STATE OF NEW JERSEY VS. ADRIAN A. VINCENTY(12-07-1294, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4451-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ADRIAN A. VINCENTY, a/k/a
ADRIAN A. VICENTE and
ADRIAN A. VICENTY,
Defendant-Appellant.
___________________________
Submitted September 28, 2016 – Decided August 17, 2017
Before Judges Fuentes and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 12-07-1294.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen W. Kirsch, Assistant
Deputy Public Defender, of counsel and on the
brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Erica M. Bertuzzi,
Assistant Prosecutor, on the brief).
PER CURIAM
A Hudson County grand jury returned Indictment No. 12-07-1294
charging defendant Adrian A. Vincenty with first degree attempted
murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a; first degree
robbery, N.J.S.A. 2C:15-1; second degree conspiracy to commit
robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-
4a; and second degree unlawful possession of a firearm, N.J.S.A.
2C:39-5b.
After the trial court denied his motion to suppress an
inculpatory statement obtained by police officers from the
Township of Weehawken, defendant entered into a negotiated
agreement with the State in which he pleaded guilty to first degree
attempted murder in exchange for the State recommending that the
court sentence him to a term of imprisonment not to exceed ten
years, with an eighty-five percent period of parole ineligibility
and five years of parole supervision as mandated by the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. Under the agreement,
defendant reserved his right to appeal the trial judge's decision
denying his motion to suppress. On March 20, 2015, a different
trial judge sentenced defendant to a ten-year term of imprisonment,
subject to the parole restrictions required by NERA.
Defendant now appeals arguing the motion judge erred when she
found defendant knowingly and intelligently waived his rights
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against self-incrimination because the two police interrogators
did not inform him of the charges filed against him before
interrogating him. After reviewing the record developed before
the trial court, we affirm.
Pursuant to N.J.R.E. 104(c), the trial court conducted
evidentiary hearings on September 19 and December 19, 2013, to
determine the admissibility of defendant's inculpatory statement.
The State presented the testimony of Weehawken Detective Jody
Brian Mera, who was one of the officers who interrogated defendant
on March 12, 2012. On that day, Weehawken Detective Thomas Glackin
asked Mera to assist him with an investigation involving the
shooting of a man that occurred nearly a year earlier on March 20,
2011. Mera explained that Glackin asked for his help because
Glackin "found out through the jail that the actor, Mr. Vincenty,
only spoke Spanish." Mera testified he "was fluent in Spanish."
That same day, Glackin and Mera interrogated defendant at the
Garden State Correctional Facility, where defendant was serving a
five-year sentence for an unrelated crime. The transcript of the
interrogation shows the detectives read defendant his Miranda1
rights before mentioning anything about the March 20, 2011
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
3 A-4451-14T3
incident. Defendant acknowledged he understood and signed the
waiver of rights form.2 The Detectives told defendant they were
there to ask him questions about a shooting that occurred at 32nd
Street and Patterson Plank Road, in which the victim was shot in
the back of the head as part of an attempted robbery.
Mera testified he explained to defendant that "the reason we
were there[.]" The transcript of the interrogation reflects that
defendant was provided with the following information after he
signed the Miranda waiver form:
There is a guy, the victim, he is walking that
night, with a gun, they try to rob him, we
don't know what exactly happen[ed] but a shot
was fired and hit him in the back of his head,
okay? The . . . man . . . did live so there
are no homicide charges, okay, but there was
a lot[] of video that night. It looks like
no one saw it, okay? In the video we saw you
[meaning defendant] and the other guy. The
problem right now [is] that we can't identify
the other guy, so at this moment on all this
paper work and video, everything, went to the
judge, and the judge already charged you. We
want the other guy, okay? If . . . you want
to talk to us, talk to us and on top of that
we also have you on video with a mask, you
2
Although the transcript of the interrogation is in English,
Glackin interrogated defendant in English and Mera interpreted for
defendant in Spanish. The transcript was based on the video
recording of the interrogation. Defendant challenged the accuracy
of Mera's interpretation and the audibility of the recording in
what the motion judge characterized as a "pseudo Driver hearing."
This refers to our Supreme Court's seminal decision, State v.
Driver, 38 N.J. 255, 287 (1962), as subsequently modified in State
v. Nantambu, 221 N.J. 390, 411 (2015). Defendant is not appealing
the motion judge's decision in this respect.
4 A-4451-14T3
dropped the mask or you threw it away, no
matter[,] . . . that mask was taken for DNA,
okay, and you came up positive. Now, you must
understand how DNA works, one person, okay,
every person is different, nobody, no, no,
(Unintelligible) it is not like they tested
him and confused him with it. Yours is yours,
mine is mine and his is his. No one else has
it. Do you understand? Okay, it was
definitely you, that's why we already have the
charges, okay? Now, if you want to talk to
us and you want to tell us, look, it was the
other guy, the other guy told me to . . . take
the gun. You want to talk to us, . . . while
we look for the other guy, okay? We'll do
what we have to do to, to see, okay? You
cooperate with us[.]
[(Emphasis added).]
Six transcript pages later, the detectives told defendant the
following specific information about the charges:
Q1: We have the charges. We have . . .
DEFENDANT: Yes but . . .
Q1: We have the charges. We have to give them
today. What? Adrian Vicente, right? Vince,
how, how do you pronounce it?
DEFENDANT: Vicentin.
Q1: Vicentin? Okay, look our judge[,] here is
his mark[.] . . . Okay? The charges, attempted
homicide, robbery. Okay?
Q2: Conspiracy to commit robbery.
. . . .
DEFENDANT: I understand, you know? I, I
didn't rob anyone. I don't know
(Unintelligible)[.]
5 A-4451-14T3
Q1: Okay. Well, look. You want to see all
the charges, here are all the charges[.]
DEFENDANT: You know, honestly, I believe
(Unintelligeble)[.]
Q2. Remember Papo, remember? "Papi, give me
all. Do not move, give me all." Remember?
Q1: Before . . . we go, look, here are your
copies. The statement copy, give it to a
lawyer, whatever you want. The charges are
already here.
[(Emphasis added).]
After reviewing this evidence and hearing oral argument from
counsel, the judge denied defendant's motion to suppress. The
judge orally delivered her reasons from the bench on May 29, 2014.
The motion judge began her analysis by specifically acknowledging
State v. A.G.D., 178 N.J. 56 (2003), in which the Court held:
Although clearly not limited by age or
immaturity, defendant was disadvantaged by a
lack of critically important information. The
government's failure to inform a suspect that
a criminal complaint or arrest warrant has
been filed or issued deprives that person of
information indispensable to a knowing and
intelligent waiver of rights.
[Id. at 68 (emphasis added).]
Mindful of this legal standard, the motion judge found
defendant's reliance on A.G.D. was "misplaced" because:
It is clear from the testimony and the
statement itself in the instant case that the
detectives informed the defendant about the
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nature of the charges before they began
questioning him about his involvement therein.
Indeed as soon as he waived his right to an
attorney[,] the detectives began discussing
the incident, that is, a shooting that had
occurred during the course of a robbery . . .
in Weehawken.
Against this record, defendant now raises the following
argument.
POINT I
DEFENDANT'S MOTION TO SUPPRESS HIS CONFESSION
SHOULD HAVE BEEN GRANTED; CONTRARY TO STATE
V. A.G.D., POLICE HAD HIM WAIVE HIS RIGHTS
PRIOR TO INFORMING HIM OF THE CHARGES THAT
WERE FILED AGAINST HIM.
We review a trial court's factual findings in support of
granting or denying a motion to suppress to determine whether
"those findings are supported by sufficient credible evidence in
the record." State v. Gamble, 218 N.J. 412, 424 (2014). Where
the motion judge determined a witness's credibility after hearing
live testimony, as she did here, we are bound to defer to the
judge's factual findings because she had the "'opportunity to hear
and see the witnesses and to have the feel of the case, which a
reviewing court cannot enjoy.'" State v. Elders, 192 N.J. 224,
244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
And as our Supreme Court recently held, we defer to a trial court's
factual findings even when those findings are "based solely on
video or documentary evidence[.]" State v. S.S., ___ N.J. ___,___
7 A-4451-14T3
(2017) (slip op. at 25). As Justice Albin explained on behalf of
a unanimous Court:
Our system of justice assigns to the trial
court the role of factfinder in matters not
relegated to the jury. Trial judges in our
Criminal Part routinely hear and decide
suppression motions in which defendants seek
to exclude evidence based on alleged
violations of the Fourth and Fifth Amendments
of the United States Constitution and
corollary provisions of our State Constitution
and common law. Our trial judges have ongoing
experience and expertise in fulfilling the
role of factfinder.
[Ibid.]
Guided by these principles, we discern no legal basis to
disturb the motion judge's factual findings. The judge had the
benefit of hearing and observing Detective Mera's testimony. She
found his account of how defendant's interrogation was conducted
credible. The motion judge also viewed the video recording of
defendant's interrogation and read the transcript which contained
the English translation of the questions and answers. The judge
found these documentary exhibits, which were admitted into
evidence at the N.J.R.E. 104(c) hearing, corroborated Mera's
testimony. We are bound to accept the motion judge's assessment
of the credibility of this evidence. State v. S.S., supra, slip
op. at 25-26.
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The Court in S.S. also addressed and reaffirmed this State's
historical commitment to an individual's right against self-
incrimination. "The right against self-incrimination is
guaranteed by the Fifth Amendment to the United States Constitution
and this state's common law, now embodied in statute, N.J.S.A.
2A:84A-19, and evidence rule, N.J.R.E. 503." Id. at 28 (quoting
State v. Nyhammer, 197 N.J. 383, 399, cert. denied, 558 U.S. 831,
130 S. Ct. 65, 175 L. Ed. 2d 48 (2009)). Most importantly, the
Court reaffirmed the standard that a reviewing court uses to
determine if a defendant asserted his right against self-
incrimination.
Any words or conduct that reasonably appear
to be inconsistent with defendant's
willingness to discuss his case with the
police are tantamount to an invocation of the
privilege against self-incrimination. In
those circumstances in which the suspect's
statement is susceptible to two different
meanings, the interrogating officer must cease
questioning and "inquire of the suspect as to
the correct interpretation." Unless the
suspect makes clear that he is not invoking
his right to remain silent, questioning may
not resume. In other words, if the police are
uncertain whether a suspect has invoked his
right to remain silent, two alternatives are
presented: (1) terminate the interrogation or
(2) ask only those questions necessary to
clarify whether the defendant intended to
invoke his right to silence.
To invoke the right to remain silent, a
suspect does not have to follow a prescribed
script or utter talismanic words. Suspects
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are mostly lay people unschooled in the law.
They will often speak in plain language using
simple words, not in the parlance of a
constitutional scholar. So long as an
interrogating officer can reasonably
understand the meaning of a suspect's words,
the suspect's request must be honored.
[Id. at 29-30 (citations omitted).]
Here, the record supports the motion judge's finding that
defendant was fully informed of his right to remain silent, waived
that right, and was apprised of the charges pending against him
before he decided to cooperate with the investigation and provide
self-incriminating information. The record supports the motion
judge's finding that the interrogating officers did not violate
the Court's holding in A.G.D.
Affirmed.
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