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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4504-07T44504-07T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN A. SULLIVAN, Defendant-Appellant. ____________________________________________________

Submitted March 25, 2009 - Decided Before Judges Cuff and Fisher. On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-05-0196. Yvonne Smith Segars, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel and on the brief). Thomas S. Ferguson, Warren County Pros-ecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief). PER CURIAM On the evening of December 31, 2005, at a New Year's Eve party at a private residence in Lopatcong, defendant began acting belligerently toward other guests, including Jason Bergmann. After midnight, defendant began yelling at Bergmann, leading to a push by Bergmann and a punch by defendant. Eventually, Bergmann, Stefan Tarnawsky and Justin Rusin left the party, but soon realized they were followed by defendant and three others. After chasing and having a brief physical exchange with Tarnawsky, defendant returned to where Bergmann was surrounded by others. Defendant punched Bergmann in the nose, Bergmann swung back, and the two fell to the

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ground. Someone kicked Bergmann, and then defendant and others punched, kicked and stomped on Bergmann, who called for help and attempted to protect himself by holding his arms over his head. Tarnawsky explained in his testimony how defendant stomped on Bergmann not "play[fully]" but "to break bones." This melee continued until someone was able to pull defendant away. Bergmann was helped off the concrete driveway by his friends. Tarnawsky observed that Bergmann "had a swollen eye and he was bleeding . . . from his mouth[,] one tooth was almost knocked out[, and] [h]is whole face was swollen." Bergmann, Tarnawsky and Rusin walked away from the area but did not get far before being stopped by a police officer, who called for an ambulance to take Bergmann to the hospital. Bergmann later gave police a written statement and identified defendant from a photographic array. Defendant was arrested and charged with second-degree aggravated assault, 151 N.J. 117, 221 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed.2d 683 (2000), and that the State may not use at trial an accused's silence at or near the time of his arrest against him, State v. O'Neill, 193 N.J. 148, 177 (2007). Contrary to defendant's contentions, however, the State did not offer trial testimony regarding his silence but instead elicited statements voluntarily made by defendant after he was advised of his right to remain silent. The record reveals that Detective Michael Patricia testified about what defendant said to him after he was advised of his Miranda rights. Specifically, after being read his rights, defendant voluntarily said to Detective Patricia, "I'm not going to admit to anything unless you can help me out." This statement was not an invocation of a right to remain silent. To the contrary, defendant voluntarily spoke after being advised of his right to remain silent. As a result, the State had the right to use this statement at the time of trial. Defendant's other comment about the night in question -- "as far as I'm concerned, I was at Hoot's[] part of that night" -- was not an attempt to invoke the right to remain silent but a voluntary statement given in support of a potential alibi. To the extent relevant, the prosecutor was entitled to both elicit this testimony and to comment upon it in his argument to the jury. Lastly, we note that defendant did not object during Detective Patricia's testimony, requiring that we apply the plain error standard. For the reasons stated, we find no error, let alone plain error, in the admission of any of this evidence. Affirmed. The record refers to this individual as both Justin Rustin and Justin Rusin.

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Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966). Contrary to the contention made for the first time on appeal, this statement was not rendered inadmissible as a statement made during the course of a plea proceeding or as part of plea negotiations. See N.J.R.E. 410. The record reveals that the statement was simply volunteered by defendant and was not a response to or part of any discussion of a plea agreement. A reference to a local tavern. (continued) (continued) 5 A-4504-07T4 April 14, 2009 0x01 graphic

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