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.