STATE OF NEW JERSEY VS. J.R.T., JR.  (91-11-1280 AND 10-02-0149, PASSAIC COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-5156-13T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.R.T., Jr.,
Defendant-Appellant.
____________________________
Submitted September 27, 2016 – Decided June 16, 2017
Before Judges Kennedy and Gilson.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County,
Indictment Nos. 09-11-1280 and 10-02-0149.
Joseph E. Krakora, Public Defender, attorney
for appellant (Elizabeth C. Jarit, Assistant
Deputy Public Defender, of counsel and on the
brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Robert J. Wisse,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Following the denial of his motion to suppress his statements
to a law enforcement officer, defendant J.R.T., Jr. pled guilty
to two counts of second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a). He was sentenced in accordance with his plea
agreement to concurrent terms of nine years in prison. Defendant
appeals the denial of his motion to suppress and his sentences.
We affirm.
I.
In 2009, the Passaic County Prosecutor's Office (PCPO)
received information that defendant had allegedly sexually
assaulted his two children. The assaults reportedly occurred a
number of years earlier, between 1994 and 2004, when the children
were less than thirteen years of age.
A detective with PCPO opened an investigation. Initially,
the detective spoke with both children. On November 13, 2009, the
detective went to where defendant resided and asked him to come
to PCPO for an interview. Defendant agreed.
The interview was video and audio recorded. At the beginning
of the interview, the detective read defendant his Miranda1 rights.
Defendant stated that he understood each of his rights and he
agreed to speak with the detective.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2 A-5156-13T1
During the interview, the detective told defendant that he
wanted defendant to respect him and he would respect defendant.
The detective stated:
I want to talk about certain things, one of
the things I want you to know is, between these
four walls, just like, when we went to your
house, [inaudible] treated you with respect,
you treated me with respect, and I hope and
expect to receive the same in this room.
Between these four walls, you know? I'm gonna
respect you and at the very least I would
expect to receive the respect back too.
Later in the interview, the detective told defendant:
This is your chance now. This is like an open
forum. This is almost like going to church,
you have the podium, you air it out. Like
going to drug counseling where you state your
name and [say] you have a problem.
Thereafter, defendant made incriminating statements concerning the
sexual assaults of his children.
In 2010, a grand jury indicted defendant on six counts of
sexual assault and endangering the welfare of his two children.
With regard to his daughter, defendant was indicted for first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-
degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a). With
regard to his son, defendant was indicted for second-degree
attempting to commit aggravated sexual assault, N.J.S.A. 2C:5-1
and N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A.
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2C:14-2(b); and second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a).
Defendant moved to suppress the statements that he had given
to the detective. An evidentiary hearing was held, during which
the detective was the only witness. The State also submitted into
evidence a DVD containing the recorded interview between defendant
and the detective.
After hearing the detective's testimony and reviewing the
video recording of the interview, the court denied the motion to
suppress the statements. The court found that defendant had been
given his Miranda warnings, defendant understood his rights, and
defendant voluntarily agreed to speak with the detective. The
court then found that the detective's statements to defendant,
when viewed in the totality of the circumstances, did not
contradict or undermine the Miranda warnings. Specifically, the
court found that the detective's statements did not amount to a
promise or assurance that any statement made by defendant would
be treated as off the record, secret, or confidential. On April
21, 2011, the court entered an order denying defendant's motion
to suppress his statements.
In June 2011, defendant pled guilty to two counts of second-
degree endangering the welfare of his children. Defendant had
also previously pled guilty to third-degree possession of heroin,
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N.J.S.A. 2C:25-10(a)(1). On March 14, 2014, defendant was
sentenced on all three convictions.2 In accordance with his plea
agreement, defendant was sentenced to nine years in prison on each
of the convictions for second-degree endangering the welfare of a
child. Those sentences were run concurrent. Defendant was also
sentenced to three years in prison for the conviction for third-
degree possession of heroin. That sentence was run concurrent to
the sentences for the second-degree convictions.
II.
On appeal, defendant raises two arguments:
POINT I – BECAUSE THE POLICE CONVEYED TO
[J.R.T.] THAT HIS STATEMENTS WOULD BE
CONFIDENTIAL, HIS STATEMENT WAS
UNCONSTITUTIONALLY OBTAINED, REQUIRING
SUPRESSION
POINT II – BECAUSE THE COURT CONSIDERED
[J.R.T.'s] ADDICTION IN AGGRAVATION,
NEGLECTED TO CONSIDER MEDICAL RECORDS
SUBSTANTIATING MITIGATING FACTOR ELEVEN, AND
CONDUCTED A QUANTITATIVE RATHER THAN
QUALITATIVE ANALYSIS, A REMAND FOR
RESENTENCING IS REQUIRED
2
The record does not explain why there was almost a three-year
gap between when defendant pled guilty in June 2011, and his
sentencing in March 2014. Defendant did move to withdraw his
guilty plea to the second-degree endangering the welfare of
children indictments, but that motion was denied. The denial of
the motion to withdraw the guilty plea has not been challenged on
this appeal and we deem that issue to be waived and abandoned.
See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 155
n. 2 (App. Div. 2005) (citing In re Certification of Need of
Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48 n. 1 (App.
Div. 1989)).
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We are not persuaded by either of these arguments, and we
will address them in turn.
A. The Motion to Suppress
The Fifth Amendment of the United States Constitution
guarantees all persons with the privilege against self-
incrimination. U.S. Const. amend. V. This privilege applies to
the states through the Fourteenth Amendment. U.S. Const. amend.
XIV; Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229,
1233, 14 L. Ed. 2d 106, 110 (1965). Moreover, in New Jersey,
there is a common law privilege against self-incrimination, which
has been codified in statutes and rules of evidence. N.J.S.A.
2A:84A-19; N.J.R.E. 503; State v. Reed, 133 N.J. 237, 250 (1993).
Accordingly, it has long been established that when a person is
taken into custody or otherwise deprived of his or her freedom,
that person is entitled to certain warnings before he or she can
be questioned. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
After receiving Miranda warnings, a suspect may knowingly
and intelligently waive these rights and agree to answer questions
or make statements. Ibid. The State, however, must establish
beyond a reasonable doubt that a waiver of the Miranda rights was
intelligent, voluntary, and knowing. State v. Nyhammer, 197 N.J.
383, 400-01, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed.
6 A-5156-13T1
2d 48 (2009); State v. Presha, 163 N.J. 304, 313 (2000); State v.
Galloway, 133 N.J. 631, 654 (1993).
In determining whether a statement is voluntary, courts
consider the totality of the circumstances, including the
characteristics of the accused and the details of the questions.
State v. Knight, 183 N.J. 449, 462-63 (2005) (citing Galloway,
supra, 133 N.J. at 654). "Relevant factors include the defendant's
age, education, intelligence, advice concerning his [or her]
constitutional rights, length of detention, and the nature of the
questioning . . . ." State v. Bey, 112 N.J. 123, 135 (1988)
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct.
2041, 2047, 36 L. Ed. 2d 854, 862 (1973)).
When reviewing a trial court's decision on a motion to
suppress statements, appellate courts generally defer to the fact-
findings of the trial court when they are supported by sufficient
credible evidence in the record. See Nyhammer, supra, 197 N.J.
at 409 (citing State v. Elders, 192 N.J. 224, 243-44 (2007)); see
also State v. W.B., 205 N.J. 588, 603 n.4 (2011) ("As the finding
of compliance with Miranda and voluntariness turned on factual and
credibility determinations, we need only find sufficient credible
evidence in the record to sustain the trial judge's findings and
conclusions." (citing Elders, supra, 192 N.J. at 242-44)).
Moreover, we defer to a trial court judge's findings "which are
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substantially influenced by [the judge's] opportunity to hear and
see the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy[.]" State v. Davila, 203 N.J. 97,
109-10 (2010) (quoting State v. Johnson, 42 N.J. 146, 161-62
(1964)).
When a defendant's statement is videotaped, however, and "the
trial court's factual findings are based only on its viewing of a
recorded interrogation that is equally available to the appellate
court . . ., deference to the trial court's interpretation is not
required." State v. Diaz-Bridges, 208 N.J. 544, 566 (2012). We
review de novo the trial court's legal conclusions that flow from
established facts. See State v. Mann, 203 N.J. 328, 337 (2010).
Here, defendant contends that the detective made two
statements that effectively assured defendant that any statements
he made would be confidential. The trial court, however, rejected
that argument and found that the detective's statements did not
convey an assurance of confidentiality.
In the first statement, the detective referenced the
interview taking place "[b]etween these four walls[.]" The trial
court found that the statement was made in the context of the
detective telling defendant that he would respect defendant and
that he wanted defendant to respect him. Moreover, the trial
court also found that when the detective made that statement, the
8 A-5156-13T1
detective also told defendant that he would have to speak with his
superiors. Thus, the trial court found that when viewed in the
totality of the circumstances, the statement by the detective was
not an assurance of confidentiality.
In the second statement, the detective told defendant that
it was his chance to speak at "an open forum," similar to church,
or at drug counseling. While the trial court did not directly
address that statement, the court did find that all of the
detective's statements had to be viewed in the totality of the
circumstances and that none of the statements by the detective
gave defendant an assurance of confidentiality.
Having reviewed the record and considered the arguments of
defendant, we discern no error in the trial court's findings.
Defendant was given his Miranda warnings. Defendant understood
those warnings and then voluntarily and intelligently agreed to
speak with the detective. Thereafter, nothing the detective said
to defendant undercut or contradicted the Miranda warnings when
viewed in the totality of the circumstances. Accordingly, we
affirm the denial of the motion to suppress.
In arguing that the detective's statements violated his Fifth
Amendment rights, defendant relies on this court's decision in
State v. Pillar, 359 N.J. Super. 249 (App. Div.), certif. denied,
177 N.J. 572 (2003). The facts in Pillar, however, are
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distinguishable from the facts of this case. The defendant in
Pillar was charged with sexually abusing a child. Id. at 257.
When questioned by a detective, defendant invoked his right to
have an attorney before providing a statement. Id. at 262. The
defendant then stated that he wanted to "say something 'off-the-
record.'" Ibid. After the detective agreed to listen, the
defendant confessed to fondling the minor victim. Ibid. Given
those facts, we held that "the statement, made immediately
following administration of Miranda warnings and after an
assurance from an officer that defendant could make a statement
'off-the-record,' was not only obtained in violation of Miranda
but was involuntary." Id. at 257. In this case, defendant never
requested an attorney. Moreover, the detective did not agree to
speak with defendant off the record.
The facts in this case are also distinguishable from the
facts in State v. Puryear, 441 N.J. Super. 280 (App. Div. 2015).
The two defendants in Puryear each made certain incriminating
statements to the police while in custody. Id. at 287-88. Before
making those statements, the police provided incorrect and
misleading advice that effectively neutralized the Miranda
warnings. Id. at 288-290. Specifically, a detective told
defendant Puryear that he could not hurt himself by giving the
statement prior to administering the Miranda warnings. Ibid. In
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defendant Brown's case, after he was provided with the Miranda
warnings, Brown asked a detective what it meant that his statement
could be used against him in a court of law. Ibid. A detective
told Brown that it meant that if Brown lied, his statement could
be used against him. Ibid. Under the totality of the
circumstances, we found that the State failed to prove that the
defendants in Puryear completely understood all of their Miranda
rights. Id. at 297. Here, as the trial court found, defendant
understood his rights and waived those rights. The statements
made by the detective did not undermine or contradict the Miranda
warnings.
B. The Sentences
Defendant contends that the sentencing court improperly found
certain aggravating factors by considering defendant's history of
drug addiction. Defendant also contends that the court failed to
consider his medical records in evaluating mitigating factors.
Finally, defendant contends that the sentencing court engaged in
a quantitative, rather than a qualitative, analysis and failed to
articulate the weight afforded to each of the aggravating and
mitigating factors.
We review sentencing decisions for an abuse of discretion.
State v. Blackmon, 202 N.J. 283, 297 (2010). Accordingly, if a
sentencing court finds and balances the aggravating and mitigating
11 A-5156-13T1
factors based on competent, credible evidence in the record and
imposes a sentence within the range established by statute, we
will generally affirm such a sentence unless it shocks the judicial
conscience. State v. Fuentes, 217 N.J. 57, 70 (2014).
Furthermore, when a defendant receives the sentence he bargained
for, a presumption of reasonableness attaches to that sentence.
Id. at 70-71.
In sentencing defendant here, the court found aggravating
factors three, the likelihood that defendant would commit other
crimes, N.J.S.A. 2C:44-1(a)(3), and nine, the need to deter,
N.J.S.A. 2C:44-1(a)(9). The court amply explained the factual
basis for those findings. The court also did not inappropriately
consider defendant's past use of illegal drugs.
The sentencing judge then found mitigating factor eleven,
excessive hardship, N.J.S.A. 2C:44-1(b)(11). The court explained
that the aggravating factors preponderated over the mitigating
factor.
Having appropriately evaluated the aggravating and mitigating
factors, the court imposed the sentence agreed to in the plea
agreement. We find no error or abuse of discretion in defendant's
sentences.
Affirmed.
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