10-15-07* A-6180-04T4
Under N.J.S.A. 2C:35-7.1, the crime of possession of a
CDS with the intent to distribute is elevated from a thirddegree
crime to a second-degree crime if the offense is
committed within 500 feet of a public building. In this
opinion, we conclude that a museum qualifies as a public
building even if it does not maintain regular hours and is only
open to the public upon request.(*Approved for Publication date)
Monday, October 22, 2007
State v. Jeffrey Bendix
10-11-07 A-6508-05T3
We concluded that the trial court took too restrictive a
view of the court's discretion, under N.J.S.A. 2C:35-16a, to
grant defendant a hardship exception from the requirement that
his driver's license be suspended due to his conviction for drug
offenses. In remanding for a new hearing on the exception
issue, we provided guidance as to the proper procedures for
conducting the hearing. Defense counsel should present his
client's application through formal witness testimony, and the
State's opposition should likewise be presented through
testimony rather than representations of counsel. (*Approved for
Publication date)
We concluded that the trial court took too restrictive a
view of the court's discretion, under N.J.S.A. 2C:35-16a, to
grant defendant a hardship exception from the requirement that
his driver's license be suspended due to his conviction for drug
offenses. In remanding for a new hearing on the exception
issue, we provided guidance as to the proper procedures for
conducting the hearing. Defense counsel should present his
client's application through formal witness testimony, and the
State's opposition should likewise be presented through
testimony rather than representations of counsel. (*Approved for
Publication date)
State v. Eric Rowland
10-11-07 A-4383-06T5
The Contractors' Registration Act, N.J.S.A. 56:8-136 to -
152, includes provisions under which knowingly engaging in the
business of making or selling home improvements without having
registered with the Division of Consumer Affairs is a fourth
degree crime. Although the Act states that "a person who
knowingly violates any of the provisions of this act is guilty
of a crime of the fourth degree," the underlined phrase does not
mean that the State must prove defendant knew about the Act and
its provisions. In short, when used in a statute, the
underlined phrase does not make knowledge of the law an element
of the crime.
The Contractors' Registration Act, N.J.S.A. 56:8-136 to -
152, includes provisions under which knowingly engaging in the
business of making or selling home improvements without having
registered with the Division of Consumer Affairs is a fourth
degree crime. Although the Act states that "a person who
knowingly violates any of the provisions of this act is guilty
of a crime of the fourth degree," the underlined phrase does not
mean that the State must prove defendant knew about the Act and
its provisions. In short, when used in a statute, the
underlined phrase does not make knowledge of the law an element
of the crime.
State v. Kevin Johnson
10-11-07 A-4544-05T4
In this appeal we examine the consequences of a sentencing
court's failure to notify a defendant of his right to appeal
within forty-five days, when the sentence was imposed prior to
the New Jersey Supreme Court's opinion in State v. Molina, 187
N.J. 531 (2006). In Molina, the Court made prospective its
holding that such a defendant had five years from the date of
sentencing to move for leave to appeal as within time.
In this appeal we examine the consequences of a sentencing
court's failure to notify a defendant of his right to appeal
within forty-five days, when the sentence was imposed prior to
the New Jersey Supreme Court's opinion in State v. Molina, 187
N.J. 531 (2006). In Molina, the Court made prospective its
holding that such a defendant had five years from the date of
sentencing to move for leave to appeal as within time.
State v. David L. Moon, a/k/a David L.
10-09-07
This case requires us to consider the elements of
endangering an injured victim, N.J.S.A. 2C:12-1.2b(2). We
conclude that the crime does not apply to a person who abandons
a corpse.
This case requires us to consider the elements of
endangering an injured victim, N.J.S.A. 2C:12-1.2b(2). We
conclude that the crime does not apply to a person who abandons
a corpse.
Thursday, October 04, 2007
State v. Altariq Laboo
09-28-07 A-3746-06T5
Three individuals committed a string of armed robberies
over the course of a one-hour period, taking items that included
two cell phones. Approximately thirty hours after the last
robbery, police used a tracking device to track one of the
stolen cell phones to a three-family home located in a highcrime
area. Three officers entered the building and used a
handheld tracking device to determine the exact apartment. An
officer knocked on the apartment door and announced that he was
a police officer. The officer then heard a young female yelling
and a man's voice saying "shut up, shut up, 5-0," and scurrying
inside the apartment. Without obtaining a warrant, the officers
forcibly entered the apartment, wherein they found evidence from
the robberies.
We reversed the law division's order suppressing the
evidence. The search was justified because the exigent
circumstances, although police-created, arose as a result of
reasonable investigative conduct. We held that the police were
not required to procure a warrant because a delay presented a
real potential danger to the officers and public, under the
circumstances.
Three individuals committed a string of armed robberies
over the course of a one-hour period, taking items that included
two cell phones. Approximately thirty hours after the last
robbery, police used a tracking device to track one of the
stolen cell phones to a three-family home located in a highcrime
area. Three officers entered the building and used a
handheld tracking device to determine the exact apartment. An
officer knocked on the apartment door and announced that he was
a police officer. The officer then heard a young female yelling
and a man's voice saying "shut up, shut up, 5-0," and scurrying
inside the apartment. Without obtaining a warrant, the officers
forcibly entered the apartment, wherein they found evidence from
the robberies.
We reversed the law division's order suppressing the
evidence. The search was justified because the exigent
circumstances, although police-created, arose as a result of
reasonable investigative conduct. We held that the police were
not required to procure a warrant because a delay presented a
real potential danger to the officers and public, under the
circumstances.
State v. Jason G. Meyer
9-19-07 (A-122-05/A-43-06)
“Special probation” under N.J.S.A. 2C:35-14 is a type of
disposition for certain non-violent drug offenders, but it is
not the exclusive route to admission into Drug Court.
Consistent with the Drug Court Manual and the general sentencing
provisions of the Code of Criminal Justice, N.J.S.A. 2C:45-1, a
trial court has discretion to admit non-violent drug-dependent
offenders into Drug Court.
“Special probation” under N.J.S.A. 2C:35-14 is a type of
disposition for certain non-violent drug offenders, but it is
not the exclusive route to admission into Drug Court.
Consistent with the Drug Court Manual and the general sentencing
provisions of the Code of Criminal Justice, N.J.S.A. 2C:45-1, a
trial court has discretion to admit non-violent drug-dependent
offenders into Drug Court.
State v. Wayne DeAngelo
09-13-07 A-4229-05T3
The focus of this appeal is the enforceability of a
municipal ordinance that prevents the display of a large balloon
in the shape of a rat during a labor dispute. We hold that the
ordinance, which does not affect the parties' rights in the
labor dispute, is not preempted by the National Labor Relations
Act (NLRA), 29 U.S.C.A. § 151-69, nor does it abridge any
party's freedom of expression. The ordinance is not void for
vagueness. It is content-neutral and the record does not
support a claim that it was selectively inferred.
Judge Sabatino dissents in part. He perceives a lack of
content neutrality in the ordinance because it allows balloon
grand opening signs.
The focus of this appeal is the enforceability of a
municipal ordinance that prevents the display of a large balloon
in the shape of a rat during a labor dispute. We hold that the
ordinance, which does not affect the parties' rights in the
labor dispute, is not preempted by the National Labor Relations
Act (NLRA), 29 U.S.C.A. § 151-69, nor does it abridge any
party's freedom of expression. The ordinance is not void for
vagueness. It is content-neutral and the record does not
support a claim that it was selectively inferred.
Judge Sabatino dissents in part. He perceives a lack of
content neutrality in the ordinance because it allows balloon
grand opening signs.
State v. John L. Nyhammer
09-06-07 A-5672-04T4
We reverse a conviction for aggravated sexual assault on a
girl, then nine years old, concluding that each of two rulings
constituted reversible error. First, the judge should not have
admitted defendant's confession. An investigator called
defendant and explained that he was conducting an investigation
against another man in connection with the abuse of another
child as well as the victim in this case. The investigator did
not indicate to defendant that the victim in this case had made
allegations of abuse by defendants. Defendant went to the
police station. The investigator gave defendant the Miranda
warnings. After defendant gave a formal statement regarding the
incident of abuse by the other man, the investigator told him
that the victim had made accusations against defendant as well.
Defendant became distraught. Miranda warnings were not given a
second time. Defendant confessed. We conclude that defendant
did not make a knowing and voluntary waiver of his right to
remain silent. Therefore, his confession was inadmissible.
Second, we conclude that the victim's hearsay videotape,
which was the sole substantive evidence proving defendant's
conduct, should have been excluded from evidence, pursuant to
the Confrontation Clause. The videotaped statement was
"testimonial," there was no prior opportunity for defendant to
cross-examine the victim, and there was no opportunity for an
adequate and meaningful cross-examination at trial because the
victim was unresponsive to many questions. At trial, she did
not recollect questions going to the heart of the charges.
Therefore, the videotape was the sole substantive evidence at
trial.
We reverse a conviction for aggravated sexual assault on a
girl, then nine years old, concluding that each of two rulings
constituted reversible error. First, the judge should not have
admitted defendant's confession. An investigator called
defendant and explained that he was conducting an investigation
against another man in connection with the abuse of another
child as well as the victim in this case. The investigator did
not indicate to defendant that the victim in this case had made
allegations of abuse by defendants. Defendant went to the
police station. The investigator gave defendant the Miranda
warnings. After defendant gave a formal statement regarding the
incident of abuse by the other man, the investigator told him
that the victim had made accusations against defendant as well.
Defendant became distraught. Miranda warnings were not given a
second time. Defendant confessed. We conclude that defendant
did not make a knowing and voluntary waiver of his right to
remain silent. Therefore, his confession was inadmissible.
Second, we conclude that the victim's hearsay videotape,
which was the sole substantive evidence proving defendant's
conduct, should have been excluded from evidence, pursuant to
the Confrontation Clause. The videotaped statement was
"testimonial," there was no prior opportunity for defendant to
cross-examine the victim, and there was no opportunity for an
adequate and meaningful cross-examination at trial because the
victim was unresponsive to many questions. At trial, she did
not recollect questions going to the heart of the charges.
Therefore, the videotape was the sole substantive evidence at
trial.
State vs. Ahmet S. Kotsev
08-31-07 A-3256-05T5
1. N.J.S.A. 39:4-50 mandates a minimum of ninety consecutive
days incarceration for a third or subsequent conviction for
driving while intoxicated (DWI). Sheriff's Labor Assistance
Programs (SLAP) and weekend service are not substitute
sentencing options for third or subsequent offenders.
2. The 1993 statute mandated a third or subsequent offender to
serve 180 days incarceration "except that the court may lower
such term for each day, not exceeding ninety days, served
performing community service." No other options are available.
3. The 2004 amendment to N.J.S.A. 39:4-50, commonly referred
to as Michael's Law, similarly mandates 180 days incarceration
but allows a reduction of one day for each day, not exceeding
ninety days, in an inpatient rehabilitation program.
In other words, a third or subsequent DWI conviction
requires a defendant to serve a minimum of ninety consecutive
days of incarceration.(*Approved for Publication date)
1. N.J.S.A. 39:4-50 mandates a minimum of ninety consecutive
days incarceration for a third or subsequent conviction for
driving while intoxicated (DWI). Sheriff's Labor Assistance
Programs (SLAP) and weekend service are not substitute
sentencing options for third or subsequent offenders.
2. The 1993 statute mandated a third or subsequent offender to
serve 180 days incarceration "except that the court may lower
such term for each day, not exceeding ninety days, served
performing community service." No other options are available.
3. The 2004 amendment to N.J.S.A. 39:4-50, commonly referred
to as Michael's Law, similarly mandates 180 days incarceration
but allows a reduction of one day for each day, not exceeding
ninety days, in an inpatient rehabilitation program.
In other words, a third or subsequent DWI conviction
requires a defendant to serve a minimum of ninety consecutive
days of incarceration.(*Approved for Publication date)
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