Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Sunday, February 18, 2018

STATE OF NEW JERSEY VS. BRANDON M. WASHINGTON A-1780-17T6


 STATE OF NEW JERSEY VS. BRANDON M. WASHINGTON 
A-1780-17T6/A-2051-17T6(CONSOLIDATED) 
The Appellate Division ruled that the State Police Lab's draft DNA report was not "within the possession, custody or control of the prosecutor" until the lab sent it to the county prosecutor, and in any event was not discoverable until the report was reviewed and approved by the lab. R. 3:13-3(b)(1)(C). Regardless of the speedy trial provisions, the court abused its discretion by excluding the DNA evidence rather than granting a continuance of trial under Rule 3:13-3(b)(1)(I) and -3(f), given the evidence's importance and the absence of surprise, prejudice, or a design to mislead. 

Under the speedy trial rule and statute, a case may be "complex" if it has "complicated evidence," but time is excludable only if the complexity makes it unreasonable to expect adequate preparation for trial in the speedy trial period. R. 3:5-4(i)(7); N.J.S.A. 2A:162-22(b)(1)(g). The provision addressing failures to produce discovery is a limit on excludable time. N.J.S.A. 2A:162-22(b)(2). The court properly excluded time sua sponte under N.J.S.A. 2A:162-22(b)(1)(c), and retained jurisdiction to do so after the State sought and obtained leave to appeal. That provision excludes the time while an emergent relief request, or interlocutory appeal, is pending in this court. Time while the trial is stayed is excludable under N.J.S.A. 2A:162-22(b)(1)(l). 

Monday, February 12, 2018

STATE OF NEW JERSEY VS. R.J.M. A-5306-15T1

STATE OF NEW JERSEY VS. R.J.M. 
A-5306-15T1 
The court construed N.J.R.E. 609(b), which addresses the admissibility, for impeachment purposes, of remote convictions, i.e., those over ten years old. The ten-year period is calculated from the date of the conviction or release from confinement for it, whichever is later. The court held that civil commitment, pursuant to the Sexually Violent Predator Act, is not "confinement for" a criminal conviction. Therefore, a period of civil commitment may not be excluded in calculating whether a conviction is more than ten years old. 

Defendant, a resident of the Special Treatment Unit (STU), was on trial for assaulting a corrections officer at the STU. Defendant had been convicted of a sexual assault in 1990, completed his sentence in 2000, and was then civilly committed to the STU. The trial court erred in determining that, due to defendant's ongoing civil commitment, his 1990 sexual assault conviction was not remote under N.J.R.E. 609(b). 

State v. Melvin T. Dickerson (A-1-17; 079769)


 State v. Melvin T. Dickerson (A-1-17; 079769) 

The affidavit supporting a search warrant disclosed in discovery need not be disclosed as a matter of course, and no particular circumstances necessitated disclosure of that affidavit here. To the extent that the trial court’s order of release served as a “sanction” for the State’s failure to meet what the court viewed to be the State’s discovery requirements, that release order was improper. 

Monday, February 05, 2018

STATE OF NEW JERSEY VS. WILLIAM T. LIEPE A-4431-14T4

STATE OF NEW JERSEY VS. WILLIAM T. LIEPE
          A-4431-14T4
Defendant was sentenced to consecutive prison terms of twenty, seven, and five years, for first-degree aggravated manslaughter and two counts of second-degree aggravated assault, resulting from his having caused, while intoxicated, an auto accident that killed a nine-year old and seriously injured two others.
In State v. Carey, 168 N.J. 413, 429 (2001), a divided Court determined that in multiple-victim vehicular-homicide matters, sentencing judges should "ordinarily" impose "at least two consecutive terms." The Court, however, also emphasized that it had not "adopt[ed] a per se rule" and the decision to impose
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consecutive terms remained in the discretion of sentencing judges. Id. at 419. In considering Carey's influence here, the court remanded for resentencing because, among other things, the sentencing judge appeared to have viewed Carey as imposing a presumption in favor of consecutive terms and because the judge did not fairly consider the real-time consequence of the aggregate thirty-two year sentence, all subject to an eighty-five percent period of parole ineligibility, imposed on an offender who was fifty-eight at the time of the incident and sixty-two at the time of sentencing. 

STATE OF NEW JERSEY VS. A.M. A-2090-13T2


STATE OF NEW JERSEY VS. A.M.
          A-2090-13T2
Defendant pled guilty to second degree sexual assault, N.J.S.A. 2C:14-2(c)(4), reserving his right to appeal the denial of his motion to suppress the inculpatory statement. This court reverses the trial court's order denying defendant's motion to suppress his inculpatory statement. The evidence presented by the State at the N.J.R.E. 104(c) hearing does not support the motion judge's findings that the State satisfied "the heavy burden" of proving, beyond a reasonable doubt, that defendant made a knowing, intelligent, and voluntary decision to waive his constitutional rights under Miranda. The motion judge's decision upholding the methods used by the interrogating detectives improperly shifted this burden of proof to defendant.
Judge Fuentes wrote a separate concurrence addressing the use of police officers as interpreters when interrogating a suspect who is limited English proficient. 

STATE OF NEW JERSEY VS. DAKEVIS A. STEWART A-0562-17T6

STATE OF NEW JERSEY VS. DAKEVIS A. STEWART
          A-0562-17T6
page4image18760 page4image18920 page4image19080

At a detention hearing held pursuant to the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to 2A:162-26 (the CJRA), the State proceeded by proffer. Defendant subpoenaed the police officer, who prepared the affidavit of probable cause as a witness, and sought to subpoena other officers. Over the State's objection, the judge entered an order that permitted defendant "to subpoena the [police] officers at the scene of the incident to testify at the [d]etention [h]earing." The court granted the State's motion for leave to appeal and reversed.
The CJRA provides that at a pretrial detention hearing, a "defendant has the right to be represented by counsel, and . . . shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." N.J.S.A. 2A:162- 19(e)(1) (emphasis added). However, federal courts interpreting the Bail Reform Act that contains similar language have recognized the defendant's right to produce adverse witnesses is conditional, not absolute.
The court adopts the reasoning of the majority of federal courts, which require a defendant make a proffer as to how the anticipated testimony of an adverse witness, i.e., police officers, victims, and State's witnesses, would 1) negate the State's evidence as to probable cause; or 2) rebut or diminish the State's proffered clear and convincing evidence supporting detention. 

State v. Melvin T. Dickerson (A-1-17; 079769)


State v. Melvin T. Dickerson (A-1-17; 079769)
          The affidavit supporting a search warrant disclosed in
          discovery need not be disclosed as a matter of course,
          and no particular circumstances necessitated disclosure
          of that affidavit here.  To the extent that the trial
          court’s order of release served as a “sanction” for the
          State’s failure to meet what the court viewed to be the
          State’s discovery requirements, that release order was
          improper.

State v. Tormu E. Prall (A-28-16; 078169)


State v. Tormu E. Prall (A-28-16; 078169)
          The court erred by allowing evidence that defendant
          threatened to burn down his girlfriend’s homes and by
          admitting John’s hearsay statements that defendant was
          responsible for the arson.  However, the errors were not
          capable of producing an unjust result because of the
          overwhelming weight and quality of the evidence against
          defendant.

State v. S.N. (A-60-16; 079320)


State v. S.N. (A-60-16; 079320)
          The proper standard of appellate review of pretrial
          detention decisions is whether the trial court abused
          its discretion by relying on an impermissible basis,
          by relying upon irrelevant or inappropriate factors,
          by failing to consider all relevant factors, or by
          making a clear error in judgment.  Here, the trial
          court abused its discretion.

Sunday, January 28, 2018

LIBERTARIANS FOR TRANSPARENT GOVERNMENT, ETC. VS. GOVERNMENT RECORDS COUNCIL, ET AL. A-5563-15T4


LIBERTARIANS FOR TRANSPARENT GOVERNMENT, ETC. VS.
          GOVERNMENT RECORDS COUNCIL, ET AL.
A-5563-15T4
In this appeal the court considers whether draft minutes prepared for a public body's approval and adoption must be provided in response to a request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The Government Records Council denied the Libertarians For Transparent Government's OPRA request for unapproved minutes, contending they were records exempted from disclosure under the Act as "advisory, consultative, or deliberative material."
As the exemption under OPRA has been construed to encompass the deliberative process privilege, the court evaluated the documents under the privilege's two-pronged test, and determined that the unapproved minutes were both pre-decisional and deliberative. Because draft minutes are a preliminary document subject to revision, they remain "deliberative material" and exempt from the disclosure requirements of OPRA until approved by the public body. 

COLLENEWRONKOVS.NEWJERSEYSOCIETYFORTHEPREVENTION OF CRUELTY TO ANIMALS A-1737-15T1

COLLENEWRONKOVS.NEWJERSEYSOCIETYFORTHEPREVENTION OF CRUELTY TO ANIMALS
A-1737-15T1
In this Open Public Records Act (OPRA) litigation, the court considers whether the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA) should be exempt from complying with OPRA requests because it does not receive public funds and, staffed only with volunteers, it lacks the monies and personnel to facilitate the requests.
Discovery revealed that the NJSCPA had a budget of over $300,000 consisting of private donations and monies collected from municipal fines and penalties assessed on violators of animal cruelty laws. The trial judge determined that the OPRA request was not burdensome; most of the information sought could be found in NJSPCA's tax returns and reports.
The court concluded that because the NJSPCA is a public agency that receives public funds and performs a traditional government function, it is subject to OPRA, and must comply with requests made under the Act. It is the province of the Legislature to
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exempt the agency from OPRA's mandate. The court affirmed the orders compelling NJSPCA to comply with the Act and awarding plaintiff counsel fees. 

STATE OF NEW JERSEY VS. A.M. A-2090-13T2


STATE OF NEW JERSEY VS. A.M.
          A-2090-13T2
Defendant pled guilty to second degree sexual assault, N.J.S.A. 2C:14-2(c)(4), reserving his right to appeal the denial of his motion to suppress the inculpatory statement. This court reverses the trial court's order denying defendant's motion to suppress his inculpatory statement. The evidence presented by the State at the N.J.R.E. 104(c) hearing does not support the motion judge's findings that the State satisfied "the heavy burden" of proving, beyond a reasonable doubt, that defendant made a knowing, intelligent, and voluntary decision to waive his constitutional rights under Miranda. The motion judge's decision upholding the methods used by the interrogating detectives improperly shifted this burden of proof to defendant.
Judge Fuentes wrote a separate concurrence addressing the use of police officers as interpreters when interrogating a suspect who is limited English proficient. 

STATE OF NEW JERSEY VS. DAKEVIS A. STEWART A-0562-17T6

STATE OF NEW JERSEY VS. DAKEVIS A. STEWART
          A-0562-17T6
At a detention hearing held pursuant to the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to 2A:162-26 (the CJRA), the State proceeded by proffer. Defendant subpoenaed the police officer, who prepared the affidavit of probable cause as a witness, and sought to subpoena other officers. Over the State's objection, the judge entered an order that permitted defendant "to subpoena the [police] officers at the scene of the incident to testify at the [d]etention [h]earing." The court granted the State's motion for leave to appeal and reversed.
The CJRA provides that at a pretrial detention hearing, a "defendant has the right to be represented by counsel, and . . . shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." N.J.S.A. 2A:162- 19(e)(1) (emphasis added). However, federal courts interpreting the Bail Reform Act that contains similar language have recognized the defendant's right to produce adverse witnesses is conditional, not absolute.
page2image1260945760 page2image1260946032

The court adopts the reasoning of the majority of federal courts, which require a defendant make a proffer as to how the anticipated testimony of an adverse witness, i.e., police officers, victims, and State's witnesses, would 1) negate the State's evidence as to probable cause; or 2) rebut or diminish the State's proffered clear and convincing evidence supporting detention. 

 State v. Karlton L. Bailey (A-96-15; 077141)
          Because the State never proved an essential element of
          the certain persons charge to the jury, defendant’s
          conviction cannot stand.  State v. Karlton L. Bailey (A-96-15) (077141)
Argued September 12, 2017 -- Decided January 22, 2018

TIMPONE, J., writing for the Court.

        The Court considers the propriety of defendant’s conviction under the Certain Persons Not to Have
Weapons Statute, 
N.J.S.A. 2C:39-7, when the redacted evidence prevented the jury from confirming that
defendant’s prior conviction was indeed an enumerated offense under the statute.

         Carlos Guerrero and Alex Mejia were walking in New Brunswick after a night of drinking. A video
surveillance camera captured defendant Karlton Bailey approaching Guerrero from behind and putting his hand in
Guerrero’s back pocket. Mejia responded by running across the street to confront defendant. The conflict quickly
turned violent. Upon seeing defendant draw a gun, Mejia held his hands up in the air and backed away. Defendant
followed Mejia into the street, struck him in the face, searched his pockets, and fled the scene.

         A Middlesex County Grand Jury returned an indictment (Indictment 1650) against defendant, charging him
with second-degree possession of a firearm by certain persons not to possess a firearm, 
N.J.S.A. 2C:39-7(b). A
second indictment (Indictment 1317) charged defendant with robbery, assault, and weapons offenses.

          In February 2013, a jury found defendant guilty on all counts of Indictment 1317. A separate jury trial on
the certain persons indictment immediately followed. At that trial, defendant did not stipulate to the predicate
convictions that prohibited him from possessing a firearm. The parties agreed that evidence of defendant’s prior
convictions would be sanitized, that is, “redacted except for the date and the degree of the offense.” The trial court
properly advised the jury that they “must disregard [their] prior verdict, and consider anew the evidence previously
admitted on possession of a weapon.”

         The State produced testimony from Investigator David Carmen, who identified two separate judgments of
conviction. The predicate offenses were a 1994 conviction for third-degree possession of a controlled dangerous
substance with the intent to distribute and a 2006 conviction for third-degree aggravated assault. The trial court,
relying on State v. Brown, 
180 N.J. 572, 585 (2004), and footnote five of the model jury charge for certain persons
offenses, determined that the judgments of conviction needed to be redacted so as to include only the date and
degree of each offense.

         The trial court instructed the jury on the elements of the certain persons offense. The judge explained that
to convict defendant, the jury must find that defendant possessed a firearm and that “defendant is the person who . . .
previously has been convicted of third-degree crimes.” The trial court further advised the jury that it could use the
evidence of defendant’s prior crimes only for the limited purpose of establishing the prior-conviction element of the
certain persons offense, not to decide that defendant has a propensity to commit crime. The jury convicted
defendant of the certain persons charge.

         Defendant appealed, and the Appellate Division affirmed. The panel found the procedure used and the trial
court’s charge, based upon the model jury charge, disquieting. The panel questioned the continuing use of the
model charge, but nonetheless determined that any error was invited. The panel concluded that no injustice occurred
as the State was ready and able to introduce evidence of defendant’s prior convictions but redacted them on defense
counsel’s request. The Court granted defendant’s petition for certification. 
227 N.J. 144 (2016).

HELD: Because the State never proved an essential element of the certain persons charge to the jury, defendant’s
conviction cannot stand.


                                                           1
 1. In a criminal prosecution in which the accused has a constitutional right to a trial by jury, each element of the crime
must be decided by the jury. Because 
N.J.S.A. 2C:39-7(b)(1) requires proof of a specific prior conviction, a certain
persons charge entails a risk of prejudice to a defendant in a jury trial. In State v. Ragland, the Court held that when a
defendant is charged with an additional crime beyond the certain persons offense, the trial must be bifurcated. 
105 N.J. 189, 193 (1986). A bifurcated proceeding is necessary “since proof that defendant was a convicted felon (required in
the trial of the [certain persons] charge) clearly tends to prejudice the jury in considering the [additional charge].” Ibid.
Critically, “the defendant is entitled to the presumption of innocence and, as a consequence of that, to an instruction that
each and every material fact that makes up the crime . . . must be proven . . . beyond a reasonable doubt.” Id. at 195. In
Old Chief v. United States, the United States Supreme Court held that when a defendant stipulates to a predicate
conviction, “[t]he most the jury needs to know is that the conviction . . . falls within the class of crimes that Congress
thought should bar a convict from possessing a gun.” 
519 U.S. 172, 190-91 (1997). (pp. 11-16)

2. In Brown, the Court declined to extend Ragland to cases in which the State proceeds only on a certain persons
offense. 
180 N.J. at 582. The Court held “that the elements of an offense should be tried in a unitary trial in which
prejudice is minimized by appropriate curative jury instructions.” Ibid. In dicta, the Court added that “if [a]
defendant stipulates to the offense, the jury need be instructed only that defendant was convicted of a predicate
offense. If the defendant does not stipulate, then the trial court should sanitize the offense or offenses and limit the
evidence to the date of the judgment.” Id. at 585. In the wake of Brown, the model jury charge for Certain Persons
Not to Have a Weapon was modified to reflect the Court’s statement about sanitization. The portion of the model
jury charge pertaining to a defendant who does not stipulate to a predicate offense instructs that “[t]he third element
the State must prove beyond a reasonable doubt is that defendant is a person who previously has been convicted of
the crime(s) of the ______ degree.” (pp. 16-18)

3. The dicta in Brown, as incorporated into the model jury charge, requires that the predicate-conviction evidence
be sanitized to such degree that the evidence be no more informative than a stipulation. Such over-sanitization is
problematic. In a certain persons trial, the State must prove that the defendant was convicted of an enumerated
predicate offense and later possessed a firearm. Each element must be proved beyond a reasonable doubt. By
preventing the State from providing the jury with evidence that the prior conviction was for a predicate offense—as
opposed to another offense that does not lead to a weapons bar—the model charge prevents a jury from finding
beyond a reasonable doubt a required element of the certain persons offense—a constitutional infirmity. (pp. 19-20)

4. Here, the State’s proofs at trial consisted of testimony only that defendant was convicted of third-degree offenses.
Many third-degree offenses are not among the predicate offenses for a certain persons conviction. All parties knew
that the predicate conviction on which the State sought to rely was for a crime sufficient to trigger criminal liability
under the certain persons statute. The jury did not and could not have made a finding on that issue. (pp. 20-21)

5. The invited error doctrine acknowledges the common-sense notion that a disappointed litigant cannot argue on
appeal that a prior ruling was erroneous when that party urged the lower court to adopt the proposition now alleged
to be error. Here, defendant asked the trial court to comply with the model jury charge based on the Court’s dicta in
Brown. This is not the sort of gamesmanship-driven scenario to which the invited error doctrine is traditionally
applied. The Court does not apply it here because the error cut mortally into defendant’s due process right to have
the jury decide each element beyond a reasonable doubt. (pp. 21-22)

6. A certain persons conviction cannot stand without proof that a defendant has been previously convicted of an
offense specifically enumerated in the certain persons statute. When a defendant refuses to stipulate to a predicate
offense under the certain persons statute, the State shall produce evidence of the predicate offense: the judgment of
conviction with the unredacted nature of the offense, the degree of offense, and the date of conviction. To the extent
that Brown mentioned in dicta that, in cases where the defendant does not stipulate, all that is required is the date of
the judgment, 
180 N.J. at 585, the Court now clarifies that point. The Court refers this case to the Committee on
Model Criminal Jury Charges so that it may revise the certain persons charge accordingly.

Sunday, January 21, 2018

G.M. VS. C.V. A-4820-15T4

G.M. VS. C.V. 
A-4820-15T4 

This appeal requires the court to determine the procedures that should be followed by the Family Part where a person, restrained by a final restraining order (FRO) entered under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, requests to modify or dissolve the FRO, but the transcript of the FRO hearing is not available through no fault of the defendant. We hold that due process requires the Family Part judge to reconstruct the record if the court cannot assess whether to deny the application or is otherwise satisfied that the record before it presents a prima facie showing of changed circumstances. We reverse and remand to the Family Part for proceedings consistent with this opinion. 

State v. Alexis Sanchez-Medina (A-10-16) (077883)

 State v. Alexis Sanchez-Medina (A-10-16) (077883)

Argued October 10, 2017 -- Decided January 18, 2018

RABNER, C.J., writing for the Court.

         The Court considers whether defendant was denied his right to a fair trial on sexual assault charges. First,
the prosecution asked defendant whether he had come to the United States legally. Over an objection, the jury
learned that defendant had not. Second, although the allegations related to different incidents that involved four
separate victims, the case rested heavily on an identification by a single witness. Despite that, neither party
requested a jury charge on eyewitness identification, and the trial court did not instruct the jury on the subject.

         A jury convicted defendant Alexis Sanchez-Medina of various sexual-assault crimes that involved four
separate victims: R.D., D.J., A.M., and A.B.

         (1) On July 27, 2012, in Englewood, a man on a bicycle approached R.D. from behind, tried to push her,
and grabbed her buttocks. R.D. described her assailant as a Hispanic male with a ponytail. R.D. was the only
witness to identify defendant. She selected his picture out of an array of six photographs. R.D. also identified
defendant in court. (2) D.J. was inside her basement apartment in Englewood on August 9, 2012, at about 11:00
p.m., when she noticed the window air conditioner unit move. She went outside to investigate but did not see
anyone. As D.J. walked back to her apartment, someone pinned her down. The attacker reached down her pants
and inside her underwear, then got up and ran away. D.J. admitted that she did not get a good look at the attacker.
She described him as a light-skinned African American or Hispanic male who wore his curly black hair in a
ponytail. (3) At about 10:00 p.m. on August 10, 2012, A.M. was walking in Dumont. She saw a “shadow of a guy”
approach her from behind. The man grabbed both of her arms from behind and gripped them tightly. He eventually
released her and ran away. A.M. did not see her attacker’s face. She said he appeared to be about 5’3” to 5’7” in
height, had a medium build, and had short dark hair. She noted that he wore a sweatshirt and cargo pants. (4)
About twenty minutes after the prior incident, A.B. was assaulted in Dumont. A man charged at A.B. from behind,
forced her to the ground, and put his fingers up her shorts and inside her vagina. A.B. screamed and tried to push
the attacker off of her, and he ran away. A.B. never saw the man’s face. As he ran, she saw the back of his head
and his silhouette. She did not describe him other than to note that he wore dark shorts and a dark shirt.

        As part of an investigation into the attacks, the police detained defendant, who repeatedly denied any
involvement in the attacks. He also made certain admissions.

         All four victims testified at trial and relayed the above details. Defendant testified as well. He denied that
he had ever seen any of the victims or done anything to them. His defense was misidentification.

        The prosecution began its cross-examination of defendant with this question: “You’re from Honduras,
right?” After defendant said “yes,” the prosecution asked, “And you didn’t come into the United States legally?”
Defense counsel objected, and the trial judge overruled the objection. Defendant then confirmed that he had not
“come into this country legally.” The judge gave conflicting limiting instructions about that evidence. In addition,
although R.D.’s identification of defendant was central to the case, neither party asked the judge to instruct the jury
on how to evaluate the evidence. The court did not instruct the jury specifically on that point on its own.

          On appeal, the State acknowledged that the prosecution should not have elicited testimony about
defendant’s immigration status. The panel found that defendant was not prejudiced by the testimony in light of the
trial court’s limiting instructions. The Appellate Division also found that the trial court should have charged the jury
on identification. The panel, though, concluded that the omission did not constitute plain error in light of the strong
evidence that corroborated R.D.’s identification, specifically, defendant’s statement.

                                                           1
           The Court granted defendant’s petition for certification limited to the following issues: the admissibility of
defendant’s immigration status for impeachment purposes; and the trial court’s failure to instruct the jury on
identification. 
228 N.J. 57 (2016).

HELD: The cumulative effect of both errors denied defendant his right to a fair trial.

1. The State rightly concedes that it was improper to question defendant about his immigration status. As a general
rule, that type of evidence should not be presented to a jury. To be admissible at trial, evidence must be relevant.
N.J.R.E. 401. Whether a defendant entered the country legally tells a jury nothing about whether he committed an act
of sexual assault. Even if relevant, “evidence may be excluded if its probative value is substantially outweighed by the
risk of . . . undue prejudice, confusion of issues, or misleading the jury.” N.J.R.E. 403. Both today and in late 2013
when this trial took place, evidence of a defendant’s undocumented immigration status could appeal to prejudice,
inflame certain jurors, and distract them from their proper role in the justice system: to evaluate relevant evidence fairly
and objectively. A defendant’s immigration status is not proof of character or reputation that can be admitted under
Rules 404 or 608. Proof of status alone is also not evidence of a prior criminal conviction. See N.J.R.E. 609. Nor is a
person’s immigration status admissible as a prior bad act under Rule 404(b). (pp. 13-17)

2. In this case, the error was significant. The prosecution’s first questions on cross-examination focused on defendant’s
status and set the tone for what followed. To compound the error, the trial court issued conflicting instructions about
whether jurors could consider the evidence to determine whether defendant “follows the rules of society.” Without a
clear instruction to disregard the evidence entirely, we cannot be certain whether and how the jury might have relied
upon it during deliberations. (pp. 17-18)

3. The State also appropriately recognizes that the failure to instruct the jury on identification evidence was an error.
R.D.’s identification of defendant was central to this case. She was the sole witness to identify defendant, and his
defense at trial was misidentification. When eyewitness identification is a “key issue,” the trial court must instruct
the jury how to assess the evidence—even if defendant does not request the charge. State v. Cotto, 
182 N.J. 316,
325 (2005). The jury in this case should have been instructed about some of the factors discussed in State v.
Henderson, 
208 N.J. 208 (2011). At a charge conference, the parties and the court should have considered whether
charges on memory decay, confidence, stress, duration, lighting, and other factors were warranted. To be sure, the
judge should have given the charge on his own because R.D.’s identification was a “key issue.” But counsel for the
State and the defense are very much a part of the trial process as well. It is imperative that both sides carefully
evaluate and propose relevant jury instructions before and during trial, rather than after a verdict. (pp. 18-21)

4. Defendant’s convictions rest largely on the testimony of four victims, only one of whom could identify him. No
forensic evidence linked defendant to the crimes charged, and no other witnesses observed or could corroborate any
of the incidents. The witnesses’ descriptions of their assailants varied. In addition, although the assaults shared
some similarities, they differed from one another in key ways. The assaults were not “signature” crimes that, on
their own, suggest the same person carried out each attack. Defendant’s statement to the police, which he recanted
at trial, offers some corroboration. Yet he also denied the core of the accusations during the interview. Looking at
all of the proofs together, the evidence against defendant was not overwhelming, as the State suggests. (pp. 21-23)

5. Even if an individual error does not require reversal, the cumulative effect of a series of errors can cast doubt on a
verdict and call for a new trial. Here, the jury received no guidance about how to assess the single identification of
defendant—a critical issue at trial that defendant disputed. And the jurors were not told to ignore provocative
evidence about defendant’s immigration status. Together, those errors undermined defendant’s right to a fair trial.
They raise serious questions about whether the outcome was just, particularly in light of the strength of the evidence
presented. See R. 2:10-2. The Court therefore has no choice other than to vacate defendant’s convictions. (p. 23)

Thursday, January 18, 2018

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

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

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

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

Sunday, December 31, 2017

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

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

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