Winter 2017
Municipal Court Law Review
Major
cases affecting Municipal Court and criminal cases
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 2nd 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
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 2nd 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
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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 4th 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 4th
degree black belt.
KENNETH VERCAMMEN
ATTORNEY
AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
