                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5139-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MYRIAM JANVIER,

     Defendant-Appellant.
_____________________________

                    Submitted February 25, 2019 – Decided May 1, 2019

                    Before Judges Messano, Gooden Brown, and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 12-06-1695.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Brian P. Keenan, Assistant Deputy Public
                    Defender, of counsel and on the briefs).

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

PER CURIAM
      An Essex County grand jury indicted Myriam Janvier (defendant) and

Krisla Rezireksyon Kris, a/k/a Venette Ovilde, charging them with the murder

of Rezireksyon's eight-year-old daughter, C.R.K.,1 and thirty-six other counts

relating to the maltreatment of C.R.K. and Rezireksyon's two other minor

children.2 Following a hearing pursuant to N.J.R.E. 104(c), the judge denied in

part, and granted in part, defendant's motion to suppress a statement given to

law enforcement authorities.

      Thereafter, defendant pled guilty to first-degree aggravated manslaughter,

N.J.S.A. 2C:11-4(a)(1), three counts of second-degree endangering the welfare

of a child, N.J.S.A. 2C:24-4(a); and three counts of third-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(2).3 The judge sentenced defendant to eighteen-

years imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2,




1
   We use initials to protect the child's identity. R. 1:38-3(c)(9). Additionally,
all the children were identified with initials and last name aliases in the
indictment. The jury verdict sheet reflects the aliases used during trial.
2
   Rezireksyon was charged alone in count thirty-eight with third-degree
hindering apprehension, N.J.S.A. 2C:29-3(b).
3
  Rezireksyon elected to go to trial. In a separate opinion also filed today in A-
0469-16, we affirm her judgment of conviction and sentence.


                                                                          A-5139-16T4
                                        2
on the aggravated manslaughter conviction, with the remaining sentences

running concurrent to that sentence.

       Before us, defendant raises the following points:

              POINT I

              THE MOTION JUDGE APPLIED THE WRONG
              STANDARD          THEREBY     ERRONEOUSLY
              DENYING DEFENDANT'S MOTION TO SUPPRESS
              HER POST-MIRANDA[4] STATEMENT TO THE
              POLICE, WHICH WAS ELICITED USING THE
              QUESTION FIRST, WARN LATER PROCEDURE,
              BARRED UNDER STATE LAW.           STATE V.
              O'NEILL, 193 N.J. 148 (2007).

              POINT II

              THE JUDGE ACCORDED UNDUE WEIGHT TO
              AGGRAVATING FACTORS ONE AND TWO
              BASED ON AN INCORRECT FACTUAL BASIS
              AND IMPROPERLY FOUND AGGRAVATING
              FACTOR FIFTEEN IN IMPOSING A MANIFESTLY
              EXCESSIVE SENTENCE      THAT REQUIRES
              REVERSAL.

We have considered these arguments in light of the record and applicable legal

standards. We affirm defendant's conviction and remand the matter for re -

sentencing.




4
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                       A-5139-16T4
                                        3
                                       I.

      We explained the significant details regarding the initial police

investigation in our opinion, State v. Rezireksyon, A-0469-16. On the evening

of May 22, 2011, after already securing a statement from Rezireksyon,

Detectives Michael Anthony Davidson and Darryl Holmes, of the Essex County

Prosecutor's Office and the Irvington Police Department, respectively, took a

video-recorded statement from defendant. Davidson testified at the pre-trial

hearing regarding the circumstances surrounding the statement, and the judge

viewed the video.

      Davidson responded to the apartment that defendant and Rezireksyon

occupied to investigate the suspicious death of a child. Davidson saw the dead

child's body, and was informed by another sergeant that Rezireksyon was the

mother. As he approached "a makeshift door" in the apartment to investigate

further, defendant asked Davidson why he was going into her room. Inside,

Davidson found Rezireksyon's two other children huddled in the corner, but

showing no signs of injury, except for some minor scars.

      Defendant was transported to police headquarters. Davidson, who had

already taken a statement from Rezireksyon, was unaware of the cause of

C.R.K.'s death. He testified that defendant was not under arrest or a suspect and


                                                                         A-5139-16T4
                                       4
was free to leave at any time. He did not administer Miranda warnings to

defendant at the start of the interview, but did so approximately one hour and

twenty minutes later, after concluding defendant "was more of a co-mother" of

the children and "had more responsibility to the kids than [he] believed in the

beginning" of the interview. The interview continued after defendant read the

Miranda rights aloud from a printed form and signed the waiver.

      In a written decision, the judge concluded that defendant's statements

made prior to Davidson administering Miranda warnings, although voluntarily

given, were the products of custodial interrogation and must be suppressed. He

reached a different result regarding statements defendant made after the

warnings.

      The judge concluded that defendant knowingly and voluntarily waived her

Miranda rights, her statement was "given voluntarily," and it was not the product

of "psychological pressure, threats, . . . promises" or physical abuse. Citing

Oregon v. Elstad, he rejected the argument that defendant's post-Miranda

statement was the "fruit of the poisonous tree[]" for the proposition that the

doctrine "does not apply to . . . a noncoercive Miranda violation." See 470 U.S.

298, 318 (1985) (holding that "a suspect who has once responded to unwarned




                                                                         A-5139-16T4
                                       5
yet uncoercive questioning is not thereby disabled from waiving his rights and

confessing after he has been given the requisite Miranda warnings").

      Defendant argues the judge "applied the incorrect, federal standard" in

refusing to suppress her post-Miranda warning statements and instead should

have followed the Court's holding in O'Neill, which, she contends, "banned" the

"'ask first, warn later' interview technique." The State argues that by pleading

guilty, defendant waived her right to appeal the motion judge's decision.

Alternatively, the State argues the judge considered all relevant factors as

outlined in O'Neill and properly admitted the post-Miranda warning portion of

defendant's statement.

      We agree that defendant's guilty plea foreclosed the ability to challenge

the admission of her post-Miranda warning statements. See State v. Knight, 183

N.J. 449, 470 (2005) ("[A] defendant who pleads guilty is prohibited from

raising, on appeal, the contention that the State violated his constitutional rights

prior to the plea.") (quoting State v. Crawley, 149 N.J. 310, 316 (1997)). As the

Court explained in Knight, there are generally only three exceptions to the

waiver rule, none of which apply here. Id. at 471. The first exception is

provided expressly by Rule 3:5-7(d), which permits a defendant to challenge on

appeal an unlawful search and seizure of physical evidence after entering a


                                                                            A-5139-16T4
                                         6
guilty plea. Ibid.; see also State v. Robinson, 224 N.J. Super. 495, 500 (App.

Div. 1988) ("[U]nsuccessful challenges to statements and Miranda violations

cannot be raised on appeal after a guilty plea pursuant to Rule 3:5-7(d)."). The

second, expressly permitted by Rule 3:28-6(d), permits a post-guilty-plea appeal

from an order denying entry into a pre-trial intervention program (PTI). Knight,

183 N.J. at 471. Lastly, if a defendant enters a conditional guilty plea pursuant

to Rule 3:9-3(f), she may appeal those issues expressly preserved. Ibid.

      In her reply brief, defendant argues we should consider her guilty plea a

conditional plea because: 1) although the judge informed her at the time that

she was waiving certain rights by pleading guilty, he failed to advise her she

was waiving her right to appeal from the pretrial ruling; and, 2) she provided no

written response to Question 4(e) on the plea form, which reads: "Do you further

understand that by pleading guilty you are waiving your right to appeal the

denial of all other pretrial motions except the following: [blank.]"

      "The importance of the constitutional rights being waived when a

defendant enters a guilty plea necessitates that the knowing and voluntary nature

of the plea be demonstrated in the record so that it may be reviewed on appeal. "

State v. Simon, 161 N.J. 416, 443 (1999) (citing Boykin v. Alabama, 395 U.S.

238, 243 (1969)). Hence, every judge in New Jersey engages in the questioning


                                                                           A-5139-16T4
                                        7
of defendants on a daily basis throughout courtrooms of our state prior to

accepting a guilty plea. Question 4 on the plea form spotlights these rights.

       Subpart (d) of the plea form specifically addresses the holding in Knight

by indicating a defendant does not waive his or her right to appeal the denial of

a motion to suppress pursuant to Rule 3:5-7(d), or rejection of an application to

enter PTI.    Subpart (e) accomplishes two goals.      It specifically advises a

defendant that he or she is waiving the right to appeal pretrial motions, unless

the appeal from the decision on a specific pretrial motion is preserved by listing

it on the plea form.

      Here, defendant argues we should interpret the lack of any answer to

subpart (e) as the equivalent of a conditional guilty plea. However, Rule 3:9-

3(f) requires that a defendant satisfy several conditions before a conditional

guilty plea is accepted. "[A] defendant may plead guilty while preserving an

issue for appellate review only with the 'approval of the court and the consent

of the prosecuting attorney.'" State v. Gonzalez, 254 N.J. Super. 300, 304 (App.

Div. 1992) (quoting R. 3:9-3(f)). This reservation of "the right to appeal from

the adverse determination of any specified pretrial motion" must be placed "on

the record . . . ." R. 3:9-3(f).




                                                                          A-5139-16T4
                                        8
      We have chosen not to apply the rule when "[s]trict adherence to [its]

requirements . . . 'would result in an injustice.'" Gonzalez, 254 N.J. at 304

(quoting R. 1:1-2(a); see also State v. J.M., 182 N.J. 402, 410 (2005))

(considering the "important issue of whether [a] juvenile may present evidence

at the probable cause portion of the waiver hearing[,]" despite the defendant's

unconditional guilty plea, "[b]ecause the State failed to raise [the waiver]

argument below").

      Here, there is nothing to suggest that defendant intended to enter a

conditional guilty plea. There is no evidence whatsoever in the record that

satisfies the rule's two essential prerequisites — "approval of the court" and

"consent of the prosecutor." The judge, the prosecutor and defense counsel

simply never discussed the subject. Cf., State v. Stephenson, 350 N.J. Super.

517, 519 n.2, (App. Div. 2002) (rejecting the State's argument that the defendant

waived his right to appeal where defense counsel at the plea hearing indicated

an intention to appeal the denial of the defendant's pre-trial motion to suppress

his statement to police). Nevertheless, to avoid any prospective petition seeking

post-conviction relief on the issue, we address the merits of defendant's cl aim.

      "[O]n appellate review, a trial court's factual findings in support of

granting or denying a motion to suppress must be upheld when 'those findings


                                                                          A-5139-16T4
                                        9
are supported by sufficient credible evidence in the record.'" State v. S.S., 229

N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)).

"[T]he clearly mistaken/clearly erroneous standard of appellate review" applies

to factual findings made by the motion judge "based on video recording or

documentary evidence . . . ." Id. at 381. Legal conclusions reached from those

facts, however, are subject to our plenary review. State v. Hreha, 217 N.J. 368,

382 (2014) (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).

      We agree with defendant that the judge's use of the Supreme Court's

analysis in Elstad to decide the motion was a mistake of law. In O'Neill, the

Court specifically forged a different path, relying on "our state law privilege

against self-incrimination . . . ." 193 N.J. at 175. We must, therefore, "decide

the controversy in the proper light of the applicable law." State v. Lyons, 417

N.J. Super. 251, 258 (App. Div. 2010) (citing State v. Steele, 92 N.J. Super. 498,

507 (App. Div. 1966)).

      Contrary to defendant's assertion, the O'Neill Court did not "ban" the

technique of question first, warn later.    The Court specifically said, "[w]e

emphasize that we are not pronouncing a bright-line rule." 193 N.J. at 181.

Instead, the Court held that when determining whether to admit post-Miranda-




                                                                          A-5139-16T4
                                       10
warning statements in this context, "courts should consider all relevant factors,"

which include:

            (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.

            [Ibid.]

"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 privilege. "

Id. at 181-82.

      Here, several of these factors weigh in favor or suppression. For example,

Davidson questioned defendant for an extended period before administering the


                                                                          A-5139-16T4
                                       11
warnings, the interview was virtually seamless, with the post-Miranda warnings

portion flowing immediately from the earlier portion, and both parts of the

interrogation were conducted in the same place by the same officers. The

detectives never informed defendant that her pre-warning statements would not

be used against her.

      However, these factors only serve to inform a decision on the ultimate

principal announced in O'Neill: "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. In this case, we must conclude the Miranda

warnings had the required effect on the interrogation that followed their

administration. We reach that conclusion because on several occasions during

the post-warning interrogation, defendant refused to answer certain questions.

At one point, defendant made clear that she wished to continue with the

interview, but did not want to respond to a particular question posed. These

statements by defendant indicate she clearly understood her rights and how to

exercise them; she had not "crossed a psychological bridge from which there

was no turning back." Id. at 170.




                                                                       A-5139-16T4
                                     12
      We affirm the denial of defendant's motion to suppress the post-Miranda

warning portion of her statement to the detectives.

                                         II.

      In sentencing defendant, the judge found aggravating factors one, two,

nine and fifteen. See N.J.S.A. 2C:44-1(a)(1) ("nature and circumstances of the

offense, . . . including whether . . . it was committed in an especially heinous,

cruel, or depraved manner"); (a)(2) ("seriousness of harm inflicted on the victim,

including whether . . . defendant knew . . . the victim . . . was particularly

vulnerable or incapable of resistance due to . . . extreme youth . . ."); (a)(9) (the

need to deter defendant and others); and (a)(15) ("[t]he offense involved an act

of domestic violence, as . . . defined in [N.J.S.A. 2C:25-19(a)]," and the

defendant committed an "act of domestic violence on more than one occasion").

The judge also found mitigating factor seven. See N.J.S.A. 2C:44-1(b)(7) (no

prior criminal history).

      Defendant contends the judge found aggravating factors one and two

based on facts unsupported by substantial evidence in the record, and

aggravating factor fifteen, which, as a matter of law, did not apply. We agree.

      "Appellate review of sentencing decisions is relatively narrow and is

governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283,


                                                                             A-5139-16T4
                                        13
297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). We consider

whether the trial court has "appl[ied] correct legal principles in exercising its

discretion." Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334,

363 (1984)). As part of our review, we must determine whether "the aggravating

and mitigating factors found by the sentencing court were not based upon

competent and credible evidence in the record . . . ." State v. Fuentes, 217 N.J.

57, 70 (2014). We will affirm the sentence if:

            (1) the trial court followed the sentencing guidelines;

            (2) its findings of fact and application of aggravating
            and mitigating factors were "based upon competent
            credible evidence in the record;" and

            (3) "the application of the guidelines to the facts" of the
            case does not "shock[ ] the judicial conscience."

            [State v. A.T.C., 454 N.J. Super. 235, 254 (App. Div.
            2018) (alteration in original) (quoting State v. Bolvito,
            217 N.J. 221, 228 (2014)).]

And, while a sentence imposed in accordance with a plea bargain, as this was,

is presumptively reasonable, we should vacate and remand the matter for

resentencing "if [the sentence] does not comport with the sentencing provisions

of our Code of Criminal Justice." Fuentes, 217 N.J. at 71.

      The State concedes that aggravating factor fifteen does not apply because

an act of domestic violence, as defined by N.J.S.A. 2C:25-19(a), can only be

                                                                          A-5139-16T4
                                       14
"inflicted upon a person protected under" the Prevention of Domestic Violence

Act, N.J.S.A. 2C:25-17 to -35. A person protected under the Act is a "[v]ictim

of domestic violence" and generally must be "[eighteen] years of age or older or

. . . an emancipated minor . . . ." N.J.S.A. 2C:25-19(d). The victims here were

all very young children, and, therefore, defendant's offenses did not "involve []

an act of domestic violence . . . ." N.J.S.A. 2C:44-1(a)(15).

      We may "remand for resentencing if the trial court considers an

aggravating factor that is inappropriate to a particular defendant or to the offense

at issue." Fuentes, 217 N.J. at 70 (citing State v. Pineda, 119 N.J. 621, 628

(1990)). The State urges us to avoid a remand because the error as to factor

fifteen "had an inconsequential effect on the overall sentence."           Perhaps.

However, there are other reasons why a remand is required.

      The judge premised his findings as to aggravating factor one upon "ample

evidence in the record, including evidence from co-defendant's trial regarding

the malnutrition of the children, the children's fractured bones from beatings ,

and the ropes used to tie the children to a radiator, which occurred over about

three years," which demonstrated the "especially cruel manner and prolonged

period in which the crimes were committed against the child victims." (emphasis

added). In finding factor two, the judge noted that "the duration of the offenses


                                                                            A-5139-16T4
                                        15
spanned about three years," during which the victims' "extreme malnourishment

and injuries . . . prevented them from resisting defendant." (emphasis added).

      However, the basis for finding defendant participated in the horrific

treatment of the children for three years is, at the least, unclear. In her statement

to police, defendant claimed she first started living with Rezireksyon and the

children in August 2010, approximately nine months prior to the interrogation. 5

The indictment only alleged conduct occurred between August 2010 and May

2011, when C.R.K. was found dead in the apartment. Defendant did not specify

the period of time she spent with Rezireksyon and the children during her guilty

plea allocution. As a result, we agree there was no substantial credible evidence

that defendant engaged in a three-year period of child abuse and neglect. We

accordingly vacate the sentence imposed and remand for re-sentencing.

      We affirm defendant's conviction. We vacate the sentence imposed and

remand to the trial court for re-sentencing. We do not retain jurisdiction.




5
 In the statement she gave to police, Rezireksyon said defendant had been living
with her and the children for between three and six months.
                                                                             A-5139-16T4
                                        16
