Justia Criminal Law Opinion Summaries

In these consolidated appeals, the Supreme Court considered whether "Padilla v. Kentucky" (130 S.Ct. 1473 (2010)) could be applied retroactively on collateral review, and whether defendants' attorneys were ineffective under "State v. Nunez-Valdez" (200 N.J. 129 (2009)). In 2004, Defendant Frensel Gaitan was indicted for multiple possession of a controlled dangerous substance (CDS) and distribution charges. He pled guilty to the charge of third-degree distribution of a CDS within one thousand feet of a school in 2005, and was sentenced to five years’ probation. Gaitan did not file a direct appeal. In 2008, based on the drug conviction, a removable offense, Gaitan was removed. He thereafter filed a PCR petition alleging ineffective assistance of counsel. Although Gaitan had responded "yes" to Question 17 on the plea form, which asked "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty," he asserted that counsel failed to warn him that his plea carried with it potential immigration consequences. In 2007, Defendant Rohan Goulbourne was indicted on multiple CDS possession and distribution charges. He agreed to plead guilty to one count of possession of a CDS with intent to distribute within one thousand feet of a school. The prosecutor, in return, recommended a sentence of three years' imprisonment with a fifteen-month period of parole ineligibility. At a March 2008 plea hearing, both defense counsel and the court informed Goulbourne that he "may very well" be deported as a result of the plea. The court also noted that Goulbourne answered all the questions on the plea form, which included Question 17, and that he signed the form after reviewing it with his attorney. Satisfied that Goulbourne knowingly and voluntarily was pleading guilty, the court accepted the plea. The court imposed the recommended sentence, and Goulbourne did not appeal. Upon review, the Supreme Court concluded that "Padilla" represented a new constitutional rule of law that for Sixth Amendment purposes, was not entitled to retroactive application on collateral review. Although "Nunez-Valdez" governs the standard of attorney performance in these cases, the Court concluded Defendants were not entitled to relief under that decision because neither was affirmatively misadvised by their counsel, nor did they establish prejudice.

In these consolidated appeals, the Supreme Court considered whether "Padilla v. Kentucky" (130 S.Ct. 1473 (2010)) could be applied retroactively on collateral review, and whether defendants' attorneys were ineffective under "State v. Nunez-Valdez" (200 N.J. 129 (2009)). In 2004, Defendant Frensel Gaitan was indicted for multiple possession of a controlled dangerous substance (CDS) and distribution charges. He pled guilty to the charge of third-degree distribution of a CDS within one thousand feet of a school in 2005, and was sentenced to five years’ probation. Gaitan did not file a direct appeal. In 2008, based on the drug conviction, a removable offense, Gaitan was removed. He thereafter filed a PCR petition alleging ineffective assistance of counsel. Although Gaitan had responded "yes" to Question 17 on the plea form, which asked "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty," he asserted that counsel failed to warn him that his plea carried with it potential immigration consequences. In 2007, Defendant Rohan Goulbourne was indicted on multiple CDS possession and distribution charges. He agreed to plead guilty to one count of possession of a CDS with intent to distribute within one thousand feet of a school. The prosecutor, in return, recommended a sentence of three years' imprisonment with a fifteen-month period of parole ineligibility. At a March 2008 plea hearing, both defense counsel and the court informed Goulbourne that he "may very well" be deported as a result of the plea. The court also noted that Goulbourne answered all the questions on the plea form, which included Question 17, and that he signed the form after reviewing it with his attorney. Satisfied that Goulbourne knowingly and voluntarily was pleading guilty, the court accepted the plea. The court imposed the recommended sentence, and Goulbourne did not appeal. Upon review, the Supreme Court concluded that "Padilla" represented a new constitutional rule of law that for Sixth Amendment purposes, was not entitled to retroactive application on collateral review. Although "Nunez-Valdez" governs the standard of attorney performance in these cases, the Court concluded Defendants were not entitled to relief under that decision because neither was affirmatively misadvised by their counsel, nor did they establish prejudice.

Defendant John Wessells was arrested and charged with various offenses, including first degree conspiracy to commit murder, purposeful or knowing murder by use of a handgun, and first degree attempted murder. He moved to suppress statements he made during two separate interrogations. At a hearing, the focus was on Defendant's waiver of his "Miranda" rights: during his direct testimony, Defendant asserted that when the detectives started asking about the murders, he denied knowing anything about them and asked to speak with a lawyer. The trial court denied Defendant's motion to suppress, concluding that he had been informed about the purpose of the interrogation and had waived his rights prior to making the statements. However, without explicitly finding that the questioning had stopped based on Defendant's asserted invocation of his right to counsel, the court concluded that the reinitiation of questioning violated Defendant's constitutional rights. The Appellate Division reversed the order suppressing part of Defendant's statements, reasoning that once Defendant was released from custody, he was afforded an adequate opportunity to consult with counsel. Once investigators reinitiated questioning, Defendant was again advised of his rights, and that his waiver was knowing and voluntary. After the New Jersey Supreme Court accepted certiorari, the United States Supreme Court issued its opinion in "Maryland v. Shatzer," (130 S. Ct. 1213). Because Defendant had not been tried for the crimes with which he had been charged, the New Jersey Supreme Court concluded Defendant was entitled to the benefit of the United States Supreme Court's decision in "Maryland v. Shatzer,"and the statements he made during his second interrogation should have been suppressed.

Plaintiff Roland Davis had been a resident of the Devereux New Jersey Center (operated by Defendant Devereux Foundation) since shortly before his twelfth birthday. Plaintiff was diagnosed with autism, mental retardation, pervasive developmental disorder and attention deficit hyperactivity disorder, and had a history of combative and aggressive behavior. Plaintiff's mother (as his guardian) filed a complaint alleging breach of a "non-delegable duty" to protect Plaintiff from harm, negligent care and supervision, and vicarious liability after a counselor assaulted Plaintiff. The trial court granted Devereux's motion for summary judgment, finding that to the extent claims were for negligence, they were barred by the Charitable Immunity Act (CIA). The court further concluded that New Jersey law does not compel imposing a "non-delegable duty" upon Devereux. The Appellate Division affirmed in part, also finding no "non-delegable duty," and reversed in part, holding that a reasonable jury could find that the counselor acted in part within the scope of her employment. The issues on appeal to the Supreme Court were: (1) whether to impose upon an institution that cares for developmentally disabled residents a "non-delegable duty" to protect them from harm caused by employees' intentional acts; and (2) whether the employee in this case could be found to have acted within the scope of her employment when she criminally assaulted the resident, thereby subjecting the non-profit facility to liability pursuant to "respondeat superior." The Court reaffirmed the duty of due care imposed upon caregivers with in loco parentis responsibilities to persons with developmental disabilities. However, applying the analysis set forth and developed by prior opinions, the parties' relationship, the nature of the risk, the opportunity and ability to exercise care, and public policy, the Court concluded the circumstances of this case did not justify imposing on caregivers a "non-delegable duty" to protect residents from harm caused by employees' intentional acts. Furthermore, the Court held that no rational factfinder could find that the Devereux counselor's criminal assault on Plaintiff was conducted within the scope of her employment.

The issue before the Supreme Court concerned whether a defendant's prior convictions for disorderly persons offenses (inadmissible because they are not crimes) could be used to find that earlier criminal convictions were not too remote and would then be admissible to impeach the defendant's credibility if he testified. Defendant Derrick Harris was indicted for second-degree robbery and second-degree burglary. He was tried for these offenses approximately thirteen years after he was sentenced to concurrent four-year custodial terms for "disorderly persons" offenses in the intervening years. At a hearing, Defendant argued that the prior convictions were too remote to be admissible; the prosecution noted that Defendant had accumulated a significant number of convictions for disorderly persons offenses. The trial court was persuaded that while the disorderly persons convictions were not themselves admissible, they could serve to "bridge the gap" between Defendant's two earlier criminal convictions and his trial in this matter. Upon review, the Supreme Court held that the trial court did not abuse its discretion when it viewed Defendant's intervening convictions for disorderly persons offenses as having removed the bar to admission of those convictions as too remote. Thus, Defendant's prior criminal convictions would be admissible if he testified at trial.

This appeal was a companion to "New Jersey v. Hudson," (___ N.J. ___ (2012), decided on the same day), because it also involved the application of N.J.S.A. 2C:44-5(b) to an extended-term sentence. Here, the sentence was imposed on Defendant Sally McDonald for an offense committed prior to an offense for which she already was serving another extended-term sentence. As in "Hudson," the second extended term was imposed in a separate sentencing proceeding from that in which the first extended-term sentence was imposed. Consistent with the interpretation given N.J.S.A. 2C:44-5 in "Hudson," the Supreme Court reversed and remanded the case for resentencing because it was error for the sentencing court to have imposed a second extended-term sentence on Defendant in these circumstances.

In this appeal and in "New Jersey v. McDonald," (2012), separately conducted sentencing proceedings resulted in sentences that imposed (in the aggregate) multiple extended-term sentences. In previous cases, the Supreme Court addressed N.J.S.A. 2C:44-5(a)(1)'s prohibition against sentencing a defendant to multiple extended terms in a single sentencing proceeding. In this appeal, the Court addressed for the first time the importance of N.J.S.A. 2C:44-5(b)(1)'s incorporation of subsection a's prohibitions to certain offenses and sentencing proceedings, when sentencing was conducted in separate proceedings. Defendant Kevin Hudson was sentenced to a second extended-term sentence for an offense committed prior to the imposition of the extended-term sentence he was serving. The Appellate Division affirmed, recognizing that multiple extended terms may not be imposed in a single sentencing proceeding, but concluded that because Defendant sought severance and subjected himself to two separate sentencing proceedings, his sentence was not illegal. Upon review, the Supreme Court found that in this case, because the indictment was severed resulting in two trials and two sentencing proceedings, and the first sentencing court imposed an extended-term prison sentence, it was error for the second court also to impose an extended-term sentence. The timing and sequence of the offenses and sentencings brought Defendant squarely under N.J.S.A. 2C:44-5(b)(1)'s proscription against multiple extended-term sentences.

The issue before the Supreme Court was whether it was proper for a police officer to testify at trial about how and why he assembled a photo array. In 2005, Angel Chalco left his home in Newark and headed toward the subway station to catch a train to work. As he walked down the stairs, the men grabbed Chalco, pulled him backward, and demanded money. The men took Chalco’s wallet and his cell phone. They then hit him on the head and kicked his stomach, causing him to lose consciousness. After he returned home, he called the police. Soon after, he met with a New Jersey Transit Police Detective and described one of his assailants. That description was broadcast to patrol units. At police headquarters, Chalco viewed about thirty photographs but did not identify anyone as his assailant. A police sketch artist worked with Chalco and prepared a sketch of the assailant based on Chalco’s description. The composite drawing was then disseminated. Days later, the detective came across an arrest photo of Defendant Danny Lazo taken after he had jumped a turnstile. The detective thought Defendant’s photo closely resembled the composite sketch and included a picture of Defendant in an array he compiled. To comply with guidelines from the Attorney General, the detective used a two-year-old photo of Defendant instead of the more recent arrest photo. The detective showed Chalco the photo array, and Chalco identified the picture of Defendant as his assailant. Defendant was arrested the following day. Defendant vigorously objected to both the introduction of the arrest photo and the testimony. The Supreme Court granted defendant’s petition for certification. Upon review, the Court found that the officer’s testimony about the photo array had no independent relevance, merely served to bolster the victim’s account, and should not have been admitted at trial in light of the principles outlined in “New Jersey v. Branch” (182 N.J. 338 (2005)).

The issue before the Supreme Court in this case was whether the "spouse privilege" could be pierced using the three-part test set forth in "In re Kozlov" (79 N.J. 232 (1979) to prevent that spouse from testifying in a criminal proceeding against her husband. In 2006, "Joanne" worked in Defendant Dr. James Mauti's medical office. Her sister Jeannette also worked in Defendant's office as the office manager. Jeannette was his live-in girlfriend. Joanne complained of back pain one day, and Defendant offered to treat her. He gave her a a pain pill and a small liquid described as a muscle relaxant. Joanne recalled that Defendant asked her to change into a pair of his boxer shorts "in case he needed to crack her back." After Defendant gave her a second cup of liquid, she became incapacitated. However, she remembered Mauti heating towels to apply to her back, loosening and pulling down her boxer shorts, and sexually assaulting her. She also remembered a sound that reminded her of a digital camera or cellular phone taking a picture. Joanne claimed Defendant sexually assaulted her. The State subpoenaed Jeannette to appear before a grand jury in late 2006. In the summer of 2007, Jeannette and Defendant announced their wedding engagement. Defendant was charged in August. Jeannette informed the State that she would invoke the spousal privilege with regard to her testimony. The State moved to compel Jeannette to testify. The trial court held that the privilege could be pierced under "Kozlov" because the evidence sought from Jeannette was legitimately needed and could not be secured from a less-intrusive source. The Appellate Division reversed, and the Supreme Court affirmed, finding Jeannette was entitled to exercise the spousal privilege of refusing to testify in his criminal trial because there was no conflict between Jeannette's exercise of the privilege and a constitutional right, and she did not waive her right to exercise the privilege.

A grand jury returned a fifty-count indictment against Defendant Roy Friedman for offenses against his wife and children. Defendant entered a negotiated plea of guilty to three counts of second-degree aggravated assault upon his wife that occurred during three separate periods of time in 2006. The State agreed to recommend sentences of six years, seven years, and seven years, respectively, for the three offenses, each subject to the No Early Release Act (NERA) and to run consecutively to the others. The remaining forty-seven counts would be dismissed. Defendant agreed to waive any argument against imposing consecutive sentences. At the plea hearing, the trial court carefully questioned defendant about his understanding of and agreement with the terms of the plea. Defendant admitted that during the periods of time in question, he burned his wife's arm and thigh with hot oven racks from a toaster oven; as a result, she was hospitalized for life-threatening infections and skin grafts. From his appeal, the Supreme Court considered whether Defendant must serve the periods of post-release parole supervision that are part of a NERA sentence consecutively or concurrently; and whether "State v. Hess" (207 N.J. 123 (2011)), required invalidation of a portion of the plea bargain under which Defendant agreed that his attorney would not argue for concurrent sentences, as opposed to the consecutive sentences to which he had agreed. Upon review, the Supreme Court concluded that when a defendant has been sentenced to consecutive custodial terms under NERA, the periods of parole supervision that follow must be served consecutively. The Court did not reach whether "Hess" applied in this case because the trial court recognized its inherent sentencing authority, and did not abuse its discretion in concluding that it was appropriate to impose consecutive sentences for three separate assaults Defendant admitted committing upon his wife.