NJ Criminal Law- Recent Cases

STATE OF NEW JERSEY VS. S.K. A-1488-10T1

2012-01-26T15:00:00.001-08:00

STATE OF NEW JERSEY VS. S.K.           A-1488-10T1

Defendant's conviction for violating a domestic violence

restraining order is vacated and the complaint dismissed because

the provision of the order prohibiting defendant from "any other place where plaintiff is located" is overly broad and not authorized by the Prevention of Domestic Violence Act, and also because defendant did not provide a sufficient factual basis for his guilty plea and conviction.  01-17-12

IN THE MATTER OF THE APPLICATION FOR EXPUNGEMENT OF THE CRIMINAL RECORDS OF MARINO LOBASSO A-3577-10T4

2012-01-26T14:58:00.001-08:00

IN THE MATTER OF THE APPLICATION FOR EXPUNGEMENT OF           THE CRIMINAL RECORDS OF MARINO LOBASSO

A-3577-10T4

     We affirmed an order denying expungement of a third-degree eluding conviction after five years.  Appellant relied on L. 2009, c. 188, § 1, codified at N.J.S.A. 2C:52-2a(2), which reduced the waiting period for expunging certain criminal convictions from ten to five years provided the court finds "in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction."  Construing the new law, we concluded that expungement before ten years is reserved for compelling but not necessarily rare or unusual cases.  We held that a trial court should weigh case-specific facts regarding the nature of the offense, the offender's character and conduct, and other relevant factors.  Related to an "offender's character and conduct," a trial court may consider facts of an arrest that did not result in conviction, if supported by cognizable evidence.  Regarding the "nature of the offense," a trial court may consider the grade of the offense, and related circumstances.  Additionally, a trial court may consider:  whether the petitioner engaged in activities post-conviction to limit the risk of re-offending; the petitioner's character and conduct before conviction; and the conviction record's impact on the petitioner's "reentry" efforts.   01-10-12

State v. Roy Friedman (066332; A-18/19-10)

2012-01-26T14:56:00.001-08:00

State v. Roy Friedman (066332; A-18/19-10)

          When a defendant has been sentenced to consecutive           custodial terms under NERA, the periods of parole           supervision that follow must be served consecutively.           There is no need to determine whether Hess applies           here because the trial court recognized its inherent           sentencing authority, engaged in its own Yarbough           analysis, and did not abuse its discretion in           concluding that it was appropriate to impose           consecutive sentences for three separate assaults           defendant admitted committing upon his wife during           three separate periods of time.  1-24-12

State v. James J. Mauti (067006; A-48-10)

2012-01-26T14:55:00.000-08:00

  State v. James J. Mauti (067006; A-48-10)

          The wife of defendant James J. Mauti was entitled to           exercise the spousal privilege of refusing to testify           in his criminal trial because there was no conflict           between her exercise of the privilege and a           constitutional right, and she did not waive her right           to exercise the privilege.  1-23-12

State v. Demetrius Diaz-Bridges

2012-01-26T14:53:00.001-08:00

State v. Demetrius Diaz-Bridges (067065; A-49/50-10)

          Because neither defendant’s statements about his           desire to speak with his mother nor any of his other           statements were assertions of his constitutionally-           protected right to silence, the suppression of any           portion of his confession was in error.  1-12-12

Right to counsel not established by desire to speak with mother State v. Demetrius Diaz-Bridges

2012-01-16T19:24:00.000-08:00

Right to counsel not established by desire to speak with mother

State v. Demetrius Diaz-Bridges (067065; A-49/50-10)

Because neither defendant’s statements about his

desire to speak with his mother nor any of his other

statements were assertions of his constitutionallyprotected

right to silence, the suppression of any

portion of his confession was in error. 1-12-12

STATE OF NEW JERSEY VS. DAVID BAYLOR A-0054-09T1

2012-01-08T18:03:00.003-08:00

STATE OF NEW JERSEY VS. DAVID BAYLOR

A-0054-09T1

The life sentences without parole imposed in this matter do

not violate the Ex Post Facto Clauses of the Federal and State

Constitutions because defendant was convicted of murders that he

committed in 2005, and the murder statute in effect at that time

required the imposition of life sentences without parole where,

as here, the jury found at least one statutory aggravating

factor. 12-29-11

STATE OF NEW JERSEY VS. SHAFFONA MORGAN A-4468-08T4

2012-01-08T18:03:00.001-08:00

STATE OF NEW JERSEY VS. SHAFFONA MORGAN

A-4468-08T4

In this appeal, we hold that a series of ex parte

communications between the trial judge and the jury did not

compromise the integrity of the jury deliberations requiring the

reversal of defendant's conviction. We also hold that, under

the circumstances of this case, the court did not violate

defendant's right to a fair trial or impugn the integrity of the

jury's deliberative process by permitting the jurors to take

copies of sections of the charge with them over a weekend. We

nevertheless caution trial courts against engaging in such a

practice without expressed authority and guidance from the

Supreme Court. We refer this issue to the Civil and Criminal

Practice Committees to develop recommendations to the Supreme

Court to either explicitly forbid the practice, or permit it

under specific guidelines.

12-29-11

DWI reserved and remanded where trial judge did not make findings of fact STATE v. ARTHUR T. CHESTER, III,

2011-12-26T18:33:00.000-08:00

DWI reserved and remanded where trial judge did not make findings of fact

STATE v. ARTHUR T. CHESTER, III,

Defendant-Appellant.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1942-10T4

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

October 11, 2011

Submitted September 14, 2011 - Decided

Before Judges Graves and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Municipal Appeal No. 06-10.

Stefankiewicz & Barnes, L.L.C., attorneys for appellant (David A. Stefankiewicz, on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Thomas A. DeSimone, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Arthur T. Chester, III appeals his conviction for driving while intoxicated on December 22, 2008, N.J.S.A. 39:4-50. He filed a motion to suppress, alleging that the motor vehicle stop was unconstitutional. The municipal court judge denied the motion to suppress, finding that the 4:45 a.m. stop of defendant's car at a security checkpoint to a nuclear plant in Lower Alloways Creek was constitutional. Although defendant's brother testified that he, rather than defendant, drove the car, the municipal judge concluded that defendant was the driver. Defendant stipulated that he was under the influence of alcohol. Testing revealed a .14 blood alcohol content.

Defendant was again found guilty after a trial de novo in the Law Division, conducted by agreement on the papers without oral argument.

On appeal, defendant raises the following arguments:

POINT I

THE STATE DID NOT CARRY ITS BURDEN OF PROVING THAT THE MOTOR VEHICLE STOP AND SEIZURE WAS LAWFUL.

POINT II

THE STATE FAILED TO PROVE THAT DEFENDANT OPERATED THE MOTOR VEHICLE.

The Law Division judge did not make sufficient findings of fact or conclusions of law to allow us to review her decision. The judge put no reasons on the record and made no factual findings. She prepared an order stating in pertinent part the following:

1. The stop of the defendant was supported by reasonable suspicion based on the totality of the circumstances.

2. The State did prove beyond a reasonable doubt that the defendant operated the motor vehicle while intoxicated; therefore the defendant's appeal is DENIED.

When considering appeals from the municipal court, the Law Division must consider the record de novo and make independent findings of fact and conclusions of law in support of an independent finding of guilty or not guilty. State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983) (citing State v. States, 44 N.J. 285, 293 (1965)); see also Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 3:23-8 (2012).

Under our court system, defendants are entitled to two independent considerations of the evidence, one by the municipal court after a trial and one de novo on the record by the Law Division. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)); see also Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 3:23-8 (2012). If defendant appeals, we then apply the appellate standards of review in analyzing the Law Division decision. Our analysis is limited to a determination of whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). We "consider only the action of the Law Division and not that of the municipal court." Id. at 175-76 (citing State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)).

We therefore remand this matter to the Law Division to make findings of fact and conclusions of law.

Reversed and remanded.

STATE OF NEW JERSEY VS. THOMAS W. BERNOKEITS, JR. A-3150-10T4

2011-12-26T14:05:00.000-08:00

STATE OF NEW JERSEY VS. THOMAS W. BERNOKEITS, JR.           A-3150-10T4

     We hold that standard, roadside field sobriety testing does not require the police to have probable cause to arrest or to search, but rather may be undertaken on the basis of a reasonable articulable suspicion alone that defendant was driving while intoxicated.   12-22-11

positive drug result not always neglect for DFYS V.T., G.G. AND R.S.

2011-12-26T14:03:00.000-08:00

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES.           V.T., G.G. AND R.S.

A-2571-10T4

     R.S. appeals the finding that he neglected his eleven-year- old daughter by testing positive for drugs at two supervised visits.  The Division of Youth and Family Services acknowledges that he behaved properly at both visits.  We hold that under these circumstances, the positive test results in themselves are not sufficient evidence of abuse or neglect.  12-21-11

STATE OF NEW JERSEY VS. NICOLE M. HOLLAND // STATE OF NEW JERSEY VS. KENNETH S. PIZZO, JR. A-4384-09T3/A-4775-09T3

2011-12-26T14:02:00.001-08:00

STATE OF NEW JERSEY VS. NICOLE M. HOLLAND // STATE OF           NEW JERSEY VS. KENNETH S. PIZZO, JR.

          A-4384-09T3/A-4775-09T3

     We hold that sufficient credible evidence supports the remand court's findings that the Control Company digital thermometer is comparable in all material respects to the Ertco- Hart digital thermometer previously used during the Alcotest calibration process, and that the Control Company certificate is facially valid and satisfies the requirements as a foundational document as required by State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).  12-20-11

STATE OF NEW JERSEY VS. JOHN J. LAWLESS, JR. A-2064-10T3

2011-12-26T14:00:00.001-08:00

STATE OF NEW JERSEY VS. JOHN J. LAWLESS, JR.           A-2064-10T3

     Defendant pled guilty to aggravated manslaughter and driving while intoxicated.  After consuming a large amount of beer, defendant fell asleep at the wheel of his car, crossed the center line of the road and collided with an on-coming car, killing the driver and causing serious injuries to the passengers.  Citing aggravating factors two (the gravity and seriousness of the harm inflicted), three (the risk that defendant will commit another offense), six (the extent of defendant's prior criminal record), and nine (the need for specific and general deterrence), the judge imposed a thirty- year term of imprisonment for the aggravated manslaughter charge.

          We held that the record did not support reliance on aggravating factor two because defendant pled guilty to only one charge involving one victim; therefore, the judge could not rely on  the injuries suffered by other victims of the collision.  We also held that the judge could not rely on multiple prior driving while intoxicated convictions because these charges are not considered crimes.  We remanded for reconsideration of the sentence in accordance with the aggravating factors supported by the record.   12-07-11

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS A-5962-08T3

2011-12-26T13:59:00.001-08:00

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF           CORRECTIONS

A-5962-08T3

     An inmate at the Adult Diagnostic Treatment Center (ADTC) challenged the authority of the Commissioner of the Department of Corrections to transfer inmates to the ADTC who do not meet the qualifications for confinement at the ADTC set forth in the Sexual Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, more specifically the provisions of N.J.S.A. 2C:47-3.  We concluded that the very specific provisions of the SOA, as explored at length by the Supreme Court in In re Civil Commitment of W.X.C., 204 N.J. 179, 196-99 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011), significantly limit the Commissioner's otherwise broad discretion to assign inmates to available institutions under N.J.S.A. 30:4-91.2, and that only sex offenders who meet each of the three criteria set forth in the SOA can be confined at the ADTC.  Those criteria are: (1) the offender's conduct was characterized by a pattern of repetitive, compulsive behavior, (2) the offender is amenable to sex offender treatment, and (3) the offender is willing to participate in such treatment.  12-02-11

State v. Reynold Regis (A-81-10; 066947)

2011-12-26T13:50:00.001-08:00

12-14-11 State v. Reynold Regis (A-81-10; 066947)
 N.J.S.A. 39:4-88(b) describes two separate and
 independent offenses, one for a driver’s failure to
 maintain a lane to the extent practicable and the
 other for changing lanes without ascertaining the
 safety of the lane change.

John Rogers v. Cape May County Office of the Public Defender (A-63-10; 067048)

2011-12-26T13:49:00.001-08:00

 John Rogers v. Cape May County Office of the Public           Defender (A-63-10; 067048)

          Defendant was not “exonerated” until the indictment           was dismissed with prejudice on July 25, 2008, and his           claim was thus not barred by the one-year filing           limitation in N.J.S.A. 59:8-9.  Nevertheless, because           the claim was filed ten days beyond the ninety-day           limit set forth in N.J.S.A. 59:8-8, further           proceedings are required to determine whether the           “extraordinary circumstances” standard in N.J.S.A.           59:8-9 was satisfied.  12-5-11

Fall 2011 Municipal Court Law Review

2011-12-25T07:36:00.000-08:00

Fall 2011 Municipal Court Law Review

1. DP May Require Forfeit of Public Office. State v. Kennedy 419 NJ Super. 475 (App. Div. 2011)

The offense of tampering with physical evidence is "an offense involving dishonesty," which requires the forfeiture of public office or employment under N.J.S.A. 2C:51-2(a)(1).

2. New Expert Testimony Requires Testimony of Acceptability and Reliability. State v. Pittman 419 NJ Super. 584 (App. Div. 2011)

New Jersey has not considered the admissibility in a criminal case of the results of the phenolphthalein presumptive test for the presence of blood on a person or object or any other presumptive test utilized for that purpose. Nonetheless, in this case, evidence of a positive result was introduced, without objection, by a police detective with no prior experience in conducting the test and no understanding of how it functioned or of the possibility of false positive results occurring as the result of the presence of substances other than blood. The court found the introduction of the test results to constitute reversible error, and in the course of our discussion of the issue, canvassed precedent from other states discussing the conditions for admissibility of the phenolphthalein test and other presumptive tests for the presence of blood.

3. Denial of Criminal Motions does not bar OPRA Request. Kovalcik v. Somerset County Prosecutor’s Office 206 NJ 581 (2011)

The judgment is affirmed to the extent that it concluded that the police and prosecutor office documents are not exempt as protected by an order of confidentiality. The judgment is reversed to the extent that it held that the documents are also not exempted personnel records. That aspect of the matter is remanded to the trial court for further proceedings during which the parties shall be given an adequate opportunity to marshal sufficient proofs as the nature of the contents of the particular documents and the specific educational requirements for employment as a detective in the Prosecutor’s Office to enable the court to apply the statute in accordance with the analysis the Court has set forth.

4. Police did not Require Warrant for Cell Phone Site. State v. Earls 420 NJ Super. 583 (App. Div. 2011)

The use of cell phone site information, obtained by the police without a warrant from a suspect's cell phone provider to determine his general location, does not violate the Fourth Amendment or its counterpart in the New Jersey Constitution because a person has no constitutionally protected right of privacy in his general location on roadways or other public places.

5. No Exception to Search Warrant for “Nuisance Abatement.” State v. Kaltner 420 NJ Super. 524 (App. Div. 2011)

There is no broad "nuisance abatement" exception under the community caretaking doctrine to the general rule that warrantless entries into private homes are presumptively unreasonable. In assessing the constitutional tolerance of entry into and search of a home in response to a noise complaint, we employ the "objectively reasonable test," balancing the nature of the intrusion necessary to handle the perceived threat to the community caretaking concern, the seriousness of the underlying harm to be averted, and the relative importance of the community caretaking concern.

The court holds the test was not met where police officers, responding in the early morning hours to a noise complaint, lawfully entered the home, but thereafter fanned out and searched the entire residence for someone in control, while other less intrusive options were available and no compelling need was presented.

6. Injured DWI driver not barred from Sueing Tavern for Dram Shop Violation. Voss v. Tranquilino 206 NJ 93 (2011)

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Lisa’s opinion.

The bar to litigation in N.J.S.A. 39:6A-4.5(b) can coexist with the Dram Shop Act’s deterrence and liability-imposing principles. An intoxicated person is deterred from driving drunk by losing the right to sue under Title 39 for insurance coverage for his injuries. On the other hand, permitting an injured drunk driver to file an action against a liquor establishment and its servers for serving a visibly intoxicated patron similarly advances the goal of deterring drunk driving. In allowing the latter form of action to proceed, rather than barring it by N.J.S.A. 39:6A-4.5(b), the application of established principles of comparative negligence will apportion properly the responsibility for damages as between dram shop parties and the injured driver.

7. DV Reversed where Court Permitted Testimony of Acts not set forth in Complaint. J.D. v. M.D.F. 207 NJ 458 (2011)

N.J.S.A. 2C:33-4 a. requires proof of a single communication that was made anonymously, at an extremely inconvenient hour, or in a coarse or offensive language, for the purpose to harass and in a manner likely to cause annoyance or alarm. Subsection c. requires proof of a course of alarming conduct or repeatedly committed acts with the purpose of alarming or seriously annoying the victim. Distinguishing between acts that constitute harassment for purposes of domestic violence and those that are ordinary domestic contretemps can be difficult. Such a determination may depend on the second inquiry required for complaints under the Act.

Due process requires that a party in a judicial hearing receive notice defining the issues and an opportunity to prepare. It forbids the trial court from converting a hearing on one act of domestic violence into a hearing on other acts that are not alleged in the complaint. Trial courts should use the allegations in the complaint to guide their questions, and avoid inducing plaintiffs to abandon that history in favor of new accusations.

Not all offensive or bothersome behavior constitutes harassment. Here, the trial court did not identify which subsection of the harassment statute it was applying. The evidence is not sufficient to support a finding under subsection a. because merely being outside of the home in the morning hours is not harassment and J.D. was unaware he was outside until R.T. alerted her, after which he beat a hasty retreat.

8. Defendant Should Assert Speedy Trial on De Novo Appeal. State v Misurella 421 NJ Super 538 (App. Div. 2011)

In this appeal from a DWI conviction, the State concedes that the right not to be subjected to unreasonable delay applies to an appeal, see State v. Le Furge, 222 N.J. Super. 92, 98 (App. Div.), certif. denied, 111 N.J. 568 (1988), and therefore, to a trial de novo in the Superior Court. The court applied the factors established in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and concluded that defendant's speedy trial right was not violated by a 798-day delay from the time he filed his notice of appeal in the Law Division under R. 3:23 until a trial de novo was actually held.

9. Text Messages between Parents Not Automatically Harassment. L.M.F. VS. J.A.F. 421 NJ Super 523 (App. Div. 2011)

In this appeal from a final domestic violence restraining order, the court applied the principles articulated by the Court in J.D. v. M.D.F., _____ N.J. _____ (2011), and concluded the trial court erred in finding the predicate offense of harassment. The parties are divorced parents. They used text messaging as the primary means of exchanging information about their two children. The domestic violence complaint alleged harassment based on defendant sending plaintiff eighteen text messages over a three-hour period. The content of the messages was not threatening or menacing in any way. The court also held there was insufficient evidence of a history of domestic violence to substantiate that a restraining order was necessary to prevent further abuse as required under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).

10. Personal Use Does not Permit Growing Medical Marijuana. State v. Wilson 421 NJ Super 301 (App. Div. 2011)

The principal issue in this is case is whether the personal use defense for manufacturing a controlled dangerous substance, N.J.S.A. 2C:35-2, applies to the growing of marijuana under N.J.S.A. 2C:35-5. After reviewing the relevant statutory language, as well as the purpose for the personal use exemption, we affirm the trial court's determination that there is no personal use exemption for growing marijuana.

11. Lab Report Not Admissible in DWI Case. Bullcoming v New Mexico 131 S. Ct. 2705 (2011)

The Sixth Amendment’s Confrontation Clause gives the accused “[in all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[testimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachusetts, 557 U. S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements.

The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

12. Laurick Motion Requires Prima facie Case for Relief. State v. Weil App. Div. 2011, A-5999-09T4, decided July 5, 2011, Unpublished.

In this appeal, defendant urged the court to revisit State v. Bringhurst, 401 N.J. Super. 421 (2008), and hold, in essence, that a defendant who files a Laurick post-conviction relief petition to obtain relief from enhanced penalties for driving while intoxicated based on a purported uncounseled prior DWI conviction is absolved from establishing a prima facie case for relief where her time delay has resulted in destruction of most of the records pertaining to the prior conviction. The court declines to do so and affirm defendant's conviction. Unpublished.

Editorial Assistance provided by Associate Editor Christian Vera and Matthew Sheptuck. Mr. Vera will be entering his 3^rd year at New York Law School. Mr. Sheptuck will be entering his 2^nd year at Georgetown University Law Center.

2C:39-5 Unlawful possession of weapons.

2011-12-14T10:54:00.000-08:00

2C:33-15 Possession, consumption of alcoholic beverages by persons under legal age; penalty.

2011-12-14T10:48:00.000-08:00

2C:33-15 Possession, consumption of alcoholic beverages by persons under legal age; penalty.

1. a. Any person under the legal age to purchase alcoholic beverages who knowingly possesses without legal authority or who knowingly consumes any alcoholic beverage in any school, public conveyance, public place, or place of public assembly, or motor vehicle, is guilty of a disorderly persons offense, and shall be fined not less than $500.00.

b.Whenever this offense is committed in a motor vehicle, the court shall, in addition to the sentence authorized for the offense, suspend or postpone for six months the driving privilege of the defendant. Upon the conviction of any person under this section, the court shall forward a report to the New Jersey Motor Vehicle Commission stating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If a person at the time of the imposition of a sentence is less than 17 years of age, the period of license postponement, including a suspension or postponement of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period of six months after the person reaches the age of 17 years.

If a person at the time of the imposition of a sentence has a valid driver's license issued by this State, the court shall immediately collect the license and forward it to the commission along with the report. If for any reason the license cannot be collected, the court shall include in the report the complete name, address, date of birth, eye color, and sex of the person as well as the first and last date of the license suspension period imposed by the court.

The court shall inform the person orally and in writing that if the person is convicted of operating a motor vehicle during the period of license suspension or postponement, the person shall be subject to the penalties set forth in R.S.39:3-40. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40.

If the person convicted under this section is not a New Jersey resident, the court shall suspend or postpone, as appropriate, the non-resident driving privilege of the person based on the age of the person and submit to the commission the required report. The court shall not collect the license of a non-resident convicted under this section. Upon receipt of a report by the court, the commission shall notify the appropriate officials in the licensing jurisdiction of the suspension or postponement.

c.In addition to the general penalty prescribed for a disorderly persons offense, the court may require any person who violates this act to participate in an alcohol education or treatment program, authorized by the Department of Health and Senior Services, for a period not to exceed the maximum period of confinement prescribed by law for the offense for which the individual has been convicted.

d.Nothing in this act shall apply to possession of alcoholic beverages by any such person while actually engaged in the performance of employment pursuant to an employment permit issued by the Director of the Division of Alcoholic Beverage Control, or for a bona fide hotel or restaurant, in accordance with the provisions of R.S.33:1-26, or while actively engaged in the preparation of food while enrolled in a culinary arts or hotel management program at a county vocational school or post secondary educational institution.

e.The provisions of section 3 of P.L.1991, c.169 (C.33:1-81.1a) shall apply to a parent, guardian or other person with legal custody of a person under 18 years of age who is found to be in violation of this section.

f.An underage person and one or two other persons shall be immune from prosecution under this section if:

(1)one of the underage persons called 9-1-1 and reported that another underage person was in need of medical assistance due to alcohol consumption;

(2)the underage person who called 9-1-1 and, if applicable, one or two other persons acting in concert with the underage person who called 9-1-1 provided each of their names to the 9-1-1 operator;

(3)the underage person was the first person to make the 9-1-1 report; and

(4)the underage person and, if applicable, one or two other persons acting in concert with the underage person who made the 9-1-1 call remained on the scene with the person under the legal age in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene.

The underage person who received medical assistance also shall be immune from prosecution under this section.

L.1979, c.264, s.1; amended 1991, c.169, s.2; 1997, c.161; 2009, c.133, s.1.

2C:35-10 Possession, use or being under the influence, or failure to make lawful disposition

2011-12-14T10:36:00.000-08:00

2C:33-2. Disorderly conduct

2011-12-14T10:28:00.000-08:00

2C:33-2. Disorderly conduct
a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he

(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or

(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.

b. Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present.

"Public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.

L.1978, c. 95, s. 2C:33-2, eff. Sept. 1, 1979.

STATE OF NEW JERSEY VS. JOHN J. LAWLESS, JR. A-2064-10T3

2011-12-11T19:10:00.001-08:00

STATE OF NEW JERSEY VS. JOHN J. LAWLESS, JR.

A-2064-10T3

Defendant pled guilty to aggravated manslaughter and

driving while intoxicated. After consuming a large amount of

beer, defendant fell asleep at the wheel of his car, crossed the

center line of the road and collided with an on-coming car,

killing the driver and causing serious injuries to the

passengers. Citing aggravating factors two (the gravity and

seriousness of the harm inflicted), three (the risk that

defendant will commit another offense), six (the extent of

defendant's prior criminal record), and nine (the need for

specific and general deterrence), the judge imposed a thirtyyear

term of imprisonment for the aggravated manslaughter

charge.

We held that the record did not support reliance on

aggravating factor two because defendant pled guilty to only one

charge involving one victim; therefore, the judge could not rely

on the injuries suffered by other victims of the collision. We

also held that the judge could not rely on multiple prior

driving while intoxicated convictions because these charges are

not considered crimes. We remanded for reconsideration of the

sentence in accordance with the aggravating factors supported by

the record. 12-07-11

John Rogers v. Cape May County Office of the Public Defender (A-63-10; 067048)

2011-12-11T18:47:00.001-08:00

John Rogers v. Cape May County Office of the Public

Defender (A-63-10; 067048)

Defendant was not “exonerated” until the indictment

was dismissed with prejudice on July 25, 2008, and his

claim was thus not barred by the one-year filing

limitation in N.J.S.A. 59:8-9. Nevertheless, because

the claim was filed ten days beyond the ninety-day

limit set forth in N.J.S.A. 59:8-8, further

proceedings are required to determine whether the

“extraordinary circumstances” standard in N.J.S.A.

59:8-9 was satisfied. 12-5-11

State v. Stanford Yough (A-67-10; 066950)

2011-12-11T18:46:00.000-08:00

State v. Stanford Yough (A-67-10; 066950)

The trial court did not err in denying defendant

Stanford Yough’s motion for a mistrial after the

victim testified on direct and cross-examination that

he observed defendant more times than he had indicated

in his statement to the police. No errors occurred

during those exchanges that were clearly capable of

producing an unjust result. 11-30-11

STATE OF NEW JERSEY VS. JEFFREY S. ZEIKEL A-1495-10T4

2011-11-19T19:41:00.001-08:00

STATE OF NEW JERSEY VS. JEFFREY S. ZEIKEL

A-1495-10T4 11-09-11

Defendant was correctly sentenced as a third-time DWI

offender based on a prior conviction in New Jersey for DWI and

two prior convictions in New York State for driving while

ability impaired. The New York convictions were "of a

substantially similar nature" as a DWI violation in New Jersey.

See N.J.S.A. 39:4-50(a)(3). Defendant's constitutional,

statutory, and factual challenges to the consideration of his

1980s New York convictions are rejected.

Statements about wanting counsel may be Miranda issue STATE v FREBERT BONHOMETRE

2011-11-19T19:09:00.000-08:00

STATE v FREBERT BONHOMETRE

________________________

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5616-07T1

July 27, 2011

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Grall, C.L. Miniman and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-06-1490.

Kevin G. Byrnes, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Byrnes, on the briefs).

Mary R. Juliano, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the briefs).

PER CURIAM

Defendant Frebert Bonhometre appeals his convictions for first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; fourth-degree tampering with physical evidence, contrary to N.J.S.A. 2C:28-6(1); and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(3). The trial judge sentenced defendant to a twelve-year term in prison with an eighty-five-percent parole disqualifier on the armed-robbery conviction pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a concurrent one-year term on the evidence-tampering conviction; and a concurrent three-year term on the resisting-arrest conviction. We affirm the latter two convictions and sentences but reverse the armed-robbery conviction, suppress defendant's confession, and remand for a new trial on the armed-robbery charge.

The trial evidence established that during the morning hours of November 27, 2006, defendant entered the First Atlantic Federal Credit Union (Credit Union) on Route 66 in the ShopRite shopping center in Neptune Township. He approached Matsuyo Hansford, who was working behind the counter as a bank teller. Defendant slid a note across the counter that read: "I have a gun, and give me some money . . . or you will be dead." Defendant's right hand was concealed in his pocket, where an object that appeared to be a gun pointed toward Hansford. Defendant quietly instructed her to "open the drawer," and as she moved to comply, defendant warned, "[D]on't touch any alarm." Hansford opened the drawer, and defendant leaned over the counter and grabbed some cash out of the drawer. Taking the note with him, he turned around and walked out of the bank. Hansford then activated the alarm and shouted to her manager, Patricia Ippolito.

Ippolito ran to the front door to see the robber and observed a black male walking towards a vehicle. He was approximately 5'10" and was wearing a baseball cap, a long-sleeved, white-striped flannel shirt, and dark colored pants. Later identified as defendant, the man got into the driver's side of the vehicle and drove away. The vehicle was blue with scuff marks on the bumper and rear and had black tires and New York plates. Then Ippolito returned to the Credit Union and called the police. It was determined that a total of $1,741 had been stolen, broken down into "20s, tens and ones."

Officers arrived at the scene within minutes. Bank security provided the officers with footage that the surveillance system had captured during the robbery. Ippolito also provided them with descriptions of the suspect, his vehicle, and his direction of travel. These descriptions were conveyed through dispatch and, in response, Detective Kevin Devine headed to the Credit Union.

In the ShopRite parking lot, Devine observed a car that fit Ippolito's description: "a light blue small car, had some rust on it, some body work on it, with a New York license plate on it." A lookup on the vehicle revealed that it was registered to Maria Bonhometre from New York. Through "a Fort Monmouth sticker that was in the vehicle," Devine "checked with the FBI database and found that [defendant] had been stopped in that vehicle on Fort Monmouth." Then Devine went to the Credit Union to inform Detective Michael Dugan that he had found a car "that fit the description of the vehicle that was observed leaving the bank."

Detective Philip Seidle took Ippolito to the ShopRite parking lot to view the automobile, and she identified it as the vehicle that the suspect entered. The vehicle was towed to a Neptune Township garage, where it was secured. Then a search warrant was obtained and executed that same day. In the car, officers found a "checkbook for a Shawana Smith" containing checks and carbon copies of checks made out to defendant. Officers also discovered defendant's New York State driver's license and a Credit Union bank card.

The following day, November 28, 2006, Detective Captain Edward Swannack went looking for defendant near his home address and observed "someone who fit his description." Believing that he had found the suspect, he called for backup, and Seidle and Detective Damico responded. When defendant noticed the detectives, a foot pursuit ensued during which defendant started pulling cash from his pocket and throwing it to the ground. Seidle continued to order defendant to "stop, stop" until eventually he caught up with defendant and knocked him to the ground. There was a brief struggle, but with the aid of Swannack and Damico, Seidle was able to control defendant and handcuff him. The police recovered $688.85 of the money that defendant had thrown away during the foot pursuit but were unable to determine if it was part of the money stolen from the Credit Union.[1]

The officers took defendant back to headquarters where he participated in a videotaped interview with Dugan and Detective Pamela Ricciardi. The tape was played to the jury at defendant's trial, and the jury was provided with a transcript of the video as a guide. The video shows defendant waiving his Miranda[2] rights and confessing to the armed robbery.

Additionally, defendant told the detectives that he had been using excessive amounts of cocaine and had been staying in a crack house, where he purchased cocaine on "credit." He robbed the Credit Union to repay the dealers' loan at the suggestion of the dealers because they threatened him if he did not do as they wished. He also explained that he was high and did not actually have a gun during the robbery.

At trial, defendant moved to suppress his confession, and the judge conducted a Miranda hearing, at the conclusion of which he denied defendant's motion. Defendant thereafter asserted duress as a defense to the armed-robbery charge. Nevertheless, the jury found defendant guilty of armed robbery and the two related charges. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I - THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT [DEFENDANT] HAD VOLUNTARILY AND KNOWINGLY WAIVED HIS [MIRANDA] RIGHTS.^[[3]]

POINT II - [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTION THAT PRECLUDED THE JURY FROM CONSIDERING THE AFFIRMATIVE DEFENSE TO ARMED ROBBERY (Not Raised Below).

POINT III - [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE (Not Raised Below).

POINT IV - [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER USE OF OTHER-CRIME EVIDENCE WITHOUT A PROPER LIMITING INSTRUCTION (Not Raised Below).

POINT V - [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT ON SUMMATION (Not Raised Below).

POINT VI - [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS PROPERLY ON THE LAW OF ATTEMPT NOTWITHSTANDING THE FACT THAT AN ATTEMPT WAS AN ESSENTIAL ELEMENT OF THE CRIME OF RESISTING ARREST (Not Raised Below).

POINT VII - THE SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

II.

Defendant argues that his confession should have been excluded at trial because the State failed to prove beyond a reasonable doubt that he knowingly and voluntarily waived his Miranda rights. He alleges that he invoked his right to counsel, but the detectives did not cease their interrogation as required by State v. Kennedy, 97 N.J. 278, 285 (1984).

Prior to any custodial interrogation, an accused must be advised of his rights to remain silent and to have an attorney present during questioning and, "[o]nce an accused invokes the right to counsel, that right must be scrupulously honored." State v. Chew, 150 N.J. 30, 61 (1997) (internal quotation marks omitted), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006). If a defendant invokes his right to counsel, all questioning must terminate until counsel is made available, unless the accused himself initiates further dialogue about the crime. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981). Because the right to counsel is so fundamental, an equivocal request for an attorney is interpreted in the light most favorable to the defendant. State v. Wright, 97 N.J. 113, 119 (1984). Also,

[w]here a suspect makes a statement which arguably amounts to an assertion of his Miranda rights and the interrogating agent recognizes that the statement is susceptible of that construction, his questioning with regard to the crime he is investigating should immediately cease and he should then inquire of the suspect as to the correct interpretation of the statement. Only if the suspect makes clear that he is not invoking his Miranda rights should substantive questioning be resumed.

[State v. Fussell, 174 N.J. Super. 14, 21 (App. Div. 1980) (internal quotation marks omitted).]

In order to secure admission of a statement into evidence, the State must prove beyond a reasonable doubt that it was voluntary. State v. Bey (Bey II), 112 N.J. 123, 134 (1988).

The dialogue on which defendant relies to assert that he invoked his right to counsel follows:[4]

[Defendant]: If I do get on with this [statement], how much time am I facing?

[Dugan]: Frebert, I don't know, and that is not something we can even––we can––I really don't know.

[Ricciardi]: Right.

[Dugan]: Okay.

[Ricciardi]: I can't––

[Dugan]: (Inaudible).

[Ricciardi]: We are not––we are not even allowed to say that to you, Frebert,––

[Defendant]: I know––

[Ricciardi]: 'Cause we're not attorneys.

[Defendant]: I know, but––

[Dugan]: You've got to make it better for yourself now.

[Defendant]: I––I guess I need to talk to an–– [(Emphasis added.)]

[Ricciardi, interrupting defendant]: Let me put it to you––

[Dugan, simultaneously and loudly interrupting defendant]: Listen––Listen Frebert, let me say this to you, okay. You went to the First Atlantic Bank on the 22nd and cashed a check, okay. You took money out on the 22nd of the First Atlantic Bank, okay.

[Defendant]: (Inaudible).

Thus, no definitive request for an attorney is audible on the videotape. Dugan continued interrogating defendant:

[Dugan]: You went on the 22nd to a teller, an Asian teller and made a transaction, okay.

[Defendant]: (Inaudible).

[Dugan]: You went back there––

[Defendant]: On the 22nd?

[Dugan]: On the 22nd, okay. We have you––

[Defendant]: 22nd of November?

[Dugan]: Yeah, we know you went in there on the 22nd, okay. You made a transaction. Monday. Frebert, look at me for a second.

[Defendant]: Wait, wait, wait.

[Dugan]: I'm going to explain it to you because, let me explain the whole picture to you. Monday you go back to get money to the same teller. She recognizes you from the 22nd. You have already been to that bank. When you go in there Monday, Frebert, you go to the same teller. You ask her to give you money, isn't that right? You ask her for money.

[Defendant]: (Inaudible).

[Dugan]: Yes.

[Defendant]: Can you show me that again?

[Dugan]: Yes, I can show you that, Frebert.

Then defendant apparently asked to see some of the photos in an evidence folder on the table. By this time, more than a minute had elapsed since defendant said, "I need to talk to an––." As Dugan reached for the evidence folder, Ricciardi interrupted him and said:

[Ricciardi]: I want to clear something up.

[Defendant]: Okay.

[Ricciardi]: You just said before that you want to speak to your attorney. Is that what you want to do or do you want to retract that statement and see the evidence that we have because I'm willing to show it to you? But if that's what you are telling me, then we have to honor that, okay. If you are saying to us that's not what you want, that you want to continue with this statement and continue looking at the evidence that we have, because I am more than willing to show it to you, but if you, you need to tell us that. You tell me. We can–– [(Emphasis added.)]

[Defendant]: (inaudible) I will.

[Dugan]: We are trying to help you out here, Frebert. We're trying to help you out.

[Ricciardi]: Right. So you tell me.

[Defendant]: I can see you guys are trying to help me.

Defendant advised the detectives, "I understand everything you guys said" and "I understand you completely." Ricciardi later asked, "Do you want to continue?" Defendant responded, "Yeah, show me the pictures from Monday and the 22nd."

At the Miranda hearing, Dugan testified that he had not heard defendant request counsel and believed defendant wanted to speak to him. Ricciardi also testified at the Miranda hearing explaining that she was unsure whether defendant asked for his attorney:

At that time I had looked over at [Dugan] to see if––if he had heard what I thought I had heard and he didn't respond to me in that way at all. So I just asked him out of––you know, out of respect for his rights to see if that is, in fact, what he had said.

At the conclusion of the Miranda hearing, the judge found that defendant responded at one point with "'I guess I need to talk.'" "[T]hen very quickly [Ricciardi] sa[id], 'Let me tell you[,]' [a]nd Dugan continue[d] on, asking questions about his going to the bank on the 22[nd]." The judge then quoted the colloquy by Ricciardi questioning defendant as to his request to speak to his attorney. The judge pointed out that defendant never invoked the right to counsel after Ricciardi's questioning. He concluded that State v. Hartley, 103 N.J. 252, 256 (1986), was not triggered because defendant's alleged statement about counsel was ambiguous, that Dugan did not hear it, and Ricciardi's testimony that she was uncertain about the invocation was credible. He found that, although Ricciardi did not reiterate all of the Miranda warnings, she did again advise him of his right to counsel. Defendant was more interested in seeing the evidence and did not thereafter invoke his rights to remain silent or talk to counsel. He found that "[n]either one of the officers knew what this defendant had to say." Further, he found "that Dugan didn't hear at all; and that as soon as [Ricciardi] realized it, she did question him and did get his agreement to continue." He then held that defendant had voluntarily and knowingly waived his Miranda rights.

We recognize that a trial judge's fact-findings "should not be disturbed if there is sufficient credible evidence in the record to support the findings." State v. Adams, 194 N.J. 186, 203 (2008); see also State v. Chun, 194 N.J. 54, 88-89 ("We will therefore limit our review of those findings and recommendations to a consideration of whether they are supported by sufficient credible evidence in the record . . . ."), cert. denied, 555 U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); State v. Arthur, 184 N.J. 307, 320 (2005) ("An appellate court must accept a trial court's factual finding if it is supported by sufficient credible evidence in the record."); In re Taylor, 158 N.J. 644, 656 (1999) (noting that an "appellate court may not engage in an independent assessment of the evidence as if it were the court of first instance" (internal quotation marks omitted)).

Consequently, "our appellate function is a limited one: we do not disturb the factual findings . . . of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). Additionally, the availability of a videotape does not extinguish the appellate deference owed to a trial court's factual findings. State v. Elders, 192 N.J. 224, 244 (2007). Indeed, the trial court "ha[s] the benefit not only of viewing the videotape, but also of observing the testimony of witnesses." Id. at 245 (citing State v. Chapman, 332 N.J. Super. 452, 459-60 (App. Div. 2000)).

The Elders Court concluded that where a video camera is in a fixed position and cannot record all of the events of a roadside stop and highway noise prevented the tape from capturing all of the conversations, we were required to defer to the judge's fact-findings based on the videotape and the officers' testimony. Ibid. There, the judge had determined that the officers did not have a reasonable, articulable suspicion to justify a search, but we concluded otherwise. Id. at 235-37. The Court reminded us that "[t]he motion judge was entitled to draw inferences from the evidence and make factual findings based on his 'feel of the case,' and those findings were entitled to deference unless they were 'clearly mistaken' or 'so wide of the mark' that the interests of justice required appellate intervention." Id. at 245.

This same standard of review applies to a custodial recording of an interrogation. State v. W.B., 205 N.J. 588, 606 n.9 (2011) (in the context of a videotaped interrogation, noting that "Elders held that the review of a videotape of events subject to the trial court's determinations of credibility and fact[-]finding does not affect the appellate scope of review").

Although we must defer to the judge's fact-findings, we owe no deference to his application of law to those facts. State v. Handy, 206 N.J. 39, 45 (2011); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Here, the question is whether law enforcement scrupulously honored defendant's right to counsel. Chew, supra, 150 N.J. at 61. Where the State fails to scrupulously honor the invocation of a suspect's rights, that failure "renders unconstitutionally compelled any resultant incriminating statement made in response to custodial interrogation [and] there can be no question of waiver." Hartley, supra, 103 N.J. at 261.

Rights may be asserted "in any manner, at any time." Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723. As we mentioned initially, even an ambiguous invocation of the right to counsel requires that questioning cease. Wright, supra, 97 N.J. at 119-20; see also State v. Bey (Bey I), 112 N.J. 45, 64-65 (1988) (finding that "a request to terminate an interrogation must be honored however ambiguous" (internal quotation marks omitted)); State v. Burno-Taylor, 400 N.J. Super. 581, 590 (App. Div. 2008) (noting same standard for right to remain silent). Further, any equivocal invocation must be construed in a light most favorable to the defendant. Wright, supra, 97 N.J. at 119. "If the police are reasonably uncertain whether the person is asserting the right to [counsel], they may only ask questions directed to resolving that uncertainty." Burno-Taylor, supra, 400 N.J. Super. at 590 (emphasis added); accord Wright, supra, 97 N.J. at 120.

Here, in finding that defendant's alleged statement about counsel was ambiguous, the judge was required to construe that statement in defendant's favor, Wright, supra, 97 N.J. at 119, and infer an invocation of the right to counsel, but he failed to do so. He simply found that the statement was ambiguous and then made fact-findings respecting the detectives' states of mind about the ambiguous invocation of counsel and whether defendant intended to assert his right to counsel. "The critical question, however, is not whether defendant intended to assert his right to [counsel] or whether the officers intended to mislead defendant into waiving his rights." Burno-Taylor, supra, 400 N.J. Super. at 605 (holding that "the credibility findings of the trial court do not circumscribe our determination of" whether the officers scrupulously honored an invocation of rights, id. at 606). Instead, the judge was required to determine "whether defendant's words or conduct could reasonably be viewed as an assertion of his right to [counsel]; if they could be, the officers were obligated to cease their questioning or limit their questions solely to clarify that issue." Id. at 605-06. We are satisfied that defendant's words, taken in context, can reasonably be construed to invoke his right to counsel.

The judge also did not consider whether Ricciardi immediately ceased questioning, and caused Dugan to immediately cease questioning, after she heard an ambiguous statement from defendant that caused her to question whether he had invoked his right to counsel, as required by Fussell, supra, 174 N.J. Super. at 21. Instead, she allowed Dugan to continue the interrogation for more than a minute, and then she pressed defendant to retract his invocation without giving him an opportunity to clarify whether he had invoked his right to counsel in the first place. The judge made no fact-findings in this respect, although the evidence before him established unequivocally that Ricciardi failed to comply with Fussell.

Ricciardi's effort to persuade defendant to retract that invocation was contrary to the State's duty to scrupulously honor a request for counsel. Chew, supra, 150 N.J. at 61. Instead, she should merely have inquired if she was correct in understanding that he had invoked his right to counsel. Fussell, supra, 174 N.J. Super. at 21. These deficiencies, after an ambiguous invocation, mandated suppression of defendant's confession.

Having determined that defendant's confession subsequent to the ambiguous invocation of his right to counsel was inadmissible, we still must determine whether its erroneous admission into evidence was harmless. State v. Pillar, 359 N.J. Super. 249, 275 (App. Div.), certif. denied, 177 N.J. 572 (2003). We are satisfied that it was not harmless because neither Hansford nor Ippolito could identify defendant as the perpetrator of the robbery. Without the confession, a reasonable jury could well have concluded that the State could not prove defendant's guilt beyond a reasonable doubt. Accordingly, the conviction for first-degree armed robbery is reversed, and the matter is remanded for a new trial on that charge, with instructions to delete all statements made by defendant after he stated, "I guess I need to talk to an––."

To the extent that defendant's arguments implicate his convictions or sentences on the remaining counts, we have concluded that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

[1] The bank had recorded numbers of five dollar bills included in the money that was stolen, but none of the bills that were recovered from defendant matched.

[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

[3] This point was also raised in a supplemental brief filed after the remand proceedings.

[4] This is a combination of the State's and the court reporter's transcripts of defendant's video-recorded statement.

Search thrown out where police should have called for search warrant first State v. MARK A. BROWN, DOCKET NO. A-2806-09T3

2011-11-08T19:39:00.000-08:00

Search thrown out where police should have called for search warrant first

State v.

MARK A. BROWN, DOCKET NO. A-2806-09T3

_____________________________________

October 18, 2011

Submitted September 14, 2011 - Decided

Before Judges Fuentes, Graves, and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-09-0811.

Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

STATE OF NEW JERSEY,

PER CURIAM

In September 2006, a Gloucester County grand jury returned a six-count indictment charging defendant Mark A. Brown with fourth-degree possession of fifty grams or more of marijuana, N.J.S.A. 2C:35-10(a)(3) (count one); third-degree possession of more than one ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count two); third-degree possession of phencyclidine (PCP), N.J.S.A. 2C:35-10(a)(1) (count three); first-degree possession of more than ten grams of PCP with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(6) (count four); and third-degree hindering apprehension by providing false information to a law enforcement officer, N.J.S.A. 2C:29-3(b) (count five).^¹ A five-day jury trial in 2009 resulted in defendant's acquittal of first-degree possession of more than ten grams of PCP with intent to distribute. Defendant, however, was convicted of the remaining charges, together with the lesser-included offense in count four of second-degree possession of less than ten grams of PCP with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.2C:35-5(b)(7). At sentencing, the trial court granted the State's motion for an enhanced sentence pursuant to N.J.S.A. 2C:43-6(f) and imposed an aggregate term of imprisonment of twelve years with a five-year period of parole ineligibility.

Defendant appeals, raising the following arguments for our consideration:

POINT I: THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.

A. THE DRUGS CONFISCATED FROM THE BACK SEAT OF THE CAR SHOULD BE SUPPRESSED BECAUSE THE STATE FAILED TO MEET ITS BURDEN TO ESTABLISH AN EXCEPTION TO THE WARRANT REQUIREMENTS.

B. DEFENDANT'S PURPORTED CONFESSION SHOULD HAVE BEEN SUPPRESSED AS FRUIT OF THE POISONOUS TREE.

POINT II: THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE DEFENDANT'S MOTION TO DISMISS COUNTS 3 AND 4 OF THE INDICTMENT WHERE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THOSE CHARGES.

POINT III: DEFENDANT IS ENTITLED TO A NEW TRIAL DUE TO PROSECUTORIAL MISCONDUCT DURING THE STATE'S CROSS-EXAMINATION OF THE DEFENDANT, AND TO THE TRIAL COURT'S ABUSE OF DISCRETION BY DENYING THE DEFENDANT'S REQUEST FOR A MISTRIAL AND/OR REQUEST FOR A CURATIVE JURY INSTRUCTION.

POINT IV: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO COMPEL DISCOVERY WHERE THE REQUESTED EVIDENCE WAS RELEVANT, MATERIAL, AND DISCOVERABLE UNDER BRADY.

POINT V: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

A. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE PROSECUTOR'S MOTION FOR AN EXTENDED TERM WHERE DEFENDANT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT THE PROSECUTOR'S REFUSAL TO OFFER A POST-CONVICTION PLEA WAS ARBITRARY AND VINDICTIVE.

B. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO CONSIDER CERTAIN MITIGATING FACTORS.

POINT VI: THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED.

POINT VII: THE ISSUES RAISED IN DEFENDANTS PRO SE BRIEF, IF ANY, SUPPORT HIS REQUEST FOR A REVERSAL OF HIS CONVICTION AND SENTENCE.^²

We agree with defendant's first point that the Law Division erred in not suppressing certain evidence found in the backseat of the car in which defendant was a passenger, which led to the improper admission of defendant's statement. The consequences of these errors result in the entire jury verdict being irretrievably tainted. Accordingly, we reverse and remand for a new trial on all charges.

The following facts are derived from the suppression motion and trial. On April 27, 2006, at approximately 8:45 p.m., Investigator Michael Cramer of the West Deptford Township Police Department observed an automobile traveling on Route 295 in West Deptford Township pass his patrol car in the left-hand lane. The vehicle was driven by defendant's uncle, John Gross. Defendant and co-defendant, Vincent Daniels, were passengers. Cramer observed the vehicle abruptly move across two or three lanes of traffic without signaling, and proceed to exit the highway at a high rate of speed, nearly striking a guardrail in the maneuver. He followed the vehicle and directed it to pull over on Route 45, "approximately 100 feet from the Colonial Café Bar, which is located on the corner of Colonial Avenue and Route 45."

Cramer approached the passenger side of the vehicle and observed three individuals inside. He then asked Gross to produce his license, registration, and insurance papers, which Gross provided as he informed Cramer that his license was suspended. At this time, Cramer also observed that defendant, who was seated in the front passenger seat, was not wearing a seatbelt and asked him for identification in order to issue a summons. Defendant did not produce any identification but did falsely identify himself as John Carr. Cramer then asked defendant for his age and date of birth, which were not in agreement, giving Cramer more cause for suspicion.

As he stood beside the passenger side window, Cramer smelled the odor of raw marijuana emanating from the vehicle. Satisfied that he had accurately identified the source of the odor, having reportedly smelled raw marijuana on hundreds of occasions during his eleven years as a police officer, Cramer asked Gross to exit the vehicle, read him his Miranda^³ rights, and informed him that he and the two passengers would be searched. A pat-down search of Gross and Daniels revealed no weapons or contraband. The two men, who were then not yet under arrest, were asked to remain with three backup police officers who had since arrived. Defendant was then requested to exit the vehicle, at which point Cramer noticed a "large bulge . . . in [defendant's] waistband." When asked what was in his waistband, defendant "turn[ed] his body away from [Cramer] so that [Cramer] was unable to look at the front of [defendant's] body where the bulge was [located]." Concerned that defendant might be in possession of a weapon, Cramer "leg-swept [defendant] and put [defendant] on the ground," at which point defendant exclaimed, "[d]on't shoot. Don't shoot me. It's only a bag of weed."

Cramer handcuffed defendant, stood him upright, and lifted his shirt up, revealing a bag containing marijuana. The officer also uncovered a second bag from defendant's waistband containing thirteen vials of PCP before placing defendant under arrest. A subsequent search of the backseat passenger compartment revealed thirty additional vials of PCP inside Styrofoam food containers also containing chicken and ribs.

Defendant, Gross, and Daniels were arrested for possession of controlled dangerous substances with the intent to distribute. They were transported to the West Deptford Police Department for processing.^⁴ Gross was issued motor vehicle summonses for driving with a suspended license, careless driving, and failure to keep right on the highway. Defendant received a summons for failure to wear a seatbelt.

At the police station, defendant asked if he could provide a statement that all of the controlled dangerous substances recovered from the vehicle were his. Investigator Michael Pfeiffer took defendant's statement, which was recorded on audiotape. Although defendant insisted that the drugs were his alone, he also spoke in the first person plural at times, suggesting he acted with at least one other person. When asked for what purpose he had the drugs, defendant answered that "[h]e was going to smoke it." Pfeiffer then asked, "[y]ou smoke that much?" to which defendant responded, "[w]ell, I was going to split it with some people."

At trial, defendant testified in his own defense. He stated that on April 27, 2006, he, Gross, and Daniels were in Salem when they decided to travel to Camden by bus to "get some wet or some PCP or whatever."^⁵ Defendant admitted purchasing four ounces of marijuana and a bundle of PCP, consisting of thirteen vials. He and Daniels then walked to defendant's grandmother's house where defendant's uncle, Gross, agreed to give the pair a ride back to Salem.

When asked about the four ounces of marijuana found on his person, defendant maintained that the drugs were for his personal use, stating that it would take him "two, three weeks at the most" to smoke four ounces of marijuana since he typically smoked it all day long. However, when confronted about his recorded admission that the PCP-filled vials in the backseat were also his, defendant claimed that he only made the statement so that his uncle, who defendant believed was on parole at the time, wouldn't be charged:

So I knew [Cramer] was going to charge all of us. I basically was like, I already got caught red-handed with drugs on me, so I might as well take the rest of the drugs so all of us won't get charged —— or basically so [my uncle] won't get charged and get [a parole violation].

After realizing he was "facing all that time [in prison]" defendant disavowed knowledge of how the PCP-filled vials came to be found in the Styrofoam containers, and expressly claimed that those drugs were not his.

Heather Garoh, the State's expert forensic scientist, testified without objection that PCP was found in the vials, and its aggregate weight was 17.18 grams. When asked, "how much it would weigh if it were [thirteen] vials," she replied that the net weight would be "[a]pproximately . . . about [two] or [three] grams."

Charles Landi, a detective in the Gloucester County Prosecutor's Office, Narcotics Strike Force, offered expert testimony (without objection) about "the distribution and quantity of controlled dangerous substances." He concluded that the forty-three vials of PCP, with a $645 street value, and four ounces of marijuana, with a $400 street value, found between defendant's person and the automobile's interior was consistent with distribution as opposed to personal use. He further opined that the lack of drug paraphernalia in the car and in the possession of the occupants also suggested that the drugs were intended for distribution.

Defendant called David Leff, an expert in drug "usage, packaging and distribution," to rebut Landi's opinion that the drugs were possessed for distribution. Leff opined that the quantity of drugs found on defendant's person was consistent with personal use, and not distribution. He also noted that no money was found on defendant, Gross, or Daniels, further suggesting that the drugs were intended for personal consumption and not distribution.

At a pretrial hearing on October 3, 2008, defendant moved to suppress the thirty vials of PCP located inside the vehicle as fruits of an unconstitutional search. The Law Division denied the motion, finding that 1) the police had probable cause to search the vehicle after finding marijuana in defendant's possession and 2) exigent circumstances existed, since neither Gross nor Daniels were under arrest and "were going to remain with the car."

At sentencing, the prosecution moved for a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f) of fifteen years imprisonment with a five-year period of parole ineligibility on count four (a second-degree offense) and a consecutive seven-year extended term sentence with a three-year period of parole ineligibility on count two (a third-degree offense), for an aggregate sentence of twenty-two years. The court granted the State's motion for a mandatory extended term on count four and sentenced defendant to a twelve-year term of imprisonment with a five-year period of parole ineligibility. On count two, the court imposed a concurrent six-year term of imprisonment with a three-year period of parole ineligibility; a concurrent term of three years was imposed on count five. Count one merged with count two; count three merged with count four. This appeal followed.

II.

Defendant's first point links what he claims was an illegal search of the car's backseat (and the resultant seizure of the thirty vials of PCP) with his recanted admission claiming dominion and control over all of the drugs in the car. The State counters defendant's arguments by suggesting —— without conceding the illegality of the search and the connection to the admission —— that because defendant was convicted only of the lesser-included offense of second-degree possession with intent to distribute less than ten grams of PCP, rather than the greater amount charged in the indictment, the jury rejected defendant's involvement with those thirty vials of PCP. The State adds that defendant was only convicted for the thirteen vials that he was found with "red-handed," and therefore defendant's claims of error are moot.^⁶ We agree with defendant that the State failed to satisfy the requisite burden of proof to validate the warrantless search of the backseat of the car. We disagree that the jury verdict of guilty to the lesser-included offense moots defendant's grievance.

Our review of the grant or denial of a motion to suppress is limited. We are bound to defer to the factual findings of the motion court "so long as those findings 'are supported by sufficient credible evidence in the record.'" State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)), aff'd 206 N.J. 39 (2011). We owe particular "'deference to those findings of the [motion] judge which are substantially influenced by [her] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy,'" and will not upset such findings simply because we would have reached a different result. Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We reverse only when "'the interests of justice demand intervention and correction.'" Ibid. However, our review of the legal conclusions that flow from established facts is plenary. Handy, supra, 412 N.J. Super. at 498 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures. State v. Mann, 203 N.J. 328, 337 (2010); U.S. Const. amend. IV;N.J. Const. art. I, ¶ 7. A warrantless search or seizure is presumptively invalid and the State bears the burden of proving by a preponderance of the evidence that "'[the search] falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)); see also State v. Pineiro, 181 N.J. 13, 19-20 (2004).

One such exception is the automobile exception. Pursuant to the federal Constitution, "a warrantless search of a motor vehicle pursuant to the automobile exception is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality." State v. Pena-Flores, 198 N.J. 6, 20 (2009) (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed.2d 1031, 1036 (1996)).

Our Supreme Court, however, has interpreted art. I, ¶ 7 of our State Constitution as providing greater protection against unreasonable searches and seizures than the federal Constitution. State v. Pierce, 136 N.J. 184, 208-09 (1994). Thus, in Pena-Flores, the Court reaffirmed its holding in State v. Cooke, 163 N.J. 657, 667-68 (2000), that the warrantless search of an automobile is "permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." Pena-Flores, supra, 198 N.J. at 28.

The first two requirements were satisfied in this case. First, the motor vehicle stop was unplanned and triggered by Gross's erratic driving. Second, the smell of raw marijuana emanating from the vehicle gave Cramer probable cause to search the automobile for drugs or other contraband, especially after a bag of marijuana was found on defendant's person. See State v. Nishina, 175 N.J. 502, 515-16 (2003) (holding that smell of marijuana constitutes probable cause to believe crime has been committed and that additional contraband might be present). Cramer also testified that in his experience, it was common for drug traffickers to store a small amount of drugs on their person to avoid prosecution for a larger amount stored elsewhere. Thus, the critical inquiry here is whether exigent circumstances existed rendering it "impracticable to obtain a warrant." Pena-Flores, supra, 198 N.J. at 28.

The determination of exigent circumstances is fact sensitive and must be resolved on a "case-by-case basis" with consideration of the "totality of the circumstances." Ibid. Central to the analysis is the officer's safety and the preservation of evidence. Id. at 29. The motion judge found that exigent circumstances existed simply because "[t]he car [was] on the side of the highway and the other occupants still remain[ed] with the car." The State also argued that exigency was created by the location of the vehicle along the side of a busy highway, in close proximity to a business establishment. The record evidence, however, does not support either the motion judge's conclusions or the State's argument.

Although at the time of the backseat search Gross and Daniels were not yet under arrest, and theoretically had the capacity to return to the vehicle to destroy or hide the thirty vials of PCP, the motion record reveals nothing more than raw conjecture that the evidence was in jeopardy. There were four police officers on the scene, and, except for defendant before he was thrown to the ground, the civilians were cooperative, if dissembling. There was no indication that other confederates of the occupants of the car were in the area, and there was nothing to suggest that tavern patrons were interested in or actually observed the events at the scene. Moreover, no one described the area as being a high-crime neighborhood. The "high traffic on the highway," as argued by the State, is a non sequitor.

The record reveals that the State utterly failed to prove that Cramer did not have time to call for a search warrant without compromising his safety and the preservation of evidence. We therefore conclude that the absence of exigent circumstances "vitiat[ed] invocation of the automobile exception." Id. at 32. Consequently, the thirty vials of PCP seized from the vehicle should have been suppressed.

We also view defendant's subsequent admission that he was responsible for all of the drugs to be derivative of the illegal search. We recognize that even at trial, defendant did not disavow the contraband found in his waistband. Indeed, at the scene of the motor vehicle stop, defendant acknowledged that his waistband harbored "only a bag of weed." Nevertheless, we are satisfied that a proximate factor motivating defendant to confess to the police was the exposure of his uncle to the fruits of the illegal search. As such, defendant's statements implicating himself were plainly linked to, and impelled by, the improper recovery of the thirty vials of PCP. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed.2d 441, 454 (1963); State v. James, 346 N.J. Super. 441, 453 (App. Div.), certif. denied, 174 N.J. 193 (2002). Accordingly, defendant's statements at police headquarters should not have been considered by the jury.

In light of these conclusions, we must still analyze the State's unsupported claim of mootness. That is, its view that the jury verdict bespeaks a rejection of the State's evidence of defendant's possession with intent to distribute the thirty vials of PCP. Since we cannot accurately explicate the jury verdict from the jury verdict sheet, we can only speculate why defendant was convicted of the lesser-included offense of possession of less than ten grams of PCP with the intent to distribute. We note that the grand jury's inelegant indictment did not distinguish the quantity of PCP found on defendant's person from the quantity found in the Styrofoam container in the backseat of the car. Thus, it is pure conjecture to deduce the nature of the jury's verdict, rendering the mootness argument inapplicable.

We further view the cumulative effect of the jury's improvident consideration of the thirty vials of PCP and defendant's confession (albeit recanted) as warranting a new trial. These errors were so significant that the possibility of producing an unjust result was "real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Although there is a plausible argument that the jury's conviction of defendant on the other charges were sufficiently unrelated (1) to the thirty vials of PCP and (2) to defendant's confession that they should remain intact, we cannot sever the effect of the jury's wrongful consideration of the proscribed evidentiary materials from its general verdict in a principled fashion.

"Our obligation is to ensure that defendant had a fair trial." State v. Jenewicz, 193 N.J. 440, 473 (2008). We are satisfied that the presentation of material information to the jury that it should never have considered casts substantial doubt over the reliability of the outcome achieved in these proceedings. See State v. Koskovich, 168 N.J. 448, 540 (2001); State v. Orecchio, 16 N.J. 125, 129 (1954). Consequently, we vacate the judgment of conviction, and reverse and remand for a new trial on all charges.

Since this matter must be retried, we need not address the balance of the arguments presented by defendant, except for one. Because defendant's claim that he was deprived of putative Brady^⁷ materials is likely to arise again during the remand proceedings, we elect to consider the issue.

Defendant filed a pretrial motion to compel discovery of "two years of tickets, warnings, arrests, and stops by Investigator Cramer, which involved the failure to keep to the right on the highway." Defendant intended to show that Cramer's initial stop was pretextual and based on the occupants' race. On August 15, 2008, the Law Division denied the motion "for failure of defendant to provide sufficient evidence to raise a colorable claim of selective enforcement." Relying onRule 3:13-3 and Brady for support, defendant now contends that the denial of his motion amounted to an abuse of discretion. The State maintains that defendant's claim of "selective enforcement" was unsubstantiated by the record and therefore the motion to compel discovery was properly denied.

We review the grant or denial of a motion to compel discovery on an abuse of discretion standard. State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201 N.J. 229 2010). Although discovery requests are to be liberally construed, "a reviewing court will 'normally defer to the trial court's disposition of discovery matters.'" Serrano v. Underground Utils. Corp., 407 N.J. Super. 253, 268 (App. Div. 2009) (quoting Spinks v. Twp. of Clinton, 402 N.J. Super. 454, 459 (App. Div. 2008)).

Although defendant couches his discovery demand as an innocuous request for evidence with which to merely impair the credibility of Cramer due to supposed bias, the essence of the demand is undergirded by a claim of selective enforcement. Successful claims of selective enforcement are almost always supported by police records, which demonstrate a policy or pattern of discriminatory enforcement in a particular geographic area. State v. Halsey, 340 N.J. Super. 492, 501 (App. Div. 2001), certif. denied, 171 N.J. 443 (2002). However, in order to obtain discovery of such records, a defendant must first demonstrate "'a colorable basis for a claim of selective enforcement.'" Ibid. (quoting State v. Kennedy, 247 N.J. Super. 21, 25 (App. Div. 1991)).^⁸ This test strikes a balance between the relevance and probative value of such records and "the privacy of other citizens and the State's legitimate need for confidentiality with respect to particular items." Kennedy, supra, 247 N.J. Super. at 35.

Specifically, "a defendant must present 'some evidence tending to show the existence of the essential elements of the defense and that the documents in the government's possession would indeed be probative of these elements.'" Halsey, supra, 340 N.J. Super. at 501 (quoting Kennedy, supra, 247 N.J. Super. at 32). The colorable basis test was further explained as follows:

The threshold test we adopt here constitutes a reasonable accommodation of competing values. A more lenient standard would encourage the assertion of spurious claims of selective enforcement as a means of burdening criminal trials with massive discovery of material completely irrelevant to the defendant's case. The "colorable basis" standard is nonetheless consistent with our Supreme Court's repeated exhortations that liberal pretrial discovery practice "promotes the quest for truth."

[Kennedy, supra, 247 N.J. Super. at 32 (quoting State in Interest of W.C., 85 N.J. 218, 221 (1981)).]

Notably, a defendant is not required to make out a prima facie case of selective enforcement, that is, "one that if unrebutted will lead to a finding of selective prosecution." Id. at 34. Rather, there need only be a colorable basis for the claim "'that a police agency has an officially sanctioned or de facto policy of selective enforcement against minorities.'" Halsey, supra, 340N.J. Super. at 501-02 (quoting State v. Smith, 306 N.J. Super. 370, 378 (App. Div. 1997)).

While defendant's proofs need not rise to the level of a prima facie case, "the burden to establish such a claim 'is a demanding one.'" Id. at 501 (quoting United States v. Armstrong, 517 U.S. 456, 463, 116 S. Ct. 1480, 1486, 134 L. Ed.2d 687, 698 (1996)). Defendant must, however, "show that similarly situated individuals of a different class were not prosecuted for similar crimes." Ibid.

Defendant has failed to meet this burden. There is not a shred of evidence in the record, much less credible evidence, which would support defendant's claim of selective enforcement against any police officer or law enforcement agency. In Smith, defendant affixed to his motion to suppress three years of municipal court logs, a six-year old report commissioned by the Public Defender's Office "indicating that from December 6 to December 12, 1988 between 9 a.m. and 4:15 p.m. five percent of the cars between exits eight and twelve on the New Jersey Turnpike contained black motorists in vehicles with out-of-state licenses plates," and miscellaneous newspaper articles in which the State Police discussed the effect to which they used profiles in effecting motor vehicle stops. Id. at 376-77. There, we held the supporting documentation to be "less satisfactory than was deemed 'marginally sufficient' in Kennedy," and denied defendant's motion to compel discovery. Id. at 377. Here, defendant has provided no evidence of either an officially sanctioned or de facto policy of racial targeting to support a colorable claim of selective enforcement. Therefore, the pretrial motion to compel discovery was properly denied.

Defendant's reliance on Brady is also misplaced. In that case, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1197, 10 L. Ed. 2d at 218. Here, defendant has produced no evidence of the existence of exculpatory evidence in the possession of the State to invoke Brady.

Reversed. The judgment of conviction is vacated and the matter is remanded for a new trial on all charges. We do not retain jurisdiction.

1 Count six of the indictment charged co-defendant, Vincent Daniels, with third-degree hindering apprehension by providing false information to a law enforcement officer, N.J.S.A. 2C:29-3(b). Daniels was tried separately; the record is silent as to the disposition of Daniels' case.

2 Defendant did not file a pro se brief.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).

4 Defendant and Daniels were also charged with hindering apprehension for giving Cramer false information about their true identities.

5 According to defendant, "wet" is a slang term for PCP.

6 The State's brief cites no legal authority for its mootness argument. Cf. State v. Pickett, 241 N.J. Super. 259, 265 (App. Div. 1990) (errors relating to counts for which defendant was acquitted are rendered moot). Unfortunately, because the State placed so much stock in its unsupported mootness argument it did not brief the issue of the validity of the search and seizure of the thirty vials of PCP.

7 Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 10 L. Ed.2d 215, 218 (1963) ("Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.").

8 "[T]he discovery threshold [in selective enforcement cases] is the same in all cases regardless of the police agency involved." Halsey, supra, 340 N.J. Super. at 503.

STATE VS. RAYMOND MALDON A-1473-09T1

2011-10-27T16:04:00.001-07:00

STATE VS. RAYMOND MALDON A-1473-09T1

Defendant presented legally competent evidence that (a) his attorney misinformed him that his guilty plea to criminal sexual contact could not result in his later civil commitment under the Sexually Violent Predator Act, and (b) he would have insisted on going to trial if he had been correctly advised. Defendant filed the PCR petition immediately after he was civilly committed based, in part, on his guilty plea in this case. Mistakenly finding that defendant was uninformed rather than misinformed, and concluding that his claim was barred because it arose prior to State v. Bellamy, 178 N.J. 127 (2003), the trial judge denied the petition. Because the petition involved emerging legal issues, and defendant presented a prima facie case on both Strickland prongs, we concluded that the case should be decided based on a complete record and remanded the matter for an evidentiary hearing. 10-27-11

STATE VS. GEORGE R. MELENDEZ A-0640-08T4

2011-10-27T16:02:00.000-07:00

STATE VS. GEORGE R. MELENDEZ A-0640-08T4

Relying on the public safety exception in New York v. Quarles, 467 U.S. 649, 655-56, 104 S. Ct. 2626, 2631, 81 L. Ed. 2d 559, 557 (1984), and State v. O'Neal, 190 N.J. 601, 618 (2007), the trial court admitted inculpatory statements defendant gave in response to officers' questions about the location of the handgun he used to kill his wife. Defendant was in custody and had invoked his right to counsel.

Assuming the claimed "public safety" meets the criteria in State v. Stephenson, 350 N.J. Super. 517, 525 (App. Div. 2002), we are persuaded by the reasoning in United States v. DeSantis, 870 F.2d 536, 541 (9th Cir. 1989), and hold that the same "exigent circumstances" that permit the pre-Miranda interrogation of a defendant, permit the police to question a defendant after he or she has invoked the right to counsel.Pursuant to Stephenson, we hold there was an insufficient basis to apply the public safety exception. We affirm, however, because the trial court correctly found defendant waived his right to counsel, independent of the initially tainted interrogation. 10-26-11

STATE OF NEW JERSEY VS. JOSEPH DIORIO A-4981-07T4

2011-10-22T08:35:00.000-07:00

STATE OF NEW JERSEY VS. JOSEPH DIORIO A-4981-07T4

We affirm defendant's convictions for his role in a planned bankruptcy, also known as a "bust-out" scheme. We find that the indictment was returned within the statute of limitations period because the theft by deception was not completed until the contractual period for repayment had ended, not when the goods were received. Additionally, we reject defendant's argument that an oral plea agreement existed. 10-20-11

STATE v. ARTHUR T. CHESTER, III conviction on de novo reversed and remanded where law division did not make findings

2011-10-13T06:15:00.000-07:00

STATE

v. ARTHUR T. CHESTER, III conviction on de novo reversed and remanded where law division did not make findings

DOCKET NO. A-1942-10T4

Submitted September 14, 2011 - DecidedOctober 11, 2011

Before Judges Graves and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Municipal Appeal No. 06-10.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM Defendant Arthur T. Chester, III appeals his conviction for

driving while intoxicated on December 22, 2008, N.J.S.A. 39:4- 50. He filed a motion to suppress, alleging that the motor vehicle stop was unconstitutional. The municipal court judge denied the motion to suppress, finding that the 4:45 a.m. stop

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1942-10T4

of defendant's car at a security checkpoint to a nuclear plant in Lower Alloways Creek was constitutional. Although defendant's brother testified that he, rather than defendant, drove the car, the municipal judge concluded that defendant was the driver. Defendant stipulated that he was under the influence of alcohol. Testing revealed a .14 blood alcohol content.

Defendant was again found guilty after a trial de novo in the Law Division, conducted by agreement on the papers without oral argument.

On appeal, defendant raises the following arguments: POINT I

THE STATE DID NOT CARRY ITS BURDEN OF PROVING THAT THE MOTOR VEHICLE STOP AND SEIZURE WAS LAWFUL.

POINT II

THE STATE FAILED TO PROVE THAT DEFENDANT OPERATED THE MOTOR VEHICLE.

1. The stop of the defendant was supported by reasonable suspicion based on the totality of the circumstances.

A-1942-10T4

2. The State did prove beyond a reasonable doubt that the defendant operated the motor vehicle while intoxicated; therefore the defendant's appeal is DENIED.

A-1942-10T4

(citing State v. Johnson, 42 N.J. 146, 162 (1964)). We "consider only the action of the Law Division and not that of the municipal court." Id. at 175-76 (citing State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)).

We therefore remand this matter to the Law Division to make findings of fact and conclusions of law.

Reversed and remanded.

A-1942-10T4

E. M., v. G. M. No DV if no purpose to harass

2011-10-09T04:25:00.000-07:00

E. M., v. G. M.

No DV if no purpose to harass

___________________________________

September 15, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4952-09T2

Decided

Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex

County, Docket No. FV-12-1777-10.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

(Central Jersey Legal Services, Inc., attorneys;

Ms. McCue, on the brief).

PER CURIAM

Defendant G.M. appeals from a final restraining order (FRO) issued by the Family Part pursuant to a complaint filed by plaintiff E.M. under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. After considering the evidence presented at trial, the court found defendant committed the predicate offense of harassment. The court also found that the issuance of final restraints was necessary to prevent future abuse.

Defendant argues that the evidence presented at trial does not support a finding of harassment under N.J.S.A. 2C:33-4(c). We agree and reverse.

The parties are married[1] and have two daughters ages five and two. The incident that gave rise to this litigation occurred on January 25, 2010, at approximately eight o'clock in the morning. According to plaintiff, defendant came into the bedroom where she had been sleeping and "snatch[ed] the covers off of [her] and pulled [her] out of bed." Plaintiff described defendant's demeanor as "like he was ready to do [her] in . . . ." Plaintiff testified defendant then "proceeded to push [her] out of the bedroom."[2] She prevented defendant from pushing her down the steps by going into the bathroom.

From this point, plaintiff testified she was "holding on for dear life" because defendant allegedly tried to pull her "any way he could, [by her] neck, hair, arms with two hands to get [her] out of the bathroom to tell [her], come on let's go downstairs." When defendant was unable to get plaintiff out of the bathroom, he allegedly pushed her and she "fell back . . . in the bathroom" and "hit" her head against the bathtub. According to plaintiff, at the point when it looked to her as if defendant "was getting ready to strike [her]," one of their daughters came out of the bedroom crying. Defendant immediately went over to comfort the child and ceased his attack on plaintiff.

Plaintiff testified that she and defendant remained in the house together for the entire day without further incident. She kept mostly to herself in the upstairs part of the house, while defendant remained downstairs. Plaintiff did not call the police nor seek a temporary restraining order at the time. The next day, January 26, 2010, plaintiff left her house with the two girls and moved into a "temporary protective shelter," where she remained up to the date this matter came to trial on May 13, 2010.

Plaintiff did not file a domestic violence complaint against defendant until February 18, 2010. The complaint alleged simple assault, N.J.S.A. 2C:12-1(a), and harassment, N.J.S.A. 2C:33-4(c), as the predicate offenses for the relief sought. When her attorney asked why she waited twenty-four days after the incident to seek judicial relief, plaintiff gave the following response:

PLAINTIFF: Well, I finally mustered the courage to go out on my own -- to proceed to do that. Prior to that, I've been getting rides to all my appointments, even court ordered appointments, they schedule . . . persons to pick me and my girls up from DYFS[3] to take us to the girls appointments, to my appointments. And they finally . . . indicated that I needed to possibly start driving, you know my own because they knew I was going to file the restraining order.

PLAINTIFF'S COUNSEL: Okay. So from . . . January 26^th [2010] until actually, now you've been in . . . a shelter?

PLAINTIFF: Yes. I'm still there now.

PLAINTIFF'S COUNSEL: And during that time [twenty-four days] what prevented you from going sooner to get a restraining order?

PLAINTIFF: Well, the main thing was my girls. I mean because as early as November he indicated he had [an] unregistered gun, he didn't mind going to jail, he's ready to die. And I knew I had to -- as much as possible, although I was -- starting to put me in distress, I knew I had to be there for the girls. I tried to keep a distance but at some point, you know he feels he can do whatever he wants to do and you know, and push boundaries. So, when it came [to] a point where [it trickled] down to my girls, I had to make a move that the emotions really was just overwhelming.

PLAINTIFF'S COUNSEL: Okay. I'm just asking you what prevented you from going sooner? Just a brief answer.

PLAINTIFF: Well, I seen and I've heard of even worse situations but when it came to me having to be a responsible parent, I -- I was even more moved to make a move to --

PLAINTIFF'S COUNSEL: Okay. Listen.

PLAINTIFF: To be in a safe environment.

PLAINTIFF'S COUNSEL: Okay. So, what took you so long from January 26^th [2010] until February 18^th [2010] to get your restraining order?

PLAINTIFF: Well, like I said — I finally got the courage to go out on my own to do it.

PLAINTIFF'S COUNSEL: So, you're saying before then —

PLAINTIFF: I came on my own — before then.

PLAINTIFF'S COUNSEL: You did not have the courage to go out on your own?

PLAINTIFF: No, I did not. I was afraid.

Further questioning revealed that, along with DYFS's assistance, plaintiff had a van available to her "parked outside" that she could have used to drive to the courthouse.

In addition to the two predicate offenses, the domestic violence complaint alleged past incidents of domestic violence. Generally, the complaint alleged that defendant "was always verbally abusive," which began to escalate to physical violence. The complaint further noted that "[p]olice have been called in the past." Specifically, the complaint mentioned an incident in 2007 that occurred while plaintiff was pregnant when defendant allegedly held plaintiff by the neck, causing "scratches."

On March 4, 2010, with the assistance of counsel, plaintiff amended the initial complaint to include several more incidents of past domestic violence: (1) in July 2009, defendant "pulled the plaintiff down four steps and then got on top of her and held her down because she had stayed with a relative overnight"; (2) in June 2009, defendant "pushed the plaintiff down on the ground for the same reason"; (3) on October 18, 2006, defendant pulled plaintiff's arm, raised his arm in a menacing manner, and verbally threatened her by insinuating he would stab or shoot her; (4) in December 2004, defendant grabbed plaintiff's hand and cut off her engagement ring during an argument; and (5) in 2003 or 2004, defendant pulled plaintiff's legs out from under her, causing her to fall and strike a dresser. Plaintiff attempted to elaborate at trial as to these alleged past incidents of domestic violence. As the trial judge noted, however, plaintiff's testimony in this respect was evasive, confusing, and at times incomprehensible. She was consistently non-responsive to the questions posed by her own counsel.

On cross-examination, defense counsel confronted plaintiff with a police report indicating that she had called the police on January 26, 2010, the day after the alleged assault, to accuse defendant of sexually molesting their daughters. The report does not mention, however, any incident of domestic violence committed by defendant against plaintiff. Plaintiff could not explain why she did not tell the police that defendant had assaulted her the previous day. Plaintiff also indicated that she had not filed a domestic violence complaint or sought police assistance for any of the alleged past incidents of domestic violence described in her pleadings, thus calling her credibility into question.

Defendant denied he assaulted plaintiff on January 25, 2010, labeling it "a fabrication." According to defendant, on the Friday before the alleged January 25, 2010 incident, plaintiff and he had plans to go to his brother's house in Maryland to watch a football game. Defendant had purchased steaks and seafood to take to his brother's house. The couple had agreed to leave around two o'clock in the morning.

That evening, plaintiff and defendant's other brother, J.M., who also resided in the marital home, left the house to buy supplies and personal toiletries for plaintiff. Some time later, J.M. returned without plaintiff, who did not return to the marital residence until three o'clock Sunday morning "wreaking of alcohol and smoke." Defendant told plaintiff he did not want to share a bed with her in this condition, and told her to take a shower. She eventually complied and was remorseful about her prolonged, unexpected absence.

Defendant testified he kept his distance from plaintiff the rest of that day. Because the Maryland trip had not taken place, defendant decided to grill the steaks and seafood and share them with J.M. Plaintiff became upset at defendant when he and J.M. ate the food without sharing it with her. According to defendant, he deliberately decided not to cook for plaintiff because he was still angry about her two-day absence. He claims he did not have any interaction with plaintiff for the remainder of the day.

When defendant left for work the following day, Tuesday, January 26, 2010, he took the keys to the family van because he did not want plaintiff driving around with the children. When he returned home at the end of the work day, the van was gone, together with plaintiff and the two girls. At first, defendant thought the van had been stolen. When he called plaintiff to inquire, however, she told him she had taken the van[4] and was in a hospital with the girls. It was at this time that defendant learned plaintiff had reported to DYFS that he was sexually molesting his daughters.[5]

J.M. testified on defendant's behalf. He corroborated defendant's account of what occurred on Friday night and during the day on January 25, 2010. He saw his brother and sister-in-law arguing about breastfeeding one of the girls. According to J.M., his brother was concerned about plaintiff "hanging out" that weekend and how her consumption of alcohol might affect the quality of the breast milk. Although he witnessed "very loud yelling back and forth," J.M. did not see any physical confrontation.

On cross-examination, J.M. testified about an incident in November 2007 in which the police responded to an altercation between plaintiff and defendant. Plaintiff had testified earlier that this incident involved an argument between herself and the defendant over a problem with the washing machine. J.M. testified that he separated the two, "restraining both of them . . . ." According to J.M., defendant held plaintiff by her wrists to prevent her from striking him. J.M. was also asked about an incident in October 2006 when the police again responded to an argument between the parties. Once again, J.M. described his role as separating the two, without expressing an opinion as to who was to blame.

Against this record, the trial judge found plaintiff did not prove, by a preponderance of the evidence, that defendant assaulted her on January 25, 2010. The court made the following preliminary findings in support of this ruling:

The issues before the court essentially boil down to credibility findings. The Court has certainly had the opportunity to observe both of the parties, as well as the witness on behalf of the defendant, who was his brother [J.M.]. And in making some determinations with credibility the plaintiff for example tended to be rambling in her responses, she was not responsive in her responses. Both are indicative of . . . a lack of credibility.

The court found plaintiff's testimony evasive and rambling, despite "being told several times by the court that it's necessary for her to be responsive to the questions that are being asked." The court also found defendant's testimony to be "similarly lacking in credibility." The judge focused on defendant's statement that his wife did not "deserve[ ] . . . to have any steak," and his refusal to allow his wife access to the keys to the van, finding his behavior "indicative of somebody that's — [somewhat] of a controlling nature." In short, the court found serious credibility problems with both parties' account of events.

Despite this evidentiary void, the court found defendant engaged in the predicate act of harassment, as defined in N.J.S.A. 2C:33-4(c). The court articulated its findings in this respect in a supplemental written opinion filed pursuant to Rule 2:5-1(b). The court first described the statutory elements on harassment under subsection (c):

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

. . .

(c) Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4(c).]

The court found that "a combination of four factors" established defendant "committed an act of harassment." These four factors were: (1) the October 2006 incident; (2) the November 2007 incident; (3) defendant's refusal to cook plaintiff the steak on January 25, 2010; and (4) defendant's refusal to give plaintiff the van keys the following day. The court then cited H.E.S. v. J.S.C., 175 N.J. 309, 327 (2003), for the proposition that a purpose to harass may be inferred from the totality of the evidence presented. With this legal principle as a backdrop, the court concluded that "the cumulative effects of the Defendant's actions . . . gave rise to a determination that he intended to harass the Plaintiff."

III

Our standard of review requires us to uphold a trial court's findings provided they are supported by adequate, substantial, and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The need to defer to the trial court's findings is even more acute "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997) (citation omitted). Thus, we will not disturb the "factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . ." Rova Farms, supra, 65 N.J. at 484 (internal quotation marks and citation omitted). Finally, our Supreme Court has also recognized that Family Part judges have "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998).

In her initial complaint, plaintiff alleged she was brutally assaulted by defendant in her own bedroom, while their two young daughters slept in a nearby room. She spent the remainder of the day in the marital residence with defendant. The following day, plaintiff left the marital residence with her daughters and took refuge in a shelter for victims of domestic violence, where she resided up to the date of trial for the FRO. That same day, plaintiff called the police and accused defendant of sexually molesting his two daughters. She did not mention to the police the assault that had allegedly occurred the previous day.

With the assistance of competent counsel, plaintiff amended her initial complaint to further allege a history of domestic violence expanding over seven years. The pleadings described a series of violent episodes through which plaintiff was repeatedly assaulted by defendant, requiring the intervention of the police on at least two occasions.

Unexamined, these allegations paint a picture of a harrowing ordeal of violence and emotional terror. The court found and the record reflects, however, that plaintiff's testimony was evasive and unresponsive, even when responding to her own attorney's questions on direct examination. Through the rigor of cross-examination by defense counsel, as well as the court's own independent observations and assessments, plaintiff's account of events proved to be less than credible.

The court thus found plaintiff did not prove, by a preponderance of competent and credible evidence, that defendant committed the predicate offense of simple assault, as defined in N.J.S.A. 2C:12-1(a). That decision is not challenged on appeal. The court also did not find credible plaintiff's allegations of a history of domestic violence at the hands of defendant.

Despite these well-founded reservations concerning plaintiff's credibility, the court found defendant committed domestic violence based on the petty disorderly persons offense of harassment, as defined in N.J.S.A. 2C:33-4(c). This finding is not supported by the record. The court relied on four separate incidents that, when viewed in the totality of the circumstances, it found amounted to harassment. This conclusion is not legally sustainable.

The first incident relied on by the court to find harassment occurred in October 2006. According to defendant's brother J.M., he restrained both parties to prevent them from "going at each other." Defendant was yelling at plaintiff and "keeping her at bay" and holding her by the wrists "because she seemed out of control." The police responded to the scene. No arrests were made and plaintiff did not seek a temporary restraining order.

The second incident relied on by the court to support a finding of harassment occurred in November 2007. Plaintiff testified that during an altercation, defendant grabbed her by the wrists, causing some scratching. Defendant denied the allegation. J.M. testified that he was forced to separate the parties because defendant, not plaintiff, "got scratched in the face." The police again responded to the scene. No one was arrested or charged with a domestic violence offense.

The third incident relied on by the court occurred on January 25, 2010. On this date, defendant had purchased steaks and seafood which he intended to grill during a family trip to Maryland. When plaintiff returned to the marital residence that evening, after being away for two days, defendant grilled steaks for himself and his brother, but refused to cook for plaintiff. The court characterized defendant's action as "condescending" and "indicative of a superiority attitude."

The final incident occurred the following day, January 26, 2010. According to defendant, he took plaintiff's keys to the van after she returned home after being away for the weekend. Defendant did this because he did not want plaintiff to drive around with the children or "hang out with her drug friends." Defendant testified he had taken the keys on other occasions when plaintiff had gone away for three or four days at a time. The court characterized defendant's conduct here as "spiteful" and "one additional example of his efforts at seriously annoying the Plaintiff."

Under N.J.S.A. 2C:33-4(c), a person commits the petty disorderly persons offense of harassment if he engages in a course of alarming conduct or repeatedly committed acts with the purpose to alarm or seriously annoy another person. The key element of this offense is evidence showing a purpose to harass. State v. Hoffman, 149 N.J. 564, 576 (1997). As our Supreme Court has recently held:

[H]arassment is the predicate offense that presents the greatest challenges to our courts as they strive to apply the underlying criminal statute that defines the offense to the realm of domestic discord. Drawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of "ordinary domestic contretemps" presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application.

[J.D. v. M.D.F, ____ N.J. ____, _____ (2011) (slip op. at 17-18) (internal citations omitted).]

Here, the four incidents relied on by the court are devoid of evidence showing defendant's purpose was to harass plaintiff. The incidents involving defendant's refusal to cook plaintiff a steak and taking away the van keys clearly fall within the category of "ordinary domestic contretemps." Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995). The 2006 and 2007 incidents were not listed in support of the predicate offenses in the complaint. Their role should have been restricted to the secondary determination of whether a restraining order is necessary to prevent future abuse. Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006).

Finally, there is no competent credible evidence to find that final and permanent restraints are necessary to protect plaintiff from future abuse. Ibid. The court's rejection of plaintiff's account of physical abuse at the hands of defendant as not credible directly undermines any need for an FRO.

Reversed.

[1] Although they have been married for only five years, plaintiff testified that she and defendant "have been together" for approximately sixteen years.

[2] Although their young daughters were sleeping in their room nearby, plaintiff testified they were not awakened by the incident because defendant closed the door to the girls' bedroom. Plaintiff claimed this gesture by defendant was indicative of his pattern of hiding his violent conduct from witnesses, including their daughters.

[3] Division of Youth and Family Services.

[4] Although not clear from the record, it appears plaintiff had her own set of keys to the van, because defendant testified he took the keys to the van when he left for work on Tuesday, January 26, 2010.

[5] The record before us does not disclose the status of the DYFS investigation. The only oblique reference to this issue is found in the following remark made by defense counsel during his summation: "The DYFS proceedings . . . have taken a toll on [defendant.] He's now only granted supervised visitation to see his children."

STATE v MARK DAVID CARLSON digital data dwi

2011-10-08T19:51:00.000-07:00

STATE v MARK DAVID CARLSON,

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0772-10T1

____________________________________________

September 14, 2011

Submitted April 12, 2011 - Decided

Before Judges Baxter and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 61-2009.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

PER CURIAM

Defendant Mark Carlson appeals his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after a trial de novo in the Law Division. After a careful review of the record and the contentions of the parties, we affirm the Law Division judge's denial of defendant's motion to suppress the evidence of intoxication and remand for a hearing on defendant's discovery request.

The record reveals the following undisputed facts. On March 26, 2009, at 11:21 p.m., Police Officer Leonard Thomas observed defendant as he drove in the Borough of Princeton. While on Wiggins Street, the officer observed defendant's vehicle travel over the center double yellow line for approximately thirty feet with the left tires about one foot in the oncoming lane. Other than the vehicles of defendant and the officer, there were no other vehicles or objects on the road.

After proceeding about one thousand feet, defendant turned onto Moore Street. While traveling on Moore Street, defendant drove partially in the driving lane and partially over marked parking stalls on the right side of the street. No center dividing line is painted on Moore Street. The officer first turned his video camera on when he viewed defendant driving over the marked parking stalls.

After defendant turned at the next block, the officer pulled him over. Subsequently, the officer arrested defendant and brought him to the police station. There, defendant participated in a breathalyzer test with an Alcotest, which measured defendant's blood alcohol concentration (BAC) as .13. Defendant received traffic summonses for driving under the influence of alcohol, N.J.S.A. 39:4-50, driving under the influence in a school zone, N.J.S.A. 39:4-50(g), failure to keep right, N.J.S.A. 39:4-82, failure to maintain a lane, N.J.S.A. 39:4-88(b), and reckless driving, N.J.S.A. 39:4-96.

Defendant filed a motion in municipal court seeking to suppress evidence of his intoxication on the basis that the officer did not have a reasonable and articulable suspicion to make the stop. On June 4, 2009, the municipal court judge heard and denied defendant's motion.

On July 9, 2009, the municipal court judge entered a discovery order at the request of defendant with the consent of the prosecutor. The order required the State to provide, among other items,

For Alcotest 7110 ser. no. ARUM-0054 used to test Defendant's breath: All sequentially numbered files in the random access memory and downloaded to read only memory (including alcohol influence report, calibration, control, linearity, solution change, and any and all other tests) for all calibration cycles, including the calibration cycle of which Defendant's breath tests are part, in a digital format readable in a program generally available to consumers in the open market.

The prosecutor told the judge that the State would have no problem producing the ordered information, because it was routinely provided. At the August 13, 2009 hearing, the State had not yet provided complete information, and the prosecutor again represented that he would provide it soon. Defense counsel, on September 21, 2009, in a motion to suppress the results of the Alcotest for failure of the State to provide discovery, wrote:

While the State provided downloaded data for alcohol influence reports and solution changes during the calibration cycle in which Mr. Carlson's breath was tested, it has not provided and downloaded data for calibration, control, linearity, and any and all other tests for that cycle. As for other calibration cycles, the State has provided no data at all. Consequently, Mr. Carlson's ability to review data supposedly supporting the reliability of his breath test result and the operability of the Alcotest used to test his breath has been denied.

On the day of the trial, September 24, 2009, defendant argued that the results of the Alcotest should be inadmissible because "there's been a discovery failure in this case." The prosecutor stated, "I just showed up here today so . . . I cannot represent the ex[tent] of what's been supplied. But I am told that the downloaded information has been supplied." After conferring with the Borough police department, the prosecutor represented that the police department had supplied everything in its possession. Defense counsel argued:

When the prosecutor says that they've supplied downloaded information, he's referring to the entered solution change and Alcohol Influence Report information that's within the custody and control of the Princeton Borough. But he's not making a representation as far as the State Police or Attorney General's Office, is that correct?

. . . .

I've made my representation about what was received and I do make that representation to the Court. We have the solution change, Alcohol Influence Report, and header information, but not the calibration, control or linearity.

In denying defendant's motion, the municipal judge held:

I don't feel that this is a material non-compliance from the order signed . . . on July 9^th. And part of that is because . . . I'm satisfied that the Chun foundational documents were supplied. These are not those documents. I'm satisfied that the State has provided you with all the documents that are available. . . . I'm not convinced that I understand how this becomes vital and material and exculpatory to this defendant.

Defendant then pled guilty to the reckless driving charge. Under the plea agreement, the State dismissed the charges for failure to keep right and failure to maintain a lane. Defendant lost his driving privileges for three months and paid court costs and fees.

That same day the municipal court judge held a trial on the DWI charges. The court found a per se violation of N.J.S.A. 39:4-50 based solely on the Alcotest BAC reading of .13. The court suspended defendant's driver's license for seven months, required him to attend the Intoxicated Driver Resource Center for 12 hours, and assessed court fines and costs. The State dismissed the charge for DWI in a school zone.

Defendant filed an appeal de novo to the Law Division, which was heard on June 28, 2010. Defendant again argued that the vehicle stop was an unreasonable seizure and that the failure to provide discovery amounted to an unconstitutional withholding of exculpatory evidence. While acknowledging that the State had provided the requisite foundational documents, defendant stated that the downloads of the calibration, control and linearity data logs had not been provided. Defense counsel represented to the court that the electronic downloads contained data in addition to that provided in the written documents, including "certain areas of information, some no less significant than the results of internal diagnostics, that are done by the machine by itself to make sure it's working, that are not disclosed on those paper documents."

On the other hand, the prosecutor argued that the State had established the reliability of defendant's Alcotest results. He explained that "those data logs are only deleted after . . . the pertinent information is downloaded from those data logs and handed over in discovery." The prosecutor represented to the court that all data logs had been printed and provided to defendant. Nevertheless, the prosecutor acknowledged that he did not know if defense counsel's statement that the downloads contained more information than the printed documents was true or not but noted that defendant had provided no expert testimony to support his claim. The prosecutor argued that substantial compliance with the discovery order had occurred because the request for downloads of data was duplicative of the documents already provided.

On August 24, 2010, the Law Division judge issued a written decision. First, he found that the officer had reasonable and articulable suspicion that a motor vehicle violation had occurred sufficient to justify stopping defendant and investigating the basis for his deviation from his lane of travel. Next, the judge declined to suppress the results of the Alcotest for failure to provide discovery. He reasoned that all the requisite foundational documents had been provided and the requested data download had been provided in written form. The judge held that defendant failed to provide proof that the omitted data could have affected the admissibility of the test results and failed to show any prejudice to his case. The judge also found that although defendant alleged that the evidence had been destroyed in bad faith, he provided no facts to support this assertion. In addition, the judge denied defendant's request for a jury trial.

Consequently, the judge found defendant guilty of DWI under N.J.S.A. 39:4-50 and imposed the same sentence as the municipal court. Defendant then filed this appeal.

On appeal defendant argues:

I. This court should suppress the fruits of the state's unconstitutional stop of defendant's motor vehicle.

II. The state's failure to provide underlying data and documentation renders the Alcotest result here unreliable and inadmissible.

a. The court must protect a defendant's rights, especially in light of the Alcotest instrument's recognized short-comings.

b. The state concealed material, relevant, exculpatory evidence.

c. Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

d. The failure of the process in this matter was so blatant, the denial of the fundamental fairness was so great, and the integrity of the judicial process so crippled, as to warrant dismissal.

III. To preserve the record, defendant asserts his right to a jury trial, given the legislature's packing of penalties for DWI.

Municipal court decisions are appealed first to the Law Division of the Superior Court. State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003) (citing State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972)). When the appeal is from municipal court to the Law Division, the review is de novo on the record. R. 3:23-8. The function of the Law Division judge is to decide the case anew on the record made in the Municipal Court, giving due, although "'not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses.'" State v. Kashi, 180 N.J. 45, 48 (2004) (quoting State v. Johnson, 42 N.J. 146, 157 (1964)); see R. 3:23-8(a). The issue for this court on an appeal from a trial de novo is "'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence presented in the record.'" State v. Segars, 172 N.J. 481, 488 (2002) (citing State v. Barone, 147 N.J. 599, 615 (1998)). However, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

Initially, defendant contends that, as the police lacked a reasonable basis for stopping his vehicle, the stop violated his constitutional rights. "The Fourth Amendment prohibits unreasonable searches and seizures by the Government," United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740, 749 (2002) (internal quotations and citations omitted), but permits seizures where there is an "articulable suspicion that the person has been, is, or is about to be engaged in criminal activity." United States v. Place, 462 U.S. 696, 702; 103 S. Ct. 2637, 2642; 77 L. Ed. 2d 110, 118-19 (1983) (citation omitted). Such seizures are commonly called "Terry stops," and "'[a] traffic stop is analogous to a Terry stop.'" United States v. Ruesga-Ramos, 815 F. Supp. 1393, 1397 (E.D. Wash. 1993) (citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334 (1984)). Consequently, the police must have a reasonable and articulable suspicion that defendant was violating the law. State v. Golotta, 178 N.J. 205, 212-13 (2003); State v. Davis, 104 N.J. 490, 500 (1986).

Reasonable suspicion is less than probable cause. Golotta, supra, 178 N.J. at 213; Davis, supra, 104 N.J. at 501. Reasonable suspicion in the traffic context requires a "particularized and objective basis" for believing that the motorist is or was committing a traffic violation. Davis, supra, 104 N.J. at 501. While Article I, paragraph 7 of the New Jersey Constitution may provide additional protections against unreasonable searches and seizures, id. at 502, the observation of a motor vehicle violation is sufficient to constitute a reasonable, articulable suspicion and justifies an investigatory stop. State ex rel. D.K., 360 N.J. Super. 49, 54 (App. Div. 2003). Traffic violations such as lane violations can justify a vehicle stop. See State v. Washington, 296 N.J. Super. 569 (App. Div. 1997).

Although the State must demonstrate by a preponderance of the evidence that a reasonable, articulable suspicion existed at the time of the stop, it is not required to prove that the violation actually occurred. D.K., supra, 360 N.J. Super. at 54 (citing State v. Williamson, 138 N.J. 302, 304 (1994)); Pineiro, supra, 181 N.J. at 19-20. In determining whether, by a totality of the circumstances, there was a reasonable, articulable suspicion, all circumstances known to the police officer must be considered by the court. Davis, supra, 104 N.J. at 501. Abnormal operation of a motor vehicle may provide a reasonably objective basis to justify a stop. See State v. Cummings, 184 N.J. 84, 89 (2005)(stop justified for crossing the center line); State v. Widmaier, 157 N.J. 475, 481-82 (1999)(stop justified for crossing center line, no turn signal and skidding); State v. Stever, 107 N.J. 543, 546, cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987)(stop justified for crossing center line twice).

Here the underlying traffic offenses asserted by the officer were failure to keep right, N.J.S.A. 39:4-82[1], failure to maintain a lane, N.J.S.A. 39:4-88(b)[2], and reckless driving, N.J.S.A. 39:4-96. On the day of the scheduled trial, defendant, admitting that he had been driving recklessly, pled guilty to N.J.S.A. 39:4-96. Defendant argues that the State did not have the requisite reasonable and articulable suspicion to justify the stop of his vehicle. We disagree.

In the instant case, it is undisputed that defendant crossed the double yellow lines for 30 feet. By crossing over the double lines into the lane for oncoming traffic, he failed to drive "on the right half of the roadway . . . as closely as possible to the right-hand edge or curb of the roadway." N.J.S.A. 39:4-82. As a result, the officer had reasonable suspicion that defendant violated N.J.S.A. 39:4-82, failure to keep right. Under the totality of the circumstances, including the lateness of the hour, the failure to keep right and the subsequent straddling of the driving lane and parking stalls, we agree with the Law Division judge's ruling that the police officer was justified by a reasonable, articulable suspicion to pull over the vehicle to determine the basis for defendant's deviation from the right lane. Accordingly, we affirm the Law Division judge's denial of defendant's motion to suppress.

We next turn to defendant's argument that the State's failure to provide the electronic downloads of certain documents made available in discovery renders defendant's Alcotest result unreliable and inadmissible.

Rule 7:7-7 governs discovery in municipal court. In "all cases involving a consequence of magnitude . . . relevant discovery substantially similar to that enumerated in Rule 3:13-3(b) shall be provided on written notice to the municipal prosecutor." R. 7:7-7. The consequence for a DWI conviction in New Jersey is considered "a consequence of magnitude to which the discovery rule applies." State v. Maricic, 417 N.J. Super. 280, 283-84 (App. Div. 2010)(citations omitted).

The discovery permitted in drunk driving cases includes "all the relevant materials listed in the 11 categories enumerated in R. 3:13-3(a)." State v. Ford, 240 N.J. Super. 44, 47 (App. Div. 1990). However, "'[u]nlike discovery in civil cases, information cannot be demanded which merely leads to other information which is "relevant."'" Maricic, supra, 417 N.J. Super. at 284 (citing Ford, supra, 240 N.J. Super. at 48). Thus, while defendant has a right to complete discovery, "allowing a defendant to forage for evidence without a reasonable basis is not an ingredient of either due process or fundamental fairness in the administration of the criminal laws." Ibid. (internal citations omitted).

On appeal, defendant argues that by failing to produce the downloaded data logs for calibration, control and linearity, the State prevented defendant from gaining access to "critical files necessary to understanding the instrument's operability." Additionally, he argues that the State's failure to establish the statewide database the Supreme Court ordered in State v. Chun, 194 N.J. 54, 151-152 (2008), shows that the State intentionally lost exculpatory evidence.

Further, defendant argues that the failure to provide the downloaded material is a due process violation that must result in either the dismissal of the charge or the exclusion of the Alcotest evidence. "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215, 218 (1963). Material evidence must "both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984); see also State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000). Where the prosecution fails to provide requested information, reversal may be required if the suppressed evidence "'might have affected the outcome of the trial.'" State v. Knight, 145 N.J. 233, 246 (1996), certif. denied, 170 N.J. 205, (2001)(citing United States v. Agurs, 427 U.S. 97, 104, 96 S. Ct. 2392, 2398, 49 L. Ed. 2d 342, 350 (1976)).

The State counters that all the mandatory foundational documents were produced in discovery but acknowledged that the data logs for the calibration, control and linearly function files were not provided in electronic form. However, the State insists that the information provided to defendant in written form was the identical information. The State denies that clearing the memory of three fields after the pertinent information is reduced to written form and handed over to defendant constituted destruction of exculpatory evidence. Moreover, since defendant obtained comparable evidence by other means, and none of that evidence proved exculpatory, the State argues that the cleared data could not have been exculpatory.

A brief review of applicable law on the admissibility of Alcotest results will provide a necessary framework to our analysis. After an extraordinarily thorough investigation and painstaking analysis of the Alcotest device for measuring BAC, our Supreme Court held that the Alcotest, utilizing New Jersey Firmware version 3.11, is "generally scientifically reliable," subject to certain conditions established by the Court. Chun, supra, 194 N.J. at 65. In order for the results of the Alcotest to be admitted into evidence, the State must establish three things: "(1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure." Id. at 143 (citing Romano v. Kimmelman, 96 N.J. 66, 81 (1984)). To this end, the Court mandated that the State must disclose in discovery twelve "foundational" documents. Id. at 148. In order to insure that the State met the requirements for determining that the Alcotest device was working properly in a particular case, the Court required that in every case the State must enter into evidence at trial three core foundational documents.[3] Chun, supra, 194 N.J. at 154.

However, the Court determined that it was not necessary to admit into evidence the other foundational documents to establish the admissibility of the Alcotest results because these documents were mainly "tests of tests," and "not fundamentally a part of demonstrating that a particular machine was in good working order." Id. at 144-45. Nonetheless, the Court ordered all foundational documents to be provided in discovery to allow a defendant to challenge "the accuracy of the devices used and chemical composition of the solutions used to routinely test and calibrate the machine." Id. at 142.

In this case the parties do not dispute that the State provided the core documents as well as the other foundational documents to defendant. However, defendant also requested the data log downloads for the Alcotest device used to test defendant "for all calibration cycles, including the calibration cycle of which defendant's breath test was a part." We have previously held that discovery in addition to the core and fundamental documents from Chun must be provided when relevant. Maricic, 417 N.J. Super. at 283-84. In Maricic, we stated:

We acknowledge that the two items of discovery requested by defendant in this case are not included in either Judge King's list of fundamental documents or in the more abbreviated list adopted by the Supreme Court. However, we do not regard that fact as a restriction on discovery. As is clear from the Supreme Court's opinion, the foundational documents are required in order to establish the reliability of the Alcotest device utilized in connection with a particular prosecution. As in Ford, discovery of the sort defendant seeks is "extremely material" as a means to test that reliability. Ford, supra, 240 N.J. Super. at 51. It is accordingly required.

[Id. at 285]

In Maricic, we remanded the case to the municipal court for the provision of, among other information, "[d]ownloaded Alcotest results from the subject matter instrument from the date of the last calibration until Defendant's breath tests." Id. at 282. Evidently, there was no question that the downloads existed, had not been provided and contained relevant information not disclosed to defendant in any other form.

In contrast, here a factual dispute exists as to whether the complete information from the downloaded data logs has been provided. The State represents that everything contained in the downloaded data logs was printed and provided to defendant in written form, and then the device was cleared as a routine procedure.[4] On the other hand, defendant represents that the downloaded data log contained information not provided in the written documentation of critical importance to the issue of the reliability of the machine.

While the Law Division judge found that all requested information contained in the downloads had been provided in written form, we cannot find in the record any indication as to the evidence, other than unsworn representations of counsel, that he relied upon to reach his conclusion. If the judge reviewed documents that allowed him to make such a determination, he failed to state the basis for his determination on the record and no such evidence is contained in the record on appeal for our review. Hence, we are unable to determine on the basis of the record provided on appeal whether or not all downloaded data requested was provided to defendant here and whether, pursuant to Chun and Maricic, it should have been.

Accordingly, we remand the case to the Law Division for a hearing to determine whether the State provided the complete downloaded data concerning calibration, control and linearity from the Alcotest to defendant. If the downloaded data was not provided, the judge must determine the nature of any missing data and its relevance to the issue of the reliability of defendant's test results. Lastly, if necessary, the judge must address the question of whether the evidence possessed exculpatory value and was of such a nature that no comparable evidence by other reasonably available means existed. See California v. Trombetta, supra, 467 U.S. at 488, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422.

We have considered other arguments raised by defendant and have determined they are without sufficient merit to require discussion in this opinion. R. 2:11-3(e)(2). We add only that, as defendant acknowledges, the law is well settled in New Jersey that a defendant charged with a violation of N.J.S.A. 39:4-50 has no right to a jury trial. State v. Hamm, 121 N.J. 109 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991).

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

[1] "Upon all highways of sufficient width . . . the driver of a vehicle shall drive it on the right half of the roadway. He shall drive a vehicle as closely as possible to the right-hand edge or curve of the roadway, unless it is impracticable to travel on that side of the roadway, and except when overtaking and passing another vehicle . . . ." N.J.S.A. 39:4-82.

[2] "[A] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety." N.J.S.A. 39:4-88(b).

[3] These documents are (1) the most recent calibration report prior to a defendant's test, with part I--control tests, part II--linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent new standard solution report prior to a defendant's test; and (3) the certificate of analysis of the 0.10 simulator solution used in a defendant's control tests. Id. at 154.

[4] Although the State now takes the position that all the information in the data logs was provided in printed form, at the de novo hearing before the Law Division judge, the prosecutor stated that he did not know whether other data existed that was not printed out.

STATE v ZEB KOCH If detained, Miranda applies

2011-10-08T17:45:00.000-07:00

STATE v

ZEB KOCH,

Defendant-Appellant.

______________________________________

September 26, 2011

Argued April 4, 2011 – Decided

Before Judges A. A. Rodríguez and C. L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Warren County, Municipal Appeal No. A-41-09-Y17.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0602-10T1

PER CURIAM

Zeb Koch was convicted in the Municipal Court of Mansfield of underage consumption of alcohol, in violation of Township of Independence Local Ordinance 121-12.[1] It is undisputed that the ordinance makes it unlawful for "any person under the legal age to knowingly possess or consume alcoholic beverage on private property." The municipal court judge imposed a $250 fine, and $33 court costs.

Koch appealed. At a trial de novo in the Law Division, the judge heard oral argument and issued a written decision, finding Koch guilty of the same charge. The judge imposed the same sanctions. Koch appeals from the judgment of the Law Division. We reverse.

These are the salient facts. On May 8, 2009, Koch, an eighteen-year-old high school student, went to a party in Independence with his nineteen-year-old girlfriend Ashley. The party was held at a home on Barkers Mill Road. A neighbor complained to the police that young people attending the party were smoking marijuana and urinating on his lawn. Independence Township Patrolman Joseph DeWitt testified that he responded to the location of the party. He saw that there were thirty to fifty cars parked near the home. It is undisputed that alcoholic beverages were being consumed in and around the home and on its deck. Upon the arrival of DeWitt in a marked squad car, around twenty young people ran into the woods behind the home. DeWitt did not pursue them. He did detain the forty to fifty young people who had not run into the woods. He lined them up; told them they were not free to leave; and proceeded to sniff the breath of each to determine if they had consumed alcohol. It is undisputed that no Miranda[2] warnings were given. Specifically, no one was advised that they had the right to refuse to submit to being sniffed, or to remain silent.

According to DeWitt, just before he sniffed Koch, the young man said spontaneously, "I only had one." He remembered that Koch's breath smelled of alcohol. After about twenty minutes, DeWitt told the group that they were free to leave, but must do so with a "sober" driver. No summonses were issued at that time.

Ninety minutes after DeWitt left the scene of the party, he came across Koch again. According to DeWitt, he saw a maroon Pontiac, later determined to be registered to Ashley Perch, stationary on the side of the road. He testified that Koch, Ashley and a young woman were the occupants of the vehicle, but, "the operator of the [Pontiac] when I first arrived was not Zeb Koch." DeWitt distinctly remembered speaking with Koch about Koch and Ashley exchanging places, because "Ashley Perch was only 17 years old and was not allowed to drive after midnight."

Ashley testified that Koch was with her the whole time at the party. He did not drink any alcoholic beverages, nor make any comment to DeWitt about drinking. She would not have let Koch drive her car if he had consumed an alcoholic beverage. According to her, after leaving the party with Koch, DeWitt pulled over her Pontiac. Koch was driving. The Pontiac was moving when DeWitt activated his overhead lights to pull it over. She confirmed that that she was nineteen years old, not seventeen as DeWitt had testified.

Koch testified and denied drinking any alcoholic beverages at the party. He was over eighteen on the day of the party. Ashley was not subject to a midnight curfew for new drivers.

After speaking briefly, DeWitt told Koch to continue driving the Pontiac. The motor vehicle stop ended and no charges were issued against anyone.

The defense attempted to introduce into evidence as Exhibit D-5, a videotape made by a camera in DeWitt's police vehicle. The exhibit was excluded from evidence, but it is part of the record on appeal. We have seen it. D-5 shows that the Pontiac was operated by Koch. It was moving for a considerable distance before DeWitt activated his overhead lights and pulled it over.

Four days later, on May 12, 2009, DeWitt issued a summons for underage drinking to Koch. Several days later, Koch learned about the charge for the first time, when his high school principal told him that he was being suspended from school activities because of an underage drinking charge.

Koch appeals, contending:

IT WAS PLAIN ERROR FOR [THE MUNICIPAL COURT AND LAW DIVISION JUDGES] TO EXCLUDE EXHIBIT D-5 AND TESTIMONY ABOUT OFFICER DEWITT'S STOPPING OF THE CAR DRIVEN BY KOCH. BY DOING SO, THE JUDGES EXCLUDED RELEVANT AND MATERIAL EVIDENCE CRUCIAL TO THE CROSS-EXAMINATION OF OFFICER DEWITT AND DENIED KOCH THE OPPORTUNITY TO FULLY AND FAIRLY CHALLENGE BY CROSS-EXAMINATION THE POLICE OFFICER'S ABILITY TO ACCURATELY RECOLLECT THE FACTS CONCERNING THE EVENTS OF THE NIGHT IN QUESTION, INCLUDING HIS IDENTIFICATION OF [KOCH] AS A PERSON WHO MADE A PURPORTED ADMISSION THAT HE HAD BEEN DRINKING ALCOHOL. THIS PLAIN ERROR WAS SO WIDE OF THE MARK THAT IT VIOLATED THE SIXTH AMENDMENT.

We agree.

After a careful review of the record, we conclude that the Law Division judge erred in excluding Exhibit D-5, the videotape of a motor vehicle stop of Koch about an hour and a half after DeWitt left the scene of the party. That videotape directly impeached DeWitt's testimony. It tended to raise a reasonable doubt about the credibility and accuracy of DeWitt's identification of Koch as one of the partygoers who consumed alcohol. The videotape tended to impeach DeWitt's testimony that the Pontiac was stationery when he first saw it and someone other than Koch was the driver.

Koch also contends:

THE STATE BEARS THE BURDEN OF PROVING THAT A SUSPECT HAS BEEN ADVISED OF HIS RIGHTS. [KOCH] AND OTHERS WERE "DETAINED" AND QUESTIONED. THEY WERE NOT FREE TO LEAVE AND THEREFORE WERE "IN CUSTODY". [KOCH'S] PURPORTED "ADMISSION" OF GUILT TO OFFICER DEWITT (WHICH DEFENDANT DENIES MAKING) MUST BE SUPPRESSED BECAUSE NO MIRANDA WARNING WAS GIVEN.

Koch has raised a valid Miranda issue. The partygoers who remained at the scene were detained for about twenty minutes. They were not free to leave. DeWitt's sniffing of their breath was clearly in a custodial setting. His actions were an implied question to Koch and others to indicate whether they had consumed alcoholic beverages. For Miranda purposes, when determining whether a suspect has been subjected to custodial interrogation courts look "not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 307-08 (1980). In keeping with Miranda's protective aims, consideration is paid to the suspect's perception of events, not the intent of police. Innis, supra, 446 U.S. at 301, 100 S. Ct. at 1690, 64 L. Ed. 2d at 308.

Here, Koch was charged in a quasi-criminal matter, which resulted in the imposition of a penal consequence (a fine). Therefore, the statement attributed to Koch should have been suppressed, for failure to give Miranda warnings. In light of this exclusion, the credibility of DeWitt is even more critical with respect to establishing Koch's guilt.

Moreover, the testimony of DeWitt that he sniffed alcohol on Koch's breath, even if believed, is insufficient as a matter of law to sustain a conviction. There were many young people at this party. Alcohol was being consumed by many of them. Therefore, the smell of alcohol in the area of the party was a given. The sniff test without excluding other sources, was not sufficient to establish that Koch was drinking. This is so, in light of the serious impeachment of DeWitt's credibility by D-5, which was erroneously excluded. The conviction cannot stand.

Having determined that the conviction must be vacated due to the exclusion of D-5, and the failure to give Miranda warnings, we do not address the remaining contentions:

THE LAW DIVISION JUDGE WAS OBLIGATED TO MAKE HIS OWN EVIDENTIARY RULINGS AND FINDINGS OF FACT. INSTEAD, HE UNDULY DEFERRED TO THE RULINGS AND FINDINGS OF THE MUNICIPAL COURT JUDGE. BOTH JUDGES' EXCLUSION OF THE PROFFERED EVIDENCE WAS ERRONEOUS.

OFFICER DEWITT'S TESTIMONY WAS NOT CREDIBLE NOR SUFFICIENT TO SUSTAIN A VERDICT OF GUILTY BEYOND A REASONABLE DOUBT.

THE STATE'S BURDEN OF PROOF IN A CRIMINAL CASE IS PROOF BEYOND A REASONABLE DOUBT. NEITHER A MERE PREPONDERANCE OF THE CREDIBLE EVIDENCE, NOR THE PRESENTATION OF CLEAR AND CONVINCING EVIDENCE IS SUFFICIENT TO MEET THE STATE'S BURDEN IN A CRIMINAL CASE. THE EVIDENCE PRESENTED IN THE TRIAL COURT BY THE STATE'S SOLE WITNESS IS OUTWEIGHED BY THE TESTIMONY OF [KOCH], ASHLEY PERCH AND EXHIBIT D-5, SHOULD HAVE BEEN A DEFENSE VERDICT.

THE PROOF PRESENTED WAS INADEQUATE TO ESTABLISH THAT [KOCH] HAD INGESTED AN ALCOHOLIC BEVERAGE. AN OBJECTIVE, SCIENTIFICALLY-RELIABLE TEST WOULD BE NEEDED IN ORDER TO ESTABLISH THE PRESENCE OF ALCOHOL IN A HUMAN BODY. A POLICE OFFICER'S NOSE IS NOT A SCIENTIFICALLY-RELIABLE INSTRUMENT FOR THE DETECTION OF ALCOHOL IN THE HUMAN BODY. VERIFIABLE TESTING IS DESIRABLE. A 'SNIFF' TEST MAY BE ADEQUATE FOR PURPOSES OF ESTABLISHING PROBABLE CAUSE TO INVESTIGATE FURTHER, BUT IS NOT SUFFICIENT FOR ESTABLISHING GUILT BEYOND A REASONABLE DOUBT.

The conviction is reversed.

[1] The charges arose in Independence Township, but the trial was held in the Mansfield Township municipal court due to the judge's schedule.

[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Speedy trial applies to municipal court

2011-09-19T17:35:00.000-07:00

STATE OF NEW JERSEY,

Plaintiff-Respondent,

MIA B. AUSTIN,

Defendant-Appellant.

________________________________

Submitted: September 12, 2011 - Decided:

Before Judges C.L. Miniman and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Municipal

Appeal No. 70-2008.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1060-10T3

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Brian D. Gillet,

Assistant Prosecutor, of counsel; Jason

Seidman, on the brief).

PER CURIAM

Defendant Mia B. Austin appeals her judgment of conviction

for fourth-degree obstruction of the administration of law,

contrary to N.J.S.A. 2C:29-1a; fourth-degree resisting arrest,

contrary to N.J.S.A. 2C:29-2a; speeding, contrary to N.J.S.A.

39:4-98; and expired registration, contrary to N.J.S.A. 39:3-4.

She was not sentenced to incarceration or probation but was

September 16, 2011

2 A-1060-10T3

fined $500 for obstruction, $500 for resisting, $86 for

speeding, and $26 for expired registration. Court costs and

penalties were also imposed.

On April 26, 2005, Piscataway Police Officer Michael Joy

was conducting a speed-enforcement radar detail on Haines Avenue

when he determined that defendant was driving at forty-two miles

per hour in a twenty-five-mile-per-hour zone. Joy flagged her

to stop and approached her vehicle. She presented him with an

expired registration card when he asked for her documentation.

Defendant admitted that she knew she had to renew the

registration.

Joy explained that the car would have to be towed and asked

for the keys. Defendant would not surrender them, despite

repeated requests. Joy requested backup and, when another

officer arrived, instructed defendant to get out of the car and

leave the keys on the dashboard. However, when she got out of

the car, she took the keys with her and refused to surrender

them. When she was placed under arrest for obstructing the

towing and impoundment of her car, she then resisted

handcuffing. She was ultimately subdued, and the officers pried

the keys out of her hand. She was then charged with the above

offenses.

3 A-1060-10T3

Defendant pled not guilty at the first court appearance on

May 10, 2005. Subsequently, there were nine court appearances

over the next eight months, none of which was adjourned at the

request of defendant. However, defendant's counsel failed to

appear on February 23, 2006, and counsel was ordered to appear

on February 28, which was then carried to March 1. On March 7,

2006, defendant objected to the multiple adjournments, the

length of the delay, and the adverse impact all of the daytime

appearances were having on her children and her employment. The

matter was not rescheduled until May 11 on a try-or-dismiss

basis, but the court again adjourned the matter four more times

before beginning the trial on October 24, 2006. However, the

judge did not have sufficient time to complete the testimony of

Joy and adjourned the matter to January 23, 2007. When that

appearance was adjourned, defendant's counsel demanded, verbally

and in writing, that the municipal court provide him with "a

detailed listing of any and all scheduled [court] appearances."

The municipal court never complied with this request.

The trial resumed on March 6, 2007––almost two years after

the offenses in question. Although the testimony of Joy was

completed that day, the judge again adjourned the trial as he

did not have sufficient time available to hear the next witness.

This was the eighteenth court appearance. The matter was

4 A-1060-10T3

rescheduled to an agreed date of May 1, 2007, but that date was

adjourned by the court to June 26, then to August 28, and then

to September 25, 2007. The latter date, too, was adjourned, and

defendant filed a motion to have the Piscataway municipal judge

recused from the case because defendant had sued the Township.

Yet no immediate ruling was made on that motion. The matter was

relisted on October 23, November 27, and December 4 with no

further testimony ever being taken. It was again adjourned to

January 22, 2008.

On the latter date, the municipal judge had apparently not

been reappointed to the bench, and the new judge declared a

mistrial and transferred the matter to the Metuchen municipal

court for disposition. The first appearance in Metuchen on

April 4, 2008, was adjourned; it was now three years after the

offenses in question. Two more scheduled appearances were

adjourned before trial began on July 11, 2008. By that time,

defendant had moved to dismiss for violation of her right to a

speedy trial. The motion was denied, and the trial began that

day. It resumed and was concluded on September 5 with defendant

found guilty on all charges.

Defendant appealed to the Law Division where further delays

occurred. The appeal was not decided until January 22, 2010––

four years and nine months after the offenses in question.

5 A-1060-10T3

Defendant renewed her speedy trial motion, which was again

denied. Defendant was convicted de novo on all charges. This

appeal followed.

Defendant raises the following issues for our

consideration:

POINT I - THE COURT ERRED IN DENYING

DEFENDANT'S MOTION FOR DISMISSAL BASED ON

VIOLATION OF HER RIGHT TO [A] SPEEDY TRIAL.

POINT II - DEFENDANT'S CONVICTION FOR

OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE

SHOULD BE REVERSED.

POINT III - DEFENDANT'S CONVICTION FOR

RESISTING ARREST SHOULD BE REVERSED.

The Sixth Amendment guarantees the accused the right to a

speedy trial. Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct.

2182, 2184, 33 L. Ed. 2d 101, 108 (1972). Because it is

"impossible to determine with precision when the right has been

denied," id. at 521, 92 S. Ct. at 2187, 33 L. Ed. 2d at 112, the

Barker Court rejected an inflexible approach in evaluating

alleged violations of a defendant's right to a speedy trial.

Id. at 529, 92 S. Ct. at 2191, 33 L. Ed. 2d at 116. Rather, the

Court imposed a flexible balancing test, which weighs the

conduct of both the prosecution and the defendant. Id. at 530,

92 S. Ct. at 2191-92, 33 L. Ed. 2d at 116-17. This balancing

test assesses four factors: "[l]ength of delay, the reason for

the delay, the defendant's assertion of his right, and prejudice

6 A-1060-10T3

to the defendant." Id. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d

at 117. None of the factors is dispositive, but instead the

factors "must be considered together with such other

circumstances as may be relevant." Id. at 533, 92 S. Ct. at

2193, 33 L. Ed. 2d at 118.

Our Supreme Court reviewed the history of a defendant's

right to a speedy trial in New Jersey under Article I, paragraph

10, of the New Jersey Constitution in State v. Szima, 70 N.J.

196, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180

(1976). The Court recognized that the federal right to a speedy

trial had been found fundamental in 1967 and that the dimensions

of this right were delineated in 1972 by the Barker Court. Id.

at 200. In adopting that paradigm, it noted that "[t]he proper

approach suggested by the Supreme Court was an ad hoc balancing

test in which the conduct of both the prosecution and the

defendant are weighed." Id. at 200-01. It observed that the

Barker Court "regarded none of the four factors as either a

necessary or sufficient condition to the finding of a

deprivation of the right to a speedy trial." Id. at 201

(emphasis added). It "recognize[d] that application of a

balancing of interests test must be on an ad hoc basis and

necessarily involves subjective reaction to the balancing of

circumstances." Ibid.

7 A-1060-10T3

In State v. Farrell, 320 N.J. Super. 425, 427 (App. Div.

1999), an appeal from a DWI conviction, we found that "663 days

from the issuance of the summonses through thirteen noncontinuous,

widely-spaced court sessions" amounted to a

violation of the defendant's right to a speedy trial. Id. at

428. The defendant's counsel "entered his appearance and a notguilty

plea, filed notice of several motions, made discovery

requests and proffers, and asserted [the] defendant's

constitutional right to a speedy trial." Ibid. Three weeks

later, he "acknowledged receipt of some discovery and requested

other, missing" discovery. Ibid. The next day, he filed a

brief in support of his motions. Ibid. "An inordinate number

of continuances and lengthy adjournments then ensued." Ibid.

Trial did not actually begin until ten months after the

defendant was charged. Id. at 428, 433. It was then carried

for three months; was adjourned for five weeks, at which point

the defendant again asserted his right to a speedy trial; and

was then adjourned again until July 10, 1996——eighteen months

after the defendant was charged. Id. at 436-37. At that point

it was adjourned again to September 11, 1996. Id. at 439. On

that date, the trooper was not available and the prosecutor

sought an adjournment, the defendant renewed his motion to

dismiss, and the case was adjourned again and again, id. at 439-

8 A-1060-10T3

42, until it was tried to conclusion on November 13, 1996, id.

at 443-44. The defendant continued throughout this time to

press his right to a speedy trial. Id. at 439-43.

In State v. Tsetsekas, 411 N.J. Super. 1, 4 (App. Div.

2009), we again considered the delay in a DWI conviction.

There, the defendant was arrested on May 8, 2007, and charged

with DWI. Id. at 4-5. He first appeared in court on May 15,

2007, entered a plea of not guilty, and was scheduled for trial

on July 17, 2007. Id. at 5. At that time, the State requested

an adjournment because it had just provided the defendant with

discovery. Ibid. The matter was relisted for August 14, 2007,

when the State revealed it had not provided the videotape of the

defendant's stop and arrest. Ibid. Multiple adjournments were

requested by the State over the next four months when on

December 18, 2007, the State represented it had not alerted its

witnesses of the date for trial. Id. at 5-6. The defendant

sought a speedy-trial dismissal, which the judge denied, and the

trial finally commenced at 11:00 p.m. when one of the troopers

arrived. Id. at 6-7. The trial was scheduled to continue on

March 5, 2008, but the State again sought an adjournment because

the troopers were not available. Id. at 7. The defendant

renewed his motion to dismiss, and the judge again denied the

motion. Ibid. On April 16, 2008, almost a year after the

9 A-1060-10T3

defendant's arrest, the State concluded its presentation of

evidence, and the defense presented its case. Ibid. The

defendant was convicted of DWI and appealed. Ibid. The Law

Division denied the defendant's speedy-trial motion and affirmed

the conviction. Id. at 7-8.

The Law Division judge measured the length of the delay

against the delay in Farrell and concluded that the delay in

Tsetsekas was not excessive. Id. at 11. We rejected that

approach and held that "no set length of time . . . fixes the

point at which delay is excessive." Ibid. We pointed out that

"[t]he first step in analyzing the facts requires a court to

remember" the Supreme Court's policy on DWI dispositions. Ibid.

(quoting Farrell, supra, 320 N.J. Super. at 446-47). We

observed that the 344-day dispositional period was "more than

five times the stated objective." Ibid. We concluded that

amount of delay was excessive. Id. at 11-12.

We have, however, on separate occasions concluded that

delays in drunk-driving trials were not excessive. State v.

Misurella, ___ N.J. Super. ___ (App. Div. 2011) (rejecting

speedy trial claim where delay was caused by defendant and the

State); State v. Berezansky, 386 N.J. Super. 84, 85, 99 (App.

Div. 2006) (rejecting "defendant's contention that he was

deprived of his constitutional right to a speedy trial based on

10 A-1060-10T3

the nearly five months that elapsed between his arrest and the

beginning of his trial"), certif. granted, 191 N.J. 317 (2007),

appeal dismissed, 196 N.J. 82 (2008); State v. Prickett, 240

N.J. Super. 139, 141-42, 148 (App. Div. 1990) (affirming denial

of speedy-trial motion in a trial held approximately six months

after arrest). We acknowledge these cases involved DWI charges,

but we discern no reasons why the same speedy trial principles

and analysis should not apply to municipal court trials in

general.

The delay here far exceeded the five-month delay in

Berezansky and the six-month delay in Prickett. In fact, it far

exceeded the almost one-year delay in Tsetsekas and the 663-day

delay in Farrell. This delay consumed 1228 days from arrest to

conviction and subjected defendant to no less than thirty-one

court appearances. Indeed, the delay was further exacerbated by

the fact that it took another 504 days before the Law Division

heard defendant's appeal from the municipal conviction. By any

standard, the delay here was extraordinary. As a consequence,

we must next consider the second Barker factor––the reasons for

the delay.

The Barker Court suggested that a "deliberate attempt to

delay the trial in order to hamper the defense should be

weighted heavily against the government." Barker, supra, 407

11 A-1060-10T3

U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. On the

other hand, a valid reason for the delay, such as the absence of

a witness, will be considered justifiable and excuse the delay.

Ibid. Similarly, although more neutral and given less weight,

"delays of scheduling and other failures of the process for

which the trial court itself was responsible are attributable to

the State and not to the defendant," for it is the ultimate

responsibility of the government to bring the defendant to

court. Farrell, supra, 320 N.J. Super. at 451 (citing Barker,

supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117).

Finally, delays attributable to the defendant "would not weigh

in favor of finding a speedy trial violation." State v.

Gallegan, 117 N.J. 345, 355 (1989).

Here, there is no suggestion that there was any "deliberate

attempt to delay the trial in order to hamper the defense."

Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d

at 117. However, the bulk of the delays were attributable to

the municipal court judge, his staff, and the prosecutor. The

record is devoid of any evidence that defendant caused any of

the twenty-nine adjournments with the exception of one

adjournment when she filed her recusal motion. Although the

State blames the judge, his delays "are attributable to the

12 A-1060-10T3

State and not to the defendant." Farrell, supra, 320 N.J.

Super. at 451.

The third Barker factor, the defendant's assertion of her

right to a speedy trial, "is entitled to strong evidentiary

weight in determining whether the defendant is being deprived of

the right." Barker, supra, 407 U.S. at 531-32, 92 S. Ct. at

2192-93, 33 L. Ed. 2d at 117. The strength of the defendant's

efforts are closely related to the other Barker factors. Id. at

531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117; see, e.g., Farrell,

supra, 320 N.J. Super. at 451-52 (finding in favor of the

defendant who, given the "excessive" delays, invoked his right

to a speedy trial at the outset and on eight other occasions).

At the same time, the defendant's "failure to assert the right

will make it difficult for a defendant to prove that he was

denied a speedy trial." Barker, supra, 407 U.S. at 532, 92 S.

Ct. at 2193, 33 L. Ed. 2d at 118.

Here, defendant asserted her right to a speedy trial on

March 7, 2006, February 27, 2007, and March 26, 2008. Because

we do not have transcripts of all court appearances, we do not

know if there were other occasions when defendant asserted her

right to a speedy trial, but we do know that she maintained that

position for almost two years, leaving only one factor to

consider.

13 A-1060-10T3

The final Barker factor is the prejudice to the defendant

caused by the delay. Ibid. The Barker Court identified three

interests that the right to a speedy trial protects: (1)

preventing oppressive pretrial incarceration; (2) minimizing

anxiety and concern of the defendant; and (3) limiting the

possibility that the defense will be impaired. Ibid. Moreover,

prejudice can be found "from employment interruptions, public

obloquy, anxieties concerning the continued and unresolved

prosecution, the drain on finances, and the like." State v.

Smith, 131 N.J. Super. 354, 367-68 n.2 (App. Div. 1974), aff’d

o.b., 70 N.J. 213 (1976).

Here, defendant was not incarcerated pretrial, and there is

no suggestion that her defense was impaired as a result of the

delay. She does, however, urge that she "experienced anxiety

over the drawn[-]out prosecution, had interruptions in her

employment, and suffered financial drain as a result of the

delay." Indeed, we cannot imagine that the latter was not the

case as generally attorneys expect to be compensated for making

thirty-one court appearances. In Farrell we found that

the prosecution's clear inattention to its

responsibilities along with the municipal

court's patent failure to prepare itself to

try the matter expedi[ti]ously and shepherd

it to resolution efficiently . . . were so

egregious that no showing of prejudice is

required in order for this defendant to

succeed on his argument that, in fundamental

14 A-1060-10T3

fairness terms, he was denied his adequately

asserted right to a speedy trial.

[Farrell, supra, 320 N.J. Super. at 452-53.]

The delay there was 663 days; here it was almost twice as

long. We see no basis for distinguishing the facts in Farrell

and are persuaded that the result should be the same. Although

some showing of prejudice has been made, none was required. As

a result, it was error to deny defendant's speedy-trial motion

because "the denial of fundamental fairness was so great, and

the integrity of the judicial process so crippled, as to require

that the convictions be vacated." Id. at 453.

In light of our disposition of the speedy-trial issue,

defendant's claim that her convictions should be reversed on

other grounds is moot.

Reversed and remanded for vacation of the judgment of

conviction and refund of all fines, penalties, and costs.