Mun Cases for ICLE April 19

Top 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, the court recommended that, as an administrative matter, the Motor Vehicle Commission prospectively consider having the standard statement translated into Spanish and perhaps other prevalent foreign languages.

1b State v Kim A-3863- 08T4 3-18- 10 Defendant's conviction for refusal to submit breath samples, N.J.S.A. 39:4- 50.2 and N.J.S.A. 39:4- 50.4a, is affirmed because the State is not required to prove he understood the standard statement read to him in English, State v. Marquez, 408 N.J. Super. 273 (App. Div.), certif. granted, 200 N.J. 476 (2009), and on procedural grounds because defendant failed to move to exclude evidence of his refusal or present evidence that created a material issue as to his ability to understand English.

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 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 1

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.

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 always need to readminis te 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.

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. 39:4- 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.

12. Arrest and Search by police based invalid arrest warran t does not suppress drugs & gun found

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Herring v Unite d States 129 S. Ct. 695 (20 0 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.

12b. State v Handy A-1838- 07T4 04- 12- 10 This appeal required the Court to determine whether evidence found during the search incident to defendant's arrest should have been suppressed because the dispatcher who incorrectly informed the arresting officer that there was an outstanding arrest warrant acted unreasonably under the circumstances, even though the conduct of the arresting officer himself was reasonable.

The warrant at issue, which was ten years old at the time, had the same birth month, but a different birth day and year. The first name on the warrant was a variant spelling of defendant’s first name. The court concluded that suppression is required and, consequently, reversed the conviction based on NJ Constitution.

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. 39:450, 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 case State must provide 20 minute observa tion of driver prior to brea th test by clear and convincing evidence, but arresting officer can testify as part of 20 minutes State v Ugrovics 410 NJ Super. 482 (App. Div. 2009) This appeal concerned the admissibility of the results of an Alcotest. By leave granted, the State appealed from the order of the Law Division suppressing the results of the Alcotest because the arresting officer, rather than the Alcotest operator, was the person who observed defendant during the twenty minutes prior to him taking the test. In reaching this conclusion, the trial court relied on what it characterized as the "procedures" mandated by the Supreme Court in State v. Chun 194 N.J. 54 (2008). The court reversed. This Appellate panel held that the State is only required to establish that the test subject did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the test results for a period of at least

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twenty minutes prior to the administration of the Alcotest. The State can meet this burden by calling any competent witness who can so attest.

15.

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.

16. PTI can be conditione d on a plea to a traffic offense. State v.

Mosner 407 NJ Super. 40 (App. Div. 200 9 ) 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] 17. Miranda Violation cannot be Asserte d by Co- defenda n t . State v.

Baum 199 NJ 407 (20 0 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.

18. 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] 19. 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.

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20 . Three year old’s state m e n ts admissible under tende r years exception to hearsay. State v. Coder 198 NJ 451 (20 0 9 ) 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.

21. Destruction of Video Tape may Permit DWI Defenda n t to Vacate Guilty Plea. State v. Mustaro 411 NJ Super 91 (App. Div. 2009) The court considered defendant's appeal from the denial of a post- sentence motion to vacate his plea of guilty to driving while intoxicated. The motion was predicated on a claim that the state withheld exculpatory evidence, but by the time the motion was filed the evidence — a videotape recorded by the camera in the arresting officer's patrol car — had been destroyed through reuse in accordance with the police department's procedures. Applying State v. Parsons , 341 N.J. Super. 448 (App. Div. 2001), and State v. Marshall , 123 N.J. 1, 107- 09 (1991), the court concluded that defendant failed to establish that he would not have admitted to driving if he had access to the videotape prior to the plea, and the court further concluded that the denial of his motion was fully consistent with a proper application of the principles set forth in State v. Slater , 198 N.J. 145 (2009).

22. DWI Dismissed Under Speedy Trial Wher e More than 360 Day Lapse. State v. Tsetsekas 411 NJ Super 1 (App. Div. 2009) The court reversed the Law Division conviction and required dismissal of the DWI charge due to a violation of defendant's right to a speedy trial. The extensive delay in adjudicating this matter, caused solely by the state's repeated lapses in preparation and the failure to secure its witnesses, infringed on defendant's due process rights.

23. Prior refusal counts for 3 rd DWI State v Ciancaglini 411 NJ Super. 280 (App. Div. 2010) In this appeal from a DWI conviction, after prior separate DWI and refusal convictions, this Appellate panel disagrees with the holding of State v. DiSomma 262 N.J. Super. 375 (App. Div. 1993), and hold that the prior refusal conviction does count toward making this a third offense. The court feels this holding is consistent with a line of cases both before and after DiSomma concluding that a prior DWI conviction counts toward enhancement of the sentence imposed for a refusal conviction. See, e.g., State v. Tekel, 281 N.J. Super. 502 (App. Div. 1995). The court also held that double jeopardy does not bar reinstatement of the sentence originally imposed in the municipal court for a third DWI offense, which was reduced in the Law

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Division to a sentence for a first DWI offense.

24. New trial ordere d where Judge conducte d questioning of defense exper t . State v. O’Brien 200 NJ 520 (2009) Defendant was entitled to face a single adversary, the State. He should not have had to bear the consequences of a judge who appeared to disbelieve him and his expert witness, revealed that disbelief to the jury, and supported a witness adverse to him. Because that conduct was clearly capable of producing an unjust result, a new trial is in order.

25. Refusal does not merge into DWI State v Eckert 410 NJ Super. 389 (App. Div. 2009) A conviction for refusal to submit to a breath examination cannot be merged with a DWI conviction. Such a plea agreement violated applicable merger principles as well as the Court's Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey.

26. OPRA limits copy fees to actual costs Smith v. Hudson County 411 NJ Super 538 (App. Div. 201 0 ) Judge Sabatino wrote: “We must bear in mind the public policies underlying the OPRA statute as a whole. The purpose of OPRA is "'to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Mason v. City of Hoboken , 196 N.J. 51, 64 (2008) (quoting Asbury Park Press v. Ocean County Prosecutor's Office , 374 N.J Super. 312, 329 (Law Div. 2004)). Toward that end, the Legislature declared in OPRA, as "the public policy of this State," that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest . . . [.]" N.J.S.A. 47:1A- 1 (emphasis added). "[Any limitations on the right of access accorded by [the former RKL][,] as amended and supplemented, shall be construed in favor of the public's right of access."

27. No Points on Unsafe

97.2

if More than Five Years betw e e n

Offenses. Patel v. New Jersey Motor Vehicle Commission 200 NJ 413 (2009) The unsafe driving ticket is no points for offense one and two. The 3 rd gives the driver 4 points, unless there is more than 5 years between the 2 nd and 3 rd offense. The Supreme Court held Under N.J.S.A. 39:4- 97.2(e), the exemption provision for assessing motor vehicle penalty points for an unsafe driving offense that occurs more than five years after “the prior offense,” “the prior offense” refers only to the most recent preceding offense based on both a plain reading of the statute and a review of the legislative history.

Thus, the Motor Vehicle Commission correctly imposed motor vehicle points 7

on Patel for having a fourth unsafe driving conviction in 2007, only one year after the date of her prior, third, unsafe driving offense.

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