NEW JERSEY SUPREME COURT

No reversals reported.

APPELLATE DIVISION

CLICK TO READ State of New Jersey v. Darryl Nieves, Docket # A-2069-21, State of New Jersey v. Michael Cifelli, Docket # A-2936-21

In these matters, the court considered the scientific reliability of expert testimony that shaking alone can cause the injuries associated with shaken baby syndrome (SBS), also known as abusive head trauma (AHT). The State sought to admit the testimony to prove aggravated assault and child endangerment charges against defendants Darryl Nieves and Michael Cifelli, fathers of infant sons who exhibited associated symptoms while in their respective fathers’ care. Following a hearing in the Nieves matter pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the trial judge concluded that expert testimony of shaking-only SBS/AHT was not scientifically reliable and barred admission of the evidence at trial. The trial judge in the Cifelli matter adopted the finding.

The court affirmed the judge’s decision in Nieves, holding that the State failed to establish SBS/AHT’s general acceptance within the medical community through expert testimony, supporting authoritative scientific studies, and judicial opinions. Where, as here, the underlying theory integrates multiple scientific disciplines, the proponent must establish cross-disciplinary validation to establish reliability. The State failed to do that here. Despite its seeming acceptance in the pediatric medical community, the evidence showed a real dispute surrounding the hypothesis that the biomechanical principles underlying SBS/AHT actually supported the conclusion that shaking only can cause the injuries associated with SBS/AHT.

CLICK TO READ S.B.B. v. L.B.B., Docket # A-0305-21

In this matter, the court considered whether defendant’s act of making and disseminating a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divorce, and asking community members to “press” her husband to deliver the get constituted the predicate act of harassment, in violation of N.J.S.A. 2C:33-4(a), to justify the issuance of a final restraining order under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The court held that defendant’s communication was protected by the Free Speech Clause of the First Amendment and the New Jersey Constitution and did not fall into any of the narrow exceptions—incitement to imminent violence or true threats—which would rob it of its protected status. The court likewise concluded that because defendant’s communication was not impermissibly invasive of plaintiff’s privacy and was animated by a legitimate purpose, the acquisition of a get, rather than a purpose to harass, it was not violative of the harassment statute. Lastly, the court held that plaintiff’s allegation that there was a general tendency of violence toward get refusers in the Jewish community was inapposite because the claim was not supported by the record and because the theoretical possibility that a third party will commit a criminal act cannot render otherwise permissible speech unlawful. As a result, the court vacated the final restraining order entered against defendant.

CLICK TO READ State of New Jersey v. J.R.L., Docket # A-3163-19

Defendant was convicted of First Degree Aggravated Sexual Assault and Second Degree Endangering the Welfare of a Child after trial for an alleged sexual assault on his 6-year old daughter, and sentenced to 40 years imprisonment. At trial, the State introduced evidence concerning test results of the child for Herpes Simplex Virus 2 (HSV-2) and commented on it during its opening statement and summation, claiming that Defendant transmitted HSV-2 to the victim without qualified expert testimony concerning HSV-2 test results, and its assertions about how HSV-2 is transmitted, its dormancy characteristics, and symptoms. The State also did not present expert testimony to explain how or if Defendant could have infected the daughter with HSV-2 without also infecting the child’s mother despite Defendant having unprotected sex with her during the relevant time period. The Appellate Division reversed and remanded for a new trial, finding that the State improperly bolstered its witness with improper arguments that went beyond the evidence.

CLICK TO READ State of New Jersey v. Carlos McClean, Docket # A-0520-19

Defendant was convicted after trial of felony murder, armed robbery, and weapons offenses for the shooting death of one victim and robbery of another, and sentenced to 40 years imprisonment. Prior to the robbery of the victims who were working in a restaurant, a car linked to Defendant’s girlfriend was seen on surveillance video circling the area several times before two men exited the car and attacked the victims. One eyewitness identified Defendant as the shooter, but another identified a co-defendant as the person who committed the homicide. Defendant was questioned and denied all involvement in the incident and stated that he was in Georgia at the time of the incident. He was later arrested and gave another statement. After being issued Miranda warnings, Defendant asked the detectives to call his lawyer, telling the police the lawyer had already called and left a message for police on their phone, and stated “I just need my lawyer right here.” When the detectives asked him whether he wanted a lawyer, Defendant said three times that he wanted his lawyer. The police stated that they would end the statement and told him he would be charged, and then Defendant asked to continue with the questioning after he was denied the right to have his attorney present. He gave a statement hat he and two others drove around looking to commit a robbery when the co-defendants jumped out and attacked the victims, with one of them committing the shooting. Defendant moved to suppress the statement unsuccesfully prior to trial.

The Appellate Division reversed, granted suppression, and remanded for a new trial. The Court held that Defendant unequiocally invoked his right to counsel by asking “Can you call my lawyer?” and stating “I just need my lawyer right here.” By continuing to question him and inform him of the administrative process of booking and arraignment, the police impermissible disregarded Defendant’s invocation of his right to counsel.

CLICK TO READ State of New Jersey v. Maurice Howard and Ronny Paden, Docket # A-2620-22

In this appeal, the State appealed the trial court’s denial of its motion to disqualify John S. Furlong, Esquire as defense counsel. The alleged conflict concerns a situation in which defense counsel represents two separate defendants, under two separate indictments pending in the same county. The problem in this case is that one of the defendants may serve as a witness for the State at the other defendant’s trial. Because there was a conflict of interest, defense counsel was disqualified by the Appellate Division.

CLICK TO READ State of New Jersey v. Luis Bastides, Docket # A-1942-22

Defendant entered a guilty plea to First Degree Sexual Assault, Second Degree Sexual Assault, and Third Degree Endangering the Welfare of a Child. When he returned for sentencing, a different judge presided and stated that the court was rejecting the plea because during a psycho-sexual evaluation, Defendant denied responsibility and placed blame on the victim. The court stated it would not accept a guilty plea from someone who proclaimed their innocence outside of court, and would vacate the plea and the case would be tried. Defense counsel objected and stated that the Defendant stood by his plea and the allocution entered in court. The Appellate Division reversed, finding that the trial court could have imposed less-drastic remedies, such as swearing the defendant in and inquiring about his statements made outside of court, to allow him to consult with counsel, or to grant an adjournment to allow the defendant to confer and consult with others to address the court’s concerns. The case was remanded for further proceedings.