December 14, 2015

STATE V. PATTERSON A-2055-10T1

STATE V. PATTERSON A-2055-10T1
We hold that the drug-trafficking recidivist provision in N.J.S.A. 2C:43-6(f) cannot be the basis to impose a mandatory extended term for the offense of drug trafficking within 500 feet of a public housing facility under N.J.S.A. 2C:35-7.1. N.J.S.A. 2C:43-6(f) has never been amended to add the subsequently-enacted N.J.S.A. 2C:35-7.1 to its list of drug trafficking offenses for which an extended term is required. The prosecution may move to apply N.J.S.A. 2C:43-6(f) to the N.J.S.A. 2C:35-5 count, and the resulting minimum term of parole ineligibility will survive the merger of that count with the N.J.S.A. 2C:35-7.1 count. Because defendant attempted to explain away the cash in his pocket by using his post-arrest statement that "he was unemployed and that he won the money in Atlantic City gambling," the prosecutor's reference to his statement and his unemployment was not reversible error.

STATE V. BIVINS A-1577-12T2

STATE V. BIVINS A-1577-12T2
In this appeal, we consider whether the scope of the permissible area and persons to be searched, pursuant to a search warrant, extends to the location where defendant was found, seated in a vehicle, parked on the street, five or six houses away from the premises where a search warrant was being executed. The motion judge found there was probable cause to search defendant based upon the search warrant. We reverse holding pursuant to Bailey v. United States, __ U.S. __, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013), the search and seizure was beyond the spatial limits of the search warrant.

STATE V. WITT A-0866-13T2

STATE V. WITT A-0866-13T2
       The court granted leave to appeal an order granting defendant's motion to suppress evidence seized during a warrantless search of his vehicle. The court affirmed not only because it is bound by State v. Pena-Flores, 198 N.J. 6 (2009), and its many antecedents, and not only because no exigencies  for the  search were  revealed  during the suppression hearing,  but also    because  there was no legitimate basis for the motor vehicle stop that preceded the search. In this last regard, the record demonstrated that the police officer stopped defendant's vehicle because defendant did not dim his high beams as he drove by the officer's parked patrol vehicle. Because the patrol vehicle was not an "oncoming vehicle," and because there were no other "oncoming vehicles" on the road at the time, the police officer did not have objectively reasonable grounds to believe defendant had violated the high-beam statute, N.J.S.A. 39:3-60, in making the vehicle stop.

STATE OF NEW JERSEY IN THE INTEREST OF Y.C. A-1030-13T2

STATE OF NEW JERSEY IN THE INTEREST OF Y.C. A-1030-13T2
       We   held that the  Juvenile  Justice Commission's "interim policy" on transferring juveniles to adult prisons was invalid, because it was not adopted in compliance with the Administrative Procedures Act. We also found that the agency's action in transferring Y.C. was contrary to State ex rel. J.J., 427 N.J. Super. 541 (App. Div. 2012), which invalidated the JJC's transfer regulations and indicated that the     agency must adopt new regulations before transferring a juvenile to an adult prison. We ordered that Y.C. be given a new transfer hearing, to be conducted by the Office of Administrative Law, and ordered the JJC to adopt new regulations within 180 days.

STATE v. NUNEZ A-3197-11T2

STATE v. NUNEZ A-3197-11T2
We reverse defendant's murder conviction because the trial judge permitted the State to bolster its case by calling defendant's investigator to testify to a prior consistent statement of the State's only eyewitness in violation of defendant's right to counsel.

STATE VS. ADAMS A-1640-12T4

06/17/14 STATE VS. ADAMS A-1640-12T4
       Defendant was arrested for a new crime while participating in the Intensive Supervision Program (ISP) following modification of a custodial sentence on a prior conviction to permit that participation. R. 3:21-10(b)(6). The precise question presented is whether defendant is entitled to jail credits pursuant to Rule 3:21-8 against the sentence for the new crime from the date of his arrest for that crime until the date he was either sentenced by the judge for the new crime or resentenced by the three- judge ISP panel for "fail[ure] to perform satisfactorily following entry into" ISP, R. 3:21-10(e). We conclude that a defendant in this circumstance is entitled to jail credits for days in confinement from the date of arrest to the date the first sentence is imposed.
       Our decision is informed by State v. Hernandez, 208 N.J. 24 (2011), which deals with jail credits involving multiple charges, R. 3:21-8; N.J.S.A. 2C:44-5(b). And it is informed by State v. DiAngelo, 434 N.J. Super. 443 (App. Div. 2014), which applies Hernandez in a case involving resentencing for a violation of probation.

06/17/14 STATE v. SYLVESTER A-5192-12T4

06/17/14 STATE v. SYLVESTER A-5192-12T4

       N.J.S.A. 2C:40-26b makes it a fourth degree offense to drive while one's license is suspended or revoked for a second or subsequent conviction for driving a car while under the influence of alcohol (DWI). In a bench trial before the Law Division on this charge, defendant argued that her second DWI conviction had been voided ab initio by the municipal court when it granted her PCR petition two months after she was indicted for one count of violating N.J.S.A. 2C:40-26b. Thus defendant argues the State cannot rely on this vacated second DWI conviction to meet its burden of proof under N.J.S.A. 2C:40-26b. The trial court rejected this argument. We affirmed.
       It is undisputed that at the time defendant committed this offense, she was aware her driver's license had been revoked by a presumptively valid second conviction for DWI. We rely on State v. Gandhi, 201 N.J. 161, 190 (2010) to hold that a second DWI conviction vacated through PCR granted by a court after a defendant engages in conduct prohibited in N.J.S.A.2C: 40-26b, cannot be applied retroactively to bar a conviction under this statute.

December 8, 2015

State v. Bell (A-21-12; 070736)

State v. Bell (A-21-12; 070736)
PTI is a pretrial diversionary program that is not available to a defendant once the charges have been tried before a judge or a jury and a guilty verdict has been returned.

State v. Hreha (A-115-11;070222)

State v. Hreha (A-115-11;070222)
The record lacks sufficient credible evidence to support the trial court’s finding that defendant was not offered leniency in exchange for his confession. The matter is remanded for a new Miranda hearing to
allow a trial court to make fresh credibility and factual findings, after which the trial court may decide what weight, if any, to assign to any promises of leniency when it applies the totality-of-the- circumstances test.

State v. Lamb (A-37-12; 071262)

State v. Lamb (A-37-12; 071262)
Under the circumstances of this appeal, an occupant’s knowing and voluntary consent to search a premises is constitutionally effective against a third party and is not nullified by the prior objections of an absent co-occupant whose absence is not the result of a police effort to avoid an objection.

State v. Coles (A-15-12; 070653)

State v. Coles (A-15-12; 070653)
Under the circumstances presented here, a third party’s consent to conduct a warrantless search of a defendant’s living space is insufficient to justify the search when the defendant is unlawfully detained by police.

In re State Grand Jury Investigation (A-65-12; 072552)

In re State Grand Jury Investigation (A-65-12; 072552)
The state of enforcement of each subpoena ordered by the Appellate Division shall continue in effect, provided that the State offers and each defendant executes a statute of limitations tolling agreement. If a defendant fails to execute a tolling agreement within forty-five days of the State’s offer, the stay shall be lifted in respect of that defendant.

State v. Blann (A-75-12; 072146)

State v. Blann (A-75-12; 072146)
The judgment of the Appellate Division is reversed substantially for the reasons expressed in Judge Joseph F. Lisa’s dissenting opinion.

State v. Frye (A-30-12; 070975)

State v. Frye (A-30-12; 070975)
The Court reaffirms its holding in In re Bergwall, 85 N.J. 382 (1981). A prior DWI conviction may enhance the sentence for a subsequent refusal conviction under the refusal statute, N.J.S.A. 39:4-50.4a.

State v. James W. Robinson (A-20-12; 070556)

State v. James W. Robinson (A-20-12; 070556)
N.J.S.A. 2C:44-5(a)(2) bars the imposition of a mandatory extended term and a discretionary extended term in the same sentencing proceeding.

05/02/14 STATE VS. DORSAINVIL A-0879-10T2

05/02/14 STATE VS. DORSAINVIL A-0879-10T2
     After a jury trial, defendant was convicted of first degree conspiracy to commit murder, second degree aggravated assault, and related second and third degree offenses. On the second day of deliberations, the jury reported it was "hopelessly deadlocked." Immediately following the jury's report of an inability to reach a unanimous verdict, sheriff's officers intervened at the jury's request to dissolve a physical altercation between two jurors. The trial court denied defendant's motion for a mistrial.
     We reverse. A physical altercation between two or more deliberating jurors constitutes an irreparable breakdown in the civility and  decorum expected  to    dominate the deliberative process envisioned by the Court in State v. Czachor, 82 N.J. 392 (1980). A jury verdict so tainted cannot stand as a matter of law. The trial judge's supplemental instructions to restore order exacerbated the problem by imposing a judicially crafted civility code of conduct that placed the judge at the center of jury deliberations in violation of State v. Figueroa, 190 N.J.
219 (2007).

STATE VS. ALICE O'DONNELL A-1889-12T2

STATE   VS. ALICE O'DONNELL A-1889-12T2 
Defendant pleaded guilty to the murder of her six-year-old son. She received a thirty-year sentence with a thirty-year MPI. She alleges her attorney was ineffective by failing to diligently pursue a diminished capacity defense and failing to adequately consult with her before urging her to plead guilty. We reverse the trial court's denial of PCR and remand for an evidentiary hearing. 

We direct the court to separately apply the four-factor test governing plea withdrawal motions under State v. Slater, 198 N.J. 145 (2009), and the two-prong test governing PCR petitions under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We compare and contrast the two standards. Both apply to defendant's application for relief. Although the standards sometimes overlap, they do not always lead to the same results. We instruct the trial court not to conflate the two. We also conclude that the court mistakenly set too high a threshold for satisfying the "colorable claim of innocence" factor under Slater.  04/24/14

N.B. VS. S.K. A-0898-12T4/A-0899-12T4(CONSOLIDATED)

N.B. VS. S.K. A-0898-12T4/A-0899-12T4(CONSOLIDATED)
In 2002, plaintiff obtained a domestic violence final restraining order (FRO) against her husband, but agreed in 2003 to its vacation when the parties settled their matrimonial disputes; they then agreed to replace their respective FROs with mutual restraints in the divorce action. In 2012, after years during which the matrimonial restraints proved ineffectual in preventing defendant from attempting to communicate with plaintiff, plaintiff filed a domestic violence action alleging harassment when defendant repeatedly called a telephone that the matrimonial restraints barred him from calling. The trial judge excluded plaintiff's evidence of defendant's prior failures to comply with the matrimonial restraints and granted an involuntary dismissal on the ground that a violation of a matrimonial order cannot constitute an act of domestic violence. The court reversed, holding that defendant's past violations of the matrimonial restraints were relevant in that they provided an understanding of why plaintiff would be alarmed or seriously annoyed by what otherwise seemed to be innocuous communications. In the separate but related appeal, the court affirmed the denial of plaintiff's subsequent motion to vacate the 2003 order, which vacated the original FRO, solely because plaintiff failed to seek relief within a reasonable period of time. 03/24/14  

STATE OF NEW JERSEY VS. KEENAN OGLETREE, JR. A-2081-12T2

STATE OF NEW JERSEY VS. KEENAN OGLETREE, JR. A-2081-12T2
In this appeal, defendant argued he was wrongfully denied 246 days of gap-time credit, which represented the time from his incarceration for a violation of probation until his sentence in later matters. The court agreed and reversed, holding that even though, in the earlier matter, defendant was incarcerated as a condition of probation for 120 days in the county jail, that jail condition did not constitute "imprisonment" within the meaning of the gap- time credit statute, N.J.S.A. 2C:44-5(b)(2). The court observed that application of a broader meaning of the word "imprisonment" in this setting would lead to the incongruous result that a probationary term conditioned on even a single day in the county jail would disqualify an award of gap-time credit when imprisonment was later imposed following a violation of probation, whereas a probationary term without such a condition would not. 03/20/14  

State v. Carlos Bolvito (A-44-12; 071493)

State v. Carlos Bolvito (A-44-12; 071493)
A sentencing court may impose the mandatory Sex Crime Victim Treatment Fund penalty in any amount between a nominal figure and the upper limit prescribed by N.J.S.A. 2C:14-10(a) for the degree of the offense at issue. In setting the penalty, the sentencing court should (1) consider the nature of the offense and the defendant’s ability to pay the penalty during any custodial sentence imposed and after his or her release, and (2) provide a statement of reasons as to the amount of any penalty. 3-31-14

State v. Edward Ronald Ates (A-52-12; 070926)

State v. Edward Ronald Ates (A-52-12; 070926)
New Jersey’s Wiretap Act is constitutional under both the federal and state constitutions. The Legislature’s focus on the “point of interception” is a rational approach because the inherent mobility of cell phones would make it impractical, if not impossible in some instances, for law enforcement to intercept cell phone conversations if agents could only rely on orders issued in the state where a call was placed or received. 3-18-14 In this appeal, the Court considers whether the New

Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1 to -37, is unconstitutional because it allows law enforcement officers in New Jersey to intercept conversations between individuals located outside of New Jersey.

Defendant Edward Ronald Ates, who lived in Florida and had family in Florida and Louisiana, was arrested and charged with the murder of his former son-in-law in Ramsey, New Jersey. As part of the criminal investigation, a New Jersey wiretap judge authorized wiretaps on six telephone numbers assigned to and known to be used by defendant and his family members. The telephone numbers consisted of five cell phones and one landline phone. Law enforcement officers monitored all of the wiretaps from New Jersey. Prior to trial, defendant moved to suppress conversations that involved himself, a Florida resident, his wife, another Florida resident, his mother, a Louisiana resident, and his sister, who lived in both Florida and Louisiana. Defendant claimed that the wiretap orders were “extraterritorial” and that New Jersey officials should have asked the proper authorities in Florida and Louisiana to consent to the wiretaps. Defendant also asserted that the Wiretap Act should be declared unconstitutional because it permits New Jersey authorities to act outside their jurisdiction and wiretap individuals with no connection to New Jersey. The trial court denied the motion, concluding that the Act constitutionally permits intercepting and monitoring out-of-state communications in New Jersey. The jury found defendant guilty.

The Appellate Division affirmed defendant’s conviction. State v. Ates, 426 N.J. Super. 521 (App. Div. 2012). The panel rejected defendant’s argument about the Act’s “extraterritorial” reach and noted that the statute “requires a nexus with New Jersey by insisting that, at the very least, the listening post be located in New Jersey.” Id. at 533. The panel observed, “this does not ‘usurp [f]ederal authority’ because federal law permits the same thing.” Ibid. The panel also rejected defendant’s other arguments: that the trial court imposed an inadequate remedy for the State’s unlawful interception of an attorney-client conversation; that the prosecutor made improper remarks during summation about a defense medical expert; that it was prejudicial error to admit in evidence a reenactment of a drive from New Jersey to Louisiana; and that the cumulative effect of the above errors required reversal. Id. at 531, 534-38. The Court granted defendant’s petition for certification. 213N.J. 389 (2013).

HELD: New Jersey’s Wiretap Act is constitutional under both the federal and state constitutions. The Legislature’s focus on the “point of interception” is a rational approach because the inherent mobility of cell phones would make it impractical, if not impossible in some instances, for law enforcement to intercept cell phone conversations if agents could only rely on orders issued in the state where a call was placed or received.

1. The United States and New Jersey Constitutions’ protections against unreasonable searches and seizures extend to the interception of phone conversations. In 1967, the United States Supreme Court issued two landmark opinions that addressed electronic surveillance of phone conversations under the Fourth Amendment and outlined principles to safeguard individual privacy rights in that area. See Berger v. New York, 388 U.S. 41 (1967); Katz v. United States, 389 U.S. 347 (1967). Congress responded the following year by enacting Title III of the Omnibus Crime and Safe Streets Act, 18 U.S.C.A. §§ 2510–2520, which established minimum standards for federal and state law enforcement officials to follow when seeking to intercept wire, oral, and electronic communications. In 1968, the New Jersey Legislature enacted the Wiretap Act and modeled it after Title III.

2. The Wiretap Act empowers the State to apply to a judge for an order authorizing law enforcement officers, who are investigating particular crimes, to intercept wire, electronic, and oral communications. N.J.S.A. 2A:156A-8. Before judges can enter a wiretap order, they must find probable cause to believe (1) that a listed, serious offense under New Jersey law has been, is being, or will be committed; (2) that communications about the criminal activity in New Jersey may be obtained through the interception; and (3) that normal investigative procedures have failed, are unlikely to succeed, or are too dangerous. N.J.S.A. 2A:156A-10a-c. An “intercept” is “the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device.”N.J.S.A. 2A:156A-2c. A wiretap order “may be executed at any point of interception within the jurisdiction of an investigative or law enforcement officer executing the order.” N.J.S.A. 2A:156A-12h. A “point of interception” is the site where the “officer is located at the time the interception is made” -- commonly referred to as the “listening post.” N.J.S.A. 2A:156A-2v. The plain language of the Wiretap Act thus authorizes investigators to intercept out-of-state calls at a listening post in New Jersey.

3. Because the State can only prosecute crimes that occur within its territorial borders, the first two findings that a judge must make before issuing a wiretap order connect the interception of communications to activity in New Jersey. See N.J.S.A. 2A:156A-10a-b. In addition, the Act requires that the listening post be located within New Jersey. See N.J.S.A. 2A:156A-12h. Therefore, the Wiretap Act does not unconstitutionally permit the interception of communications with no connection to New Jersey.

4. Because the Wiretap Act is closely modeled after Title III, the Court gives careful consideration to federal decisions interpreting the federal statute. Federal circuit courts have consistently upheld wiretaps based on the location of the listening post, and no circuit court has found Title III unconstitutional on that ground. For example, in United States v. Rodriguez, 968 F.2d 130 (2d Cir.), cert. denied, 506 U.S. 847 (1992), the Second Circuit found that because Title III defines interception as the “aural” acquisition of the contents of the call, and because “aural,” by definition, “‘pertain[s] to the ear or the sense of hearing,’” the place of interception could be where the police first monitored or listened to the communication. Id. at 136. (citation omitted). The court in Rodriguez also noted that allowing a court where the listening post is located to authorize wiretaps in multiple jurisdictions helps protect individual privacy rights by avoiding unnecessary or unnecessarily long interceptions. Id. (citations omitted). Other federal courts have followed Rodriguez and held that judges can authorize wiretaps when the listening post -- and thus the interception -- is within the court’s jurisdiction, even if the phone is located elsewhere. The majority of courts that have interpreted state wiretap laws also agree. For example, in Davis v. State, 43 A.3d 1044 (Md. 2012), Maryland’s highest court upheld a wiretap order allowing officials in Maryland to monitor a cell phone located in Virginia, finding that if the listening post is located within the wiretap court’s territorial jurisdiction, then “neither the physical location of the mobile phone at the time the call was placed” nor “the recipient of the call are material.” Id. at 1048. The Maryland court also noted that a different outcome would present “an enormous logistical and technological challenge to law enforcement” officials if an investigation involved a cell phone that crossed state lines. Id. at 1054. The Court agrees with the many federal and state courts that have allowed judges in the state where the listening post is located to authorize a wiretap.  
5. Drawing an analogy to the requirements for searching a home, defendant contends that law enforcement officers must seek a search warrant from a judge in the state where the phones are located. There are obvious differences between searching a fixed location, like a home, and intercepting a phone call on a mobile phone. If out-of-state intercepts could only be authorized by a judge in the jurisdiction where the phones are located, then the inherent mobility of the modern cell phone could defeat even the most responsible efforts to monitor it. In short, defendant’s reading of the Act would make it impractical to intercept cell phone conversations. Viewed in that light, the Act’s definition of “point of interception” -- the site where an officer is located when an interception is made, N.J.S.A. 2A:156A-2v -- makes rational sense. In addition, defendant’s privacy rights were not violated because a New Jersey judge, rather than judges in the states where the phones were located, reviewed his wiretap applications. Defendant’s rights would be protected if the applications were reviewed in New Jersey, Florida, or Louisiana because judges in each state must ensure that there is an adequate basis for issuing a wiretap order. At a minimum, the applications would have to meet the requirements of Title III. 
6. As to defendant’s several other challenges, the Court affirms substantially for the reasons stated in the Appellate Division’s opinion.Ates, 426 N.J. Super. at 534-38. 

December 4, 2015

53:1-20.37 Retaining of all DNA profile information.

53:1-20.37  Retaining of all DNA profile information.2.  a.  Notwithstanding any other provision of law to the contrary, the Division of State Police in the Department of Law and Public Safety shall retain all DNA profile information from biological samples  taken from a convicted person pursuant to the provisions of  section 1 of  P.L.2001, c.377 (C.2A:84A-32a) and may use the profile information in the investigation and prosecution of other crimes.  The DNA profile information shall be added to, stored and maintained in the State DNA databank established pursuant to the "DNA Database and Databank Act of 1994," P.L.1994, c.136 (C.53:1-20.17 et seq.) and shall be forwarded to the FBI for inclusion in CODIS.

b.The Attorney General shall adopt rules governing the procedures to be used in the analysis and storage of DNA profile information obtained in accordance with the provisions of P.L.2001, c.377 (C.2A:84A-32a et al.).

53:1-20.30. Lien against property, income of offender

53:1-20.30.  Lien against property, income of offender
2. The State shall have a lien against the property and income of each offender for whom DNA testing is conducted pursuant to section 1 of this act.  The lien when properly filed as set forth herein shall have priority over all unrecorded encumbrances except for any restitutions, assessments or fines which the offender has been sentenced to pay.

L.1997,c.51,s.2.
 53:1-20.31.  Form of lien

3.  The lien shall be in a form to be prescribed by the Attorney General and shall contain the name of the offender who is the owner of the real property which is the subject of the lien.  The lien shall be signed by the Attorney General or a designee assigned by the Attorney General. 

L.1997,c.51,s.3.
 
53:1-20.32.  Filing of lien

4.  The lien shall be filed with the clerk of the county or register of deeds and mortgages, as the case may be, and shall immediately attach to and become binding upon all real property in the ownership of the offender.

If it is believed that the offender is the owner of real property within the State, but the exact location of same is not known, then the lien may be filed with the clerk of the Superior Court and shall become binding upon all real property of the offender wherever situate within the State.

L.1997,c.51,s.4.
 
53:1-20.33.  Forwarding of notice of lien, effect
.  If it is found that the offender is possessed of any goods, rights, credits, chattels, moneys or effects which are held by any person, firm or corporation for the present or subsequent use of the offender, then the lien provided for herein, or a notice of the existence thereof, may be forwarded by registered mail to the person, firm, or corporation and shall become binding upon any property rights so held.  The person, firm or corporation shall thereafter be precluded from disposing of the property rights until the lien is satisfied or until the holder of the lien consents thereto.

Any person, firm or corporation disposing of any such property or moneys after receipt of notice of the lien shall be liable to the State for the value of the property or moneys of which disposition has been made.

L.1997,c.51,s.5.
 53:1-20.34.  Provision of books for entering lien, recordation

6.  The clerk of the county or register of deeds and mortgages, or clerk of the Superior Court, as the case may be, shall provide suitable books in which he shall enter the liens filed hereunder properly indexed in the name of the offender.

All liens and other papers incidental thereto required hereunder shall be received and recorded by the clerk of the county, register of deeds and mortgages, or clerk of the Superior Court, as the case may be, without payment of fees.

L.1997,c.51,s.6.
 
53:1-20.35.  Discharge of lien by the State

7.  To discharge any lien or liens filed hereunder, the Attorney General or an agent designated by the Attorney General shall file with the clerk of the county, register of deeds and mortgages or clerk of the Superior Court, as the case may be, a duly acknowledged certificate setting forth the fact that the State desires to discharge the lien of record.

The Attorney General or an agent designated by the Attorney General is authorized to compromise for settlement any lien filed under the provisions of this act.  A memorandum of the compromise and settlement signed by the Attorney General  shall be sufficient authorization for a complete discharge of the lien.

L.1997,c.51,s.7.
 
53:1-20.36.  Discharge of lien by a person
8.  Any person desiring to secure immediate discharge of any lien may deposit with the court cash in sufficient amount to cover the amount of the lien or post a bond in an amount and with sureties to be approved by said court.  Upon proper notice of this fact being given to the Attorney General a satisfaction of said lien shall be filed forthwith with the county clerk or register of deeds and mortgages as the case may be.

L.1997,c.51,s.8.

53:1-20.29 Liability for cost of certain blood or biological sample testing.

53:1-20.28a "New Jersey Forensic DNA Laboratory Fund."

53:1-20.27. Confidentiality

53:1-20.26. Wrongful disclosure of information

53:1-20.25 Expungement of records from State records; conditions.

53:1-20.25  Expungement of records from State records; conditions.
9. a. (1) (i) Any person whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that the conviction that resulted in the inclusion of the person's DNA record or profile in the State database or the inclusion of the person's DNA sample in the State databank has been reversed and the case dismissed.  The person, either individually or through an attorney, may apply to the court for expungement of the record.  A copy of the application for expungement shall be served on the prosecutor for the county in which the conviction was obtained not less than 20 days prior to the date of the hearing on the application.  A certified copy of the order reversing and dismissing the conviction shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon that conviction.

(ii)Any person whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that all charges resulting from the arrest that provided the basis for inclusion of the person's DNA record or profile in the State database or the inclusion of the person's DNA sample in the State databank have been dismissed or have been resolved through an acquittal at trial.  The person, either individually or through an attorney, may apply to the court for expungement of the record.  A copy of the application for expungement shall be served on the prosecutor for the county in which the charge was brought not less than 20 days prior to the date of the hearing on the application.  A certified copy of the order of dismissal shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon the arrest which resulted in those charges.

(2) (i) Any juvenile adjudicated delinquent whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that the adjudication that resulted in the inclusion of the juvenile's DNA record or profile in the State database or the inclusion of the juvenile's DNA sample in the State databank has been reversed and the case dismissed.  The juvenile adjudicated delinquent, either individually or through an attorney, may apply to the court for expungement of the record.  A copy of the application for expungement shall be served on the prosecutor for the county in which the conviction was obtained not less than 20 days prior to the date of the hearing on the application.  A certified copy of the order reversing and dismissing the adjudication shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon that conviction.

(ii)Any juvenile whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that all charges resulting from the arrest that provided the basis for inclusion of the juvenile's DNA record or profile in the State database or the inclusion of the juvenile's DNA sample in the State databank have been dismissed or have resulted in an acquittal at trial.  The juvenile, either individually or through an attorney, may apply to the court for expungement of the record.  A copy of the application for expungement shall be served on the prosecutor for the county in which the charge was brought not less than 20 days prior to the date of the hearing on the application.  A certified copy of the order of dismissal shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon the arrest which resulted in those charges.

(3) (i) Any person found not guilty by reason of insanity, or adjudicated not delinquent by reason of insanity, whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that the judgment that resulted in the inclusion of the person's DNA record or profile in the State database or the inclusion of the person's DNA sample in the State databank has been reversed and the case dismissed.  The person, either individually or through an attorney, may apply to the court for expungement of the record.  A copy of the application of expungement shall be served on the prosecutor for the county in which the judgment was obtained not less than 20 days prior to the date of the hearing on the application.  A certified copy of the order reversing and dismissing the judgment shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon that conviction.

(ii)Any person found not guilty by reason of insanity, or adjudicated not delinquent by reason of insanity, whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that all charges resulting from the arrest that provided the basis for inclusion of the person's DNA record or profile in the State database or the inclusion of the person's DNA sample in the State databank have been dismissed or have been resolved through an acquittal at trial.  The person, either individually or through an attorney, may apply to the court for expungement of the record.  A copy of the application for expungement shall be served on the prosecutor for the county in which the charge was brought not less than 20 days prior to the date of the hearing on the application.  A certified copy of the order of dismissal shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon the arrest which resulted in those charges.

b.Upon receipt of an order of expungement and unless otherwise provided, the division shall purge the DNA record and all other identifiable information from the State database and the DNA sample stored in the State databank covered by the order.  If the entry in the database reflects more than one conviction or adjudication, that entry shall not be expunged unless and until the person or the juvenile adjudicated delinquent has obtained an order of expungement for each conviction or adjudication on the grounds contained in subsection a. of this section.  If one of the bases for inclusion in the DNA database was other than conviction or adjudication, that entry shall not be subject to expungement.

53:1-20.24. Use of State database

53:1-20.24.  Use of State database      8.  a.  It shall be the duty of the division to store, analyze, classify and file in the State database and with the FBI for inclusion in CODIS the DNA record of identification characteristic profiles of DNA samples submitted pursuant to section 4 of this act and to make such information available from the State database as provided in this section.  The division may contract out DNA typing analysis to a qualified DNA laboratory that meets established guidelines.  The results of the DNA profile of individuals in the State database shall be made available to local, State or federal law enforcement agencies, and approved crime laboratories which serve these agencies, upon written or electronic request and in furtherance of an official investigation of a criminal offense.  These records shall also be available upon receipt of a valid court order issued by a judge of the Superior Court directing the division to release these results to appropriate parties not listed above. The division shall maintain a file of such court orders. 

   b.   The division shall adopt rules governing the methods of obtaining information from the State database and CODIS and procedures for verification of the identity and authority of the requester. 

   c.   The division shall create a separate population database comprised of records obtained pursuant to this act after all personal identification is removed.  Nothing shall prohibit the division from sharing or disseminating population databases with other law enforcement agencies, and crime laboratories that serve these agencies, upon written or electronic request and in furtherance of an official investigation of a criminal offense, or other third parties deemed necessary to assist with statistical analysis of the population databases.  The population database may be made available to and searched by other agencies participating in the CODIS system.  

53:1-20.23. Rules; procedures

53:1-20.22 Drawing of DNA samples; conditions.

53:1-20.22  Drawing of DNA samples; conditions.
6. a.  Each blood sample required to be drawn or biological sample collected pursuant to section 4 of P.L.1994, c.136 (C.53:1-20.20) from persons who are incarcerated shall be drawn or collected at the place of incarceration.  The law enforcement agency that effects an arrest for which DNA testing is required pursuant to P.L.2011, c.104 shall collect a DNA sample from the arrestee prior to the arrestee's release or incarceration.  DNA samples from persons who are not sentenced to a term of confinement shall be drawn or collected at a prison or jail unit to be specified by the sentencing court.  DNA samples from persons who are adjudicated delinquent shall be drawn or collected at a prison or jail identification and classification bureau specified by the family court. 

b.Only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory or medical technician, phlebotomist or other health care worker with phlebotomy training shall draw any blood sample to be submitted for analysis, and only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory or medical technician or person who has received biological sample collection training in accordance with protocols adopted by the Attorney General, in consultation with the Department of Corrections, shall collect or supervise the collection of any other biological sample to be submitted for analysis.  No civil liability shall attach to any person authorized to draw blood or collect a biological sample by this section as a result of drawing blood or collecting the sample from any person if the blood was drawn or sample collected according to recognized medical procedures.  No person shall be relieved from liability for negligence in the drawing or collecting of any DNA sample.  No sample shall be drawn or collected pursuant to section 4 of P.L.1994, c.136 (C.53:1-20.20) if the division has previously received a blood or biological sample from the convicted person or the juvenile adjudicated delinquent which was adequate for successful analysis and identification.  

53:1-20.21 Purposes of DNA samples.


53:1-20.21  Purposes of DNA samples.
5.Tests shall be performed on each blood or other biological sample submitted pursuant to section 4 of P.L.1994, c.136 (C.53:1-20.20) in order to analyze and type the genetic markers contained in or derived from the DNA.  Except insofar as the use of the results of these tests for such purposes would jeopardize or result in the loss of federal funding, the results of these tests shall be used for the following purposes: 

a.For law enforcement identification purposes;

b.For development of a population database;

c.To support identification research and protocol development of forensic DNA analysis methods; 

d.To assist in the recovery or identification of human remains from mass disasters or for other humanitarian purposes; 

e.For research, administrative and quality control purposes;

f.For judicial proceedings, by order of the court, if otherwise admissible pursuant to applicable statutes or rules;

g.For criminal defense purposes, on behalf of a defendant, who shall have access to relevant samples and analyses performed in connection with the case in which the defendant is charged; and 

h.For such other purposes as may be required under federal law as a condition for obtaining federal funding. 

The DNA record of identification characteristics resulting from the DNA testing conducted pursuant to this section shall be stored and maintained in the State DNA database and forwarded to the FBI for inclusion in CODIS.  The DNA sample itself will be stored and maintained in the State DNA databank.