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Thursday, January 18, 2018

Police could not stop for only one broken taillight State v. Sutherland

Police could not stop for only one broken taillight
 State v. Sutherland (A-14-16)
Decided January 11, 2018
LaVECCHIA, J., writing for the Court.
The Court considers the constitutionality of an officer’s stop of a motor vehicle under the belief that the vehicle was in violation of N.J.S.A. 39:3-61(a) and -66 because one of the vehicle’s taillights was not operational.
A Toyota Camry that appeared to have a malfunctioning taillight passed Officer Carletta. Although the vehicle had four taillights in total, two on each side, and although only one light on the rear passenger side was not illuminated, Officer Carletta believed that the vehicle was in violation of the motor vehicle code. He executed a motor vehicle stop. Officer Carletta asked the driver, defendant Ryan Sutherland, for his driver’s license, motor vehicle registration, and proof of insurance. Officer Carletta returned to his vehicle to check defendant’s information. Upon confirming that defendant’s license was suspended, Officer Carletta issued two summonses: driving with a suspended license, and failure to maintain the vehicle’s “lamps” in violation of N.J.S.A. 39:3-66. A Morris County Grand Jury later indicted defendant and charged him with fourth-degree operating a motor vehicle during a period of license suspension for a second or subsequent driving-while-intoxicated conviction.
Defendant filed a motion to suppress the traffic stop and to dismiss the indictment, arguing that the traffic stop constituted an unreasonable seizure because his vehicle had three operable taillights, in compliance with the requirements of N.J.S.A. 39:3-61(a) and -66. The State countered that the stop was lawful because the malfunctioning taillight provided Officer Carletta with reasonable suspicion to stop the vehicle and because the stop was lawful under the “community caretaking” function by which police officers engage in protecting public safety. Officer Carletta testified at the hearing that he had stopped the vehicle both because he believed that any malfunctioning taillight constituted a violation of the statute and because he was engaging in community caretaking by letting defendant know that his vehicle was not in proper working order.
The trial court granted defendant’s motion to suppress evidence resulting from the motor vehicle stop, but the court denied his motion to dismiss the indictment. On the motor vehicle stop, the trial court agreed with defendant that Officer Carletta’s understanding of the maintenance-of-lamps statute had been “incorrect” and that defendant had not violated the statute because he had at least one functioning taillight on each side of the vehicle. The court concluded that Officer Carletta’s erroneous interpretation of the law could not pass constitutional scrutiny.
The Appellate Division granted leave to appeal and reversed the trial court. 445 N.J. Super. 358 (2016). Relying extensively on Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530 (2014), the panel determined that “even if the officer was mistaken that the inoperable tail light constituted a Title 39 violation, he had an objectively reasonable basis for stopping defendant’s vehicle.” Id. at 360. In reaching that conclusion, the panel questioned the continuing vitality of State v. Puzio, which had held “that where an officer mistakenly believes that driving conduct constitutes a violation of the law, but in actuality it does not, no objectively reasonable basis exists upon which to justify a vehicle stop.” 379 N.J. Super. 378, 383 (App. Div. 2005). The panel went on to conclude that the statute at issue here was ambiguous and that even if Officer Carletta’s interpretation of the statute was an objectively reasonable mistake of law, the stop was permissible pursuant to Heien. 445 N.J. Super. at 368–70. The panel’s reasoning made it unnecessary to reach the State’s argument about the applicability of the community caretaking doctrine. Id. at 371.
The Court granted defendant leave to appeal. 228 N.J. 246 (2016).
HELD: The Appellate Division erred in concluding that the holding in Heien is applicable here. The motor vehicle statutes pertinent here are not ambiguous. The officer’s stop of defendant’s motor vehicle was not an objectively reasonable mistake of law that gave rise to constitutional reasonable suspicion; the stop was therefore unconstitutional.

1. Under previous case law in this state, a police officer’s objectively reasonable mistake of fact does not render a search or arrest unconstitutional. Consistent with federal jurisprudence, the Court has held that Article I, Paragraph 7 of the New Jersey Constitution provides room for some mistakes by police. However, that principle applies only when the police behave reasonably.  
2. Until the Appellate Division decision in this case, the jurisprudence of New Jersey appellate courts had not held that reasonable mistakes of law would pass constitutional muster. In fact, courts had reached the opposite conclusion. See Puzio, 379 N.J. Super. at 382-83. The Puzio decision noted “a clear distinction between the present situation and those presented in cases where the officer correctly understands the statute but arguably misinterprets the facts concerning whether a vehicle, or operator, has violated the statute.” Id. at 382. In explaining its reasoning, the panel stated that “[i]f officers were permitted to stop vehicles where it is objectively determined that there is no legal basis for their action, ‘the potential for abuse of traffic infractions as pretext for effecting stops seems boundless and the costs to privacy rights excessive.’” Id. at 384. The panel also viewed the creation of an exception for a mistake of law as inconsistent with the exclusionary rule because “it would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey.” Ibid.
3. In Heien, the United States Supreme Court considered a police officer’s reasonable but erroneous interpretation of a motor vehicle statute. Chief Justice Roberts’s majority opinion noted that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” 135 S. Ct. at 536. After explaining that “[t]o be reasonable is not to be perfect,” and that the Fourth Amendment allows for reasonable mistakes of fact, the Chief Justice went on to explain that the Fourth Amendment reasonableness inquiry applies to mistakes of law just as it applies to mistakes of fact. Ibid. Based on the language of the North Carolina statute involved in Heien, Chief Justice Roberts concluded that the officer’s error of law was reasonable and thus provided the officer with reasonable suspicion to justify the traffic stop. Id. at 540. Importantly, Justice Kagan, joined by Justice Ginsburg, wrote a concurrence that has garnered support with states that have chosen to follow the Heien approach in their own search and seizure analyses. Critical to her agreement with the majority was her belief that erroneous interpretations of the law will pass Fourth Amendment scrutiny only when the law at issue is “‘so doubtful in construction’ that a reasonable judge could agree with the officer’s view.” Id. at 541 (Kagan, J., concurring). Such cases must necessarily involve a “really difficult” or “very hard question of statutory interpretation” and will thus be “exceedingly rare.” Ibid.
4. A number of states have subsequently adopted Heien’s holding. Importantly, however, a number of states have either followed or acknowledged Justice Kagan’s narrow interpretation of an objectively reasonable mistake of law. In State v. Scriven, 226 N.J. 20 (2016), the Court did not reach the question of whether to adopt Heien. The officer’s mistake of law in that case was not objectively reasonable and thus did not qualify as the type of “rare” case that involves an objectively reasonable mistake of law.
5. Defendant’s traffic stop was premised on perceived violations of two statutes. The statutes read together require that a motor vehicle only have two working rear lamps, with at least one working lamp on each side. See N.J.S.A. 39:3-61(a); N.J.S.A. 39:3-66. N.J.S.A. 39:3-66 mandates that the lamps “required by this article” must be kept in good working order. The statutes require one working taillight on each side of a vehicle. Thus, if a vehicle has two taillights on each side of the vehicle—more than the law requires—and one of those multiple taillights on one side is not working, a violation of N.J.S.A. 39:3-61(a) and -66, as was assumed and charged here, has not occurred. The officer’s erroneous application of the functioning taillight requirement was not an objectively reasonable mistake of law. This case does not present a basis for considering the application of Heien. Simply put, this was not a good stop. The judgment of the Appellate Division, premised on an application of Heien to the stop in this matter, is reversed.
6. The State also asserted community caretaking as an alternative basis to support the stop. The Appellate Division did not reach the argument in light of the manner in which it resolved the case. Accordingly, a remand is appropriate to allow the Appellate Division to address the unresolved argument advanced by the State.  
The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the Appellate Division for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, AND TIMPONE join in JUSTICE LaVECCHIA’s opinion.

Sunday, December 31, 2017

STATE OF NEW JERSEY VS. ANWAR BELTON A-0971-16T1

STATE OF NEW JERSEY VS. ANWAR BELTON 
A-0971-16T1 

In this PCR appeal, defendant collaterally challenged his conviction, after a guilty plea, to aggravated manslaughter. The panel concludes that defendant, in the course of his allocution, suggested a defense of others that was inconsistent with guilt; his waiver of that defense was not knowingly made; therefore, he did not present a sufficient factual basis of guilt. In reaching this conclusion, the panel applies the principles set forth in State v. Urbina, 221 N.J. 509 (2015), although that case involved a claim of self-defense, rather than the defense of others, suggested in the course of a guilty plea. In view of defendant's contemporaneous claim of innocence, the panel held that the failure to elicit a sufficient factual basis was of constitutional dimension and warrants PCR. 

Tuesday, December 26, 2017

STATE OF NEW JERSEY VS. ANWAR BELTON A-0971-16T1


 STATE OF NEW JERSEY VS. ANWAR BELTON 
A-0971-16T1 

In this PCR appeal, defendant collaterally challenged his conviction, after a guilty plea, to aggravated manslaughter. The panel concludes that defendant, in the course of his allocution, suggested a defense of others that was inconsistent with guilt; his waiver of that defense was not knowingly made; therefore, he did not present a sufficient factual basis of guilt. In reaching this conclusion, the panel applies the principles set forth in State v. Urbina, 221 N.J. 509 (2015), although that case involved a claim of self-defense, rather than the defense of others, suggested in the course of a guilty plea. In view of defendant's contemporaneous claim of innocence, the panel held that the failure to elicit a sufficient factual basis was of constitutional dimension and warrants PCR. 

Tuesday, December 19, 2017

Not criminal harassment to publish rude flyers State v. Burkert

Not criminal harassment to publish rude flyers
State v. Burkert (A-6-16) Decided December 19, 2017
ALBIN, J., writing for the Court.
This case tests the limits to which a broadly worded harassment statute, N.J.S.A. 2C: 33-4(c), can criminalize speech.
William Burkert and Gerald Halton were corrections officers, who held positions in different unions representing distinct classes of officers. Their relationship became particularly strained after Burkert read online comments attributed to Halton’s wife that Burkert felt insulted him and his family. Angered by the insulting online comments, Burkert retaliated. Burkert downloaded the Haltons’ wedding photograph. He then copied the photograph and made two flyers, writing lewd dialogue in speech bubbles over the faces of the bride and groom.
Halton testified that on January 8, 2011, he arrived at the employee garage of the Union County Jail and saw papers “blowing all over the place.” He picked one up and discovered Flyer #1. The next day, when Halton arrived at work, a sergeant handed him Flyer #2, which the sergeant had found in the area of the officers’ locker room. Halton identified the handwriting on both flyers as Burkert’s. On January 11, while Halton was engaged in union negotiations, a lieutenant handed him Flyer #2, stating, “This came out the other night.” Halton indicated that he “was a mess in negotiations,” went home, and never returned to work. Halton explained that he felt embarrassed and concerned for his safety and received psychological counseling and treatment.
Ten months after the January incidents, Halton filed criminal harassment charges against Burkert. Halton stated that he filed the charges only because the county had failed to properly discipline Burkert. He also filed a civil lawsuit against Burkert. During the county’s investigation into the flyers, Burkert admitted that he had prepared the flyers but denied circulating them. Burkert explained that he expressed himself through the flyers rather than “get physical with the guy.” Burkert retired as a corrections officer in September 2012.
The municipal court entered a guilty verdict against Burkert for harassing Halton on January 8 and 11 in violation of N.J.S.A. 2C: 33-4(c). The court found that Burkert made and circulated the flyers in the garage and locker room, that the bubble dialogue inscribed on the Haltons’ wedding photograph was “lewd and obnoxious,” and that such language would “seriously annoy any person, in this case Mr. Halton.” In a de novo trial before the Law Division, the court found Burkert guilty beyond a reasonable doubt of committing acts of harassment.
A panel of the Appellate Division reversed Burkert’s conviction, concluding “the commentary [Burkert] added to [Halton’s] wedding photograph was constitutionally protected speech.” 444 N.J. Super. 591, 594 (App. Div. 2016). The panel accepted the argument that “the altered photograph . . . was not directed to [Halton],” but rather to an audience of possibly willing listeners—other corrections officers. Id. at 601-02. The panel determined that the evidence did not support a finding that the flyers “were a direct attempt to alarm or seriously annoy” Halton or to invade his privacy rights. Id. at 601. The panel also found that the vulgar commentary on the flyers did not constitute criminal harassment. Id. at 603.
The Court granted the State’s petition for certification. 227 N.J. 377 (2016).
HELD: To ensure that N.J.S.A. 2C:33-4(c) does not exceed its constitutional reach in cases involving the prosecution of pure speech, repeated acts to “alarm” and “seriously annoy” must be read as encompassing only repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.
1
1. N.J.S.A. 2C:33-4 distinguishes between “communications” and “language” that violate the statute in subsection (a), and “conduct” and “acts” that do so in subsection (c). Although a “course of alarming conduct” or “repeatedly committed acts” can occur through communications and language alone, it is far from clear that the Legislature had in mind offensive speech as the object of N.J.S.A. 2C:33-4(c). That the primary thrust of N.J.S.A. 2C:33-4(c) is not to interdict speech, but rather conduct, is reinforced in State v. Hoffman, 149 N.J. 564 (1997).
2. Criminal laws touching on speech must give fair notice of where the line is set between what is permissible and proscribed and must be drawn with appropriate definiteness. A court can invalidate a statute that is substantially overbroad on its face if the statute reaches a substantial amount of constitutionally protected conduct. Such a drastic remedy, however, is not the only—and not even the preferred—approach. Provided that a statute is reasonably susceptible to an interpretation that will render it constitutional, courts must construe the statute to conform to the Constitution.
3. The vaguely and broadly worded standard in N.J.S.A. 2C:33-4(c) does not put a reasonable person on sufficient notice of the kinds of speech that the statute proscribes. The statute’s vagueness also gives prosecuting authorities undue discretion to bring charges related to permissive expressive activities. That, in turn, means that the statute—if not more narrowly defined—has the capacity to chill permissible speech. Under N.J.S.A. 2C:33-4(c), a person who, with the purpose to seriously annoy another, does seriously annoy another is guilty of harassment. Speech, however, cannot be transformed into criminal conduct merely because it annoys, disturbs, or arouses contempt. The First Amendment protects offensive discourse, hateful ideas, and crude language because freedom of expression needs breathing room and in the long run leads to a more enlightened society. Outside of the category of obscenity, courts should not play the role of censor by engaging in a weighing of an expression’s value or relative social costs and benefits. Speech cannot be criminalized merely because others see no value in it. Nonetheless, neither the First Amendment nor Article I, Paragraph 6 of our State Constitution prohibits the State from criminalizing certain limited categories of speech, such as speech that is integral to criminal conduct, speech that physically threatens or terrorizes another, or speech that is intended to incite imminent unlawful conduct. The First Amendment also does not bar states from enacting laws that punish expressive activity when substantial privacy interests are being invaded in an essentially intolerable manner. (4. N.J.S.A. 2C:33-4 provides: “[A] person commits a petty disorderly persons offense if, with purpose to harass another, he: . . . (c) Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.” In cases based on pure expressive activity, the amorphous terms “alarming conduct” and “acts with purpose to alarm or seriously annoy” must be defined in more concrete terms consonant with the dictates of the free-speech clauses of our Federal and State Constitutions. Narrowly reading the terms alarm and annoy will save the statute from constitutional infirmity. Therefore, for constitutional reasons, the Court will construe the terms “any other course of alarming conduct” and “acts with purpose to alarm or seriously annoy” as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy. That standard applies only in those cases where the alleged harassing conduct is based on pure expressive activity.
5. The prosecution in this case targeted purely expressive activity and therefore the Court applies the heightened standard of subsection (c) set forth above. Neither the municipal court nor Law Division judge who sat in this case had the benefit of the standard developed in this opinion. They applied the statute as written. Although in other circumstances a remand might be appropriate, the Court sees no point here because even the most indulgent view of the record favoring the State would not support a harassment conviction under N.J.S.A. 2C: 33-4(c).  


Monday, December 18, 2017

No Good faith exception to police mistake in search warrant State v. Boone

No Good faith exception to police mistake in search warrant
 State v. Boone (A-3-16) (077757)
  Decided December 18, 2017

In this appeal, the Court considers whether a warrant application that did not include evidence as to why a specific apartment unit should be searched fell short of establishing probable cause for the search of that apartment.
Over the course of two months during the summer of 2012, the Bergen County Prosecutor’s Office Narcotics Task Force set up surveillance of defendant Akeem Boone for suspected distribution of crack cocaine, marijuana, and heroin. On August 27, 2012, police observed Boone drive to a parking lot in River Edge and retrieve a duffel bag from an unoccupied vehicle. He later drove to an apartment building, 211 Johnson Avenue, where police suspected he lived. Boone did not bring the bag into the thirty-unit building. An hour later, Boone went to retrieve the bag but, noticing the vehicle from which police were monitoring him, returned the bag to the car and drove away. Several times that day, police saw him drive to and from the Johnson Avenue apartment complex. That same evening, police followed Boone from Johnson Avenue to Main Street in Hackensack, where they observed what appeared to be a hand-to-hand drug transaction. Boone then drove back to the apartment complex.
On August 29, 2012, Detective Dennis Conway of the Bergen County Prosecutor’s Office applied for a warrant to search Boone, his car, and Unit 4A of 211 Johnson Avenue—identified as Boone’s apartment—among other things. The detective did not note that the building was a thirty-unit apartment building, nor did he provide any details about Unit 4A or how police knew Boone was a tenant in that unit. Although the warrant application frequently mentions 211 Johnson Avenue, it never discusses the inside of the apartment building, and it fails to mention Unit 4A other than in passing. However, the detective concluded that “my investigation reveals that Boone is distributing Controlled Dangerous Substances, 211 Johnson Avenue, Apartment 4A, Hackensack.”
The trial court subsequently issued a warrant to search Boone, his residence, and his car. Police executed the search warrant on September 7, 2012, and found between one-half and five ounces of cocaine and an illegal handgun in Unit 4A. They then arrested Boone. In February 2013, a grand jury charged Boone with seven counts of drug, weapons, and child endangerment offenses.
Boone sought to suppress the evidence found in Unit 4A on the ground that the search warrant lacked a factual basis to establish probable cause to search his apartment. The trial court denied the motion. Although the court acknowledged that police offered no support to justify a search of Unit 4A, it noted that Detective Conway provided extensive details of the police surveillance of Boone. The court found that Boone’s activity, coupled with the detective’s investigative experience and Boone’s criminal history, established probable cause to search Unit 4A. After the denial of his motion to suppress, Boone pled guilty to two second-degree drug offenses.
The Appellate Division affirmed the denial of the motion to suppress in an unpublished opinion. The panel held that the totality of the circumstances presented in the affidavit justified a finding of probable cause for the issuance of the search warrant. The panel found that the issuing judge had “ample grounds to anticipate” that narcotics would be in Boone’s apartment “given the furtive conduct of defendant the surveilling officers had observed and his two recent apparent hand-to-hand drug transactions at another location.”
The Court granted certification. 227 N.J. 356 (2016).
HELD: Because the warrant affidavit failed to provide specific information as to why defendant’s apartment and not other units should be searched, the warrant application was deficient. 2

1. The search-and-seizure provision in Article I, Paragraph 7 of New Jersey’s Constitution affords a higher level of protection for citizens than the Fourth Amendment of the United States Constitution. Searches without a warrant are presumed unreasonable unless they fall within an exception to the warrant requirement.   
2. The application for a warrant must satisfy the issuing authority that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched. The requirement for a search warrant is not a mere formality, and the showing necessary to secure one should be based not merely on belief or suspicion, but on underlying facts or circumstances which would warrant a prudent man in believing that the law was being violated.  
3. Reviewing courts accord substantial deference to the discretionary determination resulting in the issuance of the search warrant. Courts consider the totality of the circumstances and should sustain the validity of a search only if the finding of probable cause relies on adequate facts. The probable cause determination must be based on the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously. The analysis into sufficient probable cause to issue a warrant for an arrest or for a search involves two separate inquiries.
4. In State v. Keyes, the Court held that a confidential informant’s tip could serve as the basis for issuing a warrant provided that there is “substantial evidence in the record to support the informant’s statements.” 184 N.J. 541, 555 (2005). Although police could not observe the informant enter the home in that case, under the totality of the circumstances, there was a sufficient basis to issue the warrant based on the controlled drug buy. Id. at 559-60. The Court credited the informant’s past contributions to drug sale arrests, his description of the defendant, the controlled buy, and the fact that known drug users were entering and exiting the area as contributing to the totality of the circumstances. Id. at 558-60. Because police had that corroborating evidence and the informant’s tip linking the defendant to the apartment, the Court held that the warrant had a sufficient basis.
5. Here, no independent documentary evidence, such as a voting record, utility bill, or lease, was offered to corroborate Boone’s address. No neighbor, informant, or controlled transaction demonstrated that Boone lived in Unit 4A. Police failed to provide the issuing judge a basis of knowledge from which to conclude that contraband would be found in the particular apartment. That is true regardless of whether the warrant application provided a basis for Boone’s arrest because, as noted, probable cause to arrest a suspect is not synonymous with probable cause to search that suspect’s apartment. Police lacked the facts important in Keyes, namely a reliable informant who could identify where Boone lived. Police here listed Boone’s apartment unit as the targeted property in a conclusory manner, without any evidential basis as to how they knew that specific unit in a thirty-unit building contained contraband. The Court recognizes that the error here was likely an innocent oversight by the police. However, because New Jersey does not recognize an officer’s good faith alone as an exception to the warrant requirement, the error demands reversal.

6. Because the State’s warrant application did not include specific evidence as to why a judge should issue a search warrant for a specific apartment unit, the search warrant issued on the basis of that application was invalid. And, because the police search of Unit 4A was not supported by a valid warrant or justified by an exception to the warrant requirement, the search was unconstitutional. Therefore, the Court suppresses all evidence seized from Boone’s apartment. The Court emphasizes that judges issuing search warrants must scrutinize the warrant application and tie specific evidence to the persons, property, or items the State seeks to search. Without that specificity and connection to the facts, the application must fail.

Sunday, December 10, 2017

STATE OF NEW JERSEY VS. DONOVAN WHITE STATE OF NEW JERSEY VS. LARRY BOSTIC A-4778-16T6

STATE OF NEW JERSEY VS. DONOVAN WHITE 
STATE OF NEW JERSEY VS. LARRY BOSTIC 
A-4778-16T6 AND A-5364-16T6 (CONSOLIDATED) 
In these two appeals from orders of detention pursuant to the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26 (the CJRA), the Law Division revoked defendants' pretrial release for violations of conditions. 
In White, although defendant received notice that the hearing on the State's motion to revoke would occur on a different date, the judge refused to grant a short extension of the hearing when defendant appeared in court so defendant could call a witness and produce other evidence. The panel concluded the judge mistakenly exercised his discretion and reversal was required because the denial of the adjournment was prejudicial to defendant's ability to rebut the State's proffered evidence of a violation. 
In Bostic, defendant was immediately arrested when he reported for the first time to Pretrial Services. The State alleged defendant violated conditions of his release, specifically leaving his home and entering a "victim exclusion zone" for one minute. The Law Division judge revoked defendant's release. 

The panel reversed, concluding there was no authority for defendant's immediate arrest, because he committed no new offense and the court had issued no warrant for his arrest based upon alleged violations of conditions. The panel also concluded the State failed to prove by preponderance of the evidence that defendant knew the parameters of the victim "exclusion zones," or that his failure to remain in his home, when specifically ordered to report to Pretrial Services, was a violation of his conditions of release. 

Sunday, December 03, 2017

STATE VS. LEON FAISON A-3629-15T4

STATE OF NEW JERSEY VS. LEON FAISON 
A-3629-15T4 
In this case, we reverse defendant's conviction for operating a motor vehicle while his license was suspended for a second or subsequent driving while intoxicated (DWI) conviction, N.J.S.A. 2C:40-26(b). While defendant's license was suspended for a second DWI conviction when the police stopped him, before trial he successfully petitioned for post-conviction relief (PCR). The order granting PCR vacated his prior DWI convictions and remanded both matters to the municipal court for new trials. On remand, the municipal court dismissed one DWI charge, and defendant pled guilty to the other. 

As a result of defendant's PCR and remand proceedings, at the time of his trial for violating N.J.S.A. 2C:40-26(b), he had only one prior DWI conviction. Accordingly, the State could not prove an element of the crime charged — a second DWI conviction — a prerequisite to the mandatory 180-day incarceration period imposed by N.J.S.A. 2C:40-26(b) and (c). 

STATE OF NEW JERSEY VS. ROLANDO TERRELL A-0492-11T4/


 STATE OF NEW JERSEY VS. ROLANDO TERRELL 
A-0492-11T4/A-1593-12T4(NEWLY PUBLISHED OPINION FOR 11/29/17) 
Defendant appeals from his convictions and sentence asserting several arguments, which challenge evidentiary determinations by the trial judge. Specifically, defendant characterizes the errors as: (1) the exclusion of defense expert testimony evaluating the reliability of voice identification evidence and discussing factors affecting the reliability of what was termed "earwitness" identification; (2) the admission of what he characterizes as the State's prejudicial, irrelevant gang expert evidence; and (3) the admission of the State's misleading expert testimony pertaining to the chemicals Toluene and D5 found at the scene. 

The court affirmed the evidentiary rulings, noting the judge fully determined the limits of admissibility of all evidence. When deeming certain subjects inadmissible, the trial judge's detailed findings including: the expert was found not to be qualified to address the area; the testimony risked misleading the jury; the concepts related to matters of common sense; and the opinion tended to tread on the jury's credibility determinations.