to occur.

The judge then acknowledged defendant and Byrd's relationship, and 

defendant's clear intentions on the day of the incident, stating: 

Certainly . . . that again doesn't excuse this conduct. It 

doesn't minimize it. . . . You shot him five times. And 
 15 A-1159-17T4

then . . . . [y]ou ran and you hid, because you knew what 

you did was wrong. You tried to hide the gun so 

nobody would find it. . . . All indicating to me you well 

knew what you were doing when you did that.

Whatever shortcomings you may have had in life, I 

don't believe [a]ffected your decision one bit that day. 

So I clearly don't find mitigating factors three or four 

apply here.

The judge clearly considered defendant's cognitive disabilities under

mitigating factor four, and weighed it against the facts of the case and language 

of the statute. We find no basis to disturb his decision not to apply mitigating 

factor four.

Second, defendant argues that "while aggravating factors three, six, and 

nine are applicable, they must be considered through the lens of defendant's 

cognitive, mental, and psychiatric deficits." Defendant fails to provide any legal 

support for this assertion. Moreover, as explained above, the judge did consider 

defendant's cognitive disabilities. He then provided ample reasons as to his 

rationale for applying factors three, six, and nine.

Finally, it should be noted that in his plea form, under "[s]pecify any 

sentence the prosecutor has agreed to recommend," defendant wrote that he "will 

plead guilty to [count one] as amended to . . . [aggravated] manslaughter[, and] 

in exchange the state will seek [a twenty-five-year sentence] . . . ." Defendant 
 16 A-1159-17T4

was ultimately sentenced to twenty-four years in prison subject to an eighty-five 

percent parole ineligibility period. 

We conclude the sentencing court applied correct legal principles and its 

findings regarding aggravating and mitigating factors are fully supported by the 

record. See State v. Megargel, 143 N.J. 484, 493-94 (1996). We find no clear 

error of judgment in the court's application of the facts to the law that would 

shock our conscience. See id. at 393 (citation omitted). Accordingly, we find 

no abuse of discretion in the imposition of an extended term or the particular 

sentence imposed here. See State v. Pierce, 188 N.J. 155, 166 n.4 (2006)

(citation omitted); see also State v. Hudson, 209 N.J. 513, 526 (2012) (citation 

omitted).

Affirmed.