State v. Mongillo Court DWI affirmed, finding ample evidence in the record to support defendant's conviction, including the arresting officer's testimony and the MVR footage

State v. Mongillo   Court DWI affirmed, finding ample evidence in the record to support defendant's conviction, including the arresting officer's testimony and the MVR footage 

.  Daily briefing December 30, 2022

 

Defendant appealed his conviction for DUI, refusal to submit to breath testing, reckless driving, and failing to maintain lane, following a trial de novo. Prior to the municipal court trial, the parties stipulated to the admission of mobile video recording. The state presented the testimony of the arresting officer, who testified regarding his observations of defendant's driving and his behavior, and the attempts to have defendant perform field sobriety testing. The municipal court convicted defendant on all counts based on the officer's testimony. The municipal court also relied on the officer's testimony regarding his efforts to have defendant submit to breath testing to find that defendant failed to provide unequivocal assent to the test, which constituted a refusal. Defendant sought a trial de novo, arguing that the prosecutor's reference to the failure of defendant's co-worker to testify constituted plain error and that the municipal court erred in admitting evidence of defendant's field sobriety testing. The trial court rejected defendant's arguments and affirmed his conviction, finding that the municipal court's judgment was based on the arresting officer's first-hand observations and not on any consideration of field sobriety test results. The trial court also noted that the officer's testimony was corroborated by the MVR. On appeal, the court affirmed, finding ample evidence in the record to support defendant's conviction, including the arresting officer's testimony and the MVR footage, which the court held was considered by the trial court.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
WILLIAM MONGILLO, JR.,

Defendant-Appellant. _________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3002-20

Argued October 13, 2022 – Decided December 30, 2022

Before Judges Enright and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 07-06- 2021.

PER CURIAM
Defendant William Mongillo appeals from a May 14, 2021 Law Division

order, entered after a trial de novo on appeal from the shared Hopatcong and Stanhope municipal court, finding him guilty of driving while under the influence of intoxicating liquor (DUI), N.J.S.A. 39:4-50(a); refusal to submit to a breath test, N.J.S.A. 39:4-50.2; reckless driving, N.J.S.A. 39:4-96; and failure to maintain a lane, N.J.S.A 39:4-88(b). Defendant argues his convictions should be vacated and we should remand this matter because the trial court erred by failing to properly review and consider the exhibits received in evidence at the municipal trial. We find no merit to defendant's arguments and affirm.

I.

The following facts were adduced at the municipal court trial in February 2020. Prior to the start of testimony, the parties stipulated to the admission of a mobile video recording (MVR) into evidence. Defense counsel further agreed to waive the State's obligation to lay a factual and legal foundation for admitting the MVR into evidence.

The State's case consisted entirely of the testimony of Stanhope Police Department Sergeant Ryan P. Hickman. Hickman offered extensive testimony about his observations of defendant and his attempt to have defendant perform

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a standard field sobriety test. Defense counsel did not object to the introduction and admission of the New Jersey Standard Statement for Motor Vehicle Operators (SSMVO) and Drinking Driving Questionnaire (DDQ) into evidence. At the end of the trial, the judge reserved decision.

In June 2020, the municipal court judge issued a ten-page decision finding defendant guilty of all charges based on Hickman's observations of defendant. The judge concluded Hickman observed defendant "swerv[ing]" while driving his car and failing to maintain a lane of travel by "crossing the double yellow lines twice."1 After the officer initiated the stop and advised defendant he was swerving, defendant claimed to be "looking at his GPS" because he "needed directions to get home," although he was only twenty-five yards away. When Hickman asked defendant for his license, registration and insurance, defendant refused to make eye contact. Defendant's movements were "slow and deliberate," and he "dropped some paperwork" taken out of his glovebox. Hickman detected alcohol on defendant's breath as defendant spoke. When asked if he had been drinking, defendant admitted to consuming five beers over the course of three hours.

1 The record reflects one of the observations was captured on video, while the other occurred prior to the video being activated.

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Additionally, the judge determined Hickman directed defendant to get out of the car. Defendant "stumbled a little bit" as he got out of the car. Defendant's eyes jumped like "a typewritter ribbon" when the officer administered the horizontal gaze nystagmus (HGN) test. Hickman could not demonstrate the walk-and-turn test because defendant kept talking. Defendant was unable to complete the test because he was "unable to stand in the starting position," "tried raising his foot" and "stumbled twice."

Based on the officer's observations, defendant's statements and the failed field sobriety test, Hickman determined defendant was under the influence of alcohol. Defendant was then placed under arrest and read his Miranda2 rights. When asked if he understood his rights, defendant responded "no," then laughed and said he "understood."

At the police station, Hickman read defendant the SSMVO. When asked to take a breath test, defendant replied, "Tomorrow." Defendant was advised his answer was not acceptable and the law required that he submit samples for testing, and defendant would be charged with a refusal for any answer other than "yes.". Defendant then asked, "What is the legal limit in New Jersey?"

 

2 Miranda v. Arizona, 384 U.S. 436 (1966). 4

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Hickman made a second attempt to proceed with the standard protocol for drivers arrested for DUI. Defendant was again advised of his Miranda rights. Hickman asked defendant if he had consumed any alcohol to which he responded, "Recently, I haven't had any. I'm with you." Throughout this encounter, defendant's face was "flushed," and his speech was "mumbled and slurred." Also during this time, defendant went from being polite to "uncooperative[,] . . . downright rude," and "antagonistic." Defendant also "[made] fun of [Hickman]."

Considering defendant's testimony, the municipal judge stated he was driving home and was almost in his driveway when he was stopped by Hickman. Defendant testified he was unable to produce documents from the car because he did not know their location. Defendant contradicted Hickman's testimony, stating he: did not stumble when he exited the vehicle; performed the HGN test "very well and very good," and did not oppose a blood or urine test. Defendant also claimed the terrain was not conducive to permit the walk-and-turn test.

Based on the evidence and that of Hickman's, the municipal judge found defendant guilty of all charged offenses. The judge explained that "[t]he observations made by Sergeant Hickman of the [d]efendant, combined with the

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totality of the circumstances here, [was] enough to prove beyond a reasonable doubt that the [d]efendant was operating a motor vehicle under the influence."

Regarding defendant's refusal to take a breath test, the judge stated "anything substantially short of an[] unequivocal assent to an officer's request that the [d]efendant take the breath test constitutes a refusal." The judge further found the officer's testimony that defendant did not agree to take the breath test "the most credible testimony," while defendant's testimony was "evasive, . . . disingenuous, misleading, untrustworthy, insincere and untruthful" and summarily described as "acrimonious, rhetorical," and "not credible at all." Accordingly, the judge concluded "the State met its burden of proof [beyond] a reasonable doubt as to all charges." The judge sentenced defendant on the DUI charge as a first offender, suspending defendant's driving privileges for ninety days, and imposing other mandatory fines and penalties. Similarly, the judge imposed the mandatory fines and penalties on the remaining charges, and stayed the sentence pending defendant's appeal to the Law Division. Defendant timely appealed to the Law Division.

At the trial de novo in the Law Division, defendant challenged the conviction, contending the municipal prosecutor's reference to the failure of a female co-worker to testify on defendant's behalf during final summation

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constituted plain error under New Jersey law. Defendant also contested the municipal judge's admission of HGN and DDQ evidence. As such, defendant argued the convictions should be reversed and remanded to a "conflict" municipal court.

Following the de novo trial, on May 14, 2021, Judge Louis S. Sceusi rendered a comprehensive written decision. The judge rejected defendant's arguments and concluded the State met its burden as to each charge. The judge accepted Hickman's testimony after considering the thirty-five pages of the officer's direct testimony and his "short" cross-examination. The judge expressly noted Hickman's "first-hand observations" of defendant's intoxication was "substantial evidence " to establish the State's burden of proof. The judge also determined his findings were made "without considering the HGN results or any information elicited from the [DDQ]."

With regard to defendant's failure to maintain a lane charge, Judge Sceusi found Hickman observed defendant deviate from his lane of travel when his driver's side tires crossed over a double yellow line on two occasions. The judge further concluded Hickman's testimony "could be corroborated by reviewing the MVR which was admitted into evidence by stipulation."

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Based on the evidence presented and his credibility determinations, the judge also found comments made by the State in its closing summation about a female witness's failure to testify for defendant "did not suggest to the court that it diminished the State's burden of proof." The judge noted defense counsel failed to object to the prosecutor's comments, which "signifie[d] that the defense counsel did not believe the remarks to be prejudicial." Thus, Judge Sceusi concluded the municipal judge's failure to strike this comment did not warrant reversal or remand.

Judge Sceusi also concluded "the admission of HGN and DDQ evidence" was also harmless error "in view of the substantial evidence of [d]efendant's guilt[] from other observational testimony" presented in the municipal court, "which, by itself, [was] sufficient for the [d]efendant to be found guilty on these charges." Based on the judge's de novo review of the evidence, he concluded "there [was] ample additional observational evidence presented" which satisfied the State's burden beyond a reasonable doubt. Consequently, the judge denied the appeal, found defendant guilty of all charges, and imposed the same sentence as the municipal court.

On appeal, defendant raises the sole argument:

THE APPELLATE DIVISION SHOULD VACATE DEFENDANT-APPELLANT'S MOTOR VEHICLE

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CONVICTIONS AND REMAND THE MA TTER BACK TO THE SECOND TRIAL COURT SINCE AN OBJECTIVE REVIEW OF THE TRIAL DE NOVO STRONGLY SUGGESTS THAT IT FAILED TO RECEIVE, REVIEW, AND CONSIDER THE EXHIBITS THAT WERE RECEIVED IN EVIDENCE DURING DEFENDANT-APPELLANT'S TRIAL AT THE FIRST TRIAL COURT.

II.
Our standard of review is limited following a de novo appeal to the Law

Division, conducted on the record and developed in the municipal court. State v. Adubato, 420 N.J. Super. 167, 175-76 (App. Div. 2011) (citation omitted); see also R. 3:23-8(a)(2). We consider only "'the action of the Law Division and not that of the municipal court.'" State v. Palma, 219 N.J. 584, 591-92 (2014) (quoting State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)). We do not "'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)).

Conversely, we review de novo the court's legal conclusions and the legal consequences that flow from established facts. See State v. Goodwin, 224 N.J. 102, 110 (2016). We consider only "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Stas, 212 N.J. 37, 48-49 (2012) (quoting Locurto, 157 N.J. at 471); see also

       

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State v. Robertson, 228 N.J. 138, 148 (2017). However, "[a] trial court's resolution of a discovery issue is entitled to substantial deference and will not be overturned absent an abuse of discretion." State v. Stein, 225 N.J. 582, 593 (2016). Likewise, "[w]e review evidentiary rulings under an abuse of discretion standard." State v. Jackson, 243 N.J. 52, 64 (2020); see also Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (noting that the abuse of discretion standard is established "when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis'") (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

Given our standard of review, we are satisfied the record contains ample credible evidence to support Judge Sceusi's finding defendant was guilty of all charged offenses.

In contending Judge Sceusi failed to consider exhibits admitted into evidence, defendant particularly argues the judge "never received, reviewed, or considered the MVR evidence." Defendant contends the "[L]aw [D]ivision did not make a single finding in either the trial de novo itself or its statement of reasons describing anything that was depicted on the [twenty-six] minutes, [thirty-]second MVR." Specifically, defendant argues that, in the statement of

     

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reasons which accompanied the May 14, 2021 order, the judge failed to make a "corresponding reference to the MVR evidence" which defendant asserts contradicted Hickman's testimony that he observed defendant twice crossing the double yellow line; "pull[ing] himself up on the door" and "stumbl[ing]" when he got out of the car; and performing the walk-and-turn test. Defendant further argues the judge made his finding "solely" predicated on Hickman's testimony elicited at the municipal court trial.

In support of his argument, defendant relies on Stein for the proposition that, if the MVR contradicts the officer's testimony, such evidence is relevant in contested DUI matters. We reject defendant's arguments and conclude reliance on Stein is misplaced. In Stein, our Supreme Court held municipal prosecutors are required to provide requested videotapes that may have recorded defendant's appearance, behavior, and motor skills pursuant to Rule 7:7-7(b). 225 N.J. at 596-97. Here, there is no discovery violation concerning the MVR.

Additionally, the record is bereft of evidence that Judge Sceusi did not consider all of the evidence presented in the municipal trial. Likewise, the record does not support defendant's claim that a trial de novo was conducted without the MVR. Contrary to defendant's contentions, Judge Sceusi noted the stipulation of the MVR into evidence which supported Hickman's testimony.

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Thus, we find no merit in defendant's argument the judge's written opinion "suggests" the MVR was not received or reviewed.

Next, we note, "[a] driver is 'under the influence' of alcohol, N.J.S.A. 39:4-50, when his or her 'physical coordination or mental faculties are deleteriously affected.'" State v. Nunnally, 420 N.J. Super. 58, 67 (App. Div. 2011) (quoting State v. Emery, 27 N.J. 348, 355 (1958)). "'Intoxication' not only includes obvious manifestations of drunkenness but any degree of impairment that affects a person's ability to operate a motor vehicle." State v. Zeikel, 423 N.J. Super. 34, 48 (App. Div. 2011).

Here, Hickman's testimony provided sufficient credible evidence establishing defendant was under the influence of alcohol, engaged in reckless driving and failed to maintain a lane. Defendant admitted to drinking five beers within three hours and prior to the stop, defendant swerved and crossed the double yellow lines twice. Hickman also noted defendant had the smell of alcohol on his breath, mumbled and slurred his words, was not able to complete the field sobriety tests, swayed as he stood, had difficulty finding his license in the glovebox and giving it to Hickman, and could not get out of the car without pulling up on his car's door. As properly determined by the judge, Hickman's "first[]hand observations" were enough and amply supported his testimony that

  

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defendant was "intoxicated," and the judge's findings defendant was "intoxicated". See State v. Bealor, 187 N.J. 574, 588 (2006); see also State v. Corrado, 184 N.J. Super. 561, 567 (App. Div. 1982). Further, we concur with Judge Sceusi that the officer's testimony credibly established defendant engaged in reckless driving and failed to maintain his lane during the incident.

Having reviewed the record and guided by the governing principles, we are satisfied Judge Sceusi conducted a thorough review of the municipal court record in the trial de novo.

To the extent we have not addressed them, any remaining arguments made

3(e)(2).
Affirmed. The stay of defendant's sentence is vacated and remanded to the

Law division to impose defendant's sentence on all charges. We do not retain jurisdiction.

by defendant lack sufficient merit to warrant discussion in this opinion.

R. 2:11-

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Court affirmed Dyal subpoena State v. Ross

 Court affirmed Dyal subpoena 

 State v. Ross State appealed the denial of its search warrant application for a bullet and a Dyal subpoena for hospital medical records pertaining to surgery to remove the bullet. Daily Briefing January 04, 2023

State appealed the denial of its search warrant application for a bullet and a Dyalsubpoena for hospital medical records pertaining to surgery to remove the bullet. Defendant was shot in an exchange of gunfire with police officers and was treated at hospital in December 2017. He was indicted on multiple counts of first-degree attempted murder, second-degree aggravated assault, fourth-degree aggravated assault and weapons offenses in February 2018. In July 2018, prosecutor asked hospital if any bullet or metal fragments had been removed from defendant's body during his treatment. Hospital replied a bullet in defendant's abdomen had not been removed during emergency surgery. Motion judge denied State's motion to compel discovery in October 2021. Defendant had elective surgery in June 2022 to remove the bullet in his abdomen. Hospital informed police of the removed bullet and prosecutor applied for a search warrant. Motion judge denied the application, finding it tantamount to a motion to compel defendant to turn over potentially incriminating evidence. Court found motion judge erred by treating the search warrant application as if it were the functional equivalent of a motion to compel reciprocal discovery. The reciprocal discovery process implicated different constitutional rights than those raised by the issuance of a search warrant. Defendant's right to conduct a defense investigation did not foreclose State from obtaining a warrant to seize tangible evidence in the custody of a third party

Court further affirmed the state's objection to a portion of the defense expert's testimony, ruling that the testimony sought to impermissibly introduce a hearsay expert opinion of a medical diagnosis State v. Jaggie

Court further affirmed the state's objection to a portion of the defense expert's testimony, ruling that the testimony sought to impermissibly introduce a hearsay expert opinion of a medical diagnosis

State v. Jaggie 

Daily briefing December 08, 2022 

  Defendant also presented an expert in field sobriety tests who opined that none of the tests during defendant's traffic stop were performed correctly. The expert further opined that sleep conditions could affect a person's ability to drive and perform field sobriety tests. The municipal court sustained the state's objection to the expert's testimony regarding whether defendant had a sleep disorder diagnosis. The municipal court found defendant guilty of DWI and refusal, crediting the testimony of the police officers. Defendant requested a trial de novo, and the trial court affirmed defendant's conviction and sentence. On appeal from the trial court, the court affirmed in part and remanded.   

    The court ruled that there was sufficient credible testimony from the police officers for the municipal court to find that defendant was operating his vehicle while intoxicated and refused to submit to a breath test. The court further affirmed the state's objection to a portion of the defense expert's testimony, ruling that the testimony sought to impermissibly introduce a hearsay expert opinion of a medical diagnosis that the expert had read in one of defendant's medical reports, especially where the expert had no medical expertise. But the court ruled that the trial court erroneously affirmed the municipal court sentence rather than imposing a new sentence as required.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
DAVID A. JAGGIE,

Defendant-Appellant. _______________________

Argued November 28, 2022 – Decided December 8, 2022

Before Judges Messano and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 24- 20.

John R. Klotz argued the cause for appellant.

Lillian Kayed, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Lillian Kayed, on the brief).

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2829-20

Following a trial de novo in the Law Division, defendant David Jaggie was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. He appeals, arguing that there was insufficient evidence to establish his guilt beyond a reasonable doubt and the testimony of his expert was improperly limited. We are not persuaded by those arguments, and we affirm defendant's convictions. We remand, however, so that the Law Division can impose a sentence. The Law Division mistakenly affirmed the sentence imposed by the municipal court instead of imposing a new sentence as required after a trial de novo.

I.
On February 11, 2019, the car defendant was driving was stopped and he

was charged with several offenses, including DWI and refusal to submit to an alcohol breath test. The trial de novo in the Law Division was conducted on the municipal court record.

At trial in the municipal court, five witnesses testified: Officer Paul Pimenta, Officer Anthony Giardullo, Officer Paul Gawin, defendant, and defendant's expert Herbert Leckie. Officer Pimenta testified that in the early morning hours of February 11, 2019, he saw a vehicle in the Lincoln Tunnel veer sharply left and right and cross over the center lines of the roadway.

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Pimenta stopped the vehicle, which had been driven by defendant, and when he spoke to defendant, he detected a strong smell of alcohol and saw that defendant's eyes were bloodshot and watery. Defendant told Officer Pimenta that he consumed two beers earlier that night.

Officer Giardullo then responded to the scene to administer field sobriety tests. Giardullo testified that defendant had difficulty getting out of his vehicle and got stuck in his seatbelt. Giardullo then administered three sobriety tests, but defendant was unable to perform any of the tests satisfactorily.

Defendant was placed under arrest and transported to Port Authority Police Headquarters where Officer Gawin attempted to administer a breath test. Gawin testified that he read defendant the New Jersey Attorney General's Standard Statement for Motor Vehicle Operations (the Standard Statement), which informed defendant that he was required to submit a breath sample and that if he refused, he would be charged. Gawin also explained the consequences of refusing to submit to the test, including license revocation, installation of an ignition interlock device, referral to a driver training program, and the imposition of various penalties. Thereafter, Gawin twice asked defendant whether he would give a sample of his breath and each time defendant refused

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to submit a breath sample. Accordingly, defendant was charged with several offenses, including DWI, refusal, and unsafe lane change.

During his testimony, defendant explained that he had difficulties with sleeping and breathing and those difficulties sometimes affected his physical performance of activities. Leckie was qualified as an expert on field sobriety and breath tests. He opined that none of the field sobriety tests administered to defendant were performed correctly and were therefore unreliable. Leckie also testified that he had reviewed one of defendant's medical reports and opined that sleep-related conditions could affect a person's ability to drive and perform field sobriety tests. When Leckie attempted to testify about defendant's sleep apnea diagnosis and whether defendant had a sleep disorder, the State objected. The municipal judge sustained the objection and did not allow that testimony.

The municipal judge found defendant guilty of operating a motor vehicle while under the influence of alcohol, refusing to submit to a breath test, and failure to maintain a lane. In making those findings, the judge credited the testimony of the officers, including the observations made by Officers Pimenta and Giardullo. The municipal judge also found Officer Gawin's testimony credible concerning defendant's refusal to submit to a breath test. The municipal judge merged the convictions for DWI and refusal and sentenced defendant to a

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three-year license suspension, installation of an interlock device in his vehicle for one year, a DWI driver training program, and payment of fines and costs.

Defendant filed an appeal requesting a trial de novo in the Law Division. After reviewing the municipal court record and hearing oral argument, on March 26, 2021, the Law Division issued a written opinion and order finding defendant guilty of DWI and refusal. The Law Division did not impose a new sentence as required under Rule 3:23-8(e). Instead, the Law Division affirmed the sentence imposed by the municipal court. Defendant now appeals from the Law Division's March 26, 2021 order.

II.
On this appeal, defendant makes four arguments, which he articulates as

follows:

POINT I – THE LAW DIVISION ERRED IN DENYING [DEFENDANT'S] CLAIM THA T THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION FOR DRIVING WHILE INTOXICATED.

POINT II – THE LAW DIVISION ERRED IN DENYING [DEFENDANT'S] CLAIM THA T THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION FOR REFUSAL.

POINT III – THE LAW DIVISION ERRED IN DENYING [DEFENDANT'S] CLAIM THA T THE COURT IMPERMISS[I]BLY LIMITED THE

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TESTIMONY OF HIS EXPERT, HERB[ERT] LECKIE, AND THUS DENIED THE DEFENSE THE ABILITY TO PRESENT A FULL AND FAIR DEFENSE.

POINT IV – CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL.

On an appeal of a municipal conviction to the Law Division, the Law Division judge must decide the matter de novo on the record. State v. Monaco, 444 N.J. Super. 539, 549 (App. Div. 2016) (citing R. 3:23-8(a)(2)). This means that the Law Division judge must independently make his or her own factual findings, rather than determine whether the findings of the municipal judge were supported by sufficient credible evidence. State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012); see also State v. Johnson, 42 N.J. 146, 157 (1964). In making findings about witness credibility, the Law Division judge should give "due" but "not necessarily controlling" weight to the municipal judge's credibility determinations, because the municipal judge had the opportunity to observe the testimony firsthand. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (quoting Johnson, 42 N.J. at 157).1

1

      

In his opinion, the Law Division judge correctly identified that he was to conduct a de novo review. At other places in the opinion, however, the judge sometimes stated that he was relying on the municipal judge's findings and deferring to the municipal judge's credibility findings. Our review of the record

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When we review the Law Division judge's decision, our standard is different and more limited. We do not decide the facts de novo. Instead, we decide whether the Law Division judge's factual findings were supported by "sufficient credible evidence." State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting Johnson, 42 N.J. at 161-62); Monaco, 444 N.J. Super. at 549. Where both the municipal judge and the Law Division judge have found a witness credible, we owe particularly strong deference to the Law Division judge's credibility findings. State v. Robertson, 228 N.J. 138 (2017). We review the Law Division judge's legal conclusions de novo. See State v. Rivera, 411 N.J. Super. 492, 497 (App. Div. 2010).

1. The Conviction for DWI.

A person is guilty of DWI if he or she "operates a motor vehicle while under the influence of intoxicating liquor . . . or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood." N.J.S.A. 39:4-50(a). "Under the influence" of alcohol means a driver's "physical coordination or mental faculties are deleteriously

satisfies us that the Law Division judge conducted an appropriate de novo trial. We remind Law Division judges, however, that they should use the appropriate de novo standard of review and make that clear in their oral or written findings of facts and conclusions of law.

     

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affected." State v. Nunnally, 420 N.J. Super. 58, 67 (App. Div. 2011) (first quoting N.J.S.A. 39:4-50, and then quoting State v. Emery, 27 N.J. 348, 355 (1958)). The driver does not have to be "absolutely 'drunk'" or "sodden with alcohol." State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988). So long as the alcohol "affects the [driver's] judgment or control . . . 'as to make it improper for him [or her] to drive,'" the driver is under the influence. State v. Cryan, 363 N.J. Super. 442, 455 (App. Div. 2003) (quoting Johnson, 42 N.J. at 165).

Proof of intoxication can be based on a police officer's observations. See State v. Slinger, 281 N.J. Super. 538, 543 (App. Div. 1995). Those observations may include "physical evidence of drunkenness, such as . . . failure of defendant to perform adequately on balance and coordination tests." State v. Ghegan, 213 N.J. Super. 383, 385 (App. Div. 1986); see also State v. Sisti, 209 N.J. Super. 148, 150-51 (App. Div. 1986) (finding that defendant was under the influence based on officer's observations of erratic driving, inability to produce driver's license, an alcoholic odor from defendant's breath, slow hand movements, and failure to pass a field test for balance).

Officer Pimenta testified that he saw defendant driving erratically, smelled alcohol on defendant's breath, saw defendant's eyes were bloodshot and

         

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watery, and observed defendant fumble for his driving documents when asked to provide them. Officer Giardullo testified that defendant got tangled in his seatbelt while exiting his car and failed three field sobriety tests. Based on their observations of defendant, both Pimenta and Giardullo believed that defendant was under the influence of alcohol.

The municipal judge found both officers' testimony credible. The Law Division judge relied on those credibility findings and effectively adopted them. The credible testimony of the officers was sufficient to establish beyond a reasonable doubt that defendant had driven his vehicle while under the influence of alcohol in violation of N.J.S.A. 39:4-50(a).

2. The Conviction for Refusal to Submit to a Breath Test.

Under the implied consent statute, "[a] person who operates a motor vehicle on any public road, street or highway . . . in this State, shall be deemed to have given his [or her] consent to the taking of samples of his [or her] breath for the purposes of making chemical tests to determine alcohol concentration." N.J.S.A. 39:3-10.24(a). If a defendant refuses to provide a breath sample, a police officer must read the Standard Statement, which "inform[s] the person arrested of the consequences of refusing to submit to such test." N.J.S.A. 39:4- 50.4a; State v. Marquez, 202 N.J. 485, 501 (2010).

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Refusal is "a separate and distinct offense from [the] conviction of drunk driving." State v. Wright, 107 N.J. 488, 504 (1987). Our Supreme Court has outlined four elements to sustain a conviction for refusal to submit to a breath test:

(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for [DWI]; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test.

[Marquez, 202 N.J. at 503.]
An officer who reads the Standard Statement satisfies the requirement to inform the motorist of the consequences of refusal to submit to a breath test. Id. at 509- 10.

The testimony by Officers Pimenta and Giardullo established that there was probable cause to believe that defendant had been driving while under the influence and he was therefore arrested for DWI. Officer Gawin testified that he read defendant the Standard Statement and defendant twice refused to submit to the test. The Law Division judge correctly found that Officer Gawin's testimony complied with the statutory requirements establishing that defendant had been requested to submit to the test but refused. The Law Division judge

 

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also correctly rejected defendant's testimony that he could not recall saying no because that testimony does not undercut the testimony of Officer Gawin. Consequently, there was sufficient evidence to find defendant guilty of refusal.

3. The Testimony of Defendant's Expert.

Defendant argues that the Law Division erred in denying his claim that the municipal court improperly limited Leckie's testimony. The municipal court had sustained the State's objection when Leckie tried to testify about a diagnosis of sleep apnea which Leckie read in a medical report. The Law Division correctly agreed with the municipal court's decision to limit Leckie's testimony.

An expert must have a factual basis for an opinion. Townsend v. Pierre, 221 N.J. 36, 55 (2015). Under N.J.R.E. 703, facts or data on which an expert bases his or her opinion "need not be admissible in evidence" so long as they are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." The rule "permits a hearsay statement, such as a medical report by a non-testifying expert, to be referred to by a testifying expert for the purpose of apprising the [fact finder] of the basis for his [or her] opinion." Agha v. Feiner, 198 N.J. 50, 63 (2009). The rule "does not, [however], allow expert testimony to serve as 'a vehicle for the "wholesale [introduction] of otherwise inadmissible evidence."'" Ibid. (second alteration in

 

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original) (quoting State v. Vanderweaghe, 351 N.J. Super. 467, 480-81 (App. Div. 2002)).

N.J.R.E. 808 limits the presentation of hearsay expert opinions. Specifically, that rule directs:

Expert opinion that is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion tend to establish its trustworthiness. Factors to consider include the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion.

Together Rules 703 and 808 "limit the ability of a testifying expert to convey to [a fact finder] either (1) objective 'facts or data' or (2) subjective 'opinions' based on such facts, which had been set forth in a hearsay report issued by a non-testifying expert." James v. Ruiz, 440 N.J. Super. 45, 66 (App. Div. 2015). "In either instance, the testifying expert may not serve as an improper conduit for substantive declarations (whether they be objective or subjective in nature) by a non-testifying expert source." Ibid.

Leckie was permitted to reference the non-testifying doctor's medical report as it related to his opinion that defendant's sleep condition might have affected defendant's ability to drive or perform field sobriety tests. The Law

 

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Division and municipal court were both correct in limiting Leckie from testifying about the doctor's diagnosis or whether defendant had a sleep disorder. The diagnosis and the issue of whether defendant had a sleep disorder require medical expertise. Leckie had no such expertise. Accordingly, Leckie could not offer an opinion outside his area of expertise by referencing a medical opinion in a report by a non-testifying medical doctor.

4. The Cumulative Errors.

Having rejected all of defendant's substantive arguments concerning errors, there are no cumulative errors warranting a reversal. In analyzing a claim of cumulative errors, the focus is whether the "cumulative effect can cast sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 443 (2008). The record establishes that defendant was accorded a fair trial.

5. The Sentence.

After conducting a trial de novo, the Law Division is required to impose a new sentence. State v. Moran, 202 N.J. 311, 325 (2010) (citing R. 3:23-8(e)). Here, the Law Division judge incorrectly affirmed the municipal court sentence. Accordingly, we remand so that the Law Division can impose a new sentence. That sentence cannot impose penalties beyond the penalties imposed in the municipal court. State v. Ciancaglini, 204 N.J. 597, 604 (2011). In remanding,

  

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we vacate any previously entered stay of defendant's sentence. Accordingly, when defendant is sentenced, the sentence is to take effect immediately.

Affirmed in part and remanded. We do not retain jurisdiction.

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Defense attorney could not waive defendant attendance at suppression motion State v. Hogges

 Defense attorney could not waive defendant attendance at suppression motion

State v. Hogges

Daily Briefing

December 02, 2022 at 12:00 AM        DOCKET  Practice Area: Criminal Law Date filed: 2022-12-02 Court: Appellate Division Judge: Judge DeAlmeida Case Number: A-1666-19

Defendant appealed his judgment of conviction arising from a motor vehicle accident that resulted in serious bodily injury, and from his aggregate sentence of 23 years imprisonment. While intoxicated, defendant ran a red light and crashed into another vehicle. After the crash, defendant exited his vehicle, walked past the other vehicle without rendering assistance to the seriously injured driver, and left the scene. A passing motorist reported the accident to police, who soon after found defendant walking away from the scene of the crash with a limp. Officers found defendant bleeding, agitated, and unresponsive to police commands. When defendant failed to comply with the officer's order to get to the ground, the officer resorted to yelling and profanity to get defendant to comply. The officer's body camera footage also recorded the officer asking defendant "what happened?" Defendant replied that the other driver had run the red light. The officer also expressly told defendant that he was under arrest for DWI, smelling the odor of alcohol from defendant but unable to perform field sobriety tests due to his injury. While being transported to the hospital, another officer asked defendant if he had been drinking, to which defendant responded "no." Defendant also admitted that he was at a restaurant "having a good time" prior to the crash. At the hospital, defendant refused to submit to blood alcohol testing. Prior to trial, defendant moved to suppress his statements to the officers, arguing that he was in custody from the time he was ordered to the ground and that the officers failed to advise him of his Miranda rights. The trial court denied the motion. On appeal, the court reversed the denial of defendant's suppression motion and vacated his conviction. The court noted that defendant was not present at the motion hearing, and held that defense counsel did not clearly have authority to waive defendant's right to be present.

State v. Timothy J. Canfield (A-53-21

 State v. Timothy J. Canfield (A-53-21) (086644)

(NOTE: The Court did not write a plenary opinion in this case. The Court affirms as modified the judgment of the Appellate Division substantially for the reasons expressed in Judge Susswein’s opinion, published at 470 N.J. Super. 234 (App. Div. 2022).)

Argued November 7, 2022 -- Decided January 11, 2023 PER CURIAM

The Court considers the Appellate Division’s determination that it was not plain error for the trial court to fail to charge the jury on the lesser-included offense of passion/provocation manslaughter when defendant did not request the instruction. The Court also considers whether, as recommended by the Appellate Division, trial courts should be required in certain cases to consider whether to instruct the jury on that lesser-included offense even if no party requests the instruction.

In January 2013, defendant Timothy J. Canfield shot and killed K.P., his sister-in-law’s former boyfriend. Defendant claimed that he acted in self-defense. He testified that K.P., who was HIV-positive, came towards him during their argument while holding an object that defendant believed to be a hypodermic syringe. Defendant was charged with first-degree murder.

At the charge conference, defendant objected to giving any instruction on lesser-included offenses, but the trial court charged the jury on aggravated and reckless manslaughter. Defendant did not request an instruction on passion/ provocation manslaughter, and the court did not instruct the jury, sua sponte, on that lesser-included offense. The jury acquitted defendant of murder but convicted him of the lesser-included offense of aggravated manslaughter, among other offenses.

The Appellate Division held that it was not plain error for the trial court not to give the passion/provocation manslaughter instruction because even accepting defendant’s version of the fatal confrontation, that instruction was not clearly indicated. 470 N.J. Super. 234, 293 (App. Div. 2022). But the appellate court proposed a measure to ensure that the appropriateness of a passion/provocation manslaughter instruction be considered first by the trial court. Id. at 260.

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The Appellate Division recommended a new procedural rule: “when, in a murder prosecution, the trial court determines to instruct the jury on self-defense at the charge conference . . . , the court should also consider and make specific findings on the record as to whether to instruct the jury on the lesser-included offense of passion/provocation manslaughter, regardless of whether either party has requested that instruction.” Ibid. To implement its proposed rule, the Appellate Division recommended that the model jury instructions for murder, aggravated manslaughter, manslaughter, and self-defense be reviewed. Id. at 301.

The Court granted certification. 251 N.J. 38 (2022).

HELD: The Court affirms as modified the judgment of the Appellate Division substantially for the reasons stated in Judge Susswein’s published opinion. The Court explains why it does not believe the Appellate Division’s proposed procedural rule is necessary.

1. The Appellate Division correctly applied the plain error standard of review because the invited error doctrine does not apply in this case. The trial court could not have actually relied on defendant’s position that the jury should not be charged on any lesser-included offenses because the trial court did charge the jury on two lesser-included offenses. (pp. 2-3)

2. Different standards apply depending on whether the defendant requests a lesser- included offense instruction. If the defendant requests such a charge, the trial court must include it if, viewing the evidence in the light most favorable to the defendant, there is a rational basis in the record for doing so. If the defendant does not request a lesser-included offense charge, the instruction is only required if “clearly indicated” by the facts in evidence. That is, only if the evidence is jumping off the page must the court give the instruction sua sponte. (pp. 3-4)

3. The Court adopts the Appellate Division’s analysis of why it was not plain error for the trial court not to give a passion/provocation instruction sua sponte. (pp. 4-5)

4. The Court departs from the Appellate Division’s decision only as to whether a new procedural rule is warranted. The Appellate Division, parties, and amici cite only three published cases in the past three decades in which a jury verdict was reversed because the court’s failure to instruct the jury on passion/provocationmanslaughter sua sponte was found to be plain error. Given the apparent infrequency of such plain errors, the Court does not view the Appellate Division’s proposed procedural rule to be critical to protecting otherwise valid jury verdicts from reversal. (pp. 5-8)

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5. The “clearly indicated” standard was specifically created by appellate courts and is more appropriately a tool of post-verdict and appellate review. Because the Court believes the current practice correctly balances the interests of the prosecution, the defense, and the public, it declines to adopt the proposed rule. (pp. 8-9)

State v. Eddie L. Oliver

 Based on the text of the new statute and its legislative history, the Court concludes the Compassionate Release Act affords judges discretion to deny relief, in exceptional circumstances, even if the law’s medical and public safety conditions are satisfied. In individual cases, when the medical and public safety factors are met, courts can assess whether extraordinary aggravating factors exist that justify the denial of compassionate release. That high standard comports with the Legislature’s goal to make greater use of compassionate release. Absent any such circumstances, petitions for relief should be granted.

State v. A.M.

 Based on the text of the new statute and its legislative history, the Court concludes the Compassionate Release Act affords judges discretion to deny relief, in exceptional circumstances, even if the law’s medical and public safety conditions are satisfied. In individual cases, when the medical and public safety factors are met, courts can assess whether extraordinary aggravating factors exist that justify the denial of compassionate release. That high standard comports with the Legislature’s goal to make greater use of compassionate release. Absent any such circumstances, petitions for relief should be granted.

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY VS. COUNTY PROSECUTORS ASSOCIATION OF NEW JERSEY

 

         In this appeal, plaintiff American Civil Liberties Union of New Jersey (ACLU) contended defendant County Prosecutors Association of New Jersey (CPANJ) is a public agency subject to records requests under the Open Public Records Act (OPRA) and the common law right of access.  The ACLU requested CPANJ to produce documents regarding CPANJ's funding, the context and contents of its meetings and events (including dates, times, and locations), and the people performing its operating functions.  CPANJ denied the records request in its entirety, contending it is "not a public agency subject to the dictates of OPRA or requests made under the common law right of access." 

         The court held CPANJ is not a public agency subject to OPRA and is not a public entity subject to the common law right of access.  Therefore, disclosure of the requested records was properly denied.  

STATE OF NEW JERSEY VS. ERIC A. BURNHAM

 This case addresses the issue of whether sales tax should be included when calculating the "full retail value" of merchandise under New Jersey's shoplifting gradation statute.  N.J.S.A. 2C:20-11(c).  Defendant pled guilty to shoplifting an Xbox One with an advertised price of $499.99.  Shoplifting constitutes a crime of the third degree "if the full retail value of the merchandise exceeds $500 but is less than $75,000" and a crime of the fourth degree "if the full retail value of the merchandise is at least $200 but does not exceed $500."  N.J.S.A. 2C:20–11(c)(2) and (c)(3).    The State utilized sales tax in grading defendant's offense, and he was therefore charged with a third-degree offense.  

The court analyzed the theft statute, which specifically utilizes sales tax to calculate the "amount involved" in its statutory gradation scheme.  However, the court observed the shoplifting statute contains no such provision.  The court concluded because the Legislature did not determine sales tax should be included in the valuation of full retail value in enacting the shoplifting gradation statute, it was improper for sales tax to have been utilized to increase defendant's charge to a third-degree offense.  

STATE OF NEW JERSEY VS. SHAREEF O. GRAY (19-10-1681,

 STATE OF NEW JERSEY VS. SHAREEF O. GRAY (19-10-1681, MIDDLESEX COUNTY AND STATEWIDE)

Defendant's car was subjected to a warrantless search incident to an unrelated sting operation planned and carried out by New Jersey State Police.  The State Police detained defendant after a parking lot melee involving three other persons, including the target of the sting operation.  Due to the cold weather, state troopers detained defendant in his car.  After a state trooper opened defendant's car door and placed him inside, the trooper smelled the odor of marijuana.  Based on the trooper's detection of marijuana, the State Police sought defendant's consent to search the car.  After initially refusing, defendant consented, and the State Police conducted a search of the car.  The State Police found no marijuana in the car, but they recovered an illegal gun.  Defendant filed a motion to suppress the gun, arguing the initial entry into his vehicle constituted an unconstitutional search.  The trial court denied the motion, finding the State Police's justification that it was too cold to detain defendant outside was sufficient under the totality of the circumstances.

The Court held that the trial court mistakenly applied State v. Woodson, 236 N.J. Super. 537 (App. Div. 1989), and State v. Conquest, 243 N.J. Super. 528 (App. Div. 1990), and that the opening of the car door constituted an impermissible search.

STATE OF NEW JERSEY VS. WELDER D. MORENTE-DUBON

  Defendant was charged with first-degree murder, two weapons offenses, and hindering apprehension.  Tried to a jury, defendant was convicted of the lesser-included offense of second-degree passion-provocation manslaughter, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon, and not guilty of hindering apprehension.  The trial court found aggravating factors one, three, four, and nine, N.J.S.A. 2C:44-1(a)(1), (3), (4), and (9), and mitigating factor seven N.J.S.A. 2C:44-1(b)(7), but rejected mitigating factor nine, N.J.S.A. 2C:44-1(b)(9).  Following merger of the weapons counts, he was sentenced to a nine-and-one-half-year term, subject to the parole ineligibility and parole supervision imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2.  

The court addressed the judicial factfinding undertaken by the trial court as part of its sentencing analysis.  The court concluded that the trial court's findings regarding the degree of provocation and sufficient time to cool off before delivering the fatal blows were contrary to the jury's verdict and violated the doctrine of fundamental fairness.  
The court also held that aggravating factor four applies to a defendant taking "advantage of a position of trust or confidence" relating to the victim "to commit the offense," not to a minor's subsequent participation in an attempted coverup of the homicide.  

The court also addressed the need for a trial court to provide a detailed explanation of how it reconciles its application of aggravating factor three and mitigating factor seven, the weight assigned to those factors, and how those factors are balanced with respect to a defendant who had no prior juvenile or criminal history and no subsequent criminal history in the decade that elapsed before his arrest.  

 The court vacated defendant's sentence and remanded for resentencing, directing the trial court to not consider whether defendant was adequately provoked or had adequate time to cool off before inflicting the fatal blows, to not apply aggravating factor four, and to apply mitigating factor fourteen.  The court further directed that the trial court reconsider whether aggravating factor three applies and if so, the weight to be given to it.  

State Of New Jersey In The Interest Of E.S.

The Court agrees with the Appellate Division that the trial court did not abuse its discretion in deciding to hear the defendant’s waiver motion before considering his suppression motion. The Court declines, however, to adopt a preference that the Family Part hear suppression motions before waiver motions, holding instead that it is within the discretion of the Family Part to determine its schedule of proceedings and manage its calendar. The Court sets forth factors that Family Part judges should take into consideration in exercising their discretion as to the order in which to hear waiver and suppression motions. 

State v. Oscar Ramirez

After reviewing the relevant statutes and authorities that must be considered in balancing the competing interests and rights of a sexual assault victim and the person accused of the sexual offense, the Court sets forth a framework of procedures and considerations to apply going forward when a prosecutor seeks to withhold from discovery a sexual assault victim’s address. Because neither the ruling of the trial court nor that of the Appellate Division sufficiently addresses the competing interests explored in the Court’s opinion, the Court remands the matter for a more fulsome balancing of the competing interests. 

State v. Jamal Wade Summary - A-31-21 It was error to admit defendant’s statements after detectives failed to honor his invocation of the right to counsel, and that error was not harmless in light of the circumstantial nature of the evidence against defendant and his statements’ capacity to undermine his credibility before the jury.

State v. Jamal Wade  Summary - A-31-21 It was error to admit defendant’s statements after detectives failed to honor his invocation of the right to counsel, and that error was not harmless in light of the circumstantial nature of the evidence against defendant and his statements’ capacity to undermine his credibility before the jury.

If not charged, police could ask questions here State v. Flores Defendant appealed the denial of her motion to withdraw her guilty plea. Daily briefing September 27, 2022 A-3726-20

   If not charged, police could ask questions here State v. Flores Defendant appealed the denial of her motion to withdraw her guilty plea.  Daily briefing September 27, 2022  A-3726-20  

Defendant appealed the denial of her motion to withdraw her guilty plea. Defendant was indicted in 2005 for arson, theft and conspiracy to commit arson and theft. She pled guilty to the conspiracy charge, entered PTI, successfully completed it in 2007 and all charges were dismissed. She moved to withdraw her guilty plea in 2021 but not to vacate her PTI program completion and the dismissal of all charges. She asserted she did not understand the legal definition of "conspiracy" when she pled guilty and she now realized she did not engage in criminal activity. She was also unaware of the possible collateral consequences to a guilty plea. Trial court found there was an adequate factual basis for her plea when she admitted she agreed her brother would illegally dispose of her car and, when she learned the car had been burned, she reported it stolen. Trial court applied the post-sentence manifest injustice standard and the four-factor analytical paradigm in State v. Slater, 198 N.J. 145. Defendant argued her guilty plea was not supported by an adequate factual basis. Court affirmed trial court because defendant sought a remedy not authorized for a plea withdrawal motion, the retention of her PTI program completion and the withdrawal of all charges, and agreed her plea was supported by an adequate factual basis.

NJ recently made Magic mushroom use or possession now only a disorderly offense, was previously a 3rd degree crime.

 NJ recently made Magic mushroom use or possession now only a disorderly offense, was previously a 3rd degree crime.

This missed the newspapers articles on legal weed

New 2C :35-10 .  Possession

 

P.L. 2021, CHAPTER 9, approved February 4, 2021

Senate, No. 3256

 

An Act concerning psilocybin and amending N.J.S.2C:35-10.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    N.J.S.2C:35-10 is amended to read as follows:

     2C:35-10.  Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition.

     a.     It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).  Any person who violates this section with respect to:……

…… or

     (5)  Possession of one ounce or less of psilocybin is a disorderly persons offense.

     Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.

     b.    Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.

     In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.

     c.     Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.

(cf: P.L.1997, c.181, s.6)

 

     2.    This act shall take effect immediately.

 

 

STATEMENT

 

     Currently, pursuant to paragraph (1) of subsection a. of N.J.S.2C:35-10, possession of any amount of psilocybin, a Schedule I controlled dangerous substance, is a crime of the third degree.  This bill would reclassify possession of psilocybin as a disorderly persons offense, punishable by up to up to six months imprisonment, a fine of up to $1,000, or both. 

                                 

 

     Reclassifies possession of psilocybin as disorderly persons offense.

 

State v. Briggs IP Address Data Did Not Require Warrant Because It Could Not Show Person's Movements

State v. Briggs  IP Address Data Did Not Require Warrant Because It Could Not Show Person's Movements

Defendant moved to suppress IP address data proffered by the state in defendant's criminal case. Police had issued an emergency disclosure request to a cell service provider seeking information relating to a certain phone number, including the customer name, email address, and recent IP addresses. In response to the request, police received subscriber information and an IP address log for the number.
Police issued a subsequent subpoena to an ISP provider, which turned over information showing that the IP addresses in the log belonged to various casinos in Las Vegas. The state also issued grand jury subpoenas to Google seeking subscriber information and IP address data for several Gmail addresses. Google turned over information that included IP address data for several hotels and casinos in Las Vegas.
In support of his motion to suppress the IP address data, defendant argued that such data was equivalent to cell site location information, which the U.S. Supreme Court, in Carpenter v. U.S., 138 S.Ct. 2206, had ruled could only be obtained by law enforcement via a warrant. In opposition to defendant's motion, the state argued that IP address data was not analogous to CSLI and therefore did not require a warrant to request. Specifically, the state contended that a person did not have a reasonable expectation of privacy in his or her location when they shared their location information by logging into an ISP's network.
The court denied defendant's motion. The court first noted that multiple federal circuit courts had declined to extend Fourth Amendment protection to IP address data as the Supreme Court had for CSLI. The court agreed with the state that CSLI was distinct from IP address data since CSLI could provide law enforcement with information about both a person's location and their movements. Conversely, IP address data could not provide information about a person's movement, as the address data only showed the discrete locations where a person had logged into the internet. Thus, the court ruled that a warrant was not required for law enforcement to request IP address data from internet and cell data service providers.

source Daily briefing October 03, 2022 at 12:00 AM       DOCKET  

 Case Number: 18-08-647 CASE DIGEST SUMMARY