NEW JERSEY SUPREME COURT

CLICK TO READ State of New Jersey v. Calvin Fair, Docket # A-20-22

The Court considers whether a prosecution for terroristic threats under N.J.S.A. 2C:12-3(a) premised on a mens rea of recklessness is constitutional. In February 2015, State Police seized several handguns from defendant Calvin Fair’s home. In April 2015, defendant referenced the search on Facebook, noting that none of the guns the police found were his and that he still had all of his guns.

On May 1, 2015, officers responded to a domestic-violence call at defendant’s home. After a few verbal exchanges with an officer, defendant yelled: “Worry about a head shot, [epithet].” At no point did defendant brandish a weapon. About two hours after the officers left, defendant made Facebook posts stating in part, “THN YU GOT THESE . . . OFFI$ERS THINKIN THEY KNO UR LIFE!!! . . . . I KNO WHT YU DRIVE & WHERE ALL YU MOTHERFU$KERS LIVE AT[.]” After reviewing the public posts, police issued a terroristic threats complaint against defendant. An officer testified that in addition to the “[w]orry about a head shot” comment, he was concerned from the Facebook posts that defendant still had his guns and knew where the officers lived and what cars they drove.

The terroristic threats statute, N.J.S.A. 2C:12-3, has two subsections. Subsection (a) provides that “[a] person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror.” (emphasis added).Subsection (b) applies to threats to kill another.

Defendant was indicted for actions “contrary to the provisions of N.J.S.A. 2C:12-3a and/or b.” Defendant moved to dismiss the indictment, arguing, among other things, that N.J.S.A. 2C:12-3(a) is unconstitutionally overbroad because it criminalizes terroristic threats made with a mens rea of recklessness. At trial, the State asked that the court charge the jury on N.J.S.A. 2C:12-3(a) and/or (b). And the verdict sheet mirrored the indictment, directing the jury to determine whether the State had instructions to the jury in this case, which provided in part that “[o]ne is said to act recklessly if one acts . . . heedlessly, or foolhardily.” (emphasis added).

With this understanding of recklessness as “morally culpable conduct” in the context of true threats, the Court agrees that it is constitutionally sufficient for a prosecution of a threat of violence under N.J.S.A. 2C:12-3(a). The Court does not decide whether a different intent requirement should apply to prosecutions for dissenting political speech, because no such speech was prosecuted here. (pp. 16-29)

In addition to a subjective mens rea of at least recklessness, an objective component is necessary for a prosecution for a threat of violence under N.J.S.A. 2C:12-3(a) to survive First Amendment and Article I, Paragraph 6 scrutiny. On the objective element, the Court departs from Counterman and from the charge that the trial court provided to the jury in this case in one minor respect: the objective inquiry, in which the jury determines whether a reasonable person would have viewed the defendant’s words as threatening violence, must be undertaken not from the perspective of an anonymous ordinary person, but from the perspective of a reasonable person similarly situated to the victim. This is another way of saying that context matters. Considering the perspective of one similarly situated to the victim, which entails consideration of prior interactions between the parties, protects against convictions for statements made in jest, political dissent, or angry hyperbole, while allowing the State to prosecute true threats of violence that would instill fear of injury in a reasonable person in the victim’s position. (pp. 29-32)

The Court remands for a new trial correctly charging the jury on both the objective and subjective components of N.J.S.A. 2C:12-3(a), consistent with this opinion. The Court also asks the Model Criminal Jury Charges Committee to revise the model charge for N.J.S.A. 2C:12-3(a), as to both the subjective recklessness standard — including by removing the terms “heedlessly” and “foolhardily” – and the objective standard discussed in its opinion. (pp. 32-33)

Jurors must unanimously agree that the defendant committed every element of the crime with which he is charged, beyond a reasonable doubt. On remand, the court should additionally charge the jury that it must agree unanimously on whether defendant violated N.J.S.A. 2C:12-3(a), (b), or both. The terroristic threats statute does not identify an individual element of which subsections (a) and (b) are mere examples, but rather lists in the disjunctive two separately enumerated, alternative crimes of terroristic threats. (pp. 22-23, 33-35)

AFFIRMED in part, REVERSED in part. REMANDED to the trial court.

CLICK TO READ State of New Jersey v. Curtis L. Gartrell, Docket # A-31-22

In this appeal, the Court considers whether defendant Curtis Gartrell, who fled from police outside of Newark Penn Station — leaving behind a suitcase containing handguns, ammunition, illegal narcotics, and cash — abandoned the suitcase and is therefore without standing to challenge law enforcement’s warrantless search of the bag.

During the evening of November 6, 2019, an individual at Newark Penn Station reported to New Jersey Transit Police Officers that he had been punched by defendant. As officers spoke to defendant, there was a blue rolling suitcase near him. The officers ran a search for outstanding warrants against defendant. While waiting for the results of the record check, defendant had several phone conversations with a person he referred to as “Spoon” and “bro,” who defendant claimed was coming to pick him up.

Meanwhile, the results of the record check revealed an active warrant for defendant. Officers informed defendant of the warrant and advised him that they intended to place him under arrest. Defendant asked the officers whether he could first give his luggage — the blue suitcase — to “Spoon,” but they declined the request, stating they would first take defendant into custody. Defendant called out, “‘Spoon,’ will you get my clothes, bro,” and turned as if preparing to be handcuffed; he then fled from the officers on foot, leaving the blue suitcase unattended on the sidewalk. Officers apprehended defendant after a brief foot chase.

While other officers chased and arrested defendant, one officer secured and searched the suitcase at the entrance of the station, revealing the contraband. Defendant was charged with possessory offenses and resisting arrest.

Defendant filed a motion to suppress evidence recovered from the warrantless search of the suitcase. The trial court granted the motion, reasoning that defendant did not flee police because he wanted to discard the suitcase or relinquish his interest in it. The trial court also rejected the State’s argument that the search incident to arrest exception applied. The State appealed, and the Appellate Division reversed, holding that defendant had abandoned the suitcase. The Court granted leave to appeal. 253 N.J. 279 (2023).

HELD: Defendant’s possessory or ownership interest in the suitcase ceased when he fled police outside Penn Station and deliberately left his suitcase behind in a public place with no evidence of anyone else’s interest in the bag. Because the State has demonstrated by a preponderance of the evidence that the suitcase was abandoned, defendant is without standing to challenge its seizure and search.

When property is abandoned, a defendant has “no right to challenge the search or seizure of that property.” State v. Johnson, 193 N.J. 528, 548 (2008). Property is abandoned only if “(1) a person has either actual or constructive control or dominion over property; (2) he knowingly and voluntarily relinquishes any possessory or ownership interest in the property; and (3) there are no other apparent or known owners of the property.” State v. Carvajal, 202 N.J. 214, 225 (2010). The State bears the burden of proving that property was abandoned by a preponderance of the evidence. In Johnson, the Court held that the defendant had not surrendered his standing to challenge the search of a bag solely because he had disclaimed ownership, given that the bag was in an apartment with five occupants and could have belonged to any one of them. 193 N.J. at 549-50. The Court observed that “the police might still have easily determined its owner.” Id. at 550. In Carvajal, the Court upheld the search of an unattended bag left on a bus. 202 N.J. at 218, 230. There, the bag was abandoned because it was “left in a public place or on a public carrier” with “no apparent owner,” and the “police did not search the bag until all apparent owners had disclaimed any possessory interest in the property.” Id. at 225-26, 229-30. (pp. 11-14)

Here, no one disputes that defendant fled police to avoid a lawful arrest, knowing that “Spoon,” if such a person existed — the Court notes that the defense was unable to confirm “Spoon’s” identity — did not yet have possession of the suitcase. The act of fleeing to avoid a lawful arrest in a public place demonstrates defendant’s intent to place as much distance as possible between himself and the property left behind. When defendant ran from police in the heavily trafficked area on the sidewalk outside of Penn Station, without any indication that he intended to return, he abandoned the suitcase in a public place. And, unlike when there are a finite and fixed number of potential owners as in Carvajal and Johnson, the police cannot be expected to identify and canvass everyone at or near a major transportation hub to determine who, if anyone, might have a possessory interest in a bag deliberately left behind in a public place. Having thus concluded that the suitcase was abandoned and defendant is without standing to challenge its seizure and search, the Court does not reach the issue of whether police conducted a constitutionally valid search incident to arrest. (pp. 15-17)

Affirmed and remanded to the trial court.

APPELLATE DIVISION

CLICK TO READ State of New Jersey v. Cruz Martinez, Docket # A-2012-21

Defendant filed a Post-Conviction Relief Petition based on ineffective assistance of counsel for failing to call a witness to testify at a pre-trial hearing.  The court heard argument on the motion, but denied the motion without a hearing, finding that Defendant failed to allege sufficient facts to warrant a hearing.  Defendant appealed, and while the appeal was pending, and within 1 year of the denial, Defendant filed a second PCR petition.  The court rejected the filing, sending him a letter advising him that since there was a pending appeal from the first PCR, it would not be processed.  The appeal affirmed the denial of post-conviction relief, and Defendant learned about the decision more than 1 and ½ months after the fact.  He then sent a letter to the court asking it to process his second PCR petition, which the court summarily denied as time-barred.

The Appellate Division reversed and remanded finding that the second PCR petition was timely.  The case was remanded to the trial court to address Defendant’s request for the assignment of counsel and the merits of the petition.

CLICK TO READ State of New Jersey v. Harold K. Colbert and Kareem Jones, Docket # A-0981-21

In the early morning hours of November 1, 2018, Daquan Cuttino was shot to death outside a Newark residence. Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1).

The State’s prosecution of Defendant Harold Colbert for the murder was based primarily on testimony of the victim’s girlfriend, the only known eyewitness, identifying defendant as the shooter. At trial, a police officer testified, without objection, that based upon an “inquiry made to the New Jersey State Police[,]” which maintains the state’s firearm permit records, defendant did not possess a permit to carry a firearm in New Jersey.

During summation, the prosecutor argued that based on this testimony, Defendant had no right to possess the firearm and was guilty of the firearm charges.  The prosecutor also quoted the chief prosecutor at the Nuremburg Trials of Nazi war criminals following World War II.  A jury found defendant guilty as charged and he was sentenced to an aggregate prison term of forty-five years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

The Appellate Division reversed and remanded for a new trial.  The Appellate Division held that the testimony from the police officer was inadmissible hearsay, and even though there was no objection from defense counsel, it constituted reversible plain error. The Appellate Division held that the quote from the Nuremburg trial was “so out of line and unrelated to any evidence or issue in the trial that they infected the jury’s deliberation, and deprived defendant of a fair trial.”  Even though there was no timely objection, this was reversible prosecutorial misconduct.

Reversed and remanded.

CLICK TO READ State of New Jersey v. Michael Wing, Docket # A-3705-21

Defendant filed a petition for Post-Conviction Relief and an evidentiary hearing was held.  The court issued findings of fact and conclusions of law along with an order denying the petition.  The findings of fact and conclusions of law were authored by the judge’s law clerk, not the judge.

The Appellate Division reversed, finding that the Defendant was deprived of the opportunity to challenge his conviction.  The case was remanded to a different judge for a new evidentiary hearing.