                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1591-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

P.J.M.,

     Defendant-Appellant.
__________________________

                    Argued March 20, 2019 – Decided January 22, 2020

                    Before Judges Fuentes, Accurso and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cumberland County, Indictment No. 16-01-
                    0064.

                    Joseph J. Russo, Deputy Public Defender, argued the
                    cause for appellant (Joseph E. Krakora, Public
                    Defender, attorney; Stephen W. Kirsch, Assistant
                    Deputy Public Defender, of counsel and on the brief).

                    Evgeniya Sitnikova, Deputy Attorney General, argued
                    the cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Evgeniya Sitnikova, of counsel and
                    on the brief).
      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      A Cumberland County grand jury returned an indictment against

defendant P.J.M. charging him with first degree aggravated sexual assault,

N.J.S.A. 2C:14-2a(1), and second degree endangering the welfare of a child,

N.J.S.A. 2C:24-4a(1). Defendant is the paternal uncle of A.J.C. (Amelia)1, the

victim of these crimes. According to Amelia, defendant sexually assaulted her

between November 6, 2006 and November 5, 2009, when she was between six

and eight years old.

      The indictment also contained three additional counts charging defendant

with second degree sexual assault, N.J.S.A. 2C:14-2b; first degree aggravated

sexual assault N.J.S.A. 2C:14-2a(1); and second degree endangering the welfare

of a child, 2C:24-4a(1). The victim of these crimes, J.C., claimed defendant

sexually assaulted her in the City of Bridgeton between June 17, 2007 and June

16, 2008 when she was between eight and nine years old.

      The allegations made by these two children were considered two separate

incidents. The State decided to try the charges involving Amelia's allegations


1
   Pursuant to Rule 1:38-3(c)(9), we use pseudonyms or initials to protect the
privacy of the children and members of their family who have the same last
name.
                                                                       A-1591-17T1
                                      2
first. A petit jury convicted defendant of first degree aggravated sexual assault

and third degree endangering the welfare of a child, as a lesser included offense

of second degree endangering the welfare of a child. 2 The trial court thereafter

granted the State's motion to dismiss the three charges involving J.C., which

were reflected in counts three, four, and five of the indictment.

       At the sentencing hearing, the trial court merged the third degree

endangering the welfare of a child conviction with the first degree aggravated

sexual assault and sentenced defendant to a term of sixteen years, with an eighty-

five percent period of parole ineligibility and five years of parole supervision as

required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.1.



2
    N.J.S.A. 2C:24-4(a)(1) provides:

             Any person having a legal duty for the care of a child
             or who has assumed responsibility for the care of a
             child who engages in sexual conduct which would
             impair or debauch the morals of the child is guilty of a
             crime of the second degree. Any other person who
             engages in conduct or who causes harm as described in
             this paragraph to a child is guilty of a crime of the third
             degree.

             [(Emphasis added).]

Because defendant was convicted of third degree endangering the welfare of a
child, we infer the jury found the State did not prove, beyond a reasonable doubt,
he had "a legal duty" or had "assumed responsibility for the care of" Amelia at
the time he sexually assaulted her.
                                                                           A-1591-17T1
                                          3
      In this appeal, defendant alleges that while he was detained in the County

Jail in connection with these charges, a representative of the Division of Child

Protection and Permanency (Division) "interrogated" him concerning the

allegations made by his niece without first informing his attorney and without

advising him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

Defendant also argues that the trial judge erred in denying his motion to suppress

an incriminating statement he made to the Division caseworker.

      The judge found the Division caseworker was acting on behalf of the State

but was not conducting a criminal investigation at the time she interviewed

defendant.   The judge also found that the law enforcement agents who

interrogated defendant apprised him of his rights under Miranda at the time he

was arrested, six weeks before his interactions with the Division caseworker.

The motion judge held this waiver remained in full force and effect at the time

defendant was interviewed by the Division caseworker.

      The State argues we should uphold the judge's findings because they were

based on his assessment of defendant's understanding under the totality of the

circumstances and there is "no bright-line rule" that establishes when the State

is required to re-administer Miranda warnings. According to the State, the judge

properly found that additional warnings were not warranted "because the time


                                                                          A-1591-17T1
                                        4
interval between the interviews on its own did not vitiate the existing warning. "

After reviewing the record developed before the motion judge, we reverse.

                                        I

                               The Investigation

      On April 7, 2014, Amelia's younger sister A.C. (Anita) attended a child

abuse prevention program held at her elementary school. At the conclusion of

the program, Anita approached the school's counselor, Maria Lopez, and told

her she overheard a conversation her older sister Amelia had with their mother

about sexual abuse.     Counselor Lopez reported Anita's allegations to the

Bridgeton Police Department.

      Bridgeton Detectives Kenneth Leyman and Miguel Martinez were

dispatched to the school that same day to investigate.        After speaking to

Counselor Lopez, the detectives drove to Amelia's residence. After briefly

discussing the allegations with Amelia and her mother, the detectives decided

to take them to the Bridgeton police station to interview them formally. Amelia

was thirteen years old at the time. Detective Leyman testified that Counselor

Lopez told him the family was a "Spanish speaking . . . household[.]" Detective

Martinez spoke Spanish and was prepared to interpret in the event Amelia or her

mother had any difficulty understanding English or expressing themselv es in


                                                                          A-1591-17T1
                                        5
English. However, Detective Leyman testified that Amelia was "very fluent" in

English.

      According to Detective Leyman, Amelia was very upset and "basically

started to cry" when he asked her if she knew why she was there. He described

her demeanor throughout the interview as "[v]ery solemn." She "sobbed a lot[,]

. . . [w]as unable to keep her eyes up[,] . . . [and] [was] just very, very distraught."

Notwithstanding her distressed emotional state, Detective Leyman testified that

Amelia was eventually able to describe what occurred. She told Detective

Leyman that defendant began to sexually molest her when she was

approximately six years old and continued until she was eight.

      Because Amelia "was unable to verbalize some of the information, due to

the fact that she was crying[,]" Detective Leyman "offered her a pen and a pad

of paper[.]" As part of his direct examination, the prosecutor did not ask

Detective Leyman to produce the paper or disclose what Amelia wrote. In

response to defense counsel's cross-examination, Detective Leyman testified

that Amelia only wrote "sexual intercourse" on the piece of paper. Defense

counsel pursued this line of questioning with Detective Leyman:

             Q. Okay. So she never actually said he touched me, he
             did this to me, he put his penis inside of me. She never
             actually said those words to you; correct?


                                                                               A-1591-17T1
                                           6
A. During the interview she described the scenario little
by little. I mean, there were words exchanged. As time
went on, she was able to answer questions. She just
wasn’t able to give elaborate answers on those
questions verbally.

Q. Okay. So you didn’t actually get a lot of detail from
her. Is that correct?

A. Not at that time, no.

Q. Was there ever a point in time where you
interviewed her again and got more detail?

A. Well, the -- as to location, things of that nature, but
during the --

Q. But you never actually got more detail as to what
actually happened to her; correct?

A. I was able to get the abuse scenario; the position,
where it happened, as far as not location geographically
but the area that -- or what they were in at the time of
the assaults. I was able to get the positions of the sexual
encounters, as far as their positioning to one another
being missionary. I was able to determine how their
clothing was positioned during that time.

Q. Okay. Let’s talk about that. In regards [sic] to her
clothing, it’s fair to say that she told you that they were
both undressed from the waist down. Is that correct?

A. Yes, ma’am.

Q. She said that neither of them had any pants on?

A. Yes.


                                                              A-1591-17T1
                            7
      Detective    Leyman      characterized   Amelia's   mother's   attitude    as

"supportive."     Conversely, he described Amelia's father's demeanor as

"indifferent" and defensive of his brother. According to Detective Leyman,

Amelia's father did not believe his daughter's allegations against defendant.

                                        II

                          Complaining Witness' Testimony

      Amelia was sixteen years old at the time she testified at defendant's trial.

It is undisputed that defendant resided with Amelia and her family at the time

she claimed he sexually assaulted her. Amelia testified she was six years old

when she accompanied defendant to the laundromat on a regular basis to wash

the family's clothes. The prosecutor asked Amelia to describe what occurred on

these trips to the laundromat:

            Q. Okay. [Amelia], was there a time when . . . your
            uncle did something to you when you were on one of
            those errands?

            A. Yes.

                   ....

            Q. Did he do something to you?

            A. Yes.

            Q. Was this something that made you feel bad?

            A. (No audible response)
                                                                          A-1591-17T1
                                        8
            Q. You’re nodding your head. You’ve got to give
            an answer.

            A. Yes. Yes.

                  ....

            Q. Okay. Can we start with maybe where it might have
            happened? Where would it happen?

             A. It was like, okay, there was one time at the
            laundromat and the other times would be at, like, a
            deserted area or near like an ocean or like a sea.

            Q. Okay. Okay. Now, you’re talking about a couple of
            times. How many times . . . did your uncle do
            something to you?

            A. I can’t count how many times but it was many times.

      When the prosecutor asked her to "roughly" recall how many times,

Amelia responded: "[s]ix . . . maybe around eight" times over approximately

two years. Amelia also testified that these encounters occurred in Greenwich

Township. Amelia testified that she took Detective Leyman to the places where

defendant sexually assaulted her. When asked how she was able to remember,

Amelia explained: "Because we went by car and there [were] windows around

and I could see like around, and also there were some places that were where me

and my dad go fishing." She also said defendant took her to these places when

they were the only two people in the minivan.

                                                                       A-1591-17T1
                                      9
      The prosecutor provided Amelia with a copy of the transcript of her

interview by Detective Leyman to refresh her recollection.        After Amelia

reviewed the statements she made at that time, the prosecutor asked her to

describe what occurred. Amelia testified that defendant would first park the

minivan and exit the vehicle from the driver-side door. She described how the

sexual assaults occurred in response to the prosecutor's questions:

            Q. Okay. And then where would he go?

            A. He would shut the door and then he would go around
            to the -- there was a slide door. Then he would open the
            door.

            Q. Okay. And where were you at that point?

            A. Well, it was a slide door and then I would be seated
            on the back seat.

            Q. Would he ever -- well, talking about this in -- first
            incident, if you can remember. You’re on the seat. Does
            he position you in a certain way?

            A. Yes.

            Q. And how was that?

            A. My back would always be on the seat.

            Q. So would he lay you down on your back –

            A. Yes.

            Q. -- on the seat?

                                                                       A-1591-17T1
                                      10
            A. Yes.

      At this point, defense counsel requested a sidebar conference. Although

this part of the transcript contains a number of "inaudible" references in lieu of

actual words, it appears defense counsel objected and argued the prosecutor was

improperly asking leading questions. The trial judge overruled the objection

and the prosecutor resumed her direct examination of the witness. Amelia

described how defendant would lay her down on her back and take down her

"undergarment." Because this "was like a regular-type thing," Amelia testified

that sometimes she "would just take them off." When asked to clarify, Amelia

stated that her underwear "would be below my ankles. Since I’m laying down,

my ankles would touch the floor."

      The prosecutor asked Amelia to describe what happened next:

            A. I would hear his zipper go down and he would take
            down his pants.

            Q. And then what would happen?

            A. And then he would take out his –

            Q. He would take -- you have to say the word? He
            would take out his what?

            A. God. He would take out his --

            Q. Do you know what word you want to use?

            A. Yes.
                                                                          A-1591-17T1
                                       11
            Q. Do you have an answer?

            A. Yes. His penis.

            Q. And after he would remove his penis, what would he
            do? Remove his penis from his pants, I should say.

            A. He would put it inside my vagina.

             Q. Would he say anything to you while he did this to
            you?

            A. No.

            Q. And this was what you can remember being the first
            time the [d]efendant did this to you?

            A. Yes.

            Q. Now, you said that . . . it happen[ed] a number of
            times over two years. Was this how it always
            happened?

            A. Yes.

                                      III

                  Complaining Witness's Father's Testimony

      Amelia's father D.J.A. (Diego), who is also defendant's brother, testified

as a witness for the State. He testified that starting in either 2003 or 2005,

defendant lived with him, his wife, and his two daughters, Amelia and Anita,

for a period of seven years. He also confirmed that defendant owned a minivan

and would take Amelia with him to the laundromat. When the prosecutor asked
                                                                        A-1591-17T1
                                      12
him about his relationship with defendant, Diego responded: " [w]e love each

other a lot."

      Diego testified that he did not believe his daughter when his wife first told

him that Amelia had accused his brother of sexually assaulting her. He testified

that he asked Amelia directly "what happened" several times; but "she did not

tell [him] anything." He also claimed he "felt bad" when the police officers

came to his house and told him that Amelia alleged defendant had sexually

assaulted her. Diego decided to personally confront his brother about these

allegations "a couple of days" after he was arrested.            This prompted the

following questions by the prosecutor:

                Q. Okay. And why do you talk to him?

                A. Because I was going to ask him for the truth. If it
                happened or if it did not happen.

                Q. And by the truth, are you referring to the allegations
                that [Amelia] made?

                A. Yes.

                Q. Did you ask him if it were true?

                A. Yes.

                Q. And what did he tell you?

                A. He responded that it was true.

                Q. How was your brother’s emotion when he said
                                                                            A-1591-17T1
                                          13
               that to you?

               A. He said that, I felt very bad. I don’t know how
               to --

               Q. Did you see him act in a certain way?

               A. Yes.

               Q. And how was that?

               A. He -- when I went to see him in -- at the jail,3 he
               started crying.

      The prosecutor concluded his direct examination by asking Diego whether

defendant ever said anything to him "about forgiveness" during this

conversation. Diego testified that defendant specifically asked him for his

forgiveness.

      On cross-examination by defense counsel, Diego testified that he helped

defendant monetarily even after he told him he sexually molested Amelia.

Diego also testified that after defendant was arrested "the police and people from

the Prosecutor’s Office" came to his house and told him that he had to be

supportive of Amelia. Diego also claimed these same State agents warned him


3
   Diego's disclosure of defendant's detention status prompted defense counsel
to move for a mistrial. At a sidebar conference, defense counsel emphasized
that the witness had been previously instructed not to mention defendant's
detention status in the presence of the jury. The judge characterized the witness'
testimony as "a passing reference" that was "not overly prejudicial" and
summarily denied the motion.
                                                                          A-1591-17T1
                                        14
"about things that could happen" if he did not believe Amelia's account of the

events. Finally, in response to defense counsel's questions, Diego testified that

he did not disclose to the police the conversation he had with defendant at the

jail until 2015.

                                       IV

                       Division Investigator's Testimony

      The State also called as a witness Division caseworker and investigator

Mila Tirado. She described her primary responsibility is "[t]o ensure the safety

of the children." This broad mandate includes investigating allegations of sexual

abuse of children. At the time the trial began in February 2017, Tirado had been

employed by the Division in this capacity for six years. She was assigned to

investigate the allegations of sexual abuse made by Amelia against defendant.

She was also aware that the Bridgeton Police Department was investigating the

same allegations to determine whether a crime had been committed.

      Tirado testified, however, that she was charged by the Division to conduct

an independent investigation "[t]o make sure that the parents weren’t abusive or

weren’t neglectful, or anybody in a caregiver role." In this capacity, Tirado

testified that even "if there is a substantiation of abuse, whether it’s sexual or

physical[,]" she does not file criminal charges against the abuser. She testified


                                                                          A-1591-17T1
                                       15
that only law enforcement agencies were authorized to determine whether a

crime has been committed.

      Tirado explained that she was tasked with investigating the allegations of

sexual abuse against defendant because he had at times functioned as a caregiver

to Amelia. In response to the prosecutor's question, Tirado also made clear that

she was fluent in Spanish because it was the dominant language in her home and

consequently her "first language" as a child. She did not have any difficulty

communicating with defendant or Amelia's parents. 4

      Tirado testified that according to established Division protocols, a

caseworker assigned to investigate allegations of child sexual abuse must allow

criminal law enforcement investigators to take the "lead role." She explained

that law enforcement investigators who are charged with investigating these

crimes are specially trained to interview children. After speaking with the lead

detective in the Bridgeton Police Department on April 8, 2014, she began her

own independent investigation. However, Tirado emphasized "that I’m allowed

to go out and see the children. I just can’t talk about the actual sex abuse. I can

ask general safety questions."



4
   Both of Amelia's parents testified at trial through court certified Spanish
language interpreters. Defendant was also provided with an interpreter
throughout the trial.
                                                                        A-1591-17T1
                                     16
      In accordance with Division policy, Tirado testified she was also required

to interview the alleged perpetrator. She testified that she had interviewed

"hundreds" of alleged perpetrators during her career as a Division investigator.

Tirado also made clear that she did not receive any direction about how to

interview defendant from the Bridgeton Police Department or the Cumberland

County Prosecutor’s Office. In response to the prosecutor's question, Tirado

testified that she did not audio-record her interview with defendant because she

was not required to do so by the Division.

      She also testified that during the interview, she identified herself as a

Division investigator and told defendant that "[m]y purpose in speaking with

him was to see if any abuse occurred . . . [t]o get his side of the story." She did

not advise defendant of his rights under Miranda before starting the interview.

She conducted the interview in Spanish and did not have any difficulty

communicating with defendant. When she asked defendant "what happened

between him and [Amelia]," he merely responded that "he made a bad decision."

When she asked him whether he had had "sex with her", he answered: "[y]es."

      Tirado testified that defendant was aware that Amelia had filed a

complaint against him accusing him of having sexually molested her. Tirado

testified that she asked defendant to describe the details of the sexual abuse. In


                                                                           A-1591-17T1
                                       17
response to the prosecutor's questions, Tirado elaborated on what defendant

allegedly told her:

            A: [T]he devil got a hold of his mind. No, he -- the devil
            got a hold of him and he lost his mind. I’m not exactly
            sure if it -- what. It’s in my report but, you know,
            exactly what came first. I think he said the devil got a
            hold of him and that he lost his mind.

            Q. Was that something that he said to you once?

            A. He kept saying it. He kept repeating that, you know,
            he lost his mind.

            Q. Now, again, by way of the [d]efendant’s demeanor,
            can you describe his demeanor during the interview
            with you?

            A. His -- he just seemed taken back, a little shocked,
            nervous.

             Q. And is this -- you said you did a good number of
            interviews. Is this behavior common with these kinds
            of interviews?

            A. Yes.

            Q. Now, Ms. Tirado, did you ask him anything else in
            regards to the abuse?

            A. Well, I asked him for details but he didn’t respond.

            Q. So did you ask him a number of times for additional
            details?

            A. Yes.


                                                                         A-1591-17T1
                                       18
            Q. And those answers that you just gave us, were those
            answers that he gave in response to your questions?

            A. Yes.

            Q. Did he indicate to you whether or not he had
            made a mistake?

            A. Yes. Yes.

            Q. And what was it that he said?

            A. I don’t recall the exact words. 5

            Okay. He said that he made a mistake with her and he
            was not sure why.

      On cross-examination, Tirado testified her interview took approximately

twenty-five minutes. By contrast, her thirteen-page investigation report of the

incident dedicated only a two-sentence paragraph to defendant's interview.

Tirado also testified that she took notes during her interview but did not provide

a copy to either the Prosecutor’s Office or defense counsel.         Furthermore,

although she typed "what happened with the interview right away[,]" she

completed her report "two weeks after."

      Tirado testified that she was in contact with the police "from the time . . .

these allegations were initially made." She also watched the video record of



5
   To refresh her recollection, the prosecutor showed the witness a Division
Investigation Report, which had been previously marked for identification.
                                                                       A-1591-17T1
                                      19
Amelia's interview conducted by the detectives who were investigating the

allegations and asked them for a copy of the child's statement. Tirado also

interviewed Amelia "as well as the other children [who] were in the home." In

response to defense counsel's question, Tirado elaborated on the substance of

the "safety questions" she asked the children, including Amelia:

            Q. What do those general safety questions include?

            A. Do they feel safe in their home? Are they afraid of
            anyone? Forms of discipline?

            Q. Do you ask them whether or not they’ve been
            touched inappropriately by anybody inside of the
            house?

            A. Yes.

            Q. Do you also ask them whether or not they’ve been
            touched inappropriately by anybody at all, not just
            somebody inside the house?

            A. Yes.

            Q. And are those safety questions standard questions
            that you ask when you go out for any investigation?

            A. Yes.

      Returning to the thirteen-page Division report Tirado submitted in this

case, defense counsel asked Tirado about certain allegations Amelia made to a

pediatrician who conducted a physical examination on the child. Specifically,

defense counsel asked Tirado:
                                                                      A-1591-17T1
                                     20
            Q. With regard to the interview that [Amelia] gave to
            the NJ Cares doctor, at some point in time, is it fair to
            say that she told the NJ Cares doctor, she alleged that
            [defendant] also took pictures of her with his cell phone
            and that he showed her pornographic videos while they
            were in his car, also?

            A. Yes. Yes.

            Q. Okay. But from your understanding, she never said
            that in her interview with Detective Leyman; correct?

            A. Correct.

      Defense counsel questioned Tirado about defendant's references to the

devil and noted that she wrote in her report that defendant "appeared confused

and disoriented during [her] interview." Defense counsel also questioned Tirado

about Amelia's father, Diego, and his initial concerns about his daughter's

credibility. Defense counsel asked Tirado:

            Q. Did he, in fact, say that [Amelia] had a history of
            making things up?

            A. He said that -- he -- I asked him if he believed his
            daughter. "He told the worker he wanted to make sure
            it happened because [Amelia] has a history of making
            things up." And he gave an example about, she lied
            about --

      The record shows the trial judge interrupted the witness's testimony and

sua sponte requested a sidebar conference with counsel. At this point, the

transcript of the sidebar conference states: "Whereupon a significantly inaudible

                                                                         A-1591-17T1
                                      21
sidebar discussion commenced . . . [.]" The few audible words included in the

transcript are not enough to infer, within a reasonable degree of reliability, the

nature of the discussion, the legal issues raised, or the ultimate decision reached

by the trial judge. When the sidebar conference ended, defense counsel asked

Tirado the following question:

            Q. Aside from the time . . . that’s specifically mentioned
            in your report, did you ever inquire with [Amelia’s]
            parents as to whether or not there were any other times?

            A. No.

      Defendant did not call any witnesses and opted not to testify in his own

defense. Against this record, defendant raises the following arguments in this

appeal.

                                        V

            POINT I

            THE     JUDGE    IMPROPERLY     DENIED
            DEFENDANT'S MOTION TO EXCLUDE HIS
            STATEMENT TO A DCP&P INVESTIGATOR THAT
            WAS THE PRODUCT OF AN UNRECORDED,
            UNWARNED CUSTODIAL INTERROGATION IN
            VIOLATION OF HIS FIFTH AND SIXTH
            AMENDMENT RIGHTS AND OF HIS STATE
            COMMON-LAW     RIGHT    AGAINST   SELF-
            INCRIMINATION        AND         STATE-
            CONSTITUTIONAL RIGHT TO COUNSEL.

                   A.   Under Both The Fifth Amendment
                   And New Jersey Common Law, For Two
                                                                           A-1591-17T1
                                       22
Independent Reasons, New Miranda
Warnings Were Required In Order For
Investigator Tirado To Obtain A Knowing
And Voluntary Waiver From Defendant Of
His Fifth Amendment And State-Law
Rights Against Self-Incrimination.

(1) The Totality Of The Circumstances
Warranted A Finding That Defendant
Could Not Knowingly And Voluntarily
Waive His Rights Without New Miranda
Warnings.

(2) In Defendant's First Interrogation, He
Invoked His Right To Counsel, And, Thus,
Under State v. Hartley, New Miranda
Warnings Were Required Before A New
Interrogation Could Occur.

B. Under The Sixth Amendment And The
State Constitution, Defendant Should Not
Have Been Interrogated In The Manner
That He Was By Investigator Tirado Once
His Sixth Amendment Right To Counsel
Had Attached.

  (1) Even The Diminished Version Of The
Sixth Amendment Right To Counsel That
Is Recognized In Montejo v. Louisiana,
Mandated         That        Reasonably
Contemporaneous Miranda Warnings Must
Be Given To A Defendant In Order For
That Defendant To Properly Waive The
Sixth Amendment Right To Counsel.

(2) Even If The Sixth Amendment Right To
Counsel Could Possibly Be Deemed To Be
Waived Here Under Montejo, The New

                                             A-1591-17T1
                   23
                  Jersey Constitution And Common Law
                  Would Mandate Suppression.

            POINT II

            THE TRIAL JUDGE MERGED A CONVICTION,
            AND     THEN     ERRONEOUSLY  SENTENCED
            DEFENDANT TO PAY PENALTIES ON THAT
            CONVICTION ANYWAY; THE JUDGE ALSO
            ERRONEOUSLY IMPOSED THE MAXIMUM
            PENALTY UNDER N.J.S.A. 2C:14-10 WITH NO
            REFERENCE TO DEFENDANT'S ABILITY TO PAY.
            (Not Raised Below)

      After reviewing the record developed before the trial court, we reverse

defendant's conviction and remand this matter for a new trial.

      We are satisfied the trial judge committed reversible error when he denied

defense counsel's motion to bar the admission of inculpatory statements

defendant allegedly made to Division investigator Tirado when she interviewed

him at the county jail. We hold Tirado was required to apprise defendant of his

Miranda rights because she interviewed him in a custodial setting. Under the

totality of the circumstances, defendant's waiver of his Miranda rights thirty-six

days earlier when he was interrogated at the police station by the two detectives

was not sufficient to find, beyond a reasonable doubt, that his waiver remained

legally viable. However, we hold that Tirado did not violate defendant's Sixth

Amendment right to counsel when she interviewed him without his attorney's

consent.
                                                                          A-1591-17T1
                                       24
      Defendant was arrested on these charges on April 7, 2014. Bridgeton

Police Detectives Leyman and Martinez administered Miranda warnings to

defendant at the police station. Defendant thereafter voluntarily waived his Fifth

Amendment rights and agreed to answer the detectives' questions during the

following two hours.     Defendant did not make any incriminating statements

during this interrogation. He was transported to the county jail and held there

until his trial and subsequent conviction. On May 16, 2014, thirty-six days after

he was first apprised of his Miranda rights, Tirado interviewed defendant at the

county jail without his attorney's knowledge or consent and without again

informing him of his Miranda rights.

      At the N.J.R.E. 104(c) evidentiary hearing conducted by the judge before

the start of trial, Tirado testified the Division received a referral from the

Bridgeton Police Department involving allegations of sexual abuse of a child by

her paternal uncle. The victim was then thirteen years old. Tirado testified her

responsibility was to determine whether there was evidence that the child had

been abused and whether the parents were aware of the abuse.            She first

interviewed the victim, her siblings, and the parents.

      Tirado testified that she was also required to interview the perpetrator of

the abuse. It is undisputed that at the time Tirado interviewed defendant at the

Cumberland County Jail: (1) she had spoken with law enforcement agents
                                                                          A-1591-17T1
                                       25
assigned to investigate the case; (2) she had viewed the video-audio record of

the child's interview by law enforcement detectives; (3) she had read the

statement defendant gave to law enforcement agents after he was given Miranda

warnings; and (4) she knew defendant had been assigned an attorney to represent

him in this case.

      In response to the prosecutor's questions, Tirado made clear that she was

conducting an independent investigation. She did not ask any questions on

behalf of the Prosecutor's Office nor was she ever requested by any law

enforcement agent to do so. She also was not contacted by any attorney on

behalf of defendant. The purpose of her interview was to determine whether

defendant had abused his niece.

            Q. Now, was the purpose of your interview        to gain
            additional evidence that could be used            in the
            prosecution against [defendant], or was it       to gain
            information to determine whether or               not a
            substantiation of abuse or neglect was proper?

            A. To see whether a substantiation of abuse or neglect
            was conducted.

            Q. Now, when you sit down with [defendant] in this
            isolated area that you’re speaking about, when you first
            sit down with him, did you at any time provide what
            law enforcement typically refers to as Miranda
            warnings?

            A. No.

                                                                       A-1591-17T1
                                      26
            Q. Okay. And are you familiar with the term Miranda
            warnings?

            A. Yes.

Tirado also testified that defendant never told her that he did not want to answer

her questions or asked her to stop the interview.

      On cross-examination at the N.J.R.E. 104(c) hearing, Tirado admitted it

is "normal" for her to inform the police of anything "criminal" she discovers in

the course of her investigation.

            Q. So on a regular basis, if . . . somebody admits to
            something or you -- some allegations, you hand that
            information over; correct?

            A. Yes.

            Q. And you knew there were criminal charges already
            pending against [defendant]; correct, when you
            interviewed him?

            A. Yes.

      The trial judge found defendant was in a custodial setting at the time the

Division investigator interviewed him at the county jail. The judge also found

that under these circumstances, the Division investigator was required to advise

defendant of his Miranda rights and obtained his knowing, intelligent waiver of

those constitutional rights before asking him any questions related to these

charges. We agree.

                                                                          A-1591-17T1
                                       27
      The facts we confront here are similar to the facts this court addressed in

State v. Helewa, 223 N.J. Super. 40 (App. Div. 1988). In Helewa, the defendant

was arrested by Old Bridge Township Police Department detectives and charged

with sexually assaulting his two teenaged daughters.        Id. at 42.   He was

transported to police headquarters, advised of his Miranda rights "and given a

Miranda warning card . . . [.]" Ibid. The defendant read the warning card, signed

it in the presence of a police officer, and did not request an attorney. Ibid.

However, unlike what occurred here, the defendant in Helewa was not

questioned by law enforcement agents until he was transferred to the Middlesex

County Adult Corrections Center (Corrections Center) five hours later. Ibid.

      A Division6 caseworker interviewed the defendant's wife and daughters

on the evening of the defendant's arrest. Ibid. Although she asked to interview

the defendant that night as well, Old Bridge Police Officers requested that she

postpone his interview. Ibid.     The caseworker also obtained a copy of the

complaint the police filed against the defendant and the Miranda card he signed.

Id. at 42-43. We thus noted that the caseworker "was aware that [the] defendant

had been advised of his rights" when she arrived to interview him the following

day at the Corrections Center. Id. at 43.


6
  At the time this court decided Helewa in 1985, the Division was named
"Division of Youth and Family Services (DYFS)."
                                                                 A-1591-17T1
                                    28
           The interview between [the] defendant and [the
           Division caseworker] took place in a small office or
           "Special Needs Pod" within the Corrections Center, but
           outside of the presence of the police or the prison
           guards. [The caseworker] introduced herself as a
           [Division] caseworker and explained that she needed to
           discuss the allegations of sexual abuse with him. [The]
           [d]efendant, however, expressed reservations about
           discussing these allegations and told [the caseworker]
           that "he had talked with his two lawyers and he had
           talked to his father and he had talked to his girlfriend
           . . . and he wasn't sure if his lawyer would get mad at
           him for speaking to [her]." In response, [the
           caseworker] told him that "he should do what he
           thought was best" and explained that although she did
           not work for the prosecutor's office or the police
           department, a copy of his statement would be sent to
           the prosecutor's office.

           [The caseworker] did not pressure [the] defendant into
           talking or indicate that the interview would be for his
           benefit. However, she did tell him, "You can talk to
           me, this is part of the investigation", to which [the]
           defendant apparently responded, "I don't know whether
           my lawyer will be mad at me or not but I have nothing
           to lose so I'm going to talk to you." Although [the]
           defendant was aware at this time that he did not have to
           talk to her and that he had the right to have an attorney
           present, he was not re-advised of his Miranda rights by
           [the caseworker] prior to giving the interview. The
           interview lasted an hour and 15 minutes. Eventually,
           [the caseworker] turned [the] defendant's statement
           over to the Middlesex County Prosecutor's Office.

           [Ibid.]

     Writing for the court in Helewa, Judge Michels noted that in Mathis v.

United States, 391 U.S. 1 (1968), the United States Supreme Court suppressed
                                                                       A-1591-17T1
                                     29
an oral statement the defendant made to an Internal Revenue Agent (IRS) while

he was serving a state prison sentence. Helewa, 223 N.J. Super. at 45. That

case involved an IRS agent who elicited information from the defendant in

connection with a routine civil action to collect delinquent taxes, without first

advising him of his Miranda rights. Ibid. However, "the Government began a

full-fledged criminal investigation eight days later and successfully prosecuted

[the] defendant for two counts of tax fraud." Ibid. The Government argued the

defendant's oral statements were admissible because they were solicited in

connection with a civil enforcement action. Ibid. The Supreme Court rejected

this argument and held:

            It is true that a "routine tax investigation" may be
            initiated for the purpose of a civil action rather than
            criminal prosecution . . . But tax investigations
            frequently lead to criminal prosecutions, just as the one
            here did . . . And, as the investigating revenue agent
            was compelled to admit, there was always the
            possibility during his investigation that his work would
            end up in a criminal prosecution.

            [Ibid. (quoting Mathis, 391 U.S. at 4).]

      Judge Michels also cited Estelle v. Smith, 451 U.S. 454 (1981), a situation

analogous to Mathis, where the Court held "that a court-ordered psychiatric

examination, given without Miranda warnings, cannot be used in the penalty

proceeding of a capital murder case to demonstrate the defendant's depravity."

                                                                         A-1591-17T1
                                      30
Id. at 45-46 (citing Estelle, 451 U.S. at 467).   Finally, Judge Michaels cited

United States v. Mata-Abundiz, 717 F.2d 1277 (9th Cir.1983), where the Circuit

Court relied on Mathis to suppress the statement the defendant gave to a criminal

investigator from the Immigration and Naturalization Service while the

defendant was incarcerated on state firearm charges. Id. at 46. Thus, following

the constitutional principles established in this trilogy of cases, we held in

Helewa "that Miranda applies to a custodial interview conducted by a [Division]

caseworker . . . under the circumstances here present." Id. at 47.

      We have consistently recognized and endorsed this constitutional

principle. In State v. Flower, 224 N.J. Super. 208 (Law Div. 1987), aff'd o.b.,

224 N.J. Super. 90 (App. Div. 1988), we upheld the suppression of a statement

obtained from the defendant by a Division caseworker in an interview conducted

in a county jail. There, the caseworker did not first advise the defendant of his

rights under Miranda, despite knowing the defendant was incarcerated on the

charge of sexually assaulting a three-and-a-half year old child. Id. at 211.

      However, relying on our Supreme Court's decisions in State v. Nyhammer,

197 N.J. 383 (2009), State v. Melvin, 65 N.J. 1 (1974), and State v. Magee, 52

N.J. 352 (1968), the trial judge here found the Miranda warnings Detectives

Leyman and Martinez gave defendant on April 7, 2014 remained

constitutionally viable under these circumstances to admit defendant's
                                                                          A-1591-17T1
                                      31
inculpatory statements during Tirado's interview at the county jail. According

to the trial judge, defendant "never lost focus of the fact that the things that he

. . . was saying, were useable against him" and "knew he had a right to an

attorney and he didn’t have to speak if he didn’t want to." The trial judge

acknowledged that the facts here involve "a substantially longer period of time

. . . than was present in the McGee case, or the Melvin case, or the Niemeyer

case." Nonetheless, he concluded:

            I do find that it is significant that he remained
            incarcerated from the time that his initial interview to
            the time of the second interview. But, I find that it is
            significant because it demonstrates that the defendant
            never had an opportunity to lose focus on why he was
            there. He was incarcerated immediately after being
            interviewed, initially, where he made his general
            denials.

                   ....

            [P]rior to his statement he was . . . aware that the person
            he was speaking to was an agent of the State of New
            Jersey. He understood he was dealing with a person
            who was there under color of authority of the State,
            when he was making his statements.

            [I]t was not a situation as if [an] undercover person was
            being placed into this environment in order to get him
            to speak without an understanding that what he was
            saying was an official statement on his part.

            She identified herself as a DCP&P worker. She
            indicated she was investigating the circumstances of the

                                                                           A-1591-17T1
                                       32
            same event for which he had previously been
            Mirandized.

                  ....

            [T]he Court finds . . . his Miranda rights were intact at
            the time of the DCP&P worker’s interview, that the
            passage of time did not, in and of itself, work to vitiate
            the validity of the waiver he gave at the time of his
            initial interview.

      The trial judge's reliance on the Court's holding in Magee was misplaced.

In Magee, the police apprised the defendant of his rights under Miranda. Two-

and-a-half-days later, the defendant, while in custody, voluntarily came forward

and made inculpatory statements. 52 N.J. at 372-75. Under these circumstances,

the defendant in Magee argued that when he made "an unsolicited invitation" to

the police to question him further, the officers were required to repeat the

Miranda warnings before proceeding further. Id. at 374.

      Writing for the Court, Justice Francis rejected the defendant's argument

but included the following significant caveat which we highlight here:

            Once Miranda's rule has been complied with at the
            threshold of the questioning it is not necessary as a
            matter of law to repeat the warnings at each successive
            interview. . . . In this connection the important factors
            are whether the suspect understood that he did not have
            to speak, the consequences of speaking, and that he had
            the right to counsel before doing so if he wished. A
            circumstance to be considered also is the period of time
            between the warnings and the volunteered inculpatory
            admission. Here the time lapse was short, and, as we
                                                                         A-1591-17T1
                                       33
            have said, defendant was not a neophyte in court
            matters and the use of counsel.

            [Id. at 374-75 (emphasis added).]

      Here, the trial judge concluded that the Miranda warning defendant

received from Bridgeton Detectives Leyman and Martinez at the time of his

arrest on April 7, 2014 were sufficient to overcome Tirado's failure to carry out

her obligation to apprise him of his Miranda rights when she interviewed him at

the county jail thirty-six days later on May 16, 2014. We disagree. These facts

are critically different from the circumstances the Court confronted in Magee.

Here, defendant made the inculpatory statements in response to Tirado's

questions. He did not voluntarily offer or spontaneously utter these inculpatory

remarks to Tirado. Furthermore, the record shows this is defendant's first and

only involvement with the criminal justice system.            Finally and most

significantly, the time gap here was thirty-six days.

      As an appellate court, we are bound to defer "to a trial court's factual

findings concerning the voluntariness of a confession that are based on sufficient

credible evidence in the record." State v. L.H., 239 N.J. 22, 47 (2019) (citing

State v. Elders, 192 N.J. 224, 244 (2007)).     However, "'[w]hen faced with a

trial court's admission of police-obtained statements, an appellate court should

engage in a searching and critical review of the record to ensure protection of a

                                                                          A-1591-17T1
                                       34
defendant's constitutional rights.'" Ibid. (quoting State v. Hreha, 217 N.J. 368,

381-82 (2014) (citation omitted)).

      Under the totality of these circumstances, we conclude the record does not

support the trial judge's finding that defendant's Miranda rights remained legally

viable at the time Tirado interviewed him thirty-six days later. Under these

circumstances, it is unreasonable to expect an ordinary person in defendant's

situation to recall and meaningfully comprehend Miranda rights read to him by

police investigators more than a month earlier. In short, the circumstances here

materially diluted the effectiveness of the warning the police investigators

provided defendant on April 7, 2014. State v. Dispoto, 189 N.J. 108, 124-25

(2007).

      Tirado also failed to follow the standards codified in Rule 3:17(a), which

requires that "custodial interrogations conducted in a place of detention must be

electronically recorded when the person being interrogated is charged with . . .

aggravated sexual assault, sexual assault, aggravated criminal sexual contact,

[and/or] criminal sexual contact . . . [.]" Rule 3:17(b) lists the circumstances

under which electronically recording is not required. None of the exemptions

listed in Rule 3:17(b) apply here.

      Defendant also argues Tirado violated his Sixth Amendment right to

counsel by interviewing him at the county jail without first obtaining the consent
                                                                          A-1591-17T1
                                       35
of his attorney. We disagree. At the time Tirado interviewed defendant, she

was not required to obtain his attorney's consent to interview him at the county

jail.

        Our Supreme Court has made clear that after an indictment, the State

"should not initiate a conversation with defendants without the consent of

defense counsel." State v. Sanchez, 129 N.J. 261, 277 (1992). After a defendant

is indicted, he or she may not waive his right to counsel without the advice of

counsel. Ibid. However, the Court has consistently declined repeated efforts to

extend Sanchez's holding to earlier criminal proceedings. State ex rel. P.M.P.,

200 N.J. 166, 175 (2009); State v. A.G.D., 178 N.J. 56, 58 (2003); State v.

Tucker, 137 N.J. 259, 291 (1994).

        In Sanchez, the Court explained the rationale for forbidding "prosecutors

or their representatives" from initiating a conversation with defendants without

the consent of defense counsel:

              The return of an indictment transforms the relationship
              between the State and the defendant. By obtaining the
              indictment, the State represents that it has sufficient
              evidence to establish a prima facie case. Once the
              indictment is returned, the State is committed to
              prosecute the defendant. From that moment, if not
              before, the prosecutor and the defendant are
              adversaries. Questioning the accused can be only "for
              the purpose of buttressing . . . a prima facie case." The
              spotlight is on the accused. Under those circumstances,
              the perfunctory recitation of the right to counsel and to
                                                                          A-1591-17T1
                                        36
            remain silent may not provide that defendant with
            sufficient information to make a knowing and
            intelligent waiver. Such a recitation does not tell the
            defendant the nature of the charges, the dangers of self-
            representation, or the steps counsel might take to
            protect the defendant's interests. Those steps include
            pretrial motions such as those to test the sufficiency of
            the indictment or to suppress illegally-seized evidence.
            They also include the negotiation, subject to the
            approval of the court, of a plea agreement. Given the
            adversarial nature of their relationship, for the State's
            representatives to communicate adequately that
            information to an indicted defendant would be difficult,
            nigh to impossible.

            [129 N.J. at 276-77 (citations omitted).]

      Here, Tirado's role as a Division investigator was to determine whether

Amelia was safe; whether her parents had taken the necessary measures to

ensure her physical safety and emotional welfare; and to investigate the veracity

of Amelia's allegations of sexual abuse against her paternal uncle. Tirado's

testimony at trial describing her activities and responsibilities in this case is

consistent with the duties of Division investigators codified in the regulations

promulgated by the Department of Children and Families, N.J.S.A. 9:3A-1 to -

3A-17.

      Pursuant to N.J.A.C. 3A:10-3.1(a), a child protective investigator is

required to interview a child who may have been abused in person and

individually. During the investigation of a report containing any allegation, the

                                                                         A-1591-17T1
                                      37
child protective investigator shall observe each non-verbal alleged child victim.

The child protective investigator shall use sensitivity to avoid further trauma to

each alleged child victim. The investigator is also required to interview "the

reporter and each other person identified in the current report or related

information as having knowledge of the incident . . . including, but not limited

to the alleged perpetrator." N.J.A.C. 3A:10-3.1(b) (6) and (7).

      The Court's holding in Sanchez is predicated on the notion that the

relationship between a defendant and the prosecutor becomes adversarial only

after the return of a grand jury indictment. We discern no legal basis to apply a

different standard to review Tirado's interactions with defendant in this case.

Moreover, unlike the activities of a prosecutor's investigator, the scope of a

Division investigator's role at this stage of the case is codified in N.J.A.C.

3A:10-3.2. We thus hold that the Court's holding in Sanchez applies with equal

force to Tirado in her role as a Division investigator. Her decision to interview

defendant without first obtaining his attorney's consent did not violate

defendant's Sixth Amendment right to counsel.

                                       VI

       We disagree with the State that the admission of Tirado's testimony was

harmless error. The State did not present any physical or forensic evidence to

corroborate Amelia's testimony. The State's case against defendant was entirely
                                                                          A-1591-17T1
                                       38
based on the credibility of the complaining witness and the admissions of

defendant's inculpatory statements made to his brother and to the Division's

investigator.

         "The test for determining whether an error is harmless 'is whether there is

a reasonable possibility that the evidence complained of might have contributed

to the conviction.'" Sanchez, 129 N.J. at 278 (quoting Chapman v. California,

386 U.S. 18, 23-24 (1967)). The key question here is not whether the State

presented "sufficient evidence" for a reasonable jury to convict defendant absent

the unlawfully obtained statements. The standard here is whether we are "'able

to declare a belief that [the error] was harmless beyond a reasonable doubt. '"

State v. McCloskey, 90 N.J. 18, 32 (1982) (quoting Chapman, 386 U.S. at 24).

Under the totality of these circumstances, we cannot so declare. Based on this

decision, we are not required to, and expressly do not reach defendant's

remaining argument attacking the validity of the sentence imposed by the trial

court.

                                         VII

         Defendant's conviction is reversed and the matter is remanded for a new

trial. We do not retain jurisdiction.




                                                                            A-1591-17T1
                                         39
