Law Enforcement Caselaw

STATE OF NEW JERSEY VS. THOMAS W. BERNOKEITS, JR. A-3150-10T4

2012-01-08T21:17:00.001-05:00

STATE OF NEW JERSEY VS. THOMAS W. BERNOKEITS, JR. A-3150-10T4

We hold that standard, roadside field sobriety testing does not require the police to have probable cause to arrest or to search, but rather may be undertaken on the basis of a reasonable articulable suspicion alone that defendant was driving while intoxicated. 12-22-11

positive drug result not always neglect for DFYS V.T., G.G. AND R.S.

2012-01-08T21:16:00.001-05:00

positive drug result not always neglect for DFYS V.T., G.G. AND R.S.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES.           V.T., G.G. AND R.S.

A-2571-10T4

     R.S. appeals the finding that he neglected his eleven-year- old daughter by testing positive for drugs at two supervised visits.  The Division of Youth and Family Services acknowledges that he behaved properly at both visits.  We hold that under these circumstances, the positive test results in themselves are not sufficient evidence of abuse or neglect.  12-21-11

STATE OF NEW JERSEY VS. NICOLE M. HOLLAND // STATE OF NEW JERSEY VS. KENNETH S. PIZZO, JR. A-4384-09T3/A-4775-09T3

2012-01-08T21:15:00.001-05:00

STATE OF NEW JERSEY VS. NICOLE M. HOLLAND // STATE OF NEW JERSEY VS. KENNETH S. PIZZO, JR. A-4384-09T3/A-4775-09T3

STATE OF NEW JERSEY VS. NICOLE M. HOLLAND // STATE OF           NEW JERSEY VS. KENNETH S. PIZZO, JR.

          A-4384-09T3/A-4775-09T3

     We hold that sufficient credible evidence supports the remand court's findings that the Control Company digital thermometer is comparable in all material respects to the Ertco- Hart digital thermometer previously used during the Alcotest calibration process, and that the Control Company certificate is facially valid and satisfies the requirements as a foundational document as required by State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).  12-20-11

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS A-5962-08T3

2012-01-08T21:12:00.001-05:00

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS A-5962-08T3

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF           CORRECTIONS

A-5962-08T3

     An inmate at the Adult Diagnostic Treatment Center (ADTC) challenged the authority of the Commissioner of the Department of Corrections to transfer inmates to the ADTC who do not meet the qualifications for confinement at the ADTC set forth in the Sexual Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, more specifically the provisions of N.J.S.A. 2C:47-3.  We concluded that the very specific provisions of the SOA, as explored at length by the Supreme Court in In re Civil Commitment of W.X.C., 204 N.J. 179, 196-99 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011), significantly limit the Commissioner's otherwise broad discretion to assign inmates to available institutions under N.J.S.A. 30:4-91.2, and that only sex offenders who meet each of the three criteria set forth in the SOA can be confined at the ADTC.  Those criteria are: (1) the offender's conduct was characterized by a pattern of repetitive, compulsive behavior, (2) the offender is amenable to sex offender treatment, and (3) the offender is willing to participate in such treatment.  12-02-11

State v. Reynold Regis (A-81-10; 066947)

2012-01-08T21:11:00.001-05:00

State v. Reynold Regis (A-81-10; 066947)

N.J.S.A. 39:4-88(b) describes two separate and

independent offenses, one for a driver’s failure to

maintain a lane to the extent practicable and the

other for changing lanes without ascertaining the

safety of the lane change. 12-14-11

STATE OF NEW JERSEY VS. JOHN J. LAWLESS, JR. A-2064-10T3

2012-01-08T21:07:00.003-05:00

STATE OF NEW JERSEY VS. JOHN J. LAWLESS, JR. A-2064-10T3

Defendant pled guilty to aggravated manslaughter and

driving while intoxicated. After consuming a large amount of

beer, defendant fell asleep at the wheel of his car, crossed the

center line of the road and collided with an on-coming car,

killing the driver and causing serious injuries to the

passengers. Citing aggravating factors two (the gravity and

seriousness of the harm inflicted), three (the risk that

defendant will commit another offense), six (the extent of

defendant's prior criminal record), and nine (the need for

specific and general deterrence), the judge imposed a thirtyyear

term of imprisonment for the aggravated manslaughter

charge.

We held that the record did not support reliance on

aggravating factor two because defendant pled guilty to only one

charge involving one victim; therefore, the judge could not rely

on the injuries suffered by other victims of the collision. We

also held that the judge could not rely on multiple prior

driving while intoxicated convictions because these charges are

not considered crimes. We remanded for reconsideration of the

sentence in accordance with the aggravating factors supported by

the record. 12-07-11

John Rogers v. Cape May County Office of the Public Defender (A-63-10; 067048)

2012-01-08T21:07:00.001-05:00

John Rogers v. Cape May County Office of the Public Defender (A-63-10; 067048)

Defendant was not “exonerated” until the indictment

was dismissed with prejudice on July 25, 2008, and his

claim was thus not barred by the one-year filing

limitation in N.J.S.A. 59:8-9. Nevertheless, because

the claim was filed ten days beyond the ninety-day

limit set forth in N.J.S.A. 59:8-8, further

proceedings are required to determine whether the

“extraordinary circumstances” standard in N.J.S.A.

59:8-9 was satisfied. 12-5-11

State v. Stanford Yough (A-67-10; 066950)

2012-01-08T21:06:00.001-05:00

State v. Stanford Yough (A-67-10; 066950)

The trial court did not err in denying defendant

Stanford Yough’s motion for a mistrial after the

victim testified on direct and cross-examination that

he observed defendant more times than he had indicated

in his statement to the police. No errors occurred

during those exchanges that were clearly capable of

producing an unjust result. 11-30-11

STATE OF NEW JERSEY VS. JEFFREY S. ZEIKEL A-1495-10T4 11-09-11

2012-01-08T21:05:00.000-05:00

STATE OF NEW JERSEY VS. JEFFREY S. ZEIKEL A-1495-10T4

Defendant was correctly sentenced as a third-time DWI

offender based on a prior conviction in New Jersey for DWI and

two prior convictions in New York State for driving while

ability impaired. The New York convictions were "of a

substantially similar nature" as a DWI violation in New Jersey.

See N.J.S.A. 39:4-50(a)(3). Defendant's constitutional,

statutory, and factual challenges to the consideration of his

1980s New York convictions are rejected.

Kenneth Vercammen is a regular author in Law Enforcement Publications

2012-01-01T21:24:00.000-05:00

Kenneth Vercammen is a regular author in Law Enforcement Publications including:

“Wills & Estate Planning For Police Officers The New Jersey Police Chief Magazine May 2011

Top 25 Cases Affecting Law Enforcement 2011 The New Jersey Police Chief Magazine April 2011

”Prosecuting the Speeding Ticket” The New Jersey Police Chief Magazine July/ August 2010

“Prosecuting Driving While Suspended Cases” The New Jersey Police Chief January 2010

“Top Municipal Court and Criminal Cases 2009” The Middlesex Advocate February 2010

Prosecuting the Driving Without Insurance Violation 39:6B-2” The New Jersey Police Chief November, 2009

“ Major Municipal Court and Criminal Cases in New Jersey” The New Jersey Police Chief July 2009

39:3-66. Maintenance of lamps, reflectors

2011-12-27T11:48:00.000-05:00

39:3-66. Maintenance of lamps, reflectors
All lamps, reflectors and other illuminating devices required by this article shall be kept clean and in good working order and, as far as practicable, shall be mounted in such a manner as to reduce the likelihood of their being obscured by mud or dust thrown up by the wheels.

Maintenance of lamps

$54

9:8-4 Reinspection

2011-12-27T11:45:00.001-05:00

9:8-4 Reinspection
39:8-4 a. If inspections as required by R.S. 39:8-1 disclose the necessity for adjustments, corrections or repairs, the director shall cause a rejection sticker to be issued.

b. The director may require the owner of a motor vehicle requiring an adjustment, correction or repair that is not emission-related to have that adjustment, correction or repair made and thereafter have the vehicle reinspected at an official inspection facility or at a licensed private inspection facility within the period designated by the director.

The director may cause a certificate of approval to be issued for a motor vehicle needing an adjustment, correction or repair that is not emission-related in order to conform to the requirements of chapter 3 and chapter 8 of this Title, but which, in the director's determination, is nevertheless safe. In such cases the director shall issue notice to the vehicle owner to have the adjustment, correction or repair made within a specified period of time, subject to the penalties of R.S.39:8-9.

c. The director shall require the owner of a motor vehicle requiring an adjustment, correction or repair that is emission-related to have that adjustment, correction or repair made and thereafter have the vehicle reinspected at an official inspection facility or at a private inspection facility, as determined by the director, within the period designated by the director.

39:8-4

Failure to make repairs

$130

N.J.S.A. 39:4-50 1st Offense – BAC 0.08% or higher, but less than .10%,

2011-12-26T22:30:00.000-05:00

N.J.S.A. 39:4-50

1st Offense – BAC 0.08% or

higher, but less than .10%,

or observation case

1st Offense – BAC

0.10% or higher or

operation under

influence of drugs 1st Offense 2nd Offense

3rd or Subsequent

Offense

39:4-50

Continued

Driving While Intoxicated Driver’s license suspension

for a period of 3 months, and

Driver’s license

suspension for not less

than 7 months nor more

than 1 year, and

Driver’s license

suspension for 2

years, and

Community service

for 30 days, and

Driver’s license

suspension for 10

years, and

IDRC 12 to 48 hours spent

during 2 consecutive days of

not less than 6 hours each

day, and

IDRC 12 to 48 hours

spent during 2

consecutive days of not

less than 6 hours each

day, and

May order participation in

supervised visitation program

as either a condition of

probation or form of

community service, and

May order participation in

supervised visitation

program as either a

condition of probation or

form of community

service, and

May order

participation in

supervised

visitation program

as either a

condition of

probation or form of

community service,

and

May order

participation in a

supervised visitation

program as either a

condition of probation

or form of community

service and

39:4-50

Continued

Driving While Intoxicated May order installation of an

interlock device for not less

than 6 mos. nor more than 1

year commencing

immediately on return of

offender’s driver’s license

(39:4-50.17), and

If BAC is less than .15%

may order installation of

an ignition interlock

device for not less than 6

mos. nor more than 1

year commencing

immediately on return of

offender’s driver’s

license, and

Shall order

installation of

ignition interlock

device during

license suspension

and for not less

than 1 year nor

more than 3 years

commencing

immediately upon

return of offender’s

driver’s license, and

Shall order

installation of ignition

interlock device

during license

suspension and for

not less than 1 year

nor more than 3

years commencing

immediately upon

return of offender’s

driver’s license, and

BAC of .15% or higher

shall order installation of

ignition interlock device

during period of

suspension and for not

less than 6 mos. nor

more than 1 year

beginning immediately

upon return of offender’s

driver’s license.

N.J.S.A. 39:4-50 1st Offense – BAC 0.08% or higher, but less than .10%, or observation case 1st Offense – BAC

2011-12-26T22:29:00.000-05:00

N.J.S.A. 39:4-50

1st Offense – BAC 0.08% or

higher, but less than .10%,

or observation case

1st Offense – BAC

0.10% or higher or

operation under

influence of drugs 1st Offense 2nd Offense

3rd or Subsequent

Offense

39:4-50 Driving While Intoxicated $250 to $400 fine, and $300 to $500 fine, and $500 to $1000 fine,

and

$1000 fine, and

VCCA $50, DDEF $100,

SNSF $75, $100 surcharge,

and

VCCA $50, DDEF $100,

SNSF $75, $100

surcharge, and

VCCA $50, DDEF

$100, SNSF $75,

$100 surcharge,

and

VCCA $50, DDEF

$100, SNSF $75, and

$100 surcharge, and

In court’s discretion,

imprisonment not exceeding

30 days, and

In court’s discretion,

imprisonment not

exceeding 30 days, and

Imprisonment of

not less than 48

consecutive hours,

which shall not be

suspended or

served on

probation, nor more

than 90 days (court

may authorize 2

days through

IDRC), and

Imprisonment not

less than 180 days in

county jail or

workhouse – no

work-release, outpatient,

etc.: must

do time in

confinement.

Except the court may

order defendant to

serve up to 90 days

of that sentence

participating in a drug

or alcohol inpatient

rehabilitation program

approved by the

IDRC, and

Police Officers are invited to Ken Vercammen’s Christmas Party and Holiday Social Friday, December 2

2011-10-29T21:03:00.001-04:00

Police Officers are invited to Ken Vercammen’s Christmas Party and Holiday Social

Friday, December 2 5:00pm - 7:00pm

Bar Anticipation “Where summer never ends”

703 16th Avenue

Lake Como/ Belmar, NJ 07719

Free

5-8 Hot & Cold Buffet with carving station

$1.00 Drafts 6-7 [need special wrist band from Ken V]

We are in the back room past the stage, called the Mahogany Room, near the outdoor bar.

This is open to your friends. If attending contact Ken’s Law Office so we can put your name on the list for wristbands 732-572-0500

Bring a canned food donation for the St. James Food Bank Hands of Hope. Meet the "SuperLawyers" of NJ.

Free gifts to clients & friends. The following will be offered:

Coffee Travel Mugs

Yellow T-Shirt "My attorney fights to win"

Can Coozies

Water Bottle

Stadium Cup

Magnet clip

Band-Aid holders

Candy/ breath mints

Fish cards

More details at http://www.facebook.com/event.php?eid=175941519154087

http://www.njlaws.com/Christmas-party.htm

STATE OF NEW JERSEY VS. JOSEPH DIORIO A-4981-07T4

2011-10-22T11:40:00.001-04:00

STATE OF NEW JERSEY VS. JOSEPH DIORIO A-4981-07T4

We affirm defendant's convictions for his role in a planned bankruptcy, also known as a "bust-out" scheme. We find that the indictment was returned within the statute of limitations period because the theft by deception was not completed until the contractual period for repayment had ended, not when the goods were received. Additionally, we reject defendant's argument that an oral plea agreement existed. 10-20-11

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

2011-09-19T17:11:00.001-04:00

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

2011-09-19T17:10:00.001-04:00

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

2011-09-19T17:09:00.002-04:00

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

2011-09-19T17:09:00.001-04:00

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

2011-09-19T17:06:00.003-04:00

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)

2011-09-19T17:06:00.001-04:00

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)

2011-09-19T17:04:00.000-04:00

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.

NJ Public Movers and Warehousemen Frequently Asked Questions?

2011-08-29T11:09:00.000-04:00

Public Movers and Warehousemen
Frequently Asked Questions?

Do public movers and warehousemen have to be licensed to operate within New Jersey?
Yes. Since February 1999 all public movers/warehousemen operating intrastate (within New Jersey) must obtain a license from the Division of Consumer Affairs. Licenses are of three types: PM: which is a license to move only; PW: which is a license for warehousing only; or PC: a combination license which permits both moving and warehousing.
Top
How do I know if a mover/warehouseman is licensed?
You may call the Division of Consumer Affairs at (973) 504-6442 or 6512 to check on the status of a license held by a mover or warehouseman.
Top
How do I select a mover?
The Division of Consumer Affairs, as a state agency, cannot recommend movers or warehousemen.
Top
What does an "estimate" mean?
When a consumer requests an estimate from a mover or warehouseman (after verifying that the company is licensed), the mover must then send an estimator to your home to: (a) perform a physical survey of the goods you are planning to move; (b) give you a copy of the estimate, filled out legibly; and (c) present you with a copy of a brochure entitled Important Notice to Consumers Using Public Movers (which is a state-approved brochure). These three elements are MANDATORY and intended for your protection. The calculation of the estimate itself is based upon the mover's tariff, which is a formal schedule of rates and charges, copies of which are kept on file in the mover's main office and with the Division of Consumer Affairs. To insure the accuracy of an estimate, you must show the estimator everything you are planning to move and consider the costs of insurance, packing, and other charges, i.e., special services or rigging which might be needed.
Top
What is a "binding estimate?"
A binding estimate stipulates a fixed cost, agreed upon by both the mover and the consumer. Binding estimates (also known as a flat rate, a fixed rate, or a Not to Exceed Estimate) have been legal in New Jersey since September 1998. A binding estimate may be requested of a mover, but the movers is not legally obliged to offer one unlike an estimate, in a binding estimate. The mover may charge more than his tariff prices. This advantage is that he cannot charge you more than the total cost of the binding estimate, unless you ask him to preform additional moving or accessorial services not covered by the binding estimate.
Top
What comes next?
After selecting a mover, a copy of the Order for Service must be issued to youat least 24 hours in advance of the scheduled move date, so that you have an opportunity to acquaint yourself with its terms. It becomes valid only after it has been signed by both the mover and the consumer. Read it carefully. A copy of the Bill of Lading must also be issued to you (this serves primarily as an itemized final bill). If you are planning storage as well, then a copy of the Warehouse Receipt also must be issued to you (this lists the items to be warehoused, as well as the terms, conditions and location of such a service).
Top
What about payment?
The method of payment should be discussed and confirmed at the time of the estimate. Many movers in New Jersey require payment in cash or certified check. Other arrangements should be clearly verified before the move.
Top
What about tipping?
Tipping is a matter left solely to the discretion of the consumer. There is no policy or regulation regarding it, and no mover has the right to demand a tip.
Top
What about packing?
If you pack your own goods, you are responsible for their condition upon arrival. The mover retains the right to refuse transport of such goods if, in his opinion, the goods may be damaged during the move (e.g. unpacked mirrors, china or other fragile items). If the mover does the packing, the mover is liable, but only up to reimbursement of $.60 per pound, per article, unless you have purchased insurance. For your own protection, you are strongly advised to move any money, jewelry and personal papers, as well as items of extraordinary value, yourself. Such items are specifically not covered under the terms of the Order for Service and most types of insurance.
Top
What about insurance?
The mover's mandated minimum liability is $.60 per pound, per article. This is automatically in effect for all intrastate moves and applies in most cases, unless the goods have been packed by the consumer. For example, if a vase weighing six pounds is damaged, the consumer is legally entitled to $3.60 (6 lbs. X $.60) worth of liability. If you wish to insure your goods, you can: (a) select an independent broker of your own choice; (b) purchase insurance through the mover, if the mover offers it; or (c) you may already be covered if you have a homeowner's policy. If the mover sells the consumer insurance, the mover must issue a Certificate of Insurance (also known as Advice of Coverage), which stipulates the terms of the policy. You are advised to discuss with your insurance agent the amount and type of insurance you should purchase and the amount of the deductible, if any.
Top
What about punctuality?
Punctuality is an important goal to any mover, but the variables of weather, traffic, highway construction and detours, as well as mechanical failure, should always be taken into consideration. If a mover is delayed, for whatever reason, the mover's only obligation is to contact the consumer no later than 12 noon on the date of the move, or if the move is scheduled later, at the earliest possible time thereafter.

Notices to the Bar Judge Bradley J. Ferencz is Presiding Judge of the Criminal Division of Superior Court for Middlesex County (Vicinage 8).

2011-08-29T09:45:00.000-04:00

Notices to the Bar

It is ORDERED that effective September 1, 2011 and until further order, Superior Court Judge Bradley J. Ferencz is hereby designated as the Presiding Judge of the Criminal Division of Superior Court for Middlesex County (Vicinage 8). This will amend the 2011-2012 General Assignment Order dated June 30, 2011, in particular the provision of that order that designated an Acting Presiding Judge for the Criminal Division in Vicinage 8.

STATE OF NEW JERSEY v. LAMBERT A-5323-09T4 May 5, 2011

2011-08-05T17:02:00.000-04:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5323-09T4

STATE OF NEW JERSEY, Plaintiff-Appellant, v. ZAIRE E. LAMBERT, Defendant-Respondent.

Submitted January 25, 2011 - Decided May 5, 2011

Before Judges Wefing, Payne and Koblitz.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Indictment No. 09-09-3055.

Warren W. Faulk, Camden County Prosecutor,

attorney for appellant (Rachael Minardi,

Assistant Prosecutor, of counsel and on

the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent (Diane Toscano,

Assistant Deputy Public Defender, of

counsel and on the brief).

PER CURIAM

Defendant was charged with one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and one count of receiving stolen property, N.J.S.A. 2C:20-7. Defendant filed a motion to suppress the evidence seized during a search of a vehicle, and the trial court granted the motion. The State appeals, pursuant to leave granted, from the trial court's order granting that motion. After reviewing the record in light of the contentions advanced on appeal, we reverse.

One witness testified at the motion, Patrolman Al Higginbotham of the Clementon Police Department. Higginbotham was on routine patrol on the night of May 13, 2009, and shortly after 11:00 p.m. was patrolling the area around the Pine Valley Court Apartments, a multi-building complex; he was in a marked troop car, by himself. Higginbotham testified that the area was "a high crime area, [with] a lot of drugs, a lot of burglaries, had a couple of home invasions there, assaults." He himself had made a number of arrests in the area.

He noticed a car in the parking lot with its lights out in which several people were sitting. He decided to approach the car because of his knowledge of the area's reputation for narcotics trafficking. Before doing so, however, he radioed his intention to the department's central dispatch. Higginbotham stopped his patrol car behind the parked vehicle and perpendicular to it. He said he did not block the vehicle in when he parked his patrol car and that there was sufficient room for the vehicle to back up and leave if the driver had wanted to do so. While he did not formally request the assistance of back-up units, two other patrol cars, which had evidently been nearby, pulled into the lot as he was getting out of his patrol car and approaching the parked vehicle. He identified the other two officers as Patrolman Clark and Sergeant Laub. Higginbotham testified that it was a common procedure for central dispatch to notify other units in the area that an officer was going to investigate a suspicious vehicle. He said that when they arrived, they also got out of their vehicles and came toward the car. None of the three officers turned on the emergency lights in their patrol cars. He also said that while he did not remember how the two officers parked their patrol cars, he did not believe that they would have prevented the driver from moving his car from the scene if he had wanted to do so. The defense did not present any testimony that the patrol cars in any way hemmed in the other car.

Higginbotham testified that it was very dark in the parking lot and that it was not until he approached the car, that he could see that three individuals were in the car, the driver, the front-seat passenger, and the driver's-side, rear-seat passenger. The driver's-side window was partially rolled down, and as he approached the car, he could detect the odor of raw marijuana. The driver rolled down his window all the way, and the odor of marijuana became stronger. Higginbotham asked the driver why he was parked there, and the driver responded that he had been visiting his cousin and came outside to talk to his friends. Higginbotham asked the driver where was his cousin and the driver answered, "The F Building right there." He was pointing, however, to the "J" Building.

Higginbotham then asked for identification from all three men, and two were able to produce documentation; the third identified himself verbally. None of the three lived at the apartment complex. Higginbotham then called his dispatcher and asked that a warrant check be run; he learned that there was an outstanding warrant for the driver. He then asked the driver to step out of the car and spoke to him at the rear. He asked who owned the car, and the driver responded that it belonged to the front-seat passenger, defendant. Higginbotham again asked the driver where he was coming from, and this time he pointed toward the "F" Building and said he was coming from the "F" Building. When asked why, just a few minutes earlier, he had pointed to the "J" Building, he denied doing so.

Higginbotham placed the driver in one of the other patrol cars that had responded to the scene and then approached defendant, the front-seat passenger. He asked defendant if the car was his, and he responded that his mother leased it. Higginbotham again smelled the odor of raw marijuana and asked defendant and the individual in the back seat to both step out, and they did so. Higginbotham asked if he could search the car, and defendant agreed. Higginbotham gave him a form to execute, indicating his consent, and defendant signed it. Higginbotham testified that before defendant signed the form, he explained it to defendant, and explained that he did not have to agree to the search. He said that defendant's demeanor was cooperative throughout and that he signed the form willingly.

Although the consent form was admitted into evidence at the hearing, it has not been supplied to us in connection with the appeal. From testimony presented, however, the following additional facts were presented. The time noted for execution of the form was 10:30 p.m. Higginbotham testified that was clearly incorrect, that the time was 11:30 p.m. He also testified, however, that defendant inserted the time when he signed the form, not Higginbotham. In addition, execution of the form gave consent to search two vehicles, the one in which the three men had been sitting, and another, parked nearby. Higginbotham testified that defendant told him that he owned that vehicle, and thus Higginbotham included it on the form.

After obtaining defendant's consent, Higginbotham entered the car and uncovered what he termed a "chunk" of marijuana between the seat and the center console, which he estimated at less than fifty grams. With that discovery, Higginbotham called the dispatch office to see if there was a K-9 unit in the area. He learned that one was nearby and would respond to the scene. It arrived in approximately ten minutes. Higginbotham said he did not conduct any further search of the car in the interim but simply waited for the K-9 unit to arrive. Higginbotham testified that one of the reasons he waited was Sergeant Laub's uncertainty whether the executed consent form conferred permission to search the trunk. While they were waiting, Sergeant Laub contacted someone from the prosecutor's office, who advised him that it did.

When the dog did arrive, his handler first placed him in the car and then had him walk around the car. The handler told Higginbotham that the dog had reacted both to the car's console and the trunk. Higginbotham opened the console and found cash in the sum of $632, in denominations of twenty dollars and less. Higginbotham, together with Sergeant Laub, then turned to the trunk, opening it with the keys that had been in the ignition. They could see the remnants of marijuana on the driver's side panel. They looked further and came upon a loaded Taurus nine millimeter pistol in the wheel well area. They called in the weapon's serial number to dispatch and learned that it had been reported as stolen in Pennsauken. Defendant was placed under arrest. Based upon a supervisor's recommendation, Higginbotham did not search the vehicle that defendant had identified as belonging to him.

Following this testimony, the trial court granted defendant's motion to suppress. In the court's oral opinion, it made no findings with respect to Higginbotham's credibility, i.e., whether it accepted his testimony as credible or did not. In that opinion, it rejected the State's characterization of Higginbotham's initial encounter with the three occupants of the car as a field inquiry. It stressed the presence of the three patrol cars on the scene and its view that as a consequence, the driver of the car in question would not have considered himself free to leave the scene. It concluded, rather, that it was an investigatory stop, and since Higginbotham did not have reasonable and articulable suspicion to support an investigatory stop, the subsequent search, although done with consent, was invalid. Thereafter, we granted the State's motion for leave to appeal.

On appeal, the State raises the following arguments for our consideration:

POINT I: THE TRIAL COURT ERRED IN FINDING THAT OFFICER HIGGINBOTHAM DID NOT POSSESS REASONABLE AND ARTICULABLE SUSPICION TO CONDUCT AN INVESTIGATIVE STOP OF DEFENDANT.

[Raised Below.]

POINT II: THE TRIAL COURT ERRED IN FINDING THAT OFFICER HIGGINBOTHAM'S INITIAL CONTACT WITH DEFENDANT CONSTITUTED AN INVESTIGATIVE DETENTION; RATHER, THE POLICE ENCOUNTER BEGAN AS A LAWFUL FIELD INQUIRY. [Raised Below.]

We note initially the standard governing our review of this matter. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record . . . . [A] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). Our review of its legal conclusions, on the other hand, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Our New Jersey Constitution provides similar protections. N.J. Const. art. I, ¶ 7. Not all encounters between a citizen and the police implicate the Fourth Amendment. For instance, police may approach a person in a public place and ask him if he is willing to answer some questions without any grounds for suspicion. State v. Rodriguez, 172 N.J. 117, 125-26 (2002). The individual has no obligation to answer and is free to move on. If, however, the individual's right to leave the scene is obstructed, even briefly, there has been a seizure of his person within the meaning of the Fourth Amendment. Id. at 126. The police "may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds or suspicion." State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.), certif. denied, 172 N.J. 178 (2002). "Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles." Ibid.

A field inquiry is "the least intrusive encounter" between a citizen and the police. State v. Pineiro, 181 N.J. 13, 20 (2004). It occurs when an officer approaches an individual and asks if he or she would be willing to answer some questions. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 510 (2003)).

An investigatory stop, on the other hand, is more intrusive and

is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of the circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

[State v. Davis, 104 N.J. 490, 504 (1986).]

"A key distinction between a field inquiry and an investigative stop is whether, considering the totality of the circumstances, a reasonable person would feel that the police had encroached on his or her freedom to leave." State v. Daniels, 393 N.J. Super. 476, 484 (App. Div. 2007).

The trial court here concluded that the presence of the three police vehicles at the scene transformed this encounter from a permissible field inquiry into an investigative detention. In our view, the trial court's analysis of this question was incomplete and did not recognize the testimony of Higginbotham that it was the practice of the department to notify nearby units that an officer was approaching a car to inquire further.

What the record does indicate is that Higginbotham was by himself, patrolling a high crime area at night. The scene was dark and not well-lit. He saw a vehicle parked, with several occupants, with the engine off and no lights. In light of his knowledge of the level of criminal activity in the area, which included drugs, burglaries and assaults, it was entirely reasonable for him to stop to talk to the occupants.

We should not view the events of that night in isolation. If Higginbotham was justified in approaching the car on a field inquiry, we are unable to conclude that constitutional principles required that he do so on his own, without the protection afforded to him by the presence of other officers. We cannot turn a blind eye to the inherent dangers officers face every day. Just as we have an obligation to ensure the rights of the citizens with whom the police come in contact, we have an equal obligation not to require that the police expose themselves to avoidable risks.

The trial court, moreover, in its oral opinion, completely disregarded Higginbotham's testimony that as he approached the car, he "immediately detected an odor of raw marijuana." That additional element provided ample support for all that followed.

The order granting defendant's motion to suppress is reversed, and the matter is remanded to the trial court for further proceedings.

STATE OF NEW JERSEY v. J.F.P A-4380-09T1 May 9, 2011

2011-08-05T16:58:00.000-04:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4380-09T1

STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.F.P., Defendant-Appellant.

Argued March 15, 2011 – Decided May 9, 2011

Before Judges Wefing, Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-08-00551.

Barbara Schwartz argued the cause for appellant.

William A. Guhl, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Guhl, on the brief).

PER CURIAM

Defendant J.F.P. appeals his April 16, 2010 conviction of third-degree issuing a bad check, N.J.S.A. 2C:21-5, after pleading guilty to the only count of Somerset County Indictment No. 07-08-00551. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for reconsideration of defendant's termination from the Pre-trial Intervention (PTI) Program.

A Somerset County Grand Jury indicted defendant on August 8, 2007, alleging in one count that on November 8, 2005 and November 20, 2005, defendant issued two checks for $1435.50, knowing they would not be honored. The State informed us in its brief that on November 8, 2005, defendant issued a check to Bobcat of Central Jersey (Bobcat) to pay for equipment rentals. He wrote on the check, in the memo section, "November 1/2 Payment." The check was returned for insufficient funds on November 18, 2005. Another check submitted by defendant to Bobcat in the same amount on November 20, 2005, was not honored because it was drawn on a closed account. He wrote on that check "November 2nd 1/2 Payment."

Defendant was admitted into PTI on December 19, 2007. As special conditions of PTI, he was ordered to perform fifty hours of community service and to pay restitution to Bobcat in the amount of $2871, a $50 PTI enrollment fee pursuant toN.J.S.A. 2C:43-3.1(2)(d) and a $75 Safe Neighborhood Assessment pursuant to N.J.S.A. 2C:43-3.2a(2), totaling $2996 in payments.

On October 17, 2008, the Somerset County Probation Department recommended a second twelve-month postponement in a memorandum, which provides in its entirety:

On 12/19/07, the above named defendant was placed in the Pretrial Intervention Program for the charge(s) of Bad Checks over $200-Knowing. The defendant has reported as directed, completed his 50 hours of Community Service, and [is] working full time. The defendant tested negative for all random urine/oral swab specimen[s] while pending these charges. The defendant has a significant balance remaining of $1,175.00. Therefore, it is respectfully recommended that the defendant be granted a 2nd postponement of 12 months to allow him to pay his monies in full.

An order of postponement was signed by the court on October 27, 2008.

A notice of intent to terminate PTI was sent December 31, 2008, and on February 2, 2009, after a hearing, defendant was terminated from the program for failure to report, failure to follow through on substance abuse treatment and failure to make timely restitution payments. On April 9, 2009, defendant pled guilty to the one-count indictment.

Defendant then obtained new counsel who sought reconsideration of defendant's PTI termination by the judge who accepted defendant's guilty plea, not the judge who conducted the original termination hearing. This motion was denied. Defendant was sentenced on April 16, 2010, to two years of probation, seventy-five hours of community service and payment of the balance of the restitution owed to Bobcat, as well as the mandatory penalties including another $75 Safe Neighborhood Assessment. The court indicated it would "consider early termination from probation at/after 12 months provided fees and restitution [are] paid in full."

On appeal defendant raises the following issues,

POINT I

The State having waited so long to bring the indictment, without any explanation, violated Defendant's due process rights.

POINT II

The court failed to give proper weight through a full hearing as to Probation Supervisor and Officer Robert McGinley's memorandum to the court to reinstate the defendant to PTI after Probation mistakenly recommended termination.

POINT III

Defendant's attempts to make full restitution in this matter and PTI inability to accept payment should not now be used to disqualify him from PTI.

In Point I of his brief, defendant argues that the delay between his issuance of the checks in November 2005 and the indictment on August 8, 2007, as well as the delay between the indictment and plea, violated his Sixth Amendment due process rights, as well as the time frames and procedures set forth in Rule 3:9-1.

In State v. Townsend, 186 N.J. 473 (2006), our Supreme Court held that a defendant alleging a due process violation based on pre-indictment delay has the burden of showing that "(1) the State's delay in seeking an indictment was a deliberate attempt to gain advantage over [the defendant], and (2) the delay caused defendant actual prejudice in his ability to defend the charge." Id. at 489 (citing United States v. Gouveia, 467 U.S. 180, 192, 104 S. Ct. 2292, 2299, 81 L. Ed.2d 146, 157 (1984)). We previously recognized in State v. Aguirre, 287 N.J. Super. 128, 132-33 (App. Div.), certif. denied, 144 N.J. 585 (1996), that it is "perfectly legitimate" for the prosecution to delay an indictment "to gather additional evidence against an accused or to broaden the investigation," and that prosecutors "should not be discouraged from thoroughly investigating possible crimes, particularly those involving multiple participants or multiple transactions." See also United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2049-50, 52 L. Ed.2d 752, 759-61 (1977).

A defendant must show, "actual prejudice, not possible or presumed prejudice," to support a due process claim. State v. Alexander, 310 N.J. Super. 348, 355 (App. Div.) (quoting Aguirre, supra, 287 N.J. Super. at 133), certif. denied, 156 N.J. 408(1998). "'Vague assertions of lost witnesses, faded memories, or misplaced documents are insufficient to establish a due process violation from pre-indictment delay.'" Alexander, supra, 310 N.J. Super. at 355 (quoting United States v. Beszborn, 21 F.3d 62, 67 (5th Cir.), cert. denied, sub. nom. Westmoreland v. United States, 513 U.S. 934, 115 S. Ct. 330, 130 L. Ed.2d 288(1994)); see also State v. Rodriguez, 112 N.J. Super. 513, 516-17 (App. Div. 1970) (rejecting the defendant's contention that he was unduly prejudiced by his failure to remember his activities on the critical dates that he sold marijuana to an undercover agent), certif. denied, 61 N.J. 156 (1972).

Defendant notes in his certification in support of his motion to reconsider his termination of PTI, the "emotional strain . . . affecting his marriage, his ability to work and his ability to defend" caused by the delay. He points to no "actual prejudice."

The State maintains the following facts, based on documents attached to its brief. After unsuccessful attempts by Bobcat to collect, the matter was referred to the Green Brook Police Department on January 23, 2007. The police also made efforts to collect restitution from defendant, preferring to handle the matter informally. Although defendant gave the Green Brook police money orders totaling $1450, the police returned the money orders to defendant as being insufficient restitution. A criminal complaint was then signed on July 3, 2007, and defendant was indicted the following month. Thus, the pre-complaint delay was due to an attempt by the police to resolve the situation without criminal repercussions for defendant.

The post-indictment delay was attributable to defendant's admission to and subsequent termination from PTI. Defendant voluntarily entered into the PTI program, a program intended to benefit defendants by offering rehabilitation without a resulting criminal record. See Pressler & Verniero, Current N.J. Court Rules, Guideline 1 on R. 3:28 (2011). Asubstitution of defense counsel, as well as various defense motions including a motion for leave to appeal, further delayed the ultimate disposition. The statute of limitations for this third-degree crime is five years. N.J.S.A. 2C:1-6b(1). The criminal complaint was signed twenty months after the checks were negotiated, and defendant was indicted one month later. Defendant spent no time incarcerated during this process nor can he point to any difficulty in defending against the charge due to the delay. See State v. Long, 119 N.J. 439, 470-71 (1990) (finding no speedy trial violation because there was "no indication that the prosecution intentionally delayed the proceedings to gain an unfair, tactical advantage"), superseded by statute on other grounds, N.J.S.A. 2C:11-3i. Time elapsed here only as a result of efforts by the police, State and probation department to assist defendant to avoid a criminal record. We therefore reject the argument defendant advances in Point I.

In Point II of his brief, defendant argues that the court did not give sufficient weight to the Somerset County Probation Department memorandum to defense counsel of July 15, 2009, more than five months after defendant received a summary PTI termination hearing as required by statute. N.J.S.A. 2C:43-13e. This memorandum indicates that probation

would have no objection to reinstating [defendant's] PTI status provided your client pays off his restitution and fines forthwith in full through a money order. It should be noted that the 1st Asst. Prosecutor . . . is opposed and will object to reinstatement. In that the Prosecutor's Office is opposed to reinstatement the Probation Department will leave it to the discretion of the court.

In this memorandum, the probation department clearly defers to the discretion of the court and acknowledges the disagreement of the prosecutor. In general, the prosecutor has a greater voice in PTI admissions than the program director or probation. State v. Burbano, 304 N.J. Super. 215, 221-22 (Law Div. 1996); see State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (prosecutor's decision not to consent to PTI is entitled to "enhanced deference"); see also State v. Nwobu, 139 N.J. 236, 246, 253 (1995); State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980).

After defendant's termination from PTI in February 2009 and after he entered a guilty plea in April 2009, defendant sought to vacate the PTI termination and also sought other relief.^¹ The court denied defendant's application because it lacked jurisdiction, reasoning that Rule 3:28 does not provide defendant with the right to appeal a PTI termination to the Law Division. See State v. Moraes-Pena, 386 N.J. Super. 569, 578 (App. Div.) (holding that after a guilty plea, an initial denial of PTI must be appealed to the Appellate Division because "[Rule 3:28] does not contemplate further proceedings at the trial level after a guilty plea is entered."), certif. denied, 188 N.J. 492 (2006). If defendant sought reconsideration of the termination decision, he should have brought that motion before the original judge prior to pleading guilty and within twenty days of termination from PTI. R. 1:7-4. We therefore reject defendant's argument that the court erred when it refused to vacate his PTI termination.

III

Defendant argues that he should not have been terminated from PTI because, among other reasons, the program director did not have the authority to require defendant to attend a drug evaluation and subsequent rehabilitation. The director clearly does have that authority. See Pressler & Verniero, Current N.J. Court Rules, Guideline 8 to R. 3:28 (2011). Defendant argues that he did not receive notice of reporting dates after he learned PTI would be extended. However, defendant did not respond to probation's attempts to contact him by phone to inform him.

Defendant argues also that his inability to make full restitution should not be used as a reason to terminate him, based on PTI Guideline 3(k), State in Interest of D.G.W., 70 N.J. 488 (1978) and State v. Harris, 70 N.J. 586 (1976). Defendant's failure to complete payment was the reason his PTI involvement was extended and was one of the three reasons listed on the notice of intent to terminate. The court that heard the termination hearing, however, did not base its decision to terminate on defendant's failure to make full restitution, finding to the contrary that defendant "was paying money but not showing up for review [or] supervision, and [was] not going to treatment."

Although not raised by defendant, we note a factual ambiguity in the record concerning the proper amount of defendant's restitution. At oral argument, the State represented that the second check written by defendant was issued to replace the first. The timing of the second check, two days after the return of the first check for insufficient funds, seems to support that interpretation. The indictment charged defendant in only one count for writing both checks. However, the notations on the two checks are ambiguous. The second check could be a proffer of payment of the second half of the amount due or an attempt to replace the first check which was not honored. Defense counsel, in her brief, indicates that Bobcat has a civil judgment against defendant of $15,000. Thus, defendant clearly owed Bobcat more than the sum of the two checks.

Restitution, whether through PTI or after sentencing, should encompass the harm done by the criminal behavior and not any additional debt owed by defendant. Only the amount defrauded by use of the two dishonored checks should be collected by the criminal justice system. Thus, if, as the State represented, defendant issued the second check to cover the first check, his restitution should have been set at $1435.50 rather than $2871. Had the lesser amount been set, defendant would have completed his payments and been discharged from PTI without the extension of PTI and prior to the notice of termination.

We thus remand for the court to reconsider defendant's termination from PTI. The court should determine, if it is disputed, whether or not the second check was written to replace the first. If it was, the court should then determine whether or not to dismiss the indictment, given defendant's full payment of restitution and performance of community service before the PTI termination process began.

Reversed and remanded.

1 Defendant's motion before the trial court was designated as follows:

1. Motion for Leave to Appeal Defendants Pretrial Intervention Termination R 3-28

2. Motion for Amendment R: 1:7-4 And/or Motion under R: 4:50-1

3. Motion for a Stay of Sentencing Hearing

4. Motion for Reconsideration of the Court's determination to terminate Defendant's Pretrial Intervention

GALEANO v. NEW JERSEY MOTOR VEHICLE COMMISSION A-0135-10T2 May 10, 2011

2011-08-05T16:50:00.000-04:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0135-10T2

JORGE GALEANO, Appellant, v. NEW JERSEY MOTOR VEHICLE COMMISSION, Respondent.

Argued April 12, 2011 – Decided May 10, 2011

Before Judges Yannotti and Skillman.

On appeal from the New Jersey Motor Vehicle Commission.

Joshua Altman argued the cause for appellant (Benedict & Altman, attorneys; Mr. Altman, of counsel and on the brief).

Elaine C. Schwartz, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Schwartz, on the brief).

PER CURIAM

Jorge Galeano (Galeano) appeals from a final determination of the Chief Administrator of the New Jersey Motor Vehicle Commission (Commission), suspending his driving privileges for 210 days due to an alcohol-related offense committed in the State of Florida. We reverse.

The relevant facts are undisputed. On December 8, 2003, the County Court for Dade County, Florida, entered an order finding Galeano guilty of driving under the influence of alcohol or drugs (DUI), in violation of Fla. Stat. § 316.193, following the entry of a nolo contendere plea.

The court ordered the suspension of Galeano's driver's license for a period of six months. Galeano was also placed on probation for six months, and required that he attend a substance abuse program. The court imposed a fine in the amount of $1254.75, including court costs, monetary surcharges and community service fines.

Thereafter, Galeano successfully completed a program in DUI education, which addressed substance abuse and driving. The Florida court entered a supplemental order dated July 2, 2004, which stated that his probation had been successfully terminated.

The Commission issued a notice dated July 19, 2010, informing Galeano that his driver's license would be suspended for 210 days, beginning August 13, 2010, as a result of an alcohol-related violation that occurred in Florida on August 19, 2003. By letter dated August 3, 2010, Galeano requested a hearing to contest the proposed suspension. The Commission responded with a letter dated August 16, 2010, denying the request for a hearing and stating that the suspension would take effect on September 10, 2010.

Galeano's counsel wrote another letter to the Commission dated August 31, 2010, in which he reiterated Galeano's request for an evidentiary hearing. Counsel stated that a license suspension relating back to a 2003 DUI offense in Florida would create an undue hardship because it would affect Galeano's ability to work and support his family. Counsel also stated that the length of time that had passed since the DUI conviction "create[d] a Due Process violation."

By letter dated September 1, 2010, the Commission advised counsel that Galeano was not entitled to an evidentiary hearing, and the order of suspension previously issued was the agency's final decision in the matter. This appeal followed. We granted Galeano's motion for a stay of the suspension pending disposition of the appeal.

On appeal, Galeano contends that the Commission erred by suspending his New Jersey driving privileges based on a 2003 out-of-state DUI conviction. Galeano asserts that suspension of his license under these circumstances violates his right to fundamental fairness and due process.

Here, the Commission suspended Galeano's license pursuant to the Interstate Driver License Compact, N.J.S.A. 39:5D-1 to -14 (Compact), to which New Jersey and Florida are parties. The Compact provides, among other things, that "[t]he licensing authority of a party State shall report each conviction of a person from another party State occurring within its jurisdiction to the licensing authority of the home State of the licensee." N.J.S.A. 39:5D-3.

The Compact further provides that, for purposes of imposing a suspension, revocation or limitation of the license to operate a motor vehicle, the licensing authority of the home State "shall give the same effect to the conduct reported" as the authority "would if such conduct had occurred in the home State[.]" N.J.S.A. 39:5D-4(a). The Compact states that the agency "shall apply" the home State's penalties for certain convictions, including convictions for DUI. N.J.S.A. 39:5D-4(a)(2).

We note that the record before us does not clearly establish the date upon which the Commission received notice of Galeano's Florida conviction. According to the Commission, the original notice was date-stamped, and the date on the original notice is "partially illegible." The Commission maintains that it received the notice of the Florida DUI conviction in July 2010, although the copy of the notice in the Commission's appendix does not have a readable date stamp. Moreover, the Commission never moved before us to supplement the record with a certification of an individual with personal knowledge attesting to the date upon which it received the notice.

In any event, we will assume for purposes of our decision that the Division did, in fact, receive the notice at some point in July 2010, and issued a notice to Galeano that it intended to suspend his license within several days of that date. We conclude that Galeano's New Jersey license may not be suspended after such a lengthy delay.

The Compact does not specify the time in which a party State must report a conviction to the home State of a licensed driver. However, when a contract does not specify the time in which action must be taken, "the law infers that the contract will be performed within a reasonable time." In re Estate of Yates, 368 N.J. Super. 226, 236 (App. Div. 2004). "What constitutes a 'reasonable time' is usually an implication of fact, and not of law, derivable from the language used by the parties considered in the context of the subject matter and the attendant circumstances, in aid of the apparent intention." Ibid. (quoting Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 28 (1958)).

Reporting of a conviction of the motor vehicle laws to a licensee's home state within a reasonable time is necessary in order to achieve the purposes set out in the Compact, one of which is to "[p]romote compliance" with laws governing the operation of motor vehicles. N.J.S.A. 39:5D-1(b)(1). A driver's conviction of a motor vehicle offense indicates that the driver may pose some danger to other drivers or the public generally. N.J.S.A. 39:5D-1(a)(2). Therefore, the Compact envisions that such a conviction would be reported to the driver's home State within a reasonable time so that the home State may impose its penalties as a result of that conviction within a reasonable time thereafter.

We are convinced that the Compact does not authorize New Jersey to suspend Galeano's license based on his 2003 Florida DUI conviction because Florida did not report the conviction within a reasonable time. We recognize that the delay here is not attributable to the Commission. Nevertheless, the Commission suspended Galeano's license pursuant to the Compact, and its authority to do so is dependent upon Florida's reporting of the out-of-state conviction within a reasonable time, which did not occur here.

Moreover, the suspension of Galeano's license under these circumstances violates his right to fundamental fairness and due process. License suspension proceedings "affect drivers in a serious way" because they "often threaten[]" a driver's ability "to earn a livelihood[.]" In re Arndt, 67 N.J. 432, 436 (1975). Consequently, such proceedings "must meet those incidents of fairness" that underlie the constitutional right to due process. Ibid.

In Arndt, a driver refused to take a breath chemical test after he had been arrested on suspicion of driving under the influence of intoxicating liquor. Id. at 434. On September 2, 1971, the arresting officer notified the Director of the Division of Motor Vehicles (Director) that the driver had refused to take the breath test. Ibid. Acting pursuant to N.J.S.A. 39:3-50.4, the Director issued a notice of proposed suspension on April 27, 1973, almost twenty months after the arrest. Ibid. Following a hearing in the matter, the Director issued a final order of suspension on April 18, 1974. Ibid.

In Arndt, the Court noted that N.J.S.A. 39:4-50.4 requires the Director to suspend a license within ten days after receiving notice from the arresting officer of a driver's refusal to take the breath test. Id. at 435. The Court observed that the statute indicated that the Director must act "within a reasonable time" after receiving notice of a refusal. Id. at 436. The Court held that, because the Director failed to institute suspension proceedings within a reasonable time, the suspension could not stand. Id. at 437.

Although this case involves a suspension imposed pursuant to the Compact rather than N.J.S.A. 39:4-50.4, the principles set forth in Arndt apply. In Arndt, the statute upon which the Director acted required that the license suspension proceedings be commenced within a reasonable time after the report of an arrest. The Compact requires a member State to report convictions in a reasonable time, and contemplates that the home State will act within a reasonable time thereafter. Arndt involved a twenty-month delay; this case involves a delay of almost seven years. If the driver's right to due process and fundamental fairness was violated by the delay in Arndt, surely that also is the case here.

Our decision in Boyd v. Division of Motor Vehicles, 307 N.J. Super. 356 (App. Div.), certif. denied, 154 N.J. 608 (1998), does not compel a different result. There, the Division of Motor Vehicles (Division) suspended a driver's New Jersey license for six months pursuant to the Compact because he had been convicted in New York on December 8, 1993, of driving while intoxicated in that state. Id. at 357-58. The driver's New York driving privileges were revoked for a year. Id. at 358. On March 28, 1996, the Division notified the driver that his New Jersey license would be suspended. Ibid. After conducting a conference in the matter, the Division issued a final order of suspension on July 8, 1996. Id. at 359.

In Boyd, the driver argued that, because of the "inordinate delay" between the beginning of the New York suspension and his receipt of notice of the proposed New Jersey suspension, he lost the opportunity to consent to the New Jersey suspension and have both suspensions run concurrently. Id. at 359. We stated that the suspension could not be set aside because the Division acted promptly when it received notice of the New York suspension and the Division "cannot control the actions of, or delays by, its New York counterparts." Ibid. We noted that the Compact did not establish time limits for the taking of "reciprocal act[s] of suspension[.]" Ibid.

We observed that "it would certainly be desirable [for the Division] to take whatever action can be taken to minimize such delays in the future[.]" Ibid. We added, however, that we did not think "it is reasonable, or even permissible, for us to visit the sins of another state (if there were sins) on the New Jersey Division of Motor Vehicles and thus frustrate the legislative policy embodied in the Interstate Compact." Ibid.

In our view, this case is substantially different from Boyd. The delay in Boyd was about two years and three months. Id. at 347-59. The delay in this case is substantially longer. Furthermore, we do not believe that reversal of the Commission's decision to impose a license suspension in this case after such a lengthy delay would frustrate the legislative policies embodied in the Compact. As we have explained, the Compact anticipates that party States will report convictions within a reasonable time and home States will take appropriate action within a reasonable time thereafter. That did not occur here. Moreover, the lengthy delay between the Florida conviction and the commencement of license suspension proceedings in this State here violates Galeano's right to fundamental fairness and due process, regardless of whether Florida or New Jersey caused the delay.

Reversed.

STATE V. MAURO A-2085-09T3 May 31, 2011

2011-08-05T16:45:00.000-04:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2085-09T3

STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRISTOPHER J. MAURO, Defendant-Appellant.

Submitted April 6, 2011 - Decided May 31, 2011

Before Judges Cuff and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-03-0266.

Yvonne Smith Segars, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel; Ms. Blair and Emily Anderson, Special Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

In this appeal we consider whether there was a basis upon which to conduct a Terry^¹ frisk of defendant for weapons and whether the subsequent warrantless search of defendant's vehicle was justified on the basis of exigent circumstances. We conclude that none of the factors the Pena-Flores^² Court articulated that justify the warrantless search of a vehicle were present here. We therefore reverse the denial of defendant's suppression motion insofar as the search of defendant's vehicle but affirm the Terry frisk and evidence seized as a result thereof.

Based upon information received from Dispatch that there was a suspicious vehicle on Tyler Road in Dennis Township, Trooper Christopher Neuman proceeded to the area. Dispatch described the vehicle as a white pickup truck with a mattress in the rear of the truck bed. The driver of the vehicle, later identified as defendant Christopher Mauro, was reportedly bobbing his head up and down. At 8:23 a.m., Trooper Neuman located the vehicle stopped for a light at the intersection of Tyler Road and State Highway 47 (Highway 47). When the light changed to green, the vehicle turned left onto Highway 47 and proceeded in a southerly direction. Trooper Neuman followed the vehicle. There were two or three vehicles between his vehicle and the pickup truck, but he was able to observe that the vehicle was traveling slower than other vehicles on the road, at one point crossing the fog line and, at another point, crossing the double yellow line as it negotiated a curve. After approximately one-quarter mile, Trooper Neuman activated his overhead lights, drove around the cars in front of him, and directed defendant to pull over. Mauro abruptly stopped the vehicle, nearly causing the trooper to strike its rear. Mauro pulled the vehicle over to the shoulder and stopped.

Trooper Neuman indicated that traffic on Highway 47 on that day was heavy because it was the morning rush hour. The specific area of the stop was around milepost 18.3 just north of the Dennisville Wawa. The shoulder of the roadway was about the width of one car and its length extended throughout most of Dennis Township. He testified that Highway 47 "has a smaller shoulder" and because he had investigated numerous fatal accidents along Highway 47, he therefore took "more caution in stopping vehicles out there and checking on motorists' aids."

As he approached the vehicle, he observed defendant's head leaning down near the center console. This conduct aroused his suspicion and he concluded that something was going on because "[i]t's not usual that somebody reaches down center and dips their head that far down even to get their license and registration." When he commenced speaking with Mauro, the first thing he noticed was that Mauro appeared nervous, his hands shook, he avoided eye contact, and his nose was red. Because the caller had described the driver as bobbing his head up and down and, due to how Mauro was addressing him, he suspected that Mauro was impaired. He also noticed that Mauro's pupils were constricted and that his face was pale. Mauro was unable to produce a driver's license but provided a driver's license number. At that point, Trooper Neuman decided to remove Mauro from the vehicle to conduct a further investigation and also to remove him from the area where he had earlier observed Mauro reaching. He intended to administer field sobriety tests.

Trooper Neuman escorted Mauro to the front of the vehicle. Mauro kept reaching towards his pockets and, as he did, the trooper noticed that there was a bulge protruding from Mauro's pocket. He asked Mauro what was in his pocket and Mauro told him that he had a penknife in his right front pocket. Trooper Neuman then conducted a protective frisk because he was the only trooper out there and also because he intended to conduct field sobriety tests. During the frisk, he recovered the penknife and, for further safety reasons, conducted a full frisk. He felt another hard object in Mauro's left front pocket. Suspecting that the object could also be a weapon, he removed it and noticed that it was "like a pipe or a plastic tube, and stuck to the end of that plastic tube was a druggist fold consistent with the packaging of [a controlled dangerous substance], and there was also white powdery residue . . . within that object."

Trooper Neuman placed Mauro under arrest, handcuffed him, and conducted a search incident to arrest during which he discovered additional druggist folds in Mauro's wallet. He then escorted him to the troop vehicle and secured him in the rear of the vehicle from which defendant could not alight because of child safety locks on the doors.

Once defendant was secured in the troop car, Trooper Neuman returned to Mauro's vehicle and conducted a full search of its interior, uncovering suspected narcotics, paraphernalia and cash. When asked on direct why he searched the vehicle following the arrest, the trooper responded: "Well, he had just used drugs so I went in the vehicle to find out if there were anymore drugs and it's - the roadway there is -" Defense counsel interposed an objection, and once the court overruled the objection, he again attempted to respond to the question why he undertook the search of the vehicle:

Yes. There were multiple factors. It wasn't - the totality of the DWI arrest which I believed he consumed the narcotics. I don't know if I can answer it that way but I believe he consumed narcotics and that he was under the influence with the white powdery substance, the physical observations, and also the -

Defense counsel interrupted with another objection, which the court once again overruled. Trooper Neuman then testified: "I searched the vehicle after Mr. Mauro was arrested. There were multiple factors why I did that. Number one - " For yet a third time, defense counsel objected to the answer, and the following exchange occurred:

THE COURT: So . . . the question initially was why did he search the vehicle, and in five different ways he's started that sentence and we'll try to get through to the answer. Now if he can answer the question why did he search the vehicle -

[ASSISTANT PROSECUTOR]: And I started out trying to do it that way but then the objection is it's too general. So then when I ask it very specifically to help it along, maybe take some concerns counsel has with the narrative, then the objection is it's too leading. It has to be one or the other. I'll just try it this way, Judge. I'm just going to ask it in the general form but the -

BY [THE ASSISTANT PROSECUTOR]:

Q. Can you tell us what facts you considered in determining that you were going to search this motor vehicle on October 15th, 2008?

[DEFENSE COUNSEL]: I just would like to say for the record that is a great question.

THE COURT: Okay, then, [O]fficer, would you answer the question, please?

A. The facts of why I searched the vehicle[?]

Q. Yes, just the facts.

A. Okay. The facts were the use of narcotics, the DWI arrest, the CDS arrest, the fact that the vehicle was not his, and that it would have to be most likely it was going to - if it was going to be left on the roadway it would be a hazard so it had to be removed, and -

Trooper Neuman was then asked whether the vehicle could have been left on the roadway. The trooper responded:

Based upon the traffic that morning and that roadway[,] with my training and experience, I do - he was being arrested so it was going to be a larger amount of time for processing, at least, so I would have towed that vehicle or he would have to have somebody come get it at that - it couldn't stay there.

. . . .

It couldn't stay there. That was right near . . . the Wawa, cars coming in and out, tractor trailers, like just decide they're going to pull over and park on the shoulder[,] which they're not supposed to do[,] and it was also in front - I believe it was in front of a business.

. . . .

The front of a business.

Under cross-examination, Trooper Neuman expressed the opinion that there was "higher crime" in that area of Dennisville than in "some of the other areas in the Woodbine [S]tation area[,]" but did not testify that the area was one of "high crime." He testified that at the time of the stop: (1) there was not a lot of foot traffic in the area; (2) it was daylight; (4) he had no visibility problems; (3) there was heavy vehicular traffic; (5) no one approached the scene after he stopped Mauro's vehicle; (6) there may have been people working in the area but he did not recall whether anyone was watching; (7) no one approached him to advise that he or she was a friend of defendant or to make inquiries about what was going on; (8) there did not appear to him to be any other vehicle following defendant's vehicle; (9) the Woodbine Station Barracks was less than six miles away; and (10) additional troopers arrived either before or during the search of defendant's vehicle, as well as after he completed the search.

The motion judge found that the Terry frisk was justified based upon defendant's demeanor while standing outside of the vehicle and his admission that the bulge protruding from his pocket was a penknife, and given the recovery of the penknife, a further frisk to ensure there were no other weapons on defendant was justified. Turning to the search of the vehicle, the motion judge found that it was justified under the automobile exception to the warrant requirement. She found that the stop had been unexpected and unplanned and that there was probable cause to believe that drugs were in the car based upon the seizure of the suspected narcotics from defendant's pocket and the officer's observation of redness under his nose as defendant exited the vehicle. Finally, the judge concluded that exigent circumstances existed:

In this instance the motor vehicle stop occurred on Route 47 in the morning. It was described as being an area that had at that time of day early, heavy traffic. It was also located, according to the officer's testimony, hear a Wawa store that had truck traffic entering and going about, but also in his description he would indicate that there was not a lot of foot traffic, there were some marshes. There were no other person exiting or approaching the vehicle near the side of the road, however, there was heavy traffic which caused the officer to be concerned for his safety and the safety of Mr. Mauro.

It would also appear that again, that at the time officer - Trooper Neuman was patrolling - conducting the motor vehicle stop alone, and while the defendant had - was secured at the time of the search of the vehicle, this was a company vehicle which again was - remained readily removable and accessible to third parties. Under the automobile exception, the warrantless search is justified because it embodies an assurance that evidence is not otherwise removed or destroyed. In addition, it would appear that the precedent would have established a principle that allows the police to conduct an immediate search at the scene if there's probable cause and to not be delayed by seizing and impounding the vehicle pending review of the probable cause. That's State v. Alston.

The judge also concluded the search of the duffle bag was permissible because defendant failed to produce any documents when Trooper Neuman first approached the vehicle and "[i]nasmuch as this was a company vehicle and the duffle bag appeared to be a personal item, it is not in this instance inconceivable that the defendant's motor vehicle items could have been located within the duffle bag."

On appeal defendant raises the following point for our consideration:

POINT I

BECAUSE NEUMAN LACKED THE REQUISITE REASONABLE SUSPICION THAT MR. MAURO WAS ARMED AND DANGEROUS, THE PAT-DOWN WAS NOT JUSTIFIED UNDER TERRY v. OHIO. MOREOVER, THE WARRANTLESS SEARCH OF THE TRUCK WAS NOT JUSTIFIABLE UNDER THE AUTOMOBILE EXCEPTION. CONSEQUENTLY, THE FRUITS OF THE SEARCHES SHOULD HAVE BEEN SUPPRESSED.

A. THE PAT-DOWN EXCEEDED THE SCOPE OF THE REQUIREMENTS OF TERRY v. OHIO.

B. THE WARRANTLESS AUTOMOBILE SEARCH WAS NOT JUSTIFIABLE UNDER THE AUTOMOBILE EXCEPTION, AND, THUS, THE FRUITS OF THAT UNCONSTITUTIONAL SEARCH SHOULD HAVE BEEN SUPPRESSED.

At the outset, we quickly dispense with defendant's contention that there was no justification for the Terry frisk and the frisk exceeded its permissible scope. We conclude this claim is without sufficient merit to warrant discussion in a written opinion and affirm substantially for the reasons expressed by the motion judge in her oral opinion. R. 2:11-3(e)(2).

Turning to the search of the vehicle, warrantless searches are presumed invalid, and to overcome this presumption, the State bears the burden of establishing that the search was justified under one of the recognized exceptions to the warrant requirement. State v. Patino, 83 N.J. 1, 7 (1980). One such exception is the automobile exception. "Under federal constitutional law, a warrantless search of a motor vehicle pursuant to the automobile exception is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality." Pena-Flores, supra, 198 N.J. at 20 (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed.2d 1031, 1036 (1996)). The rationale underlying this exception is twofold: "(1) the ready mobility of the vehicle and the inherent potential for loss or destruction of evidence before a warrant is obtained; and (2) the decreased expectation of privacy in motor vehicles, which are subject to extensive government regulation." Ibid.

The critical factor under federal jurisdiction is the mobility of the automobile. Our Supreme Court, however, has interpreted art. I, ¶ 7 of our State Constitution as affording greater protection against unreasonable searches and seizures than the federal Constitution affords. State v. Pierce, 136 N.J. 184, 208-09 (1994). Thus, in Pena-Flores, our Court reaffirmed its holding in State v. Cooke, 163 N.J. 657, 667-68 (2000), that the warrantless search of an automobile is "permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant.” Pena-Flores, supra, 198 N.J. at 28.

Here, the first two requirements were satisfied. Although Trooper Neuman was dispatched to the area where the white pickup truck was reportedly observed under suspicious circumstances, there was no plan to necessarily stop the vehicle. However, upon Trooper Neuman's arrival in the area, the manner in which the vehicle was being operated, namely, crossing the fog line and the double yellow lines, and traveling slower than other vehicles on the road, justified the stop of the vehicle for further investigation. Defendant's actions during the stop, together with Trooper Neuman's observation of redness around his nose and constricted pupils, led the officer to believe that defendant had just used drugs. These facts established the requisite probable cause to believe that defendant's vehicle contained drugs. Thus, the critical inquiry here is whether exigent circumstances existed rendering it "impracticable to obtain a warrant." Pena-Flores, supra, 198 N.J. at 28.

The determination of exigent circumstances is fact- sensitive and resolved on a case-by-case basis with consideration of the totality of the circumstances. Ibid. Central to the analysis is the officer's safety and the preservation of evidence. Id. at 29. The motion judge found that exigent circumstances existed based upon the fact that Trooper Neuman was conducting the motor vehicle stop alone and defendant's vehicle was a company car that "remained readily removable and accessible to third parries." The State also argued that the exigency was created by the location of the vehicle along the side of a busy two-lane highway.

These factors fall short of establishing the type of exigency that justified the warrantless search of defendant's vehicle. First, the stop occurred in broad daylight during morning rush hour, a time when courts are open for business. Second, although Trooper Neuman was alone when the stop was initiated, the Woodbine Station was less than six miles away and backup was readily available. In response to the question whether backup arrived after defendant was arrested and secured in the back of the troop car but before he searched the truck, Trooper Neuman stated: "As much as I recall, yes, that's - it was right after, you know, it might have been either during the search that the other trooper came out there" and "I know that eventually two other troopers came but that was after he was - everything was already done." In total, in addition to Trooper Neuman, four other troopers arrived at the scene.

There were other factors that militated against a finding of exigency. Nothing in the record indicates that the traveled portion of the roadway was blocked because of events unfolding on the shoulder. Trooper Neuman acknowledged that defendant's vehicle could have been towed. Nor was the location of the stop in a high crime area. Trooper Neuman's description of the area as having "higher crime" than other locations in the Woodbine Station area is not the equivalent of describing the location as a "high crime" area. Further, there were no confederates who knew of the location of the vehicle and who were thus positioned to remove its contents before its removal. The fact that the vehicle was a company car did not make it more readily subject to removal by third persons. There was no indication that anyone from the company knew that the vehicle had been stopped at the time Trooper Neuman determined that he would search the vehicle. See, e.g., State v. Ireland, 375 N.J. Super. 100, 119 (App. Div. 2005) (noting that one of the exigent circumstances was the fact that the defendant's passenger, who was at liberty, was aware that the vehicle had been stopped and that the defendant had been arrested for driving while under the influence). Finally, defendant was handcuffed and secured in the troop vehicle, which was equipped with child safety locks. Consequently, defendant had no opportunity to gain access to any of the contents within the vehicle.

In short, the State failed to prove that Trooper Neuman did not have time to call for a warrant without compromising his safety and the preservation of evidence. He could have called for a warrant while awaiting the arrival of backup and defendant was locked in the back of his patrol car. Alternatively, he could have sought the warrant after the backup officers arrived. The Court, in Pena-Flores, addressed a similar situation in the companion appeal of the defendant Chares Fuller, who was pulled over for a traffic violation. The Court determined that the officer's search for evidence of the ownership of the vehicle extended into impermissible areas:

Here, Clemens pulled Fuller over for a traffic violation in broad daylight on a city street at 1:15 in the afternoon. Fuller was subsequently arrested and secured inside the cruiser, and thus had no opportunity to gain access to the vehicle or anything it contained. There is nothing in the record to suggest that Fuller had cohorts who might have come on the scene. Clemens was, at all times, assisted by one to three other troopers. The vehicle could have been impounded or one officer could have remained with it while a warrant was sought by telephone or in person. There was simply no urgent, immediate need for the officers to conduct a full search of the automobile.

[Pena-Flores, supra, 198 N.J. at 32 (citing State v. Dunlap, 185 N.J. 543, 550 (2006)).]

We note that the record here discloses that defendant was unable to present a driver's license. Ordinarily, under such circumstances, a police officer may search the interior of a vehicle in those locations where evidence of vehicle ownership and driving credentials may be found. Id. at 31. However, there is nothing in the record to indicate that defendant was unable to present documents related to the vehicle. Ibid. Thus, the search of the interior, even if to confirm defendant's representation that he did not have a driver's license, should have been confined to areas where a driver's license would be likely located. Ibid.Such locations would not ordinarily include the cigarette box from which drug paraphernalia was seized, the pill container from which six packages of suspected heroin were seized, or the taped box containing the $23,000 in cash. We therefore conclude that the absence of exigent circumstances "vitiat[ed] invocation of the automobile exception." Id. at 32. Consequently, the drug paraphernalia, suspected heroin and cash seized from the vehicle should have been suppressed.

We reverse that part of the motion judge's decision denying defendant's motion to suppress the items seized from the vehicle but otherwise affirm the denial of the motion in all other respects.

Affirmed in part, reversed in part.

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968).

2 State v. Pena-Flores, 198 N.J. 6 (2009).

STATE OF NEW JERSEY v. D.K. A-1818-09T2 June 1, 2011

2011-08-05T16:34:00.000-04:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1818-09T2

STATE OF NEW JERSEY, Plaintiff-Respondent, v. D.K., Defendant-Appellant.

Submitted March 23, 2011 - Decided June 1, 2011

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1272.

Thomas J. Buck, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal of defendant's conviction for the sexual abuse of his stepson, B.D., we reverse and remand for a new trial due to the judge's admission of photographs of defendant's stepdaughter, C.D. The State was permitted to use these so-called "distasteful" photographs to challenge the credibility of defendant's testimony that he had a good parental relationship with his stepdaughter and never sexually abused her. Because the judge erred in admitting the photographs due to their slim nexus to the charges in question and their potential for prejudice -- an error exacerbated by the lack of cautionary instructions for the jury -- we remand for a new trial.

In 2005, defendant was indicted and charged in a multi-count indictment with the sexual abuse of A.D. and B.D. As to the former, defendant was charged with: second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(3) (count one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(4) (count two); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and third-degree official misconduct, N.J.S.A.2C:30-2 (count four). And, as to B.D., defendant's stepson, he was charged with: first-degree aggravated sexual assault,N.J.S.A. 2C:14-2a (count five); second-degree sexual assault, N.J.S.A. 2C:14-2c (count six); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count seven); first-degree endangering the welfare of a child,N.J.S.A. 2C:24-4b(3) (count eight); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(4) (count nine).

Counts seven, eight, and nine were dismissed prior to trial. In July 2006, the remaining six counts, involving both alleged victims, were the subject of a single trial. The jury returned a guilty verdict on all the charges pertaining to A.D. (counts one through four), but was unable to reach a verdict on the remainder. In December 2006, defendant was retried and found guilty on the charges pertaining to B.D. (counts five and six). Defendant was sentenced to an aggregate five-year prison term on counts one through four, and a consecutive aggregate twelve-year prison term, with a six-year period of parole ineligibility, on counts five and six.

We reversed, holding that the charges should have been severed because the alleged offenses involving B.D. and those involving A.D. were different in many respects and also were alleged to have occurred eight years apart. For these and other reasons, we remanded for new, separate trials. State v. D.K., Nos. A-3688-06 and A-5182-06 (App. Div. Aug. 15, 2008), certif. denied, 196 N.J. 601 (2008).

Defendant was retried on the charges pertaining to B.D. in June 2009. The jury found him guilty of first-degree aggravated sexual assault (count five) and second-degree sexual assault (count six); on the former, defendant was sentenced to a twelve-year prison term with a six-year period of parole ineligibility, and on the latter, the judge imposed a concurrent seven-year prison term with a three-year period of parole ineligibility. Defendant later pled guilty to counts one and four, offenses relating to A.D., and was sentenced to a concurrent, aggregate six-year prison term.

Defendant appealed, presenting the following arguments with respect to his trial on the charges pertaining to B.D. and the sentence imposed as a result:

I. THE ADMISSION OF INAPPROPRIATE PHOTO-GRAPHS DEFENDANT TOOK OF HIS DAUGHTER, COUP-LED WITH THE COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION ON THIS EVIDENCE, VIOLATED N.J.R.E.404(b) AND DEPRIVED DEFEN-DANT OF HIS RIGHT TO A FAIR TRIAL.

II. THE COURT'S JURY INSTRUCTION REGARDING B.D.'S ALLEGATION THAT DEFENDANT HAD SEX-UALLY ABUSED HIS DAUGHTER UNDERMINED THE DEFENSE BY FAILING TO EXPLAIN HOW B.D.'S ALLEGATION WAS RELEVANT TO THE DEFENSE THEORY OF THE CASE (Not Raised Below).

III. THE PROSECUTOR'S IMPROPER INTRODUCTION OF CHARACTER EVIDENCE VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL.

IV. THE TRIAL COURT'S DECISION TO BAR THE DEFENSE FROM IMPEACHING THE VICTIM WITH HIS COURT MARTIAL WAS ERROR REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.

V. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A TWELVE-YEAR TERM ON HIS FIRST-DEGREE AGGRAVATED SEXUAL AS-SAULT CONVICTION BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

We find insufficient merit in Points III and IV^¹ to warrant discussion in a written opinion. R. 2:11-3(e)(2). Because we conclude that the admission of the photographs referred to in Point I requires reversal, we need not address the issues raised in Points II and V.

III

In Point I, defendant argues he was deprived of a fair trial on the charges that he sexually abused his stepson, B.D., because of the State's use of photographs he took of his stepdaughter, C.D. In explaining why we agree with defendant's argument that he is entitled to a new trial, we are required to explain at some length the relevant testimony and consider the judge's earlier rulings, by which he barred the use of the photographs, and the circumstances that led to his ultimate determination to permit their use.

The evidence reveals that defendant married B.D.'s mother and lived with B.D. from the time he was eleven until he turned eighteen years old. Also living in the home were B.D.'s older sister, C.D., and younger brother, S.D.

B.D. testified about an event that occurred in or about 1994 when he was fourteen years old. He explained how, in attempting to show B.D. how to put on a condom -- because his mother was too embarrassed to explain -- defendant masturbated B.D., performed oral sex on him, and then compelled B.D. to reciprocate. B.D. testified to additional similar circumstances on later occasions. He also testified that defendant took nude photographs of him.

According to B.D., the sexual abuse stopped in 1997, when he was seventeen. He continued to live in the home with defendant, his mother, and his siblings until, after a disagreement approximately one year later, defendant told him to move out. B.D. enlisted in the military but continued to have contact with defendant. B.D. also moved back into the home with defendant and his mother for several months following his discharge from the military.

In light of B.D.'s delay in reporting the allegations of abuse to law enforcement authorities until June 2005, the assistant prosecutor elicited testimony from B.D. as to when he first confided in others as to the alleged sexual abuse. B.D. testified that in 1999 he told his late sister, C.D.,^² and in either 1999 or 2000, he told his girlfriend about the abuse.

When cross-examined about the veracity of the charges, B.D. acknowledged he never told the police investigator in 2005 that he had confided in C.D. about the alleged sexual abuse. Defense counsel also demonstrated through cross-examination that B.D. did not report his allegations to law enforcement authorities for many years despite the fact that his younger brother, S.D., remained in defendant's home and despite the fact that a young nephew -- the late C.D.'s son -- also resided there periodically starting in 2001. Instead, it was not until 2005 that B.D. advised police about the abuse.

In further challenging B.D.'s credibility, defense counsel asked B.D. whether it was true that "the first thing you told [the police investigator] was not that you were molested by [defendant], but that your sister was molested by [defendant]"; B.D. agreed that was true. When B.D. asserted that he complained to the investigator about "both of us" -- meaning he and C.D. -- the following cross-examination occurred:

Q. . . . The interview [with the police investigator] starts out [with your allegation that] it's your sister that's molested by [defendant], correct?

A. I believe so.

Q. And then the interview changes, it goes from your sister being molested to -- yeah, I was molested, too, correct?

A. Well, that's not how it was put, but yes.

Q. Well, if I showed you your statement and told you that the first 10 pages of your statement you don't say anything about you being molested, that it's your sister being molested, would that surprise you?

A. No, it wouldn't.

Q. So it's safe to say the first thing when you go to the Prosecutor's Office, when you speak with [the investigator], you tell them it's my sister that was molested, correct?

A. Correct.

Q. And then it evolves into I'm the one who was molested?

A. Correct.

Q. So at first at least when you came to the Prosecutor's Office the information that you were bringing them was about your sister, correct?

A. Yes.

Q. And that's what you told them, my sister was molested by [defendant]?

A. Correct.

Q. [By] [t]hat time your sister was dead, correct?

A. Yes, she was.

Q. And [the] Prosecutor's Office couldn't do anything about that, correct?

A. Correct.

Q. So that's when you went into by the way, I was molested, too?

A. But that's not the reason why. The reason is it's the truth.

In response, defendant testified at trial, explaining, among other things, that his relationship with B.D. was difficult but insisting there was no abuse, sexual or otherwise. Defendant's wife also testified that defendant had a conflicted relationship with B.D., generated by B.D.'s alcohol and marijuana use, but denied B.D.'s claims, including the occurrence of the conversation about condom usage that B.D. said preceded the first alleged act of sexual abuse. S.D. testified that he never witnessed any form of abuse by defendant against B.D. and that B.D. never mentioned he had been sexually abused. And C.D.'s husband testified that his son resided at times with defendant after C.D.'s death and neither he nor his son had any concerns.

The record reveals that from the outset the State had a keen interest in utilizing the photographs taken by defendant of both A.D. and C.D. Because the use of photographs of A.D. during the first trial of the offenses relating to B.D. led to our reversal of defendant's prior conviction, at earlier phases of the second trial the trial judge correctly rebuffed the State's efforts to use those photographs. Barred from using the photographs of A.D., the State attempted to utilize the photographs of C.D.

In one instance during B.D.'s testimony, the judge heard lengthy argument out of the presence of the jury, during which the prosecutor urged the right to use the photographs of C.D. to rebut the defense's attack on the credibility of B.D.'s testimony that defendant took nude photographs of him. And, at another stage of B.D.'s examination, the State urged the use of the photographs of C.D. as a response to defense counsel's suggestion, through cross-examination, that B.D.'s statements to the police investigator regarding defendant's abuse of C.D. was false. The judge examined the photographs of C.D. and made the following observations:

THE COURT: . . . I have looked at those five or six photographs and they fall far short of any clear and convincing proof that there was a sexual, you know, assault on [C.D.].

[THE ASSISTANT PROSECUTOR]: Well, they cer-tainly show that he was engaging in child pornography[^³] with her, Judge, when some of them are topless.

THE COURT: I don't agree with you.

[THE ASSISTANT PROSECUTOR]: These are very similar to the pictures that he took of [A.D.].

THE COURT: That is not true.

[THE ASSISTANT PROSECUTOR]: He took photos like that of [A.D.].

THE COURT: I've made a ruling [as to] why [the photographs of A.D.] fell under the definition of pornographic and these pictures [of C.D.] do not fall into that category. There are two that are arguable -- okay? -- but they surely don't demon-strate a sexual assault, and others are actually inconsistent with what you offer them for and those are the ones where she is smiling and, you know, in the arms of her stepfather.

. . . .

. . . And you can, if you wish to, draw the inference that she may have been nude when . . . those two photographs were taken, but that's not proven by clear and convinc-ing evidence, and we don't know much about the photographs, frankly, unless someone who was present is willing to testify about them, so there's a great difference. And the most important thing is that we're talk-ing about another matter. We're not talking about this matter. So in order for those photographs to get admitted into this matter they must prove some relevant fact by clear and convincing evidence and their probative value must outweigh any prejudicial impact and you really haven't made that showing, so I'm not going to allow the photographs to be admitted into evidence. And a few of those photographs, frankly, are inconsistent with your position entirely because they show a smiling [C.D.] with her stepfather. So, you know, the photos at the very best will cause speculation, at the very worst they may be prejudicial, but I think we need to stick with this case.[^⁴]

Following this, the assistant prosecutor sought to recall B.D.'s girlfriend, so she might be asked to further amplify the reasons for her fear of defendant.^⁵ It was represented that, if recalled, B.D.'s girlfriend would testify that on one occasion she saw defendant inappropriately touch C.D.'s leg. The judge prohibited testimony about this alleged inappropriate touching and again reiterated the photographs of C.D. could not be used because "we're not here to address whether [C.D.] was abused, but surely there's no clear and convincing evidence of that even if it were true and, therefore, what you're really offering is not very probative at all in terms of the real question here before this [c]ourt . . . ."

It was not until defendant testified that the issue again arose. Toward the conclusion of his direct examination, defendant asserted he had a good parental relationship with C.D. and never touched her "in a sexual way." When direct examination was concluded a few moments later, the assistant prosecutor sought the right to use the photographs of C.D. "to impeach [defendant's] credibility that he had this great relationship with [C.D.], that it was father/daughter like and that . . . there was never a sexual relationship with [C.D.]."

Defense counsel argued the so-called topless photographs^⁶ could not reasonably lead to an inference that defendant sexually abused C.D., but the judge concluded that by testifying he did not sexually abuse C.D., defendant opened the door to the use of the photographs to impeach his credibility:

THE COURT: . . . I believe that the State can argue that those photographs can lead to the inference that there was some type of a sexual relationship or dimension to that relationship based upon what apparently are nude photos. . . .

. . . .

The bottom line is [defense counsel] injected on two separate occasions after knowing [from earlier rulings] that I was . . . inclined not to go there and now I think that there is an issue of [defen-dant's] credibility, so I'm going to allow the photographs.

. . . .

I didn't think they were admissible [on the earlier occasion]. Now I think they're admissible for the limited purpose of addressing [defendant's] credibility.

The prosecutor then cross-examined defendant regarding the photographs. He acknowledged he took the photographs and testified his wife helped pose C.D. Defendant's wife was recalled to corroborate this; she added that C.D. was not nude at the time and was between eighteen and nineteen years old when the photographs were taken.

In this appeal, defendant argues that the use of the C.D. photographs violated N.J.R.E. 404(b) and the Cofield test.^⁷The State concedes N.J.R.E. 404(b) has no application here, acknowledging the photographs "may reflect distasteful . . . [or] unseemly behavior" and may reflect "activity that most fathers (or even step-fathers) would not pursue, but the photographs do not reflect criminally or civilly wrong behavior." The State argues instead that the photographs were rendered admissible by N.J.R.E.405(b), which permits "evidence of specific instances of conduct" when "character or a trait of character of a person is an essential element of a charge, claim, or defense." The State asserts that defendant laid the groundwork for the use of the photographs pursuant to N.J.R.E. 405(b). In support of this new contention, the State argues that defendant attempted to demonstrate he was a good parent in responding to the claim that he sexually abused B.D. and that, in responding to evidence in support of this alleged "good parent trait," the State was entitled to show the contrary. Stated another way, although the State never urged N.J.R.E. 405(b) at trial as a basis for the admission of the photographs, the State now argues that photographs of C.D. posed in questionable taste -- concededly insufficient to support admission pursuant to N.J.R.E. 404(b) -- were admissible to defeat defendant's contention that he was a good parent.

Any way the argument may be restated demonstrates how attenuated these photographs were from the proofs relevant to the charged offenses. We agree with the State that N.J.R.E. 404(b) did not authorize admission of the photographs, and we reject the State's argument that N.J.R.E. 405(b) may support their admission because the so-called "good parent trait" is not an "essential element" of the charges the jury was required to decide. See State v. Baluch, 341 N.J. Super. 141, 194 (App. Div.),certif. denied, 170 N.J. 89 (2001); State v. Steensen, 35 N.J. Super. 103, 106-07 (App. Div. 1955).

The judge's view of the matter was closer to the mark. He repeatedly, and correctly, rejected admission of the photographs for any reason and only ultimately authorized their use to impeach defendant's credibility when defendant testified he had never sexually abused C.D. The judge was not mistaken when he determined that defendant opened the door to an attack on his credibility on that point but we conclude that the use of the photographs remained improper because their limited probative value on that point was greatly overridden by the photograph's potential for prejudice.

The judge later explained his application of N.J.R.E. 403 in determining the admissibility of the photographs in the following way:

I'm satisfied that having raised on two separate occasions the relationship between [C.D.] and her stepfather, the defendant, and trying to impeach [B.D.'s] credibility through that approach that the photographs have some probative value as to the rela-tionship and, frankly, I don't find them to be all that prejudicial in light of the cir-cumstances under which they're offered and the testimony that relates to them. . . .

We understand from this explanation that the judge permitted the use of this evidence for another reason. That is, in permitting the use of this evidence, the judge appears to have relied on the fact that defendant had challenged B.D.'s credibility by suggesting B.D. falsified his claim to police that defendant sexually abused C.D. and, therefore, could be understood as having also falsified his charge that defendant sexually abused him. By revealing the photographs to the jury, the State could then argue -- as we understand the judge's decision -- that B.D. was truthful because an inference could be drawn from the photographs that defendant sexually abused C.D. and, therefore, B.D. was truthful when he told that to the police investigator. And, if the jury drew that conclusion, then it might also conclude that B.D. was truthful when he later asserted that defendant sexually abused him.

This explanation suggests a convoluted and very slim nexus between the photographs and what the State was attempting to prove. Although trial judges have considerable discretion when engaging in this balancing process, State v. Nelson, 173 N.J. 417, 470 (2002), we are not convinced that the application of N.J.R.E. 403 properly leads to the conclusion that the limited relevance of this evidence substantially outweighed the risk of undue prejudice. This volatile evidence had the potential of not only prejudicing defendant but -- because it bore little relevance to the question of whether defendant sexually abused B.D. -- this evidence had the capacity to "mislead[] the jury." Ibid. See, e.g., State v. Marshall, 123 N.J. 1, 105 (1991),cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993); State v. Coruzzi,189 N.J. Super. 273, 304-08 (App. Div.),certif. denied, 94 N.J. 531 (1983).

This potential for prejudice was exponentially increased when the judge failed to instruct the jury about the questionable evidence's use. Without guidance, the jury was free to speculate about the photographs and defendant's relationship to C.D. -- a relationship having no particular relevance to the charged offenses -- when the issues for the jury concerned certain alleged interactions between defendant and B.D.

The judge's ultimate determination to permit the use of the photographs also conflicted with his earlier sound rulings. When the State previously attempted to gain admission of the photographs, the judge recognized their slim probative value was substantially outweighed by what the Court in State v. G.S., 145 N.J. 460, 468 (1996), referred to as the evidence's "prepotency of prejudice." Even though defendant did indeed open the door to a challenge to his credibility regarding his relationship with C.D. and even though defendant's credibility was a material issue, the nexus between the photographs and defendant's credibility that the State sought to demonstrate through their admission -- that defendant falsely asserted he never sexually abused C.D. or falsely asserted he had a sound parental relationship with C.D. -- is so thinly suggested by this evidence that the photographs' prejudicial effect greatly outweighed their use. In short, by admitting the photographs, the judge allowed the jury to speculate and to draw a conclusion that a man who takes photographs of scantily-clad, young adult females likely sexually abuses the subjects of his photographs. We conclude that a proper application of N.J.R.E. 403 required the exclusion of the photographs.

Even if we might assume the judge did not abuse his discretion in admitting the photographs, the nature of that evidence compelled the need for clear and specific jury instructions. Although it is true that defendant did not seek instructions about the photographs,^⁸ the potential for improper jury speculation as to their significance was far too great to leave it to the jurors to sort out on their own. The Supreme Court has held that in such circumstances, where the trial judge has concluded that application of the evidence rules permits admission of other-crimes evidence, the judge "must specifically instruct the jury about that evidence's limited relevance." G.S., supra, 145 N.J. at 469. Here, as the State has rightfully acknowledged, the photographs were not evidence of other crimes, but as we must also conclude, those photographs carried the same potential prejudice carried by other-crimes evidence without the same level of relevancy -- all the more reason the judge was required to instruct the jury about what it could and could not do with that evidence.

To summarize, we conclude that the photographs of C.D. had such an attenuated nexus to the charged offenses that an appropriate comparison of their relevance with their potential for prejudice and for misleading the jury warranted exclusion of the photographs. That error was further exacerbated by the judge's failure to instruct the jury as to the photographs' limited use, leaving the jury to speculate about their weight and application. Considering that the evidence regarding the charged offenses consisted mainly of the testimony of B.D. and defendant, the potentially incendiary nature of the photographs could have meant all the difference in this matter. We conclude that the State's use of the photographs deprived defendant of a fair trial.

Reversed and remanded for a new trial.

1Defendant failed to demonstrate that B.D.'s discharge from the military was based on conduct falling within the parameters of N.J.R.E. 609. We rejected the same argument in defendant's first appeal.

2C.D. was murdered in 2001.

3The State acknowledges in its appeal brief that C.D. was over the age of eighteen when the photographs were taken.

4Although not included in the appendices, we have obtained copies of the photographs from counsel and find no cause to disagree or contradict the trial judge's accurate assessment of what they depict.

5For fresh complaint purposes, B.D.'s girlfriend was permitted to testify about B.D.'s statements to her on an earlier occasion that he was sexually abused by defendant. To explain why she did not report what B.D. had told her, B.D.'s girlfriend explained she was afraid of defendant because "he was controlling, he was a cop and [she] didn't think anybody would believe [her]." The assistant prosecutor claimed later at trial that the scope of this answer was limited because of concerns that the witness might open the door to an impermissible area, i.e., what the witness claimed to know about defendant's alleged abuse of C.D.

6Other conflicting evidence was later adduced as to whether C.D. was topless when she was photographed at that time. Even if it was assumed C.D. was topless during the photo session, the photographs do not depict her topless.

7State v. Cofield, 127 N.J. 328 (1992).

8Although defendant did not make a specific request or object when no instruction was given, we conclude that the absence of clear and specific instructions as to the limited use that the jury could make of the photographs was capable of producing an unjust result. R. 2:10-2; see also State v. Burns, 192 N.J. 312, 341 (2007). It has been well established that errors in a jury charge in a criminal case on material issues are viewed as "poor candidates for rehabilitation under the harmless error philosophy," State v. Vick, 117 N.J. 288, 289 (1989), and are presumed to constitute reversible error,State v. Jordan, 147 N.J. 409, 422 (1997).

IN THE MATTER OF THE APPLICATION OF M.G. FOR THE EXPUNGEMENT OF RECORDS A-1657-10T3 June 1, 2011

2011-08-05T16:26:00.000-04:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1657-10T3

IN THE MATTER OF THE APPLICATION

OF M.G. FOR THE EXPUNGEMENT OF

RECORDS.

________________________________

Argued: May 11, 2011 – Decided: June 1, 2011

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. M-306-10.

Allan Marain argued the cause for appellant M.G.

Brian D. Gillet argued the cause for respondent State of New Jersey (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Gillet, Assistant Prosecutor, of counsel; Jason Seidman, on the brief).

PER CURIAM

Defendant appeals from an October 21, 2010 order of the Chancery Division denying his application for expungement of records pursuant to N.J.S.A. 2C:52-l to -32. We affirm.

Defendant was charged in fourteen counts of a sixteen count indictment, with other individuals, of third-degree conspiracy, six counts of third-degree burglary, five counts of third-degree theft by unlawful taking, fourth-degree theft by unlawful taking, and third-degree fencing/dealing in stolen property, for conduct occurring at the Rutgers University Livingston College campus between November 15, 1991 and February 11, 1992, when he was nineteen years old. On February 4, l993, defendant entered negotiated guilty pleas to four counts of third-degree burglary, N.J.S.A. 2C:18-2, occurring on November l5, December 5, 8, and 12, 1991; two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, occurring on December 8 and l2, 199l; and one count of fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3, occurring on December 5, 1991. Defendant was sentenced on all charges on April 5, 1993. He received a five-year probationary sentence and 200 hours of community service, and was directed to make restitution in the amount of $1,664.23. The other counts of the indictment pertaining to defendant were dismissed. Other than these charges, defendant had an unblemished record.

Defendant apparently completed his probationary sentence successfully and was neither arrested nor convicted of any offense or crime since that time. On June 9, 2010, defendant filed a petition to expunge his arrest and conviction for burglary and theft. Judge Ciuffani denied the petition, relying on In re Ross, 400 N.J. Super. 117, 122 (App. Div. 2008), and concluding the applicable statute, N.J.S.A. 2C:52-2(a), "preclude[s] expungement of a crime committed on a subsequent occasion regardless of whether the conviction date was the same as the conviction date for a crime committed on an earlier occasion." This appeal ensued.

On appeal, defendant urges that the "one-night spree" doctrine of In re Patrick Fontana, 146 N.J. Super. 264, 266-67 (App. Div. l976), survives Ross. In Fontana, we held that numerous crimes committed by the defendant over a one-week period contained in six indictments but pled to on the same day constituted "a conviction" for purposes of the expungement statute then in effect.^¹ Ibid. We permitted the expungement of the multiple offenses under the circumstances of the case because we viewed the criminal conduct at issue "as akin to a 'one night spree' which has generally received special consideration in sentencing[.]" Id. at 267 (citation omitted).

In support, defendant cites to dicta in State v. A.N.J., 98 N.J. 421, 427 n.3 (1984), in which the Court stated "[w]e need not cast doubt upon the view that a 'one-night spree' could still constitute a one-time offense[,]" citing Fontana, supra, 146 N.J. Super. at 267. Defendant thus argues he qualifies for expungement and urges us to assume original jurisdiction, R. 2:10-5. He emphasizes that his conduct was all part of the same indictment, occurred over a short span of twenty-seven days, involved a common theme of burglary and theft offenses, and was directed at the same victim - Rutgers University.

We are not persuaded by defendant's arguments. As noted in Ross, supra, 400 N.J. Super. at 120-22, the expungement statute was amended in 1979, subsequent to Fontana, to provide, in pertinent part:

Indictable Offenses. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime . . . [the person] may, after the expiration of a period of l0 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, . . . [apply for expungement of] such conviction and all records and information pertaining thereto . . . .

[N.J.S.A. 2C:52-2(a) (emphasis added).]

We reasoned that "when the Legislature enacted N.J.S.A. 2C:52-2, it deliberately chose to alter the more expansive view of expungement that had existed under N.J.S.A. 2A:164-28 and was exemplified by our decision in Fontana," and concluded that "when the Legislature chose the language 'subsequent crime' it intended to preclude expungement of a conviction where an individual commits a second crime even if the two crimes result in a single sentencing and conviction date." Ross, supra, 400N.J. Super. at 123-24. We discern no basis to hold otherwise. Accordingly, we are satisfied Judge Ciuffani correctly appliedN.J.S.A. 2C:52-2(a) and determined defendant was not entitled to expungement relief because he pled guilty to at least two indictable offenses even though the crimes resulted in a single sentencing and conviction date.

Even if we were to accept for present purposes the continued viability of Fontana based on the dicta in A.N.J., supra, 98 N.J.at 427 n.3, the record does not support the application of the "single spree" doctrine to defendant's conduct. Defendant pled guilty to seven indictable crimes occurring over a span of twenty-seven days. Although the crimes were similar as they involved theft-related offenses, they occurred on four separate dates - November l5, December 5, December 8, and December 12, 199l - and targeted three separate locations on the Livingston College campus - Tillet Hall, Kilmer Library, and the Student Center. Moreover, there is no evidence the items of movable property stolen by defendant were related, such as component parts of a computer.

Affirmed.

1 N.J.S.A. 2A:164-28 was the applicable expungement statute prior to the enactment of Title 2C of the penal code in l979 and enactment of the expungement statutes for indictable offenses, N.J.S.A. 2C:52-2, disorderly persons offenses and petty disorderly persons offenses, N.J.S.A. 2C:52-3, and ordinances, N.J.S.A. 2C:52-4.

N.J.S.A. 2A:164-28 provided, in pertinent part:

In all cases wherein a criminal conviction has been entered against any person whereon sentence was suspended, or a fine imposed of not more than $1,000 and no subsequent conviction has been entered against such person, it shall be lawful after the lapse of ten years from the date of such conviction for the person so convicted to present a duly verified petition to the Court, wherein such conviction was entered, setting forth all the facts in the matter and praying for the relief provided in this section.

[(Emphasis added).]

STATE OF NEW JERSEY VS. HANDY A-0401-09T4 08-04-11

2011-08-05T12:40:00.001-04:00

08-04-11 STATE OF NEW JERSEY VS. ROBERT HANDY A-0401-09T4

After a bench trial, defendant was found not guilty of murder and other related offenses by reason of insanity. Defendant had preferred and unsuccessfully sought to have a jury trial to seek acquittal on a theory of self-defense. In rejecting defendant's motion to be tried first on his self- defense claim, and instead proceeding solely with the insanity issue, the trial court was guided by State v. Khan, 175 N.J. Super. 72 (App. Div. 1980), which prescribes a bifurcated procedure that gives primacy to the adjudication of an insanity defense.

We decline to adhere to the bifurcation sequence set forth in Khan because that opinion conflicts with several aspects of our State's Criminal Code; relied upon District of Columbia case law that is no longer valid; and is contrary to the approach of other states that have addressed the question.

We instead hold that a defendant who wishes to present a substantive defense based upon at least some evidence, or who otherwise wishes to put the State to its burden of proving the elements of the offense beyond a reasonable doubt, should not be required to first submit to a trial restricted to the issue of insanity.

Consequently, we remand for a bifurcated trial in which the insanity defense, if necessary, is tried in a second phase before the same jury, with appropriate cautionary instructions.

State v. Cabbell/State v. Calhoun (A-89/90-09; 065129) 7-26-11

2011-07-29T16:33:00.002-04:00

7-26-11 State v. Timyan Cabbell/State v. John Calhoun (A-89/90-09; 065129)

Both defendants were denied their federal and state constitutional rights to confront Karine Martin, a key State’s witness, before the jury. For that reason, Martin’s out-of-court statement to the police incriminating defendants should not have been read to the jury and the admission of that statement was not harmless error.

State v. Hess (A-113-09; 066015) 7-21-11

2011-07-29T16:00:00.000-04:00

7-21-11 State v. Marie Hess (A-113-09; 066015)

Defendant was denied her constitutional right to the effective assistance of counsel because her attorney failed to present and argue mitigating evidence at sentencing. Also, the plea agreement provisions that restrict the right of counsel to argue for a lesser sentence are void.

STATE OF NEW JERSEY VS. WILSON A-3826-09T3 07-26-11

2011-07-29T15:20:00.000-04:00

07-26-11 STATE OF NEW JERSEY VS. JOHN RAY WILSON A-3826-09T3

The principal issue in this is case is whether the personal use defense for manufacturing a controlled dangerous substance, N.J.S.A. 2C:35-2, applies to the growing of marijuana under N.J.S.A. 2C:35-5. After reviewing the relevant statutory language, as well as the purpose for the personal use exemption, we affirm the trial court's determination that there is no personal use exemption for growing marijuana.

STATE OF NEW JERSEY V. WILLIAMSON A-1323-10T3 June 24, 2011

2011-07-26T17:24:00.000-04:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1323-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

THOMAS D. WILLIAMSON,

Defendant-Appellant.

Submitted June 7, 2011 – Decided June 24, 2011

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Municipal

Appeal No. 40-2010.

Thomas D. Williamson, appellant pro se.

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Brian D. Gillet,

Assistant Prosecutor, of counsel; Jason

Seidman, on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Thomas D. Williamson appeals from an October 12, 2010 order that found him not guilty of improper passing, N.J.S.A. 39:4-85, but guilty of careless driving, N.J.S.A. 39:4-97. For the reasons that follow, we reverse.

The facts of this case are not in dispute. On the morning of February 11, 2010, defendant was driving in Spotswood, New Jersey. Although the weather was clear, the road remained "covered with snow and ice" from a storm the previous day. Defendant approached a slow-moving vehicle in a passing zone, signaled, and passed it on the left.

The maneuver was observed by Officer Michael Gardini of the Spotswood Police Department. Gardini "activated [his] overhead lights" and pulled defendant over. Defendant was issued two summonses: one for improper passing, and another for having an obstructed window.^¹

During defendant's trial in the Spotswood Municipal Court on March 30, 2010, Gardini acknowledged that he had observed defendant's vehicle pass another vehicle in a forty-mile-per-hour passing zone. He further stated that defendant "could have been" traveling "about 20 miles per hour." Nevertheless, Gardini maintained that "[t]he road conditions were unsafe to pass." On cross-examination, Gardini admitted that he had not measured the speed of either car and did not observe any "lack of control" in defendant's driving, but he issued the ticket because the pass was not "a safe maneuver."

After the State rested, defendant testified as follows:

There was a car on Main Street that I came up to. It was being driven . . . at about eight to ten miles an hour. There was snow and ice on the road. I . . . signaled to turn and pass because there were no cars at all coming [in] the other direction. The speed limit is 40 miles an hour and it is clearly marked as a passing zone because I go on that road twice a day every day, [and I am] very familiar with that road.

I had a long approach. I pulled out gently in front of the car that was going at about eight, ten miles an hour, passed the car, pulled in. The car had absolutely no fish-tail. There was nothing. It was already past sunrise. There was ice . . . on the road, but there was also water on the road. Passed the car, pulled in, did not exceed the speed limit of about 20 miles an hour. When I pulled in in front of the other car, [I] had total control of the car the entire time.

Following closing arguments, the municipal judge rendered an oral decision. He found defendant guilty of improper passing and provided the following explanation:

I do detect, Mr. Williamson, that on your behalf you seem to have this idea that because the car in front of you was going slowly and other vehicles on the road were going slowly that that gives you the right to pass that vehicle. You're forgetting the fact that the statute does require that you do so with safety. And the fact that your vehicle wasn't fish-tailing doesn't mean that the officer shouldn't make an observation that the passing was not done safely.

In this instance, Officer Gardini clearly . . . made a determination that the weather was clear, but the roads were snow covered. There had been a heavy snow. The roads had been plowed, but they were still snow covered. And the reason why all the other vehicles on the road were going eight to ten miles an hour, as you suggested, and not going faster is because the road conditions were such that going faster could be a dangerous condition. And that's the condition that Officer Gardini found when he saw you.

It's not okay to say that the vehicle in front of me is going slowly and, therefore, I'm able to pass him and I kept my vehicle under control. You can only pass him when you can do so safely and the officer made the determination [that] you may have been lucky this time, but you wouldn't have been lucky the next time, perhaps. So he made that determination.

I do find his testimony credible. I find that it's incredible that you, at the time of this event, would take it upon yourself to pass these vehicles and find that would be okay. So I am going to find you guilty of that charge.

Defendant appealed the conviction to the Law Division, which heard oral arguments on September 21, 2010. In a written decision dated October 12, 2010, the court found that "defendant's operation [of the vehicle] was unsafe and without due caution, based upon the conditions." However, it determined that he "should [have been] charged with careless driving underN.J.S.A. 39:4-97 rather than improper passing under N.J.S.A. 39:4-85." Therefore, the court modified the complaint pursuant to Rule 3:23-8(c) and found defendant guilty of careless driving.^² An order memorializing the decision was entered the same day.

On appeal, defendant asserts that the State failed to prove the elements of careless driving beyond a reasonable doubt. We agree.

Our review of the Law Division's decision is limited. We may not "engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). Instead, we consider only whether "the findings made could reasonably have been reached on sufficient credible evidence present in the record."State v. Johnson, 42 N.J. 146, 162 (1964).

N.J.S.A. 39:4-97 states: "A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving." Because careless driving is a quasi-criminal offense, the State must prove each element beyond a reasonable doubt. See State v. Badessa, 185 N.J. 303, 312 (2005) (noting that beyond a reasonable doubt "is the standard governing . . . quasi-criminal offenses prosecuted in municipal court").

In this case, the evidence presented by the State was insufficient to establish that defendant was driving his vehicle "in a manner so as to endanger, or be likely to endanger, a person or property." N.J.S.A. 39:4-97. Defendant was driving under the speed limit; the maneuver occurred in a legal passing zone; and there was no evidence that defendant's vehicle was being driven in an unsafe manner. Given these facts, we find that the State failed to prove defendant's guilt beyond a reasonable doubt. Cf. State v. Lutz, 309 N.J. Super. 317, 327 (App. Div. 1998) (reversing a conviction for careless driving where "[t]he State presented no evidence indicating that defendant had been speeding, driving too fast for the wet road conditions, distracted or otherwise driving without due caution and circumspection").

Reversed.

1 According to Gardini, "the rear of the vehicle was still covered with a heavy amount of snow." The obstructed view ticket was dismissed by the municipal court.

2 In relevant part, Rule 3:23-8(c) states that when considering a municipal appeal, the Law Division may "amend the complaint by making the charge more specific, definite or certain, or in any other manner, including the substitution of any charge growing out of the act or acts complained of or the surrounding circumstances of which the court from whose judgment or sentence the appeal is taken had jurisdiction."

STATE OF NEW JERSEY V. WALKER A-4672-08T1 June 28, 2011

2011-07-26T17:19:00.000-04:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4672-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

RASHAD WALKER a/k/a DERRICK MOSS,

Defendant-Appellant.

Submitted June 16, 2011 - Decided June 28, 2011

Before Judges Fisher and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2693.

Yvonne Smith Segars, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following his unsuccessful motion to suppress evidence, which was seized during a warrantless search of his residence, defendant pled guilty to two counts of third-degree possession of a controlled dangerous substance (CDS) with the intent to distribute, N.J.S.A. 2C:35-5a(1), and one count of third-degree CDS possession with the intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1. Defendant was sentenced to three concurrent and extended six-year prison terms, subject to three-year periods of parole ineligibility.

Defendant appealed, arguing:

I. THE TRIAL JUDGE ERRED IN FAILING TO GRANT THE DEFENDANT'S MOTION TO SUPPRESS UNDER THE CONTROLLING CASES OF STATE v. BOLTE[ 115 N.J. 579, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed.2d 320 (1989),] AND ITS PROGENY.

II. THE TRIAL JUDGE ERRED IN FAILING TO CON-SIDER A LESSER SENTENCE AND IN GRANTING MUL-TIPLE EXTENDED TERMS (Not Raised Below).

In light of our disposition of Point I, we need not reach Point II.

With regard to the denial of defendant's suppression motion, the record reveals that the judge conducted an evidentiary hearing at which only a police officer testified. The officer testified that a tip was received from a confidential informant, who had provided reliable information at least ten times in the past. The informant advised that a black male was selling heroin, cocaine, and marijuana from a specified apartment on Riverview Court in Newark. The judge described what occurred after police officers arrived at that location:

Officer Rios knocked on the apartment door. The door was opened by a black male, later identified as [defendant]. He was wearing blue jeans, a white tee shirt and was smoking a marijuana cigarette. Officer Rivera began to approach the door with his badge visibly displayed around his neck. After seeing Officer Rivera's badge, [defen-dant] tossed the marijuana cigarette inside the apartment and attempted to close the door and run into the apartment. Officer Rios, however, kept the door from closing and apprehended [defendant] inside of the apartment. Officer Rivera then retrieved the marijuana cigarette from the living room floor and placed [defendant] under arrest.

Once inside, the officers observed materials that appeared to be cocaine and other contraband.

Defendant does not dispute these facts -- or, at least, recognizes that our standard of review requires that we defer to these findings, see, e.g., State v. Elders, 192 N.J. 224, 244 (2007) -- but instead argues that, as a matter of law, the circumstances did not provide a sufficient basis for the officers' entry into his residence. We agree.

The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed."United States v. United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed.2d 752, 764 (1972). A warrantless search of a person's home is "presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed.2d 639, 651 (1980). This "basic principle of Fourth Amendment law" is also "a fundamental precept" of New Jersey's constitution. State v. Henry, 133 N.J. 104, 110, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed.2d 436 (1993). To justify a warrantless search of a home, the State must establish that police had probable cause and that exigent circumstances excused the need to seek a warrant. Welsh v. Wisconsin, 466 U.S. 740, 741, 104 S. Ct. 2091, 2093, 80 L. Ed.2d 732, 738 (1984); see also Bolte, supra, 115 N.J. at 585–86. Because the confidential informant's tip did not establish probable cause and the exigent circumstances were police-created, we reverse the denial of defendant's suppression motion.

The State must first establish that police had probable cause to justify a warrantless home entry. Ibid. Probable cause, which is defined as "a well grounded suspicion that a crime has been or is being committed," State v. Basil, 202 N.J. 570, 585 (2010), requires "'more than a mere suspicion of guilt' but less evidence than is needed to convict at trial,"State v. Brown, 205 N.J. 133, 144 (2011) (quoting Basil, supra, 202 N.J. at 585). Probable cause is established by examining the "totality of the circumstances"; "the court must make a practical, common sense determination whether, given all of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. O'Neal, 190 N.J. 601, 612 (2007) (internal quotation omitted).

"Information that police receive from confidential informants may" establish probable cause if there is "substantial evidence in the record to support the informant's statements." State v. Keyes, 184 N.J. 541, 555 (2005). In analyzing a tip, a court must examine the informant's "veracity and basis of knowledge." Ibid. Veracity "may be satisfied by demonstrating that the informant has proven reliable in the past," but "past instances of reliability do not conclusively establish an informant's reliability"; instead, the "current evidence must give the court an opportunity to make an independent evaluation of the informant's present veracity." Ibid. Basis of knowledge examines if "the informant obtained his information in a reliable manner," and "the court must decide whether the tip reveals 'expressly or clearly' how the informant became aware of the alleged criminal activity." Id. at 555–56. Without discovering how the informant obtained the information, basis of knowledge can be established "if the nature and details revealed in the tip . . . imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source." Id. at 556. Lastly, "an essential part of the determination of probable cause" is independent police corroboration. Id. at 556.

Here, the tip did not establish probable cause to enter defendant's home. First, although the confidential informant provided reliable information on ten previous occasions, this does not conclusively establish veracity. See id.at 555. In fact, the "current evidence" does not give the court "an opportunity to make an independent evaluation of the informant's present veracity." Ibid. The informant told the police that a black male was selling heroin, cocaine, and marijuana from a specific apartment, and he explained who would answer the door and how the transaction would occur; a black male did answer the door. This information does not allow the police to make an independent evaluation of the informant's present veracity because the only thing that was verified was that a black man answered the door of a specific apartment. In addition, the record does not reveal how the informant became aware of "the alleged criminal activity." See id. at 556. It does not reveal whether the informant purchased drugs from defendant, whether he saw someone purchase drugs from defendant, or whether he heard about defendant from a third party. Furthermore, this information does not imply that "the informant's knowledge . . . is derived from a trustworthy source." Ibid.Importantly, the police never corroborated the information by staging a controlled buy.

Similar tips have not been found to create probable cause to justify warrantless home entries in other cases. InState v. Lewis, 116 N.J. 477, 479 (1989), an informant deemed reliable told police he had information about a person selling narcotics. The police met the informant who said he "recently left" the defendant's apartment where he observed "narcotics on the kitchen table and other paraphernalia." Id. at 480. The informant also stated that defendant and others were packaging drugs in the apartment for distribution. Ibid. Soon after, the police arrived at defendant's apartment, and an officer knocked on the door.Ibid. A man asked "who is it?," and the officer responded "it's Tony."Ibid. Defendant "opened the door, observed [the officer] in uniform, and attempted to close the door," but the officer "stuck his foot in the door" and entered. Id. at 480–81. The court determined that "[t]he content of the informant's tip . . . fell short of 'a clear showing of probable cause'" for several reasons, including: (1) "the informant was described as 'very' reliable without any further evidence of his credibility"; (2) "[h]is reference to 'narcotics on the kitchen table' omitted any indication of type, quantity, or value"; and (3) "he was unable to identify any occupants of the apartment."Id. at 486–87.

In another case, an informant told police that a "black male named Bob, dressed in blue, was selling heroin from a certain address in Newark." State v. Hutchins, 116 N.J. 457, 459 (1989). Two plain-clothed officers went to the address, and the defendant, a black male wearing a blue jogging suit, answered the door; when the officers tried to buy drugs, the defendant did not respond, but the officers noticed that defendant's right fist was clenched to possibly hide narcotics. Ibid. The officers identified themselves and defendant "turned around and fled into the house," with the officers in pursuit. Ibid. The Court "disagree[d] with the trial court's conclusion that the facts gleaned from the informant were sufficient to establish probable cause . . . ." Id. at 474.

In a recent case, we considered a citizen's call to the police "to report people arguing and selling drugs and a possible gunshot." State v. Jefferson, 413 N.J. Super. 344, 349–50 (App. Div. 2010). The citizen described a red Grand Am, told the police its license plate number, and said that "an African-American man was involved, describing his skin tone and head covering." Id. at 350. Police went to the house where the car was registered and saw the defendant peering out the front door; they approached the door and told the defendant to show his hands. Ibid. The defendant complied and showed his hands around the door, but the officers were "still unable to see his waist area." Ibid. As the defendant stepped back from the door, it opened slightly, and one of the officers "wedged herself into the opening." Ibid.The defendant attempted to close the door, and he and the officer began to struggle. Id. at 350–51. Other officers pushed the door open, entered the hallway, and arrested the defendant. Id. at 351. We found that "the tip and corroborating evidence were not sufficient to establish probable cause." Id. at 353.

In another case, the Essex County prosecutor's office received a tip that drugs were being sold at a specific address.State v. Rice, 251 N.J. Super. 136, 137 (App. Div. 1991). Officers placed the house under surveillance and observed a man "approach the house and enter a screened . . . porch." Ibid. "A door to the interior of the house opened for . . . one minute and thereafter the" man left. Ibid. The officers then observed a couple enter the house and leave shortly thereafter. Id. at 138. Subsequently, the police knocked on the door and identified themselves after it opened.Ibid. The police heard scurrying inside the house and someone shout "police"; someone tried to push the door closed, but the police "pushed the door open, entered the house, found drugs . . . and made arrests." Ibid. We determined that the "police did not have probable cause to believe that drugs were being sold . . . when they approached the house and knocked on the door" because their information "was limited to an anonymous telephone tip and the visits" by the man and the couple. Id. at 139. In addition, we declared that the occupants of the house had a right to close the door and "bar the police from physical or visual access to the interior of their home." Id. at 144.

These cases demonstrate that a mere tip that a person is selling narcotics, without sufficient information to determine the informant's veracity and basis of knowledge, is not enough and compels our conclusion that the officers, here, did not have probable cause to enter defendant's home.^¹

A warrantless entry into a home also requires exigent circumstances. See Welsh, supra, 466 U.S. at 741, 104 S. Ct. at 2093, 80 L. Ed. 2d at 738; see also Bolte, supra, 115 N.J. at 585–86. Courts have "identified several exigencies that may justify a warrantless search of a home" as including "the need 'to prevent the imminent destruction of evidence.'" Kentucky v. King, __U.S. __, __ S. Ct. __, 179 L. Ed.2d 865, 875 (2011) (quoting Brigham City v. Stuart,547 U.S. 398, 403, 126 S. Ct. 1943, 1947,164 L. Ed.2d 650, 657 (2006)); see also Lewis, supra, 116 N.J. at 484;Hutchins, supra, 116 N.J. at 484. This is "the most frequently relied on exigent circumstance in drug cases." Lewis,supra, 116 N.J. at 484.

"Whether exigent circumstances exist to justify a warrantless home search or seizure is highly fact-dependent,"State v. De La Paz, 337 N.J. Super. 181, 195 (App. Div.), certif. denied, 168 N.J. 295 (2001), requiring consideration of the following factors:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause[;] and (9) the time of the entry.

[Id. at 195–96 (internal quotation omitted).]

Yet, police "may not rely on" exigent circumstances, such as "the need to prevent [the] destruction of evidence[,] when that exigency was 'created' or 'manufactured' by" police conduct. King, supra, __ U.S. at __, __ S. Ct. at __, 179 L. Ed. 2d at 875;see also De La Paz, supra, 337 N.J. Super. at 196 (holding that "[p]olice-created exigent circumstances which arise from unreasonable investigative conduct cannot justify warrantless home entries").

Here, if exigent circumstances existed, they were police-created. The plain-clothed officers knocked on defendant's door at approximately 11:00 p.m. Defendant answered, smoking a marijuana cigarette, and observed a police badge hanging around the neck of one of the officers, prompting his attempt to close the door and run back into the apartment. Arguably, this created an exigent circumstance because it is likely defendant was running back into his apartment to destroy any drugs he may have had. Applying the factors in De La Paz, the police, thus, had a reasonable belief that contraband would be removed. Id. at 195. In addition, defendant was aware that police were "on [his] trail" because they were at his door and the contraband was certainly destructible. Ibid.^² And the entry occurred at night. Id.at 196. However, even though it may be concluded that exigent circumstances existed, they were police-created because the exigency did not arise until the officers made their presence known.See ibid. In other words, prior to defendant seeing the officer's badge, police were not faced with "exceptional conditions" creating exigent circumstances. Lewis,supra, 116 N.J. at 488.

The order under review is reversed and the matter remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1Defendant also correctly argues that the State's claim of probable cause is not enhanced because defendant was smoking a marijuana cigarette when he answered the door. In Welsh, supra, 466 U.S. at 753, 104 S. Ct. at 2099, 80 L. Ed. 2d at 745, the Court held that "it 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." Our Supreme Court has recognized that disorderly persons offenses -- and possession of marijuana for personal use is a disorderly persons offense, N.J.S.A.2C:35-10(a)(4) -- "are within the category of 'minor offenses' held by the Welsh Court to be insufficient to establish exigent circumstances justifying a warrantless home entry." Bolte, supra, 115 N.J. at 597. Thus, the "need to search for evidence of possession of marijuana or to arrest the possessors therefore d[oes] not constitute 'exigent circumstances'" justifying the warrantless entry of a home. State v. Holland, 328 N.J. Super. 1, 10 (App. Div.), certif. denied, 164 N.J. 560 (2000).

2"[D]rugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain." King, supra, __ U.S.at __, __ S. Ct. at __, 179 L. Ed. 2d at 876.

STATE OF NEW JERSEY V. MARTINEZ A-4351-09T3 May 12, 2011

2011-07-22T15:14:00.000-04:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4351-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

JESSE MARTINEZ,

Defendant-Appellant.

May 12, 2011

Submitted April 12, 2011 - Decided

Before Judges Baxter and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 78-2009.

Antonio J. Toto, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jesse Martinez appeals from a May 12, 2010 Law Division judgment of conviction entered following a de novo trial based upon the record of proceedings in the East Brunswick Municipal Court. The Law Division found defendant guilty of driving while intoxicated (DWI),N.J.S.A. 39:4-50. Because the Law Division reached that result based on a misapprehension that it was obliged to defer to the decision of the municipal court, rather than conduct an independent assessment of the record, we reverse defendant's conviction and remand for further proceedings.

Defendant stipulated in both the municipal court and in the Law Division that his sole challenge to the State's proofs on the DWI charge was whether the East Brunswick Police Department had observed him for the twenty minutes required by State v. Chun, 194 N.J. 54, 129, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed.2d 41(2008), before administering the Alcotest. We therefore confine our discussion accordingly. At the trial in the municipal court, the State presented the testimony of Officer Wade Gordon, who was first certified in 2004 to administer the Alcotest, and who was recertified in 2006 and in 2008. Because Gordon is the one of the few police officers in the East Brunswick Police Department so certified, he is on call twenty-four hours per day to perform the test; and has administered the Alcotest approximately 150 times over the years since the Alcotest has been in effect.

Gordon explained that if he is called by an arresting officer and asked to perform the Alcotest, the arresting officer will already have the suspect handcuffed to the bench in the booking room at police headquarters by the time Gordon arrives. He described his standard procedure as follows, "I'll check their oral cavity and make sure there's no gum or any other object in the mouth and then just observe them for 20 minutes to make sure that they don't belch." After the twenty minutes has elapsed, he "take[s] them into the Alcotest room and administer[s] the tests."

In the case of defendant Martinez, Gordon was called to headquarters on May 10, 2008 by the arresting officer, Patrolman Unkel, to administer the Alcotest. When Gordon arrived at police headquarters, defendant was already "on the bench in the booking room and [he] checked [defendant's] mouth and . . . observed him for 20 minutes." Gordon noted that defendant's "oral cavity was clear." According to Gordon, he stood facing defendant "face to face" from six feet away while defendant was seated on the bench. Once the twenty-minute period had elapsed without defendant belching or doing anything else that would run afoul of the twenty-minute waiting period required by State v. Chun, Gordon uncuffed defendant from the bench and instructed defendant to walk in front of him into the Alcotest room. Gordon explained that he was "able to observe him" during the time that the two were walking the short distance to the Alcotest room.

On cross-examination, Gordon conceded that he did not include in his police report the time defendant was arrested, the time defendant was brought to headquarters by Patrolman Unkel or the time that the Alcotest began. He also conceded that he had not noted in his report that he observed defendant for twenty minutes before beginning the test. When asked by the prosecutor why he had not included his twenty-minute observation of defendant in his report, Gordon stated "[i]t's just a standard procedure that is done every time I run the breath test[.] [T]hat's why it's maybe not indicated on there." In answer to the prosecutor's question, "Is it something that's so standard at this point that you don't feel the need to actually record it," Gordon answered "[t]hat is correct." Gordon explained that defendant was arrested at 2:30 a.m., after which Unkel had, according to a document signed by Unkel, administered Miranda^¹ warnings to defendant at 3:00 a.m. in the booking room, and the Alcotest was started at 3:22 a.m.

Defendant testified, asserting that he was handcuffed to the bench in the booking room for "close to an hour" and he could hear Unkel and Gordon in another room engaged in "a lot of small talk . . . mostly about their weightlifting." Defendant maintained while he was in the booking room for that period of time, he could not see Gordon and Gordon could not see him. At the end of an hour, Gordon came in, released him from the handcuffs and brought him into the room where the breath test was performed. He maintained that neither officer had conducted any face-to-face observation of him before the Alcotest began, much less for the twenty minutes that Gordon claimed.

On cross-examination, defendant stated that the roadside sobriety tests were completed at 3 o'clock, the ride back to headquarters consumed fifteen minutes, five minutes elapsed from the time he and Patrolman Unkel arrived at police headquarters before Unkel handcuffed him to the bench, and he was seated on the bench for "about an hour" before the breath test began. He agreed that his timetable "would bring you to around 4:15." When confronted with the fact that the Alcotest was administered at 3:22 a.m., and his own time estimates would have caused the test not to begin until 4:15 a.m., defendant stated that he did not actually know whether the Alcotest began at 3:22 a.m., as Gordon had claimed. Defendant asserted that the test began much later, although he admitted he was not wearing a wrist watch and had no method of determining the actual times.

At the conclusion of defendant's testimony, the State recalled Officer Gordon, who reiterated that it was his "normal procedure" to stand next to the suspect seated on the bench and watch him continuously for twenty minutes, which he had done in this case. When asked by the judge whether any of the 150 Alcotest reports he had prepared in the past state whether he watched the suspect for the required twenty minutes, Gordon answered no.

At the conclusion of the testimony, the municipal court judge summarized the testimony in considerable detail, after which he reached the following conclusions:

All right. What I have here is I have, Mr. Martinez, I think you're a fine young man. I think that your times are way off. I don't think it's possible that you were brought there and sat there for that time and it was given at 4:30 yet every document prior to that was at 3:30.

There are too many people putting down the times for you to be correct in your analysis. So I understand that when you're sitting back there you're going through a lot and it's a nervous time and probably it seems like an hour[,] but could be a very short time.

And I believe Officer Gordon when he says he observed you for 20 minutes. And it certainly is possible if he said he saw the Miranda warnings being given at 3:00 and then brought you in at 3:22, that makes total sense to me.

And that 22 minute issue, I believe that Officer Gordon did observe 22 minutes at least prior to your [A]lcotest and therefore your motion to suppress the [A]lcotest reading based upon the failure to observe for 20 minutes is denied.

Defendant stipulated that there was probable cause to arrest him on the DWI charge, and he also stipulated to the admission in evidence of the twelve "foundational documents" required by State v. Chun. After the State reserved its right to present testimony about the field sobriety tests if defendant's conviction were to be reversed on appeal,^² the judge sentenced defendant, imposing appropriate fines and penalties, suspending defendant's driving privileges for a period of three months,^³ and requiring him to serve twelve hours in the Intoxicated Drivers Resource Center.

Defendant appealed his conviction to the Law Division. The proceedings on May 12, 2010 were brief, with neither attorney presenting any oral argument. Instead, the judge made the following findings of fact and conclusions of law, which we quote in their entirety:^⁴

Jesse Martinez filed a municipal appeal and the appeal number is 78-2009. It was a municipal appeal out of East Brunswick Municipal Court. I looked at the transcripts and I can understand [defense counsel's] frustration as to what happened in Municipal Court especially since the new term of art in [Alcotest] cases have [sic] to do with 20 minute observation. That term of art was brought to the legal community's attention in theState v. Chun. Draeger^⁵ when they made and manufactured the machine required a 20 minute observation so [defense counsel] found . . . the police officer's testimony to be less than credible especially since that word of art "20 minute observation" really wasn't in anybody's world in Municipal Court but it was in everybody's world with regard to the manufacturer's requirements of a police officer when performing the [Alcotest] and so I had denied the appeal.

I'm bound by the record below and it would seem that the judge below, [name of municipal court judge], found the officer to be credible on that point and the judge below found that 20 minute observation period had been conducted in accordance with the 20 minute rule so [defense counsel] filed the appeal and I gave a lot of consideration but based upon my function as a Superior Court judge reviewing the Municipal Court matter, I denied his application[.]

[(Emphasis added).]

On appeal, defendant raises the following claim:

I. THE COURT SHOULD HAVE REVERSED THE DECISION OF THE LOWER COURT AS THERE WAS NO PROOF OF A TWENTY MINUTE OBSERVATION PERIOD.

II.

Rule 3:23-8(a) provides for a de novo review on the record

when a municipal court conviction is appealed to the Law Division:

[T]he trial of the appeal shall be heard de novo on the record unless it shall appear that the rights of either party may be prejudiced by a substantially unintelligible record or that the rights of defendant were prejudiced below in which event the court to which the appeal has been taken may either reverse and remand for a new trial or conduct a plenary trial de novo without a jury.

A judge in a trial de novo must "make his own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197(1983). See also State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000);State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). "His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function in respect of defendant's guilt or innocence." Ross, supra, 189 N.J. Super. at 75.

Because the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472 (1999). However, the Law Division judge "need . . . give only due, although not necessarily controlling, regard to the opportunity of the municipal court judge to judge the credibility of the witnesses." Ross, supra, 189 N.J. Super.at 75. This is because the function of the Law Division is not "governed by the substantial evidence rule but rather [it engages in] an independent fact-finding function in respect of defendant's guilt or innocence." Ibid.(citing State v. States, 44 N.J. 285, 293 (1965); State v. Johnson, 42 N.J. 146, 157 (1964)).

By comparison, "when a defendant appeals from a judgment of [the Law Division] on an appeal from a municipal court, the appellate court will consider only the action of the [Law Division] and not that of the municipal court." State v. Joas, 34 N.J. 179, 184 (1961). Our review analyzes only whether there was sufficient credible evidence to uphold the decision of the Law Division. Johnson, supra, 42 N.J. at 162. We owe the Law Division's legal conclusions no deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Here, the Law Division judge appears not to have analyzed the record from the municipal court to make the independent findings of fact required by State v. Ross. Instead, the Law Division judge considered himself obligated to accept the factual findings of the municipal court judge whether he agreed with those findings or not, as evidenced by his statement that "the judge below found that 20 minute observation period had been conducted . . . but based upon my function as a Superior Court judge reviewing the Municipal Court matter I denied his application."

Because defendant's conviction in the Law Division is based upon a misapprehension of the applicable standard of review before that court, we vacate defendant's conviction and remand for further proceedings consistent with the principles discussed in this opinion. Jurisdiction is not retained.

Reversed and remanded.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).

2 We express no opinion on whether the State would be entitled to such a second trial.

3 Defendant's Alcotest reading was .09.

4 We note that defense counsel referred briefly to the judge having made comments on the record "last time." Because only the proceedings of May 12, 2010 have been transcribed, we asked both counsel whether there had been any other proceedings in the Law Division. Both assured us there had not.

5 The judge's reference to "Draeger" was to the manufacturer of the Alcotest machine, Draeger Safety Diagnostics, Inc.

State v. L.H. (A-31-09; 066436) 6-15-11

2011-07-19T15:58:00.000-04:00

6-15-11 State v. L.H. (A-31-09; 066436)

The judgment of the Appellate Division is reversed and the matter is remanded to the Law Division (1) for the entry of an order (a) vacating the entire award of 2,145 days of gap-time credits originally granted on September 18, 2009 and (b) remanding defendant L.H. to serve the sentence imposed on that date without any credit for gap time; and (2) for the entry of a corrected judgment of conviction reflecting no days of gap-time credit.

State v. Calleia (A-32-10; 066446) 6-9-11

2011-07-19T15:56:00.000-04:00

6-9-11 State v. George Calleia (A-32-10; 066446)

If a victim’s state-of-mind hearsay statements are relevant to show the victim’s conduct, and if such conduct also can give rise to motive when it is known or probably known to the defendant, then the statements are admissible for the purpose of establishing motive subject to the usual balancing under N.J.R.E. 403. Any error in this case stemming from the cumulative nature of the hearsay testimony is harmless.

State v. Gillispie (A-101-09; 064819) State v. Buttler 6-9-11

2011-07-19T15:52:00.000-04:00

6-9-11 State v. Dwayne Gillispie (A-101-09; 064819) State v. Gregory Buttler

Although the admission at trial of other-crimes evidence that provided unnecessary details of an earlier crime was unduly prejudicial and was not outweighed by an probative value, the error was harmless because there was independent, overwhelming proof that defendants Gillispie and Buttler were guilty.

State v. Rose (A-111-09; 065010) 6-8-11

2011-07-19T15:50:00.000-04:00

6-8-11 State v. Zarik Rose (A-111-09; 065010)

The disputed evidence was admissible under the New Jersey Rules of Evidence. It properly went to defendant’s motive, intent and plan, and the probative value of the evidence was not outweighed by its prejudice. In this appeal, the Court also ends the practice of invoking res gestae as an explanation for the admission of evidence.

State v. Hernandez (A-64-09; 064946) State v. Rose (A-65-09; 064945) 6-8-11

2011-07-19T15:38:00.001-04:00

6-8-11 State v. Andrea Hernandez, a/k/a Andrea Rosario (A-64-09; 064946) State v. Derrick Wayne Rose, a/k/a Derrick W. Stewart (A-65-09; 064945)

Both defendants are entitled to precisely what Rule 3:21-8 provides: credits against all sentences “for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence” on each case. The Rule must be consistently applied to promote uniformity in sentencing; there is no room for discretion in either granting or denying credits.