STATE OF NEW JERSEY v. R.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.S.,

Defendant-Appellant.

_____________________________________________________

November 30, 2015

Submitted October 20, 2015 Decided

Before Judges Fisher, Espinosa and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 12-12-1559 and 01-11-1422.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Deputy Public Defender, of counsel and on the brief).

Robert D.Bernardi, BurlingtonCounty Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal, defendant claims the State failed to prove beyond a reasonable doubt that he knowingly, voluntarily and intelligently waived his Miranda1 rights prior to giving a confession of crimes for which he was later charged and convicted. Because the judge found despite defendant's low I.Q. and other evidence of his difficulties in comprehending abstract or nuanced information that he understood and freely and voluntarily waived his rights, and because of our obligation to defer to the judge's factual findings, we affirm.

Defendant was charged in 2001 with two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), and one count of third-degree child endangerment, N.J.S.A. 2C:24-4(a). In 2002, he pleaded guilty to third-degree child endangerment and received a five-year prison term. Defendant challenged his sentence by way of direct appeal; we affirmed. This conviction rendered defendant eligible for civil commitment pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, and, in fact, the State sought and obtained an order, entered on January 26, 2007, committing defendant as a sexually violent predator. Defendant appealed, but we affirmed that order as well. In re the Civil Commitment of R.S., No. A-4609-06 (App. Div. Dec. 12, 2008), certif. denied, 198 N.J. 317 (2009).

Defendant filed a post-conviction relief (PCR) petition on February 27, 2007, arguing he did not knowingly and voluntarily enter into his guilty plea because he was not advised such a conviction could form the predicate for an indefinite civil commitment. The PCR judge denied the petition, but we remanded for an evidentiary hearing and retained jurisdiction. State v. R.S., No. A-0161-09 (App. Div. July 16, 2012) (slip op. at 3-4). Following a hearing and the PCR judge's findings, we again reviewed the matter and found that defendant was entitled to withdraw his guilty plea; we remanded for further proceedings necessitated by that determination. Id. at 8-10.2

Back in the trial court, defendant moved to suppress a confession given to police on June 15, 2001. The judge conducted an evidentiary hearing, during which he heard from: Detective Kimberly Bogie, who secured defendant's Miranda waiver; Dr. James Reynolds, a psychologist who assessed defendant's intellectual functioning and opined about his ability to understand and appreciate the rights he waived; and defendant. The judge also heard and considered the audio confession, a transcript of the confession, and the Miranda card signed by defendant. After weighing this information, the judge found, for the reasons expressed in an oral opinion, that the State sustained its burden and denied the suppression motion.

At the conclusion of a two-day trial in 2013, a jury convicted defendant on all counts. The judge entered a judgment of conviction that memorialized that defendant had fully served the sentence the judge would have otherwise imposed.

Defendant appeals, arguing only

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE DEFENDANT'S STATEMENT BECAUSE HE DID NOT KNOWINGLY, VOUNTARILY AND INTELIGENTLY WAIVE HIS RIGHT TO REMAIN SILENT.

We find insufficient merit in this argument to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

Our review of a trial judge's findings of fact in this setting is limited. State v. Robinson, 200 N.J. 1, 15 (2009). "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). Accordingly, we will not disturb a judge's ruling even if we might have arrived at a different conclusion unless the findings "are so clearly mistaken that the interests of justice demand intervention and correction." Id. at 244 (internal quotation marks omitted).

When viewing the record and the judge's decision in light of this standard, we are compelled to affirm the denial of defendant's suppression motion. To be sure, there was competing evidence in the record. For example, Dr. Reynolds testified that defendant, with an I.Q. of 80 and "borderline intellectual ability," has "more difficulty processing abstract or more subtle or more nuanced information than somebody who has a greater level of intellectual ability." The judge considered this testimony and, in fact, "d[id] not reject" it, but the judge did, however, express his "disagree[ment] in some measure with [Dr. Reynolds's] conclusion," concluding that in light of his own assessment of the recorded confession, which Dr. Reynolds did not hear or consider, defendant understood his rights and his actions

[D]efendant argues that he lacks substantial cognitive ability and thus his statement cannot be deemed knowing, and voluntarily given. The [c]ourt sees it otherwise. He may have or may not have difficulty with the written word. Dr. Reynolds said that a Miranda warning card really is geared to a fourth or fifth grade level of reading. But again, here Dr. Reynolds really gained some admiration from the [c]ourt. He didn't stretch this to be more than it was. He said that it's possible [defendant] understood it and it's possible he didn't understand it. What Dr. Reynolds didn't hear was the audio tape which the [c]ourt heard. And the [c]ourt is certain that the defendant on that day at that time understood what was being said [to] him.

. . . .

Again, if the defendant understood, it's of no consequence to the [c]ourt whether he had a 142 I.Q., an 80 I.Q. or even a 65 I.Q. The law does not require that only people with graduate degrees be interrogated. The law only requires that they give competent, knowing and voluntary testimony, the [c]ourt finds, and that they be competent and knowing. And the [c]ourt finds that that was clearly the case with [defendant].

We are obligated to defer to the experienced judge's view of that evidence because he had the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; see also Robinson, supra, 200 N.J. at 15.3 We, therefore, affirm because defendant has presented no principled reason4 for our rejection of the judge's thoughtful assessment of the evidence.

Affirmed.

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

2 Defendant also moved to vacate the civil commitment order. That application was denied, and we affirmed that denial in light of defendant's commission of other predicate offenses. In re the Civil Commitment of R.S., No. A-2174-12 (App. Div. Aug. 7, 2014) (slip op. at 3).

3 We also recognize, as did the judge, that the materials before him were not ideal because the confession was secured prior to the adoption of Rule 3:17(a), which would have required that the entire interrogation be recorded.

4 Defendant makes a point of arguing that the judge never actually stated that defendant knowingly and voluntarily waived his Miranda rights. Although there is truth to this assertion, we find that such a finding was implicitly contained in the judge's otherwise thorough decision.