SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2333-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS A. VIALIZ, a/k/a/

LUIS VIALIZ, LUIS VIALEZ, 

LOUIS A. VIALIZ, PONCHO 

MIALIZ, and LUIS A. VIALEZ, 

Defendant-Appellant.

___________________________

Argued March 1, 2022 – Decided August 25, 2022

Before Judges Fisher, DeAlmeida and Smith.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 18-12-

1582.

Kevin S. Finckenauer, Assistant Deputy Public 

Defender, argued the cause for appellant (Joseph E. 

Krakora, Public Defender, attorney; Kevin S. 

Finckenauer, of counsel and on the briefs).

Carey J. Huff, Special Deputy Attorney General/Acting 

Assistant Prosecutor, argued the cause for respondent 

NOT FOR PUBLICATION WITHOUT THE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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A-2333-19

(Lori Linskey, Acting Monmouth County Prosecutor, 

attorney; Carey J. Huff, of counsel and on the brief).

PER CURIAM

Defendant Luis A. Vializ appeals from his conviction by a jury of four 

charges arising from him possessing a stolen bicycle, breaking a padlock on the 

bicycle a month later, and swinging a hammer at the bicycle's owner. He also 

appeals the nineteen-year prison sentence he received for those convictions. We

direct entry of a judgment of acquittal on the count of the indictment charging 

defendant with second-degree witness retaliation, N.J.S.A. 2C:28-5(b), reverse 

the trial court order denying his motion to suppress statements made during his 

custodial interrogation, vacate his remaining convictions, and remand for further 

proceedings.

I.

The following facts are reflected in the trial testimony. A.S. was sixtythree-years old at the times relevant to this appeal. He has the functional 

capacity of a seven-year-old due to neurological and cognitive limitations. 

Detective Michael Bonanno, a thirty-year law enforcement veteran working for 

the Monmouth County Prosecutor's Office, is a long-time friend of A.S. and acts 

as his informal caretaker. A.S. uses a bicycle Bonanno purchased for him as his 

only means of transportation. The bicycle has distinctive characteristics, 
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including a large front basket, multiple reflectors, A.S.'s rubber band collection 

on the handlebars, and a big star hanging from its frame.

On September 18, 2018, A.S. called Bonanno and told him that his bicycle 

had been taken from his home in Neptune. Bonanno did not contact the local 

police department. He instead conducted an unsuccessful search of the 

neighborhood for the bicycle with A.S. The following morning, Bonanno, who 

had taken sick leave and was on his way to a pharmacy, happened upon 

defendant riding A.S.'s bicycle, which he recognized from its distinctive 

features. He contacted local police. Before they arrived, Bonanno, who was 

operating his personal vehicle, pulled alongside the bicycle, showed his badge, 

and stopped defendant. Once police arrived, defendant told the officers he 

purchased the bicycle in Asbury Park two weeks earlier. The officers arrested 

defendant and charged him with receiving stolen property. He was later released 

and ordered to have no contact with A.S.

On October 11, 2018, A.S. was at a combination liquor store and bar in 

Neptune where he frequently went to color, write letters, and pass time in the 

evenings. His bicycle, which had been recovered from defendant, was secured 

to a post outside the store with a chain and padlock. Defendant, a frequent 

customer of the establishment, entered the store to purchase beer. He was 
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carrying a white bag containing a hammer he used when working construction. 

His presence in the store, during which he had no interaction with A.S., but may 

have been looking at him, was captured on a video recording.

After defendant left the store, the owner heard a bang and told A.S. he 

should go outside to see if someone was trying to steal his bicycle. A.S. testified 

that he went outside and saw defendant hitting his bicycle with a hammer and 

the broken padlock on the ground. According to A.S., when he told defendant 

to stop, defendant swung the hammer at him, but did not make physical contact.

A.S. returned to the store and called Bonanno to tell him about his 

interaction with defendant. Bonanno came to the store and reviewed the video 

recording. He identified defendant, who A.S. denied knowing. A.S. did not 

give a formal statement to law enforcement that evening.

Bonanno reported the incident to Neptune police and gave the officers 

defendant's address from the prior arrest. The officers went to the nearby hotel 

where defendant was staying. Defendant allowed the officers to enter his room, 

where they recovered the hammer. They arrested defendant for criminal 

mischief and brought him to the police station.

An officer thereafter interrogated defendant. The interrogation, during 

which defendant made statements used against him at trial, was recorded by a 
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video camera. While the State argues defendant waived his rights under 

Miranda v. Arizona, 384 U.S. 436 (1966), and state law, defendant argues he 

was too intoxicated to understand his rights and the alleged waiver was deficient. 

We will discuss the details of defendant's interrogation in greater detail below.

The officers released defendant after his interrogation. A.S. did not give 

a formal statement to law enforcement regarding either incident until the 

following morning. Police later charged defendant with additional offenses.

A grand jury indicted defendant, charging him with fourth-degree 

receiving stolen property, N.J.S.A. 2C:20-7(a), for the September 19, 2018 

incident; and with respect to the October 11, 2018 incident: third-degree 

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourthdegree unlawful possession of a weapon, N.J.S.A. 2C:39-5(a); third-degree 

aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); and seconddegree retaliation against a witness, N.J.S.A. 2C:28-5(b).1

Defendant moved to suppress the statements he made during his custodial 

interrogation. On July 5, 2019, the trial court issued a written decision and order 

denying the motion. The charges subsequently proceeded to trial.

1

 A count of the indictment charging defendant with fourth-degree possession 

of a prescription legend drug, N.J.S.A. 2C:35-10.5(e)(2), was dismissed before 

trial at the State's request.
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After the parties rested, defendant moved pursuant to Rule 3:18-1 for a 

judgment of acquittal on all charges. With respect to the witness retaliation 

charge, defendant argued the State produced no evidence establishing he acted 

against A.S. because of his service as a witness, an element of the offense. In 

an oral opinion, the trial court denied the motion.

The jury acquitted defendant of aggravated assault with a deadly weapon 

and convicted him of fourth-degree receiving stolen property, third-degree 

possession of a weapon for an unlawful purpose, fourth-degree unlawful 

possession of a weapon, and second-degree retaliation against a witness.

After delivery of the verdict, defendant moved for a judgment of acquittal 

or a new trial on all convictions. The trial court issued an oral opinion denying 

the motion. Regarding the witness retaliation charge, the court concluded there 

was sufficient evidence on which a reasonable jury could find that defendant 

recognized the bicycle in front of the liquor store, knew that A.S. was the owner 

of the bicycle, and retaliated against A.S. by destroying the padlock for having 

caused him to be arrested on September 19, 2018.

The trial court granted the State's motion for an extended sentence on the 

witness retaliation conviction pursuant to N.J.S.A. 2C:44-3(a). The court 

sentenced defendant to an aggregate nineteen-year term of imprisonment, with 
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the controlling terms of fifteen years for witness retaliation and a consecutive 

four-year term for possession of a weapon for an unlawful purpose.

This appeal followed. Defendant makes the following arguments.

POINT I

MR. VIALIZ'S CONVICTION FOR SECONDDEGREE WITNESS RETALIATION WITH FORCE 

MUST BE VACATED AND DISMISSED BECAUSE 

THE ALLEGED VICTIM WAS NEVER A WITNESS 

AGAINST MR. VIALIZ WITHIN THE MEANING OF 

THE STATUTE. ALTERNATIVELY, THE 

CONVICTION MUST BE REVERSED AND 

REMANDED FOR A NEW TRIAL DUE TO 

NUMEROUS ERRORS IN THE TRIAL COURT'S 

INSTRUCTIONS. (Partially raised below)

A. Because A.S. Was Never a Witness Against Mr. 

Vializ Prior to this Trial, Mr. Vializ Cannot Have Been 

Convicted of Witness Retaliation Against A.S. (Not 

Raised Below)

B. The Trial Court Erred in Instructing the Jury that 

Force Against Property was Sufficient for a SecondDegree Conviction for Witness Retaliation.

C. It Was Reversible Error for the Trial Court to 

Instruct the Jury that Possession of a Weapon for an 

Unlawful Purpose Qualified as the Underlying Offense 

for Witness Retaliation.

POINT II

MR. VIALIZ'S MIRANDA WAIVER WAS NOT

KNOWING, INTELLIGENT AND VOLUNTARY 

BECAUSE HE WAS SEVERELY INEBRIATED AND 
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FAILED TO EVINCE UNDERSTANDING OF THE 

OFFICER'S INSTRUCTIONS OR THE 

CONSEQUENCES OF HIS ACTIONS.

POINT III

NUMEROUS SENTENCING ERRORS RESULTED 

IN A SEVERELY EXCESSIVE SENTENCE. THE 

TRIAL COURT MISINTERPRETED THE WITNESS 

RETALIATION STATUTE, BELIEVING THE 

RETALIATION SENTENCE MUST BE 

CONSECUTIVE TO THE POSSESSION FOR AN 

UNLAWFUL PURPOSE SENTENCE WHEN IN 

FACT MERGER OF THOSE OFFENSES WAS 

REQUIRED. ADDITIONALLY, THE TRIAL 

COURT ABUSED ITS DISCRETION IN IMPOSING 

A FIFTEEN-YEAR TERM FOR WITNESS 

RETALIATION.

A. Based on a Misunderstanding of N.J.S.A. 2C:28-

5(e), the Trial Court Made the Possession of a Weapon 

for an Unlawful Purpose Sentence Consecutive to the 

Sentence for Witness Retaliation.

B. The Conviction for Possession of a Weapon for 

an Unlawful Purpose Should Have Merged with the 

Witness Retaliation Sentence to Which It Related, or, 

at the Very Least, Have Been Made Concurrent to the 

Witness Retaliation Sentence.

C. The Trial Court Abused its Discretion in 

Imposing a Fifteen-Year Sentence for Count Six.

D. Mr. Vializ is Entitled to an Additional Day of Jail 

Credit for the Time He Spent at the Police Station 

Following his First Arrest After the October 11, 2018 

Incident.
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II.

We begin with defendant's argument that the trial court erred when it 

denied his motion for a judgment of acquittal on the witness retaliation charge.

On a motion for judgment of acquittal, the governing 

test is: whether the evidence viewed in its entirety, and 

giving the State the benefit of all of its favorable 

testimony and all of the favorable inferences which can 

reasonably be drawn therefrom, is such that a jury could 

properly find beyond a reasonable doubt that the 

defendant was guilty of the crime charged.

[State v. D.A., 191 N.J. 158, 163 (2007).]

The propriety of the trial court's denial of defendant's motion for a 

judgment of acquittal depends on the meaning of N.J.S.A. 2C:28-5(b), which 

provides:

Retaliation against witness or informant. A person 

commits an offense if he harms another by an unlawful 

act with purpose to retaliate for or on account of the 

service of another as a witness or informant. The 

offense is a crime of the second degree if the actor

employs force or threat of force. Otherwise it is a crime 

of the third degree.

[N.J.S.A. 2C:28-5(b).]

Defendant argues that A.S. never provided "service . . . as a witness" prior to

October 11, 2018. Thus, he contends, the acts alleged in the indictment to have 
10 A-2333-19

taken place on that day cannot constitute retaliation against a witness under 

N.J.S.A. 2C:28-5(b). We agree.

Our obligation in ascertaining a statute's reach is to "discern and 

effectuate" the legislative intent. Murray v. Plainfield Rescue Squad, 210 N.J. 

581, 592 (2012). The "best indicator of that intent is the statutory language," 

which must be given its "ordinary meaning and significance." DiProspero v. 

Penn, 183 N.J. 477, 492 (2005). Criminal statutes are to be strictly construed 

and reasonable ambiguities must be "decided in favor of anyone subjected to a 

criminal statute." D.A., 191 N.J. at 164; see also State v. Alexander, 136 N.J. 

563, 573 (1994) (holding that ambiguity in a criminal statute "cannot inure to 

the benefit of the State").

Neither N.J.S.A. 2C:28-5(b) nor N.J.S.A. 2C:27-1, which contains 

definitions for chapters 27 through 30 of Title 2C, defines "service of another as 

a witness." Section (a) of N.J.S.A. 2C:28-5, however, provides insight into the 

legislature's intent when it enacted N.J.S.A. 2C:28-5(b).2 That portion of the 

statute provides, in relevant part:

Tampering. A person commits an offense if, believing 

that an official proceeding or investigation is pending 

or about to be instituted or has been instituted, he 

2

 N.J.S.A. 2C:28-5(a) and (b) were enacted simultaneously. See L. 1978, c. 95. 

Subsequent amendments to the provisions are not material to our analysis.
11 A-2333-19

knowingly engages in conduct which a reasonable 

person would believe would cause a witness or 

informant to:

(1) Testify or inform falsely;

(2) Withhold any testimony, information, document 

or thing;

(3) Elude legal process summoning him to testify or 

supply evidence;

(4) Absent himself from any proceeding or 

investigation to which he has been legally summoned; 

or

(5) Otherwise obstruct, delay, prevent or impede an 

official proceeding or investigation.

This statute identifies what the legislature expects a witness to do. A witness's 

service relates to a pending or imminent official proceeding or investigation and 

includes testifying, informing, providing information, documents and things, 

complying with legal process, and appearing when summoned.

As of October 11, 2018, A.S. had not performed any of the functions of a 

witness identified in N.J.S.A. 2C:28-5(a), or which one would commonly 

associate with service as a witness. He had not reported the theft of his bicycle 

to the police. He did not testify at a hearing, participate in an investigation, or 

provide information, documents, or other evidence to law enforcement officers. 
12 A-2333-19

He was not subjected to legal process nor summoned to appear with respect to 

the then-pending charge against defendant.

While A.S. reported the theft of his bicycle to Bonanno, no reasonable 

jury could find that this constituted service as a witness. Bonanno was A.S.'s 

friend and informal guardian. Although he was employed by the prosecutor's 

office, he did not receive information from A.S. in his official capacity. In 

response to A.S.'s report, Bonanno did not contact local police, but undertook a 

search for the bicycle with A.S. on his personal time. It was not until the 

following day, when Bonanno was off duty and on a personal errand, that he 

spotted defendant on A.S.'s bicycle and called police. A.S. took no part in the 

subsequent investigation resulting in defendant's arrest on September 19, 2018.

A.S. was identified as the victim of the theft at defendant's pretrial 

detention hearing. This fact alone is insufficient to support a finding that A.S. 

served as a witness within the meaning of N.J.S.A. 2C:28-5(b). Defendant was 

aware it was Bonanno who spotted him on A.S.'s bicycle and contacted local 

police. The complaint issued by police charging defendant with receiving stolen 

property was based only on Bonanno's statements and not those of A.S.

While the evidence arguably may establish that defendant believed A.S. 

had reported the theft to police, his subjective belief that A.S. had served as a 
13 A-2333-19

witness is insufficient to satisfy the statute. In the model jury charge for witness 

retaliation, subjective intent is listed as a separate element from the victim's 

status as a witness. Model Jury Charges (Criminal), "Retaliation Against 

Witness or Informant (N.J.S.A. 2C:28-5)" (rev. May 4, 2009). The charge 

instructs the jury that the third element of the offense is "defendant's purpose in 

committing the unlawful act was to retaliate against" the witness. Ibid. The 

instructions continue, "The fourth element the State must prove beyond a 

reasonable doubt is that the retaliation was for or on account of the service of 

another as [a witness] [an informant]. The State alleges that the prior action for 

which it claims defendant was retaliating was ____________." Ibid. (alterations 

in original). The victim's prior service as a witness is an objective fact and 

element of the offense that must be proven beyond a reasonable doubt.

This interpretation of N.J.S.A. 2C:28-5(b) comports with the Supreme 

Court's interpretation of N.J.S.A. 2C:20-7(a), the receiving stolen property 

statute. A defendant cannot be guilty of receiving stolen property unless the 

defendant has actually received stolen property. State v. Hodde, 181 N.J. 375, 

383 (2004). A defendant's subjective belief that the property he is receiving is 

or may be stolen is a distinct element of the offense. Ibid. The Court explained, 

[a]n interpretation that requires the State to prove that 

the property actually is stolen also comports with 
14 A-2333-19

common sense. If a person on the street or an attorney 

in a law office heard that a suspect is accused of 

receiving stolen goods, he or she would intuitively 

surmise that the good were indeed stolen. To hold 

otherwise would breed cynicism and disdain for the 

law, while reinforcing the incorrect perception that 

jurisprudence is bottomed on casuistry and craft.

[Ibid.]

The same logic applies here. Defendant cannot be convicted of witness 

retaliation against someone who has not served as a witness. Because A.S. did 

not serve as a witness in the events that resulted in defendant's arrest for 

receiving stolen property, it was error for the trial court to deny defendant's 

motion for a judgment of acquittal on that count of the indictment. 3

III.

We turn to defendant's custodial interrogation. "An appellate court 

reviewing a motion to suppress evidence in a criminal case must uphold the 

factual findings underlying the trial court's decision, provided that those 

findings are 'supported by sufficient credible evidence in the record.'" State v. 

3

 Defendant was not charged with witness tampering, N.J.S.A. 2C:28-5(a). We 

do not, therefore, opine on whether a jury might reasonably have found 

defendant's acts on October 11, 2018 were intended to intimidate A.S. into not 

testifying at the trial of the receiving stolen property charge. Nor do we address 

defendant's argument that because the jury acquitted him of aggravated assault 

with a deadly weapon, the State failed to prove the "force or threat of force" 

element of second-degree witness retaliation. N.J.S.A. 2C:28-5(b).
15 A-2333-19

Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 

(2016)). Findings of fact are overturned "only if they are so clearly mistaken 

'that the interests of justice demand intervention and correction.'" State v. 

Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 

(1964)). However, we owe no deference to conclusions of law made by the trial 

court, which are reviewed de novo. Boone, 232 N.J. at 426.

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

Amendment to the United States Constitution and this state's common law, now 

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

State v. S.S., 229 N.J. 360, 381-82 (2017) (quoting State v. Nyhammer, 197 N.J. 

383, 399 (2009)). "Our law maintains 'an unyielding commitment to ensure the 

proper admissibility of confessions.'" State v. Sims, 250 N.J. 189, 211 (2022) 

(quoting State v. Vincenty, 237 N.J. 122, 132 (2019)).

"[A] knowing, intelligent, and voluntary waiver" of Miranda rights "is 

determined by the totality of the circumstances surrounding the custodial 

interrogation based on the fact-based assessments of the trial court." State v. 

A.M., 237 N.J. 384, 398 (2019); see also State v. Presha, 163 N.J. 304, 313 

(2000). When making this analysis, courts consider the defendant's age, 

education, and intelligence, whether he or she was advised of his constitutional 
16 A-2333-19

rights, the length of the detention, whether the interrogation was repeated and 

prolonged, and whether physical punishment or mental exhaustion were 

involved. Nyhammer, 197 N.J. at 402. Because New Jersey provides greater 

protections than afforded under federal law, Vincenty, 237 N.J. at 132, "our 

review of police-obtained statements is 'searching and critical' to ensure 

protection of a defendant's constitutional rights." State v. Burney, 471 N.J. 

Super. 297, 314 (App. Div. 2022)(quoting State v. Patton, 362 N.J. Super. 16, 

43 (App. Div. 2003)). "[F]or the statement to be admissible, the court must find 

it was voluntary beyond a reasonable doubt." Id. at 315.

Having carefully reviewed the record, including the video recording of 

defendant's interrogation, we conclude the trial court's finding that defendant 

knowingly, intelligently, and voluntarily waived his Miranda rights beyond a 

reasonable doubt is not supported by sufficient credible evidence. It is apparent 

from defendant's demeanor, sometimes non-sensical answers to the officer's 

questions, angry rants, and admission that he was drunk, that reasonable doubt 

exists as to whether defendant understood and waived his Miranda rights.

The following lengthy excerpt from the transcript of the officer 

purportedly informing defendant of his Miranda rights and obtaining his 
17 A-2333-19

knowing, intelligent, and voluntary waiver of those rights is illuminating. We 

have not made alterations to several passages that are grammatically incorrect:

[OFFICER]: Hold on one second, let me see that, 

I'll read it to you.

[DEFENDANT]: glasses, I need.

[OFFICER]: I'll read it to you, and then if you 

don't understand any part, I know you don't have your 

glasses, but I'll read it to you. So obviously, I'm Officer 

Lay. I think I introduced myself before if you didn't 

have it. Can you just state your name for me?

[DEFENDANT]: Oh ah Luis, Luis, Luis A. Viliaz. Ah, 

Luis ah l-u-i-s-v-i-a and ah v-i-a-l-i-z.

[OFFICER]: Sure. Okay. Alright so this is the 

Neptune Township Police Department Miranda 

warning and waiver form.

[DEFENDANT]: What?

[OFFICER]: It's called a Miranda warning and 

wavier form. So what this is, is basically. I'll . . .

[DEFENDANT]: I'm supposed to pour to you, ah . . . 

[OFFICER]: Well we're going to figure it out here 

okay. I want to speak to you about something a 

referenced event okay and for me to speak to you we 

have to go through this form and you have to agree to 

speak to me.

[DEFENDANT]: Okay.
18 A-2333-19

[OFFICER]: Okay so I'll go through the form like 

I said, if you have any questions at any point in time 

please stop me and I'll do my very best to answer them 

for you. Okay. Number one, it says you have the right 

to remain silent and refuse to answer any questions. 

You understand that?

[DEFENDANT]: Um hum.

[OFFICER]: Okay. If you do understand that I 

just need a yes or no. Do you understand sir?

[DEFENDANT]: Um hum.

[OFFICER]: Okay. Could I have you [just]4

initial here that you understand that?

[OFFICER]: This is number two. Anything you 

say may be used [against you] in a court of law.

[DEFENDANT]: Yes.

[OFFICER]: Do you understand that? Okay. 

Could I have you initial here on that second one that 

you understand that.

[OFFICER]: Okay. Number three. It says you 

have the right to consult with an attorney at any time 

and have him present before and during the 

questioning. Do you understand that? Just yes, or no. 

Okay could I have your initial there that you understand 

that?

[DEFENDANT]: I need a ride to go home.

4

 We have added in brackets words that are clearly intelligible on the video 

recording but not included in the written transcript provided to the court.
19 A-2333-19

[OFFICER]: Well yeah like, like I said 

[obviously] we have to figure some stuff out and if we 

can figure it out then I believe you will be going home 

at some point.

[DEFENDANT]: I'm, I'm dru . . . I'm drunk. I've been 

drinking. He bang on my door. I open the door. You 

think excuse me 'cuse me 'cuse me officer, . . . You 

think . . . would open my fuckin door for my house; of

course I would have opened my fuckin door man. I 

swear to God man.

[OFFICER]: Hold on. Let's get through this. But, 

but, but you're going way ahead of me okay.

[DEFENDANT]: But, but, wait my would think about 

it. You think I do the crime so you open my fuckin door 

to my house? I don't give a fuckin shit man.

[OFFICER]: Hold on relax, relax, relax okay. 

Number four. If you cannot afford an attorney one will 

be provided if so desire prior to any questioning? Do 

you understand that?

[DEFENDANT]: Whaaaa?

[OFFICER]: That means that if you wanted an 

attorney and you couldn't afford one they would pay for 

one. Do you understand that?

[DEFENDANT]: [Yawning and coughing] Um hum.

[OFFICER]: Just I need a yea or no. Yes. Okay 

can I have you initial there that you understand that. I 

know this just a formality.

[DEFENDANT]: You don't know. No, no. I know 

everything where it come from. That fuckin that white 
20 A-2333-19

boy sucker is working there. I be hit up for money. I 

don't even know I I I workin' you know I don’t need no 

money what I mean. Get a fuckin job. Sucker white 

boy sucker man. That's the greatest fuckin joke; he's a 

fucking old man.

[OFFICER]: Hold on you can't say that though.

[DEFENDANT]: Haa, hey New York that's how fire 

everything, go for the head.

[OFFICER]: Relax for a second okay?

[DEFENDANT]: Um hm you're a moron fucking old 

man. Fucking on drugs!

[OFFICER]: Sir! Let me, let's get through this 

okay I want to try and get you out of here if I can.

[DEFENDANT]: Okay.

[OFFICER]: It says number five, the decision to 

waive these rights is not final and you may withdraw 

your waiver whenever you wish either before or during 

questioning. Do you understand that?

[DEFENDANT]: Um hum.

[OFFICER]: Yes or no? Okay. You're going to 

initial here if you understand that.

[DEFENDANT]: Um hum.

[OFFICER]: Okay. The last part here it says, I 

acknowledge I have been advised of each constitutional 

right as initialed above and that I understand these 

rights. So by signing here you're stating here that I read 
21 A-2333-19

you those five things and you understand all of them 

and that's correct?

[DEFENDANT]: Um, what do you mean?

[OFFICER]: It means that we went over all of 

these and you understand them.

[DEFENDANT]: Yeah.

[OFFICER]: So you do understand these things 

that we went over?

[DEFENDANT]: Yeah, what's gets me though. 

Everything usually gets you know . . .

[OFFICER]: It could it could be used in anyway. 

Like it says, it's to try to make sense of some things. 

Okay.

[DEFENDANT]: That's what happened. You know I 

don't. I want to tell you something . . . something.

[OFFICER]: Alright, let's just get through this last 

part.

[DEFENDANT]: No more for me. No more. Nice.

[OFFICER]: Let's just get to this part okay. It says 

having these rights in mind I wish to waive or give up 

these rights make a knowing and voluntary statement 

and answer questions. So if you want to speak with me 

if you want to try and you know give me your side and 

make sense of everything tonight. Then you would 

have to sign here and you want to speak to me?

[DEFENDANT]: I'm okay.
22 A-2333-19

[OFFICER]: You want to speak to me correct?

[DEFENDANT]: I speak to you right now.

[OFFICER]: That's what I'm saying I was trying 

to reiterate what this says. So you understand after 

everything we went over that . . .

[DEFENDANT]: Yeah, yeah, I got, I got a father in 

. . . Puerto Rico.

[OFFICER]: Oh in law enforcement. Puerto 

Rico?

[DEFENDANT]: He served. Carry gun, in my [army a]

Sergeant, I got father in police. You know and I know 

I made a mistake but ah I stop all that crazy shit because 

I don't need to live in. I get locked up for before 

burglary. I sell drug before thank God we get away 

[from that shit] before I see, because God give me 

chance to live here now. I don't mean to sell drugs for 

better way of work but it is good money.

[OFFICER]: That's good then.

[DEFENDANT]: Yeah [no] Yeah [that's what] I do. I 

sell I woke up people. I like my fairytale as hard 

working from drugs you know that you know. Do that 

crazy thing because everything you do is like good or 

bad.

[OFFICER]: Comes back to you right?

[DEFENDANT]: Yeah, yeah. God saved my life.

[OFFICER]: Let's. I want to get you out of here 

before it's too late. And . . . finally get you a ride home 

later on okay. So obviously like I told you I'm 
23 A-2333-19

following up on an incident at Jumping Brooks Liquors 

that's in Neptune over there.

At that point, the interrogation began. During the questioning detailed 

above, defendant initialed and signed the Miranda rights waiver form.

For several reasons, the record does not support a finding beyond a 

reasonable doubt that defendant made a knowing, intelligent, and voluntary 

waiver of his Miranda rights. First, when defendant told the officer that he was 

drunk, it was incumbent on the officer to ask follow-up questions regarding 

defendant's alcohol consumption and mental state to ascertain whether he had 

the capacity to understand and waive his Miranda rights. Here, defendant stated 

that he was drunk immediately after the officer secured his initials with respect 

to item number three of the Miranda form. Rather than inquiring as to 

defendant's level of intoxication, the officer said "Hold on. Let's get through 

this . . . " and proceeded to the next item on the form. He made no further inquiry 

with respect to defendant's alcohol consumption or state of intoxication.

Second, defendant gave non-sensical answers to several of the officer's 

questions. The answers alone are concerning. When coupled with defendant's 

admission to being drunk, they raise considerable doubt about his ability to make 

a knowing, intelligent, and voluntary waiver of his Miranda rights.
24 A-2333-19

Third, the officer failed to elicit a clear verbal response from defendant to 

the several questions regarding whether he understood the rights the officer had

read to him. Even though the officer repeatedly stated that he needed a "yes or 

no" response from defendant to his questions, he accepted "Um hum," other 

equivocal responses, or no verbal response before having defendant initial the 

waiver form.

Fourth, and critically, defendant never expressed an unequivocal waiver 

of his rights. The officer referred to obtaining the waiver as "just get[ting] 

through this last part," to which defendant responded, "No more for me. No 

more. Nice." When the officer followed-up with "[t]hen you would have to sign 

here and you want to speak to me?," defendant replied, "I'm okay." Apparently 

aware that these responses were ambiguous, the officer asked "You want to 

speak to me correct?" Defendant replied, "I speak to you right now." While this 

statement might, in different circumstances, constitute an unequivocal waiver of 

Miranda rights, the officer again followed-up with, "[t]hat's what I'm saying I 

was trying to reiterate what this says. So you understand after everything we 

went over that . . . ." Defendant interrupted the officer with a non-sensical 

description of his father's service as law enforcement officer in Puerto Rico, his 
25 A-2333-19

own history selling drugs, and what he described as his "fairytale as hard 

working from drugs . . . ."

Finally, the officer described defendant's understanding and waiver of his 

Miranda rights as a "formality." Recently, in State v. O.D.A.-C., 250 N.J. 408 

(2022), our Supreme Court held that an officer's repeated minimization of the 

significance of Miranda warnings, including by calling them a "formality," 

created reasonable doubt that a defendant's waiver was knowing, intelligent, and 

voluntary. As the Court explained,

[r]eferring to Miranda warnings as a "formality," for 

example, downplays their significance. Doody v. 

Ryan, 649 F.3d 986, 1002-03 (9th Cir. 2011) (en banc). 

The label suggests that Miranda warnings are little 

more than a box on a bureaucratic checklist waiting to 

be checked off – and that is simply wrong. Miranda

warnings are a constitutional requirement meant to 

protect a person's rights under the Fifth Amendment; 

they are not a formality. To describe them in that way 

minimizes their import and undermines "the very 

purpose of Miranda." Ross v. State, 45 So. 3d 403, 428-

30 (Fla. 2010) (criticizing a reference to the warnings 

as "just a matter of procedure").

[Id. at 422.]

While the Court declined to adopt a bright-line rule requiring suppression any 

time an officer makes an inappropriate comment undermining the import of 
26 A-2333-19

Miranda warnings, it held that improper police statements can be considered 

under the totality-of-the-circumstances test. Id. at 423.

These factors, when considered in their totality, create a reasonable doubt 

as to whether defendant made a knowing, voluntary, and intelligent waiver of 

his Miranda rights. It was error for the trial court to conclude otherwise. Thus, 

the statements made by defendant during his custodial interrogation should have 

been suppressed. Defendant's convictions, therefore, are vacated.

In light of our decision vacating defendant's convictions, we need not 

address his arguments with respect to sentencing.

Defendant's convictions are vacated and the matter is remanded for entry 

of a judgment of acquittal on the count of the indictment alleging second-degree 

witness retaliation and further proceedings consistent with this opinion on the 

remaining counts of the indictment. We do not retain jurisdiction.