State v. M.A.

08-29-08 State v. M.A.
A-4922-06T4

Defendant stole over $650,000 from his employer. A
warrantless search of two workplace computers, conducted
pursuant to the employer's consent, revealed evidence confirming
the theft. Defendant appeals from the denial of his motion to
suppress evidence seized from the computers, contending that he
had a right to privacy in the personal information he stored in
the computers. We concluded defendant had no reasonable
expectation of privacy under the Fourth Amendment or the New
Jersey Constitution in the contents of the computers, including
the personal information.

State v. J.G.

8-20-08 State of New Jersey v. J.G.
A-2539-07T4

The cleric-penitent privilege may be invoked by either the
cleric or the penitent. To be protected by the privilege, the
communication must have been made (1) in confidence; (2) to a
cleric; and (3) to the cleric in his or her role as a spiritual
advisor.

The privilege does not apply where a cleric reaches out to
an individual to intervene in unlawful conduct -- in this case
sexual abuse of defendant's two daughters -- in an effort to
stop the unlawful conduct and the cleric refuses to provide
counsel or spiritual services -- in this case baptism -- to the
individual.

State v. Tri-Way Kars, Inc.

8-18-08 State of New Jersey v. Tri-Way Kars, Inc.
A-1256-07T4

We held that a municipal court had no jurisdiction under
N.J.S.A. 56:8-14 to assess a penalty for an alleged Consumer
Fraud Act violation in connection with the sale of a used motor
vehicle because N.J.S.A. 56:8-14 only grants jurisdiction over
penalty enforcement actions.

We also held that the Central Municipal Court of Bergen
County had no jurisdiction under N.J.S.A. 56:8-14.1 to assess
such a penalty because that statute expressly limits
jurisdiction over penalty assessment cases to municipalities
"where the offense was committed or where the defendant may be
found." Here, the offense was committed in South Hackensack
where defendant conducted business and we concluded that this
specific statute trumped the general power of the Assignment
Judge to refer cases to the Central Municipal Court under
N.J.S.A. 2B:12-1(e).

Finally, we provided guidance for future actions respecting
the insufficiency of the municipal court "Complaint-Summons SF-1
and SF-2" to adequately provide notice of the essential facts of
a penalty assessment action, as opposed to a penalty enforcement
action where the use of these forms has been approved by the
Administrative Office of the Courts.

State v. Walter Quezada

8-13-08 State of New Jersey v. Walter Quezada
A-6472-05T2

A volunteer fireman who calls in false alarms and responds
to the scene of the reported fire may be convicted of official
misconduct, N.J.S.A. 2C:30-2. A conviction for setting false
fire alarms, N.J.S.A. 2C:33-3, merges into official misconduct
when the false alarm constitutes the official misconduct.

State of New Jersey v. Michael A. Cooper

08-06-08 State of New Jersey v. Michael A. Cooper
A-1066-06T4

On remand following the Appellate Division's decision
ordering that sentences be served concurrently, and not
consecutively as originally imposed, the aggregate sentence
imposed on remand cannot be longer than the period of parole
ineligibility flowing from the original sentence as well as the
original aggregate specific term; hence, on remand when a
consecutive sentence must be made to run concurrent with a
sentence carrying a parole ineligibility term under the No Early
Release Act, the new specific term sentence imposed cannot be
greater than that which produces an 85 percent parole
ineligibility term greater than the original period of parole
ineligibility.

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HANDLING DRUG, DWI & MOTOR VEHICLE VIOLATIONS IN MUNICIPAL COURT
September 15, 2008 5:30 PM to 9:30 PM
New Jersey Law Center, New Brunswick

Speakers include:
HON. JOAN ROBINSON GROSS
Presiding Judge, Union County

KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
Editor: “New Jersey Municipal Court Review”
2006 NJSBA Municipal Court Practitioner of the Year
Kenneth Vercammen & Associates (Edison)

WILLIAM G. BRIGIANI, ESQ.
Brigiani, Cohen, & Schneider (East Brunswick)

JOHN MENZEL, ESQ.
Moore & Menzel (Point Pleasant)

Dennis Driscoll
Municipal Prosecutor (Denville, Montville, Rockaway Township, Morris Plains & Netcong)
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• Increased refusal penalties
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Presented in cooperation with the NJSBA Municipal Court Practice Section, NJSBA General Practice Section, and the NJSBA Young Lawyers Division

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program: S1507d-14380

State of New Jersey v. Michael A. Cooper

08-06-08 A-1066-06T4

On remand following the Appellate Division's decision ordering that sentences be served concurrently, and not consecutively as originally imposed, the aggregate sentence imposed on remand cannot be longer than the period of parole ineligibility flowing from the original sentence as well as the original aggregate specific term; hence, on remand when a consecutive sentence must be made to run concurrent with a sentence carrying a parole ineligibility term under the No Early Release Act, the new specific term sentence imposed cannot be greater than that which produces an 85 percent parole ineligibility term greater than the original period of parole ineligibility.


Editor, Mitch Zuckerman

State v. Oscar Osorio

08-04-08 A-2067-05T4

Under the 2005 decision of the Supreme Court of the United States in Johnson v. California, a defendant may establish a prima facie case of the discriminatory use of peremptory challenges by producing evidence sufficient to support an inference that discrimination has occurred. Therefore, the part of our Supreme Court's decision in Gilmore that required a defendant to show a "substantial likelihood" of the discriminatory use of peremptory challenges to establish a prima facie case has been superseded by Johnson.

State v. Robert K. Thompson, et al.

08-01-08 A-2279-07T4

Violation of the Conflicts of Interest Law and a corresponding Code of Ethics of a department of State government, standing alone, does not provide a basis for criminal prosecution for official misconduct. We affirmed the dismissal of counts containing such charges. But when such violations are combined with official acts benefiting or intending to benefit the party with whom the public official has a conflict, official misconduct may be charged. We reversed the dismissal counts containing such charges.

State of New Jersey v. Cecilia X. Chen

07-31-08 A-4251-06T5

The admissibility of the identification evidence presented at trial is the most significant issue raised on this appeal from a conviction for attempted murder. The victim initially identified the defendant under highly suggestive circumstances that posed a significant risk of compromising the initial and subsequent identifications. Law enforcement officers had no role in creating, encouraging or permitting the highly suggestive procedures utilized at the time of the initial identification.

We conclude that when there is evidence that the highly suggestive words or conduct of a private citizen pose a significant risk of misidentification, a preliminary hearing on admissibility of the identification is required. The holding is based on the court's responsibility to ensure that evidence of pre-trial identifications meet the standard for admission of such evidence, N.J.R.E. 803, and the Court's authority to exclude evidence of subsequent identifications that are of such questionable reliability that the probative value is substantially outweighed by the risk of prejudice and misleading the jury, N.J.R.E. 403. See State v. Michaels, 136 N.J. 299, 316 (1994); State v. Williams, 39 N.J. 471, 489 (1963).

State OF New Jersey - In the Interest of X.B.

07-31-08 A-3053-06T4

X.B., a juvenile, was arrested for trespassing on public housing property, despite being notified that he was on a list prohibiting him from being on the housing complex property. Following his adjudication as a delinquent, he appealed, arguing his inclusion on the list was unconstitutional as applied to him.

We affirmed the trial court's finding of delinquency and found no constitutional infirmity as applied to him. We did, however, caution public entities who maintain such lists to consider adopting regulations regarding one's placement on and removal from the list and establishing a procedure whereby one can challenge placement on the list.

State v. Nazario Ventura & State v. Leidy Granados

8-5-08 (A-45-07) & (A-74-07)

A motion for remission of forfeited bail is assessed in a fact-sensitive manner, weighing a multitude of factors outlined in State v. Hyers and its progeny. A crucial factor in every bail remission case is whether the defendant remains a fugitive. In each of these cases, there was no abuse of discretion in thedenial of the separate motions to remit the forfeited bail.

State v. Scott E. Schnabel

7-29-08 (A-13-07)

The Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence was properly admitted and, in light of that evidence, evidence of third-party sexual abuse should have been admitted.

State of New Jersey v. Joseph M. Bringhurst

07-23-08 A-4302-06T5

We conclude that post-conviction relief (PCR) petitions brought pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed.2d 413 (1990), must comply with Rule 7:10-2, and are subject to the five-year limit contained in Rule 7:10-2 (g)(2). However, those time limits may be relaxed to prevent an injustice. Because a Laurick PCR cannot be brought until there is a second or subsequent DWI conviction, the time bar should not mechanically be applied to deny the petition. However, to obtain the benefit of relaxation of the time limit, a defendant must put forth a prima facie case for relief in his petition itself.

In this case, where defendant's prior, uncounseled conviction was allegedly rendered ten years earlier, he failed to put forth a prima facie case for relief in his PCR petition. Therefore, its denial was appropriate.


Editor, Mitch Zuckerman

State v. V.D.

07-23-08 A-2357-06T5

Defendant entered a negotiated plea of guilty to two counts of the fourth-degree crime of possession of a false document,
N.J.S.A. 2C:21-2.1(d). The trial court placed defendant on probation with the special condition that she notify the Bureau
of Immigration and Customs Enforcement (ICE). We struck that condition. It was not reasonably contemplated by defendant when she pled guilty and, in any event, exceeded the authority of the trial court.

State v. Rambo

07-22-08 A-5923-04T4

Defendant, who admitted shooting and killing his wife, was convicted of murder. The trial court correctly refused to charge passion/provocation manslaughter. Defendant argued he was entitled to a new trial because the Probate Part had refused, under the "Slayer Statutes" to allow him access to funds to retain private counsel of his choice. We did not procedurally have jurisdiction to review the orders of the Probate Part because defendant's appeal was only from the judgment of conviction.

State v. Shariff Ingram

7-21-08 (A-58/59-07)

When a defendant is charged as an accomplice and lesser-included offenses already are charged in an indictment, the trial court comprehensively must charge the jury on the elements both of the lesser-included crimes and of accomplice liability.
Nevertheless, the failure to so separately charge the jury here did not constitute reversible error. The prosecutor did not misstate the applicability of the statutory affirmative defense to felony murder. In these circumstances, it was error for the
trial court to instruct the jury that the defendant’s voluntary absence from the trial could be construed by the jury as evidence of consciousness of guilt, and that error mandates a new trial.

State v. Darren L. Bradshaw

7-10-08 (A-46-07)

The judgment of the Appellate Division is affirmed, but for different reasons. The trial court abused its discretion when it denied defendant from fully presenting his alibi testimony and the preclusion of that testimony constituted harmful error, requiring a new trial; consequently, the Court need not reach the constitutional issue. At any retrial, the prosecutor should neither argue facts that are not in the record, nor expressly or implicitly vouch for the credibility of the victim.

State v. Janet Gelman, n/k/a Caitlin Ryerson

7-8-08 (A-42-07)

The current N.J.S.A. 2C:34-1 is insolubly ambiguous concerning whether a defendant can be charged with the fourth-degree crime of prostitution based on a prior petty disorderly persons conviction under the predecessor statute. The Court is thus
compelled to apply the doctrine of lenity and dismiss the indictment.

State of New Jersey v. Anthony Gioe, et al.

07-02-08 A-1214-06T5

The novel issue addressed in this appeal is whether a search warrant is invalid where an affiant failed to appear
personally before a municipal court judge as required under Rule 3:5-3(a). We found the "insufficiencies or irregularities" in
the proceedings to obtain the search warrant did not violate defendant's substantive rights, and they did not invalidate the
search warrant that was issued. R. 3:5-7(g). Accordingly, we affirmed the order denying defendant's motion to suppress.