Major Municipal Court and Criminal Cases By Kenneth Vercam men , Esq. What is Crawford -Defendan t ’s right of confronta t ion was violated by admit t ing into evidence a lab certificate. Chemist required State v. Berezansky 386 NJ Super 84 (App. Div. 2006) Nurse Who Withdre w Blood Can Be Required to Testify in DWI Case. State v. Renshaw 390 NJ Super. 456 (App. Div. 2007) In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A- 11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case. Defendan t Can Contest DWI Blood Lab Reports Hearsay. State v. Kent 391 NJ Super. 352 (App. Div. 2007)
As
1. State m e n t by eye witness not admissible as emerg ency investiga t ion. State in the Interest of J.A. 195 NJ 324 (2008 ) . 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 crossexamination, the admissions of the statements violated J.A.’s Sixth Amendment right to confront the witnesses against him.
1
2. State m e n t to DYFS worker under emerg e ncy is admissible. State v. Buda 195 NJ 278 (200 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. See also EVIDENCE — HEARSAY State v. Coder __ NJ __ (A-28- 08) 5-4-09 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. 2
3. Crawford Hearsay Rule does not apply to Breath alyze r Certification. State v. Sweet 195 NJ 357 (200 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.
3
4 NJ Supreme Court holds new Alcotest DWI breath testing machine results admissible State v. Chun 194 NJ 54 (200 8 ) The following foundational documents, evidencing the good working order of the machine, shall be admitted into evidence in prosecutions based on Alcotest breath testing results: the most recent calibration report, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration; the most recent new standard solution report prior to a defendant’s test; and the certificate of analysis of the 0.10 simulator solution used in a defendant’s control tests. These foundational documents are not “testimonial,” as defined by the United States Supreme Court in Crawford v. Washington and its progeny. Such documents are business records, which do not implicate the Confrontation Clause.
4
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 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 post- conviction 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).
5
6. Five Year Post Conviction Limit can be Relaxed in DWI. State v. Bringhurst 401 NJ Super. 421 (App. Div. 2008 ) 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 uncounseled rendered ten forth a prima its denial was
case, where defendant's prior, conviction was allegedly years earlier, he failed to put facie case for relief Therefore, appropriate.
6
7. 30 year old uncounseled DWI Conviction could not enhance jail. State v. Binkiewicz (App. Div. Decided May 6, 2008 ) A5613- 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
7
8. Police cannot access defendan t ’s Interne t records. State v. Reid 194 NJ 386 (200 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.
8
9. Police do not need a reasonable suspicion before they may access the NCIC datab ase. State v. Sloane 193 NJ 423 (200 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. 9
10. Noise ordinance not preem 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.
10
11. Commercial Vehicle could be searched during routine safety inspection State v. Hewit t 400 NJ Super. 376 (200 8 ) A police officer who makes observa tions during a routine safety inspection of a commercial truck that reasonably lead him to believe it contains a hidden compart m e n t containing contraba nd is not required to obtain a search warran t before undert a king to confirm the existence of the hidden compart m e n t and deter min e its conten ts.
11
12 Appellat e Division Cannot Amend Refusal State m e n t . State v. Spell 142 NJ 514 (20 0 8 ) 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.
12
13. Appellat 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.
13
14. No Plea Bargain of DWI on Appeal. State v. Rastogi 403 NJ Super. 581 (Law Div. Mercer 2008 ) 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. 14
15. School Principal May Search Car on School Grounds if Reasonably Suspect Criminal Activity. State v. Best 403 NJ. Super. 428 (App. Div. 2008 ) 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.
15
16 Police could stop car based on call by daugh t e r that father was 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. 16
17. Passenger Pat dow n during traffic stop permi t t e d if belief gang memb e r is armed and dangerous Arizona v Johnson 129 S.Ct 781 (200 9 ) 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 gang 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 the officer suspected the passenger 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 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.
17
18. Arrest and Search by police based invalid arrest warran t does not suppress drugs & gun found Herring v United States 129 S. Ct. 695 (200 9 ) When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.
18
19 Police did not need to read ministe r Miranda warnings State v. Nyhammer 197 NJ 383 (2009) 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.
19
20 Drifting within a Lane Supports DWI Stop by Cops State v. Woodruff 403 NJ Super 620 (Law Div. Mercer 2008 ) 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
20
21. No sequestra tion of defense exper t in DWI case State v. Popovich 405 NJ Super. 324 (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 permit the expert to watch the trial testimony 21
22. Telephonic search warran ts approved State v. Juan Pena- Flores 198 NJ 6 (200 9 ) 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.
22
23. No search of passenger compar t m e n t of a vehicle incident to a recent occupant's arrest unless it is reasonable to believe that an arreste e might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest Arizona v. Gant 07- 542 4/21/09
23
24. 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 ”
24
25. 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.
25
Proposed Amendment to R. 7:7- 7(f) The Committee was advised that the Office of the Attorney General and a number of municipal prosecutors have begun to make discovery available by computer online. In an effort to accommodate this form of discovery, the Committee recommended an amendment to R. 7:7- 7(f). This amendment will allow the exchange of discovery by the parties through the use of e-mail, publicly available internet or other electronic other means. The Rule also contains three technical amendments which clarify current practice. Proposed New: 7:7- 7(f). Unless otherwise ordered by the judge, the parties may exchange discovery through the use of email, internet or other electronic means. As a result of the Appellate Division decision in State v. Reid , 389 N.J. Super. 563 (App. Div. 2007) in March 2007, the Committee undertook a study of the practice of the issuance of subpoenas in municipal court. In Reid , the municipal court administrator issued a subpoena duces tecum related to an offense over which the court had no trial jurisdiction. Moreover, the return date on the subpoena was established for a date when the municipal court was not in session. The holding of the Appellate Division was later modified and affirmed by the Supreme Court without change to the question related to the improvident issue of the subpoena by the municipal court. State v. Reid, 194 N.J. 386 (2008). In order to provide some degree of uniformity in the process of issuing subpoenas from the municipal courts and with an eye toward accommodating the special needs of municipal court case administration, the Committee initiated a comprehensive revision to R. 7:7- 8. The proposed amendments generally track Rule 1:9- 1 et seq ., but contain specialized provisions that are uniquely applicable to present municipal court practice. Paragraph (a) of proposed R. 7:7- 8 is based upon R. 1:9- 1. The proposed rule specifies that with the exception of investigative subpoenas in DWI cases, the triggering authority for the issuance of a municipal court subpoena is the issuance of process on a complaint. This will assure that the issued subpoena will be based upon an active case within the jurisdiction of the municipal court. 26
In order to ensure uniform practice throughout the state, the form of subpoena will be on a form to be approved by the Administrative Director of the Courts.(2) The proposed new Rule continues the current practice of permitting a subpoena to be prepared and issued by either a judicial officer or by a New Jersey attorney in the name of the municipal court administrator. A pro se defendant would be required to have his or her subpoena prepared and issued by the court administrator. The responsibility for the service of subpoenas would continue to rest with the party seeking the appearance of the witness and not with the court administrator. (3) The current practice authorizing the issuance of subpoenas by law enforcement officers in non- indictable cases would continue as well. The proposed rule would also require that the person who causes the subpoena to be issued to take the necessary steps to alert the court administrator so that a supplemental ATS/ACS notice may be sent to the witness. Fn 2There are three basic forms of subpoena that need to be considered by the Administrative Director: Subpoena Ad Testficandum (Subpoena to Testify under Rule proposed Rule 7:7- 8(b)), Subpoena Duces Tecum (Subpoena to produce documents under proposed Rule 7:7- 8(d)) and the police/witness subpoena issued under the authority of proposed rule 7:7- 8(c). The current form of these subpoenas have not been updated for many years. Fn (3) Court Administrator is a judicial officer who may prepare and issue subpoenas but may not serve them. See State v. Perkins, 219 N.J. Super. 121 (Law Div. 1987); State v. Prickett, 240 N.J. Super. 139 (App. Div. 1990). New Proposed R. 7:7- 8. (a) Issuance. Except as otherwise provided in paragraph (e) (Investigative Subpoenas in Drunk Driving Cases), upon the issuance of process 27
on a complaint within the trial jurisdiction of the municipal court, a subpoena may be issued by a judicial officer, by an attorney in the name of the court administrator or, in cases involving a nonindictable offense, by a law enforcement officer or other authorized person. The subpoena shall be in the form approved by the Administrative Director of the Courts. A person who causes a subpoena to issue shall immediately inform the court administrator of the name and address of the person subject to the subpoena. The court administrator shall then cause a Notice to Appear to be sent by regular mail to the person subject to the subpoena. In cases involving non- indictable offenses, the law enforcement officer may issue subpoenas to testify in the form prescribed by the Administrative Director of the Courts. Courts having jurisdiction over such offenses, the Division of State Police, the Motor Vehicle Commission and any other agency so authorized by the Administrative Director of the Courts may supply subpoena forms to law enforcement officers. (b) Subpoena to Testify. A subpoena to testify shall state the name of the municipal court and the title of the action. It shall contain the appropriate case docket number and shall command each natural person or authorized agent of an entity to whom it is directed to attend and give testimony at a specific time and date when the court will be in session. The subpoena may also specify that the specific time and date to attend court will be established at a later time by the court. If the witness is to testify in an action for the State or for an indigent defendant, the subpoena shall so note and shall contain an order to appear without the prepayment of any witness fee as otherwise required under N.J.S.A. 22A:1- 4. (c) Subpoena to produce documents or electronically stored information. A subpoena may require on the date of the scheduled court appearance, production of books, papers, documents, electronically stored information or other items. The court may enter a supplemental order directing that the items designated in the subpoena be produced in court at a time prior to the scheduled court appearance or at another location. The order of the Court may also specify that the designated items may, upon their production, be inspected by the parties and their attorneys. 28
(d) Investigative Subpoenas in Operating while under the Influence Cases. When the State demonstrates to the court through sworn testimony and/or supporting documentation that there is a reasonable basis to believe that a person has operated a motor vehicle, in violation of N.J.S.A. 39:4- 50 or N.J.S.A. 39:10- 13, a vessel in violation of N.J.S.A. 12:7- 46, or an aircraft in violation of N.J.S.A. 6:1- 18, a municipal court judge with jurisdiction over the municipality where the alleged offense occurred may issue an investigative subpoena directing an authorized agent of a medical facility located in New Jersey to produce medical records related to the presence of alcohol, narcotics, hallucinogens, habit- producing drugs or chemical inhalants in the operator’s body. If no case is pending, the subpoena may be captioned “In the Matter” under investigation. (e) Personal Service. A subpoena may be served at any place within the State of New Jersey by any person 18 or more years of age. Service of a subpoena shall be made by personally delivering a copy to the person named, together with the fee allowed by law, except if the person is a witness in an action for the State or an indigent defendant, the fee shall be paid before leaving the court at the conclusion of the trial by the municipal court administrator as otherwise required by N.J.S.A. 22A:1- 4. After service of a subpoena, the person serving the subpoena shall promptly file a copy of the subpoena and proof of service with the court. (f) Continuing Duty to Appear. A witness who has been personally served with a subpoena shall remain under a continuing obligation to appear until released by the court. (g) Failure to Appear. In the absence of an adequate excuse, any person who fails to obey a personally served subpoena, as evidenced by an executed return of service, is subject to punishment for contempt of court. The Court may issue a warrant for the arrest of the person subject to contempt as authorized by N.J.S.A. 2A:10- 8.
29
(h) Motion to Quash. The Court, on motion made prior to the scheduled court date, may quash or modify a subpoena to testify or a subpoena to produce writings or electronically stored information if compliance would be unreasonable, oppressive or not in compliance with the procedures required under this rule.
30
New Proposed Rule for Laurick Motions R. 7:10- 3. Petition to Obtain Relief from an Enhanced Custodial Term Based on a Prior Conviction (a) On motion of the defendant filed pursuant to requirements of this Rule, a municipal court may grant an order barring the use of a conviction from being utilized to enhance the custodial aspect of a sentence in a subsequent conviction for the same offense. (1) Venue. A petition to obtain relief from an enhanced custodial term based on a prior conviction shall be brought in the court where the current case is pending. (2) Time Limitations. A petition seeking relief under this Rule may be filed at any time. (b) Procedure. A petition seeking relief under this Rule shall be in writing and shall conform to the following requirements. (1) Burden of proof. This application shall be considered civil in nature. The petitioner shall have the burden of proving the facts upon which the claim for relief is based. The burden of proof shall be by a preponderance of the evidence. (2) Notice. An attorney or pro se petitioner filing this petition shall serve a copy, together with all related moving papers, transcripts and exhibits on the municipal prosecutor at the same time the petition is filed with the municipal court. (3) Contents of Petition. The petition shall be certified by defendant and shall set forth with specificity the facts upon which the claim for relief is based, the legal grounds of the complaint asserted. The petition shall include the following information: (A) the date, docket number and contents of the complaint upon which the conviction is based and the municipality where filed; (B) the sentence or judgment complained of, the date it was imposed or entered, and the name of the municipal court judge then presiding; (C) any appellate proceedings brought from the conviction, with copies of the appellate opinions attached; (D) any prior post- conviction relief proceedings relating to the same conviction, including the date and nature of the claim and the date and nature of disposition, and whether an appeal was taken from those proceedings and, if so, the judgment on appeal; (E) the name of counsel, if any, representing defendant in any prior 31
proceeding relating to the conviction, and whether counsel was retained or assigned; and (F) whether and where defendant is presently confined. (G) The petitioner shall arrange for the mailing of a copy of the entire court file by the court administrator from the municipal court where the challenged conviction occurred to the municipal court administrator where the petition is pending. The costs of copying and transferring the file shall be paid by the petitioner. The moving papers in support of such an application shall include, if available, all other records related to the underlying conviction, including, but not limited to, copies of all complaints, applications for assignment of counsel, waiver forms and transcripts of the defendant’s first appearance, entry of guilty plea and all other municipal court proceedings relating to the conviction being challenged. The petitioner shall account for any unavailable records by way of written documentation from the municipal court administrator or the police custodian of records, as the case may be. (H) A separate memorandum of law may be submitted. (c) Amendments . Amendments of the petitions shall be liberally allowed. Assigned counsel may, as a matter of course, serve and file an amended petition within 25 days after assignment. (d) Answer. The judge may permit the prosecutor to make a written or oral response to the petition. (e) Judgment. In making a final determination on a petition, the court shall state separately its findings of fact and conclusions of law and shall thereafter enter an order either granting or denying the relief sought. A final order issued under this section shall be accepted by all other municipal courts. (f) Appeal. Appeals from a denial of post- conviction relief from the effect of a prior conviction shall be combined with any appeal from proceedings involving the repeat offense. Appeals by the State may be taken under R. 3:23- 2(a).
32
Proposed Amend me n t to Guideline 3 of ‘Guidelines for the Opera tion of Plea Agree me n ts in the Municipal Courts of New Jersey’ Prosecutor not required to appear in court on any pleas GUIDELINE 3. Prosecutor’s Responsibilities…….. The prosecutor shall also appear in person to set forth any proposed plea agreement on the record. [ except when the original charge is listed on the Statewide or local Violations Bureau Schedule. In that event, ] However, with the approval of the municipal court judge, in lieu of appearing on the record, the prosecutor may submit to the court a Request to Approve Plea Agreement, on a form approved by the Administrative Director of the Courts, signed by the prosecutor and by the defendant. Nothing in this Guideline shall be construed to limit the court's ability to order the prosecutor to appear at any time during the proceedings.
33