STATE OF NEW JERSEY VS. ENOC PIMENTEL (15-06-0517, PASSAIC COUNTY AND STATEWIDE) (A-2814-17T2)

STATE OF NEW JERSEY VS. ENOC PIMENTEL (15-06-0517, PASSAIC COUNTY AND STATEWIDE) (A-2814-17T2)

Defendant was charged under N.J.S.A. 2C:40-26 with the fourth-degree criminal offense of driving with a license that had been suspended because of multiple previous drunk driving convictions.

The court rejects defendant's claims that the 180-day mandatory minimum jail sentence prescribed by N.J.S.A. 2C:40-26 is cruel and unusual punishment, and that it also violates federal and state constitutional principles of equal protection and due process.

The stringent penalty chosen by the Legislature is constitutionally permissible to advance legitimate policy objectives of deterrence and public safety.

The court also reaffirms that the clear terms of statute do not allow judges the discretion to impose a lesser sentence.

IN THE MATTER OF REGISTRANT A.A. (ML-09-07-0111) (ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0678-18T1)

IN THE MATTER OF REGISTRANT A.A. (ML-09-07-0111) (ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0678-18T1)
This court addressed what general procedure and related due process protections are afforded to individuals who committed crimes outside New Jersey when law enforcement allege that those crimes are "similar to" Megan's Law offenses under N.J.S.A. 2C:7-1 to -23, and therefore require registration in this State. This court held that an assistant prosecutor first makes the "similar to" determination. If required to register, the offender can challenge that obligation in the Law Division. At a summary hearing, in accordance with R.B.,1 the judge should (1) undertake an element-by-element legal comparison of the criminal codes of New Jersey and the other state; and (2) compare the elements of the crimes with the purposes of the underlying criminal statutes. Consistent with R.B., the judge may also examine trustworthy relevant evidence as to the underlying factual predicate for the out-of-state conviction.

STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS. ALSOL CORPORATION (29-2017, MIDDLESEX COUNTY AND STATEWIDE) (A-3546-17T1)

STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS. ALSOL CORPORATION (29-2017, MIDDLESEX COUNTY AND STATEWIDE) (A-3546-17T1)
In this appeal, this court must determine whether the Law Division correctly decided that municipal courts have jurisdiction to impose civil penalties in an enforcement action filed by the New Jersey Department of Environmental Protection (DEP) pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.24 (the Spill Act). After reviewing the record developed by the parties, this court holds municipal courts have jurisdiction pursuant to N.J.S.A. 58:10-23.11u(d) to impose civil penalties under the Spill Act in a summary proceeding conducted pursuant to the Penalty Enforcement Law of 1999, N.J.S.A 2A:58-10 to -12.

Pot smell permitted search here STATE v. TYJON A. WILLIAMS

Pot smell permitted search here
STATE 
v.

TYJON A. WILLIAMS a/k/a
TYJOU WILLIAMS,

           Defendant-Respondent.


                    Submitted October 17, 2019 – Decided October 24, 2019

                    Before Judges Alvarez and Suter.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 18-04-
                    0512.

                  NOT FOR PUBLICATION WITHOUT THE                                APPROVAL OF THE APPELLATE DIVISION         This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the      internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.                                                              SUPERIOR COURT OF NEW JERSEY                                                          APPELLATE DIVISION                                                          DOCKET NO. A-4223-18T1
 PER CURIAM

      By leave granted, the State appeals a March 25, 2019 Law Division order

suppressing the evidence against defendant Tyjon Williams. See R. 2:2-4. We

now reverse.

      At the hearing, only the arresting officers testified. New Brunswick Police

Officers Justin Meccia and Richard Reed were operating an unmarked patrol car

on January 29, 2018, at 11:24 p.m., when they noticed a black Acura parked at

the intersection in a high-crime area. The officers ran the license plate number

through their computer and learned the registered owner's driver's license

privileges had been suspended.

      The officers made a U-turn, and followed the Acura. After it turned right,

the officers activated their lights. The vehicle, driven by defendant, stopped in

an area described by one of the officers as a residential parking lot. Defendant

lives in one of the homes or apartments adjoining the area where he parked.

      Both officers testified, corroborated by the mobile video recording played

in court during the hearing, that defendant when stopped immediately walked

towards them asking "what I do wrong?" On the video, one of the officers

responds that defendant was driving with a suspended license. Defendant was

repeatedly instructed by both officers to return to his car. He continued to


                                                                         A-4223-18T1
                                       2
 approach and was arrested for obstruction. While searching his person incident

to the arrest, the officers discovered $729 in cash. Both officers noted that

defendant smelled of marijuana. Meccia specifically recalled the odor was of

raw marijuana.

      After placing defendant in the rear of their vehicle, the officers

approached defendant's car. A voice is heard on the recording commenting "a

strong odor in the back seat" emanated from the vehicle. A bag containing

thirty-three grams of raw marijuana and a Tupperware container with plastic

baggies were discovered underneath the passenger seat.

      The judge found the facts, generally undisputed, as we have described

them including that defendant was initially arrested for obstruction,  N.J.S.A.

2C:29-1, for which he was not formally charged, because of his failure to obey

police commands. In contrast to the testimony, however, the judge described

the area where defendant came to a stop as a driveway.

      The judge granted the motion as a matter of law because "the vehicle was

not mobile at that time . . . [and] defendant was already in custody." Since the

vehicle was parked "in the driveway[,]" and he opined that the officers had

secured the scene, he concluded no exception to the warrant requirement

applied.


                                                                        A-4223-18T1
                                       3
       The State's sole point on appeal is:

            THE    TRIAL    COURT     ERRONEOUSLY
            SUPPRESSED    EVIDENCE     FOUND    IN
            DEFENDANT'S CAR FOLLOWING A VALID AND
            UNFOR[E]SEEABLE MOTOR VEHICLE STOP,
            FOLLOWED BY DEFENDANT'S FAILURE TO
            OBEY AN ORDER OF THE POLICE AND
            CREDIBLE EVIDENCE OF A STRONG SMELL OF
            MARIJUANA EM[A]NATING FROM THE CAR.

      To restate the issue, the question posed is whether the automobile

exception to the Fourth Amendment's warrant requirement applies. It is well-

established that the Fourth Amendment of the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution, require police to obtain

warrants before making searches and seizures.          Warrantless searches and

seizures are presumptively invalid. See State v. Rodriguez,  459 N.J. Super. 13,

20 (App. Div. 2019).

      In State v. Witt,  223 N.J. 409 (2015), the Court "announced . . . a sharp

departure from a more narrow construction of the automobile exception."

Rodriguez,  459 N.J. Super. at 21. As Rodriguez explains, the Witt decision

observed that the "multi-factor exigent circumstances test" of prior case law was

"difficult to apply with consistency, particularly for law enforcement officers on

patrol, and placed upon them 'unrealistic and impracticable burdens.'" Ibid.

(citing Witt,  223 N.J. at 414-15). The Court in Witt restated the test to authorize

                                                                           A-4223-18T1
                                        4
 automobile searches where "(1) the police have probable cause to believe the

vehicle contains evidence of a criminal offense; and (2) the circumstances giving

rise to probable cause are unforeseeable and spontaneous." Id. at 22 (citing Witt,

 223 N.J. at 447-48).

      In this case, the police had a reasonable and articulable suspicion that a

driver was violating motor vehicle laws, and thus stopped the Acura because the

registered owner's license was suspended. State v. Dunbar,  229 N.J. 521, 533

(2017). Defendant's subsequent conduct of approaching police despite being

repeatedly commanded to return to his car, established probable cause for an

arrest for obstruction. Once arrested, both officers smelled a strong odor of

marijuana on defendant's person. Thus, the police had probable cause to search

the vehicle for drugs. The strong odor of marijuana emanating from the car

bolstered the probable cause for the officers to lawfully search the passenger

compartment.

      The circumstances which gave rise to this search were clearly unforeseen

and spontaneous. It makes no difference here, contrary to the Law Division

judge's conclusion, that defendant drove his car to a residential parking area

adjacent to his home. An unlicensed driver, like a drunken driver, cannot defeat

enforcement of the motor vehicle laws by entering a restricted parking area, such


                                                                          A-4223-18T1
                                        5
 as the one in this case. See State v. Nikola,  359 N.J. Super. 573, 586 (App. Div.

2003) (finding that defendant's entry into an open garage did not prevent her

warrantless arrest for driving while intoxicated,  N.J.S.A. 39:4-50).

      After defendant was lawfully arrested, the officers smelled marijuana on

his person, giving rise to probable cause to search his vehicle. The fact that the

smell of marijuana from the car was noticeable before the officers entered the

vehicle simply added an additional factor contributing to probable cause.

      The three rationales that anchor the current automobile exception apply in

this case. See Witt,  223 N.J. at 422-23 ("(1) the inherent mobility of the vehicle;

(2) the lesser expectation of privacy in an automobile compared to a home; and

(3) the recognition that a Fourth Amendment intrusion occasioned by a prompt

search based on probable cause is not necessarily greater than a prolonged

detention of the vehicle and its occupants while the police secure a warrant.")

(internal citations omitted).

      The vehicle continued to be mobile regardless of its location off-street. In

the same way it pulled into the residential parking area, it could have as easily

pulled out. The proximity of the parking area to defendant's home did not create

a reasonable expectation of privacy that took the search out of the automobile

exception. The intrusion upon defendant's privacy was no different regardless


                                                                           A-4223-18T1
                                        6
 of the location – here it was still, essentially, a roadside stop. See Witt,  223 N.J.

at 422-23.

      The officers were not obligated to obtain a warrant because defendant had

been taken into custody and was seated in the back of the police car, or because

the arrest was made after he parked his vehicle in an open area near his home.

The judge's observation that the scene was "secured" has little meaning in this

case. The automobile exception as defined in Witt applies. The motion should

not have been granted.

      Reversed.

Drug dog was ok here at same time as stop for driving while suspended STATE v FLOYD

Drug dog was ok here at same time as stop for driving while suspended STATE v

FLOYD,

           Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE                                APPROVAL OF THE APPELLATE DIVISION         This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the      internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.                                                              SUPERIOR COURT OF NEW JERSEY                                                          APPELLATE DIVISION                                                          DOCKET NO. A-0696-18T1
 PER CURIAM

      On leave granted, the State appeals an August 27, 2018 Law Division

order suppressing drugs seized during a roadside stop from defendant Garry

Floyd's car. As a result of the seizure, defendant was indicted for narcotics

offenses.1 In light of State v. Witt,  223 N.J. 409 (2015), we now reverse the

judge's decision that the automobile exception to the warrant requirement did

not apply to this roadside stop.

      The facts are stipulated.  2 In July 2019, Woodbridge Township Police

Detective Jaremczak3 observed a narcotics sale, during which he identified the

seller as an individual he referred to only as S1.           Jaremczak conducted


1
  The five-count indictment charges defendant with third-degree possession of
heroin, a controlled dangerous substance (CDS),  N.J.S.A. 2C:35-10(a)(1); third-
degree possession of cocaine,  N.J.S.A. 2C:35-10(a)(1); first-degree possession
of cocaine with intent to distribute,  N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1);
second-degree possession of cocaine with intent to distribute within 500 feet of
public property,  N.J.S.A. 2C:35-7.1; and third-degree financial facilitation of
criminal activity,  N.J.S.A. 2C:21-25(a).
 2 R. 3:5-7(c) requires testimony to be taken "[i]f material facts are disputed . . ."
in a suppression motion. In this case, defendant alleged, and argues on appeal,
that the investigating officer had probable cause before the search was
conducted. He claims that the roadside motor vehicle stop was a ruse for a
warrantless seizure. Testimony and credibility findings would have assisted our
review.
3
  The briefs and the transcript of oral argument do not contain the full names of
any of the officers involved.
                                                                             A-0696-18T1
                                         2
 surveillance at S1's home over the next few weeks and witnessed a number of

suspected drug transactions.     In August, a confidential informant whom

Jaremczak had found reliable in the past, told him that S1 was expecting a large

shipment of cocaine.

      Accordingly, Jaremczak continued to surveil S1's home over several days.

On August 18, 2016, Jaremczak saw a white Mercedes parked in front of S1's

residence. The driver went into the house for about twenty minutes, and talked

to S1 for another ten on the front lawn. The driver then returned to the Mercedes

and drove away.

      On August 19, Jaremczak and another officer, Bonilla, located S1's

vehicle in Perth Amboy. While observing S1's car, Jaremczak asked Bonilla to

look for the Mercedes, which Bonilla found nearby. The Mercedes travelled to

the location of S1's car, and then left the area in tandem with S1's vehicle.

Jaremczak followed them back to S1's residence, which S1 entered through the

front door.

      Meanwhile, the driver of the Mercedes walked down the driveway

alongside the house towards the rear, disappeared, returned, and threw

something in the trunk of the vehicle. Jaremczak did not see what the driver

threw into the trunk.    When the car pulled away, Jaremczak and Bonilla


                                                                         A-0696-18T1
                                       3
 followed. During the next few miles, the officers witnessed the driver, later

identified as defendant, committing multiple motor vehicle violations, including

operating the Mercedes at seventy miles per hour in a fifty mile per hour zone,

passing other drivers at a high rate of speed from the left- and right-hand lanes,

and tailgating a tractor trailer.

      Since no testimony was taken, we do not know why a third officer, a

Detective Grogan, was asked to stop the motor vehicle while it was in Jaremczak

and Bonilla's view. Grogan, as instructed by Jaremczak, ran defendant's name

through his computer, ascertaining that defendant's license was suspended and

that he had a motor vehicle history of driving while suspended.          Also at

Jaremczak's instruction, Grogan arrested defendant. Defendant was driven to

the Woodbridge police headquarters while the officers remained at the scene.

      Grogan had been traveling with his drug detection dog Blade, whom he

brought out to examine the exterior of the Mercedes for narcotics. Blade alerted

Grogan to the presence of contraband in the trunk, which was then searched.

      Jaremczak seized two yellow ShopRite bags, one inside the other,

containing a large clear bag holding approximately 495 grams of cocaine, from

the trunk. A brown Gucci sunglasses case containing a small clear bag holding

0.9 grams of cocaine, and a small yellow bag holding 1.5 grams of powder


                                                                          A-0696-18T1
                                        4
 heroin were taken from the far left and right areas of the trunk. Two of the three

pieces of mail in the trunk were addressed to defendant.

      Grogan discovered a small blue bag of 0.3 grams of marijuana in the rear

seat. Defendant and another person were listed as the owners of the Mercedes

on documents in the glove compartment. Police also seized three pieces of mail

addressed to defendant as well as a mailing box with defendant's name on it from

the rear passenger floor. The Mercedes was towed to the Woodbridge Police

Department impound yard, and complaints were filed against defendant.

      In his oral decision, the Law Division judge seemed to say that the

investigation before the sniff provided facts sufficient for an anticipatory

warrant. At a minimum, he said:

            there was at least probable cause developed to believe
            that there was drug dealing activity engaged in by S1 as
            a result of the initial arrest of the person who S1 sold
            drugs to back in July 2016, which led to an
            investigation and surveillance over the next couple of
            weeks of S1 . . . .

The judge also found that once the dog sniff was positive, the officers had an

obligation to obtain a search warrant. The car was secured and could readily

have been towed before the search, as was done after. Thus he opined that since

the officers had taken defendant into custody, and had probable cause to search



                                                                          A-0696-18T1
                                        5
 the vehicle, they should have obtained a warrant, making the roadside search

illegal.

       On appeal, the State raises one issue for our consideration:

             THE    TRIAL    COURT     ERRONEOUSLY
             SUPPRESSED    EVIDENCE     FOUND    IN
             DEFENDANT'S CAR FOLLOWING A VALID AND
             UNFORESEEABLE MOTOR VEHICLE STOP AND
             A CANINE ALERT TO NARCOT[IC]S IN THE
             TRUNK OF DEFENDANT'S CAR.

       In light of Witt, and the law that has since developed, most notably, State

v. Rodriguez,  459 N.J. Super. 13 (App. Div. 2019), the search of defendant's

vehicle was proper. We examine this legal issue de novo. See State v. Gamble,

 218 N.J. 412, 425 (2014); State v. Rockford,  213 N.J. 424, 440 (2013); State v.

Gandhi,  201 N.J. 161, 176 (2010). Here, because the facts, incomplete as they

may be, were stipulated, we only address whether the judge erred as a matter of

law and do not consider whether his factual findings were supported by the

record.    See Rowe v. Mazel Thirty, LLC,  209 N.J. 35, 50 (2012) (citing

Gilhooley v. Cty. of Union,  164 N.J. 533, 545 (2000)).

       It bears noting that probable cause did not exist at the point the officer

saw defendant throw an unknown object into the back of the Mercedes. That

the confidential informant claimed a substantial amount of narcotics would be

delivered to S1 did not establish probable cause sufficient for the issuance of a

                                                                          A-0696-18T1
                                        6
 warrant, much less an anticipatory warrant. No date, time, manner of delivery,

or other details were included in the tip. The confidential informant did not

mention defendant's name. Hence it was not until the sniff took place that

probable cause was developed.

      It is black-letter law that the officers could lawfully deploy the canine. A

sniff "does not transform an otherwise lawful seizure into a search that triggers

constitutional protections." State v. Dunbar,  229 N.J. 521, 538 (2017). "If an

officer has articulable reasonable suspicion independent from the reason for the

traffic stop that a suspect possesses narcotics, the officer may continue a

detention to administer a canine sniff." Id. at 540. So long as the sniff does not

unduly extend the stop, it is permissible.

      The officers lawfully stopped defendant because of his motor vehicle

infractions, but had only an uncorroborated hunch that defendant possessed

drugs. Once they stopped him, they were entitled to deploy the canine because

they had a reasonable, articulable suspicion — but not probable cause — that

defendant had narcotics in the trunk. It was not until the dog responded that

probable cause arose.

      Pursuant to Witt, officers may now conduct a warrantless search during a

roadside stop "in situations where: (1) the police have probable cause to believe


                                                                          A-0696-18T1
                                        7
 the vehicle contains evidence of a criminal offense; and (2) the circumstances

giving rise to probable cause are unforeseeable and spontaneous." Rodriguez,

 459 N.J. Super. at 22 (citing Witt,  223 N.J. at 447-48). Applying the Witt

standard, this automobile search passes constitutional muster.

      The circumstances that gave rise to the sniff were "unforeseeable and

spontaneous." Had defendant not violated the motor vehicle laws, the officers

could not have stopped him. Although the officers suspected defendant of

involvement in narcotics trafficking with S1, on this record, they had no specific

information regarding his role or the contents of the plastic bag — they only had

information regarding S1 and a mere hunch about defendant.

      The item defendant placed in his trunk could have been innocuous. Not

all objects even a known drug dealer obtains from a suspected drug dealer are

going to be contraband. The bag could have contained anything. Although the

officers had information regarding the anticipated delivery of a substantial

amount of drugs to S1, they knew nothing about defendant's identity or his role

in the transaction until after his arrest. Furthermore, defendant was taking the

package from S1's home — not delivering it.

      The officers were unexpectedly able to lawfully stop defendant; once they

stopped defendant, the officers were entitled to conduct a canine sniff. Once


                                                                          A-0696-18T1
                                        8
 they received a positive response to the sniff, Witt did not require them to obtain

a warrant and impound the vehicle before searching it. These circumstances are

not the type of "fake exigencies" discouraged by the Witt Court. Rodriguez

explains:

            Viewed in its proper context, the Court's reference in
            Witt to "fake exigencies" signifies that the police
            cannot rely upon a contrived justification to search an
            impounded vehicle without a warrant merely because
            the vehicle could have been searched earlier at the
            roadside. The whole tenor of the Witt opinion is to
            eliminate the need for police to establish "exigencies"
            at the roadside to proceed with a warrantless search.
            Instead, the Court readopted a bright-line rule, one that
            is predicated on the requirements of spontaneity and
            probable cause.

            [Rodriguez,  459 N.J. Super. at 24.]

      That defendant was in custody does not impact the analysis. "[T]he

automobile exception is not nullified" because a suspect is under arrest.

Rodriguez,  459 N.J. Super. at 22. Witt and Dunbar control, and make this

warrantless roadside search proper.

      Reversed and remanded. We do not retain jurisdiction.

STATE OF NEW JERSEY VS. MICHAEL CLARITY (13-10-0621, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4596-17T3)

STATE OF NEW JERSEY VS. MICHAEL CLARITY (13-10-0621, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4596-17T3)

When originally sentenced, defendant was found to be a persistent offender eligible for an extended term under N.J.S.A. 2C:44-3(a), even though his last prior conviction occurred more than ten years earlier; the sentencing judge determined that the probationary term imposed on that earlier conviction constituted "confinement" and therefore reasoned that defendant's "last release from confinement" occurred within ten years. We rejected the holding that probation may be equated with confinement and remanded for resentencing. State v. Clarity, 454 N.J. Super. 603 (App. Div. 2018). At the subsequent sentencing proceedings, the State came forward with new information purporting to show defendant violated the terms of the earlier probationary sentence and was imprisoned for thirty months as a result, so that his last release from confinement occurred within ten years. When confronted with this information at resentencing, defense counsel conceded defendant was eligible to be sentenced to an extended term as a persistent offender.

STATE OF NEW JERSEY VS. VINCENT A. PALEY (18-11-1495, MIDDLESEX COUNTY AND STATEWIDE) (A-0308-19T6)

STATE OF NEW JERSEY VS. VINCENT A. PALEY (18-11-1495, MIDDLESEX COUNTY AND STATEWIDE) (A-0308-19T6)

In this interlocutory appeal, the court is asked to determine whether the trial court's August 28, 2019 order violated N.J.S.A. 2A:162-22(a)(2)(a), the speedy trial requirements of the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26, and Rule 3:25-4(c)(1). The order excluded 137 days – August 19, 2019 to January 2, 2020 – from the October 15, 2019 speedy trial deadline for defendant Vincent A. Paley. Defendant is consequently confined in jail until his scheduled January 2, 2020 trial date.

Kenneth Vercammen interviewed on News12NJ TV on waiver of Miranda rights after criminal arrest

Kenneth Vercammen interviewed on News12NJ TV on waiver of Miranda rights after criminal arrest

http://newjersey.news12.com/story/41241785/defense-argues-driver-in-deadly-crash-was-too-high-to-understand-rights?fbclid=IwAR1gqhuDnVleWeUvwArND3UOzGWPWBHTitAHRMwwX-N1x12jw0ItImU7es0#.Xbjwq_dQmKk.facebook

   The NJ Supreme Court this year held Miranda violated here where detectives failed to advise subject of charges State v. Vincenty237 NJ 122 (2019)

HELD: The record reveals that the detectives failed to inform Vincenty of the charges filed against him when they read him his rights and asked him to waive his right against self- incrimination. That failure deprived Vincenty of the ability to knowingly and intelligently waive his right against self-incrimination. Pursuant to A.G.D., Vincenty’s motion to suppress should have been granted. 

1. The right against self-incrimination is one of the most important protections of the criminal law. Individuals, as holders of the right, may waive the right against self- incrimination. Law enforcement officers must first advise a suspect of the right against self- incrimination before attempting to obtain a waiver of the right. The State carries the burden of proving beyond a reasonable doubt that the suspect’s waiver was knowing, intelligent, and voluntary in light of all the circumstances. 

2. In A.G.D., detectives questioned the defendant at his home about allegations of sexual abuse. 178 N.J. at 59. The detectives did not tell the defendant that a warrant for his arrest had been issued. Ibid. The defendant confessed to the alleged sexual abuse and was subsequently convicted of related offenses. Id. at 60-61. Before trial, the defendant moved to suppress his confession. Id. at 61. The Court held that the defendant’s confession should have been suppressed, id. at 69, because the “government’s failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights,” id. at 68. If suspects are not informed that a criminal complaint or arrest warrant has been filed against them, they necessarily lack “critically important information” and thus “the State cannot sustain its burden” of proving a suspect has knowingly and intelligently waived the right against self-incrimination. Ibid. 

3. A.G.D. thus calls for law enforcement officials to make a simple declaratory statement at the outset of an interrogation that informs a defendant of the essence of the charges filed against him. That information should not be woven into accusatory questions posed during the interview. The State may choose to notify defendants immediately before or after administering Miranda warnings, so long as defendants are aware of the charges pending against them before they are asked to waive the right to self-incrimination. 

4. Vincenty’s interrogation is precisely what A.G.D. prohibits, and it substantiates A.G.D.’s holding. Unaware that charges had been filed against him, Vincenty appeared willing and ready to waive his right against self-incrimination. However, when Vincenty was informed of the criminal charges filed against him, everything changed. His willingness to speak with the detectives dissipated. As that chain of events demonstrates, Vincenty’s ability to knowingly and intelligently decide whether to waive his right against self-incrimination was fundamentally altered when he was informed of the criminal charges filed against him. Withholding that critically important information deprived Vincenty of the ability to knowingly and voluntarily waive the right against self-incrimination.  

5. The trial court and Appellate Division erred in holding Vincenty knowingly and intelligently waived his right against self-incrimination. Consideration of harmless error would not change matters here because some of Vincenty’s statements could be fairly characterized as inculpatory, and Vincenty’s conduct reveals that his decision to plead guilty was influenced by the trial court’s suppression ruling. 

Miranda warnings require police to advise those arrested. If police forget to give Miranda warning, statement or confessions can be used against that person. However, failure to give Miranda warnings does not invalidate an arrest.

Miranda applies not only upon arrest, but also upon custodial interrogation. However, failure to properly give Miranda warning does not stop of prosecution. It only throws out any confession.

IN THE MATTER OF REGISTRANT, B.B. IN THE MATTER OF REGISTRANT, A.V. (ML-99-07-0009 AND ML-99-07-0140, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) (A-0060-18T1/A-0572-18T1)

IN THE MATTER OF REGISTRANT, B.B. IN THE MATTER OF REGISTRANT, A.V. (ML-99-07-0009 AND ML-99-07-0140, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) (A-0060-18T1/A-0572-18T1) This case concerns superfluous language contained in orders relieving sex offenders from Community Supervision for Life, N.J.S.A. 2C:43-6.4, ordering that the court rendered no decision as to any obligations the registrants may have in any other jurisdiction or state as a result of their status as a convicted sex offender, and shall remain in full force and effect until relief is granted in other jurisdictions. The subject language was unnecessary and improper because the language was ambiguous, future, contingent, and uncertain. Therefore, this court reverses and remands for the entry of orders without the superfluous language.

KEVIN BLANCHARD VS. NEW JERSEY DEPARMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)(A-3834-17T4)

KEVIN BLANCHARD VS. NEW JERSEY DEPARMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)(A-3834-17T4)

In this Department of Corrections disciplinary appeal, the court holds that the Department acted arbitrarily, capriciously or unreasonably in denying a confirmatory laboratory test of a powder, seized from the inmate, which a field test indicated contained cocaine. The court reaches this conclusion in light of the field test's inherent limitations; the lack of other direct or circumstantial evidence that the inmate possessed drugs; the department's regulation compelling routine confirmatory tests of drug specimens; and the absence of any reasoned explanation for the Department's refusal to subject the seized powder to a confirmatory laboratory test.

STATE OF NEW JERSEY VS. GREGORY A. MARTINEZ (17-05-0586, MIDDLESEX COUNTY AND STATEWIDE) (A-3479-18T4)

STATE OF NEW JERSEY VS. GREGORY A. MARTINEZ (17-05-0586, MIDDLESEX COUNTY AND STATEWIDE) (A-3479-18T4)

This novel case concerns a prosecutor's office's use of body wires on a paid informant, an anticipated trial witness for the State in a narcotics case, to secretly monitor and record a criminal defense attorney's pre-trial interview of that informant.

STATE OF NEW JERSEY VS. JOE D. NICOLAS (15-09-1200, BERGEN COUNTY AND STATEWIDE) (A-4852-17T1)

STATE OF NEW JERSEY VS. JOE D. NICOLAS (15-09-1200, BERGEN COUNTY AND STATEWIDE) (A-4852-17T1)

Defendant appealed from a judgment of conviction, arguing the trial court should have granted his motion to dismiss the indictment because the substance he possessed alpha-PVP, also known as "flakka", was not listed as a Schedule I drug under New Jersey law. When the federal government schedules a substance, N.J.S.A. 24:21-3(c) gives the Director of Consumer Affairs in the Department of Law and Public Safety thirty days to do one of two things: (1) control the substance consistent with the federal government's scheduling, or (2) file an objection in the New Jersey Register. Absent is a requirement that the Director give notice when he or she intends to control the substance as directed by federal law. Thus, if the Director fails to file an objection to the federal government's scheduling within thirty days, as was the case with alpha-PVP, the Director must control the substance consonant with federal law. Thus alpha-PVP was automatically included in Schedule I because the Director did not object to the federal government's designation.

In the Matter of Registrant G.H.; In the Matter of Registrant G.A. (081737) (Union County, Middlesex County and Statewide)(A-38-18; 081737)

In the Matter of Registrant G.H.; In the Matter of Registrant G.A. (081737) (Union County, Middlesex County and Statewide)(A-38-18; 081737)

Like the Appellate Division, the Court finds no statement of legislative intent, express or implied, that subsection (g) should be applied retroactively. Nor does it find that subsection (g) was curative, or that the parties’ expectations warranted retroactive application.

Fall Municipal Court Law Review 2019

Fall Municipal Court Law Review 2019

1. Reduced DL suspension for DWI with law Expanding Use of Ignition Interlock Devices P.L.2019, c.248.

2. Police false promise of no jail and leniency required suppression of confessionState v. L.H.

3  Weapons search not permitted here after DV TRO State v. Hemenway

 4 For DWI PCR on prior uncounseled DWI proceeding, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented

State v. Patel

5. When a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrantMitchell v. Wisconsin

6. Refusal of consent to search is inadmissible State v Tung

8Photo Municipal Court Annual Meeting Seminar 

9 Office for rent Professional Office Space available in Edison Law Office

10 Recent NJ Municipal Court Cases webinar December 11, 2019

1. Reduced DL suspension for DWI with law Expanding Use of Ignition Interlock Devices P.L.2019, c.248.

     On 8/23/2019 new laws signed expanding the use of ignition interlock device for those convicted of drunk driving offenses and of refusing breath tests. The legislation (S824) also reduces the length of license suspension and forfeitures for these offenses. New law takes effect December 1, 2019
    This law requires that first time offenders install ignition interlock devices (IID), at a cost to the offender. IIDs and suspensions from then on are based upon the severity of the offense.
         

If someone does not own a car.

n  Attest to Court that you don’t own, lease or operate a motor vehicle – Lose License for Interlock Period

Offense	BAC	Suspension
1st	0.08 to 0.10	3 months
1st	0.10 to 0.15	7 to 12 months if you don’t own a car
1st	Over 0.15	9 to 15 months if you don’t own a car
2d offense		2 to 4 years if you don’t own a car

    It is better to buy a cheap car and pay for interlock so you can get your license restored

First-time offenders with BAC of:
0.08 to 0.10 

Fine	Old $250-400 + 389	New same
IDRC	12-48 hrs	same
Jail	30 days discretionary	same
Suspension	90 days	New Until install of Interlock
Interlock	6 months – 1yr discretionary (after suspension)	3 months after install Source: NJ Bar seminar

 (1)   For the first offense:

     (i)    if the person's blood alcohol concentration is 0.08% or higher but less than 0.10%, or the person operates a motor vehicle while under the influence of intoxicating liquor, or the person permits another person who is under the influence of intoxicating liquor to operate a motor vehicle owned by him or in his custody or control or permits another person with a blood alcohol concentration of 0.08% or higher but less than 0.10% to operate a motor vehicle, to a fine of not less than $250 nor more than $400 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers established under subsection (f) of this section and, in the discretion of the court, a term of imprisonment of not more than 30 days [and] . In addition, the court shall [forthwith] order the person to forfeit [his] the right to operate a motor vehicle over the highways of this State [for a period of three months] until the person installs an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, for the purpose of complying with the provisions of  P.L.1999, c.417 (C.39:4-50.16 et al.); 

     First Offense 0.10 to 0.15 - must install ignition interlock at own cost

Fine	Old $300-500 + 389	New same
IDRC	12- 48 hrs	same
Jail	30 days discretionary	same
DUID	7-12 months DL suspension	same
Suspension	7-12 months	New Until install of interlock
Interlock	6 months -1yr Discretionary (after suspension)	7-12 months after install Source: NJ Bar Assoc Seminar

 (ii)   if the person's blood alcohol concentration is 0.10% or higher, or the person operates a motor vehicle while under the influence of narcotic, hallucinogenic or habit-producing drug, or the person permits another person who is under the influence of narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control, or permits another person with a blood alcohol concentration of 0.10% or more to operate a motor vehicle, to a fine of not less than $300 nor more than $500 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers established under subsection (f) of this section and, in the discretion of the court, a term of imprisonment of not more than 30 days [and]; 

     in the case of a person who is convicted of operating a motor vehicle while under the influence of a narcotic, hallucinogenic or habit-producing drug or permitting another person who is under the influence of narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by the person or under the person’s custody or control, the person shall [forthwith] forfeit [his] the right to operate a motor vehicle over the highways of this State for a period of not less than seven months nor more than one year;  

higher than 0.15 - must install ignition interlock at own cost

Fine	$300-500 +389	same
IDRC	12 -48 hrs	same
Jail	30 days discretionary	same
Suspension	7-12 months	Until install of interlock and for 4- 6 months after installation
Interlock	6 months – 1yr mandatory during suspension and 6 months -1 yr after suspension	Interlock remains between 9- 15 months after license restored Source: NJ Bar Assoc Seminar

      in the case of a person whose blood alcohol concentration is 0.10% or higher but less than 0.15%, the person shall forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, for the purpose of complying with the provisions of  P.L.1999, c.417 (C.39:4-50.16 et al.);  

     in the case of a person whose blood alcohol concentration is 0.15% or higher, the person shall forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than four months or more than six months following installation of an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, for the purpose of complying with the provisions of  P.L.1999, c.417 (C.39:4-50.16 et al.);

Second

Fine	Old $500-1000 +389	New same
IDRC Community Service	48 hours 30 days	Same same
Jail	2 – 90 days discretionary (substitute IDRC for jail)	same
Suspension	2 years	1 – 2 years
Interlock	1-3 years + during suspension period	During period of suspension and 2- 4 years after restoration Source: NJ Bar Assoc Seminar

   For a second violation, a person shall be subject to a fine of not less than $500 nor more than $1,000, and shall be ordered by the court to perform community service for a period of 30 days, which shall be of such form and on [such] terms [as] the court shall deem appropriate under the circumstances, and shall be sentenced to imprisonment for a term of not less than 48 consecutive hours, which shall not be suspended or served on probation, [nor] or more than 90 days, and shall forfeit [his] the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years upon conviction[, and after].  

     After the expiration of [said] the license forfeiture period, [he] the person may make application to the Chief Administrator of the New Jersey Motor Vehicle Commission for a license to operate a motor vehicle, which application may be granted at the discretion of the chief administrator, consistent with subsection (b) of this section.  For a second violation, a person also shall be required to install an ignition interlock device under the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.).  

Third offense

Fine	Old $1000 +389	New same
IDRC	48 hours	same
Jail	180 days w/ possible 90 reduction for treatment	same
Suspension	10 years	8 years
Interlock	During period of suspension and 2-4 years after restoration

     (3)   For a third or subsequent violation, a person shall be subject to a fine of $1,000, and shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center and shall thereafter forfeit [his] the right to operate a motor vehicle over the highways of this State for [10] eight years.    

     For a third or subsequent violation, a person also shall be required to install an ignition interlock device under the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.).   

Refusal

n  If in connection with 1^stDWI then suspended until the defendant installs an interlock for 9-15 months after the license is restored

Section 2 of P.L.1981, c.512 (C.39:4-50.4a) is amended to read as follows:  

     2.    a.  [Except as provided in subsection b. of this section, the] The municipal court shall [revoke the right to operate a motor vehicle of] order any [operator] person who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14), [shall refuse] refuses to submit , upon request, to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) [when requested to do so, for not less than seven months or more than one year unless]:

(1)       if the refusal was in connection with a first offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.); 

n  If in connection with a 2^ndDWI license is suspended for 1 to 2 years after the interlock is installed; it shall remain 2 to 4 years after the restoration

(2)       if the refusal was in connection with a second offense under this section, [in which case the revocation period shall be for two years or unless], to forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.); 

Third Refusal If the refusal was in connection with a 3^rdor subsequent DWI then license is suspended for 8 years after the interlock device is installed and remains 2 to 4 years after the license is restored

All other penalties for refusal are the same – IDRC, Fines, Penalties, etc.

     (3) if the refusal was in connection with a third or subsequent offense under this section [in which case the revocation shall be for ten years], to forfeit the right to operate a motor vehicle over the highways of this State for a period of eight years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of  P.L.1999, c.417 (C.39:4-50.16 et al.).  A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section.  

What if you are poor? Revised N.J.S.A.39:4-50.17

u(a) If family income does not exceed 100% of the federal poverty level, the monthly leasing fee is 50% of the regular fee.

u(b) If family income does not exceed 149% of the federal poverty level, the monthly leasing fee shall be 75% of the regular fee.

u(c) Qualifying individuals are not be required to pay 

uinstallation fee

ucost for monitoring of the device

ufees for calibration or removal of the device.

Federal Poverty Level (1/11/2019): $12,490/year + $4,420 each additional person – U.S. Dept. of Health and Human Services[source: NJ Bar seminar]

39:4-50.17: whether the offender qualifies for a reduced fee for monthly rental of an ignition interlock device pursuant to section 6 of P.L.2009, c.201 (C.39:4-50.17a) categorized by family income exceeding 100 percent or 149 percent of the federal poverty level; the percentage these offenders constitute of the total  number of offenders; and the number of these offenders that reside in each county;   

School zone DWI eliminated

39:4-50.19 Violation of law; penalties.  No changes

   4. a. A person who fails to install an interlock device ordered by the court in a motor vehicle owned, leased or regularly operated by him shall have his driver's license suspended for one year, in addition to any other suspension or revocation imposed under R.S.39:4-50, unless the court determines a valid reason exists for the failure to comply.  A person in whose vehicle an interlock device is installed pursuant to a court order who drives that vehicle after it has been started by any means other than his own blowing into the device or who drives a vehicle that is not equipped with such a device shall have his driver's license suspended for one year, in addition to any other penalty applicable by law.

   b.   A person is a disorderly person who:

   (1)   blows into an interlock device or otherwise starts a motor vehicle equipped with such a device for the purpose of providing an operable motor vehicle to a person who has been ordered by the court to install the device in the vehicle;

   (2)   tampers or in any way circumvents the operation of an interlock device; or

   (3)   knowingly rents, leases or lends a motor vehicle not equipped with an interlock device to a person who has been ordered by the court to install an interlock device in a vehicle he owns, leases or regularly operates.

   c.   The provisions of subsection b. of this section shall not apply if a motor vehicle required to be equipped with an ignition interlock device is started by a person for the purpose of safety or mechanical repair of the device or the vehicle, provided the person subject to the court order does not operate the vehicle.

   L.1999, c.417, s.4; amended 2009, c.201, s.3.

revised 39:4-50.18  Notification to NJMVC of ignition interlock device installation.

   3. a. The court shall notify the Chief Administrator of the New Jersey Motor Vehicle Commission when a person has been ordered to install an ignition interlock device in a vehicle pursuant to the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.).  The commission shall require that the device be installed before restoration of the person's driver's license that has been forfeited pursuant to R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a).

   b.   The commission shall imprint a notation on the driver's license stating that the person shall not operate a motor vehicle unless it is equipped with an ignition interlock device and shall enter this requirement in the person's driving record.  The expiration date of the device requirement shall not be imprinted on the license. 

   c.   Notwithstanding the provisions of section 2 of P.L.1999, c.417 (C.39:4-50.17), an ignition interlock device shall be removed on the date the person completes the installation period only if the person submits to the chief administrator a certification from the vendor that:

   (1)   during the final 30 days of the installation period there was not more than one failure to take or pass a test with a blood alcohol concentration of 0.08% or higher unless a re-test conducted within five minutes of the initial test indicates a blood alcohol concentration of less than 0.08%; and

   (2)   the person complied with all required maintenance, repair, calibration, monitoring, and inspection requirements related to the device.

   d.   If the vendor does not issue a certification to the person because there were two or more violations of paragraph (1) of subsection c. of this section, the vendor shall forward the violation information to the chief administrator and the court.  The court shall decide whether to extend the period of ignition interlock device installation for up to 90 days or issue the certification to the chief administrator.

   L.1999, c.417, s.3; amended 2019, c.248, s.5.

During of the period of IID installation imposed by the sentencing judge, the defendant may not operate any vehicle that is not equipped with an IID. (NJSA 39:4-50.17(c)).  A notation to this effect will be imprinted on the operator’s license. (NJSA 39:4-50.18(b)).

2. Police false promise of no jail and leniency required suppression of confessionState v. L.H.

    The State failed to prove beyond a reasonable doubt that, under the totality of the circumstances, defendant’s statement was voluntary. Defendant may withdraw his guilty plea. The failure to record the identification procedure as required by Delgado requires a remand to allow defendant the benefit of a hearing to inquire into the reliability of the identification and any other remedy deemed appropriate by the trial court. (A-59-17)

3  Weapons search not permitted here after DV TRO State v. Hemenway

       The beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms. Before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded suspicion. (A-19-18)

4 For DWI PCR on prior uncounseled DWI proceeding, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented

State v. Patel

     To secure relief from an enhanced custodial sentence for a subsequent DWI conviction, a non-indigent defendant must establish that in the earlier uncounseled DWI proceeding, (1) he was not advised or did not know of his right to counsel and (2) had he known of his right to counsel, he would have retained a lawyer. A defendant contending he was indigent must establish that in the earlier uncounseled DWI proceeding (1) he was not advised and did not know of his right to appointed counsel, (2) he was entitled to the appointment of counsel under the applicable financial means test, R. 7:3-2(b), and (3) had he been properly informed of his rights, he would have accepted appointed counsel. 

      Because denial of counsel is a structural defect in the proceeding, to secure relief from an enhanced custodial sentence, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented. The Court removes the five-year limitation in Laurick petitions and amends Rule 7:10-2(g)(2), effective immediately, to provide the following: “(2) Time Limitations. A petition seeking relief under this Rule may be filed at any time.” Here, Patel’s unrebutted certifications established that his 1994 plea was uncounseled, and he had no obligation to establish that he would not have pled guilty or been convicted at trial had he been represented by counsel. The Court therefore reverses the judgment of the Appellate Division and remands the matter for proceedings consistent with this opinion. (A-13-18)

5. When a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrantMitchell v. Wisconsin 139 S. Ct. 2525 (2019)

  (a) BAC tests are Fourth Amendment searches. See Birchfield v. North Dakota,579 U.S. ___, ___, 136 S.Ct. 2160, 195 L.Ed.2d 560. A warrant is normally required for a lawful search, but there are well-defined exceptions to this rule, including the "exigent circumstances" exception, which allows warrantless searches "to prevent the imminent destruction of evidence."  In McNeely, this Court held that the fleeting nature of blood-alcohol evidence alone was not enough to bring BAC testing within the exigency exception. Missouri v. McNeely133 S.Ct. 1552 But in Schmerber v. California 86 S.Ct. 1826the dissipation of BAC did justify a blood test of a drunk driver whose accident gave police other pressing duties, for then the further delay caused by a warrant application would indeed have threatened the destruction of evidence. Like Schmerber, unconscious-driver cases will involve a heightened degree of urgency for several reasons. And when the driver's stupor or unconsciousness deprives officials of a reasonable opportunity to administer a breath test using evidence-grade equipment, a blood test will be essential for achieving the goals of BAC testing.  

 (b) Under the exigent circumstances exception, a warrantless search is allowed when "`there is compelling need for official action and no time to secure a warrant.'" McNeely133 S.Ct. 1552. P. 2534.

(1) There is clearly a "compelling need" for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test. First, highway safety is a vital public interest—a "compelling" and "paramount" interest, Mackey v. Montrym  99 S.Ct. 2612  Second, when it comes to promoting that interest, federal and state lawmakers have long been convinced that legal limits on a driver's BAC make a big difference. And there is good reason to think that such laws have worked. Birchfield  136 S.Ct., at ___. Third, enforcing BAC limits obviously requires a test that is accurate enough to stand up in court. Id., at ___, 136 S.Ct., at ___. And such testing must be prompt because it is "a biological certainty" that "[alcohol dissipates from the bloodstream," "literally disappearing by the minute." McNeely 133 S.Ct. 1552 (ROBERTS, 2530*2530 C.J., concurring).  Finally, when a breath test is unavailable to promote the interests served by legal BAC limits, "a blood draw becomes necessary." Id., at 133 S.Ct. 1552.  

 (2) Schmerber demonstrates that an exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Because both conditions are met when a drunk-driving suspect is unconscious, Schmerber controls. A driver's unconsciousness does not just create pressing needs; it is itselfa medical emergency. In such a case, as in Schmerber, an officer could "reasonably have believed that he was confronted with an emergency."   86 S.Ct. 1826. And in many unconscious-driver cases, the exigency will be especially acute. A driver so drunk as to lose consciousness is quite likely to crash, giving officers a slew of urgent tasks beyond that of securing medical care for the suspect— tasks that would require them to put off applying for a warrant. The time needed to secure a warrant may have shrunk over the years, but it has not disappeared; and forcing police to put off other urgent tasks for even a relatively short period of time may have terrible collateral costs.  

 (c) On remand, Mitchell may attempt to show that his was an unusual case, in which his blood would not have been drawn had police not been seeking BAC information and police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.  

6. Refusal of consent to search is inadmissible at trial State v Tungunpublished

    The court reverses defendant's conviction after trial for murder of his estranged wife's lover. The court determines that testimony and an unabridged audiotape of defendant's invocation of the right to counsel, his refusal to consent to a search of his computer and car, and the interrogating officer's opinion that defendant was lying cumulatively constitute plain error. The court relies on federal and out-of-state case law to decide that a refusal of consent to search is inadmissible in these circumstances. Given the paucity of direct evidence of defendant's guilt, this improperly admitted evidence undermines the integrity of the verdict. (A-3692-15T1) source https://www.law.com/njlawjournal/almID/1562724879NJA369215T/

8Photo Municipal Court Annual Meeting Seminar Speakers:  Kenneth A. Vercammen, Esq. Orange Prosecutor Gracia Montilus, Esq., Peter H. Lederman, Esq.,     Joshua H. Reinitz, Esq.,  Ronald P. Mondello, Esq.,  Also speaking Hon. Ashlie C. Gibbons J.M.C., Newark Municipal Court  Hon. Harry D. Norton Jr., J.M.C., Pascack Joint Municipal Court    

9 Office for rent Professional Office Space available in Edison Law Office

2053 Woodbridge Ave.

Edison, NJ 08817

 Excellent space for an Attorney, Financial Planners, Accountant, Insurance Agents, and other Business Professionals as a 2nd location or location to meet clients in Edison. 

    The offices are located on the 1st floor of the building.

2 rooms office   

office room # 6 approx 12.4 x 9.4        

and front room approx 8 x 9 -office room # 5

plus use of reception room  16.6 x 7.2

and use of storage area in basement 

   Previously used by Robert Blackman, late former Judge and Prosecutor of Edison

   $500 per month  [was $600]

Call 732-816-4449

    Owner of building is local attorney, Kenneth Vercammen who handles Municipal Court, Estate Planning & Probate, and Criminal Law. 

10 Recent NJ Municipal Court Cases webinar December 11, 2019- the Foundation of the Municipal Court Attorney’s Arsenalan NJICLE webinarNoon-1:40pm

Featuring:

David R. Spevack, Esq.

Municipal Court Prosecutor Edison, Woodbridge, Carteret

Francis M. Womack, III, Esq.

Municipal Court Prosecutor Edison, Piscataway, Sayreville, South Amboy

 John E. Kawczynski, Esq.

Municipal Court Prosecutor Metuchen & Piscataway

Chirag Mehta, Esq. Prosecutor  Irvington and Morris Plains and Municipal Court Alternate Prosecutor Edison, New Brunswick, Rockaway Township, and Perth Amboy.

Kenneth A. Vercammen, Esq.

Past Chair, NJSBA Municipal Court Practice Section   

   Join the bar for a convenient luncheon webinar and become familiar with the newest key municipal court law cases that should be part of your legal arsenal. Seminar WMCP064819

NJCIEL Phone: (732) 214-8500 · CustomerService@njsba.com

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.

       Please must send a $20.00 check payable to Vercammen & Assoc PC. 

If the law firm or municipality no longer wishes to subscribe, please fax or mail us. 

Name:      ______________________________________

(or staple business card here)

Address:   ______________________________________

              

We also need your email address ________________________ 

Return to:   

Kenneth A. Vercammen, Esq.,    

                    Editor- NJ Municipal Court Law Review    

                    2053 Woodbridge Ave.

                    Edison, NJ 08817

                    732-572-0500

                   Tax ID # available

   Free Office Space for Transitional or New Attorney and work with Metuchen Public Defender and go to Court & Mentor program- Edison, NJ 

              The Metuchen Public Defender Kenneth Vercammen 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 and handle some Municipal court cases. This is a mentoring experience where you can learn NJ Law Office Procedure. Must be licensed in NJ.

        Help handle Wednesday night 5:15 -7:55pm Metuchen Municipal Court matters and two Friday mornings per month.

              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 & call Police Departments to follow up on discovery

- Prepare timesheets on Fatal Accident cases

-Call clients and remind them of hearing dates and what to do

- Update Criminal and Civil blogs with recent cases

-Assist at Senior citizen Will Seminars and Municipal Court programs

               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.

https://www.njlaws.com/office_space.html

               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 and public defender 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.comto learn about our office. More details at www.njlaws.com/lease.htm

    If interested, fax, mail , fax or email a resume and cover letter.

KENNETH VERCAMMEN, Esq. Metuchen Public Defender

2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 

(Fax) 732-572-0030   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 

Ability to use a file cabinet in basement to store your old files 

Lighting/ Utilities

Bathroom Supplies

Landscaping / Snow Removal

Valuable advice

Hot water, municipal water/sewer charge paid

     Other Duties/ Services to Clients

-      Help add our 900+ criminal articles and statutes to our new criminal articles blog [We will teach you how to add articles to Blogs]

-Prepare Police Chief letters

- Whatever else needed to assist clients [ex Motions, ]

About Mentor Program Director: Kenneth Vercammenis an Edison, Middlesex County, NJ trial attorney.    Mr. Vercammen has published 125 articles in national and New Jersey publications on criminal, traffic, DWI, probate, estate planning, and litigation topics. He has been selected to write the book on Criminal Law for the American Bar Association. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.  

  Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association. He is the past chair of the NJ State Bar Association Municipal Court Section and is the Co-Chair of the ABA Criminal Law committee, GP Division. 

       He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. As the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is also a recipient of the NJSBA- YLD Service to the Bar Award.

In his private practice, he has devoted a substantial portion of his professional time to the preparation for trial of litigated matters.  He has appeared in Courts throughout New Jersey several times each week on Criminal personal injury matters, Municipal Court trials, and contested Probate hearings. He serves as the Editor of the popular legal websites www.njlaws.com 

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. He is admitted to the Supreme Court of the United States.

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  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. 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. 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