STATE OF NEW JERSEY v. MYRIAM JANVIER
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5139-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MYRIAM JANVIER,
Defendant-Appellant.
_____________________________
Submitted February 25, 2019 – Decided May 1, 2019
Before Judges Messano, Gooden Brown, and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 12-06-1695.
Joseph E. Krakora, Public Defender, attorney for
appellant (Brian P. Keenan, Assistant Deputy Public
Defender, of counsel and on the briefs).
Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Caroline C. Galda,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
An Essex County grand jury indicted Myriam Janvier (defendant) and
Krisla Rezireksyon Kris, a/k/a Venette Ovilde, charging them with the murder
of Rezireksyon's eight-year-old daughter, C.R.K.,1 and thirty-six other counts
relating to the maltreatment of C.R.K. and Rezireksyon's two other minor
children.2 Following a hearing pursuant to N.J.R.E. 104(c), the judge denied in
part, and granted in part, defendant's motion to suppress a statement given to
law enforcement authorities.
Thereafter, defendant pled guilty to first-degree aggravated manslaughter,
N.J.S.A. 2C:11-4(a)(1), three counts of second-degree endangering the welfare
of a child, N.J.S.A. 2C:24-4(a); and three counts of third-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(2).3 The judge sentenced defendant to eighteen-
years imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2,
1
We use initials to protect the child's identity. R. 1:38-3(c)(9). Additionally,
all the children were identified with initials and last name aliases in the
indictment. The jury verdict sheet reflects the aliases used during trial.
2
Rezireksyon was charged alone in count thirty-eight with third-degree
hindering apprehension, N.J.S.A. 2C:29-3(b).
3
Rezireksyon elected to go to trial. In a separate opinion also filed today in A-
0469-16, we affirm her judgment of conviction and sentence.
A-5139-16T4
2
on the aggravated manslaughter conviction, with the remaining sentences
running concurrent to that sentence.
Before us, defendant raises the following points:
POINT I
THE MOTION JUDGE APPLIED THE WRONG
STANDARD THEREBY ERRONEOUSLY
DENYING DEFENDANT'S MOTION TO SUPPRESS
HER POST-MIRANDA[4] STATEMENT TO THE
POLICE, WHICH WAS ELICITED USING THE
QUESTION FIRST, WARN LATER PROCEDURE,
BARRED UNDER STATE LAW. STATE V.
O'NEILL, 193 N.J. 148 (2007).
POINT II
THE JUDGE ACCORDED UNDUE WEIGHT TO
AGGRAVATING FACTORS ONE AND TWO
BASED ON AN INCORRECT FACTUAL BASIS
AND IMPROPERLY FOUND AGGRAVATING
FACTOR FIFTEEN IN IMPOSING A MANIFESTLY
EXCESSIVE SENTENCE THAT REQUIRES
REVERSAL.
We have considered these arguments in light of the record and applicable legal
standards. We affirm defendant's conviction and remand the matter for re -
sentencing.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
A-5139-16T4
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I.
We explained the significant details regarding the initial police
investigation in our opinion, State v. Rezireksyon, A-0469-16. On the evening
of May 22, 2011, after already securing a statement from Rezireksyon,
Detectives Michael Anthony Davidson and Darryl Holmes, of the Essex County
Prosecutor's Office and the Irvington Police Department, respectively, took a
video-recorded statement from defendant. Davidson testified at the pre-trial
hearing regarding the circumstances surrounding the statement, and the judge
viewed the video.
Davidson responded to the apartment that defendant and Rezireksyon
occupied to investigate the suspicious death of a child. Davidson saw the dead
child's body, and was informed by another sergeant that Rezireksyon was the
mother. As he approached "a makeshift door" in the apartment to investigate
further, defendant asked Davidson why he was going into her room. Inside,
Davidson found Rezireksyon's two other children huddled in the corner, but
showing no signs of injury, except for some minor scars.
Defendant was transported to police headquarters. Davidson, who had
already taken a statement from Rezireksyon, was unaware of the cause of
C.R.K.'s death. He testified that defendant was not under arrest or a suspect and
A-5139-16T4
4
was free to leave at any time. He did not administer Miranda warnings to
defendant at the start of the interview, but did so approximately one hour and
twenty minutes later, after concluding defendant "was more of a co-mother" of
the children and "had more responsibility to the kids than [he] believed in the
beginning" of the interview. The interview continued after defendant read the
Miranda rights aloud from a printed form and signed the waiver.
In a written decision, the judge concluded that defendant's statements
made prior to Davidson administering Miranda warnings, although voluntarily
given, were the products of custodial interrogation and must be suppressed. He
reached a different result regarding statements defendant made after the
warnings.
The judge concluded that defendant knowingly and voluntarily waived her
Miranda rights, her statement was "given voluntarily," and it was not the product
of "psychological pressure, threats, . . . promises" or physical abuse. Citing
Oregon v. Elstad, he rejected the argument that defendant's post-Miranda
statement was the "fruit of the poisonous tree[]" for the proposition that the
doctrine "does not apply to . . . a noncoercive Miranda violation." See 470 U.S. 298, 318 (1985) (holding that "a suspect who has once responded to unwarned
A-5139-16T4
5
yet uncoercive questioning is not thereby disabled from waiving his rights and
confessing after he has been given the requisite Miranda warnings").
Defendant argues the judge "applied the incorrect, federal standard" in
refusing to suppress her post-Miranda warning statements and instead should
have followed the Court's holding in O'Neill, which, she contends, "banned" the
"'ask first, warn later' interview technique." The State argues that by pleading
guilty, defendant waived her right to appeal the motion judge's decision.
Alternatively, the State argues the judge considered all relevant factors as
outlined in O'Neill and properly admitted the post-Miranda warning portion of
defendant's statement.
We agree that defendant's guilty plea foreclosed the ability to challenge
the admission of her post-Miranda warning statements. See State v. Knight, 183 N.J. 449, 470 (2005) ("[A] defendant who pleads guilty is prohibited from
raising, on appeal, the contention that the State violated his constitutional rights
prior to the plea.") (quoting State v. Crawley, 149 N.J. 310, 316 (1997)). As the
Court explained in Knight, there are generally only three exceptions to the
waiver rule, none of which apply here. Id. at 471. The first exception is
provided expressly by Rule 3:5-7(d), which permits a defendant to challenge on
appeal an unlawful search and seizure of physical evidence after entering a
A-5139-16T4
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guilty plea. Ibid.; see also State v. Robinson, 224 N.J. Super. 495, 500 (App.
Div. 1988) ("[U]nsuccessful challenges to statements and Miranda violations
cannot be raised on appeal after a guilty plea pursuant to Rule 3:5-7(d)."). The
second, expressly permitted by Rule 3:28-6(d), permits a post-guilty-plea appeal
from an order denying entry into a pre-trial intervention program (PTI). Knight,
183 N.J. at 471. Lastly, if a defendant enters a conditional guilty plea pursuant
to Rule 3:9-3(f), she may appeal those issues expressly preserved. Ibid.
In her reply brief, defendant argues we should consider her guilty plea a
conditional plea because: 1) although the judge informed her at the time that
she was waiving certain rights by pleading guilty, he failed to advise her she
was waiving her right to appeal from the pretrial ruling; and, 2) she provided no
written response to Question 4(e) on the plea form, which reads: "Do you further
understand that by pleading guilty you are waiving your right to appeal the
denial of all other pretrial motions except the following: [blank.]"
"The importance of the constitutional rights being waived when a
defendant enters a guilty plea necessitates that the knowing and voluntary nature
of the plea be demonstrated in the record so that it may be reviewed on appeal. "
State v. Simon, 161 N.J. 416, 443 (1999) (citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)). Hence, every judge in New Jersey engages in the questioning
A-5139-16T4
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of defendants on a daily basis throughout courtrooms of our state prior to
accepting a guilty plea. Question 4 on the plea form spotlights these rights.
Subpart (d) of the plea form specifically addresses the holding in Knight
by indicating a defendant does not waive his or her right to appeal the denial of
a motion to suppress pursuant to Rule 3:5-7(d), or rejection of an application to
enter PTI. Subpart (e) accomplishes two goals. It specifically advises a
defendant that he or she is waiving the right to appeal pretrial motions, unless
the appeal from the decision on a specific pretrial motion is preserved by listing
it on the plea form.
Here, defendant argues we should interpret the lack of any answer to
subpart (e) as the equivalent of a conditional guilty plea. However, Rule 3:9-
3(f) requires that a defendant satisfy several conditions before a conditional
guilty plea is accepted. "[A] defendant may plead guilty while preserving an
issue for appellate review only with the 'approval of the court and the consent
of the prosecuting attorney.'" State v. Gonzalez, 254 N.J. Super. 300, 304 (App.
Div. 1992) (quoting R. 3:9-3(f)). This reservation of "the right to appeal from
the adverse determination of any specified pretrial motion" must be placed "on
the record . . . ." R. 3:9-3(f).
A-5139-16T4
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We have chosen not to apply the rule when "[s]trict adherence to [its]
requirements . . . 'would result in an injustice.'" Gonzalez, 254 N.J. at 304
(quoting R. 1:1-2(a); see also State v. J.M., 182 N.J. 402, 410 (2005))
(considering the "important issue of whether [a] juvenile may present evidence
at the probable cause portion of the waiver hearing[,]" despite the defendant's
unconditional guilty plea, "[b]ecause the State failed to raise [the waiver]
argument below").
Here, there is nothing to suggest that defendant intended to enter a
conditional guilty plea. There is no evidence whatsoever in the record that
satisfies the rule's two essential prerequisites — "approval of the court" and
"consent of the prosecutor." The judge, the prosecutor and defense counsel
simply never discussed the subject. Cf., State v. Stephenson, 350 N.J. Super.
517, 519 n.2, (App. Div. 2002) (rejecting the State's argument that the defendant
waived his right to appeal where defense counsel at the plea hearing indicated
an intention to appeal the denial of the defendant's pre-trial motion to suppress
his statement to police). Nevertheless, to avoid any prospective petition seeking
post-conviction relief on the issue, we address the merits of defendant's cl aim.
"[O]n appellate review, a trial court's factual findings in support of
granting or denying a motion to suppress must be upheld when 'those findings
A-5139-16T4
9
are supported by sufficient credible evidence in the record.'" State v. S.S., 229 N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)).
"[T]he clearly mistaken/clearly erroneous standard of appellate review" applies
to factual findings made by the motion judge "based on video recording or
documentary evidence . . . ." Id. at 381. Legal conclusions reached from those
facts, however, are subject to our plenary review. State v. Hreha, 217 N.J. 368,
382 (2014) (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).
We agree with defendant that the judge's use of the Supreme Court's
analysis in Elstad to decide the motion was a mistake of law. In O'Neill, the
Court specifically forged a different path, relying on "our state law privilege
against self-incrimination . . . ." 193 N.J. at 175. We must, therefore, "decide
the controversy in the proper light of the applicable law." State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010) (citing State v. Steele, 92 N.J. Super. 498,
507 (App. Div. 1966)).
Contrary to defendant's assertion, the O'Neill Court did not "ban" the
technique of question first, warn later. The Court specifically said, "[w]e
emphasize that we are not pronouncing a bright-line rule." 193 N.J. at 181.
Instead, the Court held that when determining whether to admit post-Miranda-
A-5139-16T4
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warning statements in this context, "courts should consider all relevant factors,"
which include:
(1) the extent of questioning and the nature of any
admissions made by defendant before being informed
of his Miranda rights;
(2) the proximity in time and place between the pre- and
post-warning questioning;
(3) whether the same law enforcement officers
conducted both the unwarned and warned
interrogations;
(4) whether the officers informed defendant that his
pre-warning statements could not be used against him;
and
(5) the degree to which the post-warning questioning is
a continuation of the pre-warning questioning.
[Ibid.]
"In a two-step interrogation case, courts must view the totality of the
circumstances in light of the relevant factors and then determine whether the
unwarned questioning and admissions rendered the Miranda warnings
ineffective in providing a defendant the opportunity to exercise the privilege. "
Id. at 181-82.
Here, several of these factors weigh in favor or suppression. For example,
Davidson questioned defendant for an extended period before administering the
A-5139-16T4
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warnings, the interview was virtually seamless, with the post-Miranda warnings
portion flowing immediately from the earlier portion, and both parts of the
interrogation were conducted in the same place by the same officers. The
detectives never informed defendant that her pre-warning statements would not
be used against her.
However, these factors only serve to inform a decision on the ultimate
principal announced in O'Neill: "the admissibility of post-warning statements
will turn on whether the warnings functioned effectively in providing the
defendant the ability to exercise his state law privilege against self-
incrimination." Id. at 180-81. In this case, we must conclude the Miranda
warnings had the required effect on the interrogation that followed their
administration. We reach that conclusion because on several occasions during
the post-warning interrogation, defendant refused to answer certain questions.
At one point, defendant made clear that she wished to continue with the
interview, but did not want to respond to a particular question posed. These
statements by defendant indicate she clearly understood her rights and how to
exercise them; she had not "crossed a psychological bridge from which there
was no turning back." Id. at 170.
A-5139-16T4
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We affirm the denial of defendant's motion to suppress the post-Miranda
warning portion of her statement to the detectives.
II.
In sentencing defendant, the judge found aggravating factors one, two,
nine and fifteen. See N.J.S.A. 2C:44-1(a)(1) ("nature and circumstances of the
offense, . . . including whether . . . it was committed in an especially heinous,
cruel, or depraved manner"); (a)(2) ("seriousness of harm inflicted on the victim,
including whether . . . defendant knew . . . the victim . . . was particularly
vulnerable or incapable of resistance due to . . . extreme youth . . ."); (a)(9) (the
need to deter defendant and others); and (a)(15) ("[t]he offense involved an act
of domestic violence, as . . . defined in [N.J.S.A. 2C:25-19(a)]," and the
defendant committed an "act of domestic violence on more than one occasion").
The judge also found mitigating factor seven. See N.J.S.A. 2C:44-1(b)(7) (no
prior criminal history).
Defendant contends the judge found aggravating factors one and two
based on facts unsupported by substantial evidence in the record, and
aggravating factor fifteen, which, as a matter of law, did not apply. We agree.
"Appellate review of sentencing decisions is relatively narrow and is
governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283,
A-5139-16T4
13
297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). We consider
whether the trial court has "appl[ied] correct legal principles in exercising its
discretion." Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334,
363 (1984)). As part of our review, we must determine whether "the aggravating
and mitigating factors found by the sentencing court were not based upon
competent and credible evidence in the record . . . ." State v. Fuentes, 217 N.J.
57, 70 (2014). We will affirm the sentence if:
(1) the trial court followed the sentencing guidelines;
(2) its findings of fact and application of aggravating
and mitigating factors were "based upon competent
credible evidence in the record;" and
(3) "the application of the guidelines to the facts" of the
case does not "shock[ ] the judicial conscience."
[State v. A.T.C., 454 N.J. Super. 235, 254 (App. Div.
2018) (alteration in original) (quoting State v. Bolvito,
217 N.J. 221, 228 (2014)).]
And, while a sentence imposed in accordance with a plea bargain, as this was,
is presumptively reasonable, we should vacate and remand the matter for
resentencing "if [the sentence] does not comport with the sentencing provisions
of our Code of Criminal Justice." Fuentes, 217 N.J. at 71.
The State concedes that aggravating factor fifteen does not apply because
an act of domestic violence, as defined by N.J.S.A. 2C:25-19(a), can only be
A-5139-16T4
14
"inflicted upon a person protected under" the Prevention of Domestic Violence
Act, N.J.S.A. 2C:25-17 to -35. A person protected under the Act is a "[v]ictim
of domestic violence" and generally must be "[eighteen] years of age or older or
. . . an emancipated minor . . . ." N.J.S.A. 2C:25-19(d). The victims here were
all very young children, and, therefore, defendant's offenses did not "involve []
an act of domestic violence . . . ." N.J.S.A. 2C:44-1(a)(15).
We may "remand for resentencing if the trial court considers an
aggravating factor that is inappropriate to a particular defendant or to the offense
at issue." Fuentes, 217 N.J. at 70 (citing State v. Pineda, 119 N.J. 621, 628
(1990)). The State urges us to avoid a remand because the error as to factor
fifteen "had an inconsequential effect on the overall sentence." Perhaps.
However, there are other reasons why a remand is required.
The judge premised his findings as to aggravating factor one upon "ample
evidence in the record, including evidence from co-defendant's trial regarding
the malnutrition of the children, the children's fractured bones from beatings ,
and the ropes used to tie the children to a radiator, which occurred over about
three years," which demonstrated the "especially cruel manner and prolonged
period in which the crimes were committed against the child victims." (emphasis
added). In finding factor two, the judge noted that "the duration of the offenses
A-5139-16T4
15
spanned about three years," during which the victims' "extreme malnourishment
and injuries . . . prevented them from resisting defendant." (emphasis added).
However, the basis for finding defendant participated in the horrific
treatment of the children for three years is, at the least, unclear. In her statement
to police, defendant claimed she first started living with Rezireksyon and the
children in August 2010, approximately nine months prior to the interrogation. 5
The indictment only alleged conduct occurred between August 2010 and May
2011, when C.R.K. was found dead in the apartment. Defendant did not specify
the period of time she spent with Rezireksyon and the children during her guilty
plea allocution. As a result, we agree there was no substantial credible evidence
that defendant engaged in a three-year period of child abuse and neglect. We
accordingly vacate the sentence imposed and remand for re-sentencing.
We affirm defendant's conviction. We vacate the sentence imposed and
remand to the trial court for re-sentencing. We do not retain jurisdiction.
5
In the statement she gave to police, Rezireksyon said defendant had been living
with her and the children for between three and six months.
A-5139-16T4
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