Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Sunday, January 24, 2021

STATE OF NEW JERSEY VS. E.J.H. (FO-20-0144-20, UNION COUNTY AND STATEWIDE) (A-4228-19T

 STATE OF NEW JERSEY VS. E.J.H. (FO-20-0144-20, UNION COUNTY AND STATEWIDE)  (A-4228-19T

In this appeal, the court considers whether words and gestures directed to a domestic violence complainant, by way of a consensually-activated home security camera, violated the strictures of the restraining order issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. During the plea hearing, the Family Part judge sua sponte rejected defendant's factual basis for the disorderly persons offense of contempt for violating the restraining order and dismissed the complaint. The judge found as a matter of law that defendant did not knowingly violate the restraining order. Instead, the judge concluded the electronic transmission of defendant's comments and lewd gesture to his estranged wife during his parenting time, were not expressly prohibited under the restraining order and, as such, defendant did not knowingly"contact" his estranged wife.

Although the restraining order did not expressly prohibit defendant from directing remarks to – or making gestures at – his estranged wife via the home security camera, the order expressly prohibited defendant from "having any oral" or "electronic, or other form of contact or communication with [her]." Because defendant directed his comments and gesture to his estranged wife, by way of a camera that was specifically activated so that she could observe his parenting time, defendant was aware of the high probability that she would hear his comments and observe his lewd gesture. Accordingly, this court vacated the trial judge's order and remanded for reinstatement of the complaint.

State v. Amrit Singh (083236) (Middlesex County & Statewide) (A-37-19

 State v. Amrit Singh (083236) (Middlesex County & Statewide) (A-37-19; 083236)

The detective should not have referenced defendant in his summary of the surveillance footage. Here, however, that fleeting reference did not amount to plain error in light of the other evidence produced. And the detective’s testimony regarding the sneakers was proper. He saw the sneakers on the video prior to testifying and had first-hand knowledge of what the sneakers looked like because he saw defendant wearing them on the night of his arrest. N.J.R.E. 701 requires only that testimony be rationally based on the witness’s perception and that such testimony help the jury.

State v. Damon Williams (083532) (Camden County & Statewide) (A-46-19; 083532)

 State v. Damon Williams (083532) (Camden County & Statewide) (A-46-19; 083532)

The prosecutor’s comments and use of the PowerPoint slide amounted to prejudicial error.

Wednesday, January 20, 2021

Summer 2020 Municipal Court Law Review

Summer Municipal Court Law Review 2020  

1. New trial ordered where police did not give full Miranda warning State v Hager  
2. US Supreme Court ruled that it was reasonable under the Fourth Amendment for a police officer to make a traffic stop after running the license plate of a vehicle and learning that the owner’s driver’s license has been revoked Kansas v Glover 
3. Both jail and probation imposed in criminal driving while suspended after DWI. State v Chavarria
4. Crime spree exception to expungement approved here. State v A.R. 
5. Blended family members can apply for domestic violence orders S.C. V. J.D.  
7. Drunk driver statements and arrest proper where wife let police into house State v. Kearstan unreported
8. Voluntary consent to blood and urine here State v. Byer unreported
9. Handling Drug, DWI and Serious Cases in Municipal Court Seminar October 26, 2020 

 
1. New trial ordered where police did not give full Miranda warning State v Hager  
     The court considered whether the omission of one of the Miranda warnings during custodial interrogation adequately conveys the substance of the warnings and concluded it did not, notwithstanding the fact that defendant continuously interrupted the administration of the warnings. Acknowledging out-of-state authority holding that a suspect may waive Miranda warnings by interrupting their delivery, the court concluded that the suspect's interruption of the warnings does not discharge law enforcement of their duty to deliver them. Finding that the erroneous introduction of the partially unwarned statements was not harmless error, the court reversed defendant's conviction, which followed a bifurcated jury trial, and vacated his guilty plea on the weapons offense. Relying on United States v. Patane, 542 U.S. 630 (2004), however, the court rejected defendant's contention that suppression of the weapon was mandated as a remedy for the Miranda violation despite the fact that the weapon was seized as a result of a search warrant based on the statements. (14-07-0678)


2. US Supreme Court ruled that it was reasonable under the Fourth Amendment for a police officer to make a traffic stop after running the license plate of a vehicle and learning that the owner’s driver’s license has been revoked Kansas v Glover Supreme Court of the United States. No. 18-556.
A Kansas deputy sheriff ran a license plate check on a pickup truck, discovering that the truck belonged to respondent Glover and that Glover's driver's license had been revoked. The deputy pulled the truck over because he assumed that Glover was driving. Glover was in fact driving and was charged with driving as a habitual violator. He moved to suppress all evidence from the stop, claiming that the deputy lacked reasonable suspicion. The District Court granted the motion, but the Court of Appeals reversed. The Kansas Supreme Court in turn reversed, holding that the deputy violated the Fourth Amendment by stopping Glover without reasonable suspicion of criminal activity.
Held: When the officer lacks information negating an inference that the owner is driving the vehicle, an investigative traffic stop made after running a vehicle's license plate and learning that the registered owner's driver's license has been revoked is reasonable under the Fourth Amendment. 
(a) An officer may initiate a brief investigative traffic stop when he has "a particularized and objective basis" to suspect legal wrongdoing. United States v. Cortez, 449 U. S. 411, 417. The level of suspicion required is less than that necessary for probable cause and "depends on "`the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'"" Prado Navarette v. California, 572 U. S. 393, 402. Courts must therefore permit officers to make "commonsense judgments and inferences about human behavior." Illinois v. Wardlow, 528 U. S. 119, 125. P. 3.
(b) Here, the deputy's common sense inference that the owner of a vehicle was likely the vehicle's driver provided more than reasonable suspicion to initiate the stop. That inference is not made unreasonable merely because a vehicle's driver is not always its registered owner or because Glover had a revoked license. Though common sense suffices to justify the officer's inference, empirical studies demonstrate that drivers with suspended or revoked licenses frequently continue to drive. And Kansas' license-revocation scheme, which covers drivers who have already demonstrated a disregard for the law or are categorically unfit to drive, reinforces the reasonableness of the inference that an individual with a revoked license will continue to drive. Pp. 4-6.
(c) Glover's counterarguments are unpersuasive. He argues that the deputy's inference was unreasonable because it was not grounded in his law enforcement training or experience. Such a requirement, however, is inconsistent with this Court's Fourth Amendment jurisprudence. See, e.g., Navarette, 572 U. S., at 402. It would also place the burden on police officers to justify their inferences by referring to training materials or experience, and it would foreclose their ability to rely on common sense obtained outside of their work duties. Glover's argument that Kansas' view would permit officers to base reasonable suspicion exclusively on probabilities also carries little force. Officers, like jurors, may rely on probabilities in the reasonable suspicion context. See, e.g., United States v. Sokolow, 490 U. S. 1, 8-9. Moreover, the deputy here did more than that: He combined facts obtained from a database and commonsense judgments to form a reasonable suspicion that a specific individual was potentially engaged in specific criminal activity.  
(d) The scope of this holding is narrow. The reasonable suspicion standard "`takes into account the totality of the circumstances.'" Navarette, 572 U. S., at 397. The presence of additional facts might dispel reasonable suspicion, but here, the deputy possessed no information sufficient to rebut the reasonable inference that Glover was driving his own truck.  


3. Both jail and probation imposed in criminal driving while suspended after DWI. State v Chavarria

Defendant pleaded guilty to two counts of violating N.J.S.A. 2C: 40-26(b) by driving during a period of license suspension or revocation for a second or subsequent violation of N.J.S.A. 39:4-50, driving while under the influence, or N.J.S.A. 39:4-50a, refusal to provide a breath sample. The court sentenced defendant on each count to a 180-day term of imprisonment with a 180-day period of parole ineligibility as a condition of serving a two-year probationary term. The court ordered the custodial terms to be served consecutively and the probationary terms to be served concurrently.
Defendant argued his sentences are illegal because the Criminal Code does not authorize a spilt sentence with a term of imprisonment that includes a mandatory period of parole ineligibility. The court disagreed, finding the plain language of N.J.S.A. 2C: 43-2(b)(2) authorizes sentences including terms of incarceration as a condition of probation, with the only limitation being the term of incarceration may not exceed 364 days. The court finds that because defendant's individual and aggregate custodial sentences require less than 364 days of imprisonment as a condition of probation, they are authorized by N.J.S.A. 2C: 43-2(b)(2) even though the terms of imprisonment include mandatory periods of parole ineligibility.
The court also determined the sentencing court erred by failing to make findings supporting its imposition of consecutive sentences, see State v. Yarbrough, 100 N.J. 627 (1985), and by imposing sentences that were both consecutive and concurrent, see State v. Rogers, 124 N.J. 113 (1991). The court remanded for resentencing. A-4473-18T3)


4. Crime spree exception to expungement approved here. State v A.R. 
This case presents the question of whether petitioner A.R.'s convictions fall within the "crime-spree" exception contained within N.J.S.A. 2C: 52-2(a), making them eligible for expungement. Specifically, the granting or denying of petitioner’s expungement petition turns on the phrase: “crimes [which are] interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period of time.” N.J.S.A. 2C: 52-2(a). Petitioner and the State concede that this phrase is undefined in the statute, yet offer competing interpretations. The State proposes a strict interpretation of this language, whereas petitioner asserts that the expungement statute – as remedial legislation – should be liberally interpreted. This court concludes that a liberal interpretation of this language is consistent with the general purpose of the expungement statute. Petitioner’s convictions are “closely related in circumstances” because they stem from two instances where he engaged in the unlawful sale of narcotics to a “friend” and an undercover officer, and were committed over a period of six weeks, which is a “comparatively short period of time.” Therefore, petitioner’s convictions are eligible for expungement pursuant to N.J.S.A. 2C:52-2(a). (00-09-1483/01-02-0229)

5. Blended family members can apply for domestic violence orders S.C. V. J.D.  
This domestic violence case concerns the breadth of “household member” jurisdiction in the context of a modern, blended-family where the parties are adult, half-siblings who shared meaningful, regular parenting time with their common father during their youth – though never resided together. Throughout their youth, the parties regularly and consistently spent substantial periods of time at their common father’s home, including the defendant spending overnights every other weekend during the school year and more extended times during the summer at their father’s home. Although he did not have a bedroom, he had a fixed sleeping arrangement and drawers containing underwear, gym shorts, and toiletries. During and after college, their in-person contact decreased, but they still gathered informally and at family milestones and vacations. (FV-13-1110-19)

6. Interlock required even for out of state drivers with Refusal State v. Colson N.J. Super. App. Div NOT APPROVED FOR PUBLICATION 
Defendant appealed the order directing him to install an ignition interlock device. Defendant was charged with DWI, refusal to submit to breath testing and reckless driving. He pled guilty to refusal to submit to a breath test and the other charges were dismissed. He was sentenced to loss of driving privileges, installation of an ignition interlock device and to attend 12 hours at the Intoxicated Drivers Resource Center. Municipal court judge rejected the defense argument that ignition interlock device installation did not apply to out-of-state drivers. Defendant appealed and trial judge imposed the same sentence as the municipal court judge. 
      Defendant renewed his argument that the interlock device requirement did not apply to him because he was licensed in Pennsylvania. He argued N.J.S.A 39:4-50(c) showed the legislature intended to differentiate between New Jersey drivers and out-of-state drivers and the ignition interlock requirement applied when a driver's license was suspended not when his driving privileges were revoked. Court was not persuaded and noted the plain language of the refusal statute did not exempt out-of-state drivers from the ignition interlock device requirement and punished "any person" who violated the statute. Source Daily Briefing - 03/16/20 14-2-4053


7. Drunk driver statements and arrest proper where wife let police into house  State v. Kearstan N.J. Super. App. Div. unreported
Defendant appealed his DWI conviction. Defendant arrived at the marital home with damage to his car and a missing mirror. His wife called 911, reported he was in the basement, had an alcohol issue and was intoxicated. Officer went to the house to conduct a welfare check, wife invited officer into the house and officer saw defendant staggering, having difficulty pulling up his pants and smelling of alcohol. Officer noted defendant needed assistance to simply stand up. Officer and defendant went outside to talk away from the children and officer noticed defendant's bloodshot eyes and slurred speech. Defendant admitted to having several drinks. Officer administered field sobriety tests, arrested defendant and a blood draw showed a BAC of 0.29 percent.     
  Defendant moved to suppress the blood alcohol test and his incriminating statements. Trial court denied the suppression motion, finding wife invited officer into the home, the warrantless entry was justified under the community-caretaker and emergency-aid doctrines and the questioning was similar to a preliminary roadside drunk driving investigation. 
     Defendant argued removing him from his home was improper and his inculpatory statements were obtained in violation of the Fourth Amendment. The Appellate Court agreed with trial court that officer lawfully entered the house at wife's invitation and defendant's incriminating responses were the result of a proper investigatory interrogation.
Source https://www.law.com/njlawjournal/almID/1569032182NJA586717T/

8. Voluntary consent to blood and urine here State v. Byer unreported
   Defendant appealed from a decision that denied her motion to suppress her statements to the police, as well as urine and blood draw evidence, following a fatal car crash. While in the hospital following the crash, defendant orally acknowledged and then signed a card that confirmed that the police officer had recited her Miranda rights. 
Defendant also signed a consent form for a blood and urine draw, which the officer had also read to her. Two hours later, after learning that the other driver had died, another police officer recorded an interview with defendant but did not advise her of her Miranda rights. 
Defendant was then allowed to leave the hospital and was not arrested or charged until the toxicology reports were returned. The trial judge found that defendant had not been in custody while she was in the hospital and was free to leave. 
The trial judge noted that even if she was in custody at the hospital, defendant knowingly and voluntarily waived her rights. The trial judge explained that the circumstances did not warrant that defendant be re-Mirandized by the second officer because there were no intervening events that would have diluted the effectiveness of the waiver.   
The Appellate court affirmed and found that defendant's arguments on appeal were without sufficient merit to warrant discussion. The court's review of the record demonstrated no basis to second-guess the trial judge's detailed findings of facts and conclusions of law that defendant was not in police custody, had been properly advised of her rights and waived those rights, and voluntarily consented to the blood and urine draw. A-4161-17T4
Source https://www.law.com/njlawjournal/almID/1567649304NJA416117T/

9. Handling Drug, DWI and Serious Cases in Municipal Court Seminar  October 26, 2020  3pm Virtual via Zoom
-New Expungement Law
-Decriminalization of pot
-New DWI penalties
-Can new Dwi law apply to older dwi charges
     Speakers: Kenneth A. Vercammen, Esq., Past Municipal Court Attorney of the Year
Norma M. Murgado, Esq. 
Chief Prosecutor (Elizabeth), Chief Prosecutor (Woodbridge)
Lorraine Nielsen, Esq. Municipal Court Prosecutor, Milltown
John Menzel, Esq.
Past Chair, NJSBA Municipal Court Practice Section 
William Brigiani, Esq. Past Middlesex Bar President
NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION
NJICLE, A Division of the NJSBA NJ State Bar Phone: (732) 214-8500  CustomerService@njsba.com
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  Small photo page 3 bottom
  Admiral Wayne Justice U.S.C.G Retired Rear Admiral was keynote speaker at outdoor VFW Cocoa Beach Memorial Day remembrance, concluding with Taps. Proud to attend, I stood in the back in the rain, knowing our serviceman did so much more to protect us. Ken V, life member VFW Aux and American Legion Sons.

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Criminal Articles from NJLaws Website and BeNotGuilty.com website
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Cut & paste all reported and sometimes unreported criminal case squibs from NJ Judiciary.
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Defending DWI and Drug Possession (2020) Bound book
List Price: $59.00 USD
NJ State Bar’s new book
Written by: Kenneth A. Vercammen

     This informative handbook will provide you with guidance on how to handle everything pertaining to the drug and DWI defense - from the initial contact with the client, to walking into the courthouse, and managing the steps that follow. It is a “how to” manual that you and your staff can follow with checklists and forms.
This book is intended to help solo/small-firm attorneys and newly admitted attorneys prepare to handle these cases and to better represent their clients. This handbook will help attorneys represent persons charged with DWI, drug, and other criminal and traffic offenses.
Special Feature: Over 50 modifiable forms and motions
Over 50 forms and motions are included to help make you (and your staff) more efficient and productive, while also reducing the chance for mistakes.

Bonus!
Also includes a section on marketing the DWI and drug defense practice.

Table of Contents:
1 Pre-Interview
2 Office Interview and Preparing Notices to the Court and Prosecutor
3 Pretrial Motions
4 Trial Preparation
5 Trial
6 Sentencing and Post Trial
7 Supreme Court Caselaw and Federal Statutes
8 Marketing the DWI and Drug Defense Practice 
Book # 1177719   New Jersey Institute for Continuing Legal Education  A Division of the NJSBA One Constitution Square, New Brunswick, NJ 08901 (732) 214-8500 · CustomerService@njsba.com
https://tcms.njsba.com/personifyebusiness/njicle/Store/ProductDetails.aspx?productid=46708744

Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's award winning 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. He is admitted to the Supreme Court of the United States.

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  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. 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. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4th degree black belt.


KENNETH VERCAMMEN
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500



Fall 2020 N.J.Municipal Court Law Review

 
Fall 2020 N.J.Municipal Court Law Review 

Recent Cases in Municipal Court
1. Guilty plea vacated where driver did not admit to the accuracy of the test results. State v. Vargas ..................p1
2. Blood and urine samples could be taken before issu- ance of the search warrant as part of defendant’s medical care State v. Uppal ….p1
3. Stop reasonable where person ran from police even though description different State v. Butler..p2
4. Jail always applies to criminal driving while sus- pended, Laurick application denied State v. Konecny ...p2
5. NJ Judiciary’s Online Dis- pute Resolution (ODR) to let pro se work online without hiring an attorney .............p3 
6. New book Defending DWI and Drug Possession (2020) Bound book .........................p3
7. Free Office Space for Transitional or New Attorney .............................p4
8. [Photo of DWI book] ....p3 

Recent Cases in Municipal Court

1. Guilty plea vacated where driver did not admit to the accuracy of the test results. State v. Vargas Appellate Division
    Defendant appealed the denial of his motion to vacate his guilty plea to DWI. Defendant crashed his vehicle and was tak- en to the hospital with serious injuries. A hospital blood test showed a BAC of .184 percent and he was charged with a per se DWI offense, careless driving, failure to keep right and failure to wear a seatbelt. He pled guilty to the DWI offense in April 2012. In 2018, he was again charged with DWI and he moved to vacate his 2012 DWI conviction to avoid enhanced punishment. Municipal court rejected defendant’s arguments that the legal consequences of his guilty plea were not adequately explained to him and the factual basis for the guilty plea was insufficient. Defendant appealed to the Law Division, which affirmed.
    Defendant appealed and court found his argument that he was not properly advised of the consequences of his plea lacked all merit. However, defendant’s plea colloquy was “not ideal” and the formulation of the critical question posed to defendant concerning the BAC elements was problematic. Although defendant acknowledged he understood the blood test indicated his BAC was over the legal limit, he was never asked to acknowledge or acquiesce to the accuracy of the test results. Unreported Source Daily Briefing 9/11/2020 Daily Briefing, an exclusive New Jersey State Bar Association member benefit, in partnership with the New Jersey Law Journal. Join the NJSBA for this benefit!

2. Blood and urine samples could be taken before issuance of the search warrant as part of defendant’s medical care State v. Uppal Appellate Division
    Defendant appealed from his judgment of conviction for vehicular homicide. Defendant’s vehicle caused a chain reaction of rear-end collisions, causing one vehicle to burst into flames and kill the occupants of that vehicle. Defendant’s vehicle flipped over; an off-duty EMT at the scene found defendant lying on the ground near his vehicle and began administering aid, noting the smell of alcohol on defendant’s breath and the slow reaction of his pupils. Defendant admitted to the EMT that he had consumed alcohol; however, defendant later denied consuming alcohol to the investigating trooper. At the hospital, the treating physician ordered samples of defendant’s blood drawn pursuant to normal procedures; state police later arrived and directed hospital personnel to retain the blood samples for law enforcement.
    Police subsequently obtained a telephonic warrant to collect blood samples, and hospital personnel drew a sample of defendant’s blood. The trial court also ordered the release of defendant’s toxicology report and medical records related to the analysis of samples taken from defendant for medical treatment purposes. The records disclosed the presence of opiates in defendant’s system and a BAC of at least .08. The trial court denied defendant’s subsequent motion to suppress the initial blood and urine samples taken prior to the search warrant, finding no evidence that hospital staff drew the samples at the request of law enforcement.
    On appeal, defendant challenged the denial of his motion to suppress the results of a toxicology test from samples taken from defendant by hospital personnel during the course of defendant’s treatment following the accident. The court rejected defendant’s challenge and affirmed his conviction, agreeing with the trial court that the blood and urine samples taken before issuance of the search warrant were drawn as part of defendant’s medical care for injuries he suffered in the crash, as medical personnel suspected possible internal injuries. Unreported Source Daily Briefing 8/28/2020 

3. Stop reasonable where person ran from police even though description different - State v. Butler Appellate Division
    Defendant appealed his drug possession conviction, arguing he was unlawfully seized and the drugs in his possession should have been suppressed. Police responded to a report of an attempted burglary. The suspect was described as a tall black male. When police arrived, they found defendant, a short black male across the street from the house where the report was made. Before the police could exit their vehicle, defendant ran from the officers. As he ran, he discarded packages, which turned out to be drugs. Additional drugs were found on defendant’s person. Although the police determined defendant was not the attempted burglar, he was arrested and charged with various drug-related crimes and with resisting arrest. Defendant sought to suppress evidence of the drugs, arguing the search was not reasonable, as he did not match the description. The judge denied the motion, finding the officers had a reasonable suspicion, in part due to defendant’s conduct. Defendant then pled guilty and was sentenced to a five-year term. On appeal, the court affirmed the conviction. The court found the stop was reasonable based upon the totality of the circumstances. Although defendant’s description was not a perfect match of the reported suspect, there were similarities in the description aside from height. Also, his location on an otherwise empty street and his behavior when the police arrived made the seizure reasonable. Unreported Source 9/17/2020 Daily Briefing
 
4. Jail always applies to criminal driving while suspended, Laurick application de- nied State v. Konecny Appellate Division, unpublished.
    Defendant appealed his sentence for fourth-degree operating a motor vehicle during a period of license suspension, N.J.S.A. 2C: 40- 26(b). In 1986 and 1999, defendant was con- victed of driving while under the influence, N.J.S.A. 39:4-50. He was convicted in 2016 of refusing to submit to testing, N.J.S.A. 39:4- 50.4a, and his driver’s license was suspended for two years. While his license was suspend- ed, he was stopped three separate times for driving with a suspended license. On April 16, 2018, defendant pled guilty to three charges of operating a motor vehicle during a period of license suspension, N.J.S.A. 2C:40-26(b). For each offense, defendant acknowledged that at the time he operated his vehicle, he knew his license was suspended. Defendant sought post-conviction relief (PCR) regarding the 1999 DWI and 2016 refusal conviction pursuant to State v. Laurick, 120 N.J. 1 (1990), arguing an unconcealed prior DWI conviction could not be used to increase a custodial term for subsequent DWI convictions. Defendant was granted PCR relief for both convictions on the basis that a DWI conviction may not be used to enhance any subsequent conviction of N.J.S.A 39:3-40 or N.J.S.A. 2C:40-26 pursuant to Laurick. On October 23, 2018, defendant was sentenced on the driving while suspended offenses to concurrent terms of two years’ probation and 180 days in jail with 180 days of parole ineligibility on each offense, plus appropriate fines and penalties.
The trial judge rejected defendant’s re- quest that he apply Laurick on the N.J.S.A. 2C:40-26(b) charges. The judge found Laurick was inapplicable as N.J.S.A. 2C:40-26 was a mandatory minimum sentence, and not an enhanced sentence. On appeal, the court af- firmed the lower court’s decision. The court found Laurick did not apply to convictions under N.J.S.A. 2C:40-26. The elements of the statute were satisfied and the mandatory pe- riod of incarceration applied. Source Daily Briefing 8/24/2020

5. NJ Judiciary’s Online Dispute Reso- lution (ODR) to let pro se handle online without hiring an attorney 
    Resolution Without In-Person Appear- ance, this will take attorneys out of the process in speeding tickets, etc. According to the press release, the public can now ask a prosecutor to review their matters and may be able to resolve their case without having to appear in person, under a recent change to municipal court operations in New Jersey.
    The Judiciary’s Online Dispute Resolu- tion (ODR) program, which started in mid- May in approximately 30 municipal courts, allows court users to dispute a charge and provide information or evidence to municipal prosecutors online.
    The ODR program applies to 37 traffic of- fenses, such as speeding, red light, stop sign or failure to yield and other point violations.
    Defendants can make their requests for review to the municipal prosecutor through NJMC Direct. After reviewing the case, the prosecutor can offer a lesser charge or decline to change the charge.
    If a lesser charge is accepted, the matter will be reviewed by a judge for approval. If ap- proved, the defendant does not need to go to court.

6. Defending DWI and Drug Possession (2020) A new Bound book
Written by: Kenneth A. Vercammen
    This informative handbook will provide you with guidance on how to handle everything pertaining to the drug and DWI defense - from the initial contact with the client, to walking into the courthouse, and managing the steps that follow. It is a “how to” manual that you and your staff can follow with checklists and forms.
    This book is intended to help solo/small- firm attorneys and newly admitted attorneys prepare to handle these cases and to better represent their clients. This handbook will help attorneys represent persons charged with DWI, drug, and other criminal and traffic offenses.
Special Feature: Over 50 modifiable forms and motions
    Over 50 forms and motions are included to help make you (and your staff) more efficient and productive, while also reducing the chance for mistakes.

Table of Contents:
1. Pre-Interview
2. Office Interview and Preparing
Notices to the Court and Prosecutor 3. Pretrial Motions
4. Trial Preparation
5. Trial
6. Sentencing and Post Trial 7. Supreme Court Caselaw
and Federal Statutes 8. Marketing the DWI &
Drug Defense Practice
List Price: $59.00 Book # 1177719 New Jersey Institute for Continuing Legal Education A Division of the NJSBA One Constitution Square (732) 214-8500 CustomerService@njsba.com


7. Free Office Space for Transitional or New Attorney and work with a Public Defender Mentor program- Edison, NJ
    Attorney will be provided with use of desk, plus if needed additional private office space in furnished basement to start their practice, rent-free. Main floor offices available for client meetings etc. In return they will handle Telephone communications with courts, Prosecutors, clients, etc, Will signings, Help handle Metuchen Municipal Court matters, municipal court appearances when they resume and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week. Must be admitted in NJ and have a car.

-Call Courts to follow up on Letter of Representation and scheduling of hearings & call Police Departments to follow up on discovery
- Prepare Timesheets on Fatal Accident cases
-Call clients and remind them of hearing dates and what to do
- Update Criminal and Civil blogs with recent cases -Assist at Senior citizen Will Seminars and Municipal Court programs
Excellent opportunity to jump-start your career. https://www.njlaws.com/office_space.html 


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Spring 2020 Municipal Court Law Review

  Spring 2020 Municipal Court Law Review 

1. No more phony stop for license plate holder partially obstructing Garden State name State v Roman- Rosado

2. Elimination of mandatory DL suspensions related to drugs and other offenses

3. Loss of license for the CDS in Motor Vehicle 39:4-49.1 eliminated   

4. No Insurance 39:6B-2  Mandatory suspension on no insurance eliminated

5. Repealed Driver’s license suspension for Failure to appear for disorderly persons offense

6. Driver’s license suspension for Failure to comply with installment order Repealed

7. Court claims parked car with engine running is operation. Attorney seeks Supreme court reversal

State v. Thompson 

8. Roadside statements inadmissible where roadside stop was improper State v. Alessi

9. Order – Limited Relaxation of Prohibition on Plea Bargaining in Municipal Court DWI Cases Implicated by State v. Cassidy 

10. Annual Happy Hour & Networking Social July 10, 2020

11 photo Expungement seminar


1. No more phony stop for license plate holder partially obstructing Garden State words State v Roman- Rosado State v. Roman-Rosado, 462 N.J.Super. 183 (App. Div. 2020) Following the stop of defendant's car for allegedly violating N.J.S.A. 39:3-33 because the license plate frame on the car's rear license plate "concealed or otherwise obscured" the words "Garden State" at the bottom of the license plate, a warrantless search of the car uncovered an unloaded handgun. The trial court denied defendant's motion to suppress the search and seizure of the handgun, and defendant subsequently pled guilty to second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1).

In defendant's appeal, the court was asked to decide: (1) whether there was reasonable suspicion to stop defendant's car for violating N.J.S.A. 39:3-33; and (2) whether the subsequent search and seizure of the handgun was legally permissible.

Based upon the common understanding of the words "conceal" and "obscure," this court concludes there was no reasonable suspicion to stop defendant's car for violating N.J.S.A. 39:3-33 where the minimal covering of "Garden State" did not make the words indecipherable. Hence, the seized gun was inadmissible to prove a second-degree certain persons offense.

For the sake of completeness, the court further decides that even if there was reasonable suspicion to stop defendant's car for a N.J.S.A. 39:3-33 violation, the subsequent search was not legally permissible because it did not satisfy the State's proffered exceptions to conduct a warrantless search of an automobile, i.e., a search incident to arrest, or a protective sweep.

Accordingly, the court reverses and vacates the conviction for second-degree certain persons not to possess weapons, and remands so defendant can move to vacate his guilty plea and have the judgment of conviction vacated pursuant to Rule 3:9-3(f).

2. Elimination of mandatory DL suspensions related to drugs and other offenses

On December 20, 2019, Governor Murphy signed S1080 into law as L. 2019, c. 276. Two provisions of this new law, namely Section 12 and subsection b. of Section 20, took effect on December 27, 2019. The remainder of this new law will take effect on January 1, 2021. 

Section 12 and subsection b. of Section 20, took effect on December 27, 2019 when the Governor submitted a certification to the Secretary of Transportation expressing his opposition to the enactment or enforcement of a law requiring driver’s license suspension for drug offenses as set forth in 23 U.S.C. § 159(a)(3)(A).

 Section 12 amended N.J.S.A. 39:4-49.1 to eliminate the suspension, revocation or postponement of driving privileges for a person who operates a motor vehicle on a highway while knowingly having in the person’s possession or in the motor vehicle any controlled dangerous substance or prescription drug without a valid prescription. Regarding the fine, this section excludes those persons who violate the provisions of N.J.S.A. 2C:35-10 (Possession, use or being under the influence, or failure to make a lawful disposition) 

Also effective on December 27, 2019 is subsection b. of Section 20, which repealed N.J.S.A. 2C:35-16 and 39:5-30.13. New Jersey Statute 39:5-30.13 allowed for the suspension or postponement of driving privileges for persons convicted of or adjudicated delinquent for a drug offense in State court, federal court, or the District of Columbia. This law has been repealed. 

Also repealed effective December 27, 2019 is N.J.S.A. 2C:35-16 which provides for the forfeiture or postponement of driving privileges of anyone convicted of or adjudicated delinquent for an offense under Chapters 35 or 36 of Title 2C as well as the suspension, revocation or postponement of driving privileges for those persons admitted to supervisory treatment, i.e., conditional discharge under N.J.S.A. 2C:36A-1, or pretrial intervention under N.J.S.A. 2C:43-12, without a plea of guilty or finding of guilt. DL suspension for Conditional Discharge eliminated.


repealed 2C:35-16 - Forfeiture or postponement of driving privileges for conviction for a person convicted of or adjudicated delinquent for a violation of any offense defined in chapter  35 Drugs or chapter 36 Paraphernalia


3. Loss of license for the CDS in Motor Vehicle 39:4-49.1 eliminated   The legislature did away with loss of license for the CDS in motor vehicle 39:4-49.1.  New: A person shall not operate a motor vehicle on any highway while knowingly having in the person's possession or in the motor vehicle any controlled dangerous substance as classified in Schedules I, II, III, IV and V of the “New Jersey Controlled Dangerous Substances Act,” P.L.1970, c. 226 (C.24:21-1 et seq.) or any prescription legend drug, unless the person has obtained the substance or drug from, or on a valid written prescription of, a duly licensed physician, veterinarian, dentist, or other medical practitioner licensed to write prescriptions intended for the treatment or prevention of disease in humans or animals or unless the person possesses a controlled dangerous substance pursuant to a lawful order of a practitioner or lawfully possesses a Schedule V substance.

A person who violates this section, except a person who violates the provisions of N.J.S.2C:35-10, shall be fined not less than $50.



4. No Insurance 39:6B-2  Mandatory suspension on no insurance eliminated

33:1-81 Misrepresenting age to induce sale or delivery of beer to minor; disorderly person –No more mandatory DL suspension

39:4-56.5 Abandonment of motor vehicle revised 2019- No more DL suspension 


5. Repealed Driver’s license suspension for Failure to appear for disorderly persons offense, a petty disorderly persons offense, a violation of a municipal ordinance, or a violation of any other law of this State N.J.S.2B:12-31


Repealed 2A:4A-43.3.Suspension, postponement of right to operate motor vehicle [was with 2A:4A-43) for an initial act of graffiti ] section 6 of P.L.1995, c.251 (C.2A:4A-43.3);

Repealed 2C:33-3.1 Penalties for juvenile violating N.J.S.2C:33-3. False public alarms. No more Driver license suspension section 2 of P.L.1999, c.195 (C.2C:33-3.1);


6. Driver’s license suspension for Failure to comply with installment order Repealed 39:4-203.2.


39:5-30.13. repealed Suspension, revocation, postponement of driving privilege for persons convicted of certain drug offenses in any federal court or other states


39:4-56.5 Abandonment of motor vehicle revised 2019

No more DL suspension 


7. Court claims parked car with engine running is operation. Attorney seeks Supreme court reversal

State v. Thompson 

    In this appeal, the court held that an intoxicated defendant asleep and behind the wheel of a parked motor vehicle with its engine running is "operating" the vehicle within the meaning of N.J.S.A. 39:4-50(a). Docket A-1909-19T6  


     Defendant appealed from his convictions for DUI and refusing to submit to a breath test. Defendant argued that the state failed to present sufficient evidence to prove the statutory element that defendant was "operating" his vehicle under the influence of alcohol or that he had a conscious intent to do so. The court rejected defendant's argument and affirmed his conviction. The court noted that the evidence at trial showed that police were called to a convenience store where defendant was observed sleeping in his car with the engine running. As officers woke defendant, they noticed the strong odor of alcohol on his breath. Defendant acknowledged to officers that he had "a couple of drinks." After failing field sobriety tests, defendant was arrested. At the police station, defendant acknowledged that he had prescriptions for methadone, hydrocodone, Xanax, and Cymbalta and that he had consumed two alcoholic drinks within a three hours period. The court held that this evidence was sufficient for the factfinder to concluded that defendant was intoxicated while sleeping behind the wheel of his vehicle. The court ruled that defendant was "operating" his vehicle since operation of a motor vehicle could include sitting or sleeping behind the wheel of a vehicle with the engine running, even if the vehicle is not observed in motion. Finally, the court found defendant's other contentions on appeal to have insufficient merit to warrant discussion. 

     Source Daily Briefing, an exclusive New Jersey State Bar Association member benefit, in partnership with the New Jersey Law Journal. Join the NJSBA for this benefit!

https://www.law.com/njlawjournal/almID/1581570609NJA190919T/


8. Roadside statements inadmissible where roadside stop was improper State v. Alessi

The circumstances of this case do not legitimize the stop. Law enforcement must have reasonable and articulable suspicion of a traffic violation, the commission of a crime, or unlawful activity before executing a traffic stop. Accordingly, the roadside statement given by defendant during the unlawful stop should have been excluded at trial, and the Court affirms the Appellate Division’s reversal of her convictions for hindering apprehension and false reporting. Because defendant’s roadside statement permeated the trial, severely affecting her credibility and ability to mount a defense to the separate burglary charge, that conviction is reversed as well. 14-1-3686 


9. Order – Limited Relaxation of Prohibition on Plea Bargaining in Municipal Court DWI Cases Implicated by State v. Cassidy 

 SUPREME COURT OF NEW JERSEY  

Pursuant to N.J. Const. Art. VI., sec. 2 par. 3, it is ORDERED that, effective immediately and until further order, the "Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey," which is an Appendix to Part VII of the Rules Governing the Courts of the State of New Jersey, are supplemented and relaxed so as to permit plea agreements in post-conviction relief cases affected by the Supreme Court decision in State v. Eileen Cassidy, 235 N.J. 482 (2018). 

This limited rule relaxation applies only to post-conviction relief proceedings in which evidential breath samples from defendants in driving while intoxicated (DWI) cases were procured using Alcotest machines calibrated without using a NIST-traceable thermometer, namely, the approximately 13,000 cases that involve findings of guilt, either by trial or by plea, referred to in the Court's January 29, 2019 order that designated a Special Master to make judicial and administrative decisions in matters affected by the Court's decision in Cassidy. 

In all other aspects, including for all cases not affected by the Court's decision in Cassidy, the "Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey" remain in full force and effect. December 18, 2019 


10. Annual Happy Hour & Networking Social July 10, 2020 Co- sponsors requested

       Co-sponsored by NJ State Bar Association Sections & several Chambers of Commerce 

   For the past five years different Professional groups and Sections of the NJ State Bar Association have co-sponsored a Happy Hour and Social event for attorneys and business professionals. The Annual Summer Networking Happy Hour is July  10, 2020 at Bar Anticipation from 5:30-7:30. 

We are requesting professional groups serve as co-sponsor for this Happy Hour.  There will be no cost to a professional group, and great benefit for your members.  It may even be a source of new members.  We only ask that you help publicize the event.  There will be a small table to greet members. 

Location: Bar Anticipation  

703 16th Avenue

Lake Como/ Belmar, NJ 07719 

Free food 5:15-7:15. The reduced price  Happy Hour is 6-7PM with $2.00 House Drink, House Wine Special or Bud/Bud Light draft. We provide special VIP wristband.

     We ask each attendee to bring a canned food donation for the St. Matthews St. Vincent Food Bank.  


11.  New trial ordered where police did not give full Miranda warning

State v Hager  

     The court considered whether the omission of one of the Miranda warnings during custodial interrogation adequately conveys the substance of the warnings and concluded it did not, notwithstanding the fact that defendant continuously interrupted the administration of the warnings. Acknowledging out-of-state authority holding that a suspect may waive Miranda warnings by interrupting their delivery, the court concluded that the suspect's interruption of the warnings does not discharge law enforcement of their duty to deliver them. Finding that the erroneous introduction of the partially unwarned statements was not harmless error, the court reversed defendant's conviction, which followed a bifurcated jury trial, and vacated his guilty plea on the weapons offense. Relying on United States v. Pagane, 542 U.S. 630 (2004), however, the court rejected defendant's contention that suppression of the weapon was mandated as a remedy for the Miranda violation despite the fact that the weapon was seized as a result of a search warrant based on the statements. (14-07-0678)


Allan Marain Esq. and Ken Vercammen speakers at Expungement seminar

Expungements to remove criminal arrests continue to be processed. The new Expungement law is starting in June 2020.

add if space

Mr. Marain notes on his website: Are you applying to nursing school? Would you like to be a teacher? Drive a school bus? Be a school crossing guard? Are you seeking a New Jersey firearms identification card? Perhaps you want to adopt a child or be a foster parent, or coach a Little League® baseball team. Maybe you're looking for a job in securities, or at Home Depot. Maybe you're just looking for a job, period. Any job. Were you ever charged with shoplifting? Or busted over a little weed?  Are any felony convictions, or even just arrests, on your record?


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Criminal Articles from NJLaws Website and BeNotGuilty.com website

http://criminalarticle.blogspot.com

Criminal Law- Recent Cases

http://njcriminallaw.blogspot.com/

Cut & paste all reported and sometimes unreported criminal case squibs from NJ Judiciary.

Criminal Statutes and Criminal Jury Charges 

http://criminal-jury.blogspot.com/

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Municipal Court and Police Phone number and Directions 

http://njpolice.blogspot.com/  


New NJ Statutes , Recent cases and Court Rules

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Defending DWI and Drug Possession (2020) Bound book

List Price: $59.00 USD

NJ State Bar’s new book

Written by: Kenneth A. Vercammen


     This informative handbook will provide you with guidance on how to handle everything pertaining to the drug and DWI defense - from the initial contact with the client, to walking into the courthouse, and managing the steps that follow. It is a “how to” manual that you and your staff can follow with checklists and forms.

This book is intended to help solo/small-firm attorneys and newly admitted attorneys prepare to handle these cases and to better represent their clients. This handbook will help attorneys represent persons charged with DWI, drug, and other criminal and traffic offenses.

Special Feature: Over 50 modifiable forms and motions

Over 50 forms and motions are included to help make you (and your staff) more efficient and productive, while also reducing the chance for mistakes.


Bonus!

Also includes a section on marketing the DWI and drug defense practice.


Table of Contents:

1 Pre-Interview

2 Office Interview and Preparing Notices to the Court and Prosecutor

3 Pretrial Motions

4 Trial Preparation

5 Trial

6 Sentencing and Post Trial

7 Supreme Court Caselaw and Federal Statutes

8 Marketing the DWI and Drug Defense Practice 

Book # 1177719   New Jersey Institute for Continuing Legal Education  A Division of the NJSBA One Constitution Square, New Brunswick, NJ 08901 (732) 214-8500 · CustomerService@njsba.com

https://tcms.njsba.com/personifyebusiness/njicle/Store/ProductDetails.aspx?productid=46708744


Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's award winning 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. He is admitted to the Supreme Court of the United States.

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  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. 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. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4th degree black belt.

KENNETH VERCAMMEN

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500


Tuesday, January 19, 2021

The State of New Jersey v Thompson

                         SUPERIOR COURT OF NEW JERSEY

                                                        APPELLATE DIVISION

                                                        DOCKET NO. A-0088-18T4


STATE OF NEW JERSEY,


          Plaintiff-Respondent,


v.


BRADLEY C. THOMPSON,

a/k/a BRAD THOMPSON and

BARTON C. THOMPSON,


     Defendant-Appellant.

_____________________________


                   Submitted November 18, 2020 – Decided December 18, 2020


                   Before Judges Whipple, Rose and Firko.


                   On appeal from the Superior Court of New Jersey, Law

                   Division, Camden County, Indictment No. 17-05-1263.


                   Joseph E. Krakora, Public Defender, attorney for

                   appellant (Stephen W. Kirsch, Designated Counsel, on

                   the brief).


                   Gurbir S. Grewal, Attorney General, attorney for

                   respondent (Lauren Bonfiglio, Deputy Attorney

                   General, of counsel and on the brief).


PER CURIAM

        Defendant Bradley C. Thompson appeals from a June 5, 2018 judgment


of conviction for criminal sexual contact and criminal trespass. We affirm.


                                          I.


        The following facts are derived from the record. On July 21, 2001, C.S,1


a twenty-seven-year-old mother, returned to her home in Lindenwold at 10:30


p.m. after grocery shopping. She resided there with her four-month-old son, her


mother, and her sister. C.S.'s mother and sister were out of town on vacation.


As C.S. unloaded her car, she heard "whistling" and "talking sounds" coming


from the left side of the house. She took care of her child and began eating


dinner in front of the television.


        Shortly thereafter, C.S. "heard something behind [her]," and someone


covered her eyes with one hand and grabbed her by the neck with an arm. The


intruder (defendant) pulled C.S. off the chair by her neck and hair and dragged


her to the first-floor bathroom. C.S. physically struggled with the intruder and


repeatedly said "no," but he was "very, very strong" and she was unable to free


herself from his tight grip around her throat.


        C.S. was thrown on the floor and a towel was placed over her head to


cover her eyes, making it impossible for her to see the intruder because it was



1

    We use initials to protect the victim's identity pursuant to Rule 1:38-3(c)(12).

                                                                            A-0088-18T4

                                          2

dark. She stopped resisting out of fear and concern what would happen next.


While lying on the floor face down on her stomach, the intruder tried to remove


C.S.'s bra but did not know how to unhook it. He asked her to unhook it but she


refused. Ultimately, he removed her bra by pulling it over her head as she


continued to resist him and told him to leave her baby alone. He then removed


her clothes and used his hands and mouth to touch and lick her breasts. He then


used his fingers and stomach to touch C.S.'s genital area and forced her to


perform oral sex on him by placing his penis in her mouth.


        During the assault the intruder told C.S., "I really want you," and she


testified his voice sounded "very young"—between fifteen and twenty years of


age.2 The intruder did not ejaculate during the assault. C.S. also estimated his


height to be five-feet, six inches, or five-feet, seven inches based upon the feel


of his body in comparison to her four-foot, eleven-inch height.


        The intruder then asked C.S. where her bedroom was, but she refused to


answer. He stated he had to take a shower, leading C.S. to believe he lived


nearby. The perpetrator left after telling C.S., "[c]ount to ten. Don't call the


cops." C.S. was "terrified" and felt "violated."





2

    Defendant was fifteen years old at the time.

                                                                          A-0088-18T4

                                         3

      C.S. immediately called her mother, and when she did not answer, C.S.


called a close family friend who lived five minutes away. The police were called


and came to C.S.'s home. Upon entering the home, the first responding officer


found C.S. sitting in a chair, "extremely upset," with scissors in her hands,


"crying as if something had just occurred." C.S. told the officer the perpetrator's


voice sounded like a teenager, and during the assault he said, "I've been wanting


you." After C.S. explained to the officer what happened, she and her mother 3


were transported to the hospital for C.S. to undergo a Sexual Assault Nurse


Examiner (SANE) examination.


      The SANE nurse noted C.S. had "an abrasion on one ankle." C.S. did not


report having any pain. The SANE nurse also collected samples from C.S.,


including a swab of dried saliva from her right breast. The samples were given


to police officers for transport to the New Jersey State Police Office of Forensic


Sciences in accordance with chain of custody protocol.


      Thereafter, officers escorted C.S. back to her home and evaluated the area.


They noticed a chair that had been moved from the patio area and placed under


the bathroom window. C.S. confirmed that neither she nor her mother moved




3

   Upon learning what happened to her daughter, C.S.'s mother immediately

drove back from where she was vacationing to the house.

                                                                           A-0088-18T4

                                        4

the chair. Neighborhood canvassing and interviews did not yield any leads. A


patrolman spoke to defendant's father, who lived across the street from C.S., but


the conversation did not produce any helpful information. Two days after the


attack, C.S. gave a tape-recorded statement to police. When asked if she knew


any teenagers in the neighborhood, C.S. responded she knew a teenager lived


across the street, but her only interaction with him occurred when she was


pregnant, and he advised her car lights were still on after she parked her car.


C.S. also stated the teenage boy's father's name was "Frank," but she did not


know the teenager personally.


      On January 23, 2002, the forensic laboratory issued a report with respect


to the samples collected during the SANE examination. A DNA profile was


generated from the sample collected from C.S.'s right breast, designated as


Specimen 12A, and she was excluded as a possible contributor to that profile.


The profile was then entered into the State's CODIS. 4



4

  CODIS stands for "Combined DNA Index System." Our Supreme Court, in a

footnote, approvingly cited our definition of CODIS: "'CODIS' means the

[Federal Bureau of Investigation]'s national DNA identification index system

that allows the storage and exchange of DNA records submitted by State and

local forensic laboratories."  N.J.S.A. 53:1-20.19; see also State v. Gathers,  449 N.J. Super. 265, 268 n.1 (App. Div. 2017) ("CODIS refers to the Combined

DNA Index System maintained in all fifty states and a number of federal

agencies to collect DNA profiles to be used for, among other things, human

identity testing.") State v. Gathers,  234 N.J. 208, 214 n.1 (2018).

                                                                         A-0088-18T4

                                       5

      On January 29, 2004, the Juvenile Justice Commission obtained a buccal


swab from defendant on an unrelated charge. However, defendant's buccal swab


was not entered into CODIS until April 2006 due to a significant processing


backlog. CODIS did not generate a match of defendant's sample to Specimen


12A obtained from C.S. by the SANE nurse.


      In 2014, the New Jersey State Police DNA Laboratory underwent a self-


audit of CODIS entries and revised their data entry procedures. 5 As a result of


the audit, the laboratory began inputting exclusionary data from samples


previously omitted. The audit remained ongoing in 2016 when an analyst from


the laboratory performing a quality control check noticed that only five loci 6 in


the DNA profile of Specimen 12A had been entered into CODIS. Because at


least seven loci in the DNA profile were required to generate a match, the analyst


entered the exclusionary data from Specimen 12A's profile to see if CODIS


would generate an investigative lead.





5

   Prior to the audit, certain exclusionary data, specifically refractory peaks

below the standardized reporting threshold, were not entered into CODIS

because they were considered inconclusive.

6

  The National Human Genome Research Institute defines locus as "the specific

location of a gene or other DNA sequence on a chromosome."

                                                                          A-0088-18T4

                                        6

      CODIS did generate an investigative lead implicating defendant, and


police obtained a voluntary buccal swab from him. The second buccal swab was


sent to the laboratory for comparison, and on August 17, 2016, the laboratory


generated a report matching the DNA profile from the second buccal swab to


the DNA profile obtained from Specimen 12A. Defendant was arrested on the


basis of the DNA match.


      In May 2017, a Camden County grand jury returned Indictment Number


17-04-1263, charging defendant with three counts of first-degree aggravated


sexual assault,  N.J.S.A. 2C:14-2(a)(3) (counts one through three); three counts


of first-degree aggravated sexual assault,  N.J.S.A. 2C:14-2(a)(6) (counts four


through six); two counts of third-degree aggravated sexual contact,  N.J.S.A.


2C:14-3(a) (counts seven and eight); and second-degree burglary,  N.J.S.A.


2C:18-2(a)(1) (count nine).


      On December 15, 2017, defendant moved to dismiss counts one through


three and counts seven through nine of the indictment based on statute of


limitations grounds. The trial court conducted a testimonial hearing, entertained


oral argument, and denied defendant's motion. Defendant moved for leave to


appeal the trial court's decision. On January 29, 2018, the trial court denied


defendant's motion for leave to appeal.



                                                                         A-0088-18T4

                                          7

      Defendant was tried before a jury in April and May of 2018. On April 25,


2018, the trial court granted defendant's motion for a judgment of acquittal on


counts four, five, six, and eight based on a finding of insufficient evidence of


severe personal injury to the victim. On May 3, 2018, the jury rendered a verdict


of not guilty on counts one through three but found defendant guilty of fourth -


degree criminal sexual contact, a lesser-included offense of count seven, and


fourth-degree criminal trespass, a lesser-included offense of count nine.


      On May 31, 2018, the court sentenced defendant to eighteen months'


imprisonment, with nine months' of parole ineligibility for the lesser-included


count seven offense and imposed a consecutive fifteen-month term of


imprisonment with no parole eligibility on the lesser-included count nine


offense. This appeal followed.


      On appeal, defendant raises the following arguments:


            POINT I


            THE COURT IMPROPERLY DENIED THE MOTION

            TO DISMISS COUNTS SEVEN AND NINE THAT

            WAS BASED UPON A VIOLATION OF THE

            STATUTE OF LIMITATIONIS.


            POINT II


            THE SENTENCE IMPOSED IS MANIFESTLY

            EXCESSIVE.



                                                                            A-0088-18T4

                                       8

                                        II.


      We apply a plenary standard of review to the trial court's decision on a


motion to dismiss, and we owe no deference to the trial court's conclusions.


Gonzalez v. State Apportionment Comm'n,  428 N.J. Super. 333, 349 (App. Div.


2012). Further, de novo review is also applied because the motion to dismiss


involves statutory construction, State v. Ferguson,  238 N.J. 78, 93 (2019)


(applying the de novo standard of review where "[t]he outcome of [the] case


depends on the meaning of . . . a statute governing territorial jurisdiction - - and


on the territorial scope of [a] . . . statute"); Paff v. Galloway Twp.,  229 N.J. 340,


351 (2017) (applying de novo review and declining to give deference to the


interpretative conclusions of the trial court), and "[a] trial court's interpretation


of the law and the legal consequences that flow from established facts are not


entitled to any special deference."      Manalapan Realty v. Manalapan Twp.


Comm.,  140 N.J. 366, 378 (1995).


      On appeal, defendant contends that since the State was in possession of


all the DNA necessary to generate a match between defendant and Specimen


12A in 2004, the statute of limitations bars prosecution of the offenses arising


out of this incident pursuant to  N.J.S.A. 2C:1-6(c). We disagree.





                                                                             A-0088-18T4

                                         9

      Generally, under  N.J.S.A. 2C:1-6(b)(11), a defendant's prosecution must


be "commenced within five years after it [was] committed."  N.J.S.A. 2C:1-6(c)


provides that time, for purposes of calculating when the statute of limitations of


criminal prosecutions


            starts to run on the day after the offense is committed,

            except that when the prosecution is supported by

            physical evidence that identifies the actor by means of

            DNA testing or fingerprint analysis, time does not start

            to run until the State is in possession of both the

            physical evidence and the DNA or fingerprint evidence

            necessary to establish the identification of the actor by

            means of comparison to the physical evidence.


      Here, the competent, credible evidence before the trial court established


that the State was first in possession of the identifying physical evidence


necessary to identify defendant contemplated by  N.J.S.A. 2C:1-6(c) on August


17, 2016, the date when "the State obtained the conclusive match between


defendant's DNA profile and the DNA profile obtained from Specimen 12A."


Thus, the time commenced, for purposes of prosecuting defendant, at that time—


August 17, 2016.


      Defendant's claim to the contrary is unsupported by the law and the record.


Courts analyzing a statute must give effect to the Legislature's intent. Johnson


Mach. Co. v. Manville Sales Corp.,  248 N.J. Super. 285, 303-04 (App. Div.


1991). The Legislature's intent is evidenced by the "language of [the] statute,


                                                                          A-0088-18T4

                                       10

the policy behind it, concepts of reasonableness[,] and legislative history." Id.


at 304. Because the "best indicator" of the Legislature's intent is "the statutory


language," courts should "ascribe to the statutory words their ordinary meaning


and significance and read them in context with related provisions so as to give


sense to the legislation as a whole." DiProspero v. Penn,  183 N.J. 477, 492


(2005).


      Generally, under the applicable statute, prosecution for a criminal offense


must be commenced 7 within five years after the crime is committed.  N.J.S.A.


2C:1-6(b)(1). The Code states that a crime or offense is committed "either when


every element occurs or, if a legislative purpose to prohibit a continuing course


of conduct plainly appears, at the time when the course of conduct or the


defendant's complicity therein is terminated."  N.J.S.A. 2C:1-6(c). An exception


to this general rule is made when "the prosecution is supported by physical


evidence that identifies the actor by means of DNA testing or fingerprint


analysis." Ibid. The exception states the clock on the statute of limitations does


not begin to "run until the State is in possession of both the physical evidence




 7 N.J.S.A. 2C:1-6(d) provides that "[a] prosecution is commenced for a crime

when an indictment is found and for a nonindictable offense when a warrant or

other process is issued, provided that such warrant or process is executed

without unreasonable delay."

                                                                          A-0088-18T4

                                       11

and the DNA or fingerprint evidence necessary to establish the identification of


the actor by means of comparison to the physical evidence." Ibid.


      During oral argument in support of defendant's motion to dismiss, defense


counsel emphasized the "in possession of" language set forth in  N.J.S.A. 2C:1-


6(b)(1) and argued defendant's arrest and indictment came more than five years


after the State obtained defendant's DNA in 2004; the State entered defendant's


DNA sample into CODIS in 2006; and the 2010 publication of the National


CODIS Manual, which stated exclusionary data from a DNA sample could be


entered into the system. The trial judge rejected these arguments:


            Now, a literal reading of this statute, the question is

            what was necessary for the State to establish the

            identification of this defendant to the specimen that [it]

            had in [its] possession.


                  ....


            In taking a literal reading of the statute that talks about

            evidence necessary to establish the identification of the

            actor, a literal reading of the comments that falls behind

            [N.J.S.A.] 2C:1-6([c]) and the comments read . . . as a

            result of the 2001 amendment, if the prosecution is

            supported by DNA or fingerprint evidence, the time

            period does not begin to run until the prosecution gets

            that evidence, not only the samples, but the evidence of

            a match. That's in the New Jersey Court Rule book.





                                                                          A-0088-18T4

                                       12

      On appeal, defendant contends the trial judge committed error 8 by relying


on an unofficial code commentary to the court rules. Additionally, defendant


seeks to support his "in possession" reading of the statute with our Supreme


Court's decision in the case of State v. Twiggs,  233 N.J. 513 (2018). Defendant


interprets Twiggs as starting "the running of the limitations clock when the State


has in its possession the DNA of the defendant and DNA from the crime scene


that is ultimately matched with defendant's." (citing Twiggs,  233 N.J. at 536-


39).


       The Court in Twiggs interpreted  N.J.S.A. 2C:1-6(c), but the underlying


case and resultant decision focused on a different aspect of the statute. Twiggs


involved a consolidated appeal 9 that sought to address the meaning of the term


"actor" in the provision and "whether the provision applies when a DNA




8

   Defendant acknowledges in his brief that the proper standard of review for

this purely legal issue is de novo.

9

  The first case on appeal, State v. Twiggs,  445 N.J. Super. 23 (App. Div. 2016),

involved two individuals, Twiggs and Tracy, charged with conspiracy to commit

robbery and robbery. Twiggs,  233 N.J. at 522. DNA recovered from the scene

of the robbery was matched to Tracy who confessed and implicated Twiggs in

the crime. Ibid. The trial court dismissed Twiggs's indictment because the DNA

evidence identified an alleged co-conspirator, not the defendant. Ibid. The

second case on appeal, State v. Jones,  445 N.J. Super. 555 (App. Div. 2016),

involved the use of comparison DNA from the victim and her sister to aid the

prosecution of two individuals for the victim's murder.

                                                                          A-0088-18T4

                                       13

identification does not directly identify the defendant but rather begins an


investigative chain that leads to the defendant." Id. at 520. The Court concluded


"the DNA-tolling exception applies only when the State obtains DNA evidence


that directly matches the defendant to physical evidence of a crime," and held


that "[b]ecause the DNA identifications at issue in these cases did not directly


link defendants to the relevant offenses," the dismissal of the indictments in both


underlying cases should be affirmed. Ibid.


      The facts and legal issues analyzed in Twiggs are distinguishable from


those presented in this appeal.      Moreover, defendant's argument relies on


Twiggs' dicta, not its holding. Before reaching its conclusion, the Twiggs' Court


cited to legislative history:


             In 2002, the Senate and General Assembly amended

             N.J.S.A. 2C:1–6 to include the DNA exception. L.

             2001, c. 308, § 1(c) (effective Jan. 3, 2002). During its

             drafting phase, the initial bill used the phrases "the

             person who commits a crime" and "the person who

             committed the crime" instead of "the actor." S. 1516/A.

             2658 (2000). The Sponsors' Statement accompanying

             that draft stated: "[t]his bill would remove the time

             limitations on the prosecution of crimes when the

             person who committed the crime is unknown at the

             time, but DNA evidence collected at the crime scene

             can be used to identify the person at a later date."

             Sponsors' Statement to S. 1516 (Sept. 14, 2000);

             Sponsors' Statement to A. 2658 (June 29, 2000). The

             Legislature noted the purpose behind the criminal

             statutes of limitations is "to protect defendants from the


                                                                           A-0088-18T4

                                        14

            use of 'stale' evidence against them," but pointedly

            distinguished "properly collected[,] . . . handled and

            stored" DNA evidence because it "can reliably identify

            defendants many years after a crime has been

            committed." Ibid.


            The final-adopted bill's Sponsors' Statement provides

            that the DNA exception "would toll the applicable

            statute of limitations for the commission of a crime in

            certain cases until the State is in possession of DNA

            evidence taken from the suspect." Sponsors' Statement

            to S. 1516 (Jan. 3, 2002) (emphasis added). In the final

            bill's legislative fiscal analysis, the Legislature further

            explained: "[p]resently, certain guilty persons may

            avoid standing trial in cases where DNA . . . evidence

            is received that would establish their identities after the

            statute of limitations for a particular crime has

            expired." Legis. Fiscal Estimate to S. 1516 (Jan. 22,

            2002) (emphasis added).


            [Twiggs,  233 N.J. at 536-37).]


      Defendant cites this legislative history in support of his argument that


"possession of the relevant forensic evidence is what triggers the running of the


statute, not the State's later proper matching of that evidence."         However,


defendant's position ignores the remainder of the sentence which points out that


the evidence must be sufficient to establish a suspect's identity. See, e.g., Legis.


Fiscal Estimate to S. 1516 (Jan. 22, 2002) ("Presently, certain guilty persons


may avoid standing trial in cases where DNA . . . evidence is received that would





                                                                            A-0088-18T4

                                        15

establish their identities after the statute of limitations for a particular crime has


expired)." (emphasis added).


      Saliently, a plain reading of the statute itself also shows that the emphasis


is not on when the State gained possession of the samples, but when the State


obtained the data necessary for the State to establish the identification of this


defendant to the specimen that it had in its possession.  N.J.S.A. 2C:1-6(c)


("[T]ime does not start to run until the State is in possession of both the physical


evidence and the DNA or fingerprint evidence necessary to establish the


identification of the actor by means of comparison to the physical evidence.")


(emphasis added). Based upon the plain language of  N.J.S.A. 2C:1-6(c), we


conclude the trial court correctly determined the statute of limitations did not


begin to run until the State matched Specimen 12A to defendant's DNA sample


on August 17, 2016.


      We also reject defendant's claim that he was prejudiced by being


prosecuted beyond the statute of limitations period. In criminal cases, the statute


of limitations serves as an absolute bar to prosecution of the crime or offense.


State v. Short,  131 N.J. 47, 55 (1993). The purpose of the absolute bar is "to


protect a defendant 'from being put to his defense after memories have faded,


witnesses have died or disappeared, and evidence has been lost.'" State v. Jones,



                                                                              A-0088-18T4

                                         16

445 N.J. Super. 555, 566 (App. Div. 2016), aff'd,  233 N.J. 513 (2018) (quoting


Chase Sec. Corp. v. Donaldson,  325 U.S. 304, 314 (1945)). "Our law recognizes


a criminal defendant's right 'to a prompt prosecution,' stemming from the


potential prejudice likely to result 'when the basic facts have become obscured


by time.'" Twiggs,  233 N.J. at 533 (quoting State v. Diorio,  216 N.J. 598, 612


(2014)). Therefore, any exception to the general statute of limitations rule must


be construed narrowly. See In re Expungement Application of P.A.F.,  176 N.J.

 218, 223 (2003) (stating exceptions to general rules "are to be construed


narrowly").


      Our Supreme Court and Legislature have both underscored the importance


of protecting defendants from the use of stale evidence against them. See, e.g.,


Twiggs,  233 N.J. at 539 ("Outside of the limitations period, a defendant faces a


diminished ability to find alibi witnesses and evidence to defend against basic


facts [that] have become obscured by time.") (internal citation omitted);


Sponsors' Statement to S. 1516 (Mar. 9, 2001) ("The traditional rationale for


these statutes is to protect defendants from the use of 'stale' evidence against


them."). However, DNA has been widely acknowledged as uniquely reliable


evidence that does not become stale. See, e.g., Twiggs,  233 N.J. at 539 ("Unlike


other forms of evidence, DNA evidence can never become stale."); Sponsors'



                                                                         A-0088-18T4

                                       17 Statement to S. 1516 (Mar. 9, 2001) ("DNA evidence . . . can reliably identify


defendants many years after a crime has been committed.")


      While the backlog and delays in processing the DNA samples in this case


occurred over the course of several years, this type of delay was expressly


contemplated by the legislative sponsors of N.J.S.A. 2C:1-6(c):


            The number of DNA profiles of criminals and suspects

            stored in state and federal DNA databanks is growing

            rapidly. This increase has overwhelmed crime labs and

            caused significant backlogs in the analysis of DNA

            evidence. This has resulted in cases where prosecuting

            authorities have matched DNA evidence with a DNA

            profile, but have been barred from bringing charges

            against the suspect on the grounds that the statute of

            limitation[s] on the crime has expired. Under the bill,

            authorities would not be barred from prosecuting such

            crimes in this State.


            [(Sponsors' Statement to S. 1516 (Mar. 9, 2001).]


      Further, as the trial court poignantly noted in its supplemental reasoning


in denying defendant's motion to dismiss:


            And I find that in this case under these particular

            specific facts, I find that the time did not toll as no

            comparison was made until the New Jersey State Police

            protocols and guidelines were changed in 2015 to

            mirror the National DNA Index System.


                  ....


            The rules changed as [the] science change[d]. I note

            that science is forever changing and improving its


                                                                        A-0088-18T4

                                      18

            ability to identify potential assailants. It would appear

            that this comment that followed in the Criminal Code

            foresaw the abilities of science, and science changing.


      Here, the State laboratory was in possession of both pieces of DNA


evidence in 2004, but the data entered into CODIS was insufficient to generate


a match until the exclusionary data was entered in 2016. The intervening change


in procedure that precipitated the match between defendant's DNA and


Specimen 12A served to enhance the reliability of the evidence against


defendant. And, in the matter under review, the passage of time did not force


defendant to defend himself against stale evidence because the prosecution's


case was based almost entirely on DNA evidence. We find no error in the trial


court's conclusion that defendant's prosecution was not time-barred.


                                      III.


      Finally, we address defendant's argument that the sentence imposed by the


trial court was manifestly excessive.        Defendant also contends the court


erroneously rejected mitigating factor one,  N.J.S.A. 2C:44-1(b)(1) (defendant's


conduct neither caused nor threatened serious harm), and mitigating factor two,


 N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate his conduct would cause


or threaten serious harm).





                                                                        A-0088-18T4

                                      19

      We review the trial court's sentencing decision under an abuse of


discretion standard. State v. Jones,  232 N.J. 308, 318 (2018). In doing so, we


consider whether: "(1) the sentencing guidelines were violated; (2) the findings


of aggravating and mitigating factors were . . . 'based upon competent credible


evidence in the record'; [and] (3) 'the application of the guidelines to the facts'


of the case 'shock[s] the judicial conscience.'" State v. Bolvito,  217 N.J. 221,


228 (2014) (third alteration in the original) (quoting State v. Roth,  95 N.J. 334,


364-65 (1984)).


      A court imposing sentences for multiple offenses must bear in mind that


"'though a defendant's conduct may have constituted multiple offenses, the


sentencing phase concerns the disposition of a single, not a multiple, human


being.'" State v. Yarbough,  100 N.J. 627, 646 (1985) (quoting State v. Cloutier,


 286 Or. 579, 591 (1979)). Therefore, when crafting a consecutive sentence, the


sentencing court should make "an overall evaluation of the punishment for the


several offenses involved."      Yarbough,  100 N.J. at 646 (citing State v.


Rodriguez,  97 N.J. 263, 274 (1984)).


      To do so, a court examines criteria such as whether: (1) "the crimes and


their objectives were predominantly independent of each other;" (2) "whether


the crimes were committed at different times or separate places, rather than



                                                                           A-0088-18T4

                                       20

being committed so closely in time and place as to indicate a single period of


aberrant behavior;" (3) "any of the crimes involved multiple victims;" and, (4)


"the convictions for which the sentences are to be imposed are numerous."


Yarbough,  100 N.J. at 644. Because a trial court's imposition of a consecutive


or concurrent sentence is discretionary, an appellate court reviews such a


decision for abuse of discretion. State v. Spivey,  179 N.J. 229, 245 (2014).


      Here, the sentencing court carefully considered the sentence it crafted


after reviewing defendant's prior criminal history and the presentence report.


While defendant argues the sentencing court inappropriately excised the word


"serious" from mitigating factors one and two, the record shows that the court


considered the seriousness of defendant's actions:


            In looking at the mitigating factors, looking at number

            [one], it says the defendant's conduct neither caused nor

            threatened serious harm. Committing an act of sexual

            contact upon someone and entering a dwelling without

            permission certainly does cause harm or the threat of

            harm, so I do not find number [one].


            Number [two] talks about the defendant did not

            contemplate his conduct would cause or threaten

            serious harm. Well, when you enter someone's home,

            criminal trespass without permission, and you commit

            an act of sexual contact with them, you have to

            contemplate that's going to cause some type of harm.


            And when I consider the facts of the case and the

            struggle that ensued to complete this sexual contact


                                                                        A-0088-18T4

                                      21

            which the jury has found [defendant] guilty of, I do find

            that number [two] is not applicable.


      Having reviewed the record, we reject defendant's argument that the court


erred in not finding mitigating factors one and two were applicable.         The


sentencing court also engaged in an appropriate Yarbough analysis and aptly


concluded "that the crime of a criminal sexual contact has absolutely no bearing


on a crime of criminal trespass. The criminal trespass is complete once you


enter that dwelling without a license or permission to be in there or a privilege


to be in there." We agree with the sentencing court's conclusion that the crimes


committed here were "predominately independent of each other."


      The sentencing court provided a statement of reasons supporting its


sentencing decision, the sentence is based on competent credible evidence in the


record, the Yarbough factors were applied, and the sentence does not shock the


judicial conscience.    The court applied the aggravating factors and one


mitigating factor and followed the appropriate sentencing guidelines. State v.


Bieniek,  200 N.J. 601, 608 (2010) (quoting Roth,  95 N.J. at 364-65).


      Affirmed.





                                                                         A-0088-18T4

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