Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
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Sunday, December 08, 2019

IN THE MATTER OF THE EXPUNGEMENT OF C.P.M. (XP-18-0686, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4210-18T3)

In this matter, we address whether it was error to grant C.P.M.'s petition for expungement under the "crime spree" doctrine set forth in the 2018 amendment to N.J.S.A. 2C:52-2(a). C.P.M. filed a petition seeking to expunge several offenses from his criminal record, including: (1) an April 10, 2005 conviction for third-degree possession of CDS, in violation of N.J.S.A. 2C:35-10(a)(1); and (2) two June 22, 2005 convictions for fourth-degree burglary, in violation of N.J.S.A. 2C:18-2, and fourth-degree criminal mischief, in violation of N.J.S.A. 2C:17-3(a)(1).
Despite the requirement under N.J.S.A. 2C:52-2(a) that a court could only grant an expungement to an applicant who had not been "convicted of any prior or subsequent crime," petitions were periodically granted under a "single spree" or "crime spree" doctrine. In 2015, the Supreme Court definitively rejected the crime spree doctrine, holding that the Legislature clearly intended to "permit expungement of a single conviction arising from multiple offenses only if those offenses occurred as part of a single, uninterrupted criminal event." In re Expungement Petition of J.S., 223 N.J. 54, 73 (2015).
On October 1, 2018, N.J.S.A. 2C:52-2(a) was amended to permit the expungement of multiple crimes or offenses that "were interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period. . . ." The Legislature explained that the addition of the "interdependent or closely related in circumstances" and "within a comparatively short period of time" language was intended to allow expungement of "a so-called 'crime spree.'" S. Judiciary Comm. Statement to S. 3307 1 (L. 2017, c. 244) (emphasis added).
During the hearing on his petition, C.P.M. contended he was eligible for expungement under the crime spree exception in the newly amended statute. He argued that because he was under the influence of drugs during the several-month period in which the offenses occurred, his April and June 2005 convictions were sufficiently related. C.P.M. asserted that the trial court's analysis should include the motivations behind why a defendant committed the crimes.
The court granted the expungement petition under the crime spree exception in N.J.S.A. 2C:52-2(a). In relying on C.P.M.'s certifications, the judge concluded that C.P.M.'s drug use during the time period of the offenses was the "nexus" permitting a determination that the two incidents were closely related in circumstances.
This court reverses, finding the plain language of N.J.S.A. 2C:52-2(a) bars the expungement of C.P.M.'s convictions as the offenses were not interdependent or closely related in circumstances. The offenses at issue – drug possession, burglary, and criminal mischief – do not share common elements. The crimes also are not similar in nature. These offenses were not committed as part of some larger criminal scheme; each offense was a distinct crime perpetrated under entirely different and unrelated circumstances.
A defendant's self-serving declaration of his or her motivation behind crimes fifteen years after their occurrence is not a cognizable consideration within the meaning of the statute. We are satisfied the Legislature did not intend the result compelled by the trial court – that any person addicted to drugs could be eligible for an expungement of any crime the person alleged was committed while he or she was under the influence of an illegal substance.

STATE OF NEW JERSEY VS. N.T. (07-12-2892, MONMOUTH COUNTY AND STATEWIDE) (A-1012-18T2)

Defendant filed a petition for the expungement of all records relating to her arrest and conviction for third-degree endangering the welfare of a child for causing the child harm that would make the child an abused or neglected child, N.J.S.A. 2C:24-4(a)(2). She contended that the 2016 amendments to the expungement statute, N.J.S.A. 2C:52-2(b), permitted the expungement of non-sexual Title 9 crimes.
Although the intent behind the amended N.J.S.A. 2C:52-2(b) strongly favors expungement for rehabilitated offenders, the statute includes a list of numerous crimes that are barred from expungement. The crime to which defendant pleaded guilty is included on that list. Therefore, the court found the plain language of the statute prohibited the expungement of any conviction under N.J.S.A. 2C:24-4(a).

STATE OF NEW JERSEY VS. ANTHONY G. PINSON, ET AL. STATE OF NEW JERSEY VS. DARNELL R. KONTEH, ET AL. (18-02-0346,

In these related interlocutory appeals, the motion judges suppressed weapons – allegedly involved in crimes in both counties – seized after a motor vehicle stop. The court determined the first motion judge improperly invalidated the arrest warrant that precipitated the seizure by: viewing a video that was not seen by the issuing judge; excising the statement that related to the video; and concluding the affidavit no longer supported probable cause, without conducting an evidentiary hearing.
While that suppression motion was pending, the parties in the other county urged the judge to adjourn defendants' identical suppression motion, pending the first motion judge's decision. Thereafter, the second motion judge properly granted defendants' motion based on the collateral estoppel doctrine. Because the court determined the first judge improperly invalidated the arrest warrant – and the second judge correctly concluded the collateral estoppel doctrine applied to the suppression motion before him – the court was compelled to vacate the second judge's suppression order.
The court remanded both matters for further proceedings.

STATE OF NEW JERSEY VS. ANTOINE WILLIAMS (18-02-0353 AND 18-02-0354, MIDDLESEX COUNTY AND STATEWIDE) (A-5648-18T4)

The court granted leave to consider a trial court ruling about excludable time under the Criminal Justice Reform Act. In this case, excludable time was generated by two separate pretrial motions, which, for a while, were pending at the same time. The trial judge ordered that the excludable time permitted for one motion would not commence until the excludable time for the other motion ended. The court reversed, holding that the applicable statute and rule mandate that excludable time for an eligible pretrial motions commences when the motion is filed, and may expire in whole or in part simultaneously. Courts have no authority to "stack" excludable time periods.

Sunday, December 01, 2019

IN THE MATTER OF CLIFTON GAUTHIER, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION) (A-4015-17T4)

After criminal charges were lodged against him, Rockaway Township suspended Clifton Gauthier, a police officer, without pay. Gauthier successfully completed the pretrial intervention program (PTI), N.J.S.A. 2C:43-12 to -22, and the charges were dismissed. The Township reinstated him, and paid him withheld wages from the date of the PTI dismissal to the date of reinstatement. The Township refused to pay him wages from the time the charges were filed to the date of dismissal. The Civil Service Commission affirmed.
The court affirmed the Commission, as Gauthier's successful PTI completion was not one of the favorable dispositions of criminal charges which mandate payment of back wages enumerated in N.J.S.A. 40A:14-149.2. The statute predated the PTI scheme by years. The Court further held that the adoption of N.J.A.C. 4A:2-2.10(c), which exempts municipal police from its scope, was not thereby intended to require back wages to be paid.

STATE OF NEW JERSEY VS. SAAD A. SAAD (17-10-1485, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4124-18T4

The court granted leave to appeal an order amending an indictment to reduce five counts alleging endangering the welfare of a child through sexual conduct from second-degree to third-degree charges. At issue is whether defendant, a pediatric surgeon who the State alleges molested four teenage patients during and after medical examinations, had a "legal duty for the care of" his victims or had "assumed responsibility for the care of" his victims within the meaning of second-degree endangering under N.J.S.A. 2C:24-4(a)(1).
The court held that although defendant had a professional duty to refrain from sexual contact with his patients, under the Supreme Court's narrow interpretation of N.J.S.A. 2C:24-4(a)(1) in State v. Galloway, 133 N.J. 631 (1993), the State must prove defendant had a "continuing or regular supervisory or caretaker relationship" with his victims to establish second-degree endangering. The evidence presented to the grand jury, even when viewed in the light most favorable to the State, instead suggests defendant, who treated the victims as a specialist for acute medical conditions, had limited and infrequent contact with his victims more akin to the "temporary, brief, or occasional caretaking functions" the Court determined in Galloway to fall under what now constitutes third-degree endangering.
The court also held that the legal duty for the care element of second-degree endangering cannot be established by proving defendant violated N.J.A.C. 13:35-6.3(c), a regulation of the Board of Medical Examiners prohibiting sexual contact between a physician and his or her patient. The regulation subjects physicians who violate its provisions to disciplinary measures relating to their licenses to practice medicine, but not criminal sanctions.

STATE OF NEW JERSEY VS. GREGORY J. PARKHILL (13-07-2155, CAMDEN COUNTY AND STATEWIDE) (A-4802-17T4)

In this vehicular homicide case, the State contended that defendant recklessly caused a pedestrian's death by speeding excessively. Defendant denied excessive speed and disputed that he caused the death of a pedestrian, alleging the pedestrian unexpectedly crossed the roadway outside the crosswalk and against the light. The court reverses defendant's conviction because the trial court should have delivered the model jury charge on causation, consistent with N.J.S.A. 2C:2-3(c), and it also should have instructed the jury, as defendant requested, that the motor vehicle code, N.J.S.A. 39:4-36(a)(4), requires pedestrians outside a crosswalk to yield to vehicles in the roadway.

Sunday, November 24, 2019

STATE OF NEW JERSEY VS. ENOC PIMENTEL (15-06-0517, PASSAIC COUNTY AND STATEWIDE) (A-2814-17T2)

Defendant was charged under N.J.S.A. 2C:40-26 with the fourth-degree criminal offense of driving with a license that had been suspended because of multiple previous drunk driving convictions.
The court rejects defendant's claims that the 180-day mandatory minimum jail sentence prescribed by N.J.S.A. 2C:40-26 is cruel and unusual punishment, and that it also violates federal and state constitutional principles of equal protection and due process.
The stringent penalty chosen by the Legislature is constitutionally permissible to advance legitimate policy objectives of deterrence and public safety.
The court also reaffirms that the clear terms of statute do not allow judges the discretion to impose a lesser sentence.

Sunday, November 17, 2019

IN THE MATTER OF REGISTRANT A.A. (ML-09-07-0111) (ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0678-18T1)

IN THE MATTER OF REGISTRANT A.A. (ML-09-07-0111) (ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0678-18T1)
This court addressed what general procedure and related due process protections are afforded to individuals who committed crimes outside New Jersey when law enforcement allege that those crimes are "similar to" Megan's Law offenses under N.J.S.A. 2C:7-1 to -23, and therefore require registration in this State. This court held that an assistant prosecutor first makes the "similar to" determination. If required to register, the offender can challenge that obligation in the Law Division. At a summary hearing, in accordance with R.B.,1 the judge should (1) undertake an element-by-element legal comparison of the criminal codes of New Jersey and the other state; and (2) compare the elements of the crimes with the purposes of the underlying criminal statutes. Consistent with R.B., the judge may also examine trustworthy relevant evidence as to the underlying factual predicate for the out-of-state conviction.

STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS. ALSOL CORPORATION (29-2017, MIDDLESEX COUNTY AND STATEWIDE) (A-3546-17T1)

STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS. ALSOL CORPORATION (29-2017, MIDDLESEX COUNTY AND STATEWIDE) (A-3546-17T1)
In this appeal, this court must determine whether the Law Division correctly decided that municipal courts have jurisdiction to impose civil penalties in an enforcement action filed by the New Jersey Department of Environmental Protection (DEP) pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.24 (the Spill Act). After reviewing the record developed by the parties, this court holds municipal courts have jurisdiction pursuant to N.J.S.A. 58:10-23.11u(d) to impose civil penalties under the Spill Act in a summary proceeding conducted pursuant to the Penalty Enforcement Law of 1999, N.J.S.A 2A:58-10 to -12.

Tuesday, November 12, 2019

Pot smell permitted search here STATE v. TYJON A. WILLIAMS

Pot smell permitted search here
STATE 
v.

TYJON A. WILLIAMS a/k/a
TYJOU WILLIAMS,

           Defendant-Respondent.


                    Submitted October 17, 2019 – Decided October 24, 2019

                    Before Judges Alvarez and Suter.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 18-04-
                    0512.

                  NOT FOR PUBLICATION WITHOUT THE                                APPROVAL OF THE APPELLATE DIVISION         This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the      internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.                                                              SUPERIOR COURT OF NEW JERSEY                                                          APPELLATE DIVISION                                                          DOCKET NO. A-4223-18T1
 PER CURIAM

      By leave granted, the State appeals a March 25, 2019 Law Division order

suppressing the evidence against defendant Tyjon Williams. See R. 2:2-4. We

now reverse.

      At the hearing, only the arresting officers testified. New Brunswick Police

Officers Justin Meccia and Richard Reed were operating an unmarked patrol car

on January 29, 2018, at 11:24 p.m., when they noticed a black Acura parked at

the intersection in a high-crime area. The officers ran the license plate number

through their computer and learned the registered owner's driver's license

privileges had been suspended.

      The officers made a U-turn, and followed the Acura. After it turned right,

the officers activated their lights. The vehicle, driven by defendant, stopped in

an area described by one of the officers as a residential parking lot. Defendant

lives in one of the homes or apartments adjoining the area where he parked.

      Both officers testified, corroborated by the mobile video recording played

in court during the hearing, that defendant when stopped immediately walked

towards them asking "what I do wrong?" On the video, one of the officers

responds that defendant was driving with a suspended license. Defendant was

repeatedly instructed by both officers to return to his car. He continued to


                                                                         A-4223-18T1
                                       2
 approach and was arrested for obstruction. While searching his person incident

to the arrest, the officers discovered $729 in cash. Both officers noted that

defendant smelled of marijuana. Meccia specifically recalled the odor was of

raw marijuana.

      After placing defendant in the rear of their vehicle, the officers

approached defendant's car. A voice is heard on the recording commenting "a

strong odor in the back seat" emanated from the vehicle. A bag containing

thirty-three grams of raw marijuana and a Tupperware container with plastic

baggies were discovered underneath the passenger seat.

      The judge found the facts, generally undisputed, as we have described

them including that defendant was initially arrested for obstruction,  N.J.S.A.

2C:29-1, for which he was not formally charged, because of his failure to obey

police commands. In contrast to the testimony, however, the judge described

the area where defendant came to a stop as a driveway.

      The judge granted the motion as a matter of law because "the vehicle was

not mobile at that time . . . [and] defendant was already in custody." Since the

vehicle was parked "in the driveway[,]" and he opined that the officers had

secured the scene, he concluded no exception to the warrant requirement

applied.


                                                                        A-4223-18T1
                                       3
       The State's sole point on appeal is:

            THE    TRIAL    COURT     ERRONEOUSLY
            SUPPRESSED    EVIDENCE     FOUND    IN
            DEFENDANT'S CAR FOLLOWING A VALID AND
            UNFOR[E]SEEABLE MOTOR VEHICLE STOP,
            FOLLOWED BY DEFENDANT'S FAILURE TO
            OBEY AN ORDER OF THE POLICE AND
            CREDIBLE EVIDENCE OF A STRONG SMELL OF
            MARIJUANA EM[A]NATING FROM THE CAR.

      To restate the issue, the question posed is whether the automobile

exception to the Fourth Amendment's warrant requirement applies. It is well-

established that the Fourth Amendment of the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution, require police to obtain

warrants before making searches and seizures.          Warrantless searches and

seizures are presumptively invalid. See State v. Rodriguez,  459 N.J. Super. 13,

20 (App. Div. 2019).

      In State v. Witt,  223 N.J. 409 (2015), the Court "announced . . . a sharp

departure from a more narrow construction of the automobile exception."

Rodriguez,  459 N.J. Super. at 21. As Rodriguez explains, the Witt decision

observed that the "multi-factor exigent circumstances test" of prior case law was

"difficult to apply with consistency, particularly for law enforcement officers on

patrol, and placed upon them 'unrealistic and impracticable burdens.'" Ibid.

(citing Witt,  223 N.J. at 414-15). The Court in Witt restated the test to authorize

                                                                           A-4223-18T1
                                        4
 automobile searches where "(1) the police have probable cause to believe the

vehicle contains evidence of a criminal offense; and (2) the circumstances giving

rise to probable cause are unforeseeable and spontaneous." Id. at 22 (citing Witt,

 223 N.J. at 447-48).

      In this case, the police had a reasonable and articulable suspicion that a

driver was violating motor vehicle laws, and thus stopped the Acura because the

registered owner's license was suspended. State v. Dunbar,  229 N.J. 521, 533

(2017). Defendant's subsequent conduct of approaching police despite being

repeatedly commanded to return to his car, established probable cause for an

arrest for obstruction. Once arrested, both officers smelled a strong odor of

marijuana on defendant's person. Thus, the police had probable cause to search

the vehicle for drugs. The strong odor of marijuana emanating from the car

bolstered the probable cause for the officers to lawfully search the passenger

compartment.

      The circumstances which gave rise to this search were clearly unforeseen

and spontaneous. It makes no difference here, contrary to the Law Division

judge's conclusion, that defendant drove his car to a residential parking area

adjacent to his home. An unlicensed driver, like a drunken driver, cannot defeat

enforcement of the motor vehicle laws by entering a restricted parking area, such


                                                                          A-4223-18T1
                                        5
 as the one in this case. See State v. Nikola,  359 N.J. Super. 573, 586 (App. Div.

2003) (finding that defendant's entry into an open garage did not prevent her

warrantless arrest for driving while intoxicated,  N.J.S.A. 39:4-50).

      After defendant was lawfully arrested, the officers smelled marijuana on

his person, giving rise to probable cause to search his vehicle. The fact that the

smell of marijuana from the car was noticeable before the officers entered the

vehicle simply added an additional factor contributing to probable cause.

      The three rationales that anchor the current automobile exception apply in

this case. See Witt,  223 N.J. at 422-23 ("(1) the inherent mobility of the vehicle;

(2) the lesser expectation of privacy in an automobile compared to a home; and

(3) the recognition that a Fourth Amendment intrusion occasioned by a prompt

search based on probable cause is not necessarily greater than a prolonged

detention of the vehicle and its occupants while the police secure a warrant.")

(internal citations omitted).

      The vehicle continued to be mobile regardless of its location off-street. In

the same way it pulled into the residential parking area, it could have as easily

pulled out. The proximity of the parking area to defendant's home did not create

a reasonable expectation of privacy that took the search out of the automobile

exception. The intrusion upon defendant's privacy was no different regardless


                                                                           A-4223-18T1
                                        6
 of the location – here it was still, essentially, a roadside stop. See Witt,  223 N.J.

at 422-23.

      The officers were not obligated to obtain a warrant because defendant had

been taken into custody and was seated in the back of the police car, or because

the arrest was made after he parked his vehicle in an open area near his home.

The judge's observation that the scene was "secured" has little meaning in this

case. The automobile exception as defined in Witt applies. The motion should

not have been granted.

      Reversed.

Monday, November 11, 2019

Drug dog was ok here at same time as stop for driving while suspended STATE v FLOYD

Drug dog was ok here at same time as stop for driving while suspended STATE v

FLOYD,

           Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE                                APPROVAL OF THE APPELLATE DIVISION         This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the      internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.                                                              SUPERIOR COURT OF NEW JERSEY                                                          APPELLATE DIVISION                                                          DOCKET NO. A-0696-18T1
 PER CURIAM

      On leave granted, the State appeals an August 27, 2018 Law Division

order suppressing drugs seized during a roadside stop from defendant Garry

Floyd's car. As a result of the seizure, defendant was indicted for narcotics

offenses.1 In light of State v. Witt,  223 N.J. 409 (2015), we now reverse the

judge's decision that the automobile exception to the warrant requirement did

not apply to this roadside stop.

      The facts are stipulated.  2 In July 2019, Woodbridge Township Police

Detective Jaremczak3 observed a narcotics sale, during which he identified the

seller as an individual he referred to only as S1.           Jaremczak conducted


1
  The five-count indictment charges defendant with third-degree possession of
heroin, a controlled dangerous substance (CDS),  N.J.S.A. 2C:35-10(a)(1); third-
degree possession of cocaine,  N.J.S.A. 2C:35-10(a)(1); first-degree possession
of cocaine with intent to distribute,  N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1);
second-degree possession of cocaine with intent to distribute within 500 feet of
public property,  N.J.S.A. 2C:35-7.1; and third-degree financial facilitation of
criminal activity,  N.J.S.A. 2C:21-25(a).
 2 R. 3:5-7(c) requires testimony to be taken "[i]f material facts are disputed . . ."
in a suppression motion. In this case, defendant alleged, and argues on appeal,
that the investigating officer had probable cause before the search was
conducted. He claims that the roadside motor vehicle stop was a ruse for a
warrantless seizure. Testimony and credibility findings would have assisted our
review.
3
  The briefs and the transcript of oral argument do not contain the full names of
any of the officers involved.
                                                                             A-0696-18T1
                                         2
 surveillance at S1's home over the next few weeks and witnessed a number of

suspected drug transactions.     In August, a confidential informant whom

Jaremczak had found reliable in the past, told him that S1 was expecting a large

shipment of cocaine.

      Accordingly, Jaremczak continued to surveil S1's home over several days.

On August 18, 2016, Jaremczak saw a white Mercedes parked in front of S1's

residence. The driver went into the house for about twenty minutes, and talked

to S1 for another ten on the front lawn. The driver then returned to the Mercedes

and drove away.

      On August 19, Jaremczak and another officer, Bonilla, located S1's

vehicle in Perth Amboy. While observing S1's car, Jaremczak asked Bonilla to

look for the Mercedes, which Bonilla found nearby. The Mercedes travelled to

the location of S1's car, and then left the area in tandem with S1's vehicle.

Jaremczak followed them back to S1's residence, which S1 entered through the

front door.

      Meanwhile, the driver of the Mercedes walked down the driveway

alongside the house towards the rear, disappeared, returned, and threw

something in the trunk of the vehicle. Jaremczak did not see what the driver

threw into the trunk.    When the car pulled away, Jaremczak and Bonilla


                                                                         A-0696-18T1
                                       3
 followed. During the next few miles, the officers witnessed the driver, later

identified as defendant, committing multiple motor vehicle violations, including

operating the Mercedes at seventy miles per hour in a fifty mile per hour zone,

passing other drivers at a high rate of speed from the left- and right-hand lanes,

and tailgating a tractor trailer.

      Since no testimony was taken, we do not know why a third officer, a

Detective Grogan, was asked to stop the motor vehicle while it was in Jaremczak

and Bonilla's view. Grogan, as instructed by Jaremczak, ran defendant's name

through his computer, ascertaining that defendant's license was suspended and

that he had a motor vehicle history of driving while suspended.          Also at

Jaremczak's instruction, Grogan arrested defendant. Defendant was driven to

the Woodbridge police headquarters while the officers remained at the scene.

      Grogan had been traveling with his drug detection dog Blade, whom he

brought out to examine the exterior of the Mercedes for narcotics. Blade alerted

Grogan to the presence of contraband in the trunk, which was then searched.

      Jaremczak seized two yellow ShopRite bags, one inside the other,

containing a large clear bag holding approximately 495 grams of cocaine, from

the trunk. A brown Gucci sunglasses case containing a small clear bag holding

0.9 grams of cocaine, and a small yellow bag holding 1.5 grams of powder


                                                                          A-0696-18T1
                                        4
 heroin were taken from the far left and right areas of the trunk. Two of the three

pieces of mail in the trunk were addressed to defendant.

      Grogan discovered a small blue bag of 0.3 grams of marijuana in the rear

seat. Defendant and another person were listed as the owners of the Mercedes

on documents in the glove compartment. Police also seized three pieces of mail

addressed to defendant as well as a mailing box with defendant's name on it from

the rear passenger floor. The Mercedes was towed to the Woodbridge Police

Department impound yard, and complaints were filed against defendant.

      In his oral decision, the Law Division judge seemed to say that the

investigation before the sniff provided facts sufficient for an anticipatory

warrant. At a minimum, he said:

            there was at least probable cause developed to believe
            that there was drug dealing activity engaged in by S1 as
            a result of the initial arrest of the person who S1 sold
            drugs to back in July 2016, which led to an
            investigation and surveillance over the next couple of
            weeks of S1 . . . .

The judge also found that once the dog sniff was positive, the officers had an

obligation to obtain a search warrant. The car was secured and could readily

have been towed before the search, as was done after. Thus he opined that since

the officers had taken defendant into custody, and had probable cause to search



                                                                          A-0696-18T1
                                        5
 the vehicle, they should have obtained a warrant, making the roadside search

illegal.

       On appeal, the State raises one issue for our consideration:

             THE    TRIAL    COURT     ERRONEOUSLY
             SUPPRESSED    EVIDENCE     FOUND    IN
             DEFENDANT'S CAR FOLLOWING A VALID AND
             UNFORESEEABLE MOTOR VEHICLE STOP AND
             A CANINE ALERT TO NARCOT[IC]S IN THE
             TRUNK OF DEFENDANT'S CAR.

       In light of Witt, and the law that has since developed, most notably, State

v. Rodriguez,  459 N.J. Super. 13 (App. Div. 2019), the search of defendant's

vehicle was proper. We examine this legal issue de novo. See State v. Gamble,

 218 N.J. 412, 425 (2014); State v. Rockford,  213 N.J. 424, 440 (2013); State v.

Gandhi,  201 N.J. 161, 176 (2010). Here, because the facts, incomplete as they

may be, were stipulated, we only address whether the judge erred as a matter of

law and do not consider whether his factual findings were supported by the

record.    See Rowe v. Mazel Thirty, LLC,  209 N.J. 35, 50 (2012) (citing

Gilhooley v. Cty. of Union,  164 N.J. 533, 545 (2000)).

       It bears noting that probable cause did not exist at the point the officer

saw defendant throw an unknown object into the back of the Mercedes. That

the confidential informant claimed a substantial amount of narcotics would be

delivered to S1 did not establish probable cause sufficient for the issuance of a

                                                                          A-0696-18T1
                                        6
 warrant, much less an anticipatory warrant. No date, time, manner of delivery,

or other details were included in the tip. The confidential informant did not

mention defendant's name. Hence it was not until the sniff took place that

probable cause was developed.

      It is black-letter law that the officers could lawfully deploy the canine. A

sniff "does not transform an otherwise lawful seizure into a search that triggers

constitutional protections." State v. Dunbar,  229 N.J. 521, 538 (2017). "If an

officer has articulable reasonable suspicion independent from the reason for the

traffic stop that a suspect possesses narcotics, the officer may continue a

detention to administer a canine sniff." Id. at 540. So long as the sniff does not

unduly extend the stop, it is permissible.

      The officers lawfully stopped defendant because of his motor vehicle

infractions, but had only an uncorroborated hunch that defendant possessed

drugs. Once they stopped him, they were entitled to deploy the canine because

they had a reasonable, articulable suspicion — but not probable cause — that

defendant had narcotics in the trunk. It was not until the dog responded that

probable cause arose.

      Pursuant to Witt, officers may now conduct a warrantless search during a

roadside stop "in situations where: (1) the police have probable cause to believe


                                                                          A-0696-18T1
                                        7
 the vehicle contains evidence of a criminal offense; and (2) the circumstances

giving rise to probable cause are unforeseeable and spontaneous." Rodriguez,

 459 N.J. Super. at 22 (citing Witt,  223 N.J. at 447-48). Applying the Witt

standard, this automobile search passes constitutional muster.

      The circumstances that gave rise to the sniff were "unforeseeable and

spontaneous." Had defendant not violated the motor vehicle laws, the officers

could not have stopped him. Although the officers suspected defendant of

involvement in narcotics trafficking with S1, on this record, they had no specific

information regarding his role or the contents of the plastic bag — they only had

information regarding S1 and a mere hunch about defendant.

      The item defendant placed in his trunk could have been innocuous. Not

all objects even a known drug dealer obtains from a suspected drug dealer are

going to be contraband. The bag could have contained anything. Although the

officers had information regarding the anticipated delivery of a substantial

amount of drugs to S1, they knew nothing about defendant's identity or his role

in the transaction until after his arrest. Furthermore, defendant was taking the

package from S1's home — not delivering it.

      The officers were unexpectedly able to lawfully stop defendant; once they

stopped defendant, the officers were entitled to conduct a canine sniff. Once


                                                                          A-0696-18T1
                                        8
 they received a positive response to the sniff, Witt did not require them to obtain

a warrant and impound the vehicle before searching it. These circumstances are

not the type of "fake exigencies" discouraged by the Witt Court. Rodriguez

explains:

            Viewed in its proper context, the Court's reference in
            Witt to "fake exigencies" signifies that the police
            cannot rely upon a contrived justification to search an
            impounded vehicle without a warrant merely because
            the vehicle could have been searched earlier at the
            roadside. The whole tenor of the Witt opinion is to
            eliminate the need for police to establish "exigencies"
            at the roadside to proceed with a warrantless search.
            Instead, the Court readopted a bright-line rule, one that
            is predicated on the requirements of spontaneity and
            probable cause.

            [Rodriguez,  459 N.J. Super. at 24.]

      That defendant was in custody does not impact the analysis. "[T]he

automobile exception is not nullified" because a suspect is under arrest.

Rodriguez,  459 N.J. Super. at 22. Witt and Dunbar control, and make this

warrantless roadside search proper.

      Reversed and remanded. We do not retain jurisdiction.



Sunday, November 10, 2019

STATE OF NEW JERSEY VS. MICHAEL CLARITY (13-10-0621, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4596-17T3)

When originally sentenced, defendant was found to be a persistent offender eligible for an extended term under N.J.S.A. 2C:44-3(a), even though his last prior conviction occurred more than ten years earlier; the sentencing judge determined that the probationary term imposed on that earlier conviction constituted "confinement" and therefore reasoned that defendant's "last release from confinement" occurred within ten years. We rejected the holding that probation may be equated with confinement and remanded for resentencing. State v. Clarity, 454 N.J. Super. 603 (App. Div. 2018). At the subsequent sentencing proceedings, the State came forward with new information purporting to show defendant violated the terms of the earlier probationary sentence and was imprisoned for thirty months as a result, so that his last release from confinement occurred within ten years. When confronted with this information at resentencing, defense counsel conceded defendant was eligible to be sentenced to an extended term as a persistent offender.

STATE OF NEW JERSEY VS. VINCENT A. PALEY (18-11-1495, MIDDLESEX COUNTY AND STATEWIDE) (A-0308-19T6)

In this interlocutory appeal, the court is asked to determine whether the trial court's August 28, 2019 order violated N.J.S.A. 2A:162-22(a)(2)(a), the speedy trial requirements of the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26, and Rule 3:25-4(c)(1). The order excluded 137 days – August 19, 2019 to January 2, 2020 – from the October 15, 2019 speedy trial deadline for defendant Vincent A. Paley. Defendant is consequently confined in jail until his scheduled January 2, 2020 trial date.