Articles Posted in Constitutional Law

by
Petitioner Lisa Censabella appealed a superior court’s dismissal of her petition for relief against Hillsborough County Attorney Dennis Hogan under the Right-to-Know Law. Petitioner argued the trial court erred in ruling that she was not a “person aggrieved” under RSA 91-A:7 (2013) and, therefore, lacked standing to pursue this action. In March 2017, petitioner, by and through her attorney, filed a petition seeking, among other things, to enjoin respondent from further violations of the Right-to-Know Law. Petitioner claimed to be a person aggrieved, under RSA 91-A:7, by respondent’s alleged violations of RSA chapter 91-A occurring between December 28, 2015 and November 29, 2016. The petition alleged Attorney Tony Soltani filed a Right-to-Know Law request on her behalf with respondent seeking information regarding another individual, but that the response to the request and to follow-up requests made by Soltani over the ensuing eleven months was late and incomplete. At no time during the exchange did Soltani reveal that petitioner was his client for the purpose of the request, nor did respondent inquire for whom the requests were being made. The first time petitioner’s name was revealed was in the petition filed in the superior court. Respondent moved to dismiss, asserting that, because petitioner was not identified directly or indirectly in any of the requests made by Soltani, she lacked standing to bring the petition. The trial court granted the motion. Respondent argued the petitioner was not a “person aggrieved” because she “never directly requested inspection of government records, nor was she ever identified as a citizen upon whose behalf a request was made.” The New Hampshire Supreme Court discerned no such requirements in the Right-to-Know Law, and reversed the superior court’s judgment. View "Censabella v. Hillsborough County Attorney" on Justia Law

Posted in: Constitutional Law

by
The State appealed a superior court order granting defendant Foad Afshar a new trial following his convictions on one count of simple assault, two counts of unlawful mental health practice, and one count of aggravated felonious sexual assault. On appeal, the State argued the trial court unsustainably exercised its discretion when, during a post-verdict hearing on the defendant’s motion for a new trial, it failed to apply the proper legal analysis in evaluating the potential biases of two jurors. Finding no such error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Afshar" on Justia Law

by
In 1985, petitioner Edward White was convicted in Massachusetts on two counts of indecent assault and battery arising from allegations that he sexually assaulted an eight-year-old female. He served three years in prison and then was paroled. At the evidentiary hearing, he represented that, during his parole, he successfully completed a sex offender treatment program. In January 1994, as a New Hampshire resident, the petitioner became subject to lifetime registration as a sex offender for his Massachusetts convictions. Following an evidentiary hearing on the merits, petitioner appealed a superior court order denying his petition to be relieved of the obligation to register as a sex offender in New Hampshire. Finding that the superior court properly applied the pertinent New Hampshire statute mandating petitioner's registration, the New Hampshire Supreme Court affirmed the order. View "White v. New Hampshire" on Justia Law

by
Following an evidentiary hearing on the merits, petitioner Edward White appealed a trial court order denying his petition to be relieved of the obligation to register as a sex offender in New Hampshire. In January 1994, as a New Hampshire resident, petitioner became subject to lifetime registration as a sex offender for his Massachusetts convictions. Because of constitutional limitations, a Tier III offender, like petitioner, whose convictions pre-dated the establishment of the sex offender registry, may be subject to the registration requirement “only if he is promptly given an opportunity for either a court hearing, or an administrative hearing subject to judicial review, at which he is permitted to demonstrate that he no longer poses a risk sufficient to justify continued registration.” An assessment of petitioner was conducted, with findings that petitioner was then "a minimal risk to reoffend and therefore does not meet criteria for continued listing on the Sex Offender Registry." Following the evidentiary hearing, the trial court concluded that the petitioner failed to meet his burden of proof he was no longer a danger to the public and no longer posed a risk sufficient to justify continued registration. The New Hampshire Supreme Court determined the record submitted on appeal established an objective basis sufficient to sustain the trial court's denial of petitioner's petition, and therefore upheld its decision. View "White v. New Hampshire" on Justia Law

by
Defendant Daniel Allain appealed a superior court order denying his request for pretrial confinement credit toward a suspended sentence imposed for violating a good behavior condition. Defendant was arrested on October 10, 2015 for a burglary that took place August 31, 2015. Unable to post bail, he remained incarcerated until trial. In February 2016, the State obtained eight indictments against him relating to burglaries and thefts that took place during the late summer of 2015, including the August 31 burglary. On July 8, 2016, the State moved to impose defendant’s 2011 suspended sentence because he violated the good behavior condition by committing the August 31 burglary. On August 15, 2016, the State entered a nolle prosequi on the charge involving the August 31, 2015 burglary. On appeal, defendant argued the trial court erred by denying him “presentence confinement credit beginning October 10, 2015.” He contended that had he posted bail on October 10, 2015, he would serve a total of three to six years of the 2011 sentence, but “[b]ecause he is indigent and the court denied credit, he will serve three years, 332 days to six years, 332 days.” Requiring him to serve more time because of his indigency, he argues, “involves precisely the discrimination” the presentence confinement credit statutes seek to prohibit. The New Hampshire Supreme Court concurred with defendant's argument and reversed the trial court's order's denying his request for pretrial confinement credit. The case was remanded for that court to grant pretrial credit toward defendant's sentence. View "New Hampshire v. Allain" on Justia Law

by
Defendant Shawn Plantamuro appealed his convictions by jury on two counts of aggravated felonious sexual assault, one count of felonious sexual assault, and one count of felony indecent exposure and lewdness. In May 2016, defendant was convicted of sexually abusing the victim, who was born in 2007. At the time of the abuse, which occurred between 2012 and 2014, the victim and her mother lived in the same neighborhood as defendant. The victim would often go to defendant’s house to visit him and his mother. The victim testified that the assaults took place in defendant’s bedroom, which was, essentially, a porch converted into a bedroom. The victim testified that defendant showed her videos in which “[r]eal people” were “naked and . . . having sex”; she also testified that defendant told her that he was “going to do this to [her] one day.” According to the victim, defendant subsequently engaged in sexual activity with her and masturbated in front of her. She testified that this activity occurred on four occasions. On appeal, he argued that the Superior Court erred by: (1) excluding “evidence about the circumstances of” the victim’s disclosure of the assaults to her mother; and (2) prohibiting the defendant’s ex-wife from testifying that he “is sexually attracted to women, not to children.” Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Plantamuro" on Justia Law

by
Defendant David Martinko appealed a superior court order denying his motion to vacate guilty pleas he entered in 2014 to three felony informations. The informations charged him with aggravated felonious sexual assault under the pattern sexual assault statute. He argued on appeal to the New Hampshire Supreme Court: (1) the informations violated his state and federal constitutional protections against double jeopardy; and (2) his trial counsel provided ineffective assistance because he did not advise the defendant of these violations. After review, the Supreme Court determined that under the federal Constitution, the State was permitted to seek separate convictions on the charged informations. Further, the Court determined trial counsel was not ineffective for failing to advise defendant his pleas were in violation of the State and Federal Double Jeopardy Clauses. View "New Hampshire v. Martinko" on Justia Law

by
Sixteen-year-old E.G. was petitioned as a delinquent for having committed the offenses of falsifying physical evidence, and possession of drugs. The petitions also alleged that E.G.’s case had been screened and deemed inappropriate for diversion because E.G. was “being petitioned as a delinquent for a felony level charge, and has several previous police contacts where he was involved in disturbances, criminal mischief and reckless conduct.” E.G. filed a motion to suppress, among other things, “all evidence obtained in violation of [his] right against self-incrimination.” Specifically, he contended that he had been subjected to custodial interrogation by police without having been informed of his rights in accordance with Miranda and New Hampshire v. Benoit, 126 N.H. 6 (1985). The trial court denied the motion. Considering the totality of the circumstances of the encounter, the New Hampshire Supreme Court concluded a reasonable juvenile in E.G.’s position would not have believed himself to be in custody, and therefore, that E.G. was not in custody for Miranda purposes when he made the incriminating statements to the officer. View "In re E.G." on Justia Law

by
Defendant Michael Hanes appealed after a jury convicted him for improper influence. The charges arose over Pembroke New Hampshire's Department of Public Works plowed the town's roads and sidewalks; defendant contacted David Jodoin, town administrator, and complained about the snow removal on his street and the fact that he had been “plowed in.” Defendant left an expletive-laden voicemail for Jodoin. Jodoin testified that defendant’s message “started out pretty calm, reasonable, and then it just went from like zero to 60 and accelerated within like three seconds. It was loud, yelling, screaming, threatening, wanted somebody fired, and then the threats came in.” After listening to the message, Jodoin contacted the police because “[a]ny time anybody . . . threatens another individual, that . . . becomes a police issue,” and because he was concerned about the safety of town employees. Defendant argued on appeal there was insufficient evidence to sustain the verdict, that the speech underlying his conviction enjoyed constitutional protection, and that the trial court committed plain error in failing to sua sponte strike part of a witness’s testimony. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Hanes" on Justia Law

by
The New Hampshire Secretary of State transmitted a certified copy of a resolution of the Governor and Executive Council requesting an opinion of the New Hampshire Supreme Court regarding House Bill 1264, an act to amend the definition of “resident” and “residence” in RSA 21:6 and 21:6-a. The Supreme Court concluded the request was proper for it to issue an advisory opinion. The problem that gave rise to the proposed change in the law of residency set forth in HB 1264 was that the definitions were interpreted to impose requirements that went beyond the traditional definition of “domicile. The result – counterintuitive as it may be – is that, notwithstanding the ‘resident’ and ‘residence’ labels used in their titles, to satisfy the current definitions… requires a degree of connection to a place that is greater than that required to be domiciled in this state for voting purposes pursuant to RSA 654:1, I (2016).” To correct this problem, HB 1264 removed the words “for the indefinite future” from the text of RSA 21:6 and :6-a. If HB 1264 became law, out-of-state students who come to New Hampshire to attend a postsecondary institution or others, who were able to establish a “sufficient attachment to the state” to satisfy the requirements of domicile, would be entitled to vote in New Hampshire. “There is nothing unfair or unconstitutional about state laws that require persons to make this choice.” View "Opinion of the Justices (Definition of Resident and Residence)" on Justia Law