In C.V. v. Waterford Township Board of Education, (A-24-22/087260) (Decided September 13, 2023), the Supreme Court of New Jersey reinstated a sex discrimination claim brought under the New Jersey Law Against Discrimination (NJLAD) by the parents of a sexual assault victim. In reaching its decision, the court confirmed that sexual touching automatically satisfies the requirement that harassment occur “because of” sex.

Facts of C.V. v. Waterford Township BOE

For five months when C.V. was a pre-kindergarten student, she was repeatedly sexually assaulted by Alfred Dean, a 76-year-old school bus aide. C.V.’s parents only discovered the abuse when C.V. came home without her underwear one day. Dean was indicted and pled guilty to first-degree aggravated sexual assault.

C.V. and her parents sued the Waterford Township Board of Education and Waterford Township School District (collectively, Waterford) alleging, among other things, discrimination in a “place of public accommodation” “on account of . . . sex” in violation of the NJLAD. Dean admitted in his deposition that he had sexually abused at least five children, including his own stepson, over a period of decades. During discovery, plaintiffs submitted evidence that although there were male and female children on the bus with C.V., Dean was only accused of sexually assaulting other female students, not male students.

The trial judge granted summary judgment to Waterford on plaintiffs’ NJLAD claim, finding that “a reasonable jury could not conclude that” any harassment occurred “because of” C.V.’s sex. The court denied plaintiffs’ motions to amend the complaint by adding claims for age discrimination and common law sexual harassment and to compel production of records related to Dean’s intent.

The Appellate Division affirmed the dismissal, concluding that the NJLAD does not apply “to a sexual predator’s assault of a student on a school bus where there is no evidence his actions were based solely on the victim’s status as a member of a protected group.”

NJ Supreme Court’s Decision in C.V. v. Waterford Township BOE

The New Jersey Supreme Court reversed, citing that the Appellate Division’s decision failed to recognize the court’s established precedent regarding the NJLAD.

In her opinion, Justice Rachel Wainer Apter began by clarifying that while the NJLAD prohibits discrimination “because of” sex in employment and discrimination “on account of” sex in public accommodation, the protections against sex discrimination in employment and places of public accommodation are the same. “’Because of’ and ‘on account of’ both incorporate the traditional standard of but-for causation. Under that standard, one event can have multiple but-for causes,” Wainer Apter explained. “In the context of anti-discrimination law, that means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged decision. If the plaintiff’s sex was one but-for cause of that decision, liability may attach.”

The New Jersey Supreme Court went on to find that the Appellate Division erred because its holding conflicted with the precedent established in both Lehmann v. Toys ‘R’ Us, 132 N.J. 587 (1993) and L.W. v. Toms River Regional Schools Board of Education, 189 N.J. 381 (2007). In Lehmann, the New Jersey Supreme Court held that sexual touching of areas of the body linked to sexuality happens, by definition, because of sex. It also delineated a four-part test for an employee “[t]o state a claim for hostile work environment sexual harassment.” In L.W., the court explicitly extended the Lehmann test to claims of hostile school environment sexual harassment brought against schools as places of public accommodation under N.J.S.A. 10:5-12(f).

The New Jersey Supreme Court went on to apply the above standard to the facts of the case. “Here, plaintiffs presented evidence that C.V. was subjected to five months of unwanted sexual touching of her vagina. Under Lehmann, that touching was inherently ‘because of’ C.V.’s sex,” Wainer Apter wrote. “The Appellate Division held the opposite. According to the Appellate Division, not only was sexual touching of C.V.’s vagina not automatically ‘because of’ C.V.’s sex under Lehmann, but it could not, as a matter of law, be ‘because of’ C.V.’s sex. That is twice wrong.”

The New Jersey Supreme Court also noted that even if Dean sexually assaulted multiple boys in the past or had sexually touched the genitals of both girls and boys on the school bus, that would not preclude liability for sexual harassment. As Justice Wainer Apter explained, it is not a defense “[f]or any owner, . . . manager, . . . agent, or employee of any place of public accommodation,” N.J.S.A. 10:5-12(f), to say they did not discriminate “on account of” sex because they sexually touched the genitals of both male and female patrons or students.

Finally, the New Jersey Supreme Court affirmed the Appellate Division’s judgment as to plaintiffs’ motions to amend their complaint and to obtain records of Dean’s intent. “[G]iven that Dean’s subjective intent is irrelevant to plaintiffs’ sexual harassment claims under the LAD, plaintiffs’ reason for seeking the records is now moot,” Justice Wainer Apter wrote. “We therefore affirm the denial of plaintiffs’ motions to compel, but for different reasons from those stated by the trial court.”

In State v. Oscar R. Juracan-Juracan (A-32-22/087849), the Supreme Court of New Jersey held that there is a presumption that foreign language interpretation services will be provided in person during a criminal trial, citing the New Jersey Judiciary’s longstanding practice. Accordingly, the court set forth guidelines and factors to assist trial courts in deciding whether remote interpreting (VRI) service should be used during criminal jury trials.

Facts of State v. Juracan-Juracan

In response to the COVID-19 pandemic, the Court announced amendments to the New Jersey Judiciary’s Language Access Plan (LAP) and expanded the circumstances in which remote interpreting services may be used. Prior to the update, VRI was allowed only for “emergent matters” or “short non-emergent matters of 30 minutes or less.” The 2022 LAP now allows VRI for both “emergent and routine proceedings,” subject to judicial discretion.

In 2019, defendant Oscar R. Juracan-Juracan, a native speaker of Kaqchikel — a language spoken by approximately 450,000 people worldwide — was charged with several offenses related to an alleged sexual assault. During pre-trial proceedings, he requested a Kaqchikel interpreter and one was provided. The interpreter, however, resided on the West Coast, so he appeared remotely. Additionally, the Kaqchikel interpreter did not speak English, only Kaqchikel and Spanish, so a second interpreter was required to translate to and from Spanish and English.

After the court advised counsel that the Kaqchikel interpreter would continue to participate virtually during the jury trial, defendant moved for in-person interpretation services. During the motion hearing, the Kaqchikel interpreter expressed concerns about his ability to provide interpretation services remotely during the trial. The trial court denied defendant’s motion, advising the Kaqchikel interpreter that the court would give him “as much time as you need, understanding the complexities, not only of interpretations, interpreting through two individuals, and also virtually.” The trial court reasoned that proceeding with VRI during the trial was “what’s financially feasible, what’s fair, what’s just.”

The Appellate Division denied defendant’s motion for leave to appeal in light of the VRI policy change.

NJ Supreme Court’s Decision in State v. Juracan-Juracan

The New Jersey Supreme Court reversed. It held that in a criminal jury trial, there is a presumption that foreign language interpretation services will be provided in person, which is “consistent with the New Jersey Judiciary’s longstanding practice.” It remanded the matter for the trial court to reconsider whether VRI is appropriate in the current case after assessing the factors articulated in the opinion.

In reaching its decision, the New Jersey Supreme Court acknowledged that “the spoken word is unquestionably the principal method of communication during in-court proceedings, so a participant’s ability to understand and communicate through language is key to ensuring the fairness of the proceedings.” It also noted that New Jersey courts have recognized a criminal defendant’s right to an interpreter and the constitutional underpinnings of that right.

As the New Jersey Supreme Court explained in its opinion, the use of VRI has evolved over time. While it was initially limited to emergent circumstances, the COVID-19 pandemic required it to be used more frequently. In 2020, in light of ongoing remote court operations, the Court approved an addendum to the 2017 LAP that expanded the standard for the use of remote interpreting by permitting remote interpreting services to be used for emergent or non-emergent matters even if longer than 30 minutes when an on-site interpreter is not available, including during an emergency that prevents the courts from operating in person. Two years later, the Court revised the LAP in part to formalize judicial discretion to authorize remote interpreting services for emergent and routine proceedings consistent with current and ongoing practices.

Going forward, the New Jersey Supreme Court established guidelines and factors to assist trial courts in deciding whether VRI should be used during criminal jury trials. In considering whether to proceed to a jury trial with in-person or remote interpreting, trial courts, in exercising their discretion pursuant to the 2022 LAP, should take into consideration the following nonexclusive list of factors: (1) the nature, length, and complexity of the trial; (2) the number of parties and witnesses involved; (3) whether an interpreter is available to interpret in person at trial; (4) the impact any substantial delay in obtaining an in-person interpreter would have on the defendant and on third-parties such as co- defendants or victims; (5) whether the defendant tentatively plans to testify; (6) the financial costs associated with in-person interpreting as compared to remote interpreting; and (7) the interpreters’ position as to whether they believe they can adequately fulfill their duties to interpret accurately and meet professional standards while interpreting virtually.

“In the rare cases in which VRI is used for a criminal jury trial, guardrails should be put in place to ensure a fair trial for defendants, and a trial court’s decision to use remote instead of in-person interpreting services should be approved by the Assignment Judge or Presiding Judge,” the court added. “To the extent that costs are a consideration, the vicinage should consult with the Administrative Office of the Courts for further guidance.”

In Cardali v. Cardali (A-25-22/087340) (Decided August 8, 2023), the Supreme Court of New Jersey clarified what is needed to obtain discovery in a motion seeking to terminate or suspend alimony payment. Under the court’s decision, a movant need not present evidence on all of the cohabitation factors in order to make a prima facie showing. If the movant’s certification addresses some of the relevant factors and is supported by competent evidence, and if that evidence would warrant a finding of cohabitation if unrebutted, the trial court should find that the movant has presented prima facie evidence of cohabitation.

Facts of Cardali v. Cardali

Plaintiff Suzanne Cardali and defendant Michael Cardali entered into a property settlement agreement (PSA), which was incorporated in their judgment of divorce in December 2006. The PSA provided that defendant’s obligation to pay plaintiff alimony would end upon her “cohabitation,” as defined by New Jersey law.

In December 2020, the Defendant filed a motion to terminate alimony, stating he believed that the Plaintiff and an individual named Bruce McDermott had been in “a relationship tantamount to marriage” for more than eight years, over the course of which they attended family functions and other social events as a couple, memorialized their relationship on social media, and vacationed together. The Defendant submitted the report of a private investigator indicating that the Plaintiff and McDermott were together on all of the 44 days that they were under surveillance, and that they were together overnight on more than half of those days. The investigator’s report included photographs of the Plaintiff and McDermott carrying groceries, bags of personal belongings, and laundry in and out of one another’s residences. The investigator stated the Plaintiff had access to McDermott’s home when McDermott was not at home.

The trial court denied the Defendant’s application, and the Appellate Division affirmed. discovery issues.

NJ Supreme Court’s Decision in Cardali v. Cardali

The New Jersey Supreme Court reversed. It held that a movant need not present evidence on all of the cohabitation factors set forth in Konzelman v. Konzelman, 158 N.J. 185, 202 (1999) — or in N.J.S.A. 2A:34-23(n), for cases in which the PSA was executed after the statute’s enactment — to make a prima facie showing. If the movant’s certification addresses some of the relevant factors and is supported by competent evidence, and if that evidence would warrant a finding of cohabitation if unrebutted, the trial court should find that the movant has presented prima facie evidence of cohabitation and should grant limited discovery tailored to the issues contested in the motion, subject to any protective order necessary to safeguard confidential information.

In its opinion, the court explained that it observed in Konzelman that “[c]ohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage,” including, but “not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple’s social and family circle.” In 2014, the Legislature amended the alimony statute, which now prescribes a standard for trial courts to apply when they determine whether the record supports a finding of cohabitation, including factors similar to those identified in Konzelman.

The New Jersey Supreme Court next turned to the prima facie showing necessary for a court to order discovery in a dispute over cohabitation. Because the parties’ PSA was executed before N.J.S.A. 2A:34-23(n) was enacted, the appeal was governed by the definition of “cohabitation” and the factors identified in Konzelman. Nonetheless, the court addressed the requirements for a prima facie showing in both categories of cases.

“Nothing in Konzelman or N.J.S.A. 2A:34-23(n) suggests that the movant must present evidence relevant to all of the factors in order to set forth a prima facie case. Indeed, any such requirement would impose an unfair burden on a movant at the preliminary stage,” the court held. “Absent discovery, a movant is unlikely to have access to the financial records and other documents relevant to Konzelman’s financial factors—’intertwined finances such as joint bank accounts’ and ‘sharing living expenses’—or their statutory counterparts, N.J.S.A. 2A:34-23(n)(1) and (n)(2).”

The New Jersey Supreme Court went on to explain that any such requirement would impose an unfair burden on a movant at the preliminary stage. “Absent discovery, a movant is unlikely to have access to the financial records and other documents relevant to Konzelman’s financial factors — ‘intertwined finances such as joint bank accounts’ and ‘sharing living expenses’ — or their statutory counterparts, N.J.S.A. 2A:34-23(n)(1) and (n)(2),” the court explained.

Accordingly, the New Jersey Supreme Court concluded that if the movant presents a certification supported by competent evidence as to at least some of the relevant factors, and if that evidence, if unrebutted, would sustain the movant’s burden of proof as to cohabitation, the court should find that the movant has made a prima facie showing even if the spouse or civil union partner receiving alimony presents a certification contesting facts asserted by the movant. The court did advise that in fashioning its discovery order, the trial court should take appropriate steps to safeguard the privacy of the spouse or civil union partner receiving alimony and the individual with whom that person is alleged to be cohabiting. According to the court, those steps may include, but are not limited to limited to, constraints on the discovery to be provided to the movant and protective orders limiting access to the information subject to discovery.

In this case, the New Jersey Supreme Court found that the Defendant presented prima facie evidence as to several of the Konzelman cohabitation factors, and that evidence, if unrebutted, would warrant a finding of cohabitation. “Assuming, for purposes of the prima facie inquiry, that defendant’s contentions are correct, we view the evidence he presented to constitute a prima facie showing of cohabitation,” the court wrote. The court went on to find that the Defendant was entitled to limited discovery. It remanded the case back to the lower court for further proceedings.

In State v. Stephen A. Zadroga (A-22-22/087156) (Decided August 9, 2023), the Supreme Court of New Jersey held that double jeopardy did not bar the retrial of defendant Stephen A. Zadroga. In reaching its decision, the court declined to adopt a per se rule that whenever a mistrial follows the State’s bad faith or inexcusable neglect, retrial is barred on all counts.

Facts of State v. Zadroga

In November 2017, two cars collided head-on in Jersey City. Defendant Stephen A. Zadroga (Defendant) was driving 85-88 miles per hour 3 seconds before the crash; the posted speed limit was 25. In addition to witnesses’ statements about the speed at which the Defendant was driving, there was evidence that his car was over the yellow lines, into opposing traffic, at the time of the collision. Defendant’s best friend died in the crash.

Pursuant to a warrant, the State seized and tested what they thought was the Defendant’s blood. The blood alcohol content (BAC) came back as 0.376%, more than four times the legal limit. Relying on that evidence, the grand jury charged defendant with aggravated manslaughter, death by auto, and three counts of driving while intoxicated.

After the nurse who drew the Defendant’s blood testified for the State at trial, the State realized that the blood they believed to be defendant’s had actually come from a person who had died seven months before the accident. After the State discovered the error, the Defendant moved to dismiss the indictment with prejudice because the grand jury had relied on false testimony to indict him.

The trial court granted the Defendant’s motion as to the counts of driving while intoxicated but denied the motion as to counts one and two, aggravated manslaughter and death by auto. The court found that allowing the Defendant to be retried on the counts unrelated to intoxication would not violate his rights under the Double Jeopardy Clause both because he consented to the trial’s termination and because there was a manifest necessity to terminate the trial. The Appellate Division affirmed on manifest necessity grounds, adding that while the State could present counts one and two to a new grand jury, it could not present any evidence that the Defendant was under the influence of alcohol at the time of the collision.

Double Jeopardy

Double jeopardy prohibits different prosecutions for the same offense. The Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, protects defendants from repeated prosecutions for the same offense by guaranteeing that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The New Jersey Constitution has its own double jeopardy clause, providing that “[n]o person shall, after acquittal, be tried for the same offense.”

The U.S. Supreme Court has held that termination of a trial after jeopardy attaches does not necessarily prohibit subsequent re-prosecution. Rather, only the improper termination of proceedings bars retrial.

Pursuant to Oregon v. Kennedy, 456 U.S. 667, 672 (1982), there are two circumstances in which termination can be proper, and a retrial not barred by double jeopardy principles. First, where the defendant does not request or otherwise consent to a mistrial, termination is proper and there is no bar to retrial only if there is a “manifest necessity” to terminate the proceedings. The manifest necessity standard protects “the defendant’s interests in having his case finally decided by the jury first selected while at the same time maintaining ‘the public’s interest in fair trials designed to end in just judgements.’”

Second, when the defendant requests or otherwise consents to a mistrial, manifest necessity need not be shown. Instead, under the federal Due Process Clause, termination is not improper and there is no bar to retrial as long as the prosecutor did not “‘goad’ the defendant into moving for a mistrial.”

NJ Supreme Court’s Decision in State v. Zadroga

The New Jersey Supreme Court affirmed. It held that the trial court did not abuse its discretion in finding manifest necessity justified a mistrial. It further agreed with the Appellate Division that the State can present the counts of aggravated manslaughter and death by auto to a new grand jury based solely on the reckless driving evidence, without any evidence on intoxication.

In reaching its decision, the New Jersey Supreme Court disagreed with the Defendant’s reading of State v. Farmer, 48 N.J. 145 (1966), to preclude a finding of manifest necessity if the State acted in bad faith or was guilty of inexcusable neglect. According to the court, four features of Farmer make clear that it did not categorically bar retrial even if there is a finding that the State’s conduct reflected bad faith or inexcusable neglect.

First, Farmer acknowledges that “there is no over-all formula, no hard and fast rule for determining when an order of mistrial will cause the jeopardy bar to spring into being, [and so] each case must depend upon its own facts and the urgency of its circumstances.” Second, Farmer emphasizes the “wide range of discretion” in finding a manifest necessity “recognized in the trial judge, who has his finger on the pulse of the proceedings.” Third, Farmer twice explains that appellate courts should not find an abuse of discretion where the trial court declares a mistrial to protect a defendant’s interests. Fourth, the Farmer Court acknowledged that a declaration of manifest necessity must balance “the right of the accused to be prosecuted fairly and not oppressively” against “the societal right to have the accused tried and punished if found guilty.”

The New Jersey Supreme Court went on to find that the trial court did not abuse its discretion in balancing those interests in this case. Among other factors, the court cited the trial judge based his decision not on a concern that the State would be prejudiced by continuing with the trial, but by a desire to avoid prejudicing the defendant by forcing him to continue with a trial when the grand jury may have based its decision to indict on false testimony, and when defendant therefore may not have been indicted at all without the BAC evidence.

The New Jersey Supreme Court also disagreed that allowing a retrial would confer any unfair advantage on the State. “We have previously held that the ‘essence to the doctrine of jeopardy’ is ‘that the State may not retreat from the field when its case turns sour and then be permitted to sally forth on a future day before a new jury when its case is refreshed and reinforced,’” Justice Rachel Wainer Apter wrote. “The State did no such thing here.” Because it found there was no abuse of discretion in finding the mistrial was supported by manifest necessity, the New Jersey Supreme Court did not reach whether the Defendant consented to the mistrial or his request to depart from the Kennedy standard in cases of consent.

In Crisitello v. St. Theresa School (A-63-20) (085213) (Decided August 14, 2023), the Supreme Court of New Jersey held that a Catholic school could terminate a teacher for having premarital sex. According to the state’s highest court, the termination was legal under the New Jersey Law Against Discrimination’s (LAD) “religious tenets” exception, which states “it shall not be an unlawful employment practice” for a religious entity to follow the tenets of its faith “in establishing and utilizing criteria for employment.”

Facts of Crisitello v. St. Theresa School

The St. Theresa School is a Roman Catholic elementary school that uses the official “Archdiocese of Newark Policies on Professional and Ministerial Conduct,” the first section of which contains its Code of Ethics. In part, the Code of Ethics requires employees to “conduct themselves in a manner that is consistent with the discipline, norms[,] and teachings of the Catholic Church.”

In 2011, St. Theresa’s hired Victoria Crisitello, a former student, who signed an acknowledgment of her receipt and understanding of employment documents, including the Code of Ethics. In 2014, Sister Lee, the school principal, approached Crisitello about the possibility of teaching art full time. During their meeting, Crisitello stated that she was pregnant. A few weeks later, Sister Lee told Crisitello that she had violated the Code of Ethics by engaging in premarital sex and thus could not remain on St. Theresa’s staff.

Crisitello filed a complaint alleging discrimination based on pregnancy and marital status. The trial court granted summary judgment in favor of St. Theresa’s. According to the court, “the record is bare of any evidence that even remotely suggests that [Crisitello’s pregnancy out of wedlock] is not the real reason for her termination.” The trial court also found significant evidence in the record that St. Theresa’s supports its married teachers who become pregnant and that another Catholic school, also within the Archdiocese of Newark, fired an unmarried male teacher after he revealed that his girlfriend was pregnant with their child.

The Appellate Division reversed, holding that “knowledge or mere observation of an employee’s pregnancy alone is not a permissible basis to detect violations of the school’s policy and terminate an employee.” The court distinguished this case from Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), on the basis that Crisitello did not perform “vital religious duties.” The appellate court ruled that despite Crisitello’s concession — that she knew premarital sex violated the tenets of the Catholic Church — neither the Code of Ethics nor the employee handbook expressly mentioned premarital sex or that it would result in termination.

NJ Supreme Court’s Decision in Crisitello v. St. Theresa School

The New Jersey Supreme Court reversed. The court first held that the “religious tenets” exception of N.J.S.A. 10:5-12(a) is an affirmative defense available to a religious entity when confronted with a claim of employment discrimination. The court further found that the uncontroverted fact is that St. Theresa’s followed the religious tenets of the Catholic Church in terminating Crisitello. “The religious tenets exception allowed St. Theresa’s to require its employees, as a condition of employment, to abide by Catholic law, including that they abstain from premarital sex,” the court wrote.

The New Jersey Supreme Court first addressed the LAD’s religious tenet’s exception. It instructed that because the Legislature expressly prescribed an exception to liability under the LAD based on a religious institution’s reliance on the tenets of its faith in setting employment criteria, the religious tenets exception is an affirmative defense which must be pled and proven. If it is pled and proven, the employer need not contest the plaintiff’s allegations. As the court explained:

In LAD cases where a religious employer invokes the religious tenets exception, the employer must demonstrate that the challenged employment decision relied solely on employment criteria adopted pursuant to the tenets of its religion. If the plaintiff employee fails to raise a genuine dispute of material fact as to whether the challenged employment decision relied solely on the religious tenets of the employer, then the affirmative defense stands as an absolute bar to liability. Of course, when the record reveals questions of material fact regarding whether a religious employer relied exclusively on a plaintiff’s violation of a religious tenet in taking adverse employment action against the plaintiff, the matter before the court is not ripe for summary judgment.

The New Jersey Supreme Court went on to conclude that St. Theresa’s had validly asserted the religious tenets exception as an affirmative defense and that Crisitello has not raised any genuine dispute of material fact regarding the applicability of that defense. To support its conclusion, the court cited that Crisitello acknowledged that St. Theresa’s required her to abide by the tenets of the Catholic faith, including that she abstain from premarital sex, as a condition of her employment. Additionally, the record evidence demonstrates that St. Theresa’s consistently maintained its position that Crisitello was terminated for violating Catholic law by engaging in premarital sex. And Crisitello has presented no evidence to counter St. Theresa’s asserted position. In reaching its decision, the New Jersey Supreme Court also rejected the Appellate Division’s reasoning that the lack of evidence regarding “how male or non-pregnant female teachers who engaged in premarital sex were detected or treated” precluded summary judgment. “We reject the Appellate Division’s novel suggestion that Crisitello’s firing was evidence of pretext simply because St. Theresa’s did not ‘survey’ its employees to discover other transgressions of the faith,” the court wrote. “Neither the LAD nor our case law requires such an investigation, and we decline to impose this burden.”

In State v. Quintin D. Watson (A-23-22/087251) (Decided August 2, 2023), the Supreme Court of New Jersey held that first-time in-court identifications may only be conducted when there is good reason for them. In addition, before attempting to conduct a first-time in-court identification, the State must give fair notice to the defense. The New Jersey Supreme Court also placed limitations on narration evidence, holding that that the rules of evidence do not allow for continuous, running commentary on video evidence by someone who has merely studied a recording.

Facts of State v. Watson

Defendant Quintin Watson was convicted of bank robbery based on evidence that included testimony from a teller, who identified defendant for the first time in court. The evidence also included testimony from the lead detective, who narrated a bank surveillance video for the jury.

In January 2017, an individual wearing a baseball cap and gloves robbed a bank in North Brunswick. Bank surveillance footage captured the entire 57-second robbery. In November 2017, defendant was charged in three other robberies after his former girlfriend, “Joan,” identified him in a wanted photo from one of those robberies. After the office investigating the other robberies notified the North Brunswick Police Department about defendant, he became a suspect in the North Brunswick robbery as well. In September 2018, a detective showed the teller six photos, one at a time, and asked if he could identify the person who robbed the bank. The teller picked a photo of someone other than defendant and said at trial that he was 75-90 percent sure of the identification.

At trial, the prosecutor asked the teller if he could identify the robber in court. The teller identified defendant, who was seated in between his lawyers at counsel table. The teller said he was “maybe like . . . 80 percent” sure. The prosecution did not provide advance notice of the in-court identification, and defense counsel did not object to it. During cross-examination, the teller revealed that he had met with the prosecutor prior to trial and that the prosecutor had “informed [him] that the individual who was accused of committing this robbery is in court seated at the defense table.” Joan also testified at trial. She was shown two still photos from the bank surveillance video and testified she was 100 percent positive that each depicted defendant.

Sergeant Frank Vitelli, Jr., testified about the investigation. Over objection, Sergeant Vitelli narrated the bank surveillance video. The prosecutor asked a series of questions while the video was played for the jury, ranging from general inquiries — “What do you see?” — to specific ones — “With what [did he open the door]?” The more open-ended questions invited and led to more open-ended narrative responses. Sergeant Vitelli also testified about how his department learned about defendant. He confirmed that he had been “contacted by another law enforcement agency regarding” defendant, and that he “consult[ed] with that law enforcement agency . . . after which criminal complaints were signed against” defendant.

NJ Supreme Court’s Decision in State v. Watson

The New Jersey Supreme Court reversed, holding that the identification alone was sufficient to overturn the conviction. With regard to the investigator’s testimony, the court further held that the rules of evidence do not allow for continuous, running commentary on video evidence by someone who has merely studied a recording.

The New Jersey Supreme Court first addressed first-time in-court identifications. It held that to avoid unduly suggestive identifications in court that can trigger serious due process concerns, first-time in-court identifications may only be conducted when there is good reason for them. In addition, before attempting to conduct a first-time in- court identification, the State must give fair notice to the defense.

“In the case of first-time in-court identifications, witnesses are asked if they can identify their culprit long after the crime took place. They see a single individual seated at the defense table beside a lawyer. And it is evident the prosecution team believes that person is the culprit,” Chief Justice Stuart Rabner wrote. “The inherently suggestive nature of the procedure, conducted in front of a jury, evades well-settled protections that the law provides. It therefore risks depriving defendants of their due process rights.”

Going forward, the New Jersey Supreme Court advised that certain practices be applied to proposed first-time in-court identifications: (1) The State must file a motion in limine if it intends to conduct a first-time in-court identification, and the parties and the court should explore at the hearing whether good reason exists; (2) Prosecutors must disclose in writing anything discussed with a witness during trial preparation that relates to an upcoming in-court identification; (3) if a hearing is needed to determine admissibility, it should be conducted and resolved before the start of trial.

The New Jersey next turned to the narration evidence. The court acknowledged that such evidence can be helpful by drawing attention to key details that a jury might otherwise overlook, particularly when a dealing with a potentially confusing, complex, or unclear recording. However, the court further found that the rules of evidence do not allow for continuous, running commentary on video evidence by someone who has merely studied a recording.

The New Jersey Supreme Court also identified certain safeguards to underscore the limited use of narration evidence, writing: “investigators should give focused responses to specific questions; they can provide objective, factual comments but not subjective interpretations; they may not comment on facts that are reasonably in dispute, which should be left for the jury to decide; and they should not offer testimony based on inferences drawn from other evidence.” The court further directed that a party that intends to present narration evidence should provide opposing counsel a written summary of the proposed testimony before trial. The parties can then ask the court to address any disputed areas at a Rule 104 hearing.

In State v. Andreas M. Erazo (A-16-22/086991) (Decided June 21, 2023), the Supreme Court of New Jersey ruled that law enforcement was not required to administer Miranda warnings to the defendant when he voluntarily came to the police station to provide a witness statement because he was not yet a suspect. The court further held that the defendant’s waiver of his Miranda rights before his second interview with police was knowing, intelligent, and voluntary and, thus, his confession should not be suppressed.

Facts of State v. Erazo

One night in July 2017, eleven-year-old A.S. disappeared. Responding officers knocked at Defendant Andreas M. Erazo’s (Defendant or Erazo) door, near where A.S.’s brother had seen her earlier. Defendant denied having seen A.S. that evening and allowed the officers to enter his apartment to look for her, but they found nothing suspicious. Police returned early the next morning to conduct a second search but again found nothing. About five and a half hours later, police discovered A.S.’s body on the roof of a shed behind the apartment building, below a window of the Defendant’s apartment.

Police asked the Defendant to ride with them to the Keansburg Police station to provide a witness statement. Two detectives met him in the lobby and explained that they wanted to talk to him but needed to find a place to do so. About twenty minutes later, the detectives escorted the Defendant to the only available interview room, which was located on the second floor and was not equipped with audio or video recording equipment. The Defendant stated that he knew there was a missing persons investigation and agreed to provide any information he had that could help. The detectives testified that they believed they were taking a witness statement and thus did not administer Miranda warnings or record the interview.

After a 90-minute interview, the detectives asked if the Defendant needed food, water, or a bathroom break. He asked only to smoke a cigarette. The detectives left defendant alone, unrestrained, in the interview room without locking the door. They were then told that a neighbor saw someone matching A.S.’s description enter apartment 16A with someone matching the Defendant’s description on the day A.S. disappeared.

The detectives now considered the Defendant to be a suspect and sought to move him to the first-floor interview room, which had audio and video recording capabilities, to question him about the neighbor’s statements. At no time between the interview on the second floor and the recorded interview on the first floor did officers restrain the Defendant or discuss the investigation. About five hours after the Defendant’s interview on the second floor ended, the detectives started to interrogate the Defendant about the investigation.

Detective Wayne Raynor stated that they would continue on with their conversation “[b]ut before we do that, because we’re in the police department, okay, you’re not under arrest, but because we’re in a police department . . . . Because we want to talk to you about this[,] I’m going to advise you of your Miranda rights.” Raynor then read the Miranda warnings, after which the Defendant verbally acknowledged his understanding. Defendant reviewed his answers to the Miranda warnings and initialed next to each statement on the Miranda form. Raynor read the waiver clause: “‘Having these rights in mind I wish to waive or give up these rights and make a knowing and voluntary statement and answer questions.’ That means you’re okay with talking to us.” Defendant replied, “Yes.” The Defendant and the detectives then signed and dated the form.

After some questioning and a cigarette break in the interview room, the Defendant stated that he would rather talk to the detectives off-camera, explaining that he would prefer that his mother and girlfriend not see or hear the interview. Defendant then confessed. When the detectives asked the Defendant for a DNA sample, he responded that he would like to talk to his lawyer. The detectives stopped all questioning at that point and arrested the Defendant, who was later indicted on seven counts.

Defendant moved to suppress the statements he made to the detectives in the first and second interviews. The trial court found that the Defendant was not in custody at the time of the first interview and that Miranda warnings were therefore not required. The trial court also found, based on Raynor’s credible testimony and the video of the second interview, that the State proved beyond a reasonable doubt that the Defendant’s Miranda waiver was knowing, intelligent, and voluntary, and that his confession should be admitted at trial.

Defendant pled guilty to murder and aggravated sexual assault of a victim under the age of thirteen. He then appealed, arguing that his motion to suppress should have been granted. The Appellate Division reversed the trial court’s decision, finding that the Defendant’s statements from both interviews should have been suppressed.

NJ Supreme Court’s Decision in State v. Erazo

The Supreme Court of New Jersey reversed. It held that the Defendant was not in custody during his first interview, and thus not yet owed Miranda warnings. It further held that the Defendant’s subsequent Miranda waiver was knowing, intelligent, and voluntary. Thus, his confession need not be suppressed.

“Defendant was not in custody at the time of the pre-confession interview, and thus Miranda v. Arizona, 384 U.S. 436 (1966), is not implicated, nor must we consider the factors set forth by this Court in State v. O’Neill, 193 N.J. 148 (2007), to assess the admissibility of defendant’s subsequent, Mirandized confession,” the court held. “We also find that the detectives’ tactics during the Mirandized interrogation were not coercive, did not minimize the Miranda warnings, and were consistent with our holding in State v. Sims, 250 N.J. 189 (2022). Thus, under the totality of the circumstances, defendant’s Miranda waiver was knowing, intelligent, and voluntary, and the trial court properly denied his motion to suppress.”

The New Jersey Supreme Court agreed with the trial court that the Defendant was not in custody when he was first interviewed by the detectives. As the court explained:

There is no evidence that defendant was forced to go to the police station or that he was handcuffed during the drive. Indeed, there is no reason to believe that the short trip was anything but voluntary. Moreover, when defendant arrived at the station, he sat on a bench — unsupervised and unrestrained — among other members of the public, including his neighbors from the apartment complex and members of A.S.’s family. In no way was defendant’s freedom of action restrained to a “degree associated with” formal arrest.

The New Jersey Supreme Court also noted that nothing about the interview suggested that it was custodial. Moreover, it was only after the interview that the detectives considered the Defendant a suspect.

The New Jersey Supreme Court next turned to whether the Defendant’s Miranda waiver at the beginning of his second interview was knowing, intelligent, and voluntary under the totality of the circumstances. It concluded the waiver was valid, explaining:

Although defendant had minimal experience with the criminal justice system, the inquiry is the totality of the circumstances. Here, the trial court found that the detectives were accommodating, even “paternalistic” toward defendant, a literate adult whom they allowed to take breaks, smoke, eat, and drink. Furthermore, police fully apprised defendant of his rights, and he asserted his right to counsel when detectives asked for a DNA sample; the detectives stopped all questioning at that point. On those facts — all adequately supported by the record — we agree with the trial court: defendant received and understood his Miranda rights.

Based on the foregoing, the New Jersey Supreme Court found that neither the Fifth Amendment nor New Jersey’s common law called for suppression of the Defendant’s statements.

In State v. Rami A. Amer (A-9-22/086950) (Decided July 3, 2023), the Supreme Court of New Jersey clarified defendants’ speedy trial rights under the Interstate Agreement on Detainers (IAD), an interstate compact addressing the transfer of a prisoner from the jurisdiction in which he is incarcerated to another jurisdiction in which he faces criminal charges. It held that pretrial defense motions render a defendant “unable to stand trial” and, thus, toll the IAD’s 180-day trial deadline. It further found that defendants are “brought to trial” when jury selection begins.

Facts of State v. Amer

Defendant Rami A. Amer (Defendants) was arrested in New Jersey in November 2016 in connection with seventeen burglaries. He was arrested the next month in Pennsylvania in connection with a series of burglaries committed in that state. In October 2017, Defendant pled guilty to the charges pending against him in Pennsylvania and was incarcerated there. On February 23, 2018, the State received Defendant’s notice under the IAD, in which he requested the prompt disposition of his New Jersey charges. Defendant was transported from Pennsylvania to New Jersey the same day.

On May 21, 2018, Defendant filed two motions to suppress, which were denied 53 days later, on July 13. During jury selection on July 24, 2018, the trial judge informed counsel that after July 31, the trial would resume on September 13, 2018. Neither party objected to that proposed schedule, but when jury selection resumed the next day, defense counsel stated that the IAD required the trial to begin on August 22, 2018, and argued that Defendant’s rights under the IAD would be violated if, for example, the court began a trial but “put it off [for] six months.”

When a jurisdiction in which the prisoner is subject to an “untried indictment, information or complaint” imposes a detainer against him, and the prisoner gives notice that he requests a transfer to that jurisdiction for a final disposition of his charges there, he must be “brought to trial within 180 days” of the receiving jurisdiction’s receipt of that notice.

That 180-day deadline for trial, however, may be extended in accordance with the compact’s provisions. Pursuant to N.J.S.A. 2A:159A-6(a), that time period “shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.” In addition, the court with jurisdiction over the prisoner “may grant any necessary or reasonable continuance” for good cause, subject to conditions prescribed by the IAD.

The trial court ultimately entered an order stating that trial had commenced for IAD purposes on July 24, 2018, when jury selection began, and that the IAD’s 180-day time period had been tolled between the filing and the denial of Defendant’s motions.

In an August 28, 2018 letter, Defendant contended that the trial court had violated his rights under the IAD to a trial by August 22, 2018. Treating Defendant’s letter as a motion to dismiss his indictment, the trial court denied the motion. In October 2018, the jury convicted Defendant on four counts. Defendant appealed, challenging in relevant part the ruling that his IAD rights were not violated.

The Appellate Division affirmed on that issue, holding that defense counsel waived Defendant’s right to be brought to trial within 180 days of his notice pursuant

to the IAD. It further concluded that Defendant was “unable to stand trial” for purposes of N.J.S.A. 2A:159A-6(a) while his pretrial motions were pending; that N.J.S.A. 2A:159A-3(a)’s 180-day period for the commencement of trial was tolled during that period; and that the trial court had properly granted a continuance extending the deadline.

NJ Supreme Court’s Decision in State v. Amer

The New Jersey Supreme Court held that Defendant’s speedy trial rights under the IAD were not violated. It did not concur with the Appellate Division that defense counsel waived Defendant’s rights under the IAD. However, it did agree that the IAD’s 180-day time period was tolled during the pendency of Defendant’s pretrial motions, and that Defendant was “brought to trial” when jury selection began prior to the deadline set by N.J.S.A. 2A:159A-3(a).

The New Jersey Supreme Court first found that Defendant’s counsel did not waive Defendant’s rights under the IAD. In support, it noted that it was the trial judge, not defense counsel, who expressed a preference for delaying the State’s presentation until September. As further emphasized by the court, defense counsel conceded only that the trial could not be completed on July 31, 2018, and he consistently asserted Defendant’s rights during trial.

The New Jersey Supreme Court next turned to whether the 180-day period prescribed by the IAD was tolled while Defendant’s motions to suppress were pending, agreeing with the Appellate Division that it was tolled. In reaching its decision, the court cited that a large majority of federal courts of appeals that have considered whether pretrial defense motions render a defendant “unable to stand trial” have answered that question in the affirmative, as have the courts of several sister states.

The New Jersey Supreme Court, however, made it clear that it was not construing N.J.S.A. 2A:159A-6(a) to indefinitely toll the IAD’s speedy trial provisions if a defendant subject to the interstate compact files a pretrial motion. As the court explained:

[A] defendant who has filed a pretrial motion in an IAD case should be considered “unable to stand trial” under N.J.S.A. 2A:159A-6(a) during the pendency of a pretrial motion, with an important caveat: N.J.S.A. 2A:159A-3(a)’s 180-day trial deadline should not be tolled during any portion of the period in which the defendant’s motion was pending that would not be considered excludable time for speedy trial purposes under Rule 3:25-4(i)(3). We impose that limitation to ensure that defendants in cases governed by the IAD will not be subjected to inordinate trial delays when they file motions with the trial court.

Finally, the New Jersey Supreme Court agreed with its sister courts in two other states that theDefendant was “brought to trial” when jury selection began. Accordingly, he was brought to trial well in advance of the deadline set by N.J.S.A. 2A:159A-3(a), as tolled pursuant to N.J.S.A. 2A:159A-6(a).

In State v. Cornelius C. Cohen (A-50-21/084493) (Decided June 22, 2023), the Supreme Court of New Jersey held that the odor of marijuana in a vehicle did not authorizes a search of the engine compartment and trunk under the automobile exception to the warrant requirement.

Facts of State v. Cohen

After receiving a tip from a confidential informant that defendant Cornelius Cohen regularly traveled out of state to acquire firearms for subsequent sale in New Jersey, the New Jersey State Police issued a “be on the lookout” notice for two vehicles defendant was known to use. After spotting one of the cars on the New Jersey Turnpike, State Trooper Charles Travis followed the vehicle for a few miles before initiating a traffic stop for failure to maintain the lane and a suspected toll violation.

During the stop, Trooper Travis detected the smell of raw marijuana while speaking with defendant at the window of the vehicle. After searching the passenger compartment and finding no marijuana, the trooper continued his search by opening the hood of the car. He discovered a rifle and a revolver nestled in the vehicle’s engine compartment. Trooper Travis then opened the trunk and found a bag containing hollow point bullets. Despite Trooper Travis’s detection of the odor of marijuana, no marijuana was found.

Defendant moved to suppress the items seized during the warrantless search and the trial court denied his motion. Thereafter, defendant pled guilty to one count of second-degree unlawful possession of a weapon and was sentenced to five years’ imprisonment. The Appellate Division affirmed defendant’s conviction and sentence, finding no error in the trial court’s admission of the evidence seized from the engine compartment and trunk.

NJ Supreme Court Decision in State v. Cohen

The Supreme Court of New Jersey reversed, holding that the seized evidence should be suppressed. According to the court, expanding the search to the engine compartment and trunk went beyond the scope of the automobile exception. Although the trooper smelled marijuana in the passenger compartment of the car, his initial search yielded no results and provided no justification “to extend the zone of the . . . search further than the persons of the occupants or the interior of the car.” State v. Patino, 83 N.J. 1, 14-15 (1980). Accordingly, the seized evidence should be suppressed.

In reaching its decision, the New Jersey Supreme Court acknowledged that New Jersey courts have recognized that the smell of marijuana constitutes probable cause that a criminal offense has been committed and additional contraband might be present. However, it also emphasized that a search that is reasonable at its inception may nonetheless violate the Constitution by virtue of its “intolerable intensity and scope.”

After reviewing several cases involving searches under the automobile exception based on the suspected presence of marijuana, the New Jersey Supreme Court determined that cases in which New Jersey courts have upheld searches of areas beyond the passenger compartment have involved facts beyond simply detecting the smell of marijuana from the interior of the car.

The New Jersey Supreme Court went on to find that the initial search of defendant and the passenger compartment was valid. However, because the search of the car’s interior did not reveal marijuana, it concluded that the expansion went beyond the scope of the automobile exception, and any information from the BOLO could not contribute to a probable cause determination based on the smell of marijuana.

“We hold that when Trooper Travis expanded his search to the engine compartment of the car, he went beyond the scope of the automobile exception. Although he smelled marijuana in the passenger compartment of the car, the trooper’s initial search yielded no results and provided no justification ‘to extend the zone of the . . . search further than the persons of the occupants or the interior of the car,’” the court wrote. “Had the smell of raw marijuana emanated from under the hood of the vehicle, that could have justified expanding the search.”

Finally, the New Jersey Supreme Court emphasized that its holding in no way suggests that areas within the interior of the car would require separate probable cause findings in order to conduct a warrantless search. “We are not dividing up the interior of vehicles such that an officer would need to establish different or additional probable cause to search front seat as opposed to the back seat, for example,” the court explained. “Pursuant to the automobile exception, if an officer has probable cause to search the interior of the vehicle, that probable cause encompasses the entirety of the interior.”

The New Jersey Supreme Court similarly noted that it was not suggesting that the warrantless search of a trunk or engine compartment will always require separate probable cause findings. “Instead, we reiterate that a warrantless search of a car ‘must be reasonable in scope’ and ‘strictly tied to and justified by the circumstances which rendered its initiation permissible,’” the court wrote. “However, a generalized smell of raw marijuana does not justify a search of every compartment of an automobile.”

In Facebook v. State, (A-61-21; A-7-22/087054) (June 29, 2023), the Supreme Court of New Jersey held that Facebook can’t be compelled to provide the prospective communications of two users based only on probable cause. Citing the heightened privacy protections involved, the court unanimously held that the state’s wiretap act applies.

Facts of Facebook v. State

The case specifically considered whether Facebook can be compelled to provide the contents of two users’ accounts every 15 minutes for 30 days into the future via a traditional search warrant. As the New Jersey Supreme Court explained in its opinion,  the 15-minute delay is because of technical limitations; it is as fast as Facebook can provide the information.

Even though it seeks extensive information from private user accounts that does not yet exist, in as close to real time as possible, the State argued that, in light of the 15-minute delay, it is obtaining “stored communications,” which do not require a wiretap order. In the two matters under review, trial courts quashed the State’s request for prospective information based on a Communications Data Warrant (CDW), which is the equivalent of a search warrant and can be issued on a showing of probable cause.

The Appellate Division consolidated the cases and held that the State could obtain prospective electronic communications with a CDW, reasoning that the wiretap statute applied to the contemporaneous interception of electronic communications, not efforts to access communications in storage. To ensure compliance “with the federal and state constitutions and [New Jersey’s] warrant procedures,” however, the Appellate Division imposed a 10-day limit on the duration of the CDWs, importing the shorter deadline from Rule 3:5-5(a), which sets a time limit for the execution of search warrants.

NJ Supreme Court’s Decision in Facebook v. State

The Supreme Court of New Jersey reversed. It held that the protections of New Jersey’s wiretap act applied in order to “safeguard individual privacy rights under the relevant statutes and the State Constitution.”

“To conduct a search, the State ordinarily must demonstrate there is probable cause to believe evidence of a crime will be found at a particular place and must obtain a warrant,” Chief Justice Stuart Rabner wrote on behalf of the unanimous court. “Gaining access to private communications in real time, however, is considerably more intrusive than a typical search. In those instances, the State must satisfy certain heightened requirements and apply for a wiretap order, which requires an enhanced showing — one beyond probable cause.”

In reaching its decision, the New Jersey Supreme Court rejected State’s argument that the near real-time acquisition of prospective electronic communications is subject to New Jersey’s equivalent of the Stored Communications Act (SCA), which applies to electronic data in storage. “Nowhere else in the nation has law enforcement sought prospective communications from Facebook users’ accounts without presenting a wiretap order,” Rabner wrote. 

Instead, the court concluded that such requests are subject to the enhanced privacy protections of the wiretap acts. “We also find that the nearly contemporaneous acquisition of electronic communications here is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection,” Rabner wrote. “In those instances, the State must satisfy certain heightened requirements and apply for a wiretap order, which requires an enhanced showing—one beyond probable cause,” Rabner explained. “That approach attempts to balance law enforcement’s legitimate need to investigate crime and the reasonable privacy rights that individuals possess.”