Criminal Law- Recent Cases NJ Kenneth Vercammen Law Office. 732-572-0500 Edison, NJ: Fall 2021 Municipal Court Law Review

Fall 2021 Municipal Court Law Review

1. Partially Obstructed License Plate Does Not Justify Car stop State v. Roman-Rosado

2. Complete covering of Garden State on plate permitted stop State v. Carter

3. Member of LLC can’t be charged with ordinance violation State v Ehrman

4. Police can’t audiotape prisoner phone calls without written notice State v. McQueen

5. Miranda not complied with on 2^nd interrogation State v Dorff

6. No hot pursuit into house for petty offense Lange v. California

7. Sealing of Certain Marijuana or Hashish Records Pursuant to N.J.S.A. 2C:52-5.2 Directive 08-21

8. Process to obtain Certification of Expungement in Pot cases

9. OPRA could apply to criminal & DWI complaints Simmons v. Mercado & City of Millville

10. Cassidy cases require a PCR petition online

1. Partially Obstructed License Plate Does Not Justify Car stop

State v. Roman-Rosado

To avoid serious constitutional concerns, the Court interprets the statute narrowly and holds that N.J.S.A. 39:3-33 requires that all markings on a license plate be legible or identifiable. If a frame conceals or obscures a marking in a way that it cannot reasonably be identified or discerned, the driver would be in violation of the law. In practice, if a registration letter or number is not legible, the statute would apply; but if a phrase like "Garden State" is partly covered but still recognizable, there would be no violation.

A-67-19

2. Complete covering of Garden State on plate permitted stop

State v. Carter

3. Member of LLC can’t be charged with ordinance violation

State v Ehrman

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. (A-4144-19/A-4447-19

4. Police can’t audiotape prisoner phone calls without written notice State v. McQueen

The right of privacy, and particularly privacy in one’s telephone conversations, is among the most valued of all rights in a civilized society. McQueen’s custodial status in the stationhouse did not strip him of all constitutional protections. Article I, Paragraph 7 broadly protects the privacy of telephone conversations in many different settings. McQueen and Allen-Brewer had a reasonable expectation of privacy in their conversation in the absence of fair notice that their conversation would be monitored or recorded. The recorded stationhouse telephone conversation was not seized pursuant to a warrant or any justifiable exigency and therefore must be suppressed. A-11-20

5. Miranda not complied with on 2^nd interrogation

State v Dorff

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, "[that'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. A-2485-19)

6. No hot pursuit into house for petty offense

Lange v. California 594 US __ (2021) The US Supreme Court ruled that hot pursuit of a person who has committed a petty offense (in this case, DWI) does not justify a categorical rule that will permit police to make a home entry into the suspect's residence without a search warrant

7. Sealing of Certain Marijuana or Hashish Records Pursuant to N.J.S.A. 2C:52-5.2 Directive 08-21

This Directive promulgates the process for sealing records from public access on order of the court at the time of sentencing for a criminal conviction or juvenile adjudication of certain marijuana or hashish offenses in accordance with the statutory amendments to N.J.S.A. 2C:52-5.2, and the marijuana decriminalization laws enacted by L. 2021, c. 19. Additionally, Attorney General Law Enforcement Directive #2021-1, “Directive Governing Dismissals of Certain Pending Marijuana Charges” (issued February 22, 2021), instructs prosecutors to seek dismissal of certain pending marijuana-related charges against either a juvenile or an adult where the conduct occurred on or before February 22, 2021.

The court at the time of sentencing shall order the records of the courts, probation services, and law enforcement agencies to be sealed from the public for a criminal conviction or juvenile adjudication that solely includes the following offense(s):

• N.J.S.A. 2C:35-5(b)(12)(b)1 – distribution of marijuana in a quantity of one ounce or less or hashish in a quantity of five grams or less; or

• N.J.S.A. 2C:35-5(b)(12)(b) and a violation of N.J.S.A. 2C:35-7 on or within 1000 feet of school property and/or a violation of N.J.S.A. 2C:35- 7.1 on or within 500 feet of a public housing facility, public park, or public building; or

• • N.J.S.A. 2C:35-10(a)(3)(b) – possession of marijuana in a quantity of more than six ounces or hashish in a quantity of more than 17 grams.

This Directive also promulgates three revised forms and two new forms for use effective immediately

Additionally, the Supreme Court has amended Rule 1:38-3 (“Court Records Excluded from Public Access”) and Rule 1:38-11 (“Sealing of Court Records”) by order dated February 5, 2021 to conform to the statutory requirements to seal these records from public access upon criminal conviction or juvenile adjudication.

System enhancements have been made in the Judiciary’s computerized systems to indicate the cases that have been ordered sealed from public access pursuant to N.J.S.A. 2C:52-5.2. Information concerning these modifications has been previously sent to Judiciary staff under separate cover. Modifications have also been made to remove information concerning sealed cases in the Public Safety Assessment (PSA) risk factors in accordance with N.J.S.A. 2C:52-5.2(d), which provides that these records shall not be considered whenever the Pretrial Services Program conducts a risk assessment on an eligible defendant for the purpose of making recommendations to the court concerning an appropriate pretrial release decision under N.J.S.A. 2A:162-15 et seq. Additionally, cases that have been ordered sealed pursuant to this statute will not be listed in the “Court History” section of the Presentence Investigation Report in accordance with N.J.S.A. 2C:52-5.2(d), which prohibits use of this information for sentencing purposes in any other case.

Operationally, the municipal courts have not been part of the comprehensive enforcement program (CEP). Currently, there is no provision in the system to move cases through the CEP and civil judgment process for municipal court matters. Therefore, the municipal courts will continue their current collection process for cases that are ordered sealed.

More info at

https://www.njcourts.gov/attorneys/assets/directives/dir_08_21.pdf

8 Process to obtain Certification of Expungement in Pot cases See https://www.njcourts.gov/notices/2021/n210830a.pdf?c=ptW

9 OPRA could apply to criminal & DWI complaints Simmons v. Mercado & City of Millville

Because Millville MPD officers create the information contained in the CDR-1s, the CDR-1s fall well within OPRA’s definition of a government record. Further, AADARI’s records request is narrowly tailored and would not constitute research beyond OPRA’s scope.

Because Millville City officers create the information contained in the CDR-1s, the Complaint Summons CDR-1s fall well within OPRA’s definition of a government record. Further, AADARI’s records request is narrowly tailored and would not constitute research beyond OPRA’s scope.

Thus, regardless of who maintains the files, the fact that police “makes” the CDR-1s means that it can be called upon to disclose those government records. Nothing in the text of OPRA or Rule 1:38 or the Court’s jurisprudence suggests that information cannot be both a court record and a government record. Indeed, the language of the statute that defines a government record as one that has been “made, maintained, or kept on file” itself suggests the possibility that different government entities, working cooperatively, could be simultaneous custodians of the same information. The statutory language presupposes that there may be more than one proper place where a requestor can submit an OPRA request. That the Judiciary might maintain on its servers the information that MPD made does not absolve MPD of its obligation to produce that information pursuant to a proper OPRA request made to MPD.

10 Cassidy cases require a PCR petition online

REVIEW OF DWI CONVICTIONS INVOLVING NOT PROPERLY CALIBRATED EQUIPMENT (STATE V. CASSIDY)- WEBSITE TO FACILITATE SUBMISSION OF REQUESTS TO REVIEW A DWI CONVICTION

The Supreme Court in State v. Cassidy. 235 NJ. 482 (2018) found that in some driving while intoxicated (DWI) cases, some Alcotest machines were not properly calibrated and that the test results from those machines thus could not be used to convict a defendant of DWI. The Judiciary was notified by the Office of the Attorney General that there were thousands of DWI cases in which defendants' breath samples were procured using such improperly calibrated machines. As a result, more than 13,000 DWI convictions from between 2008 and 2016 are eligible for review, with most of those cases in four counties (Middlesex, Monmouth, Somerset, Union).

This is to advise that the Judiciary has created a webpage to facilitate the submission of post-conviction petitions for relief by any defendant affected by the Court's Cassidy decision (https://www.njcourts.gov/courts/mcs/cassidy.html).

On July 14, 2021, Superior Court Judge Robert A. Fall, serving on recall and designated by the Court as special master for the statewide management of these cases, sent a notice to those 13,000+ defendants potentially affected by the Cassidy decision. That notice advised defendants how to file a petition for review of their case and, if needed ,how to request appointment of a public defender. The forms for those steps are available on the website. Initial case management conferences in those matters will begin in August.

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Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's award winning book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association. As the Past Chair of the Municipal Court Section he has served on its board for 10 years.

Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.

Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine. He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.

For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.

His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings. Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.

Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4^th degree black belt.

KENNETH VERCAMMEN

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