N.J.Municipal Court Law Review Spring 2021

 

N.J.Municipal Court Law Review

INDEX

1. Marijuana Decriminaliza- tion......................................p1 2. Special Rules on pot for individuals under the Age of 21.........................................p2 3. AG Directive 2021-1: Directive Governing Dis- missals of Certain Pending Marijuana Charges............p2 4. Pot Cases already re- solved: Vacate plea or Con- ditional Discharge.............p2 5. What Police can’t do when they smell pot .........p2 6. What police can’t do if smell pot with person under 21.........................................p3 7. Defendant must be ad- vised of the changes in order to uphold Miranda waiver State v Sims.........................p3 8 In new science such as DNA, defendant can have scientific evidence such as machine software source code. State v Pickett...........p3 9. Lewd gestures to home camera could be violation of TRO State v EJH................p3

*Editorial assistance by Ben Klein Delaware Law School and Brian Csobor Rutgers University 

1. Marijuana Decriminalization

The Governor on February 22, 2021 signed three bills changing the legal status of marijuana. These laws, which went into immediate effect, create a two-tier

framework: Regulated Cannabis.
When the substance is bought, sold, and used under certain conditions, it

is treated as “regulated cannabis” and fully legal in New Jersey. However, regulated cannabis will not be available for several months until a new government body, the Commission, issues rules governing its use.

Legal amounts for Marijuana

The following conduct no longer violates state law:
• Simple possession of 6 ounces or less of marijuana, 2C:35-10(a)(4)(b);
• Simple possession of 17 grams or less of hashish, 2C:35-10(a)(4)(b);
• Being under the influence of marijuana or hashish, 2C:35-10(b);
• Failure to properly dispose of marijuana or hashish, 2C:35-10(c);
• Possession of paraphernalia for marijuana or hashish, 2C:36-2; and
• Possession of marijuana or hashish as a motor vehicle operator, 39:4-49.1.

As part of these revised thresholds, the law creates a new framework for indi- viduals who distribute 1 ounce or less of marijuana or 5 grams or less of hashish:
• First offense. Officers shall issue a written warning to individuals for their first offense. Law enforcement agencies will need to build new mechanisms to track the issuance of such warnings.
• Second or subsequent offense. Individuals who engage in a second or subsequent violation of the statute are subject to a complaint-summons for a fourth-degree crime. Under the new law, the prohibitions against distribution of marijuana also apply to possession with intent to distribute marijuana.
In addition to these changes, law enforcement officers may no longer detain, ar- rest, or otherwise take into custody an individual for violating certain marijuana or hashish offenses. Instead, officers should collect the individual’s personal informa- tion and process them accordingly. Those offenses are:
• Simple possession of more than 6 ounces of marijuana, 2C:35-10(a)(3)(b);
• Simple possession of more than 17 grams of hashish, 2C:35-10(a)(3)(b);
• Distribution of 1 ounce or less of marijuana, 2C:35-5(b)(12)(b); and
• Distribution of 5 grams or less of hashish, 2C:35-5(b)(12)(b).
All four of these offenses constitute fourth-degree crimes, except when an indi- vidual engages in their first violation of the distribution offenses (which, as noted above, only results in a warning). Officers should therefore charge these fourth-de- gree offenses by complaint-summons rather than complaint-warrant, and should not fingerprint the individual until their initial court appearance on the summons.

The odor of marijuana or hashish, either burnt or raw, by itself no longer es- tablishes “reasonable articulable suspicion” to initiate a stop or search of a personor their vehicle to determine a violation of a possession offense or a fourth-degree distribution offense. Sourcehttps://www.nj.gov/oag/dcj/agguide/AG-Interim-Guid- ance-Marijuana-Decrim-2020-0222.pdf

2. Special Rules on pot for persons Under the Age of 21

The law also establishes a new framework for indi- viduals under the age of 21 who possess or consume any amount of marijuana, hashish, cannabis, or alcohol in any public place, including a school:
• First offense. Officers shall issue a written warning, which must include the person’s name, address, and date of birth, but the warning shall not be provided to the in- dividual’s parent or guardian.
• Second offense. Officers shall issue a written warning, and also provide the person with informational materi- als on community drug treatment services. For individ- uals under the age of 18, the officer shall provide the in- dividual’s parent or guardian with copies of the warnings issued for both the first and second offenses.
• Third or subsequent offense. Officers shall issue a writ- ten warning and again provide the individual with in- formation on community drug treatment services. If the individual is between 18 and 21, then the officer shall provide notice of the written warning to the communi- ty drug treatment program; if the individual is under 18, then the officer shall again provide the juvenile’s parents or guardian with a copy of the written warning.

Law enforcement officers must also retain, with any of the written warnings outlined above, a sworn statement with a description of the factual circumstances that sup- port a finding of the violation.

As with the new warning system required for adults who distribute small amounts of marijuana, this new framework for individuals under the age of 21—codi- fied at N.J.S.A. 2C:33- 15—will require law enforcement agencies to develop new mechanisms to track the issu- ance of these warnings. In the interim, agencies should use existing resources to track this information. Addi- tional guidance on this issue will be forthcoming.

Please note that, under this framework, officers may not fingerprint individuals under the age of 21 for their first, second, third, or subsequent offenses. However, if an indi- vidual under 21 is in possession of more than 6 ounces of marijuana or 17 grams of hashish, that individual is also in violation of N.J.S.A. 2C:35-10(a)(3)(b), a fourth-degree crime, and may be issued a complaint- summons and fin- gerprinted at their first court appearance.

3. AG Directive 2021-1: Directive Governing Dismissals of Certain Pending Marijuana Charges

This directive instructs state, county, and municipal prosecutors to dismiss charges pending as of February 22, 2021 for any marijuana offense that is no longer ille- gal under state law. Pending Cases are to be dismissed. Effective immediately, prosecutors shall seek dismissals of any pending charges listed in the following chart in any cases where a juvenile or adult’s conduct occurred on or before February 22, 2021. Dismissals can be re- quested on an ad hoc basis as the cases are scheduled for a municipal or superior court proceeding. In cases involving multiple charges, only the charges listed in the chart are to be dismissed pursuant to this Directive; all other charges and pending matters should remain. 2C:35-5(b)(12) 2C:35-10(a)(3) 2C:35-10(a)(4) 2C:35-10(b). 2C:35- 10(c) 2C:36-2, 2C:36A-1 39:4-49.1

4. Pot Cases already resolved: Vacate plea or Conditional Discharge

For those cases already resolved, pursuant to the new decriminalization laws, the Administrative Office of the Courts will vacate by operation of law any guilty verdict, plea, placement in a diversionary program, or other en- try of guilt on a matter where the conduct occurred prior to February 22, 2021.

Also vacated will be any conviction, remaining sen- tence, ongoing supervision, or unpaid court-ordered fi- nancial assessment of any person who is or will be serv- ing a sentence of incarceration, probation, parole or other form of community supervision as of February 22, 2021 as a result of the person’s conviction or adjudication of delinquency solely for the above listed charges. Effective date. This Directive shall take effect February 22, 2021

5. What Police can’t do when they smell pot

What should an officer do if they smell marijuana com- ing from a vehicle during a motor vehicle stop?
First, the officer should take the traditional investigative steps to determine if there is probable cause to believe that the driver is operating the vehicle while under the influence, in violation of N.J.S.A. 39:4-50. If so, the driver may be arrested and the vehicle may be searched.

If the driver is not found to be under the influence, the new laws are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable sus- picion to justify a continued stop, nor probable cause to conduct a search of the vehicle or the person, in a mari- juana possession case or even in a low-level (fourth-de- gree) possession with intent to distribute marijuana case. As a result, the vehicle and occupants must be released once the initial reason for the stop has been addressed.

May an officer initiate or continue a pedestrian stop of an individual based on the officer detecting the odor of marijuana? No, the new laws are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify or continue a pedestrian stop. In addition, the odor of marijuana by itself does not establish probable cause to conduct a search in a marijuana possession case or even a low-lev- el (fourth-degree) possession with intent to distribute marijuana case. The age of the person being stopped is irrelevant in these situations.

6. What police can’t do if smell pot with person under 21

The new law also prohibits law enforcement officers from engaging in certain actions when investigating an individual under the age of 21 for possession of marijua- na, hashish, cannabis, or alcohol, in violation of N.J.S.A. 2C:33-15(a)(1). Importantly, officers who violate these provisions may be charged criminally with depriving the individual of their civil rights, regardless of whether the officer intended to do so. Prohibited conduct includes:
• Officers shall not ask an individual under 21 for con- sent to search the person to determine a violation of that crime. (However, if the individual is over 18 and the of- ficer reasonably believes that other criminal activity is afoot, the individual may grant consent to search);
• The odor of marijuana, hashish, or alcohol no longer constitutes reasonable articulable suspicion to initiate a stop of an individual under the age of 21, nor does it pro- vide probable cause to search the person’s personal prop- erty or vehicle to determine a violation of N.J.S.A. 2C:33- 15(a)(1).
• The unconcealed possession of an alcoholic beverage, marijuana, hashish, or cannabis item in violation of N.J.S.A. 2C:33-15(a)(1) that is observed in plain sight shall not con- stitute probable cause to initiate a search of an individual under the age of 21 or that individual’s personal property or vehicle to determine a violation of any law.
• An individual under the age of 21 who violates N.J.S.A. 2C:33-15(a)(1) shall not be arrested, detained, or other- wise taken into custody except to the extent required to issue a written warning or provide notice of a violation to a parent/guardian, unless the person is being arrested, detained, or otherwise taken into custody for also com- mitting another violation of law for which that action is legally permitted or required.
• When responding to a violation or suspected viola- tion of N.J.S.A. 2C:33-15(a)(1), law enforcement offi- cers must activate their body worn cameras, which must remain activated throughout the encounter. Source https:// www.nj.gov/oag/dcj/agguide/AG-Interim-Guidance-Marijuana-De- crim-2020-0222.pdf

7. Defendant must be advised of the changes in order to uphold Miranda waiver State v Sims

In this appeal, the court determined as a matter of first impression that the Supreme Court’s holdings in State v. A.G.D., 178 N.J. 56 (2003), and State v. Vincenty, 237 N.J. 122 (2019), requiring that police inform a defendant subject to custodial interrogation of specific charges filed against him before he can waive his Miranda rights, also applies to an interrogee who was arrested and ques- tioned prior to any charges being filed, where the arrest was based upon information developed through an ear- lier police investigation.The court also concluded that the trial court erred by admitting the victim’s statement to police through a police officer’s hearsay testimony at trial because defendant was deprived of a meaningful opportunity to challenge the victim’s statement through cross examination at a pretrial hearing or before the jury, where at the pretrial hearing the victim could not recall ever giving the statement to police and he later refused to appear at trial to testify before the jury

In a separate opinion concurring with the result but dissenting from the majority’s extension of A.G.D. to cus- todial interrogations where neither a complaint-warrant nor arrest warrant have been issued, a member of the panel expressed concern that the new rule announced in the majority opinion has the potential to introduce subjectivity, ambiguity, and uncertainty to the adminis- tration of Miranda warnings.

The opinion that the court originally issued on Jan- uary 4, 2021, is being withdrawn and replaced by the accompanying opinion based upon the court having granted the State’s motion to correct the record relating to two trial transcripts, and its motion to reconsider in light of those corrections. Specifically, the transcripts were corrected to reflect that defendant, in response to his pre-interrogation inquiry, was not told of any charge that supported his arrest, rather than a lie about the charge as described in the earlier opinion.

Municipal Court Law Review Spring 2021 Kenneth Vercammen, Editor 732-572-0500 www.njlaws.com page 2

8. In new science such as DNA, defendant can have scientific evidence such as machine software source code. State v Pickett In this case of first impression addressing the pro- liferation of forensic evidentiary technology in criminal prosecutions, this appeal required the court to deter- mine whether defendant is entitled to trade secrets of a private company for the sole purpose of challenging, at a Frye hearing, the reliability of science underlying novel DNA analysis software and expert testimony. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). At the hearing, the State produced an expert who relied on his company’s complex probabilistic genotyping software program to testify that defendant’s DNA was present, thereby connecting defendant to a murder and other crimes. So long as the State uti- lized the expert, this court held that defendant is entitled to the discovery of the software’s proprietary source code and related documentation under a protective order. (A-4207-19T4)

9. Lewd gestures to home camera could be violation of TRO State

v EJHIn this appeal, the court considers whether words and ges- tures directed to a domestic violence complainant, by way of a consensually-activated home security camera, violated the stric- tures of the restraining order issued under the Prevention of Do- mestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Although the restraining order did not expressly prohibit defendant from directing remarks to – or making gestures at – his estranged wife via the home security camera, the order expressly prohibited defendant from “having any oral” or “electronic, or other form of contact or communication with [her].” Because defendant di- rected his comments and gesture to his estranged wife, by way of a camera that was specifically activated so that she could observe his parenting time, defendant was aware of the high probability that she would hear his comments and observe his lewd gesture. Accordingly, this court vacated the trial judge’s order and re- manded for reinstatement of the complaint. (A-4228-19T) 

NJ Municipal Court Law Review Summer 2021

 N.J.Municipal Court Law Review

INDEX

1. Supreme Court rules against warrantless seizure of guns while man is in hospital for suicide eval- uation Caniglia v Strom ...............p1 2. TRO reversed where record did not demonstrate need for protec- tion DMR v MKG.........................p1 3. NJ recently made Magic mush- room use or possession now only a disorderly offense, was previously a 3rd degree crime.............................p2 4. Revised underage pot & alcohol law requires notice to parents on first offense ......................................p2 5.Engine on and defendant pee- ing nearby sufficient for operation DWI State v. Lindsey.................... p2 6. TRO issued against man for sent text to 3rd parties C.A.K. v. B.K.p2 7. Bad communication to third party could be grounds for

FRO B.M.O. v. P.M.A.................. p3 8. Handling Drug, DWI and Se- rious Cases in Municipal Court Seminar.............................................p3 9. Miranda must be given to per- sons not yet charged with crime but who would believe not free to leave. State v. Ahmad ...................p4 10. West Windsor Probate & Estate Planning Program ........................p4

1. US Supreme Court rules against warrantless seizure of guns in home while man is in hospital for suicide evaluation Caniglia v Strom
141 S. Ct 1511 Decided May 17, 2021

During an argument with his wife, petitioner Edward Caniglia placed a handgun on the dining room table and asked his wife to “shoot [him] and get it over with.” His wife instead left the home and spent the night at a hotel. The next morning, she was unable to reach her husband by phone, so she called the police to request a welfare check. The responding officers accompanied Caniglia’s wife to the home, where they encountered Caniglia on the porch.

The officers called an ambulance based on the belief that Caniglia posed a risk to himself or others. Caniglia agreed to go to the hospital for a psychiatric evaluation on the condition that the officers not confiscate his firearms. But once Caniglia left, the officers located and seized his weapons. Caniglia sued, claiming that the officers had entered his home and seized him and his firearms without a warrant in violation of the Fourth Amendment. The District Court granted sum- mary judgment to the officers. The First Circuit affirmed, extrapolating from the Court’s decision in Cady v. Dombrowski, 413 U. S. 433, a theory that the officers’ removal of Caniglia and his firearms from his home was justified by a “community caretaking exception” to the warrant requirement.
Held: Neither the holding nor logic of Cady justifies such warrantless searches and seizures in the home. Cady held that a warrantless search of an impounded vehicle for an unsecured firearm did not vio- late the Fourth Amendment. In reaching this conclusion, the Court noted that the officers who patrol the “public highways” are often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents. 413 U. S., at 441. But searches of vehicles and homes are constitutionally different, as the Cady opinion repeatedly stressed. Id., at 439, 440– 442. The very core of the Fourth Amend- ment’s guarantee is the right of a person to retreat into his or her home and “there be free from un- reasonable governmental intrusion.” Florida v. Jardines, 569 U. S. 1, 6. A recognition of the existence of “community caretaking” tasks, like render- ing aid to motorists in disabled vehicles, is not an open-ended license to perform them anywhere. 141 S. Ct 1511 Decided May 17, 2021

2. TRO reversed where record did not demonstrate need for protection DMR v MKG.

Defendant appealed from a final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, based on a predicate act of harassment, N.J.S.A. 2C:33-4(a). This court re- versed because the trial court did not conduct the required legal analysis necessary to enter the FRO under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) 

and the record did not demonstrate plaintiff needed fu- ture protection. Further, our review of the record also disclosed defendant was deprived of due process due to numerous trial irregularities in the remote proceeding, including that defendant had insufficient notice and opportunity to prepare a defense in her case, plaintiff’s witness was not sequestered, plaintiff testified in the wit- ness’s presence with witness coaching plaintiff, and the trial court engaged in inappropriate questioning of de- fendant. (A-4085-19)

3. NJ recently made Magic mushroom use or posses- sion now only a disorderly offense, was previously a 3rd degree crime.

An Act concerning psilocybin and amending N.J.S.2C:35-10 is amended to read as follows:

2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition.
a. It is unlawful for any person, knowingly or purpose- ly, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to:............ or
(5) Possession of one ounce or less of psilocybin is a dis- orderly persons offense.

Previously possession of any amount of psilocy- bin, a Schedule I controlled dangerous substance, was a crime of the third degree. This law would reclassify pos- session of psilocybin as a disorderly persons offense, pun- ishable by up only to up to six months imprisonment, a fine of up to $1,000, or both.

4. Revised underage pot & alcohol law requires notice to parents on first offense

1. a. (1) Any person under the legal age to pur- chase alcoholic beverages, or under the legal age to pur- chase cannabis items, who knowingly possesses without legal authority or who knowingly consumes any alco- holic beverage, cannabis item, marijuana, or hashish in any school, public conveyance, public place, or place of public assembly, or motor vehicle shall be subject to the following consequences:

(a) for a first violation, a written warning issued by

a law enforcement officer to the underage person. The

written warning shall include the person’s name, address,

and date of birth, and a copy of the warning containing this information, plus a sworn statement that includes a description of the relevant facts and circumstances that support the officer’s determination that the person com- mitted the violation, shall be temporarily maintained in accordance with this section only for the purposes of de- termining a second or subsequent violation subject to the consequences set forth in subparagraph (b) or (c) of this paragraph. If the violation of this section is by a person under 18 years of age, a written notification concerning the violation shall be provided to the parent, guardian or other person having legal custody of the underage person in accordance with section 3 of P.L.1991, c.169 (C.33:1- 81.1a).

5. Engine on and defendant peeing nearby sufficient for operation DWI State v. Lindsey Unreported.

Defendant appealed his convictions for driving while intoxicated, N.J.S.A. 39:4-50, refusal to submit to a chemical breath test, N.J.S.A. 39:4-50.4a, and violat- ing implied consent to a chemical breath test, N.J.S.A. 39:4-50.2. Early one morning, after 2 a.m., two troopers saw defendant standing outside a vehicle with flashing lights on, parked on the side of a highway, adjusting his pants. When the troopers activated their vehicle’s emer- gency lights, defendant raised his hands and then walked back to enter into his vehicle. Neither trooper observed defendant driving his vehicle. One trooper testified that defendant’s engine and headlights were on and no one was with defendant. Defendant told the troopers he had a drink hours earlier and pulled over in order to urinate. The troopers administered the standard field sobriety test then arrested defendant. The judge heard testimony from the troopers and convicted defendant. On appeal, the court affirmed the lower court’s decision. Defendant argued there was insufficient evidence to support the convictions. The court noted that while the troopers did not observe defendant operating the vehicle, he clearly had the intent to reenter and operate the vehicle when the troopers happened upon him. The testimony of the troopers also supported the finding that defendant was intoxicated at the time he was arrested. Source NJLJ Dai- ly Briefing 2/23/21 Daily Briefing, an exclusive New Jer- sey State Bar Association member benefit, in partnership with the New Jersey Law Journal. Join the NJSBA for this benefit!

6. TRO issued against man for sent text to 3rd parties C.A.K. v. B.K. unreported

Defendant appealed the FRO entered against

him. Plaintiff alleged defendant committed acts of do- mestic violence by calling her names, berating her and threatening to “ruin” her life in an argument at son’s baseball practice and sending text message to six of her family members. Parties married in 2010, separated in 2018 and were in the process of divorcing. Plaintiff had obtained prior TROs against defendant. Defendant de- nied the allegations except for the text messages to her family.

Family Part judge found plaintiff more credible, found defendant’s actions were in violation of civil re- straints in a prior order and issued the FRO. Defendant argued Family Part judge erred in finding him guilty of harassment based on text messages to third parties. Court found sufficient credible evidence in the record to support the finding that defendant engaged in harass- ment in violation of N.J.S.A. 2C:33-4(a) and that the communications were intended to annoy plaintiff.

Additionally, Family Part judge applied the stat- ute in accord with State v. Burkert, 231 N.J. 257. De- fendant’s argument that his communications were an ex- pression of frustration and not intended to harass lacked sufficient merit to warrant discussion. Source:https://www.law.com/njlawjournal/ almID/1608321864NJA135819T/

7. Bad communication to third party could be grounds for FRO B.M.O. v. P.M.A. unreported

Defendant appealed from the FRO entered against him, based upon a finding that defendant had committed the predicate act of harassment against plain- tiff. The parties dated for approximately two months but continued to communicate with one another for several months thereafter. Plaintiff later filed a domestic violence complaint, alleging defendant had engaged in harassment and cyber harassment by contacting individuals close to plaintiff to inform them of plaintiff’s sexual orientation.

Defendant admitted contacting plaintiff’s moth- er to reveal plaintiff’s sexual orientation but denied tell- ing her that she was a bad mother. Thereafter, plaintiff contacted defendant and asked him to cease contacting plaintiff or his family members. Defendant also con- tacted plaintiff’s employer regarding personal matters between the parties, including information plaintiff had revealed about his job to defendant, which resulted in plaintiff being subject to disciplinary action.

The trial court granted a FRO to plaintiff, find- ing plaintiff’s testimony more credible than defendant’s.

The trial court ruled that a FRO was necessary for plaintiff’s protection, noting defendant’s threat that

he would not “stop until...plaintiff was in jail or lost his job.” On appeal, the court affirmed. The court first held that communications sent to a third party for the purpose of harassing a victim constituted harassment un- der the Prevention of Domestic Violence Act. The court noted that defendant repeatedly committed acts with the stated purpose to annoy and alarm plaintiff by disclosing plaintiff’s sexual orientation to his family members and employer after plaintiff had informed defendant that he did not wish to disclose his sexual orientation to oth- ers and after plaintiff had requested defendant stay out of his life. Source https://www.law.com/njlawjournal/ almID/1619030191NJA275719/

8. Handling Drug, DWI and Serious Cases in Municipal Court Seminar

October 25, 2021 3-6:35

Virtual seminar via Zoom

Speakers: Kenneth A. Vercammen, Esq.,

Past Municipal Court Attorney of the Year

Norma M. Murgado, Esq.

Chief Prosecutor (Elizabeth)&(Woodbridge)

Lorraine Nielsen, Esq.

Municipal Court Prosecutor, Milltown

John Menzel, Esq.
Past Chair, NJSBA Municipal Court Practice SectionYLD Young Lawyer Division Representative tba

-Decriminalization of pot,
-New DWI penalties
-New Expungement Law
-Can new DWI law apply to older DWI charges

For lawyers $150- $190 tuition depending on NJSBA membership
One Constitution Square, New Brunswick, NJ 08901 Phone: (732) 214-8500 · CustomerService@njsba.com

9. Miranda must be given to persons not yet charged with crime but who would believe not free to leave. State v. Ahmad

Pursuant to the facts of this case, a reasonable 17-year-old in defendant’s position would have believed he was in custody and not free to leave, so Miranda warnings were required. It was harmful error to admit

his statement at trial. A-54-19

10. West Windsor Probate & Estate Planning 2021 Update

September 27
Virtual Program 6 pm - GotoMeeting.com

Open to the public, you don’t have to be a Mercer resident to attend. However, registration is required via www.mcl.org

Attorneys and staff may attend

Main Topics:
1. Handling Probate post Covid
2. Dangers If You Have No Will or documents invalid
3. Getting your Estate Planning Documents done when you can’t go into a law office
4. Was goes into a Will
5. NJ Estate Tax eliminated and Inheritance Tax reduced
6. Power of Attorneys recommendations
7. Living Will & Advance Directive for Medical Care
8. Administering the Estate/Probate /Surrogate
9. Avoiding unnecessary expenses and saving your family money Registrants will receive an email link for the GoTo- Meeting session 24 hours before the event.
SPEAKER: Kenneth Vercammen, Esq. Edison, NJ

Author ABA Wills & Estate Administration

Subscribe to the N.J. Municipal Court

Law Review

The NJ Municipal Court Law Review is available for the annual subscription rate of $20.00 per year. We report how changes in revised New Jersey law or courtroom decisions could affect the representation or handling of Criminal, Municipal Court or traffic cases. Receive timely updates on selected revised motor vehicle laws and Court practice. Published by theLawOfficeof KennethA.Vercammen& Assoc. P.C. Send $20.00 payable to Vercammen & Assoc. P.C.. If voucher is sent please include a self stamped, self addressed envelope.

_______________________________

Name:

_______________________________

Address:

 _______________________________

e-mail

Staple your Business card here! Return To:

N.J. Municipal Court Law Review - Kenneth Vercammen, Editor

2053 Woodbridge Avenue- Edison, NJ 08817 

STATE OF NEW JERSEY VS. JOSEPH EHRMAN (18-19 AND 19-19, HUDSON COUNTY AND STATEWIDE) (CONSOLIDATED)(A-4144-19/A-4447-19)

 STATE OF NEW JERSEY VS. JOSEPH EHRMAN (18-19 AND 19-19, HUDSON COUNTY AND STATEWIDE) (CONSOLIDATED)(A-4144-19/A-4447-19)

In these back-to-back appeals, defendant challenged numerous complaint-summonses issued in municipal court by the Jersey City Department of Housing, Economic Development and Commerce for municipal violations involving rental properties owned by various limited liability companies (LLCs) of which defendant was a member. In one appeal, defendant challenged an interlocutory order denying his motion to dismiss twenty-five complaint-summonses issued to him individually and granting the State's cross-motion to amend the complaints to name the LLC that was the record owner instead of him. In the other appeal, defendant challenged the order finding the LLC that was the record owner of the property guilty of violating a municipal ordinance following a trial de novo in the Law Division notwithstanding the fact that the LLC made no appearance through counsel and neither the municipal court nor the trial court inquired on the record to ascertain whether there was a knowing and voluntary waiver before proceeding with the trial.

The court reversed and remanded for entry of an order of dismissal without prejudice of the twenty-five complaint-summonses because they were issued to the wrong defendant and therefore fatally defective and both the municipal court and trial court erroneously relied on a Part IV rule governing civil practice to grant the State's cross-motion to amend. The court also reversed the finding of guilt of the LLC and remanded for a new trial because the absence of an appearance through counsel or a clear waiver of such in a quasi-criminal municipal court prosecution constitutes a violation of constitutional dimension requiring reversal.

STATE OF NEW JERSEY VS. D.F.W. (20-01-0101, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-2220-20)

 STATE OF NEW JERSEY VS. D.F.W. (20-01-0101, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-2220-20)

The court addresses two Criminal Justice Reform Act provisions affecting a detained defendant's speedy trial rights.

First, the Act requires a defendant's release (subject to exceptions and conditions) if trial does not commence after detention of 180 days (not counting excludable time), but the Act directs a court to extend that period upon the return of a superseding indictment. N.J.S.A. 2A:162-22(a)(2)(b)(ii). Here, the trial judge mistakenly added another 180 days to defendant's detention, without considering the differences between the two indictments, and if the prosecutor could have obtained the superseding indictment sooner, as Rule 3:25-4(f) requires. Those two factors require a court to weigh the State's need for an extension against the unfairness to a defendant of granting one. Here, the prosecutor announced nineteen days after the superseding indictment's return that she was ready to proceed to trial. Therefore, an extension beyond nineteen days was unwarranted, because the State did not need more than that to prepare for trial.

Second, the Act requires a defendant's release (subject to conditions) after two years of detention (not counting excludable time attributable only to the defendant) if the prosecutor is not ready to proceed to trial. N.J.S.A. 2A:162-22(a)(2)(a); R. 3:25-4(d). Before the two years elapsed, the prosecutor announced she was ready to proceed to trial and a trial date was set. Then, the Supreme Court suspended criminal jury trials because of COVID-19. Defendant sought release after the two years elapsed during the shutdown, contending the prosecutor could not be ready if the court was not. The trial judge denied release and the court affirms. The two-year limit is measured by the prosecutor's readiness, not the trial court's. Defendant was not entitled to release under the "two-year clock" although, because of the pandemic, no court could conduct the trial the prosecutor was ready to try.

STATE OF NEW JERSEY VS. LAUREN M. DORFF (18-10-0804, CAPE MAY COUNTY AND STATEWIDE) (A-2485-19)

STATE OF NEW JERSEY VS. LAUREN M. DORFF (18-10-0804, CAPE MAY COUNTY AND STATEWIDE) (A-2485-19)

In this appeal the court held that defendant's Fifth Amendment right to counsel was violated during a stationhouse interrogation, reversing the trial court order denying defendant's suppression motion. Detectives at the outset of the interrogation advised defendant of her rights under Miranda v. Arizona, 384 U.S. 436 (1966). During the interrogation, defendant made several references to her need to speak with an attorney. The court held that defendant's statement, "[t]hat's why I feel I might need a lawyer," was sufficient to invoke her right to counsel. A detective then commented, "[w]ell, I mean that's a decision you need to make. . . . But if you didn't do anything [wrong], you certainly don't need to have [an attorney]." Defendant immediately responded that she felt she had not done anything wrong and elected to continue with the interrogation. She eventually made an inculpatory admission.

The court ruled the detective's brief, spontaneous comment undercut the Miranda warnings and impermissibly burdened the Fifth Amendment right to counsel. By suggesting in effect that innocent persons do not need an attorney, the detective implied that a request to terminate the interrogation to speak with counsel would evince a consciousness of guilt, thereby discouraging the assertion of the right to counsel. The court emphasized the State bears the burden to show scrupulous compliance with Miranda, adding that there is no "good faith" exception to the Miranda rule. Rather, the court held, a Miranda violation such as the one that occurred in this case triggers the exclusionary rule whether it was intentional or inadvertent.

State v. Damian Sanchez (084104) (Camden County & Statewide) (A-60

 State v. Damian Sanchez (084104) (Camden County & Statewide) (A-60-19; 084104)

Annese’s lay opinion testimony is rationally based on the witness’s perception and therefore satisfies the first prong of N.J.R.E. 701. Based on Annese’s extensive contacts with defendant, the absence of any other identification testimony, and the quality of the surveillance photograph, the testimony meets the second requirement of N.J.R.E. 701 because it will assist the jury in determining a fact at issue in defendant’s trial. Sanitized to avoid disclosure of defendant’s status as a parolee at the time of his alleged offense, Annese’s lay opinion testimony will not be so prejudicial that its probative value is substantially outweighed by the risk of undue prejudice, and that testimony should not be excluded under N.J.R.E. 403. The Court concurs with the Appellate Division that the trial court abused its discretion when it barred Annese’s lay opinion testimony.

IN THE MATTER OF D.L.B. (0119-XTR-2020-000001, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1035-20)

 IN THE MATTER OF D.L.B. (0119-XTR-2020-000001, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1035-20)

In this appeal, the State challenges the court's denial of a final extreme risk protective order under the Extreme Risk Protective Order Act of 2018, which empowers a court to remove firearms from a person who "poses a significant danger of bodily injury to . . . self or others" by possessing them. N.J.S.A. 2C:58-24(b). Because the trial court did not admit critical evidence, did not require or ensure the State presented information and evidence upon which it relied in support of its petition, and did not make essential findings of fact, the court reverses and remands for further proceedings.

State v. Edwin Andujar (084167) (Essex County & Statewide) (A-6-20;

 State v. Edwin Andujar (084167) (Essex County & Statewide) (A-6-20; 084167)

*Courts, not the parties, oversee the jury selection process. On occasion, it may be appropriate to conduct a criminal history check to confirm whether a prospective juror is eligible to serve and to ensure a fair trial. That decision, though, cannot be made unilaterally by the prosecution. Going forward, any party seeking to run a criminal history check on a prospective juror -- through a government database available only to one side -- must present a reasonable, individualized, good-faith basis for the request and obtain permission from the trial judge. The results of the check must be shared with both parties and the court, and the juror should be given an opportunity to respond to any legitimate concerns raised.

State v. David Chavies (084999) (Mercer County & Statewide) (A-25-20

 State v. David Chavies (084999) (Mercer County & Statewide) (A-25-20; 084999)

NERA mandates that a defendant serve 85% of the sentence "actually imposed" for certain crimes before becoming eligible for parole. N.J.S.A. 2C:43-7.2(b). Allowing defendants to proceed with a Rule 3:21-10(b)(2) motion prior to serving that 85% would circumvent the Legislature’s objectives and its approach to violent crimes. Moreover, the timing of defendant’s motion aside, he failed to meet his burden under Priester since he cannot prove the necessary devastating effect that incarceration had on his health, in addition to various other Priester factors.

Denial of defendant's motion to suppress reversed where no signal did not affect traffic STATE v. ANDREA M. CARMICHAEL

Denial of defendant's motion to suppress reversed where no signal did not affect traffic STATE v.

ANDREA M. CARMICHAEL, a/k/a ANDRE M. CARMICHAEL,

Defendant-Appellant. _____________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2271-18

Argued May 26, 2021 – Decided June 17, 2021

Before Judges Alvarez and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 16-01- 0051.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

PER CURIAM

Defendant Andrea M. Carmichael appeals from a September 24, 2018

judgment of conviction after a jury found him guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), and a judge found him guilty of one disorderly persons offense of possession of marijuana, N.J.S.A. 2C:35-10(a)(4). Defendant focuses his challenge on the denial of his pretrial motion to suppress evidence. Having reviewed the record, and considering the applicable law, and vacate the conviction, we reverse.

We derive the following facts from the testimony at the suppression hearing. At approximately 8:50 a.m. on October 1, 2015, Officer Matthew Principato of the Deptford Township Police Department was patrolling the area around Delsea Drive. Delsea Drive is an undivided roadway with a single lane in the northbound direction that eventually splits. A driver could either continue straight on Delsea Drive, make a slight right turn towards Interstate 295-North, or make a sharp right turn on Cutler Drive. Principato purportedly observed defendant make a slight right turn onto the 295-North ramp without signaling, N.J.S.A. 39:4-126. At the time, defendant was not speeding, nor did he commit any other traffic violations.

2

A-2271-18

Notwithstanding the fact that Principato reviewed his report in anticipation of the suppression hearing, he was unsure whether he was stationary orifhewasdrivingnorthboundonDelseaDrivebehinddefendant'svehicle. In fact, Principato could not recall what make or model vehicle defendant was driving. Principato could not remember whether there was other traffic on the roadway at the time. He had no recollection of whether the windows of defendant's vehicle were open.

Solely on the basis of defendant's failure to signal, Principato conducted a motor vehicle stop. When Principato approached the vehicle, he smelled "a strong odor of marijuana coming from inside the vehicle." Principato made contact with defendant, the sole occupant of the vehicle, who informed him that he did not have his license. After defendant provided his name, Principato went back to his patrol vehicle and relayed this information to dispatch, who informed him that defendant had a suspended license.

After two other officers arrived on scene, Principato again approached the vehicle and asked defendant to step out. He then questioned defendant as to the smell of marijuana emanating from the vehicle, and defendant told Principato that he smokes marijuana on occasion. Principato did not recall if he asked defendant any other questions. Based on the smell and this admission, he

3

A-2271-18

conducted a search of the vehicle, locating four vials of suspected marijuana in the center console. At that point, Principato placed defendant under arrest and, while searching defendant's person, located a fifth vial of suspected marijuana in his pocket. He could not remember in which pocket the fifth vial was located. The vials of suspected marijuana were ultimately sent to the lab for testing and three were determined to be marijuana blended with Phencyclidine (PCP).

On January 20, 2016, a Gloucester County grand jury returned an indictment charging defendant with third-degree possession of CDS. Defendant was also issued a summons charging him with the disorderly persons offenses of possession of fifty grams or less of marijuana and possession with intent to use drug paraphernalia, N.J.S.A. 2C:36-2.1

Defendant filed a motion to suppress, arguing that Principato had no legitimate basis to conduct a motor vehicle stop. After the suppression hearing, the motion judge determined that the parties failed to adequately address the issue of whether defendant's violation of N.J.S.A. 39:4-126 "may" have affected traffic. Therefore, and over defense counsel's objection, the judge re-opened testimony for that limited purpose.

1 In addition, defendant received summonses for two traffic violations. 4

A-2271-18

At the re-opened hearing, the judge, apparently realizing that the prosecutor still did not adduce the requisite testimony to justify the initial motor vehicle stop, questioned Principato extensively on the issue of whether defendant's failure to use his turn signal "may" have affected his movements. We highlight the relevant portion of the colloquy:

[THE COURT:] Officer, the day was October 1[ ] if you'll recall?

[WITNESS:] Yes, sir.

[THE COURT:] Okay. Now reaching back . . . two years from now, do you recall whether it was . . . a weekday or a weekend?

[WITNESS:] I don't recall, Judge, –

[THE COURT:] Okay.

[WITNESS:] – what date – what that date was exactly.

[THE COURT:] Okay. Now a mile south of that location is St. John Academy, correct?

[WITNESS:] Correct.

[THE COURT:] Buses, school buses during the weekday going in and out of that location, correct?

[WITNESS:] Yes, sir.

[THE COURT:] Further down Delsea Drive into Westville you hit Parkview Elementary School?

5

A-2271-18

[WITNESS:] Yes, sir.

[THE COURT:] If it's a school day, 8:50 in the morning is a fairly active time in that area?

[WITNESS:] Yes, sir.

[DEFENSE COUNSEL:] Objection to leading. Sorry, Your Honor.

....

[THE COURT:] Do you find that that's based upon your experience of patrolling that area, that's a fairly well used ramp?

[WITNESS:] Correct. Yes, sir.

[THE COURT:] All right. Now with regard to October 1[ ], . . . you testified . . . that . . . defendant's movement could have impacted your movement?

[WITNESS:] Correct.

[THE COURT:] Describe for me how it could have impacted it.

[WITNESS:] Now if I'm behind the vehicle . . . [and] if he were to continue straight and I were to continue following him straight, he stays straight on Delsea Drive. His movement to get onto the highway and I'm planning on continuing straight or whatever my option would have been, if he suddenly makes that turn . . . onto 295, now I have to maneuver around him without knowing that from his signal.

[THE COURT:] Uh-huh.
6

A-2271-18

[WITNESS:] I'm not saying that happened that day, but it potentially could have happened.

[THE COURT:] What . . . if someone utilizes his signal and you're driving behind them, what benefit is that to you as the driver behind him?

[WITNESS:] Now I know which direction he plans on going. I know that he wants to make that movement onto the highway, into the industrial plaza, or perhaps even maybe into a residential home right there. The signal . . . makes me know what his next course of action is going to be.

....

[THE COURT:] And when . . . an individual does not utilize their signal, and begins to move away from a sort of straight line of movement of traffic, . . . what does that do to you as the driver behind him?

[WITNESS:] Well, I mean, . . . it's affecting my movement as if when I'm going forward, if he's going to go slightly to the right, turn right, or whatever, again, it's going to prevent me from not colliding with the rear of his vehicle –

[THE COURT:] Uh-huh.

[WITNESS:] – potentially.
Following the hearings, the judge issued a nineteen-page written opinion

denying defendant's motion to suppress. The judge found Principato to be a "credible" and "disinterested witness." He concluded that Principato conducted a valid motor vehicle stop after observing defendant turning onto the entrance

7

A-2271-18

ramp of 295-North without signaling. The judge, crediting Principato's testimony, found that the failure to use a turn signal "may" have impacted his movement because it was unclear if "defendant was actually turning or [if] he [was] drifting due to inattentiveness, illness or mechanical issues."

At the conclusion of trial, the jury found defendant guilty of third-degree possession of a CDS. After the jury was discharged, the judge addressed the remaining charges. The judge found defendant guilty of possessing less than fifty grams of marijuana. The judge then dismissed the possession with intent to use drug paraphernalia offense. After the judge granted the State's request to impose a discretionary extended term, N.J.S.A. 2C:44-3(a), defendant was sentenced to six years' imprisonment, subject to a two-year period of parole ineligibility. This appeal ensued.

We apply a highly deferential standard of review to a trial judge's factual findings on a motion to suppress. State v. Gonzales, 227 N.J. 77, 101 (2016) (citing State v. Hubbard, 222 N.J. 249, 262 (2015)). We are bound to uphold the factual findings underlying the trial judge's decision, provided that those findings are "supported by sufficient credible evidence in the record." State v. Scriven, 226 N.J. 20, 40 (2016). We can reject the motion judge's findings "only if they are so clearly mistaken 'that the interests of justice demand intervention

   

8

A-2271-18

and correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "Those factual findings are entitled to deference because the motion judge, unlike an appellate court, has the 'opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Gonzalez, 227 N.J. at 101 (quoting Johnson, 42 N.J. at 161). "We need not defer, however, to a [motion judge's] interpretation of the law." State v. Vargas, 213 N.J. 301, 327 (2013).

On appeal, defendant contends that we should reject the judge's interpretation of N.J.S.A. 39:4-126 "because it would lead to the unintended result that [every] failure to signal a lane change or turn would result in a violation" so long as the officer testifies that the violation "potentially could have affected his driving." Defendant requests that we read into the statute a requirement that a failure to turn actually affects the officer's movements. We decline to do so.2

2 We believe that "[t]he Legislature, not the courts, is best suited to address such policy arguments." Cnty. of Bergen Emp. Benefit Plan v. Horizon Blue Cross Blue Shield of N.J., 412 N.J. Super. 126, 139 (App. Div. 2010); see also State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994) ("[W]here the language of a law is clear, courts are not free to replace it with unenacted legislative intention, for to do so leads the judiciary into undemocratic law making.").

        

9

A-2271-18

"To be lawful, an automobile stop 'must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed.'" State v. Bacome, 228 N.J. 94, 103 (2017) (quoting State v. Carty, 170 N.J. 632, 639-40 (2002)). Reasonable and articulable suspicion is a "lower standard" than probable cause, State v. Stovall, 170 N.J. 346, 356 (2002), and requires a court to evaluate the totality of the circumstances, State v. Alessi, 240 N.J. 501, 518 (2020) (citing State v. Pineiro, 181 N.J. 13, 22 (2004)).

Here, the relevant Title 39 infraction provides:

No person shall . . . turn a vehicle from a direct course or move right or left upon a roadway, or start or back a vehicle unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.

[N.J.S.A. 39:4-126.]
This court recognized in State v. Moss that an officer may rely on N.J.S.A. 39:4- 126 to make a lawful motor vehicle stop even if the only vehicle that may be affected by the driver's failure to make an appropriate turn signal is the police car behind it. 277 N.J. Super. 545, 547 (App. Div. 1994). Indeed, our Supreme

     

10

A-2271-18

Court later held that "other traffic" can include a police vehicle. State v. Williamson, 138 N.J. 302, 304 (1994).

The State "need not establish that the move actually affected traffic," nor does the State need to "prove that a motor-vehicle violation occurred as a matter of law." Ibid. The plain and unambiguous language of N.J.S.A. 39:4-126 does "not project a requirement that a turn movement must affect other traffic but merely that it has the potential of doing so." Moss, 277 N.J. Super. at 547; see also Williamson, 138 N.J. at 304.

Here, the motion judge apparently recognized that Principato's initial testimony was inadequate to establish that defendant's un-signaled turn "may" have affected Principato's movement, which necessitated a second hearing on that limited issue. Even so, we conclude that the record does not support a finding that defendant's failure to utilize his turn signal "may" have affected Principato's movement. Because no other vehicles were apparently on the road when defendant made the turn, the only "other traffic" that could have been affected was Principato's own vehicle. See Williamson, 138 N.J. at 304. Principato's testimony was predicated on nothing more than speculative hypotheticals that had no factual basis in the record. Contrary to the judge's line of questioning, there was no allegation that defendant's vehicle had drifted, that

    

11

A-2271-18

Principato had to unexpectedly brake, or that he had to maneuver to avoid defendant's vehicle in any way. Based on this record, there is simply no basis for concluding that defendant's failure to use his turn signal even had the potential of affecting Principato's movement.

We acknowledge that a judge, pursuant to N.J.R.E. 614(b), may examine witnesses to clarify testimony, aid the court's understanding, elicit material facts, and assure the trial is conducted efficiently. State v. Medina, 349 N.J. Super. 108, 131 (App. Div. 2002). Here, however, the motion judge engaged in a lengthy colloquy with Principato wherein he interposed suggestive and leading questions. A judge must avoid crossing "that fine line that separates advocacy from impartiality. When that occurs there may be substantial prejudice to the rights of one of the litigants." Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958).

To be sure, to prove the officer possessed an articulable and reasonable suspicion for making the vehicle stop, the State was not required to prove a violation of N.J.S.A. 39:4-126 beyond a reasonable doubt. State v. Locurto, 157 N.J. 463, 470 (1999); see also Williamson, 138 N.J. at 304. Notwithstanding the fact that the motion judge found Principato to be credible, the record in this case is devoid of any indication that his movements "may" have been affected

   

12

A-2271-18

due to defendant's failure to use his turn signal. Thus, Principato did not possess a reasonable and articulable suspicion that defendant had committed a motor vehicle violation, and the fruits of the subsequent search must be suppressed.

We are therefore constrained to reverse the order denying defendant's motion to suppress and vacate the judgment of conviction.

13

A-2271-18

Expungement rejected upon state objection after sexual assault and petitioner working in medical field S.M.U. case

 Expungement rejected upon state objection after sexual assault and petitioner working in medical field S.M.U. case

IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDS OF S.M.U. _________________________

RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

NO. A-3555-19

Argued May 26, 2021 – Decided June 17, 2021

Before Judges Whipple and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. M-869- 19.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

PER CURIAM

Petitioner appeals from an April 9, 2020 Law Division order denying

expungement of his criminal records. The judge found petitioner's conviction

was presumptively eligible for expungement but denied the application because the need for the availability of the records outweighed the need for expungement under N.J.S.A. 2C:52-14(b). We affirm.

Petitioner raises the following arguments on appeal:

POINT ONE: PETITIONER'S SATISFACTION OF ALL [N.J.S.A.] 2C:52-2 REQUIREMENTS MADE HIS RECORDS PRESUMPTIVELY ELIGIBLE FOR EXPUNCTION

POINT TWO: THE [TRIAL COURT] IMPROPERLY SHIFTED THE BURDEN OF PROOF (not raised below)

POINT THREE: THE [TRIAL COURT] NEVER CONDUCTED THE WEIGHING PROCESS THAT [N.J.S.A.] 2C:52-14(b) REQUIRED

POINT FOUR: THE [TRIAL COURT] DISREGARDED THE LEGISLATIVE MANDATE CONCERNING CONSTRUCTION OF CHAPTER 52

Petitioner's charges stem from a 2007 incident when he worked at Robert Wood Johnson University Hospital (RWJUH) in the emergency department, where he would transport patients. A female patient, C.G.,1 was admitted to the emergency department after an apparent suicide attempt wherein she drank three bottles of wine and ingested a bottle of Seroquel, arriving at RWJUH "semi-conscious."

1 We use initials to protect the identity of the victim. R. 1:38-3(c)(12). 2

A-3555-19

Petitioner stated to the police that he "wheeled" C.G. into the emergency room from her car. He was with her while she was treated by the triage nurse, who classified her as emergent due to her condition. Then, he moved C.G. to a separated area of the emergency department and closed the curtain. He indicated that while C.G. was under his care, he kissed her lips, touched her breasts, kissed her breasts, and inserted the tip of his finger into her vagina. And at one point during the police interview, petitioner described C.G. as "[n]ot in the right state of mind."

Petitioner was arrested during an attempt to meet C.G. a second time, outside of the hospital, and he was charged with sexual assault for the incident in the hospital, N.J.S.A. 2C:14-2(a)(7). A grand jury indicted him for fourth- degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b), on June 22, 2007. Petitioner pleaded guilty to fourth-degree criminal sexual contact and was sentenced to five years' probation on August 17, 2007. He filed a petition for expungement on November 6, 2019, supported by a psychological evaluation prepared by Philip Witt, Ph.D. After considering petitioner's submission and the State's response, Judge Robert J. Jones, Jr. denied the petition on April 9, 2020.

3

A-3555-19

The Witt report offered the opinion that petitioner "is unlikely to present a danger to the community. The isolated nature of his offense, combined with his stable mature adjustment during the past [thirteen] years support this opinion." Also found in the presentence report, and Dr. Witt's report, was information that petitioner had graduated from Rutgers University and pursued coursework that would allow him to attend medical school. Petitioner had also volunteered at a rescue squad as a certified emergency medical technician (EMT). He never completed medical school, and according to his attorney, abandoned any plan to become a doctor. An updated report from Dr. Witt indicates petitioner currently manages clinical research projects and is proud that he has done well in his job. He is married and owns a three-family home, where he lives in one unit and rents the others.

Individuals who apply for expungement have an initial burden to satisfy the requirements of the expungement statute by a preponderance of the evidence. In re D.H., 204 N.J. 7, 18 (2010). Petitioners must present a verified petition and certain accompanying statements. See generally N.J.S.A. 2C:52-7 to -8. Once petitioners satisfy their burden, the burden "shifts to the State to 'demonstrate[] by a preponderance of the evidence that there is a statutory bar or that the petition should not be granted.'" D.H., 204 N.J. at 18

 

4

A-3555-19

(alteration in original) (quoting In re G.R., 395 N.J. Super. 428, 431 (App. Div. 2007)). Section 14 of the statute outlines grounds for the denial of an expungement petition. N.J.S.A. 2C:52-14. Those grounds include the following: if "[a]ny statutory prerequisite . . . is not fulfilled or there is any other statutory basis for denying relief," id. at (a); and if "[t]he need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided in" the statute, id. at (b). If the State does not meet its burden, the petitioner is presumptively entitled to expungement. D.H., 204 N.J. at 18; In re Expungement of the Crim. Record Belonging to T.O., 244 N.J. 514, 524-25 (2021). Here, the court found petitioner was presumptively eligible, so the burden shifted to the State.

The State objected to expungement, arguing that employers in the community, more specifically the medical community, should know what petitioner did. It argued petitioner had wanted to become a doctor, that he abused a position of trust, and that medical institutions and similar institutions should be able to know about his crime if he applies for jobs. According to the State, the need to make his criminal history records available outweighs the desirability of an expungement because of petitioner's lifelong interest in a medical profession. The State also argued that medical employers, who might

  

5

A-3555-19

hire petitioner for a position in patient care, should be able to consider his breach of trust when deciding whether to hire him. The court agreed and determined the State had met its burden of showing by a preponderance of evidence that the need to keep petitioner's conviction records available outweighs the desirability to have him free from disabilities created by his conviction. The court entered an order denying the petition on April 9, 2020. Judge Jones stated:

The Legislature recognizes the special role healthcare providers play in people's lives. For example, healthcare professionals, including doctors, dentists, nurses, therapists, pharmacists, and a host of others, must undergo criminal background checks. N.J.S.A. 45:1-28 to 1-29. Even those only assisting in patient care are required to undergo these checks. See N.J.S.A. 26:2H-83 ([nurses' aides], personal care assistants); N.J.S.A. 45:11-24.3 (home health aides). When people receive healthcare, they place themselves in vulnerable positions - and they trust the caregiver will not take advantage of that vulnerability.

[Petitioner] took advantage of someone while working at a hospital. He's expressed a lifelong interest in healthcare, and he even attended medical school to become a doctor, albeit unsuccessfully. He volunteered for a rescue squad as an EMT before committing the crime for which he seeks an expungement, and even his current career managing clinical research projects derives from his interest in science and medicine.

6

A-3555-19

Yes, [petitioner's] attorney says he no longer plans to become a doctor. But given his career choice nothing stops him from applying for positions that involve patient care or patient contact.

....

It comes down to this: [w]hen I weigh the arguments, I find that the State has met its burden. That is, the State has proven by a preponderance of the evidence that the need to make [petitioner's] criminal-sexual-contact-conviction records available outweighs the desirability of having him freed from any disabilities created by that conviction. His application is denied.

This appeal followed.

We have considered petitioner's contentions in light of the record and applicable law. We discern no abuse in the exercise of the court's discretion. We are convinced petitioner's substantive claims were fully and correctly addressed for the reasons given by the judge and require no further discourse. R. 2:11-3(e)(1)(E).

7

A-3555-19