STATE VS. DIANA M. PALMA A-3473-10T3
Wednesday, June 27, 2012
STATE VS. DIANA M. PALMA A-3473-10T3
IN THE MATTER OF THE EXPUNGEMENT PETITION OF J.B. A-1564-11T2
IN THE MATTER OF THE EXPUNGEMENT PETITION OF J.B.
A-1564-11T2
In this appeal from the denial of a petition to expunge juvenile adjudications and an adult conviction, we construe the 1980 statute permitting expungement of juvenile adjudications. L. 1980, c. 163, codified at N.J.S.A. 2C:52-4.1. We conclude the trial court misinterpreted the unnumbered paragraph in N.J.S.A. 2C:52-4.1(a), "For purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult." In view of the legislative history of the 1980 statute, and canons of statutory construction, we construe the quoted
sentence to apply only to applications to expunge juvenile adjudications under N.J.S.A. 2C:52-4.1(a). The 1980 law was intended to allow expungement of juvenile adjudications, which was not otherwise permitted; there was no evidence the Legislature intended to make expungement of adult convictions more difficult by treating juvenile adjudications as if they were adult convictions.
STATE VS. THOMAS NEVIUS A-5438-07T4
STATE VS. THOMAS NEVIUS
A-5438-07T4
At
issue is the admissibility under N.J.R.E. 803(c)(25) (declarations against
interest) of an out-of-court statement by a defendant's non-testifying
confederate that supposedly implicated
the declarant in a felony murder and exculpated defendant by naming another as
the co-perpetrator of the crime.
STATE VS. MARLTON PLAZA ASSOCIATES A-2164-10T4
STATE VS. MARLTON PLAZA ASSOCIATES
A-2164-10T4
As to the scope of damages awardable to
condemnees at a just compensation trial where a highway improvement project involves
both a modification of highway access and a
condemnation,
we held that a claim for damages arising from the internal effects of the
access modification, (i.e., diminution in value due to impacts caused by poor
vehicle maneuverability), which the property owners consented to and left them
with
reasonable alternate access, may not be appropriately considered in the
condemnation trial concerning the State's acquisition phase. 06-08-12
STATE VS. PATRICK DEFRANCO A-2054-10T4
STATE VS. PATRICK DEFRANCO A-2054-10T4
We held that a defendant school teacher,
who had previously sexually assaulted a student, did not have a reasonable expectation
of privacy in his cell phone number when, at an earlier time, he had given his
prior number to the student, did not seek to hide the new number from him, and
had disclosed the number to the school for inclusion in its Staff Directory and
to multiple parents and students in connection with a school trip
that defendant was chaperoning.
We found further that the school's Resource Officer, a policeman
functioning in that dual capacity, who was aware of the student's allegations
of sexual assault, acted reasonably in requesting the number from the secretary
to the school's principal, and that the school acted reasonably in disclosing
the number to the officer. As a consequence,
we affirmed the trial court's decision to deny defendant's motion to suppress
the transcript of a telephone call between him and the student that was
intercepted by the police as a means for corroborating the student's claim of sexual
assault while a juvenile. 06-08-12
STATE VS. RENARD JOSEPH A-5651-09T1
STATE
VS. RENARD JOSEPH A-5651-09T1
In
this appeal of a defendant's triple armed robbery convictions where
identification was a principal issue, we held that despite the lack of expert
testimony, a proper foundation
was
laid for the computer-based photo retrieval system used to obtain the three
victims' out-of-court identifications and that such a procedure, akin to a mug
shot book, was not invalidated by police failure to record and retain the
photographs viewed by the witnesses. 06-04-12
STATE VS. RAYMOND D. KATES A-3907-10T1
STATE
VS. RAYMOND D. KATES
A-3907-10T1
We
conclude the trial court mistakenly exercised its discretion in denying
defendant a continuance to enable him to retain counsel of his choice, after he
learned on the eve of
trial
that the assistant deputy public defender who had been representing him was
about to deployed for active military service. Although the right to counsel of choice is not
absolute
and may be balanced against the court's interest in managing its calendar, the
trial court failed to weigh the appropriate factors governing the discretionary
decision whether
to
grant the requested continuance.
The availability of competent counsel not of defendant's choice was an
insufficient basis for denying the continuance. As deprivation of counsel of choice is a structural error
not subject to harmless error analysis, reversal of defendant's conviction and
a new trial is mandated. 05-25-12
STATE VS. EDWARD RONALD ATES A-2308-09T3
STATE VS. EDWARD RONALD ATES
A-2308-09T3
Defendant appealed his conviction for the murder of his ex-son-in-law, arguing the unconstitutionality of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34, because it permitted the interception of telephone calls between individuals located entirely outside New Jersey. The court rejected this argument, finding no infirmity so long as the listening post was located in New Jersey.
Defendant also argued that the State should have been barred from using all intercepted telephone calls because the State recorded a telephone call between defendant and his
attorney. The trial judge precluded the use only of the calls intercepted after the recording of the attorney-client communication and the court concluded this was an appropriate remedy for the reasons expressed in the trial judge's written opinion, State v. Ates, __ N.J. Super. __ (Law Div. 2009). 05-17-12
STATE VS. RYAN L. HODGE A-5961-10T1
STATE VS. RYAN L. HODGE
A-5961-10T1
In
this appeal, we granted leave to the State to consider the trial court's
interlocutory order suppressing a statement taken from defendant, a juvenile at
the time, shortly after his arrest for murder. Neither an attorney nor defendant's legal guardian were
present at the time the statement was taken. Nor had defendant had the opportunity to consult with an
attorney in advance of providing the statement. The motion judge accorded
pipeline
retroactivity to State in the Interest of P.M.P., 200 N.J. 166 (2009). We reverse and hold that P.M.P. is to
be applied prospectively.
P.M.P.
announced a new rule; its purpose is not furthered by retroactive application;
law enforcement officials, in good faith, have relied upon the old rule in
conducting custodial
interrogations
of juveniles; and retroactive application would have a significant impact upon
the administration of justice. 05-15-12
STATE VS. JAMES CRAFT A-5022-10T2
STATE VS. JAMES CRAFT
A-5022-10T2
The
primary issue in this case is whether the police violated defendant's
constitutional rights when they entered a bedroom in his mother's apartment
without a search warrant. We conclude
that the police officers' actions were objectively reasonable because the
officers had reason to believe defendant was in the bedroom, they knew he was
potentially armed and dangerous, and it was impracticable to obtain a search
warrant. We therefore reverse the order granting defendant's motion to suppress a
handgun and cocaine that were in plain view when the police entered the
bedroom. 05-14-12
STATE VS. KIWANIE SALTER A-4410-10T2
STATE VS. KIWANIE SALTER A-4410-10T2
Defendant
was indicted for, among other crimes, two counts of aggravated sexual assault
by oral penetration and two counts of criminal sexual contact. Each count alleged the conduct occurred
between September 2nd and September 5th, 2006, and the language in each was
identical.
The juvenile victim testified to the
various incidents that allegedly occurred and formed the basis of the
individual counts, although his testimony was somewhat inconsistent with that
given before the Grand Jury. In
her jury instructions, the judge did not differentiate what alleged conduct was
charged in each count. After an
extended sidebar discussion, and the prosecutor's ultimate assent, the judge
submitted a jury verdict sheet that similarly did not differentiate what
conduct was alleged in each of the four counts. The jury found defendant guilty of one count of aggravated
sexual assault, but not guilty
of
the other. It also found defendant
guilty of both counts of criminal sexual contact. 05-08-12
STATE VS. DAVID M. GIBSON A-1513-10T4
STATE
VS. DAVID M. GIBSON
A-1513-10T4
In
this appeal, defendant argued, among other things, that the trial judge erred
in denying his motion to suppress evidence seized from him following his arrest
for defiant trespass. The
court rejected this argument, concluding that the arresting officer
possessed probable cause that defendant had engaged in a defiant trespass even
though the property owner posted a "no loitering" instead of a
"no trespassing" sign. 05-08-12
STATE VS. JENNIFER LEE LOCASCIO A-5119-09T1
STATE
VS. JENNIFER LEE LOCASCIO
A-5119-09T1
Defendant
was convicted of vehicular manslaughter after a jury trial. The indictment stemmed from a one-car
accident in which defendant's boyfriend was killed after the car veered off the
road and struck a tree. The
pivotal issue at trial was whether, as the State contended, defendant was the
driver or whether, as the defense and its expert contended, the boyfriend was
the driver.
The State presented expert testimony
from the county medical examiner opining that defendant was the driver. During the course of his testimony, the
medical examiner rendered opinions, over defendant's objection, about the
probable movements of the occupants within the car as it decelerated and crashed,
including an analysis of how the passenger's body allegedly
"cushioned" the driver's body during the accident.
We reverse defendant's conviction and
order a new trial because the testimony of the medical examiner, who the State concedes
is not qualified as an expert in biomechanics or accident
reconstruction, prejudicially went beyond the scope of his expertise on a
crucial disputed issue. The
examiner's testimony should have been confined to the aspects of his expertise as a pathologist concerning the nature and causes of bodily
injury, and should not have delved into the biomechanical forces and movements
within the automobile. 05-04-12
STATE VS. ANTHONY ROSE A-0192-11T2
STATE VS. ANTHONY ROSE
A-0192-11T2
TOWNSHIP OF NEPTUNE VS. STATE OF NEW JERSEY A-5573-09T3
TOWNSHIP
OF NEPTUNE VS. STATE OF NEW JERSEY
A-5573-09T3
In this case, the Township of
Neptune sought a judgment declaring that the New Jersey Department of
Environmental Protection (NJDEP) was required to dredge the State navigational channels
in Shark River Bay by a date certain and identify a
site
for the temporary placement of the dredged materials. We conclude that: (1) the
Appellate Division has exclusive jurisdiction to consider this claim of agency
inaction and a
remand
is not required to compile a factual record; (2) mandamus will not lie to
compel the NJDEP to exercise its discretion in the specific manner requested; and
(3) relief is not warranted on the basis of implied contract, equitable estoppel,
the public trust doctrine, or public nuisance. 04-26-12
STATE VS. PAULO BARROS A-1288-10T2
STATE
VS. PAULO BARROS
A-1288-10T2
In
this case, the court previously applied Padilla v. Kentucky, 559 U.S. __, 130 S.
Ct. 1473, 176 L. Ed. 2d 284 (2010), and affirmed the grant of post-conviction
relief based on defendant's assertion that his attorney did not advise him that
his guilty plea in 2008 to drug distribution charges subjected him to mandatory
deportation. The Supreme Court
granted
the State's petition for certification and remanded for the court's
reconsideration in light of State v. Gaitan, __ N.J. __ (2012), which held that
Padilla announced a new rule
applicable
only to guilty pleas entered after Padilla was decided. In light of Gaitan, the court reversed
the grant of post-conviction relief but also stayed its judgment to allow
defendant to seek habeas corpus relief in federal court in light of the
Third Circuit's determination in United States v. Orocio, 645 F.3d 630 (3d Cir.
2011), that Padilla does not constitute a new rule. 04-20-12
TATE OF NEW JERSEY VS. RONALD L. JONES, JR. A-5186-10T2
STATE
OF NEW JERSEY VS. RONALD L. JONES, JR. A-5186-10T2
We
reverse defendant's drug distribution conviction, concluding that:1) the
testimony provided by the State's drug distribution expert, on whether
defendant possessed the cocaine
for
personal use or instead for distribution, ran afoul of the proscriptions in
State v.McLean, 205 N.J. 438 (2011), and State v. Odom, 116 N.J. 65 (1989); and
2) the admission of evidence that defendant possessed Oxycodone denied him a
fair trial, as he was not charged with that offense, and the State should not have
been permitted to use such N.J.R.E. 404(b) evidence to bolster its contention
that defendant possessed the cocaine with the intention of selling it. 04-17-12
STATE OF NEW JERSEY VS. BRIAN RICE A-3777-09T4
STATE
OF NEW JERSEY VS. BRIAN RICE
A-3777-09T4
Defendant,
an off-duty police officer, was convicted of second-degree official misconduct,
conspiracy to commit official misconduct, and tampering with physical
evidence. Pursuant to N.J.S.A.
2C:43-6.5(a), defendant faced a mandatory minimum term of five-years'
imprisonment. The judge sentenced
defendant as a third-degree offender, N.J.S.A. 2C:44-1(f)(2), reduced the mandatory
minimum pursuant to N.J.S.A. 2C:43-6.5(c)(2), and
imposed
a sentence of three years with a three-year period of parole ineligibility.
The State appealed and defendant
cross-appealed. We affirmed
defendant's conviction of official misconduct and tampering but reversed and
remanded for reconsideration of the sentence imposed.
N.J.S.A. 2C:43-6.5 was enacted in 2007
as part of a comprehensive legislative scheme affecting the pension rights of public
employees, as well as the forfeiture and sentencing
provisions
of the Code. N.J.S.A.
2C:43-6.5(c)(2) permits the judge to "waive or reduce the mandatory
minimum term of imprisonment required by" the statute if he "finds by
clear and
convincing
evidence that extraordinary circumstances exist such that imposition of a
mandatory minimum term would be a serious injustice which overrides the need to
deter such conduct in others."
This portion of the statute has not been the subject
of
a reported case.
We conclude the statute requires
application of a different standard than that which governs the exercise of the
judge's discretion in downgrading the offense pursuant to N.J.S.A.
2C:44-1(f)(2)
(permitting the judge to impose a sentence "one degree lower than that of
the crime for which [the defendant] was convicted" if "clearly
convinced that the mitigating factors substantially outweigh the aggravating
factors and . . . the interest of justice demands"). 4-16-12
Thursday, June 21, 2012
BURLINGTON COUNTY BOARD OF SOCIAL SERVICES VS. G.W. A-5974-09T2
BURLINGTON COUNTY BOARD OF
SOCIAL SERVICES VS. G.W.
A-5974-09T2
The issue raised in this appeal
is whether a county board
of social services may
terminate a recipient's General
Assistance (GA) and Emergency
Assistance (EA), which is provided
pursuant to the Work First New
Jersey Program, N.J.S.A. 44:8-107
to -145.5, based on the
recipient's eligibility for, rather than
actual receipt of, Social
Security Disability benefits (SSD).
The Board of Social Services
determined that the anticipated SSD
benefits placed his monthly
"countable income" above the maximum
limit to be eligible for GA and
EA benefits. Appellant did not
receive his first SSD check
until after termination of his GA
and EA benefits. We hold that, upon receiving
notification that
a GA or EA recipient has been
approved for SSD benefits,
pursuant to the
"prospective budgeting methodology" prescribed
in N.J.A.C. 10:90-3.11, the
Board of Social Services need not
wait until the recipient is in
actual receipt of SSD benefits
before adding the amount of
those benefits to the recipient's
countable income, and
determining whether GA or EA benefits
should be terminated. 03-27-12
State v. Reynaldo Galicia (A-79-10; 067018)
State v. Reynaldo Galicia
(A-79-10; 067018)
The
facts of this case, as developed in the trial
record, do not support a
passion/provocation finding
under N.J.S.A. 2C:11-4(b)(2). 6-19-12
State v. Buddy Randolph (A-87-10; 067218)
State v. Buddy Randolph (A-87-10; 067218)
When an appellate court orders reconsideration of
sentence or resentencing, the trial court should view
defendant as he stands before the court on that day
unless the remand order specifies a different and more
limited resentencing proceeding such as correction of
a plainly technical error or a directive to view the
sentencing issue from the vantage point of the
original sentencing. The Court does not infer such a
limitation in the circumstances of this case; thus,
defendant is entitled to present evidence of his post-
sentencing rehabilitative efforts at resentencing. 6-18-12
State v. Alnesha Minitee State v. Darnell Bland (A-70/71-10; 066771)
State v. Alnesha Minitee
State v. Darnell Bland
(A-70/71-10; 066771)
Under the circumstances of this case, the trial court
correctly denied the defendants’
motion to suppress
because the warrantless search
of the SUV that was
involved in the robbery fit
within the scope of the
automobile exception to the
search warrant
requirement. 6-14-12
State v. J.A.C. (A-102-10; 067520)
State v. J.A.C. (A-102-10;
067520)
The content of the instant messages written by and to
the victim in this case
constitutes “sexual conduct”
within the meaning of N.J.S.A.
2C:14-7(f), and that
content is therefore protected
by New Jersey’s Rape
Shield Law. Any probative value of the content of
the
victim’s messages is
substantially outweighed by its
prejudice. 6-14-12
State v. Juan Pablo Santos (067989; A-114-10)
State v. Juan Pablo Santos
(067989; A-114-10)
The grant of an evidentiary hearing in which defendant
was to be permitted to provide
telephonic testimony
must be reversed and the matter
remanded for full
reconsideration by the
post-conviction relief (PCR)
court as to whether defendant
can meet the standard
for entitlement to an
evidentiary hearing under State
v. Gaitan, 209 N.J. 339 (2012). 5-8-12
State v. Derek J. Kaltner (068778; A-8-11)
State v. Derek J. Kaltner
(068778; A-8-11)
The decision of the Appellate Division is affirmed
substantially for the reasons
expressed in Judge
Parrillo’s opinion. Because the police officers’
warrantless search of the home
after they were called
to address a noise complaint
was not objectively
reasonable, the evidence
obtained during the search
was properly suppressed. 5-1-12
State v. Marcus King (067265; A-104-10)
State v. Marcus King (067265;
A-104-10)
The trial court’s examination was insufficient and, as
a result, its ultimate
determination was flawed.
Because the Supreme Court is
satisfied that the record
created in response to
defendant’s motion does not
support the denial of his right
to represent himself,
his convictions must be
reversed. 04-12-12
Wednesday, June 06, 2012
STATE OF NEW JERSEY V. JOSEPH - 06/04/12- A-5651-09T1
STATE OF NEW JERSEY VS. RENARD JOSEPH
(A-5651-09T1)
In
this appeal of a defendant's triple armed robbery
convictions
where identification was a principal issue, we held
that
despite the lack of expert testimony, a proper foundation
was
laid for the computer-based photo retrieval system used to
obtain
the three victims' out-of-court identifications and that
such
a procedure, akin to a mug shot book, was not invalidated
by
police failure to record and retain the photographs viewed by
the witnesses. 06-04-12
S.K. VS. J.H. 06-06-12- A-1358-11T2
06-06-12
S.K. VS. J.H. (A-1358-11T2)
Plaintiff
brought this suit pursuant to the Prevention of
Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35, as a result of
being
atrociously assaulted by defendant, who, along with
plaintiff,
was on a trip to Israel with approximately forty
others. In seeking to prove the existence of a
"dating
relationship,"
plaintiff was able to show only that, on the
evening
of the assault, she and defendant sat together, danced
together,
and were together for a few hours at the bar. The
trial
court found a "dating relationship" and entered a final
restraining
order.
In considering defendant's appeal, the
court deferred to
the
trial judge's finding that the parties' interactions
constituted
a "date" but rejected the argument that this one
date
constituted the "dating relationship" required by the Act.
Although
the Legislature did not expressly define what it meant
by
a "dating relationship," the court found from the majority of
those
other states that have defined the term that a "dating
relationship"
is a romantic social relationship, which is
further
defined by its frequency and duration but which excludes
casual
or ordinary fraternization between two individuals in a
business
or social context. As a result of
this generally
accepted
meaning of "dating relationship," the court held that a
single
date was insufficient and reversed. - 06-06-12
In the Matter of Kevin P. Wigenton, an Attorney at Law (068659; D-131-10)
In the Matter of Kevin P. Wigenton, an Attorney at Law
(068659; D-131-10)
Kevin P. Wigenton failed to safeguard and negligently misappropriated escrow and client trust funds, violated attorney recordkeeping rules, and acted with a conflict of interest. For his unethical conduct, he is censured. 4-3-12
Subscribe to:
Posts (Atom)