On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication November 13, 1995.
Before Judges Shebell, Wallace and Newman. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by SHEBELL, P.J.A.D.
The State, on leave granted by this court, appeals from an order of the Law Division that granted the motion of defendant, P.Z., to bar, on constitutional grounds, the use against him in this criminal prosecution of certain statements he gave to a Division of Youth and Family Services (DYFS) case worker. We affirm.
On May 2, 1995 a hearing was held on defendant's motion to suppress his statements. The Judge found that the Prosecutor's Office had knowledge of the incident of child abuse from the outset of the civil matter, when DYFS notified them as required by N.J.S.A. 9:6-8.36a. He then went on to state:
Here's a man who basically has no reason to think, at that point, that he's going to be charged with anything, but we know that the Prosecutor's been involved, at that point, a good long period of time.
They're looking at this case. And certainly, there's a possibility here that he's a target. And now that -- now that the AG and everyone else involved with DYFS knows from the wife that he told [her] he did it, that he shook the child, and so on, and so forth. And they know that they're going to go see him now. They're going to go see him sans [prosecutor], okay? Sans anybody with a badge. You know, the question was properly asked, rightly so, by the State.
["]You have the power to arrest?["]
No, but they have a duty, an immediate duty, to call the Prosecutor's Office and let them know precisely what they found, under the circumstances.
The Judge found further that the statement made by defendant to the DYFS investigator -- "Look, my attorney told me I shouldn't discuss this with you, you know," if made to a "law enforcement officer," in a criminal setting, would be taken by the officer to be an invocation of right to counsel. The Judge held that the statement, "under these circumstances, notwithstanding the finding that this was . . . not a custodial setting, . . . was tantamount to an invocation of his right to counsel . . . under the Sixth Amendment." He explained:
So I think that was a -- an invocation of a right to counsel that should have been honored under the facts of this case.
The subject matter of Title Nine, and . . . particularly, as the allegations of this case are applied in Title Nine, though that's a Civil type matter, where right to counsel is called for, the allegations clearly that they were talking about there, if true, could have just as well been handled criminally.
And Title Nine recognizes that, because they say . . . let the Prosecutor know immediately. ...