September 19, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. I.S. A-5793-09T3

In this appeal, defendant challenges the order entered by the Family Part judge granting custody of one of defendant's twin daughters to her former spouse and the twins' biological father. Defendant contends that in the absence of a finding ofabuse or neglect, the minor child should have been returned to defendant, from whom she had been removed.

We hold that the court's jurisdiction over the matter was appropriately continued, notwithstanding the absence of a finding of abuse or neglect, because the court's continued assistance was required. In addition, because the Division of Youth and Family Services initiated proceedings against defendant and her former spouse under both Title 9 and Title 30, the court's jurisdiction was also appropriately invoked pursuant to Title 30.

We additionally hold that as long as appropriate procedural due process is satisfied and the requisite standards and burdens of proof attendant to each statutory scheme are satisfied, overlapping or hybrid proceedings brought pursuant to both Title 9 and Title 30 will not be set aside. 8-31-11

STATE OF NEW JERSEY VS. COREY MISURELLA A-1439-10T4

In this appeal from a DWI conviction, the State concedes that the right not to be subjected to unreasonable delay applies to an appeal, see State v. Le Furge, 222 N.J. Super. 92, 98 (App. Div.), certif. denied, 111 N.J. 568 (1988), and therefore, to a trial de novo in the Superior Court. We apply the factors established in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and conclude that defendant's speedy trial right was not violated by a 798-day delay from the time he filed his notice of appeal in the Law Division under R. 3:23 until a trial de novo was actually held. 8-26-11

L.M.F. VS. J.A.F., JR. A-0121-10T3

In this appeal from a final domestic violence restraining order, we apply the principles articulated by the Court in J.D. v. M.D.F., _____ N.J. _____ (2011), and conclude the trial court erred in finding the predicate offense of harassment. Theparties are divorced parents. They used text messaging as the primary means of exchanging information about their two children. The domestic violence complaint alleged harassment based on defendant sending plaintiff eighteen text messages over a three-hour period. The content of the messages was not threatening or menacing in any way. We also hold there was insufficient evidence of a history of domestic violence to substantiate that a restraining order was necessary to prevent further abuse as required under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). 8-22-11

STATE OF NEW JERSEY VS. ERIC CLEMENTE RANGEL A-2051-09T3

N.J.S.A. 2C:14-2(a) elevates the offense of sexual assault to first-degree aggravated sexual assault if

an act of sexual penetration of another person is committed under any one of the following circumstances: . . . (3) [t]he act is committed during the commission, or attempted commission . . . of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape ....

We construe the phrase "of another," which modifies "aggravated assault" in section (3), to mean aggravated assault of a third person, such as a spouse or child, committed for the purpose of compelling the submission of the sexual assault victim, and not an aggravated assault on the sexual assault victim, which is covered in another section of the statute. 8-22-11


STATE OF NEW JERSEY VS. PHILLIP JOHNSON A-5686-08T4

The prosecutor committed prejudicial error, contrary to State v. Bankston, 63 N.J. 263 (1973), and State v. Branch, 182 N.J. 338 (2005), when he remarked in summation that the State was precluded by the rules of evidence from explaining why a police detective chose defendant's picture to include in a photo array, and the court compounded the error by instructing the jury to the same effect. Additionally, defendant's right to a fair trial was prejudiced when the detective volunteered on direct examination that he selected the photo from a computer database that he called a "Mug Master." 8-19-11

State v. Larry R. Henderson (A-8-08; 062218)

The current legal standard for assessing eyewitness identification evidence must be revised because it does not offer an adequate measure for reliability; does not sufficiently deter inappropriate police conduct; and overstates the jury’s ability to evaluate identification evidence. Two modifications to the standard are required. First, when defendants can show some evidence of suggestiveness, all relevant system and estimator variables should be explored at pretrial hearings. Second, the court system must develop enhanced jury charges on eyewitness identification for trial judges to use. Defendant is entitled to a new pretrial hearing consistent with this opinion to determine the admissibility of the eyewitness evidence introduced at his trial.

State v. Cecilia X. Chen (A-69-08; 063177)


Even without any police action, when a defendant presents evidence that an identification was made under highly suggestive circumstances that could lead to a mistaken identification, trial judges should conduct a preliminary hearing, upon request, to determine the admissibility of the identification evidence.