NOT FOR PUBLICATION

PER CURIAM.

After the denial of his motion to bar evidence of statements he made to the police, defendant, Julio Henriquez, proceeded to trial.1 Defendant's statements were presented to the jury as part of the State's proofs. Defendant was convicted of three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), each pertaining to a separate victim. He was sentenced to three consecutive terms of five years imprisonment, subject to an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. In this appeal, defendant challenges the denial of his motion and the propriety of his sentence. More particularly, defendant argues:

In a supplemental pro se brief, defendant further argues that the prosecutor engaged in misconduct in certain comments he made during summation and in certain questions he posed to a witness.

We reject these arguments and affirm.

The charges against defendant arose out of a street battle between two large groups of combatants that occurred in Perth Amboy on August 29, 2006. Defendant and one other individual in his group were armed with guns. Apparently no one in the other group possessed guns. Defendant and his compatriot fired a barrage of shots. Two individuals in the other group and one individual in defendant's group were struck by the gunfire. None of the wounds were lethal.

The investigation quickly led to defendant, and at about 6:30 p.m. on the evening of the shooting, police arrested him as he was leaving his home. He had a loaded handgun on his person. Defendant was placed under arrest and taken to the Perth Amboy police station. He was detained there until September 1, 2006. During that time, he was kept in a holding cell and, from time to time, taken to an interview room in the detective bureau, where he was questioned.

Defendant does not dispute that the police explained to him his Miranda2 rights before each statement he gave, and that he understood his rights and signed a form acknowledging that he waived them and agreed to speak to the police. He asserts, however, that his statements were not voluntary due to coercion by the police. Defendant provided the police with three statements. The first two were tape recorded, and the third was videotaped. It was in the third statement that defendant confessed to his involvement in the incident.

Judge Frederick P. DeVesa conducted the Miranda hearing on April 7, 2008. The judge heard the testimony of Detective Carl D. Graham, Jr. and defendant. He also listened to the two audiotapes and viewed the videotape.3

The parties stipulated that defendant was offered food during the time he was confined at the Perth Amboy police station. Detective Graham acknowledged that defendant's demeanor appeared much more outgoing on the videotape of the third statement than it had been in the first two statements. He said that defendant did not appear to be fatigued or tired during the first two statements. He explained the difference by pointing out that defendant did not know he was being videotaped during the third statement and was apparently less inhibited in his demeanor.

In his first statement, defendant denied any involvement in the incident. He was returned to his cell. The police then brought him back to the interview room and confronted him with evidence that contradicted his first statement. Defendant then acknowledged some limited role in the incident, but minimized his involvement. Finally, in the third statement, defendant confessed to his conduct.

Defendant testified that he repeatedly told the officers he wanted to be taken to the county jail. He claimed he told them he wanted to "plead the Fifth" and did not want to make any statements. He said the police continually harassed him and subjected him to constant and continued interrogation over the several days. He contended the police told him the quickest way for him to be transported to the county jail would be to tell the truth. He claimed it was cold in the holding cell and he had trouble sleeping there, having slept only about four hours his first night there. He said he kept telling the police he did not "want to give names" of others, but only wanted to take responsibility for his actions.

Defendant said that by the time of the third statement the police "had already broken [him] down," and that he was "psychologically drained." He was nineteen years old at the time. He said he had requested several times permission to call his mother, but he was not allowed to do so until about five minutes before giving the third statement. Defendant admitted that he had not been threatened or physically abused, and that he had been fed while in custody. He acknowledged that nowhere in the first two statements did he say anything about wanting to be transported to the county jail.

Judge DeVesa assessed what he heard from the two witnesses in the courtroom, together with what he heard on the two audiotapes and what he saw and heard on the videotape. Based upon all of that evidence, he found that defendant was not coerced, his will was not overborne, and he gave the statements voluntarily.

With respect to the first statement, the judge pointed out that defendant denied doing anything wrong, which "suggests to me that at that point he clearly is speaking voluntarily, and that his will is not overborne, because he's got enough free[]will to deny that he did anything wrong."

The judge then focused on the second statement, taken a "[c]ouple hours later" after defendant was "apparently confronted with some discrepancies in his version of what occur[ed]." After noting that defendant was again advised of his Miranda, the judge said:

Judge DeVesa then analyzed the third statement, given the next day and recorded on videotape. The judge noted that defendant was again advised of his Miranda rights. The judge then summarized what he observed on the videotape:

Judge DeVesa acknowledged that it was unusual for a suspect to be held at a local stationhouse for several days before being transported to a county correctional facility. However, he said that "when I look at the times, and I listen to the video tapes[,] the interrogation is not a straight interrogation for three days." The judge was further "satisfied from the testimony of the officers and the defendant that [defendant] was fed, [and] that he was allowed to go to the bathroom." The judge found that the conditions of defendant's confinement in the local stationhouse were no different than they would have been at the county jail. Thus, the judge did not believe that the location of defendant's confinement "had any bearing on breaking down his will."

The judge concluded as follows:

For a statement made by a defendant during custodial interrogation to be admissible in evidence, the State must prove beyond a reasonable doubt that the defendant was advised of his Miranda rights, understood them, and knowingly and voluntarily waived them before giving the statement. State v. Adams, 127 N.J. 438, 447 (1992). The State must also prove beyond a reasonable doubt that the statement was voluntarily given, under the totality of the surrounding circumstances on a case-by-case basis. N.J.R.E. 104(c); State v. Knight, 183 N.J. 449, 462 (2005); State v. Miller, 76 N.J. 392, 402-05 (1978). As we have previously stated, defendant does not contend that the Miranda warnings given were insufficient or that he did not understand them and sign a written waiver of his rights. He instead contends that the police conduct over the time of his confinement at the Perth Amboy police station was coercive and rendered his statements involuntary.

Judge DeVesa made a contrary finding based upon his credibility assessments of Detective Graham and defendant, and upon what he heard on the audiotapes and what he heard and saw on the videotape.

Our standard of review is a limited one. We will not interfere with the findings of a judge sitting without a jury if based upon substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). In matters such as these, "[a] disagreement with how the motion judge weighed the evidence in a close case is not a sufficient basis for an appellate court to substitute its own factual findings to decide the matter." State v. Elders, 192 N.J. 224, 245 (2007). This principle applies with equal force in circumstances like these in which the trial judge rested his or her findings, in whole or in part, on recorded evidence. Id. 244-45.

Our review of the record satisfies us that Judge DeVesa's finding of voluntariness is well supported by substantial credible evidence. We accordingly have no occasion to interfere with that finding.

We next consider defendant's remaining argument that the court erred in imposing consecutive sentences. Judge Dennis V. Nieves presided over the trial and imposed the sentence. In assessing the propriety of the sentence, we first note that, although Judge Nieves found several aggravating factors and no mitigating factors, he sentenced defendant on each count at the bottom of the second-degree range. The judge expressed his reason for rejecting defendant's request for concurrent sentences, namely that there were three separate victims.

We are satisfied that the judge did not exceed his discretion in imposing consecutive sentences in these circumstances. State v. Carey, 168 N.J. 413, 428 (2001); State v. Molina, 168 N.J. 436, 442-43 (2001); State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed. 2d 308 (1986), superseded, in part, by statute, N.J.S.A. 2C:44-5a, as recognized in State v. Eisenman, 153 N.J. 462, 478 (1998).

We are also satisfied that the judge's findings regarding aggravating and mitigating factors are well supported by the record, that the judge correctly applied the sentencing principles set forth in the Code of Criminal Justice, and that the overall sentence imposed is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Finally, we find no impropriety in the prosecutor's summation comments or questions posed to a witness to which defendant has directed our attention in his pro se supplemental brief.

Affirmed.