Wednesday, April 8 2020

Appellate Unit

The Appellate Unit has three assistant prosecutors and one clerical staff member. The assistant prosecutors in the unit are responsible for briefing and orally arguing appeals at various levels of New Jersey’s courts and in the federal courts.

The unit’s attorneys argue appeals from all of Burlington County’s municipal courts, which are heard as trials de novo in the Superior Court, Law Division. They also argue appeals from the Law Division to the Superior Court, Appellate Division and the Supreme Court of New Jersey. The unit routinely handles all levels of appeal from non-indictable matters. Appeals from indictable convictions are referred to the unit by way of the Appellate Bureau of the Office of the Attorney General, Division of Criminal Justice. The unit also proactively initiates its own appeals, in those cases where the State is permitted to appeal – most often on leave to appeal from adverse interlocutory rulings.

The Appellate Unit attorneys are also responsible for briefing and arguing civil petitions for writ of habeas corpus in the federal courts – the District Court for New Jersey, the Third Circuit Court of Appeals, and the United States Supreme Court. These matters are all referred to the unit through the Division of Criminal Justice, Appellate Bureau.

The unit’s attorneys are responsible for briefing and arguing motions for post-conviction relief in the Superior Court, Law Division, and a majority of the appeals therefrom.

One of the unit’s attorneys is responsible for coordinating the Pretrial Intervention Program. The assistant prosecutor, in conjunction with the PTI director from the probation department, makes determinations whether to reject or admit individual defendants to the program. The Appellate Unit handles appeals of these determinations – either when a defendant who has been rejected appeals, or when the State appeals the Superior Court judge’s decision to order someone into the program over the State’s objection.

One of the unit’s attorneys is responsible for handling expungements. Pursuant to statute, in limited instances, defendants may be entitled to have their criminal record expunged after an application to a Superior Court judge. This unit reviews such applications and objects to expungement when necessary. Briefs and oral arguments are required when objections to the expungement application are opposed by the Prosecutor.

SIGNIFICANT CASES PROSECUTED IN 2018

STATE v. AMANDA GUSRANG

On December 6, 2013, Pemberton Township police officers on routine patrol came upon the scene of a motor vehicle collision on a rural road. One vehicle had rolled onto the driver’s side in a muddy field next to the roadway. The victim was still and face down in the mud. Officers broke the rear passenger window, entered the vehicle, and with the aid of a bystander, were able to lift the victim’s head out of the mud. While officers were trying to extricate the victim, they learned that a second vehicle involved in the collision was approximately 100 yards down the road.

Police went to the location of the second vehicle and found the defendant, Amanda Gusrang, standing outside her vehicle. The defendant was not seriously injured but had some blood on her shirt. She told officers she was on her way home from her job as a bartender. Police noticed the odor of alcoholic beverage in his patrol vehicle after the defendant was seated in the rear seat.

Due to the muddy conditions, efforts to remove the victim from the mud required several rescue and first responder teams, including an ambulance, paramedics, and two fire departments. Seven of the eight on-duty police officers from Pemberton Township responded to the scene. Two off-duty officers and an officer from a neighboring town also came to the scene, which one officer described as chaotic. The victim died as a result of injuries sustained in the collision.

The defendant was transported to a hospital so a sample of her blood could be drawn. She was asked to provide her consent for the drawing of the sample. An officer read the defendant the consent form as she was being treated for an arm injury. The defendant replied, “Go ahead,” and extended her right arm. The nurse who was treating the defendant and taking a sample of her blood for the hospital took a sample for the police; however, when the officer asked her to sign the consent form, she refused to do so. Police obtained a taped statement from the nurse who took her blood, but the tape was lost. The defendant’s blood-alcohol content was .22 percent approximately one hour after the collision.

The defendant moved to suppress the results of her blood draw, arguing that her consent was not voluntary, that no exigent circumstances justified the warrantless blood draw. The trial court denied the defendant’s motion, concluding that exigent circumstances justified the drawing of the defendant’s blood without a warrant. The trial court noted that the investigation required the attention of many officers, multiple agencies attempted to get the victim out of the mud, and the investigation lasted for over four hours.   The defendant pled guilty to second degree vehicular homicide, and appealed from the denial of her motion to suppress.

On appeal, the Appellate Division affirmed the trial court’s denial of the defendant’s motion. The Appellate Division noted that a legitimate exigency justified the warrantless drawing of a sample of the defendant’s blood, citing the complexity of the situation and limited police resources. The Appellate Division also noted that defendant needed medical treatment and that she contributed to the difficulties the officer faced in obtaining the blood draw. Specifically, the Appellate Division pointed out that the defendant consented to the blood draw, then after being treated, withdrew her consent. The panel thus concluded that under the totality of the circumstances, the dissipation of alcohol in the defendant’s blood created an objective exigency that justified the warrantless search.

STATE V. BRANDON WASHINGTON

In February 2017, Brandon Washington shot two men in the Veterans of Foreign Wars Hall in Willingboro Township. The defendant fled the scene, and a pair of eyeglasses police were able to connect to him was found at the hall in the area where the defendant struggled with one of the victims. The Burlington County Prosecutor’s Office obtained DNA samples from the defendant and the victims, and sent the samples and eyeglasses to the New Jersey State Police Central Regional Laboratory in March 2017. The defendant was arrested, detained pending trial, and indicted for two counts of first degree Attempted Murder.

The defendant’s trial was scheduled to begin on November 28, 2017, and his release date was December 2, 2017. On November 16, 2017, the Prosecutor’s Office received an email from the NJSP Central Regional Laboratory that contained a one-page DNA report. The report indicated that the defendant was the source of the major DNA profile obtained from the eyeglasses. The Prosecutor’s Office provided the DNA report to defense counsel the same day. On November 17, 2017, the State moved for a complex case designation, asked for a 30-day adjournment of trial, and asked that 60 days from November 17, 2017, through January 17, 2018, be deemed excludable time pursuant to N.J.S.A. 2A:162-22(b)(1)(g). The defendant moved to exclude the DNA results. The trial court denied the State’s motions for a complex case designation and for 60 days of excludable time. The court granted the State 11 days of excludable time, extending the defendant’s release date to December 13, 2018. Also, on November 29, 2017, the trial court granted the defendant’s motion to exclude the DNA results and denied the State’s request for an adjournment of trial.

The State moved for reconsideration, providing the trial court with additional material it received from the NJSP Central Regional Laboratory regarding the time it took to analyze and issue a report on the relevant DNA samples. Specifically, the State provided the certification of the analyzing forensic scientist, who certified that although she had completed her lab report on July 25, 2017, technical peer review and approval by the DNA Technical Leader took additional time. She certified that final technical review of the lab report was completed on November 3, 2017, final administrative review of the report was completed on November 8, 2017, and that due to clerical shortages, the report was not provided to the Prosecutor’s Office until November 16, 2017.

The trial court denied the State’s motion for reconsideration and the State moved for permission to file an emergent motion. The Appellate Division stayed trial pending resolution of the State’s motion, and granted the State’s motion for leave to appeal. The trial court ordered the period between December 14, 2017 and February 28, 2018 as excludable time. The defendant appealed the excludable time orders, and the Appellate Division denied his motion for a stay.

On appeal, the Appellate Division reversed the trial court’s order excluding the DNA evidence, holding that the DNA evidence was not within the possession or control of the Prosecutor’s Office until November 16, 2017. Thus, the Appellate Division concluded, the Prosecutor’s Office properly complied with its continuing duty to provide discovery pursuant to R. 3:13-3(f). The Appellate Division also held that the trial court erred in denying the State’s motion for a continuance of trial to permit the parties to obtain experts on the DNA issue. Finally, the Appellate Division held that the time while the State’s emergent application, motion for leave to appeal, and appeal, once leave was granted, is excludable time, concluding that an interlocutory appeal constitutes a motion pursuant to N.J.S.A. 2A:162-22(b)(1)(c).

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