June 30, 2017

State v. Anthony K. Cole (A-66-15) (076255) Decided June 27, 2017


 State v. Anthony K. Cole (A-66-15) (076255)
  Decided June 27, 2017
PATTERSON, J., writing for the Court.
In this appeal, the Court reviews the trial court’s denial of defendant’s motion to bar the admission into evidence of three segments of video, recorded during breaks from questioning at police headquarters, in which defendant appeared alone in the interrogation room.
On the evening of September 7, 2009, David Donatelli was in Spring Lake Park, preparing for South Plainfield’s annual Labor Day fireworks display. As he stood looking up to examine a light stanchion, Donatelli was slashed. The laceration on the side of his neck exposed his carotid artery and jugular vein.
A police officer found two matching black-and-gray gloves. Blood identified by DNA analysis as Donatelli’s was found on the outside of the glove. State Police forensic scientists then swabbed the interior of both gloves and detected skin cells that matched defendant’s DNA profile in the database. Officers arrested defendant.
Police officers interrogated defendant in two sequential conversations, both video-recorded. Advised that the officers had forensic evidence linking him to the crime, defendant maintained his innocence, provided an alibi, and asked to be released. When the officers were in the room, defendant was gregarious and engaged. When briefly left alone during three breaks from the questioning, however, defendant adopted a starkly different demeanor; he muttered to himself, mouthed obscenities toward the location where the officers had been sitting and the video camera, and placed his hand inside his pants.
Defendant was tried before a jury over six days. On the second day of trial, defense counsel stated that the portions of the video recordings in which defendant appeared alone were unduly prejudicial under N.J.R.E. 403. The trial court ruled that the contested sections were relevant because they reflected on defendant’s demeanor and the accuracy of his statements. The court admitted the video recordings in their entirety. It invited defense counsel to submit a proposed jury instruction addressing the limited purpose for which the jury should consider the segments of the recordings in which defendant appeared alone.
During the State’s case, the contested video recordings were played for the jury. The trial court reiterated its offer to give the jury a cautionary instruction. The record does not indicate that defense counsel proposed such an instruction. The prosecutor specifically addressed defendant’s conduct when he was alone and suggested that defendant’s “manipulation” of his presentation to police signaled his guilt. Defendant did not object.
In its jury charge, the trial court instructed the jurors that they were the sole and exclusive judges of the evidence, including the credibility of witnesses, but did not specifically address the portions of the video recordings in which defendant sat alone in the interrogation room. The jury convicted defendant of attempted murder, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, and hindering apprehension. In a separate proceeding, the jury convicted defendant of the remaining offense, certain persons not to have a weapon.
An Appellate Division panel reversed defendant’s conviction and remanded for a new trial. The panel deemed the contested segments too equivocal to be admitted as consciousness-of-guilt evidence, particularly without a limiting instruction. The Court granted the State’s petition for certification. 224 N.J. 527 (2016).
HELD: The trial court properly exercised its broad discretion when it applied N.J.R.E. 401 and 403 to the contested evidence and admitted the video recordings in their entirety. The lack of a limiting instruction and the prosecutor’s comment on the evidence did not constitute plain error. 2

1. N.J.R.E. 401 defines “[r]elevant evidence” as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” Once a logical relevancy can be found to bridge the evidence offered and a consequential issue in the case, the evidence is admissible, unless exclusion is warranted under a specific evidence rule. N.J.R.E. 403 mandates the exclusion of evidence that is otherwise admissible “if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury.” To determine the admissibility of evidence under N.J.R.E. 401 and 403, the trial court conducts a fact-specific evaluation of the evidence in the setting of the individual case. On appellate review, considerable latitude is afforded to the court’s ruling, which is reversed only if it constitutes an abuse of discretion. (pp. 17-21)
2. In this case, the conduct depicted in the video recordings was germane to the jury’s assessment of defendant’s credibility in his statement to police and therefore relevant to its determination of pivotal issues. The portions of the two video recordings in which defendant was alone in the interrogation room met N.J.R.E. 401’s standard of relevancy. The segments at issue were potentially prejudicial to defendant; that evidence, however, was not prejudicial to the point at which the risk of prejudice substantially outweighed the probative value of the evidence, as N.J.R.E. 403 requires for the evidence to be excluded. The trial court did not abuse its discretion when it admitted into evidence the video recordings, including the portions in which defendant was alone. (pp. 21-27)
3. The Appellate Division panel reversed defendant’s conviction based not on a relevance analysis, but on its conclusion that the video segments were inadmissible as evidence of consciousness of guilt. The three video-recorded segments were not offered or admitted as consciousness-of-guilt evidence but on the ground that they were relevant to the jury’s evaluation of the credibility of defendant’s statement. Accordingly, the Court does not determine whether the evidence in question was admissible as consciousness-of-guilt evidence. (pp. 27-28)
4. The Appellate Division noted that the trial court did not give a limiting instruction. The trial court twice offered to give a limiting instruction. Defense counsel did not submit a proposed instruction and the trial court did not sua sponte charge the jury regarding the video recordings. Given the brief duration of the video-recorded excerpts in a six-day trial, it is unclear whether a limiting instruction would have clarified the limited purpose of the videotaped segments or overemphasized the evidence. Moreover, the State presented overwhelming evidence of defendant’s guilt, including DNA evidence linking defendant to a glove on which the victim’s blood was found shortly after the crime, as well as testimony by defendant’s mother and friends that substantially undermined his account of his activities during the critical time period. The trial court’s decision not to charge the jury on this issue was not “clearly capable of producing an unjust result,” and was not plain error. R. 2:10-2. (pp. 28-31)
5. The prosecutor’s reference to defendant’s demeanor as proof of his guilt was beyond the scope of fair comment. The prosecutor was free to discuss the video-recorded segments in which defendant was alone but should have constrained any such discussion to the question of credibility. The Court cautions prosecutors that when evidence is admitted for a limited purpose, comments in summation that exceed the bounds of that purpose must be avoided. However, the comment was not clearly capable of producing an unjust result, giving rise to plain error. (pp. 31-34)
6. The Court addresses the issues raised in the concurrence, and stresses that its ruling is distinctly fact-sensitive and based on the standard of review. (pp. 34-38)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Appellate Division for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER, CONCURRING, is of the view that multiple reasonable inferences can be drawn from defendant’s behavior after the interview and that no authority directly supports the use of evidence of a witness’s demeanor after an interrogation has ended. According to Chief Justice Rabner, the video’s minimal relevance was substantially outweighed by the risk of undue prejudice and the danger that the recording would mislead the jury, and the evidence should have been excluded under N.J.R.E. 403. Chief Justice Rabner concurs in the judgment because he finds the error was harmless in light of other strong evidence of defendant’s guilt.

JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON join in JUSTICE PATTERSON’s opinion. CHIEF JUSTICE RABNER filed a separate, concurring opinion, in which JUSTICES ALBIN and TIMPONE join

June 29, 2017

State v Robinson 448 NJ Super. 501 (App. Div 2017) Under new court rules, defendant entitled to discovery prior to new pre-detention hearing


State v Robinson 448 NJ Super. 501 (App. Div 2017)

Under new court rules, defendant entitled to discovery prior to new pre-detention hearing


The opinion addresses the scope of the discovery, which the State must produce prior to a pretrial detention hearing held under the Bail Reform Act, N.J.S.A. 2A:162-15 to -26. Specifically, the court construes Rule 3:4-2(c)(1)(B), which requires the prosecutor to produce "all statements or reports in its possession relating to the pretrial detention application."
The court rejects the State's argument that its discovery obligation is limited to producing the probable cause affidavit and the preliminary law enforcement information report (PLEIR). The rule obligates the prosecutor to provide a defendant with those materials in the State's possession that relate to the facts on which the State bases its pretrial detention application. In this case, the probable cause affidavit relied on eyewitness identification of defendant, and the opinion affirms the trial court's order requiring the prosecutor to provide defendant with the two eyewitness statements, photo arrays, a surveillance video, and the initial police reports. A-1891-16T2

State v Mauti 208 NJ 519 (2017) DNA on towel not admissible without proper foundation and chain of custody

State v Mauti 208 NJ 519 (2017)
  DNA on towel not admissible without proper foundation and chain of custody

A jury found defendant guilty of third degree aggravated criminal sexual contact and fourth degree criminal sexual contact and not guilty of first degree aggravated sexual assault and second degree sexual assault. Defendant is a physician. The complaining witness is his sister-in-law. The court reverse and remand for a new trial.
The court hold the trial judge should have excluded a towel containing defendant's semen based on the absence of competent evidence linking it to the alleged sexual assault. The towel also constituted inadmissible hearsay by conduct under N.J.R.E. 801(a)(2).
The judge also abused his discretion by permitting the State to call five fresh-complaint witnesses and thereafter deciding not to instruct the jury on fresh-complaint testimony. Defense counsel’s acquiescence to the trial judge’s decision not to charge the jury on fresh-complaint did not constitute invited error.
Finally, The court conclude that the trial court properly admitted a redacted version of a letter sent by defense counsel to the prosecutor as an adopted admission under N.J.R.E. 803(b)(3). Under these circumstances, The court reject defendant’s argument that defense counsel’s letter falls within the ambit of "plea negotiations," as that term is used in N.J.R.E. 410. Our analysis is guided by the federal courts’ review of Fed. R. Evid. 410, the source rule of N.J.R.E. 410.
As a matter of first impression in this State, The court adopt the analytical approach used by the Fifth Circuit Court of Appeals in United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978) to determine when interactions between the State’s representative and defense counsel constitute protected “plea negotiations” under N.J.R.E. 410. This approach requires a trial judge to determine: (1) whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion; and (2) whether the accused's expectation was reasonable given the totality of the objective circumstances. The State bears the burden of proof. Because this two-tiered approach requires a fact-sensitive analysis, the trial judge should conduct an N.J.R.E. 104 hearing to resolve any disputed facts.  A-3551-12T3

State v. Robertson 228 NJ 138 (2017) Municipal Court can stay DL suspension after DWI if appeal

State v. Robertson 228 NJ 138 (2017)
Municipal Court can stay DL suspension after DWI if appeal
   The Crowe factors are not a good fit to assess license suspensions in driving while intoxicated (DWI) cases. Defendants who seek a new trial before the Law Division should be presumptively eligible for a stay of a driver’s license suspension. The State can overcome that presumption by showing that a stay would present a serious threat to the safety of any person or the community. If no conditions would mitigate that risk, the court should not stay the sentence. If a defendant is convicted of DWI by the Law Division, the defendant has the burden to justify a stay of a driver’s license pending appeal to the Appellate Division by demonstrating the three elements set forth in Rule 2:9-4. If a stay is granted, the court may impose appropriate conditions similar to those available after a defendant’s conviction in municipal court. Municipal court and trial judges should set forth reasons on the record when they rule on a stay motion. (A-58-14)

June 12, 2017

Middlesex County Municipal Court Judges


Middlesex County Municipal Court Judges
COURT NAME                           JUDGE                              COURT FAX NUMBER
Carteret Court                      Allen Comba                  732-541-0581
Dunellen Court                       Dennis M. Fackelman     732-968-3576
East Brunswick Court             Robyn Brown                 732-390-6913
                                             Paul J. Endler, JMC
Edison Court                          Gary M. Price                732-287-0743
                                             Parag Patel         
                                             Mary Casey
Helmetta Court                      Edward Herman             732-521-3626
Highland Park Court               Edward Herman             732-777-6007
Jamesburg Court                   Edward Herman             732-521-3626
Metuchen Court                     James Graziano             732-603-8763
Middlesex Boro. Court            Dennis M. Fackelman     732-356-5053
                                            
Milltown Court                        Christine Heitman         732-828-6318
Monroe Court                         George M. Boyd             732-521-2607
New Brunswick Court             James Hoebich    
Phil Borrow                   732-745-5180
                                             Mary Casey
                                            
North Brunswick                    Christine Heitman
William Feingold             732-214-8812
                                              
Old Bridge Court                     James F. Weber            732-607-7946
                          
Perth Amboy Court                George M. Boyd             732-442-0774
                                             _____
                                             __    
Piscataway Court                   Dennis M. Fackelman     732-562-2386
                                             James Hoebich             
Plainsboro/Cranbury Court     Edward Herman             609-936-1441
Sayreville Court                     James Weber                732-525-9245
                                              Michael Sica
South Amboy                         James Weber                732-727-4600
South Brunswick                    Michael V. Dowgin          732-274-1523
                                              Spero Kalambakas
                                    ­­­­____
South Plainfield Court            Katherine Howes            908-754-5628
South River Court                  Tina Martins Cruz          732-613-6100
Spotswood Court                   Edward Herman             732-723-1924
Woodbridge Court                  Kevin Morse                 732-855-7991
                                             David Stahl, Neal Casey

Middlesex Mun Ct Judges     List by Ken Vercammen, Past Chair Municipal Court Practice Section of NJ State Bar Association  Please fax any revisions to Kenneth Vercammen, Esq. at 732-572-0030.      Thank you  11/30/16

March 2, 2017

Defendant’s furtive movement after car stop here justified removal of passenger State v. Bacome __ NJ __ (2017}

Defendant’s furtive movement after car stop here justified removal of passenger  State v. Bacome __ NJ __ (2017}
The heightened-caution standard announced in Smith, supra, 134 N.J. at 618-20, remains the proper test for determining the appropriateness of ordering a passenger from a car. Under the Smith test, defendant’s furtive movements inside a recently stopped vehicle provided an objectively reasonable basis for officers’ exercising heightened caution, justifying removal of the passenger.  (A-9-15; 075953)
      State v. Tawian Bacome (A-9-15) (075953)

  Decided January 31, 2017

Timpone, J., writing for a unanimous Court.
In their unmarked vehicle, the detectives followed the Bronco, losing sight of it shortly after arriving in an area of Newark known for crime and drug trafficking. In an attempt to pick up the Bronco’s trail, the detectives drove back to Woodbridge, presuming that defendant and S.R. would return there with newly purchased drugs.
About an hour later, the detectives observed the Bronco re-enter Woodbridge. The detectives resumed surveillance and, after they both observed S.R. in the passenger seat not wearing his seatbelt, they conducted a traffic stop.
Once they stopped the Bronco, Harris approached the driver’s side while Jaremczak approached the passenger’s side. Harris reported that he saw defendant lean forward as if he were reaching under his seat. Harris immediately ordered defendant to exit the vehicle. Jaremczak then ordered S.R. out of the passenger’s seat. Both occupants complied.
The detectives questioned the men separately about their destination; they gave contradictory responses. Because S.R. no longer occupied the passenger’s seat, Jaremczak was able to glimpse a rolled-up piece of paper in the shape of a straw and a small piece of Brillo-like steel wool on the car floor, near the front of the center console. Jaremczak knew from experience that those items are consistent with narcotics use.
Following the inconsistent accounts of defendant and S.R. about their destination and the plain-view observation of the Brillo and straw, Jaremczak obtained S.R.’s written consent to search the car. Jaremczak concluded that S.R. did not appear to be under the influence of narcotics and apparently understood his rights. Upon execution of the search, Jaremczak found “blunt wrappers,” or cigar shells often used to wrap marijuana; a used crack pipe inside a cigarette pack; a larger piece of Brillo; and thirteen vials of crack cocaine in a separate cigarette pack. The detectives placed defendant and S.R. under arrest. At the police station, defendant gave a videotaped statement, confessing to being the sole owner of the crack cocaine and the narcotics-related paraphernalia.

In this appeal, the Court clarifies the circumstances under which police officers may require a passenger in an automobile to exit a vehicle after a valid stop.


Defendant later moved to suppress the seized narcotics and paraphernalia; the trial court denied the motion. The court found the stop to be lawful because of the passenger’s failure to wear a seatbelt. The court also found the passenger’s removal from the car to be lawful because the officers had reasonable and articulable suspicion of criminal activity. Defendant later pleaded guilty to third-degree possession of cocaine, a controlled dangerous substance, and was sentenced to a three-year prison term in accordance with his plea agreement.

For the first time on appeal, defendant specifically challenged S.R.’s removal from the vehicle. The Appellate Division remanded to the trial court, which found that defendant’s reaching under the seat created the heightened caution required under State v. Smith, 134 N.J. 599, 618-20 (1994), and warranted S.R.’s removal.

Defendant again appealed to the Appellate Division. In a split decision, the majority reversed the trial court’s order denying the suppression motion and concluded that the detectives failed to prove Smith’s heightened-caution requirement. 440 N.J. Super. 228, 244 (App. Div. 2015). The majority held that stopping the vehicle for a seatbelt violation was a “ruse” that allowed the detectives to conduct a narcotics investigation.

The dissent maintained that the detectives lawfully stopped the vehicle because S.R. had failed to wear a seatbelt and they reasonably suspected that the men had purchased narcotics in Newark. Id. at 248-50 (Nugent, J., dissenting). The dissent concluded that a culpable passenger’s liberty interest is no different from that of a driver who commits a traffic violation and that asking S.R. to step out of the vehicle was permissible. Id. at 247-50.

The split within the panel afforded the State an appeal as of right on the issues reached by the Appellate Division. The Court granted the State’s petition for certification on other relevant issues. 223 N.J. 279 (2015).

HELD: The heightened-caution standard announced in Smith, supra, 134 N.J. at 618-20, remains the proper test for determining the appropriateness of ordering a passenger from a car. Under the Smith test, defendant’s furtive movements inside a recently stopped vehicle provided an objectively reasonable basis for officers’ exercising heightened caution, justifying removal of the passenger.

1. To be lawful, an automobile stop must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed. S.R. failed to wear his seatbelt and therefore violated the traffic code. The stop followed the detectives’ observation of the traffic code violation and was therefore valid. The detectives’ subjective intent is irrelevant in light of the objective grounds for the stop. Because the stop was justified by the detectives’ reasonable and articulable suspicion as to the traffic offense, the Court does not reach the issue of reasonable and articulable suspicion of drug activity.  

2. The New Jersey and Federal Constitutions protect against “unreasonable searches and seizures.” N.J. Const. art. I, ¶ 7; see U.S. Const. amend. IV. In 1977, the United States Supreme Court held it objectively reasonable for officers to order a driver out of a lawfully stopped vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977). In 1994, this Court declined to extend the Mimms rule to passengers, instead determining that officers may order passengers out of a vehicle only if they can assert “specific and articulable facts that would warrant heightened caution.” Smith, supra, 134 N.J. at 618.  

3. Three years after Smith, the United States Supreme Court declared, “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.” Maryland v. Wilson, 519 U.S. 408, 415 (1997). After Wilson, New Jersey law was more protective than federal law on the issue of passenger removal. In State v. Sloane, 193 N.J. 423, 431 (2008), the Court concluded that, “when a police officer conducts a traffic stop of a private vehicle, the passenger as well as the driver are seized under both the federal and state constitutions.” Most recently, the Court reaffirmed the Smith standard in State v. Mai, 202 N.J. 12, 22, 24-25 (2010).  

4. As to the State’s contention that the Smith standard has been eroded by subsequent decisions, the Court observes that no decision since Smith, including Sloane, has implicitly or explicitly modified or overruled Smith. Here, the Court reaffirms the Smith heightened-caution standard for questions of passenger removal: officers may remove passengers only when the circumstances present reason for heightened caution

5. Furtive movements may satisfy the heightened caution standard. See Smith, supra, 134 N.J. at 618-19. The unknown nature of surreptitious movements creates risk for an officer and, in turn, that risk supports the exercise of heightened caution. It would be impractical to require officers to determine whether the movement was to hide a weapon or a box of tissues before taking any precautionary measures. Such a rule would threaten officer safety.

6. Here, the furtive movements inside the car were “specific and articulable facts” that warranted heightened caution and justified removal of the passenger, placing the detectives in a position lawfully to observe the contraband in plain view. The evidence was appropriately seized under the plain-view exception to the warrant requirement, and defendant’s conviction and sentence were based on properly admitted evidence.  

7. The Court notes that defendants should state the basis for a motion to suppress when making it to allow for appropriate development of the record.  

The judgment of the Appellate Division is REVERSED. Defendant’s conviction and sentence are REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.