STATE OF NEW JERSEY v. ANDREAS M. ERAZO (17-10-1376, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-4408-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREAS M. ERAZO,

Defendant-Appellant.
_______________________

Argued January 12, 2022 – Decided March 28, 2022

Before Judges Sabatino, Rothstadt, and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 17-10-
1376.

Morgan A. Birck, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Morgan A. Birck, of counsel
and on the briefs).

Melinda A. Harrigan, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Lori Linskey, Acting Monmouth
County Prosecutor, attorney; Melinda A. Harrigan, of
counsel and on the brief).
PER CURIAM

After the trial court denied his motion to suppress his statements to police,

then eighteen-year-old defendant Andreas M. Erazo pled guilty to the sexual

assault and murder of an eleven-year-old girl, his neighbor, A.S. 1 The court

sentenced defendant to an aggregate term of life in prison, subject to a No Early

Release Act, (NERA) N.J.S.A. 2C:43-7.2, period of parole ineligibility.

On appeal, defendant challenges the denial of his suppression motion and

his sentence, arguing the following specific points:

POINT I

THE STATEMENT OF DEFENDANT SHOULD
HAVE BEEN SUPPRESSED BECAUSE HE DID
NOT KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY WAIVE HIS RIGHT AGAINST
SELF-INCRIMINATION, NOR WERE THE
STATEMENTS KNOWING, INTELLIGENT, OR
VOLUNTARY.

A. BECAUSE [DEFENDANT] WAS
SUBJECTED TO CUSTODIAL INTERROGATION
DURING THE FIRST INTERVIEW, THE FAILURE
TO PROVIDE MIRANDA[2] WARNINGS REQUIRES
SUPPRESSION OF HIS STATEMENTS.

B. THE STATE FAILED TO PROVE
BEYOND A REASONABLE DOUBT THAT UNDER

1
Initials are used to protect the identity of the victim, a minor. R. 1:38-3(c)(9).
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-4408-18
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 THE TOTALITY OF THE CIRCUMSTANCES,
[DEFENDANT'S] WAIVER OF RIGHTS AND
SUBSEQUENT STATEMENTS WERE KNOWING,
INTELLIGENT, AND VOLUNTARY.

POINT II

THE SENTENCE IS EXCESSIVE AS THE TRIAL
COURT RELIED UPON STATEMENTS FROM THE
VICTIM'S FAMILY DENIGRATING THE
DEFENDANT.

POINT III

THE IMPOSITION OF A LIFE SENTENCE SUBJECT
TO NERA WAS CRUEL AND UNUSUAL
PUNISHMENT BECAUSE THE COURT IMPOSED
IT UPON AN EIGHTEEN-YEAR-OLD OFFENDER
IN THE FACE OF SCIENCE THAT COUNSELED
STRONGLY AGAINST IMPOSING SUCH A
SENTENCE UPON A PERSON OF THAT AGE.

A. THE CONSTITUTIONAL
PROTECTIONS UNDER MILLER[3] SHOULD BE
EXTENDED TO DEFENDANT, WHO WAS
MERELY EIGHTEEN AT THE TIME OF THE
OFFENSE.

B. IN THE ALTERNATIVE, THE CASE
SHOULD BE REMANDED TO APPLY YOUTH AS
A NON-STATUTORY MITIGATING FACTOR.

After considering defendant's contentions in light of the record and the

applicable principles of law, and for the reasons stated in this opinion, we

3
Miller v. Alabama, 567 U.S. 460 (2012).
A-4408-18
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reverse the denial of his suppression motion and remand the matter so that an

order granting his suppression motion may be entered, and defendant given an

opportunity to withdraw his plea and proceed to trial, or otherwise dispose of

the matter through a negotiated plea.

I.

We summarize the facts surrounding defendant's statements to police and

his arrest as developed at the three-day suppression hearing conducted by the

trial court at which the only witness was Detective Wayne Raynor of the

Monmouth County Prosecutor's Office.

On July 12, 2017, A.S.'s mother reported to the Keansburg Police

Department (KPD) that her daughter was missing. The mother informed

responding police officers that she last saw A.S. at about 8:00 p.m. that evening

and believed A.S. went to apartment 16-A, the apartment directly above theirs,

where defendant lived with his mother and brother. The officers went to that

apartment, where defendant, who was home alone, consented to police searching

there for A.S. They found nothing and left. The police returned to defendant's

apartment at 5:30 a.m., conducted another search with consent, and again found

no evidence that the girl was there or had been in the apartment.

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 Later that same morning, Raynor was called in to assist with the

investigation. Raynor and other officers canvassed the area surrounding A.S. 's

home, and, at about 10:30 a.m., they found her body on a roof beneath a window

to defendant's apartment.4

Now a homicide case, Raynor was assigned as lead detective, working

with Detective Joseph Jankowski from the KPD, and was tasked with

interviewing defendant, who agreed to provide a witness statement regarding

what he understood was a missing person's investigation. A KPD police officer

took defendant in a marked police car to the KPD's nearby station. The car was

equipped with recording devices, which were not activated while defendant was

escorted by the officers, so it was not known whether defendant was handcuffed

at the time or had any conversations with the officer that transported him. Upon

his arrival at the station, the officer seated defendant, unrestrained, on a bench

in a secured non-public area where the station's holding cell was located and

where civilians could not move freely about without an escort.

4
A.S.'s body was found wrapped in a wire and a mattress cover that, according
to detectives during defendant's interrogation, defendant's brother identified as
originating from defendant's apartment. According to detectives, they learned
this information by speaking with defendant's brother between defendant's first
and second interviews.
A-4408-18
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 At approximately 10:50 a.m., Raynor and Jankowski introduced

themselves and instructed defendant to be patient while they found a place to

talk. At no point was defendant told he was free to leave or even to get up to

use the facilities or make a phone call. About twenty minutes later, the

detectives escorted defendant to an interview room on the second floor, deeper

into the secured area. The room was narrower than others and was not equipped

with recording devices.

In the interview room, Raynor and Jankowski questioned defendant for

nearly an hour and a half, without administering any Miranda warnings,

inquiring into defendant's background and whereabouts throughout the day and

night A.S. went missing and the morning after. After speaking to defendant, the

detectives told defendant they would now arrange to take a written and recorded

statement and they were going to leave to find someone to transcribe his

statement. Before they left him in the room, they offered food and water, and

asked if he needed to use the bathroom, which defendant declined, but he asked

if he could leave to smoke a cigarette. The detectives told him to wait in the

unlocked interview room.

When Raynor and Jankowski exited the room, they were informed a

witness saw A.S. entering defendant's apartment with a person that fit

A-4408-18
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defendant's appearance on the night she went missing. With this information,

Raynor suspected defendant was the perpetrator.

Raynor and Jankowski then escorted defendant from the second-floor

interview room, through the secured area, to an outside area, where they

remained with him while he smoked a cigarette. Afterward, they escorted him

back into the interview room, where he was given a bagel and water and

remained for forty minutes, until they escorted him to another interview room

that had audio and video recording devices. While defendant waited in this room

for several hours for his recorded statement to begin, detectives brought him

pizza and water, escorted him to the bathroom and outside to the same area to

smoke another cigarette.

About seven hours after defendant first arrived at the station, detectives

began taking defendant's recorded statement. Although the detectives at this

point no longer considered him as a mere witness; but instead claimed they

considered him a person of interest yet treated him as they would a suspect, they

did not, at that time, inform defendant of their suspicion, or that A.S.'s body was

discovered wrapped in items identified to originate from his home, or that

someone had seen a person that fit defendant's description with A.S. going into

A-4408-18
7
apartment 16-A the night she went missing, or even that he was giving a

statement in what was now a homicide investigation.

Raynor began the second interview by explaining he was about to give

defendant Miranda warnings. Specifically, he stated the following:

RAYNOR: All right, . . . I appreciate it. It's been a
long day, but – you've got some water in you, that and
a couple cigarette breaks, and here we are.

Listen, we spent a considerable amount of time
together, and, you know, you've been very forward with
me. You've been very easy to talk to. You and I have
spoken to each other today, and it's been a very easy
conversation, all right, and I expect that that's where
we're going to continue on with this, obviously. But
before we do that, because we're in the police
department, okay, you're not under arrest, but because
we're in a police department, this is a matter obviously
we talked about earlier. This is, you know, something
that we want to talk to people about. Because we want
to talk to you about this I'm going to advise you of your
Miranda rights. Okay? All right? We'll get through
that. If you have any questions you'll let me know, and
then we'll move on from there. Okay?

[(Emphasis added).]

After defendant indicated he understood, Raynor provided Miranda

warnings, which defendant acknowledged verbally and in writing, before he

waived those rights in the same manner. Raynor advised defendant that what

they were about to do was record the statement defendant provided earlier. He

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told defendant, "what I'd like to do, just literally, is just go over pretty much

everything that we talked about earlier today. Obviously when we spoke earlier.

I wrote down a ton of notes, so I'll just go over and make sure we don't miss

anything[.]"

Over the next hour or so, the detectives went over defendant's background5

and his whereabouts on the day A.S. went missing. Defendant stated he last saw

A.S. on his way out of his apartment at about 1:00 p.m., when he left to go run

errands, and provided a timeline of his whereabouts. Raynor told defendant that

what he was now stating "sound[ed] completely different than when [they] spoke

earlier," and perhaps defendant was now "over thinking." Defendant responded

by explaining, "It's just the fact that I'm getting -- like, I've been here for hours.

I'm just getting more tired." In response, Raynor told defendant, "that's why . . .

it's important to talk to me."

Turning to his whereabouts the evening A.S. went missing, defendant

stated he walked trails alone for several hours before returning home at about

5
Defendant provided his name; familial relationships; living arrangements; his
and his mother's history of substance abuse; his history of severe depression and
self-harm, including a suicide attempt, which led to being admitted for inpatient
treatment at a behavioral health facility specializing in psychiatric and substance
abuse treatment, the Division of Youth and Family Services placing him in a
group home, which ultimately led to his aunt adopting him.
A-4408-18
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9:00 p.m., showering, and later being confronted with the officer that first

searched his apartment for A.S. After Raynor spent more than an hour of having

defendant go over his earlier statement, Raynor asked defendant if he understood

"what is going on." Defendant stated "[t]he most [he knew] is that [A.S. was]

missing."

In a lengthy response, Raynor told defendant that Raynor was there to help

defendant and he explained to him why he did not believe defendant's original

explanation of his whereabouts during the initial unrecorded interview.

Specifically, Raynor stated the following:

RAYNOR: Okay. Okay. Well, it's a little bit – it's a
little bit worse than that. Okay? It's a little bit worse
than that. All right? And my sole function sitting here
with you is to give you the tools, . . . to give you the
tools to understand that being forthright, you've let Joe
and I into your life, you've let us see into your -- under
your first layer. Okay? We've kind of got a gist of what
a lot of people probably don't know about you. You
know what I mean?

. . . . Like I said, my job is to sit here and to help you
through this. Okay? I know mistakes happen. I know
things happen. I know that you're not a monster. I
know that you have had whatever you have had to deal
with, but I know that shit happens. Joe and I have done
this job long enough to know that just because of the
person sitting here and the things that we have is not a
direct reflection. All right?

....

A-4408-18
10
 . . . . This is time for you and I and Joe to talk about
this. Okay? You're there. All right? You didn't – you
didn't come back. You didn't walk the trails for four
hours [by] yourself . . . unaccounted for, and come back
into the house and take a shower and lay down and go
to sleep. All right? The story is clear. But what we'd
like to do, come meet us . . . . Talk to us a little bit
about this. This is the time to talk to us. Talk to us.
Help us explain this. Help us explain.

....

. . . [A]re you familiar with that big camera on the side
of the vape shop? All right. So, you not coming back
to the apartment, like you said you did, around nine
o'clock, that's not concerning to you? All right. I just
want to start there. I want to get into a dialogue with
this. I want to talk about this with you. You not coming
back to the apartment when you told us that you came
back means you were there. Okay? Her outside at the
time we have her outside, at dusk, okay, means we're
not worried about where you were earlier in the day.
But we're worried about where you were at that time, at
dusk. Okay? This stuff that . . . has led us here to this
conversation, it's come from your apartment. Okay?
It's come from your apartment.6 That, coupled with the
fact that . . . you can't give us any kind of alibi
whatsoever, and what you did, . . . what you did give
us, it's not there. It's problematic, obviously. Okay?

....

. . . I want you to come on board with me. I want you
to understand the gravity that you're not being judged.
You're not being looked at. Things happen. Things

6
We understand the "stuff" Raynor was referring to was the mattress cover and
wire that A.S. was found wrapped in.
A-4408-18
11
happen. You're a young man that has been through a
lot. And I . . . get that you're not in a good frame of
mind. I get that. But I'm not going to sit here and
regurgitate everything to you.

But you've got to trust me. I've been forward with you
all day. We've been forward with each other. Okay?
I'm not lying to you, that – we're back at your
apartment. And there's a lot that I want to talk to you
about. Okay? If there's some other explanation, well
then, . . . let's start talking about it. But we both know
what the explanation is. Okay? She was there. She
went into your apartment. . . . It's not something that
we have to sit and think about. The hardest part right
now is for you to understand and to -- to deal with the
fact, be able to open your mouth and start talking to me
about something that you know is heinous, you know is
no good, but you also know that it's a mistake. Okay?
You know?

....

You told us two different versions of where you were
during the day because the nerves in your chest as I'm
sitting here looking at you while you're talking, took
you -- you didn't even know what time you got to Wells
Fargo. From what you told us earlier today you got to
Wells Fargo right after you left your house. You then
told us that you were probably there around four or
4:30. That's fine. I'm not worried about that because
that's not when all of this is happening. The -- but what
that does is you know we're getting close to the time
that you can't put yourself anywhere. You can't put
yourself anywhere. You won't put yourself anywhere.
And what you did tell us, where you did put yourself,
we don't see you. You . . . didn't see anybody, you
didn't talk to anybody.

A-4408-18
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 [DEFENDANT]: I told you I was on the trail, though.

RAYNOR: Exactly. For four hours. And we don't see
you coming back when you said you did . . . .

[DEFENDANT]: I understand that.

....

RAYNOR: This isn't hard. . . . This isn't difficult. All
right? When we have somebody, when we're looking
at something like this, and we have somebody, and all
indications are pointing to where somebody literally
lives, and was home by himself, and that somebody
gives us a story that we can't match up. Not only can't
we match it up, we can show that he's not walking back
into his apartment at 8:30, nine o'clock. He's not there.
It means you're in the apartment . . . . This -- this isn't
-- coupled with people who saw -- somebody who saw
you and her there.7 Coupled with the fact that the items
come from your –. . . it's – it's over. It's a lot. It's a lot.
That's what you have to understand. That's what
brought us to this very moment.

[(Emphasis added).]

The detectives then assured defendant: "[t]here's no doubt" it

"accidentally happened," "[y]ou're [eighteen] years old," "[y]ou have your entire

7
Raynor was referring to the witness that saw a person fitting defendant's
description with A.S. the night she went missing. That witness positively
identified A.S., but could not make a positive identification of defendant, even
after he was showed a photo lineup including defendant's photograph.

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13
life ahead of you," "[t]his was an awful mistake," "[t]his isn't something you've

been planning."

Just before defendant admitted to killing A.S., albeit accidently,8

defendant had the following exchange with detectives about the recording of

what was transpiring in the room they were in and his concern that his mother

and girlfriend would see the recording:

RAYNOR: . . . [T]he only thing that that recording
does is show you. Okay?

[DEFENDANT]: So, it's not (indiscernible)?

RAYNOR: No. I mean, it's -- no, I don't mean that
literally.

[DEFENDANT]: Oh.

RAYNOR: I mean – don't worry about it. Don't worry
about it.

JANKOWSKI: That's fine.

RAYNOR: Figuratively what that camera does is show
that Joe and I aren't -- it shows you. It shows you as a
human. It shows you as a person.

JANKOWSKI: And you want that. You want -- you
want us to -- you want people -- you want us to see that.

8
The video of defendant's statement reflects that at this point defendant was
sitting in a chair in a corner of the room with the detectives seated directly in
front of him, cornering defendant while he spoke.
A-4408-18
14
 RAYNOR: That's my point. It shows you –

JANKOWSKI: You need to see that.

[DEFENDANT]: Basically -- all right. Why isn't
anyone watching it, besides like a police officer? Like,
is, like, my mom watching –

....

RAYNOR: Absolutely not. Nobody knows this is
happening right now.

[DEFENDANT]: So, I mean, if it's another police
officer, whatever, I'd just rather, one, my mother and
my girlfriend, obviously, don't see it, hear it, whatever.

RAYNOR: Uh-huh.

After the detectives persuaded defendant that whatever happened could

have been an accident, defendant confessed to unintentionally killing A.S., after

he suddenly found her in his apartment. Defendant hoped that since the killing

was accidental, he would be released to see his soon to be born baby grow up.

Later during the interview, Raynor told defendant that A.S. was not

wearing pants or underpants when police found her body, which usually meant

that something sexual had occurred. In response, defendant denied recalling that

anything sexual happened, although he confirmed, in response to Raynor 's

suggestion, that he could not remember because he may have blacked out.

A-4408-18
15
 The interview ended after about five hours when, in response to the

detectives' request for a DNA sample, defendant asked to speak to a lawyer. The

detectives ended the interview, arrested defendant, and charged him with the

murder of A.S. and possession of a weapon for an unlawful purpose.

On July 17, 2017, a Monmouth County Grand Jury returned an indictment

charging defendant with murder, N.J.S.A. 2C:11-3(a)(1) (Count one); first-

degree felony murder, N.J.S.A. 2C:11-3(a)(3) (Count two); three counts of first-

degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), (4), and (3) (Counts

three, four, and five respectively); fourth-degree unlawful possession of a

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

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count seven).

As already noted, the trial court conducted a three-day hearing before

denying defendant's motion to suppress his statements to the detectives. The

court placed its reasons on the record on April 27, 2018, and entered its order

the same day.

As explained in its oral decision, the court determined "[t]he record, in

sum, does not indicate by any objective criteria that defendant was in custody at

any time prior to and in the course of his first interview with detectives." The

court relied on its findings that defendant was transported by police in a police

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car to the KPD headquarters; no evidence was presented to indicate defendant

was ordered into the car or was restrained therein; when defendant arrived at the

police station, he was escorted to a secured common area, where other witnesses

were seated and waited to be interviewed; defendant was not restrained on the

bench where he sat waiting or after he was escorted to the interview room during

the near hour and a half interview.

The court further determined Miranda warnings were not required because

defendant was not subject to an interrogation. It reasoned "detectives did not

consider defendant to be a suspect and instead were only questioning him as a

potential witness." The court stated that "[q]uestioning by law enforcement

officers that is part of an investigation and does not target a specific individual

is not interrogation for Miranda purposes."

Turning to the second interview, the court determined the State proved

beyond a reasonable doubt defendant's waiver of his Fifth Amendment rights

and subsequent statements were given knowingly, intelligently, and voluntarily.

First, it determined the two-step interview was not the question first, warn later

practice, discussed in State v. O'Neill, 193 N.J. 148 (2007), that would taint a

later waiver of rights. The judge cited to the initial interview being short; that

it took place in a different room; occurred about five hours before the second

A-4408-18
17
interview; and, it considered most importantly, defendant's statements were not

incriminating. Ultimately, the court determined the totality of the circumstances

showed defendant's waiver was proper.

Those circumstances included, as the trial court determined, facts

"militating in favor of a finding of involuntariness of defendant's statement,"

such as defendant was eighteen years old, had not yet finished high school, and

was subjected to a prolonged interview. They also included facts demonstrating

defendant waived his rights, knowingly, intelligently, and voluntarily , such as

(1) defendant was given and "signed a document evidencing that he understood

[his Miranda] rights and wished to give them up;" (2) nothing from the record

indicated defendant did not understand his rights or waiver; (3) he was provided

with multiple meals and bathroom and cigarette breaks; and (4) neither the video

or transcript demonstrate that he was physically or mentally exhausted or

impaired, or that "detectives used any sort of physical or mental coercion to

induce defendant to waive his rights" where defendant did not ask for a break or

stop the interrogation when defendant said he was "getting more tired" in

response to inconsistencies in his recounting of his whereabouts, but instead

Raynor's tone and attitude was "almost paternalistic," and defendant "almost

never adopted a defensive posture."

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 After the denial of his motion, on February 26, 2019, defendant pled

guilty, pursuant to a plea agreement, to murder and aggravated sexual assault of

a victim under thirteen years of age. At his plea hearing, defendant admitted to

committing an act of sexual assault against A.S. through "sexual penetration"

and intentionally causing her death by stabbing her neck.

On May 31, 2019, the court sentenced defendant on count one to life

imprisonment, subject to NERA and to a concurrent fifty years on count three.

The court then dismissed the remaining counts in response to the State's motion,

as contemplated by the plea agreement. This appeal followed.

II.

On appeal, defendant contends the State failed to prove beyond a

reasonable doubt that his statements to detectives were provided knowingly,

willingly, and voluntarily because he was "subjected to [a] custodial

interrogation during his first interview" without being "informed of his Miranda

rights," which "undermined his later waiver of his rights." Specifically, he

argues he was in custody as demonstrated by the facts that he was driven to the

police department in a police car and had no other way to get home, he was not

told he was free to leave, and he had to ask permission and receive an escort to

use the bathroom and to go outside to smoke a cigarette. Under these

A-4408-18
19
circumstances, he contends a reasonable person in his position would not have

believed he was free to leave.

Defendant further contends that, at the time of the first interview, he was

interrogated after A.S.'s mother had already told officers she believed A.S. was

in defendant's apartment when she went missing; his apartment was searched

twice; A.S.'s body was found directly below his apartment window; and

detectives questioned him for an hour and twenty minutes, without disclosing

that information.

Defendant also argues his statements from his second interview must be

suppressed because the detectives conducted a two-step interview where

detectives "questioned first" and "warned later," invalidating his Miranda

waiver. He supports this argument by highlighting that the same detectives, just

a few hours after the first interview, asked the same questions as the first

interview, did not inform him his pre-warning statements could not be used

against him, and withheld from him his status as a suspect. Also, they told him

the Miranda warnings were being provided only because they were in a police

department, no one was watching the recording at that time, the video was being

taken only to show him "as a human," and it was their job to help defendant. He

contends these statements implied to defendant that the video could serve only

A-4408-18
20
to help him, and his statements would not be used against him. Moreover, these

statements induced defendant's incriminating statements, evidenced by his

reluctance to speak until he was reassured no one was watching; and stating to

detectives, "I want to be able to be there when my baby is born, watching it grow

up." Additionally, defendant claims he was more vulnerable to compulsion,

despite having one prior juvenile adjudication, because he was only eighteen

years-old, did not finish high school, had been removed from his mother's care

when he was thirteen, and he suffered from untreated bipolar disorder. We find

merit to these contentions.

A.

Our review of a trial court's findings at an evidentiary hearing or trial is

deferential. See State v. Tillery, 238 N.J. 293, 314 (2019); State v. Hubbard,

222 N.J. 249, 262-65 (2015). "[A]n appellate court reviewing a motion to

suppress must uphold the factual findings underlying the trial court's decision

so long as those findings are supported by sufficient credible evidence in the

record." State v. Carrion, 249 N.J. 253, 279 (2021) (alteration in original)

(quoting State v. Elders, 192 N.J. 224, 243 (2007) (holding that a defendant's

second statement to police given after Miranda warnings should have been

suppressed when he made his first incriminating statement after he was

A-4408-18
21
confronted with an implied threat his children would be removed from his care

and he was not informed his pre-warning statements could not be used against

him)). However, "the interpretation of law 'and the consequences that flow from

established facts' are not entitled to deference and are reviewed de novo." Ibid.

(quoting Hubbard, 222 N.J. at 263).

Nevertheless, "[w]hen faced with a [challenge to a] trial court's admission

of police-obtained statements, [we] engage in a 'searching and critical' review

of the record to ensure protection of a defendant's constitutional rights." State

v. Hreha, 217 N.J. 368, 381-82 (2014) (quoting State v. Pickles, 46 N.J. 542,

577 (1966)). "Subject to that caveat, [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).

This deference extends to a court's determinations based not only on live

testimony but also when based on the review of video or documentary evidence

because of the court's "expertise in fulfilling the role of factfinder." State v.

S.S., 229 N.J. 360, 379-80 (2017).

Our deference requires that we not reject a trial court's factual findings

merely because we "disagree[] with the inferences drawn and the evidence

accepted by the trial court or because [we] would have reached a different

A-4408-18
22
conclusion." Id. at 374. Only if the court's factual findings are "so clearly

mistaken 'that the interests of justice demand intervention and correction,'" will

we discard those factual findings. State v. Gamble, 218 N.J. 412, 425 (2014)

(quoting Elders, 192 N.J. at 244). When the court's factual findings are "not

supported by sufficient credible evidence in the record," our deference ends.

S.S., 229 N.J. at 361.

B.

We begin our review by observing any consideration of the admissibility

of a defendant's statements to police necessarily invokes concern about a

violation of a defendant's "right against self-incrimination," which is "[o]ne of

the most fundamental rights protected by both the Federal Constitution and state

law," and the voluntariness of the waiver of that right. Carrion, 249 N.J. at 274-

75. "The right against self-incrimination . . . guaranteed by the Fifth

Amendment to the United States Constitution and this state's common law[ is]

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

State v. Diaz, __ N.J. Super. __, __ (App. Div. 2022) (slip op. at 19) (quoting

S.S., 229 N.J. at 381-82). The importance of that right cannot be overstated. As

Justice Albin stated in L.H., "[n]o piece of evidence may have greater sway over

a jury than a defendant's confession. For that reason, it is of critical importance

A-4408-18
23
that law enforcement officers use interrogation techniques that will elicit

confessions by lawful means." 239 N.J. at 27.

"In Miranda, the United States Supreme Court 'determined that a custodial

interrogation by law enforcement officers is inherently coercive, automatically

triggering the Fifth Amendment privilege against self-incrimination.'" Diaz, __

N.J. Super. at __ (slip op. at 19-20) (quoting State v. P.Z., 152 N.J. 86, 102

(1997) (holding that police officers' misleading defendant as to the reason for

his arrest and subsequent questioning warranted suppression of his statements)).

"[T]he Supreme Court put safeguards in place to protect the privilege against

self-incrimination and respond to the 'inherently compelling pressures which

work to undermine the individual's will to resist and to compel [an individual

subject to custodial interrogation] to speak where he would not otherwise do so

freely.'" Carrion, 249 N.J. at 275 (second alteration in original) (quoting

Miranda, 384 U.S. at 467 (requiring that an "accused must be adequately and

effectively apprised of his rights and the exercise of those rights must be fully

honored")).

To safeguard a suspect's Fifth Amendment right against self-

incrimination, "[a] confession or incriminating statement obtained during a

custodial interrogation may not be admitted in evidence unless a defendant has

A-4408-18
24
been advised of his or her constitutional rights." Ibid. (quoting Hubbard, 222

N.J. at 265). "[T]he failure by police interrogators to deliver any of the required

warnings/advisements automatically results in the suppression of an ensuing

statement." Diaz, __ N.J. Super. at __ (slip op. at 25) (citing State v. Carty, 170

N.J. 632, 649 (2002)). And, even when properly advised, "a person must be told

that he [or she] can exercise his [or her] rights at any time during the

interrogation." Id. at __ (slip op. at 20) (alterations in original) (quoting Tillery,

238 N.J. at 315).

In the context of Miranda issues, the term "custodial interrogation" is

defined as "questioning initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of his freedom of action in any

significant way." Hubbard, 222 N.J. at 265-66 (quoting Miranda, 384 U.S. at

444). "[I]f the questioning is simply part of an investigation and is not targeted

at the individual because she or he is a suspect, the rights provided by Miranda

are not implicated." Id. at 266 (quoting State v. Timmendequas, 161 N.J. 515,

614-15 (1999)). However, "express questioning" or "any words or actions on

the part of the police . . . that the police should know are reasonably likely to

elicit an incriminating response," rises to an interrogation. Id. at 267 (quoting

Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). Essentially, "Miranda turns

A-4408-18
25
on the potentially inquisitorial nature of police questioning." Id. at 266. For

that reason, the Court in O'Neill found that questions about an interrogee's

whereabouts at the time and place a crime occurred was considered interrogation

and not a "casual chat." O'Neill, 193 N.J. at 169. Questions about an

interrogee's "movements" on the day of the incident are not mere "attempts to

secure information that [might] assist[]" police, but rather are "target questions

that reflect a clear attempt . . . to cause [an interrogee] to incriminate himself."

Hubbard, 222 N.J. at 271-72.

As for physical custody, federal law requires a "formal arrest or restraint

on freedom of movement of the degree associated with a formal arrest ."

California v. Beheler, 463 U.S. 1121, 1125 (1983) (internal quotation marks

omitted). In New Jersey, "[o]ur courts have also recognized that custody in the

Miranda sense does not necessitate a formal arrest, nor does it require physical

restraint in a police station, nor the application of handcuffs, and may occur in

a suspect's home or a public place other than a police station." P.Z., 152 N.J. at

102-03 (internal quotation marks omitted).

"Whether a suspect has been placed in custody is fact-sensitive and

sometimes not easily discernable." State v. Scott, 171 N.J. 343, 364 (2002).

"The relevant inquiry is determined objectively, based on 'how a reasonable

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26
[person] in the suspect's position would have understood his situation,'" rather

than "on the subjective views harbored by either the interrogating officers or the

person being questioned." Hubbard, 222 N.J. at 267 (alteration in original) (first

quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984); and then quoting

Stansbury v. California, 511 U.S. 318, 323 (1994)). Indeed, "[t]he critical

determinant of custody is whether there has been a significant deprivation of the

suspect's freedom of action based on the objective circumstances, including the

time and place of the interrogation, the status of the interrogator, the status of

the suspect, and other such factors." P.Z., 152 N.J. at 103; see State v. Smith,

374 N.J. Super. 425, 431 (App. Div. 2005) (delineating relevant factors in

evaluating custody as "the time, place[,] and duration of the detention; the

physical surroundings; the nature and degree of the pressure applied to detain

the individual; language used by the officer; and objective indications that the

person questioned is a suspect").

In cases where, as here, an interrogee is questioned twice, the first time

without any Miranda warnings, courts are required to consider all relevant

factors, including those the New Jersey Supreme Court enumerated in O'Neill,

"to assess how effectively the warnings in the second interrogation

functioned[.]" Carrion, 249 N.J. at 276-77 (quoting O'Neill, 193 N.J. at 180-

A-4408-18
27
81). The court cautioned, however, "that no single factor is determinative." Id.

at 276.

The O'Neill factors include the following:

(1) the extent of questioning and the nature of any
admissions made by defendant before being informed
of his Miranda rights; (2) the proximity in time and
place between the pre- and post-warning questioning;
(3) whether the same law enforcement officers
conducted both the unwarned and warned
interrogations; (4) whether the officers informed
defendant that his pre-warning statements could not be
used against him; and (5) the degree to which the post-
warning questioning is a continuation of the pre-
warning questioning. The factual circumstances in
each case will determine the appropriate weight to be
accorded to any factor or group of factors.

[Ibid. (quoting O'Neill, 193 N.J. at 180-81).]

A defendant may waive his Fifth Amendment rights so long as his waiver

"is made voluntarily, knowingly, and intelligently." Id. at 275 (quoting

Miranda, 384 U.S. at 444). Before a defendant's custodial statement may be

admissible, the State must "prove beyond a reasonable doubt that the suspect 's

waiver [of rights] was knowing, intelligent, and voluntary." Ibid. (quoting

Tillery, 238 N.J. at 316). In other words, at a hearing to determine the

voluntariness of a defendant's statement, "the State bears the burden of proving

beyond a reasonable doubt that a defendant's confession is voluntary and not

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28
resultant from actions by law enforcement officers that overbore the will of a

defendant." Hubbard, 222 N.J. at 267. "The State bears a similarly high burden

when a defendant challenges a statement procured by a law enforcement officer

without the benefit of Miranda warnings." Ibid.

When determining whether the State has satisfied its burden that a waiver

was knowing, intelligent and voluntary, a court must consider the "totality of

the circumstances," which includes factors such as the defendant'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." State v. A.M., 237

N.J. 384, 397 (2019). Additionally, a court may consider the defendant's

"previous encounters with law enforcement, and the period of time between

'administration of the [Miranda] warnings and the volunteered statement.'" State

v. Knight, 183 N.J. 449, 463 (2005) (alteration in original) (quoting

Timmendequas, 161 N.J. at 614).

The focus of a Miranda analysis should be on whether the defendant had

a clear understanding and comprehension of his or her Miranda rights based on

the totality of the circumstances. State v. Puryear, 441 N.J. Super. 280, 297

(App. Div. 2015) (citing State v. Nyhammer, 197 N.J. 383, 402 (2009)

A-4408-18
29
(affirming trial court's admission of defendant's incriminating statements to

police despite being initially interviewed regarding a crime allegedly committed

by relative because, unlike O'Neill, detectives provided defendant with Miranda

warnings before questioning him about anything and defendant testified he knew

he "had a right to refuse to answer any questions," even after detectives revealed

the allegation against him)).

"Where the prosecution shows that a Miranda warning was given and that

it was understood by the accused, an accused's uncoerced statement establishes

an implied waiver of the right to remain silent." Tillery, 238 N.J. at 316 (quoting

Berghuis v. Thompkins, 560 U.S. 370, 384 (2010)). However, a defendant

signing a waiver of his rights, which were read to him prior to being questioned,

cannot be accepted as evidence of a waiver where the interrogating officer

"minimize[s] the significance of the suspect's signature on that card or form."

Id. at 319 (concluding that a defendant's signature to a waiver form that only

acknowledged his rights were read to him did not establish a waiver of his

rights).

For example, in State ex rel. A.S., the Court held an "interrogating officer

violated a juvenile defendant's rights by telling her that answering questions

'would actually benefit her'—an assertion at direct odds with the Miranda

A-4408-18
30
warning 'that anything she said in the interview could be used against her in a

court of law.'" L.H., 239 N.J. at 44 (quoting State ex rel. A.S., 203 N.J. 131,

151 (2010)). Similarly, in our opinion in Puryear, we held defendant's ensuing

statement inadmissible where the interrogating officer neutralized the Miranda

warning by representing to defendant, "The only thing you can possibly do here

is help yourself out. You cannot get yourself in any more trouble than you 're

already in. You can only help yourself out here." 441 N.J. Super. at 288, 298-

99.

As we observed in Puryear, "[a] police officer cannot directly contradict,

out of one side of his mouth, the Miranda warnings just given out of the other."

Id. at 296-97 (first quoting State v. Pillar, 359 N.J. Super. 249, 268 (App. Div.

2003); then citing United States v. Ramirez, 991 F. Supp. 2d 1258, 1269-70

(S.D. Fla. 2014) (telling a defendant if he or she did not answer questions "it

would be worse" contradicted the Miranda safeguards)). The courts in Puryear

and A.S. both held the defendants' statements inadmissible because the

interrogating officers had contradicted the Miranda warnings by misleading the

defendants into believing their statements would help them and would not be

used against them. Id. at 298-99; A.S., 203 N.J. at 151 (holding the detective

A-4408-18
31
telling the defendant that answering his questions would show that the defendant

was a "good person" contradicted the Miranda warnings).

Also, "[a] court may conclude that a defendant's confession was

involuntary if interrogating officers extended a promise so enticing as to induce

that confession." L.H., 239 N.J. at 45 (quoting Hreha, 217 N.J. at 383).

"[W]here a promise is likely to 'strip[] defendant of his "capacity for self-

determination"' and actually induce the incriminating statement, it is not

voluntary." Ibid. (quoting State v. Fletcher, 380 N.J. Super. 80, 89 (App. Div.

2005)). However, in Pillar, where a defendant admitted to a crime based on the

interrogating officer's assurance that their conversation was off the record, we

observed that "a misrepresentation by police does not render a confession or

waiver involuntary unless the misrepresentation actually induced the

confession." 359 N.J. Super. at 269 (quoting State v. Cooper, 151 N.J. 326, 355

(1997)). Such inducing misrepresentations include, as already noted,

misrepresentations about a defendant's true status which induced a confession

or even seemingly exculpatory statements, especially when given without the

benefit of Miranda. See Diaz, __ N.J. Super at __ (slip op. at 37); Nyhammer,

197 N.J. at 402; Miranda, 384 U.S. at 476.

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32
 As Justice Albin also explained in L.H., while certain lies told by

interrogating officers are tolerated, inducements to speak to law enforcement

that include express or implied assurances of leniency cannot be tolerated.

Specifically, he stated the following:

Because a suspect will have a natural reluctance to
furnish details implicating himself in a crime, an
interrogating officer may attempt to dissipate this
reluctance and persuade the suspect to talk. One
permissible way is by appealing to the suspect's sense
of decency and urging him to tell the truth for his own
sake. Our jurisprudence even gives officers leeway to
tell some lies during an interrogation.

Certain lies, however, may have the capacity to
overbear a suspect's will and to render a confession
involuntary. Thus, a police officer cannot directly or
by implication tell a suspect that his statements will not
be used against him because to do so is in clear
contravention of the Miranda warnings. . . .

Other impermissible lies are false promises of leniency
that, under the totality of circumstances, have the
capacity to overbear a suspect's will. A free and
voluntary confession is not one . . . obtained by any
direct or implied promises, however slight, nor by the
exertion of any improper influence.

....

Under the totality-of-the-circumstances test, a promise
of leniency is one factor to be considered in
determining voluntariness. Courts have recognized that
the danger posed by promises of leniency is that such
promises in some cases may have the capacity to

A-4408-18
33
 overbear a suspect's will and produce unreliable— even
false—confessions. Some courts also take into account
an interrogator's "minimization" of the offense when
questioning the suspect as one factor in determining the
voluntariness of a confession.

[L.H., 239 N.J. at 43-46 (internal quotation marks,
alterations, and citations omitted).]

However, these limitations do not prevent police from employing "certain forms

of trickery while posing substantive questions following a knowing and

voluntary Miranda waiver." Diaz, __ N.J. Super. at __ (slip op. at 37). As we

explained in Diaz,

Such [permitted] trickery is designed to induce an
interrogee who has already waived his or her Miranda
rights to make factual statements that constitute
incriminating admissions. We are aware of no
precedent, however, that authorizes trickery as part of
the waiver process, that is, trickery designed to induce
a person to yield his or her right to remain silent and
consult with an attorney before answering substantive
questions. Indeed, Miranda itself explains to the
contrary that "any evidence that the accused was . . .
tricked . . . into a waiver will, of course, show that the
defendant did not voluntarily waive his [or her]
privilege."

[Ibid. (second alteration in original) (quoting Miranda,
384 U.S. at 476).]

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34
 C.

With these guiding principles in mind, we turn to the totality of the

circumstances presented in this matter and conclude that the entirety of both of

defendant's statements to police should have been suppressed. The detectives

here conducted two custodial interrogations, the second being a repetition and

continuation of the first, knowingly withheld defendant's "true status" from him

before administering any warnings, exploited the information from the first to

extract a confession in the second, undermined the Miranda warnings they

eventually gave him by minimizing their significance by telling him they were

there to help him and that the video of his statement was to benefit defendant

and would not be seen by others. Moreover, under the totality of the

circumstances, the custodial interrogations were not supported by evidence that

defendant knowingly, intelligently, and voluntarily waived his Miranda rights.

First, the trial court's determination that the first interview was not a

custodial interrogation is not supported by the evidence. The evidence

established that an eighteen-year-old boy was taken in the backseat of a marked

police vehicle to a stationhouse, with no apparent means of returning home or

even being told he could leave to go home or elsewhere, and was placed in an

area where he was not allowed to move about freely, including getting up and

A-4408-18
35
leaving if he chose to do so because anyone seeking to move about had to be

escorted.

Additionally, detectives' questioning was not "simply part of an

investigation" because they targeted defendant as a suspect and performed an

inquisition specifically and deeply into his background and activity from the

night before A.S. went missing to the day after. See Hubbard, 222 N.J. 266. As

the interrogation was custodial, it required the administration of Miranda

warnings. This requirement was punctuated when defendant was taken for

questioning further into the recesses of the stationhouse, on the second floor,

where he was told to wait in the room for the detectives and, when he wanted to

take a cigarette or bathroom break, he had to be escorted. The same restraints

applied during the second interview. There was nothing noncustodial about

either interview. Under these circumstances, no reasonable person would have

thought at any time they were free to leave. Rather, it was clear that his or her

liberty was restrained.

The failure to administer Miranda warnings before the first custodial

interrogation was not remedied by the warnings given before the second because

the warnings and gravity of the offense in question were minimized and

A-4408-18
36
defendant had already provided information that was used against him to extract

a confession.

Raynor telling defendant immediately prior to administering the warnings

that he had to provide them only because they were in a police station clearly

"minimize[d] the significance of" defendant's waiver, Tillery, 238 N.J. at 316;

L.H., 239 N.J. at 43-46, especially when considering defendant's age, lack of a

high school education, minimal lack of experience with the criminal justice

system, and his mental health issues, as well as the many hours he already spent

secure inside the police station. Specifically, prior to administering the

warnings, Raynor learned from the first interview 9 that defendant was only a

teenager and suffered from mental health issues for which he would self-

medicate and self-harm, including attempting suicide.10

Further undermining the Miranda warnings was the detectives' comment

during the second interview about their roles, telling defendant that it was the

detectives' job to "sit here and to help you through this" and that defendant was

9
Although we do not have a recording of the first interrogation, detectives
framed the second interview as "literally" just going over what they had gone
over in the morning and the State conceded the first hour and a half or so of the
second interrogation is largely the same as the entirety of the first.
10
Later, after he began his confession, defendant told detectives he was not
currently taking his prescribed medication.
A-4408-18
37
"not being judged. . . . not being looked at," and that the video of his statement

was for his benefit. The detectives' conduct here not only undermined the

Miranda warnings but also "[a]ffirmatively mislead[ defendant] about the

seriousness of the offense for which he . . . was taken into custody[, which]

strikes at the heart of [his] waiver decision." Diaz, __ N.J. Super. at __ (slip

op. at 37-38); see also L.H., 239 N.J. at 43-46.

Preliminarily, the trial court misunderstood or overlooked our

jurisprudence establishing defendant's seemingly exculpatory statements as

inculpatory in nature. During the first interview, it was undisputed that

defendant gave a detailed explanation as to his alleged location during the day

and evening when A.S. was reported missing. The trial court overlooked that

these seemingly exculpatory statements as actually inculpatory in nature. The

detectives later used the inconsistencies in defendant's explanation during their

second interview to impeach defendant and demonstrate his guilt through

implication, which they could not have done had they not conducted the first

interview. Such conduct is not condoned where Miranda warnings have not

been given before the initial interview because "statements merely intended to

be exculpatory by the defendant are often used to impeach his testimony at trial

or to demonstrate untruths in the statement given under interrogation and thus

A-4408-18
38
to prove guilt by implication." State v. Ahmad, 246 N.J. 592, 615 (2021).

"These statements are incriminating in any meaningful sense of the word and

may not be used without the full warnings and effective waiver required for any

other statement." Ibid. (holding that trial court erred admitting defendant's

unwarned statement to police where "the State used defendant's recorded

statement to demonstrate that defendant told untruths to detectives when he was

questioned").

Also, suppression of defendant's first statement was warranted because

"the detectives were able to exploit in further questioning defendant" the

information they secured during the first interview, supported the suppression

of both his statements. O'Neill, 193 N.J. at 182. As already noted, the detectives

asked about defendant's whereabouts on the day A.S. went missing and then

pinned defendant against his initial recounting of events when they interrogated

him again to extract a confession. When they had him repeat his statement in

the next interview and he mixed up the events of that day, detectives confronted

him with the inconsistencies, visibly agitating "the nerves in [his] chest." Then,

they used the inconsistencies and the unverifiable nature of some of his

statement to pressure him into giving a different statement.

A-4408-18
39
 We also note, just as the trial court found, there is no record of what

transpired between the officers who transported defendant to the KPD

stationhouse and defendant, including whether he was handcuffed or otherwise

restrained, other than what Raynor surmised without first-hand knowledge.

What is clear, however, is that when defendant was asked to give a statement to

police, he understood it was a witness statement in connection with a missing

persons investigation, even though the police already discovered A.S. 's body

underneath defendant's window and A.S.'s mother had told police she

understood her daughter went to defendant's apartment.

At the time of the first interview, there was no question that the

investigation was no longer a missing person investigation and despite that fact,

the interrogating officers told defendant he was not under arrest, and only

revealed deep into the second interview the reason for their interrogation was

"it's a little bit worse than" inquiring about a missing person. They did so

knowing that defendant was their prime suspect, if not before the first interview,

certainly before they questioned him a second time, when they knew that a

witness had seen the victim with a person detectives believed to be defendant

the evening she went missing and that the material the victim was discovered

wrapped in originated from defendant's apartment.

A-4408-18
40
 Throughout the process, therefore, defendant was never informed of his

status and instead affirmatively misled to believe he was providing a witness

statement in a missing person investigation. In fact, he was never told the police

were investigating a homicide. "[T]he impact of the police decision in this

instance to [not] advise defendant of the reason for his [questioning except] in a

manner that was vague and misleading" prevented defendant from making a

voluntary and knowing waiver of his right to remain silent before the first

interview when no warnings were given, and the later interview, when he

ostensibly waived his right. Diaz, __ N.J. Super. at __ (slip op. at 49).

There is no dispute that the detectives knew at the time of defendant's

initial interrogation, and even more before his second, facts that when viewed

"from the standpoint of an objectively reasonable police officer," gave rise to

probable cause that defendant killed A.S. Id. at __ (slip op. at 48) (quoting State

v. Gibson, 218 N.J. 277, 293 (2014)). "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." Id. at __ (slip op. at 43) (quoting State v. Moore, 181 N.J. 40, 46

(2004)).

A-4408-18
41
 Here, the detectives' knowledge established probable cause, and therefore

the need to inform defendant of his true status. The information known to the

detectives included "the incriminating evidence that was presented to defendant

during the [second] stationhouse examination." Id. at __ (slip op. at 44). It

included that the facts about which defendant told them during the first interview

were belied by a convenience store video, which was not produced at the

suppression hearing, and a witness seeing A.S. with a person detectives believed

was defendant go in the apartment building together. "[T]he failure to mention

[A.S.'s] death and defendant's potential exposure to a first-degree . . .

sentence . . . was designed or reasonably likely to convey to defendant that he

was facing a significantly less serious [situation] than he actually faced." Id. at

__ (slip op. at 40).

D.

Also, applying as we must, the unexhaustive list of O'Neill factors, we

conclude that the second interview was not sufficiently attenuated from the first ,

compounding the ineffectiveness of the Miranda warnings given only in the

second interview.

At the outset and significantly, the trial court bypassed factor four in its

analysis, which our Court "gives 'great weight'" to and is evident here—

A-4408-18
42
detectives did not inform defendant his prior unwarned statement could not be

used against him before he waived Miranda rights and provided a second

statement. See Carrion, 249 N.J. at 278. Equally clear and bypassed by the

court is factor three, the same detectives conducted both the unwarned and

warned interrogations, and factor five, the post-warning questioning was a

continuation of pre-warning questioning to such a degree that they completely

overlapped before detectives resumed where they left off. As in O'Neill, "it

would have been unnatural to refuse to repeat at the second stage what had been

said before." See O'Neill, 193 N.J. at 182-83. Therefore, these three factors

favor suppression.

As for factor two, we consider "the proximity in time and place between

the pre-and post-warning questioning." O'Neill, 193 N.J. at 180-81. We are

constrained to accept the trial courts determination that five hours weighs in

favor of admission. See Carrion, 249 N.J. at 282-83. However, the record does

not support, as the trial court did, determining two interview rooms within the

same secure area of a small stationhouse are "a clear and substantial break in

place," see ibid., especially considering detectives changed rooms under the

guise that the reason was simply to record the statement defendant initially

A-4408-18
43
provided. Put simply, this "was part of an unbroken interrogation." See O'Neill,

193 N.J. at 183. Accordingly, this factor stands in equipoise.

Finally, the first O'Neill factor, the extent of questioning and nature of

admissions, also favors suppression. The trial court vastly departed from our

well established law to find defendant's initial nearly hour and a half

interrogation was relatively brief. See Carrion, 249 N.J. at 279 (acknowledging

the ninety-five-minute initial interrogation in O'Neill was part of a

"quintessential" example of a factor one analysis that favors suppression).

Additionally, the officer's inquisition during the first interview was

extensive. Even though defendant denied knowing anything about A.S.'s

disappearance and stated he only saw her on his way out of their apartment

complex earlier that day, detectives prodded deep into his familial background,

history of neglect and mental health issues, and, just like the detectives in

O'Neill, "focused on defendant's [specific] whereabouts" throughout the

remainder of the day and evening. See O'Neill, 193 N.J. at 182. And, as already

discussed and contrary to the trial court's determination, those whereabouts he

provided were inculpatory and the ammunition detectives used in the second

interrogation. In other words, the first O'Neill factor clearly favors suppression

as well.

A-4408-18
44
 In sum, factors one, three, four, five qualitatively, in this particular case,

outweigh factor two; and "[u]nder these circumstances[, after applying, the

O'Neill considerations,] we cannot conclude beyond a reasonable doubt that

[defendant] knowingly and voluntarily waived his Miranda rights when

providing his second statement." Carrion, 249 N.J. at 261.

The matter is therefore remanded to the trial court for entry of an order

granting defendant's suppression motion, allowing defendant to withdraw his

plea and the matter tried or otherwise resolving the matter. See O'Neill, 193

N.J. at 167; R. 3:9-3(f) ("If the defendant prevails on appeal, the defendant shall

be afforded the opportunity to withdraw his or her plea.").

Based on our decision regarding the inadmissibility of defendant's

statements, we need not consider his contentions about his sentence.

Reversed in part; vacated and remanded in part for further proceedings

consistent with our opinion. We do not retain jurisdiction.

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45