STATE OF NEW JERSEY V. HANEEF MOLLEY (17-10-0737)

 STATE OF NEW JERSEY V. HANEEF MOLLEY (17-10-0737)

Defendant filed a Motion for Release Due to Illness or Infirmity under Rule 3:21-10(b)(2) and a Motion for a Judicial Furlough under State v. Boone, 262 N.J. Super. 220 (Law Div. 1992). Defendant had asserted that, as an insulin dependent diabetic requiring two injections daily, his continued incarceration had placed him at a very high risk of contracting COVID-19 and suffering extremely serious health consequences, including death. After rejecting the State’s contention that defendant was required to exhaust his administrative remedies prior to filing such motions, the court addressed both motions on the merits.

With respect to the Motion for Release Due to Illness or Infirmity under Rule 3:21-10(b)(2), the court weighed the factors set forth by the New Jersey Supreme Court in State v. Priester, 99 N.J. 123, 135 (1985), for determining whether an inmate should be released. In so doing, the court held that while defendant had proven that he was suffering from an illness, defendant had not presented any evidence that the pandemic was having a "deleterious effect" on his medical condition and did not show that medical services unavailable at the prison would be essential to prevent further deterioration of his health. Similarly, while the pandemic constituted a change in circumstances, the Department of Corrections had taken efforts to mitigate and protect against the spread of the disease and defendant failed to present any evidence that COVID-19 was causing a "serious deterioration" to his health. Lastly, due to defendant’s extensive prior record and the serious nature of the charge for which defendant was incarcerated, defendant’s release would not be in the best interests of public safety and welfare. Thus, the motion under Rule 3:21-10(b)(2) was denied.

With regard to the Motion for a Judicial Furlough under Boone, the court noted that the defendant in Boone required lifesaving treatment out-of-state and there was no statutory or rule-based authority for granting such relief. As such, the trial court in Boone exercised its inherent authority to grant a judicial furlough to save the defendant’s life. Here, the court found that there was explicit statutory authority, vested in the Commissioner of the Department of Corrections and his agents, through which defendant could seek a furlough. See N.J.S.A. 30:4-91.3. Since defendant had statutory authority by which to seek a furlough, the court found it had no authority to grant a judicial furlough and denied the motion.

State v Gonzalez DWI affirmed where driver slumped behind wheel

State v Gonzalez DWI affirmed where driver slumped behind wheel Defendant appealed his DWI conviction and sentence. Witness reported car was stopped at a light, did not move when light changed and driver appeared to be slumped over the wheel. Officers found defendant asleep in the driver's seat, car was in gear and defendant had his foot on the brake. Officers managed to wake defendant up and the car lurched forward, almost striking officer. Officers detected a strong odor of alcohol, noticed defendant had a flushed face and watery eyes and video showed him swaying as he exited the vehicle. Defendant alleged a leg injury prevented him from performing some of the field sobriety tests and he failed to follow the instructions for the "alphabet test." Officers administered an Alcotest breath test at the police station following defendant's arrest. Municipal court denied defendant's motion to suppress the Alcotest results and found defendant guilty. Law Division rejected defendant's claim that police did not have probable cause to arrest him. Court agreed there was probable cause to arrest defendant and to convict him based on witness's observations alone, Alcotest was properly administered and he was not entitled to be sentenced under the amendment. Source https://www.law.com/njlawjournal/almI...

State v Lindsey Unreported

Engine on and defendant peeing nearby sufficient for operation DWI State v. Lindsey Unreported. Defendant appealed his convictions for driving while intoxicated, N.J.S.A. 39:4-50, refusal to submit to a chemical breath test, N.J.S.A. 39:4-50.4a, and violating implied consent to a chemical breath test, N.J.S.A. 39:4-50.2. Early one morning, after 2 a.m., two troopers saw defendant standing outside a vehicle with flashing lights on, parked on the side of a highway, adjusting his pants. When the troopers activated their vehicle's emergency lights, defendant raised his hands and then walked back to enter into his vehicle. Neither trooper observed defendant driving his vehicle. One trooper testified that defendant's engine and headlights were on and no one was with defendant. Defendant told the troopers he had a drink hours earlier and pulled over in order to urinate. The troopers administered the standard field sobriety test then arrested defendant. The judge heard testimony from the troopers and convicted defendant. On appeal, the court affirmed the lower court's decision. Defendant argued there was insufficient evidence to support the convictions. The court noted that while the troopers did not observe defendant operating the vehicle, he clearly had the intent to reenter and operate the vehicle when the troopers happened upon him. The testimony of the troopers also supported the finding that defendant was intoxicated at the time he was arrested. Source NJLJ Daily Briefing 2/23/21 Daily Briefing, an exclusive New Jersey State Bar Association member benefit, in partnership with the New Jersey Law Journal. Join the NJSBA for this benefit!

State v Carrillo Second patdown permitted where belief armed

Second patdown permitted where belief armed State v Carrillo (A-4889-18) The main issue in this appeal from the trial court's denial of defendant's suppression motion without a testimonial hearing is whether the officer violated defendant's rights when he patted him down a second time, just minutes after the officer patted him down the first time and uncovered no weapons. The court concludes that an officer may conduct a second pat-down when, giving weight to the unproductive first one, the circumstances preceding the second one still give the officer reason to believe the suspect is armed and dangerous. Because there exist issues of fact material to that question, the court reverses the trial court's order and remands for a testimonial hearing.

State v Cassidy update

Cassidy cases require a PCR petition online REVIEW OF DWI CONVICTIONS INVOLVING NOT PROPERLY CALIBRATED EQUIPMENT (STATE V. CASSIDY)- WEBSITE TO FACILITATE SUBMISSION OF REQUESTS TO REVIEW A DWI CONVICTION The Supreme Court in State v. Cassidy 235 NJ. 482 (2018) found that in some driving while intoxicated (DWI) cases, some Alcotest machines were not properly calibrated and that the test results from those machines thus could not be used to convict a defendant of DWI. The Judiciary was notified by the Office of the Attorney General that there were thousands of DWI cases in which defendants' breath samples were procured using such improperly calibrated machines. As a result, more than 13,000 DWI convictions from between 2008 and 2016 are eligible for review, with most of those cases in four counties (Middlesex, Monmouth, Somerset, Union). This is to advise that the Judiciary has created a webpage to facilitate the submission of post-conviction petitions for relief by any defendant affected by the Court's Cassidy decision (https://www.njcourts.gov/courts/mcs/c...). On July 14, 2021, Superior Court Judge Robert A. Fall, serving on recall and designated by the Court as special master for the statewide management of these cases, sent a notice to those 13,000+ defendants potentially affected by the Cassidy decision. That notice advised defendants how to file a petition for review of their case and, if needed ,how to request appointment of a public defender. The forms for those steps are available on the website. Initial case management conferences in those matters will begin in August.

State v Ehrman Member of LLC can’t be charged with ordinance violation

Member of LLC can’t be charged with ordinance violation State v Ehrman Defendant challenged numerous complaint-summonses issued in municipal court by the Jersey City Department of Housing, Economic Development and Commerce for municipal violations involving rental properties owned by various limited liability companies (LLCs) of which defendant was a member. In one appeal, defendant challenged an interlocutory order denying his motion to dismiss twenty-five complaint-summonses issued to him individually and granting the State's cross-motion to amend the complaints to name the LLC that was the record owner instead of him. In the other appeal, defendant challenged the order finding the LLC that was the record owner of the property guilty of violating a municipal ordinance following a trial de novo in the Law Division notwithstanding the fact that the LLC made no appearance through counsel and neither the municipal court nor the trial court inquired on the record to ascertain whether there was a knowing and voluntary waiver before proceeding with the trial. The court reversed and remanded for entry of an order of dismissal without prejudice of the twenty-five complaint-summonses because they were issued to the wrong defendant and therefore fatally defective and both the municipal court and trial court erroneously relied on a Part IV rule governing civil practice to grant the State's cross-motion to amend. The court also reversed the finding of guilt of the LLC and remanded for a new trial because the absence of an appearance through counsel or a clear waiver of such in a quasi-criminal municipal court prosecution constitutes a violation of constitutional dimension requiring reversal. (A-4144-19/A-4447-19

State v Carter Complete covering of Garden State on plate permitted stop

Complete covering of Garden State on plate permitted stop State v. Carter To avoid serious constitutional concerns, the Court interprets the statute narrowly and holds that N.J.S.A. 39:3-33 requires that all markings on a license plate be legible or identifiable. If a frame conceals or obscures a marking in a way that it cannot reasonably be identified or discerned, the driver would be in violation of the law. In practice, if a registration letter or number is not legible, the statute would apply; but if a phrase like "Garden State" is partly covered but still recognizable, there would be no violation. In Carter’s case, however, it is undisputed that “Garden State” was entirely covered. As a result, the plate violated the statute, and law enforcement officers had the right to stop Carter. A-66-19

State v Roman Rosado Partially Obstructed License Plate Does Not Justif...

Partially Obstructed License Plate Does Not Justify Car stop State v. Roman-Rosado NJ Supreme To avoid serious constitutional concerns, the Court interprets the statute narrowly and holds that N.J.S.A. 39:3-33 requires that all markings on a license plate be legible or identifiable. If a frame conceals or obscures a marking in a way that it cannot reasonably be identified or discerned, the driver would be in violation of the law. In practice, if a registration letter or number is not legible, the statute would apply; but if a phrase like "Garden State" is partly covered but still recognizable, there would be no violation. A-67-19

State v Pickett defendant can have scientific evidence such as machine s...

In new science such as DNA, defendant can have scientific evidence such as machine software source code. State v Pickett 466 N.J. Super. 270 (App. Div. 2021) In this case of first impression addressing the proliferation of forensic evidentiary technology in criminal prosecutions, this appeal required the Appellate court to determine whether defendant is entitled to trade secrets of a private company for the sole purpose of challenging, at a Frye hearing, the reliability of science underlying novel DNA analysis software and expert testimony. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). At the hearing, the State produced an expert who relied on his company's complex probabilistic genotyping software program to testify that defendant's DNA was present, thereby connecting defendant to a murder and other crimes. So long as the State utilized the expert, this court held that defendant is entitled to the discovery of the software's proprietary source code and related documentation under a protective order.

State v Boston Car Passenger can’t be asked demanded for ID

Car Passenger can’t be asked demanded for ID State v Boston (A-4752-17) In State v Boston, the court just decided that when the driver is arrested it is reasonable to ask the passenger for his license, but not for further ID when he fails to produce a license. Defendant Dwayne D. Boston was convicted of third-degree possession of cocaine following a routine traffic stop on his way home from the movies with his wife and children. He contends the police unlawfully asked him, a front-seat passenger in his wife's car, to hand over his State identification card after he told them he did not have a driver's license. The court agrees, and concludes defendant's subsequent arrest on an open traffic warrant was unlawful, and the drugs seized in the ensuing search incident to his arrest should have been excluded at trial. The court holds in a routine traffic stop where the driver has to be arrested on an open traffic warrant, the officer's asking whether a passenger is a licensed driver is reasonable; but when the passenger claims he does not possess a license, the officer's further demand for identification from the unlicensed passenger in the absence of particularized suspicion is not.

State v Nyema Mere report of black males robbing 7-11 not sufficient to ...

Mere report of black males robbing 7-11 not sufficient to stop car with black males in it State v Nyema 465 N.J. Super. 181 (App. Div. 2020) The police received a dispatch transmission that a 7-Eleven store had been robbed by two black males, one of whom had a gun. A subsequent dispatch indicated the two men fled on foot. The police officer was familiar with the 7-Eleven store and responded. Police officers seized the evidence following an investigatory stop of an automobile in which defendant was a passenger. The arresting officer testified he stopped the car because he was advised two black men had robbed a store. The officer used a spotlight mounted to his car to illuminate the interiors of passing vehicles as he traveled to the store. In one car, he observed three black men who did not react to the light. The officer stopped the car based on those observations. Following the denial of his motion to suppress physical evidence, defendant pled guilty to first-degree robbery, N.J.S.A. 2C:15-1 The court held that knowledge of the race and gender of criminal suspects, without more, does not establish a reasonable articulable suspicion that the men in the car had robbed the store. Accordingly, the court reverses defendant's conviction, vacates his sentence, and remands for further proceedings. A-0891-18T4

State v Sims The failure of police to advise the defendant of the charge...

The failure of police to advise the defendant of the charges against him will result in a suppression of his statement despite Miranda State v Sims 466 N.J. Super. 346 (N.J. Super. 2021) Having considered defendant's contentions in light of the record and the applicable principles of law, the court reverses the denial of his motion to suppress his statement because defendant was not properly advised of the status of the charges against him prior to his interrogation. In this appeal, the court determined as a matter of first impression that the Supreme Court's holdings in State v. A.G.D., 178 N.J. 56 (2003), and in State v. Vincenty 237 N.J. 122 (2019), requiring that police inform a defendant subject to custodial interrogation of specific charges filed against him before he can waive his in Miranda rights, also applies to an interrogee who was arrested and questioned prior to any charges being filed, where the arrest was based upon information developed through an earlier police investigation.

DWI can be asleep with engine running State v. Speranza

 DWI can be asleep with engine running 

State v. Speranza, Appellate Division, Per Curiam. Defendant appealed from his DWI conviction. Defendant's conviction stemmed from an incident in which police responded to a report of an unconscious male in a vehicle at an intersection. The responding officer found defendant asleep in the driver's seat of his car, which was sitting at an intersection with the engine running. 

       The officer was unable to rouse defendant, forcing him and other responding officers to drag defendant out of his vehicle. Defendant eventually came to, telling the officers that he had come from a friend's house but did not know where he was. The parties stipulated that defendant was intoxicated when police found him. The municipal court accordingly convicted defendant, finding that he was "operating" his car within the meaning of the DWI statute. 

      Defendant appealed to the trial court, which conducted a trial de novo in which it rejected defendant's argument that he did not "operate" his car. The trial court held that defendant intended to operate his vehicle because he was sitting in the driver's seat with the engine running. 

      On appeal, the court affirmed defendant's conviction, ruling that a vehicle did not need to be seen in motion to trigger liability under the DWI statute. Instead, it was enough that a defendant had the possibility to move their vehicle by sitting in the car with the engine running. Daily Briefing - 09-23-21NOT APPROVED FOR PUBLICATION

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
VINCENT M. SPERANZA,

Defendant-Appellant. _________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-4456-19

Submitted September 16, 2021 – Decided September 22, 2021

Before Judges Haas and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 10-02- 020.

Maitlin Maitlin Goodgold Brass & Bennett, attorneys for appellant (Scott A. Gorman, of counsel and on the briefs).

Mark Musella, Bergen County Prosecutor, attorney for respondent (Edward F. Ray, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Vincent M. Speranza appeals his conviction for driving while intoxicated (DWI). N.J.S.A. 39:4-50(a). We affirm.

Before the municipal court trial began, the parties stipulated to the following facts. "During the late evening of . . . June 24, 2019," a citizen called the police to report there was "an unconscious male in a vehicle" at an intersection. When Officer James Bakelaar responded to the scene, he found defendant asleep in the driver's seat of his car that was parked with the engine running in the street at the intersection. Even though the officer shook defendant, yelled at him, and opened his eyelids, he was unable to "rouse" defendant.

By this time, Officer William Plisich had arrived at the intersection to assist Bakelaar. Together, the two officers "dragged" defendant from the car after opening his unlocked car door. Defendant then woke up. Defendant stated "that he had come from a friend's house, but he did not know where he was." Defendant did not tell the officers his friend's name and did not disclose where his friend lived. The officers learned that defendant lived about a mile away from the intersection.

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The parties further stipulated that defendant was intoxicated at the time Bakelaar found him in the car. In addition, the parties agreed "that with the exception of operation of a motor vehicle[,] all of the elements of a per se violation and a violation of being under the influence of intoxicating liquor, contrary to N.J.S.A. 39:4-50(a), have been established."

Based upon these undisputed facts, the municipal court judge found that the State proved beyond a reasonable doubt that defendant "operated" his car while intoxicated in violation of N.J.S.A. 39:4-50(a). The judge sentenced defendant as a second-time DWI offender to forty-eight hours in the Intoxicated Driver Resource Center in lieu of jail and thirty days of community service. The judge also suspended defendant's driver's license for two years, required him to install an interlock device on his car and maintain it for a period of three years, and ordered him to pay appropriate monetary fines and penalties.

Defendant appealed his conviction to the Law Division, which conducted a de novo trial. On July 10, 2020, the judge rendered a written decision also rejecting defendant's contention that he did not "operate" his car within the intendment of N.J.S.A. 39:4-50(a). The judge found that defendant, while intoxicated, sat behind the wheel of his car with the engine on and intended to operate it. He therefore concluded that defendant was guilty of DWI. The Law

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Division judge imposed the same sentence as the municipal court judge. This appeal followed. On appeal, defendant raises the following contention:

I. THE LOWER COURT ERRED BY FINDING DEFENDANT GUILTY OF DWI BECAUSE HE DID NOT PLACE HIS CAR INTO MOTION AND HE DID NOT POSSESS THE PRESENT INTENT TO DO SO WHEN HE WAS UNCONSCIOUS OR ASLEEP IN A PARKED CAR.

On appeal from a municipal court, the Law Division's review is de novo. R. 3:23-8(a)(2). The Law Division makes independent findings of fact and conclusions of law but defers to the municipal court's credibility findings where applicable. State v. Robertson, 228 N.J. 138, 147 (2017).

On a subsequent appeal from the Law Division to this court, our review of the Law Division's factual findings is limited to whether the conclusions "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). "Therefore, appellate review of the factual and credibility findings of the municipal court and the Law Division 'is exceedingly narrow.'" State v. Reece, 222 N.J. 154, 167 (2015) (quoting Locurto, 157 N.J. at 470). However, the Law Division's "interpretation of the law and the legal consequences that

     

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flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). This appeal turns on whether the record supported the Law Division's determination that defendant operated his car within the meaning of N.J.S.A. 39:4-50(a). This statute states that "[a] person who operates a motor vehicle while under the influence of intoxicating liquor . . . or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood" is guilty of DWI. Ibid. We broadly interpret the term "operates" to include more than driving. See State v. Tischio, 107 N.J. 504, 513 (1987); State v. Mulcahy, 107 N.J. 467, 478-79 (1987). Operation may be established by a variety of circumstances, including "actual observation of the defendant driving while intoxicated," "observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated," or the defendant's admission. State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005). Furthermore, "[o]peration may be proved by any direct or circumstantial evidence – as long as it is competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App.

    

Div. 1992) (citing State v. Dancyger, 29 N.J. 76, 84 (1959)).

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We recently sustained a DWI conviction against an intoxicated defendant who was found sleeping in his car with the engine running while parked in a convenience store parking lot. State v. Thompson, 462 N.J. Super. 370, 373-75 (App. Div. 2020), certif. denied, 246 N.J. 214 (2021). Under those circumstances, we concluded "[t]here is no doubt that an intoxicated . . . defendant behind the wheel of a motor vehicle with the engine running is operating the vehicle within the meaning of N.J.S.A. 39:4-50(a), even if the vehicle was not observed in motion; it is 'the possibility of motion' that is relevant." Id. at 375 (quoting State v. Stiene, 203 N.J. Super. 275, 279 (App. Div. 1985)).

Based on these principles and our review of the record, we are satisfied the Law Division reasonably found defendant guilty of DWI on sufficient, credible evidence in the record. Late at night, the police found defendant behind the wheel of his car on the street near an intersection. The car was running. When the officers roused defendant, he told them that he "had come from a friend's house" and they later learned that his own home was about a mile away. Although no one observed defendant drive, the location of the car in the street with the motor running, coupled with defendant's admission that he "had come

  

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from a friend's house," provided ample evidence of defendant's operation of the car. Thompson, 462 N.J. Super. at 375.

In so ruling, we reject defendant's contention that a different result is required by the Supreme Court's decision in State v. Daly, 64 N.J. 122 (1973). As the Law Division judge found, Daly is fully distinguishable from the case at hand. In Daly, the Court found that the State failed to prove that the defendant intended to move the motor vehicle where he had been found sleeping in the parking lot of tavern. Id. at 124-25. In that case, the defendant credibly testified that he got into his car after leaving the tavern in order to sleep, reclined the seat, and turned on the motor to keep warm. Id. at 124. Based upon these facts, the Court held that operation could not be inferred beyond a reasonable doubt as the defendant had not demonstrated an intent to drive. Id. at 125.

Here, on the other hand, defendant was found behind the wheel of a running car in the street near an intersection somewhere between his home and "a friend's house." Thus, the inference that he had been driving the car and intended to drive it was inescapable.

Therefore, we discern no basis to disturb the Law Division judge's determination that defendant was guilty of DWI beyond a reasonable doubt.

 

Affirmed.

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Suppression motion granted where no consent to search room State v. Phillips

 Suppression motion granted where no consent to search room

State v. Phillips

 

State appealed trial court's grant of defendant's motion to suppress evidence. Defendant moved to suppress evidence seized from his hotel room. State argued the seizure was authorized under the plain view and exigent circumstances exceptions to the warrant requirement. 

      Officer saw a marijuana cigarette and entered room to arrest defendant for a disorderly persons offense. 

      Trial court made specific findings as to each factor it had been ordered to consider by appellate court and concluded no exigent circumstances existed because police could have arrested defendant at the doorway and there was no reason for them to enter the room. 

Appeal Court found trial court's latest determination was legally correct.

https://www.law.com/njlawjournal/almID/1623784004NJA147220/

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. 

STATE OF NEW JERSEY, Plaintiff-Appellant, 

v.
RASHEED M. PHILLIPS, 

Defendant-Respondent. _________________________ 

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-1472-20 

Argued June 1, 2021 – Decided June 15, 2021 

Before Judges Rothstadt and Susswein. 

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 18-01-0074. 

John J. Santoliquido, Assistant Prosecutor, argued the cause for appellant (Damon G. Tyner, Atlantic County Prosecutor, attorney; John J. Santoliquido, of counsel and on the brief). 

Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Tamar Y. Lerer, of counsel and on the brief). 

PER CURIAM 

This matter returns to us for the third time after two prior remands relating to the trial court's decision on defendant's motion to suppress evidence. See State v. Phillips, Docket No. A-3953-18 (App. Div. Nov. 18, 2019) (Phillips I); State v. Phillips, Docket No. A-3939-19 (App. Div. Nov. 13, 2020) (Phillips II). The matter is again before us after we granted the State's latest motion for leave to appeal from the trial court's granting of defendant's motion to suppress. The trial court considered the matter on the record on December 14, 2020 before entering its order on December 21, 2020 suppressing the evidence seized from defendant's hotel room as more particularly described in our earlier opinions. See Phillips I, slip op. at 3-5; Phillips II, slip op. at 3-4. 

On appeal, the State argues that contrary to the trial court's conclusion, the seizure of the suppressed evidence was "authorized under the plain view and exigent circumstance exceptions to the warrant requirement." We disagree. 

At the December 14, 2020 remand hearing, the trial court placed on the record the entire history of the matter including its understanding of our earlier decisions. The court then recounted the testimony from the suppression hearing and analyzed whether exigent circumstances existed at the time of the incident that would warrant police officers' entry into the room where defendant had been staying. Thereafter, it made specific findings as to each of the factors we 

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directed should be considered as set forth in our last opinion. See Phillips II, slip op. at 8. After placing its findings as to each factor on the record, the court concluded that there were no exigent circumstances because the police "could have arrested [defendant] at the doorway, in the hallway. There was no reason for them to enter that room, and . . . the State has not proven by a preponderance of the evidenced that there were exigent circumstances." This appeal followed. 

Accepting as we must the trial court's factual findings that are supported by sufficient credible evidence, and applying our de novo standard of review to the trial court's legal conclusions, see State v. Harris, 457 N.J. Super. 34, 43-44 (App. Div. 2018), we conclude that the trial court's latest determination was legally correct, substantially for the reasons stated by the trial court in its oral decision of December 14, 2020. We only add that it was the State's burden to establish that it was reasonably necessary to enter defendant's room based on exigent circumstances rather then bring him into the hallway in order to effectuate his arrest for a disorderly persons offense1 and it failed to do so 

1 As we previously recounted, defendant was arrested because a police officer who was standing in the hallway saw a marijuana cigarette on defendant's bed when defendant opened his door. After the officer entered the room to arrest defendant, he saw additional suspected controlled dangerous substances that were seized and provided the basis for the more serious charges brought against defendant. See Phillips I, slip op. at 4-5. 

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because, as the trial court found, there simply were no exigencies under the totality of the circumstances presented in this case. 

Affirmed. 

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STATE OF NEW JERSEY VS. COUNTY OF OCEAN (L-0527-20, OCEAN COUNTY AND STATEWIDE) (A-3665-19)

 STATE OF NEW JERSEY VS. COUNTY OF OCEAN (L-0527-20, OCEAN COUNTY AND STATEWIDE) (A-3665-19)

An Ocean County Prosecutor's Office (OCPO) detective was operating a county vehicle while performing official duties when she struck another vehicle injuring a passenger. After the passenger sued the OCPO and the detective for personal injuries, the State agreed to defend and indemnify both defendants. However, the State asserted that pursuant to N.J.S.A. 59:10A-5 it could avail itself of the County's self-insurance and excess insurance policies mandated by N.J.S.A. 40A:10-3 as the primary sources to satisfy any judgment or settlement in the tort case. The State sued the County seeking a declaratory judgment to this effect. The trial court dismissed the complaint.

On appeal, the court affirmed and held that N.J.S.A. 59:10A-5 grants the Attorney General the ability to direct who shall take up the defense on behalf of the State. However, pursuant to Wright v. State, 169 N.J. 422 (2001), where an employee is entitled to a defense by the State, the State shall also bear the costs of indemnification. N.J.S.A. 59:10A-5 does not alter the State's obligation to defend and indemnify utilizing its resources.

STATE OF NEW JERSEY VS. JOELLE D. CARONNA STATE OF NEW JERSEY VS. FREDDY COLLADO (20-02-0221, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-0580-20/A-0581-20)

 STATE OF NEW JERSEY VS. JOELLE D. CARONNA STATE OF NEW JERSEY VS. FREDDY COLLADO (20-02-0221, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-0580-20/A-0581-20)

This court held that the exclusionary rule applies where police violate Article I, Paragraph 7 of the New Jersey Constitution by unreasonably and unjustifiably ignoring a search warrant requirement that they knock and announce their presence before entering a dwelling. Doing so deters police from flagrantly violating knock-and-announce search warrant requirements; safeguards against unconstitutional, unreasonable, and illegal search and seizures under New Jersey law; and, importantly, upholds the rule of law and integrity of our administration of justice.

STATE OF NEW JERSEY VS. ANTHONY SCUDIERI (20-004, MONMOUTH COUNTY AND STATEWIDE) (A-0352-20)

 STATE OF NEW JERSEY VS. ANTHONY SCUDIERI (20-004, MONMOUTH COUNTY AND STATEWIDE) (A-0352-20)

In this appeal, the court held that the Legislature intended prospective application of the amended refusal statute, N.J.S.A. 39:4-50.4a. That intent was manifested by the Legislature's express statement that the amended legislation—which imposed on all defendants convicted of refusal the less onerous penalty of installing an interlock device rather than forfeiting his or her license as mandated by the former statute—would become effective on December 1, 2019, over four months after it was signed into law, and apply only to those defendants who committed an offense on or after that date. That unequivocal legislation pronouncement militates against retroactive application even for defendants who were sentenced after December 1, 2019.

In such circumstances, courts need not consider the common law exceptions to the presumption of prospective application as discussed in Gibbons v. Gibbons, 86 N.J. 515 (1981) and James v. New Jersey Manufacturers Ins. Co., 216 N.J. 552 (2014), nor the timing of the penalty incurred under the general savings statute, N.J.S.A. 1:1–15. The Legislature's determination that interlock devices serve as a greater deterrent than license forfeiture supports the conclusion that the amended legislation was neither ameliorative nor curative, in any event.

State v. Lowy Defendants statement in ambulance admissible

State v. Lowy Defendants statement in ambulance admissible

Defendant appealed his conviction for reckless manslaughter. Elderly defendant went to park to feed pigeons even though he knew it was forbidden. Elderly victim thought feeding birds was unsanitary. Dog walker saw two elderly men fighting in the park, heard victim scream "He's got a knife" and called 911. Jogger saw two men wrestling, victim asked for help saying, "This guy's got a knife" and saw victim holding defendant down on the ground. Jogger told defendant to put the knife down and victim released defendant who left the park. 

Defendant was arrested, complained of pain and was taken to hospital. Defendant argued admission of statements he made while he was in the ambulance and at the hospital violated his Fifth Amendment rights. Court noted defendant received Miranda warnings, invoked his right to counsel and later was taken to hospital. 

Court found defendant voluntarily spoke to officers in the ambulance and at the hospital, his statements were unprompted and unprovoked by the officers and were also admissible as statements by a party opponent. Medical examiner's testimony that defendant and victim were facing each other at the time of the stabbing was proper. Prosecutor's statements during summation did not rise to a level of egregiousness capable of rendering the trial unfair and trial judge properly included a flight charge. source

https://www.law.com/njlawjournal/almID/1613506213NJA089819/

• Judge: Per Curiam 
• Case Number: A-0898-19

 

STATE OF NEW JERSEY V. KYLE POWELL (19-10-02086)

 STATE OF NEW JERSEY V. KYLE POWELL (19-10-02086)

The court denied defendant’s motion to dismiss the indictment, in which he was charged with bias intimidation, among other crimes, pursuant to N.J.S.A. 2C:16-1(a)(2). Defendant admitted to sending messages via MeetMe.com to the victim threatening to harm her biracial daughter, in which he referred to the child as a "mutt" and "mongrel" and referred to the victim as a "spic loving whore." Defendant asserted that the grand jury was not presented with any evidence demonstrating that defendant directed the threats at the victim and her daughter based on racial motivation. The messages were in reference to the daughter’s race and not the victim’s who was the recipient of the threats. The State argued that the grand jury was presented with testimony that defendant stated he disliked interracial relationships and children of those relationships.

The court denied defendant’s motion, holding that, by defendant’s own admission, the threats were motivated by the victim’s identity as a white female who engaged in a biracial relationship with a Hispanic male and bore a biracial daughter. Additionally, the court reasoned that the victim’s biracial daughter was also a foreseeable third-party victim of the threats even though she was not the recipient. As the standard for upholding an indictment weighs heavily in favor of the State, here defendant’s admissions satisfied the requisite evidence needed to demonstrate racial motivation for N.J.S.A. 2C:16-1(a)(2).