State v. Jessie D. Chambers

10-15-07* A-6180-04T4

Under N.J.S.A. 2C:35-7.1, the crime of possession of a
CDS with the intent to distribute is elevated from a thirddegree
crime to a second-degree crime if the offense is
committed within 500 feet of a public building. In this
opinion, we conclude that a museum qualifies as a public
building even if it does not maintain regular hours and is only
open to the public upon request.(*Approved for Publication date)

State v. Jeffrey Bendix

10-11-07 A-6508-05T3

We concluded that the trial court took too restrictive a
view of the court's discretion, under N.J.S.A. 2C:35-16a, to
grant defendant a hardship exception from the requirement that
his driver's license be suspended due to his conviction for drug
offenses. In remanding for a new hearing on the exception
issue, we provided guidance as to the proper procedures for
conducting the hearing. Defense counsel should present his
client's application through formal witness testimony, and the
State's opposition should likewise be presented through
testimony rather than representations of counsel. (*Approved for
Publication date)

State v. Eric Rowland

10-11-07 A-4383-06T5

The Contractors' Registration Act, N.J.S.A. 56:8-136 to -
152, includes provisions under which knowingly engaging in the
business of making or selling home improvements without having
registered with the Division of Consumer Affairs is a fourth
degree crime. Although the Act states that "a person who
knowingly violates any of the provisions of this act is guilty
of a crime of the fourth degree," the underlined phrase does not
mean that the State must prove defendant knew about the Act and
its provisions. In short, when used in a statute, the
underlined phrase does not make knowledge of the law an element
of the crime.

State v. Kevin Johnson

10-11-07 A-4544-05T4

In this appeal we examine the consequences of a sentencing
court's failure to notify a defendant of his right to appeal
within forty-five days, when the sentence was imposed prior to
the New Jersey Supreme Court's opinion in State v. Molina, 187
N.J. 531 (2006). In Molina, the Court made prospective its
holding that such a defendant had five years from the date of
sentencing to move for leave to appeal as within time.

State v. David L. Moon, a/k/a David L.

10-09-07
This case requires us to consider the elements of
endangering an injured victim, N.J.S.A. 2C:12-1.2b(2). We
conclude that the crime does not apply to a person who abandons
a corpse.

State v. Altariq Laboo

09-28-07 A-3746-06T5

Three individuals committed a string of armed robberies
over the course of a one-hour period, taking items that included
two cell phones. Approximately thirty hours after the last
robbery, police used a tracking device to track one of the
stolen cell phones to a three-family home located in a highcrime
area. Three officers entered the building and used a
handheld tracking device to determine the exact apartment. An
officer knocked on the apartment door and announced that he was
a police officer. The officer then heard a young female yelling
and a man's voice saying "shut up, shut up, 5-0," and scurrying
inside the apartment. Without obtaining a warrant, the officers
forcibly entered the apartment, wherein they found evidence from
the robberies.

We reversed the law division's order suppressing the
evidence. The search was justified because the exigent
circumstances, although police-created, arose as a result of
reasonable investigative conduct. We held that the police were
not required to procure a warrant because a delay presented a
real potential danger to the officers and public, under the
circumstances.

State v. Jason G. Meyer

9-19-07 (A-122-05/A-43-06)

“Special probation” under N.J.S.A. 2C:35-14 is a type of
disposition for certain non-violent drug offenders, but it is
not the exclusive route to admission into Drug Court.
Consistent with the Drug Court Manual and the general sentencing
provisions of the Code of Criminal Justice, N.J.S.A. 2C:45-1, a
trial court has discretion to admit non-violent drug-dependent
offenders into Drug Court.

State v. Wayne DeAngelo

09-13-07 A-4229-05T3

The focus of this appeal is the enforceability of a
municipal ordinance that prevents the display of a large balloon
in the shape of a rat during a labor dispute. We hold that the
ordinance, which does not affect the parties' rights in the
labor dispute, is not preempted by the National Labor Relations
Act (NLRA), 29 U.S.C.A. § 151-69, nor does it abridge any
party's freedom of expression. The ordinance is not void for
vagueness. It is content-neutral and the record does not
support a claim that it was selectively inferred.
Judge Sabatino dissents in part. He perceives a lack of
content neutrality in the ordinance because it allows balloon
grand opening signs.

State v. John L. Nyhammer

09-06-07 A-5672-04T4

We reverse a conviction for aggravated sexual assault on a
girl, then nine years old, concluding that each of two rulings
constituted reversible error. First, the judge should not have
admitted defendant's confession. An investigator called
defendant and explained that he was conducting an investigation
against another man in connection with the abuse of another
child as well as the victim in this case. The investigator did
not indicate to defendant that the victim in this case had made
allegations of abuse by defendants. Defendant went to the
police station. The investigator gave defendant the Miranda
warnings. After defendant gave a formal statement regarding the
incident of abuse by the other man, the investigator told him
that the victim had made accusations against defendant as well.
Defendant became distraught. Miranda warnings were not given a
second time. Defendant confessed. We conclude that defendant
did not make a knowing and voluntary waiver of his right to
remain silent. Therefore, his confession was inadmissible.
Second, we conclude that the victim's hearsay videotape,
which was the sole substantive evidence proving defendant's
conduct, should have been excluded from evidence, pursuant to
the Confrontation Clause. The videotaped statement was
"testimonial," there was no prior opportunity for defendant to
cross-examine the victim, and there was no opportunity for an
adequate and meaningful cross-examination at trial because the
victim was unresponsive to many questions. At trial, she did
not recollect questions going to the heart of the charges.
Therefore, the videotape was the sole substantive evidence at
trial.

State vs. Ahmet S. Kotsev

08-31-07 A-3256-05T5

1. N.J.S.A. 39:4-50 mandates a minimum of ninety consecutive
days incarceration for a third or subsequent conviction for
driving while intoxicated (DWI). Sheriff's Labor Assistance
Programs (SLAP) and weekend service are not substitute
sentencing options for third or subsequent offenders.
2. The 1993 statute mandated a third or subsequent offender to
serve 180 days incarceration "except that the court may lower
such term for each day, not exceeding ninety days, served
performing community service." No other options are available.
3. The 2004 amendment to N.J.S.A. 39:4-50, commonly referred
to as Michael's Law, similarly mandates 180 days incarceration
but allows a reduction of one day for each day, not exceeding
ninety days, in an inpatient rehabilitation program.
In other words, a third or subsequent DWI conviction
requires a defendant to serve a minimum of ninety consecutive
days of incarceration.(*Approved for Publication date)

State v. Jay C. Fisher

08-14-07 A-3026-05T3

Pursuant to N.J.S.A. 2C:11-5.1, a driver involved in a
motor vehicle accident that results in the death of another
person is guilty of a crime if the driver fails to comply with
the requirements of N.J.S.A. 39:4-129. The driver must either
remain at the scene to provide his or her driving credentials to
designated persons or report the accident and his or her
identity to the nearest officer of the local police department,
county police or the State Police. Compliance with those
requirements would preclude prosecution under N.J.S.A. 2C:11-
5.1.

Moreover, compliance with those requirements would not
violate the driver's privilege against self-incrimination. As
the United States Supreme Court recognized in California v.
Byers, disclosure of name and address is essentially a neutral
act and most accidents occur without creating criminal
liability. Under the facts of this case, there was no
reasonable basis for the driver to apprehend prosecution,
inasmuch as the decedent had been crouching or lying near the
middle of the road. If, under different facts, compliance with
the statutory requirements did pose a legitimate risk of selfincrimination,
it might be necessary to accord compliant drivers
use or derivative-use immunity as outlined in State v. Patton.

In the Matter of Expungement Application of G.R.

08-03-07 A-0079-06T1

N.J.S.A. 2C:35-5a(1), criminalizes the knowing or
purposeful possession of a CDS "with intent to manufacture,
distribute or dispense" to another. The statute does not draw a
distinction between distributing or dispensing to another in
exchange for money and a gratuitous transfer of the narcotics.
Either conduct constitutes the crime as defined by N.J.S.A.
2C:35-5a(1). However, for purpose of expungement, it does make
a difference. A sale of CDS is a bar to expungement; but a
transfer for no consideration is not. Therefore, we hold that
the facts must be examined to determine if the underlying
possession of the CDS was with intent to sell, as opposed to
dispense or distribute without a sale.

A judgment of conviction for possession of a CDS "with
intent to dispense or distribute" contrary to N.J.S.A. 2C:35-
5a(1), by itself is not conclusive of intent to sell or intent
to dispense for no consideration. The description of the
offense in the judgment of conviction does not aid the judge in
deciding whether the statutory bar applies in a given situation.
To the extent that State v. P.L., 369 N.J. Super. 291 (App. Div.
2004) makes such a suggestion, we disagree with that opinion.

State v. Ernest Spell

07-31-07 A-4186-05T5

While the record supports the conviction for refusal to
take a breathalyzer test, N.J.S.A. 39:4-50.2, and the conviction
is affirmed, effective October 1, 2007 officers must read the
additional paragraph of the statutorily promulgated statement of
the Motor Vehicle Commission before any refusal conviction can
be sustained.

State v. Michelle L. Elders

7-30-07 (A-42-06)

The “reasonable and articulable suspicion” standard of State v.
Carty, 174 N.J. 351 (2002), which governs consent searches of
cars that are validly stopped applies equally to disabled
vehicles on the State’s roadways. In this case, the Court
concludes that there was sufficient credible evidence in the
record to support the trial judge’s findings that the troopers
engaged in an unconstitutional investigatory detention and
search.

State v. Ronald Burns

7-26-07 (A-27-06)

When faced with the difficult dilemma of handling a recalcitrant
witness who had no valid basis to refuse to testify, the trial
court did not abuse its discretion by allowing the prosecutor to
call a witness who declined to answer specific questions before
the jury. In addition, the trial court properly instructed the
jury not to consider the facts in the questions that the witness
declined to answer, and that any error not objected to in the
charge does not require reversal of defendant’s conviction.

State v. Richard Wilson

07-26-07

State v. Richard Wilson, et al.
A-5618-05T1
-consolidated with-
State v. James Franklin, et al.
A-5622-05T1
-consolidated with-
State v. Regina Charles, et al.
A-5625-05T1

In these appeals by a corporate surety from bail forfeiture
orders, we hold that the bright-line distinction, for purposes
of exoneration or remittance of bail, between non-appearing
defendants found to be in custody out-of-state and in-state has
lost its significance. We thus find State v. Erickson, 154 N.J.
Super. 201 (App. Div. 1977), no longer to be a proper expression
of the law. We remand the matters for further consideration of
whether bail can be exonerated or remitted at the time the
defendant is located in out-of-state custody and a detainer is
lodged, or whether such relief must await the defendant's return
to New Jersey.

We also suggest that it is inequitable for the State, which
has resources for locating defendants that are not available to
recovery agents, to fail to notify the court and the surety when
a defendant has been found in out-of-state custody, since the
absence of such notification may affect the entry of orders of
forfeiture and the costs of recovery expended by the surety.

State v. Alex Banks

07-26-07 A-2983-05T4

Defendant was convicted by a jury and contends that the
trial court erred in removing a deliberating juror and
substituting an alternate after the initial panel declared its
inability to reach a unanimous verdict and the court delivered a
Czachor charge. We conclude that when a question about a
juror's "inability" to proceed arises after the jury has
informed the court that it cannot agree on a verdict, the trial
court should rely on the presumption that the jurors have
deliberated in accordance with the initial charge and any
additional instructions that can be given consistent with
Czachor. If the jurors cannot reach a verdict thereafter, then
mistrial should be granted.

State v. Raul D. Lopez

07-20-07 A-4469-04T4

The mandatory minimum sentence requirement in the last
paragraph of N.J.S.A. 2C:13-1c(2), for certain categories of
kidnapping, twenty-five years without parole, is not amenable to
a sentence downgrade under N.J.S.A. 2C:44-1f(2).

In the Matter of Civil Commitment of J.M.B., SVP-358-04

07-20-07 A-6458-03T2

J.M.B. was civilly committed under the Sexually Violent
Predator Act, N.J.S.A. 30:4-27.24 to -.38. He appealed his
initial commitment, alleging he was wrongfully committed because
none of his convictions were sexually violent offenses as
defined by N.J.S.A. 30:4-27.26. Held that subsection (b) is a
catchall provision permitting the psychiatric experts and the
court to consider the factual circumstances of the offenses in
making the determination of whether the committee committed
sexually violent offenses and was a sexual predator under the
Act.

State v. Tammy Buczkowski

07-18-07 A-4671-05T1

We apply the Supreme Court's dictum in State v. Fisher, 180
N.J. 462, 474 (2004), that N.J.S.A. 39:5-3a requires service of
process within thirty days from the date of the alleged offense
in most instances of charged motor vehicle violations. We,
therefore, affirm the Law Division's dismissal of a charge of
reckless driving, N.J.S.A. 39:4-96, as untimely. We also apply
the doctrine requiring "[t]he government [to] 'turn square
corners' in its dealings with the public."