                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-4309-13T2



STATE OF NEW JERSEY,                    APPROVED FOR PUBLICATION

     Plaintiff-Respondent,                 February 29, 2016

v.                                         APPELLATE DIVISION


STEPHON G. WRIGHT,

     Defendant-Appellant.
_____________________________

         Submitted December 7, 2015 – Decided February 29, 2016

         Before Judges Sabatino, Accurso and
         O'Connor.

         On appeal from Superior Court of New Jersey,
         Law Division, Hudson County, Indictment No.
         12-11-2039.

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

         Esther Suarez, Hudson County Prosecutor,
         attorney for respondent (Rookmin Cecilia
         Beepat, Assistant Prosecutor, on the brief).

     The opinion of the court was delivered by

ACCURSO, J.A.D.

     Following the denial of defendant Stephon G. Wright's

motions to exclude the testimony of the victim identifying
Wright as the man who robbed him at gunpoint and to suppress

statements Wright made to the police, he entered a conditional

guilty plea pursuant to a negotiated agreement to first-degree

armed robbery, N.J.S.A. 2C:15-1; and was sentenced to eight

years in state prison subject to the periods of parole

ineligibility and supervision required by the No Early Release

Act, N.J.S.A. 2C:43-7.2.   He appeals pursuant to Rule 3:9-3(f),

contending the court erred in denying his motions and, in the

alternative, that his sentence is excessive.   He frames the

issues as follows:

         POINT I

         THE COURT BELOW COMMITTED REVERSIBLE ERROR
         IN DENYING THE MOTION TO SUPPRESS THE
         IDENTIFICATION, AS [THE VICTIM'S] OUT-OF-
         COURT IDENTIFICATION PRESENTED A VERY
         SUBSTANTIAL LIKELIHOOD OF IRREPARABLE
         MISIDENTIFICATION, AND THE IDENTIFICATION
         PROCEDURE WAS NOT PROPERLY RECORDED.
         (Partially Raised Below).

         POINT II

         MR. WRIGHT WAS NOT APPRISED OF HIS MIRANDA
         RIGHTS PRIOR TO BEING SUBJECTED TO A
         CUSTODIAL INTERROGATION, AND THEREFORE, THE
         COURT BELOW ERRONEOUSLY DENIED HIS MIRANDA
         MOTION.

         POINT III

         THE MATTER SHOULD BE REMANDED FOR
         RESENTENCING.

         A. The Sentencing Judge Engaged in Double
         Counting.



                                2                         A-4309-13T2
          B. The Sentencing Court Erred in Finding
          Aggravating Factors Three, Six, and Nine.

     We find no error in the court's decision to admit the

identification evidence under the test established in State v.

Henderson, 208 N.J. 208 (2011), and thus reject defendant's

arguments on that point.    We also reject Wright's arguments

regarding his sentence.    We agree, however, that his statements

to the police were the product of the equivalent of custodial

interrogation without required Miranda1 warnings and should have

been suppressed.    Accordingly, we reverse the court's decision

to admit the statements and remand for further proceedings.

                      The Pre-trial Hearing

     Walking home from the Journal Square PATH station in Jersey

City at about three a.m. in the middle of the summer, three

brothers were accosted by a man on a bicycle.    The man pointed a

silver gun at them and demanded they give him what they had in

their pockets.     The brothers handed over an iPhone and about

fifteen dollars.    After the man rode off, the young men hurried

toward their uncle's house and used a cell phone they had not

relinquished to call the police.




1
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).



                                  3                         A-4309-13T2
      In addition to providing the police a description of their

assailant, the young men used an "app" to track the stolen phone

to the area of Grand and Prescott Streets.   Jersey City police

officers Andrek and Harrison were dispatched to that location to

search for an armed black male, approximately 5'6" or 5'7",

wearing a white t-shirt and grey sweats and riding a blue bike.

They shortly came across an open garage with three or four

people lounging inside.   A blue bike rested on the ground

nearby.

      The officers drew their weapons and entered the garage.

Although none of the occupants claimed ownership of the bike,

the officers noticed one man, later identified as defendant, who

appeared nervous and matched the description of the robber.       The

officers separated him from the group to speak to him outside

the garage.   Officer Andrek testified at the hearing that the

officers immediately informed defendant he was being detained

because he fit the description of the perpetrator of an armed

robbery that had just taken place near Journal Square.   He also

radioed the precinct they had a suspect.

      Three other officers arrived as backup within a minute or

so.   Officer Andrek detained defendant outside the garage, while

Officer Harrison joined the three newly arrived officers in a

search of the area.   Shortly thereafter, Andrek was advised by




                                4                            A-4309-13T2
radio that Detective Frascino was en route to the garage with

one of the victims to see whether he could identify defendant.

Andrek testified he relayed that information to defendant.

    Before the victim arrived, however, one of the other

officers found a gun in an alleyway two houses away from where

Officer Andrek was holding defendant.     Andrek testified that

when he was informed a gun had been recovered, he relayed that

information to defendant as well.     That testimony led to the

following exchange:

         Prosecutor: What, if anything, was Mr.
         Wright[']s reaction, expression, however you
         want to word it, when you informed him of
         these two things?

         Officer Andrek: His expression was so — he
         was caught. He put his head down and
         sighed, and then he said fuck you, I got the
         cell phone, it's over there. And he
         motioned his head towards the direction of
         the gun.

The prosecutor followed up with this question.

         Prosecutor: And, again, this wasn't based
         on questioning by you or [Officer] Harrison,
         this was Mr. Wright saying this only after
         you informed [him] the victim was on the
         way, and the handgun was recovered?

         Officer Andrek:   Correct.

Although the officer conceded on cross-examination that it would

have been "prudent" to have advised defendant of his rights when

the officer began "relaying information to [defendant] about the




                               5                            A-4309-13T2
sequence of the investigation," defendant was only administered

his Miranda rights after he admitted possessing the cell phone.

     Following Wright's admission, officers quickly recovered

the phone in an alley near where the gun was found and radioed

the information to the other units involved in the

investigation.   The victim heard that radio transmission while

seated in the back seat of Detective Frascino's car on the way

to the showup.   The victim testified he also heard over the

radio the police had recovered the gun as well.    He claimed that

not only had he heard other officers had recovered his cell

phone before they arrived at the place the police were holding

defendant, but that Detective Frascino told him that as well.2

     The victim testified that when they arrived at the showup,

he remained in the car while some officers stood nearby with a

man in handcuffs whom they said was "the guy we found with the

phone" and asked, "is this the guy who robbed you[?]"    He

testified he was "positive" that defendant was "the right guy"

and that the entire incident, from robbery to identification,

took place in less than an hour.    In response to the judge's

2
  The witness gave different answers to similar questions posed
by the prosecutor and defendant's counsel, leading the judge to
comment at one point that "he's saying yes to any question he's
being asked if you ask me." Having read the entire transcript
of this hearing, we can confidently say that none of those
testifying was a model witness, as all had difficulty either
recalling or relating basic information.



                                6                             A-4309-13T2
question of whether "the fact that you heard about the phone

being recovered have any impact on your identification at all,"

the victim said, "No it didn't."

       Detective Frascino testified that he explained the

identification procedure to the victim,3 but denied telling him

the suspect had been found with the phone at the time of the

showup.    Instead the detective maintained the information that

the phone had been located "came over the air, and [the victim]

was excited in the car and said they found my phone, and I only

stated that that's what they said over the air."    The detective

also testified defendant was in handcuffs when they arrived for

the showup, but that he had the cuffs removed before walking

defendant to the car for the victim's identification.       He did

allow, however, that it was possible the victim saw defendant in

handcuffs when they first pulled up.


3
    The detective claimed he explained to the victim:

            that we were [en] route to a location where
            there would be a subject that we want him to
            — that I would like him to take a look at.
            And when we get there, when you look at him
            you tell me if there's anything about him
            that he can tell me regarding that subject.

The detective made no mention of having warned the victim that
the suspect might not have been the perpetrator and that the
victim should not feel compelled to make an identification, as
is required by the Attorney General Eyewitness ID Guidelines and
Henderson. See Henderson, supra, 208 N.J. at 261, 276-78.



                                  7                           A-4309-13T2
                    Trial Court Opinion

     The judge issued a written opinion denying the Wade4 motion.

After summarizing the testimony of the witnesses and reviewing

the Supreme Court's discussion of system and estimator variables5

in Henderson, the judge found that without doubt the showup was

impermissibly suggestive.   He wrote:

          After extensive questioning by the attorneys
          and the Judge, the victim stated that he was
          told "they have the person who has the
          phone." The victim specifically stated that
          the Officers told him this prior to showing
          him the suspect. The "suspect" was brought
          to the police car in handcuffs and
          positively identified as the perpetrator.
          There was only one individual that was
          brought to the unmarked vehicle for
          identification. These factors conveyed to
          [the victim] that the police believed they
          had the robber.

     Notwithstanding the impermissible suggestiveness of the

showup, the judge concluded the victim's identification of

defendant as the man who robbed him and his brothers was


4
  United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
5
  "System variables" are factors relating to the identification
that are within the State's control and include such things as
lineup or showup construction, blind administration, pre-
identification instructions, avoiding feedback and recording
confidence. "Estimator variables" are factors over which the
State has no control as they relate to the witness, the
perpetrator, or the event itself and include such things as
distance and lighting, duration, weapon focus, race bias and
stress. Henderson, supra, 208 N.J. at 248-67.



                                8                          A-4309-13T2
nevertheless sufficiently reliable to permit its admission.      The

judge noted that the two men stood only three feet apart during

their encounter and exchanged words, giving the victim a good

look at the robber.   He also noted the victim's identification

was "highly accurate as to the race, height, facial hair,[6] and

clothing," and was made within an hour of the robbery.

     The judge acknowledged other estimator variables that could

affect the reliability of the identification, including the

presence of a gun, which he found "could have distracted the

victim's focus on the perpetrator's face."   Having considered

both the suggestiveness of the showup and the estimator

variables, the judge concluded based on the witnesses' testimony

"that the victim made the identification from his own

independent recollection" and that it "was not tainted in any

significant way by the suggestive identification procedure."

     The judge also denied defendant's motion to exclude his

statements to the police, but did so in an oral opinion.    He

concluded custody was not in issue as "defendant was actually

detained [outside the garage] and, therefore, legally and

6
  The victim testified the robber sported a goatee. He also
noted the man had short hair. There was no mention of a hat or
anything else that might have impeded the victim's view of the
robber's face and hair. See Henderson, supra, 208 N.J. at 266
(noting the special master's finding that "[d]isguises (e.g.,
hats, sunglasses, masks) are confounding to witnesses and reduce
the accuracy of identifications").



                                9                           A-4309-13T2
technically in custody."    The judge accordingly concluded that

the officers would have been obligated to have administered

Miranda warnings to defendant "if he was to be interrogated."

The judge determined, however, that defendant was not

interrogated.

                 I don't believe that the action of the
            police in advising him what was going on
            would have caused them to reasonably expect
            to elicit from him an incriminating response
            as to where the phone was. I just don't
            find it to be a functional equivalent of
            interrogation as per the Ward[7] case . . . .

                 [The officers] . . . did nothing to
            elicit the response from [defendant]
            indicating where the phone was. That's
            something he blurted out based upon all the
            circumstances of what's going on and,
            frankly, it's probably something common that
            happens in human nature, you just — you
            know, it is what it is.

                 So I don't find that his constitutional
            rights were violated by virtue of the fact
            he was not Mirandized, as in fact . . . the
            police comment did not constitute an
            interrogation or the functional equivalent
            of an interrogation. Nothing was done to
            elicit a response by the police.

Accordingly, the judge denied defendant's motion.

                      Standard of Review

       Our standard of review on a motion to bar an out-of-court-

identification (or a statement made without benefit of Miranda


7
    State v. Ward, 240 N.J. Super. 412 (App. Div. 1990).



                                 10                         A-4309-13T2
warnings) is no different from our review of a trial court's

findings in any non-jury case.     See State v. Johnson, 42 N.J.

146, 161 (1964).   "The aim of the review at the outset is . . .

to determine whether the findings made could reasonably have

been reached on sufficient credible evidence present in the

record."   Id. at 162.    As with our review of the fact finding on

other pre-trial motions in a criminal case, the "trial court's

findings at the hearing on the admissibility of identification

evidence are 'entitled to very considerable weight.'"     State v.

Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61

N.J. 434, 451 (1972)); see also State v. Locurto, 157 N.J. 463,

470-71 (1999).

    Our Supreme Court has long held that "[a]n appellate court

'should give deference to those findings of the trial judge

which are substantially influenced by his opportunity to hear

and see the witnesses . . . .'"     State v. Elders, 192 N.J. 224,

244 (2007) (quoting Johnson, supra, 42 N.J. at 161).     That

deference is grounded in the understanding that our "reading of

a cold record is a pale substitute for a trial judge's

assessment of the credibility of a witness he has observed

firsthand."   State v. Nash, 212 N.J. 518, 540 (2013).    Appellate

review of the trial court's application of the law to the facts,

however, is plenary.     State v. Coles, 218 N.J. 322, 342 (2014);




                                  11                        A-4309-13T2
see also State v. Jones, ___ N.J. ___, ___ (2016) (slip op. at

19-20).

                     Identification Issue

       We turn first to defendant's contention that the trial

court erred in admitting the victim's out-of-court

identification.    There is no dispute that under the Henderson

framework, which applied in this case, the inherent

suggestibility of a showup entitled defendant to a Wade hearing.

See Henderson, supra, 208 N.J. at 261 ("showups, while sometimes

necessary, are inherently suggestive").     With "actual proof of

suggestiveness" supplied by the showup, augmented by the

victim's credible testimony that the officers told him before he

viewed the suspect that they had the person who had his phone,

the court was required to consider both system variables and

estimator variables in evaluating the overall reliability of the

identification in determining its admissibility.     See id. at

291.

       The court identified several system variables that could

have affected the reliability of this identification.     Beyond

the inherent suggestibility of the showup itself, the court

noted the victim heard the police radio transmissions that

officers had recovered his cell phone and found a gun minutes

before he was asked to identify the suspect.     The victim




                                 12                           A-4309-13T2
testified that the detective told him the police "have the

person who has the phone" and that the suspect was walked toward

the car in handcuffs.

     Exploring the estimator variables at the hearing as

Henderson requires, see id. at 293, the court noted that the

presence of a gun certainly "could have distracted the victim's

focus on the perpetrator's face."8   It found other estimator

variables, however, that could positively affect the reliability

of the identification, including that the victim stood within

three feet of the perpetrator and that the two exchanged words,

which allowed the victim to get a good look at his assailant.

The court further noted that the identification was made shortly

after the encounter, within an hour according to both the police

and the victim.   The court emphasized that the victim was able

to provide police with a "highly accurate" description of the


8
  The judge included among estimator variables two we believe are
more appropriately characterized as system variables, the
victim's overhearing of the radio transmissions and the
suspect's presence in handcuffs. He also included in his
discussion of the variables the victim's lack of motivation to
lie. Motivation to lie goes to a witness's credibility, not to
the reliability of an identification. See Raheem v. Kelly, 257
F.3d 122, 140 (2d Cir. 2001), cert. denied, 534 U.S. 1118, 122
S. Ct. 930, 151 L. Ed. 2d 892 (2002) ("Reliability, in the
identification context, means essentially that the witness's
recollection was 'undistorted.'"). The question for the court
was whether the victim's identification of defendant was
distorted by system or estimator variables leading to a
substantial likelihood of misidentification.



                                13                         A-4309-13T2
perpetrator's race, height, clothing and facial hair, as well as

the color and type of bicycle he was riding.9

     Weighing the system and estimator variables present in this

record led the court to find that although "the identification

procedure was impermissibly suggestive," it could not conclude

that defendant had proved a "very substantial likelihood of an

irreparable misidentification" as was his burden.   Id. at 289

("[I]f after weighing the evidence presented a court finds from

the totality of the circumstances that defendant has

demonstrated a very substantial likelihood of irreparable


9
  There is evidence of other estimator variables in the record
not mentioned in the court's findings that could further support
admission of the identification in this case. The victim and
defendant were both young men of approximately the same age.
See Henderson, supra, 208 N.J. at 265 (discussing effect of age
on reliability of an identification). They may also have been
of the same race, as no argument was raised as to cross-racial
recognition affecting the reliability of the identification.
Id. at 267. We do not rely upon either "fact," we merely note
them as estimator variables that should be identified and
analyzed under the Henderson framework.
     Similarly, the court made no mention of Detective
Frascino's failure to have warned the victim that the suspect
might not have been the perpetrator, and that the victim should
not feel compelled to make an identification, as is required by
the Attorney General Eyewitness ID Guidelines. See supra, note
3. Although the Court in Henderson rejected the notion that
violation of the Attorney General Guidelines would require per
se exclusion of the resulting eyewitness identification, pre-
identification instructions are a critical system variable that
must be weighed on a Wade motion under the revised Henderson
framework. See Henderson, supra, 208 N.J. at 250, 261, 290,
292-93.




                               14                           A-4309-13T2
misidentification, the court should suppress the identification

evidence.").    Defendant contends that we should reverse because

the court "improperly balanced the system and estimator

variables adduced during the Wade hearing."    We reject that

argument.

     Although the Henderson Court noted the enhanced framework

it established for admission of identification testimony "may

provide a greater role [for appellate review] in certain cases,"

id. at 295, we do not conclude the Court intended by that

observation to endorse a standard that would allow us to set

aside findings that have adequate support in the record, as

these do.10    To be sure, the Court in Henderson continued to

endorse its conclusion in State v. Herrera, 187 N.J. 493, 504

(2006), that showups are inherently suggestive.    Henderson,

supra, 208 N.J. at 261; see also Jones, supra, ___ N.J. at ___

(slip op. at 22).    It did not, however, limit their


10
  We do not draw any different conclusion from the Court's de
novo review of "whether constitutional due process requirements
should have compelled the exclusion of an out-of-court
identification from defendant's criminal trial" in Jones.
Jones, supra, ___ N.J. at ___ (slip op. at 19). The Court in
Jones was addressing errors in the legal analysis of the
identification testimony adduced at trial. Specifically, the
error of considering extrinsic evidence of guilt when analyzing
the independent reliability of an inherently suggestive
identification procedure. Id. at 9-10. Appellate review of the
application of the law to the facts is always plenary. See
Coles, supra, 218 N.J. at 342.



                                  15                        A-4309-13T2
admissibility, instead noting the special master's finding that

"'the risk of misidentification is not heightened if a showup is

conducted immediately after the witnessed event, ideally within

two hours' because 'the benefits of a fresh memory seem to

balance the risks of undue suggestion.'"   Henderson, supra, 208

N.J. at 259 (quoting Report of the Special Master at 29,

Henderson, supra, 208 N.J. 208 (No. A-8-08)); see also Jones,

supra, ___ N.J. at ___ (slip op. at 22) (noting "[o]ur law has

permitted 'on or near-the-scene identifications because they are

likely to be accurate, taking place . . . before memory has

faded and because they facilitate and enhance fast and effective

police action and they tend to avoid or minimize inconvenience

and embarrassment to the innocent.'") (quoting Herrera, supra,

187 N.J. at 504).

    We recognize, of course, that the inherent suggestibility

of a showup was compounded in this instance by several system

variables, most notably the witness hearing the radio

transmissions and the detective's failure to try to neutralize

the harm by declining to confirm the information and warning the

witness that the suspect may not be the perpetrator and that he

should not feel compelled to make an identification, and instead

telling him they had "the person who has the phone."    We also

acknowledge that neither counsel nor the court was accustomed to




                               16                          A-4309-13T2
working within the Henderson framework.   The failure of the

court to discuss the detective's neglect to warn the witness

that the suspect might not be the perpetrator and he should not

feel compelled to make an identification is particularly

concerning in light of the other system failures in this

showup.11

     The central point of Henderson is the recognition that

suggestive identification procedures can skew a witness's report

of his opportunity to view the crime, his degree of attention,

and, most importantly perhaps, his level of certainty at the

time of the identification.   208 N.J. at 286.   Thus it is

critical that the court identify particular police procedures —

the system variables – and consider whether and to what extent

any may have distorted the witness's perception at the time of

the identification and the witness's certainty as to the

identification thereafter.    The court is to weigh those system

variables along with any applicable estimator variables, some of

which are also capable of altering memory and thus tainting an

identification, in determining, based on the totality of the


11
  We acknowledge, however, that the court's finding that the
showup was impermissibly suggestive because the police
communicated to the victim "that the police believed they had
the robber" would certainly encompass the failure to provide the
instruction required by the Attorney General Guidelines and
Henderson.



                                 17                           A-4309-13T2
circumstances, whether defendant has carried his burden to

demonstrate "a very substantial likelihood of irreparable

misidentification."   Id. at 289.

     Here, the trial court, after listening to the testimony and

weighing the factors, concluded defendant had not demonstrated

that very substantial likelihood and that it would be for the

jury to decide whether the victim credibly identified defendant,

guided by enhanced instructions on eyewitness testimony from the

trial judge.12 See Model Jury Charge (Criminal), "Identification:

Out-of-Court Identification Only" (2012); State v. Lazo, 209

N.J. 9, 24 (2012).    The court based its ruling on the victim's

ability to see the robber and provide a "highly accurate"

description of him less than an hour before he was called on to

make his identification.   Although finding the police

impermissibly signaled the victim in a variety of ways that "the

police believed they had the robber," the court concluded the

12
  Underscoring the importance of jurors understanding the
complicated issues underlying the reliability of eyewitness
identification evidence the Court identified in Henderson, it
directed the Criminal Practice Committee and the Committee on
Model Criminal Jury Charges to develop an enhanced jury charge
on eyewitness identification for the Court's review prior to its
implementation. Henderson, supra, 208 N.J. at 296-99. The
resulting three new charges became effective September 2012.
See Model Jury Charge (Criminal), "Identification: In Court and
Out-of-Court Identifications" (2012); Model Jury Charge
(Criminal), "Identification: In Court Identification Only"
(2012); Model Jury Charge (Criminal), "Identification: Out-of-
Court Identification Only" (2012).



                                 18                         A-4309-13T2
circumstances made misidentification unlikely.     Mindful that we

are reviewing a cold record and that the trial court's factual

findings are "entitled to very considerable weight," Adams,

supra, 194 N.J. at 203, we find no basis to disturb those

findings and affirm the trial court's denial of the motion to

suppress the identification made by the victim.13    See Elders,

supra, 192 N.J. at 244.

                          Delgado Claim

     Defendant also contends, in an argument not raised to the

trial court, that the out-of-court identification should not

have been admitted under State v. Delgado, 188 N.J. 48, 63

(2006), which conditions admissibility on adequate documentation

of the identification procedure.     See also R. 3:11.

Specifically, defendant argues that "[t]he absence of even a

single report regarding 'the dialogue between the witness and

the interlocutor,' . . . renders [the victim's] out-of-court

identification inherently suspect and per se inadmissible."




13
  Nor do we conclude that police missteps in cuing the witness
that they believed defendant was the perpetrator rose to the
level of a due process violation. See Jones, supra, ___ N.J. at
___ (slip op. at 36-37) (holding that making suspect wear a
distinctive plaid jacket he was not wearing when apprehended
"rendered the showup and the identification evidence that it
generated a violation of defendant's due process rights,
requiring a new trial").



                                19                          A-4309-13T2
     A review of the transcripts makes clear that at least three

reports were created by the police regarding the investigation

of this crime.   Although extensive use of these reports was made

at the hearing and they were identified in the record, they were

not admitted in evidence and are not included in the record on

appeal.   Accordingly, we are unable to assess defendant's

argument that the police failed to adequately document the

identification procedure in violation of Delgado.

     Because this issue was not raised to the trial court,14 it

is defendant's burden to demonstrate that the police failed to

create an adequate record of the showup in those reports and

that such failure was clearly capable of producing an unjust

result.   See R. 2:10-2; Delgado, supra, 188 N.J. at 64; State v.

Macon, 57 N.J. 325, 337 (1971).    As defendant has not included


14
  We also question whether this issue was properly reserved for
review. Although plaintiff conditioned his plea on his ability
to appeal his "Wade [and] Miranda" motions, he did not make the
Delgado claim part of his Wade motion. It is difficult to
conceptualize a defendant conditioning his guilty plea on his
ability to appeal a claim he did not make, let alone grant
appellate relief to a defendant in such circumstances. Cf.
State v. Szemple, 332 N.J. Super. 322, 328-29 (App. Div.)
(noting we do not ordinarily review a defendant's claims
following a guilty plea beyond those contentions specifically
preserved for appeal), certif. denied, 165 N.J. 604 (2000). Cf.
R. 3:5-7(d) (preserving, by contrast, an automatic right to
appellate review of orders denying motions to suppress physical
evidence). Our disposition of the claim makes further
consideration of this issue, which was not addressed by the
parties, unnecessary.



                                  20                         A-4309-13T2
the reports referenced in the record, thereby precluding us from

assessing the merits of the claim, we reject his argument.

                            Miranda Issue

    We turn now to defendant's argument that his statements to

the police should have been suppressed.      It is beyond well

settled that "every natural person has a right to refuse to

disclose . . . to a police officer . . . any matter that will

incriminate him or expose him to a penalty . . . ."       N.J.S.A.

2A:84A-19; N.J.R.E. 503.     "New Jersey's privilege against self-

incrimination is so venerated and deeply rooted in this state's

common law that it has been deemed unnecessary to include the

privilege in our State Constitution."       State v. O'Neill, 193

N.J. 148, 176 (2007).      The Court has treated "our state

privilege as though it were of constitutional magnitude, finding

that it offers broader protection than its Fifth Amendment

federal counterpart."      Id. at 176-77.   Miranda warnings

safeguard our state law privilege as they do the Fifth

Amendment.   Id. at 185.

    The United States Supreme Court has made clear that Miranda

warnings are required "whenever a person in custody is subjected

to either express questioning or its functional equivalent."

Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682,

1689, 64 L. Ed. 2d 297, 308 (1980).      Our Supreme Court




                                   21                          A-4309-13T2
acknowledged the "functional equivalent" of interrogation rule

of Innis in State v. Bey, 112 N.J. 45, 68 n.13 (1988) (holding

"[t]he initiation of a general discussion about the victim

clearly satisfies" the Innis standard); see also State v.

Hubbard, 222 N.J. 249, 267 (2015).     As the State has conceded

that defendant was in custody when he made the incriminating

statement about the cell phone, the only issue presented to the

trial court, and the one we review, is whether Officer Andrek's

statements to defendant informing him, first, that the victim

was coming over to identify him, and then, that other officers

had found a gun nearby was the "functional equivalent" of an

interrogation.

    The Supreme Court in Innis, explained that "the term

'interrogation' under Miranda refers not only to express

questioning, but also to any words or actions on the part of the

police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to

elicit an incriminating response [whether inculpatory or

exculpatory] from the suspect."    446 U.S. at 301, 100 S. Ct. at

1689-90, 64 L. Ed. 2d at 308 (footnotes omitted).     The Court

explained its reasoning thus:

         The latter portion of this definition
         focuses primarily upon the perceptions of
         the suspect, rather than the intent of the
         police. This focus reflects the fact that



                                  22                        A-4309-13T2
         the Miranda safeguards were designed to vest
         a suspect in custody with an added measure
         of protection against coercive police
         practices, without regard to objective proof
         of the underlying intent of the police. A
         practice that the police should know is
         reasonably likely to evoke an incriminating
         response from a suspect thus amounts to
         interrogation. But, since the police surely
         cannot be held accountable for the
         unforeseeable results of their words or
         actions, the definition of interrogation can
         extend only to words or actions on the part
         of police officers that they should have
         known were reasonably likely to elicit an
         incriminating response.

         [Id. at 301-02, 100 S. Ct. at 1690, 64 L.
         Ed. 2d at 308 (footnotes omitted).]

    We applied the Innis rule in State v. Ward, 240 N.J. Super.

412 (App. Div. 1990).   Ward involved a robbery of a mini-mart in

Newark by three males, one of them a juvenile.     Two of the

robbers, Kevin Miller and the juvenile, S.S., fled in a car and

were quickly apprehended by police.   Miller implicated Ward, who

was then identified by one of the victims in a photo array.       The

following week, a detective investigating the robbery learned

that Ward was in custody on an unrelated charge.    The detective

went to Ward's cell with photographs of Miller and S.S.     The

detective showed Ward the pictures and, without giving him

Miranda warnings, told him he was going to be charged with the

robbery of the mini-mart, and that Miller and S.S. had already

been arrested.   Ward looked at the pictures and told the




                                23                          A-4309-13T2
detective, "I don't know Kevin Miller and [S.S.]."     Id. at 416.

The detective had not mentioned either name to Ward.    The

detective immediately read Ward his Miranda rights.    Ibid.      Ward

refused to sign the waiver card and insisted he knew nothing

about any robbery.   Ibid.

    We determined that the detective's confrontation with Ward

had been the functional equivalent of an interrogation, and that

Ward's response "was not simply a spontaneous outburst elicited

casually or innocently without the State's purposeful enticement

or encouragement."   Id. at 417.    "[M]indful that 'the modern

practice of in-custody interrogation is psychologically rather

than physically oriented,'" ibid. (quoting Miranda, supra, 384

U.S. at 448, 86 S. Ct. at 1614, 16 L. Ed. 2d at 708), Judge King

wrote that

         the Detective's undertaking . . . was
         designed to elicit a response, both helpful
         to the investigation and incriminatory of
         his suspect. . . . Defendant should have
         been given the Miranda warnings before, not
         after, the Detective started the process so
         clearly designed to entangle the defendant
         in the criminal event.

         [Id. at 418.]

We concluded that a scrupulous respect of Ward's rights would

have required Miranda warnings before the detective confronted

Ward in his cell, told him of the robbery and of the formal




                                   24                         A-4309-13T2
charge against him, and then showed him the pictures.       Id. at

419.   We come to a similar conclusion here.

       Officer Andrek testified he provided defendant information

at three different times while defendant was in custody outside

the garage before providing him Miranda warnings.    Upon

escorting defendant out of the garage, Andrek advised defendant

he was being detained because he fit the description of the

perpetrator of an armed robbery that had just taken place near

Journal Square.    Several minutes later, Andrek advised defendant

that one of the victims was being brought over to see if the

victim could identify him.    Some minutes after that, Andrek

advised defendant that officers searching the area had located a

gun a few doors down from where they stood.

       The trial judge concluded on the basis of that testimony

that Officer Andrek "did nothing to elicit the response from

[defendant] indicating where the phone was."    Instead the judge

found it was "something [defendant] blurted out based upon all

the circumstances of what's going on and, frankly, it's probably

something common that happens in human nature, you just — you

know, it is what it is."

       We agree that it is not surprising that defendant "blurted

out" an expletive and acknowledged he had the cell phone "based

upon all the circumstances" transpiring.    Defendant knew police




                                 25                           A-4309-13T2
suspected him of the armed robbery.   Upon being provided with

the additional information that a detective was bringing over

one of the victims to identify him, and that other officers had

found the gun nearby, defendant, as Officer Andrek testified,

knew "he was caught."   The common human experience we understand

the judge was referring to is one of the tightening of a noose.

The officer offered no explanation for supplying defendant with

these updates on the investigation, which clearly were not

inadvertent, see State v. Bohuk, 269 N.J. Super. 581, 594-95

(App. Div.), certif. denied, 136 N.J. 29, cert. denied, 513 U.S.

865, 115 S. Ct. 183, 130 L. Ed. 2d 117 (1994), and appear

designed to elicit a response.   See Ward, supra, 240 N.J. Super.

at 418.   It is precisely because defendant's response is so

readily understandable that we find the officer should surely

have known that his meting out of the information in the way he

did was reasonably likely to evoke an incriminating response,

and thus that it amounted to an interrogation.

    To be clear, like the trial judge, we see no objection to

the officers' initial statements to defendant about why he was

being detained.   If defendant had at that point blurted out that

he had the cell phone, we would not hold the officers

accountable for such an unforeseeable result.    See Innis, supra,

446 U.S. at 301-02, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at 308;




                                 26                         A-4309-13T2
see also State v. Melendez, 423 N.J. Super. 1, 30 (App. Div.

2011), certif. denied, 210 N.J. 28 (2012); State v. Lozada, 257

N.J. Super. 260, 268-69 (App. Div.), certif. denied, 130 N.J.

595 (1992); State v. Mallozzi, 246 N.J. Super. 509, 516 (App.

Div. 1991).

    Here, however, Officer Andrek continued well beyond his

initial communication informing defendant of the reasons for his

detention.    The officer's actions in continuing to engage

defendant by providing him updates on the progress of the

investigation were unnecessary, and the officer should have

known they would be likely to elicit an incriminating response,

either exculpatory or inculpatory.      See Innis, supra, 446 U.S.

at 301 n.5, 100 S. Ct. at 1689 n.5, 64 L. Ed. 2d at 308 n.5.

They should not have been undertaken prior to providing

defendant with Miranda warnings.      Accordingly, we reverse the

decision to admit defendant's statements to the police and

remand for further proceedings consistent with this opinion.

                     Defendant's Sentence

    Because our decision does not mandate the reversal of

defendant's conviction, but only allows him the opportunity to

withdraw his guilty plea, R. 3:9-3(f); State v. Cummings, 184

N.J. 84, 100 (2005), we address, and reject, his arguments

regarding his sentence.




                                 27                           A-4309-13T2
    Our review of a trial court's sentencing determination is

both limited and deferential.    State v. Fuentes, 217 N.J. 57, 70

(2014).    That is particularly true where defendant has bargained

for the sentence imposed pursuant to a plea agreement.        Id. at

70-71.    Having reviewed the sentencing transcript, we are

convinced that defendant's arguments that the judge double-

counted the use of a gun in the commission of the armed robbery

and erred in finding aggravating factors three, six, and nine

are without sufficient merit to warrant discussion in a written

opinion.    R. 2:11-3(e)(2).   We are satisfied the judge's

findings and balancing of the aggravating and mitigating factors

are supported by adequate evidence in the record, and the

sentence is neither inconsistent with sentencing provisions of

the Code of Criminal Justice nor shocking to the judicial

conscience.    See Fuentes, supra, 217 N.J. at 70; State v.

Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J.

165, 180-81 (2009).

                           Conclusion

    The decision to admit the identification evidence is

affirmed.     The decision to admit defendant's statements to the

police is reversed and the matter is remanded to the trial

court, where defendant may elect either to withdraw his plea and

proceed to trial with his statements to the police excluded, or




                                  28                           A-4309-13T2
to accept his earlier conviction and sentence.   We do not retain

jurisdiction.

    Affirmed in part; reversed in part and remanded.




                               29                         A-4309-13T2
