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
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