NJSBA Municipal Court Practice Section FALL NEWSLETTER 2019
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Top Municipal Court and Traffic Cases 2018-2019
By Kenneth Vercammen, Esq. Edison, NJ
1. Supreme Court rules Breath test results produced by Alcotest machines are inadmissible tested by Tpr Dennis [if not calibrated using a NIST-traceable thermometer ]
State v. Cassidy 235 NJ 482 (2018)
The Special Master’s findings are supported by substantial credible evidence in the record, and the Court adopts them. Breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible. This opinion calls into question any test result involving a machine the sergeant who handled, including devices used by local police in Middlesex, Monmouth, Ocean, Somerset, and Union counties between 2008 and 2016.
If someone plead guilty to a DWI in Central NJ prior to 2016 where State Trooper Marc Dennis tested the machine, the driver may be able to file a petition for Post Conviction Relief. 20,667 drivers had DWI test using Alcotest machines improperly calibrated by Tpr. Dennis.
Supreme Court Assigns Four Recall Judges to Sit as Municipal Court Judges to Resolve Cassidy Matters July 25, 2019
Judge Robert A. Fall (lead judge) Judge Linda G. Baxter, Judge Stephan C. Hansbury, Judge Robert B. Reed
2. Plain feel of bulge of rock cocaine permitted search
State v Evans __ NJ ____ (2018)
The panel erred in its application of the “plain feel” doctrine. Officer Laboy had witnessed “hundreds” of instances where defendants concealed contraband in the front of their pants and therefore immediately recognized the “rocklike” substance he felt to be similar to crack cocaine. Between the officer’s experience-derived identification of the substance and the presence of $2000 in cash, the “plain feel” exception -- which the Court adopts -- applied. (A-85/86-16;
3. Police could not stop for only one broken taillight
State v. Sutherland231 NJ 429 (2018)
The Appellate Division erred in concluding that the holding in State v Heienis applicable here. The motor vehicle statutes pertinent here are not ambiguous. The officer’s stop of defendant’s motor vehicle was not an objectively reasonable mistake of law that gave rise to constitutional reasonable suspicion; the stop was therefore unconstitutional.
Defendant’s traffic stop was premised on perceived violations of two statutes. The statutes read together require that a motor vehicle only have two working rear lamps, with at least one working lamp on each side. See N.J.S.A. 39:3-61(a); N.J.S.A. 39:3-66. N.J.S.A. 39:3-66 mandates that the lamps “required by this article” must be kept in good working order. The statutes require one working taillight on each side of a vehicle. Thus, if a vehicle has two taillights on each side of the vehicle—more than the law requires—and one of those multiple taillights on one side is not working, a violation of N.J.S.A. 39:3-61(a) and -66, as was assumed and charged here, has not occurred.
The officer’s erroneous application of the functioning taillight requirement was not an objectively reasonable mistake of law. This case does not present a basis for considering the application of Heien. Simply put, this was not a good stop. The judgment of the Appellate Division, premised on an application of Heien to the stop in this matter, is reversed.
The State also asserted community caretaking as an alternative basis to support the stop. The Appellate Division did not reach the argument in light of the manner in which it resolved the case. Accordingly, a remand is appropriate to allow the Appellate Division to address the unresolved argument advanced by the State.
4. Warrantless blood draw permitted in fatal accident based on exigency. State v. Zalcberg232 N.J. 335 (2018).
The totality of the circumstances in this case evince an objective exigency, relaxing the need for a warrant and rendering the officer’s warrantless blood draw constitutional. The court held that the facts of this case, in totality, indicate an objective exigency: a fatal accident with multiple serious injuries, the absence of an established telephonic warrant system, and the myriad duties with which the police officers present were tasked. The court also affords “substantial weight” to the “potential dissipation of” the alcohol in defendant's blood. Adkins, 221 N.J. at 303, 113 A.3d 734. Therefore, the court held that the warrantless blood draw did not violate defendant's constitutional rights in this case.
5. Evidence suppressed where no valid inventory search. State v. Hummel232 N.J. 196 (2018).
The Court finds no valid inventory search and therefore affirms the Appellate Division’s determination that the evidence seized during the search should be suppressed.
Under the first Mangoldinquiry, the detectives’ impoundment of defendant’s purse was not justified. The detectives had not arrested defendant before seeking to impound her purse. Defendant kept her purse open and within her reach for the entire interrogation. She rummaged through her bag several times in front of the detectives. The detectives did not frisk defendant at any point during her detention. They sought to remove her bag from the interrogation room only after she asked for an attorney. Crucially, they asked defendant if she would rather examine the contents of her purse herself. It is clear that had valid safety concerns existed at the time they sought to impound her bag, the officers would not have given defendant the option to search her own purse.
6. Driver’s failure to provide registration here permitted limited search. State v. Terry232 N.J. 218 (2018).
Sufficient credible evidence supported the trial court’s determination that defendant was given an adequate opportunity to present the vehicle’s registration before the search commenced. When a driver is unwilling or unable to present proof of a vehicle’s ownership, a police officer may conduct a limited search for the registration papers in the areas where they are likely kept in the vehicle. When a police officer can readily determine that the driver or passenger is the lawful possessor of the vehicle—despite an inability to produce the registration—a warrantless search for proof of ownership will not be justified.
7 Consent to search voluntarily given here. State v. Hagans233 N.J. 30 (2018).
Because the trial court’s determination that the driver ultimately knowingly and voluntarily gave consent to search is supported by sufficient credible evidence, the trial court properly denied defendant’s motion to suppress the evidence seized during the search.
8 Attorney General Memo Guidance Regarding Municipal Prosecutors’ Discretion in Prosecuting Marijuana and Other Criminal Offenses
Attorney General Gurbir S. Grewal in August 2018 released new guidance addressing the scope and appropriate use of prosecutorial discretion in municipal court prosecutions of marijuana-related offenses. The guidance reaffirms that municipal prosecutors are not permitted to adopt their own policies to decriminalize marijuana. Instead, prosecutors handling marijuana cases may appropriately exercise prosecutorial discretion on a case-by-case basis, as they would when prosecuting any other type of criminal offense.
According to the guidance, “a municipal prosecutor may not adopt a categorical policy or practice of refusing to seek convictions for statutory offenses related to marijuana.” This prohibits policies like the one adopted in Jersey City in July, and is consistent with the Attorney General’s initial determination that Jersey City’s policy was void.
Instead, the Attorney General’s guidance states: “Municipal prosecutors should exercise their prosecutorial discretion in marijuana-related cases as they would in any other case—based on the particular facts.
The guidance states that insufficiency of the evidence usually will be the basis for amending or dismissing of a municipal court complaint, but that other reasons also might justify amendment or dismissal. For example, according to the guidance, “a municipal prosecutor should consider the impact of adverse collateral consequences of a conviction based on the specific circumstances or factors presented by the defendant or elicited by the court,” to the extent permitted by law.
“The guidance that I am issuing today confirms that municipal prosecutors can responsibly exercise discretion to deal with minor marijuana possession offenses in a progressive, equitable manner, while respecting the rule of law, including the authority of the Legislature and the Courts,” said Attorney General Grewal. “Municipal prosecutors cannot decriminalize conduct that the Legislature has criminalized. They cannot adopt blanket policies of non-prosecution. But municipal prosecutors can and should strive to ensure that individual justice is done in individual cases.”
9. Defendant knowingly waived Miranda after Spanish translation State v. A.M. 237 NJ 384 (2019)
HELD: Although the better practice would have been to read aloud the form’s waiver portion to defendant, the Court relies on the trial court’s well-supported observations and factual findings and reverses the Appellate Division’s judgment.
1. Generally, on appellate review, a trial court’s factual findings in support of granting or denying a motion to suppress must be upheld when those findings are supported by sufficient credible evidence in the record. In State v. S.S., 229 N.J. 360, 381 (2017), the Court extended that deferential standard of appellate review to “factual findings based on a video recording or documentary evidence” to ensure that New Jersey’s trial courts remain “the finder of the facts.”
2. To ensure that a person subject to custodial interrogation is adequately and effectively apprised of his rights, the United States Supreme Court developed the Miranda warnings. The administration of Miranda warnings ensures that a defendant’s right against self- incrimination is protected in the inherently coercive atmosphere of custodial interrogation. A waiver of a defendant’s Miranda rights must be knowing, intelligent, and voluntary in light of all of the circumstances surrounding the custodial interrogation. In the totality-of-the-circumstances inquiry, courts generally rely on factors such as the suspect’s age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.
3. The Court reviews the trial court’s factual findings in detail and concludes that the failure of Detective Ramos to read the entire Miranda rights form aloud did not “improperly shift[] the burden of proof to defendant to alert the interrogating officers about any difficulty he may be having understanding the ramifications of a legal waiver.” 452 N.J. Super. at 599. To eliminate questions about a suspect’s understanding, the entire Miranda form should be read aloud to a suspect being interrogated, or the suspect should be asked to read the entire form aloud. Where that is not done, the suspect should be asked about his or her literacy and educational background. Nevertheless, in this case, because sufficient credible evidence in the record supports the trial court’s findings, the Court agrees with the trial court that the State proved beyond a reasonable doubt that defendant made a knowing, intelligent, and voluntary express waiver of his Miranda rights. See S.S., 229 N.J. at 365. The Court therefore does not reach the issue of implicit waiver.
4. The Court notes that this case demonstrates plainly the importance of videotaping custodial interrogations of suspects by police.
5. Any defendant has the right to challenge a translation under N.J.R.E. 104(c), which governs pretrial hearings on the admissibility of a defendant’s statement. Because a defendant has the right to contest a translation of a custodial interrogation, as was done here, and Rule 104(c) provides the mechanism to do so, the Court rejects the holdings of the Appellate Division’s concurring opinion. That said, the State, as well as the defendant, is best served by the use of a capable translator during an interview. (A-76-17)
10. Evidence here should not have been excluded where lab report not yet provided by lab to pros
State v Washington453 NJ Super. 164 (App. Div. 2018)
The Appellate Division ruled that the State Police Lab's draft DNA report was not "within the possession, custody or control of the prosecutor" until the lab sent it to the county prosecutor, and in any event was not discoverable until the report was reviewed and approved by the lab. R. 3:13-3(b)(1)(C). Regardless of the speedy trial provisions, the court abused its discretion by excluding the DNA evidence rather than granting a continuance of trial under Rule 3:13-3(b)(1)(I) and -3(f), given the evidence's importance and the absence of surprise, prejudice, or a design to mislead.
Under the speedy trial rule and statute, a case may be "complex" if it has "complicated evidence," but time is excludable only if the complexity makes it unreasonable to expect adequate preparation for trial in the speedy trial period. R. 3:5-4(i)(7); N.J.S.A. 2A:162-22(b)(1)(g). The provision addressing failures to produce discovery is a limit on excludable time. N.J.S.A. 2A:162-22(b)(2). The court properly excluded time sua sponte under N.J.S.A. 2A:162-22(b)(1)(c), and retained jurisdiction to do so after the State sought and obtained leave to appeal. That provision excludes the time while an emergent relief request, or interlocutory appeal, is pending in this court. Time while the trial is stayed is excludable under N.J.S.A. 2A:162-22(b)(1)(l).
11. Police false promise of no jail and leniency required suppression of confession
State v. L.H. July 22, 2019
Police false promise of no jail and leniency required suppression of Confession State v. L.H. (A-59-17) July 22, 2019 ALBIN, J., writing for the Court.
The primary issue in this appeal is whether the interrogation techniques that included false promises of leniency induced defendant L.H. to confess to two alleged sexual assaults and one alleged attempted sexual assault and overbore defendant’s will. In this context, the Court must determine whether the State proved beyond a reasonable doubt that, under the totality of the circumstances, defendant’s confession was voluntary.
Defendant, who was suspected of committing the alleged offenses, was stopped and brought to the Bloomfield police headquarters on August 6, 2011, at about 2:30 a.m. After being held for three hours, he was brought to an interview room. For the first fifty- five minutes, Detective Lieutenant Joseph Krentz and Detective Thomas Fano secured information from defendant about his education, employment, prior residences, family, and his reason for driving in Bloomfield that evening. Almost an hour into the interrogation, Detective Fano told defendant that he had a “problem.” For the next twenty minutes, while defendant deflected questions that would have implicated him in a crime, the two detectives suggested that, if defendant cooperated and incriminated himself, he would receive counseling and help, not go to jail, and remain free to raise his child. Indeed, defendant was told that the truth would set him free. The detectives’ assurances and suggestions that defendant would receive help and counseling, stay out of jail, and be there for his daughter if he cooperated were aimed at assuaging the reluctance defendant repeatedly expressed about giving up the right to remain silent.
For example, Detective Krentz stated, “I just need to hear your side of the story so I can find out exactly where you are as far as getting the help you need, the right help.” Defendant asked, “The help I need is not sending me to jail is it?” Detective Krentz: “Not at all. Nobody gets rehabilitated in jail.” Detective Fano: “Yeah, I agree.” The detectives, moreover, continually minimized the nature of the assaults of which defendant was suspected, telling him, “You’re not a bad guy,” and “You didn’t hurt anybody.”
One hour and fourteen minutes into the interrogation, defendant began to make admissions about his involvement in the charged offenses. The interrogation ended at 8:51 a.m. -- more than three hours after it had begun. In his testimony at the hearing, Detective Krentz conceded that “[e]very time [defendant] expressed hesitancy, [the detectives] talked about the help he was going to get,” and that “it was clear . . . that ‘help’ meant counseling.” The trial court rejected defendant’s argument that his will was overborne by false promises and declined to suppress his confession.
Defendant also moved for an evidentiary hearing because of the failure of the police to record, electronically or otherwise, the identification procedure that led to M.H. identifying defendant as her assailant. During the fourteen earlier identification procedures, M.H. was unable to make a positive identification of her assailant. On August 8, 2011, two days after defendant’s arrest, M.H. viewed a fifteenth photographic array. In the report from that identification, the position of each photograph is given a sequential number from one to six. Next to photo position number three -- designating defendant’s photograph -- is the word “SUSPECT.” The report does not explain why the word “SUSPECT” was used rather than the six-digit number and letter assigned to every other photograph.
The trial court denied defendant’s motion for a hearing, and defendant entered guilty pleas to five counts in the indictment, preserving his right to appeal the denial of both his motion to suppress his confession and his motion for an evidentiary hearing. In an unpublished opinion, the Appellate Division reversed the trial court, vacating defendant’s convictions and remanding for further proceedings. The Court granted the State’s petition for certification. 233 N.J. 24 (2018).
HELD: The State failed to prove beyond a reasonable doubt that, under the totality of the circumstances, defendant’s statement was voluntary. Defendant may withdraw his guilty plea. The failure to record the identification procedure as required by Delgado requires a remand to allow defendant the benefit of a hearing to inquire into the reliability of the identification and any other remedy deemed appropriate by the trial court.
1. Due process requires that the State prove beyond a reasonable doubt that a defendant’s confession was voluntary and was not made because the defendant’s will was overborne. A confession which is the product of physical or psychological coercion must be considered to be involuntary and is inadmissible in evidence regardless of its truth or falsity. The voluntariness determination weighs the coercive psychological pressures brought to bear on an individual to speak against his power to resist confessing. Relevant factors include the suspect’s age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved, as well as previous encounters with law enforcement. The ultimate determination of voluntariness depends on the totality of the circumstances.
2. Because a suspect will have a natural reluctance to furnish details implicating himself, an interrogating officer may attempt to dissipate this reluctance and may even tell some lies during an interrogation. Certain lies, however, may have the capacity to overbear a suspect’s will and to render a confession involuntary. Thus, a police officer cannot directly or by implication tell a suspect that his statements will not be used against him because to do so is in clear contravention of the Miranda warnings. Other impermissible lies are false promises of leniency that, under the totality of circumstances, have the capacity to overbear a suspect’s will. A court may conclude that a defendant’s confession was involuntary if interrogating officers extended a promise so enticing as to induce that confession.
12 Some Hearsay admissible in a VOP hearing but not all
State v. Mosley 232 NJ 417 (2018)
Hearsay is generally admissible in a VOP hearing. When assessing the State’s ability to rely on hearsay to satisfy its proof obligation without contravening a defendant’s due process rights, a court fundamentally should consider the State’s reasons for relying on hearsay forms of evidence and the reliability of the evidence for its proposed purpose. In this matter, the State failed to provide any justification for relying on hearsay, and the hearsay evidence was not sufficiently reliable for its asserted purpose of substantiating the new criminal charges against defendant. A-24-16;
Applying those considerations to the case at hand, the court conclude that the State deprived defendant of an important due process confrontation right at the VOP hearing. [We argue this applies to IDRC non-compliance and CD revocation]
The State charged defendant with violating probation by committing another criminal offense. While normally that type of VOP charge is demonstrated through the submission of proof of a criminal conviction, the State here opted to proceed first with the VOP charge. It was incumbent on the State then to prove the new criminal charge. See Reyes, 207 N.J. Super. at 138, 504 A.2d 43 (“In violation hearings, the circumstances control the admission and consideration of offered evidence.”).
Defendant's ability to defend against the new criminal charges, which were the premise for the VOP charge, was undermined because the State deprived defendant of the opportunity to confront and cross-examine Zundel, or anyone else, who saw the events transpire. Defendant was prevented from questioning the key observer—Zundel—on what he could or could not see, or see well, on the day of the events in the parking lot. See ibid. (“In some situations, there is no adequate alternative to live testimony.”). The State instead proceeded with Carullo's hearsay testimony about what Zundel reported he observed on the day of the events in the parking lot instead of producing Zundel himself. A police report by Zundel, prepared in the context of an investigation and recounting subjective events in a narrative form, is not a document that fits into any exception to the hearsay rule. State v. Kuropchak, 221 N.J. 368, 388–89, 113 A.3d 1174 (2015) (holding that DWI reports containing narrative accounts by police officer are inadmissible hearsay). The hearsay evidence that the court accepted from Carullo was not reliable to prove the underlying new criminal charges that were the basis for defendant's VOP charge. The consequences of the court's determination to treat the evidence as reliable in this context were substantial for defendant.
The State did not even explain why Zundel was not available on that hearing day, or on an adjourned day, as Reyes contemplates when a factual matter, which is first presented through the production of hearsay, is disputed by a defendant. See Reyes, 207 N.J. Super. at 139, 504 A.2d 43 (noting that State may seek adjournment to supplement its proofs where hearsay evidence is contested). By declining to call any witness other than Carullo, the State prevented defendant from being able to confront the quality of the evidence against him. The court held that defendant was denied a hearing that met due process requirements.
In this case, for the reasons expressed, the court was constrained to conclude that the use of hearsay evidence to sustain the VOP charge against defendant was error.
13 No weekend jail for third offender DWIs, must serve straight time
State v. Anicama455 NJ Super. 336 (App Div. 2018)
Defendant was convicted of a third or subsequent offense of driving while intoxicated (DWI). The Municipal Court allowed him to serve the mandatory 180-day sentence under N.J.S.A. 39:4-50(a)(3) two days per week. The Law Division reversed.
The Appellate Division holds a third or subsequent DWI offender is ineligible for periodic service. Michael's Law amended the DWI statutes to require the 180-day sentence be spent in jail, excepting only up to ninety days spent in inpatient drug or alcohol rehabilitation, and to preclude other options. The amendment to N.J.S.A. 39:4-51 was intended only to bar work release for such offenders, not to lift the prohibition on their release before the jail term had been served. The specific law governing DWI sentences governs over the general provision for periodic service in N.J.S.A. 2B:12-22. The court disapproves State v. Grabowski, 388 N.J. Super. 431 (Law Div. 2006), which permitted such periodic service.
14 Driver can be charged with criminal driving while suspended if they had prior refusal and prior DWI State v Dougherty455 NJ Super. 336 (App. Div. 2018)
The court finds that the plain language of N.J.S.A. 2C:40-26(b), the fourth-degree offense of driving while suspended, includes both driving while under the influence (DWI), N.J.S.A. 39:4-50, and refusal to submit to breath testing (refusal), N.J.S.A. 39:4-50.4a. They are predicate offenses even where the prior conviction history consists of one conviction under the separate sections of the Motor Vehicle Code. In other words, one DWI and one refusal suffice for the criminal offense of driving while suspended.
15 Later obtained search warrant does not correct prior illegal warrantless search. State v. Atwood232 N.J. 433 (2018).
Search warrants are prospective in nature—they authorize the taking of action. A later-obtained search warrant does not retroactively validate preceding warrantless conduct that is challenged through a suppression motion focused on the legitimacy of the seizure that gave rise to a later search. The State must bear the burden of proving the legitimacy of the seizure that led to a later warrant and search—in this case the stop.
16. Search under a tarp under house curtilage not permitted. Collins v. Virginia, 138 S. Ct. 1663 (2018).
During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, Officer Rhodes learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. Officer Rhodes discovered photographs on Collins' Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph.
Without a search warrant, Office Rhodes walked to the top of the driveway, removed a tarp, confirmed that a motorcycle was stolen by running the license plate and vehicle identification numbers.
Held: The automobile exception does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein.
(a) This case arises at the intersection of two components of the Court's Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home. In announcing each of the automobile exception's justifications--i.e., the "ready mobility of the automobile" and "the pervasive regulation of vehicles capable of traveling on the public highways," California v. Carney, 471 U. S. 386, 390, 392--the Court emphasized that the rationales applied only to automobiles and not to houses, and therefore supported their different treatment as a constitutional matter. When these justifications are present, officers may search an automobile without a warrant so long as they have probable cause. Curtilage--"the area 'immediately surrounding and associated with the home' "--is considered " 'part of the home itself for Fourth Amendment purposes.' " Florida v. Jardines, 569 U. S. 1, 6.
Thus, when an officer physically intrudes on the curtilage to gather evidence, a Fourth Amendment search has occurred and is presumptively unreasonable absent a warrant.
(b) As an initial matter, the part of the driveway where Collins' motorcycle was parked and subsequently searched is curtilage. When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area "outside the front window," that enclosure constitutes "an area adjacent to the home and 'to which the activity of home life extends.' " Jardines, 569 U. S., at 6, 7.
Because the scope of the automobile exception extends no further than the automobile itself, it did not justify Officer Rhodes' invasion of the curtilage. Nothing in this Court's case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and " 'untether' " the exception " 'from the justifications underlying' " it. Riley v. California, 573 U. S. ___, ___.
This Court has similarly declined to expand the scope of other exceptions to the warrant requirement. Thus, just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant--see Horton v. California, 496 U. S. 128, 136-137--and just as an officer must have a lawful right of access in order to arrest a person in his home--see Payton v. New York, 445 U. S. 573, 587-590--so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception.
To allow otherwise would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application.
17 Ordinary police video not subject to OPRA
Paff v. Ocean County Prosecutor’s Office
(A-17-16) Decided August 13, 2018
The Court reversed the judgment of the Appellate Division panel, concurring with the panel’s dissenting judge that the MVR recordings were not “required by law” within the meaning of N.J.S.A. 47:1A-1.1, that they constitute criminal investigatory records under that provision, and that they are therefore not subject to disclosure under OPRA. The Court agrees with the panel’s conclusion that the recordings are not within OPRA’s “investigations in progress” provision, and that OPRA’s privacy clause does not exempt the recordings from disclosure. The Court remands the matter to the trial court for consideration of plaintiff’s claim of a common-law right of access to the MVR recordings.
18. Police can’t detail occupants on noise complaint State v Chisum 236 NJ 530 (2019)
Once the renter of the motel room lowered the volume of the music and the police declined to issue summonses, the police no longer had any reasonable suspicion that would justify the continued detention of the room’s occupants. Once the noise was abated, the police no longer had an independent basis to detain the occupants, or a basis to run warrant checks on them. Such action was unlawful. And because the detention and warrant checks were unlawful, the subsequent pat down of Woodard was also improper. The judgment of the Appellate Division is therefore reversed, and the matter is remanded to the trial court for the withdrawal of defendants’ guilty pleas and further proceedings. (A-35-17/A-36-17; 079823/079835)
19.Guilty finding vacated based on state failure to provide evidenceState v. Brown236 NJ 497 (2019)
The State’s failure to produce nineteen discovery items until one week after the beginning of defendants’ murder trial did violate defendants’ due process rights under Brady. The Court reaches this conclusion, in part, because the trial court abused its discretion by excluding admissible impeachment and exculpatory evidence withheld by the State. Though there is no evidence or allegation that the State acted in bad faith or intentionally in failing to timely produce the discoverable material, the Court nonetheless vacates defendants’ convictions and remands for a new trial because defendants were deprived of a fair trial. A-23-17/A-24-17; 079553/079556)
20. Under Emergency aid doctrine police could enter house
State v. Fede 237 NJ 138 (2019)
The Court stresses that the police officers had the right to enter defendant’s home under the emergency-aid doctrine, which permits warrantless entry under circumstances like those presented in this case. Because defendant’s refusal to remove the door chain did not constitute an affirmative interference for purposes of obstructing justice within the meaning of the obstruction statute, the Court reverses the judgment of the Appellate Division and vacates defendant’s conviction. (A-53-17)
21. Miranda violated here where detectives failed to advise subject of charges
State v. Vincenty237 NJ 122 (2019)
The record reveals that the detectives failed to inform Vincenty of the charges filed against him when they read him his rights and asked him to waive his right against self-incrimination. That failure deprived Vincenty of the ability to knowingly and intelligently waive his right against self-incrimination. Pursuant to A.G.D., Vincenty’s motion to suppress should have been granted. (A-40-17;
22 Updated Expungement Law 2018 changed procedures for expunging criminal records took effect October 1, 2018
· Allowing a petitioner to expunge up to four, instead of three, offenses or multiple offenses that occurred within a short timeframe, if the petitioner has not been convicted of any prior or subsequent offense;
· Reducing the expungement eligibility waiting period from 10 years to six years, following the latest of any conviction, payment of fine and completion of probation, parole or prison sentence;
· Further reducing the expungement eligibility waiting period if satisfaction of a fine or restitution is the petitioner’s only remaining barrier and the court finds that the expungement is in the public’s interest; and
· Aligning expungement and sentencing statutes, allowing expungement for possession of marijuana with the intent to sell up to one ounce, which is the threshold for a fourth-degree crime.
The new law decreases from five to three years the waiting period to expunge an entire juvenile record, maintaining all other requirements and provisions.
23 Weapons search not permitted here after DV TRO State v. Hemenway2019
Justice Albin
The beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms. Before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded suspicion. (A-19-18)
24 For DWI PCR on prior uncounseled DWI proceeding, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented
State v. Patel decide August 7, 2019 ALBIN, J.,
To secure relief from an enhanced custodial sentence for a subsequent DWI conviction, a non-indigent defendant must establish that in the earlier uncounseled DWI proceeding, (1) he was not advised or did not know of his right to counsel and (2) had he known of his right to counsel, he would have retained a lawyer. A defendant contending he was indigent must establish that in the earlier uncounseled DWI proceeding (1) he was not advised and did not know of his right to appointed counsel, (2) he was entitled to the appointment of counsel under the applicable financial means test, R. 7:3-2(b), and (3) had he been properly informed of his rights, he would have accepted appointed counsel.
Because denial of counsel is a structural defect in the proceeding, to secure relief from an enhanced custodial sentence, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented. The Court removes the five-year limitation in Laurick petitions and amends Rule 7:10-2(g)(2), effective immediately, to provide the following: “(2) Time Limitations. A petition seeking relief under this Rule may be filed at any time.” Here, Patel’s unrebutted certifications established that his 1994 plea was uncounseled, and he had no obligation to establish that he would not have pled guilty or been convicted at trial had he been represented by counsel. The Court therefore reverses the judgment of the Appellate Division and remands the matter for proceedings consistent with this opinion. (A-13-18)
25 HGN not admissible in DWI case
STATE v. MICHAEL J. O'NEILL unpublished A-4462-17T3
Defendant appealed his DWI conviction. Defendant argued the horizontal gaze nystagmus test [HGN test] should not have been considered and state failed to prove by competent evidence the 20-minute observation period required for the Alcotest. Testing officer admitted he did not time the 20 minutes himself. The only evidence introduced at trial as proof of the 20 minutes was officer's statement that the dispatcher told him the time was up. The time relayed by the dispatcher was a statement for the purposes of meeting the state's evidence obligation, the Confrontation Clause required that such testimonial evidence be subject to cross-examination, dispatcher did not testify and the Alcotest could not be used as evidence of defendant's DWI. Court noted that it had long been held that the HGN test could be used to establish probable cause for a DWI arrest, but lacked sufficient scientific reliability to warrant admission as evidence of guilt. Admission of defendant's HGN test was not harmless error. Trial judge did not abuse her discretion in precluding testimony of defendant's witness about the impact of hardware in defendant's ankle on his field sobriety test performance.
Source https://www.law.com/njlawjournal/almID/1566871479NJA446217T/
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Recent NJ Municipal Court Cases- the Foundation of the Municipal Court Attorney’s Arsenal
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Wednesday, December 11, 2019
Noon-1:40pm
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Kenneth A. Vercammen, Esq.
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Past Chair, NJSBA Municipal Court Practice Section
Past NJSBA Municipal Court Practitioner of the Year
John E. Kawczynski, Esq.
Municipal Court Prosecutor Metuchen & Piscataway
Chirag Mehta, Esq.
Prosecutor Irvington and Morris Plains and Municipal Court Alternate Prosecutor Edison, New Brunswick, Rockaway Township, and Perth Amboy.
David R. Spevack, Esq.
Municipal Court Prosecutor Edison, Woodbridge, Carteret
Francis M. Womack, III, Esq.
Municipal Court Prosecutor Edison, Piscataway, Sayreville, South Amboy
Do you know that there were over twentyNew Jersey decisions in 2019 alone that should be at your fingertips when you enter a Municipal Court in New Jersey?
These cases deal with major issues confronting municipal court law practitioners in this state. Without a complete understanding of what these cases involve, you could be at a serious disadvantage when you bring your next municipal court matter to court. Don’t miss this opportunity to benefit from the expertise and experience of four of the state’s leading municipal court law practitioners as they analyze this year’s leading municipal court law cases.
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Join us for a convenient luncheon webinar and become familiar with the newest key municipal court law cases that should be part of your legal arsenal. Discussion to include cases involving:
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