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Tuesday, September 19, 2017

Spring Municipal Court Law Review 2017

Spring Municipal Court Law Review 2017
  By Kenneth Vercammen, Esq.

1. Municipal Court can stay DL suspension after DWI if appeal
 State v. Robertson 228 NJ 138 (2017)
The Crowe factors are not a good fit to assess license suspensions in driving while intoxicated (DWI) cases. Defendants who seek a new trial before the Law Division should be presumptively eligible for a stay of a driver’s license suspension. The State can overcome that presumption by showing that a stay would present a serious threat to the safety of any person or the community. If no conditions would mitigate that risk, the court should not stay the sentence. If a defendant is convicted of DWI by the Law Division, the defendant has the burden to justify a stay of a driver’s license pending appeal to the Appellate Division by demonstrating the three elements set forth in Rule 2:9-4. If a stay is granted, the court may impose appropriate conditions similar to those available after a defendant’s conviction in municipal court. Municipal court and trial judges should set forth reasons on the record when they rule on a stay motion. (A-58-14)

2. DNA on towel not admissible without proper foundation and chain of custody
State v Mauti 208 NJ 519 (2017)
A jury found defendant guilty of third degree aggravated criminal sexual contact and fourth degree criminal sexual contact and not guilty of first degree aggravated sexual assault and second degree sexual assault. Defendant is a physician. The complaining witness is his sister-in-law. The court reverse and remand for a new trial.
The court hold the trial judge should have excluded a towel containing defendant's semen based on the absence of competent evidence linking it to the alleged sexual assault. The towel also constituted inadmissible hearsay by conduct under N.J.R.E. 801(a)(2).
The judge also abused his discretion by permitting the State to call five fresh-complaint witnesses and thereafter deciding not to instruct the jury on fresh-complaint testimony. Defense counsel’s acquiescence to the trial judge’s decision not to charge the jury on fresh-complaint did not constitute invited error.
Finally, The court conclude that the trial court properly admitted a redacted version of a letter sent by defense counsel to the prosecutor as an adopted admission under N.J.R.E. 803(b)(3). Under these circumstances, The court reject defendant’s argument that defense counsel’s letter falls within the ambit of "plea negotiations," as that term is used in N.J.R.E. 410. Our analysis is guided by the federal courts’ review of Fed. R. Evid. 410, the source rule of N.J.R.E. 410.
As a matter of first impression in this State, The court adopt the analytical approach used by the Fifth Circuit Court of Appeals in United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978) to determine when interactions between the State’s representative and defense counsel constitute protected “plea negotiations” under N.J.R.E. 410. This approach requires a trial judge to determine: (1) whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion; and (2) whether the accused's expectation was reasonable given the totality of the objective circumstances. The State bears the burden of proof. Because this two-tiered approach requires a fact-sensitive analysis, the trial judge should conduct an N.J.R.E. 104 hearing to resolve any disputed facts.  A-3551-12T3

3. Under new court rules, defendant entitled to discovery prior to new pre-detention hearing
State v Robinson 448 NJ Super. 501 (App. Div 2017)
The opinion addresses the scope of the discovery, which the State must produce prior to a pretrial detention hearing held under the Bail Reform Act, N.J.S.A. 2A:162-15 to -26. Specifically, the court construes Rule 3:4-2(c)(1)(B), which requires the prosecutor to produce "all statements or reports in its possession relating to the pretrial detention application."
The court rejects the State's argument that its discovery obligation is limited to producing the probable cause affidavit and the preliminary law enforcement information report (PLEIR). The rule obligates the prosecutor to provide a defendant with those materials in the State's possession that relate to the facts on which the State bases its pretrial detention application. In this case, the probable cause affidavit relied on eyewitness identification of defendant, and the opinion affirms the trial court's order requiring the prosecutor to provide defendant with the two eyewitness statements, photo arrays, a surveillance video, and the initial police reports. A-1891-16T2

4. If Defendant takes witness stand they can be cross examined on inconsistent statements after Miranda
 State v. Kucinski 227 NJ 603 (2017)
Defendant waived his right to remain silent when he took the witness stand and therefore the State permissibly questioned defendant on cross-examination about the inconsistencies between his post-arrest statement to police and his statement on direct-examination at trial even though he initiallyrequested an attorney. (A-58-15)

5. School Zone map not admissible if not properly authenticated State v. Wilson 227 NJ 534  (2017)
The map commissioned and adopted by the Board pursuant to N.J.S.A. 2C:35-7.1(e) is nontestimonial and its admission therefore did not violate Wilson’s confrontation rights. Further, such maps are admissible, if properly authenticated, under N.J.S.A. 2C:35-7.1(e) and as public records pursuant to N.J.R.E. 803(c)(8). Because the map was not properly authenticated, however, the Court is constrained to reverse the Appellate Division’s judgment that the map was properly admitted into evidence at trial and to remand the matter for a new trial on the count of defendant’s conviction that depended on the map. (A-42-15)

6. No warrantless entry of homes State v. Legette227 NJ 460  (2017)
Chrisman and Bruzzese do not support warrantless entries into detainees’ homes; they apply only to cases in which a suspect has been arrested prior to the officer’s entry into the home. Here, because the State failed to meet its burden of demonstrating that the warrantless entry fell within a recognized exception to the warrant requirement, the entry was illegal and the evidence obtained as a result of that entry should have been suppressed. (A-12-16)

7. Defendant’s furtive movement after car stop justified removal of passenger  State v. Bacome228 NJ 94 (2017)
The heightened-caution standard announced in Smith, supra, 134 N.J. at 618-20, remains the proper test for determining the appropriateness of ordering a passenger from a car. Under the Smith test, defendant’s furtive movements inside a recently stopped vehicle provided an objectively reasonable basis for officers’ exercising heightened caution, justifying removal of the passenger. (A-9-15)

8. Plain feel search not permitted with strip search for DPState v Evans  449 NJ Super. 66 (App. Div. 2017)
In this appeal, the court considered the application of the "plain feel" exception to the warrant requirement, Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993); State v. Jackson, 276 N.J. Super. 626, 628 (App. Div. 1994), to a strip search that was conducted after defendant was arrested on a warrant for failing to pay a $6.50 traffic fine. In the absence of a warrant or consent, N.J.S.A. 2A:161A-1 prohibits a strip search of a person "detained or arrested for commission of an offense other than a crime" unless the search is based on probable cause and "a recognized exception to the warrant requirement." N.J.S.A. 2A:161A-1.
Guidelines issued by the Attorney General's Office set forth even more exacting criteria to be satisfied before a strip search is conducted. The court concluded the plain feel exception did not apply and, further, that the seizure of drugs from defendant's person was not objectively reasonable. The court reversed defendant's convictions and remand for a hearing to determine whether the search of an automobile pursuant to a search warrant was sufficiently free of taint from the unlawful search and seizure. A-0489-14T1

9. Limited warrantless search for credentials ok here
State v Hamlett 449 NJ Super. 159 (App. Div. 2017)
The court held that, with respect to a separate warrantless search of the center console of a rental vehicle defendant was driving, the police were authorized to conduct a limited search for credentials after defendant was unable to produce his driver's license or the vehicle's registration, insurance card, and rental agreement.
Defendant challenged the seizure of drugs and a handgun from his Galloway Township motel room pursuant to a search warrant based on probable cause issued by an Atlantic City Municipal Court judge. The court held that although the search warrant application failed to comport with the procedures promulgated for the cross-assignment of municipal court judges pursuant to State v. Broom-Smith, 201 N.J. 229 (2010), defendant's constitutional rights were not violated by the procedural deficiency and therefore suppression of the contraband found in defendant's motel room is not warranted.

10. Letter by defendant admitting culpability admitted State v Marroccelli 448 NJ Super. 349 (App. Div. 2017)
In this appeal from her conviction for vehicular homicide, defendant argued that the trial judge erred in excluding a letter she alleged her husband wrote in which he accepted responsibility, six months after the fact, for driving the car at the time of the accident that caused the victim's death. The court concluded that defendant presented a prima facie showing of authenticity based upon her testimony at a Rule 104 hearing that she observed her husband as he wrote and signed the note. Therefore, The court held that the judge should have admitted the note into evidence and given the jury the opportunity to subject it and defendant's testimony to more intense review. The court also concluded that the trial judge erred in barring defendant from introducing evidence of her driving habits in support of her contention that she was not driving on the night of the accident. A-5386-13T3 

11. TRO vacated where defendant not served
A.M.C. VS. P.B. 447 NJ Super. 402 (App. Div. 2016)
The Family Part found defendant physically assaulted his wife twice over a three-week period. Applying the two-prong analysis in Silver v. Silver, 387 N.J. Super. 112, 125–27 (2006), the judge found an FRO was not necessary to protect plaintiff from future acts or threats of violence. The court held the Family Part failed to adequately consider the inherently violent nature of the predicate acts. Under these circumstances, the need to issue an FRO was "self-evident." Silver, supra, 387 N.J. Super. at 127.
Defendant, a Newark Police Officer, was not served with the TRO. Notwithstanding defendant’s failure to object, N.J.S.A. 2C:25-28l, N.J.S.A. 2C:25-28n, and the Domestic Violence Procedures Manual makes the Judiciary responsible to serve defendant with the TRO. The court held the trial court had an obligation to determine what caused this systemic failure. The court further held the trial court erred as a matter of public policy when it considered the Judiciary's failure to carry out this legal responsibility as a factor in favor of denying plaintiff's application for an FRO. A-4730-14T3

12 Live witness not mandatory at detention hearing State v Ingram 449 NJ Super. 94 (App. Div. 2016)
   Defendant appealed from an order detaining him pretrial pursuant to the Bail Reform Act (the Act), N.J.S.A. 2A:162-15 to -26. The State presented the complaint-warrant, the affidavit of probable cause, the Preliminary Law Enforcement Incident Report and the Public Safety Assessment to establish probable cause for defendant's arrest and grounds for detention. Collectively, the documents demonstrated that a firearm had been discharged, police officers personally observed defendant in possession of a gun and seized the weapon and spent shell casings. Pretrial Services recommended that defendant be detained, or released with the highest level monitoring, including electronic monitoring.
Defendant objected, arguing a live witness with knowledge of the incident sufficient to permit meaningful cross-examination was required. The judge overruled the objection, considered the State's proffered evidence and entered the order of detention.
On appeal, defendant argued that permitting the State to establish probable cause by proffer and without calling a witness violated his due process rights and the Act. The Court disagreed and affirmed the detention order, finding that allowing the State to proceed by proffer did not violate due process or the Act. However, the court noted that at detention hearings under the Act, the judge retains discretion to reject the adequacy of the State's proffer and compel production of a "live" witness. A-1787-16T6

13. OPRA permits 3rd parties to request copies of other persons OPRA requests
Scheeler v Governor et al 448 NJ Super. 333 (App. Div. 2017)
The Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, does not permit government agencies to deny a citizen access to all requests for public records by third-parties, and Gannett N.J. Partners, LP v. County of Middlesex, 379 N.J. Super. 205 (App. Div. 2005), does not provide authority for the blanket denial of access to all third-party OPRA requests. (A-1236-14T3)

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1. Municipal Court can stay DL suspension after DWI if appeal
 State v. Robertson
2. DNA on towel not admissible without proper foundation and chain of custody
State v Mauti
3. Under new court rules, defendant entitled to discovery prior to new pre-detention hearing
State v Robinson
4. If Defendant takes witness stand they can be cross examined on inconsistent statements after Miranda
 State v. Kucinski
5. School Zone map not admissible if not properly authenticated State v. Wilson
6. No warrantless entry of homes State v. Legette
7. Defendant’s furtive movement after car stop justified removal of passenger 
8. Plain feel search not permitted with strip search for DP State v Evans  
9. Limited warrantless search for credentials ok here
State v Hamlett
10. Letter by defendant admitting culpability admitted State v Marroccelli
11. TRO vacated where defendant not served
A.M.C. VS. P.B
12 Live witness not mandatory at detention hearing State v Ingram
13. OPRA permits 3rd parties to request copies of other persons OPRA requests
Scheeler v Governor et al
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Sunday, September 17, 2017


Following a defendant's detention under the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26, the State generally has ninety days to indict defendant, N.J.S.A. 2A:162-22(a)(1)(a), and 180 days after the indictment to try defendant, N.J.S.A. 2A:162-22(a)(2)(a). Both periods allow for "excludable time" and for the State to move to continue detaining defendant provided the State can make certain showings. N.J.S.A. 2A:162-22(a)(1), (2). 

In accordance with the CJRA, defendant has been detained in jail since early March 2017. He contends that the time for his trial under the speedy trial provisions of the CJRA is about to be reached. On leave granted, he appeals three orders that found a total of sixty-seven days of "excludable time," N.J.S.A. 2A:162-22(a), under the CJRA. We hold that our standard of review of the period to "be excluded in computing the time in which a case shall be indicted or tried" under N.J.S.A. 2A:162-22(b) is de novo. We also hold that we apply the traditional deferential standard of review to the trial court's factual findings concerning the amount of time excluded. Applying these standards, we affirm the orders that found sixty-seven days of excludable time. 


The grand jury indicted defendant, a sitting Superior Court judge, for official misconduct, N.J.S.A. 2C:30-2b, and two counts of hindering the apprehension of her boyfriend, the subject of an active arrest warrant for robbery. N.J.S.A. 2C:29-3a(1) and (2). The indictment alleged that with a purpose to benefit herself and her boyfriend, defendant refrained from performing a duty inherent in the nature of her office, i.e., to "enforce an arrest warrant . . . by failing to adequately notify the . . . Police Department of . . . [her boyfriend's] intended appearance or presence at her residence." The hindering counts alleged defendant "harbored or concealed" her boyfriend and offered or provided aid to avoid discovery or apprehension or to effect escape. The Law Division judge granted defendant's motion to dismiss the official misconduct charge but denied her motion as to the two hindering counts. The court granted each party's motion for leave to appeal. 

The court affirmed, holding that under the circumstances presented, the judge did not have a duty, inherent in her office, to notify police of her boyfriend's location or that he was shortly appearing at her home. The court also concluded the State had produced some evidence before the grand jury to support the indictment on the hindering counts. 

Monday, September 04, 2017


Defendant used his cell phone to film up the unsuspecting victim's skirt. The trial court denied defendant's motion to dismiss the indictment and ruled this "upskirting" incident was a third-degree invasion of privacy under N.J.S.A. 2C:14-9(b) (2004), now renumbered N.J.S.A. 2C:14-9(b)(1). Defendant claims the victim's intimate parts were not "exposed" as required by N.J.S.A. 2C:14-9(b) (2004) because the victim was wearing pantyhose. The Appellate Division holds that "exposed" means "open to view" and "visible" and that defendant violated N.J.S.A. 2C:14-9(b) (2004) because the victim's inner thighs and buttocks were open to view and visible through her sheer pantyhose. The Appellate Division also holds the meaning of "exposed" in N.J.S.A. 2C:14-9(b) (2004) was not altered by the Legislature's later enactment of a broader fourth-degree offense of filming "undergarment-clad intimate parts," N.J.S.A. 2C:14-9(b)(2), which need not be open to view or visible. 

Friday, September 01, 2017

Canine dog sniff cannot be long delay State v. Mark Dunbar (A-94-15

State v. Mark Dunbar (A-94-15) (077839)
Argued April 24, 2017 -- Decided July 10, 2017

FERNANDEZ-VINA, J., writing for the Court.

In this appeal, the Court considers the appropriate standard for police officers to conduct a canine sniff for the detection of narcotics. In particular, the Court determines whether police require reasonable suspicion of a drug offense to effect a canine sniff during a motor vehicle stop.

Officer Tardio recognized the car as that of defendant Mark Dunbar. On May 2, 2013, the Bradley Beach Police received information from the Manasquan Police Department that a female reported she “was getting her drugs from Mark Dunbar.” The anonymous informant also reported that Dunbar used a green Ford Focus, with a New Jersey license plate matching that of the car parked at QuickChek, to distribute narcotics. 

Officer Tardio pulled into the QuickChek parking lot to initiate a motor vehicle stop, exited his patrol car, and approached the suspect vehicle. While Officer Tardio spoke with Dunbar, Officer Major arrived on the scene as backup. Officer Major was accompanied by a narcotics canine. Upon Officer Major’s arrival, Officer Tardio instructed Dunbar to exit the vehicle and walk toward Officer Major while he spoke with Lisa Parker. Then, Lisa’s sister, Deborah Parker, exited the QuickChek. At that time, Officer Tardio confirmed that all three individuals arrived at the QuickChek together, connecting them to Dunbar’s vehicle. 

After identifying all three individuals, Officer Tardio “immediately” contacted dispatch to request a warrant search; the search returned an outstanding warrant for Deborah Parker. Officer Tardio requested the presence of a female officer to arrest Deborah Parker. Officer Tardio testified that it “maybe” took about two minutes for the female officer to arrive. In the meantime, Officer Tardio spoke with Dunbar and advised him of the recent allegations that he was selling drugs. Dunbar denied any wrongdoing. Officer Tardio informed Dunbar that Officer Major and his narcotics canine would conduct a sniff around the vehicle’s exterior. The canine positively indicated the presence of narcotics. The record is unclear as to whether the canine sniff took place while the officers were waiting for the arrival of the female officer from Asbury Park or after she arrived.

Officer Tardio instructed Dunbar that he could consent to a search of his vehicle or have his car impounded pending a search warrant. Dunbar initially refused consent but changed his mind when a tow truck arrived. Officer Tardio read Dunbar his rights. With Dunbar’s permission, the officers searched the vehicle’s trunk, from which they recovered Xanax, oxycodone, and heroin. The officers arrested Dunbar and Deborah Parker. A Monmouth County grand jury indicted Dunbar for three counts of third-degree possession of controlled dangerous substances.

Prior to trial, Dunbar moved to suppress the drugs. The court granted Dunbar’s motion, holding that the officers did not have reasonable suspicion that Dunbar was engaged in a drug transaction in his vehicle in the QuickChek parking lot at that time and therefore could not perform a canine sniff. Furthermore, the court held that, based on the number of officers and the threat of towing his vehicle, Dunbar did not voluntarily provide consent.

Ten days later, the State moved for reconsideration in light of the then-recent United States Supreme Court decision, Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609 (2015). The trial court denied the motion. The court explained, “[t]he State has not met its burden of proof that the time for tasks necessitated by [Dunbar’s] traffic violation included the time of the dog sniff.” The court entered an order denying reconsideration. 
Prior to trial, the Appellate Division affirmed the suppression of the drugs. Citing prior Appellate Division cases, the court posited that New Jersey’s standard for canine sniffs is reasonable suspicion. The court concluded that the officers did not harbor reasonable suspicion that Dunbar or the Parker sisters were engaged in drug activity and found that the officers lacked reasonable suspicion to effectuate the canine sniff. The panel also affirmed the trial court’s holding on consent.
The Court granted the State’s motion for leave to appeal. 226 N.J. 543 (2016).

HELD: The Court adopts the federal standard barring unnecessary delays for the purpose of canine sniffs. Officers do not need reasonable suspicion of a drug offense provided that the canine sniff does not prolong the stop beyond the time required to complete the stop’s mission. 

1. The Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution equally guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” A lawful roadside stop by a police officer constitutes a seizure under both Constitutions. To justify such a seizure, a police officer must have a reasonable and articulable suspicion that the driver of a vehicle, or its occupants, is committing a motor-vehicle violation or a criminal or disorderly persons offense. During an otherwise lawful traffic stop, a police officer may inquire into matters unrelated to the justification for the traffic stop. An officer’s ability to pursue incidental inquiries, however, is not without limitations. Specifically, the incidental checks may not be performed “in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Rodriguezsupra, 135 S. Ct. at 1615.   
2. In United States v. Place, the United States Supreme Court held that a canine sniff does not constitute a “search” within the meaning of the Fourth Amendment. 462 U.S. 696, 706-07 (1983). The Court reasoned that a canine sniff is so limited in the manner of investigation and in the noncontraband items it reveals that it is “much less intrusive than a typical search.” Id. at 707. In Illinois v. Caballes, 543 U.S. 405, 408 (2005), the Court held that “a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed [upon the defendant’s] constitutionally protected interest in privacy.” In Rodriguez, supra, the Court reaffirmed its holding that, although an officer “may conduct certain unrelated checks during an otherwise lawful traffic stop,” the officer “may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” 135 S. Ct. at 1615. The federal standard does not require particularized reasonable suspicion to conduct a canine sniff during the course of a routine traffic stop. But if the canine sniff extends the traffic stop beyond the time reasonably required to complete the traffic stop’s purpose, the sniff is unlawful absent independent reasonable suspicion of criminal activity. (pp. 16-20)

3. The Appellate Division has echoed some of the federal approach regarding canine sniffs but has departed from the federal standard by requiring reasonable and articulable suspicion to justify canine sniffs

4. The Court now adopts the federal standard for canine sniffs. Accordingly, an officer does not need reasonable suspicion independent from the justification for a traffic stop in order to conduct a canine sniff but may not conduct a canine sniff in a manner that prolongs a traffic stop beyond the time required to complete the stop’s mission, unless he possesses reasonable and articulable suspicion to do so. In other words, in the absence of such suspicion, an officer may not add time to the stop.  

5. Applying this legal standard to Dunbar’s appeal, two issues arise: whether the canine sniff prolonged Officer Tardio’s traffic stop beyond the time reasonably required to address Dunbar’s parking infraction, and, if so, whether this delay was justified by independent reasonable suspicion that Dunbar possessed drugs at that time. The record does not provide sufficient information. The Court expresses no opinion as to whether the canine sniff prolonged the traffic stop or whether the totality of the circumstances generated reasonable suspicion that Dunbar possessed drugs at the time of the stop, leaving those determinations to the trial court on remand.  

The judgment of the Appellate Division is REVERSED and the matter is REMANDED for proceedings consistent with this opinion.

Sunday, August 27, 2017



The principal issue in this appeal from drug-related convictions was whether it was error to admit as lay opinion testimony under N.J.R.E. 701 the lead investigative detective's interpretation of drug-related slang and code words that defendant and others used in wiretapped conversations. The court concludes that the detective, who did not converse with the speakers, offered an expert opinion based on his training and experience. However, the court rejects defendant's argument that even as an expert, the detective was not permitted to opine about the meaning of words as defendant used them. The court also rejects the suggestion that investigative detectives are categorically barred from testifying as experts. Inasmuch as the State established the detective's qualifications as an expert, and in light of the other evidence of defendant's guilt, the court concludes that the mistaken admission of the detective's testimony as lay opinion was harmless. 

Tuesday, August 15, 2017


In this juvenile delinquency case where a fourteen year old was charged with aggravated sexual assault of an eleven-year-old child, neither penetration nor coercion was found by the trial judge, who nonetheless convicted the juvenile of endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The Legislature expressly stated its intent not to criminalize sexual contact between children less than four years apart in age absent either penetration or coercion. To the extent that the child endangerment statute might nonetheless be thought to include behavior of the nature found by the judge in this case, ambiguity in the construction of the statute must be resolved in favor of the juvenile both because the specific statute trumps the general statute and because ambiguous criminal statutes must be interpreted favorably to the accused. 

Sunday, August 06, 2017



The court considers whether Drug Court graduates seeking to expunge their criminal records pursuant to N.J.S.A. 2C:35-14(m) — the "Drug Court expungement statute," L. 2015, c. 261, §1 — must make a "public interest" showing as N.J.S.A. 2C:52-2(c)(3) requires for the expungement of certain third- and fourth-degree drug offenses. Based on the statute's plain language and legislative history, the court concludes that N.J.S.A. 2C:35-14(m)(2) imports the public interest requirement under N.J.S.A. 2C:52-2(c)(3). The court therefore vacates orders expunging the three applicants' criminal records and remands for application of the public interest test in light of In re Kollman, 210 N.J. 557 (2012), which applied the test to an expungement petition under Chapter 52. 

State v. Amed Ingram (A-56-16; 079079)

State v. Amed Ingram 
(A-56-16; 079079) 

Neither the statute’s plain language nor principles of due process require the State to present testimony from a live witness at every detention hearing. Instead, the State may proceed by proffer to try to satisfy its burden of proof and show that detention is warranted. Trial judges, however, retain discretion to require direct testimony when they are dissatisfied with the State’s proffer.