Fall NJ Municipal Court Law Review 2016
1. Prosecutor must provide
videotape and audiotape plus names of officers from other towns involved in
stop
State v. Stein 225 NJ 582 (2016)
Under Rule 7:7-7(b), the municipal prosecutor was
required to provide defendant with the names of the police officers from the
adjacent jurisdiction who responded to the accident scene. Because, when the
prosecutor failed to provide the information, defendant did not raise this
issue before the municipal court, or seek relief under the Rule, the issue has
been waived. The prosecutor was also required to provide the videotapes that
defendant requested, if they existed, since such information was clearly
relevant to a DWI defense. Because the Court cannot determine from the record
whether any videotapes exist, the matter is remanded to the Law Division for
further proceedings on this issue.
2. Suppression where stop based only for high beam State v. Scriven 226 NJ 20 (2016)
The trial court and Appellate
Division properly concluded that the motor-vehicle stop violated the Federal
and State Constitutions. The language of the high-beam statute, N.J.S.A.
39:3-60, is unambiguous; drivers are required to dim their high beams only when
approaching an oncoming vehicle. Neither a car parked on a perpendicular street
nor an on-foot police officer count as an oncoming vehicle. The judgment of the
Appellate Division upholding the trial court’s suppression of the evidence is
affirmed.
3. Third Party did
not have authority to consent to search of premises State v. Cushing 226 NJ 187 (2016)
The record contains ample evidence to support the
Appellate Division’s conclusion that Betty Cushing did not have actual
authority to consent to the search of defendant’s room, and Betty could not
have conferred through any power of attorney an authority that she did not
possess herself. In addition, it was not objectively reasonable for Officer
Ziarnowski to rely on an apparent authority by Mylroie as the basis for valid
third-party consent to his initial search of defendant’s bedroom.
4. Search warrant did not permit
search of persons off premises State v. Bivins 226 NJ 1 (2016)
Because the State did not
provide adequate proof that the individuals found in a car had been present at
the targeted residence when the warrant was being executed moments before their
apprehension, the warrant did not provide authority for the search of the two
off-premises individuals.)
5. No search warrant needed for some Cell phone records State v. Lunsford 226 NJ 129 (2016)
As a long-standing feature of
New Jersey law, telephone-billing records are entitled to protection from
government access under the State Constitution.
Because they reveal details of one’s private affairs that are similar to what bank and credit
card records disclose, these areas of information should receive the same level
of constitutional protection and be available based on a showing of
relevance. Direct judicial oversight of
the process is required to guard against the possibility of abuse, and in order
to obtain a court order requiring
production of telephone billing records, the State must present specific
and articulable facts to demonstrate
that the records are relevant and material to an ongoing criminal investigation.
6. Police video is public record
under OPRA Paff v Ocean County
Prosecutors Office 446
NJ Super. 163 (App. Div. 2016)
(MVRs) in police vehicles - which, in accordance with
the police chief’s written policy order,
are generated automatically whenever the
vehicle’s overhead lights are activated - are “government records” subject to disclosure under the Open
Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Appellant Ocean County Prosecutor’s Office failed to carry its
statutory burden to show that the films fall within an exception under OPRA.
Judge Gilson dissents.
7 No automatic right to discovery of other files
State v. Hernandez 225 NJ 451 (2016)
Although the discovery rule generally requires that
the State provide all evidence relevant to the defense of criminal charges, it
does not open the door to foraging through files of other cases in search of
relevant evidence. The discovery ordered by the trial court and Appellate Division exceeds the limits of Rule
3:13-3(b) and is not supported by this Court’s jurisprudence.
8. Prosecutor used improper
arguments of victim’s state of mind
State v Ravi __ NJ Super. __ Defendant was convicted of multiple counts of invasion
of privacy, bias intimidation, hindering prosecution, and tampering with
evidence. The jury found defendant guilty on four counts directly predicated on
N.J.S.A. 2C:16-1(a)(3), a now constitutionally defunct law pursuant to the
Supreme Court’s holding in State v. Pomianek, 221 N.J. 66, 69 (2015). The State
conceded that the convictions under these four counts are void as a matter of
law. A-4667-11T1
9. Expert should not be permitted
to testify on ultimate issue. State v. Simms 224 NJ 393 (2016)
Expert testimony that
“embraces an ultimate issue to be decided by the trier of fact,” N.J.R.E.
704, is not admissible unless the subject matter is beyond the ken of the
average juror. State v. Nesbitt, 185 N.J. 504, 515-16, 519 (2006).
Expert testimony is not necessary to tell the jury the “obvious” or to resolve
issues that the jury can figure out on its own. In addition, a prosecutor may
not “summarize straightforward but disputed evidence in the form of a
hypothetical and then elicit an expert opinion about what happened.” State
v. Sowell, 213 N.J. 89, 102 (2013).
The erroneously assumed fact
in the hypothetical question—that the object in defendant’s hand was a bundle
of heroin packets—unfairly buttressed the State’s case. It was for the jury to
decide the identity of the object based on an examination of the totality of
the evidence. The ultimate-issue testimony on conspiracy, moreover,
impermissibly intruded into the jury’s singular role as trier of fact.
10. No automatic rejection for PTI
State v Rizzitello
Defendant was
indicted on a single count of fourth-degree operating a motor vehicle during
the period of license suspension for a second or subsequent conviction for
driving while intoxicated, in violation of N.J.S.A. 2C:40-26(b). The State
appeals from the order of the trial court which admitted defendant into PTI
over the prosecutor's veto. The court reversed. The prosecutor's decision to
reject defendant's application for admission into PTI did not constitute
"a patent and gross abuse of discretion" as defined by the Supreme
Court in State v. Roseman, 221 N.J. 611, 625 (2015).
The court rejects
the prosecutor's characterization of the fourth degree offense under N.J.S.A.
2C:40-26(b) as falling within the crimes that by their very nature carry a
presumption against admission into PTI. A-0536-15T2
Seminar: Review of
the Major Municipal Court Cases from 2016 Middlesex County Bar Association
seminar
Tuesday, November 22, 2016 Municipal Court Practice
CLE Seminar
2:00 PM until 4:00 PM
Middlesex County Bar Association MCBA Office 87 Bayard Street New Brunswick, New
Jersey 08901
Presenters: Kenneth A. Vercammen, Esq., Edison
Scott Morrell Esq., East Brunswick
To Register:
Phone: 732.828.3433, x. 102
Cost: $30-Young Lawyers; $40-MCBA Members; and $75-All
Others
We thank Summer Blast Happy Hour
July 15 attendees
The party at Bar Anticipation
was a good time. We thank over 160 professionals and friends who attended the
Summer Blast Happy Hour & Networking Social at Bar Anticipation. My family
and I had a great time catching up with old friends and meeting new ones.
We appreciate the many
attendees donated canned goods donated which were donated to St. Matthews
Edison Food Pantry.
NJSBA Happy hour Facebook photos
We thank the co-sponsors
sponsors for the Happy Hour the NJ State Bar Association Sections and
Committee, Greater Monmouth Chamber of Commerce, Monmouth County Bar
Association, Retired Police & Fire Middlesex Monmouth Local 9,
NJ Lakewood Chamber of Commerce.
Special thanks to our
volunteers who checked in the guests and gave out wristbands and who helped
hang up the banners. Mark you calendar for the 2017 Summer Happy Hour
July 14, 2017 Friday 5:30-7:55.
2017 MUNICIPAL COURT COLLEGE seminar
March 20, 2017 5:30pm-9:00pm
NJ
Law Center, New Brunswick
$150-
$180 depending on membership, Municipal Court Judges ½ price
sponsor
NJICLE NJ Institute for Continuing Legal Education
A
Division of the NJSBA
Phone: (732) 214-8500
Index
1. Prosecutor must provide
videotape and audiotape plus names of officers from other towns involved in
stop
State v. Stein
2.
Suppression where stop based only for high beam State v. Scriven
3.
Third Party did not have authority to consent to search of premises
State v. Cushing
4. Search warrant
did not permit search of persons off premises State v. Bivins
5. No search
warrant needed for some Cell phone records State v. Lunsford
6. Police
video is public record under OPRA Paff
v Ocean County Prosecutors Office
7 No automatic right to discovery of other files
State v. Hernandez
8. Prosecutor used improper
arguments of victim’s state of mind
State v Ravi
9. Expert
should not be permitted to testify on ultimate issue. State v. Simms
10. No automatic rejection for PTI
State v Rizzitello
11. Seminar: Review of
the Major Municipal Court Cases from 2016 Middlesex County Bar Association
seminar
N.J. Municipal Court - Law
Review SUBSCRIPTION INFO
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732-572-0500
Tax ID # available
. Municipal Court and criminal law attorneys
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Kenneth
Vercammen is an Edison,
Middlesex County, NJ trial attorney where he
handles Criminal, Municipal Court, Probate, Civil Litigation and Estate
Administration matters. Ken is author of the American Bar Association's award
winning book “Criminal Law Forms” and often lectures to trial lawyers of the
American Bar Association, NJ State Bar Association and Middlesex County Bar
Association. As the Past Chair of the Municipal Court Section he has served on
its board for 10 years.
Awarded the
Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar
Association, he also received the NJSBA- YLD Service to the Bar Award and the
General Practitioner Attorney of the Year, now Solo Attorney of the Year.
Ken Vercammen is
a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law
issues for the NJICLE- New Jersey State Bar Association, American Bar
Association, and Middlesex County Bar Association. His articles have been
published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum,
GP Gazette and New Jersey Lawyer magazine.
He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic
Case” and serves as is the Editor in Chief of the NJ Municipal Court Law
Review.
For
nine years he served as the Cranbury Township Prosecutor and also was a Special
Acting Prosecutor in nine different towns. Ken has successfully handled over one
thousand Municipal Court and Superior Court matters in the past 27 years.
His private practice
has devoted a substantial portion of professional time to the preparation and
trial of litigated matters. Appearing in Courts throughout New Jersey several
times each week on Criminal and Municipal Court trials, civil and contested
Probate hearings. Ken also serves as the
Editor of the popular legal website and related blogs. In Law School he was a
member of the Law Review, winner of the ATLA trial competition and top ten in
class.
Throughout his career he has served
the NJSBA in many leadership and volunteer positions. Ken has testified for the
NJSBA before the Senate Judiciary Committee to support changes in the DWI law
to permit restricted use driver license and interlock legislation. Ken also
testified before the Assembly Judiciary Committee in favor of the first-time
criminal offender “Conditional Dismissal” legislation which permits dismissal of
some criminal charges. He is the voice of the Solo and Small firm attorneys who
juggle active court practice with bar and community activities. In his private life he has been a member of the NJ
State champion Raritan Valley Road Runners master’s team and is a 4th
degree black belt.
KENNETH VERCAMMEN
ATTORNEY
AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
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