RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1591-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

P.J.M.,

Defendant-Appellant.

__________________________

Argued March 20, 2019 – Decided January 22, 2020

Before Judges Fuentes, Accurso and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Cumberland County, Indictment No. 16-01-

0064.

Joseph J. Russo, Deputy Public Defender, argued the 

cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Stephen W. Kirsch, Assistant 

Deputy Public Defender, of counsel and on the brief).

Evgeniya Sitnikova, Deputy Attorney General, argued 

the cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Evgeniya Sitnikova, of counsel and 

on the brief).

NOT FOR PUBLICATION WITHOUT THE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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The opinion of the court was delivered by

FUENTES, P.J.A.D.

A Cumberland County grand jury returned an indictment against 

defendant P.J.M. charging him with first degree aggravated sexual assault,

N.J.S.A. 2C:14-2a(1), and second degree endangering the welfare of a child,

N.J.S.A. 2C:24-4a(1). Defendant is the paternal uncle of A.J.C. (Amelia)

1

, the

victim of these crimes. According to Amelia, defendant sexually assaulted her 

between November 6, 2006 and November 5, 2009, when she was between six 

and eight years old.

The indictment also contained three additional counts charging defendant 

with second degree sexual assault, N.J.S.A. 2C:14-2b; first degree aggravated 

sexual assault N.J.S.A. 2C:14-2a(1); and second degree endangering the welfare 

of a child, 2C:24-4a(1). The victim of these crimes, J.C., claimed defendant 

sexually assaulted her in the City of Bridgeton between June 17, 2007 and June 

16, 2008 when she was between eight and nine years old.

The allegations made by these two children were considered two separate

incidents. The State decided to try the charges involving Amelia's allegations

1 Pursuant to Rule 1:38-3(c)(9), we use pseudonyms or initials to protect the 

privacy of the children and members of their family who have the same last 

name.
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first. A petit jury convicted defendant of first degree aggravated sexual assault

and third degree endangering the welfare of a child, as a lesser included offense 

of second degree endangering the welfare of a child.2 The trial court thereafter

granted the State's motion to dismiss the three charges involving J.C., which 

were reflected in counts three, four, and five of the indictment.

At the sentencing hearing, the trial court merged the third degree 

endangering the welfare of a child conviction with the first degree aggravated 

sexual assault and sentenced defendant to a term of sixteen years, with an eightyfive percent period of parole ineligibility and five years of parole supervision as 

required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.1.

2 N.J.S.A. 2C:24-4(a)(1) provides:

Any person having a legal duty for the care of a child 

or who has assumed responsibility for the care of a 

child who engages in sexual conduct which would 

impair or debauch the morals of the child is guilty of a 

crime of the second degree. Any other person who 

engages in conduct or who causes harm as described in 

this paragraph to a child is guilty of a crime of the third 

degree.

[(Emphasis added).]

Because defendant was convicted of third degree endangering the welfare of a 

child, we infer the jury found the State did not prove, beyond a reasonable doubt, 

he had "a legal duty" or had "assumed responsibility for the care of" Amelia at 

the time he sexually assaulted her. 
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A-1591-17T1

In this appeal, defendant alleges that while he was detained in the County 

Jail in connection with these charges, a representative of the Division of Child 

Protection and Permanency (Division) "interrogated" him concerning the 

allegations made by his niece without first informing his attorney and without 

advising him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). 

Defendant also argues that the trial judge erred in denying his motion to suppress 

an incriminating statement he made to the Division caseworker.

The judge found the Division caseworker was acting on behalf of the State

but was not conducting a criminal investigation at the time she interviewed 

defendant. The judge also found that the law enforcement agents who 

interrogated defendant apprised him of his rights under Miranda at the time he 

was arrested, six weeks before his interactions with the Division caseworker. 

The motion judge held this waiver remained in full force and effect at the time 

defendant was interviewed by the Division caseworker.

The State argues we should uphold the judge's findings because they were 

based on his assessment of defendant's understanding under the totality of the 

circumstances and there is "no bright-line rule" that establishes when the State 

is required to re-administer Miranda warnings. According to the State, the judge 

properly found that additional warnings were not warranted "because the time 
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A-1591-17T1

interval between the interviews on its own did not vitiate the existing warning. " 

After reviewing the record developed before the motion judge, we reverse. 

I

The Investigation

On April 7, 2014, Amelia's younger sister A.C. (Anita) attended a child 

abuse prevention program held at her elementary school. At the conclusion of 

the program, Anita approached the school's counselor, Maria Lopez, and told 

her she overheard a conversation her older sister Amelia had with their mother

about sexual abuse. Counselor Lopez reported Anita's allegations to the 

Bridgeton Police Department.

Bridgeton Detectives Kenneth Leyman and Miguel Martinez were 

dispatched to the school that same day to investigate. After speaking to 

Counselor Lopez, the detectives drove to Amelia's residence. After briefly 

discussing the allegations with Amelia and her mother, the detectives decided 

to take them to the Bridgeton police station to interview them formally. Amelia 

was thirteen years old at the time. Detective Leyman testified that Counselor 

Lopez told him the family was a "Spanish speaking . . . household[.]" Detective 

Martinez spoke Spanish and was prepared to interpret in the event Amelia or her 

mother had any difficulty understanding English or expressing themselves in 
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A-1591-17T1

English. However, Detective Leyman testified that Amelia was "very fluent" in 

English.

According to Detective Leyman, Amelia was very upset and "basically 

started to cry" when he asked her if she knew why she was there. He described 

her demeanor throughout the interview as "[v]ery solemn." She "sobbed a lot[,]

. . . [w]as unable to keep her eyes up[,] . . . [and] [was] just very, very distraught." 

Notwithstanding her distressed emotional state, Detective Leyman testified that 

Amelia was eventually able to describe what occurred. She told Detective 

Leyman that defendant began to sexually molest her when she was 

approximately six years old and continued until she was eight.

Because Amelia "was unable to verbalize some of the information, due to 

the fact that she was crying[,]" Detective Leyman "offered her a pen and a pad 

of paper[.]" As part of his direct examination, the prosecutor did not ask 

Detective Leyman to produce the paper or disclose what Amelia wrote. In 

response to defense counsel's cross-examination, Detective Leyman testified 

that Amelia only wrote "sexual intercourse" on the piece of paper. Defense 

counsel pursued this line of questioning with Detective Leyman:

Q. Okay. So she never actually said he touched me, he 

did this to me, he put his penis inside of me. She never 

actually said those words to you; correct?
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A. During the interview she described the scenario little 

by little. I mean, there were words exchanged. As time 

went on, she was able to answer questions. She just 

wasn’t able to give elaborate answers on those 

questions verbally.

Q. Okay. So you didn’t actually get a lot of detail from 

her. Is that correct?

A. Not at that time, no.

Q. Was there ever a point in time where you 

interviewed her again and got more detail?

A. Well, the -- as to location, things of that nature, but 

during the --

Q. But you never actually got more detail as to what 

actually happened to her; correct?

A. I was able to get the abuse scenario; the position,

where it happened, as far as not location geographically

but the area that -- or what they were in at the time of 

the assaults. I was able to get the positions of the sexual

encounters, as far as their positioning to one another 

being missionary. I was able to determine how their 

clothing was positioned during that time.

Q. Okay. Let’s talk about that. In regards [sic] to her 

clothing, it’s fair to say that she told you that they were 

both undressed from the waist down. Is that correct?

A. Yes, ma’am.

Q. She said that neither of them had any pants on?

A. Yes. 
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Detective Leyman characterized Amelia's mother's attitude as 

"supportive." Conversely, he described Amelia's father's demeanor as

"indifferent" and defensive of his brother. According to Detective Leyman,

Amelia's father did not believe his daughter's allegations against defendant.

II

Complaining Witness' Testimony

Amelia was sixteen years old at the time she testified at defendant's trial. 

It is undisputed that defendant resided with Amelia and her family at the time 

she claimed he sexually assaulted her. Amelia testified she was six years old 

when she accompanied defendant to the laundromat on a regular basis to wash 

the family's clothes. The prosecutor asked Amelia to describe what occurred on 

these trips to the laundromat:

Q. Okay. [Amelia], was there a time when . . . your 

uncle did something to you when you were on one of 

those errands?

A. Yes.

. . . .

Q. Did he do something to you?

A. Yes.

Q. Was this something that made you feel bad?

A. (No audible response)
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A-1591-17T1

Q. You’re nodding your head. You’ve got to give

an answer.

A. Yes. Yes.

. . . .

Q. Okay. Can we start with maybe where it might have 

happened? Where would it happen?

A. It was like, okay, there was one time at the 

laundromat and the other times would be at, like, a 

deserted area or near like an ocean or like a sea.

Q. Okay. Okay. Now, you’re talking about a couple of 

times. How many times . . . did your uncle do 

something to you?

A. I can’t count how many times but it was many times. 

When the prosecutor asked her to "roughly" recall how many times, 

Amelia responded: "[s]ix . . . maybe around eight" times over approximately 

two years. Amelia also testified that these encounters occurred in Greenwich

Township. Amelia testified that she took Detective Leyman to the places where 

defendant sexually assaulted her. When asked how she was able to remember, 

Amelia explained: "Because we went by car and there [were] windows around 

and I could see like around, and also there were some places that were where me 

and my dad go fishing." She also said defendant took her to these places when 

they were the only two people in the minivan. 
10 A-1591-17T1

The prosecutor provided Amelia with a copy of the transcript of her 

interview by Detective Leyman to refresh her recollection. After Amelia 

reviewed the statements she made at that time, the prosecutor asked her to 

describe what occurred. Amelia testified that defendant would first park the 

minivan and exit the vehicle from the driver-side door. She described how the 

sexual assaults occurred in response to the prosecutor's questions:

Q. Okay. And then where would he go?

A. He would shut the door and then he would go around 

to the -- there was a slide door. Then he would open the 

door.

Q. Okay. And where were you at that point?

A. Well, it was a slide door and then I would be seated 

on the back seat.

Q. Would he ever -- well, talking about this in -- first 

incident, if you can remember. You’re on the seat. Does 

he position you in a certain way?

A. Yes.

Q. And how was that?

A. My back would always be on the seat.

Q. So would he lay you down on your back –

A. Yes.

Q. -- on the seat?
11 A-1591-17T1

A. Yes. 

At this point, defense counsel requested a sidebar conference. Although 

this part of the transcript contains a number of "inaudible" references in lieu of 

actual words, it appears defense counsel objected and argued the prosecutor was 

improperly asking leading questions. The trial judge overruled the objection

and the prosecutor resumed her direct examination of the witness. Amelia 

described how defendant would lay her down on her back and take down her 

"undergarment." Because this "was like a regular-type thing," Amelia testified 

that sometimes she "would just take them off." When asked to clarify, Amelia 

stated that her underwear "would be below my ankles. Since I’m laying down, 

my ankles would touch the floor." 

The prosecutor asked Amelia to describe what happened next:

A. I would hear his zipper go down and he would take 

down his pants.

Q. And then what would happen?

A. And then he would take out his –

Q. He would take -- you have to say the word? He

would take out his what?

A. God. He would take out his --

Q. Do you know what word you want to use?

A. Yes.
12 A-1591-17T1

Q. Do you have an answer?

A. Yes. His penis. 

Q. And after he would remove his penis, what would he 

do? Remove his penis from his pants, I should say.

A. He would put it inside my vagina.

Q. Would he say anything to you while he did this to 

you?

A. No.

Q. And this was what you can remember being the first 

time the [d]efendant did this to you?

A. Yes.

Q. Now, you said that . . . it happen[ed] a number of 

times over two years. Was this how it always

happened?

A. Yes. 

III

Complaining Witness's Father's Testimony

Amelia's father D.J.A. (Diego), who is also defendant's brother, testified 

as a witness for the State. He testified that starting in either 2003 or 2005, 

defendant lived with him, his wife, and his two daughters, Amelia and Anita,

for a period of seven years. He also confirmed that defendant owned a minivan 

and would take Amelia with him to the laundromat. When the prosecutor asked 
13 A-1591-17T1

him about his relationship with defendant, Diego responded: " [w]e love each 

other a lot." 

Diego testified that he did not believe his daughter when his wife first told 

him that Amelia had accused his brother of sexually assaulting her. He testified 

that he asked Amelia directly "what happened" several times; but "she did not 

tell [him] anything." He also claimed he "felt bad" when the police officers 

came to his house and told him that Amelia alleged defendant had sexually 

assaulted her. Diego decided to personally confront his brother about these 

allegations "a couple of days" after he was arrested. This prompted the 

following questions by the prosecutor:

Q. Okay. And why do you talk to him?

A. Because I was going to ask him for the truth. If it 

happened or if it did not happen.

Q. And by the truth, are you referring to the allegations 

that [Amelia] made?

A. Yes.

Q. Did you ask him if it were true?

A. Yes.

Q. And what did he tell you?

A. He responded that it was true.

Q. How was your brother’s emotion when he said
14 A-1591-17T1

that to you?

A. He said that, I felt very bad. I don’t know how

to --

Q. Did you see him act in a certain way?

A. Yes.

Q. And how was that?

A. He -- when I went to see him in -- at the jail,3 he

started crying.

The prosecutor concluded his direct examination by asking Diego whether 

defendant ever said anything to him "about forgiveness" during this 

conversation. Diego testified that defendant specifically asked him for his 

forgiveness. 

On cross-examination by defense counsel, Diego testified that he helped 

defendant monetarily even after he told him he sexually molested Amelia.

Diego also testified that after defendant was arrested "the police and people from 

the Prosecutor’s Office" came to his house and told him that he had to be 

supportive of Amelia. Diego also claimed these same State agents warned him 

3 Diego's disclosure of defendant's detention status prompted defense counsel 

to move for a mistrial. At a sidebar conference, defense counsel emphasized 

that the witness had been previously instructed not to mention defendant's 

detention status in the presence of the jury. The judge characterized the witness' 

testimony as "a passing reference" that was "not overly prejudicial" and 

summarily denied the motion.
15 A-1591-17T1

"about things that could happen" if he did not believe Amelia's account of the

events. Finally, in response to defense counsel's questions, Diego testified that 

he did not disclose to the police the conversation he had with defendant at the 

jail until 2015. 

IV

Division Investigator's Testimony

The State also called as a witness Division caseworker and investigator

Mila Tirado. She described her primary responsibility is "[t]o ensure the safety 

of the children." This broad mandate includes investigating allegations of sexual

abuse of children. At the time the trial began in February 2017, Tirado had been 

employed by the Division in this capacity for six years. She was assigned to 

investigate the allegations of sexual abuse made by Amelia against defendant. 

She was also aware that the Bridgeton Police Department was investigating the 

same allegations to determine whether a crime had been committed. 

Tirado testified, however, that she was charged by the Division to conduct 

an independent investigation "[t]o make sure that the parents weren’t abusive or 

weren’t neglectful, or anybody in a caregiver role." In this capacity, Tirado 

testified that even "if there is a substantiation of abuse, whether it’s sexual or 

physical[,]" she does not file criminal charges against the abuser. She testified 
16 A-1591-17T1

that only law enforcement agencies were authorized to determine whether a 

crime has been committed. 

Tirado explained that she was tasked with investigating the allegations of 

sexual abuse against defendant because he had at times functioned as a caregiver 

to Amelia. In response to the prosecutor's question, Tirado also made clear that 

she was fluent in Spanish because it was the dominant language in her home and 

consequently her "first language" as a child. She did not have any difficulty 

communicating with defendant or Amelia's parents.4 

Tirado testified that according to established Division protocols, a 

caseworker assigned to investigate allegations of child sexual abuse must allow

criminal law enforcement investigators to take the "lead role." She explained 

that law enforcement investigators who are charged with investigating these 

crimes are specially trained to interview children. After speaking with the lead 

detective in the Bridgeton Police Department on April 8, 2014, she began her 

own independent investigation. However, Tirado emphasized "that I’m allowed 

to go out and see the children. I just can’t talk about the actual sex abuse. I can 

ask general safety questions." 

4 Both of Amelia's parents testified at trial through court certified Spanish 

language interpreters. Defendant was also provided with an interpreter 

throughout the trial. 
17 A-1591-17T1

In accordance with Division policy, Tirado testified she was also required 

to interview the alleged perpetrator. She testified that she had interviewed 

"hundreds" of alleged perpetrators during her career as a Division investigator.

Tirado also made clear that she did not receive any direction about how to 

interview defendant from the Bridgeton Police Department or the Cumberland 

County Prosecutor’s Office. In response to the prosecutor's question, Tirado 

testified that she did not audio-record her interview with defendant because she 

was not required to do so by the Division. 

She also testified that during the interview, she identified herself as a 

Division investigator and told defendant that "[m]y purpose in speaking with 

him was to see if any abuse occurred . . . [t]o get his side of the story." She did 

not advise defendant of his rights under Miranda before starting the interview.

She conducted the interview in Spanish and did not have any difficulty 

communicating with defendant. When she asked defendant "what happened 

between him and [Amelia]," he merely responded that "he made a bad decision."

When she asked him whether he had had "sex with her", he answered: "[y]es." 

Tirado testified that defendant was aware that Amelia had filed a 

complaint against him accusing him of having sexually molested her. Tirado

testified that she asked defendant to describe the details of the sexual abuse. In 
18 A-1591-17T1

response to the prosecutor's questions, Tirado elaborated on what defendant 

allegedly told her:

A: [T]he devil got a hold of his mind. No, he -- the devil 

got a hold of him and he lost his mind. I’m not exactly 

sure if it -- what. It’s in my report but, you know, 

exactly what came first. I think he said the devil got a 

hold of him and that he lost his mind.

Q. Was that something that he said to you once?

A. He kept saying it. He kept repeating that, you know, 

he lost his mind.

Q. Now, again, by way of the [d]efendant’s demeanor, 

can you describe his demeanor during the interview 

with you?

A. His -- he just seemed taken back, a little shocked,

nervous.

Q. And is this -- you said you did a good number of 

interviews. Is this behavior common with these kinds

of interviews?

A. Yes.

Q. Now, Ms. Tirado, did you ask him anything else in 

regards to the abuse?

A. Well, I asked him for details but he didn’t respond.

Q. So did you ask him a number of times for additional 

details?

A. Yes.
19 A-1591-17T1

Q. And those answers that you just gave us, were those 

answers that he gave in response to your questions?

A. Yes.

Q. Did he indicate to you whether or not he had

made a mistake?

A. Yes. Yes.

Q. And what was it that he said?

A. I don’t recall the exact words.5

Okay. He said that he made a mistake with her and he 

was not sure why. 

On cross-examination, Tirado testified her interview took approximately 

twenty-five minutes. By contrast, her thirteen-page investigation report of the

incident dedicated only a two-sentence paragraph to defendant's interview. 

Tirado also testified that she took notes during her interview but did not provide 

a copy to either the Prosecutor’s Office or defense counsel. Furthermore, 

although she typed "what happened with the interview right away[,]" she 

completed her report "two weeks after." 

Tirado testified that she was in contact with the police "from the time . . .

these allegations were initially made." She also watched the video record of 

5 To refresh her recollection, the prosecutor showed the witness a Division 

Investigation Report, which had been previously marked for identification.
20 A-1591-17T1

Amelia's interview conducted by the detectives who were investigating the 

allegations and asked them for a copy of the child's statement. Tirado also 

interviewed Amelia "as well as the other children [who] were in the home." In 

response to defense counsel's question, Tirado elaborated on the substance of 

the "safety questions" she asked the children, including Amelia:

Q. What do those general safety questions include?

A. Do they feel safe in their home? Are they afraid of 

anyone? Forms of discipline?

Q. Do you ask them whether or not they’ve been 

touched inappropriately by anybody inside of the 

house?

A. Yes.

Q. Do you also ask them whether or not they’ve been 

touched inappropriately by anybody at all, not just 

somebody inside the house?

A. Yes.

Q. And are those safety questions standard questions 

that you ask when you go out for any investigation?

A. Yes.

Returning to the thirteen-page Division report Tirado submitted in this 

case, defense counsel asked Tirado about certain allegations Amelia made to a 

pediatrician who conducted a physical examination on the child. Specifically, 

defense counsel asked Tirado:
21 A-1591-17T1

Q. With regard to the interview that [Amelia] gave to 

the NJ Cares doctor, at some point in time, is it fair to 

say that she told the NJ Cares doctor, she alleged that 

[defendant] also took pictures of her with his cell phone 

and that he showed her pornographic videos while they 

were in his car, also?

A. Yes. Yes.

Q. Okay. But from your understanding, she never said 

that in her interview with Detective Leyman; correct?

A. Correct.

Defense counsel questioned Tirado about defendant's references to the 

devil and noted that she wrote in her report that defendant "appeared confused 

and disoriented during [her] interview." Defense counsel also questioned Tirado 

about Amelia's father, Diego, and his initial concerns about his daughter's 

credibility. Defense counsel asked Tirado:

Q. Did he, in fact, say that [Amelia] had a history of 

making things up?

A. He said that -- he -- I asked him if he believed his 

daughter. "He told the worker he wanted to make sure 

it happened because [Amelia] has a history of making 

things up." And he gave an example about, she lied 

about -- 

The record shows the trial judge interrupted the witness's testimony and 

sua sponte requested a sidebar conference with counsel. At this point, the 

transcript of the sidebar conference states: "Whereupon a significantly inaudible 
22 A-1591-17T1

sidebar discussion commenced . . . [.]" The few audible words included in the 

transcript are not enough to infer, within a reasonable degree of reliability, the 

nature of the discussion, the legal issues raised, or the ultimate decision reached 

by the trial judge. When the sidebar conference ended, defense counsel asked 

Tirado the following question:

Q. Aside from the time . . . that’s specifically mentioned 

in your report, did you ever inquire with [Amelia’s] 

parents as to whether or not there were any other times?

A. No. 

Defendant did not call any witnesses and opted not to testify in his own 

defense. Against this record, defendant raises the following arguments in this 

appeal.

V

POINT I 

THE JUDGE IMPROPERLY DENIED 

DEFENDANT'S MOTION TO EXCLUDE HIS 

STATEMENT TO A DCP&P INVESTIGATOR THAT 

WAS THE PRODUCT OF AN UNRECORDED, 

UNWARNED CUSTODIAL INTERROGATION IN 

VIOLATION OF HIS FIFTH AND SIXTH 

AMENDMENT RIGHTS AND OF HIS STATE 

COMMON-LAW RIGHT AGAINST SELFINCRIMINATION AND STATECONSTITUTIONAL RIGHT TO COUNSEL.

A. Under Both The Fifth Amendment 

And New Jersey Common Law, For Two 
23 A-1591-17T1

Independent Reasons, New Miranda

Warnings Were Required In Order For 

Investigator Tirado To Obtain A Knowing 

And Voluntary Waiver From Defendant Of 

His Fifth Amendment And State-Law 

Rights Against Self-Incrimination.

(1) The Totality Of The Circumstances 

Warranted A Finding That Defendant 

Could Not Knowingly And Voluntarily 

Waive His Rights Without New Miranda

Warnings.

(2) In Defendant's First Interrogation, He 

Invoked His Right To Counsel, And, Thus, 

Under State v. Hartley, New Miranda

Warnings Were Required Before A New 

Interrogation Could Occur.

B. Under The Sixth Amendment And The 

State Constitution, Defendant Should Not 

Have Been Interrogated In The Manner 

That He Was By Investigator Tirado Once 

His Sixth Amendment Right To Counsel 

Had Attached.

 (1) Even The Diminished Version Of The 

Sixth Amendment Right To Counsel That 

Is Recognized In Montejo v. Louisiana, 

Mandated That Reasonably 

Contemporaneous Miranda Warnings Must 

Be Given To A Defendant In Order For 

That Defendant To Properly Waive The 

Sixth Amendment Right To Counsel.

(2) Even If The Sixth Amendment Right To 

Counsel Could Possibly Be Deemed To Be 

Waived Here Under Montejo, The New 
24 A-1591-17T1

Jersey Constitution And Common Law 

Would Mandate Suppression.

POINT II

THE TRIAL JUDGE MERGED A CONVICTION, 

AND THEN ERRONEOUSLY SENTENCED 

DEFENDANT TO PAY PENALTIES ON THAT 

CONVICTION ANYWAY; THE JUDGE ALSO 

ERRONEOUSLY IMPOSED THE MAXIMUM 

PENALTY UNDER N.J.S.A. 2C:14-10 WITH NO 

REFERENCE TO DEFENDANT'S ABILITY TO PAY. 

(Not Raised Below)

After reviewing the record developed before the trial court, we reverse 

defendant's conviction and remand this matter for a new trial. 

We are satisfied the trial judge committed reversible error when he denied 

defense counsel's motion to bar the admission of inculpatory statements 

defendant allegedly made to Division investigator Tirado when she interviewed 

him at the county jail. We hold Tirado was required to apprise defendant of his 

Miranda rights because she interviewed him in a custodial setting. Under the 

totality of the circumstances, defendant's waiver of his Miranda rights thirty-six 

days earlier when he was interrogated at the police station by the two detectives 

was not sufficient to find, beyond a reasonable doubt, that his waiver remained 

legally viable. However, we hold that Tirado did not violate defendant's Sixth 

Amendment right to counsel when she interviewed him without his attorney's 

consent.
25 A-1591-17T1

Defendant was arrested on these charges on April 7, 2014. Bridgeton 

Police Detectives Leyman and Martinez administered Miranda warnings to 

defendant at the police station. Defendant thereafter voluntarily waived his Fifth 

Amendment rights and agreed to answer the detectives' questions during the 

following two hours. Defendant did not make any incriminating statements 

during this interrogation. He was transported to the county jail and held there 

until his trial and subsequent conviction. On May 16, 2014, thirty-six days after 

he was first apprised of his Miranda rights, Tirado interviewed defendant at the 

county jail without his attorney's knowledge or consent and without again 

informing him of his Miranda rights.

At the N.J.R.E. 104(c) evidentiary hearing conducted by the judge before 

the start of trial, Tirado testified the Division received a referral from the 

Bridgeton Police Department involving allegations of sexual abuse of a child by 

her paternal uncle. The victim was then thirteen years old. Tirado testified her 

responsibility was to determine whether there was evidence that the child had 

been abused and whether the parents were aware of the abuse. She first 

interviewed the victim, her siblings, and the parents.

Tirado testified that she was also required to interview the perpetrator of 

the abuse. It is undisputed that at the time Tirado interviewed defendant at the 

Cumberland County Jail: (1) she had spoken with law enforcement agents 
26 A-1591-17T1

assigned to investigate the case; (2) she had viewed the video-audio record of 

the child's interview by law enforcement detectives; (3) she had read the 

statement defendant gave to law enforcement agents after he was given Miranda

warnings; and (4) she knew defendant had been assigned an attorney to represent 

him in this case.

In response to the prosecutor's questions, Tirado made clear that she was 

conducting an independent investigation. She did not ask any questions on 

behalf of the Prosecutor's Office nor was she ever requested by any law 

enforcement agent to do so. She also was not contacted by any attorney on 

behalf of defendant. The purpose of her interview was to determine whether 

defendant had abused his niece.

Q. Now, was the purpose of your interview to gain 

additional evidence that could be used in the 

prosecution against [defendant], or was it to gain 

information to determine whether or not a 

substantiation of abuse or neglect was proper?

A. To see whether a substantiation of abuse or neglect 

was conducted.

Q. Now, when you sit down with [defendant] in this 

isolated area that you’re speaking about, when you first 

sit down with him, did you at any time provide what 

law enforcement typically refers to as Miranda

warnings?

A. No.
27 A-1591-17T1

Q. Okay. And are you familiar with the term Miranda

warnings?

A. Yes. 

Tirado also testified that defendant never told her that he did not want to answer 

her questions or asked her to stop the interview. 

On cross-examination at the N.J.R.E. 104(c) hearing, Tirado admitted it 

is "normal" for her to inform the police of anything "criminal" she discovers in 

the course of her investigation. 

Q. So on a regular basis, if . . . somebody admits to 

something or you -- some allegations, you hand that 

information over; correct?

A. Yes.

Q. And you knew there were criminal charges already 

pending against [defendant]; correct, when you 

interviewed him?

A. Yes. 

The trial judge found defendant was in a custodial setting at the time the 

Division investigator interviewed him at the county jail. The judge also found 

that under these circumstances, the Division investigator was required to advise 

defendant of his Miranda rights and obtained his knowing, intelligent waiver of 

those constitutional rights before asking him any questions related to these 

charges. We agree.
28 A-1591-17T1

The facts we confront here are similar to the facts this court addressed in 

State v. Helewa, 223 N.J. Super. 40 (App. Div. 1988). In Helewa, the defendant 

was arrested by Old Bridge Township Police Department detectives and charged 

with sexually assaulting his two teenaged daughters. Id. at 42. He was 

transported to police headquarters, advised of his Miranda rights "and given a 

Miranda warning card . . . [.]" Ibid. The defendant read the warning card, signed 

it in the presence of a police officer, and did not request an attorney. Ibid. 

However, unlike what occurred here, the defendant in Helewa was not 

questioned by law enforcement agents until he was transferred to the Middlesex 

County Adult Corrections Center (Corrections Center) five hours later. Ibid.

A Division6caseworker interviewed the defendant's wife and daughters 

on the evening of the defendant's arrest. Ibid. Although she asked to interview 

the defendant that night as well, Old Bridge Police Officers requested that she

postpone his interview. Ibid. The caseworker also obtained a copy of the 

complaint the police filed against the defendant and the Miranda card he signed. 

Id. at 42-43. We thus noted that the caseworker "was aware that [the] defendant 

had been advised of his rights" when she arrived to interview him the following 

day at the Corrections Center. Id. at 43.

6 At the time this court decided Helewa in 1985, the Division was named 

"Division of Youth and Family Services (DYFS)." 
29 A-1591-17T1

The interview between [the] defendant and [the 

Division caseworker] took place in a small office or 

"Special Needs Pod" within the Corrections Center, but 

outside of the presence of the police or the prison 

guards. [The caseworker] introduced herself as a 

[Division] caseworker and explained that she needed to 

discuss the allegations of sexual abuse with him. [The] 

[d]efendant, however, expressed reservations about 

discussing these allegations and told [the caseworker] 

that "he had talked with his two lawyers and he had 

talked to his father and he had talked to his girlfriend 

. . . and he wasn't sure if his lawyer would get mad at 

him for speaking to [her]." In response, [the 

caseworker] told him that "he should do what he 

thought was best" and explained that although she did 

not work for the prosecutor's office or the police 

department, a copy of his statement would be sent to 

the prosecutor's office. 

[The caseworker] did not pressure [the] defendant into 

talking or indicate that the interview would be for his 

benefit. However, she did tell him, "You can talk to 

me, this is part of the investigation", to which [the] 

defendant apparently responded, "I don't know whether 

my lawyer will be mad at me or not but I have nothing 

to lose so I'm going to talk to you." Although [the] 

defendant was aware at this time that he did not have to 

talk to her and that he had the right to have an attorney 

present, he was not re-advised of his Miranda rights by 

[the caseworker] prior to giving the interview. The 

interview lasted an hour and 15 minutes. Eventually, 

[the caseworker] turned [the] defendant's statement 

over to the Middlesex County Prosecutor's Office. 

[Ibid.]

Writing for the court in Helewa, Judge Michels noted that in Mathis v. 

United States, 391 U.S. 1 (1968), the United States Supreme Court suppressed 
30 A-1591-17T1

an oral statement the defendant made to an Internal Revenue Agent (IRS) while 

he was serving a state prison sentence. Helewa, 223 N.J. Super. at 45. That

case involved an IRS agent who elicited information from the defendant in 

connection with a routine civil action to collect delinquent taxes, without first 

advising him of his Miranda rights. Ibid. However, "the Government began a 

full-fledged criminal investigation eight days later and successfully prosecuted 

[the] defendant for two counts of tax fraud." Ibid. The Government argued the 

defendant's oral statements were admissible because they were solicited in 

connection with a civil enforcement action. Ibid. The Supreme Court rejected 

this argument and held:

It is true that a "routine tax investigation" may be 

initiated for the purpose of a civil action rather than 

criminal prosecution . . . But tax investigations 

frequently lead to criminal prosecutions, just as the one 

here did . . . And, as the investigating revenue agent 

was compelled to admit, there was always the 

possibility during his investigation that his work would 

end up in a criminal prosecution.

[Ibid. (quoting Mathis, 391 U.S. at 4).]

Judge Michels also cited Estelle v. Smith, 451 U.S. 454 (1981), a situation 

analogous to Mathis, where the Court held "that a court-ordered psychiatric 

examination, given without Miranda warnings, cannot be used in the penalty 

proceeding of a capital murder case to demonstrate the defendant's depravity." 
31 A-1591-17T1

Id. at 45-46 (citing Estelle, 451 U.S. at 467). Finally, Judge Michaels cited 

United States v. Mata-Abundiz, 717 F.2d 1277 (9th Cir.1983), where the Circuit 

Court relied on Mathis to suppress the statement the defendant gave to a criminal 

investigator from the Immigration and Naturalization Service while the 

defendant was incarcerated on state firearm charges. Id. at 46. Thus, following 

the constitutional principles established in this trilogy of cases, we held in 

Helewa "that Miranda applies to a custodial interview conducted by a [Division] 

caseworker . . . under the circumstances here present." Id. at 47. 

We have consistently recognized and endorsed this constitutional 

principle. In State v. Flower, 224 N.J. Super. 208 (Law Div. 1987), aff'd o.b., 

224 N.J. Super. 90 (App. Div. 1988), we upheld the suppression of a statement 

obtained from the defendant by a Division caseworker in an interview conducted 

in a county jail. There, the caseworker did not first advise the defendant of his 

rights under Miranda, despite knowing the defendant was incarcerated on the 

charge of sexually assaulting a three-and-a-half year old child. Id. at 211.

However, relying on our Supreme Court's decisions in State v. Nyhammer, 

197 N.J. 383 (2009), State v. Melvin, 65 N.J. 1 (1974), and State v. Magee, 52 

N.J. 352 (1968), the trial judge here found the Miranda warnings Detectives 

Leyman and Martinez gave defendant on April 7, 2014 remained 

constitutionally viable under these circumstances to admit defendant's
32 A-1591-17T1

inculpatory statements during Tirado's interview at the county jail. According 

to the trial judge, defendant "never lost focus of the fact that the things that he 

. . . was saying, were useable against him" and "knew he had a right to an 

attorney and he didn’t have to speak if he didn’t want to." The trial judge 

acknowledged that the facts here involve "a substantially longer period of time 

. . . than was present in the McGee case, or the Melvin case, or the Niemeyer

case." Nonetheless, he concluded:

I do find that it is significant that he remained 

incarcerated from the time that his initial interview to 

the time of the second interview. But, I find that it is 

significant because it demonstrates that the defendant 

never had an opportunity to lose focus on why he was 

there. He was incarcerated immediately after being 

interviewed, initially, where he made his general 

denials.

. . . .

[P]rior to his statement he was . . . aware that the person 

he was speaking to was an agent of the State of New 

Jersey. He understood he was dealing with a person 

who was there under color of authority of the State, 

when he was making his statements. 

[I]t was not a situation as if [an] undercover person was 

being placed into this environment in order to get him 

to speak without an understanding that what he was 

saying was an official statement on his part. 

She identified herself as a DCP&P worker. She 

indicated she was investigating the circumstances of the 
33 A-1591-17T1

same event for which he had previously been 

Mirandized. 

. . . .

[T]he Court finds . . . his Miranda rights were intact at 

the time of the DCP&P worker’s interview, that the 

passage of time did not, in and of itself, work to vitiate 

the validity of the waiver he gave at the time of his 

initial interview. 

The trial judge's reliance on the Court's holding in Magee was misplaced. 

In Magee, the police apprised the defendant of his rights under Miranda. Twoand-a-half-days later, the defendant, while in custody, voluntarily came forward 

and made inculpatory statements. 52 N.J. at 372-75. Under these circumstances, 

the defendant in Magee argued that when he made "an unsolicited invitation" to 

the police to question him further, the officers were required to repeat the 

Miranda warnings before proceeding further. Id. at 374. 

Writing for the Court, Justice Francis rejected the defendant's argument

but included the following significant caveat which we highlight here:

Once Miranda's rule has been complied with at the 

threshold of the questioning it is not necessary as a 

matter of law to repeat the warnings at each successive 

interview. . . . In this connection the important factors 

are whether the suspect understood that he did not have 

to speak, the consequences of speaking, and that he had 

the right to counsel before doing so if he wished. A 

circumstance to be considered also is the period of time 

between the warnings and the volunteered inculpatory 

admission. Here the time lapse was short, and, as we 
34 A-1591-17T1

have said, defendant was not a neophyte in court 

matters and the use of counsel.

[Id. at 374-75 (emphasis added).]

Here, the trial judge concluded that the Miranda warning defendant 

received from Bridgeton Detectives Leyman and Martinez at the time of his 

arrest on April 7, 2014 were sufficient to overcome Tirado's failure to carry out 

her obligation to apprise him of his Miranda rights when she interviewed him at 

the county jail thirty-six days later on May 16, 2014. We disagree. These facts 

are critically different from the circumstances the Court confronted in Magee. 

Here, defendant made the inculpatory statements in response to Tirado's 

questions. He did not voluntarily offer or spontaneously utter these inculpatory 

remarks to Tirado. Furthermore, the record shows this is defendant's first and 

only involvement with the criminal justice system. Finally and most 

significantly, the time gap here was thirty-six days.

As an appellate court, we are bound to 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) (citing 

State v. Elders, 192 N.J. 224, 244 (2007)). However, "'[w]hen faced with a 

trial court's admission of police-obtained statements, an appellate court should 

engage in a searching and critical review of the record to ensure protection of a 
35 A-1591-17T1

defendant's constitutional rights.'" Ibid. (quoting State v. Hreha, 217 N.J. 368,

381-82 (2014) (citation omitted)).

Under the totality of these circumstances, we conclude the record does not 

support the trial judge's finding that defendant's Miranda rights remained legally 

viable at the time Tirado interviewed him thirty-six days later. Under these 

circumstances, it is unreasonable to expect an ordinary person in defendant's 

situation to recall and meaningfully comprehend Miranda rights read to him by 

police investigators more than a month earlier. In short, the circumstances here 

materially diluted the effectiveness of the warning the police investigators 

provided defendant on April 7, 2014. State v. Dispoto, 189 N.J. 108, 124-25 

(2007).

Tirado also failed to follow the standards codified in Rule 3:17(a), which

requires that "custodial interrogations conducted in a place of detention must be 

electronically recorded when the person being interrogated is charged with . . . 

aggravated sexual assault, sexual assault, aggravated criminal sexual contact, 

[and/or] criminal sexual contact . . . [.]" Rule 3:17(b) lists the circumstances 

under which electronically recording is not required. None of the exemptions

listed in Rule 3:17(b) apply here.

Defendant also argues Tirado violated his Sixth Amendment right to 

counsel by interviewing him at the county jail without first obtaining the consent 
36 A-1591-17T1

of his attorney. We disagree. At the time Tirado interviewed defendant, she 

was not required to obtain his attorney's consent to interview him at the county 

jail.

Our Supreme Court has made clear that after an indictment, the State 

"should not initiate a conversation with defendants without the consent of 

defense counsel." State v. Sanchez, 129 N.J. 261, 277 (1992). After a defendant 

is indicted, he or she may not waive his right to counsel without the advice of 

counsel. Ibid. However, the Court has consistently declined repeated efforts to 

extend Sanchez's holding to earlier criminal proceedings. State ex rel. P.M.P., 

200 N.J. 166, 175 (2009); State v. A.G.D., 178 N.J. 56, 58 (2003); State v. 

Tucker, 137 N.J. 259, 291 (1994). 

In Sanchez, the Court explained the rationale for forbidding "prosecutors 

or their representatives" from initiating a conversation with defendants without 

the consent of defense counsel:

The return of an indictment transforms the relationship 

between the State and the defendant. By obtaining the 

indictment, the State represents that it has sufficient 

evidence to establish a prima facie case. Once the 

indictment is returned, the State is committed to 

prosecute the defendant. From that moment, if not 

before, the prosecutor and the defendant are 

adversaries. Questioning the accused can be only "for 

the purpose of buttressing . . . a prima facie case." The 

spotlight is on the accused. Under those circumstances, 

the perfunctory recitation of the right to counsel and to 
37 A-1591-17T1

remain silent may not provide that defendant with 

sufficient information to make a knowing and 

intelligent waiver. Such a recitation does not tell the 

defendant the nature of the charges, the dangers of selfrepresentation, or the steps counsel might take to 

protect the defendant's interests. Those steps include 

pretrial motions such as those to test the sufficiency of 

the indictment or to suppress illegally-seized evidence. 

They also include the negotiation, subject to the 

approval of the court, of a plea agreement. Given the 

adversarial nature of their relationship, for the State's 

representatives to communicate adequately that 

information to an indicted defendant would be difficult, 

nigh to impossible.

[129 N.J. at 276-77 (citations omitted).]

Here, Tirado's role as a Division investigator was to determine whether 

Amelia was safe; whether her parents had taken the necessary measures to 

ensure her physical safety and emotional welfare; and to investigate the veracity 

of Amelia's allegations of sexual abuse against her paternal uncle. Tirado's 

testimony at trial describing her activities and responsibilities in this case is 

consistent with the duties of Division investigators codified in the regulations 

promulgated by the Department of Children and Families, N.J.S.A. 9:3A-1 to -

3A-17.

Pursuant to N.J.A.C. 3A:10-3.1(a), a child protective investigator is 

required to interview a child who may have been abused in person and 

individually. During the investigation of a report containing any allegation, the
38 A-1591-17T1

child protective investigator shall observe each non-verbal alleged child victim. 

The child protective investigator shall use sensitivity to avoid further trauma to 

each alleged child victim. The investigator is also required to interview "the 

reporter and each other person identified in the current report or related 

information as having knowledge of the incident . . . including, but not limited 

to the alleged perpetrator." N.J.A.C. 3A:10-3.1(b) (6) and (7). 

The Court's holding in Sanchez is predicated on the notion that the 

relationship between a defendant and the prosecutor becomes adversarial only 

after the return of a grand jury indictment. We discern no legal basis to apply a 

different standard to review Tirado's interactions with defendant in this case. 

Moreover, unlike the activities of a prosecutor's investigator, the scope of a 

Division investigator's role at this stage of the case is codified in N.J.A.C. 

3A:10-3.2. We thus hold that the Court's holding in Sanchez applies with equal 

force to Tirado in her role as a Division investigator. Her decision to interview 

defendant without first obtaining his attorney's consent did not violate 

defendant's Sixth Amendment right to counsel.

VI

We disagree with the State that the admission of Tirado's testimony was 

harmless error. The State did not present any physical or forensic evidence to 

corroborate Amelia's testimony. The State's case against defendant was entirely 
39 A-1591-17T1

based on the credibility of the complaining witness and the admissions of 

defendant's inculpatory statements made to his brother and to the Division's 

investigator.

"The test for determining whether an error is harmless 'is whether there is 

a reasonable possibility that the evidence complained of might have contributed 

to the conviction.'" Sanchez, 129 N.J. at 278 (quoting Chapman v. California, 

386 U.S. 18, 23-24 (1967)). The key question here is not whether the State 

presented "sufficient evidence" for a reasonable jury to convict defendant absent 

the unlawfully obtained statements. The standard here is whether we are "'able 

to declare a belief that [the error] was harmless beyond a reasonable doubt.'"

State v. McCloskey, 90 N.J. 18, 32 (1982) (quoting Chapman, 386 U.S. at 24). 

Under the totality of these circumstances, we cannot so declare. Based on this 

decision, we are not required to, and expressly do not reach defendant's 

remaining argument attacking the validity of the sentence imposed by the trial 

court.

VII

Defendant's conviction is reversed and the matter is remanded for a new 

trial. We do not retain jurisdiction.