                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0205-17T3

STATE OF NEW JERSEY,

                    Plaintiff-Respondent,

v.

TIMOTHY E. RAYFORD, a/k/a
TIMOTHY E. RAYFORD, SR.,
TIMOTHY RAYFORD,
TIMOTHY RAYFORD, SR.,
and TIMITHY RAYFORD,

          Defendant-Appellant.
______________________________

                    Submitted December 17, 2018 – Decided December 26, 2018

                    Before Judges Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 14-12-1076.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Molly O'Donnell Meng, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (James C. Brady,
            Special Deputy Attorney General/Acting Assistant
            Prosecutor, of counsel and on the brief).

PER CURIAM

      On December 19, 2014, a Union County grand jury returned a ten-count

indictment charging defendant with first-degree aggravated sexual assault of a

minor, N.J.S.A. 2C:14-2(a)(1) (count one); two counts of second-degree sexual

assault of a minor, N.J.S.A. 2C:14-2(b) (counts two and eight); first-degree

aggravated sexual assault of a minor, N.J.S.A. 2C:14-2(a)(2)(a) (count three);

second-degree sexual assault of a minor, N.J.S.A. 2C:14-2(c)(4) (count four);

third-degree aggravated criminal sexual contact upon a minor, N.J.S.A. 2C:14-

3(a) (count five); fourth-degree criminal sexual contact upon a minor, N.J.S.A.

2C:14-3(b) (count six); two counts of second-degree engaging in sexual conduct

with a minor which would impair or debauch the morals of the child, N.J.S.A.

2C:24-4(a) (counts seven and nine); and fourth-degree child cruelty, N.J.S.A.

9:6-1 and N.J.S.A. 9:6-3 (count ten).

      After Judge Regina Caulfield denied defendant's motion to suppress a

recorded statement he gave to the police, defendant pled guilty to counts two

and eight of the indictment. In accordance with the negotiated plea, Judge

Caulfield sentenced defendant to a thirteen-year term on count two, subject to

the 85% parole ineligibility provisions of the No Early Release Act (NERA),

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                                        2
N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision upon release;

and to a concurrent five-year term on count eight, subject to NERA, and with

five years of parole supervision upon release. The judge also placed defendant

on Parole Supervision for Life pursuant to N.J.S.A. 2C:43-6.4, and required him

to comply with all Megan's Law registration and reporting conditions.

       On appeal, defendant raises the following contentions:

             POINT I

             DEFENDANT'S   STATEMENT     MUST   BE
             SUPPRESSED BECAUSE HE WAS INTOXICATED
             AND DID NOT UNDERSTAND THE MIRANDA[1]
             WARNINGS AT THE TIME HE GAVE HIS
             STATEMENT.

             A.    Introduction.

             B.    The Trial Court's Credibility Findings Were
                   Based On Improper Factors.

             C.    Based On A Proper Assessment Of Defendant's
                   Credibility, His Statement Was Not Freely And
                   Voluntarily Given.

After reviewing the record in light of these contentions, we affirm.

       At the two-day suppression hearing, Sergeant Patricia Gusmano testified

that during the evening of July 30, 2014, she took a statement from the victim



1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                        A-0205-17T3
                                       3
and the victim's sister at the Union County Prosecutor's Office.           While

conducting the interviews, Sergeant Gusmano learned that defendant and his

brother had appeared at the Linden police station, but then left to go to a coffee

shop. Armed with the information obtained from the victim and her sibling,

Sergeant Gusmano obtained approval to charge defendant with first-degree

aggravated sexual assault and fourth-degree endangering the welfare of a child.

      By that time, defendant had returned to the Linden police station, and

Sergeant Gusmano asked the officers to take him into custody.           Sergeant

Gusmano, accompanied by Detective Vito Colacitti, arrived at the station at

approximately 2:45 a.m. The sergeant spoke to defendant, who was sitting in a

holding cell, and advised him of the charges. She then accompanied defendant

to an interview room, gave him a Miranda form, and asked defendant to read his

rights aloud and sign the form. After completing the form, defendant waived

his right to an attorney and, over the course of the ninety-minute interview that

followed, gave a detailed statement to Sergeant Gusmano during which he

"admitted to some inappropriate sexual conduct with" the victim.

      Sergeant Gusmano testified that defendant was "engaged," "cooperative,"

"clear-eyed," "capable," "competent," and "articulate" during the interview.

Defendant did not claim he was intoxicated or tired, and the sergeant did not


                                                                          A-0205-17T3
                                        4
detect the smell of alcohol during the interview. Defendant also did not tell the

sergeant that he had any type of disability that prevented him from

understanding her questions.

      At the hearing, defendant testified that he had been drinking alcohol while

he was at work on July 30, and then stopped at a friend's house to drink before

he went home around 9:30 p.m. After being confronted by his wife and brother-

in-law, defendant went to his brother's house. While there, defendant claimed

he drank "three gulps" of vodka. He then went to his other brother's house,

where he drank a twenty-four ounce can of beer, and got a "contact high" from

being in the same room where other individuals "were smoking weed." Around

midnight, defendant and his brother drove to the police station because t hey

believed defendant was "want[ed] . . . for questioning."

      Defendant testified that the police let him leave the station to get a cup of

coffee. About forty-five minutes later, he and his brother returned with his

coffee, but the police only allowed him to drink "three gulps of it" before they

arrested him. Defendant alleged that Sergeant Gusmano told him that "he better

admit to something or he will never see his kids again."

      Defendant testified that he did not understand the Miranda form or the

sergeant's explanation of his rights because he was intoxicated. Defendant also


                                                                           A-0205-17T3
                                        5
claimed he had "a hard time understanding words or reading" because he

suffered from a disability that made him hear things "backwards and/or fast[.]"

Defendant admitted that he had never been formally diagnosed with this

disability, was not under a doctor's care, and did not take any medication to treat

his alleged condition.

      After reviewing the taped interview, Judge Caulfield rendered a thorough

oral decision, denying defendant's motion to suppress his recorded statement.

The judge found that Sergeant Gusmano fully informed defendant of his

Miranda rights and he knowingly, voluntarily, and intelligently waived those

rights. In rejecting defendant's claim that he was intoxicated when he spoke to

the sergeant or unable to understand her because of his alleged disability, the

judge stated:

            [T]he [c]ourt finds that during the statement, and
            although it was given for about one-and-one-half hours,
            from approximately 3 a.m. to 4:30 a.m. on July 31,
            2014, the defendant appeared awake and alert,
            intelligent, articulate and responsive to all questions
            asked of him. His answers were appropriate to the
            questions, meaning they were in context and made
            sense. The defendant was engaged, when I mean
            engaged, was participating, lively at times, in the
            conversation and at times adding or changing answers
            he had previously given when pressed by the sergeant.
            At no time, to this [c]ourt, did the defendant appear
            sleepy or confused or under the influence of any


                                                                           A-0205-17T3
                                        6
            substance. He did not seem drowsy, but seemed wide
            awake and attentive.

Thus, Judge Caulfield concluded that defendant's testimony that he was

intoxicated or suffered from an undiagnosed disability was not credible and,

instead, "was nonsensical and unbelievable." Therefore, she denied defendant's

motion to suppress his recorded statement. This appeal followed.

      On appeal, defendant again asserts he was too intoxicated and impacted

by his alleged disability to voluntarily waive his Miranda rights, and that the

judge erred by finding that his claims were not credible. We disagree.

      The State bears the burden of establishing beyond a reasonable doubt that

a confession is knowing and voluntary. State v. Nyhammer, 197 N.J. 383, 401

n.9 (2009). The State similarly bears the burden of proving beyond a reasonable

doubt that a defendant waived his rights before making such a statement. State

v. Carpenter, 268 N.J. Super. 378, 383-84 (App. Div. 1993).

      "A suspect's waiver of his [or her] Fifth Amendment right to silence is

valid only if made 'voluntarily, knowingly[,] and intelligently.'" State v. Adams,

127 N.J. 438, 447 (1992) (quoting Miranda, 384 U.S. at 444). The determination

of the voluntariness of a custodial statement requires an assessment of the

totality of the circumstances surrounding the giving of the statement. State v.

Roach, 146 N.J. 208, 227 (1996). A court must look at the characteristics of the

                                                                          A-0205-17T3
                                        7
suspect, such as his or her age, education, intelligence, and prior encounters with

the law.   State v. Galloway, 133 N.J. 631, 654-55 (1993). It must also consider

the nature of the interrogation, such as whether it was prolonged and resulted in

the suspect's mental exhaustion and also, whether the suspect was subjected to

physical or psychological coercion. State v. Miller, 76 N.J. 392, 402 (1978).

      The intoxication of a defendant does not automatically mean that he or

she cannot knowingly and intelligently waive his or her Miranda rights. State

v. Warmbrun, 277 N.J. Super. 51, 61-62 (App. Div. 1994). Rather, in applying

the totality of the circumstances test, the court must consider whether the

defendant spoke freely and with understanding, was able to correctly provide

pedigree information, and was capable of narrating the past events and his or

her participation in them. Id. at 62, 64. Once a statement is deemed admissible,

the fact that a defendant was intoxicated affects only the weight of the

confession. State v. Bindhammer, 44 N.J. 372, 383-84 (1965).

      We engage in a "'searching and critical' review of the record to ensure

protection of a defendant's constitutional rights" when assessing the propriety

of a trial court's decision to admit a police-obtained statement. State v. Hreha,

217 N.J. 368, 381-82 (2014) (quoting State v. Pickles, 46 N.J. 542, 577 (1966)).

Nonetheless, we defer to the trial court's credibility and factual findings because


                                                                           A-0205-17T3
                                        8
of the trial court's ability to see and hear the witnesses, and thereby obtain the

intangible, but crucial, feel of the case. State v. Maltese, 222 N.J. 525, 543

(2015).

      Applying these principles, we discern no basis for disturbing Judge

Caulfield's well-reasoned determination that defendant voluntarily, knowingly,

and intelligently waived his Miranda rights. After hearing and observing the

witnesses as they testified, Judge Caulfield found that Sergeant Gusmano's

testimony was credible, while defendant's was not. We defer to that credibility

finding, which the judge fully explained in her written decision.

      The judge's factual findings that defendant was neither intoxicated nor

suffering from a disability that prevented him from understanding his rights are

fully supported by the record and, in light of those facts, her legal conclusions

are unassailable. We therefore affirm substantially for the reasons that Judge Caulfield

expressed in her well-reasoned opinion.

      Affirmed.




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