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 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)

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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

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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 threeyear-

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 incourt

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

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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