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Wednesday, July 19, 2017

STATE OF NEW JERSEY V. RORY EDWARD TRINGALI DOCKET NO. A-1262-15T1

STATE OF NEW JERSEY V. RORY EDWARD TRINGALI DOCKET NO. A-1262-15T1
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The State alleged that, acting in Florida, defendant paid an accomplice to launch spam attacks on a website that was integral to a New Jersey internet-based business, for the purpose of harming the business owner. The Appellate Division reversed an order dismissing the indictment charging defendant with the offenses of disrupting or impairing computer services, N.J.S.A. 2C:20-25(b), and impersonating another for the purpose of obtaining a benefit or depriving another of a benefit, N.J.S.A. 2C:21-17(a)(1). As to both offenses, the harmful result to the victim is an "element" of the offense, within the meaning of the territorial jurisdiction statute, N.J.S.A. 2C:1-3(a)(1) and -3(g). Because the prosecutor produced some evidence that the New Jersey victims suffered harm in this State which was an element of each computer crime statute, New Jersey has territorial jurisdiction to prosecute defendant for those offenses. Therefore, the trial court erred in dismissing those counts of the indictment for lack of territorial jurisdiction. 

STATE OF NEW JERSEY VS. GREGORY P. COBBS A-4479-14T2

STATE OF NEW JERSEY VS. GREGORY P. COBBS
          A-4479-14T2
This appeal presented the question: when does the five-year statute of limitations begin to run against a prosecution for intentional failure to pay New Jersey taxes under N.J.S.A. 54:52-9(a). The offense has two elements: (1) the failure "to pay or turn over when due any tax, fee, penalty or interest or any part thereof required to be paid"; and (2) doing so with "the intent to evade, avoid or otherwise not make timely payment or deposit of any tax, fee, penalty or interest or any part thereof."
Defendant acknowledged he owed almost $200,000 in 2007 gross income taxes, according to his late tax return, which he filed on July 8, 2008. He was indicted for intentional failure to pay on July 10, 2013. The State argued the crime is a
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continuing one under N.J.S.A. 2C:1-6(c), and the limitations period does not begin running until a defendant's last affirmative act of evasion or avoidance in this case, when defendant last falsely promised to pay in 2010. The court disagreed, holding the time period begins once a defendant fails to pay taxes when due and owing, and does so with the requisite intent. This can occur on the day taxes are first due, or at a later date only if the necessary state of mind first emerges then. The indictment alleged these two elements were satisfied when defendant filed his return. Therefore, the court reversed the conviction because the indictment was returned more than five years after the crime was committed. 

STATE OF NEW JERSEY IN THE INTEREST OF M.P. A-0303-16T2

STATE OF NEW JERSEY IN THE INTEREST OF M.P.
          A-0303-16T2
In this juvenile delinquency prosecution, the Family Part sua sponte transferred venue to another vicinage without notice to the juvenile defendant or the State. When the State objected, the judge held a hearing and stated the transfer was occasioned by receipt of a confidential report filed by an judiciary employee pursuant to Judiciary Employee Policy #5-15, "Reporting Involvement in Litigation," (effective June 1, 2016) (the Policy). In a subsequently filed brief statement of reasons, without identifying the employee or his or her relationship to the litigation, the judge concluded that given the employee's access to the Family Automated Case Tracking System (FACTS), location in the courthouse and interaction with the public, the Policy required the transfer of venue.
The court granted the juvenile's motion for leave to appeal, which the State supported, and reversed. Our Court Rules presume venue is laid in the county of the juvenile's domicile, a presumption further supported by provisions of the Code of Juvenile Justice. Additionally, the Crime Victim's Bill of Rights require the court to consider the inconvenience to the victim occasioned by the transfer of venue.
While the Family Part Presiding Judge may order the transfer of venue for good cause over the objections of the juvenile and the State, the court must provide notice of its
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intention and an opportunity to object beforehand. Additionally, the court's power must be exercised in service to the goals of the Policy, i.e., "to maintain [the Judiciary's] high degree of integrity and to avoid any actual, potential or appearance of partiality or conflict of interest in the adjudication or handling of all cases," and the court must consider whether a less drastic measure, such as "insulating the [court employee] from the matter," would accomplish these goals

STATE OF NEW JERSEY VS. DOMINIQUE T. MOORE A-3669-16T7


STATE OF NEW JERSEY VS. DOMINIQUE T. MOORE
          A-3669-16T7
In this appeal, we addressed whether the Monmouth County Prosecutor's Office must produce a completed Preliminary Law Enforcement Incident Report (PLEIR) when seeking pretrial detention of a defendant under the Bail Reform Act (Act), N.J.S.A. 2A:162-15 to -26. Consonant with our Supreme Court's decision in State v. Robinson, ___ N.J. ___ (2017), and for the reasons set forth herein, we conclude the production of a PLEIR is not mandatory under the Act, Rule 3:4-2(c)(1), or the Office of the Attorney General, Directive Establishing Interim Policies, Practices, and Procedures to Implement Criminal Justice Reform Pursuant to P.L. 2014, c. 31 (Oct. 11, 2016). 

State v. Mark Dunbar (A-94-15


State v. Mark Dunbar (A-94-15; 077839)
          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.

State v. Thomas L. Scott (A-86-15


State v. Thomas L. Scott (A-86-15; 077434)
          The evidence proffered by the State goes far afield of a
          proper bias inquiry.  The evidence is inadmissible under
          the dictates of New Jersey Rules of Evidence 403 and
          608, which govern admissibility of prior bad acts and
          character evidence for truthfulness.  That error
          prevented defendant from fully developing his defense at
          trial and deprived the jury of key witness testimony.
          Exclusion of testimony central to a defendant’s claim or
          defense, if otherwise admissible, cannot be held to be
          harmless error.

State v. Anthony K. Cole (A-66-15

State v. Anthony K. Cole (A-66-15; 076255)
          The trial court properly exercised its broad
          discretion when it applied N.J.R.E. 401 and 403 to the
          contested evidence and admitted the video recordings
in their entirety. The lack of a limiting instruction
          and the prosecutor’s comment on the evidence did not
          constitute plain error.

State v. Michael Ross II (A-79-15


State v. Michael Ross II (A-79-15; 077458)
          Although some of the trial court’s inquiries were
          unnecessary and over-reaching, the trial judge’s conduct
          did not rise to the level of plain error.  Upon review
          of the record, the Court is satisfied that the trial
          court’s questions did not deprive defendant of a fair
          trial.

State v. S.S. (A-84-15


State v. S.S. (A-84-15; 077486)
          After a careful reappraisal of Diaz-Bridges, the Court
          now holds that the non-deferential standard articulated
          in that case is at odds with traditional principles
          limiting appellate review.  An appellate court
          ordinarily should defer to a trial court’s factual
          findings, even when those findings are based solely on
          its review of a video recording.  Deference, however, is
          not required when the trial court’s factual findings are
          clearly mistaken.  Here, sufficient credible evidence in
          the record supports the factual finding that defendant
          invoked his right to silence during the interrogation.

Monday, July 03, 2017

Terry Stop and frisk explained STATE OF NEW JERSEY,

Terry Stop and frisk explained 
STATE OF NEW JERSEY, v.

JAMES T. PRITCHETT,

Defendant-Appellant.
________________________________________________________________
April 6, 2017
Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 14-03-0144.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Rastelli, Assistant Prosecutor, of counsel and on the brief).
  NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0

The opinion of the court was delivered by
ESPINOSA, J.A.D.
Defendant entered a guilty plea to one count of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), after his motion to suppress evidence seized from his person was denied. We reverse the denial of defendant's motion and his conviction. 
Two witnesses testified at the suppression hearing, Chief John Pelura and Sergeant Melvin Vanaman of the Salem Police Department. We summarize their testimony. 
At approximately 6:00 p.m. on December 12, 2013, Pelura was driving home from work in an unmarked vehicle. He explained why his attention was drawn to the car defendant was driving:
[I]t was driving along the shoulder of the road, normally where cars would park. There were no cars parked there, however. He was traveling next to the curb line, as if he was going to park, and he shut his lights out about mid-block, but then continued driving southbound past two or three house[s], and then finally came to a stop in front of 1 Johnson Street.

Pelura estimated that the car traveled along the shoulder for about 150 to 200 feet and that its lights were turned off as it passed two houses. Pelura had been "involved with the investigation of multiple search warrants for narcotics in that neighborhood" as well as "several homicide investigations in that neighborhood."
Pelura looked in his rear view mirror to see if the driver alighted from the vehicle. The area across the street from the vehicle was frequently under surveillance and Pelura knew "people will park in the Avenues, and then, either walk across the street to make narcotics transactions; or, people will come from across the street into the Avenues and make deliveries." The fact that neither defendant nor the passenger left the vehicle piqued his interest. 
Pelura drove around the block. He testified that after he circled the block a second time, 
[defendant] was getting out of the driver's seat; and then, when he saw me, he got back into the car, and then, shut the door, but not so much to close it completely, just kind of so it was cracked open.

Pelura then drove around the block and parked in an alleyway where he could observe defendant's movements. He saw defendant walk purposefully to an address where "numerous narcotic search warrants" had been executed. Defendant emerged approximately two to three minutes later and walked back toward his car.
Pelura identified two facts as the basis for his suspicions. First, defendant went into a house with a history of narcotics search warrants and drug activity. Second, defendant parked "essentially, in the middle of nowhere and then walk[ed] across the street" rather than in a location more convenient to his destination.
Pelura approached defendant as he walked back to his vehicle, identified himself as a police officer and told him he was conducting a narcotics investigation. There was, however, no active investigation being conducted that day. He described defendant's reaction as startled and nervous. Pelura conducted a Terry1 patdown of defendant. He stated he did not manipulate or go into any of defendant's pockets; he "was simply looking for a weapon." No weapons were recovered. 
Pelura then questioned defendant about where he was coming from. Defendant first stated he came from the liquor store but, after Pelura challenged him on that, defendant said he "went across the street to see [his] boy." Defendant was unable to provide a name for the person he went to see.
Pelura testified that Vanaman arrived at this time. Pelura then spoke to the passenger, observed an open container of alcohol, and turned around to see Vanaman handcuffing defendant. Pelura "secured" the passenger for "loitering, with intent to commit a CDS offense."
Vanaman testified he responded to assist Pelura "who reported that he was out with a suspicious male." When he arrived at the scene, defendant was "acting very nervously" and "seemed to be giving conflicting statements" regarding his reasons for being in the area. Pelura asked Vanaman to remain with defendant while he spoke to the passenger.
Vanaman asked defendant for identification, which he produced. Vanaman ran a warrants check on defendant, which was negative for active warrants. Vanaman testified that defendant's actions caused him to conduct a patdown of defendant:
[Defendant] continued to appear to become increasingly nervous. He was – he would turn his left side of his body away from me, and he kept touching his pockets. He would like run his hands from his sweatshirt to his pants, to checking his front and back pockets. Just like patting them, as if he was looking for something.

Then he – when he touched the front of his sweatshirt, I noticed that his facial expression changed, and he reached for his pockets, tried to put his hands in his pockets; and I asked him to not do that. I was standing there, he – when I went and reached for my lapel mike, to answer the dispatch, he again, kind of turned his body away from me, and, again, tried to reach his hand into that pocket, his left front pocket of his sweatshirt.

Vanaman testified that he grabbed defendant and "stopped his . . . hands from going into his pockets." Vanaman asked defendant, "What do you have in that pocket?" Defendant did not answer; "he was just standing there; he didn't . . . try and twist or resist at that moment." Vanaman then conducted a patdown for weapons. He ran his hands along defendant's pockets on the outside of his clothing. In the left hand sweatshirt pocket that had been the focus of defendant's attention, Vanaman "felt a hard, almost golf ball size object, and . . . heard a slight crinkle of what sounds like some sort of plastic." He "believed the object to be some sort of CDS [controlled dangerous substance] material." Vanaman reached into defendant's pocket, retrieved the object he suspected to be heroin and placed defendant under arrest.
Vanaman testified he conducted the patdown because he "was nervous and suspicious of [defendant's] actions, that he may have some sort of weapon or something on him that could be dangerous." However, he also stated that defendant did not act aggressively toward him in any way.
In a written opinion, the trial judge found the facts supported a particularized and reasonable suspicion that justified Pelura's action in making a Terry stop. The judge also found Pelura's Terry frisk of defendant was unwarranted because the facts failed to support a justifiable suspicion that defendant was armed and dangerous and posed an immediate threat to his safety. The trial judge found this unlawful intrusion "of no import" because Pelura's frisk of defendant did not result in the recovery of any contraband.
The trial judge found Vanaman's frisk of defendant was supported by particularized and reasonable observations:
He did not know that Chief Pelura had already frisked [defendant]. [Defendant] was becoming increasingly nervous. He kept turning his left side away. He repeatedly tried to put his hands in his sweatshirt pockets after being instructed to stop. Sergeant Vanaman knew that Chief Pelura was conducting a narcotics investigation. These facts support his reasonable belief that [defendant] was armed and posed an immediate threat to his and Chief Pelura's safety.

The trial judge further found that the heroin retrieved from defendant's pocket was lawfully seized pursuant to the plain feel doctrine.
Sergeant Vanaman's belief that what he felt in [defendant's] left sweatshirt pocket is also supported by the credible evidence. He is an experienced [sic] with many narcotics related arrests. He felt a hard, "almost golf ball sized object" and heard a "crinkle like some plastic." His testimony that it was immediately apparent to him that this was a controlled dangerous substance is credible. At that point, [defendant's] shoulders dropped and he went limp. That together with his observations created probable cause to believe the object was a controlled dangerous substance under the Gates[2] totality of the circumstances test.

Accordingly, defendant's motion was denied. In his appeal, defendant presents the following argument:
THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED. THE STOP OF DEFENDANT WAS IMPROPER AT ITS INCEPTION, BECAUSE THERE WAS NO REASONABLE SUSPICION THAT AN OFFENSE HAD BEEN COMMITTED, AND THEN THE STOP WAS CONTINUED LONGER THAN IS CONSTITUTIONALLY PERMISSIBLE. MOREOVER, THERE WAS NO JUSTIFICATION TO SUBJECT DEFENDANT TO A SECOND FRISK; NOR WAS THERE PROBABLE CAUSE VIA "PLAIN FEEL" TO JUSTIFY SEIZING THE CONTRABAND THAT WAS DISCOVERED.

When a motion judge has denied a suppression motion, our review of the motion judge's factual findings "is highly deferential."State v. Gonzales227 N.J. 77, 101 (2016). Because the motion judge has the "opportunity to hear and see the witnesses and to have the 'feel' of the case," ibid. (quoting State v. Johnson42 N.J. 146, 161 (1964)), the motion judge's factual findings will be upheld so long as sufficient credible evidence in the record supports those findings, State v. Elders192 N.J. 224, 243-44 (2007). We review issues of law de novo.  State v. Watts223 N.J. 503, 516 (2015).
An encounter that begins with a valid arrest or investigative stop may lead to a seizure that will be suppressed because the officer has unreasonably expanded the permissible scope of an otherwise valid search.  See, e.g.State v. Privott203 N.J. 16, 28-32 (2010) (concluding the officer unreasonably expanded the permissible scope of the search when he lifted defendant's shirt after conducting a proper investigative stop and protective patdown). A Terry stop, sometimes called an investigatory stop or investigative detention, is "more intrusive than a field inquiry," State v. Rodriguez172 N.J. 117, 126 (2002), and "is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing," id. at 127 (quoting State v. Davis104 N.J. 490, 504 (1986). Such particularized suspicion requires "'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." Id. at 126-27 (quoting Terrysupra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906).
We "consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter."  State v. Tucker136 N.J. 158, 166 (1994) (quoting Florida v. Bostick501 U.S. 429, 439, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389, 402 (1991)); see also State v. Sirianni347 N.J. Super. 382, 388-89 (App. Div.) (stating "[a]n inquiry may be converted into an investigative detention if, given the totality of the circumstances, a reasonable person were to believe he was not free to leave"), certif. denied172 N.J. 178 (2002). Circumstances that merit consideration include: "the seriousness of the criminal activity under investigation, the degree of police intrusion, and the extent of the citizen's consent, if any, to that intrusion."  Siriannisupra, 347 N.J. Super. at 389 (citation omitted). 
The conduct of the police officer has significant weight in determining whether a field inquiry has become an investigative stop. In Rodriguezsupra, 172 N.J. at 129, the officer asked whether the defendant and his companion "had anything on them that they shouldn't have." The Court noted "the tenor of the police questions" contributed to its finding that the encounter had progressed to an investigative detention.  Ibid. The Court cited other cases in which a field inquiry was converted into an investigative detention through the nature of the questions asked, e.g.State v. Contreras326 N.J. Super. 528, 534, 540 (App. Div. 1999) (defendant was asked "if he had anything of that type [drugs or weapons] on his person"); State ex rel. J.G.320 N.J. Super. 21, 30-31 (App. Div. 1999) (defendant was asked whether there was "anything on him that [he] shouldn't have"). The "critical inquiry" is whether the policeman has "conducted himself in a manner consistent with what would be viewed as a nonoffensive contact if it occurred between two ordinary citizens." Davissupra, 104 N.J. at 497 n. 6. (quoting W.R. LaFave, 3 Search and Seizure, § 9.2 at 53 (1978)).
"[A]uthoritative questions that presuppose criminal activity or are otherwise indicative of criminal suspicion, thus making the suspect aware he is the focus of a particularized investigation, may be considered as part of the totality of circumstances in determining whether a field inquiry has escalated into an investigatory stop."  Siriannisupra, 347 N.J. Super. at 389. On the other hand, if an officer puts his questions "in a conversational manner, if he did not make demands or issue orders, and if his questions were not overbearing or harassing in nature," his manner would not result in a seizure of the person.  Davissupra, 104 N.J. at 497 n.6 (citing W.R. LaFave, 3 Search and Seizure, § 9.2 at 53-54).
Pelura's interaction with defendant was, almost from its outset, an investigative stop. Upon first approaching defendant, Pelura announced he was conducting a narcotics investigation, although there was no active investigation at that time. Pelura questioned defendant about his movements and challenged defendant's response because it did not conform to his observations. The trial judge found this level of intrusion justified by facts that supported a reasonable suspicion that defendant was engaged in criminal activity but found the patdown that followed unjustified. 
In our view, the justification for an investigative detention was weak. We agree with the motion judge there was no evidence to support a reasonable belief that a protective Terry frisk was warranted, but we disagree with the trial judge's conclusion that, because Pelura's frisk of defendant did not result in the recovery of any contraband, the unlawful intrusion that followed was "of no import." We cannot agree that an unlawful intrusion has no consequence simply because it did not lead to the seizure of evidence. 
Here, the police intrusion did not end after the unproductive patdown. Although Pelura had obtained no further incriminating evidence as a result of questioning defendant and defendant manifested no suspicious behavior other than appearing nervous, the detention continued. Vanaman testified that when he arrived, Pelura instructed him to remain with defendant. If there had been any question about defendant's freedom to leave, that was certainly dispelled upon Vanaman's arrival and Pelura's instructions.
Vanaman questioned defendant further, asked for identification, which defendant produced, and conducted a warrant check, which revealed no active warrants. 
Both officers cited defendant's nervous behavior as giving them cause for concern. But both officers also testified that defendant did not act aggressively toward them in any way. Vanaman stated it was defendant's continued movements toward his pocket that elevated his concern to the point where he deemed a patdown for weapons necessary.
The motion judge found Vanaman had a reasonable belief defendant was armed and posed an immediate threat to the safety of the officers because: he did not know Pelura had already frisked defendant; defendant was becoming increasingly nervous, repeatedly trying to put his hand in his pocket; and he "knew" Pelura "was conducting a narcotics investigation."
We are constrained to note the finding that Vanaman "knew" a narcotics investigation was under way is contradicted by the record. Vanaman testified he responded to the scene because Pelura was with a suspicious male and that when he arrived, Pelura did not describe any investigation to him. The only testimony in this regard came from Pelura, who testified there was no active investigation at that time. There was also no evidence that defendant was known to engage in narcotics activity.
We note that, before conducting a patdown, Vanaman grabbed defendant's arm, preventing him from reaching the pocket in question and presumably thwarting the possibility defendant was reaching for a weapon. Still, we will accept the motion judge's finding that Vanaman believed defendant was armed and dangerous, giving deference to the judge's ability to assess his credibility.
The initial frisk described by Vanaman -- running his hands along defendant's pockets on the outside of his clothing --complied with the scope of a protective patdown authorized by Terry. No weapons were recovered and Vanaman did not suspect the "hard, almost golf ball size object" he felt in defendant's pocket was a weapon. The motion judge found his retrieval of the heroin from defendant's pocket was permissible under the "plain feel" exception to the warrant requirement. We disagree.
"A threshold requirement for the application of the plain feel exception is that the character of the contraband be 'immediately apparent.'"  State v. Evans, ___ N.J. Super. ___, ____ (App. Div. 2017) (slip op. at 18-19) (quoting Minnesota v. Dickerson508 U.S. 366, 375, 113 S. Ct. 2130, 2137, 124 L. Ed.2d 334, 345 (1993)). There is a critical difference between the existence of probable cause to believe an object is contraband, as the court found here, and evidence that the character of the detected object as contraband was "immediately apparent."  See id. at ___ (slip op. at 19). In Dickerson, the Supreme Court found the officer's manipulation of a suspected object removed the seizure from the application of the plain feel doctrine because the officer exceeded the permissible scope of a Terry stop when he manipulated the bulge after concluding it was not a weapon: 
[T]he officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to "the sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby." It therefore amounted to the sort of evidentiary search that Terryexpressly refused to authorize, and that we have condemned in subsequent cases.

[508 U.S. at 378, 113 S. Ct. at 2138-39, 124 L. Ed. 2d at 347-48 (alterations in original) (citations omitted).]

When Vanaman touched the hard golf ball-like object and heard the crinkle of plastic, he "believed the object to be some sort of CDS material" and had probable cause for that belief. However, it was only by removing the object in a warrantless search that the object could be identified as a controlled dangerous substance. Like the officer in Dickerson, he did so after it was clear defendant did not have a weapon in his pocket. Because the search exceeded the permissible scope of a Terry patdown, it also "amounted to the sort of evidentiary search" that was condemned as unauthorized by Terry.  Id. at 378, 113 S. Ct. at 2139, 24 L. Ed. 2d at 347. The warrantless seizure of the heroin from defendant's pocket cannot, therefore, be justified through an application of the plain feel doctrine.
Reversed.

certify

1  Terry v. Ohio392 U.S. 188 S. Ct. 186820 L. Ed.2d 889 (1968).

2  Illinois v. Gates462 U.S. 213103 S. Ct. 231776 L. Ed.2d 528 (1983).


Sunday, July 02, 2017

State v. Anthony K. Cole (A-66-15)

 State v. Anthony K. Cole (A-66-15) (076255) 
  -- Decided June 27, 2017 
PATTERSON, J., writing for the Court. 
In this appeal, the Court reviews the trial court’s denial of defendant’s motion to bar the admission into evidence of three segments of video, recorded during breaks from questioning at police headquarters, in which defendant appeared alone in the interrogation room. 
On the evening of September 7, 2009, David Donatelli was in Spring Lake Park, preparing for South Plainfield’s annual Labor Day fireworks display. As he stood looking up to examine a light stanchion, Donatelli was slashed. The laceration on the side of his neck exposed his carotid artery and jugular vein. 
A police officer found two matching black-and-gray gloves. Blood identified by DNA analysis as Donatelli’s was found on the outside of the glove. State Police forensic scientists then swabbed the interior of both gloves and detected skin cells that matched defendant’s DNA profile in the database. Officers arrested defendant. 
Police officers interrogated defendant in two sequential conversations, both video-recorded. Advised that the officers had forensic evidence linking him to the crime, defendant maintained his innocence, provided an alibi, and asked to be released. When the officers were in the room, defendant was gregarious and engaged. When briefly left alone during three breaks from the questioning, however, defendant adopted a starkly different demeanor; he muttered to himself, mouthed obscenities toward the location where the officers had been sitting and the video camera, and placed his hand inside his pants. 
Defendant was tried before a jury over six days. On the second day of trial, defense counsel stated that the portions of the video recordings in which defendant appeared alone were unduly prejudicial under N.J.R.E. 403. The trial court ruled that the contested sections were relevant because they reflected on defendant’s demeanor and the accuracy of his statements. The court admitted the video recordings in their entirety. It invited defense counsel to submit a proposed jury instruction addressing the limited purpose for which the jury should consider the segments of the recordings in which defendant appeared alone. 
During the State’s case, the contested video recordings were played for the jury. The trial court reiterated its offer to give the jury a cautionary instruction. The record does not indicate that defense counsel proposed such an instruction. The prosecutor specifically addressed defendant’s conduct when he was alone and suggested that defendant’s “manipulation” of his presentation to police signaled his guilt. Defendant did not object. 
In its jury charge, the trial court instructed the jurors that they were the sole and exclusive judges of the evidence, including the credibility of witnesses, but did not specifically address the portions of the video recordings in which defendant sat alone in the interrogation room. The jury convicted defendant of attempted murder, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, and hindering apprehension. In a separate proceeding, the jury convicted defendant of the remaining offense, certain persons not to have a weapon. 
An Appellate Division panel reversed defendant’s conviction and remanded for a new trial. The panel deemed the contested segments too equivocal to be admitted as consciousness-of-guilt evidence, particularly without a limiting instruction. The Court granted the State’s petition for certification. 224 N.J. 527 (2016). 
HELD: The trial court properly exercised its broad discretion when it applied N.J.R.E. 401 and 403 to the contested evidence and admitted the video recordings in their entirety. The lack of a limiting instruction and the prosecutor’s comment on the evidence did not constitute plain error.

1. N.J.R.E. 401 defines “[r]elevant evidence” as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” Once a logical relevancy can be found to bridge the evidence offered and a consequential issue in the case, the evidence is admissible, unless exclusion is warranted under a specific evidence rule. N.J.R.E. 403 mandates the exclusion of evidence that is otherwise admissible “if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury.” To determine the admissibility of evidence under N.J.R.E. 401 and 403, the trial court conducts a fact-specific evaluation of the evidence in the setting of the individual case. On appellate review, considerable latitude is afforded to the court’s ruling, which is reversed only if it constitutes an abuse of discretion. (pp. 17-21) 
2. In this case, the conduct depicted in the video recordings was germane to the jury’s assessment of defendant’s credibility in his statement to police and therefore relevant to its determination of pivotal issues. The portions of the two video recordings in which defendant was alone in the interrogation room met N.J.R.E. 401’s standard of relevancy. The segments at issue were potentially prejudicial to defendant; that evidence, however, was not prejudicial to the point at which the risk of prejudice substantially outweighed the probative value of the evidence, as N.J.R.E. 403 requires for the evidence to be excluded. The trial court did not abuse its discretion when it admitted into evidence the video recordings, including the portions in which defendant was alone. (pp. 21-27) 
3. The Appellate Division panel reversed defendant’s conviction based not on a relevance analysis, but on its conclusion that the video segments were inadmissible as evidence of consciousness of guilt. The three video-recorded segments were not offered or admitted as consciousness-of-guilt evidence but on the ground that they were relevant to the jury’s evaluation of the credibility of defendant’s statement. Accordingly, the Court does not determine whether the evidence in question was admissible as consciousness-of-guilt evidence. (pp. 27-28) 
4. The Appellate Division noted that the trial court did not give a limiting instruction. The trial court twice offered to give a limiting instruction. Defense counsel did not submit a proposed instruction and the trial court did not sua sponte charge the jury regarding the video recordings. Given the brief duration of the video-recorded excerpts in a six-day trial, it is unclear whether a limiting instruction would have clarified the limited purpose of the videotaped segments or overemphasized the evidence. Moreover, the State presented overwhelming evidence of defendant’s guilt, including DNA evidence linking defendant to a glove on which the victim’s blood was found shortly after the crime, as well as testimony by defendant’s mother and friends that substantially undermined his account of his activities during the critical time period. The trial court’s decision not to charge the jury on this issue was not “clearly capable of producing an unjust result,” and was not plain error. R. 2:10-2. (pp. 28-31) 
5. The prosecutor’s reference to defendant’s demeanor as proof of his guilt was beyond the scope of fair comment. The prosecutor was free to discuss the video-recorded segments in which defendant was alone but should have constrained any such discussion to the question of credibility. The Court cautions prosecutors that when evidence is admitted for a limited purpose, comments in summation that exceed the bounds of that purpose must be avoided. However, the comment was not clearly capable of producing an unjust result, giving rise to plain error. (pp. 31-34) 
6. The Court addresses the issues raised in the concurrence, and stresses that its ruling is distinctly fact-sensitive and based on the standard of review. (pp. 34-38) 
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Appellate Division for proceedings consistent with this opinion. 
CHIEF JUSTICE RABNER, CONCURRING, is of the view that multiple reasonable inferences can be drawn from defendant’s behavior after the interview and that no authority directly supports the use of evidence of a witness’s demeanor after an interrogation has ended. According to Chief Justice Rabner, the video’s minimal relevance was substantially outweighed by the risk of undue prejudice and the danger that the recording would mislead the jury, and the evidence should have been excluded under N.J.R.E. 403. Chief Justice Rabner concurs in the judgment because he finds the error was harmless in light of other strong evidence of defendant’s guilt. 

JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON join in JUSTICE PATTERSON’s opinion. CHIEF JUSTICE RABNER filed a separate, concurring opinion, in which JUSTICES ALBIN and TIMPONE join 

Monday, June 19, 2017

STATE OF NEW JERSEY VS. DAMMEN D. MCDUFFIE/ STATE OF NEW JERSEY VS. HAKEEM A. CHANCE A-1344-14T2/A-3634-14T3

STATE OF NEW JERSEY VS. DAMMEN D. MCDUFFIE/
          STATE OF NEW JERSEY VS. HAKEEM A. CHANCE
          A-1344-14T2/A-3634-14T3(CONSOLIDATED)
We examine defendants' attack on the State's exercised privilege, refraining from disclosing information regarding details related to a global positioning system (GPS) tracking
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device used to prove their involvement in two burglaries. We rejected defendants' constitutional attacks and upheld the privilege granted by N.J.R.E. 516 and N.J.S.A. 2A:84A-28, defining the guidelines reviewed when weighing disclosure in light of the asserted privilege. These include: (1) whether defendant demonstrates a particularized need for disclosure related to advance a stated defense; (2) whether the opportunity to cross-examine the officer, asserting non-disclosure based on privilege, satisfies a defendant's need to challenge the credibility of the testifying witness; (3) whether law enforcement provided required corroborating evidence extrinsic to the GPS, to protect a defendant's rights of confrontation and fair trial; and (4) whether a defendant has the opportunity to provide expert testimony to attack the evidence without disclosure of the requested information. 

STATE OF NEW JERSEY IN THE INTEREST OF M.P. A-0303-16T2


STATE OF NEW JERSEY IN THE INTEREST OF M.P.
          A-0303-16T2
In this juvenile delinquency prosecution, the Family Part sua sponte transferred venue to another vicinage without notice to the juvenile defendant or the State. When the State objected, the judge held a hearing and stated the transfer was occasioned by receipt of a confidential report filed by an judiciary employee pursuant to Judiciary Employee Policy #5-15, "Reporting Involvement in Litigation," (effective June 1, 2016) (the Policy). In a subsequently filed brief statement of reasons, without identifying the employee or his or her relationship to the litigation, the judge concluded that given the employee's access to the Family Automated Case Tracking System (FACTS), location in the courthouse and interaction with the public, the Policy required the transfer of venue.
The court granted the juvenile's motion for leave to appeal, which the State supported, and reversed. Our Court Rules presume venue is laid in the county of the juvenile's domicile, a presumption further supported by provisions of the Code of Juvenile Justice. Additionally, the Crime Victim's Bill of Rights require the court to consider the inconvenience to the victim occasioned by the transfer of venue.
While the Family Part Presiding Judge may order the transfer of venue for good cause over the objections of the juvenile and the State, the court must provide notice of its intention and an opportunity to object beforehand. Additionally, the court's power must be exercised in service to the goals of the Policy, i.e., "to maintain [the Judiciary's] high degree of integrity and to avoid any actual, potential or appearance of partiality or conflict of interest in the adjudication or handling of all cases," and the court must consider whether a less drastic measure, such as "insulating the [court employee] from the matter," would accomplish these goals

STATE OF NEW JERSEY VS. VICTORIA MAJEWSKI A-2032-15T2

STATE OF NEW JERSEY VS. VICTORIA MAJEWSKI
          A-2032-15T2
The grand jury indicted defendant in a single count charging her with aggravated assault by throwing a bodily fluid, N.J.S.A. 2C:12-13, which provides,
A person who throws a bodily fluid at a . . . law enforcement officer while in the performance of his duties or otherwise purposely subjects such employee to contact with a bodily fluid commits an aggravated assault. If the victim suffers bodily injury, this shall be a crime of the third degree. Otherwise, this shall be a crime of the fourth degree.
The State alleged defendant spat at another inmate, and it landed on a corrections officer.
Defendant moved to dismiss the indictment, arguing the prosecutor failed to charge the grand jury regarding the statute's requisite mental state and failed to present clearly exculpatory evidence that negated her guilt. State v. Hogan, 144 N.J. 216, 237 (1996). This evidence included statements of inmates and the disciplinary report of the investigative corrections officer, which confirmed that defendant intended to spit at a fellow inmate, not the officer.
The judge denied the motion to dismiss, concluding the evidence did not meet the standard enunciated in Hogan, but he did not resolve what mental state was required under the statute or
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whether the prosecutor's instructions were appropriate. Defendant thereafter pled guilty.
The court concluded the State must prove that defendant acted purposely, and that the doctrine of transferred intent, N.J.S.A. 2C:2-3(d), cannot elevate the act of spitting, even if an offense under the Criminal Code, into an aggravated assault, unless the officer was the intended target. See, e.g., State ex rel S.B., 333 N.J. Super. 236, 244-45 (App. Div. 2000). Defendant's motion to dismiss should have been granted because the prosecutor failed to inform the grand jurors of the requisite culpable mental state. 

Wednesday, June 14, 2017

NJ adopted same-elements test as the sole test for determining what constitutes the “same offense” for purposes of double jeopardy. More difficult for double jeopardy State v. Rodney J. Miles

NJ adopted same-elements test as the sole test for determining what constitutes the “same offense” for purposes of double jeopardy. More difficult for double jeopardy State v. Rodney J. Miles (A-72-15) (077035)
Argued January 4, 2017 -- Decided May 16, 2017
Timpone, J., writing for a majority of the Court.
In this appeal, the Court clarifies the methodology to be used in analyzing whether two offenses are the “same offense” for double jeopardy purposes. Since the 1980s, New Jersey courts have applied both the same-evidence test and the same-elements test articulated in Blockburger v. United States, 284 U.S. 299 (1932), in double jeopardy determinations. A finding that offenses met either test resulted in double jeopardy protection for the defendant.
A grand jury returned an indictment-charging defendant with the offenses in the warrant complaint. Defendant then appeared pro se in municipal court to resolve the disorderly-persons offense. At some point before that video proceeding, the original municipal charge was amended to a different disorderly-persons offense—loitering to possess marijuana. Defendant asked the municipal court judge, “why they got me going to Superior Court for this, Your Honor?” The judge then responded that defendant was “not going to Superior Court for this,” but rather for an unrelated child support issue. Defendant then pled guilty to loitering to possess marijuana.
Thereafter, defendant moved to dismiss the Superior Court indictment on double-jeopardy grounds, arguing that prosecution on the possession charges was barred because he had already pled guilty to an offense that arose from the same conduct. The Superior Court denied defendant’s motion to dismiss, reasoning that prosecution on the indicted charges was not barred because it required proof of an additional element—proximity to a school. Defendant pled guilty to possession of CDS with intent to distribute within 1000 feet of a school (the school-zone charge), but preserved his right to appeal the denial of the motion to dismiss.
On appeal, the Appellate Division remanded for a finding on the circumstances surrounding the amendment of the disorderly-persons offense. The panel noted that a plea to the original municipal charge, instead of the amended one, could have led to a different result after applying the double-jeopardy analysis.

On remand, the Superior Court found no direct evidence as to the circumstances surrounding the amendment, and the prosecutor represented that his office was not informed of defendant’s municipal court proceedings. Despite defendant’s expressed confusion during the municipal court plea hearing, the Superior Court concluded that the school-zone prosecution was not precluded by notions of fundamental fairness.

Defendant appealed again, arguing that double jeopardy barred prosecution on the school-zone charge. The Appellate Division agreed, finding that, although the second prosecution was not barred under the same-elements test, it was barred under the same-evidence test. 443 N.J. Super. 212, 220, 225-27 (App. Div. 2015).

The Court granted the State’s petition for certification. 225 N.J. 339 (2016).

HELD: New Jersey now joins the majority of jurisdictions in returning to the Blockburger same-elements test as the sole test for determining what constitutes the “same offense” for purposes of double jeopardy. In the interest of justice, the Court applied both the same-elements test and the now-replaced same-evidence test in this case; going forward, for offenses committed after the issuance of this opinion, the same-elements test will serve as the singular framework for determining whether two charges are the same offense for purposes of double-jeopardy analysis.
1. Here, the municipal court had jurisdiction to resolve defendant’s disorderly-persons charge pursuant to N.J.S.A. 2B:12-17, and failure to join does not automatically bar subsequent prosecution. For judicial efficiency and fairness to defendants, the Court urges careful coordination between the municipal courts and county prosecutors.  

2. The Court has consistently interpreted the State Constitution’s double-jeopardy protection as coextensive with the guarantee of the federal Constitution. A prime concern when reviewing a double-jeopardy claim is whether the second prosecution is for the same offense involved in the first.  

3. The United States Supreme Court first announced its test for determining whether a second prosecution is for the same offense in Blockburgersupra, 284 U.S. at 304: If each statute at issue requires proof of an element that the other does not, they do not constitute the same offense and a second prosecution may proceed. This has come to be known as the same-elements test.  

4. The Court read the language in Illinois v. Vitale, 447 U.S. 410, 421 (1980), as creating an alternative to Blockburger’s same-elements test—the same-evidence test. The United States Supreme Court reached the same conclusion in Grady v. Corbin, 495 U.S.508, 510 (1990), but revised its position in United States v. Dixon, 509 U.S. 688, 704, 708-09 (1993), in which it deemed the same-evidence test unworkable and reinstated the Blockburger same-elements test as the sole measure of whether two offenses constitute the same offense.  

5. Since Dixon, the majority of states have similarly ruled that the Blockburger same-elements test sets forth the proper test for determining whether two charges are the same offense. Until this case, the Court has not had occasion to reevaluate double-jeopardy jurisprudence in light of Dixon’s return to the same-elements test. As a result, appellate panels have split over whether the same-evidence test still applies in New Jersey.  

6. The Court now adopts the same-elements test as the sole double-jeopardy analysis, thereby realigning New Jersey law with federal law. The same-elements test is effortlessly applied at early stages of prosecution; it is capable of producing uniform, predictable results; and it aids defendants by reducing multiple court appearances. Rule 3:15-1(b) bars subsequent prosecutions for indictable offenses, and failure by the prosecution to properly join indictable offenses bars a subsequent prosecution.  State v. Williams, 172 N.J. 361, 368 (2002). The Court recognizes a narrow circumstance where it is possible that neither the same-elements test nor the rule in Williams would prevent a second prosecution; if those unlikely events unfolded, the second prosecution might well be barred on joinder or fundamental fairness grounds. As a further safeguard, the Court invites the Supreme Court Committee on Criminal Practice to review the joinder rule and consider adding non-indictable offenses to it.  

7. Because the decision establishes a new rule of law, the Court applies the new singular same-elements standard prospectively to offenses committed after the date of this opinion. In fairness to defendant, the Court conducts double-jeopardy analysis using both the same-elements test and the now-removed same-evidence test. Application of the Blockburger same-elements test would lead to the conclusion that loitering to possess marijuana is not the same offense as possession within a school zone. Each offense contains at least one element not required to prove the other. Under the same-evidence test, however, successive prosecution for the school-zone offense is prohibited because it is based on the same evidence that supported the plea and conviction on the loitering offense.
8. For offenses committed after the issuance of this opinion, the same-elements test will serve as the singular framework for determining whether two charges are the same offense for double-jeopardy analysis. (p. 23)
The judgment of the Appellate Division is AFFIRMED. Defendant’s conviction and sentence on the school-zone offense are vacated.

JUSTICE ALBIN, DISSENTING, expresses the view that majority’s new rule cannot be squared with the principles of fairness that previously animated New Jersey’s double-jeopardy jurisprudence. According to Justice Albin, the majority’s reversion to the same-elements test will allow the State to pursue repeated prosecutions for the same offense despite an earlier conviction or acquittal.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which JUSTICE LaVECCHIA joins.