On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-11-0262.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 10, 2010
Before Judges Sabatino and Ashrafi.
By our leave, the State appeals from an order suppressing defendant David Winkler's videotaped statement for violation of defendant's Fifth Amendment right against self-incrimination under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). We affirm.
Defendant was employed as a building management specialist for the New Jersey Department of the Treasury. He was responsible for managing the First Avenue Warehouse in Trenton, where the State kept surplus property including computer equipment and furniture.
On April 10, 2008, a large force of State Troopers arrested defendant at gunpoint as he came to work at 7:15 in the morning at the warehouse. The State had obtained an arrest warrant following an investigation of unauthorized disposition of State property. The State alleged that defendant and other State employees at the warehouse had sold state-owned scrap metal to an unauthorized recycling company and split the money among themselves. The State also alleged that defendant took state-owned computer equipment for his own use, or gave it to friends, family, and juvenile inmates who had worked at the warehouse.
Upon his arrest, defendant was immediately advised of his Miranda rights. Later that morning at a State Police facility, defendant was again advised of Miranda rights on videotape, and he was questioned by State Police detectives. He answered the questions, and at the end of the interview, he signed a card indicating that he had waived his rights. The State proposed to use the videotaped interview as evidence in prosecuting defendant.
In November 2008, a Mercer County grand jury indicted defendant on charges of second-degree conspiracy, N.J.S.A. 2C:5-2; two counts of second-degree official misconduct, N.J.S.A. 2C:30-2; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; and third-degree misapplication of government property, N.J.S.A. 2C:21-15.
Before trial, defendant moved to suppress his April 10, 2008 statements to the police contending that he did not voluntarily waive his Miranda rights. The trial court held a Miranda hearing at which State Trooper Vincent Greene was the only witness. The videotaped interview was also admitted in evidence.
The recorded interview began at 8:37 a.m. and lasted until 10:06 a.m. At the start, the following exchange took place between Detective Sergeant Greene and defendant:
Greene: Before asking you any questions, it's my duty to inform you of your Miranda rights. You have the right to remain silent or refuse to answer any questions. Do you understand that right?
Greene: Anything you say can be used against you in a court of law. Do you understand that?
Greene: You have the right to consult with an [attorney] and have them present before and during questioning. Do you understand that?
Greene: If you cannot afford an attorney one will be provided if you so desire prior to any questioning. Do you understand that right? Defendant: Correct.
Greene: A decision to waive these rights is not final and you may withdraw your waiver whenever you wish before and during questioning. Do you ...