NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant appeals from her conviction for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (crack cocaine), and a violation of probation triggered by the conviction, which she was serving for a prior drug possession conviction. During trial, defendant objected to the use and moved to suppress statements she made regarding her recent drug use. Her motion was denied as was her application for a new trial, also based on the admission of the statements.

On appeal she asserts:

We affirm.

These facts are taken from the trial record. After entering a guilty plea, defendant was convicted under Indictment 06-09-0361 of third-degree possession of a CDS. She was sentenced to a non-custodial two year probationary term.

On October 7, 2008, while serving her sentence for that conviction, defendant was arrested at Perkins Family Restaurant, her place of employment, for possession of a CDS. A fellow employee, Katie Lynn Briggs, and defendant were talking when Briggs noticed a clear packet fall from defendant's shirt. Defendant kicked the packet under the counter and went to wait on customers. Briggs instructed another employee to retrieve the packet that had fallen from defendant's pocket. Briggs was given the packet and consulted with the store manager, who decided to call the police. When the police arrived, Briggs handed them the packet containing two small chunks. A field test revealed the substance was cocaine.

Officer Steven Buss asked defendant to step into the manager's office in the rear of the restaurant. He held up the baggie of cocaine and asked her if she knew what it was. Defendant stated she did not. Officer Buss repeated his question and defendant identified the baggie was crack. He then read defendant her Miranda1 rights. Defendant agreed she would speak to Officer Buss and explained the substance was found by someone else who was now trying to get her in trouble. Officer Buss for a third time asked defendant if she knew what was in the baggie. Defendant identified the substance as crack, adding she knew the baggie contained crack because she "had used it in the past." Officer Buss asked defendant the last time she had used crack and she replied "about two days ago." Defendant added she had ingested Vicodin, which was not prescribed for her, the day before. Defendant also asserted the baggie did not belong to her because "she wouldn't be stupid enough to bring it to work." Defendant was arrested and charged under Indictment 09-03-0075, with CDS possession.

Prior to trial, defendant moved to suppress her statements to Officer Buss. Following an evidentiary hearing wherein Officer Buss testified, the court denied the motion concluding the initial inquiry regarding the substance did not require the administration of Miranda warnings. Thereafter, defendant was properly Mirandized. The court determined defendant's statements were knowingly and voluntarily made. Finally, the court rejected defendant's argument that the statements should be barred from evidence because the interview was not recorded.

Trial was held over four days. Defendant again moved to bar the use of her statement regarding prior drug use. The court denied the motion, but gave the jury an instruction limiting the use of the evidence.

The jury convicted defendant and the court denied her motion for a new trial. Defendant was sentenced to one year probation and 270 days in the Warren County Correctional Center (WCCC). Defendant was then also found guilty of violating her probation, which she was serving for the conviction under Indictment 06-09-0361. On the probation violation, the court sentenced defendant to a concurrent period of 270 days at the WCCC and two years probation.2 Additionally, a substance evaluation was ordered and requisite penalties and assessments imposed.

Defendant argues she was not properly Mirandized prior to questioning and therefore, her motion to suppress was improperly denied. Further, she maintains the police interrogation was improper and ignored the requirement that her post-Miranda interrogation be recorded. We are not persuaded.

Miranda warnings, triggered when an individual is taken into custody and subjected to questioning, State v. Stott, 171 N.J. 343, 364 (2002), are deemed necessary "due to the pressure inherent in an `incommunicado interrogation of individuals in a police-dominated atmosphere[.]'" Ibid. (quoting Miranda, supra, 384 U.S. at 445, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707). Miranda warnings are required when a person is subject to custodial interrogation, meaning "`questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.'" State v. Brown, 352 N.J.Super. 338, 351 (App. Div.) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706), certif. denied, 174 N.J. 544 (2002). "Unless the prosecution demonstrates that the individual was informed of his rights and knowingly, voluntarily, and intelligently waived them, `no evidence obtained as a result of interrogation can be used against him.'" State v. O'Neill, 193 N.J. 148, 168 (2007) (quoting Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726).

Miranda's protection extends only to words or actions of police officers that are "reasonably likely to elicit an incriminating response." State v. Cryan, 363 N.J.Super. 442, 452 (2003). See also State v. Bohuk, 269 N.J.Super. 581, 594 (App. Div.), certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S.Ct. 183, 130 L. Ed. 2d 117 (1994). Thus, the interrogation "`must reflect a measure of compulsion above and beyond that inherent in custody itself.'" Bohuk, supra, 269 N.J. Super. at 594 (quoting Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L. Ed. 2d 297, 307 (1980)).

However, the "unexpected incriminating statements made by in-custody defendants in response to non-investigative questions by the police without prior Miranda warnings are admissible." State v. Mallozzi, 246 N.J.Super. 509, 516 (App. Div.), certif. denied, 126 N.J. 331 (1991). Thus, voluntary statements not elicited through interrogation, which are made by a suspect in custody, are admissible at trial. Bohuk, supra, 269 N.J. Super. at 594. Stated differently, a statement is admissible into evidence when it is "voluntarily blurted out by an accused in custody where the police have not subjected him [or her] to an interrogative technique or where the police are about to begin giving the Miranda warnings." State v. Ward, 240 N.J.Super. 412, 419 (App. Div. 1990). As we explained in Ward, "the police surely cannot be held accountable for the unforeseeable results of their words or actions . . . ." Id. at 418 (quoting Innis, supra, 446 U.S. at 301-02, 100 S. Ct. at 1690, 64 L. Ed. 2d at 308).

Here, the only question posed by Officer Buss prior to the issuance of Miranda warnings was the question referring to the baggie, "Do you know what this is?" Defendant's reply was not incriminating, even though defendant's second response revealed her knowledge of the contents. We agree with the trial judge's analysis that Officer Buss's initial question was an attempt to dispel or confirm suspicions that justify the detention. State v. Smith, 374 N.J.Super. 425, 432 (App. Div. 2005). Although defendant's freedom of action was restrained when she was asked to enter the manager's office, "the stop, due to its duration or other attendant circumstances," could not be "`fairly characterized as the functional equivalent of an arrest.'" Id. at 431 (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3150, 82 L. Ed. 2d 317, 336 (1984)). The question asked was investigatory in nature and not accusatory; it was not an essential part of the investigation, did not call for an admission of guilt and did not elicit any incriminating information. We conclude the protections granted by Miranda were not violated.

Officer Buss then read defendant her rights and asked if she would speak to him. She agreed to do so and admitted she recognized the substance in the baggie. Defendant does not offer evidence to suggest the statements post-Miranda were coerced or involuntary.

We are satisfied defendant's statements were knowingly and voluntarily made and the procedures followed by the police comported with the requirements of Miranda. See also State v. Nyhammer, 197 N.J. 383, 400-01 (2009) (stating "the burden is on the prosecution to demonstrate not only that the individual was informed of [her] rights, but also that [s]he has knowingly, voluntarily, and intelligently waived those rights").

We also confirm that the lack of electronic recording does not invalidate the admissibility of the information obtained in the examination. On January 17, 2006, as a result of the recommendation of the Supreme Court, the Attorney General's Office adopted an updated set of guidelines regarding confessions. See Attorney General Superseding Directive No. 2006-02, Regarding Electronic Recordation of Stationhouse Interrogations, January 17, 2006. In that Directive, the Attorney General amended a prior policy and mandated the video or audio recording of custodial interrogations conducted of persons accused of third degree crimes, effective January 1, 2007. Certainly, Directive No. 2006-02 makes clear that recording the interview is the preferable practice, which may not be blithely ignored. Nevertheless, we discern the officer's investigative inquiry was not an attempt to circumvent the procedures set forth in the directive. No evidence contradicts Officer Buss's recitation of the questions he asked defendant. Given the totality of the circumstances, we conclude the failure to electronically record defendant's statements does not require that they be suppressed.

Defendant next argues the court erred in allowing testimony regarding her prior drug use in contravention of N.J.R.E. 404(b). Defense counsel objected to the inclusion of statements defendant made to Officer Buss regarding her use of crack two days prior and her use of illicit Vicodin. Counsel argued that the evidence should be excluded under N.J.R.E. 403 and 404(b) because it had no probative value and was prejudicial. The court overruled the objections, concluding the statement was not unduly prejudicial and stating it was bound by the decision made in the suppression hearing that the evidence was admissible. The court agreed to provide this curative instruction immediately following the testimony:

The instruction was repeated prior to the jury's commencement of deliberations.

We review a trial court's evidentiary rulings for an abuse of discretion. State v. Hernandez, 170 N.J. 106, 128 (2001); State v. Marrero, 148 N.J. 469, 483 (1997). In the exercise of discretion, the court considered the balancing test of N.J.R.E. 404(b), which provides:

To be admissible under this rule, "other crimes" evidence must be: (1) relevant to a material issue; (2) similar to, and reasonably close in time to, the offense charged; (3) clear and convincing; and (4) the probative value of the evidence must not be outweighed by its potential for prejudice. State v. Cofield, 127 N.J. 328, 338 (1992). As was done here, the trial judge first determined the evidence was admissible and then issued a limiting instruction to the jury, when the other-crimes evidence was admitted and in the final charge. State v. Barden, 195 N.J. 375, 390 (2008).

Defendant's general claims of prejudice are unavailing. The court properly considered the offered testimony and defendant's objections. The statements were material to defendant's knowledge and consciousness of guilt, making the evidence relevant because it had a tendency to prove her guilt of the crimes charged. N.J.R.E. 401; State v. Darby, 174 N.J. 509, 518-20 (2002). Further, the jury was instructed on the appropriate use of the evidence and its duty to consider only the evidence of the crimes charged. See State v. Williams, 190 N.J. 114, 132 (2007). We do not conclude the trial court abused its discretion in allowing the evidence.

Affirmed.