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Monday, May 29, 2017

In the Matter of Mark G. Legato, Regan C. Kenyon, Jr., Alexander D. Walter, Attorneys at Law (D-99/100/101-15; 077464

In the Matter of Mark G. Legato, Regan C. Kenyon, Jr., 
Alexander D. Walter, Attorneys at Law 
(D-99/100/101-15; 077464,077465, 077467) 

For respondents Legato and Kenyon, the Court imposes indeterminate suspensions from the practice of law, pursuant to Rule 1:20-15A(a)(2). The Court disbars respondent Walter, pursuant to Rule 1:20-15A(a)(1). 

State v. Fernando Carrero, Jr. (A-13-16;

 State v. Fernando Carrero, Jr. (A-13-16; 078071) 

The trial testimony presents a rational basis on which the jury could acquit defendant of murder but convict him of passion/provocation manslaughter. Although the passion/provocation charge is inconsistent with defendant’s theories of self-defense and accidental shooting, when the evidence supports such a charge, a defendant may be entitled to the requested instruction regardless of whether the charge is consistent with the defense. 

Wednesday, May 17, 2017


The court granted the State's leave to appeal from an illegal sentence. Defendant was charged with second-degree robbery, second-degree burglary, second-degree aggravated assault (serious bodily injury) and third-degree aggravated assault (significant bodily injury). After indicating the assault charges would merge into the robbery under the facts of the case and the effect of the mergers would be defendant's eligibility for special probation, N.J.S.A. 2C:35-14 (the Statute), the judge accepted defendant's guilty pleas to all four counts of the indictment. At sentencing, over the State's continued objection, the judge sentenced defendant to special probation, conditioned on his entry into, and completion of, Drug Court.
The court reversed, concluding that although the 2012 amendment to the Statute made defendants convicted of second- degree robbery and burglary eligible for special probation, the Legislature intended to continue to bar a defendant convicted of
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aggravated assault from receiving such a sentence. Similar to those cases in which the Legislature clearly intended certain mandatory sentences survive merger, a conviction for one of the Statute's disqualifying offenses survives merger and bars defendant's sentence to special probation. 


The court examines defendant's challenge to denial of post- conviction relief because the trial judge had been his attorney in more than one matter seventeen years earlier. Although the trial record contained no mention of the judge's prior representation and does not definitively show the trial judge
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actually remembered defendant was his former client, testimony before the PCR court confirms the State and defense counsel were informed the judge had served as defendant's private counsel. The court rejects the PCR judge's conclusion to deny PCR suggesting counsel's decision not to seek recusal represents a "valid trial strategy," which cannot be second-guessed.
Reviewing the newly revised Code of Judicial Conduct, specifically Canon 3.17, which mandates disqualification for a period of seven years following the conclusion of that representation and recognizes "disqualification for a period of time in excess of seven years from the conclusion of the representation may be required in certain circumstances." The court reasoned the necessity of preserving the integrity of impartiality and avoiding all appearances of impropriety must be paramount. The court concluded prejudice envelops the entire process by casting doubt and leaving the lingering question of whether a trial judge's familiarity favored a defendant, or conversely, caused a trial judge to overcompensate so as not to reflect an appearance of bias. The court held when an instance arises where a judge previously represented a criminal defendant, the prior representation and relationship shall be clearly stated on the record, and the judge then be disqualified from proceeding in the matter. 


Following a bench trial, defendant was convicted of second- degree child endangerment for distributing child pornography, N.J.S.A. 2C:24-4b(5)(a), and fourth-degree child endangerment by possessing child pornography, N.J.S.A. 2C:24-4b(5)(b). In affirming defendant's conviction, we hold that the trial court did not err in allowing a detective, who was not presented as an expert witness, to testify as a fact witness regarding his forensic examination of defendant's computer and defendant's use of peer-to-peer file sharing programs. In any event, any error in the admission of the challenged testimony was harmless as the detective possessed sufficient education, training, and experience to qualify as an expert in the field of computer forensics, and defendant was not surprised or prejudiced by the detective's testimony.
We further hold that, in applying aggravating factor one, N.J.S.A. 2C:44-1(a)(1), the trial court engaged in impermissible double-counting. We also conclude that, under the specific facts presented, defendant's convictions for fourth-degree

possession of child pornography and second-degree distribution of child pornography merge. Accordingly, we remand for the court to resentence defendant without consideration of aggravating factor one, and for merger of the two offenses. 

State v. Rodney J. Miles a/k/a Jamal D. Allen (A-72-15;

State v. Rodney J. Miles a/k/a Jamal D. Allen
          (A-72-15; 077035)
          New Jersey now joins the majority of jurisdictions in
          returning to the Blockburger same-elements test as the
          sole test for determining what constitutes the “same
          offense” for purposes of double jeopardy.  In the
          interest of justice, the Court applied both the same-
          elements test and the now-replaced same-evidence test in
          this case; going forward, for offenses committed after
          the issuance of this opinion, the same-elements test
          will serve as the singular framework for determining
          whether two charges are the same offense for purposes of
          double-jeopardy analysis.

State v. Habeeb Robinson (A-40-16;

State v. Habeeb Robinson (A-40-16; 078900)
          Both the trial court and the Appellate Division directed
          the State to disclose the statements of two
          eyewitnesses, photos used in the identification process,
          any incident report of the crime prepared by the police,
          and a surveillance video.  Rule 3:4-2(c)(1)(B) required
          disclosure of the reports and the photos but not the
          video.  The Court also clarifies and reframes the Rule
          to help ensure that it strikes the proper balance
          between two important concerns:  a defendant’s liberty
          interest and the State’s ability to seek to detain high-
          risk defendants before trial.

J.B./L.A./B.M./W.M./R.L. v. New Jersey State Parole Board (A-81/82

J.B./L.A./B.M./W.M./R.L. v. New Jersey State Parole
          Board (A-81/82/83-15; 077235)
           The Court affirms but modifies the Appellate Division’s
           opinion.  The Court upholds the Parole Board’s use of
           polygraph testing with the same limitations as the
           Appellate Division, but adds that the Parole Board’s
           regulations must be further supplemented to buttress the parolees’ Fifth Amendment right against self-

State v. Amir Randolph (A-70-15

State v. Amir Randolph (A-70-15; 076506)
          Defendant had automatic standing to challenge the search
          of the apartment because he was charged with possessory
          drug offenses and because the State failed to show that
          the apartment was abandoned or that defendant was a
          trespasser.  Failing to issue the “mere presence” charge
          was harmless error.

State v. Brian Tier (A-73-15;

 State v. Brian Tier (A-73-15; 077328)
          A plain reading of Rule 3:13-3(b)(2)(C) requires
          production of witness statements only if those
          statements have already been reduced to writing.
          Nothing in the rules precludes a trial court from
          ordering a defendant to designate witnesses as either
          character or fact witnesses, however.  The Court
          encourages practitioners to participate in cooperative
          discovery in order to ease the burden on all parties

State v. Dion E. Robinson (A-40-15; 076267)

State v. Dion E. Robinson (A-40-15; 076267)
          Although the circumstances gave rise to a reasonable
          suspicion that there was a weapon in the vehicle, the
          five officers’ swift and coordinated action eliminated
          the risk that any of the four occupants would gain immediate access to the weapon.  Accordingly, the
          protective sweep exception to the warrant requirement
          does not govern this case.  The community-caretaking
          exception to the warrant requirement is irrelevant.
          However, the inevitable discovery exception to the
          exclusionary rule may be pertinent to this case.