January 15, 2019
certification to the Superior Court, Appellate Division,
whose opinion is reported at 452 N.J.Super. 587 (App. Div.
Kennedy, Special Deputy Attorney General/Acting Assistant
Prosecutor, argued the cause for appellant (Dennis Calo,
Acting Bergen County Prosecutor, attorney; Ian C. Kennedy, of
counsel and on the briefs).
J. Neary argued the cause for respondent (Law Offices of
Brian J. Neary, attorneys; Brian J. Neary, of counsel and on
the letter briefs, and Jane M. Personette, on the letter
C. Schuster, Deputy Attorney General, argued the cause for
amicus curiae Attorney General of New Jersey (Gurbir S.
Grewal, Attorney General, attorney; Jane C. Schuster, of
counsel and on the briefs).
R. Moore, Assistant Deputy Public Defender, argued the cause
for amicus curiae Public Defender of New Jersey (Joseph E.
Krakora, Public Defender, attorney; Emma R. Moore, of counsel
and on the brief, and Joseph J. Russo, Deputy Public
Defender, on the brief).
Alexander Shalom argued the cause for amicus curiae American
Civil Liberties Union of New Jersey (American Civil Liberties
Union of New Jersey Foundation, attorneys; Alexander Shalom
and Jeanne LoCicero, on the brief).
SOLOMON, J., writing for the Court.
Court considers whether under Miranda v. Arizona,
384 U.S. 436 (1966), defendant A.M., who speaks limited
English, waived his constitutional right against
self-incrimination pursuant to the Fifth Amendment to the
United States Constitution.
was alone in his apartment with his fourteen-year-old
step-granddaughter, A.I., when he hugged her from behind,
touching her breasts and vagina over her bathing suit, and
inserted at least one finger into her vagina. After learning
of the incident, A.I.'s mother contacted the Bergen
County Prosecutor's Office. Officers went to
defendant's home and transported him to the Bergenfield
defendant spoke little English and stated that he was more
comfortable with Spanish, Detective Richard Ramos assisted in
translating the interview from English to Spanish. The entire
interview was video-recorded to a DVD and later transcribed
in English by a clerk-typist employed by the Bergen County
the interview, Detective Ramos reviewed with defendant a
Spanish-language form prepared by the Bergen County
Prosecutor's Office, which listed each of defendant's
Miranda rights and contained a waiver paragraph.
Detective Ramos read defendant his Miranda rights
from the Spanish-language form, pausing after reading each
one to ask defendant in Spanish if he understood. Defendant
replied "sí" (yes) each time and initialed
each line. Detective Ramos then handed the form to defendant
to review the waiver portion and asked in Spanish, "Do
you understand?" Defendant replied,
"Sí," and Detective Ramos told defendant to
sign in two places, which defendant did.
the course of the interrogation that followed, defendant
admitted to touching his step-granddaughter inappropriately.
A grand jury indicted defendant for multiple counts of sexual
assault and for endangering the welfare of a child.
challenged the admission of his statement to police and
Detective Ramos's translation of the interview. At the
hearing on defendant's suppression motion, Detective
Ramos testified that defendant "took his time reading
[the form]. It appears to [him] that [defendant] did read
it." Detective Ramos acknowledged that he did not ask
any questions to determine defendant's educational
background or literacy level. He also testified about
discrepancies between the video recording and the transcript
of defendant's statement and explained that he was
"paraphrasing" defendant's answers.
watching the DVD of defendant's interview, the trial
court denied defendant's motion to suppress, finding that
"defendant appeared calm during the interview, appeared
to understand the questions posed to him in both English and
Spanish, and was able to answer the questions
forthrightly." The court also explained that defendant
seemed "alert and cognizant" while the form was
explained to him and that "it [was] clear from the video
tape that defendant was given an opportunity to read the
waiver paragraph and signed the waiver portion, and did in
fact review the waiver portion before signing it."
Finally, referring to defendant's expressed preference
that the interview be conducted in Spanish, the court added
that, "[i]f defendant had any problem reading the waiver
portion of the form, written in Spanish as he had requested,
it is clear to this court that he would have voiced such
difficulty." The court concluded that, considering the
totality of the circumstances, defendant knowingly,
intelligently, and voluntarily waived his Miranda
rights. Defendant pled guilty to second-degree sexual assault
while reserving his right to appeal the denial of his motion
Appellate Division reversed, finding the State failed to
prove defendant made a voluntary decision to waive his
Miranda rights. 452 N.J.Super. 587, 590 (App. Div.
2018). The panel found that "[t]he [trial] judge's
analysis improperly shift[ed] the burden of proof to
defendant to alert the interrogating officers about any
difficulty he may be having understanding the ramifications
of a legal waiver." Id. at 599. The panel also
challenged the interrogation's transcription. See
id. at 599-600. Additionally, a concurring opinion sets
forth perceived "inherent constitutional flaws" in
relying on police officers, rather than certified neutral
translators, as interpreters during custodial interrogations.
Id. at 600-04.
Court granted the State's petition for certification. 234
N.J. 192 (2018).
Although the better practice would have been to read aloud
the form's waiver portion to defendant, the Court relies
on the trial court's well-supported observations and
factual findings and reverses the Appellate Division's
Generally, on appellate review, a trial court's factual
findings in support of granting or denying a motion to
suppress must be upheld when those findings are supported by
sufficient credible evidence in the record. In State v.
S.S., 229 N.J. 360, 381 (2017), the Court extended that
deferential standard of appellate review to "factual
findings based on a video recording or documentary
evidence" to ensure that New Jersey's trial courts
remain "the finder of the facts." (pp. 11-12)
ensure that a person subject to custodial interrogation is
adequately and effectively apprised of his rights, the United
States Supreme Court developed the Miranda warnings.
The administration of Miranda warnings ensures that
a defendant's right against self-incrimination is
protected in the inherently coercive atmosphere of custodial
interrogation. A waiver of a defendant's Miranda
rights must be knowing, intelligent, and voluntary in light
of all of the circumstances surrounding the custodial
interrogation. In the totality-of-the-circumstances inquiry,
courts generally rely on factors such as the suspect's
age, education and intelligence, advice as to constitutional
rights, length of detention, whether the questioning was
repeated and prolonged in nature and whether physical
punishment or mental exhaustion was involved. (pp. 12-15)
Court reviews the trial court's factual findings in
detail and concludes that the failure of Detective Ramos to
read the entire Miranda rights form aloud did not
"improperly shift the burden of proof to defendant to
alert the interrogating officers about any difficulty he may
be having understanding the ramifications of a legal
waiver." 452 N.J.Super. at 599. To eliminate questions
about a suspect's understanding, the entire
Miranda form should be read aloud to a suspect being
interrogated, or the suspect should be asked to read the
entire form aloud. Where that is not done, the suspect should
be asked about his or her literacy and educational
background. Nevertheless, in this case, because sufficient
credible evidence in the record supports the trial
court's findings, the Court agrees with the trial court
that the State proved beyond a reasonable doubt that
defendant made a knowing, intelligent, and voluntary express
waiver of his Miranda rights. See S.S., 229
N.J. at 365. The Court therefore does not reach the issue of
implicit waiver. (pp. 15-18)
Court notes that this case demonstrates plainly the
importance of videotaping custodial interrogations of
suspects by police. (pp. 18-19)
defendant has the right to challenge a translation under
N.J.R.E. 104(c), which governs pretrial hearings on the
admissibility of a defendant's statement. Because a
defendant has the right to contest a translation of a
custodial interrogation, as was done here, and Rule 104(c)
provides the mechanism to do so, the Court rejects the
holdings of the Appellate Division's concurring opinion.
That said, the State, as well as the defendant, is best
served by the use of a capable translator during an
interview. (p. 19)
judgment of the Appellate Division is REVERSED, and
defendant's conviction is REINSTATED.
JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join ...