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State v. A.M.

Superior Court of New Jersey, Appellate Division

January 23, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
A.M., Defendant-Appellant.

          Submitted February 1, 2017

         On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-08-1150.

          Jane M. Personette, attorney for appellant.

          Gurbir S. Grewal, Bergen County Prosecutor, attorney for respondent (Suzanne E. Cevasco, Assistant Prosecutor, of counsel and on the brief).

          Before Judges Fuentes, Carroll and Gooden Brown (Judge Fuentes concurring).

          FUENTES, P.J.A.D.

         A Bergen County grand jury indicted defendant A.M., charging him with first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a), second degree sexual assault, N.J.S.A. 2C:14-2(c)(4), two counts of third degree criminal sexual contact, N.J.S.A. 2C:14-3(a), and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The victim was defendant's step-granddaughter, who was fourteen years old at the time.

         The trial court denied defendant's motion to suppress an inculpatory statement he made while being interrogated by detectives from the Bergen County Prosecutor's Office (BCPO) and the Bergenfield Police Department. Defendant thereafter pled guilty to second degree sexual assault, N.J.S.A. 2C:14-2(c) (4) . Pursuant to the plea agreement, the State dismissed the remaining counts in the indictment and the court sentenced defendant to a term of six years, with an eighty-five percent period of parole ineligibility and three years of parole supervision, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant also reserved the right to appeal the denial of his motion to suppress the inculpatory statement.

         After reviewing the record developed before the motion judge and mindful of our standard of review, we reverse the trial court's order denying defendant's motion to suppress his inculpatory statement. The evidence presented by the State at the N.J.R.E. 104(c) hearing does not support the motion judge's findings that the State satisfied "the heavy burden" of proving, beyond a reasonable doubt, that defendant made a knowing, intelligent, and voluntary decision to waive his constitutional rights under Miranda.[1] See State v. Presha, 163 N.J. 304, 313 (2000). The motion judge's decision upholding the methods used by the interrogating detectives improperly shifted this burden of proof to defendant.

         I Bergenfield Police Detective Richard Ramos was the only witness who testified at the N.J.R.E. 104(c)[2] hearing to adjudicate defendant's motion to suppress. The interrogation took place on July 24, 2011, at the Bergenfield Police Headquarters. Because defendant's dominant language was Spanish, Detective Ramos, who was then a police officer, acted as defendant's interpreter. Ramos testified that the interrogation was conducted using a "combination" of English and Spanish. When the prosecutor asked Ramos to provide the motion judge "with a little bit of an idea of [his] background in the Spanish language[, ]" Ramos responded:

I grew up in a Spanish [speaking] household. Spanish was my first language spoken at home. I did study Spanish in high school, a couple courses and also in college.
Q. Have you been called upon by your police department in your capacity as a police officer to either help translate statements made in Spanish by witnesses or defendants or to provide a translation of Miranda rights in Spanish ever before?
A. Yes.
Q. And so your department has asked you to do this kind of thing before?
A. Yes.
Q. Again, how would you characterize roughly the number of times you've been called upon, rarely, often?
A. Often.

         The appellate record includes both a video recording of the interrogation and a transcript of the questions and answers. The record shows that BCPO Detective Brian Lucas and Bergenfield Police Detective Robert Boria were the two principal interrogators. Officer Ramos's role was limited to acting as an interpreter when necessary. The following colloquy captured how the interrogation was conducted.

DETECTIVE LUCAS: [N]ow, my understanding is that you . . . speak English, but you're most comfortable in Spanish?
DEFENDANT: In Spanish.
DETECTIVE LUCAS: Is that correct? Have you understood everything that I am saying so far, . where ... I work and my name and everything?
DEFENDANT: Yeah.
DETECTIVE LUCAS: Okay . . . this is Detective Robert Boria. He works for the Bergenfield Police Department and this is Officer Rich Ramos. Right?
OFFICER RAMOS: Yep.
DETECTIVE LUCAS: He also works here for Bergenfield and what he's going to do, he's [going to] help us out if you don't understand anything in English, he's [going to] be able to step in and . . . speak to you in Spanish.
DEFENDANT: Okay.

         From this point forward, the video recording shows that Officer Ramos interpreted Detective Lucas's questions to defendant from English into Spanish and defendant's answers from Spanish into English. After asking defendant a series of questions concerning his age, place of residence, and immigration status, [3] Detective Lucas gave defendant a Miranda rights waiver form written in Spanish. Lucas then gave defendant the following explanation of the significance of the form.

DETECTIVE LUCAS: All right. What I have here is, uh, your [Miranda] Rights. Do you understand what those are?
DEFENDANT: Uh-
DETECTIVE LUCAS: Okay. What these are, these are, these tell you what, uh, these, basically, the guidelines of ... us talking to one another. Okay? These are going to tell you what, what your rights are, and you have the right to an attorney, and, uh, speaking with us is voluntary. Okay? Do you understand that, what I've said so far?
DEFENDANT: Um, yeah.
DETECTIVE LUCAS: Okay. This form I have, I have one of these in English, but you said you're most comfortable in Spanish, so-
DEFENDANT: In Spanish.
DETECTIVE LUCAS: So, rather than me read it, what I'm going to ask, uh, [O]fficer Ramos to do, is if he can read you your rights in Spanish.

[Emphasis added.]

         The video recording shows Officer Ramos reading in Spanish the Miranda rights and waiver form. However, the transcript of this part of the video recording is written in English. According to the transcript, after Officer Ramos completes reading aloud the list of Miranda rights, he purportedly tells defendant to write his name and sign the waiver form. The cover page of the transcript of the video record shows it was prepared by Evelyn Mosquera, Clerk Typist, BCPO. Mosquera did not sign the transcript document or certify that it was a true and accurate translation of the audio part of the video record. The record does not contain any evidence attesting that Mosquera received any training or had any experience translating audio records.

         The only indication of the accuracy and reliability of the transcript is in Officer Ramos's testimony at the evidentiary hearing.

Q. Now, when you reviewed the videotape, were you able to compare a transcript of the discussion on the videotape with what was said on the videotape?
A. Yes.
Q. And to the best of your ability does the transcript adequately reflect what was ...

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