December 2, 2007

State v. Thomas Lykes

11-5-07 (A-80-06)

Because Lykes placed his knowledge as to the contents of the
four vials directly at issue, N.J.R.E. 404(b) does not bar the
limited impeachment use of Lykes’ admission of having earlier
held cocaine vials and the questions allowed in this area were
proper. Furthermore, taken as a whole, the trial court’s
response to the jury’s question in respect of Lykes’ knowledge
as to the contents of the vials fairly and adequately instructed
the jury and, therefore, was improper.

State v. Howard Parks

10-25-07 (A-39-06)

The amended Three Strikes Law applies to defendant’s sentencing.
Because defendant “committed” only one predicate offense prior
to the subject offense, he did not qualify for enhanced
sentencing under the Three Strikes Law.

State v. A.O.

11-27-07 A-5388-04T4

Defendant was convicted of aggravated sexual assault based
on the uncorroborated testimony of a child witness who had
recanted her accusation and then withdrawn the recantation.
Prior to his arrest, defendant entered into a polygraph
stipulation without advice of counsel. He failed the test, and
the test result was admitted at his trial. We reversed his
conviction, holding that inducing an uncounseled defendant to
sign a stipulation agreeing that polygraph results will be
admissible at trial, violates the defendant's Sixth Amendment
right to trial counsel. We also held that the trial court
should have held a State v. Guenther hearing before barring
defendant from introducing evidence that a few months after
accusing defendant, the victim-witness accused another man of
molesting her and then recanted her accusation. We concluded
Guenther applies to later, as well as prior, recanted
accusations. Judge Weissbard filed a concurring opinion.

State v. Gary Gaither, a/k/a Gary W. Gaither

11-16-07 A-3063-05T4

Defendant appealed an order denying his petition for postconviction
relief (PCR) alleging ineffective assistance of
appellate counsel. Defendant argued that his appellate
counsel's failure to communicate with him regarding his appeal
constituted ineffective assistance of counsel per se. Secondly,
defendant sought to extend the holding in State v. Rue, 175 N.J.
1 (2002), to appellate counsel. In Rue, the Supreme Court held
that an attorney representing a defendant in a PCR petition is
required to communicate with his client, investigate the
client's claim, and advance all arguments requested by the
client.

We held that the two-prong Strickland analysis is to be
used in such cases and, therefore, that the failure to
communicate is not per se ineffective assistance of counsel. We
also declined to apply Rue to appellate counsel, finding it was
inappropriate and unnecessary.

State v. Marcus Cassady

10-26-07 A-6057-05T4

A jury found defendant guilty of robbery. Rejecting
defense counsel's claim that the jury could conclude that
defendant did not have the requisite purpose to put the bank
teller in fear of immediate bodily injury, the trial court
denied defendant's request for a jury instruction on theft.
Although the evidence was adequate to support defendant's
conviction for robbery, it also provided a rational basis for an
acquittal on that charge and conviction of theft. Accordingly,
we reverse.

Judge Fuentes is filing a dissent.

State v. Michele Dixon

10-24-07 A-2419-04T4

For purposes of the bias intimidation statute, N.J.S.A.
2C:16-1, the term "handicap" should be defined with reference to
the Law Against Discrimination, N.J.S.A. 10:5-5q, rather than by
using a dictionary definition of the term.

November 25, 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007
ABA General Practice, Solo and Small Firm Division American Bar Association

Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ

In this Issue:
1. Hearsay Not Admissible at Trial based on Crawford Decision
2. Consequences of a Criminal Guilty Plea in Superior Court
____________________________________________________


1. Hearsay Not Admissible at Trial based on Crawford Decision
By Kenneth Vercammen, Esq.

Prior to 2004, in Municipal Court and criminal cases, statements and documents could often be introduced into evidence over defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination.

In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. 
 The Court held that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
In Crawford: “the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.

The US Supreme Court in 2006 next had the opportunity to determine hearsay issues when the court was petitioned to decide if 911 calls are admissible if the witness will not come to court.

In Davis v. Washington 126 S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not Hearsay. The Court elaborated on the meaning of testimonial:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]

The New Jersey Appellate Division on March 6, 2006 had previously determined that an Eyewitness 911 Call to Report Attack Admissible as an Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)

In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).

Certification has been granted by the NJ Supreme Court in the J.A. case. The New Jersey Supreme Court is hearing several other appeals on the Crawford admissibility issue.

In State v Buda 389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis Ed. 2d 224 (2006). Certification to the NJ Supreme Court was also granted on May 21, 2007.

Under Caselaw decided in 1985, a lab certificate was admitted in DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
In State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Required in DWI Blood Case if an objection is filed by the defense.
Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.

The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test.
 Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.
Certification has been granted in Berezansky.

The next major case to examine the Crawford case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.

Another case where the Court Ruled that Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.

The court reaffirmed the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.
The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.

However, Defendant's DWI conviction in Renshaw was affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.

In DWI breathalyzer cases, for decades DWI breathalyzer certificates were admitted as an exception to Hearsay Rules. Based on Crawford, the Appellate Division revisited the admissibility of these paper certificates. In State v. Dorman, 393 NJ Super. 28 (App. Div. 2007) the court held Hearsay Rules do not apply to Breathalyzer certs. In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).

The NJ Supreme Court also granted Certification in unreported cases on the same issue, State v. Sweet, A-0091-05. In Sweet, the Breathalyzer Inspection Certification were also found to be admissible outside of Crawford.

Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar
Association, New Jersey State Bar Association and Middlesex County Bar Association.

He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 12 years.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He has
appeared in Courts throughout New Jersey several times each week on personal injury matters, Municipal Court trials, and contested Probate hearings.

2. Consequences of a Criminal Guilty Plea in Lower criminal courts Court
Some individuals don’t want to spend money to hire an attorney, but instead just plead guilty at their initial court appearance. They should read the following before representing themselves:
1 If you plead guilty you will have a criminal record
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
4. On employment applications, you will have to answer yes that you were convicted of a criminal offense.
5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty in many states.
6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation in many states.
7 In many drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
8. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing in many states.
9. You must pay restitution if the court finds there is a victim who has suffered a loss.
10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.


The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com

Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com

October 22, 2007

Kofi Ries v. Department of Corrections

10-18-07 A-6484-05T2

Pursuant to N.J.S.A. 30:1B-3 and N.J.S.A. 30:4-91.3, the
Commissioner of Corrections maintains authority over adult
offenders committed to state correctional institutions, even at
times when they are physically outside prison walls.
Consequently, the Department of Corrections was authorized to
discipline appellant, who tested positive for cocaine and
opiates upon his return to state prison after escaping from a
halfway house, for violating the Department's regulation *.204
prohibiting the use of controlled dangerous substances. See
N.J.A.C. 10A:4-4.1.

State v. Jessie D. Chambers

10-15-07* A-6180-04T4
Under N.J.S.A. 2C:35-7.1, the crime of possession of a
CDS with the intent to distribute is elevated from a thirddegree
crime to a second-degree crime if the offense is
committed within 500 feet of a public building. In this
opinion, we conclude that a museum qualifies as a public
building even if it does not maintain regular hours and is only
open to the public upon request.(*Approved for Publication date)

State v. Jeffrey Bendix

10-11-07* A-6508-05T3

We concluded that the trial court took too restrictive a
view of the court's discretion, under N.J.S.A. 2C:35-16a, to
grant defendant a hardship exception from the requirement that
his driver's license be suspended due to his conviction for drug
offenses. In remanding for a new hearing on the exception
issue, we provided guidance as to the proper procedures for
conducting the hearing. Defense counsel should present his
client's application through formal witness testimony, and the
State's opposition should likewise be presented through
testimony rather than representations of counsel. (*Approved for
Publication date)

State v. Eric Rowland

10-11-07 A-4383-06T5

The Contractors' Registration Act, N.J.S.A. 56:8-136 to -
152, includes provisions under which knowingly engaging in the
business of making or selling home improvements without having
registered with the Division of Consumer Affairs is a fourth
degree crime. Although the Act states that "a person who
knowingly violates any of the provisions of this act is guilty
of a crime of the fourth degree," the underlined phrase does not
mean that the State must prove defendant knew about the Act and
its provisions. In short, when used in a statute, the
underlined phrase does not make knowledge of the law an element
of the crime.

State v. Kevin Johnson

10-11-07 A-4544-05T4

In this appeal we examine the consequences of a sentencing
court's failure to notify a defendant of his right to appeal
within forty-five days, when the sentence was imposed prior to
the New Jersey Supreme Court's opinion in State v. Molina, 187
N.J. 531 (2006). In Molina, the Court made prospective its
holding that such a defendant had five years from the date of
sentencing to move for leave to appeal as within time.

State v. David L. Moon, a/k/a David L.

10-09-07
This case requires us to consider the elements of
endangering an injured victim, N.J.S.A. 2C:12-1.2b(2). We
conclude that the crime does not apply to a person who abandons
a corpse.

October 4, 2007

State v. Altariq Laboo

09-28-07 A-3746-06T5

Three individuals committed a string of armed robberies
over the course of a one-hour period, taking items that included
two cell phones. Approximately thirty hours after the last
robbery, police used a tracking device to track one of the
stolen cell phones to a three-family home located in a highcrime
area. Three officers entered the building and used a
handheld tracking device to determine the exact apartment. An
officer knocked on the apartment door and announced that he was
a police officer. The officer then heard a young female yelling
and a man's voice saying "shut up, shut up, 5-0," and scurrying
inside the apartment. Without obtaining a warrant, the officers
forcibly entered the apartment, wherein they found evidence from
the robberies.

We reversed the law division's order suppressing the
evidence. The search was justified because the exigent
circumstances, although police-created, arose as a result of
reasonable investigative conduct. We held that the police were
not required to procure a warrant because a delay presented a
real potential danger to the officers and public, under the
circumstances.

September 25, 2007

State v. Jason G. Meyer

9-19-07 (A-122-05/A-43-06)

“Special probation” under N.J.S.A. 2C:35-14 is a type of
disposition for certain non-violent drug offenders, but it is
not the exclusive route to admission into Drug Court.
Consistent with the Drug Court Manual and the general sentencing
provisions of the Code of Criminal Justice, N.J.S.A. 2C:45-1, a
trial court has discretion to admit non-violent drug-dependent
offenders into Drug Court.

State v. Wayne DeAngelo

09-13-07 A-4229-05T3

The focus of this appeal is the enforceability of a
municipal ordinance that prevents the display of a large balloon
in the shape of a rat during a labor dispute. We hold that the
ordinance, which does not affect the parties' rights in the
labor dispute, is not preempted by the National Labor Relations
Act (NLRA), 29 U.S.C.A. § 151-69, nor does it abridge any
party's freedom of expression. The ordinance is not void for
vagueness. It is content-neutral and the record does not
support a claim that it was selectively inferred.
Judge Sabatino dissents in part. He perceives a lack of
content neutrality in the ordinance because it allows balloon
grand opening signs.

State of New Jersey v. John L. Nyhammer

09-06-07 A-5672-04T4

We reverse a conviction for aggravated sexual assault on a
girl, then nine years old, concluding that each of two rulings
constituted reversible error. First, the judge should not have
admitted defendant's confession. An investigator called
defendant and explained that he was conducting an investigation
against another man in connection with the abuse of another
child as well as the victim in this case. The investigator did
not indicate to defendant that the victim in this case had made
allegations of abuse by defendants. Defendant went to the
police station. The investigator gave defendant the Miranda
warnings. After defendant gave a formal statement regarding the
incident of abuse by the other man, the investigator told him
that the victim had made accusations against defendant as well.
Defendant became distraught. Miranda warnings were not given a
second time. Defendant confessed. We conclude that defendant
did not make a knowing and voluntary waiver of his right to
remain silent. Therefore, his confession was inadmissible.
Second, we conclude that the victim's hearsay videotape,
which was the sole substantive evidence proving defendant's
conduct, should have been excluded from evidence, pursuant to
the Confrontation Clause. The videotaped statement was
"testimonial," there was no prior opportunity for defendant to
cross-examine the victim, and there was no opportunity for an
adequate and meaningful cross-examination at trial because the
victim was unresponsive to many questions. At trial, she did
not recollect questions going to the heart of the charges.
Therefore, the videotape was the sole substantive evidence at
trial.

State of New Jersey vs. Ahmet S. Kotsev

08-31-07 A-3256-05T5

1. N.J.S.A. 39:4-50 mandates a minimum of ninety consecutive
days incarceration for a third or subsequent conviction for
driving while intoxicated (DWI). Sheriff's Labor Assistance
Programs (SLAP) and weekend service are not substitute
sentencing options for third or subsequent offenders.
2. The 1993 statute mandated a third or subsequent offender to
serve 180 days incarceration "except that the court may lower
such term for each day, not exceeding ninety days, served
performing community service." No other options are available.
3. The 2004 amendment to N.J.S.A. 39:4-50, commonly referred
to as Michael's Law, similarly mandates 180 days incarceration
but allows a reduction of one day for each day, not exceeding
ninety days, in an inpatient rehabilitation program.
In other words, a third or subsequent DWI conviction
requires a defendant to serve a minimum of ninety consecutive
days of incarceration.(*Approved for Publication date)

Borough of Glassboro v. Fraternal Order of Police

08-27-07 A-3145-05T2

When two police officers apply for the same promotion in a
non-civil service municipality, residency may be considered by
the appointing authority only where the resident and nonresident
achieve the same score on a qualifying test. N.J.S.A. 40A:14-
122.6.

August 20, 2007

State v. Jay C. Fisher

08-14-07 A-3026-05T3

Pursuant to N.J.S.A. 2C:11-5.1, a driver involved in a
motor vehicle accident that results in the death of another
person is guilty of a crime if the driver fails to comply with
the requirements of N.J.S.A. 39:4-129. The driver must either
remain at the scene to provide his or her driving credentials to
designated persons or report the accident and his or her
identity to the nearest officer of the local police department,
county police or the State Police. Compliance with those
requirements would preclude prosecution under N.J.S.A. 2C:11-
5.1.

Moreover, compliance with those requirements would not
violate the driver's privilege against self-incrimination. As
the United States Supreme Court recognized in California v.
Byers, disclosure of name and address is essentially a neutral
act and most accidents occur without creating criminal
liability. Under the facts of this case, there was no
reasonable basis for the driver to apprehend prosecution,
inasmuch as the decedent had been crouching or lying near the
middle of the road. If, under different facts, compliance with
the statutory requirements did pose a legitimate risk of selfincrimination,
it might be necessary to accord compliant drivers
use or derivative-use immunity as outlined in State v. Patton.

August 6, 2007

State v. Ernest Spell

07-31-07 A-4186-05T5

While the record supports the conviction for refusal to
take a breathalyzer test, N.J.S.A. 39:4-50.2, and the conviction
is affirmed, effective October 1, 2007 officers must read the
additional paragraph of the statutorily promulgated statement of
the Motor Vehicle Commission before any refusal conviction can
be sustained.

Jeanne Klawitter and Dennis J. DeBonis v. City of Trenton

07-31-07 A-0208-05T5

This appeal by the City of Trenton presents two distinct
issues regarding employment-related claims by two members of the
Trenton Police Department.

Klawitter's claim of reverse discrimination based on race
in the denial of a promotion resulted in a jury verdict in her
favor. We affirmed. We rejected the City's argument that it
was permissible to use race as a "plus" factor. The City
maintained at trial that race was not a factor in any respect.
It did not present evidence or argue that race was considered as
a plus factor. Further, race can be used as a plus factor only
pursuant to an established affirmative action plan. The City
did not establish the existence of such a plan.

DeBonis, a sergeant, filed for retirement but, within
thirty days of the effective date, sought to cancel his
retirement as authorized by a pension regulation, N.J.A.C. 17:4-
6.3, and requested to be rehired to a vacant sergeant position.
The City refused, informing DeBonis that, pursuant to civil
service regulations, his name could be placed on a reemployment
list. The trial court granted partial summary judgment on
liability in favor of DeBonis and a jury awarded him damages.
We reversed, holding that DeBonis' right to cancel his
retirement under pension regulations did not entitle him to
immediate reemployment, which, instead, was controlled by
priorities promulgated by civil service laws and regulations.

July 30, 2007

State v. Michelle L. Elders

7-30-07 (A-42-06)

The “reasonable and articulable suspicion” standard of State v.
Carty, 174 N.J. 351 (2002), which governs consent searches of
cars that are validly stopped applies equally to disabled
vehicles on the State’s roadways. In this case, the Court
concludes that there was sufficient credible evidence in the
record to support the trial judge’s findings that the troopers
engaged in an unconstitutional investigatory detention and
search.

State v. Ronald Burns

7-26-07 (A-27-06)

When faced with the difficult dilemma of handling a recalcitrant
witness who had no valid basis to refuse to testify, the trial
court did not abuse its discretion by allowing the prosecutor to
call a witness who declined to answer specific questions before
the jury. In addition, the trial court properly instructed the
jury not to consider the facts in the questions that the witness
declined to answer, and that any error not objected to in the
charge does not require reversal of defendant’s conviction.

Stewart A. Richardson v. Board of Trustees, Police & Firemen’s Retirement System

7-24-07 (A-100-05)

To establish that a disability is “a direct result of a
traumatic event” for purposes of the accidental disability
retirement statutes, a member must prove that the event is (a)
identifiable as to time and place; (b) undersigned and unexpected; and (c) caused by a circumstance external to the member (and not the result of pre-existing disease that is aggravated or accelerated by the work).

State v. Richard Wilson

07-26-07

State v. Richard Wilson
A-5618-05T1
-consolidated with-
State v. James Franklin
A-5622-05T1
-consolidated with-
State v. Regina Charles
A-5625-05T1

In these appeals by a corporate surety from bail forfeiture
orders, we hold that the bright-line distinction, for purposes
of exoneration or remittance of bail, between non-appearing
defendants found to be in custody out-of-state and in-state has
lost its significance. We thus find State v. Erickson, 154 N.J.
Super. 201 (App. Div. 1977), no longer to be a proper expression
of the law. We remand the matters for further consideration of
whether bail can be exonerated or remitted at the time the
defendant is located in out-of-state custody and a detainer is
lodged, or whether such relief must await the defendant's return
to New Jersey.

We also suggest that it is inequitable for the State, which
has resources for locating defendants that are not available to
recovery agents, to fail to notify the court and the surety when
a defendant has been found in out-of-state custody, since the
absence of such notification may affect the entry of orders of
forfeiture and the costs of recovery expended by the surety.

State v. Alex Banks

07-26-07 A-2983-05T4

Defendant was convicted by a jury and contends that the
trial court erred in removing a deliberating juror and
substituting an alternate after the initial panel declared its
inability to reach a unanimous verdict and the court delivered a
Czachor charge. We conclude that when a question about a
juror's "inability" to proceed arises after the jury has
informed the court that it cannot agree on a verdict, the trial
court should rely on the presumption that the jurors have
deliberated in accordance with the initial charge and any
additional instructions that can be given consistent with
Czachor. If the jurors cannot reach a verdict thereafter, then
mistrial should be granted.

July 23, 2007

State v. Raul D. Lopez

07-20-07 A-4469-04T4

The mandatory minimum sentence requirement in the last
paragraph of N.J.S.A. 2C:13-1c(2), for certain categories of
kidnapping, twenty-five years without parole, is not amenable to
a sentence downgrade under N.J.S.A. 2C:44-1f(2).

In the Matter of Civil Commitment of J.M.B., SVP-358-04

07-20-07 04 A-6458-03T2

J.M.B. was civilly committed under the Sexually Violent
Predator Act, N.J.S.A. 30:4-27.24 to -.38. He appealed his
initial commitment, alleging he was wrongfully committed because none of his convictions were sexually violent offenses as defined by N.J.S.A. 30:4-27.26. Held that subsection (b) is a catchall provision permitting the psychiatric experts and the court to consider the factual circumstances of the offenses in making the determination of whether the committee committed sexually violent offenses and was a sexual predator under the Act.

State v. Tammy Buczkowski

07-18-07 A-4671-05T1

We apply the Supreme Court's dictum in State v. Fisher, 180
N.J. 462, 474 (2004), that N.J.S.A. 39:5-3a requires service of
process within thirty days from the date of the alleged offense
in most instances of charged motor vehicle violations. We,
therefore, affirm the Law Division's dismissal of a charge of
reckless driving, N.J.S.A. 39:4-96, as untimely. We also apply
the doctrine requiring "[t]he government [to] 'turn square
corners' in its dealings with the public."

July 16, 2007

Brendlin v. California (US Supreme Court Rules passengers in cars have search rights)

No. 06-8120 Decided June 18, 2007

Police officers stopped a car to check its registration without reason to believe it was being operated unlawfully. One of the officers recognized petitioner Brendlin, a passenger in the car. The police verified that Brendlin was a parole violator and officers arrested Brendlin and searched him, the driver and the car finding methamphetamine paraphernalia. Brendlin was charged with possessing and manufacturing meth and moved to suppress the evidence obtained from the search of his person and the car, arguing that the officers lacked probable cause or reasonable suspicion to stop the car which made the seizure of his person unconstitutional. The unanimous opinion recognized that passengers in vehicles stopped by the police are covered by the fourth amendment and may challenge the legality of the stop if arrested.

Held: when the police make a traffic stop, a passenger in the car, like the driver, is seized for fourth amendment purposes and so may challenge the stop?s constitutionality.

State v. Daniel C. McAllister

07-13-07 A-4604-04T4

A conviction for the elevated first degree offense of
endangering the welfare of a child by the production of
pornography proscribed by N.J.S.A. 2C:24-4b(3), which requires
the State to show that the defendant was a "parent, guardian or
other person legally charged with the care or custody of the
child," cannot be based solely on evidence that the defendant
was a live-in boyfriend of the victim's mother who had a de
facto parental relationship with the victim. Only a person who
has been assigned responsibility for a child's care or custody
by a court or public agency may be found to be "legally charged"
with the child's care or custody.

State v. Joseph R. Marolda, Sr.

07-12-07 A-2400-05T1

We apply the open fields doctrine in a case involving an
aerial observation of a corn field.

Frank Caminiti v. Board of Trustees, Police and Firemen's Retirement System

07-11-07 A-4698-04T5


The decision of the Board of Trustees, Police and Firemen's
Retirement System, denying an accidental disability pension
under the prevailing tests for "traumatic event" is affirmed as
supported by substantial evidence; not arbitrary, capricious or
unreasonable; and reflecting a respectable application of
statutory and case law standards. A re-evaluation of the
"traumatic event" standard is advocated.

State v. Charles Brown

07-11-07 A-4980-05T1

Neither the doctrine of collateral estoppel nor fundamental
fairness preclude a criminal prosecution for the same events
following denial of a Final Restraining Order and dismissal of aDomestic Violence complaint in the Family Part

July 9, 2007

State v. Jayson L. Conklin

07-06-07 A-2439-06T5

After the trial judge dismissed an indictment charging
defendant with terroristic threats contrary to N.J.S.A. 2C:12-
3(a) in connection with threats to kill the victim, we
reinstated the indictment, holding that threats to kill may be
prosecuted under either N.J.S.A. 2C:12-3(a) or N.J.S.A. 2C:12-
3(b) because the elements of subsection (a) differ from the
elements of subsection (b) and the prosecutor has the discretion
to seek an indictment under either statutory provision.

July 6, 2007

Robert M. Alpert v. Sharon Harrington

06-26-07 A-5686-05T3

An applicant for a driver's license cannot obtain an
exemption from the requirement of submission of a social
security number with the application by simply showing that he
tendered an "Affidavit of Revocation and Rescission" of his
social security registration to the Social Security
Administration.

July 2, 2007

State v. Alturik Francis

6-27-07 (A-31/63-06)

Because the misuse of grand jury occurred before Francis’
indictment, the inquiry should have been whether the testimony
of the family members was relevant to the crimes under
investigation and not whether the grand jury was used for the
sole or dominant purpose of securing additional evidence against
the defendant for use in the upcoming trial. The trial court is
to determine whether the testimony of Francis’ family members is
relevant to the charges against Francis.

State v. Robert Silva

06-29-07 A-2332-06T5

On interlocutory review, we reversed a trial judge's
judicial notice, in a criminal trial, of another judge's factual
finding in a related domestic violence proceeding.

State v. David L. Franchetta, Jr.

06-28-07 A-1498-06T5

This case presents a novel issue as to whether a "rebound
effect" or a "hangover effect" from a previous ingestion of
cocaine constitutes being "under the influence" of a narcotic
drug pursuant to N.J.S.A. 39:4-50. We held that it does.
Although the cocaine ingested by defendant was not
pharmacologically active at the time of the incident, we found
that it was the proximate cause of his impaired behavior and
that he was therefore "under the influence" of a narcotic drug
for purposes of N.J.S.A. 39:4-50.

IMO Camden County Prosecutor // IMO Union County Prosecutor

06-18-07 A-6631-05T5; A-0593-06T5

The Union County and Camden County Assistant Prosecutors'
Associations appeal decisions of the Public Employment Relations
Commission denying their petitions for initiation of compulsory
interest arbitration under the Police and Fire Public Interest
Arbitration Act, N.J.S.A. 34:13A-14a to -16.6 (the Act). The
Act allows law enforcement officers engaged in performing police
services to utilize the compulsory interest arbitration
procedure of N.J.S.A. 34:13A-16 as a means of resolving
collective bargaining impasses between law-enforcement employees
and their public employers.

We held assistant prosecutors are not engaged in performing
police services within the scope of the Act because assistant
prosecutors: are employed by county prosecutors to perform legal
services in furtherance of county prosecutors' law enforcement
activities, are not vested with statutory police powers, and are
not enumerated in the non-exclusive list of employee groups
entitled to utilize compulsory interest arbitration.

State v. Joseph M. Clark

6-21-07 (A-9-06)

The chief investigator of the Court’s Advisory Committee on
Judicial Conduct must comply with a subpoena ad testificandum in
respect of the criminal trial at issue in the within matter.
Compliance with a subpoena after an indictment has issued and a
trial is poised to commence will not harm the ACJC’s
investigatory flexibility or risk unfairness to the judge
involved. More importantly, the interests of respect for, and
public confidence in, the Judiciary require public disclosure in
this instance.

Trooper Ronald Roberts, Jr. v. State of New Jersey, Division of State Police

6-21-07 (A-62-06)

When a criminal investigation of a State Trooper has ended with
a decision not to prosecute, the statutory “applicable time
limit” within which disciplinary charges against the Trooper
must be filed is forty-five days after the Superintendent of the
State Police has obtained the report of the internal
disciplinary investigation.

John Carter v. Township of Bordentown

6-20-07 (A-16-06)

The Appellate Division erred in treating the principle of
progressive discipline as a mandate of law. The offending
behavior alone supported the police officer’s removal.

Michelle Thurber v. City of Burlington

6-20-07 (A-66/67-06)

Under the circumstances presented in this appeal, the deputy
municipal court administrator’s position was not a confidential
judicial position under the disciplinary authority of the
Assignment Judge. The six-month suspension imposed by the Merit
System Board was not arbitrary, capricious or unreasonable.

State v. Porfirio Jimenez

6-18-07 (A-75-06)

In a capital cause prosecution, if a single juror finds that the
defendant has proved his or her mental retardation by a
preponderance of the evidence, the defendant is not eligible to
receive the death penalty.

June 18, 2007

State v. Rahmil O’Neal

5-22-07 (A-94/95-05)

Based on the observations made by law enforcement officers,
there was probable cause to search and arrest O’Neal. The
police officer’s question to O’Neal that elicited his response
without prior Miranda warnings violated Miranda, but was
harmless under the circumstances.

State v. Christopher Romero

5-21-07 (A-109-05)

The jury received ample instruction about the need to examine
carefully the identification made by the eyewitness, and Romero
was not denied a fair trial without a tailored cross-ethnic
identification charge. The Court uses this opportunity to
refine the out-of-court identification charge so that it will
alert jurors in all eyewitness identification cases that such
testimony requires close scrutiny.

State v. Brian Wakefield

5-7-07 (A-37-04)

Wakefield’s penalty phase proceedings were fair, the death
sentence was properly imposed, and his death sentence is not
disproportionate.

State v. Robert a. Figueroa

4-26-07 (A-38-06)

The trial court’s supplemental jury charge, which did not
include any repetition of the language from the appropriate
initial charge that jurors “not surrender your honest
convictions as to the weight or effect of the evidence solely
because of the opinion of your fellow jurors, or for the mere
purpose of returning a verdict,” and which suggested that
deliberations might continue through the end of the week and
into the weekend, had the effect of coercing the dissenting
juror or jurors into agreeing with the verdict announced shortly
after the supplemental charge and thus Figueroa is entitled to a
new trial.

State v. Abdul Webster

4-25-07 (A-37-06)

Judgment of the Appellate Division is affirmed substantially for
the reasons expressed in Judge Payne’s written opinion in the
Appellate Division. If a sentence is subject to the No Early
Release Act’s mandatory-minimum-sentence provision, making
Webster ineligible for parole during the first eighty-five
percent of his sentence, the commutation and work credits cannot
be used to reduce that eighty-five percent parole disqualifier.

State v. Jeffrey Drury

4-24-07 (A-110-05)

Carjacking is not a predicate offense that serves to elevate a
sexual assault to the first-degree offense of aggravated sexual
assault; and Drury must be resentenced on the kidnapping
convictions.

State v. Calvin Lee

4-19-07 (A-34-06)

A defendant is entitled to discovery to support racial profiling
claims and the attenuation doctrine should be considered only
after it is determined that a defendant is a victim of racial
profiling.

State v. Lawrence A. Brown

4-17-07 (A-7-06)

When there is no governmental compulsion involved, the State may cross-examine a defendant concerning his pre-arrest silence to challenge his self-defense testimony.

State v. Michael Tucker

4-17-07 (A-6-06)

The prosecutor’s comments about inconsistencies in Tucker’s
statements did not constitute an unconstitutional comment on
silence.

State v. Ahmed F. Elkwisni

4-17-07 (A-24-06)

A prosecutor can cross-examine a defendant concerning
inconsistencies between his or her post-Miranda statement to the
police and his testimony at trial.

State v. Jayson S. Williams

4-11-07 (A-12-06)

The post-crime consciousness of guilt evidence is relevant to
the mental state of Williams at the time of the shooting and is
admissible to prove the crime of reckless manslaughter.

State v. Michael Colbert

4-4-07 (A-108-05)

The procedural methodology recognized in State v. W.A. was
intended for purely prospective application. The Court is
satisfied that defendant received his constitutional entitlement
as he was fully present during voir dire and no error occurred.

State v. Steven R. Fortin

3-28-07 (A-112-05)

The State may introduce material details of the sexual assault
committed by Fortin in Maine to present the bite-mark evidence
of this crime in context, subject to specific jury instructions
explaining the limited use of such evidence. The FBI’s Violent
Criminal Apprehension Program database is not admissible to
prove a signature crime.

State v. Randi Fleischman

3-19-07 (A-4-06)

When a defendant provides to officials in connection with a
fraudulent claim a document or oral narrative that contains
material facts relating to the claim, each such document or
narration is a “statement” equating to an “act” of insurance
fraud. The Court rejects the assertion that every discrete fact
within a narrative about a single claim amounts to an “act” of
insurance fraud.

State of New Jersey v. Pascal DuBois

3-8-07 (A-102-05)

The record amply demonstrates that defendant was sufficiently
informed to knowingly and intelligently waive his right to
counsel. Our careful review of the record satisfies us that the
trial court did not abuse its discretion in finding that
defendant knowingly and intelligently waived his right to
counsel.

State of New Jersey v. Brian W. Samuels

1-31-07 (A-88-05)

The State submitted sufficient evidence from which a jury could conclude beyond a reasonable doubt that Samuels conspired to and did commit an armed robbery. Nonetheless, the convictions for conspiracy and armed robbery must be reversed and retried in view of the trial court’s failure to charge the lesser-included offense of attempted robbery and the court’s improper charge on the elements of conspiracy and accomplice liability.

State v. John O’Hagen

1-24-07 (A-70-05)

The New Jersey DNA Database and Databank Act of N.J.S.A. 53:1-
20.17-20.28, as amended, does not violate the rights guaranteed
by the Fourth and Fourteenth Amendments to the United States
Constitution and Article I, Paragraphs 1 and 7 of the New Jersey
Constitution.

A.A., by his parent and guardian B.A., v. Attorney General of the State of New Jersey et als.

1-24-07 (A-105-05)

DNA test results lawfully obtained pursuant to the New Jersey
DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17-
20.28, as amended, may be used to solve crimes committed prior
to the taking of the DNA test.

State v. Vincent Dispoto

1-18-07 (A-103-05)

Because there was insufficient evidence to support the issuance
of the underlying domestic violence search warrant, the criminal
search warrant was invalid as fruit of the poisonous tree.
While this holding renders moot the Appellate Division’s finding
that failure to re-administer Miranda warnings at the time of
arrest required suppression of Dispoto’s post-arrest
incriminating statements, the Court adds in respect of the issue
of the Miranda warnings only that no bright line or per se rule
governs whether re-administration is required following a precustodial Miranda warning.

State v. Breane Starr Blakney

12-20-06 (A-117-05)

We agree with Judge Weissbard substantially for the reasons
expressed in his dissenting opinion. We therefore reverse
defendant’s murder conviction and remand for a new trial on that
charge. In addition, we underscore the importance of wellcrafted
limiting instructions when the State introduces othercrime
evidence pursuant to N.J.R.E. 404(b), and remind
prosecutors of their obligation to keep their summation remarks
within acceptable bounds of advocacy.

State v. Porfirio Jimenez

10-24-06 (A-50-05)

The absence of mental retardation is not akin to a capital
trigger, and Jimenez has the burden to prove by a preponderance
of the evidence that he is retarded.

In the Matter of Registrant T.T.: Application for Judicial Review of Notification and Tier

10-3-06 (A-58-05)

T.T.’s lack of sexual motivation does not alter the fact that he
committed the predicate offense of aggravated sexual assault and
Megan’s Law therefore applies. The intra-familial nature of
T.T.’s offense, however, is a circumstance that warrants the
less stringent community notification of a Tier One
classification.

State v. Keith R. Domicz

9-20-06 (A-42-05)

Under the circumstances, the warrantless thermal scan and
seizure of electricity records did not constitute prior unlawful
conduct that could tainted the later search. Grand jury
subpoena procedures adequately protect any privacy interest in
utility records. Law enforcement officers are not required to
have a reasonable and articulable suspicion that criminal
activity is occurring within a home before seeking consent to
search the residence.