STATE OF NEW JERSEY v. CHRISTINO AQUINO

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1539-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTINO AQUINO,

Defendant-Appellant.

__________________________________________________

December 27, 2010

 

Submitted July 20, 2010 - Decided

 

Before Judges R. B. Coleman and C. L. Miniman.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-03-1061.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Christino Aquino appeals from a final judgment of conviction of one count of endangering the welfare of a child and one count of criminal sexual contact. He argues that (1) his custodial statement should have been suppressed because the State failed to prove that he voluntarily and knowingly waived his Miranda rights, and (2) that the trial court's consideration of Aquino's demeanor in its findings denied him a fair trial under both the New Jersey and United States Constitutions. Based upon our careful review of the record and applicable law, we are satisfied that neither of the arguments raised by the defendant is sufficiently meritorious to warrant a reversal.

I.

On March 28, 2006, a Camden County Grand Jury returned Indictment No. 07-03-1061 charging defendant with third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4 (count one); fourth-degree criminal sexual conduct, in violation of N.J.S.A. 2C:14-3b (count two); and fourth-degree criminal sexual contact by attempting to have a child touch an intimate part of defendant's body, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3b (count three).

On August 31, 2006, defendant appeared before Judge Louise Direnzo Donaldson, for a Miranda hearing, based on defendant's motion to suppress his post-arrest custodial statement. On September 6, 2006, Judge Donaldson denied the motion and scheduled the matter for trial.

Defendant waived a trial by jury, and on January 23, 2008, defendant appeared before Judge John T. Kelley for a bench trial, at the conclusion of which the court found defendant guilty of count one, endangering the welfare of a child and count two, criminal sexual conduct. The court determined that the State failed to meet its burden of proof as to count three, criminal sexual contact. On May 2, 2008, defendant appeared before Judge Kelley for sentencing. The judge merged count two into count one, gave credit for seven days served, and sentenced defendant to parole supervision for life, pursuant to N.J.S.A. 2C:43-2. All mandatory fees and penalties were imposed. This appeal ensued.1

The relevant facts are as follows: On August 31, 2005, Investigator Janene Bahr of the Camden County Prosecutor's Office, Child Abuse Unit, received an assignment from the Grand Jury Unit directing that she investigate a possible sexual assault of G.F., a young female, age thirteen. That same date, Bahr interviewed G.F's mother and father. Based on the information collected from these interviews, warrants were issued against defendant. G.F.'s father signed the warrants on behalf of his daughter, and on September 3, 2005, the Cherry Hill Police Department arrested defendant and transported him to the Cherry Hill police station, where he was placed in an interview room.

Defendant is blind and speaks Spanish. He does not speak English. Sergeant Aida Marcial of the Camden County Prosecutor's Office, who speaks fluent Spanish, was called by Bahr on the day of defendant's arrest to interpret during questioning. Marcial testified she left her home around 2:30 p.m., arriving at the police station at approximately 3:00 p.m. Aquino had been taken into custody at about 1:30 p.m. and, thus, was in custody without an interpreter for approximately one and one-half hours.

Bahr briefed Marcial on the circumstances of the case, after which Bahr introduced Marcial to defendant. Marcial explained to defendant that she spoke Spanish and intended to interpret the circumstances involving his arrest. She started the conversation by asking preliminary biographical information for around twenty to twenty-five minutes in an un-taped pre-interview. Marcial then presented defendant with the Spanish language Miranda card which she read to him in Spanish line by line and waited for defendant to respond. Marcial testified that for each and every line, defendant responded that he understood. Marcial then inquired whether defendant wished to waive his Miranda rights, and he replied "yes." Marcial explained that since he is blind, she placed his hand on the Miranda card and guided his hand where he needed to sign to waive his rights. Defendant signed the card at 3:25 p.m.

After defendant waived his rights, he and Marcial spoke about the incident before taping. Initially, defendant told Marcial that in August, he played hide-and-go-seek with his girlfriend's niece and his daughter at his home in Cherry Hill. He admitted he hugged G.F., then kissed her. He further admitted that he allowed G.F. to touch his penis and that he touched G.F.'s breast.

Marcial testified that after the initial interview, she explained to defendant that there was a tape recorder to record his statements. Marcial again informed defendant of his Miranda rights and defendant again waived them. Defendant's statement was recorded commencing at 4:18 p.m. and concluding at 4:35 p.m. Afterwards, defendant listened to a portion of the tape to confirm that it contained his words and then he signed the actual tape for identification purposes.

Defendant did not testify during the Miranda hearing, and he did not present any evidence. The motion judge reviewed the evidence presented through the testimony of Marcial, and she denied defendant's motion to suppress. The judge found that defendant "made a statement, I believe, freely, after having been given his appropriate Miranda warnings, and I don't think anything was improperly done. I think the Sergeant [Marcial] followed exactly what she was supposed to do."

At the bench trial on January 23, 2008, during the State's case-in-chief, the State presented testimony from Bahr, Marcial, G.F. and G.F.'s mother, M.M. The State also played the tape recording of defendant's statement for the court. Because the tape recording was almost entirely in Spanish, an English language transcription of the recorded statement was also verified and admitted into evidence.

Defendant's tape recorded post-Miranda statement to Bahr and Marcial disclosed that he was playing hide and seek with his niece and daughter, that he and G.F. bumped into each other and then hugged. He stated they kissed and G.F. put her tongue inside his mouth, that he placed his hand on top of her blouse on her breast, and then underneath her blouse. He went on to disclose that G.F. grabbed his penis inside of his pants with one of her hands. Defendant also revealed that he told G.F. not to tell anybody since "she also took part in it . . . ."

G.F. testified that she was playing hide and seek with her uncle and her cousin, and while her cousin was counting from the kitchen, she went to hide in the cousin's room. G.F. explained that while in the room, it was dark and that defendant "started to do stuff that I didn't know." She said he told her to take her tongue out, and she did; he started touching her breasts; opened his pants and took out his "balls" and told her to touch it. G.F. stated that when defendant stopped what he was doing he told her not to tell anyone.

G.F.'s mother, M.M. testified that in August 2005, she noticed a change in G.F.'s behavior and "started suspecting that something happened, so I asked her what happened, if something happened." According to M.M., her daughter told her that during a game of hide and seek, defendant had her up against the wall, started touching her, and asked her to touch his genitals.

After considering the trial testimony and the recorded and documentary evidence, including the English language transcript of defendant's tape-recorded statement, the trial judge determined that the State had established beyond a reasonable doubt that the victim was under sixteen years of age, defendant knowingly engaged in sexual conduct with the victim, and defendant engaged in this conduct knowing it would impair or debauch her morals. As to count two, the court found that the State met its burden that defendant did touch G.F., G.F. was at least thirteen-years old but less than sixteen, and defendant acted knowingly. The court determined that the State did not meet its burden of proof as to count three, and accordingly, found defendant not guilty on that charge.

Defendant now appeals the determinations made below and raises two points of argument in his appellate brief:

POINT I: THE DEFENDANT'S CUSTODIAL STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE STATE FAILED TO PROVE THAT HE VOLUNTARILY AND KNOWINGLY WAIVED HIS MIRANDA RIGHTS THEREFORE ESTABLISHING THAT HIS STATEMENTS WERE VOLUNTARY. U.S. CONST. AMENDS. V, XIV.

 

POINT II: AS DEFENDANT DID NOT TESTIFY, THE TRIAL JUDGE'S CONSIDERATION OF HIS DEMEANOR, DENIED DEFENDANT A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. (1947), ART. I & 1, 9, 10.

 

We shall consider each argument in turn.

II.

First, we acknowledge the well-settled standards governing the use of statements elicited from persons in custody. Custodial interrogatories by law enforcement officers are deemed inherently coercive, automatically triggering the privilege against self-incrimination and requiring that Miranda warnings be given. Miranda v. Arizona, 384 U.S. 436, 444-45, 467-79, 86 S. Ct. 1602, 1612, 1658-60, 16 L. Ed. 2d 694, 706-07, 719-26 (1966); State v. P.Z., 152 N.J. 86, 102 (1997). For statements made to the police in custodial interrogations to be admissible, the State must prove beyond a reasonable doubt that the defendant waived his right against self-incrimination and that his decision to do so was knowing, intelligent, and voluntary in light of all circumstances. State v. A.G.D., 178 N.J. 56, 67 (2003); State v. Presha, 163 N.J. 304, 313 (2000); State v. Timmendeguas, 161 N.J. 515, 613 (1999), certif. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Reed, 133 N.J. 237, 250-51 (1993). In determining the voluntariness of a defendant's statement, courts consider whether the statement was "'the product of an essentially free and unconstrained choice by its maker,' in which case the statement may be used against the defendant, or whether the defendant's 'will has been overborne and his capacity for self-determination critically impaired.'" P.Z., supra, 152 N.J. at 113 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973)). "This issue can be resolved only after an assessment of the 'totality of the circumstances' surrounding the statement." Ibid. (quoting Arizona v. Fulminate, 499 U.S. 279, 285-86, 111 S. Ct. 1246, 1251-52, 113 L. Ed. 2d 302, 315 (1991)).

Among the factors to consider in determining voluntariness are the suspect's age, education, intelligence, previous encounters with law enforcement, advice received about his or her constitutional rights, the length of detention, the period of time between administration of the warnings and the volunteered statement, and whether the questioning was repeated and prolonged in nature or involved physical or mental abuse.

 

[Timmendequas, supra, 161 N.J. at 614. Accord, State v. Miller, 76 N.J. 392, 402-03 (1978).]

If a defendant "indicates in any manner, at any time . . . during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1612, 1624-30, 16 L. Ed. 2d at 706-07, 720-26. Once a defendant invokes the right to remain silent, the invocation must be "scrupulously honored." Michigan v. Mosely, 423 U.S. 96, 103-04, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975); State v. Hartley, 103 N.J. 252, 260-61 (1986). "Scrupulously honoring" a defendant's right to silence requires a cessation of questioning once the defendant asserts his Fifth Amendment right. State v. Johnson, 120 N.J. 263, 282 (1990) ("Where the invocation of the right to remain silent is followed by no interruption in questioning, and where the interrogation continues as if nothing had happened, the right is not scrupulously honored."); Hartley, supra, 103 N.J. at 287 ("[a]uthorities must cease interrogation of suspect on his request"). If police are unsure whether a defendant is asserting his right to silence, they must either stop the interrogation completely or "ask only questions narrowly directed to determining whether defendant was willing to continue." Johnson, supra, 120 N.J. at 284.

"Law enforcement officials . . . are not obliged to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate questioning." State v. Bey, 112 N.J. 123, 136-37 (1988) (Bey II). However, if a defendant makes an apparently ambiguous statement, the police have an obligation to ask clarifying questions, to resolve the ambiguity. State v. Kennedy, 97 N.J. 278 (1984). A suspect is not required to express a desire to terminate the interrogation "with the utmost of legal precision." State v. Bey, 112 N.J. 45, 65 (1988) (Bey I).

We perform a two-step inquiry to determine the validity of a waiver

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

 

[Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1140, 89 L. Ed. 2d 410, 420 (1986) (citing Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560, 2572 61 L. Ed 2d 197, 213 (1979)).]

 

"A court must carefully review the substance of what was communicated by the police to a defendant, in order to determine whether the alleged waiver was the product of an informed, intelligent and voluntary decision." State v. Elkwisni, 384 N.J. Super. 351, 365 (App. Div.), certif. denied, 187 N.J. 492 (2006).

We review a trial court's findings as to the admissibility of a defendant's confession under the "sufficient credible evidence" standard. State v. Knight, 183 N.J. 449, 468 (2005). Under this standard of review, it is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). We are "not permitted to 'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Id. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1997)). Our review is restricted to assessing "'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" Ibid.

III.

Defendant contends that the motion judge erred by denying his motion to suppress the statements since defendant did not voluntarily and intelligently waive his rights due to his unfamiliarity with police protocol, his disorientation because of his language barrier and his physical disability of being blind. Defendant also argues that the interview with Marcial was coercive since defendant was handcuffed to a bench for an hour and a half without being able to see or understand anyone around him. Based on our view of the record, we perceive no error in the motion judge's decision that defendant's statements to the police, voluntarily and intelligently made, would be admissible at trial.

Specifically, defendant asserts that the following dialogue between himself and Marcial illustrates confusion on defendant's part and an unwillingness to continue speaking with Marcial:

Marcial: Now having been advised of your rights for the second time and understanding them, do you desire to waive your rights and answer questions or talk to us again? To explain?

 

Aquino: No that's all right [sic].

 

Marcial: You don't want to talk to us?

 

Aquino: We already talked.

 

Marcial: Yes we already talked but we are trying to . . . for you to explain this in a recording so that we can be sure of what you said happened . . . is it not true that you said what happened regarding the girl . . . ?

 

Aquino: Yes.

 

Marcial: Okay and it's only to make the statement clear and in your own words . . . is that all right with you? Do you understand what I'm saying?

 

Aquino: Yes.

 

Marcial: Okay do you want to explain to me what happened again one more time in simple words . . . ?

Defendant then immediately reiterated the facts previously told Marcial. The transcript shows, and the motion judge properly concluded, the statements quoted above were reasonably viewed by Marcial as ambiguous, prompting Marcial to seek clarification from defendant. The above exchange occurred after the pre-interview was completed. After Marcial administered the Miranda rights for a second time, contrary to defendant's assertion, he did not express an unwillingness to give a statement, he merely said he had already told what happened. Marcial then explained to defendant that they intended to record his statements. Defendant thereafter willingly agreed and recounted the same facts again.

At the September 6, 2006, Miranda hearing, Marcial testified that when she asked defendant "[n]ow having been advised of your rights for the second time and understanding them, do you desire to waive your rights and answer questions or talk to us again" defendant answered "[n]o, that's all right," which Marcial reasonably did not interpret as reluctance to continue with the interview. Likewise, according to Marcial, defendant's statement during the interview, "we already talked," was not an indicator of reluctance to speak.

Marcial also testified at the motion hearing that the pre-interview was not long, and that there was no indication during the pre-interview that defendant wished to end their conversation. Nor did defendant ever indicate any confusion or a desire to exercise his right to counsel or to have a lawyer present. Marcial confirmed that the tape-recorded statement lasted only nineteen minutes and, during that time, defendant never expressed that he wanted to stop speaking or exercise his right to remain silent.

The Supreme Court in Johnson, supra, 120 N.J. at 284, found that when defendant stated repeatedly "I can't talk about it [the crime]", he invoked his right to remain silent. The facts before this court are distinguishable in that defendant did not, as was true of the defendant in Johnson, make his statement repeatedly. Here, defendant made a single, ambiguous remark. When faced with that ambiguous response, Marcial reacted permissibly, by trying to narrow the question down to determine whether or not defendant was willing to continue.

After reviewing all of the relevant evidence, the motion judge made the following findings:

The defendant was arrested on September 3rd, 2005 at 1:30 p.m. He was taken to the Cherry Hill Police Department where no one at that -- was present at the time who spoke Spanish. So the police department contacted Sergeant Marcial to interpret for them.

 

During this period of time, the defendant had been handcuffed to a chair, left in a room alone. No questions were asked of him about the case until Sergeant Marcial arrived. It is my understanding that he was not given his Miranda warnings obviously since no one could explain them to him in Spanish until she did so.

. . . .

After the defendant is -- signs the Miranda warnings, he is then questioned about the case off tape until approximately 4:18 p.m. The Sergeant re-explained the Miranda -- his Miranda rights at the beginning of the taped statement.

The Sergeant then asks if defendant wants to waive his rights. There is an ambiguous answer by the defendant. The officer -- the Sergeant then explains what she is asking and the defendant responds by making a statement about what occurred.

 

Accordingly, the motion judge concluded that "while the defendant's answer to the first question that I read is ambiguous, the balance of the conversation is not ambiguous. It is clear that the Sergeant is explaining to the defendant what it is that she's asking. He understands, and he goes on to speak to her." Thus, the motion judge "made a determination that Sergeant Marcial followed the rules that are imposed on her when she took [defendant's] statement" and denied defendant's motion to suppress the taped statement as evidence. We are satisfied there is sufficient credible evidence present in the record to uphold these findings.

Further, the totality of the circumstances in the record supports the conclusion that defendant's statements to the police were voluntary and not the product of coercion. At the hearings, Marcial testified that defendant acknowledged the reading of his rights for a second time. Defendant was given water and snacks during the interview, and, according to Marcial, he had a fine interview demeanor. Lastly, Marcial testified that defendant did not appear to have any trouble understanding what she was saying to him. Thus, we reject defendant's argument that his physical state of blindness or lack of knowledge of police protocol precluded him from making a knowing, intelligent and voluntary waiver of Mirandarights. To the contrary, the record reflects that defendant was cooperative and willingly answered Marcial's questions.

IV.

We next address defendant's contention that the trial judge erred by considering defendant's demeanor in his findings of fact. Defendant specifically points to the trial judge's statements during his oral findings. The judge said:

I also had an opportunity to observe the demeanor of the defendant as he sat in court and I observed him when the statements were being made with reference to the incidents that occurred.

 

Based upon my observations, I find the State's witnesses to be credible . . . .

Defendant cites to State v. Gould, 123 N.J. Super. 444 (App. Div.), certif. denied, 64 N.J. 312 (1973), to support his contention that the judge's remark before a jury deprived him of a fair trial. There, we noted that

[d]emeanor becomes an issue for a jury only if a witness takes the stand and testifies before the jury, and may be used by the jurors as one of the tools to test the witness' credibility. There is no known principle of law which permits jurors to judge innocence or guilt in this manner.

 

[Id. at 449.]

 

In Gould, we held it was "clearly improper and legally erroneous" for the prosecutor to argue in summation that the jurors should observe the demeanor of the non-testifying defendant and utilize their "common experiences as mature adults [to] evaluate" whether defendant was a bookmaker. Ibid.

Similarly, in State v. Rivera, 253 N.J. Super. 598, 604-05 (App. Div.) certif. denied, 130 N.J. 12 (1992), abrogated on other grounds, State v. Murphy, 412 N.J. Super. 553, 562-63 (2010), we examined the appropriate restrictions for the admission in evidence of a defendant's non-testimonial demeanor at trial and held that the State should generally not be allowed to remark on it during a trial. There, the assistant prosecutor commented during summation that the defendant cried during the trial. Id.at 601. Although defendant did not testify, the State invited the jury to speculate whether defendant also cried when she sold narcotics to an undercover police officer, the offense for which she was being tried. Ibid. We declined to adopt an absolute rule of prohibition, emphasizing, however, that any comment on the defendant's demeanor must not infringe upon his right not to testify:

We determine that if a defendant attempts to inject his unsworn comments into a trial by word, gesture, display of emotion, or other demeanor, such an affirmative act may fairly be the subject of limited comment noting the fact of the behavior and that the comment or demeanor should not be considered by the jury. There may be no reference to defendant's failure to testify under oath.

[Id. at 604 (citations omitted).]

In Rivera, we found that even if the State's comments were considered to be in error, they were harmless in that they "primarily pointed out the fearful or contrite behavior of defendant in the courtroom, and asked the jury to remember the testimony concerning the self-assured woman who sold drugs to the undercover investigator." Id. at 605.

More recently, in State v. Adames, 409 N.J. Super. 40, 57 (App. Div.), certif. denied, 200 N.J. 504 (2009), we considered a defense allegation that the prosecutor improperly mentioned at trial defendant's demeanor while sitting at the counsel table, and commented on other conduct which occurred outside of the jury's presence. We considered our earlier decision in Rivera and reaffirmed that there must be "some affirmative effort by the non-testifying defendant to influence the jury through words or conduct[]" before prosecutorial comment on a non-testifying defendant's demeanor or conduct at trial is permitted. Id.at 59 (holding that the State is not free to comment on a defendant's nontestimonial behavior or conduct during the proceedings just because defendant's sanity is raised as an issue at trial).

In this instance, we are not concerned with prosecutorial comment upon the demeanor of a non-testifying defendant, but rather with a comment made by the trial judge sitting as the trier of the facts.

We recognized in Gould that "[t]rial judges usually instruct jurors . . . that they should observe the demeanor of all witnesses who testify as an aid in determining whether a specific witness testified truthfully." Gould, supra, 123 N.J. Super. at 449. We also recognized in Adames, supra, 409 N.J. Super. at 60, "the impossibility of eliminating the jury's consideration of a non-testifying defendant's demeanor and behavior during trial," though we stressed that such impossibility must not open the door to improper consideration of a defendant's behavior or demeanor, that is, where it is not an unsworn attempt to influence the trier of the facts. As it is generally improper for the jury to consider a non-testifying defendant's passive demeanor in the courtroom, so also is it improper for the trial judge sitting as the trier of the facts to consider a non-testifying defendant's demeanor unless the defendant "attempts to inject his unsworn comments into a trial by word, gesture, display of emotion, or other demeanor." Rivera, supra, 253 N.J. Super. at 604.

That being said, we note that the judge's challenged comment on defendant's demeanor is non-specific and, in context, it is innocuous. He stated, without elaboration, that he "also had an opportunity to observe the demeanor of the defendant as he sat in court and I observed him when the statements [by the testifying witnesses] were made with reference to the incidents that occurred in 2005." As to those testifying witnesses, the judge's impressions were more clearly related to the testimony and his assessment of each witness's credibility. In order to illustrate the context, we quote at length the challenged remarks:

I've had the opportunity to listen to the witnesses who were brought before the Court regarding the investigation, the testimony of the young lady who was the victim, and the mother of the young lady. I find that the testimony offered by Investigator Bahr and by Sergeant Marcial of the Camden County Prosecutor's Office was credible and competent.

 

I had an opportunity to observe their demeanor. The investigator basically indicated that she became involved with the investigation when the report was made through the Prosecutor's Office of the alleged criminal conduct. Her testimony was brief and was offered as background information primarily.

 

However, it was clear that from the beginning of this incident there was a concern as to the events that occurred in Cherry Hill in August of 2005 that gave rise to the complaint first being made to the -- to the Prosecutor's Office.

 

Sergeant Marcial served as an investigating officer as well as an interpreter, and, in fact, took the statement that has been offered into evidence.

 

I've had an opportunity to, again, judge her demeanor. I had an opportunity to listen to the taped statement. Albeit the statement was given in Spanish, I had the opportunity to listen to the inflections of the voices, to the nuances that appeared in the tape, and the confession, I find, or the statement that was given, I find, was freely given by the defendant, was not coerced, and is admissible with reference to the elements that were contained in that statement.

 

I then had the opportunity to gauge the demeanor and listen to the testimony of [G.F.], a 15-year-old young lady who presents today as being the victim of this incident that occurred in Cherry Hill in the summer of 2005.

 

I find that [G.F.] was over 13 years of age and under 16 years of age when this incident occurred, that she, in fact, was visiting with her cousin. They were playing, and while they were playing, the defendant, [] invited himself into the game and at one -- at some point in time was in a dark room with the young lady.

 

I additionally had an opportunity to judge the credibility and listen to the testimony of the young lady's mother, [M.M.], to whom a complaint was made by the young lady, and, as a result of the complaint being made, reported this matter to the police.

 

I find that the witnesses were credible in the testimony that they offered today and I find based upon the testimony that, in fact, an incident did occur in Cherry Hill. It was initiated by [defendant] which gave rise to the counts in this complaint.

 

I also had an opportunity to observe the demeanor of the defendant as he sat in court and I observed him when the statements were being made with reference to the incidents that occurred in 2005.

 

Based upon my observations, I find the State's witnesses to be credible . . . .

 

Considering the challenged remarks in context, we are fully satisfied that the judge made independent credibility assessments of each of the witnesses who testified and that there is substantial support behind such determinations. To the extent the court considered the demeanor of defendant, it was, at worse, ambiguous, as it is unclear how the judge's observations of the defendant would have led to the conclusion that the State's witnesses were credible. In context, however, we do not perceive that the judge's ambiguous comment about his opportunity to have observed defendant in the courtroom as the other witnesses testified did not have the clear capacity to produce an unjust result.

We do note, that in his tape-recorded statement and in the English language transcription of his statement, defendant admitted he kissed his thirteen-year old niece, G.F., touched her breasts, and he related that the niece grabbed his penis. The victim herself testified at trial to essentially the same events. Thus, to the extent the trial judge did consider defendant's demeanor, it was relevant to a complete evaluation of defendant's tape-recorded statement. For example, the court stated:

[a]lbeit the statement was in Spanish, I had the opportunity to listen to the inflections of the voices, to the nuances that appeared in the tape, and the confession, I find, or the statement that was given, I find, was freely given by the defendant, was not coerced, and is admissible with reference to the elements that were contained in that statement.

 

There was consistent, sufficient evidence to warrant the judge's findings of guilt. Accordingly, we agree with the State's argument that even though the trial judge noted his observation of defendant's demeanor, "there was nothing in the court's ruling or the record overall which indicated that the court equated defendant's demeanor with guilt or innocence."

Moreover, we are satisfied that the finding is not so clearly mistaken or so plainly unwarranted "that the interests of justice demand intervention and correction," to make our own findings and conclusions. State v. Locurto, 157 N.J.463, 471 (1999). As the Court in Locurtowent on to explain:

[I]f the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, . . . then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. While this feeling of "wrongness" is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made. This sense of "wrongness" can arise in numerous ways--from manifest lack of inherently credible evidence to support the finding, obvious overlooking or undervaluation of crucial evidence, a clearly unjust result, and many others.

 

[Id.at 471.]

We have carefully reviewed this record and have determined that the trial judge's conclusions are fully supported by the evidence. Moreover, even though we agree the judge's reference to defendant's demeanor may have been improper, in light of the overwhelming evidence of guilt, this error is considered harmless.

Affirmed.

 

1 The notice of appeal was filed November 19, 2008, along with a certification of an Assistant Deputy Public Defender in support of a motion to appeal nunc pro tunc. The Assistant Deputy Public Defender certified that defendant had made a timely request to appeal and that the failure to meet the forty-five day limit was in no way attributable to defendant.