1

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the 

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the 

Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Anthony Sims, Jr. (A-53-20) (085369)

Argued October 12, 2021 -- Decided March 16, 2022 -- Revised March 16, 2022

PATTERSON, J., writing for the Court.

In this appeal, defendant Anthony Sims, Jr. challenges his conviction of attempted 

murder and weapons offenses arising from the April 9, 2014 shooting of P.V. The Court 

first considers the Appellate Division majority’s holding that police officers, prior to 

interrogation, are required to inform an arrestee of the charges that will be filed against 

him, even when no complaint or arrest warrant has been issued identifying those charges.

Here, the divided panel found that the police officers who interrogated defendant violated 

his Miranda rights by not providing that information. Second, the Court considers 

whether the trial court’s decision to admit at trial P.V.’s prior testimony at a pretrial 

hearing violated the rule against hearsay and the Confrontation Clause. 

On April 13, 2014, four days after the shooting, detectives went to the hospital and 

met with P.V., who identified defendant as the man who shot him in a recorded 

statement. On April 14, 2014, prior to the issuance of any complaint or warrant or the 

filing of formal charges against defendant, detectives arrested defendant and conducted a 

videorecorded interview. Defendant was read his Miranda rights and he waived those 

rights. In an interview that lasted just over two hours, defendant gave a statement in 

which he said that he knew P.V., that he was aware of the shooting, and that his girlfriend 

owned a vehicle that matched the description of a vehicle observed near the scene of 

P.V.’s shooting. Defendant denied that he was involved in the shooting.

Defendant moved to suppress his April 14, 2014 statement to police. Based on the 

totality of the circumstances, the trial court held that defendant’s waiver of his Miranda

rights was knowing and voluntary, and accordingly denied defendant’s motion. 

Defendant also moved to suppress P.V.’s April 13, 2014 statement to police at the 

hospital. On April 14, 2016, the trial court held a Wade/Henderson hearing, and the State 

called P.V. as a witness. During his direct examination, P.V. testified that he 

remembered nothing about the incident and had no recollection of telling detectives that 

defendant was the person who shot him. When defense counsel cross-examined P.V., he 

suggested that he had learned details of the shooting in later conversations with his 

mother, reiterated that he had no recollection of the incident or his conversation with 

detectives, and stated that he feared the prosecutor’s office and the police department. 
2

P.V. was subsequently indicted for the murder of defendant’s brother. Although 

offered an immunity agreement by the State and ordered to testify by the trial court, P.V. 

asserted his Fifth Amendment privilege not to testify. The trial court permitted the State 

to present at trial P.V.’s testimony at the Wade/Henderson hearing as the prior testimony 

of an unavailable witness. 

The Appellate Division vacated defendant’s convictions and remanded for a new 

trial. 466 N.J. Super. 346, 354-55 (App. Div. 2021). A divided panel held that the police 

officers who interrogated defendant violated his Miranda rights. Id. at 361-69. The court

unanimously held that the trial court’s decision to admit at trial P.V.’s prior testimony 

violated the rule against hearsay and the Confrontation Clause. Id. at 377-78.

The State appealed as of right as to the Miranda issue, and the Court granted 

certification on the remaining issues. 246 N.J. 146 (2021).

HELD: The Court declines to adopt the new rule prescribed by the Appellate Division 

and finds no plain error in the trial court’s denial of defendant’s motion to suppress his 

statement to police. The Court also concurs with the trial court that the victim’s 

testimony at the pretrial hearing was admissible under N.J.R.E. 804(b)(1)(A)’s exception 

to the hearsay rule for the prior testimony of a witness unavailable at trial, and that the 

admission of that testimony did not violate defendant’s confrontation rights. 

1. The Court first considers the trial court’s decision denying defendant’s motion to 

suppress his statement to police. Under New Jersey law, the State bears the burden to 

prove beyond a reasonable doubt that a suspect’s waiver of his privilege against selfincrimination prior to an inculpatory statement was knowing, intelligent, and voluntary in 

light of all the circumstances. In State v. A.G.D., the Court departed from the totality-ofthe-circumstances rule and required law enforcement officers to inform a suspect that a 

criminal complaint has been filed or arrest warrant has been issued before interrogating 

him. 178 N.J. 56, 68-69 (2003). The Court reasoned that the failure to inform a suspect 

that a criminal complaint or arrest warrant has been filed or issued deprives that person of 

information indispensable to a knowing and intelligent waiver of rights. Id. at 68. The 

rule announced in A.G.D. is clear and circumscribed. If a complaint-warrant has been 

filed or an arrest warrant has been issued against a suspect whom law enforcement 

officers seek to interrogate, the officers must disclose that fact to the interrogee and 

inform him in a simple declaratory statement of the charges filed against him before any 

interrogation. The officers need not speculate about additional charges that may later be 

brought or the potential amendment of pending charges. (pp. 23-28)

2. The Appellate Division’s expansion of the rule stated in A.G.D. is unwarranted and 

impractical. A.G.D. mandates disclosure of factual information about pending charges 

that the officer can readily confirm and clearly convey. The principle stated in A.G.D.

stands in stark contrast to the Appellate Division’s expanded definition of an arrestee’s 
3

Miranda rights, which relies not on an objective statement of the charges pending against 

the arrestee, but on an officer’s prediction, based on information learned to date in a 

developing investigation, of what charges may be filed. The Appellate Division’s new 

rule would starkly depart from the Court’s prior precedent and from the law of every 

other jurisdiction. The Court affirms the trial court’s application of the totality-of-thecircumstances standard to deny defendant’s motion to suppress his statement. Defendant 

was read his Miranda rights and waived those rights verbally and in writing. (pp. 28-33) 

3. The Court next considers the trial court’s decision to admit into evidence P.V.’s 

testimony at the Wade/Henderson hearing at defendant’s trial. N.J.R.E. 804(b)(1)(A) 

authorizes the admission of an unavailable declarant’s testimony from a prior proceeding 

if the testimony “is now offered against a party who had an opportunity and similar 

motive in the prior trial, hearing or deposition to develop the testimony by examination or 

cross-examination.” A declarant who persists in refusing to testify concerning the subject 

matter of the statement despite an order of the court to do so is deemed unavailable to 

testify at trial. N.J.R.E. 804(a)(2). The proponent of the evidence bears the burden of 

proving that the requirements of N.J.R.E. 804 are met. (pp. 33-38)

4. The trial court’s admission of P.V.’s prior testimony constituted a proper application 

of N.J.R.E. 804(b)(1)(A). P.V. was unavailable under N.J.R.E. 804(a)(2) because he 

confirmed that he would invoke his right against self-incrimination if called as a witness 

despite the State’s offer of immunity and the trial court’s order that he testify. At the 

Wade/Henderson hearing, defense counsel not only had the opportunity to cross-examine 

P.V., as N.J.R.E. 804(b)(1)(A) requires, but thoroughly and skillfully questioned P.V. 

The jury had the benefit of that cross-examination when it considered P.V.’s hearing 

testimony and assessed his credibility. The State also demonstrated that defendant had a 

similar motive at the hearing to develop the testimony because at the hearing, as at trial, 

defendant’s motive was to impeach P.V.’s credibility, underscore P.V.’s claimed lack of 

recollection, suggest that police coercion was a factor in P.V.’s identification of 

defendant, and attack P.V.’s statement as unreliable. (pp. 38-40) 

5. The Court considers whether the introduction of P.V.’s statement violated defendant’s 

rights under the Confrontation Clause. The Federal and State Constitutions provide that 

in all criminal prosecutions, the accused shall enjoy the right to be confronted with the 

witnesses against him. In Crawford v. Washington, the United States Supreme Court 

held that the framers of the Constitution intended the Confrontation Clause to bar the 

admission of “testimonial statements of a witness who did not appear at trial unless [the 

declarant is] unavailable to testify, and the defendant had . . . a prior opportunity for 

cross-examination.” 541 U.S. 36, 53-54 (2004). “[T]he Confrontation Clause guarantees 

an opportunity for effective cross-examination, not cross-examination that is effective in 

whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 

474 U.S. 15, 20 (1985). Federal courts have held that a witness’s testimony at a 

preliminary hearing, such as the Wade/Henderson hearing at issue here, can provide the 
4

constitutionally mandated opportunity to cross-examine. Moreover, the defendant may 

be deemed to have had a prior opportunity for cross-examination even if the witness 

denies recollection of relevant events. The Confrontation Clause is not violated by the 

admission of an unavailable witness’s prior testimony simply because that witness claims 

that he does not recall the event at issue. (pp. 40-44)

6. P.V.’s Wade/Henderson hearing testimony met the requirements of the Confrontation 

Clause. Just as P.V. was an “unavailable” declarant as defined in N.J.R.E. 804(a)(2), he 

was “unavailable to testify” at trial for purposes of the Confrontation Clause. See

Crawford, 541 U.S. at 53. And defendant had the adequate “prior opportunity for crossexamination” envisioned by the Supreme Court’s confrontation jurisprudence. See ibid. 

At the hearing, defendant had the opportunity to attack the credibility of P.V.’s statement 

identifying defendant as the shooter. Indeed, defendant elicited P.V.’s testimony 

disclaiming recollection of any statement, implying that comments attributed to him were 

his mother’s, and inferring that he acted out of fear of some of the investigating officers. 

Finally, the trial court did not improperly admit P.V.’s April 13, 2014 statement to police 

at the hospital through the State’s questioning of P.V. at the Wade/Henderson hearing. 

P.V.’s statement was not offered into evidence -- let alone admitted into evidence -- at 

defendant’s trial, and the court was not asked to exclude any portion of his testimony. 

There was no improper admission of hearsay within hearsay here. (pp. 44-47)

REVERSED and REMANDED to the Appellate Division. 

JUSTICE ALBIN, dissenting, would reverse Sims’s conviction on the grounds 

that the admission of Sims’s statement violated his right against self-incrimination and 

the admission of P.V.’s hearsay statements implicating Sims violated Sims’s 

confrontation rights. Justice Albin writes that concealing from Sims the charges that he

was facing did not comport with the guarantees afforded to the accused under New 

Jersey’s law against self-incrimination or jurisprudence, noting that police officers should 

have no difficulty telling the person the charge or charges that they believe justify the 

defendant’s detention. Without that critical information, Justice Albin explains, a 

defendant cannot intelligently decide whether to waive his right against selfincrimination. According to Justice Albin, Sims did not have the same motive or 

opportunity to cross-examine P.V. at the Wade hearing that he would have at trial had 

P.V. testified. Justice Albin stresses the limited purpose of a Wade hearing and that 

Sims’s attorney made clear that his cross-examination of P.V. at trial would have been far 

more extensive. In Justice Albin’s view, P.V.’s hearsay statement at the hospital was

laundered through the Wade hearing intact and presented fresh at trial but without a 

witness to confront. 

CHIEF JUSTICE RABNER and JUSTICE SOLOMON join in JUSTICE 

PATTERSON’s opinion. JUSTICE ALBIN filed a dissent, in which JUSTICE 

PIERRE-LOUIS joins.
1 

SUPREME COURT OF NEW JERSEY

A-53 September Term 2020

085369

State of New Jersey, 

Plaintiff-Appellant, 

v.

Anthony Sims, Jr., 

Defendant-Respondent. 

On appeal from and certification to the Superior Court, 

Appellate Division, whose opinion is reported at

466 N.J. Super. 346 (App. Div. 2021).

Argued

October 12, 2021

Decided

March 16, 2021

Revised

March 16, 2022

Monica do Outeiro, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause for 

appellant (Lori Linskey, Acting Monmouth County 

Prosecutor, attorney; Maura K. Tully, Assistant 

Prosecutor, of counsel and on the briefs).

Rochelle M. Watson, Deputy Public Defender II, 

argued the cause for respondent (Joseph E. Krakora, 

Public Defender, attorney; Rochelle M. Watson, and 

Robert Carter Pierce, Designated Counsel, on the 

briefs).

Frank Muroski, Deputy Attorney General, argued the 

cause for amicus curiae Attorney General of New Jersey 

(Andrew J. Bruck, Acting Attorney General, attorney; 

Frank Muroski, of counsel and on the brief).
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John McNamara, Jr., Special Deputy Attorney 

General/Acting Chief Assistant Morris County 

Prosecutor, argued the cause for amicus curiae County 

Prosecutors Association of New Jersey (Esther A. Suarez, 

President, County Prosecutors Association of New 

Jersey, attorney; John McNamara, Jr., of counsel and on 

the brief).

Aidan P. O’Connor argued the cause for amicus curiae

Association of Criminal Defense Lawyers of New Jersey 

(Pashman Stein Walder Hayden, attorneys; CJ Griffin, on 

the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, defendant Anthony Sims, Jr. challenges his conviction of 

attempted murder and weapons offenses arising from the April 9, 2014 

shooting of a twenty-eight-year-old man, P.V., outside his grandmother’s 

home. 

The appeal requires that we consider two issues. First, we review as of 

right the decision of a divided Appellate Division panel vacating defendant’s 

convictions and remanding for a new trial on the ground that the police 

officers who interrogated defendant violated his rights under Miranda v. 

Arizona, 384 U.S. 436 (1966). State v. Sims, 466 N.J. Super. 346, 361-69

(App. Div. 2021). Deciding an issue that defendant did not raise before the 

trial court, the Appellate Division adopted a new rule requiring police officers, 

prior to interrogation, to inform an arrestee of the charges that will be filed 
3

against him, even when no complaint or arrest warrant has been issued 

identifying those charges. Id. at 369. We decline to adopt the rule prescribed

by the Appellate Division and find no plain error in the trial court’s denial of 

defendant’s motion to suppress his statement to police. 

Second, we consider the Appellate Division’s ruling that defendant was 

deprived of a fair trial because of an evidentiary determination by the trial 

court. The Appellate Division held that the trial court’s decision to admit at 

trial P.V.’s prior testimony at a pretrial hearing, in which P.V. claimed that he 

had no recollection of an earlier out-of-court statement to police implicating 

defendant in the crime, violated the rule against hearsay and the Confrontation 

Clause. Id. at 377-78. We concur with the trial court that the victim’s 

testimony at the pretrial hearing was admissible under N.J.R.E. 804(b)(1)(A)’s 

exception to the hearsay rule for the prior testimony of a witness unavailable at 

trial, and that the admission of that testimony did not violate defendant’s 

confrontation rights. 

Accordingly, we reverse the Appellate Division’s judgment and remand 

this matter to the appellate court so that it may consider two issues raised by 

defendant that it did not reach. 
4

I.

A.

We derive our summary of the facts from the record presented to the 

trial court in pretrial motions and the trial record. 

On April 9, 2014, P.V.’s grandmother heard P.V. calling for help outside 

her home in Red Bank. She found her grandson “partially in the driveway on 

the pavement” and “partially in the car.” P.V. had sustained twelve bullet 

wounds to the torso, leg, buttocks, and upper arm, and was bleeding “in two, 

three places very badly.” According to P.V.’s grandmother’s trial testimony, 

she asked P.V. “who did this to you,” and he responded, “Sims.” She stated 

that when she pressed her grandson to tell her who “Sims” was, he responded, 

“B.J.’s brother.” P.V.’s grandmother testified that the nickname “B.J.” 

denoted defendant’s brother, whom she knew because he was a friend of 

several members of her family. 

P.V.’s uncle called 9-1-1, and P.V. was taken to a hospital. Police 

officers were initially unable to speak with P.V. because he was intubated. On 

April 13, 2014, four days after the shooting, P.V.’s mother informed Detective 

Robert Campanella of the Red Bank Police Department that P.V. was no 

longer intubated. Later that day, Detective Brian Weisbrot of the Monmouth 

County Prosecutor’s Office, accompanied by Campanella and another Red 
5

Bank officer, Detective James DePonte, went to the hospital and met with 

P.V., who agreed to give them a recorded statement. 

In his statement, P.V. said that on the evening of the shooting, he was 

sitting in his car talking on his phone and “noticed a man crouched down 

holding a gun with two hands aiming in a like crouching position” and that the 

man “started shooting” at him. P.V. stated that “[t]he minute that I looked at 

him, I knew what it was and I knew who it was, Anthony Sims, Jr.,” whom 

P.V. had known for ten years through defendant’s brother, B.J. According to 

the statement, P.V. told the detectives that he and defendant’s brother “had a 

falling out,” “were supposed to fight,” and that “B.J. and Anthony Sims are 

brothers.” P.V. said that he thought that defendant’s brother was involved in 

the shooting incident because he did not have “any other problems with 

Anthony Sims, Jr.” and because, when he saw defendant’s brother B.J. two 

hours before the shooting, B.J. “pulled off.” P.V. identified the weapon used 

by defendant in the shooting as a “black semiautomatic.” 

P.V. identified a photograph of defendant, marked it with defendant’s 

name, and wrote the date and time of the identification and his initials on 

defendant’s photograph. 

On April 14, 2014, prior to the issuance of any complaint or warrant or

the filing of formal charges against defendant, Campanella and Weisbrot 
6

arrested defendant. According to Campanella’s trial testimony, he advised 

defendant “that he was being placed under arrest,” handcuffed him, and told 

him that they would transport him to a satellite facility of the prosecutor’s 

office. Campanella recalled that defendant asked “what was going on and why 

he was being placed under arrest,” and that he told defendant that the officers 

“would get into the details” when they reached the prosecutor’s office. 

Weisbrot, Campanella, and DePonte then transported defendant to the 

prosecutor’s office and escorted him to an interview room. 

Weisbrot and Campanella then conducted a videorecorded interview. 

Using a Miranda waiver form, Weisbrot read defendant his Miranda rights. 

Defendant asked, “[s]o I’m under arrest or something?” Weisbrot told 

defendant, “[y]ou are under arrest yes. . I’m sure you have a ton of questions. 

I’ll be happy to get into all that, okay, in just a few minutes. Let’s just finish 

this form. Okay?” Defendant then acknowledged and waived his Miranda

rights. 

In an interview that lasted just over two hours, defendant gave a 

statement in which he said that he knew P.V., that he was aware of the 

shooting, and that his girlfriend owned a blue Ford Explorer, a vehicle that 

matched the description of a vehicle observed near the scene of P.V.’s 
7

shooting. Defendant denied that he was involved in the shooting and stated 

that his brother, B.J., had no “beef or issues” with P.V. or his family. 

B. 

1.

A grand jury indicted defendant for first-degree attempted murder, with 

a sentencing enhancer that the crime had been committed with a firearm; firstdegree unlawful possession of a weapon, later downgraded by the trial court to 

a second-degree offense; second-degree possession of a weapon for an 

unlawful purpose; and second-degree certain persons not to possess weapons, a 

charge that the State dismissed before trial.

2.

Defendant moved to suppress his April 14, 2014 statement to police. He

conceded that the officers had informed him of his Miranda rights and that he

had acknowledged those rights and signed a waiver form. Defendant argued, 

however, that because the detectives were aware that he was on parole on the 

date of his arrest, they should have refrained from questioning him until they 

determined whether he had an attorney. He also contended that the officers 

used deceptive techniques in a lengthy interrogation, and that they should have 

either repeated the Miranda warnings or terminated questioning. Defendant 

did not claim before the trial court that his statement should be suppressed 
8

because he was not informed before his interrogation of the reason for his 

arrest or the charges that he would later face. 

The trial court conducted a hearing pursuant to N.J.R.E. 104 with respect 

to defendant’s motion to suppress his statement. Based on the totality of the 

circumstances, the court held that the State had proven beyond a reasonable 

doubt that defendant’s waiver of his Miranda rights was knowing and 

voluntary, and accordingly denied defendant’s motion to suppress. 

3.

Defendant also moved to suppress P.V.’s April 13, 2014 statement to 

police at the hospital, in which P.V. identified defendant as the man who shot 

him. 

On April 14, 2016, the trial court held a hearing pursuant to United 

States v. Wade, 388 U.S. 218 (1967) and State v. Henderson, 208 N.J. 208 

(2011). The State called P.V. as a witness at the Wade/Henderson hearing. 

During his direct examination, P.V. claimed that because of the “traumatic 

experience” of the shooting, he remembered nothing about the incident. P.V.

testified that he had no recollection of telling Campanella, Weisbrot, or 

DePonte that defendant was the person who shot him. He claimed that he did 

not recall describing to the officers the weapon used in the shooting, providing 

them with details of the incident, discussing with them a dispute with 
9

defendant’s brother B.J., or initialing a photograph of defendant at their 

request. P.V. confirmed the accuracy of his date and place of birth, address, 

social security number, and other biographical details set forth in his April 13, 

2014 statement, but said that he did not recall providing those details to the 

detectives. 

Defense counsel cross-examined P.V. at the Wade/Henderson hearing. 

P.V. suggested that he had learned details of the shooting in later 

conversations with his mother and reiterated that he had no recollection of the 

incident or his conversation with detectives on April 13, 2014. P.V. stated that

since the date of his statement to the officers, he had cut back on prescription 

medication that had affected his memory. He acknowledged his prior 

convictions and insisted that his testimony at the Wade/Henderson hearing was 

truthful. P.V. said that the officers had not threatened him, but that he feared 

the prosecutor’s office and believed that the Red Bank Police Department was

conducting a “witch hunt” against him. 

Following P.V.’s testimony at the hearing, the State advised the trial 

court that it viewed P.V.’s stated lack of recollection of the shooting to be 

feigned. The court agreed that P.V. was apparently feigning a lack of 

recollection but noted that the jury would determine P.V.’s credibility. The 
10

trial court denied defendant’s motion to suppress P.V.’s out-of-court statement

and granted the State’s motion to admit that statement into evidence. 

On June 6, 2017, the State notified the trial court that P.V. had been 

indicted for the murder of defendant’s brother, B.J. The State told the court 

that it understood that if P.V. were called as a witness at defendant’s trial, he 

would likely invoke his Fifth Amendment privilege against self-incrimination

and decline to testify. The State represented that it had been advised that P.V. 

would refuse to testify even if he were offered immunity. It urged the court to 

hold that P.V. was “unavailable” to testify at trial pursuant to N.J.R.E.

804(a)(2), which provides that a witness who “persists in refusing to testify 

concerning the subject matter of the statement despite an order of the court to 

do so” is “unavailable” for purposes of N.J.R.E. 804. The State asked the trial 

court to admit P.V.’s testimony at the Wade/Henderson hearing as the

testimony of an unavailable witness at a prior hearing pursuant to N.J.R.E.

804(b)(1)(A). 

Defendant opposed the admission of P.V.’s testimony on the ground that 

the attorney who had represented him at the Wade/Henderson hearing had not 

asked P.V. all of the questions that his trial counsel would ask P.V. were he to 

testify before the jury at trial. Defendant argued that he had the right to 

confront P.V. at trial so that the jury could observe his demeanor. He asserted 
11

that there were insufficient indicia of reliability to admit P.V.’s prior testimony

under an exception to the hearsay rule, in light of the uncertainty of P.V.’s

identification of defendant as the shooter. 

The trial court ruled that if P.V. refused to testify on Fifth Amendment 

grounds, he would be deemed unavailable to testify at trial pursuant to 

N.J.R.E. 804(a)(2) and his testimony at the Wade/Henderson hearing would

therefore be admissible at defendant’s trial as the prior testimony of an 

unavailable witness under N.J.R.E. 804(b)(1)(A). 

4.

At defendant’s trial, the State played for the jury his videorecorded 

statement given to police on April 14, 2014. 

At a hearing outside of the presence of the jury, P.V.’s counsel informed 

the trial court that the State, with the approval of the Monmouth County 

Prosecutor and the Attorney General, had offered P.V. an immunity agreement 

pursuant to N.J.S.A. 2A:81-17.3, and that P.V. had nonetheless decided to 

assert his Fifth Amendment privilege if called as a witness at trial. The trial 

court ordered P.V. to testify, but P.V. maintained his position that he would 

refuse to do so. The trial court declared P.V. to be “unavailable” as a witness 

pursuant to N.J.R.E. 804(a)(2), thus permitting the State to present his 
12

testimony at the Wade/Henderson hearing as the prior testimony of an 

unavailable witness. 

P.V. did not testify at defendant’s trial. The trial court instructed the 

jury that P.V. was alive but “legally unavailable” and cautioned the jury not to 

speculate about the reason for P.V.’s unavailability or draw any inference from 

either party’s failure to call him as a witness. 

During the direct examination of Weisbrot, the State presented to the 

jury P.V.’s testimony at the Wade/Henderson hearing, sanitized to remove 

information about P.V.’s prior convictions. The prosecutor read to the jury the 

questions that the State had posed to P.V. at the hearing, which incorporated 

details provided by P.V. during his April 13, 2014 statement to police. 

Weisbrot read P.V.’s answers to those questions, in which P.V. denied any 

recollection of the shooting and said that he remembered nothing about his

conversation with the officers on that date.

In addition to defendant’s statement and the testimony of P.V. at the 

Wade/Henderson hearing, the State presented the testimony of: (1) a witness 

who said that she heard a sound like “firecrackers” and saw a man wearing a 

black hoodie get into a blue SUV; (2) a witness who said he was an 

acquaintance of defendant and that he saw defendant wearing a black hoodie at 

around 6:00 or 6:30, the evening of the shooting; (3) a witness who lived near 
13

the scene of the shooting and stated that when she ran out of her home to 

investigate the sound of gunshots, she saw defendant carrying a gun, and he 

raised the gun in her face; and (4) surveillance video showing a person 

wearing dark clothing and carrying a black semiautomatic pistol running near

the location of the shooting shortly after it occurred.

The jury convicted defendant of all charges. The trial court sentenced 

him to an aggregate term of fifty years’ imprisonment subject to an eighty-five 

percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 

2C:43-7.2, on the attempted murder charge, and concurrent terms of 

imprisonment on the weapons charges. 

C.

Defendant appealed his conviction and sentence. He asserted for the 

first time that the police did not tell him why he was arrested and that the 

admission of his April 14, 2014 statement to police therefore violated his 

Miranda rights and constituted plain error. Defendant contended that all 

evidence obtained as a result of his statement should have been excluded as the 

“fruit of the poisonous tree.” Defendant also challenged the admission of

P.V.’s testimony at the Wade/Henderson hearing as a violation of the Rules of 

Evidence and his Sixth Amendment confrontation rights. In addition, 

defendant argued for the first time that the State committed prosecutorial 
14

misconduct by virtue of a comment made by the prosecutor in summation and

asserted that his sentence was excessive. 

In a published opinion written by Judge Rothstadt, with Judge Susswein 

concurring in part and dissenting in part, the Appellate Division vacated

defendant’s conviction and remanded the matter to the trial court for a new 

trial. Sims, 466 N.J. Super. at 354-55, 379. 

By a vote of two to one, the Appellate Division held that the trial court 

violated defendant’s Miranda rights and committed plain error when it 

admitted into evidence defendant’s April 14, 2014 statement to police. Id. at 

361-69. 

The Appellate Division majority relied on our decision in State v. 

A.G.D., in which we held that a Miranda waiver is invalid if police do not 

inform a defendant that a criminal complaint has been filed or an arrest 

warrant has been issued against him. Sims, 466 N.J. Super. at 364 (citing 

A.G.D., 178 N.J. 56, 58-59 (2003)). The majority also invoked our decision in 

State v. Vincenty, in which we held that if charges have been filed against a 

suspect prior to his interrogation, law enforcement officers should provide him 

with a “simple declaratory statement” identifying those charges before 

questioning him. Sims, 466 N.J. Super. at 364 (quoting Vincenty, 237 N.J.

122, 134 (2019)). 
15

The Appellate Division majority construed A.G.D. and Vincenty to 

require that a defendant who has been arrested “be advised of the ‘actual’ and 

‘specific’ charges he is facing,” whether or not any such charges have been

formally filed. Id. at 367 (quoting Vincenty, 237 N.J. at 135). It reasoned that 

a defendant, “[o]nce arrested,” must be “informed of the charge for which he 

was being placed under arrest before deciding whether to waive his right 

against self-incrimination.” Ibid. The Appellate Division majority held that 

“in response to defendant’s inquiry as to whether he was arrested, the 

interrogating officers not telling defendant the charges for which he was 

arrested did not satisfy the requirements of A.G.D. and Vincenty.” Ibid. 

Two footnotes in the majority opinion defined the scope of the Appellate 

Division’s new rule. First, the Appellate Division stated that “in this case we 

are only addressing where an officer’s probable cause to arrest is developed 

through an investigation, not when an arrest is made spontaneously when 

responding to a crime scene or after witnessing a crime being committed.” Id.

at 368 n.6. The court added that its holding did “not address custodial 

interrogation that occurs after an ‘unforeseeable and spontaneous’ arrest 

because those facts are not in this case.” Ibid. (quoting State v. Witt, 223 N.J.

409, 450 (2015)).
16

Second, the Appellate Division majority dismissed the dissenting judge’s 

concern “that our holding will create logistical problems for law enforcement,” 

noting that 

[o]ur opinion is not intended to suggest that the charge 

upon which an officer believes he or she has probable 

cause to arrest must be the specific charge with which 

a defendant is ultimately charged. Rather, our holding 

is limited to requiring that the interrogating officer 

inform the arrested interrogee of the charge that, at the 

time of arrest, the officer had probable cause to believe 

defendant committed. We recognize that the charge 

may morph into a different degree crime or even a 

totally different offense as a post-interrogation 

investigation develops. We still conclude the law 

requires an officer be transparent and truthful about 

why a defendant was arrested before a request is made 

for a waiver of his or her Miranda rights. 

[Id. at 368-69 n.7.]

Acknowledging “that the trial court did not have an opportunity to 

consider the issue that we determined warrants a new trial in this case,” the 

Appellate Division majority left to the trial court’s determination on remand 

the scope of the evidence to be barred on retrial by virtue of its holding. Id. at 

369.

In his concurring and dissenting opinion, Judge Susswein parted 

company with the majority on the Miranda issue. Id. at 379-86 (Susswein, J., 

concurring and dissenting). He noted that when a judge has issued a criminal 
17

complaint or arrest warrant, police officers are in a position “to provide a 

‘simple declaratory statement’ to inform an interrogee accurately and 

definitively as to the nature and seriousness of the charges that have been filed

as of the time of a custodial interrogation.” Id. at 381 (quoting Vincenty, 237 

N.J. at 134). Judge Susswein observed that, in such a setting, “there is no 

ambiguity as to the essential nature and gradation of the charge(s) the 

defendant is facing because the specific offense(s) for which a judge found 

probable cause are set forth in the charging document.” Ibid. (citing R. 3:2-

1(a)(1)). Judge Susswein explained that in a case in which a judge has not 

approved charges against a suspect, an officer may “have a lawful basis for an 

arrest but insufficient information, pending further investigation, to determine 

which exact offense(s) have been committed.” Ibid. In Judge Susswein’s 

view, “extending the bright-line rule established in Vincenty could put the 

proverbial cart before the horse by requiring a police officer to advise the 

custodial interrogee as to the specific charges he is facing before an informed 

charging decision can be made.” Id. at 383. 

The Appellate Division unanimously concluded that the trial court 

abused its discretion when it admitted P.V.’s testimony at the Wade/Henderson

hearing because the testimony revealed to the jury P.V.’s assertions in his 

April 13, 2014 statement to police. Id. at 378. It rejected the trial court’s 
18

holding that P.V.’s hearing testimony met the requirements of N.J.R.E.

804(b)(1)(A), ruling that defendant lacked an opportunity and similar motive 

in the Wade/Henderson hearing “to develop the victim’s testimony by crossexamination.” Id. at 377 (citing State v. Coder, 198 N.J. 451, 467 (2009)). 

The Appellate Division held that because “the purpose of the hearing was 

limited to the victim’s out-of-court identification of defendant,” defendant 

could not achieve the objective he would have pursued at trial: “to attack the 

victim’s credibility in the eyes of the factfinder, specifically the veracity of his 

identification of defendant as the shooter.” Ibid.

The Appellate Division also ruled that the admission of P.V.’s testimony 

at the Wade/Henderson hearing violated defendant’s rights under the 

Confrontation Clause. Ibid. The court held that because P.V. claimed that he 

had no recollection of the shooting, defendant had no “meaningful opportunity 

to cross-examine” him. Id. at 378. The court held that because P.V.’s 

statement was elicited through the testimony of Weisbrot -- not the testimony 

of P.V. himself -- “defendant was deprived of the jury being able to assess the 

victim’s demeanor.” Ibid. The Appellate Division concluded that by 

admitting P.V.’s testimony at the Wade/Henderson hearing, the trial court had 

also admitted P.V.’s April 13, 2014 statement to police at the hospital, because 
19

the State’s questioning of P.V. incorporated the contents of that statement. Id.

at 371-72, 377-78. 

The Appellate Division did not reach the prosecutorial misconduct and 

sentencing issues raised by defendant. Id. at 378. 

D.

Pursuant to Rule 2:2-1(a)(2) and based on Judge Susswein’s dissent, the 

State appealed as of right the Appellate Division’s decision vacating 

defendant’s conviction based on a violation of his Miranda rights. We granted 

the State’s petition for certification, in which it challenged the Appellate 

Division’s holding regarding the trial court’s admission of P.V.’s testimony at 

the Wade/Henderson hearing, as well as its decision regarding defendant’s 

waiver of his Miranda rights. 246 N.J. 146 (2021). We also granted the 

motions of the Attorney General, the County Prosecutors Association of New 

Jersey, and the Association of Criminal Defense Lawyers of New Jersey to 

appear as amici curiae.

II.

A.

The State urges the Court to reverse the Appellate Division’s 

determination that defendant’s Miranda waiver was not knowing, intelligent, 

and voluntary because the detectives who questioned him did not identify the 
20

charges that were later brought against him. It argues that the new rule 

announced by the Appellate Division is an unwarranted extension of A.G.D.

and Vincenty that would introduce ambiguity and uncertainty into police 

interrogations of arrestees. The State concurs with Judge Susswein that the 

Appellate Division’s rule is unworkable because it would require police 

officers to speculate on the charges that an arrestee might eventually face when 

no judge has issued a complaint-warrant or arrest warrant. 

The State also challenges the Appellate Division’s ruling regarding the 

admission at defendant’s trial of P.V.’s testimony at the Wade/Henderson

hearing. According to the State, P.V. was clearly “unavailable” under N.J.R.E.

804(a)(2) because he invoked his Fifth Amendment rights and declined to 

testify despite an offer of immunity, and the requirements of N.J.R.E.

804(b)(1)(A) were satisfied because defendant had a sufficient opportunity and 

similar motive to cross-examine P.V. at the hearing. The State contends that 

pretrial testimony admissible under N.J.R.E. 804(b)(1) also satisfies the 

mandate of the Confrontation Clause. 

B.

Defendant concurs with the Appellate Division majority that our 

decisions in A.G.D. and Vincenty compel interrogating officers to advise an 

individual arrested without a warrant about the charges that he faces before 
21

questioning him. He asserts that absent such a disclosure, the arrestee’s 

Miranda waiver is invalid because he is not in a position to assess his 

sentencing exposure or limit the scope of his statement. Defendant argues that 

the concerns expressed by Judge Susswein and the State about the practical 

impact of the Appellate Division’s new rule are unfounded because law 

enforcement officers are thoroughly trained to assess probable cause and make

charging determinations. 

Defendant also urges that we affirm the Appellate Division’s decision 

reversing his conviction because the trial court admitted into evidence P.V.’s

testimony at the Wade/Henderson hearing. He contends that the admission of 

that testimony violated the Rules of Evidence because he did not have a

“similar motive” to cross-examine P.V. at the hearing and at trial, and that

portions of the hearing transcript admitted into evidence disclosed to the jury 

P.V.’s out-of-court statement. Defendant also asserts that the evidence 

violated his confrontation rights because the jury had no opportunity to 

observe P.V.’s demeanor. 

C.

Amicus curiae the Attorney General argues that the Appellate Division’s 

new Miranda waiver rule is unprecedented, unnecessary, and impractical, and 

urges us to reject that rule. The Attorney General contends that the admission 
22

of P.V.’s pretrial testimony satisfied N.J.R.E. 804(b)(1)(A) and the 

Confrontation Clause because defendant had both an opportunity to crossexamine the witness and a motive to do so similar to the motive defendant

would have had if his counsel had cross-examined P.V. at trial. 

D.

Amicus curiae the County Prosecutors Association of New Jersey agrees

with the State and the Attorney General that the Appellate Division majority’s 

expanded Miranda rule unnecessarily impedes interrogations of uncharged 

suspects. 

E.

Amicus curiae the Association of Criminal Defense Lawyers of New 

Jersey contends that the Appellate Division majority’s Miranda ruling is a 

logical extension of A.G.D. that is easily implemented because officers know 

what crimes are at issue when they arrest suspects and can identify those 

crimes to arrestees before interrogating them. Amicus asserts that defendant 

lacked a motive to cross-examine P.V. that was similar to the motive that he 

would have had at trial and argues that defendant was deprived of meaningful 

confrontation because P.V. did not testify at trial.
23

III.

A.

We first consider the trial court’s decision denying defendant’s motion 

to suppress his statement to police.

When we review a trial court’s decision on a motion to suppress a 

defendant’s statement, we defer to the factual findings of the trial court if 

those findings are supported by sufficient credible evidence in the record. 

State v. S.S., 229 N.J. 360, 374 (2017). Because defendant did not argue 

before the trial court that his Miranda waiver was invalid because he was not 

informed, prior to his interrogation, of the offenses for which he was later 

charged, we review the trial court’s determination on that question for plain 

error. R. 2:10-2; State v. Funderburg, 225 N.J. 66, 79 (2016). We review de 

novo the Appellate Division’s legal determination expanding the Miranda

rights of arrestees in cases in which no complaint-warrant or arrest warrant has 

been issued. Vincenty, 227 N.J. at 132; State v. Hubbard, 222 N.J. 249, 263 

(2015). 

B.

“The privilege against self-incrimination, as set forth in the Fifth 

Amendment to the United States Constitution, is one of the most important 

protections of the criminal law.” State v. Presha, 163 N.J. 304, 312 (2000)
24

(citing U.S. Const. amend. V; State v. Hartley, 103 N.J. 252, 262 (1986)). 

Although New Jersey has no constitutional provision addressing the privilege 

against self-incrimination, our “common law has granted individuals the ‘right 

against self-incrimination since colonial times.’” Vincenty, 237 N.J. at 132 

(quoting A.G.D., 178 N.J. at 66). Our law maintains “an unyielding 

commitment to ensure the proper admissibility of confessions.” Ibid. (quoting 

State v. Reed, 133 N.J. 237, 252 (1993)). 

Under New Jersey law, “[a] confession obtained during a custodial 

interrogation may not be admitted in evidence unless law enforcement officers 

first informed the defendant of his or her constitutional rights.” State v. 

Hreha, 217 N.J. 368, 382 (2014) (citing Miranda, 384 U.S. at 444). We 

impose on the State the burden to prove beyond a reasonable doubt that a 

suspect’s waiver of his privilege against self-incrimination prior to an 

inculpatory statement “was knowing, intelligent, and voluntary in light of all 

the circumstances.” Presha, 163 N.J. at 313. 

Generally, when a court determines whether an interrogee has 

knowingly, intelligently, and voluntarily waived his right against selfincrimination in the setting of a custodial interrogation, it considers the totality 

of the circumstances. State v. Nyhammer, 197 N.J. 383, 402-03 (2009); State 

v. Dispoto, 189 N.J. 108, 124-35 (2007); State v. O’Neill, 193 N.J. 148, 181 
25

(2007). “Only in the most limited circumstances have we applied a per se rule 

to decide whether a defendant knowingly and voluntarily waived Miranda

rights.” Nyhammer, 197 N.J. at 403 (discussing A.G.D., 178 N.J. at 68; Reed, 

133 N.J. at 261-64). 

In A.G.D., officers investigating the alleged sexual abuse of a minor 

obtained a warrant for the defendant’s arrest but “neither executed the arrest 

warrant nor informed defendant that such a warrant had been issued” before 

interrogating him. 178 N.J. at 59. Reviewing the trial court’s denial of 

defendant’s motion to suppress his statement, we departed from the totality-ofthe-circumstances rule and required police officers to inform a suspect that a 

criminal complaint has been filed or an arrest warrant has been issued before 

interrogating him. Id. at 68-69. As we explained, the “defendant was 

disadvantaged by a lack of critically important information. The government’s 

failure to inform a suspect that a criminal complaint or arrest warrant has been 

filed or issued deprives that person of information indispensable to a knowing 

and intelligent waiver of rights.” Id. at 68. We reasoned that “a criminal 

complaint and arrest warrant signify that a veil of suspicion is about to be 

draped on the person, heightening the risk of criminal liability.” Ibid. Thus, 

“[w]ithout advising the suspect of his true status when he does not otherwise 

know it, the State cannot sustain its burden to the Court’s satisfaction that the 
26

suspect has exercised an informed waiver of rights, regardless of other factors 

that might support his confession’s admission.” Ibid.

In Nyhammer, we made clear that the A.G.D. rule was limited to the 

circumstances of that appeal. 197 N.J. at 404-05. There, we applied the 

totality-of-the-circumstances test, not a bright-line rule as in A.G.D., to a 

setting in which law enforcement officers questioned the defendant about his 

uncle’s role in alleged child abuse without disclosing that he was also a 

suspect. Ibid. Comparing that case to A.G.D., we observed that

[t]he issuance of a criminal complaint and arrest 

warrant by a judge is an objectively verifiable and 

distinctive step, a bright line, when the forces of the 

state stand arrayed against the individual. The 

defendant in A.G.D. was purposely kept in the dark by 

his interlocutors of this indispensable information. 

Unlike the issuance of a criminal complaint or arrest 

warrant, suspect status is not an objectively verifiable 

and discrete fact, but rather an elusive concept that will 

vary depending on subjective considerations of 

different police officers. A suspect to one police officer 

may be a person of interest to another officer. 

Moreover, we emphasized that “our holding [in 

A.G.D.] is not to be construed as altering existing case 

law . . . other than imposing the basic requirement to 

inform an interrogatee that a criminal complaint or 

arrest warrant has been filed or issued.”

[Ibid. (alteration and omission in original) (quoting 

A.G.D., 178 N.J. at 68-69).]

We accordingly concluded that Nyhammer did not “fall within the 

limited category of cases in which we have applied a bright-line rule,” and that 
27

the officers’ failure to disclose to the defendant his status as a suspect before 

interrogating him should instead “be a factor in the totality-of-thecircumstances test.” Id. at 405. 

In Vincenty, police officers failed to inform a suspect of formal charges 

filed against him prior to his interrogation, in which he made selfincriminating statements. 237 N.J. at 126-29. We reiterated A.G.D.’s mandate 

that law enforcement officers “make a simple declaratory statement at the 

outset of an interrogation that informs a defendant of the essence of the 

charges filed against” that defendant. Id. at 134. We viewed the interrogation 

in Vincenty to be “precisely what A.G.D. prohibits,” as it “illustrates that 

suspects cannot knowingly and intelligently determine whether to waive their 

right against self-incrimination if, when making that determination, they have 

not been informed of the charges filed against them.” Ibid. We accordingly 

reversed the trial court’s denial of the defendant’s motion to suppress and 

vacated his conviction. Id. at 136. 

The rule announced in A.G.D. is clear and circumscribed. If a 

complaint-warrant has been filed or an arrest warrant has been issued against a 

suspect whom law enforcement officers seek to interrogate, the officers must 

disclose that fact to the interrogee and inform him in a simple declaratory

statement of the charges filed against him before any interrogation. Id. at 134; 
28

Nyhammer, 197 N.J. at 404-05; A.G.D., 178 N.J. at 68-69. The officers need 

not speculate about additional charges that may later be brought or the 

potential amendment of pending charges. Nyhammer, 197 N.J. at 404-05; 

A.G.D., 178 N.J. at 68-69.

C.

We concur with Judge Susswein that the Appellate Division’s expansion 

of the rule stated in A.G.D. is unwarranted and impractical. See Sims, 466 

N.J. Super. at 379-86 (Susswein, J., concurring and dissenting).1

The rule of A.G.D. mandates disclosure of factual information about 

pending charges that the officer can readily confirm and clearly convey. 

Vincenty, 237 N.J. at 132-35; A.G.D., 178 N.J. at 68-69. A complaint issued 

by either a judge or another judicial officer authorized by N.J.S.A. 2B:12-21, 

based on a finding of probable cause, is “a written statement of the essential 

1 As Judge Susswein observed, neither the Appellate Division majority nor the 

parties have cited any federal or state case law prescribing a rule analogous to

the Appellate Division’s new rule. Id. at 383 n.5. As we noted in Nyhammer, 

“we are not aware of any case in any jurisdiction that commands that a person 

be informed of his suspect status in addition to his Miranda warnings or that 

requires automatic suppression of a statement in the absence of a suspect 

warning.” 197 N.J. at 406; accord United States v. Whiteford, 676 F.3d 348, 

362 (3d Cir. 2012) (observing that the court is aware of no authority “holding 

that a defendant must know of the charges against him to validate a Miranda

waiver); United States v. Clenney, 631 F.3d 658, 668 (4th Cir. 2011) 

(“[Miranda] does not require that the suspect be informed of the charges 

against him.”). 
29

facts constituting the offense charged.” R. 3:2-1(a)(1); see also R. 3:2-3(a), 

(b) (addressing the contents of arrest warrants, which include the “initial 

charge” against the defendant).2

 A complaint-warrant or arrest warrant 

notifies an interrogating police officer that a judge, or other judicial officer, 

has found probable cause with respect to one or more charges, and enables a 

police officer to make the “simple declaratory statement” that A.G.D. requires. 

Vincenty, 237 N.J. at 134.

3

 So informed, the arrestee knows his “true status” 

before waiving his Miranda rights, and may knowingly, intelligently, and 

voluntarily waive those rights. A.G.D., 178 N.J. at 68. 

The principle stated in A.G.D. stands in stark contrast to the Appellate 

Division’s expanded definition of an arrestee’s Miranda rights. See Sims, 466 

N.J. Super. at 361-69. The Appellate Division’s rule relies not on an objective 

statement of the charges pending against the arrestee, but on an officer’s

2 Under N.J.S.A. 2B:12-21(a), “[a]n administrator or deputy administrator of a 

municipal court, authorized by a judge of that court, may exercise the power of 

the municipal court to administer oaths for complaints filed with the municipal 

court and to issue warrants and summonses.” See also R. 3:2-3(a) (“The 

warrant shall be signed by a judicial officer, which for these purposes shall be 

defined as the judge, clerk, deputy clerk, authorized municipal court 

administrator, or authorized deputy municipal court administrator.”).

3 The CD-1 complaint-summons and CD-2 complaint-warrant forms identify 

the original charges and amended charges filed against the defendant. See R.

3:2-1 to -3. 
30

prediction, based on information learned to date in a developing investigation, 

of what charges may be filed. As Judge Susswein observed, even when there 

is probable cause for an arrest, there may be insufficient information about the 

victim’s injuries, the arrestee’s mental state, and other key issues to enable an 

officer to accurately identify the charges. See id. at 381-83 (Susswein, J., 

concurring and dissenting). An officer acting in good faith might inadvertently

misinform an arrestee as to the charges that he will eventually face.4

 We do 

not share the Appellate Division’s conclusion that law enforcement officers 

can resolve any ambiguities or disputes about charging decisions before a 

judicial officer has reviewed the showing of probable cause and issued a

complaint-warrant or arrest warrant. 

Defendant suggests that if we do not adopt the Appellate Division’s new 

rule, law enforcement officers will deliberately delay seeking a complaintwarrant or arrest warrant in order to avoid disclosing to an arrestee the charges 

4 We do not agree with the Appellate Division that the risk of misinformation 

evaporates because the new rule applies only to arrests arising from an 

investigation, not “spontaneous” arrests. See Sims, 466 N.J. Super. at 368 n.6. 

The fact that an investigation has commenced does not mean that police 

officers can be certain about the charges that will be brought against the 

defendant. Nor do we subscribe to the majority’s view that any logistical 

concerns are resolved if the new rule requires that an officer disclose only “the 

charge that, at the time of arrest, the officer had probable cause to believe [the]

defendant committed.” See id. at 368 n.7. Prior to the issuance of a 

complaint-warrant or arrest warrant, an officer cannot definitively determine 

the charges that a given interrogee will face.
31

that he faces. In a case in which there is evidence of such bad-faith conduct on 

the part of law enforcement officers, the trial court should consider such 

conduct as part of the totality-of-the-circumstances test. The potential for 

improper conduct by law enforcement to evade A.G.D. and Vincenty, 

however, does not justify abandoning the core principles of those decisions.

Our dissenting colleagues unaccountably characterize our decision as a 

change in our law on the right-against self-incrimination, venturing so far as to 

suggest that the issue in this case is “whether we will abandon our own 

jurisprudence,” post at ___ (slip op. at 14), and that our ruling creates a 

“shortcut” that will “erode faith in our criminal justice system,” post at ___ 

(slip op. at 9). To the contrary, it is the dissent that presses for a change in our 

jurisprudence: a substantial expansion of the rule stated in A.G.D. and 

Vincenty that confers on suspects broader rights in the interrogation setting 

than those conferred by federal Fifth Amendment jurisprudence and the State 

Constitution. See Vincenty, 237 N.J. at 132-35; A.G.D., 178 N.J. at 68-69. 

Were the dissent’s view to prevail, the rule imposed on law enforcement would 

not comport with our prior precedent, but starkly depart from that precedent 

and from the law of every other jurisdiction. 

In short, we share Judge Susswein’s reservations about the Appellate 

Division’s new rule requiring officers to tell an arrestee, not subject to a 
32

complaint-warrant or arrest warrant, what charges he faces before interrogating 

him. We decline to adopt that rule. 

D.

Affording to the trial court’s findings of fact the deference which our 

law requires, we affirm the court’s application of the totality-of-thecircumstances standard to deny defendant’s motion to suppress his statement. 

That standard requires that we “consider such factors as the defendant’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.’” 

Nyhammer, 197 N.J. at 402 (quoting Presha, 163 N.J. at 313). The 

interrogee’s “previous encounters with the law” may also be a relevant factor. 

Presha, 163 N.J. at 313 (quoting State v. Miller, 76 N.J. 392, 402 (1978)). In 

short, “the root of the inquiry is whether a suspect’s will has been overborne 

by police conduct.” Ibid. 

As the trial court noted and the record makes clear, defendant was read 

his Miranda rights and waived those rights verbally and in writing. The court 

found no evidence that before or during the two-and-a-half-hour interrogation, 

the detectives threatened defendant, subjected him to mental exhaustion or 

physical stress, ignored a request to leave, or acted in any manner to overbear 
33

his will. As the trial court noted, defendant, who had prior experience with the 

criminal justice system, repeatedly denied involvement in the shooting during 

his interrogation. 

We find the trial court’s findings to be supported by sufficient credible 

evidence in the record. We concur with the trial court that the totality of the 

circumstances warranted the denial of defendant’s motion to suppress his April 

14, 2014 statement to police, and we accordingly reverse the Appellate 

Division’s determination on that issue. 

IV.

A.

We next consider the trial court’s decision to admit into evidence P.V.’s 

testimony at the Wade/Henderson hearing at defendant’s trial. 

Generally, we “review evidentiary rulings under a deferential standard 

and will ‘uphold [the trial court’s] determinations absent a showing of an 

abuse of discretion.’” State v. Trinidad, 241 N.J. 425, 448 (2020) (alteration 

in original) (quoting State v. Scott, 229 N.J. 469, 479 (2017)). We entrust to 

trial judges “‘a wide latitude of judgment,’” and, therefore, the trial court’s 

evidentiary ruling “will not be upset unless . . . there has been a clear error of 

judgment.” State v. Koedatich, 112 N.J. 225, 313 (1988) (quoting State v. 

Balthrop, 92 N.J. 542, 548 (1983) (Schreiber, J., dissenting)). We review de 
34

novo the court’s legal determinations, including its ruling that the admission at 

trial of P.V.’s testimony at the Wade/Henderson hearing did not violate 

defendant’s confrontation rights. See State v. Wilson, 227 N.J. 534, 544 

(2017).

The Appellate Division reversed the trial court’s evidentiary 

determination on two grounds: that P.V.’s prior testimony did not meet the 

requirements of N.J.R.E. 804(b)(1)(A), and that the admission of that 

testimony violated defendant’s confrontation rights. We consider each issue in 

turn. 

B.

1.

N.J.R.E. 801(c) defines hearsay as a statement that “(1) the declarant 

does not make while testifying at the current trial or hearing; and (2) a party 

offers in evidence to prove the truth of the matter asserted in the statement.”

“Hearsay is generally inadmissible unless an exception applies.” State v. 

Williamson, 246 N.J. 185, 199 (2021); accord N.J.R.E. 802. 

Subject to the notice requirements of N.J.R.E. 807, N.J.R.E. 

804(b)(1)(A) authorizes the admission of an unavailable declarant’s testimony 

from a prior proceeding if the testimony 

(i) was given by a witness at a prior trial of the same or 

a different matter, or in a hearing or deposition taken in 
35

compliance with law in the same or another proceeding; 

and (ii) is now offered against a party who had an 

opportunity and similar motive in the prior trial, 

hearing or deposition to develop the testimony by 

examination or cross-examination.

[N.J.R.E. 804(b)(1)(A).]

First, N.J.R.E. 804(b)(1)(A) requires that the witness who gave the prior 

testimony be “unavailable,” as defined by N.J.R.E. 804(a). N.J.R.E. 804(a)

identifies four settings in which a witness is declared “unavailable” for 

purposes of N.J.R.E. 804, “[e]xcept when the declarant’s unavailability has 

been procured or wrongfully caused by the proponent of declarant’s statement 

for the purpose of preventing declarant from attending or testifying.” In one of 

those settings, a declarant who “persists in refusing to testify concerning the 

subject matter of the statement despite an order of the court to do so” is 

deemed “unavailable” to testify at trial. N.J.R.E. 804(a)(2); see also Biunno, 

Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 804(a)

(2022) (“A declarant is ‘unavailable’ under N.J.R.E. 804(a)(2) if they refuse to 

testify despite a court order to do so.”); State v. Cabbell, 207 N.J. 311, 336 (2011) 

(“[A] witness is effectively absent from trial and does not ‘appear’ for crossexamination if he invokes his Fifth Amendment privilege in response to every 

question.”). 
36

Second, N.J.R.E. 804(b)(1)(A) requires that the party against whom the 

prior testimony is offered had an “opportunity” in the prior trial, hearing, or 

deposition “to develop the testimony by examination or cross-examination.” 

The 1991 Supreme Court Committee Comment to this rule makes clear that the

term, “develop the testimony by examination or cross-examination” is 

“intended to include direct and redirect examination as well as crossexamination as in Fed. R. Evid. 804(b)(1).” Official Comment to N.J.R.E. 

804(b)(1)(A); see, e.g., United States v. Salim, 855 F.2d 944, 953-54 (2d Cir.

1988) (observing that, under Fed. R. Evid. 804(b)(1), a defendant is entitled to 

“an opportunity for effective cross-examination, not cross-examination that is 

effective in whatever way, and to whatever extent, the defense might wish”

(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985))). 

Finally, N.J.R.E. 804(b)(1)(A) mandates that the party against whom the 

prior testimony is offered has a “similar motive in the prior trial, hearing, or 

deposition to develop the testimony by examination or cross-examination.” 

Construing Fed. R. Evid. 804(b)(1), which is closely analogous to N.J.R.E.

804(b)(1)(A),

5 the Second Circuit has held that

5 Fed. R. Evid. 804(b)(1) authorizes the admission of an unavailable 

declarant’s prior testimony that

(A) was given as a witness at a trial, hearing, or lawful 

deposition, whether given during the current 
37

[t]he proper approach . . . in assessing similarity of 

motive under Rule 804(b)(1) must consider whether the 

party resisting the offered testimony at a pending 

proceeding had at a prior proceeding an interest of 

substantially similar intensity to prove (or disprove) the 

same side of a substantially similar issue. The nature 

of the two proceedings -- both what is at stake and the 

applicable burden of proof -- and, to a lesser extent, the 

cross-examination at the prior proceeding -- both what 

was undertaken and what was available but forgone --

will be relevant though not conclusive on the ultimate 

issue of similarity of motive. 

[United States v. DiNapoli, 8 F.3d 909, 914-15 (2d Cir. 

1993) (en banc).] 

As the Ninth Circuit has observed, “[t]he ‘similar motive’ requirement is 

inherently factual and depends, at least in part, on the operative facts and legal 

issues and on the context of the proceeding.” United States v. Geiger, 263 

F.3d 1034, 1038 (9th Cir. 2001) (citing United States v. Salerno, 505 U.S. 317, 

324-25 (1992)); see also United States v. Feldman, 761 F.2d 380, 385 (7th Cir. 

1985) (“[A] court must evaluate not only the similarity of the issues, but also 

the purpose for which the testimony is given.”). 

The State, as the proponent of the evidence, bears the burden to 

demonstrate both that the declarant is unavailable and that, at the prior trial, 

proceeding or a different one; and (B) is now offered 

against a party who had -- or, in a civil case, whose 

predecessor in interest had -- an opportunity and similar 

motive to develop it by direct, cross-, or redirect 

examination. 
38

hearing, or deposition, the defendant had an opportunity and similar motive to 

cross-examine the declarant. See, e.g., State v. Maben, 132 N.J. 487, 500 

(1993) (recognizing that the State is required “to prove unavailability and a 

good-faith effort to procure the witness before allowing the introduction of 

hearsay testimony”).

2.

We view the trial court’s admission of P.V.’s prior testimony to 

constitute a proper application of N.J.R.E. 804(b)(1)(A).

First, the trial court correctly concluded that at the time of defendant’s 

trial, P.V. was a declarant who “persists in refusing to testify concerning the 

subject matter of the statement despite an order of the court to do so,” and was 

therefore “unavailable” under N.J.R.E. 804(a)(2). P.V. confirmed in a hearing 

outside the jury’s presence during trial that he would invoke his right against 

self-incrimination under the Fifth Amendment if called as a witness. P.V. 

maintained that position despite the State’s offer of immunity pursuant to 

N.J.S.A. 2A:81-17.3 and the trial court’s order that he testify. Accordingly, 

the State met the “unavailability” requirement of N.J.R.E. 804(a) under 

subsection (a)(2). 
39

Second, the Wade/Henderson hearing at which P.V. testified was a 

“hearing” in the “same . . . proceeding” as defendant’s trial within the meaning 

of N.J.R.E. 804(b)(1)(A). 

Third, the State demonstrated that at the Wade/Henderson hearing, 

defendant had “an opportunity . . . to develop the testimony by examination or 

cross-examination.” N.J.R.E. 804(b)(1)(A). Indeed, when cross-examined by 

defense counsel, P.V. claimed not to recall the April 9, 2014 shooting. He

suggested that some of the responses attributed to him in the transcript of his 

statement constituted his mother’s comments, not his. P.V. implied that his 

statement to police was affected by the medication that he was taking. He 

stated that he did not have a close relationship with defendant or his brother. 

P.V. denied any recollection of identifying defendant as the man who shot him. 

He expressed fear of the prosecutor’s office and the police, and confirmed his 

prior convictions and prison sentences. In short, defense counsel not only had 

the opportunity to cross-examine P.V., as N.J.R.E. 804(b)(1)(A) requires, but

thoroughly and skillfully questioned P.V. The jury had the benefit of that 

cross-examination when it considered P.V.’s Wade/Henderson hearing 

testimony and assessed his credibility. 

Fourth, the State also demonstrated that defendant had a “similar 

motive” at the Wade/Henderson hearing “to develop the testimony by 
40

examination or cross-examination.” N.J.R.E. 804(b)(1)(A). At the hearing, as

at trial, defendant’s motive was to impeach P.V.’s credibility, underscore 

P.V.’s claimed lack of recollection, suggest that police coercion was a factor in 

P.V.’s identification of defendant, and attack P.V.’s statement as unreliable. 

In short, defendant’s objectives in the two settings were similar, if not 

identical. 

Accordingly, the trial court properly ruled that P.V.’s prior testimony 

was admissible pursuant to N.J.R.E. 804(b)(1)(A). 

C.

1.

We next consider defendant’s argument that the introduction of P.V.’s 

statement violated his rights under the Confrontation Clause. 

“In all criminal prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him.” U.S. Const. amend. VI; see also

N.J. Const. art. I, ¶ 10 (“In all criminal prosecutions the accused shall have the 

right . . . to be confronted with the witnesses against him . . . .”). 

Our confrontation jurisprudence “traditionally has relied on federal case 

law to ensure that the two provisions provide equivalent protection.” State v. 

Roach, 219 N.J. 58, 74 (2014); see also State v. Miller, 170 N.J. 417, 425 

(2002) (explaining that “[t]he New Jersey Constitution contains a cognate 
41

guarantee” to that of the Sixth Amendment); Cabbell, 207 N.J. at 328 n.11 

(noting that for purposes of the Court’s discussion in that case, “references to

the Sixth Amendment are interchangeable with Article I, Paragraph 10 of our 

State Constitution”).

In Crawford v. Washington, the United States Supreme Court held that 

the framers of the Constitution intended the Confrontation Clause to bar the 

admission of “testimonial statements of a witness who did not appear at trial 

unless [the declarant is] unavailable to testify, and the defendant had . . . a 

prior opportunity for cross-examination.” 541 U.S. 36, 53-54 (2004). 

The State need not demonstrate that the defendant undermined the 

credibility of the unavailable witness at the prior proceeding to satisfy the 

constitutional test; as the Supreme Court has noted, “successful crossexamination is not the constitutional guarantee.” United States v. Owens, 484 

U.S. 554, 560 (1988); accord Cabbell, 207 N.J. at 337. Instead, “the

Confrontation Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to 

whatever extent, the defense might wish.” Fensterer, 474 U.S. at 20. 

Although “Crawford does not provide a specific standard for determining 

whether a defendant had an opportunity to cross-examine a witness, . . . it 
42

does suggest that the prior opportunity must be adequate.” Rolan v. Coleman, 

680 F.3d 311, 327 (3d Cir. 2012) (citing Crawford, 541 U.S. at 57). 

Federal courts have held that a witness’s testimony at a preliminary 

hearing, such as the Wade/Henderson hearing at issue here, can provide the 

constitutionally mandated opportunity to cross-examine. See Gibbs v. 

Covello, 996 F.3d 596, 601 (9th Cir.) (holding that the government did not 

offend the Confrontation Clause when it introduced the preliminary hearing 

testimony of a witness unavailable at trial as long as the defendant had a prior 

opportunity to cross-examine), cert. denied, 142 S. Ct. 453 (2021); United 

States v. Ralston, 973 F.3d 896, 911 (8th Cir. 2020) (affirming the district 

court’s decision rejecting a confrontation challenge to an unavailable witness’s 

testimony at a preliminary hearing); Williams v. Bauman, 759 F.3d 630, 634-

35 (6th Cir. 2014) (holding that the defendant’s confrontation rights were not 

violated by the admission of preliminary hearing testimony of a witness who 

died before trial); Rolan, 680 F.3d at 326-37 (affirming the district court’s 

holding that the defendant had an opportunity to cross-examine a witness at a 

prior trial and preliminary hearing that satisfied the Confrontation Clause). 

Moreover, the defendant may be deemed to have had a prior opportunity 

for cross-examination even if the witness denies recollection of relevant 

events. The Supreme Court has noted that the Confrontation Clause provides
43

“no guarantee that every witness called by the prosecution will refrain from 

giving testimony that is marred by forgetfulness, confusion, or evasion,” but

rather “is generally satisfied when the defense is given a full and fair 

opportunity to probe and expose these infirmities through cross-examination, 

thereby calling to the attention of the factfinder the reasons for giving scant 

weight to the witness’ testimony.” Owens, 484 U.S. at 558 (quoting Fensterer, 

474 U.S. at 21-22); accord State v. Brown, 138 N.J. 481, 543 (1994) (“[A]

witness’s feigned lack of recollection . . . [does] not rise to the level of 

denying a defendant’s federal and state constitutional right to confront 

witnesses.”). As Justice Harlan has observed, 

The fact that the witness, though physically available, 

cannot recall either the underlying events that are the 

subject of an extra-judicial statement or previous 

testimony or recollect the circumstances under which 

the statement was given, does not have Sixth 

Amendment consequence. The prosecution has no less 

fulfilled its obligation simply because a witness has a 

lapse of memory. The witness is, in my view, available.

To the extent that the witness is, in a practical sense, 

unavailable for cross-examination on the relevant facts, 

. . . I think confrontation is nonetheless satisfied. 

[California v. Green, 399 U.S. 149, 188-89 (1970) 

(Harlan, J., concurring).] 

In Owens, the Supreme Court held that “[i]t is sufficient [under the 

Confrontation Clause] that the defendant has the opportunity to bring out such 
44

matters as the witness’ bias, his lack of care and attentiveness, his poor 

eyesight, and even (what is often a prime objective of cross-examination . . . )

the very fact that he has a bad memory.” 484 U.S. at 559 (citation omitted). 

Moreover, “[t]he weapons available to impugn the witness’ statement when 

memory loss is asserted will of course not always achieve success, but 

successful cross-examination is not the constitutional guarantee.” Id. at 560; 

see also United States v. Milton, 8 F.3d 39, 47 (D.C. Cir. 1993) (“When a 

witness has forgotten the basis for and the giving of testimony under oath in an 

earlier proceeding and that testimony is then introduced into evidence, defense 

questioning, though impaired, is not futile for the reasons given in Owens.”). 

Accordingly, the Confrontation Clause is not violated by the admission 

of an unavailable witness’s prior testimony simply because that witness claims 

that he does not recall the event at issue. Owens, 484 U.S. at 559.

2.

We agree with the trial court that P.V.’s Wade/Henderson hearing 

testimony met the requirements of the Confrontation Clause. 

First, just as P.V. was an “unavailable” declarant as defined in N.J.R.E.

804(a)(2), he was “unavailable to testify” at trial for purposes of the 

Confrontation Clause. See Crawford, 541 U.S. at 53. 
45

Second, defendant had the adequate “prior opportunity for crossexamination” envisioned by the Supreme Court’s confrontation jurisprudence. 

See ibid.; Owens, 484 U.S. at 558. 

We disagree with the Appellate Division’s conclusion that the trial 

court’s admission of P.V.’s Wade/Henderson hearing testimony violated the 

Confrontation Clause because “[d]efendant did not have the opportunity to 

cross-examine [P.V.] about his statement to police -- either at the pretrial 

hearing or in front of the jury,” and had “nothing to cross-examine [P.V.] 

about at the Rule 104 hearing.” Sims, 466 N.J. Super. at 377-78. 

To the contrary, at the Wade/Henderson hearing, defendant had the 

opportunity to attack the credibility of P.V.’s statement identifying defendant 

as the shooter. Indeed, defendant elicited P.V.’s testimony disclaiming 

recollection of any statement, implying that comments attributed to him were 

his mother’s, and inferring that he acted out of fear of some of the 

investigating officers. By virtue of the direct and cross-examination at the 

Wade/Henderson hearing, the jury was fully informed that P.V. denied any 

recollection of the shooting or his statement to police. See Owens, 484 U.S. at 

558 (noting that the Confrontation Clause is satisfied when the defendant has 

the “full and fair opportunity to probe and expose” the witness’s claim not to 
46

recall critical events, thus underscoring for the jury the reasons why it should 

give his testimony little or no weight (quoting Fensterer, 474 U.S. at 21-22)). 

Nor do we subscribe to the Appellate Division’s view that defendant’s 

rights were violated because he “never had the opportunity to cross-examine

the victim before the factfinder that was to decide his fate.” Sims, 466 N.J. 

Super. at 378. If the Confrontation Clause required every declarant to appear 

before the jury for cross-examination, it would prohibit the admission of an 

unavailable witness’s prior testimony as an exception to the hearsay rule, 

which it clearly does not. As the Supreme Court has observed, it has “never 

insisted on an actual face-to-face encounter at trial in every instance in which 

testimony is admitted against a defendant” and has instead “repeatedly held 

that the Clause permits, where necessary, the admission of certain hearsay 

statements against a defendant despite the defendant’s inability to confront the 

declarant at trial.” Maryland v. Craig, 497 U.S. 836, 847-48 (1990).

Finally, we do not share the Appellate Division’s view that the trial court 

improperly admitted P.V.’s April 13, 2014 statement to police at the hospital 

through the State’s questioning of P.V. at the Wade/Henderson hearing. Sims, 

466 N.J. Super. at 371-72, 376-78. P.V.’s April 13, 2014 statement was not

offered into evidence -- let alone admitted into evidence -- at defendant’s 
47

trial.6 No recording or transcript of that statement was presented to the jury. 

When the trial court overruled defendant’s evidentiary and constitutional 

objections to the admission of P.V.’s Wade/Henderson testimony, it was not 

asked to exclude any portion of that testimony on the ground that questions 

posed to P.V. revealed the contents of his prior statement to police. Neither 

the Appellate Division nor defendant cited authority that would require the 

exclusion of the prior testimony on that ground.7

 

6 Our dissenting colleagues contend that P.V.’s statement to police in the 

hospital was admitted into evidence at trial. Post at ___ n.5 (slip op. at 16 

n.5). As the record reveals, that is simply incorrect. Immediately after the 

trial court told the jury that it would hear P.V.’s statement from “a prior 

proceeding” and that it may consider it as substantive evidence, the State 

presented P.V.’s testimony at the Wade/Henderson hearing during Weisbrot’s 

direct examination. The trial court’s comments clearly referred to P.V.’s prior 

testimony, not the hospital statement. The State made no attempt to introduce 

the transcript of P.V.’s hospital statement at trial into evidence, and the jury 

was not presented with any portion of that statement, other than in the 

prosecutor’s reading of questions posed to P.V. during his testimony at the 

Wade/Henderson hearing. 

7

 The decisions by this Court cited by the Appellate Division on this point do 

not suggest that prior testimony admissible under N.J.R.E. 804(b)(1) violates 

the Confrontation Clause because questions posed to the witness in the prior 

trial, hearing, or deposition incorporated the contents of an out-of-court 

statement. See generally Sims, 466 N.J. Super. at 375-78. In Cabbell, we held 

that the defendant’s confrontation rights were violated because the trial court 

admitted the out-of-court statement of a witness who was available at trial and 

subject to direct examination but did not provide the defendant the opportunity 

to cross-examine the witness. 207 N.J. at 329-33. In State v. Coder, we held 

that the admission of an unavailable child witness’s out-of-court statement 

pursuant to the “tender years” exception to the hearsay rule, N.J.R.E. 

803(c)(27), did not violate the Confrontation Clause. 198 N.J. 451, 467-70 
48

Trial courts should be alert to the potential for the improper admission of

hearsay within hearsay and for confrontation issues that may arise in such 

settings. See N.J.R.E. 805 (“Hearsay within hearsay is not excluded by the

rule against hearsay if each part of the combined statements conforms with an

exception to the rule.”). In this case, we find no such error.

Accordingly, we reverse the Appellate Division’s determination that the

admission of P.V.’s Wade/Henderson hearing testimony at trial violated the

hearsay rule and offended the Confrontation Clause.

V.

The judgment of the Appellate Division is reversed, and the matter is

remanded to the appellate court for its review of the prosecutorial misconduct 

and sentencing issues raised by defendant on appeal. 

CHIEF JUSTICE RABNER and JUSTICE SOLOMON join in JUSTICE 

PATTERSON’s opinion. JUSTICE ALBIN filed a dissent, in which JUSTICE 

PIERRE-LOUIS joins. 

(2009). Finally, in Nyhammer, we affirmed the admission of a child victim’s 

out-of-court statement because the defendant had the opportunity to crossexamine the victim at trial and elected not to exercise that right. 197 N.J. at 

389.
1 

State of New Jersey, 

Plaintiff-Appellant, 

v. 

Anthony Sims, Jr., 

Defendant-Respondent. 

JUSTICE ALBIN, dissenting. 

 In a free society that values individual liberty, no person should be taken 

from his home or off the streets by the police, placed in handcuffs and kept in 

custody, and not told the reason for his arrest. Most people will be surprised 

to learn that they can be detained without explanation for a period of hours, if 

not longer, as the majority now holds. 

Four law enforcement officers arrested Anthony Sims, but not one told 

him why he was under arrest -- not even when he asked for an explanation. 

Sims was handcuffed, placed in a police vehicle, and transported to a satellite 

office of the Monmouth County Prosecutor’s Office -- not knowing why he 

was in custody. In that satellite office, the interrogating officers advised Sims 
2 

of his Miranda1

 rights and elicited from him a waiver of his rights without 

revealing to him that he was in custody for the attempted murder of P.V. 

Concealing from Sims the charges that he was facing did not comport with the 

guarantees afforded to the accused under our state law against selfincrimination or our state’s jurisprudence. 

When police officers make an arrest based on probable cause, they must 

have a reason for doing so -- they must have determined that the person 

arrested violated a specific law. That being the case, the officers should have 

no difficulty telling the person the charge or charges that they believe justify 

the defendant’s detention. Even when a complaint-warrant has not been 

secured in advance, no interrogation should proceed until the accused is told 

the charges for which he is then held in custody. Without that critical 

information, a defendant cannot intelligently decide whether to waive his right 

against self-incrimination. That other charges may develop during the 

investigation is no excuse for officers to withhold the specific charges that 

prompted a defendant’s arrest. 

I therefore would affirm the Appellate Division’s suppression of Sims’s 

statement. 

1

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

 I would also affirm the Appellate Division’s suppression of the out-ofcourt statements made by P.V. incriminating Sims. P.V. testified at the Wade2

hearing that he did not recall making those statements against Sims and later 

refused to testify before the jury, even when offered immunity and threatened 

with contempt. Sims therefore was denied the opportunity to cross-examine 

P.V. at trial. Sims’s cross-examination of P.V. at the Wade hearing was not an 

adequate substitute for his Sixth Amendment confrontation rights at trial. At 

the Wade hearing, Sims did not have a similar opportunity or motive to crossexamine P.V. as he would have had at trial. 

 I would reverse Sims’s conviction, substantially for the reasons given by 

the Appellate Division. Accordingly, I respectfully dissent. 

I. 

New Jersey’s privilege against self-incrimination is codified in our 

statutory law, N.J.S.A. 2A:84A-19, and rules of evidence, N.J.R.E. 503, and 

“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) (citing State v. Reed, 133 N.J. 237, 250 

(1993)). Indeed, “[w]e have treated our state privilege as though it were of 

2

 United States v. Wade, 388 U.S. 218 (1967). 
4 

constitutional magnitude.” Ibid. In our case law, we have highlighted “[t]he 

textual differences between the plain language of our state privilege and the 

Fifth Amendment” and have found that our state law privilege “offers broader 

protection than its Fifth Amendment federal counterpart.”3

 Id. at 176-77 

(citing State v. Muhammad, 182 N.J. 551, 568 (2005)). That is a point largely 

ignored by the majority. 

The issue is not whether we should adhere to federal jurisprudence but 

whether we will abandon our own jurisprudence. If our way is lighted by our 

jurisprudence, then we should find that, before the start of an interrogation, the 

failure to advise a defendant of the specific charges that were the basis for his 

arrest is a violation of our state law against self-incrimination. In suppressing 

Sims’s statement, the Appellate Division did nothing more than follow the 

inescapable logic of this Court’s case law. 

In State v. A.G.D., a detective obtained a warrant to arrest the defendant 

for the sexual abuse of a child. 178 N.J. 56, 59-60 (2003). The detective and 

another detective visited the defendant’s home and explained to him that they 

3

 N.J.S.A. 2A:84A-19 and N.J.R.E. 503, provide in identical language that 

“every natural person has a right to refuse to disclose in an action or to a 

police officer or other official any matter that will incriminate him or expose 

him to a penalty or a forfeiture of his estate.” In contrast, the Fifth 

Amendment to the United States Constitution provides that “[n]o person . . . 

shall be compelled in any criminal case to be a witness against himself.” 
5 

wanted to question him about sexual abuse allegations, and he accompanied 

them to the prosecutor’s office. Ibid. The detectives kept from the defendant 

the arrest warrant they had in hand and did not advise him he was under arrest. 

Id. at 59. Instead, in the usual course, the detectives informed the defendant of 

his Miranda rights, and the defendant waived those rights without knowing his 

true predicament. Id. at 60. During the interrogation that followed, the 

defendant incriminated himself. Ibid. 

We found that, in securing a waiver of rights from the defendant, the 

detectives deprived him of “critically important information” -- knowledge of 

the criminal complaint filed against him and of the arrest warrant in the 

detective’s pocket. Id. at 68. We held that the detectives had concealed 

“information indispensable to a knowing and intelligent waiver of rights.” 

Ibid. We concluded that “[w]ithout advising the [defendant] of his true 

status,” the State did not satisfy its burden of proving that he “exercised an 

informed waiver of rights,” and accordingly we suppressed his incriminating 

statements. Id. at 68-69. 

In deciding A.G.D., we relied on “the New Jersey common law privilege 

against self-incrimination[, which] affords greater protection to an individual 

than that accorded under the federal privilege.” Id. at 67 (quoting In re Grand 

Jury Proc. of Guarino, 104 N.J. 218, 229 (1986)). We stated that our Court has 
6 

“actively embraced the opportunity to move beyond the guidelines of federal 

directives in pursuit of an unyielding commitment to ensure the proper 

admissibility of confessions.” Ibid. (quoting Reed, 133 N.J. at 252). 

In State v. Vincenty, we elaborated on A.G.D., stating that our decision 

in that case “calls for law enforcement officials to make a simple declaratory 

statement at the outset of an interrogation that informs a defendant of the 

essence of the charges filed against him.” 237 N.J. 122, 134 (2019). “That 

information,” we added, “should not be woven into accusatory questions posed 

during the interview.” Ibid. The defendant in Vincenty, as in A.G.D., was 

“[u]naware that charges had been filed against him” in a criminal complaint 

when he waived his right against self-incrimination. Id. at 128-29, 134. We 

pointedly stated in Vincenty that detectives “failed to inform [the defendant] of 

the specific criminal charges filed against him” and withheld from him 

“critically important information.” Id. at 135. Because the detectives 

“deprived [the defendant] of the ability to knowingly and voluntarily waive the 

right against self-incrimination,” we suppressed his statement. Id. at 135-36. 

The only distinction between A.G.D. and Vincenty and this case is that, 

here, the detectives had probable cause to charge Sims with attempted murder 

but did not bother to secure a judicially authorized criminal complaint and 

arrest warrant before taking Sims into custody and questioning him. The 
7 

detectives knew why they had arrested Sims, but Sims did not. The detectives 

purposely withheld from Sims “critically important information” -- 

“information indispensable to a knowing and intelligent waiver of rights.” 

A.G.D., 178 N.J. at 68; see also Vincenty, 237 N.J. at 135. 

This case is unlike State v. Nyhammer, where the defendant was merely 

a suspect -- and not under arrest -- before the police began questioning him. 

197 N.J. 383, 404-05 (2009). There, we held that the police did not have to 

disclose their motives to the defendant before commencing the interrogation. 

Ibid. In Nyhammer, we drew the line for disclosure at arrest because an arrest 

is “an objectively verifiable and distinctive step, a bright line, when the forces 

of the state stand arrayed against the individual.” Id. at 404. Suspect status, 

we noted, is “an elusive concept that will vary depending on subjective 

considerations of different police officers.” Id. at 405. 

Sims was more than a suspect. He was under arrest. He was the 

accused. The forces of the State were already arrayed against him. The 

detectives were going to charge Sims with attempted murder whether or not he 

submitted to questioning. Surely, the detectives’ timing of when to obtain the 

arrest warrant and criminal complaint should not be the decisive factor in 

determining whether the accused is provided the critical information necessary 

to make an informed decision whether to waive his rights. 
8 

I agree with the majority that “officers need not speculate about 

additional charges that may later be brought or the potential amendment of 

pending charges” when interrogating a defendant. Ante at ___ (slip op. at 28) 

(citing Nyhammer, 197 N.J. at 404-05; A.G.D., 178 N.J. at 68-69). In my 

view, the officers simply must act in good faith, be honest with the defendant, 

and advise him of the charge or charges for which he was arrested. In this 

case, no one seems to dispute that the detectives arrested defendant for 

attempted murder. The detectives denied Sims critical information necessary 

to make an informed decision whether to waive his rights. 

The majority opinion encourages law enforcement officers to game the 

system. Officers will now know that a delay in the filing of the criminal 

complaint will allow them to withhold from the arrested defendant the true 

nature of the charges before the interrogation begins, as occurred here. The 

State should be made to walk square corners. The shortcut the majority 

permits, allowing the police to arrest a person and keep him in the dark about 

the reasons for his arrest, will erode faith in our criminal justice system. 

The State failed to prove the voluntariness of Sims’s statement beyond a 

reasonable doubt as required under our law. See State v. Burris, 145 N.J. 509, 

534 (1996). Accordingly, the Appellate Division correctly ruled that his 

statement should have been suppressed and not admitted at trial. 
9 

II. 

Four days after he was shot multiple times in his grandmother’s 

driveway, P.V. gave a signed statement to the detectives in the hospital where 

he was recovering from his wounds. In the statement, P.V. named Sims, 

whom he had known for more than ten years, as the shooter and identified a 

photograph of Sims. 

At the Wade hearing, P.V. denied having any recollection of the 

shooting or of making any of the statements recorded by the police. P.V. then 

refused to testify at trial, despite offers of immunity. The jury was denied the 

opportunity to see P.V. on the stand and to assess his credibility firsthand. 

The Sixth Amendment’s Confrontation Clause provides that “[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . to be confronted 

with the witnesses against him.” U.S. Const. amend. VI. “A witness’s 

testimony against a defendant is thus inadmissible unless the witness appears 

at trial or, if the witness is unavailable, the defendant had a prior opportunity 

for cross-examination.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 

(2009) (citing Crawford v. Washington, 541 U.S. 36, 54 (2004)). A prior 

opportunity for cross-examination means that the defendant must have had the 

opportunity to conduct a meaningful cross-examination. See United States v. 

Owens, 484 U.S. 554, 561-62 (1988). Even when a witness takes the stand in 
10 

a criminal trial, a defendant’s confrontation rights are not satisfied unless he is 

given “a full and fair opportunity to probe and expose [the] infirmities” of the 

witness’s testimony. See id. at 558 (quoting Delaware v. Fensterer, 474 U.S. 

15, 22 (1985)). 

A witness’s claim of lack of recollection will not bar the hearsay 

admission of some out-of-court statements, provided the witness testifies at 

trial, permitting the jury to gauge the witness’s credibility. Ibid. However, 

“[i]n that situation . . . the traditional protections of the oath, crossexamination, and opportunity for the jury to observe the witness’s demeanor 

satisfy the constitutional requirements.” Id. at 560 (citing California v. Green, 

399 U.S. 149, 158-61 (1970)). 

For example, in Owens, from his hospital room, the victim-witness 

provided officers a statement identifying Owens as the perpetrator of an 

assault against him. Id. at 556. At trial, however, the witness could no longer 

recall seeing his assailant. Ibid. The Court found the cross-examination of the 

witness before the jury to be sufficient for Confrontation Clause purposes 

because, in that scenario, the jury had the opportunity to “be persuaded that 

[the witness’s] opinion [was] as unreliable as his memory.” Id. at 558 (quoting 

Fensterer, 474 U.S. at 19). 
11 

Similarly, under the New Jersey exception to the hearsay rule, a 

witness’s prior inconsistent statements are admissible to allow the jury to 

determine whether “the witness is lying, and to give the jury an alternative 

account of the events that it may choose to use as substantive evidence rather 

than the account offered by the witness. The jury, however, must observe the 

witness and make a decision about which account is true.” State v. Brown, 

138 N.J. 481, 544 (1994). 

Under the Confrontation Clause and our evidence rules, P.V.’s 

statements to the detectives at the hospital were admissible at the Wade 

hearing, despite his claimed lack of recollection. See Owens, 484 U.S. at 560-

62; Brown, 138 N.J. at 542-43. However, unlike in Owens and Brown, here 

P.V. did not appear at trial. The jury did not have the opportunity to hear from 

or scrutinize P.V. on the witness stand to determine whether his lack of 

memory at the Wade hearing was feigned or real or whether he gave an honest 

or accurate account of his identification of Sims as his assailant at the hospital. 

At the time of Sims’s trial, P.V. was awaiting trial for murdering Sims’s 

brother and refused to testify. P.V.’s hearsay statement at the hospital was 

laundered through the Wade hearing intact and presented fresh at trial but 

without a witness to confront. Under the circumstances in this case, the 

damning hearsay statement was too many steps removed from its source to be 
12 

credited for Confrontation Clause purposes. See Preston v. Superintendent 

Graterford SCI, 902 F.3d 365, 379 (3d Cir. 2018) (“[T]he use of a witness’s 

prior statement against a criminal defendant violates the defendant’s 

Confrontation Clause rights when the witness refuses to answer any 

substantive questions on cross-examination.”). The bootstrapping of the 

hearsay statement deprived Sims of his right of cross-examination at trial. 

Critical to that analysis is that Sims did not have the “prior opportunity” 

to meaningfully cross-examine P.V. at the Wade hearing in the way he would 

have if P.V. had testified at trial. 

A Wade hearing has a limited purpose. It “is to examine police 

procedures surrounding an out-of-court identification of the defendant for a 

taint of suggestiveness,” Lynn v. Bliden, 443 F.3d 238, 249 (2d Cir. 2006), 

and, if the procedures were suggestive, to ascertain the identification’s 

reliability, State v. Henderson, 208 N.J. 208, 238 (2011). It “is not to 

determine whether there are ‘inconsistent identifications’ nor to obtain more 

fodder for cross-examination.” Lynn, 443 F.3d at 249. Our judges understand 

the limitations of a Wade hearing; it is not an occasion for attorneys to 

rummage for discovery that might be useful at trial for impeachment purposes. 

Judges corral attorneys who wander afield. Moreover, attorneys ordinarily do 

not cross-examine a witness at a Wade hearing with the expectation that the 
13 

witness, when called to the stand at trial, will refuse to testify, disregarding a 

grant of immunity and the threat of a contempt citation. In short, the 

permissible parameters of cross-examination at a Wade hearing and at a trial 

are not co-extensive. Sims’s attorney made clear that his cross-examination of 

P.V. at trial would have been far more extensive than the one at the Wade 

hearing. 

Our evidence rules do not permit an unavailable witness’s prior 

testimony to be used against a defendant unless the defendant “had an 

opportunity and similar motive in the prior trial, hearing or deposition to 

develop the testimony by examination or cross-examination.” N.J.R.E. 

804(b)(1)(A). For Confrontation Clause purposes as well, a defendant who 

does not have a similar opportunity or motive to cross-examine the witness at 

an earlier hearing will not have had the meaningful opportunity to develop the 

testimony for trial. 

That is what occurred here. Sims did not have the same motive or 

opportunity to cross-examine P.V. at the Wade hearing as he would have at 

trial had P.V. testified. Sims therefore was denied the meaningful opportunity 

for cross-examination guaranteed by the Sixth Amendment’s Confrontation 

Clause. See Owens, 484 U.S. at 559-602. 
14 

Last, none of the circuit cases cited by the majority support its 

conclusion that a witness’s statement at a Wade hearing is admissible at trial 

when the witness is unavailable. Ante at ___ (slip op. at 41-42). Each of the 

four cases cited by the majority concerned a preliminary hearing, a proceeding 

that is far different and broader in scope than a Wade hearing.4

 

For example, criminal prosecutions in California may proceed by way of 

the filing of an information rather than the return of a grand jury indictment. 

An accused charged by information is given a preliminary hearing. At the 

preliminary hearing, the accused has the right of “confrontation and crossexamination of hostile witnesses, and the opportunity to personally appear and 

affirmatively present exculpatory evidence.” Hawkins v. Superior Ct., 586 

P.2d 916, 917-18 (Cal. 1978); see also Holman v. Superior Ct., 629 P.2d 14, 

18 (Cal. 1981) (Bird, C.J., concurring) (“[T]he functions of the preliminary 

4

 In addition, three of the cases arose in the context of federal habeas corpus in 

which the federal courts’ power to review a state law conviction is extremely 

limited. See Gibbs v. Covello, 996 F.3d 596, 603 (9th Cir.) (explaining that 

the standard governing habeas corpus limits the federal courts’ power of 

review and concluding that the Confrontation Clause claim “is a close one, and 

if we were answering that question de novo, we might” find there to be a 

violation), cert. denied, 142 S. Ct. 453 (2021); Williams v. Bauman, 759 F.3d 

630, 636 (6th Cir. 2014) (explaining that, given a federal court’s limited 

remedial powers on habeas corpus review, so long as a state court decision on 

a Confrontation Clause issue leaves “room for reasonable debate,” it must be 

upheld, “even if it turns out to be wrong”). 
15 

hearing in our criminal process are broad and complex.”); State ex rel. 

Whitehead v. Vescovi-Dial, 950 P.2d 818, 820 (N.M. Ct. App. 1997) (“[T]he 

preliminary hearing legitimately may provide an opportunity for discovery by 

either side; it may help a party in preparation for future impeachment; it also 

may be used to perpetuate testimony for later use at trial.” (citing 2 Wayne 

LaFave & Jerold H. Israel, Criminal Procedure §§ 14.1(b), (c), (d) (1984))). 

A preliminary hearing is not comparable to a Wade hearing. The 

majority cannot point to a single reported case from any jurisdiction where the 

prosecution was permitted to introduce at trial an unavailable witness’s 

testimony at a Wade hearing.5

 

5

 The majority is incorrect in declaring that “P.V.’s April 13, 2014 statement 

was not offered into evidence -- let alone admitted into evidence -- at 

defendant’s trial.” Ante at ___ (slip op. at 46-47). The purpose of the 

prosecutor’s reading to the jury the Wade hearing transcript was to get into 

evidence P.V.’s hospital statement. The Wade hearing transcript had no other 

value. At the Wade hearing, P.V. had no recollection of the incident or his 

statement to the detectives. The transcript provided the colloquy between the 

prosecutor and P.V., which included the substance of P.V.’s statement made to 

the police at the hospital. Tellingly, the trial court instructed the jury that 

P.V.’s statement was in evidence, stating “you will be afforded the opportunity 

to hear [P.V.]’s statement from a prior proceeding that you may now consider 

as substantive evidence.” (emphasis added). In addition, in response to a jury 

question, the trial court made clear “that the statement of the victim at the 

hospital is subsumed on this record within the testimony of Detective 

Weisbrot.” 
16 

III. 

 In summary, I would affirm the Appellate Division and reverse 

defendant’s conviction because the admission of Sims’s statement to the 

detectives violated his right against self-incrimination and because the 

admission of P.V.’s hearsay statements to the detectives implicating Sims 

violated Sims’s confrontation rights. 

I therefore respectfully dissent.