New Jersey Criminal Caselaw Roundup with Steven J. Gaitman – August 31, 2023

Steven J. Gaitman, Esq.

Steven J. Gaitman, Esq.

Steven J. Gaitman, a former New York public defender with 25 years of experience in criminal law, is a partner at Gaitman & Russo, LLP.  Mr. Gaitman is licensed in New York, New Jersey and Federal courts.  The firm focuses its practice in Federal and State criminal defense, criminal appeals, and post-conviction relief.  He can be reached directly at 877-707-5659 or at

New Jersey Supreme Courthouse # 2 (from court website)

In today’s New Jersey Criminal Caselaw Roundup we’ll be discussing the latest in developments of New Jersey criminal law, criminal appeals, and post-conviction relief.

Cases we’ll cover include in-person interpreter, video remote interpreting, aggravated manslaughter, mistrial, bribery, Residential Treatment Program, Earn Your Way Out Act, lay opinion, video narration, expert testimony, rule of thumb, first-time in court identification, wiretap, electronic eavesdropping, marital communication, marital privilege, Second Amendment, motion to suppress, knock-and-announce, search warrant and more.

The New Jersey Criminal Caselaw Roundup is a blog and video podcast by criminal defense and appeals lawyer and Steven J. Gaitman summarizing the latest developments in criminal law, criminal appeals, and post-conviction relief in the State of New Jersey.  Each week we digest the latest reversed convictions from the New Jersey Supreme Court and the New Jersey Appellate Division, as well as the United States Court of Appeals and the United States Supreme Court.

This is a FREE service designed to give you the cutting edge of developments in New Jersey criminal law, appeals, and post-conviction relief.

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CLICK TO READ State v. Oscar R. Juracan-Juracan, Docket # A-32-22

The Court considers a question of first impression — whether a criminal defendant must be provided in-person interpreting services, rather than video remote interpreting (VRI) services, at his jury trial. In a criminal jury trial, there is a presumption that foreign language interpretation services will be provided in person, which is consistent with the New Jersey Judiciary’s longstanding practice. The Court sets forth guidelines and factors to assist trial courts in deciding whether VRI should be used during criminal jury trials, and it remands the matter for the trial court to reconsider whether VRI is appropriate in the current case after assessing those factors.

CLICK TO READ State v. Stephen A. Zadroga, Docket # A-22-22

The trial court did not abuse its discretion in finding manifest necessity justified a mistrial here. As the Appellate Division held, the State can present the counts of aggravated manslaughter and death by auto to a new grand jury based solely on the reckless driving evidence, without any evidence on intoxication.

CLICK TO READ State v. Jason M. O’Donnell, Docket # A-17-22

The bribery statute applies to any “person” who accepts an improper benefit — incumbents, candidates who win, and candidates who lose. N.J.S.A. 2C:27-2. The statute also expressly states that it is no defense to a prosecution if a person “was not qualified to act.” Ibid. So even if a candidate is unable to follow through on a corrupt promise, the language of the bribery statute makes it a crime to accept cash payments for a promise of future performance. The bribery statute’s history, relevant caselaw, and commentary from the Model Penal Code, on which the statute is modeled, confirm that the law extends to candidates.

CLICK TO READ Leander Williams v. New Jersey State Parole Board, Docket # A-26-22

The Parole Board cannot mandate participation in an Residential Treatment Program for inmates administratively paroled under the Earn Your Way Out Act (EYWO Act), N.J.S.A. 30:4-123.55b to .55f.. Although N.J.S.A. 30:4-123.59 generally authorizes the Parole Board to impose parole conditions on adult inmates who have been administratively released under the EYWO Act, an RTP is not among the conditions that can be imposed in that setting.

CLICK TO READ State v. Dante C. Allen, Docket # A-55-21

In this appeal, the Court considers whether defendant Dante Allen was denied a fair trial because the trial court permitted a detective to present lay opinion testimony in which he narrated a video recording.  The Court disagrees with the Appellate Division’s conclusion that the trial court should have excluded all the detective’s narration of the surveillance video. The trial court properly permitted the detective to testify about the manner in which he used the surveillance video to guide his investigation. Applying principles stated today in State v. Watson, _ N.J. _ (2023) (slip op. at 46-60), the detective’s testimony opining that the video showed defendant turning and firing his weapon should have been excluded from evidence. However, that error was harmless given the strength of the State’s evidence.

CLICK TO READ State v. Roberson Burney, Docket # A-14-22

In this appeal, the Court considers whether it was cumulative error for the trial court to admit two pieces of evidence:  expert testimony that defendant Roberson Burney’s cell phone was likely near a crime scene based on a “rule of thumb” approximation for cell tower ranges in the area, and a first-time in-court identification of defendant by a witness who had previously identified another person as the perpetrator in a photo lineup.  On December 25, 2015, Rosette Martinez was at home with her daughter, Samantha, and Samantha’s friend, when she heard footsteps coming up the stairs.  She testified that a man opened the door and stated, “I’m here for your dad, George,” leading her to believe he was there to fix something at the house.  Martinez believed she recognized the intruder as someone who had recently done contracting work on their house.  He then pulled out a “long gun,” instructed the women to lay face down, tied their hands behind their backs, and began to rifle through possessions.  At some point during the robbery, the women heard the intruder’s phone ring and announce a “[c]all from” a name.  Samantha testified that she heard the intruder’s phone announce an “incoming text” message from a name she did not recognize, but the message was not read aloud.  All three women testified that they heard clicking noises that indicated to them that the intruder was taking pictures with his phone.  After the intruder left, the women untied themselves and called 911 at approximately 8:15 p.m.  The victims described the intruder and his clothes to the police.  A detective spoke to Rosette’s parents; they provided the name and business card of the contractor, Mark Burney, who had worked on their house a few weeks prior to the robbery.  Mark Burney is defendant’s brother, and he stated that defendant had been working with him at Rosette Martinez’s home.  On December 26, Rosette Martinez misidentified a filler photo in a photo array with 90 percent certainty.  She declined to make an identification during a second photo array, which included a photo of defendant, on December 28.

The day after the robbery, Martinez noticed that among the bags in the stairway to her apartment, there was a Costco bag she did not recognize.  That bag was later found to have defendant’s DNA on it.    On December 29, police visited defendant.  While questioning him, a detective sent a text message to defendant’s phone, which gave an audible voice announcement of a “text message received” from the detective’s phone number and read the message out loud.  The detective then obtained a warrant and arrested defendant.  Police collected his clothing, which matched the victims’ description.  Defendant’s cell phone records showed that he received a text message while the robbery was in progress.  Additionally, defendant’s phone included several blurry, dark pictures taken at 8:03 p.m. on December 25.  Police also found several photographs of a “Princess” brand watch on defendant’s cell phone captured in the days after the robbery, and four web searches for “Princess” watches.  On January 21, 2016, Martinez returned to the police station.  A detective told her that defendant had been arrested for the robbery and that police seized his cell phone, which contained pictures of jewelry and a watch.  The detective showed her one of the pictures of the watch, and she identified it as hers.  She later provided the box for the watch, containing additional watch bands, to prove the watch was hers.   Defendant was indicted on several counts.  Prior to trial, defense counsel moved to exclude testimony by the State’s expert, Federal Bureau of Investigation Special Agent Ajit David, and any first-time in-court identification of defendant by any of the victims.  The trial court denied both motions.  At trial, Rosette Martinez identified defendant as the intruder for the first time, pointing him out in the courtroom.  And Special Agent David gave his expert opinion that the cell towers in the area had an approximate coverage radius of about one mile — an estimate that reflected his “rule of thumb” for the area, which he stated was a “good approximation” based on his training and experience.  Based on that “rule of thumb,” he placed defendant’s cell phone at or near the crime scene at the time of the robbery, emphasizing that it was “highly, highly unlike[ly]” that a cell tower defendant’s phone had pinged at 8:02 p.m. did not cover the crime scene.  Defendant was convicted of robbery and other offenses.

The Appellate Division affirmed as to both Special Agent David’s testimony and the first-time in-court identification.  471 N.J. Super. 297, 304-05 (App. Div. 2022).  The Court granted certification.  252 N.J. 134 (2022).

The Supreme Court held that the trial court erred in admitting both the testimony placing defendant’s phone at or near the crime scene and the first-time in-court identification.  Those errors, in combination, deprived defendant of a fair trial. Reversed and remanded for a new trial.

CLICK TO READ State v. Quintin D. Watson, Docket # A-23-22

This appeal raises two principal issues:  (1) the propriety of “first-time in court identifications” — that is, in-court identifications that are not preceded by a successful out-of-court identification — and (2) the extent to which investigators may narrate video recordings.  Defendant Quintin Watson was convicted of bank robbery based on evidence that included testimony from a teller, who identified defendant for the first time in court, and from the lead detective, who narrated a bank surveillance video for the jury.  The lead detective also testified about consulting with other law enforcement agencies regarding defendant, and the propriety of that testimony under the Confrontation Clause is a third issue here. In January 2017, an individual wearing a baseball cap and gloves robbed a bank in North Brunswick.  After entering the bank, he put a note on the counter that read, “everything now”; he left with the $5,772 he received.  Bank surveillance footage captured the entire 57-second robbery. 

In November 2017, defendant was charged in three other robberies after his former girlfriend, “Joan,” identified him in a wanted photo from one of those robberies.  After the office investigating the other robberies notified the North Brunswick Police Department about defendant, he became a suspect in the North Brunswick robbery as well.  In September 2018, a detective showed the teller six photos, one at a time, and asked if he could identify the person who robbed the bank.  The teller picked a photo of someone other than defendant and said at trial that he was 75-90 percent sure of the identification. At trial, the prosecutor asked the teller if he could identify the robber in court.  The teller identified defendant, who was seated in between his lawyers at counsel table.  The teller said he was “maybe like . . . 80 percent” sure.  The prosecution did not provide advance notice of the in-court identification, and defense counsel did not object to it.  During cross-examination, the teller revealed that he had met with the prosecutor prior to trial and that the prosecutor had “informed [him] that the individual who was accused of committing this robbery is in court seated at the defense table.”  Joan also testified at trial.  She was shown two still photos from the bank surveillance video and testified she was 100 percent positive that each depicted defendant.

Sergeant Frank Vitelli, Jr., testified about the investigation.  Over objection, Sergeant Vitelli narrated the bank surveillance video.  The prosecutor asked a series of questions while the video was played for the jury, ranging from general inquiries — “What do you see?” — to specific ones — “With what [did he open the door]?”  The more open-ended questions invited and led to more open-ended narrative responses.  Sergeant Vitelli also testified about how his department learned about defendant.  He confirmed that he had been “contacted by another law enforcement agency regarding” defendant, and that he “consult[ed] with that law enforcement agency . . . after which criminal complaints were signed against” defendant.  The jury found defendant guilty of robbery.  The Appellate Division affirmed his conviction, 472 N.J. Super. 381, 404 (App. Div. 2022), and the Court granted certification, 252 N.J. 598 (2022). 

HELD:  (1) Based on the identification evidence alone, defendant’s conviction cannot stand.  The inherently suggestive nature of first-time in-court identifications, conducted in front of a jury, risks depriving defendants of their due process rights.  The Court holds that first-time in-court identifications may only be conducted when there is good reason for them and sets forth certain practices that must be observed in connection with in-court identifications.  (2) The narration evidence in this case also ran afoul of the evidence rules, which do not allow for continuous, running commentary on video evidence by someone who has merely studied a recording.  The Court identifies certain safeguards to underscore the limited use of narration evidence and adds that a party intending to present narration evidence should provide opposing counsel with a written summary of the proposed testimony before trial.  (3) Confrontation Clause challenges are fact-specific.  The testimony here about consultation with other law enforcement agencies violated defendant’s right to confrontation, and the Court provides guidance for remand.


CLICK TO READ State v. Dennis F. Gargano, Jr. and Clarence D. Grant, Docket # A-1230-22

During the investigation of an alleged drug distribution network, the State Police obtained wiretap orders authorizing the interception of communications on various cellular phones pursuant to the New Jersey Wiretapping and Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to -37.  By leave granted, the State challenged an order suppressing all intercepted communications that followed the interception of a privileged marital communication between one of the defendants and his codefendant spouse.  The trial court entered the order under N.J.S.A. 2A:156A-21, which in pertinent part mandates the suppression of “the entire contents of all intercepted wire, electronic[,] or oral communications obtained during or after any interception” that is “unlawfully intercepted” or “not made in conformity with” the wiretap order or authorization.  N.J.S.A. 2A:156A-21(a) and (c).

The court affirms the order based on its interpretation of the Act.  The State concedes that at the time of the interception of the initial privileged marital communication, N.J.R.E. 509 did not include a crime-fraud exception, and, as a result, the initial and subsequent 305 intercepted privileged marital communications are inadmissible at defendants’ trial under the then-extant version of N.J.R.E. 509.  The State argues interception of the initial privileged marital communication did not trigger the mandatory suppression of all subsequent wiretap interceptions during the investigation under N.J.S.A. 2A:156A-21 because interception of the privileged marital communication was neither unlawful nor made in violation of the wiretap orders.

The court concludes that not every interception of a privileged marital communication is unlawful and requires application of N.J.S.A. 2A:156A-21’s suppression remedy.  The court finds incidental interceptions of privileged communications during the mandatory intrinsic minimization process attendant to the execution of every wiretap order are anticipated by, and authorized by, the Act, and do not trigger N.J.S.A. 2A:156A-21’s suppression remedy.

The court holds that, because the State Police knew the initial interception was of a communication between married spouses, made no effort to minimize the interception, and monitored the communication beyond the time necessary to determine if it was privileged, the interception was unlawful under the Act and violated the wiretap order, which expressly required minimization.  The court rejects the State’s argument suppression is not required because the initial marital communication, and the 305 subsequent marital communications, were intercepted based on the good faith but erroneous belief the crime-fraud exception recommended by the Court in State v. Terry, 218 N.J. 224 (2014), and later enacted, N.J.S.A. 2A:84A-22(2)(e), L. 2015, c. 138, § 2, eff. Nov. 9, 2015, would apply retroactively such that the interceptions would be supported on that basis.

CLICK TO READ State v. Daandre J. Wade, Docket # A-2377-22, A-2378-22

In May 2019, defendants were found in possession of two loaded handguns while driving a car on public roads.  Neither defendant had a permit to carry a handgun.  Both defendants were indicted for second-degree unlawful possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b)(1).  Following the United States Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022), defendants moved to dismiss those criminal charges, arguing that the version of the gun-carry permit statute in effect at the time of their arrest, N.J.S.A. 2C:58-4 (2018), was facially unconstitutional under Bruen.  The trial court agreed and dismissed the charges.  This court granted the State leave to appeal the order.

The court holds that defendants did not have standing to challenge the gun permit statutes because neither defendant had applied for a handgun-carry permit. Nevertheless, the court addresses the merits of the constitutional challenge and holds that the justifiable need requirement in N.J.S.A. 2C:58-4(c) (2018) was severable and the remaining provisions of N.J.S.A. 2C:58-4 (2018), as well as N.J.S.A. 2C:39-5(b)(1), were constitutional and enforceable.  Accordingly, the court reverses the order dismissing the charges and remands with direction that the trial court reinstate both counts of unlawful possession of a handgun without a permit.

CLICK TO READ State v. Tyshon M. Nieves, Docket # A-3379-21

In this appeal from an order denying defendant’s motion to suppress evidence seized following the 5:00 a.m. execution of a knock-and-announce search warrant at a residence, the court finds the law enforcement officers did not wait a reasonable period after knocking and announcing their presence before forcibly breaching and entering the home’s front door.  The court determines that based on the circumstances presented, the officers’ forcible entry into the home after waiting less than five seconds after knocking and announcing their presence was unreasonable and rendered the subsequent search of the home and seizure of evidence unconstitutional.  The court determines the exclusionary rule requires suppression of the evidence, reverses the order denying the suppression motion, and remands for further proceedings.


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in-person interpreter, video remote interpreting, aggravated manslaughter, mistrial, bribery, Residential Treatment Program, Earn Your Way Out Act, lay opinion, video narration, expert testimony, rule of thumb, first-time in court identification, wiretap, electronic eavesdropping, marital communication, marital privilege, Second Amendment, motion to suppress, knock-and-announce, search warrant

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