The decision to dismiss the charges was made after consideration of the recent Appellate Division opinion affirming the prior decision of the Honorable Joseph A. Portelli, J.S.C., suppressing critical evidence necessary to sustain the charges.
The Supreme Court denied the State’s final motion for leave to appeal on December 2, 2019, exhausting the State’s avenues for appeal.
Without the use of the evidence deemed inadmissible by Judge Portelli’s ruling, the State cannot sustain its burden of proof with respect to each element of each offense, thus a dismissal is required.
According to Passaic County officials, on December 11, 2009, the defendant Ms. Keri Barry was admitted at a local hospital with abdominal pain and symptoms consistent with recent childbirth or miscarriage.
Officials say at the hospital, medical personnel discovered the defendant had, in fact, given birth, and alerted the police that there was no indication of the whereabouts of the child.
During the subsequent investigation, police recovered a plastic bag at the defendant’s home, which contained the deceased body of a full-term baby boy.
An autopsy later determined the baby had in fact, been born alive, according to Passaic County officials.
The defendant was eventually charged with Murder and Endangering the Welfare of a Child.
Official say, during preparation for trial, the defendant filed motions to suppress the evidence seized from her home, and all of the evidence derived from its recovery.
Judge Portelli granted the defendant’s motion, precluding the State’s use of that evidence at trial, including the body.
Judge Portelli ruled that search of the defendant’s home did not comply with the requirements for warrantless searches and therefore, the evidence could not be used at trial.
The Passaic County Prosecutor’s Office has aggressively pursued its legal right to appeal the decision of Judge Portelli to suppress the evidence in this case.
"While we respectfully disagree with Judge Portelli’s ruling, and with the Appellate Division’s decision, we, of course, respect the opinions and the process that produced those outcomes" according to a statement released by The Passaic County Prosecutor's Office.
In sum, the Passaic County Prosecutor’s Office has determined that, considering the totality of the circumstances, the dismissal of the charges is required.
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