Criminal Law- Recent Cases NJ Kenneth Vercammen Law Office. 732-572-0500 Edison, NJ: Spring Municipal Court Law Review 2022

Spring Municipal Court Law Review 2022

1. Mere report of black males robbing 7-11 not sufficient to stop car with black males in it State v Nyema

2. TRO not violated where communication sent prior to issuance of TRO State v. J.T.

3. Police interrogators must conduct an appropriate inquiry into a suspect’s ambiguous invocation of the right to counsel and stop questioning. State v. Gonzalez

4. Supreme Court rejects protective sweep of building where defendant handcuffed State v Radel

5. Protective sweep of home permitted where very real and potential danger State v. Terres

6. Disputed DNA test did not pass Frye Test for Admissibility State v Rochat

7. Free Office Space & Mentor Program Transitional /New Atty

8. Arrested driver who asked police to retrieve his items from improperly parked car losses motion to Suppress here State v. Tucker

9. Suspension of DL by MVC after 7 plus violations not arbitrary, capricious or unreasonable Richardson v. NJ Motor Vehicle

1. Mere report of black males robbing 7-11 not sufficient to stop car with black males in it State v Nyema

The only information the officer possessed at the time of the stop was the race and sex of the suspects, with no further descriptors. That information, which effectively placed every single Black male in the area under the veil of suspicion, was insufficient to justify the stop of the vehicle and therefore does not withstand constitutional scrutiny.

The police received a dispatch transmission that a 7-Eleven store had been robbed by two black males, one of whom had a gun. A subsequent dispatch indicated the two men fled on foot. The police officer was familiar with the 7-Eleven store and responded.

Police officers seized the evidence following an investigatory stop of an automobile in which defendant was a passenger. The arresting officer testified he stopped the car because he was advised two black men had robbed a store. The officer used a spotlight mounted to his car to illuminate the interiors of passing vehicles as he traveled to the store. In one car, he observed three black men who did not react to the light. The officer stopped the car based on those observations. NJ Supreme Court (A-39-20)

2. TRO not violated where communication sent prior to issuance of TRO State v. J.T.

On January 24, 2020, defendant ordered a floral arrangement that was to be delivered to his former girlfriend on February 13, 2020. One week after the order was placed, a temporary restraining order (TRO) was entered against defendant, prohibiting him from having contact with his former girlfriend. Defendant made no effort to cancel the delivery, which did not occur until after the entry and service of the TRO on defendant. Defendant was charged with contempt for violation of a TRO entered pursuant to the Prevention of Domestic Violence Act.

Following trial, it was determined that the State was not able to satisfy its burden of proving beyond a reasonable doubt that defendant "purposely or knowingly" violated the TRO, and the complaint was dismissed. Since the TRO had not yet been entered at the time the defendant ordered the flowers, he could not have possessed the requisite mental state for a finding of contempt.

Similarly, the argument that defendant had an affirmative obligation to recall the communication initiated prior to his having been served with the TRO was rejected, because the TRO provided no notice of any such requirement. (FO-03-0454-20)

3. Police interrogators must conduct an appropriate inquiry into a suspect’s ambiguous invocation of the right to counsel and stop questioning. State v. Laura Gonzalez

Defendant’s question about the attorney was an ambiguous invocation of her right to counsel. Under settled New Jersey law, see, e.g., State v. Reed, 133 N.J. 237, 253 (1993), the detective was required to cease questioning and clarify whether defendant was requesting counsel during the interview. Because the State played defendant’s recorded statement at trial and read the apology note -- written at the detective’s suggestion -- to the jury, the error in failing to suppress that evidence was harmful. The Court also finds plain error in the trial court’s admission of certain challenged evidence, and it provides guidance for the proceedings on remand. Ambiguous request for counsel required suppression of written admission to hitting child A-47-20;

4. Supreme Court rejects protective sweep of building where defendant handcuffed State v Radel

5. Protective sweep of home permitted where very real and potential danger State v. Terres

When an arrest occurs outside a home, the police may not enter the dwelling or conduct a protective sweep in the absence of a reasonable and articulable suspicion that a person or persons are present inside and pose an imminent threat to the officers’ safety. This sensible balancing of the fundamental right to privacy in one’s home and the compelling interest in officer safety will depend on an objective assessment of the particular circumstances in each case, such as the manner of the arrest, the distance of the arrest from the home, the reasonableness of the officers’ suspicion that persons were in the dwelling and likely to launch an imminent attack, and any other relevant factors. A self-created exigency by the police cannot justify entry into the home or a protective sweep. Here, a protective sweep was not warranted in the Radel case but was constitutionally justified in the Terres case. in Terres, the officers faced unexpected and fast-evolving circumstances that signaled danger and the need for prompt action to safeguard their lives. The officers received a warning to be careful and that another male was with Fuller in Terres’s trailer -- a clear signal of a potential threat; they had been told that Fuller was staying in a building where loose bullets and shell casings were observed; Fuller fled the trailer when he was arrested within feet of the open front door; and the situation was fluid and not stabilized as Trooper Hershey attempted to retrieve a hypodermic needle from Fuller’s pocket. Those specific and articulable facts in Terres provided a reasonable basis for entry into the home based on a very real and potential danger. A-45-20 NJ Supreme

6. Disputed DNA test did not pass Frye Test for Admissibility State v Rochat

This appeal presents an issue of first impression—whether DNA evidence obtained from extremely small amounts of DNA through a technique known as low copy number (LCN) DNA testing, and in one instance, by using a proprietary Forensic Statistical Tool (FST) software program, which defendant contends are not generally accepted in the relevant scientific community, was improperly admitted at trial.

Defendant was indicted for the murder of a woman he had recently visited, that worked at his father's business. Her partially burned body was found in her residence. She died from blunt force head injuries. As part of their investigation, detectives obtained DNA samples from defendant, his apartment, a condominium that he had access to, his car, and the victim's fingernails. Samples from the kitchen of the apartment tested positive for blood. The DNA samples were sent to a laboratory DNA analysis.

The trial court denied defendant's motion for a Frye1 hearing to determine the admissibility of the LCN DNA test results. At trial, the State's experts testified that DNA samples from the kitchen was consistent with the victim's DNA. Analysis of a second set of DNA samples showed a mixture of DNA from two people, one of whom was the victim. DNA samples from the victim's home did not test positive for defendant's DNA, but samples taken from the victim's fingernails did. Samples from defendant's apartment and car did not test positive for the victim's DNA. Defense experts opined that the LCN DNA testing and FST were neither reliable nor generally accepted in the relevant scientific community. Defendant was found guilty of the murder. 1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

On appeal, the court remanded the case for a Frye hearing to determine the admissibility of the disputed DNA evidence under the standards adopted in State v. Harvey, 151 N.J. 117 (1997), and retained jurisdiction.

Following a multi-day Frye hearing, at which numerous expert witnesses testified, the trial court determined the State clearly established that the LCN DNA testing technique and FST were generally accepted in the relevant scientific community and ruled the DNA analysis was admissible.

The court rejected the trial courts determinations, concluding that the State did not clearly establish that the LCN DNA testing technique and FST were generally accepted in the relevant scientific community. Therefore, the DNA evidence derived by using that technique and software was inadmissible. Noting that the remaining evidence was not overwhelming and recognizing that DNA evidence is powerful and compelling, the court determined that admission of the disputed DNA evidence raised a reasonable doubt that the jury was led to a verdict it otherwise might not have reached. Because the error was not harmless, the court reversed defendant's conviction and remanded for retrial. A-0103-17

7. Free Office Space & Mentor Program Transitional /New Atty

Kenneth Vercammen’s Law Office has a space sharing opportunity for new lawyer or recent Transitional attorney to get experience and go to court and learn NJ Law office procedures.

This is a mentoring experience where you can learn NJ Law Office Procedure. Starting a practice but don’t want potential clients to know where you live or have clients into your home?

Gain experience while working on Bar Association projects, in a busy law office and dealing with real clients. Students interested in a career in law learn law office procedures, preparing legal correspondence, and assisting clients. This is a live, in person opportunity, not virtual.

        Attorney will be provided with use of desk, plus if needed additional private office space in furnished basement to start their practice, rent-free. They can see clients in first floor office rooms. In return they will handle municipal court appearances, Telephone communications with courts, prosecutors, clients, etc, Will signings and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week.
-Call Courts to follow up on Letter of Representation and scheduling of hearings
- Prepare timesheets for NJ Attorney General Fatal Accident cases
-Call Police Departments to follow up on discovery
-Call clients and remind them of hearing dates and what to do
- Update Criminal and Civil blogs with recent cases
Go to court and get court experience. Excellent opportunity to jump-start your career. You will get to represent people in Municipal Courts in Middlesex, Union and Monmouth County and meet the top Prosecutors and Judges. Must be admitted in NJ and have a car.
Learn to interview potential Municipal Court/Criminal clients. Also learn to draft Wills and work on Litigation files. Attorney may also help provide legal assistance to members of prepaid legal plans clients. Follow up contact calls with clients, courts, prosecutors and bar associations.
Excellent mentoring position for the right attorney. Are you hardworking and aggressive? Visit our website: www.njlaws.com to learn about our office. More details at www.njlaws.com/lease.htm
      If interested, email or mail a resume and cover letter.
KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW
2053 Woodbridge Ave. Edison, NJ 08817
vercammenlaw@njlaws.com

     The following is included with office use:
Desk space

Reception room for clients and use as Bona Fide Office
You can copy and use our Complaints, Motions, Form Letters and Pleadings.
Use our marketing books, marketing CDs, Criminal, Municipal Court and Elder law audiotapes and video library now located in basement
Use of our computer forms Motions, Complaints, and Form letters
More info at www.njlaws.com/lease

8 Arrested driver who asked police to retrieve his items from improperly parked car losses motion to Suppress here State v. Tucker

Defendant appealed from the denial of his motion to suppress evidence in his drug charge case. Two police officers on routine patrol passed defendant driving in the opposite direction and noticed that he was not wearing a seatbelt. The officers then began following defendant's vehicle but did not activate their lights and sirens. Defendant ultimately drove to a residence that was not his and parked in the driveway. The officers caught up to defendant and initiated a traffic stop because his vehicle was blocking the public sidewalk. The officers determined that defendant's driving privileges in New Jersey had been suspended and that he had an arrest warrant for failure to appear in court. Defendant was arrested and because he could not arrange for someone to retrieve his vehicle, he asked the officers to grab some personal items. However, when the officers reached into the vehicle to retrieve the items, they found glass vials and sealed zipper bags that contained cocaine and heroin.

At trial, the trial court denied defendant's motion to suppress, ruling that he had consented to a limited search of the vehicle to retrieve his personal items, during which the officers discovered the drugs in plain view. The trial court further held that the drugs would have been found under the inevitable discovery doctrine as the vehicle was to be towed. On appeal, the court affirmed defendant's conviction. The court agreed that defendant had asked the officers to retrieve items from his vehicle, while the officers would not have entered the car absent defendant's request. Unreported Source Daily Briefing 1/24/22

9 Suspension of DL by MVC after 7 plus violations not arbitrary, capricious or unreasonable Richardson v. NJ Motor Vehicle Comm

Petitioner appealed the suspension of his driver's license. Petitioner received his probationary driver's license in 2018. Since receiving his license, he committed seven motor vehicle violations. After his first three violations, he was required to complete a probationary driver program. He committed three more violations while enrolled in the program. He committed another violation three months after the program ended and his license was suspended. Petitioner argued Motor Vehicle Commission failed to consider that his license suspension created a hardship, which constituted good cause for warranting a deviation from N.J.S.A. 39:5-30.10. Court found MVC properly weighed and balanced petitioner's circumstance with the mandated suspension period and its decision was not arbitrary, capricious or unreasonable. Unreported Source Daily Briefing 11-10-21

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