STATE OF NEW JERSEY VS. JAMES J. MAUTI A-3551-12T3

STATE OF NEW JERSEY VS. JAMES J. MAUTI 

A-3551-12T3 

A jury found defendant guilty of third degree aggravated criminal sexual contact and fourth degree criminal sexual contact and not guilty of first degree aggravated sexual assault and second degree sexual assault. Defendant is a physician. The complaining witness is his sister-in-law. We reverse and remand for a new trial. 

We hold the trial judge should have excluded a towel containing defendant's semen based on the absence of competent evidence linking it to the alleged sexual assault. The towel also constituted inadmissible hearsay by conduct under N.J.R.E. 801(a)(2). 

The judge also abused his discretion by permitting the State to call five fresh-complaint witnesses and thereafter deciding not to instruct the jury on fresh-complaint testimony. Defense counsel’s acquiescence to the trial judge’s decision not to charge the jury on fresh-complaint did not constitute invited error. 

Finally, we conclude that the trial court properly admitted a redacted version of a letter sent by defense counsel to the prosecutor as an adopted admission under N.J.R.E. 803(b)(3). Under these circumstances, we reject defendant’s argument that defense counsel’s letter falls within the ambit of "plea negotiations," as that term is used in N.J.R.E. 410. Our analysis is guided by the federal courts’ review of Fed. R. Evid. 410, the source rule of N.J.R.E. 410. 

As a matter of first impression in this State, we adopt the analytical approach used by the Fifth Circuit Court of Appeals in United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978) to determine when interactions between the State’s representative and defense counsel constitute protected “plea negotiations” under N.J.R.E. 410. This approach requires a trial judge to determine: (1) whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion; and (2) whether the accused's expectation was reasonable given the totality of the objective circumstances. 

The State bears the burden of proof. Because this two-tiered approach requires a fact-sensitive analysis, the trial judge should conduct an N.J.R.E. 104 hearing to resolve any disputed facts. 

Winter 2017 Municipal Court Law Review

Winter 2017 Municipal Court Law Review  

Major cases affecting Municipal Court and criminal cases

 By Kenneth Vercammen, Esq.

1. NJ Supreme Court makes “plain view” car searches easier

State v. Gonzales __ NJ __ (2016)

    The Court now excises the inadvertence requirement from the plain-view doctrine. Because it is setting forth a new rule of law, the Court will apply the reformulated plain-view doctrine prospectively. Nevertheless, the Court holds that the trial court’s finding of inadvertence is supported by credible evidence in the record. The Court therefore reverses the judgment of the Appellate Division and reinstates the trial court’s denial of the motion to suppress.  A-5-15

2. Protective search on house not permitted where no evidence another person present. State v. Bryant __ NJ __ (2016)

   The officers here lacked reasonable and articulable suspicion that another party was present; much less that another party posed a danger to officer safety. The protective sweep was thus insufficient to establish an exception to the warrant requirement, and any evidence found as a result of that sweep—even if it was found in plain view—must be excluded and suppressed as fruit of the poisonous tree. A-2-15

3. Driver with prior school zone DWI sentenced as 2^nd Offender State v. Wheatley __ NJ Super. __ (App. Div. 2016)  

       Distinguishing State v. Reiner, 180 N.J. 307 (2004), the court held that a defendant who was previously convicted of driving while intoxicated (DWI) in a school zone in violation of N.J.S.A. 39:4-50(g) is subject to the increased penalties applicable to second offenders under N.J.S.A. 39:4-50(a)(2) when he was subsequently convicted of a conventional DWI in violation of N.J.S.A. 39:4-50(a). A-5026-14T1

4. Town outside surveillance camera not subject to OPRA but maybe subject to common law.

Gilleran v. Township of Bloomfield __ NJ __ (2016)

Compelling release on demand of security surveillance video would be contrary to the legislative intent motivating OPRA’s exemptions based on security concerns. The Township’s explanation for denying the request for the footage was adequate. Requests for video from surveillance cameras protecting public facilities are better analyzed under the common law right of access. The Court therefore reverses the judgment of the Appellate Division and remands the matter for further proceedings based on the unresolved common law claim. A-15-15

5 Twitter statement admissible in criminal trials. State v Hannah __ NJ Super. __ (App. Div. 2016)

Defendant was charged with hitting the victim in the face with her shoe. At trial, the State introduced a screenshot taken by the victim of a "tweet" allegedly posted by defendant after the incident saying "shoe to ya face." Defendant argues that this Twitter posting was improperly admitted into evidence, citing a Maryland case requiring that such social media postings must be subjected to a greater level of authentication. The Appellate Division rejects that contention, holding that New Jersey's current standards for authentication are adequate to evaluate social media postings. Under those standards, it was not an abuse of discretion to admit the tweet based on the presence of defendant's photo and Twitter handle, its content containing information specific to the parties involved, and its nature as a reply to the victim's communications. A-5741-14T3 

6. No obstruction for failure to provide DL for parking ticket.  State v Powers __ NJ Super. __ (App. Div. 2016)

Defendant was convicted after a trial in municipal court, and again on appeal to the Law Division, of obstruction based on both physical interference and an "independently unlawful act." N.J.S.A. 2C: 29-1(a). The court remanded for findings that might illuminate the judge's conclusory determination that defendant physically interfered with a state trooper in the issuance of a parking ticket at a highway rest stop.

       The court, however, also held that defendant, in these circumstances, could not be convicted of obstruction by means of "an independently unlawful act" that was based solely on N.J.S.A. 39:4-57, which provides that "[drivers of vehicles . . . shall at all times comply with any direction . . . of a member of a police department" when the officer is in the course of "enforcing a provision of this chapter." Defendant was outside his vehicle and, therefore not a driver, and the trooper was not enforcing Chapter 39 because he was only issuing a parking ticket. A-3764-14T2 

7. Official misconduct does not apply to EMT State v. Morrison __ NJ __ (2016)

A municipality’s contracting for emergency medical services through a private, non-profit first-aid squad does not convert the EMTs into public servants because they are not exercising authority of a uniquely governmental nature or performing a function exclusive to government in any traditional sense, regardless of whether there are one or more non-profit providers of publicly funded emergency medical services for the municipality. Morrison did not commit the offense of official misconduct because he was not performing a governmental function and therefore was not a public servant. The Court affirms the judgment of the Appellate Division and remands for proceedings on the four remaining counts. A-36

8. Victim Statement to police not admissible at trial State in Interest of A.R. __ NJ Super. __ (App. Div. 2016)

Appellant, a fourteen-year-old juvenile, was found guilty of sexually touching a seven-year old boy on a bus returning from summer camp. The alleged victim was developmentally comparable to a three-year-old. After getting off the bus, he blurted out to his mother's cousin that appellant had touched him during the ride. Eighteen days later, a detective interviewed the younger child on videotape at the county prosecutor's office. The child repeated the accusation, demonstrating it with anatomical dolls. No eyewitnesses on the bus, including the driver and aide, corroborated the incident.

At a pretrial Rule 104 hearing, the court ruled that both of the child's hearsay statements were sufficiently trustworthy to admit under the "tender years" hearsay exception, N.J.R.E. 803(c)(27). The court then queried the younger child at the start of the trial about his ability to discern and tell the truth. The court twice concluded from the child's troublesome responses that he was not competent to testify under the criteria of N.J.R.E. 601. Nevertheless, the court accepted the child's hearsay statements and trial testimony repeating the accusations, based on the so-called "incompetency proviso" in Rule 803(c)(27), which treats children of tender years as available witnesses even if they are not competent to testify.

The court concluded that the younger child's statements during his recorded interview with the detective were "testimonial" under the Confrontation Clause, as construed by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. The objective "primary purpose" of the interview was to elicit and preserve statements from an identified child victim of sexual abuse about wrongful acts for potential use as evidence in a future prosecution. The child's testimonial statements to the detective here are distinguishable from the non-testimonial statements that a young child victim made to her teachers at school in Ohio v. Clark, 135 S. Ct. 173 (2015).

       Although appellant's counsel attempted to cross-examine the child, that exercise was inadequate to safeguard his confrontation rights, given the child's undisputed incompetency. Hence, the court reversed the admission of the detective's interview and the child's in-court testimony because it violated appellant's constitutional rights. However, as appellant concedes, the child's spontaneous assertion after getting off the bus was not testimonial under the Confrontation Clause and was properly admitted. The court remanded for the trial court to reconsider the proofs in light of the determinations. A-2238-14T3 

9. Dismissal of DV can’t be used as bargaining chip in divorce case J.S. v. D.S  __ NJ Super. __ (App. Div. 2016)

Defendant appealed a domestic violence final restraining order (FRO), claiming it was void upon entry – despite the parties' settlement of matrimonial issues that included defendant's consent to the FRO – because the judge did not find an act of domestic violence had occurred. A few days before the scheduled date for oral argument in this court, the parties stipulated to a dismissal of the appeal that would allow for the perpetuation of the FRO.

Notwithstanding their agreement, the court exercised its discretion, pursuant to Rule 2:8-2, and determined that the interests of justice required a disposition of the appeal's merits; the court vacated the FRO due to the lack of a finding of domestic violence, reinstated the TRO, and remanded for a final hearing. A-5742-14T2 

10. Mandatory Electronic Filing in Criminal cases in Ecourts.

The Supreme Court informed that bar that the Court has determined that electronic filing in Criminal matters using Ecourts Criminal is mandatory with certain limited exceptions. 

    All attorneys and law firms seeking to file documents in criminal matters must do so electronically through Ecourts, except in the following limited instances: (1) cases not tracked in PROMIS/Gavel, e.g., expungements, gun permit filings, municipal appeals; (2) filings that are not part of the court's official case file, e.g., prosecutor discovery pursuant to Rule 3:13-3(b)(1); (3) filings where a fee is specifically required, e.g., municipal appeals, expungements; and (4) Megan's Law filings.

11. New Criminal Rules effective Jan 1, 2017

No more mandatory cash bail for indictable criminal charges.

Everyone with a Warrant gets to spend at least one night in jail !!!  Attorneys need to set up an Ecourts login and file Superior Court motions online, or refer cases out.

On Jan. 1, 2017, NJ shifted from a system that relies principally on setting monetary bail as a condition of release to a risk-based system that is more objective, and thus fairer to defendants because it is unrelated to their ability to pay monetary bail. The statute also sets deadlines for the timely filing of an indictment and the disposition of criminal charges for incarcerated defendants.

Source: www.judiciary.state.nj.us/criminal/cjr/index.html

Photo: Eric Morrell & Ken Vercammen were speakers at the Annual Middlesex County Bar Association Municipal Court case update. For information on other MCBA events go to http://www.mcbalaw.com

13. Next programs:

March 2, 2017  Review of recent caselaw for Police. Sponsored by  of Retired Police & Fire Middlesex & Monmouth Local 9 meeting NJRPFA 12 noon, followed by monthly meeting of Retired Police & Fire Middlesex & Monmouth Local 9 meeting NJRPFA At South Amboy Ancient Order of Hibernians, 271 2nd St, South Amboy, NJ 08879

March 20, 2017 Municipal Court College seminar

5:30pm-9:00pm

NJ Law Center, New Brunswick

http://tcms.njsba.com/

May 1, 2017 Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and individuals involved in Probate

Nuts and Bolts of Elder Law

5:00 PM- 9:00 PM NJ Law Center

May 16-17 NJSBA Annual Meeting at the Borgata

July  14, 2017 Happy Hour at Bar Anticipation

Photo text Handling Drug, DWI and Serious Cases in Municipal Court  

Kenneth Vercammen, Esq., Past Municipal Court Attorney of the Year

Tara Auciello  Edison Prosecutor

John Menzel, Esq., Past Chair Municipal Court Section

Norma Murgado, Esq., Chief Prosecutor- Elizabeth & Woodbridge

William Brigiani, Esq., Past President Middlesex County Bar

   The 400 page book written by Ken Vercammen and John Menzel is available from NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION

NJICLE, A Division of the NJSBA NJ State Bar Association  732-214-8500

Index

1. NJ Supreme Court makes “plain view” car searches easier

State v. Gonzales

2. Protective search on house not permitted where no evidence another person present. State v. Bryant

3. Driver with prior school zone DWI sentenced as 2^nd Offender State v. Wheatley

4. Town outside surveillance camera not subject to OPRA but maybe subject to common law.

Gilleran v. Township of Bloomfield

5 Twitter statement admissible in criminal trials. State v Hannah

6. No obstruction for failure to provide DL for parking ticket.  State v Powers

7. Official misconduct does not apply to EMT State v. Morrison

8. Victim Statement to police not admissible at trial State in Interest of A.R.

9. Dismissal of DV can’t be used as bargaining chip in divorce case J.S. v. D.S  

10. Mandatory Electronic Filing in Criminal cases in Ecourts.

11. New Criminal Rules effective Jan 1, 2017

12 Photo: Eric Morrell

13. Next events:

14. Photo text Handling Drug, DWI and Serious Cases in Municipal Court  

  The ABAS’ CRIMINAL LAW FORMS book

Award winning book from the American Bar Association

Solo & Small Firm Division Author: Kenneth Vercammen

 Use Criminal Law Forms to help represent persons charged with criminal and traffic offenses. Detailed instruction and valuable insight is offered beginning with the initial contact with the client, to walking into the courthouse, and managing the steps that follow. Two hundred and ten modifiable forms help make criminal lawyers more efficient and productive, while also reducing the chance for mistakes. Criminal Law Forms helps lawyers face the challenges of:

•     Criminal defense

•     DWI cases

•     Juvenile offenses

•     Domestic violence

•     Traffic violations

•     Auto Accidents

•     And much more

Regular price $139.95,  GP SOLO Member Price $129.95 To order contact ABA Customer Care, 1-800-285-2221 321 N. Clark Street, Chicago, IL 60653 or fax to 312-988-6030 (PC: 5150457)   ISBN:     978-1-61438-879-1                http://apps.americanbar.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5150457

 Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he  handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's new book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association.  As the Past Chair of  the Municipal Court Section he has served on its board for 10 years. 

     Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.

        Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine.  He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.

       For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.

His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings.  Ken also serves as the Editor of the popular legal website www.njlaws.com and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.

       Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. Recently, the ABA Solo Division has selected Ken to write its new book on “Marketing for the New and Small Firm Attorney”. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4^th degree black belt.

Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's award winning book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association.  As the Past Chair of the Municipal Court Section he has served on its board for 10 years.  He is admitted to the Supreme Court of the United States.

Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.

Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine.  He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.

         For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.

His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings.  Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.

            Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4^th degree black belt.

KENNETH VERCAMMEN

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500