Fall Municipal Court Law
Review 2017
1. Dash cam video in fatal shooting
public record
North Jersey Media
Group, Inc. v. Township of Lyndhurst
NJMG was entitled to disclosure of
unredacted Use of Force Reports, under OPRA, and dash-cam recordings of the
incident, under the common law.
Investigative reports, witness statements, and similarly detailed records
were not subject to disclosure at the outset of the investigation, when they
were requested.
2. Canine dog sniff cannot be long delay
State v. Dunbar
The
Court adopts the federal standard barring unnecessary delays for the purpose of
canine sniffs. Officers do not need reasonable suspicion of a drug offense
provided that the canine sniff does not prolong the stop beyond the time required
to complete the stop’s mission. (A-94-15; 077839)
3. Defendant had a constitutional right
to possess the machete in his home State v. Montalvo 226 N.J. 212
(2017)
The right to possess a weapon in one’s own home for
self-defense would be of little effect if one were required to keep the weapon
out-of-hand, picking it up only “spontaneously.” Defendant had a constitutional
right to possess the machete in his home for his own defense and that of his
pregnant wife. Because the trial court’s instructions did not convey this
principle, the instructions were erroneous. Further, because the erroneous
instructions were capable of producing an unjust result in this matter, they
constitute plain error.
4. GPS tracking
device by police not barred
State v McDuffie
The
court examined defendants' attack on the State's exercised privilege,
refraining from disclosing information regarding details related to a global
positioning system (GPS) tracking device used to prove their involvement in two
burglaries. The court rejected defendants' constitutional attacks and upheld
the privilege granted by N.J.R.E. 516 and N.J.S.A. 2A:84A-28, defining the
guidelines reviewed when weighing disclosure in light of the asserted
privilege. These include: (1) whether defendant demonstrates a particularized
need for disclosure related to advance a stated defense; (2) whether the
opportunity to cross-examine the officer, asserting non-disclosure based on
privilege, satisfies a defendant's need to challenge the credibility of the
testifying witness; (3) whether law enforcement provided required corroborating
evidence extrinsic to the GPS, to protect a defendant's rights of confrontation
and fair trial; and (4) whether a defendant has the opportunity to provide
expert testimony to attack the evidence without disclosure of the requested
information.
5. NJ had jurisdiction for criminal spam attach on NJ
business
State v Tringali
The State alleged that, acting in Florida, defendant paid an
accomplice to launch spam attacks on a website that was integral to a New
Jersey internet-based business, for the purpose of harming the business owner.
The Appellate Division reversed an order dismissing the indictment charging
defendant with the offenses of disrupting or impairing computer services,
N.J.S.A. 2C:20-25(b), and impersonating another for the purpose of obtaining a
benefit or depriving another of a benefit, N.J.S.A. 2C:21-17(a)(1). As to both
offenses, the harmful result to the victim is an "element" of the
offense, within the meaning of the territorial jurisdiction statute, N.J.S.A.
2C:1-3(a)(1) and -3(g). Because the prosecutor produced some evidence that the
New Jersey victims suffered harm in this State, which was an element of each
computer crime statute, New Jersey has territorial jurisdiction to prosecute
defendant for those offenses. Therefore, the trial court erred in dismissing
those counts of the indictment for lack of territorial jurisdiction.
A-1262-15T1
6. OPRA can also require electronically stored data.
John Paff v.
Galloway Township
The
Appellate Division’s overly constrictive reading of OPRA cannot be squared with
the OPRA’s objectives or statutory language. OPRA recognizes that government
records will constitute not only paper documents, but also information
electronically stored. The fields of information covering “sender,”
“recipient,” “date,” and “subject” in the emails sent by the Galloway Township
Chief of Police and Clerk over a two-week period are government records under
OPRA.
7. Mandatory DNA samples
in serious Municipal court criminal
Anyone
who pleads guilty to most criminal disorderly criminal offenses must provide a
DNA sample upon a guilty plea.
Effective July 1, 2017, the New Jersey Department of Law and Public Safety will
require DNA collection for 19 disorderly persons offenses at the time of
conviction. The State Police memo dated May 12, 2017 can be viewed
http://www.njsmpa.org/pdfs/codis_dna_collection.pdf
At the time of collection, the offender’s
identity must be electronically verified via the LiveScan machine using the
Criminal Inquiry option, not Criminal Arrest as Criminal Arrest prints were
already taken at the time of arrest. Care must be taken to avoid taking
Criminal Arrest prints from a subject for the same offense twice.
2C:12-1 Assaults
2C:35-10 All
drug charges and Paraphernalia
2C:34-1 Prostitution
8 Operation in DWI
requires proof
State v. Decicco App.
Div. unreported
A trooper, responding to a report about an
"erratic driver," found a car parked in a field at a campground.
Defendant was in the driver's seat holding a can of beer in his hand. The keys
were in the ignition, but the engine was not running. Trooper testified that he
could feel heat coming from the front of the car and heard crackling sounds
from the engine. Defendant admitted drinking beer, said he was at the
campground to pick up his mail and was staying to "sleep[] it off."
Defendant failed field sobriety tests and his BAC measured 0.09. On appeal,
defendant contended that the state failed to show that he "operated"
a vehicle. The court found that the state failed to meet its burden of proof
because defendant's admission that he had driven to the campground did not
establish a timeline to show that he was intoxicated when he did so and the
state produced no eyewitnesses to defendant's alleged erratic driving.
Additionally, the trooper admitted that the warmth from the car engine might
have been from defendant running the air conditioner while parked.
Unreported source New Jersey Law Journal April
6, 2017
9. No blood draw without
warrant unless exigency
State
of New Jersey v. Smiejan, N.J. Super. App. Div. Unreported
Appellant was involved in an accident in which he struck two
parked cars. While at the hospital for his injuries, a sample of his blood was
taken without his consent or a search warrant; subsequent testing established
his blood alcohol content was above the legal limit. Appellant moved for, and
was denied suppression of the BAC evidence. The court noted there were exigent
circumstances, which existed because of the delays inherent in the warrant
application process. On appeal, appellant argued that the seizure of his blood
violated the Fourth Amendment, the Supreme Court's Missouri v. McNeely ruling applied which
held that dissipation did not constitute an exigency, and ineffective
assistance of counsel. The court reversed holding the trial court erred in
relying upon the municipal judge's past experience as a factual basis to find
the existence of an adequate exigency. The court further held there were no
meaningful factual findings made by either the municipal court judge or the law
division judge. Finally, the court stated that, pursuant to McNeely, the case was to be remanded to determine
whether the circumstances warranted the admission of the blood draw as the
trial court failed to determine under the totality of the circumstances whether
exigency existed thereby negating a need for a warrant. Accordingly, the court
reversed and remanded.
10. Even if the request to search were not lawful,
defendant’s flight attenuated the seizure from the alleged improper police
conduct
State v. Lopez N.J. Super. App. Div. unreported
Defendant appealed the denial of his motion
to suppress evidence and his sentences. Police made a motor vehicle stop of
defendant’s vehicle, observed that defendant was nervous, saw a large amount of
cash in the center console, suspected drug activity and requested consent to
search the car. Defendant initially agreed, then drove away throwing a black
object out of the car. Defendant eventually stopped and was arrested. The
police found a plastic bag-containing heroin near where defendant threw the
object from the car. At the hearing on the motion to suppress, the trial judge
found the stop was lawful because of the inoperable brake light and defendant’s
change of lanes without signaling. The court found that sufficient credible
evidence supported the stop and the request to search.
Even
if the request to search were not lawful, defendant’s flight attenuated the
seizure from the alleged improper police conduct. Source NJLJ (14-2-3291) unreported
11. Strip search after marijuana
arrest not permitted
State v. Jules, N.J. Super. App. Div. unreported
Appellant appealed from his conviction for
third-degree possession of alprazolam (Xanax). Appellant’s appeal focused
solely on the denial of his motion to suppress evidence obtained from a strip
search, which police conducted at their headquarters after his arrest. In
denying appellant’s motion, the judge found the officer had reasonable
articulable suspicion justifying the initial stop, probable cause for the
arrest and that the strip search was lawful under the search incident to arrest
exception to the warrant requirement. Appellant did not dispute the initial
stop or the arrest; appellant argued that the police acted unlawfully by
subjecting him to a strip search without first obtaining a warrant.
On
appeal, the court-reversed denial holding the officer’s suspicion that the item
in appellant’s groin area was a prescription pill bottle did not establish
probable cause that appellant committed the named offense. The court found
there was no “objectively reasonable” basis to arrest appellant for possession
of prescription pills, only that there was probable cause to arrest him for
marijuana possession. Therefore, the police could not use the search incident
to arrest exception to circumvent the protections that arose from appellant’s
arrest. Furthermore, exigency could not support the search once the police
handcuffed and secured appellant. Finally, the court found the “plain feel”
exception inapplicable because the object believed to be a prescription pill
bottle did not make it “immediately apparent” that the bottle contained
contraband. Accordingly, the court reversed denial of suppression and remanded
for dismissal of the judgment of conviction. Source NJLJ Daily briefing
Index
1. Dash cam video in fatal shooting public record
North Jersey Media Group, Inc. v.
Township of Lyndhurst
2.
Canine dog sniff cannot be long delay
State v. Dunbar
3. Defendant had a constitutional right to possess the
machete in his home
4. GPS tracking
device by police not barred
State v McDuffie
5. NJ had
jurisdiction for criminal spam attach on NJ business
State v
Tringali
6. OPRA can also require electronically stored
data.
John Paff v. Galloway
Township
7. Operation in DWI requires proof
State v. Decicco
8. Even if the
request to search were not lawful, defendant’s flight attenuated the seizure
from the alleged improper police conduct
State v.
Lopez
Next seminars
November 21, 2017 A Review of the Major Municipal Court
Cases from 2016 MCBA Office, 87
Bayard Street, New Brunswick 2:00 p.m.- 4pm
Info Contact: MCBA Jonathan Cowles jcowles@mcbalaw.com
Phone: 732.828.3433, x. 102
January 10, 2018 NJICLE
webinar-
The “New” Cases and the “Oldies and
Goodies” Every Municipal Court Practitioner Needs to Know
noon-1:40pm
March 19, 2018 Municipal Court
College seminar
5:30pm-9:00pm
NJ Law Center,
New Brunswick
Nuts &
Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and
individuals involved in Probate
May 7, 2018 5:00 PM- 9:00 PM NJ Law Center
Photo page 1 NJSBA Annual Meeting Ethics program Kenneth Vercammen Christina Vassiliou Harvey, Jason T. Komninos photo
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Obstructing passage of other vehicles or street cars prohibited; clearance of
intersections
No vehicle or street car shall be permitted by the owner
or driver thereof to so occupy a street as to interfere with or interrupt the
passage of other street cars or vehicles, nor shall the driver of a vehicle or
street car drive such vehicle or street car into an intersection if preceding
traffic prevents immediate clearance of the intersection.
