Testimony of restraining order prejudicial to defendant here STATE v. JOSHUA M. GRAHAM,

Testimony of restraining order prejudicial to defendant here STATE v.

JOSHUA M. GRAHAM,

Defendant-Appellant. _______________________

Submitted February 1, 2021 – Decided June 8, 2021

Before Judges Hoffman, Suter and Smith.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 17-05-0496.

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2693-18  NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

After a trial, defendant Joshua Graham was convicted of third-degree aggravated assault of a law enforcement officer, in violation of N.J.S.A. 2C:12-1(b)(5)(a), and third-degree resisting arrest, in violation of N.J.S.A. 2C:29-2(a)(3)(a). The trial court sentenced him to a six-year term of incarceration with a three-year term of parole ineligibility on the aggravated assault conviction, and to a concurrent four-year term on the resisting arrest conviction.

Defendant raises the following issues on appeal: POINT I:

THE COURT DENIED DEFENDANT A FAIR TRIAL BY MATERIALLY ALTERING THE MODEL JURY CHARGE'S DEFINITION OF A "LAW ENFORCEMENT OFFICER."

POINT II:

THE TRIAL JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO CHARGE THE JURY ON SELF DEFENSE, DESPITE EVIDENCE THAT SUCH AN INSTRUCTION WAS NOT WARRANTED. (NOT RAISED BELOW)

POINT III:

THE TRIAL JUDGE, IN VIOLATION OF THE RULES OF EVIDENCE, PERMITTED TESTIMONY ABOUT A DOMESTIC VIOLENCE RESTRAINING ORDER, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL.

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POINT IV: DEFENDANT'S SENTENCE IS EXCESSIVE.

We reverse and remand for the reasons set forth below. I.

On March 21, 2017 defendant and his girlfriend Lashonda Evans sat in the back of the Vineland municipal court, awaiting Evans' court case. Defendant was wearing a hooded sweatshirt, or "hoodie," in the courtroom. Officer Mark Rowe, a Vineland Police Department Class II special law enforcement officer, was assigned courtroom security duty that day. Officer Rowe motioned for defendant to remove the hoodie and defendant followed the officer's instructions.

After defendant removed the hoodie, Officer Rowe saw defendant wearing a red head covering and he asked defendant to remove it. Officer Rowe and defendant exchanged words, apparently in open court, regarding the red head covering, but defendant refused to remove it.

After defendant and Officer Rowe exchanged words, defendant stood in the courtroom and put his hands behind his back. At that moment, the municipal court judge asked defendant "to go outside." Officer Rowe escorted defendant and his girlfriend into the courtroom vestibule, between the court and the outer hallway. Officer Rowe testified defendant turned around and

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chest bumped him. Officer Rowe then told defendant he was under arrest, and a struggle ensued.

Evans testified that defendant never bumped Officer Rowe and that Officer Rowe "continuously" punched defendant in the face in the vestibule. She testified that while Officer Rowe threw punches at defendant, defendant used his arms to cover his head. As they struggled, defendant and Officer Rowe burst through double doors leading out of the vestibule, into a hallway outside the courtroom where they slammed into a wall simultaneously. After both men hit the wall, Officer Rowe slipped and fell on his back. Defendant remained standing and turned away, extending his arms behind his back with his wrists close together towards Officer Rowe. Officer Rowe leapt to his feet, grabbed defendant and continued the altercation.

Officer James Sharpless, another Vineland Class II special law enforcement officer, came to Officer Rowe's aid. Officer Sharpless testified that when he entered the fray, Officer Rowe was wrestling with defendant and together the officers forced defendant to the ground, telling defendant not to resist arrest while handcuffing him. Officers Rowe and Sharpless got defendant onto his feet and began walking him from the end of the hall to the lobby. Officers Rowe and Sharpless testified that defendant kept struggling and finally head-butted Officer Rowe, resulting in a bruise to his face. After

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the head-butt, Officer Rowe testified he punched defendant in the face. Defendant was taken into police custody and received medical treatment for injuries he sustained during the fight.

Before trial, defendant moved to dismiss the indictment, arguing Officers Rowe and Sharpless were not law enforcement officers for purposes of N.J.S.A. 2C:12-1(b)(5)(a). The court denied the application, finding the record established that both Officers Rowe and Sharpless were on duty and working in a law enforcement capacity on the date of the incident.

II.
At the motion to dismiss and at trial, the State called Captain Thomas

Austino of the Vineland Police Department to explain the responsibilities of a Class II special law enforcement officer, the position held by Officer Rowe. He testified that a Class II officer was a part-time position which had the "full powers of being a police officer while they are on duty." Such officers were assigned a maximum of twenty to twenty-eight hours of work per week. As Class II officers, they wore the same police uniform,1 were issued service weapons, and had the same arrest powers as full-time officers.

1
affixed to the shoulder of the part-time Vineland police officers' uniforms.

State-mandated patches identifying the wearer as a Class II officer are

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Defendant's theory of the case at trial was that he did not commit an aggravated assault or resist arrest. Defendant testified at trial that he never chest-bumped Officer Rowe, and that Officer Rowe punched him in the vestibule before they tumbled into the courthouse hallway where the remainder of the encounter was captured on security video. He testified that, while in the vestibule, he "covered up" and that Officer Rowe "just kept punching" him. Defendant did not testify to any facts that would constitute self-defense. He testified that he swung his head to avoid a chokehold Officer Rowe placed on him once Officers Rowe and Sharpless subdued him.

Evans, the girlfriend, also testified at trial. The State cross-examined her about certain conditions in a domestic violence restraining order2 defendant previously obtained against her. The State asked Evans if she was barred from contact with her children3 as a condition of the restraining order. This question was premised on the State's misreading of the restraining order.

2

3 Evans had two biological children with defendant at the time the restraining order was issued against her. She was pregnant with their third child at the time she testified at trial.

The record does not contain the domestic violence restraining order, although the trial transcript reveals extensive colloquy between counsel and the witnesses, as well as counsel and the court, on the order's existence. The record is undisputed that defendant obtained a restraining order against Evans, and that the order and the restraints were dismissed by a judge at the request of defendant prior to defendant's trial on these charges.

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There was no condition in the restraining order barring Evans from seeing her children. Evans testified that she was not barred from seeing her children, but the State and the trial court mistakenly believed the restraining order included such a condition, and that Evans' testimony was wrong. During sidebar, the court overruled defendant's N.J.R.E. 403 objection to the State's line of questioning. After Evans' testimony, but before defendant took the stand, the court instructed the jury they were "not to consider the fact that there may have been anything referenced in [the order] about restraining Mr. Graham from anything[,]" and "not [to] consider [the order's] existence as any evidence that Mr. Graham was restrained for any reason."

Defendant testified next. After lengthy cross-examination, the following exchange occurred:

PROSECUTOR: And when you say the situation that I brought up, you mean when you were filed [sic] restraining order against her?

DEFENSE COUNSEL: Objection, judge.

DEFENDANT: The restraining order was filed because, you know–-

THE COURT: What’s the objection? DEFENDANT: — her being pregnant. THE COURT: Hold on a second, sir.

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DEFENSE COUNSEL: Talk — talking about matters that aren’t relevant to this case.

THE COURT: Overruled. Go on.

DEFENDANT: I mean the reason why I filed a restraining order is because I got a baby on the way, I got two sons and I got a trial that I’m looking at. So I was like stressed out, you know what I mean. It’s not that she did anything wrong.

DEFENSE COUNSEL: Objection. THE COURT: All right. Sustained.

DEFENDANT: It’s — it’s not that she did anything wrong.

THE COURT: Move on. This — this is not relevant. Ladies and gentlemen, the reason for the restraining order, whatever those reasons may be, is not relevant to what you need to determine here.

After this exchange, the trial court gave two more curative instructions to the jury. First:

THE COURT: Ladies and gentlemen, and there’s other ones, right? Whatever did or didn’t happen with regard to a restraining order one way or another that’s not this case either, right?

After a brief exchange between the court and counsel off the record, the judge provided a second curative instruction:

THE COURT: — now, okay. You do know of the existence of a restraining order and you can may [sic] consider that only to the extent that it may affect the credibility of a witness with regard to the testimony

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here in the courtroom. Do you understand that? Either the [sic] existence of the restraining order itself. I don’t think it was even this witness that it was actually relevant to. But the reasons for therestraining order are not your concern, and I’m striking that, okay.

At the charge conference, the defense argued Officer Rowe's part-time status as a police officer was inconsistent with the definition of law enforcement officer contained in the model jury charge corresponding to N.J.S.A. 2C:12-1(b)(5)(a), which includes full-time employment status as part of its definition. The trial court disagreed, finding the definition of law enforcement officer used in the aggravated assault model jury charge was derived from N.J.S.A. 40A:14-152.2. The court looked to N.J.S.A. 2C:25- 19(c) to modify the model jury charge and chose not to be limited by the verbatim language in the original model charge. The statutory definition of "law enforcement officer" the court adopted reads as follows: "[A] person whose public duties include the power to act as an officer for the detection, apprehension, arrest and conviction of offenders against the laws of this state." Ibid.

On self-defense, defendant informed the court he would not request a charge. After summations and the charge, the jury found defendant guilty on both counts. After sentencing, defendant appealed.

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III.
The Jury Charges
A. Aggravated Assault of a Law Enforcement Officer

The court must not look at portions of the charge alleged to be erroneous in isolation; rather, "the charge should be examined as a whole to determine its overall effect," State v. McKinney, 223 N.J. 475, 494 (2015) (citing State v. Jordan, 147 N.J. 409, 422 (1997)), and "whether the challenged language was

554, 564 (2005). No party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate. State v. Outland, 458 N.J. Super. 357, 372 (App. Div. 2019) (citing State v. Thompson, 59 N.J. 396, 411 (1971)).

The trial court gave the jury a modified aggravated assault charge using the N.J.S.A. 2C:25-19(c) definition. Defendant did not object to the charge as given; therefore, we apply a plain error standard to review the trial court's modification of the model jury charge.

N.J.S.A. 2C:12-1(b)(5)(a), the aggravated assault statute, does not define the term, "law enforcement officer." The statute provides, in relevant part: "A person is guilty of aggravated assault if the person [c]ommits a simple assault

   

misleading or ambiguous."

State v. Nelson, 173 N.J. 417, 447 (2002) (citing

State v. Simon, 161 N.J. 416, 477 (1999)); see also State v. Torres

, 183 N.J.

  

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upon any law enforcement officer acting in the performance of the officer's duties while in uniform or exhibiting evidence of authority or because of the officer's status as a law enforcement officer . . . ." Ibid.

Defendant argues that while N.J.S.A. 2C:12-1(b)(5)(a) does not have a definition of "law enforcement officer," the model jury charge corresponding to N.J.S.A. 2C:12-1(b)(5)(a) has one. As written, the model charge defines the term this way:

A law-enforcement officer is any person who is employed as a permanent full-time member of any State, county or municipal law-enforcement agency, department or division of those governments and who is statutorily empowered to act for the detection, investigation, arrest, conviction, detention or rehabilitation of persons violating the criminal laws of this state.

[Model Jury Charges (Criminal), "Aggravated Assault Upon Law Enforcement Officer Attempting to Cause or Purposely, Knowingly or Recklessly Causing Body Injury (N.J.S.A. 2C:12-1(b)(5)(a), (b), (c), (d), (e), (f), (g))" (rev. Dec. 3, 2001).]

Defendant argues Officer Rowe's status as a part-time Class II officer excludes him from the class of protected persons in the aggravated assault statute, rendering the charge against defendant inapplicable. We disagree.

The question is how to interpret the term law enforcement officer in the context of this section of the Criminal Code. We review matters of statutory interpretation de novo. Verry v. Franklin Fire Dist. No. 1, 230 N.J. 285, 294

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(2017). Courts "look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen." McGovern v. Rutgers, 211 N.J. 94, 108 (2012) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009)). "The Legislature's intent is the paramount goal when interpreting a statute and,

generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano, 177 N.J. 250, 282 (2003)). Thus, any analysis to determine legislative intent begins with the statute's plain language. Ibid. Our authority is bound by clearly defined statutory terms. Febbi v. Bd. of Rev., 35 N.J. 601, 606 (1961). Where a specific definition is absent, "[w]e must presume that the Legislature intended the words it chose and the plain and ordinary meaning ascribed to those words." Paff v. Galloway Twp., 229 N.J. 340, 353 (2017) (citing DiProspero, 183 N.J. at 492). However, our review "is not limited to the words in a challenged

provision." State v. Twiggs, 233 N.J. 513, 532 (2018). A court "'can also draw inferences based on the statute's overall structure and composition,' and may consider 'the entire legislative scheme of which [the statute] is a part.'" Ibid. (alteration in original) (citations omitted). "We do not view [statutory] words and phrases in isolation but rather in their proper context and in

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relationship to other parts of [the] statute, so that meaning can be given to the whole of [the] enactment." Id. at 533 (alterations in original) (quoting State v. Rangel, 213 N.J. 500, 509 (2013)). Furthermore, "[t]he Legislature is presumed to be familiar with its own enactments, with judicial declarations relating to them, and to have passed or

preserved cognate laws with the intention that they be construed to serve a useful and consistent purpose." State v. Federanko, 26 N.J. 119, 129 (1958) (citing Appeal of N.Y. State Realty & Term. Co., 21 N.J. 90 (1956)).

N.J.S.A. 2C:12-1(b)(5) expressly protects an extensive class of public and private employees, including, but not limited to: law enforcement officers, paid or volunteer fire personnel, medical first responders, Department of Corrections employees, sheriff's deputies, and even select private sector employees such as utilities workers. Two qualifications common to this protected class of workers are that they can be identified as uniformed personnel or otherwise "be clearly identifiable as being engaged in the performance of" their official duties. N.J.S.A. 2C:12-1(b)(5)(a) to (k). There is no full or part-time qualification for protected class members in the express language of the statute.

The record shows Officer Rowe, in uniform and clearly exhibiting evidence of his authority, instructing defendant to remove his hoodie. After

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finding no definition of "law enforcement officer" in N.J.S.A. 2C:12-1(b), the trial judge looked to a cognate section of the criminal code, the Prevention of Domestic Violence Act,4 to find a relevant definition, N.J.S.A. 2C:25-19(c). The trial court next drew "'inferences based on [N.J.S.A. 2C:12-1(b)(5)'s] overall structure and composition,' and...consider[ed] 'the entire legislative scheme of which [N.J.S.A. 2C:12-1(b)(5)] is a part....'" Twiggs, 233 N.J. at 532. (citations omitted).

The court's consideration of Captain Austino's testimony and use of N.J.S.A. 2C:25-19(c) ensured "that the charge as a whole [was] accurate." Outland, 458 N.J. Super. at 372. We conclude that the trial court properly searched the New Jersey Criminal Code to find an appropriate definition of law enforcement officer from a cognate statute and applied that definition to modify the applicable jury charge consistent with the facts of this case. We are mindful that "[t]he Model Jury Charges are only guidelines, and a trial judge must modify the Model Charge when necessary so that it conforms with the facts, circumstances, and law that apply to the facts being tried." State v. Green, 318 N.J. Super. 361, 376 (App. Div. 1999) (citing State v. Concepcion, 111 N.J. 373, 379 (1988)), aff'd, 163 N.J. 140 (2000). The trial court's

4 N.J.S.A. 2C:25-17 to -35.

     

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resourceful modification of the model charge5 under these facts did not lead to an unjust result.

B. Self-Defense
Defendant never sought a self-defense instruction, and specifically

advised the court that no charge request on self-defense was forthcoming. Appellate courts will not consider questions or issues not properly presented to the trial court, unless the question raised on appeal goes to the jurisdiction of the trial court or concerns matters of great public concern. State v. Robinson, 200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). However, in the interest of justice, the appellate court may "'notice plain error not brought to the attention of trial court[,]' provided it is 'in the interests of justice' to do so." Ibid. (quoting R. 2:10-2). Given defendant's express disclaimer of self-defense before the trial court, there is no need for protracted analysis.

5

   

We note that the N.J.S.A. 2C:12-1(b)(5)(a) Criminal Model Jury Charge definition of law enforcement officer cites as its source a definition drawn from N.J.S.A. 40A:14-152.2, "Immunities and benefit of police officer in lawful exercise of statewide police powers." The definition, cited above, limits itself to "any person who is employed as a permanent full-time member of a municipal law enforcement agency." Because the trial court properly modified the charge consistent with the facts of the case, we need not decide whether the model charge's use of the qualified immunity statute's definition of a law enforcement officer, which distinguishes between full and part-time law enforcement officers, is appropriate.

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For completeness' sake, we note the use of a self-defense jury instruction here would run counter to defendant's theory of the case. The record reveals defendant's strategy to persuade the jury that he did not make offensive contact with Officer Rowe. In State v. Vasquez, 265 N.J. Super. 528 (App. Div. 1993), we held a trial court's failure to charge self-defense was not plain error where the charge was not requested and would have been prejudicial to the defendant's strategy of the case. Id. at 552. "Defendant never claimed that he had to use force," and thus "no plain error resulted from the judge's failure to charge imperfect self-defense." Ibid. Consistent with Vasquez, we find no plain error on these facts.

C. The Domestic Violence Restraining Order
A trial court's evidentiary rulings are entitled to deference absent a showing of an abuse of discretion. State v. Singh, 245 N.J. 1, 12 (2021)

(quoting State v. Nantambu, 221 N.J. 390, 402 (2015)). Under this standard, a trial court's decision to admit evidence should not be overturned "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted." State v. Lykes, 192 N.J. 519, 534 (2007) (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)).

     

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After the trial court permitted, over defendant's objections, Evans' testimony about the conditions in her restraining order, it gave a limiting instruction to the jury:

You heard some testimony about the existence of the restraining order here and you also heard some testimony about what was or was not contained within the restraining order. You're not to consider the fact that there may have been anything referenced in there about restraining Mr. Graham from anything. Okay? Second of all, you can only consider the restraining order itself as evidence as it may affect the credibility of the witness. So that's the only reason you can consider whether or not there was or was not a restraining order and whether it had any effect on her credibility. You're not to consider the fact that there may have been anything referenced in there about restraining Mr. Graham from anything.

As to the State bringing up the order during defendant's cross- examination, the State argues it was defendant who first raised the restraining order, thus opening the door and undercutting his argument on appeal. In turn, defendant says his case was "irreparably harmed" when the trial court permitted the State to cross-examine both he and Evans about the restraining order.

State v. Vallejo, 198 N.J. 122 (2009) provides a proper framework for reviewing the potential prejudicial impact of domestic violence restraining order testimony on a criminal trial. We first address whether the restraining

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order testimony was properly before the jury during the testimony of either Evans or defendant.

The first category of challenged evidence is Evans' restraining order testimony. The State argues that its cross-examination of Evans regarding conditions of the restraining order was permissible to show her motivation in testifying at trial for the defense, citing N.J.R.E. 607 in support.

The record reveals the State was inartful in its execution of this strategy by posing questions to Evans premised on its mistaken understanding of the conditions of the restraining order. When Evans testified correctly that she was not barred from seeing her children, the State pursued follow-up questions about the restraining order during cross.

The trial court, misled by the State's confusion about the order's contents, overruled repeated defense objections. It was only after Evans left the witness stand that the State conceded it had misread the restraining order. There was no condition barring Evans from seeing her children, hence there was no factual or legal basis for the State to pose follow-up questions on cross, nor was there any basis for the court to overrule defendant's objections on impeachment grounds.

"Although extrinsic evidence may be admitted to impeach a witness, under N.J.R.E. 607, its probative value as impeachment evidence must be

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assessed independently of its potential value as substantive evidence." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 494 (1999). "Irrelevant evidence which might improperly affect a witness' credibility may not be admitted into evidence." State v. Hutchins, 241 N.J. Super. 353, 361 (App. Div. 1990).

If the facts had been as the State mistakenly believed them to be, very limited questioning of Evans would arguably have been appropriate regarding the existence of an order that prevented her from seeing children; however, if permitted, that line of questioning should have been sanitized to refer to a court order, not a domestic violence restraining order. See State v. Hamilton, 193 N.J. 255, 265-66 (2008) (holding that the trial court should have exercised its discretion to sanitize evidence to avoid prejudicing defendant). To make matters worse, the colloquy regarding the restraining order generated a curative instruction from the trial court which negatively impacted defendant's ability to have a fair trial.

The second category of challenged evidence is defendant's testimony about the restraining order elicited during his cross-examination. Defendant argues that he was compelled to answer the State's questions about an unrelated domestic violence incident which biased the jury and denied him a fair trial. We agree. The domestic violence restraining order defendant sought and obtained as a victim was unrelated to the charges for which he was on

   

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trial. The restraining order references during defendant's cross had no relevance to the criminal trial, and "had a real potential to prejudice defendant." Vallejo, 198 N.J. at 134. This irrelevant and inadmissible evidence seeped into the trial. Ibid. The prejudicial impact on the defendant was real and unmistakable.

We now "turn to the efforts of the [trial court] to neutralize the negative effects of what transpired." Ibid. Generally, for a curative instruction to pass muster in such circumstances, the instruction given to a jury must be firm, clear, and accomplished without delay. Ibid. (citations omitted). Our Supreme Court has "stressed the importance of immediacy and specificity when trial judges provide curative instructions to alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into a trial." Vallejo, 198 N.J. at 135 (citing State v. Wakefield, 190 N.J. 397, 440, 452 (2007)).

The trial court's first curative instruction, given during Evans' testimony, raises concerns. The trial court sent the jury out and heard argument about Evans' restraining order testimony. It was at this juncture the State first conceded it misread the order and that Evans' recollection of the order's contents was correct. The court brought the jury back and gave conflicting curative instructions. First, it instructed the jury "not to consider the fact that there may have been anything referenced in [the order] about restraining Mr.

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Graham from anything." This unclear instruction left the jury to speculate that there may have been some restraint against defendant. Counsel and the court had just completed their lengthy sidebar. They knew unequivocally there was no such restraint. The court's second instruction, given at the same time, was as follows: "[y]ou're not to consider the fact that there may have been anything referenced in [the order] about restraining Mr. Graham from anything." Again, this curative instruction is not clear. Once more, the jury was left to speculate about the contents of the restraining order.

We conclude Evans' restraining order testimony was permissible if properly sanitized; however, its corresponding curative instruction tainted the jury in advance of the prejudicial restraining order exchange between the State and defendant.

We now review the trial court's curative instructions given to the jury after the State's prejudicial cross-examination of defendant. In this instance, the instructions do not meet the Vallejo standard. They were not firm or clear. Even at this trial stage the court remained equivocal as to the existence of a restraining order against defendant when the record was clear there was none. Importantly, the jury was already tainted by the Evans curative instruction. The mere mention of the restraining order during defendant's testimony compounded the harm. By the time the court finally instructed the jury that it

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was effectively striking any restraining order testimony, the damage had been done.

We conclude the trial court's failure to sustain the relevance objection during the State's cross-examination of defendant was a mistaken exercise of discretion which permitted inadmissible testimony before the jury and thereby prejudiced defendant. The instructions fell short of the Vallejo standard in that they were not firm, clear, or timely. This prejudice was actual, not potential, and the limiting instructions were not sufficient. Cf. State v. Rose, 206 N.J. 141, 166 (2011). Defendant was charged with a crime of violence. The State alleged that he had assaulted a police officer. The State introduced into evidence, through the testimony of two defense witnesses, a domestic violence restraining order. The jury received multiple curative instructions from the trial court from which they may have concluded that defendant had a propensity for violent conduct. On this record, the mere mention of the restraining order during defendant's testimony resulted in a manifest denial of justice. Lykes, 192 N.J. at 534 (quoting Verdicchio, 179 N.J. at 34 (2004)). The error here is not harmless. State v. Gillispie, 208 N.J. 59, 93 (2011).

Based upon our finding that harmful error occurred in this case, we vacate defendant's conviction and remand for a new trial. Given our decision to vacate defendant's conviction and order a new trial, we need not address

    

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defendant's excessive sentence contentions. Furthermore, any argument not addressed here lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Reversed and remanded for a new trial as to both counts. We do not retain jurisdiction.

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Elements of resisting arrest established here STATE v. JAQUA CARMON

Elements of resisting arrest established here STATE   v. JAQUA CARMON, Defendant-Appellant. _______________________ Submitted March 10, 2021 – Decided June 4, 2021  SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0351-19Before Judges Sumners and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 18-09-2939. Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM 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. 2 A-0351-19 Being tried before a jury, defendant Jaqua Carmon made a Reyes1 motion to dismiss the charge of fourth-degree resisting arrest by flight, N.J.S.A. 2C:29- 2(a)(2), at the conclusion of the State's case. 2 Trial judge Mayra V. Tarantino denied the motion. Defendant was subsequently acquitted of second-degree unlawful possession of a handgun but was found guilty of resisting arrest by flight. He was sentenced to a time-served sentence of 297 days and one year of probation. Defendant appeals his conviction, arguing his acquittal motion should have been granted because the State failed to prove he was aware that the two men who chased him were plain-clothes police detectives; thus, he did not have the mens rea to commit resisting arrest by flight. He also challenges his oneyear probationary sentence, arguing the judge erred in balancing the lone aggravating factor considered with the six applied mitigating factors. We are unpersuaded by defendant's arguments and affirm. 1 State v. Reyes, 50 N.J. 454 (1967). 2 Defendant's motion also sought to dismiss the charge of unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). That request was also denied. 3 A-0351-19 I. A defendant may move for judgment of acquittal under Rule 3:18-1 if the State has not proven each element of the crime. The motion may be granted if, viewing all the "direct or circumstantial" evidence in the light most favorable to the State, "as well as all of the favorable inferences which reasonably could be drawn therefrom," no "reasonable jury could find guilt of the charge beyond a reasonable doubt." Reyes, 50 N.J. at 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961)). The Reyes standard applies to appellate review of the sufficiency of evidence. See State v. Kittrell, 145 N.J. 112, 130 (1996). "In deciding whether the trial court was correct in denying [a Reyes] motion, we . . . take into account only the evidence on the State's case, unaided by what defendant later developed at trial." State v. Lemken, 136 N.J. Super. 310, 314 (App. Div. 1974). In order to be found guilty of the fourth-degree flight charge, defendant must have "by flight, purposely prevent[ed] or attempt[ed] to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(2). "[A] citizen's duty to submit obtains when the restraint by the police officer is for any lawful purpose even if it does not amount to an arrest." State v. Brennan, 344 N.J. Super. 136, 145 (App. Div. 2001) (citations omitted). "Flight from the 4 A-0351-19 scene of a crime, depending on the circumstances, may be evidential of consciousness of guilt, provided the flight pertains to the crime charged." State v. Randolph, 228 N.J. 566, 594 (2017) (citations omitted). The circumstances of flight must "'reasonably justify an inference that it was done with a consciousness of guilt' to avoid apprehension on the charged offense." Id. at 594-95 (quoting State v. Ingram, 196 N.J. 23, 46 (2008)). A. The State presented the following evidence. Essex County Sheriff's Office Detective Anthony Piccinno testified that he was conducting surveillance while working with multiple law enforcement officers to stop midlevel street narcotics sales in the city of Newark, when he suspected defendant, Jarrod Nelson, and his co-defendants David Battle, and Quamir Williams were involved in a narcotics transaction. 3 Battle, the suspected purchaser, was arrested as he drove away from the scene. Piccinno testified that although his fellow officers were in undercover attire, all of them had their badges displayed when they moved towards and chased defendant and ultimately arrested him. 3 Co-defendants were not tried with defendant. 5 A-0351-19 Essex County Sheriff's Officer Dominic Petrucci, also part of the investigation, did not arrest Battle but testified that Piccinno radioed him concerning the transaction between Battle, who drove away, and defendant, Nelson, and Williams. Petrucci testified he was wearing undercover attire but was displaying his badge around his neck and identified himself as a police officer when he got out of an unmarked police vehicle to approach defendant, Nelson, and Williams. They "walked away" and ignored his demands "to stop." Defendant began to "pick up [his] pace[]" and eventually ran away, according to Petrucci. While following them, Petrucci saw Nelson discard items into a trash can and defendant discard what appeared to be a handgun in the same trash can. Petrucci stopped to secure the discarded items, leaving other detectives to continue pursuit of them. Essex County Sheriff's Office Detective Eric Udvarhely testified that he was also in undercover attire with his badge displayed when he and his partner, Anthony Dock, pursued defendant, Nelson, and Williams after Battle was arrested. After going down an alley, Udvarhely doubled back to the street, where he saw defendant "running." He chased defendant, identifying himself as police with his badge displayed, yelling at defendant to "stop." Udvarhely stated defendant was ultimately apprehended and arrested moments later. 6 A-0351-19 Trial judge Mayra V. Tarantino denied defendant's motion for acquittal. She determined "defendant knew or had reason to know that . . . [Petrucci] and . . . [Udvarhely] were effectuating an arrest[]" for "an alleged drug transaction." She noted they "testified that they, . . . were wearing plain clothes[,] their badges were clearly displayed, and they identified themselves as police officers. They testified [that they said] police officer, stop, and [defendant] did not in fact stop." Because defendant "increased the pace at which [he fled], in order to avoid the police[,]" the judge ruled "that a reasonable [j]ury could find [defendant] guilty of the charge of [r]esisting [a]rrest [by flight] beyond a reasonable doubt." B. None of defendant's arguments convince us that Judge Tarantino erred in denying his motion for acquittal. Defendant's primary argument is that the officers were in plain clothes and purportedly displaying their police badges, but the State provided no evidence that he heard them announce they were the police or that he would have seen their police badges, since he was moving away from them. He maintains the State failed to show he had knowledge that the officers were attempting to "effect [an] arrest." State v. Parsons, 270 N.J. Super. 213, 222 (App. Div. 1994). He compares himself to the defendant in State v. Tucker, 7 A-0351-19 136 N.J. 158, 161-73 (1994), where his conviction for third-degree possession of narcotics with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), was reversed because the police had no articulable suspicion of criminal activity before chasing him after he spontaneously ran away upon seeing a marked police vehicle and discarded crack cocaine. Defendant asserts that the officers, principally Petrucci and Udvarhely, followed him without knowing that he had committed an offense until he discarded what appeared to be a gun – the charge for which he was acquitted. He also stresses the fact that Udvarhely testified that people sometimes run from police in the neighborhood. Giving all reasonable inferences to the State's evidence, all the elements of fourth-degree resisting arrest by flight were satisfied. Piccinno testified he suspected defendant was involved in a narcotics deal, which prompted him, as the "spotter," to alert the team of police officers who arrested Battle and pursued defendant and the two other co-defendants, before eventually arresting defendant. Piccinno, Petrucci, and Udvarhely all testified that though they wore plain clothes, they displayed their police badges and identified themselves as police. Petrucci and Udvarhely testified defendant continue to run after they ordered him to stop. 8 A-0351-19 Defendant's reliance on Tucker is misplaced. The central issue in Tucker was whether the police had a right to seize defendant under the Fourth Amendment. Id. at 161. The defendant was sitting on a curb when the police drove by, upon which point he ran, and the police chased him without any belief he had engaged in any criminal activity. Id. at 161, 173. There was "no evidence . . . that the police commanded defendant to halt . . . ." Id. at 166. Here, the issue was whether there was sufficient evidence that defendant resisted arrest by flight. Unlike in Tucker, the police here had an articulable suspicion that defendant was involved in a drug transaction, and after announcing themselves as police, with displayed police badges, they directed him to stop. Defendant, however, refused to heed the demands, and fled. Defendant's motion for acquittal was properly denied. Judge Tarantino did not err. II. In sentencing defendant, Judge Tarantino considered aggravating factor nine, need for specific and general deterrence. N.J.S.A. 2C:44-1(a)(9). The judge additionally considered six mitigating factors: one, conduct neither caused nor threatened harm; two, not contemplate conduct would cause harm; eight, conduct was result of circumstances unlikely to recur; nine, unlikely to commit 9 A-0351-19 another offense; ten, likely to respond affirmatively to probation; and eleven, imprisonment would cause serious hardship. N.J.S.A. 2C:44-1(b)(1), (2), (8), (9), (10), and (11). She determined that "the mitigating factors preponderate over the lone aggravating factor." In placing defendant on one-year probation, the judge stated that if he were to perform well for six months, he would be permitted to make an application to have his probation terminated for good behavior. Defendant argues the judge's sentencing decision "is a highly unusual assessment of the aggravating and mitigating factors." He maintains the judge erred in finding that aggravating factor nine was enough to warrant a one-year probationary term, and that community service would have been sufficient to deter. We discern no basis to overturn defendant's probationary sentence. We do not substitute our judgment with the judge's, see State v. Fuentes, 217 N.J. 57, 70 (2014) (citation omitted), and she did not abuse her discretion in sentencing defendant, see State v. Pierce, 188 N.J. 155, 166 (2006). The judge's weighing of the aggravating and mitigating factors was based upon competent and credible evidence in the record, and the sentence does not shock our judicial conscience. See State v. Bolvito, 217 N.J. 221, 228 (2014). 10 A-0351-19 Affirmed. 

Driver suspended for out of state DWI DIGIOIA v. NEW JERSEY MOTOR VEHICLE COMMISSION,

 Driver suspended for out of state DWI

  DIGIOIA v.

NEW JERSEY MOTOR VEHICLE COMMISSION,

Respondent-Respondent. __________________________

Submitted March 16, 2021 – Decided March 30, 2021 Before Judges Haas and Natali.

On appeal from the New Jersey Motor Vehicle Commission.

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-3587-19

Appellant Christopher DiGioia appeals from a final determination of the New Jersey Motor Vehicle Commission (Commission) that denied his request for an administrative hearing and upheld the two-year suspension of his driving privileges. We affirm.

On March 2, 2017, appellant was convicted in New Jersey of driving under the influence of alcohol contrary to N.J.S.A. 39:4-50. He was similarly convicted on October 9, 2019 in New York, which the New York authorities characterized as a first-time offense. New York notified New Jersey of appellant's conviction consistent with the Interstate Driver License Compact, N.J.S.A. 39:5D-1 to -14 (Compact).

The Commission issued a scheduled suspension notice to appellant indicating its intention to suspend his driving privileges for two years under N.J.S.A. 39:5D-4, N.J.S.A. 39:5-30, and N.J.A.C. 13:19-11.1. Appellant requested a hearing to challenge the proposed suspension, and relying on State v. Davis, 95 N.J. Super. 19 (Law Div. 1967), contended that N.J.S.A. 39:4-50 does not expressly permit the Commission to consider an out-of-state conviction as a predicate act for enhanced penalties. He also argued that it was improper to consider his New York conviction as a second offense when determining the

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extent of his suspension, as New York convicted him as a first-time offender, which New Jersey was obligated to recognize under the Compact.

The Commission rejected appellant's arguments, and, in a May 4, 2020, Final Agency Decision issued an Order of Suspension. In that decision, the Commission's Chief Administrator first denied appellant's request for a hearing as there were no disputed facts regarding his New York conviction. Instead, the Chief Administrator explained that appellant sought only consideration of the specific "mitigating circumstance[]" that the Commission consider him a first- time offender consistent with New York's characterization of his offense. The Chief Administrator disagreed and explained that under the Compact, N.J.S.A. 39:5D-4, and N.J.A.C. 13:19-11.1, out of state convictions are considered as if the offenses occurred in New Jersey and accordingly suspended appellant's driving privileges for two years. This appeal followed.

Appellant raises the following single point for our review, which incorporates and reprises the same arguments he raised before the Commission:

THE [COMMISSION'S] CONCLUSION THA T [APPELLANT'S] LICENSE MUST BE SUSPENDED FOR 730 DAYS IS UNREASONABLE AND NOT LEGALLY GROUNDED IN LIGHT OF ALL THE EVIDENCE UPON WHICH IT IS FOUNDED.

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We have carefully considered appellant's contentions and conclude that they are clearly without merit. R. 2:11-3(e)(2). We provide the following comments to amplify our decision.

Our scope of review of an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). "[A]n appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008); Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). We also must determine "whether in applying legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." In re Hermann, 192 N.J. 19, 28 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).

The Compact provides for cooperation among states in reporting driving offenses and disciplining licensees. The underlying policy of the Compact, "is to encourage the reciprocal recognition of motor vehicle violations that occurred in other jurisdictions, thereby increasing the probability that safety on highways

     

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would improve overall." State v. Colley, 397 N.J. Super. 214, 219 (App. Div. 2007).

When the Commission receives a report of a licensee's conviction for "[d]riving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug," the statute mandates the agency "shall give the same effect to the conduct reported, . . . as it would if such conduct had occurred in the home State," and contemplates the agency may impose either the penalty of New Jersey or the penalty required by the state of conviction. N.J.S.A. 39:5D-4(a)(2); see also N.J. Div. of Motor Vehicles v. Egan, 103 N.J. 350, 355-56 (1986) (under both N.J.S.A. 39:5-30.1 and N.J.S.A. 39:5D-4, the Commission may impose either the penalty of New Jersey or that of the state where the offense occurred).

First, we agree with the Commission that appellant presented no disputed issues of material fact requiring a hearing. N.J.A.C. 13:19-1.2(d). Moreover, he provided no legal basis to set aside the Commission's decision to impose a suspension of his driving privileges, authorized by N.J.S.A. 39:5D-4 and N.J.S.A. 39:4-50, and supported by the undisputed evidence in the record. Failure to do so obviated the need for an evidentiary hearing. N.J.A.C. 13:19- 1.2(e); Frank v. Ivy Club, 120 N.J. 73, 98 (1990).

   

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Second, the Commission's decision to impose a two-year suspension as a result of appellant's multiple convictions for driving under the influence of alcohol was neither arbitrary nor capricious. Indeed, it is undisputed that appellant's conduct in New York in operating a motor vehicle while impaired is a similar offense under New Jersey's driving under the influence statute, N.J.S.A. 39:4-50(a), just as it was in New York. See also N.J.A.C. 13:19- 11.1(a). In such circumstances, defendant's suspension is explicitly authorized by N.J.S.A. 39:5D-4(a)(2) which provides that a conviction for operating a motor vehicle while under the influence of alcohol is to be given the same effect as "if such conduct had occurred in the home state". See also N.J. Div. of Motor Vehicles v. Pepe, 379 N.J. Super. 411, 419 (App. Div. 2005) (A New Jersey licensed driver who drives while impaired in a Compact party state violates the sovereignty of New Jersey). Thus, appellant's mandatory suspension was fully supported by applicable law and enforces and effectuates strong public policy set forth by the Legislature.

We reject appellant's reliance on Davis. There, defendant was convicted of violating N.J.S.A 39:4-50 in New Jersey and was convicted of a similar offense in Pennsylvania four years earlier. Davis, 95 N.J. Super. at 20. Defendant argued that as he had no previous offenses in New Jersey he should

     

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be considered a first-time offender. Ibid. The court agreed and reasoned that N.J.S.A. 39:4-50 did not expressly state that a "previous violation may be one committed outside this State, or that a subsequent violation in this State may be predicated on a prior conviction in another jurisdiction." Id. at 23 (quotations omitted). The court therefore held that a "conviction under the laws of another State can have no effect by way of penalty beyond the limits of the State in which the judgment is rendered." Id. at 23-24 (citations omitted).

The reasoning of the Davis court was rejected in State v. Regan, 209 N.J. Super. 596 (App. Div. 1986). In Regan, defendant maintained his prior New York conviction for driving under the influence should not be considered as a predicate offense for purposes of treating him as a third-time offender as he had only one conviction for the same offense in New Jersey. 209 N.J. Super. at 598- 99.

The court rejected defendant's arguments and stated that defendant's out of state conviction was properly considered a prior offense for both criminal sentencing and administrative penalties. Id. at 604. The court held that the Commission clearly had the authority to suspend defendant's driving privileges in light of his New York conviction and it would be "illogical to consider defendant as a subsequent offender for administrative purposes only." Ibid.; see

  

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also State v. Luzhak, 445 N.J. Super. 241, 244 (App. Div. 2016) ("enhanced penalties pursuant to N.J.S.A. 39:4-50 or N.J.S.A. 39:3-40 may be triggered by a DWI conviction from another state."); State v. Cromwell, 194 N.J. Super. 519, 522-23 (App. Div. 1984) (expressly rejecting Davis and concluding that "defendant was subjected to the mandatory license suspension of N.J.S.A. 39:4- 50 following his New York drunk driving conviction").

Additionally, in 1997, the Legislature amended N.J.S.A. 39:4-50(a)(3) to provide that a conviction of a similar driving under the influence charge in another jurisdiction is considered a prior conviction, even with respect to those states who do not participate in the Compact. N.J.S.A. 39:4-50(a)(3) provides:

A conviction of a violation of law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the [Compact] . . . shall constitute a prior conviction . . . unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.

Finally, we reject appellant's claim that because New York considered him a first-time offender, New Jersey was bound to accept that characterization when assessing his license suspension. The Compact simply requires that New Jersey consider appellant's New York conviction as if the offense occurred in New Jersey, which the Commission indisputably did. Nothing in the language of the

  

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Compact required the Commission to ignore defendant's 2017 New Jersey conviction.

In sum, the Commission appropriately considered defendant's New York driving conviction and its resulting imposition of a two-year driving suspension was not an abuse of discretion.

Affirmed.

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Municipal Courts -- Time Payment Plans and Payment Alternatives April 30, 2021

 

Municipal Courts -- Time Payment Plans and Payment Alternatives 

April 30, 2021 

As approved by the Supreme Court, this directive provides an overview and update of policies regarding time payment plans – plans that allow a defendant to make monthly payments towards a legal financial obligation – and payment alternatives in the municipal courts. The goals are to provide greater statewide consistency and efficiency and ensure that time payment plans and alternatives are widely available to defendants when needed and appropriate. 

At the time of a guilty plea or verdict in the municipal courts, legal financial obligations – fines, fees, restitution, and surcharges – are expected to be paid in full upon sentencing. However, there are a variety of options available to certain qualifying municipal defendants that allow for a relaxation of this requirement. Those options are broadly grouped into two general categories: time payment plans and payment alternatives. 

Historically, defendants were afforded time payment plans in the municipal courts only after first demonstrating either indigency or a logistical inability to access funds at the time of sentencing.1 Both situations required that the defendant complete 

1 These were required by Administrative Directive #02-10, “Implementation of L. 2009, c. 317, Authorizing Municipal Courts to Provide Payment Alternatives” (March 2, 2010) and Memorandum 

the Financial Questionnaire to Establish Indigency (“financial questionnaire”) and discuss the contents of the completed form in open court. This directive supersedes those prior procedures and policy documents. 

These changes will provide greater convenience to court users, standardize policies statewide, and limit the open court discussion of defendant’s finances to only when necessary, which will preserve valuable court session time. Changes include the following: 

• -  Time payments are to be made broadly available to defendants upon request without a detailed inquiry into a defendant’s finances. 
• -  This includes both delayed payments (formerly known as a “short-term time payment plan”) and time payment plans that fall within the structured guidance provided below. This structured guidance is particularly relevant to legal financial obligations totaling less than $500, which constitute close to 90% of time payment plans. 
• -  Only those defendants who need more individualized time payment plans, due to indigency or otherwise, will be required to complete a financial questionnaire for court review. 
• -  Courts and defendants will be guided through this process by way of a post- sentencing colloquy promulgated under separate cover by the Administrative Director.
  The details of these new processes are discussed below.
  I. Time Payment Plans (Available at Sentencing)
  Time payment plans give defendants the opportunity to make monthly payments towards a legal financial obligation over a period of time. They are available to defendants unable to pay a fine in full at a court session for a variety of reasons, including indigency. N.J.S.A. 2B:12-23.1a.
  To determine whether a time payment plan is appropriate for a defendant, the municipal court judge should engage in a discussion with the defendant, using the post-sentencing colloquy, to establish the appropriate option: to pay in full at the time of sentencing; to pay within 30 days (a delayed payment); payment in accordance with the structured guidance provided below; or an individualized time payment plan. Only
  from Glenn A. Grant, J.A.D., Completion of the Financial Questionnaire to Establish Indigency Form when Authorizing Time Payments, to Municipal Court Judges, Municipal Court Directors and Administrators (May 9, 2011). 

 

Directive # 12-21 April 30, 2021 Page 3 

the latter, the individualized plan, will require completion of the financial questionnaire. This means fewer defendants will have to complete financial questionnaires. 

Therefore, as an initial matter, and as guided by the post-sentencing colloquy, courts should continue to liberally authorize delayed payments when a defendant indicates that they do not have the ability to pay that day but can make full payment within 30 days. 

For defendants who indicate that more than 30 days is needed to make payment, judges should continue through the colloquy to determine whether a plan that falls within the structured guidance provided below would be appropriate, and what the specifics of that plan should be. 

Range of Financial Obligation

$0 to $100 $100.01 to $200 $200.01 to $300 $300.01 to $400 $400.01 to $500 Greater than $500 

Monthly Installments 

3 equal payments
Up to 6 equal payments
Up to 9 equal payments
Up to 12 equal payments
Up to 15 equal payments
Up to 20 equal payments, whenever possible 

Defendants who indicate that they are unable to satisfy either of the above but still desire a time payment plan must complete the Financial Questionnaire to Establish Indigency, if they have not already done so. This, along with a discussion with the defendant, where necessary, will provide the municipal court judge with adequate information to set an appropriate time payment plan that takes into careful consideration the defendant’s ability to pay. There are no restrictions as to the length of time for payment or the minimum dollar amount of monthly payments. 

For all time payment plans, efforts should be made to place defendants on a balanced payment plan that can be satisfied with minimal court involvement. Judges should remain guided by the maxim to provide payment plans that are reasonable and achievable under the circumstances presented by the defendant, particularly when working with indigent defendants. This must be balanced with courts giving due consideration to establishing a payment plan that ensures satisfaction of an outstanding legal financial obligation while also minimizing defendant involvement with the court. Unnecessarily extending time payments may only set the defendant up to default. Courts should work to strike a careful balance. 

 

Directive # 12-21 April 30, 2021 Page 4 

Finally, defendants should always be advised that in the event they become unable to satisfy their time payment plan, they should immediately contact the court. Judges should stress with the defendant that the court’s role is to work with defendants when issues arise, not to punish those who default. Judges are further reminded that a failure to pay should not trigger issuance of a warrant. Defendants who fail to satisfy their financial obligation are to be scheduled for court, where the judge is to speak with the defendant about their obligation and, as appropriate, commence an ability to pay hearing. 

II. Payment Alternatives (Available After Default) 

Payment alternatives are available after sentencing where a defendant defaults on a time payment plan and does not have the ability to pay. For purposes of these alternatives, a default occurs if a failure to pay notice was issued to the defendant. Please note that this definition has been modified from the prior standard promulgated by this office. Previously, a defendant was considered to be in default only if their driver’s license was suspended for a failure to pay or if a warrant had been issued for defendant’s arrest after a failure to pay. 

The ability to pay determination should be informed by the court’s review of the defendant’s completed Financial Questionnaire to Establish Indigency, and, where necessary, a discussion with the defendant in open court. Judges may use a previously completed questionnaire. However, if the defendant did not complete the questionnaire previously, or if the defendant has indicated that their financial status has changed, the defendant should be asked to complete a new form. It is always within the judge’s discretion to determine whether a new questionnaire must be completed. The ability to pay analysis is captured in the Bench Card – Lawful Collections of Legal Financial Obligations. 

If a person defaults on any payment and the court finds that the defendant does not have the ability to pay, the court may: 

• (1)  reduce the penalty, suspend the penalty, or modify the installment plan; 
• (2)  order that credit be given against the amount owed for each day of confinement, if the court finds that the person has served jail time for the default; 
• (3)  revoke any unpaid portion of the penalty, if the court finds that the circumstances that warranted the imposition have changed or that it would be unjust to require payment; 

 

Directive # 12-21 April 30, 2021 Page 5 

• (4)  order the person to perform community service in lieu of payment of the penalty; 
• (5)  impose any other alternative permitted by law in lieu of payment of the penalty; or 
• (6)  order community service in lieu of incarceration or other modification of the sentence with the person’s consent. 

[N.J.S.A. 2B:12-23; N.J.S.A. 2B:12-23.1.] 

These payment alternatives may not be used to reduce, revoke, or suspend payment of restitution or of the $250 surcharge assessed for operating a vehicle in an unsafe manner under N.J.S.A. 39:4-97.2(f). N.J.S.A. 2B:12-23.1. Moreover, when engaging in a colloquy with a defendant regarding payment alternatives, judges should take into consideration the possibility that certain options, such as community service, may be more onerous than a monetary obligation. 

In determining whether a payment alternative is appropriate, judges should consider the financial circumstances of the defendant, the defendant’s practical ability to pay an assessed amount, and how to meet the interests of justice. The judge must place on the record the basis for modifying or vacating any financial penalties, and all changes of sentence must be made on the record in open court. R. 1:7-4(a), R. 7:9-4. 

Finally, judges are strongly urged to use their statutory authority when appropriate to revoke all or a portion of a penalty if continuing payment of even a modest amount would cause a hardship to the defendant or the circumstances warranting the imposition of the sentence have changed, and it is in the interest of justice to do so. 

III. Modification of Payment Plans and Payment Alternatives 

Courts should work liberally with defendants who provide justification to modify their time payment plan, seek a payment alternative, or seek to modify their payment alternative to ensure that they are reasonable, achievable, and meet the needs of the defendant and the interests of justice. Additionally, pursuant to guidance and approval from their municipal court judge, authorized municipal court administrators may modify time payment plans for the convenience of defendants without the need to schedule a court event. 

Supreme Court rules against warrantless seizure of guns while man is in hospital for suicide evaluation CANIGLIA v. STROM

 Supreme Court rules against warrantless seizure of guns while man is in hospital for suicide evaluation

CANIGLIA v. STROM  

No. 20–157 Decided May 17, 2021 

               During an argument with his wife, petitioner Edward Caniglia placed a handgun on the dining room table and asked his wife to “shoot [him] and get it over with.” His wife instead left the home and spent the night at a hotel. The next morning, she was unable to reach her husband by phone, so she called the police to request a welfare check. The responding officers accompanied Caniglia’s wife to the home, where they encountered Caniglia on the porch. 

               The officers called an ambulance based on the belief that Caniglia posed a risk to himself or others. Caniglia agreed to go to the hospital for a psychiatric evaluation on the condition that the officers not confiscate his firearms. But once Caniglia left, the officers located and seized his weapons. Caniglia sued, claiming that the officers had entered his home and seized him and his firearms without a warrant in violation of the Fourth Amendment. The District Court granted summary judgment to the officers. The First Circuit affirmed, extrapolating from the Court’s decision in Cady v. Dombrowski, 413 U. S. 433, a theory that the officers’ removal of Caniglia and his firearms from his home was justified by a “community caretaking exception” to the warrant requirement. 

               Held: Neither the holding nor logic of Cady justifies such warrantless searches and seizures in the home. Cady held that a warrantless search of an impounded vehicle for an unsecured firearm did not vio- late the Fourth Amendment. In reaching this conclusion, the Court noted that the officers who patrol the “public highways” are often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents. 413 U. S., at 441. But searches of vehicles and homes are constitutionally different, as the Cady opinion repeatedly stressed. Id., at 439, 440– 442. The very core of the Fourth Amendment’s guarantee is the right of a person to retreat into his or her home and “there be free from un- reasonable governmental intrusion.” Florida v. Jardines, 569 U. S. 1, 6. A recognition of the existence of “community caretaking” tasks, like rendering aid to motorists in disabled vehicles, is not an open-ended license to perform them anywhere. 

 

STATE OF NEW JERSEY VS. W.C. (FO-08-0264-20, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0800-20)

 STATE OF NEW JERSEY VS. W.C. (FO-08-0264-20, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0800-20)

Defendant's firearms were seized following entry of a temporary restraining order against him pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The court entered a final restraining order (FRO) following a trial, but later granted defendant's motion for reconsideration, vacated the FRO, and, following a second trial, dismissed the domestic violence complaint because the plaintiff did not sustain her burden of proving an entitlement to an FRO.

Following entry of the FRO, the State moved for forfeiture of defendant's weapons under the PDVA. Notwithstanding the subsequent dismissal of the FRO, the State argued it was entitled to forfeiture under N.J.S.A. 2C:25-21(d)(3) because N.J.S.A. 2C:25-29(b), which requires that domestic violence FROs include a minimum two-year bar on a defendant's possession and ownership of a firearm, resulted in a disability under N.J.S.A. 2C:58-3(c)(6), which prohibits the issuance of a handgun purchase permit or firearms purchaser identification card to a person who is "subject to" a PDVA restraining order prohibiting possession of a firearm. The motion court denied the State's forfeiture application, and the State appealed.

The court affirms the motion court's denial of the forfeiture application. The court holds an FRO that is vacated as improvidently granted in the first instance does not support the otherwise mandatory bar under N.J.S.A. 2C:25-29(b), and therefore does not result in a disability under N.J.S.A. 2C:58-3(c)(6) permitting forfeiture under N.J.S.A. 2C:25-21(d)(3).

J.K. v. New Jersey State Parole Board (084035) (Statewide) (A-76-19; 084035)

 J.K. v. New Jersey State Parole Board (084035) (Statewide) (A-76-19; 084035)

The denial of J.K.’s application was not arbitrary, capricious, or unreasonable. J.K’s submissions to the Parole Board were inadequate to secure the relief sought. To the extent that J.K. has refined and updated his application, his recourse is before the Parole Board, which has the necessary expertise to assess the quality of his new submissions under its Policy # 09.821.

State v. Craig Szemple (A-70-19; 084182)

 State v. Craig Szemple  (A-70-19; 084182)

Because defendant was aware of the letter and the circumstances relevant to this appeal for nearly twenty-five years, yet provides no evidence -- and made almost no effort to uncover evidence -- that police interviewed Theresa after production of the letter, the trial court did not abuse its discretion in denying defendant’s post-conviction discovery request.

State v. Zakariyya Ahmad (083736) (Essex County & Statewide) (A-54-19

 State v. Zakariyya Ahmad (083736) (Essex County & Statewide) (A-54-19 

Pursuant to the facts of this case, a reasonable 17-year-old in defendant’s position would have believed he was in custody and not free to leave, so Miranda warnings were required. It was harmful error to admit his statement at trial.

Remove & Expungement of NJ Criminal Arrests and Convictions- Free Seminar

 July 28, 2021   Remove & Expungement of NJ Criminal Arrests and Convictions- Free Seminar from 12:15-1pm   Location: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817

New  Expungement Law took effect 2020, revised again 2021

    COST: Free if you pre-register. Complimentary materials provided. This program is limited to 15 people. Please bring a canned food donation, which will be given to the St. Matthews Food Bank. Please email us if you plan on attending or if you would like us to email the materials. Attorneys- If space exists you can attend if you want to learn more about expungements.

SPEAKER: Kenneth Vercammen, Esq.

              (Author- Criminal Law Forms by the American Bar Association)

The NJ statute on expungement was revised effective June 15.  Nothing is automatically erased yet. If someone has been arrested or even had a private criminal complaint signed against them in the Municipal Court, they have a criminal record, even if the charges were dismissed or received a Conditional Discharge Under NJ Law past criminal arrests and convictions can be expunged/ erased under certain instances. This program will discuss the expungement process. I served as a Municipal Prosecutor and was amazed how minor criminal guilty pleas and even dismissed charges can affect someone’s ability to get a job or advance a career. Do you have children or someone you know or work with that needs an expungement?

    To attend email VercammenLaw@Njlaws.com

https://www.facebook.com/events/714526569340533

        Can’t attend?  We can email you materials

Send email to VercammenLaw@Njlaws.com

    More info: The Petition for expungement is filed in the Superior Court. It takes a minimum of three months for the court to grant the expungement. The requirements are very formal. There can be a waiting period between 6 months up to 10 years after the criminal case is finished. For someone who had a drug charge, they can hire an attorney apply for Expungement 6 months after the Conditional Discharge is complete. The statute requires detailed notices served by the attorney on the State Police, Attorney General and numerous other government entities.

    Typical Court costs and Legal fees for expungement range from $1,500-$2,500.

https://www.facebook.com/events/2552232138434263/

Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he  handles Criminal, Municipal Court, Probate, Litigation and Estate Administration matters. Ken is author of the American Bar Association's new book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association.  As the Past Chair of  the Municipal Court Section he has served on its board for 10 years.

Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.

Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine.  He was a speaker at the past ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.

For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.

His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings.  Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.

    Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4^th degree black belt.

KENNETH VERCAMMEN

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

STATE OF NEW JERSEY VS. OSCAR RAMIREZ (20-01-0071, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)(A-1298-20)

 STATE OF NEW JERSEY VS. OSCAR RAMIREZ (20-01-0071, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)(A-1298-20)

A grand jury indicted defendant with first degree kidnapping, four counts of first degree aggravated sexual assault, and other related offenses. At the victim's request, the State sought a protective order pursuant to Rule 3:13-3(e)(1) to exclude her home address from the discovery made available to defendant. The trial court ordered the State to disclose the victim's home address to his counsel and investigators.

By leave granted, this court holds that the disclosure of the victim's home address in this case violates the public policy of this State, as reflected in The Victims' Rights Amendment to our State Constitution. N.J. Const., art. I, ¶ 22. This disclosure also violates the Sexual Assault Victim's Bill of Rights, N.J.S.A. 52:4B-60.1 to 60.3, which gives a victim of sexual violence the right "[t]o choose whether to participate in any investigation of the assault[.]" N.J.S.A. 52:4B-60.2(7).