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New Jersey Criminal Conviction Appeal Highlights (October 09)


by in Criminal Defense

The following NJ criminal conviction appeals were decided by the New Jersey Supreme Court and the New Jersey Superior Court – Appellate Division in October. Case summaries are provided courtesy of Mark Friedman and Patricia Casey of the Office of the Public Defender.

Crimes And Offenses – Elements

State v. Eugene M. Wilson, unpublished opinion, App. Div. Docket No. 2234-06T4 (October 6, 2009) – Conviction for endangering the welfare of a child reversed, other convictions affirmed. “[U]nder the facts presented at trial, [the] conviction … for endangering an injured victim cannot be sustained, because, as the State acknowledges, the victim was either already dead, or at a minimum unable to be saved, at the time he left her apartment…. Here, the expert witness testimony established that Rosetta was ‘essentially medically dead’ in the ‘very early’ stages of the attack. In fact, the assistant medical examiner opined that the first wounds stopped Rosetta’s heart…. [T]he evidence adduced clearly showed that Rosetta was dead before defendant left the scene.” (Susan Brody, A.D.P.D.)

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State v. Curtis Daryl Cooper, unpublished opinion, App. Div. Docket No. A-3346-07T4 (October 8, 2009) – Convictions reversed. “On appeal, defendant first claims that it was error to permit cross-examination of his expert, Dr. Weiss, by use of hearsay upon which the expert did not rely. This hearsay consisted of the statement given by Walter Jones recounting what he had been told by defendant in the early morning after the fire, including defendant’s threat to kill his girlfriend. The hearsay also included reports of prior acts of violence referenced in defendant’s medical records…. In the present case, … , Dr. Weiss reviewed Jones’s statement and considered it in reaching his conclusions, but did not rely upon it. The judge’s determination to permit cross-examination, nonetheless, resulted in the introduction of hearsay that the jury was otherwise not permitted to hear, thereby denying defendant his constitutional right of confrontation…. In contrast to Dr. Weiss, Dr. Atkins [State’s expert] testified that the statement of Walter Jones was ‘very important’ to him in rendering his opinion…. Nonetheless, defense counsel objected to the prosecutor’s use of Jones’s statement, arguing that the prejudicial effect of the admission of its contents outweighed its probative value…. In the present matter, a Rule 403 analysis was rejected by the trial judge who, apparently relying on his prior mistaken ruling that the use of the Jones statement would be permitted in connection with the cross-examination of Dr. Weiss, determined that such analysis was no longer warranted because the objected-to hearsay was already before the jury. We regard this determination as a further error on the judge’s part. We are satisfied that defendant’s hearsay admissions to Walter Jones, as contained in Jones’s statement to the police, should never have been brought to the attention of the jury in the absence of testimony by Jones, himself, at trial. Further, we conclude that the judge’s combined errors in permitting the use of this double hearsay violated defendant’s right to confrontation and deprived him of his right to a fair trial.” (Ingrid A. Enriquez, Designated Counsel)

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State v. Michael Gore, Jr., unpublished opinion, App. Div. Docket No. A-1924-06T4 (October 26, 2009) – Conviction reversed. “At trial, Detective Rios testified regarding the unreviewed and unsigned confession to robbery and murder given by defendant following his surrender to the police…. On appeal, defendant argues that the trial judge committed plain error when she allowed his statement to be admitted in evidence and twice circulated to the jury…. N.J.R.E. 803(c)(5) permits the recollection of a witness to be refreshed by a writing made at the time when the fact recorded actually occurred. When the witness does not remember part or all of the contents of the writing, the rule permits ‘the portion the witness does not remember [to be] read into evidence.’ However, it ‘shall not be introduced as an exhibit over objection’…. In the present case, defendant did not fully acknowledge the correctness of his statement…. While we regard the evidence in this case against the defendant to be strong, we are mindful of the fact that the jury experienced significant difficulty in reaching a verdict, requiring extensive read-backs of testimony and at one point stating that a unanimous verdict could not be reached. In these circumstances, we cannot discern with confidence what influence the written confession, shown to the jury at trial and given to them for use in their deliberations, might have had.” (Marcia Blum, A.D.P.D.)

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State v. Raafiq Leonard, ? N.J. Super. ?, 2009 N.J. Super. LEXIS 225 (October 15, 2009) – Convictions affirmed. “Prior to Wright’s [alleged victim] taking the stand, the prosecution sought a ruling barring defendant’s attorney from raising in her cross-examination of Wright the fact that he had been convicted of third-degree aggravated assault in 1993. After hearing argument from the attorneys, the trial court agreed with the prosecution and ruled that Wright could not be cross-examined on that issue…. [W]hile Wright’s testimony was undeniably important to the State’s case, he was fully cross-examined in the presence of the jury about discrepancies between his testimony at trial and his statement to the police the night of the incident. In addition, his testimony was corroborated by the fact that his cell phone was discovered in the red car, together with a sawed-off shotgun, and the currency in defendant’s possession closely matched what Wright had just withdrawn from the ATM machine…. Having reviewed this record, we are unable to conclude that the trial court’s ruling barring defendant from cross-examining Wright as to this remote, unrelated conviction constituted an abuse of its sound discretion.” See also SENTENCING – MISCELLANEOUS. (Stephen P. Hunter, A.D.P.D.)

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State v. Alfred Petrossian, unpublished opinion, App. Div. Docket No. A-1775-08T4 (October 26, 2009) – Conviction reversed, case remanded. Although, isolated by the existing record, and given the credibility findings made, defendant’s admittedly offensively coarse language was outrageous and likely to cause annoyance or alarm and would clearly warrant a finding of harassment, the municipal judge misapplied his discretion in denying defendant’s request for a postponement to present his mother as a witness on the issue of his purpose to harass.

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Guardianship/Termination of Parental Rights

DYFS v. J.L., ? N.J. Super. ?, 2009 N.J. Super. LEXIS 221 (October 1, 2009) – Final determination that defendant had committed an act of child neglect reversed, name ordered deleted from Central Registry. “As the result of our review of the record, we are satisfied, in this case, that J.L.’s conduct, although arguably inattentive or even negligent, did not meet the requisite standard of willful or wanton misconduct. In this regard, we note that the children were almost four and almost six years of age, respectively. They were returning to a home that was within view of their mother, and they were not required to cross any streets to reach it. The home, itself, was deemed safe by DYFS, and with the exception of this incident, J.L.’s conduct toward her children was deemed appropriate. Indeed, DYFS offered no services to J.L. or her family, did not refer the matter to the prosecutor, did not remove the children from the home, and it closed its file following its initial investigation…. J.L.’s conduct in this case caused, at most, transitory upset to the older child, whom the police believed to have been crying prior to their entry and who stated that he was ‘scared.’ The DYFS worker’s interviews with the two children on the day following the incident discloses no evidence of lasting harm, or even a lasting recollection of what had occurred. The Director’s finding to the contrary that ‘[b]oth children were terrified’ has no support in the record.” (James Herman)

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DYFS v. M.Y. and E.Y./In the Matter of N.Y. and P.Y., unpublished opinion, App. Div. Docket No. A-1433-08T4 (October 22, 2009) — Order terminating M.Y.’s parental rights to his biological daughters and placing the children in the guardianship of DYFS for adoption by M.S., their maternal grandmother, reversed. Factors such as the trial judge’s conclusion that he was unable to accept or reject the conflicting expert opinions on whether termination of parental rights will not do more harm than good, the absence of support for the finding that M.S. would not agree to continue as a placement for the children if she was unable to adopt them, and the fact that the children have bonded with their parents and have expressed a desire to live with them, the panel require remands for further proceedings. DYFS has failed to prove by clear and convincing evidence that termination of parental rights will not do more harm than good. (Richard Sparaco, Designated Counsel; Christopher A. Huling, A.D.P.D., Law Guardian)

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Guilty Pleas

State v. Edward Acquaye, unpublished opinion, App. Div. Docket No. A-2453-08T4 (October 21, 2009) – Order granting PCR and vacating conviction affirmed. “The judge granted defendant’s PCR petition, finding that defendant’s guilty plea was not entered knowingly, voluntarily, or intelligently because the State’s promise to recommend that defendant not lose his New Jersey license to operate a rest home implied, according to the judge, that defendant had a chance of continuing to operate Lincoln Rest Center. However, because defendant’s debarment from federally-funded healthcare programs was a mandatory result of the guilty plea, continued operation of the business was ‘practically impossible.’ Finally, the judge reasoned that ‘the mandatory nature of said debarment is inconsistent with the [plea recommendation.]’… There would not be a reversal here if the State had simply recommended a non-custodial sentence. However, the State went further and promised to recommend that defendant’s license to operate a rest home facility not be suspended. Clearly, the State had no control over the New Jersey or federal licensing bodies. But, by making the recommendation that it did, the State conveyed erroneous information that federal exclusion was not mandatory. The promise was illusory, and would never be accepted by the licensing body. Moreover, the misinformation went to a consequence which was a material element of the plea agreement from defendant’s perspective. Not losing the ability to operate Lincoln Rest Center was defendant’s primary concern. As stated above, the State’s recommendation had the capacity to mislead defendant. The disclaimers at the plea hearing did not resolve this misinformation.” (Jef Henninger)

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Ineffective Assistance of Counsel (IAC)

State v. A.J., unpublished opinion, App. Div. Docket No. A-5618-06T4 (October 5, 2009) – Denial of PCR reversed, convictions reversed. Defense counsel’s decisions not to cross-examine the victims about their alleged recantation or their mother about their recantation, and her decision to call as a witness defendant’s new fiancee were not well-reasoned, strategic decisions made after adequate investigation and preparation. Trial counsel’s performance was deficient under the Strickland/Fritz standard and defendant has demonstrated prejudice. “At the PCR hearing, counsel reiterated several times that she believed C.J. ‘backtracked’ regarding her opinion of the girls’ veracity and that made her reluctant to question her further about the truthfulness of her daughters. As we see it, counsel reached this conclusion based upon 1) a single, allegedly unexpected answer, i.e., that Y.A. and N.G. had only lied about having boys in the house; and 2) the subsequently-shown mistaken belief that counsel had elicited this testimony from C.J. at a pre-trial hearing…. The State’s proofs were by no means overwhelming…. Y.A. and N.G. testified as to defendant’s alleged conduct, but there was little cross-corroboration. Neither one witnessed the alleged behavior of defendant toward the other, except to describe, in general terms, the favorable treatment Y.A. received from defendant…. Once defendant testified in his own defense, however, the jury had two sets of allegations, each directly opposite from the other, to consider. The jury’s decision turned upon credibility.” (Peter B. Meadow, Designated Counsel)

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Lesser Included Offenses

State v. Jachin Ickes, unpublished opinion, App. Div. Docket No. A-5860-07T4 (September 30, 2009) – Conviction reversed. “Defendant argues … that the trial court erred in failing to sua sponte instruct the jury on the lesser-included offenses of third-degree aggravated assault and simple assault because the facts provided a clear and rational basis to convict on either charge and to acquit on the robbery charge…. Defendant identified himself as a police officer, or member of the FBI or CIA, and held Kim as an officer might hold a prisoner while taking the prisoner into custody. Although defendant asked Kim several times for Kim’s last name, defendant never demanded that Kim give him any money. Nor did defendant attempt to take Kim’s wallet. As Conner testified, the incident ‘wasn’t a money issue.’ Defendant did not attempt to flee the scene but rather stayed there until the police arrived, all the time acting in an erratic manner, as if under the influence of drugs or alcohol. Clearly, under these facts, a reasonable jury could have concluded that defendant neither intended nor attempted to take the five-dollar bill out of Kim’s possession.” (Lance D. Brown)

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Post-conviction Relief (PCR)

State v. Terrance Cooper, unpublished opinion, App. Div. Docket No. A-4579-07T4 (October 19, 2009) – Denial of PCR reversed, case remanded for evidentiary hearing. “The judge clearly erred in failing to consider any of the issues raised by defendant pro se. Those issues, trial counsel’s alleged failure to request a theft-by-deception charge and failure to mold the charge to the facts where two objects were allegedly taken, are not insubstantial. The claim that appellate counsel was ineffective in failing to raise them exempts them from any procedural bar and requires a remand for an evidentiary hearing at which both trial and appellate counsel must testify…. [T]he judge had no factual record before him to support his conclusion that counsel’s failure to object to the prosecutor’s opening and closing remarks was a tactical decision on her part. Such a finding can only be made based on testimony of trial counsel, which is notably missing. Neither can it be inferred from the fact that she objected once during the prosecutor’s opening statement and once during his closing argument. This baseless finding undermines the PCR judge’s conclusion that defendant failed to show his counsel’s decision undermined the reliability of the trial. As a consequence, this issue must be remanded for an evidentiary hearing at which trial counsel must testify and the judge must then reconsider his decision.” (Michael Confusione, Designated Counsel)

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Pre-trial Intervention (PTI)

State v. Ryan Neff, unpublished opinion, App. Div. Docket No. A-2360-08T4 (October 16, 2009) – Admission of defendant into PTI over State’s objection affirmed. “Because the prosecutor’s reasons for denying admission into PTI were unfounded, he clearly erred in his judgment and we affirm to avoid an egregious injustice…. [T]he PTI director completed a PTI rejection form. The only reason advanced for not recommending PTI was ‘[t]he nature of the offense, N.J.S.A. 2C:43-12e(1).’… [T]he prosecutor did not discuss factor (1) and relied heavily on factor (2), the facts of the case. In doing so, he set forth the evidence observed by the police, but he did not discuss any statements defendant or the other three individuals may have given to the police after their arrests or the information that defendant subsequently provided with respect to the roles of [the co-defendants]…. Nothing in the record suggests that the information communicated by defendant’s counsel was anything but accurate. Clearly, all of the facts of the case do not weigh against admission into PTI. In fact, they strongly favor it. Defendant was the least culpable of the four individuals involved in this drug transaction. The one fact cited by the Assistant Prosecutor – that the weight of the drugs was toward the upper limit for the third-degree offenses with which defendant was charged – is irrelevant because the weight was within the third-degree range and PTI decisions are to be based more on the conduct of the defendant and less on the charge. State v. Brooks, 175 N.J. 215, 224-25 (2002). The conduct of defendant strongly supports admission into PTI because he advanced no money for the purchase of the drugs and did not personally intend to distribute them…. In rejecting defendant’s PTI application, the prosecutor did not explain how he measured the defendant’s application ‘according to the applicant’s amenability to correction, responsiveness to rehabilitation and the nature of the offense,’ as required by N.J.S.A. 2C:43-12b. He certainly did not find that defendant was not amenable to correction and would not respond to rehabilitation. Defendant has clearly and convincingly established that he is amenable to correction and will respond to rehabilitation, and the nature of the offense does not contraindicate PTI admission.” (Jack Arsenault)

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Search And Seizure

State v. Sherwin H. Raymond, unpublished opinion, App. Div. Docket No. A-6264-07T4 (October 7, 2009) – “Because evidence was obtained pursuant to a warrant executed by a municipal judge not authorized to permit a search in the municipality in question, we reverse and remand for further proceedings…. Here, the record reveals that the assignment judge of the Bergen vicinage entered orders on the first day of 2004, as well as the first day of 2006, appointing Judge Shuhala as an acting judge of Ridgefield when the original judge of that municipality either disqualifies himself…. [T]he 2004 order expired on December 31, 2004 and the 2006 order did not become effective until January 1, 2006. These orders did not expressly or even impliedly authorize Judge Shuhala to execute search warrants for premises in Ridgefield during the calendar year 2005…. There was no brief hiatus of a few weeks between the issuance of the warrant and the entry of an order appointing the issuing judge to that jurisdiction for that calendar year. Here, it has not been demonstrated that Judge Shuhala was ever appointed to the position of acting judge of Ridgefield for any part of the year 2005.” (Evan P. Nappen and Louis P. Nappen [on the brief])

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Sentencing – Miscellaneous

State v. Raafiq Leonard, ? N.J. Super. ?, 2009 N.J. Super. LEXIS ? (October 15, 2009) – Convictions and sentence affirmed. “Defendant’s remaining argument is addressed to his sentence, both with respect to the trial court’s analysis and the quantum. He points to our opinion in State v. Zadoyan, 290 N.J. Super. 280, 291 (App. Div. 1996), in which we held that trial courts, in sentencing a defendant for the crime of carjacking, ‘must look to the alternative elements of carjacking to guide their sentencing discretion.’ Defendant maintains that this trial court did not do so, and thus he is entitled to be resentenced….

Initially, we note that the analytical premise underlying Zadoyan, the absence of a presumptive term for the crime of carjacking, id. at 290-91, has been substantially weakened in light of the Supreme Court’s abolition of presumptive sentencing in State v. Natale, 184 N.J. 458, 487 (2005). Defendant’s sentence, nonetheless, is in the mid-range of permissible sentences for the crime of carjacking. N.J.S.A. 2C:15-2(b). Further, the defendant in Zadoyan was convicted of what the court considered the least serious form of carjacking…. Here, however, the victim’s car was stolen after he was threatened with a sawed-off shotgun.” See also EVIDENCE. (Stephen P. Hunter, A.D.P.D.)

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State v. L.V., 410 N.J. Super. 90 (App. Div. 2009) – “We conclude that the sentencing judge mistakenly exercised his discretion when he refused to sentence defendant as a third-degree offender. We reverse the sentence imposed, exercise our original jurisdiction, resentence defendant as a third-degree offender, and remand for entry of an amended judgment of conviction…. Balancing the aggravating and mitigating factors, we are clearly convinced that the mitigating factors substantially outweigh the aggravating factors…. We are clearly convinced that the high standard governing downgrading, [State v. ]Megargel, 143 N.J. 484, 500 (1996)], is met here. Compelling reasons exist for the downgrade. Id. at 502. In addition to the mitigating factors, defendant is a person of very limited intelligence, functioning at a level in school initially below a five-year-old child and by the time of the crimes at the level of a six-year-old child. She struggled in school and was placed on special education programs. She has a severe language disorder and severe deficits in comprehension and syntax. She suffers from PTSD and Major Depressive Disorder. The circumstances surrounding her behavior were extreme and severe. She had been raped by her father repeatedly for years, causing impairment of her judgment and decision-making ability. She felt powerless toward her father and feared for her life and that of her mother. Her cognitive limitations impaired her ability to seek help with respect to the rapes and her pregnancies and affected her desire not to have her babies abused, and she was socially isolated by her abusive father. Her cultural and language barriers and her lack of assimilation into the community also prevented her from seeking help…. The judge erred in refusing to sentence defendant as a third-degree offender.” (Mark Stalford, Designated Counsel)


State v. Marcus Hollen, unpublished opinion, App. Div. Docket No. A-5053-06T4 (October 13, 2009) – “We review a conviction based on the mistaken admission of a material witness’s videotaped deposition. The deposed witness was only absent from the State; he was not ‘unable to testify because of death or physical or mental incapacity,’ as required by Rule 3:13-2(c). Even though defense counsel failed to object to this misapplication of Rule 3:13-2(c), we reverse and remand for a new trial because the admission of the deposition was clearly capable of producing an unjust result…. Rule 3:13-2 defines what is meant by the unavailability of a material witness, requiring that the proponent establish that the witness has either died or is physically or mentally incapacitated. The Rule’s incapacity element does not encompass a situation where the witness is healthy in mind and body but not physically present within the jurisdiction…. As the State concedes, Khan ‘was the only witness that could testify that the defendant possessed the handgun’ – a necessary element of the charged offense. Because defense counsel failed to object, Khan’s deposition was heard by the jury despite the fact that Rule 3:13-2(c) did not permit its use…. We reverse not because the State failed to provide evidence on an essential element but because the trial court erred in allowing the State to prove an essential element through inadmissible evidence. Under these circumstances, particularly in light of defendant’s failure to raise the inapplicability of Rule 3:13-2 in the trial court, defendant is entitled to a new trial, not outright acquittal. (Rasheedah Terry, Designated Counsel)

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