State v. Lee

State v. Lee, 417 N.J. Super. 219 (App. Div. 2010)

The Appellate Division held that where a defendant's sexual contact is with his own intimate parts in view of an adult victim, conviction on a charge of criminal sexual contact requires proof of physical force or coercion beyond defendant's act of touching himself. The defendant had followed the victim into an elevator and then allegedly exposed his penis to her and began to masturbate. The defendant was charged with criminal sexual contact in violation of N.J.S.A. 2C:14-3b, which requires that one of the circumstances in N.J.S.A. 2C:14-2(c)(1)-(4) be met. The relevant section in this matter was N.J.S.A. 2C:14-2(c)(1), which requires the use of physical force or coercion. The court noted that the defendant did not use any physical force because he never touched her, made any threats to her, or made any other form of communication to her. There was no invasion of her bodily integrity so the state was not relieved of the obligation to show physical force or coercion. As an element of fourth degree sexual assault, when the touching is of the actor himself, the phrase "physical force" means a force other than the touching. The court noted that masturbation in view of a non consenting adult can violate the lewdness statute, which is only a disorderly persons offense.

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State v. Rodriguez-Alejo

State v. Rodriguez-Alejo, A-0815-09T3, (N.J. Super. App. Div. March 25, 2011)

The defendant was convicted of violating N.J.S.A. 39:4-50.2 for refusing to submit to a breath test. On appeal, the defendant argued that his limited English proficiency prevented him from understanding the instructions regarding the breath sample. The Appellate Division overturned the conviction, finding that the defendant was not sufficiently warned of the breathalyzer process.

During the conversation he had with the arresting officer, the defendant indicated to the officer that he spoke very little English. The defendant was subsequently arrested for driving while intoxicated after failing a field sobriety test. At the police station, the officer administered a breathalyzer test. He quickly read the standard breathalyzer notification to which the defendant replied that he did not understand. When asked if he would submit to the breathalyzer, the defendant replied “I don’t understand” and then “yeah.” The officer did not read to the defendant the part of the breathalyzer notification that explains the effect of a refusal to undergo the test. The officer attempted to use hand gestures and a couple words in Spanish to explain what the defendant had to do. During his testimony at trial, the defendant testified, through an interpreter, that he conducted all his work and social activities in his native language.

In State v. Marquez, which was decided while the present case was pending appeal, the NJ Supreme court found that reading the statement to a motorist in a language they don’t understand is akin to not reading it at all. The holding in Marquez required the court to undertake a retroactivity analysis. The found that decision in Marquez should be given retroactive application which was just and consonant with public policy under State v. Nash, 64 N.J 464, 469 (1974). Neither the purpose of the rule, reliance on the law preceding decisions, nor administration-of-justice considerations justify limiting the rule announced in Marquez to application solely to cases arising after the decision was announced. The court found that the statement should have been read in its entirety in Spanish to the defendant.

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Lay Opinion Rule Reversed

Today in State v McClean, the NJ Supreme Court reversed a drug conviction which had been partially based upon use of the so called "lay opinion rule" where the police officer testified based upon his training and experience as to what constituted intent to distribute. This type of issue is a hot topic in DWI law as well since State v Bealor alllowed officers to testify upon their training and experience as to marijuana intoxication. The Court here finds that either you are an expert or a lay witness but there is no in between. In the Courts words:

"The Court has established the boundary line that separates factual testimony by police officers from permissible expert opinion testimony. On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. On the other side, the Court has permitted experts with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. In this appeal, the State suggests, and the appellate panel agreed, that there is a category of testimony that lies between those two spheres, governed by the lay opinion rule. The Court does not agree. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case. The testimony of the police detective – because it was elicited by a question that referred to the officer’s training, education and experience – in actuality called for an impermissible expert opinion. "