STATE OF NEW JERSEY VS. BLONSON FLORESTAL (15-04-0466, BERGEN COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-0851-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BLONSON FLORESTAL, a/k/a
ROLLACK BOLLAT,

     Defendant-Appellant.
___________________________

                   Argued January 26, 2021 – Decided March 29, 2021

                   Before Judges Gilson, Moynihan and Gummer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 15-04-0466.

                   Melanie K. Dellplain, Deputy Public Defender, argued
                   the cause for appellant (Joseph E. Krakora, Public
                   Defender, attorney; Joseph J. Russo, Deputy Public
                   Defender, of counsel and on the brief).

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

      Indicted on twenty-three counts for crimes allegedly committed during a

planned home invasion that resulted in the shooting-death of one victim,

defendant Blonson Forestal pleaded guilty pursuant to a plea agreement to first-

degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as amended from

murder, N.J.S.A. 2C:11-3(a)(1), (2). As part of the plea agreement, under which

he was sentenced to a twenty-year prison term, defendant specifically reserved

the right to appeal from the trial court's denial of his motion to suppress the

custodial statements he had given to detectives. On appeal, he argues:

            POINT I

            [DEFENDANT'S]     STATEMENT       WAS
            IMPROPERLY RULED ADMISSIBLE BECAUSE
            THE WAIVER OF HIS PREVIOUSLY ASSERTED
            RIGHT TO COUNSEL WAS OBTAINED THROUGH
            THE    FUNCTIONAL     EQUIVALENT   OF
            CONTINUED INTERROGATION.

            POINT II

            [DEFENDANT'S] SENTENCE IS EXCESSIVE AND
            MUST BE REDUCED.

We see no merit to defendant's challenge to the denial of his suppression motion

but remand for resentencing.



                                                                          A-0851-18
                                       2
       Defendant argues the detectives who initially interviewed him continued

the functional equivalent of interrogation after he invoked his right to counsel

by placing him in a holding cell adjacent to an interview room in order to have

defendant hear his codefendants' statements to the police. In his merits brief he

contends police knew he "could hear [codefendant Evens] Dumas tell the

detectives interviewing him that he did not want to be blamed for a murder he

did not commit," and he "could also hear co[]defendant [Keshawn] Malone make

'certain admissions pertaining to the homicide.'       After hearing his putative

co[]defendants make various admissions, a fact known to law enforcement,

[defendant] 'notified [the officers that] he wanted to talk about the incident [,]'"

leading to his admission that he had participated in the homicide by driving the

vehicle to the site of the robbery.

       Defendant, however, did not raise this argument to the trial court. During

oral argument following the testimonial segment of the Miranda1 hearing, his

counsel argued to the trial court the interviewing detectives had lied to defendant

that he: matched "a general description given by the individuals . . . at the scene

of the home invasion"; was "pick[ed] . . . out of a lineup"; and was seen on

surveillance video "going and coming." Notably, he also argued defendant


1
    Miranda v. Arizona, 

384 U.S. 436

(1966).
                                                                              A-0851-18
                                         3
            was also told that the other two co[]defendants had
            named him. That [was] not true. He was told,
            additionally, that they had indicated that he was in the
            house. That is not true. Judge, those are small things
            and I'm sure in the scheme of things—and I know that
            the police are actually allowed to lie during the course
            of an interrogation, but [counsel was] troubled by those
            things[.][2]

His challenge was based on what the police had told him, not what he had heard

his codefendants admit. The trial court acknowledged and addressed those

arguments in its written decision, understandably without mention of any of

defendant's present arguments.

      Thus, the State, in meeting its burden to prove defendant's statement was

voluntary, State v. Yough, 

49 N.J. 587

, 597 (1967), did not elicit evidence

regarding defendant's placement in a holding cell adjacent to the interview room.

The record is, therefore, bereft of proofs relating to the layout of the police

facility; we do not know if there were other cells in which defendant could have

been placed that were not within earshot of a person detained in the cell.

Moreover, because his argument to the trial court involved only what he was



2
   Defendant also claimed his statement should have been suppressed because
"there was about ten hours['] worth of interrogation before [he] actually began
to speak[,]" during which he had been transported for processing and that he had
told the detectives, "I'm going to stop talking now." Those claims are not at
issue on appeal.
                                                                           A-0851-18
                                       4
told by police, there is no evidence of what the codefendants had said

implicating or even regarding defendant, what defendant had heard from the

holding cell or what statements had prompted defendant to re-engage the

detectives.

      Defendant's present argument is based on the United States Supreme

Court's holding in Rhode Island v. Innis, 

446 U.S. 291

(1980), and its progeny.

In Innis, the Court explained that

              the term "interrogation" under Miranda refers not only
              to express questioning, but also to any words or actions
              on the part of the police (other than those normally
              attendant to arrest and custody) that the police should
              know are reasonably likely to elicit an incriminating
              response [whether inculpatory or exculpatory] from the
              suspect.

              [446 U.S. at 301 (footnotes omitted).]

The Court reasoned:

              The latter portion of this definition focuses primarily
              upon the perceptions of the suspect, rather than the
              intent of the police. This focus reflects the fact that the
              Miranda safeguards were designed to vest a suspect in
              custody with an added measure of protection against
              coercive police practices, without regard to objective
              proof of the underlying intent of the police. A practice
              that the police should know is reasonably likely to
              evoke an incriminating response from a suspect thus
              amounts to interrogation. But, since the police surely
              cannot be held accountable for the unforeseeable results
              of their words or actions, the definition of interrogation

                                                                            A-0851-18
                                          5
             can extend only to words or actions on the part of police
             officers that they should have known were reasonably
             likely to elicit an incriminating response.

             [Id. at 301-02 (footnotes omitted).]

      The Court reviewed two officers' conversation while transporting Innis to

the police station after he had invoked his right to counsel, during which one

officer expressed his concern that handicapped children attending a school near

a murder scene might find the murder weapon—a shotgun—and be fatally

injured.

Id. at 294-95.

Innis interrupted the officers' conversation and told them

he wanted to show them where the gun was located, later telling police "that he

understood those rights but that he 'wanted to get the gun out of the way because

of the kids in the area in the school.'"

Id. at 295.

      The Court ruled the officers' conversation was not the equivalent of

interrogation,

             [g]iven the fact that the entire conversation appears to
             have consisted of no more than a few off hand remarks,
             we cannot say that the officers should have known that
             it was reasonably likely that Innis would so respond.
             This is not a case where the police carried on a lengthy
             harangue in the presence of the suspect. Nor does the
             record support the respondent's contention that, under
             the circumstances, the officers' comments were
             particularly "evocative." It is our view, therefore, that
             the respondent was not subjected by the police to words
             or actions that the police should have known were


                                                                            A-0851-18
                                         6
            reasonably likely to elicit an incriminating response
            from him.

            [Id. at 303.]

      Under like analysis, we are convinced the detectives' placement of

defendant in the holding cell was insufficient to establish that the police should

have known their action would elicit defendant's request to talk to them about

the homicide. Even if the detectives knew defendant could hear from the

holding cell what was being said in the interview room, there is no evidence they

knew what the codefendants would say, much less that the codefendants would

implicate defendant or say something that would cause defendant to re-engage

the detectives in an interview.

      Furthermore, this was not the case, as in Innis and other cases—from New

Jersey and other jurisdictions—cited by defendant in his merits brief, where the

defendant was directly confronted by police with information. See, e.g., State

v. Wright, 

444 N.J. Super. 347

, 365-67 (App. Div. 2016) (concluding an officer

who provided updates to a defendant on the progress of the investigation should

have known his actions would likely elicit an incriminating response); State v.

Ward, 

240 N.J. Super. 412

, 416-19 (App. Div. 1990) (requiring Miranda

warnings where a defendant "was confronted in his cell by the [d]etective in

charge of the robbery investigation, told of the robbery and of the formal charge

                                                                            A-0851-18
                                        7
against him, and then shown the pictures" of the robbers because it was the

functional equivalent of interrogation). There is no evidence defendant was

confronted by the detectives with any information while in the holding cell. We

do not accept defendant's leap, unsupported by any evidence, that the detectives

hoped to elicit statements from the codefendants that would be heard by

defendant, the content of which would be sufficient to cause defendant to waive

his right to counsel and wish to be reinterviewed.

      Accordingly, we perceive no reason to reverse the trial court's denial of

defendant's motion to suppress his statement.

      In sentencing defendant, the trial court found aggravating factor three, the

risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3). In

doing so, the court said:

            I know he has a prior offense that was not indicted, but
            there's a risk. I find that risk though is low for several
            reasons. One, he's going to be in jail for significant—
            state prison for a significant amount of time. But I do
            believe he is truthful that he is trying to better himself.
            And I hope when he does come out that he—I don't see
            him again as he says.

      We do not discern that the court based the aggravating factor on the prior

offense for which a "no bill" was returned. See State v. Green, 

62 N.J. 547

, 571

(1973), overruled on other grounds by State v. K.S., 

220 N.J. 190

(2015)


                                                                            A-0851-18
                                        8
(holding while a charge that does not result in a conviction may be considered

in sentencing, "[t]he important limitation of course is that the [court] shall not

infer guilt as to any underlying charge with respect to which the defendant does

not admit his guilt"). The court found the aggravating factor notwithstanding

that offense, stating, "but there's a risk." The court, however, gave no reason

for that finding, compelling our remand.

      We recognize defendant received the exact sentence bargained for:

twenty years in State prison subject to the No Early Release Act, N.J.S.A. 2C:43-

7.2, and, contrary to defendant's merits-brief argument, that was not the

maximum sentence that could have been imposed for aggravated manslaughter.3

But "[m]erely enumerating [the statutory] factors does not provide any insight

into the sentencing decision[.]" State v. Kruse, 

105 N.J. 354

, 363 (1987). A

court must state on the record its findings on the applicability of the aggravating

and mitigating factors, and the underlying factual basis for those findings.

N.J.S.A. 2C:43-2(e); R. 3:21-4(g). We remand for the court to comply with that

mandate.




3
 The statutory maximum sentence for aggravated manslaughter is thirty years.
N.J.S.A. 2C:11-4(c).
                                                                             A-0851-18
                                        9
      Turning to defendant's Rule 2:6-11(d) submission, urging the application

of the recently enacted statute adding as a mitigating factor—that "[t]he

defendant was under [twenty-six] years of age at the time of the commission of

the offense[,]" N.J.S.A. 2C:44(1)(b)(14)—we note the trial court found

defendant's youth as a mitigating factor: "And I give him credit, although not

statutory, that he is a youthful offender." 4 Thus, we do not address defendant's

contention that the new statute, N.J.S.A. 2C:44(1)(b)(14), must be considered.

It already was, albeit prior to its effective date of October 19, 2020, over twenty-

two months after defendant—then almost twenty-four years old—was

sentenced.

      Affirmed but remanded for resentencing consistent with this opinion. We

do not retain jurisdiction.




4
  The court added that it found defendant "was, in fact, perhaps influenced by
people older than him in this." See N.J.S.A. 2C:44-1(b)(13).
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                                        10

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