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Tuesday, May 26, 2020

STATE OF NEW JERSEY VS. IAN W. MARIAS (18-12-3840, ESSEX COUNTY AND STATEWIDE) (A-2145-19T1)

This court granted the State leave to appeal in this pending criminal case to address the grading aspects of the money laundering statute, N.J.S.A. 2C:21-23 to -29. The core and unresolved legal question is the meaning of the term "amount involved" in N.J.S.A. 2C:21-27, which calibrates the severity of the offense.
Specifically, N.J.S.A. 2C:21-27(a) prescribes that a defendant commits a first-degree money laundering offense if the "amount involved" is $500,000 or more. The crime is a second-degree offense if the "amount involved" is under $500,000 but equal to or more than $75,000. Lastly, it is a third-degree offense if the "amount involved" is under $75,000
As this opinion explains, this court holds that where, as here, a defendant is charged with engaging in a money laundering transaction prohibited by N.J.S.A. 2C:21-25(b), the "amount involved" is the fair market value of the property transferred in that transaction and any other transactions conducted as part of that common scheme. That fair market value is to be determined by the trier of fact. The value is not necessarily equal to or limited by the sum that the money launderer received in the illicit transaction(s). However, the court rejects the prosecutor’s argument that the “amount involved” in a case charged under the “transactional” provision of the money laundering statute includes the value of unsold stolen goods that were not part of a laundering transaction.

Monday, May 18, 2020

STATE OF NEW JERSEY VS. DERRICK LAWRENCE (17-07-0930 AND 17-07-0931, BERGEN COUNTY AND STATEWIDE) (A-2919-18T2)

Defendant was confined to the Bergen County Jail work release program for failure to pay child support. He was released to search for work and twice failed to return to jail on a timely basis resulting in his indictment, subsequent plea, and sentence on two counts of third-degree escape, N.J.S.A. 2C:29-5(a).
On this appeal, from a denial of defendant's PCR petition, the court reverses and holds that because a child support contempt proceeding is "essentially a civil proceeding," see Pasqua v. Council, 186 N.J. 127, 140 (2006), defendant could not be charged with the criminal offense of escape, and the PCR court erred as a matter of law.

State v. Quashawn K. Jones (081862) (Atlantic County & Statewide) (A-64-18; 081862)

Although the facts lie at the outer edges of what is sufficient to show a substantial step based on verbal acts, when defendant’s statements on the recorded conversations are considered in the context of this case, the State presented sufficient evidence for the jury to find a substantial step for attempted murder.

Tuesday, May 12, 2020

Domestic violence act applied to person who sent over 1,000 texts. C.C. VS. J.A.H. (FV-04-2424-19, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4425-18T3)

Domestic violence act applied to person who sent over 1,000 texts. C.C. VS. J.A.H. (FV-04-2424-19, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4425-18T3)

In this case of first impression, the court examines the meaning of a "dating relationship" under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, where the parties never experienced a traditional, in-person "date." Instead, their relationship was demonstrated by the intensity and content of their communications, including the exchange of nearly 1300 highly personal text messages.

Acknowledging the prevalence of virtual communications in today's society, especially in view of the COVID-19 pandemic, the court recognized text messaging and other forms of electronic communication enable rapid yet deep interactions at all hours. Those communications can form bonds that may be no less intimate than traditional dating activities.

The court concluded the proliferate and exceedingly intimate communications between the parties in the present matter constituted a dating relationship within the meaning of the Act and supported entry of the final restraining order.

Monday, May 11, 2020

State v. R.Y. (081706) (Ocean County & Statewide) (A-60-18;

The caseworker’s testimony regarding Sharie’s statement is clear evidence of third-party guilt and was therefore impermissibly excluded at trial. As such, the Court reverses the judgment of the Appellate Division and vacates defendant’s convictions for crimes against Sharie. However, the State’s leading questions were appropriate for the child victim witnesses, and defendant’s sentence was not manifestly excessive with respect to the convictions for crimes against Brianna. The Court finds no reason to disturb defendant’s convictions or sentence as to his offenses against Brianna.

Sunday, May 03, 2020

STATE OF NEW JERSEY VS. R.K. (99-08-0439

In these consolidated appeals, the court is asked to determine whether two sentences imposed on convicted sexual offender R.K. for violating a New Jersey Parole Board regulation imposing a Community Supervision for Life (CSL) condition banning the use of the Internet to access social media are unconstitutional on its face and as applied to him. The trial judge denied R.K.'s motions to correct his illegal sentences finding the ban did not violate his constitutional rights of free speech. Because the court concludes the blanket social media prohibition is both unconstitutional on its face based on Packingham v. North Carolina, 582 U.S. ___, 137 S. Ct. 1730 (2017), and as applied to R.K. based on J.I. v. N.J. State Parole Bd., 228 N.J. 204 (2017) and K.G. v. N.J. State Parole Bd., 458 N.J. Super. 1 (App. Div. 2019), the trial court's rulings are reversed, and the court remands for: (1) resentencing to remove the 2007 CSL condition prohibiting R.K. from accessing social networking on the Internet without the express authorization of the District Parole Supervisor; and (2) allowing R.K. to withdraw his September 2012 guilty plea for violating the terms of his CSL condition prohibiting him from accessing social networking.

Tuesday, April 28, 2020

STATE OF NEW JERSEY VS. R.K. (99-08-0439 AND 12-05-0377, SOMERSET COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED)

In these consolidated appeals, the court is asked to determine whether two sentences imposed on convicted sexual offender R.K. for violating a New Jersey Parole Board regulation imposing a Community Supervision for Life (CSL) condition banning the use of the Internet to access social media are unconstitutional on its face and as applied to him. The trial judge denied R.K.'s motions to correct his illegal sentences finding the ban did not violate his constitutional rights of free speech. Because the court concludes the blanket social media prohibition is both unconstitutional on its face based on Packingham v. North Carolina, 582 U.S. ___, 137 S. Ct. 1730 (2017), and as applied to R.K. based on J.I. v. N.J. State Parole Bd., 228 N.J. 204 (2017) and K.G. v. N.J. State Parole Bd.,458 N.J. Super. 1 (App. Div. 2019), the trial court's rulings are reversed, and the court remands for: (1) resentencing to remove the 2007 CSL condition prohibiting R.K. from accessing social networking on the Internet without the express authorization of the District Parole Supervisor; and (2) allowing R.K. to withdraw his September 2012 guilty plea for violating the terms of his CSL condition prohibiting him from accessing social networking.

Friday, April 24, 2020

Speeding conviction on radar upheld

Speeding conviction on radar upheld STATE OF NEW JERSEY,            Plaintiff-Respondent,  v.  ALEXANDER STAFF,       Defendant-Appellant. _______________________                     Submitted March 2, 2020 – Decided March 20, 2020                     Before Judges Geiger and Natali.                     On appeal from the Superior Court of New Jersey, Law                    Division, Camden County, Municipal Appeal No. 18-                    0024.                     ANOT FOR PUBLICATION WITHOUT THE                                APPROVAL OF THE APPELLATE DIVISION                                                                    SUPERIOR COURT OF NEW JERSEY                   APPELLATE DIVISION                                                         DOCKET NO. A-3777-18T4  PER CURIAM       Defendant Alexander Staff appeals his conviction for speeding,  N.J.S.A.  39:4-98, following an appeal de novo in the Law Division. We affirm.        We glean the following facts from the record. At defendant's municipal  court trial, the State presented testimony from Lieutenant James Abbott and  Patrolman Brian Usher of the Somerdale Police Department. Abbott testified  that on March 9, 2018, he was on patrol on Route 30 when he observed a motor  vehicle traveling at a high rate of speed, which he estimated to be "in excess of  the posted [forty-mile-per-hour] speed limit." He activated his radar unit, which  provided a reading that the vehicle was traveling fifty-six miles per hour. 1 Based  on this reading, Abbott initiated a motor vehicle stop and issued defendant a  citation for speeding.        The municipal court judge found that both Abbott and Usher were  credible, that Abbott testified "honestly, openly, [and] accurately," and that  "Usher's testimony was clear, concise, and accurate." He also found that based   1    Abbott also testified that he was a certified radar operator, and that he performed various tests to ensure that his radar unit was properly functioning before and after his shift on March 9, 2018. By way of example, he described a calibration procedure he performed using a twenty-mile-per-hour tuning fork and a fifty-mile-per-hour tuning fork, individually and then in combination with one another, to ensure that the radar unit's finding was "consistent with the proper reading." Further, Usher testified at the municipal trial that he was certified in radar operation and instruction and that he signed Abbott's radar operator card certifying him as a radar operator.                                                                            A-3777-18T4                                         2 

on Abbott's testimony, there was no "interference . . . with the proper operation  of the radar unit." As a result, the judge concluded that Abbott provided  "uncontroverted testimony" that defendant was traveling fifty-six miles per  hour, and that defendant's speed was "in excess of the speed limit posted," which  he found was forty miles per hour. As such, the municipal court judge found  defendant guilty of speeding and assessed an $86 fine and $33 in costs.        Upon a trial de novo, the Law Division also found defendant guilty. In its  oral decision, the court noted that it "read all the transcripts, . . . the briefs, . . .  [and] the case law," and determined the State established that defendant  committed a speeding violation. The court, however, amended the municipal  judge's finding that defendant traveled at a rate of speed of fifty-six miles per  hour to fifty-four miles per hour, which, according to the Law Division judge,  would reduce defendant's penalty from four points on his driver's license to two.  It also affirmed the fines and court costs imposed by the municipal court. On  appeal, defendant argues that:               POINT I               THE COURT ERRED WHEN IT DENIED DEFENSE              REQUESTS TO TAKE PICTURES OF THE RADAR              OPERATING MANUAL DUE TO "COPYRIGHT."               POINT II                                                                                   A-3777-18T4                                            3 

THE COURT ERRED WHEN IT DENIED DEFENSE REQUESTS FOR ALL ENGINEERING AND SPEED STUDIES USED TO SET THE SPEED LIMIT AT THE LOCATION OF THE ALLEGED VIOLATION.  POINT III  THE COURT ERRED WHEN IT DIRECTED DEFENDANT TO FILE A MOTION IN WRITING BUT ALLOWED THE STATE TO RESPOND ORALLY AT A MOTION TO COMPEL HEARING.  POINT IV  THE COURT SHOULD HAVE GRANTED A POSTPONEMENT WHEN [THE] STATE BROKE THE RULES OF COURT.  POINT V  THE COURT ERRED WHEN IT ALLOWED [THE] STATE TO ADMIT TUNING FORK CERTIFICATES NOT PROVIDED TO [THE] DEFENSE UNTIL MID- TRIAL.  POINT VI  [THE] COURT ERRED WHEN IT ALLOWED PTL. BRIAN USHER TO TESTIFY.  POINT VII  THE COURT ERRED WHEN IT WOULD NOT ALLOW [THE] DEFENSE TO ADMIT EXHIBITS INTO EVIDENCE.  POINT VIII                                              A-3777-18T4                    4             THE COURT ERRED WHEN IT ADMITTED [THE]             STATE'S INCOMPLETE RADAR OPERATING             CERTIFICATE UNSIGNED BY THE DECLARANT.              POINT IX              CONFLICTING TESTIMONY FROM THE CITING             OFFICER   SHOWS   REASONABLE   DOUBT             CONCERNING DEFENDANT'S SPEED.        Having reviewed the record in light of the parties' arguments and the  applicable legal standards, we affirm. To the extent we do not address any of  defendant's arguments, it is because we consider them sufficiently without merit  to require discussion in a written opinion. R. 2:11-3(e)(2). We offer only the  following brief comments.        Our review of the trial court's factual findings is limited to whether the  conclusions of the Law Division "could reasonably have been reached on  sufficient credible evidence present in the record." State v. Johnson,  42 N.J.  146, 162 (1964). Unlike the Law Division, we do not independently assess the  evidence. State v. Locurto,  157 N.J. 463, 471 (1999). The rule of deference is  more compelling where, such as here, the municipal and Law Division judges  made concurrent findings as to the critical issue challenged on appeal, i.e., that  defendant was speeding. Id. at 474. "Under the two-court rule, appellate courts  ordinarily should not undertake to alter concurrent findings of facts and                                                                             A-3777-18T4                                         5 

credibility determinations made by two lower courts absent a very obvious and  exceptional showing of error." Ibid. (citing Midler v. Heinowitz,  10 N.J. 123,  128–29 (1952)). We owe no deference to the trial judge's legal conclusions.  Manalapan Realty, L.P. v. Manalapan Twp. Comm.,  140 N.J. 366, 378 (1995)  (citing State v. Brown,  118 N.J. 595, 604 (1990)).        In his merits brief, defendant raises a number of procedural arguments  contending that the municipal judge's rulings on various discovery and trial  issues should result in the reversal of his conviction. We conclude that any  alleged individual or cumulative error in the discovery process did not amount  to an abuse of discretion by the municipal judge, as there is no evidence that  material and exculpatory proofs were withheld or inaccessible to defendant. See  State v. Enright,  416 N.J. Super. 391, 404 (App. Div. 2010) (applying an abuse  of discretion standard to "the trial court's denial of defendant's discovery  requests"). Further, any delay in the identification of Usher as a witness or of  any other evidence was addressed by the municipal judge by way of permitting  a postponement.        Defendant also contends that Abbott's testimony regarding his visual  estimation of defendant's speed was inconsistent with defendant's independent  calculations of his rate of speed based on "distance and time traveled" prior to                                                                           A-3777-18T4                                        6 

the traffic stop. Even if Abbott's visual estimate failed to comport precisely with  defendant's calculations, the record establishes that both the municipal court and  Law Division relied upon Abbott's testimony, which the municipal court deemed  credible, and the radar unit's findings to conclude that defendant exceeded the  speed limit.2        In State v. Wojtkowiak,  174 N.J. Super. 460, 463 (App. Div. 1980), we  set forth the foundation necessary to admit radar readings. The State must  present "(1) the specific training and extent of experience of the officer  operating the radar, (2) the calibration of the machine in which at least two  external tuning forks both single and in combination should be employed, and  (3) the calibration of the speedometer of the patrol car." Ibid. It is clear from  the record that the State satisfied each required element to admit the findings  from Abbott's radar unit to determine that defendant was speeding.        Affirmed.     2   No party has challenged that portion of the Law Division judge's decision that defendant exceeded the speed limit by traveling at fifty-four miles per hour as opposed to fifty-six miles per hour. We accordingly consider any challenge to that finding waived. See N.J. Dep't of Env. Prot. v. Alloway Twp.,  438 N.J. Super. 501, 506 n.2 (App. Div. 2005).                                                                           

No Terry frisk permitted if no reason for police to believe someone armed State v Reyes

No Terry frisk permitted if no reason for police to believe someone armed    SUPERIOR COURT OF NEW JERSEY                                                         APPELLATE DIVISION                                                         DOCKET NO. A-0182-18T2  STATE OF NEW JERSEY,           Plaintiff-Respondent,  v.  WILKINSON A. REYES,       Defendant-Appellant. ________________________                     Submitted January 6, 2020 – Decided March 20, 2020                      Before Judges Vernoia and Susswein.                      On appeal from the Superior Court of New Jersey, Law                     Division, Union County, Indictment No. 17-02-0114  NOT FOR PUBLICATION WITHOUT THE                                APPROVAL OF THE APPELLATE DIVISION         PER CURIAM        Defendant, Wilkinson A. Reyes, appeals from his conviction by guilty  plea to simple possession of heroin, contrary to N.J.S.A. 2C:35-10(a). The sole  issue on appeal is whether the trial court erred when it denied defendant's motion  to suppress controlled substances found on his person. Defendant was arr ested and subjected to a search incident to that arrest after a fold of heroin fell into  view while police were conducting a "Terry"1 frisk for weapons. Defendant  contends the initial stop and ensuing frisk were unlawful.         We have reviewed the record in view of the parties' arguments and  applicable legal principles and conclude that the heroin should have been  suppressed. The police officers were authorized to initiate an investigative  detention based on reasonable suspicion that defendant was involved in criminal activity. However, the State failed to establish that the officers had reasonable  suspicion to believe defendant was armed with a weapon. The protective pat -  down search, therefore, was unlawful.       Because the pat down led to the  discovery of the heroin, that evidence should have been suppressed as a fruit of  the unlawful frisk.     1     Terry v. Ohio,  392 U.S. 1(1968).                                                                           A-0182-18T2                                         2                                          I.        A Union County Grand Jury indicted defendant for possession of heroin, contrary to  N.J.S.A. 2C:35-10(a)(1), and possession of that heroin with intent to  distribute, contrary to  N.J.S.A. 2C:35-5(a)(1), (b)(3). Defendant filed a motion  to suppress arguing that the police did not have a lawful basis to initiate an investigative detention or to conduct a protective frisk for weapons. The trial  judge convened an evidentiary hearing after which he denied defendant's suppression motion in a written opinion.        Thereafter, defendant pled guilty to simple possession of heroin pursuant  to a negotiated agreement in which the State agreed to dismiss the possession -  with-intent-to-distribute charge. Defendant was sentenced in accordance with the plea agreement to noncustodial probation for a period of eighteen months to  be followed by 180 days incarceration in county jail.          The court made  defendant's service of the jail term contingent on his performance on probation.  If defendant performed well on probation, the judge indicated he would vacate  the custodial portion of the sentence.       Defendant appealed the denial of his suppression motion pursuant to Rule  3:5-7(d).                                                                             A-0182-18T2                                         3                                       II.        Defendant raises the following contentions for our consideration:              THERE WAS NO REASONABLE SUSPICION TO             STOP [DEFENDANT], NOR PROBABLE CAUSE TO             CONDUCT THE SUBSEQUENT WARRANTLESS             SEARCH OF HIS PERSON. THEREFORE, THE            EVIDENCE OF THE SEARCH MUST BE             SUPPRESSED.                    A. THE ENCOUNTER WAS AN                   UNLAWFUL INVESTIGATIVE STOP                  NOT     PREDICATED     UPON                   REASONABLE SUSPICION.                    B. WHETHER OR NOT THE POLICE                   HAD REASONABLE SUSPICION TO                   STOP [DEFENDANT], THERE WAS NO                  PROBABLE CAUSE TO JUSTIFY THE                   SEARCH AND NO EXCEPTION TO THE                   REQUIREMENT FOR A WARRANT                   AND/OR PROBABLE CAUSE.                                       III.        The following facts were adduced at the suppression hearing. On October  25, 2016, at approximately 8:45 p.m., two detectives and another officer were  in an unmarked police vehicle on patrol in the area of East Sixth Street in  Plainfield. Detective Stephon Knox testified that the neighborhood was a high-  crime area with frequent drug activity. He noted that "[a] few days prior," there  were "shootings throughout the City of Plainfield."       As a result of those                                                                            A-0182-18T2                                       4 
shootings, officers were on high-visibility patrol and had instructions to  investigate all suspicious behavior.          The officers observed five adult males sitting on the steps in front a building on East Sixth Street. The men appeared to be talking to one another;  they were not drinking or otherwise engaging in disruptive activity. When the  police vehicle approached, one of the males walked away quickly. Although  that caught the officers' attention, they did not pursue the individual who walked  away.         Detective Knox testified that it is common for individuals to sit on other  persons' property to ingest or sell controlled substances.         The detective  acknowledged, however, that in this instance, he did not observe anyone using drugs, nor did he observe any hand-to-hand drug transactions.          The officers drove up to the four remaining males and, while remaining  in the police vehicle, asked them if they lived there. Defendant answered "no"  but told the officers that a female who lives in the building said they could sit  on the steps. Defendant was not able to provide the name of the woman who he claimed had given them permission to be on the property.          The building is a multi-family dwelling with two separate front doors. The officers got out of the police vehicle to investigate whether the males had                                                                            A-0182-18T2                                          5 
permission to be sitting on the front steps. The officers knocked on both doors.  No one answered the door on the left, but a woman answered the door on the right. She stated she did not know the men sitting on the front steps and had not  given them permission to be there.        Now believing that defendant had lied to them, the officers escorted  defendant and the other three males to the police vehicle. Defendant at that  point became "extremely nervous." Detective Knox testified that defendant's  hands were shaking and he started breathing faster. Knox acknowledged that,  from his experience, it is common for people to become nervous around police  even if they have done nothing wrong. Based on defendant's nervousness, the  detective conducted a protective frisk.        As the detective was patting down defendant's outer clothing, he felt a cardboard box. He asked defendant what it was and defendant answered that it  was just cigarettes. The detective did not remove the box from defendant's  pocket.       During the frisk, defendant was leaning on the car. Knox repeatedly asked  defendant to stop doing so. The detective testified that based on his experience,  people who lean on a car during a frisk are trying to hide contraband. The  detective continued the frisk. When he reached defendant's waist area, a small                                                                           A-0182-18T2                                           6 
glassine package, commonly referred to as a "fold," fell to the ground. Knox  testified that the fold had fallen from the front of defendant's jacket. Kn ox  recognized the fold to be heroin. A subsequent search incident to defendant's arrest uncovered two cigarette boxes, one of which contained a paper packet  with glassine folds inside of it.                                        IV.        We begin our analysis by acknowledging general legal principles that govern this appeal. When reviewing a trial court's decision in a motion to  suppress, we defer to the court's factual findings so long as they are "supported  by sufficient credible evidence in the record." State v. Gamble,  218 N.J. 412,  424 (2014) (citing State v. Elders,  192 N.J. 224, 243 (2007)). "By contrast, the  task of appellate courts generally is limited to reviewing issues of law. Because  legal issues do not implicate the fact-finding expertise of the trial courts, appellate courts construe the Constitution, statutes, and common law 'de novo –  "with fresh eyes" . . . .'" State v. S.S.,  229 N.J. 360, 380 (2017) (emphasis  omitted) (quoting State v. Morrison,  227 N.J. 295, 308 (2016)). We need not  defer, in other words, to a trial court judge's interpretive conclusions "unless  persuaded by their reasoning."      Morrison, 227 N.J. at 308(citing State v.  Goodwin,  224 N.J. 102, 110 (2016)).                                                                           A-0182-18T2                                         7                             A. Initial Field Inquiry        When analyzing an alleged Fourth Amendmentviolation and its state  constitutional counterpart, Article 1, Paragraph 7 of the New Jersey  Constitution, we proceed step by step through the sequence of events leading to  the discovery of the challenged evidence. We begin by reviewing the earliest  stages of this police-citizen encounter to determine precisely when the officers first initiated an investigative detention, which requires objective grounds for  suspicion.        We agree with the trial court that the officers acted reasonably when they approached the men on the front steps. As the trial court correctly noted, police  are permitted under the consensual field inquiry doctrine to approach people and  ask questions without any grounds for suspicion, provided those individuals  would reasonably believe that they are free to walk away or ignore police  questions. State v. Pineiro,  181 N.J. 13, 20 (2004) (citing State v. Maryland,   167 N.J. 471, 483 (2001)). In this instance, the officers posed their questions to  defendant in a conversational manner that was "not harassing, overbearing, or accusatory in nature." State v. Nishina,  175 N.J. 502, 510 (2003). The fact that  one of the individuals walked away without repercussion supports the                                                                             A-0182-18T2                                         8 
conclusion that the initial conversation occurred within the bounds of a lawful  field inquiry.        We also agree with the trial court that the officers were permitted to knock  on the front doors of the two residences to investigate defendant's claim that he  and the other individuals had permission to sit on the front steps.         That  investigative technique did not intrude upon defendant's Fourth Amendment  liberty or privacy rights and thus could be undertaken without objective grounds  for suspicion.                        B. Escalation to Investigatory Stop       The field inquiry escalated to an investigative detention, commonly  referred to as a Terry "stop," when police "escorted" defendant and the others to  the nearby police vehicle. See State v. Rosario,  229 N.J. 263, 267 (2017)  (holding that the defendant was subjected to investigative detention, not just a  field inquiry, because "a reasonable person would feel the constraints on her freedom of movement from having become the focus of law enforcement  attention"). There is no indication in the record before us that defendant or the others were afforded the option to refuse the police instruction that they move  from the steps to the police car. Nor would defendant have reasonably believed  at this point that he could simply walk away.                                                                            A-0182-18T2                                         9       At the moment of escalation from field inquiry to investigative detention  the officers needed to have reasonable articulable suspicion to believe defendant  was involved in criminal activity. See Pineiro,  181 N.J. at 20("An investigatory  stop . . . is valid 'if it is based on specific and articulable facts which, taken  together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" (quoting Nishina,  175 N.J. at 510–11)). Stated  in another way, there must be "some objective manifestation that the person  [detained] is, or is about to be engaged in criminal activity." Id. at 22 (alteration in original) (quoting United States v. Cortez,  449 U.S. 411, 417–18 (1981)).        A determination of reasonable suspicion for an investigatory stop is highly fact-sensitive. Nishina,  175 N.J. at 511(citing United States v. Sokolow,  490 U.S. 1, 7 (1989)). We consider the "totality of the circumstances" in assessing  whether police have reasonable, articulable suspicion that criminal activity is  afoot. State v. Davis,  104 N.J. 490, 504 (1986). In this instance, the State presented three circumstances from which to adduce reasonable suspicion to  initiate a stop: (1) the high crime nature of the neighborhood, (2) the detective's experience that it is common in these neighborhoods for drug offenders to sit on  someone else's property, and (3) the apparent lie defendant told police concerning his authority to be sitting on another person's front steps.           To                                                                               A-0182-18T2                                        10 
facilitate our analysis, we address the pertinent suspicion factors separately  before measuring their combined effect. See Nishina,  175 N.J. at 511("Facts  that might seem innocent when viewed in isolation can sustain a finding of  reasonable suspicion when considered in the aggregate, so long as the officer maintains an objectively reasonable belief that the collective circumstances are  consistent with criminal conduct." (citations omitted)).        We first consider the significance of the fact this encounter occurred in a high-crime neighborhood.      Our search and seizure jurisprudence has long recognized that the high crime, high violence nature of a neighborhood is a  relevant circumstance police may take into account in deciding whether to initiate a stop and, thereafter, whether to conduct a protective frisk for weapons.  While this circumstance by itself is not sufficient to justify either a stop or a  frisk, it often is cited as a suspicion factor when combined with other more individualized suspicious circumstances. See, e.g., State v. Bard,  445 N.J.  Super. 145, 157–58 (App. Div. 2016) (relying in part on defendant's presence in  a high-crime area in holding that police possessed a reasonable, articulable suspicion of criminal activity).       In ascertaining the weight police may ascribe to the nature of the  surrounding area in determining whether reasonable suspicion exists, we must                                                                             A-0182-18T2                                        11 
be mindful of the constitutional rights of law-abiding citizens who live, work,  and attend school in high-crime neighborhoods. This circumstance applies to countless New Jersey residents, especially those who live in urban centers.  Reviewing courts applying this suspicion factor to real-world police decisions,  therefore, must guard against treating it as a talisman before which Fourth  Amendment rights are diminished.        The detective's testimony concerning the recent shootings in Plainfield  would not, on its own, justify detaining defendant. While the shootings a "few days" before the police-citizen encounter certainly supported the enhanced  vigilance of the police department, those shootings did not provide sufficient  grounds to stop defendant in the absence of reason to believe he had been  connected to those incidents See State v. Kuhn,  213 N.J. Super. 275, 281 (App.  Div. 1986) (noting that a report of a day-old burglary "does not transform a  residential neighborhood into a no-man's land in which any passerby is fair game  for roving police interrogatories" (quoting In re Tony C.,  582 P.2d 957, 962  (Cal. 1978))).        We turn next to the detective's experience that drug users and sellers in this neighborhood often sit on another person's property to ingest drugs or  engage in illicit drug transactions. The detective's experience with respect to                                                                          A-0182-18T2                                       12 
the common methods of operation and practices of drug offenders is a relevant  circumstance that provides a context in which to interpret defendant's conduct.  See State v. Gibson,  318 N.J. Super. 1, 8 (App. Div. 1999) ("In deciding the  validity of an investigatory stop, the evaluating court must 'give weight to "the officer's knowledge and experience" as well as "rational inferences that could  be drawn from the facts objectively and reasonable viewed in light of the  officer's expertise."'" (quoting State v. Citarella,  154 N.J. 272, 278 (1998))).        Detective Knox acknowledged that he did not observe defendant or the  other men sitting on the steps openly engaging in criminal activity. The police also were not responding to a report that these individuals were committing an  offense. Viewed in isolation, therefore, the detective's experience as to the  common practices of drug offenders in this high-crime neighborhood would be insufficient to justify a stop.       However, the detective's experience takes on added significance when we  consider defendant's statement to the officers that he and the other persons sitting on the front steps had received permission to do so from a woman inside  the house. That brings us to the one suspicion factor relied on by the State that  relates to defendant's own conduct (an individualized suspicion factor), as distinct from the conduct of others (generalized suspicion factors). Defendant's                                                                             A-0182-18T2                                        13 
statement to the officers that he had express permission to sit on the steps of the  building, considered in light of the follow-up investigation and the detective's experience, tips the scale in favor of reasonable suspicion to believe criminal  activity was afoot.        Specifically, the officers' follow-up investigation failed to verify defendant's answer to the simple question posed during the field-inquiry  segment of this encounter.      It was reasonable in these circumstances for  detective Knox to infer that defendant had lied. It is significant, moreover, that  the suspected lie relates to the detective's experience as to the common behavior  of local drug offenders. Viewed through the lens of that experience, it was  reasonable for Detective Knox to infer that defendant lied for the purpose of concealing criminal activity.       We recognize that the officers only spoke to an occupant from one of the  two housing units. It therefore is possible that permission to sit on the steps had been granted by an occupant of the other housing unit. However, the reasonable-  suspicion standard needed to justify an investigative detention is not overly  demanding. See Nishina,  175 N.J. at 511(describing reasonable suspicion as requiring "some minimal level of objective justification" (quoting Sokolow,  290 U.S. at 7)). Certainly, the officers did not have to possess probable cause to                                                                             A-0182-18T2                                        14 
believe defendant had lied to them in order to justify the investigative detention.  Id. at 514 (reiterating that reasonable suspicion, not probable cause, is the  standard for an investigative detention).        Applying the less exacting reasonable suspicion level of proof to the  circumstances presented in this case, we agree with the trial court that the  officers had a reasonable basis to suspect that defendant had lied to them. See  State v. Daniels,  264 N.J. Super. 161, 166 (App. Div. 1993) (recognizing that  lying to police is a relevant factor in determining whether police have reasonable suspicion to believe criminal activity is occurring (citing State v. Lund,  119 N.J.  35, 48 (1990))).        Considering the totality of the suspicious circumstances, we agree with the trial court that the detective had an objectively reasonable basis to believe  that defendant and the other men were engaged or about to be engaged in criminal activity. Accordingly, it was lawful for the officers to direct defendant  and the others to move off the steps and toward the police car where the officers  could continue their investigation pursuant to Terry.                         C. Authority to Frisk for Weapons        We next address whether the officers in this case were permitted to frisk  defendant for weapons. We note that the trial court's written opinion merely                                                                              A-0182-18T2                                        15 
acknowledges that a pat down occurred. It does not address whether the legal  standard for conducting a frisk was satisfied. We therefore review the record de  novo to determine if that standard was met.        The facts that support a lawful stop do not always support a lawful frisk.  See State v. Thomas,  110 N.J. 673, 683–85 (1988) (concluding that although the officer was justified in conducting an investigative detention, the record did not  justify the officer conducting a pat-down search of the defendant); see also State  v. Walker, 282 N.J. Super. 111, 115 (App. Div. 1995) (holding that a  "generalized suspicion" that "something was amiss" during a valid traffic stop  did not provide a reasonable basis for belief that defendant might be armed and dangerous). Rather, the frisk is a separate and distinct Fourth Amendment  intrusion that must be based on an individualized suspicion that the suspect is carrying a concealed weapon. Police are afforded the "automatic authority" to  conduct a frisk only when a stop is based on a suspected offense that involves  violence or weapons. Thomas,  110 N.J. at 680.        In the case before us, as in Thomas, the circumstances that justified the initial stop do not reasonably suggest that defendant was armed. As we have  already noted, although Detective Knox testified there had been shootings at unspecified locations in the City of Plainfield a few days earlier, there is nothing                                                                              A-0182-18T2                                         16 
in the record to link defendant to those incidents. So far as our review of the  record shows, at the moment the field inquiry escalated to an investigative detention, there was no objective basis to believe defendant was carrying a  weapon.        In State v. Garland, we held that if there is no objective basis to believe a suspect is armed and dangerous based on an initial stop, a frisk is not permitted  unless some event occurs between the stop and frisk.  270 N.J. Super. 31, 42  (App. Div. 1994). In this case, an additional suspicion factor did arise after  police escorted defendant to the police car but before they initiated the pat down. Specifically, defendant became "extremely nervous" as evidenced by trembling  hands and rapid breathing. 2 The record shows, moreover, that defendant's  nervousness was a critical factor in the detective's decision to conduct a frisk. Detective Knox testified that he became apprehensive when defendant became  nervous.        Detective Knox acknowledged that, from his experience, it is common for  people to become nervous around police even if they have done nothing wrong.  That acknowledgment does not minimize the significance of defendant's nervous  2    Defendant's nervous reaction occurred only after he was directed to move toward the police vehicle and thus cannot be used to justify the decision to initiate the investigatory stop.                                                                            A-0182-18T2                                        17 
reaction to the investigatory stop. In State v. Stovall,  170 N.J. 346, 367 (2002),  the Supreme Court remarked that while "some individuals become nervous when  questioned by a police officer[,] . . . the fact that such reactions may be commonplace does not detract from the well-established rule that a suspect's  nervousness plays a role in determining whether reasonable suspicion exists."        The timing of defendant's nervous reaction is significant. Defendant did not exhibit indications of extreme nervousness at the outset of the encounter or  when the detective first posed a question to him. Rather, defendant's hands  trembled and he started to breath fast only after police had conducted a follow -  up investigation with the house occupant and after police instructed defendant  and the others to walk towards the police vehicle. We therefore consider it reasonable to infer that defendant's sudden nervousness reflects a consciousness  of guilt and not just general apprehension while around police.       That conclusion does not necessarily mean that such nervousness  automatically constitutes reasonable suspicion that defendant was armed and dangerous. In State v. Carty, the Court held that nervousness is "not sufficient  grounds for the reasonable and articulable suspicion necessary to expand the  scope of a detention beyond the reason for the original stop."  170 N.J. 632, 648                                                                              A-0182-18T2                                        18 
(2002); see also Pineiro,  181 N.J. at 29(noting the suspect's nervousness did not elevate reasonable suspicion to probable cause).        Our decision in Walker is instructive on this point. In that case, the defendant during a motor vehicle encounter with a state trooper "appeared  nervous, spoke very quickly, stuttered, and failed to make eye contact." Walker,   282 N.J. Super. at 113. The defendant and the driver of the stopped vehicle also  gave conflicting answers. Ibid. We concluded on those facts that the trooper did not have a particularized suspicion that the defendant was armed. We  reasoned, "[a]lthough the driver's [nervous] demeanor and the responses that the  driver and defendant gave to the officer's questions may have created a  reasonable suspicion that they were engaged in some form of wrongdoing, such  as being in possession of illegal drugs, they did not provide a reasonable b asis  for a belief that defendant might be armed and dangerous." Id. at 115. Here  too, defendant's nervousness, coupled with his apparent lie, bolsters the suspicion that he was engaged in some form of wrongdoing, such as a drug  offense consistent with Detective Knox's experience with respect to persons who sit on someone else's front steps. Defendant's nervousness, however, does not  reasonably suggest that he was carrying a weapon.                                                                              A-0182-18T2                                       19       Furthermore, in assessing the totality of the circumstances, we take note of the weapons-related suspicion factors recognized in our case law that were  not present in this encounter. See State v. Richards,  351 N.J. Super. 289, 307  (App. Div. 2002) (highlighting suspicion factors not present in that case and  noting "what this record does not show is more persuasive than what it does reveal").        For example, the officers did not observe an unexplained bulge in  defendant's clothing that might have been a weapon. Ibid. Defendant made no threatening or furtive movement such as reaching to his waistband or pocket. 3  Ibid.; see also State v. Privott,  203 N.J. 16, 29–30 (2010) (noting the suspect's movement of one hand toward his waistband—an area commonly used by armed  persons to conceal a weapon—was part of the totality of the circumstances that would lead an officer to have objectively reasonable concern for his or her   3     Defendant's action of leaning against the police vehicle despite being instructed not to do so might be interpreted either as resistance or furtive conduct somewhat analogous to reaching toward a pocket. While less threatening than reaching for a concealed weapon, pressing against the vehicle would make it more difficult for the officer to pat down the front of a suspect's clothing to detect the presence of a weapon. This behavior undermines the protective value of the frisk and thus enhances the danger to officer safety. However, defendant's non-compliance with the detective's instructions occurred after the frisk was initiated. Therefore, defendant's apparent attempt to frustrate the frisk cannot be considered a suspicion factor justifying the pat down.                                                                              A-0182-18T2                                         20 
safety); State v. Bellamy,  260 N.J. Super. 449, 457 (App. Div. 1992) (finding a motorist's movement toward the inside jacket pocket constituted reasonable  suspicion to justify frisk even though it was equally likely that he was merely  reaching for credentials).        Furthermore, the officers did not recognize defendant from prior encounters and had no reason to believe defendant was a member of a violent  street gang. Privott,  203 N.J. at 28(noting that an officer's knowledge that defendant was associated with a violent street gang is a relevant circumstance  supporting a Terry stop and frisk). Nor did the officers have reason to believe  defendant had a criminal record or history of violence or possession of weapons.  C.f. State v. Valentine,  134 N.J. 536, 547 (1994) (deeming an officer's knowledge of the suspect's prior armed robbery offense relevant but not  sufficient on its own to justify a frisk). The officers, moreover, were not responding to a report that defendant was seen in possession of a weapon. C.f.  Florida v. J.L.,  529 U.S. 266(2000) (holding that an anonymous report of a man  with a gun does not per se justify a stop and frisk). Nor were the officers  responding to a recent specific violent or weapons-related crime in the area that  might have been committed by defendant or the other men who had been sitting  on the front steps. As we have already noted, the shootings in Plainfield                                                                           A-0182-18T2                                       21 
occurred several days before this encounter and the officers had no objective  basis to link defendant to those incidents.        We appreciate that reviewing courts should be circumspect in second-  guessing police regarding their concern for safety. Officers on patrol, after all, "must often act on the spur of the moment without the opportunity for abstract  contemplation that . . . judges enjoy." State v. Bynum,  259 N.J. Super. 417,  421–22 (App. Div. 1992).        Nonetheless, on the record before us, we do not believe defendant's nervous reaction, when considered in combination with the suspicion factors  that justified the stop, was sufficient to establish reasonable suspicion to believe  he was carrying a concealed weapon. We therefore are constrained on these  facts to hold that the frisk was unlawful. Because the heroin was found only  after and as a direct result of the unlawful frisk, that evidence must be  suppressed. See State v. Bryant,  227 N.J. 60, 75 (2016) (holding evidence from  an illegal protective sweep must be suppressed as "fruits of the poisonous tree").        The order denying the motion to suppress is reversed and the matter is  remanded. We do not retain jurisdiction.                                                                                A-0182-18T2                                         22 

Monday, April 20, 2020

STATE OF NEW JERSEY VS. DAVID GHIGLIOTTY (17-02-0154, UNION COUNTY AND STATEWIDE) (A-0938-19T3)

In this opinion, the court addresses the novel issue of whether a firearms toolmark identification expert's use of untested three-dimensional (3D) computer imaging technology known as BULLETTRAX, in conjunction with the traditional technique of comparing evidence and test bullets using a comparison microscope, requires that a Frye1 hearing be held to establish the scientific reliability of the BULLETTRAX machine and related software.
Following an evidentiary hearing, the trial court concluded that the State's expert relied upon the BULLETTRAX technology and the images it produced in concluding that a bullet fragment taken from the murder victim likely came from a handgun later seized from defendant. In so ruling, the trial court made extensive factual and credibility findings pertaining to the expert's testimony about his use of the images, and its findings are entitled to deference on appeal.
Under these circumstances, the court holds that a Frye hearing was necessary to demonstrate the reliability of the computer images of the bullets produced by BULLETTRAX before the expert would be permitted to testify at trial.