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Sunday, March 26, 2017


A-0068-16T1/ A-0069-16T1/ A-0070-16T1 AND A-0071-16T1 
These four cases involve application of the Ex Post Facto Clauses of the Constitution. The State appealed from orders dismissing indictments charging defendants with third-degree violations of their special sentences of community supervision for life (CSL), N.J.S.A. 2C:43-6.4(d). Before the alleged CSL violations, the Legislature amended N.J.S.A. 2C:43-6.4. As applied, the amended law retroactively increased defendants' punishment for committing their predicate crimes by raising the degree of the CSL violation from a fourth degree to a third degree, mandating the imposition of Parole Supervision for Life, and subjecting them to extended prison terms. 

In affirming the orders, we held that the commission of the predicate crime, for which defendants received the special sentence of CSL, rather than the alleged CSL violation, is the operative "crime" for determining whether the 2014 amended law violated the Ex Post Facto Clauses. 



The State sought and the trial court granted a motion to require defendant, who had been arrested months earlier on weapons charges and was awaiting trial in the county jail, to provide a buccal swab. The State sought to conduct this search and seizure to compare defendant's DNA with DNA that might be recovered from a weapon found near the crime scene, even though defendant had provided DNA as a result of a previous conviction. Because of the timing of the request and, among other things, the fact that the State hadn't first determined the presence of useful DNA on the weapon, the court found the search unreasonable and reversed. 


In this appeal by the State from a denial of its motion for defendant's pretrial detention, this court addresses several legal issues arising under the new Bail Reform Act, N.J.S.A. 2A:162-15 to -26. 
First, the scope of appellate review of a detention decision generally should focus on whether the trial court abused its discretion, but de novo review applies with respect to alleged errors or misapplications of law within that court's analysis. 
Second, a defendant's prior history of juvenile delinquency and probation violations is a permissible – and at times especially significant – consideration in the detention analysis. 
Third, in appropriate cases, a detention analysis should afford considerable weight to the tier classification of a defendant who has previously committed a sexual offense subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, and whose dangerousness and risk of re-offending have been evaluated on a Registrant Risk Assessment Scale. 
Fourth, a Pretrial Services recommendation to detain a defendant does not create, under Rule 3:4A(b)(5), a rebuttable presumption against release that a defendant must overcome. However, as the Rule states, such a recommendation to detain may be, but is not required to be, relied upon by the court as "prima facie evidence" to support detention. 
The panel also discusses the Impact of the Judiciary's March 2, 2017 clarification of the two-part recommendation formerly used by Pretrial Services for the highest-risk category of defendants. 

The case is remanded to the trial court for reconsideration in light of this guidance, and also to develop the record further on important and unresolved factual questions. 

J.I. v. New Jersey State Parole Board (A-29-15

 J.I. v. New Jersey State Parole Board 
(A-29-15; 076442) 

Arbitrarily imposed Internet restrictions that are not tethered to promoting public safety, reducing recidivism, or fostering an offender’s reintegration into society are inconsistent with the administrative regime governing CSL offenders. The complete denial of access to the Internet implicates a liberty interest, which triggers due process concerns. After the imposition of the total ban for J.I.’s Internet violations, he should have been granted a hearing. The matter is remanded to the full Parole Board for a hearing in which it must determine whether the total computer and Internet ban serves any public-safety, rehabilitative, or other penological goal. 

State v. Carl J. Garrison (A-38-15

 State v. Carl J. Garrison (A-38-15; 076537) 
The evidence of the strip poker game meets the rigorous test set forth in State v. Cofield, 127 N.J. 328 (1992), and therefore was admissible under Rule 404(b). The evidence was properly admitted at trial with an appropriate limiting instruction. 

Monday, March 20, 2017

Gap time credit sometimes available if jail for traffic violation STATE v. WALTERS

Gap time credit sometimes available if jail for traffic violation STATE  v.   WALTERS



June 17, 2016


Submitted January 19, 2016 – Decided
Before Judges Messano, Simonelli and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 14-01-0074.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief).
Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by


The issue before us is whether a defendant is entitled to receive gap-time credits for a sentence of imprisonment imposed following a Title 39 motor vehicle violation. Defendant Matthew J. Walters appeals from the Law Division order that removed gap-time credit from a previously entered judgment of conviction (JOC), the judge concluding that gap-time credit cannot be awarded for a sentence imposed on a Title 39 violation. Having considered the parties' arguments and applicable law, we reverse.
We discern the following facts from the record. On November 16, 2013, while driving in Somers Point, defendant was arrested and charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50.
Thereafter, on November 24, 2013, defendant was a passenger in a vehicle when he got into a physical altercation with the driver, causing the vehicle, with two children in the back seat, to crash into the concrete center barrier. Defendant was arrested that day and remained incarcerated throughout the subsequent proceedings. As a result of the incident, defendant was charged on January 21, 2014, under Cape May County Indictment No. 14-01-0074, with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two). He was also charged with violating his non-custodial probationary sentence for a 2013 conviction for fourth-degree shoplifting, N.J.S.A. 2C:20-11(b)(1).
On February 18, 2014, and before resolution of Indictment No. 14-01-0074, defendant pled guilty to DWI in Somers Point Municipal Court. He was sentenced that day and began serving 180 days in the county jail, where he was already incarcerated since his November 24 arrest.
On April 3, 2014, defendant pled guilty to an amended charge of third-degree aggravated assault on Indictment No. 14-01-0074 and violation of probation for the 2013 shoplifting conviction; count two of the indictment was dismissed pursuant to the plea agreement. On May 23, 2014, he was sentenced in accordance with the plea agreement to a three-year term of imprisonment, to run concurrently with a 365-day sentence for violation of probation. Defendant received jail credit of eighty-six days and gap-time credit of ninety-four days, based upon his custodial DWI sentence which had already been served. On the probation violation, he received jail credit of ninety-two days and no gap-time credit was awarded.
At sentencing, the State voiced no objection to the jail credits, and agreed that defendant was only entitled to gap-time credit on the sentence imposed for the aggravated assault. However, on May 27, 2014, the State moved for reconsideration of the JOC awarding gap-time credit, arguing that defendant had failed to notify the State of his intention to argue for gap-time credit at sentencing, and further, that gap-time credit should not be awarded based on the sentence imposed for a Title 39 motor vehicle violation.
On August 12, 2014, after considering argument, the court issued an oral decision revoking defendant's gap-time credit. The court held that under State v. French, 313 N.J. Super. 457, 466 (Law Div. 1997), defendant was not entitled to gap-time credit because the prior custodial sentence for DWI was imposed for a motor vehicle violation in municipal court, and defendant served his sentence in the county jail, rather than state prison. This appeal followed.1
On appeal, defendant argues the following point:


Defendant contends that he satisfies the requirements of N.J.S.A. 2C:44-5(b)(2) and should receive gap-time credit even though the sentence was for a motor vehicle violation. Thus, he maintains that the trial court erred in finding that a person can only receive gap-time credit for a custodial sentence imposed for a violation of the New Jersey Code of Criminal Justice (Criminal Code), N.J.S.A. 2C:1-1 to -104-9. We agree.
The award of jail credits raises issues of law that we review de novo. State v. Hernandez, 208 N.J. 24, 48-49 (2011) ("[T]here is no room for discretion in either granting or denying [jail] credits."). The gap-time provision in our Criminal Code deals with sentences of imprisonment imposed at different times. N.J.S.A. 2C:44-5(b)(2) provides, in relevant part:
When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:

. . . .

(2) Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served. . . .

[N.J.S.A. 2C:44-5(b)(2).]

"Gap-time credit" is so called because N.J.S.A. 2C:44-5(b) "awards a defendant who is given two separate sentences on two different dates credit toward the second sentence for the time spent in custody since he or she began serving the first sentence." Hernandez, supra, 208 N.J. at 38. A defendant is entitled to gap-time credit when: "'(1) the defendant has been sentenced previously to a term of imprisonment; (2) the defendant is sentenced subsequently to another term; and (3) both offenses occurred prior to the imposition of the first sentence.'" Ibid. (alteration in the original) (quoting State v. Franklin, 175 N.J. 456, 462 (2003)). If these three facts are established, "the sentencing court is obligated to award gap-time credits[.]" Ibid.
The trial judge granted the State's motion for reconsideration of the award of gap-time credit accepting that credit should not be given for a sentence imposed under Title 39. She found that gap-time credit is earned only for a term of imprisonment imposed as part of a sentence for conviction of an "offense" under the Criminal Code. We disagree.
The principles governing statutory interpretation are well-settled. Our goal is to determine and effectuate the Legislature's intent. See, e.g., In re Kollman, 210 N.J. 557, 568 (2012). We begin with the statutory language. Ibid. "We ascribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citations omitted). "When that language 'clearly reveals the meaning of the statute, the court's sole function is to enforce the statute in accordance with those terms.'" State v. Olivero, 221 N.J. 632, 639 (2015) (quoting McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001)). In addition, we strictly construe a penal statute. Ibid. Here, nothing in the language or statutory scheme of N.J.S.A. 2C:44-5(b) supports the conclusion that a defendant must be convicted for a Criminal Code offense to receive gap-time credits.
We find guidance in Franklin, where our Supreme Court held that a juvenile incarcerated pursuant to the Juvenile Code, N.J.S.A. 2A:4A-20 to -48, is entitled to gap-time credits pursuant to N.J.S.A. 2C:44-5(b). Franklin, supra, 175 N.J. at 469. In analyzing the Juvenile Code, the Court reasoned that juveniles are entitled to the same rights as adults and a juvenile's "incarceration" under the Juvenile Code is no different than an adult's "imprisonment" under the Criminal Code. Id. at 464-68. Thus, despite the absence of gap-time credit and the lack of any reference to N.J.S.A. 2C:44-5(b) in the Juvenile Code, a juvenile sentenced to a custodial sentence under the Juvenile Code is eligible for gap-time credit because the statute requires only that a defendant be imprisoned. Id. at 464, 469.
Here, defendant was convicted of a Title 39 violation. Like the Juvenile Code, Title 39 is silent as to gap-time credits, and N.J.S.A. 2C:44-5(b), in turn, makes no reference to Title 39 violations. The gap-time statute only requires that a defendant be "previously . . . sentenced to imprisonment," prior to the imposition of a subsequent sentence of imprisonment for an offense under the Criminal Code. N.J.S.A. 2C:44-5(b). As was the juvenile in Franklin, defendant is eligible for gap-time credit.
In reaching this conclusion, we reject the trial court's finding, and the State's argument here, that French requires gap-time credits be denied to defendant. We must first note that the decision is a Law Division case, and we are not bound by its holding. S & R Assocs. v. Lynn Realty Corp., 338 N.J. Super. 350, 355 (App. Div. 2001). Nevertheless, French held that incarceration in a state prison, regardless of the court imposing the sentence, satisfies the definition of "imprisonment" for purposes of gap-time credits under N.J.S.A. 2C:44-5(b). French, supra, 313 N.J. Super. at 467. It did not address the situation here, where defendant was serving a custodial term in a county jail imposed by a municipal court for a Title 39 violation. Thus, French was misapplied by the trial court.
We also disagree with the State's argument that gap-time credit is not earned because DWI is not an "offense" as defined by the Criminal Code. See State v. Hammond, 118 N.J. 306, 307 (1990). Hammond limits application of principles of liability under the Criminal Code to Title 39 offenses. Id. at 312-13. However, by its very terms, N.J.S.A. 2C:44-5(b)(2) does not require that the "previous[] . . . sentence[] to imprisonment" be a sentence based upon the conviction of an offense under the Criminal Code. Only the "subsequent[] sentence[] to another term" must be "for an offense." N.J.S.A. 2C:44-5(b). Since defendant meets the three-prong requirements of N.J.S.A. 2C:44-5(b)(2), he is entitled to receive gap-time credits. Franklin, supra, 175 N.J. at 462.
Lastly, we recognize that the overall purpose of the statute is "to avoid manipulation of trial dates to the disadvantage of defendants and to put defendants in the same position that they would have been had the two offenses been tried at the same time." State v. L.H., 206 N.J. 528, 529 (2011). However, the absence of intentional prosecutorial delay by the State is not dispositive of the defendant's entitlement to gap-time credits. Hernandez, supra, 208 N.J. at 38 (citing Franklin, supra, 175 N.J. at 463-64). As a matter of practice, courts do not engage in fact-finding proceedings  [1140] in every case to determine whether or not prosecutorial manipulation has occurred. See, e.g., State v. Ruiz, 355 N.J. Super. 237, 245 (Law Div. 2002). As noted, defendant is entitled to gap-time credit because he  [15] because he satisfied the three prongs of N.J.S.A. 2C:44-5(b)(2).
Reversed. The matter is remanded to the Law Division for amendment of the judgment of conviction to reflect the proper award of gap-time credits.

1_ We removed the appeal from our Excessive Sentence Oral Argument (ESOA) calendar, gave the parties the opportunity to file briefs, and listed the appeal on our plenary calendar.

Monday, March 13, 2017


Defendant challenges the seizure of drugs and a handgun from his Galloway Township motel room pursuant to a search warrant based on probable cause issued by an Atlantic City Municipal Court judge. We hold that although the search warrant application failed to comport with the procedures promulgated for the cross-assignment of municipal court judges pursuant to State v. Broom-Smith, 201 N.J. 229 (2010), defendant's constitutional rights were not violated by the procedural deficiency and therefore suppression of the contraband found in defendant's motel room is not warranted.
We further hold that, with respect to a separate warrantless search of the center console of a rental vehicle defendant was driving, the police were authorized to conduct a limited search for credentials after defendant was unable to produce his driver's license or the vehicle's registration, insurance card, and rental agreement. 


page2image17536 page2image17696

Defendant was convicted of aggravated assault, kidnapping, and other offenses. His victims were his long-time girlfriend and the host of a party they attended. Defendant contends, as his principal point on appeal, that the trial judge mistakenly denied his pre-trial motions to compel production of his girlfriend's mental health and medical records. The court concludes that the requested records were privileged, and defendant failed to demonstrate grounds to pierce the privilege. Furthermore, even apart from issues of privilege, defendant failed to meet the heavy burden the Supreme Court has applied to requests for discovery outside Rule 3:13-3. The court also questions whether any relief would have been appropriate absent notice to the third-party victim whose records defendant sought. 


Defendant appealed from an order detaining him pretrial pursuant to the Bail Reform Act (the Act), N.J.S.A. 2A:162-15 to -26. The State presented the complaint-warrant, the affidavit of probable cause, the Preliminary Law Enforcement Incident Report and the Public Safety Assessment to establish probable cause for defendant's arrest and grounds for detention. Collectively, the documents demonstrated that a firearm had been discharged, police officers personally observed defendant in possession of a gun and seized the weapon and spent shell casings. Pretrial Services recommended that defendant be detained, or released with the highest level monitoring, including electronic monitoring.
Defendant objected, arguing a live witness with knowledge of the incident sufficient to permit meaningful cross- examination was required. The judge overruled the objection, considered the State's proffered evidence and entered the order of detention.
On appeal, defendant argued that permitting the State to establish probable cause by proffer and without calling a witness violated his due process rights and the Act. The Court disagreed and affirmed the detention order, finding that allowing the State to proceed by proffer did not violate due process or the Act. However, the court noted that at detention hearings under the Act, the judge retains discretion to reject the adequacy of the State's proffer and compel production of a "live" witness. 


In this appeal, we consider the application of the "plain feel" exception to the warrant requirement, Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993); State v. Jackson, 276 N.J. Super. 626, 628 (App. Div. 1994), to a strip search that was conducted after defendant was arrested on a warrant for failing to pay a $6.50 traffic fine. In the absence of a warrant or consent, N.J.S.A. 2A:161A-1 prohibits a strip search of a person "detained or arrested for commission of an offense other than a crime" unless the search is based on probable cause and "a recognized exception to the warrant requirement." N.J.S.A. 2A:161A-1. Guidelines issued by the Attorney General's Office set forth even more exacting criteria to be satisfied before a strip search is conducted. We conclude the plain feel exception did not apply and, further, that the seizure of drugs from defendant's person was not objectively reasonable. We reverse defendant's convictions and remand for a hearing to determine whether the search of an automobile pursuant to a search warrant was sufficiently free of taint from the unlawful search and seizure. 


The State appeals, on leave granted, a post-trial order to interview alternate jurors following the jury's return of a guilty verdict against defendant Kalil Griffin on charges of felony murder, robbery, and weapons offenses. Defense counsel sought the interviews after one of the alternates telephoned him after the verdict, claiming several jurors routinely met to discuss the case during the trial. The alternate indicated to defense counsel the jurors participating in those discussions decided to vote guilty before summations, and claimed she heard the juror who organized them say he was going to make sure defendant did not "get off" like his co-defendant.
Delineating the obligations of a trial judge confronted with allegations of juror misconduct made after verdict as opposed to at trial, the panel concludes the alternate's allegations, even if substantiated, would not support setting aside the conviction. Because the allegations did not warrant the extraordinary procedure of calling back discharged jurors for questioning, it reverses the order and remands for sentencing and the entry of a judgment of conviction. 

State v. Scott Robertson (A-58-14

State v. Scott Robertson (A-58-14; 075326)
          The Crowe factors are not a good fit to assess license
          suspensions in driving while intoxicated (DWI) cases.
          Defendants who seek a new trial before the Law
          Division should be presumptively eligible for a stay
          of a driver’s license suspension.  The State can
          overcome that presumption by showing that a stay would
          present a serious threat to the safety of any person
          or the community.  If no conditions would mitigate
          that risk, the court should not stay the sentence.  If
          a defendant is convicted of DWI by the Law Division,
          the defendant has the burden to justify a stay of a
          driver’s license pending appeal to the Appellate
          Division by demonstrating the three elements set forth
          in Rule 2:9-4.  If a stay is granted, the court may
          impose appropriate conditions similar to those
          available after a defendant’s conviction in municipal
          court.  Municipal court and trial judges should set
          forth reasons on the record when they rule on a stay

State v. William R. Joe (A-62-15;

State v. William R. Joe (A-62-15; 077034)
          Consistent with the policy purposes of Rule 3:21-8, as
          explained in State v. Hernandez, 208 N.J. 24 (2011),
          defendants who are confined out of state on non-New
          Jersey charges are not entitled to jail credit for time
          spent in pre-sentence custody.

State v. C.H. (A-56-15;

State v. C.H. (A-56-15; 076535)
          Defendant’s sentences should be viewed together and jail
          credit applied to the front end of the aggregate
          imprisonment term for both indictments.  To the extent
          that State v. Hernandez, 208 N.J. 24 (2011), has been
          read differently with respect to consecutive sentences,
          Hernandez is modified as follows:  double credit should   not be awarded where a defendant is sentenced to
          consecutive sentences under separate indictments and
          receives the optimal benefits of jail credit for time
          spent in pre-sentence custody.  Instead, the sentencing
          court should treat the sentences as a unified proceeding
          and maximize the benefits to the defendant by applying
          jail credit to the front end of the imprisonment term.