SPRING 2009 MUNICIPAL COURT LAW REVIEW

MUNICIPAL COURT LAW REVIEW SPRING 2009 1. Police could stop car based on call by daughter that father was drunk State v. Amelio 197 NJ 207 (2008)

Based on the report to dispatch by defendant’s seventeen­year­ 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.

2. Passenger Pat down during traffic stop permitted if belief gang member 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 back­seat 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 front­seat 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.

3. Juvenile has no right to counsel during post­complaint interrogation State in the Interest of P.M.P. 404 NJ Super. 69 (App. Div. 2008)

The court concluded a juvenile delinquency complaint, filed at the direction of a county prosecutor's office, is not the substantial equivalent of an indictment such that it initiates a formal adversarial proceeding and triggers a juvenile's right to counsel. The court reversed the trial court's extension of the protections of State v. Sanchez, 129 N.J. 261, 277 (1992) to juvenile proceedings.

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4. Arrest and Search by police based invalid arrest warrant does not suppress drugs & gun found Herring v United States 129 S. Ct. 695 (2009) 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.

5. Constructive possession is decision by trier of fact, not expert State v. Reeds 197 NJ 280 (2009)

Defendant suffered undue prejudice from the evidence in the form of expert testimony opining, in effect, that he constructively possessed the drugs found in the vehicle he was driving. This ultimate­issue testimony usurped the jury’s singular role in the determination of defendant’s guilt and irredeemably tainted the remaining trial proofs, producing an unjust result in defendant’s trial.

6. Four Factors required to withdraw 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.

7. Police did not need to readminister 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 cross­examine the witness on the core accusations in the case. Nyhammer had the opportunity to cross­ examine the child­victim at trial about her out­of­court testimony implicating him in the crime but chose not to do so; therefore, he cannot claim that he was denied his right of confrontation.

8. Drifting within a Lane Supports MV 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 2

statute. N.J.S.A. 39:4­88(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: Muni­Mail 11/24/2008 9. No sequestration of defense expert 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. State v. Lanzel, 253 N.J. Super. 168 (Law Div. 1991) was distinguished.

10 Improper cross­examination by Municipal prosecutor and judge can require retrial before different judge State v. Wang App. Div. 14­2­2508 Unpublished Because the cross­examination of defendant regarding her Nevada driver's license and the lack of proper record keeping at the Therapy Center was improper because the evidence lacked any relevancy to the prostitution charge, and because its use to attack defendant's credibility ran afoul of N.J.R.E. 607, 608, and 404, and the evidence was relied upon by the municipal and Law Division judges in assessing credibility, defendant's conviction for prostitution is reversed and the matter is remanded for retrial before a different municipal court judge. Unpublished Source: Daily Briefing ­ 01/21/2009 11. Alcotest operator must observe defendant for 20 minutes State v Nucifora.

Law Div. Camden Unpublished This important unpublished case held that the Supreme Court in Chun meant exactly what it said when it directed that "the operator must observe the test subject for required 20 minute{s}", that this was not dicta, and that it does not allow for observation by other officers. The appeal was raised in the context of a Chun stayed case and stands for the proposition that if a good faith 20 min issue was raised at the time of a Chun stayed plea, the issue is sufficient to reopen the matter. Source: Jeff Gold, NJSBA 2008 Municipal Court Attorney of the Year 12. Telephonic search warrants approved State v. Juan 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 case­by­case basis with the focus on police safety and the preservation of 3

evidence. The Court also determines that a warrant obtained by telephonic or electronic means is the equivalent of an in­person warrant and does not require proof of exigent circumstances. Also State v. Charles Fuller (A­15­07) Photo p3… NJ State Bar Municipal court section officers 2008­2009 Left to right: Kenneth Vercammen, past chair, Arnold N. Fishman past chair, Damian A. Scialabba past chair, Jeffrey E. Gold chair elect, Stephan D. Williams secretary), Elliot Wiesner, chair, Albert J. Mrozik, Jr Past chair and Newark Prosecutor., Deborah Veach, David Bildner co­ Legislative coordinator All meetings of Municipal Court Section are free to members. Call NJSBA 732­249­5000 PROFESSIONAL OFFICE SPACE IS AVAILABLE IN EDISON LAW OFFICE. Suitable for professional seeking to set up satellite office, or starting a new practice in Middlesex County.

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KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732­572­0500 Upcoming Important Events: March 30 NJ State Bar Mun Ct Section Speaker­ Hon. Spencer Robbins NJ Law Center April 28

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May 13 NJSBA Convention­ Recent Criminal & Municipal Court Cases Seminar ­ Borgata, Atlantic City May 20 Middlesex County Bar­ Installation Dinner, Seabras, Perth Amboy May 23 Spring Lake 5 July 18 Ken’s Summer Blast ­ South Brunswick ­ Saturday Night Index 1. Police could stop car based on call by daughter that father was drunk State v. Amelio 2. 2. Passenger Pat down during traffic stop permitted if belief gang member is armed and dangerous Arizona v Johnson

3. Juvenile has no right to counsel during post­complaint interrogation State in the Interest of P.M.P. 4. Arrest and Search by police based invalid arrest warrant does not suppress drugs & gun found Herring v United States 5. Constructive possession is decision by trier of fact, not expert State v. Reeds 6.

Four Factors required to withdraw guilty plea State v. Slater

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Police did not need to readminister Miranda warnings State v. Nyhammer

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Drifting within a Lane Supports MV Stop by Cops ­ State v. Woodruff 5

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9. No sequestration of defense expert in DWI case State v. Popovich

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10 Improper cross­examination by Municipal prosecutor and judge can require retrial before different judge State v. Wang

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11. Alcotest operator must observe defendant for 20 minutes State v Nucifora.

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12. Telephonic search warrants approved State v. Juan Pena­Flores

NJ State Bar Municipal court section officers 2008­2009 Professional Office Space Available Edison Upcoming important events NJ Municipal Law Review Subscription form p4

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