Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Sunday, August 21, 2016

STATE OF NEW JERSEY VS. MARIANO ANTUNA A-0849-14T2

STATE OF NEW JERSEY VS. MARIANO ANTUNA 
A-0849-14T2 

Defendant's counsel's failure to read to him and have him answer question seventeen on the plea form, which would have conveyed to defendant the risk of deportation, resulted in ineffective assistance of counsel and requires his plea be vacated. Although counsel provided no affirmative misadvice as discussed in Nuñez-Valdéz, counsel's failure to review the question on the plea form with defendant, who could not speak or read English, requires reversal. 

Sunday, August 14, 2016

RIGOBERTO MEJIA VS. NEW JERSEY DEPARTMENT OF CORRECTIONS A-0710-13T4

RIGOBERTO MEJIA VS. NEW JERSEY DEPARTMENT OF CORRECTIONS 
A-0710-13T4 

Rigoberto Mejia, who is serving a mandatory-minimum state prison term of forty years, appeals from a cumulative sanction of three-and-one-half-years in administrative segregation for throwing bodily fluids on two corrections officers and related offenses. Although he has been released from restrictive custody, the court reverses the sanctions imposed, determining that the regulation allowing a hearing officer unfettered discretion in deciding whether or not to consider the enumerated sanctioning factors is not permissible. The court also expresses concern over the mental health treatment provided to Mejia, whose first language is not English, as well as the fact that Mejia's administrative appeal, written in Spanish, was initially affirmed without translation. 

STATE OF NEW JERSEY VS. JAMES GLEATON A-3458-13T1

STATE OF NEW JERSEY VS. JAMES GLEATON 
A-3458-13T1 
After three days of deliberations, a jury found defendant guilty of first degree distribution of cocaine and related offenses. The central and dispositive issue in this appeal concerns the trial judge’s response to criticism of the foreperson’s leadership style by a group of nine jurors. We hold the judge erred when he allowed the nine jurors to select a spokesperson to convey their grievances, instead of interviewing each juror separately. This error influenced the judge’s characterization of the foreperson as an "obstructionist." 

The judge misapplied our decision in State v. Rodriguez, 254 N.J. Super. 339 (App. Div. 1992), to replace juror number 1 as foreperson. Although well-intended, the judge’s decision had the capacity of being perceived by the foreperson as a retaliatory act intended to coerce her to change her stance in the deliberations. The judge's bias in favor of unanimity influenced the impermissibly coercive steps he took against juror number one. State v. Figueroa, 190 N.J. 219, 237-38 (2007). 

State in the Interest of N.H. (A-4-15;

State in the Interest of N.H. (A-4-15; 076316) 

The State is required to disclose all discovery in its possession when it seeks to waive jurisdiction and transfer a case from juvenile to adult court. 

State v. Michael Cushing (A-68-14

State v. Michael Cushing (A-68-14; 073925) 
The record contains ample evidence to support the Appellate Division’s conclusion that Betty Cushing did not have actual authority to consent to the search of defendant’s room, and Betty could not have conferred through any power of attorney an authority that she did not possess herself. In addition, it was not objectively reasonable for Officer Ziarnowski to rely on an apparent authority by Mylroie as the basis for 

valid third-party consent to his initial search of defendant’s bedroom. 

State v. Gary Lunsford (A-61-14;

State v. Gary Lunsford (A-61-14; 075691) 
As a long-standing feature of New Jersey law, telephone billing records are entitled to protection from government access under the State Constitution. Because they reveal details of one’s private affairs that are similar to what bank and credit card records disclose, these areas of information should receive the same level of constitutional protection and be available based on a showing of relevance. Direct judicial oversight of the process is required to guard against the possibility of abuse, and in order to obtain a court order requiring production of telephone billing records, the State must present specific and articulable facts to demonstrate that the records are relevant and material to an ongoing criminal investigation. 

Thursday, August 11, 2016

Pretrial Intervention (PTI) Program to Avoid Criminal Trials



The Pretrial Intervention Program (PTI) provides defendants, generally first-time offenders, with opportunities for alternatives to the traditional criminal justice process of ordinary prosecution. PTI seeks to render early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior. The PTI program is based on a rehabilitative model that recognizes that there may be an apparent causal connection between the offense charged and the rehabilitative needs of a defendant. Further, the rehabilitative model emphasizes that social, cultural, and economic conditions often result in a defendants decision to commit a crime. Simply stated, PTI strives to solve personal problems which tend to result from the conditions that appear to cause crime, and ultimately, to deter future criminal behavior by a defendant.

What Are the Benefits of the Pretrial Intervention Program (PTI)?

If PTI is successfully completed, there is no record of conviction and the defendant avoids the stigma of a criminal record. Although no record of a conviction exists, a defendant may want to file for an expungement to remove any record of the original arrest. Early intervention allows rehabilitative services to be provided soon after the alleged offense, in an attempt to correct the behavior that led to the offense. Some of the costs associated with the formal court process are eliminated through acceptance into PTI. PTI provides early resolution of a case, which serves the interests of the victim, the public and the defendant.

PTI reduces the burden on the court and allows resources to be devoted to more serious criminals.

What are the Conditions for Participation in Pretrial Intervention?

Supervision under the PTI program may run from 6 months to three years and is provided by the Probation Division. Certain standard conditions are imposed on those accepted into PTI, such as, random urine monitoring, and assessments of fees, penalties and fines. Additional conditions may also be imposed to require the performance of community service, payment of restitution, and submission to psychological and/or drug and alcohol evaluations and compliance with recommended treatment programs.

If a defendant successfully completes all the conditions of PTI, then the prosecutor dismisses the original charges on the recommendation of the Criminal Division Manager with consent, and there is no record of conviction. If a defendant does not successfully complete the conditions of PTI, then the defendant is terminated from the PTI program and the case is returned to the ordinary course of prosecution.

Who is Eligible for Pretrial Intervention (PTI)?

Any defendant who is charged with an indictable offense may apply.

Admission guidelines stated in the Court Rules set the following criteria:

Age - PTI is designed for adults.

Jurisdiction - Only defendants charged with indictable offenses in New Jersey may apply.

Minor Violations - Charges that would likely result in a suspended sentence without probation or a fine are generally not eligible. Those charged with ordinance, health code and other similar violations are not eligible.

Prior Record of Convictions - PTI generally excludes defendants who have been previously convicted.

Parolees and Probationers Generally excluded without prosecutors consent and considered only after consultation with parole and probation departments.

Defendants Previously Diverted - Excludes defendants who have previously been granted a diversionary program or conditional discharge.

How Does One Apply for Pretrial Intervention?

Applications to PTI must be made no later than 28 days after indictment. There is a $75 non-refundable application fee. In certain instances, this fee may be waived. The application process includes an interview with the defendant by a staff member of the Criminal Division of the Superior Court. A written report is prepared detailing the decision for admittance or rejection into the PTI program. When a defendant is accepted into PTI on the recommendation of the Criminal Division, with the consent of the prosecutor and the defendant, the judge may postpone all further proceedings against the defendant for a period not to exceed 36 months.
     The applicant may appeal a rejection to the Presiding Judge of the Criminal Division within 10 days of the rejection.
http://www.njlaws.com/pretrial-intervention.htm

Tuesday, August 09, 2016

Terroristic Threat Defense




2C:12-3. Terroristic threats a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.
b. A person is guilty of a crime of the third degree if he threatens to kill another with purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out
More info at http://www.njlaws.com/2C-12-3.html
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your drivers license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Avenue, Edison NJ 08817
732-572-0500

Sunday, July 31, 2016

STATE OF NEW JERSEY VS. RYAN RINKER A-1238-14T3

 STATE OF NEW JERSEY VS. RYAN RINKER 
A-1238-14T3 
Defendant was tried for the theft and possession of his father's revolver. The State contended that defendant sold the gun to his co-defendant, who was tried separately and convicted at an earlier trial. Defendant's father reluctantly appeared and testified at the co-defendant's trial, indicating to representatives of the prosecutor's office at the time: "I know I have to come in, but I will not trial prep, and I will not bury my son. I will come in and testify but I will not bury my son." 
When the father refused to appear at his son's trial held several months later, the State sought to introduce his testimony at the co-defendant's trial pursuant to the forfeiture-by-wrongdoing exception to the hearsay rule, N.J.R.E. 804(b)(9). After conducting a hearing pursuant to N.J.R.E. 104(a), the trial judge concluded that defendant had "indirectly engaged in wrongdoing . . . that was intended to procure the unavailability of his father as a witness in this case." The State then played a recording of defendant's father's testimony at the co-defendant's trial. 

We reversed. We examined the factual predicates necessary for admission of hearsay pursuant to N.J.R.E. 804(b)(9) and its federal counterpart and concluded the State failed to meet its burden of proof for admission. We also concluded that the error was not harmless. 

STATE OF NEW JERSEY VS. CESAR MUNGIA AND U.S. SPECIALITY INSURANCE COMPANY/ STATE OF NEW JERSEY VS. CHRISTIAN RODRIGUEZ AND AMERICAN RELIABLE INSURANCE COMPANY/ STATE OF NEW JERSEY VS. ALEXIS MELENDEZ AND AMERICAN RELIABLE INSURANCE COMPANY A-0974-14T1/A-0975-14T1/A-0976-14T1

STATE OF NEW JERSEY VS. CESAR MUNGIA AND U.S. SPECIALITY INSURANCE COMPANY/ STATE OF NEW JERSEY VS. CHRISTIAN RODRIGUEZ AND AMERICAN RELIABLE INSURANCE COMPANY/ STATE OF NEW JERSEY VS. ALEXIS MELENDEZ AND AMERICAN RELIABLE INSURANCE COMPANY 
A-0974-14T1/A-0975-14T1/A-0976-14T1 

Defendants were released on bail and fled from the United States. The sureties located the defendants in foreign countries, but the State apparently did not seek extradition. We hold that if a defendant becomes a fugitive and flees to a foreign country, there is a presumption against remission. The surety must make every effort to assist in the re-apprehension of the defendant, including by locating the defendant in the foreign country. The failure to extradite a located defendant does not excuse the sureties from their contract with the State, and generally does not justify remission if the State has no ability to obtain extradition of the defendant. However, if the surety locates the defendant in a foreign country, and extradition is possible, but the State elects not to request that the federal government seek extradition, there is no absolute bar against remission. In that situation, the trial court should consider the general factors governing remission. 

State v. Khalid Mohammed (A-70-14; 075901)



If Juror 14 was inattentive, it was only during inconsequential pretrial instructions and was neither prejudicial nor clearly capable of producing an unjust result. Because the trial court’s finding that Juror 14 was attentive during the jury charge, which is a consequential portion of the trial, was adequately supported by the judge’s personal observations, no further inquiry was required. 

State v. Rosenthal & Rosenthal, Inc. v. Vanessa Benun (A-6-15; 076266)

State v. Rosenthal & Rosenthal, Inc. v. Vanessa Benun 
(A-6-15; 076266) 

When a lender holds a mortgage that secures optional future advances, the prior lien loses priority for advances made after actual notice of an intervening mortgage, in this case Riker’s intervening lien. 

Thursday, July 21, 2016

Police stop of car for high beam which did not affect traffic not proper and evidence suppressed State v. Scriven

Police stop of car for high beam which did not affect traffic not proper and evidence suppressed
State v. Scriven (A-11-15) (075682)
Argued April 26, 2016 -- Decided July 20, 2016
ALBIN, J., writing for a unanimous Court.
In this appeal, the Court considers the circumstances under which the high-beam statute, N.J.S.A. 39:3-60, justifies a police stop of a vehicle.
On November 3, 2013, at approximately 3:00 a.m., Essex County Sheriff’s Officer David Cohen and his partner, Officer Eric Overheely, observed an unoccupied vehicle “with a fictitious temp tag” located on the left side of Adams Street in the City of Newark. Adams is a one-way street, which runs parallel to Independence Park and forms a “T” intersection with New York Avenue. Traffic flowing on New York Avenue toward the park must turn left onto Adams Street. Officer Cohen double-parked his patrol car immediately behind the unoccupied vehicle to investigate. He kept his headlights on but did not activate his overhead lights. After determining that the vehicle was unregistered, he called for a tow truck.
While waiting on foot for the tow truck to arrive, Officer Cohen observed a vehicle on New York Avenue approaching from about a quarter-mile away. The vehicle was traveling with its high beams on at a normal speed in this well-lit residential area. The vehicle obeyed the stop sign at the intersection of New York Avenue and Adams Street. Using the strobe light attachment on his flashlight, Officer Cohen signaled to the driver to pull over, and the driver did so, turning left onto Adams street. Officer Cohen intended to educate the driver on the proper use of high beams. In the officer’s experience, stolen cars are often driven with high beams, and the blinding light takes away his tactical advantage to see inside a car and know whether guns are pointed at him.
As Officer Cohen approached the driver’s side of the vehicle, he did not give the driver a warning to turn off her high beams, but instead instructed her to produce her license, registration, and insurance cards. With the driver’s side window down, Officer Cohen could smell burnt marijuana. He then walked around the vehicle, asked defendant, the front passenger, to roll down the window, and detected a stronger odor of burnt marijuana. Officer Cohen asked defendant and the rear passenger whether they had any “CDS” (controlled dangerous substance) on them, and both replied, “No.” While engaged in this exchange, Officer Cohen noticed inside the vehicle a hollowed-out cigar, which, from his experience and training, he knew was used as a receptacle for marijuana. Based on this observation, Officer Cohen told defendant to step out of the car. In response, defendant indicated that he had a gun under his jacket. The officer ordered defendant to keep his hands up while he retrieved the weapon. Defendant was placed under arrest, and the driver was later issued a ticket for a violation of the high-beam statute.
         Defendant was charged with unlawful possession of a .40 caliber handgun, receiving stolen property (the handgun), possession of hollow-nose bullets, and possession of a large-capacity magazine. Defendant filed a motion to suppress the handgun, the bullets, and the magazine on the ground that the police did not have a constitutionally permissible basis for stopping the car in which he was a passenger.  
         The court granted the motion because the automobile stop violated the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution. The court observed that the high-beam statute presupposes that the offending driver’s high beams are on when his vehicle approaches an oncoming vehicle. Here, Officer Cohen testified without equivocation that he did not observe any other vehicle traveling in the opposite direction toward defendant’s vehicle. Therefore, the court reasoned that, in the absence of a violation of the high-beam statute, Officer Cohen did not have a reasonable and articulable suspicion to justify a motor-vehicle stop. The court also concluded that the stop could not be justified based on the community-caretaking exception to the warrant requirement because the operation of the vehicle did not suggest that the driver was impaired or in need of police assistance.
         The Appellate Division granted the State’s motion for leave to appeal and, in an unpublished opinion, affirmed the trial court’s suppression order. Like the trial court, the appellate panel found that Officer Cohen did not have an objectively reasonable basis to believe that the operator of the subject car violated the high-beam statute because there were no oncoming vehicles approaching it. In light of the unambiguous language of the statute, the panel rejected the argument that Officer Cohen made a good faith mistake of law that allowed for the denial of the suppression motion. The panel also asserted that the community-caretaking doctrine did not apply because the record contains no proof that operation of the vehicle otherwise presented a traffic safety hazard or endangered the safety and welfare of defendant, the officer, or others on the road at the time. The Court granted the State’s motion for leave to appeal. 223 N.J. 551 (2015).
       HELD: The trial court and Appellate Division properly concluded that the motor-vehicle stop violated the Federal and State Constitutions. The language of the high-beam statute, N.J.S.A. 39:3-60, is unambiguous; drivers are required to dim their high beams only when approaching an oncoming vehicle. Neither a car parked on a perpendicular street nor an on-foot police officer count as an oncoming vehicle. The judgment of the Appellate Division upholding the trial court’s suppression of the evidence is affirmed.
         1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution provide that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. A motor-vehicle stop by the police constitutes a seizure of persons within the meaning of those provisions. Under both provisions, a police officer must have a reasonable and articulable suspicion that the driver of a vehicle, or its occupants, is committing a motor-vehicle violation or a criminal or disorderly persons offense to justify a stop. The heart of this constitutional analysis is whether the motor-vehicle stop was unreasonable, recognizing that raw, inchoate suspicion grounded in speculation cannot be the basis for a valid stop. (pp. 12-13).
         2. The State argues that the driver of the car in which defendant was traveling was violating the high-beam statute, thus justifying the motor-vehicle stop. The language of the high-beam statute requires a driver to dim his or her vehicle’s high beams when approaching an oncoming vehicle. The plain language of a statute is the best indicator of its meaning. The word “oncoming” is consistently defined as “coming nearer,” “nearing,” “approaching,” and “moving forward upon one.” An “oncoming vehicle” and “oncoming driver” cannot mean an unoccupied vehicle, parked on a perpendicular roadway, whose driver and passenger are standing in the street, even if the unoccupied vehicle’s motor is running and its headlights are on. Accordingly, the driver of the subject car was not in violation of the high-beam statute. The statute is unambiguous in its language and meaning to both the public and the police. Officer Cohen, who was on foot waiting for a tow truck, was not an “oncoming vehicle” or “oncoming driver” to the car approaching him from New York Avenue. Further, because Officer Cohen did not have a reasonable and articulable suspicion to believe that the subject car was operating in violation of the statute, the Court need not address the issue dealt with in Heien v. North Carolina, __ U.S. __, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014). In Heien, the United States Supreme Court held that, under the Fourth Amendment, the requisite suspicion necessary for the police to make a stop for a motor-vehicle violation may be based on an objectively reasonable mistake of law. Here, however, because Officer Cohen’s mistake of law was not objectively reasonable, Heien is inapplicable. (pp. 13-19)
         3. The State alternatively argues that Officer Cohen had a justifiable basis for stopping the subject car under the community-caretaking exception to the warrant requirement of the Fourth Amendment and Article I, Paragraph 7 of our State Constitution. The community-caretaking doctrine recognizes that police officers provide a wide range of social services outside of their traditional law enforcement and criminal investigatory roles. Police officers who have an objectively reasonable basis to believe that a driver may be impaired or suffering a medical emergency may stop the vehicle for the purpose of making a welfare check and rendering aid, if necessary. The police do not have to wait until harm is caused to the driver or a pedestrian or other motorist before acting. The evidence here – according to the trial court – did not suggest that the driver of the car was impaired or that the vehicle had a problem.
         A police officer conducting an investigation on the street can ask and even instruct a driver to dim high beams if the brightness of the lights is obstructing or impairing the officer’s ability to perform certain tasks. Here, however, Officer Cohen did not signal to the driver to dim her high beams because they were interfering with his mission, which was waiting for a tow truck to take away an unregistered vehicle. Rather, he effectuated a motor-vehicle stop under the objectively unreasonable belief that the driver was in violation of the high-beam statute. The motor-vehicle stop was not justified. The subsequent seizure of the handgun, hollow-nose bullets, and large-capacity magazine were the fruits of a violation of the Fourth Amendment and its state constitutional counterpart. The court properly suppressed the evidence.
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE ALBIN’S opinion. JUDGE CUFF (temporarily assigned) did not participate.


Prosecutor must provide videotape and audiotape plus names of officers from other towns involved in stop State v Stein

Prosecutor must provide videotape and audiotape plus names of officers from other towns involved in stop
State v Stein


SUPREME COURT OF NEW JERSEY
A-26 September Term 2014
074466

In this appeal from defendant’s conviction for driving while intoxicated (DWI) and careless driving, the Court considers the obligations of a municipal prosecutor under Rule 7:7-7(b), which governs discovery in municipal court proceedings.
Defendant Robert Stein was charged with DWI and careless driving after a motor vehicle accident in Wayne Township. The responding officers observed that defendant’s eyes were bloodshot and watery, his speech was slurred, his breath smelled of alcohol, and, as he walked, he swayed and grasped for support. Defendant also failed the field sobriety tests. Defendant claimed that, while performing the sobriety tests, he was suffering the effects of the crash of his vehicle and deployment of the air bags, which hit him squarely in the face. The two breath samples that defendant gave during a breathalyzer test revealed blood alcohol concentrations of 0.17 and 0.18 percent.
In pretrial discovery, defendant requested the names of the police officers who responded to the scene, including those from a neighboring township. The municipal prosecutor did not provide the names of the neighboring township’s officers, and defendant did not raise the issue with the municipal court. Defendant also requested videotapes which may have recorded his appearance, behavior, and motor skills at the accident scene and police headquarters. The municipal prosecutor repeatedly stated, at a pretrial hearing and trial, that videotapes did not exist. Defendant disputed that contention, and continued to request the tapes. The record is unclear on whether videotapes existed when defendant requested them because that issue was neither presented to, nor determined by, the municipal court.
The municipal court found defendant guilty of DWI and careless driving. The court based its DWI finding on the breathalyzer readings and the officers’ observations of defendant. The court sentenced defendant, as a third-time DWI offender, to incarceration for a term of 180 days in the county jail and loss of his license for a period of ten years. After a trial de novo on the record, the Law Division also convicted defendant of DWI and careless driving, based on the breathalyzer readings and, separately, on observational evidence. The court imposed the same sentence as did the municipal court. Additionally, the Law Division ruled that the municipal prosecutor was not required to provide discovery of the names of the neighboring police officers or the videotapes that defendant requested. The Appellate Division affirmed the motor-vehicle convictions and the Law Division’s discovery rulings. This Court granted limited certification. 220 N.J. 97 (2014).
H_E_L_D_:_ _Under Rule 7:7-7(b), the municipal prosecutor was required to provide defendant with the names of the police officers from the adjacent jurisdiction who responded to the accident scene. Because, when the prosecutor failed to provide the information, defendant did not raise this issue before the municipal court, or seek relief under the Rule, the issue has been waived. The prosecutor was also required to provide the videotapes that defendant requested, if they existed, since such information was clearly relevant to a DWI defense. Because the Court cannot determine from the record whether any videotapes exist, the matter is remanded to the Law Division for further proceedings on this issue.
1. The resolution by the trial court of a discovery issue is entitled to substantial deference and will not be overturned absent an abuse of discretion. On appeal, a court need not defer to a discovery order that is based on a mistaken understanding of the applicable law. In reviewing the meaning of a court rule, this Court owes no deference to the interpretations of the trial court and the Appellate Division, unless they are persuasive in their reasoning.   

2. The discovery rules governing the municipal court and the Criminal Part of the Law Division are nearly identical, and both mandate the disclosure of the same categories of information. Broad discovery and the open-file approach apply in criminal cases to ensure fair and just trials. In light of the similarity between criminal and municipal court cases, the procedural protections afforded, and their discovery rules, the liberal approach to discovery in criminal cases is applicable in municipal court cases. Rule 7:7-7(b) provides that a defendant has a right to discovery of all relevant material in a municipal court case. The Rule sets forth eleven specific categories of information that a defendant is entitled to receive, on written request to the municipal prosecutor.   
3. Under Rule 7:7-7(b)(7), if the municipal prosecutor knows that police officers from an adjoining jurisdiction have relevant information pertaining to a DWI case, their names and addresses must be disclosed to the defendant. The Rule does not distinguish between individuals with relevant information who are located within the municipality having jurisdiction over the charges against a defendant, and those located outside the jurisdiction.   
4. Under Rule 7:7-7(b)(6), a municipal prosecutor is required to provide a defendant, upon his request, with relevant documentary evidence, including video and sound recordings and images if it is within the State’s custody or control. A video or sound recording, such as a recording from a patrol car’s dashboard camera, or a video recording of a breathalyzer test, or defendant’s appearance, behavior and motor skills, including his performance of psychomotor physical or sobriety tests, is relevant to prove or disprove a DWI defendant’s intoxication. The State may seek the redaction of a video recording, or an in camera review, if necessary, under appropriate circumstances and consistent with a defendant’s fair-trial rights. To ensure the availability of such evidence, a defendant should give written notice to the municipal prosecutor to preserve pertinent videotapes.   
5. In this case, the municipal prosecutor had an obligation under Rule 7:7-7(b)(7) to provide defendant with the names of the police officers from the adjoining town of Pequannock who had responded to the accident scene, based on the two discovery letters that defense counsel sent to the municipal prosecutor. However, defendant did not seek to compel the prosecutor to comply with the State’s disclosure obligations, as authorized by Rule 7:7-7(j). Because defendant did not raise or preserve the issue in municipal court, the Court declines to consider it on appeal.   
6. The two discovery letters that defendant’s counsel sent to the municipal prosecutor requesting videotapes, or recordings made by a video-equipped police vehicle, of the accident scene and of defendant’s appearance and performance of the sobriety tests, unquestionably sought relevant evidence. This Court disagrees with the determination of the courts below, and holds that the videotapes must be disclosed under Rule 7:7-7(b)(6), provided that such recordings existed at the time defendant sought the information. Such tapes would provide evidence relevant to defendant’s sobriety and the officers’ conclusion that defendant was under the influence.   
7. The Court remands this matter to the Law Division for further proceedings to determine whether any relevant video recordings ever existed, or were available when defendant made the discovery requests. Depending on the court’s conclusions on remand regarding whether the tapes existed, the Law Division has wide latitude to fashion an appropriate remedy pursuant to Rule 7:7-7(j).   
The judgment of the Appellate Division is A_F_F_I_R_M_E_D_ _I_N_ _P_A_R_T_ _and R_E_V_E_R_S_E_D_ _I_N_ _P_A_R_T_, and the matter is R_E_M_A_N_D_E_D_ _to the Law Division for further proceedings consistent with the Court’s opinion.


Tuesday, July 19, 2016

Summer Municipal Court Law Review 2016


 1. No Jury trial for DWI. State v. Denelsbeck ___ NJ ___ (2016) (A-42-14) 

Third or subsequent DWI offenders are not entitled to a jury trial, and defendant’s conviction procured by a bench trial did not violate his Sixth Amendment right to a jury trial. 

2. Police can stop on broken tail light. State v. Sutherland ___ NJ Super. ___ (App. Div. 2016) A-5432-14T3 

A police officer stopped defendant's car because one of the four taillights was not illuminated. The Law Division granted defendant's motion to suppress finding that N.J.S.A. 39:3-61(a) and -66 only required one functioning tail light on each side and the officer's mistake rendered the stop unreasonable. 
The court reversed, noting the confusing state of Title 39 and concluding that the officer had reasonable and articulable suspicion of a motor vehicle violation.

3. US Supreme Court permits DWI breath tests but rejects blood test without warrant. Birchfield v. North Dakota  ___ S. Ct. ___ (2016) No. 14-1468.

Held:
1. The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. 
(a) Taking a blood sample or administering a breath test is a search governed by the Fourth Amendment. See Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 616–617; Schmerber v. California, 384 U. S. 757, 767–768. These searches may nevertheless be exempt from the warrant requirement if they fall within, as relevant here, the exception for searches conducted incident to a lawful arrest. This exception applies categorically, rather than on a case-by-case basis. Missouri v. McNeely, 569 U. S. ___, ___, n. 3.
(b) The search-incident-to-arrest doctrine has an ancient pedigree that predates the Nation’s founding, and no historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches. The mere “fact of the lawful arrest” justifies “a full search of the person.” United States v. Robinson, 414 U. S. 218, 235. The doctrine may also apply in situations that could not have been envisioned when the Fourth Amendment was adopted. In Riley v. California, 573 U. S. ___, the Court considered how to apply the doctrine to searches of an arrestee’s cell phone. Because founding era guidance was lacking, the Court determined “whether to exempt [the] search from the warrant requirement ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” Id., at ___. The same mode of analysis is proper here because the founding era provides no definitive guidance on whether blood and breath tests should be allowed incident to arrest.
(c) The analysis begins by considering the impact of breath and blood tests on individual privacy interests.
(1) Breath tests do not “implicate] significant privacy concerns.” Skinner, 489 U. S., at 626. The physical intrusion is almost negligible. The tests “do not require piercing the skin” and entail “a minimum of inconvenience.” Id., at 625. Requiring an arrestee to insert the machine’s mouthpiece into his or her mouth and to exhale “deep lung” air is no more intrusive than collecting a DNA sample by rubbing a swab on the inside of a person’s cheek, Maryland v. King, 569 U. S. ___, ___, or scraping underneath a suspect’s fingernails, Cupp v. Murphy, 412 U. S. 291. Breath tests, unlike DNA samples, also yield only a BAC reading and leave no biological sample in the government’s possession. Finally, participation in a breath test is not likely to enhance the embarrassment inherent in any arrest. 
(2) The same cannot be said about blood tests. They “require piercing the skin” and extract a part of the subject’s body, Skinner, supra, at 625, and thus are significantly more intrusive than blowing into a tube. A blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. That prospect could cause anxiety for the person tested.
(d) The analysis next turns to the States’ asserted need to obtain BAC readings. 
(1) The States and the Federal Government have a “paramount interest . . . in preserving [public highway] safety,” Mackey v. Montrym, 443 U. S. 1, 17; and States have a compelling interest in creating “deterrent[s] to drunken driving,” a leading cause of traffic fatalities and injuries, id., at 18. Sanctions for refusing to take a BAC test were increased because consequences like license suspension were no longer adequate to persuade the most dangerous offenders to agree to a test that could lead to severe criminal sanctions. By making it a crime to refuse to submit to a BAC test, the laws at issue provide an incentive to cooperate and thus serve a very important function.
(2) As for other ways to combat drunk driving, this Court’s decisions establish that an arresting officer is not obligated to obtain a warrant before conducting a search incident to arrest simply because there might be adequate time in the particular circumstances to obtain a warrant. The legality of a search incident to arrest must be judged on the basis of categorical rules. See e.g., Robinson, supra, at 235. McNeely, supra, at ___, distinguished. Imposition of a warrant requirement for every BAC test would likely swamp courts, given the enormous number of drunk-driving arrests, with little corresponding benefit. And other alternatives—e.g., sobriety checkpoints and ignition interlock systems—are poor substitutes. 
(3) Bernard argues that warrantless BAC testing cannot be justified as a search incident to arrest because that doctrine aims to prevent the arrestee from destroying evidence, while the loss of blood alcohol evidence results from the body’s metabolism of alcohol, a natural process not controlled by the arrestee. In both instances, however, the State is justifiably concerned that evidence may be lost. The State’s general interest in “evidence preservation” or avoiding “the loss of evidence,” Riley, supra, at ___, readily encompasses the metabolization of alcohol in the blood. Bernard’s view finds no support in Chimel v. California, 395 U. S. 752, 763, Schmerber, 384 U. S., at 769, or McNeely, supra, at ___. 
(e) Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Blood tests, however, are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant. In instances where blood tests might be preferable—e.g., where substances other than alcohol impair the driver’s ability to operate a car safely, or where the subject is unconscious—nothing prevents the police from seeking a warrant or from relying on the exigent circumstances exception if it applies. Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation.
2. Motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.
3. These legal conclusions resolve the three present cases. Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search that he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. Because there appears to be no other basis for a warrantless test of Birchfield’s blood, he was threatened with an unlawful search and unlawfully convicted for refusing that search. Bernard was criminally prosecuted for refusing a warrantless breath test. Because that test was a permissible search incident to his arrest for drunk driving, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it. Beylund submitted to a blood test after police told him that the law required his submission. The North Dakota Supreme Court, which based its conclusion that Beylund’s consent was voluntary on the erroneous assumption that the State could compel blood tests, should reevaluate Beylund’s consent in light of the partial inaccuracy of the officer’s advisory. 

4.   Out of state DWI counts for criminal driving while suspended. State v. Luzhak  ___ NJ Super. ___ (App.Div. 2016) A-2445-14T3

       In this case of first impression, the court interpreted N.J.S.A. 2C:40-26(b), which provides that it is a crime of the fourth degree to operate a motor vehicle during a period of license suspension if the license was suspended for a second violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4(a), as including out- of-state convictions for DWI.
The court reached our determination after consideration of analogous statutes relating to interstate recognition of motor vehicle violations and the use of equivalent out-of-state convictions as prior offenses for enhanced DWI sentencing. The court also considered the legislative policy behind the statute's enactment. (Kenneth Vercammen handled this case).

5. Defense should be permitted to present witnesses. State v. Cope 224 NJ 530 (2016) (A-13-14; -74206)

1) After arresting defendant in his living room, the police conducted a protective sweep of an adjoining porch to ensure no individuals posing a safety risk were on the premises. The sweep did not violate constitutional standards and the trial court properly denied the motion to suppress the rifle. 2) The trial court abused its discretion when it denied defendant the right to present a full third-party-guilt defense. A witness whose testimony is central to a defense of third-party guilt cannot be kept off the stand unless the expected version of events is so patently false that the events could
occurred.

6. Gap time jail credit permitted in DWI. State v. Walters ___ NJ Super. ___ (App.Div. 2016) A-0203-14T1

Defendant Matthew J. Walters appeals from the Law Division order that removed gap-time credit from a previously-entered judgment of conviction (JOC). The Law Division found that gap- time credit cannot be awarded for a sentence imposed on a Title 39 violation - driving while intoxicated (DWI), N.J.S.A. 39:4- 50. The court concluded that nothing in the language or statutory scheme of N.J.S.A. 2C:44-5(b) supports the conclusion that a defendant must be convicted for a Criminal Code offense to receive gap-time credits. Given that defendant has satisfied the requirements of N.J.S.A. 2C:44-5(b)(2), he is entitled to gap- time credits even though the sentence was for a Title 39 violation. Reversed and remanded to the Law Division for amendment of the judgment of conviction to reflect the proper award of gap-time credits.

7. No mandatory jail on leaving scene. State v. Frank ___ NJ Super. ___ (2016) A-0832-13T1
Defendant was convicted of leaving the scene of a motor vehicle accident involving serious bodily injury, N.J.S.A. 2C:12-1.1, and leaving the scene of a motor vehicle accident resulting in injury, N.J.S.A. 39:4-129(a). The trial court ordered that the motor vehicle violation merge into the criminal offense, and that the penalties survive merger. The judge sentenced defendant to a four-year term of probation for the criminal offense and a custodial sentence of 180 days on the Title 39 violation, believing the custodial sentence was mandatory. The court agreed that the criminal offense and motor vehicle violation merged as a matter of law, and that the Title 39 penalties survived merger, but the court reversed the imposition of a custodial sentence, concluding it was not mandatory under N.J.S.A. 39:4-129(a), and remanded for resentencing.
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9. Jason T. Komninos, Esq, Shanna McCann,.Esq, Karen A. Ostberg, Esq,  Kenneth Vercammen, Esq “Ethical Marketing” Seminar
Making Money in Municipal Court the Ethical Way

10. Handling Drug, DWI and Serious Motor Vehicle Cases in Municipal Court Seminar
October 24. 2016
5:30PM-9:00PM
NJ Law Center, New Brunswick, NJ
        Please forward to any attorneys, prosecutors or judges you believe may be interested.
        Speakers: Kenneth A. Vercammen, Esq., Past Municipal Court Attorney of the Year
Norma M. Murgado, Esq., Chief Prosecutor - Elizabeth
Assistant Prosecutor - Woodbridge
Tara Auciello - Edison Prosecutor
John Menzel, Esq., - Past Chair Municipal Court Section
William G. Brigiani, Esq., - Past President Middlesex County Bar

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