RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0906-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.A.P.,

1

Defendant-Appellant.

Submitted May 6, 2019 – Decided May 23, 2019

Before Judges Messano and Rose.

On appeal from Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 16-02-0236.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Jaime Beth Herrera, Assistant Deputy Public 

Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Alanna M. Jereb, Assistant Prosecutor, on 

the brief).

 

1 We use initials to protect the privacy of the victim.

NOT FOR PUBLICATION WITHOUT THE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.
2

A-0906-17T3

PER CURIAM

A Hudson County grand jury indicted defendant M.A.P., charging him 

with sexually assaulting and endangering the welfare of his paramour's elevenyear-old daughter, X.M. Following a hearing pursuant to N.J.R.E. 104(c), the 

judge granted the State's motion to admit defendant's statement to law 

enforcement authorities. Thereafter, defendant pled guilty to first-degree 

aggravated sexual assault, N.J.S.A. 2C:14-2(a), and the remaining five counts 

were dismissed pursuant to a negotiated plea agreement.

Defendant appeals, raising the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN FAILING TO 

SUPPRESS [DEFENDANT]'S STATEMENT 

BECAUSE THE STATE DID NOT MEET ITS 

HEAVY BURDEN OF PROVING BEYOND A 

REASONABLE DOUBT THAT [DEFENDANT]'S 

WAIVER OF RIGHTS WAS KNOWING, 

INTELLIGENT AND VOLUNTARY.

[2]

A. The Introductory Remarks Made By The Detective 

during the Interrogation Were Misleading And 

 

2 Defendant's plea agreement expressly reserved his right to appeal the 

admissibility of his confession. See R. 3:9-3(f); see also State v. Knight, 183

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

prohibited from raising, on appeal, the contention that the State violated his 

constitutional rights prior to the plea.").
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A-0906-17T3

Operated To Neutralize The Miranda

[3] Warnings That 

Were Read To Defendant Immediately Thereafter. 

(Not Raised Below)

B. The Detective's Failure to Ascertain [Defendant]'s 

Level of Education and Intelligence Resulted in her 

Administering the Miranda Rights Without Ensuring he 

Understood Them, Thereby Depriving him of the 

Opportunity to Make a Knowing, Intelligent Waiver of 

his Rights.

C. The State Failed to Establish that the Detective was 

Sufficiently Proficient in Spanish to Both Explain the 

Critically Important Aspects of Miranda, and to 

Ascertain Whether [Defendant] Understood the Rights 

he was Waiving or the Consequences of Doing so, and 

the State Failed to Establish that the Transcript of the 

Interrogation was an Accurate and True Translation 

produced by a Certified Translator.

(Not Raised Below)

D. The State Failed to Establish a Knowing and 

Intelligent Waiver when [the Detective] was 

Translating Critically Important Aspects of Miranda to 

[Defendant] but is not an Unbiased Interpreter.

(Not Raised Below)

POINT II

[DEFENDANT]'S GUILTY PLEA MUST BE 

VACATED BECAUSE THE TRIAL COURT 

PROVIDED MISLEADING INFORMATION AND 

EFFECTIVELY DENIED HIM HIS RIGHT TO 

SPEAK WITH AN IMMIGRATION ATTORNEY 

 

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

A-0906-17T3

ABOUT THE CONSEQUENCES OF PLEADING 

GUILTY.

(Not Raised Below)[4]

We reject these arguments and affirm.

I.

A.

We first consider defendant's overlapping arguments that his Miranda

waiver was not made knowingly, intelligently, and voluntarily. In doing so, we 

derive the pertinent facts from the record developed at the motion hearing. 

Detective Paola Bolivar of the Hudson County Prosecutor's Office (HCPO) was 

the sole witness to testify at the hearing. The State also moved into evidence, 

without objection, the waiver form, video-recorded statement, and a transcript 

of defendant's statement, which had been translated from Spanish to English.

After X.M. and her mother reported defendant's sexual misconduct to the 

HCPO's Special Victim's Unit (SVU), Bolivar scheduled an interview with 

defendant. When he voluntarily responded to the SVU, defendant was not under 

arrest.

 

4 Defendant's point heading states this argument was "Partially Raised Below." 

As defendant's merit brief notes, however, his plea counsel raised issues other 

than immigration in support of his motion to vacate his guilty plea. Those issues 

are not renewed on appeal.
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A-0906-17T3

Because defendant indicated he did not speak English, Bolivar conducted 

the interview in Spanish. Defendant understood and spoke Spanish, but was 

unable to read the language. Bolivar testified that defendant had no problem 

understanding her questions. Defendant immediately acknowledged he was 

aware of X.M.'s allegations. During the course of responding to preliminary 

questions about his pedigree, defendant could not recall his social security 

number, but produced his card.

Bolivar administered Miranda warnings to defendant by reading each 

warning aloud in Spanish from a preprinted waiver of rights form. Defendant 

verbally indicated he understood his rights, initialed each right and signed the 

form. Defendant admitted he "touched" X.M.'s breast and "private part" with 

his mouth "like adults, . . . [b]ut that was the only time in [his] life." The entire 

interview was conducted in approximately twenty minutes; defendant was 

arrested immediately thereafter.

At the conclusion of the hearing, the judge rendered a short oral decision, 

granting the State's motion. The judge reasoned:

[Defendant] was not in custody when he first arrived [at 

the SVU], number one; he was advised of his Miranda

rights; he was advised of his right to remain silent, his 

right to have an attorney. He was given the safeguards 

that the Constitution requires.
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A-0906-17T3

Although he said that he could not remember --

or, [had a] short memory regarding his [s]ocial 

[s]ecurity . . . number . . . he had the wherewithal and 

the understanding to provide the card. So, the [c]ourt 

finds that, although he may not have been able to 

remember the number, which is not unusual, he did 

understand.

The [c]ourt finds that when he responded to the 

interview, he acknowledged his rights, said he 

understood his rights, signed the rights and waiver 

statement. And although he could not read or write in 

English or in Spanish, he did initial the various part[s] 

of the waiver statement indicating that he understood. 

The [video] recording of the waiver demonstrates that 

. . . defendant's statement was completely knowing and 

voluntary.

Accordingly, the judge concluded defendant "was not coerced or forced to make 

a statement and that he voluntarily, knowingly, and intelligently waived his right 

to remain silent."

B.

We commence our analysis with well-established legal principles, 

recognizing we review the trial court's evidential ruling under an abuse of 

discretion standard. See Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008); see also

State v. Gore, 205 N.J. 363, 382 (2011). After a testimonial hearing, we "defer 

to the trial court's factual findings because the trial court has the 'opportunity to 
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A-0906-17T3

hear and see the witnesses and to have the "feel" of the case, which a reviewing 

court cannot enjoy.'" State v. S.S., 229 N.J. 360, 374 (2017) (citation omitted).

That deference extends to a trial court's determinations based on the 

review of a video, like here, because of the court's "experience and expertise in 

fulfilling the role of factfinder." Id. at 380. We therefore "should not disturb a 

trial court's factual findings unless those findings are 'so clearly mistaken that 

the interests of justice demand intervention and correction.'" Id. at 374 (citation 

omitted). The trial court's interpretation of the law and "the consequences that 

flow from established facts are not entitled to any special deference." State v. 

Gamble, 218 N.J. 412, 425 (2014).

Although a defendant's statement is not excluded as hearsay in a criminal 

trial against him, "the admissibility of a defendant's statement which is offered 

against the defendant is subject to Rule 104(c)." N.J.R.E. 803(b). "It is the State 

that must prove, beyond a reasonable doubt, that a defendant's statement was 

voluntary and, if made while in custody, that the defendant knowingly, 

voluntarily, and intelligently waived the rights afforded him under Miranda." 

Gore, 205 N.J. at 382. In determining whether a Miranda waiver was made 

knowingly, intelligently, and voluntarily, courts consider factors such as "the 

suspect's age, education and intelligence, advice as to constitutional rights, 
8

A-0906-17T3

length of detention, whether the questioning was repeated and prolonged in 

nature and whether physical punishment or mental exhaustion was involved." 

State v. Presha, 163 N.J. 304, 313 (2000) (citation omitted); see also State v. 

Nyhammer, 197 N.J. 383, 402 (2009).

As he did before the trial judge, defendant now claims Bolivar failed to 

ascertain his level of education and intelligence prior to questioning him. He 

emphasizes his illiteracy, inability to speak English, poor memory, and lack of 

familiarity with the criminal justice system should have prompted Bolivar to 

ensure he understood his rights and the consequences of a Miranda waiver. 

Defendant's arguments are belied by the record:

[PROSECUTOR]: When you read [defendant] the 

Miranda rights from this preprinted form, did he do or 

say anything that indicated whether or not he 

understood what was happening, what you were reading 

to him?

[BOLIVAR]: After I read each of the Miranda rights, 

. . . he acknowledged that he understood each of those 

rights.

. . . .

[PROSECUTOR] And was he asked to sign anything 

to physically indicate that he understood these rights?

. . . .
9

A-0906-17T3

[BOLIVAR] . . . after I read each of the rights and I 

asked him, if having the rights in mind, he was willing 

to speak to me, and he acknowledged that he was, I 

asked him to place . . . his initials next to each of the 

rights.

On cross-examination, Bolivar clarified, "He just said he didn't know how to 

read, but he understood everything that I was saying. . . . [When] I read [the 

form] to him, . . . he said that he understood what I was reading to him."

Nonetheless, for the first time on appeal, defendant attacks Bolivar's bias 

as the investigating officer and as the "interpreter," and claims the State failed 

to establish her proficiency in Spanish.5 Recently, our Supreme Court addressed 

the adequacy of an English to Spanish translation by a prosecutor's office 

detective where the defendant was more comfortable speaking in Spanish. State 

v. A.M. ___ N.J. ___, ___ (2019) (slip op. at 3). Like the present case, the 

defendant in A.M. was accused of sexually abusing a child relative. Ibid.

Prior to the interview in A.M., the detective administered Miranda rights 

using a Spanish-language form prepared by the prosecutor's office, "pausing 

after reading each one to ask [the] defendant in Spanish if he understood." Id.

 

5 To support his position, defendant relies on the concurring opinion in State v. 

A.M., 452 N.J. Super. 587, 602 (App. Div. 2018) (Fuentes, J., concurring), rev'd, 

___ N.J. ___ (2019). Following briefing on appeal, the Court rendered its 

decision in A.M. Neither party has submitted a supplemental brief citing the 

Court's decision. See R. 2:12-2(b).
10 A-0906-17T3

at 4. The defendant verbally affirmed in Spanish each time, and initialed the 

form next to each right. Ibid. The detective repeated that process with the 

waiver portion of the form. Ibid. The detective remained for the interview to 

"translate[] as needed," during which the defendant made an inculpatory 

statement. Ibid.

The Court upheld the trial judge's determination that "the video showed 

[the] defendant reviewing the waiver portion of the form, signing his name to 

indicate that he read and attested to the waiver portion, appearing alert and 

cognizant while the form was explained to him and while he signed it, and 

responding to questions." Id. at 8. That conduct suggested the defendant 

understood his rights as well as the waiver. Ibid. Thus, the defendant's signature 

on the waiver form "constituted a knowing, intelligent, and voluntary express 

waiver." Ibid. The Court elaborated:

While the better practice is to read the entire Miranda

rights form aloud to a suspect being interrogated, based 

upon the trial court's factual findings we determine, 

however, the failure of [the detective] to do so here did 

not "improperly shift[] the burden of proof to defendant 

to alert the interrogating officers about any difficulty he 

may be having understanding the ramifications of a 

legal waiver." To eliminate questions about a suspect's 

understanding, the entire Miranda form should be read 

aloud to a suspect being interrogated, or the suspect 

should be asked to read the entire form aloud. Where 
11 A-0906-17T3

that is not done, the suspect should be asked about his 

or her literacy and educational background.

[Ibid. (alteration in original) (emphasis added) (citation 

omitted)].

Unlike the detective in A.M., here Bolivar did not act as an interpreter; 

instead she administered Miranda rights in the language defendant 

acknowledged he understood. Indeed, the record is devoid of any indication 

defendant failed to understand her, even though the State did not elicit specific 

details concerning Bolivar's proficiency in Spanish or that they spoke the same 

dialect.

Moreover, defendant's interview was conducted nearly four years before 

the Court rendered its decision in A.M. Nonetheless, Bolivar adhered to the 

"better practice" of reading the waiver form aloud to defendant. Ibid. Because 

Bolivar employed that practice, and was readily able to determine defendant 

understood her questions, it was unnecessary for her to inquire further about his 

literacy and educational background. See ibid. As noted by the motion judge, 

the video recording of the waiver demonstrated "defendant's statement was 

completely knowing and voluntary." Those findings are supported by 

substantial credible evidence in the record. We therefore discern no reason to 

disturb the judge's decision. See S.S., 229 N.J. at 381.
12 A-0906-17T3

Little needs to be said about defendant's newly-minted contention that 

Bolivar's introductory comments and pedigree questions nullified the Miranda

warnings, which were administered immediately thereafter. Even when a 

defendant is in custody, police are not required to administer Miranda warnings 

before questioning to obtain routine pedigree information. See, e.g., State v. 

Melendez, 454 N.J. Super. 445, 457-58 (App. Div. 2018); State v. Mallozzi, 246 

N.J. Super. 509, 515 (App. Div. 1991). Considered "ministerial in nature and 

beyond the right to remain silent," pedigree information falls outside the scope 

of Miranda. State v. M.L., 253 N.J. Super. 13, 21 (App. Div. 1991); Mallozzi, 

246 N.J. Super. at 516.

Notably, each defendant in M.L., Mallozzi, and Melendez had been placed 

under arrest before police elicited pedigree information, thereby attenuating 

defendant's argument even further. Arguably, as the motion judge recognized, 

defendant was not in custody when Bolivar asked pedigree-related questions. 

Regardless, "[e]ven unexpected incriminating statements made by in-custody 

defendants in response to non-investigative questions by the police without prior 

Miranda warnings are admissible." M.L., 253 N.J. Super. at 21; see also

Mallozzi, 246 N.J. Super. at 516.
13 A-0906-17T3

II.

A.

We turn to defendant's final contention that his guilty plea violated Rule

3:9-2.6 For the first time on appeal, defendant claims the trial court denied his 

right to speak with an immigration attorney regarding "all of the potential 

immigration consequence[s] of his [guilty] plea . . . not just whether he would 

be deported[.]" Defendant's claims are unavailing.

Pertinent to this appeal, after ascertaining that defendant was not a United 

States citizen, the plea judge7specifically asked defendant whether he had 

spoken with an immigration attorney. After defendant indicated that he had not 

done so, his attorney interjected that she had "advised [defendant] as to the 

 

6 Rule 3:9-2 provides in pertinent part (emphasis added):

The court, in its discretion, may refuse to accept a plea 

of guilty and shall not accept such plea without first 

questioning the defendant personally, under oath or by 

affirmation, and determining by inquiry of the 

defendant and others, in the court's discretion, that there 

is a factual basis for the plea and that the plea is made 

voluntarily, not as a result of any threats or of any 

promises or inducements not disclosed on the record, 

and with an understanding of the nature of the charge 

and the consequences of the plea.

7 The plea judge was not the same judge who decided the State's motion to admit 

defendant's statement.
14 A-0906-17T3

effects of the guilty plea and that he would almost certainly be deported as a 

result of this guilty plea." (Emphasis added). The following exchange ensued 

between the court and defendant:

THE COURT: Okay . . . you understand that you face 

deportation as a result of these charges?

[DEFENDANT]: Yes.

THE COURT: You understand that it could affect your 

ability to become a U.S. citizen?

[DEFENDANT]: Whether it would be difficult or –

THE COURT: Yes. It could affect -- it could prevent 

you from becoming a U.S. citizen.

[DEFENDANT]: Yes.

THE COURT: Do you understand that? Okay.

[DEFENDANT]: Yes.

THE COURT: And when you are deported if you 

attempt to come back into the country it could affect 

your ability to come back into the country.

[DEFENDANT]: Yes, I understand that.

THE COURT: Okay. You understand that you have a 

right to speak with an immigration attorney who can 

give you all the details of what's included with this plea 

agreement but by pleading guilty, without doing so, 

you're waiving your right to speak with an immigration 

attorney, do you understand that?
15 A-0906-17T3

[DEFENDANT]: Yes, I understand.

THE COURT: And that's what you want to do today?

[DEFENDANT]: If there's an opportunity to do it then 

I have to do it. 

THE COURT: Okay. . . . I provide you with the 

opportunity to speak with an immigration attorney, but 

we do not pay for the immigration attorney. You're 

represented by the Public Defendant's Office and it's 

been explained that you have no access to an 

immigration attorney or the funds to pay one on your 

own. So your public defender has coordinated with an 

immigration attorney and has provided you with the 

information that she was able to ascertain. So I could 

give you the chance to speak with an immigration 

attorney but if you don't have the money to hire one and 

you don't have the ability to get one, then you wouldn't 

be able to see one because we don't provide that for you.

[DEFENDANT]: Then I cannot do anything.

THE COURT: Okay. So you're waiving your right to 

speak with an immigration attorney and accepting the 

information that's been provided by your defense 

attorney?

[DEFENDANT]: Yes.

After defendant established a factual basis for aggravated sexual assault of 

X.M., the judge accepted defendant's guilty plea, finding it was entered "freely 

and voluntarily without threat or coercion."
16 A-0906-17T3

B.

"For a plea to be knowing, intelligent and voluntary, the defendant must 

understand the nature of the charge and the consequences of the plea." State v. 

Johnson, 182 N.J. 232, 236 (2005). Relevant here, a defendant has a right to be 

informed about potential immigration consequences of pleading guilty. Padilla 

v. Kentucky, 559 U.S. 356, 371 (2010); State v. Nuñez-Valdéz, 200 N.J. 129, 

143 (2009).

In Nuñez-Valdéz, the Court found the defendant demonstrated he received 

ineffective assistance of counsel under Sixth Amendment standards when his 

first plea counsel had provided false advice assuring him that deportation would 

not flow from his guilty plea, and successor counsel compounded that with 

affirmatively misleading information concerning the deportation consequences 

of his plea of guilty. Id. at 140-43. The Court held that when counsel provides 

false or affirmatively misleading advice about the deportation consequences of 

a guilty plea, and the defendant demonstrates that he would not have pled guilty 

had he been provided with accurate information, an ineffective assistance of 

counsel claim has been established. Id. at 143.

One year later, the United States Supreme Court decided Padilla v. 

Kentucky, holding that defense attorneys must advise their clients of potential 
17 A-0906-17T3

immigration consequences of pleading guilty or risk providing constitutionally 

deficient assistance of counsel. 559 U.S. at 371. The Padilla Court 

distinguished cases in which deportation is certain from those in which the 

immigration consequences of a plea are not as clear. Specifically, "a criminal 

defense attorney need do no more than advise a noncitizen client that pending 

criminal charges may carry a risk of adverse immigration consequences. But 

when the deportation consequence is truly clear, as it was in th[at] case, the duty 

to give correct advice is equally clear." Id. at 369 (footnote omitted).

Applying the principles of Padilla and Nuñez-Valdéz to the facts of this 

case, we find no deficiency in the record. Nuñez-Valdéz proscribed affirmative 

misinformation and misleading advice, which is not at issue here. Instead, the 

record supports the conclusion that defendant knew with certainty he would be 

deported.

We further reject defendant's argument that the plea judge's use of the 

non-mandatory term, "could" in explaining collateral immigration consequences 

was inadequate because defendant had "a right to know if his plea completely 

foreclosed" United States citizenship or reentry into the country. There is no 

obligation in this State that defense counsel or the court apprise defendant with 
18 A-0906-17T3

complete certainty about collateral immigration consequences. 8 Rather, 

defendant was entitled to information regarding potential immigration 

consequences of pleading guilty. Padilla, 559 U.S. at 369; see State v. Gaitan, 

209 N.J. 339, 363 (2012) (recognizing the same and acknowledging that there is 

no expectation that defense counsel "become versed in immigration law in order 

to secure a knowing and voluntary plea"). Because defendant was so informed 

here, we discern no basis to vacate his guilty plea.

To the extent not otherwise addressed, defendant's remaining contentions 

lack sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e) 

(2).

Affirmed.

 

8 Defendant briefly references statutes enacted in other jurisdictions, purporting

to support his position that a court must advise a defendant of all collateral 

immigration consequences of a guilty plea. However, at least some of those 

statutes only require the judge "to advise a defendant pleading guilty that the 

conviction may result in deportation, exclusion from admission to the United 

States, or denial of naturalization . . . ." Cal. Penal Code § 1016.5 (Emphasis 

added). Such was the procedure employed by the plea judge here. Indeed, 

question 17 on the plea form spotlights that inquiry.