RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4098-16T3

STATE OF NEW JERSEY

IN THE INTEREST OF A.A.,

Juvenile-Appellant.

______________________________

Submitted April 11, 2018 – Decided

Before Judges Fuentes, Koblitz and Manahan.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Hudson 

County, FJ-09-118-17.

Joseph E. Krakora, Public Defender, attorney 

for appellant A.A. (Alyssa Aiello, Assistant 

Deputy Public Defender, of counsel and on 

the briefs).

Esther Suarez, Hudson County Prosecutor, 

attorney for respondent State of New Jersey 

(Luisa M. Florez, Assistant Prosecutor, on 

the brief).

The opinion of the court was delivered by

MANAHAN, J.A.D.

This case presents a novel issue in the context of selfincrimination. The issue is whether it is incongruous to 

require the presence of a parent prior to a waiver of Miranda1

 

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

APPROVED FOR PUBLICATION

July 31, 2018

APPELLATE DIVISION

July 31, 2018
2 A-4098-16T3

rights to safeguard a juvenile's right against selfincrimination, yet allow police eavesdropping on the parentchild communication that proves antithetical to that right.

A.A.2 appeals from an adjudication of delinquency for 

conduct which, if committed by an adult, would constitute a 

crime. A.A. was originally charged with attempted murder, 

N.J.S.A. 2C:11-3 and 2C:5-1; possession of a firearm for an 

unlawful purpose, N.J.S.A. 2C:39-4(a); unlawful possession of a 

firearm, N.J.S.A. 2C:39-5(b); and possession of a firearm by 

minors, N.J.S.A. 2C:58-6.1. Following a hearing, A.A. was 

adjudicated delinquent on two counts of second-degree aggravated 

assault as lesser-included offenses of attempted murder, 

possession of a weapon for an unlawful purpose, unlawful 

possession of weapons, and possession of firearms by minors. 

The disposition was to a two-year custodial term at the New 

Jersey Training School for Boys. 

We derive the following facts from the hearing record. At 

approximately 9:15 p.m. on July 7, 2016, two individuals 

suffered non-life-threatening gunshot wounds to the leg as the 

result of a street shooting which took place on Wilkinson Avenue 

in Jersey City. On that date and time, Jersey City Police 

 

2 We use initials to protect the identity of the juvenile and 

minors involved in these proceedings. R. 1:38-3(d).
3 A-4098-16T3

Officer Joseph Labarbera was on duty with another officer. 

While operating an unmarked vehicle, Labarbera observed three 

African American males on bicycles traveling northbound on 

Bergen Avenue. Labarbera lost sight of the cyclists after they 

made a right turn onto Wilkinson Avenue. Seconds later, 

Labarbera heard gun shots. Labarbera reported the incident over 

his police radio. The report included his observation of the 

three African American males on bicycles turning down Wilkinson 

Avenue just prior to the shooting. 

Detective Teddy Roque of the Hudson County Prosecutor's 

Office responded to the report of gunshots fired. While en

route to the scene, Roque passed two African American males 

riding tandem on a bicycle. After Rogue heard the report 

regarding African American males on bicycles involved in the 

shooting, he drove to the area of Garfield Avenue where he again

observed the two males and conducted a stop.

Labarbera responded to the location of the stop. When

Labarbera arrived, he recognized one of the individuals as A.A., 

a juvenile whom he had arrested on prior occasions for curfew 

violations. Labarbera also identified A.A. and the other 

juvenile as two of the three cyclists he observed in the 

Wilkinson Avenue location just prior to the shooting. 
4 A-4098-16T3

After they were detained, police conducted a search of both 

A.A. and the other juvenile and the area where Roque first 

observed the juveniles. Neither search resulted in anything of 

evidentiary value. A more extensive search was conducted by 

officers with K-9 units, which recovered shell casings and a 

projectile in the area where the shooting occurred.3 A.A. was 

taken into custody, transported to the juvenile detention center 

and placed in a holding cell. 

On October 27, 2016, the court held a N.J.R.E. 104(c) 

hearing on the State's motion to admit statements made by A.A. 

to his mother while being held at the juvenile detention center. 

During the hearing, Jersey City Detective Joseph Chidichimo 

testified that he contacted A.A.'s mother relative to his 

detention. Upon the mother's arrival at what Chidichimo 

described as "the Jersey City Police Department, juvenile 

building," Chidichimo advised her about the incident and A.A's 

alleged involvement. According to Chidichimo, the mother became 

very emotional and asked to speak with A.A. Chidichimo 

permitted A.A. to speak to his mother from a room opposite the 

 

3 A third suspect was eventually stopped by the police. Nothing 

of evidentiary value was found on that individual. 
5 A-4098-16T3

holding cell.4 Chidichimo stated he was located approximately 

ten-to-twelve feet away from the holding cell and overheard 

A.A.'s mother ask him if he was on Wilkinson Avenue. A.A. 

responded, "Yes, I was on Wilkinson." Chidichimo then overheard 

A.A.'s mother ask him, "Why?" to which he responded, "Because 

they jumped us last week." Chidichimo acknowledged that, 

although trained to read Miranda warnings prior to questioning a 

suspect, he did not read A.A. his warnings as he originally 

intended prior to overhearing the statement.5 

At the conclusion of the hearing, the judge held that 

A.A.'s statement was admissible. The judge reasoned that the 

statement was not the result of police interrogation and, 

therefore, Miranda was not implicated. 

The trial commenced immediately following the decision on 

the motion and took place over three days. The State's proofs 

included the testimony of Labarbera and Rogue, the statement of 

A.A. and a surveillance video of the scene. The video depicted 

three individuals riding bicycles in a single file formation. 

The third cyclist pulled what appeared to be a gun from his 

 

4 Chidichimo testified that "there are two holding cells inside 

the main room of the juvenile building."

5 A.A.'s mother testified at the hearing. She stated that she 

did not recall A.A. saying that he was on Wilkinson Avenue or 

that he was "jumped" the previous week.
6 A-4098-16T3

waist area with his left hand which was followed by flashes of 

light.6 At trial, Labarbera and Rogue provided their version of 

the events consistent with their N.J.R.E. 104 hearing testimony.

At the conclusion of the trial, the judge stated that "the 

video is one of the strongest items in evidence that satis[fies] 

me that those three individuals that were riding together . . . 

act[ed] in concert." The judge added that after careful review 

of the video he "saw [] a coordinated movement[] that [was] 

almost like a formation for a plan . . . of attack." The judge 

further held that just before the shots were fired, the cyclists 

"accelerate, they put their head down and they keep . . . the 

same formation. One behind the other in this symmetry, [w]hich 

indicated to me that this was planned precisely to be able to 

carry out what happened." Further, the judge stated that 

because the cyclists acted in concert, they acted as 

"accomplices" to one another. The judge determined that A.A. 

was one of the three cyclists based upon Labarbera's 

identification, and that the statements made by A.A. to his 

mother established a motive for the shooting. Based upon these 

findings, the judge adjudicated A.A. delinquent.

On appeal, A.A. raises the following points:

 

6 We note parenthetically that A.A.'s mother testified that A.A. 

is right-handed.
7 A-4098-16T3

POINT I

A.A.'S ADJUDICATIONS OF DELINQUENCY FOR 

COMMITTING AGGRAVATED ASSAULT CANNOT STAND 

BECAUSE THE STATE'S FAILURE TO PROVE THE 

IDENTITY OF THE ALLEGED VICTIMS REQUIRED 

ENTRY OF A JUDGMENT OF ACQUITTAL ON BOTH 

COUNTS OF ATTEMPTED MURDER. (Not Raised 

Below)

POINT II

THE TRIAL COURT ERRED IN FAILING TO GRANT 

A.A.'S MOTION FOR JUDGMENT OF ACQUITTAL AS 

TO ALL COUNTS BECAUSE THE EVIDENCE FAILED TO 

ESTABLISH A.A.'S [CULPABILITY] AS EITHER A 

PRINCIPAL OR ACCOMPLICE. ALTERNATIVELY, 

A.A.'S ADJUDICATIONS OF DELINQUENCY CANNOT 

STAND BECAUSE THE TRIAL COURT'S VERDICT OF 

GUILT WAS AGAINST THE WEIGHT OF THE 

EVIDENCE. 

POINT III

THE TRIAL COURT ERRED IN ALLOWING THE STATE 

TO INTRODUCE A.A.'S UNWARNED STATEMENTS TO 

HIS MOTHER[] BECAUSE THEY WERE OBTAINED BY 

POLICE IN VIOLATION OF A.A.'S FIFTH 

AMENDMENT RIGHTS. 

We confine our decision to the argument raised by A.A. 

relative to the admission of his statement.7

I.

The Fifth Amendment of the United States Constitution 

guarantees all persons with the privilege against selfincrimination, and applies to the states through the Fourteenth 

 

7 A.A. also raised arguments in his reply brief which we do not 

need to address. See State v. Lenihan, 219 N.J. 251, 265 

(2014).
8 A-4098-16T3

Amendment. U.S. Const. amend. V, XIV; Griffin v. California, 

380 U.S. 609, 615 (1965). This privilege against selfincrimination "is one of the most important protections of the 

criminal law." State v. Presha, 163 N.J. 304, 312 (2000). In 

New Jersey, there is a common law privilege against selfincrimination, which has been codified in statutes and rules of 

evidence. N.J.S.A. 2A:84A-19; N.J.R.E. 503; State v. Reed, 133 

N.J. 237, 250 (1993). "New Jersey's privilege against selfincrimination is so venerated and deeply rooted in this state's 

common law that it has been deemed unnecessary to include the 

privilege in our State Constitution." State v. O'Neill, 193 

N.J. 148, 176 (2007). Significantly, our Supreme Court "has 

treated 'our state privilege as though it were of constitutional 

magnitude, finding that it offers broader protection than its 

Fifth Amendment counterpart.'" State v. Wright, 444 N.J. Super. 

347, 363 (App. Div. 2016) (quoting O'Neill, 193 N.J. at 176-77).

A confession or an incriminating statement obtained during 

a custodial interrogation may not be admitted in evidence unless 

a defendant has been advised of his or her constitutional 

rights. Miranda, 384 U.S. at 492. As custodial interrogations 

without Miranda warnings create a presumption of compulsion, 

unwarned statements must be suppressed even when they are 

otherwise voluntary within the meaning of the Fifth Amendment. 
9 A-4098-16T3

See State v. Hubbard, 222 N.J. 249, 265-66 (2015) (citations 

omitted). A defendant may waive his or her privilege against 

self-incrimination; however, that defendant's waiver must be 

voluntary, knowing, and intelligent. State v. Hreha, 217 N.J. 

368, 382 (2014). The State bears the burden of proving beyond a 

reasonable doubt that a defendant's confession is not resultant 

from actions by law enforcement officers that overbore 

defendant's will. Id. at 383. The State bears a similar burden 

when a defendant challenges a statement procured by police 

action without the benefit of Miranda warnings. See State v. 

Clausell, 121 N.J. 298, 352-53 (1990).

II.

Juvenile defendants, like adults, possess the right to be 

free from self-incrimination. See N.J.S.A. 2A:4A-40; see also

In re Gault, 387 U.S. 1, 13 (1967) ("[N]either the Fourteenth 

Amendment nor the Bill of Rights is for adults alone."). 

Juveniles are entitled to Miranda warnings before any statement 

is taken in a custodial setting regardless of whether the 

delinquency proceedings have begun. Presha, 163 N.J. at 312-13. 

The standard used when determining the validity of Miranda

waivers by adults, the totality of the circumstances, applies to 

juveniles. State ex rel. A.S., 203 N.J. 131, 146 (2010). As a 
10 A-4098-16T3

practical matter, juvenile waivers receive heightened scrutiny 

because of their age, experience and level of education. 

Presha has been referenced as New Jersey's "seminal case 

addressing the admissibility of juvenile confessions." A.S., 

203 N.J. at 146. In Presha, the Court elaborated on the Miranda

procedures that should be followed when the police are 

conducting a custodial interrogation of a juvenile. 163 N.J. at 

312-13. At the forefront of those procedures is the role of a 

parent, in which the Court found a "special significance." Id.

at 314. "[I]n the context of a juvenile interrogation[,] . . . 

the parent serves as advisor to the juvenile, someone who can 

offer a measure of support in the unfamiliar setting of the 

police station." Ibid. (citing Gallegos v. Colorado, 370 U.S. 

49, 54 (1962)). Moreover, highlighting the "new significance" 

of the parent's role due to the increased prosecution of 

juveniles, the Court saliently provided:

When younger offenders are in custody, the 

parent serves as a buffer between the 

juvenile, who is entitled to certain 

protections, and the police, whose 

investigative function brings the officers 

necessarily in conflict with the juvenile's 

legal interests. Parents are in a position 

to assist juveniles in understanding their 

rights, acting intelligently in waiving 

those rights, and otherwise remaining calm 

in the face of an interrogation.

[Id. at 315.]
11 A-4098-16T3

Specifically, the Court held that the police must use their 

best efforts to locate a juvenile's parent or legal guardian 

before commencing interrogation, and that the adult's absence 

should be given added weight when balancing all factors to 

determine whether a waiver of rights and confession were 

knowing, intelligent, and voluntary in the totality of the 

circumstances. Ibid. The Court stressed in Presha that the 

absence of the adult's presence was a "highly significant 

factor" in evaluating waiver. Id. at 315. Other factors 

include "the suspect's age, education and intelligence, advice 

as to constitutional rights, length of detention, whether the 

questioning was repeated and prolonged in nature and whether 

physical punishment or mental exhaustion was involved" and prior 

experience with the criminal justice system. Presha, 163 N.J.

at 313 (quoting State v. Miller, 76 N.J. 392, 402 (1978)).

III.

The State's argument on appeal, as it was before the Family 

Part, is that A.A.'s statement was not the product of "police 

interrogation" or its functional equivalent. For the reasons 

that follow, we disagree.

We commence our discussion by noting that although the

constitutional protection afforded by our courts against selfincrimination is precise in delineated settings, the lack of 
12 A-4098-16T3

precision in this discrete setting should not compel a nuanced 

resolution. The facile path is to conclude that there was no 

police interrogation and thus, no violation of A.A.'s rights. 

The essential problem in selecting that path is adherence to a 

precept that ignores constitutional safeguards. Here, while 

A.A.'s statement was not elicited by express questioning by the 

police, the statement was the product of the actions of the 

police.

"The United States Supreme Court has made clear that 

Miranda warnings are required 'whenever a person in custody is 

subjected to either express questioning or its functional 

equivalent.'" Wright, 444 N.J. Super. at 363-64 (citing Rhode 

Island v. Innis, 446 U.S. 291, 300-01 (1980)). In Innis, the 

United States Supreme Court noted that interrogation under 

Miranda also includes:

any words or actions on the part of the 

police (other than those normally attendant 

to arrest and custody) that the police 

should know are reasonably likely to elicit 

an incriminating response from the suspect. 

The later position of this definition 

focuses primarily upon the perceptions of 

the suspect, rather than the intent of the 

police.

[446 U.S. at 301.]

This court has addressed the "functional equivalent" of 

interrogation in pre-Miranda warning cases where police conduct 
13 A-4098-16T3

was "reasonably likely to elicit an incriminating response." 

State v. Ward, 240 N.J. Super. 412, 417 (App. Div. 1990) 

(quoting Innis, 446 U.S. at 303). In State v. Brown, we cited 

to Ward and noted that "Miranda safeguards come into play 

whenever someone is subject either to express questioning 'or 

its functional equivalent.'" 282 N.J. Super. 538, 549 (App. 

Div. 1995) (quoting Innis, 446 U.S. at 300-02). 

The defendants in Ward and Brown each gave oral statements 

that were not produced by the direct questions of the police. 

The statements were made without Miranda warnings and subsequent 

to the police providing Ward and Brown with proofs obtained 

during the investigation relating to the crimes for which they 

were suspects. In both cases, this court excluded the oral 

statements in that, despite "non-police interrogation," the 

process employed to obtain the statement failed to scrupulously 

honor defendants' Miranda rights. Brown, 282 N.J. Super. at 

550-51; Ward, 240 N.J. Super. at 419.8

We are cognizant of the distinction that can be drawn 

between the police participation in the interrogation process in 

Ward and Brown and the police participation here. Chidichimo 

 

8 Although we concluded in Brown that defendant's oral statement 

was excluded, we concluded that his post-Miranda warnings and 

waiver rendered his written statement admissible. 282 N.J. 

Super. at 551.
14 A-4098-16T3

did not present proofs to A.A. that produced the statements. 

Rather, he permitted A.A.'s mother to speak to her son while he 

listened. Nonetheless, in consideration of the rights at issue, 

we reject that distinction. Any pre-Miranda warning process 

that employs a parent as surrogate in an interrogation 

reasonably likely to elicit an incriminatory statement, does not 

scrupulously honor a juvenile's rights. This is so even if the 

process employed by the police may not be intended to elicit the 

statement.

Here, A.A. was subjected to the functional equivalent of 

police interrogation. Chidichimo should have reasonably known 

of the propensity for the conversation between A.A. and his 

mother to produce an incriminating statement. This result was 

more predictive when A.A.'s mother was informed why he was 

detained. 

Concerning the "interrogation" itself, we consider any 

distinction between the police as interrogator or A.A.'s mother 

as interrogator as a distinction without a difference. In 

responding to his mother's questions in the earshot of 

Chidichimo, A.A., uninformed of his Miranda rights and 

uncounseled by his parent, was responding to the police.

Moreover, to conclude that there was no "police 

interrogation" would be in disregard of both common sense and 
15 A-4098-16T3

the safeguards for juveniles against self-incrimination first 

recognized in Gault, 387 U.S. at 13. Since Gault, courts have 

been mindful of the personal characteristics of an accused, 

including their youthfulness. A.S., 203 N.J. at 149; Presha, 

163 N.J. at 315-16 (noting "younger offenders present a special 

circumstance in the context of police interrogation."). It 

follows that reviewing courts should be similarly mindful of the 

inherent pressure upon a child to respond to the questioning of 

a parent and the corresponding risk of self-incrimination,

especially where the child has not been informed of their right 

to remain silent. 

A.S. involved a custodial interrogation of a juvenile in 

which the police placed the juvenile's mother in the role of 

their helper during the interrogation process by having the 

adoptive mother read the child her rights. 203 N.J. at 136. 

Thereafter, the police failed to correct the mother's 

misstatements about those rights. Ibid. The child ultimately 

made an incriminating statement used in evidence during the 

delinquency adjudication. Id. at 136-37. 

Holding the statement was involuntary and thus inadmissible 

due to the totality of the circumstances, Justice LaVecchia 

aptly wrote that "[o]ur purpose in establishing in Presha a 

preference for parental presence for a child facing questioning 
16 A-4098-16T3

by police was to assist the child in the exercise of his or her 

constitutional rights; it was not to provide the police with an 

assistant." Id. at 137 (emphasis added).9

Thus, since A.A. was in custody and subjected to the 

functional equivalent of police interrogation, he was entitled 

to Miranda warnings. The failure to provide the warnings to 

A.A. prior to obtaining the statements requires suppression. 

IV.

In addition to the concerns engendered by utilizing a 

parent as an assistant in the interrogation, we further note with 

disfavor the lack of privacy afforded to the parent-child 

communication. In this vein, we are informed by decisions of 

other states requiring police to provide a juvenile and a parent 

an unsolicited opportunity to confer in private. See D.M. v. 

State, 949 N.E.2d 327 (Ind. 2011); J.L. v. State, 5 N.E.3d 431, 

437 (Ind. Ct. App. 2014) ("Consultation can be meaningful only in 

 

9 Courts have held in certain circumstances that parents may 

serve as surrogates or assistants to an interrogation. However, 

in those cases Miranda warnings were given in the presence of 

the parent and the child prior to the statements. See State v. 

Q.N., 179 N.J. 165, 176-77 (2004) (after the administration of 

Miranda warnings in the presence of the mother and the juvenile, 

the mother took an "active role in directing her son to 'answer 

the officer's questions.'"); see also State v. Belliard, 415 

N.J. Super. 51, 80-81 (2010) (after the administration of 

Miranda warnings in the presence of the mother and the juvenile, 

the mother "unequivocally supported the police officer's 

questioning of her son.").
17 A-4098-16T3

the absence of police pressure. . . . Privacy is essential to a 

meaningful consultation."); Commonwealth v. Roe, 329 A.2d 286, 

289 (Pa. 1974) (suppressing an incriminating statement by a 

juvenile as not knowing or intelligent because the juvenile's 

mother was not permitted to speak to him privately and advise him 

of his constitutional rights); In re E.T.C., 449 A.2d 937, 940

(Vt. 1982) (suppressing a statement by a juvenile as "[t]here was 

no meaningful consultation by the [interested adult] with the 

juvenile as [a meaningful consultation] could only occur in the 

absence of police pressures."). Notably, Indiana has codified a 

juvenile's right to a "meaningful consultation" with a parent 

before their constitutional rights may be waived. See Ind. Code 

§ 31-32-5-1(2)(C). 

The rationale for private communication referenced in other

state's decisions is equally applicable in scenarios such as that 

presented in this matter. Suffice it to state that were there a 

similar requirement of a meaningful private conversation with a 

parent, there may have been no statements available for use by 

the State. Furthermore, the ability of a parent to engage in a 

private communication with a juvenile serves the purpose of the 
18 A-4098-16T3

parent's presence, i.e., to provide the advice and guidance 

envisioned by Presha.

10 

V.

Having determined that it was erroneous to allow the State 

to use A.A.'s statements, we next turn to whether the error 

requires a new hearing. On that score, the judge's consideration 

of and reliance upon A.A.'s statements as proof of motive 

demonstrates the statements' significant role in the hearing's 

outcome. As such, the error was "clearly capable of producing an 

unjust result[.]" R. 2:10-2; State v. Ross, 218 N.J. 130, 143 

(2014). Therefore, we reverse the adjudication of delinquency 

and remand the matter for a new hearing. 

In closing, we add that a contrary holding to the one 

reached today would be in derogation of the safeguards afforded 

under the Fifth Amendment and the broader protection afforded 

under our state law privilege. O'Neill, 193 N.J. at 176-77. In 

sum, we are satisfied that the process by which incriminating 

statements were secured from A.A. presented an unconstitutional 

intrusion upon those afforded safeguards. We are further 

 

10 Notwithstanding our reference to other jurisdictions that have 

addressed the issue of private communications, we do not suggest 

or comment on the wisdom of an amendment to the Juvenile Code. 

We leave that determination to the Legislature. Rather, in 

reaching our decision, we have again confirmed a juvenile's right 

against self-incrimination and highlighted the critical role of a 

parent in the protection of that right.
19 A-4098-16T3

satisfied that the excuse of that process as "non-police 

interrogation" would promote an impermissible practice. 

Reversed and remanded. We do not retain jurisdiction.