Monday, May 16, 2022

Search of car not authorized where warrant pertained to house STATE v. DOMINIC L. MCGRIFF,

Search of car not authorized where warrant pertained to house STATE

v.
DOMINIC L. MCGRIFF,

Defendant-Appellant. ________________________

Argued September 27, 2021 – Decided April 22, 2022 Before Judges Sumners and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 17-03-0490.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2533-19

Following the denial of his motion to suppress evidence, defendant Dominic L. McGriff pleaded guilty to second-degree possession with intent to distribute a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35- 5(a)(1) and (b)(2). He appeals from the order denying his motion to suppress the cocaine seized from his car following a motor vehicle stop. We reject the court's determination the challenged motor vehicle stop was supported by a reasonable and articulable suspicion of criminal activity, and, because the court did not fully analyze the factors essential to its conclusion the seizure of the evidence was attenuated from the unlawful stop, we remand for reconsideration of the attenuation issue.

I.
An August 15, 2016 complaint-warrant charged defendant with

possession of cocaine, N.J.S.A. 2C:35-10(a)(1); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2); and eluding, N.J.S.A 2C:29-2(b). A grand jury later returned an indictment charging defendant with (1) third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); and (2) second-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2).

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Defendant later filed a motion to suppress the evidence obtained as a result of what he claimed was an unconstitutional warrantless stop and seizure of his vehicle. The suppression hearing occurred over the course of two days.

The motor vehicle stop occurred in connection with the planned August 25, 2016 execution of a no-knock search warrant at a home in Beachwood and a separate search warrant for a red BMW registered to the home's owner. The affidavits supporting both warrants set forth substantially the same information.

The affidavits state a concerned citizen contacted the Toms River Police Department Special Enforcement Team (TRPD/SET) and reported defendant resided at the Beachwood home and was possibly distributing cocaine at area bars and clubs. The affidavits further describe that members of the TRPD/SET investigated the report and conducted two controlled buys of suspected cocaine from defendant through a confidential informant during the weeks of August 7 and August 14, 2016.

According to the affidavits, the confidential informant contacted defendant in the presence of the police and arranged for the buys at agreed upon locations. Investigating officers observed defendant exit the Beachwood home, enter a red BMW, and travel "directly to the prearranged buy location[s]," where the officers observed the informant approach the BMW and briefly interact with

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defendant. Following the two interactions, and while under constant observation of the investigating officers, the informant traveled to a prearranged "debrief" location and provided officers with cocaine the informant said was purchased from defendant.

The affidavits further state a TRPD/SET officer learned defendant had seventeen prior arrests and four prior felony convictions, including for possession and distribution of CDS, resisting and eluding, and other violent crimes. The investigation further revealed defendant was staying at the Beachwood home with a large pit-bull.

The affidavits requested a no-knock warrant because CDS "can be easily destroyed," "persons dealing in CDS are often in possession of dangerous weapons," defendant's criminal history made it more likely he may resist or destroy evidence, and the presence of the pit-bull at the home posed a risk to law enforcement. The court issued a no-knock search warrant for the Beachwood home that in pertinent part authorized the police "to enter and search . . . the premises . . . and to search . . . such persons as may be therein and thereon." The court issued a separate search warrant for the BMW.

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At the suppression hearing, the State presented Toms River Police Department detective Duncan McCrae and officer Ryan Quinn. Defendant testified on his own behalf.

The officers testified that prior to execution of the warrants on August 25, 2016, a briefing was held to discuss the execution strategy. The strategy adopted involved six or seven officers in unmarked vehicles taking up surveillance positions in the vicinity of the Beachwood home. Their plan was to wait until defendant left the home and then stop him in his vehicle once he was "safely away from the residence," at which point, other officers would execute the search warrant on the residence.

McCrae testified this strategy was adopted because there was a child in the home and the presence of the pit-bull posed a risk to officer safety. McCrae also explained the strategy ensured no one in the residence would observe the motor vehicle stop and potentially destroy any evidence located within the home.

McCrae testified he took his surveillance position at approximately 3:15 p.m. and had an unobstructed view of the Beachwood home's front door as well as the BMW. At around 5:30 p.m., McCrae observed defendant exit the home, enter the BMW, and turn down an adjacent street. McCrae briefly lost sight of

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the BMW and followed in the direction defendant had driven. When he regained sight of the BMW, it was parked in a driveway adjacent to the residence, on the street defendant had driven, but defendant was not inside the vehicle. McCrae then took a new surveillance position out of view of the home, "down the block a significant . . . distance."

Quinn testified that at approximately 6:00 p.m., he observed defendant exit the residence and enter a white Honda Accord. He communicated this information, as well as the direction in which defendant had driven, to the other officers. After receiving the information from Quinn, McCrae drove from his location, observed "the back end of the Honda[,]" and began following the car. McCrae's vehicle was not equipped with lights or sirens. As he followed defendant's vehicle, he "radioed Detective Petrecca from the Ocean County Prosecutor's Office[,] who was in a vehicle . . . equipped with lights and sirens[,]" and directed Petrecca to stop defendant's vehicle.

McCrae followed defendant as he proceeded from the Beachwood home onto Route 9, but he yielded his position directly behind defendant to Petrecca to allow Petrecca to activate his lights and sirens to effectuate a stop of defendant's vehicle. Once behind defendant, Petrecca activated his lights and sirens, and in response, defendant pulled over and stopped his vehicle on the

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shoulder of Route 9. The stop occurred between approximately three-quarters of a mile to one mile from the Beachwood home.

Defendant testified that when he stopped on Route 9, Petrecca's vehicle with the lights and sirens was a car length behind him. He also testified an unmarked vehicle – McCrae's vehicle – that lacked lights or sirens and looked like a "regular car" pulled between his vehicle and Petrecca's.

McCrae exited his vehicle and walked toward the Honda, but defendant pulled away. Defendant testified he did not observe anyone exit a vehicle or approach him. He stated the shoulder of the road was narrow, and he was unable to fully pull off the roadway because there was a guardrail. He explained the speed limit was fifty miles per hour, and other cars were "flying [past] to the point where they were . . . shaking [his] vehicle."

Defendant testified that after McCrae's vehicle pulled in directly behind him and in front of Petrecca's car, he believed Petrecca had pulled over McCrae's unmarked vehicle. Defendant also explained he did not feel that "it was safe for him to be pulled over" at that location, so he drove away from the location of the stop.

After pulling away, defendant first drove down Route 9. McCrae testified the lights and sirens on Petrecca's vehicle remained activated from the time

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Petrecca initially activated them to effectuate the initial stop and thereafter when defendant pulled away and proceeded down Route 9. Defendant testified the vehicle with the activated lights and sirens "jumped right back behind" him as he drove away from the location of the initial stop. He stated he did not immediately pull over because there was no safe place to do so.

As Petrecca followed defendant with his lights and sirens activated, defendant made a right hand turn off Route 9 onto another street and then a second right hand turn onto Dover Road, where defendant pulled over and stopped. McCrae separately pursued defendant in his vehicle. McCrae testified the location of the second stop was "approximately three-quarters of a mile" from the initial stop.

McCrae described the location of the second stop as a "residential area with a very, very small shoulder" that he did not consider to be a "safer location." He testified there were four places defendant could have safely stopped his vehicle after leaving the initial stop, but defendant drove past them.

At the scene of the second stop, McCrae approached defendant's vehicle, asked defendant to get out, and arrested defendant for eluding. During a search of defendant incident to his arrest, McCrae recovered $1,300 in cash from defendant.

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Quinn arrived on the scene after defendant's arrest and went to defendant's vehicle to secure it. He testified the front driver's side door of the vehicle was open, and, as he stood outside the vehicle, he observed a bag with what appeared to be cocaine on the front floorboard. He recovered the bag and secured the vehicle, which was towed for the purpose of obtaining a warrant to search it.

McCrae agreed "the motor vehicle stop and . . . the search and seizure of [defendant's] vehicle" and the impounding of the vehicle "took place prior to the execution of the search warrant" at the Beachwood home. The record on appeal does not disclose what evidence, if any, was obtained from the home or red BMW during the searches authorized by the search warrants. Defendant did not challenge the seizure of evidence, if any, from those locations in his suppression motion.

Following the testimony at the suppression hearing, the court heard argument on defendant's motion. The State claimed the stop of the Honda was proper because it was authorized by the search warrant for the Beachwood home. The warrant for the home included a preamble noting the search warrant affidavit claimed there was probable cause to search the Beachwood home, "along with any and all persons arriving at, departing from and located therein at the time of execution of the warrant sought herein reasonably believed to be

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associated with this investigation." The warrant, however, directly authorized the officers only to "enter and search . . . the premises [of the home], and to search with the necessary and proper assistance such persons as may be therein or thereupon."

Defendant argued the warrant authorized the search of those "therein or thereupon" the premises of the Beachwood home but did not permit the stop of his vehicle, the Honda, about a mile from the premises. He asserted that under Bailey v. United States, 568 U.S. 186 (2013),1 the stop of the Honda was beyond the "immediate vicinity" of the home, and therefore the officers required a separate and independent basis supporting the motor vehicle stop.

The State argued the warrant authorized a stop of defendant's vehicle because he was observed leaving the home, and the stop was authorized under a "commonsensical overall approach to the totality of the circumstances" in construing the search warrant. The State also claimed that because the stop occurred "between a half mile and three-quarters of a mile from the house[,]" it was arguably within the "immediate vicinity" of the execution of the search

The Court in Bailey held that "[o]nce an individual has left the immediate vicinity of a premises to be searched . . . detentions must be justified by some other rationale" such as a "a brief stop for questioning based on reasonable suspicion . . . or an arrest based on probable cause." Bailey, 568 U.S. at 202.

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warrant at the home, and the stop away from the home was justified based on safety concerns.

The court found the motor vehicle stop did not "fall[] within the extended fluid concept of the warrant." The court found what it characterized as the 'command' section of the search warrant authorized a search only of individuals who were "therein" and "thereupon" the premises at the time of the execution of the warrant. Thus, the court found the stop was not supported by the warrant to search the Beachwood home.

The court also addressed the State's alternative argument that the stop was independently supported by reasonable articulable suspicion. Defendant argued McCrae's testimony that defendant was not observed committing any motor vehicle offenses required the conclusion there was not a reasonable articulable suspicion supporting the stop. The State claimed the information in the search warrant affidavits describing the two prior controlled buys, which was known to McCrae when he ordered Petrecca to stop defendant's vehicle, as well as defendant's "suspicious behavior of . . . moving the [BMW] around the corner and then leaving in another vehicle," supported a reasonable articulable suspicion supporting an investigatory stop of defendant in the Honda.

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The court accepted the State's argument, finding the initial stop was a lawful investigatory stop supported by reasonable and articulable suspicion defendant "was engaged in . . . additional activity, criminal activity." To support its conclusion, the court cited defendant's history of distribution, the two controlled buys that preceded the search warrant applications, and the information in the search warrant affidavits describing defendant's use of a vehicle during the controlled buys. The court found the fact defendant was not driving the BMW he had used during the controlled buys, but instead was driving the Honda, did not "have any [c]onstitutional significance."

The court also determined that even if the initial stop of the vehicle was unlawful, the second stop was sufficiently attenuated from the initial stop to render the seizure of the CDS following the second stop lawful. Defendant argued the State did not prove attenuation because the grand jury did not charge defendant with eluding and his actions following the first stop did not constitute eluding. He relied on his testimony the initial stop was confusing and he thought McCrae's unmarked vehicle had been pulled over by Petrecca after McCrae parked between defendant's vehicle and Petrecca's. Defendant argued he left the scene of the first stop, and later stopped some distance away, because he sought a safer location for the stop.

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The State argued the second stop was attenuated from the first because defendant failed to remain stopped after he was pulled over by Petrecca. The State also argued, contrary to defendant's testimony, the second location was not a safer location. The State asserted defendant drove past "numerous" safe locations to stop and instead drove "another three-quarters of a mile," from the initial stop, during which he made "at least two turns."

The court cited State v. Williams (Williams I), 192 N.J. 1, 15 (2007), which addresses the standard for deciding an attenuation claim, and found the evidence obtained from defendant's vehicle was sufficiently attenuated from the initial investigatory stop. The court rejected defendant's contention he left the scene of the initial stop to travel to a safer place, and credited McCrae's testimony there were several places defendant could have pulled over between the locations of the first and second stops, and "he chose not to." The court found there was probable cause to believe defendant committed the crime of eluding by leaving the scene of the first stop, and therefore the second stop and defendant's arrest were lawful. Relying on State v. Crawley, 187 N.J. 440 (2006), and State v. Seymour, 289 N.J. Super. 80 (App. Div. 1996),2 the court

2 Crawley and Seymour hold a defendant does not have the right to disobey an unlawful police command and may be prosecuted for eluding or obstructing by

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also found the officers were performing a lawful function when they initially stopped defendant, "they continued to wear that authority through the ultimate stop," and the discovery of the CDS occurred in the "context" of defendant's arrest for eluding.

Thus, the court found the stop of defendant's vehicle that resulted in the seizure of the CDS was supported on two grounds – as a valid investigatory stop and, alternatively, if the first stop was unlawful, the second stop was sufficiently attenuated such that it was lawful. The court denied defendant's suppression motion.

Defendant later pleaded guilty to one count of second-degree possession of CDS with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and (b)(2). The court imposed a six-year sentence with a three-year period of parole ineligibility.

Defendant appeals from the order denying his suppression motion and from his conviction. He presents the following arguments for our consideration:

POINT ONE

THE MOTION JUDGE'S REASONING THAT THE POLICE COULD PULL OVER THE WHITE HONDA FOR REASONABLE SUSPICION, SIMPLY

refusing to comply or by fleeing from the command. Crawley, 187 N.J. at 460- 61; Seymour, 289 N.J. Super. at 87.

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BECAUSE THEY BELIEVED THE DRIVER WAS A DRUG DEALER AND ALLEGEDLY INVOLVED IN PRIOR CONTROLLED PURCHASES, WAS ERRONEOUS.

POINT TWO

THE MOTION
[DEFENDANT]
FOLLOWING
VEHICLE STOP, WAS MERELY THE BEGINNING AND NOT THE ENDING OF THE ATTENUATION- DOCTRINE ANALYSIS; THE COURT MISAPPLIED THE LAW TO THE FACTS.

A. TEMPORAL PROXIMITY FAVORS [DEFENDANT].

B. THERE WERE NO INTERVENING CIRCUMSTANCES TO ATTENUATE THE UNCONSTITUTIONAL STOP AND THE SEIZURE OF THE EVIDENCE.

C. THE MISCONDUCT IN THE PRESENT CASE WAS TO ADVANCE A FLAGRANTLY UNCONSTITUTIONAL PURPOSE.

II.
In our review of a court's order denying a suppression motion following

an evidentiary hearing, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Ahmad, 246 N.J. 592, 609 (2021) (quoting

JUDGE'S FINDING THA T

ELUDED THE POLICE THE UNCONSTITUTIONAL

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State v. Elders, 192 N.J. 224, 243 (2007)). The factual findings of the trial court should only be set aside when those findings are "clearly mistaken." State v. Zalcberg, 232 N.J. 335, 344 (2018). We review the court's legal conclusions de novo. State v. Hathaway, 222 N.J. 453, 467 (2015).

The Fourth Amendment of the United States Constitution as well as Article I, Paragraph 7 of the New Jersey Constitution guarantees "[t]he right of the people to be secure . . . against unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "[A] '"seizure" of "persons"' occurs within the meaning of those provisions" when police conduct a motor-vehicle stop, "however brief or limited." State v. Scriven, 226 N.J. 20, 33 (2016) (quoting State v. Dickey, 152 N.J. 468, 475 (1998)). "A search that is executed pursuant to a warrant is 'presumptively valid.'" State v. Boone, 232 N.J. 417, 427 (2017) (quoting State v. Watts, 223 N.J. 503, 513 (2015)). "[A] defendant bears the burden of proof when challenging evidence gathered pursuant to a validly issued search warrant." State v. Atwood, 232 N.J. 433, 438 (2018). On the other hand, where evidence is seized during a vehicle stop without a warrant, "[t]he State has the burden of proof to demonstrate by a preponderance of the evidence that the warrantless seizure was valid." Id. at 437-38 (alteration in original) (quoting State v. O'Neal, 190 N.J. 601, 611 (2007)).

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The State argues on appeal that the court erred by finding the initial motor vehicle stop was not authorized by the search warrant for the Beachwood home. Although the State did not cross-appeal from the order denying the suppression motion, we consider the State's argument because a prevailing party is free to argue any legal point on appeal that supports the finding below "[w]ithout having filed a cross-appeal." Courier-Post Newspaper v. Cnty. of Camden, 413 N.J. Super. 372, 392 n.8 (App. Div. 2010) (quoting Chimes v. Oritani Motor Hotel, Inc., 195 N.J. Super. 435, 443 (App. Div.1984)).

The State claims the court read the search warrant in a "hyper-technical way" and the search warrant should have been construed as an "all persons present" warrant permitting defendant's detention beyond the premises of the Beachwood home. Alternatively, the State argues the white Honda in which defendant was observed leaving the home was within the scope of the warrant as property "intended for use" or which "had been used" in drug trafficking.

While a search warrant generally provides "categorical authority to detain incident to the execution of a search warrant" that authority "is limited to the immediate vicinity of the premises to be searched." Bailey, 568 U.S. at 199. Although the Supreme Court has not established a bright-line rule defining the "spatial constraint defined by the immediate vicinity of the premises to be

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searched," id. at 201, it has held a defendant detained "about a mile" from the premises to be searched was "beyond any reasonable understanding of the immediate vicinity of the premises in question[,]" id. at 190, 201. On the other hand, a warrant authorizing the search of "all persons present reasonably believed to be connected to [the] property" or similar language, State v. Bivins, 226 N.J. 1, 11 (2016) (alteration in original), may "authorize searches of persons seen departing from the scene of the search, provided that their presence at the scene when the warrant is being executed is proven[,]" id. at 13.

"[O]fficers searching a person's home . . . under authority of a search warrant are authorized to use only those investigatory methods, and to search only those places, appropriate in light of the scope of the warrant." State v. Reldan, 100 N.J. 187, 195 (1985) (citing Harris v. United States, 331 U.S. 145, 152 (1947)). To determine whether a search was conducted within the scope of its authorizing warrant, we begin with an "examination of the terms of the search warrant, which must be strictly respected." State v. Bivins, 435 N.J. Super. 519, 524 (App. Div. 2014), aff'd, 226 N.J. 1 (2016). In doing so, we recognize "[a] warrant should be read in a commonsensical manner to achieve its lawful purposes." We then consider the conduct of the police "in accomplishing the object of the search."

In re L.Q.

, 236 N.J. Super. 464, 470 (App. Div. 1989).

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Bivins, 435 N.J. Super. at 524. "The critical question is whether the search conformed to the authorization given by the warrant and was not otherwise

The State relies on language in the search warrant's preamble explaining patrol officer Samantha Sutter, who submitted the search warrant affidavits, applied for a search warrant on grounds she had probable cause to believe there was evidence of criminal activity at the Beachwood home and "with any and all persons arriving at, departing from and located therein at the time of the execution of the warrant . . . reasonably believed to be associated with the investigation." As noted, however, the warrant language authorizing the search was limited to the "premises hereinabove named" – the Beachwood home – and "such persons who may be therein or thereupon" those premises.

Based on the warrant's plain language, we reject the State's claim the warrant authorized the officers to stop defendant in the Honda approximately a mile from the premises – the Beachwood home – identified in the warrant. The warrant authorizes a search of the home and "such persons as may be therein and thereupon" the home. We interpret the "therein and thereupon" to have both spatial and temporal limitations. See Bailey, 568 U.S. at 201 (explaining there is "[a] spatial constraint defined by the immediate vicinity of the premises to be

unreasonable." Reldan

, 100 N.J. at 202.

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searched [that] is . . . required for detentions incident to the execution of a search warrant"). That is, the warrant authorizes a search of individuals who are therein and thereon the premises – the home – at the time of the execution of the warrant.

There is no evidence defendant was found "therein" or "thereupon" the premises at the time of the execution of the search warrant at the home . To the contrary, the evidence establishes, and the State does not dispute, defendant was stopped at a location remote from the premises, and the execution of the warrant did not begin, and was purposely delayed by the officers, until defendant had been stopped at the remote location. The court did not err by interpreting the search warrant in a manner that strictly respected the authorization it provided. Bivins, 435 N.J. Super. at 524. The court correctly determined the stop of defendant a mile away from the Beachwood home prior to the execution of the warrant at the premises exceeded the scope of the authorizing language of the search warrant.

The language in the warrant's preamble upon which the State relies also did not authorize the stop. The preamble explains only that the State believed there was probable cause to search "any and all persons arriving at, departing from and located therein at the time of the execution of the warrant." However,

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even if that language is given effect as authorization for a search, it does not support the stop of the Honda prior to execution of the warrant to search the premises.

Again, the officers purposely delayed executing the search warrant at the premises until they stopped defendant at a remote location. In accordance with the officers' plan and purpose, defendant was not departing the premises "at the time of the execution of the warrant." McCrae testified the officers did not execute the search warrant at the premises until defendant had been stopped twice, the CDS was discovered by Quinn, the Honda was impounded, and it was only the stop of defendant's vehicle that "triggered the execution" of the search warrant at the premises. Further, there is no evidence defendant was aware of the police surveillance of the Beachwood home that could otherwise characterize defendant's departure as flight from an impending execution of the warrant. Bivins, 226 N.J. at 16. Most simply, the State failed to establish defendant fell within the language of the preamble because its evidence showed defendant was not departing the premises at the time of the execution of the warrant and that was in accordance with the officers' plan and purpose.

We observe that caselaw approving the seizure and search of individuals pursuant to an "all persons-present" warrant is similarly tethered to the time of

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a warrant's execution. See Bivins, 226 N.J. at 16 (explaining an "all persons[- ]present" search warrant "authorized [police] to search individuals present at the residence, and that could encompass persons fleeing from the execution of the warrant"); State v. Carlino, 373 N.J. Super. 377, 394-96 (App. Div. 2004) (finding an "all persons present" search warrant permitted the seizure and search of an individual who arrived at the location of the search warrant during the execution of the warrant); L.Q., 236 N.J. Super. at 472 (holding "a warrant to search premises used for the continuing retail sale of CDS may authorize the search of all persons already present or arriving if the search is conducted at a time when sales ordinarily take place" and provided there are additional factors that suggest the person "is likely to be a party to the unlawful activity").

We further reject the State's argument that under Michigan v. Summers, 452 U.S. 692, 699 (1981), the warrant to search the Beachwood home provided an articulable basis to stop defendant's vehicle almost a mile from the premises to be searched. In Summers, the Court found a warrant to search a home permitted the detention of the home's occupant for the duration of the search when he was encountered on the home's front steps as police were about to search the home. Id. at 693-94. The Court found the detention was justified because "[t]he connection of an occupant to that home gives the police officer

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an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant." Id. at 703-04.

The Court has limited the scope of this "categorical" authority to detain an occupant incident to a search warrant's execution, to the "immediate vicinity" of the premises to be searched. Bailey, 568 U.S. at 199. Even in the case of an "all persons present" warrant, our Supreme Court has limited the authority to detain occupants incident to the execution of a warrant to the "unfolding scene of the warrant's execution." Bivins, 226 N.J. at 17. As noted, defendant was beyond either the "immediate vicinity," Bailey, 568 U.S. at 201, or the "unfolding scene of the warrant's execution," Bivins, 226 N.J. at 17, because the motor vehicle stop, and indeed the recovery of cocaine from the vehicle, occurred prior to the execution of the warrant at the Beachwood home.

We are not persuaded by the State's argument that concerns about officer safety in some manner broadened the scope of the search warrant they requested and were granted. If there were concerns about officer safety supporting the stop of the Honda at a location remote from the premises otherwise covered by the warrant, they should have been presented to the court with a request for a different, additional, or broader warrant than the ones issued. Of course, the officers plan of stopping defendant after he departed from the premises and prior

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to execution of the search warrant for the premises would not suffer from similar infirmities if defendant, perhaps as the officers' anticipated, left the premises in the BMW. That is not because the search warrant for the premises authorized the stop of the vehicle at a remote location prior to execution of the warrant; it would have been because the officers had also obtained a search warrant for the BMW. See Watts, 223 N.J. at 516-18 (upholding a pre-execution, offsite detention and search of a defendant because he was seized under a separate search warrant authorizing "a search of [the] defendant's person").

For these same reasons, we reject the State's argument that a stop of the white Honda was within the scope of the search warrant as "certain property" which had "been used" or was "intended for use" in connection with drug trafficking. The argument is not supported by the evidence. The State did not present evidence the Honda was ever on the premises or had been used during the controlled purchases from defendant that occurred weeks prior to the search. We therefore conclude the court properly rejected the State's argument that the search warrant for the Beachwood home authorized the motor vehicle stops of defendant in the Honda.

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III.

Because the motor vehicle stop was not supported by the search warrants, the State bore the burden of proving the stop was lawful under an exception to the warrant requirement. Bailey, 568 U.S. at 202 ("If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion . . . or an arrest based on probable cause."). The court found the stop of defendant's vehicle was supported by "reasonable and articulable suspicions" justifying an investigatory stop.

More particularly, the court found the police possessed information supporting a reasonable suspicion defendant "was engaged in . . . additional . . . criminal activity" and premised its conclusion on the "history of distribution," as well as "the information relative to . . . defendant using a vehicle" during the two "controlled buys" that occurred during the weeks prior to the motor vehicle stop. The court noted the search warrant affidavits reported defendant used a different vehicle – the BMW – during the controlled buys, but, as noted, the court did "not find that to have any [c]onstitutional significance."

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Defendant argues the court erred in determining the initial stop could be upheld as a valid investigatory stop. He claims McCrae did not know he was the driver of the white Honda until the second stop occurred because McCrae did not see him enter the vehicle, and therefore information regarding the controlled buys could not support the initial stop. Defendant also claims there was no evidence establishing reasonable suspicion he was engaged in criminal activity at the time of the initial stop. He argues the court "conflat[ed] the authority to arrest with the authority to search" because the police lacked authority to conduct a motor vehicle stop "to discuss controlled purchases [that occurred] weeks earlier."

The record does not support a finding the officers pulled over defendant's vehicle to conduct an investigatory stop. As McCrae explained, defendant did not commit any motor vehicle offenses and the officers stopped defendant solely to detain him at a location remote from the Beachwood home prior to execution of the search warrant at those premises. Nonetheless, we consider whether there was information known to McCrae at the time that would justify an investigatory stop because in considering the constitutionality of a search or seizure,"[a]lthough an officer may testify to his or her subjective intent, the crucial inquiry is whether the officer's conduct was objectively reasonable."

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O'Neal, 190 N.J. at 614; see

State v. Cryan, 320 N.J. Super. 325, 331 (App. Div.

1999) ("Putting to one side" the fact none of the justifications offered by the State to support a motor vehicle stop as an investigatory stop "came to the officer," and nonetheless considering whether the circumstances "objectively viewed would justify" an investigatory stop).

"An 'investigatory stop' permits law enforcement officers to detain an individual temporarily for questioning." State v. Maryland, 167 N.J. 471, 486 (2001). "An officer may stop a motor vehicle only upon 'articulable and reasonable suspicion' that a criminal or motor vehicle violation has occurred."

(1979)). The "reasonable-suspicion standard" requires "some minimal level of objective justification for making the stop." State v. Nishina, 175 N.J. 502, 511 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). An investigatory stop "may not be based on arbitrary police practices, the officer's

investigatory stop is challenged, the State bears the burden of showing "the stop was 'based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal

Atwood, 232 N.J. at 444 (quoting

Delaware v. Prouse, 440 U.S. 648, 663

subjective good faith, or a mere hunch."

State v. Shaw, 237 N.J. 588, 612 (2019)

(quoting State v. Coles

, 218 N.J. 322, 343 (2014)). Where the lawfulness of an

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activity.'" State v. Alessi, 240 N.J. 501, 518 (2020) (quoting State v. Mann, 203 N.J. 328, 338 (2010)).

In evaluating whether reasonable suspicion exists, we must consider "the totality of the circumstances." Ibid. In doing so, we "must assess whether 'the facts available to the officer at the moment of the seizure . . . warrant[ed] a [person] of reasonable caution in the belief that the action taken was appropriate.'" Mann, 203 N.J. at 338 (quoting State v. Pineiro, 181 N.J. 13, 21 (2004)). "Police officers should consider whether a defendant's actions are more consistent with innocence than guilt; however, simply because a defendant's actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the

We first reject defendant's claim McCrae did not have adequate information to support a reasonable suspicion defendant was driving the Honda. An officer may lawfully conduct an investigatory stop in reliance on

230-33 (1985). "It is understood 'that effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act

actions are consistent with guilt."

State v. Arthur, 149 N.J. 1, 11 (1997).

observations made by fellow officers.

United States v. Hensley, 469 U.S. 221,

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swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.'" Crawley, 187 N.J. at 457 (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976)).

The evidence shows Quinn observed defendant exit the Beachwood home, enter the white Honda, and depart from the residence. He relayed that information to the other officers, and McCrae followed the Honda based on Quinn's report. McCrae therefore possessed sufficient information supporting a reasonable suspicion defendant was driving the Honda when he directed Petrecca to effectuate the motor vehicle stop.

Nonetheless, based on the evidence presented, we are not convinced the evidence established circumstances supporting a reasonable and articulable suspicion defendant was engaged in criminal activity when the initial motor vehicle stop occurred. As found by the motion court, the only information known to McRae at the time of the stop related to the two controlled buys, which the court characterized as defendant's "history of distribution," and the "information relative to . . . defendant using a vehicle."

We first note the State does not argue, and the court did not find, the stop was justified based on an inferred investigatory purpose to ask defendant questions regarding the completed, uncharged, controlled buys which occurred

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in the weeks prior.3 See Alessi 240 N.J. at 523-24 (considering whether an investigatory stop for questioning was justified by a reasonable suspicion the defendant was involved in a completed crime that had occurred a month prior). Instead, the court found the two controlled buys provided reasonable suspicion for the officers to believe defendant was engaged in additional criminal activity at the time of the motor vehicle stop such that the stop was supported by a reasonable and articulable suspicion.

In a case involving a motor vehicle stop, our Supreme Court in State v. Birkenmeier held that reliable information may provide the requisite reasonable suspicion to conduct an investigatory stop of a defendant suspected of using a vehicle to traffic drugs. 185 N.J. 552, 561-62 (2006). In Birkenmeier, the police received a tip from a reliable confidential informant providing the "defendant's name; [the] defendant's address; [the] defendant's physical description; the make, model and license tag number of [the] defendant's car," and that the "defendant would be leaving his home at 4:30 p.m. to make a marijuana delivery; and . . . would be carrying the drugs in a laundry tote bag." Id. at 561. The

Because the court did not find the stop was supported by an investigatory purpose to ask defendant questions regarding the completed, uncharged controlled buys, and because there is no evidence that was the case, it is unnecessary to address defendant's argument that such circumstances, if proven, could not properly justify the initial motor vehicle stop.

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Court also noted the motor vehicle stop at issue occurred after the police observed the defendant leaving the home at 4:30 p.m., the identified time, with a laundry tote bag, the identified receptacle, and entering the vehicle identified by the informant. Ibid. The Court found those "collective circumstances," supported a reasonable and articulable suspicion the defendant was engaged in criminal activity at the time of the challenged motor vehicle stop following the defendant's departure from the home. Id. at 561-562.

Here, unlike in Birkenmeier, McCrae had information concerning the two controlled buys that occurred during the weeks prior to the motor vehicle stop, but there is no evidence he or any of the other officers had information supporting a reasonable suspicion defendant left the Beachwood home in the Honda to transport CDS, to make a drug transaction, or to engage in any other criminal activity. Quinn did not testify he observed defendant carry anything giving rise to a reasonable suspicion of criminal activity when he entered the Honda, and, neither Quinn nor McCrae offered any evidence defendant had previously used the Honda for any criminal purpose. Additionally, there is no evidence supporting a reasonable and articulable suspicion defendant was engaged in criminal activity every time he drove a vehicle simply because on two prior occasions, occurring weeks before, he had done so.

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In Pineiro the Court found an officer's observation of a defendant known to have "been involved with illicit drugs," exchanging a pack of cigarettes in a high crime area, provided sufficient reasonable suspicion to conduct an investigatory stop because in the officer's experience "drugs sometimes are

found an officer's rational inference a drug transaction had occurred justified an investigatory stop, because it was informed by his experience and knowledge drugs are often transported in paper bags, and the officer had personally observed an individual briefly enter and then exit the defendant's vehicle with a paper bag, in a high drug activity area, followed by the defendant's immediate departure from the area. 149 N.J. at 10-12.

McCrae and Quinn offered no testimony regarding any circumstances supporting an inference defendant was engaged in criminal activity at the time of the initial motor vehicle stop. And simply entering a vehicle, even when in direct response to police presence, "is not enough to justify" an investigatory stop. State v. Costa, 327 N.J. Super. 22, 32 (App. Div. 1999).

As noted, McCrae did not testify he had a reasonable and articulable suspicion defendant was engaged in criminal activity at the time of the stop. However, even after consideration of all the extant circumstances that might

transported in cigarette packs." 181 N.J. at 25-27. Similarly, in Arthur

the Court

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objectively support a reasonable and articulable suspicion, we are convinced the court erred in finding the prior controlled buys and defendant's decision to take a drive in a vehicle that had no known association with any criminal activity established a reasonable and articulable suspicion defendant was engaged in criminal activity when the stop was effectuated. The decision to stop the vehicle was based solely on the officers' tactics and strategy related to the planned execution of the search warrant on the premises, and, perhaps at best by a hunch that fortuitously proved correct. Neither supports a motor vehicle stop consistent with applicable constitutional principles. Shaw, 237 N.J. at 612.

IV.
Our determination the initial stop was not supported by either the search

warrant for the premises or a reasonable and articulable suspicion of criminal activity does not end the inquiry. The court found that even if the initial stop was constitutionally infirm, the second stop was nonetheless sufficiently attenuated from any unconstitutional taint such that the evidence seized from the Honda should not be subject to the exclusionary rule. See Williams I, 192 N.J. at 15 (explaining "the exclusionary rule will not apply when the connection between the unconstitutional police action and the evidence becomes so

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attenuated as to dissipate the taint from the unlawful conduct" (quoting State v. Badessa, 185 N.J. 303, 311 (2005))).

The exclusionary rule bars the State from entering into evidence the "fruit of the poisonous tree"; that is, evidence obtained as a result of an unconstitutional search or seizure. Wong Sun v. United States, 371 U.S. 471, 485-88 (1963); State v. Shaw, 213 N.J. 398, 412-13 (2012). However, "[t]he exclusionary rule will not apply when the connection between the unconstitutional police action and the secured evidence becomes 'so attenuated as to dissipate the taint' from the unlawful conduct." Shaw, 213 N.J. at 414 (quoting Badessa, 185 N.J. at 311).

"The State bears the burden of proving attenuation." In Interest of J.A., 233 N.J. 432, 457 (2018). When determining whether evidence is sufficiently attenuated from an unconstitutional stop to dissipate the taint from unlawful police conduct, a court must consider "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct." Williams I, 192 N.J. at 15 (quoting State v. Johnson, 118 N.J. 639, 653 (1990)).

The Court has "found that resisting arrest and eluding the police after an unconstitutional stop can constitute intervening acts justifying admission of

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later-obtained evidence." Alessi, 240 N.J. at 525; see also Williams I, 192 N.J. at 16 ("[E]luding the police . . . in response to an unconstitutional stop . . . constitute[s an] intervening act[] and . . . evidence seized incident to [that] intervening criminal act[] will not be subject to suppression."); Seymour, 289 N.J. Super. at 88 (finding evidence obtained after a motorist eluded police admissible despite an unlawful attempt to stop the motorist in the first instance).

The motion court recognized the standard established in Williams I, quoting from the opinion in its decision. The court also cited to Seymour, 289 N.J. Super. at 86, and Crawley, 187 N.J. at 460, for the proposition that a defendant may not elude arrest even if in response to an unlawful direction to stop by the police.

Although referencing the applicable standard for attenuation, the court did not address and make findings as to each of the pertinent factors in reaching its conclusion the second stop and the resultant search of the Honda was sufficiently attenuated from the unlawful initial stop to permit admission of the evidence seized from the Honda. The court found only McCrae had probable cause to arrest defendant for eluding, and the court apparently found attenuation on that basis alone.

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To the extent we may correctly construe the court's probable cause determination as an implicit finding of "the presence of intervening

disobeyed an unlawful police command to stop does not require or permit a determination that evidence later seized as a result of an arrest for eluding is attenuated from an initial unlawful stop. State v. Williams (Williams II), 410 N.J. Super. 549, 560 (2009). Thus, the singular finding made by the court – that McCrae had probable cause to arrest defendant for eluding – does not support its determination the evidence recovered from defendant's vehicle after the second stop for eluding was attenuated from the initial unlawful stop of defendant's vehicle.

In Williams II, officers had been dispatched to a housing complex to deter a potential retaliatory shooting after a homicide had been committed in the area days earlier. Id. at 552. An officer observed the defendant, who was riding a bicycle, start pedaling away when he recognized the officers. Id. at 553. The officers ordered the defendant to stop, but he kept riding away. Ibid. The police chased defendant, and as they caught him, he dropped a box that contained cocaine to the ground. Ibid.

circumstances," Williams I

, 192 N.J. at 15, the mere finding defendant

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We held the stop was unlawful because the officers lacked reasonable and articulable suspicion for an investigatory stop. Id. at 558. We then considered whether the drug evidence was sufficiently attenuated from the unlawful stop and concluded the State had failed to establish "significant attenuation," and that failure warranted reversal of the order denying his motion to suppress. Id. at 564. We explained that under the second Williams I factor, although the defendant was arrested for obstruction, "there were no significant 'intervening circumstances' between the unlawful police command . . . and [the] defendant's discard of the box." Id. at 563 (quoting Williams I, 192 N.J. at 15). We found Williams I and other cases cited in that decision distinguishable because they involved intervening criminal conduct that created a risk of physical injury to police or the general public in addition to breaking "the chain of causation" between the officer's initial unlawful conduct and the later seizure of evidence. Ibid. We emphasized the "defendant did not force the officers to engage in a lengthy and dangerous pursuit to apprehend him or engage in any act of physical aggression against" the arresting officers. Ibid.

Here, although the motion court seemingly found intervening circumstances, it did not engage in any analysis or make any findings as to the significance of those intervening circumstances. As we explained in Williams

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II, "our Supreme Court in Williams [I] did not say that any conduct that could be found to constitute obstruction automatically constitutes 'an intervening act . . . that completely purge[s] the taint from the unconstitutional investigatory stop.'" Id. at 560 (second alteration in original) (quoting Williams I, 192 N.J. at 18). Proper determination of "'whether evidence is sufficiently attenuated from the taint of a constitutional violation' must be made on a case-by-case basis in light of the three-factor test" in Williams I. Ibid.

Because the motion court did not address two of the three factors essential to an attenuation determination, and it appears the court erroneously concluded defendant's arrest for eluding automatically constituted a "significant 'intervening circumstance[]" under the Williams I standard, id. at 563 (quoting Williams I, 192 N.J. at 15), we vacate the order denying defendant's suppression motion and remand for the court to reconsider its determination the State satisfied its burden of establishing "significant attenuation[,]" id. at 564.

On remand, the court shall address and balance the applicable factors: "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct." Williams I, 192 N.J. at 15 (quoting Johnson, 118 N.J. at 653). The court may in its discretion allow the parties to present any

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additional testimony, evidence, and argument necessary for a proper disposition of the attenuation issue. Neither our decision to remand nor anything in this opinion shall be construed to express an opinion on the merits of the issue, which should be decided anew by the court based on the record and any additional argument and evidence presented on remand.

Defendant's conviction and sentence shall remain undisturbed pending the result of the remand proceedings. If the court determines the evidence seized from the Honda is not sufficiently attenuated from the taint of the unlawful initial stop of the vehicle, it shall grant defendant's suppression motion, allow defendant to withdraw his guilty plea if he chooses to do so, and conduct such further proceedings as are appropriate.

Vacated and remanded. We do not retain jurisdiction.

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Sunday, May 15, 2022

STATE OF NEW JERSEY VS. ANDREW N. LAVRIK (19-05-0566, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1540-20)

In this case of first impression, the court considered whether a victim in a criminal matter has standing to appeal from a trial court order granting defendant's motion for a civil reservation, where the victim neither moved to intervene before the trial court nor this court, and the parties to the underlying action did not appeal. Because the victim was aggrieved by the trial court's order, and the civil reservation was neither raised during plea negotiations nor made a condition of defendant's guilty plea, the court held the victim has standing to appeal.

However, the court's decision was subject to certain caveats. The court held the victim should have moved to intervene for leave to appeal and file a brief before this court. Because the court would have granted the victim's motion and considered her brief on the merits, the court concluded the victim's procedural missteps were not fatal in this case.

As for the merits of the victim's claims, the court concluded the trial court's decision was procedurally and substantively flawed. Because it is unclear from the record evidence whether defendant faces a "precarious financial situation" absent a civil reservation, the court disagreed with the trial court's decision that defendant satisfied the requisite "good cause" standard for entry of the civil reservation order.

Moreover, defendant's admission to the pretrial intervention (PTI)program was conditioned on his guilty plea. Until defendant completes – or is terminated from – the PTI program, his guilty plea is considered "inactive" under the PTI statute and the applicable Attorney General guidelines. Thus, the order under review was premature.

The court therefore vacated the order under review and remanded for further proceedings.

Sunday, May 08, 2022

STATE OF NEW JERSEY VS. A.M. (11-02-0201, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3010-20)

A.M. suffers from end-stage multiple sclerosis, a progressive condition that renders her physically incapable of conducting any activities of daily life and requires twenty-four-hour daily medical care. After serving eight years of her forty-year sentence for the murder of her husband, she petitioned for release on parole to a medical facility pursuant to the Compassionate Release Act (CRA), N.J.S.A. 30:4-123.51e.

Subsection (f)(1) of the CRA authorizes a court to grant a petition for release on parole where there is clear and convincing evidence the inmate suffers from a "permanent physical incapacity" rendering the inmate "permanently physically incapable of committing a crime if released" and the conditions "under which the inmate would be released would not pose a threat to public safety." N.J.S.A. 30:4-123.51e(f)(1). Here, the motion court conducted hearings, determined A.M. satisfied the permanent physical incapacity and public safety requirements, but denied her petition based on its conclusion N.J.S.A. 30:4-123.51e(f)(1) vested it with discretion to do so.

The court reverses the denial of A.M.'s petition for compassionate release parole, concluding the plain language of the CRA does not vest a court with discretion to deny a petition where it otherwise determines there is clear and convincing evidence satisfying the permanent physical capacity and public safety criteria for release set forth in N.J.S.A. 30:4-123.51e(f)(1).

State v. O.D.A.-C. (085608) (Bergen County & Statewide) (A-78-20

Because a detective here repeatedly contradicted and minimized the significance of the Miranda warnings -- starting at the outset of the interrogation and continuing throughout -- the State cannot shoulder its heavy burden of proving defendant’s waiver was voluntary. The Appellate Division majority correctly concluded defendant’s statement had to be suppressed.

Sunday, May 01, 2022

STATE OF NEW JERSEY VS. ANTHONY D. KILLE (18-11-0871, GLOUCESTER COUNTY AND STATEWIDE) (A-1049-19)

Although the court affirmed defendant's aggravated manslaughter conviction and sentence, it reversed defendant's convictions for second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1), and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1), based on errors in the judge's final charge.

Despite charging self-defense, because he concluded defendant's return to the scene with a gun was "unreasonable," the judge refused to provide instructions on the unlawful purpose count that explains the use of a firearm for a "protective purpose." However, the model charge clearly explains the difference between self-defense, which requires both an honest and reasonable belief in the need to use force, and the use of a weapon for a protective purpose, which only requires an honest belief, not a reasonable one. See State v. Williams, 168 N.J. 323, 334–35 (2001) (explaining the difference between the two concepts).

Regarding the unlawful possession count, the judge failed to orally provide instructions regarding the permissible inference a jury may draw from the lack of any permit in defendant's name in the State Police database. Although the written instructions the judge provided included that portion of the model charge, the court held State v. Lindsey, 245 N.J. Super. 466, 475 (App. Div. 1991), and the current iteration of Rule 1:8-8(b)(2), do not relieve the judge of the obligation to orally provide instructions and not rely on copies of the written charge given to the jury.

STATE OF NEW JERSEY VS. S.J.C. (21-06-1120, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1162-21)

By leave granted, defendant appeals from a trial court order, denying his motion to dismiss an indictment that charges him with two counts of first-degree aggravated sexual assault by penile-vaginal penetration, and two counts of second-degree endangering the welfare of a child. The indictment was returned four months after the East Orange Police Department issued complaint-warrants; seven years after the alleged victim reported the crimes to the police; and fourteen years after the last incident allegedly occurred. The alleged victim, who was five and six years old at the time of the alleged incidents, is defendant's biological daughter.

On appeal, as he did before the motion judge, defendant contends his right to due process was violated in three respects. Initially, defendant maintains the State's delay in presenting the case to the grand jury violated his right to due process under the Fourteenth Amendment and, as such, the motion judge misinterpreted the standard enunciated by the Supreme Court in State v. Townsend, 186 N.J. 473 (2006). Secondly, defendant claims the indictment, and the State's ensuing response to his bill of particulars, failed to provide sufficient notice of the dates and locations of the sexual assaults under the criteria established in State in the Interest of K.A.W., 104 N.J. 112 (1986). Finally, defendant asserts the cumulative effect of the State's delayed prosecution and its vague indictment warrant dismissal under the fundamental fairness doctrine.

Because the court concludes defendant failed to demonstrate "actual prejudice" under the second Townsend prong, the court declines to address defendant's assertion under the first Townsend prong that the judge erred in requiring him to establish the State acted in bad faith. The court concludes defendant's due process rights were not violated by the State's delay in seeking the indictment and affirms the motion judge's decision in that regard. However, the court clarifies the burden of proof required under the first Townsend prong.

Turning to the sufficiency of the indictment under the K.A.W. factors, the court cannot discern from the record on appeal whether the State discharged its obligation to narrow the dates of the alleged incidents. Notably, the record is devoid of any evidence that the State attempted to question the victim about life events occurring around the time of the two alleged incidents. Accordingly, the court remanded the matter for the State to furnish the motion judge with documentary evidence of its efforts, if any, to narrow the time frame alleged in its responses to defendant's bill of particulars.

In view of its remand order, the court declined to address defendant's fundamental fairness argument.

STATE OF NEW JERSEY VS. STEPHEN A. ZADROGA (18-07-0550, HUDSON COUNTY AND STATEWIDE) (A-4432-19)

This criminal prosecution arises out of a head-on collision that killed a passenger in defendant’s car. Defendant had driven the car into the lane of oncoming traffic, and an accident reconstruction expert estimated he had been speeding at over 80 mph in a 25 mph zone at the moment of impact. His blood sample was extracted at a hospital later that day, yielding apparent test results from the State Police laboratory of a blood alcohol content (BAC) well over the legal limit.

A grand jury charged defendant with vehicular homicide, drunk driving, and other offenses. After seven witnesses for the State had testified, a testifying nurse revealed that the State had inadvertently misattributed to defendant the blood sample of a deceased hospital patient, which the hospital had mistakenly released, and which the State then failed to authenticate. In addition, it came to light that defendant's own blood sample had been irretrievably lost.

The trial judge declared a mistrial and found the State had acted in bad faith in its misattribution of the blood samples. The judge denied defendant’s motion to dismiss all charges with prejudice, but did dismiss with prejudice the three counts of the indictment that hinged on the BAC level. Defendant appealed; the State did not cross-appeal the judge’s finding of bad faith.

The court holds the proper remedy in this unusual situation is to re-present the matter to a new grand jury, solely based on the reckless driving allegations, without proof or contentions by the State of defendant's intoxication or impairment. The court rejects defendant’s claim of a double jeopardy violation, as the mistrial was justified on the grounds of manifest necessity. The court also rejects defendant’s argument that it is fundamentally unfair to maintain any charges against him.

STATE OF NEW JERSEY VS. THOMAS ZINGIS (20-04, OCEAN COUNTY AND STATEWIDE) (A-0905-20)

Defendant appeals his conviction after a trial de novo in the Law Division of driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50. He also appeals his sentence, arguing the court erred when it considered his conviction to be a second DWI offense for sentencing purposes.

The court affirms defendant's conviction. However, because the State did not prove beyond a reasonable doubt that his prior DWI conviction was not based on an Alcotest breath sample test result rendered inadmissible by the holding in State v. Cassidy, 235 N.J. 482 (2018), the court vacates his sentence, and remands for resentencing as a first offense.

Cassidy arose from the misconduct of State Trooper Marc Dennis who falsified Alcotest calibration records over a number of years. The Cassidy Court held that breath sample test results obtained on Alcotest instruments calibrated by Dennis are inadmissible, calling into question the validity of tens of thousands of DWI convictions based on such results. The Cassidy Court directed the State to provide notice to all defendants whose prior convictions were subject to challenge because they were based on test results from Alcotest instruments calibrated by Dennis. The State subsequently compiled a list of defendants who received notice as directed by Cassidy.

In the present appeal, defendant was convicted of DWI during the time Dennis was falsely certifying Alcotest calibration records. At sentencin g for the present offense, defendant argued the State was required to produce the calibration records from his prior conviction to prove that Dennis was not involved in his conviction. The trial court agreed with the State's argument that the absence of defendant's name on the list of defendants who were sent a Cassidy notice was sufficient proof that defendant's prior conviction was not tainted by Dennis.

The court held that in the absence of evidence of how the Cassidy list was compiled and that it definitively includes all prior DWI convictions that relied on test results from Alcotest instruments calibrated by Dennis, the absence of a defendant's name on the list was insufficient proof that the defendant's prior conviction was not invalidated by Cassidy. The court made a similar holding with respect to the State's assertion, without supporting evidence, that Dennis was not involved in any DWI convictions that arose out of Camden County. The court noted that the burden of Dennis's malfeasance as a law enforcement officer falls on the State, which cannot escape on the grounds of convenience and expediency its obligation to prove that a prior conviction on which it relies for an enhanced sentence in a subsequent prosecution was not tainted by his misconduct.

Sunday, April 24, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, April 11, 2022

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

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

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

Sunday, April 10, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reversed and conviction vacated.

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

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

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

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

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

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

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

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

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

Sunday, April 03, 2022

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

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

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

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

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

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

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

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

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

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

Criminal Law- Recent Cases NJ Kenneth Vercammen Law Office. 732-572-0500 Edison, NJ

Monday, May 16, 2022

Search of car not authorized where warrant pertained to house STATE v. DOMINIC L. MCGRIFF,

Sunday, May 15, 2022

STATE OF NEW JERSEY VS. ANDREW N. LAVRIK (19-05-0566, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1540-20)

Sunday, May 08, 2022

STATE OF NEW JERSEY VS. A.M. (11-02-0201, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3010-20)

State v. O.D.A.-C. (085608) (Bergen County & Statewide) (A-78-20

Sunday, May 01, 2022

STATE OF NEW JERSEY VS. ANTHONY D. KILLE (18-11-0871, GLOUCESTER COUNTY AND STATEWIDE) (A-1049-19)

STATE OF NEW JERSEY VS. S.J.C. (21-06-1120, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1162-21)

STATE OF NEW JERSEY VS. STEPHEN A. ZADROGA (18-07-0550, HUDSON COUNTY AND STATEWIDE) (A-4432-19)

STATE OF NEW JERSEY VS. THOMAS ZINGIS (20-04, OCEAN COUNTY AND STATEWIDE) (A-0905-20)

Sunday, April 24, 2022

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

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

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

Monday, April 11, 2022

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

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

Sunday, April 10, 2022

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

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

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

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

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

Sunday, April 03, 2022

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

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

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