State v. James Hemenway (A-19-18) (081206) July 24, 2019

State v. James Hemenway (A-19-18) (081206) July 24, 2019 

ALBIN, J., writing for the Court. 

         The Prevention of Domestic Violence Act (Domestic Violence Act or Act), N.J.S.A. 2C: 25-17 to -35, empowers a judge to issue a temporary restraining order (TRO) to protect a victim of domestic violence and to enter an order authorizing the police to search for and seize from the defendant’s home, or any other place, weapons that may pose a threat to the victim. In this appeal, the Court considers whether the reasonable cause standard for the issuance of a domestic violence search warrant for weapons set forth in N.J.S.A. 2C: 25-28(j) and a 2002 case is incompatible with the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution. 

         In June 2012, D.S. filed a domestic violence complaint against defendant James Hemenway and requested a TRO barring him from having contact with her and members of her family, as well as from possessing “firearms, knives, & [a Taser].” D.S. appeared before a Family Part judge, who asked: “[Do you have a[n] awareness that he has any weapons?” When D.S. said “yes,” the court asked, “What kind of weapons do you claim he has?” D.S. replied, “Handguns, knives.” The court: “A handgun?” D.S.: “Knives, blades.” The court: “Handguns?” D.S.: “Switchblades.” D.S. stated that Hemenway kept those weapons in his three cars and his apartment. The court entered a TRO and authorized the issuance of a warrant to “search for and seize . . . handguns, knives, switchblades” from Hemenway’s home and three vehicles. The court did not articulate a reasonable cause or probable cause basis for believing that Hemenway possessed firearms or switchblades or that they would be found in the places to be searched. 

         On June 29, 2012, two Old Bridge police officers advised Hemenway outside his apartment that they possessed a TRO and a warrant to search his residence for weapons. The officers did not allow Hemenway to call his attorney, and Hemenway then refused their order to allow them entry to his apartment. Hemenway was arrested for obstructing the execution of the domestic violence warrant. Officers entered the apartment and observed what appeared to be marijuana and cocaine. Based on that discovery, a detective applied for and received a telephonic search warrant for the residence and the vehicles. The police searched and recovered drugs, bullets, and cash. No handguns or switchblades were found. Defendant was charged with four drug offenses. 

         The trial court denied Hemenway’s motion to suppress, concluding that the telephonic criminal search warrant application set forth probable cause for the issuance of a warrant to search Hemenway’s residence and that the domestic violence warrant provided an adequate and independent basis for the search of the vehicles. Hemenway appealed, challenging the validity of the domestic violence and telephonic search warrants. The Appellate Division affirmed the denial of Hemenway’s motion to suppress. 454 N.J. Super. 303, 307 (App. Div. 2018). The Court granted Hemenway’s petition for certification. 236 N.J. 42 (2018). 

       HELD:The beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms. Before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded suspicion. 

         1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, in nearly identical language, both guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and that “no Warrants shall issue, but upon probable cause.” Whether a government official is armed with a criminal warrant or a civil or administrative warrant, physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Because a warrantless search is presumptively invalid, the burden falls on the State to demonstrate that the search is justified by one of the few specifically established and well-delineated exceptions to the warrant requirement. One principal exception to the warrant requirement, as applied to the search of a home, is the exigent circumstances doctrine, which allows warrantless entry if police officers possess an objectively reasonable basis to believe that prompt action is needed to meet an imminent danger. Entry into the home must be premised on a search warrant issued on probable cause or on an exception to the warrant requirement, such as consent or exigent circumstances.  

         2. The State claims that, under the special needs doctrine, a judicial order for the seizure of weapons under the Domestic Violence Act does not have to comport with the probable cause requirement. But neither the United States Supreme Court nor the Supreme Court of New Jersey has ever sanctioned the issuance of a warrant for the search of a home on less than probable cause under the special needs doctrine, except in the case of probationers. The special needs doctrine is applied in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable. 

         3. The Domestic Violence Act provides access to both civil and criminal remedies and sanctions. One such remedy is to prevent a person judged to be a domestic violence abuser from having access to a weapon, including a firearm, which poses an imminent threat to a victim who has sought the protection of our courts. See N.J.S.A. 2C:25-28(j). The court is thus empowered to “order[] the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located.” N.J.S.A. 2C:25-28(j) (emphasis added). 

         4. The language of the Domestic Violence Act, standing alone, lacks clear standards to guide a court in ordering a civil warrant for the seizure of weapons. Through judicial interpretation of the Act’s provisions, New Jersey courts have imposed standards to conform the Act to the Federal and State Constitutions. See State v. Johnson, 352 N.J. Super. 15, 20 (App. Div. 2002); see also State v. Dispoto, 189 N.J. 108, 120-21 (2007). In Johnson, the Appellate Division set a reasonableness standard rather than the traditional probable cause standard for its three-part test. 352 N.J. Super. at 19-20. In Dispoto, the Court disapproved of one part of the Johnson standard, holding that “before a domestic violence temporary restraining order and accompanying search warrant can be issued, the court must find probable cause to believe that an offense of domestic violence has occurred.” 189 N.J. at 120, 121 n.3 (emphasis added). The validity of the two other parts of the Johnson standard and the constitutionality of N.J.S.A. 2C:25-28(j) are now squarely before the Court. 

         5. A search warrant for weapons under N.J.S.A. 2C:25-28(j) is a civil warrant aimed not at recovering evidence of a crime, but rather at seizing weapons that may pose an imminent risk to a domestic violence victim. But the Fourth Amendment and Article I, Paragraph 7’s prohibition against unreasonable searches and seizures and their command that warrants issue upon probable cause apply not only to criminal investigations but also to searches related to civil or administrative investigations. 

         6. The important goals of the Domestic Violence Act can be achieved within our constitutional scheme of ordered liberty. The sanctity of the home can be preserved while providing thorough safeguards to domestic violence victims. The Court notes that other jurisdictions have conformed their domestic violence statutory schemes to the Fourth Amendment and that N.J.S.A. 2C:25-28(j)’s authorization of a search warrant issued on less than probable cause apparently is unique to New Jersey.  

         7. The special needs doctrine has applied almost uniformly to those exceptional circumstances involving warrantless searches and seizures. In this case, a domestic violence victim appeared before a court seeking a TRO and a warrant to seize weapons from an alleged abuser. This is not an exceptional circumstance that renders the warrant and probable cause requirement impracticable.  

         8. In Johnson and Dispoto, the courts engrafted standards onto the spare language of N.J.S.A. 2C:25-28(j) to save it from a constitutional challenge. The standards that the Court adopts today will ensure that N.J.S.A. 2C:25-28(j) conforms to the Federal and State Constitutions, while safeguarding domestic violence victims. Before issuing a search warrant for weapons as part of a TRO under the Domestic Violence Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. One long-established definition for probable cause for a criminal search warrant is a well-grounded suspicion. As with any other search warrant, hearsay may be sufficient to establish probable cause, so long as there are facts, which give the statement an appearance of trustworthiness. Courts can credit information received directly from a citizen source. Because domestic violence victims are often unrepresented, under considerable stress, in fear of their alleged abusers, and may have language barriers, courts must be patient and take the time necessary to make a complete record. The court should ask the victim questions that will elicit the victim’s basis of knowledge that the defendant possesses weapons and that the weapons will be found at a home or other location. Additionally, the court may make reasonable inferences and accredit trustworthy hearsay when establishing a victim’s basis of knowledge regarding the abuser’s ownership and location of weapons. 

         9. Applying those principles as well as the then-existing standards for issuing a domestic violence warrant, the Court finds that the search warrant issued here does not comport with the Fourth Amendment or Article I, Paragraph 7 of the State Constitution. The family court issued the search warrant for weapons based on a deficient record and without making the necessary findings to justify the warrant’s issuance. Therefore, the search of Hemenway’s home was unreasonable under the Federal and State Constitutions. All evidence derived from the search of his home, including the drugs and cash, must be suppressed based on the defective domestic violence warrant. The fruits of the unlawful search of the home were used to form the factual basis for the issuance of the criminal search warrants. Thus, the evidence secured from those searches must be suppressed as well. The Court reaches that conclusion not only based on the Fourth Amendment, but also, separately, based on Article I, Paragraph 7 of the State Constitution. Hemenway now has the option to withdraw his guilty plea in view of the order suppressing all evidence derived from the defective domestic violence warrant. 

The judgment of the Appellate Division is REVERSED and the matter is REMANDED for further proceedings. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion. 

State v. Shaw (A-33/34-16) (078247) Decided May 13, 2019

State v.   Shaw (A-33/34-16) (078247) Decided May 13, 2019 

TIMPONE, J., writing for the Court. 

In this case, the Court considers whether evidence found in a motel room and vehicle and defendant Nathan Shaw’s statement to police should have been suppressed. 

Jasmine Hanson was staying at the Crystal Inn motel in Neptune City. She called the front desk to complain she had been bitten by bed bugs. The motel owner inspected Hanson’s room using his pass key. He saw a plastic bag containing what he suspected were narcotics and called the police. Officer Jason Rademacher had the motel owner lead him to Hanson’s room where, again using his pass key, the motel owner unlocked the door for the officer to enter. Inside, Rademacher saw what appeared to be drugs, as well as a measuring cup and scale. A criminal history check on Hanson revealed an outstanding traffic warrant and a recently issued traffic summons on a 2012 black Chevrolet Tahoe, and its plate number. 

Rademacher transported the evidence to the station and returned in an unmarked vehicle to wait for Hanson’s arrival. Shortly thereafter, the black Tahoe pulled into a parking space. The front passenger was Keon Bolden, Hanson was in the driver’s seat, and in the back seat were Shakera Dickerson and Shaw. Rademacher arrested Hanson. The officer asked to search the Tahoe; Hanson refused consent. A drug-detection canine was brought to perform an exterior sniff of the vehicle. The officers conducted warrant checks on the remaining passengers. Only Dickerson’s came back positive. She was arrested and placed in a second patrol car. Shaw and Bolden were patted down and seated in separate patrol cars, uncuffed. Hanson again refused to consent to a search of the vehicle. 

The handler led the canine to the Tahoe. Shaw told an officer that he had a bag of marijuana in the car, and the canine alerted to the presence of narcotics. Shaw was arrested. An officer told Hanson that Shaw admitted he had marijuana in the vehicle and, at that point, she consented to the vehicle search. She signed a consent-to-search form, but did not initial the line attesting that she gave her consent free of coercion. 

The officers found drugs in the car and within a tote bag on the back seat of the car. All four passengers were charged with multiple counts of possession and possession with intent to distribute the drugs found in both the motel room and the tote bag. 

All defendants moved to suppress the drug evidence seized from the motel room and the Tahoe. The motion court denied their suppression motion. Shaw pleaded guilty to one count of third-degree possession of CDS with intent to distribute.

The Appellate Division affirmed the denial of Shaw’s motion to suppress the contents of the tote bag, finding he lacked standing to challenge its search, but reversed the denial of his motion to suppress his statement made to police while in their custody. In response to an argument by a co-defendant, the panel also found that the warrantless search of the motel room was illegal. 

The Court granted Shaw’s petition for certification, 228 N.J. 506 (2017), and the State’s cross-petition, 228 N.J. 518 (2017). Following oral argument on November 8, 2017, the Court ordered this case remanded to the Law Division for the court “to address the application of the inevitable discovery doctrine and the independent source doctrine to the admissibility of the evidence seized in the motor vehicle.” 

On remand, the parties presented no further testimony. Relying on the record as it had been developed at the suppression hearing, the court determined the inevitable discovery and the independent source doctrines both applied and that the evidence was admissible. 

HELD:Defendant’s confession and the drug evidence must be suppressed. 

1. Under the third-party intervention doctrine, a person’s reasonable expectation of privacy is not violated by the actions or search of a private actor. See State v. Wright, 221 N.J. 456, 459 (2015). Fourth Amendment protections apply only to governmental action, and a subsequent search by law enforcement -- so long as it does not exceed the scope of the private search -- may not require a warrant if it does not infringe any constitutionally protected privacy interest that had not already been frustrated as a result of the private conduct. The doctrine traditionally applied to searches of objects either physically conveyed or reported to the police. See id. at 459, 468-69. In Wright, the Court held that the doctrine could not be applied to searches of private dwellings -- including rented apartments -- under our State Constitution. Id. at 476. Although Wright discussed apartments, its reasoning applies with equal force to motel rooms. Where a motel owner or employee finds contraband in a guest’s room, “the police can use that information to obtain a search warrant and then conduct a search.” Id. at 478-79. “In the time it takes to get the warrant, police officers can secure the [motel room] from the outside, for a reasonable period of time, if reasonably necessary to avoid any tampering with or destruction of evidence.” Id. at 478. Here, the motel search was unconstitutional and the illegal fruits of that search must be suppressed.   

2. Police must have particularized suspicion in order to conduct an investigatory stop, and the duration of an investigative stop must be limited in time and scope to the purpose that justified the stop in the first place. If the officer’s conduct is more intrusive than necessary, the investigative stop turns into a de facto arrest. Once it was determined that Shaw was 

unarmed and had no outstanding warrants, there was no particularized suspicion that Shaw was engaged in criminal activity that would justify Shaw’s further detention. Under the circumstances here, isolating Shaw in the back of a patrol car despite a negative warrant check was a de facto and an unlawful arrest.   

3. It was during that period of unlawful detention that Shaw stated there was marijuana in the bag. To decide whether to suppress a statement obtained after an unlawful arrest, courts consider three factors: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct. Here, Shaw’s confession was a product of his unlawful de facto arrest and must be suppressed. Shaw’s confession occurred during his unlawful detention, and the Court is not persuaded that the presence of the drug-detection canine purged the taint of the illegal arrest. Shaw was never informed of his right to remain silent and was held without individualized suspicion. Although his confession was not made in response to an interrogation, the Court is not convinced it was a product of his own free will.   

4. The Court next addresses Shaw’s standing to challenge the search of the tote bag. Whenever a defendant is charged with committing a possessory drug offense -- as in this case -- standing is automatic, unless the State can show that the property was abandoned or the accused was a trespasser. The tote bag was found in the back seat of a car that had four occupants. They were ordered out of the car. The State simply has not established that the bag was abandoned property. The trespasser exception has even less relevancy. The record is devoid of any evidence that Shaw put the drugs in the tote bag without Dickerson’s knowledge. Shaw had automatic standing to challenge the search of the bag.   

5. The Court thus considers whether the search fell within the consent-search exception to the warrant requirement. An individual’s voluntary consent to search a constitutionally protected area eliminates the need for law enforcement to obtain a warrant. When Hanson consented to the search, she had already been arrested and handcuffed. The officers asked her multiple times for consent to search the vehicle. She relented only after an officer informed her of Shaw’s unlawfully obtained confession. The warrantless search of the Tahoe was unconstitutional and the evidence seized through that search is therefore subject to suppression. Nor can the evidence come in through Shaw’s confession.  

6. The State failed to make the necessary showing under either inevitable discovery or the independent source exceptions to the exclusionary rule. Accordingly, the unconstitutionally obtained evidence remains suppressed.   

The judgment of the Appellate Division is affirmed in part and reversed in part and the matter is remanded to the trial court. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’S opinion. 

STATE OF NEW JERSEY VS. R.G. (17-04-0189, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3090-18T3)

STATE OF NEW JERSEY VS. R.G. (17-04-0189, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3090-18T3) The court affirms an order of the trial court that denied the State's request to medicate defendant involuntarily with antipsychotic medication to restore him to competency to stand trial. The court agrees with the trial court that the State did not satisfy the test under Sell v. United States, 539 U.S. 166 (2003), because the first factor is determined by consideration of defendant's probable sentence not simply the maximum sentence exposure for the offense charged. The trial court also must consider the potential effect of the medication on defendant's right to a fair trial when applying Sell. Because the Sell test was not satisfied, we have no occasion to determine whether our State Constitution would afford a defendant greater protection of individual liberty and privacy rights.

State v. Rafael Camey (080574)(Passaic County and Statewide) (A-73-17

State v. Rafael Camey (080574)(Passaic County and Statewide) (A-73-17; 081128)

The Court affirms the suppression of DNA evidence from the first buccal swab. The trial court’s thorough and detailed reasons for denying admission of this evidence, under either of the State’s two inevitable discovery arguments, are clearly sustainable on appeal. However, the State’s application for a second buccal swab calls for a remand for further proceedings consistent with this opinion and its new test, derived in part from aspects of the independent source doctrine: To apply for a new buccal swab for DNA evidence under Rule 3:5A, the State must demonstrate probable cause for the new search. That showing may include evidence that existed before the initial invalid search, but cannot be tainted by the results of the prior search. In addition, to deter wrongdoing by the police, the State must show by clear and convincing evidence that the initial impermissible search was not the result of flagrant police misconduct.

State v. Joey J. Fowler and Jamil L. Hearns (080880) (Union County and Statewide) (A-5-18; 080880)

State v. Joey J. Fowler and Jamil L. Hearns (080880) (Union County and Statewide) (A-5-18; 080880)

Review of the alleged instructional error must be moored to the facts, and the Court concludes that the omission of the instructional charges was not error under the circumstances of this case. The Court therefore reverses and remands to the Appellate Division for consideration of defendants’ arguments that have not yet been addressed.

STATE OF NEW JERSEY VS. PAUL TIMMENDEQUAS (15-11-1377, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1243-16T2)

STATE OF NEW JERSEY VS. PAUL TIMMENDEQUAS (15-11-1377, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1243-16T2)

The State appeals the dismissal of two counts in the indictment that charged defendant with third-degree failure to register upon relocation as required by Megan's Law, N.J.S.A. 2C:7-2(a) and (d). When defendant was sentenced in 1999, the penalty imposed was a fourth-degree crime. The Law Division judge held the increased penalty violated the Ex Post Facto Clauses of the federal and state constitutions and dismissed those counts without prejudice to the State re-presenting the matter before a grand jury.

The court affirmed, but modified the order under review to permit amendment of the indictment to charge fourth-degree crimes.

STATE OF NEW JERSEY VS. MARK JACKSON STATE OF NEW JERSEY VS. JAMIE MONROE, ET AL. (18-04-0555 AND 18-05-0834, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-0022-18T2/A-2586-18T2)

STATE OF NEW JERSEY VS. MARK JACKSON STATE OF NEW JERSEY VS. JAMIE MONROE, ET AL. (18-04-0555 AND 18-05-0834, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-0022-18T2/A-2586-18T2)

On leave granted, the Middlesex County Prosecutor's Office appealed from the suppression of inmate telephone calls recorded by the Essex County Correctional Facility and the Middlesex County Department of Adult Corrections. The court held that the production of the recordings by the jails pursuant to the authority of grand jury subpoenas served upon them by the Prosecutor's Office did not violate an inmate's reasonable expectation of privacy, as they were advised at the beginning of every phone call that the conversations would be monitored and recorded. The court further held that the investigation and process did not violate the New Jersey Wiretapping and Electronic Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to -37, Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, and Article I Paragraph 7 of the New Jersey Constitution. The Act and Title III were not implicated by the sharing of the lawfully obtained information for lawful purposes by law enforcement agencies.

STATE OF NEW JERSEY VS. SUI KAM TUNG (13-06-0793, BERGEN COUNTY AND STATEWIDE) (A-3692-15T1)

STATE OF NEW JERSEY VS. SUI KAM TUNG (13-06-0793, BERGEN COUNTY AND STATEWIDE) (A-3692-15T1)

The court reverses defendant's conviction after trial for murder of his estranged wife's lover. The court determines that testimony and an unabridged audiotape of defendant's invocation of the right to counsel, his refusal to consent to a search of his computer and car, and the interrogating officer's opinion that defendant was lying cumulatively constitute plain error. The court relies on federal and out-of-state case law to decide that a refusal of consent to search is inadmissible in these circumstances. Given the paucity of direct evidence of defendant's guilt, this improperly admitted evidence undermines the integrity of the verdict.

State v. James Hemenway (081206)(Middlesex County and Statewide) (A-19-18; 080562)

State v. James Hemenway (081206)(Middlesex County and Statewide) (A-19-18; 080562)

The beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms. Before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded susp

State v. Kwesi Green (080562) (Essex County and Statewide) (A-56/57-

State v. Kwesi Green (080562) (Essex County and Statewide) (A-56/57-17; 080562)

Under the circumstances, the trial court properly suppressed the identification in this case. The Court proposes revisions to Rule 3:11 to offer clearer guidance on which photos officials should preserve when they use an electronic database. In addition, to guard against misidentification, the Court places on the State the obligation to show that an eyewitness was not exposed to multiple photos or viewings of the same suspect.

State v. L.H. (079974)(Essex County and Statewide) (A-59-17; 0

State v. L.H. (079974)(Essex County and Statewide) (A-59-17; 079974)

The State failed to prove beyond a reasonable doubt that, under the totality of the circumstances, defendant’s statement was voluntary. Defendant may withdraw his guilty plea. The failure to record the identification procedure as required by Delgado requires a remand to allow defendant the benefit of a hearing to inquire into the reliability of the identification and any other remedy deemed appropriate by the trial court.

STATE OF NEW JERSEY VS. SUI KAM TUNG (13-06-0793, BERGEN COUNTY AND STATEWIDE) (A-3692-15T1)

STATE OF NEW JERSEY VS. SUI KAM TUNG (13-06-0793, BERGEN COUNTY AND STATEWIDE) (A-3692-15T1)

The court reverses defendant's conviction after trial for murder of his estranged wife's lover. The court determines that testimony and an unabridged audiotape of defendant's invocation of the right to counsel, his refusal to consent to a search of his computer and car, and the interrogating officer's opinion that defendant was lying cumulatively constitute plain error. The court relies on federal and out-of-state case law to decide that a refusal of consent to search is inadmissible in these circumstances. Given the paucity of direct evidence of defendant's guilt, this improperly admitted evidence undermines the integrity of the verdict.

STATE OF NEW JERSEY VS. JUAN E. CRUZ-PENA (14-11-0932, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3775-16T3)

STATE OF NEW JERSEY VS. JUAN E. CRUZ-PENA (14-11-0932, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3775-16T3)

The jury in this case found defendant guilty of first-degree kidnapping, N.J.S.A. 2C:13-1(b), when he subjected his victim to four to five hours of uninterrupted sexual abuse. On appeal, defendant contended that the kidnapping charge should not have been presented to the jury because, notwithstanding the extended duration of the criminal attack, the victim's confinement was incidental to, and not independent from, the underlying sex crime with which defendant was separately charged.

Authoritative precedent interpreting the kidnapping offense defined in the New Jersey Code of Criminal Justice makes clear that not every confinement is a kidnapping. State v. LaFrance, 117 N.J. 583, 586 (1990). N.J.S.A. 2C:13-1(b) has been interpreted to require the State to prove that the victim's restraint was not merely incidental to the underlying substantive crime. Id. at 591. A key question is whether the circumstances of the confinement created a significant danger to the victim independent of the risk of harm posed by the underlying offense. Id. at 587.

Applying those legal principles to the particular facts of this case, this court concluded that the force and threats defendant used to physically restrain the victim were the same force and threats he used to commit the underlying sex crime. A close review of the proofs presented by the State at trial show there was never a point during the prolonged criminal episode when the victim was being restrained but was not being sexually abused. In other words, the acts constituting the alleged kidnapping were coextensive and coterminous with the acts constituting the alleged sexual assault. This court also concluded that the risk of harm the victim faced throughout her hours-long ordeal, while substantial, was not independent of the danger posed to her by defendant's continuous sexual attack.

Accordingly, the State failed to present sufficient evidence to submit the kidnapping count to the jury, and defendant was therefore entitled to a directed verdict of acquittal on that charge. This court's ruling with respect to the kidnapping charge does not affect defendant's convictions for aggravated criminal sexual contact and aggravated assault, and does not affect his sentence to parole supervision for life as a convicted sex offender.

State v. Kareem T. Tillery (079832) (Essex County and Statewide) (A-37-17; 079832)

State v. Kareem T. Tillery (079832) (Essex County and Statewide) (A-37-17; 079832)

The Court has significant concerns about the procedure followed in this case. Neither the script set forth on the Miranda card nor the detective’s statement to defendant addressed whether defendant agreed to waive his rights before answering questions. However, any error in the trial court’s admission of the statement was harmless beyond a reasonable doubt because the State presented overwhelming independent evidence of defendant’s guilt. And, although the State should have moved to dismiss the charges on which the jury had deadlocked before the court considered evidence relevant to those charges, the trial court did not abuse its discretion in applying three aggravating factors to impose an extended-term sentence at the high end of the statutory range.

State v. Rasul McNeil-Thomas (080758) (Essex County and Statewide) (A-77-17; 080758)

State v. Rasul McNeil-Thomas (080758) (Essex County and Statewide) (A-77-17; 080758)

The Court defers to the trial judge’s determination that the disputed footage was played for the jury during the State’s case-in-chief and notes that defense counsel consented to the admission of the surveillance footage depicting the moments surrounding the shooting, including the video segment at issue. The court did not abuse its discretion in permitting the prosecutor to play the video segment during his closing remarks, and the prosecutor’s comments were reasonable and fair inferences supported by the evidence presented at trial.

STATE OF NEW JERSEY VS. KENNETH D. THOMAS (17-06-0548, CUMBERLAND COUNTY AND STATEWIDE) (A-4540-17T4)

STATE OF NEW JERSEY VS. KENNETH D. THOMAS (17-06-0548, CUMBERLAND COUNTY AND STATEWIDE) (A-4540-17T4) The State filed an appeal from a judgment of conviction imposing a probationary sentence on defendant for third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), involving domestic violence, although aggravating factor fifteen, N.J.S.A. 2C:44-1(a)(15), was found by the court and thus a presumption of incarceration applied, N.J.S.A. 2C:44-1(d). Because the State has no authority to appeal from a sentence for a third-degree crime that is statutorily permitted, the court dismissed the appeal.

STATE OF NEW JERSEY VS. MORGAN G. MESZ (11-07-0761, UNION COUNTY AND STATEWIDE) (A-4534-15T3)

STATE OF NEW JERSEY VS. MORGAN G. MESZ (11-07-0761, UNION COUNTY AND STATEWIDE) (A-4534-15T3)

A jury convicted defendant of, among other offenses, two counts of attempted murder. Defendant raised pathological intoxication, N.J.S.A 2C:2-8(e)(3), as a defense, attributable to his use of then legally available synthetic marijuana. The prosecutor, while examining the State's psychopharmacology forensic expert, played portions of defendant's four-hour recorded interview. In summation, the prosecutor played portions of defendant's interview again, arguing that defendant's statements directly undercut the defense. The trial judge did not instruct jurors to limit their use of defendant's statements to assessing the merits of the expert's opinion.

The court vacated the conviction and remanded for a new trial, on the basis that the uncounseled statements were used as direct evidence in the absence of any limiting instruction, thereby violating long-standing precedent. A jury must be told that they may not use as direct evidence information provided by a defendant during a mental status interview with a State's expert

State v. Susan Hyland (079028) (Camden County and Statewide) (A-29-18; 080394)

State v. Susan Hyland (079028) (Camden County and Statewide) (A-29-18; 080394)

The State may appeal a Drug Court sentence only when the sentencing judge makes a plainly mistaken, non-discretionary, non-factual finding under N.J.S.A. 2C:35-14(a). Because application of N.J.S.A. 2C:35-14(a)(9) requires fact-finding and an exercise of the sentencing judge’s discretion, a sentence based on application of that factor is not appealable as an illegal sentence.

State v. Davon M. Johnson (080394) (Essex County and Statewide) (A-58-17

State v. Davon M. Johnson (080394) (Essex County and Statewide) (A-58-17; 080394)

The 2009 amendments to N.J.S.A. 2C:35-7’s sentencing structure reflect a more flexible sentencing policy that renders Caliguiri’s reasoning no longer viable. The presumption against PTI for second-degree offenders cannot be applied to N.J.S.A. 2C:35-7(a) offenders. And the presumption against PTI for the “sale” of narcotics was not applicable here because defendant was charged with possession with intent to “distribute” and there is no allegation or evidence that he sold the narcotics. The decision to deny defendant’s application must be reevaluated.

State v. Rene M. Rodriguez (081046) (Camden County and Statewide) (A-80-17

State v. Rene M. Rodriguez (081046) (Camden County and Statewide) (A-80-17; 081046)

An individual sentenced to a fixed minimum term of parole ineligibility under N.J.S.A. 2C:40-26(c) may not serve his or her sentence intermittently at night or on weekends pursuant to N.J.S.A. 2C:43-2(b)(7).