New Jersey Law Journal

Prosecutorial Misconduct:
Failure To Read Miranda Rights Leads To Reversal of Officer's Sex Conviction

Sandy Lovell
May 23, 2000 

Concluding that the Union County, N.J., Prosecutor's Office violated a policeman's rights by deliberately failing to issue a Miranda warning before questioning him, a New Jersey appeals court has reversed his sexual assault conviction. 

The Appellate Division ruled on May 12 in State v. Sosinski, A-5279-98T3, that the actions of two assistant prosecutors constituted "egregious conduct." The court ordered a new trial. 

"Such misconduct offends our sense of justice and fair play," wrote Judge Irwin Kimmelman, joined by Sylvia Pressler and James Ciancia. "It was a deliberate and outrageous attempt on the part of the assistant prosecutors to ensnare defendant by depriving him of his fundamental rights." 

The court also found that the assistant prosecutors' actions violated Rule of Professional Conduct 3.8. That rule requires an attorney to "make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel." 

The prosecutor's office has asked the attorney general to seek certification from the state Supreme Court. Chuck Davis, a spokesman for the Attorney General's Office, says that decision has not been made. 

According to the opinion, Deputy First Assistant Prosecutor Richard Rodbart and Investigations Supervisor David Hancock had instructed Lieut. Edward Johnson not to give a Miranda warning when he questioned Linden Police Officer James Sosinski. 

In that way, Sosinski would not consider himself under arrest. Sosinski was convicted in December 1998 on charges of endangering the welfare of a child, sexual assault, official misconduct and criminal sexual contact. He then was fired. 

Sosinski, who had supervised juveniles sentenced to perform community service, had been accused of fondling and digitally penetrating a 15-year-old girl he was overseeing, and taking suggestive photos of her in July 1997. 

Authorities questioned Sosinski in August 1998 for five to seven minutes without first advising him of his rights, according to the opinion. During the tape-recorded session, Sosinski admitted "taking some of the photos" of the teen-ager. But at trial, he said he only shot one nonincriminating photograph of the girl wearing his police hat, according to the opinion. 

Lieut. Johnson continued with the inquiry after Sosinski had asked to consult a lawyer and a police union representative because Sosinski continued talking, the prosecution contended. The prosecution used the statement about the multiple photographs to impeach the defendant's credibility at trial. 

Union County Superior Court Judge Miriam Span ruled that the authorities had violated Sosinski's Miranda rights. However, she found that his comments constituted a "voluntary statement" that could be used for the limited purpose of impeaching his credibility at trial, though not as direct evidence of guilt. 

But the Appellate Division reversed, stating that the pre-Miranda statements should be excluded in their entirety at a new trial. The pretrial conference is set for May 30 before Union County Superior Court Judge John Triarsi. 

The plaintiff's attorney, Cranford, N.J., solo practitioner Joseph Spagnoli, says the interview was calculated to get his client to talk without making him think he was under arrest, even though the interrogating officer held an arrest warrant in his pocket and Sosinski was not free to leave. 

Sosinski was arrested immediately after the questioning. 

Spagnoli says Johnson stated under oath during a Burris pretrial hearing that the tactic was "a way to dance around Miranda." Since there was no hard evidence at the time against the officer, Spagnoli says, prosecutors hoped to get him to confess. 

"It was a ruse," Spagnoli says. 

Sosinski served four months of his four-year sentence before being released on $10,000 cash bail in July 1999, pending his appeal. He is currently working as a certified public accountant, his lawyer says. 

In a statement, Union County Prosecutor Thomas Manahan characterized the Appellate Division decision as "a substantial departure from existing law as to when a suspect must be afforded Miranda rights." 

And he defends the prosecutors' actions as being consistent with state law. 

"It is our understanding that the determination as to whether Miranda warnings are to be furnished is based on whether a reasonable person in the suspect's position would believe that he or she was not free to terminate the interview and physically leave freely," Manahan stated. 

"This position was then, and continues to be, based upon existing case law including that from the Appellate Division," Manahan added. 

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