                          RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-4098-16T3



STATE OF NEW JERSEY                         APPROVED FOR PUBLICATION
IN THE INTEREST OF A.A.,
                                                   July 31, 2018

     Juvenile-Appellant.                         APPELLATE DIVISION
______________________________

           Submitted April 11, 2018 – Decided July 31, 2018

           Before Judges Fuentes, Koblitz and Manahan.

           On appeal from Superior Court of New Jersey,
           Chancery   Division,  Family   Part,  Hudson
           County, FJ-09-118-17.

           Joseph E. Krakora, Public Defender, attorney
           for appellant A.A. (Alyssa Aiello, Assistant
           Deputy Public Defender, of counsel and on
           the briefs).

           Esther Suarez, Hudson County Prosecutor,
           attorney for respondent State of New Jersey
           (Luisa M. Florez, Assistant Prosecutor, on
           the brief).

      The opinion of the court was delivered by

MANAHAN, J.A.D.

      This case presents a novel issue in the context of self-

incrimination.      The   issue   is   whether   it   is   incongruous   to

require the presence of a parent prior to a waiver of Miranda1


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
rights    to     safeguard          a        juvenile's      right        against      self-

incrimination,      yet     allow       police       eavesdropping       on   the   parent-

child communication that proves antithetical to that right.

    A.A.2      appeals      from        an    adjudication        of    delinquency       for

conduct which, if committed by an adult, would constitute a

crime.      A.A.    was     originally         charged      with       attempted    murder,

N.J.S.A. 2C:11-3 and 2C:5-1; possession of a firearm for an

unlawful purpose, N.J.S.A. 2C:39-4(a); unlawful possession of a

firearm, N.J.S.A. 2C:39-5(b); and possession of a firearm by

minors,   N.J.S.A.        2C:58-6.1.            Following     a    hearing,        A.A.   was

adjudicated delinquent on two counts of second-degree aggravated

assault   as       lesser-included             offenses     of     attempted         murder,

possession     of    a     weapon       for     an    unlawful      purpose,        unlawful

possession of weapons, and possession of firearms by minors.

The disposition was to a two-year custodial term at the New

Jersey Training School for Boys.

    We derive the following facts from the hearing record.                                 At

approximately       9:15    p.m.        on     July    7,   2016,       two   individuals

suffered non-life-threatening gunshot wounds to the leg as the

result of a street shooting which took place on Wilkinson Avenue

in Jersey City.            On that date and time, Jersey City Police


2
   We use initials to protect the identity of the juvenile and
minors involved in these proceedings. R. 1:38-3(d).



                                               2                                    A-4098-16T3
Officer     Joseph    Labarbera        was      on    duty     with     another    officer.

While operating an unmarked vehicle, Labarbera observed three

African     American      males       on    bicycles        traveling     northbound         on

Bergen Avenue.        Labarbera lost sight of the cyclists after they

made   a    right    turn      onto    Wilkinson            Avenue.      Seconds      later,

Labarbera heard gun shots.                 Labarbera reported the incident over

his police radio.             The report included his observation of the

three African American males on bicycles turning down Wilkinson

Avenue just prior to the shooting.

       Detective     Teddy     Roque       of   the    Hudson     County      Prosecutor's

Office responded to the report of gunshots fired.                                  While en

route to the scene, Roque passed two African American                                   males

riding     tandem    on   a    bicycle.             After    Rogue    heard    the    report

regarding African American males on bicycles involved in the

shooting, he drove to the area of Garfield Avenue where he again

observed the two males and conducted a stop.

       Labarbera responded to the location of the stop.                                    When

Labarbera arrived, he recognized one of the individuals as A.A.,

a juvenile whom he had arrested on prior occasions for curfew

violations.          Labarbera        also      identified       A.A.    and    the     other

juvenile     as   two     of   the     three        cyclists     he     observed      in    the

Wilkinson Avenue location just prior to the shooting.




                                                3                                    A-4098-16T3
       After they were detained, police conducted a search of both

A.A.   and    the        other    juvenile       and   the   area     where       Roque   first

observed the juveniles.                Neither search resulted in anything of

evidentiary value.                A more extensive search was conducted by

officers with K-9 units, which recovered shell casings and a

projectile in the area where the shooting occurred.3                                 A.A. was

taken into custody, transported to the juvenile detention center

and placed in a holding cell.

       On    October       27,    2016,     the      court   held     a    N.J.R.E.       104(c)

hearing on the State's motion to admit statements made by A.A.

to his mother while being held at the juvenile detention center.

During      the    hearing,        Jersey    City      Detective         Joseph    Chidichimo

testified         that    he     contacted       A.A.'s      mother       relative    to    his

detention.             Upon      the   mother's        arrival      at     what    Chidichimo

described         as     "the     Jersey    City       Police    Department,         juvenile

building," Chidichimo advised her about the incident and A.A's

alleged involvement.              According to Chidichimo, the mother became

very     emotional         and    asked     to       speak   with        A.A.      Chidichimo

permitted A.A. to speak to his mother from a room opposite the




3
   A third suspect was eventually stopped by the police.                              Nothing
of evidentiary value was found on that individual.




                                                 4                                    A-4098-16T3
holding cell.4         Chidichimo stated he was located approximately

ten-to-twelve       feet   away   from     the      holding   cell   and   overheard

A.A.'s mother ask him if he was on Wilkinson Avenue.                              A.A.

responded, "Yes, I was on Wilkinson."                  Chidichimo then overheard

A.A.'s mother ask him, "Why?" to which he responded, "Because

they   jumped     us    last   week."          Chidichimo     acknowledged        that,

although trained to read Miranda warnings prior to questioning a

suspect, he did not read A.A. his warnings as he originally

intended prior to overhearing the statement.5

       At   the   conclusion      of   the     hearing,   the   judge      held   that

A.A.'s statement was admissible.                    The judge reasoned that the

statement     was    not   the    result       of    police   interrogation        and,

therefore, Miranda was not implicated.

       The trial commenced immediately following the decision on

the motion and took place over three days.                    The State's proofs

included the testimony of Labarbera and Rogue, the statement of

A.A. and a surveillance video of the scene.                    The video depicted

three individuals riding bicycles in a single file formation.

The third cyclist pulled what appeared to be a gun from his


4
   Chidichimo testified that "there are two holding cells inside
the main room of the juvenile building."
5
   A.A.'s mother testified at the hearing. She stated that she
did not recall A.A. saying that he was on Wilkinson Avenue or
that he was "jumped" the previous week.



                                           5                                 A-4098-16T3
waist area with his left hand which was followed by flashes of

light.6       At trial, Labarbera and Rogue provided their version of

the events consistent with their N.J.R.E. 104 hearing testimony.

      At the conclusion of the trial, the judge stated that "the

video is one of the strongest items in evidence that satis[fies]

me that those three individuals that were riding together . . .

act[ed] in concert."          The judge added that after careful review

of the video he "saw [] a coordinated movement[] that [was]

almost like a formation for a plan . . . of attack."                    The judge

further held that just before the shots were fired, the cyclists

"accelerate, they put their head down and they keep . . . the

same formation.         One behind the other in this symmetry, [w]hich

indicated to me that this was planned precisely to be able to

carry     out   what    happened."       Further,    the     judge    stated    that

because       the    cyclists    acted       in   concert,     they     acted     as

"accomplices" to one another.                The judge determined that A.A.

was     one     of     the   three   cyclists       based     upon    Labarbera's

identification, and that the statements made by A.A. to his

mother established a motive for the shooting.                  Based upon these

findings, the judge adjudicated A.A. delinquent.

      On appeal, A.A. raises the following points:


6
   We note parenthetically that A.A.'s mother testified that A.A.
is right-handed.



                                         6                                A-4098-16T3
           POINT I

           A.A.'S ADJUDICATIONS OF DELINQUENCY FOR
           COMMITTING AGGRAVATED ASSAULT CANNOT STAND
           BECAUSE THE STATE'S FAILURE TO PROVE THE
           IDENTITY OF THE ALLEGED VICTIMS REQUIRED
           ENTRY OF A JUDGMENT OF ACQUITTAL ON BOTH
           COUNTS OF ATTEMPTED MURDER. (Not Raised
           Below)

           POINT II

           THE TRIAL COURT ERRED IN FAILING TO GRANT
           A.A.'S MOTION FOR JUDGMENT OF ACQUITTAL AS
           TO ALL COUNTS BECAUSE THE EVIDENCE FAILED TO
           ESTABLISH A.A.'S [CULPABILITY] AS EITHER A
           PRINCIPAL OR ACCOMPLICE.      ALTERNATIVELY,
           A.A.'S ADJUDICATIONS OF DELINQUENCY CANNOT
           STAND BECAUSE THE TRIAL COURT'S VERDICT OF
           GUILT   WAS  AGAINST  THE   WEIGHT  OF   THE
           EVIDENCE.

           POINT III

           THE TRIAL COURT ERRED IN ALLOWING THE STATE
           TO INTRODUCE A.A.'S UNWARNED STATEMENTS TO
           HIS MOTHER[] BECAUSE THEY WERE OBTAINED BY
           POLICE   IN   VIOLATION  OF   A.A.'S  FIFTH
           AMENDMENT RIGHTS.

     We confine our decision to the                 argument raised by A.A.

relative to the admission of his statement.7

                                      I.

     The   Fifth   Amendment   of     the        United   States   Constitution

guarantees   all     persons   with        the     privilege   against      self-

incrimination, and applies to the states through the Fourteenth

7
   A.A. also raised arguments in his reply brief which we do not
need to address.     See State v. Lenihan, 219 N.J. 251, 265
(2014).



                                      7                                  A-4098-16T3
Amendment.      U.S. Const. amend. V, XIV; Griffin v. California,

380   U.S.    609,     615    (1965).            This   privilege      against    self-

incrimination "is one of the most important protections of the

criminal law."         State v. Presha, 163 N.J. 304, 312 (2000).                     In

New   Jersey,    there       is   a    common     law   privilege       against   self-

incrimination, which has been codified in statutes and rules of

evidence.     N.J.S.A. 2A:84A-19; N.J.R.E. 503; State v. Reed, 133

N.J. 237, 250 (1993).                 "New Jersey's privilege against self-

incrimination is so venerated and deeply rooted in this state's

common law that it has been deemed unnecessary to include the

privilege in our State Constitution."                       State v. O'Neill, 193

N.J. 148, 176 (2007).                 Significantly, our Supreme Court "has

treated 'our state privilege as though it were of constitutional

magnitude, finding that it offers broader protection than its

Fifth Amendment counterpart.'"               State v. Wright, 444 N.J. Super.

347, 363 (App. Div. 2016) (quoting O'Neill, 193 N.J. at 176-77).

      A confession or an incriminating statement obtained during

a custodial interrogation may not be admitted in evidence unless

a   defendant    has    been      advised        of   his   or   her   constitutional

rights.      Miranda, 384 U.S. at 492.                As custodial interrogations

without    Miranda     warnings        create     a   presumption      of   compulsion,

unwarned     statements       must      be   suppressed      even      when   they   are

otherwise voluntary within the meaning of the Fifth Amendment.




                                             8                                 A-4098-16T3
See State v. Hubbard, 222 N.J. 249, 265-66 (2015) (citations

omitted).      A defendant may waive his or her privilege against

self-incrimination;            however,     that    defendant's     waiver       must    be

voluntary, knowing, and intelligent.                   State v. Hreha, 217 N.J.

368, 382 (2014).             The State bears the burden of proving beyond a

reasonable doubt that a defendant's confession is not resultant

from    actions         by     law    enforcement      officers      that        overbore

defendant's will.             Id. at 383.       The State bears a similar burden

when   a   defendant          challenges    a     statement    procured     by     police

action without the benefit of Miranda warnings.                          See State v.

Clausell, 121 N.J. 298, 352-53 (1990).

                                            II.

       Juvenile defendants, like adults, possess the right to be

free from self-incrimination.                   See N.J.S.A. 2A:4A-40; see also

In re Gault, 387 U.S. 1, 13 (1967) ("[N]either the Fourteenth

Amendment     nor       the    Bill   of    Rights    is     for   adults    alone.").

Juveniles are entitled to Miranda warnings before any statement

is    taken   in    a    custodial      setting      regardless     of   whether        the

delinquency proceedings have begun.                  Presha, 163 N.J. at 312-13.

The    standard     used       when   determining      the    validity      of    Miranda

waivers by adults, the totality of the circumstances, applies to

juveniles.     State ex rel. A.S., 203 N.J. 131, 146 (2010).                         As a




                                             9                                   A-4098-16T3
practical matter, juvenile waivers receive heightened scrutiny

because of their age, experience and level of education.

      Presha has been referenced as New Jersey's "seminal case

addressing the admissibility of juvenile confessions."                       A.S.,

203 N.J. at 146.      In Presha, the Court elaborated on the Miranda

procedures    that    should     be    followed     when      the   police    are

conducting a custodial interrogation of a juvenile.                 163 N.J. at

312-13.    At the forefront of those procedures is the role of a

parent, in which the Court found a "special significance."                    Id.

at 314.    "[I]n the context of a juvenile interrogation[,] . . .

the parent serves as advisor to the juvenile, someone who can

offer a measure of support in the unfamiliar setting of the

police station."      Ibid.    (citing Gallegos v. Colorado, 370 U.S.

49, 54 (1962)).       Moreover, highlighting the "new significance"

of   the   parent's   role     due    to    the   increased    prosecution     of

juveniles, the Court saliently provided:

            When younger offenders are in custody, the
            parent serves as a buffer between the
            juvenile,   who   is    entitled   to  certain
            protections,    and     the    police,   whose
            investigative function brings the officers
            necessarily in conflict with the juvenile's
            legal interests.    Parents are in a position
            to assist juveniles in understanding their
            rights, acting intelligently in waiving
            those rights, and otherwise remaining calm
            in the face of an interrogation.

            [Id. at 315.]




                                       10                               A-4098-16T3
    Specifically, the Court held that the police must use their

best efforts to locate a juvenile's parent or legal guardian

before commencing interrogation, and that the adult's absence

should    be    given     added    weight     when       balancing         all    factors      to

determine       whether    a      waiver     of    rights          and     confession        were

knowing,       intelligent,       and    voluntary       in        the    totality      of    the

circumstances.          Ibid.      The Court stressed in Presha that the

absence    of     the   adult's         presence     was       a    "highly       significant

factor"    in    evaluating        waiver.         Id.    at       315.         Other   factors

include "the suspect's age, education and intelligence, advice

as to constitutional rights, length of detention, whether the

questioning was repeated and prolonged in nature and whether

physical punishment or mental exhaustion was involved" and prior

experience with the criminal justice system.                              Presha, 163 N.J.

at 313 (quoting State v. Miller, 76 N.J. 392, 402 (1978)).

                                           III.

    The State's argument on appeal, as it was before the Family

Part, is that A.A.'s statement was not the product of "police

interrogation" or its functional equivalent.                               For the reasons

that follow, we disagree.

    We     commence       our   discussion        by     noting          that    although     the

constitutional protection afforded by our courts against self-

incrimination is precise in delineated settings, the lack of




                                             11                                         A-4098-16T3
precision in this discrete setting should not compel a nuanced

resolution.        The facile path is to conclude that there was no

police interrogation and thus, no violation of A.A.'s rights.

The essential problem in selecting that path is adherence to a

precept   that     ignores     constitutional     safeguards.         Here,   while

A.A.'s statement was not elicited by express questioning by the

police, the statement was the product of the actions of the

police.

    "The    United     States     Supreme       Court   has    made   clear   that

Miranda warnings are required 'whenever a person in custody is

subjected     to    either     express    questioning     or    its    functional

equivalent.'"       Wright, 444 N.J. Super. at 363-64 (citing Rhode

Island v. Innis, 446 U.S. 291, 300-01 (1980)).                    In Innis, the

United    States     Supreme    Court    noted    that   interrogation        under

Miranda also includes:

            any words or actions on the part of the
            police (other than those normally attendant
            to arrest and custody) that the police
            should know are reasonably likely to elicit
            an incriminating response from the suspect.
            The   later  position  of  this  definition
            focuses primarily upon the perceptions of
            the suspect, rather than the intent of the
            police.

            [446 U.S. at 301.]

    This    court     has    addressed    the    "functional     equivalent"     of

interrogation in pre-Miranda warning cases where police conduct




                                         12                               A-4098-16T3
was   "reasonably         likely    to    elicit    an   incriminating        response."

State    v.    Ward,       240    N.J.    Super.    412,   417    (App.    Div.      1990)

(quoting Innis, 446 U.S. at 303).                   In State v. Brown, we cited

to    Ward    and       noted    that    "Miranda   safeguards      come      into    play

whenever someone is subject either to express questioning 'or

its functional equivalent.'"                   282 N.J. Super. 538, 549 (App.

Div. 1995) (quoting Innis, 446 U.S. at 300-02).

       The defendants in Ward and Brown each gave oral statements

that were not produced by the direct questions of the police.

The statements were made without Miranda warnings and subsequent

to the police providing Ward and Brown with proofs obtained

during the investigation relating to the crimes for which they

were suspects.             In both cases, this court excluded the oral

statements         in    that,    despite      "non-police    interrogation,"          the

process employed to obtain the statement failed to scrupulously

honor defendants' Miranda rights.                    Brown, 282 N.J. Super. at

550-51; Ward, 240 N.J. Super. at 419.8

       We    are    cognizant      of    the    distinction      that   can    be    drawn

between the police participation in the interrogation process in

Ward and Brown and the police participation here.                             Chidichimo


8
   Although we concluded in Brown that defendant's oral statement
was excluded, we concluded that his post-Miranda warnings and
waiver rendered his written statement admissible.       282 N.J.
Super. at 551.



                                               13                               A-4098-16T3
did not present proofs to A.A. that produced the statements.

Rather, he permitted A.A.'s mother to speak to her son while he

listened.     Nonetheless, in consideration of the rights at issue,

we reject that distinction.                 Any pre-Miranda warning process

that    employs     a        parent    as   surrogate         in       an    interrogation

reasonably likely to elicit an incriminatory statement, does not

scrupulously honor a juvenile's rights.                      This is so even if the

process employed by the police may not be intended to elicit the

statement.

       Here, A.A. was subjected to the functional equivalent of

police interrogation.              Chidichimo should have reasonably known

of the propensity for the conversation between A.A. and his

mother to produce an incriminating statement.                            This result was

more   predictive       when       A.A.'s   mother     was    informed        why   he    was

detained.

       Concerning       the    "interrogation"          itself,        we    consider     any

distinction between the police as interrogator or A.A.'s mother

as   interrogator       as     a   distinction        without      a    difference.        In

responding     to       his    mother's      questions        in       the    earshot      of

Chidichimo,       A.A.,        uninformed        of    his    Miranda         rights      and

uncounseled by his parent, was responding to the police.

       Moreover,        to     conclude      that       there          was    no    "police

interrogation" would be in disregard of both common sense and




                                            14                                      A-4098-16T3
the safeguards for juveniles against self-incrimination first

recognized in Gault, 387 U.S. at 13.                      Since Gault, courts have

been    mindful      of   the    personal     characteristics        of    an   accused,

including their youthfulness.                 A.S., 203 N.J. at 149; Presha,

163 N.J. at 315-16 (noting "younger offenders present a special

circumstance       in     the    context     of   police    interrogation.").            It

follows that reviewing courts should be similarly mindful of the

inherent pressure upon a child to respond to the questioning of

a   parent     and      the     corresponding      risk    of    self-incrimination,

especially where the child has not been informed of their right

to remain silent.

       A.S. involved a custodial interrogation of a juvenile in

which the police placed the juvenile's mother in the role of

their   helper       during      the   interrogation       process   by     having     the

adoptive mother read the child her rights.                         203 N.J. at 136.

Thereafter,        the        police    failed      to     correct    the        mother's

misstatements about those rights.                  Ibid.        The child ultimately

made    an   incriminating         statement      used    in    evidence    during     the

delinquency adjudication.              Id. at 136-37.

       Holding the statement was involuntary and thus inadmissible

due    to    the   totality       of   the   circumstances,       Justice       LaVecchia

aptly wrote that "[o]ur purpose in establishing in                              Presha a

preference for parental presence for a child facing questioning




                                             15                                  A-4098-16T3
by police was to assist the child in the exercise of his or her

constitutional rights; it was not to provide the police with an

assistant."      Id. at 137 (emphasis added).9

     Thus,    since      A.A.    was   in   custody      and   subjected   to    the

functional equivalent of police interrogation, he was entitled

to Miranda warnings.            The failure to provide the warnings to

A.A. prior to obtaining the statements requires suppression.

                                        IV.

     In    addition      to    the   concerns    engendered      by   utilizing     a

parent as an assistant in the interrogation, we further note with

disfavor   the    lack    of     privacy      afforded    to   the    parent-child

communication.      In this vein, we are informed by decisions of

other states requiring police to provide a juvenile and a parent

an unsolicited opportunity to confer in private.                      See D.M. v.

State, 949 N.E.2d 327 (Ind. 2011); J.L. v. State, 5 N.E.3d 431,

437 (Ind. Ct. App. 2014) ("Consultation can be meaningful only in


9
   Courts have held in certain circumstances that parents may
serve as surrogates or assistants to an interrogation. However,
in those cases Miranda warnings were given in the presence of
the parent and the child prior to the statements. See State v.
Q.N., 179 N.J. 165, 176-77 (2004) (after the administration of
Miranda warnings in the presence of the mother and the juvenile,
the mother took an "active role in directing her son to 'answer
the officer's questions.'"); see also State v. Belliard, 415
N.J. Super. 51, 80-81 (2010) (after the administration of
Miranda warnings in the presence of the mother and the juvenile,
the mother "unequivocally supported the police officer's
questioning of her son.").



                                         16                                A-4098-16T3
the absence of police pressure. . . . Privacy is essential to a

meaningful consultation."); Commonwealth v. Roe, 329 A.2d 286,

289   (Pa.   1974)   (suppressing   an    incriminating   statement   by   a

juvenile as not knowing or intelligent because the juvenile's

mother was not permitted to speak to him privately and advise him

of his constitutional rights); In re E.T.C., 449 A.2d 937, 940

(Vt. 1982) (suppressing a statement by a juvenile as "[t]here was

no meaningful consultation by the [interested adult] with the

juvenile as [a meaningful consultation] could only occur in the

absence of police pressures.").          Notably, Indiana has codified a

juvenile's right to a "meaningful consultation" with a parent

before their constitutional rights may be waived.           See Ind. Code

§ 31-32-5-1(2)(C).

      The rationale for private communication referenced in other

state's decisions is equally applicable in scenarios such as that

presented in this matter.      Suffice it to state that were there a

similar requirement of a meaningful private conversation with a

parent, there may have been no statements available for use by

the State.     Furthermore, the ability of a parent to engage in a

private communication with a juvenile serves the purpose of the




                                    17                            A-4098-16T3
parent's    presence,    i.e.,      to   provide     the    advice      and   guidance

envisioned by Presha.10

                                           V.

      Having determined that it was erroneous to allow the State

to use A.A.'s statements, we next turn to whether the error

requires a new hearing.         On that score, the judge's consideration

of   and   reliance     upon    A.A.'s     statements       as   proof    of    motive

demonstrates the statements' significant role in the hearing's

outcome.    As such, the error was "clearly capable of producing an

unjust result[.]"        R. 2:10-2; State v. Ross, 218 N.J. 130, 143

(2014).     Therefore, we reverse the adjudication of delinquency

and remand the matter for a new hearing.

      In    closing,    we    add   that   a     contrary     holding    to    the   one

reached today would be in derogation of the safeguards afforded

under the Fifth Amendment and the broader protection afforded

under our state law privilege.             O'Neill, 193 N.J. at 176-77.               In

sum, we are satisfied that the process by which incriminating

statements were secured from A.A. presented an unconstitutional

intrusion    upon     those    afforded         safeguards.      We     are    further

10
   Notwithstanding our reference to other jurisdictions that have
addressed the issue of private communications, we do not suggest
or comment on the wisdom of an amendment to the Juvenile Code.
We leave that determination to the Legislature.       Rather, in
reaching our decision, we have again confirmed a juvenile's right
against self-incrimination and highlighted the critical role of a
parent in the protection of that right.



                                           18                                  A-4098-16T3
satisfied   that   the   excuse    of    that   process   as   "non-police

interrogation" would promote an impermissible practice.

     Reversed and remanded.       We do not retain jurisdiction.




                                    19                            A-4098-16T3
