                        NOT FOR PUBLICATION WITHOUT THE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-4451-14T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ADRIAN A. VINCENTY, a/k/a
ADRIAN A. VICENTE and
ADRIAN A. VICENTY,

     Defendant-Appellant.
___________________________

              Submitted September 28, 2016 – Decided August 17, 2017

              Before Judges Fuentes and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Hudson County,
              Indictment No. 12-07-1294.

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

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Erica M. Bertuzzi,
              Assistant Prosecutor, on the brief).

PER CURIAM
     A Hudson County grand jury returned Indictment No. 12-07-1294

charging defendant Adrian A. Vincenty with first degree attempted

murder,    N.J.S.A.    2C:5-1   and    N.J.S.A.     2C:11-3a;    first     degree

robbery, N.J.S.A. 2C:15-1; second degree conspiracy to commit

robbery,    N.J.S.A.   2C:5-2    and   N.J.S.A.     2C:15-1;     second    degree

possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-

4a; and second degree unlawful possession of a firearm, N.J.S.A.

2C:39-5b.

     After the trial court denied his motion to suppress an

inculpatory      statement    obtained     by   police    officers    from     the

Township    of   Weehawken,     defendant       entered   into   a   negotiated

agreement with the State in which he pleaded guilty to first degree

attempted murder in exchange for the State recommending that the

court sentence him to a term of imprisonment not to exceed ten

years, with an eighty-five percent period of parole ineligibility

and five years of parole supervision as mandated by the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.               Under the agreement,

defendant reserved his right to appeal the trial judge's decision

denying his motion to suppress.            On March 20, 2015, a different

trial judge sentenced defendant to a ten-year term of imprisonment,

subject to the parole restrictions required by NERA.

     Defendant now appeals arguing the motion judge erred when she

found defendant knowingly and intelligently waived his rights

                                       2                                  A-4451-14T3
against self-incrimination because the two police interrogators

did   not    inform       him    of   the    charges    filed    against      him    before

interrogating him.              After reviewing the record developed before

the trial court, we affirm.

      Pursuant       to    N.J.R.E.         104(c),    the   trial    court    conducted

evidentiary hearings on September 19 and December 19, 2013, to

determine the admissibility of defendant's inculpatory statement.

The State presented the testimony of Weehawken Detective Jody

Brian Mera, who was one of the officers who interrogated defendant

on March 12, 2012. On that day, Weehawken Detective Thomas Glackin

asked Mera to assist him with an investigation involving the

shooting of a man that occurred nearly a year earlier on March 20,

2011.       Mera explained that Glackin asked for his help because

Glackin "found out through the jail that the actor, Mr. Vincenty,

only spoke Spanish."             Mera testified he "was fluent in Spanish."

      That same day, Glackin and Mera interrogated defendant at the

Garden State Correctional Facility, where defendant was serving a

five-year sentence for an unrelated crime.                      The transcript of the

interrogation shows the detectives read defendant his Miranda1

rights      before    mentioning        anything       about    the   March    20,      2011



1
   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).


                                               3                                    A-4451-14T3
incident.    Defendant acknowledged he understood and signed the

waiver of rights form.2    The Detectives told defendant they were

there to ask him questions about a shooting that occurred at 32nd

Street and Patterson Plank Road, in which the victim was shot in

the back of the head as part of an attempted robbery.

     Mera testified he explained to defendant that "the reason we

were there[.]"    The transcript of the interrogation reflects that

defendant was provided with the following information after he

signed the Miranda waiver form:

            There is a guy, the victim, he is walking that
            night, with a gun, they try to rob him, we
            don't know what exactly happen[ed] but a shot
            was fired and hit him in the back of his head,
            okay? The . . . man . . . did live so there
            are no homicide charges, okay, but there was
            a lot[] of video that night. It looks like
            no one saw it, okay? In the video we saw you
            [meaning defendant] and the other guy.     The
            problem right now [is] that we can't identify
            the other guy, so at this moment on all this
            paper work and video, everything, went to the
            judge, and the judge already charged you. We
            want the other guy, okay? If . . . you want
            to talk to us, talk to us and on top of that
            we also have you on video with a mask, you

2
   Although the transcript of the interrogation is in English,
Glackin interrogated defendant in English and Mera interpreted for
defendant in Spanish.    The transcript was based on the video
recording of the interrogation. Defendant challenged the accuracy
of Mera's interpretation and the audibility of the recording in
what the motion judge characterized as a "pseudo Driver hearing."
This refers to our Supreme Court's seminal decision, State v.
Driver, 38 N.J. 255, 287 (1962), as subsequently modified in State
v. Nantambu, 221 N.J. 390, 411 (2015). Defendant is not appealing
the motion judge's decision in this respect.

                                  4                          A-4451-14T3
         dropped the mask or you threw it away, no
         matter[,] . . . that mask was taken for DNA,
         okay, and you came up positive. Now, you must
         understand how DNA works, one person, okay,
         every person is different, nobody, no, no,
         (Unintelligible) it is not like they tested
         him and confused him with it. Yours is yours,
         mine is mine and his is his. No one else has
         it.    Do you understand?       Okay, it was
         definitely you, that's why we already have the
         charges, okay? Now, if you want to talk to
         us and you want to tell us, look, it was the
         other guy, the other guy told me to . . . take
         the gun. You want to talk to us, . . . while
         we look for the other guy, okay?     We'll do
         what we have to do to, to see, okay?       You
         cooperate with us[.]

         [(Emphasis added).]

    Six transcript pages later, the detectives told defendant the

following specific information about the charges:

         Q1: We have the charges.   We have . . .

         DEFENDANT: Yes but . . .

         Q1: We have the charges. We have to give them
         today. What? Adrian Vicente, right? Vince,
         how, how do you pronounce it?

         DEFENDANT: Vicentin.

         Q1: Vicentin? Okay, look our judge[,] here is
         his mark[.] . . . Okay? The charges, attempted
         homicide, robbery. Okay?

         Q2: Conspiracy to commit robbery.

         . . . .

         DEFENDANT:   I understand, you know?       I, I
         didn't   rob   anyone.     I   don't        know
         (Unintelligible)[.]

                                5                           A-4451-14T3
          Q1: Okay. Well, look. You want to see all
          the charges, here are all the charges[.]

          DEFENDANT:     You know, honestly, I believe
          (Unintelligeble)[.]

          Q2. Remember Papo, remember? "Papi, give me
          all. Do not move, give me all." Remember?

          Q1: Before . . . we go, look, here are your
          copies.   The statement copy, give it to a
          lawyer, whatever you want.  The charges are
          already here.

          [(Emphasis added).]

     After reviewing this evidence and hearing oral argument from

counsel, the judge denied defendant's motion to suppress.                  The

judge orally delivered her reasons from the bench on May 29, 2014.

The motion judge began her analysis by specifically acknowledging

State v. A.G.D., 178 N.J. 56 (2003), in which the Court held:

          Although clearly not limited by age or
          immaturity, defendant was disadvantaged by a
          lack of critically important information. The
          government's failure to inform a suspect that
          a criminal complaint or arrest warrant has
          been filed or issued deprives that person of
          information indispensable to a knowing and
          intelligent waiver of rights.

          [Id. at 68 (emphasis added).]

     Mindful   of   this   legal   standard,   the   motion   judge     found

defendant's reliance on A.G.D. was "misplaced" because:

          It is clear from the testimony and the
          statement itself in the instant case that the
          detectives informed the defendant about the

                                     6                                A-4451-14T3
            nature of the charges before they began
            questioning him about his involvement therein.
            Indeed as soon as he waived his right to an
            attorney[,] the detectives began discussing
            the incident, that is, a shooting that had
            occurred during the course of a robbery . . .
            in Weehawken.

     Against   this   record,   defendant   now   raises   the   following

argument.

            POINT I

            DEFENDANT'S MOTION TO SUPPRESS HIS CONFESSION
            SHOULD HAVE BEEN GRANTED; CONTRARY TO STATE
            V. A.G.D., POLICE HAD HIM WAIVE HIS RIGHTS
            PRIOR TO INFORMING HIM OF THE CHARGES THAT
            WERE FILED AGAINST HIM.

     We review a trial court's factual findings in support of

granting or denying a motion to suppress to determine whether

"those findings are supported by sufficient credible evidence in

the record."    State v. Gamble, 218 N.J. 412, 424 (2014).           Where

the motion judge determined a witness's credibility after hearing

live testimony, as she did here, we are bound to defer to the

judge's factual findings because she had the "'opportunity to hear

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

reviewing court cannot enjoy.'"        State v. Elders, 192 N.J. 224,

244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

And as our Supreme Court recently held, we defer to a trial court's

factual findings even when those findings are "based solely on

video or documentary evidence[.]"      State v. S.S., ___ N.J. ___,___

                                   7                               A-4451-14T3
(2017) (slip op. at 25).        As Justice Albin explained on behalf of

a unanimous Court:

            Our system of justice assigns to the trial
            court the role of factfinder in matters not
            relegated to the jury. Trial judges in our
            Criminal Part routinely hear and decide
            suppression motions in which defendants seek
            to   exclude   evidence   based   on   alleged
            violations of the Fourth and Fifth Amendments
            of   the  United   States   Constitution   and
            corollary provisions of our State Constitution
            and common law. Our trial judges have ongoing
            experience and expertise in fulfilling the
            role of factfinder.

            [Ibid.]

     Guided by these principles, we discern no legal basis to

disturb the motion judge's factual findings.             The judge had the

benefit of hearing and observing Detective Mera's testimony.               She

found his account of how defendant's interrogation was conducted

credible.    The motion judge also viewed the video recording of

defendant's interrogation and read the transcript which contained

the English translation of the questions and answers.             The judge

found   these     documentary      exhibits,   which   were   admitted    into

evidence    at    the   N.J.R.E.   104(c)   hearing,   corroborated    Mera's

testimony.       We are bound to accept the motion judge's assessment

of the credibility of this evidence.           State v. S.S., supra, slip

op. at 25-26.




                                        8                             A-4451-14T3
     The Court in S.S. also addressed and reaffirmed this State's

historical   commitment      to    an     individual's    right   against     self-

incrimination.        "The        right     against     self-incrimination         is

guaranteed by the Fifth Amendment to the United States Constitution

and this state's common law, now embodied in statute, N.J.S.A.

2A:84A-19, and evidence rule, N.J.R.E. 503."                Id. at 28 (quoting

State v. Nyhammer, 197 N.J. 383, 399, cert. denied, 558 U.S. 831,

130 S. Ct. 65, 175 L. Ed. 2d 48 (2009)).                 Most importantly, the

Court reaffirmed the standard that a reviewing court uses to

determine    if   a   defendant      asserted     his    right    against     self-

incrimination.

            Any words or conduct that reasonably appear
            to   be    inconsistent    with    defendant's
            willingness to discuss his case with the
            police are tantamount to an invocation of the
            privilege against self-incrimination.       In
            those circumstances in which the suspect's
            statement is susceptible to two different
            meanings, the interrogating officer must cease
            questioning and "inquire of the suspect as to
            the correct interpretation."       Unless the
            suspect makes clear that he is not invoking
            his right to remain silent, questioning may
            not resume. In other words, if the police are
            uncertain whether a suspect has invoked his
            right to remain silent, two alternatives are
            presented: (1) terminate the interrogation or
            (2) ask only those questions necessary to
            clarify whether the defendant intended to
            invoke his right to silence.

            To invoke the right to remain silent, a
            suspect does not have to follow a prescribed
            script or utter talismanic words.   Suspects

                                           9                                A-4451-14T3
          are mostly lay people unschooled in the law.
          They will often speak in plain language using
          simple words, not in the parlance of a
          constitutional scholar.      So long as an
          interrogating    officer    can    reasonably
          understand the meaning of a suspect's words,
          the suspect's request must be honored.

          [Id. at 29-30 (citations omitted).]

     Here, the record supports the motion judge's finding that

defendant was fully informed of his right to remain silent, waived

that right, and was apprised of the charges pending against him

before he decided to cooperate with the investigation and provide

self-incriminating information.      The record supports the motion

judge's finding that the interrogating officers did not violate

the Court's holding in A.G.D.

     Affirmed.




                                10                          A-4451-14T3
