STATE OF NEW JERSEY VS. O.D.A.-C. (14-12-1997, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

S
                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2932-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

O. D. A.-C.,

     Defendant-Appellant.
__________________________

                   Submitted October 14, 2020 – Decided February 8, 2021

                   Before Judges Fisher, Gilson and Moynihan (Judge
                   Gilson dissenting).

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 14-12-1997.

                   John Vincent Saykanic, attorney for appellant (John
                   Vincent Saykanic, on the brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (Edward F. Ray, Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
       Defendant O. D. A.-C.1 appeals from a judgment of conviction filed after

he pleaded guilty to second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a) (count twelve), reserving his right to appeal from the trial court's

denial of his motion to suppress a statement he gave to a Bergen County

Prosecutor's Office (BCPO) detective and a Hackensack detective after he was

transported to a police station directly from a medical center from which he was

discharged. On appeal, he argues:

             POINT I

             DEFENDANT'S   STATEMENT     MUST    BE
             SUPPRESSED AS THE FRUIT OF AN ILLEGAL
             ARREST BECAUSE HIS MIRANDA[2] AND
             CONSTITUTIONAL RIGHTS WERE VIOLATED AS
             HE WAS INVOLUNTARILY TAKEN INTO
             INVESTIGATORY DETENTION FROM THE
             BERGEN REGIONAL MEDICAL CENTER (THE
             CONSTITUTIONAL   EQUIVALENT    OF  AN
             ARREST).

             POINT II

             THE COURT BELOW ERRED IN FINDING THAT
             DEFENDANT KNOWINGLY, INTELLIGENTLY
             AND VOLUNTARILY WAIVED HIS MIRANDA
             RIGHTS; DEFENDANT COULD NOT HAVE MADE
             A KNOWING, INTELLIGENT[] AND VOLUNTARY

1
  We use defendant's initials to protect the privacy and identity of the victim.
R. 1:38-3(c)(12).
2
    Miranda v. Arizona, 

384 U.S. 436

(1966).
                                                                          A-2932-18
                                       2
            WAIVER OF HIS MIRANDA RIGHTS BASED ON
            THE       DETECTIVE'S       MISLEADING
            PRESENTATION OF THOSE RIGHTS.

      We determine defendant's argument that he was illegally arrested to be

without sufficient merit to warrant discussion. R. 2:11-3(e)(2). Defendant was

not arrested until after the statement was completed, and, in any case, the

victim's statement to police describing the numerous times defendant assaulted

her3 established probable cause to arrest him. See State v. Basil, 

202 N.J. 570

,

585-87 (2010).

      Although we must uphold a trial court's factual findings when "supported

by sufficient credible evidence in the record," State v. Scriven, 

226 N.J. 20

, 40

(2016); see also State v. Boone, 

232 N.J. 417

, 425-26 (2017), especially when

those findings "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


3
  The victim's statement was not included in the appellate record. While taking
defendant's statement, the BCPO detective told him the victim's allegations:

            You know, she described the bed to us that she's been—
            in the bed, you would come into the room, you know,
            climb into the bed with her, you used to touch her breast
            area, underneath her clothing[,] and you used to put
            your hand underneath her clothing and touch her
            vagina, all right. You also used your mouth and kissed
            her neck, told her you loved her. You kissed her vagina,
            you kissed her mouth, uh, kissed her breast area.
                                                                           A-2932-18
                                       3
enjoy," State v. Johnson, 

42 N.J. 146

, 161 (1964); see also State v. Gamble, 

218 N.J. 412

, 424-25 (2014), we owe no deference to conclusions of law made by

trial courts in suppression decisions which we review de novo, State v. Watts,

223 N.J. 503

, 516 (2015). Because the Hackensack detective's statements during

questioning vitiated defendant's Miranda rights, we are compelled to reverse the

trial court's denial of defendant's suppression motion.

      In its written decision, rejecting defendant's argument to the contrary, the

trial court agreed with the State's assertion that defendant was not in custody

when he was questioned by the detectives, finding credible the BCPO detective

and a Hackensack police officer who both testified at the suppression-motion

hearing that defendant was not handcuffed when he agreed to go with the police.

The trial court also credited the police officer's testimony that "he believed that

. . . defendant would have been free to go when he wanted."

      The police officer's belief, however, should not have been considered in

determining whether defendant was in custody. Instead,

            [t]he test of whether an individual is in custody for
            Miranda purposes is an objective test, which focuses on
            the totality of the circumstances. The circumstances
            include the time and place of the interrogation, the
            length of the interrogation, the conduct of the
            interrogators and the status of the suspect. "[C]ustody
            exists if the action of the interrogating officers and the
            surrounding circumstances, fairly construed, would

                                                                             A-2932-18
                                        4
            reasonably lead a detainee to believe he could not leave
            freely."

            [State v. Messino, 

378 N.J. Super. 559

, 576 (App. Div.
            2005) (citations omitted).]

      The defendant in Messino, like defendant, voluntarily agreed to

accompany police to be interviewed and was not placed under arrest.

Ibid. We concluded a

reasonable person in that defendant's stead would not have felt he

could depart because he was not told he was free to go and there was no practical

way for him to leave the distant prosecutor's office.

Id. at 576-77.

    The

circumstances here more compellingly meet the objective standard for custody.

      Even if defendant agreed to go with the officers to the police station and

was not handcuffed or arrested, the circumstances, as testified to by the State's

witnesses, evidence defendant's custodial status.       After the Hackensack

detective learned defendant was to be medically discharged, a Hackensack

police sergeant and the officer who testified went to the medical center. The

officer stood by defendant while he completed his discharge documents to "keep

an eye" on him for ten to fifteen minutes until the BCPO detective arrived. The

officer moved defendant out of the discharge room to the lobby area where the

BCPO detective spoke to defendant. After the Hackensack sergeant and the

BCPO detective discussed "where the statement [from defendant] was going to


                                                                            A-2932-18
                                       5
[take] place," the testifying officer transported defendant to the police station;

the officer drove while the Hackensack sergeant sat in the rear of the police

vehicle with defendant during the ten-to-fifteen-minute drive. At the police

station, defendant was brought to and "placed in" an interview room by the

police.

      During the near thirty-five-minute statement, it was clear defendant was a

suspect in the sexual crimes committed against his girlfriend's granddaughter.

The BCPO and Hackensack detectives recounted both the statement they took

from the victim during which she described the numerous times defendant

touched her when she was eleven or twelve years old and the interviews of other

people who provided consistent statements.           The detectives told defendant

"there's nothing that's telling us that this girl is lying"; "there's nothing that she's

saying that we feel doubtful about"; "[t]his girl is not confused about what

happened"; "we did our investigation and we feel comfortable that . . . what she's

telling us is true"; "[w]e don't doubt that [the assaults] happened . . . [w]e believe

what she has to say . . . [n]ow, we're here today to hear . . . your version of

events." The detectives told defendant: "[T]here is a case against you, that's

why you're here, that's why we were looking for you last week . . . when we

went to your house and found out that you had gone to [the medical center.]"


                                                                                 A-2932-18
                                           6
They continued: "This is not something that's going away, all right?" And,

later: "We did the investigation up to the point where we've reached the end,

where we had to confront you . . . and see what you had to say."

        Though defendant was told he was not under arrest, he was never told he

was free to leave.      The detectives did not question defendant to obtain

information. They questioned him to obtain confirmation. The detectives

compiled an abundance of evidence from the victim and other witnesses, which

they made plain to defendant. That information, especially in light of the

credence the detectives gave to that evidence, together with the police conduct

at the medical center, en route to the interview room at the police station and in

the interview room, would not leave a reasonable person to think he or she was

leaving the police station when questioning ended. See State v. Pearson, 

318 N.J. Super. 123

, 134-35 (App. Div. 1999).

        Although we disagree with the trial court's determination that defendant

was not in custody, we agree with its conclusion that the detectives initially

complied with the mandate that Miranda warnings 4 be administered to subjects


4
    A person subject to custodial interrogation must be told:

              [1] that he has the right to remain silent, [2] that
              anything he says can be used against him in a court of


                                                                            A-2932-18
                                         7
of "custodial interrogation," see 

Miranda, 384 U.S. at 444-45

, "[t]o counteract

the inherent psychological pressures in a police-dominated atmosphere that

might compel a person 'to speak where he would not otherwise do so freely,'"

see State v. Nyhammer, 

197 N.J. 383

, 400 (2009) (quoting 

Miranda, 384 U.S. at 467

).     Those warnings are "prophylactic measures that are necessary to

safeguard the essential constitutional right against self-incrimination." State v.

Burris, 

145 N.J. 509

, 518 (1996).

        The trial court found defendant said he understood each right read to him,

as well as the waiver read to and read by defendant, and that he signed the

document waiving his rights. We also note the trial court's observation that this

was not defendant's "first experience with law enforcement," defendant having

acknowledged during his statement giving a statement to law enforcement on a

prior occasion. And the trial court recognized defendant's invocation of his right

to counsel that ended the interview, concluding "defendant's rights were not

violated and [his] statement was made with a valid waiver of those rights."




              law, [3] that he has the right to the presence of an
              attorney[] and [4] that if he cannot afford an attorney
              one will be appointed for him prior to any questioning
              if he so desires.

              

[Miranda, 384 U.S. at 479

.]
                                                                            A-2932-18
                                         8
      The administration of Miranda warnings does not obviate the need for our

analysis of the statement's voluntariness, a legal issue requiring our independent

review.   State v. Pillar, 

359 N.J. Super. 249

, 268-69 (App. Div. 2003).

Defendant argues the Hackensack detective's comments at key intervals during

defendant's statement directly contradicted the warnings he administered,

neutralizing their purpose and rendering the statement involuntary.

      Just before defendant was Mirandized, the BCPO detective told defendant

the Hackensack detective was "gonna go through some information and some

questions [the detectives] ha[d] to ask [him] first before [they] can talk to [him]."

The Hackensack detective began the administration of rights by telling

defendant: "Just a formality. [O. D. A.-C.], I just have to read you your rights,

okay? Just tell me if you understand them, if you don't, I'll explain them to you."

      Approximately twenty-three minutes into the interview—after the

detectives had detailed the victim's allegations and expressed their belief in their

veracity, during which defendant was largely reticent—the BCPO detective and

defendant had this exchange:

             [BCPO Detective:] That's how she knows when it
             ended. She said it never happened after Hurricane
             Sandy. It happened—so she knows she was [thirteen]
             when it ended. The last time was before that storm.
             That she remembers but she can't remember when it
             started but it happened somewhere between [eleven]

                                                                               A-2932-18
                                         9
             and [twelve] and ended October of last year,
             somewhere before, before that storm and she says it's
             [eight] to [fifteen] times, okay. That's the number she
             gives us, you know. Is that too many? Or is it—

             [Defendant:] It's too many.

             [BCPO Detective:] Is it [fifteen] times that this
             happened?

             [Defendant:] [Fifteen] times?

             [BCPO Detective:] [Twenty] times?

             [Defendant:] I don’t—I don't think so.

             [BCPO Detective:] You don't think so?

             [Defendant:] I don't think so.

             [Hackensack Detective:] A couple times?

             [BCPO Detective:] It happened once or twice, is it more
             likely that's what happened? Is that number too big?
             [O. D. A.-C.], be truthful with me, I know—I could see
             it in your face, you wanna get it out in front of us—

             [Hackensack Detective:] And you're gonna feel so
             much better about yourself once you do get it out.

             [Defendant:] If you turn that off and then I—

      The BCPO detective immediately interrupted defendant and told him, "I

can't turn that off, okay. . . . And this room is being recorded also. . . . That's a

law, that's to protect you." But the Hackensack detective interjected:


                                                                               A-2932-18
                                        10
            What we talk about in here is between us, that's why I
            b[r]ought you in this room, I didn't wanna speak about
            it in front of the secretary and in front of the other
            people in there. We have civilians walking into that
            room, that wouldn't be fair to you or us having people
            coming in there listening to what we're talking about.
            We're in here, it's confidential between us, it's staying
            between us, okay.

      Defendant then told the detectives about his steroid use and agreed with

the Hackensack detective that it caused him to do "silly things." The detectiv es

continued questioning about the number of assaults:

            [BCPO Detective:] Well, how many times do you think
            this happened? Really? Is it more than [fifteen]?

            [Defendant:] I don't know what to tell you guys. I
            mean, you put it—it's like—

            [Hackensack Detective:] You gotta just tell the truth.
            We don't wanna put words in your mouth.

            [BCPO Detective:] Well, I'm not saying—listen, I'm
            not saying—it's not a hundred, right? This didn't
            happen a hundred times? You didn't touch this girl a
            hundred times? Right?

            [Hackensack Detective:] And she's not even saying
            that.

            [Defendant:] Hundred times. Not [fifteen].

            [BCPO Detective:] Okay, not [fifteen].

            [Defendant:] Not ten.


                                                                           A-2932-18
                                      11
            [BCPO Detective:] So is it—not ten? So you think it
            was less than [ten]? You know, kids don't know
            numbers that well, you know, this is a hard thing for
            her, she's only a little girl and, and you know to have
            this thing happen to her and then for me to ask her how
            many times, she doesn't know. So she was taking a
            guess at [fifteen]—between [eight] and [fifteen]. That's
            the number she gave me, but I want to hear it from you.
            Is it something that happened more than once?

            [Defendant:] I don't know what to tell you.

            [BCPO Detective:] Well, that's not a hard question.
            We're already at the point it happened, right? We're
            just at the point of how many times.

            [Defendant:] Well, first of all, when you make me write
            that, it say[s] that anything that I say, it goes against
            my, you know.

            [BCPO Detective:] That's your—

            [Hackensack Detective:] That's a formality, that's what
            it is.

            [Defendant:] [I]t's gonna work against me. So if I tell
            you yes, I did it or no I didn't, it's not, so, you know.

      In determining the voluntariness of defendant's statement, we analyze, as

part of the totality of the circumstances, see State v. Warmbrun, 

277 N.J. Super. 51

, 62 (App. Div. 1994), the detective's repeated misrepresentations that

Miranda warnings were "a formality" and that defendant's conversation with the

detectives was "confidential between" them, recognizing "misrepresentations


                                                                           A-2932-18
                                      12
alone are usually insufficient to justify a determination of involuntariness or

lack of knowledge," see State v. Cooper, 

151 N.J. 326

, 355 (1997); see also

Pillar, 359 N.J. Super. at 269

. "Moreover, a misrepresentation by police does

not render a confession or waiver involuntary unless the misrepresentation

actually induced the confession." 

Cooper, 151 N.J. at 355

.

      In isolation, the detective's first comment that the Miranda warnings were

just "a formality" could be overlooked as an offhand remark that simply

preceded the warnings defendant said he understood and waived. But all the

detective's statements have to be viewed in context.

      The detective told defendant that their discussion was "between" them and

was "confidential" and "staying between us" only after defendant asked for the

recording to be turned off. Moreover, that comment followed and countered the

BCPO detective's explicit denial of defendant's request to "turn that off." And

it prompted defendant to make further disclosures about how his steroid use

caused him to do "silly things" and the number of assaults.

      Furthermore, when defendant did not give the detectives a definite number

and harkened to the Miranda warning that anything he said would be used

against him, the Hackensack detective undercut that right by repeating his prior

statement that the warnings were "a formality."


                                                                          A-2932-18
                                      13
      Immediately following that misrepresentation, the BCPO detective

reiterated that defendant was not under arrest and that he "sat [defendant] down

[and] told [him] what [his] rights [were]," including that defendant had "the right

to not tell [the detectives] anything [he] want[ed]." The BCPO detective also

told defendant anything he told the detectives might "help [the BCPO detective]

when [he] talk[ed] to [his] bosses, or a judge, or a jury or whoever else gets

involved in this after this point." The BCPO detective continued:

            I need to be able to feel right for myself that I didn't
            misjudge you and think then maybe you are a bad guy,
            you know, maybe I misjudged that cause I don't think
            you are and I think you're just a little afraid to tell me
            what happened right now, but you've already pretty
            much admitted to me that this did happen by saying,
            "well, it didn't happen that many times." You said,
            "well not [fifteen]."

When the Hackensack detective added, "[a] couple times," defendant responded,

"maybe five."    After one of the detectives repeated, "[m]aybe five times,"

"[m]aybe not five," defendant responded, "[m]aybe a couple times, maybe not."

      The BCPO detective's reiteration of defendant's right to remain silent did

nothing to dispel the Hackensack detective's abrogation of the warning that

anything defendant said could be used against him. That detective was not

merely telling defendant he did not want their conversation overheard by others

in the police station, as evidenced by his statement near the end of the interview

                                                                             A-2932-18
                                       14
when he told defendant, "[a]nything you say, like I said, is only going to help

you, it's not going to hurt you. You understand what I'm saying?"

      As we held in Pillar, "[a] police officer cannot directly contradict, out of

one side of his mouth, the Miranda warnings just given out of the 

other.” 359 N.J. Super. at 268

. The Hackensack detective's assurance of confidentiality

undermined the Miranda warning that anything defendant said could be used

against him "at least with respect to a statement made . . . in immediate and

direct response to the misleading assurance." See

ibid. It also rendered

the

balance of the statement involuntary. See

id. at 269.

      To be sure, defendant had prior encounters with police interrogation,

confirmed he understood the Miranda warnings, knew his statement was

recorded and eventually invoked his right to counsel ending the interview. But

the Hackensack detective's statements undermined the warnings from the start

and continued to misrepresent their effect. His numerous misrepresentations

drew admissions as to the number of assaults from an otherwise-reticent

defendant.    The timing of those misrepresentations calls into question

defendant's true understanding of his rights. See State v. Puryear, 441 N.J.

Super. 280, 297 (App. Div. 2015) ("The focus of a Miranda analysis should be

on whether the defendant had a clear understanding and comprehension of his


                                                                            A-2932-18
                                      15
or her Miranda rights based on the totality of the circumstances."). Thus, the

State failed to carry its burden "to prove beyond a reasonable doubt that a

defendant's waiver is knowing, voluntary[] and intelligent." See

ibid. Our conclusion that

the trial court's legal analysis was not entirely correct

leads us to reverse its denial of defendant's motion to suppress. See State v.

K.W., 

214 N.J. 499

, 507 (2013). Because the Hackensack detective built upon

the initial misrepresentation that the Miranda warnings were just a formality, the

entire statement must be suppressed. We also vacate defendant's conditional

plea.

        Like our dissenting colleague, we well realize the victim may have to

recount defendant's alleged attacks.          That is the deplorable result of the

Hackensack detective's conduct during defendant's statement.             We cannot

countenance the detective's blatant end-run around measures designed to protect

bedrock constitutional guarantees.

        So too, we recognize the impact of the passage of time since the alleged

assaults. But, if the passage of time from the alleged crime to the recognition

of a breach of a defendant's constitutional rights is relevant, there is no evidence

to suggest defendant did anything to delay the progress of this prosecution

except timely assert his rights. The record reveals that defendant moved to


                                                                               A-2932-18
                                         16
suppress his statement to the police in March 2016. An initial Miranda hearing

did not occur until almost seventeen months later, and testimony was not

continued until December 2017. The issue was not decided until March 2018,

two years after defendant moved to suppress. Defendant pleaded guilty six

months later, was sentenced a few months after that, and then timely filed this

appeal.    We appreciate the unfortunate impact suppression of defendant's

statement may have on the victim, but we do not agree that the pace at which

this matter progressed – through no fault of defendant – and the consequential

passage of time, should somehow result in the forfeiture of defendant's

constitutional rights. 5

      Reversed and remanded. We do not retain jurisdiction.




5
   We also note that the State has not argued that the denial of defendant's
suppression motion may be affirmed because of the impact on the victim, nor
are we aware of any authority that would justify such a conclusion.
                                                                         A-2932-18
                                     17
                         RECORD IMPOUNDED

____________________________

GILSON, J.A.D., dissenting.

      Following an evidentiary hearing, the trial court found that defendant had

been given his Miranda rights, had knowingly, voluntarily, and intelligently

waived those rights, and had agreed to speak with two detectives. Thus, the trial

court denied defendant's motion to suppress his statement. My colleagues reject

the trial court's findings and hold that defendant's Miranda rights were vitiated

based on two statements made by one of the detectives: (1) the warnings were

a "formality"; and (2) the interview was confidential. Viewed in context, neither

of those improper statements undermined the clear and correct Miranda

warnings given to defendant.       I therefore respectfully disagree with my

colleagues, defer to the factual findings made by the trial court, and dissent.

      Certain facts are not in dispute. In September 2013, the granddaughter of

defendant's girlfriend told police that defendant had repeatedly sexually

assaulted her over a two-year period when she was between the ages of eleven

and thirteen. At that time, defendant was in his forties. Shortly after those

allegations were made, defendant checked himself into a hospital. Thereafter,

law enforcement personnel learned that defendant was being discharged, met

him at the hospital, and requested defendant to come to a police station to give

a statement. Defendant was then taken to the police station where he was
interviewed for approximately thirty-five minutes by two detectives: a detective

from the Bergen County Prosecutor's Office (BCPO) and a detective from the

Hackensack Police Department.

      At the beginning of the interview, the detectives told the defendant that

they were going to "go through some information and some questions[.]" The

Hackensack detective then stated: "Just a formality. [O. D. A.-C], I just have

to read you your rights, okay? Just tell me if you understand them, if you don't,

I'll explain them to you." The Hackensack detective then read defendant each

of his Miranda rights from a form. Defendant acknowledged he understood each

right. He then initialed the form next to each of his rights and signed a statement

agreeing to waive those rights and to speak with the detectives.

      The detectives next confirmed that defendant understood what was

happening, that he was thinking clearly, and that he was not under the influence

of any alcohol or drugs that interfered with his ability to understand the

interview process. Thereafter, the BCPO detective told defendant about the

allegations made by the girl. Defendant did not deny those allegations; rather,

he responded with non-definitive replies such as "um-hmm," "okay," and "I

understand."




                                                                             A-2932-18
                                        2
      The detectives then told defendant that the girl claimed he had touched

and rubbed her chest and vagina eight to fifteen times, and they asked: "Is that

too many? Or is it - -" Defendant responded: "It's too many." The following

exchange then took place:

            [The BCPO Detective] Is it 15 times that this
            happened?

            [Defendant] 15 times?

            [The BCPO Detective] 20 times?

            [Defendant] I don’t - - I don't think so.

            [The BCPO Detective] You don't think so?

            [Defendant] I don't think so.

            [The Hackensack Detective] A couple times?

            [The BCPO Detective] It happened once or twice, is it
            more likely that's what happened? Is that number too
            big? [O. D. A.-C], be truthful with me, I know - - I could
            see it in your face, you wanna get it out in front of us -
            -

            [The Hackensack Detective] And you're gonna feel so
            much better about yourself once you do get it out.

            [Defendant] If you turn that off and then I - -

            [The BCPO Detective] I can't turn that off, okay.

            [Defendant] And this - -


                                                                          A-2932-18
                                        3
[The BCPO Detective] And this room is being recorded
also. I can't - -

[Defendant] I know but that's I got - - IA - -

[The BCPO Detective] That's a law, that's to protect
you.

[The Hackensack Detective] What we talk about in here
is between us, that's why I bought you in this room, I
didn't wanna speak about it in front of the secretary and
in front of the other people in there. We have civilians
walking into that room, that wouldn't be fair to you or
us having people coming in there listening to what
we're talking about. We're in here, it's confidential
between us, it's staying between us, okay.

[The BCPO Detective] It has - -

[The Hackensack Detective] You're at the point where
you want to tell us what happened and that's fine, okay.

[Defendant] What I was gonna tell you, you know, it
was, uh, I was - - I was, was injecting myself.

[The Hackensack Detective] You was what?

[Defendant] Injecting, you know.

[The BCPO Detective] You were injecting yourself?

[Defendant] You know, with - -

[The BCPO Detective] Like, steroids?

[Defendant] Steroids.

[The BCPO Detective] Okay.

                                                            A-2932-18
                            4
           [The Hackensack Detective] Okay.

           [The BCPO Detective] Is that why this happened?

           [Defendant] No, maybe happen, you know, when you
           inject yourself, I mean - -

           [The Hackensack Detective] You do silly things.

           [Defendant] You do silly things.

     The BCPO detective then asked how many times it happened, and

defendant replied:   "I don't know what to tell you guys."        The following

exchange then took place:

           [The BCPO Detective] Well, that's not a hard question.
           We're already at the point it happened, right? We're
           just at the point of how many times.

           [Defendant] Well, first of all, when you make me write
           that, it say that anything that I say, it goes against my,
           you know.

           [The BCPO Detective] That's your - -

           [The Hackensack Detective] That's a formality, that's
           what it is.

           [Defendant] - - IA - - it's gonna work against me. So if
           I tell you yes, I did it or no I didn't, it's not, so, you
           know.

           [The BCPO Detective] [O. D. A.-C], like I said to you
           before, this is your opportunity to tell us in your words,
           I told you - - I'm being a hundred percent truthful with

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             you, if you feel in any way that I've lied to you in any
             way about anything in bringing you here, I've been
             truthful with you at the hospital - -

      The BCPO detective then reminded defendant of his rights, including his

right not to tell the detectives anything. The BCPO detective then referenced

defendant's use of steroids and asked: "Do you think the steroids is what made

you do these things?" Defendant responded: "I don't know. I mean, I - - that's

the only thing I can tell you. I was using ster - - steroids at the time, I really - -

I don't know. If you say that she says that maybe I wake in the middle of the

night or something like that, you know." Shortly thereafter, defendant asked to

have a lawyer present and the detectives ended the interview.

      The trial court had the opportunity to hear testimony from the BCPO

detective and defendant and credited the testimony of the detective. The trial

court then found that defendant had been given his full Miranda rights and had

knowingly, voluntarily, and intelligently waived those rights. In making that

finding, the court rejected defendant's argument that he was confused by the

reference to the warnings as a mere formality. The trial court also rejected

defendant's argument that he believed the interview was confidential. The trial

court noted that defendant acknowledged that this was not the first time he had




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been questioned by police and that throughout the interview defendant exhibited

a clear understanding of what was going on and his rights.

      Given that the trial court made those findings after hearing defendant's

testimony and reviewing the audio and video recording of the interview, I

discern no basis for rejecting those findings.    See State v. S.S., 

229 N.J. 360

,

380-81 (2017) (holding that a trial court's factual finding based on review of a

video recording are entitled to deference). Accordingly, reversal is warranted

only if the trial court's determination is "so clearly mistaken 'that the interests

of justice demand intervention and correction.'" State v. Gamble, 

218 N.J. 412

,

425 (2017) (quoting State v. Elders, 

192 N.J. 224

, 244 (2007)). This is not such

a case.

      My colleagues are correct that the Hackensack detective improperly

referred to the Miranda warnings as a formality and improperly told the

defendant that the interview was confidential. Both those statements, however,

were made in a context that did not vitiate the proper Miranda warnings. Right

after the "formality" reference was made, defendant was read his rights and

shown a Miranda card with each of his rights. He acknowledged both orally and

in writing that he understood each of the rights, signed a waiver of those rights,

and agreed to speak with the detectives. See, e.g., State v. Nyhammer, 197 N.J.


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383, 400-01, cert. denied, 

558 U.S. 831

(2009); State v. Knight, 

183 N.J. 449

,

462-63 (2005); State v. Bey, 

112 N.J. 123

, 135 (1988) (citing Schneckloth v.

Bustamonte, 

412 U.S. 218

, 226 (1973)).

      Moreover, a review of the recorded interview demonstrates that the trial

court's finding that defendant understood his rights throughout the interview is

supported by defendant's conduct. See State v. A.M., 

237 N.J. 384

, 399-400

(2019) (finding suspect's calm, alert appearance, ability to appreciate and answer

questions posed, and opportunity to read Miranda waiver provision worked

against implication he was confused or did not appreciate his rights). See also,

State v. W.B., 

205 N.J. 588

, 603 n.4 (2011) ("As the finding of compliance with

Miranda and voluntariness turned on factual and credibility determinations, we

need only find sufficient credible evidence in the record to sustain the trial

judge's findings and conclusions." (citing 

Elders, 192 N.J. at 242-44

)).

      Even when told that the interview was confidential, defendant recognized

that the interview was being recorded. When he asked to have the recording

turned off the BCPO detective told him that the recording could not be turned

off and reminded him that he did not have to speak with the detectives.

Furthermore, defendant's statements during the interview, including his

comment that confessing would "work against [him]" belie the contention that


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his understanding of his rights was undone by the Hackensack detective. Indeed,

toward the end of the interview, after the detective unwisely stated anything

defendant said would only "help [him]," not "hurt [him]," defendant

immediately expressed his discomfort and, as the trial court found, elected to

end the interview by invoking his right to have counsel. Again, those findings

are amply supported by the record. See 

A.M., 237 N.J. at 399

(citing 

S.S., 229 N.J. at 365

) (affirming denial of motion to suppress because "sufficient credible

evidence in the record support[ed] the trial court's findings").

      In short, while the two misstatements by the Hackensack detective were

improper, they did not undermine the clear Miranda warnings that had been

given to defendant or his knowing, intelligent, and voluntary waiver of those

warnings.

      We also need to recognize and consider the ramifications of a reversal.

Several months after the denial of his motion to suppress his statement,

defendant, with the advice of counsel, pled guilty to second-degree endangering

the welfare of a child. During that plea, he admitted that he had engaged in

sexual conduct by touching the granddaughter of his girlfriend in her "private

areas" with his hands. That conduct took place in 2010 to 2012, when the girl

was between the ages of eleven and thirteen. A reversal now in 2020 would


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vacate defendant's guilty plea and would require the girl to have to relive her

abuse by potentially testifying at a trial.

      Certainly, if there had been a clear violation of defendant's Miranda rights,

reversal would be a necessary ramification. But for the reasons I have already

detailed, I do not see a violation of defendant's Miranda rights. Moreover, I do

not see a clear violation in light of the factual findings made by the trial judge,

who had the benefit of hearing live testimony from the BCPO detective, and

defendant, as well as reviewing the recorded interview. For all those reasons, I

would affirm the trial court's decision to deny defendant's motion to suppress

his statement and, therefore, I dissent.




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