Appellate Division holds that Under New Jersey Rules of Evidence a Fabrication is Recent if it Post Dates a Prior Consistent Statement

In State v. Moorer, A-2922-14, decided on December 29, 2016, the New Jersey Appellate Division held that under New Jersey’s evidence rule permitting substantive use of consistent statements to rebut “recent fabrication,” N.J.R.E. 803(a)(2),
fabrication is “recent” if it post-dates a prior consistent statement.

N.J.R.E. 803(a)(2) provides:

A statement previously made by a person who is a witness at a trial or hearing [is not excluded by the hearsay rule], provided it would have been admissible if made by the declarant while testifying and the statement . . . is consistent with the witness’ testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.

“A ‘charge’ of recent fabrication can be effected through implication by the cross-examiner[.]”  State v. Johnson, 235 N.J. Super. 547, 555 (App. Div.) (quoting State v. King, 115 N.J. Super. 140, 146 (App. Div.), certif. denied, 59 N.J. 268 (1971)), certif. denied, 118 N.J. 214 (1989).  Further, such a charge can be implied in the opening statement and confirmed by the closing argument.

This case stands for the proposition that a fabrication is “recent” if it post-dates a prior consistent statement.

Appellate Division holds that Failure to Make Lawful Disposition of CDS is not a Lesser Included Offense of Possession of CDS

The New Jersey Appellate Division held, in State v. Moorer, A-2922-14, decided December 29, 2016, that “failure to make lawful disposition” under N.J.S.A. 2C:35
10(c) is not a lesser-included offense of possession of a CDS under N.J.S.A. 2C:35-1(a).

The court reasoned that N.J.S.A. 2C:35-10(c) is not a lesser-included offense of
N.J.S.A. 2C:35-10(a) under any of the subsections of N.J.S.A. 2C:1-8(d) which governs lesser included offenses.  Subsection (d)(1) does not apply because N.J.S.A.
2C:35-10(c) requires both that the defendant knowingly possessed
a CDS in violation of N.J.S.A. 2C:35-10(a) and that the defendant failed to deliver that substance to a law enforcement officer.  Thus, N.J.S.A. 2C:35-10(c) requires a second element not required by N.J.S.A. 2C:35-10(a).  Subsection (d)(2) is not applicable because N.J.S.A. 2C:35-10(c) involves neither conspiracy nor attempt.  Subsection (d)(3) does not apply because N.J.S.A. 2C:35-10(c) requires a violation of N.J.S.A.
2C:35-10(a) and thus cannot be said to be satisfied by a lesser injury, risk, or culpability.

The court pointed out that the legislative history of N.J.S.A. 2C:35-10(c)
was enacted to give prosecutors “a method of facilitating ‘speedy trials’ by downgrading cases involving possession of CDS” under N.J.S.A. 2C:35-10(a).  State v.
Gredder, 319 N.J. Super. 420, 425 (App. Div. 1999).  The court recognized that in State v. Patton, 133 N.J. 389, 398 (1993), the New Jersey Supreme Court
reviewed N.J.S.A. 2C:35-10(c)’s legislative history.  After the 1987 enactment of the Comprehensive Drug Reform Act of 1986, there was “a dramatic increase in the number of drug arrests” which “exacerbated the pressure on the criminal
courts.”  Patton, supra, 133 N.J. at 393–94.  “[T]he Supreme Court Task Force on Speedy Trial acknowledged that the caseload of the criminal-justice system could be reduced significantly by prosecutors exercising their discretion to refer matters to
municipal court for prosecution as disorderly-persons offenses.”  Id. at 394.

The Task Force recommended the Legislature enact a statute “creating appropriate disorderly persons offenses for possession of small quantities of certain drugs . . . to permit the use of prosecutorial discretion in the charging and screening process.”
Ibid. (quoting N.J. Supreme Court 1986 Judicial Conference on Speedy Trial, Report of the Committee on Delay Points and Problems Affecting Speedy Trial 53 (1986)).  In 1988, the Legislature “implement[ed] th[at] recommendation” by amending
N.J.S.A. 2C:35-10 to add subsection (c) for “use[] only as a mechanism to downgrade simple possession, an indictable offense, to a disorderly-persons offense.”  Id. at 394, 401.

The court recognized a similar situation in State v. N.A., 355 N.J. Super. 143 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003) in which it held that N.J.S.A. 9:6-3 was not a lesser-included offense of N.J.S.A. 2C:24-4(a).  Id. at 154.  The Legislature
enacted N.J.S.A. 2C:24-4(a) to make it a second-degree offense for a person having care of a child to “make [the] child an abused or neglected child as defined in” N.J.S.A. 9:6-3.  N.J.S.A. 2C:24-4(a).  N.J.S.A. 9:6-3 already made it a fourth
degree crime for such a person to abuse or neglect a child.  In enacting N.J.S.A. 2C:24-4(a), the Legislature’s “‘intent [wa]s to incorporate the crime now defined in[N.J.S.A.] 9:6-3 without substantial change except for the penalty provisions.'”  N.A.,
supra, 355 N.J. Super. at 153 (citation omitted).  The court found “a legislative intent that both statutes are to be preserved perhaps to provide prosecutors the option of charging a lesser offense under appropriate circumstances.”  Ibid.  “Under these unique circumstances, the court “concluded in N.A. that N.J.S.A. 9:6-3 “should not have been charged as a lesser included offense” of N.J.S.A. 2C:24-4(a).  Id. at 154.  “Submission of both offenses would involve the jury in the act of imposition of sentence.”  Ibid.  The court stressed that generally “a jury’s consideration of the evidence is confined to what, if any, offenses have been committed by the defendant rather than the penalty which may or must be imposed.”  Ibid.  “The rationale for this limitation is that sentencing information fails to help the jury in deciding the issue of guilt, distracts the jury by confusing the issues to be decided, and invites a
compromise verdict.”  Ibid.

The court stated that in enacting N.J.S.A. 2C:35-10(c), the Legislature similarly intended “‘to incorporate the crime now defined in [N.J.S.A. 2C:35-10(a)] without substantial change except for the penalty provisions'” in order “to provide prosecutors the option of charging a lesser offense under appropriate circumstances.”  See N.A., supra, 355 N.J. Super. at 153 (citation omitted).  For
similar reasons, N.J.S.A. 2C:35-10(c) should not be charged as a lesser-included offense because “[s]ubmission of both offenses would involve the jury in the act of imposition of sentence.”  See id. at 154.

The court also reasoned that, “‘to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense.'”
State v. Funderburg, 225 N.J. 66, 81 (2016) (citation omitted); see, e.g., State v. Cagno, 211 N.J. 488, 522 (2012), cert. denied, __ U.S. __, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013).

The court pointed out that there could never be a rational basis for a jury to convict a
defendant of violating N.J.S.A. 2C:35-10(c) while acquitting him of violating N.J.S.A. 2C:35-10(a), as a defendant must be “in violation of subsection a.” to violate N.J.S.A. 2C:35-10(c).  Absent such a “rational basis,” it is inappropriate to instruct
on N.J.S.A. 2C:35-10(c) as a lesser-included offense of N.J.S.A. 2C:35-10(a).

New Jersey Appellate Division Defines Admissibility Standards for Tweet

In STATE OF NEW JERSEY v. TERRI HANNAH, A-5741-14, decided December 20, 2016, the New Jersey Appellate Division held that New Jersey’s current standards of authentication apply to determining the admissibility of a social media posting such as a Tweet.

N.J.R.E. 901 provides: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.”

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Violation of Probation (VOP) – 2C:45-2, 2C:45-3, 2C:45-4

The period of probation shall be fixed at not less than 1 year nor more than 5 years.

The court shall not revoke probation or delete, add or modify conditions of probation except after a hearing upon written notice to the defendant of the grounds on which such action is proposed.  The defendant has the right to hear and controvert the evidence against him, offer evidence in his defense and to be represented by counsel.

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Conditions of Probation – 2C:45-1

If a court sentences a person to probation it shall attach reasonable conditions necessary to insure that the person will lead a law abiding life or that will likely assist the person to do so.

Some conditions may include requiring the person to support his dependents and meet his family responsibilities, find and continue gainful employment, undergo available medical or psychiatric treatment and to enter and remain in a specified institution when required for that purpose, pursue a prescribed secular course of study or vocational training, attend or reside in a facility established for the residence of persons on probation, refrain from frequenting unlawful or disreputable places or Continue reading →

New Jersey Supreme Court holds that an EMT Working for Private First Aid Squad Providing Services to a Municipality Under Contract is Not Public Servant for Purposes of Official Misconduct

In State v. Brandon T. Morrison, A-36-15, December 14, 2016,  the New Jersey Supreme Court held that an Emergency Medical Technician (EMT) working for a private first aid squad providing services to a municipality under contract is not a public servant for the purposes of the official misconduct statute.

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Final Restraining Order Cannot Stand Without Proper Description of Act of Domestic Violence

In the matter of J.S. v. D.S., New Jersey Appellate Division, A-5742-14 (December 5, 2016), the Superior Court Appellate Division dismissed a Final Restraining Order (FRO).   The court took this action even though the parties sought to dismiss the FRO as part of a divorce settlement agreement.  The court held that it had an obligation to
ensure the FRO was legitimately entered and should not permit its wrongful perpetuation simply because it may have become a useful chip in the settlement of the parties’ matrimonial disputes.  The court held that the FRO can no longer stand because the Judge mistakenly failed to elicit a factual foundation, failed to find domestic violence occurred, and failed to determine whether plaintiff required protection as a result of defendant’s conduct.  The court vacated the FRO, reinstated the TRO, and remanded the matter for a final hearing.

DUI Offender Can be Sentenced as Second Offender Even Though First Offense but not Second Offense was In School Zone

In the case of State v. Wheatley, November 21, 2016, A-5026-14, the New Jersey Appellate Division decided that a defendant convicted of a second offense within ten years of his first offense could be sentenced as a second offender even though the first offense occurred in a school zone but the second offense did not.

This recent decision raised issues from the New Jersey Supreme Court  case of State v. Reiner, 180 N.J. 307 (2004).  In that case, the defendant had previously been convicted of DWI (not in as school zone) and was thereafter convicted of DWI
in a school zone.  The issue before the Court was whether defendant
should be sentenced as a second offender under the school zone provision, which calls for enhanced penalties, even though he had no prior convictions for DWI in a school zone.  The Court found that the ambiguities in the language of the statute, and the inconclusive legislative history when the DWI statute was amended in 1999 to add
the school zone provision, compelled it “to construe the statute strictly,
against the State and in favor of the defendant.”  Id. at 318.  Because the penalties for a second offender under the school zone provisions  were approximately twice those applicable to a second offender under the non school zone provisions, the Court held that a school zone offense is “a separate offense that requires other [school zone]convictions for repeat status to attach.”  Ibid.   Consequently, the Court concluded that “the trial court should sentence defendant in accordance with the
heightened penalties that apply as a consequence of being a second-time offender under the non school zone provision.

The Appellate Division recognized that factual scenario in Wheatley is the converse of that addressed by the Court in Reiner.  Unlike Reiner, Wheatley was first convicted of the school zone offense and then the general DWI offense.  Both subsections of the DWI statute require the same elements of proof, except that the State must additionally prove the offense occurred in a school zone in order to establish a violation, with its attendant harsher penalties.  In effect, then, although Reiner deemed them to be separate offenses, a non school zone offense is a lesser-included offense of a school zone offense.  In the related context of our Criminal Code, N.J.S.A. 2C:1-8d(1) explains that an offense is included when “[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]”  Thus, when defendant was convicted of DWI in a school zone as his first offense, the State necessarily established all the elements necessary to sustain not only the school zone  violation but also the non school zone violation.  Subsequently,
when defendant pled guilty to the non school zone offense, the same basic elements of the conventional DWI statute were again established for the purposes of sentencing as a second offender.

Atlantic City Certified Criminal Defense Attorney

Stephen F. Funk, is a criminal defense attorney with offices located in Atlantic City, New Jersey. He is Certified by the Supreme Court of New Jersey as a Criminal Trial Attorney and specializes in the defense of individuals charged with criminal offenses or serious traffic offenses such as DWI/DUI. If you are charged with a criminal offense or DWI/DUI in Atlantic City, anywhere in Atlantic County or anywhere in Cape May County you need an aggressive and trustworthy Atlantic City criminal defense attorney to investigate your case and provide you with the best defense. Mr. Funk appears in the Atlantic County Superior Court, the Cape May County Superior and Municipal Courts throughout each of those counties everyday. He is a local attorney known and respected by the Prosecutors, Judges and Court staff. Contact him today.

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