Submitted February 1, 2017
appeal from Superior Court of New Jersey, Law Division,
Bergen County, Indictment No. 12-08-1150.
M. Personette, attorney for appellant.
S. Grewal, Bergen County Prosecutor, attorney for respondent
(Suzanne E. Cevasco, Assistant Prosecutor, of counsel and on
Judges Fuentes, Carroll and Gooden Brown (Judge Fuentes
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.
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
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. 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.
Bergenfield Police Detective Richard Ramos was the only
witness who testified at the N.J.R.E. 104(c) 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
Q. And so your department has asked you to do this kind of
Q. Again, how would you characterize roughly the number of
times you've been called upon, rarely, often?
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?
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.
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,  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?
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
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
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.
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.
only indication of the accuracy and reliability of the
transcript is in Officer Ramos's testimony at the
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?
Q. And to the best of your ability does the transcript
adequately reflect what was ...