                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3008-18T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

J.V.,

     Defendant-Respondent.
___________________________

                    Submitted May 20, 2019 – Decided July 3, 2019

                    Before Judges Messano and Gooden Brown.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Salem County,
                    Indictment No. 18-06-0222.

                    John T. Lenahan, Salem County Prosecutor, attorney
                    for appellant (David M. Galemba, Assistant Prosecutor,
                    of counsel and on the brief).

                    Joseph E. Krakora, Public Defender, attorney for
                    respondent (Emma R. Moore, Assistant Deputy Public
                    Defender, of counsel and on the brief).

PER CURIAM
       By leave granted, the State appeals from the February 5, 2019 Law

Division order, granting defendant's motion to suppress his statement to

detectives as well as his accompanying handwritten letter of apology to the

alleged victim. In his statement, defendant admitted he engaged in sexual

conduct with his live-in girlfriend's underage daughter, Y.N. The State argues

the Miranda1 warnings given to defendant prior to his statement were "adequate"

and "'reasonably conveyed' defendant's rights" "in a language defendant

understood," and the trial court erred in finding to the contrary. The State argues

further that "[b]ecause the court's decision was grounded on a single factor that

was unsupported by sufficient credible evidence, and failed to account for the

totality of [the] circumstances that demonstrated that defendant fully understood

the proceedings and rights he was waiving," it must be reversed. We disagree

and affirm.

       After then thirteen-year-old Y.N. disclosed to law enforcement that she

was sexually assaulted by defendant when she was between eleven and twelve

years old, and defendant gave an incriminating statement to detectives

corroborating the disclosure, a Salem County grand jury indicted defendant,

charging him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                           A-3008-18T4
                                        2
2(a)(1); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); and

second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1). At

the Rule 104(c)2 hearing conducted to adjudicate defendant's pre-trial motion to

suppress his statement, Salem County Prosecutor's Office (SCPO) Detective

Nicholas Efelis testified for the State. Agent Brian Baker of the Federal Bureau

of Investigation (FBI) and defendant testified for the defense.           A Spanish

interpreter was utilized during the entire two-day hearing.

        According to Detective Efelis, on March 26, 2018, after interviewing the

alleged victim and her mother, he and two other officers went to defendant's

place of employment, and asked if defendant would answer some questions

about "an open investigation." Defendant agreed and was transported to the

Penns Grove Police Department in an unmarked police car. Efelis testified that


2
    Rule 104(c) provides in pertinent part:

              Where by virtue of any rule of law a judge is required
              in a criminal action to make a preliminary
              determination as to the admissibility of a statement by
              the defendant, the judge shall hear and determine the
              question of its admissibility out of the presence of the
              jury. In such a hearing the rules of evidence shall apply
              and the burden of persuasion as to the admissibility of
              the statement is on the prosecution.

              [N.J.R.E. 104(c).]


                                                                            A-3008-18T4
                                         3
from the initial encounter, defendant spoke English and gave no indication that

he did not understand the English language, or that he was confused. Further,

during the fifteen to twenty minute ride back to the station, defendant was not

handcuffed or placed under arrest, and there was no discussion about the

allegations.

      Upon arrival, Efelis and Penns Grove Detective Christopher Hemple

conducted a videotaped interview in an interview room containing "three desks,"

"some filing cabinets," and "a couple [of] chairs[.]" The interview began with

the detectives collecting basic pedigree information from defendant, who was

then thirty five years old. Next, Hemple administered the Miranda warnings3 by

reading the rights in English in their entirety directly from a Miranda card, after

which defendant was asked if he understood his rights.4 In response, defendant

nodded his head in the affirmative.


3
   Defendant was advised (1) he had the right to remain silent and refuse to
answer any questions; (2) anything he said could be used in a courtroom; (3) he
had the right to an attorney during questioning; (4) if he could not afford an
attorney, one could be brought in; and (5) he had the right to stop questioning at
any time. See State v. Nyhammer, 197 N.J. 383, 400 (2009) (delineating the
Miranda warnings).
4
  Efelis' phone rang in the interview room while Hemple was reading the
Miranda warnings.



                                                                           A-3008-18T4
                                        4
      Efelis acknowledged that Hemple did not have defendant initial on the

card next to each Miranda warning, and did not have defendant read the

warnings himself. Efelis also acknowledged that it took Hemple thirty seconds

to read the Miranda warnings to defendant. After reading the rights, Hemple

flipped the card over to the waiver side, signed the card himself, handed the card

to defendant, and asked defendant to sign and date the card. 5 Without reviewing

the specific rights affixed to the opposite side of the card, defendant signed the

waiver,6 while the detectives began discussing with him his recent five-day trip

to Puerto Rico, as well as the island's recovery efforts in the wake of the

hurricane.

      Turning to the allegations, when asked whether he knew why he was there,

defendant responded he had "heard a little noise." The detectives then informed

defendant that Y.N. had made some allegations against him, but they wanted to

hear his side of the story. Although defendant eventually admitted having sex



5
   The waiver provision stated in both English and Spanish that defendant
"acknowledge[d] that [he] ha[d] been advised of the constitutional rights found
on the reverse side of th[e] card."
6
  Defendant only had the Miranda card in his possession for a total of sixteen
seconds.



                                                                          A-3008-18T4
                                        5
with another fifteen-year-old girl who had lived with them two years prior, 7 he

initially denied "do[ing] anything sexual[] to [Y.N.]" Instead, he stated he

would only go into Y.N.'s bedroom in the morning, "give her a kiss," and inquire

whether "she need[ed] money."

      Ultimately, after the detectives repeatedly confronted defendant with

Y.N.'s specific allegations that he "touched" and "licked" her breasts and vagina,

and unsuccessfully tried to have sex with her, defendant admitted that it

"happened" but denied that his intention was to hurt Y.N. Defendant explained

that on one occasion when Y.N. "was laying on [him]" and he became aroused,

he stopped himself "[b]ecause . . . [he did not] want to do that to her." According

to defendant, the sexual conduct occurred in 2016 and early 2017, while his

girlfriend was working an overnight shift. He also acknowledged that he told

Y.N. not to tell anyone. Because defendant expressed remorse for what had

happened, at the detectives' suggestion, after the interview ended at 1:48 p.m.,

defendant wrote a letter in English apologizing to Y.N. 8




7
  According to defendant, when his girlfriend found out, she sent the girl back
to her father in New York.
8
 Defendant's videotaped interview, which was played during the hearing, the
Miranda card, and the apology letter were all admitted into evidence.
                                                                           A-3008-18T4
                                        6
      Efelis testified that during the interview, no promises were made to

defendant, and no force or coercion was used.         Further, defendant never

requested a break and did not appear to be under the influence of drugs or

alcohol.    However, on cross-examination, in response to questions about

defendant's English proficiency, Efelis acknowledged that although defendant's

girlfriend had been interviewed with the aid of a Spanish interpreter, he did not

ask defendant if he wanted a Spanish interpreter, wanted to conduct the

interview in Spanish, or if English was his second language. Additionally, Efelis

did not ask defendant how far he went in school or if he knew how to read or

write in English or Spanish.

      FBI Agent Baker testified that he had contact with defendant in 2016 and

2017 when defendant served as a government witness in a federal case.

According to Baker, although defendant communicated in both English and

Spanish, "Spanish was clearly [defendant's] first language," and a Spanish

interpreter was used during witness preparation and when defendant appeared

in court.

      Through the Spanish interpreter, defendant testified that he was born,

raised, and educated in Puerto Rico. Because all his classes were in Spanish, he

only "learn[ed] English in the streets with friends." He acknowledged that


                                                                         A-3008-18T4
                                       7
although he did "understand English[,]" he had "difficulties with words." When

questioned about the Miranda card, defendant stated he did not know what he

was signing and did not read the card before signing it. Defendant explained he

neither understood his constitutional rights, nor that he was waiving his rights.

Likewise, defendant did not know he could ask for an interpreter, and spoke with

the detectives in English, instead of Spanish, because he did not "think they

[spoke] Spanish" and he wanted to "cooperate with them."

      Defendant said he had never been arrested before. He explained that when

he was a witness in the federal case, they used an interpreter "[b]ecause[] when

[he] was giving [his] statement . . . in English, there [were] a lot of mistakes[.]"

According to defendant, "[he] was confused" during the interview "because [the

detectives] continue[d] asking [him] question[s,] one after another," and

"ask[ed] [him] the same question without [him] having answered the previous

question[.]" He explained that when he admitted "licking" a girl's breasts and

vagina, he was referring to the fifteen-year-old girl who had lived with them two

years prior. Further, defendant stated that on the date of the interview, he had

just returned from Puerto Rico at 5:00 a.m. and went straight to work. In

addition, he had one OxyContin pill before he left Puerto Rico and another




                                                                            A-3008-18T4
                                         8
before work, and the last time he had eaten was around 6:00 or 7:00 p.m. the

previous night.

      In an oral opinion, the motion judge granted defendant's motion to

suppress his statement to police and the apology letter to Y.N. Initially, the

judge acknowledged that the State had the burden "not only to demonstrate that

. . . defendant was informed of his rights, but also that he knowingly,

intelligently, and voluntarily waived those rights prior to making a statement."

The judge continued that "[t]he State ha[d] the burden to prove, beyond a

reasonable doubt, that the waiver was valid, and to determine whether the waiver

was valid, the [c]ourt ha[d] to assess the totality of the circumstances." The

judge posited that defendant "challenge[d] the statement on two grounds, one

that [defendant] did not speak English well enough to understand the questions

being asked of him, or to answer them in a way he intended to. And, two, that

because of his language limitations[,] the Miranda rights were not properly

administered."

      From viewing the videotaped interview, the judge determined that while

"English was not [defendant's] primary language[,]" he "ha[d] good English

language skills[,]" and "seem[ed] to understand what [was] being asked of him."

According to the judge, "[h]e was able to carry on a conversation, sometimes


                                                                        A-3008-18T4
                                       9
semantics were not quite correct, but when he talked about Puerto Rico, his

work, his family, anything of a general nature, he spoke freely and fluently."

Nonetheless, the judge pointed out that defendant testified "he was educated in

Puerto Rico," and "learned English on the streets." The judge also observed that

while his apology letter to Y.N. was "in English" and was "comprehensible," the

letter "d[id] not demonstrate a significant capacity for writing in the English

language" and was comparable to a "junior high school level of writing."

      Given defendant's language limitation, the judge was troubled by the

manner in which Hemple administered the Miranda warnings to him. The judge

explained:

             The Miranda warning card was in the hands of
             Detective Hemple, who, according to the video, was
             sitting maybe three feet . . . maybe a little more, from
             . . . defendant. And, Detective Hemple read the rights
             very quickly.

                    [Defense counsel] calls it seconds. She probably
             is not far off the mark on that.

                   [Defendant] . . . was then shown the back of the
             [Miranda] card where the signature line is, and signed
             it. In the vast majority of cases . . . , when Miranda
             warnings are read, certainly in a case as serious as this,
             one by one the officer reads the right and says, "Do you
             understand?" And, the defendant initials, indicating
             that he understood. That did not happen here.



                                                                          A-3008-18T4
                                        10
                 If it had happened here, . . . defendant would have
           had the card in front of him, and underneath each right
           in English[,] the right written in Spanish appears.

                   So, . . . if Detective Hemple had had the card on
           . . . the table, in front of [defendant], and read to him,
           . . . . defendant would have been able to read along in
           Spanish as to what that right says.

                 ....

                 I note that . . . defendant was in Puerto Rico, came
           home at 5:00 a.m., [and] went directly to work.
           Officers arrived at [his] work, and according to
           Detective Efelis, said, "I[] [am] conducting an
           investigation, we[] [would] like you to answer some
           questions. Do you want to come with us?" And, . . .
           defendant went with them.

                 He was never told, at that point in time, that a
           sexual assault was being investigated. And, . . . [he]
           was never told that he was the target of the
           investigation.

                  He went with the officers to the police station,
           and shortly thereafter, was read the Miranda rights in a
           fashion that I just described. It is clear from the video
           that . . . defendant is being fully cooperative. It[] [is]
           also clear he has no clue what lies ahead, as the
           interrogation proceeds. And, that is often the case.

                 But, in those cases, individuals have read and
           understood their Miranda rights and have signed
           indicating that they did.

     While the judge did not "think . . . defendant . . . needed an interpreter

during [the] interview[,]" she believed "the officers could have done a much

                                                                        A-3008-18T4
                                      11
better job of making sure that he did[] [not] need an interpreter" because

defendant "clearly had a heavy accent" and "said he had just come back from

Puerto Rico."    The judge criticized the officers for not inquiring about

defendant's understanding of and proficiency with the English language, and not

"explor[ing] any of his educational background with him[.]" "[I]nstead, . . .

Hemple read the[] rights very quickly, did [not] give . . . defendant an

opportunity to read [it] in English or Spanish, and simply had him sign."

      The judge also addressed defendant's contention "that it got confusing for

him" during the interview, and found "some truth in that [contention]" because

            [t]he video show[ed] . . . that there [were] points where
            . . . defendant is formulating an answer, saying some
            words, and is asked another question with sometimes a
            suggestion as to what . . . defendant should be focusing
            on. Not what his answer should be, but what he should
            be thinking about.

Additionally, the judge considered the totality of the circumstances,

acknowledging that "defendant [was] [thirty-five] years old, employed, [and]

appear[ed] to be of at least average intelligence, if not more." Moreover, "this

was not a lengthy interrogation[,]" lasting about "an hour or so," and defendant

"appeared to be comfortable," and "did[] [not] request anything by way of food,

beverage, a break, an attorney, nothing." Instead, "[h]e just went ahead and



                                                                        A-3008-18T4
                                      12
answered their questions." Further, "[t]he interview itself was conducted fairly

well" by "trained" detectives.

       Nonetheless, because the judge found that "the Miranda rights were not

given the attention . . . they deserved[,]" she determined defendant was not

afforded an opportunity "to understand those rights in a fashion that he deserved

under our laws[.]" According to the judge, "sometimes, there are instances

where an officer is so anxious to get to the substance that they gloss over the

Miranda rights."    The judge found that "that [was] what happened here."

Therefore, the judge concluded that the State failed to establish beyond a

reasonable doubt that defendant "knowingly, intelligently, or voluntarily

waive[d] his Miranda rights."      The judge entered a memorializing order,

suppressing defendant's statement and apology letter, and this appeal followed.

       We begin our analysis with the governing principles. "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, [Rule] 503[9]." State v. S.S., 229 N.J. 360, 381-

82 (2017) (quoting Nyhammer, 197 N.J. at 399).          "The administration of

Miranda warnings ensures that a defendant's right against self-incrimination is


9
    N.J.R.E. 503.
                                                                         A-3008-18T4
                                      13
protected in the inherently coercive atmosphere of custodial interrogation."

State v. A.M., 237 N.J. 384, 397 (2019). Thus, "[t]he essential purpose of

Miranda is to empower a person—subject to custodial interrogation within a

police-dominated atmosphere—with knowledge of his basic constitutional

rights so that he can exercise, according to his free will, the right against self-

incrimination or waive that right and answer questions." Nyhammer, 197 N.J.

at 406.   To that end, a person subject to custodial interrogation "must be

adequately and effectively apprised of his rights." Id. at 400 (quoting Miranda,

384 U.S. at 467).

      Our Court has recognized that "[t]he problem of communicating Miranda

rights to non-English-speaking defendants is important, particularly in a state

with so diverse a population."      State v. Mejia, 141 N.J. 475, 503 (1995)

(superseded by statutory amendment and overruled on separate grounds).

Miranda nonetheless requires "meaningful advice to the unlettered and

unlearned in language which he [or she] can comprehend and on which he [or

she] can knowingly act." State v. Bode, 108 N.J. Super. 363, 367 (App. Div.

1970) (quoting Coyote v. United States, 380 F.2d 305, 308 (10th Cir. 1967)).

Thus, even if a law enforcement officer reads a defendant his or her Miranda

rights, the waiver of those rights is invalid if the defendant did not waive them


                                                                           A-3008-18T4
                                       14
knowingly, intelligently, and voluntarily. Fare v. Michael C., 442 U.S. 707, 724

(1979).

      Before any evidence acquired through a custodial interrogation can be

used against a defendant, "[t]he burden is on the prosecution to demonstrate not

only that the individual was informed of his rights, but also that he has

knowingly, voluntarily, and intelligently waived those rights[.]" Nyhammer,

197 N.J. at 400-01. In turn, the trial court must determine whether the State has

satisfied its heavy burden by proof "beyond a reasonable doubt that the suspect's

waiver [of rights] was knowing, intelligent, and voluntary," State v. Yohnnson,

204 N.J. 43, 59 (2010) (alteration in original) (quoting State v. Presha, 163 N.J.

304, 313 (2000)), based upon an evaluation of the "totality of the

circumstances[.]"     Nyhammer, 197 N.J. at 405.             A "totality-of-the-

circumstances" analysis requires the court to consider such factors as a

defendant'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."

Id. at 402 (quoting Presha, 163 N.J. at 313).

      "Generally, on 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-3008-18T4
                                       15
are supported by sufficient credible evidence in the record.'" S.S., 229 N.J. at

374 (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). Moreover, "a trial

court's factual findings should not be overturned merely because an appellate

court disagrees with the inferences drawn and the evidence accepted by the trial

court or because it would have reached a different conclusion." Ibid. Indeed,

"[a]n appellate court should not disturb a trial court's factual findings unless

those findings are 'so clearly mistaken that the interests of justice demand

intervention and correction.'" Ibid. (quoting Gamble, 218 N.J. at 425).

      In S.S., reversing the standard articulated in State v. Diaz-Bridges, 208

N.J. 544, 565-66 (2011), the Court extended the deferential standard of appellate

review to the trial court's "factual findings based on a video recording or

documentary evidence" in order to ensure that trial courts that "have ongoing

experience and expertise in fulfilling the role of factfinder[,]" remain "'the finder

of the facts,' in the absence of clear error." S.S., 229 N.J. at 380-81 (quoting

Fed. R. Civ. P. 52(a) advisory committee's note to 1985 amendment). The S.S.

Court, however, reaffirmed the principle that "[b]ecause legal issues do not

implicate the fact-finding expertise of the trial courts, appellate courts construe

the Constitution, statutes, and common law 'de novo—with fresh eyes—owing

no deference to the interpretive conclusions' of trial courts, 'unless persuaded by


                                                                             A-3008-18T4
                                        16
their reasoning.'" Id. at 380 (quoting State v. Morrison, 227 N.J. 295, 308

(2016)).

      Applying these principles here, we are satisfied that the judge's factual

findings are supported by sufficient credible evidence in the record. We also

agree with the judge's legal conclusion that the State failed to prove, beyond a

reasonable doubt, that defendant made a knowing and informed decision to

waive his Fifth Amendment right based on the manner in which the detectives

administered the Miranda warnings and procured defendant's waiver. As the

judge pointed out, the detectives failed to ask follow up questions about

defendant's English proficiency despite clear indications that English was not

his first language, failed to explore his educational background, rushed reading

the rights to him, and did not give defendant an opportunity to read the Miranda

card himself, in English or Spanish, before having him sign the waiver.

      Recently, in A.M., the Court stated that in order

            [t]o eliminate questions about a suspect's
            understanding, the entire Miranda form should be read
            aloud to a suspect being interrogated, or the suspect
            should be asked to read the entire form aloud. Where
            that is not done, the suspect should be asked about his
            . . . literacy and educational background.

            [237 N.J. at 400.]



                                                                          A-3008-18T4
                                      17
The judge found that did not occur here. Further, the A.M. Court stressed that

"a knowing, intelligent, and voluntary waiver is determined by the totality of the

circumstances surrounding the custodial interrogation based on the fact -based

assessments of the trial court[,]" id. at 398, which "must be upheld when 'those

findings are supported by sufficient credible evidence in the record.'" Id. at 395

(quoting S.S., 229 N.J. at 374). Here, we are satisfied that the judge's "fact-

based assessments" are adequately "supported by sufficient credible evidence in

the record."

      Affirmed.




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                                       18
