RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5139-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MYRIAM JANVIER,

Defendant-Appellant.

_____________________________

Submitted February 25, 2019 – Decided May 1, 2019

Before Judges Messano, Gooden Brown, and Rose.

On appeal from Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 12-06-1695.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Brian P. Keenan, Assistant Deputy Public 

Defender, of counsel and on the briefs).

Theodore N. Stephens, II, Acting Essex County 

Prosecutor, attorney for respondent (Caroline C. Galda, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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An Essex County grand jury indicted Myriam Janvier (defendant) and 

Krisla Rezireksyon Kris, a/k/a Venette Ovilde, charging them with the murder 

of Rezireksyon's eight-year-old daughter, C.R.K.,

1

and thirty-six other counts 

relating to the maltreatment of C.R.K. and Rezireksyon's two other minor 

children.2 Following a hearing pursuant to N.J.R.E. 104(c), the judge denied in 

part, and granted in part, defendant's motion to suppress a statement given to 

law enforcement authorities. 

Thereafter, defendant pled guilty to first-degree aggravated manslaughter, 

N.J.S.A. 2C:11-4(a)(1), three counts of second-degree endangering the welfare 

of a child, N.J.S.A. 2C:24-4(a); and three counts of third-degree aggravated 

assault, N.J.S.A. 2C:12-1(b)(2).3 The judge sentenced defendant to eighteenyears imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, 

 

1

 We use initials to protect the child's identity. R. 1:38-3(c)(9). Additionally, 

all the children were identified with initials and last name aliases in the 

indictment. The jury verdict sheet reflects the aliases used during trial.

2

 Rezireksyon was charged alone in count thirty-eight with third-degree 

hindering apprehension, N.J.S.A. 2C:29-3(b).

3

 Rezireksyon elected to go to trial. In a separate opinion also filed today in A0469-16, we affirm her judgment of conviction and sentence.
3

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on the aggravated manslaughter conviction, with the remaining sentences 

running concurrent to that sentence.

Before us, defendant raises the following points:

POINT I

THE MOTION JUDGE APPLIED THE WRONG 

STANDARD THEREBY ERRONEOUSLY 

DENYING DEFENDANT'S MOTION TO SUPPRESS 

HER POST-MIRANDA[4] STATEMENT TO THE 

POLICE, WHICH WAS ELICITED USING THE 

QUESTION FIRST, WARN LATER PROCEDURE, 

BARRED UNDER STATE LAW. STATE V. 

O'NEILL, 193 N.J. 148 (2007).

POINT II

THE JUDGE ACCORDED UNDUE WEIGHT TO 

AGGRAVATING FACTORS ONE AND TWO 

BASED ON AN INCORRECT FACTUAL BASIS 

AND IMPROPERLY FOUND AGGRAVATING

FACTOR FIFTEEN IN IMPOSING A MANIFESTLY 

EXCESSIVE SENTENCE THAT REQUIRES 

REVERSAL.

We have considered these arguments in light of the record and applicable legal 

standards. We affirm defendant's conviction and remand the matter for resentencing.

 

4

 Miranda v. Arizona, 384 U.S. 436 (1966).
4

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I.

We explained the significant details regarding the initial police 

investigation in our opinion, State v. Rezireksyon, A-0469-16. On the evening 

of May 22, 2011, after already securing a statement from Rezireksyon, 

Detectives Michael Anthony Davidson and Darryl Holmes, of the Essex County 

Prosecutor's Office and the Irvington Police Department, respectively, took a 

video-recorded statement from defendant. Davidson testified at the pre-trial 

hearing regarding the circumstances surrounding the statement, and the judge 

viewed the video.

Davidson responded to the apartment that defendant and Rezireksyon

occupied to investigate the suspicious death of a child. Davidson saw the dead 

child's body, and was informed by another sergeant that Rezireksyon was the 

mother. As he approached "a makeshift door" in the apartment to investigate 

further, defendant asked Davidson why he was going into her room. Inside, 

Davidson found Rezireksyon's two other children huddled in the corner, but 

showing no signs of injury, except for some minor scars.

Defendant was transported to police headquarters. Davidson, who had 

already taken a statement from Rezireksyon, was unaware of the cause of 

C.R.K.'s death. He testified that defendant was not under arrest or a suspect and 
5

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was free to leave at any time. He did not administer Miranda warnings to 

defendant at the start of the interview, but did so approximately one hour and 

twenty minutes later, after concluding defendant "was more of a co-mother" of 

the children and "had more responsibility to the kids than [he] believed in the 

beginning" of the interview. The interview continued after defendant read the 

Miranda rights aloud from a printed form and signed the waiver. 

In a written decision, the judge concluded that defendant's statements

made prior to Davidson administering Miranda warnings, although voluntarily 

given, were the products of custodial interrogation and must be suppressed. He 

reached a different result regarding statements defendant made after the 

warnings.

The judge concluded that defendant knowingly and voluntarily waived her 

Miranda rights, her statement was "given voluntarily," and it was not the product 

of "psychological pressure, threats, . . . promises" or physical abuse. Citing 

Oregon v. Elstad, he rejected the argument that defendant's post-Miranda

statement was the "fruit of the poisonous tree[]" for the proposition that the 

doctrine "does not apply to . . . a noncoercive Miranda violation." See 470 U.S. 

298, 318 (1985) (holding that "a suspect who has once responded to unwarned 
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yet uncoercive questioning is not thereby disabled from waiving his rights and 

confessing after he has been given the requisite Miranda warnings").

Defendant argues the judge "applied the incorrect, federal standard" in 

refusing to suppress her post-Miranda warning statements and instead should 

have followed the Court's holding in O'Neill, which, she contends, "banned" the 

"'ask first, warn later' interview technique." The State argues that by pleading 

guilty, defendant waived her right to appeal the motion judge's decision. 

Alternatively, the State argues the judge considered all relevant factors as 

outlined in O'Neill and properly admitted the post-Miranda warning portion of 

defendant's statement.

We agree that defendant's guilty plea foreclosed the ability to challenge 

the admission of her post-Miranda warning statements. See State v. Knight, 183 

N.J. 449, 470 (2005) ("[A] defendant who pleads guilty is prohibited from 

raising, on appeal, the contention that the State violated his constitutional rights 

prior to the plea.") (quoting State v. Crawley, 149 N.J. 310, 316 (1997)). As the 

Court explained in Knight, there are generally only three exceptions to the 

waiver rule, none of which apply here. Id. at 471. The first exception is 

provided expressly by Rule 3:5-7(d), which permits a defendant to challenge on 

appeal an unlawful search and seizure of physical evidence after entering a 
7

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guilty plea. Ibid.; see also State v. Robinson, 224 N.J. Super. 495, 500 (App. 

Div. 1988) ("[U]nsuccessful challenges to statements and Miranda violations 

cannot be raised on appeal after a guilty plea pursuant to Rule 3:5-7(d)."). The 

second, expressly permitted by Rule 3:28-6(d), permits a post-guilty-plea appeal 

from an order denying entry into a pre-trial intervention program (PTI). Knight, 

183 N.J. at 471. Lastly, if a defendant enters a conditional guilty plea pursuant 

to Rule 3:9-3(f), she may appeal those issues expressly preserved. Ibid.

In her reply brief, defendant argues we should consider her guilty plea a 

conditional plea because: 1) although the judge informed her at the time that 

she was waiving certain rights by pleading guilty, he failed to advise her she 

was waiving her right to appeal from the pretrial ruling; and, 2) she provided no 

written response to Question 4(e) on the plea form, which reads: "Do you further 

understand that by pleading guilty you are waiving your right to appeal the 

denial of all other pretrial motions except the following: [blank.]" 

"The importance of the constitutional rights being waived when a 

defendant enters a guilty plea necessitates that the knowing and voluntary nature 

of the plea be demonstrated in the record so that it may be reviewed on appeal. " 

State v. Simon, 161 N.J. 416, 443 (1999) (citing Boykin v. Alabama, 395 U.S. 

238, 243 (1969)). Hence, every judge in New Jersey engages in the questioning 
8

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of defendants on a daily basis throughout courtrooms of our state prior to 

accepting a guilty plea. Question 4 on the plea form spotlights these rights.

Subpart (d) of the plea form specifically addresses the holding in Knight

by indicating a defendant does not waive his or her right to appeal the denial of 

a motion to suppress pursuant to Rule 3:5-7(d), or rejection of an application to 

enter PTI. Subpart (e) accomplishes two goals. It specifically advises a 

defendant that he or she is waiving the right to appeal pretrial motions, unless 

the appeal from the decision on a specific pretrial motion is preserved by listing 

it on the plea form.

Here, defendant argues we should interpret the lack of any answer to 

subpart (e) as the equivalent of a conditional guilty plea. However, Rule 3:9-

3(f) requires that a defendant satisfy several conditions before a conditional 

guilty plea is accepted. "[A] defendant may plead guilty while preserving an 

issue for appellate review only with the 'approval of the court and the consent 

of the prosecuting attorney.'" State v. Gonzalez, 254 N.J. Super. 300, 304 (App. 

Div. 1992) (quoting R. 3:9-3(f)). This reservation of "the right to appeal from 

the adverse determination of any specified pretrial motion" must be placed "on 

the record . . . ." R. 3:9-3(f). 
9

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We have chosen not to apply the rule when "[s]trict adherence to [its] 

requirements . . . 'would result in an injustice.'" Gonzalez, 254 N.J. at 304 

(quoting R. 1:1-2(a); see also State v. J.M., 182 N.J. 402, 410 (2005)) 

(considering the "important issue of whether [a] juvenile may present evidence 

at the probable cause portion of the waiver hearing[,]" despite the defendant's 

unconditional guilty plea, "[b]ecause the State failed to raise [the waiver] 

argument below").

Here, there is nothing to suggest that defendant intended to enter a 

conditional guilty plea. There is no evidence whatsoever in the record that 

satisfies the rule's two essential prerequisites — "approval of the court" and 

"consent of the prosecutor." The judge, the prosecutor and defense counsel 

simply never discussed the subject. Cf., State v. Stephenson, 350 N.J. Super. 

517, 519 n.2, (App. Div. 2002) (rejecting the State's argument that the defendant 

waived his right to appeal where defense counsel at the plea hearing indicated 

an intention to appeal the denial of the defendant's pre-trial motion to suppress 

his statement to police). Nevertheless, to avoid any prospective petition seeking 

post-conviction relief on the issue, we address the merits of defendant's claim.

"[O]n appellate review, a trial court's factual findings in support of 

granting or denying a motion to suppress must be upheld when 'those findings 
10 A-5139-16T4

are supported by sufficient credible evidence in the record.'" State v. S.S., 229 

N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). 

"[T]he clearly mistaken/clearly erroneous standard of appellate review" applies 

to factual findings made by the motion judge "based on video recording or 

documentary evidence . . . ." Id. at 381. Legal conclusions reached from those 

facts, however, are subject to our plenary review. State v. Hreha, 217 N.J. 368, 

382 (2014) (citing State v. Gandhi, 201 N.J. 161, 176 (2010)). 

We agree with defendant that the judge's use of the Supreme Court's 

analysis in Elstad to decide the motion was a mistake of law. In O'Neill, the 

Court specifically forged a different path, relying on "our state law privilege 

against self-incrimination . . . ." 193 N.J. at 175. We must, therefore, "decide 

the controversy in the proper light of the applicable law." State v. Lyons, 417 

N.J. Super. 251, 258 (App. Div. 2010) (citing State v. Steele, 92 N.J. Super. 498, 

507 (App. Div. 1966)). 

Contrary to defendant's assertion, the O'Neill Court did not "ban" the 

technique of question first, warn later. The Court specifically said, "[w]e 

emphasize that we are not pronouncing a bright-line rule." 193 N.J. at 181. 

Instead, the Court held that when determining whether to admit post-Miranda-
11 A-5139-16T4

warning statements in this context, "courts should consider all relevant factors," 

which include:

(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.

[Ibid.]

"In a two-step interrogation case, courts must view the totality of the 

circumstances in light of the relevant factors and then determine whether the 

unwarned questioning and admissions rendered the Miranda warnings 

ineffective in providing a defendant the opportunity to exercise the privilege. " 

Id. at 181-82.

Here, several of these factors weigh in favor or suppression. For example, 

Davidson questioned defendant for an extended period before administering the 
12 A-5139-16T4

warnings, the interview was virtually seamless, with the post-Miranda warnings 

portion flowing immediately from the earlier portion, and both parts of the 

interrogation were conducted in the same place by the same officers. The 

detectives never informed defendant that her pre-warning statements would not 

be used against her.

However, these factors only serve to inform a decision on the ultimate 

principal announced in O'Neill: "the admissibility of post-warning statements 

will turn on whether the warnings functioned effectively in providing the 

defendant the ability to exercise his state law privilege against selfincrimination." Id. at 180-81. In this case, we must conclude the Miranda

warnings had the required effect on the interrogation that followed their 

administration. We reach that conclusion because on several occasions during 

the post-warning interrogation, defendant refused to answer certain questions. 

At one point, defendant made clear that she wished to continue with the 

interview, but did not want to respond to a particular question posed. These 

statements by defendant indicate she clearly understood her rights and how to 

exercise them; she had not "crossed a psychological bridge from which there 

was no turning back." Id. at 170.
13 A-5139-16T4

We affirm the denial of defendant's motion to suppress the post-Miranda

warning portion of her statement to the detectives.

II.

In sentencing defendant, the judge found aggravating factors one, two, 

nine and fifteen. See N.J.S.A. 2C:44-1(a)(1) ("nature and circumstances of the 

offense, . . . including whether . . . it was committed in an especially heinous, 

cruel, or depraved manner"); (a)(2) ("seriousness of harm inflicted on the victim, 

including whether . . . defendant knew . . . the victim . . . was particularly 

vulnerable or incapable of resistance due to . . . extreme youth . . ."); (a)(9) (the 

need to deter defendant and others); and (a)(15) ("[t]he offense involved an act 

of domestic violence, as . . . defined in [N.J.S.A. 2C:25-19(a)]," and the 

defendant committed an "act of domestic violence on more than one occasion"). 

The judge also found mitigating factor seven. See N.J.S.A. 2C:44-1(b)(7) (no 

prior criminal history).

Defendant contends the judge found aggravating factors one and two 

based on facts unsupported by substantial evidence in the record, and 

aggravating factor fifteen, which, as a matter of law, did not apply. We agree. 

"Appellate review of sentencing decisions is relatively narrow and is 

governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 
14 A-5139-16T4

297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). We consider 

whether the trial court has "appl[ied] correct legal principles in exercising its 

discretion." Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 

363 (1984)). As part of our review, we must determine whether "the aggravating 

and mitigating factors found by the sentencing court were not based upon 

competent and credible evidence in the record . . . ." State v. Fuentes, 217 N.J.

57, 70 (2014). We will affirm the sentence if: 

(1) the trial court followed the sentencing guidelines; 

(2) its findings of fact and application of aggravating 

and mitigating factors were "based upon competent 

credible evidence in the record;" and 

(3) "the application of the guidelines to the facts" of the 

case does not "shock[ ] the judicial conscience."

[State v. A.T.C., 454 N.J. Super. 235, 254 (App. Div. 

2018) (alteration in original) (quoting State v. Bolvito, 

217 N.J. 221, 228 (2014)).]

And, while a sentence imposed in accordance with a plea bargain, as this was, 

is presumptively reasonable, we should vacate and remand the matter for 

resentencing "if [the sentence] does not comport with the sentencing provisions 

of our Code of Criminal Justice." Fuentes, 217 N.J. at 71.

The State concedes that aggravating factor fifteen does not apply because 

an act of domestic violence, as defined by N.J.S.A. 2C:25-19(a), can only be 
15 A-5139-16T4

"inflicted upon a person protected under" the Prevention of Domestic Violence 

Act, N.J.S.A. 2C:25-17 to -35. A person protected under the Act is a "[v]ictim 

of domestic violence" and generally must be "[eighteen] years of age or older or 

. . . an emancipated minor . . . ." N.J.S.A. 2C:25-19(d). The victims here were 

all very young children, and, therefore, defendant's offenses did not "involve[]

an act of domestic violence . . . ." N.J.S.A. 2C:44-1(a)(15).

We may "remand for resentencing if the trial court considers an 

aggravating factor that is inappropriate to a particular defendant or to the offense 

at issue." Fuentes, 217 N.J. at 70 (citing State v. Pineda, 119 N.J. 621, 628 

(1990)). The State urges us to avoid a remand because the error as to factor 

fifteen "had an inconsequential effect on the overall sentence." Perhaps. 

However, there are other reasons why a remand is required.

The judge premised his findings as to aggravating factor one upon "ample 

evidence in the record, including evidence from co-defendant's trial regarding 

the malnutrition of the children, the children's fractured bones from beatings,

and the ropes used to tie the children to a radiator, which occurred over about 

three years," which demonstrated the "especially cruel manner and prolonged 

period in which the crimes were committed against the child victims." (emphasis 

added). In finding factor two, the judge noted that "the duration of the offenses 
16 A-5139-16T4

spanned about three years," during which the victims' "extreme malnourishment 

and injuries . . . prevented them from resisting defendant." (emphasis added).

However, the basis for finding defendant participated in the horrific 

treatment of the children for three years is, at the least, unclear. In her statement 

to police, defendant claimed she first started living with Rezireksyon and the 

children in August 2010, approximately nine months prior to the interrogation. 5 

The indictment only alleged conduct occurred between August 2010 and May 

2011, when C.R.K. was found dead in the apartment. Defendant did not specify 

the period of time she spent with Rezireksyon and the children during her guilty 

plea allocution. As a result, we agree there was no substantial credible evidence 

that defendant engaged in a three-year period of child abuse and neglect. We 

accordingly vacate the sentence imposed and remand for re-sentencing.

We affirm defendant's conviction. We vacate the sentence imposed and 

remand to the trial court for re-sentencing. We do not retain jurisdiction. 

 

5

 In the statement she gave to police, Rezireksyon said defendant had been living

with her and the children for between three and six months.