December 1, 2012

L.A. VS. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, ET AL. A-2726-11T1


L.A. VS. NEW JERSEY DIVISION OF YOUTH AND FAMILY
SERVICES, ET AL.
A-2726-11T1
This case required us to define the standard of care
applicable to a physician treating a child in the context of the
physician's duty to report child abuse to the Division of Child
Protection and Permanency, formerly known as the Division of
Youth and Family Services. The parties agreed that the standard
of care is embodied in N.J.S.A. 9:6-8.10, which requires
reporting by "[a]ny person having reasonable cause to believe
that a child has been subjected to child abuse."
For reasons explained in the opinion, we concluded that "a
physician has 'reasonable cause to believe' that there has been
abuse if a 'probable inference' from the medical and factual
information available to the physician is that the child's
condition is the result of child abuse, including 'reckless' or
'grossly or wantonly negligent' conduct or inaction by a parent
or caregiver. The inference need not be the 'most probable,'
but it must be more than speculation or suspicion."
STATE OF NEW JERSEY VS. NICQUAN D. SCOTT

A-4633-10T1
We focused on the mens rea needed to convict defendant of
second-degree possessing, receiving, or transferring a community
gun, N.J.S.A. 2C:39-4a(2), and analyzed whether the State must
prove that defendant knew the firearm was a community gun. We
held that defendant's knowledge of the communal character of a
firearm is not an element of the statute. 11-08-12 

Mandatory 180 jail for DWI related driving while suspended even if DWI was prior to 2010. State v Carrigan __ NJ Super. ___ (App. Div. 2012) A-3751-11T1


Mandatory 180 jail for DWI related driving while suspended even if DWI was prior to 2010. State v Carrigan __ NJ Super. ___ (App. Div. 2012)
A-3751-11T1
     N.J.S.A. 2C:40-26(b), which became effective on August 1, 2011, makes it a fourth-degree crime for a motorist to operate a vehicle at a time when his or her driver's license is suspended or revoked for a second or subsequent conviction for driving while intoxicated ("DWI") or refusal to submit to an alcohol breath test. Defendant was charged with that crime, upon being found driving a car in September 2011 while his license was suspended due to multiple prior DWI offenses.
     The trial court dismissed the complaint, concluding that the application of N.J.S.A. 2C:40-26(b) to defendant violated ex post facto principles, essentially because his ongoing license suspensions had been imposed before the statute's effective date.
    The Appellate Division reversed and concluded that a violation of N.J.S.A. 2C:40- 26(b) comprises a new offense based upon new conduct, and that the statute does not impose retrospective punishment for a prior offense. Hence, the law may be constitutionally applied to drivers with suspended licenses, such as defendant, who are caught driving after August 1, 2011, regardless of whether their DWI-based suspensions were imposed before that date. 11-15-12

J.D. VS. M.A.D. A-2229-11T4



 J.D. VS. M.A.D.
A-2229-11T4
We review a wife's appeal of that portion of a domestic
violence final restraining order entered against her husband,
granting him exclusive possession of their marital home and
temporary custody of their two children. Because that order
denied the victim of domestic violence temporary custody of her
children, contrary to the statutory presumption contained in
N.J.S.A. 2C:25-29b(11), and restrained her from her home without
statutory authorization, we reverse.

State v. Stanley Cliff Smith, a/k/a Jerry Johnson (A-68-10; 066806)


State v. Stanley Cliff Smith, a/k/a
Jerry Johnson (A-68-10; 066806)
The question of suppression of the telephone records
and the evidence developed from those records involves
a two-step analysis, involving both the inevitable
discovery doctrine and the independent source rule.
The independent source here is the murder weapon once
that was recovered, the police would, through their
normal investigatory steps, have inevitably been led
to defendant. The Appellate Division concluded
correctly that the trial court should not have granted
the motion to suppress. In addition, the Court finds
no prosecutorial misconduct warranting a new trial. 10-25-12  

State v. Joseph Schubert, Jr. (A-15-11; 068149)


State v. Joseph Schubert, Jr. (A-15-11; 068149)
The trial court’s action in amending defendant’s
judgment of conviction to add community supervision
for life after had had fully completed his sentence
violated the constitutional prohibition against double
jeopardy. 10-22-12 

No automatic right for DWI defendant to inspect inside of police station State v Carrero State v Baluski



No automatic right for DWI defendant to inspect inside of police station State v Carrero
State v Baluski  
A-3232-11T3/ A-4319-11T3 (CONSOLIDATED) 
The court reviewed discovery orders separately issued in these two DWI cases authorizing defense counsel and/or defense experts to inspect and photograph rooms within the police stations where their respective clients provided breath samples on the Alcotest device in order to verify that the tests were properly administered.

In Carrero, such access was granted to help ascertain whether devices emitting radio frequency interference (RFI) had been located in the station within 100 feet of the testing area. In Baluski, such access was granted to help ascertain whether the interior layout of the station physically prevented defendant from being observed for the required twenty minutes before testing.
The court reversed the discovery orders because neither defendant has shown a reasonable justification to conduct the requested inspection.

The court concluded that Carrero's request is insufficient in light of the Supreme Court's binding legal and evidentiary determination in State v. Chun, 194 N.J. 54, 89, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), that the Alcotest is designed in a manner that is " "well shielded from the impact of any potential RFI," and also in light of the State's countervailing security interests disfavoring routine civilian access to the interior of a police station.
The court concluded that Baluski's request is likewise insufficient because he has presented no affirmative basis to believe that an officer failed to observe him for the twenty pre-testing minutes required by Chun, supra, 194 N.J. at 79, and also in light of the State's countervailing security interests.