SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17 STATE OF NEW JERSEY,
Plaintiff

- Respondent,

v. GERRY THOMAS,
Defendant

- Appellant.

_________ __ _____________

Argued March 1, 2021

– Decided May 24, 2021 Before Judges Rothstadt and Mayer. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 17

- 05

- 0491. Margaret McLane , Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Margaret McLane, of counsel and on the briefs). Mark Niedziela, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Pas saic County Prosecutor, attorney; Mark Niedziela, of counsel and on the brief). Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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PER CURIAM After the trial judge denied defendant Gerry Thomas 's motion to suppress
his second custodial statement to police, a jury found d efendant guilty of two

counts of first

- degree felony murder , N.J.S.A. 2C:11

- 3(a)(3) ; one count of
second

- degree arson, N.J.S.A. 2C:17

- 1(a)(1) and ( a)(2) ; and , one count of first

degree attempted robbery, N.J.S.A. 2C:5

- 1(a)(3), N.J.S.A . 2C:15

- 1(a)(1). The

c onviction s arose from d efendant's alleged participation in a robbery that
resulted in the murder of t wo victims and the destruction of the ir remains through the torching of the car in which they were killed. After his conviction s , t he trial judge sentenced defendant to an aggregate term of eighty years subject to a period of parole ineligibility under the No Early Release Act, N.J.S.A.
2C : 43

- 7.2.
Defendant appeals from his conviction and sen tence and argues the following points:

POINT I
DEFENDANT'S SECOND STATEMENT WAS TAKEN IN VIOLATION OF HIS RIGHT AGAINST SELF

- INCRIMINATION, WAS INVOLUNTARY, AND WAS UNRELIABLE. THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS HIS STATEMENT.3 A

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- 17 POINT II
THE MOTION FOR A JUDGMENT OF ACQUITTAL ON ATTEMPTED ROBBERY SHOULD HAVE BEEN GRANTED BECAUSE THE STATE FAILED TO PRESENT ANY EVIDENCE THAT DEFENDANT INTENDED HIS CO

- DEFENDANT TO COMMIT A ROBBERY OR THAT THE CO

DEFENDANT ACTUALLY COMMITTED AN ATTEMPTED ROBBERY.
POINT III
THE JURY INSTRUCTIONS INCORRECTLY FAILED TO SPECIFY THAT THE JURY HAD TO UNANIMOUSLY AGREE ON THE VICTIM OF THE ATTEMPTED ROBBERY. THE ATTEMPTED ROBBERY AND FELONY MURDER CHARGES MUST BE REVERSED. (NOT RAISED BELOW).
POINT IV
THE FAILURE TO INSTRUCT TH E JURY ON AN ELEMENT OF FELONY MURDER AND TO TAILOR THE FE L ONY MURDER INSTRUCTIONS TO THE UNUS U AL FACTS OF THIS CASE REQU I RES REVERSAL OF THE FELONY MURDER CONVICTIONS. (NOT RAISED BELOW).
POINT V
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE JUR Y HAD UNRESTRICTED ACCESS TO THE COMPILATION OF SURVEILLANCE VIDEOS IN THE JURY ROOM. (NOT RAISED BELOW).4 A

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- 17 POINT VI
THE DEFENDANT'S AGGREGATE SENTENCE OF EIGHTY YEARS WITH AN 85% PAROLE DISQUALIFIER IS MANIFESTLY EXCESSIVE AND DISPARATE WITH THE CONCURRE NT EIGHTEEN

- YEAR SENTENCE IMPOSED ON THE CO

- DEFENDANT.
POINT [VI I ] 1 [DEFENDANT 'S ] SIXTH AMENDMENT RIGHT UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I PAR. 10 OF THE NEW JERSEY STATE CONS T ITUTION WAS VIOLATED BECAUSE TRIAL COUNSEL RENDERED INEFFECTI VE [ASSISTANCE] OF COUNSEL FOR HIS DUAL REPRESENTATION SERVING AS THE VICTIM'S FAMILY [ATTORNEY] AS WELL AS THE DEFENDANT ['S ATTORNEY] . (NOT RAISED BELOW).
W e conclude that t he trial judge erred by denying defendant's motion to suppress his second statemen t to the police because during their second interrogation of defendant they repeatedly implied that he could avoid be in g charged with the subject murders if he responded to their questions

. For that

reason, we revers e the motion's denial, vacate defendant's conviction s , and
remand for a new trial.

1 For clarity, we renumbered this last point, which defendant raised in a p ro s e s upplemental b rief

.5 A

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- 17 I. In response to defendant's motion, the trial judge held a Miranda 2 hearing over three days at which two of the Paterson Police Department detectives who
took his state ments , Richard Martinez and Steven Leishman , testified about the interviews. Detective Sabrina McKoy with the Passaic County Prosecutor's
Office also testified as to a letter her office received from defendant while he was in jail awaiting trial . The facts developed at that hearing are summarized
as follows.
T he Paterson Police Department became interested in defendant's co
defendant, Clarence Williams , on March 10, 2017, after an individual reported
that he had been t he victim in an unrelated robbe ry
. Police identified Williams as a suspect for that robbery, and sometime between March 10 and March 17, 2017, they charged Williams with robbery and weapons offenses and issued a

warrant for his arrest

. On March 17, 2017 , two bodies were discovered inside a burned parked
car in Paterson

. Phone records disclosed that Williams had exchanged multiple phone calls with one of the victims just prior to the time of the homicide s
. As a

2 Miranda v. Arizona , 384 U.S. 436 (1966).6 A

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result, Williams became a suspect in the mu rders. U sing information from the cell phone, law enforcement wa s able to locate Williams

. On March 20, 2017, police officers executed the warrant for Williams by forcibly enter ing his house

. When they entered the home, Williams was in the living room and defendant was in a bedroom

. Officers handcuffed both men and drove them to the detective bureau in separate police cars

. Upon arrival at the bureau, d efendant and Williams were p laced in

s eparate interrogation rooms; Martinez and Detective Bermudez first interviewed defendant, and Sergeant Abdelmonin Hamdeh and Leishman
interviewed Williams

. After defendant was placed inside the interview room, its door was closed and d efen dant remained se ated and unrestrained

. Martinez read defendant his Miranda rights and defendant verbally
indicated he understood them

. Defendant also signed the form acknowledging he understood his rights , and that he wanted to waive them by speaking to the police. M artinez believed defendant understood the situation and he observed that defendant was coherent, answered questions appropriately, and did not appear intoxicated

. Defendant was then read the waiver portion of the Miranda form and asked by Martinez "Do yo u want to talk about the incident?" Defendant responded by7 A

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ask ing "What incident" and was told by Martinez it involved " a boy['s]

. . . dispute with somebody outside their house."
Later in the interrogation , Bermudez stated that the detectives had "something else [they] want [ ed ] to talk about, but you understand these rights, right? The second portion , too, that nobody's made threats or anything about
any threats or used any force against you? " With that, the following exchange
occurred: [DEFENDAN T]: So, waive my right to mean

what?
DETECTIVE MARTINEZ: We've got to talk about something. Another incident that happened. [DEFENDANT] : All right.
DETECTIVE MARTINEZ: Well, you want to talk? You want to talk? I mean, sign or (indiscernible). [DEFENDANT] : What did that

— what did it mean, though?
DETECTIVE MARTINEZ: That you're agreeing to talk and nobody has used force or pressure against you. [ DEFENDANT ] : Yeah.8 A

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The detective began to question defendant and eventually addressed the subject incident. Defendant indicated that he did not know what the detective was talking about and denied being in the location that the detectives described.
Later in the interview , Hamdeh joined the session an d told de fendant that Williams implicated defendant in the crime, which Hamdeh described as two
robberies

. Martinez knew that information to be false, but they confronted him
with that a s part of their "tactics used during interrogations." D efendant
continued to deny any involvement. After the interrogation, defendant was permitted to leave the detective
bureau and no charges were filed against him at that time

. However, t he officers
retained defendant's cell phone

. In the meantime, Leishman interrogated Williams

. After that interrogation, Leishman also reviewed surveillance video s that had been
obtained during the homicide investigation and identified defendant as "a person
of interest" from those videos

. One surveillance video was from a W algreens
near the crime scene . The police were interested in that Walgreens because a witness found a receipt near the crime scene that showed lighter fluid had been purchased from that store. The video depicted a very tall man who Leishman
believed was defendant based on his height

. As Martinez explained, the9 A

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d etectives could not identify the faces of the individuals , but the difference in
the ir "physical stature" was significant.
Defendant returned to police headquarters later the same day to retrieve his cell phone

. When he did, t he detectives detained him and Leishman and
Hamdeh conducted a second interview , which started at about 8:50 p.m. and
lasted about two hours

. During the intervi ew, d efendant was again not handcuffed and had not yet been charged with any offenses

. De fendant was read his Miranda rights a second time

. He again signed
the Miranda waiver , but did not verbally respond to the detective's oral request
for confirmation that he knew his rights and want ed to speak without an attorney.
A t the start of the second interrogation, the following exchange between
the detectives 3 and defendant occurred:

[SERGEANT HAMDEH ] : My name is Sergeant Hamdeh and this is Detective Leishm an, I don't know if you remember from earlier. [ DETECTIVE LEISHMAN ] : So y ou were here earlier and ( unintellig i ble ) went through this whole formality we 're just going to do it one more time alright, so today is March 20th at 8:52 p.m. Before we ask you any questions you must understand your rights. You have the right to remain silent anything you say can be

3 The transcripts provided do not reflect which detective is speaking at which time. The following is based on the transcripts provided , as supplemented by our review of the taped interrogation

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- 17 used against you in a court of law. You have the right to talk to a lawyer for advice before we ask you any questions. Also you have the right to have a lawyer with you during any questioning. If you cannot pay for the services of a lawyer, a lawyer wil l be appointed to represent you without cost befor e any interrogation. If you decide to answer questions now without a lawyer present you will still have the right to stop answering questions at any time you also have the right to stop answering at any time until you talk to a lawyer, you understand that ? [ DEFENDANT ]: (Unintelligible)

. . . all over again. [ DETECTIVE LEISHMAN ] : Listen we just have to go through this before we talk to you. [ SERGEANT HAMDEH ]: You're not in trouble. You walked out earlier right? [ ( E mphasis added ) .]
As Hamdeh was telling defendant that he was not in trouble , Leishman
slid the Miranda rights waiver form over to defendant

. Defendant then signed
the waiver form

. After defendant signed the form, Leishman asked him to
confirm that he knew what it meant:

[ D ETECTIVE LEISHMAN ] : You know what this says right? You signed it already, but the waiver of rights. I have read or been read my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer a t this time. I understand and know what I'm doing. No promises or threats have been made to me and nobody11 A

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- 17 has used pressure or force of any kind against me. Right, you agree you already signed it so you [sic] gonna talk to us again?
Defendant did not respond, as he just sat with his chin resting on his hands
on the table

. Hamdeh then immediately asked defendant, "What's your last name brother," and defendant responded "Thomas

. " During the ensuing interrogation , the detectives told defendant that the y had video of him entering a Walgreens at 1:30 a.m. wearing a black trench coat similar to a coat they recovered from Williams' house where defendant had been staying

. D efendant a cknowledged that he had always shopped at Walgreens and
had been there that week but initially denied being there at that time or owning
a trench coat

. They also told defendant that his height and "distinctive walk" made it
clear to them that it was def endant in the video, and that a video of the crime

scene showed him walking up to the car and lighting it on fire

. In response to
defendant denying any involvement, the following exchange occurred , during
which Hamdeh raised his voice :

[SERGEANT HAMDEH] : I GOT VIDEO MAN, I GOT VIDEO, you're not telling me the God's honest truth. [ DEFENDANT ]: Sir I wasn't

. . .12 A

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- 17 [SE R GEANT HAMDEH] : You're not telling me the God's honest truth, you're lying to me. [ DEFENDANT] : Sir I don't even own a black trench coat sir. [SERGEANT HAMDEH] : I got, I got video. I got video.

. . . . [ DETECTIVE LEISHMAN] : He doesn't understand that I pretty much got that video. We watched that video and if you were walking next to me people are gonna go " goddam that guy is tall. " During the following later exchange, for the first time, the detectives
advised defendant that two people were killed during the incident:

[ DETECTIV E LE I SH MAN ] : I got news for you, y ou're caught up in a lot of nonsense because there's a few of you. A nd you know what happen when a bunch of guys do something together, somebody talks. And they put it on another person. Listen, y ou can sit here and lie. I'm not going through that.

. . . I got videos right here that says you're lying. [ DEFENDANT ]: I'm not denying I was in Walgreens but I didn't have nothing to do with nothing.

. . . I don't even know what happen ed

. [ DETECTIVE LEISHMAN] : Two people got killed.

. . . Why did we have to tell you that? You really think we don't know you were there? [ DEFENDANT ]: I wasn't there sir.13 A

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- 17 [ DETECTIV E L EISHMAN] : You're there on the videos. [ DEFENDANT ] : In Walgreens? Sir they got killed in Walgreens? [DETECTIVE LEISHMAN]: Let's not play stupid here. We know they were in a car. It's been all over the news for the last three days. You're on video walking r ight up to that car.

. . . The car where two people got killed in. [ DEFENDANT ]: Nah. [ DETECTIVE LEISHMAN] : And lit it on fire. [ DEFENDAN T ]: Impossible.
The detectives also advised defendant that Williams implicat ed him , and
told defendant he needed to "get out in front of this

. "

[ DETECTIVE L EISHMAN ] : I can honestly tell you this you gotta get out in front of this because this is big. [Williams] did a lot of talking today. We just left here at 8 o'clock and now we're back again cause you showed up. We were actually gonna come back and get you tomorrow cause we needed to talk to you. But since you showed up but

. . . [ DEFENDANT ]: Cause I know I didn't do anything wrong sir. [ DETECTIVE LEISHMAN] : That's not what [Williams] said. [ DEFENDANT ]: Well he lying [sic] to ya. He probably want [sic] sir come on sir. If [Williams] did14 A

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- 17 that, if he said I did something wrong, you guys wouldn't even released me earlier. [ DETECTIVE LEISHMAN] : When [Williams] told us all the stuff that happened we went and looked at all the videos that we've been pulling from the past three four days and sure enough we're able to corroborate a lot of stuff he told us and then boom here's a guy towering over everybody walking, wearing the clothes that we recovered from your apartment. During the interrogation, the detectives also made statements to defendant about the possibility of him being charged with the murders and robberies, even though they knew he played a "minimal role ." While m aking these statements, they a gain told defendant he had to "get ahead" of the situation

. Those

statements included the following :

[ DETECTIVE LE ISHMAN ] : You're gonna end up wearing all these charges when you might of just had a minimal role in this whole thing. [DEFENDANT ]: Minimal role in what though sir? I don't even know what's going on. I wouldn't even be here sir. I'm too smarter [sic] than that. I wouldn' t even be here sir. [ DETECTIVE LEISHMAN] : Why do you think you're sitting here talking to us about this? Do you think we just picked you out? All day we been [sic] here watching video after you left and we said holy shit he was just here. [SERGEANT HAMDEH] : Yeah we were kicking ourself [sic] in the ass because we let you go.15 A

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A short time later, as defendant continued to den y any involvement , the detectives warned defendant again:

[ DETECTIVE LEISHMAN] : But this is your opportunity to get in front o f it because you may not have pulled the trigger but you can go to jail just as long as the guy who did. [SERGEANT HAMDEH]: How about this, how about this, I know you didn't pull the trigger. Listen , listen to me, I know you didn't pull the trigger.

. . . Hear me out.

. . . I know you didn't pull the trigger because I got video. You understand that? I know that. I know you didn't do that. But I know you were there. [ DEFENDANT ]: Sir I wasn't there. [ SERGEANT HAMDEH] : Hear me out. I know you were there. I know you were there. [ DEFENDANT ]: I need to see those videos cause I was never on no 14th Ave. [SERGEANT HAMDEH]: When you put all the pieces together

. . . you're gonna be screwed if you don't fucking get ahead of this

. [( Emp hasis added).]
L ater , the detectives again warned defendant about getting "in front" of the charges: [ DETECTIVE LEISHMAN] : The story you're

gonna go with right now, how do you think that's gonna appear in court with a jury?16 A

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- 17 [ DEFENDANT ]: Let the jury decide. [ DETECTIVE LEISHMAN] : If you do that buddy you're never gonna see the light of day, two bodies. [ DEFENDANT] : I don't got nothing to do with no two bodies sir. [ DETECTIVE LEISHMAN] : We're not saying you're the one that did it, but we know you were there with the people that did it [sic] we know you went there with the people that did it. We know your phone is calling the guy that did it. [SERGEANT HAMDEH] : Unfortunately

. . . you might as well been the person that did it. Okay if that's the case unless you get in front of this and help yourself, you might as well been the person that shot the bullet. No, no, hear me out. You migh t as well been the person who did it unless you get in front of this. Cause if you don't get in front of this you're just as guilty. You understand? [ DEFENDANT ]: Can I just see the videos? [SERGEANT HAMDEH] : No, no listen you're just as guilty and be lieve me believe me phone records don't lie. No, no, hear me out phone records don't lie. [ ( Em phasis added ) .] Hamdeh also told him that he was implicated in the crimes because of his presence on the videos, but that he could "minimize [his] damage." Leishman
also told defendant that "[t]he problem here is you're on video. You're with17 A

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them

. . . whether or not you pulled the trigger doesn't mean anything because everybody is going to get charged with that. Whoever wants to cooperate?" and

" we're gonna walk outta this room and you're gonna get hit with both of them

. " (Emphasis added). Although, as noted, d efendant initially denied being with Williams that night and said that he did not know what happened because he was not there , after the detectives reiterated they had video of him at the scene and that
Willia m s implicated him, he eventually stated that " I wasn't there when nobody shot nobody, nobody, burned nobody. I wasn't present sir. " When the detectives responded by stating " You were present at the Walgreens when the igniter fluid was bought to go back there and torch the car , " d efendant admitted tha t he had
been in a minivan driven by Williams and there were one or two other men in the vehicle, but he was only there before and after the homicides took place

. Defendant ultimately admitted that he had been at the Walgreens but
denied that he purchased lighter fluid or had anything to do with setting a fire or otherwise being involved with a crime. When the detectives asked him if he knew the names of the people who were there, defendant said he only knew Williams, and repeated that he did not know who pulled the trigger because he was not there when anyone was shot

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Significantly , t he detectives again told defendant if he " wanted to help [ himself ] out " he would need to "start from the beginning," and tell them the names of people th at were present in the van . They also told him that " [saying] I don't know, I don’t know, that's not helping you." Defendant only reiterated that when he got in the van there were three other people and that one was Williams, but he did not know the othe rs. However, h e eventually told the
detectives that one of the other men in the van was someone known as
"Masterborn

. "
Defendant also told the detectives he kept calling Williams that night because he wanted to buy marijuana from him

. He claim ed that Wi lliams told him where he was, and defendant realized he was nearby, which was when and why defendant got into the van

. Defendant claimed he later asked Williams to let him out of the van
because defendant was concerned that Wi l liams an d the others were planning on "bust[ing] a custy," 4 and he did not want to be involved in light of his own prior criminal history. According to defendant, he was eventually dropped off and then went to the Walgreens. He then explained that outside of Walgree ns, he

4 At trial, Leishman explained that this term meant "they were going to rob a customer."19 A

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gave a dollar to a boy whom the detective stated bought the lighter fluid.
Defendant then again maintained he was not involved in the commission of any
crime. W hen defendant repeatedly stated that none of the vehicle's occupants told him anything about a shooting, the detective responded by telling defendant
he was not "helping [him]self."
The detectives also told defendant that another video showed him wiping prints off the white car, and defendant denied doing so

. 5 When the detectives again asked for the identities of the other men with Williams that night,
defendant expressed that they were not known to him. T he detective told
defendant that by not identifying the others , defendant was "not giving [them] the information [they] need for [defendant] to help [him]self out , " and that

" [ t ] here's only one thing right now that's gonna help you with anything and that's telling us who the other guys were

. " Defendant responded that even if he knew their names, the detectives were not letting him go because they suspected he wiped the prints from the car

. In
response, Hamdeh told him to think about going to trial and how things would

5 This video did not clearly depict the faces of the individuals shown in the footage so the detectives again relied on defendant's height.20 A

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"play out" if he cooperated, rather than what would happen if he continued denying his involvement. After stepping out of the room, the detectives returned and Hamdeh told defendant that the interview was "about over, unless you want to give us anything else that could help you

. " Defendant asked what he could do in order

to walk out of there and Hamdeh told him that was "not happening," but "if you want to help yourself in the future you could tell us something

. " Defendant then asked, "Can you please just give me a chance to talk, please sir," and whether
the re was "nothing I could say, there's nothing I could do to get me outta here right now?" The detective responded, "Nah, not gonna lie to you cause I haven't lied to you these past two hours I haven't lied to you

. "
In the trial judge's ensuing written de cision finding the statement admissible, he found that defendant's "'freedom of action' was sufficiently deprived to show that he was in custody," even though he was "not under formal arrest or in physical restraints

. " He also found that although Hamdeh 6 "certainly did not seek to highlight the significance of the second round of questioning," the detective's characterization of executing the Miranda rights as a "'formality'

6 Both defendant and the trial judge attributed the "formality" comment to Hamd eh, although from the video it appears that Leishman said it. For reasons explained below, i t is of no moment who made the comment.21 A

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was not tantamount to a deprivation of a knowing conveyance of Miranda warnings

. " Citing defendant's prior record of eight arrests, "one indictable conviction, three disorderly persons and one municipal ordinance conviction,"
the judge concluded that defe ndant was "familiar with the justice system

. " The judge acknowledged that, even though it is not known whether defendant was advised of his rights during the prior arrests, "his rights were undoubtedly discussed during prior court proceedings associated w ith those arrests

. "
The judge also found that the questioning of defendant in this matter was "not prolonged in view of underlying events

. " Additionally, although the police "raised their voices at times during the second interrogation," the judge "did not observe anything approaching physical or mental exhaustion on [defendant's] part or any other behavior to suggest that his will was overborne

. " He found that the police "raised their voices out of frustration out of apparent
contradiction or omission by" defendant, and that "the heated discussion that followed was of an emotionally charged nature indicative of the seriousness of
the matter under discussion

. " The judge did not find that defendant appeared intimidated and he still "insisted on conveying his own version of events" while "in the face of heightened emotions

. " Consequently, the judge found beyond a reasonable doubt that defendant knowingly, intelligently, and voluntarily22 A

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waived his Miranda rights prior to making the statement

. The judge al so found
that defendant's letter to the prosecutor was admissible.
II.
A.
Our review of a trial judge '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). Nevertheless, "[w]hen faced with a [challenge to a] trial [judge]'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 judge's determinations based not only on live testimony but also when based on the review of video or documentary evidence because of the j udge's "expertise in fulfilling the role of factfinder." State v. S.S. , 229 N.J. 360, 364

- 65, 379

- 80 (2017)

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We will not reject the trial judge 's factual findings merely because we "disagree [] with the inferences drawn and the evidence accepted by the t rial [judge] or because [we] would have reached a different conclusion." Id. at 374. Only if the judge'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) . When the judge's factual findings are "not supported by sufficient credible evidence in the record," the reviewing court's deference ends. S.S. , 229 N.J. at 361. Then, t he trial judge's interpretation of the law and "the consequences that flow from established facts are not entitled to any special deference." Gamble , 218 N.J. at 425.
B.
With these guiding principles in mind, we turn to defendant's contentions

o n appeal that he did not kn owingly and voluntarily waive his rights because the detective "hastily recited the rights," presented them as a formality, and minimized the importance of the warnings by telling him he was not in trouble and pointing out that he had been able to leave th e police station earlier that day

. He additionally contends that the detectives ' conduct "induced " him i nto waiving his rights and that they deprived him of important information "relating to the nature of the allegations against him," since the detective s had watched the24 A

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surveillance videos and believed defendant was involved in a crime but told him
he was not in trouble

. Defendant further argues that he did not voluntarily give his statement because the police coerced him

. He asserts that the detectiv es repeatedly yelled at him that they had video proof he was involved in the murders, that they misrepresented the videos because it was impossible to identify " anyone from the surveillance videos," and that the detectives lied that Williams told the
detectives that defendant was involved in the murders

. Based on those representations, defendant claims that the detectives "contradicted the Miranda warnings" by telling him that he had to confess "his full involvement in these
offenses" in order to avoid facing murder charges

. We conclude that although, as the trial judge found, the detectives properly administered Miranda warnings, which defendant understood and acknowledged , 7 the combination of the detectives ' r epetitive misleading

7 While, as defendant argues, it is true officers " should scrupulously avoid making comments that minimize the signifi cance of the suspect's signature on that card or form ," Tillery , 238 N.J. at 319 , the detective's first comment that the Miranda warnings were just "a formality , " can be overlooked as an offhand remark that simply preceded the warnings defendant said he un derstood and waived. It is the rest of the statements the officers made that we view as impermissible. See State v. O.D.A.

- C. , No. A

- 2932

- 18, (App. Div. Feb. 8, 2021) (slip op. at 13) (explaining that the detective's characterization of Miranda25 A

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statements telling defendant that talking to them would, in contravention of the
Miranda warnings, help defendant , the detectives imp roperly induced defendant

to give incriminating inf ormation in contravention of his Fi f th Amendment rights . As such, we conclude that his statement should not have been admitted
as evi dence

.

" T he right against self

- incrimination

. . . guaranteed by the Fifth
Amendment to the United States Constitution and this stat e's common law, [is] 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. The importance of that right cannot be overstated. As
Justice Albin stated in L.H. , " [n] o piece of evidence may have greater sw ay over a jury than a defendant's confession. For that reason, it is of critical importance that law enforcement officers use interrogation techniques that will elicit confessions by lawful means. " 239 N.J. at 27

. A defendant may waive his Fifth Amendme nt rights so long as the waiver is made knowingly, intelligently, and voluntarily

. State v. Sims , 466 N.J. Super.
346 , 363 (App. Div. 2021 ) (citing Miranda , 384 U.S. at 444) , certif. granted , __

warnings as a formality was not by itself a problem but all of his statements had to be viewed in context); State v. Cooper , 151 N.J. 326 , 355 (1997) ("[M]isrepresentations alon e are usually insufficient to justify a determination of involuntariness or lack of knowledge.").26 A

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N.J. __ (2021) (slip op. at 1). 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. (alteration in original) (quoting State v. A.M. , 237 N.J. 384, 397 ( 2019) )

. Wh en determining whether "the State has satisfied its burden," a court

must consider the "totality of the circumstances," which include s " 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."
Ibid. (quoting A.M. , 237 N.J. at 397 ). Additionally, a court may consider the
defendant's " previous encounters with law enforcement ," State v. Knight , 183
N.J. 449 , 463 (2005) (citing State v. Presha , 163 N.J. 304 , 313 (2000 ) ) , and the "period of time between 'administration of the [ Miranda ] warnings and the
volunteered statement

. ' " I bid. ( alteration in original) (quoting State v. Timmendequas , 151 N.J. 515, 614 (1999)). The evidence must establish that the statement was given voluntarily and "not

. . . because the defendant's will was
overborne." L.H. , 239 N.J. at 42 (quoting Knight , 183 N.J. at 462)

. Our Court has explained that "[t]o eliminate questions about a suspect's understanding, the entire Miranda form should be read aloud to a suspect being27 A

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interrogated, or the suspect should be asked to read the entire form aloud ," and to the extent that is not done, "the suspect should be asked about his or her literacy and educational background." A.M. , 237 N.J. at 400. In determining whether a waiver has occurred, "[t]he criterion is not solely the language employed but a combinatio n of that articulation and the surrounding facts and
circumstances. " State v. Kremens , 52 N.J. 303, 311 (1968). The focus of a
Miranda analysis should be on whether the defendant had a clear understanding and comprehension of his or her Miranda rights ba sed 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 ) )

.

" 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 de fendant sig ning 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 su s pect's signature on that card or form."
Id. at 319 (concluding that a defendant's signature to a waiver form that only28 A

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acknowledged his rights were read to him did not establish a waiver of his rights). For example, "[i] n [ State ex rel. A.S. ], the 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 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 Puryear , the interrogating officer told defendant "[t]he 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. We found the d efendant's ensuing statement inadmissible because the detective's representation had neutralized the Miranda warning and the defendant therefore did not knowingly, intelligently, and voluntarily waive
his Miranda rights. Id. at 298

- 99.
As we observed in that case, " [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

- 7029 A

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(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 A.S. and Puryear both held the defendants' statements inadmissible because the interrogating officers had contradicted the Miranda warnings by misle ading 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 that the detectiv e telling the defendant that answering his questions
would show that the defendant was a "good person" contradicted the Miranda warnings)

. 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)). "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[] de fendant of his "capacity for self

- determination "'30 A

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and actually induce the incriminating statement, it is not voluntary." Ibid. (quoting State v. Fletcher , 380 N.J. Super. 80 , 89 (App. Div. 2005) ).
A s Justice Albin also explained in L.H. , while certain lies told by interrogating officers are tolerated, inducement s to speak to law enforcement that include express or implied assurances of leniency cannot be tolerated

. Specifically, he sta t ed the followi ng:

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 suspec t 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 Mi randa 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 extracted by threats or violence, n or obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.

. . .

. . . .31 A

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- 17 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 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).] Applying these controlling principles to defendant's contentions on appeal , we conclude that the trial judge erred by denying defendant's motion to suppress his second stat e m ent to police . The statement was obtained after the interrogating detectives repeatedly and persistently told defendant tha t the only way he could help himself was by admitting his role in the subject robberies and
murders. These statements effectively "contradicted the Miranda warnings provided to [defendant]: that anything [he] said in the interview could be used against [him] in a court of law." A.S. , 203 N.J. at 150. Although defendant mai ntained that he had nothing to do with the crimes despite the officers ' representations , because of the officers ' assurances that he could help himself by talking to them , defen dant placed himself with his
codefendant in the vehicle, neighb orhood, and store the police had connected to32 A

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the crimes. Under these circumstances, th e statement should n o t have been
admitted.
While t he trial judge engaged in a detailed analysis of the circumstances , he overlooked the detectives ' false promise s to defendant . W hile on one hand , they told defendant he was not in trouble , on the other t hey falsely told defendant
that he could help himself if he gave a stat e ment , which directly negated the
Miranda warnings and induced defendant to supply incriminating information

. This information includ ed v erification that he was at Walgreens and in the van with Williams and others on the night in question. As we hav e explained, a detective cannot in one breath provide Miranda warnings to a suspect, including the vitally significant fact that anything the suspect says can and will be used against him in a court of law, and in the next, make repeated assurances that speaking with the police will ultimately help th at suspect in the same court of
law. Puryear , 441 N.J. Super. at 2 96

- 97.
T he assurances from the detectives that defend ant could help himself by talking presented an overwhelming enticement to supply incriminating information, with the hope, as defendant stated, he would be released. As such,

t he detectives' assurances "clearly had the likelihood of stripping defendant of his 'capacity for self

- determination

. '" Pillar , 359 N.J. Super. at 272

- 73 (quoting33 A

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- 17

Schneckloth v. Bustamonte , 412 U.S. 218, 225

- 26 (1973) ). These circumstances thereby require the conclusion that the State failed to establish defendant's statement was voluntary beyond a reasonable doubt. See id. at 273.
Because our determination that defendant's statement t o police was inadmissible requires us to vacate his conviction s and remand for a new trial,
we need not address defendant's re m aining contentions about t he trial judge's instructions to the jury, his denial of the motion to acquit , defendant's allegation of ineffective assistance of counsel, or defendant ' s sentence.
The denial of defendant's suppression motion is reversed, his judgment of
conviction is vacated , and the mat t er is remanded for a new trial. Reversed and remanded for further proceedings consistent with our opinion. We do not retain jurisdicti on.