Police can’t search just because person is in no loitering area.

Police can’t search just because person is in no loitering area.

    If no probable cause to arrest, search of person is improper State v. Gibson 214 NJ 564 (2014)

Supreme Court of New Jersey

  January 7th, 2014

Docket Number: A-27-12

 State v. David M. Gibson (A-27-12) (070910) 

       Argued October 8, 2013 -- Decided January 7, 2014  ALBIN, J., writing for a unanimous Court.          

       In this appeal, the Court considers whether there was probable cause to arrest defendant for defiant trespass. Without probable cause to arrest, the warrantless search of defendant at the stationhouse cannot stand.          

       At about 3:20 a.m. on November 24, 2007, Officer Wayne Comegno observed, momentarily, defendant David Gibson leaning against an upraised porch on the Omega Community Center’s private property. In a window looking out onto the building’s porch, a posted sign read, “no loitering.” According to Officer Comegno, the Community Center is located in a high-crime area and its president had requested that the police make checks due to incidents of criminal mischief. As the patrol car approached, Gibson moved on, walking a city block before being stopped and questioned by Officer Comegno.

       The officer asked Gibson for identification, where he was coming from, and whether he had permission to be on the Community Center’s property. Gibson gave his name and explained that he was coming from his child’s mother’s home, which is located two blocks north of the Community Center, and that he was waiting for a ride. Officer Comegno testified that Gibson appeared “very excited” and “somewhat evasive,” and that “he was looking around as though he was attempting to run.” The officer did not, however, elaborate on how Gibson was “evasive.” Based on his observations and interaction with Gibson, Officer Comegno concluded that Gibson had the intent to commit a defiant trespass, a petty disorderly persons offense, and arrested him.

       A subsequent search of Gibson at the police station uncovered thirteen bags containing crack cocaine. Gibson was charged with various drug crimes and subsequently moved to suppress the drug evidence, claiming that Officer Comegno did not have probable cause to make the arrest.           

       After a suppression hearing at which only Officer Comegno testified, the trial court found that the officer had probable cause to make an arrest for defiant trespass and therefore was authorized to conduct a search incident to an arrest. The Appellate Division affirmed the denial of the motion to suppress. State v. Gibson,

425 N.J. Super. 523 (App. Div. 2012). The panel stated that Officer Comegno’s encounter with Gibson began as a field inquiry, and then evolved into an investigative stop given the officer’s “reasonable suspicion of criminal activity” based on “the lateness of the hour, [Gibson’s] immediate departure from the Omega property upon seeing the officer, and [Gibson’s] excited and evasive demeanor when questioned.”

According to the appellate panel, the reasonable suspicion ripened into probable cause to arrest for defiant trespass “when [Gibson] failed to assert that he was on the Omega property with permission.” Even though the property owner posted a “no loitering” sign instead of a “no trespassing” sign, the panel maintained that there was probable cause to arrest for defiant trespass because the owner’s intent to keep others off the property was reasonably conveyed. The Court granted Gibson’s petition for certification.

212 N.J. 460 (2012). 

HELD: There was insufficient evidence in the record to support a finding that Officer Comegno had probable cause to arrest Gibson for defiant trespass; therefore, the subsequent search at the stationhouse was unconstitutional and the drug evidence seized during the search must be suppressed.

  1. Under N.J.S.A. 2C:18-3(b), a person commits the petty disorderly persons offense of defiant trespass “if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given . . . in a manner . . . reasonably likely to come to the attention of intruders . . . .” This case deals only with the “enters” portion of the statute, which has no temporal requirement for a completed trespass. Provided sufficient notice is given against trespass, even a brief willful entry onto another’s property may constitute a violation of N.J.S.A. 2C:18-3(b). The relevant inquiry here is whether Gibson was given “notice against trespass” in a manner “reasonably likely to come to [his] attention” and in a form so that he knew that he was not “licensed or privileged” to set even a foot on Omega’s property or to lean against its porch. The answer depends on whether the                                                                1 “no loitering” sign gave sufficient notice to make a reasonable person aware that even a slight and brief incursion on the property was a prosecutable offense.

2. “No loitering” does not convey the same meaning as “no trespassing.” As commonly understood and defined, “loitering” means remaining or lingering at a particular location for some indefinite period of time for no apparent purpose. On the other hand, trespass--particularly as used in the defiant trespass statute--prohibits the mere entering in a place when one is not licensed or privileged to do so. Unlike loitering, the “enters” portion of the trespass statute has no temporal element. Based on these commonly accepted definitions, it is fair to say that the “no loitering” sign in the porch window of the Omega Community Center communicated that a person should not be idly remaining or loafing on its property.

3. The constitutionality of the arrest in this case, and the legitimacy of the subsequent stationhouse search, depends on whether there was probable cause to believe that Gibson was a defiant trespasser. Probable cause is a well- grounded suspicion that a crime has been or is being committed. In determining whether probable cause exists, a court must look to the totality of the circumstances, and view those circumstances from the standpoint of an objectively reasonable police officer. In addition, the State bears the burden of proving by a preponderance of the evidence that the officer had probable cause to make the arrest. Although the trial court’s credibility assessments are entitled to deference, the Court is not obliged to defer to the ultimate finding of probable cause when the facts and inferences do not support that conclusion.

 4. According to the record, Gibson was seen leaning on the porch for no more than a few moments before he began walking. As soon as the officer saw Gibson, Gibson moved on, but did not take flight or dart between buildings. Although Officer Comegno claimed that Gibson was “evasive” and looked as though he might “run,” he gave no factual support for those subjective feelings. In addition, although the officer cited, as one basis for making the arrest, Gibson’s failure to give “lawful reasons” for leaning on the porch, Gibson explained why he was on the street at that hour. The notice on the Omega property did not suggest that leaning on the porch for a very brief period of time would subject Gibson to a defiant trespass prosecution. Gibson was instead warned against loitering, which has a distinctly different meaning than trespass. Momentarily leaning against a building, or an upraised porch, on a city block, would not be considered loitering to an objectively reasonable citizen. If Gibson was not loitering, then Officer Comegno could not have formed a well-grounded suspicion that Gibson was defiantly trespassing. Therefore, the record does not support that Officer Comegno had probable cause to arrest Gibson for defiant trespass. The police station search cannot stand because it was incident to an unconstitutional seizure.

 The judgment of the Appellate Division is REVERSED, and the matter is REMANDED for proceedings consistent with this opinion.       CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and PATTERSON, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE ALBIN’s opinion.                                                                2                                       SUPREME COURT OF NEW JERSEY                                         A-27 September Term 2012                                                  070910  STATE OF NEW JERSEY,      Plaintiff-Respondent,           v.  DAVID M. GIBSON      Defendant-Appellant.            Argued October 8, 2013 -- Decided January 7, 2014.         

 On certification to the Superior Court,          Appellate Division, whose opinion is          reported at

425 N.J. Super. 523

 (2012).           Alyssa A. Aiello, Assistant Deputy Public          Defender, argued the cause for appellant          (Joseph E. Krakora, Public Defender,          attorney).           Steven A. Yomtov, Deputy Attorney General,          argued the cause for respondent (John J.          Hoffman, Acting Attorney General, attorney).    

  JUSTICE ALBIN delivered the opinion of the Court.      The right to walk freely on the streets of a city without  fear of arbitrary arrest is one of the guarantees protected by  the Fourth Amendment of the United States Constitution and  Article I, Paragraph 7 of the New Jersey Constitution.   A person  cannot be arrested unless there is probable cause to believe  that he has committed or is committing an offense.   An arrest  without probable cause is an unreasonable seizure in violation  of both the Federal and State Constitutions.      In the early morning hours of November 24, 2007, a police  officer on vehicular patrol observed, momentarily, defendant  David Gibson leaning against a building’s upraised porch on a  street corner in the City of Burlington.   In a window looking  out onto the building’s porch, a posted sign read, “no  loitering.”   Gibson moved on, walking a whole city block before  he was stopped and questioned by the officer.   According to the  officer, the ground on which Gibson stood as he leaned against  the porch was private property.   On that basis, in addition to  Gibson’s nervous demeanor after the stop, the officer concluded  that Gibson had the intent to commit a defiant trespass, a petty  disorderly persons offense, and arrested him.      Gibson moved to suppress drug evidence discovered during a  search at the stationhouse because, as he claims, the officer  did not have probable cause to make the arrest.   After a hearing  at which the arresting officer testified, the trial court denied  the suppression motion, and the Appellate Division affirmed.      Even given our deferential standard of review, the court cannot  hold that there is sufficient credible evidence in the record to  support the trial court’s finding that the officer had probable  cause to believe that Gibson was a defiant trespasser.   Because  the court conclude that the trial court’s finding of probable cause was clearly mistaken, the court must reverse the Appellate Division and  remand for entry of an order suppressing the evidence.                                    I.      Defendant was charged in a Burlington County indictment  with second-degree possession of a controlled dangerous  substance (CDS), namely cocaine, with intent to distribute  within 500 feet of certain public property, N.J.S.A. 2C:35-7.1;  third-degree possession of CDS with intent to distribute within  1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree  possession of CDS with intent to distribute, N.J.S.A. 2C:35-  5(a)(1) and -5(b)(3); and third-degree possession of CDS,  N.J.S.A. 2C:35-10(a)(1).   Gibson moved to suppress CDS evidence  discovered on him after his arrest for defiant trespass.    He  claimed that his arrest was an unconstitutional seizure and  therefore the following search invalid, requiring suppression of  the evidence under the exclusionary rule.      At the suppression hearing in Superior Court, Burlington  County, only one witness testified, Officer Wayne Comegno of the  Burlington City Police Department.   The factual record consists  entirely of the testimony of Officer Comegno.                                  A.      At about 3:20 a.m. on November 24, 2007, Officer Comegno, a  four-year veteran, was patrolling in a squad car in the New Yorkshire area -- a historic section of the city also known to  him for its history of violent crimes and drug activity.     The  president of the Omega Community Center had asked the police to  check the property “because of incidents of criminal mischief.”  The Community Center is a three-story building that “sits on the  corner of York and Jones Avenue.”    On the York Street side, the  building has an upraised porch -- two feet off ground level --  with two windows facing off the porch.   In the upper half of one  of the windows was a “no loitering” sign.      As Officer Comegno drove south on York Street, he noticed  David Gibson “leaning against the porch of the Omega Community  Center.”   Officer Comegno concluded that the ground on which  Gibson was standing, as he leaned against the porch, was the  private property of the Community Center.    The record does not  reveal how many feet or inches Gibson stood off the sidewalk or  street onto Omega’s property by Officer Comegno’s reckoning.  According to the officer, the area was illuminated and the “no  loitering” sign, which he could see from his car, was  approximately two feet from where Gibson was standing.      As the patrol car approached him, Gibson began walking  south on York Street.   This was apparently just moments after  Officer Comegno first caught sight of him.    As Gibson crossed  over Jones Avenue and headed towards Green Street, Officer  Comegno did not pull his patrol car over and attempt to stop him.    Instead, the officer drove around the block.   After Gibson  walked the full length of the block and reached the intersection  of York Street and Green Street, Officer Comegno rounded the  corner and “intercepted” him.     The officer exited his patrol car  and asked Gibson for identification.     He also asked Gibson where  he was coming from and whether he had permission to be on  Omega’s property.     Gibson gave his name and explained that he  was coming from “his child’s mother’s home located at 200 East  Broad Street,” which is located two blocks north of the Omega  Community Center.   He told the officer that “[h]e was waiting  for a ride, something along those lines.”    To Officer Comegno,  Gibson appeared “very excited” and “somewhat evasive,” and the  officer thought “he was looking around as though he was  attempting to run.”    The officer did not elaborate on how Gibson  was “evasive,” and Gibson did not flee.         Officer Comegno “felt that there was an intent to trespass  at the Omega Community Center” based on his observations and  interaction with Gibson and therefore “placed him under arrest.”  Only after he spoke with Gibson did he conclude that Gibson had  “the intent to trespass.”     Officer Comegno admitted that he did  not see Gibson involved in any criminal activity while he leaned  against the Community Center’s porch, but offered that one of  the reasons for making the arrest was Gibson’s failure to give  “lawful reasons” for leaning on the porch.                                     

   Officer Comegno handcuffed Gibson and searched him before  placing him in the patrol car.    No weapons or contraband were  found on his person at that time.      At the Burlington City police  station, a more thorough search of Gibson uncovered thirteen  clear plastic bags containing crack cocaine.      Officer Comegno explained that arresting Gibson for the  petty disorderly persons offense of defiant trespass, as opposed  to issuing a summons at the scene, was part of normal procedure.  He conceded that, at times, he issued summonses for offenses,  but only when directed by a supervisor, and he did not contact a  supervisor that night.                                    

B.      The trial court denied the motion to suppress based on  Officer Comegno’s testimony.     The court recounted that Officer  Comegno, an experienced officer familiar with the area,  “observed a black male . . . David Gibson standing on the  property of the Omega Community Center . . . leaning on the  front porch” at a time when the Community Center was not open to  the public.   The court stressed that a “no trespassing sign was  posted at porch level in the window.”     The court also noted that  Officer Comegno thought that Gibson was “acting furtively” and  “was going to run away.”   The court found that the officer had  probable cause to make an arrest for defiant trespass and  therefore was authorized to conduct a search incident to an    arrest.     The court emphasized it did not read our decision in  State v. Dangerfield,

171 N.J. 446 (2002), to limit the scope of  a search incident to an arrest to a weapons search -- a safety  search -- when the charge is for the petty disorderly persons  offense of defiant trespass.                                    C.       After the denial of his suppression motion, in accordance  with a plea agreement, Gibson pled guilty to third-degree  possession with intent to distribute CDS.     The court sentenced  Gibson on that charge to a term of eight years in State Prison  with a four-year parole disqualifier and imposed all requisite  fines and penalties.1    The remaining charges in the indictment  were dismissed.                                      II.       The Appellate Division affirmed the denial of the motion to  suppress.    State v. Gibson, 425 N.J. Super. 523 (App. Div.  2012).    The panel stated that Officer Comegno’s encounter with  Gibson began as a field inquiry, id. at 527 n.1, and then  evolved into an investigative stop given the officer’s  “reasonable suspicion of criminal activity” based on “the  1   The judgment of conviction does not explain the basis for sentencing Gibson in the range of a second-degree crime for a third-degree offense. Perhaps Gibson was sentenced to an extended term; the court do not know from this record. lateness of the hour, [Gibson’s] immediate departure from the  Omega property upon seeing the officer, and [Gibson’s] excited  and evasive demeanor when questioned,” id. at 527.      According to  the appellate panel, the reasonable suspicion for the  investigative stop ripened into probable cause to arrest for  defiant trespass “when [Gibson] failed to assert that he was on  the Omega property with permission.”     Id. at 527-28.         The panel maintained that Officer Comegno had probable  cause to arrest under the defiant trespass statute, N.J.S.A.  2C:18-3(b), “even though the property owner posted a ‘no  loitering’ sign instead of a ‘no trespassing’ sign.”      Id. at  528.    “[S]o long as the owner’s intent to keep others off the  property is reasonably conveyed,” the panel reasoned, the  statute’s notice requirement is met.     Id. at 529.   In the  panel’s view, “‘no loitering’ is a message sufficient to convey  the same meaning as ‘no trespassing.’”     Ibid.   The panel  concluded that the “no loitering” sign gave the officer a  reasonable basis to conclude that Gibson “was engaged in  criminal activity by leaning against the porch of the Omega  property.”   Id. at 530.2     2   The panel did not find sufficient merit to discuss Gibson’s argument that he should have been given the opportunity to post bail before he was searched at the stationhouse. Id. at 526.     The court granted Gibson’s petition for certification.      State v.  Gibson, 212 N.J. 460 (2012).                               

   III.                                  A.      Gibson argues that his arrest was unconstitutional because  it was not supported by probable cause and therefore the search  incident to the arrest was invalid as well.   He also contends  that “a ‘no loitering sign’ cannot adequately warn against  trespass because ‘loitering’ and ‘trespassing’ denote different  types of conduct.”   Gibson points out that “‘loitering’ is  commonly understood to mean presence in a place for a prolonged  period of time, with no aim or purpose,” whereas a defiant  trespass means an unprivileged entry onto another’s property  where there is adequate notice against trespass.   The  distinction between the two, Gibson claims, is critical.    He  submits that “the ‘no loitering’ sign adequately warned [him]  that he could not idly remain on Omega property for a prolonged  time,” but that the sign did not adequately warn him that he  would be subject to prosecution for “briefly leaning] against  the porch as he waited for a ride.”   He cautions that clothing  the police with the authority to arrest under circumstances such  as here, “creates [the] grave potential for official  harassment.”                                  

   Gibson also claims that the police violated his Fourth  Amendment rights by conducting a warrantless search at the  stationhouse.   He posits that “the stationhouse search was not a  search incident to an arrest” because the arrest and search  occurred at the scene and further that “the police did not have  authority to conduct an inventory search before releasing [him]  on his own recognizance or giving him an opportunity to post  bail.”                                 

B.      The State submits that, given the totality of the  circumstances, Officer Comegno had a well-grounded suspicion,  and therefore probable cause, to arrest Gibson for the petty  disorderly persons offense of defiant trespass.       .                 .     The  circumstances warranting an objectively reasonable police  officer finding probable cause for defiant trespass, according  to the State, include Gibson’s leaning on the porch of the Omega  property, the officer’s knowledge that the property was in a  high-crime area, prior complaints of the property owner about  trespassers, the officer’s observation that Gibson appeared to  be “very excited” and “somewhat evasive” when questioned, and  Gibson’s failure to provide a “lawful reason” for “leaning  against the raised porch.”   The State insists that the “no  loitering” sign was sufficient to give Gibson notice against  trespassing on Omega’s property, for the reasons expressed by the Appellate Division.   Alternatively, it submits that even if  the notice element of defiant trespass was not satisfied,  “[Gibson’s] relief should not be suppression of the evidence  under the exclusionary rule,” but dismissal of the defiant  trespassing charge “on legal sufficiency grounds.”     

       The State also argues that the police conducted a  permissible search of Gibson at the stationhouse.    It proffers  that “because Officer Comegno could only perform a limited  search incident to arrest at the scene, it was entirely  appropriate . . . to continue the search at the police station  so that a full search incident to arrest could be conducted  there.”   Citing Dangerfield, supra,  171 N.J. 446 , the State  submits that there is no legitimate authority for Gibson’s  position that he is “‘presumptively entitled to be released upon  the issuance of a summons, rather than being arrested.’”                                  

        IV.      The decisive issue before us is whether Officer Comegno had  probable cause to arrest Gibson for defiant trespass.     In the  absence of probable cause to arrest, the search at the scene and  the search at the stationhouse cannot pass constitutional  muster.   To determine whether the officer had a constitutional  basis to arrest Gibson, the court first must understand the statutory  requirements of defiant trespass.                                     

       A person commits the petty disorderly persons offense of  defiant trespass,            if, knowing that he is not licensed or           privileged to do so, he enters or remains in           any place as to which notice         against           trespass is given by:                 (1) Actual communication to the actor;                or                 (2) Posting in a manner prescribed by                law or reasonably likely to come to the                attention of intruders; or                 (3)    Fencing    or    other    enclosure                manifestly     designed     to     exclude                intruders.            [N.J.S.A. 2C:18-3(b).]3  This case deals only with the “enters” portion of the statute,  which has no temporal requirement for a completed trespass.  Provided sufficient notice is given against trespass, even a  brief willful entry onto another’s property may constitute a  violation of N.J.S.A. 2C:18-3(b).    In contrast, under the  “remains” portion of the statute, a person who is privileged or  licensed to enter onto property may be prosecuted for defiant  trespass if he refuses to leave after he is told to do so.  There, the duration of the incursion -- how long he “remains”  unwelcome on the property -- is a factor.    See, e.g., State v.   3   A person convicted of a petty disorderly persons offense may be sentenced to a term of imprisonment not to exceed thirty days. N.J.S.A. 2C:43-8. Slobin,  294 N.J. Super. 154, 156 (App. Div. 1996) (affirming  conviction where defendants “sat at [a] table for a period of  forty minutes after being asked to leave and refused] to do  so”); State v. Dargon, 165 N.J. Super. 500, 503-04 (App. Div.  1978) (holding, under predecessor statute, that although  defendants were permitted entry, “their deliberate and  persistent refusal to leave pursuant to the several requests  rendered them willful trespassers”).      The heart of N.J.S.A. 2C:18-3(b) is the notice provision.  See II The New Jersey Penal Code, Final Report of the New Jersey  Criminal Law Revision Commission § 2C:18-3 cmt. 2, at 212 (1971)  (“The theory of this Section is that where a landowner wishes to  assert his right to exclude from open land and to have the  backing of the criminal law, it is not too much to ask him to  give notice.”).      The questions here are whether Gibson was given “notice  against trespass” in a manner “reasonably likely to come to  [his] attention” and in a form so that he knew that he was not  “licensed or privileged” to set one foot on the curtilage of  Omega’s property or to lean against its porch.     N.J.S.A. 2C:18-  3(b).   In other words, did Gibson know -- or for that matter  would any reasonable person have known -- that by leaning  against the upraised porch, even momentarily, he would commit  the offense of defiant trespass?     That all depends on whether                                   the “no loitering” sign in the window overlooking the Community  Center’s porch gave sufficient notice to make a reasonable  person aware that even a slight and brief incursion on the  property was a prosecutable offense.    

        The Appellate Division expressed the opinion that “‘no  loitering’ is a message sufficient to convey the same meaning as  ‘no trespassing.’”    Gibson, supra, 425 N.J. Super. at 529.     At  least in the circumstances of this case, the court cannot agree with  that proposition.      As commonly understood, loitering suggests remaining or  lingering in a location for some indefinite period for no  apparent purpose.    See Webster’s Third International Dictionary  1331 (1981) (defining “loiter” as “2 a : to remain in or near a  place in an idle or apparently idle manner: hang around  aimlessly or as if aimlessly ”); The American Heritage Dictionary 740-41 (2d  College ed. 1991) (defining “loiter” as “1.   To stand idly  about; linger aimlessly.   2.   To proceed slowly or with many  stops.   3.   To delay or dawdle”); Black’s Law Dictionary 1027  (9th ed. 2009) (defining “loitering” as “[t]he criminal offense  of remaining in a certain place (such as a public street) for no  apparent reason”).      Under the New Jersey Code of Criminal Justice, a person  commits the disorderly persons offense of “[loitering for [the purpose of illegally using, possessing or selling controlled  substance,” N.J.S.A. 2C:33-2.1, if “he wanders, remains or  prowls in a public place with the purpose of unlawfully  obtaining or distributing” CDS, N.J.S.A. 2C:33-2.1(b)(1).     In  Camarco v. City of Orange, the Appellate Division addressed a  challenge to the constitutionality of a municipal loitering  statute that defined loitering as “remaining idle in essentially  one location,” “spending time idly loafing or walking,” and  “‘hanging around.’”    116 N.J. Super. 531, 533 (App. Div. 1971),  aff’d, 61 N.J. 463

 (1972).   See also Chicago v. Morales, 527 U.S. 41, 51 n.14, 119 S. Ct. 1849, 1856 n.14,  (1999) (referencing Chicago ordinance defining “‘loiter’  to mean ‘to remain in any one place with no apparent purpose’”).      All of these definitions and applications of loitering  convey something more than a temporary or brief respite at a  particular location.   On the other hand, trespass --  particularly as used in the defiant trespass statute -- has a  distinctly different meaning.   N.J.S.A. 2C:18-3(b) prohibits the  mere entering -- not just idly remaining -- in a place, when one  is not licensed or privileged to do so.   Unlike loitering, the  “enters” portion of the trespass statute has no temporal  element.       It is fair to say, given the commonly accepted definitions  of loitering, that the “no loitering” sign in the porch window                                    of the Omega Community Center communicated nothing more than  that a person should not be idly remaining or loafing on its  property.4   Through the commonly understood meaning of loitering  and the requirements of the defiant trespass statute, the court must  judge whether Officer Comegno had probable cause to arrest  Gibson.                                   

         V.       The central issue is not whether Officer Comegno was  authorized to conduct a field inquiry or an investigative stop  of Gibson, but rather whether he had probable cause to make an  arrest.                                   A.       A field inquiry “occurs when a police officer approaches an  individual and asks ‘if the person is willing to answer some  questions.’”   State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting  State v. Nishina, 175 N.J. 502, 510 (2003)) (alteration  omitted).    So long as the questioning “is not harassing,   4   Although the court are not dealing with a loitering statute in this case, it bears mentioning that such statutes have been subject to constitutional challenge on vagueness grounds. Some loitering statutes have been notorious for “failing] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits” and for “authorizing] and even encouraging] arbitrary and discriminatory enforcement.” See Morales, supra, 527 U.S. at 56, 119 S. Ct. at 1859, 144 L. Ed. 2d at 80. overbearing, or accusatory in nature,” Nishina, supra, 175 N.J.  at 510, and the person is free to refuse to answer and “‘go on  his way,’” Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319,  1324,  (1983) (citations omitted), the  person’s Fourth Amendment rights are not implicated, ibid.      A police officer may conduct an investigative stop when,  “based on specific and articulable facts,” he has a reasonable  suspicion that a person is engaged in criminal activity.  Pineiro, supra, 181 N.J. at 20 (citations omitted).    An  investigative stop occurs when “a reasonable person would have  believed that he was not free to leave” and constitutes a  “seizure” under the Fourth Amendment.   United States v.  Mendenhall, 100 S. Ct. 1870, 1877 An officer’s subjective, good-faith hunch  does not justify an investigatory stop -- even if that hunch  proves correct.   See State v. Arthur,  149 N.J. 1

, 8 (1997).    The  duration of an investigative stop must be limited in time and  scope to the purpose that justified the stop in the first place.  Royer, supra, 460 U.S. at 500, 103 S. Ct. at 1325, 75 L. Ed. 2d  at 238.      There is no question that Officer Comegno had the right to  ask questions of Gibson -- that is, to conduct a field inquiry.  The court need not resolve whether Gibson was subject to an  investigative stop because the officer placed him under arrest                                   immediately after questioning him.   The legitimacy of the  stationhouse search depends simply on whether Officer Comegno  had probable cause to make the arrest.                               

         B.      Both the Fourth Amendment of the United States Constitution  and Article I, Paragraph 7 of the New Jersey Constitution  provide for “[t]he right of the people to be secure in their  persons . . . against unreasonable searches and seizures.”     In  the absence of probable cause to believe that a person has  committed or is committing an offense, an arrest is an  unreasonable seizure in violation of our Federal and State  Constitutions.   See Dangerfield, supra, 171 N.J. at 455-56.    The  lawfulness of the arrest in this case depends on whether Officer  Comegno had probable cause to believe that Gibson had committed  a defiant trespass on the property of the Omega Community  Center.      Probable cause has been defined as “a well grounded  suspicion that a crime has been or is being committed,” State v.  Sullivan, 169 N.J. 204, 211 (2001) (citation and internal  quotation marks omitted), and as “a reasonable ground for belief  of guilt,” Brinegar v. United States, 338 U.S. 160, 175, 69 S.  Ct. 1302, 1310,  (1949) (citations and  internal quotation marks omitted).   It “is more than a mere  suspicion of guilt, [but] less than the evidence necessary to convict a defendant of a crime in a court of law.”     State v.  Basil,

202 N.J. 570

, 585 (2010) (citing Brinegar, supra, 338  U.S. at 175, 69 S. Ct. at 1310, 93 L. Ed. at 1890).    It “is a  fluid concept -- turning on the assessment of probabilities in  particular factual contexts” and addresses “‘the factual and  practical considerations of everyday life on which reasonable  and prudent men, not legal technicians, act.’”   Illinois v.  Gates, 462 U.S. 213, 231-32, 103 S. Ct. 2317, 2328-29, 76 L. Ed.  2d 527, 544 (1983) (citation omitted).   Last, “[in determining  whether there was probable cause to make an arrest, a court must  look to the totality of the circumstances, and view those  circumstances from the standpoint of an objectively reasonable  police officer.”   Basil, supra, 202 N.J. at 585 (citation and  internal quotations marks omitted).                              

   C.      The default position in our constitutional jurisprudence is  that warrantless searches are presumptively invalid.     State v.  Frankel,

179 N.J. 586, 598, cert. denied,

543 U.S. 876(2004), overruled in part by State v.  Edmunds,

211 N.J. 117 (2012); see also Kentucky v. King, 563  U.S. __, __, 131 S. Ct. 1849, 1856, (2011).   For that reason, the State bears the burden of proving  by a preponderance of the evidence that a warrantless search  falls within one of the “‘well-delineated exceptions’ to the warrant requirement” of the Fourth Amendment and Article I,  Paragraph 7 of our State Constitution.     Frankel, supra, 179 N.J.  at 598 (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412  (1978)).     In this case, the  State claims that the warrantless search of Gibson at the  stationhouse was incident to his arrest.    See State v. Moore,  181 N.J. 40, 45 (2004) (citing Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040,  (1969))  (holding that search incident to arrest is exception to warrant  requirement).   The validity of the search, however, depends on  the constitutionality of the arrest.     See ibid.   Therefore, the  State bears the burden of showing that Officer Comegno had  probable cause to make the arrest.      At the suppression hearing, the trial court heard testimony  from Officer Comegno and determined that he had probable cause  to arrest Gibson for defiant trespass.    Inasmuch as that finding  is based on the court’s credibility assessment of Officer  Comegno, the only witness who testified, it is entitled to  deference -- but not blind deference.    This Court is not obliged  to defer to clearly mistaken findings -- findings that are not  supported by sufficient credible evidence in the record.      See  State v. Elders,

192 N.J. 224, 245 (2007) (noting that trial  court’s “findings were entitled to deference unless they were  ‘clearly mistaken’ or ‘so wide of the mark’ that the interests of justice required appellate intervention.”          (citing N.J. Div.  of Youth & Family Servs. v. M.M.,

189 N.J. 261, 279 (2007)));  State v. Johnson,

42 N.J. 146, 162 (1964) (stating that aim of  appellate review is “to determine whether the findings made  could reasonably have been reached on sufficient credible  evidence present in the record”).       Nor is the Court obliged to  defer to the ultimate finding of probable cause when the facts  and inferences do not support that conclusion.      For example, in State ex rel. J.M.,

339 N.J. Super. 244,  256-57 (App. Div. 2001), the Appellate Division overturned the  trial court’s denial of a motion to suppress because the trial  court clearly erred in finding that a police officer had  probable cause to arrest the defendant for defiant trespass.    

               In  J.M., one evening, a resident told a police officer that “she  was having a problem with people ‘hanging out’ on her porch and  dealing drugs.”   Id. at 246.   The officer testified that “the  police had received complaints about trespassers and narcotics  activity in that area” and that he had personally “made arrests  at that location.”   Id. at 247.    That same evening, the officer  observed three people on the resident’s porch, none of whom  appeared to be engaged in criminal activity.          Ibid.   The officer  spoke with the resident, who advised him that two of the people  on the porch were her relatives and that she did not know the  third person -- the juvenile defendant.       Ibid.     When the officer asked the defendant why he was on the porch, he responded that  he was “hanging out.”   Ibid.    Although the resident did not ask  that the defendant be removed, the officer pointed out to the  defendant the “‘no trespassing’ sign in the window of the house”  and arrested him for defiant trespass.     Ibid.   A search of the  defendant at the police station uncovered drugs on his person.  Ibid.      The Appellate Division in J.M. found the evidence  insufficient to support the trial court’s finding of probable  cause to arrest.   Id. at 248.    It determined that “it belies  common sense that [the defendant] just wandered off the street  to join two other young people who were not trespassers,” that  it was “highly unlikely” that one of the resident’s relatives  had not invited him to be there, and that the police failed “to  make a good faith evaluation of the circumstances  presented . . . before effectuating an arrest.”      Id. at 248-49.      Also significant to our analysis is Dangerfield, supra,

171 N.J. 446.   There, the court determined that the State failed to show  that, under the totality of the circumstances, a detective had a  well-grounded suspicion -- or, in other words, probable cause --  to arrest the defendant for defiant trespass.      Id. at 457.  Thus, the court affirmed a suppression motion because the search was  incident to an unlawful arrest.    Id. at 458.     In Dangerfield, a  police detective observed the defendant sitting on a bicycle in                                     a public housing project, where “no trespassing” signs were  posted.     Id. at 457.     The detective had encountered the  defendant on two previous occasions, on each of which the  defendant gave a “legitimate and lawful” explanation for his  presence.    Ibid.   On this occasion, the defendant saw the  detective and another detective and “rode away on his bicycle.”  Ibid.   The detectives stopped the defendant and questioned him  about his flight.        Ibid.    He explained that he was “doing  nothing.”    Id. at 451.         The defendant was arrested for defiant  trespassing.     Ibid.   

     This Court emphasized that the defendant  was never “asked whether he knew or was visiting anyone at the  complex,” although such questioning was part of established  protocol for “approaching suspected trespassers.”           Id. at 457.  This Court also pointedly stated that “flight alone does not  create reasonable suspicion for a stop, let alone probable  cause.”     Ibid. (citing State v. Tucker,

136 N.J. 158, 168-69  (1994)).      Both J.M. and Dangerfield demonstrate that courts carefully  assess whether the probable-cause justification for an arrest  for defiant trespass is supported by the fair inferences that  can be drawn from the record.          The court now must determine whether,  viewed through the eyes of an objectively reasonable police  officer, there was sufficient credible evidence to support the  arrest of Gibson for defiant trespass.                                                 VI.      Even under our deferential standard of review, the court cannot  find an objectively reasonable basis for Gibson’s arrest.    At  3:20 a.m., while in his patrol car, Officer Comegno observed a  black male -- whom he later learned was David Gibson -- leaning  against the upraised porch of the Omega Community Center.    In a  window facing the porch was posted a “no loitering” sign.  Whether the sign was directed to those who ventured onto the  porch or those lingering in the outermost part of the property  or curtilage -- or even the sidewalk -- is not evident from the  record.   Based on the record, and given the limited time for the  officer’s observations, it appears that Gibson was seen leaning  on the porch for no more than a few moments, and may not have  been standing more than a foot on Omega’s property, before he  began walking south on York Street.    The State presented no  evidence regarding the degree of encroachment on Omega’s  property, whether inches or feet, or how long the encroachment  lasted, whether seconds or longer.     The State bore the burden of  proving by a preponderance of the evidence that Officer Comegno  had probable cause to arrest Gibson.      The officer did not see Gibson engaged in any illegal  activity.   As soon as the officer saw Gibson, Gibson moved on.  Gibson’s observed conduct hardly fits the commonly understood meaning of loitering -- remaining in a place in an idle manner,  hanging around, lingering aimlessly, or loafing.      Although Officer Comegno was driving south in the same  direction in which Gibson was walking, he did not stop Gibson  immediately.   Instead, he drove around the block and intercepted  Gibson after Gibson had walked the length of York between Jones  Avenue and Green Street.   Gibson did not take flight, or dart  between buildings, after he spotted the patrol car.      No one can quarrel with the officer’s decision to approach  Gibson and ask him some questions.    Gibson identified himself  and stated that he had been visiting his child’s mother, who  lived two blocks north of the Omega Community Center, and that  he had been “waiting for a ride.”    Although Officer Comegno  claimed that Gibson was “evasive” and looked as though he might  “run,” he gave no factual support for those subjective feelings.  The officer cited, as one basis for making the arrest, Gibson’s  failure to give “lawful reasons” for leaning on the porch, but  Gibson explained why he was on the street at that hour.      The court accept the trial court’s credibility findings concerning  Officer Comegno’s testimony.   The court accept that the Omega Community  Center is located in a high-crime area and that the Community  Center’s president had asked the police to make checks because  there had been incidents of criminal mischief.     The court cannot    accept, however, the inferences drawn by the officer because  they are not objectively reasonable.      The constitutional right to be free from arbitrary arrest  is not suspended in high-crime neighborhoods where ordinary  citizens live and walk at all hours of the day and night.  Momentarily leaning against a building, or an upraised porch, on  a city block, would not be considered loitering to an  objectively reasonable citizen.    That would be so even if the  passerby was standing a foot or two on the curtilage of the  building’s property.      If Gibson was not loitering, as the term is conventionally  understood, then how could Officer Comegno have formed a well-  grounded suspicion that Gibson was defiantly trespassing on  Omega’s property?   As the court explained earlier, trespass and  loitering are terms with distinctly different meanings.     The  notice on the Omega property did not suggest that leaning on the  porch for a very brief period would subject the offender to a  defiant trespass prosecution.   The “notice against trespass” had  to be communicated in a manner that would have made a reasonable  person aware that setting even a foot on the curtilage or  leaning against the porch was unlawful.    N.J.S.A. 2C:18-3(b).      It bears mentioning that the trial court, in reciting its  factual findings, mistakenly referred to a “no trespassing” sign  in the porch window.   The court do not know whether this was a slip of                                     the tongue or a mistaken belief that may have affected the  resulting legal conclusion.    Nevertheless, this error ultimately  is of little moment in our analysis.      The court do not suggest that a “notice against trespass” must be  phrased in some talismanic form.       There are a multitude of ways  in which the message can be conveyed.       Had Gibson remained idly  leaning on the porch for an extended period of time, perhaps  Gibson’s conduct would have had the appearance of loitering, and  Officer Comegno might then have had a reasonable suspicion of  defiant trespassing.    But that is not the case here.      The State argues that Gibson’s walking away from the Omega  Community Center gave rise to reasonable suspicion on the part  of Officer Comegno.    But had he remained where he had stood  Gibson surely would have been loitering.       This type of Catch-22  scenario cannot support a probable cause determination.      Even  flight, standing alone, will not support a well-grounded  suspicion for a defiant trespass arrest.       See Dangerfield,  supra, 171 N.J. at 457.      The defiant trespass statute cannot be used as an  instrument for random stops and arrests.       That was made clear in  both Dangerfield and J.M.     The State had the burden of  justifying the warrantless arrest in this case.       The court must view  the propriety of Officer Comegno’s actions through the lens of  the objectively reasonable police officer.       The court conclude that                                     even under the deferential standard that guides appellate  review, the State has failed to show that Officer Comegno had  probable cause to arrest Gibson for defiant trespass.       In short,  there is insufficient evidence in the record to support a  finding of probable cause.    The search at headquarters cannot  stand because it was incident to an unconstitutional seizure.  See State v. Badessa,

185 N.J. 303, 311 (2005) (citing Wong Sun  v. United States,

371 U.S. 471, 485, 83 S. Ct. 407

, 416, 9 L.  Ed. 2d 441, 454 (1963)).   

     For that reason, the court are compelled to  suppress the fruits of that search.      The court need not reach Gibson’s second argument:        that he should  have been given the opportunity to post bail before the  stationhouse search.   However, the court do not hesitate to offer that  once an officer lawfully arrests a suspect, he has the right and  duty to search him for weapons and contraband before placing him  in a patrol car.   See Chimel, supra, 395 U.S. at 762-63, 89 S.  Ct. at 2040, 23 L. Ed. 2d at 694.       It also follows that the  police have the authority to ensure, at headquarters, that a  person under arrest is not armed with a weapon.                                  

  VII.      For the reasons given, the court reverse the judgment of the  Appellate Division and suppress the evidence seized during the                                       stationhouse search.   The court remand for proceedings consistent with  this opinion.       CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and PATTERSON, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE ALBIN’s opinion.                                      

SUPREME COURT OF NEW JERSEY  NO.     A-27                     SEPTEMBER TERM 2012  ON CERTIFICATION TO             Appellate Division, Superior Court    STATE OF NEW JERSEY,        Plaintiff-Respondent,               v.  DAVID M. GIBSON,        Defendant-Appellant.     DECIDED               January 7, 2014                Chief Justice Rabner            PRESIDING OPINION BY                Justice Albin CONCURRING/DISSENTING OPINIONS BY DISSENTING OPINION BY                                  REVERSE AND CHECKLIST                                  REMAND CHIEF JUSTICE RABNER                X JUSTICE LaVECCHIA                   X JUSTICE ALBIN                       X JUSTICE PATTERSON                   X JUDGE RODRÍGUEZ (t/a)               X JUDGE CUFF (t/a)                    X TOTALS                              6                                              30

STATE OF NEW JERSEY VS. RAMIER A. DUNBAR

STATE OF NEW JERSEY VS. RAMIER A. DUNBAR
 A-5722-12T2

In response to a report of a shooting, officers
arrived within moments at a location where approximately
thirty persons had congregated. The officers' attention
was drawn immediately to defendant, who appeared nervous
and briefly ducked into an alley as others dispersed.
Defendant walked away, keeping the marked patrol car in
view, while the officers attempted to speak to him about
the report. In response, defendant merely continued to
walk away, looking back over his shoulder. One officer
stepped out of the patrol car and asked defendant to stop.
Defendant began to run, then discarded a handgun. We find
the facts, when combined, established reasonable suspicion
making the stop lawful. We therefore reverse the trial
court's order suppressing the evidence. 02/26/24

STATE OF NEW JERSEY VS. J.B.W.

STATE OF NEW JERSEY VS. J.B.W.
A-0527-13T4

The question presented is whether the term "youth
serving organization," as defined in N.J.S.A. 2C:7-22,
excludes organizations that work in cooperation with a
public school and its staff to promote a school program.
We conclude that such organizations are not excluded.
02/24/14

STATE OF NEW JERSEY VS. DANIELLE N. DIANGELO

STATE OF NEW JERSEY VS. DANIELLE N. DIANGELO

A-2230-11T1

We consider whether the scope of the Supreme Court's holding announced in State v. Hernandez, 208 N.J. 24 (2011), addressing jail credit calculations, extends to a defendant sentenced to a custodial term for a violation of probation (VOP). We conclude the public policy expressed by the Court in Hernandez equally applies to VOP sentences. Following this policy, we determine the issuance of the VOP statement of charges to a defendant held in custody triggers the right to receive jail credits against the VOP sentence for a defendant's period of pre-adjudication custody, as well as against the new offense, irrespective of whether a VOP summons or warrant was issued. Accordingly, the trial court's order denying defendant's application for jail credits against her VOP sentence is reversed. 02/13/14

STATE OF NEW JERSEY VS. RAYMOND E. TROXELL

STATE OF NEW JERSEY VS. RAYMOND E. TROXELL

A-3730-10T2

Defendant was convicted of murder as an accomplice to his co-defendant, Marsh. The jury answered a specific interrogatory finding that defendant "as an accomplice [to Marsh] procured the commission of the offense by payment or promise of payment . . . ." N.J.S.A. 2C:11-3(b)(4). The finding of this "triggering event" made defendant eligible for a mandatory sentence of life without parole. The jury subsequently found aggravating factor (e), resulting in imposition of the mandatory sentence.

On appeal, defendant argued for the first time that the judge was required to provide the jury with instructions that permitted it to return a "non-unanimous" verdict on the triggering event, analogizing the situation to prior death penalty jurisprudence which required such a charge.

We concluded that, pursuant to the 2007 amendments that repealed New Jersey's death penalty and made significant changes to N.J.S.A. 2C:11-3, such an non-unanimity instruction is not required or appropriate, nor was there any independent constitutional basis requiring
the instruction. We affirmed defendant's conviction and sentence. 02/13/14  

State v. Joseph Diorio (A-110-11; 069597)

State v. Joseph Diorio (A-110-11; 069597)

 For purposes of the statute of limitations, when a
defendant engages in a scheme to obtain the property
of another by deception, theft by deception is a
continuing offense. If the scheme involves the
promise to pay at a later date, the limitations period
does not commence until the day after payment is due.
Money laundering is a continuous offense only when
there is evidence of successive acts that facilitate
the common scheme to defraud. Applying these
principles here, the statute of limitations on the
theft by deception charge expired prior to return of
the indictment, thereby barring Diorio’s prosecution
for that offense. In contrast, the money laundering
charge was timely since the relevant transactions
occurred within five years before the indictment was
filed. 2-12-14

State v. Fedner Pierre-Louis (A-61-12; 071552)

State v. Fedner Pierre-Louis (A-61-12; 071552)

 The trial court’s findings were not sufficient on
either prong of the Strickland/Fritz standard to allow
for a definitive ruling on defendant’s PCR petition or
appellate review of that decision. 2-10-14

State v. Derrick Brown, Leroy Cartarphen, and Kareem Strong

 State v. Derrick Brown, Leroy Cartarphen, and Kareem
Strong (A-113-11; 070200)

 The State did not establish by a preponderance of the
evidence that 820 Line Street in the City of Camden,
although in decrepit condition, was abandoned or that
defendants were trespassers, thus failing to justify
the warrantless search of the property. 1-29-14

State v. Jarrett Parker (A-67-11; 068966)

State v. Jarrett Parker (A-67-11; 068966)

 In accordance with N.J.R.E. 405(a) and 608, an alias
which appears on a defendant’s prior judgment of
conviction may not be used for impeachment purposes in
a future trial unless the alias was the basis for the
prior conviction. Thus, the State’s use of Parker’s
aliases to demonstrate his character for
untruthfulness constituted error warranting reversal since the aliases were not the subject of his prior
convictions. 1-15-14

State v. Raymond D. Kates (A-40-12; 070971)

 State v. Raymond D. Kates (A-40-12; 070971)

 The judgment of the Appellate Division is affirmed
substantially for the reasons expressed in Judge
Ostrer’s opinion below. Deprivation of a defendant’s
right to counsel of choice is only found where, as
here, a trial court denies an adjournment without
properly considering the relevant factors or abuses
its discretion in doing so. 1-14-14

Arrested in Edison? Hire an Edison Criminal defense Attorney

Arrested in Edison? Hire an Edison Criminal defense Attorney

Kenneth Vercammen's Law Office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.

Try to Avoid Some of the Consequences of a Criminal Guilty Plea:

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. If you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

8. You must wait 5-10 years to expunge a first offense. 2C:52-3

9. You could be put on Probation.

10. You may be required to do Community Service.

Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal and serious motor vehicle violations.

When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, surcharges and car insurance increases, you need excellent legal representation.

Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Ave.

Edison, NJ 08817

732-572-0500

Toll Free 1-800-NJLAWS7 (1-800-655-2977)

Personal Injury and Criminal on Weekends 732-261-4005

BeNotGuilty. com

Too often lawyers throw up their hands when a client presents a ticket involving Drug Possession, Driving While Suspended, DWI or Assault. While defense of criminal court charges involving serious motor vehicle charges may become an involved process requiring commitment and persistence, there are a number of viable defenses and arguments that can achieve a successful result. Rather than simply suggest that a client plead guilty and avoid trial, an attorney should accept the challenge and apply his best legal talents to protect the client’s rights.

1. The In-Office Interview at the Law Office

We advise potential clients to bring in a copy of the complaint, all their papers in connection with their case, accident report, and any documents they received from the Motor Vehicle Commissions. Often times I will instruct them to write a confidential narrative if it is a case that is fact- specific or involves a great deal of detail, such as an assault case.

When the client is first in the office, we have them fill out the Confidential New Criminal Case Interview Sheet. We obtain background information such as their name, address, the offenses charged, date of the persons arrest, other witnesses, statements given to them by the police, their occupation and information regarding prior criminal convictions and prior motor vehicle convictions. Our interview sheet also asks if there is anything else important, such as a medical condition that affects their case. This form will also let us know whether or not the client will follow instructions and cooperate with us.

If they refuse to provide information we may have a problem client.

After reviewing the summons and the interview sheet, I ask a series of questions of the client. We request the client wait until the end of the interview before explaining their side of the story. We also ask them if there is anything else of importance in connection with the case that we should know. The client may have pending serious criminal charges in another state or country. I usually open up our statute book and show the clients the specific language of the offense they are charged with and explain to them the maximum penalties that could be imposed. By understanding the charges they are facing, my clients are more likely to realize the seriousness of the offense and pay our retainer.

2. Retaining the Attorney

             Rule 1:11-2 of the Rules of Professional Conduct indicate a retainer letter or written statement of fees is required for new clients. I also provide all my clients with written information explaining how to appear in court, information on surcharges, information on points, and information regarding substance abuse treatment, if applicable.

Once we receive our retainer (are paid), we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor/district attorney and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case and to inquire who handles discovery. We check the Lawyers Diary to determine who are the judges and prosecutor/district attorneys for the county or town. It is important to learn about the judge and the prosecutor.

We require a great deal of cooperation from our clients in an effort to help keep their costs reasonable. We require our clients to take photographs of accident sites and prepare diagrams and provide us with the names, addresses, and telephone numbers of witnesses.

I recommend that my clients provide me with a list of between 10 to 15 reasons why they should not go to jail and why court should impose the minimum license suspension. We recommend they obtain a Motor Vehicle Abstract. This provides us with information for mitigation of penalties and also provides information to be considered by the judge in sentencing.

3. Post Interview Work

             Many states have programs for first time offenders who have never previously been arrested or previously convicted of a criminal offense. Again, to avoid embarrassment it is a good idea to speak with the prosecutor/ district attorney and the police officer because they may have a criminal abstract to indicate that the client is not eligible for a diversions type program.  We also make a Motion to Suppress where there is a question regarding the validity of a stop or search. Any other Motions to Dismiss should be made in writing such as statue of limitations or lack of jurisdiction.

             Oftentimes in cases that deal with just one triable issue such as the admissibility of a blood test result in alcohol or drugs, we can make a Motion in Limine or suggest a pre-trial conference. It is often a good idea to try to know how the judge will decide in order to save us a three-hour trial on a complicated case. If the court rules against us in the Motion in Limine we can enter a guilty plea contingent upon reserving your right to appeal on that one issue.

4. Discovery Phase

             Oftentimes we do not receive all of the discovery that we request. We send a letter to the prosecutor requesting additional discovery and request that the discovery be provided within 10 days. If we do not receive the discovery with 10 days then we prepare a Motion to Compel Discovery.

             In the case involving essential witnesses, we occasionally write to the witnesses and ask them to call us so that we can find out what really happened. If possible I have a law clerk call up after we send the initial letter. The attorney cannot testify if the witness provides an inconsistent statement but our law clerks can testify. I sometimes speak to friendly witnesses myself later to make a decision to determine whether or not the witnesses are credible.

Upon receiving discovery, we forward a photocopy of all discovery to our client. We then discuss with the client whether or not they have a reasonable prospect of winning.

In drunk driving cases we review the videotape with the client prior to the trial date and sometimes make arrangements to retain an expert.

5. Preparing for Court

             If it is a drug case, we should make an objection to the entry of the lab certificate as evidence at trial. We are also under a responsibility to provide any reciprocal discovery to the prosecutor. Occasionally, in a court where there is only one prosecutor you should call the criminal court prosecutor ahead of time to see if a matter can be worked out or plea bargained. Some Criminal prosecutors in lower courts work part time and are not compensated for the many telephone calls they get in their offices.                  

             If we discover a favorable case, we make a copy for the judge, prosecutor, and client. Never assume the part time prosecutor or judge is familiar with all the laws. We can prepare a Subpoena ad Testificandum for witnesses to testify and Subpoena Duces Tecum for witnesses to bring documents.  We have our clients hand deliver the Subpoenas and write out their own check for the subpoena fees. It is better to be over-prepared than under-prepared.

             Over the years I have made it a practice to build up files on particular legal subjects with complete case law. I now have files for drunk driving, driving while suspended, drug possession, assault, and careless driving.

             When we receive the hearing notice we send a follow up reminder to the client to be on time, bring all papers and call 24 hours ahead to confirm the case is still on the calendar. The client should be prepared and look neat. The Grateful Dead and Budweiser T-Shirts should be replaced with something that looks presentable. They should have their pregnant wives sitting next to them.                                    

             Preparation is the key to winning cases or convincing the prosecutor of exceptional defenses. Upon arrival at court, we will attempt to ascertain if the police officer is available. Sometimes the police officer is on vacation, retired, or suspended. This may assist your ability to work out a satisfactory arrangement.

             There is no prohibition against speaking with States witnesses in a non-threatening way. Outside of the courtroom, I usually call out the name of the non-law enforcement States witnesses to determine what their version of the facts are. If we have an excellent trial issue but believe the judge is going to rule against us, we bring an appeal notice and file it with the Court on the Record. I keep in my car blank forms for Order to Compel Discovery, Order Mark Try or Dismiss, Order to be Relieved, and an Appeal Notice.

6. Plea to a Lesser Defense

             If the client is going to enter a guilty plea to an offense, it is important they understand what the offense is and put a factual basis on the record.  The Judge will be angry if a person is pleading guilty to a drunk driving case and the judge asked them what he had to drink, the person insists he only had one beer. The judge will send us back to our seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record.

Having previously obtained for my clients their favorable background, I usually put on the record reasons why the judge should give them the minimum penalties.                                            

Letters of reference and character reference letters are helpful in cases where the judge has wide discretion in his sentencing. After the client pleads guilty, it is a good idea to also ask the client on the record if he has any questions of myself or of the court.

             7. Conclusion

Whether or not we have a trial or there is a plea to reduce the charge, I wish to walk out knowing I did the best you could for the client. Even if I lose, I want to have been such an articulate advocate that the client walks out saying my attorney is great but the judge is wrong. We try to be innovative and prepare new arguments. We handle a substantial amount of criminal court and personal injury cases and have put case law and certain legal defenses on our website: www.NJLaws.com.

             About the Author: Kenneth A. Vercammen is an Edison, Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on criminal court and litigation topics.

Criminal Indictable and Disorderly Offense  Penalties

Disorderly person criminal offenses- ex Simple Assault, shoplifting & cases in Municipal Court

                                          Jail 2C: 43- 8               jail  6 month maximum

                                                                              probation 1-2 year                                     

                                                                              community service  180 days maximum 

                                                                              mandatory costs, VCCB and other penalties

Disorderly- fines:                    2C: 43- 3               $1,000 Fine  maximum                

            There are many other penalties that the court must impose in criminal cases.  There are dozens of other penalties a court can impose, depending on the type of matter.                        

            Drug offenses: in addition to above penalties, mandatory minimum $500 DEDR penalty, mandatory lab fee and other court costs over $200, mandatory 6 month- 2 year loss of license, Probation, drug testing and other penalties. If attorney's Conditional Discharge motion is granted for first time offender. penalty can be reduced. In certain drug cases, the fine can be up to $75,000.

-Petty Disorderly person - 30 days jail   maximum

Petty DP $500 max Fine, VCCB and other penalties

            Indictable Criminal Penalties    [Felony type]  [ Superior Court]

                                                  Jail  potential          Fine max                        Probation

            1st degree                    10- 20 years                      $200,000               [presumption of jail]

            2nd degree                   5-10 years                         $150,000               [presumption of jail]

            3rd degree                    3- 5 years                          $15,000                 1 year- 5 year

            4th degree                    0- 18 months                     $10,000                 1 year- 5 year

            There are many other penalties that the court must impose in criminal case.  There are dozens of other penalties a court can impose, depending on the type of matter. Read www.njlaws.com/jail_for_crimes_and_disorderly_conduct.html

            If you or a family member are charged with a criminal offense, you should retain an experienced criminal attorney to argue to reduce the penalties! 

Research by:    KENNETH  VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

 2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

More information on Fines, jail and penalties on website: www.njlaws.com

[rev 10/17/13  Fines, Jail penalty criminal]                                                                                                                                                                           

State v. David M. Gibson (A-27-12; 070910)

State v. David M. Gibson (A-27-12; 070910)

 There is insufficient evidence in the record to
support a finding that Officer Comegno had probable
cause to arrest Gibson for defiant trespass;
therefore, the subsequent search at the stationhouse
was unconstitutional and the drug evidence seized
during the search must be suppressed. 1-7-14

State of New Jersey v. Reinaldo Fuentes

State of New Jersey v. Reinaldo Fuentes (A-18-12;
070729)

 Because the trial court did not adequately explain its
findings with respect to the aggravating factors, or
its balancing of the aggravating and mitigating
factors pursuant to N.J.S.A. 2C:44-1(a) and (b), the
matter is remanded for resentencing. 1-7-14

STATE OF NEW JERSEY VS. IVONNE SAAVEDRA

STATE OF NEW JERSEY VS. IVONNE SAAVEDRA
 A-1449-12T4

Defendant was employed by the North Bergen Board of
Education as a clerk to the child study team. She was
indicted with one count of second-degree official
misconduct and one count of third-degree theft for
allegedly taking confidential student records to assist her
attorney in the prosecution of her civil employment
discrimination claims against her employer. Relying on
Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010),
defendant unsuccessfully moved to dismiss the indictment
before the trial court.

We granted leave to appeal and now affirm. We reject
defendant's argument that she had an absolute right to take
confidential student records to support her wrongful
termination suit against the Board. Quinlan does not
establish a bright-line rule decriminalizing conduct that
is otherwise sufficient to support an indictment under
State v. Hogan, 144 N.J. 216 (1996). The trial judge was
not required to apply the multi-factor test in Quinlan to
determine whether the State presented a prima facie case to
support the indictment against defendant. Defendant is
free, however, to raise Quinlan at trial to negate the
state of mind requirements of official misconduct under
N.J.S.A. 2C:30-2a and theft under N.J.S.A. 2C:20-2b(2)(g),
as an affirmative defense.

Judge Simonelli dissents. She would have dismissed the
indictment with prejudice on fundamental fairness grounds. 12/24/13

STATE OF NEW JERSEY V. TIMOTHY ADKINS

STATE OF NEW JERSEY V. TIMOTHY ADKINS
 A-5748-12T4/A-5749-12T4(CONSOLIDATED)

Addressing the impact of Missouri v. McNeely, ___ U.S.
___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), on pending
cases involving warrantless blood tests, we reversed a
trial court order suppressing blood evidence in a DWI and
assault-by-auto case. Consistent with long-standing
rulings of the New Jersey Supreme Court, the police
obtained the blood sample from defendant without a search
warrant. Thereafter, the United States Supreme Court
unexpectedly changed the legal landscape by issuing a
ruling that construed the Fourth Amendment more broadly
than our Court.

On these facts, under Davis v. United States, ___ U.S.
___, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011), suppression
would not be the appropriate remedy under federal
constitutional law, because the New Jersey police were
acting lawfully under established New Jersey precedent at
the time of the search. Further, had our own Supreme Court
issued the McNeely ruling as a construction of the New
Jersey Constitution, the ruling would not have been applied
retroactively. Under these unusual and very limited
circumstances, we held that suppression of the evidence in
this case was not required. 12/20/13

State of New Jersey v. Oscar Porter (A-91-11; 069223)

State of New Jersey v. Oscar Porter (A-91-11; 069223)

 With respect to the claim of ineffective assistance of
trial counsel based on failure to investigate an alibi
defense, defendant made out a prima facie showing and
raised material facts in dispute, therefore entitling
him to an evidentiary hearing on that issue. 12-19-13

J.B., ET AL. VS. NEW JERSEY STATE PAROLE BOARD

J.B., ET AL. VS. NEW JERSEY STATE PAROLE BOARD

A-5435-10T2/ A-1459-11T2/ A-2138-11T3/ A-2448-11T2/A-3256-11T2(CONSOLIDATED)

Appellants are individuals who have been convicted of sexual offenses, have completed their respective prison terms, and are now being monitored by respondent New Jersey State Parole Board as offenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"). N.J.S.A. 2C:43-6.4. They challenge the constitutionality of certain terms of supervision the Parole Board has imposed upon them and other released sex offenders subject to CSL or PSL, mainly (1) restrictions on access to social media or other comparable web sites on the Internet; and (2) mandated submission to periodic polygraph examinations.

In the published portion of our opinion, we reject appellants' facial challenges to the Internet access restrictions, subject to their right to bring future "as-applied" challenges if they avail themselves of the Parole Board's procedures for requesting specific permission for more expanded Internet access and are then denied such permission.

As indicated in the unpublished portion of our opinion, we do not decide at this time the merits of appellants' constitutional attack upon the polygraph requirements. Instead, we refer that subject matter to the trial court for supplemental proceedings, pursuant to Rule 2:5-5(b), for the development of an appropriate record, including scientific or other expert proofs, and for fact-finding. Such proofs and fact-finding shall focus upon the alleged therapeutic, rehabilitative, and risk management benefits of polygraph testing when it is conducted within the specific context of post-release oversight of sex offenders. 11-26-13

 

State of New Jersey v. Troy N. Tate (A-99-11; 069314)

 State of New Jersey v. Troy N. Tate (A-99-11; 069314)

 A conviction for possession of a weapon for an
unlawful purpose must merge with a conviction for
aggravated manslaughter when the evidence does not
support the existence of another unlawful purpose for
possession of the weapon. 11-12-13

STATE OF NEW JERSEY VS. ANGELIQUE STUBBS ET AL.

 STATE OF NEW JERSEY VS. ANGELIQUE STUBBS ET AL.
AND STATE VS. JULES L. STUBBS ET AL.
 A-1199-10T2/A-2942-10T2(CONSOLIDATED)

Husband and wife, Jules and Angelique Stubbs, were
convicted of various CDS-related offenses. As to the wife,
we remand for a hearing as to the admissibility of the form
United States Currency Seizure Report, which she signed,
pertaining to $4831 in cash seized from defendants' home
along with a substantial quantity of drugs. The State
argued that the wife, by signing the form, claimed
ownership of the cash, which demonstrated she joined in her
husband's drug-related activities. We conclude the form
must be viewed as an adoptive admission under N.J.R.E.
803(b)(2); and, since the form was a statement of a
criminal defendant, N.J.R.E. 803(b), the State as proponent
was required to show, in a preliminary hearing pursuant to
N.J.R.E. 104(c), that the statement was admissible. To do
so, the State must show the wife was aware of and
understood the contents of the allegedly adopted statement,
and she unambiguously assented to it. We order a new trial
for the wife only if the trial court determines on remand
that the form was not properly admitted as an adoptive
admission. 11-07-13