Two Supreme Court Rulings in Criminal Appeals

Yesterday and today each saw a decision by the Supreme Court in criminal matters. Today’s ruling in State v. Hill, ___ N.J. ___ (2024), authored by Justice Wainer Apter, involved defendant’s convictions for carjacking and witness tampering. The issue for the Court was “whether the State’s witness tampering statute, N.J.S.A. 2C:28-5(a), is unconstitutionally overbroad on its face or was unconstitutionally applied to defendant William Hill.”

As discussed here, the witness tampering charge arose after defendant had been charged with first-degree carjacking a vehicle belonging to a woman whose initials are A.Z. Defendant wrote a letter to A.Z. identifying himself, professing innocence, and urging that “[i]f it’s me that you’re claiming is the actor of this crime without a doubt, then disregard this correspondence. Otherwise please tell the truth if you’re wrong or not sure 100%.”

Convicted of both carjacking and witness tampering, defendant appealed. The Appellate Division affirmed both convictions. The Supreme Court granted defendant’s petition for certification, limited to whether the witness tampering statute was unconstitutionally overbroad under First Amendment overbreadth doctrine. The Court denied the remainder of the petition, so that the carjacking conviction would stand regardless of the outcome in the Supreme Court.

Applying de novo review, Justice Wainer Apter’s opinion held that “N.J.S.A. 2C:28-5(a) is not unconstitutionally overbroad[, but] … the statute may have been unconstitutionally applied to defendant in this case.” The Court therefore vacated the conviction for witness tampering and remanded for a new trial on that charge, but without dismissing any part of the indictment, and without disturbing the carjacking conviction.

Citing prior New Jersey published and unpublished opinions, as well as authorities elsewhere, Justice Wainer Apter observed that this matter was virtually unique in the universe of witness tampering cases. Many witness tampering cases do not even involve speech of any kind, but instead are based on physically harming a witness or bribing him or her not to testify. Those witness tampering cases that do involve speech generally arise out of threats to a witness, which defendant’s letter to A.Z. did not contain. In essence, Justice Wainer Apter said, “defendant asks us to invalidate the witness tampering statute and threaten a wide swath of prior witness tampering convictions as a remedy for what may be one unconstitutional application of the statute: his own case. This we cannot do.” There simply was no basis for an overbreadth attack; “as-applied
challenges can take it from here.”

But the Court went on to find that N.J.S.A. 2C:28-5(a) “may have been unconstitutionally applied to defendant in this case because he was prosecuted for the contents of his letter and the jury was not required to find that his letter constituted speech integral to criminal conduct.” Though the State argued that defendant had not been prosecuted for the content of the letter, its argument at trial was based on the text of the letter, Justice Wainer Apter said.

“Because the letter is facially innocuous, in order to prove that it was speech integral to witness tampering, the State was required to prove that defendant intended the letter to cause A.Z. to testify falsely, withhold any testimony or information, elude legal process, absent herself from a legal proceeding or investigation, or otherwise obstruct, delay, prevent, or impede an official proceeding or investigation. In the trial below, the jury was not so charged.” Justice Wainer Apter outlined two ways that the State might proceed on remand, as guidance for both the parties and the remand court.

Yesterday, the Court decided State v. Gartrell, ___ N.J. ___ (2024). That was a 6-1 decision, with Justice Solomon writing the majority opinion and Justice Noriega penning his first opinion as a Justice, in dissent. The appeal arose out of a warrantless search, made as incident to defendant’s arrest for allegedly assaulting someone in Newark Penn Station. Defendant had a suitcase with him, and when police approached to arrest him, defendant fled the station, leaving the suitcase behind. While some police chased him, another officer opened the suitcase and found weapons, ammunition, drugs, and $2,465.10 in cash. The State also contended that because defendant had abandoned the suitcase, he had no standing to complain about the search.

Charged with weapons and drug possession crimes, and resisting arrest by flight, defendant moved to suppress the fruits of the search. The Law Division granted that motion, but the State obtained leave to appeal and a reversal by the Appellate Division. That court agreed with the State that defendant’s abandonment of the suitcase by fleeing the scene deprived him of standing to attack the search.

The Supreme Court granted defendant’s motion for leave to appeal and affirmed the Appellate Division. After discussing two prior Supreme Court opinions and one by the Appellate Division regarding abandonment, Justice Solomon concluded that “[t]he act of fleeing to avoid a lawful arrest in a public place demonstrates defendant’s intent to place as much distance as possible between himself and the property left behind. When defendant ran from police in the heavily trafficked area on the sidewalk outside of Penn Station, without any indication that he intended to return, he abandoned the suitcase in a public place.” Defendant lacked standing to challenge the search, and the Court did not reach the issue of whether the search was valid as incident to an arrest.

Justice Noriega’s dissent argued that the majority had improperly expanded the prior abandonment caselaw. “It is a step backwards in our jurisprudence to announce a rule that mere flight, without more, ends a defendant’s constitutional right to challenge a search where, as here, the defendant’s actions, words, and behavior all demonstrated his control of and possessory interest in the subject luggage before fleeing.” That referred to the fact that defendant had had several phone conversations with someone named “Spoon” while waiting for the results of a record check that the police ran after approaching defendant. In those conversations, defendant asked Spoon whether he could pick up defendant’s suitcase, which could be seen as asserting an interest in the suitcase that subsisted even after defendant fled. Justice Noriega believed that defendant fled to avoid arrest, not with the intent to abandon the suitcase. But the majority did not agree.