January 28, 2014

State v. Jarrett Parker (A-67-11; 068966)

 State v. Jarrett Parker (A-67-11; 068966)

 In accordance with N.J.R.E. 405(a) and 608, an alias
which appears on a defendant’s prior judgment of
conviction may not be used for impeachment purposes in
a future trial unless the alias was the basis for the
prior conviction. Thus, the State’s use of Parker’s
aliases to demonstrate his character for
untruthfulness constituted error warranting reversal since the aliases were not the subject of his prior
convictions. 1-15-14

State v. Raymond D. Kates (A-40-12; 070971)

 State v. Raymond D. Kates (A-40-12; 070971)

 The judgment of the Appellate Division is affirmed
substantially for the reasons expressed in Judge
Ostrer’s opinion below. Deprivation of a defendant’s
right to counsel of choice is only found where, as
here, a trial court denies an adjournment without
properly considering the relevant factors or abuses
its discretion in doing so. 1-14-14

January 25, 2014

Governor signed new law which Creates crime of cyber-harassment

Governor signed new law which Creates crime of cyber-harassment
A-3785/S-2469 (Quijano, Mainor, Eustace, Wimberly/Norcross, Sacco) -

The bill creates the crime of cyber-harassment.  The bill provides that a person commits the crime of cyber-harassment if, while online using any electronic device or using a social networking site and with the purpose to harass another, that person:  1) threatens to injure or harm a person or that person’s property; 2) knowingly sends, posts, comments, requests, suggests, or proposes lewd, indecent or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person; or 3) threatens to commit a crime against a person or his or her property.
      The bill provides that cyber-harassment is a crime of the fourth degree, which is punishable by up to 18 months imprisonment, a fine of up to $10,000, or both.  However, if the offender is over age 21 at the time of the offense and impersonates a minor for the purpose of cyber-harassing a minor, cyber-harassment is a crime of the third degree.  A crime of the third degree is punishable by three to five years imprisonment, a fine of up to $15,000, or both.
      If a minor under age 16 is adjudicated delinquent for cyber-harassment, the court may order as a condition of the sentence that the minor, accompanied by his or her parent or guardian, complete, in a satisfactory manner, one or both of the following: 1) a class or training program intended to reduce the tendency toward cyber-harassment behavior; or 2) a class or training program intended to bring awareness to the dangers associated with cyber-harassment.
      If a parent or guardian fails to accompany his or her child to the class or training program, the parent or guardian would be guilty of a disorderly persons offense and fined up to $25 for a first offense and up to $100 for each subsequent offense.

COMMITTEE AMENDMENT:
      The committee amendment clarifies that, in order to commit the crime of cyber-harassment, the offender must knowingly send or post lewd, indecent or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person. 
     BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:

     1. a. A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person:
     (1) threatens to inflict injury or physical harm to any person or the property of any person;
     (2) 1knowingly1 sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person 1with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person1; or
     (3) threatens to commit any crime against the person or the person’s property.
     b.  Cyber-harassment is a crime of the fourth degree, unless the person is 21 years of age or older at the time of the offense and impersonates a minor for the purpose of cyber-harassing a minor, in which case it is a crime of the third degree.
     c.  If a minor under the age of 16 is adjudicated delinquent for cyber-harassment, the court may order as a condition of the sentence that the minor, accompanied by a parent or guardian, complete, in a satisfactory manner, one or both of the following:
     (1) a class or training program intended to reduce the tendency toward cyber-harassment behavior; or
     (2) a class or training program intended to bring awareness to the dangers associated with cyber-harassment.
     d.  A parent or guardian who fails to comply with a condition imposed by the court pursuant to subsection c. of this section is a disorderly person and shall be fined not more than $25 for a first offense and not more than $100 for each subsequent offense.


     2.  This act shall take effect immediately.

Failure by State Police to create and maintain a centralized statewide database not a violation of the Supreme Court Chun Order. State v Chun 215 NJ 489 (2013)

Failure by State Police to create and maintain a centralized statewide database not a violation of the Supreme Court Chun Order. 
State v Chun 215 NJ 489 (2013)   
          The Supreme Court on March 17, 2008 issued it’s unanimous opinion addressing the challenges raised by defendants to the scientific reliability of the Alcotest 7110 MKIII-C (the Alcotest).
     The defendant drivers moved for an Order in Aid of Litigants’ Rights, see R. 1:10-3, contending that the State has failed to comply with this Court’s March 17, 2008, Order, principally by failing to create and maintain a centralized statewide database, and asserting more specifically that the database lacks integrity because it differs from the manner in which data was previously stored on and available on CD-ROM, is incomplete as to certain types of files and calibration cycles, is presented in a format different from the one noted in the report of the Special Master, and is subject to the third-party software developer’s fee,
     The defendants requested that the NJ Supreme Court deem the State to have violated the March 17, 2008, Order and that The Supreme Court therefore direct the State to redesign the database to comply with defendants’ understanding of the meaning and intent of this Court’s March 17, 2008, Order, and that the Supreme Court further direct the State to ensure the integrity of the data in the database and order other relief.
     The Attorney General’s office responded to the factual assertions concerning the integrity and operation of the centralized statewide database raised by defendants through the affidavits of Howard J. Baum, Ph.D., Director of the Office of Forensic Sciences (OFS), a Division of the New Jersey State Police, and of Ali M. Alaouie, Ph.D., an OFS research scientist charged with oversight and monitoring of Alcotest data downloads and database integrity.
     The Attorney General’s office moved for it’s own Order in Aid of Litigant’s Rights seeking to modify the Court’s March 17, 2008, Order and to authorize the State to continue to utilize the Alcotest with Firmware version 3.11, which was evaluated during the proceedings that led to The Supreme Court’s March 17, 2008, Opinion and Order.
     The Attorney General’s office requested that the State be relieved of further compliance with Paragraph 2 of this Court’s Order of March 17, 2008, based on the State’s representation that Firmware 3.13, which is the Alcotest software that was created in conjunction with Draeger Safety Diagnostics, Inc. (Draeger), the manufacturer and supplier of the Alcotest, in compliance with Paragraph 2 of The Supreme Court’s March 17, 2008, Order, would effectively render the previously created database unusable and unworkable.
     The Attorney General’s office represented to the Court that Draeger has advised that the Alcotest will no longer be serviceable after 2016 and that the State is now in the process of evaluating alternate breath testing devices for implementation.
     The defendant also moved for an Order in Aid of Litigants’ Rights, see R. 1:10-3, contending that, absent compliance with Paragraph 2 of the Supreme Court’s March 17, 2008, Order, which directed that the specified software changes be made “forthwith”, the Alcotest is unsuitable for use in New Jersey, and should not be used.
      The defendants challenged the reliability of the Alcotest 7110 utilizing Firmware version 3.11 both in general and in particular through reiteration of and expansion upon arguments raised during the proceedings that led to this Court’s March 17, 2008, Opinion, including defendant’s challenge to the Firmware’s utilization of the fuel cell drift algorithm and the absence of implementation of software to account for the demonstrated physiological differences that impede the ability of women over the age of sixty to provide a sufficient breath sample and that therefore raised the specter of inappropriate charges being brought against such women for refusal, see N.J.S.A. 39:4-50.4.
     The defendants requested that the Supreme Court declare that the Alcotest is not sufficiently scientifically reliable to be utilized in any prosecution for driving under the influence of alcohol. The defendants were denied most of the relief they sought.
          The Supreme Court concluded that the centralized statewide database was fully in compliance with this Court’s Order of March 17, 2008, in all respects.
          The Supreme Court concluded that defendants have failed to demonstrate that the State has “willfully refused” to comply with The Supreme Court’s March 17, 2008, Order, see Pasqua v. Council, 186 N.J. 127, 141 n.2 (2006), and that the State has demonstrated that in spite of its best efforts to do so, it does not have the ability to comply with Paragraph 2 of the Order, see Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 392 (1995), because of the unanticipated but unavoidable adverse impact of compliance that the implementation of Firmware version 3.13 would have upon the continued viability of the existing database.
     The Supreme Court concluded that the Alcotest 7110, utilizing Firmware version 3.11, remains scientifically reliable, and generates results that are admissible to prove a per se violation of the statutory prohibitions on driving while under the influence of alcohol, when those results are utilized in strict compliance with Paragraphs 1, 3, 4, 5, 6 and the associated worksheets attached to this Court’s March 17, 2008, Order.
          The Supreme Court concluded that although Paragraph 1(A)(3) of the Supreme Court’s March 17, 2008, Order directed that certain AIR results be inadmissible in prosecutions of women over the age of sixty for violations of the refusal statute, see N.J.S.A. 39:4-50.4a, a further remedy is now necessary to protect the equal protection rights of women falling into that category.
     The Supreme Court therefore held:
     1.  IT IS ORDERED that defendants’ motions including to stop use of Alcotest was denied; and
     2.  IT IS ORDERED that the State’s motion, M-1539, for relief from further compliance with Paragraph 2 of The Supreme Court’s March 17, 2008, Order is granted; and
     3.  IT IS ORDERED that the State’s motion, M-1539, for authorization to continue to utilize the Alcotest 7110 with Firmware version 3.11, and to deem the results admissible in accordance with The Supreme Court’s March 17, 2008, Order and associated worksheets, with the exception of the provisions of Paragraph 2 thereof, is granted; and

     4.  IT IS ORDERED that, in addition to the directive in Paragraph 1(A)(3) of The Supreme Court’s March 17, 2008, Order, concerning admissibility of Alcotest results for women over the age of 60 in prosecutions for refusal, see N.J.S.A. 39:4-50.4a, if the only evidence of refusal is the inadmissible AIR, such women may not be charged with, prosecuted for, or convicted of that offense.

January 7, 2014

State v. David M. Gibson (A-27-12; 070910)

State v. David M. Gibson (A-27-12; 070910)

 There is insufficient evidence in the record to
support a finding that Officer Comegno had probable
cause to arrest Gibson for defiant trespass;
therefore, the subsequent search at the stationhouse
was unconstitutional and the drug evidence seized
during the search must be suppressed. 1-7-14

State of New Jersey v. Reinaldo Fuentes

State of New Jersey v. Reinaldo Fuentes (A-18-12;
070729)

 Because the trial court did not adequately explain its
findings with respect to the aggravating factors, or
its balancing of the aggravating and mitigating
factors pursuant to N.J.S.A. 2C:44-1(a) and (b), the
matter is remanded for resentencing. 1-7-14

January 1, 2014

STATE OF NEW JERSEY VS. IVONNE SAAVEDRA

STATE OF NEW JERSEY VS. IVONNE SAAVEDRA
 A-1449-12T4

Defendant was employed by the North Bergen Board of
Education as a clerk to the child study team. She was
indicted with one count of second-degree official
misconduct and one count of third-degree theft for
allegedly taking confidential student records to assist her
attorney in the prosecution of her civil employment
discrimination claims against her employer. Relying on
Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010),
defendant unsuccessfully moved to dismiss the indictment
before the trial court.

We granted leave to appeal and now affirm. We reject
defendant's argument that she had an absolute right to take
confidential student records to support her wrongful
termination suit against the Board. Quinlan does not
establish a bright-line rule decriminalizing conduct that
is otherwise sufficient to support an indictment under
State v. Hogan, 144 N.J. 216 (1996). The trial judge was
not required to apply the multi-factor test in Quinlan to
determine whether the State presented a prima facie case to
support the indictment against defendant. Defendant is
free, however, to raise Quinlan at trial to negate the
state of mind requirements of official misconduct under
N.J.S.A. 2C:30-2a and theft under N.J.S.A. 2C:20-2b(2)(g),
as an affirmative defense.

Judge Simonelli dissents. She would have dismissed the
indictment with prejudice on fundamental fairness grounds. 12/24/13

STATE OF NEW JERSEY V. TIMOTHY ADKINS

 STATE OF NEW JERSEY V. TIMOTHY ADKINS
 A-5748-12T4/A-5749-12T4(CONSOLIDATED)

Addressing the impact of Missouri v. McNeely, ___ U.S.
___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), on pending
cases involving warrantless blood tests, we reversed a
trial court order suppressing blood evidence in a DWI and
assault-by-auto case. Consistent with long-standing
rulings of the New Jersey Supreme Court, the police
obtained the blood sample from defendant without a search
warrant. Thereafter, the United States Supreme Court
unexpectedly changed the legal landscape by issuing a
ruling that construed the Fourth Amendment more broadly
than our Court.

On these facts, under Davis v. United States, ___ U.S.
___, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011), suppression
would not be the appropriate remedy under federal
constitutional law, because the New Jersey police were
acting lawfully under established New Jersey precedent at
the time of the search. Further, had our own Supreme Court
issued the McNeely ruling as a construction of the New
Jersey Constitution, the ruling would not have been applied
retroactively. Under these unusual and very limited
circumstances, we held that suppression of the evidence in
this case was not required. 12/20/13

State of New Jersey v. Oscar Porter (A-91-11; 069223)



State of New Jersey v. Oscar Porter (A-91-11; 069223)

 With respect to the claim of ineffective assistance of
trial counsel based on failure to investigate an alibi
defense, defendant made out a prima facie showing and
raised material facts in dispute, therefore entitling
him to an evidentiary hearing on that issue. 12-19-13