WINTER MUN CT LAW REVIE

MUNICIPAL COURT LAW REVIEW WINTER 2009 eMac Room 2 November 26, 2008 4:04PM 1. Appellate Division Cannot Amend Refusal Statement. State v. Spell 142 NJ 514 (2008) 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.

2. Appellate 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. 39:4­97.2, 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.

3. Conflict of Interest if Trial Counsel Represents Both Defendant and Another Person Who May Have Committed Offense. State v. Alexander 403 NJ Super. 250 (App. Div. 2008) In this appeal, the court reversed the denial of post­conviction relief because trial counsel's representation of both defendant and another individual, who allegedly participated in crimes with defendant, placed counsel in a per se conflict of interest. The court held that because the conflict arose between the entry of a guilty plea but before sentencing, there was no cause to disturb the plea, but that defendant was entitled to be resentenced following a determination of what might have occurred had defendant sought to cooperate with law enforcement regarding his alleged cohort.

4. Defendant Should be Present in Court and Advised of the Right to 1

Appeal Unless They Waive Appearance. State v. Taimanglo 403 NJ Super.

112 (App. Div. 2008) Part III of the Rules govern municipal appeals in the Law Division. Defendant must be afforded right to be present and allocution unless waived on the record.

He must also be advised of right to appeal and State v. Molina, 187 N.J. 531 (2006) applies in the absence of adherence to R. 3:21­4(h). The conviction in this case is affirmed because the remand conducted pending the appeal permitted defendant to raise all issues in the Law Division and the de novo review cured defects in the municipal court proceedings.

5. D.V. Related Assault Can Be Expunged. In the Matter of the Expungement of the Criminal Records of N.M.H. ___ NJ Super. ___ (Law Div. Decided January 17, 2008) No. 14­3­2048 A person who has pleaded guilty to simple assault is not prevented from having the offense expunged solely on the basis that it constitutes an act of domestic violence.

6. No Plea Bargain of DWI on Appeal. State v. Rastogi ___ NJ Super. ___ (Law Div. Decided October 27, 2008) No. 14­3­2023 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.

7. School Principal May Search Car on School Grounds if Reasonably Suspect Criminal Activity. State v. Best 403 NJ. Super. 428 (App. Div. 2008)

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.

8. Internal Affairs Investigation Can Be Released. Spinks v. Clinton 402 NJ Super. 454 (App. Div. 2008) Three former Township of Clinton police officers appealed from two orders granting summary judgment to defendants, The Township of Clinton and Stephen Clancy, the Police Chief of Clinton. Plaintiffs had pled guilty to falsifying documents concerning their police activities, were admitted into a pre­trial 2

intervention program, resigned their positions as police officers, and stipulated they would not work again in law enforcement in New Jersey. Following this, they sued defendants, alleging retaliation in violation of plaintiffs' civil rights pursuant to 42 U.S.C.A. § 1983, and unlawful termination based upon age in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5­12. After reviewing plaintiffs' contention affirmed the orders.

9. Malicious Prosecution Available Against Bank. Brunson v. Affinity Federal Credit Union 402 NJ Super. 430 (App. Div. 2008) 1. A claim of malicious prosecution may be based on allegations that the person who initiated a criminal prosecution did so recklessly without a reasonable basis.

2. In a claim of malicious prosecution, a grand jury indictment is prima facie evidence of probable cause but may be rebutted with evidence that the facts presented to the grand jury are in dispute.

3. A financial institution and its certified fraud investigator have a duty of care to a non­customer in whose name and upon whose identification the institution opened an account. That duty included the duty to conduct a reasonable investigation before initiating criminal proceedings against the person whose stolen identity was used to open the account. It is for a jury to determine whether the financial institution and the fraud investigator breached their duty of care and that the breach proximately caused plaintiff's injury.

10. Statute of limitations on legal malpractice due not start until defendant receives exoneration McKnight v. Office of the Public Defender ___ NJ ___ (A­109­07) 11­26­08

In a legal malpractice action brought by a criminal defendant against the attorney who represented him or her in a criminal case, the claim does not accrue and the statute of limitations does not begin to run until the criminal defendant receives relief through some form of exoneration.

11. Headlock for 30 seconds sufficient for simple assault State v. Stull __ NJ Super. ___ (App. Div.) A­5097­06T4 11­18­08

Defendant was convicted of simple assault. He contends that the evidence did 3

not permit the trial court to find that he caused "physical pain." N.J.S.A. 2C:11­ 1a; N.J.S.A. 2c:12­2a. Defendant placed and held the victim in a headlock for twenty to thirty seconds, squeezed his neck and yanked and swung him around.

There was no testimony about the victim's pain and he did not sustain bruises or seek or receive treatment. The court concludes that the State met its obligation to prove guilt beyond a reasonable doubt through proof of defendant's conduct and inferences reasonable on the evidence as a whole.

12. Court Cannot Put Burden on Defendant in Traffic Case. State v. Lesmes (2008) 14­2­1504 Unpublished.

Defendant’s conviction for failure to observe a traffic signal entered in a trial de novo before the Law Division is reversed and the matter is remanded because the Law Division judge incorrectly combined the Law Division and the Appellate Division’s roles and applied the incorrect standard of review and held defendant to a burden of proof that he does not have. Source: NJ Law Journal September 1, 2008 p.46 13. Summons Must Contain Specific Statute Charged. State v. Thulin (App. Div. 2008) A­1691­07T4 Unpublished.

Conviction following a trial de novo for refusal to submit to a Breathalyzer test reversed; one of the six summonses issued to the defendant following a single­ vehicle accident described the offense as "refusal to submit to blood" and cited the implied­consent statute, N.J.S.A. 39:4­50.2; however, no summons was issued for failure to submit to a Breathalyzer test; relying on the State Trooper's testimony that he had read the "New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle" to the defendant as required by N.J.S.A. 39:4­50.2(e), the Law Division found the defendant guilty of violating N.J.S.A. 39:4­50.4a; however, the Appellate Division agreed with the defendant that his conviction had to be reversed because the failure to accurately state the charge against which he had to defend violated due process.

Source: NJ Lawyer Daily Briefing November 7, 2008 14. Harassment Requires Purpose to Harass. State v. Otto (App. Div. 2008) A­2502­07T4 Unpublished.

Conviction following a trial de novo of the petty disorderly persons offense of harassment affirmed; the defendant police officer was the subject of an internal investigation that led to his discharge; a female sergeant who had participated in the investigation told the defendant that he was being discharged, and she escorted him to his office to gather his belongings; the defendant first stopped at

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his car, where he retrieved a bottle of green liquid; while cleaning out his desk, the defendant sprinkled green liquid out of the bottle onto one of the sergeant's feet; the sergeant, who was wearing open­toed sandals, began to feel a "burning" or "tingling" sensation, and she washed her foot, told the defendant that she was going to press charges, and took the bottle of green liquid as evidence; the defendant lunged at the sergeant, who backed away from him until she was up against a wall; the Appellate Division rejected the defendant's argument that the State had failed to establish under N.J.S.A. 2C:33­4 the necessary element of purpose to harass and that his only purpose was to retrieve the bottle and not to intimidate or harass the sergeant.

Source: NJ Lawyer Daily Briefing – October 23, 2008 15. Kenneth Vercammen received the Municipal Court Practitioner­of­the­ Year Award at the Middlesex County Bar Association Annual Awards Dinner.

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 non­litigation 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.

Photo 2008 Award Winners (l to r): Michael Schaff (Transactional); Henry Gurshman (Pro Bono); Nicole Albert (Criminal Practice); Ken Vercammen (Municipal Court Practice); Assignment Judge Hon. Travis Francis; and John Gorman (Civil Practice). Not in the picture: Jim Nolan (Criminal Practice) and Kimberly Yonta Aronow (Young Lawyer).

Source: http://www.mcbalaw.com/displaycommon.cfm?an=1&subarticlenbr=52

INDEX 1. Appellate Division Cannot Amend Refusal. State v. Spell.

2. Appellate Division In dicta Says All 3 rd Offense Unsafe Have 4 Points.

Patel v. MVC.

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3. Conflict of Interest if Trial Counsel Represents Both Defendant and Another Person Who May Have Committed Offense. State v. Alexander.

4. Defendant Should be Present in Court and Advised of the Right to Appeal. State v. Taimanglo.

5. D.V. Related Assault Can Be Expunged. In the Matter of the Expungement of the Criminal Records of N.M.H. 6. No Plea Bargain of DWI on Appeal. State v. Rastogi.

7. SCHOOL SEARCH. School Principal May Search Car on School Grounds if Reasonably Suspect Criminal Activity. State v. Best.

8. Internal Affairs Investigation Can Be Released. Spinks v. Clinton.

9. Malicious Prosecution Available Against Bank. Brunson v. Affinity Federal Credit Union.

10. Statute of limitations on legal malpractice due not start until defendant receives exoneration McKnight v. Office of the Public Defender 11. Headlock for 30 seconds sufficient for simple assault State v. Stull.

12. Court Cannot Put Burden on Defendant in Traffic Case. State v. Lesmes.

13. Summons Must Contain Specific Statute Charged. State v. Thulin 14. Harassment Requires Purpose to Harass. State v. Otto 15. Kenneth Vercammen received the Municipal Court Practitioner­of­the­ Year Award at the Middlesex County Bar Association Annual Awards Dinner.

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