STATE OF NEW JERSEY, ET AL. VS. THOMAS CULLEN, T.C., ET AL. A-3001-09T1

STATE OF NEW JERSEY, ET AL. VS. THOMAS CULLEN, T.C.,

ET AL.

A-3001-09T1

The Endangered Nongame Species Conservation Act (ENSCA),

N.J.S.A. 23:2A-1 to -15, makes it unlawful to "harass" a

"species or subspecies of wildlife" declared by the Department

of Environmental Protection to be endangered. As used in ENSCA,

the term "harass" means an intentional or negligent act which

creates the likelihood of injury by annoying the species to such

an extent as to significantly disrupt its normal behavioral

patters. 03-05-12

STATE OF NEW JERSEY VS. SAEED T. ELLIS A-0156-09T4

STATE OF NEW JERSEY VS. SAEED T. ELLIS

A-0156-09T4

We vacate a drug "kingpin" conviction, finding that the

State failed to prove the requisite elements of that firstdegree

offense beyond a reasonable doubt, namely defendant's

elevated status and supervisory control within an organized drug

trafficking network.

03-05-12

STATE OF NEW JERSEY, IN THE INTEREST OF K.O. A-0238-09T1

STATE OF NEW JERSEY, IN THE INTEREST OF K.O.

A-0238-09T1

The panel interpreted N.J.S.A. 2A:4A-44(d)(3) to allow the

imposition of an extended term for a juvenile on the second

adjudication for a qualifying offense, as long as the juvenile

had previously been sent to an adult or juvenile facility. We

rejected the juvenile's argument that the statute required two

prior qualifying offenses. 03-01-12

STATE OF NEW JERSEY VS. EDWARD F. SYLVIA, JR. A-3477-10T1

STATE OF NEW JERSEY VS. EDWARD F. SYLVIA, JR.

A-3477-10T1

Defendant was found guilty of driving while under the

influence, N.J.S.A. 39:4-50, and refusal to submit to a breath

test, N.J.S.A. 39:4-50.4a. On appeal to the Law Division,

defendant first challenged the territorial jurisdiction of the

municipal court. We conclude that the claim should be assessed

under the standards applicable in criminal prosecutions as set

forth in State v. Denofa, 187 N.J. 24, 44, 46 (2006), and find

the evidence of jurisdiction adequate. 02-22-12

02-15-12

STATE OF NEW JERSEY IN THE INTEREST OF A.C.

A-5308-10T4

N.J.S.A. 2A:4A:40, the provision of the Code of Juvenile

Justice that denies the right to a jury trial in adjudications

under the Juvenile Code, is constitutional. The application of

Megan's Law to juvenile sex offenders does not give rise to a

jury trial right for juveniles accused of sex offenses. Whether

to modify Megan's Law, in light of current information about its

impact on juvenile offenders, is a policy decision for the

Legislature.

State v. John Wessells (064599; A-27-09)

State v. John Wessells (064599; A-27-09)

Because the defendant has not yet been tried for the

crimes with which he has been charged, he is entitled

to the benefit of the United States Supreme Court’s

decision in Maryland v. Shatzer, ___ U.S. ___, 130 S.

Ct. 1213, 175 L. Ed. 2d 1045 (2010), and the

statements he made during his second interrogation

must therefore be suppressed. 2-29-12

State v. Frensel Gaitan (067613; A-109-10) State v. Rohan Goulbourne (068039; A-129-10)

State v. Frensel Gaitan (067613; A-109-10)

State v. Rohan Goulbourne (068039; A-129-10)

Padilla represents a new constitutional rule of law

that, for Sixth Amendment purposes, is not entitled to

retroactive application on collateral review.

Although Nunez-Valdez governs the standard of attorney

performance in these cases, defendants are not

entitled to relief under that decision because neither

defendant was affirmatively misadvised by counsel or

established prejudice. 2-28-12

State v. Derrick Harris, Sr. (067348; A-103-10)

State v. Derrick Harris, Sr. (067348; A-103-10)

The trial court did not abuse its discretion when it

viewed defendant’s intervening convictions for

disorderly persons offenses as removing the bar to

admission of defendant’s prior criminal convictions as

too remote and, thus, determined that defendant’s

prior criminal convictions would be admissible if he

testified at trial. 2-27-12

STATE OF NEW JERSEY VS. NICKOLAS AGATHIS A-2211-09T4

STATE OF NEW JERSEY VS. NICKOLAS AGATHIS           A-2211-09T4 

     Defendant pled guilty to the domestic violence offense of simple assault and was placed on probation conditioned upon forfeiting his firearms identification card.  Relying on State v. Nunez-Valdez, 200 N.J. 129 (2009), defendant filed a post conviction relief petition, arguing he received ineffective assistance of counsel when his attorney incorrectly informed him that he could regain his firearms identification card after completing the term of probation. 

     Guided by Rule 3:22-5, the PCR court denied defendant's petition without conducting an evidentiary hearing, concluding that it was bound by our earlier opinion affirming defendant's conviction on direct appeal.  Applying the standard articulated by the Court in Nunez-Valdez, we reversed and remanded for the PCR court to conduct an evidentiary hearing. Because N.J.S.A. 2C:58-3(c) rendered defendant permanently ineligible to obtain a firearms identification card, defendant has shown that his trial counsel's performance fell below the standard expected of an attorney licensed to practice law in this State.  Under these circumstances, the PCR court must determine whether there is a reasonable probability that, but for counsel's errors, defendant would not have pled guilty and would have insisted on going to trial.  02-01-12  

STATE VS. ELLEN HEIN A-5858-09T2/A-1720-10T4

STATE VS. ELLEN HEIN           A-5858-09T2/A-1720-10T4 

     In these consolidated appeals we reverse the Law Division's finding that defendant was guilty of violating a municipal ordinance requiring an inspection of her property.  We do so on the basis of evolved Fourth Amendment jurisprudence viewed under the lens of our State constitution and reach the conclusion that the ordinance, as applied to defendant, is unconstitutional.  We affirm the Law Division's separate finding the defendant was guilty of violating three local provisions of a property maintenance code.  01-31-12  

State v. Kevin Jerome Hudson (066660; A-64-10)

 State v. Kevin Jerome Hudson (066660; A-64-10)           [This is a companion case to State v. Sally A.           McDonald, also decided today.] 

          In this case in which an indictment was severed,           resulting in two trials and two sentencing           proceedings, and the first sentencing court imposed an           extended-term prison sentence, it was error for the           second court also to impose an extend-term sentence.           The time and sequence of the offenses and sentencings           brought the defendant squarely under N.J.S.A. 2C:44-           5(b)(1)’s proscription against multiple extended-term           sentences. 2-6-12   

State v. Sally A. McDonald (066773; A-56-10)

State v. Sally A. McDonald (066773; A-56-10)           [This is a companion case to State v. Kevin Jerome           Hudson, also decided today.] 

          For the reasons expressed in State v. Hudson, also           decided today, the majority of the Court adheres to a           plain-meaning reading of the language of N.J.S.A.           2C:44-5(b)(1), and finds that the sentencing court           erred by imposing an extended-term sentence on           defendant Sally A. McDonald for an offense that she           pled guilty to second in time but that was committed           earlier than the imposition of the extended-term           sentence that she presently is serving. 2-6-12    

State v. Danny Lazo (066199; A-14-10)

State v. Danny Lazo (066199; A-14-10) 

          The officer’s testimony about the photo array had no           independent relevance, merely served to bolster the           victim’s account, and should not have been admitted at           trial in light of the principles outlined in State v.           Branch, 182 N.J. 338 (2005).  2-1-12    

Police use of GPS device on car violates 4th Amendment United State v Jones

Police use of GPS device on car violates 4^th Amendment

United State v Jones __ US ___

January 23, 2012 No. 10–1259.

The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.

(a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.

(b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165; Soldal v. Cook County, 506 U. S. 56. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position.

STATE OF NEW JERSEY VS. S.K. A-1488-10T1

STATE OF NEW JERSEY VS. S.K.
 
A-1488-10T1
 
Defendant's conviction for violating a domestic violence
 
restraining order is vacated and the complaint dismissed because
 
the provision of the order prohibiting defendant from "any other
 
place where plaintiff is located" is overly broad and not
 
authorized by the Prevention of Domestic Violence Act, and also
 
because defendant did not provide a sufficient factual basis for
 
his guilty plea and conviction.

IN THE MATTER OF THE APPLICATION FOR EXPUNGEMENT OF THE CRIMINAL RECORDS OF MARINO LOBASSO A-3577-10T4

IN THE MATTER OF THE APPLICATION FOR EXPUNGEMENT OF           THE CRIMINAL RECORDS OF MARINO LOBASSO 

A-3577-10T4

     We affirmed an order denying expungement of a third-degree eluding conviction after five years.  Appellant relied on L. 2009, c. 188, § 1, codified at N.J.S.A. 2C:52-2a(2), which reduced the waiting period for expunging certain criminal convictions from ten to five years provided the court finds "in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction."  Construing the new law, we concluded that expungement before ten years is reserved for compelling but not necessarily rare or unusual cases.  We held that a trial court should weigh case-specific facts regarding the nature of the offense, the offender's character and conduct, and other relevant factors.  Related to an "offender's character and conduct," a trial court may consider facts of an arrest that did not result in conviction, if supported by cognizable evidence.  Regarding the "nature of the offense," a trial court may consider the grade of the offense, and related circumstances.  Additionally, a trial court may consider:  whether the petitioner engaged in activities post-conviction to limit the risk of re-offending; the petitioner's character and conduct before conviction; and the conviction record's impact on the petitioner's "reentry" efforts.   01-10-12  

State v. Roy Friedman (066332; A-18/19-10)

State v. Roy Friedman (066332; A-18/19-10) 

          When a defendant has been sentenced to consecutive           custodial terms under NERA, the periods of parole           supervision that follow must be served consecutively.           There is no need to determine whether Hess applies           here because the trial court recognized its inherent           sentencing authority, engaged in its own Yarbough           analysis, and did not abuse its discretion in           concluding that it was appropriate to impose           consecutive sentences for three separate assaults           defendant admitted committing upon his wife during           three separate periods of time.  1-24-12   

State v. James J. Mauti (067006; A-48-10)

  State v. James J. Mauti (067006; A-48-10) 

          The wife of defendant James J. Mauti was entitled to           exercise the spousal privilege of refusing to testify           in his criminal trial because there was no conflict           between her exercise of the privilege and a           constitutional right, and she did not waive her right           to exercise the privilege.  1-23-12 

State v. Demetrius Diaz-Bridges

State v. Demetrius Diaz-Bridges (067065; A-49/50-10) 

          Because neither defendant’s statements about his           desire to speak with his mother nor any of his other           statements were assertions of his constitutionally-           protected right to silence, the suppression of any           portion of his confession was in error.  1-12-12   

Right to counsel not established by desire to speak with mother State v. Demetrius Diaz-Bridges

Right to counsel not established by desire to speak with mother

State v. Demetrius Diaz-Bridges (067065; A-49/50-10)

Because neither defendant’s statements about his

desire to speak with his mother nor any of his other

statements were assertions of his constitutionallyprotected

right to silence, the suppression of any

portion of his confession was in error. 1-12-12

STATE OF NEW JERSEY VS. DAVID BAYLOR A-0054-09T1

STATE OF NEW JERSEY VS. DAVID BAYLOR

A-0054-09T1

The life sentences without parole imposed in this matter do

not violate the Ex Post Facto Clauses of the Federal and State

Constitutions because defendant was convicted of murders that he

committed in 2005, and the murder statute in effect at that time

required the imposition of life sentences without parole where,

as here, the jury found at least one statutory aggravating

factor. 12-29-11

STATE OF NEW JERSEY VS. SHAFFONA MORGAN A-4468-08T4

STATE OF NEW JERSEY VS. SHAFFONA MORGAN

A-4468-08T4

In this appeal, we hold that a series of ex parte

communications between the trial judge and the jury did not

compromise the integrity of the jury deliberations requiring the

reversal of defendant's conviction. We also hold that, under

the circumstances of this case, the court did not violate

defendant's right to a fair trial or impugn the integrity of the

jury's deliberative process by permitting the jurors to take

copies of sections of the charge with them over a weekend. We

nevertheless caution trial courts against engaging in such a

practice without expressed authority and guidance from the

Supreme Court. We refer this issue to the Civil and Criminal

Practice Committees to develop recommendations to the Supreme

Court to either explicitly forbid the practice, or permit it

under specific guidelines.

12-29-11