State v. Abronski

The opinion of the Court was delivered by STEIN, J. Defendant was convicted of first-degree aggravated sexual assault and second-degree sexual assault. He was sentenced to fifteen years imprisonment for the first-degree offense and to a concurrent seven-year term for the second-degree offense. The Appellate Division affirmed his convictions. 281 N.J.Super. 390, 403, 657 A.2d 1224 (1995). We affirm the judgment of the Appellate Division substantially for the reasons stated in its opinion. As in State v. Knight, 145 N.J. 233, 678 A.2d 642 (1996), also decided today, the primary issue in this case is the retroactivity of a new rule of criminal procedure. In State v. Reed, 133 N.J. 237, 261-62, 627 A.2d 630 (1993), we held that “[w]hen, to the knowledge of the police, [the attorney of a suspect in custody] is present or available, and the attorney has communicated a desire *267 to confer with the suspect, the police must make that information known to the suspect before custodial interrogation can proceed or continue.” Furthermore, “the failure of the police to give the suspect that information renders the suspect’s subsequent waiver of the privilege against self-incrimination invalid per se.” Id. at 262, 627 A.2d 630. We decided Reed after defendant,. Louis Abronski, had been tried and convicted of sexual assault of his girlfriend’s nine-year-old daughter, but before the Appellate Division ruled on defendant’s appeal. Defendant contends, based on our decision in Reed, that his tape-recorded confession was improperly used against him at trial because an attorney, retained by defendant’s mother immediately after defendant was arrested, was not permitted to speak with defendant when he telephoned police headquarters during the interrogation. We agree with the Appellate Division that Reed does not apply retroactively to defendant’s case, and that the trial court therefore properly admitted the confession into evidence. See 281 N.J.Super. at 402, 657 A.2d 1224. Three factors are considered in determining whether a new rule of criminal procedure is to be applied retroactively: “(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.” State v. Nash, 64 N.J. 464, 471, 317 A.2d 689 (1974). In Knight, supra, our analysis of those factors led us to conclude that the rule of State v. Sanchez, 129 N.J. 261, 609 A.2d 400 (1992), should be granted limited retroactivity. 145 N.J. at 256-59, 678 A.2d 642. Our decision not to afford Reed such retrospective effect stems from our analysis of the second and third Nash factors in this case. As the Appellate Division recognized, see 281 N.J.Super. at 401-02, 657 A.2d 1224, the context in which the Reed rule is implicated frequently arises. See, e.g., People v. McCauley, 163 Ill.2d 414, 206 Ill.Dec. 671, 676-82, 645 N.E.2d 923, 928-34 (1994) (citing and discussing cases); Reed, supra, 133 N.J. at 248-49, 627 *268 A.2d 630 (citing cases). As a result, applying Reed retroactively would undermine the validity of a relatively large number of convictions and consequently burden the criminal justice system with numerous retrials. Moreover, in cases similar to this, state law enforcement agents reasonably could rely on pre-Reed law, see Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), in declining to interrupt the interrogation of a suspect to inform the suspect that an attorney was seeking to contact him. As the Appellate Division observed, “when the police interrogated Abronski, Moran represented the applicable law and the police justifiably relied on and followed it.” 281 N.J.Super. at 402, 657 A.2d 1224. We concur fully with the Appellate Division’s application of the Nash factors in this case and its conclusion that Reed should not be applied retroactively. See 281 N.J.Super. at 399-402, 657 A.2d 1224; cf. Jones v. State, 528 So.2d 1171, 1175-76 (Fla.1988) (declining to give retroactive effect to Haliburton v. State, 514 So.2d 1088 (Fla.1987), which adopted rule analogous to that set forth in Reed, supra). Therefore, Reed will apply only to cases in which the defendant’s custodial confession occurred after July 23, 1993, the date on which Reed was decided. Judgment affirmed. For affirmance — Justices HANDLER, POLLOCK, O’HERN, GARIBALDI, STEIN and COLEMAN — 6. Opposed — None.