Winter 2008 Municipal Court Law Review 1. If Suspended for DWI in Another State, Enhanced Penalty for Driving While Suspended. State v. Colley ___ NJ Super. ___ (Decided December 14, 2007). A3347-06T5 A prior conviction in another state for conduct equivalent to that proscribed by N.J.S.A. 39:4-50 subjects the defendant to the enhanced penalty provision set by N.J.S.A. 39:3-40f(2) upon a subsequent conviction in this state. 2. No time limit on appeal until court advises defendant of right to appeal State v. Johnson 396 NJ Super. 133 (App. Div. 2007) In this appeal the court examine the consequences of a sentencing court's failure to notify a defendant of his right to appeal within forty-five days, when the sentence was imposed prior to the New Jersey Supreme Court's opinion in State v. Molina, 187 N.J. 531 (2006). In Molina, the Court made prospective its holding that such a defendant had five years from the date of sentencing to move for leave to appeal as within time. 3. DWI defendant entitled to step down based on uncounseled prior plea. State v Conroy __ NJ Super. __ (App Div decided January 9, 2008) A-2384-06T5 The question presented is whether a defendant, who has had three prior convictions for DWI, was entitled to the benefit of the ten-year step-down provision of N.J.S.A. 39:4-50(a)(3) on a fourth conviction, where the first conviction was entered by way of an uncounseled plea. The court answered the question in the affirmative, determining that when defendant appeared before the Law Division he stood as a third offender, not a fourth offender, for the limited purpose of the trial court imposing a jail sentence under the enhanced sentencing provision of the DWI statute. Laurick continued. 4. Police Can Use An Electronic Tracking Devise to Trace a Stolen Cell Phone. State v. Laboo 396 NJ Super. 97 (App. Div. 2007) Three individual committed a string of armed robberies over the course of a onehour period, taking items that included two cell phones. Approximately thirty hours after the last robbery, police used a tracking device to track one of the stolen cell phones to a three-family home located in a high crime area. Three officers entered the building and used a handheld tracking device to determine the exact apartment. An officer knocked on the apartment door and announced that he was a police officer. The officer then heard a young female yelling and a man's voice saying "shut up, shut up, 5-0," and scurrying inside the apartment. Without obtaining a warrant, the officers forcibly entered the apartment, wherein they found evidence from the robberies.
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The Court reversed the law division's order suppressing the evidence. The search was justified because the exigent circumstances, although police-created, arose as a result of reasonable investigative conduct. The Court held that the police were not required to secure a warrant because a delay presented a real potential danger to the officers and public, under the circumstances. 5. Contractors Must Register With Consumer Affairs. State v. Rowland 396 NJ Super. 126 (App. Div. 2007) The Contractors' Registration Act, N.J.S.A. 56:8-136 to -152, includes provisions under which knowingly engaging in the business of making or selling home improvements without having registered with the Division of Consumer Affairs is a fourth degree crime. Although the Act states that "a person who knowingly violates any of the provisions of this act is guilty of a crime of the fourth degree," the underlined phrase does not mean that the State must prove defendant knew about the Act and its provisions. In short, when used in a statute, the underlined phrase does not make knowledge of the law an element of the crime. 6. Police Should Have Given 2nd Miranda Warnings. State v. Nyhammer 396 NJ Super. 72 (App. Div. 2007) The Court reversed a conviction for aggravated sexual assault on a girl, then nine years old, concluding that each of two rulings constituted reversible error. First, the judge should not have admitted defendant's confession. An investigator called defendant and explained he was conducting an investigation against another man in connection with the abuse of another child as well as the victim in this case. The investigator did not indicate to defendant that the victim in this case had made allegations of abuse by defendants. Defendant went to the police station. The investigator gave defendant the Miranda warnings. After defendant gave a formal statement regarding the incident of abuse by the other man, the investigator told him that the victim had made accusations against defendant as well. Defendant became distraught. Miranda warnings were not given a second time. Defendant confessed. The Court concludes that defendant did not make a knowing and voluntary waiver of his right to remain silent. Therefore, his confession was admissible. Second, the Court concluded that the victim's hearsay videotape, which was the sole substantive evidence proving defendant's conduct, should have been excluded from evidence, pursuant to confrontation clause. The videotaped statement was "testimonial," there was no prior opportunity for defendant to cross-examine the victim, and there was no opportunity for an adequate and meaningful cross-examination at trial because the victim was unresponsive to many questions. At trial, she did not recollect questions going to the heart of the charges. Therefore, the videotape was the sole substantive evidence at trial.
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7. Guilty plea permitted to be withdrawn where defendant not advised of plea consequences State v. J.J. ___ NJ Super. ___ (Decided December 11, 2007) A2777-05T5 When, as part of a guilty plea, defendant is subject to community supervision under Megan's Law, the court must ensure that defendant understands the particular consequences of such supervision. In this case, defendant was not informed that Megan's Law would prevent him from living with his new wife and her child. Therefore, defendant should have been allowed to withdraw his guilty plea and proceed to trial on all the charges contained in the indictments. 8. Car Insurance coverage liberally applied to victim of shooting Livsey v. Mercury Insurance Group 396 NJ Super. 373 (App. Div. 2007) Uninsured motorist benefits are available to a plaintiff in a random, drive-by shooting. 9. Criminal Bias defined by Law Against Discrimination standard, not dictionary definition State v. Dixon 396 NJ Super. 329 (App. Div. 2007) For purposes of the bias intimidation statute, N.J.S.A. 2C:16-1, the term "handicap" should be defined with reference to the Law Against Discrimination, N.J.S.A. 10:5-5q, rather than by using a dictionary definition of the term.
10. Statutes must be strictly construed State v. Moon 396 NJ Super. 109 (App. Div. 2007) This case required the court to consider the elements of endangering an injured victim, N.J.S.A. 2C:12-1.2b(2). The court concludes that the endangering crime does not apply to a person who abandons a corpse. 11. Certain tenants can be evicted when household member charged with drug crime Long Branch Housing Authority vs. Villano 396 NJ Super. 185 (App. Div. 2007) A tenant in public housing that is under the control of a public housing agency may be removed from the leased premises pursuant to N.J.S.A. 2A:18-61.1e(2) when the tenant substantially violates a covenant or agreement pertaining to illegal uses of controlled dangerous substances, provided the covenant or agreement conforms to applicable federal guidelines. Moreover, federal law permits a tenant to be evicted from public housing when a member of the household or guest engages in drugrelated criminal activity in the leased premises, regardless of whether the tenant knew or should have known of the illegal activity. 12. Even closed museum considered public building under 500 feet drug law
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State v. Chambers 396 NJ Super. 259 (App. Div. 2007) Under N.J.S.A. 2C:35-7.1, the crime of possession of a CDS with the intent to distribute is elevated from a third-degree crime to a second-degree crime if the offense is committed within 500 feet of a public building. In this opinion, the court concluded that a museum qualifies as a public building even if it does not maintain regular hours and is only open to the public upon request. 13. Public Defender Covered Under CEPA. Stomel v. City of Camden 192 NJ 137 (2007) Mayor Milan was the policy-maker for the City in respect of Stomel's removal as municipal public defender, and thus the § 1983 claim against the City based on Milan's actions is reinstated. Also, Stomel set forth a prima facie case that, as municipal public defender, he was an "employee" of the City for purposes of advancing his CEPA claim. 14. Malpractice suit based on bad criminal advise should be stayed pending appeal or post conviction proceeding. McKnight v. Office of the Public Defender __ NJ Super. __ (App Div Decided 12/31/2007) A-5527-05T2 In this appeal, the court considered when a plaintiff's malpractice action against his criminal defense attorney accrues and whether -- as held by other jurisdictions -- the accrual date is impacted by whether a plaintiff is actually innocent of or has been exonerated from the underlying criminal charges. Because these additional elements tend to produce unpredictable and undesirable results, the court rejected their inclusion into an accrual standard. However, because the results of post- conviction proceedings may be fatal to or otherwise impact upon the presentation of a criminal malpractice action, the court held that hereafter plaintiffs must commence at the same time, if they have not already done so, post-conviction proceedings in the criminal matter, and that trial courts freely stay criminal malpractice actions until the underlying criminal proceedings reach a logical conclusion. 15. Noise ordinance not preempted by state law State v Krause ___ NJ Super. ___ (App. Div. decided 12-17-07) A-3737-06T5 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. Note- Lexis reports this opinion was withdrawn from at request of Court. 16. Two step police interrogation invalid State v. O’Neill) __ NJ __ NJ Supreme Court (A-79-06) 12-20-07
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As a matter of state law, when Miranda warnings are given after a custodial interrogation has already produced incriminating statements, the admissibility of postwarning statements will turn on whether the warnings functioned effectively in providing the defendant the ability to exercise his state law privilege against selfincrimination. 17. No trial without defendant unless defendant willfully absent State v. Luna __ NJ __ NJ Supreme Court (A-68-06) 12-19-07 It is not possible to infer that defendant knowingly waived his right to be present at trial because the trial court did not conduct an inquiry to determine whether defendant willingly absented himself. For that reason, defendant’s convictions must be reversed. 18. Can't Be Convicted of "Attempt" to Commit a DP. State v. McGrath NJ Super. (App. Div. Decided August 3, 2007) A-3297-05T1. Not Approved For Publication. Conviction of attempting to violate a temporary domestic restraining order reversed and remanded for dismissal of the charge; the defendant was charged with contempt of a domestic violence TRO, which is a disorderly persons offense under N.J.S.A. 2C:29-9b; on appeal, the defendant correctly argued that his conviction had to be reversed because attempting to commit a disorderly persons offense is not itself an offense, and the State acknowledged that the trial court's findings indicated only that the defendant had attempted to violate the TRO. Source: NJL Daily Briefing 08/06/2007. Not Approved For Publication. 19. Suppression of Stop and dismissal of DWI dismissed where no erratic driving State v. Amelio NJ Super. (App. Div. A-1679-06T5, September 21, 2007, not approved for publication. Law Division order following a trial de novo that granted the defendant's motion to suppress evidence that resulted from a stop of his vehicle and that led to his arrest for driving while intoxicated and for refusal to submit to a Breathalyzer test affirmed; the defendant's 17-year-old daughter reported to the police that she was having a verbal dispute with the defendant, that the defendant was "drunk," and that he had left the scene in a vehicle; a police officer on patrol observed a vehicle that matched the description given by the daughter; that vehicle parked on the side of the road and then drove away about five seconds later; the officer then pulled the vehicle over; the Law Division properly concluded that the information given to the police dispatcher and then to the officer did not provide reasonable suspicion that the defendant was driving while intoxicated; there was no evidence that the defendant was operating his vehicle in an erratic manner, and the only evidence offered by the State was the daughter's statement that the defendant was "drunk." Source: NJ Lawyer October 1, 2007 20. No operation in DWI where engine not running
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State v Mize Appellate Division, A-2339-06T5, November 20, 2007, not approved for publication. Conviction following a trial de novo of driving while intoxicated reversed; the police had received several phone calls complaining about the operation of a red pickup truck; while on patrol, a police officer observed a red pickup truck parked about 25 yards into the driveway of a private residence; when he approached the truck, the officer found the defendant "slumped over the steering wheel, with his head on the steering wheel"; the truck's interior dome light was on, the keys were in the ignition, but the engine was not running; there was sufficient evidence to support the trial court's conclusion that the defendant was intoxicated; however, the facts did not support a finding beyond a reasonable doubt that the defendant had operated the truck to the location where it had been found or that he had intended to move the truck prospectively. Source: NJ Lawyer November , 2007
21. New law Reduces penalties for driving while suspended if suspension is for parking ticket or minor offense. In October, 2007 Governor Corzine Signed Legislation which clarifies that a person whose license has been suspended for failure to comply with a time payment order or for failure to respond to or pay a parking judgment is not subject to the same penalties as a person whose license has been suspended for a driving related offense. Under prior law, failure to comply with a time payment order and failure to respond to or pay a parking judgment are codified as serious driving related offenses. Offenders are subject to fines that are not commensurate with the offense. For example, under the current law, a person whose license was suspended twice for failure to pay a parking ticket would be subject to the penalties set forth in N.J.S.A.39:3-40 b. which includes imprisonment for not more than 5 days and a fine of $750. It was the sponsor’s belief that this penalty is not appropriate for an offense such as failure to pay or respond to a parking ticket. The law further clarifies that a person who commits a second offense of driving with a suspended license must spend at least one day imprisoned in a county jail. The bill also makes technical amendments. The New law states: If the violator’s driver’s license to operate a motor vehicle has been suspended pursuant to section 9 of P.L. 1985, c.14 (C.39 :4-139.10) or for failure to comply with a time payment order, the violator shall be subject to a maximum fine of $100 upon proof that the violator has paid all fines and other assessments related to the parking violation that were the subject of the Order of Suspension, or if
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the violator makes sufficient payments to become current with respect to payment obligations under the time payment order. For details on fines & jail, go to www.njlaws.com/traffic_minimum_penalties.htm 22- Major recent changes in Court Rules: -Private prosecutors prohibited - Post conviction motions must be filed within 5 years More details on website www.benotguilty.com 23.
Upcoming events: Middlesex County Bar Association 3rd Annual Awards Dinner
On March 19, 2008, the Middlesex County Bar Association will hold its third annual awards dinner at Sunny Palace Restaurant on Route 18 South in East Brunswick. Awards will be given to bar members in the following areas: Pro Bono; NonLitigation; Civil Trial Practice; Criminal Trial Practice; and Municipal Court Practice. The purpose of the Awards is to recognize attorneys practicing in Middlesex County and adjacent municipalities who devote a significant portion of their law practice to their respective practice areas and exhibit one or more of the following: -
Leadership in the potential candidate’s field of practice; Significant, tangible contributions to the Bar, such as participation in educational panels, Bar committees, etc, pertaining to non-litigation issues; Significant, tangible contributions to the community and/or charitable endeavors; A record promoting participation and involvement in the MCBA and collegiality within the Association; and A reputation for personal and professional integrity.
The evening will commence with a cocktail hour (cash bar) at 6:00 p.m. and dinner will be served at 7:00 p.m. The cost to attend is $35 for MCBA Young Lawyers, $40 for MCBA Members and $45 for all others, in advance. For additional information, contact 732) 828-3433 To reserve online, go to www.mcbalaw.com The Middlesex County Bar Association (MCBA) is a professional association that is committed to serving the Middlesex County legal community and the general public. The MCBA seeks to enhance member satisfaction with the legal profession by providing a variety of services that stimulate professional growth and personal contacts, assist in law office management and provide opportunity for meaningful public service. [If enough space, include blog stuff below……..
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24. New Web Blogs aka LawBlawgs on criminal law
NJ Criminal Law http://njcriminallaw.blogspot.com/ Law Enforcement caselaw http://lawenforcementcaselaw.blogspot.com/ Editor- Michael Rowan, a Law Student at Hofstra Law and High School valedictorian NJ Elder Law http://elder-law.blogspot.com/ Juvenile Justice http://juvenile-justice-codes.blogspot.com/ NJ Traffic Laws http://njtraffic.blogspot.com/ Criminal Articles http://criminalarticle.blogspot.com/ Wills & Estate Administration http://njwills.blogspot.com/ Motor Vehicle Articles http://njmotorvehicle.blogspot.com/ Criminal Statutes and Jury Charges and in New Jersey http://criminal-jury.blogspot.com/ NJ Laws Newsletters by Kenneth Vercammen http://njlaws1.blogspot.com/ NJ Traffic Law & Municipal Court http://traffic-law.blogspot.com/
25. Subscription form to receive mailed newsletter p ___
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26. Email newsletter available p 1 INDEX 1. If Suspended for DWI in Another State, Enhanced Penalty for Driving While Suspended. State v. Colley 2. No time limit on appeal until court advises defendant of right to appeal State v. Johnson 3. DWI defendant entitled to step down based on uncounseled prior plea. State v Conroy 4. Police Can Use An Electronic Tracking Devise to Trace a Stolen Cell Phone. State v. Laboo 5. Contractors Must Register With Consumer Affairs. State v. Rowland 6. Police Should Have Given 2nd Miranda Warnings. State v. Nyhammer 7. Guilty plea permitted to be withdrawn where defendant not advised of plea consequences State v. J.J. 8. Car Insurance coverage liberally applied to victim of shooting Livsey v. Mercury Insurance Group 9. Criminal Bias defined by Law Against Discrimination standard, not dictionary definition State v. Dixon 10. Statutes must be strictly construed State v. Moon 11. Certain tenants can be evicted when household member charged with drug crime Long Branch Housing Authority vs. Villano 12. Even closed museum considered public building under 500 feet drug law State v. Chambers 13. Public Defender Covered Under CEPA. Stomel v. City of Camden 14. Malpractice suit based on bad criminal advise should be stayed pending appeal or post conviction proceeding. McKnight v. Office of the Public Defender
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15. Noise ordinance not preempted by state law State v Krause 16. Two step police interrogation invalid State v. O’Neill) 17. No trial without defendant unless defendant willfully absent State v. Luna 18. Can't Be Convicted of "Attempt" to Commit a DP. State v. McGrath 19. Suppression of Stop and dismissal of DWI dismissed where no erratic driving State v. Amelio 20. No operation in DWI where engine not running State v Mize 21. New law Reduces penalties for driving while suspended if suspension is for parking ticket or minor offense. For details on fines & jail, go to www.njlaws.com/traffic_minimum_penalties.htm 22.- Major recent changes in Court Rules: -Private prosecutors prohibited - Post conviction motions must be filed within 5 years More details on website www.benotguilty.com 23.
Upcoming events: Middlesex County Bar Association 3rd Annual Awards Dinner
24. New Web Blogs aka LawBlawgs on criminal law
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