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(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

STATE OF NEW JERSEY V. LOUIS ABRONSKI (A-86-95)

(NOTE: This is a companion case to State of New Jersey v. Curtis Knight, also decided today.)

Argued March 25, 1996 -- Decided July 11, 1996

STEIN, J., writing for a unanimous Court.

    As in State v. Knight, also decided today, the primary issue in this case is the retroactivity of a new rule of criminal procedure.

    Louis Abronski was convicted of first-degree aggravated sexual assault and second-degree sexual assault of his girlfriend's nine-year-old daughter. He was sentenced to fifteen years imprisonment for the first-degree offense and to a concurrent seven-year term for the second-degree offense.

    Abronski appealed the convictions, contending that, based on State v. Reed, his tape-recorded confession was improperly used against him at trial. According to Abronski, an attorney retained by Abronski's mother immediately after he was arrested was not permitted to speak with Abronski when the attorney telephoned police headquarters during the interrogation.

    In Reed, this Court held that when, to the knowledge of the police, the attorney of a suspect in custody is present or available, and the attorney has communicated a desire to confer with the suspect, the police must make that information known to the suspect before custodial interrogation can proceed or continue. The failure of the police to give the suspect that information renders the suspect's subsequent waiver of the constitutional privilege against self-incrimination invalid per se. Reed was decided after Abronski's convictions but before the Appellate Division ruled on his appeal.

    The Appellate Division affirmed Abronski's convictions, finding that Reed did not apply retroactively to this case and that, therefore, the trial court properly admitted Abronski's confession into evidence.

    The Supreme Court granted certification.

HELD:    State v. Reed will not be applied retroactively to this case. Therefore, the trial court properly admitted Abronski's confession into evidence.

1. Three factors (the Nash 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 retroactive application would have on the administration of justice. The decision not to afford Reed retroactive application stems from the analysis of the second and third Nash factors. Because the context in which the Reed rule is implicated frequently arises, 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 in declining to interrupt the questioning of a suspect to inform the suspect that an attorney was trying to contact him. Here, police justifiably relied on and followed pre-Reed law. (pp. 3-4)

2. The Appellate Division appropriately applied the Nash factors to conclude that Reed should not be applied retroactively. 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. (p. 4)

    Judgment of the Appellate Division is AFFIRMED.

    JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and COLEMAN join in JUSTICE STEIN's opinion. CHIEF JUSTICE WILENTZ did not participate.                             SUPREME COURT OF NEW JERSEY
                             A- 86 September Term 1995

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

        v.

LOUIS ABRONSKI,

    Defendant-Appellant.

        Argued March 25, 1996 -- Decided July 11, 1996

On certification to the Superior Court, Appellate Division, whose opinion is reported at 281 N.J. Super. 390 (1995).

Marcia H. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Susan L. Reisner, Public Defender, attorney).

Robin A. Hamett, Special Deputy Attorney General, Acting Assistant Prosecutor, argued the cause for respondent (Joseph F. Audino, Special Deputy Attorney General, Acting Camden County Prosecutor, attorney).

Carol M. Henderson, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Deborah T. Poritz, Attorney General, attorney).

    
    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 (1995). We affirm the judgment of the Appellate Division substantially for the reasons stated in its opinion.
    As in State v. Knight, ___ N.J. ___ (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 (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 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. 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.
    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 (1974). In Knight, supra, our analysis of those factors led us to conclude that the rule of State v. Sanchez, 129 N.J. 261 (1992), should be granted limited retroactivity. ___ N.J. at ___ (slip op. at 27-31). 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, the context in which the Reed rule is implicated frequently arises. See, e.g., People v. McCauley, 645 N.E.2d 923, 928-934 (Ill. 1994) (citing and discussing cases); Reed, supra, 133 N.J. at 248-49 (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.
    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; 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.

    JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and COLEMAN join in JUSTICE STEIN's opinion. CHIEF JUSTICE WILENTZ did not participate.

NO. A-86 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

        v.

LOUIS ABRONSKI,

    Defendant-Appellant.

DECIDED July 11, 1996
Justice Handler PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY DISSENTING OPINION BY