In this issue:
1. Open Public Records Act (OPRA) Bars $55 Fee For Edison Computer Records
2 DNA test Can be Compelled on Juveniles Already Delinquent
3. Evidence Rule 104 Hearing Required on admissibility of Confessions
4 Off Duty Conduct Can Require Forfeiture of Office.
5 Intent to Obtain Prescription Drug Can be Forgery
6 Public Defender is Employee Protected by CEPA
7 Requiring felons to provide sample DNA Act Constitutional and Not Penal
8 Each Lie is Not Separate Insurance Fraud
9 Even Public Defenders Require Motion For a Substitute of Counsel
10. New webpage: Quasi criminal rights
11 Upcoming events:
1. Open Public Records Act (OPRA) Bars $55 Fee For Edison Computer Records. Libertarian Party of Central NJ v. Murphy 384 NJ Super. 136 (App Div. 2006).
The $55 fee charged to plaintiffs for a computer diskette containing the minutes of the township council meetings violates the OPRA. Source: 184 NJLJ 46.
2 DNA test Can be Compelled on Juveniles Already Delinquent. AA v. Attorney General of New Jersey 384 NJ Super. 67 (App Div. 2006)
The "special law enforcement concerns" advanced by the DNA Database and Data bank Act of 1994, N.J.S.A. 53:1-20.17, et seq., support the application of the "special needs" exception to the requirement of a warrant for a search. The database and data bank authorized by the Act advance the State's compelling interest in deterring and detecting recidivism, at least when applied to adults and to delinquent juveniles who are older than 14. There is no constitutional basis for a judicially created expungement remedy for relief from the Act.
Source: 15 NJLJ 708.
3. Evidence Rule 104 Hearing Required on admissibility of Confessions. State v. Elkwisni 384 NJ Super. 351 (App Div. 2006)
The record developed at the N.J.R.E. 104 hearing was insufficient to determine beyond a reasonable doubt that defendant voluntarily and knowingly waived his Miranda rights; since defendant testified at trial as to his statements to police, to bolster his defense of duress, the State's cross-examination as to the statements was proper. Source: 184 NJLJ 223.
4 Off Duty Conduct Can Require Forfeiture of Office. State v. Rodriguez 383 N.J. Super. 663 (App Div. 2006).
The off-duty conduct of defendant- police officer that led to his conviction for leaving the scene of a fatal accident sufficiently "involved and touched upon" his employment to justify the order barring him from future public employment under N.J.S.A. 2C:51-2d.
Source: 183 NJL 1172.
5 Intent to Obtain Prescription Drug Can be Forgery. State v. Felsen 383 N.J. Super. 154 (App. Div. 2006).
We hold that evidence of a defendant's intent to defraud the state's regulatory program concerning the dispensing of prescription drugs by attempting to pass a forged prescription to a regulated pharmacy satisfies the statutory requirement that defendant commit the act "with purpose to defraud or injure another" under the forgery statute, N.J.S.A. 2C:21-1a. Source: NJ Law Journal February 20, 2006 p. 51.
6 Public Defender is Employee Protected by CEPA (Conscientious Employee Protection Act). Stomel v. The City of Camden 383 NJ Super. 615 (App Div. 2006)
Because the mayor did not possess the authority to terminate plaintiff's employment as a municipal public defender, and plaintiff has not shown any unconstitutional policy or custom engaged in by the city's governing body, he has failed to make a prima facie showing of § 1983 liability against the city; however, plaintiff is considered an employee for purposes of his whistle blowing claim.
Source: 183 NJLJ 1084.
7 Requiring felons to provide sample DNA Act Constitutional and Not Penal. State in Interest of L.R. 382 NJ Super. 605 (App Div. 2006).
The DNA Database and Data bank Act is not a penal statute and thus does not implicate constitutional ex post facto proscriptions; the absence of counsel at the juvenile's referee hearing was harmless since he was represented by counsel at the Superior Court proceeding that resulted in the order for a DNA sample, albeit based on the earlier offense. Source: 183 NJLJ 409.
8 Each Lie is Not Separate Insurance Fraud. State v. Fleischman 383 NJ Super. 396 (App Div. 2006).
Each lie told in support of one fraudulent claim in a single document cannot reasonably be seen as a separate act of insurance fraud under N.J.S.A. 2C:21-4.6b. Source: 183 NJLJ 862.
9 Even Public Defenders Require Motion For a Substitute of Counsel. State v. Noel ___ NJ Super. ___14-3-3626 ( Law Div. decided July 15, 2005, approved in April 11, 2006).
When the Office of the Public Defender seeks to reassign a case to a private pool attorney because of a conflict of interest, it must comply with Rule 1:11-2 or seek court approval.
Source: 184 NJLJ 372.
Editorial Assistance provided by Associate Editor James Durgana, a first year law student at Villanova University School of Law with an interest in criminal litigation. This summer he has gained valuable insight into the legal spectrum by engaging in various interactions at court proceedings, as well as honing his writing skills through document drafting while clerking at Ken Vercammen's Law Office in Edison, NJ.
10. New webpage:
Quasi criminal rights of persons charged with Motor vehicle offenses including DWI and Driving While Suspended
11 Upcoming events:
Oct. 7 Metuchen Fair-
Oct. 7 Rat Race charity run
Oct. 7 Mike Sydor Party
Oct. 16 Edison Wills
Monday, Sept 25 - Improving Driving Culture and Pedestrian Safety in NJ
Speakers: Kris Kolluri, Commissioner, Department of Transportation
Janine Bauer, Consultant to Rutgers
Time: 4:00-6:00 p.m.
Location: NJ Law Center One Constitution Square New Brunswick, NJ
There is no fee for members to attend this meeting. For more information or to register, contact the Meetings Department at 732-249-5000, or www.njsba.com.