                                 NOT FOR PUBLICATION WITHOUT THE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-5069-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CLETUS J. HONORE, JR.,

     Defendant-Appellant.
______________________________

                   Submitted March 19, 2019 – Decided May 1, 2019

                   Before Judges Fisher and Suter.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 16-12-1550.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Stephen P. Hunter, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Erin M. Campbell, Assistant Prosecutor,
                   on the brief).

PER CURIAM
      In the early morning hours of August 28, 2015 in Jersey City, Milton

Ramirez was walking with his girlfriend to buy cigarettes when an approaching

car slowed down. He could see that the driver's side window was open. Two

people were inside: the driver and passenger. The driver looked at him. Ramirez

saw a gun followed by a flash. He testified he was shot in the chest by the driver

when he was only five to eight feet away. Ramirez did not recognize the driver

nor did he have any idea why he was shot. He was not able to identify defendant

from a photographic array. The bullet that injured him was never recovered.

      The car drove off as Ramirez collapsed in the street. A patrolman testified

that he and his partner were in the area because of an earlier report about shots

being fired. They joined the chase of a silver Acura by three other police cars

that had their lights and sirens activated. The patrolman's vehicle could not keep

up to the chase. Shortly after, the patrolman saw that the Acura was turned

around in the street facing the wrong way after it crashed. The driver's side

window was down. Michael Lewis was being taken out of the passenger seat

and another person, defendant Cletus J. Honore, Jr., was being placed in custody

at a nearby storage facility. The officer found a Ruger single action pistol about

ten feet from defendant's location.




                                                                          A-5069-16T3
                                        2
      At the conclusion of a jury trial, defendant was acquitted of first-degree

attempted murder, N.J.S.A. 2C:5-1(a)(1), but convicted on four other charges,

including: second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b); second-degree possession of a handgun for an unlawful purpose, N.J.S.A.

2C:39-4(a); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and

second-degree eluding, N.J.S.A. 2C:29-2(b).1 He was sentenced to ten years in

prison subject to a five-year period of parole ineligibility for unlawful

possession of a handgun. The aggravated assault and possession of a handgun

charges were merged. Defendant was sentenced to a concurrent ten-year term

for second-degree unlawful possession of a handgun with an eighty-five percent

period of parole ineligibility and three years of parole supervision upon release;

and a seven-year term for eluding that was also to be concurrently served.

      Defendant appeals his convictions and sentence. He argues the court erred

(1) by admitting in evidence statements he made to the police after his arrest,

(2) by instructing the jury on "flight" without explaining the State's required

burden of proof, and (3) by failing to properly weigh aggravating and mitigating




1
  The State withdrew the charge of third-degree receiving stolen property,
N.J.S.A. 2C:20-7.
                                                                          A-5069-16T3
                                        3
factors resulting in an excessive sentence. We reject these arguments and

affirm.

                                        I

      "An appellate court reviewing a motion to suppress evidence in a criminal

case must uphold the factual findings underlying the trial court's decision,

provided that those findings are 'supported by sufficient credible evidence in the

record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven,

226 N.J. 20, 40 (2016)). We do so "because those findings '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.'" State v. Gamble, 218

N.J. 412, 424-25 (2014) (alterations in original) (quoting State v. Johnson, 42

N.J. 146, 161 (1964)). "'A trial court's findings should be disturbed only if they

are so clearly mistaken that the interests of justice demand intervention and

correction.'" State v. A.M., __ N.J. __, __ (2019) (slip op. at 11) (quoting State

v. Elders, 192 N.J. 224, 244 (2007)). We owe no deference, however, to

conclusions of law made by trial courts in suppression decisions, "which we

instead review de novo." Boone, 232 N.J. at 426.




                                                                          A-5069-16T3
                                        4
       "Under Miranda[2], prior to any custodial interrogation, an accused must

be advised of the Fifth Amendment right to remain silent and to have an attorney

present during questioning." State v. Chew, 150 N.J. 30, 61 (1997) (quoting

Michigan v. Mosley, 423 U.S. 96, 103 (1975)). "The administration of Miranda

warnings3 ensures that a defendant's right against self-incrimination is protected

in the inherently coercive atmosphere of custodial interrogation." A.M., __ N.J.

__ (slip op. 13). However, "[t]he burden is on the prosecution to demonstrate

not only that the individual was informed of his rights, but also that he has

knowingly, voluntarily, and intelligently waived those rights, before any

evidence acquired through the 'interrogation can be used against him.'"

Nyhammer, 197 N.J. at 400-01 (quoting Miranda, 384 U.S. at 479).

       The waiver of Miranda rights "may 'never be the product of police

coercion.'" A.M., __ N.J. __ (slip op.13). A court must determine "whether the

suspect understood that he did not have to speak, the consequences of speaking,



2
    Miranda v. Arizona, 384 U.S. 436 (1966).
3
  The warnings include: "(1) that [the person] has the right to remain silent, (2)
that anything he says can be used against him in a court of law, (3) that he has
the right to the presence of an attorney, and (4) that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he so desires."
State v. Nyhammer, 197 N.J. 383, 400 (2009) (quoting Miranda, 384 U.S. at
479).
                                                                          A-5069-16T3
                                        5
and that he had the right to counsel before doing so if he wished." Nyhammer,

197 N.J. at 402. As the Court in A.M. recently instructed: "[a]ccordingly, 'a

valid waiver does not require that an individual be informed of all information

useful in making his decision.' Instead, a knowing, intelligent, and voluntary

waiver is determined by the totality of the circumstances surrounding the

custodial interrogation based on the fact-based assessments of the trial court."

Id. at 14-15 (internal citations and quotation marks omitted).

      Detective Joseph Chadicamo testified at the Miranda hearing that he and

his partner, Detective Ortega, questioned defendant after his arrest. From 3:46

a.m., when the videotaping started, until 4:08 a.m., when defendant signed the

Miranda rights and waiver statement waiving his rights, Chadicamo testified that

he and Ortega read defendant the charges against him and his rights, did not

have any substantive conversation with defendant prior to advising him about

his rights and did not make any promises or threats.

      The videotape showed Chadicamo advised defendant about the charges

against him, which included attempted murder. Defendant immediately reacted

saying "attempt to murder? . . . I ain't trying to murder nobody, sir." As

Chadicamo, and then his partner, read the warnings and waiver form to

defendant, he continually tried to explain his lack of involvement with the


                                                                        A-5069-16T3
                                        6
shooting. Many times the detective explained "we got to get through this first.

So if you want to talk and tell us your side of the story, this is your opportunity.

But we got to get through this first," meaning the explanation of his rights.

      Defendant's argument centers on two portions of the videotape.

            DETECTIVE CHADICAMO: These -- all these -- all
            things that we need to talk to you about and we can't do
            it until you sign. That's it. All right.

            DEFENDANT: I don't carry guns. I don't shoot people.
            I can't even see my girl -- West Orange.

            DETECTIVE CHADICAMO: --

            MR. HONORE: Oh, my god. Do I need a lawyer to
            sign this?

            DETECTIVE CHADICAMO: You don't need a lawyer.
            These are your rights.

            DETECTIVE ORTEGA: These are your rights.

            DETECTIVE CHADICAMO: You're right once you
            don't, you know, if you waive that right --

            DEFENDANT: Yo --

            DETECTIVE CHADICAMO: If you waive that right,
            that's right there. That just says you understand and you
            will talk to us.

            DEFENDANT: If I talk to you are you -- believe
            anything I tell you cause it's god's truth, I'm telling you,
            bro.


                                                                            A-5069-16T3
                                         7
            DETECTIVE ORTEGA: Yes.

            DEFENDANT: Just don't try and trick me, please, yo.

The following exchange occurred shortly after that:

            DEFENDANT: Please call my mother and my
            girlfriend and tell -- please.

            DETECTIVE CHADICAMO: Once we speak to you,
            make your phone call and you can call your mother --

            DEFENDANT: I didn't do attempted murder, no --

            DETECTIVE CHADICAMO: Okay. That's fine. But
            you need to sign this. If you don't sign this our
            interview is over.

            DEFENDANT: Oh, I don't need a lawyer to sign this?

            DETECTIVE ORTEGA: You do not need a lawyer.
            These are your rights -- you have, look, these are all
            your rights. Look, read them here. There are 1, 2, 3
            and 4 and 5.

            DEFENDANT: Murder.

            DETECTIVE ORTEGA: Okay?

Defendant told the detectives he wanted to talk to them and they explained he

had to understand his rights first.

            DETECTIVE CHADICAMO: Okay. Sign it and we
            can talk. That's it.

            DEFENDANT: -- sign --


                                                                      A-5069-16T3
                                      8
            DETECTIVE CHADICAMO: I don't know                       --
            everything -- everything is on tape right now.

            DETECTIVE ORTEGA: Everything we're doing is to
            protect you right now, Cletus. If you don't – if you don't
            sign these rights that you understand these rights, we
            can't talk to you. You understand? That's the law. That
            is the law.

            DETECTIVE CHADICAMO: We're not trying to break
            it. We're trying to follow it.

            DETECTIVE ORTEGA: We have to give you this.
            This is your -- this is your constitutional --

            DEFENDANT: -- got shot tonight.

            DETECTIVE ORTEGA: We can't talk to you until you
            sign this, right? This is your constitutional right, your
            rights.

The detectives stepped out for defendant to "compose" himself. They explained

he was going to go to the county jail whether he signed the warnings and waiver

form or not, and he could place a call from the jail. Detective Ortega told

defendant these were his rights "as a – as a human, as an American citizen." As

the detectives completed the rights, defendant was asked more than once did he

understand, responding "[o]h, good god," and then repeatedly saying, "I'm going

to sign . . . I'm signing," and then "[c]an you just talk to me please?" Defendant

signed the warnings and waiver form twice and wrote the word "yes." The

detectives then questioned defendant about the shooting.

                                                                          A-5069-16T3
                                        9
       The court found defendant's waiver of his Miranda rights was "voluntary,

knowing and intelligent." Although defendant did ask twice whether he needed

an attorney to sign the warnings and waiver form, the court said this was not a

request for counsel. The police were obligated only to "inform a defendant that

he has the right to a lawyer." Defendant's only "confusion" was whether by

signing the waiver he was admitting to attempted murder. The court observed

that defendant appeared able to read and that the police were not aggressive to

him.

       Defendant contends Detective Chadicamo gave inaccurate and misleading

responses to him when he asked if he needed a lawyer to sign the warnings and

waiver form, and the detective said no. We do not agree that the exchange

invalidated defendant's Miranda waiver.

       "When a suspect makes a statement that could be interpreted as a request

for an attorney, the questioning must cease until an attorney has been made

available or the accused 'initiates further communication, exchanges or

conversation with the police.'" State v. Messino, 378 N.J. Super. 559, 577 (App.

Div. 2005) (quoting Chew, 150 N.J. at 61). However, a defendant has not

requested an attorney when he simply asks the investigating officer for advice.

State v. Alston, 204 N.J. 614, 625-26 (2009).


                                                                        A-5069-16T3
                                      10
      In Alston, the defendant asked, "should I not have a lawyer in here with

me?" immediately after acknowledging that he understood and waived his rights.

204 N.J. at 618. Although the detective asked whether defendant wanted a

lawyer, he replied "No, I am asking you guys." Ibid. The Court held the

defendant did not assert a right "ambiguous or otherwise" when asked should he

have a lawyer.    Id. at 625-26.    "Rather, it was a question, posed to the

investigating officer, that amounted to defendant's request for advice about what

the detective thought that defendant should do." Id. at 626. The detective's

response to defendant, "I can't make you" and "that's . . . on you" was "entirely

appropriate under the circumstances." Id. at 626-27.

      In Messino, the defendant asked the officer "do you think I need a lawyer,"

and he responded that was "[the defendant's] call." 378 N.J. Super. at 573. We

held this interchange was not a request for counsel; defendant had been told he

had a right to a lawyer and he could have requested one but did not. Id. at 578.

      Defendant asked Detective Chadicamo for advice. Under Alston and

Messino, this type of question did not constitute an "ambiguous" statement

requesting an attorney. Defendant does not even argue this; his only argument

is that it was misleading for Detective Chadicamo to respond to defendant that

he did not need a lawyer to acknowledge he understood his rights.           That


                                                                         A-5069-16T3
                                      11
defendant wanted to speak with the police was abundantly clear from the

transcript.   Both detectives tried repeatedly to stop defendant from saying

anything until he acknowledged his rights. The detective advised defendant he

had the right to consult with an attorney and to have one present. The detective's

response to defendant's question essentially was that defendant did not need an

attorney to decide whether he needed an attorney.        This response was not

misleading nor did it change defendant's question into an ambiguous request for

counsel. We agree with the trial court that defendant's waiver of his rights was

not constitutionally infirm.

                                        II

      Defendant argues the court erred in instructing the jury about flight as

evidence of consciousness of defendant's guilt. He argues the court should have

explained that the State had the burden to prove flight by a preponderance of the

evidence. Because defendant did not object to the flight charge once it was

amended and did not raise the burden of proof issue before the trial court, we

review this charge under the plain error standard to determine whether it was

"clearly capable of producing an unjust result." R. 2:10-2.

      In the statement played to the jury at trial, defendant told the detectives

that he and his friend, Michael Lewis, drove in his Acura from West Orange,


                                                                          A-5069-16T3
                                       12
where defendant lived, to Jersey City to visit defendant's girlfriend and that

someone fired three shots at his car. Defendant claimed one of the bullets went

through his car near his knee. When that happened, he rapidly drove out of the

area because he thought someone was "chasing him, trying to kill him." He

claimed he was not aware he was being pursued by the police. At some point,

defendant lost control of his vehicle, and it turned around in the road, although

he still did not see any police cars. He ran away from his car until he heard the

police tell him to get on the ground, and he was arrested.

      Defendant told the police that he did not have a gun.         Later in the

statement, he claimed that Lewis had a "long ass gun -- cowboy looking Will

Smith gun --" with him. According to defendant, it was Lewis who leaned across

from the passenger side in front of defendant and shot out of the driver's side

window, striking a "random" person. Defendant drove away quickly. After the

crash, Lewis told defendant to run with the gun.

      Lewis' testimony at trial contradicted defendant's statement. He testified

at trial that defendant had a black revolver on the night of the shooting. They

were "hanging out" with defendant's girlfriend and others when "it got a little

rocky" meaning they "got a little aggressive with [defendant and Lewis]."

Defendant had a "shoving match" and "then it escalated." Lewis claimed that


                                                                         A-5069-16T3
                                      13
defendant shot off three rounds from the gun. They got back in the car and left.

Lewis testified that shortly after, defendant then shot a victim from the car who

was not involved in the earlier incident. They drove off but then were pursued

by the police until defendant had an accident with the car. After the crash, Lewis

stayed with the car but defendant ran. Lewis testified pursuant to a plea deal.

       When the State requested an instruction to the jury on flight as

consciousness of guilt, defendant objected. His counsel argued that he did not

flee the police because he thought the people who had shot at him were chasing

him.   The court rejected this argument but edited the proposed instruction

because he observed that the defense did not have to suggest any explanation for

the flight.4

       The court instructed the jury as follows:

               Now, there has been some testimony in this case from
               which you may infer that the defendant, Mr. Honore,
               fled shortly after the commission of the crime. The
               defendant, Mr. Honore, denies that the acts constituted
               flight. The question of whether the defendant fled after
               the commission of the crime is another question of fact
               for you, the jury, to determine. Mere departure from a
               place where a crime has been committed does not
               constitute flight. If you find that the defendant, that's
               Mr. Honore, fearing that an accusation or arrest was

4
  The court removed: "The defense has suggested the following explanation.
The defendant was fleeing a dangerous scene. If you find defendant 's
explanation credible, you should not draw any inference."
                                                                           A-5069-16T3
                                         14
            made against him on the -- on the charge involving the
            indictment took refuge and flight for the purpose of
            evading the accusation or arrest on that charge, then
            you may consider such flight in connection with all the
            other evidence in the case as an indication or proof of
            consciousness of guilt. Flight may only be considered
            as evidence of consciousness of guilt if you should
            determine that the defendant's purpose in leaving was
            to evade accusation or arrest for the -- for the offense
            charged in the indictment.

            There has been some testimony in the case from which
            you may infer that the defendant fled shortly after the
            alleged commission of the crime.             If after a
            consideration of all the evidence you find that the
            defendant, that's Mr. Honore, fearing that an accusation
            or arrest would be made against him on the charge
            involved in the indictment took refuge in flight for the
            purpose of evading the accusation or arrest, then you
            may consider such flight in connection with all the
            other evidence in the case as an indication or proof of a
            consciousness of guilt. It is for you as judges of the
            facts to decide whether or not evidence of flight shows
            a consciousness of guilt and the weight to be given such
            evidence in light of all the other evidence in this case.

Defendant did not object to this charge. A copy of the entire charge was

provided to the jury during its deliberations.

      "[A]ppropriate and proper [jury] charges are essential for a fair trial."

State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J.

553, 613 (2004)). In reviewing the adequacy of the judge's charge to the jury,

we must consider the charge as a whole in determining whether it was


                                                                        A-5069-16T3
                                       15
prejudicial. See State v. Figueroa, 190 N.J. 219, 246 (2007) (citing State v.

Wilbely, 63 N.J. 420, 422 (1973)).

      Instructions on flight "may be evidential of consciousness of guilt,

provided the flight pertains to the crime charged." State v. Randolph, 228 N.J.

566, 594 (2017). A jury instruction on flight requires the jury to first find that

there was a departure and then to find that the motive for the departure was an

attempt to avoid arrest or prosecution on the charged offense. State v. Mann,

132 N.J. 410, 421 (1993) (citing State v. Wilson, 57 N.J. 39, 49 (1970)).

      Defendant's counsel initially objected to the State's request for an

instruction on flight because defendant's statement to the police indicated he was

not fleeing the police but from people he claimed shot at him. The trial court

disagreed because defendant continued to flee until he had an accident, and

granted the State's request for an instruction. The proposed instruction included

a few sentences that would have explained why defendant was fleeing. The

court took those out because defendant did not have to suggest any explanation

for flight. As edited, the flight charge was very similar to the model jury charge.

Defendant did not object to the edited charge.

      We do not agree that this charge warrants reversal of defendant's

conviction because it did not separately address the burden of proof. The court


                                                                           A-5069-16T3
                                       16
repeatedly instructed the jury that the State had the burden of proof on every

issue. Before the summations by counsel, the court advised the jury that it was

to decide "whether the State has proven the guilt of the defendant on each

charge." In her closing, defendant's counsel reminded the jury that the court

said "the State has the burden of proof here. I'm under no obligation ." In the

charge prior to the instruction on flight, the court explained that defendant was

presumed innocent and that the State had to prove every element of the offenses

charged beyond a reasonable doubt. He reminded the jury that the State's burden

"never shifts to the defendant. The defendant does not have to produce evidence

that proves the guilt of another." Very shortly after the flight charge, the court

instructed the jury about the criminal code stating again that the State had to

prove defendant was guilty of the crimes charged in the indictment beyond a

reasonable doubt.    Because defendant also was charged with the crime of

alluding an officer, the court instructed the jury that the State had to prove

beyond a reasonable doubt that defendant knew the police were pursuing him

and knowingly fled or eluded the police.

      Neither the court's instruction about flight as consciousness of guilt nor

the model charge expressly said that the State had to prove flight by a

preponderance of the evidence. However, we are to review the charge as a whole


                                                                          A-5069-16T3
                                       17
to determine whether it was prejudicial. We think it was clear, looking at this

charge as a whole, that the State bore the burden of proof throughout the trial

and that the lack of a specific instruction about burden of proof within the flight

charge did not prejudice defendant. If anything, because defendant had been

charged with alluding, the jury could well have thought the State had the burden

to prove all flight by proof beyond a reasonable doubt. Thus, considering the

flight charge 5 in the context of the entire jury charge, there was no error, much

less plain error, "clearly capable of producing an unjust result." R. 2:10-2.

                                        III

      At the sentencing hearing, the court found aggravating factor number

three, the risk that defendant will commit another offense, N.J.S.A. 2C:44-

1(a)(3), because the jury convicted him of four crimes and there was a risk he

would commit another offense. The court also found aggravating factor nine,

the need for deterrence, N.J.S.A. 2C:44-1(a)(9), because defendant was a young

man and there was a need to deter him and others from violating the law,

possessing a gun, and severely injuring a victim. The court found mitigating

factor seven, no adult criminal record, N.J.S.A. 2C:44-1(b)(7), because


5
   In responding to defendant's argument, we do not mean to suggest that we
believe the preponderance standard applies instead of the reasonable-doubt
standard. On that question, we neither express nor intimate any view.
                                                                           A-5069-16T3
                                       18
defendant had no adult criminal record, although he did have a record as a

juvenile. The court stated it was not double counting any aggravating factors

under State v. Fuentes, 217 N.J. 57 (2014), because it did not find factor one,

the nature of the crime must be heinous, N.J.S.A. 2C:44-1(a)(1), or two, a unique

harm inflicted on an individual, N.J.S.A. 2C:44-1(a)(2), even though the

shooting was "totally senseless." The court analyzed the Yarbough6 factors and

decided that defendant's sentences all were to be concurrent.

       We do not agree with defendant's argument that his sentence was

excessive and review the judge's sentencing decision under an abuse of

discretion standard. Fuentes, 217 N.J. at 70. We must determine whether:

             (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. (alterations in original) (quoting State v. Roth, 95
             N.J. 334, 364-65 (1984)).]

       The sentencing guidelines provide that a person who has been convicted

of a second-degree crime may be sentenced to a term between five and ten years.



6
    State v. Yarbough, 100 N.J. 627, 643-44 (1985).
                                                                           A-5069-16T3
                                        19
N.J.S.A. 2C:43-6(a)(2). All of defendant's convictions were second-degree

crimes. He was sentenced to two ten-year terms and a seven-year term, all to be

served concurrently. This was within the guidelines.

      Defendant contends the court did not properly weigh the aggravating and

mitigating factors. "A judge's sentencing analysis is a fact-sensitive inquiry,

which must be based on consideration of all the competent and credible evidence

raised by the parties at sentencing." State v. Jaffe, 220 N.J. 114, 116 (2014).

Where the aggravating factors predominate, the sentence imposed can be toward

the higher end of the range, giving appropriate weight to all the factors. State

v. Case, 220 N.J. 49, 64-65 (2014).

      The court found aggravating factors three, the risk that defendant will

commit another offense, and nine, the need for deterrence, and mitigating factor

seven, no adult record. We are satisfied the court did not abuse its discretion in

finding these factors and sentencing defendant.        There was evidence that

defendant simply shot randomly at the victim hitting him in the chest at close

range. The court noted the need to deter defendant and others from this type of

senseless crime. The court took into consideration that defendant was convicted

of multiple offenses. Although defendant did not have a record as an adult, and

the court counted that among the mitigating factors, defendant had been


                                                                          A-5069-16T3
                                       20
adjudicated as a juvenile. The court also carefully considered the factors under

Yarbough in crafting an aggregate sentence that was at the high end for a second-

degree crime but where all the sentences were to be served concurrently. On

this record, the court neither abused its discretion in sentencing defendant nor

did the sentence shock one's conscience, given the offenses.

      Affirmed.




                                                                         A-5069-16T3
                                      21
