STATE OF NEW JERSEY VS. KARL SMITH (18-01-0178,

 STATE OF NEW JERSEY VS. KARL SMITH (18-01-0178, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-5557-17)

Defendant was charged with sexual crimes committed against two child victims, one of whom was his daughter and the other the daughter of defendant's girlfriend. The judge denied defendant's motion for severance, accepting the State's proffer that joinder was permitted under Rule 3:7-6, because evidence regarding both victims would be admissible pursuant to Rule 404(b) if the two sets of crimes were tried separately. See State v. Chenique-Puey, 145 N.J. 334, 341 (1996) ("If the evidence would be admissible at both trials, then the trial court may consolidate the charges because 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.'" (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div. 1983)). The court reversed, concluding the judge misapplied Rule 404(b) in denying the severance motion.

The court also questioned the continued vitality of the Chenique-Puey analytic paradigm, noting that unlike situations where the State seeks to introduce evidence of uncharged crimes at trial, and must meet Cofield's rigorous four-prong test at a N.J.R.E. 104 hearing, a defendant's severance motion in these circumstances is most often decided solely on the State's proffer. In this case, the State's proffer in opposition to defendant's motion misstated some evidence and included evidence never adduced, or even admissible, at trial.

The court also traced some historical background regarding Rule 3:7-6, proposed revisions to the Rule never adopted by our Supreme Court, and case law interpreting the Rule in the context of severance motions.

STATE OF NEW JERSEY VS. STEVE COTTO (16-12-3213,

 STATE OF NEW JERSEY VS. STEVE COTTO (16-12-3213, ESSEX COUNTY AND STATEWIDE) (A-4063-18)

The court in this case interprets and applies the New Jersey Supreme Court's recent decision in State v. Sims, __ N.J. __ (2022). Defendant appeals from his jury trial conviction for aggravated arson. During police investigation of a nightclub fire, detectives determined that defendant was a suspect. After discovering that he had open traffic warrants, the detectives arrested him on authority of those warrants even though their true purpose was to question him about the nightclub fire. After defendant waived his Miranda1 rights and before posing any substantive questions, the detectives informed him they wanted to talk about the nightclub, not the traffic warrants. Defendant contends that his incriminating statements should have been suppressed because the interrogating detectives did not inform him during the Miranda waiver colloquy that he would be charged with aggravated arson.

In Sims, the majority re-affirmed that, when administering Miranda warnings, police are not required to advise an interrogee that he or she is suspected of committing a particular crime not yet charged by an arrest or complaint-warrant. The court highlights that while the majority in Sims rejected any such per se suspect-notification rule, it expressly retained the principle that the failure by police interrogators to disclose a defendant's suspect status can be a relevant factor as part of the totality of the circumstances. The court stresses, moreover, that the totality-of-the-circumstances analytical paradigm is rigorous because under New Jersey law, the State bears the burden of proving that a defendant knowingly, intelligently, and voluntarily waived his or her Fifth Amendment rights beyond a reasonable doubt. The court explains that it is the formidable proof-beyond-a-reasonable doubt standard, rather than a bright-line suspect notification requirement, that safeguards the Fifth Amendment rights of interrogees who have not been formally charged with the crime that is the subject-matter of the custodial interrogation.

The court also reaffirms that in applying the totality-of-the-circumstances test, it has little tolerance for police interrogation tactics that affirmatively mislead an interrogee as to the seriousness of the crime that is the subject-matter of the interrogation. In this case, the court agrees with the trial court's finding that defendant was "[b]y no means . . . misled or unaware of the nature of the questions." The court thus concludes that the State proved beyond a reasonable doubt that defendant knowingly, intelligently, and voluntarily waived his Fifth Amendment rights.

The court addresses concerns raised by the dissenting justices in Sims that individuals should not be taken from their homes or off the street without being told the reason for their arrest and should not be detained for hours without explanation. Sims, __ N.J. __ (slip op. at 1) (Albin, J., dissenting). The court notes that, in this case, defendant was immediately told the reason for his arrest —the open traffic warrants—and thereafter was quickly informed as to the true reason why the detectives wanted to question him.

The court rejects defendant's contention that the trial court abused its discretion by allowing the lead investigating detective to testify as both a fact witness and as an arson expert. The court concludes that the trial court took reasonable precautions to clearly delineate for the jury the detective's role as a fact witness and his role as an arson expert.

The court also concludes that the trial judge did not commit plain error by allowing the jury to watch a recording of the stationhouse interrogation in which the detectives repeatedly accused defendant of being the arsonist shown in a surveillance video. The court declines to apply the "invited error" doctrine, rejecting the State's argument that defendant is precluded from raising this issue on appeal because he did not object to the jury viewing this portion of the interrogation recording even as he sought to redact of other portions of the recording. Instead, the court applies the plain error standard of review. The court determines that the trial judge should have issued a limiting instruction explaining to the jury that the accusatory statements made by the detectives during the interrogation is not testimony and could only be considered in the context of understanding how the interrogation was conducted and how defendant responded to those accusations. Ultimately, however, the court concludes that any error in failing to instruct the jury does not rise to the level of plain error considering the strong evidence of guilt. The court also reasons that defendant did not suffer unfair prejudice by the jury hearing the detectives' accusatory remarks because it appears that defense counsel had made a strategic decision not to object as shown by counsel's argument in summation that the detectives were "overzealous" and were so convinced of defendant's guilt that they stopped looking for the true culprit.

STATE OF NEW JERSEY VS. C.J.L. (19-07-1053,

 STATE OF NEW JERSEY VS. C.J.L. (19-07-1053, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1052-21)

Defendant's bedroom was searched pursuant to a warrant after law enforcement received cyber tips about emails and Instagram messages containing images of child endangerment which were linked to an email address which incorporated defendant's last name and first initial. Among other devices, officers retrieved a cell phone from defendant's bedroom, but were unable to access the cell phone because it was passcode protected. The State filed a motion to compel production of the passcode by defendant. The Law Division denied the motion, finding the State failed to establish defendant's ownership of the phone. The State appealed.

The court held that the motion court erred by misapplying the foregone conclusion standard set forth in State v. Andrews, 243 N.J. 447 (2020), which established a testimonial exception to a defendant's right against self - incrimination under the United States Constitution as well as in New Jersey statutory and common-law. The court also held that the motion court erred by overlooking facts in the record which were probative on the issue of defendant's ownership or possession of the cell phone.

Driver who asked police to retrieve items from case cant complaint when police find drugs in car

 Defendant appealed from the denial of his motion to suppress evidence in his drug charge case. Defendant also challenged the sentence imposed following his jury conviction. Two police officers on routine patrol passed defendant driving in the opposite direction and noticed that he was not wearing a seatbelt. The officers then began following defendant's vehicle but did not activate their lights and sirens. Defendant ultimately drove to a residence that was not his and parked in the driveway. The officers caught up to defendant and initiated a traffic stop because his vehicle was blocking the public sidewalk. The officers determined that defendant's driving privileges in New Jersey had been suspended and that he had an arrest warrant for failure to appear in court. Defendant was arrested and because he could not arrange for someone to retrieve his vehicle, he asked the officers to grab some personal items. However, when the officers reached into the vehicle to retrieve the items, they found glass vials and sealed zipper bags that contained cocaine and heroin. At trial, the trial court denied defendant's motion to suppress, ruling that he had consented to a limited search of the vehicle to retrieve his personal items, during which the officers discovered the drugs in plain view. The trial court further held that the drugs would have been found under the inevitable discovery doctrine as the vehicle was to be towed. On appeal, the court affirmed defendant's conviction but remanded for resentencing. The court agreed that defendant had asked the officers to retrieve items from his vehicle, while the officers would not have entered the car absent defendant's request.   

State v. Tucker source https://www.law.com/njlawjournal/almID/1642797326NJA076819/

STATE OF NEW JERSEY VS. NESTOR FRANCISCO (18-05-1376, ESSEX COUNTY AND STATEWIDE) (A-3840-18)

 STATE OF NEW JERSEY VS. NESTOR FRANCISCO (18-05-1376, ESSEX COUNTY AND STATEWIDE) (A-3840-18)

As part of a homicide investigation, defendant gave a statement to a detective following the administration and waiver of Miranda1 rights before the filing of a complaint-warrant or the issuance of an arrest warrant. Shortly after the statement began, defendant asked whether it would cause problems with his record because he was an undocumented noncitizen. The detective responded, "No. No," and told defendant his "status has nothing to do with this. I am not going to ask you any questions on your status, or how you got here to this country. Absolutely nothing." Defendant did not invoke any of his Miranda rights during the statement, initially denied involvement, asserted an alibi, and later in the statement made incriminating admissions.

Defendant opposed the State's motion to admit the statement, arguing he did not knowingly and voluntarily waive his Miranda rights because the detective falsely responded to his immigration status concerns. Following an evidentiary hearing, the trial court granted the motion.

The trial court also granted the State's motion to admit evidence of defendant's impecuniosity and prior thefts of personal property from the homicide victim's family, finding the four-part Cofield2 test was satisfied.

Defendant was convicted by a jury of murder, related weapons offenses, and tampering with evidence but acquitted of robbery and theft. He was sentenced to a fifty-year term for the murder, subject to a forty-two and onehalf-year period of parole ineligibility under the No Early Release Act, N.J.S.A.2C:43-7.2, and concurrent terms on the other offenses. Defendant appealed his conviction and sentence.

In State v. Sims, the Court determined that "officers need not speculate about additional charges that may later be brought" and declined to adopt a bright-line rule that requires police officers to inform a suspect, "based on information learned to date in a developing investigation, of what charges may be filed" against him in the future. ___ N.J. ___ (2022) (slip op. 28, 30).

Applied here, the clear import of Sims is that police officers need not speculate about or disclose possible immigration consequences of charges that may be brought in the future. Requiring police officers to do so is unwarranted, impractical, and contrary to the holding in Sims.

The court declined to adopt: (1) a bright-line rule requiring officers to engage in such speculation and to inform an interrogee that their statements could result in deportation or other immigration consequences; or (2) a brightline rule requiring suppression of a statement following inaccurate advice regarding its potential immigration consequences, even where the officer knowingly provides affirmative misadvice (e.g., making false assurances to a suspect that that they will not be deported even if they admit to committing the offense). Instead, as was done in this case, the trial court should consider any bad-faith conduct as part of the totality-of-the-circumstances test when determining whether defendant knowingly and voluntarily waived his Miranda rights. The court affirmed the admission of defendant's statement.

The court also declined to expand Miranda warnings to include advising interrogees of the right to consult with an immigration attorney about the impact of the statement on their immigration status.

Due to the complexity of federal immigration law, the court recommended that law enforcement officers not engage in speculation and risk misadvising an interrogee. If an interrogee asks about the immigration impact of giving a statement, the officer can merely state that they cannot give any legal advice, and reiterate that the interrogee has the right to consult with an attorney and to have an attorney present during questioning.

The court rejected the argument that the State improperly shifted the burden of proof to defendant to produce a witness to corroborate a central facet of his defense, and the claim of prosecutorial misconduct during summation.

The court affirmed the admission of evidence of defendant's impecuniosity as he had placed his financial status in issue by asserting an alibi, claiming he was working in New York on the day of the homicide, and thus had no motive to rob the victim. The court also affirmed that the evidence of defendant's thefts and impecuniosity satisfied the four-part Cofield test, concluding the record showed the thefts were close in time to the homicide and led to defendant's firing, the evidence was clear and convincing, and its probative value outweighed the risk of unfair prejudice to the defendant.

The court affirmed defendant's sentence, finding the trial court properly applied and weighed the aggravating and mitigating factors, which were in equipoise. Accordingly, a midpoint sentence was appropriate. Because the length of the term and period of parole ineligibility were lower than midpoint, the sentence was not manifestly excessive or unduly punitive.

________________________________________________________________
1 Miranda v. Arizona, 384 U.S. 436 (1996).
2 State v. Cofield 127 N.J. 328, 338 (1992).

STATE OF NEW JERSEY VS. M.B. (19-07-1182, OCEAN COUNTY AND STATEWIDE) (A-1363-19)

 STATE OF NEW JERSEY VS. M.B. (19-07-1182, OCEAN COUNTY AND STATEWIDE) (A-1363-19)

Defendant appealed his conviction for certain persons not to possess a weapon after the court denied his motion to suppress evidence seized with a warrant issued from an ex parte domestic violence restraining order. The court reversed and vacated defendant's conviction.

Police officers were called to defendant's home, where the victim alleged that defendant kicked her. Police arrested defendant for simple assault and asked the victim if she wanted to seek a temporary restraining order (TRO), which she did. The victim told police that knives and a pistol were in the home.

One officer called a Municipal Court judge and summarized the incident without being under oath and without the judge taking notes. The judge spoke to the victim, but the officer only overheard the victim's portion of the conversation. The call was recorded but subsequently destroyed pursuant to the police department's thirty-one-day record retention policy.

Based on that call, the judge issued a TRO and a telephonic warrant for police to search defendant's home for weapons. Police recovered knives and defendant moved to suppress. The trial court upheld the validity of the warrant and denied suppression notwithstanding the recording of the call was destroyed. Defendant appealed. Cognizant of the principles enunciated in State v. Hemenway, 239 N.J. 111 (2019), and State v. Cassidy, 179 N.J. 150 (2004), the court determined that the search warrant was invalid because the procedural failures did not provide a reliable record to assure the Municipal Court judge properly authorized the warrant.

The court did not conclude the thirty-one-day retention policies was bad faith per se, but that the policy fell below the obligation to retain evidence in criminal matters and that defendant was manifestly prejudiced by the destruction. Moreover, while a properly reconstructed record can remedy certain procedural failures, the reconstruction here was wholly inadequate. The motion judge only heard from the officer who overheard one side of the call—not the Municipal Court judge who issued the warrant.

Reversed and conviction vacated.

STATE OF NEW JERSEY VS. JASON M. O'DONNELL (21-02-0011, HUDSON COUNTY AND STATEWIDE) (A-3118-20)

 STATE OF NEW JERSEY VS. JASON M. O'DONNELL (21-02-0011, HUDSON COUNTY AND STATEWIDE) (A-3118-20)

Defendant was indicted and charged with violating N.J.S.A. 2C:27-2 based on evidence that, during his 2018 campaign for office of mayor, he agreed to accept from an attorney $10,000 to become the city's tax attorney once defendant was elected; defendant was defeated at the polls. Defendant moved for a dismissal of the indictment. The trial judge granted the motion by relying on United States v. Manzo, 851 F. Supp. 2d 797 (D.N.J. 2012), which interpreted the statute to exclude from criminal liability unsuccessful candidates who accept bribes. The court rejected that interpretation and reversed.

FACEBOOK, INC. VS. STATE OF NEW JERSEY IN RE THE APPLICATION OF THE STATE OF NEW JERSEY, ETC. (1527-CDW-21 AND 1311-CDW-21, ATLANTIC AND MERCER COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED) (A-3350-20

 FACEBOOK, INC. VS. STATE OF NEW JERSEY IN RE THE APPLICATION OF THE STATE OF NEW JERSEY, ETC. (1527-CDW-21 AND 1311-CDW-21, ATLANTIC AND MERCER COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED) (A-3350-20/A-0119-21)

In these two appeals, the court granted the State leave to appeal from two orders, in unrelated matters, partially quashing two communication data warrants (CDWs) requiring Facebook, Inc. n/k/a Meta Platforms, Inc. (Facebook) to turn over, among other things, two of its users' prospective electronically stored communications for a period of thirty days as part of separate ongoing criminal investigations.

On appeal, the court was required to determine as a matter of first impression whether CDWs or wiretap orders had to be served on Facebook, to secure the prospective electronically stored communications. For the reasons stated in the court's opinion, it concluded that only CDWs were required, where, as here, the communications sought were from information that would be stored by Facebook as compared to simultaneous transmission of information through interception. However, it also concluded the CDWs relied upon in these two matters were too lengthy in duration under our State's warrant procedures, and therefore required modification from thirty days to ten days in duration, as prescribed by Rule 3:5-5(a).

State v. Michael Konecny (084880) (Monmouth County & Statewide) (A-21-20;

 State v. Michael Konecny (084880) (Monmouth County & Statewide) (A-21-20; 084880)

Laurick relief and the principles underlying the prohibition against the use of uncounseled DWI convictions extend to the enhanced sentencing scheme in Section 26(b), and prior uncounseled convictions cannot be used as predicates to increase a loss of liberty for DWS. Furthermore, if a defendant obtains traditional PCR on a prior DWI or Refusal conviction and the State does not pursue a second prosecution, that vacated conviction cannot be used as a predicate in a Section 26(b) prosecution. In the present case, however, defendant was not entitled to Laurick relief in the first instance because he had counsel during his prior proceedings. Laurick is available only to defendants who were without counsel and not advised of their right to counsel during their DWI-related prosecutions.

STATE OF NEW JERSEY VS. ROBERSON BURNEY (16-04-1376, ESSEX COUNTY AND STATEWIDE) (A-1342-18)

 STATE OF NEW JERSEY VS. ROBERSON BURNEY (16-04-1376, ESSEX COUNTY AND STATEWIDE) (A-1342-18)

Defendant appeals from his jury trial convictions for first -degree robbery and related crimes. He contends the trial court erred in ruling the State could use defendant's hospital-bed statements for impeachment purposes after ruling that the interrogating detectives had failed to properly administer Miranda warnings. Miranda v. Arizona, 384 U.S. 436 (1966). Defendant also contends the trial court erred in permitting a victim to make an in-court identification notwithstanding that her recollection was tainted when a detective told her that photographs of her stolen watch, that were taken by the perpetrator during the robbery, had been extracted from defendant's cell phone.

At the time of the interrogation, defendant was in a hospital intensive care unit awaiting overdue dialysis. Defendant was hooked up to an intravenous line (IV) and an electrocardiogram (EKG). A notation in his medical chart shows that he was suffering from "toxic/metabolic derangement." The Miranda waiver colloquy and ensuing interrogation was not audio- or videorecorded, even though the detectives had traveled to the hospital for the purpose of interviewing defendant.

The court concludes the detectives were not qualified to make a medical judgment as to defendant's cognitive capacity. Because the hospital -bed interrogation was not electronically recorded, the trial judge could not independently assess defendant's outward condition. Importantly, the trial judge candidly acknowledged that he did not have the benefit of an expert medical witness and thus did not fully understand the meaning of some of the terms used in defendant's hospital chart to describe defendant's medical condition at the time of the police interrogation.

The court recognizes that judicial review of the circumstances of a custodial interrogation must be "searching and critical" to ensure protection of a defendant's constitutional rights. Furthermore, the State bears the burden to prove the voluntariness of defendant's hospital-bed admissions beyond a reasonable doubt. The court therefore deems it necessary to remand the case for the State to present expert testimony concerning defendant's medical condition and for the trial court to make specific findings of fact and law as to the impact of that condition on the voluntariness of defendant's statements to police, considering the totality of all relevant circumstances.

The court rejects the State's alternative argument on appeal that even if the trial court erred in permitting the statements to be used for impeachment purposes, that error was harmless. The record in this case clearly shows that the trial court's ruling to allow defendant's statements to be admitted for impeachment purposes significantly impacted defendant's decision to waive his right to testify on his own behalf. The court follows New Jersey and United States Supreme Court precedent that almost any error in allowing otherwise inadmissible evidence to be admitted for impeachment purposes results in reversal because an appellate court cannot not logically term "harmless" an error that presumptively kept the defendant from testifying.

The court also addresses—and rejects—defendant's contention that the trial court erred by permitting a victim to make an in-court identification of defendant, and by declining to instruct the jury that a detective had tainted her memory by mentioning defendant's name when discussing a photograph defendant had taken of the victim's stolen watch. The court notes this is an unusual situation in that the suggestive information was not conveyed during a traditional pretrial identification procedure such as a photo-array session. Rather, the information was conveyed when the victim confirmed that the photograph, she was shown depicted her watch that was stolen during the robbery.

The court concludes the information as to defendant's name, which was conveyed to the victim before trial, was suggestive in that it had the capacity to influence the victim's in-court identification. However, that circumstance was fully presented to the jury through skillful cross-examination. Indeed, the victim candidly acknowledged that her positive in-court identification wasinfluenced by a deduction she drew from the information provided by the detective, not from her independent recollection of the physical appearance of the robber. The court concludes that in these circumstances, there was little danger that the jury might overstate its inherent ability to evaluate evidence offered by an eyewitness who honestly believed her identification of the perpetrator is accurate. The court thus concludes that the trial judge did not abuse his discretion in ruling that any inherent unreliability in the victim's in-court identification would be better addressed to the jury by way of cross-examination and appropriate instructions.

STATE OF NEW JERSEY VS. RAMI A. AMER (18-06-0460, GLOUCESTER COUNTY AND STATEWIDE) (A-3047-18)

 STATE OF NEW JERSEY VS. RAMI A. AMER (18-06-0460, GLOUCESTER COUNTY AND STATEWIDE) (A-3047-18)

Defendant Rami A. Amer appeals from his convictions for a series of "smash and grab" burglaries, arguing, in part, that his charges should have been dismissed because he was not brought to trial within the timeframe permitted under the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15. The court concludes defendant was timely brought to trial under the IAD after he agreed, through counsel, to a trial date beyond the initial 180-day deadline. The court also determines that even absent defendant's waiver, the filing of certain motions by defense counsel tolled the time limit under the IAD during the pendency of the motions. Accordingly, the court affirms defendant's convictions, but remands for resentencing to allow the sentencing judge to address the overall fairness of the consecutive sentences imposed, consistent with the Court's guidance in State v. Torres, 246 N.J. 246, 272 (2021).