                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0906-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

M.A.P.,1

          Defendant-Appellant.


                   Submitted May 6, 2019 – Decided May 23, 2019

                   Before Judges Messano and Rose.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 16-02-0236.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Jaime Beth Herrera, Assistant Deputy Public
                   Defender, of counsel and on the brief).

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



1
     We use initials to protect the privacy of the victim.
PER CURIAM

      A Hudson County grand jury indicted defendant M.A.P., charging him

with sexually assaulting and endangering the welfare of his paramour's eleven -

year-old daughter, X.M. Following a hearing pursuant to N.J.R.E. 104(c), the

judge granted the State's motion to admit defendant's statement to law

enforcement authorities.   Thereafter, defendant pled guilty to first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a), and the remaining five counts

were dismissed pursuant to a negotiated plea agreement.

     Defendant appeals, raising the following points for our consideration:

            POINT I

            THE TRIAL COURT ERRED IN FAILING TO
            SUPPRESS    [DEFENDANT]'S      STATEMENT
            BECAUSE THE STATE DID NOT MEET ITS
            HEAVY BURDEN OF PROVING BEYOND A
            REASONABLE DOUBT THAT [DEFENDANT]'S
            WAIVER   OF    RIGHTS  WAS      KNOWING,
                                       [2]
            INTELLIGENT AND VOLUNTARY.

            A. The Introductory Remarks Made By The Detective
            during the Interrogation Were Misleading And


2
   Defendant's plea agreement expressly reserved his right to appeal the
admissibility of his confession. See R. 3:9-3(f); see also State v. Knight, 183
N.J. 449, 470 (2005) (citation omitted) ("[A] defendant who pleads guilty is
prohibited from raising, on appeal, the contention that the State violated his
constitutional rights prior to the plea.").


                                                                       A-0906-17T3
                                      2
             Operated To Neutralize The Miranda[3] Warnings That
             Were Read To Defendant Immediately Thereafter.
             (Not Raised Below)

             B. The Detective's Failure to Ascertain [Defendant]'s
             Level of Education and Intelligence Resulted in her
             Administering the Miranda Rights Without Ensuring he
             Understood Them, Thereby Depriving him of the
             Opportunity to Make a Knowing, Intelligent Waiver of
             his Rights.

             C. The State Failed to Establish that the Detective was
             Sufficiently Proficient in Spanish to Both Explain the
             Critically Important Aspects of Miranda, and to
             Ascertain Whether [Defendant] Understood the Rights
             he was Waiving or the Consequences of Doing so, and
             the State Failed to Establish that the Transcript of the
             Interrogation was an Accurate and True Translation
             produced by a Certified Translator.
             (Not Raised Below)

             D. The State Failed to Establish a Knowing and
             Intelligent Waiver when [the Detective] was
             Translating Critically Important Aspects of Miranda to
             [Defendant] but is not an Unbiased Interpreter.
             (Not Raised Below)

             POINT II

             [DEFENDANT]'S GUILTY PLEA MUST BE
             VACATED BECAUSE THE TRIAL COURT
             PROVIDED MISLEADING INFORMATION AND
             EFFECTIVELY DENIED HIM HIS RIGHT TO
             SPEAK WITH AN IMMIGRATION ATTORNEY


3
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                                                        A-0906-17T3
                                        3
            ABOUT THE CONSEQUENCES OF PLEADING
            GUILTY.
            (Not Raised Below) [4]

We reject these arguments and affirm.

                                        I.

                                        A.

      We first consider defendant's overlapping arguments that his Miranda

waiver was not made knowingly, intelligently, and voluntarily. In doing so, we

derive the pertinent facts from the record developed at the motion hearing.

Detective Paola Bolivar of the Hudson County Prosecutor's Office (HCPO) was

the sole witness to testify at the hearing. The State also moved into evidence,

without objection, the waiver form, video-recorded statement, and a transcript

of defendant's statement, which had been translated from Spanish to English.

      After X.M. and her mother reported defendant's sexual misconduct to the

HCPO's Special Victim's Unit (SVU), Bolivar scheduled an interview with

defendant. When he voluntarily responded to the SVU, defendant was not under

arrest.



4
  Defendant's point heading states this argument was "Partially Raised Below."
As defendant's merit brief notes, however, his plea counsel raised issues other
than immigration in support of his motion to vacate his guilty plea. Those issues
are not renewed on appeal.
                                                                         A-0906-17T3
                                        4
      Because defendant indicated he did not speak English, Bolivar conducted

the interview in Spanish. Defendant understood and spoke Spanish, but was

unable to read the language. Bolivar testified that defendant had no probl em

understanding her questions. Defendant immediately acknowledged he was

aware of X.M.'s allegations. During the course of responding to preliminary

questions about his pedigree, defendant could not recall his social security

number, but produced his card.

      Bolivar administered Miranda warnings to defendant by reading each

warning aloud in Spanish from a preprinted waiver of rights form. Defendant

verbally indicated he understood his rights, initialed each right and signed the

form. Defendant admitted he "touched" X.M.'s breast and "private part" with

his mouth "like adults, . . . [b]ut that was the only time in [his] life." The entire

interview was conducted in approximately twenty minutes; defendant was

arrested immediately thereafter.

      At the conclusion of the hearing, the judge rendered a short oral decision,

granting the State's motion. The judge reasoned:

             [Defendant] was not in custody when he first arrived [at
             the SVU], number one; he was advised of his Miranda
             rights; he was advised of his right to remain silent, his
             right to have an attorney. He was given the safeguards
             that the Constitution requires.


                                                                             A-0906-17T3
                                         5
                   Although he said that he could not remember --
             or, [had a] short memory regarding his [s]ocial
             [s]ecurity . . . number . . . he had the wherewithal and
             the understanding to provide the card. So, the [c]ourt
             finds that, although he may not have been able to
             remember the number, which is not unusual, he did
             understand.

                     The [c]ourt finds that when he responded to the
             interview, he acknowledged his rights, said he
             understood his rights, signed the rights and waiver
             statement. And although he could not read or write in
             English or in Spanish, he did initial the various part[s]
             of the waiver statement indicating that he understood.
             The [video] recording of the waiver demonstrates that
             . . . defendant's statement was completely knowing and
             voluntary.

Accordingly, the judge concluded defendant "was not coerced or forced to make

a statement and that he voluntarily, knowingly, and intelligently waived his right

to remain silent."

                                         B.

      We commence our analysis with well-established legal principles,

recognizing we review the trial court's evidential ruling under an abuse of

discretion standard. See Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008); see also

State v. Gore, 205 N.J. 363, 382 (2011). After a testimonial hearing, we "defer

to the trial court's factual findings because the trial court has the 'opportunity to




                                                                             A-0906-17T3
                                         6
hear and see the witnesses and to have the "feel" of the case, which a reviewing

court cannot enjoy.'" State v. S.S., 229 N.J. 360, 374 (2017) (citation omitted).

      That deference extends to a trial court's determinations based on the

review of a video, like here, because of the court's "experience and expertise in

fulfilling the role of factfinder." Id. at 380. We therefore "should not disturb a

trial court's factual findings unless those findings are 'so clearly mistake n that

the interests of justice demand intervention and correction.'" Id. at 374 (citation

omitted). The trial court's interpretation of the law and "the consequences that

flow from established facts are not entitled to any special deference." State v.

Gamble, 218 N.J. 412, 425 (2014).

      Although a defendant's statement is not excluded as hearsay in a criminal

trial against him, "the admissibility of a defendant's statement which is offered

against the defendant is subject to Rule 104(c)." N.J.R.E. 803(b). "It is the State

that must prove, beyond a reasonable doubt, that a defendant's statement was

voluntary and, if made while in custody, that the defendant knowingly,

voluntarily, and intelligently waived the rights afforded him under Miranda."

Gore, 205 N.J. at 382. In determining whether a Miranda waiver was made

knowingly, intelligently, and voluntarily, courts consider factors such as "the

suspect's age, education and intelligence, advice as to constitutional rights,


                                                                           A-0906-17T3
                                        7
length of detention, whether the questioning was repeated and prolonged in

nature and whether physical punishment or mental exhaustion was involved."

State v. Presha, 163 N.J. 304, 313 (2000) (citation omitted); see also State v.

Nyhammer, 197 N.J. 383, 402 (2009).

      As he did before the trial judge, defendant now claims Bolivar failed to

ascertain his level of education and intelligence prior to questioning him. He

emphasizes his illiteracy, inability to speak English, poor memory, and lack of

familiarity with the criminal justice system should have prompted Bolivar to

ensure he understood his rights and the consequences of a Miranda waiver.

Defendant's arguments are belied by the record:

            [PROSECUTOR]: When you read [defendant] the
            Miranda rights from this preprinted form, did he do or
            say anything that indicated whether or not he
            understood what was happening, what you were reading
            to him?

            [BOLIVAR]: After I read each of the Miranda rights,
            . . . he acknowledged that he understood each of those
            rights.

                  ....

            [PROSECUTOR] And was he asked to sign anything
            to physically indicate that he understood these rights?

                  ....



                                                                       A-0906-17T3
                                       8
            [BOLIVAR] . . . after I read each of the rights and I
            asked him, if having the rights in mind, he was willing
            to speak to me, and he acknowledged that he was, I
            asked him to place . . . his initials next to each of the
            rights.

On cross-examination, Bolivar clarified, "He just said he didn't know how to

read, but he understood everything that I was saying. . . . [When] I read [the

form] to him, . . . he said that he understood what I was reading to him."

      Nonetheless, for the first time on appeal, defendant attacks Bolivar's bias

as the investigating officer and as the "interpreter," and claims the State failed

to establish her proficiency in Spanish. 5 Recently, our Supreme Court addressed

the adequacy of an English to Spanish translation by a prosecutor's office

detective where the defendant was more comfortable speaking in Spanish. State

v. A.M. ___ N.J. ___, ___ (2019) (slip op. at 3).     Like the present case, the

defendant in A.M. was accused of sexually abusing a child relative. Ibid.

      Prior to the interview in A.M., the detective administered Miranda rights

using a Spanish-language form prepared by the prosecutor's office, "pausing

after reading each one to ask [the] defendant in Spanish if he understood." Id.


5
  To support his position, defendant relies on the concurring opinion in State v.
A.M., 452 N.J. Super. 587, 602 (App. Div. 2018) (Fuentes, J., concurring), rev'd,
___ N.J. ___ (2019). Following briefing on appeal, the Court rendered its
decision in A.M. Neither party has submitted a supplemental brief citing the
Court's decision. See R. 2:12-2(b).
                                                                          A-0906-17T3
                                        9
at 4. The defendant verbally affirmed in Spanish each time, and initialed the

form next to each right. Ibid. The detective repeated that process with the

waiver portion of the form. Ibid. The detective remained for the interview to

"translate[] as needed," during which the defendant made an inculpatory

statement. Ibid.

      The Court upheld the trial judge's determination that "the video showed

[the] defendant reviewing the waiver portion of the form, signing his name to

indicate that he read and attested to the waiver portion, appearing alert and

cognizant while the form was explained to him and while he signed it, and

responding to questions."    Id. at 8. That conduct suggested the defendant

understood his rights as well as the waiver. Ibid. Thus, the defendant's signature

on the waiver form "constituted a knowing, intelligent, and voluntary express

waiver." Ibid. The Court elaborated:

            While the better practice is to read the entire Miranda
            rights form aloud to a suspect being interrogated, based
            upon the trial court's factual findings we determine,
            however, the failure of [the detective] to do so here did
            not "improperly shift[] the burden of proof to defendant
            to alert the interrogating officers about any difficulty he
            may be having understanding the ramifications of a
            legal waiver." To 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


                                                                          A-0906-17T3
                                       10
            that is not done, the suspect should be asked about his
            or her literacy and educational background.

            [Ibid. (alteration in original) (emphasis added) (citation
            omitted)].

      Unlike the detective in A.M., here Bolivar did not act as an interpreter;

instead she administered Miranda rights in the language defendant

acknowledged he understood. Indeed, the record is devoid of any indication

defendant failed to understand her, even though the State did not elicit specific

details concerning Bolivar's proficiency in Spanish or that they spoke the same

dialect.

      Moreover, defendant's interview was conducted nearly four years before

the Court rendered its decision in A.M. Nonetheless, Bolivar adhered to the

"better practice" of reading the waiver form aloud to defendant. Ibid. Because

Bolivar employed that practice, and was readily able to determine defendant

understood her questions, it was unnecessary for her to inquire further about his

literacy and educational background. See ibid. As noted by the motion judge,

the video recording of the waiver demonstrated "defendant's statement was

completely knowing and voluntary."          Those findings are supported by

substantial credible evidence in the record. We therefore discern no rea son to

disturb the judge's decision. See S.S., 229 N.J. at 381.


                                                                         A-0906-17T3
                                       11
      Little needs to be said about defendant's newly-minted contention that

Bolivar's introductory comments and pedigree questions nullified the Miranda

warnings, which were administered immediately thereafter.         Even when a

defendant is in custody, police are not required to administer Miranda warnings

before questioning to obtain routine pedigree information. See, e.g., State v.

Melendez, 454 N.J. Super. 445, 457-58 (App. Div. 2018); State v. Mallozzi, 246

N.J. Super. 509, 515 (App. Div. 1991). Considered "ministerial in nature and

beyond the right to remain silent," pedigree information falls outside the scope

of Miranda. State v. M.L., 253 N.J. Super. 13, 21 (App. Div. 1991); Mallozzi,

246 N.J. Super. at 516.

      Notably, each defendant in M.L., Mallozzi, and Melendez had been placed

under arrest before police elicited pedigree information, thereby attenuating

defendant's argument even further. Arguably, as the motion judge recognized,

defendant was not in custody when Bolivar asked pedigree-related questions.

Regardless, "[e]ven unexpected incriminating statements made by in-custody

defendants in response to non-investigative questions by the police without prior

Miranda warnings are admissible."      M.L., 253 N.J. Super. at 21; see also

Mallozzi, 246 N.J. Super. at 516.




                                                                         A-0906-17T3
                                      12
                                          II.

                                          A.

        We turn to defendant's final contention that his guilty plea violated Rule

3:9-2.6 For the first time on appeal, defendant claims the trial court denied his

right to speak with an immigration attorney regarding "all of the potential

immigration consequence[s] of his [guilty] plea . . . not just whether he would

be deported[.]" Defendant's claims are unavailing.

        Pertinent to this appeal, after ascertaining that defendant was not a United

States citizen, the plea judge 7 specifically asked defendant whether he had

spoken with an immigration attorney. After defendant indicated that he had not

done so, his attorney interjected that she had "advised [defendant] as to the


6
    Rule 3:9-2 provides in pertinent part (emphasis added):

              The court, in its discretion, may refuse to accept a plea
              of guilty and shall not accept such plea without first
              questioning the defendant personally, under oath or by
              affirmation, and determining by inquiry of the
              defendant and others, in the court's discretion, that there
              is a factual basis for the plea and that the plea is made
              voluntarily, not as a result of any threats or of any
              promises or inducements not disclosed on the record,
              and with an understanding of the nature of the charge
              and the consequences of the plea.
7
  The plea judge was not the same judge who decided the State's motion to admit
defendant's statement.
                                                                            A-0906-17T3
                                         13
effects of the guilty plea and that he would almost certainly be deported as a

result of this guilty plea." (Emphasis added). The following exchange ensued

between the court and defendant:

            THE COURT: Okay . . . you understand that you face
            deportation as a result of these charges?

            [DEFENDANT]: Yes.

            THE COURT: You understand that it could affect your
            ability to become a U.S. citizen?

            [DEFENDANT]: Whether it would be difficult or –

            THE COURT: Yes. It could affect -- it could prevent
            you from becoming a U.S. citizen.

            [DEFENDANT]: Yes.

            THE COURT: Do you understand that? Okay.

            [DEFENDANT]: Yes.

            THE COURT: And when you are deported if you
            attempt to come back into the country it could affect
            your ability to come back into the country.

            [DEFENDANT]: Yes, I understand that.

            THE COURT: Okay. You understand that you have a
            right to speak with an immigration attorney who can
            give you all the details of what's included with this plea
            agreement but by pleading guilty, without doing so,
            you're waiving your right to speak with an immigration
            attorney, do you understand that?


                                                                         A-0906-17T3
                                       14
            [DEFENDANT]: Yes, I understand.

            THE COURT: And that's what you want to do today?

            [DEFENDANT]: If there's an opportunity to do it then
            I have to do it.

            THE COURT: Okay. . . . I provide you with the
            opportunity to speak with an immigration attorney, but
            we do not pay for the immigration attorney. You're
            represented by the Public Defendant's Office and it's
            been explained that you have no access to an
            immigration attorney or the funds to pay one on your
            own. So your public defender has coordinated with an
            immigration attorney and has provided you with the
            information that she was able to ascertain. So I could
            give you the chance to speak with an immigration
            attorney but if you don't have the money to hire one and
            you don't have the ability to get one, then you wouldn't
            be able to see one because we don't provide that for you.

            [DEFENDANT]: Then I cannot do anything.

            THE COURT: Okay. So you're waiving your right to
            speak with an immigration attorney and accepting the
            information that's been provided by your defense
            attorney?

            [DEFENDANT]: Yes.

After defendant established a factual basis for aggravated sexual assault of

X.M., the judge accepted defendant's guilty plea, finding it was entered "freely

and voluntarily without threat or coercion."




                                                                        A-0906-17T3
                                      15
                                      B.

      "For a plea to be knowing, intelligent and voluntary, the defendant must

understand the nature of the charge and the consequences of the plea." State v.

Johnson, 182 N.J. 232, 236 (2005). Relevant here, a defendant has a right to be

informed about potential immigration consequences of pleading guilty. Padilla

v. Kentucky, 559 U.S. 356, 371 (2010); State v. Nuñez-Valdéz, 200 N.J. 129,

143 (2009).

      In Nuñez-Valdéz, the Court found the defendant demonstrated he received

ineffective assistance of counsel under Sixth Amendment standards when his

first plea counsel had provided false advice assuring him that deportation would

not flow from his guilty plea, and successor counsel compounded that with

affirmatively misleading information concerning the deportation consequences

of his plea of guilty. Id. at 140-43. The Court held that when counsel provides

false or affirmatively misleading advice about the deportation consequences of

a guilty plea, and the defendant demonstrates that he would not have pled guilty

had he been provided with accurate information, an ineffective assistance of

counsel claim has been established. Id. at 143.

      One year later, the United States Supreme Court decided Padilla v.

Kentucky, holding that defense attorneys must advise their clients of potential


                                                                        A-0906-17T3
                                      16
immigration consequences of pleading guilty or risk providing constitutionally

deficient assistance of counsel.      559 U.S. at 371.        The Padilla Court

distinguished cases in which deportation is certain from those in which the

immigration consequences of a plea are not as clear. Specifically, "a criminal

defense attorney need do no more than advise a noncitizen client that pending

criminal charges may carry a risk of adverse immigration consequences. But

when the deportation consequence is truly clear, as it was in th[at] case, the duty

to give correct advice is equally clear." Id. at 369 (footnote omitted).

      Applying the principles of Padilla and Nuñez-Valdéz to the facts of this

case, we find no deficiency in the record. Nuñez-Valdéz proscribed affirmative

misinformation and misleading advice, which is not at issue here. Instead, the

record supports the conclusion that defendant knew with certainty he would be

deported.

      We further reject defendant's argument that the plea judge's use of the

non-mandatory term, "could" in explaining collateral immigration consequences

was inadequate because defendant had "a right to know if his plea completely

foreclosed" United States citizenship or reentry into the country. There is no

obligation in this State that defense counsel or the court apprise defendant with




                                                                           A-0906-17T3
                                       17
complete certainty about collateral immigration consequences. 8           Rather,

defendant was entitled to information regarding potential immigration

consequences of pleading guilty. Padilla, 559 U.S. at 369; see State v. Gaitan,

209 N.J. 339, 363 (2012) (recognizing the same and acknowledging that there is

no expectation that defense counsel "become versed in immigration law in order

to secure a knowing and voluntary plea"). Because defendant was so informed

here, we discern no basis to vacate his guilty plea.

       To the extent not otherwise addressed, defendant's remaining contentions

lack sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e)

(2).

       Affirmed.




8
  Defendant briefly references statutes enacted in other jurisdictions, purporting
to support his position that a court must advise a defendant of all collateral
immigration consequences of a guilty plea. However, at least some of those
statutes only require the judge "to advise a defendant pleading guilty that the
conviction may result in deportation, exclusion from admission to the United
States, or denial of naturalization . . . ." Cal. Penal Code § 1016.5 (Emphasis
added). Such was the procedure employed by the plea judge here. Indeed,
question 17 on the plea form spotlights that inquiry.
                                                                          A-0906-17T3
                                       18
