The Appellate Section of the OPD had many important wins in the first third of this year.

• The New Jersey Supreme Court reversed defendants murder conviction because of three trial errors, which involved the preclusion of testimony from two defense witnesses, and a claim that the prosecution engaged in improper cross-examination of the defense’s expert witness and disparaged the expert, as well as the defense, during summation. The errors had a disproportionately harmful effect in defendant’s trial than they would have, had each been examined individually. The cumulative error directly related
  to defendant’s ability to present in full, and have fairly considered, the evidence to support his asserted justification of self-defense at the moment of the shooting. State v. George Jenewicz (January 28, 2008)
  

• Convictions reversed by the Appellate Division. "We conclude that the trial court committed reversible error in barring [a defense witness'] proposed testimony on the ground that it would violate the Rape Shield Statute. Blackshear's proposed testimony that defendant and B.S. "[had] been on a very friendly basis of hugging" and that B.S. had "lead [sic] the defendant on sexually" would not constitute "evidence of the victim's previous sexual conduct" within the intent of the Rape Shield Statute. The
  probative value of Blackshear's proposed testimony regarding the
  relationship between B.S. and defendant before the date of the alleged sexual assault outweighed its prejudicial effect. Blackshear's proposed testimony was directly relevant to the resolution of defendant's and B.S.'s conflicting versions of the nature of their relationship before the alleged sexual assault. Moreover, the jury's resolution of this conflict could have played a significant role in their evaluation of the credibility of B.S.'s and defendant's conflicting versions of what occurred. State v. Erik Carroll (March 3, 2008)
  
  
• Conviction reversed by the New Jersey Supreme Court because trial court erred in refusing to "sanitize" defendant's prior conviction for aggravated manslaughter during his trial for CDS offenses. The CDS was seized by police during defendant's interrogation in connection with a homicide case, for which defendant was never charged. In this case, defendant’s prior conviction involved a crime that factually resembled the tragic circumstances of the investigation into another young woman’s
  death, and led to defendant’s interrogation. The trial court erred in concluding that it had no ability to ameliorate the undue prejudice to defendant through sanitization of the earlier conviction. Prior case law did not foreclose from trial courts the discretion to consider sanitization of prior-conviction evidence in circumstances like these, which posed a risk of undue prejudice to a defendant. State v. Frederick T. Hamilton (January 16, 2008)
  
  
• Pre-trial evidentiary rulings affirmed in part and reversed in part by the Appellate Division. The Court affirmed the trial court's exercise of discretion to allow defendant to introduce evidence of T.F.'s accusations against her other cousins. However, it reversed, remanded and instructed the trial court to reconsider whether, in the event defendant does elect to introduce evidence of those accusations, fairness and the integrity of the judicial process might dictate that evidence of the guilty pleas or other
  evidence tending to rebut the inference of falsity should be allowed in one form or another. State v. B.M. (January 11, 2008)
  

• Finding of abuse and neglect reversed, case remanded for plenary hearing by the Appellate Division. The Court held that a permanency hearing is not required prior to placing a child in the physical custody of a non-abusive parent and dismissing the litigation. However, defendant's procedural due process rights were violated by the failure to appoint counsel to represent him. DYFS v. R.G./In the Matter of R.X., a Minor (January 8, 2008)
  
  
• In an interlocutory appeal by the Law Guardian on behalf of A.H., a five-year-old girl, from an order approving the Division of Youth and Family Service's (DYFS) permanency plan to terminate the birth parents' rights followed by select-home adoption, the Appellate Division held that Kinship Legal Guardianship pursuant to the Kinship Legal Guardianship Act is deemed to be a permanent placement option in the appropriate circumstances specified in the statute. DYFS v. D.H. and J.V./ In the Matter of the Guardianship of A.H. (February 21, 2008)
  
  
• The Appellate Division held that modification of the residential custody of a child, from one natural parent to the other, is not a placement under N.J.S.A. 9:68.54. However, notions of fundamental fairness and the best interests of the child require that the judge conduct a full custody hearing prior to the termination of the Title Nine litigation to determine whether
  custody should remain as modified, or whether custody should be returned to the initial custodial parent, subject to conditions and D.Y.F.S.'s continued supervision. DYFS v. G.M. and M.M./In the Matter of K.M. and C.M., Minors (January 23, 2008)
  
  
• Order terminating parental rights affirmed by the Appellate Division. The defendant mother's parental rights to her deceased child could be terminated posthumously on the principle that equity will not permit a wrongdoer to profit by her wrongdoing (1) where the deceased child died as a result of abuse by the person to whom the mother had abandoned her children and (2) where the State settled the claim for the child's wrongful death for $1 million. DYFS v. M.W. and T.H./In the Matter of Guardianship of R.W., F.W., AND T.H. (February 26, 2008)

• The Appellate Division reversed the trial judge's denial of defendant's motion to suppress an out-of-court identification because the Attorney General's ‘Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures’ (the Guidelines) were materially breached by the investigating officers' intrusion into an eyewitness's examination of a photographic array, and concluded that a presumption of impermissible suggestiveness must be imposed, and a new Wade hearing conducted. Although the Guidelines do not expressly state that an investigating officer may not intrude into the process, such conduct violated the spirit of the Guidelines in this case. The new Wade hearing must take place before a different judge than the one who denied the motion originally. State v. Larry R. Henderson (January 7, 2008)
  

• Denial of PCR reversed, new trial ordered by the Appellate Division, based on individual and cumulative instances of IAC. Trial counsel was ineffective in failing to fully elicit testimony from defendant's alibi witness, and appellate counsel was ineffective in failing to raise on direct appeal the trial judge's failure to give an alibi instruction at the close of the trial. Trial counsel also was ineffective in failing to object when the prosecutor, in his opening statement, argued that witnesses had been intimidated and inappropriately asserted or suggested that the jurors would be in danger merely by sitting in the courtroom but for the presence of sheriff's officers, and appellate counsel was ineffective in failing to pursue that issue on appeal. State v. Terrence Echols (February 26, 2008)

• Conviction reversed by the Appellate Division. The trial court erred when, in answer to the jury's note that they "[c]annot come to a unanimous decision," he instructed them that "three hours and 50 minutes do not a deliberation make," and that he was "going nowhere" between Friday and Sunday. "From our review of the record, we conclude that the judge's comments were coercive. They suggested that the jury would be required to deliberate through the weekend if they did not reach a unanimous verdict. This coerced the hold-out juror to surrender his or her honest view of defendant's guilt or innocence in order to appease the other jurors' annoyance at continuing deliberations. Therefore, on this basis alone, defendant is entitled to a vacation of the conviction and a new trial." State v. Timothy Strickland (April 11, 2008)

• Convictions reversed by the Appellate Division where the trial court failed to dismiss the jurors already selected and discharge the remaining jury venire, as required by Gilmore, after finding that the prosecutor and defense had both discriminated on the basis of gender in the exercise of three peremptory challenges. Instead, the court granted each party three additional peremptory challenges. It is not within the province of a lower court to adopt a remedy for the discriminatory exercise of peremptory
  challenges different from the remedy expressly set forth in Gilmore. Only the Supreme Court can modify the remedy prescribed by Gilmore. See also EVIDENCE. State v. Erik Carroll (March 3, 2008)
  
  

• Remand of case for reconsideration of admittance to PTI affirmed by the New Jersey Supreme Court. Defendant who continued to collect unemployment insurance checks for four months after he resumed working was not presumptively ineligible for PTI under the"continuing criminal business or enterprise" prong of Guideline 3(i). With the exception of cases involving longstanding criminality, individuals acting alone in furtherance of their own criminal interests, who commit a series of offenses such as thefts
  or forgeries, are not within the contemplation of Guideline 3(i)(2) because they are not part of a larger whole and are not acting in concert with others. Because Watkins’s offenses were not part of a continuing criminal business or enterprise, he was not subject to the presumption against admission to PTI. State v. Charles A. Watkins III (February 21, 2008)
  
  
  

• Convictions reversed by the Appellate Division based on multiple instances of misconduct in cross-examination of defendant and summation. On cross-examination, the prosecutor properly emphasized the divergence between the versions of events presented by defendant and those of the State's witnesses. However, in doing so, he repeatedly compelled defendant to acknowledge on the record that if defendant's statements were true, then [the State's witnesses] were "lying" or that they were "liars." Additionally, and without foundation for doing so, the prosecutor repeatedly took issue with defendant's consistent statement that he resided at 250 Georgia King Village, thereby suggesting that defendant could not testify truthfully even with respect to his address. Ample New
  Jersey precedent establishes that a prosecutor may not require one
  witness, and particularly a defendant, to assess the credibility of
  another. The prosecutor was also chastised three times during his cross-examination of defendant for his "theatrics," and the court's comments occurred only after several other similar instances were permitted to occur. In considering whether the prosecutor's conduct in this matter was sufficiently prejudicial to require reversal of the jury's verdict, the Court also considered the prosecutor's statements in closing argument that denigrated defense counsel and the defense proffered in the matter and also urged that justice be done, by implication, through the jury's return of a guilty verdict. State v. Paul Jennings (March 27, 2008)
  
  
• Adjudication of delinquency reversed by the Appellate Division. Defendant testified that he was not present at the robbery, that he only met the juveniles who did it after the robbery took place, and that "one of the group, Rasheem, has the PSP [Play Station Portable], but that Raheem was not with them when they were stopped by the police. In a line of questioning impugning defendant's credibility, the prosecutor asked defendant why he failed to tell the officer that Rasheem had the PSP. It was improper for the prosecutor to attack defendant's version of what
  happened by commenting on his failure to tell the police that Rasheem did not have the PSP. While the whereabouts of the PSP did not appear to play a role in the trial court's decision, defendant's credibility was critical in light of the conflict between his testimony on his involvement in the events and the State's charges. This improper line of questioning undercut defendant's credibility. State in the Interest of A.V., a Juvenile (April 25, 2008)
  
  

• Denial of PCR reversed, conviction vacated, and suppression of evidence ordered by the Appellate Division in this case. Upon receiving an anonymous tip that defendant, who was the subject of several arrest warrants, was armed and hiding in a friend's apartment, police had sufficient exigent circumstances to enter the apartment, arrest defendant, who fled, and search the area adjacent to him. However, the search of the living room couch, conducted after defendant had been removed from the house, cannot be justified as incident to the arrest. The police did not ask for
  consent, and exigent circumstances were not present for such a
  warrantless search. Although the police were aware of the possibility of applying for a telephonic search warrant, they did not follow that path. State v. Marcus Hayes (March 7, 2008)
  
  
• The New Jersey Supreme Court reversed defendant's conviction and ordered suppression of the evidence against him. Despite his response to police questioning denying that the seized and searched duffel bag belonged to him, defendant did not lose his standing to challenge the search of a duffel bag that had other apparent owners. The duffel bag was not abandoned here because it was located in a home that was occupied by five people. The other household members too had a right not to have their effects subjected to an unreasonable search. In addition to upholding
  defendant's standing, the Court held that the police did not have exigent circumstances sufficient to justify the warrantless search of the duffel bag in the home. State v. Andre Johnson (February 26, 2008)
  
  
• Conviction reversed, suppression ordered by the Appellate Division. The court which issued the search warrant in this case violated the constitutional requirement that a search warrant be issued by a 'neutral and detached magistrate' by ceding its authority to the discretion of the police (1) when it issued a search warrant but required that the police further investigate which of two apartments was allegedly involved in criminality, and (2) did not require that the police return with this additional
  necessary information but instead issued the warrant on the condition that it not be executed until that additional information was obtained. In addition, the general description of the place to be searched as "the apartment within the premises of 105 Wayne Avenue to which [Daniels] has possession, custody, control or access," violated the constitutional requirement that a warrant "particularly describe" the premises to be searched. State v. Quinn Marshall (January 29, 2008)
  
  
• The Appellate Division held that, under the circumstances of this case, both the stop and frisk and the search of the vehicle violated the Fourth Amendment prohibition against unreasonable searches and seizures. The police officers received a dispatch that headquarters had gotten an anonymous tip that someone in a burgundy Durango with a temporary tag was flashing a gun at a certain location. The existence of the tip, the lateness of the hour, and the confirmation of the type, color, and location of the vehicle reported in the tip justified an investigatory stop to permit the police to inquire as to what the occupants of the Durango were doing. However, the subsequent searches of the car (gun found under the front seat) and its occupants were unlawful because the pat-down searches of the driver and occupants and the search of the Durango were based solely on an unidentified anonymous tip. All the police had to go on was the "bare report of an unknown, unaccountable informant" that someone was seen flashing a gun." State v. Cadree B. Matthews (March 10, 2008)
  
  
• Conviction reversed, suppression ordered by the Appellate Division. Under the circumstances presented here, the police by breaking down the entrance door of the dwelling, twenty to thirty seconds after announcing their presence converted the "knock-and-announce" warrant into a de facto "no-knock" warrant. This constituted a violation of a material condition imposed by the court, rendering the search unreasonable and unconstitutional. Furthermore, the use of a so-called flash bang explosive device by the police here was factually unwarranted, and rendered a nullity
  the warrant's knock-and-announce condition imposed by the court.
  Absent unforeseen exigent circumstances supporting the use of force, the use of a flash bang device in connection with the execution of a "knock-and-announce" warrant, nullifies the legal efficacy of such warrant, rendering the entry and search of the dwelling unconstitutional. State v. James Robinson (April 15, 2008)