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Saturday, January 31, 2015
Sunday, January 25, 2015
STATE OF NEW JERSEY VS. JEROME L. FAUCETTE A-6123-11T3In reviewing the Law Division's order denying defendant's motion to suppress his custodial statement, we consider not only whether defendant's statement was voluntarily and knowingly made, but also whether the fourteen-day break-in-custody period following a defendant's invocation of the right to counsel, announced in Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010), and applied by our Supreme Court in State v. Wessells, 209 N.J. 395 (2012), must also be applied when a defendant invokes the right to remain silent. In Shatzer, the United States Supreme Court specifically recognized an enhanced protective period must follow a break in custody caused by a suspect's invocation of the right to counsel. We conclude such an extensive period of protection need not accompany a break in custody caused by a defendant's request to cease the interrogation. 01/15/15
Thomas Griepenburg v. Township of Ocean (A-55-13; 073290)
The challenged Ordinances represent a legitimate exercise of the municipality’s power to zone property consistent with its Master Plan and MLUL goals.
In the Matter of Raymond A. Reddin, Judge of the Superior Court (D-123-13; 074439)
In the Matter of Gerald Keegan, Judge of the Municipal Court (D-124-13; 074440)
The Court revises the standard to assess whether a judge’s personal behavior creates an appearance of impropriety, and adds an element of objective reasonableness to the test. The Court adopts the following new standard: “Would an individual who observes the judge’s personal conduct have a reasonable basis to doubt the judge’s integrity and impartiality?” Applying that standard, the Court finds by clear and convincing evidence that respondents violated Canons 1, 2A, and 5A(2) of the Code of Judicial Conduct, but imposes no sanctions in light of the Court’s revision of the applicable standard.
Thursday, January 15, 2015
STATE OF NEW JERSEY VS. JACOB R. GENTRY A-2481-11T4Defendant was acquitted of murder but convicted of aggravated manslaughter and endangering an injured victim. We reversed the conviction and remanded for retrial due to several trial errors. We found plain error, where the trial judge failed to instruct the jury that self-defense applied to manslaughter as well as murder, and the evidence, viewed favorably to the defense, would support a claim of self-defense. In the course of our discussion, we addressed the issue of self- defense in the context of mutual combat. During mutual combat, a defendant may use deadly force in self-defense, when he has not previously used or threatened deadly force against his opponent but the opponent begins using deadly force, defendant cannot safely retreat, and defendant reasonably believes he needs to use deadly force to save himself from death or serious bodily injury.
We also found reversible error where the prosecutor improperly cross-examined defendant about a statement made by an absent co-defendant. When defense counsel attempted, in his closing argument, to mitigate the prejudicial impact of that cross-examination, the trial judge erroneously permitted the prosecutor to tell the jury, in summation, that the court had precluded the co-defendant's statement from being admitted in evidence.
State v. T.J.M. (A-76-12
The Court finds no prosecutorial or trial court errors, apart from the prosecutor’s comment on the presence of certain people in front of whom Chloe testified, which was adequately addressed by the trial court’s appropriate and curing instruction. The points raised by the dissent and defendant have been considered by virtue of this appeal of right, and the Court holds that they do not merit disrupting the jury’s verdict.
State v. K.S. (A-36-13
Because the record includes no admissions of conduct to support the truth of the allegations in defendant’s dismissed adult charges and diverted and dismissed juvenile charges, those charges were not appropriate factors to be considered in deciding whether to admit defendant into PTI. Therefore, the judgment of the Appellate Division is reversed and the matter is remanded to the prosecutor for reconsideration of defendant’s eligibility for PTI.
Tuesday, January 06, 2015
STATE OF NEW JERSEY VS. HUGO FIERRO A-4641-12T4Defendant, a Newark police officer, was convicted by a jury of assault charges and official misconduct as a result of an incident recorded by an outdoor surveillance camera during which defendant drew his service weapon while off-duty and struck a man in the face with the gun, causing the man's nose to bleed. On his conviction for official misconduct, defendant was sentenced to a mandatory five-year term of imprisonment without parole.
The conviction is affirmed. The trial court did not force defendant to testify in order to provide his version of the incident when it declined to instruct the jury after the State's case-in-chief on a justification defense pursuant to N.J.S.A. 2C:3-7(a), use-of-force by a police officer. Also, the split verdict — conviction on aggravated assault with a deadly weapon but acquittal on possession of a weapon for an unlawful purpose — did not require reversal on the ground that the jury did not understand the elements of the aggravated assault charge.
Saturday, January 03, 2015
STATE OF NEW JERSEY VS. MAYTEE CORDERO
In this third-degree shoplifting case, the State sought an in limine ruling permitting it to introduce evidence of a previous alleged shoplifting incident involving defendant and her codefendant to prove intent and the absence of mistake. The trial judge declined to rule on the admissibility of the 404(b) evidence until after the defense case, although the judge provided his tentative view that the evidence would be admissible if defendant testified that she unknowingly removed the unpurchased merchandise. On appeal, defendant challenges the court's procedure, which she claims chilled her exercise of her right to testify. We affirm, holding that a trial court may, in its discretion, await the conclusion of a defendant's case before deciding the admissibility of 404(b) evidence to prove intent, or lack of mistake. Awaiting the rebuttal case enables the court to confirm the defense will actually be offered, and to assess the contours of the defense, which informs the court's decision regarding the relevance of the 404(b) evidence, and whether the risk of undue prejudice outweighs its probative value.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. N.M. AND J.K.IN THE MATTER OF J.K, JR. AND J.K. A-0349-13T3
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. N.M. AND J.K.IN THE MATTER OF J.K, JR. AND J.K.
We reverse the trial court's finding that a mother abused or neglected her two children by bringing them to a public park to meet her former boyfriend, who followed her home and raped her in the children's presence. The former boyfriend had earlier refused to provide his address for a background check, and a caseworker advised the mother not to allow him around the children.
A prior substantiation of abuse or neglect against the mother for leaving her youngest son with the child's father who seriously injured him, did not support the court's conclusion that the mother demonstrated a history of exercising poor judgment and exposing her children to violence. The Division failed to establish that the children suffered harm as a result of defendant's actions, and her conduct was neither reckless nor grossly negligent.
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. R.W. IN THE MATTER OF M.W. AND Z.W. A-4545-12T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. R.W. IN THE MATTER OF M.W. AND Z.W.
A mother's admission to a one-time use of marijuana, while accompanied by her infant, is not proof by the preponderance of the evidence that she abused and neglected her child within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). Furthermore, the manner in which the New Jersey Division of Child Protection and Permanency attempted to prove the conduct——by moving into evidence a document containing a caseworker's summary of an interview with a staff member at the residential placement where the mother had been living——raised critical evidential issues.
STATE OF NEW JERSEY VS. SHERRONE H. ROBINSON
This appeal calls upon us to determine the proper sentence that survives merger of defendant's two convictions. Defendant pled guilty to second-degree burglary, N.J.S.A. 2C:18-2, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Pursuant to the negotiated plea agreement, defendant was sentenced to a four-year prison term on the burglary charge, subject to an eighty-five percent parole ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent five-year prison term on the weapon offense, subject to a mandatory minimum term of three years under the Graves Act, N.J.S.A. 2C:43-6(c).
Defendant appealed, arguing that the convictions should merge since the sole intended purpose of the weapon involved commission of the burglary. Defendant further argues that, upon merger, the burglary sentence should survive and the sentence on the weapon offense should be vacated. The State agrees that merger is appropriate, but that the most severe aspect of each sentence should survive. On the specific facts of this case, we conclude that imposing the more severe aspects of the sentence for each offense is consistent with the plea agreement. Accordingly, on the merged convictions, defendant's sentence shall be modified to a five-year term of imprisonment, of which four years shall
be subject to an eighty-five percent parole ineligibility period under NERA.
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. B.O. AND T.E. IN THE MATTER OF T.E.E. A-4780-12T1/ A-4946-12T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. B.O. AND T.E. IN THE MATTER OF T.E.E.
The court affirms the trial judge's finding of neglect against both parents based on evidence that, with the father's knowledge, the mother slept with her seven-week-old infant in the same bed while she was under the influence of illegal drugs. The baby was partially smothered, causing brain damage. The opinion emphasizes the deference owed to the judge's credibility findings and the risk impaired parents pose to an infant in their care.
STATE OF NEW JERSEY VS. GREGORY MAURER
In this appeal we reversed the Law Division's denial of defendant's appeal from the prosecutor's rejection of his application for "Track Two" sentencing into Drug Court for CDS offenses. In rejecting defendant's appeal, the Law Division relied solely on defendant's prior conviction for a weapons crime, which the judge found rendered him ineligible, pursuant to the guidelines set forth in the Administrative Office of the Courts' "Manual for Operation of Adult Drug Courts in New Jersey" (July 2002).
We considered the history of New Jersey's successful Drug Court program, the application of the Manual's guidelines, and the Drug Court Statute, N.J.S.A. 2C:35-14 as recently amended. Having done so, we determined barring defendant from consideration for Drug Court was unfair and, if permitted, would constitute disparate sentencing because "Track One" offenders as facing sentencing for crimes such as second-degree robbery could be considered for entry into Drug Court but defendant could not. We therefore, reversed the Law Division's order and remanded the matter for further consideration of defendant's application, including the extent of his drug addiction, if any, and his dangerousness, including his criminal history, as provided for in the Drug Court Manual for "Track Two" offenders.
STATE OF NEW JERSEY VS. MARKEES PRUITT
In State v. Pruitt, 430 N.J. Super. 261 (App. Div. 2013) (Pruitt I), we determined that defendant could establish a prima facie Gilmore violation even if there was only one African-American juror on the panel and the prosecutor used a peremptory challenge to excuse that juror. Following the remand ordered in Pruitt I, the trial court held a hearing concerning the prosecutor's reasons for excusing the lone African-American juror. The trial court found that the prosecutor gave a non-discriminatory explanation which was not a pretext to exclude African-Americans from the jury. On this appeal (Pruitt II) we affirmed that decision.
During the remand hearing, defense counsel did not argue that there were allegedly comparable non-African-American jurors whom the prosecutor did not challenge. However, defendant raised the issue on this appeal. Our opinion in Pruitt II emphasizes that failure to raise that issue during the Gilmore hearing, which in this case was the remand hearing, unfairly deprived the prosecutor of the opportunity to explain his reasons for not challenging the allegedly comparable jurors and deprived the trial court of the opportunity to consider those reasons. Although we found the defendant was not entitled to raise his comparison argument for the first time on appeal, we nonetheless reviewed the record de novo and found no basis to disturb the result reached by the trial court.
Absent exceptional circumstances, a finding of abuse or neglect cannot be sustained based solely on a newborn’s enduring methadone withdrawal following a mother’s timely participation in a bona fide treatment program prescribed by a licensed healthcare professional to whom she has made full disclosure.
In the Matter of Scott P. Sigman, An Attorney at Law
Respondent’s unethical conduct, consisting of repeatedly breaching the trust that must exist between a law firm and the professionals whom it employs, warrants the imposition of a prospective thirty-month suspension of his license to practice law, as reciprocal discipline under Rule 1:20-14.
DWI offenses separated by more than ten years are eligible for “step-down” provision. State v. Revie
DWI offenses separated by more than ten years are eligible for “step-down” provision. State v. Revie __ NJ __ (2014) A-31-13
The N.J.S.A. 39:4-50(a)(3) “step-down” provision can benefit a DWI offender more than once, provided that the defendant’s most recent and current DWI offenses are separated by more than ten years. In this case, defendant should be sentenced as a second DWI offender with respect to any term of incarceration imposed, and as a third DWI offender with respect to the applicable administrative penalties.
Because a sentencing analysis is a fact-sensitive inquiry, which must be based on consideration of all the competent and credible evidence raised by the parties at sentencing, the trial court must consider evidence of a defendant’s post-offense conduct. This matter is remanded for resentencing to ensure consideration of all of the facts relevant to the applicable aggravating and mitigating factors.