Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
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Sunday, March 25, 2018


Defendant Amy Locane, who had been convicted of second-degree vehicular homicide, N.J.S.A. 2C:11-5(a), and third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2), was sentenced on our remand to precisely the same three-year term of imprisonment as on the first occasion. The panel remanded the matter a second time because the trial judge again erred in the application of the downgrade statute, N.J.S.A. 2C:44-1(f)(2). The judge found mitigating factors not supported by the record, and accorded too much weight to them. Further, the judge failed to find aggravating factors that were present, and thus accorded them insufficient weight. Not only did the mitigating factors fail to substantially outweigh the aggravating, but there were no compelling reasons requiring a downgrade. See ibid. 

The panel further found that double jeopardy barred the State from appealing the concurrent terms that were improperly imposed for the offenses. The panel nonetheless discussed State v. Carey, 168 N.J. 413, 428 (2001), concluding that it creates a rebuttable presumption favoring consecutive sentences when a drunken driver inflicts grave harm on more than one victim. Ultimately, a careful and close application of the Yarbough factors must be made in vehicular homicide cases, as in every other instance. State v. Yarbough, 100 N.J. 627, 643-44 (1985). 



An individual who has been discharged from probation, albeit with an imperfect record while on probation, and who has subsequently paid all outstanding fines, is not barred from applying for expungement. The trial court erred in holding that petitioner was barred for applying for expungement under N.J.S.A. 2C:52-2(a)(2), because she was discharged from probation "without improvement." 

State v. Donnell Jones (A-53-16; 078793)

 State v. Donnell Jones (A-53-16; 078793) 

The sentencing court did not abuse its discretion during defendant’s sentencing proceedings or infringe defendant’s allocution right in any way. 

Sunday, March 18, 2018


The court reverses the denial of defendants' motion to suppress drugs and guns found after a plain view sighting through the open door of an apartment. The police used a tool to force entry into the locked apartment building twice before approaching the fourth-floor apartment door. The State, conceding a lack of probable cause, argued that the forced entry into the building did not violate defendants' expectation of privacy because of the size of the apartment building. The court refused to "condone the police forcing entry into a locked residential apartment building while on an investigative hunt for suspected criminal activity." 


J.DO., A.S. AND J.Z. 
The court granted the State's motion for leave to appeal in these four appeals involving seven juveniles, all charged with crimes or disorderly persons offenses under Title 35 and 36 of the Criminal Code. N.J.S.A. 2A:4A-71(b) provides such complaints "shall be referred for court action, unless the prosecutor otherwise consents to diversion." When the complaints were screened by intake services, the prosecutor did not consent. 
In two of the appeals, the Family Part judge, without notice or hearing, diverted complaints charging the juveniles with criminal offenses, concluding that N.J.S.A. 2A:4A-73(a), vested the judge, not the prosecutor, with discretion to divert any juvenile complaint. The court reversed, noting that Rule 5:20-1(c) provides complaints charging juveniles with crimes "shall not be diverted unless the prosecutor consents thereto." 
In the other two appeals, the juveniles were charged with disorderly persons offenses under Title 35 and 36 of the Criminal Code. In one of the appeals, the judge diverted the case without any hearing. The court reversed. 

In the other appeal, the judge held a hearing, noted the prosecutor's objection and ordered diversion. The court affirmed, concluding that although the failure to include these offenses within the scope of Rule 5:20-1(c) may have been inadvertent, the plain language of the Rule did not limit the judge's discretion to divert the complaints over the State's objection. The court referred the opinion to the Committee on Practice in the Family Part for consideration. 



The court remanded for a new trial a criminal matter in which the jury was instructed only as to murder, N.J.S.A. 2C:11 3(a)(1). One of two co-defendants testified at trial that he unwittingly killed the victim while struggling to take a gun away from someone——not the victim——who was trying to shoot him. He was convicted of murder, and his co-defendant was also convicted of murder as his accomplice. The court concluded the jury should have also been given a molded self-defense instruction, N.J.S.A. 2C:3-4(a), and been instructed as to the lesser-includeds of aggravated manslaughter, N.J.S.A. 2C:11 4(a)(1), and manslaughter, N.J.S.A. 2C:11-4(b)(1). The failure to do so prejudiced defendants' rights to a fair trial. 

State v. Ornette M. Terry (A-23-16)

State v. Ornette M. Terry (A-23-16) (077942) Argued October 11, 2017 -- Decided March 14, 2018 -- Corrected March 16, 2018ALBIN, J., writing for the Court. The Court considers whether an officer acted reasonably, in accordance with New Jersey precedents permitting a limited registration search without a warrant and the dictates of the Fourth Amendment and Article I, Paragraph 7 of the State Constitution, when he searched defendant’s glove box. Union Township Police Officer Devlin observed defendant’s GMC truck run a stop sign and almost strike his patrol car. Officer Devlin activated the overheard lights and siren. Defendant did not pull to the side of the road. Instead, without signaling, he zigzagged back and forth from the right to the left lane in traffic. Officer Devlin relayed the truck’s license plate number to a dispatcher, who notified him that the vehicle was a Hertz rental, which had not been reported stolen. After a half mile, defendant turned into a gas station where he came to a stop. Officer Devlin parked his patrol car behind defendant’s truck while a back-up police officer in a marked unit pulled in front of the truck, effectively blocking it in. With the other officer beside him and their guns trained on defendant, Officer Devlin repeatedly ordered defendant to show his hands, but defendant made no response. Twenty to thirty seconds later, Officer Devlin opened the driver’s door and commanded that he step out of the vehicle. Defendant did so, leaned against the truck, put his hands in his pockets, and asked why the officers had pulled him over. Although Officer Devlin repeatedly instructed defendant to show his hands, he was slow to comply. The two officers quickly patted defendant down, assuring themselves he was not armed with a weapon. When Officer Devlin asked defendant for identification, defendant reached into his pocket and presented his license. Officer Devlin next requested that defendant produce the vehicle’s registration and insurance card. Defendant did not respond, “[h]e just stood there with a blank stare on his face.” The officer asked a second time, and defendant “shrugged his shoulders.” Defendant made no non-verbal gestures to indicate that the papers were on his person or in the truck. Finally, Officer Devlin asked defendant whether he owned the truck or had any paperwork for it. Again, defendant did not respond. Officer Devlin went to the passenger’s side of the truck, opened the door, and looked in the glove box—“[t]he most common place” where papers are stored. Although he found no documentation in the glove box, the light from his flashlight reflected against a white object on the passenger’s floorboard. That object was a handgun. The trial court denied defendant’s motion to suppress. The court found that Officer Devlin “was a reasonable and credible witness” and concluded that because defendant failed to produce the vehicle registration on demand, Officer Devlin had a right to search for the registration, rental agreement, and insurance in the area where such documents are usually kept. The court further determined that Officer Devlin’s observation of the handgun met the plain view exception to the warrant requirement. At the conclusion of a jury trial, defendant was found guilty of second-degree unlawful possession of a handgun and fourth-degree possession of hollow point bullets. A panel of the Appellate Division reversed, determining that the warrantless search of defendant’s truck violated both the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. The Court granted the State’s petition for certification. 228 N.J. 448 (2016). HELD: Sufficient credible evidence supported the trial court’s determination that defendant was given an adequate opportunity to present the vehicle’s registration before the search commenced. When a driver is unwilling or unable to present proof of a vehicle’s ownership, a police officer may conduct a limited search for the registration papers in the areas where they are likely kept in the vehicle. When a police officer can readily determine that the driver or passenger is the lawful possessor of the vehicle—despite an inability to produce the registration—a warrantless search for proof of ownership will not be justified. 2

1.One of the well-established exceptions to the warrant requirement is the automobile exception. A corollary is theauthority of a police officer to conduct a pinpointed search for proof of ownership when a motorist “is unable orunwilling to produce his registration or insurance information.” State v. Keaton, 222 N.J. 438, 442-43 (2015). TheState has a “compelling interest in maintaining highway safety by ensuring that only qualified drivers operate motorvehicles and that motor vehicles are in a safe condition.” State v. Donis, 157 N.J. 44, 51 (1998). That interestextends to ensuring that operators are not in possession of stolen vehicles. The operator of a motor vehicle must“exhibit the registration certificate, when requested to so to do by a police officer,” N.J.S.A. 39:3-29, and must“comply with any direction, by voice or hand” by the officer, N.J.S.A. 39:4-57. A “police officer is authorized toremove any unregistered vehicle from the public highway to a storage space or garage,” N.J.S.A. 39:3-4, or toimpound a car that he reasonably believes may be stolen, N.J.S.A. 39:5-47. Had Officer Devlin not been able tosearch the glove compartment, his other option would have been to impound the vehicle. An inventory search of animpounded vehicle is a constitutionally permissible practice. (pp. 14-21)
2.Since State v. Boykins, 50 N.J. 73, 82-83 (1967), New Jersey courts have repeatedly reaffirmed the vitality of thelimited registration exception to the warrant requirement. In Keaton, a unanimous Court affirmed and applied thelimited registration exception, holding that when an operator is “unable or unwilling” to produce his registration, anofficer may conduct a limited and focused search for the ownership credentials. 222 N.J. at 442-43. The Courtmade clear that a search for proof of ownership must be reasonable in scope and therefore “confined to the glovecompartment or other area where registration might normally be kept in a vehicle.” Id. at 449. The authority toconduct a warrantless registration search is premised on a driver’s lesser expectation of privacy in his vehicle and onthe need to ensure highway and public safety. The courts in a number of other jurisdictions have determined that, inappropriate circumstances, a limited warrantless search of a motor vehicle for proof of ownership does not violatethe Fourth Amendment, and the Court continues to stand with those jurisdictions. (pp. 21-31)
3.The rationale for a limited registration search exception is (1) the minimal invasion of the driver’s reasonableexpectation of privacy; (2) the furtherance of public safety in general and officer safety in particular; and (3) therecognition that, for constitutional purposes, a brief and restricted search is arguably less intrusive than impoundingthe vehicle and conducting an inventory search later. Accordingly, after a driver is given the opportunity to presentthe vehicle’s ownership credentials but is unwilling or unable to do so, a police officer may engage in a pinpointedsearch limited to those places, such as a glove box, where proof of ownership is ordinarily kept. If a driver orpassenger explains to an officer that he has lost or forgotten his registration, and the officer can readily determinethat either is the lawful possessor, then a warrantless search for proof of ownership is not justified. Moderntechnology may increasingly allow police officers to make such timely determinations. (pp. 31-34)
4.The trial court held that defendant was given a meaningful opportunity to present the truck’s rental papers, and hefailed to do so. There is sufficient credible evidence to support that conclusion. From the objectively reasonableviewpoint of the officers, defendant was unwilling or unable to produce proof of ownership. At that point, thetotality of defendant’s behavior raised a reasonable suspicion that the truck might be a stolen vehicle. Permitting adriver to maintain possession of a potentially stolen motor vehicle is a public safety risk. All in all, the officersacted reasonably, in accordance with New Jersey precedents permitting a limited registration search without awarrant and the dictates of the Fourth Amendment and Article I, Paragraph 7 of the State Constitution. (pp. 34-39)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate Division for consideration of the issues not reached by it on defendant’s direct appeal.
CHIEF JUSTICE RABNER, DISSENTING, observes that an examination of the history and scope of the driving credentials exception reveals that its foundation is far from strong. Chief Justice Rabner adds that the exception is potentially quite broad and permits law enforcement to search a vehicle without probable cause, when officer safety is not an issue, and when there is no legitimate need for credentials. Stressing the Court’s limiting principle—that a warrantless search for credentials cannot be justified when “the officer can readily determine that either” the driver or passenger “is the lawful possessor”—Chief Justice Rabner notes that, because officers on duty nearly always have access to electronic records, few warrantless searches for credentials could ever be justified.

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

State v. Lori A. Hummel (A-36-16)

 State v. Lori A. Hummel (A-36-16) (078476)
Argued October 24, 2017 -- Decided March 13, 2018
TIMPONE, J., writing for the Court.
The Court considers the legality of the police’s search and seizure of the contents of defendant Lori Hummel’s handbag while she was detained at the Gloucester County Prosecutor’s Office.
On December 5, 2010, Thomas Carbin was stabbed to death. On December 7, 2010, Investigator Gary Krohn advised defendant that he was going to bring her to the police station for two outstanding traffic bench warrants; he drove her to the Gloucester County Prosecutor’s Office. There, he introduced defendant to Detective Bryn Wilden and Sergeant James Ballenger. Detective Wilden then escorted defendant into an interrogation room.
Defendant placed her purse on the table in front of her. Around 1:56 pm., Detective Wilden and Sergeant Ballenger entered defendant’s interrogation room to begin questioning her. The detectives took seats at the table without removing defendant’s purse or frisking her. About a minute into questioning, defendant reached into and rummaged through her purse to retrieve her cell phone. She checked the time and advised the detectives that she had to pick up her daughter by 3:20 pm. The detectives did not comment on her time constraint. Detective Wilden then asked defendant to raise her right hand and swore her in. The detectives began asking defendant substantive questions without advising her of her rights under Miranda v. Arizona, 384 U.S. 436 (1966). In response to questions from the detectives about her cell phone, defendant began to look through her purse for a receipt showing her recent cell phone purchase. The detectives kept questioning defendant about her relationship with the victim.
The detectives left defendant alone in the room. She put her belongings back into her purse and stepped outside, asking if she could leave to pick up her daughter. The detectives did not permit her to leave. She then asked, “Am I arrested?” Detective Wilden responded that “technically” she had traffic warrants and that they still had questions for her. Defendant stated that she thought she wanted to get a lawyer. After briefly asking questions about defendant’s decision to retain a lawyer, the detectives ceased talking to defendant and left the room.
Soon after, Detective Wilden cuffed defendant’s right ankle to a bar on the floor and told defendant that she was being detained and that she had an outstanding warrant. Defendant asked several times whether she could make a phone call to her lawyer. Detective Wilden took defendant’s purse from the table, and defendant stated that she did not like that he had her pocketbook. Sergeant Ballenger responded that defendant was “in custody.” As Detective Wilden began walking out, defendant said, “Hopefully that $500 ain’t missing out of there.”
In response to defendant’s comment, the detectives began taking everything out of her purse. They asked if she would rather search the purse herself, but defendant declined. Detective Wilden found two electronic benefits transfer (EBT) cards issued through New Jersey’s “Families First” supplemental income program. He asked defendant if the cards were hers. She responded that everything in the pocketbook was hers. Detective Wilden read her the name of another individual on one of the cards. Defendant disavowed that she knew that individual or how the card wound up in her purse. Detective Wilden then put all the items back into the purse and left the room with it. The detectives left defendant shackled for over two hours.
 At one point she asked why she could not get a lawyer, and the detectives failed to allow her to call one. Around 5:48 p.m., the detectives unsecured defendant’s ankle and escorted her out of the room to be released. Police arrested defendant three days later.
Defendant moved to suppress her statements to police and the physical evidence obtained during her interrogation. The trial court granted defendant’s motion to suppress her statements to police but denied her motion to suppress physical evidence. Defendant appealed from the trial court’s denial of her motion to suppress physical evidence. The Appellate Division panel found that the Families First EBT card should have been suppressed because the detectives’ inventory search developed into a warrantless investigatory search. The panel ruled that defendant could apply within thirty days to withdraw her guilty plea and to have her conviction vacated and her case listed for trial. The Court denied defendant’s petition for certification, 229 N.J. 3 (2017), but granted the State’s cross-petition for certification, 229 N.J. 17 (2017).
HELD: The Court finds no valid inventory search and therefore affirms the Appellate Division’s determination that the evidence seized during the search should be suppressed.
1. One narrow exception to the Fourth Amendment warrant requirement is the inventory search. An inventory search is not an independent legal concept but rather an incidental administrative step following arrest and preceding incarceration. Police may search an arrestee without a warrant and inventory the property in the arrestee’s possession before he or she is jailed. Such searches “serve[] a three-fold purpose: protection of the inventoried property while in police custody, shielding the police and storage bailees from false property claims, and safeguarding the police from potential danger.” State v. Mangold, 82 N.J. 575, 581-82 (1980).

2. An inventory search must be reasonable under the circumstances to pass constitutional muster. In Mangold, the Court explained that the propriety of an inventory search involves a two-step inquiry: (1) whether the impoundment of the property is justified; and (2) whether the inventory procedure was legal. Id. at 583. For there to be a lawful inventory search, there must be a lawful impoundment. Courts need only analyze the reasonableness of the inventory search if the impoundment is justified. Several factors are relevant to the reasonableness inquiry. They include “the scope of the search, the procedure used, and the availability of less intrusive alternatives.” Id. at 584.
3. Under the first Mangold inquiry, the detectives’ impoundment of defendant’s purse was not justified. The detectives had not arrested defendant before seeking to impound her purse. Defendant kept her purse open and within her reach for the entire interrogation. She rummaged through her bag several times in front of the detectives. The detectives did not frisk defendant at any point during her detention. They sought to remove her bag from the interrogation room only after she asked for an attorney. Crucially, they asked defendant if she would rather examine the contents of her purse herself. It is clear that had valid safety concerns existed at the time they sought to impound her bag, the officers would not have given defendant the option to search her own purse.
4. Even if the initial impoundment was justified under the first Mangold inquiry, the search would fail under the balancing test required by the second. The detectives initiated the search to find the $500 defendant claimed her purse contained. The scope of the search should have been limited to that $500. The State concedes that the departmental policy for inventory searches is unknown. There is no way then to determine whether the detectives’ search was executed according to any purported policy or practice. Finally, the detectives had reasonable, less intrusive alternatives available to protect them against false theft claims that would have simultaneously respected defendant’s constitutionally protected privacy rights. The inventory search exception to the Fourth Amendment warrant requirement does not apply, and the detectives’ search was unconstitutional.   
5. The State concedes that the detectives did not conduct a “traditional” inventory search. The record reveals that nearly every aspect of the purported inventory search was not “traditional.” They did not formally arrest her that day, but rather let her leave and arrested her three days later. The Court remands to permit defendant to raise issues she has preserved before a PCR court, or withdraw her guilty plea and continue before the trial court.   
The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED for further proceedings consistent with this opinion.

Sunday, March 11, 2018

State v. Noah Mosley (A-24-16

 State v. Noah Mosley (A-24-16; 078369) 

Hearsay is generally admissible in a VOP hearing. When assessing the State’s ability to rely on hearsay to satisfy its proof obligation without contravening a defendant’s due process rights, a court fundamentally should consider the State’s reasons for relying on hearsay forms of evidence and the reliability of the evidence for its proposed purpose. In this matter, the State failed to provide any justification for relying on hearsay, and the hearsay evidence was not sufficiently reliable for its asserted purpose of substantiating the new criminal charges against defendant. 

Friday, March 09, 2018

Winter 2017 Municipal Court Law Review
Major cases affecting Municipal Court and criminal cases
By Kenneth Vercammen, Esq.
1. NJ Supreme Court makes “plain view” car searches easier
State v. Gonzales __ NJ __ (2016)
The Court now excises the inadvertence requirement from the
plain-view doctrine. Because it is setting forth a new rule of law, the
Court will apply the reformulated plain-view doctrine prospectively.
Nevertheless, the Court holds that the trial court’s finding of
inadvertence is supported by credible evidence in the record. The Court
therefore reverses the judgment of the Appellate Division and
reinstates the trial court’s denial of the motion to suppress. A-5-15
2. Protective search on house not permitted where no
evidence another person present. State v. Bryant __ NJ __
The officers here lacked reasonable and articulable suspicion that
another party was present; much less that another party posed a
danger to officer safety. The protective sweep was thus insufficient to
establish an exception to the warrant requirement, and any evidence
found as a result of that sweep—even if it was found in plain view—
must be excluded and suppressed as fruit of the poisonous tree. A-2-
3. Driver with prior school zone DWI sentenced as 2nd
Offender State v. Wheatley __ NJ Super. __ (App. Div. 2016)
Distinguishing State v. Reiner, 180 N.J. 307 (2004), the court
held that a defendant who was previously convicted of driving while
intoxicated (DWI) in a school zone in violation of N.J.S.A. 39:4-50(g) is
subject to the increased penalties applicable to second offenders under
N.J.S.A. 39:4-50(a)(2) when he was subsequently convicted of a
conventional DWI in violation of N.J.S.A. 39:4-50(a). A-5026-14T1
4. Town outside surveillance camera not subject to OPRA but
maybe subject to common law.
Gilleran v. Township of Bloomfield __ NJ __ (2016)
Compelling release on demand of security surveillance video would
be contrary to the legislative intent motivating OPRA’s exemptions
based on security concerns. The Township’s explanation for denying
the request for the footage was adequate. Requests for video from
surveillance cameras protecting public facilities are better analyzed
under the common law right of access. The Court therefore reverses
the judgment of the Appellate Division and remands the matter for
further proceedings based on the unresolved common law claim. A-15-
5 Twitter statement admissible in criminal trials. State v
Hannah __ NJ Super. __ (App. Div. 2016)
Defendant was charged with hitting the victim in the face with her shoe.
At trial, the State introduced a screenshot taken by the victim of a
"tweet" allegedly posted by defendant after the incident saying "shoe
to ya face." Defendant argues that this Twitter posting was improperly
admitted into evidence, citing a Maryland case requiring that such
social media postings must be subjected to a greater level of
authentication. The Appellate Division rejects that contention, holding
that New Jersey's current standards for authentication are adequate to
evaluate social media postings. Under those standards, it was not an
abuse of discretion to admit the tweet based on the presence of
defendant's photo and Twitter handle, its content containing
information specific to the parties involved, and its nature as a reply to
the victim's communications. A-5741-14T3
6. No obstruction for failure to provide DL for parking ticket.
State v Powers __ NJ Super. __ (App. Div. 2016)
Defendant was convicted after a trial in municipal court, and again
on appeal to the Law Division, of obstruction based on both physical
interference and an "independently unlawful act." N.J.S.A. 2C: 29-1(a).
The court remanded for findings that might illuminate the judge's
conclusory determination that defendant physically interfered with a
state trooper in the issuance of a parking ticket at a highway rest stop.
The court, however, also held that defendant, in these
circumstances, could not be convicted of obstruction by means of "an
independently unlawful act" that was based solely on N.J.S.A. 39:4-57,
which provides that "[drivers of vehicles . . . shall at all times comply
with any direction . . . of a member of a police department" when the
officer is in the course of "enforcing a provision of this chapter."
Defendant was outside his vehicle and, therefore not a driver, and the
trooper was not enforcing Chapter 39 because he was only issuing a
parking ticket. A-3764-14T2
7. Official misconduct does not apply to EMT State v.
Morrison __ NJ __ (2016)
A municipality’s contracting for emergency medical services
through a private, non-profit first-aid squad does not convert the EMTs
into public servants because they are not exercising authority of a
uniquely governmental nature or performing a function exclusive to
government in any traditional sense, regardless of whether there are
one or more non-profit providers of publicly funded emergency medical
services for the municipality. Morrison did not commit the offense of
official misconduct because he was not performing a governmental
function and therefore was not a public servant. The Court affirms the
judgment of the Appellate Division and remands for proceedings on the
four remaining counts. A-36
8. Victim Statement to police not admissible at trial State in
Interest of A.R. __ NJ Super. __ (App. Div. 2016)
Appellant, a fourteen-year-old juvenile, was found guilty of
sexually touching a seven-year old boy on a bus returning from summer
camp. The alleged victim was developmentally comparable to a threeyear-
old. After getting off the bus, he blurted out to his mother's
cousin that appellant had touched him during the ride. Eighteen days
later, a detective interviewed the younger child on videotape at the
county prosecutor's office. The child repeated the accusation,
demonstrating it with anatomical dolls. No eyewitnesses on the bus,
including the driver and aide, corroborated the incident.
At a pretrial Rule 104 hearing, the court ruled that both of the
child's hearsay statements were sufficiently trustworthy to admit
under the "tender years" hearsay exception, N.J.R.E. 803(c)(27). The
 court then queried the younger child at the start of the trial about his
ability to discern and tell the truth. The court twice concluded from the
child's troublesome responses that he was not competent to testify
under the criteria of N.J.R.E. 601. Nevertheless, the court accepted the
child's hearsay statements and trial testimony repeating the
accusations, based on the so-called "incompetency proviso" in Rule
803(c)(27), which treats children of tender years as available
witnesses even if they are not competent to testify.
The court concluded that the younger child's statements during
his recorded interview with the detective were "testimonial" under the
Confrontation Clause, as construed by the United States Supreme
Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny.
The objective "primary purpose" of the interview was to elicit and
preserve statements from an identified child victim of sexual abuse
about wrongful acts for potential use as evidence in a future
prosecution. The child's testimonial statements to the detective here
are distinguishable from the non-testimonial statements that a young
child victim made to her teachers at school in Ohio v. Clark, 135 S. Ct.
173 (2015).
Although appellant's counsel attempted to cross-examine the
child, that exercise was inadequate to safeguard his confrontation
rights, given the child's undisputed incompetency. Hence, the court
reversed the admission of the detective's interview and the child's incourt
testimony because it violated appellant's constitutional rights.
However, as appellant concedes, the child's spontaneous assertion
after getting off the bus was not testimonial under the Confrontation
Clause and was properly admitted. The court remanded for the trial
court to reconsider the proofs in light of the determinations. A-2238-
9. Dismissal of DV can’t be used as bargaining chip in
divorce case J.S. v. D.S __ NJ Super. __ (App. Div. 2016)
Defendant appealed a domestic violence final restraining order
(FRO), claiming it was void upon entry – despite the parties' settlement
of matrimonial issues that included defendant's consent to the FRO –
because the judge did not find an act of domestic violence had
occurred. A few days before the scheduled date for oral argument in
this court, the parties stipulated to a dismissal of the appeal that would
allow for the perpetuation of the FRO.
Notwithstanding their agreement, the court exercised its discretion,
pursuant to Rule 2:8-2, and determined that the interests of justice
required a disposition of the appeal's merits; the court vacated the FRO
due to the lack of a finding of domestic violence, reinstated the TRO,
and remanded for a final hearing. A-5742-14T2
10. Mandatory Electronic Filing in Criminal cases in Ecourts.
The Supreme Court informed that bar that the Court has
determined that electronic filing in Criminal matters using Ecourts
Criminal is mandatory with certain limited exceptions.
All attorneys and law firms seeking to file documents in criminal
matters must do so electronically through Ecourts, except in the
following limited instances: (1) cases not tracked in PROMIS/Gavel, e.g.,
expungements, gun permit filings, municipal appeals; (2) filings that are
not part of the court's official case file, e.g., prosecutor discovery
pursuant to Rule 3:13-3(b)(1); (3) filings where a fee is specifically
required, e.g., municipal appeals, expungements; and (4) Megan's Law
11. New Criminal Rules effective Jan 1, 2017
No more mandatory cash bail for indictable criminal charges.
Everyone with a Warrant gets to spend at least one night in jail !!!
Attorneys need to set up an Ecourts login and file Superior Court
motions online, or refer cases out.
On Jan. 1, 2017, NJ shifted from a system that relies principally on
setting monetary bail as a condition of release to a risk-based system
that is more objective, and thus fairer to defendants because it is
unrelated to their ability to pay monetary bail. The statute also sets
deadlines for the timely filing of an indictment and the disposition of
criminal charges for incarcerated defendants.

Tuesday, March 06, 2018


In this case of first impression, this court interprets and applies the Overdose Prevention Act (the "OPA" or "the Act"), N.J.S.A. 2C:35-30 to -31; N.J.S.A. 24:6J-1 to -6, a statute enacted in 2013. The OPA is intended to save lives by "encouraging witnesses and victims of drug overdoses to seek medical assistance." N.J.S.A. 24:6J-2. 
Among other things, the statute confers immunity upon two categories of qualifying persons from being "arrested, charged, prosecuted, or convicted" for certain enumerated possessory drug offenses. The immunity covers persons: (1) who act in good faith to request medical assistance for individuals perceived to be experiencing a "drug overdose," as defined by N.J.S.A. 24:6J-3; or (2) who experience a drug overdose and have been the subject of such a good faith request for medical assistance by others, or who have sought such assistance themselves. See N.J.S.A. 2C:35-30 (granting immunity for the persons making such requests for assistance); N.J.S.A. 2C:35-31 (granting immunity for the persons who are the subject of such eligible requests). 
The panel rejects the State's argument that the immunity conferred by the Act contains an implied exception for persons who are only "intoxicated." Instead, courts applying the statute must address the specified terms of the definition of a "drug overdose" set forth in N.J.S.A. 24:6J-3. That definition requires that the person be in "an acute condition including, but not limited to, physical illness, coma, mania, hysteria, or death resulting from the consumption or use of a controlled dangerous substance [CDS] or another substance with which a [CDS] was combined and that a layperson would reasonably believe to require medical assistance." (emphasis added). 
The panel further concludes that, as the words of the statute specify, the protection of the OPA's immunity extends to all phases of the criminal process, including arrest, charge, prosecution, and conviction. 

Because the sparse factual record in this case is unclear in several respects and inadequate to resolve the disputed immunity issues, the panel remands this case for further proceedings to develop the facts in greater depth. 

Monday, March 05, 2018

After PTI, expungement granted here even though restitution owed IN THE MATTER OF THE EXPUNGEMENT OF E.M.1

After PTI, expungement granted here even though restitution owed

IN THE MATTER OF THE EXPUNGEMENT OF E.M.1 ______________________________
Submitted January 22, 2018 Decided February 8, 2018
          Before Judges Sabatino and Ostrer.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. MX-470- 15.
Essex-Newark Legal Services, attorneys for appellant E.M. (Felipe Chavana, Executive Director, of counsel and on the brief; Elizabeth A. Duelly, on the brief).
Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent State of New Jersey (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
After E.M. fulfilled all but one condition of
pretrial intervention, the trial court entered a June 2013 order dismissing the indictment charging him with second-degree conspiracy to
1 We grant petitioner's renewed request, which is unopposed, to shield his name and to impound the record.
commit theft; second-degree theft; and second-degree financial facilitation of criminal activity. The one remaining unfulfilled condition was payment of restitution of over $58,000. Defendant had dutifully paid $102 a month, as ordered, but a balance of over $55,000 remained. The court ordered entry of a civil judgment in favor of the Probation Division for that amount. Over two years later, still dutifully reducing his amount due, E.M. filed a verified petition to expunge the record of his arrest, indictment and related proceedings, pursuant to N.J.S.A. 2C:52-6.
The prosecutor initially opposed the petition, contending that (1) the arrest was "the subject matter of civil litigation," N.J.S.A. 2C:52-14(d); and (2) "the need for the availability of the records outweigh[ed] the desirability" of expungement, N.J.S.A. 2C:52-14(b). The trial court thereafter dismissed defendant's petition without prejudice "because petitioner owes a balance."
E.M. appeals, arguing that his outstanding financial obligation is not an impediment to expungement. Abandoning its position before the trial court, the State now agrees. Noting that the trial court did not rely on its "need for the availability of records" argument, the State also does not renew that position before us.
We agree with the parties and write briefly because the issue is capable of repetition. The question is a purely legal one that we review de novo. In re Expungement Petition of J.S., 223 N.J. 54, 72 (2015). We need look no further than the plain, unambiguous language of the statute. In re Kollman, 210 N.J. 557, 568 (2012). A person is generally entitled "to expungement of all records and information relating to [an] arrest or charge" after dismissal, acquittal, or discharge without a conviction or finding of guilt. N.J.S.A. 2C:52-6(a). However, "[a]ny person who has had charges dismissed against him [or her] pursuant to a program of supervisory treatment pursuant to N.J.S.[A.] 2C:53-12 [pretrial intervention] . . . shall be barred from the relief provided . . . until six months after the entry of the order of dismissal." N.J.S.A. 2C:52- 6(c)(1).
E.M. satisfied those prerequisites. Therefore, he was presumptively entitled to expungement, and the burden shifted to the State to establish a basis for denying relief under N.J.S.A. 2C:52-14. See Kollman, 210 N.J. at 569-70 (discussing shifting burdens).
As the State now concedes, an outstanding judgment, consisting of a restitutionary balance due, does not render E.M.'s "arrest . . . the subject matter of civil litigation." N.J.S.A. 2C:52-14(d). That provision refers to pending civil litigation.
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State v. J.R.S., 398 N.J. Super. 1, 5 (App. Div. 2008). Also, the "civil litigation" exception was apparently designed to assure that the litigant is not deprived of the information necessary to prosecute or defend the litigation. Id. at 5-6. There is no pending litigation here, nor does the Probation Division need to use E.M.'s arrest records to enforce the civil judgment, which shall survive the expungement.
Therefore, we reverse the trial court's order and remand for entry of an order of expungement.
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