STATE OF NEW JERSEY v. CESAR ORTIZ

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2410-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CESAR ORTIZ,

Defendant-Appellant.

June 22, 2011

Submitted March 14, 2011 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-06-0720.

YvonneSmith Segars,Public Defender, attorney forappellant (RobertCarter Pierce, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Cesar Ortiz appeals from his conviction entered pursuant to a guilty plea, on a charge of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On October 14, 2009, he was sentenced to eight years, one year less than called for by the plea agreement. The nature of the offense subjected defendant to Megan's Law, N.J.S.A. 2C:7-1 to -19, and parole supervision for life, N.J.S.A. 2C:43-6.4, although defendant is likely to face deportation after the completion of his sentence, as he is an undocumented alien. Appropriate fines and penalties were imposed. We affirm.

Prior to entering his guilty plea, defendant filed a motion to suppress his videotaped inculpatory statement, alleging his Miranda1 rights were abrogated. Because defendant is not an English-speaker, he was interviewed with the assistance of a Spanish-language interpreter. Defendant argues now, as he did before the trial judge, that when asked if he was willing to speak to the authorities, he responded with these words: "if I have to[?]" The State disputes the words were spoken. Because no trial was conducted, the State did not produce a transcript of the recorded interview.

After viewing the videotape, the court found that given "the totality of the circumstances," the State proved "defendant voluntarily, knowingly and intelligently waived his [c]onstitutional rights that were explained to him, and therefore gave . . . a voluntary statement." The court observed the following:

[The interviewing officer, Detective Matthew Gallup of the Passaic County Prosecutor's Office,] went into the interview room unarmed. The interview was taped from beginning to end. No question about it.

And Detective Gallup did not speak word one to this defendant prior to entering the room to begin the interview.

With the help of an interpreter, rights were read to this defendant. The defendant did not appear to be confused. That's evident to anyone who looks at the tape. And in response to a request by the detective, [he] initial[ed] each right after that right had been read to him and interpreted by the interpreter.

As noted a few moments ago, twice during this process, at least in my notes, twice did Detective Gallup emphasize to this defendant his right to stop at any time.

My recollection is he even raised his voice to a higher decibel, not that he was shouting, but to make the point is my interpretation. To make the point that Mr. Ortiz could stop at any time he wanted.

And when that process was completed, each right read and initialed, the defendant was asked will you speak, will you allow me to speak with you. And ultimately, that's what happened. Sign the form if you'll talk with me. And that's what happened, he signed the form.

But again, it was emphasized, you can stop at any time.

And there's no question that once the form and the rights have been executed, there was a change in the arrangement. While the defendant, the interpreter and Detective Gallup were initially seated at a table, they moved away from the table, went from the viewer's standpoint further into the room, toward the back of the room from where the camera was, and on two chairs the defendant and Detective Gallup were basically face[-]to[-]face with the interpreter behind to do interpreting.

Also during the course of the interview, Gallup told defendant he had a machine that gauged the truthfulness of statements made by children under the age of seventeen. The ruse included telling defendant that the victim's claim that defendant sexually touched her more than once was tested and she was 100% truthful.

In his recorded statement, defendant initially admitted putting his index finger in the victim's vagina twice, although he later acknowledged it was on several occasions. He also admitted placing his index finger in the child's buttocks. Defendant said the touching began when the child was ten or eleven and continued for a year or two. It ended because the child, while crying, begged him to stop because she was growing up.

A Gross2 hearing was also conducted, however, as the victim recanted after the initial complaint and intended to testify at trial that she had accused defendant only because she was angry at him for hitting her with a belt. The victim was fourteen at the time of these proceedings.

Defendant's points on appeal are:

POINT I: THE TRIAL COURT ERRED IN DENYING MR. ORTIZ'[S] MOTION TO SUPPRESS HIS INCULPATORY STATEMENT AS MR. ORTIZ EITHER UNEQUIVOCALLY OR EQUIVOCALLY ASSERTED HIS CONSTITUTIONAL RIGHTS, WHICH THE POLICE DID NOT SCRUPULOUSLY HONOR.

POINT II: THE TRIAL COURT ERRED IN DENYING MR. ORTIZ' MOTION TO SUPPRESS HIS INCULPATORY STATEMENT DUE TO THE POLICE FABRICATING EVIDENCE AND MAKING FALSE PROMISES, WHICH INDUCED THE STATEMENT.

POINT III: THE TRIAL COURT ERRED BY NOT RULING ON MR. ORTIZ' APPLICATION TO ADMIT A.A.'S PRIOR FALSE ACCUSATION PRIOR TO THE PLEA CUT-OFF DATE. (Partially raised below).

POINT IV: MR. ORTIZ WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO CALL THE INTERPRETER DURING HIS MOTION TO SUPPRESS AND COUNSEL'S FAILURE TO DEMAND THAT THE TRIAL COURT RULE [ON] HIS MOTION TO ADMIT THE VICTIM'S PRIOR FALSE ACCUSATION PRIOR TO HIS GUILTY PLEA. (Not raised below).

POINT V: THE SENTENCE IMPOSED UPON MR. ORTIZ WAS MANIFESTLY EXCESSIVE.

The State bears the burden of proving beyond a reasonable doubt that defendant's Miranda rights were waived, and his uncounseled statement freely and voluntarily given. In order to accomplish an effective waiver, a defendant must first be fully informed of his rights. State v. Elkwisni, 384 N.J. Super. 351, 366-67 (App. Div. 2006), aff d, 190 N.J. 169 (2007). The totality of the circumstances is then taken into account, including the coerciveness of the interrogation and the likelihood that it inappropriately overcame defendant's freedom of choice and will. See, e.g., State v. Nyhammer, 197 N.J. 383, 402-04, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). In this case, the State was also required to establish the Miranda warnings were appropriately given through an interpreter, so that no question remained as to defendant's understanding because of a language barrier. See State v. Mejia, 141 N.J. 475, 503 (1995), overruled on other grounds, State v. Cooper, 151 N.J. 326, 377-78 (1997).

Although defendant asserts in his first point of error that the words "if I have to" were a question, indicating a desire to exercise his right to remain silent, the court found otherwise. After viewing the videotape of defendant's interview, completed with the assistance of a Spanish-language interpreter, the trial court concluded defendant was repeatedly informed both of his right to remain silent and his right to stop the interview at any time if he wished to do so. We deferentially review the trial judge's factual findings. See State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Although the court did not specifically address the issue as defendant frames it, defendant's characterization of the question is insufficient for us to conclude his will was overborne and his statement was involuntary.

Defendant also urges that his status as a person with a limited education cuts against his ability to understand and knowingly waive his rights. During his plea hearing, however, he acknowledged he could read and write in Spanish. The waiver forms defendant signed were written in that language.

Furthermore, it is not at all clear from our independent review of the record that defendant asked if he had to answer Gallup's questions. On cross-examination, Gallup said he did not hear defendant make that particular statement either when he interviewed defendant or when the tape was replayed in the courtroom. He heard defendant merely say that the officer could ask him questions. As Gallup reminded counsel, he was exaggerated and emphatic in outlining defendant's rights, observing "I was very adamant to let him know he could stop at any time. That was very basic in his direction. And he was signing that form allowing . . . me to ask him questions. [He said "y]ou can ask me questions now, I said okay, and then that's how it was. . . ." Gallup's perception of the video was that defendant said he could ask him questions, not that defendant asked if he had no choice but to answer them.

Since defendant's purported hesitation is not borne out by the videotape, we have no reason to disturb the trial court's conclusion that defendant knowingly, intelligently, and voluntarily waived his right to remain silent. There was nothing ambiguous, as defendant now asserts, in his agreement to make a voluntary statement. Even if defendant said the words he now claims were spoken, it was a fleeting comment, and he was afforded multiple opportunities thereafter to stop the questioning. Yet he continued to speak with Gallup.

Defendant also asserts he asked a question or made a statement the interpreter did not follow up with the detective, but instead answered directly. The interpreter was an employee of the prosecutor's office. But we reiterate that the record does not bear out any confusion on defendant's part given Gallup's repeated assurances that defendant did not have to speak unless he wished to do so, and that he could stop the interview at any time. Even if defendant on one occasion asked a question or made a statement the interpreter answered directly, that is not sufficient for us to conclude defendant's Miranda rights were not scrupulously honored.

Clearly, a defendant's confession must occur voluntarily and not because his will was "overborne." State v. Galloway, 133 N.J. 631, 654 (1993). In this instance, defendant's forty-minute interview by an unarmed, plain-clothes detective, while he was seated at a table not wearing shackles, in the presence of a Spanish-language interpreter, was not a coercive setting. We agree with the trial judge's conclusion that defendant voluntarily spoke to the officer.

As to the claim that Gallup's ruse rendered defendant's statement inadmissible, a statement can be deemed involuntary if it is the product of a gross misrepresentation to the defendant. See, e.g., State v. Pillar, 359 N.J. Super. 249, 265-75 (App. Div.), certif. denied, 177 N.J. 572 (2003) (overturning conviction where defendant was told his statement was "off the record," thereby neutralizing the Miranda warnings and rendering it inadmissible). Similarly, statements will be suppressed where they are the product of evidence fabricated against a defendant. See State v. Patton, 362 N.J. Super. 16, 18 (App. Div.) (overturning conviction where police "fabricate[d] evidence to prompt a confession and later, introduce[d] that . . . evidence at trial to support the voluntariness of the confession"), certif. denied, 178 N.J. 35 (2003).

This case presents neither of those situations. This ruse fell outside the category of duplicity intended to produce false confessions or deceptions offensive to due process. See State v. Chirokovskcic, 373 N.J. Super. 125, 132-33 (App. Div. 2004). This trick was merely designed to elicit more details from defendant without disclosing those of the victim's statement. It merely conveyed to defendant that the victim was believed. It is a fiction similar in kind to instances where police obtain a confession by expressing sympathy towards a defendant, saying he needs psychiatric help. See Miller v. Fenton, 474 U.S. 104, 106-07, 106 S. Ct. 445, 447-48, 88 L. Ed. 2d 405, 408-09 (1985).

Hence, we agree with the trial judge that the State readily bore its burden to prove beyond a reasonable doubt that defendant waived his Miranda rights freely and voluntarily. The State proved not only defendant's full understanding and waiver of those rights, but that, given the totality of the circumstances, the interrogation itself was not coercive and could not have overborne defendant's will.

Defendant also contends the trial judge erred by not deciding whether the victim's prior false accusation involving another minor should have been resolved prior to his plea cut-off date. We note that the record does not indicate the false statement involved any claim of sexual molestation. Most significantly, the reason the judge did not decide the question was because no such motion was made.

Although the subject arose during the Gross hearing, the court actually told counsel an application would have to be filed about the prior allegation as, at that juncture, the judge did not believe he had sufficient information to make the decision. The Gross hearing focused solely on the victim's anticipated testimony and the admissibility of a prior recorded statement in which she made the allegations of sexual molestation against defendant. Defendant should not be heard to complain that he did not receive an answer to a question he did not ask.

Moreover, as the State points out, defendant preserved the issue of the admissibility of his statement, in accord with Rule 3:9-3(f), but did not do so with regard to any other issues. The rule provides that "[w]ith the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion." No such preservation of the right to raise this issue was made. Defendant's failure to enter a conditional plea as to all issues bars review of claims other than search and seizure. See State v. Knight, 183 N.J. 449, 471 (2005). There is nothing compelling about these circumstances warranting an exception to the rule. See, e.g., State v. Gonzalez, 254 N.J. Super. 300, 303-04 (App. Div. 1992) (challenging overall validity of legislative sentencing scheme).

Defendant also contends his attorney was ineffective because, during the course of the Miranda hearing, he did not call the interpreter and he failed to demand the trial court rule on his application to admit the victim's prior false accusation before the decision was made to enter a guilty plea. These claims are best reserved for decision by way of post-conviction relief. See, e.g., State v. Lewis, 389 N.J. Super. 409, 416 (App. Div.), certif. denied, 190 N.J. 393 (2007). Accordingly, we will not reach those issues.

Defendant's final point is that his sentence was manifestly excessive. We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Ibid.

In sentencing defendant, the court found the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), as well as the need to deter defendant and others from violating the law, 2C:44-1(a)(9). In mitigation, the court found factor seven, that defendant had no prior criminal history. N.J.S.A. 2C:44-1(b)(7). He further found the aggravating factors preponderated over the single mitigating factor, and that this weighed in favor of a sentence in the higher end of the statutory range for a second-degree crime.

Defendant's statement during allocution that the judge should show him leniency because he loved his son and missed his family may explain the otherwise unwarranted reduction in the term of imprisonment from the agreed-upon nine years to eight years. It does not, however, contrary to defendant's claims, warrant a finding of mitigating factor eleven. Nothing on the record established a harm greater than that incurred whenever persons are incarcerated and thereby removed from their families. In our opinion, the sentence conforms to the requirements of the Code, was the product of appropriate weighing of factors based on substantial credible evidence in the record, and does not shock our conscience.

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

2 State v. Gross, 121 N.J. 1 (1990).