Newsletter NJ Laws by Kenneth Vercammen, Esq.: Winter 2020 Municipal Court Law Review

Winter 2020 Municipal Court Law Review

The Supreme Court on November 18 remanded State v Olenowski to a Special Master on the reliability and admissibility of Drug Recognition Evaluation evidence in a DWI

2. Conviction revered where state allegedly failed to provide defendant with the lab report detailing the test result of the suspected narcotics in search warrant State v. Desir

3. HGN eye test not admissible in DWI trial State v O’Neill

4. Six month jail for2C:40-26 constitutional State v Pimentel

5. Police do not have to inform tenant of right to deny entrance to apartment

State v Teoshie Williams

6. Boarding house resident has expectation of privacy in a common hallway State v Louis Williams

7 New Expungement Law 2019 SENATE No. 4154 makes expungement more available.

8. Photos

9. Next Seminars

1. The Supreme Court on November 18 remanded State v Olenowski to a Special Master (Judge Lisa who did Cassidy remand) for a Frye Hearing on the reliability and admissibility of Drug Recognition Evaluation evidence in a DWI under influence of a drug.

Sometimes a driver is arrested and charged with a DWI not for alcohol but being under the influence of drugs- either illegal or driving under valid prescription but being under the influence of the prescription.

Drug recognition evaluators /alleged expert (DRE) opinions based on drug influence evaluations (DIEs) are not generally accepted within the scientific community under Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).

Fellow speaker and NJSBA member John Menzel argued the matter before the court, urging the Supreme Court to exclude the DIE evidence in the case and remand the matter for the development of an appropriate foundation before the evidence can be admitted. The brief was written by Menzel, Joshua H. Reinitz, and NJSBA past president Miles S. Winder III.

The Supreme Court focused on the question of why a special master should not be appointed to review whether DIEs meet the standards for admissibility, noting competing studies and scholarly writings on the issue, the credibility of which the court cannot evaluate without further hearings.

The case arises from Olenowski’s convictions for driving while intoxicated, which occurred on two separate occasions in the same year. He drew a reading of .04 percent blood alcohol content the first time and a zero percent reading the second, but was visibly impaired, according to the officers who arrested him and the DREs who evaluated him. The trial court upheld the convictions, holding that DRE evidence was “generally acceptable and reliable in the scientific community.” The decision was upheld by the Appellate Division in an unpublished opinion.

In its brief, the NJSBA argued that neither the DIE technique nor the DRE opinion are generally accepted in the scientific community or sufficiently reliable to indicate that Olenowski was driving under the influence. “The NJSBA asks this court to declare the DIE technique and DRE opinion derived therefrom inadmissible for any purpose unless its proponent, the state, lays appropriate foundation,” the NJSBA wrote. “Such a ruling would provide guidance to trial courts and avoid the errors committed in the present case.” Source: NJ Bar Report. Join the NJSBA to receive this free member benefit.

2. Conviction reversed where state allegedly failed to provide defendant with the lab report detailing the test result of the suspected narcotics in search warrant State v. Desir

Defendant appealed from his conviction for possession of a Schedule I narcotic with intent to distribute. Defendant had moved to compel the state to provide him with certain discovery and to suppress the evidence seized following execution of a search warrant. After the trial court denied defendant's motions, he entered a conditional guilty plea, reserving his right to appeal the denial of his discovery motion. On appeal, defendant argued that his discovery motion should have been granted because the requested discovery would not have revealed any confidential information. Defendant further argued that the trial court failed to properly weigh the aggravating and mitigating factors and imposed an excessive sentence.

The court reversed defendant's conviction and remanded for further proceedings. The court noted that the state allegedly failed to provide defendant with the lab report detailing the test result of the suspected narcotics the informant provided to the detective who prepared the search warrant application, and also failed to provide recordings of purported consensual intercepts the detective listened to prior to seeking the warrant. Defense counsel submitted a written request for the information, acknowledging that redactions would be necessary to protect the informant's identity. Thus, the court held that the state's failure to respond made defendant's ability to succeed in his Franks hearing even more difficult since defendant could not prove that any of the detective's statements in the warrant application were false. The court held that the trial court erroneously denied defendant's discovery motion thereafter, incorrectly concluding that defendant was engaging in a "fishing expedition" for the informant's identity. The court ruled that the timing of the consideration of defendant's motions unduly prejudiced him because he needed the discovery materials to have a chance at succeeding in his Franks hearing. The court held that the state was required to provide the sought discovery. Docket A-2882-17T4

Source: NJ Law Journal Daily Briefing October 21, 2019

3. HGN eye test not admissible in DWI trial State v O’Neill unreported

Defendant appealed his DWI conviction. Defendant argued the horizontal gaze nystagmus 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/

4. Six month jail for 2C:40-26 constitutional State v Pimentel

Defendant was charged under N.J.S.A. 2C:40-26 with the fourth-degree criminal offense of driving with a license that had been suspended because of multiple previous drunk driving convictions.

The court rejects defendant's claims that the 180-day mandatory minimum jail sentence prescribed by N.J.S.A. 2C:40-26 is cruel and unusual punishment, and that it also violates federal and state constitutional principles of equal protection and due process.

The stringent penalty chosen by the Legislature is constitutionally permissible to advance legitimate policy objectives of deterrence and public safety.

The court also reaffirms that the clear terms of statute do not allow judges the discretion to impose a lesser sentence.

5. Police do not have to inform tenant of right to deny entrance to apartment

State v Teoshie Williams

In this appeal, the court addressed whether police officers must inform the occupant of a residence that he or she has the right to refuse the officers' request to enter the residence. The court determined that while officers are required to inform the occupant of the right to refuse to consent to a search of the premises, a similar requirement does not apply to requests to simply enter the residence. Finding that the initial entry into defendant's apartment based on her consent to enter was permissible, the court affirmed the trial court's denial of defendant's motion to suppress evidence seized in a subsequent consent search of the apartment following a lawful protective sweep. (A-3944-16T2)

6. Boarding house resident has expectation of privacy in a common hallway State v Louis Williams

In this appeal, the court address whether a resident of a boarding house has a reasonable expectation of privacy in a common hallway accessible by other residents. The court determined that the Law Division improperly denied defendant's motion to suppress evidence seized from his bedroom after the police observed contraband while standing in a hallway in front of defendant's bedroom door. The court concluded that boarding house residents have a reasonable expectation of privacy in the hallways linking their bedrooms to areas traditionally contained within one living unit, such as a bathroom or kitchen, and the warrantless police entry into the home was not justified by the plain view doctrine because the officers did not have a lawful right to enter.

According to the court, whether the residential structure's front door was locked was not dispositive of whether defendant's reasonable expectation of privacy extended beyond his bedroom door, as the exterior door was equipped with a lock and the evidence showed only that the door was unlocked when the police made their warrantless entry, but not at any other time. In addition, drawing on a distinction recognized by courts in other states between apartment buildings and boarding or rooming houses, the court concluded that a boarding house resident's need to use a shared hallway to access his or her bathroom supports a reasonable expectation of privacy in that hallway notwithstanding an unlocked front door. Accordingly, the court held that the trial court should have granted defendant's motion to suppress because he had a reasonable expectation of privacy in the place searched, and the State did not establish the warrantless search of the home was justified by the plain view doctrine or any other exception to the warrant requirement. (A-2490-17T4)

7 New Expungement Law 2019 SENATE No. 4154 makes expungement more available.

New Jersey expungement law signed December 18 will take effect on June 15, 2020. L. 2019, c.269 will increase the number of records of arrests and convictions that can be expunged.

S4154 creates a petition process for “clean slate” expungement for residents who have not committed an offense in ten years and who have not been convicted of the most serious crimes.

The bill also requires the State to implement an automated clean slate expungement system, which will be developed by a task force charged with studying the technological, fiscal, and practical issues and challenges associated with such a system.

Further, the bill requires that low-level marijuana convictions be sealed upon the disposition of a case, preventing those convictions from being used against those individuals in the future. It also makes numerous other changes to existing expungement procedures, including the creation of an e-filing system that would eliminate filing fees to petition for an expungement.

8 Photo p1 The Latest Municipal Court Updates on Driving under the Influence of Alcohol and Drugs NJ State Bar Association San Juan

Kenneth Vercammen, Esq., Lisa Spiegel, Esq., Associate Executive Director New Jersey State Bar Association Miles Winder, III, Esq., Past NJSBA President Manuel R. Grova, Jr., Esq., Also speaking was Hon. James M. Newman, P.J.M.C., Freehold and Chair of Supreme Court Committee on Municipal Court

P2 Photo Handling Drug, DWI and Serious Cases in Municipal Court Seminar

Front Norma M. Murgado, Esq.  Chief Prosecutor (Elizabeth), Chief Prosecutor (Woodbridge), Lorraine Nielsen, Esq. Municipal Court Prosecutor, Milltown & other towns, William Brigiani, Esq. Back Kenneth Vercammen, Esq., David Spevack, Esq. Prosecutor Edison, Woodbridge, Carteret, John Menzel, Esq.  

P3 Photo Recent NJ Municipal Court Cases Webinar John E. Kawczynski, Esq. Municipal Court Prosecutor Metuchen & Piscataway; Francis M. Womack, III, Esq. Prosecutor Edison, Piscataway, Sayreville, South Amboy [North Brunswick Mayor] David R. Spevack, Esq. Prosecutor Edison, Woodbridge, Carteret, Ken Vercammen

Available for listening CLE credit online at www.njicle.com

9. Next Seminars

Winning Strategies in Municipal Court

April 20, 2020 5:30pm-9:05pm NJ Law Center, New Brunswick

May 4, 2020 Nuts & Bolts of Elder Law NJ Law Center

July 17, 2020 Happy Hour and Social at Bar Anticipation

Every year different Professional groups and Sections of the NJ State Bar Association have co-sponsored a Happy Hour and Social event for attorneys and business professionals. The Annual Summer Networking Happy Hour is July 17, 2020 at Bar Anticipation from 5:30-7:30.

We are requesting NJSBA Sections/ Committees serve as co-sponsor for this Happy Hour. There will be no cost to your group, and great benefit for your members. It may even be a source of new members. There will be a small table to greet members.

N.J. Municipal Court - Law Review SUBSCRIPTION INFO

Please forward a check or voucher for $20.00 to receive the NJ Municipal Court Law Review. This quarterly newsletter reports changes in New Jersey Court decisions, selected revised motor vehicle and criminal laws, cases, seminars, and information on Municipal Court practice.

Vouchers accepted. Please send a stamped, self-addressed envelope for their return. Multiple subscriptions encouraged.

Please must send a $20.00 check payable to Vercammen & Associates, PC.

Name: ______________________________________

(or staple business card here)

Address: ______________________________________

We also need your email address ________________________

Return to:

Kenneth A. Vercammen, Esq.,

Editor- NJ Municipal Court Law Review

2053 Woodbridge Ave.

Edison, NJ 08817

732-572-0500

Tax ID # available

Municipal Court and criminal law attorneys may also be interested in the ABA’s CRIMINAL LAW FORMS book

Award winning book from the American Bar Association

Solo & Small Firm Division Author: Kenneth Vercammen

Use Criminal Law Forms to help represent persons charged with criminal and traffic offenses. Detailed instruction and valuable insight is offered beginning with the initial contact with the client, to walking into the courthouse, and managing the steps that follow. Two hundred and ten modifiable forms help make criminal lawyers more efficient and productive, while also reducing the chance for mistakes. Criminal Law Forms helps lawyers face the challenges of:

• Criminal defense

• DWI cases

• Juvenile offenses

• Domestic violence

• Traffic violations

• Auto Accidents

• And much more

Regular price $139.95, GP SOLO Member Price $129.95 To order contact ABA Customer Care, 1-800-285-2221 (PC: 5150457)

ISBN:

978-1-61438-879-1

http://apps.americanbar.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5150457

Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's award winning book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association. As the Past Chair of the Municipal Court Section he has served on its board for 10 years.

Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.

Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine. He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.

For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.

His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings. Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.

Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4^th degree black belt.

KENNETH VERCAMMEN

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500