ALJ can suspended for death with accident EW JERSEY MOTOR VEHICLE COMMISSION, Petitioner-Respondent, v. GERARD J. REDMOND,

ALJ can suspended for death with accident EW JERSEY MOTOR 

VEHICLE COMMISSION,

Petitioner-Respondent,

v.

GERARD J. REDMOND,

Respondent-Appellant.

____________________________

October 16, 2017

Argued September 18, 2017 – Decided 

Before Judges Sabatino and Whipple.

On appeal from New Jersey Motor Vehicle Commission.

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-0 

PER CURIAM

Respondent, Gerard J. Redmond, appeals from a final decision of the Commissioner of Motor Vehicle (Commissioner) suspending his driver's license after a motor vehicle accident involving a fatality. We remand for the following reasons.

On May 8, 2011, respondent was stopped at a traffic light at an intersection in Jackson Township when a large insect entered his passenger side window and startled him. When he tried to swat the insect, his foot slipped off the brake, and respondent's vehicle entered the intersection, where it collided with a vehicle operated by the decedent. The decedent had the green light as he was travelling through the intersection.

A Jackson police officer arrived at the scene and interviewed both drivers. The officer described both individuals as alert, calm, and able to answer questions. Respondent reported no injury to the officer, described the accident, and was issued a summons for failure to observe a traffic control device.  N.J.S.A. 39:4-81. The officer testified the decedent, an elderly man, complained of lower back pain. The decedent was taken to the hospital, where he died six weeks later. 

The death certificate issued contemporaneously with the decedent's death listed respiratory failure caused by bi-lateral pneumonia as the cause of death. However, in 2014, the decedent's estate obtained opinions from three medical experts and secured an amendment to the certificate, listing the cause of death as a motor vehicle accident. Decedent's estate has since filed suit against respondent.

After the Jackson police learned of decedent's death, they referred the case to the fatal accident unit of the State Police. On February 24, 2015, the State of New Jersey Motor Vehicle Commission (the Commission) suspended respondent's license, pursuant to N.J.S.A. 39:5-30, for sixteen months because his actions in failing to observe a traffic control device contributed to a fatality. Respondent appealed the suspension, and the matter was heard in the Office of Administrative Law.

At the outset of the hearing, the Administrative Law Judge (ALJ) granted the decedent's daughter leave to participate, limited to reading an impact statement. At the close of the hearing, she read the impact statement into the record and disclosed that the decedent had contracted MRSA during the hospital stay. 

After considering the testimony of the officer and respondent, and reviewing the medical reports, the ALJ determined respondent caused the motor vehicle accident with the decedent. The discussion then turned to the cause of the decedent's death. 

The ALJ found no reason to reject the amended death certificate and accepted the motor vehicle accident as the cause of death. The ALJ concluded respondent contributed to the fatality and affirmed the suspension, while modifying it to six months because of respondent's good driving record.

Respondent appealed the decision to the Commission. The Commission issued a Final Decision on May 27, 2016, upholding the ALJ's determination and suspension. Respondent was granted a stay of the suspension pending this appeal, which followed.

On appeal, respondent argues the ALJ committed reversible error in determining the decedent's death was a result of the accident and abused her discretion by imposing a suspension.¹

We have a limited role in reviewing administrative agency decisions. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not overturn such decisions unless they are "arbitrary, capricious or unreasonable" or "not supported by substantial credible evidence in the record as a whole."  N.J. Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); In re Tukes, 449 N.J. Super 143, 156 (App. Div. 2017). 

N.J.S.A. 39:5-30(a) empowers the Commission to suspend a motorist's driving privileges for violation of any of the provisions of the motor vehicle statutes and imposes no limitation on the length of the suspension. The Commission may rest his or her decision upon a mere preponderance of the evidence.  Cresse v. Parsekian, 81 N.J. Super. 536, 548-49 (App. Div. 1963), aff'd, 43 N.J. 326 (1964). "In proceedings before an administrative agency . . . it is only necessary to establish the truth of the charges by a preponderance of the believable evidence and not to prove guilt beyond a reasonable doubt."  Atkinson v. Parsekian, 37 N.J. 143, 149 (1962) (citations omitted).

Here, the ALJ's findings and conclusions with respect to respondent's violation are supported by witness testimony and other evidence presented at the hearing. In its final decision, the Commission adopted the ALJ's findings and conclusions in whole, including the reduction of respondent's license suspension. We need not discuss whether respondent violated N.J.S.A. 39:4-81, failure to observe a traffic control, because he pled guilty to that violation in municipal court. The focus of our discussion is limited to whether the resulting accident caused the decedent's death. 

Among other things, the ALJ determined (1) respondent acknowledged failure to observe the traffic light caused the accident, (2) the decedent passed away because of the accident, and (3) the unrebutted death certificate indicated the accident was the cause of death. The ALJ then rejected respondent's unsupported suggestions that decedent's estate amended the death certificate to gain advantage in a related civil lawsuit or that the decedent died because of other conditions contracted in the hospital.

Based upon our review of the record, we take no issue with these determinations by the ALJ.

We next consider respondent's argument that the imposition of a six-month suspension was arbitrary and unreasonable. Generally, "in reviewing administrative agency decisions, we accord substantial deference to an agency head's choice of remedy or sanction, seeing it as a matter of broad discretion, especially where considerations of public policy are implicated."  In re Herrmann, 192 N.J. 19, 34-35 (2007) (quoting Div. of State Police v. Jiras, 305 N.J. Super. 476, 482 (App. Div. 1997), certif. denied, 153 N.J. 52(1998)). Here, the penalty was within the numerical parameters of the Commissioner's delegated authority under N.J.S.A. 39:5-30(a). However, in Cresse, we said 

The Director must weigh each case individually, to determine whether a suspension is required at all for the purposes above mentioned, and, if so, for how long. Among other things, he should consider the facts which constitute the particular violation; whether the motorist was willful or reckless, or merely negligent, and, if merely negligent, how negligent; how long the motorist has been driving; whether this is his first offense; whether he has been involved in any accidents; his age and physical condition; whether there were any aggravating circumstances, such as drinking, or, on the other hand, whether there were extenuating circumstances. Upon these and all the other facts and circumstances, he should determine whether it reasonably appears, as a matter of prophylaxis and not of punishment, that the motorist should be kept off the highway, and, if so, for how long. 

[Cresse, supra, 81 N.J. Super. at 549.]

Here the ALJ considered respondent's minimal driving record and gainful employment, and determined respondent's actions were not willful or reckless but merely negligent. The decision to suspend respondent's driving privileges for six months, as a means of "prophylaxis and not of punishment," was based on respondent's "refus[al] to accept that the accident he caused had effects subsequent to the incident itself." This finding stemmed from respondent's legal argument he should not be subject to suspension based upon a death certificate amended three and one half years after decedent's death. Based on our review of the record, we do not consider this an appropriate aggravating factor, and consider the imposition of a term of suspension for six months on that basis an abuse of discretion. We thus remand the matter to the Commission to determine anew on proper factors whether a suspension is required, and if so, for how long. 

Remanded for reconsideration of the term of suspension, consistent with this opinion. We do not retain jurisdiction.

1  We note respondent's amended notice of appeal (NOA) only lists the April 14, 2016 order of the ALJ and not the final decision of the Commission, however, respondent does discuss the final decision in his case information statement.  Rule 2:5-1(f)(3)(A) provides, "it is only the judgments or orders or parts thereof designated in the [NOA] which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1 on R. 2:5-1 (2011). Nonetheless, we may consider orders not referenced in the NOA if the civil case information statement (CIS) places the adversary on notice of the intended scope of appeal. See Ahammed v. Logandro, 394 N.J. Super. 179, 187-88 (App. Div. 2007). We may also consider an order not identified in the NOA where "the basis for the motion judge's ruling on [an order and subsequent order] may be the same. In such cases, an appeal [from the subsequent order] may be sufficient for an appellate review of the [earlier order], particularly where those issues are raised in the CIS," Fusco v. Board of Education of Newark, 349 N.J. Super. 455, 461 (App. Div.), certif. denied, 174 N.J. 544 (2002), by "clearly indicat[ing]" the earlier order is "one of the primary issues presented by the appeal."  Synnex Corp. v. ADT Sec. Servs., Inc., 394 N.J. Super. 577, 588 (App. Div. 2007).

STATE OF NEW JERSEY VS. CARLOS B. GREEN A-1809-16T1

 STATE OF NEW JERSEY VS. CARLOS B. GREEN 

A-1809-16T1 

The trial court prohibited the admission of defendant's two prior drunk driving convictions, which the State sought to admit to prove defendant acted recklessly in his pending trial on the charge of first-degree vehicular homicide while intoxicated within 1000 feet of a school. On interlocutory appeal, the Appellate Division affirms due to the statutory inference of recklessness that arises when driving drunk, N.J.S.A. 2C:11-5(a), as well as the deferential review standard applied to a N.J.R.E. 404(b) decision. 

Criminal mischief

Burglary of building, house, or car

STATE OF NEW JERSEY VS. EUGENE RICHARDSON A-2023-15T2

 STATE OF NEW JERSEY VS. EUGENE RICHARDSON 

A-2023-15T2 

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. 

39:4-67 Obstructing passage of vehicles

39:4-67 Obstructing passage of vehicles

no points

39:4-67.  Obstructing passage of other vehicles or street cars prohibited; clearance of intersections
    No vehicle or street car shall be permitted by the owner or driver thereof to so occupy a street as to interfere with or interrupt the passage of other street cars or vehicles, nor shall the driver of a vehicle or street car drive such vehicle or street car into an intersection if preceding traffic prevents immediate clearance of the intersection.

39:4-203 Fine and imprisonment for a term

not exceeding 15 days, or both

       Penalties set forth at 39:4-203 Fine or imprisonment not

exceeding 15 days, or both

fines $50 $200 plus court costs and possible non renewal by insurance company if too many moving violations

39:4-67 Obstructing passage of vehicles

39:4-67 Obstructing passage of vehicles

no points

39:4-67.  Obstructing passage of other vehicles or street cars prohibited; clearance of intersections
    No vehicle or street car shall be permitted by the owner or driver thereof to so occupy a street as to interfere with or interrupt the passage of other street cars or vehicles, nor shall the driver of a vehicle or street car drive such vehicle or street car into an intersection if preceding traffic prevents immediate clearance of the intersection.

39:4-203 Fine and imprisonment for a term

not exceeding 15 days, or both

       Penalties set forth at 39:4-203 Fine or imprisonment not

exceeding 15 days, or both

fines $50 $200 plus court costs and possible non renewal by insurance company if too many moving violations

Fall Municipal Court Law Review 2017

     Fall Municipal Court Law Review 2017

1. Dash cam video in fatal shooting public record

North Jersey Media Group, Inc. v. Township of Lyndhurst

   NJMG was entitled to disclosure of unredacted Use of Force Reports, under OPRA, and dash-cam recordings of the incident, under the common law.  Investigative reports, witness statements, and similarly detailed records were not subject to disclosure at the outset of the investigation, when they were requested.

2. Canine dog sniff cannot be long delay

State v. Dunbar

The Court adopts the federal standard barring unnecessary delays for the purpose of canine sniffs. Officers do not need reasonable suspicion of a drug offense provided that the canine sniff does not prolong the stop beyond the time required to complete the stop’s mission. (A-94-15; 077839)

3. Defendant had a constitutional right to possess the machete in his home State v. Montalvo 226 N.J. 212 (2017)

The right to possess a weapon in one’s own home for self-defense would be of little effect if one were required to keep the weapon out-of-hand, picking it up only “spontaneously.” Defendant had a constitutional right to possess the machete in his home for his own defense and that of his pregnant wife. Because the trial court’s instructions did not convey this principle, the instructions were erroneous. Further, because the erroneous instructions were capable of producing an unjust result in this matter, they constitute plain error.

4.  GPS tracking device by police not barred

State v McDuffie

The court examined defendants' attack on the State's exercised privilege, refraining from disclosing information regarding details related to a global positioning system (GPS) tracking device used to prove their involvement in two burglaries. The court rejected defendants' constitutional attacks and upheld the privilege granted by N.J.R.E. 516 and N.J.S.A. 2A:84A-28, defining the guidelines reviewed when weighing disclosure in light of the asserted privilege. These include: (1) whether defendant demonstrates a particularized need for disclosure related to advance a stated defense; (2) whether the opportunity to cross-examine the officer, asserting non-disclosure based on privilege, satisfies a defendant's need to challenge the credibility of the testifying witness; (3) whether law enforcement provided required corroborating evidence extrinsic to the GPS, to protect a defendant's rights of confrontation and fair trial; and (4) whether a defendant has the opportunity to provide expert testimony to attack the evidence without disclosure of the requested information. 

5. NJ had jurisdiction for criminal spam attach on NJ business

State v Tringali

The State alleged that, acting in Florida, defendant paid an accomplice to launch spam attacks on a website that was integral to a New Jersey internet-based business, for the purpose of harming the business owner. The Appellate Division reversed an order dismissing the indictment charging defendant with the offenses of disrupting or impairing computer services, N.J.S.A. 2C:20-25(b), and impersonating another for the purpose of obtaining a benefit or depriving another of a benefit, N.J.S.A. 2C:21-17(a)(1). As to both offenses, the harmful result to the victim is an "element" of the offense, within the meaning of the territorial jurisdiction statute, N.J.S.A. 2C:1-3(a)(1) and -3(g). Because the prosecutor produced some evidence that the New Jersey victims suffered harm in this State, which was an element of each computer crime statute, New Jersey has territorial jurisdiction to prosecute defendant for those offenses. Therefore, the trial court erred in dismissing those counts of the indictment for lack of territorial jurisdiction. A-1262-15T1

 6. OPRA can also require electronically stored data.

John Paff v. Galloway Township  

The Appellate Division’s overly constrictive reading of OPRA cannot be squared with the OPRA’s objectives or statutory language. OPRA recognizes that government records will constitute not only paper documents, but also information electronically stored. The fields of information covering “sender,” “recipient,” “date,” and “subject” in the emails sent by the Galloway Township Chief of Police and Clerk over a two-week period are government records under OPRA.

7. Mandatory DNA samples in serious Municipal court criminal

 Anyone who pleads guilty to most criminal disorderly criminal offenses must provide a DNA sample upon a guilty plea.

Effective July 1, 2017, the New Jersey Department of Law and Public Safety will require DNA collection for 19 disorderly persons offenses at the time of conviction. The State Police memo dated May 12, 2017 can be viewed

http://www.njsmpa.org/pdfs/codis_dna_collection.pdf

    At the time of collection, the offender’s identity must be electronically verified via the LiveScan machine using the Criminal Inquiry option, not Criminal Arrest as Criminal Arrest prints were already taken at the time of arrest. Care must be taken to avoid taking Criminal Arrest prints from a subject for the same offense twice.

2C:12-1 Assaults

2C:35-10 All drug charges and Paraphernalia

2C:34-1  Prostitution

8 Operation in DWI requires proof

 State v. Decicco  App. Div. unreported

A trooper, responding to a report about an "erratic driver," found a car parked in a field at a campground. Defendant was in the driver's seat holding a can of beer in his hand. The keys were in the ignition, but the engine was not running. Trooper testified that he could feel heat coming from the front of the car and heard crackling sounds from the engine. Defendant admitted drinking beer, said he was at the campground to pick up his mail and was staying to "sleep[] it off." Defendant failed field sobriety tests and his BAC measured 0.09. On appeal, defendant contended that the state failed to show that he "operated" a vehicle. The court found that the state failed to meet its burden of proof because defendant's admission that he had driven to the campground did not establish a timeline to show that he was intoxicated when he did so and the state produced no eyewitnesses to defendant's alleged erratic driving. Additionally, the trooper admitted that the warmth from the car engine might have been from defendant running the air conditioner while parked.

Unreported source New Jersey Law Journal April 6, 2017

9. No blood draw without warrant unless exigency

State of New Jersey v. Smiejan, N.J. Super. App. Div. Unreported

Appellant was involved in an accident in which he struck two parked cars. While at the hospital for his injuries, a sample of his blood was taken without his consent or a search warrant; subsequent testing established his blood alcohol content was above the legal limit. Appellant moved for, and was denied suppression of the BAC evidence. The court noted there were exigent circumstances, which existed because of the delays inherent in the warrant application process. On appeal, appellant argued that the seizure of his blood violated the Fourth Amendment, the Supreme Court's Missouri v. McNeely ruling applied which held that dissipation did not constitute an exigency, and ineffective assistance of counsel. The court reversed holding the trial court erred in relying upon the municipal judge's past experience as a factual basis to find the existence of an adequate exigency. The court further held there were no meaningful factual findings made by either the municipal court judge or the law division judge. Finally, the court stated that, pursuant to McNeely, the case was to be remanded to determine whether the circumstances warranted the admission of the blood draw as the trial court failed to determine under the totality of the circumstances whether exigency existed thereby negating a need for a warrant. Accordingly, the court reversed and remanded.

Source http://www.njlawjournal.com/id=1202784736777/Unpublished-Opinions-for-the-Week-of-May-1-2017?mcode=0&curindex=0&curpage=3

10. Even if the request to search were not lawful, defendant’s flight attenuated the seizure from the alleged improper police conduct

 State v. Lopez  N.J. Super. App. Div. unreported

   Defendant appealed the denial of his motion to suppress evidence and his sentences. Police made a motor vehicle stop of defendant’s vehicle, observed that defendant was nervous, saw a large amount of cash in the center console, suspected drug activity and requested consent to search the car. Defendant initially agreed, then drove away throwing a black object out of the car. Defendant eventually stopped and was arrested. The police found a plastic bag-containing heroin near where defendant threw the object from the car. At the hearing on the motion to suppress, the trial judge found the stop was lawful because of the inoperable brake light and defendant’s change of lanes without signaling. The court found that sufficient credible evidence supported the stop and the request to search.  

Even if the request to search were not lawful, defendant’s flight attenuated the seizure from the alleged improper police conduct. Source  NJLJ (14-2-3291)  unreported 

11. Strip search after marijuana arrest not permitted

State v. Jules, N.J. Super. App. Div. unreported

 Appellant appealed from his conviction for third-degree possession of alprazolam (Xanax). Appellant’s appeal focused solely on the denial of his motion to suppress evidence obtained from a strip search, which police conducted at their headquarters after his arrest. In denying appellant’s motion, the judge found the officer had reasonable articulable suspicion justifying the initial stop, probable cause for the arrest and that the strip search was lawful under the search incident to arrest exception to the warrant requirement. Appellant did not dispute the initial stop or the arrest; appellant argued that the police acted unlawfully by subjecting him to a strip search without first obtaining a warrant.

On appeal, the court-reversed denial holding the officer’s suspicion that the item in appellant’s groin area was a prescription pill bottle did not establish probable cause that appellant committed the named offense. The court found there was no “objectively reasonable” basis to arrest appellant for possession of prescription pills, only that there was probable cause to arrest him for marijuana possession. Therefore, the police could not use the search incident to arrest exception to circumvent the protections that arose from appellant’s arrest. Furthermore, exigency could not support the search once the police handcuffed and secured appellant. Finally, the court found the “plain feel” exception inapplicable because the object believed to be a prescription pill bottle did not make it “immediately apparent” that the bottle contained contraband. Accordingly, the court reversed denial of suppression and remanded for dismissal of the judgment of conviction. Source NJLJ Daily briefing

Index

1. Dash cam video in fatal shooting public record

North Jersey Media Group, Inc. v. Township of Lyndhurst

2. Canine dog sniff cannot be long delay

State v. Dunbar

3. Defendant had a constitutional right to possess the machete in his home

4.  GPS tracking device by police not barred

State v McDuffie

5. NJ had jurisdiction for criminal spam attach on NJ business

State v Tringali

6. OPRA can also require electronically stored data.

John Paff v. Galloway Township   

7. Operation in DWI requires proof

 State v. Decicco  

8. Even if the request to search were not lawful, defendant’s flight attenuated the seizure from the alleged improper police conduct

 State v. Lopez  

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