STATE OF NEW JERSEY VS. RAMON A. RODRIGUEZ-ALEJO A-0815-09T3

STATE OF NEW JERSEY VS. RAMON A. RODRIGUEZ-ALEJO A-0815-09T3

We afforded State v. Marquez, 202 N.J. 485 (2010) pipeline retroactivity and reversed a breathalyzer refusal conviction because the Spanish-speaking defendant was not read the standard form information in Spanish. Although not raised on appeal, we also noted that the conviction was flawed pursuant to our recent holding in State v. Schmidt, 414 N.J. Super. 194 (App. Div. 2010), because he was not read the second portion of the standard form when he did not produce a sufficient breath sample. 03-25-11

State v. Michael Gore (A-77-09)

State v. Michael Gore (A-77-09)

State v. Cleveland, 6 N.J., 316 (1951), is superseded by the New Jersey Rules of Evidence. Rule 803(c)(5) permits the admission of a defendant’s unsigned and unacknowledged transcribed statement, used to refresh a witness’ memory as past recollection recorded, provided there is no objection and all foundational requirements, including Rule 803(b)(1), are satisfied. Although the trial court erroneously permitted the formal confession statement to be moved into evidence after the record had closed, plain error does not exist because there is no reasonable likelihood that admission of the statement caused the jury to reach a conclusion that it otherwise would not have reached.

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STATE OF NEW JERSEY VS. JAMES D. PENNINGTON A-2637-09T2

STATE OF NEW JERSEY VS. JAMES D. PENNINGTON

A-2637-09T2

Based upon its derivation from the Model Penal Code, we

hold that, when read together, N.J.S.A. 2C:44-5(b)(1) and

N.J.S.A. 2C:44-5(a)(2) prohibit the imposition of a second

extended term on a defendant who is serving an extended term for

a crime committed after the one for which the sentence is being

imposed, subject to the statutory exception for crimes committed

while incarcerated. 03-21-11

not joyriding just to be in car STATE OF NEW JERSEY IN THE INTEREST OF W.G.

not joyriding just to be in car STATE OF NEW JERSEY IN THE INTEREST OF W.G.

Submitted December 13, 2010 - Decided March 17, 2011

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0559-09T4

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FJ-20-1483-09, FJ- 20-1482-09, FJ-20-1760-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Robert J. Cino, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM W.G. appeals from an adjudication of delinquency on a

lesser-included fourth-degree offense of unlawful taking of a means of conveyance, commonly known as joyriding, in violation of N.J.S.A. 2C:20-10(b). Based on our independent review of the record and applicable law, we are constrained to reverse.

On December 21, 2009, at approximately 10:00 p.m., Sergeant John Quick of the New Brunswick Police Department was on patrol when he saw a car proceeding southbound on Route 27 at a high rate of speed. The driver attempted to make a left-hand turn onto Sanford Street, a one-way street, in the wrong direction. Once the driver realized his error, he made a u-turn into oncoming traffic, at which point Quick radioed dispatch and requested a check on the license plate. He was informed the vehicle, a 1994 Honda Accord, had been reported stolen from a parking lot the day before. Quick put on his overhead lights and stopped the car at Sandy and Front Streets. There were four occupants, including W.G. and his brother1 seated in the rear of the vehicle.2 At the time of the stop, the ignition was empty.

When Quick searched the driver, he found a small screwdriver and a key in his right front pocket. Although the key fit the glove box and the trunk, Quick could not insert it in the badly damaged ignition. Starting the motor required the use of an object such as a screwdriver.

Quick testified at trial that, after nineteen years on the police force, he knew the condition of the ignition meant the

1

W.G. and his brother were tried in the same juvenile proceeding. 2 During an unsuccessful effort at entering a guilty plea, W.G. said under oath that he was seated in the front of the vehicle. The officer's recollection was that W.G. was seated in the rear.

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A-0559-09T4

vehicle was stolen. In fact, Quick described a photograph introduced during his testimony as depicting "an enormous gaping hole in the steering column." As one of the Honda's owners described it, "the place that you turned the key . . . is no longer there. It's just the inside." The other owner testified that the front steering column is visible from the rear.

Defense counsel argued the Rule 3:18-1 motion for acquittal at the close of the State's case based on the theory that the State did not prove the juvenile even knew the car had been stolen. He contended it was not "necessarily reasonable" to assume a person seated in the rear of even a relatively small car at 10:00 p.m. would have noticed the condition of the steering column. He therefore urged the court to acquit W.G. both of receiving stolen property as well as the lesser-included offense of joyriding.

The court denied the Rule 3:18-1 application and adjudicated W.G. delinquent pursuant to subsection (b) of the unlawful taking of a means of conveyance statute: "A person commits a crime of the fourth degree if, with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent." N.J.S.A.

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A-0559-09T4

2C:20-10(b). Now on appeal, the following points are advanced

on behalf

of the juvenile:

POINT I NO LEGAL BASIS EXISTED TO FIND BEYOND A REASONABLE DOUBT THAT THE JUVENILE HAD ACTED WITH PURPOSE TO WITHHOLD A MOTOR VEHICLE TEMPORARILY FROM THE OWNER BY TAKING, OPERATING OR EXERCISING CONTROL OVER THE CAR IN VIOLATION OF N.J.S.A. 2C:20-10b

POINT II THE LOWER COURT SHOULD HAVE GRANTED DEFENSE COUNSEL'S MOTION TO DISMISS THE COMPLAINT AT THE END OF THE STATE'S CASE

POINT III THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE ADJUDICATION FOR JOY-RIDING, ESPECIALLY GIVEN THE SPARSE RECORD IN THIS TRIAL. (Not Raised Below)

POINT IV THE LOWER COURT COMMITTED PLAIN ERROR BY FINDING THAT THE JUVENILE WAS GUILTY OF THE OFFENSE OF JOY-RIDING. (Not Raised Below)

POINT V REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE JUVENILE OF JUSTICE

The juvenile first contends that pursuant to State v. McCoy, 222 N.J. Super. 626, 633-34 (App. Div. 1988), aff’d, 116 N.J. 293 (1989), the judge's acquittal on the original charge alleged in the complaint, namely, receiving stolen property, N.J.S.A. 2C:20-7(a), makes his finding of guilt pursuant to N.J.S.A. 2C:20-10(b) logically inconsistent. The judge specifically found the juvenile did not "acquire[] possession,

4

A-0559-09T4

control, or title of the car," nor did he have "any intent to possess or control the motor vehicle, let alone acquire title to it."

Despite this conclusion, reasonable in light of the void in the State's proofs, the judge went on to state "everyone in the car . . . knew it to be stolen and in participating in using it through their mere presence purposely withheld it. . . ." Yet, the "purpose to withhold temporarily from the owner" required by subsection (b) necessarily involves acts including the unauthorized taking, operation, or exercise of control over a motor vehicle. It is not reasonable to equate the mere act of being a passenger in a motor vehicle known to be stolen with any of these activities.

In contrast, subsection (d) of the statute states: "[a] person commits a crime of the fourth degree if he enters and rides in a motor vehicle knowing that the motor vehicle has been taken or is being operated without the consent of the owner or other person authorized to consent." N.J.S.A. 2C:20-10(d). The language of that section clearly applies to this scenario. Here, the State proved only that the juvenile must have known the Honda was stolen because of the condition of the ignition and the use of an object, as opposed to a key, to start the car.

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A-0559-09T4

The judge's factual findings necessarily mean the juvenile could have been adjudicated delinquent only of the offense of joyriding as a passenger, subsection (d), which can be a lesser- included offense of receiving stolen property. See State v. Moore, 330 N.J. Super. 535, 543-45 (App. Div.), certif. denied, 165 N.J. 531 (2000). Subsection (b), however, requires a "purpose to withhold temporarily from the owner," which the judge had specifically found absent from the State's case.

In general, criminal defendants may be retried following the reversal of their conviction on appeal. See N.J.S.A. 2C:1- 9(c); State v. Lane, 279 N.J. Super. 209, 214 (App. Div.), certif. denied, 141 N.J. 94 (1995). Double jeopardy considerations preclude this option where a reviewing court bases its decision on "'a failure of proof at trial'" rather than "trial error." State v. Millett, 272 N.J. Super. 68, 97 (App. Div. 1994) (quoting Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1, 12 (1978)). The distinction rests on the fact that "[a] reversal for trial error never constitutes a decision that the State failed to prove its case, and therefore implies nothing with respect to the defendant's guilt or innocence." Ibid.

The question we must therefore decide is whether the court's mistaken adjudication of guilt constitutes a "failure of

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A-0559-09T4

proof" or mere "trial error." See State v. Tropea, 78 N.J. 309, 313-14 (1978) (adopting the Burks distinction between trial errors and failures of proof). Reversals springing from trial errors reveal only the existence of a "defective" process, after which "the accused has a strong interest in obtaining a fair readjudication of his guilt free from error" and "society maintains a valid concern for insuring that the guilty are punished." Burks, supra, 437 U.S. at 15, 98 S. Ct. at 2149, 57

L. Ed. 2d

at 12. In contrast, an evidentiary reversal

means that the government's case was so lacking that it should not have even been submitted to the jury. . . . [and] it is difficult to conceive how society has any greater interest in retrying a defendant when . . . it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.

[Id. at 16, 98 S. Ct. at 2150, 57 L. Ed. 2d at 12-13.]

Because the State could not prove anything more juvenile's presence in a patently stolen motor vehicle, we believe the failure is one of proof and not process, and that the double jeopardy clause bars retrial. Because no purposeful conduct was proven beyond the intent to hitch a ride in a stolen car, the State did not prove the elements of the subsection (b) offense. The State did not prove appellant's unauthorized taking, operation, or control, or the purpose to withhold

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A-0559-09T4

than the

temporarily from the owner. Accordingly, we will not reach the juvenile's other points, made moot by our conclusion.

Reversed.

8

A-0559-09T4

STATE OF NEW JERSEY VS MELANIE McGUIRE A-6576-06T4

STATE OF NEW JERSEY VS MELANIE McGUIRE A-6576-06T4

Defendant's conviction and life sentence are affirmed on charges including murdering her husband and desecrating his body. Among the issues discussed in the opinion are: (1) admissibility of expert testimony, including tool mark analysis, that matched garbage bags in which sections of the body were found with ones used by defendant in her apartment; (2) exclusion of testimony about a statement the victim allegedly made several months before his death, proffered by the defense under the hearsay exceptions for state of mind and statements against penal interest, N.J.R.E. 803(c)(3) and 803(c)(25); (3) alleged prosecutorial misconduct in summation, in which the prosecutor commented about the excluded defense evidence and also speculated about some facts without adequate support in the circumstantial evidence; and (4) jurors' knowledge of an internet Court TV message board and of blogs discussing the jurors. 3-16-11

STATE OF NEW JERSEY v. BOYCE SINGLETON, JR. A-1782-08T4

STATE OF NEW JERSEY v. BOYCE SINGLETON, JR. A-1782-08T4 02-28-11

At trial, defendant did not dispute shooting and stabbing the victim to death but instead asserted an insanity defense. Defendant testified and presented other evidence to suggest his murderous actions were brought about by a delusional deific command. In appealing his conviction, defendant argued that the jury instructions were incomplete. Even though defendant did not make this argument until he filed a post-trial motion, the court reversed and remanded for a new trial because the absence of the amplified instruction required in these circumstances by State v. Worlock, 117 N.J. 596 (1990), and State v. Winder, 200 N.J. 231 (2009), was capable of producing an unjust result. In such an instance, a judge must instruct that a defendant may not be held responsible -- even if he understands his actions are contrary to law -- where a delusional deific command could be objectively recognized to confound his understanding of the difference between lawful behavior and a moral imperative.

C.M.F. v. R.G.F. A-4826-08T2

C.M.F. v. R.G.F. A-4826-08T2

Defendant admittedly shouted offensively coarse names at his wife at their children's basketball game but argued that he was motivated by anger rather than an intent to harass her. Pursuant to State v. Hoffman, 149 N.J. 564 (1997) and N.J.S.A. 2C:33-4(a), the requisite intent was "to disturb, irritate or bother." We affirm the final restraining order against defendant because his anger did not negate an intent to harass and, considering the totality of the circumstances, the evidence supported the conclusion that defendant's purpose in directing the offensively coarse language at plaintiff was to harass her. 2-25-11

DOUGLAS TRAUTMANN, ET AL. v. CHRIS CHRISTIE, ETC. A-3139-09T3

DOUGLAS TRAUTMANN, ET AL. v. CHRIS CHRISTIE, ETC. A-3139-09T3

This appeal challenges Chapter 37 of the Laws of 2009 which requires a driver under the age of twenty-one who holds a permit or provisional license to display a decal so indicating on the automobile he or she drives. We hold that a person's age or age group is not "personal information" protected under the Federal Drivers Privacy Protection Act, 18 U.S.C.S. §§ 2721-2725 and that Chapter 37 is therefore not preempted by the federal act. We also reject allegations that Chapter 37 violates the affected driver's rights to equal protection and freedom from unreasonable search and seizure. 2-22-11

STATE OF NEW JERSEY v. EMMANUEL MERVILUS A-5812-07T3

STATE OF NEW JERSEY v. EMMANUEL MERVILUS A-5812-07T3

Admission of a polygraph expert's testimony, which was couched in terms of "innocent" and "guilty" test takers, was plain error and warranted reversal of defendant's conviction. If the State intends to rely on polygraph test results at the retrial, it must first establish the reliability of polygraph evidence at a Frye hearing, as required by State v. A.O., 198 N.J. 69 (2009). 02-15-11

State v. Dashawn Miller (A-94-09)

State v. Dashawn Miller (A-94-09)

(1) The trial court did not err in replaying video- recorded witness testimony at the jury’s request; (2) the jury charge concerning defendant’s decision not to testify was not plain error; and (3) the court mistakenly did not address the Yarbough factors and its reasoning for imposing consecutive sentences cannot be sufficiently discerned from the record. Thus, defendant’s conviction is affirmed and the case is remanded for resentencing.

State v. Jason Shelley (A-109-09)

State v. Jason Shelley (A-109-09)

The Appellate Division correctly vacated defendant Jason Shelley’s conviction under N.J.S.A. 2C:35-7 for distributing illicit drugs within 1,000 feet of a school because the inclusion of a small kindergarten class in a day care center does not transform the center into an elementary school for purposes of construing and applying the statute.

State v. Jamiyl Dock (A-8-10)

State v. Jamiyl Dock (A-8-10)

Artwell’s ruling presumptively banning the use of

restraints on witnesses constitutes a new rule of law

with prospective application 3-8-11

State v. Eduardo McLaughlin (A-68-09)

State v. Eduardo McLaughlin (A-68-09)

Because the state of mind of the declarant of the

hearsay offered here was not directly relevant to the

prosecution of defendant and the hearsay statement

itself, without redaction, imputed to defendant the

intent to commit a crime, its admission was error. 3-3-11