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

Saturday, December 22, 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER December 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER December 2007
ABA General Practice, Solo and Small Firm Division American Bar Association

Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ

In this Issue:
1. U.S. Supreme Court, December 10, 2007 
Gall v. US, No. 06-7949
2 Watson v. US, No. 06–571
3. Kimbrough v. US, No. 06-6330 U.S. Supreme Court, December 10, 2007

4. Season's greetings from Kenneth Vercammen, Esq., his family and Frizby the dog.
5. More Criminal articles and forms added to website
http://benotguilty.com/

____________________________________________________

1. U.S. Supreme Court, December 10, 2007 
Gall v. US, No. 06-7949

In reviewing the reasonableness of sentences imposed by district judges, while the extent of the difference between a particular sentence and the recommended Sentencing Guidelines range is relevant, courts of appeals must review all sentences whether inside, just outside, or significantly outside the Guidelines range, under a deferential abuse-of-discretion standard
SUPREME COURT OF THE UNITED STATES
GALL v. UNITED STATES
certiorari to the united states court of appeals for the eighth circuit

No. 06–7949. Argued October 2, 2007—Decided December 10, 2007

Petitioner Gall joined an ongoing enterprise distributing the controlled substance “ecstasy” while in college, but withdrew from the conspiracy after seven months, has sold no illegal drugs since, and has used no illegal drugs and worked steadily since graduation. Three and half years after withdrawing from the conspiracy, Gall pleaded guilty to his participation. A presentence report recommended a sentence of 30 to 37 months in prison, but the District Court sentenced Gall to 36 months’ probation, finding that probation reflected the seriousness of his offense and that imprisonment was unnecessary because his voluntary withdrawal from the conspiracy and post offense conduct showed that he would not return to criminal behavior and was not a danger to society. The Eighth Circuit reversed on the ground that a sentence outside the Federal Sentencing Guidelines range must be—and was not in this case—supported by extraordinary circumstances.
Held:
1. While the extent of the difference between a particular sentence and the recommended Guidelines range is relevant, courts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard. Pp. 7–14.
(a) Because the Guidelines are now advisory, appellate review of sentencing decisions is limited to determining whether they are “reasonable,” United States v. Booker, 543 U. S. 220 , and an abuse-of-discretion standard applies to appellate review of sentencing decisions. A district judge must consider the extent of any departure from the Guidelines and must explain the appropriateness of an unusually lenient or harsh sentence with sufficient justifications. An appellate court may take the degree of variance into account and consider the extent of a deviation from the Guidelines, but it may not require “extraordinary” circumstances or employ a rigid mathematical formula using a departure’s percentage as the standard for determining the strength of the justification required for a specific sentence. Such approaches come too close to creating an impermissible unreasonableness presumption for sentences outside the Guidelines range. The mathematical approach also suffers from infirmities of application. And both approaches reflect a practice of applying a heightened standard of review to sentences outside the Guidelines range, which is inconsistent with the rule that the abuse-of-discretion standard applies to appellate review of all sentencing decisions—whether inside or outside that range. Pp. 7–10.
(b) A district court should begin by correctly calculating the applicable Guidelines range. The Guidelines are the starting point and initial benchmark but are not the only consideration. After permitting both parties to argue for a particular sentence, the judge should consider all of 18 U. S. C. §3353(a)’s factors to determine whether they support either party’s proposal. He may not presume that the Guidelines range is reasonable but must make an individualized assessment based on the facts presented. If he decides on an outside-the-Guidelines sentence, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variation. He must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. In reviewing the sentence, the appellate court must first ensure that the district court made no significant procedural errors and then consider the sentence’s substantive reasonableness under an abuse-of-discretion standard, taking into account the totality of the circumstances, including the extent of a variance from the Guidelines range, but must give due deference to the district court’s decision that the §3553(a) factors justify the variance. That the appellate court might have reasonably reached a different conclusion does not justify reversal. Pp. 11–14.
2. On abuse-of-discretion review, the Eighth Circuit failed to give due deference to the District Court’s reasoned and reasonable sentencing decision. Since the District Court committed no procedural error, the only question for the Circuit was whether the sentence was reasonable, i.e., whether the District Judge abused his discretion in determining that the §3553(a) factors supported the sentence and justified a substantial deviation from the Guidelines range. The Circuit gave virtually no deference to the District Court’s decision that the variance was justified. The Circuit clearly disagreed with the District Court’s decision, but it was not for the Circuit to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. Pp. 14–21.

2 Watson v. US, No. 06–571 U.S. Supreme Court, December 10, 2007


In the context of criminal sentencing, a person who trades his drugs for a gun does not "use" a firearm "during and in relation to . . . [a] drug trafficking crime" within the meaning of 18 U.S.C. section 924(c)(1)(A).
After trading a controlled substance for a pistol, petitioner Watson was indicted for, inter alia, violating 18 U. S. C. §924(c)(1)(A), which sets a mandatory minimum sentence, depending on the facts, for a defendant who, “during and in relation to any … drug trafficking crime[,] … uses … a firearm.” The statute does not define “uses,” but this Court has spoken to it twice. In holding that “a criminal who trades his firearm for drugs ‘uses’ it … within the meaning of §924(c)(1),” Smith v. United States, 508 U. S. 223 , the Court rested primarily on the “ordinary or natural meaning” of the verb in context, id., at 228, understanding its common range as going beyond employment as a weapon to trading a weapon for drugs, id., at 230. Later, in holding that merely possessing a firearm kept near the scene of drug trafficking is not “use” under §924(c)(1), the Court, in Bailey v. United States, 516 U. S. 137 , again looked to “ordinary or natural” meaning, id., at 145, deciding that “§924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense,” id., at 143. Watson pleaded guilty but reserved the right to challenge the factual basis for a §924(c)(1)(A) conviction and sentence. The Fifth Circuit affirmed on its precedent foreclosing any argument that Watson had not “used” a firearm.
Held: A person does not “use” a firearm under 18 U. S. C. §924(c)(1)(A) when he receives it in trade for drugs. Pp. 4–9.
(a) The Government’s position lacks authority in either precedent or regular English. Neither Smith, which addressed only the trader who swaps his gun for drugs, not the trading partner who ends up with the gun, nor Bailey, which ruled that a gun must be made use of actively to satisfy §924(c)(1)(A), decides this case. With no statutory definition, the meaning of “uses” has to turn on “everyday meaning” revealed in phraseology that strikes the ear as “both reasonable and normal.” Smith, supra, 228, 230. When Watson handed over the drugs for the pistol, the officer “used” the pistol to get the drugs, but regular speech would not say that Watson himself used the pistol in the trade. Pp. 4–5.
(b) The Government’s first effort to trump ordinary English is rejected. Noting that §924(d)(1) authorizes seizure and forfeiture of firearms “intended to be used in” certain crimes, the Government infers that since some of those offenses involve receipt of a firearm, “use” necessarily includes receipt of a gun even in a barter transaction. The Government’s reliance on Smith for the proposition that the term must be given the same meaning in both subsections overreads Smith. The common verb “use” is not at odds in the two subsections but speaks to different issues in different voices and at different levels of specificity. Section 924(d)(1) indicates that a gun can be “used” in a receipt crime, but does not say whether both parties to a transfer use the gun, or only one, or which one; however, §924(c)(1)(A) requires just such a specific identification. Pp. 5–7.
(c) Nor is the Government’s second effort to trump ordinary English persuasive. It claims that failing to treat receipt in trade as “use” would create unacceptable asymmetry with Smith; i.e., it would be strange to penalize one side of a gun-for-drugs exchange but not the other. The problem is not with Smith, however, but with the limited malleability of the language it construed, and policy-driven symmetry cannot turn “receipt-in-trade” into “use.” Whatever the tension between the prior result and the outcome here, law depends on respect for language and would be served better by statutory amendment than by racking statutory language to cover a policy it fails to reach. Pp. 8–9.


3. Kimbrough v. US, No. 06-6330 U.S. Supreme Court, December 10, 2007

Under United States v. Booker, 543 U. S. 220 , the cocaine Guidelines, like all other Guidelines, are advisory only, and the Fourth Circuit erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration, but the judge may determine that, in the particular case, a within-Guidelines sentence is “greater than necessary” to serve the objectives of sentencing, §3553(a). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder offenses

4. Season's greetings from Kenneth Vercammen, Esq., his family and Frizby the dog.
See photo http://www.njlaws.com/vercammen_family_2007.htm
One of the pleasures of this holiday season is the opportunity it gives to thank many people for their friendship, goodwill and the very pleasant association we enjoy. We sincerely appreciate this relationship and are thankful for the confidence many people have shown in us. We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
In the true spirit of the season, may we all be thankful and share in the hope for peace on earth and goodwill toward our fellow man.
May the new year bring happiness and good health to you and those you love.

More Holiday cheer at this great site:
http://holidays.blastcomm.com/


HAPPY HOLIDAYS & SEASON'S GREETINGS WORLDWIDE:
Wesoly Siat, Bozega Narodzenia [Merry Christmas in Polish}
FROHE
WEIHNACHTEN
PRÓSPERO AÑO NUEVO
HAPPY NEW YEAR
FRIEDEN
GLÜCKLICHES NEUES JAHR
JOYEUX NOËL
PRETTIGE
KERSTDAGEN
GELUKKIG
NIEUWJAAR
BUON
NATALE
BONNIE ANNEE
HYVÄÄ JOULUA

5. More Criminal articles and forms added to website
http://benotguilty.com/
Marijuana
Traffic fines, points, jail
Possession of drugs with Intent to Distribute Drugs
Assault
Driving While Intoxicated
Unlawful possession of weapons
Terrorist Threats
Shoplifting
Sentencing
Theft of Movable Property
NJ Municipal Court and Criminal Interview
Traffic Court Interview Form


WE PUBLISH YOUR FORMS AND ARTICLES
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Articles needed for American Bar Association Criminal Law Committee. Criminal Forms and articles sought plus tips on marketing and improving service to clients. Kenneth Vercammen of Edison serves as the Editor. Please email articles, suggestions or ideas you wish to share with others in the Criminal Law Committee. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. The ABA is increasing the frequency of publication of their email newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author.

Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com

Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com

Sunday, December 02, 2007

State v. Thomas Lykes

11-5-07 (A-80-06)

Because Lykes placed his knowledge as to the contents of the
four vials directly at issue, N.J.R.E. 404(b) does not bar the
limited impeachment use of Lykes’ admission of having earlier
held cocaine vials and the questions allowed in this area were
proper. Furthermore, taken as a whole, the trial court’s
response to the jury’s question in respect of Lykes’ knowledge
as to the contents of the vials fairly and adequately instructed
the jury and, therefore, was improper.

State v. Howard Parks

10-25-07 (A-39-06)

The amended Three Strikes Law applies to defendant’s sentencing.
Because defendant “committed” only one predicate offense prior
to the subject offense, he did not qualify for enhanced
sentencing under the Three Strikes Law.

State v. A.O.

11-27-07 A-5388-04T4

Defendant was convicted of aggravated sexual assault based
on the uncorroborated testimony of a child witness who had
recanted her accusation and then withdrawn the recantation.
Prior to his arrest, defendant entered into a polygraph
stipulation without advice of counsel. He failed the test, and
the test result was admitted at his trial. We reversed his
conviction, holding that inducing an uncounseled defendant to
sign a stipulation agreeing that polygraph results will be
admissible at trial, violates the defendant's Sixth Amendment
right to trial counsel. We also held that the trial court
should have held a State v. Guenther hearing before barring
defendant from introducing evidence that a few months after
accusing defendant, the victim-witness accused another man of
molesting her and then recanted her accusation. We concluded
Guenther applies to later, as well as prior, recanted
accusations. Judge Weissbard filed a concurring opinion.

State of New Jersey v. Gary Gaither, a/k/a Gary W. Gaither

11-16-07 A-3063-05T4

Defendant appealed an order denying his petition for postconviction
relief (PCR) alleging ineffective assistance of
appellate counsel. Defendant argued that his appellate
counsel's failure to communicate with him regarding his appeal
constituted ineffective assistance of counsel per se. Secondly,
defendant sought to extend the holding in State v. Rue, 175 N.J.
1 (2002), to appellate counsel. In Rue, the Supreme Court held
that an attorney representing a defendant in a PCR petition is
required to communicate with his client, investigate the
client's claim, and advance all arguments requested by the
client.

We held that the two-prong Strickland analysis is to be
used in such cases and, therefore, that the failure to
communicate is not per se ineffective assistance of counsel. We
also declined to apply Rue to appellate counsel, finding it was
inappropriate and unnecessary.

State v. Marcus Cassady

10-26-07 A-6057-05T4

A jury found defendant guilty of robbery. Rejecting
defense counsel's claim that the jury could conclude that
defendant did not have the requisite purpose to put the bank
teller in fear of immediate bodily injury, the trial court
denied defendant's request for a jury instruction on theft.
Although the evidence was adequate to support defendant's
conviction for robbery, it also provided a rational basis for an
acquittal on that charge and conviction of theft. Accordingly,
we reverse.

Judge Fuentes is filing a dissent.

State v. Michele Dixon

10-24-07 A-2419-04T4

For purposes of the bias intimidation statute, N.J.S.A.
2C:16-1, the term "handicap" should be defined with reference to
the Law Against Discrimination, N.J.S.A. 10:5-5q, rather than by
using a dictionary definition of the term.

ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007
ABA General Practice, Solo and Small Firm Division American Bar Association

Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ

In this Issue:
1. Hearsay Not Admissible at Trial based on Crawford Decision
2. Consequences of a Criminal Guilty Plea in Superior Court
____________________________________________________


1. Hearsay Not Admissible at Trial based on Crawford Decision
By Kenneth Vercammen, Esq.

Prior to 2004, in Municipal Court and criminal cases, statements and documents could often be introduced into evidence over defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination.

In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. 
 The Court held that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
In Crawford: “the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.

The US Supreme Court in 2006 next had the opportunity to determine hearsay issues when the court was petitioned to decide if 911 calls are admissible if the witness will not come to court.

In Davis v. Washington 126 S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not Hearsay. The Court elaborated on the meaning of testimonial:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]

The New Jersey Appellate Division on March 6, 2006 had previously determined that an Eyewitness 911 Call to Report Attack Admissible as an Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)

In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).

Certification has been granted by the NJ Supreme Court in the J.A. case. The New Jersey Supreme Court is hearing several other appeals on the Crawford admissibility issue.

In State v Buda 389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis Ed. 2d 224 (2006). Certification to the NJ Supreme Court was also granted on May 21, 2007.

Under Caselaw decided in 1985, a lab certificate was admitted in DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
In State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Required in DWI Blood Case if an objection is filed by the defense.
Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.

The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test.
 Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.
Certification has been granted in Berezansky.

The next major case to examine the Crawford case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.

Another case where the Court Ruled that Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.

The court reaffirmed the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.
The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.

However, Defendant's DWI conviction in Renshaw was affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.

In DWI breathalyzer cases, for decades DWI breathalyzer certificates were admitted as an exception to Hearsay Rules. Based on Crawford, the Appellate Division revisited the admissibility of these paper certificates. In State v. Dorman, 393 NJ Super. 28 (App. Div. 2007) the court held Hearsay Rules do not apply to Breathalyzer certs. In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).

The NJ Supreme Court also granted Certification in unreported cases on the same issue, State v. Sweet, A-0091-05. In Sweet, the Breathalyzer Inspection Certification were also found to be admissible outside of Crawford.

Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar
Association, New Jersey State Bar Association and Middlesex County Bar Association.

He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 12 years.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He has
appeared in Courts throughout New Jersey several times each week on personal injury matters, Municipal Court trials, and contested Probate hearings.

2. Consequences of a Criminal Guilty Plea in Lower criminal courts Court
Some individuals don’t want to spend money to hire an attorney, but instead just plead guilty at their initial court appearance. They should read the following before representing themselves:
1 If you plead guilty you will have a criminal record
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
4. On employment applications, you will have to answer yes that you were convicted of a criminal offense.
5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty in many states.
6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation in many states.
7 In many drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
8. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing in many states.
9. You must pay restitution if the court finds there is a victim who has suffered a loss.
10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

WE PUBLISH YOUR FORMS AND ARTICLES
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Articles needed for American Bar Association Criminal Law Committee. Criminal Forms and articles sought plus tips on marketing and improving service to clients. Kenneth Vercammen of Edison serves as the Editor. Please email articles, suggestions or ideas you wish to share with others in the Criminal Law Committee. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. The ABA is increasing the frequency of publication of their email newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author.

Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com

Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com

Sunday, November 25, 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007
ABA General Practice, Solo and Small Firm Division American Bar Association

Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ

In this Issue:
1. Hearsay Not Admissible at Trial based on Crawford Decision
2. Consequences of a Criminal Guilty Plea in Superior Court
____________________________________________________


1. Hearsay Not Admissible at Trial based on Crawford Decision
By Kenneth Vercammen, Esq.

Prior to 2004, in Municipal Court and criminal cases, statements and documents could often be introduced into evidence over defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination.

In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. 
 The Court held that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
In Crawford: “the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.

The US Supreme Court in 2006 next had the opportunity to determine hearsay issues when the court was petitioned to decide if 911 calls are admissible if the witness will not come to court.

In Davis v. Washington 126 S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not Hearsay. The Court elaborated on the meaning of testimonial:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]

The New Jersey Appellate Division on March 6, 2006 had previously determined that an Eyewitness 911 Call to Report Attack Admissible as an Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)

In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).

Certification has been granted by the NJ Supreme Court in the J.A. case. The New Jersey Supreme Court is hearing several other appeals on the Crawford admissibility issue.

In State v Buda 389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis Ed. 2d 224 (2006). Certification to the NJ Supreme Court was also granted on May 21, 2007.

Under Caselaw decided in 1985, a lab certificate was admitted in DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
In State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Required in DWI Blood Case if an objection is filed by the defense.
Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.

The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test.
 Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.
Certification has been granted in Berezansky.

The next major case to examine the Crawford case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.

Another case where the Court Ruled that Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.

The court reaffirmed the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.
The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.

However, Defendant's DWI conviction in Renshaw was affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.

In DWI breathalyzer cases, for decades DWI breathalyzer certificates were admitted as an exception to Hearsay Rules. Based on Crawford, the Appellate Division revisited the admissibility of these paper certificates. In State v. Dorman, 393 NJ Super. 28 (App. Div. 2007) the court held Hearsay Rules do not apply to Breathalyzer certs. In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).

The NJ Supreme Court also granted Certification in unreported cases on the same issue, State v. Sweet, A-0091-05. In Sweet, the Breathalyzer Inspection Certification were also found to be admissible outside of Crawford.

Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar
Association, New Jersey State Bar Association and Middlesex County Bar Association.

He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 12 years.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He has
appeared in Courts throughout New Jersey several times each week on personal injury matters, Municipal Court trials, and contested Probate hearings.

2. Consequences of a Criminal Guilty Plea in Lower criminal courts Court
Some individuals don’t want to spend money to hire an attorney, but instead just plead guilty at their initial court appearance. They should read the following before representing themselves:
1 If you plead guilty you will have a criminal record
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
4. On employment applications, you will have to answer yes that you were convicted of a criminal offense.
5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty in many states.
6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation in many states.
7 In many drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
8. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing in many states.
9. You must pay restitution if the court finds there is a victim who has suffered a loss.
10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.


The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com

Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com

Monday, October 22, 2007

State v. Jessie D. Chambers

10-15-07* A-6180-04T4

Under N.J.S.A. 2C:35-7.1, the crime of possession of a
CDS with the intent to distribute is elevated from a thirddegree
crime to a second-degree crime if the offense is
committed within 500 feet of a public building. In this
opinion, we conclude that a museum qualifies as a public
building even if it does not maintain regular hours and is only
open to the public upon request.(*Approved for Publication date)

State v. Jeffrey Bendix

10-11-07 A-6508-05T3

We concluded that the trial court took too restrictive a
view of the court's discretion, under N.J.S.A. 2C:35-16a, to
grant defendant a hardship exception from the requirement that
his driver's license be suspended due to his conviction for drug
offenses. In remanding for a new hearing on the exception
issue, we provided guidance as to the proper procedures for
conducting the hearing. Defense counsel should present his
client's application through formal witness testimony, and the
State's opposition should likewise be presented through
testimony rather than representations of counsel. (*Approved for
Publication date)

State v. Eric Rowland

10-11-07 A-4383-06T5

The Contractors' Registration Act, N.J.S.A. 56:8-136 to -
152, includes provisions under which knowingly engaging in the
business of making or selling home improvements without having
registered with the Division of Consumer Affairs is a fourth
degree crime. Although the Act states that "a person who
knowingly violates any of the provisions of this act is guilty
of a crime of the fourth degree," the underlined phrase does not
mean that the State must prove defendant knew about the Act and
its provisions. In short, when used in a statute, the
underlined phrase does not make knowledge of the law an element
of the crime.

State v. Kevin Johnson

10-11-07 A-4544-05T4

In this appeal we examine the consequences of a sentencing
court's failure to notify a defendant of his right to appeal
within forty-five days, when the sentence was imposed prior to
the New Jersey Supreme Court's opinion in State v. Molina, 187
N.J. 531 (2006). In Molina, the Court made prospective its
holding that such a defendant had five years from the date of
sentencing to move for leave to appeal as within time.

State v. David L. Moon, a/k/a David L.

10-09-07
This case requires us to consider the elements of
endangering an injured victim, N.J.S.A. 2C:12-1.2b(2). We
conclude that the crime does not apply to a person who abandons
a corpse.

Wednesday, October 03, 2007

State v. Altariq Laboo

09-28-07 A-3746-06T5

Three individuals committed a string of armed robberies
over the course of a one-hour period, taking items that included
two cell phones. Approximately thirty hours after the last
robbery, police used a tracking device to track one of the
stolen cell phones to a three-family home located in a highcrime
area. Three officers entered the building and used a
handheld tracking device to determine the exact apartment. An
officer knocked on the apartment door and announced that he was
a police officer. The officer then heard a young female yelling
and a man's voice saying "shut up, shut up, 5-0," and scurrying
inside the apartment. Without obtaining a warrant, the officers
forcibly entered the apartment, wherein they found evidence from
the robberies.

We reversed the law division's order suppressing the
evidence. The search was justified because the exigent
circumstances, although police-created, arose as a result of
reasonable investigative conduct. We held that the police were
not required to procure a warrant because a delay presented a
real potential danger to the officers and public, under the
circumstances.

State v. Jason G. Meyer

9-19-07 (A-122-05/A-43-06)

“Special probation” under N.J.S.A. 2C:35-14 is a type of
disposition for certain non-violent drug offenders, but it is
not the exclusive route to admission into Drug Court.
Consistent with the Drug Court Manual and the general sentencing
provisions of the Code of Criminal Justice, N.J.S.A. 2C:45-1, a
trial court has discretion to admit non-violent drug-dependent
offenders into Drug Court.

State v. Wayne DeAngelo

09-13-07 A-4229-05T3

The focus of this appeal is the enforceability of a
municipal ordinance that prevents the display of a large balloon
in the shape of a rat during a labor dispute. We hold that the
ordinance, which does not affect the parties' rights in the
labor dispute, is not preempted by the National Labor Relations
Act (NLRA), 29 U.S.C.A. § 151-69, nor does it abridge any
party's freedom of expression. The ordinance is not void for
vagueness. It is content-neutral and the record does not
support a claim that it was selectively inferred.
Judge Sabatino dissents in part. He perceives a lack of
content neutrality in the ordinance because it allows balloon
grand opening signs.

State v. John L. Nyhammer

09-06-07 A-5672-04T4

We reverse a conviction for aggravated sexual assault on a
girl, then nine years old, concluding that each of two rulings
constituted reversible error. First, the judge should not have
admitted defendant's confession. An investigator called
defendant and explained that he was conducting an investigation
against another man in connection with the abuse of another
child as well as the victim in this case. The investigator did
not indicate to defendant that the victim in this case had made
allegations of abuse by defendants. Defendant went to the
police station. The investigator gave defendant the Miranda
warnings. After defendant gave a formal statement regarding the
incident of abuse by the other man, the investigator told him
that the victim had made accusations against defendant as well.
Defendant became distraught. Miranda warnings were not given a
second time. Defendant confessed. We conclude that defendant
did not make a knowing and voluntary waiver of his right to
remain silent. Therefore, his confession was inadmissible.
Second, we conclude that the victim's hearsay videotape,
which was the sole substantive evidence proving defendant's
conduct, should have been excluded from evidence, pursuant to
the Confrontation Clause. The videotaped statement was
"testimonial," there was no prior opportunity for defendant to
cross-examine the victim, and there was no opportunity for an
adequate and meaningful cross-examination at trial because the
victim was unresponsive to many questions. At trial, she did
not recollect questions going to the heart of the charges.
Therefore, the videotape was the sole substantive evidence at
trial.

State vs. Ahmet S. Kotsev

08-31-07 A-3256-05T5

1. N.J.S.A. 39:4-50 mandates a minimum of ninety consecutive
days incarceration for a third or subsequent conviction for
driving while intoxicated (DWI). Sheriff's Labor Assistance
Programs (SLAP) and weekend service are not substitute
sentencing options for third or subsequent offenders.
2. The 1993 statute mandated a third or subsequent offender to
serve 180 days incarceration "except that the court may lower
such term for each day, not exceeding ninety days, served
performing community service." No other options are available.
3. The 2004 amendment to N.J.S.A. 39:4-50, commonly referred
to as Michael's Law, similarly mandates 180 days incarceration
but allows a reduction of one day for each day, not exceeding
ninety days, in an inpatient rehabilitation program.
In other words, a third or subsequent DWI conviction
requires a defendant to serve a minimum of ninety consecutive
days of incarceration.(*Approved for Publication date)

Monday, August 20, 2007

State v. Jay C. Fisher

08-14-07 A-3026-05T3

Pursuant to N.J.S.A. 2C:11-5.1, a driver involved in a
motor vehicle accident that results in the death of another
person is guilty of a crime if the driver fails to comply with
the requirements of N.J.S.A. 39:4-129. The driver must either
remain at the scene to provide his or her driving credentials to
designated persons or report the accident and his or her
identity to the nearest officer of the local police department,
county police or the State Police. Compliance with those
requirements would preclude prosecution under N.J.S.A. 2C:11-
5.1.

Moreover, compliance with those requirements would not
violate the driver's privilege against self-incrimination. As
the United States Supreme Court recognized in California v.
Byers, disclosure of name and address is essentially a neutral
act and most accidents occur without creating criminal
liability. Under the facts of this case, there was no
reasonable basis for the driver to apprehend prosecution,
inasmuch as the decedent had been crouching or lying near the
middle of the road. If, under different facts, compliance with
the statutory requirements did pose a legitimate risk of selfincrimination,
it might be necessary to accord compliant drivers
use or derivative-use immunity as outlined in State v. Patton.

Monday, August 06, 2007

In the Matter of Expungement Application of G.R.

08-03-07 A-0079-06T1

N.J.S.A. 2C:35-5a(1), criminalizes the knowing or
purposeful possession of a CDS "with intent to manufacture,
distribute or dispense" to another. The statute does not draw a
distinction between distributing or dispensing to another in
exchange for money and a gratuitous transfer of the narcotics.
Either conduct constitutes the crime as defined by N.J.S.A.
2C:35-5a(1). However, for purpose of expungement, it does make
a difference. A sale of CDS is a bar to expungement; but a
transfer for no consideration is not. Therefore, we hold that
the facts must be examined to determine if the underlying
possession of the CDS was with intent to sell, as opposed to
dispense or distribute without a sale.

A judgment of conviction for possession of a CDS "with
intent to dispense or distribute" contrary to N.J.S.A. 2C:35-
5a(1), by itself is not conclusive of intent to sell or intent
to dispense for no consideration. The description of the
offense in the judgment of conviction does not aid the judge in
deciding whether the statutory bar applies in a given situation.
To the extent that State v. P.L., 369 N.J. Super. 291 (App. Div.
2004) makes such a suggestion, we disagree with that opinion.

State v. Ernest Spell

07-31-07 A-4186-05T5

While the record supports the conviction for refusal to
take a breathalyzer test, N.J.S.A. 39:4-50.2, and the conviction
is affirmed, effective October 1, 2007 officers must read the
additional paragraph of the statutorily promulgated statement of
the Motor Vehicle Commission before any refusal conviction can
be sustained.

Monday, July 30, 2007

State v. Michelle L. Elders

7-30-07 (A-42-06)

The “reasonable and articulable suspicion” standard of State v.
Carty, 174 N.J. 351 (2002), which governs consent searches of
cars that are validly stopped applies equally to disabled
vehicles on the State’s roadways. In this case, the Court
concludes that there was sufficient credible evidence in the
record to support the trial judge’s findings that the troopers
engaged in an unconstitutional investigatory detention and
search.

State v. Ronald Burns

7-26-07 (A-27-06)

When faced with the difficult dilemma of handling a recalcitrant
witness who had no valid basis to refuse to testify, the trial
court did not abuse its discretion by allowing the prosecutor to
call a witness who declined to answer specific questions before
the jury. In addition, the trial court properly instructed the
jury not to consider the facts in the questions that the witness
declined to answer, and that any error not objected to in the
charge does not require reversal of defendant’s conviction.

State v. Richard Wilson

07-26-07

State v. Richard Wilson, et al.
A-5618-05T1
-consolidated with-
State v. James Franklin, et al.
A-5622-05T1
-consolidated with-
State v. Regina Charles, et al.
A-5625-05T1

In these appeals by a corporate surety from bail forfeiture
orders, we hold that the bright-line distinction, for purposes
of exoneration or remittance of bail, between non-appearing
defendants found to be in custody out-of-state and in-state has
lost its significance. We thus find State v. Erickson, 154 N.J.
Super. 201 (App. Div. 1977), no longer to be a proper expression
of the law. We remand the matters for further consideration of
whether bail can be exonerated or remitted at the time the
defendant is located in out-of-state custody and a detainer is
lodged, or whether such relief must await the defendant's return
to New Jersey.

We also suggest that it is inequitable for the State, which
has resources for locating defendants that are not available to
recovery agents, to fail to notify the court and the surety when
a defendant has been found in out-of-state custody, since the
absence of such notification may affect the entry of orders of
forfeiture and the costs of recovery expended by the surety.

State v. Alex Banks

07-26-07 A-2983-05T4

Defendant was convicted by a jury and contends that the
trial court erred in removing a deliberating juror and
substituting an alternate after the initial panel declared its
inability to reach a unanimous verdict and the court delivered a
Czachor charge. We conclude that when a question about a
juror's "inability" to proceed arises after the jury has
informed the court that it cannot agree on a verdict, the trial
court should rely on the presumption that the jurors have
deliberated in accordance with the initial charge and any
additional instructions that can be given consistent with
Czachor. If the jurors cannot reach a verdict thereafter, then
mistrial should be granted.

Monday, July 23, 2007

State v. Raul D. Lopez

07-20-07 A-4469-04T4

The mandatory minimum sentence requirement in the last
paragraph of N.J.S.A. 2C:13-1c(2), for certain categories of
kidnapping, twenty-five years without parole, is not amenable to
a sentence downgrade under N.J.S.A. 2C:44-1f(2).

In the Matter of Civil Commitment of J.M.B., SVP-358-04

07-20-07 A-6458-03T2

J.M.B. was civilly committed under the Sexually Violent
Predator Act, N.J.S.A. 30:4-27.24 to -.38. He appealed his
initial commitment, alleging he was wrongfully committed because
none of his convictions were sexually violent offenses as
defined by N.J.S.A. 30:4-27.26. Held that subsection (b) is a
catchall provision permitting the psychiatric experts and the
court to consider the factual circumstances of the offenses in
making the determination of whether the committee committed
sexually violent offenses and was a sexual predator under the
Act.

State v. Tammy Buczkowski

07-18-07 A-4671-05T1

We apply the Supreme Court's dictum in State v. Fisher, 180
N.J. 462, 474 (2004), that N.J.S.A. 39:5-3a requires service of
process within thirty days from the date of the alleged offense
in most instances of charged motor vehicle violations. We,
therefore, affirm the Law Division's dismissal of a charge of
reckless driving, N.J.S.A. 39:4-96, as untimely. We also apply
the doctrine requiring "[t]he government [to] 'turn square
corners' in its dealings with the public."

Monday, July 16, 2007

Brendlin v. California (US Supreme Court Rules passengers in cars have search rights)

No. 06-8120 Decided June 18, 2007

Police officers stopped a car to check its registration without reason to believe it was being operated unlawfully. One of the officers recognized petitioner Brendlin, a passenger in the car. The police verified that Brendlin was a parole violator and officers arrested Brendlin and searched him, the driver and the car finding methamphetamine paraphernalia. Brendlin was charged with possessing and manufacturing meth and moved to suppress the evidence obtained from the search of his person and the car, arguing that the officers lacked probable cause or reasonable suspicion to stop the car which made the seizure of his person unconstitutional. The unanimous opinion recognized that passengers in vehicles stopped by the police are covered by the fourth amendment and may challenge the legality of the stop if arrested.

Held: when the police make a traffic stop, a passenger in the car, like the driver, is seized for fourth amendment purposes and so may challenge the stop?s constitutionality.

State v. Daniel C. McAllister

07-13-07 A-4604-04T4

A conviction for the elevated first degree offense of
endangering the welfare of a child by the production of
pornography proscribed by N.J.S.A. 2C:24-4b(3), which requires
the State to show that the defendant was a "parent, guardian or
other person legally charged with the care or custody of the
child," cannot be based solely on evidence that the defendant
was a live-in boyfriend of the victim's mother who had a de
facto parental relationship with the victim. Only a person who
has been assigned responsibility for a child's care or custody
by a court or public agency may be found to be "legally charged"
with the child's care or custody.

State v. Joseph R. Marolda, Sr.

07-12-07 A-2400-05T1

We apply the open fields doctrine in a case involving an
aerial observation of a corn field.

State v. Charles Brown

07-11-07 A-4980-05T1

Neither the doctrine of collateral estoppel nor fundamental
fairness preclude a criminal prosecution for the same events
following denial of a Final Restraining Order and dismissal of a
Domestic Violence complaint in the Family Part.

State v. Marcellus Williams

7-12-07 (A-26-06)

Marcellus R. Williams’ resistance and flight, which amounted to
obstruction, broke the link in the chain between the initial
unconstitutional investigatory stop and the later seizure of the
handgun. Under such circumstances, suppression of the evidence
is not warranted by the exclusionary rule.

State v. Raheem Means

7-11-07 (A-21-06)

A trial court may not set aside a plea agreement solely because
the prosecutor failed to notify the victims prior to entering
into the plea agreement.

Monday, July 09, 2007

State v. Jayson L. Conklin

07-06-07 A-2439-06T5

After the trial judge dismissed an indictment charging
defendant with terroristic threats contrary to N.J.S.A. 2C:12-
3(a) in connection with threats to kill the victim, we
reinstated the indictment, holding that threats to kill may be
prosecuted under either N.J.S.A. 2C:12-3(a) or N.J.S.A. 2C:12-
3(b) because the elements of subsection (a) differ from the
elements of subsection (b) and the prosecutor has the discretion
to seek an indictment under either statutory provision.

Friday, July 06, 2007

Robert M. Alpert v. Sharon Harrington

06-26-07 A-5686-05T3

An applicant for a driver's license cannot obtain an
exemption from the requirement of submission of a social
security number with the application by simply showing that he
tendered an "Affidavit of Revocation and Rescission" of his
social security registration to the Social Security
Administration.

Monday, July 02, 2007

State v. Alturik Francis

6-27-07 (A-31/63-06)

Because the misuse of grand jury occurred before Francis’
indictment, the inquiry should have been whether the testimony
of the family members was relevant to the crimes under
investigation and not whether the grand jury was used for the
sole or dominant purpose of securing additional evidence against
the defendant for use in the upcoming trial. The trial court is
to determine whether the testimony of Francis’ family members is
relevant to the charges against Francis.

State v. Robert Silva

06-29-07 A-2332-06T5

On interlocutory review, we reversed a trial judge's
judicial notice, in a criminal trial, of another judge's factual
finding in a related domestic violence proceeding.

State v. David L. Franchetta, Jr.

06-28-07 A-1498-06T5

This case presents a novel issue as to whether a "rebound
effect" or a "hangover effect" from a previous ingestion of
cocaine constitutes being "under the influence" of a narcotic
drug pursuant to N.J.S.A. 39:4-50. We held that it does.
Although the cocaine ingested by defendant was not
pharmacologically active at the time of the incident, we found
that it was the proximate cause of his impaired behavior and
that he was therefore "under the influence" of a narcotic drug
for purposes of N.J.S.A. 39:4-50.

Friday, June 29, 2007

IMO Camden County Prosecutor // IMO Union County Prosecutor

06-18-07 A-6631-05T5; A-0593-06T5

The Union County and Camden County Assistant Prosecutors'
Associations appeal decisions of the Public Employment Relations
Commission denying their petitions for initiation of compulsory
interest arbitration under the Police and Fire Public Interest
Arbitration Act, N.J.S.A. 34:13A-14a to -16.6 (the Act). The
Act allows law enforcement officers engaged in performing police
services to utilize the compulsory interest arbitration
procedure of N.J.S.A. 34:13A-16 as a means of resolving
collective bargaining impasses between law-enforcement employees
and their public employers.

We held assistant prosecutors are not engaged in performing
police services within the scope of the Act because assistant
prosecutors: are employed by county prosecutors to perform legal
services in furtherance of county prosecutors' law enforcement
activities, are not vested with statutory police powers, and are
not enumerated in the non-exclusive list of employee groups
entitled to utilize compulsory interest arbitration.

State v. Joseph M. Clark

6-21-07 (A-9-06)

The chief investigator of the Court’s Advisory Committee on
Judicial Conduct must comply with a subpoena ad testificandum in
respect of the criminal trial at issue in the within matter.
Compliance with a subpoena after an indictment has issued and a
trial is poised to commence will not harm the ACJC’s
investigatory flexibility or risk unfairness to the judge
involved. More importantly, the interests of respect for, and
public confidence in, the Judiciary require public disclosure in
this instance.

Trooper Ronald Roberts, Jr. v. State of New Jersey, Division of State Police

6-21-07 (A-62-06)

When a criminal investigation of a State Trooper has ended with
a decision not to prosecute, the statutory “applicable time
limit” within which disciplinary charges against the Trooper
must be filed is forty-five days after the Superintendent of the
State Police has obtained the report of the internal
disciplinary investigation.

John Carter v. Township of Bordentown

6-20-07 (A-16-06)

The Appellate Division erred in treating the principle of
progressive discipline as a mandate of law. The offending
behavior alone supported the police officer’s removal.

Michelle Thurber v. City of Burlington

6-20-07 (A-66/67-06)

Under the circumstances presented in this appeal, the deputy
municipal court administrator’s position was not a confidential
judicial position under the disciplinary authority of the
Assignment Judge. The six-month suspension imposed by the Merit
System Board was not arbitrary, capricious or unreasonable.

State v. Porfirio Jimenez

6-18-07 (A-75-06)

In a capital cause prosecution, if a single juror finds that the
defendant has proved his or her mental retardation by a
preponderance of the evidence, the defendant is not eligible to
receive the death penalty.

Monday, June 25, 2007

State v. Breane Starr Blakney

12-20-06 A-6162-01T4

In this appeal of defendant's murder conviction arising out
of the death of her six-month-old infant, we found that the jury
charge on the limited purposes for which evidence of prior abuse
of the infant could be considered pursuant to N.J.R.E. 404(b)
was neither confusing nor vague. In addition, we concluded that
the prosecutor's summation, though highly charged and delivered
without objection from the defense, was not so egregious that
defendant was deprived of a fair trial. We agree, however, that
defendant's conviction for third-degree aggravated assault
should have been charged as a lesser included offense of second degree aggravated assault.

Judge Weissbard filed a dissenting opinion in which he
disagreed with the majority's conclusion that the trial court
properly instructed the jury on the 404(b) evidence. He also
concluded that the prosecutor's misstatements during summation
further emphasized the need for carefully tailored, complete and
forceful limiting instructions. In his view, these errors
resulted in extreme prejudice to defendant in a case where the
evidence, if properly considered by the jury, could have
supported a manslaughter verdict rather than the murder
conviction.

State v. Ryan Buda

12-20-06 A-4778-04T4

An excited utterance made by a child abuse victim to a DYFS
worker at a hospital, although admissible under state evidence
law, is inadmissible in this case as a result of evolving
federal constitutional jurisprudence under Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), and Davis v. Washington,__ U.S. __, 126 S. Ct. 2266, 165
L. Ed. 2d 224 (2006). There is a concurring opinion.

State v. Manuel B. Ortiz

12-19-06 A-4941-05T2

The question presented is whether a defendant who is
adjudicated not guilty by reason of insanity, N.J.S.A. 2C:4-1,
and released, pursuant to N.J.S.A. 2C:4-8b(2), may be subjected
to periodic Krol reviews as a condition of release. Although we
answered the question in the negative, we concluded that the
court possesses inherent authority to impose, as a condition of
release under N.J.S.A. 2C:4-8b(2), the submission of periodic
reports from the defendant's mental health provider concerning
defendant's treatment, compliance with his medication regimen,
and future prognosis.

State v. Franklin Saving Account Number 2067

12-07-06 A-1895-05T1

On motion of the State's adversary in this civil forfeiture
proceeding, the trial court quashed a subpoena for bank records
that did not comply with Rule 4:14-7(c), precluded the State
from issuing another, granted summary judgment against the State
and required the State to pay counsel fees pursuant to Rule 1:4-
8. Prior to commencing this forfeiture action, however, the
State demonstrated probable cause and obtained a court order
that authorized seizure of the account and compelled the bank to
surrender related records.

We conclude that it was a mistaken exercise of discretion
to impose a sanction tantamount to a dismissal of the State's
case under these circumstances. The deviation did not prejudice
the litigant or deprive him of the protection that Rule 4:14-
7(c) was designed to afford.

We also conclude that the court erred in imposing sanctions
under Rule 1:4-8. The moving party did not follow the
procedural requirements of Rule 1:4-8(b). Moreover, there was
no basis for a finding that the subpoena was issued for an
improper purpose or without the evidential support required at
this early stage of the proceeding. See R. 1:4-8(a)(1)-(4).

State v. Walter Tuthill

12-08-06 A-6548-04T1

We hold that a surety's obligation on a bail bond is not
necessarily released by a court's mistaken cancellation of the
bond, and that absent a showing by the surety of detrimental
reliance or a material increase in the risk originally
undertaken, a court is not bound by its error, has the power to
correct it, and acts within its discretion in ordering the bond
reinstated without the surety's consent.

State v. Mark Ruccatano

11-17-06 A-1695-05T1

The Remittitur Guidelines governing partial remission of
forfeited bail were promulgated by the Administrative Office of
the Courts in Administrative Directive #13-04 issued on November
17, 2004, and were endorsed by us in State v. Ramirez, 378 N.J.
Super. 355 (App. Div. 2005). In part, the Guidelines call for
"minimal remission" in situations where the surety "provided
minimal or no supervision while the defendant was out on bail,"
but the amount of the remission varies depending on whether the
surety did or did not "engage in immediate substantial efforts
to recapture the defendant." In this case, we addressed the
meaning of "immediate substantial efforts."

We held that the immediacy of the surety's efforts should
ordinarily be measured from the time the surety is informed of
the warrant/forfeiture, without reference to when it would or
should have learned of that fact if there had been proper
supervision.

We also held that "substantial efforts" is given meaning by
the use of the phrase, "reasonable efforts under the
circumstances," one of the listed factors to be weighed in
deciding the amount of the remission. We also equate reasonable
with effective. The word substantial does not relate solely to
the quantum of effort expended by the surety, but to the quality
of that effort.

Here, the surety, once made aware of the defendant's
default, immediately ascertained that he was incarcerated in
another county and notified the Prosecutor's office in the
county where the bail was posted. Though not much effort was
expended, the surety's efforts were effective in recapturing
defendant and were reasonable under the circumstances. As a
result, the surety's efforts were substantial for the purpose of
applying the appropriate Guideline.

State v. Darnell Bell

11-17-06 A-3850-04T4

Applying New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640,
109 L. Ed. 2d 13 (1990), we held that an illegal search of a
third party's residence, during which defendant was found and
arrested pursuant to a valid arrest warrant, does not justify
suppression of defendant's confession, made three hours later at
the police station. We rejected defendant's argument that we
should reach a different result under Article I, paragraph seven
of the New Jersey Constitution.

State v. Amy Eldridge

11-01-06 A-2656-03T4

Where the State and defendant offered contrasting theories
of causation in a vehicular homicide prosecution, failure to
charge volitional conduct of another as an intervening cause,
pursuant to N.J.S.A. 2C:2-3c, was reversible error. The State
argues that if the jury had accepted defendant's version of the
cause of the crash, she would have been found not guilty under
the "but-for" causation test of N.J.S.A. 2C:2-3a(1); and
therefore, the failure to give a jury instruction was harmless
error. We reject that argument.

State v. Michael A. O’Neill

09-21-06 A-0147-04T4

We reject defendant's claim that the two tape-recorded
statements he made to the police should have been suppressed
because they were the product of a two-stage interrogation
technique (question-first, warn-later) found to be improper by
the United States Supreme Court in Missouri v. Seibert, 542 U.S.
600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).

State v. Anthony Walkings

09-21-06 A-2218-03T4

On appeal, defendant challenged the trial judge's denial of
his motion for a new trial and the judge's refusal to conduct a
hearing into a juror's concerns about jury deliberations in this
criminal matter. The juror first communicated his concerns to
the prosecutor's office the day after the verdict was rendered;
the prosecutor's office later referred the matter to the trial
judge. On appeal, the court agreed that the trial judge should
not have further explored the juror's concerns through his own
ex parte, unrecorded discussions with that juror, holding that
it is improper for a judge to have an ex parte communication
with a juror even after deliberations are complete and after the
jury has been discharged. Due to inadequacies in the record on
appeal, the court held that further proceedings were required in
order to amplify and illuminate the content of the juror's
communications with the prosecutor's office and the trial judge.

State v. Marshall Rountree

09-21-06 A-2043-02T1;A-5014-02T1

In a consolidated opinion, we affirmed the denial of postconviction
relief petitions in two counties, addressing two
issues. First, we held that State v. Franklin, applying
Apprendi to second-offender Graves Act mandatory extended-term
sentences, does not apply retroactively in the context of this
collateral review. Any broadening of Franklin's pipeline
retroactivity can come only from the Supreme Court.
Second, we addressed defendant's ineffective-assistance
argument, namely, that he was prejudiced by the failure of
counsel in both counties to move, pursuant to Rule 3:25A-1, for
consolidation of the pending indictments for purposes of plea
negotiations and sentencing. We concluded that counsel in such
circumstances should move for consolidation, and the failure to
do so established the first prong of defendant's ineffective assistance
claims.

We concluded, however, that defendant could not establish
the second prong of an ineffective-assistance claim. Defendant
was charged with Graves Act crimes in each county, and he
contended that if he had been sentenced in a single proceeding,
he would have avoided a second-offender extended term. For
purposes of this appeal, we assumed, by analogy to State v.
Owens (but without so deciding), that defendant's premise was
correct. But because defendant rejected a plea offer that was
as favorable as any he could have expected in a consolidated
plea offer, he could not prove that counsels' failures likely
made a difference.

Sunday, June 17, 2007

State v. Rahmil O’Neal

5-22-07 (A-94/95-05)

Based on the observations made by law enforcement officers,
there was probable cause to search and arrest O’Neal. The
police officer’s question to O’Neal that elicited his response
without prior Miranda warnings violated Miranda, but was
harmless under the circumstances.

State v. Christopher Romero

5-21-07 (A-109-05)

The jury received ample instruction about the need to examine
carefully the identification made by the eyewitness, and Romero
was not denied a fair trial without a tailored cross-ethnic
identification charge. The Court uses this opportunity to
refine the out-of-court identification charge so that it will
alert jurors in all eyewitness identification cases that such
testimony requires close scrutiny.

State v. Brian Wakefield

5-7-07 (A-37-04)

Wakefield’s penalty phase proceedings were fair, the death
sentence was properly imposed, and his death sentence is not
disproportionate.

State v. Robert a. Figueroa

4-26-07 (A-38-06)

The trial court’s supplemental jury charge, which did not
include any repetition of the language from the appropriate
initial charge that jurors “not surrender your honest
convictions as to the weight or effect of the evidence solely
because of the opinion of your fellow jurors, or for the mere
purpose of returning a verdict,” and which suggested that
deliberations might continue through the end of the week and
into the weekend, had the effect of coercing the dissenting
juror or jurors into agreeing with the verdict announced shortly
after the supplemental charge and thus Figueroa is entitled to a
new trial.

State v. Abdul Webster

4-25-07 (A-37-06)

Judgment of the Appellate Division is affirmed substantially for
the reasons expressed in Judge Payne’s written opinion in the
Appellate Division. If a sentence is subject to the No Early
Release Act’s mandatory-minimum-sentence provision, making
Webster ineligible for parole during the first eighty-five
percent of his sentence, the commutation and work credits cannot
be used to reduce that eighty-five percent parole disqualifier.

State v. Jeffrey Drury

4-24-07 (A-110-05)

Carjacking is not a predicate offense that serves to elevate a
sexual assault to the first-degree offense of aggravated sexual
assault; and Drury must be resentenced on the kidnapping
convictions.

State v. Calvin Lee

4-19-07 (A-34-06)

A defendant is entitled to discovery to support racial profiling
claims and the attenuation doctrine should be considered only
after it is determined that a defendant is a victim of racial
profiling.

State v. Lawrence A. Brown

4-17-07 (A-7-06)

When there is no governmental compulsion involved, the State may
cross-examine a defendant concerning his pre-arrest silence to
challenge his self-defense testimony.

State v. Michael Tucker

4-17-07 (A-6-06)

The prosecutor’s comments about inconsistencies in Tucker’s
statements did not constitute an unconstitutional comment on
silence.

State v. Ahmed F. Elkwisni

4-17-07 (A-24-06)

A prosecutor can cross-examine a defendant concerning
inconsistencies between his or her post-Miranda statement to the
police and his testimony at trial.

State v. Jayson S. Williams

4-11-07 (A-12-06)

The post-crime consciousness of guilt evidence is relevant to
the mental state of Williams at the time of the shooting and is
admissible to prove the crime of reckless manslaughter.

State v. Michael Colbert

4-4-07 (A-108-05)

The procedural methodology recognized in State v. W.A. was
intended for purely prospective application. The Court is
satisfied that defendant received his constitutional entitlement
as he was fully present during voir dire and no error occurred.

State v. Steven R. Fortin

3-28-07 (A-112-05)

The State may introduce material details of the sexual assault
committed by Fortin in Maine to present the bite-mark evidence
of this crime in context, subject to specific jury instructions
explaining the limited use of such evidence. The FBI’s Violent
Criminal Apprehension Program database is not admissible to
prove a signature crime.

State v. Randi Fleischman

3-19-07 (A-4-06)

When a defendant provides to officials in connection with a
fraudulent claim a document or oral narrative that contains
material facts relating to the claim, each such document or
narration is a “statement” equating to an “act” of insurance
fraud. The Court rejects the assertion that every discrete fact
within a narrative about a single claim amounts to an “act” of
insurance fraud.

State of New Jersey v. Pascal DuBois

3-8-07 (A-102-05)

The record amply demonstrates that defendant was sufficiently
informed to knowingly and intelligently waive his right to
counsel. Our careful review of the record satisfies us that the
trial court did not abuse its discretion in finding that
defendant knowingly and intelligently waived his right to
counsel.

State of New Jersey v. Brian W. Samuels

1-31-07 (A-88-05)

The State submitted sufficient evidence from which a jury could
conclude beyond a reasonable doubt that Samuels conspired to and
did commit an armed robbery. Nonetheless, the convictions for
conspiracy and armed robbery must be reversed and retried in
view of the trial court’s failure to charge the lesser-included
offense of attempted robbery and the court’s improper charge on
the elements of conspiracy and accomplice liability.

State v. John O’Hagen

1-24-07 (A-70-05)

The New Jersey DNA Database and Databank Act of N.J.S.A. 53:1-
20.17-20.28, as amended, does not violate the rights guaranteed
by the Fourth and Fourteenth Amendments to the United States
Constitution and Article I, Paragraphs 1 and 7 of the New Jersey
Constitution.

A.A., by his parent and guardian B.A., v. Attorney General of the State of New Jersey et als.

1-24-07 (A-105-05)

DNA test results lawfully obtained pursuant to the New Jersey
DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17-
20.28, as amended, may be used to solve crimes committed prior
to the taking of the DNA test.

State v. Vincent Dispoto

1-18-07 (A-103-05)

Because there was insufficient evidence to support the issuance
of the underlying domestic violence search warrant, the criminal
search warrant was invalid as fruit of the poisonous tree.
While this holding renders moot the Appellate Division’s finding
that failure to re-administer Miranda warnings at the time of
arrest required suppression of Dispoto’s post-arrest
incriminating statements, the Court adds in respect of the issue
of the Miranda warnings only that no bright line or per se rule
governs whether re-administration is required following a precustodial
Miranda warning.

State v. Breane Starr Blakney

12-20-06 (A-117-05)

We agree with Judge Weissbard substantially for the reasons
expressed in his dissenting opinion. We therefore reverse
defendant’s murder conviction and remand for a new trial on that
charge. In addition, we underscore the importance of wellcrafted
limiting instructions when the State introduces othercrime
evidence pursuant to N.J.R.E. 404(b), and remind
prosecutors of their obligation to keep their summation remarks
within acceptable bounds of advocacy.

State v. Porfirio Jimenez (A-50-05)

10-24-06 (A-50-05)

The absence of mental retardation is not akin to a capital
trigger, and Jimenez has the burden to prove by a preponderance
of the evidence that he is retarded.

In the Matter of Registrant T.T.: Application for Judicial Review of Notification and Tier

10-3-06 (A-58-05)

T.T.’s lack of sexual motivation does not alter the fact that he
committed the predicate offense of aggravated sexual assault and
Megan’s Law therefore applies. The intra-familial nature of
T.T.’s offense, however, is a circumstance that warrants the
less stringent community notification of a Tier One
classification.

State v. Keith R. Domicz

9-20-06 (A-42-05)

Under the circumstances, the warrantless thermal scan and
seizure of electricity records did not constitute prior unlawful
conduct that could tainted the later search. Grand jury
subpoena procedures adequately protect any privacy interest in
utility records. Law enforcement officers are not required to
have a reasonable and articulable suspicion that criminal
activity is occurring within a home before seeking consent to
search the residence.

Thursday, May 17, 2007

Major Changes in Municipal Court - Seminar :Recent DWI and Criminal Cases and the New Alcotest Breath Machine

NJSBA Annual Meeting- Borgata Resort, Atlantic City


Thursday, May 17 10:30 a.m. - noon

Discussion of new DWI law with .08 BAC; the new 7110 breathalyzer testing machine; recent cases involving DWI or drugs; the refusal law and pending legislation; court rules to limit plea bargaining; blood test admissibility in a DWI or drug case suppression and other pre-trial motions.

Speakers:
Richard M. Keil, Esq.
Oakhurst

John Menzel, Esq.
Point Pleasant Beach

Kenneth A. Vercammen, Esq.
Kenneth Vercammen & Associates, Edison

Hon. Marilyn E. Williams
Newark Municipal Court

Sponsors: Municipal Court Practice Section
Criminal Law Section
General Practice Section
Young Lawyers Division
ICLE

Certified Trial Attorneys: 1.5 criminal credits pending
PA CLE: 1.5 substantive credits pending
NY CLE (Transitional/Non-transitional): 1.5 professional practice credits
One speaker will also provide updated information on the 7100 Alcotest Mark III MK breath test machine that will replace the
Breathalyzer Model 900 and 900A, used in New Jersey for the past thirty years. He will also discuss the science and operation of this new breath test machine, and consider its impact on breath testing in New Jersey. This information is critical for attorneys who represent plaintiffs or defendants in DWI matters.

Materials Provided to all Attendees:
Call NJSBA at 732-249-5000 for meeting registration details

For Sub-Lease: Office Space - 2053 Woodbridge Ave, Edison, NJ

Ideal for satellite office in fast growing Edison area, or for an Attorney, Financial Planner, Accountant, Insurance Agent, and other Business Professional.

The offices are located on the 1st floor of the building.

Front window office 12.1 x 7.5 - 90 square feet
connecting office 12.4 x 9.4 - 116 square feet
plus client use of joint reception room 16.6 x 7.2

$600 per month
Owner of building is local attorney, Kenneth Vercammen who handles Personal Injury, Elder Law, and Criminal Law.

The following is included with rental:
1. Lighting/ Utilities
2. Bathroom Supplies
3. Landscaping / Snow Removal
4. Cleaning of Common Area
5. cold water, hot water, municipal water/sewer charges
6. Use of conference table for meetings or depositions
7. Permit you to put a sign in the front window
8. Use of our audio tape and video library.
9. Use of the front room reception area
10. Use of 2nd floor conference room by appointment

We also have available additional approximately 700 square feet of office space for $1,000.00 per month
Call Kenneth Vercammen Law Office at 732-572-0500 to schedule an appointment.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

Alibi Rule Infringes on Defendant's Rights. State v. Bradshaw ___ NJ Super. ___ (App. Div. Decided April 2, 2007) A-4731-02T4.

The court held that the application of the notice of alibi rule, R. 3:12-2, to bar a defendant's own testimony as to his whereabouts at the time of a crime, because of his failure to comply with the rule, unconstitutionally infringes on defendant's state and federal right to testify, a right emanating from the due process and compulsory process guarantees. The court disagreed with contrary rulings in State v. Francis, 128 NJ Super. 346 (App. Div. 1974), and State v. Gonzalez, 223 NJ Super. 377 (App. Div.), certif. denied, 111 NJ 589 (1988). Combined with a highly objectionable summation by
the prosecutor, the error was not harmless. A new trial is required.

Defendant Can Contest Lab Reports As Hearsay. State v. Kent 391 N.J. Super. 352 (App. Div. Decided March 22, 2007) A-3137-05T1.

Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A:62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.

The court reaffirms the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.

However the court, also noted that, unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.

Defendant's DWI conviction is affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.