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State v. Cabrera

July 31, 2006

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARCOS PATINO CABRERA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-12-1352.

The opinion of the court was delivered by: Stern, P.J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 30, 2005

Before Judges Stern, Parker and Lihotz.

Defendant was convicted of aggravated sexual assault of a four-month old and other offenses merged therein, and was sentenced to twelve years in the custody of the Commissioner of Corrections with four years to be served before parole eligibility. On this appeal defendant argues:

POINT I THE DEFENDANT'S ALLEGED CONFESSION SHOULD HAVE BEEN SUPPRESSED ALONG WITH THE STATE'S EVIDENCE AT THE SUPPRESSION HEARING AS IT WAS OBTAINED IN VIOLATION OF HIS FIFTH AMENDMENT RIGHTS AND NEW JERSEY PRIVILEGE AGAINST SELF-INCRIMINATION; THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE "CONFESSION" WAS VOLUNTARY

POINT II JUDGE SOKALSKI ERRED IN DENYING THE MOTION FOR RECONSIDERATION OF THE DENIAL OF THE MOTION TO SUPPRESS THE CONFESSION

POINT III THE PROSECUTOR'S OPENING AND CLOSING STATEMENTS DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL (PARTIALLY RAISED BELOW)

POINT IV THE TRIAL JUDGE ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL IN FAVOR OF THE DEFENDANT AS TO COUNTS 1, 2 AND 3 AS THE STATE FAILED TO PROVE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT CONTRARY TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION

POINT V THE PROSECUTOR IMPROPERLY COMMENTED UPON THE DEFENDANT'S RIGHT TO REMAIN SILENT IN VIOLATION OF HIS FIFTH AMENDMENT RIGHT TO REMAIN SILENT, SIXTH AMENDMENT AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL

POINT VI THE DEFENDANT'S SIXTH AMENDMENT CONFRONTATION RIGHT AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL WERE VIOLATED BY THE PROSECUTOR'S EXTENSIVE USE OF CHARTS MADE BY STATE'S WITNESSES DURING THE TRIAL

POINT VII THE TRIAL JUDGE ERRED IN ADMITTING INTO EVIDENCE THE REDACTED POLYGRAPH MIRANDA WAIVER FORMS IN VIOLATION OF DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS

POINT VIII THE TRIAL JUDGE ERRED IN DENYING THE MOTION FOR A NEW TRIAL IN VIOLATION OF DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL

POINT IX NUMEROUS LEGAL ERRORS OCCURRED WHICH EITHER INDIVIDUALLY, OR IN THEIR AGGREGATE, DEPRIVED THE DEFENDANT OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL

POINT X DEFENDANT'S RIGHTS UNDER THE VIENNA CONVENTION ON CONSULAR RELATIONS (VCCR), 21 U.S.T. 71 WERE VIOLATED

Our careful review of the record leads us to conclude that these contentions are without merit and that only the following discussion is required in a written opinion. See R. 2:11-3(e)(2).

We awaited resolution by the United States Supreme Court of a decision concerning the consequences of a violation of the Vienna Convention because of the impact that opinion could have on the admission of the statements and the prosecution in this case. On June 28, 2006, the Court held that a violation of the Convention does not warrant the suppression of a statement taken from a foreign national which would be otherwise admissible in our courts of law. See Sanchez-Llamas v. Oregon, __ U.S. __, __ S.Ct. __, __ L.Ed. 2d __ (2006). Foreign nationals accused of crimes receive the protections accorded by the law of this state including that required by the federal constitution. To the extent state courts may apply their own rules of law, the Convention, which provides only for notification to the foreign national of his right to consular notification of his detention, arrest, or imprisonment, presents no basis for either requiring the suppression of evidence for noncompliance, development of independent rules of law, or departure from the law as it now stands in New Jersey with respect to all accused offenders.*fn1

See, e.g., State v. King, 372 N.J. Super. 227, 241-42 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005); State v. Homdziuk, 369 N.J. Super. 277, 288-91 (App. Div. 2004); State v. Jang, 359 N.J. Super. 85, 92-94 (App. Div.), certif. denied, 177 N.J. 492 (2003); State v. Cevallos-Bermeo, 333 N.J. Super. 181, 185-87 (App. Div.), certif. denied, 165 N.J. 607 (2000). However, as the Supreme Court made clear "[a] defendant can raise an Article 36 claim as part of a broader challenge to the voluntariness of his statements to police." Sanchez-Llamas, supra, __ U.S. __, __ S.Ct. __, __ L.Ed. 2d __ (2006) (slip op. at 15).

In this case, the Passaic County Prosecutor's Office notified the Mexican Consulate of defendant's arrest on July 28, 2000 as the Convention requires.

I.

The essential evidence at trial*fn2 revealed the following: In July 2000, defendant was an eighteen and one-half year old citizen of Mexico in the United States and living in Passaic illegally. He could not read, write, or understand the English language; however, he could read, write, and understand the Spanish language. His highest level of education was the sixth grade, which he had completed in Mexico.

Approximately two buildings away from where defendant resided with his uncle, cousins and others including Rosalva Gonzalez, lived Bernarda M. and Felicito R. and their four-month old daughter, L.R. Several others were also residing in their home, including Bernarda's son Hippolito,*fn3 age seventeen. Rosalva sometimes babysat for L.R. while Bernarda and Felicito were at work.

On the evening of July 23, 2000, at approximately 10:00 p.m., Bernarda bathed L.R. She did not notice anything unusual with L.R. at that time; nor did she notice anything unusual with L.R. when she left for work at approximately 6:30 a.m. on July 24.

Felicito woke up shortly after Bernarda left for work on July 24. He changed L.R.'s diaper, and did not notice anything out of the ordinary at that time. At approximately 7:00 a.m., Felicito dropped L.R. off at Rosalva's home, where defendant also resided.

Rose Barrera, who resided in the apartment above defendant's, stated that between 11:00 a.m. and noon on July 24, 2000, she heard a baby crying loudly for approximately twenty minutes. The sound came from the downstairs apartment. Based upon her experience as the mother of five children, Barrera believed the cries came from a baby who was younger than one year old. However, Barrera was not aware that any babies under the age of one lived in the building at the time.

L.R. was picked up from the babysitter's home on the afternoon of July 24. When they arrived home, Bernarda checked the baby's diaper and discovered blood and an injury to L.R.'s vaginal area. After Felicito arrived home from work, Bernarda showed him L.R.'s injury and the two took her to St. Mary's Hospital for treatment.

The hospital notes reflect that L.R. arrived at approximately 6:00 p.m. According to Dr. Kirnan Mariwalla, the emergency room doctor at St. Mary's Hospital, L.R. had suffered bruising and a laceration with bleeding, which extended the entire length of her perineum, from her vagina to her anus. The wound appeared "fresh," and the doctor estimated that it had been inflicted "within the past six to [ten] hours." The doctor decided to have L.R. transported to St. Joseph's Hospital, which had the pediatric surgical facilities necessary to perform a full examination and treatment of L.R.'s injuries.

The Division of Youth and Family Services ("DYFS") and the police were notified of L.R.'s injuries.

Investigator James Arnold, who was employed in the Child Abuse Unit of the Passaic County Prosecutor's Office, was assigned to the case at approximately 7:30 p.m. on July 24. Arnold coordinated with the Passaic Police Department and met Detective Milton Figueroa, a Spanish-speaking officer, at the Pediatric Intensive Care Unit of St. Joseph's Hospital in Paterson. Arnold took photographs of L.R.'s injuries, and the two officers interviewed Bernarda, with Detective Figueroa acting as interpreter.

Based upon information obtained from Bernarda, Investigators Arnold and Figueroa proceeded to the babysitter's home, arriving there after 10:30 p.m. They advised Rosalva about the subject of their investigation, and she agreed to be interviewed. She was then transported to the Passaic Police Station where she waived her Miranda rights and gave a statement.

Later the next morning, at 10:00 a.m. on July 25, 2000, Investigator Arnold returned to St. Joseph's Hospital with Investigator Hector Jiminez, a Spanish-speaking officer employed in the Child Abuse Unit of the Prosecutor's Office. Investigator Jiminez took additional photographs of L.R. while Investigator Arnold spoke with Bernarda (with the translation assistance of a ...


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