State v. Morabito; No. 2005-151

March 10, 2006

Reversed and Remanded

• Whether the trial court erred, by adopting the prosecution’s addition of the mental state of “knowingly” to the charges of criminal threatening, thereby impermissibly lowering the “purposeful” mens rea element of the crime as prescribed in RSA 631:4, I(d).
•  

The trial court erred in adopting the complaints which added the lesser mental state of “knowingly” to the elements as found in RSA 631:4,I(d). In accordance with RSA 626:2, where RSA 631:4,I (d) prescribes a “purpose to terrorize,” and fails to prescribe a mental state for other material elements of the crime, the “purposeful” mental state shall apply to all of the material elements. Therefore, the defendant was unfairly prejudiced when he was found guilty under the incorrect standard, which constituted reversible error.

State v. Duquette; No. 2005-186

March 15, 2006

Affirmed in part, and remanded.

• Whether the defendant’s motion to amend or suspend his remaining minimum and maximum sentences was timely under RSA 651:20, and was therefore entitled to a hearing on the matter.
•  

A trial court has broad discretion in deciding whether or not to grant a motion to suspend a sentence. Therefore, a trial court’s sentencing decision will be overturned only if an unsustainable exercise of discretion is found. In the instant case, the defendant’s petition to suspend was timely, but he was entitled only to petition to suspend the remainder of his initial ten to twenty year sentence, and not the remaining sentences, for which he had yet to serve any time. There was no unsustainable exercise of discretion in the trial court’s decision to deny the defendant’s petition to suspend sentence without granting a hearing. However, in its order denying the defendant’s petition, the trial court did not specify its reasons for doing so. Since the defendant’s petition was timely as to the suspension of the defendant’s initial ten to twenty year sentence, the case was remanded for the limited purpose of specifically addressing the defendant’s petition to suspend his first sentence.

State v. Horner; No. 2004-831

March 15, 2006

Affirmed.

• Whether the trial court conditionally suspended one of his sentences and retained jurisdiction and therefore was required to hear his subsequent motion to suspend his sentence after the defendant had served four years.
• Whether the trial court should have considered his consecutive sentences in the aggregate in applying the time limits in RSA 651:20, I(a).
• Whether the trial court violated the doctrine against judicial ex post facto decisions by reinterpreting RSA 651:20 to deny him a hearing, and thus violated due process.
• Whether the State is estopped from challenging the legality of his sentence because it did not object at the time of sentencing
• Whether the defendant is entitled to have the original sentence enforced, even it was illegal, by virtue of his detrimental reliance on the trial court’s comments at sentencing.

RSA 651:20, I(a) permits an inmate serving multiple, consecutive sentences to bring a petition to suspend an individual sentence after serving at least four years or two-thirds of the minimum term of that sentence, whichever is greater. The trial court cannot waive this requirement. However, the trial court’s erroneous reinterpretation of the statute was not unconstitutional and did not violate the doctrine against judicial ex post facto decisions, and because the defendant cites no authority for the estoppel argument, and it need not be addressed on appeal. Though the legislature has vested in the trial court the power to adapt sentencing, it may also circumscribe the court’s power to suspend, provided that the sentencing process as a whole complies with the requirements of due process. In the instant case, trial court was not only permitted to amend its erroneous sentencing order, it was required to do so.

Petition of the State of New Hampshire (State v. Theodosopoulos); No. 2005-278

March 15, 2006

Petition For Writ Of Certiorari Denied.

• Whether the trial court exceeded its statutory authority by ordering the Hooksett Police Department to turn over the confidential personnel file of one its officers to the prosecutor, after a hearing on the defendant’s motion to compel discovery on a criminal case arising from a motor vehicle accident involving the officer and the defendant.
•  

The Court concluded that the defendant is entitled to any exculpatory information contained in the officer’s personnel file, under Part I, Article 15 of the State Constitution. Furthermore, the trial court properly limited the defendant’s access to the file by granting the prosecutor access to for the purpose of determining what, if any, exculpatory information is contained in the file that should be provided to the defendant.. Because the defendant is not requesting generalized information that may be contained in the file, the threshold finding of probable cause and subsequent in camera review, as set forth in RSA 105:13-b, are not required. Accordingly, the trial court did not exceed its authority by granting the defendant’s motion to compel.

State v. Kim; No. 2004-725

March 28, 2006

Affirmed

• Whether the trial court erred in admitting evidence of the defendant’s financial difficulties, gambling debts and extramarital relationship with a woman to whom he was in debt, which the State offered to establish motive in a robbery-homicide.
•  

The court concluded that there was a sufficient logical connection between the defendant’s state of mind on the night of the homicides and his financial decline, due to his gambling losses over the years and his lengthy extramarital affair, and that .the trial court’s ruling was not clearly untenable or unreasonable to the prejudice of the defendant’s case. Therefore, the evidence was properly admitted under Rule404 (b).

Unemployment Compensation

Appeal of Kaplan; No. 2005-120

(New Hampshire Department of Employment Security)

March 10, 2006

• Whether the appellant, the former salaried chief executive officer and minority stockholder of a closed corporation, was improperly denied unemployment benefits for the reason that he had been “self employed.”
• Whether the application of the statute and rule on which the Department relied in denying him benefits violated the Equal Protection Clause of both the Federal and State Constitutions.
• Whether the appellant is entitled, as a matter of constitutional law, to the return of all unemployment contributions made by the corporation on his behalf.
•  

New Hampshire’s unemployment compensation scheme denies benefits to those whose entrepreneurial businesses fail because of circumstances beyond their control. The court found ample evidence on the record to support the appeal tribunal’s finding that the appellant was ineligible for unemployment benefits, because he met at least three of the criteria in Rule 503.03(a), and therefore was properly deemed to have left self employment and closed his business. The court denied the Equal Protection claims because they were not properly preserved for appeal. And, since RSA 282-A:149, requires employers who seek adjustment or refund of unemployment contributions to file an application with the commissioner, and there is in indication on the record that any such application was ever filed, the refund claim is not properly before the court.

Peter R. Brunette is a solo practitioner in Laconia, NH.  He is a graduate of Franklin Pierce Law School and has been a member of the NH Bar since 1989.

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