•
Supreme
Court tells Police “Need a Warrant” for Phone Searches. Riley v. California 134
S. Ct. 999 (2014)
The police generally may not, without a warrant, search
digital information on a cell phone seized from an individual who has been
arrested
2. DWI statute
and Alcotest not unconstitutional. State v. Campbell 436 N.J. Super. 264
(App. Div. 2014)
Defendant appeals his conviction of drunk driving
("DWI") and the trial court's denial of declaratory relief on his
claim of unconstitutionality.
Defendant's prosecution was based upon an Alcotest reading
of his blood alcohol content ("BAC") above the per se level of .08
prohibited by N.J.S.A. 39:4-50(a). He argues that case law authorizing the
admission of Alcotest BAC results when the prerequisites for such admissibility
are shown by "clear-and-convincing" proof, coupled with the statute's
conclusively incriminating treatment of a BAC at or above .08, improperly
combine to relieve the State of its constitutional burden of proving a driver's
guilt by the more rigorous standard of proof "beyond a reasonable
doubt."
The Court rejects defendant's claim of unconstitutionality.
The argument fails to distinguish the State's threshold burden of establishing
the Alcotest's evidential admissibility from the State's ultimate burden at
trail of establishing defendant's guilt of a per se offense beyond a reasonable
doubt. Even if a pretrial motion to suppress the BAC results has been denied, a
defendant can still present competing evidence or arguments at trial to
persuade the court that the testing procedures were flawed and that his guilt
has not been proven by the more stringent reasonable doubt standard.
3. Driving While Suspended Conviction Upheld Although DWI
Conviction Vacated. State v. Sylvester __ N.J. Super. __ (App. Div.
2014) A-5192-12T4
N.J.S.A. 2C:40-26b makes it a fourth degree offense to
drive while one's license is suspended or revoked for a second or subsequent
conviction for driving a car while under the influence of alcohol (DWI). In a
bench trial before the Law Division on this charge, defendant argued that her
second DWI conviction had been voided ab initio by the municipal court when it
granted her PCR petition two months after she was indicted for one count of
violating N.J.S.A. 2C:40-26b. Thus, defendant argues the State cannot rely on
this vacated second DWI conviction to meet its burden of proof under N.J.S.A.
2C:40-26b. The trial court rejected this argument. The court affirmed.
It is undisputed that at the time defendant committed this
offense, she was aware her driver's license had been revoked by a presumptively
valid second conviction for DWI. The court relied on State v. Gandhi, 201 N.J.
161, 190 (2010) to hold that a second DWI conviction vacated through PCR
granted by a court after a defendant engages in conduct prohibited in N.J.S.A.
2C:40-26b, cannot be applied retroactively to bar a conviction under this
statute.
4. Court Says Ban on Fake Government Documents Not
Unconstitutional. State v. Borjas 436 N.J. Super. 375 (App. Div. 2014) (A-6292-11T2)
Defendant
was found guilty by a jury of three counts of knowingly making false government
documents, second- degree offenses proscribed by N.J.S.A. 2C:21-2.1(b), and
four counts of knowingly possessing false
government documents, fourth-degree offenses proscribed by N.J.S.A.
2C:21-2.1(d). The incriminating items were created or stored in hard drives on computers at defendant's residence. The items were
discovered by law enforcement officers pursuant to a search warrant, although
the officers found no printouts of the false items.
The court
rejected defendant's argument that subsections (b) and (d) of N.J.S.A. 2C:21-2.1
are unconstitutionally overbroad because they allegedly infringe too much upon
protected forms of expression. In doing so, the court does not foreclose a
future "as-applied" challenge to the statute by an artist, student,
or other person who, unlike the present defendant, makes or stores false images
for benign reasons involving constitutionally protected speech.
Additionally,
the court rejects defendant's argument that the statute is void for vagueness
because it lacks an express element requiring the State to prove a defendant's
specific intent to use the false items for illicit purposes. The court also
rejects defendant's criticisms of the trial judge's jury instruction defining
the term "document" under the statute to encompass items or images
stored on a computer. The instruction is consistent with the broader meaning
associated with the term "document" in common modern usage.
5. Testimony for State by Defendant’s
Investigator Violated Right to Counsel. State v. Nunez 436 NJ Super. 70
(App. Div. 2014)
The court reverses defendant's murder
conviction because the trial judge permitted the State to bolster its case by
calling defendant's investigator to testify to a prior consistent statement of
the State's only eyewitness in violation of defendant's right to counsel.
6. Judge must Recuse from case
if involved as prosecutor. State v. Presley
436 N.J. Super. 440 (App. Div. 2014)
In State
v. McCann, 391 N.J. Super. 542 (App. Div. 2007), the court announced a
prospective "bright-line rule" that called for invalidating search
warrants issued by a judge who was bound to recuse himself or herself based on
a prior relationship. Upon being advised he had prosecuted one of the
defendants when he was an assistant prosecutor, the trial judge recused
himself. So, the question here is not one of recusal but of remedy. Defendants here ask us to apply McCann to the
following facts: the judge prosecuted only one of the defendants; no defendant
alleges the judge was biased or aware of the disqualifying facts when he issued
the warrants or that there was insufficient probable cause for their issuance;
and finally, the defendant prosecuted by the judge withheld the disqualifying
facts while appearing before the judge on unrelated matters for
"strategic" reasons for over a year. The court concludes that McCann
is distinguishable; the remedy sought by defendants will not serve the
interests of the Code of Judicial Conduct; and the appropriate remedy should be
determined by what is "required to restore public confidence in the
integrity and impartiality of the proceedings, to resolve the dispute in
particular, and to promote generally the administration of justice." DeNike
v. Cupo, 196 N.J. 502, 519 (2008).
7. Protective sweep permitted where shots
fired in high crime neighborhood. State v.
Gamble 218 N.J 412 (2014)
Under the totality of the circumstances, which
provided the officers with a reasonable and articulable suspicion that
defendant was engaged in criminal activity, the investigatory stop and
protective sweep of the passenger compartment of the van were valid.
8. No warrant needed for DWI blood for DWI
tickets issued before 2013
State v
Jones __ NJ Super. __ (App. Div. 2014) A-0793-13T1
The Court granted the State leave to appeal
from an order that suppressed the results of a blood sample taken without a
warrant prior to Missouri v. McNeely 133 S. Ct. 1552 (2013), and now
reverses. Defendant caused a multiple vehicle accident, resulting in personal
injuries that required hospitalization. Emergency personnel took approximately
thirty minutes to extricate the unconscious defendant from her vehicle and the
police investigation took several hours.
It is undisputed that the blood sample was obtained
consistent with New Jersey law that existed at the time. The Court need not
decide whether McNeely should be applied retroactively because the facts
support a warrantless blood sample even if McNeely applies. Although McNeely
rejected a per se exigency rule, it adhered to the totality of the
circumstances analysis set forth in Schmerber
v. California, 86 S. Ct. 1826,
1836 (1966), stating the metabolization of alcohol was an "essential"
factor in the analysis. Further, the Court noted that the facts in Schmerber
which, like here, included an accident, injuries requiring hospitalization, and
an hours-long police investigation, were sufficient to justify a warrantless
blood sample for use in an expert’s comparison of DNA samples, a defendant’s
federal and state confrontation rights are satisfied so long as the testifying
witness is qualified to perform, and did in fact perform, an independent review
of testing data and processes, rather than merely read from or vouch for
another analyst’s report or conclusions.
9. Supervising chemist can testify in
vehicular homicide if they independently verified correctness of blood test
results State v. Michaels __ NJ__ (2014) (A-69-12)
Defendant’s confrontation rights were not
violated by the admission of Dr. Barbieri’s report or his testimony regarding
the blood tests and his conclusions drawn therefrom. Dr. Barbieri was
knowledgeable about the testing process, independently verified the correctness
of the machine-tested processes and results, and formed an independent
conclusion about the results. Defendant’s opportunity to cross-examine Dr.
Barbieri satisfied her right to confrontation on the forensic evidence
presented against her.
10 Supervising chemist can testify in rape
case if they independently verified correctness of DNA results State v.
Roach __ NJ __ (2014) (A-129-11)
Defendant’s confrontation rights were not
violated by the testimony of the analyst who matched his DNA profile to the
profile left at the scene by the perpetrator. Defendant had the opportunity to
confront the analyst who personally reviewed and verified the correctness of
the two DNA profiles that resulted in a highly significant statistical match
inculpating him as the perpetrator. In the context of testing for the purpose
of establishing DNA profiles.
11. Defendant has burden to timely to object
to testimony by pathologist
who did not perform the victim’s autopsy State v. Williams __ NJ__ (2014) (A-5-12)
Defendant’s failure to object to the admission
of the testimony on confrontation grounds and his decision to cross-examine the
medical examiner constitute a waiver of his right of confrontation.
12
13 For unlicensed driver, can’t get both fine and jail.
State v. Carreon
__ NJ Super. __ (App. Div. 2014) A-5501-12T1
This appeal required the court to consider whether a
never-licensed driver may be fined and sentenced to a custodial term under the
penalty provisions of N.J.S.A. 39:3-10. Because the court agreed that the
statute allows a fine or imprisonment but not both, even for drivers, who, like
defendant, have never been licensed, the court-reversed defendant's sentence
and remand to the Law Division for resentencing.
Old
Index:
•
Supreme
Court tells Police “Need a Warrant” for Phone Searches. Riley v. California
•
DWI
statute and Alcotest not unconstitutional. State
v. Campbell
•
Driving
While Suspended Conviction Upheld Although DWI Conviction Vacated. State v. Sylvester
•
Court
Says Ban on Fake Government Documents Not Unconstitutional. State v. Borjas
•
Testimony for State by Defendant’s Investigator Violated Right
to Counsel. State v. Nunez
•
Abuse and Neglect Upheld Where Father Let Children Ride with
Drunk Mother. New Jersey Division of Child
Protection and Permanency v. J.A
•
School
Bus Driver Who Left Young Child on Bus Committed Act of Neglect. New Jersey Department of
Children and Families v. R.R.
•
Criminal
Charge where later civil violation can be expunged. In the Matter of the Expungement Application of P.H.
•
Judge must Recuse from case if involved as prosecutor. State v. Presley
•
Protective
sweep permitted where shots fired in high crime neighborhood. State v. Gamble
•
No warrant for DWI blood for DWI tickets issued before 2013. State v, Jones
•
Expungement
of Single Judgment Encompassing Multiple Crimes Denied. I/M/O The Expungement of the Criminal Records of G.P.B.,
13. Supervising chemist can testify
in vehicular homicide if they independently verified correctness of blood test
results State v. Michaels
14. Supervising chemist can testify
in rape case if they independently verified correctness of DNA results State v.
Roach
15. Warrantless DWI blood taking
allowed where multiple vehicle accident and hospitalization State v Jones
16. Defendant has burden
to timely to object to testimony by pathologist who did not perform the victim’s autopsy State v. Williams
17 For unlicensed driver, can’t get both fine and
jail. State v. Carreon
Removed from Fall and will use in Winter, 2015
6. Abuse and Neglect Upheld Where Father Let
Children Ride with Drunk Mother. New Jersey
Division of Child Protection and Permanency
v. J.A. 436 N.J. Super. 61 (App. Div.
2014)
In this appeal, the court concluded that a
parent fails to exercise the minimum degree of care required by N.J.S.A.
9:6-8.21(c)(4) when permitting children to be passengers in a vehicle driven by
a person who appears to be inebriated.
7. School Bus Driver Who Left Young Child on Bus Committed
Act of Neglect. New
Jersey Department of Children and Families v. R.R. 436 NJ Super. 53 (App.
Div. 2014)
Appellant
was a school bus driver. At the end of her route she did not visually inspect
the bus to make sure there were no children left on board, as required by
N.J.S.A. 18A:39-28. Instead, she had relied upon a school bus aide's
representation there were not any children on the bus, even though in the past
the driver had found the aide to be unreliable. In fact, a five-year old was
left on board after the bus driver left for the day. The child was not
discovered for fifty-five minutes.
The court affirmed the finding of the Assistant
Commissioner of the Office of Performance Management and Accountability of the
Department of Children and Families that the bus driver had engaged in willful
and wanton conduct in violation of N.J.S.A. 9:6-8.21(c)(4)(b), for relying upon
an undependable aide's representation and not personally inspecting the bus
herself to determine if any children remained on board.
8. Criminal Charge where later civil violation can be
expunged. In the Matter of the Expungement
Application of P.H. 436 N.J. Super. 427 (App. Div. 2014)
The court
considered the application of the
expungement statute, N.J.S.A. 2C:52-1 to -32, where petitioner was charged with
a fourth degree offense but ultimately agreed to a violation of a statute for
which he paid a civil penalty. Petitioner requested expungement of all criminal
records, which was granted by the trial judge; records of the civil violation
and the file of the NJSPCA were not subject to expungement.
The State
appealed, advancing numerous reasons for reversal, primarily arguing the final
disposition controls whether expungement relief is available. Maintaining the
initial criminal charges were part of the same file that was disposed of
through a plea agreement-allowing defendant to pay a civil penalty, the State
asserts expungement cannot be permitted. The court disagreed and concluded
petitioner was not convicted and the final disposition was not a plea
agreement. Rather, the criminal charges were dismissed. Accordingly,
expungement was permitted under N.J.S.A. 2C:52-6(a).
•
Expungement
of Single Judgment Encompassing Multiple Crimes Denied. I/M/O The Expungement of the Criminal Records of G.P.B., 436 NJ
Super. 48 (App. Div. 2014)
The court held that expungement is not permitted by
N.J.S.A. 2C:52-2(a), which allows expungement for a person convicted of "a
crime," where the petitioner had pleaded guilty to multiple briberies over
the course of two days even though those crimes had a single purpose and even
though they were memorialized in a single judgment of a conviction.
Editorial Assistance by Jillian Spielman, 3rd
year law student, New York Law School.
Photos: Happy Hour July 18 NJSBA President Paris Eliades was among the hundreds of
persons at the Summer Happy Hour at Bar Anticipation. The St. Patrick Happy
Hour is March 13, 2015.
Seminar: Handling Drug DWI and Serious Motor Vehicle Cases
in Municipal Court
Monday, October 27, 2014 5:30PM-9:00PM
NJ Law Center, New Brunswick
Speakers: Kenneth
A. Vercammen, Esq., Past Municipal
court Attorney of the Year
William G. Brigiani,
Esq., Past President Middlesex County Bar
Hon. William D.
Feingold, Esq., North Brunswick
John Menzel, Esq.,
Past Chair Municipal Court Section
Norma M. Murgado,
Esq., Chief Prosecutor- Elizabeth
Assistant
Prosecutor-Woodbridge
Joshua H. Reinitz,
Esq., Vice Chair Municipal Court Section
For registration, contact NJ Institute for Continuing Legal
Education 732-214-8500
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Ave.
Edison, NJ, 08817
732-572-0500
