2009 Major Mun Cases

200 9 Major Municipal Court and Criminal Cases

By Kenne th Verca m m e n , Esq. 1. Refusal Stands Even if Driver Does Not Understa nd English. State v. Marquez 408 NJ Super. 273 (App. Div. 200 9 ) The police have no constitutional obligation to translate into Spanish the standard statement under the breath- test refusal statute, N.J.S.A. 39:450.2(e), to a licensed New Jersey driver arrested for drunk driving who does not understand English. The court reaffirms the Law Division's holding in State v. Nunez, 139 N.J. Super. 28, 32- 33 (Law Div. 1976), that no such translation is required. However, we recommend that, as an administrative matter, the Motor Vehicle Commission prospectively consider having the standard statement translated into Spanish and perhaps other prevalent foreign languages.

2. US Supre m e Court Rules Lab Report Not Admissible in Criminal Case. Melendez- Diaz v. Mass 129 S.Ct. 252 7 (20 0 9 ) Defendant's drug conviction is reversed, where the trial court's admission of the prosecution's certificates by laboratory analysts, stating that material seized by police and connected to Defendant was cocaine of a certain quantity, violated petitioner's Sixth Amendment right to confront the witnesses against him.

3. Judge Can Suspend DL for Traffic Offense. State v. Moran 408 NJ Super. 412 (App Div. 200 9 ) The Court rejects the constitutional and repeal by implication (though the subsequent creation of the motor vehicle point system) challenges to N.J.S.A. 39:5- 31, which authorizes, without standards or limits, driver's license suspensions for willful motor vehicle violations.

4. Passenge r Pat down during traffic stop permit t e d if belief gang membe r is armed and dange rous Arizona v Johnson 172 L. Ed. 2d 694 (2009) While patrolling near a Tucson neighborhood associated with the Crips gang, police officers serving on Arizona’s gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back- seat 1

passenger, whose behavior and clothing caused Trevizo to question him.

After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him get out of the car in order to question him further, out of the hearing of the front- seat passenger, about his gang affiliation. Because she suspected that he was armed, she patted him down for safety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him.

Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor Held: Officer Trevizo’s patdown of Johnson did not violate the Fourth Amendment ’s prohibition on unreasonable searches and seizures.

5. Four Factors requir e d to withdr a w guilty plea State v. Slater 198 NJ 145 (2009) Judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of the defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal could result in unfair prejudice to the State or unfair advantage to the accused. This defendant has met his burden and is entitled to withdraw his guilty plea in the interest of justice.

6. Police did not need to readministe r Miranda warnings Nyhammer 197 NJ 383 (2009)

State v.

The trial court did not err in finding, based on the totality of the circumstances, that Nyhammer knowingly, voluntarily, and intelligently waived his Miranda rights under both federal and state law. Thus, the trial court did not abuse its discretion in admitting Nyhammer’s confession into evidence. Further, a defendant cannot assert that he was denied his right of confrontation under the federal and state constitutions unless he first attempts to cross-examine the witness on the core accusations in the case.

Nyhammer had the opportunity to cross- examine the child- victim at trial about her out- of-court testimony implicating him in the crime but chose not to do so; therefore, he cannot claim that he was denied his right of confrontation.

7. No sequestr a tion of defense exper t in DWI case State v. Popovich 405 NJ Super. 392 (App. Div. 2009) Defendant's conviction is reversed; the trial court erred when it ruled that defendant's expert was subject to a sequestration order and would not 2

permit the expert to watch the trial testimony.

8. Car search requires exigent circumsta nc es; No autom a tic auto exception; Telephonic search warran ts approve d State v. PenaFlores 198 NJ 6 (2009) The Supreme Court affirms its longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement. Whether exigent circumstances exist is to be decided on a case-by- case basis with the focus on police safety and the preservation of evidence. The Court also determines that a warrant obtained by telephonic or electronic means is the equivalent of an in-person warrant and does not require proof of exigent circumstances.

9. Police cannot search car passenge r compar t m e n t if occupan t already arreste d. Arizona v. Gant 129 S. Ct. 171 0 (20 0 9 ) Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that an arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Belton overruled.

10. Constructive possession is decision by trier of fact, not exper t State v. Reeds 197 NJ 280 (2009) Such possession can be constructive, meaning that "`although [a defendant] lacks physical or manual control, the circumstances permit a reasonable inference that [the defendant] has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time �

11. Rebutt a bl e presum p tion a road sign is properly posted State v Smith 408 NJ Super. 484 (App. Div. 2009) Defendant's conviction on trial de novo for violating N.J.S.A. 39:4125 is affirmed because he turned his vehicle "around so as to proceed in the opposite direction on a highway" on which a "no U turn" sign was conspicuously posted. Defendant does not have to perform a "u turn."

The West Annotated version of the statute contains an error. The "no U turn" sign need not be on a "state" highway, and therefore whether or not the road was a "state" highway was irrelevant, as there is a rebuttable presumption the statute was properly posted. As defendant was not entitled to assigned counsel, the fact he was improperly assigned counsel in the Law Division does not require vacation of the municipal conviction because he was not

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assigned counsel there.

12. Arrest and Search by police based invalid arrest warran t does not suppress drugs & gun found Herring v Unite d States 129 S. Ct. 695 (20 0 9 ) 13. Six- month Alcotest inspection does not apply until afte r March 200 8 . State v. Pollock 407 NJ Super. 100 (App. Div. 200 9 ) Defendant appealed his conviction for a per se violation of N.J.S.A. 39:4- 50, driving with a blood alcohol concentration of 0.08 percent or more.

The Court is called upon to determine whether the semiannual- recalibration requirement for Alcotest machines, established by the Supreme Court in State v. Chun 194 N.J. 54 is applicable to cases in which the test was administered prior to Chun and in compliance with the then existing annualrecalibration protocol. Because the court determined that the change mandated by Chun was not intended to be applied to such, the court affirmed the conviction.

14. In DWI Alcotest, State Must Prove Defenda n t was Observe d for 20 Minut es Prior to Test. State v. Filson 409 NJ Super. 246 (Law Div. 200 9 ) In a DWI municipal appeal, the court held that before Alcotest results may be admitted into evidence, the state must prove, by clear and convincing evidence, that the defendant was observed for 20 minutes before taking the test. Eye-to- eye monitoring is not necessarily required, if the defendant is observed by sound and smell. Yet, if the observer leaves the room during the 20 minutes, observation must begin anew. What suffices as observation must be determined in view of the observation requirement’s purpose to assure that the suspect has not ingested or regurgitated substances that would confound the test results.

15. Law Division Judge Says that Entire Judge King Alcotest Report was not Adopte d by Supre m e Court. State v. Coppola ___NJ Super.___ Law Div. Camden Cty. 14- 3- 451 3 approved 7-16- 2009 On Sept. 6, 2006, Giovanni Coppola appeared before Hon. Robert Zane, J.M.C., in Merchantville, and entered a guilty plea to violating N.J.S.A. 39:4- 50. The guilty plea was entered with the caveat of a Chun stay.

Following the Supreme Court's holding in Chun , the defendant sought to withdraw his guilty plea on the grounds that Chun adopted Special Master King's report, which stated that higher scrutiny must be given to cases where the Alcotest results are at the threshold levels (.04, .08, or .10).

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The Camden Judge held that the special master's report was only adopted as modified within the Chun opinion and that the Chun opinion found that the Alcotest was reliable. The Camden Judge held that the Chun holding did not adopt King's report in toto and, as such, a per se violation remains a per se violation. The purpose of the per se violation is to prevent pretextual defenses where the defendant has been found to be at or above the threshold blood- alcohol limit. The court held that the Chun decision did not open the door for pretextual defenses and no additional scrutiny must be given to threshold level cases. [Decided April 30, 2009.] Source: Daily Briefing July 13, 2009 16.

Condo Parking Garage is Quasi- public for Refusal Violation.

State v. Bertr a nd 408 NJ Super. 584 (App. Div. 200 9 ) Defendant's conviction for refusing to provide breath samples, N.J.S.A. 39:4- 50.2, is affirmed. The parking garage of a high- rise condominium that held 354 cars, and the use of which was restricted to residents of that building, constituted a “quasi- public area" for purposes of the statute.

17. PTI can be conditione d on a plea to a traffic offense.

Mosner 407 NJ Super. 40 (App. Div. 200 9 )

State v.

Admission into the Pre-Trial Intervention program can be conditioned on the defendant's guilty plea to a motor vehicle offense carrying a mandatory 180- day term of license jail where the defendant's attitude would render pretrial intervention ineffective. [Despite PTI guidelines that prohibit guilty plea as a condition of PTI] 18. Miranda Violation cannot be Asserte d by Co- defenda n t .

Baum 199 NJ 407 (20 0 9 )

State v.

Defendant passenger Moore’s motion to suppress evidence found during a warrantless search of the vehicle in which he was riding should have been denied because he did not have standing to argue that the driver’s right against self- incrimination was violated and because the search was not unreasonable.

19. Mirror Obstruction Should Obstruc t Driver ’s View for Violation.

State v. Barrow 408 NJ Super. 509 (App. Div. 200 9 ) A police officer stopping a motor vehicle for violating N.J.S.A. 39:3- 74 must provide articulable facts showing that he or she reasonably believed that an object hanging from a rearview mirror obstructed the driver's view. [mini boxing gloves hanging] 5

20. Warr a n tless Search of house to Check on Unatt e n d e d Child Permit t e d Under Community Careta king. State v. Bogan 200 NJ 61 (20 0 9 ) The police officer’s warrantless entry into an apartment for the purpose of taking the telephone from an unattended child to speak with his parent was justified by the community caretaking doctrine because the officer had a duty to identify a responsible adult for the child and to ensure his safety.

Because the officer was lawfully on the premises when he observed in plain view defendant, who fit the suspect’s description, he had a right to direct his fellow officers to question defendant. Defendant’s Mirandized statements in response to questioning were properly admitted at trial.

21. 5- 4- 09 State v. Terry W. Coder (A- 28- 08) In defendant’s criminal trial on charges of sexual assault on a minor, the out- of-court statements by the victim – a three- year old child– as testified to by her mother, were properly admitted because the statements were relevant and admissible under the tender years exception to the hearsay rule. Additionally, because the child’s statements were not testimonial, they did not implicate the defendant’s Confrontation Clause rights.

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