Summer Municipal Court Law Review 2014
1. If Defendant detained, third person’s consent to search no good. State v. Coles 217 NJ 467 (2014) A-1512
Under the circumstances presented here, a third party’s consent to conduct a warrantless search of a defendant’s living space is insufficient to justify the search when the defendant is unlawfully detained by police.
2. Co-Occupant consent to search valid. State v. Lamb 217 NJ 442 (2014) A-3712
Under the circumstances of this appeal, an occupant’s knowing and voluntary consent to search a premises is constitutionally effective against a third party and is not nullified by the prior objections of an absent co-occupant whose absence is not the result of a police effort to avoid an objection.
3. Trial Court to examine if confession based on false promise of leniency. State v. Hreha 217 NJ 368 (2014) A11511
The record lacks sufficient credible evidence to support the trial court’s finding that defendant was not offered leniency in exchange for his confession. The matter is remanded for a new Miranda hearing to allow a trial court to make fresh credibility and factual findings, after which the trial court may decide what weight, if any, to assign to any promises of leniency when it applies the totality-of-the-circumstances test.
4. PTI not available after guilty verdict. State v. Bell 217 NJ 336 (2014) A2112
PTI is a pretrial diversionary program that is not available to a defendant once the charges have been tried before a judge or a jury and a guilty verdict has been returned.
5. Suppression granted where stop based on driver high beams on. State v. Witt 435 NJ Super. 608 (App. Div. 2014) A 0866-13T2
The court granted leave to appeal an order granting defendant's motion to suppress evidence seized during a warrantless search of his vehicle. The court affirmed not only because it is bound by State v. Pena-Flores, 198 N.J. 6 (2009), and its many antecedents, and not only because no exigencies for the search were revealed during the suppression hearing, but also because there was no legitimate basis for the motor vehicle stop that preceded the search. In this last regard, the record demonstrated that the police officer stopped defendant's vehicle because defendant did not dim his high beams as he drove by the officer's parked patrol vehicle. Because the patrol vehicle was not an "oncoming vehicle," and because there were no other "oncoming vehicles" on the road at the time, the police officer did not have objectively reasonable grounds to believe defendant had violated the high-beam statute, N.J.S.A. 39:3-60, in making the vehicle stop.
6. Search no good where search away from location of search warrant. State v. Bivins 435 NJ Super. 519 (App. Div. 2014) A1577-12T2
In this appeal, the court considers whether the scope of the permissible area and persons to be searched, pursuant to a search warrant, extends to the location where defendant was found, seated in a vehicle, parked on the street, five or six houses away from the premises where a search warrant was being executed. The motion judge found there was probable cause to search defendant based upon the search warrant. The court reverses the holding pursuant to Bailey v. United States, the search and seizure was beyond the spatial limits of the search warrant.
7. PCR Hearing granted where defendant has colorable claim of innocence. State v. O’Donnell 435 NJ Super. 351 (App. Div. 2014) A1889-12T2
Defendant pleaded guilty to the murder of her six-year-old son. She received a thirty-year sentence with a thirty-year MPI. She alleges her attorney was ineffective by failing to diligently pursue a diminished capacity defense and failing to adequately consult with her before urging her to plead guilty. The court reverses the trial court's denial of PCR and remand for an evidentiary hearing.
The court directs the court to separately apply the four-factor test governing plea withdrawal motions under State v. Slater, 198 N.J. 145 (2009), and the two-prong test governing PCR petitions under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The court compares and contrasts the two standards. Both apply to defendant's application for relief. Although the standards sometimes overlap, they do not always lead to the same results. The court instructs the trial court not to conflate the two. The court also concludes that the court mistakenly set too high a threshold for satisfying the "colorable claim of innocence" factor under Slater.
- 8. Prior DWI counts for enhanced refusal. State v. Frye 217 NJ. 566 (2014) A-30-12
The court reaffirms its holding in In re Bergwall, 85 N.J. 382 (1981). A prior DWI conviction may enhance the sentence for a subsequent refusal conviction under the refusal statute. N.J.S.A. 39:4-50.4a.
- 9. No insurance Law 39:6 B-2 amended to provide discretion for no DL suspension
Under the prior law, a person who commits a first offense of driving without insurance is subject to a fine of between $300 and $1,000, a period of community service to be determined by the court, and loss of driver’s license for one year from the date of conviction. Under this amended law, imposition of a driver’s license suspension for such a first offense is to be within the discretion of the court, and the period of any such suspension could be from two months to one year from the date of conviction.
The relevant portion of 39:6b-2 reads:
….The court also shall suspend the person's right to operate a motor vehicle over the highways of this State for a period of one year from the date of conviction ; provided, however, the period of license suspension may be reduced or eliminated if the person provides the court with satisfactory proof of motor vehicle liability insurance at the time of the hearing.
Handling Drug, DWI & Serious Motor Vehicle Cases book and seminar CD
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Editorial Assistance provided by Associate Editor Jillian Spielman, 3L, New York Law School
INDEX
1. If Defendant detained, third person’s consent to search no good. State v. Coles
2. Co-Occupant consent to search valid. State v. Lamb
3. Trial Court to examine if confession based on false promise of leniency. State v. Hreha
4. PTI not available after guilty verdict. State v. Bell
5. Suppression based on driver high beaming to warn of police car. State v. Witt
6. Search no good where search away from location of search warrant. State v. Bivins
7. PCR Hearing granted where defendant has colorable claim of innocence. State v. O’Donnell
8. Prior DWI counts for enhanced refusal. State v. Roger Paul Frye
9. No insurance law 39:6 R2 amended to provide discretion for no DL suspension
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Attorneys, Professionals and their staff invited to Happy Hour & Networking Social
Friday, July 18, 2014
5:00PM - 7:00PM
at Bar Anticipation
703 16th Avenue
Lake Como/ Belmar, NJ 07719
Free !
5-7PM Hot & Cold Buffet
The reduced price Happy Hour is 6-7PM with $1 House Drink, Bud/BudLt draft & House Wine Special
Please bring a canned food donation for the St. James Food Bank Hands of Hope, continuing providing food and help to individuals in need.
Email Ken Vercammen's Law Office so we can put your name on the VIP list for wristbands. VercammenLaw@Njlaws.com
