STATE OF NEW JERSEY VS. ARMANDO CARREON A-5501-12T1

STATE OF NEW JERSEY VS. ARMANDO CARREON
          A-5501-12T1

This appeal requires us to consider whether a never- licensed driver may be fined and sentenced to a custodial term under the penalty provisions of N.J.S.A. 39:3-10. Because we agree that the statute allows a fine or imprisonment but not both, even for drivers, who, like defendant, have never been licensed, we reverse defendant's sentence and remand to the Law Division for resentencing. 

STATE OF NEW JERSEY VS. DONNA JONES A-0793-13T1

STATE OF NEW JERSEY VS. DONNA JONES
          A-0793-13T1

We granted the State leave to appeal from an order that suppressed the results of a blood sample taken without a warrant prior to Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), and now reverse. Defendant caused a multiple vehicle accident, resulting in personal injuries that required hospitalization. Emergency personnel took approximately thirty minutes to extricate the unconscious defendant from her vehicle and the police investigation took several hours.
It is undisputed that the blood sample was obtained consistent with New Jersey law that existed at the time. We need not decide whether McNeely should be applied retroactively because the facts support a warrantless blood sample even if McNeely applies. Although McNeely rejected a per se exigency rule, it adhered to the totality of the circumstances analysis set forth in Schmerber v. California, 384 U.S. 757, 771-72, 86 S. Ct. 1826, 1836, 16 L. Ed. 2d 908, 920 (1966), stating the metabolization of alcohol was an "essential" factor in the analysis. Further, the Court noted that the facts in Schmerber which, like here, included an accident, injuries requiring hospitalization, and an hours-long police investigation, were sufficient to justify a warrantless blood sample. 

STATE OF NEW JERSEY VS. ALFRED J. SMITH A-0173-12T3

STATE OF NEW JERSEY VS. ALFRED J. SMITH
          A-0173-12T3

In this pre-State v. Henderson, 208 N.J. 208 (2011)
matter, we reversed the denial of defendant's motion to
suppress an out-of-court eyewitness identification
following a show-up and vacated defendant's conviction. We
determined police failed to properly comply with the
recording requirements of State v. Delgado, 188 N.J. 48, 63
(2006). Specifically, they did not detail the out-of-court
identification procedures or preserve the language
exchanged between police and the witness prior to the show-
up. More important, the motion judge made flawed factual
findings following the Wade hearing and we found no support
in the record for the conclusion the victim's
identification of defendant was reliable. The victim's
description of the man who mugged her was he was "tall and
black." Scrutinizing the totality of the facts and
circumstances, we rejected as unfounded the motion judge's
finding that the victim had the ability to perceive and
accurately identify defendant as her attacker.



    

IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF P.H. A-1345-13T4

IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF
          P.H.

A-1345-13T4
We consider the application of the expungement statute, N.J.S.A. 2C:52-1 to -32, where petitioner was charged with a fourth degree offense but ultimately agreed to a violation of a statute for which he paid a civil penalty. Petitioner requested expungement of all criminal records, which was granted by the trial judge; records of the civil violation and the file of the NJSPCA were not subject to expungement.
The State appealed, advancing numerous reasons for reversal, primarily arguing the final disposition controls whether expungement relief is available. Maintaining the initial criminal charges were part of the same file that was disposed of through a plea agreement allowing defendant to pay a civil penalty, the State asserts expungement cannot be permitted. We disagreed and concluded petitioner was not convicted and the final disposition was not a plea agreement. Rather, the criminal charges were dismissed. Accordingly, expungement was permitted under N.J.S.A. 2C:52-6(a). 

STATE OF NEW JERSEY VS. CALVIN PRESLEY, ET AL. A-4816-12T2

STATE OF NEW JERSEY VS. CALVIN PRESLEY, ET AL.
          A-4816-12T2

In State v. McCann, 391 N.J. Super. 542 (App. Div. 2007), we announced a prospective "bright-line rule" that called for invalidating search warrants issued by a judge who was bound to recuse himself or herself based on a prior relationship. Upon being advised he had prosecuted one of the defendants when he was an assistant prosecutor, the trial judge recused himself. So, the question here is not one of recusal but of remedy. Defendants here ask us to apply McCann to the following facts: the judge prosecuted only one of the defendants; no defendant alleges the judge was biased or aware of the disqualifying facts when he issued the warrants or that there was insufficient probable cause for their issuance; and finally, the defendant prosecuted by the judge withheld the disqualifying facts while appearing before the judge on unrelated matters for "strategic" reasons for over a year. We conclude that McCann is distinguishable; the remedy sought by defendants will not serve the interests of the Code of Judicial

Conduct; and the appropriate remedy should be determined by what is "required to restore public confidence in the integrity and impartiality of the proceedings, to resolve the dispute in particular, and to promote generally the administration of justice." DeNike v. Cupo, 196 N.J. 502, 519 (2008). 

STATE OF NEW JERSEY VS. TWO THOUSAND TWO HUNDRED NINETY-THREE DOLLARS ($2,293) IN UNITED STATES CURRENCY A-4929-11T3

STATE OF NEW JERSEY VS. TWO THOUSAND TWO HUNDRED
          NINETY-THREE DOLLARS ($2,293) IN UNITED STATES
          CURRENCY
          A-4929-11T3

The State sought forfeiture of monies seized during the execution of a search warrant; defendant filed an answer denying that the monies were subject to forfeiture. The defendant was subsequently indicted, and the State obtained a stay of the civil forfeiture proceedings pending resolution of the criminal case. Defendant was found guilty by a jury and sentenced. While still incarcerated, he moved in the Special Civil Part for the return of the monies seized. He requested oral argument on the motion.
The notice of the motion hearing was sent to a post office box at Northern State Prison, the address provided by defendant in his motion papers. However, before the hearing date, the notice was returned to court marked "return to sender, insufficient address, unable to forward." Nevertheless, the matter proceeded on the hearing date with only the prosecutor present.
Without testimony, the judge entered an order denying defendant's motion and ostensibly granting the State a judgment of forfeiture.
We reversed, finding defendant was deprived due process by the Court's failure to provide notice of the hearing. In providing guidance for future proceedings, we commented on the prove of predicate facts necessary before the State may invoke the presumption contained in N.J.S.A. 2C:64-3(j). 

STATE OF NEW JERSEY VS. QUAHEEM JOHNSON A-3363-13T3

STATE OF NEW JERSEY VS. QUAHEEM JOHNSON
          A-3363-13T3

In this case of first impression we held that a trial court improperly terminates a defendant's prosecution, within the meaning of N.J.S.A. 2C:1-9, by accepting a

partial verdict where the jury is deadlocked as to greater, charged offenses, but is unanimous in its finding of guilt as to uncharged, lesser-included offenses.
An indictment charged defendant with various offenses, including murder, felony murder and armed robbery, relating to his committing two separate robberies and killing one of the victims. A jury could not reach a unanimous verdict as to those charges but, as to murder and armed robbery, convicted defendant of uncharged, lesser-included offenses. Despite the jury being deadlocked as to the greater, charged offenses, the trial court accepted the jury's verdict and had it recorded. The State sought thereafter to retry defendant on felony murder, and defendant moved to bar a retrial arguing that double jeopardy principles and the improper termination of his prosecution barred a new trial as to those charges. The trial court agreed with defendant's arguments and granted his motion. We stayed further proceedings and granted the State leave to appeal the trial court's order.
After considering the State's argument in the context of the unusual circumstances of this case, we agreed with the trial court that a retrial on felony murder was barred by the improper termination of defendant's prosecution arising from the taint to the jury's verdict caused by the trial court's (1) acceptance of a partial verdict, (2) its failure to insist on there being a unanimous not guilty verdict before taking the verdict on the uncharged, lesser- included offenses, (3) its failure to review the verdict sheet with the jurors, combined with (4) the apparent confusion caused by the court's initially telling the jury to not inform the court if it was deadlocked. We also again restated our concern about the problems that can be created by accepting partial verdicts before a trial court has conducted the appropriate investigation as to whether a jury's deadlock is intractable. 

STATE OF NEW JERSEY VS. DANIEL A. BORJAS A-6292-11T2

STATE OF NEW JERSEY VS. DANIEL A. BORJAS
          A-6292-11T2

Defendant was found guilty by a jury of three counts of knowingly making false government documents, second- degree offenses proscribed by N.J.S.A. 2C:21-2.1(b), and four counts of knowingly possessing false government documents, fourth-degree offenses proscribed by N.J.S.A. 2C:21-2.1(d). The incriminating items were created or

stored in hard drives on computers at defendant's residence. The items were discovered by law enforcement officers pursuant to a search warrant, although the officers found no printouts of the false items.
We reject defendant's argument that subsections (b) and (d) of N.J.S.A. 2C:21-2.1 are unconstitutionally overbroad because they allegedly infringe too much upon protected forms of expression. In doing so, we do not foreclose a future "as-applied" challenge to the statute by an artist, student, or other person who, unlike the present defendant, makes or stores false images for benign reasons involving constitutionally-protected speech.
Additionally, we reject defendant's argument that the statute is void for vagueness because it lacks an express element requiring the State to prove a defendant's specific intent to use the false items for illicit purposes. We also reject defendant's criticisms of the trial judge's jury instruction defining the term "document" under the statute to encompass items or images stored on a computer. The instruction is consistent with the broader meaning associated with the term "document" in common modern usage.
In an unpublished portion of the opinion, we uphold defendant's seventy-eight-month flat custodial sentence. 

State v. Julie L. Michaels (A-69-12

State v. Julie L. Michaels (A-69-12; 072106)

          Defendant’s confrontation rights were not violated by
          the admission of Dr. Barbieri’s report or his
          testimony regarding the blood tests and his
          conclusions drawn therefrom.  Dr. Barbieri was
          knowledgeable about the testing process, independently
          verified the correctness of the machine-tested
          processes and results, and formed an independent
          conclusion about the results.  Defendant’s opportunity
          to cross-examine Dr. Barbieri satisfied her right to
          confrontation on the forensic evidence presented
          against her.

State v. Reginald Roach (A-129-11

State v. Reginald Roach (A-129-11; 068874)

          Defendant’s confrontation rights were not violated by
          the testimony of the analyst who matched his DNA
          profile to the profile left at the scene by the
          perpetrator.  Defendant had the opportunity to
          confront the analyst who personally reviewed and
          verified the correctness of the two DNA profiles that
          resulted in a highly significant statistical match
          inculpating him as the perpetrator.  In the context of
          testing for the purpose of establishing DNA profiles
          for use in an expert’s comparison of DNA samples, a
          defendant’s federal and state confrontation rights are
          satisfied so long as the testifying witness is
          qualified to perform, and did in fact perform, an

independent review of testing data and processes,
          rather than merely read from or vouch for another
          analyst’s report or conclusions.

State v. Bryden Robert Williams (A-5-12;

State v. Bryden Robert Williams (A-5-12; 070388)

          Defendant’s failure to object to the admission of the
          testimony on confrontation grounds and his decision to
          cross-examine the medical examiner constitute a waiver
          of his right of confrontation.

State v. Fausto Camacho (A-30-13;

 State v. Fausto Camacho (A-30-13; 072525)

          The trial court’s failure to provide a no-adverse-
          inference jury instruction constitutes trial error,
          requiring a harmless-error analysis, and does not
          mandate automatic reversal.  In this case, the error
          was harmless.

State v. Vonte Skinner (A-57/58-12;

State v. Vonte Skinner (A-57/58-12; 071764)

          The Appellate Division correctly reversed defendant’s
          conviction because the violent, profane, and
          disturbing rap lyrics authored by defendant constitute
          highly prejudicial evidence that bore little or no
          probative value as to any motive or intent behind the
          attempted murder offense with which he was charged.

State v. Kevin Gamble (A-53-12;

 State v. Kevin Gamble (A-53-12; 071234)

          Under the totality of the circumstances, which
          provided the officers with a reasonable and
          articulable suspicion that defendant was engaged in
          criminal activity, the investigatory stop and
          protective sweep of the passenger compartment of the
          van were valid.

State v. Yolanda Terry and Teron Savoy (A-71-12; 072775)

 State v. Yolanda Terry and Teron Savoy  (A-71-12;
          072775)

     A confidential marital communication protected under           the marital communications privilege does not lose its           privileged status by virtue of a wiretap under the New           Jersey Wiretapping and Electronic Surveillance Control           Act.  The Court, however, proposes a crime-fraud           exception to the marital communications privilege and,           pursuant to the Evidence Act of 1960, transmits it for           approval by a joint resolution of the Legislature and           for the Governor’s signature.

First Offenders Dismissal Program for Prostitution Charges