Top Criminal Cases affecting NJ Municipal Courts 2016

Top Criminal Cases affecting NJ Municipal Courts 2016

TABLE OF CONTENTS

By Kenneth Vercammen

1. DWI Refusal notice withstands challenge. State v Quintero-------------- 2

2. Sup Mt denied where police looking in house for missing dementia patient found pot plants State v Mordente------------------------------------------------------------------------- 3

3. Police video is public record under OPRA. Paff v Ocean County Prosecutors Office       4

4.  Defense to refusal sometimes where person medically unable to provide breath samples. State v. Monaco----------------------------------------------------------------------------------- 5

5. No Jury trial for DWI. State v. Denelsbeck-------------------------------- 6

6.  Police can stop for broken taillight. State v. Sutherland---------------- 7

7. US Supreme Court permits DWI breath tests but rejects blood test without warrant. Birchfield v. North Dakota--------------------------------------------------------------------------- 8

8. Out of state DWI counts for criminal driving while suspended. State v. Luzhak      9

9. Prosecutor must provide videotape and audiotape plus names of officers from other towns involved in stop State v. Stein------------------------------------------------------------------ 10

10. Suppression where stop based only for high beam State v. Scriven-- 11

11. Third Party did not have authority to consent to search of bedroom. State v. Cushing 12

12. NJ Supreme Court makes “plain view” car searches easier.  State v. Gonzales    13

13. Protective search on house not permitted where no evidence another person present. State v. Bryant--------------------------------------------------------------------------------- 13

14. Driver with prior school zone DWI sentenced as 2nd Offender. State v. Wheatley 13

15. Town outside surveillance camera not subject to OPRA but maybe subject to common law. Gilleran v. Township of Bloomfield------------------------------------------------------- 14

16. Twitter statement admissible in criminal trials. State v Hannah------ 14

17. No obstruction for failure to provide DL for parking ticket.  State v Powers 15

18. Official misconduct does not apply to EMT. State v. Morrison-------- 15

20. New Expungement Law effective April 18, 2016 for dismissed cases 17

21. New Criminal rules effective Jan 1, 2017------------------------------ 18

1. DWI Refusal notice withstands challenge. State v Quintero

443 NJ Super 620 (App. Div. 2016)

The court affirms defendant's de novo conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. Defendant argues that the Attorney General's current standard statement under N.J.S.A. 39:4-50.2(e) is fundamentally deficient for not specifying the mandatory minimum penalties for refusal. In State v. O'Driscoll, 215 N.J. 461, 479-480 (2013), the Supreme Court noted, but declined to address, the sufficiency of the standard statement.

The court hold that the current standard statement satisfies the statutory mandate — that is, informing motorists and impelling compliance — by adequately informing drivers of the maximum potential license revocation and fine, and the possibility of ignition interlock, that they face for refusal. In so ruling, The court note that adding other details, including the differing mandatory minimum and maximum penalties for first offenders, second offenders, and certain third offenders, may run the risk of submerging the most significant penalties in those details.

2. Sup Mt denied where police looking in house for missing dementia patient found pot plants State v Mordente

444 NJ Super. 393 (App. Div. 2016)

    The court affirms the denial of a motion to suppress the evidence of marijuana plants found in the basement of a home searched as part of the police protocol for locating missing persons. The sixty-five year old missing woman in this case suffered from dementia, and was reported by her son as having left the home at some point during the night prior to the search. 

In his dissent, Judge Fuentes opines that the police emergency aid doctrine does not justify this search under the guidelines set forth in State v. Vargas, 213 N.J. 301 (2013), and prior case law. 

3. 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.  

See also A-88-15  John Paff v. Galloway Township (077692)

Does the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13 require the defendant township to produce electronically stored information about emails (name of sender, recipient, date and subject) sent by certain public employees over a specified period of time?

Certification granted:  7/15/16

4.  Defense to refusal sometimes where person medically unable to provide breath samples. State v. Monaco

444 NJ Super 539 (App. Div. 2016)

    In affirming defendant's conviction of driving under the influence and refusal to submit to a chemical breath test, the court address two points related to the refusal conviction. First, applying State v. O'Driscoll, 215 N.J. 461 (2013), the court holds that defendant failed to present evidence that her refusal was materially affected by the failure to inform her that she would be required to install an ignition interlock if convicted.

    Second, the court holds that a defendant bears the burden to prove that he or she lacked the physical capacity to perform the chemical breath test. In this case, defendant maintained her asthma rendered her incapable of providing the minimum air volume. Although defendant's treating physician testified about her pulmonary function, the Law Division judge found the proofs were insufficient to establish defendant was incapable of providing the requisite air volume.

5. No Jury trial for DWI. State v. Denelsbeck

223 NJ 103 (2016)

   Third or subsequent DWI offenders are not entitled to a jury trial, and defendant’s conviction procured by a bench trial did not violate his Sixth Amendment right to a jury trial. 

6.  Police can stop for broken taillight. State v. Sutherland

445 NJ Super. 358 (App. Div. 2016)

A police officer stopped defendant's car because one of the four taillights was not illuminated. The Law Division granted defendant's motion to suppress finding that N.J.S.A. 39:3-61(a) and -66 only required one functioning tail light on each side and the officer's mistake rendered the stop unreasonable. 

The court reversed, noting the confusing state of Title 39 and concluding that the officer had reasonable and articulable suspicion of a motor vehicle violation.

7. US Supreme Court permits DWI breath tests but rejects blood test without warrant.

Birchfield v. North Dakota  136 S. Ct. 2160 (2016)

  The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. 

8. Out of state DWI counts for criminal driving while suspended. State v. Luzhak 

445 NJ Super. 241 (App.Div. 2016)

    In this case of first impression, the court interpreted N.J.S.A. 2C:40-26(b), which provides that it is a crime of the fourth degree to operate a motor vehicle during a period of license suspension if the license was suspended for a second violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4(a), as including out- of-state convictions for DWI.

The court reached its determination after consideration of analogous statutes relating to interstate recognition of motor vehicle violations and the use of equivalent out-of-state convictions as prior offenses for enhanced DWI sentencing. The court also considered the legislative policy behind the statute's enactment. (Kenneth Vercammen handled this case).

9. 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. 

     Rule 3:13-3, Rule 7:7-7(b) (7)   names and addresses of any persons whom the prosecuting attorney [or you] knows to have relevant evidence or information including a designation by prosecuting attorney [or you] as to which of those persons prosecuting attorney [or you]  may call as witnesses

10. 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. 

11. Third Party did not have authority to consent to search of bedroom. 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.

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 Lisa Mylroie as the basis for valid third-party consent to his initial search of defendant’s bedroom. 

12. NJ Supreme Court makes “plain view” car searches easier.  State v. Gonzales

__ NJ __ (2016)

    The Court now excises the inadvertence requirement from the plain-view doctrine. Because it is setting forth a new rule of law, the Court will apply the reformulated plain-view doctrine prospectively. Nevertheless, the Court holds that the trial court’s finding of inadvertence is supported by credible evidence in the record. The Court therefore reverses the judgment of the Appellate Division and reinstates the trial court’s denial of the motion to suppress.  A-5-15

13. Protective search on house not permitted where no evidence another person present. State v. Bryant

 __ NJ __ (2016)

   The officers here lacked reasonable and articulable suspicion that another party was present, much less that another party posed a danger to officer safety. The protective sweep was thus insufficient to establish an exception to the warrant requirement, and any evidence found as a result of that sweep—even if it was found in plain view—must be excluded and suppressed as fruit of the poisonous tree. A-2-15

14. Driver with prior school zone DWI sentenced as 2nd Offender. State v. Wheatley

 __ NJ Super. __ (App. Div. 2016) 

       Distinguishing State v. Reiner, 180 N.J. 307 (2004), the court held that a defendant who was previously convicted of driving while intoxicated (DWI) in a school zone in violation of N.J.S.A. 39:4-50(g) is subject to the increased penalties applicable to second offenders under N.J.S.A. 39:4-50(a)(2) when he was subsequently convicted of a conventional DWI in violation of N.J.S.A. 39:4-50(a). A-5026-14T1

15. Town outside surveillance camera not subject to OPRA but maybe subject to common law. Gilleran v. Township of Bloomfield

__ NJ __ (2016)

Compelling release on demand of security surveillance video would be contrary to the legislative intent motivating OPRA’s exemptions based on security concerns. The Township’s explanation for denying the request for the footage was adequate. Requests for video from surveillance cameras protecting public facilities are better analyzed under the common law right of access. The Court therefore reverses the judgment of the Appellate Division and remands the matter for further proceedings based on the unresolved common law claim. A-15-15

16. Twitter statement admissible in criminal trials. State v Hannah

__ NJ Super. __ (App. Div. 2016)

Defendant was charged with hitting the victim in the face with her shoe. At trial, the State introduced a screenshot taken by the victim of a "tweet" allegedly posted by defendant after the incident saying "shoe to ya face." Defendant argues that this Twitter posting was improperly admitted into evidence, citing a Maryland case requiring that such social media postings must be subjected to a greater level of authentication. The Appellate Division rejects that contention, holding that New Jersey's current standards for authentication are adequate to evaluate social media postings. Under those standards, it was not an abuse of discretion to admit the tweet based on the presence of defendant's photo and Twitter handle, its content containing information specific to the parties involved, and its nature as a reply to the victim's communications. A-5741-14T3 

17. No obstruction for failure to provide DL for parking ticket.  State v Powers

__ NJ Super. __ (App. Div. 2016)

Defendant was convicted after a trial in municipal court, and again on appeal to the Law Division, of obstruction based on both physical interference and an "independently unlawful act." N.J.S.A. 2C: 29-1(a). The court remanded for findings that might illuminate the judge's conclusory determination that defendant physically interfered with a state trooper in the issuance of a parking ticket at a highway rest stop.

       The court, however, also held that defendant, in these circumstances, could not be convicted of obstruction by means of "an independently unlawful act" that was based solely on N.J.S.A. 39:4-57, which provides that "[drivers of vehicles . . . shall at all times comply with any direction . . . of a member of a police department" when the officer is in the course of "enforcing a provision of this chapter." Defendant was outside his vehicle and, therefore not a driver, and the trooper was not enforcing Chapter 39 because he was only issuing a parking ticket. A-3764-14T2 

18. Official misconduct does not apply to EMT. State v. Morrison

__ NJ __ (2016)

A municipality’s contracting for emergency medical services through a private, non-profit first-aid squad does not convert the EMTs into public servants because they are not exercising authority of a uniquely governmental nature or performing a function exclusive to government in any traditional sense, regardless of whether there are one or more non-profit providers of publicly funded emergency medical services for the municipality. Morrison did not commit the offense of official misconduct because he was not performing a governmental function and therefore was not a public servant. The Court affirms the judgment of the Appellate Division and remands for proceedings on the four remaining counts. A-36

19. Victim Statement to police not admissible at trial State in Interest of A.R. __ NJ Super. __ (App. Div. 2016)

Appellant, a fourteen-year-old juvenile, was found guilty of sexually touching a seven-year old boy on a bus returning from summer camp. The alleged victim was developmentally comparable to a three-year-old. After getting off the bus, he blurted out to his mother's cousin that appellant had touched him during the ride. Eighteen days later, a detective interviewed the younger child on videotape at the county prosecutor's office. The child repeated the accusation, demonstrating it with anatomical dolls. No eyewitnesses on the bus, including the driver and aide, corroborated the incident.

At a pretrial Rule 104 hearing, the court ruled that both of the child's hearsay statements were sufficiently trustworthy to admit under the "tender years" hearsay exception, N.J.R.E. 803(c)(27). The court then queried the younger child at the start of the trial about his ability to discern and tell the truth. The court twice concluded from the child's troublesome responses that he was not competent to testify under the criteria of N.J.R.E. 601. Nevertheless, the court accepted the child's hearsay statements and trial testimony repeating the accusations, based on the so-called "incompetency proviso" in Rule 803(c)(27), which treats children of tender years as available witnesses even if they are not competent to testify.

The court concluded that the younger child's statements during his recorded interview with the detective were "testimonial" under the Confrontation Clause, as construed by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. The objective "primary purpose" of the interview was to elicit and preserve statements from an identified child victim of sexual abuse about wrongful acts for potential use as evidence in a future prosecution. The child's testimonial statements to the detective here are distinguishable from the non-testimonial statements that a young child victim made to her teachers at school in Ohio v. Clark, 135 S. Ct. 173 (2015).

       Although appellant's counsel attempted to cross-examine the child, that exercise was inadequate to safeguard his confrontation rights, given the child's undisputed incompetency. Hence, the court reversed the admission of the detective's interview and the child's in-court testimony because it violated appellant's constitutional rights. However, as appellant concedes, the child's spontaneous assertion after getting off the bus was not testimonial under the Confrontation Clause and was properly admitted. The court remanded for the trial court to reconsider the proofs in light of the determinations. A-2238-14T3 

20. New Expungement Law effective April 18, 2016 for dismissed cases

New Expungement Law

See  Directive #02-16

Protocol for "Drug Court Expungements" (N.J.S.A. 2C:35-14(m))  

and Expungements of Arrests Not Resulting in Conviction  

(N.J.S.A. 2C:52-6)

dated May 23,2016

You should revise you Retainer agreements: expungement not included.

21. New Criminal rules effective Jan 1, 2017

No more cash bail

Everyone with a Warrant gets to spend at least one night in jail !!!

The Supreme Court by order dated August 30, 2016 has adopted a package Criminal Justice Reform-related rule amendments – amending various Part III and Part VII Rules – to be effective January 1, 2017. Read the Court’s Omnibus2 Rule Amendment Order.

You need to set up an Ecourts login and file Superior Court motions online

Also good when potential client shows up with no copy of the complaint, but ketchup stains on his shirt, plus little ability to pay your retainer.

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 4^th degree black belt.

KENNETH VERCAMMEN

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500