STATE OF NEW JERSEY v. FRANKLIN GUAMAN

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4721-15T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FRANKLIN GUAMAN,

     Defendant-Appellant.
___________________________

              Submitted April 10, 2018 – Decided April 27, 2018

              Before Judges Gilson and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              14-02-0304.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stephen W. Kirsch, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Frank Muroski, Deputy Attorney
              General, of counsel and on the brief).

PER CURIAM
      Defendant   Franklin   Guaman   appeals   from   his   conviction,

focusing on a June 30, 2015 order denying his motion to suppress

his statement to police.     We affirm.

      After denial of his motion to suppress evidence, defendant

pled guilty to second-degree endangering the welfare of a child,


N.J.S.A. 2C:24-4a.1   The remaining charges against defendant were

dismissed.   In accordance with the plea agreement, defendant was

sentenced to three years in prison.

      The judge conducted an evidentiary hearing on defendant's

suppression motion.   At the hearing, a detective from the Special

Victim's Unit at the Hudson County Prosecutor's Office testified

for the State.    The detective, who interviewed defendant, stated

that she introduced herself to defendant, informed defendant that

the victim had made allegations against him, and read defendant

his Miranda2 rights in Spanish.       The detective further testified

that she handed defendant a form, acknowledging that defendant

understood his Miranda rights, and asked defendant to sign the

Spanish version of the form if he understood his rights.




1
   Defendant was alleged to have sexually assaulted a minor to
whom he was related.
2
    Miranda v. Arizona, 
384 U.S. 436 (1966).

                                  2                              A-4721-15T3
    Defendant responded that he understood his rights but had "a

question."   The following exchange took place between defendant

and the detective:

         DEFENDANT:     Yes, I understand them but I
         have a question. I'm going to sign, but before
         I sign don't I need to know precisely the
         gravity of the case? Why, in others words do
         I need of a lawyer? I really do not need one,
         but do I need to sign now before I
         consult . . . .

         DETECTIVE:     I need you to understand what's
         going on.   The little girl . . . has made
         allegations against you of sexual abuse, ok?
         Before I can talk to you, I need you to
         understand your rights, ok?

         DEFENDANT:      Ok.

         DETECTIVE:     Ok, by signing that you are
         saying that you understand your rights, ok and
         that you don't need . . . .

         DEFENDANT:     Ok, just to know what my rights
         are, that I know what my rights are.

         DETECTIVE:      Yes.

         DEFENDANT:      Ok, where?

         DETECTIVE:     I need you to initial here, in
         each one and sign at the bottom.

         DEFENDANT:      In all of these?

         DETECTIVE:     Yes.   The ones that are in
         Spanish.   And if you understand your rights
         that I read to you, sign down here; also if
         you want to talk to me.




                                3                         A-4721-15T3
     After this conversation, defendant signed the Miranda form,

acknowledging he understood his rights, waived his rights, and

agreed   to    answer    the    detective's     questions.     Defendant    then

admitted to the detective that he inappropriately touched the

minor victim for his own sexual gratification.

     At the conclusion of the evidentiary hearing, the judge denied

the suppression motion.              The judge found defendant was not in

custody at the time the statement was made and that defendant

failed to assert his right to counsel before speaking with the

detective.

     On appeal, defendant argues:

     POINT I

              THE MOTION TO SUPPRESS DEFENDANT'S STATEMENT
              SHOULD HAVE BEEN GRANTED; CONTRARY TO THE
              MOTION JUDGE'S RULING, DEFENDANT WAS IN
              CUSTODY AND MADE AT LEAST AN AMBIGUOUS
              ASSERTION OF HIS RIGHT TO COUNSEL THAT NEEDED
              TO BE ADDRESSED BY POLICE BEFORE THE
              INTERROGATION COULD PROCEED.

     Defendant argues the judge erred in denying the motion to

suppress his statement to the detective because he asserted his

right    to   counsel.         The   State    argues   defendant's   appeal    is

procedurally barred, because defendant failed to preserve his

right to appeal the denial of his suppression motion.

     The plea form initialed and signed by defendant specifies

defendant understood he was waiving his right to appeal the denial

                                          4                             A-4721-15T3
of all pretrial motions, with the exception of those motions

contemplated under Rule 3:5-7(d) or Rule 3:28(g).                The plea form

had   a   section   preserving   the       right   to   appeal    specifically

enumerated pretrial motions.      However, there is nothing written

on the signed plea form preserving defendant's right to appeal the

denial of his motion to suppress his statement.

      Although the signed plea form and the plea hearing transcript

do not support defendant's preservation of the right to appeal

denial of his motion to suppress, defendant contends he preserved

his right to appeal during the sentencing hearing.                 While there

was   a   discussion   during    the       sentencing    hearing     regarding

defendant's right to appeal, the State never agreed that defendant

properly preserved the issue for appeal.

      It is well settled that "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)).     Only motions for suppression based on an

unlawful search and seizure automatically survive the entry of a

guilty plea.    See State v. Greeley, 
178 N.J. 38, 50-51 (2003);

Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 3:5-7

(2018).   As this matter does not involve suppression of unlawfully

seized evidence, defendant was required to "enter a conditional

                                       5                               A-4721-15T3
plea of guilty reserving on the record the right to appeal from

the   adverse   determination   of   any   specified   pretrial   motion"

consistent with Rule 3:9-3(f).

      Based on our review of the plea form and transcript of the

plea hearing, defendant failed to preserve his right to appeal the

denial of his motion to suppress his statement in accordance with

Rule 3:9-3(f).    Where a defendant fails to preserve the right to

appeal the admission of his or her statement to the police per

Rule 3:9-3, defendant is precluded from raising the issue on

appeal.   See State v. Brown, 
352 N.J. Super. 338, 349-51 (App.

Div. 2002).     Thus, defendant waived his right to challenge the

judge's denial of his suppression motion when he entered                 an

unconditional guilty plea.      See Knight, 
183 N.J. at 470-71.

      We reject defendant's argument that statements made by the

sentencing judge preserved the right to appeal the denial of the

suppression motion.      The sentencing judge simply stated that

defendant could still appeal from his conviction.        We do not find

any of the statements by the sentencing judge support preservation

of defendant's right to appeal the denial of his motion to suppress

his statement to the detective.

      Affirmed.




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