STATE OF NEW JERSEY VS. RICKY BROWN (17-06-1207, (A-3619-17T1)

STATE OF NEW JERSEY VS. RICKY BROWN (17-06-1207,   (A-3619-17T1)

The panel addresses the strip search statute, N.J.S.A. 2A:161A-1 to -10, which affords certain protections to persons who are arrested or detained for non-indictable offenses, and whether the Attorney General Guidelines for strip searches extend those protections to persons arrested or detained for crimes.

The panel concludes that neither the legislative history nor the plain terms of the statute authorized the Attorney General to promulgate Guidelines to extend the statute's protections to persons detained or arrested for crimes. The panel further concludes that the strip search was justified here by probable cause and reasonable exigent circumstances, thereby satisfying the Fourth Amendment of the United States Constitution, and Article I, Paragraph 7 of the New Jersey Constitution.

The panel affirms the trial court's order denying defendant's motion to suppress five bricks of heroin seized from defendant's groin area pursuant to a strip search following defendant's arrest for indictable drug offenses.

Confession suppressed where police lied to assault suspect STATE v. CARLOS M. HERNANDEZ-ESCOBAR,

Confession suppressed where police lied to assault suspect

STATE 
v.

CARLOS M. HERNANDEZ-ESCOBAR,

     Defendant-Respondent.
____________________________________

                   Argued September 26, 2018 – Decided October 15, 2018

                   Before Judges Koblitz and Ostrer.

                  unpublished

                 SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3662-17T1
PER CURIAM
       On leave granted, the State appeals the trial court's March 12, 2018, order

suppressing a portion of defendant's custodial statement. In the suppressed

excerpt, defendant admitted that he touched the pre-teen sister of his wife

inappropriately. He was later charged with second-degree sexual assault of a

child under thirteen,  N.J.S.A. 2C:14-2(b), and third-degree endangering the

welfare of a child through sexual conduct,  N.J.S.A. 2C:24-4(a)(1).1 The court

found that police misled defendant to believe "that he would not be deported,

that the state would treat him leniently by allowing him to leave after the

interview, and that he would receive help in the United States through

counseling rather than incarceration."     As a result, defendant's will was

overborne, and his subsequent confession was involuntary and therefore

inadmissible.

      On appeal, the State contends the trial court erred, because the

interrogating police officers made no false statements or promises that induced

defendant to confess. We disagree and affirm, substantially for the reasons set

forth in a cogent and comprehensive written opinion by Judge Angela F.

Borkowski.



1
  Neither the complaint warrant nor indictment is included in the record on
appeal. We rely on the State's recitation of the charges in its brief.
                                                                         A-3662-17T1
                                       2
       One of the three interrogating officers, Hunterdon County Prosecutor's

Office Lieutenant Kristen Larsen, testified at the N.J.R.E. 104(c) hearing. Also

introduced into evidence was a video recording of the interrogation, which was

conducted in English and Spanish, and a transcript including a translation of the

Spanish. Defendant speaks English, but Spanish is his first language, and he at

times used the interpretation of a Spanish-speaking officer, Detective Vanessa

Jimenez. She also served as a questioner. 2

      The critical comments by officers occurred after the second break in the

questioning that, in all, lasted about two hours. Up to that point, defendant

insisted that he did not remember inappropriately touching his sister -in-law.

The third officer, a male, had left the room. After Jimenez told defendant that

he had one last chance to "to be honest" with them, Larsen asked, through

Jimenez, what he was "most afraid of." Defendant, a non-U.S. citizen from

Guatemala, said he was afraid of deportation, and being separated from his wife

and children. He mentioned a friend who "had issues with his wife, and he ended

up getting deported."



2
  The State did not include the recording in the appendix on appeal. The English
transcript does not indicate when Jimenez or defendant spoke in Spanish. We
can only surmise that when Jimenez reiterated Larsen's statements, she did so in
Spanish.
                                                                         A-3662-17T1
                                       3
        Speaking without Jimenez's assistance, Larsen distanced herself from

immigration enforcement, responding "I mean, just so you know, I'm not the

deportation police. . . . I'm the detective police, in a way. All right? Not the

deportation police. So I can['t] speak to that at all. Sorry, I can't."3 She then

tried to allay his fears, stating: "But I think what you're worried about are things

that are not . . . I don't want to say that they're not in reality 'cause that's your

reality, Ok?" She added, "But if what you're afraid of is those things, and that's

why you're not telling us the truth, it's really hard to kind of understand this

whole situation. . . . I understand if that's why it's holding you back from talking

to us, from telling us what you remember. I understand that."

       Jimenez then summarized very briefly, "She says that she understands that

. . . we're not, uh . . . the deportation police." Jimenez then added, "We don't

work for Immigration. We, simply, deal with cases that . . . are related to

something sexual. . . . Um, we know that we can't always say what's going to

happen.     You know what I mean?"           Acknowledging defendant's fear of

deportation, Jimenez stated, "That's the fear that you have. But that's not

something that we, uh . . . have, uh . . . here we're not looking to deport you or




3
    We presume "can" is an error, given the sentence that followed.
                                                                             A-3662-17T1
                                         4
 anything like that. Ok?" Defendant apparently stated, "Ok" in Spanish, because

Jimenez translated his response.

      Larsen then characterized deportation as the "worst case scenario."

            Ok. So . . . he understands that, Ok. And is that what's
            holding him back from telling us the truth? 'Cause if
            that's what, that's what I'm hearing. It's, I'm hearing
            he's afraid of all these things happening. He's like kind
            of thinking of the worst case scenario. And putting that
            in the way of being able to tell us what happened.

Jimenez then asked defendant, "Is that, is that the reason that you're not being

honest with us?" Defendant responded affirmatively.

      After Larsen reiterated that she was "not the immigration police," Jimenez

tried to convince defendant his situation was different from his friend's. After

first saying that the friend's case was "maybe . . . something totally different,"

which prompted defendant to draw similarities, Jimenez unqualifiedly stated,

"But, like I'm telling you, they are totally different cases." Jimenez then told

defendant that she did not want him to think about deportation because that was

"the extreme" and she "d[id]n't want to go to the extreme."

      Jimenez urged defendant to tell his side of the story, suggesting that he

had made a mistake, or he was under the influence of alcohol. She stated that

the officers did not want to have to report that defendant "doesn't remember."

She again stated that defendant had a "last chance" to be honest. At that point,

                                                                          A-3662-17T1
                                        5
 defendant asked whether he was going to be incarcerated, "So I'm not going to

leave free from here?"

      Jimenez deflected, stating that defendant's admissions would "help" him.

"We're not saying that. What we're saying is that in our interview, we want you

to be honest with us. Because that will help you . . . in the future." After stating

that the child would be viewed as a liar if defendant did not confess, Jimenez

assured defendant that if he explained what happened, he could get help for his

problem. "[T]ell us your side of the story. And, and, and to see why that

happened. And maybe give you the help that you need. Because we know that

in this country there are programs to help everybody. And if you, maybe, have

a problem, uh . . . a sexual problem, or something that is uncontrollable, you

could also get help for that." After Jimenez acknowledged defendant was a hard-

working man, and asked him what he remembered, defendant admitted he

touched the child inappropriately, and provided additional details in response to

further questioning.

      The    court     suppressed   those    admissions.       Judge    Borkowski

comprehensively reviewed the governing principles of law. In sum, recognizing

that the State bears the burden to prove beyond a reasonable doubt that

defendant's statements were voluntary, see State v. Galloway,  133 N.J. 631, 654


                                                                            A-3662-17T1
                                         6
 (1993), the court appropriately considered the totality of the circumstances. See

State v. Hreha,  217 N.J. 368, 383 (2014); Galloway,  133 N.J. at 654.               In

particular, the court weighed defendant's personal characteristics. See State v.

Knight,  183 N.J. 449, 462-63 (2005). Those included that he was a twenty-nine-

year-old immigrant from Guatemala with a limited education, whose primary

language was Spanish, and who had no prior experience with the criminal justice

system.

      After carefully analyzing Jimenez's and Larsen's various representations

in the aggregate, the court concluded "[T]he detective's implied representations

that defendant would be able to go home, would not have to worry about being

deported, and that he would be able to obtain counseling, taken together, misled

the defendant." As for defendant's fear of deportation, the court acknowledged

that the detectives truthfully informed defendant that they did not work for

immigration.    But, they also characterized deportation as a "worst case

scenario"; told defendant that his friend's case was "totally different"; and stated

that they did not "want to go to the extreme" of deportation. As in State v.

Puryear,  441 N.J. Super. 280 (App. Div. 2015), the court here held that the




                                                                            A-3662-17T1
                                         7
 detective's assurance that confessing would help him directly contravened the

Miranda4 warning that anything he said could and would be used against him.

       We deferentially review the trial court's findings on a motion to suppress,

even when it bases them solely on a recording or documentary evidence. State

v. S.S.,  229 N.J. 360, 379-80 (2017). We review the court's fact-findings only

to determine if they are supported by sufficient credible evidence in the record. 5 Id. at 381. However, we review de novo issues of law. Id. at 380. Applying

that standard of review, we affirm substantially for the reasons stated in Judge

Borkowski's thorough opinion. The record adequately supports the court's fact-

findings, and we discern no error of law.

       We briefly address the State's argument that the court erred because the

detectives did not make a direct false statement or promise. The State contends

the detectives accurately stated they did not enforce immigration law; they



4
    Miranda v. Arizona,  384 U.S. 436 (1966).
5
  Notably, in this case, we could not, even if we so desired, review de novo the
recording, as it was not included in the record before us. However, its omission
also hampers our ability to perform our limited task to ascertain whether the
record provides sufficient support for the court's findings. We are limited to a
review of the cold transcript, which has been likened to a dehydrated piece of
fruit, having "neither the substance nor the flavor" of the real thing. See State
v. Locurto,  157 N.J. 463, 472 (1999).


                                                                          A-3662-17T1
                                        8
 truthfully did not want to focus on the "extreme scenario";6 and they never

directly assured defendant he would not be deported. However, the detectives'

statements were not to be viewed in a vacuum.            The trial court properly

considered the detectives' statements in light of the totality of circumstances.

See Hreha,  217 N.J. at 383. The court properly considered the statements from

defendant's point of view. "Whether a statement by the interrogating officer

amounts to a promise must be viewed from the defendant's, not the

[interrogator]'s perspective, applying a reasonableness standard." State v. Pillar,

 359 N.J. Super. 249, 272 (App. Div. 2003) (quoting State v. Watford,  261 N.J.

Super. 151, 163 (App. Div. 1992) (Havey, J., concurring)).

        Although the detectives accurately stated they were not immigration

officers, they affirmatively stated that defendant's case was substantively

different from that of his friend who was deported, leading defendant to believe

he would not suffer the same fate as his friend. The detectives stated they did

not "want to go to the extreme" of deportation, as if they had some power over

whether defendant would suffer that extreme consequence. Considering the

context in which the detectives spoke, defendant could reasonably understand

the detectives to assure him that he would not be deported. The record supports


6
    Actually, the detectives referred to the "worst case scenario."
                                                                           A-3662-17T1
                                          9
 the court's conclusion that defendant's will was overborne by the detectives'

immigration-related statements, along with the assurances that defendant would

help himself and receive treatment if he confessed.

      Affirmed.

Fall Municipal Court Law review 2018

 Fall Municipal Court Law review 2018

By Kenneth Vercammen Esq.

1.        No weekend jail for third offender DWIs, must serve straight time

State v. Anicama

2 Plain feel of bulge of rock cocaine permitted search

State v Evans

3       No forced entry into locked apartment. State v. Sencion

4. Ok to apply for expungement even if discharged from probation In re Expungement of the Criminal Records of E.C

5. Driver can be charged with criminal driving while suspended if they had prior refusal and prior dwi State v Dougherty

6.Ordinary police video not subject to OPRA

Paff v. Ocean County Prosecutor’s Office  

7. NJ Driver had to pay surcharge based on Illinois DWI

Koscinski v. New Jersey Motor Vehicle Comm.

8. Officer writing refusal as 39:4-50.2 rather than N.J.S.A. 39:4-50.4a. does not dismiss refusal State v. Dito

Photo New NJ assembly Speaker Craig Coughlin w Ken Vercammen at Middlesex Bar Goes Local page 1

1. No weekend jail for third offender DWIs, must serve straight time

State v. Anicama

Defendant was convicted of a third or subsequent offense of driving while intoxicated (DWI). The Municipal Court allowed him to serve the mandatory 180-day sentence under N.J.S.A. 39:4-50(a)(3) two days per week. The Law Division reversed.

The Appellate Division holds a third or subsequent DWI offender is ineligible for periodic service. Michael's Law amended the DWI statutes to require the 180-day sentence be spent in jail, excepting only up to ninety days spent in inpatient drug or alcohol rehabilitation, and to preclude other options. The amendment to N.J.S.A. 39:4-51 was intended only to bar work release for such offenders, not to lift the prohibition on their release before the jail term had been served. The specific law governing DWI sentences governs over the general provision for periodic service in N.J.S.A. 2B:12-22. The court disapproves State v. Grabowski, 388 N.J. Super. 431 (Law Div. 2006), which permitted such periodic service.   (A-0452-16T4)

2 Plain feel of bulge of rock cocaine permitted search

State v Evans

The panel erred in its application of the “plain feel” doctrine. Officer Laboy had witnessed “hundreds” of instances where defendants concealed contraband in the front of their pants and therefore immediately recognized the “rocklike” substance he felt to be similar to crack cocaine. Between the officer’s experience-derived identification of the substance and the presence of $2000 in cash, the “plain feel” exception -- which the Court adopts -- applied. (A-85/86-16;

 3.  No forced entry into locked apartment. State v. Sencion, 454 N.J. Super. 25 (App. Div. 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." 

 4. Ok to apply for expungement even if discharged from probation In re Expungement of the Criminal Records of E.C., 454 N.J. Super. 48 (App. Div. 2018).

    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."

5. Driver can be charged with criminal driving while suspended if they had prior refusal and prior DWI State v Dougherty

The court finds that the plain language of N.J.S.A. 2C:40-26(b), the fourth-degree offense of driving while suspended, includes both driving while under the influence (DWI), N.J.S.A. 39:4-50, and refusal to submit to breath testing (refusal), N.J.S.A. 39:4-50.4a. They are predicate offenses even where the prior conviction history consists of one conviction under the separate sections of the Motor Vehicle Code. In other words, one DWI and one refusal suffice for the criminal offense of driving while suspended.

6.Ordinary police video not subject to OPRA

Paff v. Ocean County Prosecutor’s Office  

    The Court reverses the judgment of the Appellate Division panel, concurring with the panel’s dissenting judge that the MVR recordings were not “required by law” within the meaning of N.J.S.A. 47:1A-1.1, that they constitute criminal investigatory records under that provision, and that they are therefore not subject to disclosure under OPRA. The Court agrees with the panel’s conclusion that the recordings are not within OPRA’s “investigations in progress” provision, and that OPRA’s privacy clause does not exempt the recordings from disclosure. The Court remands the matter to the trial court for consideration of plaintiff’s claim of a common-law right of access to the MVR recordings.

7. NJ Driver had to pay surcharge based on Illinois DWI

Koscinski v. New Jersey Motor Vehicle Comm.unreported

  Koscinskiwas convicted of driving while intoxicated, his first conviction of such offense. Three years later, appellant was charged in Illinois for the same offense. The sentence the Illinois court imposed was that appellant "continue counseling in New Jersey" and pay a fine of $750. Both states were members of the Interstate Driver License Compact, which required party states to impose penalties upon licensed drivers who have been convicted of specific offenses in other states. 

After receiving a record of the Illinois conviction, respondent issued petitioner a notice of suspension. Respondent denied appellant's request for a hearing finding none of the factual or legal issues asserted warranted such a proceeding and ordered his license to be suspended. Subsequently, appellant informed respondent that he received a notice that respondent intended to increase the monthly payment toward the surcharge it imposed as a result of the Illinois conviction and requested a hearing. Respondent issued a written decision in which it pointed out N.J.S.A. 17:29A-35 required a specific assessment when a New Jersey driver had been convicted of driving under the influence of alcohol. 

On appeal, the court affirmed rejecting appellant's argument that respondent was without authority to impose a surcharge or an increase in the surcharge because he had previously paid a fine to the Illinois court in connection with that conviction. Under the Compact, appellant was subject to punishment in both states for driving while intoxicated. Moreover, appellant failed to identify any material facts that were in dispute, which would otherwise require a hearing. Accordingly, the court affirmed. Source NJLJ Daily Briefing

https://www.law.com/njlawjournal/almID/1518660613NJA006516

8. Officer writing refusal as 39:4-50.2 rather than N.J.S.A. 39:4-50.4a. does not dismiss refusal State v. Ditounreported App. Div. 

An officer issued respondent a summons for driving while intoxicated and for refusal to submit to a breath test. Respondent moved to dismiss the refusal charge on the ground that the summons referenced N.J.S.A. 39:4-50.2 rather than N.J.S.A. 39:4-50.4a. Following the municipal court judge's denial of his motion, respondent pled guilty to both charges. On appeal, the law division judge found that respondent's summons for refusal to submit the breath test had incorrectly cited the statutory authority; the judge concluded that the error was fatal as it failed to inform respondent of the nature of the charge against him. Appellant now argued that the law division judge erred by dismissing the summons as it provided respondent with adequate notice of the charge and the penalties he faced if found guilty of refusal. 

The court reversed finding the trial court erred by concluding that the summons issued was fatally flawed for its incorrect statutory citation. Since the elements of refusal were found in both statutes, the citation of only the N.J.S.A. 39:4-50.2 did not require dismissal of the summons. The court noted that dismissal of the charges under these circumstances would exalt form over substance, an approach the courts have properly rejected. Moreover, respondent was not prejudiced or denied due process as the record showed the officer read respondent the Attorney General's standard statement, thereby informing respondent that if he failed to submit to the breath test, he would be charged with refusal. Accordingly, the court reversed. Docket A-2699-16T3 source https://www.law.com/njlawjournal/almID/1515728233NJA269916T/

Photo New NJ assembly Speaker Craig Coughlin w Ken Vercammen at Middlesex Bar Goes Local. Two great Irishmen 

 Summer Blast Happy Hour July 13, 2018 at Bar A was a good time.

We thank over 100 professionals, attorneys and friends who attended the Summer Blast Happy Hour & Networking Social at Bar Anticipation. My family and I had a great time catching up with old friends and meeting new ones. 

We appreciate the many attendees donated canned goods donated which were donated to St. Matthews Edison Food Pantry.

 

Calendar

November 7 NJSBA Papal Audience with Pope Francis Vatican City St. Peter’s Square and Rome Ethics program

Contact NJSBA for details

November 27 Free Woodbridge Library

Wills, Estate Planning & Probate Seminar at 7pm 

       WILLS & ESTATE ADMINISTRATION-PROTECT YOUR FAMILY AND MAKE PLANNING EASY Free program open to the public, you do not need to be a Township resident to attend

     SPEAKER: Kenneth Vercammen, Esq. Edison, NJ (Author- Wills and Estate Administration by the ABA)

      

Main Topics:

 1. NJ Estate Tax eliminated for 2018 & NJ Veterans Tax exemption of up to $3,000

2. The 2018 changes in Federal Estate and Gift Tax 

3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent

4. Power of Attorneys       

5.  Living Will           

6.  Administering the Estate/ Probate/Surrogate

7. Avoiding unnecessary expenses

COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.

Woodbridge Public Library

1 George Frederick Plaza

Woodbridge NJ 07095 

STATE OF NEW JERSEY VS. J.S.G. (13-12-1208, GLOUCESTER COUNTY AND STATEWIDE) (A-4665-14T4)

STATE OF NEW JERSEY VS. J.S.G. (13-12-1208, GLOUCESTER COUNTY AND STATEWIDE) (A-4665-14T4)

This appeal involves the warrantless, nonconsensual search of children's school records for the name of their father, defendant J.S.G., who was the owner of a vehicle linked to two burglaries. Defendant filed a motion to suppress his name, arguing the police obtained it in violation of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.A. § 1232g, and its corresponding regulation, 34 C.F.R. § 99, and the New Jersey Pupil Records Act (NJPRA), N.J.S.A. 18A:36-19, and its corresponding regulations, N.J.A.C. 6A:32-7.1 to -7.8, governing the disclosure of student educational records.

We affirmed the denial of defendant's motion, finding FERPA did not create an enforceable right or provide for suppression as set forth in Gonzalez Univ. v. Doe, 536 U.S. 273 (2002). By analogy, we relied on State v. Evers, 175 N.J. 355 (2003), involving the Federal Electronic Communications Privacy Act (ECPA), to conclude that FERPA, like the ECPA, does not confer a reasonable expectation of privacy under the Fourth Amendment in student records.

We considered the NJPRA and its corresponding regulations, which permit school officials to provide directory information, including a student's name, to law enforcement, and which require school official to provide such information at the request of law enforcement. We also determined that like FERPA, the NJPRA merely provides administrative remedies for violations and does not permit a private right of action or suppression. We also ruled that the NJPRA does not create a reasonable expectation of privacy in student records under Article I, paragraph 7 of the New Jersey Constitution.

Finally, we followed federal law, which holds that a defendant's identity resulting from an unlawful search is not subject to the exclusionary rule.