STATE v. MARLON SIMON, a/k/a KEVIN ROBINSON,

STATE

v.

MARLON SIMON, a/k/a

KEVIN ROBINSON,

            Defendant-Appellant.

 NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

                                                                                    SUPERIOR COURT OF NEW JERSEY

                                                                                    APPELLATE DIVISION

                                                                                    DOCKET NO.  A-0599-08T2

______________________________

May 2, 2012

 

Submitted December 14, 2011 - Decided

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-04-00726.

Joseph E. Krakora, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

            Following denial of his motion to suppress evidence, defendant pled guilty to count three of a six-count indictment: third degree possession of a controlled dangerous substance (CDS) within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7.  The judge imposed a six-year term of imprisonment subject to a three-year period of parole ineligibility.  The judge also imposed the appropriate fines, penalties and assessments.

            On appeal, defendant raises the following argument:

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO SUP[P]RESS EVIDENCE BECAUSE THE FACTS OF THIS CASE MEET NEITHER THE SEARCH INCIDENT TO ARREST NOR THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT.

We affirm in part and reverse in part.

            On January 8, 2006, around 9 p.m., Sergeant John Gillen, a twenty-eight year veteran of the Jersey City Police Department and a ten-year veteran of the Narcotics Squad, received a telephone call from a reliable informant.  Gillen learned that a delivery of cocaine in $10 vials would occur at a tavern on Lembeck Avenue.  According to the informant, an unidentified person at the tavern would place a telephone call and a black male, known as Marlon, would respond with the cocaine.  Marlon would be driving either a black Cadillac with tinted windows and "fancy wheels" or a beige four-door Buick Century.

            Based on this information, Gillen established surveillance with perimeter units at the tavern.  Officer Michael Burgess and Detectives Matos and Marrero were involved in the surveillance operation.  Two other officers, Goodman and Lugo, may also have been involved.  All were in plain clothes.  Gillen observed the front door of the tavern, which faced a corner illuminated by street lights, from a squad car parked fifty to one hundred feet from the front door.  

            At approximately 9:20 p.m., Gillen observed co-defendant Thomas Thompson open the front door of the tavern and stand on the front steps.  Thompson placed two or three telephone calls.  Approximately ten minutes later, Gillen observed a beige four-door Buick Century stop at the corner.  Thompson entered the front passenger seat of the car and the Buick pulled away from the corner.  Gillen notified the surveillance units of the arrival and departure of the beige Buick, and followed the Buick keeping approximately ten car lengths between the cars.  Burgess and Matos were in another vehicle near Romar Avenue; Marrero followed Gillen's vehicle.

            Gillen saw the Buick stop on Lembeck Avenue near Our Lady of Mercy School.  A white male entered the back passenger side seat of the Buick.  The car turned left on Pearsall Avenue, drove to mid-block and stopped.  Burgess observed the white male in the back passenger side seat leave the Buick and run into an alleyway.  Gillen made the same observation.

            Gillen directed the other vehicles to stop the Buick at the corner of Romar and Pearsall.  Matos and Marrero pulled in front of the Buick; Gillen pulled up behind the Buick.  As they did so, the officers exited their vehicles and announced they were police.  Gillen approached the passenger side of the Buick; Burgess approached the front passenger door; Matos approached the front of the Buick; and Marrero the driver's side door.  Observing movement inside the Buick, Burgess opened the front passenger door.  Using his flashlight, Burgess observed Thompson in the front seat clutching vials with green tops in his hand.  Burgess suspected the vials contained cocaine, informed the other officers Thompson was "positive," and arrested Thompson.  As he did so, Burgess advised him of his Miranda[1] rights, and recovered ten green-capped clear vials containing the suspected cocaine from Thompson.

            Marrero removed defendant from the driver's seat of the Buick and placed him against the back passenger door.  Gillen walked from the front of the Buick to the driver's side of the Buick, looked inside and then reached under the front seat. There, Gillen found a plastic bag containing four bundles of thirty-nine vials containing a white substance, which he suspected was cocaine.  The bundles were wrapped in elastic bands.  At that point, Gillen ordered Marrero to place defendant in handcuffs and advise him of his Miranda rights.  Gillen proceeded to search the rest of the car finding a brown paper bag containing a box with 1000 new vials and green caps on the back passenger seat.

            Gillen described the neighborhood as residential, "regular," with small businesses, delis, bars and houses.  He did not consider it a high-crime or drug-infested neighborhood.  At least four officers stopped and detained defendant and his passenger.  Two other officers might have been nearby.

            In support of his motion to suppress the evidence seized in the stop, defendant argued the police lacked probable cause or a reasonable articulable suspicion to stop the car.  Although the judge found Gillen and Burgess credible, he held the police lacked probable cause to stop the Buick.  The judge observed that "much of the information was essentially benign."  The judge did, however, hold that the police had a reasonable articulable suspicion to stop the car.  The judge also found the reasonable articulable suspicion to stop and the covert movements by the occupants observed once stopped justified opening the passenger door.  At that point, the judge found the controlled dangerous substance was in plain view in the passenger's hands, which in turn supported the removal of the co-defendant from the car and his arrest.

            Turning to defendant, the judge found that possession of the suspected cocaine by the co-defendant also made the arrest of defendant inevitable because "the police now had probable cause to believe that Thompson had just recently purchased those drugs from [defendant]."  The judge found that defendant was not handcuffed but "clearly under arrest" when Gillen placed his hand under the driver's seat looking for more drugs and a weapon.  The judge found that "at this point in time Sgt. Gillen certainly had probable cause to believe that that there were more drugs in the car."  The judge recognized, however, that probable cause did not justify a warrantless search of the car in the absence of exigent circumstances.

            The judge proceeded to find that there may have been as many as eight officers at the scene, defendant and Thompson "appeared to have been submissive at all times," the police were not outnumbered or shorthanded, and they were in a residential neighborhood.  The judge also noted the absence of any "testimony that third parties would have tried to move in on the stopped Buick and remove the drugs."  In sum, the judge found the State had not proven exigent circumstances to permit the warrantless search of the car.  The judge then proceeded to find that the warrantless search of the car was justified as a search incident to the arrest of the driver and passenger.  He cited the proximity of both men to the car and "[defendant] being manacled" as the two most important factors establishing that the warrantless search of the car was "truly incident to arrest."

            On appeal, defendant renews his arguments that the officers lacked probable cause to stop the Buick and, once stopped, the evidence did not support the automobile exception to the warrant requirement, and the warrantless search of the interior of the car exceeded the permissive scope of a search incident to arrest.  The State responds the motor vehicle stop was supported by a reasonable articulable suspicion of criminal activity.[2]  The State also contends the behavior of the occupants following the stop provided probable cause to arrest the occupants and justification to search them and the vehicle.  Finally, the State contends the search of the vehicle was lawful under the automobile exception to the warrant requirement.

            The findings of fact of the motion judge are entitled to great deference from this court, "'so long as those findings are supported by substantial credible evidence . . . .'"  State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)).  His findings of fact can only be overturned when the findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'"  Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).  Additionally, this court should defer to the credibility determinations of the trial court.  State v. Locurto, 157 N.J. 463, 474 (1999).  The judge's interpretation of the law, however, is not entitled to any special deference by this court.  State v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006).

            Although the motion judge found Gillen and Burgess credible, he held that the facts related by them did not establish probable cause to stop the Buick.  We agree.  He also held that Gillen had an reasonable articulable suspicion to order Burgess and Matos to stop the car.  We agree.

"Consistent with the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, police officers must obtain a warrant from a neutral judicial officer before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'"  State v. Deluca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)).  Exceptions to the warrant requirement include an investigatory stop, State v. Stovall, 170 N.J. 346, 356 (2002); a search incident to arrest, State v. Pierce, 136 N.J. 184, 208, 214-15 (1994); and an automobile search, State v. Pena-Flores, 198 N.J. 6, 28 (2009).  The burden is on the State to prove by a preponderance of the evidence the existence of an exception.  State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, ____ U.S. ___, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009).

            A stop of a motor vehicle is lawful if based on a reasonable articulable suspicion that a criminal or quasi-criminal behavior has been or is being committed.  State v. Carty, 170 N.J. 632, 639-40, modified by 174 N.J. 351 (2002).  Reasonable suspicion of criminal or quasi-criminal behavior requires "'some minimal level of objective justification' for making the stop."  United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989) (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S. Ct. 1758, 1763, 80 L. Ed. 2d 247, 255 (1984)).  Any determination of the existence of reasonable suspicion to support a stop is highly fact-sensitive, State v. Nishina, 175 N.J. 502, 511 (2003), and must be more than an officer's suspicion or hunch, Sokolow, supra, 490 U.S. at 7, 109 S. Ct. at 1585, 104 L. Ed. 2d at 10.

            The court may consider an informant's tip in determining whether the officer had reasonable suspicion to stop the defendant.  Amelio, supra, 197 N.J. at 212.  Under the totality of circumstances test, the informant's veracity and the basis of his or her knowledge are the two most important factors in evaluating the information relayed to the police.  State v. Sullivan, 169 N.J. 204, 212 (2001); State v. Smith, 155 N.J. 83, 95, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998).  In addition, police must corroborate the received information.  Smith, supra, 155 N.J. at 95.

            Here, Gillen received information from an informant, who had proved reliable in the past, about the place at which a drug transaction would occur and some detail about how the transaction would be effected.  He also received specific information about the make and model of the motor vehicle that the distributor would likely utilize.  The informant also told Gillen that a person in the tavern would summon defendant by telephone.  Consistent with the information provided to Gillen, a person came outside the tavern, made a telephone call, and within ten minutes one of the cars described by the informant appeared on the scene.

            The motion judge found the actual events of the evening benign or nothing out of the ordinary.  But for the information relayed to Gillen, nothing that occurred that evening would provide anyone with a reasonable suspicion of criminal activity.  People go to bars and make telephone calls to other people for a ride home or someplace else.  The difference in this case is that the police had received information that a drug transaction would occur that evening at that tavern and the distributor of the drugs would be summoned to the scene by someone from the tavern.  In addition, the distributor would arrive in one of two described vehicles.  The police were able to corroborate the information provided to them by the informant.  Once the driver and the person, who had called the driver to the scene, picked up a third person, who quickly left the vehicle and fled down an alley, the police had a reasonable articulable suspicion authorizing them to effectuate a stop, even though it fell short of probable cause.

            The analysis does not cease with the stop.  The motion judge also found that the officers observed suspicious activity in the front seat after the stop.  We discern no basis to disturb this factual finding.  Based on their observations following the stop, Burgess also had a reasonable articulable suspicion to open the passenger door.  See State v. Mai, 202 N.J. 12, 23, 25 (2010) ("Plain logic demands that the principles that govern whether a passenger of a vehicle lawfully can be ordered out of the vehicle must apply with equal force to whether a police officer is entitled, as a corollary and reasonable safety measure, to open the door as part of issuing a proper order to exit."); State v. Matthews, 330 N.J. Super. 1, 6 (App. Div. 2000)("Since the officer was entitled to order [the] defendant out of the car, he was equally entitled to open the door to accomplish that object.").  Once he did so, he observed vials of suspected cocaine clutched in the passenger's hands.  Having seen suspected contraband in plain view, the police had probable cause to arrest not only the front seat passenger but also the driver.  See Mai, supra, 202 N.J. at 26 ("The plain view discovery of the firearm" located on the passenger floor "provided sufficient probable cause to arrest [the passenger], that is, that there was probable cause to believe that a crime had been committed and that [the passenger] had committed that crime.").

A search incident to arrest, however, does not authorize a limitless search of the surroundings.  An officer is permitted to conduct "a search of the arrestee's person and the area 'within his immediate control'" meaning "the area from within which he might gain possession of a weapon or destructible evidence."  Chimel v. Cal., 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969); State v. Henry, 133 N.J. 104, 118, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993).

In New Jersey, "[o]nce the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception is inapplicable."  State v. Eckel, 185 N.J. 523, 541 (2006).  Therefore, Chimel only applies where the officer arrests the defendant, but has yet to remove and secure him.  Ibid.  In such a case, the reviewing court must "determine, on a case-by-case basis whether [the defendant] was in a position to compromise police safety or to carry out the destruction of evidence, thus justifying resort to the search incident to arrest exception."  Ibid.  Thus,

the arrestee's freedom of movement and the passage of time become the controlling factors. . . . 

            The relevant facts, then, appear to be those which disclose what places the person under arrest presently could reach at the time the arrest is undertaken and how likely it is that he would attempt resistance or escape or destruction of evidence. Important considerations are whether the arrestee has been placed under some form of restraint, the positions of defendant and the arresting officer in relation to the vehicle,   the difficulties to be encountered in gaining access to the vehicle or to the particular area therein searched, and the number of officers present as compared with the number of persons arrested or bystanders in the immediate vicinity.

[State v. Welsh, 84 N.J. 346, 355 (1980).]

Here, Marrero detained defendant by placing him against the rear driver's side door.  Although defendant was not handcuffed, he was under arrest.  Within minutes, and with defendant still located at the rear driver's side door, Gillen looked inside the driver's compartment and reached under the driver's seat to search for weapons or drugs.  Under the seat, Gillen found a plastic bag containing thirty-nine vials of a white substance, which he suspected was cocaine.  Gillen then directed Marrero to place defendant in handcuffs and advise him of his Miranda rights.  Thereafter, Gillen searched the rest of the Buick and found a brown paper bag on the back passenger seat containing a box that held 1000 new green caps and 1000 new vials. 

            Here, Gillen's initial search of the driver's seat and the area under the driver's seat was permissible as a search incident to arrest.  Although defendant had been detained, he had not been handcuffed and had not been removed from the scene.  In fact, he remained in close proximity to the Buick.  Under these circumstances, concerns for police safety had not been completely assuaged and justified a limited search of the area around the driver's seat.  

            These concerns did not justify a broader search incident to defendant's arrest.  The broader search of the back seat of the automobile that yielded the bag containing 1000 unused vials and green tops was not justified by the automobile exception.  The motion judge held that exigent circumstances did not exist to support the broader search of the automobile.  We agree.

            Exigent circumstances must exist before the automobile exception to the warrant requirement is justified.  State v. Birkenmeier, 185 N.J. 552, 562-63 (2006) (citing State v. Dunlap, 185 N.J. 543, 549 (2006)).   This rule was re-affirmed in the automobile exception test articulated by the Court in Pena-Flores, supra, 198 N.J. at 28.  The Court held that a warrantless search pursuant to the automobile exception is appropriate so long as "(1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant."  Ibid. (citations omitted). 

            Whether exigent circumstances exist to permit a warrantless search in the face of probable cause depends upon the facts of the individual case.  Ibid.  In fact, in Pena-Flores, the Court examined two cases and reached a different result in each case.  Juan Pena-Flores and co-defendant Fausto Parades were stopped for a motor vehicle violation late at night in a heavily traveled area.  Id. at 12-13.  A limited number of officers were on duty at that time.  Id. at 13. The arresting officer testified he considered the circumstances unsafe to either leave the vehicle unguarded or to await issuance of a search warrant.  Ibid. 

            Charles Fuller, the defendant in the companion case, was stopped for a motor vehicle violation on a busy street in Camden in the early afternoon.  Id. at 14.  The area was crowded with passersby.  Id. at 15.  Fuller was ordered out of the car when the trooper learned that the bill of sale produced by Fuller and the Pennsylvania license plates on the car were associated with another vehicle.  Id. at 16.  The trooper arrested Fuller for displaying a false driver's license and hindering his apprehension.  Ibid.  A search of Fuller produced two large bundles of money.  Ibid.  After Fuller was placed in the police cruiser, the arresting trooper and another trooper, who had responded to the scene, searched the interior of Fuller's car.  Ibid.  They found a loaded handgun wedged between the console and driver's seat and money and prescription drugs in the console, marijuana in a dashboard compartment, and a sword in the backseat.  Ibid.

            As to Pena-Flores, the Court held that the officer confronted exigent circumstances to justify the search of the vehicle occupied by him and his passenger.  Id. at 30-31.  The Court noted that the stop was unexpected, the officer had no reason to believe he would encounter criminal behavior, and stopped the car late at night for a motor vehicle violation.  Id. at 30.  The Court also emphasized that Pena-Flores and Parades were not under arrest, the windows of the car were heavily tinted preventing observation of the interior of the car through the windows, and only one other officer was at the scene.  Ibid. 

            By contrast, the Court held that the search of the dashboard compartment and backseat of Fuller's vehicle was not justified, and the products of the search beyond the front seat and console were subject to suppression.  Id. at 31-32.  The Court emphasized that Fuller had been arrested and secured in the backseat of the police cruiser.  Id. at 32.  The record was devoid of any evidence of nearby cohorts who could have gained access to the vehicle.  Ibid.  Moreover, the arrival of three troopers on the scene following the initial stop demonstrated that there were ample resources to secure the car while a search warrant could be obtained.  Ibid. 

            What circumstances constitute exigent circumstances to justify a warrantless search of the vehicle has been the subject of much discussion.  In fact, the Court recently heard oral argument in five cases involving the application of the Pena-Flores rule:  State v. Shannon, 419 N.J. Super. 235 (App. Div. 2011), appeal dismissed, ___ N.J. ___ (2012); State v. Shannon, No. A-5821-08 (App. Div. Apr. 27, 2011), appeal dismissed, ___ N.J. ___ (2012); State v. DeShazo, No. A-2856-09 (App. Div. April 27, 2011), appeal dismissed, ___ N.J. ___ (2012); State v. Crooms, No. A-4118-09 (App. Div. May 11, 2011), appeal dismissed, ___ N.J. ___ (2012); and State v. Minitee, 415 N.J. Super. 475 (App. Div. 2010), appeal dismissed ___ N.J. ___   (2012).  In Shannon, we held that exigent circumstances did not exist to justify a warrantless search of a vehicle when four of the five squad cars in the community responded to a call for assistance in a residential area in the early evening.  419 N.J. Super. at 243.  In addition, there was no suggestion that an officer could not have sought a telephonic search warrant or that the vehicle or its contents were in danger.  Ibid.  Similarly, in Minitee, we held that no exigency existed to conduct a warrantless search of the vehicle at the police station.  415 N.J. Super. at 488.  Citing the need for a fully developed record concerning the issue presented by Pena-Flores, including application for a search warrant by telephone from the field, the Court vacated certification in each case following oral argument to permit development of a full record to consider the application of Pena-Flores, thereby highlighting the fact sensitive nature of the exception.

            Here, we conclude that the totality of the circumstances place this case significantly closer to the facts accompanying the arrest of Fuller, Shannon and Minitee than to Juan Pena-Flores.  Defendant and his co-defendant had been arrested and handcuffed.  There were at least four officers on the scene and perhaps more.  There is no testimony that there was a shortage of manpower or that other police business required their attention.  In addition, the stop occurred in a residential neighborhood not a crime-riddled, drug-infested neighborhood.  Furthermore, there was no suggestion that third parties might arrive to take the car or remove its contents.  Under these circumstances, we hold that there was no justification to support the search of the motor vehicle beyond the immediate area of the driver's seat and certainly not the backseat of the Buick.

            This disposition may not effect the plea entered by defendant.  He remains free to file a motion to withdraw his guilty plea.  We express no opinion on the merits of such a motion.

            Affirmed in part; reversed in part.

             

---

[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

[2] The State does not argue in this appeal that it adduced sufficient evidence to establish probable cause to stop the vehicle.

STATE VS. DIANA M. PALMA A-3473-10T3

STATE VS. DIANA M. PALMA  A-3473-10T3

On appeal from a trial de novo in the Law Division, we reverse and remand for resentencing consistent with the principles established in State v. Moran, 202 N.J. 311 (2010).  We hold that the imposition of a custodial sentence for careless driving, N.J.S.A. 39:4-97, requires a finding of aggravating circumstances evincing as "a matter of degree" more than mere carelessness, and that the tragic death of the victim, resulting from a motor vehicle violation, is not dispositive of whether a custodial sentence is appropriate under the circumstances. 06-26-12

IN THE MATTER OF THE EXPUNGEMENT PETITION OF J.B. A-1564-11T2

IN THE MATTER OF THE EXPUNGEMENT PETITION OF J.B.

 A-1564-11T2

In this appeal from the denial of a petition to expunge juvenile adjudications and an adult conviction, we construe the 1980 statute permitting expungement of juvenile adjudications.  L. 1980, c.  163, codified at N.J.S.A. 2C:52-4.1.  We conclude the trial court misinterpreted the unnumbered paragraph in N.J.S.A. 2C:52-4.1(a), "For purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult." In view of the legislative history of the 1980 statute, and canons of statutory construction, we construe the quoted

sentence to apply only to applications to expunge juvenile  adjudications under N.J.S.A. 2C:52-4.1(a).  The 1980 law was intended to allow expungement of juvenile adjudications, which was not otherwise permitted; there was no evidence the Legislature intended to make expungement of adult convictions more difficult by treating juvenile adjudications as if they were adult convictions.

Applying our reading of the statute, petitioner was entitled to expungement of his entire record of multiple juvenile adjudications under N.J.S.A. 2C:52-4.1(b).  Also, although the court mistakenly applied the quoted sentence to render petitioner's juvenile adjudications equivalent to adult convictions, the court correctly denied the petitioner to expunge the adult conviction because it was filed less than ten years after completion of the sentence, N.J.S.A. 2C:52-2(a), and petitioner failed to establish that expungement after just five years was "in the public interest," N.J.S.A. 2C:52-2(a)(2). 06-21-12

STATE VS. THOMAS NEVIUS A-5438-07T4

STATE  VS. THOMAS NEVIUS

 A-5438-07T4

At issue is the admissibility under N.J.R.E. 803(c)(25) (declarations against interest) of an out-of-court statement by a defendant's non-testifying confederate that supposedly implicated the declarant in a felony murder and exculpated defendant by naming another as the co-perpetrator of the crime.

 We upheld the trial court's exclusion of the statement, finding no abuse of discretion in the evidentiary ruling or due process violation.  We concluded that the so-called inculpatory portion was actually self-serving and unreliable as it tended to dilute or excuse the declarant's criminal culpability by placing the blame on another.  But even if considered self- incriminating, the so-called exculpatory portion of the statement neither strengthened nor bolstered the inculpatory effect of the declarant's allow it to be admissible. 06-18-12

STATE VS. MARLTON PLAZA ASSOCIATES A-2164-10T4

STATE  VS. MARLTON PLAZA ASSOCIATES

 A-2164-10T4

 As to the scope of damages awardable to condemnees at a just compensation trial where a highway improvement project involves both a modification of highway access and a

condemnation, we held that a claim for damages arising from the internal effects of the access modification, (i.e., diminution in value due to impacts caused by poor vehicle maneuverability), which the property owners consented to and left them with

reasonable alternate access, may not be appropriately considered in the condemnation trial concerning the State's acquisition phase. 06-08-12

STATE VS. PATRICK DEFRANCO A-2054-10T4

STATE VS. PATRICK DEFRANCO A-2054-10T4

 We held that a defendant school teacher, who had previously sexually assaulted a student, did not have a reasonable expectation of privacy in his cell phone number when, at an earlier time, he had given his prior number to the student, did not seek to hide the new number from him, and had disclosed the number to the school for inclusion in its Staff Directory and to multiple parents and students in connection with a school trip

that defendant was chaperoning.  We found further that the school's Resource Officer, a policeman functioning in that dual capacity, who was aware of the student's allegations of sexual assault, acted reasonably in requesting the number from the secretary to the school's principal, and that the school acted reasonably in disclosing the number to the officer.  As a consequence, we affirmed the trial court's decision to deny defendant's motion to suppress the transcript of a telephone call between him and the student that was intercepted by the police as a means for corroborating the student's claim of sexual assault while a juvenile. 06-08-12

STATE VS. RENARD JOSEPH A-5651-09T1

STATE VS. RENARD JOSEPH A-5651-09T1

 

In this appeal of a defendant's triple armed robbery convictions where identification was a principal issue, we held that despite the lack of expert testimony, a proper foundation

was laid for the computer-based photo retrieval system used to obtain the three victims' out-of-court identifications and that such a procedure, akin to a mug shot book, was not invalidated by police failure to record and retain the photographs viewed by the witnesses. 06-04-12

STATE VS. RAYMOND D. KATES A-3907-10T1

STATE VS. RAYMOND D. KATES

A-3907-10T1

We conclude the trial court mistakenly exercised its discretion in denying defendant a continuance to enable him to retain counsel of his choice, after he learned on the eve of

trial that the assistant deputy public defender who had been representing him was about to deployed for active military service.  Although the right to counsel of choice is not

absolute and may be balanced against the court's interest in managing its calendar, the trial court failed to weigh the appropriate factors governing the discretionary decision whether

to grant the requested continuance.  The availability of competent counsel not of defendant's choice was an insufficient basis for denying the continuance.  As deprivation of counsel of choice is a structural error not subject to harmless error analysis, reversal of defendant's conviction and a new trial is mandated. 05-25-12

STATE VS. EDWARD RONALD ATES A-2308-09T3

STATE  VS. EDWARD RONALD ATES

  A-2308-09T3

Defendant appealed his conviction for the murder of his ex-son-in-law, arguing the unconstitutionality of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34, because it permitted the interception of telephone calls between individuals located entirely outside New Jersey.  The court rejected this argument, finding no infirmity so long as the listening post was located in New Jersey.

 Defendant also argued that the State should have been barred from using all intercepted telephone calls because the State recorded a telephone call between defendant and his

attorney.  The trial judge precluded the use only of the calls intercepted after the recording of the attorney-client communication and the court concluded this was an appropriate remedy for the reasons expressed in the trial judge's written opinion, State v. Ates, __ N.J. Super. __ (Law Div. 2009). 05-17-12

STATE VS. RYAN L. HODGE A-5961-10T1

STATE  VS. RYAN L. HODGE

 A-5961-10T1

In this appeal, we granted leave to the State to consider the trial court's interlocutory order suppressing a statement taken from defendant, a juvenile at the time, shortly after his arrest for murder.  Neither an attorney nor defendant's legal guardian were present at the time the statement was taken.  Nor had defendant had the opportunity to consult with an attorney in advance of providing the statement.  The motion judge accorded

pipeline retroactivity to State in the Interest of P.M.P., 200 N.J. 166 (2009).  We reverse and hold that P.M.P. is to be applied prospectively.

P.M.P. announced a new rule; its purpose is not furthered by retroactive application; law enforcement officials, in good faith, have relied upon the old rule in conducting custodial

interrogations of juveniles; and retroactive application would have a significant impact upon the administration of justice. 05-15-12

STATE VS. JAMES CRAFT A-5022-10T2

STATE  VS. JAMES CRAFT

  A-5022-10T2

The primary issue in this case is whether the police violated defendant's constitutional rights when they entered a bedroom in his mother's apartment without a search warrant.  We conclude that the police officers' actions were objectively reasonable because the officers had reason to believe defendant was in the bedroom, they knew he was potentially armed and dangerous, and it was impracticable to obtain a search warrant. We therefore reverse the order granting defendant's motion to suppress a handgun and cocaine that were in plain view when the police entered the bedroom. 05-14-12

STATE VS. KIWANIE SALTER A-4410-10T2

STATE VS. KIWANIE SALTER  A-4410-10T2

Defendant was indicted for, among other crimes, two counts of aggravated sexual assault by oral penetration and two counts of criminal sexual contact.  Each count alleged the conduct occurred between September 2nd and September 5th, 2006, and the language in each was identical.  

 The juvenile victim testified to the various incidents that allegedly occurred and formed the basis of the individual counts, although his testimony was somewhat inconsistent with that given before the Grand Jury.  In her jury instructions, the judge did not differentiate what alleged conduct was charged in each count.  After an extended sidebar discussion, and the prosecutor's ultimate assent, the judge submitted a jury verdict sheet that similarly did not differentiate what conduct was alleged in each of the four counts.  The jury found defendant guilty of one count of aggravated sexual assault, but not guilty

of the other.  It also found defendant guilty of both counts of criminal sexual contact. 05-08-12

STATE VS. DAVID M. GIBSON A-1513-10T4

STATE VS. DAVID M. GIBSON

A-1513-10T4

In this appeal, defendant argued, among other things, that the trial judge erred in denying his motion to suppress evidence seized from him following his arrest for defiant trespass.  The

court rejected this argument, concluding that the arresting officer possessed probable cause that defendant had engaged in a defiant trespass even though the property owner posted a "no loitering" instead of a "no trespassing" sign. 05-08-12

STATE VS. JENNIFER LEE LOCASCIO A-5119-09T1

STATE VS. JENNIFER LEE LOCASCIO

 A-5119-09T1

Defendant was convicted of vehicular manslaughter after a jury trial.  The indictment stemmed from a one-car accident in which defendant's boyfriend was killed after the car veered off the road and struck a tree.  The pivotal issue at trial was whether, as the State contended, defendant was the driver or whether, as the defense and its expert contended, the boyfriend was the driver. 

 The State presented expert testimony from the county medical examiner opining that defendant was the driver.  During the course of his testimony, the medical examiner rendered opinions, over defendant's objection, about the probable movements of the occupants within the car as it decelerated and crashed, including an analysis of how the passenger's body allegedly "cushioned" the driver's body during the accident.

 We reverse defendant's conviction and order a new trial because the testimony of the medical examiner, who the State concedes is not qualified as an expert in biomechanics or accident reconstruction, prejudicially went beyond the scope of his expertise on a crucial disputed issue.  The examiner's testimony should have been confined to the aspects of his expertise as a pathologist concerning the nature and causes of bodily injury, and should not have delved into the biomechanical forces and movements within the automobile. 05-04-12

STATE VS. ANTHONY ROSE A-0192-11T2

STATE VS. ANTHONY ROSE

A-0192-11T2

We hold that the newly enacted forfeiture-by-wrongdoing exception to the hearsay rule, N.J.R.E. 804(b)(9), applies retroactively to wrongdoing that occurred before the new Rule's effective date of July 1, 2011, and therefore to all trials conducted thereafter. 05-03-12

TOWNSHIP OF NEPTUNE VS. STATE OF NEW JERSEY A-5573-09T3

TOWNSHIP OF NEPTUNE VS. STATE OF NEW JERSEY

 A-5573-09T3

   In this case, the Township of Neptune sought a judgment declaring that the New Jersey Department of Environmental Protection (NJDEP) was required to dredge the State navigational channels in Shark River Bay by a date certain and identify a

site for the temporary placement of the dredged materials. We conclude that: (1) the Appellate Division has exclusive jurisdiction to consider this claim of agency inaction and a

remand is not required to compile a factual record; (2) mandamus will not lie to compel the NJDEP to exercise its discretion in the specific manner requested; and (3) relief is not warranted on the basis of implied contract, equitable estoppel, the public trust doctrine, or public nuisance. 04-26-12

STATE VS. PAULO BARROS A-1288-10T2

STATE VS. PAULO BARROS

A-1288-10T2

In this case, the court previously applied Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and affirmed the grant of post-conviction relief based on defendant's assertion that his attorney did not advise him that his guilty plea in 2008 to drug distribution charges subjected him to mandatory deportation.  The Supreme Court

granted the State's petition for certification and remanded for the court's reconsideration in light of State v. Gaitan, __ N.J. __ (2012), which held that Padilla announced a new rule

applicable only to guilty pleas entered after Padilla was decided.  In light of Gaitan, the court reversed the grant of post-conviction relief but also stayed its judgment to allow

defendant to seek habeas corpus relief in federal court in light of the Third Circuit's determination in United States v. Orocio, 645 F.3d 630 (3d Cir. 2011), that Padilla does not constitute a new rule. 04-20-12

TATE OF NEW JERSEY VS. RONALD L. JONES, JR. A-5186-10T2

STATE OF NEW JERSEY VS. RONALD L. JONES, JR.  A-5186-10T2

We reverse defendant's drug distribution conviction, concluding that:1) the testimony provided by the State's drug distribution expert, on whether defendant possessed the cocaine

for personal use or instead for distribution, ran afoul of the proscriptions in State v.McLean, 205 N.J. 438 (2011), and State v. Odom, 116 N.J. 65 (1989); and 2) the admission of evidence that defendant possessed Oxycodone denied him a fair trial, as he was not charged with that offense, and the State should not have been permitted to use such N.J.R.E. 404(b) evidence to bolster its contention that defendant possessed the cocaine with the intention of selling it. 04-17-12

STATE OF NEW JERSEY VS. BRIAN RICE A-3777-09T4

STATE OF NEW JERSEY VS. BRIAN RICE

 A-3777-09T4

Defendant, an off-duty police officer, was convicted of second-degree official misconduct, conspiracy to commit official misconduct, and tampering with physical evidence.  Pursuant to N.J.S.A. 2C:43-6.5(a), defendant faced a mandatory minimum term of five-years' imprisonment.  The judge sentenced defendant as a third-degree offender, N.J.S.A. 2C:44-1(f)(2), reduced the mandatory minimum pursuant to N.J.S.A. 2C:43-6.5(c)(2), and

imposed a sentence of three years with a three-year period of parole ineligibility.

 The State appealed and defendant cross-appealed.  We affirmed defendant's conviction of official misconduct and tampering but reversed and remanded for reconsideration of the sentence imposed.  

 N.J.S.A. 2C:43-6.5 was enacted in 2007 as part of a comprehensive legislative scheme affecting the pension rights of public employees, as well as the forfeiture and sentencing

provisions of the Code.  N.J.S.A. 2C:43-6.5(c)(2) permits the judge to "waive or reduce the mandatory minimum term of imprisonment required by" the statute if he "finds by clear and

convincing evidence that extraordinary circumstances exist such that imposition of a mandatory minimum term would be a serious injustice which overrides the need to deter such conduct in others."  This portion of the statute has not been the subject

of a reported case.

 We conclude the statute requires application of a different standard than that which governs the exercise of the judge's discretion in downgrading the offense pursuant to N.J.S.A.

2C:44-1(f)(2) (permitting the judge to impose a sentence "one degree lower than that of the crime for which [the defendant] was convicted" if "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and . . . the interest of justice demands"). 4-16-12

BURLINGTON COUNTY BOARD OF SOCIAL SERVICES VS. G.W. A-5974-09T2

BURLINGTON COUNTY BOARD OF SOCIAL SERVICES VS. G.W.

 A-5974-09T2

The issue raised in this appeal is whether a county board

of social services may terminate a recipient's General

Assistance (GA) and Emergency Assistance (EA), which is provided

pursuant to the Work First New Jersey Program, N.J.S.A. 44:8-107

to -145.5, based on the recipient's eligibility for, rather than

actual receipt of, Social Security Disability benefits (SSD). 

The Board of Social Services determined that the anticipated SSD

benefits placed his monthly "countable income" above the maximum

limit to be eligible for GA and EA benefits.  Appellant did not

receive his first SSD check until after termination of his GA

and EA benefits.  We hold that, upon receiving notification that

a GA or EA recipient has been approved for SSD benefits,

pursuant to the "prospective budgeting methodology" prescribed

in N.J.A.C. 10:90-3.11, the Board of Social Services need not

wait until the recipient is in actual receipt of SSD benefits

before adding the amount of those benefits to the recipient's

countable income, and determining whether GA or EA benefits

should be terminated. 03-27-12

State v. Reynaldo Galicia (A-79-10; 067018)

State v. Reynaldo Galicia (A-79-10; 067018)

The facts of this case, as developed in the trial

record, do not support a passion/provocation finding

under N.J.S.A. 2C:11-4(b)(2). 6-19-12

State v. Buddy Randolph (A-87-10; 067218)

State v. Buddy Randolph (A-87-10; 067218)

 When an appellate court orders reconsideration of

sentence or resentencing, the trial court should view

defendant as he stands before the court on that day

unless the remand order specifies a different and more

limited resentencing proceeding such as correction of

a plainly technical error or a directive to view the

sentencing issue from the vantage point of the

original sentencing.  The Court does not infer such a

limitation in the circumstances of this case; thus,

defendant is entitled to present evidence of his post-

sentencing rehabilitative efforts at resentencing. 6-18-12

State v. Alnesha Minitee State v. Darnell Bland (A-70/71-10; 066771)

State v. Alnesha Minitee

State v. Darnell Bland (A-70/71-10; 066771)

 Under the circumstances of this case, the trial court

correctly denied the defendants’ motion to suppress

because the warrantless search of the SUV that was

involved in the robbery fit within the scope of the

automobile exception to the search warrant

requirement. 6-14-12

State v. J.A.C. (A-102-10; 067520)

State v. J.A.C. (A-102-10; 067520)

   The content of the instant messages written by and to

the victim in this case constitutes “sexual conduct”

within the meaning of N.J.S.A. 2C:14-7(f), and that

content is therefore protected by New Jersey’s Rape

Shield Law.  Any probative value of the content of the

victim’s messages is substantially outweighed by its

prejudice. 6-14-12

State v. Juan Pablo Santos (067989; A-114-10)

State v. Juan Pablo Santos (067989; A-114-10)

 The grant of an evidentiary hearing in which defendant

was to be permitted to provide telephonic testimony

must be reversed and the matter remanded for full

reconsideration by the post-conviction relief (PCR)

court as to whether defendant can meet the standard

for entitlement to an evidentiary hearing under State

v. Gaitan, 209 N.J. 339 (2012). 5-8-12

State v. Derek J. Kaltner (068778; A-8-11)

State v. Derek J. Kaltner (068778; A-8-11)

 The decision of the Appellate Division is affirmed

substantially for the reasons expressed in Judge

Parrillo’s opinion.  Because the police officers’

warrantless search of the home after they were called

to address a noise complaint was not objectively

reasonable, the evidence obtained during the search

was properly suppressed. 5-1-12

State v. Marcus King (067265; A-104-10)

State v. Marcus King (067265; A-104-10)

    The trial court’s examination was insufficient and, as

a result, its ultimate determination was flawed. 

Because the Supreme Court is satisfied that the record

created in response to defendant’s motion does not

support the denial of his right to represent himself,

his convictions must be reversed. 04-12-12

STATE OF NEW JERSEY V. JOSEPH - 06/04/12- A-5651-09T1

STATE OF NEW JERSEY VS. RENARD JOSEPH

 (A-5651-09T1)

 

In this appeal of a defendant's triple armed robbery

convictions where identification was a principal issue, we held

that despite the lack of expert testimony, a proper foundation

was laid for the computer-based photo retrieval system used to

obtain the three victims' out-of-court identifications and that

such a procedure, akin to a mug shot book, was not invalidated

by police failure to record and retain the photographs viewed by

the witnesses. 06-04-12

S.K. VS. J.H. 06-06-12- A-1358-11T2

06-06-12 S.K. VS. J.H.  (A-1358-11T2)

     Plaintiff brought this suit pursuant to the Prevention of

Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, as a result of

being atrociously assaulted by defendant, who, along with

plaintiff, was on a trip to Israel with approximately forty

others.  In seeking to prove the existence of a "dating

relationship," plaintiff was able to show only that, on the

evening of the assault, she and defendant sat together, danced

together, and were together for a few hours at the bar.  The

trial court found a "dating relationship" and entered a final

restraining order.

     In considering defendant's appeal, the court deferred to

the trial judge's finding that the parties' interactions

constituted a "date" but rejected the argument that this one

date constituted the "dating relationship" required by the Act. 

Although the Legislature did not expressly define what it meant

by a "dating relationship," the court found from the majority of

those other states that have defined the term that a "dating

relationship" is a romantic social relationship, which is

further defined by its frequency and duration but which excludes

casual or ordinary fraternization between two individuals in a

business or social context.  As a result of this generally

accepted meaning of "dating relationship," the court held that a

single date was insufficient and reversed. - 06-06-12 

In the Matter of Kevin P. Wigenton, an Attorney at Law (068659; D-131-10)

In the Matter of Kevin P. Wigenton, an Attorney at Law
          (068659; D-131-10)

          Kevin P. Wigenton failed to safeguard and negligently
          misappropriated escrow and client trust funds,
          violated attorney recordkeeping rules, and acted with
          a conflict of interest.  For his unethical conduct, he
          is censured. 4-3-12    
   

STATE OF NEW JERSEY, ET AL. VS. THOMAS CULLEN, T.C., ET AL. A-3001-09T1

STATE OF NEW JERSEY, ET AL. VS. THOMAS CULLEN, T.C.,

ET AL.

A-3001-09T1

The Endangered Nongame Species Conservation Act (ENSCA),

N.J.S.A. 23:2A-1 to -15, makes it unlawful to "harass" a

"species or subspecies of wildlife" declared by the Department

of Environmental Protection to be endangered. As used in ENSCA,

the term "harass" means an intentional or negligent act which

creates the likelihood of injury by annoying the species to such

an extent as to significantly disrupt its normal behavioral

patters. 03-05-12

STATE OF NEW JERSEY VS. SAEED T. ELLIS A-0156-09T4

STATE OF NEW JERSEY VS. SAEED T. ELLIS

A-0156-09T4

We vacate a drug "kingpin" conviction, finding that the

State failed to prove the requisite elements of that firstdegree

offense beyond a reasonable doubt, namely defendant's

elevated status and supervisory control within an organized drug

trafficking network.

03-05-12

STATE OF NEW JERSEY, IN THE INTEREST OF K.O. A-0238-09T1

STATE OF NEW JERSEY, IN THE INTEREST OF K.O.

A-0238-09T1

The panel interpreted N.J.S.A. 2A:4A-44(d)(3) to allow the

imposition of an extended term for a juvenile on the second

adjudication for a qualifying offense, as long as the juvenile

had previously been sent to an adult or juvenile facility. We

rejected the juvenile's argument that the statute required two

prior qualifying offenses. 03-01-12

STATE OF NEW JERSEY VS. EDWARD F. SYLVIA, JR. A-3477-10T1

STATE OF NEW JERSEY VS. EDWARD F. SYLVIA, JR.

A-3477-10T1

Defendant was found guilty of driving while under the

influence, N.J.S.A. 39:4-50, and refusal to submit to a breath

test, N.J.S.A. 39:4-50.4a. On appeal to the Law Division,

defendant first challenged the territorial jurisdiction of the

municipal court. We conclude that the claim should be assessed

under the standards applicable in criminal prosecutions as set

forth in State v. Denofa, 187 N.J. 24, 44, 46 (2006), and find

the evidence of jurisdiction adequate. 02-22-12

02-15-12

STATE OF NEW JERSEY IN THE INTEREST OF A.C.

A-5308-10T4

N.J.S.A. 2A:4A:40, the provision of the Code of Juvenile

Justice that denies the right to a jury trial in adjudications

under the Juvenile Code, is constitutional. The application of

Megan's Law to juvenile sex offenders does not give rise to a

jury trial right for juveniles accused of sex offenses. Whether

to modify Megan's Law, in light of current information about its

impact on juvenile offenders, is a policy decision for the

Legislature.

State v. John Wessells (064599; A-27-09)

State v. John Wessells (064599; A-27-09)

Because the defendant has not yet been tried for the

crimes with which he has been charged, he is entitled

to the benefit of the United States Supreme Court’s

decision in Maryland v. Shatzer, ___ U.S. ___, 130 S.

Ct. 1213, 175 L. Ed. 2d 1045 (2010), and the

statements he made during his second interrogation

must therefore be suppressed. 2-29-12

State v. Frensel Gaitan (067613; A-109-10) State v. Rohan Goulbourne (068039; A-129-10)

State v. Frensel Gaitan (067613; A-109-10)

State v. Rohan Goulbourne (068039; A-129-10)

Padilla represents a new constitutional rule of law

that, for Sixth Amendment purposes, is not entitled to

retroactive application on collateral review.

Although Nunez-Valdez governs the standard of attorney

performance in these cases, defendants are not

entitled to relief under that decision because neither

defendant was affirmatively misadvised by counsel or

established prejudice. 2-28-12

State v. Derrick Harris, Sr. (067348; A-103-10)

State v. Derrick Harris, Sr. (067348; A-103-10)

The trial court did not abuse its discretion when it

viewed defendant’s intervening convictions for

disorderly persons offenses as removing the bar to

admission of defendant’s prior criminal convictions as

too remote and, thus, determined that defendant’s

prior criminal convictions would be admissible if he

testified at trial. 2-27-12

STATE OF NEW JERSEY VS. NICKOLAS AGATHIS A-2211-09T4

STATE OF NEW JERSEY VS. NICKOLAS AGATHIS           A-2211-09T4 

     Defendant pled guilty to the domestic violence offense of simple assault and was placed on probation conditioned upon forfeiting his firearms identification card.  Relying on State v. Nunez-Valdez, 200 N.J. 129 (2009), defendant filed a post conviction relief petition, arguing he received ineffective assistance of counsel when his attorney incorrectly informed him that he could regain his firearms identification card after completing the term of probation. 

     Guided by Rule 3:22-5, the PCR court denied defendant's petition without conducting an evidentiary hearing, concluding that it was bound by our earlier opinion affirming defendant's conviction on direct appeal.  Applying the standard articulated by the Court in Nunez-Valdez, we reversed and remanded for the PCR court to conduct an evidentiary hearing. Because N.J.S.A. 2C:58-3(c) rendered defendant permanently ineligible to obtain a firearms identification card, defendant has shown that his trial counsel's performance fell below the standard expected of an attorney licensed to practice law in this State.  Under these circumstances, the PCR court must determine whether there is a reasonable probability that, but for counsel's errors, defendant would not have pled guilty and would have insisted on going to trial.  02-01-12  

STATE VS. ELLEN HEIN A-5858-09T2/A-1720-10T4

STATE VS. ELLEN HEIN           A-5858-09T2/A-1720-10T4 

     In these consolidated appeals we reverse the Law Division's finding that defendant was guilty of violating a municipal ordinance requiring an inspection of her property.  We do so on the basis of evolved Fourth Amendment jurisprudence viewed under the lens of our State constitution and reach the conclusion that the ordinance, as applied to defendant, is unconstitutional.  We affirm the Law Division's separate finding the defendant was guilty of violating three local provisions of a property maintenance code.  01-31-12  

State v. Kevin Jerome Hudson (066660; A-64-10)

 State v. Kevin Jerome Hudson (066660; A-64-10)           [This is a companion case to State v. Sally A.           McDonald, also decided today.] 

          In this case in which an indictment was severed,           resulting in two trials and two sentencing           proceedings, and the first sentencing court imposed an           extended-term prison sentence, it was error for the           second court also to impose an extend-term sentence.           The time and sequence of the offenses and sentencings           brought the defendant squarely under N.J.S.A. 2C:44-           5(b)(1)’s proscription against multiple extended-term           sentences. 2-6-12   

State v. Sally A. McDonald (066773; A-56-10)

State v. Sally A. McDonald (066773; A-56-10)           [This is a companion case to State v. Kevin Jerome           Hudson, also decided today.] 

          For the reasons expressed in State v. Hudson, also           decided today, the majority of the Court adheres to a           plain-meaning reading of the language of N.J.S.A.           2C:44-5(b)(1), and finds that the sentencing court           erred by imposing an extended-term sentence on           defendant Sally A. McDonald for an offense that she           pled guilty to second in time but that was committed           earlier than the imposition of the extended-term           sentence that she presently is serving. 2-6-12    

State v. Danny Lazo (066199; A-14-10)

State v. Danny Lazo (066199; A-14-10) 

          The officer’s testimony about the photo array had no           independent relevance, merely served to bolster the           victim’s account, and should not have been admitted at           trial in light of the principles outlined in State v.           Branch, 182 N.J. 338 (2005).  2-1-12