The Appellate Section of the OPD had major wins in both the New Jersey Supreme Court and Appellate Division of Superior Court in the first third of this year.

• The Supreme Court ruled that carjacking cannot support an aggravated sexual assault conviction because it is not one of the offenses enumerated in the statute that raise sexual assault from second to first degree when they are committed during an assault.  State v. Jeffrey Drury (April 24, 2007).
  

• Aggravated assault and weapons convictions were reversed by the Appellate Division because the trial court refused to sever the contempt charge and allowed the final restraining order to be admitted into evidence.  These errors were fatal to the assault and weapons convictions because defendant's state of mind was at issue as it related to the attack on the victim.  State v. Malvern L. Lewis (January 11, 2007).
  
  
• The Supreme Court, in a pending capital case, largely approved of the trial court's ruling setting limitations on State's use of so-called "signature" evidence of a sexual assault of a Maine State Trooper. First, the comparative analysis necessary to determine whether the murder and the prior sexual assault are “signature” crimes is outside of the ordinary experience and knowledge of jurors and requires the assistance of expert testimony. Second, the Court found that the judge properly exercised her discretion by requiring the State to provide defendant with a database of cases supporting the expert testimony. Finally, ViCAP, an FBI database of selected violent crimes, is not admissible, either independently or as a database in support of expert testimony, to prove a signature crime.  State v. Steven R. Fortin (March 28, 2007).
  
  
• The Appellate Division reversed defendant's conviction because the alibi notice rule constitutes an unconstitutional infringement on a defendant's right to present a defense if it bars defendant from testifying about his whereabouts  at the time of the crime.  The central and unique position occupied by the defendant in a criminal trial is such that his testimony on the critical issue of his whereabouts at the time of the crime cannot be forfeited without undermining his constitutional right to testify in his own defense.  Plain error was also committed when the prosecutor argued in summation that the victim, a deaf mute, should be believed because of "the heightened sensory perception" of people with handicaps, such as deafness. State v. Darren L. Bradshaw (April 2, 2007)
  

• The Appellate Division ruled that both the statutory law and the case law of this State suggest that a defendant has a right to effective assistance of counsel when a complaint is filed against him or her charging abuse and neglect and threatening the individual's parental rights.  DYFS v. B.H./In the Matter of O.F., A.F., and E.F. (March 22, 2007).

• The Appellate Division reversed defendant's murder conviction and remanded for entry of plea to aggravated manslaughter under the plea agreement that the State had previously refused to honor.  Defendant reasonably believed that he would be able to plead guilty to reduced charges in New Jersey, because he would be sentenced for murder in New York.  As defendant fulfilled his obligation under the offer by pleading guilty in New York and did not withdraw the New York plea as he had the right to do if the plea offer was not honored in New Jersey, his "reasonable expectations" must be fulfilled by enforcement of the New Jersey plea agreement.  State v. Benigno Rosario (February 27, 2007).

• The Supreme Court reversed defendant's conviction for armed robbery because of the trial court’s failure to charge the lesser-included offense of attempted robbery and improper instructions on the elements of conspiracy and accomplice liability.  State v. Brian Samuels (January 31, 2007).
  
  
• The Appellate Division reversed defendant's conviction for reckless manslaughter because the trial court committed reversible plain error by repeatedly telling the jury that defendant's self-defense claim applied only to purposeful homicide offenses and not to reckless offenses.  Weapons possession convictions were also reversed because the trial court erroneously failed to charge that defendant should be acquitted of those charges if he acted in self-protection.  State v. Wilberto Rodriguez (March 29, 2007).  

• The Appellate Division reversed the denial of PTI remanded defendant's case for reconsideration by the prosecutor without reference to Guideline 3(i)(2), participation in "continuing criminal enterprise."  Defendant's receipt of unemployment benefits and false certifications of unemployment over a four-month period did not fit the definition of "continuing criminal enterprise."  A series of unlawful acts intended to profit the criminal do not translate into a "business" or 'enterprise' simply because they took place over a number of months.  This case will be reviewed by the Supreme Court.  State v. Charles A. Watkins (February 5, 2007)

• The Supreme Court reversed several orders denying defendants’ discovery on claims of racial profiling reversed.  A defendant is entitled to discovery to support racial profiling claims.  The State's claim that the taint from a profiling stop can be attenuated by defendant's actions after the stop should be considered only after it is determined that defendant is a victim of racial profiling.  State v. Calvin Lee, (April 19, 2007).