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Date: 03-25-2019

Case Style:

State of New Jersey v. Adrian A. Vincenty, a/k/a Adrian A. Vicente and Adrian A. Vicenty

Case Number: (A-40-17) (079978)

Judge: Faustino J. Fernandez-Vina

Court: Supreme Court of New Jersey

Plaintiff's Attorney: Frank Muroski, Deputy Attorney General

Defendant's Attorney: Stephen W. Kirsch, Assistant Deputy Public Defender

Description:





Adrian Vincenty was incarcerated at the Garden State Correctional
Facility when Detectives Thomas Glackin and Brian Mera visited him to
question him about the attempted robbery and attempted murder of Jerry
Castellano. Castellano was attacked on March 20, 2011 in Weehawken.
Video surveillance of the attack showed two men approach Castellano. The
assailants attempted to rob Castellano but were unable to execute the robbery.
One of the assailants shot Castellano in the back of the head. One of the
assailants wore a mask and dropped or threw it away after the attack.
Castellano ultimately survived the attack.
4

Police officers recovered the mask on the night in question. The mask
was tested for DNA -- and Vincenty’s DNA was found on it. The detectives
also identified Vincenty from the video recording of the attack. The detectives
sought to question Vincenty to identify the second assailant on the video
recording.
Detective Glackin asked Detective Mera to accompany him to question
Vincenty because Vincenty speaks only Spanish and Mera is fluent in Spanish.
The detectives recorded the interview. Detective Mera spoke with Vincenty in
Spanish.
Detective Mera read Vincenty his Miranda1 rights -- and Vincenty was
given and read a form detailing his rights. The form was written in both
English and Spanish. At the bottom of the form, it read: “I acknowledge that I
have been advised of the constitutional rights as stated above.” Underneath
this acknowledgment, Vincenty signed the form.
Detective Mera explained that the police identified Vincenty from the
video recording of the attack and sought his assistance to identify the second
assailant on the video recording. Detective Mera told Vincenty that “the judge
already charged [him].” Detective Mera explained that they obtained
Vincenty’s DNA from the mask recovered at the scene of the attack. Detective

1 Miranda v. Arizona, 384 U.S. 436 (1966).
5

Mera then explained “how DNA works” -- that each individual has distinct
DNA -- and informed Vincenty that because Vincenty’s DNA was discovered
at the scene, the detectives “have the charges.”
Vincenty indicated that he was confused and denied any involvement in
the attack. Shortly thereafter, the following exchange occurred:
Detective Mera: We have you with the DNA and we have you . . . with gun charges, right?

Vincenty: Ah huh.

Detective Mera: Okay.

Vincenty: Correct.

Vincenty nonetheless continued to deny any involvement in the robbery.
Detective Mera then told Vincenty that they “presented the evidence to the
judge,” who “put the charges in.” Vincenty still indicated that he was
“surprise[d] that [the detectives] ha[d] . . . evidence against [him].” Vincenty
was then asked whether he knew the second man in the video:
Detective Mera: [W]e would like to know who you were with that night.

Vincenty: Ah, I don’t know about him.

Detective Mera: Okay. You don’t know him?

Vincenty: Do you understand me? I was walking, but I did not shoot any one [sic].

6

The detectives showed Vincenty a picture of the assailants. Vincenty
told the detectives one of the assailants “looks like [him]” and that he has a
coat similar to one worn by one of the assailants. Detective Mera explained
that they had shown a judge all of the evidence because in order for them to
speak with Vincenty, “[they] needed the charges.” The detectives again
attempted to elicit information about the other assailant:
Detective Mera: Who were you with that night?

Vincenty: That was a person from, but I don’t know him very well like that. You understand?

Detective Mera: What’s his name?

Vincenty: Honestly, I don’t know. I met him thru [sic] another friend of mine. Do you understand me?

A few moments later, Detective Mera mentioned that they had charges
against Vincenty. Vincenty then stated that he did not get a letter from a judge
about the charges and asked the detectives what the charges were. The officers
showed Vincenty a list of the charges and explained to Vincenty that he had
been charged with attempted homicide, robbery, and conspiracy to commit
robbery. The detectives then asked Vincenty additional questions, attempting
to elicit further information about the attack. Vincenty denied any
involvement in the robbery but did tell the detectives he lived near the scene of
the crime and “went to the store to buy cigarettes.” Shortly thereafter,
7

Vincenty told the detectives he wanted to talk to a lawyer and expressed
concern that there were charges pending against him.
The detectives continued questioning Vincenty. After the detectives
again showed Vincenty a list of the charges against him and continued to ask
him to provide information about the attack, Vincenty again asked to speak
with a lawyer and indicated that he was both surprised and confused. “I need
to see a lawyer,” Vincenty explained, “because I am confused right now.” The
detectives then acknowledged Vincenty’s desire to speak with a lawyer and
stopped questioning him.
B.
A grand jury indicted Vincenty for first-degree attempted murder,
contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; first-degree armed robbery,
contrary to N.J.S.A. 2C:15-1; second-degree conspiracy to commit armed
robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree
possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39
4(a); and second-degree unlawful possession of a weapon, contrary to N.J.S.A.
2C:39-5(b). Vincenty filed a motion to suppress the statements he made to
Detectives Glackin and Mera. Vincenty argued his statements should be
suppressed because, in his view, the detectives failed to comply with A.G.D.
and failed to cease questioning him when he first asked to speak with a lawyer.
8

The trial court conducted a hearing where both Vincenty and Detective
Mera testified. Vincenty testified that he told the detectives he wanted to
speak with a lawyer before they began recording the interview. Detective
Mera, however, testified that Vincenty requested to speak with a lawyer at the
end of the interrogation only. The State indicated that it would not seek to
admit any statements Vincenty made to the detectives after he first requested
to speak with a lawyer, as the State conceded that any statements made after
that point should be suppressed.
The trial court found that Vincenty’s reliance on A.G.D. was
“misplaced.” In the trial court’s view, Vincenty was informed of the charges
pending against him “immediately after he signed the waiver and before he
made any statements with reference to the incident.” The trial court found
Detective Mera’s testimony -- but not Vincenty’s -- credible and found that
Vincenty did not ask to speak with a lawyer before the detectives began
recording the interview. Under the totality of the circumstances, the trial court
found that, until Vincenty requested to speak with a lawyer, his statements
were the result of a “knowing, voluntary and intelligent waiver of his Miranda
rights.” The trial court held that any statements Vincenty made after he first
requested to speak with a lawyer would not be admissible during the State’s
case-in-chief.
9

Vincenty entered into a plea agreement with the State whereby he
pleaded guilty to first-degree attempted murder and reserved his right to appeal
the denial of his suppression motion. Under the agreement, the State
recommended a sentence of ten years’ imprisonment with an eighty-five
percent parole disqualifier. The trial court sentenced Vincenty in accordance
with the State’s recommendation.
C.
Vincenty appealed the trial court’s denial of his motion to suppress.
Vincenty argued he was not informed of the charges filed against him when he
was read his Miranda rights and, thus, the detectives failed to comply with
A.G.D. An Appellate Division panel affirmed the trial court’s denial of
Vincenty’s motion to suppress. The panel held that the detectives did not
violate A.G.D. because, in its view, the record supported the trial court’s
finding that Vincenty “was apprised of the charges pending against him before
he decided to cooperate with the investigation and provide self-incriminating
information.”
We granted Vincenty’s petition for certification. 232 N.J. 278 (2018).



10

II.
A.
Vincenty argues his motion to suppress should have been granted.
Vincenty claims the detectives failed to inform him of the charges pending
against him when he was read his Miranda rights. That failure, Vincenty
claims, requires the suppression of his statements pursuant to A.G.D.
According to Vincenty, the Appellate Division erroneously interpreted his
argument as raising a factual dispute when the detectives’ compliance with
A.G.D. is strictly a question of law.
B.
As a threshold matter, the State argues that the trial court’s denial of
Vincenty’s motion to suppress, even if erroneous, was harmless. In the State’s
view, Vincenty did not offer any inculpatory statements to the detectives, and
the denial of his motion to suppress therefore could not have influenced
Vincenty’s decision to plead guilty. Thus, according to the State, we should
summarily affirm the Appellate Division’s judgment or dismiss Vincenty’s
appeal as improvidently granted.
As to the error alleged by Vincenty, the State argues Vincenty
knowingly and intelligently waived his Miranda rights when he agreed to
speak with the detectives because the detectives informed him of the pending
11

charges. The State argues we should apply a totality-of-the-circumstances
analysis, rather than the bright-line, “rigid and inflexible constitutional rule” it
claims Vincenty is advancing.
III.
A.
When we review a trial court’s denial or grant of a motion to suppress,
we “defer to the factual findings of the trial court so long as those findings are
supported by sufficient evidence in the record.” State v. Hubbard, 222 N.J.
249, 262 (2015). We disregard, however, findings of fact that are clearly
mistaken. Ibid. We review de novo any legal conclusions reached by the trial
court. Id. at 263.
B.
The common law has granted individuals the “right against self
incrimination since colonial times.” A.G.D., 178 N.J. at 66. The Legislature
has since codified the right “in our statutes and rules.” State v. P.Z., 152 N.J.
86, 101 (1997) (citing N.J.S.A. 2A:84A-19; N.J.R.E. 503). The importance of
the common law right “is not diminished by the lack of specific constitutional
articulation.” Ibid. Rather, the “common law privilege against self
incrimination affords greater protection to an individual than that accorded
12

under the federal privilege.” In re Grand Jury Proceedings of Guarino, 104
N.J. 218, 229 (1986).
We have provided that protection because the right against self
incrimination is “an integral thread in the fabric of [the] common law,” State v.
Hartley, 103 N.J. 252, 286 (1986), and “one of the most important protections
of the criminal law,” State v. Presha, 163 N.J. 304, 312 (2000). Accordingly,
we maintain “an unyielding commitment to ensure the proper admissibility of
confessions.” State v. Reed, 133 N.J. 237, 252 (1993) (quoting Hartley, 103
N.J. at 301 (Handler, J., concurring in part and dissenting in part)).
Individuals, as holders of the right, may waive the right against self
incrimination. Presha, 163 N.J. at 313. Law enforcement officers must first
advise a suspect of the right against self-incrimination before attempting to
obtain a waiver of the right. State v. Hreha, 217 N.J. 368, 382 (2014) (citing
Miranda v. Arizona, 384 U.S. 436, 444 (1966)). A waiver of the right against
self-incrimination must be knowing, intelligent, and voluntary. Reed, 133 N.J.
at 250-51. The State carries the burden of proving “beyond a reasonable doubt
that the suspect’s waiver was knowing, intelligent, and voluntary in light of all
the circumstances.” Presha, 163 N.J. at 313.


13

IV.
A.
In A.G.D., detectives questioned the defendant at his home about
allegations of sexual abuse. 178 N.J. at 59. The detectives did not tell the
defendant that a warrant for his arrest had been issued. Ibid. The defendant
agreed to accompany the detectives to the prosecutor’s office for further
questioning. Ibid. The defendant confessed to the alleged sexual abuse and
was subsequently convicted of related offenses. Id. at 60-61.
Before trial, the defendant moved to suppress his confession, and the
trial court denied the motion. Id. at 61. On appeal, the Appellate Division
found that the defendant’s right to counsel was not triggered because an
indictment had not been issued. Ibid. The panel remanded for a new Miranda
hearing because, on the record presented, the Appellate Division could not
address the defendant’s claim that his confession was coerced. Id. at 61-62.
On remand, the trial court again denied the defendant’s suppression motion,
and this Court granted his petition for certification. Id. at 62.
This Court held that the defendant’s confession should have been
suppressed, id. at 69, because 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
14

rights,” id. at 68. If suspects are not informed that a criminal complaint or
arrest warrant has been filed against them, they necessarily lack “critically
important information” and thus “the State cannot sustain its burden” of
proving a suspect has knowingly and intelligently waived the right against
self-incrimination. Ibid. Because the detectives failed to inform the defendant
that an arrest warrant had been issued, the defendant in A.G.D. was simply
unable to execute a knowing and intelligent waiver of his right against self
incrimination. Ibid.
A.G.D. thus 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. That information should not be
woven into accusatory questions posed during the interview. The State may
choose to notify defendants immediately before or after administering Miranda
warnings, so long as defendants are aware of the charges pending against them
before they are asked to waive the right to self-incrimination.
B.
Vincenty’s interrogation is precisely what A.G.D. prohibits, and it
substantiates A.G.D.’s holding. That is to say, Vincenty’s interrogation
illustrates that suspects cannot knowingly and intelligently determine whether
15

to waive their right against self-incrimination if, when making that
determination, they have not been informed of the charges filed against them.
Unaware that charges had been filed against him, Vincenty appeared
willing and ready to waive his right against self-incrimination. He signed a
form acknowledging that he understood his rights, spoke with the detectives,
and did not request to speak with a lawyer. However, when Vincenty was
informed of the criminal charges filed against him, everything changed. He
appeared shocked and surprised. He seemed to understand for the first time
the heightened magnitude of the interrogation. He instructed the detectives
that he wanted to speak with a lawyer. His willingness to speak with the
detectives dissipated. He was no longer willing to waive his right against self
incrimination.
As that chain of events demonstrates, Vincenty’s ability to knowingly
and intelligently decide whether to waive his right against self-incrimination
was fundamentally altered when he was informed of the criminal charges filed
against him. Rather than inform Vincenty fully of the charges at the outset,
the detectives told him at various points during the interrogation that some
type of charges were filed against him. It was not until late in the
interrogation -- well after the detectives read Vincenty his rights and asked
him to waive his right against self-incrimination -- that the detectives detailed
16

the actual charges Vincenty was facing. At the point when the detectives
asked Vincenty to waive his right against self-incrimination, they failed to
inform him of the specific criminal charges filed against him. Withholding
that “critically important information” deprived Vincenty of the ability to
knowingly and voluntarily waive the right against self-incrimination.
Stated simply, the State failed to carry its burden of proving beyond a
reasonable doubt that Vincenty knowingly and intelligently waived his right
against self-incrimination.
C.
The trial court and Appellate Division erred in holding Vincenty
knowingly and intelligently waived his right against self-incrimination. The
State, however, argues this Court should find the error harmless because, in its
view, Vincenty’s statements to the detectives were not inculpatory and thus
could not have influenced his decision to plead guilty. We decline the State’s
invitation to find the error harmless.
Vincenty expressly reserved his right to appeal the denial of his
suppression motion in the plea agreement. On appeal, the State opposed
Vincenty’s legal arguments on the merits and did not argue harmless error.
We find that the State has waived the harmless error argument -- and we
decline to exercise our discretion to reach an issue not raised before the
17

Appellate Division. See State v. Legette, 227 N.J. 460, 467 n.1 (2017)
(declining to consider an argument raised “for the first time on appeal”).
Nor would consideration of harmless error change matters here because
the State’s arguments are not persuasive. Some of Vincenty’s statements
could be fairly characterized as inculpatory. When speaking with the
detectives, Vincenty indicated that he knew the other assailant and
acknowledged that he looked like one of the assailants. Those statements
alone could be viewed as inculpatory and militate against a finding of harmless
error.
The State’s contention that the denial of Vincenty’s suppression motion
could not have influenced his decision to plead guilty, moreover, is directly
refuted by Vincenty’s actions. Vincenty reserved the right to appeal the denial
of his suppression motion in the plea agreement. He exercised that right and,
when the trial court’s decision was affirmed, filed a petition for certification
with this Court. Vincenty’s very conduct reveals that his decision to plead
guilty was influenced by the trial court’s suppression ruling.

Outcome: Because Vincenty’s motion to suppress should have been granted, we
reverse the judgment of the Appellate Division and remand for further
proceedings consistent with this opinion.

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