In re State

STATE OF NEW JERSEY IN THE INTEREST OF T.S.S., a Juvenile.

DOCKET NO. A-5247-15T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued January 18, 2018

April 13, 2018

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Simonelli, Rothstadt and Gooden Brown.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Nos. FJ-02-0589-16 and FJ-02-0632-16.

Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant T.S.S. (Joseph E. Krakora, Public Defender, attorney; Brian P. Keenan, of counsel and on the brief).

William P. Miller, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Dennis Calo, Acting Bergen County Prosecutor, attorney; William P. Miller, of counsel and on the brief).

PER CURIAM

After his motion to suppress his confession was denied, juvenile T.S.S., born July 23, 2000, pled guilty to committing an act of delinquency which, if committed by an adult, would constitute third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a(1), while preserving his right to appeal the denial of the motion. By way of disposition, on June 29, 2016, the Family Part judge placed T.S.S. on probation for a period of three years, subject to standard and special conditions of probation, and ordered T.S.S. to comply with the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23.¹

On appeal, T.S.S. raises the following contentions for our consideration:

POINT I

THE MOTION JUDGE ERRED IN DENYING THE JUVENILE'S MOTION TO SUPPRESS BECAUSE THE POLICE DEPRIVED HIM [OF] AN UNBIASED GUARDIAN TO REPRESENT HIS INTERESTS, AND FAILED TO ADEQUATELY INFORM HIM OF HIS RIGHTS, AND THEREFORE, HIS WAIVER WAS NOT VOLUNTARY, KNOWING AND [INTELLIGENT] UNDER THE TOTALITY OF THE CIRCUMSTANCES.

A. THE STATE FAILED TO MEET THE PRESHA² STANDARD OF REQUIRING PROOF

THAT [T.S.S.'] MOTHER WAS UNAVAILABLE OR UNWILLING TO BE PRESENT.

B. THE DETECTIVE'S FAILURE TO READ THE WAIVER SECTION OF THE MIRANDA³ FORM, USE OF DECEPTIVE AND MANIPULATIVE TECHNIQUES, AND PRESENCE OF [T.S.S.'] AUNT ACTING AS AN ASSISTANT TO THE POLICE RATHER THAN HIS PROTECTOR NECESSITATES SUPPRESSION OF HIS STATEMENT.

After reviewing the record in light of the contentions advanced on appeal, we reverse.

We glean the following facts from the evidence presented by the State at the N.J.R.E. 104(c)⁴ hearing conducted on April 25, 2016. On October 30, 2015, Detective Jennifer Rueda of the Bergen County Prosecutor's Office began an investigation into allegations that T.S.S. had taken photographs of himself inserting his tongue into the buttocks of his ten-year-old half-sister. She first contacted T.S.S.' mother, K.P., who provided a statement summarizing the discovery.

K.P. told Detective Rueda that a friend contacted her after discovering the photographs in question. After personally viewing the photographs, K.P. confronted T.S.S., who admitted to her "that he had inserted his tongue in [his sister's] buttocks and that he had taken those photographs." Detective Rueda asked K.P. if she could speak with T.S.S. However, K.P. responded that she did not know his whereabouts at the time. After the conversation with K.P., Detective Rueda contacted K.P.'s friend and obtained the photographs.

Three days later, on November 2, 2015, K.P. contacted Detective Rueda to inform her that she had located T.S.S. and was bringing him to the prosecutor's office for an interview. During this conversation, Detective Rueda explained to K.P. that "there was going to be a conflict of interest, because [K.P.] was the mother of [the victim] and the mother of [T.S.S.]." Detective Rueda explained that "in past experiences, [she has] always been instructed . . . that when we have . . . an investigation involving a sexual assault, . . . when we have . . . brother and sister, or brother and brother, the parents should not be . . . in the interview room with them." Detective Rueda asked K.P. "if she had anyone in her family that she wanted to appoint to . . . sit in . . . the interview with [T.S.S.] and [K.P.] said yes." K.P.responded that she would contact her sister, S.P., to sit in on the interview with T.S.S.

Later that day, at approximately 5:00 p.m., K.P., S.P., and T.S.S. arrived at the prosecutor's office for the interview. Detective Kevin Matthew was assigned to conduct the interview. Just prior to entering the interview room, he introduced himself to the three of them, spoke briefly about the conflict of interest, and then escorted S.P. and T.S.S. into the interview room, which he described as "a regular room with chairs, a table" and equipped with an "audio and . . . video recording device."

At 5:24 p.m., Detective Matthew, joined by North Arlington Detective Anthony Scala, initiated the video-recorded statement by activating the recording device.⁵ At the outset, utilizing the pre-printed juvenile rights form for juveniles at least fourteen-years-old,⁶ Detective Matthew administered the Miranda warnings to T.S.S. as follows:

[DETECTIVE MATTHEW]: [L]et me just go over this with you real quick. These are your right[s]. I'm sure you see on television sometimes where um, people are read their rights. What this means is that you're willing to speak with me without the presence of an attorney, okay? So I'm gonna go overthese questions with you and you're gonna answer them for me, yes or no, you understand?

[T.S.S.]: Yes.

[DETECTIVE MATTHEW]: There you go, good job. Um, okay, the first one. It says you have the right to remain silent and refuse to answer any questions, do you understand that?

[T.S.S.]: Yes.

[DETECTIVE MATTHEW]: Good. What I want you to do is take this pen and write the word yes right here on this line for the one you just answered and then put your initials here . . . . The second one says anything you say can and will be used against you in the [c]ourt; do you understand that?

[T.S.S.]: Yes.

[DETECTIVE MATTHEW]: Okay. Same thing here. Write the word yes and then put your initials here. Next one says you have the right to talk to an attorney before we ask you any questions and to have him or her present with you during questioning; do you understand this?

[T.S.S.]: Yes.

[DETECTIVE MATTHEW]: Write the word yes and put your initials here. Next one says if you cannot afford to hire an attorney, you may apply to [c]ourt and one will be appointed to represent you before any questioning; do you understand this?

[T.S.S.]: Yes.

[DETECTIVE MATTHEW]: Write the word yes and put your initials here. Uh, you may stop answering questions and request an attorney at any time; do you understand this?

[T.S.S.]: Yes.

[DETECTIVE MATTHEW]: Yes here and your initials again. Thank you. Now, what I explained to you before is basically we're gonna have a conversation in regards to an incident that happened. Um, and you said if you are willing to have a conversation with me; correct?⁷

[T.S.S.]: Yes.

Immediately after administering these Miranda warnings, the following colloquy occurred:

[DETECTIVE MATTHEW]: Okay. . . . I want you to put your date of birth on this line and I want you to circle um, I guess you have here, I do or do not want my parent or guardian present-well, she's present with you, so circle I do here, circle I do here and then sign here. Sign your name and then just put today's date is uh, 11/2/2015 and the time now is 5:27. Good job and we're gonna witness this at the bottom here-I'm sorry, this is for you, the guardian, right? I'm sorry, you are [S.P.], correct?

. . . .

Uh, [S.P.], if you can just sign for me here please. I think this is where the guardian goes and also put today's date and time and you could witness —[S.P.]: What time is 5:29?

[DETECTIVE MATTHEW]: 5:28. Thank you.⁸

Next, Detective Matthew elicited T.S.S.' pedigree information, inquired about his favorite subject in school,⁹ and then asked:

[DETECTIVE MATTHEW]: Um, we're gonna talk about an incident that happened a couple days ago, October 30th, right? You know, you know what I am talking about?

[T.S.S.]: Yeah.

[DETECTIVE MATTHEW]: Do you know why you're here?

[T.S.S.]: Uh-huh.

[DETECTIVE MATTHEW]: Tell me . . . what happened? Tell me why . . . you're here?

[T.S.S.]: Because I took a picture.

. . . .

[DETECTIVE MATTHEW]: What did you take a picture of?

[T.S.S.]: My sister.

Detective Matthew continued to question T.S.S. about the photograph, which T.S.S. admitted taking with a cell phone. When T.S.S. hesitated and became emotional about describing the photograph, Detective Matthew reassured him that he wanted T.S.S. "to be comfortable in saying whatever it is that [he] need[ed] to say" and that he "appreciate[d]" T.S.S.' willingness to speak to him because "it takes a big person to say that they have done something . . . ." At that point, S.P. interjected:

[S.P.]: Can I say something? You said you want help, right?

[T.S.S.]: Yes.

[S.P.]: Didn't we talk about this on the phone? So the first step to getting help is admitting what you did regardless of how ugly it is we told you we're by your side. We love you, but this has to be done.

Detective Matthew continued to press T.S.S. for details, reassuring him that he did not have to be afraid and explainingthat in order to "deal with it, . . . the first thing we have to do is acknowledge what the situation is . . . ." T.S.S. then admitted taking the photograph of his sister's bare buttocks, while "[he] made a gesture making it seem like [he] was licking it." T.S.S. also admitted that he pulled down her clothing to expose her buttocks and that his tongue made contact with her bare buttocks. He explained that the incident occurred at their home in October at around 9:00 p.m. or 10:00 p.m. while his sister was sleeping.

When T.S.S. indicated that...