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Sunday, November 18, 2018


The court reverses two murder convictions. The motion to suppress a photograph of a gun and ammunition similar to that used in the double murder should have been granted because the photograph was mistakenly provided by Sprint in response to a communications data warrant (CDW) that did not seek photographs. The State argued that the photograph was in plain view, but as the file containing the photograph was clearly identified as a photograph, and labeled as outside the time frame of the CDW, the court rejects the plain view argument. Admission of that photograph was not harmless error, given the State's repeated emphasis on the photograph in summation as well as the fact that the jury declared itself deadlocked three times.


The trial court's order compelling defendant to disclose the passcodes to his cell phones does not violate his right against self-incrimination under the Fifth Amendment to the United States Constitution because, although the defendant's act of producing the passcodes conveyed implicit facts as to the ownership, control, and ability to access the phones, the conveyance of these facts was a foregone conclusion because defendant did not give the State any information it did not already possess. The order also does not violate defendant's right against self-incrimination under New Jersey's common law, N.J.S.A. 2A:84A-19, or N.J.R.E. 503.


Defendant challenges the denial of his fourth petition for post-conviction relief (PCR), arising from a 1984 murder conviction. He contends that the revised waiver statute, N.J.S.A. 2A:4A-26.1(c)(1), effective March 1, 2016, should have been retroactively applied by the PCR judge pursuant to our holding in State in Interest of J.F., 446 N.J. Super. 39 (App. Div. 2016). Although defendant was fourteen years and one month of age at the time he committed the crime, we hold N.J.S.A. 2A:4A-26.1(c)(1), which does not authorize waiver to adult court of a juvenile under the age of fifteen, has no retroactive application where a defendant's conviction and sentence have been adjudicated with finality.

Tuesday, November 13, 2018

Supreme Court rules Breath test results produced by Alcotest machines are inadmissible if not calibrated using a NIST-traceable thermometer State v. Cassidy

Supreme Court rules Breath test results produced by Alcotest machines are inadmissible if not calibrated using a NIST-traceable thermometer 
  State v. Cassidy  (A-58-16; 078390)
The Special Master’s findings are supported by substantial credible evidence in the record, and the Court adopts them. Breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible.
The Court considered the admissibility of breath test results produced by Alcotest machines not calibrated using a thermometer that produces temperature measurements traceable to the standards set by the National Institute of Standards and Technology (NIST). 
In 2000, the State began using the Alcotest, a product of Draeger Safety Diagnostics Inc. (Draeger), to conduct breath tests. The Alcotest machine analyzes breath samples, producing blood alcohol concentration readings used to determine whether a driver’s blood alcohol content is above the legal limit. In 2004, Dr. Thomas A. Brettell developed the current calibration protocol while he was director of the State’s Office of Forensic Sciences (OFS). In 2008, the Court found results from Alcotest machines calibrated pursuant to Dr. Brettel’s protocol sufficiently reliable to be admissible in drunk-driving cases to establish a defendant’s guilt or innocence for drunk driving. State v. Chun, 194 N.J. 54, 65 (2008). The Court also required that the devices be recalibrated semi-annually to help ensure accurate measurements. Id. at 153. 
During the calibration process, simulator solutions are heated to about 34 degrees Celsius, the generally accepted temperature for human breath. It is essential that the temperature of the solution be accurate in order for the Alcotest’s blood alcohol content readings to be correct. The Alcotest’s calibration procedure requires the test coordinator to insert a thermometer that produces NIST-traceable temperature measurements into the simulator solution used to calibrate the Alcotest and confirm that the calibration unit heated the solution to a temperature within 0.2 degrees of 34 degrees Celsius. When a thermometer’s temperature measurements are “traceable” to the standard measurements of the NIST, those measurements are generally accepted as accurate by the scientific community. There are two other temperature probes used during the calibration procedure. Unlike the NIST-traceable thermometer, they are manufactured and calibrated by Draeger.
Marc W. Dennis, a coordinator in the New Jersey State Police’s Alcohol Drug Testing Unit, was tasked with performing the semi-annual calibrations on Alcotest instruments used in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. He is charged with neglecting to take required measurements and having falsely certified that he followed the calibration procedures. Dennis was indicted in 2016 for failing to use a NIST- traceable thermometer to measure the temperature of simulator solutions used to calibrate Alcotest devices. When Dennis was criminally charged, the Attorney General’s Office notified the Administrative Office of the Courts that evidential breath samples from 20,667 people were procured using Alcotest machines calibrated by Dennis. 
Defendant Eileen Cassidy, now deceased, pleaded guilty in municipal court to driving under the influence based solely on Alcotest results showing her blood alcohol level had exceeded the legal limit. Upon learning that the results of her test were among those called into question by Dennis’s alleged falsifications, she moved to withdraw her guilty plea. The Attorney General moved for direct certification. The Court granted the motion and remanded the case to retired Appellate Division Presiding Judge Joseph F. Lisa as Special Master to determine whether “the failure to test the simulator solutions with the NIST- traceable digital thermometer before calibrating an Alcotest machine [would] undermine or call into question the scientific reliability of breath tests subsequently performed on the Alcotest machine.” 230 N.J. 232, 232-33 (2017). 
After an extensive evidentiary hearing, the Special Master issued a 198-page report in which he concluded that failure to use a thermometer that produces NIST-traceable temperature readings in the calibration process undermines the reliability of the Alcotest and that the State failed to carry its burden of proving by clear and convincing evidence that the Alcotest was scientifically reliable without a NIST-traceable temperature check. The Special Master’s report is appended to the Court’s opinion. 
HELD: The Special Master’s findings are supported by substantial credible evidence in the record, and the Court adopts them. Breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible. 
1. This case is justiciable despite defendant’s passing. The Court will entertain a case that has become moot when the issue is of significant public importance and is likely to recur. The reliability and admissibility of thousands of breath samples, often used as the sole evidence to support a conviction, is of significant public importance. 
2. Scientific test results are admissible in a criminal trial only when the technique is shown to be generally accepted as reliable within the relevant scientific community. Chun, 194 N.J. at 91. Although the Court recently adopted the factors identified in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95 (1993), and a methodology-based approach for determining scientific reliability in certain areas of civil law, the Court has not altered its adherence to the general acceptance test for reliability in criminal matters. The proponent of the technique has the burden to clearly establish general acceptance and may do so using
(1) expert testimony, (2) scientific and legal writings, and (3) judicial opinions. The party proffering the evidence need not show infallibility of the technique nor unanimity of its acceptance in the scientific community. 
3. Of the State’s witnesses, the Special Master found only the testimony of Dr. Brettell worthy of substantial weight; he found defendant’s expert credible. The Court defers to and adopts the Special Master’s detailed credibility findings. 
4. Based on the credible testimony, the Special Master determined that accurate temperature readings of the simulator solutions are “the foundation upon which the entire calibration process is built.” The Special Master found NIST traceability “essential” to confidence in the Alcotest’s results and that the two Draeger-manufactured probes were not NIST-traceable and were insufficient substitutes for the use of a NIST-traceable thermometer. The Special Master also found it particularly significant that the NIST-traceable thermometer was the only temperature measuring device used in the calibration process that was independent from the Alcotest and not manufactured and calibrated by Draeger. The Special Master found it “extremely important and persuasive” that current protocol treats the failure to achieve an in- range temperature reading using the NIST-traceable thermometer as an event of sufficient magnitude to abort a calibration. The Special Master reasoned that such facts clearly cut against the State’s argument that the use of the thermometer is an unnecessary redundancy. Further, the Special Master rejected the State’s theory that ten simultaneous failures would need to occur for the certainty of Alcotest results to be compromised, finding instead that the evidence showed that three relatively minor errors could cause undetected miscalibrations. The Special Master determined that the State had not shown that other states’ practices revealed general acceptance of the reliability of Alcotest results without the use of a NIST- traceable thermometer. Because the Special Master’s findings are supported by substantial credible evidence in the record, the Court adopts them. 
5. Applying the general acceptance standard to the Special Master’s findings, the Court holds that the State failed to carry its burden and affirms the Special Master’s conclusion. Temperature measurements that are NIST-traceable are generally accepted as reliable by the scientific community. Part of that reliability lies in the fact that the level of uncertainty of each temperature measurement is known. The two Draeger-manufactured probes fail to meet the NIST’s standards and the measure of uncertainty in their temperature readings is unknown. The Court does not accept the State’s contention that the risk of miscalibration is infinitesimal due to the numerous other fail-safes in the calibration procedure. As Dr. Brettell testified, it was that very fear of a laboratory bias that led him to include the NIST- traceable thermometer in the calibration procedure. 
6. The Court orders the State to notify all affected defendants of its decision that breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible and commends to the State that it require the manual recording of the NIST- traceable readings going forward. Further, the Court lifts the stay on all pending cases so that deliberations may commence on whether and how those cases should proceed. For those cases already decided, affected defendants may now seek appropriate relief. Because the State waited approximately a year to notify the affected defendants, the Court relaxes the five-year time bar, R. 7:10-2(b)(2), in the interests of justice. The Court asks the Director of the Administrative Office of the Courts to monitor these cases and recommend how best to administer them in the event any special measures are needed. Finally, as to defendant Cassidy, the Court exercises its original jurisdiction and vacates her conviction. 

Saturday, November 10, 2018


The court reverses and remands for reconsideration the trial court's order of pre-trial detention. The State charged defendant with cyber-harassment, N.J.S.A. 2C:33-4.1(a)(2); and retaliation against a witness, N.J.S.A. 2C:28-5(b), based on Facebook posts in which defendant, in coarse language, identified and castigated a witness at a murder trial, and expressed her hope that someone would "blow [his] glasses . . . off his face." The court reverses the trial court's findings of probable cause with respect to cyber-harassment, as the posts did not involve lewd, indecent, or obscene statements. Applying First Amendment principles governing "true threats," and "advocacy intended, and likely, to incite imminent lawless action," United States v. Alvarez, 567 U.S. 709, 718 (2012), the court affirms the trial court's finding of probable cause to charge retaliation, but concludes that the "weight of the evidence against the . . . defendant," N.J.S.A. 2A:162-20(b), was nonetheless weak, requiring reconsideration of the detention decision.

State v. Nicholas Kiriakakis (080100) (Bergen County and Statewide) (A-51-17

The four-year period of parole ineligibility imposed by the court in exercising its sentencing discretion pursuant to N.J.S.A. 2C:43-6(b) fell within the range authorized by the jury’s verdict and therefore did not violate Alleyne or the Sixth Amendment. In issuing a mandatory-minimum term, the court merely identified and weighed traditional sentencing factors to set an appropriate sentence within the statutory range set by the Legislature. The aggravating factors found by the court here were not the functional equivalent of the elements of an offense.

Saturday, November 03, 2018


We affirm defendant's judgment of conviction for fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant claimed his guilty plea lacked an adequate factual basis and he demonstrated a colorable claim of innocence. We hold the trial court properly reviewed defendant's claims using the factors set forth in State v. Slater, 198 N.J. 145 (2009), and not a de novo standard of review. We conclude the trial court did not abuse its discretion in making these findings and that there was an adequate factual basis for the guilty plea.
Dissent and opinion filed.

State v. Rainlin Vasco (A-54-17

State v. Rainlin Vasco (A-54-17) (080426)
(NOTE: The Court did not write a plenary opinion in this case. Instead, the Court reverses the judgment of the Appellate Division substantially for the reasons expressed in Judge Espinosa’s dissenting opinion, which is published at ___ N.J. Super. ___, ___(App. Div. 2017) (Espinosa, J.A.D., dissenting).)
Argued October 9, 2018 -- Decided October 30, 2018 PER CURIAM
A majority of an Appellate Division panel affirmed defendant Rainlin Vasco’sjudgment of conviction. The Court considers whether, under the circumstances presented, defendant provided a sufficient factual basis for his guilty plea.
Defendant was arrested when his mother called 9-1-1 to report that he had threatened his girlfriend, N.C., with a knife and was punching N.C. in the leg. N.C. gave a statement to police on the night of the incident. Defendant was initially charged with simple assault, terroristic threats, and possession of a weapon for an unlawful purpose. In September 2015, pursuant to a plea agreement, he pleaded guilty to fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d).
During defendant’s plea allocution, he was asked, “[Y]ou didn’t have a lawful purpose for that knife, right?” He answered, “I had a lawful purpose, like, I didn’t want to do anything unlawful. I just possessed it.” The judge then indicated he could not accept the plea because defendant had not presented an adequate factual basis and suggested the partiesreturn after the lunch break. When they did, counsel asked defendant, “And you didn’t havea lawful purpose for that knife, right?” to which defendant said, “I did not.” The judgeindicated he was satisfied defendant provided an adequate factual basis for his guilty plea.
Defendant later moved to withdraw his plea, arguing that it lacked an adequate factual basis. He submitted a certification stating that he held the knife to move it away from N.C. for fear she would use it against him, not to use it as a weapon. He also provided a statement N.C. gave to his investigator in which she recanted her prior allegations. Defendant’s mother gave a statement indicating that defendant had a knife. The motion judge found there was anadequate factual basis for defendant’s plea.
A majority of the Appellate Division panel affirmed the motion judge’sdetermination. ___ N.J. Super. ___, ___ (App. Div. 2017) (slip op. at 1).
Judge Espinosa dissented. She observed that the issue in this case is whether defendant “admitted his guilt” -- “not whether the State could prove defendant’s guilt” -- and stressed that “the threshold for [appellate] review must be a recognition of the differencebetween a conviction following a trial, in which the defendant has been afforded his constitutional rights, and a conviction following a guilty plea, in which he has waived those rights.” Id. at ___ (Espinosa, J.A.D., dissenting) (slip op. at 1). Before a court can accept adefendant’s guilty plea, it first must be convinced that (1) the defendant has provided anadequate factual basis for the plea; (2) the plea is made voluntarily; and (3) the plea is made knowingly.” Id. at ___ (slip op. at 2) (quoting State v. Lipa, 219 N.J. 323, 331 (2014)). Thedissent noted that “each element of the offense [must] be addressed in the plea colloquy,” id. at ___ (slip op. at 2) (quoting State v. Campfield, 213 N.J. 218, 231 (2013)), and that “[t]he Court has made it clear the defendant must be the source for establishing the factualfoundation,” id. at ___ (slip op. at 2).
The dissent discussed State v. Gregory, 220 N.J. 413 (2015), in which the Court found no adequate factual basis for a guilty plea for possession with intent to distribute because the defendant did not indicate in his plea allocution that he intended to distribute the heroin he possessed. Id. at ___ (slip op. at 3-5). Had the Court looked to the evidence, notsolely to defendant’s allocution, the dissent observed, “the factual basis given . . . would appear to be adequate; the Court did not look beyond the allocution, however. Id. at ___ (slip op. at 4). The dissent also relied on State v. Perez, in which the Court specified that [a] defendant must do more than accede to a version of events presented by the prosecutor. Rather, a defendant must admit that he engaged in the charged offense and provide a factual statement or acknowledge all of the facts that comprise the essential elements of the offense to which the defendant pleads guilty.” See id. at ___ (slip op. at 4) (quoting Perez, 220 N.J. 423, 433-34 (2015)).
Noting that “[t]he essential elements of an offence under N.J.S.A. 2C:39-5(d) are
(1) there was a weapon, (2) defendant possessed the weapon knowingly, and (3) the
defendant’s possession of the weapon was under circumstances not manifestly appropriate for a lawful use,” the dissent opined that defendant’s allocution did not contain admissions asto each of those three elements as required by Gregory and Perez. Id. at ___ (slip op. at 6-8).According to the dissent, “it was necessary for defendant to admit to circumstances that weremanifestly inappropriate to provide an adequate factual basis for his guilty plea.” Id. at ___ (slip op. at 7). The dissent underscored that “the majority . . . cited circumstances derivedfrom statements made by witnesses who have since recanted” but that “none of [those]circumstances were acknowledged by defendant.” Id. at ___ (slip op. at 8).
Finally, the dissent “address[ed] the appropriate standard of review” and observedthat the Court has distinguished between the review of cases in which the plea is supported by an adequate factual basis and those in which it is not.” Id. at ___ (slip op. at 8-9) (discussing State v. Tate, 220 N.J. 393, 403-04 (2015)). In the latter case, an appellate courtexercises a de novo review and, “if a factual basis has not been given to support a guilty plea,the analysis ends and the plea must be vacated.” Id. at ___ (slip op. at 9) (quoting Tate, 220
N.J. at 404). “[W]here the plea is supported by an adequate factual basis but the defendantlater asserts his innocence,” by contrast, the factors set forth in State v. Slater, 198 N.J. 145 (2009), and the abuse-of-discretion standard apply. Id. at ___ (slip op. at 9) (quoting Tate, 220 N.J. at 404).
HELD: The judgment of the Appellate Division is reversed substantially for the reasons expressed in Judge Espinosa’s dissenting opinion. Defendant’s guilty plea is vacated and the matter is remanded to the trial court for further proceedings.
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion.