STATE OF NEW JERSEY VS. JAMAINE L. COLE (17-04-0550, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2307-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAINE L. COLE,

Defendant-Appellant.
________________________

Argued May 10, 2021 – Decided June 22, 2021

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 17-04-0550.

Brian J. Yarzab, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Brian J. Yarzab, on the briefs).

Deepa S. Jacobs, Assistant Prosecutor, argued the cause
for respondent (Mark Musella, Bergen County
Prosecutor, attorney; William P. Miller, of counsel;
Catherine A. Foddai, Legal Assistant, on the briefs).

Appellant filed pro se supplemental briefs.
PER CURIAM

A jury found defendant Jamaine L. Cole guilty of six counts of a seven-

count indictment alleging that he conspired with others to commit a burglary

and robbery. After his trial, defendant was sentenced to an aggregate term of

twenty-seven years in prison, with an eighty-five percent period of parole

ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appeals from his conviction, arguing the following points:

POINT I

THE TRIAL COURT COMMITTED PLAIN ERROR
IN CHARGING THE JURY ON DEFENDANT'S
LIABILITY AS A CONSPIRATOR. THE CHARGE
FAILED TO EXPRESSLY ACKNOWLEDGE THE
STATE'S CONCESSION THAT THE WRONG
APARTMENT WAS BURGLARIZED, AND
UTTERLY FAILED TO POINT OUT TO THE JURY
PORTIONS OF DEFENDANT'S STATEMENT
EMPHASIZING THAT THE EVENTS THAT
OCCURRED IN THE VICTIMS' APARTMENT
WERE NEVER CONTEMPLATED BY
DEFENDANT. THE COURT'S FAILURE TO
EMPHASIZE THAT THE WRONG APARTMENT
WAS BURGLARIZED OR TO EXPLAIN THE LAW
OF CONSPIRACY IN THE CONTEXT OF THE
FACTUAL RECORD, DEPRIVED DEFENDANT OF
A FAIR TRIAL. (ISSUE NOT RAISED BELOW.)

2 A-2307-18
 POINT II

DEFENDANT'S REPEATED REQUEST TO SPEAK
WITH HIS GIRLFRIEND BECAUSE HE "NEEDS
SOME ADVICE" AND "I JUST DON'T
UNDERSTAND," A REQUEST THAT BEGAN
IMMEDIATELY FOLLOWING DEFENDANT'S
SIGNING OF THE [MIRANDA 1] WAIVER,
COMBINED WITH THE INVESTIGATING
DETECTIVE'S MISREPRESENTATION TO
DEFENDANT THAT IF HE SPOKE WITH HER "SHE
GETS CALLED TO BE A WITNESS"
DEMONSTRATES THAT DEFENDANT'S
ATTEMPT TO INVOKE HIS RIGHT TO SILENCE
WAS OBSTRUCTED BY POLICE AND THAT HIS
ATTEMPTED INVOCATION OF HIS RIGHT TO
REMAIN SILENT WAS NOT SCRUPULOUSLY
HONORED.

POINT III

THE TRIAL COURT'S REFUSAL TO ALLOW
CROSS-EXAMINATION OF THE MALE VICTIM
ABOUT HIS DELIBERATE MISTRANSLATION OF
HIS WIFE'S TESTIMONY DESCRIBING ONE
INTRUDER AND REFUSAL TO ALLOW CROSS-
EXAMINATION OF BOTH ADULT VICTIMS ON
WHETHER THEIR TESTIMONY WAS
INFLUENCED BY THE BERGEN COUNTY
PROSECUTOR'S OFFICE'S SUBMISSION OF AN
INDISPENSABLE CERTIFICATION SUPPORTING
THEIR U VISA APPLICATION CONSTITUTED
REVERSIBLE ERROR.

1
Miranda v. Arizona, 384 U.S. 436 (1966).

3 A-2307-18
 POINT IV 2

SINCE THE PROCEDURES FOR APPLYING FOR A
TELEPHONIC ARREST WARRANT WERE NOT
COMPLIED WITH, AND DID NOT SATISFY THE
PROBABLE CAUSE STANDARD, THE "TOTALITY
OF THE CIRCUMSTANCES" REQUIRES THE
INVALIDATION OF THE ARREST WARRANT
AND [DEFENDANT'S] CUSTODIAL STATEMENT
BE SUPPRESSED.

We are unpersuaded by defendant's arguments and affirm his conviction.

I.

The relevant facts leading to defendant's arrest and conviction as

developed at trial are summarized as follows. On the night of December 11,

2016 into the early morning hours of December 12, 2016, the victims, Eric, 3 the

husband, Mary, the wife, and Kyle, their five-year-old son, were asleep in their

apartment in Mary and Eric's room.

During the night of the incident, Mary woke up after hearing a loud noise.

She could not tell where the noise was coming from, so she went to the kitchen

but did not see anything and went back to their bedroom. A minute or two later,

2
We have renumbered defendant's pro se argument to avoid confusion.
3
Because defendant was convicted of endangering the welfare of a child, we
use a fictitious name to refer to the child. N.J.S.A. 2A:82-46. To adequately
protect his identity, we also use pseudonyms to refer to his parents. R. 1:38-
3(b)(9).

4 A-2307-18
she heard another noise, this one much louder than the first, making her believe

something had broken. This time, she got scared and woke her husband up. Eric

got up and walked to the kitchen and she followed behind him. Once outside

their bedroom, Mary "saw that a man was getting up with a mask and a pistol."

She was unable to see his face because he had a mask on but saw that he had a

gun aiming at them. She ran back to their bedroom and hid under the covers

with Kyle tucked to her chest.

Eric remained in the kitchen. The man, who was taller than Eric and

wearing a red hooded sweatshirt and ski mask, asked Eric several times where

the money and the weed were. He was carrying a black handgun, of the type

that "police have." Eric began to retreat into the hallway, where the person

pushed him into the bathroom and began to kick Eric and hit him with the gun.

Eric did not see another person, but he heard other voices, asking where the

money and the weed were. Eric believed this went on for about three or four

minutes.

While hiding in the bedroom, Mary heard noises in the hallway, but she

could not understand what the voices were saying because she did not speak

English fluently. While she was in bed holding Kyle, a man came into the room

with a gun aimed out in front of him, when he entered, Mary made a "noise"

5 A-2307-18
because she was scared, and the man turned to her and Kyle and aimed the gun

at them. The man went towards Kyle's bedroom, which was connected to his

parents' room, and was saying something in English. She could tell from his

tone of voice that he was "asking where something was," and that "he wanted

something."

The man went through the computer desk drawers, Mary's dresser

drawers, and after finding nothing but paper and clothing, threw the objects that

were on top of her dresser onto the floor. She could not see his face because he

was wearing a mask and only saw that he was wearing a black sweatshirt with a

hood. Another person stood in the doorway and the two intruders began talking,

but Mary did not know what they said.

After the intruders left, Eric went upstairs to the portion of the house

where the owner lived and told him what had just occurred. The homeowner's

wife then called the police. Detective David Esposito of the Lodi Police

Department responded to the scene. Upon his arrival, he noticed two home

security cameras mounted on the house. Esposito spoke with the homeowner

and the homeowner's son and reviewed the footage from the videos with help

6 A-2307-18
from the son. 4 From the surveillance footage, neither Esposito, the homeowner,

nor the homeowner's son could identify any of the four individuals depicted.

Detective Joseph Savino with the Bergen County Sheriff's Office also

responded to the scene. According to Savino, the points of entry into the home

appeared to be a pushed in air conditioner unit and the entrance door to the

basement apartment. During his investigation, he recovered a partial handprint

from the air conditioning unit. At trial, the parties stipulated to the fact that the

palm print from the air conditioning unit matched defendant's palm print, which

the police already had on file.

Meanwhile, Esposito spoke with the victims at the police headquarters.

Because Mary could not speak English well, Eric interpreted her account of the

event for Esposito. After obtaining the victims' statements, Esposito applied for

an arrest warrant. In the affidavit of probable cause, Esposito wrote that

defendant entered the victims' home by pushing in an air conditioner and then

pushing the victim to the ground, pointed a firearm at him, and attempted to

strike the victim in the head. Esposito also wrote that defendant asked where

the weed and money were, and that a firearm was also pointed at the victim's

4
We note that, as adduced at the trial, the homeowner's son was a suspected
drug dealer and believed to be the actual target of the robbery.

7 A-2307-18
wife and five-year-old child. Based on this information, a Municipal Court

Judge signed the arrest warrant for defendant and the police arrested him ten

days later.

On the day of defendant's arrest, Detective Frank Gallucci with the Bergen

County Prosecutor's Office interviewed defendant. During the interrogation,

defendant admitted to being at the scene, but denied going into the house and

said he only saw one person go inside but did not know the name of that person.

He stated many times that he did not condone aiming a gun at a child and he

also explained that he was not involved beyond pushing in the air conditioning

unit.

A grand jury later returned an indictment charging defendant with two

counts of first-degree robbery, N.J.S.A. 2C:15-1; and one count of the following:

second-degree conspiracy to commit armed burglary and/or armed robbery,

N.J.S.A. 2C:5-2; second-degree burglary, N.J.S.A. 2C:18-2; second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(a); and third-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2).

8 A-2307-18
 Before his trial, defendant filed a motion to suppress his custodial

statement, which was denied after a hearing. His motion for reconsideration was

also denied.

During trial, Gallucci testified regarding the investigation and his

interrogation of defendant. The State also played defendant's statement for the

jury. Gallucci confirmed that he believed the target of the robbery was a

suspected drug dealer, related to the homeowner. He also testified that he

identified defendant as one of the individuals on the surveillance footage after

reviewing it.

After the State rested, defendant made a Reyes 5 motion, which was

denied. The jury convicted defendant of all counts except count six, unlawful

possession of a weapon. Thereafter, the judge sentenced defendant and entered

his judgment of conviction. This appeal followed.

II.

We begin our review by addressing defendant's challenge, raised for the

first time on appeal, to the conspiracy instruction given by the trial court.

Defendant argues this instruction constituted plain error because the court did

not adequately explain the issue of foreseeability, did not emphasize that the

5
State v. Reyes, 50 N.J. 454, 458-59 (1967).

9 A-2307-18
wrong apartment was burglarized, and did not remind the jury of defendant's

statement, specifically that he never entered the house and would not have

allowed anyone to point a gun at a child.

In instructing the jury on conspiracy liability, without any objection by

defendant, the trial court explained that "a person is guilty of an offense if it is

committed by his own conduct or by the conduct of another person for which he

is legally accountable or both." It further explained that a person is legally

accountable for the actions of another "when he is engaged in a conspiracy with

such other person and the conduct is within the scope of the conspiracy or a

reasonably foreseeable . . . consequence of the conspiracy." The act cannot be

"too far removed or too remote" from the objectives of the original conspiracy.

The court further explained:

[Y]ou must decide whether defendant engaged in
a conspiracy with others to commit the crimes of armed
robbery or burglary. You must . . . also consider
whether the robbery of [Eric, Mary, and Kyle], and the
endangering of [Kyle] were objectively foreseeable and
reasonably anticipated results of the original conspiracy
or whether the commission of these offenses is beyond
the scope of the conspiracy.

A reasonably foreseeable consequence means
one which under all the circumstances presented a
reasonable person would foresee. The law does not
require that . . . defendant actually recognized or
subjectively believed that the robbery of [Eric, Mary,

10 A-2307-18
 and Kyle] and the abuse of [Kyle] were foreseeable
consequences of the conspiracy to commit armed
robbery or burglary.

The test is an objective one. That is whether
under the circumstances a reasonable person would
foresee the robberies and endangering as real potential
consequences of the conspiracy to commit armed
robbery and armed burglary.

[(Emphasis added).]

Because defendant raised his challenge to the jury instruction for the first

time on appeal, we review his argument for plain error. R. 2:10-2. "Plain error

refers to any error 'clearly capable of producing an unjust result.'" State v.

Montalvo, 229 N.J. 300, 320-21 (2017) (quoting R. 2:10-2). When there is no

objection at the time a jury instruction is given, "there is a presumption that the

charge was not error and was unlikely to prejudice the defendant's case." State

v. Singleton, 211 N.J. 157, 182 (2012).

To succeed in those circumstances, a defendant must establish: (1) "legal

impropriety in the charge prejudicially affecting [his or her] substantial rights"

and (2) an error "sufficiently grievous to justify notice by the reviewing court

and to convince the court that of itself the error possessed a clear capacity to

bring about an unjust result." State v. Chapland, 187 N.J. 275, 289 (2006)

(quoting State v. Hock, 54 N.J. 526, 538 (1969)); see also Montalvo, 229 N.J. at

11 A-2307-18
321. Any alleged plain error "must be evaluated 'in light of the overall strength

of the State's case.'" State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)

(quoting State v. Galicia, 210 N.J. 364, 388 (2012)).

When instructing the jury, "[t]he trial court must give 'a comprehensible

explanation of the questions that the jury must determine, including the law of

the case applicable to the facts that the jury may find.'" State v. Baum, 224 N.J.

147, 159 (2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "Thus,

the court has an 'independent duty . . . to ensure that the jurors receive accurate

instructions on the law as it pertains to the facts and issues of each case,

irrespective of the particular language suggested by either party.'" Ibid.

(alteration in original) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)).

Applying these guiding principles, we are unpersuaded by defendant's

arguments. Here, there is no legal impropriety in the instructions, as the trial

court specifically explained that to be guilty of conspiracy, defendant did not

need to actually contemplate the endangering of Kyle or the robbery of the

victims at the time he agreed with the others to commit a robbery and burglary.

The trial court properly explained that the question of foreseeability was an

objective question, thus, it was not necessary for the court to emphasize that

12 A-2307-18
defendant stated that he did not condone pointing a gun at a child or that he

never entered the apartment.

Defendant urges that the jury should have been reminded of these facts

and that the wrong apartment was burglarized, but they are irrelevant to the

objectivity standard underlying foreseeability. The question the jury had to

answer was not whether defendant specifically contemplated these outcomes,

but whether those actions were reasonably foreseeable at the time defendant and

others entered into the decision to burglarize the home. See State v. Bridges,

133 N.J. 447, 466-67 (1993) (explaining a co-conspirator may be liable for not

only acts within the scope of the conspiracy, but also for any criminal acts that

were "reasonably foreseeable as the necessary or natural consequences of the

conspiracy"). We ascertain no error in the trial court's explanation of co-

conspirator liability.

III.

Next, we consider defendant's challenge to the denial of his motion to

suppress his custodial statement to police. Defendant argues that his request to

speak to his girlfriend at the beginning of the interview constituted an invocation

of his right to remain silent and as such, the statement should have been

suppressed. We disagree.

13 A-2307-18
 A.

At the pretrial suppression hearing, the State presented Gallucci, who

explained his experience with gang investigations. He understood that whenever

"a co-defendant or a suspect or somebody who associates themselves with a gang

even speaks to a police officer or a cop, it's considered a major violation."

Gallucci believed there was a "general reluctance" for people in those positions

to speak with law enforcement.

Prior to his interview of defendant, he had information that defendant was

an "associate or member" of the Bloods gang, and he had "every reason to

believe that [defendant] had knowledge of gang activity taking place in

Englewood." 6 On the day defendant was arrested, Gallucci went to the

interrogation room and began speaking with defendant, but did not turn on the

audio recording because he wanted to first see if defendant would cooperate with

law enforcement regarding the gang violence. This non-audio recorded

conversation lasted about twenty-seven minutes.

6
Gallucci explained that there were approximately thirty shootings in the
eighteen months prior to defendant's arrest. He also explained that this was an
"extreme amount" for "any Bergen County municipality." These shootings were
all open investigations at the time defendant was interviewed.

14 A-2307-18
 The State played a portion of the recording of defendant's interview,

including the non-audio portion. At the beginning of the audio-recorded portion,

Gallucci told defendant, "Now . . . obviously you're not in Lodi by coincidence.

This is stemming from an investigation –" and defendant interrupted, asking

"Can I read the rights (inaudible)?" Gallucci informed him that he was at the

police department regarding a home invasion, but before they talked about the

case, he had to advise defendant of his rights. Gallucci then read defendant his

rights and he confirmed his understanding of each right. Defendant also

confirmed that no one was forcing him to speak with the officers and that

defendant was not under the influence of drugs or alcohol. Defendant read his

rights to himself and read them aloud per Gallucci's request. After he read his

rights, defendant asked Gallucci if he could "call [his] girl too, [because he] just

need[ed] some advice." In response, the following exchange occurred:

[DETECTIVE GALLUCCI]: You need advice
from your girl?

[DEFENDANT]: Yeah, I want you to explain
basically how you explained it to me, I want you to
explain (inaudible) and see what she said.

[DETECTIVE GALLUCCI]: Oh, explain your
rights?

15 A-2307-18
 [DEFENDANT]: No, not my rights. My
(inaudible) told me what was going down and what you
need from me and everything.

Gallucci also asked if defendant's girlfriend was his attorney, and

defendant responded that she was not. Gallucci also told defendant that the

"only issue" he had with calling defendant's girlfriend was that the call would

be "on the recording and then . . . later down the road, she gets called to be a

witness." Defendant did not call his girlfriend before speaking with the police.

During the interrogation, defendant admitted to being on the scene, but

denied going into the home and explained that he did not condone pointing a

gun at a child. The police told defendant they recovered his palm print from the

air conditioner and showed him a photo taken from the surveillance video.

When he was shown the photo, defendant stated that the person depicted in the

picture looked a lot like him. After admitting he was on the scene, he said that

he only saw one person enter the house, and he did not know the name of that

person. He eventually provided the name "Chucky" during the interview and

provided initials of names but did not reveal the names of the other individuals

that were there that night.

The State only played a portion of the interview during the hearing,

Gallucci read an additional excerpt of the transcript for the record. In the

16 A-2307-18
excerpt, defendant stated "if I didn't want to talk, I know my rights . . . if I didn't

want to talk to you, I could have just said I need a lawyer. You understand what

I'm saying? And we going to take—we'll take care of this—we'll take care of

this to court."

The State argued that asking to speak to his girlfriend was not an

invocation of his right to remain silent, but instead that he wanted the detectives

to explain the proposed cooperation to his girlfriend. Defense counsel argued

there were two issues—first the non-audio recorded portion of the interview

where defendant had not been read his Miranda rights, and second, the

invocation of his right to remain silent by asking to speak with his girlfriend.

On March 12, 2018, the trial court entered an order denying defendant's

motion to suppress his statement and set forth its reasons in a written decision.

The court concluded that defendant's request to speak with his girlfriend was not

an invocation of his right to remain silent. While the court recognized defendant

wanted advice, it highlighted that the "advice" he was seeking was not about his

rights, but about the cooperation discussion defendant had just had with the

detectives. The court found that "it could not have [been] reasonably inferred

from defendant's innocuous statement that he desired to remain silent."

17 A-2307-18
Therefore, the State had proven defendant waived his rights beyond a reasonable

doubt and the statement did not need to be suppressed.

Subsequently, the trial court also denied defendant's motion for

reconsideration. In that motion, defendant argued that the court had failed to

consider certain omitted portions of his statement. In denying the motion, the

trial court explained that it had considered the entire recording, even the parts

that were not specifically detailed in its prior opinion, and concluded that taking

defendant's statements "in context, [the court] remain[ed] satisfied the sole

purpose for defendant to speak to his girlfriend was to discuss the proposed

cooperation agreement in which he would provide gang-related information to

law enforcement."

B.

We "generally will defer to a trial court's factual findings concerning the

voluntariness of a confession that are based on sufficient credible evidence in

the record." State v. L.H., 239 N.J. 22, 47 (2019). Deference to a trial court's

factual findings is appropriate "because the trial court has the 'opportunity to

hear and see the witnesses and to have the "feel" of the case, which a reviewing

court cannot enjoy.'" State v. S.S., 229 N.J. 360, 374 (2017) (quoting State v.

Elders, 192 N.J. 224, 244 (2007)). However, we review de novo the trial court's

18 A-2307-18
legal conclusions that flow from established facts. State v. Hamlett, 449 N.J.

Super. 159, 169 (App. Div. 2017) (citing State v. Hubbard, 222 N.J. 249, 263

(2015)).

"The right against self-incrimination is guaranteed by the Fifth

Amendment to the United States Constitution and [New Jersey's] common law,

now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503."

S.S., 229 N.J. at 381-82 (quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)).

"New Jersey law requires that the prosecution 'prove beyond a reasonable doubt

that the suspect's waiver [of that right] was knowing, intelligent, and voluntary

in light of all the circumstances.'" State v. A.M., 237 N.J. 384, 397 (2019)

(quoting State v. Presha, 163 N.J. 304, 313 (2000)).

New Jersey law requires that "a request, 'however ambiguous,' to

terminate questioning . . . must be diligently honored." S.S., 229 N.J. at 382

(alteration in original) (quoting State v. Bey, 112 N.J. 123, 142 (1988)). When

a 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.'" Id. at 382-83 (quoting State v. Johnson, 120 N.J. 263, 283

(1990)). "Unless the suspect makes clear that he is not invoking his right to

remain silent, questioning may not resume." Ibid.

19 A-2307-18
 Under some circumstances, a suspect's request to speak with a third party

may constitute an invocation of the suspect's right to remain silent. See State v.

Maltese, 222 N.J. 525, 545 (2015) (citing State v. Harvey, 121 N.J. 407, 581

(1990)). In Maltese, the twenty-year-old defendant agreed to take a polygraph

test and afterwards, repeatedly asked to speak with his uncle before continuing

to speak to the police. Id. at 533-38. The Court found that "[t]he facts presented

here clearly indicate that defendant invoked his right to remain silent." Id. at

546. In that case, the defendant had "repeatedly stated that he wanted to speak

with his uncle, whom he considered 'better than a freaking attorney,' before

answering any further questions." Ibid. The Court also found that "defendant

. . . unequivocally asserted more than ten times that he wanted to speak to his

uncle before answering any further questions" and "defendant specifically stated

that he wanted to consult with his uncle about 'what to do.'" Ibid. Moreover,

once he asserted his right to remain silent, the police used the uncle to continue

their investigation and therefore, his Miranda rights "were not scrupulously

honored." Ibid.

This case is unlike Maltese, where the defendant had already taken a

polygraph test and wanted advice from his uncle regarding his own culpability.

Here, based upon its review of the interview, the trial court concluded that

20 A-2307-18
defendant, who was thirty-two years old, wanted to get advice from his girlfriend

about the proposed cooperation agreement that defendant had discussed with

police. The record supports this conclusion.

After defendant asked to speak with his girlfriend, the detectives

attempted to clarify his request and he specifically said that he did not want to

talk about his rights with her. He also explained that she was not his attorney.

Instead, he told them that he wanted the police to explain to her what the police

would need from him. The trial court found, and we agree, that it was reasonable

to believe he was referring to the possible cooperation he had just discussed for

almost thirty minutes with the detectives. Moreover, contrary to defendant's

assertion that Gallucci improperly "discouraged" defendant from invoking his

rights by telling him the girlfriend would be called as a witness, there was no

indication that defendant was invoking his right to remain silent and Gallucci

could not have reasonably inferred that defendant was attempting to invoke any

right when making that comment.

No part of defendant's conversation with the detectives about his girlfriend

indicated he did not want to speak with the detectives, but instead that he wanted

them to explain the situation to her. That defendant may have changed his mind

about speaking to the police after consulting with his girlfriend about

21 A-2307-18
cooperation does not make this an invocation of the right to remain silent. For

that reason, the trial court properly denied defendant's motion.

IV.

Next, we consider defendant's contentions that the trial court's decisions

limiting cross-examination deprived defendant of a fair trial. First, he argues

that the trial court erred by not allowing defense counsel to question Eric on his

interpretation of his wife's statement to the police. Second, he argues it was

error for the trial court to forbid defense counsel from questioning the victims

on their immigration status. We reject both arguments.

A.

During cross-examination of Eric, defense counsel attempted to question

him on his interpretation of Mary's statements to the police. He asked if Eric

had interpreted truthfully, and Eric confirmed he had. The trial court refused to

allow the testimony to continue beyond that, explaining that defense counsel had

to ask Mary what she said, not Eric. The judge explained that the translation

would not be coming into evidence, so "whether he translated accurately,

inaccurately, truthfully, [or] not, I'm not allowing it" because defense counsel

had to ask Mary directly. When defense counsel explained that he wanted to

ask Eric whether or not he "misrepresented" Mary's statement to Esposito, the

22 A-2307-18
trial court asked Eric "did you deliberately lie to . . . the detective?" Eric

answered no and when defense counsel requested a sidebar, the court denied it

because the testimony was hearsay.

After Eric's testimony concluded and outside the presence of the jury,

defense counsel attempted to explain to the court his line of questioning and

claimed that Eric "blatantly lied" to the officer about what Mary said. Defense

counsel wanted to bring out the fact that Mary said the person who entered the

bedroom was wearing a white sweatshirt and that Eric told Esposito that the

person was wearing a black sweatshirt.

The trial court explained that assuming that was true, his translation could

not come into evidence because it was hearsay, and that only what Mary actually

said would be coming into evidence. It explained "[w]hatever [Eric] translated

is not evidence, is not coming into evidence, and is not going to be used, period."

The court also noted that Eric had just had a gun in his face at the time and that

he was not a certified translator.

During her cross-examination, Mary maintained that the color of the

sweatshirt was black, and defense counsel confronted her with her prior

statement. When asked again if she had ever said the sweatshirt was white,

Mary answered, "I remember that it was black. I don't know, at that time I was

23 A-2307-18
just so very fearful because of what had happened." She added that maybe she

had said it was white, but she did not have everything clear then because she

was nervous.

Esposito also testified and explained that he spoke with the victims at

headquarters. In Esposito's report, he wrote that the "clothing [worn by the

assailants] was described as red and black sweatshirts." He explained that no

one had described a white sweatshirt to him during his investigation.

Defense counsel then attempted to recall Eric, but the trial court denied

the application, finding that the issue of whether Eric properly translated the

color of the sweatshirt was not relevant and was "nothing to attack anybody's

credibility."

We review a trial court's decision to admit or exclude evidence under the

abuse of discretion standard. State v. Garcia, 245 N.J. 412, 430 (2021). "Under

that standard, an appellate court should not substitute its own judgment for that

of the trial court, unless 'the trial court's ruling "was so wide of the mark that a

manifest denial of justice resulted."'" State v. Singh, 245 N.J. 1, 13 (2021)

(quoting State v. Brown, 170 N.J. 138, 147 (2001)). "Although a trial court

retains broad discretion in determining the admissibility of evidence, that

discretion is abused when relevant evidence offered by the defense and

24 A-2307-18
necessary for a fair trial is kept from the jury." State v. Cope, 224 N.J. 530,

554-55 (2016).

"[T]he Sixth Amendment right of confrontation 'expresses a preference

for the in-court testimony of a witness, whose veracity can be tested by the rigors

of cross-examination.'" State v. Medina, 242 N.J. 397, 412 (2020) (quoting State

v. Basil, 202 N.J. 570, 591 (2010)). Nonetheless, "[t]here are potential

limitations on the right to confrontation, which 'may, in appropriate

circumstances, bow to competing interests.'" State v. Jackson, 243 N.J. 52, 65-

66 (2020) (quoting State v. Budis, 125 N.J. 519, 531 (1991)). Notably, "[a] trial

court may 'impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice, confusion of the

issues, the witness'[s] safety, or interrogation that is repetitive or only

marginally relevant." Id. at 66 (emphasis added) (quoting Del. v. Van Arsdall,

475 U.S. 673, 679 (1986)); see also State v. Bass, 224 N.J. 285, 303 (2016).

In light of these principles and our review of the record, we discern no

abuse of discretion in the trial court's decision. We cannot say there was any

manifest denial of justice here, where the jury knew of the discrepancy in the

color of the sweatshirt through cross-examination of Mary and the issue about

the color of the sweatshirt was not relevant because neither Mary nor Eric

25 A-2307-18
identified or otherwise implicated defendant. Evidence of his role in the

burglary was the palmprint on the air conditioner, his statement to police and

the contents of the video footage.

B.

At the Rule 104 hearing about the admissibility of the victims'

immigration status and the State's involvement in their U visa applications, 7

Mary testified that she was born in Mexico and was not a United States citizen,

nor was she a citizen on December 12, 2016. For the purposes of that hearing,

the parties agreed that Mary was the victim of a crime on December 12, 2016.

That crime was reported to the police and she gave a statement to the police on

the same day the crime occurred. She explained that she told the police about

what happened to get help from them. Mary was also aware that after December

12, 2016, a visa application was filed on her behalf, but she did not know the

7
A U visa grants a non-citizen temporary immigration status and the possibility
of lawful permanent resident status. U.S. Dep't of Homeland Sec., U Visa
Immigration Relief for Victims of Certain Crimes (2017),
https://www.dhs.gov/sites/default/files/publications/U-Visa-Immigration-
Relief-for-Victims-of-Certain-Crimes.pdf. To qualify, a non-citizen must
submit a form that includes the certification of a law enforcement official, who
must detail the crime and the assistance the non-citizen provided in the
prosecution of that crime. Ibid. The form does not "by itself grant any
immigration benefit." Ibid.

26 A-2307-18
specific type of visa application. She testified that no one from the prosecutor's

office made her any promises about her visa application.

On cross-examination, Mary stated that she learned that the visa was being

filed about "half a year" after she gave her statement to the police. Through

acquaintances, she learned that she could apply for that visa. After she filled

out the application, her immigration attorney explained that she needed a

signature from the Bergen County Prosecutor's Office and that was how the

office got involved with the immigration application.

Eric testified he was born in Mexico and at the time of the hearing he was

not a citizen of the United States. He explained that about five to seven minutes

after the crime occurred, the police were called and, on the same night, he gave

a statement to the police. Since that night, his immigration lawyer filed a U visa

application on his behalf. He stated that no one from the prosecutor's office

made any promises to him about his application and at the time of the hearing,

the outcome of his application was uncertain.

On cross-examination, Eric explained that he told his immigration lawyer

about the incident, and his lawyer explained the U visa application to him and

explained that an eligibility requirement for the U visa was that the applicant

needed to be a victim of a crime. That was the only requirement his attorney

27 A-2307-18
explained. He did not know that cooperating with law enforcement was also a

requirement for the application.

In an oral decision, the trial court denied defendant's motion to allow the

victims' immigration status to be raised at trial. The court first explained that

under Sanchez-Medina, immigration status is "not admissible in general for

impeachment purposes." He also noted the "subtle distinction" that the issue in

this case was the immigration status of the witnesses, not defendant's

immigration status, and that the witnesses' immigration status "may or may not

affect an outcome." The court found that the victims' immigration statuses were

inadmissible under Rule 404, and that it was insufficient under Rule 608 for

"proof of character or reputation." Ultimately, in weighing Rule 403, he

concluded that the probative value, which was minimal, was "substantially

outweighed by the prejudice and the negative inference that it will bring upon a

jury."

The trial court also did not find that these circumstances impeached Eric's

or Mary's credibility. First, the victims had independent counsel and the State

did not represent them in their U visa application. Second, the court concluded

that the prosecutor "signing off o[n] . . . the form that the victims . . . were

helpful . . . or will be helpful is not tantamount to a promise of favorable

28 A-2307-18
immigration treatment in exchange for truthful testimony, notwithstanding that

without that certification they could not make the application." The court did

not agree with defendant that the prosecutor signing off on the form was a

promised benefit. Finally, it explained that the probative value of the evidence

would be minimal because the witnesses were not going to identify defendant.

In the court's view, the probative value would be greater if the witnesses were

going to go on the stand and specifically point out defendant.

Based on this record, we do not find that the trial court abused its

discretion by barring any testimony about the victims' immigration status. At

the outset, we acknowledge that both the United States and New Jersey

Constitutions guarantee a defendant in a criminal matter the right to confront

adverse witnesses. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; State v.

Guenther, 181 N.J. 129, 147 (2004). However, that right is still subject to

"N.J.R.E. 403[, which] provides for the exclusion of evidence that is otherwise

admissible 'if its probative value is substantially outweighed by the risk of (a)

undue prejudice, confusion of issues, or misleading the jury or (b) undue delay,

waste of time, or needless presentation of cumulative evidence.'" State v.

Trinidad, 241 N.J. 425, 449 (2020) (quoting N.J.R.E. 403).

29 A-2307-18
 In Sanchez-Medina, the Court considered the prejudicial effect of

evidence concerning a person's immigration status, explaining that, "[a]s a

general rule, that type of evidence should not be presented to a jury." 231 N.J.

at 462. The Court found that "[i]n most cases, the immigration status of a

witness or party is simply irrelevant, and a jury should not learn about it," id. at

463, because disclosure of a person's "illegal status in this country is very likely

to trigger negative sentiments in the minds of some jurors." Id. at 464 (quoting

Serrano v. Underground Utils. Corp., 407 N.J. Super. 253, 274 (App. Div.

2009)). However, and relevant here, the Court also explained that evidence

concerning a witness's or party's immigration status may be admissible in

"limited" and "rare" circumstances, such as where a witness is "promised . . .

favorable immigration treatment in exchange for truthful testimony." Id. at 463.

We do not find that the circumstances presented here fall into the "rare"

circumstances contemplated by the Court in Sanchez-Medina. The victims here

sought out help from the police and began cooperating immediately and gave

their statements to police the night of the home invasion. They were not

promised favorable treatment in exchange for their cooperation, they cooperated

from the very beginning. Moreover, the victims never directly discussed the

immigration applications with the prosecutor's office. Although Eric mentioned

30 A-2307-18
the incident to his immigration lawyer and that lawyer contacted the prosecutor

regarding the U visas, there was no direct agreement between the prosecutor's

office and the victims. We also note again that the victims did not place

defendant at the scene of the crime and never implicated defendant at all, making

their credibility less of an issue than if they had identified defendant as a

participant in the crime.

V.

Finally, in defendant's pro se brief, he contends that the warrant issued for

his arrest was invalid because the municipal court judge did not comply with

procedural rules and because there was no probable cause for the issuance of the

warrant. By extension, he argues that because his arrest warrant was invalid,

his custodial statement to police should have been suppressed. We disagree.

A.

At a pre-trial hearing on defendant's motion to invalidate the arrest

warrant, the municipal court judge that issued the warrant was called as the sole

witness. The judge remembered receiving a phone call that someone had pushed

in an air conditioner during a home invasion and that the police had a palm print

and "basically they entered the apartment and there was a gun involved" and

someone got hit. The State asked whether he had an opportunity to review the

31 A-2307-18
complaint warrant before his testimony that day, and the judge confirmed he

had, but stated "[t]o tell you the truth, I took a copy, but I never looked at it, if

you want to know the truth of the matter. I'm not going to lie to you." He also

explained that he found probable cause at the time of the call and that he was

still satisfied that there was probable cause to justify the warrant. On cross-

examination, the municipal judge explained that he did not recall whether he

reviewed the complaint within forty-eight hours after issuing it on December 30,

2016.

On October 5, 2018, the trial court denied defendant's motion in an oral

decision on the record. The court began by noting that this arrest warrant was

issued on or about December 30, 2016, and on January 1, 2017, the Criminal

Justice Reform Act, N.J.S.A. 2A:162-15 to -26, went into effect and in part,

changed some procedural rules surrounding arrest warrants. He also explained

that the complaint itself was drawn at 5:50 p.m. on December 29, 2016, and on

December 30, 2016, the municipal court judge affixed his electronic signature

finding probable cause.

As to defendant's motion, the trial court found the municipal court judge

to be "very credible" but presumed "for the purposes" of defendant's motion that

the judge did not comply with the procedural rule fully, observing that there

32 A-2307-18
were no notes taken or any recording of the phone call, and that from the judge's

testimony, the municipal court judge did not have the warrant delivered to him.

The trial court also noted that as the municipal judge testified, he had not

reviewed the warrant until the hearing. Nevertheless, the trial court concluded

that the crux of the issue was the constitutional question—whether there was

probable cause to arrest defendant—not whether the procedural rules were

followed. As the trial court was satisfied there was probable cause based on

defendant's palm print and the victims' statements, he denied the motion.

B.

"An arrest—the most significant type of seizure by police—requires

probable cause and generally is supported by an arrest warrant or by

demonstration of grounds that would have justified one." State v. Pinson, 461

N.J. Super. 536, 548 (App. Div. 2019) (quoting State v. Rosario, 229 N.J. 263,

272 (2017)). "Like a search warrant, an arrest warrant is presumed valid, and a

defendant challenging its validity has the burden to prove there was no probable

cause supporting the issuance of the warrant." Ibid. "For probable cause to

arrest, there must be probable cause to believe that a crime has been committed

and 'that the person sought to be arrested committed the offense.'" State v.

33 A-2307-18
Chippero, 201 N.J. 14, 28 (2009) (quoting Schneider v. Simonini, 163 N.J. 336,

363 (2000)).

"Probable cause exists where the facts and circumstances within . . . [the

officers'] knowledge and of which they had reasonably trustworthy information

[are] sufficient in themselves to warrant a [person] of reasonable caution in the

belief that an offense has been or is being committed." Pinson, 461 N.J. Super.

at 549 (alterations in original) (quoting State v. Moore, 181 N.J. 40, 46 (2004)).

In making the probable cause determination, which requires "more than a mere

suspicion of guilt, but less evidence than is needed to convict at trial," the "court

must 'consider the totality of the circumstances when assessing the reasonable

probabilities that flow from the evidence submitted in support of a warrant

application.'" Ibid. (first quoting State v. Ingram, 230 N.J. 190, 213-14 (2017);

then quoting Chippero, 201 N.J. at 27).

Generally, the consequence for violating the probable cause requirement

is the exclusionary rule. See State v. Shannon, 222 N.J. 576, 586 (2015) (J.

LaVecchia, concurring). One purpose of the exclusionary rule is "to 'uphold

judicial integrity' by informing the public that 'our courts will not provide a

forum for evidence procured by unconstitutional means.'" Hamlett, 449 N.J.

Super. at 176 (quoting State v. Williams, 192 N.J. 1, 14 (2007)). However,

34 A-2307-18
"New Jersey courts apply the exclusionary rule only to evidence obtained in

violation of a defendant's constitutional rights." Ibid. As we have explained,

"[a]pplying the exclusionary rule to errors of . . . minor and technical

significance would 'debase the judicial process and breed contempt for the

deterrent thrust of the criminal law.'" Id. at 177 (quoting State v. Bickham, 285

N.J. Super. 365, 368 (App. Div. 1995)).

We are not persuaded by defendant's argument that there was no probable

cause to arrest. From the victims' statements, the officers knew that a home

invasion occurred and that a gun had pointed at the victims and their child. They

also knew from his handprint on the air conditioner unit that defendant was at

the very least involved, especially because the air conditioner unit was pushed

inside the home to gain access. These facts amounted to probable cause; they

did not need to amount to enough to convict defendant. Pinson, 461 N.J. Super.

at 549.

As to the procedural issue, the exclusionary rule is reserved for

constitutional deprivations—not technical procedural violations. See Hamlett,

449 N.J. Super. at 177. The alleged errors here, such as the municipal judge not

recalling whether he administered the oath to the affiant and not reviewing the

35 A-2307-18
warrant, do not mandate exclusion. Because the warrant was supported by

probable cause, there was no reason to suppress defendant's statement.

VI.

To the extent we have not specifically addressed any of defendant's

remaining arguments, we conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

36 A-2307-18