New Jersey Criminal Defense Attorney Blog

State v. Rachel Marshall, unpublished opinion, App. Div. Docket No. A-6306-08T4 (February 23, 2010) - Order denying dismissal of indictment for violation of statute of limitations affirmed in part, reversed in part, remanded for further proceedings.

"On leave granted, we review the trial court's denial of defendant Rachel Marshall's motion to dismiss, as time-barred, the four discrete counts of the instant indictment that charge her individually with crimes.... [T]he trial court held that a ten-year statute of limitations should apply to the racketeering conspiracy charges in Count One.

Such a ten-year time period preceding January 26, 2009 would clearly incorporate defendant's alleged defalcations in 2001 concerning the real estate and liquor license transactions and the associated bank deposits. The trial court also found that the same ten-year statute of limitations it deemed applicable to the racketeering conspiracy charge in Count One should also be applied to the underlying substantive charges.... [T]he trial court erred in declaring that a ten-year limitations statute applies to this indictment rather than the five-year ordinary limitations period under N.J.S.A. 2C:1-6b(1).

The ten-year interval described in the definitional portion of the racketeering statute, N.J.S.A. 2C:41-1d(1), is not a statute of limitations. Rather, it is a proximity measure that is part of the definition of an actionable 'pattern of racketeering activity,' requiring at least two acts in furtherance of the conspiracy to be committed within a ten-year time span.... Consequently, a five-year limitations period, rather than a ten-year period, governs this indictment....

These factual issues of timing and abandonment cannot be decided on the present record. A fair and full assessment of defendant's statute-of-limitations defense as to Count One must await the development of the facts at trial.... We reach a different conclusion as to the three substantive counts of the indictment....

We discern no reason why the normal limitations principles governing substantive crimes should not pertain here. Under those principles, as enumerated in N.J.S.A. 2C:1-6b(1), defendant cannot be charged with substantive crimes more than five years after their alleged occurrence, absent a tolling argument or some other exception not invoked by the State here.... Those allegations, in essence, hearken back to defendant's actions in 2001 and do not allege on her part any new acts within the five-year statutory period." (Michael A. Robbins)
http://www.judiciary.state.nj.us/opinions/a6306-08.pdf

In this recent criminal appeal, the defendant's conviction was reversed because his defense attorney failed to request a Wade hearing and inflammatory comments by the prosecutor to the jury.

State v. Eddie Valentine, unpublished opinion, App. Div. Docket No. A-4986-06T4 (February 2, 2010) - Conviction reversed. "We reverse the conviction and order a new trial due to the cumulative effect of the compounding missteps that occurred in the Law Division that appreciably erode our confidence in the jury's verdict.

Significantly, because this case turned primarily upon the strength of the identification of defendant by the victim, we have reservations about the failure of defendant's trial attorney to press for and obtain a Wade hearing. Although defendant did not testify in his own defense at trial, he presented an alibi defense and challenged the State's claim that he was present at the time of the robbery.

These circumstances, along with multiple potentially problematic identification procedures employed by the police should have triggered the request for such a hearing by defense counsel, unless there was a reasonable strategic reason not to do so.

Given our uncertainty as to whether defendant was deprived of fundamental tools necessary to foster an adequate defense, in addition to our apprehension that the trial court may have unintentionally misled the jury during deliberations through an uncorrected slip of the tongue, along with certain inflammatory comments of the prosecutor, we reverse and remand for a new trial." (Brian O'Reilly, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a4986-06.pdf

State v. Fareed M. Gandhi, ? N.J. ?, 2010 N.J. LEXIS 147 (February 23, 2010) - Conviction for third degree stalking affirmed. "The anti-stalking statute that criminalized defendant's actions provided that a person is guilty of stalking 'if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of his immediate family or to fear the death of himself or a member of his immediate family.'

N.J.S.A. 2C:12-10(b).... The Appellate Division, in an unpublished opinion, agreed with defendant's argument that a conviction for stalking requires a showing of defendant's purpose or knowledge of the impact of his behavior on his victim and, further, requires a showing that the conduct was repeated.

However, the Appellate Division held that the trial court's instruction to the jury, which tracked the model jury charge for stalking, satisfactorily expressed those requirements.... [B]ased on the statutory language and the history to the statutory offense of stalking, we do not discern a legislative intent to restrict the applicability of the anti-stalking statute to a stalker-defendant who purposefully or knowingly intended that his course of conduct would cause a reasonable victim to fear bodily injury or death.

Rather the plain language of the statutory offense, reasonably read, prohibits a defendant from purposefully or knowingly engaging in a course of conduct, as defined in N.J.S.A. 2C:12-10(a)(1), that would cause such fear in an objectively reasonable person. A statute's culpability requirement generally applies to all elements of a crime unless a contrary intent may be discerned. N.J.S.A. 2C:2-2(c)(1). Here we find such a contrary intent.

We find that the Legislature intended to cast a wide net of protection for stalking victims by broadly prohibiting and punishing persistent, unwanted, and frightening behaviors.... We hold that the statutory offense reaches and punishes one who engages in a course of stalking conduct even if that person is operating under the motivation of an obsessed and disturbed love that purportedly obscures appreciation of the terror that his or her conduct would reasonably cause to the victimized person. Defendant's claim of error in the jury charge given by the trial court is therefore rejected." (Warren S. Hecht; Michael J. Sullivan for amicus curiae ACDL-NJ)
http://www.judiciary.state.nj.us/opinions/supreme/A10108StatevFareedGandhi.pdf

State v. Tyrone Emmons, unpublished opinion, App. Div. Docket No. A-6544-06T4 (January 7, 2010) - Convictions reversed. "We are satisfied that under the circumstances presented here, defendant's constitutional right to confront the witnesses against him was violated when Christofferson failed to appear in court as directed and failed to submit to further interrogation by defense counsel on matters affecting her credibility....

Christofferson was the lead witness called by the State and the only witness who directly identified defendant as the shooter.... Impeaching her credibility as a witness was thus a key component of the defense's strategy....

Reversing its earlier erroneous ruling, the court declared that defendant was entitled to question Christofferson about her open charge of shoplifting and have the jury consider whether her testimony in this trial may be 'colored' to curry favor with the State on this seemingly unrelated matter.

An equally relevant area of inquiry was information discovered by the prosecutor's investigator concerning Christofferson's possible use of other names or social security numbers....

Upon discovering Christofferson's absence, an apparent willful disregard of the court's instruction to make herself available for further questioning, the court should have either adjourned the proceedings for a reasonable time to permit defense counsel and/or the prosecutor to locate her or, if she could not be produced for further questions, declare a mistrial." (Robert L. Sloan, A.D.P.D.)
http://www.judiciary.state.nj.us/opinions/a6544-06.pdf

In this recent NJ criminal appeal, the Appellate Division reversed the defendant's conviction after finding that the trial judge improperly questioned the defendant's witnesses. This gave the jury the impression that the judge doubted the witnesses' credibility.

State v. Peter J. O'Brien, ? N.J. ?, 2009 N.J. LEXIS ? (December 29, 2009) - Conviction reversed because the trial court's questioning of defendant and other witnesses ran afoul of State v. Taffaro, 195 N.J. 442, 451 (2008). "At trial, defendant did not contest the fact he killed his parents; his sole defense was diminished capacity, which was to be proved through his testimony about his drug consumption and depression, and that of his expert psychiatrist. During the trial, the trial judge injected himself into the case by questioning witnesses, including defendant and his expert. Because that questioning made it seem as though the judge did not credit the proffered defense, it denied defendant a fair trial.... [A] judge has a right to question witnesses in a criminal trial. But that right is tethered to ensuring the fairness of the proceedings, to expedition, and to the clarification of ambiguities. None of those matters was at issue here. Here, the judge's questioning was gratuitous and evidenced incredulity with respect to defendant's only defense, along with support for the State's witness. As in [State v. Guido, 40 N.J. 191, 208 (1963)], the 'judge's repeated assurances to the jury that he was acting in the interest of justice with no purpose of aiding or hurting the prosecution or the defense' rang hollow and were not sufficient to cure the harm...." See also JURY INSTRUCTIONS. (Jay L. Wilensky, A.D.P.D.)
http://www.judiciary.state.nj.us/opinions/supreme/A-89-08.pdf

In this NJ criminal appeal, the defendant was able to convince the Appellate Division to reverse his conviction by arguing that the trial judge should have continued his trial to allow his witness to testify.

State v. Derek A. Clark, unpublished opinion, App. Div. Docket No. A-1083-08T4 (December 2, 2009) - Conviction reversed. "Defendant testified that four days before the police executed the warrant for the search of his home, a friend of his named Antwan Allison came to his house and told him he needed to put some items in defendant's safe while he went to visit his wife in the hospital....

We conclude that the trial court abused its discretion in denying defendant's application for a one-day continuance of the trial to afford defendant an opportunity to produce Allison as a defense witness, and that defendant made a sufficient showing of prejudice as a result of that denial to require a reversal of his conviction and a retrial....

[D]efense counsel stated at a pretrial conference that the prosecutor's office had taken a video statement from Allison, and the assistant prosecutor did not dispute that Allison's testimony would be supportive of the defense. Under all these circumstances, the trial judge abused his discretion in refusing to grant a one-day continuance of the trial until Monday or even to explore the feasibility of such a continuance or other steps that would have enabled defendant to call Allison as a witness." (John W. Hartmann)
http://www.judiciary.state.nj.us/opinions/a1083-08.pdf

In this recent NJ DWI appeal, the appeals court found that the 344 day delay of the defendant's trial violated his right to a speedy trial.

State v. Christos E. Tsetsekas, ? N.J. Super. ?, 2009 N.J. Super. LEXIS 253 (December 14, 2009) - NJ DWI conviction reversed.

"Under the facts of this case, we conclude the extensive delay in adjudicating this matter, caused by the State's repeated lapses in preparation, infringed upon defendant's due process rights such that his conviction must be reversed and the charge dismissed....

Here, the 344 day dispositional period is more than five times the [ordinary 60-day guideline for DWI cases], and ... the delays were numerous, mostly avoidable and largely unexplained.... The weight of the delay resulting from the reoccurring unavailability of the State Troopers, despite information that their appearance was required, falls on the shoulders of the prosecutor.

The State must be responsible to produce its witnesses when trial is called. We also consider significant the fact that the State did not discover its witnesses' unavailability until the trial date, rather than securing their appearance ahead of time....

The repeated delays and unnecessary appearances due to the State's ill-preparedness, which caused disruption of defendant's everyday activities, the consumption of time and money, and emotional anxiety and uncertainty, add up to more than 'minimal' prejudice to defendant." (Thomas S. Doerr)
http://www.judiciary.state.nj.us/opinions/a1832-08.pdf

State v. Dana Rone, ? N.J. Super. ?, 2009 N.J. Super. LEXIS 250 (December 9, 2009) - Conviction for obstruction of justice and forfeiture of public office affirmed. "The first question, analytically, is whether defendant's conviction ... touched on her position as a member of the City Council....

Defendant stresses that the record does not contain any findings of dishonesty or untrustworthiness on her part; this, she contends, demonstrates that her actions on the night in question do not touch on her office.

This, however, is not the test enunciated by the McCann [167 N.J. 311 (2001)] Court; an offense touches on an individual's office if it flows from that office.... Here, ... , defendant repeatedly announced her public position and pointed to her use of a municipal vehicle.

She used her position to denigrate the university's police force, and dissatisfied with the manner in which the university police were responding to her, summoned what she termed the 'real' police, the City's municipal police. We agree with the trial court that defendant's offense did indeed touch on her position as a member of the city council."

With regard to possible waiver of forfeiture under N.J.S.A. 2C:51-2(e), "We are satisfied that defendant's threshold analysis, that is, that the critical question is whether good cause exists to waive forfeiture, is correct and that the State's position, that the prosecutor's decision to seek waiver is entitled to enhanced deference, is incorrect. That defendant applies the correct analytical framework does not advance her cause, however, for we are equally satisfied that good cause was not demonstrated." (Patricia Bombelyn)
http://www.judiciary.state.nj.us/opinions/a5850-07a6192-07.pdf

In this recent NJ Criminal Appeal, the defense attorney successfully argued that a police search of a vehicle's glove box was illegal.

State v. Ricardo Manuel Ortiz and Arnaldo A. Ortiz, unpublished opinion, App. Div. Docket No. A-4026-08T4 (December 28, 2009) - Suppression of evidence affirmed. Although the stop of the vehicle for having too-darkly tinted windows was justified, and the smell of unburned marijuana gave the police "a well-grounded suspicion that criminal activity was afoot," "we conclude that sufficient credible evidence in the record supports the motion judge's finding that the police lacked exigency to search the glove compartment without first obtaining a warrant, either by telephone or in person....

[A]t all times, the occupants of the SUV complied with police directions, including moving their vehicle some distance from the scene. There was no indication they knew Arnaldo's vehicle contained CDS, nor was any CDS in plain view. Far from presenting any threat to the officers' safety or preservation of the evidence, one of the SUV occupants, a relative of defendants, was actually given the keys to Arnaldo's Honda to take possession of the vehicle upon the defendants' transport to jail....

Equally lacking is any indication that any delay occasioned by obtaining a warrant to search the car would have jeopardized either the officers' safety or the integrity of the evidence.... Koeppen, upon opening the glove compartment and observing the bag, did not believe the bag contained a weapon of any kind. Even if Koeppen lawfully opened the glove compartment, there would have been no justification under the State's theory for further searching the plastic bag, which did not appear on its exterior to contain any weapon therein....

Here, to avoid suppression as fruit of the poisonous automobile search, the State had to prove by clear and convincing evidence that the cocaine in Ricardo's shoe and sock would have inevitably been discovered as a result of a search incident to a lawful warrant or an inventory search prefatory to his incarceration on that charge. Yet the State has offered no evidence -- much less clear and convincing proof -- of the circumstances attending Ricardo's stationhouse search....

Moreover, there is no evidence to suggest that Ricardo would have been lawfully confined to a municipal or county detention facility, that he would not otherwise have been released on his own recognizance, or have posted bail if, in fact, bail had been set on the warrant charge. To the contrary, the record is silent even as to the underlying charge on which Ricardo's outstanding warrant was based." (Marc E. Lieberman)
http://www.judiciary.state.nj.us/opinions/a4026-08.pdf

The NJ criminal defendant in this case was able to win on appeal by arguing that the trial judge erred in handling a question from the jury on accomplice liability.

State v. Timothy Glenn Watts, unpublished opinion, App. Div. Docket No. A-4331-06T4 (December 4, 2009) - First degree robbery conviction reversed. "the State prosecuted Watts solely on an accomplice liability theory, contending that he willingly participated in the crime with Caldwell and that he shared a common purpose and intent with Caldwell to commit an armed robbery against Singh....

However, the State alternatively took the position that, even if Watts did not learn that Caldwell committed this armed robbery until Caldwell returned to the car with the money, by driving Caldwell away from the scene, he could have formed the requisite intent and purpose at that time to make him an accomplice to the armed robbery.... Over defense counsel's objection, the judge answered ... 'yes' to [the question, '[c]an the purpose become apparent at any point of the robbery?']....

The judge's answer to the jurors' questions allowed the jurors to find Watts guilty as an accomplice of armed robbery based upon a finding that Watts' participation in the crime did not begin until Caldwell returned to the car and Watts then first learned that Caldwell committed the robbery. For the reasons we have stated, and as more expansively stated in Whitaker, [402 N.J. Super. 495 (App. Div. 2008), affirmed ? N.J. ?, 2009 N.J. LEXIS (December 7, 2009)], we conclude that in those circumstances, any such conduct by Watts in driving the getaway car could not result in accomplice liability for the crime Caldwell committed by his own conduct. We accordingly reverse Watts' conviction and remand for a new trial on the armed robbery charge." (Michael Confusione, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a4331-06a0552-07.pdf

The Appellate Division recently reversed the criminal conviction of this defendant after holding that the trial court should not have given the jury a charge on intoxication over the objection of defense counsel.

State v. R.T., ? N.J. Super. ?, 2009 N.J. Super. LEXIS 255 (December 17, 2009) - Convictions reversed, dissent by Judge Espinosa. "In this appeal we consider primarily whether defendant's right to a fair trial was prejudiced by the court charging the jury with intoxication as possibly negating an element of the crime, over defendant's objection. Finding error, we reverse and remand for a new trial....

In summation, the defense took the position that defendant did not commit the offenses and focused primarily on seeking to impugn the credibility of L.T. and his mother, including noting inconsistencies in the child's testimony and her conviction for child endangerment.

Counsel also commented generally on the problems inherent in the police interrogation that was only partially audiotaped and noted Hunsinger's suggestion to defendant that he was drunk.

An intoxication defense was not asserted explicitly or implicitly.... The facts of the present case do not clearly indicate a rational basis for the conclusion that defendant suffered from such a 'prostration of faculties' as to render him incapable of forming the requisite mental state to commit the crimes....

Not only did the facts not clearly indicate the appropriateness of the intoxication charge, but the instruction impermissibly interfered with defendant's chosen trial strategy as clearly articulated to the court during the charge conference. Our courts have expressed a general need to refrain from interfering with defense counsel's strategy." (Michael Confusione, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a1131-06.pdf

The Appellate Division recently overturned this defendant's conviction for Terroristic Threats on appeal because the trial court gave the jury improper instructions before its deliberation.

State v. Anthony Parisi, unpublished opinion, App. Div. Docket No. A-4660-07T4 (December 18, 2009) - Conviction for terroristic threats reversed.

"In this case, we conclude that errors in the charge on [N.J.S.A. 2C:12-]3a, although not the subject of an objection at trial, constituted plain error requiring reversal of the conviction and re-trial....

[T]he State's case under both subsections 3a and 3b was premised on defendant's alleged threat to kill DeCamp. The State did not argue that defendant was guilty because he cursed at DeCamp or pounded on the hood of her van, and neither of those actions are 'crimes' that would support a conviction under subsection 3a....

Nor did the judge explain to the jury the elements of 'assault.'... Further, in defining N.J.S.A. 2C:12-3b, the judge told them it was 'different' from 3a because 3b required a threat to kill. Consequently, the jury very well may have concluded that it did not need to find a threat to kill in order to convict defendant under 3a."

In this recent New Jersey criminal appeal, the Appellate Division reversed the defendant's conviction on other grounds, but declined to rule that the trial judge's refusal to supply the jury with written instructions deprived the defendant of a fair trial.

State v. Peter J. O'Brien, ? N.J. ?, 2009 N.J. LEXIS ? (December 29, 2009) - Conviction reversed for other reasons. The trial court's refusal to honor the jury's request for written instructions was not plain error requiring reversal. However, "Because the rule is silent regarding the kinds of considerations that should inform such a determination, we refer the matter to the Civil and Criminal Practice Committees for consideration of a more detailed standard to guide judges in exercising their discretion.

By way of example, but not limitation, the committees should consider whether, if there is a request, there should be a presumption that instructions that are immediately available will be provided; whether there should be a contrary presumption that instructions that are not immediately available will not be provided; whether a definition of 'immediately available' should be adopted; and what kinds of considerations regarding the nature of the case should factor into the judge's Rule 1:8-8 calculus." See also WITNESSES. (Jay L. Wilensky, A.D.P.D.)
http://www.judiciary.state.nj.us/opinions/supreme/A-89-08.pdf

In this recent criminal case won on NJ appeal, the defendant convinced the appeals court that his expert witness should have been allowed to testify that he was a drug addict. This would have assisted the defense that drugs found on his person were for personal use and not for sale.

State v. Ryshan Tatum, unpublished opinion, App. Div. Docket No. A-1313-08T4 (December 23, 2009) - Convictions reversed following remand for hearing on whether expert's opinion could be of assistance to the jury.

"Although the judge found that McCorkell qualified as an 'expert in alcohol and substance abuse counseling with an expertise in therapy and counseling,' he concluded that McCorkell's testimony would not have been of assistance to the jury, or that even if it would, it would not have affected the result of the case.

We disagree with the first proposition and find the second proposition irrelevant under the Supreme Court's remand order.... The average juror would not know about the standards for determining drug addiction set forth in the DSM-IV. Thus, an expert's opinion applying those standards to determine if defendant was a drug addict would be useful in deciding whether that was so or not.

Since in this case, the defense was that the drugs were for personal use, defendant's status as an addict would obviously be relevant. Of course, drug addicts can and often do sell drugs to support their habit, but if a defendant was a drug addict at the time of the offense, it is at least more likely that he had the drugs for personal use....

Since McCorkell's testimony could be of assistance to a jury and since it cannot be barred simply because he relied on the kind of hearsay that experts in his field rely on, and because he did not squarely address the substance of Graves's testimony, we are obliged to reverse and remand for a new trial."

http://www.judiciary.state.nj.us/opinions/a1313-08.pdf

This criminal defendant recently won on appeal, by successfully arguing that the trial court erred by improperly admitting evidence pertaining to the defendant's sexual proclivity. By doing so, the defendant avoided a lengthy prison term and registration under Megan's Law.

State v. Kiwanie Salter, unpublished opinion, App. Div. Docket No. A-0502-08T4 (December 24, 2009) - Convictions reversed. "Defendant contends the trial court erred by admitting evidence of 'other acts' evidence that (1) defendant engaged in consensual anal intercourse with C.B., (2) defendant whispered during consensual sex with C.B., (3) defendant kissed his daughter on the mouth, and (4) defendant previously was in possession of a gun.

Defendant also contends that the State produced none of this evidence in discovery, nor did the State provide any advance warning that this evidence would be presented at trial. We agree that prejudicial evidence regarding defendant's preference for anal sex, kissing his daughter on the mouth, and possession of a gun was presented to the jury without meeting the requirements of N.J.R.E. 401, 403, and 404(b)....

First, C.B.'s testimony about defendant's preference for anal intercourse with her was not relevant and should have been excluded.... Defendant's state of mind was not a disputed issue at trial. The defense never suggested that defendant was not guilty because he did not have the requisite criminal intent to engage in anal intercourse with T.B.

The defense argued that the incidents never happened, that T.B.'s testimony was a complete fabrication. We also reject the prosecutor's suggestion that C.B.'s testimony was relevant to prove defendant's motive for the sexual assaults of T.B. We see no 'tendency in reason,' ... between a man's sexual preferences with his adult girlfriend and motivation to engage in sexual activity with a child when the adult relationship has ended....

The prosecutor's proffer on relevance by its own terms established that the testimony was inadmissible under N.J.R.E. 404(b). In effect, the prosecutor said that she sought to offer C.B.'s testimony to prove defendant's disposition to act with T.B. in conformity with his preference for anal sex with C.B. Evidence rule 404(b) expressly prohibits admission of 'evidence of other ... acts ... to prove the disposition of a person in order to show that such person acted in conformity therewith.' N.J.R.E. 404(b)....

Also significant in gauging prejudice to defendant under N.J.R.E. 403 and 404(b) is the trial court's failure to give any limiting instruction with respect to C.B.'s testimony about anal sex." (Rubin M. Sinins)
http://www.judiciary.state.nj.us/opinions/a0502-08.pdf