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2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
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Sunday, May 20, 2018


The legal question – when enrollment into the PTI program is contingent on a defendant pleading guilty to a second-degree charge – is whether the civil consequences of wreaking devastating personal financial havoc on a defendant constitutes good cause under Rule 3:9-2. This court held that such a financial circumstance establishes good cause permitting a civil reservation. The court emphasized that the civil reservation eliminated the obstacle to avoiding an unnecessary criminal trial against defendant, who feared that the civil claimants would later use her plea of guilty as a devastating admission of civil liability.

Saturday, May 12, 2018


In a prior appeal, State v. Kosch, 444 N.J. Super. 368 (App. Div.), certif. denied, 227 N.J. 369 (2016), the court vacated three of defendants' nine theft convictions and remanded for a new trial on those three theft-of-immovable-property counts; the court also held that "once those three counts are finally adjudicated, defendant should be resentenced on all " in light of potential merger issues, id. at 392-93. Without disposing of the three counts, which still remain unadjudicated, the judge reshaped the prior sentence and imposed the same aggregate prison term as before. Defendant appealed and the court reversed. Although the court recognized the new judgment was not a final order, the court granted leave to appeal out of time and reversed because the trial judge failed to comply with the "peremptory duty to obey" our mandate "precisely as it [was] written"; that mandate unambiguously precluded resentencing without an adjudication of the theft-of-immovable-property counts.

Sunday, May 06, 2018


This court consolidates these two insurance coverage cases for purposes of this opinion. The parties filed cross-motions for summary judgment. The motion judge reserved decision at the conclusion of oral argument and entered orders that same day that granted the insurers' motions for summary judgment and denied the insureds' cross-motions. The judge did not issue a written opinion or oral decision, nor make factual findings or conclusions of law as required by Rule 1:7-4(a). In a Final Judgment entered a month later, the judge dismissed the insureds' complaints with prejudice "for the reasons set forth in [the insurers'] motion papers."
Although the standard of review from the grant or denial of summary judgment is de novo, the function of an appellate court is to review the decision of the trial court, not to decide the motion tabula rasa. The requirements of Rule 1:7-4(a) are unambiguous and cannot be carried out by the motion judge by a nebulous allusion to "the reasons set forth in defendant[s]' motion papers." Reversed and remanded.


Defendant was sentenced to life imprisonment for murder in 2001, filed his first post-conviction relief petition in 2007, and filed his second petition in 2015. The Appellate Division ruled defendant's second petition was untimely under Rule 3:22-12's time limits. Those limits cannot be relaxed by invoking Rule 1:1-2. In 2009, the Supreme Court amended Rule 1:3-4(c) to prohibit enlargement of the time limits in Rule 3:22-12, and added Rule 3:22-12(c) prohibiting relaxation except as provided by Rule 3:22-12 itself. Moreover, in 2010, the Supreme Court amended Rule 3:22-4(b) and Rule 3:22-12(a)(2) to require second petitions to be filed within one year of specified events. Because that time limit applies "notwithstanding any other provision of this rule," it cannot be relaxed by showing excusable neglect and a fundamental injustice, as permitted for first petitions under the 2010 amendment. These amendments to the procedural rules of court apply to previously-convicted defendant, who had no vested right to file a petition fourteen years out of time.


N.J.S.A. 2C:44-3(a) permits imposition of an extended prison term when a defendant was convicted of at least two separate prior crimes but only if "the latest" of those crimes was committed or the defendant's "last release from confinement" occurred – "whichever is later" – within ten years of the charged crime. Because the last of defendant's prior crimes was committed in Florida ten years and three weeks before the crime charged here, and because defendant was not "confined" – he was sentenced in Florida to a probationary term and being on probation is not the same as being "confined" – the court reversed and remanded for further proceedings, including development of the State's late claim that the consequences of defendant's violation of the Florida probationary term within the ten-year period permits a finding of "confinement" within the meaning of N.J.S.A. 2C:44-3(a)


The case concerns the State's use, in a criminal prosecution, of defendant's answer filed in a parallel civil forfeiture action. As part of its proof that defendant was the occupant of a bedroom in which drugs were seized, the State introduced in evidence the defendant's forfeiture answer, in which he asserted that he owned $2900 in cash seized from the same bedroom. While rejecting defendant's Fifth and Sixth Amendment arguments, the court held that the process by which defendant was induced to file his answer in the civil forfeiture action was fundamentally unfair. Although the State should have been barred from introducing the answer, it was harmless error in light of the other evidence linking defendant to the premises.
The court also provided some procedural guidance for future forfeiture cases, and referred the issue to the Criminal and Civil Practice Committees for their consideration

STATE OF NEW JERSEY VS. A.T.C. (15-05-0305

The court holds the Jessica Lunsford Act, N.J.S.A. 2C:14-2, which imposes mandatory minimum sentencing and parole ineligibility requirements for aggravated sexual assault of a victim less than thirteen years old, does not violate the separation of powers doctrine by impermissibly impairing the State's right to engage in plea bargaining, nor does it impermissibly limit the trial court's authority to reject the plea agreement.
The court further holds the Jessica Lunsford Act was not superseded by the earlier enacted and later effective amendment to N.J.S.A. 2C:14-2(a)(7).

State v. Hassan Travis (A-7-17;

State v. Hassan Travis (A-7-17; 080020)
The Court now revises Rule 3:4A(b)(5) to make clear that a recommendation against a defendant’s pretrial release that is based only on the type of offense charged cannot justify detention by itself unless the recommendation is based on one of two presumptions in the statute. See N.J.S.A. 2A:162-19(b). A pending charge is a charge that has a future pre-disposition related court date or is pending presentation to the grand jury, or has not been disposed of due to the defendant’s failure to appear pending trial or sentencing, or that is in some form of deferred status.

State v. Jonathan Mercedes (A-6-17;

State v. Jonathan Mercedes (A-6-17; 079995)
The Court now revises Rule 3:4A(b)(5) to make clear that a recommendation against a defendant’s pretrial release that is based only on the type of offense charged cannot justify detention by itself unless the recommendation is based on one of two presumptions in the statute. See N.J.S.A. 2A:162-19(b). A pending charge is a charge that has a future pre-disposition related court date or is pending presentation to the grand jury, or has not been disposed of due to the defendant’s failure to appear pending trial or sentencing, or that is in some form of deferred status.

State v. Allen Alexander a/k/a Karon Keenan (Essex County and Statewide). (A-49-16;

Under the circumstances of this case, aggravated assault is, at most, a related offense of the State’s robbery charge. The trial court had no obligation to charge the jury sua sponte on aggravated assault as a lesser-included offense of the State’s robbery charge.

State v. Todd Dorn (A-54-16;

State v. Todd Dorn (A-54-16; 078399)
The amendment to count two of defendant’s indictment was a violation of defendant’s right to grand jury presentment under the New Jersey Constitution. Defendant waived his right to object to the map’s authentication.

State in the Interest of C.K. (Bergen County and Statewide) (A-15-16; 0

N.J.S.A. 2C:7-2(g) is unconstitutional as applied to juveniles adjudicated delinquent as sex offenders. In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.

State v. Malcolm C. Hagans (078014) (Burlington County and Statewide) (A-37-16

State v. Malcolm C. Hagans (078014) (Burlington County and Statewide) (A-37-16; 078014)
Because the trial court’s determination that the driver ultimately knowingly and voluntarily gave consent to search is supported by sufficient credible evidence, the trial court properly denied defendant’s motion to suppress the evidence seized during the search

Sunday, April 22, 2018



After determining defendant's plea allocution did not establish a factual basis for each element of theft by deception, N.J.S.A. 2C:20-4, because defendant did not admit he deceived the victims at the time he obtained their money, the court ruled the trial judge's reliance on the theft consolidation statute, N.J.S.A. 2C:20-2(a), to accept defendant's factual basis for a different form of theft was misplaced as that statute applies only in trial settings — not to plea proceedings. 


The court holds the Jessica Lunsford Act, N.J.S.A. 2C:14-2, which imposes mandatory minimum sentencing and parole ineligibility requirements for aggravated sexual assault of a victim less than thirteen years old, does not violate the separation of powers doctrine by impermissibly impairing the State's right to engage in plea bargaining, nor does it impermissibly limit the trial court's authority to reject the plea agreement. 

The court further holds the Jessica Lunsford Act was not superseded by the earlier enacted and later effective amendment to N.J.S.A. 2C:14-2(a)(7). 


Defendant's putative paramour filed a complaint against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, alleging he forcibly entered her residence and assaulted and threatened her. After considering the victim's sworn testimony, a Family Part judge issued an ex parte temporary restraining order (TRO) under N.J.S.A. 2C:25-28(g) and a warrant to search defendant's apartment and seize any firearms as authorized by N.J.S.A. 2C:25-28(j). 
The police arrested defendant on fourth degree contempt, N.J.S.A. 2C:29-9(b)(1), when he refused to permit the officers to enter his apartment to execute the domestic violence search warrant. Once inside, the officers found in plain view cocaine 

and drug paraphernalia. Based on the sworn testimony of a detective, a Criminal Part judge issued a telephonic warrant to search the apartment for narcotics. 

State v. Dorian Pressley (A-52-16; 078747

 State v. Dorian Pressley (A-52-16; 078747) 

Based on the record, the Court cannot determine whether part or all of the protections outlined in Henderson should apply to identifications made by law enforcement officers. For the reasons expressed, the Court affirms the judgment of the Appellate Division and upholds defendant’s convictions. 

Sunday, April 15, 2018

State v. Aharon Atwood and Shalom Mizrahi (A-42-16) (078804) Argued January 17, 2018 -- Decided March 29, 2018 TIMPONE, J., writing for the Court.

State v. Aharon Atwood and Shalom Mizrahi (A-42-16) (078804) Argued January 17, 2018 -- Decided March 29, 2018
TIMPONE, J., writing for the Court.
In this appeal, the Court considers whether a search warrant granted after police performed an investigatory automobile stop can retroactively validate the stop and insulate the State from bearing, in a suppression hearing, the burden of demonstrating reasonable and articulable suspicion for the initial seizure of the moving vehicle.
On June 12, 2015, the Lakewood Police Department (LPD) received a call regarding a disturbance. Sergeants Pederson and Miick of the LPD responded to the area and conducted a motor vehicle stop of an automobile driven by defendant Aharon Atwood, in which co-defendant Shalom Mizrahi was a passenger. According to the search warrant affidavit, Sergeant Miick observed Atwood’s vehicle pull “over to the side of the road with a front driver’s side head light out,” then “quickly leave the area as the marked unit was observed.”
Defendants disputed the basis for the stop, asserting that both headlights were operational and denying any evasive behavior. The Mobile Video Recording (MVR), according to defendants, indicates that Atwood did not commit any motor vehicle violation.
After Sergeant Miick activated the overhead lights, Atwood immediately pulled the vehicle to the side of the road. Both officers approached the vehicle and questioned defendants about the disturbance on Ford Avenue. Mizrahi explained that he had been the victim of a robbery. The officers then questioned defendants about an apparent marijuana odor emanating from the vehicle. While questioning defendants, Sergeant Miick reportedly detected traces of marijuana, in plain view, on the driver’s side floor. The officers requested an Ocean County Sheriff’s K-9 narcotics dog to respond to the scene and removed defendants from the vehicle. The K-9 gave a “positive hit” on the vehicle’s trunk. Police impounded the vehicle and placed both defendants under arrest.
Later that evening, Officer Nathan Reyes of the LPD obtained a search warrant for the vehicle. Police executed the warrant soon thereafter, uncovering marijuana and cocaine in the rear interior passenger area of the car. On August 26, 2015, an Ocean County Grand Jury handed up an indictment charging each defendant with four drug offenses.

Defendants filed a motion to suppress evidence seized “without a warrant.” In response, the State challenged that framing of the issue and relied on the search warrant to validate the initial stop. The trial court held a conference with defense counsel and the State. The parties engaged in substantial argument regarding the manner in which the motion should proceed and which party would have the burden at each phase. The court noted the existence of “warrantless aspects” to the suppression motion. Based on the conference, the trial court issued an updated scheduling order and directed the State to establish the legality of the “warrantless aspects” of the motion— namely, the initial motor vehicle stop. Defendants would bear the burden on any challenges to the validity of the subsequent search warrant.
On the day of the suppression hearing, instead of presenting proofs to establish the legality of the stop, the State again requested that the court shift the entire burden to the defense. The trial court ordered the proceeding to begin with the State having the initial burden of proof. The State announced that it would not go forward with evidential proceedings. The court admonished the State and ordered that it begin with the presentation of testimony. The State called no witnesses. Finding that the State had failed to meet its burden, the court granted defendants’ motion to suppress. The court suppressed all evidence seized—including the evidence seized pursuant to the search warrant under the “fruit of the poisonous tree” doctrine.
The State filed a motion for leave to appeal to the Appellate Division, which promptly denied that motion. The Court granted the State leave to appeal. 229 N.J. 255 (2017).
HELD: Search warrants are prospective in nature—they authorize the taking of action. A later-obtained search warrant does not retroactively validate preceding warrantless conduct that is challenged through a suppression motion focused on the legitimacy of the seizure that gave rise to a later search. The State must bear the burden of proving the legitimacy of the seizure that led to a later warrant and search—in this case the stop.
1. Motor vehicle stops are seizures for Fourth Amendment purposes. An officer may stop a motor vehicle only upon articulable and reasonable suspicion that a criminal or motor vehicle violation has occurred. Before trial, a defendant claiming to be aggrieved by an unreasonable search or seizure may apply to suppress the evidence seized, whether the search or seizure was executed with a warrant or constitutes a warrantless search. R. 3:5-7(a).   
2. The proper mechanism through which to explore the constitutionality of warrantless police conduct is an evidentiary hearing. At evidentiary hearings, the State presents witnesses to substantiate its basis for the challenged warrantless conduct, and the defense is afforded the opportunity to confront and cross-examine the State’s witnesses. N.J.R.E. 104 hearings provide an opportunity to probe adverse evidence through cross-examination, and New Jersey courts have recognized the importance of the ability to question witnesses in case of factual disputes.  
3. Here, there was clearly a dispute as to material facts, and that factual dispute directly related to whether defendants were in compliance with the traffic code. The trial court properly directed that an evidentiary hearing be held in order for the State to satisfy its burden of proving that reasonable and articulable suspicion supported the warrantless seizure of defendants’ moving vehicle. At the hearing, the State chose not to present any witnesses to justify the investigatory stop that preceded the application for a search warrant. But because the warrantless conduct of seizing defendants’ car was presumptively unreasonable and therefore invalid, the burden remained on the State to establish by a preponderance of the evidence that there was no constitutional violation. The State had to prove the reasonable and articulable suspicion to justify the initial stop. The statements in the warrant affidavit were not enough to carry that evidentiary burden. Defendants were entitled to cross-examine the officers who made those statements to test, among other things, the officers’ vision and perspective in observing the perceived traffic violation, as well as whether the MVR conflicts with the officers’ account. The warrant affidavit is not a substitute for the officers’ testimony and therefore did not suffice to justify the stop.   
4. On a motion to suppress evidence for which a warrant was obtained, the trial court’s review is limited to the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously. Here, the State properly identified the history leading up to the request for a search warrant in its affidavit. Context is important and helpful to the examining judge. Moreover, in a challenge to the validity of a search warrant, reviewing courts consider significant omissions from affidavits in assessing whether the warrant was supported by probable cause. That does not mean, however, that the grant of a forward-looking warrant can validate actions already taken. The State must provide evidence to support the reasonableness of the suspicion that led to the stop that can be tested through the adversarial process. That process would be defeated if the grant of a warrant could retroactively sanction a warrantless seizure. The trial court here afforded to the State ample opportunity to support the stop and scheduled a motion hearing for the determination of reasonable suspicion. Because the State presented no other evidence, the State did not carry its burden to prove the validity of the stop.   
5. Here, there is no evidence that defendants’ car would have been searched if not for the unsupported stop.
Without the stop, the officers would not have smelled marijuana, would not have called for a canine sniff, and would not have sought a warrant. The search was unquestionably incident to the stop, and the evidence obtained through the search was thus subject to suppression.   

The order of the trial court is AFFIRMED.

VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.


Each defendant in these five back-to-back appeals by the State was convicted of fourth-degree operating a motor vehicle during a period of license suspension. N.J.S.A. 2C:40-26. The statute prescribes a sentence of a "fixed minimum" term of at least 180 days without parole eligibility. N.J.S.A. 2C:40-26(c). The State contended the trial court exceeded its authority by imposing intermittent sentences under N.J.S.A. 2C:43-2(b)(7). The panel concluded that a minimum period of parole ineligibility measured in days requires service of continuous twenty-four-hour periods, but does not require an uninterrupted 180-day term. The panel rejected the State's argument that intermittent periods of release were akin to parole. 

The panel held the trial court was authorized to impose weekend sentences running from Friday night to the same time Sunday night. Such a sentence would allow a defendant to accrue two days of credit each weekend toward the 180-day sentence. But, a sentence of nights only was not an authorized sentence, as aggregation of part-days is not permitted. The panel therefore modified two sentences; reversed two others; and remanded one for reconsideration. 

Sunday, April 08, 2018



To preserve its constitutionality, the Juvenile Justice Code (Code) must be interpreted to prevent incarceration of all developmentally disabled juveniles in county detention facilities, because not all counties have access to an approved post-disposition short-term incarceration program. Because the Code prohibits the incarceration of developmentally disabled youth in a State facility, the inequity must be avoided of developmentally disabled juveniles in one county facing incarceration while those similarly situated in another do not. T.C., who was seventeen at the time of the offense, admitted participating with two other juveniles in the unarmed forcible theft of marijuana from the backpack of a fourth juvenile. Although he has already served the thirty days of incarceration imposed, the matter is not moot because he is serving juvenile probation that he could violate, and the issue is one of public importance that may evade review in the future. The disposition is reversed. 

Wednesday, April 04, 2018

Firearms not returned to person here arrested for domestic violence IN THE MATTER OF THE DENIAL OF THE APPLICATION FOR THREE PERMITS TO PURCHASE A HANDGUN BY P.A.P.


           Submitted October 26, 2016 – Decided March 1, 2018

           Before Judges Fuentes and Simonelli.

           On appeal from Superior Court of New Jersey,
           Law Division, Burlington County.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4916-14T4 The opinion of the court was delivered by FUENTES, P.J.A.D. P.A.P. appeals from the order of the Law Division, Criminal Part, that upheld the decision of the Pemberton Township Chief of Police denying his application for three permits to purchase handguns, as required under N.J.S.A. 2C:58-3. He argues that the trial court's decision was not supported by sufficient legally competent evidence. Appellant also challenges the part of the court's ruling that orders the forfeiture of four specifically identified firearms and directs him to surrender "any additional firearms that he owns or that are within his custody or control[.]" He argues that the forfeiture of these firearms "contradicts" an earlier decision made by the Burlington County Prosecutor's Office (BCPO) to return to him these same firearms. We reject these arguments and affirm. We derive the following facts from the testimony of the Chief of the Pemberton Township Police Department in the evidentiary hearing conducted by the trial court, as well as the documents admitted in the course of the hearing. I Pursuant to N.J.S.A. 2C:58-3, on November 7, 2014, P.A.P. applied to the Chief of the Pemberton Township Police Department for the issuance of a firearms purchaser identification card to purchase three handguns. Chief David Jantas assigned Kelsey Knudson, a civilian "police aide," to investigate the application and "generate a report based on the information that she learned during her investigation." As described by Chief Jantas, the investigation followed a "checklist" provided by the New Jersey State Police (NJSP) of areas the investigator was "supposed to screen and try to obtain information about the applicant." The investigator reviewed criminal history data bases, the Family 2 A-4916-14T4 Automated Case Tracking System (FACTS) used and maintained by the Chancery Division, Family Part, the applicant's motor vehicle records maintained by the Motor Vehicle Commission, and the New Jersey Domestic Violence Registry.1 In the course of her investigation, Knudson discovered that several complaints had been filed against appellant alleging grounds for relief under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. A review of these domestic violence records revealed that appellant's former wife and a woman with whom he previously had a romantic relationship, had filed 1 Pursuant to N.J.S.A. 2C:25-34: The Administrative Office of the Courts shall establish and maintain a central registry of all persons who have had domestic violence restraining orders entered against them, all persons who have been charged with a crime or offense involving domestic violence, and all persons who have been charged with a violation of a court order involving domestic violence. All records made pursuant to this section shall be kept confidential and shall be released only to: . . . . b. A police or other law enforcement agency investigating a report of domestic violence, or conducting a background investigation involving a person's application for a firearm permit or employment as a police or law enforcement officer or for any other purpose authorized by law or the Supreme Court of the State of New Jersey[.] 3 A-4916-14T4 complaints alleging domestic violence, resulting in a total of eight domestic restraining orders between 1993 and 2011. The trial judge found, and the record supports, that six of the eight domestic violence complaints were filed by appellant's former wife. The other two domestic violence complaints were filed by his paramour. Four of the complaints resulted in the issuance of final restraining orders, requiring the BCPO to seize appellant's firearms on each of these four separate occasions. All eight restraining orders were eventually dismissed by the Family Part upon the plaintiffs' request. The allegations of domestic violence made by the plaintiffs in their complaints against appellant involved serious acts of physical violence and sexual assault. Specifically, a Domestic Violence Incident Report states: Aug[ust] 2010, . . . [appellant] was sexually aggressive and forced [plaintiff] to engage in oral and anal sex. [Appellant] put [plaintiff's] head in toilet and urinated on her head. [Appellant] forced [plaintiff] to stay in bed. [Appellant] has shown up unexpectedly behind [plaintiff] at ATM machine and driven by her home. [Appellant] suffers from PTSD and refuses to get treatment. Following these allegations, police officers contacted appellant and informed him that he needed to surrender his firearms. Appellant told the officers that his firearms were at his brother's home in Carlisle, Pennsylvania. Carlisle Police 4 A-4916-14T4 Officers who responded to appellant's brother's residence did not find any firearms. Police eventually found and seized the firearms at the residence of a friend of appellant in Browns Mills, an unincorporated community located in Pemberton Township, Burlington County. Appellant has also been arrested for criminal activity related to domestic violence. He was charged with criminal trespass onto the property of an alleged domestic violence victim who had an active restraining order against him at the time. He was arrested for assault with a deadly weapon in North Carolina. From 1989 to 1993, he was arrested and charged with assault and criminal contempt. Chief Jantas denied appellant's application on January 9, 2015. The Chief found issuance of a permit to appellant to purchase a firearm "would not be in the interest of the public health, safety, and welfare." N.J.S.A. 2C:58-3(c)(5). This was the second time Chief Jantas had denied appellant's application to purchase a handgun for these same reasons. The trial judge reviewed the evidence made available to Chief Jantas de novo, and reached the same conclusion. We are bound to uphold the Law Division's factual findings, provided they are supported by sufficient competent evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 5 A-4916-14T 4 N.J. 474, 484 (1974). However, the trial court's conclusions of law, by contrast, are "not entitled to . . . special deference" and are thus subject to de novo review. In re Custodian of Records, Criminal Div. Manager, 214 N.J. 147, 163 (2013) (emphasis added) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995)). We discern no legal or factual basis to disagree with the trial court's decision. The record amply supports the court's conclusion finding appellant disqualified from obtaining a permit to purchase three handguns pursuant to the "public health, safety or welfare" disqualifier under N.J.S.A. 2C:58-3(c)(5). In re State for Forfeiture of Pers. Weapons & Firearms Identification Card belonging to F.M., 225 N.J. 487, 507-08 (2016). As our colleague Judge Kennedy noted in In re Z.L., 440 N.J. Super. 351, 357 (App. Div. 2015), "in deciding the defendant [in State v. Cordoma, 372 N.J. Super. 524, 536 (App. Div. 2004)] was disqualified under subsection (c)(5), we considered the defendant's mental condition, even though it did not rise to the level of the disabling conditions set forth in N.J.S.A. 2C:58- 3(c)(2) and (3)." Appellant's arguments based on the consideration of hearsay evidence lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). It is well-established that the 6 A-4916-14T4 usual rules barring hearsay testimony are not controlling in handgun permit proceedings. Weston v. State, 60 N.J. 36, 50 (1972). Finally, the trial court's decision to order the forfeiture of appellant's firearms was entirely proper and in keeping with the court's responsibility to protect victims of domestic violence. In re Return of Weapons to J.W.D., 149 N.J. 108, 114-16 (1997); see also N.J.S.A. 2C:25-18. Affirmed.

Expert hear could not testify where he did not perform tests State v Plank

Expert hear could not testify where he did not perform tests





              Argued March 7, 2017 – Decided February 28, 2018

              Before Judges Fisher, Ostrer and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 10-
              11-1145. SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1244-13T1
The opinion of the court was delivered by OSTRER, J.A.D. A jury found defendant Megan Plank guilty of distributing heroin, which caused the deaths of Christopher Coppola and Sara Malaker. The issue of causation was controversial, because Malaker had health problems, and Coppola ingested other substances as well as heroin. The State's key witness on causation, the county's new medical examiner, relied on the victims' autopsies. But, he did not perform, observe, or supervise them. The autopsies were the work of his predecessor, who was living out of state by the time of trial. On appeal, defendant principally argues the medical examiner's testimony violated her constitutional right of confrontation. We agree and reverse her convictions of two counts of first-degree strict liability for causing drug-induced death. N.J.S.A. 2C:35-9(a). However, we affirm her conviction of third- degree distribution of heroin. N.J.S.A. 2C:35-5(a)(1), -5(b)(3). I. Proof of defendant's heroin distribution was circumstantial. The jury heard from no one who saw defendant possess or distribute the drug. The State introduced a series of text messages between defendant and Malaker in which, the State contended, the two agreed 2 A-1244-13T1 to meet to transfer the heroin, which they referred to only as "it." According to the texts, defendant arranged to meet Malaker, who was in a car with Coppola, at the house of "fat boy Jon" in the Finderne section of Bridgewater. Malaker wanted to meet elsewhere, but defendant declined, saying she did not want to "drive with it." Malaker texted she felt uncomfortable "doing it" in front of others, and asked if she could pull defendant aside and "do this privately." Defendant agreed. The text messages ended as Malaker approached her destination. Malaker's mother testified her daughter and Coppola borrowed her car shortly before defendant and Malaker texted. Cellphone tower records showed that Malaker travelled in the evening rush hour between her mother's home in Union County and Bridgewater. Before the trip, Coppola withdrew $260 from an ATM. The State argued Malaker used part of that to buy the heroin. The next day, Malaker's mother found the lifeless bodies of her daughter and Coppola in her daughter's bedroom. Coppola was sprawled on the bed. Malaker was hunched over a trash basket. There were heroin packets in the room — five empty and five full. Coppola had only $165 in his wallet. Although defendant did not testify, she relied on the second of two recorded police interviews that the State introduced. In the second interview – on the day of her arrest and almost a year 3 A-1244-13T1 after the deaths – she admitted she met Malaker at Fat Boy Jon's house, but she thought Malaker wanted "weed." After Malaker arrived and defendant realized she wanted heroin, defendant told her she did not have it and she should get it elsewhere. The defense suggested that Malaker may have obtained heroin from a person she called repeatedly after she met defendant, or that Coppola, who had a history of heroin abuse, may have already possessed it. The State challenged defendant's credibility. In her initial statement, she denied any contact with Malaker or Coppola shortly before their deaths. Even after she was confronted with the texts, she denied making them, stating someone borrowed her phone while she was at Fat Boy Jon's house. The State contended defendant and Malaker expressed caution in their texts because their transaction involved a more serious drug than marijuana. The State also argued the numerous voice conversations between defendant and Malaker made it unlikely that defendant misunderstood what Malaker wanted. Shortly after the deaths, the county medical examiner at the time, Zhongxue Hua, M.D., wrote in Coppola's and Malaker's autopsy reports that the causes of death were "[p]ending further studies" and their manner of death was "[p]ending investigation." 1 After 1 The reports stated the autopsies were performed the day after the victims were found, but were signed nine days later. 4 A-1244-13T1 receiving toxicology reports from an outside laboratory, Dr. Hua amended his autopsy reports with one-page addenda. He simply stated that Coppola's cause of death was "[a]cute intoxication of heroin, Xanax, Clonazepam and cannabinoids"; and that Malaker's cause of death was "[a]cute morphine intoxication", and the "contributory cause" was "[b]ronchial asthma." The manner of death in both cases was "Accident."2 By the time of trial almost four years later, Junaid Shaikh, M.D., had succeeded Dr. Hua as county medical examiner and testified as to the cause of death. Although Dr. Hua was living in New York, the State declined to call him as a witness, claiming it was a matter of cost. Dr. Shaikh testified Dr. Hua had been asked to leave his position, but did not elaborate about the reasons. Dr. Shaikh did not observe or supervise the autopsies, nor did Dr. Hua consult with him. He explained that he reviewed the case for the first time several months before the trial. He reviewed Dr. Hua's autopsy reports; the autopsy photographs; Dr. Hua's histopathology reports; the chief medical investigator's 2 Dr. Hua's autopsy reports were marked for identification, but not introduced into evidence. 5 A-1244-13T1 Reports of Investigation by Medical Examiner (RIMEs);3 photographs of Malaker and Coppola in the bedroom where Malaker's mother found them; and the toxicology reports of the outside laboratory.4 In presenting his opinion, Dr. Shaikh repeated Dr. Hua's gross findings and observations of Malaker and Coppola. Asked to explain the internal examinations of the two victims, Dr. Shaikh paraphrased for the jury Dr. Hua's findings as to each major body area and system. He included Dr. Hua's findings that Malaker's brain was swollen, there was mucous in the bronchi, and the lungs were hyperinflated. In addition to Dr. Hua's findings, Dr. Shaikh found independent evidence of lividity in Malaker from scene photographs he reviewed. Dr. Shaikh repeated Dr. Hua's findings in his histopathology reports. In particular, Malaker had bronchial asthma, which was consistent with Dr. Hua's gross findings regarding her lungs. There were no significant histopathology findings regarding Coppola. Notably, Dr. Shaikh criticized Dr. Hua's histopathology reports as conclusory, explaining that he should have described in detail what he observed on the slides. Yet, Dr. Shaikh did not 3 Although the chief medical investigator, Mark Bannworth, prepared the RIMEs, Dr. Hua apparently reviewed them, as there are initials, although indiscernible, on the "M.E." line. 4 The RIMEs, the toxicology reports, the histopathology reports, and the autopsy photographs, were also marked for identification, but not introduced into evidence. 6 A-1244-13T1 review those slides himself, and stated they contained no information that affected the cause of death. Dr. Shaikh reviewed the effect of heroin on the body, as well as its interaction with bronchial asthma. He also discussed the interaction of heroin, benzodiazepines and cannabinoids, with respect to Coppola. Dr. Shaikh explained that heroin breaks down in the body into a metabolite, 6-monoacetylmorphine or 6-MAM, and then into free morphine. Both 6-MAM and free morphine were found in Coppola, reflecting heroin use. Only free morphine was found in Malaker, which could have come from heroin, or morphine itself – Dr. Shaikh did not know. However, no morphine was found in the bedroom where the victims died. Dr. Shaikh testified that he "agree[d] with the finding" of Dr. Hua that Malaker died of acute morphine intoxication, although bronchial asthma contributed to her death. He stated that "[a]s a routine practice, we use the drugs as the primary cause of death and list any other contributory causes that might be there." Dr. Shaikh noted that the amount of free morphine in Malaker's system was .026 milligrams per liter, or 26 nanograms per milliliter, and the toxic level was .5 milligrams per liter, roughly twenty times that. He also conceded that Malaker had in her system less than half the amount of a therapeutic dose of morphine. He added that the toxic effect of certain drugs, including morphine, often 7 A-1244-13T1 depends on other factors personal to the drug user. He explained that he viewed Malaker's bronchial asthma as an ongoing condition and the morphine as a "triggering factor." He conceded that Malaker's hyperinflated lung could have been a sign of a bronchial asthma attack. Dr. Shaikh also joined Dr. Hua's conclusion, quoted above, regarding Coppola's cause of death. Dr. Shaikh reviewed the quantities of other drugs in Coppola's system, and concluded: "[W]hen there are multitudes of drug present in the system, it's always appropriate as a convention of medical examiners that it implicates all of them, as long as there are drugs that can cause a person's demise. So, we use that as the cause of death . . . ." He declined to opine as to the significance of the level of drugs in Coppola's blood, stating repeatedly he was not a toxicologist. However, he also stated that: "some of the levels are high"; the free morphine in Coppola's system, .100 milligrams per liter, which was roughly four times that of Malaker, was in the toxic range (although he earlier had testified that the "usual toxic level" was .5 milligrams); and the drugs in Coppola's system had a synergistic effect. He agreed that the "combination of the[] four drugs [in his system] . . . caused him to die" and he could not say that "it was just the morphine." 8 A-1244-13T1 A forensic pathologist from the outside testing laboratory, Wendy Adams, Ph.D., discussed the toxicology test results. She conceded that the level of free morphine in Malaker's system was below that found in people who received morphine therapeutically, but that a person with less tolerance could succumb to lesser quantities. She noted a study of two reported fatalities in which free morphine levels were 70 and 350 nanograms per milliliter – Coppola's level was 100 – but admitted that the two fatalities did not describe a lethal range. She cited another study of eight fatalities, in which the blood level was 360 nanograms per milliliter. She also opined that the benzodiazepines in Coppola's system were within or below therapeutic levels. She agreed that use of the cited ranges was an insufficient basis to determine cause of death in a particular person. Contrary to Dr. Shaikh, she asserted that the drugs in Coppola's system had an additive – as opposed to a synergistic – effect. The sole witness for the defense was forensic pathologist, Charles Wetli, M.D., who addressed Malaker's cause of death, but not Coppola's. In addition to the documents Dr. Shaikh reviewed, Dr. Wetli reviewed the slides from Malaker's histopathology examination, and Malaker's medical records, which showed a history of bronchial asthma, anxiety, and panic attacks. Dr. Wetli opined, based on the state of Malaker's lungs, her body's position at time 9 A-1244-13T1 of death, and her medical history, that she died not from a heroin overdose, but succumbed instead to acute asthmatic bronchitis. He opined that the asthma attack was triggered by the panic and anxiety of seeing her boyfriend overdosing. He asserted the level of free morphine in her body was too low to have been listed as a contributing cause. On cross-examination, the State confronted Dr. Wetli with two studies that reported cases of asthma attacks precipitated by snorting heroin. The jury found defendant guilty of distributing heroin, and distributing heroin that Malaker and Coppola ingested, causing their deaths. At sentencing, the court was satisfied defendant met the prerequisites for a downgraded sentence, and imposed concurrent five-year terms for the two first-degree counts, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent flat four-year term on the third-degree count.5 The State filed an appeal of the sentence. Defendant cross- appealed, raising the following points: POINT I THE DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION WAS VIOLATED BY THE TRIAL COURT PERMITTING THE STATE TO PRESENT ITS MEDICAL EVIDENCE VIA A WITNESS WHO HAD NO INVOLVEMENT IN THE INVESTIGATION OF THE DEATHS. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10. 5 The court granted defendant bail pending appeal. 10 A-1244-13T1 POINT II THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE BY DECLINING TO CHARGE THE JURY AS TO JOINT POSSESSION. POINT III THE TRIAL COURT ERRED IN DENYING BOTH DEFENDANT'S MOTION FOR DISMISSAL AT THE CONCLUSION OF THE STATE'S CASE AND FOR A NEW TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10. A. The State Failed to Sustain Its Burden of Introducing Sufficient Evidence to Support the Charges. B. The Verdict was Manifestly Against the Weight of the Evidence. POINT IV THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN DENYING DISCOVERY AS TO THE DECEDENTS' MEDICAL RECORDS. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10. POINT V THE STATE PRESENTED INCOMPLETE AND MISLEADING TESTIMONY TO THE GRAND JURY, AND PROVIDED DEFICIENT LEGAL INSTRUCTIONS, NECESSITATING VACATION OF THE CONVICTIONS AND DISMISSAL OF THE INDICTMENT. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 8. A. The State Presented Incomplete and Misleading Testimony As to a Crucial Issue. B. The State's Legal Instructions to the Grand Jury Were Insufficient and Misleading. 11 A-1244-13T1 II. The principal issue on appeal is whether Dr. Shaikh's testimony violated defendant's right of confrontation.6 We are guided by principles our Supreme Court enunciated in Bass, 224 N.J. at 285. The Bass Court applied Confrontation Clause principles established in Crawford v. Washington, 541 U.S. 36 (2004), to a case in which an assistant county medical examiner testified based on the autopsy of a recently deceased county medical examiner. Bass, 224 N.J. at 311-21. Bass was charged 6 Although defense counsel did not expressly reference the Confrontation Clause in objecting to Dr. Shaikh's testimony, she preserved the issue by seeking to exercise her rights and objecting as necessary. See State v. Wilson, 227 N.J. 534, 543 (2017) (noting Confrontation Clause issue preserved under similar circumstances); State v. Bass, 224 N.J. 285, 312 (2016). Before trial began, defense counsel objected to Dr. Shaikh's testimony because the State provided no report of his opinion. The court overruled the objection. With the prosecutor's concurrence, the court ruled Dr. Shaikh could do no more than "rubber stamp what Dr. Hua said" and "not deviat[e] from that one iota." Before Dr. Shaikh testified, the defense renewed its objection, contending that by presenting Dr. Hua's opinions through Dr. Shaikh, the State would impermissibly rely on hearsay, and deprive the defense of its ability to cross-examine Dr. Hua. The court overruled the objection, stating that Dr. Shaikh could rely on Dr. Hua's findings, consistent with N.J.R.E. 703, and the defense could call Dr. Hua if it wanted, which defense counsel responded it was not obliged to do. 12 A-1244-13T1 with the fatal shooting of one victim, Jessica Shabazz, and the non-fatal shooting of another, James Sinclair. Id. at 290. The assistant medical examiner, Dr. Frederick DiCarlo, read significant portions of the report of the deceased examiner, Dr. Jay Peacock, who opined that Shabazz bled as she ran away from the defendant, and died from a single gunshot wound to the back. Id. at 318. As in Bass, we must first decide whether the absent medical examiner's report was "testimonial." Id. at 316. That is a threshold question because the United States Supreme Court held in Crawford that the confrontation right applies to a "testimonial statement" against a defendant. 541 U.S. at 68. "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 68-69. A prosecutor may introduce "testimonial" hearsay statements only if the criminal defendant is able to cross-examine the declarant, or the declarant is unavailable and the defendant had a prior opportunity to cross-examine. Id. at 53-54. Applying a "fact-specific analysis," Bass, 224 N.J. at 317 n.9, the Bass Court noted an active homicide investigation had already begun when the autopsy was performed; an investigator for the county prosecutor observed the autopsy; and the medical 13 A-1244-13T1 examiner transmitted evidence to the investigator. Id. at 316- 17. Based on those facts, the Supreme Court held that the autopsy report was testimonial because its "primary purpose . . . was to establish facts for later use in the prosecution of [the] case." Id. at 317; see also Davis v. Washington, 547 U.S. 813, 822 (2006). We reach the same conclusion here. As the RIMEs noted, the reason for the investigation was the "suspicious" circumstances of the two deaths. Drug use was obvious, as the RIMEs stated an empty glycine bag and a straw were found on a shiny disk on the bed near Coppola's body. Virtually any fatal drug overdose case raises the specter of a violation of N.J.S.A. 2C:35-9. The medical examiner was required to perform an autopsy because the deaths were suspicious. See N.J.S.A. 52:17B-86 (mandating investigation of human deaths "under suspicious circumstances"); N.J.A.C. 13:49- 1.1(a)(2) (same). Dr. Hua provided his autopsy report to the county prosecutor. See N.J.S.A. 52:17B-87, -88. Dr. Shaikh explained that "[a]ll the medical/legal autopsies or the autopsies performed by the medical examiner are done . . . in a forensic setting. . . . cognizant of preserving evidence and chain of custody." At least by the time Dr. Hua amended his reports to conclude that heroin or morphine intoxication was a cause of death, the primary purpose was to establish facts for later use at a trial. 14 A-1244-13T1 In Bass, Dr. DiCarlo reviewed Dr. Peacock's autopsy report and photographs, inspected the crime scene, and examined the clothing Shabazz wore when she died, but Dr. DiCarlo did not write his own report. 224 N.J. at 317-18. Rather, he wrote a one- sentence letter to the prosecutor stating that he reviewed Dr. Peacock's "post-mortem examination and autopsy report" and agreed with his findings. Id. at 318. Over objection, the State prompted Dr. DiCarlo at trial to "read the contents of various portions of Dr. Peacock's autopsy report, as if [he] had been present at the autopsy and Dr. Peacock's findings were his own." Ibid. Included among Dr. DiCarlo's readings was Dr. Peacock's ultimate conclusions as to cause and manner of death. Ibid. The Court found this violated the defendant's right of confrontation.7 The Court began with the premise established in State v. Michaels, 219 N.J. 1 (2014), that "a truly independent reviewer or supervisor of testing results can testify to those results and to his or her conclusions about those results, without violating a defendant's confrontation rights, if" the independent reviewer or supervisor meets three requirements. Bass, 224 N.J. at 315 (quoting Michaels, 219 N.J. at 45-46). The testifying 7 However, the Court did not reverse the defendant's convictions on that ground because it had already found the trial court committed reversible error in limiting the defendant's cross- examination of Sinclair. Id. at 291. 15 A-1244-13T1 reviewer must (1) be "knowledgeable about the testing process"; (2) "independently verif[y] the correctness of the machine-tested processes and results"; and (3) "form[] an independent conclusion about the results." Ibid. (quoting Michaels, 219 N.J. at 45-46). The Court found those principles applied in Bass, notwithstanding that Michaels and a companion case, State v. Roach, 219 N.J. 58 (2014), involved "the evaluation of machine-generated data" – blood analysis in Michaels and DNA analysis in Roach – and Bass involved an autopsy. Bass, 224 N.J. at 316. The Court held that Dr. DiCarlo's testimony did not meet the Michaels standard. Id. at 318. Dr. DiCarlo "was permitted to engage in precisely the type of 'parroting' of the autopsy report that has been held to violate the Confrontation Clause." Id. at 319. The Court reached that conclusion notwithstanding that "Dr. DiCarlo was asked to generally comment about autopsy techniques based on his own expertise, and offered independent observations and conclusions on several autopsy photographs." Id. at 318. "[A] testimonial report that is not admitted into evidence can engender a violation of the Confrontation Clause if that report is 'integral' to the testimony of a substitute witness." Id. at 317. The Court noted that "Dr. DiCarlo could have testified as an independent reviewer of the information generated by the autopsy," and offered an opinion "entirely on the basis of his own review 16 A-1244-13T1 of the evidence." Id. at 319. His failure to do so offended the Confrontation Clause. Ibid.8 Applying the principles set forth in Bass, we conclude that Dr. Shaikh's testimony violated defendant's confrontation rights. Like Dr. Peacock's opinion in Bass, Dr. Hua's opinion was integral to his successor's testimony. Dr. Shaikh did not even write a one-sentence report, as did Dr. DiCarlo. He headlined his testimony by expressing his agreement with, and adopting verbatim, Dr. Hua's conclusion as to the cause and manner of death of each victim. Dr. Shaikh also paraphrased at length Dr. Hua's findings regarding his external and internal examinations. Dr. Shaikh did not independently verify the correctness of Dr. Hua's results; notably, he failed to view the histopathology slides, contending they would not have changed his conclusions. Although Dr. Shaikh, like Dr. DiCarlo, offered independent observations and conclusions, Dr. Shaikh's opinion was intertwined with Dr. Hua's. In summation, the prosecutor highlighted that "Dr. Shaikh said he reviewed the autopsy report that was . . . 8 The Court recognized medical examiners may sometimes become unavailable when "a medical examiner who conducted an autopsy dies, becomes incapacitated or relocates out of state before trial." Ibid. However, with proper planning, a substitute expert can still comply with the command of the Confrontation Clause. Id. at 320. 17 A-1244-13T1 done by Dr. Hua, and he agreed with his findings . . . ." In sum, the State presented the opinions of two experts. Yet, confrontation of the first was denied entirely, and confrontation of the second was limited by the second's reliance on the first.9 As defendant preserved her confrontation clause claim, we must reverse the conviction unless we are persuaded that the error was "harmless beyond a reasonable doubt." See Bass, 224 N.J. at 307-08 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). Although the evidence of heroin ingestion was overwhelming, we are not satisfied, beyond a reasonable doubt, that the violation of defendant's confrontation rights was harmless. Once the jury determined that defendant distributed heroin, the critical issue was causation. The State was required to prove that the ingestion of the heroin was "an antecedent but for which the death would not have occurred"; and the death was not "too remote . . . to have a just bearing on the defendant's liability", or it was not "too dependent upon conduct of another person which was unrelated to the . . . ingestion of the [heroin] or its effect as to have a just bearing on the defendant's liability." N.J.S.A. 9 We note that the court, in delivering the model charge on consideration of expert opinion in its final instructions to the jury, identified all the experts who testified at trial except Dr. Shaikh. No apparent explanation was given. However, the omission only exacerbates the prejudice of Dr. Shaikh's testimony. 18 A-1244-13T1 2C:35-9(b). The State's proof of causation rested upon the dual opinions of Dr. Shaikh and Dr. Hua. As a result of the deprivation of defendant's right of confrontation, neither opinion was fully tested. Dr. Shaikh repeated the causation opinions of Dr. Hua, which lacked the "why and wherefore" that supported them. See Townsend v. Pierre, 221 N.J. 36, 54 (2015). Dr. Hua's autopsy addenda simply provided his revised conclusions without any explanation or discussion. Also problematic was Dr. Shaikh's statement regarding the medical examiner's standard operating procedure for cases involving multiple causes of death. Regarding Malaker, he stated that "as a routine practice" medical examiners cite drug use as the principal cause of death, and any underlying health condition as a contributing cause. Dr. Shaikh did not expressly state that heroin use was a "but for" cause of death in Malaker's particular case. In connection with Coppola, he stated "it's always appropriate as a convention of medical examiners" to blame all of the drugs in a person's system, "as long as there are drugs that can cause a person's demise." Dr. Shaikh did not expressly state that heroin was a "but for" cause of Coppola's death. Thus, we are not persuaded, beyond a reasonable doubt, that denial of defendant's confrontation right was harmless. We reverse 19 A-1244-13T1 defendant's two first-degree convictions for causing drug-induced deaths, and remand for a new trial. III. Defendant's remaining points deserve relatively brief discussion. We are unpersuaded by defendant's argument that the trial court was obliged to charge joint possession as a lesser- included offense of distribution. There was no "rational basis . . . in the evidence for a jury" to acquit defendant of distribution and convict her of joint possession. See State v. Savage, 172 N.J. 374, 396 (2002). In her recorded interview, defendant denied possessing heroin at all. The State's circumstantial evidence was that she possessed it, and then sold it to Malaker, who used Coppola's funds. There was no evidence in the record for the jury to conclude that defendant jointly possessed the heroin with Malaker or Coppola. Defendant misplaces reliance on State v. Morrison, 188 N.J. 2, 19-20 (2006), where the evidence supported a joint purchase by the defendant and a cohort, who later died. We also do not disturb the trial court's denial of defendant's motion for acquittal at the close of the State's case, and for a new trial after the verdict. Applying the familiar and indulgent standard of State v. Reyes, 50 N.J. 454, 458-59 (1967), the court decided that the State had presented sufficient evidence on all 20 A-1244-13T1 three counts for the case to go to the jury, although the judge acknowledged that the evidence of distribution was marginal. We apply the same standard of review as does the trial court. State v. Dekowski, 218 N.J. 596, 608 (2014). We agree with the trial court's assessment that the evidence of distribution was far from overwhelming. Yet, the circumstantial evidence was sufficient, substantially for the reasons the trial judge set forth. As for the first-degree counts, putting aside the confrontation right violation, a reasonable jury could find causation and guilt based on the favorable opinions of Drs. Hua, Shaikh and Adams, and the "favorable inferences which reasonably could be drawn therefrom." Reyes, 50 N.J. at 459. We also discern no error in the trial court's denial of defendant's pretrial motion to compel the State to produce Coppola's medical records, and Malaker's psychological and medical records (with the exception of records of her asthmatic condition for one year prior to her death, which the court ordered released). We lack the benefit of defendant's written motion and supporting certification, if any. See Cmty. Hosp. Grp. v. Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) (stating an appellate court is not "obliged to attempt review of an issue when the relevant portions of the record are not included"). There also is no indication that the State possessed or controlled the 21 A-1244-13T1 requested records, or that defendant provided notice to the victims' estates, which likely possessed them. See State v. Kane, 449 N.J. Super. 119, 132-34 (App. Div. 2017) (finding State was not obliged to produce medical records of victim that it did not possess or control, and suggesting that victim was entitled to notice of defendant's request for her mental health records); N.J.R.E. 506(a) (noting that physician-patient privilege may be claimed by the personal representative of a deceased patient); N.J.R.E. 505 (by incorporating N.J.R.E. 504 standard, providing that psychologist-patient privilege may be claimed by personal representative of deceased patient).10 In any event, defendant did not demonstrate that the requested production of privileged medical records was essential to protect her constitutional right to a fair trial. See Kane, 449 N.J. Super. at 135 (stating that privilege is not subject to a general equitable balancing with the requester's need; rather, the court may pierce it "only in the most narrow of circumstances, such as where a privilege is in conflict with a defendant's right to a constitutionally guaranteed fair trial" (quoting State v. Mauti, 208 N.J. 519, 538 (2012)). In sum, we discern no abuse of discretion. Id. at 132. 10 Trial preceded adoption of N.J.R.E. 534, which consolidated the privileges of mental health patients. 22 A-1244-13T1 We also reject defendant's contention that the trial court erred in denying her motion to dismiss the indictment. Defendant contends that a prosecutor's office detective mischaracterized, before the grand jury, statements made by the man known as Fat Boy Jon, who gave numerous – in some respects conflicting – statements to law enforcement about defendant's possession and distribution of heroin at his house.11 The motion to dismiss is "directed to the sound discretion of the court." State v. Williams, 441 N.J. Super. 266, 272 (App. Div. 2015). Furthermore, "dismissal of an indictment is a draconian remedy and should not be exercised except on the clearest and plainest ground." Id. at 271-72 (quoting State v. Peterkin, 272 N.J. Super. 25, 38 (App. Div. 1988)). Even assuming the detective mischaracterized Fat Boy Jon's statements by presenting them as coherent, instead of inconsistent and equivocal, that is not sufficient to warrant reversal. Even absent those statements, the "grand jury could reasonably believe that a crime occurred and the defendant committed it." State v. Nicholson, 451 N.J. Super. 534, 541-42 (App. Div. 2017) (quoting State v. Feliciano, 224 N.J. 351, 380-81 (2016)). Indeed, the 11 Although the prosecutor expressed the intention to call him as a witness at trial, he reportedly was prepared to invoke his right to remain silent, and the State did not call him. 23 A-1244-13T1 petit jury reached that conclusion beyond a reasonable doubt without Fat Boy Jon's testimony. IV. The State contends the court erred in imposing a sentence in the second-degree range, citing State v. Megargel, 143 N.J. 484, 496-97 (1996). We may not reach the issue, as the State's notice of appeal was not filed within ten days, as required by N.J.S.A. 2C:44-1(f)(2). The time limit is strictly enforced. State v. Sanders, 107 N.J. 609, 616 (1987); State v. Watson, 183 N.J. Super. 481, 484 (App. Div. 1982). After oral argument, the State filed a motion to relax the deadline, but the time-frame is jurisdictional. Ibid.; see also State v. Gould, 352 N.J. Super. 313, 318-19 (App. Div. 2002) (vacating for lack of jurisdiction court's prior order granting State's motion to file late notice of appeal and dismissing appeal). Therefore, we are constrained to deny the motion, despite the minor deviation from the deadline. V. In sum, we affirm the conviction of third-degree distribution of heroin; reverse the convictions of first-degree strict liability causing drug-induced deaths; and remand for further proceedings consistent with this opinion. Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.