STATE OF NEW JERSEY IN THE INTEREST OF J.J. A-2357-11T2

STATE OF NEW JERSEY IN THE INTEREST OF J.J.
          A-2357-11T2

     This case required us to determine whether procedural due
process rights must be accorded to an adjudicated juvenile prior
to transfer from a juvenile facility operated by the Juvenile
Justice Commission (JJC) to an adult correctional facility
operated by the Department of Corrections (DOC) pursuant to the
provisions of N.J.S.A. 52:17B-175(e).  That statute permits such
transfers of a juvenile "who has reached the age of 16 during
confinement and whose continued presence in the juvenile
facility threatens the public safety, the safety of juvenile
offenders, or the ability of the commission to operate the
program in the manner intended."  The State takes the position
that no due process rights of any kind, including notice and an
opportunity to be heard, are required.  We disagreed and
reversed.

     We concluded that the rehabilitative purposes of the
juvenile justice system combined with the importance of the
decision in terms of the availability of rehabilitative services
to juveniles at issue require due process at least as extensive
as that required for prison discipline.  See Avant v. Clifford,
67 N.J. 496, 525 (1975).  At a minimum, before a juvenile can be
transferred to custody of the DOC, there must be written notice
of the proposed transfer and the supporting factual basis, an
impartial decision maker, an opportunity to be heard and to
present opposition, some form of representation, and written
findings of fact supporting a decision to proceed with the
transfer. 
08-28-12  

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. C.H. AND M.B. IN THE MATTER OF J.B. A-5642-09T2

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS.
          C.H. AND M.B. IN THE MATTER OF J.B.

A-5642-09T2

     The trial judge sua sponte dismissed a DYFS abuse or
neglect complaint in the interim between the close of its
presentation of evidence and the scheduled return date for
defense witness testimony, without notice to the parties or an
opportunity to be heard.  The case arose out of the ingestion of
about thirty prescription pills by a toddler while he was solely
supervised by his mother C.H., resulting in a severe medication
overdose, hospitalization, and, fortunately, full recovery.

     DYFS and Law Guardian argue the sua sponte dismissal
deprived them of due process rights, was based on an improper
legal analysis, and was erroneous, as DYFS had established a
prima facie case.  We agree that the court erred procedurally
and substantively with respect to C.H., and reverse and remand
for continuation of the fact-finding hearing.  We affirm
dismissal of the complaint against the father as it was entered
following an oral motion and argument by counsel.

     We also hold the court did not properly consider the policy
considerations of G.S. v. Dept of Human Services and its progeny
and focus on the risks posed, the harm to the child, and whether
the harm could have been prevented by a cautionary act on C.H.'s
part.  The court also failed to apply the correct standard for
involuntary dismissal under Rule 4:37-2(b), and improperly
concluded that DYFS failed to present a prima facie case of
abuse and neglect as to C.H. 
08-23-12  

STATE OF NEW JERSEY VS. KIRBY LENIHAN A-4667-10T1

STATE OF NEW JERSEY VS. KIRBY LENIHAN A-4667-10T1

In this case of first impression, we determine that a violation of N.J.S.A. 39:3-76.2f, the "seat belt law," can serve as a predicate offense to support a conviction under N.J.S.A. 2C:40-18(b), which proscribes knowingly violating a law or failing to perform a duty imposed by law intended to protect the public health and safety and recklessly causing serious bodily injury. We reject defendant's claims that N.J.S.A. 2C:40-18(b) is unconstitutionally vague and that the seat belt law is not a law intended to protect the public health and safety as contemplated by this statute. 08-13-12 

STATE OF NEW JERSEY VS. ANTHONY MONTGOMERY A-2192-10T4

STATE OF NEW JERSEY VS. ANTHONY MONTGOMERY A-2192-10T4

After the State's presentation of overwhelming evidence of defendant's guilt, including several videotapes and testimony from ten eyewitnesses, in the jury's presence defendant assaulted his attorney, attempted to escape from the courtroom, and struggled with sheriff's officers. We held that a defendant cannot engage in courtroom misconduct and then expect to be rewarded with a mistrial or new trial for his egregious behavior where the trial judge took appropriate cautionary measures to ensure a fair trial.  08-10-12 

STATE OF NEW JERSEY VS. EDWARD DUPREY A-5469-10T4

 STATE OF NEW JERSEY VS. EDWARD DUPREY A-5469-10T4 this case required us to determine whether testimony given by the plaintiff or defendant during the trial of a domestic violence matter can be used for the purposes of cross- examination in a related criminal trial. We determined that a broad application of the language of N.J.S.A. 2C:25-29(a), which provides that "testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant," would impair a criminal defendant's rights under the Confrontation Clause of the Sixth Amendment. We further determined that the Legislature did not intend to permit a criminal defendant who testifies at his criminal trial to be immune from cross-examination based on prior inconsistent statements made under oath at the DV trial. We held that testimony from a DV trial can be used for the limited purpose of cross-examination in a manner consistent with the opinion, but cannot be used as affirmative evidence except as permitted by the statute.08-01-12

LAURIE NEWMARK-SHORTINO, ET AL. VS. ANDREI BUNA, M.D. A-0332-10T3

 LAURIE NEWMARK-SHORTINO, ET AL. VS. ANDREI BUNA, M.D. A-0332-10T3

In this medical negligence action where the jury entered a no cause verdict in favor of defendant, we hold the trial court committed reversible error when it failed to submit to the jury plaintiffs' lack of informed consent theory, in addition to their claim of deviation from the standard of care (medical malpractice). Although the facts supporting each theory of liability were intertwined, the evidence before the jury was sufficient to submit both theories of liability for theirverdict. We reversed and remanded for a new trial based solely upon a claim of lack of informed consent.  7-27-12

IN THE MATTER OF REGISTRANT P.B. A-3549-11T1

 IN THE MATTER OF REGISTRANT P.B. A-3549-11T1

This Megan's Law tiering appeal arises from a conviction for third-degree endangering the welfare of a child based on possession of child pornography on a home computer.

Applying the clear-and-convincing evidence standard, we held that the "penetration" element of the "degree of contact" criterion on the Registrant Risk Assessment Scale could not be satisfied merely by a showing of possession of pornographic materials depicting penetration "without any concomitant indication that [the registrant] played a role in the penetrative activity either as a participant or a producer."

We also held that a showing of the quantity of material alone, without any "proofs via expert witnesses or otherwise, . . . proffered to establish the length of time the material may have been on registrant's computer, or how much time would have been required to compile the quantity discovered," did not satisfy the proof requirements needed for any finding on the "duration of offensive behavior" criterion.

In dictum, we emphasized the prohibitions of Rule 1:36-3 regarding the citation or use of unpublished opinions; criticized reliance by the trial court on an argument made in another matter in reaching its findings and conclusions, without fully articulating the argument made for the benefit of opposing counsel and the record; and commented upon the duty of county prosecutors to administer Megan's Law uniformly from county to county. 07-26-12

State v. Carlton Harris (A-111-10; 067929)

State v. Carlton Harris (A-111-10; 067929)

Items seized during a search conducted pursuant to a warrant issued under the Prevention of Domestic Violence Act can serve as the basis for a subsequent criminal prosecution if their illegal nature is immediately apparent. A firearm’s serial number is visible simply by looking at the weapon. Recording that number does not constitute a seizure, and entry of that number into the NCIC system and review of the results does not constitute a search. Whether the officers could recognize immediately that the assault rifle and large capacity magazines were illegal to possess are factual determinations that must be remanded to the trial court.

State v. Norman Jackson (A-131/132-10; 067869)

State v. Norman Jackson (A-131/132-10; 067869)

The trial court properly exercised its discretion when it denied defendant’s motion for a mistrial because the prosecutor’s improper comments did not deprive defendant of a fair trial. Defendant both transported the victim a “substantial distance” and confined him for a “substantial period” within the meaning of N.J.S.A. 2C:13-1(b).

State v. J.D. (A-33-11; 064757)

State v. J.D. (A-33-11; 064757)

Evidence proffered by defendant J.D. of the victim’s prior sexual contact with other males consisted of vague allegations that were inadmissible and not constitutionally compelled, and the trial court properly excluded it under the Rape Shield Law, which protects the victim of sexual assault from unjustified incursions into past conduct.

State v. Aurielo Ray Cagno (A-60-09; 064834)

State v. Aurielo Ray Cagno (A-60-09; 064834)

The totality of the evidence permitted the jury to find that the charged conspiracy continued into the limitations period; the manner in which the prosecution was permitted to establish the continuation of the conspiracy did not violate defendant’s right to confrontation; and the jury 

2C:33-15 Possession, consumption of alcoholic beverages by persons under legal age; penalty.

2C:33-15   Possession, consumption of alcoholic beverages by persons under legal age; penalty.

1. a. Any person under the legal age to purchase alcoholic beverages who knowingly possesses without legal authority or who knowingly consumes any alcoholic beverage in any school, public conveyance, public place, or place of public assembly, or motor vehicle, is guilty of a disorderly persons offense, and shall be fined not less than $500.00.

b.Whenever this offense is committed in a motor vehicle, the court shall, in addition to the sentence authorized for the offense, suspend or postpone for six months the driving privilege of the defendant.  Upon the conviction of any person under this section, the court shall forward a report to the New Jersey Motor Vehicle Commission stating the first and last day of the suspension or postponement period imposed by the court pursuant to this section.  If a person at the time of the imposition of a sentence is less than 17 years of age, the period of license postponement, including a suspension or postponement of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period of six months after the person reaches the age of 17 years.

If a person at the time of the imposition of a sentence has a valid driver's license issued by this State, the court shall immediately collect the license and forward it to the commission along with the report.  If for any reason the license cannot be collected, the court shall include in the report the complete name, address, date of birth, eye color, and sex of the person as well as the first and last date of the license suspension period imposed by the court.

The court shall inform the person orally and in writing that if the person is convicted of operating a motor vehicle during the period of license suspension or postponement, the person shall be subject to the penalties set forth in R.S.39:3-40.  A person shall be required to acknowledge receipt of the written notice in writing.  Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40.

If the person convicted under this section is not a New Jersey resident, the court shall suspend or postpone, as appropriate, the non-resident driving privilege of the person based on the age of the person and submit to the commission the required report.  The court shall not collect the license of a non-resident convicted under this section. Upon receipt of a report by the court, the commission shall notify the appropriate officials in the licensing jurisdiction of the suspension or postponement.

c.In addition to the general penalty prescribed for a disorderly persons offense, the court may require any person who violates this act to participate in an alcohol education or treatment program, authorized by the Department of Health and Senior Services, for a period not to exceed the maximum period of confinement prescribed by law for the offense for which the individual has been convicted.

d.Nothing in this act shall apply to possession of alcoholic beverages by any such person while actually engaged in the performance of employment pursuant to an employment permit issued by the Director of the Division of Alcoholic Beverage Control, or for a bona fide hotel or restaurant, in accordance with the provisions of R.S.33:1-26, or while actively engaged in the preparation of food while enrolled in a culinary arts or hotel management program at a county vocational school or post secondary educational institution.

e.The provisions of section 3 of P.L.1991, c.169 (C.33:1-81.1a) shall apply to a parent, guardian or other person with legal custody of a person under 18 years of age who is found to be in violation of this section.

f.An underage person and one or two other persons shall be immune from prosecution under this section if:

(1)one of the underage persons called 9-1-1 and reported that another underage person was in need of medical assistance due to alcohol consumption;

(2)the underage person who called 9-1-1 and, if applicable, one or two other persons acting in concert with the underage person who called 9-1-1 provided each of their names to the 9-1-1 operator;

(3)the underage person was the first person to make the 9-1-1 report; and

(4)the underage person and, if applicable, one or two other persons acting in concert with the underage person who made the 9-1-1 call remained on the scene with the person under the legal age in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene.

The underage person who received medical assistance also shall be immune from prosecution under this section. 

State v. Alfonso Herrerra/State v. Nelson Gonzalez (A-121-10; 067308)

State v. Alfonso Herrerra/State v. Nelson Gonzalez
          (A-121-10; 067308)

The exclusionary rule does not apply to a prosecution
          for attempted murder and related offenses after a
          possibly unlawful stop.  An attenuation analysis is
          unnecessary.  Defendants are not entitled to racial
          profiling discovery in seeking to suppress the drug
          evidence or to challenge the Trooper’s credibility at
          a new trial. 
8-7-12    

Douglas Trautmann v. Chris Christie (A-16-11; 067705)

Douglas Trautmann v. Chris Christie (A-16-11; 067705)

          The judgment is affirmed substantially for the reasons
          expressed in the opinion of the Appellate Division.
          Chapter 37 is not preempted by federal law, does not
          violate equal protection, and does not give rise to an
          unconstitutional search and seizure.  
8-6-12