SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. JOSE M. CASTRO

- LAVADO, Defendant

- Appellant.

______ _______________________

Submitted July 8, 2019

– Decided July 16, 2019 Before Judges Yannotti and Haas. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 17

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- 0422. Joseph E. Krakora, Public Defender, attorney for appellant (John W. Douard, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorne y for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief). PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

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After the trial court granted the State's motion to admit two statements he provided to law enforcement , defendant pled guilty to first

- degree aggravated manslaughter, N. J.S.A. 2C:11

- 4(a)(1). Defendant appeals from the judgment of conviction dated July 2, 2018, and challenges the judge's decision to admit the
statement he made to law enforcement at the prosecutor's office, and the
sentence the court imposed. For the reas ons that follow, we affirm the order admitting defendant's statement and his conviction , but remand for resentencing

. I.
In June 2017, a Hudson County grand jury charged defendant with first

degree purposeful or knowing murder, N.J.S.A. 2C:11

- 3(a)(1) and/ or (2) (count one); third

- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39

- 4(d) (count two); and fourth

- degree unlawful possession of a weapon, N.J.S.A. 2C:39

- 5(d). Thereafter, the State filed a motion to admit two
statements defendan t provided to the police. On October 13, 2017, the judge conducted an evidentiary hearing on the State's motion. Detective Ramo n Lopez of the Kearny Police Department testified that during the evening of April 10, 2017, he responded to a second

floor apartment in a house on Chestnut Street in Kearny. Two other officers and members of the fire department were already on the scene. Lopez proceeded to3 A

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the second

- floor apartment and was told by officers that the victim was dead. The victim was defendant's wife. According to Lopez, defendant was seated on the stairs outside the apartment. The police had placed him in handcuffs. A ccording to Lopez, defendant appe ared to be calm. Defendant kept trying to speak, but Lopez " tried to discoura ge him from doing " so. Because d efendant continued speakin g, Lopez read defendant his Miranda rights in Spanish

. 1
Defendant told the officer that he should check the victim's phone because

men had been calling her. "[ H ] e said he knew what he did was w rong and he would accept

. . . responsibilit[ y ]" for his actions. Lopez and another officer transported defendant to the offices of the Hudson County Prosecutor. There, Detective Nathan Gonzalez read defendant his Miranda rights in Spanish. Lopez was present for the interview

. Lopez noted that there was blood on defendant's clothes. Lopez testified that defendant did not appear under the influence of alcohol or drugs , and his speech was coherent. The investigator questioned defendant fo r about forty

- five minutes. The investigator made a video recording of the interview. The recording was played and translated into English.

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

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The State also presented the judge with a transcript of defendant's recorded statement, which had been translate d into English. The transcript states that after Gonzalez read defendant his Miranda rights, defendant agreed to answer the detective ' s questions. Defendant said he married the victim four years ago in Peru. Defendant had been living in the United State s for six months before the incident. He stated that he learned that his wife had been unfaithful. When defendant questioned his wife about other men she had been seeing , she said they were friends. Defendant stated that earlier that day, he returned h o me from work around 6:00 p.m. His wife was in the bedroom. They started to argue. He confronted her about her infidelit y . The victim told defendant the men she had gone out with were just friends. She told defendant to take his things and leave.
Acco rding to defendant, his wife struck him. He went to the kitchen and grabbed two knives. Defendant stated that t he argument continued. He stabbed his wife

once , and his wife apologized for her "mistakes," but defendant said he kept stabbing her because h e was "so angry." After he stopped stabbing his wife, defendant grabbed h is wife by the neck and began to strangle her. He said his intention was to kill her.5 A

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Defendant also testified at the hearing. He said that before that day , he had n ever been in a police station. He had never been arrested, and only completed the third grade in school. Defendant said his native language is Spanish, and he grew up in Peru. He is not able to read or write in English. He

s tated that he was told that if he decided to answer questions without a lawyer present, he could still stop answering questions at any moment until he consulted with a lawyer. He was asked if he understood that statement, and said he thought his attorney could not come in until after the detecti ves finished questioning him. Defendant admitted he was told that an attorney would be appointed for him if he did not have money to pay for a lawyer, but stated that he thought he could give his statement and afterwards, that appointed attorney "would help me[.]" He also said he understood tha t if he could afford an attorney, that lawyer would have been able to represent him before he answered questions. Defendant admitted signing the form which stated that he waived his Miranda rights , but he said he was not able to read the document before he signed it. He relied upon what the detective had read to him on th e form. He stated that if he had known he had a right to an attorney before he answered any questions, he would have asked for an attorney to represent him.6 A

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Defendant further testifie d that at the "second place" where he was taken, he was asked a series of questions about his name and employment, and he said "[ i ]t was a little hard because h e was in shock" at the time. He said that sometimes he did not "understand well" and the invest igat ors " would repeat the question [

. ]" Defendant admitted that the investigators spoke to him in Spanish and discussed all of his rights. He stated that he knew he did not have to say anything, but he wanted to tell the investigators what had happened at the hous e . The judge heard oral argument by counsel and thereafter read an oral decision into the record. The judge summarized the testimony and found that Lopez was "highly credible." The judge found that the statements defendant made to Lopez at the house were made spontaneously and not in response to any questions by the of ficer. There was n o evidence defendant was coerced into making his statements. The judge found that these statements were admissible. The judge also noted that the State had the burden of proving beyond a reasonable doubt that d efendant's waiver of his Miranda rights at th e prosecutor's office was mad e knowingly, intelligently, and voluntarily

. The judge stated that the court must consider the totality of circumstances in determining if the State had met its burden.7 A

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The judge found that defendant unambiguously stated sever al times that he did not w ant a lawyer. Defendant stated that he understood that he could have a lawyer before questioning. He was told that it did not matter if he could not afford a lawyer, one would be appointed to represent him. Defendant testified that he did not understand he could have a lawyer prior to questioning, but the judge found t his testimony was inconsistent with the transcripts of the interview. The judge found defendant's testimony was not credible, and noted that the overwhe lming amount of evidence presented by the State contradict ed his testimony. The judge also not e d that a person's literacy and education were factors to be considered in deciding whether he waived his Miranda rights knowingly, intelligently, and voluntaril y. The judge pointed out that Gonzalez spoke with defendant and read him his rights in Spanish so he could waive them orally. Gonzalez also told defendant what he was signing so he did not have to read the waiver. The judge found that defendant's level of education did not bolster his credibility. The judge noted that defendant was thirty

- six years old when he made the statement, and while his education is limited, there was no sign this had an impact on his waiver. The judge observed that the interro gation lasted8 A

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only forty

- five minutes, and there were " no signs of police misconduct. " The judge concluded that the State had proven, beyond a reasonable doubt, that defendant validly waived his Miranda rights and the recorded statement could be admitted at trial

. On April 16, 2018, defendant pled guilty to count one, which was amended from first

- degree murder to first

- degree aggravated manslaughter,
N.J.S.A. 2C:11

- 4(a)(1). At the plea hearing, defendant admitted that on April 10, 2017, he learned his wif e had been cheating on him

. He said that a fter work, he went home and confron ted her with that information. Defendant said his wife insulted him and he became enraged about her insults and infidelity. He went to the kitchen, took two knives , an d stabbed her. He admitted he was aware that by stabbing his wife, he was creating a substantial risk she may susta in serious bodily injury and die as a result. The reafter, the judge sentenced defendant to twenty

- five years of incarceration, with an eighty

- five p ercent period of parole ineligibility, pursuant to the No Early Release Act (NERA) , N.J.S.A. 2C:43

- 7.2, and five years of parole supervision. This appeal followed.

On appeal, defendant argues:9 A

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- 18T2 POINT I [DEFENDANT] 'S STATEMENT SHOULD BE SUPPRESSED BECAUSE IT WAS TAKEN IN VIOLATION OF MIRANDA , BECAUSE HE READS AT A THIRD

- GRADE LEVEL, [DEFENDA N T] WAS UNABLE TO PROVIDE A KNOWING AND INTELLIGENT WAI VER OF HIS RIGHT TO AN ATTORNEY. U.S. [CONST.] AMENDS. V, XIV; N.J. [CO NST. ART. ] I, [ PARA. ] 1.
POINT II THE TRIAL JUDGE ERRED IN FAILING TO FIND MITIGATING FACTORS THAT WERE SUPPORTED BY THE RE C ORD, AND FAILING TO ADEQUATELY WEIGH AGGRAVATING AND MITIGATING FACTORS, RESULTING IN A MANIFESTLY EXCESSIVE SENTENCE.
II. On a ppeal, defendant does not challenge the trial court' s order admitting the statement he made to the police outside of the apartment where the decedent's body was found. Rather, defendant argues the trial court erred by admitting the recorded statement he p rovided to law enforcement

. He contends the statement was taken in violation of his rights under Miranda because he reads at a third

- grade level and was not able to mak e a knowing and intelligent waiver of his Miranda rights. When reviewing a trial court's decision on a motion to suppress evidence, we defer to the court's factual and credibility findings if "supported by sufficient10 A

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credible evidence in the record." State v. S.S. , 219 N.J. 360, 374 (2017) (quoting
State v. Gamble , 218 N.J. 412, 424 (2014)) . We accord deference to the trial
court's " findings because the trial court has the ' opportunity to h ear and see the witnesses and . . . have the "feel" of the case, which a reviewing court cannot enjoy. '" Ibid. (quoting State v. Elders , 192 N.J. 224, 244 (2007)).
We will disregard a trial court's findings of fact only if those findings " are

. . . clearly mistaken." State v. A.M. , 237 N.J. 384, 395 (2019) (quoting Elders , 192 N.J. at 244). Fu r thermore, the trial court's legal conclusions or the legal significance of established facts are entitled to no special deference , and we review those determinations de novo. Id. at 396 (citing State v. Boone , 232 N.J.
417 , 426 (2017 )). The right against self

- incrimination is gu aranteed by the Fifth Amendment to the United States Constitution and New Jersey law. See U.S. Const. amend

. V; N.J.S.A. 2A:84A

- 19; N.J.R.E. 503. In Miranda , the United States Supreme Court prescribed certain warnings that must be provided to an individu al in police custody b efore interrogation may begin. Miranda , 384 U.S. at 479. The police must inform the individual

[1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one11 A

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- 18T2 will be appointed for him prior to a ny questioning if he so desires. [ Ibid. ] Miranda also requires that a p erson in custody be informed that he can exercise his rights at any time during the investigation. Ibid. The State has the burden to establish that the individual was informed of his rights, and that he knowingly, voluntarily, and intelligently waived those rights before the statements obtained in the interrogation can be used against him. See i bid. In determining if the defendant's statement was voluntary, the court considers " t he totality of circumstances. " A.M. , 237 N.J. at 398

. The refore, the
court should consider "the defendant's ' age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in n ature and whether physical punishment or mental exhaustion was involved. ' " State v. Nyhammer , 197 N.J. 383, 402 (2009) (quoting State v. Presha , 163 N.J. 304, 313 (2000) )

. Here, the motion judge found that defendant waived his Miranda rights knowingly, voluntarily, and intelligently. There is sufficient credible evidence in the record to support the court's finding. As noted, after his arrest, defendant was taken to the prosecutor's office for questioning. Gonzalez spoke with defend ant and informed him of his Miranda rights in Spanish . The detective12 A

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told defendant he had the right to remain silent, and that anything he said can and will be used against him in a court of law. Defendant stated that he understood. In addition, the de tective told defendant that he had the right to consult with a lawyer before answering any question and the right to have the attorney present during questioning. Defendant again said that he understood. The detective also told defendant that if h e could not afford an attorney, an attorney will be appointed to him before any questioning if he wished . He stated that he understood. The detective told defendant that if he decides to answer questions without an attorney present, he still " ha [ d ] the right to stop answeri ng questions at any moment until you consult with a lawyer." Defendant said he understood. The detective then asked defendant if he was willing to answer questions. He replied, "Yes, but I don't have money to pay for a lawyer." The detect ive told defendant that does not matter and a lawyer "can be appointed to you." Defendant stated, " [O] kay." The detective stated, "The question is, now that you understand your rights, are you willing to answer questions?" Defendant replied, "Yes."
On appeal, defendant asserts that he has a third

- grade literacy level in Spanish a nd does not speak any English. He claims he did not understand he13 A

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could have a lawyer appointed for him before he made any statements. The transcript of the interview shows , h owever, that the detective specifically told defendant a lawyer could be appointed for him before any questioning and defendant stated that he understood. Defendant also argues that the motion judge erred by giving virtually no consideration t o the possi bility that he did not understand he could have an attorney appointed for him before he made any statement, rather than after he answered the detective's questions. The judge found, however, that defendant's testimony at the hearing was not credible, and that the State had presented overwhelming evidence that defendant understood his rights, notwithstanding his third

- grade education and lack of literacy in both Spanish and En glish. The record supports those finding s . We therefore conclude there is sufficient credible evidence in the record to support the judge's determination that defendant made a knowing, intelligent, and voluntary waiver of his Miranda rights. The judge properly found that defendant's recorded statement could be admitted into evi dence. Defendant's other arguments on this issue lack sufficient merit to warrant discussion. R. 2:11

- 3(e)(2).14 A

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- 18T2 III. Defendant also argues that his sentence is excessive. He contends the judge should not have sentenced him to a prison term longer tha n the statutory minimum of ten years. We review the sentence imposed in a criminal matter under an abuse of discretion standard. State v. Jones , 232 N.J. 308, 318 (2018) (citing State v. Robinson , 217 N.J. 594, 603 (2014)) . In doing so, we consider whether: "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were . . . 'based upon competent credible evidence in the record'; [and] (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" State v. Bolvito , 217 N.J. 221, 228 (2014) (third alteration in original) (quoting State v. Roth , 95 N.J. 334, 364

- 65 (1984)). "An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell , 117 N.J. 210, 215 (1989) ( citing Stat e v. Jarbath , 114 N.J. 394, 400

- 01 (1989); Roth , 95 N.J. at 364

- 65). Here, the judge found aggravating factors one, N.J.S.A. 2C:44

- 1(a)(1) (offense "was committed in an especially heinous, cruel, or depraved manner");15 A

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nine, N.J.S.A. 2C:44

- 1(a)(9) (need t o deter "defendant and others from violating the law"); and fifteen, N.J.S.A. 2C:44

- 1(a)(15) ( " offense involved an act of domestic violence " and "defendant committed at least one act of domestic violence on more than one occasion" ). The judge also found m itigating factors seven, N.J.S.A. 2C:44

- 1(b)(7) (defendant has no prior record of delinquency or criminal activity); and twelve, N.J.S.A. 2C:44

- 1(b)(12) (defendant was willing to cooperate with law enforcement). The judge found " that the aggravating facto rs substantially outweigh [ed] the mitigating factors [ , ]" and sentence d defendant in accordance with the plea agreement to a custodial term of twenty

- five years, with an eighty

- five percent period of parole ineligibility, pursuant to NERA. On appeal, defen dant a rgues that the judge weighed aggravating factors one and fifteen too heavily. He also argues the judge gave too much weight to aggravating factor nine

. He claims the circumstances of this offense " are unlikely to recur " and " neither specific nor general deterrence " would be served by a maximum prison term. In addition, defendant argues the judge should have weighed mitigating factor seven more heavily in view of his "unblemished" criminal record, and erred by giving mitigating factor twelve littl e weight.16 A

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Defendant further argues that the judge erred by not finding mitigating factors three, N.J.S.A. 2C:44

- 1(b)(3) ( "[D]efendant acted under a strong provocation [.] "); eight, N.J.S.A. 2C:44

- 1(b)(8) ( "[D] efendant's conduct was the result of circumsta nces unlikely to recur [.] "); nine, N.J.S.A. 2C:44

- 1(b)(9) (defendant's attitude and character make it unlikely he will commit another offense); and eleven, N.J.S.A. 2C:44

- 1(b)(11) (defendant's imprisonment will cause "excessive hardship to himself or his d ependents"). We are convinced there is sufficient credible evidence to support the judge's findings of aggravating factors one and nine

. The judge did not err by giving substanti al weight to aggravating factor one. The record shows that d efendant committ ed th e offense in an especially heinous and cruel manner. Also, the judge did not err by finding there was a need to deter defendant and others from violating the law in this manner, and by giving that aggravating factor substantial weight. We are also c onvinced the judge did not err by giving little weight to mitigating factor seven since defendant had only been in the United States for six months before he killed his wife and did not commit any other criminal offenses in that brief period. See State v. Soto , 340 N.J. Super. 47, 72 (App. Div. 2001) (holding that the judge properly refused to finding mitigating factor17 A

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seven where the defendant had only been in this country three years)

. Moreover, the judge properly gave little weight to mitigating factor twelve. See State v. Read , 397 N.J. Super. 598, 613 (App. Div. 2008) (noting that defendant's confession was not entitled to any substantial weight in the absence of any indication defendant had identified any other perpetrators or assisted the State
in solving other crimes)

. The judge also did not err by refusing to find mitigating factors three, eight, nine, and eleven

. Defendant claim ed his wife was unfaithful and taunted
him , but this does not constitute the " strong provocation " required for mitigating factor three. Furthermore, the record does not support defendant's contention that his character and attitude indicate it is unlikely he will commit another offense in the future, or his claim that his criminal conduct was the result of circum stances unlikely to recur. Also, while a lengthy prison term may be a hardship to defendant and his dependents , the record does not support a finding that the hardship would be excessive

. We conclude, however, that the judge erred by finding aggravating factor fifteen, which applies when "[t]he offense involved an act of domestic violence, as that term is defined in [N.J.S.A. 2C:25

- 19(a)] and the defendant committed at least one act of domestic violence on more than one occasion ." N.J.S.A.18 A

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2C: 44

- 1(a)(15 ) (emphasis added). Here, defendant pled guilty to aggravated manslaughter, which comes within the definition of "an act of domestic violence " as defined in N.J.S.A. 2C:25

- 19(a)

. Domestic violence includes "homicide" under N.J.S.A. 2C:11

- 1 to

- 6, and agg ravated manslaughter is criminal homicide. N.J.S.A. 2C:11

- 4(a). Nevertheless, there is nothing in the record to show that defendant committed "at least one act of domestic violence on more than one occasion." Therefore, there is insufficient evidence i n the record to support the finding of aggravating factor fifteen. The ordinary term of imprisonment for aggravated m anslaughter under N.J.S.A. 2C:11

- 4 (a)(1) is ten to thirty years. See N.J.S.A. 2C: 11

- 4(c). The plea agreement provided that the State wo uld recommend that defendant be sentenced to a twenty

- five year prison term , with an eighty

- five percent period of parole ineligibility, pursuant to NERA. Because the trial court gave aggravating factor fifteen "tremendous weight " in sentencing defendant to a twenty

- five

- year prison term, we are constrained to remand for resentencing. On remand, the cour t should allow the State to present any evidence that defendant "committed at least one act of domestic violence on more than on e occasion." See N.J.S.A. 2C:44

- 1(a )(15). If the State does not present such19 A

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evidence, the court should resentence defendant in accordance with the other aggravating and mitigating factors found. Defendant's conviction is affirmed, and the matter remande d to the trial court for resentencing in conformance with this opinion. We do not retain jurisdiction.