The opinion
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3033-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.M.G.,1
Defendant-Appellant.
______________________________
Submitted February 12, 2024 – Decided March 4, 2024
Before Judges Chase and Vinci.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 19-10-
0125.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Samuel Clark Carrigan, Assistant Deputy
Public Defender, of counsel and on the briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent (Jennifer E. Kmieciak, Deputy Attorney
General, of counsel and on the briefs).
1
The parties' initials are used to protect confidentiality, pursuant to R. 1:38-
3(c)(12).
Appellant filed pro se supplemental briefs.
PER CURIAM
After the trial court granted the State's motion to admit defendant J.M.G.'s
statement given following the administration of Miranda2 warnings and denied
defendant's motions to suppress physical evidence, defendant, a previously
convicted sex offender, entered a guilty plea to first-degree aggravated sexual
assault of A.C.B. when she was less than thirteen years old, N.J.S.A. 2C:14-
2(a)(1). He was sentenced to a fifteen-year term of incarceration to be served
without the possibility of parole under the Jessica Lunsford Act, N.J.S.A. 2C:14-
2(a) and (d).
On appeal, defendant's counseled brief raises the following point for our
consideration:
POINT I
THE COURT ERRED IN GRANTING THE STATE'S
MOTION TO ADMIT DEFENDANT'S PURPORTED
STATEMENTS BECAUSE THE STATE DID NOT
PROVE A KNOWING AND INTELLIGENT
WAIVER OF RIGHTS BEYOND A REASONABLE
DOUBT.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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Defendant's pro se brief presents the following additional arguments for our
consideration:
POINT I
THE COURT ERRED IN NOT GRANTING THE
DEFENDANT['S] MOTION FOR REQUESTING A
FRANKS[3] HEARING AND ALSO NOT
SUPRESSING (SIC) EVIDENCE OBTAINED FROM
[A] DEFECTIVE VERIZON SUBPOENA BASED ON
MISUSE OF EVIDENCE AND PURPOSELY
MISLEADING THE JUDGE WITH
MISSTATEMENTS AND OMISSIONS OF
MATERIAL FACTS CONTAINED WITHIN THE
SEARCH WARRANT AFFIDAVIT AND
SUBPOENA AT QUESTION.
POINT II
THE COURT ERRED IN NOT GRANTING THE
DEFENDANT['S] MOTION FOR SUPRESSION
(SIC) OF EVIDENCE FROM MOBILE
APPLICATION KIK THAT WAS IMPROPERLY
GAINED BY LAW ENFORCEMENT.
Based on our review of the record and the applicable legal principles, we reject
defendant's arguments and affirm.
3
Franks v. Delaware, 438 U.S. 154 (1978).
A-3033-21
3
I.
We glean the following facts from the record and the testimonial hearing
conducted in the trial court during which the only witness presented by the State
was Senior Parole Officer James MacFarlane. Defendant did not produce any
witnesses.
In February 2018, New Jersey State Police Detective Jennifer Amato
joined a youth chatroom on Chat-Avenue.com and adopted an undercover
persona of a thirteen-year-old girl. A user named "john.01" sent Amato a private
message. Amato told "john.01" she was a thirteen-year-old girl from New
Jersey. "john.01" described himself as a sixteen-year-old boy from the Cherry
Hill area who was 5'9", 160 pounds, athletic build, with brown eyes and hair and
a "9" d**k." After Amato told "john.01" she was thirteen years old, "john.01"
asked her how many boys she kissed, whether she was ready to do anything
more than kissing, whether she shaved her genitals and what size bra she wore.
Amato then asked if "john.01" had a Kik Messenger account and provided
him with her username. Shortly thereafter, Amato received a message on Kik
from an account with the username "jonnoneya" and a display name of "Jonny
Duh." After confirming that "Jonny Duh" was "john.01" on Chat-Avenue,
Amato sent him a non-sexual image of an undercover officer posing as a
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thirteen-year-old girl. "Jonny Duh" then sent a photo of himself. The photo
depicted "a white male wearing only boxer briefs," but the camera flash
obscured his face. "Jonny Duh" then sent a picture of his penis, followed by a
picture of himself which showed his face and depicted an individual who was
approximately fifty years old. He also asked Amato for a picture of her in her
bra.
On February 28, 2018, Amato sent a preservation request to Chat-Avenue
relating to chat activity of "@john.01" between the times of 2:06 p.m. and 3:31
p.m. on February 27, 2018. Chat-Avenue responded and indicated they had no
information as to that usernames at that time but did have an individual with the
handle "John.01"; however, the user's activity did not match the times requested.
Chat-Avenue provided an IP address for "John.01." The IP address geolocated
to Medford and was serviced by Verizon. Verizon identified the IP address as
belonging to J.G. in Medford Township. Amato, who continued to communicate
with "Jonny Duh" over Kik Messenger, searched law enforcement databases for
J.G. She learned J.G. had a son, defendant. Amato also learned defendant is a
registered sex offender from Burlington County.
Amato then contacted defendant's parole officer, Ben Devuyst, who
confirmed defendant was a registered sex offender and that defendant was the
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individual in the pictures provided by "Jonny Duh." Amato continued to
communicate with "Jonny Duh" into June of 2018. The State then applied for,
and was granted, a search warrant for defendant's father's residence in Medford
Township. Police executed the search warrant on June 12, 2018.
Officer MacFarlane testified at the Miranda hearing that he had been a
parole officer for six years and in June 2018 he was assigned to defendant. On
June 12, he went to defendant's residence with other officers after receiving
information defendant may have been violating conditions of his parole
supervision. After the officers were let into the residence, Officer MacFarlane
explained to defendant the allegations concerning his violation of parole
conditions. He then handcuffed defendant. At that time, he removed a Miranda
card from his tactical vest pouch and read defendant his rights. A copy of a
similar Miranda card was admitted into evidence. Officer MacFarlane testified
defendant was properly informed of his protections afforded under Miranda. He
stated:
The [Miranda] warnings would be number one, that
[defendant] would have the right to remain silent and
refuse to answer any questions. Number two, anything
that he would say would be used against him in a court
of law. Number three, that he have the right to consult
with an attorney at any time and have him or her present
before and during questioning. Number four, that if he
could not afford an attorney, one would be provided, if
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he so decided, prior to any questioning. And number
five, that a decision to waive these rights is not final
and he may withdraw his waiver whenever he wished,
before or during the questioning. And then I confirmed
with [defendant] that he was read his Miranda rights, he
had an understanding of those rights and that he would
like to waive those rights and speak with me.
Officer MacFarlane further testified he verbally confirmed defendant heard his
rights. He never threatened or struck defendant, and from his perspective
defendant understood and then verbally waived his rights.
After defendant waived his rights, the officers inspected defendant's room
and observed two cell phone chargers near defendant's bed connected to a surge
protector. Officer MacFarlane stated he was concerned because the terms of
defendant's parole barred him from using or possessing any internet-capable
device without prior approval and at that time defendant only had one approved
device. The officers found the approved device in defendant's bedroom.
The officers then transported defendant to the Medford Township Police
Department where they spoke with other task force officers, including members
of the New Jersey State Police Digital Technology Investigations Unit.
According to Officer MacFarlane, while at the Medford police station, Sergeant
Cullen from the Parole Board went to the vehicle where defendant had been
A-3033-21
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placed and re-confirmed that he understood his Miranda rights and that he was
being arrested.
Officer MacFarlane then drove defendant to his father's house where a
search warrant was to be executed. Once the search was completed and Officer
MacFarlane learned that a laptop and cell phone that matched the charger in
defendant's room were recovered, he asked defendant, who was still handcuffed
and sitting in MacFarlane's vehicle, if he was familiar with those items and if
they belonged to him. Defendant confirmed they did. His father also confirmed
defendant was the sole owner and user of the cell phone.
The officers and defendant returned to Medford Police Station, and
defendant was placed in an interview room and re-Mirandized. At that point,
defendant declined to give a statement. On cross-examination, Officer
MacFarlane testified that, although he had a pen, he did not have defendant sign
the Miranda card, and although he had a smart phone, he did not record the
reading of defendant's Miranda rights.
The motion judge found Officer MacFarlane's testimony to be credible,
indicating his "tone and demeanor on direct and cross-examination" led the court
to believe that he had no intent to deceive it. Additionally, he was found to have
"a good recollection of the facts" and "direct knowledge of his interactions with
A-3033-21
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defendant." The motion court also held the officer's testimony was "reasonable"
and "he did not make any inconsistent or contradictory statements."
Detectives conducted a forensic review of the cell phone recovered at
defendant's father's house and discovered several social-media-networking
applications, including Kik Messenger. In addition, they located the images sent
to Amato. During a complete forensic examination of the cell phone, police
found a thumbnail image that appeared to depict child pornography.
The forensic examination also revealed a chat on Kik Messenger between
"Jonny Duh" and another individual with the handle "~Furry Girl~." "~Furry
Girl~" was later identified as A.C.B., an eleven-year-old girl from Michigan.
The conversations occurred in June 2018 while "Jonny Duh" was also
communicating with Amato. "Jonny Duh" asked A.C.B. how old she was, and
she informed him she was eleven years old. "Jonny Duh" asked A.C.B. multiple
sexually explicit questions, and sent her a picture of a penis, which was later
determined to be the same image he sent to Amato and found on his device.
"Jonny Duh" also asked A.C.B. to send him sexually explicit photographs via
Kik Messenger.
Police later recovered various images of A.C.B. "in which she exposed
her breasts, sat on a toilet with her legs spread exposing her vagina and
A-3033-21
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penetrated her vagina with her finger." A.C.B. was located in Michigan and
interviewed by law enforcement. She told police defendant began chatting with
her on another social-media platform, Discord, before transitioning over to Kik
Messenger. Defendant then began pressuring A.C.B. to send him nude pictures.
A.C.B. confirmed she and defendant exchanged nude photographs of
themselves. She also confirmed "that she photographed herself inserting her
finger into her vagina and sent the image to defendant pursuant to . . . defendant's
instructions."
II.
On appeal, defendant argues the trial court erred in finding his waiver of
Miranda rights prior to his initial statement was voluntary, knowing, and
intelligent. He argues the State did not prove beyond a reasonable doubt that he
waived his Miranda rights because he did not sign a Miranda form and the
waiver of his rights was not recorded. Although not argued below, defendant
argues his statement should have been suppressed because the police could have
waited until they got back to the police station to record his interrogation.
To admit a statement obtained during a custodial interrogation , "the State
must 'prove beyond a reasonable doubt that the suspect's waiver was knowing,
intelligent, and voluntary in light of all the circumstances.'" State v. Tillery, 238
A-3033-21
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N.J. 293, 316 (2019) (quoting State v. Presha, 163 N.J. 304, 313 (2000)). The
court considers factors including the defendant's "age, education, intelligence,
previous encounters with law enforcement, advice received about [their]
constitutional rights, the length of detention, the period of time between
administration of the warnings and the volunteered statement, and whether the
questioning was repeated and prolonged in nature or involved physical or mental
abuse." State v. Timmendequas, 161 N.J. 515, 614 (1999).
A waiver of a defendant's Miranda rights must not be the product of police
coercion, but instead must be knowing, intelligent, and voluntary based on "the
totality of the circumstances surrounding the custodial interrogation." State v.
A.M., 237 N.J. 384, 398 (2019). The evidence must establish beyond a
reasonable doubt the statement was given voluntarily and not because the
defendant's will was overborne. State v. Knight, 183 N.J. 449, 462 (2005)
(citing State v. Galloway, 133 N.J. 631, 654 (1993)).
Generally, on appellate review, a trial court's factual findings on a motion
to suppress a defendant's statement to the police will be upheld when they are
supported by sufficient credible evidence in the record. State v. S.S., 229 N.J.
360, 374 (2017). We do not disturb the motion court's factual findings unless
those findings are so clearly mistaken as to demand intervention in the interests
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of justice. Ibid. This is particularly true where the findings of the trial judge
"are substantially influenced by his opportunity to hear and see the witnesses
and to have the 'feel' of the case, which a reviewing court cannot enjoy." State
v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). However, we owe no deference to the motion court's conclusions of
law, which are reviewed de novo. A.M., 237 N.J. at 396.
Contrary to defendant's arguments on appeal, there is no requirement that
Officer MacFarlane's testimony be corroborated by video or other evidence. At
the time they executed the search warrant, there was no indication that police
were aware of the facts that would later give rise to the aggravated sexual assault
charge involving A.C.B. The motion judge had the ability to observe Officer
MacFarlane and was aware that there was no video or signed Miranda card.
Additionally, defendant did not present any witnesses to counter the State's
credible witness. In short, we defer to the motion court's credibility and factual
findings, and thus affirm the order admitting defendant's statement and
defendant's conviction for the aggravated sexual assault of A.C.B. Defendant's
arguments go more to the weight of such evidence rather than its admissibility.
Defendant asserts for the first time on appeal that a recording was required
under Rule 3:17 because the officers could have held defendant in the police
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station the entire time. That Rule sets forth electronic recordation requirements
for custodial interrogations of those charged with certain enumerated serious
offenses. State v. Hubbard, 222 N.J. 249, 263 (2015). Significantly, the
electronic recordation requirement only applies to "custodial interrogations
conducted in a place of detention." R. 3:17(a). "Place of detention" under the
Rule means:
a building or a police station or barracks that is a place
of operation for a municipal or state police department,
county prosecutor, sheriff or other law enforcement
agency, that is owned or operated by a law enforcement
agency at which persons are or may be detained in
connection with criminal charges against those persons.
Here, defendant was Mirandized at his house when he was first placed in
custody. Officers asked defendant if he understood his rights while in the police
car. This clearly does not constitute a "place of detention" as expressly defined
by Rule 3:17. Under these circumstances, the State is not required to prove that
one of the seven enumerated exceptions to electronic recordation in Rule 3:17(b)
applies because the questioning did not occur in a "place of detention" as defined
in paragraph (a).
Moreover, after the execution of the search warrant, defendant was
brought back to the station so a formal recorded statement could be taken as part
of the continued investigation. At this point he exercised his Fifth Amendment
A-3033-21
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right to remain silent, which the officers scrupulously honored. After hearing
firsthand from the parole officer, the motion judge fully credited the officer's
testimony that he verbally advised defendant of his Miranda rights before
questioning him. We give deference to the trial judge's factual findings based
on his opportunity to hear and see the witness. There is no basis to jettison these
factual findings based on defendant's argument that Rule 3:17 required
electronic recordation of his statements at his father's residence.
III.
When a defendant challenges the veracity of a search warrant affidavit, a
Franks hearing is required "where the defendant makes a substantial preliminary
showing that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included . . . in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause." 438
U.S. at 155-56. The defendant "must allege 'deliberate falsehood or reckless
disregard for the truth,' pointing out with specificity the portions of the warrant
that are claimed to be untrue." State v. Howery, 80 N.J. 563, 567 (1979)
(quoting Franks, 438 U.S. at 171).
Only where a defendant also establishes "the allegedly false statement
[was] necessary to the [issuing judge's] finding of probable cause, [does] the
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Fourth Amendment require[] that a hearing be held at the defendant's request."
State v. Desir, 245 N.J. 179, 196 (2021) (quoting Franks, 438 U.S. at 155-56).
"These allegations should be supported by an offer of proof including reliable
statements by witnesses." Howery, 80 N.J. at 567 (citing Franks, 438 U.S. at
171). Where the defendant fails to make this substantial preliminary showing,
"no hearing is required." Franks, 438 U.S. at 172. "[A] Franks hearing is not
directed at picking apart minor technical problems with a warrant application; it
is aimed at warrants obtained through intentional wrongdoing by law
enforcement agents." State v. Broom-Smith, 406 N.J. Super. 228, 240 (App.
Div. 2009).
A defendant may also challenge a warrant affidavit on grounds the affiant
made a material omission in the application. State v. Marshall, 148 N.J. 89, 193
(1997) (stating "[m]aterial omissions in the affidavit may also invalidate the
warrant"). The Franks hearing "requirements apply where the allegations are
that the affidavit, though facially accurate, omits material facts." State v.
Stelzner, 257 N.J. Super. 219, 235 (App. Div. 1992).
We review a trial court's decision denying a Franks hearing for an abuse
of discretion. Broom-Smith, 406 N.J. Super. at 239. An abuse of discretion will
be found where the "decision [was] made without a rational explanation,
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inexplicably departed from established policies, or rested on an impermissible
basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original)
(quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
Defendant's claim that a remand is mandated for a Franks hearing is
unsupported by a credible showing that the detectives made false
misrepresentations or material omissions in their affidavit. Defendant argues
the search warrant contained a material misstatement because Chat-Avenue gave
Detective Amato information for "John.01" not "john.o1." He further claims the
IP address of his father's house was obtained for the wrong "John.01."
The affidavit for the search warrant reflected Detective Amato's chatroom
conversations and that the investigation led to defendant's father's house. Based
on the totality of the circumstances, the motion court was "unpersuaded that the
inaccuracy between 'John.01' and 'john.01' represented either intentional
wrongdoing or reckless disregard for the truth. There [was] no credible evidence
presented to support the argument that the affidavit's interchangeable uses of
usernames were [n]either a reckless disregard for the truth nor intentional
wrongdoing."
In addition, the motion court found a hearing "is not necessary when
probable cause exists even after the alleged false statements are excised."
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Significantly, the affidavit stated the same IP address was used by "jonnoneya"
to access Kik Messenger. Detective Amato continued to communicate with
"jonnoneya" on Kik Messenger and he sent her pictures of himself. Officers
were "able to confirm that the photographs [Detective Amato] received were of
[defendant]," and although the target address was not defendant's registered
address with the Parole Board, Officer DeVuyst "believe[d] he [was] staying at
the target location and using devices there to commit the crime of Attempted
Obscenity for Persons under 18." It is immaterial whether information from
Chat-Avenue was or was not included in the affidavit because there was still
ample probable cause to support the search warrant for defendant's father's
residence.
Nor was a Franks hearing required because the affidavit omitted
information that the Kik Messenger account for "jonnoneya" was also linked to
a Comcast account subscribed to by another person at an address in Glassboro.
The fact that the Kik account was linked to additional IP addresses does not
diminish the probable cause to search defendant's father's residence. This is
especially so because the search-warrant affidavit stated that the IP address
linked to defendant's father's residence was used by "jonnoneya" to access Kik
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Messenger on February 27, 2018—the date Detective Amato began chatting
with "Jonny Duh."
IV.
Defendant's argument that the State should have secured a wiretap order
to obtain his subscriber information is without merit as this issue has already
been decided by our Supreme Court in State v. Reid, 194 N.J. 386, 401 (2008).
There, the Court held subscriber information kept by an Internet Service
Provider is constitutionally protected but can be lawfully obtained with a grand
jury or trial subpoena, as was done here. Ibid.
To the extent we have not specifically addressed any remaining
arguments, it is because we find them to be without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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