Fall Municipal Court Law review 2018
By Kenneth Vercammen Esq.
1. No weekend jail for third offender DWIs, must serve straight time
State v. Anicama
2 Plain feel of bulge of rock cocaine permitted search
State v Evans
3 No forced entry into locked apartment. State v. Sencion
4. Ok to apply for expungement even if discharged from probation In re Expungement of the Criminal Records of E.C
5. Driver can be charged with criminal driving while suspended if they had prior refusal and prior dwi State v Dougherty
6.Ordinary police video not subject to OPRA
Paff v. Ocean County Prosecutor’s Office
7. NJ Driver had to pay surcharge based on Illinois DWI
Koscinski v. New Jersey Motor Vehicle Comm.
8. Officer writing refusal as 39:4-50.2 rather than N.J.S.A. 39:4-50.4a. does not dismiss refusal State v. Dito
Photo New NJ assembly Speaker Craig Coughlin w Ken Vercammen at Middlesex Bar Goes Local page 1
1. No weekend jail for third offender DWIs, must serve straight time
State v. Anicama
Defendant was convicted of a third or subsequent offense of driving while intoxicated (DWI). The Municipal Court allowed him to serve the mandatory 180-day sentence under N.J.S.A. 39:4-50(a)(3) two days per week. The Law Division reversed.
The Appellate Division holds a third or subsequent DWI offender is ineligible for periodic service. Michael's Law amended the DWI statutes to require the 180-day sentence be spent in jail, excepting only up to ninety days spent in inpatient drug or alcohol rehabilitation, and to preclude other options. The amendment to N.J.S.A. 39:4-51 was intended only to bar work release for such offenders, not to lift the prohibition on their release before the jail term had been served. The specific law governing DWI sentences governs over the general provision for periodic service in N.J.S.A. 2B:12-22. The court disapproves State v. Grabowski, 388 N.J. Super. 431 (Law Div. 2006), which permitted such periodic service. (A-0452-16T4)
2 Plain feel of bulge of rock cocaine permitted search
State v Evans
The panel erred in its application of the “plain feel” doctrine. Officer Laboy had witnessed “hundreds” of instances where defendants concealed contraband in the front of their pants and therefore immediately recognized the “rocklike” substance he felt to be similar to crack cocaine. Between the officer’s experience-derived identification of the substance and the presence of $2000 in cash, the “plain feel” exception -- which the Court adopts -- applied. (A-85/86-16;
3. No forced entry into locked apartment. State v. Sencion, 454 N.J. Super. 25 (App. Div. 2018).
The court reverses the denial of defendants' motion to suppress drugs and guns found after a plain view sighting through the open door of an apartment. The police used a tool to force entry into the locked apartment building twice before approaching the fourth-floor apartment door. The State, conceding a lack of probable cause, argued that the forced entry into the building did not violate defendants' expectation of privacy because of the size of the apartment building. The court refused to "condone the police forcing entry into a locked residential apartment building while on an investigative hunt for suspected criminal activity."
4. Ok to apply for expungement even if discharged from probation In re Expungement of the Criminal Records of E.C., 454 N.J. Super. 48 (App. Div. 2018).
An individual who has been discharged from probation, albeit with an imperfect record while on probation, and who has subsequently paid all outstanding fines, is not barred from applying for expungement. The trial court erred in holding that petitioner was barred for applying for expungement under N.J.S.A. 2C:52-2(a)(2), because she was discharged from probation "without improvement."
5. Driver can be charged with criminal driving while suspended if they had prior refusal and prior DWI State v Dougherty
The court finds that the plain language of N.J.S.A. 2C:40-26(b), the fourth-degree offense of driving while suspended, includes both driving while under the influence (DWI), N.J.S.A. 39:4-50, and refusal to submit to breath testing (refusal), N.J.S.A. 39:4-50.4a. They are predicate offenses even where the prior conviction history consists of one conviction under the separate sections of the Motor Vehicle Code. In other words, one DWI and one refusal suffice for the criminal offense of driving while suspended.
6.Ordinary police video not subject to OPRA
Paff v. Ocean County Prosecutor’s Office
The Court reverses the judgment of the Appellate Division panel, concurring with the panel’s dissenting judge that the MVR recordings were not “required by law” within the meaning of N.J.S.A. 47:1A-1.1, that they constitute criminal investigatory records under that provision, and that they are therefore not subject to disclosure under OPRA. The Court agrees with the panel’s conclusion that the recordings are not within OPRA’s “investigations in progress” provision, and that OPRA’s privacy clause does not exempt the recordings from disclosure. The Court remands the matter to the trial court for consideration of plaintiff’s claim of a common-law right of access to the MVR recordings.
7. NJ Driver had to pay surcharge based on Illinois DWI
Koscinski v. New Jersey Motor Vehicle Comm.unreported
Koscinskiwas convicted of driving while intoxicated, his first conviction of such offense. Three years later, appellant was charged in Illinois for the same offense. The sentence the Illinois court imposed was that appellant "continue counseling in New Jersey" and pay a fine of $750. Both states were members of the Interstate Driver License Compact, which required party states to impose penalties upon licensed drivers who have been convicted of specific offenses in other states.
After receiving a record of the Illinois conviction, respondent issued petitioner a notice of suspension. Respondent denied appellant's request for a hearing finding none of the factual or legal issues asserted warranted such a proceeding and ordered his license to be suspended. Subsequently, appellant informed respondent that he received a notice that respondent intended to increase the monthly payment toward the surcharge it imposed as a result of the Illinois conviction and requested a hearing. Respondent issued a written decision in which it pointed out N.J.S.A. 17:29A-35 required a specific assessment when a New Jersey driver had been convicted of driving under the influence of alcohol.
On appeal, the court affirmed rejecting appellant's argument that respondent was without authority to impose a surcharge or an increase in the surcharge because he had previously paid a fine to the Illinois court in connection with that conviction. Under the Compact, appellant was subject to punishment in both states for driving while intoxicated. Moreover, appellant failed to identify any material facts that were in dispute, which would otherwise require a hearing. Accordingly, the court affirmed. Source NJLJ Daily Briefing
8. Officer writing refusal as 39:4-50.2 rather than N.J.S.A. 39:4-50.4a. does not dismiss refusal State v. Ditounreported App. Div.
An officer issued respondent a summons for driving while intoxicated and for refusal to submit to a breath test. Respondent moved to dismiss the refusal charge on the ground that the summons referenced N.J.S.A. 39:4-50.2 rather than N.J.S.A. 39:4-50.4a. Following the municipal court judge's denial of his motion, respondent pled guilty to both charges. On appeal, the law division judge found that respondent's summons for refusal to submit the breath test had incorrectly cited the statutory authority; the judge concluded that the error was fatal as it failed to inform respondent of the nature of the charge against him. Appellant now argued that the law division judge erred by dismissing the summons as it provided respondent with adequate notice of the charge and the penalties he faced if found guilty of refusal.
The court reversed finding the trial court erred by concluding that the summons issued was fatally flawed for its incorrect statutory citation. Since the elements of refusal were found in both statutes, the citation of only the N.J.S.A. 39:4-50.2 did not require dismissal of the summons. The court noted that dismissal of the charges under these circumstances would exalt form over substance, an approach the courts have properly rejected. Moreover, respondent was not prejudiced or denied due process as the record showed the officer read respondent the Attorney General's standard statement, thereby informing respondent that if he failed to submit to the breath test, he would be charged with refusal. Accordingly, the court reversed. Docket A-2699-16T3 source https://www.law.com/njlawjournal/almID/1515728233NJA269916T/
Photo New NJ assembly Speaker Craig Coughlin w Ken Vercammen at Middlesex Bar Goes Local. Two great Irishmen
We thank over 100 professionals, attorneys and friends who attended the Summer Blast Happy Hour & Networking Social at Bar Anticipation. My family and I had a great time catching up with old friends and meeting new ones.
We appreciate the many attendees donated canned goods donated which were donated to St. Matthews Edison Food Pantry.
Calendar
November 7 NJSBA Papal Audience with Pope Francis Vatican City St. Peter’s Square and Rome Ethics program
Contact NJSBA for details
November 27 Free Woodbridge Library
Wills, Estate Planning & Probate Seminar at 7pm
WILLS & ESTATE ADMINISTRATION-PROTECT YOUR FAMILY AND MAKE PLANNING EASY Free program open to the public, you do not need to be a Township resident to attend
SPEAKER: Kenneth Vercammen, Esq. Edison, NJ (Author- Wills and Estate Administration by the ABA)
Main Topics:
1. NJ Estate Tax eliminated for 2018 & NJ Veterans Tax exemption of up to $3,000
2. The 2018 changes in Federal Estate and Gift Tax
3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent
4. Power of Attorneys
5. Living Will
6. Administering the Estate/ Probate/Surrogate
7. Avoiding unnecessary expenses
COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
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