Last minute evidence by State improper State v P.S.

Last minute evidence by State improper State v P.S.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. P.S.,

Defendant-Appellant.

______________________________________________________

March 26, 2015

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

Before Judges Fisher, Nugent and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-10-1757.

Bastarrika, Soto, Gonzalez & Somohano, attorneys for appellant (Jerard A. Gonzalez,of counsel; Jane M. Personette, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal of his conviction by a jury of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), of G.D. (hereafter Grace, a fictitious name) – which occurred in 2006 when Grace was approximately eleven years old – and one count of third-degree endangering, N.J.S.A. 2C:24-4(a), defendant argues, among other things, that the trial judge erred in admitting the State's photographs – taken the same day the defense rested – of the area in question. Because we agree the judge abused his discretion in permitting this rebuttal evidence – particularly when the rebuttal witness's testimony about the photographs acknowledged numerous changes to the area in the intervening years – we reverse.

The evidence adduced at a trial in 2009¹ revealed that in 1997 Grace's family, consisting of her parents and her twin sister, moved to Ridgewood. Defendant, his wife, and their two sons, resided in the house next door. Grace and one of defendant's sons were of the same approximate age and often played together in defendant's yard because it contained a basketball court, a rope swing, puppies and chickens. At one point, to give the children safer access to and from his yard, defendant cut a hole in his chain link fence that separated his property from Grace's family's yard, eliminating the need for the children to reach his yard by walking along a busy street.

The two families were friendly, and Grace's mother neither observed nor suspected any problem until May 2006, when Grace began suffering from headaches and fatigue.² According to her mother, Grace also exhibited physical symptoms that suggested she was having her first period, and she took Grace for a medical examination during which Grace revealed that defendant had touched her vagina through her clothing.³ Grace appeared uncomfortable discussing this with a male physician, so a female physician spoke with and examined her. Grace provided further detail to the female doctor, who, although finding no objective signs of injury and concluding Grace was probably experiencing her first period, suggested Grace and her mother speak to the police. The investigation that followed led to defendant's indictment.

At trial, although the State called five other witnesses, only Grace provided direct evidence of the alleged crimes.⁴The prosecutor conceded there was a "lack of physical and scientific evidence," and "although there were [others] present in and around the area" when the alleged abuse occurred, the jury would not hear "eyewitness testimony." In short, Grace was the source of the evidence provided by the other witnesses.

Grace testified that defendant first improperly touched her when she was in the third grade, estimating such incidents occurred approximately twenty times over a three-year period either inside defendant's home or in his backyard. Grace acknowledged no one else was present when defendant touched her. She provided specific incidents of abuse that occurred inside defendant's house and others that occurred outside, near a truck, a doghouse and a chicken coop in the yard. Through effective cross-examination, defense counsel revealed a number of inconsistencies in Grace's recollection of these events.

The jury also heard testimony from witnesses called by the defense. A.C., a neighbor, who tended to be home all day, had a kitchen window with a view of defendant's backyard. A.C. testified she had never observed Grace alone with defendant. A.C. also had tenants, one of whom testified she could see part of defendant's backyard from her window; she too testified she had never seen defendant alone in the yard with Grace. Defendant's wife provided similar testimony.

When the defense was about to rest near the end of this nine-day trial, the prosecutor advised the trial judge of his intention to "mount a very . . . narrow one witness rebuttal" to respond to the evidence offered by the defense regarding the configuration and appearance of defendant's backyard. Grace was permitted, over defendant's objection, to resume the witness stand, and she testified about a series of photographs taken that morning by a member of her family. 

Defendant was convicted and, on December 18, 2009, sentenced to an aggregate seven-year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appeals, arguing:

I. THE INTRODUCTION BY THE STATE, DURING THE REBUTTAL PHASE OF TRIAL, OF PHOTOGRAPHS TAKEN ON THE MORNING THE DEFENSE PLANNED TO REST, WERE PREJUDICIAL AND DEPRIVED DEFENDANT OF FAIR TRIAL, THUS WARRANTING THAT DEFENDANT'S CONVICTION BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

II. STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENT CONSTITUTED PROSECUTORIAL MISCONDUCT, PREJUDICED DEFENDANT AND WARRANT REVERSAL OF DEFENDANT'S CONVICTION (Not Raised Below).

We agree with the arguments posited in Point I and, therefore, reverse and remand for a new trial. And, although not necessary to our decision, we briefly comment on Point II.

I

Defendant argues the trial judge abused his discretion in allowing rebuttal in the form of photographs of defendant's backyard and the surrounding area that were admitted through and described by Grace's additional testimony.

In particular, the prosecutor sought to elicit this evidence to respond to testimony about a space in the fence used by Grace to enter defendant's yard:

MR. CALVIELLO: The . . . nine or ten photos of the fence line – the majority of which focus on the actual hole in the fence.

In addition, . . . to the limited testimony regarding the fence – and . . . in the eyes of the child victim who recalled the fence, who utilized that hole in the fence, and who can testify not only about . . . when she realized it was originally cut, then . . . the modest alteration they did to it later on . . . , and then later on when there was . . . the arrest.

And, in fact, [Grace] can give us the three stages and it's depicted in the photos . . . by virtue of the difference in the fence. . . .

But, Judge, there's additional relevance of usefulness of these photographs, which I think the jury will benefit from. For instance, they'll get to see the tree lines and they'll know in the spring and summer, when these trees are in bloom, the very limited view that there is from [Grace's] house of [defendant's] backyard. Again, another subject of very extensive debate, particularly, on the defense side.

In addition, Judge, the doghouse that was testified to. It's still in existence in the defendant's backyard – the size of it – which is fair for consideration – the placement of it now, which has since . . . been moved.

. . . .

[It] [i]s a fairly good photograph of the size of that doghouse and where it is today and where it was at the time of the incident in question.

Although he acknowledged the State's "right to bring in rebuttal evidence," defense counsel objected to this "eleventh hour" evidence, observing the need for any such evidence should have been sooner realized; indeed, as counsel repeatedly pointed out to the trial judge, the case had previously been tried but resulted in a mistrial when the jury could not reach a verdict. He argued that if photographs were truly needed to respond to the defense's theory that the area where some of the alleged incidents occurred was not secluded – and it was not therefore logical or believable that defendant would sexually abuse the child in a clear and open area – the State should have recognized that need long before the last day of testimony in the second trial on this indictment.

In addition, defense counsel argued that because the charged events had "happened three, four, five, maybe six years ago," the idea that the newly-minted photographs would present an accurate picture for the jury of the yard as it appeared many years earlier – particularly, in light of the intervening growth of trees and shrubbery in the area, and the changed location of the dog house and a truck – was preposterous and, therefore, the admission of the photographs would tend to confuse the jury.

Defense counsel urged the prejudicial impact of the prosecutor's last minute offer of this evidence:

MR. STRATIS: We have rules that this [c]ourt lives by. . . . The discovery process is one by which I'm entitled to photographs in advance.

I'd like to see on his exhibit list where he requested or suggested that he's going to bring in photographs. Perhaps, [if he had], I would have gotten a professional photographer to go out.

Maybe he would have sat in [A.C.'s] kitchen and taken photographs from every angle. Maybe I want a picture from [defendant's] backyard. Maybe I want pictures. . . .

I am entitled to these photographs as part of the exhibit list that should have been given to me before trial number one. At a minimum, it should have been given to me before trial number two. It hasn't been done.

[The prosecutor] knows my closing argument is about the lack of physical evidence and he wants to bring in [an] array of photographs to show the jury – or to suggest to them that, yes, I've got photographs.

Defense counsel also asserted the prejudicial nature of the late offer of evidence – "pictures mean a lot to a jury," they are "something they can hold on to . . . [and] see." And he argued prejudice in the timing of the offer because these photographs, which undercut the defense argument about the prosecution's lack of tangible evidence, would be the last thing the jury would see come into evidence.

These were all valid reasons for the exclusion or limitation of the rebuttal testimony, all of which were further amplified by the unusual circumstance – the surprising fact that the State did not sooner photograph the area in order to provide the jury with pictures to go with testimony it had already heard. The issue on appeal has been confounded by the confusing colloquy among the prosecutor, defense counsel and the judge regarding the State's offer and the defendant's concerns. And, despite a lengthy discussion,⁵ the record lacks a clear expression of the judge's reasoning for allowing the rebuttal evidence; indeed, we only know the judge granted the prosecutor's application because Grace was called to the stand and questioned about most of the photographs taken that morning. Our review of the issue, therefore, has been disserved or greatly clouded because the judge failed to explain why he permitted the admission of this evidence.  See Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).

To be sure, the admissibility of rebuttal evidence rests in the trial judge's sound discretion.  State v. Beard, 16 N.J. 50, 59 (1954); see also State v. Sturdivant, 31 N.J. 165, 178 (1959) (recognizing the trial judge is vested with "considerable discretion" in determining whether to permit rebuttal evidence), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed.2d 873 (1960); State v. Menke, 25 N.J. 66, 71 (1957) (observing "the exercise of that discretion will not be interfered with in the absence of mistaken use thereof"). In this case, a proper exercise of that discretion required an examination of three circumstances: the reason for the prosecution's failure to offer the evidence in the State's case-in-chief; the materiality of the evidence; and how defendant was prejudiced, which was described by the Menke Court as "the extent, if any, to which the defendant suffered greater damage than would have been imposed if the evidence had been offered at the proper time."  See Menke, supra, 25 N.J. at 71.⁶

Here, as we have observed, the case was tried on an earlier occasion. The jury could not then agree on a verdict. But, as a consequence, both sides gained a full understanding of the proofs that would be offered; accordingly, there were no surprises presented by defendant's evidence during the second trial. The State should have had a clear understanding of a need for the evidence that it did not offer until seeking the right to present rebuttal evidence. Although the record does not suggest the prosecution deliberately withheld an offer of photographs of the backyard so as to disadvantage defendant, the delay is so inexplicable that it can certainly be said that the prosecution's actions were reckless. The State must have understood that the defense theory included an assertion that whatever might occur in the yard would be visible to a number of potential witnesses in the neighborhood, thereby suggesting the child was not credible in asserting that the abuse occurred in the yard. Accordingly, we agree with defendant that the timing of the offer was highly suspicious.

The prejudice to defendant is also undeniable. Photographs, as the Supreme Court has recognized, possess a "persuasive representational nature."  See Brenman v. Demello, 191 N.J. 18, 30 (2007); see also State v. Moore, 122 N.J. 420, 466 (1991); State v. Smith, 27 N.J. 433, 449 (1958). Moreover, these photographs – presented in dramatic eleventh hour fashion – constituted the last tangible evidence presented to the jury.

And the prejudice was enhanced by the intervening years and the changes to the property's appearance from the time of the alleged events to the date the photographs were taken.⁷ This undisputed circumstance not only presented a potential for confusing the jury's understanding of the testimony about what may or may not have occurred in the yard years earlier, but also constituted a basis for excluding the photographs as improperly authenticated. In this latter regard, the Supreme Court has held that to authenticate a photograph, the proponent must demonstrate that

(1) the photograph is an accurate reproduction of what it purports to represent; and (2) the reproduction is of the scene at the time of the incident in question, or, in the alternative, the scene has not changed between the time of the incident in question and the time of the taking of the photograph.

[State v. Wilson, 135 N.J. 4, 15 (1994); see also State v. Joseph, 426 N.J. Super. 204, 220 (App. Div.), certif. denied, 212 N.J. 462 (2012).]

Although Grace testified the photographs accurately depicted the yard and other fixtures in the yard as they appeared on the date she testified, her direct testimony also demonstrated the many substantial changes to the area that we have already pointed out. The judge made no findings on these questions despite defense counsel's zealous assertions along these lines. Because there was no dispute about the substantial changes to the area between the time of the alleged offenses and the day the photographs were taken, the judge should have sustained defendant's objections.

The fact that the other evidence presented a close case for the jury to decide, the State's dramatic, last-minute and highly suspect presentation of these photographs was clearly capable of producing an unjust result.

II

Although not necessary to our decision in light of the above, in his second point defendant claims his right to a fair trial was prejudiced by the prosecutor's summation, in which he argued that some of defense counsel's arguments were "[b]y and large . . . downright repulsive."⁸ We agree this was an improper comment. As our Supreme Court has held, improper remarks in a summation will not always be deemed prejudicial because in many situations the "[f]ailure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made."  State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.2d 89 (2001).

The prosecutor's role in the criminal justice system is not to seek convictions but to ensure justice is done; the prosecutor must, therefore, refrain from employing improper methods calculated to produce wrongful convictions.  Id.at 587; State v. Rivera, 437 N.J. Super. 434, 443 (App. Div. 2014). One such improper method is disparagement because a prosecutor's expression about the bona fides of the accused's arguments may tend, "in the minds of jurors[,] [to] . . . add the weight of the prosecutor's official and personal influence and knowledge to the probative force of the evidence adduced."  State v. Thornton, 38 N.J. 380, 398 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed.2d 1039 (1963). Although prosecutors possess considerable leeway to make vigorous and forceful contentions, they may not "cast[] unjustified aspersions on the defense or defense counsel."  State v. Nelson, 173 N.J. 417, 461 (2002); see alsoState v. Smith, 167 N.J. 158, 177 (2001). The prosecutor exceeded the bounds of proper advocacy when he stated to the jury that defendant's arguments were largely "downright repulsive."

Defense counsel did not object, giving rise to application of the plain-error standard of review. Because we reverse on other grounds, however, we need not decide whether the prosecutor's improper comment was capable of producing an unjust result.

Reversed and remanded for a new trial. We do not retain jurisdiction.

1 It is not clear why the appeal was not commenced until 2012, when defendant was required to seek and obtain leave to file a notice of appeal out of time. It further appears defendant has already served his prison sentence, but because he is not a citizen he remains incarcerated on an immigration detainer.

2 Grace's mother testified that defendant "treated [Grace] like he would treat any other child[,] [and she] didn't see anything wrong with the way they were interacting with each other." She acknowledged that it was "fair to say that [she] did not see any of the events" alleged.

3 Grace testified in general that there were approximately twenty instances – only eight of which were specifically described – in which defendant improperly touched her. She acknowledged defendant never made direct contact with her vagina, he only touched or pinched her there through her clothing.

4 The other witnesses were Grace's mother, a police detective who interviewed Grace, an expert who testified about child abuse sexual accommodation syndrome, and the male and female physicians who met with and examined Grace before the investigation leading to defendant's indictment. These other witnesses provided no independent evidence of the alleged crimes. For example, the prosecutor acknowledged in his opening statement that the physicians would not provide "evidence of any physical injury as a result of the abuse" and Grace's physical complaints were "very likely [] the onset of her menstrual cycle."

5 The argument consists of approximately 100 single-spaced transcript pages. The transcript is not always illuminating; most of the argument consists of the two attorneys interrupting each other as they pressed their positions.

6 In other words, the prejudice factor does not relate to whether "the additional evidence is harmful" to the defendant but whether the defendant has taken action since the prosecution rested that placed the defendant in a disadvantageous position in attempting to respond to the evidence offered in rebuttal, for example, whether "the defendant had excused his witnesses who would have been used to rebut the new evidence offered."  Menke, supra, 25 N.J. at 71.

7 For example, Grace pointed out numerous differences between what the photographs depicted and the appearance of the same area when the alleged events occurred. Those differences included: a new wooden fence; vines that were "usually cut" on earlier occasions had been permitted to grow along the fence; the doghouse, in which one of the alleged events occurred, had changed locations; a truck that factored into another alleged event was not in the same location; a bush along the property line had grown larger; and a swing set on the property of Grace's family was not in the same location.

8 Defendant also complains of the less severe assertion in the summation that the law allows a child victim to take the stand and "to be subjected to a[n] aggressive, at times, and antagonistic cross examination[.]"

No drug court to avoid jail for 2c:40-26 State v Borges

No drug court to avoid jail for 2c:40-26 State v Borges
STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. TANIA M. BORGES,

Defendant-Appellant.

___________________________

April 1, 2015

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6102-12T2 unpublished

Before Judges Reisner and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-01-00141.

Nancy C. Ferro, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Anthony C. Talarico, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Tanya Borges appeals from her conviction for fourth-degree driving during a period of license suspension imposed for a second or subsequent violation of N.J.S.A. 39:4-50 (driving while intoxicated).  N.J.S.A. 2C:40-26(b). Her appeal focuses on her exclusion from the Drug Court program, which was based on a determination that defendant was subject to a mandatory minimum period of incarceration under N.J.S.A. 2C:40-26(b). See N.J.S.A. 2C:35-14(b)(3) (exclusion from Drug Court probation for persons subject to a mandatory minimum period of incarceration). 

Defendant appealed from the Drug Court rejection, and on July 23, 2013, the trial judge granted her application, conditioned on her first serving 180 days in the county jail without parole, the term of imprisonment required by N.J.S.A. 2C:40-26(c). Defendant declined the conditional entry into the Drug Court program, and filed an appeal to this court from the July 23, 2013 order. Defendant then pled guilty to violating N.J.S.A. 2C:40-26(b), conditioned on her right to pursue her appeal of the July 23 order. On November 6, 2013, the trial court sentenced her to serve 180 days in the county jail without parole, but stayed the sentence pending the outcome of her appeal.¹

On this appeal, defendant presents the following argument:

THE COURT BELOW ERRED BY REFUSING TO ALLOW DEFENDANT TO ENTER THE DRUG COURT SPECIAL PROBATION PROGRAM IN LIEU OF INCARCERATION AND REQUIRING HER, INSTEAD, TO FIRST SERVE A 180 DAY JAIL SENTENCE WITH NO PAROLE ELIGIBILITY AND THEN ALLOWING HER TO ENTER THE DRUG COURT PROGRAM.

Defendant's arguments in support of this point require little discussion.  R. 2:11-3(e)(2). The short answer is that this case is governed by our recent opinion in State v. French, 437 N.J. Super. 333 (App. Div. 2014), certif. denied, ___ N.J. ___ (2015). In French, we held that that a defendant convicted of violating N.J.S.A. 2C:40-26(b) must be sentenced to a term of 180 days in jail without parole and cannot be sentenced to "a non-jail rehabilitation program" in lieu of serving any portion of that jail term.  Id. at 338. We reaffirmed that holding in State v. Harris, 439 N.J. Super. 150 (App. Div. 2015). 

The Legislature's purpose in requiring a mandatory period of "imprisonment" for this offense, with no possibility of parole, is also clear. Alternatives to jail, like the inpatient drug rehabilitation program involved in French, or the home detention and community service programs at issue here, do not protect the public in the same way as incarceration. This public safety consideration is especially relevant in the case of a defendant who loses his or her driving privileges for DWI, but then continues to drive despite the license suspension.

Because N.J.S.A. 2C:40-26(c) requires a "fixed minimum sentence of not less than 180 days" without parole eligibility for violations of N.J.S.A. 2C:40-26(b), a sentence to a non-custodial "alternative program," instead of jail, is plainly illegal.

[Id. at 160.]

Defendant's reliance on State v. Meyer, 192 N.J. 421 (2007), is misplaced, because the defendant in that case was otherwise eligible for a probationary term. In this case, defendant is not eligible for a probationary term because N.J.S.A. 2C:40-26(c) unambiguously requires that she be sentenced to a jail term of 180 days without parole. Accordingly, we affirm the order on appeal. 

This case is remanded to the trial court for the limited purpose of entering an order, within thirty days of the date of this opinion, vacating the stay of defendant's sentence.

Affirmed in part, remanded in part. 

1  Entry of the judgment of conviction, which was a final order, rendered the earlier order ripe for appeal as of right. 

STATE OF NEW JERSEY VS. TALADEEN ROSS, ET AL. A-3026-13T4/A-5460-13T4

STATE OF NEW JERSEY VS. TALADEEN ROSS, ET AL. 

A-3026-13T4/A-5460-13T4 (CONSOLIDATED) 

During the pretrial stage of this criminal prosecution, the trial judge entered orders pursuant to a motion filed by the Public Defender's Office directing a non-party – the County of Middlesex – to provide the means by which defendants incarcerated in the county jail could accept, access and examine electronic discovery. Although the court agreed with the County that these criminal proceedings did not present an adequate framework for granting relief against a non-party and although the court also determined that the judge should not have further entertained these matters once the County filed an appeal, the court concluded that the appeal had been rendered moot because the County complied with the orders in question and any ruling the court may make in reviewing the orders would have no practical bearing on the parties at this time. 

STATE OF NEW JERSEY VS. ANTHONY F. STALTER A-5674-12T4

STATE OF NEW JERSEY VS. ANTHONY F. STALTER 

A-5674-12T4 

The Law Division denied defendant's request for jail credits based on his time at a residential treatment program, which was a condition of his sentence of probation as a Track 2 participant in Drug Court. We affirmed, determining that only a Track 1 participant is eligible for jail credit under those circumstances. N.J.S.A. 2C:35-14(f)(4) provides that Drug Court defendants subject to a presumption of incarceration, who are assigned to Track 1 and must be sentenced to "special probation," are entitled to receive jail credit for such participation. However, they are also subject to prosecution for escape if they leave the program without permission. N.J.S.A. 2C:35-14(d). Track 2 defendants are sentenced to general probation, N.J.S.A. 2C:45-2, and are not subject to prosecution for escape if they leave a residential program without permission. N.J.S.A. 2C:35-14 does not apply to them and Rule 3:21-8 does not provide for jail credits under those 

conditions, absent unusual circumstances not present in this case. State v. Reyes, 207 N.J. Super. 126, 141-43 (App. Div.), certif. denied, 103 N.J. 499 (1986). 

05

STATE OF NEW JERSEY VS. DION E. ROBINSON A-5600-12T3

 STATE OF NEW JERSEY VS. DION E. ROBINSON 

A-5600-12T3 

The court reverses an order denying defendant's motion to suppress the handgun seized in a "protective sweep" of his car. 

Following a routine late-night traffic stop on the Garden State Parkway, police dispatch advised the patrol officer that defendant driver and one of his three passengers had open warrants and were known to carry weapons. Deciding to proceed "tactically," five officers approached with guns drawn and ordered all occupants out of the car. The two men with warrants were arrested and placed in patrol cars. Neither of the two remaining passengers possessed a driver's license. Because there are no facts in the record to support a reasonable suspicion on the part of the officer that the unlicensed drivers were dangerous and could return to the car to obtain immediate access to a weapon, the court deems the search unreasonable. 

Judge Nugent dissents, concluding the totality of circumstances justified both the officer's belief that a gun was in the car and his protective sweep for the safety of the officers on the scene as well as the public under the community caretaking doctrine. 

ESTATE OF PATRICIA GRIECO, BY ITS ADMINISTRATOR VINCENT GRIECO AND VINCENT GRIECO, INDIVIDUALLY, VS. HANS J. SCHMIDT, M.D. AND ADVANCED LAPAROSCOPIC ASSOCIATES A-2392-13T4

ESTATE OF PATRICIA GRIECO, BY ITS ADMINISTRATOR VINCENT GRIECO AND VINCENT GRIECO, INDIVIDUALLY, VS. 

HANS J. SCHMIDT, M.D. AND ADVANCED LAPAROSCOPIC ASSOCIATES 

A-2392-13T4 In this medical malpractice action, plaintiffs – the estate and husband of the late Patricia Grieco – obtained leave to appeal an interlocutory order that barred witnesses from recounting what Patricia said her doctor's staff told her in response to her complaints of chest pains following surgery. The court reversed because the trial judge could not properly determine the trustworthiness of the statements, as required by N.J.R.E. 804(b)(6), without having listened to the witnesses testify at a N.J.R.E. 104 hearing. In addition, the court found the trial judge's concerns about the "hearsay within hearsay" problem were mistaken since the inner hearsay – what defendant's staff allegedly told Patricia – was admissible, N.J.R.E. 803(b)(4). 

FELICIA PUGLIESE VS. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK/ EDGARD CHAVEZ VS. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK A-0857-13T2/A-1012-13T2

FELICIA PUGLIESE VS. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK/ EDGARD CHAVEZ VS. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK 

A-0857-13T2/A-1012-13T2 

In these appeals from termination, two tenured teachers assert that their legal defenses were not considered by the Commissioner of Education, the arbitrator hearing the case, or the trial court. The arbitration hearings were conducted pursuant to the then-recently enacted Teacher Effectiveness and Accountability for the Children of New Jersey Act (TEACHNJ), which replaced Administrative Law Judges with arbitrators and immediate appellate review with trial court review. The evaluations upon which the tenure charges were based took place prior to TEACHNJ. 

The matters are remanded for the Commissioner to explicitly decide those legal defenses that the Commissioner does not expressly delegate to the statutorily-mandated arbitrators to decide. The Commissioner must also inform the arbitrators what legal standards to apply to teachers who have received tenure charges after the effective date of TEACHNJ alleging inefficiency occurring prior to the effective date of the statute. 

STATE OF NEW JERSEY VS. A.L. A-4429-13T2

STATE OF NEW JERSEY VS. A.L. 

A-4429-13T2 

In this case of first impression, we determine the procedures that should be used to review the indigency status of a defendant who has been convicted of a crime and who requests the services of the Office of the Public Defender (OPD) to file an appeal on her behalf. During the pendency of defendant's appeal from her conviction, the State filed a motion with the trial court, rather than this court, seeking to prohibit the OPD from continuing to represent defendant in the appeal based upon its assertion that defendant was not indigent. We conclude that, pursuant to the clear language of Rule 2:9-1(a), this motion should have been filed with the Appellate Division in the first instance. 

STATE OF NEW JERSEY VS. JAMES L. LEGETTE A-1207-13T3

STATE OF NEW JERSEY VS. JAMES L. LEGETTE 

A-1207-13T3 

Washington v. Chrisman, 455 U.S. 1, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982), and State v. Bruzzese, 94 N.J. 210, 234 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), allow the police to accompany arrestees who want to go into their residence to retrieve identification or personal items. We hold the same is true in a valid investigatory stop based on reasonable suspicion, at least if the officer has a reasonable belief that the detainee is armed and dangerous. In that situation, accompaniment by the officer is reasonable to avoid the possible danger to the officer and risk of escape if the detainee is allowed to go into the residence unaccompanied. If the detainee decides not to enter the residence once he learns he will be accompanied, the officer may not enter without satisfying the warrant requirement or an exception. 

If the detainee seeks to conceal evidence while in the residence, the officer may prevent the concealment, and secure the evidence. 

STATE OF NEW JERSEY VS. GREGORY A. MARTINEZ A-5019-12T4

STATE OF NEW JERSEY VS. GREGORY A. MARTINEZ 

A-5019-12T4 

We again examine the tension between a trial court's discretionary "authority to control its own calendar" by denying an adjournment request and the need to safeguard "a defendant's Sixth Amendment right to a fair opportunity to secure counsel of his own choice" in light of State v. Miller, 216 N.J. 40, 62, 65 (2013) (citation and internal quotation marks omitted), cert. denied, __ U.S. __, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). Guided by the framework for review set forth in State v. Hayes, 205 N.J. 522 (2011), we conclude the denial of defendant's request to adjourn trial, without weighing the facts presented supporting the requested adjournment, reflects an arbitrary exaltation of expedience in case processing at the expense of defendant's right to counsel. Accordingly, we vacate the judgment of conviction and remand the matter for a new trial. 

STATE OF NEW JERSEY VS. MICHELLE TOUSSAINT A-3654-13T1

STATE OF NEW JERSEY VS. MICHELLE TOUSSAINT 

A-3654-13T1 

When a defendant is convicted under N.J.S.A. 39:3-40(e) (being involved in an accident that causes injury to another, while driving with a suspended license), or N.J.S.A. 39:6B-2 (driving without insurance), the court has discretion to permit the defendant to serve the sentence in an electronic monitoring program instead of in the county jail. In construing those provisions, we distinguished State v. French, 437 N.J. Super. 333, 335 (App. Div. 2014), certif. denied, 200 N.J. 575 (2015), which held that N.J.S.A. 2C:40-26(c) did not permit sentencing alternatives for driving during a second or subsequent license suspension imposed for DWI. 

STATE OF NEW JERSEY VS. DQWAN A. TAYLOR A-1883-13T4

STATE OF NEW JERSEY VS. DQWAN A. TAYLOR 

A-1883-13T4 

The court considered whether the defendant, a passenger in a motor vehicle determined to be stolen, had a reasonable expectation of privacy in the vehicle's contents. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. The court declined the State's invitation to formulate a bright-line rule as a matter of law, that an individual operating or occupying a stolen motor vehicle, regardless of their knowledge of its status, does not have a reasonable expectation of privacy. The question whether defendant had a reasonable expectation of privacy required a fact sensitive inquiry. 

State v. William Roseman and Lori Lewin (A-105/106-13

 State v. William Roseman and Lori Lewin (A-105/106-13; 073674) 

Defendants have demonstrated extraordinary circumstances to overcome the presumption against Pretrial Intervention (PTI) for second-degree offenses and there is no factual justification for the application of the factors set forth by the prosecutor under N.J.S.A. 2C:43-12(e). Denial of defendants’ applications to Pretrial Intervention (PTI) by the prosecutor was plainly a patent and gross abuse of discretion. 

State v. Aakash A. Dalal (A-50-14;

 State v. Aakash A. Dalal (A-50-14; 075325) 

Not all threats or efforts to intimidate a judge will require recusal. However, given the serious nature of the threat, the absence of any proof of manipulation, the potential introduction of the evidence in one of the trials, and the relationships among judges within the Bergen Vicinage, a reasonable, fully informed observer could have doubts about a Bergen County judge’s impartiality. In light of recent developments, the matter is remanded to the Bergen County assignment judge for further proceedings consistent with this opinion. 

State v. Edwin Urbina (A-49-13;

State v. Edwin Urbina (A-49-13; 073209) 

The trial court’s failure to make further inquiry into defendant’s apparent assertion of self-defense, including ensuring that defendant truly understood the law of self-defense and that the State bears the burden of disproving self-defense once asserted, renders it unclear whether defendant’s plea was truly knowing, intelligent, and voluntary and requires vacation of his plea of guilty to aggravated manslaughter. 

State v. Ricky Wright (A-64-13

State v. Ricky Wright (A-64-13; 073137) 

The third-party intervention or private search doctrine does not exempt law enforcement’s initial search of defendant’s home from the warrant requirement. Absent exigency or some other exception to the warrant requirement, the police must get a warrant to enter a private home and conduct a search, even if a private actor has already searched the area and notified law enforcement. 

State v. Adkins __ NJ __ (A-91-13)

State v.  Adkins  __ NJ __ (A-91-13)

  Decided May 4, 2015

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers the application of the United States Supreme Court’s decision in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), to a case involving a blood draw, for purposes of determining blood alcohol content (BAC), that took place before the McNeely decision was issued.

In the early morning hours of December 16, 2010, defendant, Timothy Adkins, was involved in a single-car accident that resulted in injuries to his two passengers. Based on his performance on a series of field sobriety tests conducted at the scene of the accident, defendant was arrested on suspicion of Driving While Intoxicated (DWI) at approximately 2:27 a.m. Defendant was transported to the West Deptford Police Department and was advised of his Miranda rights; he invoked his right to counsel. Although Alcotest equipment was present, no breathalyzer test was administered at headquarters. Police conveyed defendant to the hospital, and the police obtained defendant’s BAC test results from a sample, drawn by hospital personnel at police direction, without the police first having secured a warrant or defendant’s prior written consent. Defendant was issued summonses for DWI, careless driving, and possession of an open container in a motor vehicle. Subsequently, a grand jury also charged him with fourth-degree assault by auto for recklessly operating a vehicle while under the influence of alcohol and causing bodily injury.

McNeely, which held that the natural metabolism of alcohol in an individual’s bloodstream does not constitute a per se exigency under a Fourth Amendment search and seizure analysis. 133 S. Ct. at 1568. In light of McNeely, on April 22, 2013, defendant filed a pre-trial motion to suppress the blood test results. Following a hearing at which only defendant testified, the court granted defendant’s motion, applying McNeely and finding that the police did not demonstrate exigent circumstances before securing a sample of defendant’s blood without a warrant.

The State appealed, and the Appellate Division reversed. 433 N.J. Super. 479 (App. Div. 2013). The panel explained that, prior to McNeely, New Jersey courts, including the Supreme Court, had cited the United States Supreme Court’s decision in Schmerber v. California, 384 U.S. 757 (1966), as support for the warrantless taking of blood samples from suspected intoxicated drivers, so long as the search was supported by probable cause and the sample was obtained in a medically reasonable manner. The panel thus reasoned that McNeely had worked a dramatic shift in the State’s Fourth Amendment jurisprudence and created a new rule of criminal procedure. The panel acknowledged that McNeely ordinarily would be applied retroactively to all cases pending on direct review, but noted that federal law generally does not apply the exclusionary rule when police conduct a search in good faith reliance on previously binding precedent, and concluded that the exclusionary rule should not be applied here.

The Court granted defendant’s petition for certification. 217 N.J. 588 (2014).

HELD: McNeely’s pronouncement on the Fourth Amendment’s requirements must apply retroactively to cases that were in the pipeline when McNeely was issued. Accordingly, the Appellate Division’s judgment is reversed. The matter is remanded to allow the State and defendant the opportunity to re-present their respective positions on exigency in a hearing on defendant’s motion to suppress the admissibility of the blood test results. In that hearing, potential dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the circumstances. The reviewing court must focus on the objective exigency of the circumstances faced by the officers.

1. In the context of the exigent-circumstances exception, the United States Supreme Court addressed the constitutionality of a warrantless blood draw from a suspected drunk driver in its 1966 decision in Schmerber, 384 U.S. 757. In finding the warrantless blood draw constitutionally permissible, the Court concluded that although a warrant is typically required for the taking of blood, the officer might have reasonably believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant threatened the destruction of evidence. The Court further added that defendant’s blood was drawn by a reasonable method and in a reasonable manner. Id. at 770-71.

2. Following Schmerber, courts were not in agreement on whether the decision created a rule that the dissipation of alcohol constituted a per se exigency justifying a warrantless search. To resolve the split in authority, the Supreme Court granted certiorari in McNeely, where the State of Missouri argued that “the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case.” 133 S. Ct. at 1567. The Supreme Court explained that Schmerber never created a per se rule but, instead, had incorporated a totality-of-the-circumstances test. Id. at 1558-60. Thus, in McNeely, the Court clarified that the dissipation of alcohol from a person’s bloodstream is not the beginning and end of the analysis for exigency in all warrantless blood draws involving suspected drunk drivers. Rather, courts must evaluate the totality of the circumstances in assessing exigency, one factor of which is the human body’s natural dissipation of alcohol.

3. The question before the Court is McNeely’s application to the warrantless drawing of defendant’s blood, which occurred prior to McNeely’s issuance. In State v. Wessells, 209 N.J. 395 (2012), the Court noted that “federal retroactivity turns on whether a new rule of law has been announced, coupled with an analysis of the status of the particular matter, that is, whether it is not yet final, is pending on direct appeal, or is being collaterally reviewed.” Id. at 411. The Court recognized that if a new rule has been established “for the conduct of criminal prosecutions” it will “be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 412 (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). Accordingly, in Wessells, the Court applied a new rule of law that had been established in a United States Supreme Court decision to a case pending review in New Jersey at the time the decision was handed down. As the Appellate Division found, and defendant and the State acknowledge, this case calls for a similar result. McNeely represents new law settling an area of criminal practice, thus, under federal retroactivity law, the decision deserves pipeline retroactive application. The United States Supreme Court has pronounced the standard to be applied under the Fourth Amendment to warrantless searches involving blood draws of suspected DWI drivers and, under Supremacy Clause principles, this Court is bound to follow it as the minimal amount of constitutional protection to be provided. Therefore, in accord with Wessells, McNeely applies retroactively to cases that were in the pipeline when it was decided.

4. The Court next considers whether the exclusionary rule should have any applicability in suppressing defendant’s blood test results when the police merely followed an asserted, commonly held understanding of Schmerber’s requirements in this State. Our State declined to recognize the exception to the exclusionary rule that was first established in United States v. Leon, 468 U.S. 897 (1984), and has consistently rejected a good faith exception to the exclusionary rule. This matter deals specifically with police conduct in reliance on case law in New Jersey that led law enforcement to the reasonable conclusion that the natural dissipation of alcohol from the human body created exigency sufficient to dispense with the need to seek a warrant. Although the Court’s decisions never expressly pronounced an understanding of Schmerber that per se permitted warrantless blood draws in all cases on the basis of alcohol dissipation alone, case law contains language that provides a basis for such a belief. The United States Supreme Court has now clarified the appropriate test to be applied to warrantless blood draws, and this Court adheres to that test without any superimposed exception.

5. In these pipeline cases, law enforcement should be permitted on remand to present their basis for believing that exigency was present in the facts surrounding the evidence’s potential dissipation and police response under the circumstances to the events involved in the arrest. The exigency in these circumstances should be assessed in a manner that permits the court to ascribe substantial weight to the perceived dissipation that an officer reasonably faced. Reasonableness of officers must be assessed in light of the existence of the McNeely opinion. But, in reexamining pipeline cases when police may have believed that they did not have to evaluate whether a warrant could be obtained, based on prior guidance from the Court that did not dwell on such an obligation, reviewing courts should focus on the objective exigency of the circumstances that the officer faced in the situation.

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.