State v. Ivonne Saavedra (A-68-13; 073793)

State v. Ivonne Saavedra (A-68-13; 073793) 

The trial court properly denied defendant’s motion to dismiss her indictment. The State presented to the 

grand jury a prima facie showing with respect to the elements of each offense charged in the indictment and the State did not withhold from the grand jury exculpatory information or a charge regarding a defense that it was compelled by law to present. Defendant’s indictment does not violate due process standards or New Jersey public policy by conflicting with this Court’s decision in Quinlan, which does not govern the application of the criminal laws at issue in this appeal. 

Last minute evidence by State improper State v P.S.

Last minute evidence by State improper State v P.S.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. P.S.,

Defendant-Appellant.

______________________________________________________

March 26, 2015

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

Before Judges Fisher, Nugent and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-10-1757.

Bastarrika, Soto, Gonzalez & Somohano, attorneys for appellant (Jerard A. Gonzalez,of counsel; Jane M. Personette, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal of his conviction by a jury of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), of G.D. (hereafter Grace, a fictitious name) – which occurred in 2006 when Grace was approximately eleven years old – and one count of third-degree endangering, N.J.S.A. 2C:24-4(a), defendant argues, among other things, that the trial judge erred in admitting the State's photographs – taken the same day the defense rested – of the area in question. Because we agree the judge abused his discretion in permitting this rebuttal evidence – particularly when the rebuttal witness's testimony about the photographs acknowledged numerous changes to the area in the intervening years – we reverse.

The evidence adduced at a trial in 2009¹ revealed that in 1997 Grace's family, consisting of her parents and her twin sister, moved to Ridgewood. Defendant, his wife, and their two sons, resided in the house next door. Grace and one of defendant's sons were of the same approximate age and often played together in defendant's yard because it contained a basketball court, a rope swing, puppies and chickens. At one point, to give the children safer access to and from his yard, defendant cut a hole in his chain link fence that separated his property from Grace's family's yard, eliminating the need for the children to reach his yard by walking along a busy street.

The two families were friendly, and Grace's mother neither observed nor suspected any problem until May 2006, when Grace began suffering from headaches and fatigue.² According to her mother, Grace also exhibited physical symptoms that suggested she was having her first period, and she took Grace for a medical examination during which Grace revealed that defendant had touched her vagina through her clothing.³ Grace appeared uncomfortable discussing this with a male physician, so a female physician spoke with and examined her. Grace provided further detail to the female doctor, who, although finding no objective signs of injury and concluding Grace was probably experiencing her first period, suggested Grace and her mother speak to the police. The investigation that followed led to defendant's indictment.

At trial, although the State called five other witnesses, only Grace provided direct evidence of the alleged crimes.⁴The prosecutor conceded there was a "lack of physical and scientific evidence," and "although there were [others] present in and around the area" when the alleged abuse occurred, the jury would not hear "eyewitness testimony." In short, Grace was the source of the evidence provided by the other witnesses.

Grace testified that defendant first improperly touched her when she was in the third grade, estimating such incidents occurred approximately twenty times over a three-year period either inside defendant's home or in his backyard. Grace acknowledged no one else was present when defendant touched her. She provided specific incidents of abuse that occurred inside defendant's house and others that occurred outside, near a truck, a doghouse and a chicken coop in the yard. Through effective cross-examination, defense counsel revealed a number of inconsistencies in Grace's recollection of these events.

The jury also heard testimony from witnesses called by the defense. A.C., a neighbor, who tended to be home all day, had a kitchen window with a view of defendant's backyard. A.C. testified she had never observed Grace alone with defendant. A.C. also had tenants, one of whom testified she could see part of defendant's backyard from her window; she too testified she had never seen defendant alone in the yard with Grace. Defendant's wife provided similar testimony.

When the defense was about to rest near the end of this nine-day trial, the prosecutor advised the trial judge of his intention to "mount a very . . . narrow one witness rebuttal" to respond to the evidence offered by the defense regarding the configuration and appearance of defendant's backyard. Grace was permitted, over defendant's objection, to resume the witness stand, and she testified about a series of photographs taken that morning by a member of her family. 

Defendant was convicted and, on December 18, 2009, sentenced to an aggregate seven-year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appeals, arguing:

I. THE INTRODUCTION BY THE STATE, DURING THE REBUTTAL PHASE OF TRIAL, OF PHOTOGRAPHS TAKEN ON THE MORNING THE DEFENSE PLANNED TO REST, WERE PREJUDICIAL AND DEPRIVED DEFENDANT OF FAIR TRIAL, THUS WARRANTING THAT DEFENDANT'S CONVICTION BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

II. STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENT CONSTITUTED PROSECUTORIAL MISCONDUCT, PREJUDICED DEFENDANT AND WARRANT REVERSAL OF DEFENDANT'S CONVICTION (Not Raised Below).

We agree with the arguments posited in Point I and, therefore, reverse and remand for a new trial. And, although not necessary to our decision, we briefly comment on Point II.

I

Defendant argues the trial judge abused his discretion in allowing rebuttal in the form of photographs of defendant's backyard and the surrounding area that were admitted through and described by Grace's additional testimony.

In particular, the prosecutor sought to elicit this evidence to respond to testimony about a space in the fence used by Grace to enter defendant's yard:

MR. CALVIELLO: The . . . nine or ten photos of the fence line – the majority of which focus on the actual hole in the fence.

In addition, . . . to the limited testimony regarding the fence – and . . . in the eyes of the child victim who recalled the fence, who utilized that hole in the fence, and who can testify not only about . . . when she realized it was originally cut, then . . . the modest alteration they did to it later on . . . , and then later on when there was . . . the arrest.

And, in fact, [Grace] can give us the three stages and it's depicted in the photos . . . by virtue of the difference in the fence. . . .

But, Judge, there's additional relevance of usefulness of these photographs, which I think the jury will benefit from. For instance, they'll get to see the tree lines and they'll know in the spring and summer, when these trees are in bloom, the very limited view that there is from [Grace's] house of [defendant's] backyard. Again, another subject of very extensive debate, particularly, on the defense side.

In addition, Judge, the doghouse that was testified to. It's still in existence in the defendant's backyard – the size of it – which is fair for consideration – the placement of it now, which has since . . . been moved.

. . . .

[It] [i]s a fairly good photograph of the size of that doghouse and where it is today and where it was at the time of the incident in question.

Although he acknowledged the State's "right to bring in rebuttal evidence," defense counsel objected to this "eleventh hour" evidence, observing the need for any such evidence should have been sooner realized; indeed, as counsel repeatedly pointed out to the trial judge, the case had previously been tried but resulted in a mistrial when the jury could not reach a verdict. He argued that if photographs were truly needed to respond to the defense's theory that the area where some of the alleged incidents occurred was not secluded – and it was not therefore logical or believable that defendant would sexually abuse the child in a clear and open area – the State should have recognized that need long before the last day of testimony in the second trial on this indictment.

In addition, defense counsel argued that because the charged events had "happened three, four, five, maybe six years ago," the idea that the newly-minted photographs would present an accurate picture for the jury of the yard as it appeared many years earlier – particularly, in light of the intervening growth of trees and shrubbery in the area, and the changed location of the dog house and a truck – was preposterous and, therefore, the admission of the photographs would tend to confuse the jury.

Defense counsel urged the prejudicial impact of the prosecutor's last minute offer of this evidence:

MR. STRATIS: We have rules that this [c]ourt lives by. . . . The discovery process is one by which I'm entitled to photographs in advance.

I'd like to see on his exhibit list where he requested or suggested that he's going to bring in photographs. Perhaps, [if he had], I would have gotten a professional photographer to go out.

Maybe he would have sat in [A.C.'s] kitchen and taken photographs from every angle. Maybe I want a picture from [defendant's] backyard. Maybe I want pictures. . . .

I am entitled to these photographs as part of the exhibit list that should have been given to me before trial number one. At a minimum, it should have been given to me before trial number two. It hasn't been done.

[The prosecutor] knows my closing argument is about the lack of physical evidence and he wants to bring in [an] array of photographs to show the jury – or to suggest to them that, yes, I've got photographs.

Defense counsel also asserted the prejudicial nature of the late offer of evidence – "pictures mean a lot to a jury," they are "something they can hold on to . . . [and] see." And he argued prejudice in the timing of the offer because these photographs, which undercut the defense argument about the prosecution's lack of tangible evidence, would be the last thing the jury would see come into evidence.

These were all valid reasons for the exclusion or limitation of the rebuttal testimony, all of which were further amplified by the unusual circumstance – the surprising fact that the State did not sooner photograph the area in order to provide the jury with pictures to go with testimony it had already heard. The issue on appeal has been confounded by the confusing colloquy among the prosecutor, defense counsel and the judge regarding the State's offer and the defendant's concerns. And, despite a lengthy discussion,⁵ the record lacks a clear expression of the judge's reasoning for allowing the rebuttal evidence; indeed, we only know the judge granted the prosecutor's application because Grace was called to the stand and questioned about most of the photographs taken that morning. Our review of the issue, therefore, has been disserved or greatly clouded because the judge failed to explain why he permitted the admission of this evidence.  See Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).

To be sure, the admissibility of rebuttal evidence rests in the trial judge's sound discretion.  State v. Beard, 16 N.J. 50, 59 (1954); see also State v. Sturdivant, 31 N.J. 165, 178 (1959) (recognizing the trial judge is vested with "considerable discretion" in determining whether to permit rebuttal evidence), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed.2d 873 (1960); State v. Menke, 25 N.J. 66, 71 (1957) (observing "the exercise of that discretion will not be interfered with in the absence of mistaken use thereof"). In this case, a proper exercise of that discretion required an examination of three circumstances: the reason for the prosecution's failure to offer the evidence in the State's case-in-chief; the materiality of the evidence; and how defendant was prejudiced, which was described by the Menke Court as "the extent, if any, to which the defendant suffered greater damage than would have been imposed if the evidence had been offered at the proper time."  See Menke, supra, 25 N.J. at 71.⁶

Here, as we have observed, the case was tried on an earlier occasion. The jury could not then agree on a verdict. But, as a consequence, both sides gained a full understanding of the proofs that would be offered; accordingly, there were no surprises presented by defendant's evidence during the second trial. The State should have had a clear understanding of a need for the evidence that it did not offer until seeking the right to present rebuttal evidence. Although the record does not suggest the prosecution deliberately withheld an offer of photographs of the backyard so as to disadvantage defendant, the delay is so inexplicable that it can certainly be said that the prosecution's actions were reckless. The State must have understood that the defense theory included an assertion that whatever might occur in the yard would be visible to a number of potential witnesses in the neighborhood, thereby suggesting the child was not credible in asserting that the abuse occurred in the yard. Accordingly, we agree with defendant that the timing of the offer was highly suspicious.

The prejudice to defendant is also undeniable. Photographs, as the Supreme Court has recognized, possess a "persuasive representational nature."  See Brenman v. Demello, 191 N.J. 18, 30 (2007); see also State v. Moore, 122 N.J. 420, 466 (1991); State v. Smith, 27 N.J. 433, 449 (1958). Moreover, these photographs – presented in dramatic eleventh hour fashion – constituted the last tangible evidence presented to the jury.

And the prejudice was enhanced by the intervening years and the changes to the property's appearance from the time of the alleged events to the date the photographs were taken.⁷ This undisputed circumstance not only presented a potential for confusing the jury's understanding of the testimony about what may or may not have occurred in the yard years earlier, but also constituted a basis for excluding the photographs as improperly authenticated. In this latter regard, the Supreme Court has held that to authenticate a photograph, the proponent must demonstrate that

(1) the photograph is an accurate reproduction of what it purports to represent; and (2) the reproduction is of the scene at the time of the incident in question, or, in the alternative, the scene has not changed between the time of the incident in question and the time of the taking of the photograph.

[State v. Wilson, 135 N.J. 4, 15 (1994); see also State v. Joseph, 426 N.J. Super. 204, 220 (App. Div.), certif. denied, 212 N.J. 462 (2012).]

Although Grace testified the photographs accurately depicted the yard and other fixtures in the yard as they appeared on the date she testified, her direct testimony also demonstrated the many substantial changes to the area that we have already pointed out. The judge made no findings on these questions despite defense counsel's zealous assertions along these lines. Because there was no dispute about the substantial changes to the area between the time of the alleged offenses and the day the photographs were taken, the judge should have sustained defendant's objections.

The fact that the other evidence presented a close case for the jury to decide, the State's dramatic, last-minute and highly suspect presentation of these photographs was clearly capable of producing an unjust result.

II

Although not necessary to our decision in light of the above, in his second point defendant claims his right to a fair trial was prejudiced by the prosecutor's summation, in which he argued that some of defense counsel's arguments were "[b]y and large . . . downright repulsive."⁸ We agree this was an improper comment. As our Supreme Court has held, improper remarks in a summation will not always be deemed prejudicial because in many situations the "[f]ailure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made."  State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.2d 89 (2001).

The prosecutor's role in the criminal justice system is not to seek convictions but to ensure justice is done; the prosecutor must, therefore, refrain from employing improper methods calculated to produce wrongful convictions.  Id.at 587; State v. Rivera, 437 N.J. Super. 434, 443 (App. Div. 2014). One such improper method is disparagement because a prosecutor's expression about the bona fides of the accused's arguments may tend, "in the minds of jurors[,] [to] . . . add the weight of the prosecutor's official and personal influence and knowledge to the probative force of the evidence adduced."  State v. Thornton, 38 N.J. 380, 398 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed.2d 1039 (1963). Although prosecutors possess considerable leeway to make vigorous and forceful contentions, they may not "cast[] unjustified aspersions on the defense or defense counsel."  State v. Nelson, 173 N.J. 417, 461 (2002); see alsoState v. Smith, 167 N.J. 158, 177 (2001). The prosecutor exceeded the bounds of proper advocacy when he stated to the jury that defendant's arguments were largely "downright repulsive."

Defense counsel did not object, giving rise to application of the plain-error standard of review. Because we reverse on other grounds, however, we need not decide whether the prosecutor's improper comment was capable of producing an unjust result.

Reversed and remanded for a new trial. We do not retain jurisdiction.

1 It is not clear why the appeal was not commenced until 2012, when defendant was required to seek and obtain leave to file a notice of appeal out of time. It further appears defendant has already served his prison sentence, but because he is not a citizen he remains incarcerated on an immigration detainer.

2 Grace's mother testified that defendant "treated [Grace] like he would treat any other child[,] [and she] didn't see anything wrong with the way they were interacting with each other." She acknowledged that it was "fair to say that [she] did not see any of the events" alleged.

3 Grace testified in general that there were approximately twenty instances – only eight of which were specifically described – in which defendant improperly touched her. She acknowledged defendant never made direct contact with her vagina, he only touched or pinched her there through her clothing.

4 The other witnesses were Grace's mother, a police detective who interviewed Grace, an expert who testified about child abuse sexual accommodation syndrome, and the male and female physicians who met with and examined Grace before the investigation leading to defendant's indictment. These other witnesses provided no independent evidence of the alleged crimes. For example, the prosecutor acknowledged in his opening statement that the physicians would not provide "evidence of any physical injury as a result of the abuse" and Grace's physical complaints were "very likely [] the onset of her menstrual cycle."

5 The argument consists of approximately 100 single-spaced transcript pages. The transcript is not always illuminating; most of the argument consists of the two attorneys interrupting each other as they pressed their positions.

6 In other words, the prejudice factor does not relate to whether "the additional evidence is harmful" to the defendant but whether the defendant has taken action since the prosecution rested that placed the defendant in a disadvantageous position in attempting to respond to the evidence offered in rebuttal, for example, whether "the defendant had excused his witnesses who would have been used to rebut the new evidence offered."  Menke, supra, 25 N.J. at 71.

7 For example, Grace pointed out numerous differences between what the photographs depicted and the appearance of the same area when the alleged events occurred. Those differences included: a new wooden fence; vines that were "usually cut" on earlier occasions had been permitted to grow along the fence; the doghouse, in which one of the alleged events occurred, had changed locations; a truck that factored into another alleged event was not in the same location; a bush along the property line had grown larger; and a swing set on the property of Grace's family was not in the same location.

8 Defendant also complains of the less severe assertion in the summation that the law allows a child victim to take the stand and "to be subjected to a[n] aggressive, at times, and antagonistic cross examination[.]"

State v Borges

No drug court to avoid jail for 2c:40-26 State v Borges

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. TANIA M. BORGES,

Defendant-Appellant.

___________________________

April 1, 2015

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6102-12T2 unpublished

Before Judges Reisner and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-01-00141.

Nancy C. Ferro, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Anthony C. Talarico, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Tanya Borges appeals from her conviction for fourth-degree driving during a period of license suspension imposed for a second or subsequent violation of N.J.S.A. 39:4-50 (driving while intoxicated).  N.J.S.A. 2C:40-26(b). Her appeal focuses on her exclusion from the Drug Court program, which was based on a determination that defendant was subject to a mandatory minimum period of incarceration under N.J.S.A. 2C:40-26(b). See N.J.S.A. 2C:35-14(b)(3) (exclusion from Drug Court probation for persons subject to a mandatory minimum period of incarceration). 

Defendant appealed from the Drug Court rejection, and on July 23, 2013, the trial judge granted her application, conditioned on her first serving 180 days in the county jail without parole, the term of imprisonment required by N.J.S.A. 2C:40-26(c). Defendant declined the conditional entry into the Drug Court program, and filed an appeal to this court from the July 23, 2013 order. Defendant then pled guilty to violating N.J.S.A. 2C:40-26(b), conditioned on her right to pursue her appeal of the July 23 order. On November 6, 2013, the trial court sentenced her to serve 180 days in the county jail without parole, but stayed the sentence pending the outcome of her appeal.¹

On this appeal, defendant presents the following argument:

THE COURT BELOW ERRED BY REFUSING TO ALLOW DEFENDANT TO ENTER THE DRUG COURT SPECIAL PROBATION PROGRAM IN LIEU OF INCARCERATION AND REQUIRING HER, INSTEAD, TO FIRST SERVE A 180 DAY JAIL SENTENCE WITH NO PAROLE ELIGIBILITY AND THEN ALLOWING HER TO ENTER THE DRUG COURT PROGRAM.

Defendant's arguments in support of this point require little discussion.  R. 2:11-3(e)(2). The short answer is that this case is governed by our recent opinion in State v. French, 437 N.J. Super. 333 (App. Div. 2014), certif. denied, ___ N.J. ___ (2015). In French, we held that that a defendant convicted of violating N.J.S.A. 2C:40-26(b) must be sentenced to a term of 180 days in jail without parole and cannot be sentenced to "a non-jail rehabilitation program" in lieu of serving any portion of that jail term.  Id. at 338. We reaffirmed that holding in State v. Harris, 439 N.J. Super. 150 (App. Div. 2015). 

The Legislature's purpose in requiring a mandatory period of "imprisonment" for this offense, with no possibility of parole, is also clear. Alternatives to jail, like the inpatient drug rehabilitation program involved in French, or the home detention and community service programs at issue here, do not protect the public in the same way as incarceration. This public safety consideration is especially relevant in the case of a defendant who loses his or her driving privileges for DWI, but then continues to drive despite the license suspension.

Because N.J.S.A. 2C:40-26(c) requires a "fixed minimum sentence of not less than 180 days" without parole eligibility for violations of N.J.S.A. 2C:40-26(b), a sentence to a non-custodial "alternative program," instead of jail, is plainly illegal.

[Id. at 160.]

Defendant's reliance on State v. Meyer, 192 N.J. 421 (2007), is misplaced, because the defendant in that case was otherwise eligible for a probationary term. In this case, defendant is not eligible for a probationary term because N.J.S.A. 2C:40-26(c) unambiguously requires that she be sentenced to a jail term of 180 days without parole. Accordingly, we affirm the order on appeal. 

This case is remanded to the trial court for the limited purpose of entering an order, within thirty days of the date of this opinion, vacating the stay of defendant's sentence.

Affirmed in part, remanded in part. 

1  Entry of the judgment of conviction, which was a final order, rendered the earlier order ripe for appeal as of right. 

STATE OF NEW JERSEY VS. TALADEEN ROSS, ET AL. A-3026-13T4/A-5460-13T4 (CONSOLIDATED)

STATE OF NEW JERSEY VS. TALADEEN ROSS, ET AL. 

A-3026-13T4/A-5460-13T4 (CONSOLIDATED) 

During the pretrial stage of this criminal prosecution, the trial judge entered orders pursuant to a motion filed by the Public Defender's Office directing a non-party – the County of Middlesex – to provide the means by which defendants incarcerated in the county jail could accept, access and examine electronic discovery. Although the court agreed with the County that these criminal proceedings did not present an adequate framework for granting relief against a non-party and although the court also determined that the judge should not have further entertained these matters once the County filed an appeal, the court concluded that the appeal had been rendered moot because the County complied with the orders in question and any ruling the court may make in reviewing the orders would have no practical bearing on the parties at this time. 

STATE OF NEW JERSEY VS. ANTHONY F. STALTER A-5674-12T4

STATE OF NEW JERSEY VS. ANTHONY F. STALTER 

A-5674-12T4 

The Law Division denied defendant's request for jail credits based on his time at a residential treatment program, which was a condition of his sentence of probation as a Track 2 participant in Drug Court. We affirmed, determining that only a Track 1 participant is eligible for jail credit under those circumstances. N.J.S.A. 2C:35-14(f)(4) provides that Drug Court defendants subject to a presumption of incarceration, who are assigned to Track 1 and must be sentenced to "special probation," are entitled to receive jail credit for such participation. However, they are also subject to prosecution for escape if they leave the program without permission. N.J.S.A. 2C:35-14(d). Track 2 defendants are sentenced to general probation, N.J.S.A. 2C:45-2, and are not subject to prosecution for escape if they leave a residential program without permission. N.J.S.A. 2C:35-14 does not apply to them and Rule 3:21-8 does not provide for jail credits under those 

conditions, absent unusual circumstances not present in this case. State v. Reyes, 207 N.J. Super. 126, 141-43 (App. Div.), certif. denied, 103 N.J. 499 (1986). 

05

STATE OF NEW JERSEY VS. DION E. ROBINSON A-5600-12T3

STATE OF NEW JERSEY VS. DION E. ROBINSON 

A-5600-12T3 

The court reverses an order denying defendant's motion to suppress the handgun seized in a "protective sweep" of his car. 

Following a routine late-night traffic stop on the Garden State Parkway, police dispatch advised the patrol officer that defendant driver and one of his three passengers had open warrants and were known to carry weapons. Deciding to proceed "tactically," five officers approached with guns drawn and ordered all occupants out of the car. The two men with warrants were arrested and placed in patrol cars. Neither of the two remaining passengers possessed a driver's license. Because there are no facts in the record to support a reasonable suspicion on the part of the officer that the unlicensed drivers were dangerous and could return to the car to obtain immediate access to a weapon, the court deems the search unreasonable. 

Judge Nugent dissents, concluding the totality of circumstances justified both the officer's belief that a gun was in the car and his protective sweep for the safety of the officers on the scene as well as the public under the community caretaking doctrine. 

ESTATE OF PATRICIA GRIECO, BY ITS ADMINISTRATOR VINCENT GRIECO AND VINCENT GRIECO, INDIVIDUALLY, VS. HANS J. SCHMIDT, M.D. AND ADVANCED LAPAROSCOPIC ASSOCIATES A-2392-13T4

ESTATE OF PATRICIA GRIECO, BY ITS ADMINISTRATOR VINCENT GRIECO AND VINCENT GRIECO, INDIVIDUALLY, VS. 

HANS J. SCHMIDT, M.D. AND ADVANCED LAPAROSCOPIC ASSOCIATES 

A-2392-13T4 In this medical malpractice action, plaintiffs – the estate and husband of the late Patricia Grieco – obtained leave to appeal an interlocutory order that barred witnesses from recounting what Patricia said her doctor's staff told her in response to her complaints of chest pains following surgery. The court reversed because the trial judge could not properly determine the trustworthiness of the statements, as required by N.J.R.E. 804(b)(6), without having listened to the witnesses testify at a N.J.R.E. 104 hearing. In addition, the court found the trial judge's concerns about the "hearsay within hearsay" problem were mistaken since the inner hearsay – what defendant's staff allegedly told Patricia – was admissible, N.J.R.E. 803(b)(4). 

FELICIA PUGLIESE VS. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK/ EDGARD CHAVEZ VS. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK A-0857-13T2/A-1012-13T2

FELICIA PUGLIESE VS. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK/ EDGARD CHAVEZ VS. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK 

A-0857-13T2/A-1012-13T2 

In these appeals from termination, two tenured teachers assert that their legal defenses were not considered by the Commissioner of Education, the arbitrator hearing the case, or the trial court. The arbitration hearings were conducted pursuant to the then-recently enacted Teacher Effectiveness and Accountability for the Children of New Jersey Act (TEACHNJ), which replaced Administrative Law Judges with arbitrators and immediate appellate review with trial court review. The evaluations upon which the tenure charges were based took place prior to TEACHNJ. 

The matters are remanded for the Commissioner to explicitly decide those legal defenses that the Commissioner does not expressly delegate to the statutorily-mandated arbitrators to decide. The Commissioner must also inform the arbitrators what legal standards to apply to teachers who have received tenure charges after the effective date of TEACHNJ alleging inefficiency occurring prior to the effective date of the statute. 

STATE OF NEW JERSEY VS. A.L. A-4429-13T2

STATE OF NEW JERSEY VS. A.L. 

A-4429-13T2 

In this case of first impression, we determine the procedures that should be used to review the indigency status of a defendant who has been convicted of a crime and who requests the services of the Office of the Public Defender (OPD) to file an appeal on her behalf. During the pendency of defendant's appeal from her conviction, the State filed a motion with the trial court, rather than this court, seeking to prohibit the OPD from continuing to represent defendant in the appeal based upon its assertion that defendant was not indigent. We conclude that, pursuant to the clear language of Rule 2:9-1(a), this motion should have been filed with the Appellate Division in the first instance. 

STATE OF NEW JERSEY VS. JAMES L. LEGETTE A-1207-13T3

STATE OF NEW JERSEY VS. JAMES L. LEGETTE 

A-1207-13T3 

Washington v. Chrisman, 455 U.S. 1, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982), and State v. Bruzzese, 94 N.J. 210, 234 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), allow the police to accompany arrestees who want to go into their residence to retrieve identification or personal items. We hold the same is true in a valid investigatory stop based on reasonable suspicion, at least if the officer has a reasonable belief that the detainee is armed and dangerous. In that situation, accompaniment by the officer is reasonable to avoid the possible danger to the officer and risk of escape if the detainee is allowed to go into the residence unaccompanied. If the detainee decides not to enter the residence once he learns he will be accompanied, the officer may not enter without satisfying the warrant requirement or an exception. 

If the detainee seeks to conceal evidence while in the residence, the officer may prevent the concealment, and secure the evidence. 

STATE OF NEW JERSEY VS. GREGORY A. MARTINEZ A-5019-12T4

STATE OF NEW JERSEY VS. GREGORY A. MARTINEZ 

A-5019-12T4 

We again examine the tension between a trial court's discretionary "authority to control its own calendar" by denying an adjournment request and the need to safeguard "a defendant's Sixth Amendment right to a fair opportunity to secure counsel of his own choice" in light of State v. Miller, 216 N.J. 40, 62, 65 (2013) (citation and internal quotation marks omitted), cert. denied, __ U.S. __, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). Guided by the framework for review set forth in State v. Hayes, 205 N.J. 522 (2011), we conclude the denial of defendant's request to adjourn trial, without weighing the facts presented supporting the requested adjournment, reflects an arbitrary exaltation of expedience in case processing at the expense of defendant's right to counsel. Accordingly, we vacate the judgment of conviction and remand the matter for a new trial. 

STATE OF NEW JERSEY VS. MICHELLE TOUSSAINT A-3654-13T1

STATE OF NEW JERSEY VS. MICHELLE TOUSSAINT 

A-3654-13T1 

When a defendant is convicted under N.J.S.A. 39:3-40(e) (being involved in an accident that causes injury to another, while driving with a suspended license), or N.J.S.A. 39:6B-2 (driving without insurance), the court has discretion to permit the defendant to serve the sentence in an electronic monitoring program instead of in the county jail. In construing those provisions, we distinguished State v. French, 437 N.J. Super. 333, 335 (App. Div. 2014), certif. denied, 200 N.J. 575 (2015), which held that N.J.S.A. 2C:40-26(c) did not permit sentencing alternatives for driving during a second or subsequent license suspension imposed for DWI. 

STATE OF NEW JERSEY VS. DQWAN A. TAYLOR A-1883-13T4

STATE OF NEW JERSEY VS. DQWAN A. TAYLOR 

A-1883-13T4 

The court considered whether the defendant, a passenger in a motor vehicle determined to be stolen, had a reasonable expectation of privacy in the vehicle's contents. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. The court declined the State's invitation to formulate a bright-line rule as a matter of law, that an individual operating or occupying a stolen motor vehicle, regardless of their knowledge of its status, does not have a reasonable expectation of privacy. The question whether defendant had a reasonable expectation of privacy required a fact sensitive inquiry. 

State v. William Roseman and Lori Lewin (A-105/106-13; 073674)

State v. William Roseman and Lori Lewin (A-105/106-13; 073674) 

Defendants have demonstrated extraordinary circumstances to overcome the presumption against Pretrial Intervention (PTI) for second-degree offenses and there is no factual justification for the application of the factors set forth by the prosecutor under N.J.S.A. 2C:43-12(e). Denial of defendants’ applications to Pretrial Intervention (PTI) by the prosecutor was plainly a patent and gross abuse of discretion. 

State v. Aakash A. Dalal (A-50-14; 075325)

State v. Aakash A. Dalal (A-50-14; 075325) 

Not all threats or efforts to intimidate a judge will require recusal. However, given the serious nature of the threat, the absence of any proof of manipulation, the potential introduction of the evidence in one of the trials, and the relationships among judges within the Bergen Vicinage, a reasonable, fully informed observer could have doubts about a Bergen County judge’s impartiality. In light of recent developments, the matter is remanded to the Bergen County assignment judge for further proceedings consistent with this opinion.

State v. Edwin Urbina (A-49-13; 073209)

State v. Edwin Urbina (A-49-13; 073209) 

The trial court’s failure to make further inquiry into defendant’s apparent assertion of self-defense, including ensuring that defendant truly understood the law of self-defense and that the State bears the burden of disproving self-defense once asserted, renders it unclear whether defendant’s plea was truly knowing, intelligent, and voluntary and requires vacation of his plea of guilty to aggravated manslaughter. 

State v. Ricky Wright (A-64-13; 073137)

State v. Ricky Wright (A-64-13; 073137) 

The third-party intervention or private search doctrine does not exempt law enforcement’s initial search of defendant’s home from the warrant requirement. Absent exigency or some other exception to the warrant requirement, the police must get a warrant to enter a private home and conduct a search, even if a private actor has already searched the area and notified law enforcement. 

STATE v. AKILAH N. MURPHY

No search of home without a warrant State v.

AKILAH N. MURPHY,

Defendant-Appellant.

__________________________________

June 3, 2015

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A Union County grand jury returned an indictment against defendant Akilah N. Murphy charging her with fourth degree possession of marijuana, N.J.S.A. 2C:35-10a(3), third degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11), third degree possession of marijuana with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7, third degree possession of heroin, N.J.S.A. 2C:35-10a(1), second degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2), and third degree possession of heroin with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7.

Defendant moved to suppress the evidence seized by officers of the Plainfield Police Department from her apartment. At the motion hearing, defendant argued the information provided to the court to support the issuance of the search warrant was obtained by the police through an unconstitutional warrantless entry of her residence and thus irreparably tainted the fruits of this illegal search. Alternatively, defendant requested that the trial court conduct an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed.2d 667 (1978), to enable her to impeach the testimony of the police officer who provided the information relied on by the court to find probable cause for the issuance of the search warrant.

The trial court denied defendant's motion to suppress without conducting an evidentiary hearing. After reviewing the report of the incident, the motion judge determined exigent circumstances existed to justify the police officer's warrantless entry into defendant's apartment. Because he found the initial entry was lawful, the judge concluded "the subsequent, full search of that apartment was conducted pursuant to a valid search warrant, founded on probable cause."

Defendant thereafter negotiated a plea agreement with the State through which she pled guilty to second degree possession of heroin with intent to distribute and third degree possession of heroin with intent to distribute within 1000 feet of a school zone. The State agreed to recommend the court sentence defendant within the third degree range on both offenses. Pursuant to the plea agreement, the court sentenced defendant to an aggregate term of four years with an eighteen-month period of parole ineligibility.

On appeal, defendant argues the motion judge erred in finding there were exigent circumstances justifying the police officer's warrantless entry into her home. We agree. Based on the facts reflected in the police report authored by the officer who was at the scene, there were no constitutionally justifiable reasons for the officer to have entered defendant's home without a warrant. The search warrant that led to the discovery and seizure of the evidence against defendant was expressly and exclusively predicated on this unconstitutional warrantless entry of defendant's residence. Such a direct causal link also requires the suppression of the evidence gathered by the police pursuant to the search warrant.

I

We derive the following facts from the police report authored by Plainfield Police Officer B. Baber.¹ At approximately 10:45 a.m. on Wednesday, August 17, 2011, the Plainfield Police Department received a call reporting "a suspicious person who has been lingering in the area [of the 500 block of West 8th Street] for the last 5 days." Officer Baber indicated "the complainant did not believe he lived in the area." According to Baber, the caller described this person "as a black male with long dread-lock hair wearing a white t-shirt and blue pants with white stripes down the sides."

Baber drove to the area indicated by the caller in a marked patrol car "to check for the suspect." As he passed by a residence located in the 500 block of West 8th Street,² Baber saw three individuals in the driveway of this residence. A person sitting next to "a younger male" fit the caller's description. Baber continued to drive past the house, made a U-turn, and entered the residence's driveway. As he approached "the group" in his patrol car, the man who fit the caller's description, who was then standing, "ran into the residence." According to Baber, when he stepped out of the patrol car and approached the two remaining individuals, he "could detect a strong odor of burnt marijuana in the air."

Baber asked the two persons in the driveway if they knew the man "that just ran into the residence." Both of them answered "no." Baber noted in his report that at this specific point in time he "was unware if the group was currently involved in some illegal activity, and if other individuals [were] also in the apartment."³ Baber noted a "younger male"⁴ who was sitting on the stairs. Next to him "was a small bag of what appeared to be marijuana, two cell phones, and some cash." The second person was an adult. He told Baber he was a private physical instructor who was there waiting for a client.

Although Baber noted that "neither individual provided any information to me," he nevertheless believed that the individual who ran inside the building "may have entered the residence illegally." He thus requested "additional Officers to respond so I can conduct a search for this individual." We note that Baber did not provide any explanation for believing the individual who ran inside the building was illegally inside any particular residence.

The record does not disclose the precise number of officers the Plainfield Police Department dispatched in response to Baber's request; the record also does not indicate the time it took for these additional officers to arrive at Baber's location. Baber only mentioned in his report that a sergeant "secured the items that were found on the stairs" and later turned these items over to him.

We describe what transpired next by quoting verbatim from Baber's report.

Upon entering the residence I found that there was a second door that led into a common hallway that went to 9 other apartments and a basement. While other officers checked the common areas and the basement, myself and Lt. J.T. Plum continued to search the apartment. While entering the hallway that leads from the kitchen to the living room I found a burnt still smoldering cigar, commonly known as a "blunt." You could smell the odor of burnt marijuana coming from this cigar. While in the living room searching for this individual I could detect a strong odor of raw marijuana. Lt. Plum was checking a wall closet located in the living room and observed cash and what appeared to be narcotics. (See Lt. Plum's supplement for further [information].)

The rest of the apartment was searched for the individual with negative results. 

[(Emphasis added).]

Defendant arrived sometime after the Plainfield Police Department had entered and searched her home without a warrant. According to Baber, "[s]he appeared visibly shaken." She informed the officers that the only persons who resided in the apartment were herself and her child. Baber does not mention in his report whether defendant was asked if she knew anyone matching the description of the "suspicious man." 

At 2:30 p.m. that same day, a Union County Assistant Prosecutor presented the sworn testimony of Plainfield Police Detective Adam Green to a Union County Superior Court Judge in support of the State's application for a search warrant to complete the search of defendant's home. It is undisputed that Detective Green was not one of the officers who responded to Baber's request for backup. In fact, Green's testimony was based entirely on hearsay information he received from the officers at the scene. It is equally clear that Green's testimony was elicited by the Assistant Prosecutor through a series a leading questions that for the most part required Green to give the equivalent of a "yes" or "no" response.

Green's testimony deviated from Baber's account of events on several material details. For example, Baber indicated that the individual matching the description of the "suspicious person" was standing after Baber made the U-turn to approach the area where the three individuals were previously sitting; as Baber approached the group, the man "ran into the residence where he once was sitting in front of." By contrast, Green provided the following information in response to the prosecutor's question: "And upon [Baber] arriving to the area did the individual who matched that description immediately take off running into an apartment?" Green responded: "Yes he did." 

Baber indicated he "believed the individual that ran may have entered the residence illegally." However, Baber did not provide a rationale for his "belief" or explain how he was able to see the individual enter any particular apartment when he was standing outside the building at the time. Detective Green's testimony describing this event was materially different:

PROSECUTOR: And at that time, was the officer concerned that the individual [who] ran into the apartment may have not had a right to run into the apartment, correct?

GREEN: That is correct.

PROSECUTOR: And that is based upon the numerous home burglaries that have [taken] place within that area of Plainfield recently?

GREEN: That is correct.

PROSECUTOR: Did the patrol officer then proceed towards that apartment?

GREEN: Yes sir.

PROSECUTOR: And in fact he entered through a front doorway that led to a foyer, correct?

GREEN: That is correct. It's on the east side with a front foyer that leads directly into that apartment.

PROSECUTOR: And in that foyer, on the other side of that foyer, there is one door for the apartment, correct?

GREEN: Yes sir.

PROSECUTOR: So that individual could have only run into one apartment after he ran through that foyer, correct?

GREEN: Yes sir.

PROSECUTOR: And upon reaching the threshold of the apartment, did an officer also smell a strong odor of marijuana?

GREEN: Yes that is correct.

As the following question illustrates, through this series of leading questions the prosecutor also misrepresented the sequence of events that led Baber to request the assistance of additional officers:

PROSECUTOR: And so at that point, based upon the odor of raw marijuana, the fact that the individual ran into the apartment of which he may not have had a right to be in, did an officer then radio for back up and then enter that apartment with back up units?

GREEN: Yes he did. (Emphasis added).

This is not consistent with Baber's account of events. According to Baber, he requested additional officers "so I can conduct a search for this individual." His request for additional officers was not predicated on the odor of raw marijuana emanating from defendant's apartment. Based on Baber's report, all of the contraband the police officers discovered in defendant's apartment came from visual inspections and olfactory sensations the officers experienced after they had entered defendant's residence without a warrant.

Finally, Green testified that while searching the living room closet, Lieutenant Plum

immediately observed a large quantity of United States currency as well as a McDonald's bag which contained, inside of it, a freezer bag, a freezer dry bag that contained a significant amount of suspected marijuana.

PROSECUTOR: And that bag was actually opened, the officer didn't have to actually open the bag, that the bag was opened, he was able to observe those contraband items in that bag, correct?

GREEN: That is correct.

PROSECUTOR: And the illegality was immediately apparent to the officer, correct?

GREEN: Absolutely.

PROSECUTOR: And.

GREEN: Additionally he observed on the floor next to the United States currency a brown cardboard box which from my training, education and experience is found to be part of paraphernalia used to distribute CDS. Likewise underneath the brown box, in view, was a glassine, a new unused glassine wax paper fold.

PROSECUTOR: And the individual you described here under oath that ran into that apartment, was not found in that apartment, correct?

GREEN: No he was not.

Based on Green's testimony, the judge found probable cause to search defendant's apartment and issued the warrant. A search of defendant's apartment conducted that same day yielded a large quantity of illicit drugs.

II.

Against this record, defendant appeals raising the following arguments:

POINT I

THE JUDGE ERRED IN FAILING TO CONDUCT A HEARING ON WHETHER DETECTIVE GREEN KNOWINGLY OR RECKLESSLY PROVIDED FALSE STATEMENTS IN HIS SEARCH-WARRANT APPLICATION. IN ANY EVENT, THE APPLICATION FAILED TO PROVIDE PROBABLE CAUSE TO ENTER AND SEARCH MS. MURPHY'S APARTMENT.

POINT II

THE FOUR-YEAR PRISON SENTENCE, WITH AN 18-MONTH PERIOD OF PAROLE INELIGIBILITY, WAS MANIFESTLY EXCESSIVE, BECAUSE MS. MURPHY HAD NO PRIOR CONVICTIONS, HAD STABLE EMPLOYMENT, AND HAS TWO CHILDREN IN HER CARE.

The right to be protected against unlawful or unwarranted entries by the police into one's home is one of the most precious and fundamental liberties guaranteed by both the national and the State's Constitutions. The first clauses of both the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution, provide that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."  U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7.

Writing for a unanimous Court, Chief Justice Rabner has recently reaffirmed and explained in detail the principles that must guide judicial review of a warrantless entry by the police of a person's home.

[T]the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.

The unique status of the home has been recognized for centuries. And throughout our nation's history, one of our most protected rights . . . has been the sanctity and privacy of a person's home. Those interests are entitled to the highest degree of respect and protection in the framework of our constitutional system.

The United States Supreme Court recently reaffirmed the heightened status of the home under the Constitution. The Court observed that when it comes to the Fourth Amendment, the home is first among equals and stands at the Amendment's very core.

This Court also recently emphasized the preeminent position of a private residence when it held that the community-caretaking doctrine, standing alone, could not justify a warrantless search of a home.

The law, thus, expresses a clear preference for police officers to secure a warrant before entering and searching a home. A warrantless search of a private dwelling is presumptively invalid, and calls for particularly careful scrutiny. To overcome that presumption, the State must show that a warrantless search falls within a recognized exception to the warrant requirement.

[State v. Wright, ___ N.J. ____, ____ (2015) (slip op. at 21-22). (Internal citations omitted).]

Because both our federal and constitutional jurisprudence has expressed an explicit preference for the police to secure a warrant before searching a person's home, a warrantless entry of a home is presumed invalid absent the State proving by a preponderance of the evidence that the search falls within one of the recognized exceptions to the warrant requirement.  State v. Lamb, 218 N.J. 300, 315 (2014). See also Riley v. California, ____ U.S. _____,_____, 134 S. Ct. 2473, 2482, 189 L. Ed.2d 430, 439 (2014). 

In State v. Bolte, 115 N.J. 579, 585-86 (1989), our Supreme Court noted that "exigent circumstances in conjunction with probable cause may excuse police from compliance with the warrant requirement." However, the nature of the underlying offense determines the applicability of the "exigent circumstances" exception to the warrant requirement, especially when the matter concerns the warrantless entry of a home. The exigency must be rationally connected to a police investigation of a serious or potentially dangerous criminal activity, and the circumstances must lead a reasonable police officer to conclude that delaying in order to obtain a warrant would carry an unreasonable risk that the evidence would be destroyed. The key to this analysis is finding evidence that indicates a police officer had an "objectively reasonable basis to believe that prompt action is needed to meet an imminent danger[.]"  State v. Edmonds, 211 N.J. 117, 133 (2012) (citation omitted).

A warrantless entry into a home may be constitutionally permissible in a case in which the police officer is in hot pursuit of a suspect who the officer reasonably believes poses an immediate threat to himself or members of the public.  Bolte, supra, 115 N.J. at 584. However, the "hot pursuit" must be supported by probable cause to believe the person being pursued has committed a serious offense. Stated differently, "the exigencies of the situation must [make that course] imperative." Ibid. Thus, our Supreme Court has upheld the warrantless entry of a home by police officers who were in hot pursuit of an armed suspect who entered the residence to evade capture.  State v. Walker, 213 N.J. 281, 292 (2013), (citing State v. Hutchins, 116 N.J. 457, 464 (1989)).

Conversely, our Supreme Court made clear in Bolte that the police cannot rely on the exigent circumstances or hot pursuit exceptions to the warrant requirement to justify a warrantless entry of a home to investigate minor offenses or apprehend a suspect who may have committed a minor offense. Justice Stein explained this principle in Bolte by adopting the admonitions of the United State Supreme Court in Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S. Ct. 2091, 2099, 80 L. Ed.2d 732, 745 (1984): "[I]t is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor."  Bolte, supra, 115 N.J. at 592.

Here, the State argued Baber and the other Plainfield Police Officers' warrantless entry into defendant's home was "objectively reasonable" because their actions were "in response to exigent circumstances, i.e., to prevent the fleeing man from eluding arrest, and to prevent the destruction of evidence." The motion judge accepted the State's argument.

[T]he court finds that exigent circumstances did exist, and justified the officers' initial entry of the apartment. Most significantly, Detective Green's testimony established that the officers were in hot pursuit of an individual who had just immediately fled into the premises of [describes the address]. Here, during a response to a community call regarding a suspicious individual, officers observed an individual matching the description provided by the caller. That individual fled into [describes the address] upon seeing a marked police vehicle's stop near his location. Secondly, Detective Green testified that the officers were concerned about whether the individual had permission to enter the residence. He furthermore testified about a recent incidence of home burglaries in the immediate area. As such, the immediacy of the action would indicate a high degree of urgency with regards to any police action in pursuit of the individual.

The motion judge also found "the police⁵ had probable cause to believe an individual who had just committed a narcotics offense had fled into the apartment." 

These findings are not supported by the record as described by Baber in his report. Baber did not see the man who matched the caller's description and ran inside the apartment building to commit a serious narcotics offense. Viewing the facts in the light most favorable to the State, Baber may have had probable cause to believe the individual who ran inside the building was in constructive possession of "a small amount of marijuana." This would constitute a disorderly persons offense under N.J.S.A. 2C:35-10(a)(4). Such a minor offense does not constitute grounds to justify the warrantless entry of defendant's home.  Walker, supra, 213 N.J. at 292. 

The record also shows Baber was not in a position to observe where the suspicious man ran once he entered the building. His focus on defendant's apartment as the place where the man allegedly entered is therefore unsupported by evidence. Green's testimony expounding on Baber's account on this point is not supported by competent evidence because Green did not disclose the basis for this material deviation from the description provided by the officer at the scene.

Under the totality of the circumstances we have described, the action taken by the Plainfield Police Department seems unwarranted and overzealous from its inception. A police officer was dispatched to the area where defendant resided based only on an anonymous call reporting a "suspicious person who has been lingering in the area for the last 5 days and the [caller] did not believe he lived in the area." Green described the area where defendant's apartment is located as a "quiet residential block," where you would not see people "milling about." When Baber arrived, he immediately focused his attention on the man who matched the caller's physical description.

However, nothing about the information provided by the caller was objectively suspicious. We do not know why the caller believed the man did not live in the area. We do not know what the caller meant by "lingering in the area." The only specific information the caller provided to the police was the man's race, hairstyle, and clothing. Without more, a citizen should not be labelled "suspicious," subject to law enforcement investigation. By Baber's own description, he only saw a man run into an apartment building at the sight of a marked police vehicle.⁶ Yet despite the absence of any reasonably objective basis to believe a serious crime may have been committed, Baber proceeded in a manner that ultimately led him to enter defendant's residence without a warrant. 

Accepting as truthful Baber's account of what transpired up to this point, none of this is objectively "suspicious." Under these circumstances, Baber did not have any objectively reasonable grounds to believe any illegal activity had occurred. Two men and a young boy sitting on the steps of a multi-family building is not inherently suspicious; "milling about" in the middle of a summer day should not be viewed by any reasonable police officer as indicative of criminality or untoward conduct. However, before he allegedly detected the odor of burnt marijuana in the air, Baber believed these facts were sufficient to constitute suspicious behavior.

We hold that the Plainfield Police Officers who entered defendant's apartment on August 17, 2011, without a search warrant violated defendant's rights against unreasonable searches and seizures under both the Fourth Amendment of the Constitution of the United States and Article I, Paragraph 7 of the New Jersey Constitution. The facts known to these officers at the time they entered defendant's home without a warrant were insufficient, as a matter of law, to constitute exigent circumstances and did not establish probable cause that the man who allegedly entered defendant's residence had committed a serious offense and was attempting to elude capture. Any and all evidence seized by the State from this unlawful entry into defendant's residence is suppressed and cannot be used by the State to prosecute defendant on the charges contained in this indictment.

We further hold that the search warrant issued by the trial court on August 7, 2011 was based on facts directly gathered by the Plainfield Police Department from the unconstitutional warrantless entry of defendant's residence and search conducted thereafter. As such, any and all evidence seized by the State from the execution of this search warrant is suppressed and cannot be used by the State to prosecute defendant on the charges contained in this indictment.

Reversed and remanded. We do not retain jurisdiction.

1  Officer Baber's first name is not disclosed in the record.

2  The record includes the precise address of the residence. We have opted not to include the address in this opinion to protect the privacy of the residence.

3  This reference to other individuals potentially inside "the apartment" does not logically flow from Baber's description of events up that point. Baber did not indicate in his report seeing the "suspicious man" go into any particular apartment when he ran inside the residence. In fact, Baber specifically states he was outside in the driveway area where the group was sitting on the steps of the residence when he saw the man run inside the building.

4  Baber's report identified the "younger male" by name and date of birth. This revealed he was, at the time, an eleven-year-old boy. We will thus not disclose his name or any other personal information. 

5  In this reference to "police" we presume the judge was referring to Baber since he was the only officer who actually saw the suspect.

6  Detective Green described the building where defendant's apartment was located as a three story, multi-family apartment building.