RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4533-18T2 STATE OF NEW JERSEY, Plaintiff-Respondent, v. WALNER SAMEDY, Defendant-Appellant. ___________________________ Submitted August 25, 2020 – Decided September 10, 2020 Before Judges Geiger and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-06- 1036. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Lisa Sarnoff Gochman, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Walner Samedy appeals from a February 1, 2019 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm in part and vacate and remand in part. I. We derive the following facts and allegations from the record. Defendant resided with his girlfriend and her two children in an apartment in Wall Township. On the evening of September 13, 2011, defendant arrived home from work and noticed L.V. 1 babysitting the children; defendant did not know L.V. Defendant sat next to her. L.V. alleged defendant sexually assaulted her by inappropriately touching her buttocks and engaging in sexual intercourse with her without her consent. L.V. reported the incident to the police and identified defendant as her assailant. The day after the incident, police officers went to defendant's workplace and questioned him in the parking lot about the allegations. Defendant was not yet under arrest and had not been administered Miranda2 warnings. 1 We identify the victim by initials to protect her privacy. R. 1:38-3(c)(12). 2 Miranda v. Arizona, 384 U.S. 436 (1966). A-4533-18T2 2 Defendant was born and raised in Haiti and has limited command of the English language. Due to difficulties in communicating with defendant, the officers requested another officer who spoke Haitian-Creole to assist. The interpreting officer did not translate or explain the request for exemplars form to defendant. The police asked defendant for a DNA sample by buccal swab. Without being told he did not have to consent to providing the sample and had the right to consult with an attorney, defendant agreed to the buccal swab. The DNA analysis revealed that the DNA specimen from the buccal swab matched the DNA sample obtained from L.V.'s underwear. In May 2012, a Monmouth County grand jury returned an indictment charging defendant with second-degree sexual assault while using physical force or coercion, N.J.S.A. 2C:14-2(c)(1) (count one); and fourth-degree criminal sexual contact while using physical force or coercion, N.J.S.A. 2C:14-3(b) (count two). On October 5, 2012, defendant was arrested and was unable to post bail. Defense counsel did not move to suppress the DNA evidence obtained through the warrantless buccal ...
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