August 20, 2007

State v. Jay C. Fisher

08-14-07 A-3026-05T3

Pursuant to N.J.S.A. 2C:11-5.1, a driver involved in a
motor vehicle accident that results in the death of another
person is guilty of a crime if the driver fails to comply with
the requirements of N.J.S.A. 39:4-129. The driver must either
remain at the scene to provide his or her driving credentials to
designated persons or report the accident and his or her
identity to the nearest officer of the local police department,
county police or the State Police. Compliance with those
requirements would preclude prosecution under N.J.S.A. 2C:11-
5.1.

Moreover, compliance with those requirements would not
violate the driver's privilege against self-incrimination. As
the United States Supreme Court recognized in California v.
Byers, disclosure of name and address is essentially a neutral
act and most accidents occur without creating criminal
liability. Under the facts of this case, there was no
reasonable basis for the driver to apprehend prosecution,
inasmuch as the decedent had been crouching or lying near the
middle of the road. If, under different facts, compliance with
the statutory requirements did pose a legitimate risk of selfincrimination,
it might be necessary to accord compliant drivers
use or derivative-use immunity as outlined in State v. Patton.

August 6, 2007

State v. Ernest Spell

07-31-07 A-4186-05T5

While the record supports the conviction for refusal to
take a breathalyzer test, N.J.S.A. 39:4-50.2, and the conviction
is affirmed, effective October 1, 2007 officers must read the
additional paragraph of the statutorily promulgated statement of
the Motor Vehicle Commission before any refusal conviction can
be sustained.

Jeanne Klawitter and Dennis J. DeBonis v. City of Trenton

07-31-07 A-0208-05T5

This appeal by the City of Trenton presents two distinct
issues regarding employment-related claims by two members of the
Trenton Police Department.

Klawitter's claim of reverse discrimination based on race
in the denial of a promotion resulted in a jury verdict in her
favor. We affirmed. We rejected the City's argument that it
was permissible to use race as a "plus" factor. The City
maintained at trial that race was not a factor in any respect.
It did not present evidence or argue that race was considered as
a plus factor. Further, race can be used as a plus factor only
pursuant to an established affirmative action plan. The City
did not establish the existence of such a plan.

DeBonis, a sergeant, filed for retirement but, within
thirty days of the effective date, sought to cancel his
retirement as authorized by a pension regulation, N.J.A.C. 17:4-
6.3, and requested to be rehired to a vacant sergeant position.
The City refused, informing DeBonis that, pursuant to civil
service regulations, his name could be placed on a reemployment
list. The trial court granted partial summary judgment on
liability in favor of DeBonis and a jury awarded him damages.
We reversed, holding that DeBonis' right to cancel his
retirement under pension regulations did not entitle him to
immediate reemployment, which, instead, was controlled by
priorities promulgated by civil service laws and regulations.