Text message was not harassment for domestic violence

Text message was not harassment for domestic violence

M.D.,

Plaintiff-Respondent,

v.

B.P.,

Defendant-Appellant.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04536-11T1

Unpublished.) RECORD IMPOUNDED

____________________________________

August 13, 2014

Submitted January 15, 2014 - Decided

Before Judges Grall and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-2010-12.

B.P., appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant B.P., who represents himself, appeals from the May 9, 2012 final restraining order (FRO) that a Family Part judge entered against him following a hearing under the Prevention of Domestic Violence Act (DVA), N.J.S.A.2C:25-17 to -35. Having considered defendant's arguments in light of the trial transcript and controlling law, we reverse and remand for a new hearing.

During a relationship that lasted from August 2008 through December 2011, plaintiff and defendant had a daughter, who is now five years old. In the third week of December 2011 defendant moved out of the room where he and plaintiff lived, which they were renting from her uncle. In March 2012, defendant filed a complaint seeking custody of their daughter. The next month, April 2012, plaintiff filed a domestic violence complaint against defendant. In the complaint, plaintiff alleged defendant had harassed her by sending her an excessive number of text messages on April 22 and 24, 2012.

According to the complaint, plaintiff was staying at a "protected address" and defendant's text messages said he knew where she was, which made her nervous because she feared him. Although plaintiff had asked defendant to stop calling, texting, and attempting to reconcile, defendant did not stop. Instead, he began to send long messages accusing her of having relationships with men and women. The complaint further alleged:

[I]n March, the [plaintiff] was walking to the Police Dept[.] to drop off their [daughter.] [T]he [defendant] was stalking her[.] [H]e got out of the car . . . and took the child[.] [T]here were no fights but [plaintiff] was surprised to see him [] because he is not supposed to know her whereabouts. Now the [defendant] is sending her messages which states [sic] he knows her[] home address, he has friends that are watching her, because they live close to her. During the last FRO[] hearing the [defendant] was told to leave the [plaintiff] alone, and to keep the communication limited to their [daughter]'s well-being only[.] [T]he [defendant] has refused to follow said recommendation[.] This is making the [plaintiff] uncomfortable and afraid.

The complaint referred to a hearing concerning a previous domestic violence complaint that had ultimately been dismissed. Based on the new complaint, the court issued a temporary restraining order and scheduled a final hearing for May 3, 2012.

Plaintiff and defendant were the only witnesses to testify at the hearing. Plaintiff testified that she had to leave the room she was renting from her uncle because defendant would not leave her alone. Because defendant was bothering other people who lived at the same location, and had threatened to take their daughter away from plaintiff, plaintiff spoke with someone employed by the Division of Youth & Family Services (the Division),¹ who helped her move to a confidential location. Plaintiff moved to the location in late February or early March, 2012.

Around the time plaintiff moved to the confidential location, defendant filed a complaint seeking custody of their daughter. The following month, plaintiff filed the domestic violence complaint that resulted in the FRO at issue in this appeal.

Although plaintiff alleged that defendant had harassed her on April 22 and 24 by sending her excessive text messages, she admitted at trial that on April 20, she initiated communications with defendant by sending him a text message to come and get their daughter. Defendant responded with a text message and the parties continued to exchange text messages throughout the day. The following day, April 21, they exchanged no messages. The next day, April 22, was the first of the two days on which, as alleged in the complaint, defendant began to harass plaintiff by sending her excessive messages.

On April 22 plaintiff and defendant separately drove to a police station where plaintiff dropped off her daughter and defendant picked her up. Defendant said he wanted to speak to plaintiff about the custody case. Because plaintiff was in a taxicab and had to leave, she told defendant to call her later. That night, between 7:00 and 8:32, defendant received the six messages that she claimed were harassing.

Although plaintiff had her cell phone with her when she testified, and though she had not erased the text messages that she claimed constituted harassment, neither the lawyers nor the court had her read all of the messages into the record. Consequently, the content of some of the messages is not entirely clear. In the first message, defendant said that he was waiting for plaintiff, that he had tried to call her, and she did not answer. Although the timing is uncertain, it appears that plaintiff and defendant spoke after defendant sent the first message. During the conversation, defendant discussed reconciling with plaintiff. Plaintiff said she would not go back with him, and he said he would change, but she rejected his offer to reconcile. She said that she had to leave and told him not to bother her anymore. Following the phone call, defendant sent the remainder of the text messages plaintiff complained about.

Plaintiff testified that in the other messages defendant said he knew where she was, discussed reconciliation, and accused plaintiff of going out with men. Defendant next sent her a text saying that when he could not sleep, he says "whatever comes to mind." Those messages were followed by one accusing plaintiff of going out with women, and others accusing her of drinking alcohol or doing drugs. He also said that he had acquaintances who knew where she lived. Plaintiff responded to the messages by telling defendant to leave her alone.

The next day, April 23, plaintiff received three messages from defendant between 10:16 in the morning and 7:53 in the evening. She did not allege in her complaint that those messages were part of defendant's harassment of her. In the messages, defendant stressed the urgency of plaintiff calling him about custody because the following day he was going to see his attorney. He also "placed another message telling [plaintiff] that . . . the daughter of the . . . man that lived next door was . . . sending greetings."

On April 24, the second day plaintiff claimed to have received harassing text messages, defendant sent her a message at 5:00 in the morning. In that message, defendant said that he knew everything about plaintiff. Later that day, defendant sent either two or three other messages, one at 10:13 a.m. and one at 6:39 p.m. In the morning message, defendant asked plaintiff if their daughter could call him, and asked plaintiff to call him back; otherwise, he would make a report to the Division. Plaintiff explained that the messages made her anxious and nervous, and that she was fearful because of the way defendant was acting.

During both direct and cross-examination, plaintiff testified that at some point on April 22, defendant sent her a picture of the woman he said he intended to marry. He followed up with a message telling plaintiff the woman's name. Defendant also told her that though the woman was a very lovely person, he wanted plaintiff to know that she was the first love of his life. Then defendant said he wanted to talk to plaintiff about reaching a custody agreement so that they did not have to go to court.

Plaintiff conceded on cross-examination that defendant never sent her a text saying that he knew where she was staying. She claimed, however, that defendant made the statement in a phone call. Plaintiff was also unable to point to a text message in which defendant accused her of having relationships with men and women. When confronted with the actual text messages and the absence of that accusation, plaintiff changed her testimony and said defendant had made the accusations either in phone calls or when they met to exchange their daughter.

Plaintiff also testified about earlier incidents of alleged domestic violence between her and defendant, some of which formed the basis for her first complaint. She explained that she had filed for a restraining order in February 2012 because defendant was "always bothering [her]" and told her things that made her afraid. He said he was going to take their daughter away and made threats based on plaintiff's immigration status. Defendant also texted her in March 2012; he told her that one of his friends had said she was living in a shelter. Plaintiff further described an incident that took place four weeks before the FRO hearing. She said that when she went to pick up her daughter from defendant at the police station, he told her that she "was going to cry tears of blood and [she] told him to let a judge decide that."

Defendant testified that he and plaintiff had once separated in November 2011 then reconciled after communicating through text messages and by telephone. After they separated permanently, plaintiff filed a domestic violence complaint against him. That complaint was dismissed in March 2012. Following the dismissal of that complaint, defendant no longer wanted to communicate with plaintiff and asked that they exchange custody of their daughter at a police station or a courthouse. Between the time the first domestic violence complaint was dismissed, and April 24, when plaintiff filed the second domestic violence complaint, the two were getting along and communicating about their daughter.

Defendant claimed that he sent a picture of the woman he intended to marry to plaintiff on April 22 so that their daughter could see the woman and understand that they would be spending time together. Defendant intended to communicate that even though he was going to remarry, his daughter would always come first. In response, plaintiff sent him a message saying "don't f*** with me, do what . . . you have to do." Defendant was served with the second domestic violence complaint at 7:16 on the evening of April 24, 2012.

Defendant disputed that he had sent plaintiff an excessive number of text messages. He claimed that he and plaintiff communicated through text messages, and he could not send long text messages so he had to break them up and send them in parts. Defendant also denied that he knew where plaintiff was staying.

Defendant claimed that the message he sent to plaintiff at 5:00 a.m. on April 24 was a mistake. He said that he prepared the message the previous evening but was interrupted by a phone call and did not send it. The next morning, at 5:00 a.m., his telephone was on a pillow and he "sort of . . . pocket dial[ed]." The message said that he accepted plaintiff for what she was, and he also accepted her way of living, because he knew all about her and her way of doing things. He again denied knowing where plaintiff was living or telling her that he knew where she was. The other messages defendant sent on April 24 were his efforts to have plaintiff permit his daughter to talk to him on the telephone.

Defendant alleged that after plaintiff filed the domestic violence complaint, her brother told him that she would dismiss it if he would dismiss his custody action. Plaintiff claimed it was defendant who approached her brother and offered to dismiss the custody suit if plaintiff would dismiss the domestic violence complaint.

The trial court found plaintiff's testimony more credible than that of defendant. The court rejected defendant's assertion that their daughter, who was at the time not even three years old, "detail[ed] behaviors by her mother with kissing other people." The court also rejected defendant's explanation concerning the text he sent at 5:00 a.m. on April 24, 2012.

The court recognized that plaintiff needed "to establish a predicate act of domestic violence from the allegations contained from the April 22 and 24 communications, as well as[] her other statements in her complaint and her testimony . . . regarding contact that she had with the defendant during [the] exchange of their daughter[.]" The court further explained that it had to evaluate the incidents of the 22nd and the 24th in the context of "how the plaintiff and defendant might interpret the communications between them."

Next, the court acknowledged that the predicate act plaintiff alleged was harassment under N.J.S.A. 2C:33-4, and under that statute a person commits an offense when,

with a purpose to harass the other person, they make or . . . cause to be made a communication here, in terms of what I find to be applicable, under sub-section A, in . . . any manner likely to cause annoyance or alarm to that person, or under sub-section C, engages in any other course of alarming conduct with the purpose to alarm or seriously annoy the other person.

The court found that plaintiff had made it clear to defendant she was willing to communicate with him "exclusively for the purpose of discussing the issues regarding their daughter." After recounting the testimony of the parties and making its credibility findings, the court made its decision:

Again, . . . there are just inconsistencies in [defendant's] version of events that cause this court not to find his testimony to be credible. As a result, I do find that the plaintiff . . . has proven a predicate act of domestic violence, under the harassment statute. Further, I find that there is a strong likelihood that in the absence of a final restraining order, that she will continue to be subjected to future acts of domestic violence.

As a result, [t]he [c]ourt finds it appropriate for a final restraining order to issue at this time.

The court issued the order and defendant appealed.

We begin with our standard of review and by reiterating established procedural and substantive legal principles that apply to domestic violence cases. The scope of our review of an FRO is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Generally, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. As our Supreme Court has explained, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. For that reason, we give substantial deference to a trial court's findings of fact and conclusions of law, and we will disturb a trial court's findings and conclusions only when they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence[.]'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

We bear in mind when applying that standard that defendants charged with domestic violence are entitled to ordinary due process protections. J.D. v. M.D.F., 207 N.J. 458, 478 (2011). Due process requires that defendants receive "notice defining the issues and an adequate opportunity to prepare and respond"; and "forbids the trial court to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint." Ibid. (citations and internal quotation marks omitted). For that reason, "trial courts should use the allegations set forth in the complaint to guide their questioning of plaintiffs, avoiding the sort of questions that induce[] plaintiff[s] . . . to abandon the history revealed in the complaint in favor of entirely new accusations." Id. at 479.

Nevertheless, if a court determines "testimony might reveal that there are additional prior events that are significant to [its] evaluation, . . . the court must recognize that if it allows that history to be expanded, it has permitted an amendment to the complaint and must proceed accordingly." Id. at 479-80. That may require, depending on the circumstances of the case, adjourning the hearing so that defendant receives proper notice defining the issues and an adequate opportunity to prepare and respond. See id. at 480.

Substantively, a trial court hearing an application for an FRO must make two determinations: whether the plaintiff has proved by a preponderance of the evidence that defendant committed an act of domestic violence; and, if so, whether a restraining order is necessary to protect the plaintiff. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). The DVA defines domestic violence as the commission of any one of the fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19(a). One of the enumerated offenses, and the one plaintiff alleged in her complaint against defendant, is harassment, N.J.S.A. 2C:33-4. The statute defines harassment in pertinent part as follows:

Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.

Two distinct elements must be established to prove the offense of harassment: a purpose to harass and an action under subsection (a), (b), or (c). See Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988). Under N.J.S.A. 2C:33-4(a), "there need only be proof of a single such communication, as long as defendant's purpose in making it . . . was to harass and as long as it was made in a manner likely to cause annoyance or alarm to the intended recipient." J.D., supra, 207 N.J. at 477.

A violation of N.J.S.A. 2C:33-4(c) . . ., by contrast, requires proof of a course of conduct. That may consist of conduct that is alarming or it may be a series of repeated acts if done with the purpose to alarm or seriously annoy the intended victim. In interpreting subsection c., which refers to serious annoyance or alarm, this Court has explained that the phrase means to weary, worry, trouble or offend.

[Id. at 478 (citation and internal quotation marks omitted).]

Our Supreme Court has recognized that "[d]rawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of ordinary domestic contretemps[] presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application." Id. at 475 (citation and internal quotation marks omitted). In view of that weighty responsibility, trial courts must be sure to carefully correlate their factual findings with the elements of a specific subsection of the harassment statute.

That is particularly so when a complaint alleges that a defendant has committed harassment by excessive "texting," which has been defined as "'[t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices.'" L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 526 (App. Div. 2011) (alteration in original) (citation omitted). There, we recognized that "[o]ur ability to instantaneously and effortlessly send electronic messages has created a gateway unfettered by reflection and open to rash, emotionally driven decisions. The ease and speed by which we transmit electronic messages has also created a commensurate expectation of an equally instantaneous response from the recipient." Id. at 534. We also recognized the corresponding strain that technology and "the complexity of human interactions . . . place on Family Part judges as they struggle to distinguish between the cases that merit judicial intervention and those that do not." Ibid.

After evaluating the record in light of the foregoing principles, we are constrained to reverse the FRO and remand for a new hearing. From a procedural perspective, the hearing was flawed. Over defendant's objection, the trial court permitted plaintiff to testify about allegations she made against defendant when she filed the previous domestic violence complaint. Those allegations were not specified in the complaint that was the subject of the hearing. The court apparently determined that plaintiff's "testimony might reveal that there [were] additional prior events that [were] significant to [its] evaluation, . . . [but did not] recognize that [by] allow[ing] that history to be expanded, it ha[d]  permitted an amendment to the complaint and [was required to] proceed accordingly." J.D.,supra, 207 N.J. at 479-80. The court made no effort to determine whether defendant was aware of the specific allegations or needed an adjournment to marshal additional evidence, arrange to present other witnesses, or otherwise adequately prepare and respond.

Substantively, it is unclear whether the court found that defendant had committed harassment underN.J.S.A. 2C:33-4(a), (c), or both sub-sections. Although the court summarized in its opinion the elements of each sub-section, when it announced its conclusion it did not correlate any facts with the elements of either. Moreover, defendant established on cross-examination that some of the text messages that plaintiff characterized as harassing involved communications about their daughter or non-threatening comments about their relationship; and some of the communications that plaintiff said frightened her were not even contained in the text messages.

The court did make a credibility determination that defendant sent one message at five o'clock in the morning. But the court did not explain whether it found under N.J.S.A. 2C:33-4(a) that the message constituted a communication that was made "at [an] extremely inconvenient hour[]," or in "any other manner likely to cause annoyance or alarm"; or whether the communication was part of a "course of alarming conduct" under N.J.S.A.2C:33-4(c). And, if the former, we question whether evidence that a text message transmitted at 5:00 a.m., absent evidence of when it was received or likely to be accessed, could alone constitute harassment under N.J.S.A. 2C:33-4(a).

For the foregoing reasons, we reverse the FRO and remand for a new hearing. We do not retain jurisdiction.

Reversed and remanded.

1  Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

Forefeiture reversed State v $4194.00 IN U.S. CURRENCY

Forefeiture reversed

STATE OF NEW JERSEY,

            Plaintiff-Respondent,

v.

$4194.00 IN U.S. CURRENCY,

            Defendant.

 NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

                                                                                    SUPERIOR COURT OF NEW JERSEY

                                                                                    APPELLATE DIVISION

                                                                                    DOCKET NO. A-4340-11T3

______________________________________________________

Argued May 28, 2014 – Decided July 31, 2014

Before Judges Messano and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Mercer County, Docket No. DC-5568-11.

Keith D. Sklar argued the cause for appellant Dontae Barnes (Law Offices of Sklar Smith-Sklar, attorneys; Mr. Sklar, on the brief).

Sean D. McMurtry, Assistant Prosecutor, argued the cause for  respondent State of New Jersey (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. McMurtry, of counsel and on the brief).

PER CURIAM

            In this civil forfeiture action, Dontae Barnes appeals from the March 19, 2012 Law Division - Special Civil Part order, which extinguished Barnes' right to his property, $4194 in currency, and vested title to that property with Mercer County.  On appeal, Barnes contends that the State failed to prove by a preponderance of the evidence a proximate and substantial connection between the $4194 and an indictable activity.  We reverse the order and remand to the trial court for entry of an order returning the currency to Barnes.

            We discern the following facts from the record.  On March 20, 2011, Trenton Police Detective Pedro Perez and Officer William Salhanick pulled over a minivan late at night in a high crime area after noticing the driver was not wearing a seat belt.  Barnes was the driver, and his friend Tyquasia Scott was in the passenger seat.  When Salhanick approached the passenger side, he observed a large amount of cash strewn over the front seat and floorboard area of the minivan.  Perez asked Barnes to step outside the vehicle while Salhanick collected the loose money.

According to Salhanick, when questioned about the source of the money, Barnes responded that he had just been released from prison and was not working, but he got the money from "just doing my thing, running the streets."  Based on his years of experience as a police officer with over 500 narcotics investigations, Salhanick understood the phrase "running the streets" to mean "selling drugs."  Neither Barnes nor Scott attempted to elude police when stopped, the police did not see or smell any controlled dangerous substances (CDS), and the police had not witnessed any activity resembling the sale or purchase of CDS.  The money was not tested for CDS residue and was not associated with any contraband in the minivan.

When the officers discovered that Barnes had an outstanding warrant, they took him into custody.  They also confiscated the currency, as they were suspicious of the funds being related to past or future drug activity, but released the minivan to Scott, because they did not suspect drug activity was "in progress."  At police headquarters, the officers counted the currency from the minivan, finding it totaled $4194.  A record check of Barnes' criminal history revealed "numerous convictions for narcotics distribution related offenses."  Based upon all the circumstances, the police decided to permanently seize the funds.  As police did not observe any indication of criminal activity in progress, no criminal charges were filed.

On June 13, 2011, the State filed a verified complaint seeking forfeiture of the $4194 pursuant to N.J.S.A. 2C:64-1.  The complaint alleged that the currency was the proceeds of illegal activity, and the concealment and transportation of the currency violated the State's prohibition against money laundering, N.J.S.A. 2C:21-25.  Barnes subsequently filed an answer denying the complaint's allegations.

At the March 15, 2012 trial, Salhanick was the sole witness for the State.  At the close of the State's evidence, Barnes moved for a directed verdict, arguing that the State's evidence did not "by any stretch of the imagination, connect the money found with any nexus of criminal activity."  The trial judge denied Barnes' motion. 

Next, Barnes, his brother, and Scott testified that the $4194 was derived from gambling earnings from a recent trip to Atlantic City.  Barnes' brother testified that prior to their trip, their cousin gave Barnes $900, and Barnes won approximately $3100 in profit from the casino.  Scott testified that she was counting the money for Barnes when they were pulled over, and the police also confiscated $1500 from her pocket, which she had received as a gift from her mother.  On cross-examination, neither witness could remember many details of their trip to Atlantic City.

Barnes testified that the confiscated money comprised of his winnings from Atlantic City, which amounted to $2600, and $1500 that Scott was in the process of handing him when the car was pulled over.  Barnes also testified that he had thrown out the receipt he received for his winnings in Atlantic City and had made no attempt to contact the casino to obtain a record of his winnings.

In rebuttal, the State presented Charles Kimmel, a Deputy Attorney General with the New Jersey Division of Gaming Enforcement.  Kimmel testified that people only receive receipts for their winnings if they established an account at the casino and were leaving the money on deposit.  In addition, Kimmel testified that the federal tax law required casinos to report winnings over $1200.

At the conclusion of the trial, the trial judge found the witnesses' accounts regarding the trip to Atlantic City to be "incredible" and replete with "many little inconsistencies."  Moreover, the judge found the circumstances around the currency to be suspect, such as the time of night, the manner in which the money was loose on the floorboards, the high crime area, and Barnes' criminal record.  The judge concluded, "[I]t's just my overall feeling in this particular case after seeing all the testimony and the witnesses . . . and the little inconsistencies here that the State has proven by a preponderance of the evidence that they're entitled to forfeiture[.]"  The judge issued an order memorializing his findings on March 19, 2012.  This appeal followed.

            On appeal, Barnes argues the trial judge erred because the State failed to carry its burden to show a "substantial connection" between the currency and criminal activity.  We agree.

            We begin by restating the basic principle that forfeitures are not favored in the law.  State v. Pontiac Trans Am, 98 N.J. 474, 481 (1985); State v. One 1985 Ford Bronco, 261 N.J. Super. 643, 646 (App. Div. 1993).  Forfeiture of property seized by the State must be done pursuant to New Jersey's forfeiture statute, N.J.S.A. 2C:64-1 to -9.  Further, forfeiture statutes must be strictly construed against the State and "in a manner as favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation."  State v. Seven Thousand Dollars, 136 N.J. 223, 238 (1994) (internal quotation marks and citations omitted).

Forfeiture proceedings are in rem proceedings "brought not against the owner or possessor of the property but . . . against the property."  Id. at 232-33.  The action is brought against the property because "[t]he theory of forfeiture is 'based on the misuse of the property rather than resulting from the commission of an offense by its owner or user.'"  Id. at 233 (quoting State v. One 1986 Subaru, 230 N.J. Super. 451, 455 (App. Div. 1989), aff'd in part, rev'd in part, 120 N.J. 310 (1990)). 

            A forfeiture may be brought against two types of property: prima facie contraband and derivative contraband.  Ibid.  Prima facie contraband is defined as:

Controlled dangerous substances, firearms which are unlawfully possessed, carried, acquired or used, illegally possessed gambling devices, untaxed or otherwise contraband cigarettes or tobacco products, untaxed special fuel, unlawful sound records and audiovisual works and items bearing a counterfeit mark.

[N.J.S.A. 2C:64-1(a)(1).]

In contrast, derivative contraband "is itself innocent in nature but has been used or is intended to be used in furtherance of an unlawful activity or is the proceeds of illegal activities."  Seven Thousand Dollars, supra, 136 N.J. at 233 (citing N.J.S.A. 2C:64-1(a)(2)-(4)).  It is undisputed that the State is seeking the currency at issue based on a claim that it is derivative contraband.

Unlike prima facie contraband, derivative contraband is not automatically forfeited to the State.  N.J.S.A. 2C:64-3.  Rather, to obtain a forfeiture of derivative contraband, the State must bring a civil action within ninety days of its seizure.  N.J.S.A. 2C:64-3(a).  For a successful forfeiture of derivative contraband, there must exist "a direct causal relationship between the use of the property and the unlawful activity."  State v. One 1986 Subaru, 120 N.J. 310, 320 (1990) (internal quotation marks and citation omitted).  The State must prove by a preponderance of evidence that the property is connected to an indictable offense.  Seven Thousand Dollars, supra, 136 N.J. at 233.  As a mere causal relationship is not sufficient, the State carries the burden to "prove that the connection is proximate and substantial."  Id. at 235.  Even so, the statute does not require that anyone actually be charged with the indictable activity.  See State v. One 1988 Honda Prelude, 252 N.J. Super. 312, 315 (App. Div. 1991) (noting that even when charges are dismissed by the State, courts still permit forfeiture); State v. Rose, 173 N.J. Super. 478, 483-84 (App. Div. 1980) (finding that seized money could be detained for forfeiture proceedings, even if the defendant was not indicted or was acquitted).

            Establishing the proximate and substantial connection requires the court to make a case-by-case determination based on the individual facts.  Seven Thousand Dollars, supra, 136 N.J. at 238.  Only after the State has satisfied its burden does the burden shift to the "owner" of the money to provide evidence of its legitimacy.  Ibid. 

            In Seven Thousand Dollars, a seminal case concerning derivative forfeiture, the police seized $7000 from under the passenger seat during a traffic stop where drug paraphernalia was also present, as well as a cell phone and two beepers.  Id. at 227-28.  A certified drug dog reacted to the money and the scale, indicating the presence of drug residue.  Id. at 228.  The owner of the money claimed the funds were proceeds from the sale of property and he intended to use those funds to buy a car.  Id. at 228-29.  In the forfeiture proceeding, the trial court concluded that it was "more likely than not" that the money "was being used illegally in connection with a drug operation" and ordered it forfeited.  Id. at 231.

The Supreme Court found that the link between the money and the alleged criminal offense, possession with intent to distribute CDS, was too "weak" to carry the State's burden, noting that the only concrete evidence was the presence of the money and the drug paraphernalia in the car.  Id. at 240.  The State did not produce records of drug transactions attributable to the owner, or demonstrate he had been involved in or suspected of illegal drug activity prior to the stop, or planned such activity for the future.  Ibid.  The Court found that while the State had a general suspicion that an illegal drug deal had or was going to take place, "[t]he record contain[ed] no indication of when any drug deal was to take place and why the State believed that [the owner] would use this specific $7000 in that deal."  Ibid.  The Court concluded that the State failed to meet its burden as "[a]lthough the State's evidence raise[d] a suspicion that a crime may have been or would have been committed at some time, it [did] not show that [the owner] was going to use the seized $7000 to finance a drug transaction."  Id. at 241.

Applying the above principles, we find that the State's evidence failed to demonstrate with the necessary specificity that Barnes' currency had a direct causal relationship to criminal activity.  See One 1986 Subaru, supra, 120 N.J. at 320.  The police did not see or smell any CDS, find any drug paraphernalia, observe any illegal transactions, test the money for CDS residue, or discover any contraband in the minivan.  Indeed, they released the minivan because they did not think any drug activity was then occurring.  The manner in which the money was scattered on the floor of the vehicle, the ambiguous statement attributed to Barnes that he acquired the money by "running the streets," the time of night, and the area of the stop, do no more than create mere suspicion of criminal activity, which is simply not enough.  See Seven Thousand Dollars, supra, 136 N.J. at 234-35.

As the State did not establish the necessary causal relationship to indictable criminal activity in its case-in-chief, the trial judge should have granted Barnes' motion for directed verdict when the State rested.  See id. at 238 (noting that only when the State has demonstrated a "direct causal connection to unlawful activity" does the burden shift to the person challenging the forfeiture to show a legitimate use). 

A defendant may make "[a] motion for judgment . . . either at the close of all the evidence or at the close of the evidence offered by an opponent."  R. 4:40-1.  In determining a directed verdict motion under Rule 4:40-1, the court uses the standard "for a motion for involuntary dismissal under Rule 4:37-2(b)."  Alves v. Rosenberg, 400 N.J. Super. 553, 565 (App. Div. 2008) (citing Dolson v. Anastasia, 55 N.J. 2, 5 (1969)).  That is, the motion must be denied if reasonable minds could differ regarding "whether 'the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor' of the party opposing the motion[.]"  Dolson, supra, 55 N.J. at 5 (quoting R. 4:37-2(b)).  We "employ[] the same standard on review as the trial court did in deciding the defendant's motion for a directed verdict."  Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 108 (App. Div.), certif. denied, 156 N.J. 407 (1998).   

We find that the evidence at the close of the State's case-in-chief, giving all reasonable inferences in favor of the State, failed to establish the requisite connection between the money and criminal activity, thereby making a directed verdict appropriate.  See Dolson, supra, 55 N.J. at 5.  Since the directed verdict motion should have been granted, the evidence Barnes presented regarding his trip to Atlantic City should never have been considered by the judge.  Thus, the trial judge's credibility determination regarding the proffered legitimate origin of the money is not relevant to our determination. 

In sum, the State did not meet its burden of proving that the seized money was proximately and substantially connected to criminal activity.  Thus, Barnes had no burden to prove a legitimate source.

Reversed and remanded to the Law Division for entry of an order vacating the order for forfeiture of the $4194 and returning the currency to Barnes.

 

State v. Bruno Gibson (A-11-13) (072257)

State v. Bruno Gibson (A-11-13) (072257) 

Due to the fundamental differences between a pre-trial motion to suppress and a trial on the merits, the best 1practice is to conduct two separate proceedings. However, the motion record may be incorporated into the trial record if both parties consent and counsel are given wide latitude in cross-examination. Where the evidence from a pre-trial hearing is improperly admitted at the trial on the merits, the correct remedy is remand for a new trial.

STATE OF NEW JERSEY VS. JUNE GORTHY A-2678-09T2

STATE OF NEW JERSEY VS. JUNE GORTHY 

A-2678-09T2 

We affirm a trial judge's refusal to allow a defendant who was otherwise competent to stand trial to waive the insanity defense. As called for in State v. Handy, 215 N.J. 334 (2013), the judge engaged in a thorough and searching inquiry of the defendant, her psychiatric history, and the circumstances of the offense. His conclusion was amply supported by the record. Despite defendant's competence to stand trial and to raise substantive defenses to other crimes simultaneously tried, she was unable to make a knowing, voluntary, and intelligent waiver of the insanity defense on the charge of stalking. 

STATE OF NEW JERSEY VS. SALADIN THOMPSON A-1375-11T4/A-2154-11T4

STATE OF NEW JERSEY VS. SALADIN THOMPSON 

A-1375-11T4/A-2154-11T4 (CONSOLIDATED) 

In this appeal, we set aside defendant's convictions for murder and weapons offenses, after our earlier remand to the trial court to conduct a hearing pursuant to State v. Gilmore, 103 N.J. 508 (1986). Based upon our review of the remand record, we determined that we were unable to determine whether 

the State's exercise of seven of its nine peremptory challenges to excuse African-Americans was the product of impermissible discrimination as opposed to situation-specific bias, because the court failed to engage in the requisite "third-step" analysis established in Gilmore. 

State v. Daryel Rawls (A-18-13; 072388)

State v. Daryel Rawls (A-18-13; 072388) 

A defendant who is released on bail on one indictment, but subsequently incarcerated on a later indictment, is entitled to receive jail credit against the former indictment under Rule 3:21-8 and State v. Hernandez, 208 N.J. 24 (2011). 

State v. Jahnell Weaver (A-104-11; 069185)

State v. Jahnell Weaver (A-104-11; 069185) 

The confluence of defendant’s third-party defense strategy, the erroneous denial of his defensive use of co-defendant’s subsequent acts with the murder weapon, the denial of his motion to sever the trial, the admission of an inadequately redacted statement, and the erroneous admission of when co-defendant received the murder weapon require a new trial. The cumulative impact of these errors was not harmless. 

STATE OF NEW JERSEY VS. SALADIN THOMPSON A-1375-11T4/A-2154-11T4

STATE OF NEW JERSEY VS. SALADIN THOMPSON 

A-1375-11T4/A-2154-11T4 (CONSOLIDATED) 

In this appeal, we set aside defendant's convictions for murder and weapons offenses, after our earlier remand to the trial court to conduct a hearing pursuant to State v. Gilmore, 103 N.J. 508 (1986). Based upon our review of the remand record, we determined that we were unable to determine whether the State's exercise of seven of its nine peremptory challenges to excuse African-Americans was the product of impermissible discrimination as opposed to situation-specific bias, because the court failed to engage in the requisite "third-step" analysis established in Gilmore. 

STATE OF NEW JERSEY VS. MARK C. SHEPPARD A-1423-11T4/ A-0195-12T4

STATE OF NEW JERSEY VS. MARK C. SHEPPARD 

A-1423-11T4/ A-0195-12T4(CONSOLIDATED) 

In this appeal, we consider State v. Rose, 206 N.J. 141 (2011) in the context of when other bad acts evidence do not occur contemporaneously with the crime charged and therefore requires "intrinsic"/"non-intrinsic" analysis. A jury found defendant guilty of second-degree aggravated assault and four other offenses, arising out of the stabbing of a Hispanic man. Defendant asserts the trial judge erred by failing to 

suppress, appropriately sanitize, or properly instruct the  jury on the evidence concerning an encounter with the police that occurred three months after the stabbing, in which defendant revealed himself as a loud, aggressive, and foul-mouthed drunk, who made a single anti-Hispanic comment referencing the victim. We reverse and remand for a new trial, concluding the trial court mistakenly exercised its discretion when it admitted the bulk of the evidence concerning the prior encounter, without appropriate "sanitization" or jury instructions. In a companion case, we affirm the trial court's denial of a suppression motion and resulting conviction of weapons offenses. 

STATE OF NEW JERSEY V. JAMES W. FRENCH A-4963-13T1

STATE OF NEW JERSEY V. JAMES W. FRENCH 

A-4963-13T1 

A sentence of 90 days in jail followed by 90 days in an inpatient drug rehabilitation program does not satisfy the "fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole" mandated for the fourth-degree crime of operating a motor vehicle during a period of license suspension for multiple convictions of driving while intoxicated. N.J.S.A. 2C:40-26(b). 

STATE OF NEW JERSEY V. WILLIAM SMULLEN A-0722-12T4

STATE OF NEW JERSEY V. WILLIAM SMULLEN 

A-0722-12T4 

Defendant pled guilty in 2003 to two counts of second degree sexual assault, N.J.S.A. 2C:14-2c(4), based on having consensual sexual intercourse on two separate occasions with a fifteen-year-old girl. In this appeal from the denial of a PCR petition, we hold defendant established a prima facie case of ineffective assistance of counsel based on his attorney's failure to inform him, before he pled guilty, of the nature and scope of the community supervision for life restrictions he would face in his home state of New York, pursuant to N.J.S.A. 2C:43-6.4. We remand the PCR judge to conduct an evidentiary hearing, pursuant to Rule 3:22-10(b), to 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. State v. Nunez-Valdez, 200 N.J. 129, 138 (2009). 

STATE OF NEW JERSEY VS. ARMANDO CARREON A-5501-12T1

STATE OF NEW JERSEY VS. ARMANDO CARREON 

A-5501-12T1 

This appeal requires us to consider whether a never-licensed driver may be fined and sentenced to a custodial term under the penalty provisions of N.J.S.A. 39:3-10. Because we agree that the statute allows a fine or imprisonment but not both, even for drivers, who, like defendant, have never been licensed, we reverse defendant's sentence and remand to the Law Division for resentencing. 

State v. Santino J. Micelli, a/k/a Santino J. Miceli, a/k/a Santino Miceli (A-1-12

 State v. Santino J. Micelli, a/k/a Santino J. Miceli, a/k/a Santino Miceli (A-1-12; 070453) 

The reliability of the identifications should have been assessed at a Wade hearing before the trial court. 

State v. Shaffona Morgan (A-119-11;

State v. Shaffona Morgan (A-119-11; 069967) 

Both ex parte communications between the trial judge and jury were improper and the trial court erred in permitting the jurors to take written instructions home for the weekend. Despite those errors, the record affirmatively shows that the contacts and the decision to permit the jury to take home written instructions did not prejudice defendant and had no tendency to influence the verdict. 

STATE OF NEW JERSEY VS. ARMANDO CARREON A-5501-12T1

STATE OF NEW JERSEY VS. ARMANDO CARREON
          A-5501-12T1

This appeal requires us to consider whether a never- licensed driver may be fined and sentenced to a custodial term under the penalty provisions of N.J.S.A. 39:3-10. Because we agree that the statute allows a fine or imprisonment but not both, even for drivers, who, like defendant, have never been licensed, we reverse defendant's sentence and remand to the Law Division for resentencing. 

STATE OF NEW JERSEY VS. DONNA JONES A-0793-13T1

STATE OF NEW JERSEY VS. DONNA JONES
          A-0793-13T1

We granted the State leave to appeal from an order that suppressed the results of a blood sample taken without a warrant prior to Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), and now reverse. Defendant caused a multiple vehicle accident, resulting in personal injuries that required hospitalization. Emergency personnel took approximately thirty minutes to extricate the unconscious defendant from her vehicle and the police investigation took several hours.
It is undisputed that the blood sample was obtained consistent with New Jersey law that existed at the time. We need not decide whether McNeely should be applied retroactively because the facts support a warrantless blood sample even if McNeely applies. Although McNeely rejected a per se exigency rule, it adhered to the totality of the circumstances analysis set forth in Schmerber v. California, 384 U.S. 757, 771-72, 86 S. Ct. 1826, 1836, 16 L. Ed. 2d 908, 920 (1966), stating the metabolization of alcohol was an "essential" factor in the analysis. Further, the Court noted that the facts in Schmerber which, like here, included an accident, injuries requiring hospitalization, and an hours-long police investigation, were sufficient to justify a warrantless blood sample. 

STATE OF NEW JERSEY VS. ALFRED J. SMITH A-0173-12T3

STATE OF NEW JERSEY VS. ALFRED J. SMITH
          A-0173-12T3

In this pre-State v. Henderson, 208 N.J. 208 (2011)
matter, we reversed the denial of defendant's motion to
suppress an out-of-court eyewitness identification
following a show-up and vacated defendant's conviction. We
determined police failed to properly comply with the
recording requirements of State v. Delgado, 188 N.J. 48, 63
(2006). Specifically, they did not detail the out-of-court
identification procedures or preserve the language
exchanged between police and the witness prior to the show-
up. More important, the motion judge made flawed factual
findings following the Wade hearing and we found no support
in the record for the conclusion the victim's
identification of defendant was reliable. The victim's
description of the man who mugged her was he was "tall and
black." Scrutinizing the totality of the facts and
circumstances, we rejected as unfounded the motion judge's
finding that the victim had the ability to perceive and
accurately identify defendant as her attacker.



    

IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF P.H. A-1345-13T4

IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF
          P.H.

A-1345-13T4
We consider the application of the expungement statute, N.J.S.A. 2C:52-1 to -32, where petitioner was charged with a fourth degree offense but ultimately agreed to a violation of a statute for which he paid a civil penalty. Petitioner requested expungement of all criminal records, which was granted by the trial judge; records of the civil violation and the file of the NJSPCA were not subject to expungement.
The State appealed, advancing numerous reasons for reversal, primarily arguing the final disposition controls whether expungement relief is available. Maintaining the initial criminal charges were part of the same file that was disposed of through a plea agreement allowing defendant to pay a civil penalty, the State asserts expungement cannot be permitted. We disagreed and concluded petitioner was not convicted and the final disposition was not a plea agreement. Rather, the criminal charges were dismissed. Accordingly, expungement was permitted under N.J.S.A. 2C:52-6(a). 

STATE OF NEW JERSEY VS. CALVIN PRESLEY, ET AL. A-4816-12T2

STATE OF NEW JERSEY VS. CALVIN PRESLEY, ET AL.
          A-4816-12T2

In State v. McCann, 391 N.J. Super. 542 (App. Div. 2007), we announced a prospective "bright-line rule" that called for invalidating search warrants issued by a judge who was bound to recuse himself or herself based on a prior relationship. Upon being advised he had prosecuted one of the defendants when he was an assistant prosecutor, the trial judge recused himself. So, the question here is not one of recusal but of remedy. Defendants here ask us to apply McCann to the following facts: the judge prosecuted only one of the defendants; no defendant alleges the judge was biased or aware of the disqualifying facts when he issued the warrants or that there was insufficient probable cause for their issuance; and finally, the defendant prosecuted by the judge withheld the disqualifying facts while appearing before the judge on unrelated matters for "strategic" reasons for over a year. We conclude that McCann is distinguishable; the remedy sought by defendants will not serve the interests of the Code of Judicial

Conduct; and the appropriate remedy should be determined by what is "required to restore public confidence in the integrity and impartiality of the proceedings, to resolve the dispute in particular, and to promote generally the administration of justice." DeNike v. Cupo, 196 N.J. 502, 519 (2008). 

STATE OF NEW JERSEY VS. TWO THOUSAND TWO HUNDRED NINETY-THREE DOLLARS ($2,293) IN UNITED STATES CURRENCY A-4929-11T3

STATE OF NEW JERSEY VS. TWO THOUSAND TWO HUNDRED
          NINETY-THREE DOLLARS ($2,293) IN UNITED STATES
          CURRENCY
          A-4929-11T3

The State sought forfeiture of monies seized during the execution of a search warrant; defendant filed an answer denying that the monies were subject to forfeiture. The defendant was subsequently indicted, and the State obtained a stay of the civil forfeiture proceedings pending resolution of the criminal case. Defendant was found guilty by a jury and sentenced. While still incarcerated, he moved in the Special Civil Part for the return of the monies seized. He requested oral argument on the motion.
The notice of the motion hearing was sent to a post office box at Northern State Prison, the address provided by defendant in his motion papers. However, before the hearing date, the notice was returned to court marked "return to sender, insufficient address, unable to forward." Nevertheless, the matter proceeded on the hearing date with only the prosecutor present.
Without testimony, the judge entered an order denying defendant's motion and ostensibly granting the State a judgment of forfeiture.
We reversed, finding defendant was deprived due process by the Court's failure to provide notice of the hearing. In providing guidance for future proceedings, we commented on the prove of predicate facts necessary before the State may invoke the presumption contained in N.J.S.A. 2C:64-3(j). 

STATE OF NEW JERSEY VS. QUAHEEM JOHNSON A-3363-13T3

STATE OF NEW JERSEY VS. QUAHEEM JOHNSON
          A-3363-13T3

In this case of first impression we held that a trial court improperly terminates a defendant's prosecution, within the meaning of N.J.S.A. 2C:1-9, by accepting a

partial verdict where the jury is deadlocked as to greater, charged offenses, but is unanimous in its finding of guilt as to uncharged, lesser-included offenses.
An indictment charged defendant with various offenses, including murder, felony murder and armed robbery, relating to his committing two separate robberies and killing one of the victims. A jury could not reach a unanimous verdict as to those charges but, as to murder and armed robbery, convicted defendant of uncharged, lesser-included offenses. Despite the jury being deadlocked as to the greater, charged offenses, the trial court accepted the jury's verdict and had it recorded. The State sought thereafter to retry defendant on felony murder, and defendant moved to bar a retrial arguing that double jeopardy principles and the improper termination of his prosecution barred a new trial as to those charges. The trial court agreed with defendant's arguments and granted his motion. We stayed further proceedings and granted the State leave to appeal the trial court's order.
After considering the State's argument in the context of the unusual circumstances of this case, we agreed with the trial court that a retrial on felony murder was barred by the improper termination of defendant's prosecution arising from the taint to the jury's verdict caused by the trial court's (1) acceptance of a partial verdict, (2) its failure to insist on there being a unanimous not guilty verdict before taking the verdict on the uncharged, lesser- included offenses, (3) its failure to review the verdict sheet with the jurors, combined with (4) the apparent confusion caused by the court's initially telling the jury to not inform the court if it was deadlocked. We also again restated our concern about the problems that can be created by accepting partial verdicts before a trial court has conducted the appropriate investigation as to whether a jury's deadlock is intractable. 

STATE OF NEW JERSEY VS. DANIEL A. BORJAS A-6292-11T2

STATE OF NEW JERSEY VS. DANIEL A. BORJAS
          A-6292-11T2

Defendant was found guilty by a jury of three counts of knowingly making false government documents, second- degree offenses proscribed by N.J.S.A. 2C:21-2.1(b), and four counts of knowingly possessing false government documents, fourth-degree offenses proscribed by N.J.S.A. 2C:21-2.1(d). The incriminating items were created or

stored in hard drives on computers at defendant's residence. The items were discovered by law enforcement officers pursuant to a search warrant, although the officers found no printouts of the false items.
We reject defendant's argument that subsections (b) and (d) of N.J.S.A. 2C:21-2.1 are unconstitutionally overbroad because they allegedly infringe too much upon protected forms of expression. In doing so, we do not foreclose a future "as-applied" challenge to the statute by an artist, student, or other person who, unlike the present defendant, makes or stores false images for benign reasons involving constitutionally-protected speech.
Additionally, we reject defendant's argument that the statute is void for vagueness because it lacks an express element requiring the State to prove a defendant's specific intent to use the false items for illicit purposes. We also reject defendant's criticisms of the trial judge's jury instruction defining the term "document" under the statute to encompass items or images stored on a computer. The instruction is consistent with the broader meaning associated with the term "document" in common modern usage.
In an unpublished portion of the opinion, we uphold defendant's seventy-eight-month flat custodial sentence. 

State v. Julie L. Michaels (A-69-12

State v. Julie L. Michaels (A-69-12; 072106)

          Defendant’s confrontation rights were not violated by
          the admission of Dr. Barbieri’s report or his
          testimony regarding the blood tests and his
          conclusions drawn therefrom.  Dr. Barbieri was
          knowledgeable about the testing process, independently
          verified the correctness of the machine-tested
          processes and results, and formed an independent
          conclusion about the results.  Defendant’s opportunity
          to cross-examine Dr. Barbieri satisfied her right to
          confrontation on the forensic evidence presented
          against her.

State v. Reginald Roach (A-129-11

State v. Reginald Roach (A-129-11; 068874)

          Defendant’s confrontation rights were not violated by
          the testimony of the analyst who matched his DNA
          profile to the profile left at the scene by the
          perpetrator.  Defendant had the opportunity to
          confront the analyst who personally reviewed and
          verified the correctness of the two DNA profiles that
          resulted in a highly significant statistical match
          inculpating him as the perpetrator.  In the context of
          testing for the purpose of establishing DNA profiles
          for use in an expert’s comparison of DNA samples, a
          defendant’s federal and state confrontation rights are
          satisfied so long as the testifying witness is
          qualified to perform, and did in fact perform, an

independent review of testing data and processes,
          rather than merely read from or vouch for another
          analyst’s report or conclusions.

State v. Bryden Robert Williams (A-5-12;

State v. Bryden Robert Williams (A-5-12; 070388)

          Defendant’s failure to object to the admission of the
          testimony on confrontation grounds and his decision to
          cross-examine the medical examiner constitute a waiver
          of his right of confrontation.

State v. Fausto Camacho (A-30-13;

 State v. Fausto Camacho (A-30-13; 072525)

          The trial court’s failure to provide a no-adverse-
          inference jury instruction constitutes trial error,
          requiring a harmless-error analysis, and does not
          mandate automatic reversal.  In this case, the error
          was harmless.

State v. Vonte Skinner (A-57/58-12;

State v. Vonte Skinner (A-57/58-12; 071764)

          The Appellate Division correctly reversed defendant’s
          conviction because the violent, profane, and
          disturbing rap lyrics authored by defendant constitute
          highly prejudicial evidence that bore little or no
          probative value as to any motive or intent behind the
          attempted murder offense with which he was charged.

State v. Kevin Gamble (A-53-12;

 State v. Kevin Gamble (A-53-12; 071234)

          Under the totality of the circumstances, which
          provided the officers with a reasonable and
          articulable suspicion that defendant was engaged in
          criminal activity, the investigatory stop and
          protective sweep of the passenger compartment of the
          van were valid.

State v. Yolanda Terry and Teron Savoy (A-71-12; 072775)

 State v. Yolanda Terry and Teron Savoy  (A-71-12;
          072775)

     A confidential marital communication protected under           the marital communications privilege does not lose its           privileged status by virtue of a wiretap under the New           Jersey Wiretapping and Electronic Surveillance Control           Act.  The Court, however, proposes a crime-fraud           exception to the marital communications privilege and,           pursuant to the Evidence Act of 1960, transmits it for           approval by a joint resolution of the Legislature and           for the Governor’s signature.

First Offenders Dismissal Program for Prostitution Charges