Jury Reviewed Defendant’s Recorded Invocation of His Right to An Attorney During Trial After Making Contradictory Statements
Appellate Docket No.: A-5901-17
Decided November 24, 2021
Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark.
In a recent unpublished opinion, the Appellate Division of New Jersey reviewed the playing of defendant’s recorded invocation of his right to an attorney during trial after making contradictory statements as to his whereabouts during the night of the incident.
In State v. Blandino, During the ten-day trial, the State presented the testimony of fourteen witnesses, including the victim, K.O. (Katrina), and her two roommates, who found Katrina curled in a fetal position after the attack. Surveillance video footage captured defendant’s minivan traveling down Katrina’s block as she walked toward her apartment building; Katrina entering the building; and defendant following moments later.
Katrina told the jury she did not observe defendant until he was standing next to her outside her apartment door. As she opened the door, defendant pushed Katrina into the apartment, causing her to fall to the floor. Defendant pulled down Katrina’s pants, held her down, and touched her vagina with his finger and penis. Katrina kicked and screamed, and eventually defendant left.
According to the surveillance video, defendant exited the apartment building five minutes after he entered. Police reviewed the surveillance video and issued a “be on the lookout” (BOLO) advisory for defendant’s minivan. The following Sunday, Hoboken police stopped defendant, while he was driving the minivan, which matched the BOLO description.
Defendant was not under arrest, but he waived his Miranda rights and voluntarily agreed to give a statement to members of the Hudson County Prosecutor’s Office (HCPO). Police told defendant they were investigating “something” that had occurred the previous week. Acknowledging he had been in Hoboken on April 23, defendant claimed he only made one stop at the “Hindu store,” which he “always” patronized when his Lyft job brought him to the area. But shortly after defendant was shown photographs of his minivan from the surveillance video, defendant invoked his right to counsel and all questioning about the incident ceased.
At trial, the State introduced defendant’s video-recorded statement, which was made in defendant’s primary language of Spanish. Accordingly, the trial judge provided English transcripts to the jury as listening aids when the statement was played in open court. Part of the recording showed defendant’s invocation of his right to an attorney, after making a contradictory statement as to his whereabouts on the day in question. Defense counsel did not object at the time.
Tried to a jury, defendant Marcos R. Blandino was convicted of forcibly entering a stranger’s apartment in Hoboken around 6:00 p.m. on Sunday, April 23, 2017, and groping her against her will. Following the jury’s guilty verdict on third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), as a lesser-included offense of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (counts one and two), and second-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count three), defendant was sentenced to an aggregate fifteen year prison term. The trial judge imposed concurrent five-year prison terms on the sexual contact offenses to be served prior to a consecutive ten-year prison term on the burglary conviction. Defendant’s sentence on the burglary conviction, only, is subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed, arguing that the inclusion of his invocation of his 5th amendment right to an attorney during the video recording presented to the jury warranted a new trial. The Appellate Division disagreed, finding that because the prosecutor did not use it for closing argument, defense counsel did not object, and because the judge included limiting instructions, there was no plain error warranting reversal of the conviction.
This case is important to understand the importance of remaining silent when talking with police. Here, defendant made what he thought was an innocent statement as to his whereabouts. However, this statement contained a contradiction to the information police had through surveillance. This information can be presented to the jury to destroy his credibility. It is never beneficial to discuss issues with police.
If you or someone you know have been under investigation or charged with any indictable offense or disorderly persons involving a search and/or questioning of police, contact the experienced attorney at Hark & Hark to ensure you are adequately defended, otherwise you could have negative impacts on your case like the defendant above.
At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.
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