STATE v. LEE A-1246-09T2

STATE v. LEE A-1246-09T2 12-17-10

To charge the act of masturbation in view of an adult as fourth-degree criminal sexual contact under N.J.S.A. 2C:14-3b and 2C:14-2c(1), rather than disorderly persons lewdness under N.J.S.A. 2C:14-4, the State must have evidence that the actor used physical force or coercion. Defendant's touching himself does not satisfy that element of the offense. The holding of State in the Interest of M.T.S., 129 N.J. 422 (1992) — that physical force is equivalent to the act of sexual contact or penetration without affirmative and freely-given consent of the victim — applies to invasion of the bodily integrity of the victim.

PAUL CORTESINI & THOMAS ZOLA V. HAMILTON TWP. PLANNING BOARD AND WAL-MART ESTATE BUSINESS TRUST A-3309-09T1

PAUL CORTESINI & THOMAS ZOLA V. HAMILTON TWP. PLANNING BOARD AND WAL-MART ESTATE BUSINESS TRUST A-3309-09T1 12-14-10

If an applicant for subdivision or site plan approval fails to apply for and obtain a necessary bulk variance, the land use approval may be challenged on that ground. However, if no party brings a timely challenge to the land use approval on that ground, a new site approval for a renovation of the premises, which does not increase or affect the existing nonconformity with the zoning ordinance, is not subject to attack on the ground that original land use approval did not include a necessary bulk variance.

STATE V. REEVEY A-5316-08T4

STATE V. REEVEY A-5316-08T4 12-13-10

We affirm the denial of post-conviction relief based on alleged ineffective assistance of counsel, who failed to secure defendant's presence in the courtroom during an allegedly critical stage of the proceedings. During a break in jury selection when defendant was not in the courtroom, the judge conducted a hearing to determine whether a material witness intended to appear and testify. The witness, who was in the courtroom, was placed on the witness stand and examined with respect to his intention to comply with the subpoena allegedly issued to him. Although denying receipt of a subpoena, the witness indicated he would appear and testify if a subpoena were served upon him. The judge then briefly questioned the witness respecting the statement he gave to the police and concluded from the witness's answers that a hearing pursuant to State v. Gross, 121 N.J. 1 (1990), was required and would be conducted in defendant's presence. Defendant was brought into the courtroom, and the Gross hearing was then conducted.

In his PCR petition, defendant raised multiple issues, which the PCR judge determined adversely to defendant. On appeal, defendant raised only the issue of his absence from the material-witness hearing, which he characterized as "a critical stage of the proceedings." Because this was an issue that could have been raised on direct appeal, we considered whether enforcement of the Rule 3:22-4 bar to preclude this claim would result in fundamental injustice. R. 3:22-4(a)(2).We found that the witness's testimony outside defendant's presence concerned only his obligation to testify at trial and whether he recalled the content of the statement he had given to the police. We noted that defendant was present for the Gross hearing and his counsel had an opportunity to cross-examine the witness at that time, including the very issues raised outside of defendant's presence. As a consequence, we found that there was neither an injustice nor a substantial denial of defendant's rights because his absence did not affect the fairness of the proceeding.

STATE OF NEW JERSEY VS. JASHOWN WALKER A-1137-08T

STATE OF NEW JERSEY VS. JASHOWN WALKER A-1137-08T4 12-13-10

Defendant was convicted of second-degree conspiracy to commit robbery and second-degree robbery. He is African- American and the victim is Caucasian. Defense counsel requested a cross-racial identification charge which the judge refused to give, concluding, in part, that the victim, who had worked indowntown Newark for several years, had "substantial connections" to African-Americans and people of other races.

We reversed. First, we concluded that a cross-racial identification charge should have been given because identification was the critical issue in the case and there was no independent corroboration of the victim's identification. Second, although it presented a close question, we concluded that the error was harmful under the facts presented and in light of the recent Special Master's Report in State v. Henderson, A-08, that discusses recent scientific analyses of the reliability of identification testimony and jurors' misconceptions in that regard.

STATE OF NEW JERSEY V. BERNARD E. LOPEZ A-4118-08T4

STATE OF NEW JERSEY V. BERNARD E. LOPEZ A-4118-08T4 12-9-10

The trial court held that, because defendant waived his right to testify at his trial for unlawful possession of a weapon, N.J.S.A. 2C:39-5b, he was precluded from testifying at the immediately-following trial for possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7b. Acknowledging that the proceedings were two separate trials and not phases of the same trial, we held that defendant's waiver of the right to testify in the first trial did not operate to waive his right to testify in the second trial.

State v Maricic ___ NJ Super. __ (App. Div. 2010) A-5247-08T

State v Maricic ___ NJ Super. __ (App. Div. 2010) A-5247-08T4 8/31/2010

In this DWI matter, the Court held that defendant has the right to discover downloaded Alcotest results from the subject instrument from the date of last calibration to the date of defendant's breath test and any repair logs or written documentation relating to repairs of the subject Alcotest machine, without a showing of prior knowledge of flawed procedures or equipment. Although the requested items were not included in either Special Master King's list of fundamental documents that must be produced by the prosecutor in discovery or the list adopted by the Court in State v. Chun, 194 N.J. 54, 145, cert. denied 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), they are nonetheless of unquestionable relevance to a determination of the reliability of the Alcotest machine and procedures utilized.

VOLUNTEER LEGAL INTERNS NEEDED- PUBLIC DEFENDER OF METUCHEN

VOLUNTEER LEGAL INTERNS NEEDED- PUBLIC DEFENDER OF METUCHEN

The Public Defenders provide Indigent individuals charged with criminal or serious motor vehicle charges with free or limited cost legal defense. The Public Defender of Metuchen welcomes persons to serve as volunteer interns. Volunteer Law Clerk interns will attend Wednesday evening and every other Friday morning court sessions.

Volunteer to help indigent people charged with criminal and motor vehicle offenses of magnitude. In additional to time in court, you will be given projects to provide information to the public on updated criminal laws and statutes. Help people less fortunate than you who are down on their luck. This is an unpaid internship helping indigent persons.

Court times: WEDNESDAY 1pm PM [approx]- 8:30 PM, every other Friday 9-12, plus hearing preparation work.

Volunteer Internship Description:

-Interview Clients facing charges in Municipal Court including Drug Possession, Drunk Driving, Assault, Driving While Suspended and other criminal and traffic offenses

-Make demands for Discovery on Prosecutor and review police reports

-Attend hearings and learn from experienced trial attorneys

-Prepare Motions to Suppress Evidence and Motions to Compel Discovery

-Conduct appropriate Legal research

-Acquire skills in Criminal Law and Procedure by active participation

-Participate in Public Relations activities and help organize seminars

- Update Lists of Prosecutors, Judges and Attorneys for publication of

NJ Municipal Court Law Review

- Revise criminal and traffic law Articles and submit to Law Journals and criminal law websites.

- Learn how to add criminal statutes and criminal articles to legal blogs and websites. http://criminal-jury.blogspot.com/

Program lasts 12 weeks. Minimum time commitment September- May is 10 hours per week. Must be over 18 years old and have a car. You can work more hours if you want and more than 12 weeks.

For Summer- College graduates and Law students only. Minimum Volunteer time commitment in summer- 18 hours per week. Send cover letter and resume. After sending resume, call to schedule interview

We are committed to excellence and service to clients and the community. Applicants must have attention to detail. We attempt to give assignments which will be meaningful and memorable but, nevertheless, expect that the volunteers will pitch in on whatever needs to be done.

Interested persons must mail or fax a cover letter indicating the internship they are applying for and resume. If no personal cover letter by student, the resume will not be considered.

PUBLIC DEFENDER OF METUCHEN

Att: Kenneth Vercammen, Esq.

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

STATE OF NEW JERSEY v. DONALD R. HAND A-3901-09T3

STATE OF NEW JERSEY v. DONALD R. HAND A-3901-09T3 11-29-10

In this appeal by the State, we determine whether a guilty plea to fourth-degree creating a risk of widespread injury or death, N.J.S.A. 2C:17-2(c), precluded defendant's subsequent prosecution for driving under the influence (DWI), N.J.S.A. 39:4-50. The municipal court judge denied defendant's motion to dismiss the DWI and reckless driving charges on double jeopardy grounds. On appeal de novo to the Law Division, Judge Kryan Connor, citing the "same evidence" test, found defendant's prosecution for DWI and reckless driving was barred. He vacated the guilty pleas and dismissed the charges.

We affirmed, rejecting the State's argument that the "same evidence" test set forth in State v. De Luca, 108 N.J. 98, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987), should not apply to guilty pleas but should instead apply to the actual evidence to be presented at trial. Because defendant's operation of his motor vehicle under the influence of alcohol was the reckless act upon which the indictment was based and also because the State required defendant, as part of his plea to the indictment, to admit that he operated his motor vehicle under the influence of alcohol, his subsequent prosecution for DWI was barred on double jeopardy grounds.