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 

PROFESSIONAL OFFICE SPACE IS AVAILABLE IN EDISON LAW OFFICE

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2053 Woodbridge Ave.

Edison, NJ 08817

Excellent space for an Attorney, Financial Planners, Accountant, Insurance Agents, and other Business Professionals as a 2nd location or location to meet clients in Edison.

The offices are located on the 1st floor of the building.

2 rooms office  

office room # 6 approx 12.4 x 9.4       

and front room appr 8 x 9 -office room # 5

plus use of reception room  16.6 x 7.2

and use of storage area in basement

         

$600 per month  [was $700]

Call 732-572-0500

    Owner of building is local attorney, Kenneth Vercammen who handles Personal Injury, Elder Law, and Criminal Law.