NEW JERSEY SUPREME COURT

No reversals reported.

 APPELLATE DIVISION

CLICK TO READ State of New Jersey v. Fuquan K. Knight, Docket # A-0377-20, A-0437-21

These two consolidated appeals by codefendant brothers in an armed robbery case concern a surveillance video recorded at the crime scene.  The key approximately six-second portion of the video shows three men, two of whom were allegedly armed, escorting the victim behind a deli moments before he was robbed.  The State contended the culprits in the video were the two brothers and their father.  The video was played without objection during the trial and the State’s closing argument.

During its deliberations, the jury requested that the video be shown again multiple times, in slow motion and with pauses.  Over defense counsel’s objection, the trial judge granted the jury’s requests, and the videos were replayed in the courtroom under the judge’s supervision.  On appeal, defendants argue the slow-motion video replays were unduly prejudicial, citing research showing that such slow-motion replays can increase juror perceptions of an actor’s intentionality.

In this opinion of first impression, the court holds that, subject to offsetting concerns of undue prejudice, surveillance video footage may be presented to jurors during a trial and in summation in slow motion or at other varying speeds, or with intermittent pauses, if the trial court in its discretion reasonably finds those modes of presentation would assist the jurors’ understanding of the pertinent events and help them resolve disputed factual issues.

The courts further holds—again subject to offsetting concerns of undue prejudice—that trial judges in their discretion may grant a jury’s requests during deliberations to replay the videos in such modes one or more times, provided that the playbacks occur in open court under the judge’s supervision and in the presence of counsel.

Going forward, the court offers several non-exclusive factors to assist judges when considering whether to allow surveillance videos to be shown in varying speeds or with intermittent pauses during the trial and summations, and on a jury’s request during deliberations.  The court further recommends that the Model Criminal Jury Charge Committee consider crafting an instruction to guide jurors when surveillance videos are presented in such modes.

CLICK TO READ State of New Jersey v. George J. Sappah and Greta J. Sappah, Docket # A-2237-22

The State appealed from the trial court’s March 13, 2023 orders granting a motion for mistrial and dismissing the indictment with prejudice against defendants George J. Sappah and Greta J. Sappah.  The Appellate Division affirmed the order granting a mistrial, but reversed the dismissal of the indictment.

Defendant George Sappah was charged with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1); second-degree sexual assault, N.J.S.A. 2C:14- 2(b); and second-degree prostitution, N.J.S.A. 2C:34-1(b)(7).  Greta Sappah was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2); and first-degree prostitution, N.J.S.A. 2C:34-1(b)(4).

At trial, the defense theory was that the complainant fabricated the assaults and her testimony was uncorroborated, as set forth in their opening statements.  At trial, the State elicited testimony from the complainant that George Sappah gave Greta Sappah cash in envelopes which she kept in a bedroom dresser and her car, and that the complainant and the complainant’s mother saw those cash-filled envelopes.  The mother testified that Greta Sappah told her she had taken cash out of her home equity line of credit.

The defendants requested a sidebar and alerted the court they were not aware of A.M.’s testimony about the envelopes and home equity line of credit, details not contained in her earlier statement to law enforcement. The first assistant acknowledged he learned of the new information the previous night, when he conducted a more “comprehensive witness-preparatory conversation” by phone, without an investigator on the call.  Although the new information proffered by A.M. was not previously known to defendants, the first assistant did not provide an updated report of the new information nor did he alert either defense counsel of his conversation with A.M. prior to her testimony. Accordingly, defendants moved for a mistrial.

The court determined the State had committed a discovery violation under Brady v. Maryland, 373 U.S. 83 (1963). The court found “the State elicited testimony regarding envelopes filled with cash, even confirming the victim’s testimony about the glove compartment, information that was never contained in any earlier statement.”  The trial court ruled that the evidence was purposely not disclosed, rather suppressed, for the sole purpose of presenting corroborative testimony which was directly relevant to an element of the prostitution charges, specifically, but also clearly bolstering the credibility of the victim.  It also determined that this had a negative effect on the defense trial preparation, their opening statements, and cross-examination of the witnesses.

The trial court also noted that it had presided over a prior trial of George Sappah, prosecuted by the same prosecutor, which ended in a mistrial.  In the prior trial, the State had also withheld evidence until the eve of trial.

The defendants requested a mistrial and dismissal of all charges with prejudice.  The State requested the court provide a curative instruction to the jury to disregard the prior undisclosed testimony or, in the alternative, dismiss the prostitution charges.

The Appellate Division held that there was no doubt the first assistant’s withholding of the new information constituted a Brady violation.  It also held that the trial court correctly determined that the State’s error could not be remedied by a curative instruction or adjournment.  While the first assistant’s failure to disclose the statement constituted a Brady violation in this case, the conduct was not “so outrageous” as to “absolutely bar” the prosecution of the case.

Reversed in part, affirmed in part, and remanded for a new trial.

CLICK TO READ State of New Jersey v. Jerry Rosado, Docket # A-53-22

In this appeal, Appellate Division considered whether the January 3, 2002 amendment to the criminal statute of limitations, N.J.S.A. 2C:1-6, can toll the five-year limitations period in effect in 1990, when defendant allegedly committed a sexual assault.

On May 27, 1990, S.N. was found dead in Wildwood City. Vaginal smears and fingernail scrapings taken from S.N. contained an unknown DNA profile, but no one was charged with any crime related to her death or sexual assault for more than 30 years. In August 2018, the unknown DNA profile was sent to a different lab for analysis, and defendant was identified as a person of interest. In June 2021, DNA taken from defendant was found to have a high probability of matching the DNA from S.N.’s body. Defendant was charged with sexual assault in April 2022.

Defendant moved to dismiss the criminal complaint, contending that his prosecution was time-barred by the statute of limitations in effect at the time the crime was committed. The trial court denied defendant’s motion, reasoning that the statute of limitations did not begin to run until detectives obtained DNA from defendant in 2021. The court held that the 2002 amendment to the statute of limitations did not revive an expired prosecution and, therefore, did not violate the Ex Post Facto Clause of the Federal Constitution. The Appellate Division granted defendant’s motion for leave to appeal the denial of his motion to dismiss. The Appellate Division reversed and remanded, directing the trial court to dismiss the criminal complaint with prejudice. 475 N.J. Super. 266, 270 (App. Div. 2023).

Noting that the statute of limitations is a complete defense to a criminal prosecution, the Appellate Division explained that, at the time the crime was committed, the statute of limitations for sexual assault was five years. Id. at 273 (citing N.J.S.A. 2C:1-6(b)(1) (1989)). And the five years began to run “on the day after the offense [was] committed,” i.e., “when every element [of the offense] occur[red].” Id. at 273-74 (quoting N.J.S.A. 2C:1-6 (1989)). The five-year limitations period thus expired on May 27, 1995. See id. at 275. The Appellate Division next observed that, “[s]ince 1990, N.J.S.A. 2C:1-6 has been amended several times” and “[t]wo of those amendments are relevant” here: (1) the 1996 amendment “eliminat[ing] the time limitation for bringing a prosecution for a sexual assault”; and (2) the 2002 amendment that “carve[d] out an exception for circumstances in which the prosecution includes DNA or fingerprint evidence.”

The Appellate Division noted that the State had conceded that the 1996 amendment did not apply — a concession “consistent with the plain language of the 1996 amendment, which stated that it was applicable to ‘offenses not yet barred from prosecution . . . as of’ May 1, 1996.” Id. at 275 (quoting L. 1996, c. 22, § 2).

The Appellate Division then determined that the 2002 amendment likewise did not apply: “The 1996 amendment reveals that the Legislature clearly understood that amendments could be applied prospectively or retroactively,” the court stressed, and yet “[t]he 2002 amendment does not contain any language indicating that the Legislature intended to apply that amendment retroactively. Instead, in enacting the 2002 amendment, the Legislature stated that the amendment ‘shall take effect immediately,’” a phrase the Court has consistently held to signal prospective application only. Id. at 275-76 (quoting L. 2001, c. 308, § 2).

Finally, the Appellate Division found that its plain language interpretation was reinforced by the ex post facto protections of the State and Federal Constitutions, which “prevent the time for prosecution to be extended in any case where the pre-existing limitations period has already expired.” Id. at 276. The court explained that, if defendant had been charged with the same crime in 1997, the charge would clearly have been time-barred under the statute of limitations in effect at that time; the same therefore had to hold true despite the 2002 amendment, which could not “constitutionally revive what has already expired.”

CLICK TO READ State of New Jersey v. Manuel Quinones, Docket # A-3845-21

In this appeal, the Appellate Division held that the delay of five and a half years between defendant’s arrest and his still-unscheduled trial violated his constitutional right to a speedy trial, and dismissed the Indictment.  The Court relied on the Supreme Court’s four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972). Those factors include: the length of the delay; the reason for the delay; the assertion of the right by defendant; and prejudice to defendant.

The Appellate Division reversed the order denying Defendant’s motion to dismiss, vacated his guilty plea, and dismissed the charges with prejudice.

CLICK TO READ State of New Jersey v. Rodney E. Williams, Docket # 3808-21

Defendant was charged with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b(1) (count one); second-degree certain persons, N.J.S.A. 2C:39-7b(1) (count two); fourth-degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3f(1) (count three); and third-degree receiving stolen property, N.J.S.A. 2C:20-7a (count four).  Police stopped Defendant as he was walking down the street based on a tip from a confidential informant that a black male wearing a multi-colored jumpsuit had a gun.  Police conducted a frisk, but nothing was found on the male initially.  Police continued to detain Defendant because they found his behavior to be “suspicious” based on the fact that a female who was with him when he was stopped walked away quickly when she saw police and said “I’m not with him.”  Police caught up to the woman who was walking with a juvenile male, who was carrying a drawstring bag like a backpack that was weighted down by an object.  The woman and the juvenile were stopped and frisked, and a gun found inside the bag.  The woman then stated that the gun belonged to her boyfriend – the Defendant who had been stopped earlier.  Based on that statement, Defendant was arrested.  He moved to suppress the handgun, arguing that he was unlawfully detained after the initial pat-down produced no weapons or contraband.  The trial court denied the motion.

The Appellate Division reversed and granted suppression.  The Court found that the police lacked a reasonable suspicion that Defendant had a a handgun to justify the stop and frisk.  There was nothing in the record regarding any testimony regarding the length of the confidential informant’s relationship with police or if the prior tips were fruitful.  With respect to the confidential informant’s basis of knowledge, all that was related to police was that the suspect was “male” wearing a “multi-colored sweatsuit.” The tip was silent to any other detailed identifiers.  This was insufficient to establish reasonable suspicion.  Additionally, police lacked justification to continue the detention after the frisk produced nothing.

Motion to suppress granted.

CLICK TO READ State of New Jersey, Jose Y. Martinez-Mejia, Docket # A-3472-21

 The main issue in this criminal appeal is whether the Luring, Enticing Child by Various Means statute, N.J.S.A. 2C:13-6(a), requires the State to prove a defendant lured or enticed a “child,” in this case an undercover law enforcement officer posing as a fourteen-year-old girl, into traveling or accompanying the defendant to some location other than the victim’s own home.

The Appellate Division rejected defendant’s contention that because he enticed the “child” to meet him alone, and defendant traveled to the “child’s” home, a judgment of acquittal should have been entered. By its plain language, the statute forbids an adult from “luring or enticing a child to meet or appear at any other place.” The Court held that the child’s home can be the “other place.” Here, that location is a place “other” than where the defendant was when he communicated with the child.

Conviction affirmed.