A 76 17 State v. A.M. (080744) (Bergen County and Statewide)

Transcript

1 SYLLABUS Court’s This syllabus is not part of the 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. (A - 7 State v. A.M. - 1 7 ) ( 080 744 ) 6 January 15 , 201 9 -- Decided April 1 , 201 Argued 9 , J., writing for the Court. SOLOMON considers whether u Miranda v. Arizona , 384 U.S. 436 (1966), nder The Court defendant A.M., who speaks limited English, waived his constitutional right against self - incrimination pursuant to the Fifth Amendment to the United States Constitution. with his fourteen - Defendant was alone in his apartment r - old step - yea granddaughter when he hugged her , A.I., from behind, touching her breasts and vagina over her bathing suit, and inserted at le ast one finger into her vagina. After learning of the incident, A.I.’s mother contacted the Berge n County Prosecutor’s Office. Officers went to defendant’s home and transported him to the Bergenfield Police Department. Because defendant spoke little English and stated that he was more comfortable nslating the interview from English with Spanish, Detective Richard Ramos assisted in tra recorded to a DVD and later transcribed in to Spanish. The entire interview was video - typist employed by the Bergen County Prosecutor’s Office. - English by a clerk - Before the interview, Detective Ramos reviewed with defendant a Spanish listed each of , which language form prepared by the Bergen County Prosecutor’s Office defendant’s rights and contained a waiver paragraph . Detective Ramos read Miranda defendant his Miranda rights from the Spanish - language form, pausin g after reading each one to ask defendant in Spanish if he understood. Defendant replied “sí” (yes) each time and initialed each line . Detective Ramos then handed the form to defendant to review the waiver portion and asked in Spanish, “Do you understand ?” Defendant replied, “Sí,” and Detective Ramos told defendant to sign in two places, which defendant did. During the course of the interrogation that followed , defendant admitted to touching his step - granddaughter inappropriately. A grand jury indicted defendant for multiple counts of sexual assault and for endangering the welfare of a child. Defendant challenged the admission of his statement to police and Detective n, ’s translation of the interview. At the hearing on defendant’s suppression motio Ramos defendant “took his time reading [the form]. It appears to etective Ramos testified that D 1

2 [him] that [defendant] did read it.” Detective Ramos acknowledged that he did not ask any questions to determine defendant’s educational background or literacy l He also evel. testified about discrepancies between the video recording and the transcript of defendant’s statement and explained that he was “paraphrasing” defendant’s answers. After watching the DVD of defendant’s interview, the trial court denied defendant’s motion to suppress, finding that “defendant appeared calm during the interview, appeared to understand the questions posed to him in both English and tions forthrightly.” The court also explained Spanish, and was able to answer the ques fendant seemed “alert and cognizant” while the form was explained to him and that de that “it [was] clear from the video tape that defendant was given an opportunity to read the waiver paragraph and signed the waiver portion, and did in fact review the waiver ion before signing it.” Finally, referring to defendant’s expressed preference that the port interview be conducted in Spanish, the court added that, “[i]f defendant had any problem reading the waiver portion of the form, written in Spanish as he had requested , it is clear to this court that he would have voiced such difficulty.” The court concluded that, considering the totality of the circumstances, defendant knowingly, intelligently, and voluntarily waived his rights. Defendant pled guilty to secon d Miranda degree sexual - assault while reserving his right to appeal the den ial of his motion to suppress. T he Appellate Division reversed, finding the State failed to prove defendant made a voluntary decision to waive his rights. 452 N.J. Super. 587, 590 Miranda (App. Div. 2018). T he panel found that “[t]he [trial] judge’s analysis improperly shift[ed] the burden of proof to defendant to alert the interrogating officers about any difficulty he may be having understanding the ramifications of a legal waiver. ” Id . he panel also at 599. T challenged the interrogation’s transcription. See id. at 599 - 600 . Additionally, a concurring opinion sets forth perceived “inherent constitutional flaws” in relying on police officers, rather than certified neutral translators, as interpreters during custodial Id. at 600 - 04 . interrogations. The Court granted the State’s petition for certification. 234 N. J. 192 (2018). HELD: Although the better practice would have been to read aloud the form’s waiver portion to defendant, the Court relies on the trial court’s well - supported observations and factual findings and reverse s the Appellate Division’s judgment. 1. Generally, on appellate review, a trial court’s factual findings in support of granting or denying a motion t o suppress must be upheld when those findings are supported by sufficient credible evidence in the record. In State v. S.S. , 229 N.J. 360, 3 8 1 (2017) , the Court e xtended that deferential standard of appellate review to “factual findings based on a video recording o r documentary evidence” to ensure that New Jersey’s trial courts - 12) remain “the finder of the facts.” (pp. 1 1 2

3 To ensure that a person subject 2. to custodial interrogation is adequately and effe ctively the United States Supreme C Miranda warnings. apprised of his rights, ourt developed the - Miranda warnings ensures that a defendant’s right against self The administration of incrimination is protected in the inherently coercive atmosphere of custodial waiver of a defendant’s Miranda interrogation. right s must be knowing, intelligent, A ght of all of the circumstances surrounding the custodial interrogation. and voluntary in li the totality - of - the - circumstances inquiry , courts generally rely on factors such as the In intelligence, advice as to constitutional rights, length of suspect’s age, education and detention, whether the questioning was repeated and prolonged in nature and whether 15 ( pp. 12 - ) physical punishment or mental exhaustion was involved. . The Court reviews th e trial court’s fac tual findings in detail and concludes that the 3 Miranda failure of Detective Ramos to read the entire rights form aloud did not “improperly shift[] the burden of proof to defendant to alert the interrogating officers about any difficulty he may be having un derstanding the ramifications of a legal waiver.” 452 N.J. Super. at 599. To eliminate questions about a suspect’s understanding, the entire Miranda form should be read aloud to a suspect being interrogated, or the suspect should be asked to read the ent ire form aloud. Where that is not done, the suspect should be asked about his or her literacy and educational background. Nevertheless, in this case, because sufficient credible evidence in the record supports the trial court’s findings, the with the trial court that the Court agrees State proved beyond a reasonable doubt that defendant made a knowing, intelligent, and voluntary express waiver of his Miranda not reach the issue of implicit See , 229 N.J. at 365. The Court therefore does S.S. rights. er. (pp. 15 - 18) waiv 4. The Court notes this case demonstrates plainly the importance of videotaping that 1 custodial interrogations of suspects by police. 8 - 9 ) (pp. 1 5. A ny defendant has the right to challenge a translation under N.J.R.E. 104(c), which governs pretrial hearings on the admissibility of a defendant’s statement. Because a defendant has the right to contest a translation of custodial interrogation, as was d one a here, and Rule 104(c) provides the mechanism to do so, the holdings of the Court rejects the Appellate Division’s concurring opinion. That said, the State, as well as the defendant, is best served by the use of a capable translator during an interview . ( p. 19 ) REVERSED , and defendant’s The judgment of the Appellate Division is conviction is REINSTATED. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON ’S opinion. FERNANDEZ - VINA , and TIMPONE join in JUSTICE 3

4 SUPREME COURT OF NEW JERSEY 76 September Term 20 - A 17 080744 , State of New Jersey Plaintiff - Appellant , v. A.M. , Defendant - Respondent . On certification to the Sup erior Court, Appellate Division, whose opinion is reported at N.J. Super. 587 (App. Div. 2018 452 ). Argued Decided January 15, 2019 A pril 1, 2019 Ian C. Kennedy, Special Deputy Attorney General / Acting Assistant Prosecutor, argued the cause for appellant (Dennis Calo, Acting Bergen County Prosecutor, attorney; Ian C. Kennedy, of counsel and on the brief s ). Brian J. Neary argued the cause for respondent ( Law O ffices of Brian J. Neary, attorneys; Brian J. Neary, of counsel and on the letter brief s , and Jane M. Personett e, on the letter brief s ). Jane C. Schuster, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Jane C. ). Schuster, of counsel and on the brief s 1

5 Emma R. Moore, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey (Joseph E. Krakora, Public Defender, attorney; Emma R. Moore, of counsel and on the brief, and Joseph J. Russo, Deputy P ublic Defender, on the brief). Ale xander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom and Jeanne LoCicero, on the brief). JUSTICE SOLOMON delivered the opinion o f the Court. In this appeal, we are called upon to decide whether under Miranda v. defendant A.M., who spe Arizona , 384 U.S. 436 (1966) , aks limited English, waived his constitutional right against self - incrimination pursuant to the Fifth Amendment to the United States Constitution. - language Before his interrogation, defendant reviewed a Spanish form while a Spanish Miranda speaking officer read aloud defendant’s rights. - The officer pointed out the waiver portion of the form and defendant then signed it. After ward , defendant made incriminating statements in response to police officers’ questions. The trial court denied defendant’s motion to suppress his statement, finding that defendant knowingly, intelligently, and voluntarily waived his Miranda rights. The Appellate Division reversed, ing the State failed to meet its burden to show an express waiver. conclud 2

6 Although the better practice would have been to read aloud the form’s supported , we r ely on the trial court’s well waiver portion to defendant - ob servations and factual finding s and reverse the Appellate Division’s judgment. We therefore need not reach the issue of impli ed waiver. I. A. We garner t he following facts from the record of proceedings before the . trial court on defendant’s motion to suppress his statement to police Defendant was alone in his apartment with his fourteen year - old step - - granddaughter, A.I., when he asked her to try on her bathing suit to see if it fit. After she changed into the bathing suit, defendant hugged A.I. from behind, agina over her bathing suit, and inserted at least one touching her breasts and v finger into her vagina. A.I. told defendant to stop, pushed him away from her, and left the apartment. After learning of the incident, A.I.’s mother contacted the Bergen County Prosecutor’s Office. Officers went to defendant’s home and transported him to the Bergenfield Police Department. One member of the Prosecutor’s Office and two members of the Bergenfield Police Department conducted a n lish interview of d efendant . Because d efendant spoke little Eng , Detective Richard s more comfortable with Spanish and stated that he wa 3

7 Ramos assist in translati ng the interview from English to Spanish. The ed interview was vide o - recorded to a DV D and later transcribed in English entire by a clerk typist employed by the Bergen County Prosecutor’s Office . - Before beginning the interview, Detective Ramos reviewed with defendant a Spanish - languag e form prepared by the Bergen County Prosecutor’s Office , which set forth defendant’s Miranda rights . The form defendant’s Miranda listed each of rights in Spanish followed by “Entiende Usted?” (Do you understand?), “Respuesta” (Response) and “Iniciales” a waiver paragraph, which states in form is (Initials). At the bottom of the , “I have read the above declaration of my rights and they have been Spanish read aloud. I understand my rights. I am willing to answer questions without having a lawyer present. No promise or threats have been made to me and no pressure or coercion has been use d against me.” Spaces for signatures follow the waiver paragraph . Detective Ramos read defendant his Miranda rights from the Spanish - language form, pausing after reading each one to ask defendant in Spanish if Detective “ sí ” he understood. Defendant replied (yes) each time . Thereafter, defendant and stated in o Ramos wrote “ sí ” after each right, turned the form t Spanish, “If you want, you can read what I told you and you only have to put your initials on each line. That’s the same thing I read.” Defendant replied 4

8 “Uh - huh.” Defendant initialed each line and turned the form to Detective amos. R then handed the form to defendant to review the waiver Detective Ramos portion and asked in Spanish, “Do you understand?” D efendant replied, “ S í , ” and Detective Ramos told defendant in Spanish, “Write your name in the lin e[:] complete,” pointing to a signature line. Defendant signed the form where Detective Ramos had pointed , but Detective Ramos turned the form back to defendant, again pointing to the bottom part of the form and stat , ed ave to sign.” “And you have to sign here, the line is not there, but you h Defendant signed the form before turning it back to Detective Ramos, who then also signed it. Detective Lucas conducted the remainder of the interview , and Detective Ramos translated as needed. During the course of the interrogation, defe ndant admi tted to touching his step - granddaughter inappropriately. B. D efendant was indicted by a Bergen County grand jury for first - degree aggravated sexual assault, contrary to N.J.S.A. 2C:14 - 2(a)(2)(a); second - degree sexual assault, contrary to N.J.S.A. 2C:14 - 2(c)(4); two counts of third - ontact, contrary to N.J.S.A. 2C:14 - 3(a); degree aggravated criminal sexual c 5

9 and third degree endangering the welfare of a child, contrary to N.J.S.A. - 2C:24 - 4(a). challenged the admission of his statement to police, Defendant e beyond a reasonable do ubt that he contending that the State failed to prov , intelligently , and voluntarily knowingly waived his Miranda rights and that Detective Ramos inadequately translated the interview, denying him his rights to due process and equal protection. At the etective Ramos suppression motion , D hearing on defendant’s testified about his background and noted that, based on his personal experience speaking with both adults and children in Spanish, defendant “took his time reading . It appears to [him] that [defendant] did read it.” Detective [the form] Ramos acknowledged that he did not ask defendant any questions to determine defendant’s educational background or literacy level . Detective Ramos also testified about discrepancies between t he video recording and the transcript o f defendant’s statement and explained that he was “paraphrasing” defendant’s answers. After watching the denied DVD of defendant’s interview , the trial court that “defendant finding defendant’s motion to suppress in a written opinion, appeared calm during the interview, appeared to understand the questions posed to him in both English and Spanish, and was able to answer the 6

10 questions forthrightly.” The court also that defendant seemed “alert explained zant” while the form was explained to him and that “it [was] clear and cogni from the video tape that defendant was given an opportunity to read the waiver paragraph and signed the waiver portion, and did in fact review the waiver portion before signing it.” Finall y, referring to defendant’s expressed preference that the interview be conducted in Spanish, the court added that , “[i ]f defendant had any problem reading the waiver portion of the form, written in Spanish as he had requested, it is clear to this court that he would have voiced such difficulty.” The trial court concluded that , considering the totality of the circumstance s, defendant knowingly , intelligently , and waived his voluntarily Miranda rights. D - degree sexual assault while reserving efendant pled guilty to second his right to appeal the denial of his motion to suppress. The court sentenced d efendant to a six - year custodial term with Parole Supervision for Life, Megan’s Law and Nicole’s Law restrictions, and applicable fines and fees. C. Defendant appealed the trial court’s denial of his motion to suppress . In a published opinion , the Appel late Division reversed the decision of the trial court, finding the State failed to prove defendant made a voluntary decision to State v. A.M. rights. , 452 N.J. Super. 587, 590 (App. Div. waive his Miranda 7

11 2018). Although the panel applied the deferentia l standard of review we State v. S.S. , 229 N.J. 360, 379 - 81 (2017), the panel adopted in found that “[t]he [trial] judge’s analysis improperly shift[ed] the burden of proof to defendant to alert the interrogating officers about any difficulty he may be having understanding the ramifications of a legal waiver , ” A.M . , 452 N.J. Super. at 599. The panel that the trial court ’s decision illustrated “a observed fundamental misunderstanding of the legal principles governing a motion to suppress under Miranda ” because the court did not address Detective Ramos’s failure to ask about defendant ’s education or literacy level, his failure to read Miranda the waiver al oud , or his failure to explain to defendant what a waiver entails. Id. at 598 - 99. included a Observing that the record presented to the motion judge did not contain any information about transcript of defendant’s statement but qualifications as a translator, the panel also challenged the the transcriber’s interrogation’s transcription . See i d. at 599 - 600 ( “The mere fact of having a Hispanic last name does not create a rational basis to infer anything about a ” ). person’s linguistic ability. Additionally, “inherent a concurring opinion set s forth perceived rather than certified neutral , constitutional flaws” in relying on police officers 8

12 . translators as interpreters during custodial interrogations. Id. at 600 - 04 The , concurrence call s upon the Attorney General to “develop appropriate guidelines to assist county prosecutors and municipal police departments on how to interrogate limited English proficient suspects.” Id. at 60 4. We granted the State’s petition for certification. 234 N. J. 192 (2018). We also granted the Attorney General, the Office of the Public Defender, and the American Civil Liberties Union of New Jersey (ACLU ) leave to participate as amici curiae. II. A. to reverse the Appellate Division’s dec The State asks us ision and to clarify whether Miranda waivers must be obtained with the use of “impartial - - speaking suspects. The State contends that the participants” for non English Appellate Division erred by considering Detective Ramos’s status as a police officer and T he State claims his paraphrasing of some of defendant’s answers. that the panel should instead have deferred to the trial court’s factual findings in assessing whether defendant waived his Miranda rights under the totality - of - the circumstances. In the a lternative, the State argues that defendant impliedly - waived his warnings rights by stating that he understood his Miranda Miranda the that in the interview. Finally, the State argues and by actively participati ng 9

13 the transcriber’s status as a law enforcement panel improper suggest s that ly employee establishes a flaw in the translation. The Attorney General asserts many of the same arguments as the State and a lso argues that translations of interviews by certified neutral translators are not r equired under the court rules, rules of evidence, or any case law. The Attorney General stress es that defense counsel did not challenge the interview transcript despite the trial judge’s permission to do so . B. Defendant asks this Court to affirm the A ppellate Division decision and require qualified neutral interpreters in all interrogations where suspects speak State v. Bey (II) , 112 N.J. 123, 124 (1988), limited English. Relying on hi s defendant argues that the State failed to meet its “heavy burden” of proving Miranda waiver was “knowing, intelligent, and voluntary in light of all of the circumstances.” Defendant contends that Detective Ramos’s translati on inaccuracies were pre and challenges the use of law enforcement judicial employees for both interrogation and transcription. In addition to agreeing with defendant that qualified neutral interpreters should be required in all suspect interrogations, the Public Defender urges the Court to require that law enforcement have suspects read aloud the waiver forms to establish literacy and comprehension . portion of Miranda 10

14 The ACLU contends that defendant’s review of the waiver paragraph did and the State failed to meet s understanding of its contents not demonstrate hi its burden to produce evidence of defendant’s literacy or comprehension. The ACLU reiterates that the State has the burden of proving, beyond a reasonable , and maintain s that doubt, that defendant’s waiver was inte lligent and knowing the State offered no evidence beyond defendant’s failure to note any lack of understanding. III. A. We begin our discussion by outlining our review of a trial circumscribed court’s decision in a motion to suppress. “Generally, on appellate review, a trial court’s factual findings in support of granting or denying a motion to suppress must be upheld when ‘those findings are supported by sufficient credible evidence in the record.’” S.S. , 229 N.J. at 3 74 ( quo ting State v. Gamble , 218 N.J. 412, 424 (2014)). Therefore, “[a] trial court’s findings should be disturbed only if they are so clearly mistaken ‘that the interests of justice demand intervention and co rrection.’” State v. Elders , 192 N.J. 224, 244 (2007) (quoting State v. Johnson , 42 N.J. 146, 162 (1964)). to In S.S. , we extended that deferential standard of appellate review “factual findings based on a video recording or documentary evidence” to 11

15 ensure New Jersey’s trial courts remain “the finder of the facts.” 229 N.J. that at 38 1 (quoting Fed. R. Civ. P. 52(a) advisory committee’s note to 1985 . W e explained that “ [p] ermitting appellate courts to substitute amendment) their factual findings for equally plausible trial court findings is likely to ‘undermine the legitimacy of the [trial] courts in the eyes of litigants, multiply appeals by encouraging appellate retrial of some factual issue s, and needlessly - reallocate judicial authority. ” Id. at 38 0 ’ 81 ( second alteration in original) ( quo ting Fed. R. Civ. P. 52(a) advisory committee’s note to 1985 amendment). An appellate court owes no deference, however, to “conclusions of law ower courts in suppression decisions,” which are reviewed de novo. made by l State v. Boone , 232 N.J. 417, 426 (2017) (citing State v. Watts , 223 N.J. 503, 516 (2015)). B. Turning to the law governing a defendant’s waiver of his Miranda rights , [t] we first note that “ he right against self - incrimination is guaranteed by the Fifth Amendment to the United States Constitution and this s tate’s common law, now embodied in statut e , N.J.S.A. 2A:84A - 19, and evidence rule, 82 (quoting , 197 N.J. N.J.R.E. 503.” S.S. , 229 N.J. a t 381 - State v. Nyhammer 383, 399 (2009)). To ensure that a person subject to custodial interrogation is “adequately and effectively apprised of his rights,” the United States Supreme 12

16 Court developed constitutional safeguards the M iranda warnings. Miranda , -- Th o se warnings require that d uring custodial interrogation a 384 U.S. at 467. “ that he has the right to remain silent, ” id. at 467 - defendant must be informed that anything he says “can and will be used against 68, [him] in court,” id. at 469, and that he has “ the right to have counsel present at the interrogation,” ibid. The administration of Miranda warnings ensure s that a defendant’s right against self - incrimination is protected in the inherently coercive atmosphere of , 133 N.J. 237, 255 (1993). custodial interrogation. See State v. Reed Miranda Likewise, a waiver of a defendant’s product rights may “ never be the of police coercion but must instead be “knowing, intelligent, and voluntary ,” in light of all of the circumstances.” State v. Presha , 163 N.J. 304, 313 (2000) . A waiver may be “established even absent formal or express statements . ” is Berghuis v. Thompkins , 560 U.S. 370, 383 (2010) . An “ ex plicit statement ” ] not necessary “ [ a as ny clear manifestation of a desire to waive is sufficient, ” and instead we look for a “showing of a knowing intent . ” State v. Hartley , 103 ) N.J. 252, 313 (1986) (quoting , 52 N.J. 303 , 311 (1968) State v. Kremens . Although federal law requires only that waiver be proven “ by a , 479 U.S. 157, 168 Colorado v. Connelly preponderance of the evidence,” (1986), New Jersey law requires that the prosecution “prove beyond a 13

17 reasonable doubt that the suspect’s waiver was knowing, intelligent, and voluntary in light of all the circumstances.” , 163 N.J. at 313. When Presha , t standard , “‘ knowledge ’ applying is always a relevant factor” but hat “because the right is against comp elled self - incrimination, ‘knowledge’ can be best understood as a condition of ‘voluntariness,’ which itself denotes the absence of ‘compulsion.’” Reed , 133 N.J. at 255 - 56. In other words, when “ Miranda waiver , ” determining the validity of a trial courts must decide “ whether the suspect understood that he did not have to speak, the consequences of speaking, and that he had the right to counsel before doing so if he wished.” Nyhammer , 197 N.J. at 402 (quoting State v. , 52 N.J. 352, 374 (1968)) Magee Our decision in . Nyhammer relied on the United States Supreme Court’s further explanation that “ the police supply a Miranda does not require that suspect with a flow of information to help him calibrate - interest in deciding whether to speak or stand his self by his rights because “ the additional information could ” affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature. ” Id . at 407 (quoting Colorado v. Spring , 479 U.S. 564, [ 57 6 - 77 (1987)). ] Accordingly , “a valid waiver does not require that an individual be informed of all information useful in making his decision.” Ibid. (quoting Spring , 479 ) omitted) . Instead, a knowing, U.S. at 576 (internal quotation marks 14

18 intelligent , and voluntary waiver is dete rmined by the totality of the - circumstances surrounding the custodial interrogation based on the fact based assessments of the trial court. See Presha , 163 N.J. at 313. In the totality - of - the - circumstances inquiry, courts generally rely on factors such as “the suspect’s age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.” State v. Miller , 7 6 N.J. 392 , 402 (1978). For considered the totality of the circumstances, including example, in (II) , we Bey the defendant’s youth -- defendant turned eighteen two weeks before the interrogation and -- his “extensive record of delinquency.” 112 N.J. at 135. In that instance , we found that the trial court properly ruled that the defendant’s -- oral and written confessions obtained after just over three hours of interrogation and nine hours at the police station , during which th e defendant asked to “lie down” and “was offered food, beverages , cigarettes , and the 134 opportunity to rest” -- was voluntary. Id . at - 35. IV. A. We apply the above principles to decide whether the “trial court’s ‘are [defendant’s] motion to suppres s . . . factual findings in . . . denying 15

19 supported by sufficient credible evidence in the record.’” S.S. , 229 N.J. at 374 Gamble ). In doing so , we first observe (quoting that , 218 N.J. at 424 does not con tend that his questioning was repeated or prolonged, or defendant that he was subjected to physical coercion or mental exhaustion. Rather, defendant claims that the State has failed to meet its burden to prove beyond a reasonable doubt that defendant understood his righ ts and understood that he was waiving them. Here , t he trial court denied defendant’s motion to suppress based on its fact - based assessment of the video - recorde d interview of defendant’s custodial interrogation . Specifically, the trial court observed that defendant appeared calm, appeared to the questions posed to him in both English and appreciate Spanish, and “ ” The trial court was able to answer the questions forthrightly. video record that also found that it was clear from the officers gave the def endant an opportunity to read the waiver paragraph of the Miranda form presented to him and that defendant signed the waiver portion after reviewing it. Finally, the trial court found as a fact based on defendant’s calm demeanor , and his request to have a Spanish translator present , that defendant would have expressed any difficulty he may have had in reading the waiver portion of the form. We must uphold those factual findings of the trial court if they are 229 N.J. at 374. adequately supported. S.S. , 16

20 Moreover , the record before this Court is “devoid” of any implication , that defendant “was confused or did not fully appreciate his rights ” nor was he “coerced, intimidated, or tricked” by police into giving a statement. State v. , 141 N.J. 475, 503 (1995) (superseded by statutory Mejia and amendment overruled on separate grounds). Instead, “[o] ur reading of the record ” in this case “persuades us that the police, confronted with the practical problem of advising a Spanish speaking suspe ct, adequately administered the Miranda - warnings.” Ibid. Ultimately, in response to the “critical issue” of whether defendant voluntarily waived his knowingly, intelligent ly , and Miranda rights, the trial court relied upon at the hearing on defendant’s Detective Ramos’s testimony defendant’s actions and appearance on motion to suppress his statement, and o the vide record of his interrogation. The trial court found that the video showed defendant reviewing the waiver portion of the form , signing his na me to indicate that he read and attested to the waiver portion, appearing alert and cognizant while the form was explained to him and while he signed it, and responding to questions . T h e court found that these actions suppo rted the State’s contention that defendant adequately understood his rights and that he was waiving his rights. Therefore, defendant’s signature constituted a In addition, when knowing, intelligent, and voluntary express waiver. 17

21 Detective Ramos asked whe ther defendant understood the waiver he had just read, defendant responded that he did. While the better practice is to read the entire Miranda rights form aloud to a suspect being interrogated, based upon the trial court’s factual findings we determine , however, the failure of Detective Ramos to do so here did not “improperly shift[] the burden of proof to defendant to alert the interrogating officers about any difficulty he may be having understanding the ramifications T of a legal waiver. A.M. , 452 N.J. Super. at 599. ” o eliminate questions about a suspect’s understanding, the entire Miranda form should be read aloud to a suspect being interrogated, or the suspect should be asked to read the entire form aloud. Where that is not done, the suspect should be asked about , his or her literacy and educational background. Nevertheless, in this case b credible evidence in the record supports the trial court’s sufficient ecause , we agree with the trial court that the State proved beyond a s finding voluntary bt that defendant made a knowing, intelligent , and reasonable dou express Miranda rights. See waiver of his S.S . , 229 N.J. at 365. We therefore need not reach the issue of implicit waiver. We note here that by videotaping their questioning of defendant, police permitted the trial court to review the interview, and assess defendant’s overall deportment and conduct as well as the officers’ demeanor and conduct 18

22 throughout the custodial interrog ation. This demonstrates plainly the importance of videotaping custodial interrogations of suspects by police. B. Ramos’s with respect to the accuracy of both Detective Finally, translation and the English transcript of the interrogation, any defendant has the right to challenge a translation under N.J.R.E. 104(c), which governs pretrial hearings on the admissibility of a defendant’s statement. Where defense or redactions in a counsel and the prosecutor cannot agree on words, phrases , translated or other statement by a defendant, and a hearing under 104(c) is Rule ule specifically provides, “In such a hearing the rules of R required, the ibility of the evidence shall apply and the burden of persuasion as to the admiss statement is on the prosecution.” Because a defendant has the right to contest a translation of his or her custodial interrogation, as was done here, and Rule 104(c) provides the mechanism to do so, we reject the holdings of the Appellate D ivision’s concurring opinion. That said, the State, as well as the defendant, is best served by the use of a capable translator during an interview. If an unskilled person translates instead, errors in translation can throw off the answer session, be exposed to the jury later on, and possibly question - and - result in the transcript being barred. 19

23 V. For the reasons set forth above, we reverse the judgment of the Appellate Division and reinstate defendant’s conviction. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ - VINA, and TIMPONE join in JUSTICE SOLOMON’S opinion. 20

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