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Friday, July 29, 2011

State v. Cabbell/State v. Calhoun (A-89/90-09; 065129) 7-26-11

7-26-11 State v. Timyan Cabbell/State v. John Calhoun (A-89/90-09; 065129)

Both defendants were denied their federal and state constitutional rights to confront Karine Martin, a key State’s witness, before the jury. For that reason, Martin’s out-of-court statement to the police incriminating defendants should not have been read to the jury and the admission of that statement was not harmless error.

State v. Hess (A-113-09; 066015) 7-21-11

7-21-11 State v. Marie Hess (A-113-09; 066015)

Defendant was denied her constitutional right to the effective assistance of counsel because her attorney failed to present and argue mitigating evidence at sentencing. Also, the plea agreement provisions that restrict the right of counsel to argue for a lesser sentence are void.



The principal issue in this is case is whether the personal use defense for manufacturing a controlled dangerous substance, N.J.S.A. 2C:35-2, applies to the growing of marijuana under N.J.S.A. 2C:35-5. After reviewing the relevant statutory language, as well as the purpose for the personal use exemption, we affirm the trial court's determination that there is no personal use exemption for growing marijuana.

Tuesday, July 26, 2011




DOCKET NO. A-1323-10T3






Submitted June 7, 2011 – Decided June 24, 2011

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Municipal

Appeal No. 40-2010.

Thomas D. Williamson, appellant pro se.

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Brian D. Gillet,

Assistant Prosecutor, of counsel; Jason

Seidman, on the brief).


Following a trial de novo in the Law Division, defendant Thomas D. Williamson appeals from an October 12, 2010 order that found him not guilty of improper passing, N.J.S.A. 39:4-85, but guilty of careless driving, N.J.S.A. 39:4-97. For the reasons that follow, we reverse.

The facts of this case are not in dispute. On the morning of February 11, 2010, defendant was driving in Spotswood, New Jersey. Although the weather was clear, the road remained "covered with snow and ice" from a storm the previous day. Defendant approached a slow-moving vehicle in a passing zone, signaled, and passed it on the left.

The maneuver was observed by Officer Michael Gardini of the Spotswood Police Department. Gardini "activated [his] overhead lights" and pulled defendant over. Defendant was issued two summonses: one for improper passing, and another for having an obstructed window.1

During defendant's trial in the Spotswood Municipal Court on March 30, 2010, Gardini acknowledged that he had observed defendant's vehicle pass another vehicle in a forty-mile-per-hour passing zone. He further stated that defendant "could have been" traveling "about 20 miles per hour." Nevertheless, Gardini maintained that "[t]he road conditions were unsafe to pass." On cross-examination, Gardini admitted that he had not measured the speed of either car and did not observe any "lack of control" in defendant's driving, but he issued the ticket because the pass was not "a safe maneuver."

After the State rested, defendant testified as follows:

There was a car on Main Street that I came up to. It was being driven . . . at about eight to ten miles an hour. There was snow and ice on the road. I . . . signaled to turn and pass because there were no cars at all coming [in] the other direction. The speed limit is 40 miles an hour and it is clearly marked as a passing zone because I go on that road twice a day every day, [and I am] very familiar with that road.

I had a long approach. I pulled out gently in front of the car that was going at about eight, ten miles an hour, passed the car, pulled in. The car had absolutely no fish-tail. There was nothing. It was already past sunrise. There was ice . . . on the road, but there was also water on the road. Passed the car, pulled in, did not exceed the speed limit of about 20 miles an hour. When I pulled in in front of the other car, [I] had total control of the car the entire time.

Following closing arguments, the municipal judge rendered an oral decision. He found defendant guilty of improper passing and provided the following explanation:

I do detect, Mr. Williamson, that on your behalf you seem to have this idea that because the car in front of you was going slowly and other vehicles on the road were going slowly that that gives you the right to pass that vehicle. You're forgetting the fact that the statute does require that you do so with safety. And the fact that your vehicle wasn't fish-tailing doesn't mean that the officer shouldn't make an observation that the passing was not done safely.

In this instance, Officer Gardini clearly . . . made a determination that the weather was clear, but the roads were snow covered. There had been a heavy snow. The roads had been plowed, but they were still snow covered. And the reason why all the other vehicles on the road were going eight to ten miles an hour, as you suggested, and not going faster is because the road conditions were such that going faster could be a dangerous condition. And that's the condition that Officer Gardini found when he saw you.

It's not okay to say that the vehicle in front of me is going slowly and, therefore, I'm able to pass him and I kept my vehicle under control. You can only pass him when you can do so safely and the officer made the determination [that] you may have been lucky this time, but you wouldn't have been lucky the next time, perhaps. So he made that determination.

I do find his testimony credible. I find that it's incredible that you, at the time of this event, would take it upon yourself to pass these vehicles and find that would be okay. So I am going to find you guilty of that charge.

Defendant appealed the conviction to the Law Division, which heard oral arguments on September 21, 2010. In a written decision dated October 12, 2010, the court found that "defendant's operation [of the vehicle] was unsafe and without due caution, based upon the conditions." However, it determined that he "should [have been] charged with careless driving underN.J.S.A. 39:4-97 rather than improper passing under N.J.S.A. 39:4-85." Therefore, the court modified the complaint pursuant to Rule 3:23-8(c) and found defendant guilty of careless driving.2 An order memorializing the decision was entered the same day.

On appeal, defendant asserts that the State failed to prove the elements of careless driving beyond a reasonable doubt. We agree.

Our review of the Law Division's decision is limited. We may not "engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). Instead, we consider only whether "the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964).

N.J.S.A. 39:4-97 states: "A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving." Because careless driving is a quasi-criminal offense, the State must prove each element beyond a reasonable doubt. See State v. Badessa, 185 N.J. 303, 312 (2005) (noting that beyond a reasonable doubt "is the standard governing . . . quasi-criminal offenses prosecuted in municipal court").

In this case, the evidence presented by the State was insufficient to establish that defendant was driving his vehicle "in a manner so as to endanger, or be likely to endanger, a person or property." N.J.S.A. 39:4-97. Defendant was driving under the speed limit; the maneuver occurred in a legal passing zone; and there was no evidence that defendant's vehicle was being driven in an unsafe manner. Given these facts, we find that the State failed to prove defendant's guilt beyond a reasonable doubt. Cf. State v. Lutz, 309 N.J. Super. 317, 327 (App. Div. 1998) (reversing a conviction for careless driving where "[t]he State presented no evidence indicating that defendant had been speeding, driving too fast for the wet road conditions, distracted or otherwise driving without due caution and circumspection").


1 According to Gardini, "the rear of the vehicle was still covered with a heavy amount of snow." The obstructed view ticket was dismissed by the municipal court.

2 In relevant part, Rule 3:23-8(c) states that when considering a municipal appeal, the Law Division may "amend the complaint by making the charge more specific, definite or certain, or in any other manner, including the substitution of any charge growing out of the act or acts complained of or the surrounding circumstances of which the court from whose judgment or sentence the appeal is taken had jurisdiction."

STATE OF NEW JERSEY V. WALKER A-4672-08T1 June 28, 2011



DOCKET NO. A-4672-08T1






Submitted June 16, 2011 - Decided June 28, 2011

Before Judges Fisher and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2693.

Yvonne Smith Segars, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).


Following his unsuccessful motion to suppress evidence, which was seized during a warrantless search of his residence, defendant pled guilty to two counts of third-degree possession of a controlled dangerous substance (CDS) with the intent to distribute, N.J.S.A. 2C:35-5a(1), and one count of third-degree CDS possession with the intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1. Defendant was sentenced to three concurrent and extended six-year prison terms, subject to three-year periods of parole ineligibility.

Defendant appealed, arguing:



In light of our disposition of Point I, we need not reach Point II.

With regard to the denial of defendant's suppression motion, the record reveals that the judge conducted an evidentiary hearing at which only a police officer testified. The officer testified that a tip was received from a confidential informant, who had provided reliable information at least ten times in the past. The informant advised that a black male was selling heroin, cocaine, and marijuana from a specified apartment on Riverview Court in Newark. The judge described what occurred after police officers arrived at that location:

Officer Rios knocked on the apartment door. The door was opened by a black male, later identified as [defendant]. He was wearing blue jeans, a white tee shirt and was smoking a marijuana cigarette. Officer Rivera began to approach the door with his badge visibly displayed around his neck. After seeing Officer Rivera's badge, [defen-dant] tossed the marijuana cigarette inside the apartment and attempted to close the door and run into the apartment. Officer Rios, however, kept the door from closing and apprehended [defendant] inside of the apartment. Officer Rivera then retrieved the marijuana cigarette from the living room floor and placed [defendant] under arrest.

Once inside, the officers observed materials that appeared to be cocaine and other contraband.

Defendant does not dispute these facts -- or, at least, recognizes that our standard of review requires that we defer to these findings, see, e.g., State v. Elders, 192 N.J. 224, 244 (2007) -- but instead argues that, as a matter of law, the circumstances did not provide a sufficient basis for the officers' entry into his residence. We agree.

The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed."United States v. United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed.2d 752, 764 (1972). A warrantless search of a person's home is "presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed.2d 639, 651 (1980). This "basic principle of Fourth Amendment law" is also "a fundamental precept" of New Jersey's constitution. State v. Henry, 133 N.J. 104, 110, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed.2d 436 (1993). To justify a warrantless search of a home, the State must establish that police had probable cause and that exigent circumstances excused the need to seek a warrant. Welsh v. Wisconsin, 466 U.S. 740, 741, 104 S. Ct. 2091, 2093, 80 L. Ed.2d 732, 738 (1984); see also Bolte, supra, 115 N.J. at 585–86. Because the confidential informant's tip did not establish probable cause and the exigent circumstances were police-created, we reverse the denial of defendant's suppression motion.


The State must first establish that police had probable cause to justify a warrantless home entry. Ibid. Probable cause, which is defined as "a well grounded suspicion that a crime has been or is being committed," State v. Basil, 202 N.J. 570, 585 (2010), requires "'more than a mere suspicion of guilt' but less evidence than is needed to convict at trial," State v. Brown, 205 N.J. 133, 144 (2011) (quoting Basil, supra, 202 N.J. at 585). Probable cause is established by examining the "totality of the circumstances"; "the court must make a practical, common sense determination whether, given all of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. O'Neal, 190 N.J. 601, 612 (2007) (internal quotation omitted).

"Information that police receive from confidential informants may" establish probable cause if there is "substantial evidence in the record to support the informant's statements." State v. Keyes, 184 N.J. 541, 555 (2005). In analyzing a tip, a court must examine the informant's "veracity and basis of knowledge." Ibid. Veracity "may be satisfied by demonstrating that the informant has proven reliable in the past," but "past instances of reliability do not conclusively establish an informant's reliability"; instead, the "current evidence must give the court an opportunity to make an independent evaluation of the informant's present veracity." Ibid. Basis of knowledge examines if "the informant obtained his information in a reliable manner," and "the court must decide whether the tip reveals 'expressly or clearly' how the informant became aware of the alleged criminal activity." Id. at 555–56. Without discovering how the informant obtained the information, basis of knowledge can be established "if the nature and details revealed in the tip . . . imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source." Id. at 556. Lastly, "an essential part of the determination of probable cause" is independent police corroboration. Id. at 556.

Here, the tip did not establish probable cause to enter defendant's home. First, although the confidential informant provided reliable information on ten previous occasions, this does not conclusively establish veracity. See id. at 555. In fact, the "current evidence" does not give the court "an opportunity to make an independent evaluation of the informant's present veracity." Ibid. The informant told the police that a black male was selling heroin, cocaine, and marijuana from a specific apartment, and he explained who would answer the door and how the transaction would occur; a black male did answer the door. This information does not allow the police to make an independent evaluation of the informant's present veracity because the only thing that was verified was that a black man answered the door of a specific apartment. In addition, the record does not reveal how the informant became aware of "the alleged criminal activity." See id. at 556. It does not reveal whether the informant purchased drugs from defendant, whether he saw someone purchase drugs from defendant, or whether he heard about defendant from a third party. Furthermore, this information does not imply that "the informant's knowledge . . . is derived from a trustworthy source." Ibid. Importantly, the police never corroborated the information by staging a controlled buy.

Similar tips have not been found to create probable cause to justify warrantless home entries in other cases. In State v. Lewis, 116 N.J. 477, 479 (1989), an informant deemed reliable told police he had information about a person selling narcotics. The police met the informant who said he "recently left" the defendant's apartment where he observed "narcotics on the kitchen table and other paraphernalia." Id. at 480. The informant also stated that defendant and others were packaging drugs in the apartment for distribution. Ibid. Soon after, the police arrived at defendant's apartment, and an officer knocked on the door.Ibid. A man asked "who is it?," and the officer responded "it's Tony." Ibid. Defendant "opened the door, observed [the officer] in uniform, and attempted to close the door," but the officer "stuck his foot in the door" and entered. Id. at 480–81. The court determined that "[t]he content of the informant's tip . . . fell short of 'a clear showing of probable cause'" for several reasons, including: (1) "the informant was described as 'very' reliable without any further evidence of his credibility"; (2) "[h]is reference to 'narcotics on the kitchen table' omitted any indication of type, quantity, or value"; and (3) "he was unable to identify any occupants of the apartment." Id. at 486–87.

In another case, an informant told police that a "black male named Bob, dressed in blue, was selling heroin from a certain address in Newark." State v. Hutchins, 116 N.J. 457, 459 (1989). Two plain-clothed officers went to the address, and the defendant, a black male wearing a blue jogging suit, answered the door; when the officers tried to buy drugs, the defendant did not respond, but the officers noticed that defendant's right fist was clenched to possibly hide narcotics. Ibid. The officers identified themselves and defendant "turned around and fled into the house," with the officers in pursuit. Ibid. The Court "disagree[d] with the trial court's conclusion that the facts gleaned from the informant were sufficient to establish probable cause . . . ." Id. at 474.

In a recent case, we considered a citizen's call to the police "to report people arguing and selling drugs and a possible gunshot." State v. Jefferson, 413 N.J. Super. 344, 349–50 (App. Div. 2010). The citizen described a red Grand Am, told the police its license plate number, and said that "an African-American man was involved, describing his skin tone and head covering." Id. at 350. Police went to the house where the car was registered and saw the defendant peering out the front door; they approached the door and told the defendant to show his hands. Ibid. The defendant complied and showed his hands around the door, but the officers were "still unable to see his waist area." Ibid. As the defendant stepped back from the door, it opened slightly, and one of the officers "wedged herself into the opening." Ibid. The defendant attempted to close the door, and he and the officer began to struggle. Id. at 350–51. Other officers pushed the door open, entered the hallway, and arrested the defendant. Id. at 351. We found that "the tip and corroborating evidence were not sufficient to establish probable cause." Id. at 353.

In another case, the Essex County prosecutor's office received a tip that drugs were being sold at a specific address.State v. Rice, 251 N.J. Super. 136, 137 (App. Div. 1991). Officers placed the house under surveillance and observed a man "approach the house and enter a screened . . . porch." Ibid. "A door to the interior of the house opened for . . . one minute and thereafter the" man left. Ibid. The officers then observed a couple enter the house and leave shortly thereafter. Id. at 138. Subsequently, the police knocked on the door and identified themselves after it opened. Ibid. The police heard scurrying inside the house and someone shout "police"; someone tried to push the door closed, but the police "pushed the door open, entered the house, found drugs . . . and made arrests." Ibid. We determined that the "police did not have probable cause to believe that drugs were being sold . . . when they approached the house and knocked on the door" because their information "was limited to an anonymous telephone tip and the visits" by the man and the couple. Id. at 139. In addition, we declared that the occupants of the house had a right to close the door and "bar the police from physical or visual access to the interior of their home." Id. at 144.

These cases demonstrate that a mere tip that a person is selling narcotics, without sufficient information to determine the informant's veracity and basis of knowledge, is not enough and compels our conclusion that the officers, here, did not have probable cause to enter defendant's home.1


A warrantless entry into a home also requires exigent circumstances. See Welsh, supra, 466 U.S. at 741, 104 S. Ct. at 2093, 80 L. Ed. 2d at 738; see also Bolte, supra, 115 N.J. at 585–86. Courts have "identified several exigencies that may justify a warrantless search of a home" as including "the need 'to prevent the imminent destruction of evidence.'" Kentucky v. King, __U.S. __, __ S. Ct. __, 179 L. Ed.2d 865, 875 (2011) (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 1947,164 L. Ed.2d 650, 657 (2006)); see also Lewis, supra, 116 N.J. at 484; Hutchins, supra, 116 N.J. at 484. This is "the most frequently relied on exigent circumstance in drug cases." Lewis, supra, 116 N.J. at 484.

"Whether exigent circumstances exist to justify a warrantless home search or seizure is highly fact-dependent," State v. De La Paz, 337 N.J. Super. 181, 195 (App. Div.), certif. denied, 168 N.J. 295 (2001), requiring consideration of the following factors:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause[;] and (9) the time of the entry.

[Id. at 195–96 (internal quotation omitted).]

Yet, police "may not rely on" exigent circumstances, such as "the need to prevent [the] destruction of evidence[,] when that exigency was 'created' or 'manufactured' by" police conduct. King, supra, __ U.S. at __, __ S. Ct. at __, 179 L. Ed. 2d at 875;see also De La Paz, supra, 337 N.J. Super. at 196 (holding that "[p]olice-created exigent circumstances which arise from unreasonable investigative conduct cannot justify warrantless home entries").

Here, if exigent circumstances existed, they were police-created. The plain-clothed officers knocked on defendant's door at approximately 11:00 p.m. Defendant answered, smoking a marijuana cigarette, and observed a police badge hanging around the neck of one of the officers, prompting his attempt to close the door and run back into the apartment. Arguably, this created an exigent circumstance because it is likely defendant was running back into his apartment to destroy any drugs he may have had. Applying the factors in De La Paz, the police, thus, had a reasonable belief that contraband would be removed. Id. at 195. In addition, defendant was aware that police were "on [his] trail" because they were at his door and the contraband was certainly destructible. Ibid.2 And the entry occurred at night. Id. at 196. However, even though it may be concluded that exigent circumstances existed, they were police-created because the exigency did not arise until the officers made their presence known.See ibid. In other words, prior to defendant seeing the officer's badge, police were not faced with "exceptional conditions" creating exigent circumstances. Lewis, supra, 116 N.J. at 488.

The order under review is reversed and the matter remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1Defendant also correctly argues that the State's claim of probable cause is not enhanced because defendant was smoking a marijuana cigarette when he answered the door. In Welsh, supra, 466 U.S. at 753, 104 S. Ct. at 2099, 80 L. Ed. 2d at 745, the Court held that "it is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor." Our Supreme Court has recognized that disorderly persons offenses -- and possession of marijuana for personal use is a disorderly persons offense, N.J.S.A. 2C:35-10(a)(4) -- "are within the category of 'minor offenses' held by the Welsh Court to be insufficient to establish exigent circumstances justifying a warrantless home entry." Bolte, supra, 115 N.J. at 597. Thus, the "need to search for evidence of possession of marijuana or to arrest the possessors therefore d[oes] not constitute 'exigent circumstances'" justifying the warrantless entry of a home. State v. Holland, 328 N.J. Super. 1, 10 (App. Div.), certif. denied, 164 N.J. 560 (2000).

2"[D]rugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain." King, supra, __ U.S. at __, __ S. Ct. at __, 179 L. Ed. 2d at 876.

Friday, July 22, 2011

STATE OF NEW JERSEY V. MARTINEZ A-4351-09T3 May 12, 2011



DOCKET NO. A-4351-09T3






May 12, 2011

Submitted April 12, 2011 - Decided

Before Judges Baxter and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 78-2009.

Antonio J. Toto, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).


Defendant Jesse Martinez appeals from a May 12, 2010 Law Division judgment of conviction entered following a de novo trial based upon the record of proceedings in the East Brunswick Municipal Court. The Law Division found defendant guilty of driving while intoxicated (DWI),N.J.S.A. 39:4-50. Because the Law Division reached that result based on a misapprehension that it was obliged to defer to the decision of the municipal court, rather than conduct an independent assessment of the record, we reverse defendant's conviction and remand for further proceedings.


Defendant stipulated in both the municipal court and in the Law Division that his sole challenge to the State's proofs on the DWI charge was whether the East Brunswick Police Department had observed him for the twenty minutes required by State v. Chun, 194 N.J. 54, 129, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed.2d 41 (2008), before administering the Alcotest. We therefore confine our discussion accordingly. At the trial in the municipal court, the State presented the testimony of Officer Wade Gordon, who was first certified in 2004 to administer the Alcotest, and who was recertified in 2006 and in 2008. Because Gordon is the one of the few police officers in the East Brunswick Police Department so certified, he is on call twenty-four hours per day to perform the test; and has administered the Alcotest approximately 150 times over the years since the Alcotest has been in effect.

Gordon explained that if he is called by an arresting officer and asked to perform the Alcotest, the arresting officer will already have the suspect handcuffed to the bench in the booking room at police headquarters by the time Gordon arrives. He described his standard procedure as follows, "I'll check their oral cavity and make sure there's no gum or any other object in the mouth and then just observe them for 20 minutes to make sure that they don't belch." After the twenty minutes has elapsed, he "take[s] them into the Alcotest room and administer[s] the tests."

In the case of defendant Martinez, Gordon was called to headquarters on May 10, 2008 by the arresting officer, Patrolman Unkel, to administer the Alcotest. When Gordon arrived at police headquarters, defendant was already "on the bench in the booking room and [he] checked [defendant's] mouth and . . . observed him for 20 minutes." Gordon noted that defendant's "oral cavity was clear." According to Gordon, he stood facing defendant "face to face" from six feet away while defendant was seated on the bench. Once the twenty-minute period had elapsed without defendant belching or doing anything else that would run afoul of the twenty-minute waiting period required by State v. Chun, Gordon uncuffed defendant from the bench and instructed defendant to walk in front of him into the Alcotest room. Gordon explained that he was "able to observe him" during the time that the two were walking the short distance to the Alcotest room.

On cross-examination, Gordon conceded that he did not include in his police report the time defendant was arrested, the time defendant was brought to headquarters by Patrolman Unkel or the time that the Alcotest began. He also conceded that he had not noted in his report that he observed defendant for twenty minutes before beginning the test. When asked by the prosecutor why he had not included his twenty-minute observation of defendant in his report, Gordon stated "[i]t's just a standard procedure that is done every time I run the breath test[.] [T]hat's why it's maybe not indicated on there." In answer to the prosecutor's question, "Is it something that's so standard at this point that you don't feel the need to actually record it," Gordon answered "[t]hat is correct." Gordon explained that defendant was arrested at 2:30 a.m., after which Unkel had, according to a document signed by Unkel, administered Miranda1 warnings to defendant at 3:00 a.m. in the booking room, and the Alcotest was started at 3:22 a.m.

Defendant testified, asserting that he was handcuffed to the bench in the booking room for "close to an hour" and he could hear Unkel and Gordon in another room engaged in "a lot of small talk . . . mostly about their weightlifting." Defendant maintained while he was in the booking room for that period of time, he could not see Gordon and Gordon could not see him. At the end of an hour, Gordon came in, released him from the handcuffs and brought him into the room where the breath test was performed. He maintained that neither officer had conducted any face-to-face observation of him before the Alcotest began, much less for the twenty minutes that Gordon claimed.

On cross-examination, defendant stated that the roadside sobriety tests were completed at 3 o'clock, the ride back to headquarters consumed fifteen minutes, five minutes elapsed from the time he and Patrolman Unkel arrived at police headquarters before Unkel handcuffed him to the bench, and he was seated on the bench for "about an hour" before the breath test began. He agreed that his timetable "would bring you to around 4:15." When confronted with the fact that the Alcotest was administered at 3:22 a.m., and his own time estimates would have caused the test not to begin until 4:15 a.m., defendant stated that he did not actually know whether the Alcotest began at 3:22 a.m., as Gordon had claimed. Defendant asserted that the test began much later, although he admitted he was not wearing a wrist watch and had no method of determining the actual times.

At the conclusion of defendant's testimony, the State recalled Officer Gordon, who reiterated that it was his "normal procedure" to stand next to the suspect seated on the bench and watch him continuously for twenty minutes, which he had done in this case. When asked by the judge whether any of the 150 Alcotest reports he had prepared in the past state whether he watched the suspect for the required twenty minutes, Gordon answered no.

At the conclusion of the testimony, the municipal court judge summarized the testimony in considerable detail, after which he reached the following conclusions:

All right. What I have here is I have, Mr. Martinez, I think you're a fine young man. I think that your times are way off. I don't think it's possible that you were brought there and sat there for that time and it was given at 4:30 yet every document prior to that was at 3:30.

There are too many people putting down the times for you to be correct in your analysis. So I understand that when you're sitting back there you're going through a lot and it's a nervous time and probably it seems like an hour[,] but could be a very short time.

And I believe Officer Gordon when he says he observed you for 20 minutes. And it certainly is possible if he said he saw the Miranda warnings being given at 3:00 and then brought you in at 3:22, that makes total sense to me.

And that 22 minute issue, I believe that Officer Gordon did observe 22 minutes at least prior to your [A]lcotest and therefore your motion to suppress the [A]lcotest reading based upon the failure to observe for 20 minutes is denied.

Defendant stipulated that there was probable cause to arrest him on the DWI charge, and he also stipulated to the admission in evidence of the twelve "foundational documents" required by State v. Chun. After the State reserved its right to present testimony about the field sobriety tests if defendant's conviction were to be reversed on appeal,2 the judge sentenced defendant, imposing appropriate fines and penalties, suspending defendant's driving privileges for a period of three months,3 and requiring him to serve twelve hours in the Intoxicated Drivers Resource Center.

Defendant appealed his conviction to the Law Division. The proceedings on May 12, 2010 were brief, with neither attorney presenting any oral argument. Instead, the judge made the following findings of fact and conclusions of law, which we quote in their entirety:4

Jesse Martinez filed a municipal appeal and the appeal number is 78-2009. It was a municipal appeal out of East Brunswick Municipal Court. I looked at the transcripts and I can understand [defense counsel's] frustration as to what happened in Municipal Court especially since the new term of art in [Alcotest] cases have [sic] to do with 20 minute observation. That term of art was brought to the legal community's attention in theState v. Chun. Draeger5 when they made and manufactured the machine required a 20 minute observation so [defense counsel] found . . . the police officer's testimony to be less than credible especially since that word of art "20 minute observation" really wasn't in anybody's world in Municipal Court but it was in everybody's world with regard to the manufacturer's requirements of a police officer when performing the [Alcotest] and so I had denied the appeal.

I'm bound by the record below and it would seem that the judge below, [name of municipal court judge], found the officer to be credible on that point and the judge below found that 20 minute observation period had been conducted in accordance with the 20 minute rule so [defense counsel] filed the appeal and I gave a lot of consideration but based upon my function as a Superior Court judge reviewing the Municipal Court matter, I denied his application[.]

[(Emphasis added).]

On appeal, defendant raises the following claim:



Rule 3:23-8(a) provides for a de novo review on the record

when a municipal court conviction is appealed to the Law Division:

[T]he trial of the appeal shall be heard de novo on the record unless it shall appear that the rights of either party may be prejudiced by a substantially unintelligible record or that the rights of defendant were prejudiced below in which event the court to which the appeal has been taken may either reverse and remand for a new trial or conduct a plenary trial de novo without a jury.

A judge in a trial de novo must "make his own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197(1983). See also State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000); State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). "His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function in respect of defendant's guilt or innocence." Ross, supra, 189 N.J. Super. at 75.

Because the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472 (1999). However, the Law Division judge "need . . . give only due, although not necessarily controlling, regard to the opportunity of the municipal court judge to judge the credibility of the witnesses." Ross, supra, 189 N.J. Super. at 75. This is because the function of the Law Division is not "governed by the substantial evidence rule but rather [it engages in] an independent fact-finding function in respect of defendant's guilt or innocence." Ibid. (citing State v. States, 44 N.J. 285, 293 (1965); State v. Johnson, 42 N.J. 146, 157 (1964)).

By comparison, "when a defendant appeals from a judgment of [the Law Division] on an appeal from a municipal court, the appellate court will consider only the action of the [Law Division] and not that of the municipal court." State v. Joas, 34 N.J. 179, 184 (1961). Our review analyzes only whether there was sufficient credible evidence to uphold the decision of the Law Division. Johnson, supra, 42 N.J. at 162. We owe the Law Division's legal conclusions no deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Here, the Law Division judge appears not to have analyzed the record from the municipal court to make the independent findings of fact required by State v. Ross. Instead, the Law Division judge considered himself obligated to accept the factual findings of the municipal court judge whether he agreed with those findings or not, as evidenced by his statement that "the judge below found that 20 minute observation period had been conducted . . . but based upon my function as a Superior Court judge reviewing the Municipal Court matter I denied his application."

Because defendant's conviction in the Law Division is based upon a misapprehension of the applicable standard of review before that court, we vacate defendant's conviction and remand for further proceedings consistent with the principles discussed in this opinion. Jurisdiction is not retained.

Reversed and remanded.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).

2 We express no opinion on whether the State would be entitled to such a second trial.

3 Defendant's Alcotest reading was .09.

4 We note that defense counsel referred briefly to the judge having made comments on the record "last time." Because only the proceedings of May 12, 2010 have been transcribed, we asked both counsel whether there had been any other proceedings in the Law Division. Both assured us there had not.

5 The judge's reference to "Draeger" was to the manufacturer of the Alcotest machine, Draeger Safety Diagnostics, Inc.

Tuesday, July 19, 2011

State v. L.H. (A-31-09; 066436) 6-15-11

6-15-11 State v. L.H. (A-31-09; 066436)

The judgment of the Appellate Division is reversed and the matter is remanded to the Law Division (1) for the entry of an order (a) vacating the entire award of 2,145 days of gap-time credits originally granted on September 18, 2009 and (b) remanding defendant L.H. to serve the sentence imposed on that date without any credit for gap time; and (2) for the entry of a corrected judgment of conviction reflecting no days of gap-time credit.

State v. Calleia (A-32-10; 066446) 6-9-11

6-9-11 State v. George Calleia (A-32-10; 066446)

If a victim’s state-of-mind hearsay statements are relevant to show the victim’s conduct, and if such conduct also can give rise to motive when it is known or probably known to the defendant, then the statements are admissible for the purpose of establishing motive subject to the usual balancing under N.J.R.E. 403. Any error in this case stemming from the cumulative nature of the hearsay testimony is harmless.

State v. Gillispie (A-101-09; 064819) State v. Buttler 6-9-11

6-9-11 State v. Dwayne Gillispie (A-101-09; 064819) State v. Gregory Buttler

Although the admission at trial of other-crimes evidence that provided unnecessary details of an earlier crime was unduly prejudicial and was not outweighed by an probative value, the error was harmless because there was independent, overwhelming proof that defendants Gillispie and Buttler were guilty.

State v. Rose (A-111-09; 065010) 6-8-11

6-8-11 State v. Zarik Rose (A-111-09; 065010)

The disputed evidence was admissible under the New Jersey Rules of Evidence. It properly went to defendant’s motive, intent and plan, and the probative value of the evidence was not outweighed by its prejudice. In this appeal, the Court also ends the practice of invoking res gestae as an explanation for the admission of evidence.

State v. Hernandez (A-64-09; 064946) State v. Rose (A-65-09; 064945) 6-8-11

6-8-11 State v. Andrea Hernandez, a/k/a Andrea Rosario (A-64-09; 064946) State v. Derrick Wayne Rose, a/k/a Derrick W. Stewart (A-65-09; 064945)

Both defendants are entitled to precisely what Rule 3:21-8 provides: credits against all sentences “for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence” on each case. The Rule must be consistently applied to promote uniformity in sentencing; there is no room for discretion in either granting or denying credits.



In these consolidated appeals, two fourteen-year-old boys were adjudicated delinquent based on an offense that, if committed by an adult, would have constituted fourth degree criminal sexual contact, N.J.S.A. 2C:14-3. Because the victims were less than thirteen-years old, the Family Part directed the juveniles to register as sex offenders for the remainder of their lives as mandated by N.J.S.A. 2C:7-2b(2) and In Re Registrant J.G., 169 N.J. 304, 339 (2001).

The principal question we have been asked to determine is whether the conduct of these two juveniles constitutes "sexual contact" as defined in N.J.S.A. 2C:14-1d, or merely youthful "horseplay" that, although patently offensive, is nevertheless devoid of the sexual connotation underpinning the offense of criminal sexual contact. The core salient facts presented by the State established the two juveniles physically held down and placed their bare buttocks on the faces of the two victims, resulting in physical contact between their bare buttocks and the victims' faces. The trial court found the juveniles committed these acts for the purpose of degrading or humiliating the younger boys. This finding supports an adjudication of delinquency based on criminal sexual contact.

The Family Part erred, however, when it denied a post- conviction relief petition filed by the juvenile who stood for trial. Because the petition made a prima facie case of ineffective assistance of trial counsel, we remand for the court to conduct a Preciose hearing to resolve the factual and legal issues raised by the ttorney's inadequate performance.

We also remand the adjudication of delinquency of the juvenile who pled guilty because he was not fully informed of the registration requirements under N.J.S.A. 2C:7-2b(2) at the plea hearing. Pursuant to State v. Johnson, 182 N.J. 232, 244 (2005), the juvenile must demonstrate how the omission of this information "materially affected his decision to plead guilty."

Wednesday, July 13, 2011

STATE OF NEW JERSEY VS. EARLS A-2084-07T4 07-11-11


The use of cell phone site information, obtained by the police without a warrant from a suspect's cell phone provider to determine his general location, does not violate the Fourth Amendment or its counterpart in the New Jersey Constitution because a person has no constitutionally protected right of privacy in his general location on roadways or other public places.

STATE OF NEW JERSEY VS. WEIL A-5999-09T4 07-05-11


In this appeal, defendant urges us to revisit State v. Bringhurst, 401 N.J. Super. 421 (2008), and hold, in essence, that a defendant who files a Laurick post-conviction relief petition to obtain relief from enhanced penalties for driving while intoxicated based on a purported uncounseled prior DWI conviction is absolved from establishing a prima facie case for relief where her time delay has resulted in destruction of most of the records pertaining to the prior conviction. We decline to do so and affirm defendant's conviction.

Tuesday, July 12, 2011



There is no broad "nuisance abatement" exception under the community caretaking doctrine to the general rule that warrantless entries into private homes are presumptively unreasonable. In assessing the constitutional tolerance of entry into and search of a home in response to a noise complaint, we employ the "objectively reasonable test," balancing the nature of the intrusion necessary to handle the perceived threat to the community caretaking concern, the seriousness of the underlying harm to be averted, and the relative importance of the community caretaking concern.

We hold the test was not met where police officers, responding in the early morning hours to a noise complaint, lawfully entered the home, but thereafter fanned out and searched the entire residence for someone in control, while other less intrusive options were available and no compelling need was presented.

VOELLINGER VS. DOW, ETC. A-5768-09T3 06-22-11


In this appeal, the court examined whether or to what extent the Division of Criminal Justice may be liable for losing or destroying evidence properly seized years earlier during a criminal investigation. Although the court affirmed the dismissal of plaintiffs' action, the court rejected the trial judge's determination that plaintiffs were limited to seeking replevin and concluded that the judge should have found that a gratuitous bailment was created that imposed a gross negligence standard, which the Division did not breach as a matter of law.