July 27, 2009

07-27-09 STATE V. LAKE A-3988-07T4

07-27-09 STATE OF NEW JERSEY V. JOHN LAKE
A-3988-07T4
As with official misconduct, N.J.S.A. 2C:30-2a, where a
non-pecuniary benefit is involved, bribery, N.J.S.A. 2C:27-2a,
is a second-degree crime, and the State has no burden to prove
that the benefit has a value of more than $200.
Personal characteristics of a defendant may be considered
as applicable to a downgraded sentence pursuant to the interest
of justice prong of N.J.S.A. 2C:44-1f(2) only if they relate to
the offense itself and give fuller context to the offense
circumstances.
We affirmed defendant's second-degree convictions for
misconduct in office and bribery, but reversed his sentence in
the third-degree range.

Richard Sadowski
Assistant Editor

07-22-09 STATE V. HANNIGAN A-0323-06T4

07-22-09 STATE OF NEW JERSEY V. MICHAEL P. HANNIGAN
A-0323-06T4
We hold that the decision to impose consecutive
indeterminate sentences is governed by the criteria relevant to
rehabilitation identified in State v. Carroll, 66 N.J. 558, 561-
62 (1975), not the criteria relevant to deserved punishment
developed in State v. Yarbough, 100 N.J. 627 (1985).

Richard Sadowski
Assistant Editor

7-20-09 STATE IN THE INTEREST OF R.M. A-0105-07T4

07-20-09 STATE OF NEW JERSEY IN THE INTEREST OF R.M.
A-0105-07T4
A juvenile who is found on the streets in violation of a
municipal curfew ordinance and is unable to produce any
identification may be arrested and detained until identification
can be produced and the juvenile released to the custody of his
or her parents. A juvenile who is arrested for a curfew
violation may be searched incident to that arrest before being
transported to police headquarters.

Richard Sadowski
Assistant Editor

7-27-09 State v. Nunez-Valdez (A-46-08)

7-27-09 State v. Jose Nunez-Valdez (A-46-08)
There was sufficient credible evidence for the trial court to
conclude that defendant was misinformed by counsel and that he
would not have pled guilty if he had received accurate
information that his plea would result in deportation.

Richard Sadowski
Assistant Editor

7-22-09 State v. Robinson (A-62-08)

7-22-09 State v. James Robinson (A-62-08)
Defendant’s conviction and sentence are reinstated because, in
the circumstances of this case, the delay of twenty- to thirtyseconds
between the police officers knocking and announcing
their purpose to execute a search warrant and their forcible
entry into the apartment was reasonable, and defendant’s
challenge concerning the officers’ use of a “flash bang” device
was raised for the first time on appeal and was not appropriate
for consideration.

Richard Sadowski
Assistant Editor

7-21-09 State v. Marshall (A-33-08)

7-21-09 State v. Quinn Marshall (A-33-08)
The search warrant was issued in violation of the constitutional
requirement to describe the place to be searched with
particularity. Because police were authorized to determine if
the conditions in the warrant were satisfied, the role of the
neutral, detached magistrate was delegated to the police. The
failure to comply with the particularity requirement and the
failure to have a neutral and detached magistrate determine
whether the conditions in the warrant were satisfied are
constitutional violations, not technical insufficiencies
justifying overlooking the deficiencies in the warrant.

Richard Sadowski
Assistant Editor

July 15, 2009

07-13-09 STATE V. FINESMITH A-4543-07T4

07-13-09 STATE V. FINESMITH A-4543-07T4
The State sought a communications data warrant for a oneyear
period to establish a pattern of use in anticipation of the
defense that another member of the household was responsible for
downloading child pornography. The trial judge granted the CDW
but restricted it to the two-week period prior to the date of
the last download of the prohibited matter.
Held: No reasons were given by the court for the two-week
restriction other than the conclusion that the one-year period
sought by the State was "excessive." We reversed, finding that
the court's decision was arbitrary and unnecessarily restrictive
of the State's right of investigation.

Richard Sadowski
Assistant Editor

07-09-09 STATE V. WESSELLS A-1545-08T4

07-09-09 STATE OF NEW JERSEY V. JOHN WESSELLS
A-1545-08T4
In this appeal we hold that, pursuant to both the federal
and New Jersey Constitutions, a person who has asserted the
right to counsel during a police custodial interrogation and is
subsequently released may be interrogated again if the break in
custody afforded a reasonable opportunity to consult an
attorney.

Richard Sadowski
Assistant Editor

7-14-09 State v. Hill (A-5-08)

7-14-09 State v. Alonzo B. Hill (A-5-08)
Providing a Clawans charge in the circumstances of this case
constituted reversible error. The charge, which favored the
State on an element of its required proofs, had the inescapable
effect of undermining Alonzo Hill’s entitlement to benefit from
the presumption of innocence and to demand that the State bear
the burden of proving, beyond a reasonable doubt, all elements
of the charges against him.

Richard Sadowski
Assistant Editor

7-13-09 State v. Rolon a/k/a Rodriguez (A-45-08)

7-13-09 State v. Maribel Rolon a/k/a Rodriguez (A-45-08)
For first-degree robbery, if a weapon possessed by a defendant
was not a firearm, the defendant cannot be considered to have
been armed with a deadly weapon unless he or she had immediate
access to the potential weapon and an intent to use it in a way
that was capable of producing death or serious bodily injury.
Because the judge’s jury instruction in this case eliminated the
issue of “intent,” a proper evaluation of the evidence was
precluded and the first-degree robbery conviction must be
reversed.

Richard Sadowski
Assistant Editor

7-8-09 State v. Fajardo-Santos (A-82-08)

7-8-09 State v. Manuel A. Fajardo-Santos (A-82-08)
Federal authorities exercised their discretion in lodging a
detainer against defendant. That increased the risk that he
would not appear at trial. The trial judge then properly
responded to a change in circumstances by increasing defendant’s
bail.

Richard Sadowski
Assistant Editor

July 7, 2009

7-7-09 State v. Bogan (A-7-08)

7-7-09 State v. Anthony Bogan (A-7-08)
The police officer’s warrantless entry into an apartment for the
purpose of taking the telephone from an unattended child to
speak with his parent was justified by the community caretaking
doctrine because the officer had a duty to identify a
responsible adult for the child and to ensure his safety.
Because the officer was lawfully on the premises when he
observed in plain view defendant, who fit the suspect’s
description, he had a right to direct his fellow officers to
question defendant. Defendant’s Mirandized statements in
response to questioning were properly admitted at trial.

Richard Sadowski
Assistant Editor

7-2-09 State v. Osorio (A-59-08)

7-2-09 State of New Jersey v. Oscar Osorio (A-59-08)
The Court slightly refines the methodology to be applied in
gauging bias claims in the jury selection process, reaffirming
that a three-step process must be employed whenever it has been
asserted that a party exercised peremptory challenges based on
race or ethnicity. Step one requires that, as a threshold
matter, a party contesting the exercise of the challenge must
make a prima facie showing that the peremptory challenge was
exercised on the basis of race or ethnicity, which can be
established through sufficient proofs to raise an inference of
discrimination. If that burden is met, step two is triggered,
and the burden shifts to the party exercising the peremptory
challenge to prove a race- or ethnicity-neutral basis supporting
the peremptory challenge. The trial court must ascertain
whether the explanations are pretext or present a reasoned,
neutral basis for the challenge. Once that analysis is
completed, the third step is triggered, requiring the trial
court to weigh the proofs adduced in step one against those
presented in step two and determine whether, by a preponderance
of the evidence, the party contesting the exercise of the
peremptory challenge has proven that the challenge was exercised
on unconstitutionally impermissible grounds of presumed group
bias.

Richard Sadowski
Assistant Editor

07-02-09 STATE V. O'DONNELL A-0858-06T4

07-02-09 STATE V. ALICE O'DONNELL
A-0858-06T4
Evidence observed in plain view during a police entry into
a residence to provide emergency aid may be seized without a
warrant even though there is a short delay between the emergency
aid entry and the seizure of evidence by other police officers
responsible for processing the crime scene.

Richard Sadowski
Assistant Editor

07-01-09 STATE V. MARQUEZ A-5044-07T4

07-01-09 STATE OF NEW JERSEY V. GERMAN MARQUEZ
A-5044-07T4
The police have no constitutional obligation to translate
into Spanish the standard statement under the breath-test
refusal statute, N.J.S.A. 39:4-50.2(e), to a licensed New Jersey
driver arrested for drunk driving who does not understand
English. We reaffirm the Law Division's holding in State v.
Nunez, 139 N.J. Super. 28, 32-33 (Law Div. 1976), that no such
translation is required. However, we recommend that, as an
administrative matter, the Motor Vehicle Commission
prospectively consider having the standard statement translated
into Spanish and perhaps other prevalent foreign languages.

Richard Sadowski
Assistant Editor

July 5, 2009

Arrest and Search by police based invalid arrest warrant does not suppress drugs & gun found Herring v United States 129 S. Ct. 695 (2009)

Arrest and Search by police based invalid arrest warrant does not suppress drugs & gun found
Herring v United States 129 S. Ct. 695 (2009)
When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.

Passenger Pat down during traffic stop permitted if belief gang member is armed and dangerous Arizona v Johnson 172 L. Ed. 2d 694 (2009)

Passenger Pat down during traffic stop permitted if belief gang member is armed and dangerous Arizona v Johnson 172 L. Ed. 2d 694 (2009)
While patrolling near a Tucson neighborhood associated with the Crips gang, police officers serving on Arizona’s gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back-seat passenger, whose behavior and clothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him get out of the car in order to question him further, out of the hearing of the front-seat passenger, about his gang affiliation. Because she suspected that he was armed, she patted him down for safety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor
Held: Officer Trevizo’s patdown of Johnson did not violate the Fourth Amendment ’s prohibition on unreasonable searches and seizures.

Police cannot search car passenger compartment if occupant already arrested. Arizona v. Gant 129 S. Ct. 1710 (2009)

Police cannot search car passenger compartment if occupant already arrested. Arizona v. Gant 129 S. Ct. 1710 (2009)

Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that an arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. The Arizona Supreme Court's reversal of Defendant's drug conviction is affirmed.

The admission of the Drug lab certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him MELENDEZ-DIAZ v. MASS

The admission of the Drug lab certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him MELENDEZ-DIAZ v. MASSACHUSETTS __ S. Ct. ____

No. 07–591.  Decided June 25, 2009

At petitioner’s state-court drug trial, the prosecution introduced certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity. As required by Massachusetts law, the certificates were sworn to before a notary public and were submitted as prima facie evidence of what they asserted. Petitioner objected, asserting that Crawford v. Washington, 541 U. S. 36 , required the analysts to testify in person. The trial court disagreed, the certificates were admitted, and petitioner was convicted. The Massachusetts Appeals Court affirmed, rejecting petitioner’s claim that the certificates’ admission violated the Sixth Amendment .
Held: The admission of the Drug lab certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him.
(a) Under Crawford, a witness’s testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. 541 U. S., at 54. The certificates here are affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause, id., at 51. They asserted that the substance found in petitioner’s possession was, as the prosecution claimed, cocaine of a certain weight—the precise testimony the analysts would be expected to provide if called at trial. Not only were the certificates made, as Crawford required for testimonial statements, “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” id., at 52, but under the relevant Massachusetts law their sole purpose was to provide prima facie evidence of the substance’s composition, quality, and net weight. Petitioner was entitled to “be confronted with” the persons giving this testimony at trial. Id., at 54.
(b) The arguments advanced to avoid this rather straightforward application of Crawford are rejected. Respondent’s claim that the analysts are not subject to confrontation because they are not “accusatory” witnesses finds no support in the Sixth Amendment ’s text or in this Court’s case law. The affiants’ testimonial statements were not “nearly contemporaneous” with their observations, nor, if they had been, would that fact alter the statements’ testimonial character. There is no support for the proposition that witnesses who testify regarding facts other than those observed at the crime scene are exempt from confrontation. The absence of interrogation is irrelevant; a witness who volunteers his testimony is no less a witness for Sixth Amendment purposes. The affidavits do not qualify as traditional official or business records. The argument that the analysts should not be subject to confrontation because their statements result from neutral scientific testing is little more than an invitation to return to the since-overruled decision in Ohio v. Roberts, 448 U. S. 56 , which held that evidence with “particularized guarantees of trustworthiness” was admissible without confrontation. Petitioner’s power to subpoena the analysts is no substitute for the right of confrontation. Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution’s task burdensome. In any event, the practice in many States already accords with today’s decision, and the serious disruption predicted by respondent and the dissent has not materialized

Police can now question defendant even if counsel assigned

Police can now question defendant even if counsel assigned. Michigan v. Jackson is overruled, which had forbid police from initiating interrogation of a criminal defendant who has invoked his right to counsel at arraignment. Montejo v Jackson __ S. Ct. ____ Decided May 26, 2009 Docket No. 07–1529