Criminal Law- Recent Cases NJ Kenneth Vercammen Law Office. 732-572-0500 Edison, NJ: January 2022

STATE OF NEW JERSEY VS. DANIEL ROCHAT (13-07-1002, BERGEN COUNTY AND STATEWIDE) (A-0103-17)

This appeal presents an issue of first impression—whether DNA evidence obtained from extremely small amounts of DNA through a technique known as low copy number (LCN) DNA testing, and in one instance, by using a proprietary Forensic Statistical Tool (FST) software program, which defendant contends are not generally accepted in the relevant scientific community, was improperly admitted at trial.

Defendant was indicted for the murder of a woman he had recently visited, that worked at his father's business. Her partially burned body was found in her residence. She died from blunt force head injuries. As part of their investigation, detectives obtained DNA samples from defendant, his apartment, a condominium that he had access to, his car, and the victim's fingernails. Samples from the kitchen of the apartment tested positive for blood. The DNA samples were sent to a laboratory DNA analysis.

The trial court denied defendant's motion for a Frye1 hearing to determine the admissibility of the LCN DNA test results. At trial, the State's experts testified that DNA samples from the kitchen was consistent with the victim's DNA. Analysis of a second set of DNA samples showed a mixture of DNA from two people, one of whom was the victim. DNA samples from the victim's home did not test positive for defendant's DNA, but samples taken from the victim's fingernails did. Samples from defendant's apartment and car did not test positive for the victim's DNA. Defense experts opined that the LCN DNA testing and FST were neither reliable nor generally accepted in the relevant scientific community. Defendant was found guilty of the murder.

On appeal, the court remanded the case for a Frye hearing to determine the admissibility of the disputed DNA evidence under the standards adopted in State v. Harvey, 151 N.J. 117 (1997), and retained jurisdiction.

Following a multi-day Frye hearing, at which numerous expert witnesses testified, the trial court determined the State clearly established that the LCN DNA testing technique and FST were generally accepted in the relevant scientific community and ruled the DNA analysis was admissible.

The court rejected the trial courts determinations, concluding that the State did not clearly establish that the LCN DNA testing technique and FST were generally accepted in the relevant scientific community. Therefore, the DNA evidence derived by using that technique and software was inadmissible. Noting that the remaining evidence was not overwhelming and recognizing that DNA evidence is powerful and compelling, the court determined that admission of the disputed DNA evidence raised a reasonable doubt that the jury was led to a verdict it otherwise might not have reached. Because the error was not harmless, the court reversed defendant's conviction and remanded for retrial.

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1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Winter 2022 Municipal Court Law Review

1 Terroristic Threat statute unconstitutional where it criminalizes speech State v Fair

2. Car Passenger can’t be asked demanded for ID State v Boston

3. Second patdown permitted where belief armed State v Carrillo

4. 2019 Refusal statute not retroactive to arrests prior to 12/1/19 State v Scudieri

5. OPRA permits disclosure of dog owners name and address Bozzi v. Jersey City

6. Defendant statement can be used for bias charge State v Powell

7. Conviction reversed where not afforded adequate notice of the charge against him to prepare a defense State v. Galloway

8. Police could stop taxi where police saw drug transaction State v. Stump

9. Suppression granted where police ignore knock and announce State v Caronna

10. Waiver of First Appearance for Indictable Offenses Charged on a Complaint-Summons (Rule 3:4-2(g)) – Revised Protocol and Form Directive # 29-21

11 West Windsor Mercer County Library Wills, Probate & Estate Planning 2022 Update May 10

1.Terroristic Threat statute unconstitutional where it criminalizes speech State v Fair

Defendant was charged in a one-count indictment with violating N.J.S.A. 2C:12-3(a) "and/or" (b). At trial, the jury was instructed that it could convict if it found defendant made a threat with "the purpose to terrorize" or with a "reckless disregard" of the risk of causing terror, under N.J.S.A. 2C:12-3(a), or if it found defendant threatened to kill "with the purpose" to put the victim in imminent fear of death, under N.J.S.A. 2C:12-3(b). During deliberations, the jury asked whether it was required to find a violation of both subsections (a) and (b); the judge responded one was enough but did not instruct the jurors that they had to unanimously agree on one of the theories to convict. In appealing his conviction, defendant argues N.J.S.A. 2C:12-3(a) violates the First Amendment in part and that the jury unanimity instructions were erroneous.

The court reversed, determining that N.J.S.A. 2C:12-3(a)'s "reckless disregard" standard is unconstitutionally overbroad and that the jury instructions did not adequately ensure against a patchwork verdict. (A-0913-19)

2. Car Passenger can’t be asked demanded for ID State v Boston

In State v Boston, the court decided that when the driver is arrested it is reasonable to ask the passenger for his license, but not for further ID when he fails to produce a license.

Defendant Dwayne D. Boston was convicted of third-degree possession of cocaine following a routine traffic stop on his way home from the movies with his wife and children. He contends the police unlawfully asked him, a front-seat passenger in his wife's car, to hand over his State identification card after he told them he did not have a driver's license. The court agrees, and concludes defendant's subsequent arrest on an open traffic warrant was unlawful, and the drugs seized in the ensuing search incident to his arrest should have been excluded at trial.

The court held in a routine traffic stop where the driver has to be arrested on an open traffic warrant, the officer's asking whether a passenger is a licensed driver is reasonable; but when the passenger claims he does not possess a license, the officer's further demand for identification from the unlicensed passenger in the absence of particularized suspicion is not. (A-4752-17)

3. Second patdown permitted where belief armed State v Carrillo

The main issue in this appeal from the trial court's denial of defendant's suppression motion without a testimonial hearing is whether the officer violated defendant's rights when he patted him down a second time, just minutes after the officer patted him down the first time and uncovered no weapons.

The court concludes that an officer may conduct a second pat-down when, giving weight to the unproductive first one, the circumstances preceding the second one still give the officer reason to believe the suspect is armed and dangerous. Because there exist issues of fact material to that question, the court reverses the trial court's order and remands for a testimonial hearing. (A-4889-18)

4. 2019 Refusal statute not retroactive to arrests prior to 12/1/19 State v Scudieri

In this appeal, the court held that the Legislature intended prospective application of the amended refusal statute, N.J.S.A. 39:4-50.4a. That intent was manifested by the Legislature's express statement that the amended legislation—which imposed on all defendants convicted of refusal the less onerous penalty of installing an interlock device rather than forfeiting his or her license as mandated by the former statute—would become effective on December 1, 2019, over four months after it was signed into law, and apply only to those defendants who committed an offense on or after that date. That unequivocal legislation pronouncement militates against retroactive application even for defendants who were sentenced after December 1, 2019.

In such circumstances, courts need not consider the common law exceptions to the presumption of prospective application as discussed in Gibbons v. Gibbons, 86 N.J. 515 (1981) and James v. New Jersey Manufacturers Ins. Co., 216 N.J. 552 (2014), nor the timing of the penalty incurred under the general savings statute, N.J.S.A. 1:1–15. The Legislature's determination that interlock devices serve as a greater deterrent than license forfeiture supports the conclusion that the amended legislation was neither ameliorative nor curative, in any event. (A-0352-20)

5. OPRA permits disclosure of dog owners name and address Bozzi v. Jersey City

Dog owner’s personal information in the dog licensing record not exempt from disclosure under the Open Public Records Act (OPRA) (A-12-20)

6. Defendant statement can be used for bias charge State v Powell

The court denied defendant’s motion to dismiss the indictment, in which he was charged with bias intimidation, among other crimes, pursuant to N.J.S.A. 2C:16-1(a)(2). Defendant admitted to sending messages via MeetMe.com to the victim threatening to harm her biracial daughter, in which he referred to the child as a "mutt" and "mongrel" and referred to the victim as a "spic loving whore." Defendant asserted that the grand jury was not presented with any evidence demonstrating that defendant directed the threats at the victim and her daughter based on racial motivation. The messages were in reference to the daughter’s race and not the victim’s who was the recipient of the threats. The State argued that the grand jury was presented with testimony that defendant stated he disliked interracial relationships and children of those relationships.

The court denied defendant’s motion, holding that, by defendant’s own admission, the threats were motivated by the victim’s identity as a white female who engaged in a biracial relationship with a Hispanic male and bore a biracial daughter. Additionally, the court reasoned that the victim’s biracial daughter was also a foreseeable third-party victim of the threats even though she was not the recipient. As the standard for upholding an indictment weighs heavily in favor of the State, here defendant’s admissions satisfied the requisite evidence needed to demonstrate racial motivation for N.J.S.A. 2C:16-1(a)(2). (19-10-02086)

7. Conviction reversed where not afforded adequate notice of the charge against him to prepare a defense State v. Galloway unreported

Defendant appealed from his conviction for failing to stop at a stop sign. Defendant was pulled over by a police officer. The officer did not inform defendant of the reason for the stop but instead issued two summonses, one for failing to stop, and a second for improper display of license plates that was later dismissed by the prosecutor. On the summons for failing to stop, the officer wrote that the violation occurred at the intersection of Kingsley and Swaine Streets. However, at trial the officer corrected by testifying that the infraction occurred at the intersection of Kingsley and Riggs Streets. Defendant argued that he had prepared a defense based on the infraction listed on the summons, as defendant had taken photos showing that there was no stop sign controlling defendant's direction of travel at the intersection of Kingsley and Swaine.

Defendant asked the municipal court to order disclosure of the officer's body cam footage, but the judge denied the request, stating that defendant should have requested the footage before trial. The municipal court ultimately credited the officer's testimony that defendant failed to come to a complete stop at the stop sign at Kingsley and Riggs. The municipal court did not amend the summons to reflect the correct intersection. Defendant appealed to the trial court, arguing that because the summons was never amended he was forced to defend himself against a violation he had no notice of. Defendant contended that if he had adequate notice he would have requested the officer body cam footage or obtained testimony from his passenger.

However, the trial court deferred to the municipal court and sustained defendant's objection, finding the error on the summons a minor technical deficiency. On appeal, the court reversed and remanded defendant's conviction, agreeing that he was not afforded adequate notice of the charge against him to prepare a defense. A-0273-20 source Daily Briefing November 29, 2021

8. Police could stop taxi where police saw drug transaction State v. Stump

Defendant appealed his conviction for possession of Xanax without a prescription. Officers patrolling a "high crime" area saw defendant on sidewalk, watched him meet someone they recognized as being involved in narcotics distribution and observed them enter a taxi. Officers pulled taxi over for a traffic violation and alleged they saw defendant trying to secrete a pill bottle. They removed him from taxi, took pill bottle from defendant's hand, observed what appeared to be Xanax and arrested him. Defendant moved to suppress the warrantless seizure of the bottle. Defendant testified he waved a cab down to visit a friend in the hospital. Cab already had one passenger in it, stopped to pick up a third person and was pulled over. He asserted he was pulled from the vehicle, searched and officer took prescription bottle out of his pocket.

Trial court found police lawfully stopped taxi, defendant was lawfully removed from it because it was a high crime area, officer saw defendant moving frantically in taxi while holding pill bottle, officer was permitted to investigate and bottle was lawfully seized under the plain-view doctrine. Court found there was no evidence supporting a reasonable suspicion that defendant was engaged in illegal activity justifying his removal from the taxi and no facts supporting a seizure under the plain-view doctrine. A-1865-19 source Daily Briefing - 09-10-21

9. Suppression granted where police ignore knock and announce State v Caronna

This court held that the exclusionary rule applies where police violate Article I, Paragraph 7 of the New Jersey Constitution by unreasonably and unjustifiably ignoring a search warrant requirement that they knock and announce their presence before entering a dwelling. Doing so deters police from flagrantly violating knock-and-announce search warrant requirements; safeguards against unconstitutional, unreasonable, and illegal search and seizures under New Jersey law; and, importantly, upholds the rule of law and integrity of our administration of justice. A-0581-20

10. Waiver of First Appearance for Indictable Offenses Charged on a Complaint-Summons (Rule 3:4-2(g)) – Revised Protocol and Form Directive # 29-21

1. The attorney for a defendant who is not incarcerated and who is charged with an indictable offense on a complaint-summons may waive the first appearance on behalf of his or her client by completing the “Waiver of First Appearance for Indictable Offenses on a Complaint-Summons” form.

2. The attorney must contact the Criminal Division Office to obtain the date of the pre-indictment disposition conference, which date must be specifically noted on the form.

3. The attorney must certify that the defendant has been advised of the information as set forth in Rule 3:4-2(f) and as contained on the form.

4. The attorney must file the form electronically in e-Courts, either at or before the time fixed for the first appearance, and must provide notification to the prosecuting attorney.

5. Upon the completion of the above requirements, the waiver is accepted by the court as filed and the attorney and defendant need not appear at the first appearance, unless otherwise ordered by the court.

11 West Windsor Mercer County Library

Wills, Probate & Estate Planning 2022 Update
May 10, 6 pm GotoMeeting

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Estate administration can be very complex, and having some information before you begin can help you through the process.

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6. Power of Attorneys recommendations

7. Living Will & Advance Directive for Medical Care

8. Administering the Estate/Probate /Surrogate

9. Avoiding unnecessary expenses and saving your family money

13 Other Relevant unreported Municipal Court cases

C.F.A. v. B.A.A., Appellate Division, Per Curiam. Defendant appealed the decision vacating a TRO and denying a FRO in his favor and granting an FRO in plaintiff's favor. Defendant filed a domestic violence complaint in Camden County and court issued a TRO. Plaintiff attempted to get a TRO the next day but later discovered there was no pending TRO against defendant. Plaintiff filed a DV complaint in Essex County and obtained a TRO. Defendant alleged he was not served with that TRO. A hearing for the FRO on both TROs was held. Two Portuguese interpreters at the hearing were not sworn in. Parties testified they were married and had a physical altercation. Plaintiff alleged defendant threw her to the floor and grabbed her by her hair. Defendant testified plaintiff was drunk, struck him with a utensil and he put her in a bear hug in self-defense. The parties filed for divorce after the incident.

Trial judge found defendant not credible. Defendant argued trial judge abused his discretion and did not have jurisdiction over plaintiff's DV complaint. Court found the plain error in not swearing in the interpreters warranted reversal.

Additionally, there was no motion to consolidate the cases and trial judge lacked jurisdiction to hear plaintiff's Essex County case and did not adequately set forth facts why an FRO was necessary. Source Daily Briefing - 09-23-21 NOT APPROVED FOR PUBLICATION

Richardson v. New Jersey Motor Vehicle Comm'n, Appellate Division, Per Curiam. Petitioner appealed the suspension of his driver's license. Petitioner received his probationary driver's license in 2018. Since receiving his license, he committed seven motor vehicle violations. After his first three violations, he was required to complete a probationary driver program. He committed three more violations while enrolled in the program. He committed another violation three months after the program ended and his license was suspended. Petitioner argued Motor Vehicle Commission failed to consider that his license suspension created a hardship, which constituted good cause for warranting a deviation from N.J.S.A. 39:5-30.10. Court found MVC properly weighed and balanced petitioner's circumstance with the mandated suspension period and its decision was not arbitrary, capricious or unreasonable. Source Daily Briefing - 11-10-21 NOT APPROVED FOR PUBLICATION

State v. Gonzalez, Appellate Division, Per Curiam. Defendant appealed his burglary and controlled dangerous substance convictions. Defendant stole oxycodone from a pharmacy and his car was stopped shortly afterwards for failing to maintain its lane. Officers detected the odor of marijuana and a search of the vehicle revealed a ski mask, latex gloves, alprazolam, suboxone, cocaine, scales, sandwich bags, and a key and paperwork for a storage locker that contained four pounds of marijuana. Defendant argued the traffic stop was unlawful and trial court erroneously denied his suppression motion. Officer testified at the suppression hearing that defendant's car failed to keep right in violation of N.J.S.A. 39:4-88(a) and trial judge found officer was highly credible and had a reasonable suspicion driver violated the statute. Officer's testimony was corroborated by his mobile video recording. Defendant's argument car was preparing for a left turn failed because there was no left turn available to driver in that section of the street and car was not using its left turn signal. Court found no reason to second-guess trial judge's findings Source Daily Briefing September 30, 2021

DWI can be asleep with engine running

State v. Speranza, Appellate Division, Per Curiam. Defendant appealed from his DWI conviction. Defendant's conviction stemmed from an incident in which police responded to a report of an unconscious male in a vehicle at an intersection. The responding officer found defendant asleep in the driver's seat of his car, which was sitting at an intersection with the engine running.

The officer was unable to rouse defendant, forcing him and other responding officers to drag defendant out of his vehicle. Defendant eventually came to, telling the officers that he had come from a friend's house but did not know where he was. The parties stipulated that defendant was intoxicated when police found him. The municipal court accordingly convicted defendant, finding that he was "operating" his car within the meaning of the DWI statute.

Defendant appealed to the trial court, which conducted a trial de novo in which it rejected defendant's argument that he did not "operate" his car. The trial court held that defendant intended to operate his vehicle because he was sitting in the driver's seat with the engine running.

On appeal, the court affirmed defendant's conviction, ruling that a vehicle did not need to be seen in motion to trigger liability under the DWI statute. Instead, it was enough that a defendant had the possibility to move their vehicle by sitting in the car with the engine running. Daily Briefing - 09-23-21 NOT APPROVED FOR PUBLICATION

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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.

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 2013 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 Review.

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. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4^th degree black belt.

KENNETH VERCAMMEN

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