Spring Mun law rev 2023

Spring Mun law rev 2023 1. Supreme Court changes to adapt the Daubert standard to make it easier for Scientific evidence to be admitted State v. Olenowski 2. If someone had a conditional discharge on a pot charge which has now been “removed”, person can have another CD or PTI State v. Gomes 3.Officer could not walk onto driveway to look into hole in porch State v Ingram 4.Suppression where dispatcher just assumed robber was black State v Scott 5. Interlock issues post plea are to be resolved by court, not MVC State v. Coviello 6. Wills for Attorneys and Retirement/Disability Planning 6-12 Unreported cases 1. Supreme Court changes to adapt the Daubert standard to make it easier for Scientific evidence to be admitted State v. Olenowski, The Supreme Court released an opinion in State v. Olenowski that dramatically changed New Jersey law. Prior to the decision, a court's evaluation of the scientific reliability of novel scientific devices or procedures had been decided under the century old decision in Frye v. United States, 293 F. 1013 (D.D. Cir. 1923). State v. Michael Olenowski remanded to special master. In this opinion, the Court reconsidered the appropriate standard to evaluate the admissibility of expert evidence under N.J.R.E. 702. For decades, the admissibility of expert evidence in New Jersey criminal cases has been analyzed under the test outlined in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). That standard turns on whether the subject of expert testimony has been “generally accepted” in the relevant scientific community. The Court has moved away from the Frye test over time, shifting in civil cases toward an approach that focuses directly on reliability by evaluating the methodology and reasoning underlying proposed expert testimony -- a standard similar to the one outlined in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). After an extensive evidentiary hearing before a Special Master, the Court asked the parties and amici here to submit their views on whether to depart from Frye and adopt the principles of Daubert in criminal cases. The Court granted certification in this matter, 236 N.J. 622 (2019), to decide whether the testimony of a certified Drug Recognition Expert (DRE) is admissible at trial and, if so, under what circumstances. DREs apply a twelve-step protocol to assess whether a person is impaired. At trial, the prosecutor introduced DRE testimony to prove that defendant had been driving while under the influence. The Municipal Court Judge convicted defendant; the Superior Court upheld the use of DRE evidence under Frye and affirmed; the Appellate Division also affirmed. After oral argument, the Court found the record inadequate to test the validity of DRE evidence and appointed the Honorable Joseph F. Lisa as a Special Master to conduct a plenary hearing. 247 N.J. 242, 244 (2019). Judge Lisa concluded in a 332-page report that DRE evidence should be admissible under the Frye standard. Counsel discussed error rates associated with DRE evidence in their briefs to the Special Master and the Court. But although error rates are expressly considered under Daubert, they are not directly covered by Frye’s general acceptance standard. In light of that, the Court asked the parties and amici to brief “whether this Court should depart from Frye and adopt the principles of Daubert in criminal cases.” HELD: Frye permits judges to consider only whether the subject of the testimony has been “generally accepted” in the relevant scientific community; Daubert empowers courts to directly examine the reliability of expert evidence and consider a broader range of relevant information. The more restrictive standard in Frye is also difficult to apply to certain types of expert evidence, including novel areas. For those and other reasons, going forward, the Court adopts principles similar to the standard outlined in Daubert to examine the admissibility of expert evidence in criminal and quasi-criminal cases. 1. N.J.R.E. 702 governs the admissibility of expert testimony. To satisfy the rule, it is well-settled that the proponent of expert evidence must establish three things: (1) the subject matter of the testimony must be beyond the ken of the average juror; (2) the field of inquiry must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the testimony. The key issue in this appeal centers around the second requirement: whether the proposed testimony is reliable. 2. In criminal cases up until now, the Court has used the Frye standard to assess reliability. Decided a century ago, Frye involved a defendant’s effort to introduce evidence of a blood pressure test that could purportedly reveal whether a person was telling the truth. 293 F. at 1013. The Frye court’s analysis appears in a single paragraph of its two-page ruling and states in part that, “while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Id. at 1014 (emphasis added). The opinion does not cite any legal authority. The “general acceptance” standard stems from the underscored language and can be difficult to satisfy. 3. In civil cases, to determine the reliability of expert testimony, the focus today is on the methodology and reasoning underlying the evidence. That approach is guided by a non-exhaustive list of factors outlined in Daubert. The Court was in the vanguard of courts to shift from exclusive reliance on Frye’s “general acceptance” standard to a methodology-based approach in civil cases, and it began to do so even before Daubert, in which the United States Supreme Court rejected the Frye standard and held that Frye had been “superseded by the adoption of the Federal Rules of Evidence.” 509 U.S. at 587. Daubert outlined a new methodology-based standard to determine the admissibility of proffered expert scientific testimony: “[Whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Id. at 592. That “entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and . . . properly can be applied to the facts in issue.” Id. at 592-93. Finally, Daubert provided a non-exclusive four factors -- commonly referred to as the “Daubert factors” -- to help courts apply the new standard. Id. at 593-94. 4. In 2018, the New Jersey Supreme Court adopted the Daubert factors -- with some qualifications -- to help guide trial courts as they fulfill their role as gatekeepers and make decisions about the reliability of expert testimony in all civil cases. The Court specifically found that the Daubert factors “would provide a helpful -- but not necessary or definitive -- guide” for trial courts in New Jersey. In re Accutane Litig., 234 N.J. 340, 398 (2018). But the Court declined to declare New Jersey “a Daubert jurisdiction” and did not “embrace the full body of Daubert case law” from other “state and federal courts.” Id. at 399. The Court also acknowledged that, despite its broadened approach in civil cases, it had “retain[ed] the general acceptance test for reliability in criminal matters” “to date.” Ibid. 5. The Court has applied the Frye standard to evaluate various devices, scientific tests, and other kinds of evidence. Despite its longstanding use, Frye has posed certain difficulties and has been the subject of criticism. An expert opinion that is not reliable is of no assistance to anyone. But instead of directing judges to examine actual measures of reliability -- like the soundness of the methodology used to validate a scientific theory or technique, the strength of the reasoning underlying it, and the accuracy of the theory or technique in practice -- Frye only permits judges to consider the views of individuals in the relevant field. As a result, Frye has been criticized as “both unduly restrictive and unduly permissive” because “it excludes scientifically reliable evidence which is not yet generally accepted, and admits scientifically unreliable evidence which although generally accepted, cannot meet rigorous scientific scrutiny.” State v. Coon, 974 P.2d 386, 393-94 (Alaska 1999). In Accutane, the Court observed that Frye is “unsatisfactorily constricting” as a way to assess the reliability of “novel or emerging fields of science.” 234 N.J. at 380. Daubert likewise described Frye’s approach as “rigid,” “austere,” and “uncompromising.” 509 U.S. at 588-89, 596. 6. Frye also presents a difficult threshold question: identifying the relevant scientific community in which general acceptance must be measured. In some instances, scientific evidence may be studied by multiple scientific communities or none at all. Here, Judge Lisa observed that the relevant scientific communities -- medicine and toxicology -- were largely unfamiliar with the DRE protocol. And those most familiar with the protocol -- traffic safety engineers, law enforcement professionals, and DRE coordinators and officers -- were not scientists. Judge Lisa therefore found that this case “is not a typical fit for the Frye paradigm.” Frye’s reasoning has come under criticism as well. The decision offered no explanation or authority for requiring general acceptance. Plus the Frye test has been superseded by the Federal Rules of Evidence and is “incompatible” with the “liberal thrust” of those rules. Daubert, 509 U.S. at 587-89. Significantly, the current text of N.J.R.E. 702 is identical to the language of Fed. R. Evid. 702 at the time of the Daubert decision. Further, scholars have observed that Frye has not led to uniformity or predictability in practice. 7. The Court concludes that Daubert’s focus on methodology and reasoning, currently applied in civil cases, is a superior approach to criminal cases as well. Under Daubert and Accutane, trial courts directly examine the reliability of expert evidence by considering all relevant factors, not just general acceptance. Focusing on testing, peer review, error rates, and other considerations better enables judges to assess the reliability of the theory or technique in question. Courts are also in a better position to examine novel and emerging areas of science. In addition, to the extent Frye and cases that follow it draw lines between scientific and technical or other specialized knowledge, Daubert eliminates that unworkable distinction. Adopting a Daubert-type standard for criminal cases is also consistent with the New Jersey Rules of Evidence. Like the federal rule, N.J.R.E. 702 does not require a finding of general acceptance before expert testimony can be admitted. 8. The Court finds that special justification exists to depart from precedent and replace Frye with a Daubert-type standard in criminal cases, as have a majority of states. As in Accutane, however, the Court declines “to embrace the full body of Daubert case law as applied by state and federal courts.” 234 N.J. at 399. The Daubert factors will help guide trial courts in their role as gatekeepers. But Daubert’s non-exhaustive list of factors does not limit judges in their assessment of reliability. The focus in criminal cases, as in civil ones, belongs on the soundness of the methodology and reasoning used to validate the expert opinion or technique. The standard adopted here applies not only to testimony based on scientific knowledge but also to that based on technical or other specialized knowledge. 9. Nothing in today’s decision disturbs prior rulings that were based on the Frye standard. Future challenges in criminal cases that address the admissibility of new types of evidence should be assessed under the new standard outlined above. The same is true for challenges to the admissibility of evidence that has previously been sanctioned but the scientific reliability underlying the evidence has changed. 10. The Court remands the matter for the Special Master to assess the reliability and admissibility of DRE evidence under the standard adopted in this opinion and provides guidance for the remand. 2. If someone had a conditional discharge on a pot charge which has now been “removed”, person can have another CD or PTI State v. Gomes In these appeals, trial courts in two vicinages reached opposite conclusions regarding whether, pursuant to the enactment of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:6I-31 to -56, N.J.S.A. 54:47F-1, N.J.S.A. 40:48I-1, N.J.S.A. 18A:61F-1, N.J.S.A. 2C:35-23.1, and N.J.S.A. 2C:52-6.1,1 a defendant may be admitted into pretrial intervention (PTI) where they have a prior conditional discharge for marijuana charges. One court concluded the defendant could not be admitted into PTI, finding the Legislature did not end the PTI eligibility bar where a defendant received a conditional discharge. The other court held that while the Legislature did not amend the PTI statute, the legislative intent of CREAMMA included removing the statutory bar to PTI eligibility where a defendant obtained a conditional discharge. A-3477-20 3. Officer could not walk onto driveway to look into hole in porch State v Ingram The court considers whether a police officer, who walked onto the driveway of a home without permission or a warrant, was lawfully there when he observed illegal narcotics in a hole in the home's front porch. Because the driveway was part of the home's curtilage, the court holds that the officer conducted an unlawful search and his subsequent observation of contraband in the hole in the porch did not satisfy the plain-view exception. Accordingly, the court reverses the trial court's denial of defendant's motion to suppress the seized contraband. 4. Suppression where dispatcher just assumed robber was black State v Scott Defendant contends he was subjected to discriminatory policing when he was stopped and frisked based on the be-on-the-lookout (BOLO) description of the person who committed an armed robbery in the vicinity minutes earlier. The BOLO alert described the robber as a Black male wearing a dark raincoat. However, the victim did not provide the race of the perpetrator when she reported the crime. The State acknowledges it does not know why the police dispatcher assumed the robber was Black. The court address three issues of first impression. As a threshold matter, the court holds that decisions made and actions taken by a dispatcher can be attributed to police for purposes of determining whether a defendant has been subjected to unlawful discrimination in violation of Article I, Paragraphs 1 and 5 of the New Jersey Constitution. Second, the court holds that "implicit bias" can be a basis for establishing a prima facie case of police discrimination under the burden-shifting paradigm adopted in State v. Segars, 172 N.J. 481 (2002). Reasoning that the problem of implicit bias in the context of policing is both real and intolerable, the court holds evidence that supports an inference of implicit bias shifts a burden of production to the State to provide a race-neutral explanation. The State's inability to offer a race-neutral explanation for the dispatcher's assumption that the robbery was committed by a Black man constitutes a failure to rebut the presumption of unlawful discrimination under Segars. Third, the court addresses whether and in what circumstances the independent source and inevitable discovery exceptions to the exclusionary rule apply to the suppression remedy for a violation of Article I, Paragraphs 1 and 5. After balancing the cost of suppression against the need to deter discriminatory policing and uphold public confidence in the judiciary's commitment to safeguard equal protection rights, the court concludes the independent source doctrine does not apply in these circumstances. That exception allows a reviewing court to redact unlawfully obtained information to determine whether the remaining information is sufficient to justify a search. The court concludes that any such redaction remedy would undermine the deterrence of discriminatory policing and send a message to the public that reviewing courts are permitted to essentially disregard an equal protection violation so long as police also relied on information that was lawfully disseminated. The court reasons that if simple redaction were permitted in these circumstances, the independent source exception might swallow the exclusionary rule. With respect to the inevitable discovery doctrine, the court holds it may apply in racial discrimination cases only if the State establishes by clear and convincing evidence that the discriminatory conduct was not flagrant. Because the State concedes it does not know why the dispatcher assumed the robber was Black, it cannot meet that burden. The court, therefore, reverses the denial of defendant's motion to suppress. 5. Interlock issues post plea are to be resolved by court, not MVC State v. Coviello The sentencing court, and not the MVC, has the appropriate jurisdiction over defendant’s motion for sentencing credit concerning the IID requirement. Editor: This should also apply to IDRC issues 6. Wills for Attorneys and Retirement/Disability Planning During the past 38 years I have enjoyed meeting many lawyers and Judges at NJSBA events, court and educational seminars. As my clients mature, my office does more Wills, Estate Planning & Probate, Estate Administration and Orders to Show Cause. Many attorneys have not taken the time to do a Will or Power of Attorney for themselves. We invite you and staff to attend one of the Library WILLS & ESTATE ADMINISTRATION seminars. Seminars are posted at https://njwills.blogspot.com If you do not have an up to date Power of Attorney or Will, you should have one prepared. We also helped a program for the ABA focusing on when attorneys slow down or wish to retire. Several NJ attorneys who retired had their phone numbers forwarded to our office so we could help their clients. It is better to be prepared to help past and future clients. I also suggest to all the attorneys to make sure they have written plans for their files if they become disabled. When I crashed on my triathlon bike and broke some bones ten years ago I could not write or drive for a while. We are available to help Called add to spring or summer mun online Defense attorney could not waive defendant attendance at suppression motion. Suppression reversed where defendant not present at Motion State v. Hogges Defendant appealed his judgment of conviction arising from a motor vehicle accident that resulted in serious bodily injury, and from his aggregate sentence of 23 years imprisonment. While intoxicated, defendant ran a red light and crashed into another vehicle. After the crash, defendant exited his vehicle, walked past the other vehicle without rendering assistance to the seriously injured driver, and left the scene. A passing motorist reported the accident to police, who soon after found defendant walking away from the scene of the crash with a limp. Officers found defendant bleeding, agitated, and unresponsive to police commands. When defendant failed to comply with the officer's order to get to the ground, the officer resorted to yelling and profanity to get defendant to comply. The officer's body camera footage also recorded the officer asking defendant "what happened?" Defendant replied that the other driver had run the red light. The officer also expressly told defendant that he was under arrest for DWI, smelling the odor of alcohol from defendant but unable to perform field sobriety tests due to his injury. While being transported to the hospital, another officer asked defendant if he had been drinking, to which defendant responded "no." Defendant also admitted that he was at a restaurant "having a good time" prior to the crash. At the hospital, defendant refused to submit to blood alcohol testing. Prior to trial, defendant moved to suppress his statements to the officers, arguing that he was in custody from the time he was ordered to the ground and that the officers failed to advise him of his Miranda rights. The trial court denied the motion. On appeal, the court reversed the denial of defendant's suppression motion and vacated his conviction. The court noted that defendant was not present at the motion hearing, and held that defense counsel did not clearly have authority to waive defendant's right to be present. Daily Briefing December 02, 2022 Court rejected FRO noted that plaintiff's decision to come back into the marital home after obtaining a TRO while defendant was inside indicated that she was not in fear of future violence M.A.D. v. B.L.D. unreported Plaintiff appealed the denial of a FRO against defendant, plaintiff's ex-husband. Plaintiff appealed the denial of a FRO against defendant, plaintiff's ex-husband. When the parties' marriage began to deteriorate in 2015, they began litigating in the family part, with plaintiff obtaining three TROs against defendant. Plaintiff dismissed each TRO within days. She also filed for divorce in 2015 but voluntarily withdrew the complaint. Defendant filed his own divorce complaint in 2017, leading to the parties' divorce in 2018. The parties were awarded joint custody of their unemancipated children, with plaintiff being named the parent of primary residence and defendant being awarded parenting time. Plaintiff later obtained another TRO, leading to the entry of a consent order with civil restraints, which allowed plaintiff to relocate to Florida with the parties' children. Defendant moved back into the marital residence, which had not yet been sold. Plaintiff later decided to return to New Jersey and began living in the marital residence with defendant, based on an agreement that defendant would move out in about six months. Defendant was unable to leave due to the COVID-19 pandemic, causing the parties' relationship to further deteriorate. The parties cross-filed domestic violence complaints, each alleging that the other assaulted them. At trial, defendant admitted to using vulgar language towards plaintiff but denied making any harmful physical contact. Plaintiff further alleged that defendant committed acts in violation of the TRO she obtained against him. The trial court denied both parties' requests for FROs, finding that the predicate acts alleged by both parties merely amounted to "domestic contretemps." The trial court further found plaintiff not credible and determined that the video evidence showed plaintiff engaging in a pattern of trying to prod defendant into angry or violent behavior. The trial court also noted that plaintiff's decision to come back into the marital home after obtaining a TRO while defendant was inside indicated that she was not in fear of future violence. On appeal, the court affirmed, declining to disturb the trial court's credibility determinations Unreported Daily briefing Court further affirmed the state's objection to a portion of the defense expert's testimony, ruling that the testimony sought to impermissibly introduce a hearsay expert opinion of a medical diagnosis December 05, 2022 State v. Jaggie Defendant appealed his conviction and sentence for DWI and refusal to submit to a breath test. At trial, the arresting officer testified that he witnessed defendant's vehicle veer sharply over the center line in the Lincoln Tunnel. The officer stated that as he spoke with defendant, he detected the strong odor of alcohol and noticed that his eyes were watery and bloodshot. Defendant claimed that he had consumed two beers earlier that night. Another officer arrived to administer field sobriety tests, but defendant was unable to perform any of the tests satisfactorily. Defendant was arrested and transported to police headquarters where he refused to provide a breath sample. Defendant testified in his own defense, claiming that he had respiratory and sleeping difficulties that affected his physical performance. Defendant also presented an expert in field sobriety tests who opined that none of the tests during defendant's traffic stop were performed correctly. The expert further opined that sleep conditions could affect a person's ability to drive and perform field sobriety tests. The municipal court sustained the state's objection to the expert's testimony regarding whether defendant had a sleep disorder diagnosis. The municipal court found defendant guilty of DWI and refusal, crediting the testimony of the police officers. The Appeal court held that there was sufficient credible testimony from the police officers for the municipal court to find that defendant was operating his vehicle while intoxicated and refused to submit to a breath test. The court further affirmed the state's objection to a portion of the defense expert's testimony, ruling that the testimony sought to impermissibly introduce a hearsay expert opinion of a medical diagnosis that the expert had read in one of defendant's medical reports, especially where the expert had no medical expertise. Daily briefing December 08, 2022 Court affirmed Dyal subpoena State v. Ross State appealed the denial of its search warrant application for a bullet and a Dyal subpoena for hospital medical records pertaining to surgery to remove the bullet. Daily Briefing January 04, 2023 State appealed the denial of its search warrant application for a bullet and a Dyal subpoena for hospital medical records pertaining to surgery to remove the bullet. Defendant was shot in an exchange of gunfire with police officers and was treated at hospital in December 2017. He was indicted on multiple counts of first-degree attempted murder, second-degree aggravated assault, fourth-degree aggravated assault and weapons offenses in February 2018. In July 2018, prosecutor asked hospital if any bullet or metal fragments had been removed from defendant's body during his treatment. Hospital replied a bullet in defendant's abdomen had not been removed during emergency surgery. Motion judge denied State's motion to compel discovery in October 2021. Defendant had elective surgery in June 2022 to remove the bullet in his abdomen. Hospital informed police of the removed bullet and prosecutor applied for a search warrant. Motion judge denied the application, finding it tantamount to a motion to compel defendant to turn over potentially incriminating evidence. Court found motion judge erred by treating the search warrant application as if it were the functional equivalent of a motion to compel reciprocal discovery. The reciprocal discovery process implicated different constitutional rights than those raised by the issuance of a search warrant. Defendant's right to conduct a defense investigation did not foreclose State from obtaining a warrant to seize tangible evidence in the custody of a third party State v. Mongillo DWI affirmed court affirmed, finding ample evidence in the record to support defendant's conviction, including the arresting officer's testimony and the MVR footage, which the court held was considered by the trial court. source. Daily briefing December 30, 2022 Defendant appealed his conviction for DUI, refusal to submit to breath testing, reckless driving, and failing to maintain lane, following a trial de novo. Prior to the municipal court trial, the parties stipulated to the admission of mobile video recording. The state presented the testimony of the arresting officer, who testified regarding his observations of defendant's driving and his behavior, and the attempts to have defendant perform field sobriety testing. The municipal court convicted defendant on all counts based on the officer's testimony. The municipal court also relied on the officer's testimony regarding his efforts to have defendant submit to breath testing to find that defendant failed to provide unequivocal assent to the test, which constituted a refusal. Defendant sought a trial de novo, arguing that the prosecutor's reference to the failure of defendant's co-worker to testify constituted plain error and that the municipal court erred in admitting evidence of defendant's field sobriety testing. The trial court rejected defendant's arguments and affirmed his conviction, finding that the municipal court's judgment was based on the arresting officer's first-hand observations and not on any consideration of field sobriety test results. The trial court also noted that the officer's testimony was corroborated by the MVR. On appeal, the court affirmed, finding ample evidence in the record to support defendant's conviction, including the arresting officer's testimony and the MVR footage, which the court held was considered by the trial court. NOT APPROVED FOR PUBLICATION FAMILY LAW FRO denied here where plaintiff not credible B.A.R.S. v. S.R.L., Plaintiff appealed the denial of a FRO in her favor and the dismissal of the TRO. The parties had an on-again, off-again dating relationship. At the time of the underlying events, the parties were living in defendant's home. Plaintiff filed a domestic violence complaint alleging predicate acts of assault and harassment. Plaintiff alleged that she had been living in defendant's home for two years, although defendant asserted that plaintiff had only been living in the home for a couple of months. The parties had an altercation in which plaintiff claimed that defendant "lunged" at her and grabbed her arm, causing her to fall backwards and break a cabinet. Plaintiff further testified to a history of verbal and emotional abuse by defendant that culminated in the alleged physical violence. Plaintiff also made inconsistent statements about a subsequent incident in which defendant had plaintiff's dog removed upon allegations of animal cruelty against plaintiff. Defendant denied touching plaintiff, claiming that plaintiff broke the cabinet door by slamming it in the wrong direction. The trial court dismissed the complaint and TRO, noting that while both parties' testimony suffered from inconsistencies, there were larger inconsistencies in plaintiff's testimony. The trial court found plaintiff's testimony not credible and ruled that she had failed to meet her burden of proof to establish a predicate act of domestic violence. On appeal, the court affirmed, ruling that the dismissal of plaintiff's domestic violence complaint was based on the trial court's credibility determinations that resulted in plaintiff failing to establish a predicate act of domestic violence. Source Daily Briefing - 02-15-23 Appellate Division, Per Curiam. Drug dog alert prior to opening case door sufficient here State v. Balbi Defendant appealed the order denying his motion to suppress drug evidence after a remand. Court remanded for trial court to make specific factual findings about the movement of a K-9 dog as part of a canine sniff of defendant's car to establish probable cause for a search warrant. Trial judge heard testimony from canine handler and viewed a video of the canine sniff. Officer narrated the dog's movements in the video and confirmed the dog alerted on the front passenger door by biting the door handle. Door opened and officer reached out and closed the door. Officer testified the dog also scratched at the front passenger door pointing "to the source" of the odor. Officer testified dog never entered the vehicle and that biting, scratching, jumping and/or barking were the dog's alert signals. Trial judge found officer was credible, consistent with the video, dog never entered the vehicle, the sniff was lawful and the brief opening of the car door had no effect on the search and the validity of the warrant. Court rejected defendant's argument that the opening of the car door constituted an unlawful search, noted trial judge found dog alerted prior to any opening of the car door and found there was no evidence dog was trained to open doors during a sniff. sourcehttps://www.law.com/njlawjournal/almID/1678822790NJA290820/ State v. Ransdell Prosecutor should not have rejected for PTI based on parking ticket suspension Defendant appealed the denial of her application to enter the pretrial intervention program. Defendant was driving her vehicle when it was struck by a bus. Her passenger died from her injuries and defendant was charged with operating a motor vehicle that resulted in the death of another while her license was suspended. Her license had been suspended because of unpaid parking tickets. Prosecutor objected to defendant's entry into the pretrial intervention program. Trial judge denied her application because he could not find prosecutor's position "amounted to a patent and gross abuse of discretion." Defendant pled guilty, State recommended a non-custodial sentence and judge sentenced defendant to a three-year probationary term. Court reversed and remanded. Court found prosecutor's denial of PTI was a patent and gross abuse of discretion. Prosecutor found six factors that he believed justified barring defendant from PTI, including the nature of the offense. Court however, noted her license was suspended for unpaid parking tickets and there was no evidence she was intoxicated, under the influence or distracted by a cellphone at the time of the accident. Prosecutor's reliance on three other factors adding nothing that the nature of the offense factor did not take into consideration. Additionally, defendant had no criminal history and two of victim's close family members favored PTI. source https://www.law.com/njlawjournal/almID/1678481236NJA147621/ State v. Marable DVSW was invalid due to procedural inadequacies, granted defendant's motion to suppress evidence from the warrantless search because complainant could not consent to search of defendant's bedroom and found the search warrant for the safe was fruit of the poisonous tree. State appealed the suppression motion granted to defendant and the orders invalidating a domestic violence search warrant and dismissing a weapons charge. Complainant filed a complaint with police alleging defendant family member threatened to shoot her and kill himself, requested a TRO and asked police to remove defendant from the home. Municipal court judge granted a TRO, a warrant to seize weapons and an arrest warrant. Complainant gave police the keys to the house and defendant was arrested while sleeping in his bedroom. Police seized a locked safe from the bedroom, received a criminal search warrant for the safe and found a handgun and bullets in it. Defendant was indicted on terroristic threats and weapons charges and moved to suppress all evidence from his bedroom and the safe and argued the DVSW was invalid because State failed to produce a recording of the TRO hearing or contemporaneous notes from the municipal judge who issued the DVSW. Trial judge found the DVSW was invalid due to procedural inadequacies, granted defendant's motion to suppress evidence from the warrantless search because complainant could not consent to search of defendant's bedroom and found the search warrant for the safe was fruit of the poisonous tree. Court agreed with trial court and found trial court properly dismissed the weapons charge. source https://www.law.com/njlawjournal/almID/1678822675NJA346721/ DIRECTIVE# 05-23 Criminal - Expungements - (1) Guidance on the New Compelling Circumstances Standard; (2) Handling Fugitive from Justice Charges with Regard to Expedited Expungement; (3) Additional eCourts Expungement System Information and Enhancements March 13, 2023 This Directive serves to clarify certain procedural requirements regarding the expungement process and to provide additional information on the eCourts Expungement System and enhancements. (1)GUIDANCE TO JUDGES AND STAFF ON THE NEW COMPELLING CIRCUMSTANCES STANDARD Judges and staff should not require that an applicant provide plea or sentencing transcripts or presentence reports regarding the underlying offense(s). This direction is based on the June 15, 2020 statutory change that replaced the "public interest" standard with a "compelling circumstances" test. Further, consideration of expungement petitions should not be delayed by any requests by the State that applicants supply such materials. The reasoning is set forth be Le2islative Amendment On June 15, 2020, N.J.S.A. 2C:52-2(a)(2) and (c)(3) was amended to remove the requirement that the court consider the public interest in determining whether to grant an expungement and to require instead that the court find that compelling circumstances exist to grant an expungement. The statutory amendments also required the Administrative Office of the Courts to develop and maintain a system to electronically file expungement applications. Former Public Interest Standard Prior to the 2020 amendments, the statute imposed a public interest standard: "...and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction." N.J.S.A. 2C:52-2(a)(2) (emphasis added). This standard was clarified by the Supreme Court in In re Kollman, 210 N.J. 557 (2012). In Kollman, the Court directed applicants for expungement under N.J.S.A. 2C:52- 2(a)(2) and (c)(3) to include transcripts of plea and sentencing hearings and their presentence report with their petition. 210 N.J. at 577. This requirement was specifically intended to assist trial judges in their evaluation of the "nature of the offense" component of the public interest test and allow them to "weigh the risks and benefits to the public of allowing or barring expungement." Id. The Court noted that "[t]he focus, as the statute says, is on the 'public interest,' which is broader than the personal desires of an applicant...." Id. (emphasis added). Compellin2 Circumstances Standard The 2020 statutory amendments replaced the "public interest" test and its focus on the nature of the offense with a test that instead focuses on the applicant. Under the revised la\\:, to grant an expungement the court must find in "its discretion that compelling circumstances exist to grant the expungement." N.J.S.A. 2C:52- 2(a)(2) (emphasis added). The amended statute further provides: In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of any court-ordered financial assessment imposed, the person's age at the time of the offense or offenses, the person's financial condition and other relevant circumstances regarding the person's ability to pay. (3) ADDITIONAL INFORMATION ON THE eCOURTS EXPUNGEMENT SYSTEM AND ENHANCEMENTS The 2020 statutory amendments also required the Administrative Office of the Courts to develop and maintain a statewide system to electronically file, serve, and manage expungement applications. N.J.S.A. 2C:52-10.l(a). On December 8, 2020, the Court issued an Order relaxing and supplementing Part III Rules to conform to the legislation and support the 2021 launch of eCourts Expungement System and to add a 30-day timeframe for the petitioner to reply to any objection filed by the county prosecutor. Pursuant to N.J.S.A. 2C:52-10.l(a) and (b), upon filing, the eCourts Expungement System ("eCourts") sends an electronic notification as service of the petition and all supporting documents on the Superintendent of State Police, the Attorney General, the county prosecutor of the county in which the court is located, and the county prosecutor of any county in which the petitioner was convicted. The eCourts system also electronically compiles a list of all relevant Judiciary records for an expungement petitioner and transmits this information to all parties served. In limited situations, due to the significant age of a case, petitioners must enter into eCourts supplemental information that is not available in the Judiciary's records. Current Application Information Currently, the eCourts Expungement System electronically facilitates: (1) the filing of expungement petitions; (2) the petitioner's ability to withdraw and submit an amended petition and proposed order; (3) the transmittal and service of petitions to the county prosecutor and other law enforcement authorities; (4) the submission of an objection by the county prosecutor within 60 days of the filing of the initial petition; (5) the transmittal to the Office of the Public Defender of a county prosecutor's objection; (6) the transmittal of a petitioner's reply to an objection within 30 days of the filed objection; and (7) the dissemination of the expungement order. The System incorporates all of the statutory requirements as well as additional enhancements. Access to eCourts Expungement System . The eCourts Expungement System may be accessed at: https://www.njcourts.gov/self-help/expunge-record For additional information and training materials please see visit the eCourts Training Page (https://www.njcourts.gov/attomeys/ecourts/user-guides) under the eCourts Expungement System section. An expungement packet remains available in the Self-Help Center and in hardcopy form in the courthouses for those unable to access the eCourts Expungement System. Recent Enhancements Recent enhancements to the eCourts Expungement System allow County Prosecutors to object to the proposed order and petition and return them to the petitioner for correction. In that situation petitioners are able to submit a revised petition and proposed order. Additionally, the system now automatically schedules expungement hearings which, pursuant to N.J.S.A. 2C:52-9, should be scheduled within 60 days of the filed petition. While the court may, in its discretion, postpone these hearings, the initial hearing must be scheduled within 60 days of filing. Questions regarding this Directive and the eCourts Expungement System may be directed to the Criminal Practice Division by phone at 609-815-2900 ext. 55300. cc: Chief Justice Stuart Rabner Steven D. Bonville, Chief of Staff AOC Directors and Assistant Directors Clerks of Court Special Assistants to the Administrative Director Justin M. Patterson Moles, Chief, Criminal Practice Page 5of5 Aunt obtained TRO against niece D.M.L. v. K.A.C. Defendant appealed the FRO entered against her. Plaintiff and defendant were aunt and niece. They began living together in 2021. Plaintiff's adult daughter also lived in the residence and plaintiff had health issues that required a caregiver to assist her with daily activities. Plaintiff's other niece dropped off her two dogs at the house in July 2021 and defendant became enraged because she did not want the dogs there. Defendant struck a table with a broomstick while yelling at plaintiff and her daughter. The incident continued outside the house and defendant pushed plaintiff in the face. Plaintiff's caregiver corroborated plaintiff's testimony. An earlier argument between defendant, plaintiff and daughter had occurred because defendant believed they had called the Division of Child Protection on her and she placed a candle in a hallway near plaintiff's bedroom. Defendant denied the allegations. Trial court found plaintiff, daughter and caregiver were credible, a predicate act of harassment had been committed and that an FRO was necessary to prevent further abuse. Court found sufficient evidence in the record supported trial court's findings and noted the candle outside the bedroom posed a risk due to plaintiff's physical limitations. source https://www.law.com/njlawjournal/almID/1677789042NJA180521/