                                       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                                 NOT FOR PUBLICATION WITHOUT THE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 us e in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2099-17T1

STATE OF NEW JERSEY,

                    Plaintiff-Respondent,

v.

ROGER DAVILA-IZAGUIRRE,
a/k/a ROGER A. DAVILA,
ROGER DAVILAIZAGYRRIE,
ROGER A. IZAGUIRRE, and
ROGER IZAGYRRIE,

          Defendant-Appellant.
_______________________________

                    Argued telephonically April 28, 2020 –
                    Decided June 12, 2020

                    Before Judges Yannotti, Hoffman and Currier

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 15-03-0145.

                    Susan Lee Romeo, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Susan Lee Romeo, of
                    counsel and on the brief).
            Marc A. Festa, Senior Assistant Prosecutor, argued the
            cause for respondent (Camelia M. Valdes, Passaic
            County Prosecutor, attorney; Marc A. Festa, of counsel
            and on the brief).

PER CURIAM

      In June 2017, a jury found defendant guilty of second-degree sexual

assault, N.J.S.A. 2C:14-2(c)(1) (count two), and acquitted him of first-degree

aggravated sexual assault, N.J.S.A. 2C:14-29(a)(7) (count one). On September

20, 2017, the trial judge sentenced defendant to a seven-year term of

imprisonment with an eighty-five percent period of parole ineligibility, pursuant

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a).

      This appeal followed. Challenging both his conviction and sentence,

defendant presents the following arguments:

            POINT I

                  DEFENDANT'S CONVICTION MUST BE
                  REVERSED     BECAUSE      THE   COURT
                  VIOLATED DEFENDANT'S RIGHT TO
                  COMPULSORY PROCESS AND HIS RIGHT
                  TO PRESENT A COMPLETE DEFENSE
                  WHEN IT MISAPPLIED THE RAPE SHIELD
                  STATUTE, N.J.S.A. 2C:14-7, TO EXCLUDE
                  EVIDENCE     THAT      WOULD     HAVE
                  IMPEACHED J.M.'S TESTIMONY AND
                  ESTABLISHED HER MOTIVE TO LIE.

                        1. The Rule 104 hearing.


                                                                         A-2099-17T1
                                       2
                        2. The Preclusion Of Evidence From
                           Defendant's Wife That Established
                           J.M.'s Motive To Lie And Impeached
                           Her Testimony Violated Defendant's
                           Right To Confrontation And His Right
                           To Present A Complete Defense.

            POINT II

                  DEFENDANT'S CONVICTION MUST BE
                  REVERSED        BECAUSE      THE  POLICE
                  OBTAINED THE WAIVER OF HIS RIGHT
                  AGAINST               SELF-INCRIMINATION
                  WITHOUT INFORMING HIM OF THE
                  CHARGES AGAINST HIM, IN VIOLATION
                  OF THE NEW JERSEY SUPREME COURT'S
                  HOLDING IN STATE V. VINCENTY, 237 N.J.
                  122 (2019) (Not Raised Below).

            POINT III

                  DEFENDANT'S SENTENCE MUST BE
                  REVERSED BECAUSE THE COURT FOUND
                  AGGRAVATING FACTORS THAT WERE
                  NOT SUPPORTED BY THE RECORD,
                  INCLUDING ONE THAT WAS REJECTED BY
                  THE JURY.


Having considered these arguments in light of the record and applicable law, we

affirm defendant's conviction and sentence.

                                       I

      To celebrate his wife's birthday, defendant organized an outing for family

and friends to go to Yankee Stadium for a concert on July 12, 2014. Married

                                                                        A-2099-17T1
                                       3
for thirteen years, defendant and his wife had three children together. A party

bus provided round-trip transportation for the concertgoers.

      Before returning to pick up the concertgoers, the bus picked up five

additional guests in Clifton, including J.M. (Julie),1 a childhood friend of

defendant's wife. According to Julie, "My mother grew up with her family in

the Dominican Republic and our families are very close."        She referred to

defendant's wife as her "best friend." Julie's husband¸ a police officer, did not

attend the celebration because he was assigned to work that evening. Julie and

her husband have three children.

      After the concert, the party bus drove the group around New York City

for several hours. The group brought various alcoholic beverages onto the bus

and everyone spent the evening drinking and dancing. Julie testified she began

drinking Grey Goose vodka and orange juice, and later drank Hennessy cognac.

At one point, Julie danced on the lap of defendant's wife and another partygoer,

referred to as "Gitch." Julie recounted that two other partygoers, "Albert" and

"A.Z.," attempted to grope her, but she "swatted them" away, telling them to

stop. Before returning to defendant's New Jersey home, the party bus stopped



1
   Because of the sexual nature of the crimes, we use initials and a pseudonym
to protect the privacy of the victim. R. 1:38-3(c)(12).
                                                                         A-2099-17T1
                                       4
at McDonald's for food; however, Julie remained on the bus, because she felt

"dizzy."

      At approximately 4:00 a.m., the bus returned to defendant's home, where

the party continued; no additional alcoholic beverages were provided at the

house. Julie testified she "was already . . . spinning" by the time they reached

the house. She texted her husband, informing him that she made it "home." She

testified to having difficulty texting her husband, as her vision remained

impaired from the alcohol she consumed.

      Inside the home, Julie "took a hit of marijuana" and "started to get even

like dizzier," until she fell on the floor. After gathering herself, Julie went to

the bathroom to "throw water in [her] face" and "sober up," by making herself

vomit. She then went out into the T.V. room and sat down on the couch.

      Aside from Julie, the last partygoer left around 6:00 a.m. Defendant and

his wife found Julie sitting on the couch and decided she would sleep there.

Defendant's wife testified she asked Julie if she felt alright, and Julie responded

she was "fine." Defendant and his wife then gave Julie a blanket, closed the

door, and left the room.

      According to Julie, she fell asleep on the couch fully clothed, wearing a

top, pants and flip-flops. While asleep, she felt herself "turn over . . . in slow


                                                                           A-2099-17T1
                                        5
motion," but the room remained quiet. She next felt her legs "go up" and her

"clothes . . . sliding off[.]" Julie did not react or resist, explaining, "The room

was quiet. I had gone to sleep. So, I thought I was dreaming that . . . I'm feeling

things . . . that my body, that I'm moving. There was nothing like – it was quiet,

the room was quiet, so I didn't know that something was happening to me."

      After initially testifying she was unaware of another person's presence,

Julie recalled feeling pain in her rectum, "coming and going," and hearing

defendant's voice whispering, "[Y]eah, yeah, yeah, just like that. Just like you

wanted it." She then described feeling "like [she] had wet [herself]."

      Once she woke up, Julie went to the bathroom; after touching herself, she

noticed blood on her hand and that she only had on her top. This caused Julie

to panic and she tried calling several partygoers around 7:00 a.m.; however, calls

went unanswered. Julie next called her aunt and told her she believed defendant

had raped her. She then called L.L., who also attended the party the night before,

exclaiming that defendant raped her. L.L. drove to defendant's house and took

Julie to a local hospital.

      Julie later told investigating officers she did not call her husband initially,

because "she was afraid to and didn't know what he would think"; in addition,

"she was blaming herself for what had happened." At the hospital, Julie called


                                                                             A-2099-17T1
                                         6
her husband, crying and stating, "I think it was [defendant]." Julie's husband

came to the hospital.

      At the hospital, Julie underwent an examination by Nurse Annette

Casabona, a member of Passaic County's Sexual Assault Response Team; at

trial, she testified as an expert in forensic medical examinations. According to

Nurse Casabona, her examination of Julie revealed four small abrasions around

the anus.   She testified the abrasions were likely "caused by friction" or

"pressure and movement over that area," such that "just the superficial part of

the skin [was] worn away." Nurse Casabona also observed a bruise on the

interior part of Julie's left lower leg and further bruising on her right and left

arms. She did not note any bleeding.

      Nurse Casabona also collected specimen swabs and performed blood and

urine tests. At trial, the parties stipulated that blood and semen samples were

found on Julie's underwear and vaginal, cervical, anal and rectal swabs were

taken. They further stipulated defendant was the source of the DNA found on

Julie's underwear but excluded defendant as a possible contributor to the DNA

collected from the swab of the cervix. The remaining swabs returned "too much

female DNA and not enough male DNA to determine who the male DNA

belonged to."


                                                                          A-2099-17T1
                                        7
       After Nurse Casabona completed her examination, Julie's husband

accompanied her to the Passaic Police Department (PPD). That same day, July

13, 2014, officers arrested defendant at his home and took him to the PPD.

There, defendant agreed to submit to questioning and provided two video-

recorded statements. According to Detective John Rodriguez, before he began

the first interview, defendant appeared coherent and understood everything.

       Once the first recording began, but before defendant gave his first

statement, Detective Rodriguez provided a Miranda2 warning advisory form.

Detective Rodriguez reviewed defendant's Miranda rights and defendant

initialed each line of the form in acknowledgement. At that time, defendant

declined to have his attorney present.

       The interview began with Detective Rodriguez stating, "I'm going to ask

you some personal questions. Sunday is today. File control number 2014-

32289. Sexual assault is the case." Throughout his initial statement, defendant

refused to answer whether he and Julie had sex, repeatedly saying, "I'm not

going to answer it because that's just crazy." Nevertheless, he recounted what

happened at the birthday party the night before and described Julie as

promiscuous and open about her sex life. After Detective Rodriguez questioned


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                       A-2099-17T1
                                         8
defendant about having sex with Julie for a third time, defendant ended the first

recorded statement at 12:20 p.m. by declaring, "I don't want to say anything

else."

         At 1:30 p.m., defendant informed Detective Rodriguez that he wanted to

speak with him again. Detective Rodriguez began the second recorded statement

by showing defendant his previously signed Miranda waiver form; however, he

did not re-read defendant his rights. Defendant then recounted that after he and

his wife left Julie on the couch, they went upstairs to their bedroom and had sex.

Afterwards, defendant went downstairs nude to get water. Defendant explained

Julie woke up and confronted him, naked from the waist down. He alleged she

called him "Gitch" and told him "come here, come here." Defendant tried

identifying himself and brought Julie back to the couch. There, "she got on top

of [him]" and "started riding [him]" until defendant quickly removed her

because he was "shocked." According to defendant, Julie said "this is how I'm

going to do it to you, Gitch. This is what I want to do with you, Gitch."

Detective Rodriguez ended the second recorded statement when defendant's

attorney called.




                                                                          A-2099-17T1
                                        9
      Defendant testified he initially refused to answer Detective Rodriguez's

questions because he "knew [he] had committed adultery" and "was ashamed."

He further stated he was concerned his answers would affect his marriage.

      Before trial, the court held a Rule 104 hearing to address the admissibility

of defendant's recorded statements.     Defendant claimed he was under the

influence of alcohol when he gave the statements; in addition, he argued

Detective Rodriguez reviewed the Miranda waiver form too quickly before

taking the second statement, without defendant clearly declining to have an

attorney present.

      After reviewing video recordings of both statements, the trial judge

rejected defendant's arguments and found both admissible. He concluded that,

despite defendant's admission to consuming alcohol just five to six hours before

the statement, defendant did not appear to be intoxicated. The judge noted

defendant provided coherent answers and Detective Rodriguez did not detect an

odor of alcohol on his breath. Regarding defendant's waiver of his Miranda

rights, the judge found Detective Rodriguez's initial thorough review of the

waiver form continued to provide defendant with adequate warnings for "a

reasonable amount of time[,] in the totality of the circumstances." Lastly, the




                                                                          A-2099-17T1
                                      10
judge observed defendant did not say anything to negate his acquiescence to

proceed without an attorney present.

      On June 17, 2017, defendant's five-day trial commenced. Before the

direct examination of defendant's wife, defense counsel alerted the court of his

intention to question her regarding past conversations in which Julie allegedly

admitted to previous extra-marital affairs. As a result, the court heard the

following colloquy detailing the proffered testimony:

            Q:    Ok. During your years of friendship with [Julie]
                  did you ever talk with her about the topic of
                  sexual relations?

            A:    All the time.

            Q:    More specifically, did the subject of anal sex ever
                  come up?

            A:    Yes.

            Q:    How did it come up?

            A:    She had mentioned before that she had played out
                  her husband a couple of times, and that –

            THE COURT:       She had what?

            A:    She had played out her husband, like had other
                  affairs with different men, and that her husband
                  had forgiven her for those past events, but that
                  the next time that she would ever do such things
                  she would make sure it would be anal sex because
                  her husband would never find out that way.

                                                                        A-2099-17T1
                                       11
                  ....

            Q:    And one last question. Was she concerned about
                  his knowing about any affairs she may have had?

            A:    Yes.

            Q:    How do you know?

            A:    Because she tells me – she told me everything.
                  We were best friends since we were, like one or
                  two years old.

            Q:    Did she tell you what he would do if she had
                  another affair?

            A:    He would leave her and take her kids away.


The State objected to the proffered testimony, arguing it clearly fell within the

purview of New Jersey's Rape Shield Law, N.J.S.A. 2C:14-7, because it

involved the prior sexual conduct of the victim.

      The trial judge concluded the testimony concerning Julie's past statements

allegedly admitting to prior extramarital affairs was subject to the Rape Shield

law. With respect to the claim of defendant's wife that Julie told her that if she

had an affair it would be via anal sex, the judge ruled it admissible, explaining,

"I'm finding that it does go to motive, or it could go to motive. I'm not saying

that I believe that that's exactly what happened. That's for the jury to decide."


                                                                          A-2099-17T1
                                       12
As a result, defendant's wife testified before the jury, "[Julie] said that if she was

ever to play her husband out it would be through anal, because he would never

be able to find out that way."

      On direct examination, defendant's wife testified that after Julie laid down

on the couch, she and her husband went upstairs, where they had sex. She

recounted that defendant then went downstairs to get water and returned in less

than four minutes; however, on cross-examination, she acknowledged she told

the police that she and defendant went upstairs and went to sleep. In addition,

she told the police that defendant was with her in the bedroom the whole time

and that he fell asleep before she did. She also told the police she is a light

sleeper and she did not feel the bed move. She further acknowledged that she

told the police that Julie was very intoxicated and not okay to drive home .

      Defendant then testified, recounting that after returning on the bus from

New York, everyone came to his house to continue the celebration. By about 6

a.m., everyone who attended the celebration had left except for Julie, who

decided to stay because she was too intoxicated to drive. Defendant testified

that he and his wife left Julie in the family room and went to their bedroom on

the second floor, where they had sex. After having sex with his wife, defendant

said he went downstairs naked to get two bottles of water. Defendant claimed


                                                                              A-2099-17T1
                                         13
that Julie approached him, nude from the waist down, told him she wanted to

have anal sex, brought him to the couch, got on top of him, and began riding

him. Defendant stated that, after about four minutes, "I felt disgusted for what

I was doing, I told her to get off, and I took her off of me . . . and put her on the

couch." Defendant testified that he then went upstairs, gave his wife the water,

and laid down in bed.

      After both parties rested, the trial court charged the jury on first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2A(7), based on defendant having

committed "an act of sexual penetration with another person whom the actor

knew or should have known was physically helpless, which rendered the victim

temporarily incapable of understanding the nature of her conduct, including but

not limited to, being incapable of providing consent." The court also charged

the jury on second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), based on

defendant having committed an "act of sexual penetration" employing "physical

force or coercion [but] the victim does not sustain severe personal injury."

Following four days of deliberation, the jury acquitted defendant of first-degree

aggravated sexual assault but found him guilty of second-degree sexual assault.

      Defendant filed a motion for a judgment of acquittal, or in the alternative,

for a new trial. Defendant argued the trial judge should set aside his verdict


                                                                             A-2099-17T1
                                        14
because Julie's testimony corroborated his belief that what happened between

them was consensual; in addition, he contended the jurors entered an improper

compromised verdict, after the trial judge ordered them to continue deliberating

following their report of a deadlock. The judge found no basis to enter a

judgment of acquittal, noting, "I don't recall anything in the evidence that was

untoward with respect to the eventual verdict in this case."

      On his request for a new trial, defendant argued his two recorded

statements should have been suppressed because he was intoxicated, and the

detective failed to give him a breathalyzer test. Moreover, he asserted the Rape

Shield Statute should not have barred his wife from testifying regarding Julie's

numerous affairs because the testimony "is so probative to the defense,

specifically on the issue of consent."

      In sentencing defendant, the trial judge found four aggravating factors and

one mitigating factor. The judge found aggravating factor two, N.J.S.A 2C:44 -

1(a)(2) (the gravity and seriousness of the harm inflicted on the victim) because

at the time of the offense, Julie

             appeared to be intoxicated based on the testimony I
             heard, and therefore I would find that she was
             substantially incapable of exercising normal or mental
             power of resistance . . . I also have to couple that
             with . . . defendant indicat[ing] that she may have


                                                                         A-2099-17T1
                                         15
             thought he was somebody else. It seems to me he may
             have been trying to take advantage of the situation.

      He found aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the risk that

defendant would commit another offense) – despite noting defendant's Avenel

report did not indicate a risk of re-offense – because "he does have a good

number of municipal court offenses . . . but he also has . . . the indictable theft[.]"

      In finding aggravating factor six, N.J.S.A. 2C:44-1(a)(6) (the extent and

seriousness of his record), the judge relied on his findings regarding factor three.

Lastly, he found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the need for

deterrence) because "this is a classic example of what someone should consider

when they drink to excess." The judge only found one mitigating factor, factor

eleven, N.J.S.A. 2C:44-1(b)(11) (the imprisonment of defendant would be an

excessive hardship to his dependents).

      Finding the aggravating factors outweighed the sole mitigating factor, the

trial judge sentenced defendant to a term of seven years, with an eighty-five

percent period of parole ineligibility. The judge also imposed fees, penalties,

and Megan's Law reporting requirements. He denied defendant's motion to stay

his sentence pending appeal.

      This appeal followed.



                                                                               A-2099-17T1
                                         16
                                              II

                                              A.

      Defendant contends he was denied his right to confrontation and a fair

trial when the court excluded the testimony of his wife concerning Julie's alleged

multiple affairs. He argues the purported testimony would have established

Julie's "strong motive to lie, based on a well-grounded fear of losing her

children, and that would have impeached the claims of Julie and her husband

that she had no reason to fear his discovery of her conduct."

      We review a trial court's evidentiary rulings for an abuse of discretion.

State v. McGuire, 419 N.J. Super. 88, 135 (App. Div. 2011). A trial court's

evidentiary rulings should not be disturbed on appeal absent a showing of a clear

abuse of discretion, in other words, a clear error in judgment. State v. J.A.C.,

210 N.J. 281, 295 (2012). In applying this standard, an appellate court should

not substitute its own judgment for that of the trial court, unless "the trial court's

ruling is so wide of the mark that a manifest denial of justice resulted." Ibid.

(quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

      The trial court found the challenged evidence qualified as past sexual

conduct of Julie, and that it was therefore barred by the Rape Shield law. After




                                                                              A-2099-17T1
                                         17
balancing the excluded testimony against defendant's right to confrontation, we

agree.

         New Jersey's Rape Shield Law presumptively prohibits evidence of the

victim's previous "sexual conduct" in prosecutions for certain sexual offenses,

including aggravated sexual assault, sexual assault, and endangering the welfare

of children. N.J.S.A. 2C:14-7(a). The Rape Shield law defines "sexual conduct"

as "any conduct or behavior relating to sexual activities of the victim, including

but not limited to previous or subsequent experience of sexual penetration or

sexual contact, use of contraceptives, sexual activities reflected in gynecological

records, living arrangement and life style." N.J.S.A. 2C:14-7(f). The statute

protects sexual assault victims from excessive cross-examination, guards against

improper use of evidence of a victim's previous sexual experience, and preserves

the integrity of trials. State v. Budis, 125 N.J. 519, 529 (1991). "By ensuring

that juries will not base their verdicts on prejudice against the victim, the statutes

enhance the reliability of the criminal justice system." Ibid.

         The Rape Shield law contains an exception to the statutory exclusion if

"evidence offered by the defendant regarding the sexual conduct of the victim

is relevant and highly material," meets certain other statutory criteria, and has

"probative value" that "substantially outweighs . . . the probability that its


                                                                              A-2099-17T1
                                         18
admission will create undue prejudice, confusion of the issues, or unwarranted

invasion of the privacy of the victim." N.J.S.A. 2C:14-7(a). Under subsections

(c) and (d) of the statute, evidence of past sexual conduct is only relevant if "it

is material to proving the source of semen, pregnancy or disease[,]" N.J.S.A.

2C:14-7(c), or "if it is probative of whether a reasonable person, knowing what

the defendant knew at the time of the alleged offense, would have believed that

the alleged victim freely and affirmatively" consented. N.J.S.A. 2C:14-7(d).

      However, the Rape Shield law's narrow exceptions may not unfairly

restrict defendants' right to confront the witnesses against them, guaranteed by

the United States and New Jersey Constitutions. U.S. Const. amend. VI; N.J.

Const. art. 1, ¶ 10. Therefore, "if evidence is relevant and necessary to a fair

determination of the issues, the admission of the evidence is constitutionally

compelled." State v. Garron, 177 N.J. 147, 171 (2003). Nevertheless, when

such evidence is relevant, the trial court must decide whether the probative value

outweighs the prejudicial effect to the victim. Budis, 125 N.J. at 532. "The

probative value of the prior acts depends on clear proof that they occurred, that

the acts are relevant to a material issue in the case, and that they are necessary

to the defense." Id. at 533.




                                                                           A-2099-17T1
                                       19
      In Budis and Garron, our Supreme Court departed from a literal reading

of the Rape Shield law, as stated in J.A.C. The Court noted "the tension between

[a] defendant's right to confrontation and the compulsory process of witnesses,

and the victim's right to be free from an unnecessary invasion of . . . privacy"

under the Rape Shield statue. Garron, 177 N.J. at 153; accord Budis, 125 N.J.

at 531. In response, the Court held that "N.J.S.A. 2C:14-7 should be construed

to permit evidence of a victim's sexual conduct if 'the evidence [is] relevant to

the defense . . . [and] its probative value outweighs its prejudicial effect.'"

J.A.C., 210 N.J. at 298 (quoting Budis, 125 N.J. at 532). In so holding, the Court

departed from the statute's requirement that evidence be "relevant and highly

material," and to have probative value that "substantially outweighs" its

"collateral nature or prejudicial effect." State v. Perry, 225 N.J. 222, 236 (2016).

      "The 'probative value' of evidence is 'its tendency to establish the

proposition that it is offered to prove.'" J.A.C., 210 N.J. at 299-300 (quoting

Garron, 177 N.J. at 167 n.2). The probative value of sexual conduct under the

Rape Shield law remains dependent "on clear proof that [it] occurred, that the

acts are relevant to a material issue in the case, and that they are necessary to

the defense." Ibid. (quoting Budis, 125 N.J. at 533). "In short . . . trial courts

are required to carefully weigh the relevance, necessity and impact of evidence


                                                                            A-2099-17T1
                                        20
relating to a victim's sexual history, and to impose case-specific parameters,

where appropriate, to any such evidence admitted." Id. at 300-301.

      Here, defendant argues that the excluded testimony was probative of

whether Julie had a motive to lie about her encounter with him. While the

excluded testimony as alleged is relevant to defendant's theory of the case, he

failed to establish that its probative value outweighed the prejudicial effect.

Defendant's wife did not provide a timeframe for Julie's alleged statements nor

did defendant offer any additional corroborating witnesses.

      Moreover, as argued by the State, defendant failed to show Julie's

concerns were relevant at the time of the alleged assault, or that Julie had a well-

grounded fear that her husband would leave her and take the children if she

cheated on him again. To the contrary, Julie phoned her husband shortly after

realizing the alleged assault occurred; in addition, both she and her husband

testified at trial and were subject to cross-examination. The trial judge also

permitted defendant's wife to testify as to what Julie allegedly told her regarding

anal sex. Therefore, we discern no abuse of discretion in the trial judge's ruling

that barred defendant's wife from disclosing Julie's alleged statements admitting

to prior extramarital affairs.




                                                                            A-2099-17T1
                                        21
                                       B.

      Defendant next contends the trial court was required to suppress his two

recorded statements because the police failed to inform him that he was being

charge with first- and second-degree crimes, contrary to the mandate of State v.

Vincenty, 237 N.J. 122 (2019). We disagree.

      "The issuance of a criminal complaint and arrest warrant by a judge is an

objectively verifiable and distinctive step, a bright line, when the forces of the

state stand arrayed against the individual." State v. Nyhammer, 197 N.J. 383,

404 (2009). In Vincenty, our Supreme Court reaffirmed State v. A.G.D., 178

N.J. 56, 68 (2003), in which it stated, "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." 237 N.J. at 125 (alteration in original) (quoting A.G.D., 178

N.J. at 68).

      In Vincenty, detectives sought to question the defendant regarding an

attempted armed robbery and attempted murder. Id. at 126. The detectives told

the defendant he had been identified from a video recording, photograph and

DNA evidence as one of the two assailants; however, the detectives failed to

inform the defendant that formal charges had already been filed against him. Id.


                                                                          A-2099-17T1
                                       22
at 127. The detectives nevertheless proceeded to review the defendant's rights

and provided him with a Miranda waiver form before recording the

incriminating statements. Ibid.

      The Court held the defendant's initial statements to the detectives should

be suppressed, noting "[i]f suspects are not informed that a criminal complaint

or arrest warrant has been filed against them, they necessarily lack 'critically

important information' and thus 'the State cannot sustain its burden' of proving

a suspect has knowingly and intelligently waived the right against self-

incrimination." Id. at 133-134 (quoting A.G.D., 178 N.J. at 68).

      Defendant's case is distinguishable from Vincenty as no formal charges

were filed against him, eliminating the Court's concerns voiced in that case. The

record reveals that no arrest warrant or criminal complaint was filed against

defendant at the time he waived his Miranda rights and provided the initial

statement. In addition, the detective informed defendant of Julie's allegations

of sexual assault. Therefore, the detective did not mislead defendant and the

trial court did not err in allowing both recorded statements into evidence.

                                      C.

      Defendant further contends the trial court imposed an excessive sentence.

He argues the trial judge based his sentencing decision on findings that were


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contrary to the record, "because the jury rejected them when it acquitted

defendant of aggravated sexual assault." He also argues the judge gave too much

weight to aggravating factor six, N.J.S.A. 2C:44-1(a)(6) (the extent and

seriousness of his record).    Defendant's arguments lack substantive merit;

however, we add the following comments.

      "An appellate court's review of a sentencing court's imposition of sentence

is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318

(2018).    In reviewing a sentence, we must determine whether: "(1) the

sentencing guidelines were violated; (2) the findings 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

'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014)

(second alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65

(1984)).

      We are "bound to affirm a sentence, even if [we] would have arrived at a

different result, as long as the trial court properly identifies and balances

aggravating and mitigating factors that are supported by competent credible

evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing

State v. Jarbath, 114 N.J. 394, 400-01 (1989); Roth, 95 N.J. at 364-65).


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      Defendant contends the judge improperly considered the seriousness of

his crime at sentencing because the jury acquitted him of first-degree aggravated

sexual assault. During sentencing, the trial judge weighed the seriousness of the

harm inflicted on Julie by defendant, explaining:

             because at the time of this offense both – or at least
             [Julie] appeared to be intoxicated based on the
             testimony I heard, and therefore I would find that she
             was substantially incapable of exercising normal or
             mental power of resistance, but I also have to couple
             that with the testimony that I heard, in that the
             defendant indicated that she may have thought he was
             somebody else. It seems to me he may have been trying
             to take advantage of the situation.

      Defendant argues the judge's conclusion, that Julie was intoxicated and

defendant took advantage of her, is not supported by the record because the jury

acquitted defendant of committing "an act of sexual penetration with another

person whom the actor knew or should have known was physically helpless,

which rendered the victim temporarily incapable of understanding the nature of

her conduct[.]" However, the judge's statement at sentencing was supported by

the record and not necessarily inconsistent with the jury's verdict. Furthermore,

it remained relevant to the sexual assault for which the jury ultimately convicted

defendant.




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      The judge also did not abuse his discretion by finding aggravating factor

six applied. Defendant's record included multiple municipal convictions and

one indictable conviction for theft. The judge did not give any additional weight

to this factor.   Under all of the circumstances, the aggravating factors

substantially outweighed the mitigating factors and the trial judge sentenced

defendant accordingly.

      Affirmed.




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