New Jersey Criminal Defense Attorney Blog

State v. Jamal Muhammad, unpublished opinion, App. Div. Docket No. A-3219-06T4 (March 31, 2010) - Denial of PCR reversed, case remanded for new hearing. "Defendant appeals, contending that he was constructively denied his right to counsel at his PCR hearing because PCR counsel did not consult with him, failed to raise the issues he requested, and submitted a brief so deficient that PCR counsel appeared to be arguing the facts of a case other than his case.

For example, PCR counsel wrote in the brief that '[n]o statements were collected from the victims, there were no interviews conducted of people who witnessed the alleged crime, and there were [no] statements taken from the victim indicating that she was not injured from the actions of [defendant].'

However, there was only one victim in this case, the victim was a male, and he died as a result of the incident. PCR counsel also raised issues not supported by the record, i.e., that defendant should have received rehabilitation, rather than prison, for a murder conviction.... We conclude that PCR counsel violated Rule 3:22-6(d) by failing to present all of defendant's PCR petition claims, and by filing a deficient brief. Accordingly, this matter must be remanded for a new PCR hearing."

State in the Interest of C.V., a Juvenile, ? N.J. ?, 2010 N.J. LEXIS 235 (March 22, 2010) - "The issue in this appeal is whether a juvenile is entitled to credit on her suspended sentence for the time she spent in two residential treatment programs.... As made evident by the family court judge's multiple attempts to find a suitable residential placement for C.V. and, moreover, his delay in imposing a suspended sentence, C.V.'s placements at YCS and VisionQuest were meant to facilitate her rehabilitation. Although each program placed on her restrictions similar to those that had been imposed on S.T. at Pinelands, YCS and VisionQuest imposed those rules and physical restrictions in order to create the best environment for treatment.

C.V. was never physically confined at the facilities; indeed, she succeeded in running away from both. Thus, we have no disagreement with the Appellate Division's unassailable determination that C.V.'s placements in YCS and VisionQuest do not satisfy the intended concept of detention in Rule 5:21-3(e) to qualify for mandatory day-to-day credit....

We hold that the Family Part court retains the flexibility, in appropriate cases, to grant a probationer who violated or otherwise imperfectly performed the conditions of probation a lesser custodial sentence than the previously suspended sentence. The court's authority to resentence provides the mechanism for that adjustment when the court believes it to be appropriate.

Merely because a juvenile is not entitled to mandatory credit on his or her custodial sentence does not deprive the court of its ordinary flexibility in crafting a just sentence. In sum, the Family Part court here was limited only by the maximum statutory term provided by N.J.S.A. 2A:4A-44(d) for C.V.'s offense...."

State in the Interest of T.M., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 38 (March 8, 2010) - Denial of waiver of juvenile to adult court reversed. "We agree with the State that the undisputed evidence presented at the waiver hearing was sufficient to establish probable cause to conclude that the seventeen-year-old juvenile ... possessed firearms while in possession of heroin with intent to distribute....

The judge of the Family Part concluded that the evidence was insufficient to establish probable cause that T.M. possessed the safe and its contents, especially because Erica M. had been found on the third floor and could have placed the movable safe under T.M.'s bed as the police entered the home. The judge criticized the Newark police for neglecting to obtain fingerprints from the safe or the guns....

While the possibility that someone else placed the safe under T.M.'s bed without his knowledge may provide reasonable doubt to the ultimate factfinder, guilt or innocence is not at issue in a waiver hearing.... Here, it was more probable than not that the safe found under T.M's bed, in the bedroom that he occupied alone, was in his possession and he knew what it contained.

One can reasonably infer from the safe's location and T.M.'s exclusive occupancy of the room that T.M. put it under the bed. Although the safe was locked and movable, there was no evidence that anyone else had placed it there.... Here, the trial court imposed a burden upon the State to prove more than probable cause, essentially T.M.'s guilt. Imposition of that burden was legal error."

State v. Saladin Thompson, unpublished opinion, App. Div. Docket No. A-5366-06T3 (March 25, 2010) - "[W]e are satisfied that defendant established a prima facie case of purposeful discrimination in the prosecutor's exercise of peremptory challenges to excuse seven African-American prospective jurors. We therefore remand to the trial court for further proceedings pursuant to State v. Gilmore, 103 N.J. 508, 537 (1986)....

[D]efendant satisfied the first step of the three-step Gilmore test and the court should have required the prosecution to proceed to articulate clear and reasonably specific explanations for the excusal of the seven African-American jurors. Id. at 537. Of her twelve peremptory challenges provided by Rule 1:8-3(d), the prosecutor excused nine jurors, seven of whom were African-Americans, as is defendant.

The use of seven of a total of nine peremptory challenges the prosecution exercised to excuse African-Americans is evidence that the prosecutor excused a cognizable class of prospective jurors. The excusal of these seven African-Americans is also evidence that the prosecutor used a disproportionate number of peremptory challenges against this cognizable group. Id. at 535-36.

We do not agree with the argument advanced by the State that the proportionality analysis is based upon the total number of African-Americans finally seated, which in this case was five. While the composition of the jurors ultimately seated is a factor the court may consider in the third step of the process in weighing whether a defendant has met the ultimate burden of proving impermissible discrimination, it is not a factor that weighs against the defendant insofar as establishing a prima facie case. Id. at 536."

State v. Jamal R. Taylor, unpublished opinion, App. Div. Docket No. A-4447-08T4 (March 2, 2010) - Order granting new trial based on juror misconduct affirmed.

"The court found [juror] S.W's comments [to State's witness Detective Fine during a break in the trial], and the points of view expressed therein, had the capacity of undermining the reliability of the jury's verdict. Specifically, the comments 'you did fine' and either 'the defense lawyer was kind of crazy' or 'defense attorneys can be assholes' revealed that S.W. had 'a preconceived notion about criminal defense attorneys, a bias, a predisposition that certainly should have been revealed during voir dire.'...

Here, we agree with the trial court that S.W.'s bias or hostility against either this particular defense counsel, or criminal defense attorneys as a class, if disclosed during voir dire, would have most likely resulted in his exclusion from this jury panel based on counsel's exercise of one of her preemptory challenges. Indeed, such bias would have constituted sufficient grounds to excuse S.W. for cause....

[T]he State's argument that the trial court erred in failing to interrogate the other eleven jurors to ascertain whether S.W.'s bias tainted the entire jury... ignores defendant's constitutional right to a fair and impartial jury, which requires that all twelve jurors adhere to their oath to scrupulously follow the court's instructions on the law and to base their ultimate judgment only on the evidence presented in court."

Burglary is a either a second or third degree crime, depending on the factors described below. A second-degree crime in NJ is punishable by 5-10 years in prison. A third-degree carries a sentence of 3-5 years in prison.

§ 2C:18-2. Burglary

a. Burglary defined. A person is guilty of burglary if, with purpose to commit an offense therein or thereon he:

(1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter;

(2) Surreptitiously remains in a research facility, structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so; or

(3) Trespasses in or upon utility company property where public notice prohibiting trespass is given by conspicuous posting, or fencing or other enclosure manifestly designed to exclude intruders.

b. Grading. Burglary is a crime of the second degree if in the course of committing the offense, the actor:

(1) Purposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone; or

(2) Is armed with or displays what appear to be explosives or a deadly weapon.

Otherwise burglary is a crime of the third degree. An act shall be deemed "in the course of committing" an offense if it occurs in an attempt to commit an offense or in immediate flight after the attempt or commission.

Continue reading "N.J.S.A. 2C:18-2 - New Jersey Burglary Charges " »

Manasquan Municipal Court

Location: 201 East Main Street
Manasquan, NJ 08736

Phone: (732) 223-0600

The judge in Manasquan Court is the Honorable Mark T. Apostolou. The prosecutor is James Carton, IV. The court administrator is Marie Higgins. Manasquan is a beach town, with many visitors frequenting the town during the summer months. This results in a spike in traffic tickets, DWI and criminal arrests.

State v. Thelfas Cooper, unpublished opinion, App. Div. Docket No. A-1561-08T4 (March 18, 2010) - "We conclude that State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999) requires an evidentiary hearing on defendant's petition.

Therefore, we vacate the order denying the petition and remand for a hearing at which defendant and his trial counsel may be called to testify regarding their communications about defendant's citizenship status and risk of deportation and the effect of those communications upon defendant's decision to plead guilty....

The trial court should not simply have assumed that defendant's trial counsel was 'under the impression that [defendant] was a citizen and did not face deportation[,]' even though defendant's certification alleged that he 'informed [his trial counsel] when we first met that I was not a citizen.' Instead, the court should have adduced testimony from both defendant and his trial counsel regarding their communications about defendant's citizenship status and the effect of those conversations upon defendant's decision to plead guilty." (Mark Zavotsky, Designated Counsel)

State v. Jerry P. Bush, unpublished opinion, App. Div. Docket No. A-4837-06T4 (March 31, 2010) - Denial of motion to withdraw guilty plea reversed, case remanded for further proceedings.

"[D]efendant filed a motion to withdraw his guilty plea on the grounds that he had learned of the State's intent to pursue new charges against him based upon his stepdaughter's claims, revealed in July 2006, that defendant had engaged in sexual activity with her in addition to taking the photographs. Defense counsel certified that, '[h]ad defendant known at the time of his guilty plea that just two months later [his stepdaughter] would accuse him of sexual assault, allegations which he vehemently denies, he never would have entered a guilty plea to the taking of the photographs.'...

The trial judge noted that the '[S]tate was unaware of the more serious charges until after the guilty plea was entered....' The judge did not address, however, whether or not the intervening event of the second indictment charging the more serious offense of first-degree aggravated sexual assault, had any bearing upon defendant's plea with respect to the knowledge which informed his decision to enter into that plea.

Nor did the judge address defendant's 'colorable claim of innocence,' [citation omitted], that counsel represented was set forth in the letter defendant ultimately decided not to submit to the court.... Having considered these contentions in light of the record and controlling legal principles, we conclude that defendant is entitled to the benefit of a hearing pursuant to the Supreme Court's recent decision in State v. Slater, 198 N.J. 145 (2009), which was decided during the pendency of defendant's appeal." (Raquel Y. Bristol, A.D.P.D.)

State v. Mathurin Ambroise, unpublished opinion, App. Div. Docket No. A-3018-08T4 (March 11, 2010) - Order denying motion to withdraw guilty plea reversed. "In denying the motion with respect to the immigration consequences, the trial court referred to those consequences as 'collateral' to the entry of a guilty plea. In its brief to us, the State repeats that characterization, citing State v. Chung, 210 N.J. Super. 427 (App. Div. 1986).

Chung, however, no longer represents the law. The Supreme Court in July 2009 decided State v. Nunez-Valdez, 200 N.J. 129, 138, 143 (2009), in which it stressed the necessity of a defendant having a full understanding of the potential immigration consequences of a guilty plea. The trial court did not have the benefit of the Court's analysis at the time of defendant's motion, for it was decided some months after the trial court decided that motion. Defendant's appeal, however, was pending before us at the time of the Court's decision, and he is entitled to pipeline retroactivity."

Vincente Esteves, a man who once owned a gated mansion in Manalapan that featured an indoor movie theatre, pleaded guilty before Judge Anthony J. Mellaci, Jr. in Freehold on March 25 of running a million dollar a week cocaine trafficking enterprise out of that home.

During his plea hearing, Esteves implicated five alleged co-defendants, all New Jersey residents but did not mention his wife, Chantal, who is alleged to have assisted in the operation. Esteves pleaded guilty to second-degree racketeering and conspiracy, and first -degree charges of leading a drug trafficking network, drug possession with intent to distribute, and money laundering. He faces up to 25 years in prison.

DYFS v. N.J. and D.R./Matter of D.J., N.D.R., and N.J., ? N.J. Super ?, 2010 N.J. Super. LEXIS ? (March 30, 2010) - "In this parental termination case, the Law Guardian for three children appeals from the Family Part's denial of her request to compel the prospective adoptive parents to continue visitation among the siblings as a function both of the court's parens patriae power and the children's constitutional right to associate with their siblings post-adoption. We affirm....

[T]he interests at stake here are not the rights of the natural parents whose rights have already been terminated, but rather the rights of the adoptive parents, who step into the shoes of the natural parents.... It is the adoptive parents' rights that may be infringed in the future, and therefore, it is their rights as parents that must be considered.... [C]oncerns over loss of parental autonomy and disruption to the new adoptive family, as well as their consequent chilling effect on adoptions, are ... implicated in sibling visitation post-adoption.

The Law Guardian offers no compelling reason why the Legislature's rejection of open adoptions is not as pertinent to the issue of sibling visitation as it is to grandparent visitation or why the same chilling effect on the State's effort to recruit adoptive parents ... would not be extant were sibling visitation forced upon non-relative adoptive parents. It seems to us that the heavy toll on New Jersey's "strong public policy in favor of permanency" for children in the foster care system, [citation omitted], would be the same.... [T]he Family Part was ... correct in withholding any residual power to compel sibling visitation because of the absence in this record of clear and convincing evidence of 'exceptional circumstances.'" (Randi Mandelbaum, Designated Counsel, Law Guardian)

State v. Frederick L. Hunt, unpublished opinion, App. Div. Docket No. A-1463-07T4 (March 25, 2010) - Conviction for possession of a firearm without a permit reversed. "The prosecution presented the disputed evidence [that two witnesses to defendant's taking of the gun would not give police their addresses because they 'were in fear for retaliation [because they] didn't know if the individual was involved in a gang or a drug deal...'] in response to defense cross-examination of Officer Kelly about the absence of addresses or phone numbers in his police report for the two elderly men to whom he spoke immediately before apprehending defendant....

Defendant now argues on appeal that the redirect testimony of the officer contained prejudicial hearsay that attributed criminal conduct to him, namely, it implied that defendant was involved in gang or drug dealing activity and might retaliate against the two men.... The testimony objected to was neither hearsay nor evidence of other crimes that should have been excluded under N.J.R.E. 404(b).... Nevertheless, reference to retaliation and gang or drug dealing activity should have been excluded because its probative value was substantially outweighed by the potential that it would unfairly prejudice defendant. N.J.R.E. 403....

Defendant was not accused of any criminal activity other than the alleged unlawful possession of the gun. Injecting the specter of possible retaliation and gang or drug dealing activity into the trial was highly prejudicial to defendant. At the same time, the probative value of the two men's statements was limited to collateral issues regarding the Officer Kelly's credibility and competency, but those issues were not particularly relevant to defendant's guilt or innocence.... Here, the State's need to explain the absence of addresses for the two men could have been satisfied by simply stating that the men would not give their addresses, without adding their reasons.

State v. Darryl T. Hester, unpublished opinion, App. Div. Docket No. A-6528-06T4 (March 18, 2010) - Convictions reversed. "In summary, evidence was presented to the jury that the police had conducted a month to a month and one-half long surveillance of the activities at Banks's apartment that first focused on Banks but later focused on defendant, as well.

During the course of that surveillance, defendant was observed as the seller in a hand-to-hand transfer of drugs, a criminal act, and that act constituted part of the evidence used by the police to establish probable cause for the issuance of warrants to search the apartment and defendant's person.

Additionally, controlled purchases from defendant had taken place. As the result of the police's investigation and the evidence thus garnered, court-authorized warrants were issued ..., leading to the discovery, not only the cocaine and heroin that formed the basis for the indictments, but also marijuana, providing the basis for another uncharged crime. Defense counsel did not object to the introduction of any of this evidence, and indeed, solicited the majority of it....

[D]efense counsel sought, by examining Buckley regarding his surveillance, to elicit testimony that would implicate Banks as possessor of the drugs found in Banks's apartment and would exculpate defendant. The opposite occurred, since defense counsel's questions led to the disclosure that Buckley had witnessed defendant as the transferror in a hand-to-hand transfer of drugs....

[E]ven if a proper basis for introduction of other crimes evidence had been identified and accepted, the trial judge must instruct the jury on the limited purpose for which the evidence is admissible and must inform the jury of the uses of the evidence that are prohibited.... This did not occur. Rather, the judge merely gave a contemporaneous instruction to the jury that it must focus on the crimes charged in the indictment....

We are satisfied that, in the circumstances presented, the combination of introduction of other crimes evidence with evidence that probable cause for the issuance of warrants had been established on the basis of evidence that was not presented to the jury was sufficient to create a real possibility of an unjust result, thereby constituting plain error. While much of the evidence was introduced through the efforts of defense counsel, the errors committed were sufficient to 'cut mortally into [defendant's] substantive rights,' [citation omitted], therefore requiring a reversal of defendant's conviction." (Frank M. Gennaro, Designated Counsel)

State v. J.I.F., unpublished opinion, App. Div. Docket No. A-6270-07T4 (March 4, 2010) - Conviction reversed. Trial court erred by allowing the State to present expert evidence on Battered Woman Syndrome (BWS).

"We have found no case where expert testimony respecting the characteristics of a battered woman and BWS was presented in the absence of any evidence of a coercive control pattern and its effects and an expert opinion as to whether the victim was battered....

The opinions offered by Dr. Lischick were simply not sufficient to be relevant to the facts of this case.... Here, the testimony of Dr. Lischick merely established that battered spouses may falsely recant their accusations. It did not tend to prove that this victim's recantations were false because Dr. Lischick did not opine that the victim was a battered spouse.

Even if the victim's statement that she feared defendant's physical reactions to not getting his way may have been relevant to an expert opinion that she was a battered spouse, and we do not doubt that it might be, Dr. Lischick never opined the victim was a battered spouse.

And it is clear from the whole of Dr. Lischick's testimony that this determination requires expertise beyond the ken of the average juror. Without such an opinion, the scientific fact that battered women tend to recant their accusations did not tend to prove that this victim's recantations were false. There was no logical connection between the proffered evidence and the fact at issue -- the falsity of the exculpatory statements.... As a result, Dr. Lischick's testimony was not relevant, admissible evidence and the judge erred in admitting it."

State v. Vincent P. Boland, unpublished opinion, App. Div. Docket No. A-5857-07T4 (March 23, 2010) - Conviction for harassment reversed. "[W]e are unable to give the credibility findings of the municipal court judge the usual deference due to the concern that his perception of the case was colored by his prior experience [involving a teacher hitting a student when he was in school] and the evidentiary error in refusing to consider L.G.'s financial interest in these events [because of his pending civil suit against defendant] when weighing his credibility.

Accordingly, we remand for a retrial before a different Law Division judge. The retrial is not a de novo trial based on the earlier testimony. Rather a new trial must be conducted with witnesses testifying in order that the trier of fact can determine credibility.... We also reverse because no adequate findings were made on the intent required to sustain a charge of harassment ... under N.J.S.A. 2C:33-4(a)....

It is only where the statements are said with animus, with the purpose to harass the student, independent of any legitimate teaching concern, that the harassment statute should be invoked. On remand, careful attention must be paid not only to determining the credibility of the witnesses to decide what actually happened but also to ascertain if defendant had any intent to harass within the meaning of the statute."

In this recent NJ DYFS case, the New Jersey Supreme Court gives some guidance to when documents should be admitted under the business record exception to the hearsay rule.

DYFS v. M.C., III/ Matter of M.C. IV and N.C., ? N.J. ?, 2010 N.J. LEXIS ? (March 31, 2010) - Order finding abuse and neglect affirmed. "Our disposition of this case makes it unnecessary to decide whether various exhibits that were admitted would have been admissible in evidence if a proper objection had been made.

Nevertheless, this appeal highlights the need to give some guidance for future cases. We take this opportunity to give some general guidance for the admission of documentary evidence in abuse and neglect cases.... [The] key to the admissibility of documents ... is whether the evidence was created 'in the regular course of business of any hospital or any other public or private institution or agency.' ...

Although the phrase 'in the regular course of business' is not defined in Title 9, our courts have suggested that the phrase should be interpreted as identical to the meaning of that phrase in the business-records exception to the hearsay rule....

Under the business records exception to the hearsay rule, a party seeking to admit a hearsay statement pursuant to this rule must demonstrate that 'the writing [was] made in the regular course of business,' the writing was 'prepared within a short time of the act, condition or event being described,' and 'the source of
the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.' State v. Matulewicz, 101 N.J. 27, 29 (1985) (citation omitted)." (James A. Louis, D.P.D., Law Guardian; Beatrix W. Shear, D.P.D., for M.C., III)

Jenkins v. D.O.C., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 35 (March 5, 2010) - Finding of disciplinary infraction affirmed. "Rahgeam Jenkins, an inmate at New Jersey State Prison, appeals from the final decision of the Department of Corrections (DOC) finding him guilty of disciplinary infraction *.011, which is defined in N.J.A.C. 10A:4-4.1 as 'possession or exhibition of anything related to a security threat group.'

He challenges the regulation as unconstitutionally vague and the sufficiency of the evidence against him.... The thrust of Jenkins's appeal is that, without notice of the 'specifically prohibited words or images relating to STG groups,' the regulation is unconstitutionally vague because it fails to provide adequate notice to those individuals who are subject to it. See State v. Cameron, 100 N.J. 586, 591 (1985).

To prevail on a facial vagueness challenge, the law must be shown to be impermissibly vague in all its applications. Id. at 594. When, however, the law is challenged as applied, it must be proven that the law is unclear in the context of the particular case.... at a minimum, the regulation provided notice that the possession of 'security threat group literature' is prohibited; that such 'literature' includes correspondence and that, if the contents of the letter 'relate either directly or indirectly to the goals of a security threat group,' it will fall within the prohibition.

We reject the argument that due process requires the DOC to specifically identify prohibited words or images relating to security threat groups. A list of prohibited terms and symbols would be easily sidestepped by inmates motivated to do so and would subvert the prison's legitimate objective to curtail STG activity....

[W]e conclude that this regulation survives the facial vagueness challenge because it provides inmates with adequate notice that involvement in STG activity will not be tolerated and identifies general categories of behavior that will subject them to disciplinary action....

Given the common thread of language identified by the investigator as part of the Bloods vernacular and the expressed interest in evading prison regulations, these letters are fairly considered to 'relate either directly or indirectly to the goals of a security threat group,' that is, 'a group of inmates possessing common characteristics, interests and goals' that poses a threat to the interruption of 'the safe, secure and orderly operation of the correctional facility[].' N.J.A.C. 10A:5-1.3. Therefore, we conclude that the regulation provided Jenkins with fair notice that possession of these letters was prohibited."

State v. Scott Munroe, unpublished opinion, App. Div. Docket No. A-5109-08T4 (March 3, 2010) - Denial of motion to dismiss charges and bar retrial reversed, case remanded for orders of dismissal.

"Application of [Yeager v. U.S., 129 S.Ct. 2360 (2009)] to the present matter satisfies us that the remaining charges against defendant arising out of the events of September 16, 2006 must be dismissed. As we have noted, in the factual circumstances presented, all of those charges require a jury finding that defendant possessed a gun that he utilized in committing the crimes at issue.

However, in the first trial, the jury acquitted defendant of both possession of a weapon for an unlawful purpose and unlawful possession of a handgun. Because of that verdict's preclusive effect, retrial is barred. Otherwise, the finality of judgments -- one of the two core values of the double jeopardy clause -- will be violated." (Kevin G. Roe)

State v. Marc A. Jordan, unpublished opinion, App. Div. Docket No. A-5661-07T4 (March 5, 2010) - Denial of motion to withdraw guilty plea reversed. "The trial court denied defendant's application to withdraw the guilty plea on the basis that it was barred by the doctrine of res judicata because an earlier motion to withdraw the guilty plea had been denied.

This ruling was in error. The doctrine of res judicata precludes 'relitigation of the same controversy between the same parties.'... For the doctrine to apply there must be a final judgment from a court of competent jurisdiction and an identity of issues, parties, and cause of action....

Here there is no identity of issues. The preceding motion was to withdraw the plea for lack of a factual basis. The motion involved in this appeal was to withdraw the plea due to a Brady[ v. Maryland, 373 U.S. 83 (1963)] violation which defendant maintains he discovered after the former motion was denied. These are two very different issues. Accordingly, we remand in order that the trial court consider the motion on its merits."

State v. Frederick L. Hunt, unpublished opinion, App. Div. Docket No. A-1463-07T4 (March 25, 2010) - NJ Conviction for possession of a firearm without a permit reversed. "At trial, defendant asserted that he was arrested within one minute of picking up a handgun he found on the sidewalk to prevent danger to children and others, he never intended to keep the gun, and he had no opportunity to turn it in to the police before his arrest....

A common law defense of justification was presented by the evidence, and it was relevant to opposing arguments regarding the one disputed issue in the case, defendant's intent. Justification as a defense required instruction to the jury, even in the absence of a request by counsel.... In this case, the State argues that danger to nearby children and others was not imminent and compelling....

Although there was no specific evidence of children or others who might have picked up the gun, other than the two elderly men, the immediacy of danger presented by a loaded handgun on a city sidewalk was a factual issue for the jury to determine. Defendant was entitled to the jury's consideration of a provision of the Code that recognizes a defense of justification to protect against a greater harm than his own allegedly temporary possession of the handgun without a permit....

[The jury instructions] focusing the jury only on 'the time and opportunity to surrender the handgun,' and on whether defendant intended to do so, did not fully apprise the jury of the law regarding alleged justification for defendant's conduct. Charges on temporary possession and intent, combined with a charge on justification, would have fully informed the jury about the law applicable to the factual issues raised by the defense." (Kevin G. Byrnes, Designated Counsel)

NJ Conviction Reversed After Defendant Excluded From Trial

State v. Michael Stuart, unpublished opinion, App. Div. Docket No. A-5060-06T4 (March 30, 2010) - Conviction reversed. "Based on one disruptive incident that occurred before the judge charged the jury, defendant was excluded from the courtroom during the court's charge to the jury and for the entire period of deliberations.

Despite defense counsel's request shortly after defendant's initial removal, the judge did not bring defendant back to court to address him as to whether defendant was prepared to behave appropriately if allowed to return to trial.... Our concern for this defendant's exclusion from the trial turns on the unusual facts of this case.

In a statement to the police, defendant admitted that he asked the store clerk for money, but denied that he 'announced a robbery.' He also denied having a gun or pretending to be armed with a gun during the robbery. The witnesses testified that defendant said he had a gun and threatened to shoot the owner.

But those allegations did not appear in any of the reports of the police officers who spoke to those witnesses.... In short, in the context of this case, we cannot conclude that defendant's continued exclusion form the trial was harmless error. The jury obviously had questions about the case, as evidenced by its extensive requests for read backs.

And the consequence of the jury's verdict could not be overstated. At age thirty-three, defendant faced life in prison without parole. On this set of facts, we conclude that defendant's continuing exclusion from the courtroom, without giving him any further opportunity to repudiate his improper conduct and return to the trial, was plain error mandating reversal of his conviction." See also SENTENCING - MISCELLANEOUS. (Amira R. Scurato, A.D.P.D.)

In this recent criminal appeal, the court held that the Goddard School, a Nursery/Kindergarden school, is not a "school" within the meaning of the State of New Jersey's drug possession and distribution laws.

State v. Jason Shelley, unpublished opinion, App. Div. Docket No. A-0868-07T4 (March 22, 2010) - Conviction for distribution within a school zone reversed. "In his motion to dismiss the school-zone count, defendant maintained that a nursery school/kindergarten is not an 'elementary school' within the meaning of N.J.S.A. 2C:35-7.

The motion judge disagreed, finding that although the Goddard School was primarily a facility for pre-school children, it did have a kindergarten and thus came within the definition of an 'elementary' school under the Education Administrative Code regulations, N.J.A.C. 6A:32-2.1, and 'non-public' elementary school, under N.J.A.C. 6A:9-2.1. We disagree.

The inclusion of 'kindergarten' within the Education Administrative Code's definition of an 'elementary school' does not render the Goddard School an elementary school for purposes of the criminal school-zone statute.... [W]ithout any grade levels beyond kindergarten, the Goddard School is not an institution at which students fulfill their compulsory school-attendance requirements.

Thus, while a facility that offers kindergarten in combination with higher grades qualifies as a 'school' under our Education Administrative Code, it is the inclusion of those higher grades, at which attendance is compulsory, that causes the institution to be deemed a 'school' for regulatory purposes
and, by extension, an 'elementary school' for school-zone purposes." (Stephen W. Kirsch, A.D.P.D.)

Stengart v. Loving Care, Inc., ? N.J. ?, 2010 N.J. LEXIS 241 (March 30, 2010) -- The New Jersey Supreme Court held this week that an employee may reasonably expect that e-mail communications with her lawyer through her personal, password-protected, Web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege.

DYFS v. M.C., III/ Matter of M.C. IV and N.C., ? N.J. ?, 2010 N.J. LEXIS (March 31, 2010) - Order finding abuse and neglect affirmed by the NJ Supreme Court.

The Appellate Division found plain error in the admission of documentary evidence and the use of hearsay contained within the documents.... However, the NJ Supreme Court found that consistent with the doctrine of invited error, on appeal, the father may not protest the admission of the documents after he agreed to their admission at trial....

The record is clear that defendant consented to the admission of the relevant documents. Indeed, the one document that defendant objected to, P-1, was not admitted into evidence. Importantly, by consenting to the admission of the documents, defendant deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling based on the arguments presented by both sides. That is, if defense counsel had objected to the Screening Summary and other documents, and the trial court agreed with those objections, the Division could have taken steps to satisfy any evidentiary requirements needed for the admission of the documents or presented a witness or witnesses in place of the documents....

Under those circumstances, we hold that defendant is barred by the doctrine of invited error from contesting for the first time on appeal the admission of the various documents. Thus, we find no reversible error in the trial court's consideration of those documents in reaching its conclusions." See also EVIDENCE. (James A. Louis, D.P.D., Law Guardian; Beatrix W. Shear, D.P.D., for M.C., III)
http://www.judiciary.state.nj.us/opinions/supreme/A9608DYFSvMCIII.pdf

In New Jersey, not only are there harsh penalties for speeding, but also for driving too slow. it is illegal to drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in "compliance with law."

A violation of this statute carries 2 motor vehicle and insurance eligibility points. There is also a fine of $50-$200, or 15 days jail (unlikely to be imposed), or both. For a third or subsequent conviction, the MVC will assess 4 penalty points.

§ 2C:17-1. Arson and related offenses

In New Jersey, arson is either a crime of the first or second degree, depending on the facts of the case. A first-degree crime is punishable by 10-20 years in prison, while a second-degree is punishable by by 5-10 years.

a. Aggravated arson. A person is guilty of aggravated arson, a crime of the second degree, if he starts a fire or causes an explosion, whether on his own property or another's:

(1) Thereby purposely or knowingly placing another person in danger of death or bodily injury; or

(2) With the purpose of destroying a building or structure of another; or

(3) With the purpose of collecting insurance for the destruction or damage to such property under circumstances which recklessly place any other person in danger of death or bodily injury; or

(4) With the purpose of destroying or damaging a structure in order to exempt the structure, completely or partially, from the provisions of any State, county or local zoning, planning or building law, regulation, ordinance or enactment under circumstances which recklessly place any other person in danger of death or bodily injury; or

(5) With the purpose of destroying or damaging any forest.

b. Arson. A person is guilty of arson, a crime of the third degree, if he purposely starts a fire or causes an explosion, whether on his own property or another's:

(1) Thereby recklessly placing another person in danger of death or bodily injury; or

(2) Thereby recklessly placing a building or structure of another in danger of damage or destruction; or

(3) With the purpose of collecting insurance for the destruction or damage to such property; or

(4) With the purpose of destroying or damaging a structure in order to exempt the structure, completely or partially, from the provisions of any State, county or local zoning, planning or building law, regulation, ordinance or enactment; or

(5) Thereby recklessly placing a forest in danger of damage or destruction.

c. Failure to control or report dangerous fire. A person who knows that a fire is endangering life or a substantial amount of property of another and either fails to take reasonable measures to put out or control the fire, when he can do so without substantial risk to himself, or to give prompt fire alarm, commits a crime of the fourth degree if:

(1) He knows that he is under an official, contractual, or other legal duty to prevent or combat the fire; or

(2) The fire was started, albeit lawfully, by him or with his assent, or on property in his custody or control.

d. Any person who, directly or indirectly, pays or accepts or offers to pay or accept any form of consideration including, but not limited to, money or any other pecuniary benefit, regardless of whether any consideration is actually exchanged for the purpose of starting a fire or causing an explosion in violation of this section commits a crime of the first degree.

e. Notwithstanding the provisions of any section of this Title to the contrary, if a person is convicted of aggravated arson pursuant to the provisions of subsection a. of this section and the structure which was the target of the offense was a health care facility or a physician's office, the sentence imposed shall include a term of imprisonment. The court may not suspend or make any other noncustodial disposition of a person sentenced pursuant to the provisions of this subsection.

f. Definitions. "Structure" is defined in section 2C:18-1. Property is that of another, for the purpose of this section, if any one other than the actor has a possessory, or legal or equitable proprietary interest therein. Property is that of another for the purpose of this section, if anyone other than the actor has a legal or equitable interest in the property including, but not limited to, a mortgage, pledge, lien or security interest therein. If a building or structure is divided into separately occupied units, any unit not occupied by the actor is an occupied structure of another.

As used in this section, "forest" means and includes any forest, brush land, grass land, salt marsh, wooded area and any combination thereof, including but not limited to, an open space area, public lands, wetlands, park lands, natural habitats, a State conservation area, a wildlife refuge area or any other designated undeveloped open space whether or not it is subject to specific protection under law.

As used in this section, "health care facility" means health care facility as defined in section 2 of P.L.1971, c. 136 (C. 26:2H-2).

g. Notwithstanding the provisions of any section of this Title to the contrary, if a person is convicted pursuant to the provisions of subsection a., b. or d. of this section and the structure which was the target of the offense was a church, synagogue, temple or other place of public worship, that person commits a crime of the first degree and the sentence imposed shall include a term of imprisonment. The term of imprisonment shall include a minimum term of 15 years, during which the defendant shall be ineligible for parole. The court may not suspend or make any other noncustodial disposition of a person sentenced pursuant to the provisions of this subsection.

West Long Branch Municipal Court

Location: 399 Monmouth Road
(corner of Deal and Monmouth Roads)
Oakhurst, NJ 07755

Phone: (732) 531-0291
Fax: (732) 531-0302

Court sessions are on Thursdays. The judge in West Long Branch Court is Louis Garippo, Jr., J.M.C. The court administrator is Kathleen McCann. West Long Branch Police issue a fair number of traffic and speeding tickets. A lot of underage drinking, DWI and drug possession arrests are also made in West Long Branch.

Shoplifting is a common offense in New Jersey which, depending on the value of the items alleged to have been taken, can subject you to from 6 months in jail to up to 10 years on prison. If you have been charged with shoplifting anywhere in New Jersey, call now for a free consultation with a NJ shoplifting defense attorney on your rights and the penalties you may be facing.

c. Gradation. (1) Shoplifting constitutes a crime of the second degree under subsection b. of this section if the full retail value of the merchandise is $ 75,000 or more, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is $ 1,000 or more.

(2) Shoplifting constitutes a crime of the third degree under subsection b. of this section if the full retail value of the merchandise exceeds $ 500 but is less than $ 75,000, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is less than $ 1,000.

(3) Shoplifting constitutes a crime of the fourth degree under subsection b. of this section if the full retail value of the merchandise is at least $ 200 but does not exceed $ 500.

(4) Shoplifting is a disorderly persons offense under subsection b. of this section if the full retail value of the merchandise is less than $ 200.

The value of the merchandise involved in a violation of this section may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons, or were committed in furtherance of or in conjunction with an organized retail theft enterprise.

Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C:43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows: for a first offense, at least ten days of community service; for a second offense, at least 15 days of community service; and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days.

a. Definitions. The following definitions apply to this section:

(1) "Shopping cart" means those push carts of the type or types which are commonly provided by grocery stores, drug stores or other retail mercantile establishments for the use of the public in transporting commodities in stores and markets and, incidentally, from the stores to a place outside the store;

(2) "Store or other retail mercantile establishment" means a place where merchandise is displayed, held, stored or sold or offered to the public for sale;

(3) "Merchandise" means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof;

(4) "Merchant" means any owner or operator of any store or other retail mercantile establishment, or any agent, servant, employee, lessee, consignee, officer, director, franchisee or independent contractor of such owner or proprietor;

(5) "Person" means any individual or individuals, including an agent, servant or employee of a merchant where the facts of the situation so require;

(6) "Conceal" means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation;

(7) "Full retail value" means the merchant's stated or advertised price of the merchandise;

(8) "Premises of a store or retail mercantile establishment" means and includes but is not limited to, the retail mercantile establishment; any common use areas in shopping centers and all parking areas set aside by a merchant or on behalf of a merchant for the parking of vehicles for the convenience of the patrons of such retail mercantile establishment;

(9) "Under-ring" means to cause the cash register or other sale recording device to reflect less than the full retail value of the merchandise;

(10) "Antishoplifting or inventory control device countermeasure" means any item or device which is designed, manufactured, modified, or altered to defeat any antishoplifting or inventory control device;

(11) "Organized retail theft enterprise" means any association of two or more persons who engage in the conduct of or are associated for the purpose of effectuating the transfer or sale of shoplifted merchandise.

b. Shoplifting. Shoplifting shall consist of any one or more of the following acts:

(1) For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.

(2) For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.

(3) For any person purposely to alter, transfer or remove any label, price tag or marking indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment and to attempt to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or some part of the value thereof.

(4) For any person purposely to transfer any merchandise displayed, held, stored or offered for sale by any store or other retail merchandise establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the retail value thereof.

(5) For any person purposely to under-ring with the intention of depriving the merchant of the full retail value thereof.

(6) For any person purposely to remove a shopping cart from the premises of a store or other retail mercantile establishment without the consent of the merchant given at the time of such removal with the intention of permanently depriving the merchant of the possession, use or benefit of such cart.

d. Presumptions. Any person purposely concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.

e. A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover the merchandise by taking the person into custody, may, for the purpose of attempting to effect recovery thereof, take the person into custody and detain him in a reasonable manner for not more than a reasonable time, and the taking into custody by a law enforcement officer or special officer or merchant shall not render such person criminally or civilly liable in any manner or to any extent whatsoever.

Any law enforcement officer may arrest without warrant any person he has probable cause for believing has committed the offense of shoplifting as defined in this section.

A merchant who causes the arrest of a person for shoplifting, as provided for in this section, shall not be criminally or civilly liable in any manner or to any extent whatsoever where the merchant has probable cause for believing that the person arrested committed the offense of shoplifting.

f. Any person who possesses or uses any antishoplifting or inventory control device countermeasure within any store or other retail mercantile establishment is guilty of a disorderly persons offense.