J.B., ET AL. VS. NEW JERSEY STATE PAROLE BOARD

J.B., ET AL. VS. NEW JERSEY STATE PAROLE BOARD

A-5435-10T2/ A-1459-11T2/ A-2138-11T3/ A-2448-11T2/A-3256-11T2(CONSOLIDATED)

Appellants are individuals who have been convicted of sexual offenses, have completed their respective prison terms, and are now being monitored by respondent New Jersey State Parole Board as offenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"). N.J.S.A. 2C:43-6.4. They challenge the constitutionality of certain terms of supervision the Parole Board has imposed upon them and other released sex offenders subject to CSL or PSL, mainly (1) restrictions on access to social media or other comparable web sites on the Internet; and (2) mandated submission to periodic polygraph examinations.

In the published portion of our opinion, we reject appellants' facial challenges to the Internet access restrictions, subject to their right to bring future "as-applied" challenges if they avail themselves of the Parole Board's procedures for requesting specific permission for more expanded Internet access and are then denied such permission.

As indicated in the unpublished portion of our opinion, we do not decide at this time the merits of appellants' constitutional attack upon the polygraph requirements. Instead, we refer that subject matter to the trial court for supplemental proceedings, pursuant to Rule 2:5-5(b), for the development of an appropriate record, including scientific or other expert proofs, and for fact-finding. Such proofs and fact-finding shall focus upon the alleged therapeutic, rehabilitative, and risk management benefits of polygraph testing when it is conducted within the specific context of post-release oversight of sex offenders. 11-26-13

 

State of New Jersey v. Troy N. Tate (A-99-11; 069314)

 State of New Jersey v. Troy N. Tate (A-99-11; 069314)

 A conviction for possession of a weapon for an
unlawful purpose must merge with a conviction for
aggravated manslaughter when the evidence does not
support the existence of another unlawful purpose for
possession of the weapon. 11-12-13

STATE OF NEW JERSEY VS. ANGELIQUE STUBBS ET AL.

 STATE OF NEW JERSEY VS. ANGELIQUE STUBBS ET AL.
AND STATE VS. JULES L. STUBBS ET AL.
 A-1199-10T2/A-2942-10T2(CONSOLIDATED)

Husband and wife, Jules and Angelique Stubbs, were
convicted of various CDS-related offenses. As to the wife,
we remand for a hearing as to the admissibility of the form
United States Currency Seizure Report, which she signed,
pertaining to $4831 in cash seized from defendants' home
along with a substantial quantity of drugs. The State
argued that the wife, by signing the form, claimed
ownership of the cash, which demonstrated she joined in her
husband's drug-related activities. We conclude the form
must be viewed as an adoptive admission under N.J.R.E.
803(b)(2); and, since the form was a statement of a
criminal defendant, N.J.R.E. 803(b), the State as proponent
was required to show, in a preliminary hearing pursuant to
N.J.R.E. 104(c), that the statement was admissible. To do
so, the State must show the wife was aware of and
understood the contents of the allegedly adopted statement,
and she unambiguously assented to it. We order a new trial
for the wife only if the trial court determines on remand
that the form was not properly admitted as an adoptive
admission. 11-07-13

State of New Jersey v. Amir A. Andrews

State of New Jersey v. Amir A. Andrews
(A-105-11;069594)

Gilmore’s single, bright-line remedy has proven
ineffective to fully and fairly respond to the use of
constitutionally impermissible peremptory challenges.
The Court modifies Gilmore and hereby permits trial
judges to choose from a broader set of remedies to
address the impermissible use of peremptory
challenges. 10-28-13

State of New Jersey v. Gene Hinton (A-3/4-12; 070386)

 State of New Jersey v. Gene Hinton (A-3/4-12; 070386)

 Where, as here, an eviction proceeding has advanced to
the point that a warrant of removal has been executed,
a tenant does not have a reasonable expectation of
privacy in the premises. Therefore, the police action
in Hinton’s apartment was not a “search” under either
the Fourth Amendment of the United States Constitution
or Article I, Paragraph 7 of the New Jersey
Constitution. 10-24-13

STATE OF NEW JERSEY VS. LARRY R. HENDERSON

  STATE OF NEW JERSEY VS. LARRY R. HENDERSON


A-5482-11T3

In its landmark decision in this case, State v. Henderson, 208 N.J. 208 (2011), the Supreme Court remanded to the trial court for a new Wade hearing. Applying the Court's new state constitutional framework for such matters, the trial court denied suppression of the out-of-court eyewitness identification evidence used to convict defendant. On appeal, defendant argued, among other things, that the new framework implicitly imposed on the

prosecution the burden of proving reliability by "clear and convincing evidence." In light of the language of the Supreme Court's opinion that, once a defendant provides evidence of suggestiveness the prosecution must "offer proof to show that the proffered eyewitness identification is reliable," id. at 289, the court rejected this argument, viewing the prosecution's burden as little different and no more onerous than the "burden of producing evidence" described in N.J.R.E. 101(b)(2).

Affirmed. 10-17-13
 

STATE OF NEW JERSEY VS. DAVID GRANSKIE, JR. A-6278-11T4

 STATE OF NEW JERSEY VS. DAVID GRANSKIE, JR.

A-6278-11T4

The question presented by this appeal is whether respondent AIG Casualty Company, which paid workers' compensation benefits to petitioner, Kelly Greene, is entitled to a lien against her settlement with a third-party tortfeasor pursuant to Section 40 of the Workers' Compensation Act, N.J.S.A. 34:15-40, even though her injury was ultimately noncompensable.

Nothing in either Section 15 or Section 40 conditions reimbursement of the claim from a third-party settlement on whether the benefits the employer paid were owed in the first place. Read in conjunction, Section 40 and our collateral source statute, N.J.S.A. 2A:15-97, plainly require that a third-party tortfeasor be held to the full extent of its liability for a workplace injury, that the employer be repaid for benefits paid to the injured worker pursuant to the Act without regard to the compensability of the claim, and that the employee not obtain a double recovery. AIG is entitled to its lien. 10-16-13 

State v. Osborne S. Maloney (A-64-11; 068877)

 State v. Osborne S. Maloney (A-64-11; 068877)

 The trial court did not err by failing to sua sponte
instruct the jury on accomplice liability and by
rejecting defendant’s request to charge the jury on
the asserted lesser-included offenses of attempted
theft by receiving stolen property and conspiracy to
receive stolen property. 10-16-13

STATE OF NEW JERSEY VS. L.A. A-6175-10T4

STATE OF NEW JERSEY VS. L.A.

A-6175-10T4

In this PCR case, presented after an evidentiary hearing on remand, we explicate the familiar Strickland prejudice standard, requiring a defendant to show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). We note the test is not outcome determinative; "reasonable probability" does not mean more likely than not; it means "probability sufficient to undermine confidence in the outcome." Ibid. We address the prejudice prong's application to a claim that counsel failed to call an exculpatory witness. We conclude a court must assess the absent or uncalled witness's credibility in light of the totality of the circumstances. The issue is not whether the absent witness is more credible than the State's witness; it is whether the absent witness'stestimony sufficiently undermined confidence in the result. The court's ultimate goal is to assess the challenged trial's fairness and reliability.

Here, the trial judge found the absent witness credible, but denied relief because he perceived the victim-witness more credible. We reverse the court's denial of PCR because the court failed to consider the totality of circumstances, and misapplied the test for determining prejudice under Strickland. 10-08-13

State of New Jersey v. Terrence Miller (A-35-11; 068558)

State of New Jersey v. Terrence Miller

(A-35-11; 068558)

The trial judge’s denial of an adjournment did not violate defendant’s constitutional right to effective representation, was not an abuse of discretion, and did not violate principles of fundamental fairness. 10-2-13

New law finally establishes a Conditional Dismissal Program in Municipal Court.

New law finally establishes a Conditional Dismissal Program in Municipal Court. Ken Vercammen testified in favor of the passage before the Assembly Judiciary Committee.

Governor Chris Christie on September 9 signed into law legislation co-sponsored by Senator Christopher “Kip” Bateman (R-Hunterdon, Mercer, Middlesex and Somerset) to provide a conditional assistance program in Municipal Court for certain first-time offenders. The law takes affect 120 days after signing [approx December 9]

“This initiative will give a broader range of first-time offenders who have committed a minor offense an opportunity to turn their lives around,” Bateman said. “The program will help foster participants’ rehabilitation and future success by giving them appropriate penalties without having the offense be a part of their permanent criminal record.”

Under prior law, the only offenses eligible for a conditional discharge are certain drug-related offenses. Bateman’s S-2588 allows discharge for many non-drug offenses, such as disorderly person’s offenses, which have not been able to participate in similar programs before.

“First-time offenders who are screened to meet the eligibility requirements will be able to use the program to avoid having a record that cannot be expunged until years after the sentence is served,” Bateman added. “The legislation will also help courts efficiently adjudicate cases without costly logjams.”

Contact Kenneth Vercammen’s Law Office if charged with a criminal offense 732-572-0500

Under this law, conditional dismissal is not available to any person who has previously participated in a conditional discharge, conditional dismissal, or supervisory treatment program such as PTI. In addition, a person is not eligible for conditional dismissal if the offense for which the person is charged involved:

•  organized criminal or gang activity;

•  a continuing criminal business or enterprise;

•  a breach of the public trust by a public officer or employee;

•  domestic violence;

•  an offense against an elderly, disabled or minor person;

•  an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug;

•  animal cruelty;

•  or any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of the Criminal Code.

        After taking into consideration the eligibility criteria, the defendant’s criminal history and the prosecutor’s recommendation, the court may, approve the defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. 

      This law establishes a conditional dismissal program in municipal court similar to the existing supervisory treatment programs for pre-trial intervention and conditional discharge.

      Previously, the supervisory treatment programs for pre-trial intervention and conditional discharge allow the court to suspend proceedings against eligible defendants while the defendants participate in supervisory treatment.  Persons who are charged with indictable offenses (crimes of the first, second, third, or fourth degree) may be eligible for pretrial intervention (“PTI”) pursuant to N.J.S.2C:43-12 et seq.  Persons charged with certain disorderly persons or petty disorderly persons drug offenses may be eligible for conditional discharge pursuant to N.J.S.2C:36A-1.  If the defendant violates a term or condition of supervisory treatment, the court may enter a judgment of conviction or, where the defendant did not previously plead guilty and was not previously found guilty, resume the criminal proceedings.  If the defendant successfully completes the program, the criminal charges are dismissed.

      CONDITIONAL DISMISSAL PROGRAM. This law establishes a similar diversion program in municipal court to be known as the conditional dismissal program.  Under the provisions of the law, a defendant who is charged with a petty disorderly persons offense or disorderly persons offense may apply to enter into the conditional dismissal program, provided the defendant  has not been previously convicted of any offense or crime under any law of the United States, this State or any other state.  A defendant may make an application to the conditional dismissal program after a plea of guilty or a finding of guilt, but prior to the entry of judgment of conviction.

      FINGERPRINTING REQUIREMENT.  To allow sufficient time for verification of the defendant’s criminal history by the prosecutor and as a condition of the application, the defendant will be required to submit to the fingerprint identification procedures as provided in R.S.53:1-15 before making an application to the court.

      CONDITIONAL DISMISSAL PROGRAM ELIGIBILITY. Conditional dismissal will not be available to any person who has previously participated in conditional discharge, conditional dismissal, or PTI.  In addition, conditional dismissal will not be available if the offense for which the person is charged involved: organized criminal or gang activity; a continuing criminal business or enterprise; a breach of the public trust by a public officer or employee; domestic violence; an offense against an elderly, disabled or minor person; an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug; animal cruelty laws; or any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of the Criminal Code (drugs and drug paraphernalia). However, a person who is charged with a disorderly persons or petty disorderly persons offense involving drugs or drug paraphernalia may apply for a conditional discharge in accordance with N.J.S.2C:36A-1.

      In addition to these eligibility criteria, the court considering the application must also consider the following factors: the nature and circumstances of the offense; the facts surrounding the commission of the offense; the motivation, age, character and attitude of the defendant; the desire of the complainant or victim to forego prosecution; the needs and interests of the victim and the community; the extent to which the defendant’s offense constitutes part of a continuing pattern of anti-social behavior; whether the offense is of an assaultive or violent nature, either in the act itself or in the possible injurious consequences of such behavior; whether the applicant's participation will adversely affect the prosecution of codefendants; whether diversion of the defendant from prosecution is consistent with the public interest; and any other factors deemed relevant by the court.

      If the court approves a defendant’s participation in the conditional dismissal program over the municipal prosecutor’s objection, that order will, upon the request of the prosecutor, be stayed for a period of 10 days in order to permit the prosecutor to appeal the order to the Superior Court.

      PROGRAM REQUIREMENTS.  After taking into consideration the eligibility criteria, the defendant’s criminal history and the prosecutor’s recommendation, the court may approve the defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. The court may also impose financial obligations and other terms and conditions in accordance with the law.  The law permits the defendant to apply to the court for an extension of the term of conditional dismissal to allow sufficient time to pay financial obligations imposed by the court.  In addition, a judge could extend the term for good cause.

      If a defendant who is participating in conditional dismissal is convicted of any offense or crime under any law of the United States, this State or any other state, or otherwise fails to comply with the terms and conditions imposed by the court, the court can enter a judgment of conviction and impose a fine, penalty, or other assessment in accordance with the defendant’s prior plea of guilty or prior finding of guilt.

      If, at the end of the term, the defendant has not been convicted of any subsequent offense or crime under any law of the United States, this State or any other state, and has complied with any other terms and conditions imposed by the court, the court may terminate the probation monitoring and dismiss the proceedings against the defendant.

      The law provides that a conditional dismissal of a petty disorderly persons or disorderly persons offense granted pursuant to the program will not be deemed a conviction for purposes of disqualifications or disabilities, but shall be reported to the State Bureau of Identification criminal history record information files for purposes of determining future eligibility or exclusion from court diversion programs.  A conditional dismissal granted will not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under any law of this State.

      LIMITATION.  A conditional dismissal can only be granted once with respect to any defendant.

      CONDITIONAL DISMISSAL APPLICATION FEE AND ASSESSMENT.  A person applying for admission to the conditional dismissal program will pay to the court an application fee of $75.  The fee would be deposited in the newly created “Municipal Court Diversion Fund” established under the law. Monies in this new fund will be used to offset the cost of intake and monitoring services related to the conditional dismissal program.  If admitted into the program, the defendant would also be required to pay any restitution, costs, and other mandatory assessments that would have been imposed by law for a conviction of the offense charged.

      A municipal court judge may impose an assessment, based on the nature of the offense and the character of the defendant that shall not exceed the amount of a fine that would have been imposed for conviction of the offense charged.  Such assessment would be distributed in the same manner as a fine for the offense.

      A defendant would be advised of these financial conditions prior to seeking entry into the program.

      The law allows the defendant to apply for a waiver of the fee by reason of poverty.  The court may also permit the defendant to pay the conditional dismissal fee and other assessments in installments or order other alternatives pursuant to section 1 of P.L.2009, c.317 (C.2B:12-23.1).  Under the provisions of that enactment, the court has several options available if it finds that a person does not have the ability to pay a penalty in full or has failed to pay a previously imposed penalty.  The court may reduce, suspend, or modify the installment plan; order that credit be given against the amount owed for each day of confinement if the court finds that the person has served jail time for the default; revoke any unpaid portion of the penalty; order the person to perform community service in lieu of payment of the penalty; or impose any other alternative permitted by law.

      MUNICIPAL COURT DIVERSION FUND.  The law establishes a new dedicated, non-lapsing fund to be known as the "Municipal Court Diversion Fund," which will be administered by the Administrative Office of the Courts.  The fund will be the depository of the $75 application fee for the conditional dismissal program.  Monies in the fund will be used to offset the cost of intake and monitoring services for defendants under the conditional dismissal program.

      CONDITIONAL DISCHARGE. Currently, the conditional discharge statute, N.J.S.2C:36A-1, provides that the $75 fee, which is charged for this program, is used to defray the costs of juror compensation. However, this provision is outdated since these monies are no longer used to defray the costs of juror compensation, but instead are paid to the State Treasurer to for deposit in the General Fund. This law updates this section of law accordingly.

      Under the current provisions of the conditional discharge statute, a person is not eligible for conditional discharge if that person has committed a disorderly persons or petty disorderly persons drug offense under any law of the United States, this State or any other state. The law amends section a. of N.J.S.2C:36A-1 to also provide that a person who has participated in any supervisory treatment program or the conditional dismissal program established under the law will not be eligible for participation in the conditional discharge program.

      SUPERVISORY TREATMENT (PTI).  Similar to the conditional discharge statute, the PTI statute, N.J.S.2C:43-12, provides that the $75 fee charged for the program is used to defray the costs of juror compensation. Since these monies are no longer used to defray the costs of juror compensation, the law updates this section of law accordingly.

      Under the current provisions of N.J.S.2C:43-12, PTI may only occur once and any person who has previously received PTI is not eligible for subsequent PTI. This law expands this provision by providing that a person who has participated in either conditional dismissal or conditional discharge will not be eligible for PTI.

      The law amends the conditional discharge and PTI statutes to provide that the court may allow the payment of the fees and other financial obligations in installments.

      EXPUNGEMENT. The law amends N.J.S.2C:52-6 concerning expungement of arrests not resulting in conviction to allow for expungement of charges dismissed pursuant to conditional discharge or conditional dismissal six months after the entry of the order of dismissal. Currently, this section allows for expungement for a person who has had charges dismissed as a result of participation in a supervisory treatment program.