March 26, 2009

03-20-09 Ortiz v. New Jersey Department of Corrections A-2394-07T1

03-20-09 Edwin Ortiz v. New Jersey Department of Corrections
A-2394-07T1

Edwin Ortiz is an inmate currently incarcerated at Northern
State Prison who has been identified as a member of a Security
Threat Group, the Latin Kings. See N.J.A.C. 10A:5-1.3; N.J.A.C.
10A:5-6.5. Denying membership, Ortiz invoked the Department of
Corrections' inmate-remedy system, N.J.A.C. 10A:1-4.1 to -4.9.
We discuss the Department's regulations governing STGs and the
inmate-remedy system. Because the Department did not respond in
accordance with its regulations, and Ortiz did not file an
administrative appeal, we dismiss the appeal for failure to
exhaust administrative remedies and direct the Department to
consider an administrative appeal.

March 17, 2009

3-17-09 State v. Kuchera, Sr. (A-115-07)

3-17-09 State v. Paul J. Kuchera, Sr. (A-115-07)

Absent proper reasons, witnesses in criminal cases presumptively
should be allowed to testify without restraints. Regardless of
the identity of the proponent of the witness, trial courts are
obligated to determine whether a witness is a sufficient
security risk in order to justify restraints and, if so
determined, restraints are appropriate. Further, whether a
prosecution witness testifies in prison garb likely does not
affect whether the trial as a whole is fair; nevertheless, in
exercise of its supervisory powers, the Court find that, as a
matter of course and unless otherwise affirmatively permitted by
the trial court in the exercise of its discretion, witnesses in
criminal cases, both for the prosecution and defense, should not
testify in prison garb.

3-16-09 State v. Baker, Sr. (A-17-08)

3-16-09 State v. Forrest M. Baker, Sr. (A-17-08)

The Interstate Agreement on Detainers does not apply when the
State has not lodged a detainer in the sending state.

3-12-09 State v. Echols (A-12-08)

3-12-09 State of New Jersey v. Terrence Echols (A-12-08)

This case does not meet the standard of ineffective assistance
of counsel necessary to warrant a new trial. The comments by
the prosecutor did not deprive defendant of a fair trial and the
failure of trial counsel to object to the comments or the
failure of appellate counsel to raise that issue on appeal would
not have resulted in a different outcome. In addition, although
it would have been appropriate for the trial court to have given
the requested alibi charge, the failure to do so was clearly
harmless error, and even if appellate counsel had raised that
issue on appeal the result would not have been different.

3-11-09 State v. Cassady (A-94-07)

3-11-09 State of New Jersey v. Marcus Cassady (A-94-07)

There was no rational basis for a jury instruction on theft as a
lesser-included offense to robbery where, in committing the
crime, defendant threatened a bank teller by demanding money and
then, when the money wasn’t produced, vaulted a seven-foot
partition into the teller’s area, causing the teller to flea for
her life. In addition, there was no reversible error in the
trial court’s consideration and weighing of aggravating and
mitigating factors.

3-17-09 State v. Kuchera, Sr. (A-115-07)

3-17-09 State v. Paul J. Kuchera, Sr. (A-115-07)

Absent proper reasons, witnesses in criminal cases presumptively
should be allowed to testify without restraints. Regardless of
the identity of the proponent of the witness, trial courts are
obligated to determine whether a witness is a sufficient
security risk in order to justify restraints and, if so
determined, restraints are appropriate. Further, whether a
prosecution witness testifies in prison garb likely does not
affect whether the trial as a whole is fair; nevertheless, in
exercise of its supervisory powers, the Court find that, as a
matter of course and unless otherwise affirmatively permitted by
the trial court in the exercise of its discretion, witnesses in
criminal cases, both for the prosecution and defense, should not
testify in prison garb.

3-16-09 State v. Baker, Sr. (A-17-08)

3-16-09 State v. Forrest M. Baker, Sr. (A-17-08)

The Interstate Agreement on Detainers does not apply when the
State has not lodged a detainer in the sending state.

3-12-09 State v. Echols (A-12-08

3-12-09 State of New Jersey v. Terrence Echols (A-12-08)

This case does not meet the standard of ineffective assistance
of counsel necessary to warrant a new trial. The comments by
the prosecutor did not deprive defendant of a fair trial and the
failure of trial counsel to object to the comments or the
failure of appellate counsel to raise that issue on appeal would
not have resulted in a different outcome. In addition, although
it would have been appropriate for the trial court to have given
the requested alibi charge, the failure to do so was clearly
harmless error, and even if appellate counsel had raised tissue on appeal the result would not have been different.

3-11-09 State v. Cassady (A-94-07)

3-11-09 State of New Jersey v. Marcus Cassady (A-94-07)

There was no rational basis for a jury instruction on theft as a
lesser-included offense to robbery where, in committing the
crime, defendant threatened a bank teller by demanding money and
then, when the money wasn’t produced, vaulted a seven-foot
partition into the teller’s area, causing the teller to flea for
her life. In addition, there was no reversible error in the
trial court’s consideration and weighing of aggravating and
mitigating factors.

March 11, 2009

3-10-09 State v. Vallejo (A-3-08)

3-10-09 State of New Jersey v. Diego Vallejo (A-3-08)

This brief trial was poisoned by the recurring admission of
evidence of other crimes and wrongdoings by defendant, Diego
Vallejo, and by reference to the domestic violence restraining
order against him. The trial judge’s curative instruction was
insufficient and, as a result, Vallejo was denied a fair trial.

March 6, 2009

03-04-09 State v. Chepilko A-5473-06T4/A-0084-07T4

03-04-09 State v. Sergei Chepilko
A-5473-06T4/A-0084-07T4

The taking of photographs of persons walking on the
Atlantic City Boardwalk and then attempting to sell the
photographs to the subjects does not constitute expressive
conduct entitled to First Amendment protection that insulates a
person engaged in this activity from prosecution for a violation
of municipal ordinances prohibiting the sale of merchandise on the Boardwalk.

03-03-09 State of New Jersey v. Atkins A-4734-05T4

03-03-09 State of New Jersey v. Sidney Atkins
A-4734-05T4

Following the established rule in State v. Mingo, 77 N.J.
576, 586-87 (1978), we find reversible error in allowing the
prosecution to invade the privilege with regard to the defense-
retained consultant. Accordingly "the report and testimony of a
defense-retained expert consultant who will not testify as a
defense witness and whose report will not be utilized as
evidence are not available to the State." Ibid. The
justification that defendant waived the privilege by operation
of N.J.R.E. 607 in introducing the victim's recantation fails
because other evidence was available to the prosecution to rebut
the charge of recent fabrication, improper influence, or motive which would not have been unduly prejudicial to defendant.

02-17-09 State v. Popovich A-2862-07T4

02-17-09 State v. Timothy Popovich
A-2862-07T4

Defendant's conviction is reversed; the trial court erred
when it ruled that defendant's expert was subject to a
sequestration order. State v. Lanzel, 253 N.J. Super. 168 (Law
Div. 1991) is distinguished.

02-11-09 State v. Coven A-5846-07T4

02-11-09 State v. Lawrence S. Coven
A-5846-07T4

Misapplication of entrusted property, N.J.S.A. 2C:21-15, is
not a continuing course of conduct offense. The offense is
complete the moment the recipient clearly and objectively
misapplies the entrusted property, thus putting it at
substantial risk of loss or detriment of the owner or person for
whose benefit it was entrusted. The indictment, which was
returned more than five years after that date, was properly
dismissed for failure to comply with the statute of limitations.

02-04-09 State of New Jersey v. Norman A-5662-06T4

02-04-09 State of New Jersey v. William Norman
A-5662-06T4

We reverse the trial court's denial of defendant's petition
for post-conviction relief (PCR), and remand for a plenary
hearing. In 1998, defendant pled guilty pursuant to a
negotiated agreement to first-degree robbery, subject to the No
Early Release Act (NERA). The version of NERA in effect at the
time required that defendant commit a "violent crime," as
defined in the statute. Defendant thus stipulated that he
inflicted "serious bodily injury," as defined in N.J.S.A. 2C:11-
1(b), on the victim of the robbery.

We hold that in order for this stipulation to have a
preclusive effect on the question of whether defendant inflicted
serious bodily injury, the stipulation must be supported by
competent medical evidence. Defendant's mere lay opinion is
insufficient as a matter of law. Defendant also presented
sufficient grounds to relax the five-year limitation period in
Rule 3:22-12. Under these circumstances, defendant established
a prima facie case of ineffective assistance of counsel, thus
entitling him to a plenary hearing.

March 5, 2009

2-25-09 State v. Pena-Flores, et al. (A-129-06) State v. Fuller (A-15-07)

2-25-09 State v. Juan Pena-Flores, et al. (A-129-06)
State v. Charles Fuller (A-15-07)

The Supreme Court affirms its longstanding precedent that
permits an automobile search without a warrant only in cases in
which the police have both probable cause to believe that the
vehicle contains evidence and exigent circumstances that would
justify dispensing with the warrant requirement. Whether
exigent circumstances exist is to be decided on a case-by-case
basis with the focus on police safety and the preservation of
evidence. The Court also determines that a warrant obtained by
telephonic or electronic means is the equivalent of an in-perwarrant and does not require proof of exigent circumstances.

State of New Jersey V. A.O.

State of New Jersey V. A.O.
(A-107-07)

Polygraph evidence that is based on a stipulation entered into
without counsel is inadmissible. A defendant may impeach the
credibility of a victim-witness about false allegations made
after the underlying allegations were made against the
defendant.