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Monday, January 18, 2016

Violation of Drug Court permits court to impose extended sentence STATE of New Jersey, Plaintiff–Respondent, v. Darryl BISHOP,

Violation of Drug Court permits court to impose extended sentence

STATE of New Jersey, Plaintiff–Respondent, v. Darryl BISHOP, Defendant–Appellant.

State of New Jersey, Plaintiff–Respondent, v. Wilberto Torres, Defendant–Appellant.

Decided: February 27, 2013

Before Judges SIMONELLI, KOBLITZ and LISA. John Douard, Assistant Deputy Public Defender, argued the cause for appellants Darryl Bishop and Wilberto Torres (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the briefs). Joie Piderit, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for amicus curiae Attorney General of the State of New Jersey in A–0048–11 and A–1399–11 (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief). Pinilis Halpern, LLP, attorneys for amicus curiae Association of Criminal Defense Lawyers of New Jersey in A–0048–11 and A–1399–11 (Jeffrey S. Mandel, of counsel and on the brief). main body

The opinion of the court was delivered by

These cases1 require determination of the principles applicable to resentencing a defendant whose special probation pursuant to N.J.S.A. 2C:35–14 has been permanently revoked.2 Defendants Darryl Bishop and Wilberto Torres argue that the trial court erred in resentencing them for their underlying convictions of possession with intent to distribute a controlled dangerous substance within one thousand feet of school property, N.J.S.A. 2C:35–7, to extended terms of imprisonment with a parole disqualifier pursuant to N.J.S.A. 2C:43–6f. Relying on cases applicable to resentencing after a revocation of “regular” probation pursuant to N.J.S.A. 2C:45–3b, defendants contend that the sentences they received are impermissible because the prosecutor, by consenting to their initial special probation sentence, irrevocably waived the right to seek such a sentence upon permanent revocation of special probation.

We disagree with defendants. We hold that mandatory periods of parole ineligibility and mandatory extended term provisions that existed at the time of original sentencing survive during the term of special probation and remain applicable at the time of resentencing upon permanent revocation of special probation. Accordingly, we affirm.

Both defendants pled guilty to possession with intent to distribute heroin within one thousand feet of school property, N.J .S.A. 2C:35–7. Both defendants had been previously convicted of drug offenses that rendered them eligible for mandatory extended terms, if requested by the prosecutor, pursuant to N.J.S.A. 2C:43–6f.

Pursuant to plea agreements in both cases, the prosecutor consented to defendants being sentenced to Drug Court, more particularly, to special probation pursuant to N.J.S.A. 2C:35–14a, for which defendants met all eligibility criteria. Each plea agreement recommended a sentence of special probation, but also provided for an “alternate sentence” of seven years imprisonment with a forty-two-month parole disqualifier. This constituted an extended term sentence in each case pursuant to N.J.S.A. 2C:43–6f, calculated under the Revised Attorney General Guidelines For Negotiating Cases Under N.J.S.A. 2C:35–12, July 15, 2004 (Attorney General Guidelines ).

After serving a portion of their special probation terms, each defendant pled guilty to multiple and serious probation violations. Neither defendant disputed that his probation should be permanently revoked, nor does either defendant now contend that revocation was improper.

At their violation of probation (VOP) sentencings, the prosecutor sought imposition of the seven-year sentences with forty-two-month parole disqualifiers as alternatively provided for in the plea agreements. Bishop asked the court to consider imposing a five-year sentence with a three-year parole disqualifier, or to consider waiving the parole disqualifier. Torres requested a seven-year sentence with a thirty-month parole disqualifier. In each case, the court reassessed the applicable aggravating and mitigating factors. The court found in each case the presence of the same three aggravating factors that existed at the time of original sentencing, namely (3) the risk of another offense, (6) defendant's prior record, and (9) the need for deterrence; the court found no mitigating factors present. See N.J.S.A. 2C:44–1a and b. Finding a substantial preponderance of aggravating factors as to each defendant, the court sentenced Bishop to seven years imprisonment with a forty-two-month parole disqualifier, and sentenced Torres to seven years imprisonment with a thirty-six-month parole disqualifier.

Defendants now contend that their VOP sentences constituted an abuse of discretion and violated the sentencing principles laid down in State v. Baylass, 114 N.J. 169, 553 A.2d 326 (1989), State v. Lagares, 127 N.J. 20, 601 A.2d 698 (1992), State v. Vasquez, 129 N.J. 189, 609 A.2d 29 (1992), and State v. Peters, 129 N.J. 210, 609 A.2d 40 (1992). Defendants argue that, in accordance with the principles prescribed in these cases, their VOP sentences should have been no more than four years imprisonment with no parole disqualifier.

In advancing their argument, defendants begin with the proposition that “there is no such thing as an agreed-upon ‘alternative sentence’ in the event of a VOP.” They further argue that by consenting to their entry into special probation, the prosecutor irrevocably waived the right to seek an extended term sentence pursuant to N.J.S.A. 2C:43–6f, should a VOP occur. In defendants' view, the alternative presented to them in their plea agreements at the time of their original pleas gave them the option of choosing either special probation or a state prison sentence not to exceed seven years with a forty-two-month parole disqualifier. They argue that once they made their choice and were sentenced, the other alternative was no longer of any effect and, having chosen special probation, the prison alternative could not be rekindled upon a VOP. Thus, they contend, at their VOP sentencings, the prosecutor lacked the authority to seek an extended term sentence with a parole disqualifier, and the court lacked the authority to impose such a sentence.3

II.

We begin our analysis by distinguishing between regular probation and special probation. Regular probation has long been an authorized disposition under the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1–1 to 2C:104–9. See N.J.S.A. 2C:43–2b(2). Regular probation is a non-state prison sentence (although it can be conditioned upon serving not more than 364 days in a county jail). Ibid.

In general terms, a regular probationary sentence is typically imposed for third or fourth-degree offenses which do not contain a specific provision requiring a state prison sentence. For such offenders with no prior criminal record, there is a presumption against state prison, and for such offenders with a prior record, there is no presumption either for or against state prison. N.J.S .A. 2C:44–1e; State v. Meyer, 192 N.J. 421, 433 n. 5, 930 A.2d 428 (2007). Where there is no presumption either for or against state prison, the court must weigh aggravating and mitigating factors enumerated in N.J.S.A. 2C:44–1a and b in making the “in-out” decision, that is, whether to impose a state prison sentence or a probationary sentence. State v. Clarke, 203 N.J. 166, 176 (2010); Meyer, supra, 192 N.J. at 433 n. 5, 930 A.2d 428.

For crimes of the first or second degree, there is a presumption of imprisonment, N.J.S.A. 2C:44–1d, which is rarely overcome. State v. Soricelli, 156 N.J. 525, 532–34, 722 A.2d 95 (1999). Thus, for such offenders, a regular probationary sentence is almost never appropriate under the Code's general sentencing provisions.

Special probation is another authorized disposition under the Code. It is not contained in N.J.S.A. 2C:43–2b(2), but in N.J.S.A. 2C:35–14. The term “special probation” first appeared in that section when it was amended in 1999. Meyer, supra, 192 N.J. at 434, 930 A.2d 428. As we will explain, that amendment, together with subsequent amendments, set special probation apart from regular probation, rendering each a separate and distinct sentencing disposition authorized by the Code.

Special probation is designed to divert otherwise prison-bound offenders into an intensive and highly specialized form of probation designed to “address in a new and innovative way the problem of drug-dependent offenders caught in a never-ending cycle of involvement in the criminal justice system.” Id. at 434–35, 930 A.2d 428. Thus, the Legislature created special probation as a disposition aimed specifically at prison-bound offenders, who would not be eligible for regular probation.

We recognize, of course, that drug dependent offenders sentenced to regular probation may also be admitted to Drug Court under a separate track than those admitted on the special probation track prescribed by N.J.S.A. 2C:35–14. Ibid. This opinion does not deal with those admitted to Drug Court under the regular probation track; it deals only with offenders sentenced to special probation under N.J.S.A. 2C:35–14, whose probation is subsequently permanently revoked.

In the immediate aftermath of the Supreme Court's 2007 decision in Meyer, the Legislature again amended N.J.S.A. 2C:35–14. Among other things, the amendment gave legislative approval to the Meyer holding, making clear that although Drug Court is available under two tracks (special probation and regular probation), the two are separate and distinct. Indeed, the 2008 amendment added the following to the beginning of N.J.S.A. 2C:35–14a:

a. Any person who is ineligible for probation due to a conviction for a crime which is subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility may be sentenced to a term of special probation in accordance with this section, and may not apply for drug and alcohol treatment pursuant to N.J.S. 2C:45–1 [specifying the conditions of regular probation]. Nothing in this section shall be construed to prohibit a person who is eligible for probation in accordance with N.J.S. 2C:45–1 due to a conviction for an offense which is not subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility from applying for drug or alcohol treatment as a condition of probation pursuant to N.J.S. 2C:45–1.

[L. 2008, c. 15, § 1, eff. Aug. 1, 2008.]

Thus, stated in very broad terms, offenders sentenced to regular probation are not necessarily prison bound, based upon the nature and seriousness of their crimes and the general sentencing provisions of the Code. On the other hand, offenders sentenced to special probation are prison bound because their offenses, deemed more serious in the Code, carry a mandatory or presumptive term of imprisonment. Their eligibility for this form of non-prison sentence is not determined by weighing aggravating and mitigating factors as is the case with regular probation, but by reference to the enumerated statutory requirements listed in N.J.S.A. 2C:35–14. Clarke, supra, 203 N.J. at 175. It is logical that in light of the vastly different criteria governing admission to these separate forms of probation, the consequences of resentencing upon revocation of probation should also differ.

III.

The Code provides as follows for resentencing upon revocation of regular probation:

When the court revokes ․ probation, it may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted.

[N.J.S.A. 2C:45–3b.]

As we previously stated, defendants rely upon the Supreme Court's interpretation of that provision as the basis for their argument.

In Baylass, the Court held that upon resentencing after a VOP, the court must consider the aggravating factors that existed at the time of the original sentence, and weigh and balance them against mitigating factors as affected by probation violations. Baylass, supra, 114 N.J. at 178, 553 A.2d 326. Because the weighing of aggravating and mitigating factors at the time of original sentencing supported a probationary (rather than prison) sentence, the Court further held that it would be a rare case in which the post-VOP balancing of original aggravating factors and surviving mitigating factors would weigh in favor of a term of imprisonment greater than the presumptive (now midrange4 ) sentence or of a period of parole ineligibility. Ibid. The offenses in Baylass were three counts of fourth-degree forgery, N.J.S.A. 2C:21–1a. Id. at 171, 553 A.2d 326. That offense does not provide for any mandatory minimum period of parole ineligibility. Therefore, the Court's analysis pertained to the possibility of a discretionary minimum period of parole ineligibility pursuant to N.J.S.A. 2C:43–6b. Id. at 178, 553 A.2d 326.

Three years after Baylass, the Court considered the constitutionality of N.J.S.A. 2C:43–6f. Lagares, supra, 127 N.J. at 23, 601 A.2d 698. In Lagares, the Court was not dealing with a VOP sentence, but the initial sentence of a defendant convicted of third-degree distribution of a controlled dangerous substance, N.J .S.A. 2C:35–5, who, because of a prior drug conviction, was eligible for extended term sentencing, if requested by the prosecutor, pursuant to N.J.S.A. 2C:43–6f. Id. at 24, 601 A.2d 698. The Court held that section 6f could withstand separation of powers and due process challenges only if interpreted to require the adoption of uniform statewide guidelines to govern the exercise of prosecutorial discretion in choosing whether or not to request imposition of an extended term, which, once requested, is mandatory for the court. Id. at 32–33, 601 A.2d 698. The Court noted that “[t]hose guidelines should reflect the legislative intent to make extended sentencing of repeat drug offenders the norm rather than the exception.” Id. at 32, 601 A.2d 698.

Although Lagares did not involve a VOP sentencing, its holding and rationale, along with the holding and rationale in Baylass, provided much of the underpinning for the Court's decision a few months later in the remaining cases upon which defendants rely, Vasquez and its companion case, Peters.5

In Vasquez, the defendant pled guilty to a school zone offense, namely possession with intent to distribute cocaine within one thousand feet of school property, N.J.S.A. 2C:35–7. Vasquez, supra, 129 N.J. at 192, 609 A.2d 29. Pursuant to a negotiated plea agreement, the prosecutor waived imposition of the mandatory three-year parole disqualifier prescribed for that offense and recommended a probationary sentence, but the plea agreement also provided that if the defendant violated probation, the prosecutor would withdraw the waiver and seek resentencing with the mandatory parole disqualifier. Ibid.

The defendant violated probation, and on resentencing the court concluded it had no discretion to refrain from imposing the statutorily mandated parole disqualifier in light of the plea agreement provision, and sentenced him to four years imprisonment with a three-year parole disqualifier. Id. at 193, 609 A.2d 29. The Supreme Court was therefore confronted with the issue of “whether on resentencing following a violation of probation the court is compelled by the sentencing statute to impose the period of parole ineligibility and whether the prosecutor, having originally waived the parole disqualifier, has the authority at resentencing to demand the imposition of the period of parole ineligibility.” Id. at 192, 609 A.2d 29.

The Court first disposed of the separation of powers challenge to N.J.S.A. 2C:35–12 by applying its rationale and holding in Lagares and reaching the same result. Id. at 195–97, 609 A.2d 29. Thus, the Court held that to render constitutional N.J.S.A. 2C:35–12, authorizing prosecutorial waiver of minimum periods of parole ineligibility, uniform guidelines were needed to regulate the exercise of prosecutorial discretion. Ibid. The Court then turned to the principles that should guide determination of an appropriate VOP sentence when the underlying offense, a school zone offense, provides for a mandatory parole disqualifier.

The Court began by quoting the statutory provision governing resentencing after a VOP, namely that the court “ ‘may impose on the defendant any sentence that might have been imposed originally for the offense for which he [or she] was convicted.’ “ Id. at 197, 609 A.2d 29 (quoting N.J.S.A. 2C:45–3b). Thus the Court applied the same resentencing standard as in Baylass, applicable to all resentencing after revocation of regular probation. Unlike in Baylass, the analysis in Vasquez was complicated by the statutory parole disqualifier prescribed for the underlying offense. Therefore, the Court was required to analyze the interrelationship between N.J.S.A. 2C:35–7 (providing for the mandatory parole disqualifier), and N.J.S.A. 2C:35–12 (authorizing prosecutorial waiver of the parole disqualifier). Id. at 197–200, 609 A.2d 29.

The Court concluded that, because prosecutors are authorized by section 12 to waive the parole disqualifier in section 7, “section 7 sentencing is not ‘mandatory,’ at least in the typical or conventional use of mandatory sentencing.” Id. at 199, 609 A.2d 29. The Court further reasoned that once waived, the parole disqualifier under section 7 is no longer mandatory for purposes of VOP resentencing and that prosecutors retain no sentencing authority on resentencing regarding imposition of a parole disqualifier. Id. at 200, 609 A.2d 29.

Because it was construing a penal statute, the Court felt constrained to construe it strictly in the absence of express and clear statutory language to the contrary. Id. at 200–01, 609 A.2d 29. The Court concluded:

Thus, unless the Legislature has made clear its intent to have the mandatory parole disqualifier apply at violation of probation sentencing, the court is not justified in imputing that intent to the Legislature. We are satisfied that it has not. The mandatory term of section 7 is itself not truly mandatory because it may be waived. Moreover, section 12, which authorizes the waiver of the mandatory term, does so only in the context of the original sentencing. That waiver may occur as part of a plea agreement or a post-conviction sentencing agreement. However, the legislation does not expressly mandate that a parole disqualifier be applied at the resentencing stage or authorize the exercise by the prosecution of any power to waive or request such a parole disqualifier at that stage.

[Id. at 201, 609 A.2d 29.]

The Court thus held that the Baylass framework was applicable to the resentencing process and, in the absence of express statutory authority, the Court was unable to infer a legislative intent to impose an absolute mandatory parole disqualifier on resentencing for a VOP based on a school zone offense. Id. at 201–02, 609 A.2d 29.

However, recognizing the material difference between the penalties prescribed for the underlying offenses in Baylass and in Vasquez, the Court determined that on resentencing after a VOP for a school zone offense the court must follow the Baylass principles, “subject, however, to a discretionary authority to impose a period of parole ineligibility under appropriate circumstances and based on adequate findings.” Id. at 205, 609 A.2d 29. For such cases, in which the underlying offense contained a mandatory, but waiveable, parole disqualifier, the Court summarized the modified Baylass rule as follows:

Hence, the sentencing court, following a violation of probation, cannot return to a sentence more stringent than was appropriate originally except in the rare case. Nonetheless, although we reject the State's position that on resentencing for violation of probation the imposition of a period of parole ineligibility is mandatory in the absence of the prosecutor's waiver, we hold that a period of parole ineligibility may be imposed in conjunction with the imposition of a presumptive custodial term as a matter of judicial discretion.

[Id. at 206, 609 A.2d 29.]

IV.

When the decisions in Baylass, Lagares, Vasquez, and Peters were rendered, between 1989 and 1992, N.J.S.A. 2C:35–14 provided for a very limited rehabilitation program for drug-dependent prison-bound offenders who could, under prescribed circumstances, be placed on “probation,” subject to appropriate and reasonable “terms and conditions as may be required by the court and by law, pursuant to N.J.S.A. 2C:45–1.” L. 1987, c. 106, § 1, operative July 9, 1987. Thus, a defendant qualifying under this section could be admitted to regular probation. As we have previously stated, the concept of special probation was not introduced until the 1999 amendment. Importantly, under the pre–1999 version, N.J.S.A. 2C:35–14d provided that upon revocation of probation the court was empowered to “impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted.” L. 1987, c. 106, § 1, operative July 9, 1987. This is precisely the same language that was contained then, and continues to be contained now, in N.J.S.A. 2C:45–3b, governing a court's sentencing authority for a violation of regular probation.

In the 1999 amendments to N.J.S.A. 2C:35–14, the Legislature, presumably being cognizant of these decisions, enacted a provision that changed the sentencing authority of courts for resentencing upon permanent revocation of special probation. Section d, which contained the identical sentencing provision that existed for regular probation, was deleted in its entirety. L. 1999, c. 376, § 2, eff. Jan. 14, 2000. It was replaced by a new section, N.J.S.A. 2C:35–14f(4), which currently remains in effect and provides, in relevant part:

(4) If the court permanently revokes the person's special probation pursuant to this subsection, the court shall impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent. The court shall conduct a de novo review of any aggravating and mitigating factors present at the time of both original sentencing and resentencing.

[N.J.S.A. 2C:35–14f(4) (emphasis added).]

Our task is to interpret this new section. In doing so, we must ascertain the intent of the Legislature in enacting it. DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). The best indicator of that intent is the statutory language itself, to which courts should ascribe its ordinary meaning and significance. Ibid . In doing so, the words should be read in context with related provisions to give sense to the legislation as a whole. Ibid. If the language is clear and unambiguous, and susceptible to only one interpretation, no further inquiry should be made. Ibid. However, if there is ambiguity in the language that could lead to more than one plausible interpretation, courts may consider extrinsic evidence, including legislative history, committee reports, and contemporaneous construction. Id. at 492–93, 874 A.2d 1039. Courts may also consider extrinsic evidence if a plain reading would lead to an absurd result or if the overall statutory scheme is at odds with the plain language. Id. at 493, 874 A.2d 1039.

Applying these principles, we conclude that this statutory change reflects legislative intent to provide a separate VOP resentencing regime for special probation than that which had previously existed and continues to exist for regular probation. It constitutes a marked departure from the regular probation standard and provides express statutory direction preserving all sentencing provisions available at the original sentencing in the event of revocation of special probation. This new provision comports with the fundamental difference in admission criteria to special probation as opposed to regular probation.

We conclude that the replacement of the former N.J.S.A. 2C:35–14d with the new N.J.S.A. 2C:35–14f(4) was a substantive change, and not a mere shift in verbiage. We base our conclusion on the plain language of the statute. To the extent that any ambiguity might exist, our conclusion is bolstered by several factors.

First, the Legislature left untouched the resentencing provision for regular probation in N.J.S.A. 2C:45–3b. This indicates a legislative intent to leave intact the Baylass principles for resentencing upon revocation of regular probation, but changing the principles applicable to resentencing upon revocation of special probation.

Second, as the Court explained in Baylass, it would only be a rare case in which a non-prison-bound offender admitted to regular probation should, upon revocation of probation, receive more than a mid-range flat sentence. That analysis is based upon the nature and seriousness of the underlying offense and the identification at the original sentencing of aggravating and mitigating factors, in which a preponderance of mitigating factors would have weighed in favor of choosing probation over state prison as the original sentence. Thus, even if, as a result of the VOP, some or all of the mitigating factors were diminished in weight or eliminated, the rebalancing of original aggravating and remaining mitigating factors would not be expected to support a sentence above the mid-range or a sentence with a discretionary parole disqualifier. That analytical framework does not apply to prison-bound offenders sentenced to special probation.

Third, the carrot-and-stick approach is integral to the Drug Court concept. Prison-bound offenders are given an opportunity to be diverted from a state prison sentence if they are willing to avail themselves of the rehabilitative opportunities available in Drug Court in an effort to free themselves from the recurring cycle of drug dependency and criminal activity. The legislative history of the 1999 amendments includes the Report to the Governor by the Attorney General on the Need to Update the Comprehensive Drug Reform Act of 1987, December 9, 1996. That document “call[ed] for new ways to support drug court programs. One way is to provide judges with new legal tools with which to ‘leverage ’ addicts into treatment.” Id. at 18, 553 A.2d 326 (emphasis added). The legislation that followed created special probation, as distinguished from regular probation, and established the new resentencing provision applicable upon revocation of special probation.

This evidences an awareness by the Legislature that strong incentives would be required to keep special probationers on the often difficult path to rehabilitation. It is well accepted that relapse is part of rehabilitation. Indeed, echoing the same theme as in the Attorney General's report, the 1999 legislation includes a similar reference in its provisions dealing with intermediate sanctions on a special probationer. When violations occur, courts are directed to “consider the recommendations of the treatment provider with respect to the likelihood that [thirty days to six months] confinement would serve to motivate the person to make satisfactory progress in treatment once special probation is reinstated.” N.J.S.A. 2C:35–14g (emphasis added).

The Attorney General Guidelines accord with these concerns. They authorize prosecutors to “tender a ‘conditional’ offer under these Guidelines, affording the defendant the option to choose either the Brimage6 offer or to be sentenced to rehabilitative treatment pursuant to N.J.S.A. 2C:35–14.” Attorney General Guidelines, supra, § 3.13, at 22. This is for the purpose of “encouraging prosecutors to empower sentencing courts to use the leverage of the criminal justice system to convince addicted offenders to accept the rigors of clinically appropriate treatment interventions.” Ibid. The Attorney General Guidelines further elaborate that special probation “is designed to address the concern that the prospect of a probationary or county jail sentence may be insufficient to provide the sentencing court with the leverage necessary to convince an addicted defendant to overcome denial and accept the rigors of clinically-appropriate treatment, such as the treatment provided pursuant to N.J.S.A. 2C:35–14 (treatment in lieu of imprisonment).” Id. at § 6.5.4, at 47.

Although the Attorney General Guidelines are silent regarding resentencing upon revocation of special probation, the foregoing provisions assist and support our analysis. The ultimate motivation or leverage, a tool needed to enable Drug Courts to operate effectively, is the threat of the substantial sentence that would have been imposed originally if the defendant were not admitted to Drug Court through special probation.

Fourth, uniformity in sentencing is a fundamental goal of the Code. Brimage, supra, 153 N.J. at 19–22, 706 A.2d 1096. Indeed, the Attorney General Guidelines, often referred to as the “Brimage Guidelines,” were promulgated at the direction of the Supreme Court in Brimage to assure uniformity. Id. at 23, 706 A.2d 1096. Our interpretation of N.J.S.A. 2C:35–14f(4) advances the fundamental goal of sentencing uniformity. Prison-bound offenders who meet the eligibility requirements of N.J.S.A. 2C:35–14 are afforded an opportunity at rehabilitation through Drug Court. However, for those who do not successfully avail themselves of the opportunity, the sentencing consequences should be the same as if the opportunity had not been extended to them in the first place. We do not think the Legislature established a comprehensive system to divert prison-bound offenders in the hopes of their rehabilitation, only to allow those who fail to receive a much more lenient sentence than similarly situated offenders who are not given the opportunity. Such an interpretation would invite manipulation by offenders to get into special probation, knowing that their admission would entitle them to the windfall of a reduced sentence upon revocation.

Fifth, in 2012, the Legislature again amended N.J.S.A. 2C:35–14. Among the changes was the deletion of subsection c, which gave prosecutors the right to object to special probation, which could be overridden only upon a judicial finding of a gross and patent abuse of prosecutorial discretion. L. 2012, c. 23, § 5, eff. Jan. 19, 2013. Thus, in its present form, the consent of the prosecutor is no longer required for admission to special probation. Accordingly, the entire premise of defendants' waiver argument is no longer viable.

We do not deem this most recent amendment as intended to effect any change in the sentencing standard applicable upon revocation of special probation. The overall purpose of the 2012 amendment was to reduce eligibility requirements for admission to special probation, to compel admission for qualified offenders, and to expand the Drug Court program to all counties throughout the state. Indeed, the amendment left section 14f(4) unchanged, making even more clear that section 14 operates as a comprehensive stand-alone disposition scheme that is independent of N.J.S.A. 2C:35–12.

Finally, inclusion of an “alternative offer” or “alternative sentence” is expressly provided for in the Manual for Operation of Adult Drug Courts in New Jersey, July 22, 2002 (Drug Court Manual ), approved by the Judicial Council, and recognized by our Supreme Court as an authoritative source for the operation of the Drug Court program. Meyer, supra, 192 N.J. at 431, 930 A.2d 428. The Drug Court Manual prescribes the practices and procedures to be used in Drug Court. Clarke, supra, 203 N.J. at 174. Of course, the judicial branch cannot, through an approved manual or otherwise, create a sentencing disposition not authorized by the Legislature in the Code. Meyer, supra, 192 N.J. at 435, 930 A.2d 428. We suggest no such thing. However, the Drug Court Manual provides further confirmation of our interpretation of the statutory language authorizing disposition of an offender whose special probation is permanently revoked.

Like the Attorney General Guidelines, the Drug Court Manual contains no specific provisions pertaining to resentencing upon revocation of special probation. However, it contains provisions such as the following that support our decision in this case:

Prison-bound cases are defined as defendants who, but for the drug court program, would be sentenced to a term of imprisonment in a New Jersey state prison. These offenders must meet all other eligibility criteria. The plea agreement in these cases must clearly indicate that the defendant has been given an alternative offer and must set forth the state prison sentence that was being offered as the alternative to the drug court program, e.g. Drug Court participation or three years in New Jersey State Prison.

[Drug Court Manual, supra, at 9.]

If an applicant is found both legally and clinically acceptable for the drug court program, a formal plea bargain should therefore be offered to the applicant defendant which identifies drug court participation as an alternative sentence.

[Id. at 23, 930 A.2d 428.]

The plea agreements in these cases complied with these provisions. Without dispute, both defendants were fully informed and expressed their understanding that, if they violated special probation, their probation could be permanently revoked, in which case they would be subject to a sentence not exceeding the Brimage alternative of seven years imprisonment with a forty-two-month parole disqualifier. This was not an automatic agreed-upon sentence, as defendants contend, and it did not deprive the court of its ultimate sentencing authority. The court had the authority to impose any lawful sentence not to exceed that recommended as an alternative in the plea agreement.

In these cases, the sentencing range was five years with a three-year parole disqualifier at the low end (the lowest available extended term, pursuant to N.J.S.A. 2C:43–6f and N.J.S.A. 2C:43–7a(4)), to seven years with a forty-two-month parole disqualifier at the high end (the Brimage offer). Upon reexamination of aggravating and mitigating factors, and a finding of a substantial preponderance of aggravating factors in each case, the court sentenced Bishop to seven years imprisonment with a forty-two-month parole disqualifier, and Torres to seven years imprisonment with a thirty-six-month parole disqualifier. We are satisfied that the court followed the correct sentencing guidelines and, in a reasonable exercise of discretion, imposed appropriate sentences in both cases within the permissible range.

Affirmed.

FOOTNOTES

1. These appeals were calendared back-to-back, and we now consolidate them for disposition in this opinion.

2. These cases were initially argued on an excessive sentencing calendar pursuant to Rule 2:9–11, after which we issued orders directing full briefing and placement on a plenary calendar. After argument on the plenary calendar, we invited the Attorney General and the Association of Criminal Defense Lawyers of New Jersey to file amicus curiae briefs.

3. At oral argument, defense counsel apparently conceded that a discretionary period of parole ineligibility of up to three years might have been legally authorized, presumably as part of an ordinary term sentence for the school zone offenses, under the provisions of N.J.S.A. 2C:35–7. See Vasquez, supra, 129 N .J. at 206, 609 A.2d 29. Defense counsel nevertheless adhered to his primary position that no minimum period of parole ineligibility was warranted in these cases and that imposition of such a term would have constituted an abuse of discretion. Our disposition of this appeal does not require independent analysis of this issue because the primary focus is on the mandatory extended term pursuant to N.J.S.A. 2C:43–6f, which includes by its terms a minimum period of parole ineligibility of at least three years, thereby subsuming the three year minimum period of parole ineligibility prescribed by N.J.S.A. 2C:35–7.

4. See State v. Natale, 184 N.J. 458, 488, 878 A.2d 724 (2005).

5. We will confine our references to Vasquez because the Court's relevant analysis and holding was the same in both cases.

6. State v. Brimage, 153 N.J. 1, 706 A.2d 1096 (1998).

LISA, J.A.D. (retired and temporarily assigned on recall).

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PCR permits hearing on remand a0705-14 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ASIF TALLO, a/k/a JOILYNN WILLIAMS,

PCR permits hearing on remand a0705-14

STATE OF NEW JERSEY,

Plaintiff-Respondent,

ASIF TALLO, a/k/a JOILYNN

WILLIAMS,

Defendant-Appellant.

_________________________________

November 18, 2015

Argued October 27, 2015 – Decided

Before Judges Fisher and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-05-0296.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0705-14T2 PER CURIAM

Defendant Asif Tallo a/k/a Joilynn Williams, appeals from the Law Division's denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. In 2004, after being previously indicted for allegedly committing an act of A-0705-14T2 2

second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3)(b), defendant pled guilty to the amended charge of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). In his PCR petition, defendant argued that his attorney failed to properly advise him of the deportation consequences of his pleading guilty. The Law Division rejected that argument finding there was "no evidence that counsel affirmatively misinformed" defendant and, for that reason, an evidentiary hearing was not warranted.

On appeal, defendant argues:

POINT I

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF.

A. DEFENDANT HAS PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

B. DEFENDANT HAS RAISED MATERIAL ISSUES OF DISPUTED FACTS THAT REQUIRE AN EVIDENTIARY HEARING TO RESOLVE.

We have considered defendant's arguments in light of our review of the record and applicable legal principles. We reverse and remand for an evidentiary hearing.

The facts underlying defendant's offense are not material to our discussion. Suffice it to say, defendant testified at his plea hearing that while employed as a supervisor at a clinic A-0705-14T2 3

that provided counseling to young adults, he committed an act of sexual contact upon one of the clients who was under age eighteen, but at least sixteen years old.

On the day of his scheduled trial, defendant was offered a plea agreement that substantially reduced his exposure to the original second-degree offense and recommended "probation with community service." Defendant accepted the plea offer and, prior to eliciting the factual basis for his plea, the court questioned defendant to insure he was pleading guilty voluntarily and knowingly. Although the judge also confirmed that defendant answered all of the questions on the plea form with his attorney, understood the questions, answered them truthfully and did so voluntarily, including all of the attendant questions regarding the consequences of pleading to a sex offense, she did not inquire as to whether defendant was a United States citizen and if he specifically understood the deportation consequences addressed by Question 17 on the plea form. That question asked "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?" Defendant responded to that question on the form by circling "N/A," even though he was not a citizen. A-0705-14T2 4

The court accepted defendant's guilty plea and a different judge later sentenced him in accordance with the plea agreement. The court entered a judgment of conviction on June 11, 2004, based on his plea.

In 2013, the United States Immigration Customs Enforcement (ICE) arrested defendant and sought his deportation based upon his conviction in this case. In October 2014, the United States Immigration court ordered defendant to be deported to Jamaica. That order is currently on appeal and defendant remains in ICE's custody.

In his subsequent PCR petition, defendant filed a certification in which he confirmed that he was a Jamaican national living in the United States as a lawful permanent resident.1 He further stated that his plea counsel had "known [his] family for years and was aware of [his] immigration status," and based on his attorney knowing defendant's status, he "accepted [counsel's] representation as signifying that it would be safe for [defendant] to accept [the plea] as a lawful permanent resident." Defendant also confirmed that at the time of his plea he "did not understand that [he] would face a certain deportation based upon [his] status in the country." If

1 Defendant was born in Jamaica in 1979 and came to the United States in 1991. A-0705-14T2 5

he had known, defendant "would not enter the plea that was offered" because his "entire family is in this country and . . . [he has] no family in Jamaica." According to defendant, his attorney did not raise the immigration issues "as a concern, given that [they] both believed that as a resident, there would be no penalties for a criminal offense."

Defendant's plea counsel also filed a certification relative to the PCR petition. In that certification, counsel stated "at the time of defendant's plea, [counsel] was aware of [defendant's] immigration in the country based upon familiarity with [defendant's] family's history of their immigration to the United States." Counsel did not, "[h]owever . . . recall discussing [defendant's] immigration consequences regarding the ultimate sentence on this particular charge."

As noted, in a comprehensive written decision, the PCR judge – who was not the plea or sentencing judge - was not persuaded that an evidentiary hearing was necessary because he believed defendant failed to establish a prima facie claim of ineffective assistance of counsel. The judge entered an order denying the petition and this appeal followed.

In order for a defendant to obtain PCR based upon ineffective assistance of counsel, he or she is obliged to show both the particular manner in which counsel's performance was A-0705-14T2 6

deficient and that the deficiency prejudiced his or her right to a fair trial or the outcome of the plea process. See Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d

203, 209-10 (1985); Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987); State v. Chung, 210 N.J. Super. 427, 434-35 (App. Div. 1986).

In cases brought by a defendant who has entered a guilty plea, the first prong of the Strickland/Fritz test is met where a defendant shows counsel's representation fell short of the prevailing standards expected of criminal defense attorneys. Padilla v. Kentucky, 559 U.S. 356, 367, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). The second prong requires a defendant to establish a reasonable probability that he would not have pled guilty, but for counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012).

When defendant pled guilty in 2004, "a defendant's guilty plea [wa]s not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Id. at 361.2 Because immigration ramifications

2 In 2010, the United States Supreme Court ended all debate on the deportation question. In Padilla, supra, the Supreme Court held attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea.

(continued) A-0705-14T2 7

559 U.S. at 356, 130 S. Ct. at 1486-87, 176 L. Ed. 2d at 299. The high court made it clear the failure to advise a client regarding the deportation consequences of a conviction represents a deficiency of constitutional magnitude. Ibid. Because Padilla, supra, presented a new rule of law, its holding only applied prospectively. Gaitan, supra, 209 N.J. at 371-72.

3 In response to Nuñez-Valdéz, Question 17 was amended in 2009, in an "attempt to raise a defendant's consciousness of the risk of deportation and provide an opportunity for a defendant to

were considered collateral consequences not penal consequences of a plea, there was no affirmative requirement to warn a defendant who was pleading guilty of a negative effect on his or her immigration status.

However, the Court implemented Question 17 as a safeguard "designed to encourage discussion between counsel and client" on the issue of deportation. State v. Garcia, 320 N.J. Super. 332, 337 (App. Div. 1999). The question is designed to ensure notice of deportation as a consequence of a guilty plea. Gaitan, supra, 209 N.J. at 362. In the course of such discussions, "when counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates he would not have pled guilty if he had been provided with accurate information," PCR is warranted. Gaitan, supra, 269 N.J. at 351 (citing State v. Nuñez-Valdéz, 200 N.J. 129, 131, 139 (2009)).3 (continued)

(continued) A-0705-14T2 8

seek counsel specialized in the finer points of immigration law." Gaitan, supra, 209 N.J. at 362-63.

We examine defendant's arguments in light of these authorities. Defendant entered his guilty plea in 2004 before Padilla was decided. Consequently, he may not avail himself of its holding to request PCR, but rather he remains bound by "'precedent existing at the time the defendant's conviction became final.'" Id. at 365 (quoting Teague v. Lane, 489 U.S.

288, 301, 109 S. Ct. 1060, 1070, 103 L. Ed. 2d 334, 349 (1989)).

Applying the controlling Nuñez-Valdéz standard, we agree with the PCR judge that defendant's assertion that he was not advised of the immigration consequences, standing alone, would not warrant an evidentiary hearing. However, in this case we conclude that defendant responding to Question 17 as not applicable, when his attorney admittedly knew defendant was not a citizen, requires at least an inquiry into how and why that response was made. Under the undisputed facts, the reason for the answer could not have anything to do with defendant's known immigration status. Compare Garcia, supra, 320 N.J. Super. at 338. Therefore, it must have been related to other factors, such as whether the immigration authorities would treat the fourth-degree crime as a deportable offense, which could have been based on counsel's belief that there would be no (continued) A-0705-14T2 9

immigration "penalties" for pleading to the offense, as certified to by defendant, and not refuted by plea counsel. If counsel shared that view with defendant, by either telling him it was not a deportable offense or, with that belief, telling defendant he should respond "N/A" to the question, defendant's claim would demonstrate a reasonable likelihood he would succeed in his showing that counsel was negligent in providing legal advice. Nuñez-Valdéz, supra, 200 N.J. at 142-43.

We also conclude that defendant provided sufficient information to warrant further inquiry into whether he would have accepted the plea, despite knowing he would be deported. As defendant certified, he came to this country at age twelve. His entire family is here and he has no ties to Jamaica. Also, defendant has spent a considerable period detained in custody by ICE despite his understanding at the time of his plea that he would not be incarcerated as a result of pleading guilty. See Garcia, supra, 320 N.J. Super. at 341. Although we recognize that the plea on the day of trial represented a substantial decrease in exposure – probation versus up to ten years in prison – we are not convinced, without testimony about defendant's chances of being convicted of the original second-degree charge, that he would have accepted the plea offer if he knew he would be jailed and deported. A-0705-14T2 10

In order to address defendant's PCR request, an evidentiary hearing must be held to "aid the court's analysis of whether the defendant is entitled to post-conviction relief[.]" State v. Marshall, 148 N.J. 89, 158 (holding an evidentiary hearing should be granted on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel to support his petition), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). See also State v. Preciose, 129 N.J. 451, 462 (1992); Garcia, supra, 320 N.J. Super. at 340 (requiring an evidentiary hearing where "the PCR judge found on the basis of the papers that [the defendant] must have lied to his attorney and that, therefore, no misinformation was provided [to the defendant]. But, the form on its face supported [the defendant's] claim--that his lawyer told him that even though he was an alien, he could not be deported and that, therefore, Question 17 was not applicable").

On remand, a hearing will allow the court to analyze whether defendant was affirmatively misinformed about his immigration status and whether he suffered sufficient prejudice to warrant the withdrawal of his plea. See Nuñez-Valdéz, supra,

200 N.J. at 142 (interpreting Strickland's prejudice prong as "'but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial'" (quoting Hill A-0705-14T2 11

v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) (alteration in original))). We conclude defendant had established a prima facie case for relief, and the PCR judge mistakenly exercised his discretion in failing to conduct an evidentiary hearing before dismissing defendant's PCR petition.

Accordingly, we reverse the judgment of the PCR court and remand for an evidentiary hearing on the merits of defendant's ineffective assistance of counsel claim.

Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.

Sunday, January 10, 2016

STATE OF NEW JERSEY VS. MWANZA FITZPATRICK/ STATE OF NEW JERSEY VS. KEEYAN BRISTER A-2477-14T3/ A-2478-14T3

 STATE OF NEW JERSEY VS. MWANZA FITZPATRICK/
          STATE OF NEW JERSEY VS. KEEYAN BRISTER

          A-2477-14T3/ A-2478-14T3

These consolidated appeals present a question of first impression of what is the time within which the State can appeal the denial of a drug offender restraining order sought in connection with a sentence. At sentencing, the State requested drug offender restraining orders in accordance with N.J.S.A. 2C:35-5.7(h). The sentencing court denied those applications and the State appealed. We hold that the governing statute, N.J.S.A. 2C:35-5.7(k), requires such appeals to be filed within ten days of the date of sentencing. Because the State failed to file its notices of appeal in these matters within the ten-day period, we dismiss both appeals for lack of jurisdiction.

STATE OF NEW JERSEY VS. DAVID HUDSON A-2943-14T4

STATE OF NEW JERSEY VS. DAVID HUDSON
          A-2943-14T4

In this interlocutory matter, we review an order disqualifying counsel and his firm from representing defendant,

The State moves for conflict of interest the ten Newark police officers

a former Newark
disqualification
resulted because one of
identified by the State as possible witnesses was counsel's

  police
alleging

officer.
an actual

former client. Additionally, the State alleges counsel had a current conflict based on an appearance of impropriety as he was an attorney for the Newark Fraternal Order of Police lodge, in which the Newark police officers are members.
We reverse the order and remand for further proceedings, concluding the record did not support the finding or existence of an actual conflict of interest. Further, the trial judge erred in grounding his determination of a potential conflict on the appearance of impropriety. We hold the appearance of impropriety standard may not be used as a basis to find a conflict of interest under RPC 1.7 or 1.9. In re Supreme Court Advisory Comm. on Prof'l Ethics Op. No. 697, 188 N.J. 549, 563 n.5, 568 (2006).

STATE OF NEW JERSEY VS. RODNEY J. MILES A-2692-12T1

 STATE OF NEW JERSEY VS. RODNEY J. MILES
          A-2692-12T1

The defendant was arrested during an undercover drug operation. Defendant was charged on a warrant with possession of a CDS with intent to distribute on or near school property. Defendant was also charged on a summons with a disorderly persons offense of possession of marijuana.

After defendant was indicted, he appeared pro se in municipal court via video conference after being incarcerated for a family matter. The disorderly persons drug offense, which was not joined with the indictable offense, was pending. Without the presence or participation of the State, but in accord with the existing "practice," the judge amended the offense to loitering and then took a plea from defendant. Predicated upon his plea, defendant sought to bar the prosecution of the indictable charge.
The court held that the subsequent prosecution and conviction on the indictable charge was barred under the "same evidence" test which is still recognized under state constitutional principles. The court reasoned that the "fundamental fairness" doctrine did not apply, notwithstanding the State's failure to join the disorderly offense with the indictable charges and defendant's reasonable expectation that his plea to the disorderly offense charge resolved all charges which arose out of his arrest.

STATE OF NEW JERSEY VS. WALTER A. TORMASI A-3830-13T4

STATE OF NEW JERSEY VS. WALTER A. TORMASI

          A-3830-13T4

Defendant, convicted of his mother's 1996 murder, filed in 2011 a post-conviction relief petition based on an incomplete affidavit purporting to contain his father's acknowledgement that he, not defendant, was responsible for the murder; this thirty-eight-page document was discovered by defendant's brother shortly after the father's death in 2010. The PCR judge conducted a testimonial hearing limited solely to the admissibility of the document; defendant's siblings testified they had seen the complete document, with a signed and notarized thirty-ninth page years earlier. The PCR judge concluded — without opining on the siblings' credibility — that the document was inadmissible because it was neither handwritten, signed, nor capable of being authenticated. The court reversed, holding that, even though incomplete, the document was admissible pursuant to N.J.R.E. 803(c)(25) and capable of being authenticated pursuant to N.J.R.E. 901. The court remanded for consideration of the witnesses' credibility and the other factors relevant to claims of newly-discovered evidence.

STATE OF NEW JERSEY V. JEAN A. SENE A-2256-13T1

STATE OF NEW JERSEY V. JEAN A. SENE
          A-2256-13T1

The question of first impression presented on this appeal is whether contact between defendant's vehicle and a victim is a necessary element of leaving the scene of an accident in violation of N.J.S.A. 2C:11-5.1. Defendant was driving a taxi when a pedestrian stepped into his lane of traffic. The pedestrian fell into the adjoining lane of traffic and was killed when she was run over by another vehicle. Defendant did not stop his taxi at the scene and left without speaking to anyone. A jury convicted him of leaving the scene of a fatal motor vehicle accident under N.J.S.A. 2C:11-5.1. On appeal, defendant contends that a necessary element to the crime is contact between his vehicle and the victim. We disagree and hold that such contact is not an element of this crime. We also hold that N.J.S.A. 2C:11-5.1 is not unconstitutionally vague. We, therefore, affirm defendant's second-degree criminal conviction.
Because the sentencing judge did not correctly identify the aggravating and mitigating factors, we remand for resentencing. We also vacate a $5000 restitution award and remand for a hearing in accordance with N.J.S.A. 2C:44-2(b), (c).

STATE OF NEW JERSEY IN THE INTEREST OF C.L.H.'S WEAPONS A-0072-14T2

STATE OF NEW JERSEY IN THE INTEREST OF C.L.H.'S
          WEAPONS

A-0072-14T2
The State appeals from a final order of the Family Part denying its motion to have C.L.H. forfeit five illegal assault rifles, among other weapons, and his firearms purchaser identification card seized pursuant to the Prevention of Domestic Violence Act of 1991.
Following the entry of a temporary restraining order against C.L.H.'s wife arising out of a domestic violence complaint brought by her eighty-one-year-old father, the police seized the weapons from the couple's home pursuant to N.J.S.A. 2C:25-28j. While the forfeiture action was pending, C.L.H. advised the prosecutor he was transferring the confiscated weapons to a licensed firearms dealer pursuant to the 2013 gun amnesty law. The Family Part determined that because C.L.H. was not a defendant in the domestic violence case, and the guns were seized solely because of a restraining order against C.L.H.'s wife, not allowing him to take advantage of the gun amnesty law was "not equitable."
The panel reversed, concluding the court erred in determining the gun amnesty law applied because the weapons were in the possession of the prosecutor on the law's effective date. Instead it held that because the five assault firearms were seized pursuant to the Prevention of Domestic Violence Act and cannot be returned to C.L.H. under the Domestic Violence Forfeiture Statute as they are contraband under N.J.S.A. 2C:64- 1a(1), C.L.H. is expressly disqualified from obtaining a handgun purchase permit or firearms purchaser identification card under the Gun Control Law, N.J.S.A. 2C:58-3c(8), and thus from regaining possession of his remaining firearms and his firearms purchaser identification card held by the prosecutor.

Saturday, January 09, 2016

LISA IPPOLITO VS. TOBIA IPPOLITO A-4840-13T1

LISA IPPOLITO VS. TOBIA IPPOLITO

          A-4840-13T1

In this matrimonial action, the family judge instituted a contempt proceeding, pursuant to Rule 1:10-2, against defendant upon the judge's receipt of a letter from plaintiff's counsel claiming that defendant violated an order which prohibited defendant from "threatening or intimidating any expert in this matter." Because the judge presided over the very contempt proceeding he initiated, failed to appoint counsel to prosecute the matter, and shifted the burden of persuasion to defendant, the court vacated the order under review and remanded the contempt proceeding to the assignment judge to designate another judge to preside over the contempt proceeding.

MICHAEL CONLEY, JR. AND KATIE M. MAURER VS. MONA GUERRERO, BRIAN KRAMINITZ, AND MICHELE TANZI

MICHAEL CONLEY, JR. AND KATIE M. MAURER VS. MONA GUERRERO, BRIAN KRAMINITZ, AND MICHELE TANZI A-3796-13T2
We affirm the trial court's determination that a residential seller effectively terminated her sale agreement with plaintiffs during the agreement's three-day attorney review period, mandated by New Jersey State Bar Association v. New Jersey Association of Realtor Boards, 93 N.J. 470 (1983), mod., 94 N.J. 449 (1983). The agreement requires notice of disapproval by certified mail, telegram or personal delivery to the realtors; no delivery method is prescribed for notice to parties. The seller's attorney sent the disapproval letter by facsimile and email to the buyer's attorney and by email to the realtor, a dual agent. It was undisputed that the realtor, the buyer's attorney, and the buyers received actual notice of the disapproval. The realtor did not complain about the method of delivery. We conclude that, even assuming the buyers could enforce the realtor's right to notice by the prescribed delivery methods, substantial compliance sufficed, since the buyer did not dispute actual notice and enforcement of the method-of- delivery requirement would result in a disproportionate forfeiture of the seller's right to disapprove the contract.

State v. Duquene Pierre (A-86-13

State v. Duquene Pierre (A-86-13; 072859)

          By virtue of the combined errors of his trial counsel,
          defendant was denied his constitutional right to the
          effective assistance of counsel under the Sixth
          Amendment to the United States Constitution and
          Article I, Paragraph 10 of the New Jersey
          Constitution, and he is entitled to a new trial.

State v. R.P. (A-108-13;

 State v. R.P. (A-108-13; 073796)

          The Appellate Division erred when it denied the
          State’s request to mold the verdict because defendant
          was given his day in court, all of the elements of
          sexual assault are included in the crime of aggravated
          sexual assault, and defendant was not prejudiced.

State v. Antoine D. Watts (A-21-14

State v. Antoine D. Watts (A-21-14; 074556)

          The police did not act in an objectively unreasonable
           manner in violation of the Federal and State
           Constitutions by conducting an initial pat-down of
           defendant and detaining defendant for a thorough
           search in a more controlled, safe, and secure
           location.

The issue in this appeal is whether the police acted unreasonably, in violation of the Fourth Amendment of the Unites States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, in executing a warrant for the search of drugs on defendant.

Detective Valladares and another detective returned to the apartment with the keys and made a peaceable entry. The search of defendant’s apartment uncovered no drugs or related paraphernalia. In the meantime, defendant was handcuffed for officer safety and transported back to his apartment in an unmarked police vehicle. Upon arriving in front of the apartment, defendant exited the vehicle. As he walked toward a marked patrol car under police escort, defendant shook his leg, and from his pants fell four bundles of heroin. Six minutes had elapsed from the moment of defendant’s detention to the discovery of the drugs.

Defendant moved to suppress the drugs, claiming that the police were forbidden from detaining him to conduct a second search of his person after the pat down on the street. After a hearing, in an oral opinion, the trial court granted defendant’s motion, concluding that after the initial search failed to uncover contraband, the continued detention of defendant in handcuffs in the hope of finding drugs on him violated the Constitution. The court’s position was that the police had one shot to conduct the search correctly. The court held that the contraband later found by police during defendant’s detention violated his constitutional rights and the United States Supreme Court’s decision in Bailey v. United States, __ U.S. __ , 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013).

The Appellate Division granted the State’s motion for leave to appeal and affirmed the trial court in an unpublished opinion. After the initial search did not uncover contraband, the appellate panel -- like the trial court -- discerned “no satisfactory explanation” for the need for a second search. It maintained that once the police exhausted the warrant authorizing the search of defendant’s person outside the liquor store, the search warrant for the residence did not permit a later warrantless search of defendant in accordance with Bailey. According to the panel, none of the Bailey factors justified a warrantless search of defendant: defendant was not armed and thus not a danger to the officers searching the apartment; he was not in a position to hide or destroy evidence in the apartment; and, last, because no contraband was found on defendant’s person or later in his apartment, law enforcement’s interest in preventing flight was not an issue. The panel noted that the “terms of the search warrant” permitted “a search rather than multiple searches.”

The Supreme Court granted the State’s motion for leave to appeal.

HELD: The police did not act in an objectively unreasonable manner in violation of the Federal and State Constitutions by conducting an initial pat-down of defendant and detaining defendant for a thorough search in a more controlled, safe, and secure location.

1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protect against “unreasonable searches and seizures” by government officials. Our constitutional jurisprudence expresses a decided preference that government officials first secure a warrant before conducting a search of a home or a person. A warrant for the search of a person carries with it implicit authority to detain that person for a reasonable period to complete the objective of the search. The period of the detention, however, must directly correspond to the purpose of the search and may not extend beyond that time. Reason suggests that a place where a person is detained pursuant to a search warrant may not always be suitable for conducting an intrusive search. A public street corner may not be the appropriate place to conduct a search for drugs that may be hidden in a person’s clothes or on his body. In such a scenario, neither the Federal nor State Constitution forbids the police from moving the individual to a secure and private setting where the search can be conducted without exposing the person to public degradation and the police to potential dangers. Carrying out an intrusive search on a crowded street corner might be misunderstood by uninformed members of the public, or the person’s friends or family, and spark a combustible incident. Public safety permits the police to take reasonable, commonsense measures to avoid interference with a search. (pp. 10-14)

2. The police made an objectively reasonable decision that compelling defendant to disrobe, partially or completely on a busy Elizabeth street corner where there was pedestrian and vehicular traffic could cause public humiliation to defendant. Such an intrusive search at that location might also have posed potential dangers to the police. The trial court ruled that the police had one of two choices: search defendant where he was detained or return him to the apartment or some other location and search him there. The court did not allow for a more nuanced approach consistent with constitutional jurisprudence and the notion of reasonableness. The Court rejects, as a matter of law, the trial court’s all-or-nothing approach. To be sure, what occurred on the corner of Magnolia Avenue and Third Street constituted a search under both the Fourth Amendment and Article I, Paragraph 7 of the State Constitution. But it was an incidental search preliminary to fulfilling the main objective of the warrant -- a search of defendant for the presence of drugs and related paraphernalia. The limited search outside the liquor store did not trigger a constitutional requirement that the police conduct an intrusive search at the same location. The police did not act unreasonably by delaying completion of the search and returning defendant to the apartment. Only six minutes passed from defendant’s detention until discovery of the drugs. That was not an unreasonable period to hold defendant for the purpose of completing the search of his person. To the extent a search occurred, it was not a second search but the reasonable continuation of a search that had not been completed outside the liquor store. (pp. 14-19)

3. Because defendant was lawfully detained pursuant to a warrant to search his person when the drugs were discovered, the Court need not reach the issue addressed in Bailey, supra. Unlike the present case, in Bailey, the police had a warrant to search only the residence, not the defendant-occupant. Bailey does not apply to a case involving a search warrant for a person. Therefore, the discussions of Bailey by the trial court and Appellate Division were not necessary to decide the suppression motion. (pp. 19-20)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for proceedings consistent with the Court’s opinion.

Saturday, January 02, 2016

Improper for Judge to file contempt proceeding then serve as Judge of case LISA IPPOLITO VS. TOBIA IPPOLITO A-4840-13T1

Improper for Judge to file contempt proceeding then serve as Judge of case

LISA IPPOLITO VS. TOBIA IPPOLITO

A-4840-13T1

Friday, January 01, 2016

PCR permits hearing on remand a0705-14 State v. ASIF TALLO