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State ex rel. A.A.

Superior Court of New Jersey, Appellate Division

July 31, 2018


          Submitted April 11, 2018

          On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FJ-09-118-17.

          Joseph E. Krakora, Public Defender, attorney for appellant A.A. (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the briefs).

          Esther Suarez, Hudson County Prosecutor, attorney for respondent State of New Jersey (Luisa M. Florez, Assistant Prosecutor, on the brief).

          Before Judges Fuentes, Koblitz and Manahan.


          MANAHAN, J.A.D.

         This case presents a novel issue in the context of self-incrimination. The issue is whether it is incongruous to require the presence of a parent prior to a waiver of Miranda[1] rights to safeguard a juvenile's right against self-incrimination, yet allow police eavesdropping on the parent-child communication that proves antithetical to that right.

         A.A.[2] appeals from an adjudication of delinquency for conduct which, if committed by an adult, would constitute a crime. A.A. was originally charged with attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1; possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); and possession of a firearm by minors, N.J.S.A. 2C:58-6.1. Following a hearing, A.A. was adjudicated delinquent on two counts of second-degree aggravated assault as lesser-included offenses of attempted murder, possession of a weapon for an unlawful purpose, unlawful possession of weapons, and possession of firearms by minors. The disposition was to a two-year custodial term at the New Jersey Training School for Boys.

         We derive the following facts from the hearing record. At approximately 9:15 p.m. on July 7, 2016, two individuals suffered non-life-threatening gunshot wounds to the leg as the result of a street shooting which took place on Wilkinson Avenue in Jersey City. On that date and time, Jersey City Police Officer Joseph Labarbera was on duty with another officer. While operating an unmarked vehicle, Labarbera observed three African American males on bicycles traveling northbound on Bergen Avenue. Labarbera lost sight of the cyclists after they made a right turn onto Wilkinson Avenue. Seconds later, Labarbera heard gun shots. Labarbera reported the incident over his police radio. The report included his observation of the three African American males on bicycles turning down Wilkinson Avenue just prior to the shooting.

         Detective Teddy Roque of the Hudson County Prosecutor's Office responded to the report of gunshots fired. While en route to the scene, Roque passed two African American males riding tandem on a bicycle. After Rogue heard the report regarding African American males on bicycles involved in the shooting, he drove to the area of Garfield Avenue where he again observed the two males and conducted a stop.

         Labarbera responded to the location of the stop. When Labarbera arrived, he recognized one of the individuals as A.A., a juvenile whom he had arrested on prior occasions for curfew violations. Labarbera also identified A.A. and the other juvenile as two of the three cyclists he observed in the Wilkinson Avenue location just prior to the shooting.

         After they were detained, police conducted a search of both A.A. and the other juvenile and the area where Roque first observed the juveniles. Neither search resulted in anything of evidentiary value. A more extensive search was conducted by officers with K-9 units, which recovered shell casings and a projectile in the area where the shooting occurred.[3] A.A. was taken into custody, transported to the juvenile detention center and placed in a holding cell.

         On October 27, 2016, the court held a N.J.R.E. 104(c) hearing on the State's motion to admit statements made by A.A. to his mother while being held at the juvenile detention center. During the hearing, Jersey City Detective Joseph Chidichimo testified that he contacted A.A.'s mother relative to his detention. Upon the mother's arrival at what Chidichimo described as "the Jersey City Police Department, juvenile building," Chidichimo advised her about the incident and A.A's alleged involvement. According to Chidichimo, the mother became very emotional and asked to speak with A.A. Chidichimo permitted A.A. to speak to his mother from a room opposite the holding cell.[4] Chidichimo stated he was located approximately ten-to-twelve feet away from the holding cell and overheard A.A.'s mother ask him if he was on Wilkinson Avenue. A.A. responded, "Yes, I was on Wilkinson." Chidichimo then overheard A.A.'s mother ask him, "Why?" to which he responded, "Because they jumped us last week." Chidichimo acknowledged that, although trained to read Miranda warnings prior to questioning a suspect, he did not read A.A. his warnings as he originally intended prior to overhearing the statement.[5]

         At the conclusion of the hearing, the judge held that A.A.'s statement was admissible. The judge reasoned that the statement was not the result of police interrogation and, therefore, Miranda was not implicated.

         The trial commenced immediately following the decision on the motion and took place over three days. The State's proofs included the testimony of Labarbera and Rogue, the statement of A.A. and a surveillance video of the scene. The video depicted three individuals riding bicycles in a single file formation. The third cyclist pulled what appeared to be a gun from his waist area with his left hand which was followed by flashes of light.[6] At trial, Labarbera and Rogue provided their version of the events consistent with their N.J.R.E. 104 hearing testimony.

         At the conclusion of the trial, the judge stated that "the video is one of the strongest items in evidence that satis[fies] me that those three individuals that were riding together . . . act[ed] in concert." The judge added that after careful review of the video he "saw [] a coordinated movement[] that [was] almost like a formation for a plan . . . of attack." The judge further held that just before the shots were fired, the cyclists "accelerate, they put their head down and they keep . . . the same formation. One behind the other in this symmetry, [w]hich indicated to me that this was planned precisely to be able to carry out what happened." Further, the judge stated that because the cyclists acted in concert, they acted as "accomplices" to one another. The judge determined that A.A. was one of the three cyclists based upon Labarbera's identification, and that the statements made by A.A. to his mother established a motive for the shooting. Based upon these findings, the judge adjudicated A.A. delinquent.

         On appeal, A.A. raises the following points:


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