STATE OF NEW JERSEY v. ISRAEL DAVILA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2018-07T42018-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISRAEL DAVILA a/k/a ISRAEL

DAVILA-PEREZ,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Somerset County,

Indictment No. 03-12-0767.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C. Kazer,

Designated Counsel, on the brief).

Wayne J. Forrest, Somerset County Prosecutor,

attorney for respondent (James L. McConnell,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Following an unsuccessful Jackson-Denno hearing, defendant Israel Davila entered a plea of guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The judge sentenced defendant to parole supervision for life and ordered defendant to undergo drug, alcohol and psychiatric evaluations. In addition, defendant was ordered to pay mandated fines, assessments and penalties. Defendant appeals. We affirm the judgment of conviction but vacate the parole supervision for life and order the imposition of a special sentence of community supervision for life. See State v. Cooke, 345 N.J. Super. 480, 490 (App. Div. 2001), certif. denied, 171 N.J. 340 (2002); State v. Horton, 331 N.J. Super. 92, 102 (App. Div. 2000).

We first note that upon the entry of his plea following the Jackson-Denno hearing, defendant did not condition his plea to preserve his right of appeal. R. 3:9-3(b). "Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea." State v. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997), certif. denied, 189 N.J. 426 (2007)). As such, he cannot challenge the denial of his motion to suppress his confession. Nevertheless, in the interests of justice, we decide the matter on the merits.

The facts attendant to the underlying charge can be summarized by noting that defendant was charged with exposing himself to an eight-year-old girl in June 2002. Subsequently on November 3, 2003, defendant was arrested in the Bronx and interviewed in Spanish, his native language, by Detective Werner Rodas of the Somerset County Prosecutor's Office. Detective Rodas is fluent in Spanish having spoken the language his entire life.

After explaining the charges to defendant, Detective Rodas "covered Miranda" with defendant. According to the Detective, the following dialogue took place:

A. Yes. He immediately once I told him what the charges were, and it was New Jersey, Somerset County, New Jersey, he automatically said it must have been something with Madeline.

Q. "Must have been something with Madeline," is that what you said?

A. Yes.

Q. Okay. And did you have him continue the conversation, or did you stop him?

A. No. I told him that: before we talk, I need to go over your rights with you.

Q. Now, did you know who Madeline was?

A. Yes, I did.

Q. And who was that?

A. That is the victim's mother.

THE INTERPRETER: I am sorry, the Interpreter didn't hear that.

THE WITNESS: That is the victim's mother.

By [ASSISTANT PROSECUTOR]:

Q. You know what? That is much better, if you can move that over there.

A. The victim's mother.

Q. Now I can really hear you. Now, when you advised him of his Miranda, how was how was that given to him? Was that given from your memory, or from a written form of some kind?

A. Actually, I have a written form that I have been utilizing since I have been here at the Prosecutor's Office.

Q. Was that in Spanish or in English?

A. In Spanish.

Q. And was that stated out loud by you?

A. Yes. I read it to him verbatim.

Q. And did you ask him whether or not he understood each right?

A. Yes, I did.

Q. And was that at the beginning of the questions, or after each one?

A. After reading him each question or each number or each right, I asked him if he understood.

Q. And did he indicate that he understood what each right was?

A. Yes.

Q. And how did he give that indication to you?

A. Verbally he told me, "yes, I understand," and also by signing writing the word "si", which is yes in Spanish, and also his initials next to each question.

Q. And was that done again after each Miranda warning was given?

A. Yes, that's correct.

Q. Now, could you please tell us behaviorwise, physically, what you observed about the defendant? Did he appear to be under the influence of anything; drugs, alcohol, anything like that?

A. No.

Q. Did he appear well, first of all, was he cooperative?

A. Yeah, very.

Q. Was he responsive to you?

A. Yes.

Q. Did he appear to understand what you were saying?

A. Yes.

Q. And was he alert?

A. Yes.

Q. What did he appear to be mentally deficient in any way?

A. No.

Q. Did he appear confused or disoriented?

A. No.

Q. Did he evidence any trouble remembering anything during your questioning of him?

A. After Miranda the one thing that I do remember is he had a problem remembering the time frame of when was the last time he was at the residence.

Q. Other than that?

A. No.

The attorney continued, and the detective added:

Q. Now, you indicated that you had used the Spanish form before. Approximately how many times have you used that one while you have been in Somerset County?

A. Over 200 times.

Q. Do you know if it's used by other departments as well as yours?

A. I don't know which departments, but they it has been used in other police departments.

Q. Within the county?

A. Yes.

Q. Now, did he sign that Miranda form?

A. Yes, he did.

Q. Did he sign that in your presence?

A. Yes.

Q. And was he coerced or threatened in any way to sign that form?

A. No.

Q. Did he also sign it in the presence of Detective Lawrence?

A. He did.

The detective noted that defendant marked the form with a "si" after each question and then initialed the answers. In addition to the written form, the interview was taped and transcribed into English by both the detective and a multi-lingual translation service.

Following the administration of the Miranda warning, defendant proceeded to give a statement to Detective Rodas wherein he explained that the victim was jumping up and down on his lap, his zipper became undone, and if she did see his penis, it was the result of an accident.

In response to the State's proffer, defendant presented Dr. Juan Riestra Cortes, a psychiatrist, who evaluated defendant and opined that the Spanish version of the Miranda form was defective and poorly worded, defendant suffered from, among other things, a form of dementia, and it was "impossible" for defendant to have understood the Miranda warnings.

A contrary opinion was offered by Dr. Carmen Natali, a psychiatrist retained by the State, who conceded that defendant suffered from cognitive problems but characterized them as "mild." He opined that defendant understood the warnings and waived them knowingly and intelligently.

In his opinion denying the motion, Judge Edward Coleman indicated that, among other things, he had reviewed the tape of the interview between defendant and Detective Rodas and concluded that defendant did not appear to be confused. He was fully responsive to the Detective's questions and comments. In addition, he was responsive when responding to details about the underlying offense. The judge concluded:

So as I pointed out, I have two psychiatrists who offer opposite opinions as to whether or not the defendant knew and understood his Miranda rights and warnings and was able to waive them, appreciate them, understandingly waive them and agree to speak with the police. I, in my opinion, the best evidence is the comments and the discussion between the Detective and the defendant that was recorded on November the 3rd, and to me its plain that it may be that the defendant has some cognitive functioning problems, but it's clear that he understood exactly what was being said. He was not lured into any admission by the police. He understood what was going on. Even when the officer tried to lure him into apologizing to the little girl for some sexual conduct, he's indicating no, it's not sexual. Because I knocked her on the bed.

So, to me it's a person who is, has a mental ability to function in a normal manner, able to understand what exactly was going on, appreciate it, understands his Miranda warnings, as he indicated to the officer, waived them and agreed to speak with the police. It's apparent from the discussion that the defendant was anxious to explain what happened, that it was a misunderstanding, that he never did anything sexual towards the little girl, and wanted to explain that to the police. Sorry that he pushed her up against the bed and may have knocked her head, but didn't do anything sexual towards this child.

So I'm satisfied the State has proven beyond a reasonable doubt that defendant knew and understood his rights and waived them and agreed to speak with the police. I'm also satisfied that he police acted in an appropriate manner in speaking with the defendant, requesting him to come to the New York headquarters precinct or whatever they call it to speak with them; that after he made those admission to the police, he was placed in custody and charged in New York in addition to fugitive complaints with regard to the same case for sexual conduct or endangering welfare of a child.

On appeal, defendant raises the following issues:

POINT I -THE TRIAL COURT'S RULING ADMITTING THE DEFENDANT'S INCULPATORY STATEMENT INTO EVIDENCE SHOULD BE REVERSED.

(A)

THE DEFENDANT'S COGNITIVE AND MENTAL DEFICITS, IN CONJUNCTION WITH THE POORLY WORDED TRANSLATION OF THE MIRANDA RIGHTS, IMPAIRED THE DEFENDANT'S ABILITY TO MAKE A KNOWING, VOLUNTARY, AND INTELLIGENT WAIVER OF HIS MIRANDA RIGHTS.

(B)

THE RECORD LACKED AN ADEQUATE EVIDENTIAL FOUNDATION FOR THE TRIAL COURT TO HAVE FOUND THAT THE DEFENDANT WAS GIVEN THE INFORMATION REQUIRED BY MIRANDA.

POINT II -THE TRIAL COURT WAS CLEARLY MISTAKEN AND BUSED ITS SENTENCING DISCRETION BY IMPOSING "PAROLE SUPERVISION FOR LIFE" AS A SPECIAL CONDITION OF THE DEFENDANT'S SENTENCE.

(A)

IMPOSITION OF "PAROLE SUPERVISION FOR LIFE" RESULTED IN AN EX POST FACTO VIOLATION AND MUST BE VACATED.

(B)

IMPOSITION OF "PAROLE SUPERVISION FOR LIFE" VIOLATED THE DEFENDANT'S REASONABLE EXPECTATIONS AND MUST BE VACATED.

We have carefully reviewed the record and conclude that Judge Coleman properly considered the proofs before him, concluding that the State had established beyond a reasonable doubt that defendant knowingly and intelligently waived his Miranda rights. As to Point I, we conclude defendant's arguments are without merit. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in Judge Coleman's thoughtful and thorough oral opinion of July 18, 2005.

We have previously indicated that the judge incorrectly applied N.J.S.A. 2C:43-6.4 to defendant by imposing a sentence of parole supervision for life. This statute was amended subsequent to defendant's offense, and the State concedes that the sentence was in error. The proper sentence should be community supervision for life.

We remand this matter to the Law Division for the imposition of that sentence. In all other respects, the judgment of the Law Division is affirmed.

 

Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).

Although at the time of the entry of the plea, reference was made to a second-degree offense, defendant pled guilty and was sentenced to a third-degree offense.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-2018-07T4

RECORD IMPOUNDED

April 7, 2010