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Sunday, June 24, 2018

State v. Gary Twiggs (077686) (Cape May County and Statewide) (A-51-16; 077686)

The DNA-tolling exception applies only when the State obtains DNA evidence that directly matches the defendant to physical evidence of a crime. In Jones, the State presented sufficient evidence of a continuing course of conduct to survive the motion to dismiss.

State v. James E. Jones and Likisha Jones (077964) (Monmouth County and Statewide) (A-63/64/65-16; 077964)

The DNA-tolling exception applies only when the State obtains DNA evidence that directly matches the defendant to physical evidence of a crime. In Jones, the State presented sufficient evidence of a continuing course of conduct to survive the motion to dismiss.

Sunday, June 10, 2018

State in the Interest of J.A., a Juvenile (077383) (Burlington County and Statewide) (A-38-16

Neither exigency nor the hot pursuit doctrine justified the officers’ warrantless entry here. However, defendant’s brother’s actions did not constitute state action and were sufficiently attenuated from the unlawful police conduct to preclude application of the exclusionary rule to the evidence.

State v. Melvin Hester; State v. Mark Warner; State v. Anthony McKinney; State v. Linwood Roundtree (079228) (Essex County and Statewide) (A-91-16

The Federal and State Ex Post Facto Clauses bar the retroactive application of the 2014 Amendment to defendants’ CSL violations. The 2014 Amendment retroactively increased the punishment for defendants’ earlier committed sex offenses by enhancing the penalties for violations of the terms of their supervised release. The Amendment, therefore, is an ex post facto law that violates the Federal and State Constitutions as applied to defendants. The Court affirms the judgment of the Appellate Division dismissing defendants’ indictments.

Sunday, June 03, 2018

STATE OF NEW JERSEY VS. NOEL E. FERGUSON, ET AL. STATE OF NEW JERSEY VS. SHAMEIK BYRD (16-10-0171

These appeals address the issue of territorial jurisdiction in the context of the strict liability for drug-induced death statute, N.J.S.A. 2C:35-9(a), which provides that "[a]ny person who manufactures, distributes or dispenses . . . [a] controlled dangerous substance (CDS) classified in Schedules I or II . . . is strictly liable for a death which results from the injection, inhalation[,] or ingestion of that substance, and is guilty of a crime of the first degree. " New York has no comparable statute. In A-2893-17, the trial court dismissed the strict liability charge against defendants Noel E. Ferguson and Anthony M. Potts, New York residents who allegedly purchased heroin from defendant Shameik Byrd in Paterson and later distributed some of the heroin to the victim in New York, where he died of a heroin overdose. In A-2894-17, the trial court denied Byrd's motion to dismiss the same count of the indictment. The court found that, because Byrd allegedly distributed heroin in New Jersey that ultimately resulted in the user's death, Byrd's conduct fell within the purview of N.J.S.A. 2C:35-9(a). N.J.S.A. 2C:1-3(a)(1) confers territorial jurisdiction in New Jersey when "[e]ither the conduct which is an element of the offense or the result which is such an element occurs within this State." Here, the proofs before the grand jury established that, as to Ferguson and Potts, the distribution and ingestion of heroin and the victim's death all occurred in New York. Accordingly, the State is without territorial jurisdiction to prosecute Ferguson and Potts for strict liability drug-induced death under N.J.S.A. 2C:35-9. The panel concludes there is territorial jurisdiction to prosecute Byrd in New Jersey because his alleged distribution that ultimately resulted in the victim's death occurred in New Jersey, thus satisfying the "conduct" prong of N.J.S.A. 2C:1-3(a)(1). Consequently, the panel affirms the trial court orders.

State v. Melvin Hester; State v. Mark Warner; State v. Anthony McKinney; State v. Linwood Roundtree (079228) (Essex County and Statewide) (A-91-16; 07886

The Federal and State Ex Post Facto Clauses bar the retroactive application of the 2014 Amendment to defendants’ CSL violations. The 2014 Amendment retroactively increased the punishment for defendants’ earlier committed sex offenses by enhancing the penalties for violations of the terms of their supervised release. The Amendment, therefore, is an ex post facto law that violates the Federal and State Constitutions as applied to defendants. The Court affirms the judgment of the Appellate Division dismissing defendants’ indictments.

Monday, May 28, 2018

State v. Isaac A. Young (A-61-16) (078862


 State v. Isaac A. Young (A-61-16) (078862) 
(NOTE: The Court did not write a plenary opinion in this case. Instead, the Court affirms the judgment of the Appellate Division substantially for the reasons expressed in Judge Rothstadt’s written opinion, which is published at 448 N.J. Super. 206 (App. Div. 2017).) 
Argued April 24, 2018 -- Decided May 24, 2018 
PER CURIAM 
An Appellate Division panel vacated defendant’s conviction of permitting or encouraging the release of a confidential child abuse record in violation of N.J.S.A. 9:6-8.10b. The Court considers the panel’s conclusion that defendant’s conduct is beyond the statute’s reach. 
During the 2012 mayoral election in the City of Salem, defendant Isaac A. Young was the executive director of the city’s housing authority. Defendant’s friend and political ally, the incumbent-mayor Robert Davis, was defeated by then-councilman Charles Washington, who was eventually elected mayor. Defendant came into possession of documents sent by the Division of Youth and Family Services, now designated the Division of Child Protection and Permanency (Division), to the City’s police chief. The documents advised the chief that the Division had substantiated allegations of child abuse against Washington. The allegations were later deemed to be unsubstantiated. Defendant showed the documents to others in his office and gave copies to a police officer, Sergeant Leon Daniels, so that Daniels could distribute the documents to others for political purposes. 
Washington found out about the letter’s distribution and called the police chief to his home and showed him the documents that had been mailed out. The chief “recognized the handwriting on the[ ] envelopes” as being Daniels’s, and reported the incident to the Salem County Prosecutor’s Office (SCPO). The SCPO initiated an investigation into the release of the confidential documents. Eventually the SCPO determined that Terri Gross, a civilian clerk with the police department, had obtained the documents from the department and given them to Mayor Davis, and that defendant “had nothing to do with” Gross’s release of the documents to Davis. 
Defendant was charged with permitting or encouraging the release of a confidential child abuse record, a fourth-degree offense, N.J.S.A. 9:6-8.10b; hindering his own apprehension or prosecution by giving a false statement to law enforcement, a disorderly persons offense; and fourth-degree false swearing by inconsistent statements. Defendant filed a motion to dismiss the charge relating to the unlawful release of the confidential documents, arguing that N.J.S.A. 9:6-8.10b did not apply to his conduct. The court denied that motion. After a mistrial and retrial, defendant was convicted of the three offenses. 
Defendant appealed. An Appellate Division panel affirmed defendant’s convictions for hindering and false swearing. 448 N.J. Super. 206, 228 (App. Div. 2017). For the reasons that follow, the panel vacated defendant’s conviction for violating N.J.S.A. 9:6-8.10b and dismissed the indictment for that charge. Ibid. 
The panel stressed that, where it is not clear whether something is permitted under a criminal statute, the benefit of this lack of clarity should accrue to the defendant. If an ambiguity in a criminal statute is not resolved by reviewing the text and extrinsic sources, the rule of lenity dictates that the ambiguities must be interpreted in favor of the defendant. (448 N.J. Super. at 217-19.) 
Reports of abuse made to the Division and “all information obtained by [the Division] in investigating such reports” must be kept confidential. N.J.S.A. 9:6-8.10a(a). That information, however, “may be disclosed[, but] only under the circumstances expressly authorized” by the statute. Ibid. The statute specifies various entities and people to whom disclosure can be made under various conditions. N.J.S.A. 9:6-8.10a(b) to (g). Among them is “[a] police

or other law enforcement agency investigating a report of child abuse or neglect.” N.J.S.A. 9:6-8.10a(b)(2). The statute imposes a duty upon authorized recipients to maintain the confidentiality of the information disclosed to them by the Division. The prohibition against disclosure states: “Any individual, agency, board, court, grand jury, legislative committee, or other entity which receives from the department the records and reports referred to in subsection a., shall keep the records and reports, or parts thereof, confidential and shall not disclose the records and reports or parts thereof except as authorized by law.” N.J.S.A. 9:6-8.10a(b) (emphasis added). The statute, therefore, prohibits the Division or anyone who receives confidential documents in accordance with the statutes from failing to maintain the documents’ confidentiality. (448 N.J. Super. at 219-20.) 
The next statute, N.J.S.A. 9:6-8.10b, imposes a penalty upon “[a]ny person who willfully permits or encourages the release of the contents of any record or report in contravention of this act.” (emphasis added). That statute makes a release “a misdemeanor . . . subject[ing a violator] to a fine of not more than $1,000.00, or to imprisonment for not more than 3 years, or both.” Ibid. (448 N.J. Super. at 220-21.) 
Because the Legislature specifically limited culpability under the statute to authorized individuals or entities that receive confidential documents from the Division but then fail to maintain their confidentiality or anyone who encourages their improper release, there was no evidence adduced at defendant’s trial that he violated the plain language of N.J.S.A. 9:6-8.10b. It was undisputed that he did not receive any documents from the Division or from Gross, or encourage Gross to release the documents to him or anyone else. Defendant claimed he received the documents in an anonymous mailing sent to him and there was no evidence to the contrary. Therefore, applying the statute’s clear language, the trial court erred by not dismissing the charge that defendant violated N.J.S.A. 9:6-8.10a(b), and defendant’s conviction for that offense must be vacated. (448 N.J. Super. at 221-22.) 
The Court granted the State’s petition for certification challenging that determination, 230 N.J. 355 (2017), but denied defendant’s cross-petition challenging the convictions affirmed by the panel, 230 N.J. 373 (2017). 
HELD: The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Rothstadt’s well-reasoned opinion. 
1. The Appellate Division panel held that N.J.S.A. 9:6-8.10b applies only to the Division and to persons and entities authorized by N.J.S.A. 9:6-8.10a(b) to receive confidential records from the Division. The Appellate Division’s construction of N.J.S.A. 9:6-8.10a and -8.10b does not constitute the only reasonable interpretation of the statutory language. Indeed, the State construes N.J.S.A. 9:6-8.10a(a) to generally impose a confidentiality requirement on all persons and entities who receive child abuse records governed by the statute. To the State, N.J.S.A. 9:6-8.10a(b) should be viewed to merely clarify that when a confidential child abuse record is disclosed as authorized by that subsection, anyone given access to it must treat it as confidential. The State’s construction of the statute is reasonable. That determination, however, does not resolve the statutory construction issue presented by this appeal. Given that the statutory language is subject to more than one reasonable interpretation, and that extrinsic sources do not resolve the parties’ dispute, the Court finds an ambiguity that cannot inure to the benefit of the State. Applying the rule of lenity, the Court adopts the Appellate Division panel’s construction of N.J.S.A. 9:6-8.10a and -8.10b, and concurs with the panel that defendant’s conduct is beyond the reach of N.J.S.A. 9:6-8.10b. The Court stresses that its holding should not be viewed to minimize the gravity of the acts that led to defendant’s prosecution. (pp. 2-4) 
2. It is in the domain of the Legislature to determine whether an individual who is unauthorized to view records deemed confidential under the statute, but who nonetheless knowingly gains access to such confidential records and disseminates them to others, is subject to the criminal penalties set forth in N.J.S.A. 9:6-8.10b. If the Legislature concludes that the State’s position represents the better public policy, it has the power to amend N.J.S.A. 9:6-8.10a and -8.10b. (p. 4) 

The judgment of the Appellate Division is AFFIRMED

Sunday, May 20, 2018

STATE OF NEW JERSEY VS. MARIANNE MCINTYRE-CAULFIELD (17-09-0823, MIDDLESEX COUNTY AND STATEWIDE) (A-1277-17T1)

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

Saturday, May 12, 2018

STATE OF NEW JERSEY VS. ROBERT J. KOSCH, JR. (13-05-0188, SUSSEX COUNTY AND STATEWIDE) (A-2982-16T3)

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

Sunday, May 06, 2018

ESTATE OF RONALD DOERFLER, ET AL. VS. FEDERAL INSURANCE COMPANY STEPHANIE E. DOERFLER VS. CHUBB INSURANCE COMPANY OF NEW JERSEY (L-2960-14 AND L-0483-14, OCEAN COUNTY AND STATEWIDE) (CONSOLIDATED) (A-3352-15T2/A-3353-15T2)

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

STATE OF NEW JERSEY VS. ALLAQUAN JACKSON (00-03-0886, ESSEX COUNTY AND STATEWIDE) (A-1884-16T2)

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

STATE OF NEW JERSEY VS. MICHAEL CLARITY (13-10-0621, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4831-16T2

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

STATE OF NEW JERSEY VS. LUIS MELENDEZ (11-02-0332, HUDSON COUNTY AND STATEWIDE) (A-1301

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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