                                NOT FOR PUBLICATION WITHOUT THE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-1141-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ZAKARIYYA AHMAD,

     Defendant-Appellant.
___________________________

                    Submitted September 16, 2019 – Decided November 18, 2019

                    Before Judges Rothstadt, Moynihan and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 15-03-0640.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Stefan Van Jura, Deputy Public Defender, of
                    counsel and on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Stephen Anton
                    Pogany, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
         Defendant Zakariyya Ahmad appeals from his conviction, following a jury

trial, of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), as a

lesser included offense on count three, as well as all other indicted charges. 1

         The charges stemmed from a robbery or attempted robbery of a café on

October 27, 2013, by defendant and two codefendants, Ja-Ki Crawford and

Daryl Cline during which Joseph Flagg was shot and killed. On the same day,

as admitted in defendant's merits brief, defendant was treated at a hospital for

multiple gunshot wounds.

         Rahsaan Johnson, a detective with the Essex County Prosecutor's Office,

testified at both a hearing on defendant's motion to suppress his statement to

Johnson and another detective and at trial. Johnson claimed he became aware

that defendant had been shot and believed the same person or persons who shot

Flagg also shot defendant. He consequently interviewed defendant on October

27, 2013, and obtained a statement which was played to the jury at defendant's

trial.


1
   Defendant was indicted for second-degree conspiracy to commit robbery,
N.J.S.A. 2C:5-2 and 15-1(a)(1) (count one); first-degree robbery, N.J.S.A.
2C:15-1(a)(1) (count two); first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2)
(count three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four);
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count
five); and second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count six).
                                                                           A-1141-17T3
                                        2
On appeal, defendant argues:

           POINT I

           THE STATEMENT OF DEFENDANT – WHO WAS
           A JUVENILE – SHOULD HAVE BEEN
           SUPPRESSED BECAUSE HE WAS IN CUSTODY
           AND NOT GIVEN MIRANDA WARNINGS PRIOR
           TO INTERROGATION; IN ADDITION, THE
           POLICE AFFIRMATIVELY MISREPRESENTED
           DEFENDANT'S STATUS AS A VICTIM TO OBTAIN
           PERMISSION FROM HIS PARENTS FOR THE
           INTERROGATION.

           POINT II

           THE TRIAL COURT ERRED IN INSTRUCTING
           THE JURY THAT IT COULD CONVICT THE
           DEFENDANT OF FELONY MURDER ON THE
           BASIS OF BEING A MERE CO-CONSPIRATOR TO
           ROBBERY.     ACCORDINGLY, THE FELONY
           MURDER CONVICTION MUST BE VACATED.

           POINT III

           THE RECKLESS MANSLAUGHTER CONVICTION
           SHOULD BE VACATED BECAUSE THE JURY
           WAS NEVER INSTRUCTED ON HOW TO
           RECONCILE THE PURPOSEFUL STATE OF MIND
           REQUIRED TO IMPOSE ACCOMPLICE LIABILITY
           WITH THE RECKLESS STATE OF MIND THAT IS
           AN ESSENTIAL ELEMENT OF MANSLAUGHTER.

Unpersuaded by any of these arguments, we affirm.




                                                      A-1141-17T3
                                     3
                                         I.

       Defendant contends that his statement to detectives on the day of the

murder, should have been suppressed because he was in custody and not given

Miranda2 warnings prior to his interrogation. He claims the custodial nature of

the interrogation is evidenced by: his transportation from the hospital to the

Newark Police Department following his release after emergency surgery to

treat multiple gunshot wounds and his concomitant receipt of five doses of

Fentanyl; his subsequent transportation in the back of a police car to the Essex

County Prosecutor's Office after "sitting in an interview room, at the police

department 'for a couple of hours,'" for questioning; and his interview, that lasted

for a few hours, during which he was asked "accusatory" questions by detectives

who were "deeply skeptical" of his claim that he had been shot at a different

location.

       Defendant, who was seventeen at the time, also claims the detectives

"affirmatively misrepresented" his status as a victim in order to obtain his

parent's permission for the interrogation. As support for this claim, he cites both

his mother's entry into the interview room after a crime-scene detective was




2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                            A-1141-17T3
                                         4
called to take photographs of defendant's hands and her demand that detectives

stop interrogating her son.

      Unless Miranda warnings are administered, statements made by a

defendant while in custody, whether exculpatory or inculpatory, may not be used

in the prosecutor's case-in-chief. State v. Hartley, 103 N.J. 252, 275 (1986).

"Custodial interrogation" means "questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way." Miranda, 384 U.S. at 444. Absent a

formal arrest, the "critical determinant of custody is whether there has been a

significant deprivation of the suspect's freedom of action based on the objective

circumstances[.]" State v. P.Z., 152 N.J. 86, 103 (1997).

            Relevant circumstances and factors considered in
            evaluating the restraint involved under the
            circumstances of the case include: the time, place and
            duration of the detention; the physical surroundings;
            the nature and degree of the pressure applied to detain
            the individual; language used by the officer; and
            objective indications that the person questioned is a
            suspect.

            [State v. Smith, 374 N.J. Super. 425, 431 (App. Div.
            2005) (citing Stansbury v. California, 511 U.S. 318,
            325 (1994)).]

      Judge Alfonse J. Cifelli conducted an evidentiary hearing during which he

heard testimony from Johnson, defendant and his mother; the judge also

                                                                         A-1141-17T3
                                       5
reviewed the transcript of the interview. Based on his review of the transcript

and Johnson's testimony, which the judge found to be "candid, consistent, and

unwavering both on direct and cross[-]examination," Judge Cifelli found, in a

comprehensive oral decision:

            [D]efendant was interrogated as a victim of a shooting
            as opposed to a suspect. The interrogation, again
            pursuant to the transcript, was limited to the facts and
            circumstances surrounding his injuries without any
            questions or references of the shooting and/or death of
            Joseph Flag[g]. Nor did [defendant] disclose any
            information or any involvement in the shooting of Mr.
            Flag[g].

      The judge acknowledged defendant was questioned by two detectives in

an interview room at the Prosecutor's Office shortly after he was treated for

gunshot wounds but, nonetheless found the questioning was not conducted in a

custodial setting because:

            One, [defendant] presented himself to officers as a
            victim of a shooting several blocks from where another
            man had just been murdered. Two, the detective did
            not pressure [defendant], nor did their questioning
            appear to be pursued in order to obtain any
            incriminating statements. [Defendant] was not linked
            to the homicide in question at the time of his
            questioning. Objectively, defendant was not a suspect
            at the time of the questioning. The detectives only later
            received [the Newark Police Department Ballistics
            Laboratory's] report and incriminating statements . . .
            from others connecting [defendant] at the scene of the
            homicide. Detectives did not ask [defendant] any

                                                                        A-1141-17T3
                                       6
            questions whatsoever pertaining to the murder of
            Joseph Flag[g] and restricted their questioning
            specifically to his injuries and/or the gunshots causing
            those injuries.
                  [Defendant] was at no time told during the
            questioning that he was not free to leave. [Defendant]
            appeared to be responsive and receptive to the
            detective’s questioning indicating he was neither
            coerced nor restrained. Defendant was never promised
            anything for his cooperation or threatened for
            noncompliance.

      Judge Cifelli had already found defendant's testimony that he was told by

the police that he was not free to leave or to go with his parents, and that he was

agitated and wanted to leave, was "not corroborated either by his mother's

testimony [or] more importantly the testimony of [the] detective and/or the

transcript of the discourse between" defendant and the detective. The judge

further found:

            Defendant, during the course of the interrogation, did
            not ask for any breaks; specifically did not ask to go to
            the bathroom, eat, drink, et cetera. He never asked to
            stop the statement. He never asked for an attorney or
            his parents. He never refused to continue. He answered
            all questions without any reluctance or hesitation. He
            made no complaints -- contrary to his testimony, I
            should say, during the course of the [e]videntiary
            [h]earing, he made no complaints of pain, no problem
            understanding or speaking. And after the statement was
            -- and nor did the parents at anytime seek to obtain
            entrance or admission into the interrogation room.
            After the statement was completed, defendant left with
            his parents.

                                                                           A-1141-17T3
                                        7
      The scope of our review of a judge's findings of fact on a motion to

suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). "We do not weigh

the evidence, assess the credibility of witnesses, or make conclusions about the

evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only "determine

whether the findings made could reasonably have been reached on sufficient

credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162

(1964). We are not in a good position to judge credibility and should not make

new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only

where we are "thoroughly satisfied that the finding is clearly a mistaken one and

so plainly unwarranted that the interests of justice demand intervention and

correction . . . [that we] appraise the record as if [we] were deciding the matter

at inception and make [our] own findings and conclusions." Johnson, 42 N.J. at

162 (citations omitted).

      The testimony and evidence Judge Cifelli found to be credible and reliable

were sufficient to support his findings and are entitled to our deference on

appeal.   See State v. Elders, 192 N.J. 224, 243-44 (2007).         Although his

conclusions as to matters of law are not entitled to deference, State v. Shaw, 213

N.J. 398, 411 (2012), we are in accord with his cogent application of the law to

the facts he found.        We agree defendant was not subject to custodial


                                                                          A-1141-17T3
                                        8
interrogation by the detectives at the Essex County Prosecutor's Office. "The

rights set forth in Miranda are not implicated 'when the detention and

questioning is part of an investigatory procedure rather than a custodial

interrogation[.]'" State v. Smith, 307 N.J. Super. 1, 9 (App. Div. 1997) (quoting

State v. Pierson, 223 N.J. Super. 62, 66 (App. Div. 1988)).

      Judge Cifelli's findings also scotch defendant's claim that the police

misrepresented his status as a victim to his parents in order to obtain their

permission to question him. The judge found testimony of defendant's mother

and Johnson established that defendant's "parents were aware of defendant being

questioned about his injuries." He also found the transcript of defendant's

statement "contain[ed] acknowledgement from both detectives as well as

[defendant] that defendant's parents gave the detective permission to speak with

[defendant]." Further, the judge found defendant's parents remained just outside

the interview room during questioning, were aware defendant was being

questioned, "never asked to be permitted to accompany" defendant in the room,

and, as admitted by defendant's mother during the evidentiary hearing, she

interjected when pictures were taken of her son's hand and asked the detectives

to stop; they complied. Those findings, in tandem with the judge's finding that

the detectives viewed defendant as a victim during questioning, did not have


                                                                         A-1141-17T3
                                       9
information linking him to Flagg's homicide until after the interview was

completed and, indeed, did not ask defendant about the Flagg homicide, are

supported by the record and are entitled to our deference.

      We thus affirm the denial of defendant's motion to suppress evidence

substantially for the reasons set forth in Judge Cifelli's well-reasoned decision.

                                             II.

      Defendant also argues the trial judge erred in instructing the jury. He first

contends the trial court improperly instructed the jury that it could convict

defendant of felony murder on the basis of being a co-conspirator to robbery,

because conspiracy to commit robbery is not a predicate offense to felony

murder. Relying on State v. Grey, 147 N.J. 4 (1996), defendant contends the

instructions did not clearly inform the jury that if it found defendant guilty as

only a co-conspirator to robbery, it could not also find him guilty of felony

murder.

      Defendant did not raise any objection to the instruction to the trial judge,

and we previously recognized, "[t]he appropriate time to object to a jury charge

is 'before the jury retires to consider its verdict.'" State v. Funderburg, 225 N.J.

66, 79 (2016) (quoting R. 1:7-2). As such, we review for plain error. Ibid.

Under that standard, the error will be disregarded "unless it is of such a nature


                                                                            A-1141-17T3
                                        10
as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. The

error "must be sufficient to raise 'a reasonable doubt . . . as to whether the error

led the jury to a result it otherwise might not have reached.'" Funderburg, 225

N.J. at 79 (alteration in original) (quoting State v. Jenkins, 178 N.J. 347, 361

(2004)).

        In Grey, our Supreme Court perpended the predicate offenses for felony

murder listed in N.J.S.A. 2C:11-3(a)(3), and recognized "the substantive crime

of conspiracy is not a predicate offense for felony murder." 147 N.J. at 15. As

such, the Court mandated, "[i]n felony-murder cases, courts should instruct

juries that they may not convict a defendant of felony murder unless they convict

the defendant of the underlying offense that is a predicate to the felony-murder

conviction." Id. at 16.

        Viewing the entire jury charge as a whole, Boryszewski v. Burke, 380 N.J.

Super. 361, 374 (App. Div. 2005), including the instructions on the separate

charges of conspiracy to commit robbery (count one) and robbery (cou nt two),

we discern Judge James W. Donohue followed that mandate in instructing the

jury:

              You cannot find [defendant] guilty of felony murder
              unless you first find him guilty, beyond a reasonable
              doubt, o[f] having committed or attempting to commit
              the crime of robbery as charged in count two.

                                                                            A-1141-17T3
                                        11
            I have previously defined for you the elements of
            conspiracy to commit robbery as charged in count one
            of the indictment. Conspiracy to commit robbery is a
            separate offense from robbery and cannot be the basis
            of a conviction of felony murder. Therefore, if you find
            [defendant] guilty, beyond a reasonable doubt of
            conspiracy to commit robbery, as charged in count one,
            but you find the defendant not guilty of robbery as
            charged in count two, then you must find him not guilty
            of felony murder.

      The judge—in accordance with the Grey Court's determination that "[t]he

felony murder charge required that the jurors first find that defendant was

'engaged in the commission of [the predicate offense]' (emphasis added) for the

jurors to convict of felony murder[,]" 147 N.J. at 15 (emphasis in original)—

told the jury on several occasions that the State was required to "prove beyond

a reasonable doubt that [defendant] was engaged in the commission of, or

attempt to commit, or flight after committing , or attempting to commit the crime

of robbery[.]" And Judge Donohue explicitly instructed the jury, "You cannot

find [defendant] guilty of felony murder unless you first find him guilty, beyond

a reasonable doubt, [of] having committed or attempting to commit the crime of

robbery as charged in count two" of the indictment.

      We disagree with defendant's contention that Grey prohibits a conviction

for felony murder if a defendant is guilty of the predicate offense as a co -

conspirator. The Court acknowledged the plain language of the felony-murder

                                                                         A-1141-17T3
                                      12
statute did not list the substantive crime of conspiracy. Ibid. Robbery, however,

is a listed predicate offense, N.J.S.A. 2C:11-3(a)(3), and the jury properly

considered—in accordance with the judge's instructions—if defendant was

engaged in the commission of the robbery.

      Judge Donohue's instruction conveyed the law and was unlikely to

confuse or mislead the jury; as such, we will not reverse. Boryszewski, 380 N.J.

Super. at 374. We perceive no error, much less one that "is of such a nature as

to have been clearly capable of producing an unjust result[.]" R. 2:10-2.

      We also view defendant's other jury-instruction argument under that plain

error standard as he did not lodge any objection to the reckless-manslaughter

instruction. Defendant argues the instruction was confusing because the judge

"separated the charge on accomplice liability from the substantive offenses,"

and then, in the context of the substantive offenses, used the term "a person for

whom he is legally responsible" instead of the words "accomplice" or "co-

conspirator." Defendant contends the instruction left the jury in a quandary as

to how to reconcile the purposeful state of mind required to impose accomplice

liability with the reckless state of mind it considered in its deliberations on

manslaughter. He also argues that the accomplice liability instruction "directed

the jury to consider whether defendant had a purpose to promote a reckless act."


                                                                         A-1141-17T3
                                      13
      We determine defendant's arguments regarding the manslaughter jury

instruction are without sufficient merit to warrant discussion in this opinion. R.

2:11-3(e)(2). The jury charge paralleled the Model Jury Charge on reckless

manslaughter, and "[i]t is difficult to find that a charge that follows the Model

Charge so closely constitutes plain error." Mogull v. CB Commercial Real

Estate Grp., 162 N.J. 449, 466 (2000). See Model Jury Charges (Criminal),

"Reckless Manslaughter (N.J.S.A. 2C:11-4(b)(1))" (rev. Mar. 22, 2004). We

add only that Judge Donohue made clear that "accomplice liability [was] not to

be considered" in the jury's deliberations on count three, which included reckless

manslaughter as a lesser-included crime to murder. He specified at the start of

his instruction on count three that the State alleged defendant committed murder

as a principal, "or that another for whom he is legally responsible as a co-

conspirator committed" the murder. (Emphasis added). Thus, any reference in

the reckless manslaughter instruction to a person for whom defendant was

legally responsible did not, contrary to defendant's contention, include an

accomplice.

      Affirmed.




                                                                          A-1141-17T3
                                       14
