STATE OF NEW JERSEY VS. RAMON A. RODRIGUEZ-ALEJO A-0815-09T3

STATE OF NEW JERSEY VS. RAMON A. RODRIGUEZ-ALEJO A-0815-09T3

We afforded State v. Marquez, 202 N.J. 485 (2010) pipeline retroactivity and reversed a breathalyzer refusal conviction because the Spanish-speaking defendant was not read the standard form information in Spanish. Although not raised on appeal, we also noted that the conviction was flawed pursuant to our recent holding in State v. Schmidt, 414 N.J. Super. 194 (App. Div. 2010), because he was not read the second portion of the standard form when he did not produce a sufficient breath sample. 03-25-11

UNION COUNTY MUNICIPAL PROSECUTORS 2011

COURT PROSECUTOR

Berkeley Heights Michael Mitzner

Clark JonHenry Barr

Cranford Norman Albert

Elizabeth Patricia Mack

Norma Murgado

Asther E. Thomas

Lawrence Centanni

Anabela DacruzMelo

Christopher Howard

Vito Mazza

Tangerla MitchellThomas

Anette Quijano

Fanwood Daniel Antonelli

Garwood Robert Donovan

Hillside Moshood Muftau

Josephine Gonzalez

Kenilworth JonHenry Barr

Linden Nick Scutari

Mountainside Frank Sahaj

New Providence Robert Thelander

Plainfield Robert Wilson

Tangerla Mitchell Thomas

Sheila Ellington

Rahway Richard Fazzari

Roselle Anthony C. Mack

Kevin Harris

Roselle Park Rich Huxford

Scotch Plains Robert Pansulla

Springfield Howard Egenberg ()

Summit Michael Mitzner

Union Michael Wittenberg ()

Drew Bauman

Dawn Donohue

Westfield Anthony Prieto

Winfield Josephine Gonzales

rev. //

Union County Municipal Prosecutor List by Ken Vercammen, Past Chair Municipal Court Practice Section of NJ State Bar Association

Please fax any revisions to Kenneth Vercammen, Esq. at .

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SOMERSET COUNTY MUNICIPAL PROSECUTORS 2011

COUNTY PROSECUTOR

____________________________

Bedminster Richard Guss

Bernards Twp. Stephen O. Davis

Bernardsville Miles Winder

Bound Brook Kip Bateman

Branchburg Geoffrey Soriano

Bridgewater Kip Bateman

Far Hills Richard Guss

Franklin Hector Rodriguez

Joseph Demarco

Green Brook John Bruder

Hillsborough Frank Blandino

William Fox DWI

Manville Matt Dorsi

Montgomery William Willard

North Plainfield Eric Goodman

Peapack/Gladstone Ray Stine

Raritan Boro Steve Sloan

Somerville Joseph Demarco

South Bound Brook Matt Dorsi

Warren Steve Rothblatt

Watchung Richard Guss

List by Ken Vercammen, Past Chair Municipal Court Practice Section of NJ State Bar Association

Please fax any revisions to Kenneth Vercammen, Esq. at 732-572-0030.

Thank you

MERCER COUNTY MUNICIPAL PROSECUTORS 2011

Town PROSECUTOR

East Windsor Jeffrey Rubin

Ewing Ashley BosticHutchinsopn

Hamilton Twp. Russell Cherkos

Dg Sarsfield

Hightstown Robert Yostembski

Hopewell Boro Roger T. Haley

Hopewell Twp. Kevin Nerwinski

Lawrence Reed Gusciora

Pennington Boro Craig J. Hubert

Princeton Boro Reed Gusciora

Princeton Twp. Chris Koutsouris

Trenton Lyle Hough

____________

Robbinsville Chris Koutsouris
West Windsor Jeffrey Rubin

[ Mercer County Prosecutors GNonclient]

List by Ken Vercammen, Past Chair Municipal Court Practice Section of NJ State Bar Association

Please fax any revisions to Kenneth Vercammen, Esq. Thank you

MONMOUTH MUNICIPAL COURT PROSECUTORS 2011

MONMOUTH MUNICIPAL COURT PROSECUTORS 2011

TOWN PROSECUTOR

Aberdeen Allen E. Falk

Allenhurst Martin J. McGreevy

Allentown Donald Driggers

Asbury Park James N. Butler, Jr.

Atlantic Highlands Chrstine Hanlon

Avon By the Sea Benjamin Choi

Belmar Stephen G. Schueler

Bradley Beach Jason E. Shamy

Brielle Paul Capotorto

Colts Neck Meghan Bennett

Deal _______

Eatontown Pat Mena

Englishtown Richard Kelly

Fair Haven Mitchell Jacobs

Farmingdale Richard Kelly

Freehold Boro Kathleen Sheedy

Freehold Twp. Nicole Sonnenblick

Hazlet Patrick Healy

Highlands John Lane

Holmdel Steven Zabarsky

Howell John Rihacek

Interlaken James Carton

Keansburg Jerry Massel

Keyport Patrick Healy

Lake Como [So. Belmar] Kimberley Casten

Little Silver Mike Halfacre

Long Branch Steve Rubin

Manalapan Nicole Sonnenblick

Manasquan Jim Fennessy

Doug Jones

Marlboro Allen Falk

John T. Lane, Jr.

Matawan Sean Kean

Middletown Francis Gilbertson

Gerald Massel

Millstone Richard Kelly

Monmouth Beach Jerry Massell

Neptune City Martin McGreevy

Neptune Twp. _________

_________

Ocean Twp. Timothy McGoughran

Oceanport James N. Butler, Jr.

Red Bank James N. Butler, Jr.

Roosevelt Richard Kelly

Rumson Michael I. Halfacre

Sea Bright John Lane

Sea Girt Boro James Carton IV

Shrewsbury Boro James M. Ronan, Jr.

Shrewsbury Twp ___________

Spring Lake Colin Quinn

Spring Lake Heights Colin Quinn

Tinton Falls Michael Fitzgerald

Union Beach Jerry Massell

Upper Freehold Twp. Richard Kelly

Wall Twp. _______

West Long Branch Steve Rubin

List by Ken Vercammen, Past Chair Municipal Court Practice Section of NJ State Bar Association

Please fax any revisions to Kenneth Vercammen, Esq.

Thank you

Monmouth County Prosecutors

MIDDLESEX MUNICIPAL COURT PUBLIC DEFENDERS 2011

TOWN PUBLIC DEFENDER

Carteret Desmond Abazia

Dunellen Joseph Stransky

East Brunswick Mark B Weiner

Edison John Kwasnik

Tom Blauvelt

Helmetta Richard Klein

Highland Park Robert Longhi

Jamesburg Jason Shamy

Metuchen Kenneth Vercammen

Middlesex Boro John Sullivan

Milltown Thomas Abode

Monroe Frank Gumina

New Brunswick Richard Veitch

James Rollyson

North Brunswick Mike Policastro

Old Bridge Marc Schram

Perth Amboy Michelle Roman

Piscataway Stacy Pilato

Plainsboro/Cranbury Robert Schwartz

Sayreville Paul DeSarno

South Amboy George Otlowski

South Brunswick Mary Ann Duffy

South Plainfield Ed Santoro

South River James Nolan

Spotswood Frederick Roselli

Woodbridge James Durek

[MiddlesexMCourt Public Defender

Please fax any revisions to Kenneth Vercammen, Esq. Thank you

MIDDLESEX MUNICIPAL COURT PROSECUTORS 2011

Municipality Prosecutor

Carteret Thomas Downs

William Feingold

Dunellen Miles Winder

East Brunswick William Shipers

Jeremy Solomon

Edison Joseph Lombardi

Tara Auciello

Rosalind Westlake

Helmetta Paul Granick

Highland Park Patrick Bradshaw

Jamesburg Chris Rafano

Metuchen William Feingold

Middlesex Boro Jeremy Solomon

Milltown Greg Rubenstein

Monroe Bernard "Skip" Shihar

New Brunswick Bob Adochio

Bob Goodwin

North Brunswick Lorraine Nielson, , Dave L

Old Bridge W. Lane Miller

Perth Amboy John Cassese

Piscataway Tom Lanza

John Kawczynski

Plainsboro/Cranbury __________

Sayreville Robert Blanda

South Amboy Thomas E. Downs IV

South Brunswick Jeremy Solomon /Aravind Aithal

South Plainfield Tom Lanza

Paul Garelick

South River David Stahl

Spotswood Lorraine Nielson

Woodbridge Harold Parra

Norma Murgado/Robert Carroll

Chris Rafano

David Stahl

- Middlesex Mun Prosecutors

List by Ken Vercammen, Past Chair Municipal Court Practice Section of NJ State Bar Association

Please fax any revisions to Kenneth Vercammen, Esq. . Thank you

UNION COUNTY MUNICIPAL PROSECUTORS 2011

UNION COUNTY MUNICIPAL PROSECUTORS

COURT PROSECUTOR LAW FAX NUMBER

Berkeley Heights Michael Mitzner

Clark Jon Henry Barr

Cranford Norman Albert

Elizabeth Patricia Mack

Norma Murgado

Asther E. Thomas

Lawrence Centanni

Anabela Dacruz Melo

Christopher Howard

Vito Mazza

Tangerla Mitchell Thomas

Anette Quijano

Fanwood Daniel Antonelli

Garwood Robert Donovan

Hillside Moshood Muftau

Josephine Gonzalez

Kenilworth Jon Henry Barr

Linden Nick Scutari

Mountainside Frank Sahaj

New Providence Robert Thelander

Plainfield Robert Wilson

Tangerla Mitchell Thomas

Sheila Ellington

Rahway Richard Fazzari

Roselle Anthony C. Mack

Kevin Harris

Roselle Park Rich Huxford

Scotch Plains Robert Pansulla

Springfield Howard Egenberg ( )

Summit Michael Mitzner

Union Michael Wittenberg ( )

Drew Bauman

Dawn Donohue

Westfield Anthony Prieto

Winfield Josephine Gonzales

Union County Municipal Prosecutor List by Ken Vercammen, Past Chair Municipal Court Practice Section of NJ State Bar Association

Please fax any revisions to Kenneth Vercammen, Esq. .

Thank you

STATE OF NEW JERSEY VS. JAMES D. PENNINGTON A-2637-09T2

STATE OF NEW JERSEY VS. JAMES D. PENNINGTON

A-2637-09T2

Based upon its derivation from the Model Penal Code, we

hold that, when read together, N.J.S.A. 2C:44-5(b)(1) and

N.J.S.A. 2C:44-5(a)(2) prohibit the imposition of a second

extended term on a defendant who is serving an extended term for

a crime committed after the one for which the sentence is being

imposed, subject to the statutory exception for crimes committed

while incarcerated. 03-21-11

not joyriding just to be in car STATE OF NEW JERSEY IN THE INTEREST OF W.G.

not joyriding just to be in car STATE OF NEW JERSEY IN THE INTEREST OF W.G.

Submitted December 13, 2010 - Decided March 17, 2011

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0559-09T4

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FJ-20-1483-09, FJ- 20-1482-09, FJ-20-1760-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Robert J. Cino, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM W.G. appeals from an adjudication of delinquency on a

lesser-included fourth-degree offense of unlawful taking of a means of conveyance, commonly known as joyriding, in violation of N.J.S.A. 2C:20-10(b). Based on our independent review of the record and applicable law, we are constrained to reverse.

On December 21, 2009, at approximately 10:00 p.m., Sergeant John Quick of the New Brunswick Police Department was on patrol when he saw a car proceeding southbound on Route 27 at a high rate of speed. The driver attempted to make a left-hand turn onto Sanford Street, a one-way street, in the wrong direction. Once the driver realized his error, he made a u-turn into oncoming traffic, at which point Quick radioed dispatch and requested a check on the license plate. He was informed the vehicle, a 1994 Honda Accord, had been reported stolen from a parking lot the day before. Quick put on his overhead lights and stopped the car at Sandy and Front Streets. There were four occupants, including W.G. and his brother1 seated in the rear of the vehicle.2 At the time of the stop, the ignition was empty.

When Quick searched the driver, he found a small screwdriver and a key in his right front pocket. Although the key fit the glove box and the trunk, Quick could not insert it in the badly damaged ignition. Starting the motor required the use of an object such as a screwdriver.

Quick testified at trial that, after nineteen years on the police force, he knew the condition of the ignition meant the

1

W.G. and his brother were tried in the same juvenile proceeding. 2 During an unsuccessful effort at entering a guilty plea, W.G. said under oath that he was seated in the front of the vehicle. The officer's recollection was that W.G. was seated in the rear.

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vehicle was stolen. In fact, Quick described a photograph introduced during his testimony as depicting "an enormous gaping hole in the steering column." As one of the Honda's owners described it, "the place that you turned the key . . . is no longer there. It's just the inside." The other owner testified that the front steering column is visible from the rear.

Defense counsel argued the Rule 3:18-1 motion for acquittal at the close of the State's case based on the theory that the State did not prove the juvenile even knew the car had been stolen. He contended it was not "necessarily reasonable" to assume a person seated in the rear of even a relatively small car at 10:00 p.m. would have noticed the condition of the steering column. He therefore urged the court to acquit W.G. both of receiving stolen property as well as the lesser-included offense of joyriding.

The court denied the Rule 3:18-1 application and adjudicated W.G. delinquent pursuant to subsection (b) of the unlawful taking of a means of conveyance statute: "A person commits a crime of the fourth degree if, with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent." N.J.S.A.

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2C:20-10(b). Now on appeal, the following points are advanced

on behalf

of the juvenile:

POINT I NO LEGAL BASIS EXISTED TO FIND BEYOND A REASONABLE DOUBT THAT THE JUVENILE HAD ACTED WITH PURPOSE TO WITHHOLD A MOTOR VEHICLE TEMPORARILY FROM THE OWNER BY TAKING, OPERATING OR EXERCISING CONTROL OVER THE CAR IN VIOLATION OF N.J.S.A. 2C:20-10b

POINT II THE LOWER COURT SHOULD HAVE GRANTED DEFENSE COUNSEL'S MOTION TO DISMISS THE COMPLAINT AT THE END OF THE STATE'S CASE

POINT III THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE ADJUDICATION FOR JOY-RIDING, ESPECIALLY GIVEN THE SPARSE RECORD IN THIS TRIAL. (Not Raised Below)

POINT IV THE LOWER COURT COMMITTED PLAIN ERROR BY FINDING THAT THE JUVENILE WAS GUILTY OF THE OFFENSE OF JOY-RIDING. (Not Raised Below)

POINT V REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE JUVENILE OF JUSTICE

The juvenile first contends that pursuant to State v. McCoy, 222 N.J. Super. 626, 633-34 (App. Div. 1988), aff’d, 116 N.J. 293 (1989), the judge's acquittal on the original charge alleged in the complaint, namely, receiving stolen property, N.J.S.A. 2C:20-7(a), makes his finding of guilt pursuant to N.J.S.A. 2C:20-10(b) logically inconsistent. The judge specifically found the juvenile did not "acquire[] possession,

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A-0559-09T4

control, or title of the car," nor did he have "any intent to possess or control the motor vehicle, let alone acquire title to it."

Despite this conclusion, reasonable in light of the void in the State's proofs, the judge went on to state "everyone in the car . . . knew it to be stolen and in participating in using it through their mere presence purposely withheld it. . . ." Yet, the "purpose to withhold temporarily from the owner" required by subsection (b) necessarily involves acts including the unauthorized taking, operation, or exercise of control over a motor vehicle. It is not reasonable to equate the mere act of being a passenger in a motor vehicle known to be stolen with any of these activities.

In contrast, subsection (d) of the statute states: "[a] person commits a crime of the fourth degree if he enters and rides in a motor vehicle knowing that the motor vehicle has been taken or is being operated without the consent of the owner or other person authorized to consent." N.J.S.A. 2C:20-10(d). The language of that section clearly applies to this scenario. Here, the State proved only that the juvenile must have known the Honda was stolen because of the condition of the ignition and the use of an object, as opposed to a key, to start the car.

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A-0559-09T4

The judge's factual findings necessarily mean the juvenile could have been adjudicated delinquent only of the offense of joyriding as a passenger, subsection (d), which can be a lesser- included offense of receiving stolen property. See State v. Moore, 330 N.J. Super. 535, 543-45 (App. Div.), certif. denied, 165 N.J. 531 (2000). Subsection (b), however, requires a "purpose to withhold temporarily from the owner," which the judge had specifically found absent from the State's case.

In general, criminal defendants may be retried following the reversal of their conviction on appeal. See N.J.S.A. 2C:1- 9(c); State v. Lane, 279 N.J. Super. 209, 214 (App. Div.), certif. denied, 141 N.J. 94 (1995). Double jeopardy considerations preclude this option where a reviewing court bases its decision on "'a failure of proof at trial'" rather than "trial error." State v. Millett, 272 N.J. Super. 68, 97 (App. Div. 1994) (quoting Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1, 12 (1978)). The distinction rests on the fact that "[a] reversal for trial error never constitutes a decision that the State failed to prove its case, and therefore implies nothing with respect to the defendant's guilt or innocence." Ibid.

The question we must therefore decide is whether the court's mistaken adjudication of guilt constitutes a "failure of

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A-0559-09T4

proof" or mere "trial error." See State v. Tropea, 78 N.J. 309, 313-14 (1978) (adopting the Burks distinction between trial errors and failures of proof). Reversals springing from trial errors reveal only the existence of a "defective" process, after which "the accused has a strong interest in obtaining a fair readjudication of his guilt free from error" and "society maintains a valid concern for insuring that the guilty are punished." Burks, supra, 437 U.S. at 15, 98 S. Ct. at 2149, 57

L. Ed. 2d

at 12. In contrast, an evidentiary reversal

means that the government's case was so lacking that it should not have even been submitted to the jury. . . . [and] it is difficult to conceive how society has any greater interest in retrying a defendant when . . . it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.

[Id. at 16, 98 S. Ct. at 2150, 57 L. Ed. 2d at 12-13.]

Because the State could not prove anything more juvenile's presence in a patently stolen motor vehicle, we believe the failure is one of proof and not process, and that the double jeopardy clause bars retrial. Because no purposeful conduct was proven beyond the intent to hitch a ride in a stolen car, the State did not prove the elements of the subsection (b) offense. The State did not prove appellant's unauthorized taking, operation, or control, or the purpose to withhold

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A-0559-09T4

than the

temporarily from the owner. Accordingly, we will not reach the juvenile's other points, made moot by our conclusion.

Reversed.

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