Major Municipal Court and Criminal Cases By Kenne th Verca m m e n , Esq. 1. State m e n t by eye witness not admissible as emerge ncy investiga tion. State in the Inter es t of J.A. 195 NJ 324 (20 0 8 ) . The hearsay statements were a narrative of past events and made while neither the declarant nor victim was in imminent danger. The statements were testimonial and, because the declarant was not produced as a witness or subject to cross-examination, the admissions of the statements violated J.A.’s Sixth Amendment right to confront the witnesses against him. 2. State m e n t to DYFS worker under emerge ncy is admissible. State v. Buda 195 NJ 278 (20 0 8 ) The trial court did not abuse its discretion in determining that the child’s statements to his mother and the DYFS worker were properly admitted into evidence as “excited utterances” under N.J.R.E. 803(c) (2). The Child’s statements were not testimonials and, hence, their admission at trial did not run afoul of the Confrontation Clause. 3. Craw ford Hearsay Rule does not apply to Breathalyze r Certifica tion. State v. Sweet 195 NJ 357 (20 0 8 ) The ampoule testing certificates and the breath testing instrument inspection certificates are hearsay statements admissible under the business records exception to the hearsay rule. Those records also are nontestimonial and thus are admissible under the Confrontation. 4 NJ Supre m e Court holds new Alcotest DWI brea t h testing machine results admissible State v. Chun 194 NJ 54 (20 0 8 ) The Supreme Court on March 17, 2008 adopted, as modified, the reports and recommendations of Special Master Judge King. This landmark decision changes the prosecution of DWI cases in New Jersey forever. Subject to certain conditions, the Court holds that the Alcotest is scientifically reliable and that its results are admissible in drunk driving prosecutions.
5 . Post- conviction relief (PCR) Motion should be filed in the municipal court in which the prior uncounseled conviction occurred. State v. Schadewald 400 NJ Super. 350(2008) A defendant convicted of a second or subsequent offense of driving
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while intoxicated (DWI), N.J.S.A. 39:4- 50, who seeks a step- down in sentence on the ground that one or more of the prior convictions were uncounseled, pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), must first petition for postconviction relief (PCR) in the municipal court in which the prior uncounseled conviction occurred. The PCR proceedings in municipal court are governed by Rule 7:10- 2(f) and (g). 6. Five Year Post Conviction Limit can be Relaxed in DWI. State v. Bringhurst 401 NJ Super. 421 (App. Div. 200 8 ) The court concluded that post- conviction relief (PCR) petitions brought pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), must comply with Rule 7:10- 2, and are subject to the five- year limit contained in Rule 7:10- 2 (g)(2). However, those time limits may be relaxed to prevent an injustice. Because a Laurick PCR cannot be brought until there is a second or subsequent DWI conviction, the time bar should not mechanically be applied to deny the petition. However, to obtain the benefit of relaxation of the time limit, a defendant must put forth a prima facie case for relief in his petition itself. In this case, where defendant's prior, uncounseled conviction was allegedly rendered ten years earlier, he failed to put forth a prima facie case for relief Therefore, its denial was appropriate.
7. 30 year old uncounsele d DWI Conviction could not enhance jail. State v. Binkiew icz (App. Div. Decided May 6, 200 8 ) A561 3 - 06T4, Unpublished. Where defendant’s first conviction for a DWI occurred more than 30 years ago, his testimony and certification that he did not know that he was entitled to counsel and was not asked if he wanted an adjournment to obtain counsel is sufficient under Laurick to establish that the conviction was uncounseled. Having found that the conviction was uncounseled, and since subsequent convictions exceeded the 10- year time span under N.J.S.A. 39:4- 50(a)(3), the judge correctly applied the step- down provision and sentenced defendant as a second offender with respect to incarceration but as a third offender with respect to the administrative penalties after he pleaded guilty to his third DWI conviction. Source : 192 N.J.L.J. 412
8. Police cannot access defenda n t ’s Intern e t records. State v. Reid
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194 NJ 386 (20 0 8 ) Pursuant to Article I, Paragraph 7, of the New Jersey Constitution, the Court holds that citizens have a reasonable expectation of privacy in the subscriber information they provide to Internet service providers. Accordingly, the motion to suppress by defendant Reid was properly granted because the police used a deficient municipal subpoena. Law enforcement officials can obtain subscriber information by serving a grand jury subpoena on an Internet service provider without notice to the subscriber. The State may seek to reacquire the information with a proper grand jury subpoena because records of the information existed independently of the faulty process used by the police, and the conduct of the police did not affect the information. 9. Police do not need a reasona ble suspicion before they may access the NCIC database . State v. Sloane 193 NJ 423 (20 0 8 ) During a motor vehicle stop, the passenger, like the driver, is seized under the federal and state constitutions. Police do not need a reasonable suspicion before they may access the NCIC database and, because accessing the NCIC database was within the scope of the traffic stop and did not unreasonably prolong the stop, there was no basis to suppress the evidence found.
10. Noise ordinance not pree m p t e d by state law State v. Krause 399 NJ Super. 579 (App. Div. 200 8 ) Based on defendant's failure to meet his burden of proving facts that would establish that the Hackettstown noise ordinance was preempted by the Noise Control Act of 1971, N.J.S.A. 13:1G- 1 to -23, the ordinance was held valid and the conviction affirmed. However, the opinion noted that local noise ordinances may require DEP approval to be enforceable at least with respect to certain facilities, such as commercial and industrial sites.
11. Commercial Vehicle could be searched during routine safety inspection State v. Hewit t 400 NJ Super. 376 (20 0 8 ) A police officer who makes observa tions during a routine safety inspection of a commercial truck tha t reasona bly lead him to believe it contains a hidden compar t m e n t containing contrab a n d is
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not requir e d to obtain a search warran t before under t a k ing to confirm the existence of the hidden compar t m e n t and dete r min e its contents . 12 Appella t e Division Cannot Amend Refusal State m e n t . Spell 142 NJ 514 (20 0 8 )
State v.
The Court affirms defendant’s conviction substantially for the reasons expressed by the Appellate Division. The Court vacates that part of the Appellate Division’s holding that requires police officers to read the final, additional paragraph of the standard statement whenever a defendant refuses to provide a breath sample immediately upon request. The Legislature has vested in the Motor Vehicle Commission the authority to determine the Standard Refusal Statement. 13. Appella t e Division in dicta Says All 3 rd Offense Unsafe Have 4 Points. Patel v. MVC 403 NJ Super. 373 (App. Div. 200 8 ) New Jersey's unsafe driving statute, N.J.S.A. 39:4- 97.2, provides that the Motor Vehicle Commission shall assess the driver points for a third or subsequent offense. The statute also affords relief from the assessment of points when an offense is committed more than five years after a prior offense. In this appeal, the court has construed that language to apply only to offenses that occur after the third offense. 14. No Plea Bargain of DWI on Appeal. State v. Rastogi 403 NJ Super. 581 (Law Div. Decided October 27, 200 8 ) No. 14- 3-2023 The Law Division may not accept a plea bargain to resolve a de novo appeal on the record of a municipal court conviction of driving under the influence. 15. School Principal May Search Car on School Grounds if Reasonably Suspect Criminal Activity. State v. Best 403 NJ. Super. 428 (App. Div. 200 8 ) A school principal may search a student's car parked on school grounds whenever, under the totality of the circumstances, the principal reasonably suspects that evidence of criminal activity will be found in the vehicle. In light of the strong State interest in maintaining order, safety and discipline in the school environment, neither probable cause nor a warrant is required. 16 Police could stop car based on call by daugh t e r tha t fathe r was
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drunk State v. Amelio 197 NJ 207 (2008) Based on the report to dispatch by defendant’s seventeen- year- old daughter, who identified herself, reported that her father was driving drunk, described the vehicle, and exposed herself to criminal prosecution if her report was knowingly false, there was reasonable and articulable suspicion of an offense to support a constitutional motor vehicle stop by the police. 17. 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 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. 18. Four Factors require d to withdr a w guilty plea NJ __ (A-72- 07) 2-4-09
State v. Slater __
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. 19 Police did not need to readminis te r Miranda warnings Nyhammer ___ NJ ___ 2-3-09 (A-85- 07)
State v.
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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. 20 Drifting within a Lane Suppor ts MV Stop by Cops - State v. Woodruff 403 NJ Super 620 (Law Div. Mercer 200 8 ) In this Law Division opinion a court construed the provisions of the lane violation statute. N.J.S.A. 39:4- 88(b). The Law Division held that it is not necessary for the State to demonstrate that weaving in a lane would affect the safety of other drivers. The Court also held that two instances of observed weaving within a lane constituted sufficient reasonable suspicion for the officer to effect a motor vehicle stop of the offending auto. Source: Muni- Mail 11/24/2008 21. No sequestr a tion of defense exper t Popovich __ NJ Super. __ A-2862- 07T4 2-17- 09
in
DWI
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State
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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 permit the expert to watch the trial testimony. State v. Lanzel, 253 N.J. Super. 168 (Law Div. 1991) was distinguished. 22. Telephonic search warra n ts approve d State v. Juan Pena- Flores __ NJ ___ (A-129- 06) 2-25- 09 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. Also State v. Charles Fuller (A-15- 07)
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