Major Mun Cases for 10-17 BIG PRINTseminar

1. State m e n t by eye witness not admissible as emerg ency investiga tion. State in the Interest of J.A. 195 NJ 324 (200 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.

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2. State m e n t to DYFS worker under emergency 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.

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3. Crawford Hearsay Rule does not apply to Breathalyzer 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.

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4 Judge Can Suspend DL for Traffic Offense.

State v. Moran 408 NJ Super. 412 (App Div. 2009 ) 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.

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5.

Postconviction relief (PCR) Motion should be filed in the municipal court in which the prior uncounseled conviction occurred.

State v. Schade w al d 400 NJ Super. 350( 2 0 0 8 ) 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, (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).

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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 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.

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7. 30 year old uncounseled DWI Conviction could not enhance jail.

State v. Binkiewicz (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.

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8. Refusal Stands Even if Driver Does Not Understan d English.

State v. Marquez 408 NJ Super.

273 (App. Div. 2009 ) 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, the court recommends that, as an administrative matter, the Motor Vehicle Commission prospectively consider having the standard statement translated into Spanish and perhaps other prevalent foreign languages.

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9. US Suprem e Court Rules Lab Report Not Admissible in Criminal Case.

Melendez- Diaz v. Mass 129 S.Ct. 2527 (200 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.

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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.

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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 observations during a routine safety inspection of a commercial truck that reasonably lead him to believe it contains a hidden compartment containing contraband is not required to obtain a search warrant before undertaking to confirm the existence of the hidden compartment and determine its contents.

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12 Appellat e Division Cannot Amend Refusal State m e n t .

State v. Spell 142 NJ 514 (200 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.

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13. Appellat e Division in dicta Says All 3 rd Offense Unsafe Have 4 Points. Patel v. MVC 403 NJ Super. 373 (App. Div. 2008 ) 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.

Cert granted.

Oral argument held

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14. No Plea Bargain of DWI on Appeal. State v. Rastogi 403 NJ Super.

581 (Law Div. Decided October 27, 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.

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15.

School Principal May Search Car on School Grounds if Reasonably Suspect Criminal Activity.

State v. Best 403 NJ. Super.

428 (App. Div. 2008 ) [cert granted] 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.

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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.

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17.

Passenger Pat down during traffic stop permi t t e d if belief gang memb e r is armed and dangerous 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.

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18 Four Factors required to withdra 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.

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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.

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.

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20 Drifting within a Lane Supports 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.

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21.

No sequestra tion of defense exper t in DWI case State v. Popovich 405 NJ Super. 392 (App. Div. 2009) Defendant's conviction was 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.

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22.

Car search requires exigen t circumsta nces; No autom a tic auto exception; Telephonic search warran ts approved State v. Pena- Flores 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.

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23 Police cannot search car passenger compar t m e n t if occupant already arrested.

Arizona v. Gant 129 S. Ct. 171 0 (200 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.

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24. Constructive possession is decision by trier of fact, not expert 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 �

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25 Rebut t a bl e presump tion a 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. 39:4- 125 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 assigned counsel there.

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26. 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 )

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27. Six- month Alcotest inspection does not apply until after March 17, 2008.

State v. Pollock 407 NJ Super.

100 (App. Div. 2009 ) 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.

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28 In DWI Alcotest, State Must Prove Defenda n t was Observed for 20 Minutes 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.

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29. Law Division Judge Says that Entire Judge King Alcotest Report was not Adopted by Suprem e Court. State v.

Coppola ___ NJ Super.___ Law Div. Camden Cty. 14- 34513 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). The court found 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 Trial 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 29

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

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30 Condo Parking Garage is Quasi- public for Refusal Violation.

State v. Bertrand 408 NJ Super. 584 (App. Div. 2009 ) 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 “quasipublic area" for purposes of the statute.

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31 PTI can be conditioned on a plea to a traffic offense.

State v. Mosner 407 NJ Super. 40 (App. Div. 2009 ) 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 imprisonment where the defendant's attitude would render pretrial intervention ineffective. [Despite PTI guidelines that prohibit guilty plea as a condition of PTI]

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32. Miranda Violation cannot be Asserted by Co- defendan t .

State v. Baum 199 NJ 407 (200 9 ) 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.

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33. Mirror Obstruction Should Obstruct Driver’s View for Violation.

State v. Barrow 408 NJ Super.

509 (App. Div. 2009 ) 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]

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34. Warran tl ess Search of house to Check on Unatt e n d e d Child Permit t e d Under Communi ty Caretaking. State v.

Bogan 200 NJ 61 (200 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.

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35. Idling while drunk is not DWI. State v. Putz (App. Div.) decided 5/26/ 0 9 Docket 05- 23929 Unpublished Defendant appealed his conviction of driving under the influence of alcohol. The arresting officer observed and approached defendant's truck, in which he was sleeping, that was parked with the engine running in a turnaround on private property.

Because the record does not support a finding beyond a reasonable doubt that defendant intended to operate his vehicle at the time of his arrest, the appellate panel reversed. Source: N.J.L.J. Daily Briefing - 05/2 7 / 2 0 0 9

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