                        NOT FOR PUBLICATION WITHOUT THE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-4111-16T1

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

TYSHAUN D. CHRISTOPHER,

          Defendant-Appellant.
_________________________________

              Argued June 7, 2018 – Decided June 26, 2018

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              15-05-1341.

              Joshua D.     Sanders, Assistant Deputy Public
              Defender,    argued the cause for appellant
              (Joseph E.   Krakora, Public Defender, attorney;
              Joshua D.     Sanders, of counsel and on the
              brief).

              Natalie   A.   Schmid    Drummond,   Assistant
              Prosecutor, argued the cause for respondent
              (Mary Eva Colalillo, Camden County Prosecutor,
              attorney; Natalie A. Schmid Drummond, of
              counsel and on the brief).

PER CURIAM
     After the trial judge denied his motion to suppress a recorded

statement he gave to the police, defendant Tyshaun D. Christopher

pled guilty to two counts of first-degree robbery, N.J.S.A. 2C:15-

1.   In accordance with the negotiated plea, the judge sentenced

defendant to fourteen years in prison on each charge, subject to

the 85% parole ineligibility provisions of the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently with each

other.

     On appeal, defendant raises the following contentions:

           POINT I

           THE COURT'S DECISION FINDING ADMISSIBLE
           [DEFENDANT'S] STATEMENT VIOLATED HIS STATE
           PRIVILEGE AGAINST SELF-INCRIMINATION UNDER
           STATE V. REED BECAUSE THE STATE KNEW THAT HE
           WAS REPRESENTED BY COUNSEL.

           POINT II

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

After reviewing the record in light of the contentions advanced

on appeal, we affirm.

     The   relevant   facts   are   not    in   dispute.   Defendant    had

previously been sentenced to Drug Court probation.            He did not

attend a court session on May 13, 2013, and a bench warrant was

issued   for   his   arrest   ten   days   later.     Defendant   was   not

apprehended on the warrant for more than fifteen months.           At his


                                     2                             A-4111-16T1
first appearance on August 28, 2014, defendant filled out a form

asking for representation by the public defender on the Drug Court

matter.      However, the State did not charge defendant with a

violation of his Drug Court probation (VOP) until September 24,

2014.

       Prior to the filing of the VOP charge, Sergeant Paul Audino

of    the   Camden   County   Prosecutor's   Office   was   conducting    an

investigation of the armed robbery of two different victims that

also involved a shooting.         Based on a review of text messages

defendant exchanged with his sister, Sergeant Audino determined

that defendant was a suspect in these crimes.

       On September 16, 2014, Sergeant Audino picked up defendant

at the jail and took him to the prosecutor's office to interview

him concerning the robberies.       The sergeant did not know whether

defendant was represented by an attorney in connection with his

arrest on the bench warrant, and no attorney ever contacted him

to advise that defendant had legal representation available to him

at that time.

       At the prosecutor's office, Sergeant Audino advised defendant

of his Miranda1 rights, including his right to talk to or consult

with a lawyer, to have the lawyer present during questioning, to



1
     Miranda v. Arizona, 384 U.S. 436 (1966).

                                     3                             A-4111-16T1
stop the questioning at any time in order to consult with an

attorney, and to have a lawyer appointed for him if he wished.

Defendant orally waived his rights, and then signed the Miranda

form confirming his decision to proceed with the interview without

an attorney.    During the course of the interview, defendant made

inculpatory statements concerning his involvement in the offenses.

     At the suppression hearing, defendant relied upon our Supreme

Court's decision in State v. Tucker, 137 N.J. 259 (1994), and

argued   that   Sergeant   Audino   was   prohibited   from   speaking    to

defendant about the robberies because he may have been represented

by an attorney in connection with the Drug Court matter.           At the

conclusion of the hearing, Judge Steven J. Polansky rejected this

argument in a thorough oral decision.

     Because Tucker plainly does not support defendant's position,

we affirm Judge Polansky's determination substantially for the

reasons expressed in his opinion.         In Tucker, the Court held that

the Sixth Amendment was "offense specific" and could not "be

invoked once for all future prosecutions[.]"            137 N.J. at 276

(quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)).             Thus,

the Court ruled that "[i]f the offense under investigation is

based on essentially the same factual context as the charged

offense, assertion of the Sixth Amendment right to counsel on the

charged offense should bar police-initiated interrogation on the

                                     4                             A-4111-16T1
related offense."    Id. at 278. On the other hand, the Court stated

that the police may interview a represented defendant "concerning

a totally unrelated" offense.          Id. at 276 (quoting McNeil, 501

U.S. at 175-76).

     Applying    this     clear   holding,      Judge     Polansky      properly

determined   that    the    robbery        charges     Sergeant    Audino     was

investigating    were     completely       different     from,    and    totally

unrelated to, the bench warrant arrest for which defendant was

then incarcerated.      Indeed, no formal charges were pending against

defendant at the time of the interview, and the VOP charge would

not be lodged against him for eight more days.                   Therefore, the

judge correctly ruled that Sergeant Audino was not barred from

asking defendant to speak to him about the unrelated robberies,

and was not required to contact any attorney who may have been

representing defendant on the Drug Court warrant before conducting

the interview.

     For the first time on appeal,2 defendant argues in Point I

that the interrogation was improper in light of the Court's


2
  Defendant states in his brief that his attorney "inferentially"
raised an argument based on Reed at the suppression hearing.
However, the attorney did not mention this decision in the brief
he submitted in support of the suppression motion, or during oral
argument at the suppression hearing.     On appeal, we generally
decline to consider issues that were not presented to the trial
court in the first instance. State v. Robinson, 200 N.J. 1, 19


                                       5                                 A-4111-16T1
decision in State v. Reed, 133 N.J. 237 (1993), which was later

reiterated in State v. Cook, 179 N.J. 533 (2004).     However, Reed

is materially distinguishable from the matter at hand.

     In Reed, the defendant agreed to go to the prosecutor's office

to speak to the police about a homicide.       133 N.J. at 240-41.

Defendant's girlfriend accompanied him and once they arrived at

the office, she called an attorney to come and represent the

defendant.    Id. at 241.    Immediately thereafter, the girlfriend

told "a police officer that an attorney was on his way and asked

that the police not question [the] defendant until the attorney

arrived."    Ibid.

     The police then moved the defendant to another location, did

not tell him that an attorney had been retained and was on the

way, and proceeded to question him.      Id. at 241-42.   When the

attorney arrived at the prosecutor's office, he told the prosecutor

that he was there to represent the defendant. Id. at 242. However,

the prosecutor refused to let him speak to the defendant, and no

one advised the defendant that his attorney was present and asking

to speak to him.     Id. at 242-43.




(2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
However, because the State did not object to our consideration of
this argument on this basis, we will address defendant's
contention.

                                  6                         A-4111-16T1
     Based upon these unique facts, the Supreme Court ruled that

an attorney-client relationship "should be deemed to exist . . .

when the suspect's family or friends have retained the attorney

or where the attorney has represented or is representing the

suspect on another matter."   Id. at 261.   The Court then stated

its holding as follows:

          When, to the knowledge of the police, such an
          attorney is present or available, and the
          attorney has communicated a desire to confer
          with the suspect, the police must make that
          information known to the suspect before
          custodial   interrogation   can   proceed   or
          continue. Further, we hold that the failure
          of the police to give the suspect that
          information renders the suspect's subsequent
          waiver   of  the   privilege   against   self-
          incrimination invalid per se.

          [Id. at 261-62.]

     The Court further held that "[t]he duty to inform . . . is

narrow and specific.   It arises only where counsel has made known

that he or she has been retained to represent the person held in

custody, is present or readily available, and makes a request to

consult with the suspect" in a timely fashion.   Id. at 263-64.

     In Cook, the defendant was arrested on a disorderly persons

charge, but the police suspected he had been involved in a murder.

179 N.J. at 542.   While the defendant was in custody, a public

defender called a prosecutor to ask "whether the charges for which

[the] defendant was arrested . . . were of such a nature as to

                                 7                         A-4111-16T1
trigger    public    defender    representation."        Id.   at   551.    The

prosecutor replied in the negative.              Ibid.   The public defender

did not tell the prosecutor that he represented the defendant on

the disorderly persons offense or that he wished to speak to the

defendant.       Ibid.

       In its decision, the Court reiterated that Reed does not

permit     the    police   to    "thwart    an    existing     attorney-client

relationship" by refusing to advise a defendant that his or her

attorney is present or readily accessible before the defendant

executes a Miranda waiver.         179 N.J. at 551.       However, the Court

concluded that no such relationship existed in Cook because the

public defender did not represent the defendant on the disorderly

persons charge, and did not represent him in connection with the

murder investigation because the police had not yet filed any

charges in that matter.         Ibid.

       Applying the Court's "narrow and specific" ruling in Reed to

the facts in this case, we conclude that it provides no support

for defendant's contention that the police improperly questioned

him.     Unlike in Reed, no attorney had been retained to represent

defendant regarding his suspected involvement in the robberies

that were the subject of the interrogation.              While defendant had

requested public defender representation concerning his arrest on

the bench warrant, there is no documentation in the record to

                                        8                              A-4111-16T1
indicate whether that request had been granted or an attorney

assigned on this separate and unrelated matter.                  Moreover, even

if defendant had secured such representation, neither the bench

warrant nor a possible future VOP charge arising from a violation

of   his   Drug   Court   probation       would   have   been     substantially

intertwined with the new, unrelated offenses that were the subject

of the interrogation.

      Just as significantly, no attorney, whether formally assigned

or not, was "present or available" at the time Sergeant Audino

spoke to defendant, and no lawyer ever "communicated a desire to

confer with" defendant prior to the interrogation as required by

Reed.      133 N.J. at 262.        Thus, the State had no information

concerning any possible representation to convey to defendant at

the time Sergeant Audino began the interview. Therefore, we reject

defendant's contention on this point.

      In Point II, defendant argues that his sentence was excessive.

We disagree.

      Trial judges have broad sentencing discretion as long as the

sentence is based on competent credible evidence and fits within

the statutory framework.           State v. Dalziel, 182 N.J. 494, 500

(2005).      Judges     must   identify     and   consider       "any     relevant

aggravating and mitigating factors" that "are called to the court's

attention[,]"     and   "explain    how    they   arrived   at    a     particular

                                       9                                   A-4111-16T1
sentence."   State v. Case, 220 N.J. 49, 64-65 (2014) (quoting

State v. Blackmon, 202 N.J. 283, 297 (2010) and State v. Fuentes,

217 N.J. 57, 74 (2014)).     "Appellate review of sentencing is

deferential," and we therefore avoid substituting our judgment for

the judgment of the trial court.    Id. at 65.

     We are satisfied the judge made findings of fact concerning

aggravating and mitigating factors that were based on competent

and reasonably credible evidence in the record, and applied the

correct   sentencing   guidelines    enunciated   in   the     Code.

Accordingly, we discern no basis to second-guess the sentence.

     Affirmed.




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