STATE OF NEW JERSEY VS. RICHARD W. BERNARDI, SR., ET AL. (16-02-0014, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0752-17T3)

STATE OF NEW JERSEY VS. RICHARD W. BERNARDI, SR., ET AL. (16-02-0014, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0752-17T3)

By leave granted, the State appeals from the dismissal of second-degree false representations for a government contract, N.J.S.A. 2C:21-34(b), and second-degree theft by deception, N.J.S.A. 2C:20-4(a), charges in a multi-count indictment. The indictment alleged the New Jersey Department of Environmental Protection (NJDEP) entered into an Administrative Consent Order (ACO) with defendants in reliance on their misrepresentations concerning their financial condition and ability to operate a solar power generation facility on a landfill. The ACO authorized defendants' operation of the landfill and collection of millions of dollars in tipping fees and anticipated revenue from the solar power generation facility. The ACO required that defendants deposit portions of the fees and revenue in escrow for remediation of the landfill, but they failed to do so after entering into the ACO.

The trial court dismissed the count alleging second-degree false representations for a government contract, finding the ACO was not a government contract within the meaning of N.J.S.A. 2C:21-34(b) because it was not a contract for the procurement of goods and services. The trial court further dismissed the second-degree theft by deception charge, finding the contract did not have a value permitting the grading of the offense.

The court reverses, holding N.J.S.A. 2C:21-34(b)'s coverage is not limited to government contracts for goods and services, finding the ACO constitutes a government contract under the statute and determining there was sufficient evidence presented to the grand jury supporting the charge that defendants procured the ACO by making false representations to the NJDEP. The court also reverses the dismissal of the theft by deception charge, finding the evidence shows defendants procured contract rights – to operate the landfill and collect tipping fees and other revenue – that were worth millions of dollars and over which the NJDEP had a legal interest.

STATE OF NEW JERSEY VS. HASSAN A. REID (14-02-0224 AND 14-02-0234, MIDDLESEX COUNTY AND STATEWIDE) (A-0985-17T3)

STATE OF NEW JERSEY VS. HASSAN A. REID (14-02-0224 AND 14-02-0234, MIDDLESEX COUNTY AND STATEWIDE) (A-0985-17T3)

The State appeals the trial court's dismissal of two Middlesex County indictments charging defendant with committing an armed robbery in Perth Amboy, conspiracy, and firearms possessory offenses. The court dismissed those charges because defendant had already pled guilty and been convicted in Monmouth County to having illegally possessed firearms in Asbury Park, weapons that were confiscated after the robbery in Perth Amboy occurred.

In particular, the victim of the robbery identified defendant as having brandished a silver or gray handgun and wearing a shoulder holster. Five days after the robbery, police officers executed a warrant for defendant's arrest issued by a judge in Middlesex County. The officers found defendant in a home in Monmouth County, along with two guns, one of which was silver or gray in color, and a shoulder holster.

The trial court reasoned that the Monmouth County and Middlesex County charges were sufficiently related to require them to be pursued in a single coordinated prosecution. Consequently, the court ruled the State's failure to combine the charges before the entry of the judgment of conviction in Monmouth barred his later prosecution in Middlesex.

The issues on appeal concern principles of mandatory joinder, double jeopardy, and continuing offenses. Applying those principles, the panel partially affirms the trial court's dismissal order with modification, reverses the order in part, and remand the matter for trial on certain counts of the indictments in Middlesex County. More specifically, and subject to certain caveats detailed in this opinion, the Middlesex prosecution on the armed robbery and conspiracy-to-rob counts is reinstated, but the weapons possession counts remain dismissed.

Summer Municipal Court Law Review 2018

Summer Municipal Court Law Review 2018

Summer Index

1. Consent to search voluntarily given here. State v. Hagans

2. Warrantless blood draw permitted in fatal accident based on exigency. State v. Zalcberg

3. Later obtained search warrant does not correct prior illegal warrantless search. State v. Atwood

4. Evidence suppressed where no valid inventory search. State v. Hummel

5. Driver’s failure to provide registration here permitted limited search. State v. Terry

6. Search under a tarp under house curtilage not permitted. Collins v. Virginia  

7.  Domestic violence search to seize firearms could also seize cocaine in plain view. State v. Hemenway

  1. Consent to search voluntarily given here. State v. Hagans233 N.J. 30 (2018). 


       Because the trial court’s determination that the driver ultimately knowingly and voluntarily gave consent to search is supported by sufficient credible evidence, the trial court properly denied defendant’s motion to suppress the evidence seized during the search.

  2. Warrantless blood draw permitted in fatal accident based on exigency. State v. Zalcberg232 N.J. 335 (2018).

       The totality of the circumstances in this case evince an objective exigency, relaxing the need for a warrant and rendering the officer’s warrantless blood draw constitutional. The court held that the facts of this case, in totality, indicate an objective exigency: a fatal accident with multiple serious injuries, the absence of an established telephonic warrant system, and the myriad duties with which the police officers present were tasked. The court also affords “substantial weight” to the “potential dissipation of” the alcohol in defendant's blood. Adkins, 221 N.J. at 303, 113 A.3d 734. Therefore, the court held that the warrantless blood draw did not violate defendant's constitutional rights in this case.

         In this case, the Court considers whether police officers violated the Fourth Amendmentof the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution when they took a sample of defendant’s blood without a warrant during an investigation of alleged vehicular manslaughter and driving while intoxicated.            

          

         A grand jury charged defendant with second-degree vehicular homicide, two counts of third-degree assault by auto, and fourth-degree assault by auto. Defendant filed a pre-trial motion to suppress the results of the warrantless blood test. The trial court granted defendant’s motion to suppress in a written opinion. After finding that the officers had probable cause to obtain a blood sample, the judge held that the State failed to establish that an exigency existed sufficient to constitute a recognized exception to the warrant requirement. The judge determined, based upon the totality of the circumstances, that the only exigency the State could establish was the natural metabolization of alcohol in defendant’s blood, which was alone insufficient to justify a warrantless blood draw under Missouri v. McNeely, 569 U.S. 141(2013), and State v. Adkins, 221 N.J. 300, 303 (2015). An Appellate Division panel affirmed, substantially for the reasons expressed in the trial judge’s written decision. The Court granted the State’s motion for leave to appeal. 229 N.J. 249(2017). HELD: The totality of the circumstances in this case evince an objective exigency, relaxing the need for a warrant and rendering the officer’s warrantless blood draw constitutional.                                                            

         1. A warrantless search is constitutionally invalid unless one of the few well-delineated exceptions to the warrant requirement applies. The exigent-circumstances exception is frequently cited in connection with warrantless blood draws. In Schmerber v. California, 384 U.S. 757(1966), the United States Supreme Court established that a compelled taking of a blood sample for the purpose of alcohol-content analysis constitutes a search within the Fourth Amendment’s framework. Approximately fifty years later, in McNeely, the Supreme Court clarified that while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances. 569 U.S. at 156.

          2. Prior to McNeely, New Jersey, like many states, provided de facto, if not de jure, support for law enforcement to believe that alcohol dissipation in and of itself supported a finding of exigency for a warrantless search of bodily fluids in suspected driving-under-the-influence cases. Adkins, 221 N.J. at 303. Based on that pre-McNeely understanding, the defendant in Adkins, suspected of drunk driving, was subjected to a warrantless blood test following a single-car accident. Id. at 302. On appeal, the Court pronounced that McNeely’s directive that courts must evaluate the totality of the circumstances in assessing exigency, one factor of which is the human body’s natural dissipation of alcohol would receive   pipeline retroactivity.  Id. at 312, 317. The Court directed that reviewing courts must focus on the objective exigency of the circumstances that the officer faced in the situation and stated that the potential dissipation of [blood-alcohol] evidence may be given substantial weight as a factor to be considered in the totality of the circumstances. Id. at 303 (emphases added). 

         3. In State v. Jones, the Appellate Division determined that a warrantless blood draw was constitutional under the totality of the circumstances. 441 N.J. Super. 317, 321 (App. Div. 2015). Jonesinvolved a defendant who caused a three-vehicle accident at a heavily traveled intersection during rush hour. Several police officers, EMS personnel, and firefighters arrived to manage the scene and tend to the occupants of the three vehicles. The defendant was unconscious in her car; it took half an hour to remove her from her vehicle, at which time emergency personnel smelled alcohol on her breath. One officer proceeded to the hospital to follow up on the defendant’s injuries. When the defendant regained consciousness at the hospital, she displayed signs of intoxication, such as slurred speech and inability to answer questions. Moreover, the defendant admitted to the officer that she had consumed alcohol earlier. Approximately one hour and fifteen minutes after the accident occurred, a nurse drew a sample of the defendant’s blood at the officer’s request. The officer did not seek a warrant before ordering the test because he was not required to under standard procedure and had not received training on telephonic warrants. 

         4. Here, defendant’s accident was a serious one that occurred on a busy state highway on the night of a nearby event that drew unusually high traffic. Any delay in seeking to obtain defendant’s blood sample after the establishment of probable cause is attributed to the complexity of the situation and the reasonable allocation of limited police resources not a lack of emergent circumstances. The officers’ lack of awareness of any formal procedure through which they could obtain a telephonic warrant, coupled with their belief that they did not need such a warrant, suggests that there was no reasonable availability of a warrant. Accidents do not, per se, create objective exigency, but the circumstances that accompany them may factor into a court’s exigency analysis. The facts of this case, in totality, indicate an objective exigency: a fatal accident with multiple serious injuries, the absence of an established telephonic warrant system, and the myriad duties with which the police officers present were tasked. Substantial weight is also afforded to the potential dissipation ofthe alcohol in defendant’s blood. Adkins,221 N.J. at 303. The warrantless blood draw did not violate defendant’s constitutional rights in this case. 

         

          JUSTICES ALBIN AND TIMPONE, DISSENTING, are of the view that the majority has not applied the principles set forth in McNeelyand stress that warrantless searches are presumptively invalid. Justices Albin and Timpone add that a deferential standard of review should guide the Court in reviewing a suppression order. An officer’s ignorance of the law does not justify the violation of a person’s federal constitutional rights, according to Justices Albin and Timpone.        

  3. Later obtained search warrant does not correct prior illegal warrantless search. State v. Atwood232 N.J. 433 (2018). 

         Search warrants are prospective in nature—they authorize the taking of action. A later-obtained search warrant does not retroactively validate preceding warrantless conduct that is challenged through a suppression motion focused on the legitimacy of the seizure that gave rise to a later search. The State must bear the burden of proving the legitimacy of the seizure that led to a later warrant and search—in this case the stop.

  4. Evidence suppressed where no valid inventory search. State v. Hummel232 N.J. 196 (2018).

      The Court finds no valid inventory search and therefore affirms the Appellate Division’s determination that the evidence seized during the search should be suppressed. 

An inventory search must be reasonable under the circumstances to pass constitutional muster. In Mangold, the Court explained that the propriety of an inventory search involves a two-step inquiry: (1) whether the impoundment of the property is justified; and (2) whether the inventory procedure was legal. Id. at 583. For there to be a lawful inventory search, there must be a lawful impoundment. Courts need only analyze the reasonableness of the inventory search if the impoundment is justified. Several factors are relevant to the reasonableness inquiry. They include “the scope of the search, the procedure used, and the availability of less intrusive alternatives.” Id. at 584. 

         Under the first Mangoldinquiry, the detectives’ impoundment of defendant’s purse was not justified. The detectives had not arrested defendant before seeking to impound her purse. Defendant kept her purse open and within her reach for the entire interrogation. She rummaged through her bag several times in front of the detectives. The detectives did not frisk defendant at any point during her detention. They sought to remove her bag from the interrogation room only after she asked for an attorney. Crucially, they asked defendant if she would rather examine the contents of her purse herself. It is clear that had valid safety concerns existed at the time they sought to impound her bag, the officers would not have given defendant the option to search her own purse. 

         Even if the initial impoundment was justified under the first Mangoldinquiry, the search would fail under the balancing test required by the second. The detectives initiated the search to find the $500 defendant claimed her purse contained. The scope of the search should have been limited to that $500. The State concedes that the departmental policy for inventory searches is unknown. There is no way then to determine whether the detectives’ search was executed according to any purported policy or practice. Finally, the detectives had reasonable, less intrusive alternatives available to protect them against false theft claims that would have simultaneously respected defendant’s constitutionally protected privacy rights. The inventory search exception to the Fourth Amendment warrant requirement does not apply, and the detectives’ search was unconstitutional.  

  5. Driver’s failure to provide registration here permitted limited search. State v. Terry232 N.J. 218 (2018).

      Sufficient credible evidence supported the trial court’s determination that defendant was given an adequate opportunity to present the vehicle’s registration before the search commenced. When a driver is unwilling or unable to present proof of a vehicle’s ownership, a police officer may conduct a limited search for the registration papers in the areas where they are likely kept in the vehicle. When a police officer can readily determine that the driver or passenger is the lawful possessor of the vehicle—despite an inability to produce the registration—a warrantless search for proof of ownership will not be justified. 

  6. Search under a tarp under house curtilage not permitted. Collins v. Virginia, 138 S. Ct. 1663 (2018). 

During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, Officer Rhodes learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. Officer Rhodes discovered photographs on Collins' Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph.

Without a search warrant, Office Rhodes walked to the top of the driveway, removed a tarp, confirmed that a motorcycle was stolen by running the license plate and vehicle identification numbers.

Held: The automobile exception does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein.

(a) This case arises at the intersection of two components of the Court's Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home. In announcing each of the automobile exception's justifications--i.e., the "ready mobility of the automobile" and "the pervasive regulation of vehicles capable of traveling on the public highways," California v. Carney, 471 U. S. 386, 390, 392--the Court emphasized that the rationales applied only to automobiles and not to houses, and therefore supported their different treatment as a constitutional matter. When these justifications are present, officers may search an automobile without a warrant so long as they have probable cause. Curtilage--"the area 'immediately surrounding and associated with the home' "--is considered " 'part of the home itself for Fourth Amendment purposes.' " Florida v. Jardines, 569 U. S. 1, 6. 

       Thus, when an officer physically intrudes on the curtilage to gather evidence, a Fourth Amendment search has occurred and is presumptively unreasonable absent a warrant.

     (b) As an initial matter, the part of the driveway where Collins' motorcycle was parked and subsequently searched is curtilage. When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area "outside the front window," that enclosure constitutes "an area adjacent to the home and 'to which the activity of home life extends.' " Jardines, 569 U. S., at 6, 7.

Because the scope of the automobile exception extends no further than the automobile itself, it did not justify Officer Rhodes' invasion of the curtilage. Nothing in this Court's case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and " 'untether' " the exception " 'from the justifications underlying' " it. Riley v. California, 573 U. S. ___, ___. 

This Court has similarly declined to expand the scope of other exceptions to the warrant requirement. Thus, just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant--see Horton v. California, 496 U. S. 128, 136-137--and just as an officer must have a lawful right of access in order to arrest a person in his home--see Payton v. New York, 445 U. S. 573, 587-590--so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. 

To allow otherwise would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application.

7. Domestic violence search to seize firearms could also seize cocaine in plain view. State v. Hemenway (App. Div. 2018).

         Defendant's putative paramour filed a complaint against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, alleging he forcibly entered her residence and assaulted and threatened her. After considering the victim's sworn testimony, a Family Part judge issued an ex parte temporary restraining order (TRO) under N.J.S.A. 2C:25-28(g) and a warrant to search defendant's apartment and seize any firearms as authorized by N.J.S.A. 2C:25-28(j). 

The police arrested defendant on fourth degree contempt, N.J.S.A. 2C:29-9(b)(1), when he refused to permit the officers to enter his apartment to execute the domestic violence search warrant. Once inside, the officers found in plain view cocaine and drug paraphernalia. Based on the sworn testimony of a detective, a Criminal Part judge issued a telephonic warrant to search the apartment for narcotics. The plain view narcotics was deemed admissible.

Handling Drug, DWI and Serious Cases in Municipal Court Seminar  

 October 1, 2018 5:30PM-9:05PM

NJ Law Center, New Brunswick, NJ

     Please forward to any attorneys, prosecutors or judges you believe may be interested.

     Speakers: Kenneth A. Vercammen, Esq., Past Municipal Court Attorney of the Year

Norma M. Murgado, Esq. 
Chief Prosecutor (Elizabeth), Chief Prosecutor (Woodbridge)

Lorraine Nielsen, Esq. Municipal Court Prosecutor, Milltown

John Menzel, Esq.
Past Chair, NJSBA Municipal Court Practice Section 

William Brigiani, Esq. Past Middlesex Bar President

      This informative seminar on Municipal Court practice and procedure will familiarize you with recent new developments affecting cases that are heard in Municipal Court. 

An authoritative panel of experienced attorneys will be joined by well-respected Municipal Prosecutors to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients. 


NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION

NJICLE, A Division of the NJSBA NJ State Bar

For lawyers  $170- $190 tuition depending on NJSBA membership  

½ price for Judges. 

One Constitution Square, New Brunswick, NJ 08901 Phone: (732) 214-8500 · CustomerService@njsba.com

Photos  

1. Municipal Court College seminar Thank you speakers 2018 NJ Bar Municipal Court College seminar
 Speakers: Kenneth A. Vercammen, Esq, Norma Murgado Elizabeth & Woodbridge Prosecutor, John Menzel, Esq. Joshua Reinitz, Esq., Lorraine Nielson, Prosecutor Milltown, East Brunswick, North Brunswick

Handling Drug, DWI and Serious Cases in Municipal Court Seminar  

 October 1, 2018 5:30PM-9:05PM

NJ Law Center, New Brunswick, NJ

     Please forward to any attorneys, prosecutors or judges you believe may be interested.

     Speakers: Kenneth A. Vercammen, Esq., Metuchen Public Defender, Past Municipal Court Attorney of the Year

Tara Auciello, Esq. Municipal Prosecutor (South River)

William Brigiani, Esq. Past Middlesex Bar President

John Menzel, Esq.
Past Chair, NJSBA Municipal Court Practice Section 

Norma M. Murgado, Esq. 
Chief Prosecutor (Elizabeth), Chief Prosecutor (Woodbridge)

      This informative seminar on Municipal Court practice and procedure will familiarize you with recent new developments affecting cases that are heard in Municipal Court. 

An authoritative panel of experienced attorneys will be joined by well-respected Municipal Prosecutors to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients. 


NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION

NJICLE, A Division of the NJSBA NJ State Bar

For lawyers  $170- $190 tuition depending on NJSBA membership  

½ price for Judges. 

One Constitution Square, New Brunswick, NJ 08901 Phone: (732) 214-8500 · CustomerService@njsba.com

    Piscataway Wills & Estate Planning Seminar October 11 7pm

    As my clients gray, we do more Estate Planning.You and friends may be interested in Wills & Power of Attorney Seminar Piscataway Library. Open to the public. You do not need to be a resident.

1. NJ Estate Tax eliminated for 2018 & NJ Veterans Tax exemption of up to $3,000

2. The 2018 changes in Federal Estate and Gift Tax  

3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent

4. Power of Attorneys

5.  Living Will             

6.  Administering the Estate/ Probate/Surrogate

7. Avoiding unnecessary expenses

Photos  Municipal Court College seminar

Handling Drug, DWI and Serious Cases in Municipal Court Seminar  

 October 1, 2018

Piscataway Wills & Estate Planning Seminar October 11

N.J. Municipal Court - Law Review SUBSCRIPTION INFO

         Please forward a check or voucher for $20.00 to receive the NJ Municipal Court Law Review.  This quarterly newsletter reports changes in New Jersey Court decisions, selected revised motor vehicle and criminal laws, cases, seminars, and information on Municipal Court practice.

         Vouchers accepted. Please send a stamped, self-addressed envelope for their return.  Multiple subscriptions encouraged.

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                           Editor- NJ Municipal Court Law Review    

                           2053 Woodbridge Ave.

                           Edison, NJ 08817

                           732-572-0500

                         Tax ID # available

.  Municipal Court and criminal law attorneys may also be interested in the ABA’s CRIMINAL LAW FORMSbook

Award winning book from the American Bar Association

Solo & Small Firm DivisionAuthor: Kenneth Vercammen 

 Use Criminal Law Formsto help represent persons charged with criminal and traffic offenses. Detailed instruction and valuable insight is offered beginning with the initial contact with the client, to walking into the courthouse, and managing the steps that follow. Two hundred and ten modifiable forms help make criminal lawyers more efficient and productive, while also reducing the chance for mistakes. Criminal Law Formshelps lawyers face the challenges of:

•          Criminal defense

•          DWI cases

•          Juvenile offenses

•          Domestic violence

•          Traffic violations

•          Auto Accidents

•          And much more

Regular price $139.95, GP SOLO Member Price $129.95 To order contact ABA Customer Care, 1-800-285-2221(PC:5150457)  

ISBN:

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http://apps.americanbar.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5150457

 Kenneth Vercammenis 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^thdegree black belt. 

KENNETH VERCAMMEN

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

Spring 2018 Municipal Court Law Review

       Spring 2018 Municipal Court Law Review

1. Police could not stop for only one broken taillight

State v. Sutherland

2. Confession suppressed where Spanish translation not accurate

State v A.M.

3. Evidence here should not have been excluded where lab report not yet provided by lab

State v Washington

4. Guilty plea could be withdrawn here where defendant claimed innocence at sentencing

State v Belton

5. Restraining order should not be issued if domestic violence not proved

M.C. VS. G.T.

6. Hearsay is generally admissible in a VOP hearing

State v. Mosley 

7. Police have duty to preserve video and evidence

State v Richardson

8. Odor of pot does not police to search the trunk without consent or warrant

State v. Houston

9. PCR rejected here after 7 years

State v. Siervo

10. Case addresses warrantless sweep of vehicle

State v. Mills

11. Officer writing refusal as 39:4-50.2 rather than N.J.S.A. 39:4-50.4a. does not dismiss refusal State v. Dito

12. Photo Lt. General Christopher Burne 3 star Air Force General

13. Col. (Ret.) Danny McKnight, author Streets Of Mogadishu and Combat hero Colonel from Black Hawk Down

1. Police could not stop for only one broken taillight

State v. Sutherland 231 NJ 429 (2018)

The Appellate Division erred in concluding that the holding in State v Heien is applicable here. The motor vehicle statutes pertinent here are not ambiguous. The officer’s stop of defendant’s motor vehicle was not an objectively reasonable mistake of law that gave rise to constitutional reasonable suspicion; the stop was therefore unconstitutional.

Defendant’s traffic stop was premised on perceived violations of two statutes. The statutes read together require that a motor vehicle only have two working rear lamps, with at least one working lamp on each side. See N.J.S.A. 39:3-61(a); N.J.S.A. 39:3-66. N.J.S.A. 39:3-66 mandates that the lamps “required by this article” must be kept in good working order. The statutes require one working taillight on each side of a vehicle. Thus, if a vehicle has two taillights on each side of the vehicle—more than the law requires—and one of those multiple taillights on one side is not working, a violation of N.J.S.A. 39:3-61(a) and -66, as was assumed and charged here, has not occurred. The officer’s erroneous application of the functioning taillight requirement was not an objectively reasonable mistake of law. This case does not present a basis for considering the application of Heien. Simply put, this was not a good stop. The judgment of the Appellate Division, premised on an application of Heien to the stop in this matter, is reversed.

  The State also asserted community caretaking as an alternative basis to support the stop. The Appellate Division did not reach the argument in light of the manner in which it resolved the case. Accordingly, a remand is appropriate to allow the Appellate Division to address the unresolved argument advanced by the State.  (A-14-16; 077807)

2. Confession suppressed where Spanish translation not accurate

State v A.M.  452 NJ Super. 587 (App. Div. 2018)

Defendant pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), reserving his right to appeal the denial of his motion to suppress the inculpatory statement. This court reverses the trial court's order denying defendant's motion to suppress his inculpatory statement. The evidence presented by the State at the N.J.R.E. 104(c) hearing does not support the motion judge's findings that the State satisfied "the heavy burden" of proving, beyond a reasonable doubt, that defendant made a knowing, intelligent, and voluntary decision to waive his constitutional rights under Miranda. The motion judge's decision upholding the methods used by the interrogating detectives improperly shifted this burden of proof to defendant.

Judge Fuentes wrote a separate concurrence addressing the use of police officers as interpreters when interrogating a suspect who is limited English proficient. A-2090-13T2

3. Evidence here should not have been excluded where lab report not yet provided by lab to pros

State v Washington 453 NJ Super. 164 (App. Div. 2018)

The Appellate Division ruled that the State Police Lab's draft DNA report was not "within the possession, custody or control of the prosecutor" until the lab sent it to the county prosecutor, and in any event was not discoverable until the report was reviewed and approved by the lab. R. 3:13-3(b)(1)(C). Regardless of the speedy trial provisions, the court abused its discretion by excluding the DNA evidence rather than granting a continuance of trial under Rule 3:13-3(b)(1)(I) and -3(f), given the evidence's importance and the absence of surprise, prejudice, or a design to mislead. 

Under the speedy trial rule and statute, a case may be "complex" if it has "complicated evidence," but time is excludable only if the complexity makes it unreasonable to expect adequate preparation for trial in the speedy trial period. R. 3:5-4(i)(7); N.J.S.A. 2A:162-22(b)(1)(g). The provision addressing failures to produce discovery is a limit on excludable time. N.J.S.A. 2A:162-22(b)(2). The court properly excluded time sua sponte under N.J.S.A. 2A:162-22(b)(1)(c), and retained jurisdiction to do so after the State sought and obtained leave to appeal. That provision excludes the time while an emergent relief request, or interlocutory appeal, is pending in this court. Time while the trial is stayed is excludable under N.J.S.A. 2A:162-22(b)(1)(l). 

4. Guilty plea could be withdrawn here where defendant claimed innocence at sentencing

State v Belton 452 NJ Super. 428 (App. Div. 2018)

In this PCR appeal, defendant collaterally challenged his conviction, after a guilty plea, to aggravated manslaughter. The panel concludes that defendant, in the course of his allocution, suggested a defense of others that was inconsistent with guilt; his waiver of that defense was not knowingly made; therefore, he did not present a sufficient factual basis of guilt. In reaching this conclusion, the panel applies the principles set forth in State v. Urbina, 221 N.J. 509 (2015), although that case involved a claim of self-defense, rather than the defense of others, suggested in the course of a guilty plea. In view of defendant's contemporaneous claim of innocence, the panel held that the failure to elicit a sufficient factual basis was of constitutional dimension and warrants PCR. A-0971-16T1

5. Restraining order should not be issued if domestic violence not proved

M.C. VS. G.T. 452 NJ Super. 509 (2018)

Plaintiff failed to prove defendant committed an act of domestic violence but the judge – after acknowledging the Prevention of Domestic Violence Act did not permit issuance of a final restraining order – relied on P.J.G. v. P.S.S., 297 N.J.  Super. 468 (App. Div. 1997), invoked her "inherent equitable powers," and entered restraints in plaintiff's favor.

The court reversed, holding that even if it represents good law, P.J.G. requires that some other vehicle – such as another pending action between the parties – must be available for the issuance of restraints based on the trial court's inherent equitable powers. There being no action between the parties except the domestic violence action in question, the trial court was not authorized to impose restraints or do anything but dismiss plaintiff's domestic violence action without granting affirmative relief. A-4781-15T4

6. Hearsay is generally admissible in a VOP hearing

State v. Mosley  232 NJ 169 (2018)

Hearsay is generally admissible in a VOP hearing. When assessing the State’s ability to rely on hearsay to satisfy its proof obligation without contravening a defendant’s due process rights, a court fundamentally should consider the State’s reasons for relying on hearsay forms of evidence and the reliability of the evidence for its proposed purpose. In this matter, the State failed to provide any justification for relying on hearsay, and the hearsay evidence was not sufficiently reliable for its asserted purpose of substantiating the new criminal charges against defendant. A-24-16;

7. Police have duty to preserve video and evidence

State v Richardson 452 NJ Super. 124 (App. Div. 2018)

The court reverses defendant's drug possession conviction and holds that when the State refuses a defense attorney's diligent pre-indictment request to preserve and produce recordings, which the State or its law enforcement agencies created and are directly relevant to adjudicating an existing charge, the defendant is entitled to an adverse inference charge.

In this drug case, despite the attorney's timely preservation request, the State allowed the automatic erasure of a booking room video that likely recorded the search of defendant, which allegedly uncovered the drugs he was charged with possessing. The court also holds the court erred by allowing the State to introduce evidence that defendant gave a false name during the earlier traffic stop. Unreported A-2023-15T2  (App. Div. 2017)  source

https://www.law.com/njlawjournal/almID/1202800182543/State-v-Richardson/?mcode=1391052443336&curindex=65

8. Odor of pot does not police to search the trunk without consent or warrant

State v. Houston unreported App Div.

During a motor vehicle stop, officers observed respondent was not wearing a seatbelt and also detected the smell of burnt marijuana once respondent lowered the window. The officers removed respondent from the car and placed him under arrest after a search of his person produced five prescription pills, along with a large sum of money. During a search of the vehicle, officers found additional pills and marijuana. On motion to suppress evidence, the trial court concluded the "vehicle stop was lawful" because officers "observed motor vehicle violations." Additionally, the seizure of the burnt marijuana cigarette in the ashtray was "valid pursuant to a search incident to arrest," and because it was in "plain view."

However, the trial judge held the officers had no right to search the backpack or its contents, "or disassemble the car parts which covered the voids and the air vents of the car" without a warrant as respondent was handcuffed and removed from the car with no ability to destroy potential evidence.

On appeal, the court was tasked with determining whether the search exceeded the permissible scope pursuant to the automobile exception. Despite the unsettled landscape in prior precedents, the court reversed in part finding that the officers had authority to conduct a search of the passenger compartment of the vehicle based upon probable cause. Having found the partially smoked marijuana cigarette, as well as the baby bottles filled with suspected controlled substances in the passenger compartment, the officers had probable cause to search the contents of the backpack.    

However, the court affirmed suppression of the contraband found in the wheel panels as the automobile exception did not authorize such a search that "transcended all bounds of reasonableness." Docket A-0023-17T3 source https://www.law.com/njlawjournal/almID/1513134731NJA002317T/

9. PCR rejected here after 7 years

State v. Siervo App. Div. unreported

 More than seven years after pleading guilty in municipal court to two motor vehicle violations - driving while intoxicated and refusing to submit to a breath test - appellant sought to withdraw his pleas. Before accepting appellant's plea, the municipal court judge questioned appellant to assure he was entering the plea knowingly and voluntarily. Both the municipal court and the Law Division denied his application; the Law Division judge found the application was time-barred by Rule 3:22-12, which required, with certain exceptions, that a defendant file a first petition for post-conviction relief (PCR) not more than five years after a judgment of conviction was entered.

On appeal, appellant argued that the factual basis for his guilty plea did not set forth the essential elements of the offense and his motion was not governed by the time limitations of PCR. The court affirmed concluding appellant's application to withdraw his guilty plea was time-barred and his application did not fall within an exception to the statute of limitations. The court further remarked that the rules vest discretion in the respective courts to permit a defendant to make a post-sentence motion to withdraw a plea if doing so will correct a manifest injustice. Considering the problems caused by the passage of significant time following appellant's guilty pleas, appellant's non-assertion of innocence or misunderstanding of the nature of the charges, and the trial court's determination of appellant's motivation, appellant's motion to withdraw his pleas did not constitute manifest injustice. Accordingly, the court affirmed. A-0989-16T2

Source: https://www.law.com/njlawjournal/almID/1515209610NJA098916T/

10. Case addresses warrantless sweep of vehicle

State v. Mills unreported App. Div.

Following the trial court’s denial of his motion to suppress incriminating evidence that police had seized in a warrantless car search.  On appeal, appellant contended that the warrantless search of the car in which he had been riding as a passenger was unconstitutional. He further submitted that the trial court erred in rejecting his request to draw an adverse inference against respondent for failure to preserve two separate video recordings of the vehicle stop. The court remanded the suppression issues to the trial court for reconsideration in light of the Supreme Court’s recent opinion in State v. Robinson, 228 N.J. 529 (2017) which illuminated the requirements for a permissible warrantless “protective sweep” of a vehicle.

The court noted the record, including a DVD of the video recording, presented to the motion judge were unable to resolve fact-laden matters conclusively as to whether the officers had the legality to conduct a warrantless protective sweep of the vehicle. As such, the appropriate course of action was to remand the matter to reconsider its original suppression ruling. However, the court affirmed denial of an adverse inference as the failure to preserve the recording was not intentionally done to prejudice appellant’s rights. Accordingly, the court affirmed in part and remanded in part. 14-2-4387 Source

https://www.law.com/njlawjournal/almID/1507104105NewJerseyLawJournalA125815T1/