Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Sunday, July 30, 2017

Denise Brown v. State of New Jersey (A-71-15

 Denise Brown v. State of New Jersey (A-71-15; 076656) 
In light of the context in which these circumstances arose—i.e., the lack of clarity in the law governing the lawful means by which law enforcement may secure a home pending issuance of a warrant and, significantly, that 

law’s intersection with the law governing the exigent circumstances exception to the warrant requirement—defendant did not violate a “clearly established” right when he entered Brown’s home to secure it, and qualified immunity applies. 

State v. S.B.

State v. S.B. (A-95-15; 077519) 
A plain-language reading of N.J.S.A. 2C:7-22 does not exempt a youth ministry associated with a church or other religious organization from the definition of “youth serving organization.” 

Saturday, July 29, 2017

Dash-cam footage is public in most cases North Jersey Media Group, Inc. v. Township of Lyndhurst (A-35-15)

Dash-cam footage is public in most cases
North Jersey Media Group, Inc. v. Township of Lyndhurst (A-35-15) (076184) Argued November 9, 2016 -- Decided July 11, 2017
RABNER, C.J., writing for the Court.
This appeal explores the scope of the Open Public Records Act (OPRA)’s exemptions for criminal investigatory records and records of investigations in progress, as well as the common law right of access.
On September 16, 2014, a North Arlington resident called 9-1-1 to report an attempt to break into a car. The police tried to stop the suspect’s car, but the driver—later identified as Kashad Ashford—eluded them and led police on a high-speed chase. At one point, Ashford tried to ram a patrol car head-on. Ashford ultimately lost control of his vehicle and crashed it into a guardrail at an overpass. According to the Attorney General’s press release, Ashford tried to get free of the barrier by accelerating, which caused the car to “jerk[] in a rear and forward motion.” An unidentified officer said that he thought the SUV might strike and possibly kill him and another officer. Both of those officers—as well as others—fired at Ashford, who was pronounced dead hours later.
Within days of the shooting, a reporter from The Record and another from the South Bergenite filed requests for records under OPRA and the common law right of access. The records custodians gave varied responses. None of them produced any materials before plaintiff North Jersey Media Group, Inc. (NJMG) filed a complaint and order to show cause. At the time, NJMG owned The Record and the South Bergenite. The two-count complaint alleged violations of OPRA and the common law right of access. NJMG sought release of the requested records, or their review in camera, along with fees and costs.
On January 12, 2015, the Honorable Peter E. Doyne, A.J.S.C., found that defendants had improperly withheld the requested records. In a detailed written opinion, he concluded that neither OPRA’s criminal investigatory records exception nor its ongoing investigation exception applied. The court directed defendants to release unredacted copies of records within three days in response to NJMG’s OPRA requests.
The Appellate Division reversed the order of disclosure and remanded for reconsideration. 441 N.J. Super. 70, 118-19 (App. Div. 2015). The panel concluded that, aside from the 9-1-1 recording, motor vehicle accident reports, and portions of Computer Aided Dispatch reports and other logs that do not relate to the criminal investigations, the requested documents fell within the criminal investigatory records exception. The Appellate Division remanded to the trial court to reconsider NJMG’s request under N.J.S.A. 47:1A-3(a) and the common law.
On remand, the Honorable Bonnie J. Mizdol, A.J.S.C., ruled that defendants were not required to release the names of the officers or disclose two remaining Use of Force Reports (UFRs), three dash-cam videos, and three police reports. The court relied heavily on the need to maintain the integrity of the ongoing investigation.
The Court granted defendants’ motion for leave to appeal, 223 N.J. 553 (2015), and relaxed the Court Rules to consider the judgment entered on remand.
HELD: NJMG was entitled to disclosure of unredacted Use of Force Reports, under OPRA, and dash-cam recordings of the incident, under the common law. Investigative reports, witness statements, and similarly detailed records were not subject to disclosure at the outset of the investigation, when they were requested.
1. Under OPRA, N.J.S.A. 47:1A-1 to -13, “government records” are subject to disclosure unless a public agency can demonstrate that an exemption applies. This appeal involves two specific exemptions. A record need only satisfy one exception to be exempt from disclosure.   
2. To qualify for OPRA’s criminal investigatory records exception—and be exempt from disclosure—a record (1) must not be “required by law to be made,” and (2) must “pertain[] to a criminal investigation.” N.J.S.A. 47:1A-1.1. The Attorney General’s Use of Force Policy requires that “[in all instances when physical, mechanical, or deadly force is used, each officer who has employed such force shall complete” a “Use of Force Report.” The Court agrees that the Policy has “the force of law for police entities.” O’Shea v. Township of West Milford, 410 N.J. Super. 371, 382 (App. Div. 2009). And because Use of Force Reports are “required by law to be made,” they cannot be exempt from disclosure under OPRA’s criminal investigatory records exemption.  
3. No one has pointed to an Attorney General directive relating to the use of dash-cams. NJMG points to general retention schedules to implement the Destruction of Public Records Law and contends they satisfy the “required by law” standard. If that were the case, the Right to Know Law’s narrow definition of public records would have been anything but narrow. And because many records that pertain to criminal investigations must be retained, the criminal investigatory records exception would have little meaning. The Court is unable to conclude that the Legislature intended those results. To be exempt from disclosure, a record must also “pertain[] to any criminal investigation.” N.J.S.A. 47:1A-1.1. Here, the actions of the police all pertained to an investigation into actual or potential violations of criminal law. The recordings also pertained to the Shooting Response Team investigation into Ashford’s fatal shooting. The records fall within the criminal investigatory records exception.   
4. N.J.S.A. 47:1A-3(b) requires the release of “information as to the identity of the investigating and arresting personnel.” The certification of Paul Morris, Chief of Detectives of the Division of Criminal Justice, focuses on why defendants need not identify by name the officers who discharged their weapons. The carefully detailed reasons apply to nearly all cases in which an officer uses deadly force. Although section 3(b) does not require the State to demonstrate an actual threat against an officer, generic reasons alone cannot satisfy the statutory test. OPRA requires the State to show that disclosure of the identity of an officer “will jeopardize the safety of any person . . . or any investigation in progress” or “would be harmful to a bona fide law enforcement purpose or the public safety.” Ibid. OPRA adds that “[whenever a law enforcement official determines that it is necessary to withhold information, the official shall issue a brief statement explaining the decision.” Ibid. Here, although defendants offered a brief explanation, their reasons did not satisfy those standards.  
5. To avail itself of the ongoing investigation exception, a public agency must show that (1) the requested records “pertain to an investigation in progress by any public agency,” (2) disclosure will “be inimical to the public interest,” and (3) the records were not available to the public before the investigation began. N.J.S.A. 47:1A-3(a). Investigative reports prepared after a police shooting ordinarily contain factual details and narrative descriptions of the event. As a result, the danger to an ongoing investigation would typically weigh against disclosure of reports while the investigation is underway, particularly in its early stages. The release of UFRs presents far less of a risk of taint to an ongoing investigation because UFRs contain relatively limited information. Also, defendants in this case raised only general safety concerns. Under the circumstances, the UFRs should have been released without redactions.  
6. NJMG also sought access to records in this case under the common law, which requires a greater showing than OPRA: (1) the person seeking access must establish an interest in the subject matter of the material; and (2) the citizen’s right to access must be balanced against the State’s interest in preventing disclosure. The Attorney General’s interest in the integrity of investigations is strongest when it comes to the disclosure of investigative reports, witness statements, and other comparably detailed documents. In those areas, the State’s interest outweighs NJMG’s. The balance can tip in favor of disclosure, however, for materials that do not contain narrative summaries and are less revealing. Footage of an incident captured by a police dashboard camera, for example, can inform the public’s strong interest in a police shooting that killed a civilian. It can do so without placing potential witnesses and informants at risk and without undermining the integrity of an investigation. Based on its in camera review of the certifications the State submitted in this case, the Court notes that the State advanced only generic safety concerns. Under the circumstances of this case, the public’s substantial interest in disclosure of dash-cam recordings warranted the release of those materials under the common law right of access.   
The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part. JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and


Sunday, July 23, 2017

State v. S.B. (A-95-15;

State v. S.B. (A-95-15; 077519)
          A plain-language reading of N.J.S.A. 2C:7-22 does not
          exempt a youth ministry associated with a church or
          other religious organization from the definition of
          “youth serving organization.”

Wednesday, July 19, 2017


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The State alleged that, acting in Florida, defendant paid an accomplice to launch spam attacks on a website that was integral to a New Jersey internet-based business, for the purpose of harming the business owner. The Appellate Division reversed an order dismissing the indictment charging defendant with the offenses of disrupting or impairing computer services, N.J.S.A. 2C:20-25(b), and impersonating another for the purpose of obtaining a benefit or depriving another of a benefit, N.J.S.A. 2C:21-17(a)(1). As to both offenses, the harmful result to the victim is an "element" of the offense, within the meaning of the territorial jurisdiction statute, N.J.S.A. 2C:1-3(a)(1) and -3(g). Because the prosecutor produced some evidence that the New Jersey victims suffered harm in this State which was an element of each computer crime statute, New Jersey has territorial jurisdiction to prosecute defendant for those offenses. Therefore, the trial court erred in dismissing those counts of the indictment for lack of territorial jurisdiction. 


This appeal presented the question: when does the five-year statute of limitations begin to run against a prosecution for intentional failure to pay New Jersey taxes under N.J.S.A. 54:52-9(a). The offense has two elements: (1) the failure "to pay or turn over when due any tax, fee, penalty or interest or any part thereof required to be paid"; and (2) doing so with "the intent to evade, avoid or otherwise not make timely payment or deposit of any tax, fee, penalty or interest or any part thereof."
Defendant acknowledged he owed almost $200,000 in 2007 gross income taxes, according to his late tax return, which he filed on July 8, 2008. He was indicted for intentional failure to pay on July 10, 2013. The State argued the crime is a
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continuing one under N.J.S.A. 2C:1-6(c), and the limitations period does not begin running until a defendant's last affirmative act of evasion or avoidance in this case, when defendant last falsely promised to pay in 2010. The court disagreed, holding the time period begins once a defendant fails to pay taxes when due and owing, and does so with the requisite intent. This can occur on the day taxes are first due, or at a later date only if the necessary state of mind first emerges then. The indictment alleged these two elements were satisfied when defendant filed his return. Therefore, the court reversed the conviction because the indictment was returned more than five years after the crime was committed. 


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
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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


In this appeal, we addressed whether the Monmouth County Prosecutor's Office must produce a completed Preliminary Law Enforcement Incident Report (PLEIR) when seeking pretrial detention of a defendant under the Bail Reform Act (Act), N.J.S.A. 2A:162-15 to -26. Consonant with our Supreme Court's decision in State v. Robinson, ___ N.J. ___ (2017), and for the reasons set forth herein, we conclude the production of a PLEIR is not mandatory under the Act, Rule 3:4-2(c)(1), or the Office of the Attorney General, Directive Establishing Interim Policies, Practices, and Procedures to Implement Criminal Justice Reform Pursuant to P.L. 2014, c. 31 (Oct. 11, 2016). 

State v. Mark Dunbar (A-94-15

State v. Mark Dunbar (A-94-15; 077839)
          The Court adopts the federal standard barring
          unnecessary delays for the purpose of canine sniffs.
          Officers do not need reasonable suspicion of a drug
          offense provided that the canine sniff does not
          prolong the stop beyond the time required to complete
          the stop’s mission.

State v. Thomas L. Scott (A-86-15

State v. Thomas L. Scott (A-86-15; 077434)
          The evidence proffered by the State goes far afield of a
          proper bias inquiry.  The evidence is inadmissible under
          the dictates of New Jersey Rules of Evidence 403 and
          608, which govern admissibility of prior bad acts and
          character evidence for truthfulness.  That error
          prevented defendant from fully developing his defense at
          trial and deprived the jury of key witness testimony.
          Exclusion of testimony central to a defendant’s claim or
          defense, if otherwise admissible, cannot be held to be
          harmless error.

State v. Anthony K. Cole (A-66-15

State v. Anthony K. Cole (A-66-15; 076255)
          The trial court properly exercised its broad
          discretion when it applied N.J.R.E. 401 and 403 to the
          contested evidence and admitted the video recordings
in their entirety. The lack of a limiting instruction
          and the prosecutor’s comment on the evidence did not
          constitute plain error.

State v. Michael Ross II (A-79-15

State v. Michael Ross II (A-79-15; 077458)
          Although some of the trial court’s inquiries were
          unnecessary and over-reaching, the trial judge’s conduct
          did not rise to the level of plain error.  Upon review
          of the record, the Court is satisfied that the trial
          court’s questions did not deprive defendant of a fair

State v. S.S. (A-84-15

State v. S.S. (A-84-15; 077486)
          After a careful reappraisal of Diaz-Bridges, the Court
          now holds that the non-deferential standard articulated
          in that case is at odds with traditional principles
          limiting appellate review.  An appellate court
          ordinarily should defer to a trial court’s factual
          findings, even when those findings are based solely on
          its review of a video recording.  Deference, however, is
          not required when the trial court’s factual findings are
          clearly mistaken.  Here, sufficient credible evidence in
          the record supports the factual finding that defendant
          invoked his right to silence during the interrogation.

Monday, July 03, 2017

Terry Stop and frisk explained STATE OF NEW JERSEY,

Terry Stop and frisk explained 


April 6, 2017
Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 14-03-0144.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Rastelli, Assistant Prosecutor, of counsel and on the brief).


The opinion of the court was delivered by
Defendant entered a guilty plea to one count of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), after his motion to suppress evidence seized from his person was denied. We reverse the denial of defendant's motion and his conviction. 
Two witnesses testified at the suppression hearing, Chief John Pelura and Sergeant Melvin Vanaman of the Salem Police Department. We summarize their testimony. 
At approximately 6:00 p.m. on December 12, 2013, Pelura was driving home from work in an unmarked vehicle. He explained why his attention was drawn to the car defendant was driving:
[I]t was driving along the shoulder of the road, normally where cars would park. There were no cars parked there, however. He was traveling next to the curb line, as if he was going to park, and he shut his lights out about mid-block, but then continued driving southbound past two or three house[s], and then finally came to a stop in front of 1 Johnson Street.

Pelura estimated that the car traveled along the shoulder for about 150 to 200 feet and that its lights were turned off as it passed two houses. Pelura had been "involved with the investigation of multiple search warrants for narcotics in that neighborhood" as well as "several homicide investigations in that neighborhood."
Pelura looked in his rear view mirror to see if the driver alighted from the vehicle. The area across the street from the vehicle was frequently under surveillance and Pelura knew "people will park in the Avenues, and then, either walk across the street to make narcotics transactions; or, people will come from across the street into the Avenues and make deliveries." The fact that neither defendant nor the passenger left the vehicle piqued his interest. 
Pelura drove around the block. He testified that after he circled the block a second time, 
[defendant] was getting out of the driver's seat; and then, when he saw me, he got back into the car, and then, shut the door, but not so much to close it completely, just kind of so it was cracked open.

Pelura then drove around the block and parked in an alleyway where he could observe defendant's movements. He saw defendant walk purposefully to an address where "numerous narcotic search warrants" had been executed. Defendant emerged approximately two to three minutes later and walked back toward his car.
Pelura identified two facts as the basis for his suspicions. First, defendant went into a house with a history of narcotics search warrants and drug activity. Second, defendant parked "essentially, in the middle of nowhere and then walk[ed] across the street" rather than in a location more convenient to his destination.
Pelura approached defendant as he walked back to his vehicle, identified himself as a police officer and told him he was conducting a narcotics investigation. There was, however, no active investigation being conducted that day. He described defendant's reaction as startled and nervous. Pelura conducted a Terry1 patdown of defendant. He stated he did not manipulate or go into any of defendant's pockets; he "was simply looking for a weapon." No weapons were recovered. 
Pelura then questioned defendant about where he was coming from. Defendant first stated he came from the liquor store but, after Pelura challenged him on that, defendant said he "went across the street to see [his] boy." Defendant was unable to provide a name for the person he went to see.
Pelura testified that Vanaman arrived at this time. Pelura then spoke to the passenger, observed an open container of alcohol, and turned around to see Vanaman handcuffing defendant. Pelura "secured" the passenger for "loitering, with intent to commit a CDS offense."
Vanaman testified he responded to assist Pelura "who reported that he was out with a suspicious male." When he arrived at the scene, defendant was "acting very nervously" and "seemed to be giving conflicting statements" regarding his reasons for being in the area. Pelura asked Vanaman to remain with defendant while he spoke to the passenger.
Vanaman asked defendant for identification, which he produced. Vanaman ran a warrants check on defendant, which was negative for active warrants. Vanaman testified that defendant's actions caused him to conduct a patdown of defendant:
[Defendant] continued to appear to become increasingly nervous. He was – he would turn his left side of his body away from me, and he kept touching his pockets. He would like run his hands from his sweatshirt to his pants, to checking his front and back pockets. Just like patting them, as if he was looking for something.

Then he – when he touched the front of his sweatshirt, I noticed that his facial expression changed, and he reached for his pockets, tried to put his hands in his pockets; and I asked him to not do that. I was standing there, he – when I went and reached for my lapel mike, to answer the dispatch, he again, kind of turned his body away from me, and, again, tried to reach his hand into that pocket, his left front pocket of his sweatshirt.

Vanaman testified that he grabbed defendant and "stopped his . . . hands from going into his pockets." Vanaman asked defendant, "What do you have in that pocket?" Defendant did not answer; "he was just standing there; he didn't . . . try and twist or resist at that moment." Vanaman then conducted a patdown for weapons. He ran his hands along defendant's pockets on the outside of his clothing. In the left hand sweatshirt pocket that had been the focus of defendant's attention, Vanaman "felt a hard, almost golf ball size object, and . . . heard a slight crinkle of what sounds like some sort of plastic." He "believed the object to be some sort of CDS [controlled dangerous substance] material." Vanaman reached into defendant's pocket, retrieved the object he suspected to be heroin and placed defendant under arrest.
Vanaman testified he conducted the patdown because he "was nervous and suspicious of [defendant's] actions, that he may have some sort of weapon or something on him that could be dangerous." However, he also stated that defendant did not act aggressively toward him in any way.
In a written opinion, the trial judge found the facts supported a particularized and reasonable suspicion that justified Pelura's action in making a Terry stop. The judge also found Pelura's Terry frisk of defendant was unwarranted because the facts failed to support a justifiable suspicion that defendant was armed and dangerous and posed an immediate threat to his safety. The trial judge found this unlawful intrusion "of no import" because Pelura's frisk of defendant did not result in the recovery of any contraband.
The trial judge found Vanaman's frisk of defendant was supported by particularized and reasonable observations:
He did not know that Chief Pelura had already frisked [defendant]. [Defendant] was becoming increasingly nervous. He kept turning his left side away. He repeatedly tried to put his hands in his sweatshirt pockets after being instructed to stop. Sergeant Vanaman knew that Chief Pelura was conducting a narcotics investigation. These facts support his reasonable belief that [defendant] was armed and posed an immediate threat to his and Chief Pelura's safety.

The trial judge further found that the heroin retrieved from defendant's pocket was lawfully seized pursuant to the plain feel doctrine.
Sergeant Vanaman's belief that what he felt in [defendant's] left sweatshirt pocket is also supported by the credible evidence. He is an experienced [sic] with many narcotics related arrests. He felt a hard, "almost golf ball sized object" and heard a "crinkle like some plastic." His testimony that it was immediately apparent to him that this was a controlled dangerous substance is credible. At that point, [defendant's] shoulders dropped and he went limp. That together with his observations created probable cause to believe the object was a controlled dangerous substance under the Gates[2] totality of the circumstances test.

Accordingly, defendant's motion was denied. In his appeal, defendant presents the following argument:

When a motion judge has denied a suppression motion, our review of the motion judge's factual findings "is highly deferential."State v. Gonzales227 N.J. 77, 101 (2016). Because the motion judge has the "opportunity to hear and see the witnesses and to have the 'feel' of the case," ibid. (quoting State v. Johnson42 N.J. 146, 161 (1964)), the motion judge's factual findings will be upheld so long as sufficient credible evidence in the record supports those findings, State v. Elders192 N.J. 224, 243-44 (2007). We review issues of law de novo.  State v. Watts223 N.J. 503, 516 (2015).
An encounter that begins with a valid arrest or investigative stop may lead to a seizure that will be suppressed because the officer has unreasonably expanded the permissible scope of an otherwise valid search.  See, e.g.State v. Privott203 N.J. 16, 28-32 (2010) (concluding the officer unreasonably expanded the permissible scope of the search when he lifted defendant's shirt after conducting a proper investigative stop and protective patdown). A Terry stop, sometimes called an investigatory stop or investigative detention, is "more intrusive than a field inquiry," State v. Rodriguez172 N.J. 117, 126 (2002), and "is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing," id. at 127 (quoting State v. Davis104 N.J. 490, 504 (1986). Such particularized suspicion requires "'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." Id. at 126-27 (quoting Terrysupra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906).
We "consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter."  State v. Tucker136 N.J. 158, 166 (1994) (quoting Florida v. Bostick501 U.S. 429, 439, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389, 402 (1991)); see also State v. Sirianni347 N.J. Super. 382, 388-89 (App. Div.) (stating "[a]n inquiry may be converted into an investigative detention if, given the totality of the circumstances, a reasonable person were to believe he was not free to leave"), certif. denied172 N.J. 178 (2002). Circumstances that merit consideration include: "the seriousness of the criminal activity under investigation, the degree of police intrusion, and the extent of the citizen's consent, if any, to that intrusion."  Siriannisupra, 347 N.J. Super. at 389 (citation omitted). 
The conduct of the police officer has significant weight in determining whether a field inquiry has become an investigative stop. In Rodriguezsupra, 172 N.J. at 129, the officer asked whether the defendant and his companion "had anything on them that they shouldn't have." The Court noted "the tenor of the police questions" contributed to its finding that the encounter had progressed to an investigative detention.  Ibid. The Court cited other cases in which a field inquiry was converted into an investigative detention through the nature of the questions asked, e.g.State v. Contreras326 N.J. Super. 528, 534, 540 (App. Div. 1999) (defendant was asked "if he had anything of that type [drugs or weapons] on his person"); State ex rel. J.G.320 N.J. Super. 21, 30-31 (App. Div. 1999) (defendant was asked whether there was "anything on him that [he] shouldn't have"). The "critical inquiry" is whether the policeman has "conducted himself in a manner consistent with what would be viewed as a nonoffensive contact if it occurred between two ordinary citizens." Davissupra, 104 N.J. at 497 n. 6. (quoting W.R. LaFave, 3 Search and Seizure, § 9.2 at 53 (1978)).
"[A]uthoritative questions that presuppose criminal activity or are otherwise indicative of criminal suspicion, thus making the suspect aware he is the focus of a particularized investigation, may be considered as part of the totality of circumstances in determining whether a field inquiry has escalated into an investigatory stop."  Siriannisupra, 347 N.J. Super. at 389. On the other hand, if an officer puts his questions "in a conversational manner, if he did not make demands or issue orders, and if his questions were not overbearing or harassing in nature," his manner would not result in a seizure of the person.  Davissupra, 104 N.J. at 497 n.6 (citing W.R. LaFave, 3 Search and Seizure, § 9.2 at 53-54).
Pelura's interaction with defendant was, almost from its outset, an investigative stop. Upon first approaching defendant, Pelura announced he was conducting a narcotics investigation, although there was no active investigation at that time. Pelura questioned defendant about his movements and challenged defendant's response because it did not conform to his observations. The trial judge found this level of intrusion justified by facts that supported a reasonable suspicion that defendant was engaged in criminal activity but found the patdown that followed unjustified. 
In our view, the justification for an investigative detention was weak. We agree with the motion judge there was no evidence to support a reasonable belief that a protective Terry frisk was warranted, but we disagree with the trial judge's conclusion that, because Pelura's frisk of defendant did not result in the recovery of any contraband, the unlawful intrusion that followed was "of no import." We cannot agree that an unlawful intrusion has no consequence simply because it did not lead to the seizure of evidence. 
Here, the police intrusion did not end after the unproductive patdown. Although Pelura had obtained no further incriminating evidence as a result of questioning defendant and defendant manifested no suspicious behavior other than appearing nervous, the detention continued. Vanaman testified that when he arrived, Pelura instructed him to remain with defendant. If there had been any question about defendant's freedom to leave, that was certainly dispelled upon Vanaman's arrival and Pelura's instructions.
Vanaman questioned defendant further, asked for identification, which defendant produced, and conducted a warrant check, which revealed no active warrants. 
Both officers cited defendant's nervous behavior as giving them cause for concern. But both officers also testified that defendant did not act aggressively toward them in any way. Vanaman stated it was defendant's continued movements toward his pocket that elevated his concern to the point where he deemed a patdown for weapons necessary.
The motion judge found Vanaman had a reasonable belief defendant was armed and posed an immediate threat to the safety of the officers because: he did not know Pelura had already frisked defendant; defendant was becoming increasingly nervous, repeatedly trying to put his hand in his pocket; and he "knew" Pelura "was conducting a narcotics investigation."
We are constrained to note the finding that Vanaman "knew" a narcotics investigation was under way is contradicted by the record. Vanaman testified he responded to the scene because Pelura was with a suspicious male and that when he arrived, Pelura did not describe any investigation to him. The only testimony in this regard came from Pelura, who testified there was no active investigation at that time. There was also no evidence that defendant was known to engage in narcotics activity.
We note that, before conducting a patdown, Vanaman grabbed defendant's arm, preventing him from reaching the pocket in question and presumably thwarting the possibility defendant was reaching for a weapon. Still, we will accept the motion judge's finding that Vanaman believed defendant was armed and dangerous, giving deference to the judge's ability to assess his credibility.
The initial frisk described by Vanaman -- running his hands along defendant's pockets on the outside of his clothing --complied with the scope of a protective patdown authorized by Terry. No weapons were recovered and Vanaman did not suspect the "hard, almost golf ball size object" he felt in defendant's pocket was a weapon. The motion judge found his retrieval of the heroin from defendant's pocket was permissible under the "plain feel" exception to the warrant requirement. We disagree.
"A threshold requirement for the application of the plain feel exception is that the character of the contraband be 'immediately apparent.'"  State v. Evans, ___ N.J. Super. ___, ____ (App. Div. 2017) (slip op. at 18-19) (quoting Minnesota v. Dickerson508 U.S. 366, 375, 113 S. Ct. 2130, 2137, 124 L. Ed.2d 334, 345 (1993)). There is a critical difference between the existence of probable cause to believe an object is contraband, as the court found here, and evidence that the character of the detected object as contraband was "immediately apparent."  See id. at ___ (slip op. at 19). In Dickerson, the Supreme Court found the officer's manipulation of a suspected object removed the seizure from the application of the plain feel doctrine because the officer exceeded the permissible scope of a Terry stop when he manipulated the bulge after concluding it was not a weapon: 
[T]he officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to "the sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby." It therefore amounted to the sort of evidentiary search that Terryexpressly refused to authorize, and that we have condemned in subsequent cases.

[508 U.S. at 378, 113 S. Ct. at 2138-39, 124 L. Ed. 2d at 347-48 (alterations in original) (citations omitted).]

When Vanaman touched the hard golf ball-like object and heard the crinkle of plastic, he "believed the object to be some sort of CDS material" and had probable cause for that belief. However, it was only by removing the object in a warrantless search that the object could be identified as a controlled dangerous substance. Like the officer in Dickerson, he did so after it was clear defendant did not have a weapon in his pocket. Because the search exceeded the permissible scope of a Terry patdown, it also "amounted to the sort of evidentiary search" that was condemned as unauthorized by Terry.  Id. at 378, 113 S. Ct. at 2139, 24 L. Ed. 2d at 347. The warrantless seizure of the heroin from defendant's pocket cannot, therefore, be justified through an application of the plain feel doctrine.


1  Terry v. Ohio392 U.S. 188 S. Ct. 186820 L. Ed.2d 889 (1968).

2  Illinois v. Gates462 U.S. 213103 S. Ct. 231776 L. Ed.2d 528 (1983).

Sunday, July 02, 2017

State v. Anthony K. Cole (A-66-15)

 State v. Anthony K. Cole (A-66-15) (076255) 
  -- Decided June 27, 2017 
PATTERSON, J., writing for the Court. 
In this appeal, the Court reviews the trial court’s denial of defendant’s motion to bar the admission into evidence of three segments of video, recorded during breaks from questioning at police headquarters, in which defendant appeared alone in the interrogation room. 
On the evening of September 7, 2009, David Donatelli was in Spring Lake Park, preparing for South Plainfield’s annual Labor Day fireworks display. As he stood looking up to examine a light stanchion, Donatelli was slashed. The laceration on the side of his neck exposed his carotid artery and jugular vein. 
A police officer found two matching black-and-gray gloves. Blood identified by DNA analysis as Donatelli’s was found on the outside of the glove. State Police forensic scientists then swabbed the interior of both gloves and detected skin cells that matched defendant’s DNA profile in the database. Officers arrested defendant. 
Police officers interrogated defendant in two sequential conversations, both video-recorded. Advised that the officers had forensic evidence linking him to the crime, defendant maintained his innocence, provided an alibi, and asked to be released. When the officers were in the room, defendant was gregarious and engaged. When briefly left alone during three breaks from the questioning, however, defendant adopted a starkly different demeanor; he muttered to himself, mouthed obscenities toward the location where the officers had been sitting and the video camera, and placed his hand inside his pants. 
Defendant was tried before a jury over six days. On the second day of trial, defense counsel stated that the portions of the video recordings in which defendant appeared alone were unduly prejudicial under N.J.R.E. 403. The trial court ruled that the contested sections were relevant because they reflected on defendant’s demeanor and the accuracy of his statements. The court admitted the video recordings in their entirety. It invited defense counsel to submit a proposed jury instruction addressing the limited purpose for which the jury should consider the segments of the recordings in which defendant appeared alone. 
During the State’s case, the contested video recordings were played for the jury. The trial court reiterated its offer to give the jury a cautionary instruction. The record does not indicate that defense counsel proposed such an instruction. The prosecutor specifically addressed defendant’s conduct when he was alone and suggested that defendant’s “manipulation” of his presentation to police signaled his guilt. Defendant did not object. 
In its jury charge, the trial court instructed the jurors that they were the sole and exclusive judges of the evidence, including the credibility of witnesses, but did not specifically address the portions of the video recordings in which defendant sat alone in the interrogation room. The jury convicted defendant of attempted murder, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, and hindering apprehension. In a separate proceeding, the jury convicted defendant of the remaining offense, certain persons not to have a weapon. 
An Appellate Division panel reversed defendant’s conviction and remanded for a new trial. The panel deemed the contested segments too equivocal to be admitted as consciousness-of-guilt evidence, particularly without a limiting instruction. The Court granted the State’s petition for certification. 224 N.J. 527 (2016). 
HELD: The trial court properly exercised its broad discretion when it applied N.J.R.E. 401 and 403 to the contested evidence and admitted the video recordings in their entirety. The lack of a limiting instruction and the prosecutor’s comment on the evidence did not constitute plain error.

1. N.J.R.E. 401 defines “[r]elevant evidence” as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” Once a logical relevancy can be found to bridge the evidence offered and a consequential issue in the case, the evidence is admissible, unless exclusion is warranted under a specific evidence rule. N.J.R.E. 403 mandates the exclusion of evidence that is otherwise admissible “if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury.” To determine the admissibility of evidence under N.J.R.E. 401 and 403, the trial court conducts a fact-specific evaluation of the evidence in the setting of the individual case. On appellate review, considerable latitude is afforded to the court’s ruling, which is reversed only if it constitutes an abuse of discretion. (pp. 17-21) 
2. In this case, the conduct depicted in the video recordings was germane to the jury’s assessment of defendant’s credibility in his statement to police and therefore relevant to its determination of pivotal issues. The portions of the two video recordings in which defendant was alone in the interrogation room met N.J.R.E. 401’s standard of relevancy. The segments at issue were potentially prejudicial to defendant; that evidence, however, was not prejudicial to the point at which the risk of prejudice substantially outweighed the probative value of the evidence, as N.J.R.E. 403 requires for the evidence to be excluded. The trial court did not abuse its discretion when it admitted into evidence the video recordings, including the portions in which defendant was alone. (pp. 21-27) 
3. The Appellate Division panel reversed defendant’s conviction based not on a relevance analysis, but on its conclusion that the video segments were inadmissible as evidence of consciousness of guilt. The three video-recorded segments were not offered or admitted as consciousness-of-guilt evidence but on the ground that they were relevant to the jury’s evaluation of the credibility of defendant’s statement. Accordingly, the Court does not determine whether the evidence in question was admissible as consciousness-of-guilt evidence. (pp. 27-28) 
4. The Appellate Division noted that the trial court did not give a limiting instruction. The trial court twice offered to give a limiting instruction. Defense counsel did not submit a proposed instruction and the trial court did not sua sponte charge the jury regarding the video recordings. Given the brief duration of the video-recorded excerpts in a six-day trial, it is unclear whether a limiting instruction would have clarified the limited purpose of the videotaped segments or overemphasized the evidence. Moreover, the State presented overwhelming evidence of defendant’s guilt, including DNA evidence linking defendant to a glove on which the victim’s blood was found shortly after the crime, as well as testimony by defendant’s mother and friends that substantially undermined his account of his activities during the critical time period. The trial court’s decision not to charge the jury on this issue was not “clearly capable of producing an unjust result,” and was not plain error. R. 2:10-2. (pp. 28-31) 
5. The prosecutor’s reference to defendant’s demeanor as proof of his guilt was beyond the scope of fair comment. The prosecutor was free to discuss the video-recorded segments in which defendant was alone but should have constrained any such discussion to the question of credibility. The Court cautions prosecutors that when evidence is admitted for a limited purpose, comments in summation that exceed the bounds of that purpose must be avoided. However, the comment was not clearly capable of producing an unjust result, giving rise to plain error. (pp. 31-34) 
6. The Court addresses the issues raised in the concurrence, and stresses that its ruling is distinctly fact-sensitive and based on the standard of review. (pp. 34-38) 
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Appellate Division for proceedings consistent with this opinion. 
CHIEF JUSTICE RABNER, CONCURRING, is of the view that multiple reasonable inferences can be drawn from defendant’s behavior after the interview and that no authority directly supports the use of evidence of a witness’s demeanor after an interrogation has ended. According to Chief Justice Rabner, the video’s minimal relevance was substantially outweighed by the risk of undue prejudice and the danger that the recording would mislead the jury, and the evidence should have been excluded under N.J.R.E. 403. Chief Justice Rabner concurs in the judgment because he finds the error was harmless in light of other strong evidence of defendant’s guilt. 

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