State v. Dion E. Robinson (A-40-15) (076267)Five officers’ swift and coordinated action eliminated the risk that any of the four occupants would gain immediate access to the weapon

State v. Dion E. Robinson (A-40-15) (076267)Five officers’ swift and coordinated action eliminated the risk that any of the four occupants would gain immediate access to the weapon

Argued January 4, 2017 -- Decided May 1, 2017

Patterson, J., writing for a unanimous Court.

In this appeal as of right, the Court considers whether the protective sweep exception to the warrant requirement applies to a police officer’s search of a vehicle’s passenger compartment in the wake of a traffic stop.

After observing a driving pattern he considered unsafe in an area associated with drug activity, Officer Ceci conducted a motor vehicle stop. The driver was defendant Dion Robinson, the front seat passenger was Catilya Carson, the left-rear-seat passenger was Marcus Sanders, and the right-rear-seat passenger was Terron Henderson.

Officer Ceci asked defendant for his license, registration, and insurance. Defendant misidentified himself, stated that his license was suspended, and provided the registration and insurance. Henderson misidentified himself as defendant. Carson and Sanders accurately identified themselves and presented identification cards but no driver’s licenses. Defendant said that the car was owned by his friend, but that he did not know the friend’s name.

Officer Ceci was advised by the dispatcher that defendant and Henderson each had an outstanding warrant and that defendant was known to carry weapons. Officer Ceci confirmed that information and found that Henderson also had a “caution for weapons.” He called for backup; a sergeant and three officers joined him at the scene.

The officers directed defendant and Henderson out of the car, handcuffed them, and arrested them. A search incident to arrest revealed no weapons on either. Some of the officers were assigned to watch defendant and Henderson, who stood handcuffed on the side of the highway and were not permitted to return to the vehicle.

Next, the officers detained, but did not arrest, Carson and Sanders, on whom the officers found no weapons. Carson and Sanders were then directed to stand on the side of the road, monitored by officers. Officer Ceci did not observe Carson or Sanders make any motion that suggested that either was reaching for a weapon, attempting to hide any object, or resisting the directions of the officers. Carson and Sanders were not allowed access to the vehicle. They were not licensed drivers and would not have been permitted to drive the vehicle home.

Officer Ceci then conducted a sweep of the interior of the vehicle to check for weapons. He searched the front-seat passenger area, where Carson had left her purse. When he touched the bottom of the purse, Officer Ceci felt the outline of a handgun, which he retrieved and brought to his patrol vehicle. He then asked the other officers to place Carson and Sanders in custody, summoned a tow truck, and applied for a search warrant.

Defendant was charged with two weapons offenses, hindering apprehension, and four drug offenses, which were the subject of the outstanding warrant. Defendant moved to suppress the handgun found by Officer Ceci during his search of the car. The trial court denied the motion, finding that the traffic stop was properly based on the officer’s articulable and reasonable suspicion that defendant had committed traffic offenses and that the search constituted a reasonable and lawful protective sweep. Pursuant to a plea agreement, defendant pled guilty to second-degree unlawful possession of a handgun and third-degree possession of a CDS.

Defendant appealed the trial court’s denial of his motion to suppress. The majority of the Appellate Division panel concluded that Officer Ceci’s search of the motor vehicle was not a lawful protective sweep and reversed the trial court’s determination. 441 N.J. Super. 33, 46-47 (App. Div. 2015). The panel rejected the State’s assertion that the community-caretaking exception governs this case and noted that the “plain-feel” doctrine was irrelevant. One member of the panel dissented, finding that the search was justified as both a valid protective sweep and an exercise of police community-caretaking functions. The State appealed as of right.  R. 2:2-1(a)(2).

HELD: Although the circumstances gave rise to a reasonable suspicion that there was a weapon in the vehicle, the five officers’ swift and coordinated action eliminated the risk that any of the four occupants would gain immediate access to the weapon. Accordingly, the protective sweep exception to the warrant requirement does not govern this case. The community-caretaking exception to the warrant requirement is irrelevant. However, the inevitable discovery exception to the exclusionary rule may be pertinent to this case.

1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and set forth the requirements for warrants. Warrantless searches are permissible only if justified by one of the few specifically established and well-delineated exceptions to the warrant requirement. It is the State’s burden to prove that a warrantless search falls within one or more of those exceptions.

2. The protective sweep exception to the warrant requirement derives from Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Supreme Court held that a police officer may initiate an investigatory stop in the presence of “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  Id. at 21.  Terry stops are narrowly drawn to permit a reasonable search for weapons.

3. The United States Supreme Court applied the protective sweep exception to an automobile setting in Michigan v. Long, 463 U.S. 1032, 1049 (1983). The Court adopted that standard in State v. Lund, 119 N.J. 35, 48 (1990), but rejected the State’s claim that the search reviewed in that case was a valid protective sweep. In State v. Gamble, the Court upheld an automobile search as a lawful protective sweep. 218 N.J.412, 431-33 (2014).

4. Long and the Court’s opinions in Lund and Gamble define the standard for a valid protective sweep of an automobile following a traffic stop: the State must present specific and articulable facts that, considered with the rational inferences from those facts, warrant a belief that an individual in the vehicle is dangerous and that he or she may gain immediate control of weapons. The protective sweep exception in the automobile setting does not turn solely on the potential presence of a weapon in a vehicle. Instead, it addresses the imminent danger to police when a driver or passenger will be permitted access to a vehicle that may contain a weapon or may be in a position to evade or overpower the officers at the scene. That standard governs this appeal. (p. 22)

5. In light of Officer Ceci’s observations of defendant’s driving, there were specific and articulable facts giving rise to reasonable suspicion that defendant had committed motor vehicle violations and that the traffic stop was therefore lawful. However, Officer Ceci’s search of the car was not a valid protective sweep. There is no doubt that Officer Ceci’s concerns that defendant and Henderson could be armed were justified, but Officer Ceci addressed the potential danger with prompt and effective action. None of the four occupants was given an opportunity to return to the car or was in a position to gain access to any weapon. The record did not reveal specific and articulable facts that, at the time of Officer Ceci’s search of the vehicle, would reasonably warrant the conclusion that any of the vehicle’s four occupants was potentially capable of gaining immediate control of weapons. The search of the car was not within the protective sweep exception to the warrant requirement.  

6. This case does not fit within the narrow parameters of the community-caretaking doctrine as applied to the search of a motor vehicle. There was no potential threat to any person’s safety warranting application of the doctrine at the time that the search took place. The Court does not reach the “plain-feel” exception.  

7. In light of the officers’ continued control over the vehicle, their reasonable concern that one or more occupants could have been armed, and the uncertain status of the vehicle’s owner, it may have been inevitable that the handgun would have been discovered. Consequently, the inevitable discovery exception to the exclusionary rule is potentially relevant to this case. The Court explains that exception and provides guidance for evaluating its applicability on remand, but offers no view on the resolution of any issues raised on remand.

The judgment of the Appellate Division is MODIFIED and AFFIRMED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion. 

Reasonable articulable suspicion was not present when this investigative detention began. Therefore, the statements and evidence obtained thereafter must be suppressed, State v. Lurdes Rosario

Reasonable articulable suspicion was not present when this investigative detention began. Therefore, the statements and evidence obtained thereafter must be suppressed,

State v. Lurdes Rosario (A-91-15) (077420) Argued February 28, 2017 -- Decided June 6, 2017

LaVecchia, J., writing for the Court.

    In this appeal, the Court addresses whether and at what point defendant’s interaction with the police officer escalated from a field inquiry into an investigative detention. The Court then assesses whether reasonable articulable suspicion supported the detention’s restriction on defendant’s freedom of movement.

    The Colts Neck Police Department received an anonymous tip, on April 27, 2013, that defendant Lurdes Rosario was selling heroin from her home, located in a residential development known as “the Grande,” as well as out of her “older burg[undy] Chevy Lumina.” On May 1, 2013, at about 11:30 p.m., Officer Campan was patrolling in the Grande, and his attention was drawn to a moving silhouette in a parked burgundy Chevy Lumina.

     Campan testified that he pulled up and parked his patrol car seven to ten feet behind defendant’s vehicle and at a perpendicular angle. The cruiser’s positioning blocked in defendant’s car. Campan turned on the patrol car’s rooftop, right alley light aimed at the parked vehicle, but not the siren or emergency lights. The alley light revealed a woman sitting in the driver’s seat of the Lumina. Campan testified that the woman, later identified as defendant, looked back at him and then leaned toward the passenger’s seat and was “scuffling around” with something there. He exited his car and approached her vehicle, going directly to the driver’s-side door. Finding the driver’s window half-open, he addressed defendant by asking for “identification and driver’s license.” After she produced them, he recognized her as the subject of the anonymous tip. Campan testified that he also recalled, at that moment, that he had arrested defendant on drug-related charges approximately six months earlier.

     Campan asked defendant what she was doing, and she replied that she was smoking a cigarette. Campan testified that he did not observe a cigarette or cigarette butt. Campan asked her why she began to scuffle around the passenger-seat area when he pulled his car up behind hers. Defendant replied that she had been applying makeup and was putting it away in her purse. When Campan asked how she could apply makeup in the dark, she did not reply. Campan then asked defendant whether there was “anything he should know about” in the vehicle. According to Campan, defendant responded by stating something along the lines of “yes . . . it’s the same thing you arrested me for before in the past.” Then, according to Campan, defendant, unprompted, reached over to the passenger seat and produced an eyeglass case. Defendant opened the eyeglass case and Capman observed a white powdery substance that he identified as drugs. Campan ordered defendant out of the vehicle and placed her under arrest.

         Defendant was charged with third-degree possession of a controlled dangerous substance. The motion court denied defendant’s motion to suppress, concluding that the encounter did not escalate into an investigatory stop until Campan asked defendant whether she had anything in the car he should know about. By that point, the court found, the brief detention was supported by the officer’s reasonable and articulable suspicion due to defendant’s implausible responses to the officer’s questions and his prior knowledge of her criminal activity. The court also rejected defendant’s Miranda argument, determining that defendant voluntarily relinquished the drugs, volunteered statements to the officer, and was not in custody prior to her arrest. Defendant pled guilty. The Appellate Division affirmed, and the Court granted defendant’s petition for certification, 227 N.J. 22 (2016).

       HELD: Defendant was faced with an investigative detention once the officer blocked in her vehicle, directed the patrol car’s alley light to shine into her car, and then approached her driver’s-side window to address her. Under the totality of the circumstances, a reasonable person would feel the constraints on her freedom of movement from having become the focus of law enforcement attention. Accordingly, an investigative detention had begun. Reasonable articulable suspicion did not ripen prior to the officer’s subsequent exchanges with defendant.

1. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Warrantless searches and seizures presumptively violate those protections, but not all police-citizen encounters constitute searches or seizures for purposes of the warrant requirement.   

2. Three categories of encounters with police have been identified by the courts: (1) field inquiry; (2) investigative detention; and (3) arrest. The test of a field inquiry is whether a defendant, under all of the attendant circumstances, reasonably believed he could walk away without answering any of the officer’s questions. In contrast to a field inquiry, an investigative detention, also called a Terry stop or an investigatory stop, occurs during a police encounter when an objectively reasonable person would feel that his or her right to move has been restricted. Because an investigative detention is a temporary seizure that restricts a person’s movement, it must be based on an officer’s reasonable and particularized suspicion that an individual has just engaged in, or was about to engage in, criminal activity. An arrest requires probable cause and generally is supported through an arrest warrant or by demonstration of grounds that would have justified one.   

3. The key issue in this case lies in the distinction between a field inquiry and an investigative detention. The difference between a field inquiry and an investigative detention always comes down to whether an objectively reasonable person would have felt free to leave or terminate the encounter with police. The encounter is measured from a defendant’s perspective.  

4. A person sitting in a lawfully parked car outside her home who suddenly finds herself blocked in by a patrol car that shines a flood light into the vehicle, only to have the officer exit his marked car and approach the driver’s side of the vehicle, would not reasonably feel free to leave. Here, the officer immediately asked for defendant’s identification. Although not determinative, that fact only reinforces that this was an investigative detention. It defies typical human experience to believe that one who is ordered to produce identification in such circumstances would feel free to leave. That conduct is not a garden-variety, non-intrusive, conversational interaction between an officer and an individual.   

5. Because it was an investigative detention from the point that Campan took those directed actions toward defendant, the Court must consider whether, based on a totality of the circumstances, the encounter was “justified at its inception” by a reasonable and articulable suspicion of criminal activity. An anonymous tip, standing alone, inherently lacks the reliability necessary to support reasonable suspicion. Mere furtive gestures of an occupant of an automobile do not give rise to an articulable suspicion suggesting criminal activity. The suspicious behavior identified by the State in defendant’s later responses to Campan’s questioning occurred after the investigative detention had begun. Neither those responses, nor her blurted-out incriminatory statements, nor the surrendered contraband can be used, post hoc, to establish the reasonable and articulable suspicion required at the outset of the investigative detention that here began earlier in time.   

6. Reasonable articulable suspicion was not present when this investigative detention began. Therefore, the statements and evidence obtained thereafter must be suppressed, and it is unnecessary to address the Miranda arguments advanced by the parties.   

The judgment of the Appellate Division is REVERSED.

JUSTICE SOLOMON, DISSENTING, agrees with the majority that the encounter did not implicate Miranda, but views New Jersey jurisprudence to mandate a different holding as to when the encounter became an investigative detention and concludes that the interaction evolved from a field inquiry into an investigative detention when Campan asked whether there was anything in the vehicle he should know about. In Justice Solomon’s view, the detention was lawful and the trial court properly denied defendant’s motion to suppress. The majority’s holding unreasonably and unnecessarily limits an officer’s ability to explore a suspicious scenario and ensure that the community and officers are safe, and no crime is being committed, according to Justice Solomon.

CHIEF JUSTICE RABNER and JUSTICES ALBIN and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE SOLOMON filed a separate, dissenting opinion, in which JUSTICES PATTERSON and FERNANDEZ-VINA join.

T.M.S. VS. W.C.P. A-4900-15T2

T.M.S. VS. W.C.P. 

A-4900-15T2 

In the court's review of a reinstated final restraining order entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 - 35, we conclude the court may not sua sponte reinstate a final restraining order absent a Rule 4:50-1 application by plaintiff. Due process requires the party seeking to reinstate a final restraining order file a motion so defendant may have an opportunity to adequately defend the re-imposition of a final restraining order. 

In this case, defendant was deprived of due process because the trial court, after vacating the final restraining order pursuant to N.J.S.A. 2C:25-29(d) and Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), sua sponte reinstated the final restraining order based on plaintiff's claim she was not adequately served with defendant's Carfagno application. When the dispute arose regarding whether plaintiff had been served with defendant's Carfagno application, plaintiff should have asserted her claims via a Rule 4:50-1 motion in the domestic violence proceeding rather than have the final restraining order sua sponte and summarily reinstated in a separate weapons forfeiture hearing. 

State v. Dasean Harper (A-74-1

State v. Dasean Harper (A-74-15; 077427) 

The amnesty law did not afford defendants blanket immunity for the entire amnesty period. Reading the law in that way would lead to absurd results that the Legislature did not intend. Instead, the law created a period of no more than six months during which people could dispose of weapons they illegally possessed without being prosecuted. The provision affords a defense to those who attempted to comply with its terms. As with other affirmative defenses, a defendant must raise the defense at trial or it is waived. 

State v. Lurdes Rosario (A-91-15

State v. Lurdes Rosario (A-91-15; 077420) 

Defendant was faced with an investigative detention once the officer blocked in her vehicle, directed the patrol car’s alley light to shine into her car, and then approached her driver’s-side window to address her. Under the totality of the circumstances, a reasonable person would feel the constraints on her freedom of movement from having become the focus of law enforcement attention. Accordingly, an investigative detention had begun. Reasonable articulable suspicion did not ripen prior to the officer’s subsequent exchanges with defendant. 

In the Matter of the Enforcement of New Jersey False Claims Act Subpoenas (A-5-16;

In the Matter of the Enforcement of New Jersey False 

Claims Act Subpoenas (A-5-16; 077506) 

The Court concurs with the Appellate Division panel’s conclusion that the language of the NJFCA does not authorize the Attorney General to invoke his or her administrative subpoena power in a given matter after the right to intervene in the qui tam action has expired. After the Attorney General declines to intervene in a qui tam action pursuant to N.J.S.A. 2A:32C-5(g) and leaves that action in the relator’s control, the Attorney General loses the authority conferred by N.J.S.A. 2A:32C-14(a) to issue administrative subpoenas. 

State v. Crisoforo Montalvo (A-76-15

 State v. Crisoforo Montalvo (A-76-15; 077331) 

The right to possess a weapon in one’s own home for self-defense would be of little effect if one were required to keep the weapon out-of-hand, picking it up only “spontaneously.” Defendant had a constitutional right to possess the machete in his home for his own defense and that of his pregnant wife. Because the trial court’s instructions did not convey this principle, the instructions were erroneous. Further, because the erroneous instructions were capable of producing an unjust result in this matter, they constitute plain error. 

STATE OF NEW JERSEY VS. JOHN C. VAN NESS A-2728-14T1

 STATE OF NEW JERSEY VS. JOHN C. VAN NESS 

A-2728-14T1 

Defendant was convicted of third degree theft by deception, N.J.S.A. 2C:20-4, and fourth degree bad checks, N.J.S.A. 2C:21-5. The Criminal Division Manger twice rejected his application for representation by the Public Defender. The trial judge accepted this rejection as final. Under In re Custodian of Records, Criminal Div. Manager, 214 N.J. 147, 152 (2013), no rejection is final until the Assignment Judge or the Assignment Judge's designee reviews it. This court holds that when the Criminal Division Manager denies a defendant's application for representation by the Public Defender, the trial judge should assign temporary counsel, as Rule 3:4-2(b) now provides, and inform defendant of the right to have the application reviewed by the Assignment Judgment or designee. N.J.S.A. 2A:158A-15.1. 

The trial judge also misapplied State v. King, 210 N.J. 2 (2012), when he relied on the following as evidence of defendant's knowing and voluntary waiver of his Constitutional right to counsel: (1) the Criminal Division Manager's denial of defendant's application for representation by the Public Defender; and (2) defendant's failure to obtain private counsel. 

In the Matter of Mark G. Legato, Regan C. Kenyon, Jr., Alexander D. Walter, Attorneys at Law (D-99/100/101-15; 077464

In the Matter of Mark G. Legato, Regan C. Kenyon, Jr., 

Alexander D. Walter, Attorneys at Law 

(D-99/100/101-15; 077464,077465, 077467) 

For respondents Legato and Kenyon, the Court imposes indeterminate suspensions from the practice of law, pursuant to Rule 1:20-15A(a)(2). The Court disbars respondent Walter, pursuant to Rule 1:20-15A(a)(1). 

State v. Fernando Carrero, Jr. (A-13-16;

 State v. Fernando Carrero, Jr. (A-13-16; 078071) 

The trial testimony presents a rational basis on which the jury could acquit defendant of murder but convict him of passion/provocation manslaughter. Although the passion/provocation charge is inconsistent with defendant’s theories of self-defense and accidental shooting, when the evidence supports such a charge, a defendant may be entitled to the requested instruction regardless of whether the charge is consistent with the defense. 

STATE OF NEW JERSEY VS. DONNELL W. ANCRUM A-0932-16T2

STATE OF NEW JERSEY VS. DONNELL W. ANCRUM
          A-0932-16T2

The court granted the State's leave to appeal from an illegal sentence. Defendant was charged with second-degree robbery, second-degree burglary, second-degree aggravated assault (serious bodily injury) and third-degree aggravated assault (significant bodily injury). After indicating the assault charges would merge into the robbery under the facts of the case and the effect of the mergers would be defendant's eligibility for special probation, N.J.S.A. 2C:35-14 (the Statute), the judge accepted defendant's guilty pleas to all four counts of the indictment. At sentencing, over the State's continued objection, the judge sentenced defendant to special probation, conditioned on his entry into, and completion of, Drug Court.
The court reversed, concluding that although the 2012 amendment to the Statute made defendants convicted of second- degree robbery and burglary eligible for special probation, the Legislature intended to continue to bar a defendant convicted of

aggravated assault from receiving such a sentence. Similar to those cases in which the Legislature clearly intended certain mandatory sentences survive merger, a conviction for one of the Statute's disqualifying offenses survives merger and bars defendant's sentence to special probation. 

STATE OF NEW JERSEY VS. EDWARD HOLLAND A-0315-15T4

STATE OF NEW JERSEY VS. EDWARD HOLLAND
          A-0315-15T4

The court examines defendant's challenge to denial of post- conviction relief because the trial judge had been his attorney in more than one matter seventeen years earlier. Although the trial record contained no mention of the judge's prior representation and does not definitively show the trial judge

actually remembered defendant was his former client, testimony before the PCR court confirms the State and defense counsel were informed the judge had served as defendant's private counsel. The court rejects the PCR judge's conclusion to deny PCR suggesting counsel's decision not to seek recusal represents a "valid trial strategy," which cannot be second-guessed.
Reviewing the newly revised Code of Judicial Conduct, specifically Canon 3.17, which mandates disqualification for a period of seven years following the conclusion of that representation and recognizes "disqualification for a period of time in excess of seven years from the conclusion of the representation may be required in certain circumstances." The court reasoned the necessity of preserving the integrity of impartiality and avoiding all appearances of impropriety must be paramount. The court concluded prejudice envelops the entire process by casting doubt and leaving the lingering question of whether a trial judge's familiarity favored a defendant, or conversely, caused a trial judge to overcompensate so as not to reflect an appearance of bias. The court held when an instance arises where a judge previously represented a criminal defendant, the prior representation and relationship shall be clearly stated on the record, and the judge then be disqualified from proceeding in the matter. 

STATE OF NEW JERSEY VS. MICHAEL D. MILLER A-0459-15T4

STATE OF NEW JERSEY VS. MICHAEL D. MILLER
          A-0459-15T4

Following a bench trial, defendant was convicted of second- degree child endangerment for distributing child pornography, N.J.S.A. 2C:24-4b(5)(a), and fourth-degree child endangerment by possessing child pornography, N.J.S.A. 2C:24-4b(5)(b). In affirming defendant's conviction, we hold that the trial court did not err in allowing a detective, who was not presented as an expert witness, to testify as a fact witness regarding his forensic examination of defendant's computer and defendant's use of peer-to-peer file sharing programs. In any event, any error in the admission of the challenged testimony was harmless as the detective possessed sufficient education, training, and experience to qualify as an expert in the field of computer forensics, and defendant was not surprised or prejudiced by the detective's testimony.
We further hold that, in applying aggravating factor one, N.J.S.A. 2C:44-1(a)(1), the trial court engaged in impermissible double-counting. We also conclude that, under the specific facts presented, defendant's convictions for fourth-degree

possession of child pornography and second-degree distribution of child pornography merge. Accordingly, we remand for the court to resentence defendant without consideration of aggravating factor one, and for merger of the two offenses. 

State v. Rodney J. Miles a/k/a Jamal D. Allen (A-72-15;

State v. Rodney J. Miles a/k/a Jamal D. Allen
          (A-72-15; 077035)

          New Jersey now joins the majority of jurisdictions in
          returning to the Blockburger same-elements test as the
          sole test for determining what constitutes the “same
          offense” for purposes of double jeopardy.  In the
          interest of justice, the Court applied both the same-
          elements test and the now-replaced same-evidence test in
          this case; going forward, for offenses committed after
          the issuance of this opinion, the same-elements test
          will serve as the singular framework for determining
          whether two charges are the same offense for purposes of
          double-jeopardy analysis.

State v. Habeeb Robinson (A-40-16;

State v. Habeeb Robinson (A-40-16; 078900)

          Both the trial court and the Appellate Division directed
          the State to disclose the statements of two
          eyewitnesses, photos used in the identification process,
          any incident report of the crime prepared by the police,
          and a surveillance video.  Rule 3:4-2(c)(1)(B) required
          disclosure of the reports and the photos but not the
          video.  The Court also clarifies and reframes the Rule
          to help ensure that it strikes the proper balance
          between two important concerns:  a defendant’s liberty
          interest and the State’s ability to seek to detain high-
          risk defendants before trial.

J.B./L.A./B.M./W.M./R.L. v. New Jersey State Parole Board (A-81/82

J.B./L.A./B.M./W.M./R.L. v. New Jersey State Parole
          Board (A-81/82/83-15; 077235)

           The Court affirms but modifies the Appellate Division’s
           opinion.  The Court upholds the Parole Board’s use of
           polygraph testing with the same limitations as the
           Appellate Division, but adds that the Parole Board’s
           regulations must be further supplemented to buttress the parolees’ Fifth Amendment right against self-
incrimination. 

State v. Amir Randolph (A-70-15

State v. Amir Randolph (A-70-15; 076506)

          Defendant had automatic standing to challenge the search
          of the apartment because he was charged with possessory
          drug offenses and because the State failed to show that
          the apartment was abandoned or that defendant was a
          trespasser.  Failing to issue the “mere presence” charge
          was harmless error.

State v. Brian Tier (A-73-15;

 State v. Brian Tier (A-73-15; 077328)

          A plain reading of Rule 3:13-3(b)(2)(C) requires
          production of witness statements only if those
          statements have already been reduced to writing.
          Nothing in the rules precludes a trial court from
          ordering a defendant to designate witnesses as either
          character or fact witnesses, however.  The Court
          encourages practitioners to participate in cooperative
          discovery in order to ease the burden on all parties
          involved.

State v. Dion E. Robinson (A-40-15; 076267)

State v. Dion E. Robinson (A-40-15; 076267)

          Although the circumstances gave rise to a reasonable
          suspicion that there was a weapon in the vehicle, the
          five officers’ swift and coordinated action eliminated
          the risk that any of the four occupants would gain immediate access to the weapon.  Accordingly, the

          protective sweep exception to the warrant requirement
          does not govern this case.  The community-caretaking
          exception to the warrant requirement is irrelevant.
          However, the inevitable discovery exception to the
          exclusionary rule may be pertinent to this case.

STATE OF NEW JERSEY VS. DONNELL W. ANCRUM A-0932-16T2

STATE OF NEW JERSEY VS. DONNELL W. ANCRUM
          A-0932-16T2

The court granted the State's leave to appeal from an illegal sentence. Defendant was charged with second-degree robbery, second-degree burglary, second-degree aggravated assault (serious bodily injury) and third-degree aggravated assault (significant bodily injury). After indicating the assault charges would merge into the robbery under the facts of the case and the effect of the mergers would be defendant's eligibility for special probation, N.J.S.A. 2C:35-14 (the Statute), the judge accepted defendant's guilty pleas to all four counts of the indictment. At sentencing, over the State's continued objection, the judge sentenced defendant to special probation, conditioned on his entry into, and completion of, Drug Court.
The court reversed, concluding that although the 2012 amendment to the Statute made defendants convicted of second- degree robbery and burglary eligible for special probation, the Legislature intended to continue to bar a defendant convicted of aggravated assault from receiving such a sentence. Similar to those cases in which the Legislature clearly intended certain mandatory sentences survive merger, a conviction for one of the Statute's disqualifying offenses survives merger and bars defendant's sentence to special probation 

Probate and duty of executor

Duties/ Executor to Do

-Notice of Probate to Beneficiaries (Attorney will handle)
If charity, notice to Atty General

File notice of Probate with Surrogate (Attorney will handle)

Apply to Federal Tax ID if there will be several beneficiaries

Set up Estate Account at bank (pay all bills from estate account)

Pay Bills  
List real estate for sale and have attorney prepare, Deed, Affidavit of title and other document

File first Federal and State Income Tax Return [CPA- ex Marc Kane]

Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney will handle)

File waivers within 8 months upon receipt (Attorney will handle)

Prepare Informal Accounting 

Prepare Release and Refunding Bond (Attorney will handle)




Obtain Child Support Judgment clearance (Attorney will handle)

Let's review the major duties involved, which we've set out below.

In General. The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

39:4-97 Careless driving

39:4-97 Careless driving
    39:4-104 Fine or imprisonment not
exceeding 15 days, or both
$50 $200 plus court costs
NJ MVC Points 39:4-97 Careless driving 2
and 2 Car insurance points
Plus Judge Can Suspend DL for Willful Traffic Offense.
State v. Moran  202 NJ 311 (2010)
 The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law.  To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges

Careless driving Careless driving 39:4-97 requires the State to provide the vehicle was operated by the defendant carelessly or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property
  KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

DWS- Driving While Suspended

NJSA 39:3-40 Driving While Suspended in New Jersey DEFENSES Call Kenneth Vercammen for representation 732-572-0500
More info at www.njlaws.com/driving_on_a_suspended_license.htm Thousands of motorists in New Jersey are stopped for routine traffic violations, then are surprised to be informed their license is suspended. Where the minimum costs would be $1,261 in fines, surcharge and costs, motorists need an attorney with knowledge and skill in handling Driving While Suspended (DWS) matters. Over the past decade Municipal Court practice has diversified requiring the need for crafted trial counsel to provide adequate representation for clients concerning both disorderly persons and motor vehicle offenses. Although this may seem like a hopeless situation at first, the reality is that it offers an attorney the opportunity to be creative in finding possible ways to avoid a prolonged license suspension and even the possible incarceration of the client. The violation of DWS is set forth at NJSA 39:3-40. This section states, "no person to whom a drivers license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal suspension, revocation or prohibition." The statute also prohibits the operation of a motor vehicle whose registration has been revoked.
PENALTIES Conviction under this statute brings the following penalties: Upon conviction of the first offense of a fine of $500.00, the defendant will also be surcharged a mandatory $250.00 per year for 3 years in every DWS by the MVC (formerly DMV); Upon conviction for the second offense a fine of $750.00 and imprisonment in the county jail for 1 - 5 days; Upon conviction for the third offense, a fine of $1000.00 and imprisonment in the county jail for 10 days. Additionally, the statute states, that upon the conviction the court shall impose or extend a period of suspension not to exceed 6 months. If DWS and involved in an accident resulting in personal injury to another person, the court shall impose a period of imprisonment for not less than 45 days.
If an individual violates this section while under suspension under 39:4-50 (DWI), they shall be fined $500.00 extra and have their license suspended for an additional period not less than one year nor more than two years and mandatory county jail for 10 - 90 days. If suspended for Failure to Pay a Surcharge, there is an extra $3000.00 fine.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

STATE OF NEW JERSEY VS. EDWARD HOLLAND A-0315-15T4

 STATE OF NEW JERSEY VS. EDWARD HOLLAND 

A-0315-15T4 

The court examines defendant's challenge to denial of post-conviction relief because the trial judge had been his attorney in more than one matter seventeen years earlier. Although the trial record contained no mention of the judge's prior representation and does not definitively show the trial judge actually remembered defendant was his former client, testimony before the PCR court confirms the State and defense counsel were informed the judge had served as defendant's private counsel. The court rejects the PCR judge's conclusion to deny PCR suggesting counsel's decision not to seek recusal represents a "valid trial strategy," which cannot be second-guessed. 

Reviewing the newly revised Code of Judicial Conduct, specifically Canon 3.17, which mandates disqualification for a period of seven years following the conclusion of that representation and recognizes "disqualification for a period of time in excess of seven years from the conclusion of the representation may be required in certain circumstances." The court reasoned the necessity of preserving the integrity of impartiality and avoiding all appearances of impropriety must be paramount. The court concluded prejudice envelops the entire process by casting doubt and leaving the lingering question of whether a trial judge's familiarity favored a defendant, or conversely, caused a trial judge to overcompensate so as not to reflect an appearance of bias. The court held when an instance arises where a judge previously represented a criminal defendant, the prior representation and relationship shall be clearly stated on the record, and the judge then be disqualified from proceeding in the matter. 

State v. Shaquille A. Nance; State v. Taja L. Willis Bolton; State v. Alvin D. Williams (A-47/48

 State v. Shaquille A. Nance; State v. Taja L. Willis 

Bolton; State v. Alvin D. Williams 

(A-47/48/49-15; 076626) 

Section 6.2 was misapplied in defendants’ sentencing proceedings and therefore defendants should be resentenced. The assignment judge, not the sentencing judge, has the authority to decide whether a defendant will be sentenced to a term of probation or a term of incarceration with a one-year period of parole ineligibility. If the defendant has been convicted of a first-degree or second-degree Graves Act offense, the assignment judge (or designee) must consider the presumption of incarceration prescribed by N.J.S.A. 2C:44-1(d) when he or she chooses between the probationary and one-year mandatory minimum sentences envisioned by section 6.2. 

State v. Kassey Benjamin (A-43-15;

 State v. Kassey Benjamin (A-43-15; 076612) 

Defendants are not entitled to discovery of the prosecution’s files for cases in which Graves Act waivers have been granted to other defendants. 

Expungement NJ

New Expungement Law permits petitions for Expungement of arrests in shorter time periods.
      This is an excellent law to help non-violent offenders. Don’t be denied a job, credit or barred from coaching based on an old criminal charge.
This new law establishes new expungement procedures for records and information pertaining to crimes and offenses, including procedures for persons who are, or previously have been, successfully discharged from the State’s special probation drug court program.  It also provides shorter waiting periods before certain records and information become expungeable.
You can now get expungements for both the crime and the disorderly persons convictions.
The new law took effect April 18, 2016.
The time period for expunging a Municipal Court criminal charge may be reduced to 3 years if you can show exception circumstances. Otherwise it stays 5 years.
      Regarding a person with a criminal conviction, that person would be permitted to make an application with an expungement petition to the Superior Court in the county in which the criminal conviction was adjudged.  The application could include additional, separate petitions seeking to expunge no more than two other convictions for disorderly persons or petty disorderly persons offenses.  The application could only be filed after the expiration of five years from the date of the person’s most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, for the crime or for any disorderly persons or petty disorderly persons offense, whichever is later (the waiting period under current law for a criminal conviction expungement is ordinarily 10 years).  Alternatively, the court could grant an expungement on the application if less than five years has expired from the payment of any fine but the five-year waiting period is otherwise satisfied, and the court finds that the person substantially complied with any payment plan for that fine or could not do so due to compelling circumstances.KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

STATE OF NEW JERSEY VS. MARCUS PERKINS A-4065-14T3

 STATE OF NEW JERSEY VS. MARCUS PERKINS 

A-4065-14T3 

The Post-Conviction Relief (PCR) Judge determined that defendant's requested appeal was not filed, but declined to accord relief. Following State v. Jones, 446 N.J. Super. 28, 34-35 (App. Div.), certif. denied, ___ N.J. ___ (2016), the court reversed, holding that a PCR judge has the authority to provide a forty-five-day period to file an appeal where ineffective assistance of counsel caused the failure to file a requested appeal. 

STATE OF NEW JERSEY VS. JAMES DENMAN A-5329-14T1

STATE OF NEW JERSEY VS. JAMES DENMAN 

A-5329-14T1 

In this case, we conclude the prosecutor and trial judge erroneously applied the presumption of PTI ineligibility to defendant's pending charge of third-degree attempted misapplication of funds from the Scotch Plains Police Athletic League (PAL), N.J.S.A. 2C:21-15 and 2C:5-1. Defendant, a Scotch Plains police officer, also served as the PAL treasurer. Faced with a financial crisis, he improperly borrowed $18,000 from PAL, but repaid the loan with interest four months later. The following month, the prosecutor learned of the loan and charged defendant. The prosecutor rejected defendant's PTI application, concluding defendant's unauthorized use of PAL's funds constituted a "breach of the public trust," contrary to PTI Guideline 3(i), because "defendant, a police officer, was Treasurer" of PAL, "an organization with a goal of uniting the local police and the local community through youth sports programs." Defendant appealed his PTI denial to the Law 

Division, which also concluded defendant committed a breach of the public trust. We reverse, concluding the record does not show a breach of public trust, and remand for the prosecutor to consider defendant's PTI application ab initio.