New Jersey Criminal Cases of Interest
May – June 2011

By NJ Criminal Lawyer, David A. Schwartz, Esq.

The following is a selection of particularly significant or interesting cases decided by the New Jersey Supreme Court or the Appellate Division in May of 2011.


State v. Anyoli R. Gonzalez, unpublished opinion, App. Div. Docket No. A-0962-07T1 (May 27, 2011) – Convictions reversed.  “Defendant contends that he asserted his right to counsel at the beginning of the videotaped statement, but, instead of honoring his request, the police continued interrogating him.  He argues, therefore, that these statements were obtained in violation of his constitutional rights and were improperly admitted at trial.  We agree with defendant on this point and we conclude that the error was not harmless….  [E]ven if there was some equivocation in defendant’s assertion of the right to counsel in the totality of the circumstances, his subsequent statements were nevertheless required to be suppressed….  When an ambiguous request for counsel is made, any further questioning initiated by the police must be narrowly circumscribed to clarification of the ambiguity….  Charon and Ackerman simply did not adhere to this requirement. When defendant started to explain why he felt he needed a lawyer, Charon interrupted him and stopped him, telling him not to ‘deviate from the question.’  When defendant then flatly said, ‘I want a lawyer,’ Charon added the word ‘later,’ and, rather than the detectives focusing solely on whether defendant presently wanted a lawyer or only wanted to consider getting one later, they shifted the focus by asking the next two questions which we have previously quoted, namely: ‘Do you understand that you may stop answering my questions at any time during this statement?’, and ‘With these Rights in mind, do you wish to continue with this statement and answer further questions?’…  Rather than seeking clarification about defendant’s statement that he wanted a lawyer, and attempting to determine whether he meant he wanted a lawyer right now or at some future point, the detectives essentially changed the subject by asking whether he wanted to continue with his statement.  It was apparent from all that had occurred until that time that defendant wanted to tell his version of the events. Therefore, he may well have wanted to continue to do so. However, that does not preclude the fact that he may have also wanted to consult with an attorney or have an attorney present before doing so.  Thus, the follow-up to what was on its face an unequivocal assertion of the right to counsel and, which was at the very least an ambiguous assertion of the right, had the effect of confusing, rather than clarifying the ambiguity.  It placed the burden on defendant to reassert his right to counsel, which would have been non-responsive to the succeeding questions, which pertained to a different subject.  This record does not support a finding beyond a reasonable doubt that the police scrupulously honored defendant’s assertion of his right to counsel in accordance with the requirements of the controlling authorities.”  (Monique Moyse, Designated Counsel)


State v. Keith V. Pittman, ? N.J. Super. ?, 2011 N.J. Super. LEXIS ? (May 13, 2011) – Convictions reversed.  “At trial, Burlington City Detective James Barnes, a twenty-three year veteran of the city police force, testified that, at police headquarters, he tested defendant’s clothes for the presence of blood using a phenolphthalein test, and that the result was positive….  In the present case, there was no evidence presented that the phenolphthalein test utilized by Detective Barnes was generally accepted in the scientific community to be reliable.  The prosecutor offered no expert testimony on the issue of general acceptance and thus the reliability of the evidence, and defendant did not stipulate to that fact….  None of [the three ways a proponent of scientific evidence can prove general acceptance] was used in this case.  Further, the testimony of Barnes himself, a lay witness, did not establish reliability.  We note, as did the State, that the results of phenolphthalein tests have been recognized by courts of other jurisdictions as admissible, presumptive evidence of the presence of blood, and that in those cases, the presumptive nature of the test has been found to affect the weight, not the admissibility of the evidence….  In those cases that have recognized the admissibility of the test results as presumptive evidence of the presence of blood without further confirmatory testing, the limitations of the test and the possibility of false positive results have been fully explained to the jury….  In contrast, in the present case, defense counsel asked Barnes on cross-examination if he knew whether the phenolphthalein test was 100 percent accurate, and Barnes responded that he did not know.  Barnes was also unable to confirm one way or another whether contact with enumerated substances other than blood could result in a false positive.  Thus, the testimony found crucial in cases permitting the introduction of evidence of the results of a non-confirmed phenolphthalein test was not offered here.  Rather, the jury was left with the clear impression that the test was conclusive, not presumptive….  No expert established at the trial of the present matter the manner in which the phenolphthalein test should be performed, concluded that the test performed by Barnes had, in fact, been done as directed, or established what the consequences would have been if improperly conducted.  As a consequence of the foregoing, we conclude that the introduction into evidence of the result of the phenolphthalein test was erroneous.”  (Stefan Van Jura, A.D.P.D.)

State v. Jashawn J. Snowden, unpublished opinion, App. Div. Docket No. A-3375-07T4 (May 25, 2011) – Convictions reversed “[b]ecause we conclude that the trial court committed reversible error when it admitted and relied upon a witness’s un-sworn trial testimony as a basis for determining the admissibility of a prior out-of-court inconsistent statement….  At trial, the State called Jenkins … to testify.  Prior to questioning by the prosecutor, Jenkins was requested to take an oath or affirm to tell the truth pursuant to N.J.R.E. 603.  Jenkins refused. Although the court attempted to persuade Jenkins to take the oath, he never did…..  Although Jenkins’ statement was properly characterized as inconsistent when compared to the statements he made at trial after feigning any recollection of the facts contained in his pretrial statement, … , the court erred in allowing the State to introduce the out-of-court statement because Jenkins had ‘refused to take an oath or make an affirmation.  To that extent, his assertions from the witness stand cannot fairly be characterized as “testimony” under N.J.R.E. 803(a)(1).’…

Because of the highly prejudicial nature of the aforestated two errors, we reverse and remand for a new trial.”  (Michael C. Kazer, Designated Counsel)


State v. Anthony S. Coplin, unpublished opinion, App. Div. Docket No. A-3243-09T3 (May 23, 2011) – Convictions reversed.  “Defendant argues that the trial court erroneously denied his motion seeking to withdraw his guilty plea.  Citing State v. Slater, 198 N.J. 145 (2009), defendant contends the court failed to apply the requisite four-prong standard governing motions seeking to withdraw guilty pleas….  Here, although the trial court made a determination that defendant’s plea had been entered knowingly, intelligently, and voluntarily after consultation with counsel, the court failed to address the motion under the four-prong Slater standard.  Applying that standard, we conclude that the trial court erroneously denied the motion and reverse….  Defendant asserted his innocence throughout the proceedings until the time of his plea. In furtherance of that assertion, defendant possessed a videotape which purportedly supported his alibi that he was not present at the time of the incident.  The mere fact that the prosecutor could not identify defendant on the videotape does not defeat defendant’s alibi defense, particularly if defendant’s witness can identify defendant on the videotape.  The issue is for the factfinder….  Although the prosecutor had notified defense counsel several days prior that the State intended to proceed to trial, defense counsel failed to inform defendant of that advice until shortly before the plea.  After the court denied defendant’s request for an adjournment to retain new counsel and denied his request for a short trial adjournment to accommodate his witness who would authenticate the videotape for purpose of introduction at trial, only then did defendant enter the plea.  Defendant asserted that as a result of the lack of proper pretrial communication from his attorney and the court’s denial of adjournment to accommodate his witness, that he felt pressured to enter the plea.  We find defendant’s assertions are supported in the record.”  (Wayne R. Maynard)

State v. Jerome Damon, unpublished opinion, App. Div. Docket No. A-0983-08T2 (May 23, 2011) – Conviction reversed, case remanded for further proceedings.  “The record clearly establishes that defendant filed a motion to withdraw his guilty plea prior to sentencing.  Notwithstanding the court’s cryptic comments expressing satisfaction that the plea had been freely and voluntarily entered based upon the court’s purported recollection of the plea hearing, the record also makes clear that the judge refused to consider defendant’s motion to withdraw his plea because the court believed no such motion had been made.  Defendant had a right to have his motion considered and ruled upon by the court.  Both attorneys corroborated defendant’s assertion to the court that he had indeed filed such a motion.  Under the circumstances, the court had an obligation to make appropriate inquiries of the staff in the Criminal Case Management Office, rather than conclusively stating that no motion had been filed and summarily refusing to consider the matter….  We therefore remand the matter to the trial court for consideration of defendant’s motion to withdraw his guilty plea….  Because defendant’s motion was filed before sentencing, the motion should be decided based upon the criteria applicable to a pre-sentence motion.  See State v. Slater, 198 N.J. 145, 157-58 (2009); R. 3:9-3(e); R. 3:21-1.”  (Diane Toscano, A.D.P.D.)


State v. G.L., ? N.J. Super. ?, 2011 N.J. Super. LEXIS ? (May 20, 2011) – Denial of motion to vacate convictions for failure to register affirmed.  “In 1995, defendant, G. L., at age seventeen, pled guilty to conduct that, had he been an adult, would have constituted first-degree aggravated sexual assault on a twelve-year-old….  As a result of the offense, defendant, who was given a three-year suspended sentence and two years of probation, was subject to Megan’s Law, N.J.S.A. 2C:7-1 to -23….  Thereafter, defendant wrote to the prosecutor, among others, seeking to have his 1995 plea vacated because he was not informed of its Megan’s Law consequences.  Following an investigation, … , the plea was vacated and defendant was permitted to plead to fourth-degree child abuse, in violation of N.J.S.A. 9:6-3, an offense that is not subject to Megan’s Law….  Approximately one year later, defendant moved to have his convictions for failure to register vacated.  However, his unopposed motion was denied on the ground that the convictions for failure to register were based upon an adjudication that was in full force and effect at the time that the failures took place and therefore were validly entered….  The registration provision, set forth in N.J.S.A. 2C:7-2, requires registration, in a statutorily prescribed manner, by ‘[a] person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of [an enumerated] sex offense.’  [T]he terms ‘convicted’ and ‘adjudicated delinquent’ are ‘unadorned by any modifier, such as “final judgment” or “valid.”’  [Citation omitted]…. Nothing in the statute suggests that the requirement of registration should be retroactively annulled because a plea to a crime subject to Megan’s act is later withdrawn. Thus, … , no legal basis for vacating defendant’s convictions for failure to register exists….”  (William Welaj, Designated Counsel)


State v. J.F.P., unpublished opinion, App. Div. Docket No. A-4380-09T1 (May 9, 2011) – Convictions reversed, case remanded for reconsideration of defendant’s termination from PTI.  “Although not raised by defendant, we note a factual ambiguity in the record concerning the proper amount of defendant’s restitution.  At oral argument, the State represented that the second check written by defendant was issued to replace the first.  The timing of the second check, two days after the return of the first check for insufficient funds, seems to support that interpretation.  The indictment charged defendant in only one count for writing both checks.  However, the notations on the two checks are ambiguous.  The second check could be a proffer of payment of the second half of the amount due or an attempt to replace the first check which was not honored….  Only the amount defrauded by use of the two dishonored checks should be collected by the criminal justice system.  Thus, if, as the State represented, defendant issued the second check to cover the first check, his restitution should have been set at $1435.50 rather than $2871.  Had the lesser amount been set, defendant would have completed his payments and been discharged from PTI without the extension of PTI and prior to the notice of

termination.”  (Barbara Schwartz)


State v. Joseph Adubato, ? N.J. Super. ?, 2011 N.J. Super. LEXIS 98 (May 23, 2011) – DWI conviction affirmed.  “In summary, when he arrived on the scene, Horton and his partner had a sufficient basis to make further inquiry under the concepts of both Pineiro [181 N.J. 13 (2004)] (field inquiry) and Martinez [260 N.J. Super. 244 (App. Div. 1992)] (community caretaking).  Horton’s decision to turn his flashers on when he pulled behind Adubato’s parked car did not, under the particular facts of this case, elevate that inquiry into a Terry stop….  We view the conduct as constitutionally ambiguous.  The driver of such a car might be concerned that he or she was not free to drive away, … , but would also have been reassured that the person parking behind was a police officer rather than a stranger with potentially unfriendly intentions.  The use of the flashing lights enhanced Horton and his partner’s safety, as well as Adubato’s.  Finally, common experience suggests that police officers routinely use their flashers when rendering roadside assistance….  Once Horton ascertained that Adubato had the odor of alcohol on his breath, bloodshot and watery eyes, slurred speech, and that he had been drinking, he had a sufficient basis for a Terry stop.”  (Matthew T. Priore)

State v. Sean Brackin, unpublished opinion, App. Div. Docket No. A-5994-09T2 (May 4, 2011) – DWI conviction reversed.  “[C]ounsel for defendant argued that the stop was unjustified.  In support of that position, counsel relied on State v. Cryan, 320 N.J. Super. 325 (App. Div. 1999), in which we held that the fact that a vehicle, at 4:25 a.m., remained stopped at a light for five seconds after it turned green, then proceeded slowly to turn left, did not justify a police stop of the vehicle under the police’s community caretaking function….  [T]he State sought to distinguish Cryan on the basis that it concerned a five-second infraction, whereas the present case concerned a ten-second one….  Although defendant’s blood alcohol content was very high, and his conviction for driving while intoxicated was otherwise justified — a matter that we hope has been fully considered by defendant in determining the future course of his conduct — we agree that a pause of the length that Officer Tobin testified to observing is not of sufficient length to have raised community caretaking concerns, particularly in circumstances in which defendant’s driving after commencing to proceed through the light was unexceptionable….  Officer Tobin could not have had a reasonable belief that a traffic law had been violated, … , thereby justifying the stop, because as he testified, no cars followed defendant’s, and thus there was indisputably no traffic to obstruct.  Thus, we adhere to our conclusion that a reasonable, articulable suspicion that a motor vehicle violation had been committed was not established.”  (Brian M. Dratch)

State v. Aaron Crooms, unpublished opinion, App. Div. Docket No. A-4118-09T1 (May 11, 2011) – Convictions reversed, suppression of evidence ordered.  “Because we agree that there was an insufficient showing of exigent circumstances to excuse law enforcement from seeking a search warrant, we reverse the order denying defendant’s motion to suppress the evidence seized from the car….  The first two prongs of the automobile exception are present. First, the patrolmen stopped defendant based on ‘dumb luck.’  Second, they had probable cause to believe that defendant’s car contained contraband since the totality of circumstances support the patrolmen’s well-grounded suspicion that they had witnessed a drug transaction…  We conclude, however, that the third prong was not met because exigent circumstances that precluded obtaining a warrant were not present.  Neither the officers’ safety nor the preservation of evidence was in jeopardy, and it was not impractical to obtain a warrant prior to searching defendant’s car….  Here, there was no indication that the Freehold police officers did not have sufficient time to obtain a telephonic warrant from a municipal court judge pursuant to Rule 3:5-3(b).  Although there was testimony that Superior Court judges cannot be contacted after 11:00 p.m., there was nothing to support that the officers could not contact a municipal court judge at that hour. Though it was late at night, there were three police officers initially present, four including the officer with the canine unit, at the scene with defendant, who was alone. The stop was located in a grocery store parking lot without any evidence of third parties who might tamper with the evidence, since Patrolman Otlowski indicated that no one had approached the vehicle during the stop.  There was no testimony elicited at the suppression hearing suggesting that the officers or potential evidence in the car were in danger.  Defendant was cooperative and had stepped away from the passenger compartment of the vehicle.  Finally, there was no evidence that the Freehold Police were shorthanded, except the unsupported testimony of the officers stating that there is less manpower on the weekend.”  (Edward C. Bertucio)

State v. Christopher J. Mauro, unpublished opinion, App. Div. Docket No. A-2085-09T3 (May 31, 2011) – Denial of suppression affirmed in part, reversed in part.  “In this appeal we consider whether there was a basis upon which to conduct a Terry frisk of defendant for weapons and whether the subsequent warrantless search of defendant’s vehicle was justified on the basis of exigent circumstances.  We conclude that none of the factors the Pena-Flores [198 N.J. 6 (2009)] Court articulated that justify the warrantless search of a vehicle were present here.  We therefore reverse the denial of defendant’s suppression motion insofar as the search of defendant’s vehicle but affirm the Terry frisk and evidence seized as a result thereof….  Defendant’s actions during the stop, together with Trooper Neuman’s observation of redness around his nose and constricted pupils, led the officer to believe that defendant had just used drugs.  These facts established the requisite probable cause to believe that defendant’s vehicle contained drugs.  Thus, the critical inquiry here is whether exigent circumstances existed….  The determination of exigent circumstances is fact-sensitive and resolved on a case-by-case basis with consideration of the totality of the circumstances….  These factors fall short of establishing the type of exigency that justified the warrantless search of defendant’s vehicle.  First, the stop occurred in broad daylight during morning rush hour, a time when courts are open for business.  Second, although Trooper Neuman was alone when the stop was initiated, the Woodbine Station was less than six miles away and backup was readily available….  There were other factors that militated against a finding of exigency.  Nothing in the record indicates that the traveled portion of the roadway was blocked because of events unfolding on the shoulder. Trooper Neuman acknowledged that defendant’s vehicle could have been towed.  Nor was the location of the stop in a high crime area.  Trooper Neuman’s description of the area as having ‘higher crime’ than other locations in the Woodbine Station area is not the equivalent of describing the location as a ‘high crime’ area.  Further, there were no confederates who knew of the location of the vehicle and who were thus positioned to remove its contents before its removal.  The fact that the vehicle was a company car did not make it more readily subject to removal by third persons. There was no indication that anyone from the company knew that the vehicle had been stopped at the time Trooper Neuman determined that he would search the vehicle….  Finally, defendant was handcuffed and secured in

the troop vehicle, which was equipped with child safety locks.  Consequently, defendant had no opportunity to gain access to any of the contents within the vehicle.  In short, the State failed to prove that Trooper Neuman did not have time to call for a warrant without compromising his safety and the preservation of evidence.”  (John Douard, A.D.P.D.)