STATE OF NEW JERSEY v. D.R.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1846-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

D.R.,

Defendant-Appellant.
_______________________________

Argued October 30, 2017 – Decided March 13, 2018

Before Judges Messano and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
12-03-0235.

Tamar Y. Lerer, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Tamar Y. Lerer, of counsel and on the briefs).

Tom Dominic Osadnik, Assistant Prosecutor,
argued the cause for respondent (Camelia M.
Valdes, Passaic County Prosecutor, attorney;
Tom Dominic Osadnik, of counsel and on the
brief).

PER CURIAM
A jury convicted defendant D.R. of second-degree sexual

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

welfare of a child,
N.J.S.A. 2C:24-4(a)(1).1 At sentencing, the

judge merged the endangering conviction with the sexual assault

conviction, and sentenced defendant to an eight-year term of

incarceration, subject to the No Early Release Act,
N.J.S.A. 2C:43-

7.2.

Defendant raises the following issues on appeal:

POINT I

THE TRIAL COURT ERRED IN NOT SUPPRESSING THE
STATEMENT GIVEN BY DEFENDANT FOLLOWING
INADEQUATE [MIRANDA] WARNINGS AND AN AT LEAST
AMBIGUOUS REQUEST FOR COUNSEL.

A. INTRODUCTION.

B. THE OFFICER NEITHER HONORED
DEFENDANT'S INVOCATION OF HIS RIGHT
TO COUNSEL NOR PROPERLY EXPLAINED
THAT RIGHT. AS A RESULT,
DEFENDANT'S SUBSEQUENT STATEMENT
WAS INADMISSIBLE.

C. CONCLUSION.

POINT II

THE FAILURE TO PROPERLY INSTRUCT THE JURY AS
TO HOW TO CONSIDER THE EVIDENCE PLAYED BACK
DURING DELIBERATIONS, AS REQUIRED BY STATE V.

1
The jury acquitted defendant of first-degree aggravated sexual
assault,
N.J.S.A. 2C:14-2(a)(1). The indictment also charged
defendant with the same offenses against a second victim. Those
counts were severed prior to trial and subsequently dismissed
without prejudice at sentencing.

2 A-1846-15T1
MILLER, NECESSITATES REVERSAL OF DEFENDANT'S
CONVICTIONS. (NOT RAISED BELOW)

POINT III

IN SENTENCING DEFENDANT, THE TRIAL COURT
IMPROPERLY HELD HIS INTELLECTUAL LIMITATIONS
AGAINST HIM, RESULTING IN AN EXCESSIVE
SENTENCE.

Having considered these arguments in light of the record and

applicable legal standards, we affirm.

L.M. testified that in the morning of June 26, 2011, her

eight-year-old granddaughter, A.P.M., said defendant, who was

nineteen years of age, had come into her bedroom during the night

and touched her buttocks with his "private."2 Together, they went

upstairs and told defendant's mother, R.R., what allegedly had

happened. R.R. and L.M. confronted defendant, who denied the

accusation. R.R. told her son to leave, and defendant left the

house through a window.

R.R. testified that she heard a noise during the night and

went to check the bedroom where A.P.M. and her cousin, A.R., were

sleeping. R.R. could not enter because the door was locked, but

she soon discovered defendant was behind the door trying to keep

her from entering. Eventually, R.R. was able to open the door and

2
L.M.'s testimony regarding A.P.M.'s exact words was confused and
inconsistent.

3 A-1846-15T1
told defendant to go back to his bedroom, which he did. The next

morning, L.M. told her of A.P.M.'s accusation, and R.R. confronted

her son. He denied any wrongdoing. R.R. told defendant to go to

his room; he apparently climbed out a window and left.

A.P.M. testified that defendant first touched her buttocks

under her clothing with his hand, and returned later that same

night and touched her buttocks with his "private." A.P.M. told

her grandmother the next morning.

Investigator Giselle Henriquez recorded a video statement

from A.P.M. on June 28, 2011, which was played for the jury.

A.P.M. repeated her statement that defendant touched her buttocks

with his hand and "private." She told the investigator defendant

put his private "in" her "butt."

The State's final witness was Detective Angel Perales. He

secured a statement from defendant, also on June 28. Defendant

admitted touching A.P.M.'s buttock with his hand and penis. The

video recording of the statement was played for the jury with

redactions agreed upon by counsel.

II.

Defendant moved pre-trial to suppress the statement he made

to Detective Perales. The judge conducted a hearing pursuant to

N.J.R.E. 104(c), at which the detective testified and the judge

viewed the videotaped interview.

4 A-1846-15T1
Defendant had been awake for at least seven hours before

Perales began interviewing him at approximately 11:22 a.m.

Defendant said he was cold and tired. Shortly after entering the

interview room, Perales read defendant his Miranda3 rights from a

form. The following dialogue ensued:

Defendant: You got the air on[?]

Detective: Yeah we can't control the air
unfortunately it's one of the most common
complaints we got here, but I'll try to when
I leave here alright?

Defendant: Alright[.]

Detective: . . . [B]efore I talk to you I
gotta advise you Miranda Warnings from our
Advisory Form. You could read, write and
speak English right?

Defendant: Yeah[.]

Detective: Alright, hold on to that. That's
the same copy that I got here. See, it says
copy up top. Alright [D.R.] right?

Defendant: Yeah[.]

Detective: Before I remain speaking to you I
have to make sure that you understand what
your rights are. These are the rights that
you have when you speak to me or any of us at
any time. I'm going to tell you what your
rights are now. One, you have the right to
remain silent. Do you understand that?

Defendant: Yes[.]

3
Miranda v. Arizona,
384 U.S. 436 (1966).

5 A-1846-15T1
Detective: Two, if you speak to me anything
you say can be used against you in court. Do
you understand that?

Defendant: No[.]

Detective: You don't understand that?

Defendant: What's . . . what's that mean?

Detective: If you speak to me, so anything
you tell me like if you decide to speak to me
after we go over this[.]

Defendant: Mm-hmm[.]

Detective: You decide to speak to me;
anything you say can be used against you in
the court of law down the road[.]

Defendant: Oh[.]

Detective: Do you understand that?

Defendant: Yeah[.]

Detective: Okay, three, you have the right
to talk to a lawyer for advice before I begin
to speak with you. Do you understand that?

Defendant: Who my lawyer?

Detective: There's no lawyer. . . . [W]hat
it says is that you have the right to talk to
a lawyer for advice[.]

Defendant: Oh[.]

Detective: So you could talk to a lawyer for
advice before I talk to you. Do you understand
that?

Defendant: Yeah[.]

6 A-1846-15T1
Detective: Alright, four, you have the right
to have a lawyer with you while I speak to
you. Do you understand that?

Defendant: Yeah[.]

Detective: Okay, five, if you want a lawyer
but cannot pay for a lawyer one can be
appointed to represent you without cost before
I speak to you. Do you understand that?

Defendant: Mm-hmm[.]

Detective: Okay, six, if you decide to . . .
if you decide to speak with me now without a
lawyer present you still have the right to
stop speaking with me at any time. Do you
understand that?

Defendant: Yes[.]

Detective: Seven, you also have the right to
stop speaking with me at any time until you
speak to a lawyer. Do you understand that?

Defendant: Yes[.]

Detective: [D.R.] I just told you what your
rights are. Do you understand each and every
right?

Defendant: Yes[.]

Detective: Understanding these rights, are you
willing to give up your rights and speak with
me?

Defendant: What you mean?

Detective: Alright. These are all the rights
that so you can . . . you have the right to
remain silent you don't have to talk to me.
You can talk to a lawyer before you speak to
me. That . . . this is that part that
threshold so if you understand your rights are

7 A-1846-15T1
you willing to give up all seven of these
rights to talk with me or not?

Defendant: Nah, I'll talk to you[.]

Detective: You are going to talk to me?

Defendant: Yeah[.]

Detective: Okay, have I or anyone else made
you any promises or threats to convince you
to speak with me?

Defendant: No[.]

Detective: Alright, now I'll just put the time
on here. That's it.

The interrogation began and continued for more than one hour.

After reviewing the video recording and hearing the arguments

of counsel, in a comprehensive oral opinion, the judge found that

defendant "had the necessary understanding of the Miranda rights

to give up those Miranda rights," and did so voluntarily. She

found defendant was "focused," and was "not threatened or

physically menaced by the officer in any way." The judge

determined beyond a reasonable doubt that defendant understood and

voluntarily waived his Miranda rights and voluntarily made his

statement.

Citing the dialogue above, in Point I defendant argues the

judge erred in denying his motion to suppress, because the

detective "neither honored defendant's invocation of his right to

counsel nor properly explained that right." We disagree.

8 A-1846-15T1
Recently, the Court made clear that when reviewing the trial

court's findings after an evidentiary hearing on a motion to

suppress statements to law enforcement, "[a]n appellate court

ordinarily should defer to a trial court's factual findings, even

when those findings are based solely on its review of a video

recording. Deference, however, is not required when the trial

court's factual findings are clearly mistaken." State v. S.S.,

229 N.J. 360, 386 (2017). "Because legal issues do not implicate

the fact-finding expertise of the trial courts, appellate courts

construe the Constitution, statutes, and common law 'de novo --

with fresh eyes -- owing no deference to the interpretive

conclusions' of trial courts, 'unless persuaded by their

reasoning.'" Id. at 380 (quoting State v. Morrison,
227 N.J. 295,

308 (2016) (citations omitted)).

When a suspect unambiguously asserts his right to remain

silent, all questioning must stop. Id. at 382. Our jurisprudence,

however, has extended greater protection. "[U]nder our state law

privilege against self-incrimination, 'a request, however

ambiguous, to terminate questioning . . . must be diligently

honored.'" Ibid. (quoting State v. Bey (Bey II),
112 N.J. 123,

142 (1988)). "[I]f the police are uncertain whether a suspect has

invoked his right to remain silent, two alternatives are presented:

(1) terminate the interrogation or (2) ask only those questions

9 A-1846-15T1
necessary to clarify whether the defendant intended to invoke his

right to silence." Id. at 383 (citation omitted).

Defendant first contends that his question, "Who my lawyer?,"

was an ambiguous request for counsel. However, in making the

threshold determination of whether a suspect has invoked his or

her right to counsel, we employ "a totality of the circumstances

approach that focuses on the reasonable interpretation of

defendant's words and behaviors." State v. Diaz-Bridges,
208 N.J.
544, 564 (2012) (overruled in part on other grounds by S.S.,
229 N.J. at 379); see also State v. Roman,
382 N.J. Super. 44, 64

(App. Div. 2005) ("Not merely the words spoken, . . . but the full

context in which they were spoken have to be considered in

determining whether there has been an invocation of the right to

remain silent.").

In this case, defendant never indicated that he wished to

stop speaking or speak to counsel. See Roman,
382 N.J. Super. at
65. Immediately before and after the remark, the detective

continued to explain defendant's rights and answered defendant's

questions. Defendant expressed a clear understanding, as the

trial judge found, of his right to have an attorney present before

answering any questions, to stop answering questions at any time,

and to have a lawyer present before questioning resumed.

10 A-1846-15T1
Defendant secondarily argues that Detective Perales's answer

to his question was improper, and, without being supplied a proper

answer, defendant did not knowingly and intelligently waive his

Miranda rights. Again, we disagree.

Defendant argues Perales's response, "There's no lawyer," was

an "incorrect and misleading" explanation of the Miranda rights.

Defendant cites our opinion in State v. Puryear,
441 N.J. Super.
280 (App. Div. 2015), for support. There, in the course of

administering the Miranda warnings, the detective told the

defendant anything he said could be used against him in court.

Id. at 290. The defendant did not understand, asking if that

meant he would "have to stand up in . . . court and say this

again." Ibid. In response, the detective told the defendant it

meant, "if you lie, it can be used against you." Ibid. We

affirmed the trial court's suppression of the defendant's

statement because "the [detective's] instruction contradicted a

key Miranda warning. Moreover, the instruction by the detective

was not a permissible interrogation technique." Id. at 298.

Defendant also relies upon our decision in State v. Pillar,

359 N.J. Super. 249 (App. Div. 2003). There, after being

administered Miranda rights upon arrest, the defendant indicated

a desire to speak to an attorney first. Id. at 262. The defendant

asked police if he could "say something 'off-the-record.'" Ibid.

11 A-1846-15T1
The police agreed to listen, after which the defendant made

incriminating admissions, which were admitted at trial after the

defendant's motion to suppress was denied. Id. at 262-63.

We reversed defendant's conviction. Id. at 291. We concluded

the officers' misrepresentation that the defendant could speak

"off-the-record," "renders the resulting statement inadmissible.

First, such a misrepresentation directly contradicts and thereby

neutralizes the entire purpose of the Miranda warnings. Second,

such misrepresentation, may, and in this case did, render the

statement involuntary." Id. at 265.

In this case, after responding to defendant's question, "Who

my lawyer?," with "There's no lawyer," Perales immediately

explained defendant could speak to a lawyer before any further

questioning occurred. He thereafter informed defendant that he

could speak to a lawyer before answering any questions, that he

had the right to have a lawyer appointed without cost before

deciding to speak to Perales, and that if defendant decided to

speak to Perales, he could stop at any time and speak to a lawyer.

The trial judge found defendant unequivocally understood and

waived those rights.

Perhaps Perales could have given a more complete response,

by indicating there was no lawyer present at that time in the

prosecutor's office where the interrogation was taking place.

12 A-1846-15T1
However, viewed in the context of the entire administration of the

Miranda rights, Perales's response did not mislead defendant or

otherwise contradict the Miranda warnings defendant received.

III.

The arguments raised in Points III and IV require only brief

discussion.

During deliberations, the jury asked to see a short, specific

portion of A.P.M.'s video statement and to hear the last four

questions the prosecutor posed to A.P.M. during her in-court

testimony and her responses. The judge identified the specific

portion of the video statement, and without objection, played that

for the jury.

The judge also identified the last four questions the

prosecutor asked on re-direct. Citing State v. Miller,
205 N.J.
109 (2011), and noting she wanted to be "very, very careful," the

judge asked defense counsel if there were any portions of cross-

examination that should be played to balance the playback. He

responded, "I think we'll just stick with the four questions,

Judge." The jury then heard A.P.M.'s testimony.

Defendant argues that the judge's failure to give the jury

limiting instructions after playing the video recording was plain

error. We disagree.

13 A-1846-15T1
In Miller,
205 N.J. at 122-24, the Court provided guidance

to trial judges in dealing with video playback requests. Among

other things, "at the time the testimony is repeated, judges should

instruct jurors to consider all of the evidence presented and not

give undue weight to the testimony played back." Id. at 123.

Undeniably, in this case, the judge did not give such an

instruction after a short portion of A.P.M.'s videotaped statement

was played for the jury.

However, that omission was not plain error. "Plain error is

error that 'is clearly capable of producing an unjust result.'"

State v. Weston,
222 N.J. 277, 294 (2015) (quoting State v.

Singleton,
211 N.J. 157, 182 (2012) (in turn quoting R. 2:10-2)).

"The error must have been of sufficient magnitude to raise a

reasonable doubt as to whether it led the jury to a result it

would otherwise not have reached." Ibid. (citation omitted).

In this case, the judge provided instructions to the jury

during her general jury charge that mirrored the favored language

cited by the Court in Miller. The jury deliberated slightly more

than one hour before it made its request for the playback. We

have no doubt that the failure to provide the same or similar

instructions after the jury saw a very limited portion of A.P.M.'s

video statement did not bring about an unjust result.

14 A-1846-15T1
At sentencing, the judge found aggravating factors two, three

and nine.
N.J.S.A. 2C:44-1(a)(2) (the gravity of harm inflicted

on the victim); (a)(3) (the risk of re-offense); and (a)(9) (the

need to deter defendant and others). The judge also found

mitigating factor seven,
N.J.S.A. 2C:44-1(b)(7) (lack of prior

criminal history), but rejected defense counsel's argument that

mitigating factors eight, nine, ten and twelve applied.
N.J.S.A.

2C:44-1(b)(8) (defendant's conduct resulted from circumstance

unlikely to re-occur); (b)(9) (defendant's character and attitude

make it unlikely he would re-offend); (b)(10) (defendant's

amenability to probation); and (b)(12) (willingness to cooperate

with law enforcement).

On appeal, defendant argues the judge's finding of

aggravating factor three and rejection of mitigating factor eight

were premised upon "[her] own musings" that defendant's

"intellectual limitations precluded him from benefitting from

therapy." We simply do not read the record in such harsh terms.

Rather, the judge's sentence reflects a careful, thoughtful

consideration of the entire record, and a reasoned, individualized

assessment of defendant as a person. We find no reason to disturb

the sentence imposed.

Affirmed.

15 A-1846-15T1

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