State v Holland, State v Pizzo, Remand on alcotest machine

State v Holland, State v Pizzo, Remand on alcotest machine

STATE OF NEW JERSEY, Plaintiff-Appellant,

v. NICOLE HOLLAND,

Defendant-Respondent. ___________________________

STATE OF NEW JERSEY, Plaintiff-Respondent,

v. KENNETH PIZZO, JR.,

Defendant-Appellant.

Argued February 8, 2011 - Decided April 5, 2011 Before Judges Parrillo, Yannotti and Skillman. On appeal from Superior Court of New Jersey, Law

Division, Monmouth 09-069 and 09-078.

County, Municipal Appeal Nos.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4384-09T3

A-4775-09T3

APPROVED FOR PUBLICATION April 5, 2011 APPELLATE DIVISION

Monica do Outeiro, cause for State of A-4384-09T3 and respondent in Docket No. A-4775-09T3 (Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney; Ms. Outeiro, of counsel and on the brief).

Assistant Prosecutor, argued the New Jersey, appellant in Docket No.

John Menzel argued the cause for appellant Kenneth Pizzo, Jr.

Alexander M. Iler argued the cause for respondent Nicole Holland (Law Offices of Alexander M. Iler, attorneys; Robert W. Ruggieri, of counsel; Mr. Iler, on the brief).

The opinion of the court was delivered by

PARRILLO, We granted leave to appeal in these two matters,

consolidated for the purposes of this opinion, to resolve a common issue: whether blood alcohol concentration (BAC) results derived from an Alcotest 7110 MKIII-C (Alcotest) breath-testing device are admissible against defendants in driving while intoxicated (DWI) prosecutions when the device has been calibrated with a Control Company, Inc. (Control Company) temperature probe, or thermometer, instead of the Ertco-Hart temperature probe referenced in State v. Chun, 194 N.J. 54, 89, 135, 152-53, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

Defendants Nicole Holland and Kenneth Pizzo were convicted in the municipal courts of Neptune City and Sea Girt, respectively, of per se violations of N.J.S.A. 39:4-50, among other motor vehicle offenses. Holland had moved to exclude the results of the Alcotest used to measure her BAC at 0.16% because the Alcotest was calibrated with a temperature probe

P.J.A.D.

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manufactured by a company other than Ertco-Hart. In the other matter, in anticipation of a similar motion, Pizzo requested a N.J.R.E. 104 hearing on the State's foundational proofs — specifically the various reports relating to calibration of the Alcotest machine, and further requested that the State provide missing documentation on the Alcotest device, which in his case produced a BAC reading of .15%. In both instances, the municipal court judge denied the motions, concluding in Holland's case that the Chun decision mandates the use of a NIST traceable thermometer and not necessarily one manufactured by Ertco-Hart, and in Pizzo's case that the State had complied with Chun's requirements. Holland subsequently entered a conditional guilty plea to DWI and Pizzo was convicted after a bench trial of a per se violation of N.J.S.A. 39:4-50.

Both defendants appealed their municipal court convictions to the Law Division, where de novo reviews were conducted by different judges. In the Holland matter, the judge suppressed the Alcotest results for failure to provide a Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability as a requisite foundational document, and remanded the matter to municipal court for proceedings limited to observational proof of Holland's alleged intoxication. The Law Division judge further ruled that, before

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the State could use a temperature probe manufactured by a company other than Ertco-Hart, it was required to seek permission from the Supreme Court and submit proof of comparability in a Frye1 hearing.

The judge in the Pizzo matter reached the opposite conclusion, rejecting the defendant's argument that the Alcotest results were inadmissible solely because the State used a Control Company temperature probe, but remanded to the municipal court to conduct a N.J.R.E. 104 hearing on the State's failure to produce additional Alcotest device data previously requested by Pizzo and to determine whether the Control Company temperature probe was comparable to the Ertco-Hart probe.

We granted leave to appeal in both cases in the interest of justice. R. 2:2-4. However, before addressing the common issue raised in the State's and defendant Pizzo's appeals, we first review basic concepts regarding admissibility of Alcotest results as set forth in Chun, and the role of the NIST traceable temperature measuring system in calibrating a particular Alcotest device.

It has long been recognized that breath-testing devices, known as breathalyzers, are scientifically reliable and accurate instruments used for determining BAC. Chun, supra, 194 N.J. at

1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 4

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64. In fact, drivers whose breathalyzer test results exceed the statutory maximum BAC limit are guilty per se of DWI. Ibid. In order to admit the breathalyzer test results into evidence, the Court has required foundational proofs relating to the operation of the breathalyzer machine. Ibid. Over the years, the breathalyzer has become technologically outdated, resulting in the introduction of the Alcotest. Ibid. The Alcotest generates an Alcohol Influence Report (AIR), which provides an individual's BAC. Id. at 79, 82-83. The Alcotest is manufactured and marketed by Draeger Safety Diagnostics, Inc. (Draeger). Id. at 66.

Chun held that the novel Alcotest, utilizing New Jersey Firmware version 3.11, is "generally scientifically reliable," subject to certain conditions established by the Court. Id. at 65. Thus, "as a precondition for admissibility of the results of a breathalyzer, the State [is] required to establish that: (1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure." Id. at 134. The State must "clearly establish" these preconditions to admissibility. Id. at 92.

Having deemed the instrument reliable in general, the Court then explained how to determine whether the device was in

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"proper working order" in a particular case. Id. at 154. To that end, the State must enter into evidence three core foundational documents, none of which pertain to the temperature

measuring

device at issue here:

(1) the most recent Calibration Report prior to a defendant's test, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent New Standard Solution Report prior to a defendant's test; and (3) the Certificate of Analysis of the 0.10 Simulator Solution used in a defendant's control tests.

[Ibid.] Calibration of the Alcotest during installation, and periodic re-calibration to ensure good working order, is a core element of proof in the accuracy determination, id. at 134, 153, and thus the Chun Court has required introduction of the most recent calibration report prior to admitting Alcotest results into evidence. Id. at 142, 145.

Chun described the calibration process as follows:

Calibration of the machines involves attaching the machine to an external simulator which uses a variety of solutions of known alcohol concentrations to create vapors that approximate human breath. By exposing the . . . mechanisms to these differing concentrations, and by analyzing the device's ability to identify accurately each of those samples within the acceptable range of tolerance, referred to as a linearity test, the coordinator is able to

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ensure that the machine is correctly calibrated.

[Id. at 84.] In its description of the calibration process, the Court did not specifically consider the Ertco-Hart temperature probe. However, the Special Master explained the calibration process in greater detail, Findings and Conclusions of Remand Court, Feb. 13, 2007, reprinted in 2007 N.J. Lexis 39 (Special Master's

Report), noting that "[t]o measure the temperature simulator solution, the [State Police] coordinator Ertco-Hart digital NIST thermometer." Id. at 139.

of the uses an

Specifically, the calibration process involves the running of several sets of tests, which results in the printing of related reports: the Part I Control Tests, the Part II Linearity Tests, the Solution Change Report and the Calibration Record. Prior to commencing these tests, the testing coordinator will prepare several alcohol solutions. The first is a 0.10% alcohol solution for the control tests. Id. at 45. The others are 0.04%, 0.08% and 0.16% alcohol solutions for the linearity tests. Ibid. Each of these solutions must be heated to thirty- four degrees Celsius (plus or minus 0.2 degrees), the average range of human breath, which will create vapors that approximate human breath and provide for successful calibration. Id. at 45, 286. To do so, the coordinator will allow each solution to heat

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for approximately one hour and then ensure that they have reached the appropriate temperature using an external NIST traceable temperature probe.2 Id. at 45, 138-39. Thus, the temperature probe is used to ensure the appropriate temperature of the solutions prior to the commencement of calibration of the Alcotest machine. Id. at 45-46.

Once the coordinator has determined that the alcohol solutions have reached their appropriate temperatures, the coordinator will begin calibration. Again, neither the Ertco- Hart nor Control Company probe is a part of the Alcotest device — it is used only to determine the temperature of the solutions before they are put into the Alcotest machine.3 First, the

2 NIST refers to the National Institute of Standards and Technology, which is responsible for establishing, maintaining and publishing basic standards of measurement consistent with their international counterparts. Special Master's Report, supra, at 45.

3 Significant for present purposes, there are other temperature probes, distinct from the temperature measuring device — whether made by Ertco-Hart or Control Company — used by the coordinator in initial calibration, see Special Master's Report, supra, at 138-39, that are integral to the calibration process itself and are not here in issue. One such probe is the "black key temperature probe" used by the testing coordinator to gain access to the calibration process. Id. at 138; see also Chun, supra, 194 N.J. at 83. Additionally, the Alcotest device itself contains a temperature probe within the machine. Special Master's Report, supra, at 35; Chun, supra, 194 N.J. at 105 n.24 ("There are several temperature devices related to the Alcotest. One, which is an integral part of each device, and the report of which is included on the AIR, heats the simulator solution in

(continued)

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coordinator will gain access to the Alcotest with the coordinator's black key temperature probe and conduct a control test with the 0.10% simulator solution. Id. at 45, 138. If the results of this test are not within the requisite range, the Alcotest will prompt the coordinator to repeat the control test with a new 0.10% simulator solution. If, on the other hand, the results are acceptable, the Part I Control Test certificate is printed. This document records the temperature of the 0.10% simulator solution as measured during the test — separate from the temperature recorded by the coordinator with the Control Company, or Ertco-Hart, probe during pre-calibration preparations. Chun, supra, 194 N.J. at 105 n.24.

The coordinator will then conduct two linearity tests on each of the three different simulator solutions of 0.04%, 0.08% and 0.16% by again using the coordinator's black key temperature probe. Special Master's Report, supra, at 45-46. If the results of the linearity tests are not acceptable, the Alcotest is placed out of service. If, on the other hand, the results are acceptable, the Part II Linearity Tests certificate is printed. Also contained on this certificate are the

(continued) the control test both in the device and, by extension, in the calibration process. Another heats the breath tube, but not the subject's actual breath sample, to prevent condensation.").

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temperatures of the three solutions as measured during the test — again separate from that measured by either the Ertco-Hart or Control Company probe during pre-calibration preparations. Lastly, the coordinator uses a solution to generate a Solution Change Report, which will complete the calibration test sequence and print a calibration record. Id. at 46.

In order to enable a defendant to challenge the functionality or operability of the device, the State must also disclose in discovery, in addition to the three "core" documents admitted into evidence, certain other "foundational" documents, which "might reveal some possible flaw in the operation of the particular device." Chun, supra, 194 N.J. at 148. The twelve non-core foundational documents, some of which pertain to the accuracy of the temperature probes, consist of:

(1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator's credentials of the officer who performed that change; (2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report; (3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator; (4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe; (5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered)); (6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests); (7) Certificate of Analysis 0.10 Percent Solution (used in

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Calibration-Control); (8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity); (9) Calibrating Unit, New Standard Solution Report, following Calibration; (10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and (12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.

[Id. at 134-35, 153.] These documents, including, most notably for present

purposes, the Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability4 "are not fundamentally a part of demonstrating that the particular device was in good working order." Id. at 144-45. Characterized as "tests of tests and, therefore . . . too attenuated[,]" they are not essential to establish admissibility. Id. at 144. Rather, they are produced in discovery to allow a defendant to challenge the "accuracy of the device used and the chemical composition of solutions used to

4 Specifically, the Chun Court requires that a State Police coordinator re-calibrate the Alcotest device once every six months as evidenced by a "Draeger Safety, Ertco-Hart Calibration Report," certifying the reliability of the temperature probe, which must be produced during discovery as one of numerous foundational documents prior to admission of the Alcotest results. Id. at 153.

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routinely n.47. To

test and calibrate the machine." Id. at 142, 144 that end:

[I]n the event that any defendant perceives of an irregularity in any of these documents that might affect the proper operation of the device in question, timely issuance of a subpoena will suffice for purposes of protecting that defendant's rights. Were the use of the subpoena power to become routine, we would commend to the parties, with the assistance of our municipal courts, the use of pretrial de bene esse depositions or video conferencing technology to reduce the burden on the State or any independent testing laboratories.

[Id. at 144 n.47 (emphasis added).] However, "[a]bsent a pre-trial challenge to the admissibility of the AIR based on one of the other foundational documents produced in discovery, [the Court] perceive[d] of no reason to require that they be made a part of the record routinely." Id. at 145.

The present issue arises because testing coordinators in these two matters used a Control Company probe to confirm the appropriate temperature of the alcohol solutions, rather than the Ertco-Hart device referred to in Chun.5 Thus, in both cases,

5 In Holland's case, the Alcotest 7110 MKIII-C was successfully calibrated on May 26, 2009 by a certified State Police Breath Test Coordinator, and produced a BAC reading of 0.16% on June 24, 2009. As for Pizzo, the Alcotest 7110 MKIII-C was successfully calibrated on March 6, 2009 by a certified State

(continued)

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instead of producing in discovery a "Draeger Safety Ertco-Hart Calibration Report" as set forth in an order appended to the Chun opinion, the State produced a Control Company "Traceable Certificate of Calibration for Digital Thermometer," which is the manufacturer's own certification of the measuring system's accuracy. Consequently, both defendants argued that the results rendered by the Alcotest machine in their respective cases should have been excluded because a condition established in the Chun order was not satisfied. The Law Division judge in the Holland matter agreed, concluding that only Draeger's Ertco-Hart Calibration report — a non-core document — could satisfy the Chun Court's foundational requirements for admission of Alcotest results. We disagree. In our view, the AIR is not rendered inadmissible as an automatic consequence of the State's failure to produce a non-core foundational document.

Granted, the Chun Court mentioned "Ertco-Hart" several times in requiring foundational documents identifying the temperature probe by serial number in the calibration reports, inclusion of that serial number in the firmware of the temperature measuring system, and production of the temperature

(continued) Police Breath Test Coordinator, and produced a BAC reading of 0.15% on May 25, 2009.

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probe's NIST traceable certification.6 We do not read these references too strictly or literally as a mandate that only the

6 Specifically, there are four such references:

[T]he parties agree . . . that future calibration, certification and linearity reports should include the serial number of the Ertco-Hart digital temperature measuring system utilized in performing those testing and maintenance operations (Special Master's Finding 2(i)).

....

. . . [T]he Special Master recommended that certain documents, which he referred to as the "foundational documents," be produced during discovery and that they be admitted into evidence as part of the State's case- in-chief. The documents in question can be described as follows: . . . (12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.

....

G. The firmware shall be programmed to include the serial number of the Ertco-Hart digital temperature measuring system utilized as a part of each calibration, certification and linearity report;

....

3. ORDERED that the State shall forthwith . . . [p]roduce in discovery the twelve foundation documents identified by the Special Master as follows: . . . (12) Draeger Safety Ertco-Hart Calibration Report.

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Ertco-Hart device be used, but rather as a facile means of identifying the temperature probe used to calibrate the Alcotest machine in Chun, and as distinguished from the other thermometers employed in the calibration process.

Nowhere in Chun or its accompanying order did the Court expressly state that only the Ertco-Hart device, to the exclusion of all others, was acceptable. On the contrary, the Chun Court adopted as modified the Special Master's Report, which described the calibration process as involving a "NIST- traceable temperature probe monitor[ing] the temperature of the simulator solution." Special Master's Report, supra, at 45 (emphasis added). Indeed, the Special Master advised the Court that "[t]he revised firmware shall require that the Ertco-Hart Digital Temperature Measuring System or other similar devices traceable to the National Institute of Standards and Technology is in proper operating condition and that the serial number of such devices be listed on all reports where . . . relevant." Id. at 272. (emphasis added).

There is no discussion in Chun of the uniqueness or significance of Ertco-Hart as the manufacturer of the

(continued) [Chun, supra, 194 N.J. at 89, 134-35, 152-53 (emphasis added).]

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temperature probe, and its only discernable characteristic appears to be certification of NIST traceability, which the Control Company probe also possesses. In other words, the emphasis is on NIST traceability as opposed to brand name. See ibid. Thus, we conclude that the Ertco-Hart references in Chun are merely identifiers explaining the necessary firmware modifications and foundational documents required with respect to one temperature probe (the one used to determine the alcohol solution temperatures during the calibration process), separate and apart from the Alcotest machine's internal temperature probe and the coordinator's black key probe.

We have in the past embraced a practical application of the requirements for admission of breath-test results so as not to "create an unduly and . . . unintended restriction on the State's ability to prosecute DWI cases." State v. Ugrovics, 410 N.J. Super. 482, 488-89 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010). There, the defendant claimed that the Court's use of the term "operator" in Chun prohibited any individual other than a certified Alcotest operator from observing a driver during a required "observation" period. Id. at 488-90. We disagreed, rejecting "a literal, unexamined application of such language [that] would create an unduly and . . . unintended

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restriction on the State's ability to prosecute DWI cases based on the results of an Alcotest." Id. at 489.

Courts have also rejected limiting BAC results to those obtained using specifically manufactured machines. See State v. Samarel, 231 N.J. Super. 134, 140 (App. Div. 1989). In Romano v. Kimmelman, 96 N.J. 66 (1984), the Court upheld the reliability of the "Smith and Wesson Breathalyzer Model 900." Id. at 72, 82. Later, after the State began to replace the Smith and Wesson with a Draeger Breathalyzer Model 900, a driver charged with DWI challenged the driver's BAC results obtained using the Draeger breathalyzer machine because it was not manufactured by Smith and Wesson as referred to by the Romano Court. Samarel, supra, 231 N.J. Super. at 140. There, we rejected the "defendant's argument that the Supreme Court has approved the use of Smith and Wesson's breathalyzer model 900 to the exclusion of other manufacturers' breathalyzer models 900." Ibid. Similarly, in State v. Laurick, 231 N.J. Super. 464 (App. Div. 1989) rev'd on other grounds, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), we held that the Romano Court did not intend to limit its reliability findings to specific breathalyzer manufactures because such a reading of Romano would create "an absurd result." Id. at 471 n.1, 472-73.

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Because the use of another manufacturer's temperature probe to calibrate the Alcotest machine does not alone compel exclusion of test results, we reverse the contrary finding of the Law Division judge in the Holland matter. Of course, the fact that the Alcotest results are not rendered automatically inadmissible thereby does not end the inquiry. Although the Alcotest machine has been found to be generally reliable, the State still bears the burden of demonstrating the "proper working order" of the device. As noted, this is accomplished by introducing into evidence the three core foundational documents, Chun, supra, 194 N.J. at 154, which the State had done in both the Holland and Pizzo matters. In other words, the State may meet its initial burden to support the admissibility of Alcotest results without reference to the calibration of the temperature probe. Thus, once the State has introduced the core documents into evidence and produced the other foundational documents in discovery, the burden of production shifts to the defendant to show why the machine was not in working order, namely, apropos to the present matters, whether and how the differences in the temperature probes had any impact at all. Absent further evidence in this regard, we discern no impediment to the admission of the Alcotest results as the State would have

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satisfied its ultimate burden of persuasion as to the device's reliability and accuracy.

Based on the foundational document itself, Holland raised sufficient questions as to the reliability of the Control Company's probe to warrant further inquiry. Specifically, the device was calibrated on May 26, 2009, by a State Police coordinator using a Control Company temperature probe with a serial number DDXAP2-149. During discovery, the State provided the Control Company Traceable Certificate of Calibration for Digital Thermometer as a foundational document, demonstrating the reliability of the temperature probe. However, contained on this certification are numerous serial numbers and "due dates," including a March 6, 2009 due date for temperature probe serial number 149. Although unexplained, the due date may possibly be the date the probe is due for re-certification.

Holland raised this issue in the municipal court, contending that the certification and calibration reports revealed that during the May 26, 2009 calibration, the testing coordinator used an expired temperature probe, which came due for re-certification on March 6, 2009. However, the parties could not explain with certainty the use of the phrase "due date," nor the existence of a November 18, 2008 "Cal Date" and November 18, 2010 "Cal Due." Relying on those entries, however,

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Holland interpreted the Control Company calibration certificate to require calibration of its temperature probe every two years. Nevertheless, the municipal court could not determine whether the certificate's "Cal Date: 11/18/08" and "Cal Due: 11/18/10" was applicable to the temperature probe, or the due date of March 6, 2009 for serial number 149 rendered it unreliable.7 Later, on appeal to the Law Division, Holland raised the issue again, asserting that there were "some questions about what certain terms meant on [the] calibration certificate . . . [a]nd certain dates."

Satisfied that the Alcotest results were automatically excluded by reason alone of the difference in manufacturer, the Law Division judge left the questions raised by defendant unanswered. Yet, as part of its ultimate burden to clearly establish the good working order of the device, the onus of

7 Pursuant to Chun's direction that "in the event that any defendant perceives of an irregularity in any of [the foundational] documents that might affect the proper operation of the device in question, timely issuance of a subpoena will suffice for purposes of protecting that defendant's rights[,]" Chun, supra, 194 N.J. at 144, the municipal court judge granted an adjournment so that Holland could depose Wallace Berry, the technical manager at Control Company whose signature appears on the certificate. Prior to the next hearing, Holland subpoenaed Berry for a video deposition, but Control Company, a Texas corporation, declined to produce Berry for the deposition. The municipal court judge ultimately determined that he was unable to assert jurisdiction over Berry to compel Berry's appearance as an out-of-state witness.

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explaining any facial irregularity in the foundational documents that might affect the proper operation of the device in question lay with the State. Chun, supra, 194 N.J. at 92, 144 n.47. Therefore, we are constrained to remand to the Law Division to determine, among other issues validly raised by defendant Holland,8 whether the Control Company temperature probe was properly certified on May 26, 2009, pursuant to the Traceable Certificate of Calibration for Digital Thermometer.

8 The trial judge cited other differences between the Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability and the Control Company Traceable Certificate of Calibration for Digital Thermometer:

In fact, the evidence before this court shows that there are differences between the two temperature probes. First, Control Company, Inc. requires that the temperature probe be tested every two years, while the Draeger Safety temperature probe requires testing every twelve months. Second, the certificate from the Control Company states the following: ". . . there is no exact way to determine how long calibration will be maintained." However, the Draeger Safety certification for the digital temperature probe does not contain this language. This court finds that the differences stated above in conjunction with the fact that there was no expert testimony regarding its functionality, leaves this court to question whether this device can properly test the operating capability of the Alcotest machine.

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We reach the same result, as did the other Law Division judge, in the Pizzo matter. There, the court found that although Chun did not preclude the use of any similar digital thermometer traceable to NIST, "the record below is insufficient to support a finding that the digital thermometer used in this matter was in fact comparable to the Ertco-Hart thermometer." Consequently, the judge remanded the case to the municipal court for a N.J.R.E. 104 hearing on the reliability of the Control Company temperature probe and, separately, on a discovery issue involving missing Alcotest machine data not produced by the State and previously raised by the defendant below. The State did not cross-appeal from that remand order. In fact, the State has represented that it will be able to demonstrate that its change of manufacturer "holds no significance" and that "the Control Company, Inc., temperature probe is comparable to its Ertco-Hart-manufactured counterpart and meets the Special Master's requirement of traceability to internationally- recognized NIST standards."

We, therefore, agree for reasons previously stated with regard to the Holland matter that a remand is also indicated as to defendant Pizzo. We direct, however, that these two matters be consolidated and remanded to the Law Division for a hearing before a single judge to be designated by the Assignment Judge

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of Monmouth County to establish the reliability of the Alcotest results and the validity of the Traceable Certificate of Calibration for Digital Thermometer at the time of the Alcotest's calibration in each case. We further direct that the hearing is to be conducted within sixty days, with notice to the Attorney General, and findings of fact and conclusions of law rendered forthwith thereafter. We retain jurisdiction.

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IMO the Civil Commitment of W.X.C. (A-33-09)

IMO the Civil Commitment of W.X.C. (A-33-09)

Argued April 26, 2010 -- Decided November 9, 2010

HOENS, J., writing for a majority of the Court.

In this appeal, the Court considers a challenge to the constitutionality of the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

Over the span of several months in 1992, defendant burglarized two homes multiple times, raping two women who lived in them. One was raped at knifepoint and the other while defendant threatened her by telling her that he had a gun. Later that year, defendant walked into a nursing home where he overpowered his third female victim, dragging her into a bedroom and demanding that she perform a sex act on him. Only the arrival of the police saved her from his assault.

N.J.S.A. 2C:47-1 to -10. The essential test for a sentence to the ADTC is whether the offender is a repetitive and compulsive sex offender who is in need of treatment. The ADTC evaluation revealed that although defendant was a repetitive sex offender, he was not a compulsive one, as a result of which he did not meet the statutory criteria for sentencing to the ADTC under the Sex Offender Act. Defendant was sentenced in accordance with the plea agreement. During his incarceration, defendant did not request or receive treatment related to his sexual offenses, and he did not request that he be re-evaluated for a transfer to the ADTC.

2 In 1998, while defendant was serving his sentence, the Legislature enacted the SVPA, which, in relevant part, created a framework to use in identifying and committing for specialized treatment those sex offenders who were “suffer[ing] from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment.” N.J.S.A. 30:4-27.26. In 2007, as defendant was nearing the end of his prison term, the State filed a petition seeking to have him civilly committed pursuant to the SVPA. Defendant immediately challenged the State’s petition, arguing that because he had not been provided with sex offender treatment while he was incarcerated, civil commitment would violate the ex post facto clauses of the federal and state constitutions.

The civil commitment court rejected defendant’s challenge, concluding that the SVPA is not unconstitutional on its face or as applied to someone, like defendant, who did not receive treatment while incarcerated. The court concluded, after extensive expert testimony, that defendant met the statutory test for SVPA commitment. In particular, the court found, by clear and convincing evidence, that defendant is a sexually violent predator who is highly likely to reoffend if not committed to the Special Treatment Unit (STU) and treated. The court therefore declared defendant to be a sexually violent predator and committed him to the STU for treatment.

On appeal, defendant argued, among other things, that the SVPA is unconstitutional either on its face or as applied to individuals who have not been offered treatment during their incarceration. He did not contend that the SVPA is generally punitive, but attacked it as unconstitutional because, in his view, the statute uses civil commitment as a vehicle for further punishment. In a published opinion, the Appellate Division rejected all of defendant’s arguments, concluding in relevant part that the SVPA is not unconstitutional on its face or as applied to an individual, like defendant, who was not provided with sex offender treatment at the ADTC during his incarceration.

The Supreme Court granted defendant’s petition for certification, in which he sought the Court’s review only of his constitutional attack on the SVPA.

HELD: The Court concludes that the Sexually Violent Predator Act (SVPA) is remedial and regulatory in nature, and that its incidental effects, including the use of confinement as part of the treatment methodology, do not alter the essential character of the statute. The Court thus declines to conclude that the SVPA is transformed into a punitive, and therefore unconstitutional, enactment merely because it applies to some individuals, like defendant, who were not provided with specialized treatment prior to civil commitment.

1. This Court has thoroughly analyzed the history and meaning of the ex post facto clauses of the federal and state constitutions in addressing an attack on the registration and notification provisions of Megan’s Law. The Court has noted that a statute violates the ex post facto clause if it operates so as to: “(1) punish as a crime an act previously committed, which was innocent when done; (2) make more burdensome the punishment for a crime, after it commission; or (3) deprive a defendant of any defense available according to the law at the time when the crime was committed.” State v. Muhammad, 145 N.J. 23, 56 (1996). The Court has specifically emphasized that, in the SVPA, the Legislature intended to create a civil, rather than a penal statute, with two fundamental purposes: to protect the public from dangerous predators and to treat sex offenders who are, by definition, suffering from a mental abnormality. The Court has recognized that by utilizing confinement as part of treatment, the SVPA has some punitive impact, and that this aspect of the statute is “onerous.” Nevertheless, the Court has concluded that this does not violate the ex post facto clause because it is simply an “inevitable consequence of the regulatory provisions.” State v. Bellamy, 178 N.J. 127, 138 (2003). The choice to include confinement as part of the means through which the statutory goals are achieved does not transform the statute automatically into one that is punitive. In Allen v. Illinois, 478 U.S. 364 (1986), the United States Supreme Court set forth the framework that has been the guide for constitutional attacks on statutes of this type ever since: “Where a defendant has provided ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Id. at 369. Focusing on the distinctions between the State’s goals of punishment and of providing treatment, the Court has declined to equate the loss of liberty occasioned by civil commitment with that imposed after criminal prosecution and rejected the challenge to the statute’s constitutionality. The Court’s conclusion remains that the SVPA is remedial and regulatory in nature, and that its incidental effects, including the use of confinement as part of the treatment methodology, do not alter the essential character of the statute. The Court thus declines to conclude that the SVPA is transformed into a punitive, and therefore unconstitutional, enactment merely because it applies to some individuals, like defendant, who were not provided with specialized treatment prior to civil commitment. (Pp. 7-20)

2. Defendant’s second attack on the constitutionality of the SVPA as applied to him and offenders like him is based on a fundamental fairness argument. In the end, the fatal flaw in defendant’s argument lies in its failure to appreciate that the Sex Offender Act and the SVPA are designed to serve different purposes and strive to achieve them through different regulatory mechanisms. There is no basis for defendant’s assertion that because only some sex offenders are found eligible for ADTC treatment, there is a constitutional infirmity as to all of the others. Viewed in tandem, as they were intended to be, the Sex Offender Act and the SVPA represent a carefully constructed framework for maximizing the goals of both treatment and punishment for offenses. The mere fact that some offenders, who meet the definition of sex offenders qualified for treatment at the ADTC, in fact receive that treatment, does not equate with a finding that all other offenders who have committed similar crimes, but who do not meet the stringent ADTC guidelines, are being treated unfairly. The Court declines to conclude that an offender, like defendant, who did not qualify for that program based on its legitimate clinical and diagnostic criteria, was entitled to demand admission to the ADTC. (Pp. 20-29)

3. Only if there is a hidden punitive purpose to the SVPA’s delay in offering treatment can the Court say that it is unconstitutional as applied. Nothing in the history of the enactment of the SVPA or the amendments to the Sex Offender Act and nothing in the operation of that statutory scheme suggests such a purpose. Nor does any evidence found in the available statistics support such a claim. Instead, the available statistics demonstrate that only a tiny fraction of potentially SVPA-eligible offenders who receive no treatment in prison eventually are civilly committed.

There is, in the final analysis, no basis on which to conclude that there is any constitutional infirmity in the SVPA as applied to defendant or others like him who do not qualify for ADTC treatment, who therefore do not access specialized sex offender treatment during their incarceration, and who thereafter are deemed to be sexually violent predators as to whom civil commitment for treatment at the Special Treatment Unit is appropriate. The operation of the SVPA is neither punitive nor fundamentally unfair and the Court therefore rejects defendant’s arguments that it is unconstitutional as applied to him and other offenders like him. (Pp. 29-31)

4. The Court concludes with a few observations prompted by the approach advanced in the dissent, noting that, although insistent in its tone, the dissent’s constitutional argument rests on factual and legal propositions that are simply false. First, the dissent presumes that one can identify at the time of sentencing those sex offenders who will eventually be committed to the Special Treatment Unit. That assumption, however, is unsubstantiated. Second, the dissent’s Eighth Amendment argument is fundamentally flawed. No court has concluded that the failure to provide sex offender treatment during incarceration equates with cruel and unusual punishment and the dissent does not point to any. Third, the dissent’s reliance on decisions concerning the rights that civilly committed, mentally disabled, persons have to treatment confuses the rights that this defendant might have after he is committed to the SVPA with rights that he might or might not have while incarcerated. Finally, the Legislature may well choose to revisit the statutes relating to sex offenders, and it might do so in light of the fact that this specific offender was identified as a potential SVPA committee two years before his expected release. However, there being no constitutional infirmity in the statutory framework now in place governing sex offenders, that choice remains for the Legislature. (Pp. 31-35)

The judgment of the Appellate Division is AFFIRMED.

STATE v. R.S. ,DOCKET NO. A-0161-09T4

STATE

v.

R.S. ,

DOCKET NO. A-0161-09T4

______________________________________________________

Submitted March 15, 2011 - Decided

Before Judges Espinosa and Skillman.

On appeal from Superior Court of New Jersey,

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

Law Division, Burlington County, Indictment

No. 01-11-1422.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Philip Lago,

Designated Counsel, of counsel and on the

brief).

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent

(Jennifer Paszkiewicz, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant was indicted for second-degree sexual assault, in

violation of N.J.S.A. 2C:14-2(c)(4), and endangering the welfare

of a child, in violation of N.J.S.A. 2C:24-4(a). Pursuant to a

April 1, 2011

2 A-0161-09T4

plea agreement, defendant pled guilty to the endangering the

welfare of a child charge and the State dismissed the sexual

assault charge. The trial court sentenced defendant to a fiveyear

term of imprisonment, which he was required to serve at the

Adult Diagnostic and Treatment Center in Avenel. On defendant's

appeal, which we heard on an excess sentence calendar, see R.

2:9-11, we affirmed defendant's sentence as not excessive.

State v. Schemelia, A-5762-03 (Dec. 14, 2004).

When defendant completed service of his sentence, he was

civilly committed on January 26, 2007 pursuant to the Sexually

Violent Predator Act (SVPA). N.J.S.A. 30:4-27.24 to -27.38.

On February 27, 2007, defendant filed a petition for postconviction

relief, and on June 2, 2008, assigned counsel filed a

brief in support of defendant's petition. One of the arguments

presented in that petition and supporting brief was that

defendant was entitled to have his guilty plea vacated because

the trial court had failed to advise him of the potential for

civil commitment for life upon the completion of service of his

five-year sentence. Defendant also argued that his trial

counsel had been ineffective in failing to advise him about the

potential for civil commitment for life as a result of his

guilty plea and that his appellate counsel was ineffective in

failing to raise these arguments in his direct appeal.

3 A-0161-09T4

The trial court initially decided that "there was an

obligation by either the Court or by [defense counsel] to advise

[R.S.] that he possibly could have had a lifetime period . . .

of civil commitment . . . as I read Bellamy," and that because

defendant did not receive this advice before pleading guilty, he

was entitled to retract his guilty plea. However, the court

subsequently reconsidered its initial decision on its own motion

and determined that defendant was not entitled to postconviction

relief. The court set forth its reasons for the

denial of defendant's petition in a written opinion dated May 7,

2009, concluding that "at the time of defendant's plea and

sentence, . . . neither the trial court nor defense counsel was

required to inform defendant of his possible commitment under

the SVPA because it was considered a collateral consequence."

On appeal from the denial of his petition, defendant

presents the following arguments:

POINT I:

THE LOWER COURT ERRED IN DENYING THE

PETITION SINCE DEFENDANT'S GUILTY PLEA WAS

NOT KNOWING AND VOLUNTARY. DEFENDANT HAD

NEVER BEEN ADVISED THAT HE COULD BE SUBJECT

TO "LIFETIME COMMITMENT" UNDER THE

PROVISIONS OF THE SEXUALLY VIOLENT PREDATOR

ACT; NOR DID HE UNDERSTAND WHAT CIVIL

COMMITMENT ENTAILED.

A) DEFENDANT IS ENTITLED TO RETROACTIVE

APPLICATION OF THE REQUIREMENTS OF

BELLAMY SINCE DEFENDANT HAD NOT YET

4 A-0161-09T4

EXHAUSTED ALL AVENUES OF DIRECT REVIEW

ON THE DATE BELLAMY WAS DECIDED.

B) ASSUMING, ARGUENDO, THAT DEFENDANT IS

NOT ENTITLED TO RETROACTIVE APPLICATION

OF THE REQUIREMENTS OF BELLAMY, THE

COURT SHOULD NONETHELESS APPLY BELLAMY

DUE TO FACTORS PECULIAR TO THIS

DEFENDANT.

C) THE PLEA WAS NOT MADE KNOWINGLY AND

VOLUNTARILY SINCE DEFENDANT WAS NEVER

ADVISED THAT HE COULD BE SUBJECT TO

"LIFETIME COMMITMENT." DEFENDANT MUST,

THEREFORE, BE PERMITTED TO WITHDRAW HIS

PLEA.

POINT II:

THE LOWER COURT ORDER MUST BE REVERSED SINCE

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL IN CONNECTION WITH THE PLEA.

A) COUNSEL WAS INEFFECTIVE SINCE HE FAILED

TO PROPERLY CONSULT WITH DEFENDANT

CONCERNING THE PLEA AGREEMENT.

B) COUNSEL WAS INEFFECTIVE SINCE HE FAILED

TO DEVELOP AN ALIBI DEFENSE.

C) COUNSEL WAS INEFFECTIVE SINCE HE FAILED

TO ADEQUATELY INVESTIGATE THE CASE.

POINT III:

THE LOWER COURT ORDER DENYING THE PETITION

MUST BE REVERSED SINCE DEFENDANT RECEIVED

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT IV:

THE LOWER COURT ORDER MUST BE REVERSED IN

LIGHT OF ADDITIONAL ERRORS.

5 A-0161-09T4

POINT V:

THE LOWER COURT ORDER MUST BE REVERSED SINCE

CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE

PROCESS.

POINT VI:

THE LOWER COURT ORDER DENYING THE PETITION

MUST BE REVERSED SINCE THE LOWER COURT

FAILED TO MAKE SPECIFIC FINDINGS OF FACT AND

CONCLUSIONS OF LAW AS REQUIRED BY R. 3:22-

11. (Not Presented Below).

POINT VII:

THE LOWER COURT ORDER DENYING THE PETITION

MUST BE REVERSED SINCE DEFENDANT'S CLAIMS

ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT VIII:

THE LOWER COURT ERRED IN NOT GRANTING

DEFENDANT'S REQUEST FOR AN EVIDENTIARY

HEARING AND THE LOWER COURT ORDER MUST

THEREFORE BE REVERSED.

Except for defendant's arguments relating to the failure of

the trial court and his trial counsel to advise him that he

could be civilly committed for life under the SVPA and the

failure of appellate counsel to raise these arguments on

defendant's direct appeal, we reject these arguments as clearly

without merit. R. 2:11-3(e)(2). However, we conclude that

defendant's arguments based on the absence of any evidence in

the record that he was advised a civil commitment under the SVPA

could be for life have sufficient merit to warrant an

evidentiary hearing at which a full record can be developed.

6 A-0161-09T4

The requirement that a defendant who pleads guilty to an

offense that will subject him to civil commitment under the SVPA

receive such advice was recognized by our Supreme Court in State

v. Bellamy, 178 N.J. 127 (2003), which held that "prior to

accepting a plea to a predicate offense under the [SVPA], the

trial court should ensure that a defendant understands that, as

a result of his or her plea, there is a possibility of future

commitment and that such commitment may be for an indefinite

period, up to and including lifetime commitment." Id. at 139-40

(emphasis added). Bellamy also held that the rule it announced

should be applied to pending cases "in which the defendant has

not yet exhausted all avenues of direct review." Id. at 143.

Defendant was sentenced only nine days before the Court

decided Bellamy. Thus, even though defendant's case may not

have been technically "pending" when Bellamy was decided because

he had not yet filed a notice of appeal from the judgment of

conviction, he "ha[d] not yet exhausted all avenues of direct

review." Ibid. Therefore, defendant would have been entitled

to rely upon Bellamy on his direct appeal. However, defendant

seeks relief under Bellamy on a petition for post-conviction

relief.

Before explaining our reasons for concluding that

defendant's entitlement to such relief should be decided based

7 A-0161-09T4

on a full record developed at an evidentiary hearing, we note

that this is not a case in which defendant received no advice

concerning the possibility of civil commitment under the SVPA

after completion of the sentence to be imposed under the plea

agreement. One of the plea forms defendant executed before

pleading guilty asked:

Do you understand that if you are confined

at the Adult Diagnostic and Treatment Center

or any other facility for commission of a

sexually violent offense, you may upon

completion of you[r] term of confinement be

involuntarily committed to another facility

if the court finds, after a hearing, that

you are a sexually violent predator in need

of involuntary civil commitment?

Defendant circled the "yes" box in response to this question.

The trial court's colloquy with defendant in taking his plea

included the same question and answer:

Q. Do you understand that if you're

confined at the adult diagnostic and

treatment center you may upon completion of

your term of confinement be involuntarily

committed to another facility if the Court

finds after a hearing that you are a

sexually violent predator in need of

involuntary civil commitment?

A. Yes.

However, defendant argues that the information communicated to

him by the plea form and his colloquy with the trial court did

not satisfy Bellamy because it did not include the fact that

8 A-0161-09T4

such confinement "may be for an indefinite period, up to and

including lifetime commitment." 178 N.J. at 140.

This argument assumes that the only information defendant

received concerning possible confinement under the SVPA was the

information communicated to him by the plea form and colloquy

with the trial court. Such an assumption fails to take into

account the role of trial counsel in advising his or her client

of the consequences of a plea. Defendant's counsel may very

well have provided him with information concerning possible

confinement under the SVPA in addition to the simple question

and answer contained in the plea form and colloquy with the

trial court. Therefore, before we rule upon defendant's

arguments that the trial court did not comply with Bellamy in

taking his plea and that his trial counsel was ineffective in

failing to advise him of the full possible consequences of the

SVPA, testimony should be adduced from defendant and his trial

counsel concerning the advice given to defendant about the SVPA

before his plea.

In addition, testimony should be adduced concerning the

advice, if any, that defendant's appellate counsel gave him

about Bellamy, his possible confinement under the SVPA, and the

availability of a claim of ineffective assistance of trial

counsel based on the failure to advise him of the full possible

9 A-0161-09T4

consequences of the SVPA. The State contends that a defendant

may not refrain from raising the issue of the trial court's

compliance with Bellamy on his direct appeal and then raise the

issue for the first time on a petition for post-conviction

relief. See R. 3:22-4; Bellamy, supra, 178 N.J. at 143.

However, defendant alleges that the reason he did not raise the

issue on his direct appeal is that his appellate counsel failed

to inform him of its availability and that this failure

constituted ineffective assistance of appellate counsel. Before

ruling upon this argument, the trial court should hear testimony

regarding the advice appellate counsel gave to defendant in

connection with his appeal.

Finally, even if defendant was not advised of the full

possible consequences of the SVPA at the time of his plea, this

would not automatically entitle him to vacate his plea at this

time. If a defendant is not fully informed of the consequences

of his plea, he is entitled to withdraw his plea only if he

shows that the information that was not communicated to him was

material to his decision to accept the plea offer. Bellamy,

supra, 173 N.J. at 134-35; State v. Howard, 110 N.J. 113, 123-24

(1988). Therefore, even if the trial court finds that defendant

was not informed that civil confinement under the SVPA could be

for an indefinite period, up to and including for life, and

10 A-0161-09T4

concludes that defendant is entitled to pursue this argument on

his petition for post-conviction relief even though it was not

raised on direct appeal, the court should also make appropriate

findings concerning the effect of this omitted information upon

defendant's decision to plead guilty.

Accordingly, we vacate the order denying defendant's

petition and remand to the trial court for an evidentiary

hearing in conformity with this opinion. The trial court is

directed to make detailed findings of fact and conclusions of

law based on the evidence presented at that hearing. The remand

shall be completed within sixty days of the filing of this

opinion. Jurisdiction is retained.

STATE OF NEW JERSEY VS. RAMON A. RODRIGUEZ-ALEJO A-0815-09T3

STATE OF NEW JERSEY VS. RAMON A. RODRIGUEZ-ALEJO A-0815-09T3

We afforded State v. Marquez, 202 N.J. 485 (2010) pipeline retroactivity and reversed a breathalyzer refusal conviction because the Spanish-speaking defendant was not read the standard form information in Spanish. Although not raised on appeal, we also noted that the conviction was flawed pursuant to our recent holding in State v. Schmidt, 414 N.J. Super. 194 (App. Div. 2010), because he was not read the second portion of the standard form when he did not produce a sufficient breath sample. 03-25-11

State v. Michael Gore (A-77-09)

State v. Michael Gore (A-77-09)

State v. Cleveland, 6 N.J., 316 (1951), is superseded by the New Jersey Rules of Evidence. Rule 803(c)(5) permits the admission of a defendant’s unsigned and unacknowledged transcribed statement, used to refresh a witness’ memory as past recollection recorded, provided there is no objection and all foundational requirements, including Rule 803(b)(1), are satisfied. Although the trial court erroneously permitted the formal confession statement to be moved into evidence after the record had closed, plain error does not exist because there is no reasonable likelihood that admission of the statement caused the jury to reach a conclusion that it otherwise would not have reached.

Discovery expanded for speeding tickets State v Green .mov

Mun Court not bound by another court Order that DWI conviction could not...

Plea to indictable offense barred DWI prosecution based on double jeopar...

DWI defendants entitled to Alcotest machine data State v Maricic .mov

STATE OF NEW JERSEY VS. JAMES D. PENNINGTON A-2637-09T2

STATE OF NEW JERSEY VS. JAMES D. PENNINGTON

A-2637-09T2

Based upon its derivation from the Model Penal Code, we

hold that, when read together, N.J.S.A. 2C:44-5(b)(1) and

N.J.S.A. 2C:44-5(a)(2) prohibit the imposition of a second

extended term on a defendant who is serving an extended term for

a crime committed after the one for which the sentence is being

imposed, subject to the statutory exception for crimes committed

while incarcerated. 03-21-11

not joyriding just to be in car STATE OF NEW JERSEY IN THE INTEREST OF W.G.

not joyriding just to be in car STATE OF NEW JERSEY IN THE INTEREST OF W.G.

Submitted December 13, 2010 - Decided March 17, 2011

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0559-09T4

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FJ-20-1483-09, FJ- 20-1482-09, FJ-20-1760-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Robert J. Cino, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM W.G. appeals from an adjudication of delinquency on a

lesser-included fourth-degree offense of unlawful taking of a means of conveyance, commonly known as joyriding, in violation of N.J.S.A. 2C:20-10(b). Based on our independent review of the record and applicable law, we are constrained to reverse.

On December 21, 2009, at approximately 10:00 p.m., Sergeant John Quick of the New Brunswick Police Department was on patrol when he saw a car proceeding southbound on Route 27 at a high rate of speed. The driver attempted to make a left-hand turn onto Sanford Street, a one-way street, in the wrong direction. Once the driver realized his error, he made a u-turn into oncoming traffic, at which point Quick radioed dispatch and requested a check on the license plate. He was informed the vehicle, a 1994 Honda Accord, had been reported stolen from a parking lot the day before. Quick put on his overhead lights and stopped the car at Sandy and Front Streets. There were four occupants, including W.G. and his brother1 seated in the rear of the vehicle.2 At the time of the stop, the ignition was empty.

When Quick searched the driver, he found a small screwdriver and a key in his right front pocket. Although the key fit the glove box and the trunk, Quick could not insert it in the badly damaged ignition. Starting the motor required the use of an object such as a screwdriver.

Quick testified at trial that, after nineteen years on the police force, he knew the condition of the ignition meant the

1

W.G. and his brother were tried in the same juvenile proceeding. 2 During an unsuccessful effort at entering a guilty plea, W.G. said under oath that he was seated in the front of the vehicle. The officer's recollection was that W.G. was seated in the rear.

2

A-0559-09T4

vehicle was stolen. In fact, Quick described a photograph introduced during his testimony as depicting "an enormous gaping hole in the steering column." As one of the Honda's owners described it, "the place that you turned the key . . . is no longer there. It's just the inside." The other owner testified that the front steering column is visible from the rear.

Defense counsel argued the Rule 3:18-1 motion for acquittal at the close of the State's case based on the theory that the State did not prove the juvenile even knew the car had been stolen. He contended it was not "necessarily reasonable" to assume a person seated in the rear of even a relatively small car at 10:00 p.m. would have noticed the condition of the steering column. He therefore urged the court to acquit W.G. both of receiving stolen property as well as the lesser-included offense of joyriding.

The court denied the Rule 3:18-1 application and adjudicated W.G. delinquent pursuant to subsection (b) of the unlawful taking of a means of conveyance statute: "A person commits a crime of the fourth degree if, with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent." N.J.S.A.

3

A-0559-09T4

2C:20-10(b). Now on appeal, the following points are advanced

on behalf

of the juvenile:

POINT I NO LEGAL BASIS EXISTED TO FIND BEYOND A REASONABLE DOUBT THAT THE JUVENILE HAD ACTED WITH PURPOSE TO WITHHOLD A MOTOR VEHICLE TEMPORARILY FROM THE OWNER BY TAKING, OPERATING OR EXERCISING CONTROL OVER THE CAR IN VIOLATION OF N.J.S.A. 2C:20-10b

POINT II THE LOWER COURT SHOULD HAVE GRANTED DEFENSE COUNSEL'S MOTION TO DISMISS THE COMPLAINT AT THE END OF THE STATE'S CASE

POINT III THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE ADJUDICATION FOR JOY-RIDING, ESPECIALLY GIVEN THE SPARSE RECORD IN THIS TRIAL. (Not Raised Below)

POINT IV THE LOWER COURT COMMITTED PLAIN ERROR BY FINDING THAT THE JUVENILE WAS GUILTY OF THE OFFENSE OF JOY-RIDING. (Not Raised Below)

POINT V REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE JUVENILE OF JUSTICE

The juvenile first contends that pursuant to State v. McCoy, 222 N.J. Super. 626, 633-34 (App. Div. 1988), aff’d, 116 N.J. 293 (1989), the judge's acquittal on the original charge alleged in the complaint, namely, receiving stolen property, N.J.S.A. 2C:20-7(a), makes his finding of guilt pursuant to N.J.S.A. 2C:20-10(b) logically inconsistent. The judge specifically found the juvenile did not "acquire[] possession,

4

A-0559-09T4

control, or title of the car," nor did he have "any intent to possess or control the motor vehicle, let alone acquire title to it."

Despite this conclusion, reasonable in light of the void in the State's proofs, the judge went on to state "everyone in the car . . . knew it to be stolen and in participating in using it through their mere presence purposely withheld it. . . ." Yet, the "purpose to withhold temporarily from the owner" required by subsection (b) necessarily involves acts including the unauthorized taking, operation, or exercise of control over a motor vehicle. It is not reasonable to equate the mere act of being a passenger in a motor vehicle known to be stolen with any of these activities.

In contrast, subsection (d) of the statute states: "[a] person commits a crime of the fourth degree if he enters and rides in a motor vehicle knowing that the motor vehicle has been taken or is being operated without the consent of the owner or other person authorized to consent." N.J.S.A. 2C:20-10(d). The language of that section clearly applies to this scenario. Here, the State proved only that the juvenile must have known the Honda was stolen because of the condition of the ignition and the use of an object, as opposed to a key, to start the car.

5

A-0559-09T4

The judge's factual findings necessarily mean the juvenile could have been adjudicated delinquent only of the offense of joyriding as a passenger, subsection (d), which can be a lesser- included offense of receiving stolen property. See State v. Moore, 330 N.J. Super. 535, 543-45 (App. Div.), certif. denied, 165 N.J. 531 (2000). Subsection (b), however, requires a "purpose to withhold temporarily from the owner," which the judge had specifically found absent from the State's case.

In general, criminal defendants may be retried following the reversal of their conviction on appeal. See N.J.S.A. 2C:1- 9(c); State v. Lane, 279 N.J. Super. 209, 214 (App. Div.), certif. denied, 141 N.J. 94 (1995). Double jeopardy considerations preclude this option where a reviewing court bases its decision on "'a failure of proof at trial'" rather than "trial error." State v. Millett, 272 N.J. Super. 68, 97 (App. Div. 1994) (quoting Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1, 12 (1978)). The distinction rests on the fact that "[a] reversal for trial error never constitutes a decision that the State failed to prove its case, and therefore implies nothing with respect to the defendant's guilt or innocence." Ibid.

The question we must therefore decide is whether the court's mistaken adjudication of guilt constitutes a "failure of

6

A-0559-09T4

proof" or mere "trial error." See State v. Tropea, 78 N.J. 309, 313-14 (1978) (adopting the Burks distinction between trial errors and failures of proof). Reversals springing from trial errors reveal only the existence of a "defective" process, after which "the accused has a strong interest in obtaining a fair readjudication of his guilt free from error" and "society maintains a valid concern for insuring that the guilty are punished." Burks, supra, 437 U.S. at 15, 98 S. Ct. at 2149, 57

L. Ed. 2d

at 12. In contrast, an evidentiary reversal

means that the government's case was so lacking that it should not have even been submitted to the jury. . . . [and] it is difficult to conceive how society has any greater interest in retrying a defendant when . . . it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.

[Id. at 16, 98 S. Ct. at 2150, 57 L. Ed. 2d at 12-13.]

Because the State could not prove anything more juvenile's presence in a patently stolen motor vehicle, we believe the failure is one of proof and not process, and that the double jeopardy clause bars retrial. Because no purposeful conduct was proven beyond the intent to hitch a ride in a stolen car, the State did not prove the elements of the subsection (b) offense. The State did not prove appellant's unauthorized taking, operation, or control, or the purpose to withhold

7

A-0559-09T4

than the

temporarily from the owner. Accordingly, we will not reach the juvenile's other points, made moot by our conclusion.

Reversed.

8

A-0559-09T4

STATE OF NEW JERSEY VS MELANIE McGUIRE A-6576-06T4

STATE OF NEW JERSEY VS MELANIE McGUIRE A-6576-06T4

Defendant's conviction and life sentence are affirmed on charges including murdering her husband and desecrating his body. Among the issues discussed in the opinion are: (1) admissibility of expert testimony, including tool mark analysis, that matched garbage bags in which sections of the body were found with ones used by defendant in her apartment; (2) exclusion of testimony about a statement the victim allegedly made several months before his death, proffered by the defense under the hearsay exceptions for state of mind and statements against penal interest, N.J.R.E. 803(c)(3) and 803(c)(25); (3) alleged prosecutorial misconduct in summation, in which the prosecutor commented about the excluded defense evidence and also speculated about some facts without adequate support in the circumstantial evidence; and (4) jurors' knowledge of an internet Court TV message board and of blogs discussing the jurors. 3-16-11

STATE OF NEW JERSEY v. BOYCE SINGLETON, JR. A-1782-08T4

STATE OF NEW JERSEY v. BOYCE SINGLETON, JR. A-1782-08T4 02-28-11

At trial, defendant did not dispute shooting and stabbing the victim to death but instead asserted an insanity defense. Defendant testified and presented other evidence to suggest his murderous actions were brought about by a delusional deific command. In appealing his conviction, defendant argued that the jury instructions were incomplete. Even though defendant did not make this argument until he filed a post-trial motion, the court reversed and remanded for a new trial because the absence of the amplified instruction required in these circumstances by State v. Worlock, 117 N.J. 596 (1990), and State v. Winder, 200 N.J. 231 (2009), was capable of producing an unjust result. In such an instance, a judge must instruct that a defendant may not be held responsible -- even if he understands his actions are contrary to law -- where a delusional deific command could be objectively recognized to confound his understanding of the difference between lawful behavior and a moral imperative.

C.M.F. v. R.G.F. A-4826-08T2

C.M.F. v. R.G.F. A-4826-08T2

Defendant admittedly shouted offensively coarse names at his wife at their children's basketball game but argued that he was motivated by anger rather than an intent to harass her. Pursuant to State v. Hoffman, 149 N.J. 564 (1997) and N.J.S.A. 2C:33-4(a), the requisite intent was "to disturb, irritate or bother." We affirm the final restraining order against defendant because his anger did not negate an intent to harass and, considering the totality of the circumstances, the evidence supported the conclusion that defendant's purpose in directing the offensively coarse language at plaintiff was to harass her. 2-25-11

DOUGLAS TRAUTMANN, ET AL. v. CHRIS CHRISTIE, ETC. A-3139-09T3

DOUGLAS TRAUTMANN, ET AL. v. CHRIS CHRISTIE, ETC. A-3139-09T3

This appeal challenges Chapter 37 of the Laws of 2009 which requires a driver under the age of twenty-one who holds a permit or provisional license to display a decal so indicating on the automobile he or she drives. We hold that a person's age or age group is not "personal information" protected under the Federal Drivers Privacy Protection Act, 18 U.S.C.S. §§ 2721-2725 and that Chapter 37 is therefore not preempted by the federal act. We also reject allegations that Chapter 37 violates the affected driver's rights to equal protection and freedom from unreasonable search and seizure. 2-22-11

STATE OF NEW JERSEY v. EMMANUEL MERVILUS A-5812-07T3

STATE OF NEW JERSEY v. EMMANUEL MERVILUS A-5812-07T3

Admission of a polygraph expert's testimony, which was couched in terms of "innocent" and "guilty" test takers, was plain error and warranted reversal of defendant's conviction. If the State intends to rely on polygraph test results at the retrial, it must first establish the reliability of polygraph evidence at a Frye hearing, as required by State v. A.O., 198 N.J. 69 (2009). 02-15-11

State v. Dashawn Miller (A-94-09)

State v. Dashawn Miller (A-94-09)

(1) The trial court did not err in replaying video- recorded witness testimony at the jury’s request; (2) the jury charge concerning defendant’s decision not to testify was not plain error; and (3) the court mistakenly did not address the Yarbough factors and its reasoning for imposing consecutive sentences cannot be sufficiently discerned from the record. Thus, defendant’s conviction is affirmed and the case is remanded for resentencing.

State v. Jason Shelley (A-109-09)

State v. Jason Shelley (A-109-09)

The Appellate Division correctly vacated defendant Jason Shelley’s conviction under N.J.S.A. 2C:35-7 for distributing illicit drugs within 1,000 feet of a school because the inclusion of a small kindergarten class in a day care center does not transform the center into an elementary school for purposes of construing and applying the statute.

State v. Jamiyl Dock (A-8-10)

State v. Jamiyl Dock (A-8-10)

Artwell’s ruling presumptively banning the use of

restraints on witnesses constitutes a new rule of law

with prospective application 3-8-11

State v. Eduardo McLaughlin (A-68-09)

State v. Eduardo McLaughlin (A-68-09)

Because the state of mind of the declarant of the

hearsay offered here was not directly relevant to the

prosecution of defendant and the hearsay statement

itself, without redaction, imputed to defendant the

intent to commit a crime, its admission was error. 3-3-11

STATE OF NEW JERSEY VS. DIANE O'BRIEN A-4190-09T2

STATE OF NEW JERSEY VS. DIANE O'BRIEN

A-4190-09T2 02-10-11

The question presented is whether a defendant who

previously received supervisory treatment under the conditional

discharge statute, N.J.S.A. 2C:36A-1, and who later applied for

and obtained an order vacating the conditional discharge, may

thereafter be admitted into PTI. We answer the question in the

negative, concluding that N.J.S.A. 2C:43-12g and Rule 3:28,

Guideline 3(g) prohibit any person previously placed into

supervisory treatment under the conditional discharge statute

from subsequent admission into PTI, whether the conditional

discharge is later vacated or not.

STATE v. FRENSEL GAITAN A-0197-09T4

STATE v. FRENSEL GAITAN

A-0197-09T4 02-07-11

Defendant filed a petition for post-conviction relief,

arguing his attorney failed to discuss with him the deportation

consequences of his guilty plea. The trial judge denied the

petition, concluding without the benefit of an evidentiary

hearing that defendant's responses to the plea form as well as

his testimony at the plea hearing demonstrated he understood the

deportation consequences. In reversing that determination, the

court also considered the impact of Padilla v. Kentucky, 559

U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and State v.

Nuñez-Valdéz, 200 N.J. 129 (2009), both of which were decided

after defendant pled guilty and after his PCR petition was

denied.

The court recognized that certain aspects of Padilla --

namely, its holding that counsel's failure to give any

deportation advice is no different than the rendering of bad

deportation advice, and its holding that the direct/collateral

methodology regarding deportation advice had never applied to

Sixth Amendment claims of ineffectiveness -- did not create new

rules insofar as the Sixth Amendment is concerned. Because

defendant was entitled to the benefit of that federal rule, the

argument that Nuñez-Valdéz's rejection of the direct/collateral

methodology as a matter of New Jersey constitutional law

constituted a new rule was irrelevant in determining whether

defendant received the effective assistance of counsel when he

pled guilty.

The court also concluded that Nuñez-Valdéz should at least

be given pipeline retroactivity, and that defendants with

appeals pending from the denial of post-conviction relief at the

time Nuñez-Valdéz was decided are entitled to the benefit of its

holding. As a result, defendant was entitled to a hearing on

the claims set forth in his PCR petition, and the court remanded

for that purpose.

STATE OF NEW JERSEY v. THOMAS J. SHANNON A-2549-08T4

STATE OF NEW JERSEY v. THOMAS J. SHANNON

A-2549-08T4

We reverse defendant's conviction of possession of cocaine,

finding his motion to suppress the cocaine found in a

warrantless search of his Jeep should have been granted. The

search was not incident to arrest, did not occur late at night,

the stop was in a residential area, and four Asbury Park Police

Officers were at the scene with defendant, who was alone. We

find no exigency existed pursuant to State v. Pena-Flores, 198

N.J. 6 (2009). 02-03-11

State v. William Acevedo, Jr. (A-95-09)

State v. William Acevedo, Jr. (A-95-09)

Defendant’s sentence was not “illegal” and therefore not subject to modification on PCR.