                                 NOT FOR PUBLICATION WITHOUT THE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-1226-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSE CARRION, a/k/a
JOSE CARRISON

     Defendant-Appellant.
__________________________

                   Submitted March 25, 2020 – Decided April 24, 2020

                   Before Judges Fuentes, Mayer and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 15-08-1788.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Gilbert G. Miller, Designated Counsel, on
                   the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Barbara A.
                   Rosenkrans, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Jose Carrion appeals from an August 28, 2017 judgment of

conviction, focusing his arguments on the denial of his motion to suppress his

subsequent warned statements made at the police station because he was not

advised that his prior unwarned statements at the time of his arrest could not be

used against him. Defendant also challenges various evidentiary rulings during

the trial. In addition, he argues a judgment of acquittal on certain counts should

have been granted. We affirm.

      We summarize the relevant facts. The victim owed money to defendant

purportedly for drugs purchased by the victim. Defendant, along with two other

individuals, sought to collect the money from the victim. However, the victim

was unable to repay defendant in full. According to the victim, defendant struck

him in the face with a hard object and pointed a gun at the ground. The gun

discharged and a bullet hit the victim's left ankle. The victim limped home and

the victim's mother called 9-1-1.

      When officers from the City of Newark Police Department arrived at the

victim's home, the victim explained he heard a shot and felt pain. The victim

was transported by emergency medical services to a nearby hospital for

treatment. Police officers canvassed the area where the shot was fired and found

a bullet fragment in the street near where the victim lived.


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                                        2
      After receiving treatment, the victim went to the Newark police station

and gave a statement. The victim said "Ariel" shot him, and provided Ariel's

telephone number and address to the police. The police went to the address

provided by the victim and spoke to defendant's wife. She gave the officers

defendant's real name and confirmed defendant went by the nickname Ariel. She

also provided defendant's telephone number, which was the same telephone

number the victim gave to the police.

      A few days later, the police showed defendant's photograph to the victim.

The victim identified defendant as the shooter.          Based on the victim's

identification, the police obtained a warrant for defendant's arrest.

      Around 6:00 a.m. on June 28, 2012, five police officers from the Newark

Police Department knocked on the door of defendant's apartment to execute the

arrest warrant. Defendant's wife opened the door, allowed the officers to enter,

and said defendant was in the living room. The officers found defendant there,

lying on a sofa bed. One officer stayed with defendant's wife while Detective

William Maldonado and the others went into the living room and arrested

defendant.




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                                        3
       Defendant claimed the officers told him that his children would be placed

in the custody of the Division of Youth and Family Services (DYFS)1 and his

wife would be criminally charged if defendant did not reveal the location of

contraband in the apartment. Defendant responded the officers would find

something under the couch. The police found a black pouch containing a

handgun, eighty-two oxycodone pills, fifty decks of heroin, bath salts, and $171.

Defendant admitted to the police that the pouch belonged to him; however, he

was not given Miranda2 warnings prior to making this statement.

       The police took defendant to the station after his arrest. Approximately

six hours after his arrest, a different police officer, Detective Lydell James,

advised defendant of his Miranda rights. Defendant waived his rights by signing

the written waiver form and gave a digitally recorded statement. Defendant

admitted he and two other individuals were owed money by the victim and the

trio sought to collect their money. Defendant stated one of the individuals did

not get the money he was owed, and that person shot the victim. Defendant also

admitted the gun and drugs in the black pouch belonged to him.



1
  DYFS was renamed the Division of Child Protection and Permanency in June
2012. L. 2012, c. 16, effective June 29, 2012.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).
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                                       4
      Defendant was charged and subsequently indicted with second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); second-

degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39 -4(a)

(count two); fourth-degree aggravated assault by recklessly causing bodily

injury to the victim with a deadly weapon, N.J.S.A. 2C:12-1(b)(3) (count three);

second-degree possession of a firearm while committing a narcotics offense,

N.J.S.A. 2C:39-4.1(a) (count four); fourth-degree unlawful possession of a

firearm without a permit, N.J.S.A. 2C:39-10(a) (count five); three counts of

third-degree possession of controlled dangerous substances, N.J.S.A. 2C:35-

10(a) (counts six, nine, and twelve); three counts of third-degree possession of

controlled dangerous substances with intent to distribute, N.J.S.A. 2C:35 -

5(a)(1) (counts seven, ten, and thirteen); and three counts of third-degree

possession of controlled dangerous substances with intent to distribute within

1000 feet of a school, N.J.S.A. 2C:35-7 (counts eight, eleven, and fourteen).

      Prior to trial, defendant moved to suppress his statements to the police at

his apartment and at the police station. At the suppression hearing, the judge

heard the testimony of Detectives Maldonado and James, defendant's wife, and

defendant's oldest son.




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                                       5
      Detective Maldonado was one of the arresting officers. According to

Detective Maldonado, prior to his arrest, defendant was sleeping on a sofa bed

in the living room and there was a black pouch on the sofa.            Detective

Maldonado saw narcotics protruding from the pouch, looked inside the pouch,

and found a small weapon.3 Detective Maldonado denied the officers conducted

a search of the apartment other than to look for other occupants. Detective

Maldonado testified defendant "was shaking" once the pouch was discovered

and said the pouch belonged to him.

      Defendant's wife testified she stood in the kitchen and saw the officers

arrest defendant. She also heard an officer tell defendant that if he did not

disclose the contraband in the apartment, the officers "were going to call [DYFS]

and take my children, and also, they were going to get me involved in this case."

As the officers looked for contraband, defendant's wife heard defendant say

there was something behind the couch. 4 According to defendant's wife, the

officers moved the couch and found a "black purse."



3
  The State's ballistics expert confirmed the bullet fragment found in the street
near the victim's apartment came from the gun found in defendant's apartment.
4
   According to Detective Maldonado, the black pouch was found on the sofa
bed. According to defendant's wife and son, the pouch was discovered under a
different couch.
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                                       6
      The judge also heard testimony from defendant's oldest son, who was

fourteen or fifteen years old at the time of defendant's arrest. According to the

son, he heard noise from the officers in the apartment and went into the living

room to investigate. The son testified the officers looked "everywhere" in the

apartment and found a bag under the couch. According to the son, the officers

threatened that if defendant and his wife did not admit to ownership of the bag,

DYFS would take the children.

      Detective James was the officer who took defendant's digitally recorded

statement at the police station after defendant's arrest. Detective James testified

he did not speak with the arresting officers prior to speaking with defendant, did

not make any promises to defendant prior to the recorded statement, and never

threatened defendant or used any force or coercion in return for defendant giving

the statement. Detective James further explained defendant never declined to

give a statement, never refused to answer any questions, and never said he

wanted to speak with an attorney. The detective affirmed that defendant did not

appear to be under the influence of any substances. The detective explained he

provided both verbal and written Miranda warnings to defendant in English




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                                        7
rather than Spanish.5    According to Detective James, defendant signed the

Miranda waiver form at 11:50 a.m., approximately six hours after his arrest.

      After hearing the testimony and reviewing the evidence, including the

digital recording of defendant's statement to Detective James, the judge held that

defendant's second warned statement at the police station was admissible

because it was not the product of his earlier unwarned admission in the

apartment. The judge found the detectives' testimony more credible than the

testimony offered by defendant's wife and son. She determined the testimony

proffered by defendant's wife was "partially credible" and the testimony of his

son was "mostly incredible."       She found their testimony "lack[ed] . . .

corroborating evidence" and presented "contradictory evidence" to each other as

to significant details, such as who was in the apartment when defendant was

arrested and where the pouch was found.

      The judge found Detective James credibly testified he was not involved

in the shooting investigation or defendant's arrest. She accepted Detective

James's testimony that "he did not make any promises or threats" to defendant




5
  Defendant spoke Spanish, although he understood English according to his
family.
                                                                          A-1226-17T1
                                        8
or "exercise any force or coercion in connection with [defendant's] statement"

and was unaware of any other officers doing so.

      Based on the testimony of Detective James and the digital recording, the

judge found defendant never declined to speak with the police, asked the police

to stop questioning him, or requested to speak with an attorney. As part of the

recorded interview, the judge heard Detective James explain the Miranda

warnings to defendant and provide the written version of the warning s to

defendant for his review. She found defendant did not indicate any difficulty

understanding the verbal or written warnings nor did he demonstrate "any signs

of impairment or intoxication."

      The judge concluded defendant was in custody at the time of his arrest in

the apartment but was not given any Miranda warnings prior to the police

interrogating him. Giving defendant's wife and son "the benefit of the doubt,"

the judge found at least one officer made an inquiry regarding contraband in the

apartment and told defendant his children would be taken by DYFS and his wife

would be criminally charged if defendant did not disclose the location of the

contraband. Based on her findings, the judge suppressed defendant's unwarned

statements to the police while in the apartment.




                                                                        A-1226-17T1
                                       9
      However, the judge reached a different conclusion as to the digitally

recorded statement given by defendant to Detective James six hours later. She

determined defendant "received proper administration of Miranda rights" from

Detective James.

      The judge explained "[b]oth the CD and the transcript show that

[defendant] was advised of his Miranda rights and that . . . is also corroborated

by Detective James's testimony." In her review of the digital recorded statement,

the judge determined defendant knowingly and intelligently waived his

constitutional rights.    She also found defendant's English "clear and

comprehensive" and that defendant could be heard on the digital recording

"speaking clearly and calmly." In the recording, defendant told Detective James

that he understood the written waiver form after reading the document.

      The judge also considered defendant's age, thirty-six years old at the time

of his arrest, his two years of a college education, as well as his statements

regarding the ability to read and understand English. Further, the judge held

defendant's "previous encounters with law enforcement" supported the

"voluntariness of the defendant's waiving the Miranda." The judge did not find

defendant was threatened, coerced, or pressured into giving the statement to

Detective James. She also concluded defendant "[did] not exhibit any form of


                                                                         A-1226-17T1
                                      10
distress in the audio recording. His voice is calm. He is clear, articulate. He

sounds like he is alert.     He, frankly, sounds like he is very comfortable

throughout the statement."

      Because the second Mirandized statement by defendant was six hours after

his earlier unwarned statement, the judge found "the second statement was a

separate event from the statement allegedly made by [defendant]" in the

apartment. Based on the testimony and evidence, the judge determined "the

second statement . . . was given after [defendant] knowingly, voluntarily, and

intelligently waived his Miranda rights." The judge concluded "defendant's

Miranda waiver . . . was knowing . . . that his confession was voluntary and not

the product of coercion in light of the totality of the circumstances" and therefore

denied defendant's motion to suppress his second statement.

      The case was tried before a jury over five days. During the trial, defense

counsel objected to the State's submission of an affidavit from an individual

employed by the Firearms Investigation Unit of the Department of Law and

Public Safety. According to that affidavit, the employee searched the relevant

records and found no record of defendant applying for, or having been issued, a

permit to purchase or carry a firearm.        Defense counsel also objected to




                                                                            A-1226-17T1
                                        11
testimony from the surveyor for the City of Newark, confirming the location of

defendant's apartment within 1000 feet of a school.

      At the conclusion of the evidence, the jury found defendant guilty on all

counts except for counts thirteen and fourteen related to the possession of bath

salts. Defendant was sentenced to an aggregate term of eighteen years in prison

with a ten-year period of parole ineligibility.

      On appeal, defendant raises the following arguments:

      POINT I

            THE FAILURE OF THE POLICE TO ADMINISTER
            MIRANDA WARNINGS TO DEFENDANT UPON
            HIS ARREST AT HIS RESIDENCE BEFORE
            ENGAGING IN COERCIVE INTERROGATION
            WHICH       ELICITED      INCRIMINATING
            ADMISSIONS,    WHICH    REQUIRED    THE
            SUPPRESSION    OF   THOSE    ADMISSIONS,
            PRECLUDED     THE    EFFECTIVENESS   OF
            MIRANDA WARNINGS PRECEDING A SECOND
            STAGE OF INTERROGATION AT THE POLICE
            STATION AND REQUIRED THE EXCLUSION OF
            DEFENDANT'S RESPONSES AT THE STATION
            UNDER THE FIFTH AMENDMENT AND HIS
            STATE LAW PRIVILEGE AGAINST SELF-
            INCRIMINATION.

      POINT II

            THE STATE'S PROOFS ON COUNTS ONE AND
            FIVE THAT DEFENDANT DID NOT HAVE A
            PERMIT TO POSSESS THE HANDGUN AT ISSUE
            IN THIS CASE VIOLATED THE SIXTH

                                                                        A-1226-17T1
                                       12
            AMENDMENT'S    PROSCRIPTION   AGAINST
            TESTIMONIAL HEARSAY AND THE STATE
            EVIDENCE RULE REQUIRING THAT NON-
            STIPULATED EVIDENCE BE PRESENTED AT
            TRIAL THROUGH WITNESSES UNDER OATH.

      POINT III

            THE STATE'S EVIDENCE ON THE SCHOOL ZONE
            CONVICTIONS IN COUNTS EIGHT AND ELEVEN
            WAS INADMISSIBLE HEARSAY, AND ITS
            RELIABILITY          WAS  NOT SUFFICIENTLY
            ESTABLISHED TO SUPPORT ITS ADMISSION.
            (Partially raised below.)

      POINT IV

            THE COURT SHOULD HAVE GRANTED
            DEFENDANT'S APPLICATION FOR A JUDGMENT
            OF ACQUITTAL ON COUNTS ONE, FIVE, EIGHT
            AND ELEVEN OF THE INDICTMENT.

      We apply a highly deferential standard of review to a trial judge's

determination on a motion to suppress. State v. Gonzales, 227 N.J. 77, 101

(2016). We will uphold a "judge's factual findings so long as sufficient credible

evidence in the record supports those findings[.] Those factual findings are

entitled to deference because the motion judge . . . has the 'opportunity to hear

and see the witnesses and to have the "feel" of the case, which a reviewing court

cannot enjoy.'" Ibid. (citations omitted) (quoting State v. Johnson, 42 N.J. 146,

161 (1964)).


                                                                         A-1226-17T1
                                      13
      Defendant contends the failure of the arresting officers to apprise him of

his Miranda rights prior to his initial statements in the apartment precluded the

admission of his subsequent warned statements at the police station. Defendant

further argues that Detective James was required to advise him at the time of

the digitally recorded statement that defendant's prior statements in the

apartment could not be used against him.           According to defendant, his

subsequent statement regarding ownership of the gun and drugs should have

been suppressed under the "cat-out-of-the-bag" doctrine. See United States v.

Bayer, 331 U.S. 532, 540 (1947) (holding "after an accused has once let the cat

out of the bag by confessing, no matter what the inducement, he is never

thereafter free of the psychological and practical disadvantages of having

confessed. He can never get the cat back in the bag."). We disagree.

      In State v. O'Neill, 193 N.J.148 (2007), our Supreme Court addressed an

interrogation involving an initial unwarned confession and a later warned

confession. The Court held "the admissibility of post-warning statements will

turn on whether the warnings functioned effectively in providing the defendant

the ability to exercise his state law privilege against self-incrimination." Id. at

180-81.




                                                                            A-1226-17T1
                                        14
      Thus, when determining whether to admit post-Miranda warning

statements, courts should consider:

            (1) the extent of questioning and the nature of any
            admissions made by defendant before being informed
            of his Miranda rights;

            (2) the proximity in time and place between the pre- and
            post-warning questioning;

            (3) whether the same law enforcement officers
            conducted both the unwarned and warned
            interrogations;

            (4) whether the officers informed defendant that his
            pre-warning statements could not be used against him;
            and

            (5) the degree to which the post-warning questioning is
            a continuation of the pre-warning questioning.

            [Id. at 181.]

"In a two-step interrogation case, courts must view the totality of the

circumstances in light of the relevant factors and then determine whether the

unwarned questioning and admissions rendered the Miranda warnings

ineffective in providing a defendant the opportunity to exercise the privile ge."

Id. at 181-82.

      Several of the O'Neill factors weighed in favor of admitting defendant's

digitally recorded statement to Detective James. The post-warning questioning


                                                                         A-1226-17T1
                                      15
of defendant occurred six hours after the pre-warning questioning. Different

law enforcement officers conducted the unwarned and warned interrogation of

defendant. Because Detective James had no contact with the arresting officers

prior to questioning defendant at the police station, the post-warning questioning

was not a continuation of the pre-warning questioning.

      The only missing factor was informing defendant that his pre-warning

statement could not be used against him. However, the failure to give that

instruction did not render defendant's post-Miranda statement inadmissible. The

O'Neill factors are not applied formulaically as the Court expressly declined to

create a "bright-line rule" for determining whether unwarned statements

rendered subsequent Miranda warned statements "ineffective in providing a

defendant the opportunity to exercise the privilege." O'Neill, 193 N.J. at 181-

82. Here, given the totality of the circumstances and applying the O'Neill

factors, the facts tip in favor of admitting defendant's subsequent statement.

      Based on our review of the record, defendant understood his rights and

voluntarily waived those rights prior to giving his statement to Detective James.

Thus, we affirm the denial of defendant's motion to suppress his post-Miranda

warned statement admitting ownership of the gun and drugs.




                                                                          A-1226-17T1
                                       16
      We next consider defendant's challenge to two evidentiary rulings the

judge made during the trial. We review evidentiary rulings by a trial judge under

an abuse of discretion standard. State v. Gorthy, 226 N.J. 516, 539 (2016).

      We discern no legal basis to disturb the judge's evidentiary ruling

regarding the State's proffer of a no permit affidavit. The affidavit was properly

admitted under the absence of a public record exception to the hearsay rule.

N.J.R.E. 803(c)(10); see also State v. Rogers, 177 N.J. Super. 365, 375 (App.

Div. 1981) (allowing an affidavit by an officer of the State Police Firearms

Identification Unit indicating that there was no record of issuance of, or

application for, a permit by defendant to "negate the existence of a permit." ).

The affidavit was a valid self-authenticating document under N.J.R.E. 902(k).

It bore the raised seal of a governmental agency and was signed by an employee

acting in his official capacity. Even if the affidavit was admitted in error, such

an error was harmless as defendant admitted he received the gun from a friend

and never registered the weapon.

      Nor did the judge err in admitting the testimony of the City's surveyor,

locating defendant's apartment within 1000 feet of a school. While the surveyor

did not create the maps, his testimony was based on his extensive experience

reviewing the City's maps. He testified the City's maps were accurate and


                                                                          A-1226-17T1
                                       17
reliable within a few feet plus or minus. See N.J.S.A. 2C:35-7(f) (allowing the

State to introduce other testimony to establish distance); see also State v.

Thomas, 132 N.J. 247, 256 (1993) (allowing an experienced police officer to

testify that the defendant possessed drugs within 1000 feet of a school without

an authenticating ordinance or resolution in support of the map upon which the

officer relied).   Nor did defendant present evidence that contradicted the

surveyor's 1000-foot calculation.

      Because we discern no abuse of discretion regarding the judge's

evidentiary rulings on these matters, we need not address defendant's argument

that the judge erred in denying his application for a judgment of acquittal on

counts one and five (unlawful possession of a gun) and counts eight and eleven

(possession of drugs within 1000 feet of a school).

      Affirmed.




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                                      18
