                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3662-17T1

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

CARLOS M. HERNANDEZ-ESCOBAR,

     Defendant-Respondent.
____________________________________

                   Argued September 26, 2018 – Decided October 15, 2018

                   Before Judges Koblitz and Ostrer.

                   On appeal from an interlocutory order of Superior
                   Court of New Jersey, Law Division, Hunterdon County,
                   Indictment No. 17-10-0396.

                   Jeffrey L. Weinstein, Assistant Prosecutor, argued the
                   cause for appellant (Anthony P. Kearns, III, Hunterdon
                   County Prosecutor, attorney; Jeffrey L. Weinstein, of
                   counsel and on the brief).

                   Steven A. Garner argued the cause for respondent.

PER CURIAM
      On leave granted, the State appeals the trial court's March 12, 2018, order

suppressing a portion of defendant's custodial statement. In the suppressed

excerpt, defendant admitted that he touched the pre-teen sister of his wife

inappropriately. He was later charged with second-degree sexual assault of a

child under thirteen, N.J.S.A. 2C:14-2(b), and third-degree endangering the

welfare of a child through sexual conduct, N.J.S.A. 2C:24-4(a)(1).1 The court

found that police misled defendant to believe "that he would not be deported,

that the state would treat him leniently by allowing him to leave after the

interview, and that he would receive help in the United States through

counseling rather than incarceration."     As a result, defendant's will was

overborne, and his subsequent confession was involuntary and therefore

inadmissible.

      On appeal, the State contends the trial court erred, because the

interrogating police officers made no false statements or promises that induced

defendant to confess. We disagree and affirm, substantially for the reasons set

forth in a cogent and comprehensive written opinion by Judge Angela F.

Borkowski.



1
  Neither the complaint warrant nor indictment is included in the record on
appeal. We rely on the State's recitation of the charges in its brief.
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                                       2
      One of the three interrogating officers, Hunterdon County Prosecutor's

Office Lieutenant Kristen Larsen, testified at the N.J.R.E. 104(c) hearing. Also

introduced into evidence was a video recording of the interrogation, which was

conducted in English and Spanish, and a transcript including a translation of the

Spanish. Defendant speaks English, but Spanish is his first language, and he at

times used the interpretation of a Spanish-speaking officer, Detective Vanessa

Jimenez. She also served as a questioner. 2

      The critical comments by officers occurred after the second break in the

questioning that, in all, lasted about two hours. Up to that point, defendant

insisted that he did not remember inappropriately touching his sister -in-law.

The third officer, a male, had left the room. After Jimenez told defendant that

he had one last chance to "to be honest" with them, Larsen asked, through

Jimenez, what he was "most afraid of." Defendant, a non-U.S. citizen from

Guatemala, said he was afraid of deportation, and being separated from his wife

and children. He mentioned a friend who "had issues with his wife, and he ended

up getting deported."



2
  The State did not include the recording in the appendix on appeal. The English
transcript does not indicate when Jimenez or defendant spoke in Spanish. We
can only surmise that when Jimenez reiterated Larsen's statements, she did so in
Spanish.
                                                                         A-3662-17T1
                                       3
       Speaking without Jimenez's assistance, Larsen distanced herself from

immigration enforcement, responding "I mean, just so you know, I'm not the

deportation police. . . . I'm the detective police, in a way. All right? Not the

deportation police. So I can['t] speak to that at all. Sorry, I can't."3 She then

tried to allay his fears, stating: "But I think what you're worried about are things

that are not . . . I don't want to say that they're not in reality 'cause that's your

reality, Ok?" She added, "But if what you're afraid of is those things, and that's

why you're not telling us the truth, it's really hard to kind of understand this

whole situation. . . . I understand if that's why it's holding you back from talking

to us, from telling us what you remember. I understand that."

       Jimenez then summarized very briefly, "She says that she understands that

. . . we're not, uh . . . the deportation police." Jimenez then added, "We don't

work for Immigration. We, simply, deal with cases that . . . are related to

something sexual. . . . Um, we know that we can't always say what's going to

happen.     You know what I mean?"           Acknowledging defendant's fear of

deportation, Jimenez stated, "That's the fear that you have. But that's not

something that we, uh . . . have, uh . . . here we're not looking to deport you or




3
    We presume "can" is an error, given the sentence that followed.
                                                                             A-3662-17T1
                                         4
anything like that. Ok?" Defendant apparently stated, "Ok" in Spanish, because

Jimenez translated his response.

      Larsen then characterized deportation as the "worst case scenario."

            Ok. So . . . he understands that, Ok. And is that what's
            holding him back from telling us the truth? 'Cause if
            that's what, that's what I'm hearing. It's, I'm hearing
            he's afraid of all these things happening. He's like kind
            of thinking of the worst case scenario. And putting that
            in the way of being able to tell us what happened.

Jimenez then asked defendant, "Is that, is that the reason that you're not being

honest with us?" Defendant responded affirmatively.

      After Larsen reiterated that she was "not the immigration police," Jimenez

tried to convince defendant his situation was different from his friend's. After

first saying that the friend's case was "maybe . . . something totally different,"

which prompted defendant to draw similarities, Jimenez unqualifiedly stated,

"But, like I'm telling you, they are totally different cases." Jimenez then told

defendant that she did not want him to think about deportation because that was

"the extreme" and she "d[id]n't want to go to the extreme."

      Jimenez urged defendant to tell his side of the story, suggesting that he

had made a mistake, or he was under the influence of alcohol. She stated that

the officers did not want to have to report that defendant "doesn't remember."

She again stated that defendant had a "last chance" to be honest. At that point,

                                                                          A-3662-17T1
                                        5
defendant asked whether he was going to be incarcerated, "So I'm not going to

leave free from here?"

      Jimenez deflected, stating that defendant's admissions would "help" him.

"We're not saying that. What we're saying is that in our interview, we want you

to be honest with us. Because that will help you . . . in the future." After stating

that the child would be viewed as a liar if defendant did not confess, Jimenez

assured defendant that if he explained what happened, he could get help for his

problem. "[T]ell us your side of the story. And, and, and to see why that

happened. And maybe give you the help that you need. Because we know that

in this country there are programs to help everybody. And if you, maybe, have

a problem, uh . . . a sexual problem, or something that is uncontrollable, you

could also get help for that." After Jimenez acknowledged defendant was a hard-

working man, and asked him what he remembered, defendant admitted he

touched the child inappropriately, and provided additional details in response to

further questioning.

      The    court     suppressed   those    admissions.       Judge    Borkowski

comprehensively reviewed the governing principles of law. In sum, recognizing

that the State bears the burden to prove beyond a reasonable doubt that

defendant's statements were voluntary, see State v. Galloway, 133 N.J. 631, 654


                                                                            A-3662-17T1
                                         6
(1993), the court appropriately considered the totality of the circumstances. See

State v. Hreha, 217 N.J. 368, 383 (2014); Galloway, 133 N.J. at 654.               In

particular, the court weighed defendant's personal characteristics. See State v.

Knight, 183 N.J. 449, 462-63 (2005). Those included that he was a twenty-nine-

year-old immigrant from Guatemala with a limited education, whose primary

language was Spanish, and who had no prior experience with the criminal justice

system.

      After carefully analyzing Jimenez's and Larsen's various representations

in the aggregate, the court concluded "[T]he detective's implied representations

that defendant would be able to go home, would not have to worry about being

deported, and that he would be able to obtain counseling, taken together, misled

the defendant." As for defendant's fear of deportation, the court acknowledged

that the detectives truthfully informed defendant that they did not work for

immigration.    But, they also characterized deportation as a "worst case

scenario"; told defendant that his friend's case was "totally different"; and stated

that they did not "want to go to the extreme" of deportation. As in State v.

Puryear, 441 N.J. Super. 280 (App. Div. 2015), the court here held that the




                                                                            A-3662-17T1
                                         7
detective's assurance that confessing would help him directly contravened the

Miranda4 warning that anything he said could and would be used against him.

       We deferentially review the trial court's findings on a motion to suppress,

even when it bases them solely on a recording or documentary evidence. State

v. S.S., 229 N.J. 360, 379-80 (2017). We review the court's fact-findings only

to determine if they are supported by sufficient credible evidence in the record.5

Id. at 381. However, we review de novo issues of law. Id. at 380. Applying

that standard of review, we affirm substantially for the reasons stated in Judge

Borkowski's thorough opinion. The record adequately supports the court's fact-

findings, and we discern no error of law.

       We briefly address the State's argument that the court erred because the

detectives did not make a direct false statement or promise. The State contends

the detectives accurately stated they did not enforce immigration law; they



4
    Miranda v. Arizona, 384 U.S. 436 (1966).
5
  Notably, in this case, we could not, even if we so desired, review de novo the
recording, as it was not included in the record before us. However, its omission
also hampers our ability to perform our limited task to ascertain whether the
record provides sufficient support for the court's findings. We are limited to a
review of the cold transcript, which has been likened to a dehydrated piece of
fruit, having "neither the substance nor the flavor" of the real thing. See State
v. Locurto, 157 N.J. 463, 472 (1999).


                                                                          A-3662-17T1
                                        8
truthfully did not want to focus on the "extreme scenario";6 and they never

directly assured defendant he would not be deported. However, the detectives'

statements were not to be viewed in a vacuum.            The trial court properly

considered the detectives' statements in light of the totality of circumstances.

See Hreha, 217 N.J. at 383. The court properly considered the statements from

defendant's point of view. "Whether a statement by the interrogating officer

amounts to a promise must be viewed from the defendant's, not the

[interrogator]'s perspective, applying a reasonableness standard." State v. Pillar,

359 N.J. Super. 249, 272 (App. Div. 2003) (quoting State v. Watford, 261 N.J.

Super. 151, 163 (App. Div. 1992) (Havey, J., concurring)).

        Although the detectives accurately stated they were not immigration

officers, they affirmatively stated that defendant's case was substantively

different from that of his friend who was deported, leading defendant to believe

he would not suffer the same fate as his friend. The detectives stated they did

not "want to go to the extreme" of deportation, as if they had some power over

whether defendant would suffer that extreme consequence. Considering the

context in which the detectives spoke, defendant could reasonably understand

the detectives to assure him that he would not be deported. The record supports


6
    Actually, the detectives referred to the "worst case scenario."
                                                                           A-3662-17T1
                                          9
the court's conclusion that defendant's will was overborne by the detectives'

immigration-related statements, along with the assurances that defendant would

help himself and receive treatment if he confessed.

      Affirmed.




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