J.B., ET AL. VS. NEW JERSEY STATE PAROLE BOARD

J.B., ET AL. VS. NEW JERSEY STATE PAROLE BOARD

A-5435-10T2/ A-1459-11T2/ A-2138-11T3/ A-2448-11T2/A-3256-11T2(CONSOLIDATED)

Appellants are individuals who have been convicted of sexual offenses, have completed their respective prison terms, and are now being monitored by respondent New Jersey State Parole Board as offenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"). N.J.S.A. 2C:43-6.4. They challenge the constitutionality of certain terms of supervision the Parole Board has imposed upon them and other released sex offenders subject to CSL or PSL, mainly (1) restrictions on access to social media or other comparable web sites on the Internet; and (2) mandated submission to periodic polygraph examinations.

In the published portion of our opinion, we reject appellants' facial challenges to the Internet access restrictions, subject to their right to bring future "as-applied" challenges if they avail themselves of the Parole Board's procedures for requesting specific permission for more expanded Internet access and are then denied such permission.

As indicated in the unpublished portion of our opinion, we do not decide at this time the merits of appellants' constitutional attack upon the polygraph requirements. Instead, we refer that subject matter to the trial court for supplemental proceedings, pursuant to Rule 2:5-5(b), for the development of an appropriate record, including scientific or other expert proofs, and for fact-finding. Such proofs and fact-finding shall focus upon the alleged therapeutic, rehabilitative, and risk management benefits of polygraph testing when it is conducted within the specific context of post-release oversight of sex offenders. 11-26-13

 

State of New Jersey v. Troy N. Tate (A-99-11; 069314)

 State of New Jersey v. Troy N. Tate (A-99-11; 069314)

 A conviction for possession of a weapon for an
unlawful purpose must merge with a conviction for
aggravated manslaughter when the evidence does not
support the existence of another unlawful purpose for
possession of the weapon. 11-12-13

STATE OF NEW JERSEY VS. ANGELIQUE STUBBS ET AL.

 STATE OF NEW JERSEY VS. ANGELIQUE STUBBS ET AL.
AND STATE VS. JULES L. STUBBS ET AL.
 A-1199-10T2/A-2942-10T2(CONSOLIDATED)

Husband and wife, Jules and Angelique Stubbs, were
convicted of various CDS-related offenses. As to the wife,
we remand for a hearing as to the admissibility of the form
United States Currency Seizure Report, which she signed,
pertaining to $4831 in cash seized from defendants' home
along with a substantial quantity of drugs. The State
argued that the wife, by signing the form, claimed
ownership of the cash, which demonstrated she joined in her
husband's drug-related activities. We conclude the form
must be viewed as an adoptive admission under N.J.R.E.
803(b)(2); and, since the form was a statement of a
criminal defendant, N.J.R.E. 803(b), the State as proponent
was required to show, in a preliminary hearing pursuant to
N.J.R.E. 104(c), that the statement was admissible. To do
so, the State must show the wife was aware of and
understood the contents of the allegedly adopted statement,
and she unambiguously assented to it. We order a new trial
for the wife only if the trial court determines on remand
that the form was not properly admitted as an adoptive
admission. 11-07-13

State of New Jersey v. Amir A. Andrews

State of New Jersey v. Amir A. Andrews
(A-105-11;069594)

Gilmore’s single, bright-line remedy has proven
ineffective to fully and fairly respond to the use of
constitutionally impermissible peremptory challenges.
The Court modifies Gilmore and hereby permits trial
judges to choose from a broader set of remedies to
address the impermissible use of peremptory
challenges. 10-28-13

State of New Jersey v. Gene Hinton (A-3/4-12; 070386)

 State of New Jersey v. Gene Hinton (A-3/4-12; 070386)

 Where, as here, an eviction proceeding has advanced to
the point that a warrant of removal has been executed,
a tenant does not have a reasonable expectation of
privacy in the premises. Therefore, the police action
in Hinton’s apartment was not a “search” under either
the Fourth Amendment of the United States Constitution
or Article I, Paragraph 7 of the New Jersey
Constitution. 10-24-13

STATE OF NEW JERSEY VS. LARRY R. HENDERSON

  STATE OF NEW JERSEY VS. LARRY R. HENDERSON


A-5482-11T3

In its landmark decision in this case, State v. Henderson, 208 N.J. 208 (2011), the Supreme Court remanded to the trial court for a new Wade hearing. Applying the Court's new state constitutional framework for such matters, the trial court denied suppression of the out-of-court eyewitness identification evidence used to convict defendant. On appeal, defendant argued, among other things, that the new framework implicitly imposed on the

prosecution the burden of proving reliability by "clear and convincing evidence." In light of the language of the Supreme Court's opinion that, once a defendant provides evidence of suggestiveness the prosecution must "offer proof to show that the proffered eyewitness identification is reliable," id. at 289, the court rejected this argument, viewing the prosecution's burden as little different and no more onerous than the "burden of producing evidence" described in N.J.R.E. 101(b)(2).

Affirmed. 10-17-13
 

STATE OF NEW JERSEY VS. DAVID GRANSKIE, JR. A-6278-11T4

 STATE OF NEW JERSEY VS. DAVID GRANSKIE, JR.

A-6278-11T4

The question presented by this appeal is whether respondent AIG Casualty Company, which paid workers' compensation benefits to petitioner, Kelly Greene, is entitled to a lien against her settlement with a third-party tortfeasor pursuant to Section 40 of the Workers' Compensation Act, N.J.S.A. 34:15-40, even though her injury was ultimately noncompensable.

Nothing in either Section 15 or Section 40 conditions reimbursement of the claim from a third-party settlement on whether the benefits the employer paid were owed in the first place. Read in conjunction, Section 40 and our collateral source statute, N.J.S.A. 2A:15-97, plainly require that a third-party tortfeasor be held to the full extent of its liability for a workplace injury, that the employer be repaid for benefits paid to the injured worker pursuant to the Act without regard to the compensability of the claim, and that the employee not obtain a double recovery. AIG is entitled to its lien. 10-16-13 

State v. Osborne S. Maloney (A-64-11; 068877)

 State v. Osborne S. Maloney (A-64-11; 068877)

 The trial court did not err by failing to sua sponte
instruct the jury on accomplice liability and by
rejecting defendant’s request to charge the jury on
the asserted lesser-included offenses of attempted
theft by receiving stolen property and conspiracy to
receive stolen property. 10-16-13

STATE OF NEW JERSEY VS. L.A. A-6175-10T4

STATE OF NEW JERSEY VS. L.A.

A-6175-10T4

In this PCR case, presented after an evidentiary hearing on remand, we explicate the familiar Strickland prejudice standard, requiring a defendant to show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). We note the test is not outcome determinative; "reasonable probability" does not mean more likely than not; it means "probability sufficient to undermine confidence in the outcome." Ibid. We address the prejudice prong's application to a claim that counsel failed to call an exculpatory witness. We conclude a court must assess the absent or uncalled witness's credibility in light of the totality of the circumstances. The issue is not whether the absent witness is more credible than the State's witness; it is whether the absent witness'stestimony sufficiently undermined confidence in the result. The court's ultimate goal is to assess the challenged trial's fairness and reliability.

Here, the trial judge found the absent witness credible, but denied relief because he perceived the victim-witness more credible. We reverse the court's denial of PCR because the court failed to consider the totality of circumstances, and misapplied the test for determining prejudice under Strickland. 10-08-13

State of New Jersey v. Terrence Miller (A-35-11; 068558)

State of New Jersey v. Terrence Miller

(A-35-11; 068558)

The trial judge’s denial of an adjournment did not violate defendant’s constitutional right to effective representation, was not an abuse of discretion, and did not violate principles of fundamental fairness. 10-2-13

New law finally establishes a Conditional Dismissal Program in Municipal Court.

New law finally establishes a Conditional Dismissal Program in Municipal Court. Ken Vercammen testified in favor of the passage before the Assembly Judiciary Committee.

Governor Chris Christie on September 9 signed into law legislation co-sponsored by Senator Christopher “Kip” Bateman (R-Hunterdon, Mercer, Middlesex and Somerset) to provide a conditional assistance program in Municipal Court for certain first-time offenders. The law takes affect 120 days after signing [approx December 9]

“This initiative will give a broader range of first-time offenders who have committed a minor offense an opportunity to turn their lives around,” Bateman said. “The program will help foster participants’ rehabilitation and future success by giving them appropriate penalties without having the offense be a part of their permanent criminal record.”

Under prior law, the only offenses eligible for a conditional discharge are certain drug-related offenses. Bateman’s S-2588 allows discharge for many non-drug offenses, such as disorderly person’s offenses, which have not been able to participate in similar programs before.

“First-time offenders who are screened to meet the eligibility requirements will be able to use the program to avoid having a record that cannot be expunged until years after the sentence is served,” Bateman added. “The legislation will also help courts efficiently adjudicate cases without costly logjams.”

Contact Kenneth Vercammen’s Law Office if charged with a criminal offense 732-572-0500

Under this law, conditional dismissal is not available to any person who has previously participated in a conditional discharge, conditional dismissal, or supervisory treatment program such as PTI. In addition, a person is not eligible for conditional dismissal if the offense for which the person is charged involved:

•  organized criminal or gang activity;

•  a continuing criminal business or enterprise;

•  a breach of the public trust by a public officer or employee;

•  domestic violence;

•  an offense against an elderly, disabled or minor person;

•  an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug;

•  animal cruelty;

•  or any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of the Criminal Code.

        After taking into consideration the eligibility criteria, the defendant’s criminal history and the prosecutor’s recommendation, the court may, approve the defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. 

      This law establishes a conditional dismissal program in municipal court similar to the existing supervisory treatment programs for pre-trial intervention and conditional discharge.

      Previously, the supervisory treatment programs for pre-trial intervention and conditional discharge allow the court to suspend proceedings against eligible defendants while the defendants participate in supervisory treatment.  Persons who are charged with indictable offenses (crimes of the first, second, third, or fourth degree) may be eligible for pretrial intervention (“PTI”) pursuant to N.J.S.2C:43-12 et seq.  Persons charged with certain disorderly persons or petty disorderly persons drug offenses may be eligible for conditional discharge pursuant to N.J.S.2C:36A-1.  If the defendant violates a term or condition of supervisory treatment, the court may enter a judgment of conviction or, where the defendant did not previously plead guilty and was not previously found guilty, resume the criminal proceedings.  If the defendant successfully completes the program, the criminal charges are dismissed.

      CONDITIONAL DISMISSAL PROGRAM. This law establishes a similar diversion program in municipal court to be known as the conditional dismissal program.  Under the provisions of the law, a defendant who is charged with a petty disorderly persons offense or disorderly persons offense may apply to enter into the conditional dismissal program, provided the defendant  has not been previously convicted of any offense or crime under any law of the United States, this State or any other state.  A defendant may make an application to the conditional dismissal program after a plea of guilty or a finding of guilt, but prior to the entry of judgment of conviction.

      FINGERPRINTING REQUIREMENT.  To allow sufficient time for verification of the defendant’s criminal history by the prosecutor and as a condition of the application, the defendant will be required to submit to the fingerprint identification procedures as provided in R.S.53:1-15 before making an application to the court.

      CONDITIONAL DISMISSAL PROGRAM ELIGIBILITY. Conditional dismissal will not be available to any person who has previously participated in conditional discharge, conditional dismissal, or PTI.  In addition, conditional dismissal will not be available if the offense for which the person is charged involved: organized criminal or gang activity; a continuing criminal business or enterprise; a breach of the public trust by a public officer or employee; domestic violence; an offense against an elderly, disabled or minor person; an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug; animal cruelty laws; or any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of the Criminal Code (drugs and drug paraphernalia). However, a person who is charged with a disorderly persons or petty disorderly persons offense involving drugs or drug paraphernalia may apply for a conditional discharge in accordance with N.J.S.2C:36A-1.

      In addition to these eligibility criteria, the court considering the application must also consider the following factors: the nature and circumstances of the offense; the facts surrounding the commission of the offense; the motivation, age, character and attitude of the defendant; the desire of the complainant or victim to forego prosecution; the needs and interests of the victim and the community; the extent to which the defendant’s offense constitutes part of a continuing pattern of anti-social behavior; whether the offense is of an assaultive or violent nature, either in the act itself or in the possible injurious consequences of such behavior; whether the applicant's participation will adversely affect the prosecution of codefendants; whether diversion of the defendant from prosecution is consistent with the public interest; and any other factors deemed relevant by the court.

      If the court approves a defendant’s participation in the conditional dismissal program over the municipal prosecutor’s objection, that order will, upon the request of the prosecutor, be stayed for a period of 10 days in order to permit the prosecutor to appeal the order to the Superior Court.

      PROGRAM REQUIREMENTS.  After taking into consideration the eligibility criteria, the defendant’s criminal history and the prosecutor’s recommendation, the court may approve the defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. The court may also impose financial obligations and other terms and conditions in accordance with the law.  The law permits the defendant to apply to the court for an extension of the term of conditional dismissal to allow sufficient time to pay financial obligations imposed by the court.  In addition, a judge could extend the term for good cause.

      If a defendant who is participating in conditional dismissal is convicted of any offense or crime under any law of the United States, this State or any other state, or otherwise fails to comply with the terms and conditions imposed by the court, the court can enter a judgment of conviction and impose a fine, penalty, or other assessment in accordance with the defendant’s prior plea of guilty or prior finding of guilt.

      If, at the end of the term, the defendant has not been convicted of any subsequent offense or crime under any law of the United States, this State or any other state, and has complied with any other terms and conditions imposed by the court, the court may terminate the probation monitoring and dismiss the proceedings against the defendant.

      The law provides that a conditional dismissal of a petty disorderly persons or disorderly persons offense granted pursuant to the program will not be deemed a conviction for purposes of disqualifications or disabilities, but shall be reported to the State Bureau of Identification criminal history record information files for purposes of determining future eligibility or exclusion from court diversion programs.  A conditional dismissal granted will not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under any law of this State.

      LIMITATION.  A conditional dismissal can only be granted once with respect to any defendant.

      CONDITIONAL DISMISSAL APPLICATION FEE AND ASSESSMENT.  A person applying for admission to the conditional dismissal program will pay to the court an application fee of $75.  The fee would be deposited in the newly created “Municipal Court Diversion Fund” established under the law. Monies in this new fund will be used to offset the cost of intake and monitoring services related to the conditional dismissal program.  If admitted into the program, the defendant would also be required to pay any restitution, costs, and other mandatory assessments that would have been imposed by law for a conviction of the offense charged.

      A municipal court judge may impose an assessment, based on the nature of the offense and the character of the defendant that shall not exceed the amount of a fine that would have been imposed for conviction of the offense charged.  Such assessment would be distributed in the same manner as a fine for the offense.

      A defendant would be advised of these financial conditions prior to seeking entry into the program.

      The law allows the defendant to apply for a waiver of the fee by reason of poverty.  The court may also permit the defendant to pay the conditional dismissal fee and other assessments in installments or order other alternatives pursuant to section 1 of P.L.2009, c.317 (C.2B:12-23.1).  Under the provisions of that enactment, the court has several options available if it finds that a person does not have the ability to pay a penalty in full or has failed to pay a previously imposed penalty.  The court may reduce, suspend, or modify the installment plan; order that credit be given against the amount owed for each day of confinement if the court finds that the person has served jail time for the default; revoke any unpaid portion of the penalty; order the person to perform community service in lieu of payment of the penalty; or impose any other alternative permitted by law.

      MUNICIPAL COURT DIVERSION FUND.  The law establishes a new dedicated, non-lapsing fund to be known as the "Municipal Court Diversion Fund," which will be administered by the Administrative Office of the Courts.  The fund will be the depository of the $75 application fee for the conditional dismissal program.  Monies in the fund will be used to offset the cost of intake and monitoring services for defendants under the conditional dismissal program.

      CONDITIONAL DISCHARGE. Currently, the conditional discharge statute, N.J.S.2C:36A-1, provides that the $75 fee, which is charged for this program, is used to defray the costs of juror compensation. However, this provision is outdated since these monies are no longer used to defray the costs of juror compensation, but instead are paid to the State Treasurer to for deposit in the General Fund. This law updates this section of law accordingly.

      Under the current provisions of the conditional discharge statute, a person is not eligible for conditional discharge if that person has committed a disorderly persons or petty disorderly persons drug offense under any law of the United States, this State or any other state. The law amends section a. of N.J.S.2C:36A-1 to also provide that a person who has participated in any supervisory treatment program or the conditional dismissal program established under the law will not be eligible for participation in the conditional discharge program.

      SUPERVISORY TREATMENT (PTI).  Similar to the conditional discharge statute, the PTI statute, N.J.S.2C:43-12, provides that the $75 fee charged for the program is used to defray the costs of juror compensation. Since these monies are no longer used to defray the costs of juror compensation, the law updates this section of law accordingly.

      Under the current provisions of N.J.S.2C:43-12, PTI may only occur once and any person who has previously received PTI is not eligible for subsequent PTI. This law expands this provision by providing that a person who has participated in either conditional dismissal or conditional discharge will not be eligible for PTI.

      The law amends the conditional discharge and PTI statutes to provide that the court may allow the payment of the fees and other financial obligations in installments.

      EXPUNGEMENT. The law amends N.J.S.2C:52-6 concerning expungement of arrests not resulting in conviction to allow for expungement of charges dismissed pursuant to conditional discharge or conditional dismissal six months after the entry of the order of dismissal. Currently, this section allows for expungement for a person who has had charges dismissed as a result of participation in a supervisory treatment program.

State v. William O’Driscoll (A-7-12; 070438)

State v. William O’Driscoll (A-7-12; 070438)
The police officer’s errors in the reading of the
standard statement informing defendant of the
consequences of refusing to provide a breath sample
were not material in light of the statutory purpose to
inform motorists and impel compliance. The officer’s
misstatements could not have reasonably affected
defendant’s choice to refuse to provide a breath
sample, and do not require reversal of defendant’s
conviction for refusal. 9-18-13

State v. Robert Handy (A-68-11; 069022)

State v. Robert Handy (A-68-11; 069022) 

The bifurcated trial procedure created in State v. Kahn, 175 N.J. Super. 72 (App. Div. 1980), is disapproved and that decision is overruled. In the future, trials that involve both a substantive defense and an insanity defense must be unitary proceedings. The matter is remanded to the trial court to afford defendant the opportunity to continue in a second phase of his trial which he may present his self-defense claim. 9-9-13 

STATE OF NEW JERSEY VS. DANIEL BLAZAS A-0705-10T3

STATE OF NEW JERSEY VS. DANIEL BLAZAS 

A-0705-10T3 

The "meaningful opportunity to present a complete defense" guaranteed by the Federal and New Jersey Constitutions is denied when the prosecution substantially interferes with a defendant's ability to secure witness testimony. In this case, the government conduct alleged did not result in the denial of witness testimony but, rather, in the denial of access to the witness for interview by the defense. Because such allegations, if true, would be proof of substantial interference with defendant's constitutionally guaranteed right of access to witnesses, we hold that the trial judge erred in failing to conduct an evidentiary hearing. In addition, we conclude that a reversal of defendant's convictions is required because the trial judge granted his motion to proceed pro se without adequately advising him of the consequences of his decision. 08-26-13 

WAIVER OF FIRST APPEARANCE FOR INDICTABLE OFFENSES – RULE 3:4-2(e) PROTOCOL AND FORM

Richard J. Hughes Justice Complex • PO Box 037 • Trenton, New Jersey 08625-0037 

Administrative Office of the Courts 

GLENN A. GRANT, J.A.D. 

Acting Administrative Director of the Courts 

www.njcourts.com • Phone: 609-984-0275 • Fax: 609-984-6968 

[Questions and/or comments may be directed to 609-292-4638.] 

TO: ASSIGNMENT JUDGES 

Directive # 01-13 

FROM: GLENN A. GRANT, J.A.D. 

DATE: MARCH 18, 2013 

SUBJ: WAIVER OF FIRST APPEARANCE FOR INDICTABLE OFFENSES – RULE 3:4-2(e) PROTOCOL AND FORM 

This Directive promulgates a standard form to be used and a protocol to be followed when a defendant who is facing indictable charge(s) elects to waive his or her first appearance. The form and protocol, which apply to first appearances in Municipal Court and in Superior Court, have been endorsed by the Conference of Criminal Presiding Judges, the Conference of Municipal Court Presiding Judges, the Conference of Criminal Division Managers, and the Conference of Municipal Division Managers. 

A. Waiver of First Appearance for Indictable Offenses – Rule 3:4-2 

Rule 3:4-2 provides that following the filing of a complaint, the defendant shall be brought before a judge for a first appearance without unnecessary delay, If the defendant remains in custody, the first appearance shall occur within 72 hours after arrest, excluding holidays, and shall be before a judge with authority to set bail for the offenses charged. Paragraph (e) of Rule 3:4-2 provides that a defendant who is represented by an attorney and is not incarcerated may waive the first appearance by filing a written statement signed by the attorney, unless otherwise ordered by the court. More specifically, Rule 3:4-2(e) provides that to waive the first appearance for indictable offenses, the attorney must certify that: 

1. the defendant has received a copy of the complaint and has read it or the attorney has read it and explained it to the defendant; 

2. the defendant understands the substance of the charge; 

3. the defendant has been informed of the right to remain silent and that any statement may be used against the defendant; Directive # 01-13 - Waiver of First Appearance – R. 3:4-2(e) March 18, 2013 - Page 2 

Richard J. Hughes Justice Complex • PO Box 037 • Trenton, New Jersey 08625-0037 

4. the defendant has been informed that there is a pretrial intervention program and where and how an application to that program may be made; and 

5. the defendant has been informed of the right to have a hearing as to probable cause, the right to indictment by the grand jury and trial by jury, and, if applicable, that the offense charged may be tried by the court upon waiver of indictment and trial by jury, if in writing and signed by the defendant. 

B. Procedures for a Defendant to File a Waiver of the First Appearance 

1. A defendant who is not incarcerated and is represented by counsel may waive the first appearance by completing the Waiver of First Appearance for Indictable Offenses Form (attached). The rule requires the defendant’s attorney to certify that the defendant has been advised of the information set forth in Rule 3:4-2(e). 

2. The Waiver of First Appearance for Indictable Offenses Form must be filed by the attorney with the Superior Court or Municipal Court where the first appearance is scheduled, either at or before the time fixed for the first appearance. The preference is for such filing to be done electronically. 

3. The attorney filing the Waiver of First Appearance for Indictable Offenses Form must provide a copy to the Criminal Division Manager’s office in the vicinage where the complaint has been filed and to the prosecuting attorney (i.e., the County Prosecutor or the Attorney General). The preference is for such copies to be provided electronically. 

This Waiver of First Appearance form can be modified for use in the rare instance that a first appearance for a non-indictable offense is held in Superior Court pursuant to Rule 3:4-2(c). 

Any questions or comments regarding this Directive may be directed to Joseph J. Barraco, Assistant Director for Criminal Practice at 609-292-4638 or Debra Jenkins, Assistant Director for Municipal Court Services Division at (609) 984-8241. 

/mp 

Attachment

cc: Chief Justice Stuart Rabner 

Attorney General Jeffrey S. Chiesa 

Public Defender Joseph E. Krakora 

Criminal Division Judges 

Municipal Court Judges 

Elie Honig, Director, DCJ 

County Prosecutors 

Steven D. Bonville, Chief of Staff 

AOC Directors and Assistant Directors 

Trial Court Administrators 

Criminal Division Managers 

Municipal Division Managers 

Assistant Criminal Division Managers 

Municipal Court Directors and Administrators 

Gurpreet M. Singh, Special Assistant 

Susan Callaghan, Chief, Criminal Practice 

Carol A. Welsch, Chief, Mun. Ct. Services 

Steven Somogyi, Municipal Ct. Services 

Melaney S. Payne, Criminal Practice 

ATTACHMENT 

Waiver of First Appearance for Indictable Offenses Form Original: Court Copies: County Prosecutor/Attorney General, Criminal Division Manager Form Promulgated by Directive #01-13 (03/18/2013), CN: 11688 

Waiver of First Appearance for Indictable Offenses 

For Attorney Use Only 

In accordance with R. 3:4-2(e), I am requesting a waiver of the first appearance 

scheduled for my client	on
(client’s name)	(date of first appearance)
at	.
(location)

STATE OF NEW JERSEY VS. POMIANEK A-2694-10T4

We construed one section of the bias intimidation statute, which defendant challenged as unconstitutional. We held that a conviction under N.J.S.A. 2C:16-1a(3) requires proof of the

defendant's biased intent in committing the predicate crime; proof of the victim's perception of the crime is insufficient for a conviction. That construction is consistent with the legislative history and necessary to avoid holding the statute unconstitutional.

We also construed the official misconduct statute, N.J.S.A. 2C:30-2a, holding that under the facts of this case defendant could be re-tried for official misconduct based on harassment by conduct but not harassment by communication. 01-30-13

IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDS OF R.Z. A-4253-11T4

We reverse and remand an order expunging an adult conviction for two second-degree crimes — theft by deception and financial facilitation of criminal activity — because petitioner failed to prove the crimes were contemporaneous. N.J.S.A. 2C:52-2(a) precludes expungement if a petitioner has been "convicted of any prior or subsequent crime." Crimes are prior or subsequent if committed on "separate occasions." In re Ross,400 N.J. Super. 117, 122 (App. Div. 2008). We hold the petitioner bears the burden to show one crime was not prior or subsequent to the other. Also, we hold a crime involving a course of conduct is deemed to occur, for expungement purposes, when the course of conduct begins as well as when it ends, and we reject the suggestion that the date of commission is determined solely by N.J.S.A. 2C:1-6c, which states, for statute of limitations purposes, a crime involving a course of conduct is committed when the conduct terminates. We remand to allow petitioner to submit proofs that his two crimes were in fact contemporaneous. 01-28-13

STATE OF NEW JERSEY VS. BLANN A-0097-11T2

We reverse defendant's conviction because the absence of a signed jury waiver required by Rule 1:8-1(a), coupled with the judge's failure to question defendant on the record regarding his request to waive a jury and the judge's failure to state his reasons for granting defendant's request, make it impossible for a reviewing court to assess whether defendant's waiver was knowing and voluntary. Judge Lisa dissents and would affirm the conviction without prejudice to defendant's right to seek review by way of a petition for post conviction relief. 01-08-13

State v. Micelli (A-1-12; 070453)

The reliability of the identifications should have been assessed at a Wade hearing before the trial court. 8-19-13

State v. Morgan (A-119-11; 069967)

Both ex parte communications between the trial judge and jury were improper and the trial court erred in permitting the jurors to take written instructions home for the weekend. Despite those errors, the record affirmatively shows that the contacts and the decision to permit the jury to take home written instructions did not prejudice defendant and had no tendency to influence the verdict.8-8-13

State v. Dabas (A-109-11; 069498)

The prosecutor’s office violated its post-indictment discovery obligations under Rule 3:13-3, when its

investigator destroyed his notes of a two-hour pre- interview of defendant. The trial court abused its discretion in denying defendant’s request for a charge that would have allowed the jury to draw an adverse inference from the destruction of the interview notes more than a year after the return of the indictment.7-30-13

State v. Sterling (A-93-11; 068952)

It was error to join the three crimes involving K.G., L.R., and S.P. in one trial and to admit evidence relating to the S.P. burglary in the second trial involving offenses against J.L. The convictions involving K.G. and J.L. were properly reversed. However, based on the strong evidence against defendant in respect of the crimes committed against L.R. and S.P., the errors were harmless and do not require retrial of those charges.7-29-13

State v. Lawless (A-89-11; 069703)

Because defendant pled guilty to only one criminal offense, aggravated manslaughter, the sole “victim” for purposes of N.J.S.A. 2C:44-1(a)(2) was the

deceased driver, and the harm inflicted upon the passengers is irrelevant to aggravating factor two. Their injuries may be considered part of the “nature and circumstances of the offense.” N.J.S.A. 2C:44-

1(a)(1). Thus, the court may consider aggravating factor one when defendant is resentenced.7-22-13

State v. Earls (A-53-11; 068765)

Article I, Paragraph 7 of the New Jersey Constitution protects an individual’s privacy interest in the location of his or her cell phone. Police must obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrant requirement, to obtain tracking information through the use of a cell phone. 7-18-13

State v. K.W. (A-128-11; 070650)

Application of State v. Worthy, 141 N.J. 368 (1995),compels the suppression of the conversation recorded in violation of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34. Neither the County Prosecutor nor her designee authorized the consensual intercept before it was undertaken, as required by N.J.S.A. 2A:156A-4(c). 7-11-13

State v. Tedesco (A-50-12; 072323)

A criminal defendant does not have an absolute right to be absent from his sentencing hearing. Trial judges have discretion to decide whether to accept a defendant’s waiver of the right to be present. In an attempt to justify a waiver, a defendant must advance specific reasons that demonstrate special circumstances. Judges must consider various concerns including the interests of the public, the defendant, the victims, and the State. 6-24-13

State v. Scoles (A-41-11; 069212)

The Court establishes a template for courts to strike a proper balance between a defendant’s right to pretrial discovery and the public’s interest in protecting child pornography victims from the risk of unnecessary harm arising from the dissemination of child pornography images in the prosecution of criminal trials. Before a court grants defense counsel’s request for discovery of copies of alleged child pornography for viewing in their office, counsel must demonstrate their ability and willingness to abide by stringent conditions of control. In this case, the Protective Order is set aside, and the trial court must reconsider the defendant’s discovery request in light of the Court’s opinion. 6-13-13

State v. A.R. (A-63-11; 068957)

As the Court held in State v. Burr, 195 N.J. 119 (2008), and reinforced in State v. Miller, 205 N.J.109 (2011), a video-recorded statement must be replayed in open court under the direct supervision of the judge. Applying the invited-error doctrine in this case, however, the decision to permit unfettered access to the video-recorded statements during deliberations was not plain error and does not warrant reversal of the conviction. 5-16-13

State v. Buckley (A-55-11; 069494)

The proffered seat belt and utility pole location evidence is irrelevant to and therefore inadmissible on the issue of “but for” causation under N.J.S.A.

2C:2-3(a)(1) and the question of Buckley’s awareness of the risk of his conduct under the first prong of N.J.S.A. 2C:2-3(c). 5-15-13

In the Matter of Subpoena Duces Tecum on Custodian of Records, Crim. Div. Manager, Morris County (A-25-11; 068596)

The subpoena was properly quashed because defendant is entitled to the benefit of the long-standing practice embodied in Directive 1-06 – that “information on the intake form may not be used in grand jury proceedings or at trial.” For future cases, the Directive is modified to permit disclosure of UDIR forms to investigate and prosecute a defendant’s misrepresentation of financial status in limited circumstances. 5-14-13

State v. Walker a/k/a Moss (A-49-11; 068742)

Under the New Jersey and federal constitutions, probable cause and exigent circumstances justified the warrantless entry into defendant’s apartment and the seizure of the marijuana cigarette and all the CDS found there. 4-10-13

State v. Rangel (A-88-11; 069204)

Based on the plain language of N.J.S.A. 2C:14-2(a)(3)and a textual reading of the statute as a whole, the phrase “on another” refers to someone other than the victim. 4-29-13

State v. Rockford (A-54-11; 069106)

The Court declines to adopt a bright-line rule that would preclude the use of a flash-bang device in the execution of a knock-and-announce search warrant. The objective reasonableness of law enforcement’s execution of a warrant should be determined on a case- by-case basis, considering the totality of the circumstances. Here, the officers’ execution of the

warrant was objectively reasonable and, thus, constitutional. 4-23-13

State v. Cahill (A-47-11; 068727)

Applying the four-factor analysis set forth by the United States Supreme Court in Barker v. Wingo, the sixteen-month delay between the remand of the driving- while-intoxicated charge to the municipal court and the notice of trial deprived defendant Michael Cahill of his right to a speedy trial and the charge must be dismissed. 4-1-13

State v. Vargas (A-56-11; 069449)

The community-caretaking doctrine is not a justification for the warrantless entry and search of a home in the absence of some form of an objectively reasonable emergency. 3-18-13

State v. Nash (A-36-11; 068546)

Evidence that the purported victim, J.B., was assigned an aide who accompanied him throughout the day at school constitutes newly discovered evidence as defined by New Jersey jurisprudence. Because the evidence likely would have changed the outcome of the trial if it had been presented to the jury, the integrity of the verdict has been cast in doubt and a new trial is warranted on all charges. 1-22-13

State v. Sowell (A-27-11; 068245)

State v. Ralph Sowell (A-27-11; 068245) 

The expert’s opinion regarding the exchange of narcotics was improper because it related to a straightforward factual allegation that was not beyond the understanding of the average juror, and because the expert referred to facts not contained in the hypothetical question. Under the plain error standard, however, defendant’s conviction is affirmed based on the overwhelming evidence of his guilt. 1-14-13 

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The community-caretaking doctrine is not a justification for the warrantless entry and search of a home in the absence of some form of an objectively reasonable emergency.

State v. Cesar Albert Vargas (A-56-11) (069449)

Argued November 5, 2012 -- Decided March 18, 2013

ALBIN, J., writing for a majority of the Court.

In this appeal, the Court must decide whether, consistent with the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, the community-caretaking doctrine authorizes the police to conduct a warrantless entry and search of a home to check on the welfare of a resident in the absence of the resident’s consent or an objectively reasonable basis to believe that there is an emergency.

2 Olaya called 9-1-1 and three Vineland police officers were dispatched to the address for a “welfare check.” The officers observed that Vargas’s mailbox was full, his Jaguar was covered in dust, and the car’s tires were deflated. No one answered when the officers knocked on Vargas’s door. The officers contacted dispatch and confirmed that no “calls for service” – such as a call for an ambulance or the police – had come from or been directed to Vargas’s apartment. The officers ultimately entered Vargas’s apartment because they said they “had reasons to fear for his safety.” They found no one home and no signs of foul play. In the living room they saw a six-to-eight-inch jar containing what appeared to be marijuana. Olaya opened kitchen cabinets and drawers and found what “appeared to be two canning jars full of marijuana.” A warrant was then secured to search the apartment.

Vargas was indicted for various crimes involving money laundering, possession with intent to distribute marijuana, unlawful possession of firearms, and other offenses. Vargas moved to suppress the evidence on the ground that the police entered and searched his apartment in violation of the warrant requirement. The trial court agreed and suppressed all evidence seized. The court specifically rejected the State’s argument that the community-caretaking doctrine justified the warrantless search, finding that there was no objectively reasonable basis to believe that Vargas’s life or well-being, or the community’s safety was in jeopardy. The trial court determined that there were no “exigent circumstances” to justify the warrantless search of Vargas’s home.

In an unpublished opinion, the Appellate Division reversed, holding that the warrantless search conformed to the community-caretaking doctrine, which it found had been extended to home searches, and that the search was based on “a legitimate concern for [Vargas’s] welfare.” The Supreme Court granted defendant’s motion for leave to appeal. 209 N.J. 99 (2012).

HELD: The community-caretaking doctrine is not a justification for the warrantless entry and search of a home in the absence of some form of an objectively reasonable emergency.

1. “The right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures” is an essential guarantee of both the Fourth Amendment and the State Constitution. The warrant requirement protects an individual in his home from official intrusion whether the purpose of the search is to further a criminal investigation or the government’s enforcement of an administrative regulation. Because a warrantless search of a home is presumptively invalid, the State bears the burden of establishing that such a search falls within one of the few “‘well-delineated exceptions’ to the warrant requirement.” State v. Frankel, 179 N.J. 586, 598 (1978). (pp. 9-15)

2. Courts consider Cady v. Dombrowski to be the origin of the community-caretaking doctrine as an exception to the warrant requirement. 413 U.S. 433, 441 (1973). Although the Supreme Court in Cady recognized law enforcement’s “community caretaking functions” in the context of an automobile search, it never suggested that community-caretaking responsibilities constituted a wholly new exception to the warrant requirement that would justify the warrantless search of a home. Indeed, the Cady Court distinguished between automobile and home searches. The United States Supreme Court has not referenced “community caretaking functions” as an exception to the warrant requirement outside of an automobile search. The United States Supreme Court has never spoken of a community-caretaking exception to the warrant requirement that would allow the warrantless entry of a home absent some exigency. (pp. 15-20)

3. At first, the New Jersey Supreme Court narrowly construed Cady. In one case, the Court concluded that although the police were acting in a community-caretaking role in Cady, the validity of the warrantless search there was saved by exigent circumstances. In another, the Court specifically found that the community-caretaking doctrine could not be invoked to justify the warrantless entry into a private residence. Since then, the Court has applied the community-caretaking doctrine outside of the automobile-impoundment context. But when it has done so to justify a warrantless entry or search, the factual scenarios involved exigent circumstances – circumstances requiring immediate police action. Without the presence of consent or some species of exigent circumstances, the community-caretaking doctrine is not a basis for the warrantless entry into and search of a home. (pp. 21-26)

4. The United States Courts of Appeals have split on whether the community-caretaking doctrine can justify a warrantless search of a home, but no circuit court suggests that the warrantless entry of a home is permissible in the absence of some form of exigency. The present case comes before the Supreme Court because New Jersey case law has blurred the distinction between the community-caretaking and emergency-aid doctrines. In performing community-caretaking tasks, police officers must comply with the dictates of the Fourth Amendment and Article I, Paragraph 7 of the State Constitution. However, in carrying out their community-caretaking responsibilities, police officers may not have time to secure “a warrant when emergent circumstances arise and an immediate search is required to preserve life or property.”State v. Edmonds, 211 N.J. 117, 141 (2012). In such circumstances, a warrant is not required to conduct a search. (p. 26-31)

5. Under this State’s jurisprudence – outside of the car-impoundment context – warrantless searches justified in the name of the community-caretaking doctrine have involved some form of exigent or emergent circumstances. In this case, the trial court applied the correct legal standard and sufficient credible evidence in the record supports its decision. The police did not have an objectively reasonable basis to believe that an emergency threatening life or limb justified the warrantless entry into Vargas’s apartment. The Appellate Division erred by concluding that the community-caretaking doctrine justified the warrantless search of Vargas’s home, even in the absence of a “compelling need for immediate action.” The seizure of evidence from Vargas’s home violated the Fourth Amendment and Article I, Paragraph 7 of the State’s Constitution and must be suppressed. (pp. 31-37)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for proceedings consistent with this opinion.