Top Criminal and Traffic Cases in NJ Municipal
Courts
BY KENNETH A. VERCAMMEN
1. Can Judge rely on suppression
motion testimony without defendant’s consent? No
Court cannot consider Sup Mt
testimony unless agreed by defendant
State v. Gibson 219 NJ 227 (2014)
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 Defendant can be entitled to Adjournment to Select Own Counsel. State v
Kates 216 NJ 393 (2014)
The judgment of the Appellate Division was
affirmed substantially for the reasons expressed in Judge Ostrer’s opinion
below. Deprivation of a defendant’s right to counsel of choice is found where,
as here, a trial court denies an adjournment without properly considering the
relevant factors or abuses its discretion in doing so.
The Appellate Division held Defendant Entitled to Adjournment to Select
Own Counsel. State v. Kates 426 NJ Super. 32 (App. Div. 2012)
The Appellate Division
concluded the trial court mistakenly exercised its discretion in denying
defendant a continuance to enable him to retain counsel of his choice, after he
learned on the eve of trial that the assistant deputy public defender who had
been representing him was about to deployed for active military service. Although the right to counsel of choice is
not absolute and may be balanced against the court's interest in managing its
calendar, the trial court failed to weigh the appropriate factors governing the
discretionary decision whether to grant the requested continuance. The availability of competent counsel not of
defendant's choice was an insufficient basis for denying the continuance. As deprivation of counsel of choice is a
structural error not subject to harmless error analysis, reversal of
defendant's conviction and a new trial is mandated.
3. Police can’t search just
because person is in no loitering area.
If no probable cause to arrest, search of
person is improper State v. Gibson 218 NJ 277 (2014)
There is
insufficient evidence in the record to support a finding that Officer Comegno
had probable cause to arrest Gibson for defiant trespass; therefore, the
subsequent search at the stationhouse was unconstitutional and the drug
evidence seized during the search must be suppressed.
Can the
homeowner aunt consent to let police search her nephew’s locked bedroom?
In this appeal, the Court considers the
validity of a warrantless search, which was consented to by the homeowner and
which occurred while the defendant was unlawfully detained.
4. If Defendant unlawfully detained,
third person’s consent to search no good. State v. Coles 218 NJ 322
(2014)
The
defendant was already in patrol car. His aunt let police into his locked
bedroom. Police find guns.
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.
In this appeal, the Court considered the
validity of a warrantless search of a house, specifically addressing whether
the knowing and voluntary consent by an occupant to search a premises is
constitutionally effective against a third party when an absent co-occupant has
objected to the search.
5. Co-Occupant consent to search valid. State v. Lamb 218 NJ 300
(2014)
After a shooting, mother could give
permission to search her home where son lived.
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.
6. Police needed warrant for blood taking after DWI event in 2010 case, no
good faith exception for police actions. State
v. Adkins 221 NJ 300 (2015)
HELD: McNeely’s
pronouncement on the Fourth Amendment’s
requirements must apply retroactively to cases that were in the pipeline when McNeely
was issued. Accordingly, the Appellate Division’s judgment is reversed. The
matter is remanded to allow the State and defendant the opportunity to
re-present their respective positions on exigency in a hearing on defendant’s
motion to suppress the admissibility of the blood test results. In that
hearing, potential dissipation of the evidence may be given substantial weight
as a factor to be considered in the totality of the circumstances. The
reviewing court must focus on the objective exigency of the circumstances faced
by the officers.
7. Municipal Court improperly admitted into
evidence Drinking Driving Questionnaire (DDQ) and Drinking Driving Report
(DDR). State v. Kuropchak 216 N.J.
360 (2015)
The municipal court’s admission of the Alcotest results without the
foundational documents required by State v. Chun, 194 N.J. 54
(2009) was error. Further, because the DDQ and DDR contained inadmissible
hearsay, which may have unduly influenced the municipal court’s credibility
findings, the matter is remanded for a new trial.
At
trial, Gary Aramini, an Alcotest expert, and Officer Serritella testified.
Aramini said that the tests were done improperly and that the State had failed
to enter the right simulator solution Certificate of Analysis and the most
recent Calibrating Unit New Standard Solution Report into evidence. He also
testified that Officer Brito failed to wait the required twenty minutes between
the second and third set of tests and that lip balm, blood in defendant’s
mouth, and a cell phone in the testing room may have tainted the results. The
court admitted the Drinking Driving Questionnaire (DDQ) and Drinking Driving
Report (DDR) into evidence as business records. The court also admitted Officer
Brito’s Alcotest Operator Certification, the Alcotest Calibration Certificate,
Part I -- Control Tests, the Alcotest Calibration Certificate, Part II -- Linearity
Tests, the Calibrating Unit New Standard Solution Report for solution control
lot number 08J060, and a Certificate of Analysis 0.10 Percent Breath Alcohol
Simulator Solution. This Certificate was admitted without objection; however,
the State concedes that it was for lot 09D065 rather than 08J060, which was the
simulator solution used in defendant’s control test.
HELD:
1. Appellate courts should defer to
trial courts’ credibility findings. Occasionally, however, a trial court’s
findings may be so clearly mistaken that the interests of justice demand
intervention and correction.
2.
A court may convict a defendant of DWI if she registers a blood alcohol level
of 0.08% or higher. This finding of guilt is subject to proof of the Alcotest’s
reliability. The operator must observe the subject for twenty minutes. After
twenty minutes, the Alcotest machine automatically conducts a blank air test to
determine if there are any chemical interferents in the room. Additionally, a
control test is conducted; if the Alcotest is working properly, that control
test will generate a result between 0.095 and 0.105. The State must also admit
certain foundational documents: (1) the most recent calibration report prior to
a defendant’s test, with part I--control tests, part II--linearity tests, and
the credentials of the coordinator who performed the calibration; (2) the most
recent new standard solution report prior to a defendant’s test; and (3) the
certificate of analysis of the 0.10 simulator solution used in a defendant’s
control tests to prove that the Alcotest was in working order.
3.
Here, the last semi-annual calibration was completed on January 12, 2010, with
simulator solution control lot 09D065. The solution control lot for the control
test performed prior to and following the three rounds of breath tests
performed on defendant was solution control lot 08J060. Under Chun, the State
was required to provide the Certificate of Analysis of the 0.10 Simulator
Solution used in defendant’s control test. The State, however, mistakenly
admitted the Certificate of Analysis for the semi-annual simulator solution
control lot 09D065 instead. Additionally, the most recent Calibrating Unit New
Standards Solution Report was not admitted into evidence during the State’s
case. Given that the foundational documents were not admitted into evidence,
the State presented no evidence as to the reliability or accuracy of the
Alcotest results and, therefore, defendant’s conviction of per se intoxication
was improper.
4.
As for defendant’s contention that the DDR and DDQ are hearsay not subject to
any exception, the Court observes that hearsay is inadmissible unless it falls
into one of certain recognized exceptions. To qualify as a business record, a
writing must: (1) be made in the regular course of business, (2) within a short
time of the events described in it, and (3) under circumstances that indicate
its trustworthiness. Foundational reports for breath testing, with certain
qualifications, are admissible under the business record exception to the
hearsay rule. Here, however, the DDR contains a narrative account of what the
officer saw at the scene and includes factual statements, observations, and the
officer’s opinions. Thus, the DDR contains inadmissible hearsay. Although the DDQ
also does not appear initially to constitute hearsay, it incorporates by
reference the DWI report in the “remarks” section and the DWI report, in turn,
contains several inadmissible opinions. The DDQ’s content thus also rises to
the level of inadmissible hearsay and must be excluded. Therefore, the DDR and
the DDQ were inadmissible hearsay outside the scope of the business records
exception.
5.
Here, the municipal court heard defendant’s testimony concerning the events on
the day of the incident, as well as the testimony of Officer Serritella. The
court found the Officer’s testimony more credible than defendant’s and
therefore found defendant guilty. The court’s credibility determinations,
however, were made after the DDR and the DDQ were admitted into evidence,
notwithstanding the impermissible hearsay statements they contained, and after
the Alcotest results were admitted into evidence despite the lack of requisite
foundational documents.
The cumulative effect of the inclusion of the DDR, the DDQ, and the
Alcotest results may have tilted the municipal court’s credibility findings.
Thus, the Court lacks sufficient confidence in the proceedings to sanction the
result reached and concludes that the interests of justice require a new trial.
It is only because of the unique confluence of events in this case – the
inappropriate admission of the Alcotest results as well as the DDR and DDQ –
that the Court remands for a new trial. Had the only flaw been the admission of
the DDR and DDQ, which contained hearsay, Officer Serritella’s testimony would
have alleviated much of that problem. Here, however, the cumulative effect of
the errors may have tilted the municipal court’s credibility findings.
The judgment of the Appellate Division was REVERSED
8. Suppression granted where stop
based on driver high beams on. State v. Witt 435 NJ Super. 608 (App.
Div. 2014)
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.
9. Prior DWI counts for
enhanced refusal. State v. Frye 217 NJ.
566 (2014)
The court reaffirms it’s 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.
10.
Supervising chemist can testify in vehicular homicide if they independently
verified correctness of blood test results State v. Michaels 219
NJ 1 (2014)
Defendant’s confrontation rights were not violated by
the admission of Dr. Barbieri’s report or his testimony regarding the blood
tests and his conclusions drawn therefrom. Dr. Barbieri was knowledgeable about
the testing process, independently verified the correctness of the
machine-tested processes and results, and formed an independent conclusion
about the results. Defendant’s opportunity to cross-examine Dr. Barbieri
satisfied her right to confrontation on the forensic evidence presented against
her.
11 Supervising chemist can testify in rape
case if they independently verified correctness of DNA results State v.
Roach 219
NJ 58 (2014)
Defendant’s
confrontation rights were not violated by the testimony of the analyst who
matched his DNA profile to the profile left at the scene by the perpetrator.
Defendant had the opportunity to confront the analyst who personally reviewed
and verified the correctness of the two DNA profiles that resulted in a highly
significant statistical match inculpating him as the perpetrator. In the
context of testing for the purpose of establishing DNA profiles.
12 Defendant has burden to timely to object to
testimony by pathologist who did not
perform the victim’s autopsy State v. Williams 219 NJ 89
(2014)
Defendant’s failure to object to the
admission of the testimony on confrontation grounds and his decision to
cross-examine the medical examiner constitute a waiver of his right of
confrontation.
13. Driver is not subject to criminal driving
while suspended if DWI suspension period expired prior to driving
State v Perry 439 NJ Super. 514 (App. Div. 2015)
N.J.S.A. 2C:40-26(a) and (b) make driving while suspended under specified
circumstances a fourth-degree crime, punishable by a mandatory minimum jail
term of 180 days, where the underlying suspension arose from driving while
intoxicated (DWI), N.J.S.A. 39:4-50, and/or refusal to submit to chemical
testing, N.J.S.A. 39:4-50.4(a). The court concluded in these appeals that
prosecutions under the statute can be brought only if the act of driving while
suspended occurs during the court-imposed term of suspension.
Note- Ken V successfully represented
four of the winning parties before the Law Division. The Appellate Division
affirmed the well-reasoned opinion of Hon. Douglas Wolfson JSC.
14. Driving While Suspended Conviction Upheld Although DWI Conviction
Vacated. State v. Sylvester 437 N.J. Super. 1 (App. Div. 2014)
N.J.S.A. 2C:40-26b makes it a
fourth degree offense to drive while one's license is suspended or revoked for
a second or subsequent conviction for driving a car while under the influence
of alcohol (DWI). In a bench trial before the Law Division on this charge,
defendant argued that her second DWI conviction had been voided ab initio by
the municipal court when it granted her PCR petition two months after she was
indicted for one count of violating N.J.S.A. 2C:40-26b. Thus, defendant argues
the State cannot rely on this vacated second DWI conviction to meet its burden
of proof under N.J.S.A. 2C:40-26b. The trial court rejected this argument. The
Appellate Division affirmed.
It is undisputed that at the time
defendant committed this offense, she was aware her driver's license had been
revoked by a presumptively valid second conviction for DWI. The court relied on
State v. Gandhi, 201 N.J. 161, 190 (2010) to hold that a second DWI conviction
vacated through PCR granted by a court after a defendant engages in conduct
prohibited in N.J.S.A. 2C:40-26b, cannot be applied retroactively to bar a
conviction under this statute.
15. 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).
16 DWI offenses separated by more than ten
years are eligible for “step-down” provision. State v. Revie 220 NJ 126 (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.
17. 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).
18 No home release or wristlet if mandatory 180
jail
State v Harris 439 NJ
Super. 150
(App. Div. 2015)
Following the recent opinion in State v. French, 437 N.J. Super.
333 (App. Div. 2014), the court hold that a defendant convicted of violating
either N.J.S.A. 2C:40-26a or N.J.S.A. 2C:40-26b must be sentenced to at least
180 days in jail without parole. French held that a sentence to an in-patient
drug rehabilitation program in lieu of jail was an illegal sentence under
section 26b. The court conclude that, under section 26a or 26b, a sentence to
any other non-custodial alternative program, such as a home detention program
(HEDS) or a community service program (CSLS), is likewise illegal.
19 Failure to read refusal warnings not a defense to DWI State v Peralta 437 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.
20
DWI statute and Alcotest not unconstitutional. State
v. Campbell 436 N.J. Super. 264 (App. Div. 2014)
Defendant's prosecution was based
upon an Alcotest reading of his blood alcohol content ("BAC") above
the per se level of .08 prohibited by N.J.S.A. 39:4-50(a). He argues that case
law authorizing the admission of Alcotest BAC results when the prerequisites
for such admissibility are shown by "clear-and-convincing" proof,
coupled with the statute's conclusively incriminating treatment of a BAC at or
above .08, improperly combine to relieve the State of its constitutional burden
of proving a driver's guilt by the more rigorous standard of proof "beyond
a reasonable doubt."
The Court rejects defendant's claim
of unconstitutionality. The argument fails to distinguish the State's threshold
burden of establishing the Alcotest's evidential admissibility from the State's
ultimate burden at trail of establishing defendant's guilt of a per se offense
beyond a reasonable doubt. Even if a pretrial motion to suppress the BAC
results has been denied, a defendant can still present competing evidence or
arguments at trial to persuade the court that the testing procedures were
flawed and that his guilt has not been proven by the more stringent reasonable
doubt standard.
21 Court permits police to ignore guidelines requiring
Alcohol influence report be given to DWI suspects
State v Sorensen __ NJ Super. __ (App. Div. 2015) A-3797-13T4
After the Law Division suppressed defendant's blood alcohol content
(BAC) results, it sentenced her on her guilty plea to driving under the
influence. Nonetheless, the State's appeal of the suppression was not barred by
double jeopardy because defendant had entered a conditional plea to, and been
sentenced for, the per se violation in Municipal Court.
The Law Division suppressed the BAC results because
the Alcotest operator did not give a copy of the Alcohol Influence Report (AIR)
to the arrestee in the police station. Although State v. Chun, 194 N.J. 54, 82
(2008), said the operator "must" do so, that comment about
recommended Alcotest procedure did not override the statutory standard only
requiring the police to give a copy of the breath test results upon request. N.J.S.A.
39:4-50.2(b). In any event, the timing of copy delivery does not affect the
validity of the test results. Moreover, police must advise arrestees of their
ability to request a copy and to get an independent test. Therefore,
suppression is not warranted in the absence of prejudice. Furthermore, a
suppression remedy should not be imposed retroactively.
Judge Sabatino concurs in the result. Given the time-sensitive dissipation
of alcohol in the bloodstream, he believes Chun sensibly requires the operator
to provide a copy of the AIR contemporaneously, consistent with the policies of
the Attorney General and the State Police, and that the statute does not
foreclose affording such added procedural protection to tested drivers.
He agrees that suppression in this case and retroactive relief are not
warranted.
22 Ten year step down in DWI also applies to refusal. State v Taylor
440 NJ Super. 387 (App. Div. 2015)
In 2013,
defendant Thomas Taylor entered a conditional guilty plea to refusal to submit
to a breath test, N.J.S.A. 39:4-50.2, reserving the right "to appeal []
any and all issues, including sentencing." Although defendant had no prior
convictions for refusal, he had two prior convictions for driving while
intoxicated (DWI), N.J.S.A. 39-4-50, in 1985 and 1996. The trial court
sentenced defendant as a "third offender," using his DWI convictions
to enhance the penalty for his refusal conviction.
On appeal, defendant argues that the "step-down" provision of the
DWI statute, N.J.S.A. 39:4-50(a)(3), should apply so as to reduce his refusal
conviction from a third to a second offense for sentencing purposes since it
followed more than ten years after his second DWI conviction. The court agreed
and held that where the penalty attendant to a driver's refusal conviction is
enhanced by a prior conviction under the DWI statute, fairness dictates that it
be similarly reduced by the sentencing leniency accorded a driver under the
"step-down" provision of that statute when there is a hiatus of ten
years or more between offenses.
23 Police did not have reason to order passenger out
of car. State v Bacome 440 NJ Super. 228 (App.
Div. 2015)
Based on speculation that defendant and a passenger in
his vehicle were involved in illegal drug activity, police officers attempted
to follow but lost sight of the vehicle in or near Newark and waited in
Woodbridge for its return. Once the vehicle returned, the officers stopped it,
ostensibly because the passenger was not wearing his seatbelt. On approaching,
an officer, who did not testify, observed defendant reach under his seat. Both
driver and passenger were then ordered out of the vehicle; after the passenger
exited, an officer was able to observe in plain view materials that suggested
drug usage. Based on that observation, a warrantless search of the vehicle
ensued, and illegal drugs were found.
Because
defendant's mere entry into and departure from Newark did not permit a
reasonable suspicion of illegal drug activity and because the State had failed
to present facts "that would create in a police officer a heightened
awareness of danger" if the passenger were allowed to remain in the
vehicle, State v. Smith, 134 N.J. 599, 618 (1994), the court
found no sufficient ground for the ordering of the passenger out of the vehicle
and reversed the denial of the suppression motion.
24 Jail Alternative allowed in 3-40(e) and 6B:2. State v. Toussaint 440
N.J. Super. 526 (App.Div. 2015)
When a defendant is convicted under N.J.S.A.
39:3-40(e) (being involved in an accident that causes injury to another, while
driving with a suspended license), or N.J.S.A. 39:6B-2 (driving without
insurance), the court has discretion to permit the defendant to serve the
sentence in an electronic monitoring program instead of in the county jail. In
construing those provisions, we distinguished State v. French,
437 N.J. Super. 333, 335 (App. Div. 2014), certif. denied, 200 N.J. 575 (2015),
which held that N.J.S.A. 2C:40-26(c) did not permit sentencing alternatives for
driving during a second or subsequent license suspension imposed for DWI.
25 OPRA can require town and police to provide
video of security camera. Gilleran v. Twp. of Bloomfield 440 N.J. Super.
490 (App.Div. 2015)
The Open Public Records Act (OPRA) does not
include a blanket exemption for video recordings made from an outdoor security
camera. To justify denying an OPRA request pursuant to the definitional
exclusions contained in N.J.S.A. 47:1A-1.1 for "security
information," "procedures," "measures," and
"techniques," the government agency must make a specific showing of
why disclosure would jeopardize the security of the facility or put the safety
of persons or property at risk.
Because we agree with the
trial court that the township did not make a sufficiently specific showing for
an exemption, we need not decide whether N.J.S.A. 47:1A-5(g) requires a
government agency to review requested recordings and redact only actual
confidential information, as argued by plaintiff and the ACLU. Such a
requirement of review and redaction seems
impractical and virtually impossible to implement when the request is
for lengthy surveillance recordings, such as the fourteen hours of recordings
requested here by plaintiff.
26 Bias
statute requires proof of defendant intended bias, not victim perception and
statute unconstitutional. State v. Pomianek 221 N.J. 66 (N.J. 2015).
Subsection
(a)(3) of the bias-intimidation statute, N.J.S.A. 2C:16-1, fails to give
adequate notice of conduct that it proscribes, is unconstitutionally vague, and
violates the Due Process Clause of the Fourteenth Amendment.
27 Police
should not have ordered driver out of car on traffic stop. State v. Keaton ___NJ ___
(2015) (A-92-13)
The law enforcement officer was required to provide
defendant with the opportunity to present his credentials before entering the
vehicle. If after giving a defendant that opportunity, he or she is unable or
unwilling to produce the registration or insurance information, only then may
an officer conduct a search for those credentials. Here, because defendant was
never provided with such an opportunity, the seizure of the contraband was
unlawful under the plain view doctrine. Further, the community-caretaking
doctrine was inapplicable because there was no need for an immediate
warrantless search to preserve life or property.
28. Court should have adjourned case for defendant to hire own attorney. State v.
Martinez 440 NJ Super. 537 (App.
Div. 2015)
The court examined the tension between a trial court's discretionary
"authority to control its own calendar" by denying an adjournment
request and the need to safeguard "a defendant's Sixth Amendment right to
a fair opportunity to secure counsel of his own choice" in light of State v. Miller, 216 N.J. 40, 62, 65
(2013). Guided by the framework for review set forth in State v. Hayes, 205 N.J. 522 (2011), the court
concluded the denial of defendant's request to adjourn trial, without weighing
the facts presented supporting the requested adjournment, reflects an arbitrary
exaltation of expedience in case processing at the expense of defendant's right
to counsel. Accordingly, the court vacated the judgment of conviction and
remands the matter for a new trial.
29 Accident with
unconscious driver was exigency for police to take blood. State v. Jones ___NJ Super. ___ (App. Div. 2015) A-0793-13T1
In Missouri v. McNeely, 133 S. Ct. 1552 (2013),
the United States Supreme Court considered whether "the natural
metabolization of alcohol in the bloodstream presents a per se exigency that
justifies an exception to the Fourth Amendment's warrant requirement for
nonconsensual blood testing in all drunk-driving cases." Id. 133 S. Ct. at
1556, (emphasis added). Concluding that fact alone did not present a "per
se exigency," the Supreme Court held, "consistent with general Fourth
Amendment principles, that exigency in this context must be determined case by
case based on the totality of the circumstances." Ibid. This matter was
summarily remanded to the court by the Supreme Court for reconsideration in
light of the Court's decision in State v.
Adkins, ___ N.J. ___ (2015), holding that the totality of the circumstances
analysis described in McNeely should be given pipeline retroactivity.
This was not a routine DWI case in which the
dissipation of blood alcohol was the sole basis for determining an exigency
existed. To the contrary, defendant caused a multiple vehicle accident at a
busy intersection and crashed into a building, raising concern the building
would collapse. Numerous police, firefighters and emergency medical services
personnel responded to the scene, where the investigation took hours. It took
one-half hour to extricate defendant, who was unconscious, from her badly
damaged vehicle. Both she and a passenger in another car had to be transported
to the hospital.
Viewing the totality of the circumstances, the court
is satisfied that an objective exigency existed and that the officer
"might reasonably have believed that he was confronted with an emergency,
in which the delay necessary to obtain a warrant, under the circumstances,
threatened 'the destruction of evidence[.]'" Schmerber, supra, 86 S. Ct. at 1835. The court finds no reason to
disturb our prior decision reversing the order that suppressed the results of
the blood sample analysis.
30. Defendant asking to speak with uncle counts as
Miranda right to remain silent
State v. Maltese 221 NJ 611
(2015)
Because defendant’s statement to his uncle occurred
after officers violated his Fifth Amendment right to remain silent, that
statement is inadmissible. Defendant’s subsequent statement to police was fruit
of the unconstitutionally obtained statement to his uncle and must also be
suppressed. Thus, defendant’s convictions for manslaughter and murder are
reversed. His other convictions are affirmed because they are supported by
evidence independent of the suppressed statements. On remand, the trial court
shall conduct a pretrial hearing to determine whether the physical evidence
obtained as a result of defendant’s suppressed statements is admissible under
the inevitable discovery exception to the exclusionary rule.
31 Police have pc if odor of pot State v Myers __ NJ Super. __ (App. Div. 2015)
A-4295-12T4
The odor of marijuana has long been held to provide
probable cause of the commission of a marijuana offense. Under the New Jersey
Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 to -16,
registered qualifying patients receive registry identification cards, and their
medical use of marijuana as authorized by the CUMMA is exempt from criminal
liability under N.J.S.A. 2C:35-18. Where, as here, there is no evidence that
the person suspected of possessing or using marijuana has a registry
identification card, the odor of marijuana still provides probable cause of the
commission of a marijuana offense. Here, the odor of burnt marijuana emanating
from defendant's car gave the officer probable cause to arrest him for a
marijuana offense committed in the officer's presence
__ Top new Law: New law
finally establishes a
Conditional Dismissal for 1st time offenders in Municipal Court. Ken Vercammen testified in favor of the
passage before the Assembly Judiciary Committee.
Governor Chris Christie signed
into law legislation co-sponsored by Senator Christopher “Kip” Bateman
(R-Hunterdon, Mercer, Middlesex and Somerset) to provide a Conditional
Dismissal program in Municipal Court for certain first-time offenders. The law
took affect in January 2014. However, the law requires a defendant to plead
guilty as a part of the program.
“This initiative will give a
broader range of first-time offenders who have committed a minor offense an
opportunity to turn their lives around,” Bateman said. “The program will help
foster participants’ rehabilitation and future success by giving them
appropriate penalties without having the offense be a part of their permanent
criminal record.” This law also helps Police and Prosecutors since it requires
a guilty plea, thus reducing the need for trials and officer testimony.
Under prior law, the only
offenses eligible for a conditional discharge were certain drug-related
offenses. Bateman’s S-2588 allows discharge for many non-drug offenses, such as
disorderly person’s offenses, which have not been able to participate in
similar programs before.
Under this law, conditional
dismissal is not available to any person who has previously participated in a
conditional discharge, conditional dismissal, or supervisory treatment program
such as PTI. In addition, a person is not eligible for conditional dismissal if
the offense for which the person is charged involves certain offenses.
After taking into consideration the
eligibility criteria, the defendant’s criminal history and the prosecutor’s
recommendation, the court may, approve the defendant’s participation in the
conditional dismissal program and place the defendant under a probation
monitoring status for a period of one year.
This law establishes a conditional
dismissal program in municipal court similar to the existing supervisory
treatment programs for pre-trial intervention and conditional discharge.
FINGERPRINTING REQUIREMENT.
To allow sufficient time for verification of the defendant’s criminal history
by the prosecutor and as a condition of the application, the defendant will be
required to submit to the fingerprint identification procedures as provided in
R.S.53:1-15 before making an application to the court.
A person who is charged with a
disorderly persons or petty disorderly persons offense involving drugs or drug
paraphernalia may apply for a conditional discharge in accordance with
N.J.S.2C:36A-1.
In addition to these eligibility criteria,
the court considering the application must also consider the following factors:
the nature and circumstances of the offense; the facts surrounding the
commission of the offense; the motivation, age, character and attitude of the
defendant; the desire of the complainant or victim to forego prosecution; the
needs and interests of the victim and the community; the extent to which the
defendant’s offense constitutes part of a continuing pattern of anti-social
behavior; whether the offense is of an assaultive or violent nature, either in
the act itself or in the possible injurious consequences of such behavior;
whether the applicant's participation will adversely affect the prosecution of
codefendants; whether diversion of the defendant from prosecution is consistent
with the public interest; and any other factors deemed relevant by the court.
PROGRAM REQUIREMENTS. After taking
into consideration the eligibility criteria, the defendant’s criminal history
and the prosecutor’s recommendation, the court may approve the defendant’s
participation in the conditional dismissal program and
place the defendant under a probation monitoring status for a period of
one year. The court may also impose financial obligations and other terms and
conditions in accordance with the law. The law permits the
defendant to apply to the court for an extension of the term of conditional
dismissal to allow sufficient time to pay financial obligations imposed by the
court. In addition, a judge could extend the term for good cause.
If a defendant who is participating in
conditional dismissal is convicted of any offense or crime under any law
of the United States, this State or any other state, or otherwise fails to
comply with the terms and conditions imposed by the court, the court can enter
a judgment of conviction and impose a fine, penalty, or other assessment in
accordance with the defendant’s prior plea of guilty or prior finding of guilt.
If, at the end of the term, the defendant
has not been convicted of any subsequent offense or crime under any law
of the United States, this State or any other state, and has complied with any
other terms and conditions imposed by the court, the court may terminate the
probation monitoring and dismiss the proceedings against the defendant.
The law provides that a conditional
dismissal of a petty disorderly persons or disorderly persons offense granted
pursuant to the program will not be deemed a conviction for purposes of
disqualifications or disabilities, but shall be reported to the State Bureau of
Identification criminal history record information files for purposes of
determining future eligibility or exclusion from court diversion
programs. A conditional dismissal granted will not be deemed a conviction
for the purposes of determining whether a second or subsequent offense has
occurred under any law of this State.
CONDITIONAL DISMISSAL APPLICATION FEE AND
ASSESSMENT. A person applying for admission to the conditional dismissal
program will pay to the court an application fee of $75.
The law allows the defendant to apply for
a waiver of the fee by reason of poverty. The court may also permit the
defendant to pay the conditional dismissal fee and other assessments in
installments or order other alternatives pursuant to section 1 of P.L.2009,
c.317 (C.2B:12-23.1).
Under the current provisions of the
conditional discharge statute, a person is not eligible for conditional
discharge if that person has committed a disorderly persons or petty disorderly
persons drug offense under any law of the United States, this State or any
other state. The law amends section a. of N.J.S.2C:36A-1 to also provide that a
person who has participated in any supervisory treatment program or the
conditional dismissal program established under the law will not be eligible
for participation in the conditional discharge program.
SUPERVISORY TREATMENT
(PTI). Similar to the conditional discharge statute, the PTI statute,
N.J.S.2C:43-12, provides that the $75 fee charged for the program is used to
defray the costs of juror compensation. Since these monies are no longer used
to defray the costs of juror compensation, the law updates this section of law
accordingly.
You can only
receive one PTI, Conditional Dismissal or Conditional Discharge in your life.
Some attorneys and clients want to “save” PTI for use later and not take a
Conditional Dismissal for a minor criminal charge.
