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Monday, June 19, 2017


We examine defendants' attack on the State's exercised privilege, refraining from disclosing information regarding details related to a global positioning system (GPS) tracking
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device used to prove their involvement in two burglaries. We rejected defendants' constitutional attacks and upheld the privilege granted by N.J.R.E. 516 and N.J.S.A. 2A:84A-28, defining the guidelines reviewed when weighing disclosure in light of the asserted privilege. These include: (1) whether defendant demonstrates a particularized need for disclosure related to advance a stated defense; (2) whether the opportunity to cross-examine the officer, asserting non-disclosure based on privilege, satisfies a defendant's need to challenge the credibility of the testifying witness; (3) whether law enforcement provided required corroborating evidence extrinsic to the GPS, to protect a defendant's rights of confrontation and fair trial; and (4) whether a defendant has the opportunity to provide expert testimony to attack the evidence without disclosure of the requested information. 


In this juvenile delinquency prosecution, the Family Part sua sponte transferred venue to another vicinage without notice to the juvenile defendant or the State. When the State objected, the judge held a hearing and stated the transfer was occasioned by receipt of a confidential report filed by an judiciary employee pursuant to Judiciary Employee Policy #5-15, "Reporting Involvement in Litigation," (effective June 1, 2016) (the Policy). In a subsequently filed brief statement of reasons, without identifying the employee or his or her relationship to the litigation, the judge concluded that given the employee's access to the Family Automated Case Tracking System (FACTS), location in the courthouse and interaction with the public, the Policy required the transfer of venue.
The court granted the juvenile's motion for leave to appeal, which the State supported, and reversed. Our Court Rules presume venue is laid in the county of the juvenile's domicile, a presumption further supported by provisions of the Code of Juvenile Justice. Additionally, the Crime Victim's Bill of Rights require the court to consider the inconvenience to the victim occasioned by the transfer of venue.
While the Family Part Presiding Judge may order the transfer of venue for good cause over the objections of the juvenile and the State, the court must provide notice of its intention and an opportunity to object beforehand. Additionally, the court's power must be exercised in service to the goals of the Policy, i.e., "to maintain [the Judiciary's] high degree of integrity and to avoid any actual, potential or appearance of partiality or conflict of interest in the adjudication or handling of all cases," and the court must consider whether a less drastic measure, such as "insulating the [court employee] from the matter," would accomplish these goals


The grand jury indicted defendant in a single count charging her with aggravated assault by throwing a bodily fluid, N.J.S.A. 2C:12-13, which provides,
A person who throws a bodily fluid at a . . . law enforcement officer while in the performance of his duties or otherwise purposely subjects such employee to contact with a bodily fluid commits an aggravated assault. If the victim suffers bodily injury, this shall be a crime of the third degree. Otherwise, this shall be a crime of the fourth degree.
The State alleged defendant spat at another inmate, and it landed on a corrections officer.
Defendant moved to dismiss the indictment, arguing the prosecutor failed to charge the grand jury regarding the statute's requisite mental state and failed to present clearly exculpatory evidence that negated her guilt. State v. Hogan, 144 N.J. 216, 237 (1996). This evidence included statements of inmates and the disciplinary report of the investigative corrections officer, which confirmed that defendant intended to spit at a fellow inmate, not the officer.
The judge denied the motion to dismiss, concluding the evidence did not meet the standard enunciated in Hogan, but he did not resolve what mental state was required under the statute or
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whether the prosecutor's instructions were appropriate. Defendant thereafter pled guilty.
The court concluded the State must prove that defendant acted purposely, and that the doctrine of transferred intent, N.J.S.A. 2C:2-3(d), cannot elevate the act of spitting, even if an offense under the Criminal Code, into an aggravated assault, unless the officer was the intended target. See, e.g., State ex rel S.B., 333 N.J. Super. 236, 244-45 (App. Div. 2000). Defendant's motion to dismiss should have been granted because the prosecutor failed to inform the grand jurors of the requisite culpable mental state. 

Wednesday, June 14, 2017

NJ adopted same-elements test as the sole test for determining what constitutes the “same offense” for purposes of double jeopardy. More difficult for double jeopardy State v. Rodney J. Miles

NJ adopted same-elements test as the sole test for determining what constitutes the “same offense” for purposes of double jeopardy. More difficult for double jeopardy State v. Rodney J. Miles (A-72-15) (077035)
Argued January 4, 2017 -- Decided May 16, 2017
Timpone, J., writing for a majority of the Court.
In this appeal, the Court clarifies the methodology to be used in analyzing whether two offenses are the “same offense” for double jeopardy purposes. Since the 1980s, New Jersey courts have applied both the same-evidence test and the same-elements test articulated in Blockburger v. United States, 284 U.S. 299 (1932), in double jeopardy determinations. A finding that offenses met either test resulted in double jeopardy protection for the defendant.
A grand jury returned an indictment-charging defendant with the offenses in the warrant complaint. Defendant then appeared pro se in municipal court to resolve the disorderly-persons offense. At some point before that video proceeding, the original municipal charge was amended to a different disorderly-persons offense—loitering to possess marijuana. Defendant asked the municipal court judge, “why they got me going to Superior Court for this, Your Honor?” The judge then responded that defendant was “not going to Superior Court for this,” but rather for an unrelated child support issue. Defendant then pled guilty to loitering to possess marijuana.
Thereafter, defendant moved to dismiss the Superior Court indictment on double-jeopardy grounds, arguing that prosecution on the possession charges was barred because he had already pled guilty to an offense that arose from the same conduct. The Superior Court denied defendant’s motion to dismiss, reasoning that prosecution on the indicted charges was not barred because it required proof of an additional element—proximity to a school. Defendant pled guilty to possession of CDS with intent to distribute within 1000 feet of a school (the school-zone charge), but preserved his right to appeal the denial of the motion to dismiss.
On appeal, the Appellate Division remanded for a finding on the circumstances surrounding the amendment of the disorderly-persons offense. The panel noted that a plea to the original municipal charge, instead of the amended one, could have led to a different result after applying the double-jeopardy analysis.

On remand, the Superior Court found no direct evidence as to the circumstances surrounding the amendment, and the prosecutor represented that his office was not informed of defendant’s municipal court proceedings. Despite defendant’s expressed confusion during the municipal court plea hearing, the Superior Court concluded that the school-zone prosecution was not precluded by notions of fundamental fairness.

Defendant appealed again, arguing that double jeopardy barred prosecution on the school-zone charge. The Appellate Division agreed, finding that, although the second prosecution was not barred under the same-elements test, it was barred under the same-evidence test. 443 N.J. Super. 212, 220, 225-27 (App. Div. 2015).

The Court granted the State’s petition for certification. 225 N.J. 339 (2016).

HELD: 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.
1. Here, the municipal court had jurisdiction to resolve defendant’s disorderly-persons charge pursuant to N.J.S.A. 2B:12-17, and failure to join does not automatically bar subsequent prosecution. For judicial efficiency and fairness to defendants, the Court urges careful coordination between the municipal courts and county prosecutors.  

2. The Court has consistently interpreted the State Constitution’s double-jeopardy protection as coextensive with the guarantee of the federal Constitution. A prime concern when reviewing a double-jeopardy claim is whether the second prosecution is for the same offense involved in the first.  

3. The United States Supreme Court first announced its test for determining whether a second prosecution is for the same offense in Blockburgersupra, 284 U.S. at 304: If each statute at issue requires proof of an element that the other does not, they do not constitute the same offense and a second prosecution may proceed. This has come to be known as the same-elements test.  

4. The Court read the language in Illinois v. Vitale, 447 U.S. 410, 421 (1980), as creating an alternative to Blockburger’s same-elements test—the same-evidence test. The United States Supreme Court reached the same conclusion in Grady v. Corbin, 495 U.S.508, 510 (1990), but revised its position in United States v. Dixon, 509 U.S. 688, 704, 708-09 (1993), in which it deemed the same-evidence test unworkable and reinstated the Blockburger same-elements test as the sole measure of whether two offenses constitute the same offense.  

5. Since Dixon, the majority of states have similarly ruled that the Blockburger same-elements test sets forth the proper test for determining whether two charges are the same offense. Until this case, the Court has not had occasion to reevaluate double-jeopardy jurisprudence in light of Dixon’s return to the same-elements test. As a result, appellate panels have split over whether the same-evidence test still applies in New Jersey.  

6. The Court now adopts the same-elements test as the sole double-jeopardy analysis, thereby realigning New Jersey law with federal law. The same-elements test is effortlessly applied at early stages of prosecution; it is capable of producing uniform, predictable results; and it aids defendants by reducing multiple court appearances. Rule 3:15-1(b) bars subsequent prosecutions for indictable offenses, and failure by the prosecution to properly join indictable offenses bars a subsequent prosecution.  State v. Williams, 172 N.J. 361, 368 (2002). The Court recognizes a narrow circumstance where it is possible that neither the same-elements test nor the rule in Williams would prevent a second prosecution; if those unlikely events unfolded, the second prosecution might well be barred on joinder or fundamental fairness grounds. As a further safeguard, the Court invites the Supreme Court Committee on Criminal Practice to review the joinder rule and consider adding non-indictable offenses to it.  

7. Because the decision establishes a new rule of law, the Court applies the new singular same-elements standard prospectively to offenses committed after the date of this opinion. In fairness to defendant, the Court conducts double-jeopardy analysis using both the same-elements test and the now-removed same-evidence test. Application of the Blockburger same-elements test would lead to the conclusion that loitering to possess marijuana is not the same offense as possession within a school zone. Each offense contains at least one element not required to prove the other. Under the same-evidence test, however, successive prosecution for the school-zone offense is prohibited because it is based on the same evidence that supported the plea and conviction on the loitering offense.
8. 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 double-jeopardy analysis. (p. 23)
The judgment of the Appellate Division is AFFIRMED. Defendant’s conviction and sentence on the school-zone offense are vacated.

JUSTICE ALBIN, DISSENTING, expresses the view that majority’s new rule cannot be squared with the principles of fairness that previously animated New Jersey’s double-jeopardy jurisprudence. According to Justice Albin, the majority’s reversion to the same-elements test will allow the State to pursue repeated prosecutions for the same offense despite an earlier conviction or acquittal.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which JUSTICE LaVECCHIA joins.

Defendant has automatic standing to challenge the search of a residential apartment State v. Amir Randolph

Defendant has automatic standing to challenge the search of a residential apartment State v. Amir Randolph (A-70-15) (076506)
Argued January 3, 2017 -- Decided May 3, 2017
Albin, J., writing for a unanimous Court.
In this appeal, the Court considers whether a person charged with a possessory drug offense has automatic standing to challenge a search or seizure.
Defendant Amir Randolph was charged with various drug offenses and moved to suppress evidence. Officers testified at the suppression hearing that, in September 2011, they conducted surveillance of a three-story apartment building. During the surveillance, Markees King stood in the second-floor apartment, and later exited the building, where he was approached by Edward Wright. Wright threw bills on the building’s porch, and King handed him a white object and retrieved the money. A second individual came up to King and handed him money and, in return, received a small white object. Detective Goodman believed that he had observed two drug transactions. Officers stopped and arrested Wright and, shortly thereafter, King was arrested as he exited the building.
Sergeant Trowbridge then attempted to enter building. The tenant of the first-floor apartment opened the door, admitting Sergeant Trowbridge into the vestibule. Once inside, Sergeant Trowbridge heard what sounded like someone running from the second floor up to the third floor. He also found a handgun in the vestibule. Sergeant Trowbridge then proceeded alone to the second floor. The door to the second-floor apartment, where King had been sighted, was ajar. From the hallway, Sergeant Trowbridge could see a couch and debris. He described the apartment as appearing to be vacant or abandoned and entered to search for “any additional actors there.” As he walked through the apartment, Sergeant Trowbridge observed several items including a television, video gaming system, two couches, boots, sneakers, clothes, a backpack, and a soda bottle, among other things. He also discovered baggies of marijuana, some currency, a box, a cigarette box, and a letter from an insurance company addressed to Amir Randolph (defendant) at a different address. Inside the boxes he found suspected heroin and marijuana. In all, the police recovered thirty-five baggies of marijuana and forty glassine envelopes of heroin.
At the suppression hearing, the prosecutor argued that the warrantless search of the second-floor apartment was valid based on the exigent-circumstances and protective-sweep exceptions to the warrant requirement. Instead of addressing that argument, the trial court upheld the search because defendant did not provide any evidence that he had a reasonable expectation of privacy in the vacant second-floor apartment or in the evidence found there.
At trial, the State’s presentation largely mirrored the testimony at the suppression hearing. Defense counsel requested an instruction on “mere presence” and “flight.” The trial judge agreed to charge on flight but explained that a charge on “mere presence” was not necessary. The jury asked questions, generally concerning the relationship between defendant, King, and the tenant, and defendant’s location when arrested. The trial judge simply reminded the jurors to use their “own good common sense, consider the evidence . . . and give it a reasonable and fair construction in light of your knowledge of how people behave.” The jury returned guilty verdicts on all counts. 
The Appellate Division reversed, concluding that the trial court erred in upholding the search based on the flawed finding that the second-floor apartment was vacant or abandoned. 441 N.J. Super. 533, 552-53 (App. Div. 2015). The panel remanded to determine whether the search was justified based on the protective-sweep or exigent-circumstances doctrine. The panel also reversed defendant’s conviction based on the failure to give a “mere presence” charge. According to the panel, the jury should have been instructed that, without more, defendant’s “mere presence” at the place where contraband was seized is insufficient to establish a finding of constructive possession. Finally, the panel raised concerns about the propriety of the flight charge without resolving the issue.
The Court granted the State’s petition for certification. 224 N.J. 529 (2016).
HELD: 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.

1. This appeal concerns defendant’s standing to challenge the search of the apartment. The New Jersey Constitution’s prohibition against unreasonable searches and seizures affords greater protection than the federal Constitution. In New Jersey, the State bears the burden of showing that defendant has no proprietary, possessory, or participatory interest in either the place searched or the property seized. Although the Court does not engage in a reasonable expectation of privacy analysis when a defendant has automatic standing to challenge a search, it does so in determining whether a defendant has a protectible right of privacy in a novel class of objects or category of places. Here, the Court is applying traditional principles of automatic standing to a place that historically has enjoyed a heightened expectation of privacy—the home. No unique circumstances call for the Court to engage in an additional reasonable expectation of privacy analysis as a supplement to its standing rule.  
2. The automatic standing rule, however, is subject to reasonable exceptions, and, in this appeal, the Court recognizes three exceptions in cases concerning real property: An accused will not have standing to challenge a search of abandoned property, property on which he was trespassing, or property from which he was lawfully evicted. The State has the burden of establishing that one of those exceptions applies to strip a defendant of automatic standing to challenge a search.  
3. In the present case, defendant had automatic standing to challenge the search of the second-floor apartment because he was charged with possessory drug offenses, and because the State failed to establish that Sergeant Trowbridge had an objectively reasonable basis to believe that the apartment was abandoned or that defendant was a trespasser. Regardless of the disarray in the apartment and the fact that it was not fully furnished, there were clear signs that someone occupied it
4. Importantly, at the suppression hearing, the prosecutor contended that the police conducted a lawful search pursuant to the exigent-circumstances and protective-sweep exceptions to the warrant requirement. The trial court never addressed those substantive grounds. The trial court, moreover, did not apply the well-established principles governing standing. Rather, the court turned to the reasonable expectation of privacy test, typically used in federal courts, and concluded—without any evidence—that the apartment was vacant. The Court, therefore, concludes that the trial court erred in its analysis and that a new suppression hearing must be conducted.  
5. The Court next considers whether the trial court erred in not instructing the jury on “mere presence” and, if so, whether the failure to give the charge denied defendant a fair trial. Defendant requested that the trial court read to the jury the Model Charge that instructs that a defendant’s “mere presence” at the scene, standing alone, is insufficient to prove guilt. The court denied that request. The trial court was clearly mistaken in its belief that the “mere presence” charge is given only in conspiracy cases. No constraint barred the trial court from giving the “mere presence” charge, and the better course would have been to give the charge to disabuse the jury of any possible notion that a conviction could be based solely on defendant’s presence in the building. However, unlike the appellate panel, the Court concludes that the failure to give the “mere presence” charge did not deprive defendant of a fair trial. The charge, as a whole, sufficiently informed the jury—without using the words “mere presence”—that defendant’s presence in the building, standing alone, would be insufficient to establish guilt. The Court, therefore, reverse the judgment of the Appellate Division granting defendant a new trial.  
6. Finally, the Court agrees with the Appellate Division that, if there is a retrial, the trial court “must carefully consider whether it is appropriate to charge flight, and, if so, must tailor the charge to the facts of the case.” 441 N.J. Super. at 563-64. In doing so, the court must determine whether the probative value of evidence of flight is “substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury,” N.J.R.E. 403(a), and whether a carefully crafted limiting instruction could ameliorate any potential prejudice.  

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the matter is REMANDED to the trial court for proceedings consistent with this opinion.


Defense not required to produce witness statement if not in writing State v. Brian Tier

State v. Brian Tier (A-73-15) (077328)

Argued January 30, 2017 -- Decided May 2, 2017

Timpone, J., writing for a unanimous Court.

In this appeal, the Court considers a question of first impression: What are a defendant’s post-indictment reciprocal discovery obligations to the State regarding a defense witness’s oral statements?
At a status conference, the State took issue with the witness list defendant produced because it listed the names of three men but did not provide identifiers, addresses, or synopses of their anticipated testimony—which the State alleged was in violation of Rule 3:13-3(b)(2)(C). In response, defendant agreed to produce identifiers and addresses but argued against providing synopses. Defendant asserted that the Rule requires that synopses be produced only if they have already been reduced to writing. Defense counsel affirmed that no witness statement summaries had been prepared.
The trial court ordered the defense to produce witness synopses and to create them if they had not been previously drafted. The court specifically ordered defense counsel to provide the State with the reason why the witnesses are on the list. The Appellate Division summarily reversed the trial court’s order, reasoning that a criminal defendant’s disclosures are carefully limited by the strictures of Rule 3:13-3(b)(2).
The trial court granted a motion to stay defendant’s trial pending the Court’s ruling on the motion. The Court granted the State’s motion for leave to appeal. 226 N.J. 205 (2016).
HELD: 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 involved.
1. Rule 3:13-3(b)(2)(C) reads, in pertinent part: “A defendant shall provide the State with all relevant material, including, but not limited to . . . the names, addresses, and birthdates of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements.” This Rule has not seen much review.
2. In State v. DiTolvo, 273 N.J. Super. 111 (Law Div. 1994), the State moved to bar a witness’s testimony after the defendant refused to provide a written summary of the proposed testimony. The court reasoned that the criminal justice system had a strong interest in “broad and extensive discovery.” Finding no competing interest in favor of defendant, and failing to discuss a criminal defendant’s special constitutional status, the court ordered the defendant to produce a summary of the witness’s proffered testimony or the court would bar the testimony.
3. State v. Williams, 80 N.J. 472 (1979), dealt with a collateral issue: whether summaries already in existence were required to be disclosed if the defendant had no intention of using them at trial. Because the request related to inculpatory evidence, the defendant had no duty to produce those documents. The Court recognized that “[evidential materials obtained in the exercise of [defense counsel’s] professional responsibility are so interwoven with the professional judgments relating to a client’s case, strategy and tactics that they may be said to share the characteristics of an attorney’s ‘work product,’” and that “[blanket discovery of the fruits of this kind of legal creativity and preparation may impact directly upon the freedom and initiative which a lawyer must have in order to fully represent his client.”  Id. at 479.
4. In addition to the confidentiality concerns raised by disclosure of work product, one of the underlying principles on which our criminal justice system is based is that a defendant “has a fundamental right to remain silent.”  Williams v. Florida, 399 U.S. 78, 112, 90 S. Ct. 1893, 1912, 26 L. Ed. 2d 446, 483 (1970) (Black, J., concurring in part and dissenting in part). This defendant agreed to reciprocal discovery, implicating the Rule and necessitating its review.  See R. 3:13-3(b)(1).  
5. Rule 3:13-3(b)(2)(C) plainly requires a defendant to produce “the names, addresses, and birthdates of those persons known to defendant who may be called as witnesses at trial.” Written statements, however, need only be produced if they exist. This result is unquestionably mandated by the language “if any,” which modifies “written statements.” The language following “if any” does not alter that result; it merely indicates that memoranda either reporting or summarizing a witness’s oral statements constitute discoverable written statements for purposes of Rule 3:13-3(b)(2)(C).
6. The trial court’s order was based upon a mistaken understanding of the applicable law, requiring reversal. However, the Court stops short of finding that the entire order was an abuse of discretion. Nothing in the court rules prevents the trial court from obligating defendant to identify a witness as either a character or fact witness. To the contrary, requiring a defendant to identify the category of witness not only alleviates some of the State’s concern regarding the burden of investigating a never-ending list of potential witnesses, but falls in line with the Court’s policy encouraging cooperation in the discovery process.
The judgment of the Appellate Division is AFFIRMED as MODIFIED. The matter is REMANDED to the trial court for entry of a discovery order consistent with this opinion.