NEW JERSEY SUPREME COURT

No reversals reported

NEW JERSEY APPELLATE DIVISION

CLICK TO READ State of New Jersey v. Alberto Martinez, Docket # A-1063-21

Sergeant Christopher Sorber of the Edison Police Department received an anonymous top that Defendant was selling heroin at a Dunkin Donuts parking lot, which was next door to a tire shop where he worked, and would drive over in a silvery Chevy Impala to make the sales. Two weeks later, Sergeant Sorber and two other officers conducted surveillance from separate, unmarked vehicles watching the parking lot, and saw Defendant drive over from the tire shop to the Dunkin Donuts in a silver Impala. The co-defendant approached and entered the Defendant’s car, which had tinted windows and obstructed the police officers’ view. A minute later the co-defendant got out of the car and walked over to the driver’s side of a parked van, and handed the driver an unknown object. Defendant pulled out of his parking spot and was blocked by Sergeant Sorber’s vehicle, and he was ordered out of the car and arrested. At the same time, another officer held the GMC driver at gunpoint and saw that Benko tossed an item under an adjacent vehicle. The officer arrested Benko and Michael Iacobacci, who was the driver of the GMC, and recovered two bundles of heroin stamped “Mike Tyson.” Subsequently, Sergeant Sorber searched defendant’s vehicle and found a bookbag containing a digital scale, $1,800 cash, plastic “baggies,” heroin, cocaine, and Defendant’s tire shop pay stub.

Defendant was charged with second-degree conspiracy to possess heroin and/or fentanyl with intent to distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(2) (count one); third degree possession of heroin and/or fentanyl, N.J.S.A. 2C:35-10(a)(1) (count two); second-degree possession with intent to distribute heroin and/or fentanyl, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count three); third-degree distribution of heroin and/or fentanyl, N.J.S.A. 2C:35-5(b)(3) (count four); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count nine); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count ten); and third-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25(a) (count eleven). He filed a motion to suppress, which was denied. Defendant was convicted at trial and was sentenced to a total of 20 years imprisonment.

While the appeal was pending, the New Jersey Supreme Court decided State v. Smart, 253 N.J. 156 (2023), which was dispositive in this case.

Under the automobile exception to the warrant requirement, a vehicle may be searched without a warrant where: (1) “the police have probable cause to believe that the vehicle contains contraband or evidence of an offense,” and (2) “the circumstances giving rise to probable cause are unforeseeable and spontaneous.” In Smart, the Supreme Court held that the State must prove the ripening of probable cause was both “unforeseeable and spontaneous.”

The Appellate Division held that while the actions of the co-defendant in getting in and out of the Defendant’s vehicle quickly, combined with the anonymous tip, gave the police reasonable suspicion that a drug deal had occurred, it did not allow a warantless search of the Defendant’s vehicle. The Appellate Division held the police should have impounded the vehicle and secured a warrant.

Judgment reversed, physical evidence suppressed.

CLICK TO READ State of New Jersey v. Ronell J. Almorales, Docket A-2632-22

Camden County Police Department Detective William Grasso was conducting an undercover surveillance operation on Browning Street in Camden based on information from a confidential informant. According to the informant, a heavy-set black male wearing a black jacket with fur on the hood had a handgun on his person on the block. Another detective from the Narcotics Gang Unit saw a male fitting the description on the sidewalk on Browning Street with four other unidentified males. The detective directed Grasso to stop the man. Grass, with two other detectives, stopped the Defendant and conducted a Terry frisk for weapons, finding a handgun in his jacket pocket. They also found 63 vials of cocaine and cash. Defendant was subsequently charged in a five-count indictment with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(5) (count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count three); second-degree possession of a weapon during a CDS offense, N.J.S.A. 2C:39-4.1(a) (count four); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count five).

Defendant moved to suppress, arguing the informant’s tip was insufficient to justify a stop and frisk. At the hearing, the detective did not testify but the defense did not dispute the facts set forth in the State’s brief in opposition to the motion to suppress. The State did not object to the court deciding the case on the agreed-upon facts. The court later issued an order suppressing the physical evidence. The court concluded the detectives “lacked reasonable suspicion to stop and frisk defendant because they did not sufficiently corroborate any criminal activity based on the confidential informant’s tip.” Critically, the judge noted “[d]efendant’s body-type, clothing, and location were the only facts the police were able to corroborate.” The judge pointed out that the detectives “did not observe any activity, like defendant adjusting his waist band; or any observable indicia, like a bulge in defendant’s pocket; to raise a suspicion that defendant was concealing a handgun.” The court held that the unnamed informant did not provide the requisite detail to establish how they knew Defendant had a gun. Because the detectives had “insufficient evidence to support a finding of reasonable suspicion to warrant an investigatory detention,” the judge concluded that “all the evidence seized from defendant’s person [was] fruit of the poisonous tree and must be excluded.”

The State appealed. The Appellate Division affirmed, finding that no evidentiary hearing was required because the material facts were not disputed. The Appellate Division also affirmed the granting of suppression for the same reasons the trial court did.

CLICK TO READ State of New Jersey v. Laquay Williams, Docket # A-1515-21

a/k/a Shitty Moo.

At around four in the morning on December 29, 2006, Jerrod Moss, also known as “EZ”, was shot and killed in a parking lot, across the street from a strip club in Atlantic City. A lengthy police investigation followed, in which numerous eyewitnesses came forward and identified defendant as the shooter. On September 18, 2013, an Atlantic County Grand Jury indicted defendant on four counts: first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a handgun by a convicted person, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7. He was convicted, sentenced to 70 years imprisonment, and his convictions were affirmed on direct appeal.

He later filed a petition for post-conviction relief alleging ineffective assistance of counsel, based primarily on trial counsel’s failure to adequately investigate two testifying witnesses — Jerry Hazelwood and Kal Mitchell — and trial counsel’s failure to call Cory Benning as a defense witness. Hazelwood was a cellmate of Defendant who was in prison at the time he was indicted. The defense obtained affidavits from Hazelwood in which he recanted his trial testimony and Defendant argued these were newly discovered evidence. An affidavit from a third party, Kendall Jenkins, corroborated Hazelwood’s affidavit. Another third party provided an affidavit that stated that Mitchell had admitted to providing false testimony at Defendant’s trial. Finally, Defendant attached a letter from his trial attorney in which he wrote that he had interviewed Benning, and that Benning would make a good defense witness and was willing to testify at trial.

The trial court denied the motion, discrediting the affidavits and found that trial counsel had adequately represented Defendant by impeaching Mitchell’s testimony on several issues. In sum, the court found Hazelwood and Mitchell’s later “recantations” were insufficient to warrant a new trial because defendant presented them
“without any evidence to show that they are probably true and the trial testimony is probably false.”

The Appellate Division reversed. It found that Benning’s proffered testimony would have provided a strong alibi, and his testimony would have been consistent with a statement he gave police as an eyewitness after the shooting. The Appellate Division reversed and remanded for an evidentiary hearing on the Benning claim.

CLICK TO READ State of New Jersey v. Anthony Robinson, Docket # A-2347-22

Defendant was charged twenty-one times with a series of crimes between 2017 and 2021. On October 2, 2018, a grand jury charged defendant with first-degree robbery, N.J.S.A. 2C:15-1(a); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-5(b); and second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b). On January 30, 2019, another grand jury charged defendant with third-degree terroristic threats, N.J.S.A. 2C:12-3(a), and fourth-degree contempt of court, N.J.S.A. 2C:29-9(b). After failing to appear multiple times on the various charges, defendant was charged once again by a grand jury with six counts of contempt of court, N.J.S.A. 2C:20-2(a).

On September 27, 2021, prior to a scheduled trial, defendant pled guilty to third-degree unlawful possession of a handgun, N.J.S.A. 39-5(b)(1), and fourth-degree
contempt of court, N.J.S.A. 2C:29-9. The remaining charges, which had accumulated over the years, were dismissed.

Prior to sentencing, Defendant filed a motion to withdraw his guilty plea. One year later, he submitted an investigation report from a private investigator, who interviewed an inmate at a New Jersey prison who had exonerated Defendant, but refused to supply an affidavit unless he was paid. The trial court granted the motion, finding that the report represented a colorable claim of innocence. The State appealed.

The Appellate Division reversed, finding that the private investigator’s report was a bare assertion of innocence that was insufficient to justify withdrawal of a guilty plea. The unsworn claims of the inmate, embedded in the unsworn report, raised concerns of the report’s veracity and the veracity of its contents. The report was remanded for sentencing.

CLICK TO READ State of New Jersey v. Magdy Ghaly, Docket # A-1914-21

Defendant was convicted of Third Degree Theft by Failure to Make Required Disposition of Property Received, N.J.S.A. 2C:20-9. The evidence at trial established Defendant received and kept money from his insurance company for services a plastic surgeon provided to defendant’s son. After receiving a check from his insurance company, defendant tried to negotiate the fee with the surgeon, but the surgeon refused to accept anything less than the full amount of the insurance check. Defendant refused to pay over the money.

The State conceded that the evidence failed to establish the required ‘fiduciary-like’ relationship between defendant and the wronged party. As a result, the evidence was legally insufficient, and the conviction was reversed and the charge dismissed.

CLICK TO READ State of New Jersey v. William A. Brandon, Docket # A-2809-22

This is an interlocutory appeal by the State, from an Order denying the prosecutor’s in limine motion to admit into evidence portions of six telephone calls between defendant, William Brandon, and his friend, Abubakarr King. While incarcerated, King called defendant from a recorded line at Middlesex County Adult Correctional Facility. One of the cal ls occurred a few weeks before the murder of Raphael Edwards, for which defendant is being prosecuted. During that call, defendant said “[i]f I see [the victim], I’m knocking him out.” He continued, “I’m gonna do him dirty.” The remaining recorded conversations occurred after the murder. They discussed defendant’s relationship with the victim, accusations by others that defendant was involved in the murder, and aspects of the ongoing murder investigation by police.

(THIS IS WHY YOU SHOULD NEVER, EVER, EVER DISCUSS ANYTHING OVER THE JAIL PHONES)

After a N.J.R.E. 104 hearing, the trial court found the conversations “do not clearly constitute an admission or even implicate [defendant]” and “amount to general discussion of the unsolved crime and not admission(s) of guilt.” The court concluded, “the references to ‘street’ language and profanity seems unnecessarily prejudicial if played at trial.” On that basis, the court ruled that no portion of any of the recorded calls would be played to the jury.

The Appellate Division reversed and remanded. The Appellate Division held that the prejudice associated with defendant’s use of “street” language and profanity did not substantially outweigh the probative value of the conversations. The Court also held that the statements made on the recordings regarding threats of harm were relevant to prove the Defendant’s motive and intent.

CLICK TO READ State of New Jersey v. William Pittman, Docket # A-2309-20

A Woodbridge detective was on “proactive patrol” with another officer, meaning they were “driving around” in an unmarked car “looking for suspicious activity,” including drug deals “in progress.” They pulled into a convenience store parking lot and saw Defendant, who the detective knew from a prior arrest. The police parked behind Defendant’s car, and watched him get out of the car and take a plastic bag from the trunk, return to the driver’s seat, and a few minutes later he got out and put the bag back into the trunk. Twenty-five minutes later the police saw a man walk up and get into the passenger seat. As the detectives approached the car, they saw the passenger with cash in his hand. The detective called out “police” and showed his badge, and Defendant cursed and reached under his seat. The police drew their weapons, ordered both men out of the car, and and held them until a K-9 unit arrived. After the dog alerted to the presence of drugs, the detectives searched the vehicle and found cocaine in the center console and more drugs and paraphernalia in the trunk. Prior to that, the police had conducted surveillance of the Defendant for well almost two hours. Defendant was charged with drug possession and unsuccessfully moved to suppress before pleading guilty, but preserved his right to appeal.

While the appeal was pending, the New Jersey Supreme Court decided State v. Smart, 253 N.J. 156 (2023).

To overcome the presumption under both the United States and the New Jersey Constitutions that a warrantless search is invalid, the State must show by a preponderance of evidence that the search falls within one of the well-recognized exceptions to the warrant requirement. One such exception is the automobile
exception to the warrant requirement. In the Smart case, the Supreme Court held that under New Jersey law, probable cause to search a vehicle must arise from spontaneous and unforeseeable circumstances, not be developed by the police. As this case was almost indistinguishable from Smart, the motion to suppress was granted and the Indictment dismissed.

CLICK TO READ State of New Jersey v. Ervwakine B. Pryor, Docket # A-1888-19

Defendant was charged with Murder, Possession of a Weapon for Unlawful Purpose, Disturbing Human Remains, Animal Cruelty, and Certain Persons Not to Have Weapons. At the conclusion of the trial, the jury began deliberations and continued for approximately 3 hours before breaking for the day. The next day the jury asked for read-back of some testimony, but before the lunch break informed the court that it no longer wanted to listen to the read-back. An hour after the lunch break, the jury sent the court a note indicating that they were at a deadlock. The court instructed the jury to continue deliberating. The following day the jury resumed deliberations, and at 2:51 p.m. sent the court a note that stated “Juror No. 7 has just accused the rest of the jury of racism and is refusing to consider the evidence in the case.” The prosecution asked to voir dire the jurors individually to see whether the accusation was true, and the defense argued that the jury was tainted and requested a mistrial. The court agreed to voir dire the jurors, starting with Juror No. 7. The juror came into the courtroom and denied accusing the other jurors of racism, and further denied refusing to participate in considering the evidence. The court made no other inquiries regarding the accusations, but did ask what was going on in the jury room. The juror made it clear that he had a problem with the way the jurors were conducting deliberations. The court asked a confusing question as to whether the juror could continue to be fair and impartial, and the juror responded but the answer was not clear. When defense counsel asked to clarify, the court cut off the lawyer and answered that the juror could not be fair or impartial. When questioned further, the juror suggested that the other jurors were not being fair or impartial. The court then immediately excused the juror from further participation in the case without conducting any further inquiries. The trial court then brought the remaining jurors into the courtroom one by one. The court read each juror the jury’s earlier note to the court and told
each juror that Juror No. 7 had been removed from the case. The court asked if the juror could fairly and impartially deliberate with the remaining jurors and one of the alternate jurors. Each juror stated they could do so. The court did not ask any of the remaining jurors whether they heard Juror No. 7 accuse anyone of racism. Therefore, the court made no credibility findings concerning any of the remaining jurors. The defense renewed its motion for a mistrial, and the court seated an alternate juror and Defendant was convicted.

The Appellate Division reversed and ordered a new trial. A court may not discharge a juror because he or she disagrees with other jurors. However, a court may excuse a juror whose “emotional condition renders him or her unable to render a fair verdict.” The record must “adequately establish[]” the juror’s inability to
continue. In this case, the record did not establish that Juror No. 7 was unable to continue to serve. The lack of a record concerning the accusation of racism or refusal to participate did not establish cause to dismiss the juror. As a result, the court abused its discretion by discharging Juror No. 7 “under circumstances that bring into question the integrity of the jury’s deliberative function.”

New trial ordered.

CLICK TO READ State of New Jersey v. Javon C. Pittman, Docket # A-3898-19

Defendant was charged with first-degree murder and other offenses following an altercation with Kevinray Hall during which Hall was shot with a gun and subsequently died. After being convicted of the lesser-included offense of passion/provocation manslaughter and unlawful possession of a gun, defendant raises multiple issues on appeal regarding the trial proceedings and his sentence. Because the trial court did not make any factual findings regarding the inconsistency of prior statements made by the only eyewitness to the events — Andrae Vogleson — nor did it conduct a Gross hearing to evaluate the reliability of the prior statements, the Appellate Division reversed and remanded for a new trial.

A Gross hearing is a “hearing that the trial court conducts to determine the admissibility of a witness’s inconsistent out-of-court statement—offered by the party calling that witness— by assessing whether the statement is reliable.” State v. Greene, 242 N.J. 530, 540 n.2 (2020). The hearing takes place “outside of the jury’s presence,” and the judge must “consider[] a number of factors ‘to determine whether the statement was made or signed under circumstances establishing sufficient reliability that the factfinder may fairly consider it as substantive evidence.'”

In addition, the trial court failed to provide the jury with a limiting instruction on the proper use of defendant’s prior convictions.

New trial ordered.