Winter 2015 Municipal Court Law Review
1 Court cannot consider Sup Mt testimony unless agreed by defendant State v. Gibson 219 NJ 227 (2014)
Due to the fundamental differences between a pre-trial motion to suppress and a trial on the merits, the best practice is to conduct two separate proceedings. However, the motion record may be incorporated into the trial record if both parties consent and counsel are given wide latitude in cross-examination. Where the evidence from a pre-trial hearing is improperly admitted at the trial on the merits, the correct remedy is remand for a new trial.
2. If mandatory 180 days without parole, can’t get credit for inpatient State v. French 437 NJ Super. 333 (App. Div 2014)
A sentence of 90 days in jail followed by 90 days in an inpatient drug rehabilitation program does not satisfy the "fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole" mandated for the fourth-degree crime of operating a motor vehicle during a period of license suspension for multiple convictions of driving while intoxicated. N.J.S.A. 2C:40-26(b).
3. No jail for careless driving unless aggravating factors found
State v Palma 219 NJ Super. 584 (App. Div 2014)
The factors outlined by this Court in State v. Moran, 202 N.J. 311 (2010), should be followed by judges in the municipal court and Law Division when imposing sentences for careless driving.
4. Failure to read refusal warnings not a defense to DWI State v Peralta 47 NJ Super. 570 (App.Div 2014)
In this appeal, defendant argued the police failure to read to him the standard statement referred to in N.J.S.A. 39:4 50.2(e) – which, in its current iteration, largely but not entirely advises of the consequences of refusing to provide a breath sample – requires reversal of his DWI conviction based solely on an Alcotest reading. The court held this alleged failure was not fatal to the DWI conviction because defendant did not refuse to provide a breath sample.
5. DWI offenses separated by more than ten years are eligible for “step-down” provision. State v. Revie __ NJ __ (2014) A-31-13
The N.J.S.A. 39:4-50(a)(3) “step-down” provision can benefit a DWI offender more than once, provided that the defendant’s most recent and current DWI offenses are separated by more than ten years. In this case, defendant should be sentenced as a second DWI offender with respect to any term of incarceration imposed, and as a third DWI offender with respect to the applicable administrative penalties.
6. Judge must recuse where a reasonable person would harbor doubts about the fairness of the proceedings. State v Dalal 438 NJ Super. 156 (App. Div.2014)
The court granted leave to examine an interlocutory order, which denied defendant's motion to recuse the Bergen County judiciary from presiding over a prosecution that included a charge of conspiring to murder a Bergen County assistant prosecutor. The issue reached an acute stage when the State informed it would offer evidence at trial that defendant threatened the lives of two Bergen judges. Even though the court acknowledged the trial judge, who was not one of the threatened judges, appeared able to fairly and impartially preside, the court held that defendant is entitled to the relief sought because, in the final analysis, "justice must satisfy the appearance of justice" and a reasonable person would harbor doubts about the fairness of the proceedings.
7. DL suspension should not be stayed after conviction unless findings of fact. State v Robertson 438 N.J.Super. 47 (App. Div. 2014)
In this appeal from a DWI conviction, the court rejects defendant's argument that the Alcotest results should have been excluded because he was denied discovery of certain repair records, which were created by the Alcotest's manufacturer, and certain downloaded data, which the State routinely erases. The court concludes the records were not discoverable under Rule 7:7-7, nor did they constitute Brady material.
The court also addressed the unexplained decisions of both the municipal court and the Law Division to stay defendant's license suspension pending appeal. The court instructs trial courts that any stay of a license suspension after a DWI conviction should be supported by adequate findings of fact and conclusions of law, and should comply with standards governing the grant of a stay pending appeal set forth in Garden State Equality v. Doe, 216 N.J. 314, 320 (2013).
8. Criminal charge where later guilty plea to civil violation can be expunged. In the Matter of the Expungement Application of P.H. 436 N.J. Super. 427 (App. Div. 2014)
The court considered the application of the expungement statute, N.J.S.A. 2C:52-1 to -32, where petitioner was charged with a fourth degree offense but ultimately agreed to a violation of a statute for which he paid a civil penalty. Petitioner requested expungement of all criminal records, which was granted by the trial judge; records of the civil violation and the file of the NJSPCA were not subject to expungement.
The State appealed, advancing numerous reasons for reversal, primarily arguing the final disposition controls whether expungement relief is available. Maintaining the initial criminal charges were part of the same file that was disposed of through a plea agreement-allowing defendant to pay a civil penalty, the State asserts expungement cannot be permitted. The court disagreed and concluded petitioner was not convicted and the final disposition was not a plea agreement. Rather, the criminal charges were dismissed. Accordingly, expungement was permitted under N.J.S.A. 2C:52-6(a).
9. Expungement of Single Judgment Encompassing Multiple Crimes Denied. I/M/O The Expungement of the Criminal Records of G.P.B. 436 NJ Super. 48 (App. Div. 2014)
The court held that expungement is not permitted by N.J.S.A. 2C:52-2(a), which allows expungement for a person convicted of "a crime," where the petitioner had pleaded guilty to multiple briberies over the course of two days even though those crimes had a single purpose and even though they were memorialized in a single judgment of a conviction.
10 Hearsay at Rule 104 hearing not admission at trial for confession to driving State v. Harvey (App. Div. Decided September 9, 2014) A-2921-12T1 Unreported
Following trial de novo on the record of the Northfield Municipal Court, the Law Division judge found defendant guilty of driving while intoxicated and sentenced him as a third-time offender. The appellate panel finds that the procedure employed in the Law Division violated defendant's rights to procedural due process and fundamental fairness. There was no basis for a 104 hearing on this record. Defendant was not seeking to suppress his statements to the arresting officer, nor did he assert that the officer lacked probable cause to arrest him for driving under the influence. The officer testified at the 104 hearing that he was dispatched to a doctor's office in response to a call stating that defendant appeared intoxicated and was "gonna drive home." Defendant made no objection to that testimony, which was not relevant to the issue before the municipal court, namely, whether defendant drank en route to the doctor's office or after he parked the pick-up truck in the parking lot. That testimony, however, became relevant when the State advanced its alternate theory of operation before the Law Division and the judge relied on it in finding that the State proved defendant's intent to drive away from the doctor's office. The testimony was hearsay. The Law Division judge rejected defendant's attempt to counter those proofs with the truncated testimony in the municipal court that he had arranged for someone else to drive him home and his offer to have that person testify in the Law Division. Because the Law Division determined that there was insufficient evidence to convict defendant under the only theory properly before it, namely that defendant drank en route to his doctor's appointment, that ruling was an adjudication on the merits of the charge entitling defendant to an acquittal. The panel reverses defendant's conviction and remands to the Law Division for entry of a judgment of acquittal. Source Daily Briefing - 9/10/2014
11. Calendar of events
Friday, March 13, 2015
Happy Hour & Networking Social
5:00PM - 7:00PM
703 16th Avenue
Lake Como/ Belmar, NJ 07719
Municipal Court College March 31 5:30-9 Law Center
May 7 Nuts and Bolts of Elder Law ICLE 7 5-9pm Law Center
Handling Drug DWI and Serious Motor Vehicle Cases in Municipal Court seminar
Photo Menzel, Murgado, Brigiani, Reinitz
1 Court cannot consider Sup Mt testimony unless agreed by defendant State v. Gibson
2. If mandatory 180 days without parole, can’t get credit for inpatient State v. French
3. No jail for careless driving unless aggravating factors found
State v Palma
4. Failure to read refusal warnings not a defense to DWI State v Peralta
5. DWI offenses separated by more than ten years are eligible for “step-down” provision. State v. Revie
6. Judge must recuse where a reasonable person would harbor doubts about the fairness of the proceedings. State v Dalal
7. DL suspension should not be stayed after conviction unless findings of fact. State v Robertson
8. Criminal charge where later guilty plea to civil violation can be expunged. In the Matter of the Expungement Application of P.H.
9. Expungement of Single Judgment Encompassing Multiple Crimes Denied. I/M/O The Expungement of the Criminal Records of G.P.B.
10 Hearsay at Rule 104 hearing not admission at trial for confession to driving State v. Harvey
11. Calendar of events
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.
If the law firm or municipality no longer wishes to subscribe, please fax or mail us.
(or staple business card here)
We also need your email address ________________________
Kenneth A. Vercammen, Esq.,
Editor- NJ Municipal Court Law Review
2053 Woodbridge Ave.
Edison, NJ 08817
Tax ID # available