NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2658-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REGINALD ANTHONY,

Defendant-Appellant.

____________________________________________

Argued September 21, 2015 – Decided

Before Judges Messano, Carroll and Sumners.

On appeal from the Superior Court of New 

Jersey, Law Division, Essex County, 

Indictment No. 11-04-0702.

Mark H. Friedman, Assistant Deputy Public 

Defender, argued the cause for appellant 

(Joseph E. Krakora, Public Defender, 

attorney; Mr. Friedman, on the brief).

Lucille M. Rosano, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued 

the cause for respondent (Carolyn A. Murray, 

Acting Essex County Prosecutor, attorney; 

Ms. Rosano, on the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

Tried by a jury, defendant Reginald Anthony was convicted 

of second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 

and 2C:18-2(b)(1). The jury acquitted defendant of the 

APPROVED FOR PUBLICATION

January 19, 2016

APPELLATE DIVISION

January 19, 2016
2 A-2658-12T3

remaining counts of the indictment, including burglary, robbery, 

murder, felony-murder and related weapons offenses. The judge 

granted the State's motion to sentence defendant as a persistent

offender, N.J.S.A. 2C:44-3(a), and imposed the maximum extended 

term of twenty years' imprisonment, with an eighty-five percent 

period of parole ineligibility pursuant to the No Early Release 

Act, N.J.S.A. 2C:43-7.2. 

Defendant raises the following issues for our consideration 

on appeal:

POINT I

THE TRIAL COURT ERRED PREJUDICIALLY IN 

RULING THAT UNDER [RULE] 3:17 THE POLICE 

WERE NOT REQUIRED TO RECORD THE QUESTIONING 

OF DEFENDANT BETWEEN HIS ARREST AND HIS 

STATEMENT THAT "PIPE MADE ME DO IT" BECAUSE 

THEY VIEWED HIM AS A WITNESS RATHER THAN A 

SUSPECT FOR THE CRIMINAL ACTS COMMITTED 

AGAINST [THE VICTIM].

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE 

AND UNDULY PUNITIVE BECAUSE IT IS FOUNDED ON 

IMPROPER FINDINGS REGARDING AGGRAVATING 

FACTORS.

We have considered these arguments in light of the record and 

applicable legal standards. We affirm defendant's conviction 

and remand the matter for reconsideration of the sentence 

imposed.
3 A-2658-12T3

I.

A pre-trial evidentiary hearing was held regarding the 

admissibility of defendant's statement to investigators.1 

Lieutenant Thomas J. Kelly of the Essex County Prosecutor's 

Office Homicide Squad testified that on Thursday, April 15, 

2010, he responded to a single-family home in Essex Fells to 

investigate a homicide. The ninety-one-year-old victim was 

found dead in his home office with his hands and feet bound. 

The home was in disarray, and the victim's body bore "defensive 

type wounds" on his forearms as well as a laceration to his 

neck.

Kelly learned that the victim's wife last had contact with 

him at approximately 7:00 p.m. the night before. She told 

detectives that the couple regularly used a car service to drive 

to New York City where they had an apartment. On April 13, she 

went to New York alone. The driver was not her usual driver but 

someone "with the name Reggie." According to Kelly, using 

several "databases," police were able to identify "Reggie" as 

 

1 Defendant was indicted with Shaun Woodson. Both defendants 

participated in the pre-trial evidentiary hearing; however, 

defendant was tried separately. 
4 A-2658-12T3

defendant, and they located his possible residence in East 

Orange. Defendant was the subject of an open arrest warrant.2

Detectives arrived at the East Orange address and took 

defendant into custody on the active warrant. Kelly advised 

defendant of his Miranda3 rights by reading from a card Kelly 

kept in his wallet. At approximately 8:30 p.m., after being 

transported to the Prosecutor's Office, defendant agreed to 

speak with detectives. We quote extensively from Kelly's 

testimony which sets forth in detail the foreknowledge 

detectives possessed at this point in the investigation.

At this point[,] we . . . believed 

[defendant] possibly was the last person to 

have contact with our victim. We questioned 

him about . . . his Aunt . . . Sheila 

Humphreys . . . who either owns or operates 

the company that the [victim and his wife] 

utilize when they travel back and forth from 

the City. . . . Mrs. Humphreys . . . had 

asked [defendant] to make the pickup. . . . 

[T]his wasn't the first time. He had done 

it one other time he told us in that initial 

interview.

[Defendant] reported that he went to 

the location on [April 13], picked up [the 

victim's wife]. He advised us that [the 

victim] did not make the trip with her, and 

. . . he noted that. . . . [H]e drove her 

into the City.

 

2 On cross-examination, Kelly confirmed this was a "municipal 

traffic warrant out of West Orange." 

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966).
5 A-2658-12T3

[Defendant] explained . . . that the 

normal procedure . . . is the driver goes to 

the person's house in their own car, and 

then you pick up the person's car, make the 

transport to and from in that vehicle, and 

return the vehicle to the person's house and 

then get in your own vehicle and go about 

your business.

[Defendant] advised us that on [April 

13] that's not what he did. He told us that 

he came back from the City and instead of 

going back to . . . the [victim's] 

residence, he took their car for a ride. In 

the course of doing that, . . . he . . . met 

up with a friend of his named Pipe. . . . 

[H]e believed his first name [w]as Shaun and 

that he was from East Orange . . . .

[Defendant] told us that at some point 

he received a phone call from his aunt 

making sure that he was back with the 

transport . . . . [H]e went back up with 

the [victim's] car and returned it to [the 

victim's] home . . . . [P]ipe was with him 

when he returned the car. . . . [T]hey 

parked the car the way they're supposed to, 

and they got back into the car that 

[defendant] drove to get up there and they 

left Essex Fells.

Defendant denied ever returning to the Essex Fells house.

At approximately 2:45 a.m., detectives applied for and 

obtained a communication data warrant (CDW) to "plot out 

[defendant's] cell phone to see if his movements as . . . 

described . . . in his interview were accurate." While this 

occurred, defendant remained in custody in the interrogation 

room on the active warrant, but was not questioned further.
6 A-2658-12T3

By 9:00 a.m., records secured through the CDW revealed that 

defendant's cellphone had "hit off a cell tower" near the 

victim's home at approximately 8:00 p.m. on April 14. This was 

contrary to defendant's claim that he had never returned to the 

victim's home after leaving there the prior evening. Confronted 

with this information, defendant asked to speak to Kelly alone 

and told him, "Pipe made me take him back up there."

At this point, Kelly had another detective "start the video 

camera so we could start recording anything that was said . . . 

from that point forward." Kelly re-administered Miranda

warnings to defendant, who executed a waiver of rights form and 

agreed to provide a statement to detectives, but that process 

was not recorded. The video recording, approximately thirtyeight minutes in length, was played for the judge.4

Kelly denied that defendant suffered any injuries while in 

custody, or that defendant ever asked to speak to an attorney. 

On cross-examination, Kelly acknowledged the "Attorney General 

Guidelines" regarding the recordation of statements, but 

asserted that "[t]he [G]uidelines don't require that the Miranda

itself [be] recorded." Kelly stated that defendant first became 

a suspect in the homicide "when I knew his cell phone was up in 

th[e] area" of the victim's home. 

 

4 The video is not part of the appellate record.
7 A-2658-12T3

Detective Philip Gregory testified as a defense witness. 

He accompanied Kelly during defendant's arrest, corroborated 

that Miranda rights were read to defendant in the police 

vehicle, and started the video recording machine outside of the 

interview room. Gregory believed that the re-administration of 

Miranda rights to defendant was recorded. Gregory also denied 

that any officer used physical force against defendant, or that 

defendant was injured in any way during the time he was in 

custody.

Defendant's girlfriend testified that, when defendant drove 

her to work during the afternoon hours on the date of his 

arrest, he bore no signs of physical injury. Defendant 

testified that he was treated harshly when arrested, and 

detectives neither read him his Miranda rights nor told him why 

he was arrested. Defendant claimed that in the interrogation 

room, detectives made him "feel" like he was in custody for the 

homicide and denied defendant's request for an attorney. 

Defendant testified that Gregory and other officers physically 

assaulted him. He acknowledged initialing the Miranda waiver 

form for Kelly, but he only did so after first refusing because 

he feared additional physical abuse. Defendant further 

testified that Kelly told him what to say prior to recording the 

statement. Defendant was in pain upon his arrival at the county 
8 A-2658-12T3

jail, and sheriff's officers transported him to the hospital 

where he was diagnosed with contusions and a "ruptured eardrum."5 

On cross-examination, defendant admitted familiarity with 

the Miranda warnings, as evidenced by three waiver forms 

defendant admittedly executed following prior arrests, and also 

acknowledged his prior criminal convictions. Although initially 

claiming that he had never given a statement to police in the 

past, the prosecutor confronted defendant with a signed 

statement from one of his prior arrests. Defendant had 

forgotten because it occurred long ago. 

After argument by the attorneys, the judge orally explained 

his decision to admit defendant's statement into evidence. In a 

written opinion that followed, the judge specifically credited 

Kelly's testimony and discredited defendant's. The judge made 

various observations from the video recording that belied 

defendant's assertions of maltreatment and physical abuse, and 

noted that medical notes did not support a conclusion that 

 

5 In argument that followed the testimony, defense counsel 

referenced some nurse's notes from the hospital, which he 

claimed were "stipulated to by the State." There was no 

reference to them during the testimony, but the notes apparently 

contained observations of "fresh blood in [defendant's] ear 

canal caused by a ruptured eardrum, a contusion on his forehead, 

[and] a swelling of his right jaw." At trial, the nurse 

practitioner who treated defendant at the hospital testified to 

his injuries. 
9 A-2658-12T3

defendant's ear had been injured seven hours earlier, as 

defendant claimed.

Addressing the salient issue on appeal, the judge wrote:

[D]efendant was . . . read his Miranda

warnings at the time he was taken into 

custody. Further, while defendant argues 

that the Miranda waiver should have been 

electronically recorded pursuant to [Rule] 

3:17(a), the rule requires only that 

"custodial interrogations conducted in a 

place of detention must be electronically 

recorded when the person being interrogated 

is charged." Moreover, "the failure to 

electronically record a defendant's 

custodial interrogation . . . shall be a 

factor for consideration by the trial court 

in determining the admissibility of a 

statement." R. 3:17(d). Here, as both 

officers testified, defendant was a witness 

because he was possibly the last person to 

see [the] victim alive and did not become a 

suspect until he indicated he wanted to 

talk, when he was again issued the Miranda

warnings and given a waiver form to sign 

before providing an electronically recorded 

statement.

[(Emphasis added).]

The judge concluded that the "custodial interrogation was 

properly conducted[,] . . . the requisite warnings [were] 

given[,] . . . [and] the State ha[d] proven beyond a reasonable 

doubt that . . . defendant knowingly and intelligently waived 

each and every one of those rights . . . and that . . . 

defendant neither invoked nor attempted to invoke any of those 

rights thereafter."
10 A-2658-12T3

The State introduced defendant's statement at trial. It 

suffices to say that defendant claimed Woodson demanded that 

they return to the victim's home on the night of April 14, and 

told defendant he wanted to "rob[]" the place. Defendant 

reluctantly drove there and waited in the car as Woodson entered 

through the front door of the home. Defendant never knew the 

victim had been murdered until his aunt told him. 

Defendant testified before the jury and gave a similar 

account of events, admitting that he agreed to drive Woodson to 

the home with the intention that Woodson enter to burglarize the 

house if no one was at home. He also testified regarding the 

physical abuse he sustained during interrogation by police. As 

noted, the jury convicted defendant of conspiracy to commit 

burglary but acquitted him of all other charges. 

II.

Before us, defendant contends that the judge erred by 

concluding the interrogation did not need to be recorded 

pursuant to Rule 3:17 (the Rule) until defendant uttered the 

phrase, "Pipe made me take him back up there." Defendant 

contends that the judge erred as a matter of law by concluding 

the officers' subjective belief controlled, and he argues we 

should review de novo the judge's conclusion that defendant was 

not a suspect until that point. He urges "an objective 
11 A-2658-12T3

standard" should apply, i.e., application of the Rule should 

turn on whether a defendant is a "suspect" based upon "objective 

rather than subjective circumstances." Defendant argues that, 

although the Rule does not mandate suppression of his statement 

if violated, the error nevertheless requires reversal in this 

case. 

The State argues that the detectives were not required to 

record their initial interview with defendant because he was not 

arrested for any of the crimes listed in the Rule which trigger 

law enforcement's obligation to record the interrogation. 

Alternatively, the State argues that objectively looking at the 

facts known to Kelly, defendant was not a suspect in the murder 

until Kelly confronted him with the CDW information, and 

defendant blurted out, "Pipe made me take him back up there." 

From that point, the State argues investigators complied with 

the Rule. Lastly, the State contends that any error was 

harmless, because the jury obviously believed defendant's 

version of events and acquitted him of all but the conspiracy 

count at trial.

The Rule is relatively new, having been adopted by the 

Court in 2005, following its decision in State v. Cook, 179 N.J.

533 (2004), the formation of a special committee, id. at 562, 

and receipt of the committee's report. No reported decision has 
12 A-2658-12T3

fully construed the Rule's somewhat ambiguous provisions.6 We 

begin by clarifying our standard of review.

A.

As the Court most recently said, "[a]ppellate courts 

reviewing a grant or denial of a motion to suppress must defer 

to the factual findings of the trial court so long as those 

findings are supported by sufficient evidence in the record." 

Hubbard, supra, 222 N.J. at 262. "We defer to those findings of 

fact because they 'are substantially influenced by [an] 

opportunity to hear and see the witnesses and to have the "feel"

of the case, which a reviewing court cannot enjoy.'" Ibid.

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We do not, 

however, defer to the trial court's legal conclusions, which we 

 

6 In State v. Hubbard, 222 N.J. 249 (2015), the Court referred to 

the Rule by stating, 

[T]he Court adopted Rule 3:17 in 2005, which 

generally requires electronic recordation of 

custodial interrogations of those charged 

with certain enumerated serious offenses. 

Rule 3:17(a) outlines a series of 

circumstances in which the electronic 

recordation requirement applies when the 

person being interrogated is charged with 

murder, aggravated manslaughter, or 

manslaughter.

[Id. at 263.]

We believe this passing reference was dicta, since the Rule

itself had little to do with the issue confronting the Court in 

Hubbard.
13 A-2658-12T3

review de novo. Id. at 263. "And for mixed questions of law 

and fact, we give deference . . . to the supported factual 

findings of the trial court, but review de novo the lower 

court's application of any legal rules to such factual 

findings." State v. Harris, 181 N.J. 391, 416 (2004).

Because interpretation of a court rule is a legal issue, 

our review is de novo. State v. Tate, 220 N.J. 393, 405 (2015). 

"The approach taken in respect of the construction of court 

rules is the same as that for the construction of statutes." 

State v. Clark, 191 N.J. 503, 508 (2007) (citing Wiese v. 

Dedhia, 188 N.J. 587, 592 (2006)). "[W]e typically begin by 

examining the plain language of a court rule, and give the words 

their ordinary meaning." Ibid. (citing Wiese, supra, 188 N.J.

at 592). "We turn to extrinsic materials when the language of 

the rule is ambiguous and lends itself to more than one 

plausible interpretation." Id. at 508-09 (citing Wiese, supra, 

188 N.J. at 592).

B.

In Cook, supra, 179 N.J. at 542-46, the defendant was 

arrested on outstanding municipal warrants and interrogated on

four separate occasions over two days; the sessions were not 

electronically recorded. The Court rejected defendant's claim 

that his due process rights were violated by the State's failure 
14 A-2658-12T3

to record the interrogations, but it concluded "[t]he proverbial 

'time has arrived' . . . to evaluate fully the protections that 

electronic recordation affords to both the State and to criminal 

defendants." Id. at 562. The Court "establish[ed] a committee 

to study and make recommendations on the use of electronic 

recordation of custodial interrogations." Ibid. 

The Supreme Court Special Committee on Recordation of 

Custodial Interrogations (the Committee) issued its report on 

April 15, 2005. The report included a comprehensive analysis of 

the different recordation requirements adopted throughout the 

United States, as well as statutes and case law from sister

states where policies had already been enacted. Report of the 

Special Committee on Recordation of Custodial Interrogations, at 

6 (Apr. 15, 2005) (the Committee Report). The Committee made a 

series of recommendations including: 

RECOMMENDATION 3: Electronic recording 

should occur when a custodial interrogation 

is being conducted in a place of detention 

and should begin at, and include, the point 

at which Miranda warnings are required to be 

given.

. . . .

RECOMMENDATION 4: Electronic recording of 

custodial interrogations occurring in a 

place of detention should occur when the 

adult or juvenile being interrogated is 

charged with an offense requiring the use of 

a warrant pursuant to [Rule] 3:3-1c.
15 A-2658-12T3

. . . . 

RECOMMENDATION 5. The requirement for 

electronic recordation of custodial 

interrogations occurring in a place of 

detention should not apply in circumstances 

where:

. . . .

(f) a statement is given at a time when the 

accused is not a suspect for the crime to 

which that statement relates while the 

accused is being interrogated for a 

different crime that does not require 

recordation[] . . . .

[Committee Report at 37-40.]

The rule proposed by the Committee included recommendation four 

and five but did not explicitly include the requirement in 

recommendation three, i.e., that recordation "begin at, and 

include, the point at which Miranda warnings are required to be 

given." Id. at 44-46. 

On October 14, 2005, the Court ordered implementation of 

the Rule, effective January 1, 2006, in respect of all homicide 

offenses and January 1, 2007, for all other offenses specified 

in paragraph (a) of the Rule. The Rule as adopted mirrored the 

Committee's proposed rule and provides in relevant part:

a) Unless one of the exceptions set forth 

in paragraph (b) are present, all custodial 

interrogations conducted in a place of 

detention must be electronically recorded 

when the person being interrogated is 

charged with murder, . . . aggravated 

manslaughter, manslaughter, robbery, . . . 
16 A-2658-12T3

burglary, . . . any crime involving the 

possession or use of a firearm, or 

conspiracies or attempts to commit such 

crimes.

. . . .

(b) Electronic recordation pursuant to 

paragraph (a) must occur unless:

. . . .

(vi) a statement is given at a time when 

the accused is not a suspect for the crime 

to which that statement relates while the 

accused is being interrogated for a 

different crime that does not require 

recordation, 

. . . .

The State shall bear the burden of proving, 

by a preponderance of the evidence, that one 

of the exceptions is applicable.

[R. 3:17 (emphasis added).]

The failure to record the interrogation does not require 

suppression of a defendant's statement, but it "shall be a 

factor for consideration by the trial court in determining the 

admissibility of a statement, and by the jury in determining 

whether the statement was made, and if so, what weight, if any, 

to give to the statement." R. 3:17(d). Further, in the absence 

of recordation, the court "shall, upon request of the defendant, 

provide the jury with a cautionary instruction." R. 3:17(e); 

see Model Jury Charge (Criminal), "Statements of Defendant (When 
17 A-2658-12T3

Court finds Police Inexcusably Failed to Electronically Record 

Statement)," (Approved 11/7/05).

With this background in mind, we return to the arguments 

advanced on appeal.

C.

The State contends that the detectives were under no 

obligation to record their initial interview with defendant 

because he was in custody on municipal warrants and had not been 

"charged with" the homicide or any other crime listed in 

subsection (a) of the Rule. Defendant counters by arguing such 

an interpretation would permit police to question suspects in 

homicides without recording the interrogation, thereby defeating 

the prophylactic purposes of the Rule. Defendant also argues 

that the State's interpretation is inconsistent with the 

exception provided by subsection (b)(vi). We agree with 

defendant.

Although subsection (a) is triggered when the person in 

custody is "being interrogated" and "charged with" one of the 

listed offenses, subsection (b)(vi) excepts from the Rule's 

requirements the need to record a statement if "the accused is 

not a suspect for the crime to which that statement relates

while the accused is being interrogated for a different crime 

that does not require recordation." R. 3:17 (emphasis added). 
18 A-2658-12T3

The State concedes the ambiguity of the operative terms used in 

the Rule, i.e., "charged with" versus "not a suspect." Under 

the State's rationale, the Rule does not require recordation of 

a statement made by a defendant who is not charged with a listed 

crime, even if he is a suspect. 

The construction urged by the State would render exception 

(b)(vi) superfluous, a circumstance we seek to avoid in 

interpreting a statute or court rule. See, e.g., In re N.B., 

222 N.J. 87, 101 (2015) ("Such an interpretation would 

contravene the canon of statutory construction that directs 

courts to interpret laws so as to give meaning to all of the 

. . . text."). Instead, "[t]he Court must 'seek an 

interpretation that will make the most consistent whole of the 

statute.'" Ibid. (quoting State v. Sutton, 132 N.J. 471, 479 

(1993)).

A more consistent interpretation, and one that supports the 

policy of the Rule, is that urged by defendant. Law enforcement 

officials must record custodial interrogations of those who are 

suspected of committing, and will be questioned about, any crime 

listed in subsection (a) of the Rule. This interpretation is 

supported by other provisions in the Rule. For example, 

subsection (b)(iv) excepts from the recordation requirements 

statements made "by a suspect who indicated, prior to making the 
19 A-2658-12T3

statement, that he/she would participate in the interrogation 

only if it were not recorded; provided however, that the 

agreement to participate under that condition is itself 

recorded." R. 3:17 (b)(iv) (emphasis added).

This interpretation finds support in the Committee Report, 

which examined existing laws and case law in Alaska, Minnesota, 

Illinois, Maine, Massachusetts and the District of Columbia. In 

each instance, the Committee noted the procedures enacted or 

contemplated in those states expressly applied to "suspects" or 

to the "accused" at trial. Committee Report, supra, at 6-12.

The State argues that the Court's adoption of the "charged 

with" language in subsection (a) was a conscious decision to 

depart not only from the direction charted by other states, but 

also from the path plotted by, and being voluntarily implemented 

by, New Jersey's law enforcement community when the Rule was 

adopted. The State cites to the Committee's review of the 

Interim Policy Statement of the New Jersey Attorney General and 

the New Jersey County Prosecutors' Association (Apr. 13, 2004),

and the Amended Policy Statement (Dec. 17, 2004), which provided 

for electronic recording of "a person who is suspected of 

committing" certain crimes. The State contends the Court 

intended to limit the Rule's application to only those instances 
20 A-2658-12T3

where the person "being interrogated" was already "charged with" 

certain crimes. We disagree.

First and foremost, the defendant in Cook, the decision 

which spawned enactment of the Rule, was not "charged with" the 

homicide or any other enumerated offense when questioned by 

police, although he was surely a suspect at the time. Cook, 

supra, 179 N.J. at 541-43. Like defendant in this case, he was 

arrested on municipal court warrants. Ibid. The Court's charge 

to the Committee was "to study and make recommendations on the 

use of electronic recordation of custodial interrogations[,]" 

without limiting consideration to interrogations of only those 

"charged with" certain offenses. Id. at 562.

Additionally, although not precisely on point with the 

issue here, the Court has considered whether a defendant's 

statement should be suppressed in a variety of circumstances 

where the defendant was not fully appraised of his status as a 

suspect prior to receiving or waiving his Miranda rights. For 

example, in State v. A.G.D., 178 N.J. 56, 68 (2003), the Court 

held that a suspect was deprived of "information indispensable 

to a knowing and intelligent waiver of [Miranda] rights" when 

the detectives interrogating him failed to advise that they 

already possessed a warrant for his arrest. The Court concluded 

that "[w]ithout advising the suspect of his true status when he 
21 A-2658-12T3

does not otherwise know it, the State cannot sustain its burden 

. . . that the suspect has exercised an informed waiver of 

rights, regardless of other factors that might support his 

confession's admission." Ibid. 

In State v. O'Neill, 193 N.J. 148, 180 (2007), the Court 

concluded that "[t]he two-step, 'question-first, warn-later'

interrogation is a technique devised to undermine both the 

efficacy of Miranda and our state law privilege." The Court 

held that "as a matter of state law, . . . when Miranda warnings 

are given after a custodial interrogation has already produced 

incriminating statements, the admissibility of post-warning 

statements will turn on whether the warnings functioned 

effectively in providing the defendant the ability to exercise 

his state law privilege against self-incrimination." Id. at 

180-81.

In State v. Nyhammer, 197 N.J. 383, 406 (2009), cert. 

denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009), 

the Court made clear that failing to inform a person of his 

"suspect status" does not necessarily vitiate the voluntary 

waiver of his Miranda rights "or . . . require[] automatic 

suppression of a statement." "[T]he failure to be told of one's 

suspect status still would be only one of many factors to be 

considered in the totality of the circumstances." Id. at 407.
22 A-2658-12T3

Even though suppression of a defendant's statement is not a 

fait accompli if the Rule is violated, the cited cases reflect

the Court's concern that a defendant's status as a suspect be 

part of the calculus in determining the voluntary nature of any

waiver of the right to remain silent. Additionally, the Court 

in Cook cited its historical concern "for the reliability and 

trustworthiness of confessions as a prerequisite for their use." 

Cook, supra, 179 N.J. at 560; see also N.J.R.E. 104(c) 

(requiring the judge to preliminarily determine the 

admissibility of any statement by a defendant).

The critical role of the jury in evaluating the 

truthfulness of a defendant's statement has been long-recognized 

by our courts. See State v. Hampton, 61 N.J. 250, 272 (1972) 

(jury must "decide whether in view of all the . . . 

circumstances the defendant's confession is true"); State v. 

Kociolek, 23 N.J. 400, 421-22 (1957) (requiring jury to be 

charged on factors affecting accuracy of extra-judicial oral 

statements); see also Model Jury Charge (Criminal), "Statements 

of Defendant," (revised June 14, 2010). The model jury charge 

approved to implement the Rule further convinces us that 

defendant's interpretation is correct. The charge provides in 

pertinent part:

Our Rules require the electronic recording 

of interrogations by law enforcement 
23 A-2658-12T3

officers when a defendant is charged with 

[insert applicable offenses] so as to ensure 

that you will have before you a complete 

picture of all circumstances under which an 

alleged statement of a defendant was given, 

so that you may determine whether a 

statement was in fact made and, if so, 

whether it was accurately reported by 

State’s witnesses and whether it was made 

voluntarily or is otherwise reliable or 

trustworthy. Where there is a failure to 

electronically record an interrogation, you 

have not been provided with a complete 

picture of all of the facts surrounding the 

defendant's alleged statement and the 

precise details of that statement. By way 

of example, you cannot hear the tone or 

inflection of the defendant’s or 

interrogator’s voices, or hear firsthand the 

interrogation, both questions and responses, 

in its entirety. Instead you have been 

presented with a summary based upon the 

recollections of law enforcement personnel. 

Therefore, you should weigh the evidence of 

the defendant's alleged statement with great 

caution and care as you determine whether or 

not the statement was in fact made and if 

so, whether what was said was accurately 

reported by State’s witnesses, and what 

weight, if any, it should be given in your 

deliberations. The absence of an electronic 

recording permits but does not compel you to 

conclude that the State has failed to prove 

that a statement was in fact given and if 

so, was accurately reported by State's 

witnesses.

[Model Jury Charge (Criminal), supra

(emphasis added).] 

If we accepted the State's rationale — only interrogations of 

those "charged with" enumerated crimes need be recorded —

portions of a defendant's statement, unrecorded through 
24 A-2658-12T3

conscious decision of his interrogators, would be unavailable to 

the jury, depriving it of "a complete picture of all of the 

facts surrounding the defendant's alleged statement and the 

precise details of that statement." Ibid. 

In sum, we conclude that 1) the Rule requires electronic 

recordation of "all custodial interrogations" if the person is 

suspected of having committed one of the enumerated crimes 

contained in subsection (a) and is ultimately charged with one 

of those crimes; and 2) law enforcement authorities need not 

record the interrogation if at the time "the accused is not a 

suspect for the crime to which that statement relates." R.

3:17(b)(vi).

D.

We must still address how the trial judge should consider 

whether a defendant was "a suspect for the crime to which th[e]

statement relates," so as to trigger the recordation 

requirement. We agree with defendant that the judge cannot 

simply accept the interrogators' subjective belief that 

defendant was not a suspect. See, e.g., State v. O'Neal, 190 

N.J. 601, 615-16 (2007) ("The determination whether a suspect is 

in 'custody depends on the objective circumstances of the 

interrogation, not on the subjective views harbored by either 

the interrogating officers or the person being questioned'") 
25 A-2658-12T3

(quoting Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 

1526, 1529, 128 L. Ed. 2d 293, 298 (1994)); State v. Pineiro, 

181 N.J. 13, 27 (2004) (an investigative detention and any 

seizure that results "cannot . . . be justified merely by a 

police officer's subjective hunch") (quoting State v. Davis, 104 

N.J. 490, 505 (1986)).

Defendant posits that the standard should be whether a 

reasonable person in defendant's situation believed he was a 

suspect. We reject the contention, if for no other reason than 

"that the Miranda warnings themselves strongly suggest, if not 

scream out, that a person is a suspect." Nyhammer, supra, 197 

N.J. at 407. Certainly, any person being interrogated who 

actually committed the crime would reasonably conclude he was a 

suspect, regardless of what law enforcement actually knew at the 

time.

Instead, we believe the judge must apply an objective 

standard that takes into account the totality of the 

circumstances then known to the interrogator, and decide whether 

a reasonable police officer in those circumstances had a 

reasonable basis to believe a defendant was a "suspect" in the 

crime about which he was being questioned. That standard 

mirrors the one we apply in many other police-citizen 

encounters. See, e.g., State v. Mann, 203 N.J. 328, 338 (2010) 
26 A-2658-12T3

("[A] reviewing court must assess whether 'the facts available 

to the officer at the moment of the seizure or the search 

warrant a man of reasonable caution in the belief that the 

action taken was appropriate.'") (quoting Piniero, supra, 181 

N.J. at 21); O'Neal, supra, 190 N.J. at 615-16; State v. Moore, 

181 N.J. 40, 46 (2004) (noting that probable cause to arrest or 

search "exists where the facts and circumstances within . . . 

[the officers'] knowledge and of which they had reasonably 

trustworthy information [are] sufficient . . . to warrant a 

[person] of reasonable caution in the belief that an offense has 

been or is being committed") (quoting Schneider v. Simonini, 163 

N.J. 336, 361 (2000)). Under this standard, the State must 

prove by a preponderance of the evidence that the defendant was 

not a suspect for the crime to which the statement relates at 

the time of the interrogation. R. 3:17(b).

We recognize that this standard does not draw a "brightline" demarking interrogations that must be recorded versus 

those that need not, and that the judgment officers exercise in 

the moment may subsequently be questioned and scrutinized well 

after the fact. Of course, an easy answer to that problem is 

that all custodial interrogations conducted during 

investigations of crimes listed in the Rule should be recorded, 

and, indeed, at least one of our sister states has adopted that 
27 A-2658-12T3

practice. See Committee Report, supra, at 7 (describing 

practice in Alaska). Moreover, as already noted, practices in 

those states examined by the Committee explicitly required law 

enforcement officers to record interrogations of "suspects," not 

just defendants charged with predicate crimes. 

E.

In this case, although the judge did not expressly apply 

the objective standard we have now defined, we conclude that he 

did so implicitly. Defendant seizes on a snippet of the judge's 

written opinion in which he wrote, "both officers testified, 

defendant was a witness" when interrogated, and argues the judge 

applied a purely subjective test. We disagree.

Kelly explained that they knew defendant had been to the 

victim's house two evenings before his body was found, surmising 

defendant might have been the last person to have seen the 

victim alive, other than the victim's wife, who had, 

additionally, spoken to the victim the night before the body was 

found. The judge found that testimony to be believable, and, 

the testimony did not demonstrate that Kelly possessed other 

information pointing to defendant as a suspect. Kelly explained 

that only after the CDW reports indicated defendant had lied did 

defendant become a suspect. The judge credited this testimony, 

too, and concluded that defendant only became a suspect when "he
28 A-2658-12T3

indicated he wanted to talk" to Kelly. Notably, Kelly started 

the recording immediately thereafter.7 

It is easy in hindsight to say that defendant was an 

obvious suspect in the murder. But, the record reveals that, at 

the time defendant was arrested on municipal warrants, police 

only knew that he drove the victim's wife from her house to New 

York, and returned the family's car, two nights before the 

victim's body was found. Under these circumstances, the 

interrogators' belief that defendant was not a suspect in the 

murder was reasonable, and therefore there was no violation of 

the Rule.

Having reached that conclusion, we leave for another day 

consideration of what would be the appropriate remedy if the 

Rule was violated, and the judge failed to properly find a 

violation or charge the jury appropriately.

III.

At sentencing, the judge stated that he did "not intend to 

consider any other charge . . . than the charge that [defendant] 

 

7 We express some concern that Kelly testified he "confronted" 

defendant with the information from the CDW before defendant 

asked to speak to him alone. Defendant was clearly a suspect 

when Kelly realized he had lied about never returning to the 

Essex Fells house. However, it appears from the testimony that 

this was a fluid series of events that occurred in rapid 

succession and that the recording began immediately after 

defendant made his remark about Woodson. 
29 A-2658-12T3

was found guilty of . . . ." Citing defendant's extensive 

criminal history that included four prior indictable 

convictions, the judge found defendant was a "persistent 

offender." Focusing on the "violence . . . perpetrated," the 

judge found aggravating factor one. N.J.S.A. 2C:44-1(a)(1) 

("the nature and circumstances of the offense").8 He also found 

aggravating factor two, stating that defendant "knew or should 

have known that the victim of the offense was particularly 

vulnerable." See N.J.S.A. 2C:44-1(a)(2) ("[t]he gravity and 

seriousness of harm inflicted on the victim, including whether 

or not the defendant knew or reasonably should have known that 

the victim of the offense was particularly vulnerable or 

incapable of resistance due to advanced age"). Citing 

defendant's recidivism, the judge found aggravating factors 

three, six and nine. N.J.S.A. 2C:44-1(a)(3) (the risk of reoffense); (a)(6) (extent and seriousness of prior record); 

(a)(9) (the need to deter defendant and others). Again citing 

the victim's age, the judge found aggravating factor twelve. 

N.J.S.A. 2C:44-1(a)(12) (offense committed against a person 

 

8 We note that the judgment of conviction does not include a 

finding as to aggravating factor one. However, the judge's oral 

opinion controls. See State v. Warmbrun, 277 N.J. Super. 51, 58

n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).
30 A-2658-12T3

sixty years of age or older). The judge found no mitigating 

factors and imposed the sentence referenced above.

Defendant argues the judge mistakenly found aggravating 

factors one and two by relying "heavily on the facts of the very 

offenses that defendant was acquitted on." We agree.

We begin by noting that "[a]ppellate review of the length 

of a sentence is limited." State v. Miller, 205 N.J. 109, 127 

(2011). As the Court has recently reiterated:

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."

[State v. Fuentes, 217 N.J. 57, 70 (2014)

(alteration in original) (quoting State v. 

Roth, 95 N.J. 334, 364-65 (1984)).]

"When applying [factor one], 'the sentencing court reviews the 

severity of the defendant's crime, the single most important 

factor in the sentencing process, assessing the degree to which 

defendant's conduct has threatened the safety of its direct 

victims and the public.'" Id. at 74. (quoting State v. Lawless, 

214 N.J. 594, 609 (2013)). "[A] sentencing court may justify 

the application of aggravating factor one . . . by reference to 

the extraordinary brutality involved in an offense . . . . A 
31 A-2658-12T3

sentencing court may consider 'aggravating facts showing that 

[a] defendant's behavior extended to the extreme reaches of the 

prohibited behavior.'" Id. at 75 (alteration in original)

(citations omitted) (quoting State v. Henry, 418 N.J. Super.

481, 493 (Law. Div. 2010)). 

"[Aggravating factor two] compels 'a pragmatic assessment 

of the totality of harm inflicted by the offender on the 

victim.'" Lawless, supra, 214 N.J. at 610 (quoting State v. 

Kromphold, 162 N.J. 345, 358 (2000)). "It focuses on the 

setting of the offense itself with particular attention to any 

factors that rendered the victim vulnerable or incapable of 

resistance at the time of the crime." Id. at 611 (citing 

N.J.S.A. 2C:44-1(a)(2)).

Defendant was acquitted of all substantive offenses. The 

jury only found defendant responsible for the criminal agreement 

to commit the burglary, rejecting the claim, despite being 

appropriately charged, that defendant was legally responsible 

for Woodson's conduct either as an accomplice or co-conspirator. 

See N.J.S.A. 2C:2-6(b)(3) and (4) (making one "legally 

accountable for the conduct of another" if an accomplice of the 

other person or "engaged in a conspiracy" with the other 

person). 
32 A-2658-12T3

As a general proposition, "[a]lthough a defendant may be 

vicariously accountable for the crimes his accomplice commits, 

he is not vicariously accountable for aggravating factors that 

are not personal to him." State v. Rogers, 236 N.J. Super. 378, 

387 (App. Div. 1989), aff'd, 124 N.J. 113 (1991). In this case, 

defendant was not found vicariously culpable for the crimes of 

his co-defendant. Respecting that verdict as we must, the judge 

erred in attributing the violent, heinous acts of defendant's

co-defendant to defendant, and, while there is certainly support 

in the record for the judge's conclusion that defendant knew the 

victim was very old, the jury concluded he did not know that 

Woodson would do personal violence to the victim. 

We conclude it was error to find aggravating factors one 

and two on this record. We remand the matter to the trial court 

to re-sentence defendant without consideration of those two 

factors. We do not express any opinion as to the appropriate 

sentence.

Affirmed in part; reversed in part and remanded. We do not 

retain jurisdiction.