Criminal Law- Recent Cases NJ Kenneth Vercammen Law Office. 732-572-0500 Edison, NJ: December 2011

Monday, December 26, 2011

DWI reserved and remanded where trial judge did not make findings of fact STATE v. ARTHUR T. CHESTER, III,

DWI reserved and remanded where trial judge did not make findings of fact

STATE v. ARTHUR T. CHESTER, III,

Defendant-Appellant.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1942-10T4

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

October 11, 2011

Submitted September 14, 2011 - Decided

Before Judges Graves and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Municipal Appeal No. 06-10.

Stefankiewicz & Barnes, L.L.C., attorneys for appellant (David A. Stefankiewicz, on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Thomas A. DeSimone, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Arthur T. Chester, III appeals his conviction for driving while intoxicated on December 22, 2008, N.J.S.A. 39:4-50. He filed a motion to suppress, alleging that the motor vehicle stop was unconstitutional. The municipal court judge denied the motion to suppress, finding that the 4:45 a.m. stop of defendant's car at a security checkpoint to a nuclear plant in Lower Alloways Creek was constitutional. Although defendant's brother testified that he, rather than defendant, drove the car, the municipal judge concluded that defendant was the driver. Defendant stipulated that he was under the influence of alcohol. Testing revealed a .14 blood alcohol content.

Defendant was again found guilty after a trial de novo in the Law Division, conducted by agreement on the papers without oral argument.

On appeal, defendant raises the following arguments:

POINT I

THE STATE DID NOT CARRY ITS BURDEN OF PROVING THAT THE MOTOR VEHICLE STOP AND SEIZURE WAS LAWFUL.

POINT II

THE STATE FAILED TO PROVE THAT DEFENDANT OPERATED THE MOTOR VEHICLE.

The Law Division judge did not make sufficient findings of fact or conclusions of law to allow us to review her decision. The judge put no reasons on the record and made no factual findings. She prepared an order stating in pertinent part the following:

1. The stop of the defendant was supported by reasonable suspicion based on the totality of the circumstances.

2. The State did prove beyond a reasonable doubt that the defendant operated the motor vehicle while intoxicated; therefore the defendant's appeal is DENIED.

When considering appeals from the municipal court, the Law Division must consider the record de novo and make independent findings of fact and conclusions of law in support of an independent finding of guilty or not guilty. State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983) (citing State v. States, 44 N.J. 285, 293 (1965)); see also Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 3:23-8 (2012).

Under our court system, defendants are entitled to two independent considerations of the evidence, one by the municipal court after a trial and one de novo on the record by the Law Division. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)); see also Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 3:23-8 (2012). If defendant appeals, we then apply the appellate standards of review in analyzing the Law Division decision. Our analysis is limited to a determination of whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). We "consider only the action of the Law Division and not that of the municipal court." Id. at 175-76 (citing State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)).

We therefore remand this matter to the Law Division to make findings of fact and conclusions of law.

Reversed and remanded.

STATE OF NEW JERSEY VS. THOMAS W. BERNOKEITS, JR. A-3150-10T4

STATE OF NEW JERSEY VS. THOMAS W. BERNOKEITS, JR.           A-3150-10T4

     We hold that standard, roadside field sobriety testing does not require the police to have probable cause to arrest or to search, but rather may be undertaken on the basis of a reasonable articulable suspicion alone that defendant was driving while intoxicated.   12-22-11

positive drug result not always neglect for DFYS V.T., G.G. AND R.S.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES.           V.T., G.G. AND R.S.

A-2571-10T4

     R.S. appeals the finding that he neglected his eleven-year- old daughter by testing positive for drugs at two supervised visits.  The Division of Youth and Family Services acknowledges that he behaved properly at both visits.  We hold that under these circumstances, the positive test results in themselves are not sufficient evidence of abuse or neglect.  12-21-11

STATE OF NEW JERSEY VS. NICOLE M. HOLLAND // STATE OF NEW JERSEY VS. KENNETH S. PIZZO, JR. A-4384-09T3/A-4775-09T3

STATE OF NEW JERSEY VS. NICOLE M. HOLLAND // STATE OF           NEW JERSEY VS. KENNETH S. PIZZO, JR.

          A-4384-09T3/A-4775-09T3

     We hold that sufficient credible evidence supports the remand court's findings that the Control Company digital thermometer is comparable in all material respects to the Ertco- Hart digital thermometer previously used during the Alcotest calibration process, and that the Control Company certificate is facially valid and satisfies the requirements as a foundational document as required by State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).  12-20-11

STATE OF NEW JERSEY VS. JOHN J. LAWLESS, JR. A-2064-10T3

STATE OF NEW JERSEY VS. JOHN J. LAWLESS, JR.           A-2064-10T3

     Defendant pled guilty to aggravated manslaughter and driving while intoxicated.  After consuming a large amount of beer, defendant fell asleep at the wheel of his car, crossed the center line of the road and collided with an on-coming car, killing the driver and causing serious injuries to the passengers.  Citing aggravating factors two (the gravity and seriousness of the harm inflicted), three (the risk that defendant will commit another offense), six (the extent of defendant's prior criminal record), and nine (the need for specific and general deterrence), the judge imposed a thirty- year term of imprisonment for the aggravated manslaughter charge.

          We held that the record did not support reliance on aggravating factor two because defendant pled guilty to only one charge involving one victim; therefore, the judge could not rely on  the injuries suffered by other victims of the collision.  We also held that the judge could not rely on multiple prior driving while intoxicated convictions because these charges are not considered crimes.  We remanded for reconsideration of the sentence in accordance with the aggravating factors supported by the record.   12-07-11

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS A-5962-08T3

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF           CORRECTIONS

A-5962-08T3

     An inmate at the Adult Diagnostic Treatment Center (ADTC) challenged the authority of the Commissioner of the Department of Corrections to transfer inmates to the ADTC who do not meet the qualifications for confinement at the ADTC set forth in the Sexual Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, more specifically the provisions of N.J.S.A. 2C:47-3.  We concluded that the very specific provisions of the SOA, as explored at length by the Supreme Court in In re Civil Commitment of W.X.C., 204 N.J. 179, 196-99 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011), significantly limit the Commissioner's otherwise broad discretion to assign inmates to available institutions under N.J.S.A. 30:4-91.2, and that only sex offenders who meet each of the three criteria set forth in the SOA can be confined at the ADTC.  Those criteria are: (1) the offender's conduct was characterized by a pattern of repetitive, compulsive behavior, (2) the offender is amenable to sex offender treatment, and (3) the offender is willing to participate in such treatment.  12-02-11

State v. Reynold Regis (A-81-10; 066947)

12-14-11 State v. Reynold Regis (A-81-10; 066947)
 N.J.S.A. 39:4-88(b) describes two separate and
 independent offenses, one for a driver’s failure to
 maintain a lane to the extent practicable and the
 other for changing lanes without ascertaining the
 safety of the lane change.

John Rogers v. Cape May County Office of the Public Defender (A-63-10; 067048)

 John Rogers v. Cape May County Office of the Public           Defender (A-63-10; 067048)

          Defendant was not “exonerated” until the indictment           was dismissed with prejudice on July 25, 2008, and his           claim was thus not barred by the one-year filing           limitation in N.J.S.A. 59:8-9.  Nevertheless, because           the claim was filed ten days beyond the ninety-day           limit set forth in N.J.S.A. 59:8-8, further           proceedings are required to determine whether the           “extraordinary circumstances” standard in N.J.S.A.           59:8-9 was satisfied.  12-5-11

Sunday, December 25, 2011

Fall 2011 Municipal Court Law Review

1. DP May Require Forfeit of Public Office. State v. Kennedy 419 NJ Super. 475 (App. Div. 2011)

The offense of tampering with physical evidence is "an offense involving dishonesty," which requires the forfeiture of public office or employment under N.J.S.A. 2C:51-2(a)(1).

2. New Expert Testimony Requires Testimony of Acceptability and Reliability. State v. Pittman 419 NJ Super. 584 (App. Div. 2011)

New Jersey has not considered the admissibility in a criminal case of the results of the phenolphthalein presumptive test for the presence of blood on a person or object or any other presumptive test utilized for that purpose. Nonetheless, in this case, evidence of a positive result was introduced, without objection, by a police detective with no prior experience in conducting the test and no understanding of how it functioned or of the possibility of false positive results occurring as the result of the presence of substances other than blood. The court found the introduction of the test results to constitute reversible error, and in the course of our discussion of the issue, canvassed precedent from other states discussing the conditions for admissibility of the phenolphthalein test and other presumptive tests for the presence of blood.

3. Denial of Criminal Motions does not bar OPRA Request. Kovalcik v. Somerset County Prosecutor’s Office 206 NJ 581 (2011)

The judgment is affirmed to the extent that it concluded that the police and prosecutor office documents are not exempt as protected by an order of confidentiality. The judgment is reversed to the extent that it held that the documents are also not exempted personnel records. That aspect of the matter is remanded to the trial court for further proceedings during which the parties shall be given an adequate opportunity to marshal sufficient proofs as the nature of the contents of the particular documents and the specific educational requirements for employment as a detective in the Prosecutor’s Office to enable the court to apply the statute in accordance with the analysis the Court has set forth.

4. Police did not Require Warrant for Cell Phone Site. State v. Earls 420 NJ Super. 583 (App. Div. 2011)

The use of cell phone site information, obtained by the police without a warrant from a suspect's cell phone provider to determine his general location, does not violate the Fourth Amendment or its counterpart in the New Jersey Constitution because a person has no constitutionally protected right of privacy in his general location on roadways or other public places.

5. No Exception to Search Warrant for “Nuisance Abatement.” State v. Kaltner 420 NJ Super. 524 (App. Div. 2011)

There is no broad "nuisance abatement" exception under the community caretaking doctrine to the general rule that warrantless entries into private homes are presumptively unreasonable. In assessing the constitutional tolerance of entry into and search of a home in response to a noise complaint, we employ the "objectively reasonable test," balancing the nature of the intrusion necessary to handle the perceived threat to the community caretaking concern, the seriousness of the underlying harm to be averted, and the relative importance of the community caretaking concern.

The court holds the test was not met where police officers, responding in the early morning hours to a noise complaint, lawfully entered the home, but thereafter fanned out and searched the entire residence for someone in control, while other less intrusive options were available and no compelling need was presented.

6. Injured DWI driver not barred from Sueing Tavern for Dram Shop Violation. Voss v. Tranquilino 206 NJ 93 (2011)

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Lisa’s opinion.

The bar to litigation in N.J.S.A. 39:6A-4.5(b) can coexist with the Dram Shop Act’s deterrence and liability-imposing principles. An intoxicated person is deterred from driving drunk by losing the right to sue under Title 39 for insurance coverage for his injuries. On the other hand, permitting an injured drunk driver to file an action against a liquor establishment and its servers for serving a visibly intoxicated patron similarly advances the goal of deterring drunk driving. In allowing the latter form of action to proceed, rather than barring it by N.J.S.A. 39:6A-4.5(b), the application of established principles of comparative negligence will apportion properly the responsibility for damages as between dram shop parties and the injured driver.

7. DV Reversed where Court Permitted Testimony of Acts not set forth in Complaint. J.D. v. M.D.F. 207 NJ 458 (2011)

N.J.S.A. 2C:33-4 a. requires proof of a single communication that was made anonymously, at an extremely inconvenient hour, or in a coarse or offensive language, for the purpose to harass and in a manner likely to cause annoyance or alarm. Subsection c. requires proof of a course of alarming conduct or repeatedly committed acts with the purpose of alarming or seriously annoying the victim. Distinguishing between acts that constitute harassment for purposes of domestic violence and those that are ordinary domestic contretemps can be difficult. Such a determination may depend on the second inquiry required for complaints under the Act.

Due process requires that a party in a judicial hearing receive notice defining the issues and an opportunity to prepare. It forbids the trial court from converting a hearing on one act of domestic violence into a hearing on other acts that are not alleged in the complaint. Trial courts should use the allegations in the complaint to guide their questions, and avoid inducing plaintiffs to abandon that history in favor of new accusations.

Not all offensive or bothersome behavior constitutes harassment. Here, the trial court did not identify which subsection of the harassment statute it was applying. The evidence is not sufficient to support a finding under subsection a. because merely being outside of the home in the morning hours is not harassment and J.D. was unaware he was outside until R.T. alerted her, after which he beat a hasty retreat.

8. Defendant Should Assert Speedy Trial on De Novo Appeal. State v Misurella 421 NJ Super 538 (App. Div. 2011)

In this appeal from a DWI conviction, the State concedes that the right not to be subjected to unreasonable delay applies to an appeal, see State v. Le Furge, 222 N.J. Super. 92, 98 (App. Div.), certif. denied, 111 N.J. 568 (1988), and therefore, to a trial de novo in the Superior Court. The court applied the factors established in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and concluded that defendant's speedy trial right was not violated by a 798-day delay from the time he filed his notice of appeal in the Law Division under R. 3:23 until a trial de novo was actually held.

9. Text Messages between Parents Not Automatically Harassment. L.M.F. VS. J.A.F. 421 NJ Super 523 (App. Div. 2011)

In this appeal from a final domestic violence restraining order, the court applied the principles articulated by the Court in J.D. v. M.D.F., _____ N.J. _____ (2011), and concluded the trial court erred in finding the predicate offense of harassment. The parties are divorced parents. They used text messaging as the primary means of exchanging information about their two children. The domestic violence complaint alleged harassment based on defendant sending plaintiff eighteen text messages over a three-hour period. The content of the messages was not threatening or menacing in any way. The court also held there was insufficient evidence of a history of domestic violence to substantiate that a restraining order was necessary to prevent further abuse as required under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).

10. Personal Use Does not Permit Growing Medical Marijuana. State v. Wilson 421 NJ Super 301 (App. Div. 2011)

The principal issue in this is case is whether the personal use defense for manufacturing a controlled dangerous substance, N.J.S.A. 2C:35-2, applies to the growing of marijuana under N.J.S.A. 2C:35-5. After reviewing the relevant statutory language, as well as the purpose for the personal use exemption, we affirm the trial court's determination that there is no personal use exemption for growing marijuana.

11. Lab Report Not Admissible in DWI Case. Bullcoming v New Mexico 131 S. Ct. 2705 (2011)

The Sixth Amendment’s Confrontation Clause gives the accused “[in all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[testimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachusetts, 557 U. S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements.

The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

12. Laurick Motion Requires Prima facie Case for Relief. State v. Weil App. Div. 2011, A-5999-09T4, decided July 5, 2011, Unpublished.

In this appeal, defendant urged the court to revisit State v. Bringhurst, 401 N.J. Super. 421 (2008), and hold, in essence, that a defendant who files a Laurick post-conviction relief petition to obtain relief from enhanced penalties for driving while intoxicated based on a purported uncounseled prior DWI conviction is absolved from establishing a prima facie case for relief where her time delay has resulted in destruction of most of the records pertaining to the prior conviction. The court declines to do so and affirm defendant's conviction. Unpublished.

Editorial Assistance provided by Associate Editor Christian Vera and Matthew Sheptuck. Mr. Vera will be entering his 3^rd year at New York Law School. Mr. Sheptuck will be entering his 2^nd year at Georgetown University Law Center.