Winter 2021 Municipal Court Law Review
1. The failure of police to advise the defendant of the charges against him will result in a suppression of his statement despite State v Sims
2. Mere report of black males robbing 7-11 not sufficient to stop car State v Nyema
3. Court here rejects protective sweep where defendant handcuffed State v Radel
4. PTI can’t be conditioned on jail time State v Chen
5. No more license suspensions for FTA
6. Even if the second DWI test was administered within two minutes of the first test, court finds this test reliable State v. Meyer
7. Possession of small amount of weed still not de minimis
State v. Giancarli
8. Threat to release nude photos can be harassment C.M.M. v. V.E.O.
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1. The failure of police to advise the defendant of the charges against him will result in a suppression of his statement despite State v Sims
In this appeal, the court determined as a matter of first impression that the Supreme Court's holdings in State v. A.G.D., 178 N.J. 56 (2003), and in State v. Vincenty 237 N.J. 122 (2019), requiring that police inform a defendant subject to custodial interrogation of specific charges filed against him before he can waive his in Miranda rights, also applies to an interrogee who was arrested and questioned prior to any charges being filed, where the arrest was based upon information developed through an earlier police investigation.
The court also concluded that the trial court erred by admitting the victim's statement to police through a police officer's hearsay testimony at trial because defendant was deprived of a meaningful opportunity to challenge the victim's statement through cross examination at a pretrial hearing or before the jury, where at the pretrial hearing the victim could not recall ever giving the statement to police and he later refused to appear at trial to testify before the jury.
In a separate opinion concurring with the result but dissenting from the majority's extension of A.G.D. to custodial interrogations where neither a complaint warrant nor arrest warrant have been issued, a member of the panel expressed concern that the new rule announced in the majority opinion has the potential to introduce subjectivity, ambiguity, and uncertainty to the administration of Miranda warnings. A-2641-17T2
2. Mere report of black males robbing 7-11 not sufficient to stop car State v Nyema
The police received a dispatch transmission that a 7-Eleven store had been robbed by two black males, one of whom had a gun. A subsequent dispatch indicated the two men fled on foot. The police officer was familiar with the 7-Eleven store and responded.
Police officers seized the evidence following an investigatory stop of an automobile in which defendant was a passenger. The arresting officer testified he stopped the car because he was advised two black men had robbed a store. The officer used a spotlight mounted to his car to illuminate the interiors of passing vehicles as he traveled to the store. In one car, he observed three black men who did not react to the light. The officer stopped the car based on those observations.
Following the denial of his motion to suppress physical evidence, defendant pled guilty to first-degree robbery, N.J.S.A. 2C:15-1
The court held that knowledge of the race and gender of criminal suspects, without more, does not establish a reasonable articulable suspicion that the men in the car had robbed the store. Accordingly, the court reverses defendant's conviction, vacates his sentence, and remands for further proceedings. A-0891-18T4
3. Court here rejects protective sweep where defendant handcuffed State v Radel
Police did not have proof they had a reasonable and articulable suspicion that there were other persons inside the home or that they posed a risk to the police or others State v Radel
Defendant moved in the trial court for the suppression of evidence – guns, ammunition, drugs, and drug paraphernalia – seized pursuant to a search warrant based on information police obtained during a warrantless entry into defendant's home. The trial judge denied the suppression motion, finding the police conducted a permissible protective sweep of the home.
The court concluded that the police lacked both a reasonable and articulable suspicion of danger and a legitimate purpose for remaining on the premises, since defendant was arrested outside the home and handcuffed before police conducted the sweep. A-2503-18T3
4. PTI can’t be conditioned on jail time State v Chen
The appeal asked the court to determine whether the Middlesex County Prosecutor's Office (Prosecutor's Office) can condition defendants' admissions into the pretrial intervention program (PTI) applications, N.J.S.A. 2C:43-12, on service of jail time after they were released on their own recognizance.
In accordance with plea agreements, defendants pled guilty to amended charges of third-degree criminal mischief, N.J.S.A. 2C:17-3, and they were each sentenced to a four-year term of noncustodial probation. Pursuing rights preserved in their plea agreements, defendants sought to overturn the denials of their PTI applications with appeals to the trial judge, claiming the Prosecutor's Office abused its discretion by proposing that they serve jail time to gain admission. The trial judge rejected defendants' requests without addressing the impact of the jail time proposals.
The court reversed. The Prosecutor's Office abused its discretion by tainting the PTI application process through unsuccessfully seeking to have defendants agree to serve jail time to gain admission. Although imposing the condition of jail time for PTI admission was not expressly permitted or prohibited by the governing statute, court rule, or guidelines in effect at the time, the court conclude it was illegal to do so because vesting such authority to the Prosecutor's Office would afford it powers contrary to the Legislature's intent in creating PTI. The trial court shall therefore enter orders vacating defendants' guilty pleas and admit them into PTI. A-1121-18T4
5. No more license suspensions for FTA
The Supreme Court has relaxed and supplemented Rule 7:8-9(b) (“Driving Privileges; Report to Motor Vehicle Commission”) so as to conform to L. 2019, c. 276, §20, which repealed N.J.S.A. 2B:12-31 and thereby eliminated the authority for municipal courts to issue driver’s license suspensions for failures to appear for non-parking violations.
SUPREME COURT - IT IS ORDERED, the provisions of Rule 7:8-9(b) ("Driving Privileges; Report to Motor Vehicle Commission") of the Rules Governing the Courts of the State of New Jersey are supplemented and relaxed as follows:
Consistent with L. 2019, c. 276, §20, which repealed N.J.S.A. 2B:12-31 effective January 1, 2021, municipal courts shall not issue a driver's license suspension or a prohibition against obtaining driving privileges based on a person's failure to appear for any non-parking violation, specifically (a) a disorderly persons offense; (b) a petty disorderly person offense; (c) a violation of a municipal ordinance; or (d) any other law of this State for which a penalty may be imposed.
https://www.njcourts.gov/notices/2020/n201214a.pdf
6. Even if the second DWI test was administered within two minutes of the first test, court finds this test reliable State v. Meyer Appellate Division, unpublished.
Defendant appealed from the March 11, 2019 order of the Law Division convicting him after a trial de novo of driving while intoxicated, per N.J.S.A. 39:4-50. On June 13, 2016, defendant was involved in a three-car accident that resulted in personal injuries. An officer took two breath samples, two minutes apart, from defendant with an Alcotest machine at the station. The tests reported blood alcohol content readings above the legal limit, so defendant was charged with DWI. On June 20, 2017, defendant entered a conditional plea of guilty in the municipal court to the DWI charge.
Defendant appealed to the Law Division where the judge affirmed the conviction based upon State v. Mukherjee, an unpublished appellate decision. On appeal, the court affirmed the lower court's decision. The lower court erred in basing its decision on an unpublished appellate decision, per Rule 1:36-3. But the court affirmed the decision because the Alcotest evidence was admissible under State v. Chun, 194 N.J. 54 (2008). The record showed the machine's lockout feature was functioning properly, so even if the second test was administered within two minutes of the first test, the test results were reliable pursuant to Chun.
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7. Possession of small amount of weed still not de minimis
State v. Giancarli Appellate Division, unreported
State appealed the de minimis dismissal of summonses charging defendants with possession of fewer than 50 grams of marijuana and use or possession of drug paraphernalia. Defendants were arrested after officer noticed them on a beach at midnight with a lighter. Smoking was prohibited on the beach, officer approached defendants who attempted to conceal something but then voluntarily relinquished marijuana, lighters, and a glass-smoking device. Defendants moved to dismiss the summons pursuant to N.J.S.A. 2C:2-11 based on the insubstantial amount of marijuana seized.
Both defendants were college students with high GPAs. State urged a conditional discharge as defendants were perfect candidates for the diversionary program. The assignment judge rejected the conditional discharge alternative because it could have consequences more punitive than intended by the law. Court found assignment judge mistakenly exercised discretion in dismissing the offenses.
The penal code violations were not "trivial" and prosecution of the charges would not be "absurd." The amount of marijuana possessed was more than sufficient to prosecute under N.J.S.A. 2C:35-10(a)(4) and defendants also possessed drug related paraphernalia. Record did not support conclusion that a conviction or conditional discharge would have deleterious effects on defendants' future employment opportunities. Assignment judge also erred in relying on the alleged "evolving notion of the use of marijuana" and purported "changing societal attitudes."
8. Threat to release nude photos can be harassment C.M.M. v. V.E.O.
Defendant appealed from the entry of a FRO, after the trial court found defendant had committed the predicate offense of harassment and that a FRO was necessary to protect plaintiff from future domestic violence. The parties dated for several months and only engaged in limited intimacy. Plaintiff refused defendant's request for nude photographs; however, after spending the night at defendant's place, plaintiff discovered nude photos of herself on defendant's phone.
Plaintiff requested defendant delete the photos and told him she did not want any further contact with him. The parties exchanged a few more text messages, after which defendant left a gift card in plaintiff's mailbox to compensate her for items she had left at defendant's home. Plaintiff testified that defendant had not physically threatened her but that she no longer had peace of mind after defendant visited her at her house. Plaintiff further testified that the photos defendant had taken of her caused her to feel "fearful, afraid, apprehensive…unsafe."
Defendant testified that there were fewer than 12 photos of plaintiff on his phone and that they had been taken with plaintiff's permission; defendant denied that plaintiff had told him to leave her alone and that she had in fact invited him to her home "on many occasions." The trial court found plaintiff credible and defendant not credible and ruled that defendant had a "purpose to harass" by going to plaintiff's home to leave the gift card while the continued texts and voicemails were intended to annoy plaintiff.
On appeal, the court held that there was substantial record evidence to support the trial court's finding that defendant committed the predicate act of harassment. The court noted that plaintiff had made it clear to defendant that she no longer wanted any contact with him, while defendant's own continued communications to plaintiff also demonstrated that he knew plaintiff did not want contact with him. However, the court reversed entry of the FRO, ruling that the trial court had failed to make a sufficient finding that the order was necessary for plaintiff's protection. Source Daily Briefing 12/18/20
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CRIMINAL LAW State v. Alamilla, Appellate Division
Defendant appealed his conviction for possession of marijuana with intent to distribute. Officer was noting license plate numbers of tractor-trailers in a parking lot known as a drug-trafficking area when he observed a car pull into the lot, driver make a phone call and the interior of a nearby tractor-trailer cab light up. Officer suspected a drug transaction, alerted other officers and followed car and tractor-trailer when they left the lot.
They eventually parked, a van arrived and then all three vehicles drove into adjacent parking spots behind a warehouse. Officer approached and asked what was in the trailer and defendant said "[you know it's weed" and signed a consent to search form. Officers found nineteen bags of marijuana and additional bags of marijuana in the van. Defendant argued trial judge erred in denying his motion to suppress the marijuana. Trial court found officers were credible, they initiated a valid investigative stop based on reasonable suspicion and search of the tractor-trailer and van were justified under the automobile exception to the warrant requirement. Court found trial court's decision was supported by substantial evidence in the record. Officers' investigative stop did not amount to a custodial interrogation, the search was justified under the automobile exception and defendant consented to the search. Daily Briefing - 09/24/2020
C.A.K. v. B.K. Defendant appealed the FRO entered against him. | December 18, 2020 at 12:00 AM 1. Case Digest Summary
Defendant appealed the FRO entered against him. Plaintiff alleged defendant committed acts of domestic violence by calling her names, berating her and threatening to "ruin" her life in an argument at son's baseball practice and sending text message to six of her family members. Parties married in 2010, separated in 2018 and were in the process of divorcing. Plaintiff had obtained prior TROs against defendant. Defendant denied the allegations except for the text messages to her family.
Family Part judge found plaintiff more credible, found defendant's actions were in violation of civil restraints in a prior order and issued the FRO. Defendant argued Family Part judge erred in finding him guilty of harassment based on text messages to third parties. Court found sufficient credible evidence in the record to support the finding that defendant engaged in harassment in violation of N.J.S.A. 2C:33-4(a) and that the communications were intended to annoy plaintiff.
Additionally, Family Part judge applied the statute in accord with State v. Burkert, 231 N.J. 257. Defendant's argument that his communications were an expression of frustration and not intended to harass lacked sufficient merit to warrant discussion.
https://www.law.com/njlawjournal/almID/1608321864NJA135819T/
