New Jersey Criminal Defense Attorney Blog

I frequently appear in courts across New Jersey to defend individuals against charges of assault. Unfortunately, this often involves domestic violence allegations as well. If you have been charged with assault in any New Jersey court, call now for a free consultation.

New Jersey Assault Charges - NJSA 2C:12-1

§ 2C:12-1. Assault

a. Simple assault. A person is guilty of assault if he:

(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or(2) Negligently causes bodily injury to another with a deadly weapon; or
(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.

Simple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense.

b. Aggravated assault. A person is guilty of aggravated assault if he:

(1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury; or

(2) Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

(3) Recklessly causes bodily injury to another with a deadly weapon; or

(4) Knowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, as defined in section 2C:39-1 f., at or in the direction of another, whether or not the actor believes it to be loaded; or

(5) Commits a simple assault as defined in subsection a. (1), (2) or (3) of this section upon:

(a) Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer; or

(b) Any paid or volunteer fireman acting in the performance of his duties while in uniform or otherwise clearly identifiable as being engaged in the performance of the duties of a fireman; or

(c) Any person engaged in emergency first-aid or medical services acting in the performance of his duties while in uniform or otherwise clearly identifiable as being engaged in the performance of emergency first-aid or medical services; or

(d) Any school board member, school administrator, teacher, school bus driver or other employee of a public or nonpublic school or school board while clearly identifiable as being engaged in the performance of his duties or because of his status as a member or employee of a public or nonpublic school or school board or any school bus driver employed by an operator under contract to a public or nonpublic school or school board while clearly identifiable as being engaged in the performance of his duties or because of his status as a school bus driver; or

(e) Any employee of the Division of Youth and Family Services while clearly identifiable as being engaged in the performance of his duties or because of his status as an employee of the division; or

(f) Any justice of the Supreme Court, judge of the Superior Court, judge of the Tax Court or municipal judge while clearly identifiable as being engaged in the performance of judicial duties or because of his status as a member of the judiciary; or

(g) Any operator of a motorbus or the operator's supervisor or any employee of a rail passenger service while clearly identifiable as being engaged in the performance of his duties or because of his status as an operator of a motorbus or as the operator's supervisor or as an employee of a rail passenger service; or

(h) Any Department of Corrections employee, county corrections officer, juvenile corrections officer, State juvenile facility employee, juvenile detention staff member, juvenile detention officer, probation officer or any sheriff, undersheriff, or sheriff's officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority; or

(i) Any employee, including any person employed under contract, of a utility company as defined in section 2 of P.L.1971, c.224 (C.2A:42-86) or a cable television company subject to the provisions of the "Cable Television Act," P.L.1972, c.186 (C.48:5A-1 et seq.) while clearly identifiable as being engaged in the performance of his duties in regard to connecting, disconnecting or repairing or attempting to connect, disconnect or repair any gas, electric or water utility, or cable television or telecommunication service; or

(6) Causes bodily injury to another person while fleeing or attempting to elude a law enforcement officer in violation of subsection b. of N.J.S.2C:29-2 or while operating a motor vehicle in violation of subsection c. of N.J.S.2C:20-10. Notwithstanding any other provision of law to the contrary, a person shall be strictly liable for a violation of this subsection upon proof of a violation of subsection b. of N.J.S.2C:29-2 or while operating a motor vehicle in violation of subsection c. of N.J.S.2C:20-10 which resulted in bodily injury to another person; or

(7) Attempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury; or

(8) Causes bodily injury by knowingly or purposely starting a fire or causing an explosion in violation of N.J.S.2C:17-1 which results in bodily injury to any emergency services personnel involved in fire suppression activities, rendering emergency medical services resulting from the fire or explosion or rescue operations, or rendering any necessary assistance at the scene of the fire or explosion, including any bodily injury sustained while responding to the scene of a reported fire or explosion. For purposes of this subsection, "emergency services personnel" shall include, but not be limited to, any paid or volunteer fireman, any person engaged in emergency first-aid or medical services and any law enforcement officer. Notwithstanding any other provision of law to the contrary, a person shall be strictly liable for a violation of this paragraph upon proof of a violation of N.J.S.2C:17-1 which resulted in bodily injury to any emergency services personnel; or

(9) Knowingly, under circumstances manifesting extreme indifference to the value of human life, points or displays a firearm, as defined in subsection f. of N.J.S.2C:39-1, at or in the direction of a law enforcement officer; or

(10) Knowingly points, displays or uses an imitation firearm, as defined in subsection f. of N.J.S.2C:39-1, at or in the direction of a law enforcement officer with the purpose to intimidate, threaten or attempt to put the officer in fear of bodily injury or for any unlawful purpose; or

(11) Uses or activates a laser sighting system or device, or a system or device which, in the manner used, would cause a reasonable person to believe that it is a laser sighting system or device, against a law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority. As used in this paragraph, "laser sighting system or device" means any system or device that is integrated with or affixed to a firearm and emits a laser light beam that is used to assist in the sight alignment or aiming of the firearm.

Aggravated assault under subsections b.(1) and b.(6) is a crime of the second degree; under subsections b.(2), b.(7), b.(9) and b.(10) is a crime of the third degree; under subsections b.(3) and b.(4) is a crime of the fourth degree; and under subsection b.(5) is a crime of the third degree if the victim suffers bodily injury, otherwise it is a crime of the fourth degree. Aggravated assault under subsection b.(8) is a crime of the third degree if the victim suffers bodily injury; if the victim suffers significant bodily injury or serious bodily injury it is a crime of the second degree. Aggravated assault under subsection b.(11) is a crime of the third degree.

c. (1) A person is guilty of assault by auto or vessel when the person drives a vehicle or vessel recklessly and causes either serious bodily injury or bodily injury to another. Assault by auto or vessel is a crime of the fourth degree if serious bodily injury results and is a disorderly persons offense if bodily injury results.

(2) Assault by auto or vessel is a crime of the third degree if the person drives the vehicle while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and serious bodily injury results and is a crime of the fourth degree if the person drives the vehicle while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and bodily injury results.

(3) Assault by auto or vessel is a crime of the second degree if serious bodily injury results from the defendant operating the auto or vessel while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) while:

(a) on any school 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 such school property;

(b) driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

(c) driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

Assault by auto or vessel is a crime of the third degree if bodily injury results from the defendant operating the auto or vessel in violation of this paragraph.

A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under subparagraph (a) of paragraph (3) of this section.

It shall be no defense to a prosecution for a violation of subparagraph (a) or (b) of paragraph (3) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing. Nor shall it be a defense to a prosecution under subparagraph (a) or (b) of paragraph (3) of this subsection that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.

As used in this section, "vessel" means a means of conveyance for travel on water and propelled otherwise than by muscular power.

d. A person who is employed by a facility as defined in section 2 of P.L.1977, c.239 (C.52:27G-2) who commits a simple assault as defined in paragraph (1) or (2) of subsection a. of this section upon an institutionalized elderly person as defined in section 2 of P.L.1977, c.239 (C.52:27G-2) is guilty of a crime of the fourth degree.

e. (Deleted by amendment, P.L.2001, c.443).

f. A person who commits a simple assault as defined in paragraph (1), (2) or (3) of subsection a. of this section in the presence of a child under 16 years of age at a school or community sponsored youth sports event is guilty of a crime of the fourth degree. The defendant shall be strictly liable upon proof that the offense occurred, in fact, in the presence of a child under 16 years of age. It shall not be a defense that the defendant did not know that the child was present or reasonably believed that the child was 16 years of age or older. The provisions of this subsection shall not be construed to create any liability on the part of a participant in a youth sports event or to abrogate any immunity or defense available to a participant in a youth sports event. As used in this act, "school or community sponsored youth sports event" means a competition, practice or instructional event involving one or more interscholastic sports teams or youth sports teams organized pursuant to a nonprofit or similar charter or which are member teams in a youth league organized by or affiliated with a county or municipal recreation department and shall not include collegiate, semi-professional or professional sporting events.

History:

L. 1978, c. 95; amended 1979, c. 178, § 22; 1981, c. 290, § 14; 1983, c. 101, § 1; 1985, c. 97, § 2; 1985, c. 444, § 1; 1990, c. 87, § 1; 1991, c. 237, § 2; 1991, c. 341, § 2; 1993, c. 219, § 2; 1995, c. 6, § 1; 1995, c. 181, § 1; 1995, c. 211, § 1; 1995, c. 307, § 2; 1997, c. 42, § 1; 1997, c. 119, § 1; 1999, c. 77, § 1, eff. April 30, 1999; 1999, c. 185, § 2, eff. Dec. 1, 1999; 1999, c. 281, § 1, eff. Feb. 1, 2000; 1999, c. 381, § 1, eff. Jan. 14, 2000; 2001, c. 215, § 1, eff. Aug. 20, 2001; 2001, c. 443, § 2, eff. Jan. 11, 2002; 2002, c. 53, § 1, eff. Aug. 3, 2002; 2003, c. 218, § 1, eff. Jan. 9, 2004; 2005, c. 2, § 1, eff. Jan. 19, 2005; 2006, c. 78, § 2, eff. Aug. 2, 2006.

Amendment Note:

2006 amendment, by Chapter 78, in b.(5)(d), inserted "public or nonpublic school or" three times preceding "school board"; and substituted "(i)" for "I" as the designation for the subparagraph following b.(5)(h).

Effective Dates:

Section 6 of L. 1999, c. 185 provides: "This act shall take effect on the first day of the fourth month after enactment." Chapter 185, L. 1999, was approved on August 19, 1999.

Section 2 of L. 1999, c. 281 provides: "This act shall take effect on the first day of the second month following enactment." Chapter 281, L. 1999, was approved on December 20, 1999.

Continue reading "New Jersey Assault Charge Lawyer - NJSA 2C:12-1" »

Last week, Noel Montes Lopez pleaded guilty to 1st-degree aggravated manslaughter before Judge Thomas Scully in Monmouth County Superior Court. The charge stems from a 2009 incident where the defendant strangled and beat his girlfriend to death after an argument in Long Branch. The victim was 33 year old Yesenia Hernandez Osorio.

Lopez also admitted to being in the country illegally and will therefore almost certainly be deported after serving his prison sentence. Prosecutors are expected to ask for a 12-year sentence. Under the No Early Release Act, Lopez will have to serve 85% of his time before he becomes eligible for parole.

Red Bank Municipal Court

Location: Municipal Building-First Floor
90 Monmouth Street
Red Bank, NJ 07701

Phone: (732)530-2716 Hours: M-F: 8:00AM--4:00PM
Fax: (732)530-7186

Court sessions in Red Bank are held on Thursdays at 8:30 a.m. The Judge is the Hon. William Himelman. The court administrator is Frances Pastoriza. Red Bank Police issue a good deal of parking tickets, along with speeding and other traffic violations. Some DWI and criminal arrests are also made in Red Bank.

Red Bank is located on the banks of eastern Monmouth County's Navesink River. The town spans only about 1.75 square miles and is about five miles inland from the Atlantic Ocean. Roughly 11,844 people live in town. While once part of Shrewsbury Township, Red Bank was officially incorporated in the year 1908. The name "Red Bank" comes from the clay banks of the river that serves as one of its township borders.

Bail has been set at $3,000,000 for George Calleia, a Holmdel businessman who recently won appeal of his 2008 murder conviction. New Jersey Superior Court Judge Ira E. Kreizman also demanded that the defendant turn over his passport.

Calleia was convicted of murdering his wife, Susan, in 2005. Her remains were found in an SUV at the NJ PAC in Holmdel. Last week, the NJ Appellate Division overturned Calleia's conviction, holding that evidence admitted under the "state of mind" exception to the hearsay rule was improper. The evidence pertained to the victim's statements that she intended to leave the defendant. Calleia faces life in prison if convicted of murder at his next trial.

26-year-old Rainer O. Calderon of Colts Neck was arrested and charged on June 10 of being the leader of an illicit pharmaceutical drug ring. Colts Neck Police, along with members of the U.S. Food and Drug Administration Office of Criminal Investigations raided Calderon's home, leading to his arrest.

Colts Neck Police have charged Calderon with forgery, leading a narcotics-trafficking network, and obtaining a controlled dangerous substance by fraud. He had also been charged by Freehold Township Police with forgery, receiving stolen property and related crimes.

During a search of Calderon's home, police confiscated $331, Calderon's car, marijuana, a hypodermic syringe, medical records, prescription blanks and documents related to the drug ring.

Police have also arrested two other individuals, who police obtained oxycodone from various New Jersey pharmacies illegally and passed the pills along to Calderon.

Calderon is lodged in the Monmouth County Jail, Freehold Township, in lieu of $410,000 with no "ten percent" option.

On 6/16/10 Highlands, NJ police were dispatched to Barberie Avenue to a report of a burglary in progress. Police later arrested Michael A. Smith, 21, of the same street for the crime.

Smith is accused of 5 counts of both burglary and theft. After searching his house, police uncovered car radios, GPS devices, cellular phones and other electronics equipment. Smith was lodged in the Monmouth County Jail, Freehold Township, in lieu of $15,000 bail. If convicted, Smith could face up to 5 years in prison for each offense.

Seaside Park Municipal Court

Location: 1 Municipal Plaza
Seaside Park, NJ 08752-1896

Phone: (732) 793-5116

The judge in Seaside Park Court is the Honorable Frank S. Salzer, J.M.C. The prosecutor is Joseph Coronato, Esq. The court administrator is Kathy Smith. Seaside police issue a lot of traffic and speeding tickets. A good deal of DWI and drug arrests are also made, especially in the summer months.

State v. Roy F. Friedman, ? N.J. Super. ?, 2010 N.J. Super. LEXIS 87 (May 27, 2010) - "This appeal presents a narrow question that has not yet been addressed by a published New Jersey decision: whether a defendant who is sentenced to consecutive sentences subject to NERA must serve consecutive periods of parole supervision, or whether the multiple parole supervision periods should run concurrently commencing upon release.... Given the penal statute which we construe and the requirement that the period of parole supervision commence 'immediately' after release from prison, we hold that the mandatory periods of parole supervision on consecutive NERA sentences must be served concurrently. Accordingly, we reverse the judgment to the extent it provides otherwise and remand for correction of the judgment."

State v. Danny Mai, ? N.J. ?, 2010 N.J. LEXIS 393 (May 6, 2010) - Appellate Division judgment reversed, conviction reinstated. "Responding to an early morning hours radio call of a 'man with a gun,' police officers approached a double-parked van containing five occupants; the van also was surrounded by a half-dozen young men.

Based on that obvious traffic violation, the police detained the van. Fearing for his and his fellow officers' safety, one of the police officers opened the van's passenger-side sliding side door as a protective measure before actually ordering the passengers to exit the van. In so doing, van was consistent with the description of a 'man-with-a-gun' earlier broadcast over the radio. That passenger was told to step out of the van and, as he did as instructed, another police officer observed a firearm on the floor of the van where the passenger was seated.

A loaded weapon was retrieved and the passenger was arrested; a search of the passenger revealed a gun holster and a second loaded ammunition magazine fitting the retrieved weapon.... The standard for determining whether, in the context of a traffic violation, a police officer may order that a passenger alight from a vehicle previously was set forth in State v. Smith, 134 N.J. 599 (1994)[i.e., that] 'that an officer must be able to point to specific and articulable facts that would warrant heightened caution to justify ordering the occupants to step out of a vehicle detained for a traffic violation.'... In the realm of defining reasonable searches and seizures, no meaningful or relevant difference exists between the grant of authority to order an occupant of a vehicle to exit the vehicle and the authority to open the door as part of issuing that lawful order.

Plain logic demands that the principles that govern whether a passenger of a vehicle lawfully can be ordered out of the vehicle must apply with equal force to whether a police officer is entitled, as a corollary and reasonable safety measure, to open the door as part of issuing a proper order to exit.... We therefore hold that, in the aggregate, there was sufficient credible evidence presented in the suppression hearing to conclude that the 'facts in the totality of the circumstances ... create[d] in a police officer a heightened awareness of danger that ... warrant[ed] an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.' Smith, supra, 134 N.J. at 618. Those facts likewise justified the objectively reasonable belief that, as a precautionary measure, the door to the vehicle needed to be opened by the police. In those circumstances, both opening the door and ordering the passengers out of the vehicle were proper and lawful."

State v. Riley K. Jefferson, ? N.J. Super. ?, 2010 N.J. Super. LEXIS 87 (May 21, 2010) - Denial of suppression motion affirmed in part, reversed in part. "The trial court began its decision by concluding that the citizen informant provided a reliable tip, and that the tip established a reasonable basis for the police to investigate the vehicle identified and defendant, who fit the description provided and, minutes later, was at the address where the police found the vehicle. We agree with these conclusions....

We hold, however, that the police entered defendant's home when Sergeant Smith wedged herself in the doorway, and that they needed either a warrant or an exception from the warrant requirement of the federal and State constitutions to do so.... We disagree with the trial court's conclusion that Sergeant Smith acted reasonably, meaning constitutionally, when she wedged herself in the front doorway to prevent defendant from closing it. The trial court found that the common hallway of the multi-family house was not open to the public, and the police were not privileged to enter that hallway. Contrary to the trial court's implicit conclusion, reasonable suspicion to detain and question defendant pursuant to Terry, if the police had encountered him in a place where they had a right to be, did not authorize the police to enter his home for that purpose in the absence of consent or exigent circumstances....

[D]efendant's possible willingness to speak to the police from inside his house did not translate into permission for them to enter. Defendant gave no indication that he had invited the police into the hallway, or into any part of his home. We reject the State's argument that Sergeant Smith could reasonably believe that she was permitted to 'move to the threshold to view [defendant's] entire body and ascertain that defendant was not armed.' In fact, she inserted herself into the doorway while defendant was peering from behind it, thus expressing his choice to exclude the police from his home....

In this case, the police had no warrant and made no showing of an exception from the warrant requirement when Sergeant Smith partially entered defendant's residence to stop him from closing his front door. That conduct of the police infringed upon the 'firm line at the entrance to the house' when applying the protections of the Fourth Amendment. [Citations omitted]."

State v. Steven Bloom, unpublished opinion, App. Div. Docket No. A-0076-09T4 (May 28, 2010) - Order suppressing evidence affirmed. "In this case, the State first argues that no search of defendant's premises was intended, and that the police were present there as lawful social guests or business invitees.... [I]n the present case, the judge accepted as credible defendant's testimony that, although Nugnes's conduct may have appeared to be merely investigatory, the other two officers pushed past defendant in an obvious attempt to view the entire first floor of the condominium unit.

Thus, the evidence as supported by the record and accepted by the motion judge establishes that the police sought to do more than enter to continue their investigation [and] the State was required to demonstrate that an exception to the warrant requirement validated their warrantless search of defendant's dwelling....

Even if we assume that defendant invited or permitted the police to enter into the hall of his condominium, we find no legal justification for their further intrusion into the living portion of the unit -- an area for which the judge found consent to enter was not provided. Such an intrusion was not required in order for the police to complete their announced mission of investigating a noise complaint, and it could not have been reasonably contemplated by defendant when he allegedly permitted entry into the hall....

The difficulty with [the State's arguments regarding plain view of various items including hypodermic needles and a Glock pistol] is [that they are] premised on the presumption that the police's presence in defendant's living room was legal. The motion judge found that it was not, and we find that conclusion to be factually and legally supported. Moreover, the State's view requires acceptance of the State's position that defendant led the police into his living room and complied with Nugnes's request that he seat himself on the couch. Defendant denied that this version of events was correct, and the trial judge credited defendant's testimony."

State v. Angelo R. Rodriguez, Jr., unpublished opinion, App. Div. Docket No. A-5013-07T4 (May 26, 2010) - Termination of defendant's participation affirmed, but judgment of conviction reversed. "Defendant also argues that the State violated the rules governing PTI admission when it required him to enter a guilty plea.

We agree. Rule 3:28, Guideline 4, provides in pertinent part that, '[e]nrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilty.'...

Here, the State erred by requiring defendant to plead guilty to count three ... '[i]n exchange' for the prosecutor's agreement to allow defendant to seek admission to PTI. In our judgment, defendant should not be bound to a plea entered into contravention of the PTI guidelines. Accordingly, the judgment of conviction must be vacated and defendant should be given the opportunity to withdraw the plea."

State v. Terrell M. Lucas, unpublished opinion, App. Div. Docket No. A-5620-07T4 (May 28, 2010) - Conviction reversed, case remanded. "The central issue in this appeal is whether defendant has the right to apply to [PTI], not whether he would have been admitted to PTI.... At the plea proceeding, the parties focused on whether defendant would have been admitted into PTI, not whether he had the right to apply.... [T]he Criminal Division Manager must allow a defendant to submit an application to PTI and must evaluate the application. Moreover, the PTI Guidelines provide that all defendants must be permitted to apply.... Defendant was mistakenly deprived of the opportunity to apply for PTI. We reverse and remand to permit defendant to submit his PTI application for consideration."

State v. Darryl Johnson, unpublished opinion, App. Div. Docket No. A-5201-07T4 (May 12, 2010) - Denial of PCR reversed, case remanded for evidentiary hearing. "[T]he trial court entered an order supported by an oral decision denying the petition without an evidentiary hearing, determining that the issue whether defendant should have additional jail or gap-time credits applied against the NERA portion of his sentence rested with the State Parole Board, not the trial court....

Defendant did not argue in the trial court, and does not argue on appeal, that he is entitled to have the 212 days of gap-time credit applied against the base term on his sentence on count one; nor that he did not receive 635 days of jail credit against the sentences imposed on the Morris County convictions. Rather, defendant contends that trial counsel misrepresented to him that all of those credits would be applied against the period of parole ineligibility on count one, thereby reducing his overall period of parole ineligibility by approximately three years. Defendant asserts that had he known those credits could not be used to reduce the period of parole ineligibility on count one he would not have pled guilty to the NERA offense....

Here, the trial court did not address defendant's argument that trial counsel had misrepresented the amount of jail and gap-time credits that were to be applied against the NERA period of parole ineligibility imposed on count one.... Because the trial court did not address that issue and the record does not contain sufficient information to flesh out what information defendant received from his trial counsel, we reverse and remand for the court to conduct an evidentiary hearing."

State v. Mark Goodson, unpublished opinion, App. Div. Docket No. A-1800-08T4 (May 18, 2010) - Denial of PCR reversed, case remanded for evidentiary hearing. "We disagree that trial counsel was ineffective with regard to defendant's sentence and find that the issue is procedurally barred.

However, we agree that the judge should have granted an evidentiary hearing regarding the allegation of ineffective assistance with respect to the statement by G.M. that she was willing to testify for the defense. Therefore, we remand the matter for an evidentiary hearing....

Here, the issue regarding the G.M. letter could not be resolved by a review of the trial record and therefore could not have been raised on direct appeal. The G.M. statement on its face establishes that a witness had firsthand information that, if believed by the jury, could exonerate defendant. Therefore, the PCR judge should hold an evidentiary hearing and address the issue on its merits. Trial counsel should give testimony as to his reasons for not calling G.M. We have no view of the merits of defendant's application."

State v. L.A., unpublished opinion, App. Div. Docket No. A-4279-07T4 (May 24, 2010) - Denial of PCR reversed, case remanded for evidentiary hearing. "We concur that a remand is necessary to afford defendant the opportunity for an evidentiary hearing at which his wife will be able to testify, and the PCR judge will be able to assess her credibility, in order to make an informed decision as to whether trial counsel's failure to prepare and call her as a witness did in fact constitute ineffective assistance of counsel....

Here, the PCR judge found that defendant had satisfied the first prong of the Strickland test, namely that counsel was 'deficient' in failing to call defendant's wife as a witness because her testimony 'would have been helpful to put the victim's credibility in issue....' Notwithstanding this finding, the judge concluded that counsel's deficient performance did not prejudice defendant. However, as noted, in addressing this second prong, the PCR judge focused on allegations other than counsel's failure to call defendant's wife as a witness.... We are satisfied that the PCR judge erred in failing to find that defendant had satisfied the second prong of the test for establishing a prima facie claim of ineffective assistance of counsel. This error, in turn, led to the improper denial of an evidentiary hearing."

State v. Roger Fuller, unpublished opinion, App. Div. Docket No. A-2393-09T4 (May 18, 2010) - Order granting PCR affirmed. "At a minimum, a trial attorney must be assured that questions he will be asking his client are not misunderstood or that language incorporated in a question is not imprecise that even the most sophisticated and experienced witness would fail to comprehend the import or implications of a particular question.

Here, counsel's inquiry as to whether defendant was 'ever' a drug dealer covered the spectrum of whether defendant had, at any time, been accused of or been convicted of drug dealing. Defendant clearly considered within the scope of the question the fact that he had been accused of being a drug dealer as a juvenile, and he responded in kind. Adequate preparation, a hallmark of effective counsel, was lacking.... The State claims that counsel's strategy was sound given the information that was available to him upon review of defendant's criminal history and the absence of any juvenile record.

While that may be true to a point, it is a sine qua non of effective and appropriate trial preparation for counsel to review such history with defendant, prior to trial, to both verify the information as well as ascertain whether the history was accurate as reported."

State v. Hoang Van Nguyen, unpublished opinion, App. Div. Docket No. A-0610-07T4 (May 14, 2010) - Conviction reversed, guilty plea vacated, case remanded for new trial. "Defendants and the State negotiated a plea agreement....

[W]ith the assistance of a Vietnamese interpreter, the trial judge advised defendants of their rights by questioning the three simultaneously regarding their understanding of those rights and the consequences of entering a guilty plea.... [W]e conclude the failure to make an individual inquiry of each defendant's knowing and voluntary waiver of his rights upon entry of the guilty plea violates procedural due process....

[S]everal problems are presented by the court's simultaneous inquiry of all defendants. Consequently, we conclude the plea procedure employed by the trial court did not ensure defendant made an informed and voluntary decision to plead guilty.... First, the court's statements strongly suggested all three defendants must act in unison.... Second, the questioning procedure eliciting one group response, that is, one 'yes' was for all three defendants, makes it impossible to satisfactorily confirm defendant's responses were independent of the responses of his co-defendants....

Finally, because defendant is foreign-born and not proficient in English, the court's obligation to fully explore his understanding of his rights, the nature of the charges and consequences of entering a guilty plea, and to be certain defendant's waiver was voluntary, is heightened.... Even when the court specifically addressed defendant, it neglected to explore the incongruity of his answers....

We reject the State's argument suggesting the court's individual examination of defendant when accepting the factual basis for his guilty plea sufficiently satisfied Rule 3:9-2. We conclude this examination did not save the otherwise defective procedure, which fell short of affording defendant adequate notice of his rights and discerning his voluntary waiver."

DYFS v. J.L./Matter of A.L., unpublished opinion, App. Div. Docket No. A-5503-08T3 (May 12, 2010) - "In this appeal of a judgment terminating parental rights, we vacate and remand because the evidence failed to dispel uncertainties about the foster parents' willingness to adopt and because the judge mistakenly rejected, as a matter of law, the opinion of defendant's expert that the status quo was in the child's better interest than termination....

Having closely examined the record in light of the arguments posed, we find no reason to question the judge's findings on the first two prongs and that part of the third prong that required proof of the Division's reasonable efforts to ameliorate the reasons for the child's placement outside the home....

Because the judge felt bound to limit his findings to that which would provide a permanent solution, even at the potential cost of the child's best interests, we must reject the judge's determination on the fourth prong.... We also conclude that the judgment cannot rest on the judge's findings on the fourth prong because the evidence regarding adoption was too inessential to meet the requirement that the prong be proven by clear and convincing evidence.

We discern from the judge's decision that he concluded termination would not do more harm than good because he expected that the aunt and uncle would adopt Anna. The record, however, reveals uncertainty about the commitment of the aunt and uncle to adopt.... [A]dditional proceedings should at least include testimony from the aunt and uncle, as well as any other witnesses who might possess relevant knowledge on the question of adoption and, if the alleged commitment of the aunt and uncle to adopt is conditional, whether those conditions can or will be met.

The judge should also permit the presentation of other evidence that may provide an understanding of what has occurred in the interim with Anna, her current relationship with her foster parents, and her current relationship with defendant, and whether or to what extent defendant has continued to make progress."

State v. Craig E. Young, unpublished opinion, App. Div. Docket No. A-0004-08T4 (May 4, 2010) - Conviction reversed for multiple evidentiary errors, primarily concerning the identity of the confidential informant that provided the original tip. "The identity of the confidential informant was not disclosed by the State prior to trial, and defense counsel did not move for disclosure, believing that he lacked grounds for doing so. However, during the prosecutor's opening, the prosecutor made statements that established that the confidential informant was R.B....

The present case is unusual, in that the State volunteered the name of the confidential informant at trial, thereby suggesting that it no longer sought to protect a continuous flow of information from R.B.... If, as it appears, the State did not seek to protect R.B.'s identity as an informant, then it is difficult to justify its failure to name R.B. as its confidential informant when provided with his exculpatory statement by defense counsel in discovery. For in that circumstance, Roviaro's balance of 'the public interest in protecting the flow of information against the individual's right to prepare his defense,' [citation omitted], would have tipped, decidedly, in defendant's favor. Indeed, the State's silence at that time was contrary to 'the need for a truthful verdict' [citation omitted] and increased the risk of false testimony at trial....

Indeed, the State's timing of its disclosure appears to have been purposefully calculated to result in a proceeding that was fundamentally unfair to the defendant. In these circumstances, either a mistrial or a substantial continuance was warranted."

"Defendant argues next that his constitutional right to confrontation was violated when police witnesses were permitted to recount out-of-court statements of confidential informant R.B. that incriminated defendant.... On cross-examination, Detective McLaughlin disclosed that he had asked the informant what he thought McLaughlin would be able to purchase, and the informant 'indicated that it could be an eight ball.'... [O]n the direct examination of Detective Paul Skill, the prosecutor elicited testimony that: 'We received information from a confidential informant that stated that a person would be coming to a location to sell drugs;' 'the location for the sale was 3124 U.S. Route 9 in the Rio Grande section of Middle Township;' and the drugs would be sold from 'Apartment number 9.' Further, Skill described the plan: 'Detective McLaughlin was going to go up to the apartment, meet with the confidential informant and wait for the person to arrive so that he could purchase narcotics, an eight ball of cocaine.'... Our review of the record in the present matter satisfies us that a reasonable possibility exists "that the evidence complained of might have contributed to the conviction." [Citations omitted]. We reject any claim that the admission of the hearsay testimony constituted harmless error. A new trial is thus warranted."

"In the present matter, defendant admitted to a history of prior drug sales, while claiming that he had ceased distribution in June 2006, eight months before the transaction at issue and almost two years prior to trial. Arguably, defendant's position opened the door to cross-examination as to whether he had, in fact, reformed and to introduction of impeaching evidence of drug sales occurring after June 2006, even though such evidence consisted of prior bad acts, ordinarily precluded by Rule 404(b).

However, that was not the focus of the State's inquiry. The State offered no admissible proof, other than the evidence surrounding the sale on February 21, 2007, to contradict defendant position that he had ceased his illegal conduct. Its extended cross-examination focused instead solely upon the specifics of defendant's prior illegal drug sales, occurring under circumstances that differed significantly from the sale for which defendant was now being prosecuted. The testimony elicited by the State thus bore no relevance to defendant's guilt....

But here, there was no N.J.R.E. 104 hearing, no evaluation of the proposed testimony in light of Cofield occurred, no proffer was made by the State as to the basis for the admissibility of the evidence of prior crimes pursuant to N.J.R.E. 404(b), and no limiting instruction was given to the jury with respect to its consideration of that evidence. We find these defects also to be sufficient to warrant a new trial."

State v. Ricky Sessoms, ? N.J. Super. ?, 2010 N.J. Super. LEXIS 82 (May 17, 2010) - Order requiring the State to "confirm or deny" the identity of a confidential informant reversed. "The order issued as a result of defendant's submission of an affidavit by A.M., who claimed to be the informant, in support of the motion for disclosure....

In granting defendant's motion for disclosure, the court correctly centered its analysis on N.J.R.E. 516, which authorizes the admission of evidence as to the identity of a confidential informant when 'the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed ...." The court reasoned that because the identity of the informant had been disclosed to defendant, the State was required to 'confirm or deny' it....

The essential question in this case, however, is whether A.M.'s affidavit actually constitutes disclosure within the meaning of the rule such that the State must either confirm or deny his identity.... Because the privilege belongs to the State and not the informant, we cannot agree with the motion judge that a 'disclosure' has occurred within the meaning of the rule. Even if A.M.'s affidavit is entirely legitimate and was offered spontaneously, the disclosure was neither made by the State nor made as a result of circumstances beyond defendant's control. It was made by the alleged informant himself, no doubt at defendant's urging.

Theoretically, there is no longer a need to protect A.M.'s physical safety. But A.M.'s revelation does not advance the other public policy objective behind the privilege, which is to encourage the flow of information to law enforcement about crime.... [Confirmation] would vitiate the privilege. It would place those suspected of being confidential informants in the unfortunate position of being pressured to come forward. Defendants would have a reason to tamper with potential witnesses as well as a mechanism by which they could force the State's hand to compel disclosure."

State in the Interest of D.H., unpublished opinion, App. Div. Docket No. A-1654-08T4 (May 20, 2010) - Adjudication of delinquency reversed. "The trial court ruled that the print screens Detective Kappre received from AFIS [allegedly containing defendant's fingerprints] were admissible under the business records exception to the hearsay rule....

Detective Kappre did not have the requisite knowledge to lay the foundation for the admission of these AFIS records as business records. He had only the barest knowledge of AFIS and could testify only that it used an algorithm to generate a response to a request. The trial court, in a proper exercise of its discretion, admitted Kappre as an expert in fingerprint comparison, and thus he properly expressed the opinion that the latent prints removed from the GPS box matched the prints on the screen he received from AFIS. He had no basis, however, upon which to testify that the enlarged prints he received from AFIS to compare with the latent prints were, in fact, the prints of D.H....

In addition to citing the business records exception to the hearsay rule, the trial court ruled that these documents received from AFIS were admissible as public records under N.J.R.E. 1005. This rule provides, 'The contents of an official record or of a writing authorized to be recorded or filed, if otherwise admissible, may be proved by a copy, certified as correct in accordance with Rule 902, or testified to be correct by a witness who has compared it with the original.' N.J.R.E.
1005 specifies, however, that the document must be 'otherwise admissible.' Here, the AFIS records were not 'otherwise admissible' in the absence of a proper foundation, which Kappre was not equipped to provide."

State v. Kelly, ? N.J. ?, 992 A.2d 776 (2010) - Conviction and Appellate Division affirmance upheld. "In this case, a jury convicted defendant Duane Kelly of committing multiple crimes, including two murders and a robbery. Based on the court's instructions, the jury could only have found that those crimes were committed with the use of a .357 or .38 caliber handgun.

The jury, however, acquitted defendant of both having unlawfully possessed that weapon and having possessed it for the purpose of committing the murders and robbery. The trial court ordered a new trial on the convictions because of a defense witness's perjured testimony.

At the second jury trial, defendant was convicted, as a principal, of the murders and robbery. Defendant claims that the second trial violated the Double Jeopardy Clause of the Fifth Amendment. He essentially argues that by finding him not guilty of possessing the murder weapon, the first jury must have concluded that he was an accomplice and not the shooter....

Defendant's retrial did not offend any principle of collateral estoppel incorporated within the constitutional guarantee against double jeopardy. A review of the jury charge and verdict sheet in the first trial indicates that the acquittals and convictions constituted an inconsistent verdict.... Because the first trial's acquittals did not determine as an ultimate fact that defendant was an accomplice rather than the shooter, it follows that the State was not foreclosed on double jeopardy grounds from proceeding on a theory that he acted alone.

Even if the verdicts were not inconsistent, we would be loath to conclude that the State should be collaterally estopped from proceeding with a new trial necessitated by perjured testimony presented by defendant, however innocently, which tainted the convictions and the acquittals in the first trial."

State v. Germaine A. Handy, ? N.J. Super. ?, 2010 N.J. Super. LEXIS 53 (April 12, 2010) - Conviction reversed, suppression ordered. "The appeal requires us to determine whether evidence found during the search incident to Handy's arrest should have been suppressed because the dispatcher who incorrectly informed the arresting officer that there was an outstanding arrest warrant acted unreasonably under the circumstances, even though the conduct of the arresting officer himself was reasonable....

Rather than a past clerical error, such as neglecting to remove a no-longer valid warrant, the police dispatcher in this case inaccurately reported to the police officer in the field that there was an active warrant for Handy when, in fact, there were significant discrepancies in the spelling of the first name and the date of birth that were not reported at the same time, thereby causing the arrest of the wrong person. Had the police dispatcher reported the discrepancies at the same time as the existence of the warrant, Drogo would have attempted to verify that the warrant was for Handy before, rather than after, the arrest....

The deterrent value of applying the exclusionary rule in this case is, in our view, quite significant.... The police dispatcher is the crucial link between the officer in the field and police headquarters. The officer depends on receiving the correct information from the dispatcher, information such as whether there is or is not an outstanding arrest warrant for the person with whom the officer is then face to face....

In our view, failure to extend the requirement of reasonable conduct to the police dispatcher under the circumstances of this case would have considerable potential to 'dilute' the protections against unreasonable search and seizure guaranteed by the New Jersey Constitution and, we believe, the Fourth Amendment."

State v. Christopher Felix, unpublished opinion, App. Div. Docket No. A-2788-08T4 (April 8, 2010) - Conviction reversed, suppression ordered. "Initially, the encounter with Felix amounted to only a field inquiry, as Holman and then Nanos approached him and began asking him questions....

We discern no illegality or bad faith in the field inquiry here, at least in its initial phases.... However, the initial field inquiry in this case progressed into an investigatory stop under Terry. An investigatory stop, unlike a field inquiry, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest....

Nanos's specific question, asking whether Felix 'had anything illegal on his person,' escalated the field inquiry into a Terry investigatory stop, by insinuating that Felix might have contraband in his possession.... Consequently, the motion judge's determination that Nanos's question to Felix about whether he had anything illegal in his possession was 'innocuous' and consistent with Terry was incorrect as a matter of law....

Nanos asked the question after he had 'confirmed that [Felix] was supposed to be on the property,' according to Nanos's own testimony.... Having satisfied himself that Felix was not trespassing, Nanos offered nothing amounting to a 'particularized suspicion' that would warrant the specific question asked. While it is apparently true that the house was a known 'crack house,' that alone cannot be the basis for the Terry stop of someone who is there with the permission of an owner or resident. He did not know Felix, so there was no testimony that he was a known drug dealer or user.... Nanos never expressed any concern about a weapon, nor was that the purport of his question."