E453 1. What is Hazing in NJ? 2. What is rape in NJ and sexual assault in NJ? 3. Metuchen Fair rescheduled for Saturday Oct. 18 10-4


E453 1. What is Hazing in NJ? 2. What is rape in NJ and sexual assault in NJ? 3. Metuchen Fair rescheduled for Saturday Oct. 18 10-4

E453

1. What is Hazing in NJ?

2. What is rape in NJ and sexual assault in NJ?

3. Metuchen Fair rescheduled for Saturday Oct. 18 10-4

1.What is Hazing in NJ?

2C:40-3. Hazing ; aggravated hazing

a. A person is guilty of hazing a disorderly persons offense, if, in connection with initiation of applicants to or members of a student or fraternal organization, he knowingly or recklessly organizes, promotes, facilitates or engages in any conduct, other than competitive athletic events, which places or may place another person in danger of bodily injury.

b. A person is guilty of aggravated hazing a crime of the fourth degree, if he commits an act prohibited in subsection a. which results in serious bodily injury to another person.

2C:40-4. Consent not available as defense to hazing

a. Notwithstanding any other provision of Title 2C of the New Jersey Statutes to the contrary, consent shall not be available as a defense to a prosecution under this Act.

b. More information on website www.njlaws.com

2. What is rape in NJ and sexual assault in NJ 2C:14-2?

New Jersey calls rape a sexual assault. Below are the NJ statutes on sexual assault. Below are the NJ statutes on sexual assault

2C:14-2 Sexual

Assault

a. An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The victim is less than 13 years old;

(2) The victim is at least 13 but less than 16 years old; and

(a) The actor is related to the victim by blood or affinity to the third degree, or

(b) The actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional, or occupational status, or

(c)The actor is a resource family parent, a guardian, or stands in loco parentis within the household;

(3) The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape;

(4) The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object;

(5) The actor is aided or abetted by one or more other persons and the actor uses physical force or coercion;

(6) The actor uses physical force or coercion and severe personal injury is sustained by the victim;

(7) The victim is one whom the actor knew or should have known was physically helpless or incapacitated, intellectually or mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent.

b. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1)The actor uses physical force or coercion, but the victim does not sustain severe personal injury;

2C:14-1 Definitions in sexual assault cases.

2C:14-1. Definitions. The following definitions apply to this chapter:

a. “Actor” means a person accused of an offense proscribed under this act;

b. “Victim” means a person alleging to have been subjected to offenses proscribed by this act;

c. “Sexual penetration” means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor’s instruction. The depth of insertion shall not be relevant as to the question of commission of the crime;

d. “Sexual contact” means an intentional touching by the victim or actor, either directly or through clothing, of the victim’s or actor’s intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. Sexual contact of the actor with himself must be in view of the victim whom the actor knows to be present;

e. “Intimate parts” means the following body parts: sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person;

f. “Severe personal injury” means severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain;

g. “Physically helpless” means that condition in which a person is unconscious or is physically unable to flee or is physically unable to communicate unwillingness to act;

h. (Deleted by amendment, P.L.2011, c.232)

i. “Mentally incapacitated” means that condition in which a person is rendered temporarily incapable of understanding or controlling his conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent, or due to any other act committed upon that person which rendered that person incapable of appraising or controlling his conduct;

j. “Coercion” as used in this chapter shall refer to those acts which are defined as criminal coercion in section 2C:13-5(1), (2), (3), (4), (6). and (7), amended 1983, c.249, s.1; 1989, c.228, s.2; 2011, c.232, s.3.

Indictable Criminal Penalties [Felony type] [ Superior Court]

Jail potential Fine max Probation

1st degree 10- 20 years $200,000 [presumption of jail]

2nd degree 5-10 years $150,000 [presumption of jail]

3rd degree 3- 5 years $15,000 1 year- 5 year

4th degree 0- 18 months $10,000 1 year- 5 year

There are many other penalties that the court must impose in criminal case. There are dozens of other penalties a court can impose, depending on the type of matter. Readwww.njlaws.com/jail_for_crimes_and_disorderly_conduct.html

Sayreville football player also charged with 2C:33-1. Riot

a. Riot. A person is guilty of riot if he participates with four or more others in a course of disorderly conduct as defined in section 2C:33-2a:

(1) With purpose to commit or facilitate the commission of a crime;

(2) With purpose to prevent or coerce official action; or

(3) When he or any other participant, known to him, uses or plans to use a firearm or other deadly weapon.

Riot, if committed under circumstances set forth in paragraph (3) is a crime of the third degree. Otherwise, riot is a crime of the fourth degree.

b. Failure of disorderly persons to disperse upon official order. Where five or more persons are participating in a course of disorderly conduct as defined in section 2C:33-2 a. likely to cause substantial harm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a disorderly persons offense.

2C:13-2. Criminal Restraint

A person commits a crime of the third degree if he knowingly:

a. Restrains another unlawfully in circumstances exposing the other to risk of serious bodily injury; or

b. Holds another in a condition of involuntary servitude.

The creation by the actor of circumstances resulting in a belief by another that he must remain in a particular location shall for purposes of this section be deemed to be a holding in a condition of involuntary servitude. In any prosecution under subsection b., it is an affirmative defense that the person held was a child less than 18 years old and the actor was a relative or legal guardian of such child and his sole purpose was to assume control of such child.

3. Metuchen Fair rescheduled for Saturday Oct. 18 10-4

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e-mail__________________________________
email kenv@njlaws.com or fax your info to 7:
732-572-0030.
11. Defendant has burden to timely to object to
testimony by pathologist who did not perform
the victim’s autopsy State v. Williams __ NJ__
(2014) (A-5-12)
Defendant’s failure to object to the admission
of the testimony on confrontation grounds and his
decision to cross-examine the medical examiner
constitute a waiver of his right of confrontation.
*Editorial Assistance by Jillian Spielman,
3rd year law student, New York Law School.

1. Supreme Court tells Police “Need a Warrant” for
Phone Searches. Riley v. California 134 S. Ct. 999 (2014)
The police generally may not without a warrant, search
digital information on a cell phone seized from an individual
who has been arrested.
2. DWI statute and Alcotest not unconstitutional. State
v. Campbell 436 N.J. Super. 264 (App. Div. 2014)
Defendant appeals his conviction of drunk driving (“DWI”)
and the trial court’s denial of declaratory relief on his claim
of unconstitutionality. Defendant’s prosecution was based
upon an Alcotest reading of his blood alcohol content (“BAC”)
above the per se level of .08 prohibited by N.J.S.A. 39:4-50(a).
He argues that case law authorizing the admission of Alcotest
BAC results when the prerequisites for such admissibility
are shown by “clear-and-convincing” proof, coupled with the
statute’s conclusively incriminating treatment of a BAC at
or above .08, improperly combine to relieve the State of its
constitutional burden of proving a driver’s guilt by the more
rigorous standard of proof “beyond a reasonable doubt.”
The Court rejects defendant’s unconstitutionality claim.
The argument fails to distinguish the State’s threshold burden
of establishing the Alcotest’s evidential admissibility from the
State’s ultimate burden at trail of establishing defendant’s
guilt of a per se offense beyond a reasonable doubt. Even if a
pretrial motion to suppress the BAC results has been denied, a
defendant can still present competing evidence or arguments
at trial to persuade the court that the testing procedures were
flawed and that his guilt has not been proven by the more
stringent reasonable doubt standard.
NJSBA President Paris
Eliades was among the
hundreds who attended the
Summer Happy Hour at Bar
Anticipation.
The St. Patrick’s Happy Hour
is March 13, 2015 at Bar
Anticipation.
Index
1 Supreme Court tells Police “Need a
Warrant” for Phone Searches.
Riley v. California ……………………pg 1
2.DWI statute and Alcotest not un-
constitutional. State v. Campbell..pg 1
3.Driving While Suspended Con-
viction Upheld State v. Sylvester.pg 2
4.Ban on Fake Government
Documents Not Unconstitutional.
State v. Borjas………………………….pg 2
5.Testimony for State by Defendant’s
Investigator Violated Right to
Counsel. State v. Nunez……………pg 2
6.Judge must Recuse from case if
involved as prosecutor. State v.
Presley ……………………………………pg 2
7.Protective sweep permitted
where shots fired in high crime
neighborhood. State v. Gamble…pg 3
8. No warrant for DWI blood for DWI
tickets issued before 2013. State v,
Jones ……………………………………..pg 3
9. Supervising chemist can testify in
vehicular homicide if independently
verified correctness of blood test
results State v. Michaels …………pg 3
10. Supervising chemist can testify
in rape case if they independently
verified correctness of DNA results
State v. Roach ………………………..pg 3
11. Defendant has burden to timely to
object to testimony by pathologist who
did not perform State v. Williams ……
………………………………………….ll….pg 4
Subscription Form. …………….pg 4
Municipal Court Law Review Fall 2014 Kenneth Vercammen, Editor 732-572-0500 www.njlaws.com page 2
3. Driving While Suspended Conviction
Upheld Although DWI Conviction Vacated.
State v. Sylvester __ N.J. Super. __ (App.
Div. 2014)
N.J.S.A. 2C:40-26b makes it a fourth degree
offense to drive while one’s license is suspended
or revoked for a second or subsequent conviction
for driving a car while under the influence of
alcohol (DWI). In a bench trial before the Law
Division on this charge, defendant argued that
her second DWI conviction had been voided ab
initio by the municipal court when it granted her
PCR petition two months after she was indicted
for one count of violating N.J.S.A. 2C:40-26b.
Thus, defendant argues the State cannot rely on
this vacated second DWI conviction to meet its
burden of proof under N.J.S.A. 2C:40-26b. The
trial court rejected this argument. The court
affirmed.
It is undisputed that at the time
defendant committed this offense, she was
aware her driver’s license had been revoked
by a presumptively valid second conviction for
DWI. The court relied on State v. Gandhi, 201
N.J. 161, 190 (2010) to hold that a second DWI
conviction vacated through PCR granted by
a court after a defendant engages in conduct
prohibited in N.J.S.A. 2C:40-26b, cannot be
applied retroactively to bar a conviction under
this statute.
4. Court Says Ban on Fake Government
Documents Not Unconstitutional. State v.
Borjas436 N.J. Super. 375 (App. Div. 2014)
Defendant was found guilty by a jury of three
counts of knowingly making false government
documents, second- degree offenses proscribed
by N.J.S.A. 2C:21-2.1(b), and four counts
of knowingly possessing false government
documents, fourth-degree offenses proscribed
by N.J.S.A. 2C:21-2.1(d). The incriminating
items were created or stored in hard d r i v e s
on computers at defendant’s residence.
The items were discovered by law enforcement
officers pursuant to a search warrant, although
the officers found no printouts of the false items.
The court rejects defendant’s argument that
subsections (b) and (d) of N.J.S.A. 2 C : 2 1 –
2.1 are unconstitutionally overbroad because
they allegedly infringe too much upon protected
forms of expression. In doing so, the court does
not foreclose a future “as-applied” challenge to
the statute by an artist, student, or other person
who, unlike the present defendant, makes or
stores false images for benign reasons involving
constitutionally protected speech.
Additionally, the court rejects defendant’s
argument that the statute is void for vagueness
because it lacks an express element requiring the
State to prove a defendant’s specific intent to use
the false items for illicit purposes. The court also
rejects defendant’s criticisms of the trial judge’s
jury instruction defining the term “document”
under the statute to encompass items or
images stored on a computer. The instruction is
consistent with the broader meaning associated
with the term “document” in common modern
usage.
5. Testimony for State by Defendant’s
Investigator Violated Right to Counsel.
State v. Nunez 436 NJ Super. 70 (App. Div.
2014)
The court reverses defendant’s murder
conviction because the trial judge permitted the
State to bolster its case by calling defendant’s
investigator to testify to a prior consistent
statement of the State’s only eyewitness in
violation of defendant’s right to counsel.
6. Judge must Recuse from case if involved
as prosecutor. State v. Presley 436 N.J.
Super.440 (App. Div. 2014)
In State v. McCann, 391 N.J. Super. 542 (App.
Div. 2007), the court announced a prospective
“bright-line rule” that called for invalidating
search warrants issued by a judge who was
bound to recuse himself or herself based on a
prior relationship. Upon being advised he had
prosecuted one of the defendants when he was
an assistant prosecutor, the trial judge recused
himself. So, the question here is not one of
recusal but of remedy. Defendants here ask
us to apply McCann to the following facts: the
judge prosecuted only one of the defendants;
no defendant alleges the judge was biased or
aware of the disqualifying facts when he issued
the warrants or that there was insufficient
continued from pg.1
Municipal Court Law Review Fall 2014 Kenneth Vercammen, Editor 732-572-0500 www.njlaws.com page 3
probable cause for their issuance; and finally,
the defendant prosecuted by the judge withheld
the disqualifying facts while appearing before
the judge on unrelated matters for “strategic”
reasons for over a year. The court concludes that
McCann is distinguishable; the remedy sought
by defendants will not serve the interests of the
Code of Judicial Conduct; and the appropriate
remedy should be determined by what is
“required to restore public confidence in the
integrity and impartiality of the proceedings, to
resolve the dispute in particular, and to promote
generally the administration of justice.” DeNike
v. Cupo, 196 N.J. 502, 519 (2008).
7. Protective sweep permitted where shots
fired in high crime neighborhood. State v.
Gamble 218 N.J 412 (2014) A-53-12;071234
Under the totality of the circumstances,
which provided the officers with a reasonable
and articulable suspicion that defendant was
engaged in criminal activity, the investigatory
stop and protective sweep of the passenger
compartment of the van were valid.
8. No warrant needed for DWI blood for DWI
tickets issued before 2013. State v, Jones __
NJ Super. __ (App. Div. 2014) A-0793-13TI
The Court granted the State leave to appeal
from an order that suppressed the results of a
blood sample taken without a warrant prior to
Missouri v. McNeely 133 S. Ct. 1552 (2013),
and now reverses. Defendant caused a multiple
vehicle accident, resulting in personal injuries
that required hospitalization. Emergency
personnel took approximately thirty minutes to
extricate the unconscious defendant from her
vehicle and the police investigation took several
hours.
It is undisputed that the blood sample was
obtained consistent with New Jersey law that
existed at the time. The Court need not decide
whether McNeely should be applied retroactively
because the facts support a warrantless blood
sample even if McNeely applies. Although
McNeely rejected a per se exigency rule, it adhered
to the totality of the circumstances analysis set
forth in Schmerber v. California, 86 S. Ct. 1826,
1836 (1966), stating the metabolization of alcohol
was an “essential” factor in the analysis. Further,
the Court noted that the facts in Schmerber
which, like here, included an accident, injuries
requiring hospitalization, and an hours-long
police investigation, were sufficient to justify.
Further, the Court noted that the facts in Schmerber
which, like here, included an accident, injuries
requiring hospitalization, and an hours-long police
investigation, were sufficient to justify a warrantless
blood sample for use in an expert’s comparison
of DNA samples, a defendant’s federal and state
confrontation rights are satisfied so long as the
testifying witness is qualified to perform, and did
in fact perform, an independent review of testing
data and processes, rather than merely read from or
vouch for another analyst’s report or conclusions.
9. Supervising chemist can testify in
vehicular homicide if they independently
verified correctness of blood test results
State v. Michaels __ NJ__ (2014) (A-69-12)
Defendant’s confrontation rights were
not violated by the admission of Dr. Barbieri’s
report or his testimony regarding the blood
tests and his conclusions drawn therefrom. Dr.
Barbieri was knowledgeable about the testing
process, independently verified the correctness
of the machine-tested processes and results,
and formed an independent conclusion about
the results. Defendant’s opportunity to cross-
examine Dr. Barbieri satisfied her right to
confrontation on the forensic evidence presented
against her. Dissent by Justice Albin.
10. Supervising chemist can testify in
rape case if they independently verified
correctness of DNA results State v. Roach
__ NJ Super. __ (App. Div. 2014) (A-129-11)
Defendant’s confrontation rights were not
violated by the testimony of the analyst who
matched his DNA profile to the profile left at
the scene by the perpetrator. Defendant had
the opportunity to confront the analyst who
personally reviewed and verified the correctness
of the two DNA profiles that resulted in a highly
significant statistical match inculpating him as
the perpetrator. In the context of testing for the
purpose of establishing DNA profiles.

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1 Response

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