In this issue:
1. You need a Living Wills/ Advance Directive
2 Recent cases: Police Cannot Search Inside Home Based On Smell of Marijuana.
3. Prosecutor Can Dismiss Private Citizen Complaint
4. Law Division Guilty Finding Reversed Where Judge Did Not Articulate Findings of Fact.
5. Additional Reasons to have a Last Will and Testament Prepared
January 14, 2007
1. You need a Living Will/ Advance Directive
Modern medicine and machinery can keep a person alive for long periods of time. Unfortunately, a person is often kept alive in great pain or under circumstances that render him or her unconscious as to everything around them, while causing pain and anguish to the family.
Our state has passed a "Living Will" law, often called a "Death with Dignity" law, which allows a person to direct that heroic measures not be taken to prolong life in these unhappy situations.
This "Living Will" is not a substitute for a regular Will, which affects property rights. The "Living Will" is an independent document to be signed in addition to your regular Will.
Please let us know if you want a Living Will/ Advance Directive prepared.
2 Recent cases: Police Cannot Search Inside Home Based On Smell of Marijuana. State v. Strekis Appellate Division, A-2600-04T1, April 24, 2006, unpublished
Conviction of the disorderly persons offense of possession of less than 50 grams of marijuana vacated, denial of the defendant’s motion to suppress evidence following de novo review reversed, and the matter remanded to the Law Division; the police responded to a possible burglary at the defendant’s residence and secured the premises; an officer smelled “a strong odor of raw marijuana,” searched for its Source, and retrieved a backpack that was hidden behind the wall of the defendant’s bedroom; the defendant later consented to a search of the backpack, which contained marijuana; the Law Division erred by failing to suppress the seized evidence; the police had a lawful right to enter the residence under the emergency aid exception, but the search became unlawful when the officer stopped searching for evidence of the burglary and began searching solely for the Source of the odor; at that point, the search exceeded the limited reasons for the entry of the police into the residence
Source: Facts-on-Call Order No. 19382
3. Prosecutor Can Dismiss Private Citizen Complaint. State v. Pepsny Appellate Division, A-6562-04T3, March 16, 2006, unpublished
Administrative dismissal by the County Prosecutor of the criminal complaint that the appellant signed against the defendant for giving false information to a law enforcement officer affirmed; the complaint was dismissed because there was insufficient evidence to support it; after the dismissal and the filing of his notice of appeal from the dismissal, the appellant pleaded guilty to passing a $450,000 bad check to the defendant; on appeal from the dismissal, the appellant argued that the Assistant Prosecutor who signed the dismissal had a conflict of interest because he had prosecuted the appellant; however, the Assistant Prosecutor had no conflict of interest because his “primary interest” was “to see that justice is done” rather than to obtain convictions, because he could not prosecute a charge that was not supported by probable cause, and because his familiarity with the matter put him “in a good position” to determine whether the appellant’s complaint was meritorious; the Assistant Prosecutor’s decision was “entitled to great deference” and was not subject to judicial review because there was no showing of “arbitrary or corrupt conduct.”
Source: Facts-on-Call Order No. 19382
4. Law Division Guilty Finding Reversed Where Judge Did Not Articulate Findings of Fact. State v. Ochajaroen Appellate Division, A-76-05T2, June 27, 2006, unpublished
Law Division Order that affirmed the defendant's sentence of 30 days in jail for reckless driving reversed and remanded for a trial de novo; the defendant pleaded guilty in the Municipal Court, which imposed the sentence; the defendant appealed as of right from a final judgment of conviction; the Law Division considered his appeal on the papers instead of conducting a trial de novo on the record and deciding the case anew; the Law Division erred by affirming the sentence that was imposed by the Municipal Court instead of entering a judgment of conviction anew; reversal was required because the Law Division did not provide the opportunity for oral argument and did not articulate findings of fact and conclusions of law.
Source: Facts-on-Call Order No. 19861 Editorial Assistance provided by Associate Editor, Natalia Maddela, a 3rd year student at St. John's University School of Law. Ms. Maddela is a mentor for first year students at St. Johns. She plans to graduate in June 2007 and begin a career in corporate law soon after.
5. Additional Reasons to have a Last Will and Testament Prepared
Owners of real property (land) and personal property (money, furniture, bank accounts, cars, personal effects, etc.) have the privilege to select those who will receive these items upon death. If an owner does not have a Will she/he loses that privilege and the law decides. More importantly, as any one who has been through it with family or friends, the time and money for probating much more expensive and time consuming without a Will. Changes in one's marital status, financial status and family often will require some changes to an existing Will.
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