Wednesday, May 17, 2017

State v. Habeeb Robinson (A-40-16) (078900)


 State v. Habeeb Robinson (A-40-16) (078900) 
Argued March 29, 2017 -- Decided May 10, 2017 
RABNER, C.J., writing for a majority of the Court. 
In this appeal, the Court considers the newly enacted Criminal Justice Reform Act for the first time and addresses the type and scope of discovery the State must provide when it seeks to detain a defendant pretrial. 
The Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26, has three principal components. First, it allows for pretrial detention of defendants who present such a serious risk of danger, flight, or obstruction that no combination of release conditions would be adequate. Second, it replaced the system’s prior heavy reliance on monetary bail and instead calls for an objective evaluation of risk level and consideration of conditions of release. Finally, the Act establishes statutory speedy trial deadlines. The CJRA took effect on January 1, 2017. 
N.J.S.A. 2A:162-18(a) authorizes the court to order pretrial detention if it finds by clear and convincing evidence that no conditions of release would reasonably assure a defendant’s appearance in court, the safety of the community, and the integrity of the criminal justice process. A rebuttable presumption of detention exists when the court finds probable cause for murder or a crime subject to life imprisonment. N.J.S.A. 2A:162-19(b). 
When a prosecutor applies for pretrial detention, the defendant is held pending a hearing. N.J.S.A. 2A:162-19(d)(2). “In pretrial detention proceedings for which there is no indictment, the prosecutor shall establish probable cause that the eligible defendant committed the predicate offense.” N.J.S.A. 2A:162-19(e)(2). A defendant can rebut a presumption of detention, when one applies, by a preponderance of the evidence. Ibid. If a court orders detention, its decision must be supported by clear and convincing evidence. N.J.S.A. 2A:162-19(e)(3). 
At the hearing, “the court may take into account”: (a) “[t]he nature and circumstances of the offense charged; (b) [t]he weight of the evidence against the eligible defendant”; (c) the defendant’s “history and characteristics”; (d) the danger posed by release; (e) the risk of obstruction of justice; “and (f) [t]he release recommendation” of the Public Safety Assessment (PSA) prepared under N.J.S.A. 2A:162-25. N.J.S.A. 2A:162-20. 
After the Legislature enacted the CJRA, the Court asked the Criminal Practice Committee to propose amendments to the court rules. The Committee divided sharply about the amount and type of discovery that should be required for pretrial detention hearings. The Court struck a compromise: “if the prosecutor is seeking pretrial detention, the prosecutor shall provide the defendant with all statements or reports in its possession relating to the pretrial detention application. All exculpatory evidence must be disclosed.” R. 3:4-2(c)(1)(B). 
The police arrested defendant Habeeb Robinson for killing a victim. According to the affidavit, two eyewitnesses saw the shooting. One identified defendant from a six-person photo array; the other identified a photo of defendant. The Preliminary Law Enforcement Incident Report (PLEIR) adds that a surveillance camera recorded the incident. The pending complaint charges defendant with first-degree murder and weapons offenses. The PSA recommended that defendant not be released. 
The State moved for pretrial detention. At the hearing, the State relied on the hearsay statements in the affidavit of probable cause (which refer to the two eyewitnesses); the presumption of detention under N.J.S.A. 2A:162-19(b)(1) (based on the murder charge); defendant’s criminal history and record of court appearances; and the release recommendation in the PSA. The trial court directed the State to disclose the two witness statements, the photos used in the identification process, the surveillance video, and any incident report that the police prepared. 
The Appellate Division affirmed the trial court’s order. 448 N.J. Super. 501, 506 (App. Div. 2017). The Court agreed to hear the State’s motion for leave to appeal on an accelerated basis.

HELD: Both the trial court and the Appellate Division directed the State to disclose the statements of two eyewitnesses, photos used in the identification process, any incident report of the crime prepared by the police, and a surveillance video. Rule 3:4-2(c)(1)(B) required disclosure of the reports and the photos but not the video. The Court also clarifies and reframes the Rule to help ensure that it strikes the proper balance between two important concerns: a defendant’s liberty interest and the State’s ability to seek to detain high-risk defendants before trial. 
1. Thoughtful people have wrestled over the scope of discovery that should be required at a detention hearing. A number of considerations factor into the ongoing debate: the language of the statute; important concerns for public safety; and the defendants’ liberty interests. In addition, the discovery rule should not impose impractical demands on law enforcement. The administration of justice calls for fair and efficient proceedings. In the case of a detention application, the focus is not on guilt, and the hearing should not turn into a mini-trial. (pp. 26-29) 
2. To balance those aims, the Court sets forth principles to govern the disclosure of evidence at a detention hearing: (1) because the Act calls for a determination of probable cause and an assessment of the risk of danger, flight, and obstruction, which may include consideration of the nature and circumstances of the offense and the weight of the evidence, discovery should likewise be keyed to both areas; (2) the complaint, (3) the PSA, (4) the affidavit of probable cause, and (5) any available PLEIR must be disclosed; (6) all statements and reports relating to the affidavit of probable cause should be disclosed; (7) all statements or reports that relate to any additional evidence the State relies on to establish probable cause at the detention hearing should be disclosed; (8) statements and reports related to items that appear only in the PLEIR need not be disclosed; (9) statements and reports relating to the risk of flight, danger, and obstruction, which the State advances at the hearing, should be disclosed; the phrase “statements and reports” (10) refers to items that exist at the time of the hearing and does not encompass video and audio files as a general rule, but does (11) encompass reports that are in the possession of the prosecutor, law enforcement officials, and other agents of the State; and (12) all exculpatory evidence must be disclosed. (pp. 29-32) 
3. With those principles in mind, and based on the Rule’s practical application since January 1, 2017, the Court clarifies and revises Rule 3:4-2(c), effective at once. The revisions are to be read with Rule 3:13-3, which obligates the State to provide full discovery when it makes a pre-indictment plea offer or when an indictment is returned or unsealed. In appropriate cases, the prosecutor may apply for a protective order directly to the judge who will preside over the detention hearing. If, after an extensive, long-term investigation, the State seeks permission to provide more limited discovery, judges may direct that a representative sample of statements and reports be disclosed before the detention hearing. When the Court adopted the original Rule, it unanimously rejected the recommendation that videotapes be disclosed before a detention hearing. The revised rule maintains that approach. (pp. 32-36) 
4. The discovery rule—in its original and revised form—satisfies the requirements of due process and passes muster under the Federal and New Jersey Constitutions. (pp. 37-40) 
5. Applying Rule 3:4-2(c), as clarified, to this case, any initial police reports about the witnesses must be disclosed, and the prosecution must provide copies of statements or reports of the two eyewitnesses. When an eyewitness makes an identification, the State must document the process and record certain details. That information should be disclosed along with copies of any photo arrays or photos used in the identification process. Because photos shown as part of an identification receive special treatment under the law, their disclosure is an exception to the rule. Neither the original nor the revised Rule calls for disclosure of surveillance videos and similar items. (pp. 41-42) 
The judgment of the Appellate Division is AFFIRMED and MODIFIED. The revised Rule 3:4-2(c) shall go into effect at once. 
JUSTICE ALBIN, DISSENTING IN PART, concurs in the judgment in this case based on the language of the then-operative Rule but dissents from the majority’s decision to draft a new rule. In Justice Albin’s view, the redrafted Rule sanctifies artificial distinctions, making highly relevant evidence non-discoverable (a videotape) and second-hand evidence discoverable (written summary of tape). The redrafted Rule also gives the prosecutor a perverse incentive to place information, not in the affidavit of probable cause, but rather in the PLEIR because reports and statements referenced in the PLEIR are non-discoverable. 

JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion. JUSTICE ALBIN filed a separate opinion, dissenting in part and concurring in part, in which JUSTICE LaVECCHIA joins. 

State v. Rodney J. Miles (A-72-15) (077035)


 State v. Rodney J. Miles (A-72-15) (077035) 
Argued January 4, 2017 -- Decided May 16, 2017 
Timpone, J., writing for a majority of the Court. 
In this appeal, the Court clarifies the methodology to be used in analyzing whether two offenses are the “same offense” for double jeopardy purposes. Since the 1980s, New Jersey courts have applied both the same-evidence test and the same-elements test articulated in Blockburger v. United States, 284 U.S. 299 (1932), in double jeopardy determinations. A finding that offenses met either test resulted in double jeopardy protection for the defendant. 
In October 2010, the Camden County police arrested defendant for selling marijuana to an undercover police officer. Defendant was charged in a warrant complaint with possession of marijuana with intent to distribute and possession of a controlled dangerous substance (CDS) with intent to distribute on or within 1000 feet of a school property. In a separate municipal summons, defendant was charged with the disorderly-persons offense of possession of fifty grams or less of marijuana. Those charges arose from the same attempted sale. 
A grand jury returned an indictment charging defendant with the offenses in the warrant complaint. Defendant then appeared pro se in municipal court to resolve the disorderly-persons offense. At some point before that video proceeding, the original municipal charge was amended to a different disorderly-persons offense—loitering to possess marijuana. Defendant asked the municipal court judge, “why they got me going to Superior Court for this, Your Honor?” The judge then responded that defendant was “not going to Superior Court for this,” but rather for an unrelated child support issue. Defendant then pled guilty to loitering to possess marijuana. 
Thereafter, defendant moved to dismiss the Superior Court indictment on double-jeopardy grounds, arguing that prosecution on the possession charges was barred because he had already pled guilty to an offense that arose from the same conduct. The Superior Court denied defendant’s motion to dismiss, reasoning that prosecution on the indicted charges was not barred because it required proof of an additional element—proximity to a school. Defendant pled guilty to possession of CDS with intent to distribute within 1000 feet of a school (the school-zone charge), but preserved his right to appeal the denial of the motion to dismiss. 
On appeal, the Appellate Division remanded for a finding on the circumstances surrounding the amendment of the disorderly-persons offense. The panel noted that a plea to the original municipal charge, instead of the amended one, could have led to a different result after applying the double-jeopardy analysis. 
On remand, the Superior Court found no direct evidence as to the circumstances surrounding the amendment, and the prosecutor represented that his office was not informed of defendant’s municipal court proceedings. Despite defendant’s expressed confusion during the municipal court plea hearing, the Superior Court concluded that the school-zone prosecution was not precluded by notions of fundamental fairness. 
Defendant appealed again, arguing that double jeopardy barred prosecution on the school-zone charge. The Appellate Division agreed, finding that, although the second prosecution was not barred under the same-elements test, it was barred under the same-evidence test. 443 N.J. Super. 212, 220, 225-27 (App. Div. 2015). 
The Court granted the State’s petition for certification. 225 N.J. 339 (2016). 
HELD: New Jersey now joins the majority of jurisdictions in returning to the Blockburger same-elements test as the sole test for determining what constitutes the “same offense” for purposes of double jeopardy. In the interest of justice, the Court applied both the same-elements test and the now-replaced same-evidence test in this case; going forward, for offenses committed after the issuance of this opinion, the same-elements test will serve as the singular framework for determining whether two charges are the same offense for purposes of double-jeopardy analysis.

1. Here, the municipal court had jurisdiction to resolve defendant’s disorderly-persons charge pursuant to N.J.S.A. 2B:12-17, and failure to join does not automatically bar subsequent prosecution. For judicial efficiency and fairness to defendants, the Court urges careful coordination between the municipal courts and county prosecutors. (pp. 8-10) 
2. The Court has consistently interpreted the State Constitution’s double-jeopardy protection as coextensive with the guarantee of the federal Constitution. A prime concern when reviewing a double-jeopardy claim is whether the second prosecution is for the same offense involved in the first. (pp. 10-11) 
3. The United States Supreme Court first announced its test for determining whether a second prosecution is for the same offense in Blockburger, supra, 284 U.S. at 304: If each statute at issue requires proof of an element that the other does not, they do not constitute the same offense and a second prosecution may proceed. This has come to be known as the same-elements test. (pp. 11-12) 
4. The Court read the language in Illinois v. Vitale, 447 U.S. 410, 421 (1980), as creating an alternative to Blockburger’s same-elements test—the same-evidence test. The United States Supreme Court reached the same conclusion in Grady v. Corbin, 495 U.S. 508, 510 (1990), but revised its position in United States v. Dixon, 509 U.S. 688, 704, 708-09 (1993), in which it deemed the same-evidence test unworkable and reinstated the Blockburger same-elements test as the sole measure of whether two offenses constitute the same offense. (pp. 12-14) 
5. Since Dixon, the majority of states have similarly ruled that the Blockburger same-elements test sets forth the proper test for determining whether two charges are the same offense. Until this case, the Court has not had occasion to reevaluate double-jeopardy jurisprudence in light of Dixon’s return to the same-elements test. As a result, appellate panels have split over whether the same-evidence test still applies in New Jersey. (pp. 14-16) 
6. The Court now adopts the same-elements test as the sole double-jeopardy analysis, thereby realigning New Jersey law with federal law. The same-elements test is effortlessly applied at early stages of prosecution; it is capable of producing uniform, predictable results; and it aids defendants by reducing multiple court appearances. Rule 3:15-1(b) bars subsequent prosecutions for indictable offenses, and failure by the prosecution to properly join indictable offenses bars a subsequent prosecution. State v. Williams, 172 N.J. 361, 368 (2002). The Court recognizes a narrow circumstance where it is possible that neither the same-elements test nor the rule in Williams would prevent a second prosecution; if those unlikely events unfolded, the second prosecution might well be barred on joinder or fundamental fairness grounds. As a further safeguard, the Court invites the Supreme Court Committee on Criminal Practice to review the joinder rule and consider adding non-indictable offenses to it. (pp. 16-21) 
7. Because the decision establishes a new rule of law, the Court applies the new singular same-elements standard prospectively to offenses committed after the date of this opinion. In fairness to defendant, the Court conducts double-jeopardy analysis using both the same-elements test and the now-removed same-evidence test. Application of the Blockburger same-elements test would lead to the conclusion that loitering to possess marijuana is not the same offense as possession within a school zone. Each offense contains at least one element not required to prove the other. Under the same-evidence test, however, successive prosecution for the school-zone offense is prohibited because it is based on the same evidence that supported the plea and conviction on the loitering offense. (pp. 21-23) 
8. For offenses committed after the issuance of this opinion, the same-elements test will serve as the singular framework for determining whether two charges are the same offense for double-jeopardy analysis. (p. 23) 
The judgment of the Appellate Division is AFFIRMED. Defendant’s conviction and sentence on the school-zone offense are vacated. 
JUSTICE ALBIN, DISSENTING, expresses the view that majority’s new rule cannot be squared with the principles of fairness that previously animated New Jersey’s double-jeopardy jurisprudence. According to Justice Albin, the majority’s reversion to the same-elements test will allow the State to pursue repeated prosecutions for the same offense despite an earlier conviction or acquittal. 

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which JUSTICE LaVECCHIA joins. 

Friday, May 12, 2017

State v Morrison Official misconduct does not apply to EMT

State v Robinson defendant entitled to discovery prior to new pre-detent...



Municipal Court can stay DL suspension after DWI if appeal
State v. Robertson __ NJ __ (2017)
The Crowe factors are not a good fit to assess license suspensions in driving while intoxicated (DWI) cases. Defendants who seek a new trial before the Law Division should be presumptively eligible for a stay of a driver’s license suspension. The State can overcome that presumption by showing that a stay would present a serious threat to the safety of any person or the community. If no conditions would mitigate that risk, the court should not stay the sentence. If a defendant is convicted of DWI by the Law Division, the defendant has the burden to justify a stay of a driver’s license pending appeal to the Appellate Division by demonstrating the three elements set forth in Rule 2:9-4. If a stay is granted, the court may impose appropriate conditions similar to those available after a defendant’s conviction in municipal court. Municipal court and trial judges should set forth reasons on the record when they rule on a stay motion. (A-58-14)
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
www.njlaws.com

Limited warrantless search for credentials ok State v Hamlett

Limited warrantless search for credentials ok State v Hamlett

State v Evans Plain feel search not permitted with strip search for DP

State v Bacome Defendant’s furtive movement after car stop justified re...

State v Legette No warrantless entry of homes

2C:43-13.8 Conditional dismissal assessment, restitution and other assessments.

2C:43-13.8 Conditional dismissal assessment, restitution and other assessments.

8. Conditional Dismissal Assessment, Restitution and Other Assessments. A defendant applying for admission to the conditional dismissal program pursuant to P.L.2013, c.158 (C.2C:43-13.1 et al.) shall pay to the court an application fee of $75 which, upon collection, shall be deposited into the "Municipal Court Diversion Fund" established pursuant to section 9 of P.L.2013, c.158 (C.2C:43-13.9). Monies in the fund shall be used to defray the cost of intake and monitoring services related to the defendant's participation in the conditional dismissal program as provided by the Probation Division of the Superior Court. If admitted into the program, the defendant shall be required to pay any restitution, costs, and other mandatory assessments that would have been imposed by law for a conviction of the offense charged.

A municipal court judge may impose an assessment, based on the nature of the offense and the character of the defendant, that shall not exceed the amount of a fine that would have been imposed for conviction of the offense charged. Such assessment shall be distributed in the same manner as a fine for the offense charged. A defendant shall be advised of these financial conditions prior to seeking entry into the program.

A defendant may apply for a waiver of the fee, by reason of poverty, pursuant to the Rules Governing the Courts of the State of New Jersey, or the court may permit the defendant to pay the conditional dismissal fee and other assessments in installments or may order other alternatives pursuant to section 1 of P.L.2009, c.317 (C.2B:12-23.1).