State v. Roger Emmons

12-07-07 A-5689-05T1

N.J.S.A. 2C:29-7, which proscribes a defendant's failure to
appear either in court or for service of a sentence, is
constitutional. Although a jury instruction in the language of
the second sentence of N.J.S.A. 2C:29-7 would impose an
unconstitutional burden upon a defendant to disprove the
"knowing" mental culpability element of the offense, this
constitutional defect can be avoided by a jury instruction that
omits any reference to a defendant having the burden to prove
that his failure to appear was "not knowingly."

State of New Jersey v. Gary Gaither, a/k/a Gary W. Gaither

11-16-07 A-3063-05T4

Defendant appealed an order denying his petition for postconviction
relief (PCR) alleging ineffective assistance of
appellate counsel. Defendant argued that his appellate
counsel's failure to communicate with him regarding his appeal
constituted ineffective assistance of counsel per se. Secondly,
defendant sought to extend the holding in State v. Rue, 175 N.J.
1 (2002), to appellate counsel. In Rue, the Supreme Court held
that an attorney representing a defendant in a PCR petition is
required to communicate with his client, investigate the
client's claim, and advance all arguments requested by the
client.
We held that the two-prong Strickland analysis is to be
used in such cases and, therefore, that the failure to
communicate is not per se ineffective assistance of counsel. We
also declined to apply Rue to appellate counsel, finding it was
inappropriate and unnecessary.

State v. Daniel Luna

12-19-07 (A-68-06)

It is not possible to infer that defendant knowingly waived his
right to be present at trial because the trial court did not
conduct an inquiry to determine whether defendant willingly
absented himself. For that reason, defendant’s convictions must
be reversed.

State v. Stacey Froland-Kindt

12-12-07 (A-8-06)

A person who acts with the permission of a parent is not guilty
of non-consent kidnapping unless the person uses force, threat
or deception.

State v. Ambrose Harris

12-4-07 (A-95-06)

Defendant Ambrose Harris is not entitled to any relief under
State v. DiFrisco. His petition for post-conviction relief is
denied. To the extent that Harris seeks an extension of
DiFrisco, the application also is denied.

State v. Thomas Lykes

11-5-07 (A-80-06)

Because Lykes placed his knowledge as to the contents of the
four vials directly at issue, N.J.R.E. 404(b) does not bar the
limited impeachment use of Lykes’ admission of having earlier
held cocaine vials and the questions allowed in this area were
proper. Furthermore, taken as a whole, the trial court’s
response to the jury’s question in respect of Lykes’ knowledge
as to the contents of the vials fairly and adequately instructed
the jury and, therefore, was improper.

State v. Howard Parks

10-25-07 (A-39-06)

The amended Three Strikes Law applies to defendant’s sentencing.
Because defendant “committed” only one predicate offense prior
to the subject offense, he did not qualify for enhanced
sentencing under the Three Strikes Law.

State v. A.O.

11-27-07 A-5388-04T4

Defendant was convicted of aggravated sexual assault based
on the uncorroborated testimony of a child witness who had
recanted her accusation and then withdrawn the recantation.
Prior to his arrest, defendant entered into a polygraph
stipulation without advice of counsel. He failed the test, and
the test result was admitted at his trial. We reversed his
conviction, holding that inducing an uncounseled defendant to
sign a stipulation agreeing that polygraph results will be
admissible at trial, violates the defendant's Sixth Amendment
right to trial counsel. We also held that the trial court
should have held a State v. Guenther hearing before barring
defendant from introducing evidence that a few months after
accusing defendant, the victim-witness accused another man of
molesting her and then recanted her accusation. We concluded
Guenther applies to later, as well as prior, recanted
accusations. Judge Weissbard filed a concurring opinion.

State v. Gary Gaither, a/k/a Gary W. Gaither

11-16-07 A-3063-05T4

Defendant appealed an order denying his petition for postconviction
relief (PCR) alleging ineffective assistance of
appellate counsel. Defendant argued that his appellate
counsel's failure to communicate with him regarding his appeal
constituted ineffective assistance of counsel per se. Secondly,
defendant sought to extend the holding in State v. Rue, 175 N.J.
1 (2002), to appellate counsel. In Rue, the Supreme Court held
that an attorney representing a defendant in a PCR petition is
required to communicate with his client, investigate the
client's claim, and advance all arguments requested by the
client.

We held that the two-prong Strickland analysis is to be
used in such cases and, therefore, that the failure to
communicate is not per se ineffective assistance of counsel. We
also declined to apply Rue to appellate counsel, finding it was
inappropriate and unnecessary.

State v. Marcus Cassady

10-26-07 A-6057-05T4

A jury found defendant guilty of robbery. Rejecting
defense counsel's claim that the jury could conclude that
defendant did not have the requisite purpose to put the bank
teller in fear of immediate bodily injury, the trial court
denied defendant's request for a jury instruction on theft.
Although the evidence was adequate to support defendant's
conviction for robbery, it also provided a rational basis for an
acquittal on that charge and conviction of theft. Accordingly,
we reverse.

Judge Fuentes is filing a dissent.

State v. Michele Dixon

10-24-07 A-2419-04T4

For purposes of the bias intimidation statute, N.J.S.A.
2C:16-1, the term "handicap" should be defined with reference to
the Law Against Discrimination, N.J.S.A. 10:5-5q, rather than by
using a dictionary definition of the term.