A-6320-07T4
An interlocutory order denying a motion to dismiss on
double jeopardy grounds is not appealable as a final judgment.
Editor: Eric Waage
Friday, October 31, 2008
10-10-08 State of New Jersey v. Anthony Alexander
A-6333-06T4
In this appeal, the court reversed the denial of postconviction
relief because trial counsel's representation of both
defendant and another individual, who allegedly participated in
crimes with defendant, placed counsel in a per se conflict of
interest. The court held that because the conflict arose
between the entry of a guilty plea but before sentencing, there
was no cause to disturb the plea, but that defendant was
entitled to be resentenced following a determination of what
might have occurred had defendant sought to cooperate with law
enforcement regarding his alleged cohort.
In this appeal, the court reversed the denial of postconviction
relief because trial counsel's representation of both
defendant and another individual, who allegedly participated in
crimes with defendant, placed counsel in a per se conflict of
interest. The court held that because the conflict arose
between the entry of a guilty plea but before sentencing, there
was no cause to disturb the plea, but that defendant was
entitled to be resentenced following a determination of what
might have occurred had defendant sought to cooperate with law
enforcement regarding his alleged cohort.
10-06-08 State of New Jersey v. John Taimanglo
A-2569-06T2
Part III of the Rules govern municipal appeals in the Law
Division. Defendant must be afforded right to be present and
allocution unless waived on the record. He must also be advised
of right to appeal and State v. Molina, 187 N.J. 531 (2006)
applies in the absence of adherence to R. 3:21-4(h). The
conviction in this case is affirmed because the remand conducted
pending the appeal permitted defendant to raise all issues in
the Law Division and the de novo review cured defects in the
municipal court proceedings.
Part III of the Rules govern municipal appeals in the Law
Division. Defendant must be afforded right to be present and
allocution unless waived on the record. He must also be advised
of right to appeal and State v. Molina, 187 N.J. 531 (2006)
applies in the absence of adherence to R. 3:21-4(h). The
conviction in this case is affirmed because the remand conducted
pending the appeal permitted defendant to raise all issues in
the Law Division and the de novo review cured defects in the
municipal court proceedings.
09-30-08 State of New Jersey v. Jayson Williams
A-2524-07T4
There can be no dispute that a criminal investigation
infected by racial animus would violate a defendant's due
process rights. Clearly there is no room for racial bias in any
law enforcement investigation.
On leave granted, the State argues that the trial court
erred in ordering the State to disclose to defendant records
relating to racial remarks made by a "senior officer" in the
prosecutor's office during a briefing on the case.
In the majority's view, where blatantly racist remarks have
been made by a "senior officer" during a briefing on the case,
due process requires that we allow discovery of relevant
information to determine whether the investigation and/or
prosecution was tainted by racism such that the outcome may have
been different.
A dissent was filed by Wefing, J.A.D.
There can be no dispute that a criminal investigation
infected by racial animus would violate a defendant's due
process rights. Clearly there is no room for racial bias in any
law enforcement investigation.
On leave granted, the State argues that the trial court
erred in ordering the State to disclose to defendant records
relating to racial remarks made by a "senior officer" in the
prosecutor's office during a briefing on the case.
In the majority's view, where blatantly racist remarks have
been made by a "senior officer" during a briefing on the case,
due process requires that we allow discovery of relevant
information to determine whether the investigation and/or
prosecution was tainted by racism such that the outcome may have
been different.
A dissent was filed by Wefing, J.A.D.
09-18-08 State of New Jersey v. Quadir Whitaker
A-4340-05T4
Defendant was convicted under the principle of accomplice
liability, N.J.S.A. 2C:2-6b(3), of having committed the crimes
of first-degree robbery and felony murder. The question
presented on appeal is whether a defendant charged as an
accomplice may be found guilty of robbery by uttering an
instruction to the principal, during the immediate flight from
an attempted theft, to hide the weapon used during the attempted
theft, after all necessary elements of the crime of robbery have
concluded.
We answered the question in the negative. We held that the
phrase contained in the robbery statute, "[a]n act shall be
deemed to be included in the phrase 'in the course of committing
a theft'" N.J.S.A. 2C:15-1a, refers only to those acts set forth
in sections a(1), (2), and (3) of the statute which elevate
simple theft, or attempted theft, to the crime of robbery. We
determined that the phrase does not encompass other acts
committed by an alleged accomplice after all elements necessary
to constitute the crime of robbery had concluded. Lastly, to
the extent that State v. Williams, 232 N.J. Super. 432 (App.
Div.), certif. denied, 118 N.J. 208 (1989) and State v. Baker,
303 N.J. Super. 411 (App. Div.), certif. denied, 151 N.J. 470
(1997) hold to the contrary, we disagreed
Defendant was convicted under the principle of accomplice
liability, N.J.S.A. 2C:2-6b(3), of having committed the crimes
of first-degree robbery and felony murder. The question
presented on appeal is whether a defendant charged as an
accomplice may be found guilty of robbery by uttering an
instruction to the principal, during the immediate flight from
an attempted theft, to hide the weapon used during the attempted
theft, after all necessary elements of the crime of robbery have
concluded.
We answered the question in the negative. We held that the
phrase contained in the robbery statute, "[a]n act shall be
deemed to be included in the phrase 'in the course of committing
a theft'" N.J.S.A. 2C:15-1a, refers only to those acts set forth
in sections a(1), (2), and (3) of the statute which elevate
simple theft, or attempted theft, to the crime of robbery. We
determined that the phrase does not encompass other acts
committed by an alleged accomplice after all elements necessary
to constitute the crime of robbery had concluded. Lastly, to
the extent that State v. Williams, 232 N.J. Super. 432 (App.
Div.), certif. denied, 118 N.J. 208 (1989) and State v. Baker,
303 N.J. Super. 411 (App. Div.), certif. denied, 151 N.J. 470
(1997) hold to the contrary, we disagreed
Friday, October 03, 2008
State v. Scott E. Schnabel
7-29-08 State v. Scott E. Schnabel (A-13-07)
The Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence
was properly admitted and, in light of that evidence, evidence
of third-party sexual abuse should have been admitted.
Editor: Eric Waage
The Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence
was properly admitted and, in light of that evidence, evidence
of third-party sexual abuse should have been admitted.
Editor: Eric Waage
State v. Shariff Ingram
7-21-08 State v. Shariff Ingram (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.
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.
Wednesday, October 01, 2008
State of New Jersey v. Hiram Rodriguez
03-28-08 State of New Jersey v. Hiram Rodriguez
A-4614-05T4
In this appeal, the court determined that the police
complied with the "reasonable wait time" standard and therefore
did not violate the "knock and announce" rule, which is
incorporated in the Fourth Amendment and Article I, paragraph 7
of the state constitution, when they waited fifteen to twenty
seconds after announcing their presence before entering the
premises.
The State also argued in this appeal that Hudson v.
Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56
(2006), which holds that the Fourth Amendment does not require
application of the exclusionary rule upon a knock and announce
violation, should be followed in determining the appropriate
remedy for a similar violation of our state constitution. Since
the court found no violation, it recognized that it was not
necessary to decide this issue but expressed in dictum its doubt
that Hudson would be followed in determining the remedy
available upon a breach of the state constitutional knock and
announce rule.
Judge Stern filed a concurring opinion.
Editor: Eric Waage
A-4614-05T4
In this appeal, the court determined that the police
complied with the "reasonable wait time" standard and therefore
did not violate the "knock and announce" rule, which is
incorporated in the Fourth Amendment and Article I, paragraph 7
of the state constitution, when they waited fifteen to twenty
seconds after announcing their presence before entering the
premises.
The State also argued in this appeal that Hudson v.
Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56
(2006), which holds that the Fourth Amendment does not require
application of the exclusionary rule upon a knock and announce
violation, should be followed in determining the appropriate
remedy for a similar violation of our state constitution. Since
the court found no violation, it recognized that it was not
necessary to decide this issue but expressed in dictum its doubt
that Hudson would be followed in determining the remedy
available upon a breach of the state constitutional knock and
announce rule.
Judge Stern filed a concurring opinion.
Editor: Eric Waage
State of New Jersey v. Brenda Hoffman
03-31-08 State of New Jersey v. Brenda Hoffman
A-6473-06T4
In this appeal, we reverse an order admitting defendant
into a Pretrial Intervention program over the prosecutor's
objection. We conclude the victims' status as police officers
does not eviscerate N.J.S.A. 2C:43-12(e)(4), which requires
prosecutors to consider "[t]he desire of the complainant or
victim to forego prosecution."
A-6473-06T4
In this appeal, we reverse an order admitting defendant
into a Pretrial Intervention program over the prosecutor's
objection. We conclude the victims' status as police officers
does not eviscerate N.J.S.A. 2C:43-12(e)(4), which requires
prosecutors to consider "[t]he desire of the complainant or
victim to forego prosecution."
State of New Jersey v. Forrest M. Baker, Sr.
04-14-08 State of New Jersey v. Forrest M. Baker, Sr.
A-6018-05T4
Defendant, a federal inmate at the Fort Dix Correctional
Facility in Wrightstown, was produced for pre-trial appearances
and for trial in the Law Division by way of the judge's "order
to produce." We concluded that defendant's pre-trial motion to
dismiss the indictment pursuant to the "anti-shuttling"
provision of the Interstate Agreement on Detainers (IAD),
N.J.S.A. 2A:159A-4, was properly denied. Because a writ of
habeas corpus ad prosequendum is not a detainer for IAD
purposes, the statute was not triggered and the motion was
properly denied.
A-6018-05T4
Defendant, a federal inmate at the Fort Dix Correctional
Facility in Wrightstown, was produced for pre-trial appearances
and for trial in the Law Division by way of the judge's "order
to produce." We concluded that defendant's pre-trial motion to
dismiss the indictment pursuant to the "anti-shuttling"
provision of the Interstate Agreement on Detainers (IAD),
N.J.S.A. 2A:159A-4, was properly denied. Because a writ of
habeas corpus ad prosequendum is not a detainer for IAD
purposes, the statute was not triggered and the motion was
properly denied.
State of New Jersey v. James Robinson
04-15-08 State of New Jersey v. James Robinson
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-andannounce
condition imposed by the court.
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-andannounce
condition imposed by the court.
State of New Jersey v. James Robinson
04-15-08 State of New Jersey v. James Robinson
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-andannounce
condition imposed by the court.
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-andannounce
condition imposed by the court.
State of New Jersey vs. William Schadewald
05-05-08* State of New Jersey vs. William Schadewald
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). [*Approved for Publication date]
05-01-08 Milford Mill 128, LLC v. Borough of Milford and the Borough
of Milford Joint Planning Board and Zoning Board of
Adjustment
A-5508-06T1
The Borough of Milford in March 2004 designated 70 acres of
a defunct paper mill as an area in need of redevelopment under
the Local Redevelopment and Housing Law ("LRHL"), N.J.S.A.
40A:12A-1 to -49. In January 2006 the Borough adopted a
Redevelopment Plan for the site, calling for a mix of commercial
and residential uses and substantial areas set aside for open
space and wetlands. Among other things, the Plan requires that
a party seeking to develop the site must first obtain from the
Borough Council a determination of consistency with the Plan
before submitting its proposal to the Joint Planning Board and
Board of Adjustment ("the Joint Board").
Plaintiff, a contract purchaser, seeks to develop the site
with markedly higher densities and more expansive uses than
those called for under the Redevelopment Plan. Plaintiff sought
use variances that would allow it to build units at more than
sixteen times the area's permitted residential density, and
which would nearly double the Borough's entire population. When
the Joint Board declined to act on the variance application,
plaintiff in February 2007 filed an action in lieu of
prerogative writs, alleging various constitutional and statutory
claims. The Law Division dismissed plaintiff's complaint.
We affirm the Law Division's dismissal because, pursuant to
the Redevelopment Plan, plaintiff must obtain a consistency
finding from the Borough Council as a precondition of having its
development project considered by the Joint Board. The
situation here is distinguishable from that in Weeden v. City
Council of Trenton, 391 N.J. Super. 214 (App. Div.), certif.
denied, 192 N.J. 73 (2007), because plaintiff's proposal is not
a "minor exception" to the Redevelopment Plan, but rather an
attempt to rezone, de facto, the entire redevelopment area.
We also sustain the trial court's finding that plaintiff's
lawsuit challenging the merits of the Plan, more than two years
after its adoption, is untimely under Rule 4:69-6(a). However,
as the trial court's order contemplates, the dismissal of the
present action is without prejudice to future proceedings. Such
proceedings may include a potential inverse condemnation action
if the existing Plan ultimately deprives plaintiff, or the title
owner, of all economically beneficial uses of the property.
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). [*Approved for Publication date]
05-01-08 Milford Mill 128, LLC v. Borough of Milford and the Borough
of Milford Joint Planning Board and Zoning Board of
Adjustment
A-5508-06T1
The Borough of Milford in March 2004 designated 70 acres of
a defunct paper mill as an area in need of redevelopment under
the Local Redevelopment and Housing Law ("LRHL"), N.J.S.A.
40A:12A-1 to -49. In January 2006 the Borough adopted a
Redevelopment Plan for the site, calling for a mix of commercial
and residential uses and substantial areas set aside for open
space and wetlands. Among other things, the Plan requires that
a party seeking to develop the site must first obtain from the
Borough Council a determination of consistency with the Plan
before submitting its proposal to the Joint Planning Board and
Board of Adjustment ("the Joint Board").
Plaintiff, a contract purchaser, seeks to develop the site
with markedly higher densities and more expansive uses than
those called for under the Redevelopment Plan. Plaintiff sought
use variances that would allow it to build units at more than
sixteen times the area's permitted residential density, and
which would nearly double the Borough's entire population. When
the Joint Board declined to act on the variance application,
plaintiff in February 2007 filed an action in lieu of
prerogative writs, alleging various constitutional and statutory
claims. The Law Division dismissed plaintiff's complaint.
We affirm the Law Division's dismissal because, pursuant to
the Redevelopment Plan, plaintiff must obtain a consistency
finding from the Borough Council as a precondition of having its
development project considered by the Joint Board. The
situation here is distinguishable from that in Weeden v. City
Council of Trenton, 391 N.J. Super. 214 (App. Div.), certif.
denied, 192 N.J. 73 (2007), because plaintiff's proposal is not
a "minor exception" to the Redevelopment Plan, but rather an
attempt to rezone, de facto, the entire redevelopment area.
We also sustain the trial court's finding that plaintiff's
lawsuit challenging the merits of the Plan, more than two years
after its adoption, is untimely under Rule 4:69-6(a). However,
as the trial court's order contemplates, the dismissal of the
present action is without prejudice to future proceedings. Such
proceedings may include a potential inverse condemnation action
if the existing Plan ultimately deprives plaintiff, or the title
owner, of all economically beneficial uses of the property.
State of New Jersey v. Philip J. Castagna
05-12-08 State of New Jersey v. Philip J. Castagna
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.
Editor: Eric Waage
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.
Editor: Eric Waage
State of New Jersey v. Steven R. Fortin
06-04-08 State of New Jersey v. Steven R. Fortin
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.
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. Jacob Burno-Taylor
06-19-08 State of New Jersey v. Jacob Burno-Taylor
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.
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. Maribel Rolon, et al.
06-20-08 State of New Jersey v. Maribel Rolon, et al.
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."
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. Anthony Gioe, et al.
07-02-08 State of New Jersey v. Anthony Gioe, et al.
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.
07-02-08 Harbor Commuter Service, Inc., Harbor Shuttle Inc.,
Walter Mihm and Stanis B. Mihm v. Frenkel & Co., Inc.,
McCue Captains Agency, Inc., and AON Risk Services,
Inc. of Ohio
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.
07-02-08 Harbor Commuter Service, Inc., Harbor Shuttle Inc.,
Walter Mihm and Stanis B. Mihm v. Frenkel & Co., Inc.,
McCue Captains Agency, Inc., and AON Risk Services,
Inc. of Ohio
State v. Rambo
07-22-08 State v. Rambo
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.
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.
State v. V.D.
07-23-08 State v. V.D.
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.
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 of New Jersey v. Joseph M. Bringhurst
07-23-08 State of New Jersey v. Joseph M. Bringhurst
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.
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.
State of New Jersey v. Cecilia X. Chen
07-31-08 State of New Jersey v. Cecilia X. Chen
A-4251-06T5
The admissibility of the identification evidence presented
at trial is the most significant issue raised on this appeal
from a conviction for attempted murder. The victim initially
identified the defendant under highly suggestive circumstances
that posed a significant risk of compromising the initial and
subsequent identifications. Law enforcement officers had no
role in creating, encouraging or permitting the highly
suggestive procedures utilized at the time of the initial
identification.
We conclude that when there is evidence that the highly
suggestive words or conduct of a private citizen pose a
significant risk of misidentification, a preliminary hearing on
admissibility of the identification is required. The holding is
based on the court's responsibility to ensure that evidence of
pre-trial identifications meet the standard for admission of
such evidence, N.J.R.E. 803, and the Court's authority to
exclude evidence of subsequent identifications that are of such
questionable reliability that the probative value is
substantially outweighed by the risk of prejudice and misleading
the jury, N.J.R.E. 403. See State v. Michaels, 136 N.J. 299,
316 (1994); State v. Williams, 39 N.J. 471, 489 (1963).
A-4251-06T5
The admissibility of the identification evidence presented
at trial is the most significant issue raised on this appeal
from a conviction for attempted murder. The victim initially
identified the defendant under highly suggestive circumstances
that posed a significant risk of compromising the initial and
subsequent identifications. Law enforcement officers had no
role in creating, encouraging or permitting the highly
suggestive procedures utilized at the time of the initial
identification.
We conclude that when there is evidence that the highly
suggestive words or conduct of a private citizen pose a
significant risk of misidentification, a preliminary hearing on
admissibility of the identification is required. The holding is
based on the court's responsibility to ensure that evidence of
pre-trial identifications meet the standard for admission of
such evidence, N.J.R.E. 803, and the Court's authority to
exclude evidence of subsequent identifications that are of such
questionable reliability that the probative value is
substantially outweighed by the risk of prejudice and misleading
the jury, N.J.R.E. 403. See State v. Michaels, 136 N.J. 299,
316 (1994); State v. Williams, 39 N.J. 471, 489 (1963).
State v. Robert K. Thompson, et al.
08-01-08 State v. Robert K. Thompson, et al.
A-2279-07T4
Violation of the Conflicts of Interest Law and a
corresponding Code of Ethics of a department of State
government, standing alone, does not provide a basis for
criminal prosecution for official misconduct. We affirmed the
dismissal of counts containing such charges. But when such
violations are combined with official acts benefiting or
intending to benefit the party with whom the public official has
a conflict, official misconduct may be charged. We reversed the
dismissal counts containing such charges.
A-2279-07T4
Violation of the Conflicts of Interest Law and a
corresponding Code of Ethics of a department of State
government, standing alone, does not provide a basis for
criminal prosecution for official misconduct. We affirmed the
dismissal of counts containing such charges. But when such
violations are combined with official acts benefiting or
intending to benefit the party with whom the public official has
a conflict, official misconduct may be charged. We reversed the
dismissal counts containing such charges.
State v. Oscar Osorio
08-04-08 State v. Oscar Osorio
A-2067-05T4
Under the 2005 decision of the Supreme Court of the United
States in Johnson v. California, a defendant may establish a
prima facie case of the discriminatory use of peremptory
challenges by producing evidence sufficient to support an
inference that discrimination has occurred. Therefore, the part
of our Supreme Court's decision in Gilmore that required a
defendant to show a "substantial likelihood" of the
discriminatory use of peremptory challenges to establish a prima
facie case has been superseded by Johnson.
A-2067-05T4
Under the 2005 decision of the Supreme Court of the United
States in Johnson v. California, a defendant may establish a
prima facie case of the discriminatory use of peremptory
challenges by producing evidence sufficient to support an
inference that discrimination has occurred. Therefore, the part
of our Supreme Court's decision in Gilmore that required a
defendant to show a "substantial likelihood" of the
discriminatory use of peremptory challenges to establish a prima
facie case has been superseded by Johnson.
State of New Jersey v. Michael A. Cooper
08-06-08 State of New Jersey v. Michael A. Cooper
A-1066-06T4
On remand following the Appellate Division's decision
ordering that sentences be served concurrently, and not
consecutively as originally imposed, the aggregate sentence
imposed on remand cannot be longer than the period of parole
ineligibility flowing from the original sentence as well as the
original aggregate specific term; hence, on remand when a
consecutive sentence must be made to run concurrent with a
sentence carrying a parole ineligibility term under the No Early
Release Act, the new specific term sentence imposed cannot be
greater than that which produces an 85 percent parole
ineligibility term greater than the original period of parole
ineligibility.
A-1066-06T4
On remand following the Appellate Division's decision
ordering that sentences be served concurrently, and not
consecutively as originally imposed, the aggregate sentence
imposed on remand cannot be longer than the period of parole
ineligibility flowing from the original sentence as well as the
original aggregate specific term; hence, on remand when a
consecutive sentence must be made to run concurrent with a
sentence carrying a parole ineligibility term under the No Early
Release Act, the new specific term sentence imposed cannot be
greater than that which produces an 85 percent parole
ineligibility term greater than the original period of parole
ineligibility.
State of New Jersey v. Walter Quezada
08-13-08 State of New Jersey v. Walter Quezada
A-6472-05T2
A volunteer fireman who calls in false alarms and responds
to the scene of the reported fire may be convicted of official
misconduct, N.J.S.A. 2C:30-2. A conviction for setting false
fire alarms, N.J.S.A. 2C:33-3, merges into official misconduct
when the false alarm constitutes the official misconduct.
A-6472-05T2
A volunteer fireman who calls in false alarms and responds
to the scene of the reported fire may be convicted of official
misconduct, N.J.S.A. 2C:30-2. A conviction for setting false
fire alarms, N.J.S.A. 2C:33-3, merges into official misconduct
when the false alarm constitutes the official misconduct.
State of New Jersey v. Quadir Whitaker
09-18-08 State of New Jersey v. Quadir Whitaker
A-4340-05T4
Defendant was convicted under the principle of accomplice
liability, N.J.S.A. 2C:2-6b(3), of having committed the crimes
of first-degree robbery and felony murder. The question
presented on appeal is whether a defendant charged as an
accomplice may be found guilty of robbery by uttering an
instruction to the principal, during the immediate flight from
an attempted theft, to hide the weapon used during the attempted
theft, after all necessary elements of the crime of robbery have
concluded.
We answered the question in the negative. We held that the
phrase contained in the robbery statute, "[a]n act shall be
deemed to be included in the phrase 'in the course of committing
a theft'" N.J.S.A. 2C:15-1a, refers only to those acts set forth
in sections a(1), (2), and (3) of the statute which elevate
simple theft, or attempted theft, to the crime of robbery. We
determined that the phrase does not encompass other acts
committed by an alleged accomplice after all elements necessary
to constitute the crime of robbery had concluded. Lastly, to
the extent that State v. Williams, 232 N.J. Super. 432 (App.
Div.), certif. denied, 118 N.J. 208 (1989) and State v. Baker,
303 N.J. Super. 411 (App. Div.), certif. denied, 151 N.J. 470
(1997) hold to the contrary, we disagreed.
A-4340-05T4
Defendant was convicted under the principle of accomplice
liability, N.J.S.A. 2C:2-6b(3), of having committed the crimes
of first-degree robbery and felony murder. The question
presented on appeal is whether a defendant charged as an
accomplice may be found guilty of robbery by uttering an
instruction to the principal, during the immediate flight from
an attempted theft, to hide the weapon used during the attempted
theft, after all necessary elements of the crime of robbery have
concluded.
We answered the question in the negative. We held that the
phrase contained in the robbery statute, "[a]n act shall be
deemed to be included in the phrase 'in the course of committing
a theft'" N.J.S.A. 2C:15-1a, refers only to those acts set forth
in sections a(1), (2), and (3) of the statute which elevate
simple theft, or attempted theft, to the crime of robbery. We
determined that the phrase does not encompass other acts
committed by an alleged accomplice after all elements necessary
to constitute the crime of robbery had concluded. Lastly, to
the extent that State v. Williams, 232 N.J. Super. 432 (App.
Div.), certif. denied, 118 N.J. 208 (1989) and State v. Baker,
303 N.J. Super. 411 (App. Div.), certif. denied, 151 N.J. 470
(1997) hold to the contrary, we disagreed.
State of New Jersey v. Jayson Williams
09-30-08 State of New Jersey v. Jayson Williams
A-2524-07T4
There can be no dispute that a criminal investigation
infected by racial animus would violate a defendant's due
process rights. Clearly there is no room for racial bias in any
law enforcement investigation.
On leave granted, the State argues that the trial court
erred in ordering the State to disclose to defendant records
relating to racial remarks made by a "senior officer" in the
prosecutor's office during a briefing on the case.
In the majority's view, where blatantly racist remarks have
been made by a "senior officer" during a briefing on the case,
due process requires that we allow discovery of relevant
information to determine whether the investigation and/or
prosecution was tainted by racism such that the outcome may have
been different.
A dissent was filed by Wefing, J.A.D.
Editor: Eric Waage
A-2524-07T4
There can be no dispute that a criminal investigation
infected by racial animus would violate a defendant's due
process rights. Clearly there is no room for racial bias in any
law enforcement investigation.
On leave granted, the State argues that the trial court
erred in ordering the State to disclose to defendant records
relating to racial remarks made by a "senior officer" in the
prosecutor's office during a briefing on the case.
In the majority's view, where blatantly racist remarks have
been made by a "senior officer" during a briefing on the case,
due process requires that we allow discovery of relevant
information to determine whether the investigation and/or
prosecution was tainted by racism such that the outcome may have
been different.
A dissent was filed by Wefing, J.A.D.
Editor: Eric Waage
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