Kenneth Vercammen & Associates, P.C.
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Monday, July 28, 2008

State of New Jersey v. Joseph M. Bringhurst

07-23-08 A-4302-06T5

We conclude that post-conviction relief (PCR) petitions brought pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed.2d 413 (1990), must comply with Rule 7:10-2, and are subject to the five-year limit contained in Rule 7:10-2 (g)(2). However, those time limits may be relaxed to prevent an injustice. Because a Laurick PCR cannot be brought until there is a second or subsequent DWI conviction, the time bar should not mechanically be applied to deny the petition. However, to obtain the benefit of relaxation of the time limit, a defendant must put forth a prima facie case for relief in his petition itself.

In this case, where defendant's prior, uncounseled conviction was allegedly rendered ten years earlier, he failed to put forth a prima facie case for relief in his PCR petition. Therefore, its denial was appropriate.

Editor, Mitch Zuckerman

State v. V.D.

07-23-08 A-2357-06T5

Defendant entered a negotiated plea of guilty to two counts of the fourth-degree crime of possession of a false document,
N.J.S.A. 2C:21-2.1(d). The trial court placed defendant on probation with the special condition that she notify the Bureau
of Immigration and Customs Enforcement (ICE). We struck that condition. It was not reasonably contemplated by defendant when she pled guilty and, in any event, exceeded the authority of the trial court.

State v. Rambo

07-22-08 A-5923-04T4

Defendant, who admitted shooting and killing his wife, was convicted of murder. The trial court correctly refused to charge passion/provocation manslaughter. Defendant argued he was entitled to a new trial because the Probate Part had refused, under the "Slayer Statutes" to allow him access to funds to retain private counsel of his choice. We did not procedurally have jurisdiction to review the orders of the Probate Part because defendant's appeal was only from the judgment of conviction.

Monday, July 21, 2008

State v. Shariff Ingram

7-21-08 (A-58/59-07)

When a defendant is charged as an accomplice and lesser-included offenses already are charged in an indictment, the trial court comprehensively must charge the jury on the elements both of the lesser-included crimes and of accomplice liability.
Nevertheless, the failure to so separately charge the jury here did not constitute reversible error. The prosecutor did not misstate the applicability of the statutory affirmative defense to felony murder. In these circumstances, it was error for the
trial court to instruct the jury that the defendant’s voluntary absence from the trial could be construed by the jury as evidence of consciousness of guilt, and that error mandates a new trial.

Tuesday, July 15, 2008

State v. Darren L. Bradshaw

7-10-08 (A-46-07)

The judgment of the Appellate Division is affirmed, but for different reasons. The trial court abused its discretion when it denied defendant from fully presenting his alibi testimony and the preclusion of that testimony constituted harmful error, requiring a new trial; consequently, the Court need not reach the constitutional issue. At any retrial, the prosecutor should neither argue facts that are not in the record, nor expressly or implicitly vouch for the credibility of the victim.

State v. Janet Gelman, n/k/a Caitlin Ryerson

7-8-08 (A-42-07)

The current N.J.S.A. 2C:34-1 is insolubly ambiguous concerning whether a defendant can be charged with the fourth-degree crime of prostitution based on a prior petty disorderly persons conviction under the predecessor statute. The Court is thus
compelled to apply the doctrine of lenity and dismiss the indictment.

State of New Jersey v. Anthony Gioe, et al.

07-02-08 A-1214-06T5

The novel issue addressed in this appeal is whether a search warrant is invalid where an affiant failed to appear
personally before a municipal court judge as required under Rule 3:5-3(a). We found the "insufficiencies or irregularities" in
the proceedings to obtain the search warrant did not violate defendant's substantive rights, and they did not invalidate the
search warrant that was issued. R. 3:5-7(g). Accordingly, we affirmed the order denying defendant's motion to suppress.

Tuesday, July 01, 2008

State v. Kenneth Nero

6-30-08 (A-32-07)

To convict a defendant of first-degree robbery involving the threat of the immediate use of a deadly weapon by simulation,
the jury must find that the simulation was undertaken with a purposeful state of mind. The trial court’s jurysufficiently imparted the requisite mental state.

Mitchell Zuckerman - Editor, Criminal Law Blog

State v. Charles S. Thomas

6-26-08 (A-62-07)

The extended-term-sentencing statute provides that a judge must place on the record his or her reasoning for applying an
extended term to a different charge than that sought by the prosecutor. Therefore, this matter must be remanded to the
trial court for an explanation of why it declined to accept the prosecutor’s application to apply an extended term sentence to
the eluding count and instead applied the extended term to the robbery count.

State v. Diara Barden

6-24-08 (A-23-07)

The evidence that defendant sold drugs to the co-defendant over a six-month period prior to the robbery was evidence of other
crimes that was unduly prejudicial and should have been excluded.

State v. Ryan Buda

6-23-08 (A-4/5-07)

The trial court did not abuse its discretion in determining that the child’s statements to his mother and the DYFS worker were
properly admitted into evidence as “excited utterances” under N.J.R.E. 803(c)(2). The Child’s statements were not testimonial
and, hence, their admission at trial did not run afoul of the Confrontation Clause.

State in the Interest of J.A.

6-23-08 (A-2-07)

The hearsay statements were a narrative of past events and made while neither the declarant nor victim was in imminent danger.
The statements were testimonial and, because the declarant was not produced as a witness or subject to cross-examination, the
admission of the statements violated J.A.’s Sixth Amendment right to confront the witnesses against him.

State v. James Dorman & State v. William Sweet

6-23-08 (A-1-07) & (A-38-07)

The ampoule testing certificates and the breath testing instrument inspection certificates are hearsay statements
admissible under the business records exception to the hearsay rule. Those records also are nontestimonial and thus are admissible under the Confrontation Clause.

State v. Luis Garcia

6-18-08 (A-120-06)

The trial court abused its discretion in not granting an adjournment to enforce the order to produce the defense witness
from a prison. The Court remands the matter to the trial court for a hearing at which defendant will be given the opportunity
to call the witness. At that hearing, if the witness gives testimony that would have been favorable to defendant at his
trial, then defendant will have shown that his constitutional right to compulsory process was violated. In that case, the
trial court must vacate defendant’s convictions and order a new trial.

State v. Tykim Kemp

6-16-07 (A-124-06)

The details of Kemp’s confession to having engaged in a two-day robbery spree were admissible, but the admission of evidence of a prior uncharged robbery involving Kemp was error requiring a retrial.

State v. Franklin Jack Burr, II

6-11-07 (A-36-07)

The proffered expert testimony on defendant’s diagnosis with Asperger’s Disorder was relevant and material to his explanation
of himself and his conduct. Preclusion of that evidence constituted reversible error necessitating a new trial. Also,
if on remand the trial court is faced with a request by the jury for a replay of the videotaped pretrial interview of A.A., the
court first should inquire whether the jury would be satisfied with a readback of the testimony. If the jury persists in its
request for a video playback, then the court must determine whether the jury must also hear a readback of any testimony that
the court concludes is necessary to provide the proper context for the video playback.

State v. Wilberto Rodriguez

6-9-07 (A-25/26-07)

Based on the New Jersey Code of Criminal Justice, a person who kills in the honest and reasonable belief that the protection of
his own life requires the use of deadly force does not kill recklessly. The State’s failure to prove beyond a reasonable
doubt that defendant did not act in self-defense in repelling his attacker entitles defendant to an exoneration of criminal
liability on the murder, aggravated manslaughter, and manslaughter charges.

State v. Mylee Cottle

5-6-08 (A-111-06)

An attorney has a per se conflict of interest when both the attorney and the client are simultaneously under indictment in
the same county and are being prosecuted by the same prosecutor’s office. Without an informed waiver made in court
and on the record, prejudice will be presumed, rendering the representation ineffective. The undisclosed conflict in this
case denied the juvenile the effective representation of counsel guaranteed to him under Article I, Paragraph 10 of theJersey Constitution and he is entitled to a new trial.

State v. Michael Lisa

4-22-08 (A-12-07)

The grand jury instructions incorporating duty principles from the Restatement of Torts suffered from a fatal flaw that could
have been the substantial motivation for the return of the reckless manslaughter charge, and dismissal was the only correct
course of action under the circumstances.

State v. Shirley Reid

4-21-08 (A-105-06)

Pursuant to Article I, Paragraph 7, of the New Jersey Constitution, the Court holds that citizens have a reasonable
expectation of privacy in the subscriber information they provide to Internet service providers. Accordingly, the motion
to suppress by defendant Reid was properly granted because the police used a deficient municipal subpoena. Law enforcement
officials can obtain subscriber information by serving a grand jury subpoena on an Internet service provider without notice to
the subscriber. The State may seek to reacquire the information with a proper grand jury subpoena because records of the
information existed independently of the faulty process used by the police, and the conduct of the police did not affect the

State v. Carlos Feal

4-8-08 (A-16-07)

The holding of Daniels should be given pipeline retroactivity but, in this case, the Daniels violation does not warrant
reversal of Feal’s convictions.

State v. Adams & State v. Comer

3-26-08 (A-103-06) & (A-116-06)

On this record, the Court declines to reevaluate the standards for the admissibility of out-of-court identifications. Under
current standards, there was sufficient credible evidence to affirm the trial court’s decision to admit the identification
testimony. It was not plain error for the trial court to fail to give a cautionary charge on the use of Harrison’s testimony
and guilty plea. Finally, defendants’ presumptive sentences, imposed prior to State v. Natale, do not require remands.

State v. Jane H. Chun, et al.

3-17-08 (A-96-06)

The Court adopts, as modified, the Special Master’s reports and recommendations. Subject to certain conditions, the Court holds
that the Alcotest is scientifically reliable and that its results are admissible in drunk driving prosecutions. The Court
contemporaneously issues an Order vacating its January 10, 2006, stay of drunk driving prosecutions, appeals, and sentencing,
which shall proceed in accordance with the directives set forth therein.

State of New Jersey v. Murray Aikens, et al.

06-30-08 A-2281-07T4

Flight from one state to another constitutes a violation of the Federal Fugitive Act, and United States Marshals are authorized to make a warrantless arrest of a person who they have probable cause to believe has violated that Act.

Mitchell Zuckerman - Editor of NJ Criminal Law Blog

State of New Jersey v. Maribel Rolon, et al.

06-20-08 A-1049-06T4

In this appeal, we reverse defendant's conviction for first-degree robbery and remand for a new trial. Although the jury determined defendant was armed with a deadly weapon——a knife——the court committed reversible error when it instructed:
"defendant's intent with respect to the [knife] is irrelevant."

State of New Jersey v. Jacob Burno-Taylor

06-19-08 A-0265-07T4

Because defendant's right to remain silent was not scrupulously honored, the trial court should have granted defendant's motion to suppress his statement.

State of New Jersey v. Steven R. Fortin

06-04-08 A-3579-07T4

Defendant convicted of capital murder committed in 1994 cannot be sentenced to life-without-parole because at the time of offense the maximum parole ineligibility term was thirty years and under the December 17, 2007 amendments to the murder statute the defendant can no longer present mitigating factors to reduce the sentence to such term if not outweighed by aggravating factors. The State did not advocate trying the matter as a capital case would have been tried to achieve a sentence of life-without-parole. Moreover, the holding is narrow as amendments such as the life-without-parole provisions of N.J.S.A. 2C:11-3 and No Early Release Act statutes would affect the sentences of capital murders after those statutes took effect.

State of New Jersey v. Sky Atwater, a/k/a Tyrone Johnson

5-21-08 A-3771-04T4

1. Where the jury's repeated questions indicated confusion about the requisite mental state for vehicular homicide, it was not sufficient for the trial court to re-charge the jury on recklessness. Rather, the trial court should have compared recklessness with negligence, in light of the jury's questions. Denial of defendant's request to charge negligence in response to the jury's questions was reversible error.

2. It was reversible error for the trial court to preclude a defendant from cross-examining the State's expert on the coefficient of friction, a factor the expert testified was critical in formulating his opinion on the speed of defendant's vehicle at the time of the accident.

3. The trial court committed plain error when it failed to strike and give a curative instruction for the prosecutor's repeated remarks that overstepped the bounds of propriety and deprived defendant of a fair trial.

4. The trial court's denial of defendant's application to argue negligence in summation under the circumstances of this case contributed to cumulative error.

5. In a vehicular homicide case where there is evidence that defendant may have been impaired by the use of alcohol, but no evidence that he was driving while intoxicated (DWI) under the statutory standard of N.J.S.A. 39:4-50, the trial court should instruct the jury on the blood alcohol concentration (BAC) required for a per se DWI.

State of New Jersey v. Philip J. Castagna

05-12-08 A-4402-06T5

In trial of former police chief for arson and conspiracy to murder his wife, fact that the wife obtained a domestic violence temporary restraining order against defendant resulting in his suspension from office deemed admissible under Rule 404(b) on State's theory of motive. Similarly, charges later filed by wife of violation of the TRO and terroristic threats, resulting in conviction on disorderly persons charges and forfeiture of defendant's office, also held admissible as to motive. Jury to receive limiting instructions including an instruction that defendant's conviction on disorderly persons charges was reversed after defendant's indictment on arson and conspiracy charges.

State of New Jersey vs. William Schadewald

05-05-08 A-1191-06T5

1. A defendant convicted of a second or subsequent offense of driving while intoxicated (DWI), N.J.S.A. 39:4-50, who seeks a step-down in sentence on the ground that one or more of the prior convictions were uncounseled, pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), must first petition for postconviction relief (PCR) in the municipal court in which the prior uncounseled conviction occurred.

2. The PCR proceedings in municipal court are governed by Rule 7:10-2(f) and (g).

State of New Jersey v. Brandon Krause

04-17-08 A-3737-06T5

Based on defendant's failure to meet his burden of proving facts that would establish that the Hackettstown noise ordinance was preempted by the Noise Control Act of 1971, N.J.S.A. 13:1G-1 to -23, the ordinance was held valid and the conviction affirmed. However, the opinion noted that local noise ordinances may require DEP approval to be enforceable at least with respect to certain facilities, such as commercial and industrial sites.

State of New Jersey v. James Robinson

04-15-08 A-6381-05T4

In this appeal, we reverse the trial court's denial of defendant's motion to suppress evidence found in his dwelling. Our decision is grounded exclusively under the rights conferred in Article I, paragraph 7 of the Constitution of the State of New Jersey. In executing a knock-and-announce warrant, the police must give the occupants of the dwelling a reasonable opportunity to respond before resorting to the use of force to gain entry to the residence. Here, the police broke down the entrance door of the dwelling, twenty to thirty seconds after announcing their presence, thus converting the knock-and-announce warrant into a de facto no-knock warrant. Furthermore, the use of a so-called flash bang explosive device by the police was factually unwarranted, and rendered a nullity the warrant's knock-and announce condition imposed by the court.