                 NOT FOR PUBLICATION WITHOUT THE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,
                                       APPROVED FOR PUBLICATION
      Plaintiff-Respondent,
                                          January 19, 2016

v.                                       APPELLATE DIVISION

REGINALD ANTHONY,

     Defendant-Appellant.
____________________________________________

          Argued September 21, 2015 – Decided January 19, 2016

          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
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.




                                     2                            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.



                                             3                                     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).



                                           4                                   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.




                                       5                                     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 thirty-

eight 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.



                                     6                                  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




                                                 7                                       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.



                                             8                                  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."




                                                9                                   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




                                               10                                            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




                                        11                               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.



                                    12                             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




                                             13                                   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.




                                      14                              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, . . .



                                        15                              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




                                         16                            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).




                                             17                                    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




                                             18                                  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




                                             19                                  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




                                        20                                  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.




                                                 21                                      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



                                              22                                      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




                                      23                            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'")




                                         24                                 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)




                                                25                                    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 "bright-

line"      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




                                            26                                      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




                                      27                               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.



                                             28                                   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 re-

offense);       (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).



                                                 29                                        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



                                    30                                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).




                                                31                                       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.




                                  32                            A-2658-12T3
