STATE OF NEW JERSEY VS. STEVEN R. FORTIN (95-09-1197,

STATE OF NEW JERSEY VS. STEVEN R. FORTIN (95-09-1197, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-5929-17T2)
Defendant Steven R. Fortin, whom juries twice convicted of a brutal 1994 sexual assault and murder, appeals from the denial of his motion for a new trial based on newly discovered scientific evidence that casts doubt on the reliability and scientific validity of bitemark identification. After a review of the change in this forensic area since defendant's most recent murder conviction in 2007, and in light of defendant's conviction for a subsequent brutal sexual attack involving similar bitemarks and the 2007 trial testimony questioning expert bitemark testimony, the court affirms.

State v. Carey R. Greene; State v. Tyleek A. Lewis (082536) (Burlington County and Statewide) (A-96-18; 082536)

State v. Carey R. Greene; State v. Tyleek A. Lewis (082536) (Burlington County and Statewide) (A-96-18; 082536)

The prosecutor’s detailed account of Greene’s incriminating statement to his grandmother was not likely forgotten by the jury, despite the trial court’s best efforts in providing a curative instruction. That the prosecutor acted in good faith, moreover, did not abate the damage done to Greene’s ability to receive a fair trial, particularly because the evidence against him was not overwhelming and the prosecutor’s opening had the capacity to tip the scales in favor of a conviction. The Court therefore affirms the judgment of the Appellate Division ordering a new trial for Greene

Telephonic Tro app should have been preserved as evidence after criminal charge STATE v. J.L.,

Telephonic Tro app should have been preserved as evidence after criminal charge STATE 

v. J.L.,
Defendant-Appellant. ___________________________

Submitted April 1, 2020 – Decided June 5, 2020
Before Judges Whipple and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 17-06- 0843.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2859-18T4

Defendant J.L. appeals from a January 4, 2019 judgment of conviction. Defendant pled guilty to N.J.S.A. 2C:39-7(b)(1), second-degree certain persons not to have weapons, after his motion to suppress evidence was denied by the trial court. He was sentenced to a five-year term with a mandatory five- year parole bar. He raises the following arguments on appeal.
POINT I
THE COURT'S CONCLUSION THAT THE WARRANT WAS OBTAINED FOLLOWING THE CORRECT PROCEDURES WAS ERRONEOUS, AND BECAUSE THE WARRANT WAS FUNDAMENTALLY INVALID, THE SEARCH WAS WARRANTLESS, AND SUPPRESSION SHOULD HAVE BEEN GRANTED.
POINT II
THE WARRANT WAS ISSUED WITHOUT PROBABLE CAUSE AS REQUIRED BY THE FOURTH AMENDMENT AND ARTICLE [ONE] PARAGRAPH [SEVEN] OF THE NEW JERSEY CONSTITUTION.
We agree with defendant's first argument and reverse.
We discern the following facts and procedural history from the court
record. On March 12, 2017, defendant's wife, E.L.,1 sought and telephonically obtained a Temporary Restraining Order (TRO) pursuant to the Prevention of

1alleged victim of domestic violence.

We use initials pursuant to Rule 1:38-3(c)(12) to protect the identity of an

2

A-2859-18T4

Domestic Violence Act2 (PDVA) from a Toms River Municipal Court judge because of an incident that occurred in the home.
The telephonic application was recorded, as is required under Rule 5:7A(b).3 However, the recording was destroyed after ninety days by the Tom's River Police Department, consistent with its records retention policy. While there is no written or recorded memorialization of it in the record before us, the State asserts that the application for the TRO was conducted in the presence of a Toms River police officer, that E.L. was administered an oath, and the municipal court judge took testimony about current and previous acts of domestic violence by defendant. The municipal court judge then issued the TRO, along with a warrant to search for and to seize weapons for safekeeping pursuant to Rule 5:7A and N.J.S.A. 2C:25-28(j). The warrant allowed officers to seize the following weapons and ammunition: a Smith & Wesson .357
2
3

N.J.S.A. 2C:25-17 to -35.

Under Rule 5:7A(b), a TRO issued telephonically "shall" be "contemporaneously record[ed]" electronically or, where electronic recording is not available, by the judge's longhand notes summarizing what is said. The applicant must be sworn, identify themselves, specify the purpose of the request, and disclose the basis of the application. Ibid. This sworn testimony is deemed to be an affidavit for the purpose of issuing the TRO, and serves as the basis for the judge's finding of exigent circumstances sufficient to excuse the failure of the applicant to appear personally, as well as whether sufficient grounds have been shown to grant the TRO. Ibid.

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Magnum, hollow-point bullets, and three shotguns. When officers arrived at defendant's home, they served him with the TRO and executed the search warrant, finding the weapons and ammunition enumerated in the warrant. The next day, defendant was served with a complaint warrant charging one count of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1).
A Grand Jury indicted defendant eighty-one days later, on June 7, 2017, charging fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39- 3(f), and four counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1). Defendant's counsel wrote to the Toms River Municipal Court on October 17, 2017, to request the electronically-recorded testimony or the judge's longhand notes pursuant to Rule 5:7A(b). However, the recording of the proceeding had been destroyed, no affidavit was filed with the warrant, and no longhand notes were taken.
Defendant moved to suppress the evidence retrieved from the search, arguing that without the availability of the telephonic record, the search warrant did not comply with procedural requirements of Rules 5:7A(b) and 3:5-3(b)4 and could not be considered valid.
4 Rule 3:5-3 allows for the issuance of a search warrant upon the sworn oral testimony of an applicant who is not physically present. The procedure

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The motion judge disagreed, finding:
I do not find that the failure to preserve the recording of the telephonic proceedings before [the municipal court judge] . . . affords the defendant the remedy or relief that it seeks. I do not find that this is a deliberate destruction. I do not find it driven by bad faith . . . . And the fact that it was not around after that period of time I do not think is the result of any type of police misconduct or State misconduct. As pointed out . . . the defendant had knowledge of the existence of it, that there was the restraining order hearing itself, and that the indictment was handed down well in advance of the request for this particular piece of evidence. So I do not find that the fact that the recording was not made available or maintained is critical, certainly did not afford the remedy to the defendant that he believes should be available to him.
On November 13, 2018, defendant pled guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1). This appeal followed.
"Appellate courts reviewing a grant or denial of a motion to suppress must defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J.
(continued)
mirrors Rule 5:7A(b) in that the applicant must be sworn, identify themselves, specify the purpose of the request, and disclose the basis of their information, which is deemed to be an affidavit for the purposes of issuing the search warrant. R. 3:5-3. Like Rule 5:7A(b), the sworn oral testimony "shall" be recorded electronically or by "adequate longhand notes summarizing what is said." R. 3:5-3.

5

A-2859-18T4

249, 262, (2015) (citations omitted). We do not, however, defer to the trial court's legal conclusions, which we review de novo. Id. at 263 (citing State v. Gandhi, 201 N.J. 161, 176, (2010)).
When a search warrant is issued under N.J.S.A. 2C:25-28(j), the police are authorized to search for and seize weapons. In State v. Hemenway, the Supreme Court stated that
before issuing a warrant to search for weapons under the [PDVA], a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is "necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought[]"; and (3) probable cause to believe that the weapons are located in the place to be searched.
[239 N.J. 111, 117, (2019) (quoting N.J.S.A. 2C:25- 28(f)).]
In State v. Cassidy, the New Jersey Supreme Court determined that a warrant included in a TRO was invalid because the issuing judge who spoke to the domestic violence complainant by telephone did not swear her in, nor did he record his conversations with her or the officer who took the complaint. 179 N.J. 150, 155, 164 (2004), abrogated on other grounds by State v. Edmonds, 179 N.J. 117 (2012). The Court noted "the procedural requirements for a telephonic search warrant are fundamental to the substantive validity of

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the warrant," and a telephonic authorization will only be deemed the "functional equivalent of a written warrant" when "all of the procedural safeguards . . . to assure the underlying reliability of the judge's decision to authorize the search have been met." Id. at 158. Given the principle the Court adheres to that views "searches and seizures inside a home without a warrant a[s] presumptively unreasonable," it is imperative that "[t]he record of the ex parte proceeding . . . disclose a proper basis" for the TRO and attached warrant. Id. at 164 (alteration in original) (citation omitted). Cognizant of the principles enunciated in Hemenway and Cassidy, we turn to the motion court's analysis herein.
Here, the motion judge found no bad faith on the part of the State in connection with the destruction of the testimony recording in support of the search warrant. And, we do note that "[w]ithout bad faith on the part of the State, 'failure to preserve potentially useful evidence does not constitute a denial of due process of law.'" George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div. 2006) (quoting Arizona v. Youngblood, 488 U.S. 51, 57 (1988)); see also State v. Marshall, 123 N.J. 1, 109-10 (1991) (applying Youngblood's bad faith standard); State v. Mustaro, 411 N.J. Super. 91, 103 (App. Div. 2009). However, the judge did not address the State's obligation to

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preserve evidence consistent with the strictures of the Fourth Amendment in cases it prosecutes criminally, nor did he consider the prejudice to defendant of the destroyed evidence.
When evidence has been destroyed, the court must focus on "(1) whether there was bad faith or connivance on the part of the government, (2) whether the evidence . . . was sufficiently material to the defense, [and] (3) whether [the] defendant was prejudiced by the loss or destruction of the evidence." State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.) (citations omitted). "In the absence of bad faith, relief should be granted to a defendant only where there is a 'showing of manifest prejudice or harm' arising from the failure to preserve evidence." State v Dreher, 302 N.J. Super. 408, 489 (App. Div. 1994), abrogated on other grounds by State v. Brown, 170 N.J. 138 (2001) (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484 (App. Div. 1985)).
Here, the manifest prejudice or harm arose from the destruction of evidence by the Toms River Police Department, presumptively just three days after defendant was indicted. Although not explicitly stated, the motion judge's finding that the State acted "without bad faith" is apparently drawn from the Toms River Police Department's ninety-day retention policy.

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A-2859-18T4

However, the Toms River Police Department's retention policy is not a valid measure of the State's good faith obligation to preserve evidence it controls in a criminal prosecution. While the matter began as a domestic violence case, the moment the State chose to bring criminal charges against defendant as a result of a search warrant generated under the PDVA, its obligation to preserve evidence arose.5
In New Jersey, an accused has a right to broad discovery after the return of an indictment in a criminal case. R. 3:13-3(b); State v. Scoles, 214 N.J. 236, 252 (2013); State v. Hernandez, 225 N.J. 451, 461 (2016). Without any record of the telephonic TRO application to review, we do not have a sufficient factual basis by which to determine whether the municipal court judge properly issued the search warrant. Defendant cannot be faulted for not requesting the recording before its destruction when he was indicted a mere
5

In March 2010, the New Jersey Attorney General issued guidelines for retaining evidence in criminal cases that required each county prosecutor's office to develop and follow its own evidence destruction authorization policy and procedures, which include procedures to be followed regarding both evidence held by the county prosecutor's office as well as evidence held by local law enforcement agencies within its jurisdiction. N.J. Attorney Gen. Dep't of Law and Pub. Safety and the N.J. Prosecutor's Ass'n, Attorney Gen. Guidelines for the Retention of Evidence (March 2010), https://www.nj.gov/oag/dcj/agguide/directives/2010-1evidence-retention.pdf.

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A-2859-18T4

three days before the expiration of the ninety-day retention period, notwithstanding the fact that he was served with a complaint-warrant three months earlier. See R. 3:13-3(b)6.
Reversed and judgment of conviction vacated.

6available to the defendant "upon the return or unsealing of the indictment."

Rule 3:13-3(b)(1) provides that the prosecutor's discovery is to be made

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A-2859-18T4

STATE OF NEW JERSEY VS. MICHELLE PADEN- BATTLE (15-03-0584, ESSEX COUNTY AND STATEWIDE) (A-1320-17T2)

STATE OF NEW JERSEY VS. MICHELLE PADEN- BATTLE (15-03-0584, ESSEX COUNTY AND STATEWIDE) (A-1320-17T2)

Defendant was convicted of first-degree kidnapping, conspiracy to kidnap,and felony murder, and sentenced to a sixty-year prison term. In her appeal, defendant raised numerous issues regarding her convictions as well as the sentence imposed.

The court first agreed that the jury's verdict could only be understood as supporting a conviction of second-degree kidnapping, not first-degree kidnapping for which she was sentenced, because the jury was not asked to determine whether defendant "release[d] the victim unharmed and in a safe place prior to apprehension."N.J.S.A. 2C:13-1(c)(1). The court, however, rejected defendant's argument that a new trial was required, holding instead, in accord with State v. Casilla, 362 N.J. Super. 554 (App. Div. 2003), that the verdict simply had to be molded to reflect a conviction of second-degree kidnapping.

Second, while the molding of the kidnapping conviction required resentencing, the court also mandated resentencing – and before a different judge – because the judge based the sentence on his declaration, based on his own understanding of the evidence, that defendant "ordered [the victim's] execution" even though the jury acquitted defendant of both first-degree murder and conspiracy to commit murder. The court held that, while federal constitutional principles may permit an enhancement of a sentence based on conduct for which the defendant was acquitted, see United States v. Watts, 519 U.S. 148 (1997), New Jersey constitutional principles do not. Because an acquittal means the State failed to overcome the accused's presumption of innocence – leaving the accused's innocence "established," State v. Hill, 199 N.J. 545, 559 (2009) – the sentencing judge here violated defendant's due process rights and her right to trial by jury by disregarding the jury's acquittal verdict and enhancing the sentence because of his personal own view of the evidence.

STATE OF NEW JERSEY VS. ALEXANDER A. ANDREWS (17-09-1005, MIDDLESEX COUNTY AND STATEWIDE) (A-1348-19T1)

STATE OF NEW JERSEY VS. ALEXANDER A. ANDREWS (17-09-1005, MIDDLESEX COUNTY AND STATEWIDE) (A-1348-19T1)

This appeal requires the court to determine whether the assignment judge correctly granted defendant's motion to overrule the State's rejection of his petition for a Graves Act waiver pursuant to N.J.S.A. 2C:43-6.2, "which embodies the so called 'escape valve' to the mandatory sentence requirements otherwise embodied in the Graves Act," N.J.S.A. 2C:43-6(c). State v. Alvarez, 246 N.J. Super. 137, 139 (App. Div. 1991). In granting defendant's application, the assignment judge concluded that based on the disparity in the prosecutor's treatment of similarly situated defendants and the discrepancy in the State's assessment of defendant's criminal record, defendant demonstrated "'arbitrariness constituting an unconstitutional discrimination or denial of equal protection' in the prosecutor's decision," State v. Benjamin, 228 N.J. 358, 372 (2017) (quoting Alvarez, 246 N.J. Super. at 148), that fell within the Alvarez proscription. The judge explained that while  Benjamin precluded defendants challenging the denial of a Graves Act waiver from obtaining discovery of prosecutorial decisions in cases other than their own, as the judge responsible for reviewing all waiver cases, he was in the best position to determine whether the Alvarez standard had been violated. The court affirms the judge's decision and rejects the State's challenge. The court is satisfied that the judge's robust review and analysis were sound, and fulfilled the role contemplated in Benjamin, to "ensure[] that prosecutorial discretion is not unchecked." 228 N.J. at 373.

STATE OF NEW JERSEY VS. ANDREW F. STOVEKEN STATE OF NEW JERSEY VS. GEORGE BEECHER (16-08-0130, 16-08-0129, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-1753-18T

STATE OF NEW JERSEY VS. ANDREW F. STOVEKEN STATE OF NEW JERSEY VS. GEORGE BEECHER (16-08-0130, 16-08-0129, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-1753-18T1/A-1985-18T1)

In these appeals, the court holds, as a matter of first impression, that a valid grand jury subpoena is sufficient to obtain prescription drug information maintained in New Jersey's Prescription Monitoring Program (PMP) when law enforcement personnel are investigating a prescriber.

State v. J.V. (082507) (Passaic County and Statewide) (A-95-18

State v. J.V. (082507) (Passaic County and Statewide) (A-95-18; 082507)

The language of Section 26.1 is plain and unambiguous. It became effective years after J.V. was waived to adult court. The Court concludes the Legislature intended the statute to apply prospectively to those juvenile waiver hearings conducted after the statute became effective. The statute does not apply to J.V.

State v. Antwan J. Horton (082698) (Union County and Statewide) (A-26-19;

State v. Antwan J. Horton (082698) (Union County and Statewide) (A-26-19; 082698)

Under settled law, juror substitution is impermissible if the jury has reached a partial verdict. The proper course is for the trial court to take the partial verdict and declare a mistrial on the open counts

State v. Jose Medina (081926)(Essex County and Statewide) (A-67-18

State v. Jose Medina (081926)(Essex County and Statewide) (A-67-18; 081926)

Viewing the trial record in its entirety, the detective’s testimony, in context, did not compel the inference that he had superior knowledge incriminating defendant from a non-testifying witness. The testimony therefore did not violate defendant’s confrontation right or the hearsay rule. Although there was no abuse of discretion in the admission of the testimony here, the Court cautions against using the phrase “based on the evidence collected” in this context and provides guidance as to curative instructions

STATE OF NEW JERSEY VS. SANDRO VARGAS (15-08-1756, ESSEX COUNTY AND STATEWIDE) (A-2152-17T1)

STATE OF NEW JERSEY VS. SANDRO VARGAS (15-08-1756, ESSEX COUNTY AND STATEWIDE) (A-2152-17T1)

In affirming defendant's conviction for murdering his former girlfriend, the court clarifies that evidence that satisfies a hearsay exception, such as defendant's prior threat to the victim, admissible as a statement of a party opponent, N.J.R.E. 803(b)(1), must also overcome the exclusion of other crimes, wrongs, and acts evidence under N.J.R.E. 404(b), as well as satisfy N.J.R.E. 403. The trial court mistakenly concluded that meeting the hearsay exception provided an independent basis for admitting the prior statement.Notwithstanding that mistake, the appellate court affirms the conviction, because the hearsay statement satisfied the Rule 404(b) test set forth in State v. Cofield, 127 N.J. 328, 338 (1992). In particular, its probative value as evidence of motive was not outweighed by its apparent prejudice.

STATE OF NEW JERSEY VS. ANDRES I. CHAVARRIA (18-10-0303 AND 18-10-0304, SUSSEX COUNTY AND STATEWIDE) (A-4473-18T3)

STATE OF NEW JERSEY VS. ANDRES I. CHAVARRIA (18-10-0303 AND 18-10-0304, SUSSEX COUNTY AND STATEWIDE) (A-4473-18T3)

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. Yarbough,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.

STATE OF NEW JERSEY VS. MARQUIS ARMSTRONG (15-05-0932, ESSEX COUNTY AND STATEWIDE) (A-2102-17T2)

STATE OF NEW JERSEY VS. MARQUIS ARMSTRONG (15-05-0932, ESSEX COUNTY AND STATEWIDE) (A-2102-17T2)

Defendant pled guilty during trial to aggravated manslaughter. The victim was the boyfriend of his former girlfriend and mother of his daughter. The State introduced text messages defendant sent to her shortly before the homicide, alleging they were threatening and demonstrated defendant's jealous nature. Defendant moved pretrial to suppress the messages seized from her cellphone. Although the State asserted that police obtained consent before searching the phone, it objected to any evidentiary hearing on the issue, arguing that defendant lacked a reasonable expectation of privacy in those text messages and the requisite standing to challenge the search. Without holding an evidentiary hearing, the judge agreed with the State and denied the motion.

The court affirms, concluding that defendant had no reasonable expectation of privacy in the text messages once they were sent and received on another's phone, and that defendant lacked standing to challenge the search because he had no "proprietary, possessory or participatory interest in either the place searched or the property seized." State v. Randolph, 228 N.J. 566, 571 (2017) (quoting State v. Alston, 88 N.J. 211, 228 (1981)).