temp Top 25 Cases affecting Municipal Court for NJ Lawyer Magazine

Top 25 Cases affecting Municipal Court for NJ Lawyer Magazine No margins…….

Revised 8/8/2010

By Kenneth Vercammen, Esq.

No discussion of recent Municipal Court caselaw would be complete without first mentioning the most important case in the past 25 years- State v. Chun 194 NJ 54 (2008). Here the NJ Supreme Court held, subject to certain conditions, the Alcotest breath testing machine is scientifically reliable and that its results are admissible in drunk driving prosecutions. Since Chun is analyzed in other articles in the NJ Lawyer Magazine, the following are the top cases recently decided.

Refusal 1. State v. Marquez____ NJ_____ (2010) (A-35-09) 7/12/10

In this case involving a conviction for refusing to submit to a chemical breath test, the Court holds that New Jersey’s implied consent law, N.J.S.A. 39:4-50.2, and refusal law, N.J.S.A. 39:4-50.4a, require proof that an officer requested the motorist to submit to a chemical breath test and informed the person of the consequences of refusing to do so. The statement used to explain to motorists the consequences of refusal must be given in a language the person speaks or understands. Because defendant German Marquez was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is reversed.

Refusal 2 State v. Schmidt_____ NJ Super._____ (App. Div. 2010) A-2237-08T4 07/01/10

In this opinion the court hold that (1) the police are required to comply with N.J.S.A. 39:4-50.2(e) by reading the standard language concerning the consequences of a refusal to take an Alcotest (part two of the Standard Statement) when a defendant unequivocally agrees to submit to an Alcotest but then fails without reasonable excuse to produce a valid sample and (2) the police have the discretion to discontinue the Alcotest and charge the arrestee with refusal without affording the arrestee the maximum eleven attempts that the Alcotest machine permits.

Sentencing 3. Judge Can Suspend DL for Traffic Offense. State v.

Moran______ NJ_______ (2010) (A-55-09) 7/13/10

The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law. To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges

Search 4. 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 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.

Sentencing 5. 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.

Search 6. Police did not always 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 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.

DWI 7. No sequestration of defense expert 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 permit the expert to watch the trial testimony.

Search 8. Car search requires exigent circumstances; No automatic auto exception; Telephonic search warrants approved 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.

Search 9. Police cannot search car passenger compartment if occupant already arrested. Arizona v. Gant 129 S. Ct. 1710 (2009) 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.

Trial 10. US Supreme Court Rules Lab Report Not Admissible in Criminal Case. Melendez-Diaz v. Mass 129 S.Ct. 2527 (2009) 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.

Search 11 School Principal can search vehicle on school grounds.

State v. Best 201 NJ 100 (2010)

A school administrator need only satisfy the lesser reasonable grounds standard rather than the probable cause standard to search a student’s vehicle parked on school property

Search 12. Error by police dispatcher in invalid arrest warrant requires suppression of evidence under NJ Constitution. State v. Handy 412 NJ Super. 492 (App. Div. 2010)

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.

Sentencing 13 Defense counsel must advise criminal of deportation consequences. Padilla v. Kentucky 130 S. Ct. 1473 (2010)

Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faced deportation after pleading guilty to drugdistribution charges in Kentucky. In post conviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice The US Supreme Court held because counsel must inform a client whether his plea carries a risk of deportation, Padilla has

sufficiently alleged that his counsel was constitutionally deficient.

DWI 14. In DWI case State must provide 20 minute observation of driver prior to breath 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 twenty minutes prior to the administration of the Alcotest. The State can meet this burden by calling any competent witness who can so attest.

Refusal 15. 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 “quasi-public area" for purposes of the statute.

Search 16. Passengers can be ordered out if belief of danger. State v.

Mai__ NJ___ (2010) (A-98-09)

The officers presented sufficient facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable

officer in securing the scene in a more effective manner by ordering the passenger to exit the car. Those same circumstances authorize a police officer to open a vehicle door as part of ordering a passenger to exit. Thus, the seizure of the weapon was proper under the plain view doctrine, and the seizure of the holster and loaded magazine from the passenger was lawful as the fruits of a proper search incident to an arrest.

Miranda 17. Miranda Violation cannot be Asserted by Co-defendant.

State v. Baum 199 NJ 407 (2009) 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.

Search 18. 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]

Search 19. Police cannot search home without warrant. State v.

Jefferson__ NJ Super.____ (App. Div. 2010) A-1945-06T4 (05-21-10) (1) In the absence of a warrant or a recognized exception from the Fourth Amendment's warrant requirement, the police could not lawfully enter defendant's home to conduct a Terry type detention and investigation of defendant.

(2) A police officer's wedging herself in the doorway to prevent defendant from closing his front door was entry into the home.

(3) The police failed to show either "hot pursuit" exigent circumstances or a community caretaking exception from the warrant requirement.

(4) Although the police entry was unlawful, defendant had no right to resist physically, and the search of his person incident to arrest was lawful.

(5) Consent to search defendant's apartment, given by defendant's wife, was tainted by the unconstitutional police conduct and was not shown to be voluntary.

Miranda 20. Defendant must invoke right to remain silent. Berghuis v.

Thompkins___ S. Ct.____ (2010) June 01, 2010 No. 08-1470

Defendant Thompkins' silence during the interrogation did not invoke his right to remain silent. A suspect's Miranda right to counsel must be invoked "unambiguously." Davis v. United States, 512 U.S. 452, 459.

If the accused makes an "ambiguous or equivocal" statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused's intent, id., at 461-462. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that "avoid[s] difficulties of proof and ... provide[s] guidance to officers" on how to proceed in the face of ambiguity. Davis, supra, at 458-459. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither.

DWI 21. Destruction of Video Tape may Permit DWI Defendant 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 postsentence 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).

DWI 22. DWI Dismissed Under Speedy Trial Where 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.

Refusal 23. Prior refusal counts for 3rd DWI State v Ciancaglini 411 NJ Super. 280 (App. Div. 2010) cert granted 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 Division

to a sentence for a first DWI offense.

Sentencing 24 No Points on Unsafe 97.2 if More than Five Years between 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 3rd gives the driver 4 points, unless there is more than 5 years between the 2nd and 3rd 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 on Patel for having a fourth unsafe driving conviction in 2007, only one year after the date of her prior, third, unsafe driving offense.

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.

KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 website: www.njlaws.com