March 30, 2008

Glenn Sellers v. Board of Trustees of the Police and Firemen's Retirement System

03-19-08 A-1170-06T1

Where a municipality hired a firefighter under the mistaken
belief that deductions for his service as a police officer and
his service in the military would enable him to meet the
statutory age requirements for firefighters and where the
firefighter, acting in good faith and reasonably, left other
employment to accept the position, the Board of Trustees of the
New Jersey Police and Firemen's Retirement System has the
authority under certain circumstances to apply equitable
principles and provide a remedy.
The denial of plaintiff's enrollment in the New Jersey
Police and Firemen's Retirement System is reversed and remanded
to the Board of Trustees for a determination of whether
plaintiff may be enrolled under equitable principles.

State v. Douglas Noble

03-13-08 A-3394-05T4

The State may, consistent with a defendant's right to
remain silent, cross-examine him on the late filing of his alibi
notice when such cross-examination is designed to highlight
inconsistencies between the alibi notice and defendant's
testimony a mere two days later. We conclude that here, where
the cross-examination on the timing of the alibi notice served
to demonstrate the unlikelihood that defendant's recollection of
the facts supporting his alibi defense would change so
significantly in a two-day period, the State's cross-examination
did not constitute a prohibited evisceration of defendant's
right to remain silent. Instead, such cross-examination
constituted a permitted "litigational" use of the late
furnishing of an alibi notice.
03-12-08 State of New Jersey v. Hipolito Ruiz
A-5529-06T4
When a jury acquits a defendant of the sole charge in the
indictment, retrial for a lesser-included offense on which the
jury was deadlocked is not constitutionally barred.

State v. Cadree B. Matthews

03-10-08 A-6040-05T4

An anonymous caller stated that a person in a burgundy
Durango with temporary license plates was flashing a gun at a
certain location late at night. Police proceeded to the scene,
located the vehicle and performed a pat-down search of its three
occupants. The search revealed no weapons. The police then
secured the occupants away from the vehicle and searched the
passenger compartment, finding a handgun beneath the front
passenger seat. While conducting the search, a fourth person,
later identified as the defendant, attempted to get to the
vehicle. When asked to leave the scene, he refused. Defendant
was then arrested for disorderly conduct and resisting arrest.
When he was secured in the back of a patrol car, defendant
confessed that the handgun police found in the vehicle belonged
to him. After the denial of a motion to suppress the handgun on
the basis of an illegal search, defendant pled guilty to
unlawful possession of a weapon, resisting arrest, and unlawful
possession of a handgun by certain persons not to have weapons.
We reversed the convictions as to the unlawful possession
of a weapon and certain persons, based upon the illegality of
the search. The search was not justified under Terry v. Ohio
because the anonymous tip, standing alone, did not provide an
independent basis for the stop, frisk of the occupants, or
search of the vehicle.

State v. J.A.

03-06-07 A-2554-05T4

In this appeal from the denial of a post-conviction relief
petition, we hold that the Supreme Court's decision in State v.
P.H., 178 N.J. 378 (2004), that a jury may consider the timing
of a victim's disclosure of sexual abuse in assessing
credibility, and therefore disapproving the contrary holding in
State v. Bethune, 121 N.J. 137 (1990), is not to be given
complete retroactivity to encompass defendant's case on
collateral review, but is limited to pipeline retroactivity
only.

State v. Yusef Allen

03-04-08 A-4685-05T4

On appeal from the denial of defendant's petition for postconviction
relief, the Appellate Division remands for an
evidentiary hearing to determine why defendant declined an offer
for mistrial made by the judge during trial (counsel's statement
during trial that he wasn't doing it for "economic" reasons did
not suffice) and for an evaluation of the credibility of an
individual who gave a post-judgment affidavit exculpating
defendant.

State v. Terrence Echols

02-26-08 A-2377-05T4

In this appeal, the court reversed the denial of
defendant's petition for post-conviction relief, finding
defendant was denied the effective assistance counsel because:
(1) trial counsel failed to fully elicit testimony regarding
defendant's alleged alibi; (2) appellate counsel failed to
pursue on direct appeal the trial judge's refusal to give the
jury an alibi instruction; (3) trial counsel failed to object
and appellate counsel failed to argue on appeal that the
prosecutor's argument in his opening statement -- that the
jurors were safe from defendant and others in the courtroom only
because of the presence of sheriff's officers -- was prejudicial
to his right to a fair trial; and (4) the confluence of these
omissions, in the context of other circumstances, such as the
testimony of witnesses in handcuffs and prison garb, generated a
reasonable doubt about the reliability of the outcome.

State v. Jane H. Chun

3-17-08 (A-96-06)

The Court adopts, as modified, the Special Master’s reports and
recommendations. Subject to certain conditions, the Court holds
that the Alcotest is scientifically reliable and that its
results are admissible in drunk driving prosecutions. The Court
contemporaneously issues an Order vacating its January 10, 2006,
stay of drunk driving prosecutions, appeals, and sentencing,
which shall proceed in accordance with the directives set forth
therein.

Patterson v. Board of Trustees, State Police

Moore v. Board of Trustees, State Police Reitrement
System (A-101-05)
Guadagno v. Board of Trustees, Police and Firemen’s
Retirement System (A-123-05)

A member of the State Police Retirement System or the Police and
Firemen’s Retirement System who suffers from a permanent and
total mental disability as a result of a mental stressor,
without any physical impact, is entitled to accidental
disability retirement if the disability was the direct result of
a mental stressor that was identifiable as to time and place,
that was undesigned and unexpected, that was external to the
member (not the result of a pre-existing disease aggravated or
accelerated by the work), that occurred during and as a result
of the member’s duties, and that was not the result of the
member’s willful negligence. Additionally, the disability must
result from direct personal experience or a terrifying or
horror-inducing event that involved actual or threatened death
or serious injury, or a similarly serious threat to the physical
integrity of the member or another person.

State v. Andre Johnson

2-26-08 (A-81-06)

Defendant has standing under state law to challenge the
warrantless search of the duffel bag in the home in which he was
present, and the fruits of the search are suppressed for failure
to comply with the warrant requirements of Article I, Paragraph
7 of the New Jersey Constitution.

State v. Charles A. Watkins, III

2-21-08 (A-118-06)

Individuals acting alone in furtherance of their own criminal
interests who commit a series of offenses such as thefts or
forgeries are not “part of a continuing business or enterprise”
because they are not part of a larger whole and are not acting
in concert with others.

State v. Sulaiman A. Sloane

2-11-08 (A-40-06)

During a motor vehicle stop, the passenger, like the driver, is
seized under the federal and state constitutions. Police do not
need a reasonable suspicion before they may access the NCIC
database and, because accessing the NCIC database was within the
scope of the traffic stop and did not unreasonably prolong the
stop, there was no basis to suppress the evidence found.

State v. David L. Wilder

1-31-08 (A-87-06)

Based on the State’s evidence and giving the State the benefit
of all favorable inferences, a jury reasonably could have
convicted defendant of serious-bodily-injury murder; thus, the
trial court did not err by sending the murder charge to the
jury. The Court rejects continued use of the Christener rule;
overcharging errors must be reviewed under the “unjust result”
standard established in Rule 2:10-2.

State v. William J. Allegro

1-29-08 (A-119-06)

Allegro’s ineffective assistance of counsel claims arising from
defense counsel’s failure to investigate potential witnesses and
to call those witnesses do not satisfy the two-pronged
Strickland/Fritz standard. His claims in respect of counsel’s
ineffectiveness in the plea discussions and negotiations
requires a remand for development of a more comprehensive record
and the PCR court’s conclusions based on that record.
1-28-08 State v. George Jenewicz (A-78-06)
The cumulative impact of the trial court’s preclusion of
testimony from two defense witnesses and the prosecution’s
improper cross-examination of the defense expert and
disparagement of the defense expert during summation prejudiced
the fairness of defendant’s trial and cast doubt on the
propriety of the jury’s verdict, warranting a new trial.

March 1, 2008

Middlesex County Bar Association 3rd Annual Awards Dinner

Middlesex County Bar Association 3rd Annual Awards Dinner
On March 19, 2008, the Middlesex County Bar Association will hold its third annual awards dinner at Sunny Palace Restaurant on Route 18 South in East Brunswick. Awards will be given to bar members in the following areas: Pro Bono; Non-Litigation; Civil Trial Practice; Criminal Trial Practice; and Municipal Court Practice.

The guest speaker will be Hon. Travis L. Francis, AJSC.
The MCBA will pay tribute to these bar members for their significant contributions to their respective practice areas.
The following awards will be given:

-Pro Bono Attorney-of-the Year Henry Gurshman
-Civil Trial Practitioner-of-the-Year John Gorman
-Criminal Trial Attorney-of-the-Year Jim Nolan & Nicole Albert
-Municipal Court Practitioner-of-the-Year Kenneth Vercammen
-Young Lawyer of the Year Kimberly Yonta Aronow
-Transactional Attorney of the Year Michael Schaff

The purpose of the Awards is to recognize attorneys practicing in Middlesex County and adjacent municipalities who devote a significant portion of their law practice to their respective practice areas and exhibit one or more of the following:

- Leadership in the potential candidate’s field of practice;
- Significant, tangible contributions to the Bar, such as participation in educational panels, Bar committees, etc, pertaining to non-litigation issues;
- Contributions to the community and/or charitable endeavors;
- A record promoting participation and involvement in the MCBA and collegiality within the Association; and
- A reputation for personal and professional integrity.

The evening will commence with a cocktail hour (cash bar) at 6:00 p.m. and dinner will be served at 7:00 p.m. The cost to attend is $35 for MCBA Young Lawyers, $40 for MCBA Members and $45 for all others, in advance.
For additional information, contact the Bar Office at (732) 828-3433, ext. 102.
More details at http://www.mcbalaw.com/cde.cfm?event=186648

Sunny Palace
1069 Route 18 South
East Brunswick, NJ 08816