New Jersey Criminal Caselaw Roundup with Steven J. Gaitman – July 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

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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 aggravating factors, mitigating factors, First Degree Murder, Unlawful Possession of a Weapon, self defense, First Degree Aggravated Manslaughter, Third Degree Assault by Auto, Leaving the Scene of an Accident, Driving Under the Influence, Pre-Trial Intervention, Burglary, Interstate Detainer, Speedy Trial, exclusion of defense evidence, lay opinion testimony, anonymous tip, reasonable suspicion, suppression, compel discovery, Brady material, Giglio material, impeachment, ineffective assistance of counsel, post conviction relief 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. Rami A. Amer, Docket #A-9-22

The trial court did not violate defendant’s speedy trial rights under the Interstate Agreement on Detainers, and it properly denied defendant’s motion to dismiss his indictment. The Court does not agree with the Appellate Division that defense counsel waived defendant’s rights under the IAD. But the Court affirms the Appellate Division’s other determinations — that the IAD’s 180-day time period was tolled during the pendency of defendant’s pretrial motions and that defendant was “brought to trial” when jury selection began prior to the deadline.


CLICK TO READ State of New Jersey in the Interest of M.P., a minor, Docket # A-1226-22

M.P., a juvenile, is charged with gun possession and participation in a murder.  He appeals the trial judge’s decision to admit the statement he gave to detectives during a stationhouse interrogation, which was attended by his mother.  M.P. asks the court to adopt a new categorical rule that would prohibit police from conducting a stationhouse interrogation of a juvenile unless the minor has consulted with an attorney.  M.P. relies on neuroscience and behavioral science research that shows juveniles are not only more impulsive and compliant than adults but also tend to lack the cognitive skills to comprehend Miranda rights.  He contends that in view of advances in the scientific understanding of adolescent brain development, no juvenile should be subjected to a stationhouse interrogation—with or without parental participation—until the juvenile has consulted with counsel.

The court explains it has no authority to pronounce any such per se requirement.  While acknowledging there have been significant reforms to New Jersey’s juvenile justice system in recent years based on scientific research on how a juvenile’s brain develops and how it functions differently from a fully mature adult brain, the court holds those studies do not grant it authority to substantially rework the State’s juvenile interrogation jurisprudence, and certainly not to overturn New Jersey Supreme Court precedents.  The court concludes that while the rules and principles announced in those precedents are not immutable, it is for our Supreme Court and the Legislature—not an intermediate appellate court—to weigh the benefits and costs of the major juvenile justice system policy shift M.P. proposes.

The court also declines M.P.’s request to revise the Miranda warnings to make them more comprehensible to adolescents.  While noting the current warnings are not sacrosanct and might be improved based on juvenile brain research, the court concludes the task of revising the warnings to address the inherent differences between adults and juveniles would benefit from a collaborative process the court cannot provide.

Turning to the application of existing precedents to the present case, although the court is mindful of the deference it owes to the trial judge’s factual findings, it concludes that considering all relevant circumstances, including M.P.’s intellectual challenges, mental conditions, highly emotional state, and the role his mother played, the State failed to prove beyond a reasonable doubt that M.P. knowingly, intelligently, and voluntarily waived his right against self-incrimination.  The court therefore reverses the trial judge’s decision.

The court rejects the State’s argument that reviewing courts should not consider an interrogee’s personal characteristics, such as intelligence and education background, if those circumstances were not known by or “noticeable” to police.  The court holds those circumstances remain relevant notwithstanding they may not manifest outwardly during an interrogation.  The court explains that reviewing courts do not employ a purely objective test when determining whether the State proved a valid Miranda waiver beyond a reasonable doubt, but rather consider the characteristics of the accused and not just the details of the interrogation.  

The court also rules the guidance the Supreme Court provided in State in Int. of A.A., 240 N.J. 341, 354 (2020)—which held police should provide an opportunity for a juvenile and parent to consult privately after Miranda warnings are given—did not mandate a new rule of police procedure but rather amplified the existing totality-of-the-circumstances test.  Accordingly, the court reasons the rationale undergirding A.A. should be given retroactive effect.

CLICK TO READ State v. Shadi Allie, Docket # A-0082-22

Detective Silvestre, during an “ILP detail” aimed at addressing crimes at a service area, observed a silver Dodge Caravan with Illinois plates and tinted windows parked across two spaces. He claimed to see two Black women inside, with the front seat passenger (defendant) allegedly preparing a marijuana cigarette. Silvestre approached the van, and the smell of marijuana became apparent. After confirming that none of the occupants had a medical marijuana card, the officers removed everyone from the vehicle and conducted a search, finding marijuana, crack cocaine, and a handgun with no magazine.

On cross-examination, the detective asserted his ability to identify a marijuana cigarette from a distance based on his training and experience. He admitted to not knowing how hand-rolled tobacco cigarettes are prepared and acknowledged that he had never seen someone hand-roll a tobacco cigarette.

The defense argued that the state failed to prove a parking violation and contended that observing someone using rolling papers, a legal item, did not provide reasonable suspicion of a crime. The court disagreed and concluded that the detective had reasonable suspicion to conduct an investigatory stop based on the alleged parking violation and the detective’s belief that defendant was rolling a marijuana cigarette.

The appellate court found merit in the defense’s arguments. First, it noted that the judge failed to identify the statute governing double-parking, which raised questions about whether an actual violation occurred. Second, the court found that the mere observation of someone using rolling papers, a legal item, did not provide reasonable and particularized suspicion of criminal activity.

In summary, the appellate court found that the detective’s actions lacked a valid basis for an investigatory stop. The alleged parking violation was not adequately supported, and the observation of rolling papers did not constitute reasonable suspicion. Consequently, the Appellate Division reversed the denial of suppression.

CLICK TO READ State v. Shem C. Jenkins, Docket # A-2367-21

Defendant was arrested and charged with a hit-and-run of a bicyclist after police found his car with matching damage.  After defendant refused blood alcohol tests, a warrant was obtained, and a test indicated he had a .187% blood alcohol concentration.  He was charged with Third Degree Assault by Auto and Third Degree Leaving the Scene of an Accident Resulting in Serious Injuries.  Defendant and the State worked out a plea agreement but specifically allowed Defendant to first apply to Pre-Trial Intervention and to accept the plea bargain if PTI were unsuccessful.  Defendant was accepted to PTI, but the prosecutor filed an objection to PTI.  The trial court entered an order and eight-page written decision granting defendant’s motion to be admitted into PTI, finding that the prosecutor abused its discretion in denying Defendant’s admission into PTI.  The State appealed, arguing that the court should have determined whether the prosecutor’s denial was a patent and gross abuse of discretion.  The Appellate Division agreed, and remanded for a full consideration and the court to apply the correct standard in determining the PTI application.  Order reversed and remanded.

CLICK TO READ State v. Darrell R. Crone, Docket # A-3120-20

Appeal of an order summarily denying a petition for post-conviction relief without a hearing.  The Appellate Division reversed and remanded for a limited evidentiary hearing based on several claims supported by sworn affidavits.  Defendant claimed in the motion that counsel rendered ineffective assistance by failing to move to suppress an eyewitnesses out-of-court identification, request lesser included offenses, and introduce into evidence the eyewitness’ prior inconsistent statements; object to a police officer’s narration of video footage, and other shortcomings.  In support of the motion, Defendant submitted affidavits of witnesses that gave an alternative version of events of the night in question.

Case remanded for evidentiary hearing on some claims.

CLICK TO READ State v. Adam Brensinger, Docket # A-3088-21

The State appealed from an order dismissing a charge of Disorderly Persons Contempt of Domestic Violence Restraining Order finding that the charge was de minimis.  The Appellate Division reversed and reinstated the charge, finding that Defendant’s attempt to join the complainant’s LinkedIn network on social media was a violation.  Domestic violence restraining orders prohibit abusers from having contact or communications with their victims to protect the victims.  When defendant sought to communicate with R.P., he was engaged in precisely the type of activity that the  Act is designed to prevent.  Any type of communication should not be presumed trivial because ultimately that communication must be evaluated in light of the victim’s fear and the turmoil she or he has experienced.  It did not matter that the communication did not threaten any harm.  Order reversed.

CLICK TO READ State v. Richard G. Perry, Docket # A-0919-20

In June 2017, Richard Perry was indicted on three counts, including two second-degree sexual assault charges and one count of endangering the welfare of a child. Following a jury trial, he was convicted on all counts and received an eight-year prison sentence with an eighty-five percent parole ineligibility period, Parole Supervision for Life, and Megan’s Law requirements. The charges stemmed from allegations by an eleven-year-old, referred to as Z.H., who claimed that Perry touched her inappropriately while she slept at his house. The State presented Z.H.’s testimony, her hearsay statements describing the incident under the “tender years” exception to the hearsay rule, and an audio recording of a conversation between Z.H.’s aunt and Perry. Perry’s attempt to introduce evidence of previous abuse by Z.H.’s father under the Rape Shield Law was unsuccessful.  The Appellate Division held that the evidence of prior sexual abuse by Z.H.’s father was improperly excluded and lay opinion testimony interpreting defendant’s statements during the consensual recording was improperly admitted.  As a result, the convictions were reversed and a new trial was ordered.

CLICK TO READ State v. Robert Domingo, Docket # A-2809-19

Defendants Robert Domingo and Dommenique Mignon were indicted in Middlesex County on various charges, including conspiracy, burglary, theft, possession of weapons, and drug possession. Both defendants were charged separately, and Domingo joined Mignon’s pre-trial motion to suppress evidence obtained during a police stop and subsequent search of Mignon’s car. The motion was denied, and both defendants went to trial. Domingo was found guilty of conspiracy, burglary, theft, unlawful possession of a weapon, and possession of a weapon for unlawful purposes, while he was acquitted of other charges. Additionally, he was convicted of a certain persons offense in a separate trial.

During the suppression hearing, defense counsel initially agreed to stipulate to the facts presented by the State regarding a motor vehicle stop based on an anonymous tip. However, later, the defense expressed disagreement with the State’s assertion that the tipster’s identity was known to the police. A motion was made to suppress evidence obtained during the stop, and an evidentiary hearing was scheduled.

At the hearing, Detective Christopher Sorber testified that an officer received a phone call from the tipster, Netanel Weiss, who was known to the police but wished to remain anonymous. Weiss informed the police that the defendants had just committed a burglary, were in possession of stolen items, and were driving a specific vehicle to fence the stolen goods. Sorber and another officer spotted the mentioned vehicle while en route to the purported burglary location, leading to a motor vehicle stop.

During cross-examination, Sorber could not recall specific details about how Weiss obtained information about the burglary or how reliable Weiss was as an informant. Sorber acknowledged that Weiss had a criminal background but believed him to be reliable based on his general experience with criminal informants.

Weiss and another officer were subpoenaed as witnesses but did not testify. The judge, in her ruling, found Sorber’s testimony credible but noted that important details about Weiss’s reliability and the basis of his knowledge were missing. Despite these gaps, the judge determined that the totality of the circumstances, including the specific information provided by Weiss and Sorber’s experience with criminal informants and the defendants, justified the motor vehicle stop as reasonable.

The judge denied the motion to suppress, finding the tip established reasonable suspicion to stop the vehicle because the tipster was a known police informant and had details that would have been difficult to know unless he had personal knowledge of defendant’s involvement in criminal activity.

The Appellate Division reversed and granted suppression, finding that the information provided by the tipster was legally insufficient to justify reasonable suspicion and a stop of the vehicle.  The illegality of the stop voids the subsequent consent Mignon had supplied to the officers before they searched the car.

CLICK TO READ State v. Donald F. Burke, Sr., Docket # A-0503-22

Defendant was involved in a verbal altercation with the complainant and his friend, arising from an ongoing property dispute between the parties and various family members. A police officer arrived at the scene in response to the complaint but found no mention of traffic violations in the statements given by the individuals involved. The officer concluded that it was a “civil issue” and took no further action. A month later, the complainant filed a complaint against defendant, alleging traffic violations related to the dispute.

Defendant pleaded not guilty and requested discovery, including the complainant’s employment and disciplinary records with the New Jersey State Police (NJSP), as well as related criminal records. When these records were not provided, defendant filed a motion to compel their disclosure, which the court denied. Defendant then appealed the decision.

The Appellate Division determined that the complainant’s employment, disciplinary, and criminal records were relevant to the pending action. Such records are essential for assessing the credibility of a state’s witness, especially when that witness’s testimony could impact the determination of guilt or innocence. As the charging individual and the sole State witness, the complainant’s credibility and the accuracy of his account of the incident, including the circumstances under which he took photographs, were crucial to the case’s outcome regarding the alleged violations. Furthermore, the prosecutor had an obligation to gather and disclose any relevant Brady/Giglio material from the State’s testifying witness, even if it was not in the prosecutor’s file.

Order reversed, discovery granted and compelled.

CLICK TO READ State v. Noah A. Hill, Docket # A-2119-21

Defendant Noah A. Hill appealed the denial of his motion to suppress evidence obtained during a warrantless search, which led to his guilty plea for unlawful possession of a handgun. The search was based on a Terry stop, supposedly prompted by a tip from a confidential informant. The Court reversed the denial of the motion to suppress.

The only testimony during the suppression hearing was given by a Jersey City police officer with about two and a half years of experience in the street crimes unit. The officers were dispatched to an area based on information they received from Detective Seals, who had received it from Detective Sheehan, who, in turn, obtained it from a confidential informant. The testifying officer had no knowledge of the informant and had no additional information about the tipster.

Upon arriving at the scene, the officers spotted defendant, a Black man wearing a gray GAP sweatshirt with a ski mask rolled up on his head, leaning against a car. While defendant’s actions did not appear illegal, the officers approached him because he matched the description provided in the tip. Defendant’s conduct included briefly turning away and lowering his hands, which prompted the officers to grab him immediately. During the ensuing pat-down, a semi-automatic handgun was found in defendant’s waistband.

The trial court ruled in favor of the State, finding that defendant’s actions constituted unusual movement and that, when combined with the corroborated physical description and location, justified the pat-down search. However, the Court disagreed with this assessment, emphasizing that the anonymous tip, similar to the one in Florida v. J.L., did not provide the officers with reasonable suspicion.

The Court’s decision in J.L. held that an anonymous tip about a person carrying a gun, without additional corroborative information, does not justify a Terry stop. In this case, the Court found that defendant’s actions and the anonymous tip did not provide the officers with sufficient grounds for reasonable suspicion. Defendant’s movements alone did not warrant a pat-down search.

The Court underscored that Terry stops should not be based solely on the report of an unknown, unaccountable informant. While defendant’s behavior combined with the tip might have justified an approach for questioning, it did not meet the threshold for reasonable suspicion required for a Terry stop. Therefore, the denial of defendant’s suppression motion was reversed, and the case was remanded for further proceedings.

The Court clarified that people should generally be free to go about their business without unwarranted government interference, highlighting the essence of the Fourth Amendment. The decision underscores the requirement for particularized suspicion before law enforcement can detain individuals.  Reversed and remanded.

CLICK TO READ State v. Virginia A. Vertetis, Docket # A-1075-21

Defendant shot and killed her former boyfriend out of jealousy because he dated multiple women.  Defendant initially claimed she shot decedent in self-defense after he had assaulted and threatened to kill her in her home.  After a month-long jury trial, the jury rejected her self-defense claim and she was convicted of First Degree Murder and Unlawful Possession of a Weapon.  The court found the aggravating factors outweighed mitigating factors and sentenced her to thirty years imprisonment.  Her conviction and sentence were reversed after her first appeal.  She then pled guilty to First Degree Aggravated Manslaughter in exchange for a 20-year sentence, and reserved the right to argue for a lesser sentence.  At sentencing, Defendant argued there were mitigating factors # 3 (defendant acted under a strong provocation), # 4, (substantial grounds tending to excuse or justify the conduct), and # 5, (the victim induced or facilitated the conduct) among others.  The defense also presented extensive mitigation evidence.  The court sentenced her to 20 years imprisonment.  The court found Aggravating Factor Three applied based on trial testimony.  However, the finding was unsupported by competent evidence and there was no logical basis for the court to find that Defendant had a premeditated plan to shoot the decedent and stole his gun to do it.  As a result, the sentence was vacated and case remanded to be heard before a different judge for a new sentencing.


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aggravating factors, mitigating factors, First Degree Murder, Unlawful Possession of a Weapon, self defense, First Degree Aggravated Manslaughter, Third Degree Assault by Auto, Leaving the Scene of an Accident, Driving Under the Influence, Pre-Trial Intervention, Burglary, Interstate Detainer, Speedy Trial, exclusion of defense evidence, lay opinion testimony, anonymous tip, reasonable suspicion, suppression, compel discovery, Brady material, Giglio material, impeachment, ineffective assistance of counsel, post conviction relief

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