Thursday, October 25, 2012
OUT OF STATE DWI CONVICTION
LICENSE SUSPENSION 05-2-8058 Foehner v. New Jersey Motor Vehicle Commission, App. Div. (per curiam) (5 pp.) Appellant Robert Foehner appeals from the Motor Vehicle Commission's (MVC) denial of an administrative hearing before imposing a 3,650-day suspension of his driver's license due to a fourth conviction for an alcohol-related offense. The MVC asserts that appellant was convicted of his first DUI on May 28, 1986, his second on November 2, 1990, his third on December 19, 1992, and the fourth on September 21, 2011. The first three offenses occurred in New Jersey; the fourth occurred in Arizona. On appeal, appellant notes that the driving history provided with the notice of suspension contained only one prior alcohol-related motor vehicle offense dating back to December 19, 1992. He argues that, as a matter of procedural due process, he is entitled to an agency hearing to evaluate the legal and factual bases for the imposition of a 3,650-day suspension. The appellate panel disagrees and affirms the suspension. Appellant does not contest that he has been convicted of DUI on four occasions, nor does he raise any legal issues to be addressed by the MVC. Rather, appellant merely contends that the MVC did not provide him with proof of all four of his DUI convictions when it initially issued the suspension notice. Since no disputed issues of material fact existed, and no legal issues were raised, no evidentiary hearing was required before the mandatory suspension was imposed.
Posted by NJ DWI Lawyer, Jeffrey Hark.
Saturday, August 4, 2012
The effect of prior settlements on “Buyer’s Remorse” Malpractice Cases:
Submitted by: Professional License Defense Attorney, Jeffrey Hark.
Under New Jersey law, the existence of a settlement does not preclude a defendant from seeking malpractice damages against negligent attorneys involved in or prior to the negations of that settlement. Ziegelheim v. Apollo, 128 N.J. 250, 265 (1992). Indeed, plaintiff need not make efforts to repudiate the settlement in order to prevail on such a malpractice claim, especially when the chances of success of that repudiation are slim. Guido v. Duane Morris, LLP, 202 N.J. 79, 96 (2010). A settlement will only preclude a malpractice action in those rare exceptions wherein the plaintiff recognizes that the settlement was fair and adequate and the settlement effectively “cured” the alleged malpractice of the defendant. Puder v. Buechel, 183 N.J. 428, 445 (2005); Gere v. Louis, 209 N.J. 486, 504-05 (2012); Guido, 202 N.J. at 93.
The first major case to deal with the question of whether a settlement barred later legal malpractice actions in New Jersey was Ziegelheim v. Apollo, 128 N.J. 250 (1992). In Ziegelheim, the Court recognized
that a party received a settlement that was “fair and equitable” does not mean necessarily that the party’s attorney was competent or that the party would not have received a more favorable settlement had the party’s incompetent attorney been competent.
Id. at 265. In Ziegelheim, the plaintiff argued that her divorce attorney had, in the course of pursuing her divorce, failed both to discover substantial hidden marital assets and by delaying in finalizing the divorce agreement. Id. at 266. Plaintiff in that case also argued that the settlement that she had approved differed considerably from the version read to the trial court and that her lawyer had failed to present to her the settlement in writing in advance so that she could properly review it. Id. The Court therefore held that Ziegelheim was not precluded from pursuing her malpractice claim simply because a “fair and equitable” settlement had been reached. Id. at 267. In so doing, however, the Court noted that their intent was not to open wide the door to malpractice suits to all parties dissatisfied with their settlements, holding that in any future buyer’s remorse cases the plaintiff must “allege particular facts in support of their claims of attorney incompetence and may not litigate complaints containing mere generalized assertions of malpractice.” Id.
The Court clearly established the boundaries of the Ziebling holding in Puder v. Buechel, 183 N.J. 428 (2005). In Puder, the plaintiff, Buechel, was the wife of a wealthy doctor holding several patents. Id. at 431. After her original attorney, Puder, negotiated a settlement but before the settlement was finalized in writing, Buechel approached another attorney who informed her that the settlement was “ridiculously inadequate.” Id. at 432. As such, Buechel then fired Puder and hired other counsel to pursue her divorce claims. While the trial court was in the process of determining whether the oral settlement agreement was binding, Puder sued Buechel for back fees while Buechel countersued Puder alleging malpractice in the production of the original settlement. Id. Buechel moved to have the claims against Puder stayed until the outcome of the divorce action as Buechel’s success in the marital action would “render moot” her claims against Puder (as the original settlement would not be binding). Id. at 433.
Before the trial court reached its ruling on the settlement issue, however, Buechel entered into a second settlement, only slightly more favorable to her than the first, with her husband. During the colloquy surrounding this settlement, Buechel made clear that she was only accepting this settlement based on the perceived fear that if the trial court found her first settlement binding she would receive less than the newly settled amount and on the understanding that the new settlement would not preclude her malpractice claim. Id. at 434-35. The trial court in the malpractice action, however, granted Puder summary judgment on the malpractice claim.
In considering these facts, the Court held that Buechel’s malpractice claim was barred by the new settlement. The Court noted that in her appellate brief, Buechel had acknowledged that the new settlement was acceptable and a fair compromise into which she entered voluntarilly. Id. at 439. Effectively, the Court held that Buechel’s testimony at trial that she had received a fair settlement amounted to the second settlement making whole any deficiency that existed in the original decision. Id. at 445. Indeed, the Court argued that it would be unfair to Puder to allow the malpractice action after Buechel’s recognition that she had received a fair settlement and her prior recognition that a victory in the divorce action would “render moot” her malpractice action. Id.
The Court further refined the doctrine in Guido v. Duane Morris LLP, 202 N.J. 79 (2010). In Guido, plaintiff was the majority shareholder and chairman of a cargo company who had sued the corporation over concerns he had with corporate governance. Id. at 83. On two separate, successive occasions, the matter was referred to mediation and eventually settled in a manner that placed constraints on the voting rights of Guido’s stock. Id. at 84. Plaintiff had earlier been warned by counsel that such a settlement could be disastrous for the value of his stock. Id. at 83. During the colloquy surrounding the settlement, Guido and his wife admitted to understanding the settlement and agreed to be bound by it. Two years afterwards, Guido then sued Duane Morris for failure to properly advice him of the effects that the settlement would have on the share price of his stock, which equated to malpractice. Id. at 86. Guido made no attempts prior to the malpractice suit to repudiate the settlement (which the plaintiff’s in Puder and Ziegelheim had done). Id.
In considering the case, the Court clearly held that Ziegelheim represents the standards under which malpractice claims against attorneys who counseled a settlement. Id. at 93. Puder, the Court held, instead represents “a limited exception to the Ziegelheim standard” based on fairness and public policy concerns based upon that plaintiff’s statements regarding the acceptability and fairness of her settlement. Id. As Guido had not made any statements to the trial court that he was satisfied with the settlement that had been negotiated, nor that the settlement was fair or adequate, Puder did not preclude Guido’s claims against Duane Morris regardless of his “failure” to repudiate the settlement. Id. at 95. “Although whether a malpractice plaintiff in fact has sought to vacate a prior settlement may be a relevant factor, the failure to do so cannot be, in and of itself, dispositive.” Id. at 96 (internal citations omitted). In fact, the Court recognized that as there was no reasonable expectation of success on a motion to set aside the settlement, Guido was not required to perform the useless act of attempted repudiation. Id. Ultimately, the Court held that neither the existence of a settlement nor that plaintiff had not attempted repudiation would serve as a bar to a well founded malpractice suit. Id.
In Gere v. Louis, the Court’s most recent clarification of the case law regarding “buyer’s remorse” malpractice cases, the existence of a settlement did not preclude a malpractice action against plaintiff’s original, negligent counsel. 209 N.J. 486 (2012). Even though the plaintiff in that case recognized that the settlement she received was “fair,” “reasonable,” and “the best she could do,” the Court recognized that those statements had to be tempered by the plaintiff’s assertion, during the settlement and beyond, that her original counsel’s failure to conduct discovery had hampered her successor attorney’s ability to establish her claims. Id. at 496, 505. Unlike the defendant in Puder, Gere’s final settlement did not cure the deficiencies created by the actions of her prior counsel. Id. at 504-05. Because Gere’s original attorney’s actions had left her in a situation that could not be cured by later counsel’s efforts, the Court held that the existence of a settlement, absent clear evidence that the settlement had cured the ills of the first attorney’s failings, did not preclude a suit for legal malpractice. Id. at 505.
Under New Jersey law, the existence of a settlement does not preclude a defendant from seeking malpractice damages against negligent attorneys involved in or prior to the negations of that settlement. Ziegelheim v. Apollo, 128 N.J. 250, 265 (1992). Indeed, plaintiff need not make efforts to repudiate the settlement in order to prevail on such a malpractice claim, especially when the chances of success of that repudiation are slim. Guido v. Duane Morris, LLP, 202 N.J. 79, 96 (2010). A settlement will only preclude a malpractice action in those rare exceptions wherein the plaintiff recognizes that the settlement was fair and adequate and the settlement effectively “cured” the alleged malpractice of the defendant. Puder v. Buechel, 183 N.J. 428, 445 (2005); Gere v. Louis, 209 N.J. 486, 504-05 (2012); Guido, 202 N.J. at 93.
The first major case to deal with the question of whether a settlement barred later legal malpractice actions in New Jersey was Ziegelheim v. Apollo, 128 N.J. 250 (1992). In Ziegelheim, the Court recognized
that a party received a settlement that was “fair and equitable” does not mean necessarily that the party’s attorney was competent or that the party would not have received a more favorable settlement had the party’s incompetent attorney been competent.
Id. at 265. In Ziegelheim, the plaintiff argued that her divorce attorney had, in the course of pursuing her divorce, failed both to discover substantial hidden marital assets and by delaying in finalizing the divorce agreement. Id. at 266. Plaintiff in that case also argued that the settlement that she had approved differed considerably from the version read to the trial court and that her lawyer had failed to present to her the settlement in writing in advance so that she could properly review it. Id. The Court therefore held that Ziegelheim was not precluded from pursuing her malpractice claim simply because a “fair and equitable” settlement had been reached. Id. at 267. In so doing, however, the Court noted that their intent was not to open wide the door to malpractice suits to all parties dissatisfied with their settlements, holding that in any future buyer’s remorse cases the plaintiff must “allege particular facts in support of their claims of attorney incompetence and may not litigate complaints containing mere generalized assertions of malpractice.” Id.
The Court clearly established the boundaries of the Ziebling holding in Puder v. Buechel, 183 N.J. 428 (2005). In Puder, the plaintiff, Buechel, was the wife of a wealthy doctor holding several patents. Id. at 431. After her original attorney, Puder, negotiated a settlement but before the settlement was finalized in writing, Buechel approached another attorney who informed her that the settlement was “ridiculously inadequate.” Id. at 432. As such, Buechel then fired Puder and hired other counsel to pursue her divorce claims. While the trial court was in the process of determining whether the oral settlement agreement was binding, Puder sued Buechel for back fees while Buechel countersued Puder alleging malpractice in the production of the original settlement. Id. Buechel moved to have the claims against Puder stayed until the outcome of the divorce action as Buechel’s success in the marital action would “render moot” her claims against Puder (as the original settlement would not be binding). Id. at 433.
Before the trial court reached its ruling on the settlement issue, however, Buechel entered into a second settlement, only slightly more favorable to her than the first, with her husband. During the colloquy surrounding this settlement, Buechel made clear that she was only accepting this settlement based on the perceived fear that if the trial court found her first settlement binding she would receive less than the newly settled amount and on the understanding that the new settlement would not preclude her malpractice claim. Id. at 434-35. The trial court in the malpractice action, however, granted Puder summary judgment on the malpractice claim.
In considering these facts, the Court held that Buechel’s malpractice claim was barred by the new settlement. The Court noted that in her appellate brief, Buechel had acknowledged that the new settlement was acceptable and a fair compromise into which she entered voluntarilly. Id. at 439. Effectively, the Court held that Buechel’s testimony at trial that she had received a fair settlement amounted to the second settlement making whole any deficiency that existed in the original decision. Id. at 445. Indeed, the Court argued that it would be unfair to Puder to allow the malpractice action after Buechel’s recognition that she had received a fair settlement and her prior recognition that a victory in the divorce action would “render moot” her malpractice action. Id.
The Court further refined the doctrine in Guido v. Duane Morris LLP, 202 N.J. 79 (2010). In Guido, plaintiff was the majority shareholder and chairman of a cargo company who had sued the corporation over concerns he had with corporate governance. Id. at 83. On two separate, successive occasions, the matter was referred to mediation and eventually settled in a manner that placed constraints on the voting rights of Guido’s stock. Id. at 84. Plaintiff had earlier been warned by counsel that such a settlement could be disastrous for the value of his stock. Id. at 83. During the colloquy surrounding the settlement, Guido and his wife admitted to understanding the settlement and agreed to be bound by it. Two years afterwards, Guido then sued Duane Morris for failure to properly advice him of the effects that the settlement would have on the share price of his stock, which equated to malpractice. Id. at 86. Guido made no attempts prior to the malpractice suit to repudiate the settlement (which the plaintiff’s in Puder and Ziegelheim had done). Id.
In considering the case, the Court clearly held that Ziegelheim represents the standards under which malpractice claims against attorneys who counseled a settlement. Id. at 93. Puder, the Court held, instead represents “a limited exception to the Ziegelheim standard” based on fairness and public policy concerns based upon that plaintiff’s statements regarding the acceptability and fairness of her settlement. Id. As Guido had not made any statements to the trial court that he was satisfied with the settlement that had been negotiated, nor that the settlement was fair or adequate, Puder did not preclude Guido’s claims against Duane Morris regardless of his “failure” to repudiate the settlement. Id. at 95. “Although whether a malpractice plaintiff in fact has sought to vacate a prior settlement may be a relevant factor, the failure to do so cannot be, in and of itself, dispositive.” Id. at 96 (internal citations omitted). In fact, the Court recognized that as there was no reasonable expectation of success on a motion to set aside the settlement, Guido was not required to perform the useless act of attempted repudiation. Id. Ultimately, the Court held that neither the existence of a settlement nor that plaintiff had not attempted repudiation would serve as a bar to a well founded malpractice suit. Id.
In Gere v. Louis, the Court’s most recent clarification of the case law regarding “buyer’s remorse” malpractice cases, the existence of a settlement did not preclude a malpractice action against plaintiff’s original, negligent counsel. 209 N.J. 486 (2012). Even though the plaintiff in that case recognized that the settlement she received was “fair,” “reasonable,” and “the best she could do,” the Court recognized that those statements had to be tempered by the plaintiff’s assertion, during the settlement and beyond, that her original counsel’s failure to conduct discovery had hampered her successor attorney’s ability to establish her claims. Id. at 496, 505. Unlike the defendant in Puder, Gere’s final settlement did not cure the deficiencies created by the actions of her prior counsel. Id. at 504-05. Because Gere’s original attorney’s actions had left her in a situation that could not be cured by later counsel’s efforts, the Court held that the existence of a settlement, absent clear evidence that the settlement had cured the ills of the first attorney’s failings, did not preclude a suit for legal malpractice. Id. at 505.
State v. McDonald - Motor Vehicle Accident within 1,000 Feet of a School
Submitted by: Vehicle Accident Attorney, Jeffrey Hark.
In its recent decision in State v. McDonald, A-118-10, N.J. (July 23, 2012), the New Jersey Supreme Court clearly annunciated the standards for determining whether a motor vehicle accident occurred within 1000 feet of a school for the purposes of N.J.S.A. 2C:12-1(c)(3)(a) (the DWI assault by auto statute). The factual background of McDonald is as follows. At 2:18 a.m. on January 14, 2007McDonald struck and severely injured a pedestrian outside of the Tropicana Casino in Atlantic City, NJ. McDonald, Slip. Op. at 5. Following the accident, police determined that McDonald had been driving in excess of the speed limit and had a blood alcohol concentration of .19. Id. Police also determined that McDonald’s NJ license had been suspended since 1994, and his out of state license had expired prior to the accident. Id.
The central fact to this appeal, however, is that the accident occurred within two blocks of a property owned by the Our Lady Star of The Sea Church. Id. That property, approximately a single square block in size, contains not only a parish church, but also a parochial elementary school. Id. The Court also noted that there was no lease agreement between the school and the church governing the use of the church owned land by the school. Id. at 6.The accident occurred within 1000 feet of the church property, but 1048 feet from the nearest corner of the school parking lot. Id. at 25.
Defendant was arrested and indicted for second-degree assault by auto in a school zone, N.J.S.A. 2C:12-1(c)(3)(a). Id. Defendant was also issued summonses for DWI, driving with a suspended license, DWI in a school zone, reckless driving, careless driving due to speed, and unlicensed driving. Id. On May 7, 2007, McDonald requested bail so that he may discuss his case with a new counsel. Id. While still represented by original counsel, however, McDonald entered a plea agreement on May 21, 2007. Id. Under the agreement, defendant pled guilty to second-degree assault by auto in a school zone, DWI, and driving with a suspended license in exchange for a sentence as if he had pled to a third-degree offense with a recommended sentence of three years in state prison. Id.
During his plea hearing, defendant acknowledged that he was guilty of driving a vehicle recklessly while intoxicated and also within a thousand feet of school property which caused serious bodily injury to the pedestrian involved. Id. at 7. Upon being asked if he disputed that his offense occurred within a thousand feet of the parochial school, the defendant stated that “[he] didn’t see it, but I might have missed it, okay.” Id. at 7.
On October 19, 2007, McDonald moved to withdraw his guilty plea under State v. Slater, contending that his former attorney had dismissed his concerns over the distance of the accident from the school and had not adequately determined the exact distance. As such, McDonald argued that the distance was in excess of 1000 feet from the actual school grounds (as opposed to the grounds of the church) and gave him a colorable claim of innocence. Id. at 8.The trial court rejected this argument, arguing that defendant’s motion was nothing more than “buyer’s remorse” as to a proper plea. Id. The defendant appealed, arguing points including that the accident was more than 1000 feet from actual school grounds. Id. at 9. The appellate division affirmed the trial court’s finding, corrected some sentencing issues, and merged the DWI conviction into the assault by auto conviction. McDonald appealed and certification was granted. Id. at 10.
Under Slater, a court must consider whether the defendant has asserted a colorable claim of innocence, the nature and strength of defendant’s reason for withdrawing his plea, the existence of a plea bargain, and whether withdrawal would prejudice the state in determining if a plea may be withdrawn. The Court held that McDonald could assert no colorable claim to innocence and as such the defendant’s plea was not subject to withdrawal under the Slater test. The Court, in interpreting the meaning of the “within 1000 feet of a school” language of N.J.S.A. 2C:12-1(c)(3)(a) looked both to the case law and legislative history of that statute and that of N.J.S.A. 2C:35-7, which governs controlled dangerous substance offenses in school zones.
Under the statute, assault by auto is a second degree when the driver causes serious iunjury, while intoxicated and “on any school property used for school purposes which is owned by or leased to any elementary school or school board, or within 1,000 feet of such school property.” The statute precludes a defendant from claiming that he was unaware of being within that zone or that no juveniles were present at the time as a defense to the charges. Id. at 15. The Court, in interpreting the statute, first noted that the purpose of the statute was to make the streets near schools safer for students and crossing guards. Id. at 17. Looking to the CDS statute, the Court noted that the legislature had stated that N.J.S.A.’s similar language was intended to create a permanent safety zone around schools recognizing that children often congregate around school grounds even when school is not in session. Id.
The Court stated that as the statute is designed to protect children travelling to and from school, the statute does not limit its definition of school property based on whether the school is public, private, or parochial, nor whether it is an elementary or secondary school. Id. at 18. The Court likewise noted that based on the legislative history, that courts should not focus on the manner in which title to the property is held. Id. at 19. The legislature, therefore, did not define “school property” to exclude schools because they are not owned or leased by a school board.
Under this legislative history, then, the Court found that the parish church which owns the property and operates the school qualifies as an “elementary education entity” within the meaning of the statute. Id. As the legislative history clearly expresses an intent that the 1000 foot zone begins at the borders of the school’s campus and not at the edge of the building or immediate vicinity, the Court likewise found that the entirety of the parish’s property qualified as “school property” under the statute. Id. at 21-22. As such, defendant’s claim that he was “1048” feet from school and its parking lot but less than 1000 feet from other parts of the church grounds does not assert a colorable claim of innocence. Id. at 22. The Court similarly rejected McDonald’s contention that the late hour prevents the school zone language from applying. Id. at 23.
Turning to the remaining three Slater factors, the Court found that they did not make up for the lack of a colorable claim of innocence. That defendant was not permitted to contest the allegation that the event occurred within 1,000 feet of a school could not serve as a valid excuse for not raising a defense when that contest was, as a matter of law, incapable of establishing a colorable claim of innocence. Id. at 24. Likewise, the presence of a plea bargain weighed against McDonald. Id. Though the Court found that no prejudice would be done to the state, in the absence of a colorable claim of innocence, the Court ruled that the interests of justice would not be served by allowing McDonald to withdraw his plea. Id. at 26-27.
The Court also addressed the defendant’s remaining contentions. As the defendant had been intoxicated and travelling over the speed limit, the Court rejected the argument that the element of recklessness was not supported during the plea hearing. Id. at 28. The Court also rejected the argument that there was no basis for his driving with a suspended license plea. Id. at 29-30. That defendant had a North Carolina license for 15 years (which had expired) did not change the fact that his suspended NJ license had never been reinstated. As such, the defendant’s guilt for that charge was established by the letter of the statute, regardless of the out of state license. Id. As the defendant’s final contention, that he had suffered from ineffective assistance of counsel at the original plea hearing would be more properly addressed in a Post Conviction Relief hearing, the Court did not address that issue.
Ultimately, the Court held that the definition of “within 1000 feet” of a school included being within 1000 feet of any portion of the church grounds of the church which owned and operated the school. As such, McDonald could not assert a colorable claim of innocence as to his assault by auto charge, and thus had no grounds to move for the withdrawal of his guilty plea.
In its recent decision in State v. McDonald, A-118-10, N.J. (July 23, 2012), the New Jersey Supreme Court clearly annunciated the standards for determining whether a motor vehicle accident occurred within 1000 feet of a school for the purposes of N.J.S.A. 2C:12-1(c)(3)(a) (the DWI assault by auto statute). The factual background of McDonald is as follows. At 2:18 a.m. on January 14, 2007McDonald struck and severely injured a pedestrian outside of the Tropicana Casino in Atlantic City, NJ. McDonald, Slip. Op. at 5. Following the accident, police determined that McDonald had been driving in excess of the speed limit and had a blood alcohol concentration of .19. Id. Police also determined that McDonald’s NJ license had been suspended since 1994, and his out of state license had expired prior to the accident. Id.
The central fact to this appeal, however, is that the accident occurred within two blocks of a property owned by the Our Lady Star of The Sea Church. Id. That property, approximately a single square block in size, contains not only a parish church, but also a parochial elementary school. Id. The Court also noted that there was no lease agreement between the school and the church governing the use of the church owned land by the school. Id. at 6.The accident occurred within 1000 feet of the church property, but 1048 feet from the nearest corner of the school parking lot. Id. at 25.
Defendant was arrested and indicted for second-degree assault by auto in a school zone, N.J.S.A. 2C:12-1(c)(3)(a). Id. Defendant was also issued summonses for DWI, driving with a suspended license, DWI in a school zone, reckless driving, careless driving due to speed, and unlicensed driving. Id. On May 7, 2007, McDonald requested bail so that he may discuss his case with a new counsel. Id. While still represented by original counsel, however, McDonald entered a plea agreement on May 21, 2007. Id. Under the agreement, defendant pled guilty to second-degree assault by auto in a school zone, DWI, and driving with a suspended license in exchange for a sentence as if he had pled to a third-degree offense with a recommended sentence of three years in state prison. Id.
During his plea hearing, defendant acknowledged that he was guilty of driving a vehicle recklessly while intoxicated and also within a thousand feet of school property which caused serious bodily injury to the pedestrian involved. Id. at 7. Upon being asked if he disputed that his offense occurred within a thousand feet of the parochial school, the defendant stated that “[he] didn’t see it, but I might have missed it, okay.” Id. at 7.
On October 19, 2007, McDonald moved to withdraw his guilty plea under State v. Slater, contending that his former attorney had dismissed his concerns over the distance of the accident from the school and had not adequately determined the exact distance. As such, McDonald argued that the distance was in excess of 1000 feet from the actual school grounds (as opposed to the grounds of the church) and gave him a colorable claim of innocence. Id. at 8.The trial court rejected this argument, arguing that defendant’s motion was nothing more than “buyer’s remorse” as to a proper plea. Id. The defendant appealed, arguing points including that the accident was more than 1000 feet from actual school grounds. Id. at 9. The appellate division affirmed the trial court’s finding, corrected some sentencing issues, and merged the DWI conviction into the assault by auto conviction. McDonald appealed and certification was granted. Id. at 10.
Under Slater, a court must consider whether the defendant has asserted a colorable claim of innocence, the nature and strength of defendant’s reason for withdrawing his plea, the existence of a plea bargain, and whether withdrawal would prejudice the state in determining if a plea may be withdrawn. The Court held that McDonald could assert no colorable claim to innocence and as such the defendant’s plea was not subject to withdrawal under the Slater test. The Court, in interpreting the meaning of the “within 1000 feet of a school” language of N.J.S.A. 2C:12-1(c)(3)(a) looked both to the case law and legislative history of that statute and that of N.J.S.A. 2C:35-7, which governs controlled dangerous substance offenses in school zones.
Under the statute, assault by auto is a second degree when the driver causes serious iunjury, while intoxicated and “on any school property used for school purposes which is owned by or leased to any elementary school or school board, or within 1,000 feet of such school property.” The statute precludes a defendant from claiming that he was unaware of being within that zone or that no juveniles were present at the time as a defense to the charges. Id. at 15. The Court, in interpreting the statute, first noted that the purpose of the statute was to make the streets near schools safer for students and crossing guards. Id. at 17. Looking to the CDS statute, the Court noted that the legislature had stated that N.J.S.A.’s similar language was intended to create a permanent safety zone around schools recognizing that children often congregate around school grounds even when school is not in session. Id.
The Court stated that as the statute is designed to protect children travelling to and from school, the statute does not limit its definition of school property based on whether the school is public, private, or parochial, nor whether it is an elementary or secondary school. Id. at 18. The Court likewise noted that based on the legislative history, that courts should not focus on the manner in which title to the property is held. Id. at 19. The legislature, therefore, did not define “school property” to exclude schools because they are not owned or leased by a school board.
Under this legislative history, then, the Court found that the parish church which owns the property and operates the school qualifies as an “elementary education entity” within the meaning of the statute. Id. As the legislative history clearly expresses an intent that the 1000 foot zone begins at the borders of the school’s campus and not at the edge of the building or immediate vicinity, the Court likewise found that the entirety of the parish’s property qualified as “school property” under the statute. Id. at 21-22. As such, defendant’s claim that he was “1048” feet from school and its parking lot but less than 1000 feet from other parts of the church grounds does not assert a colorable claim of innocence. Id. at 22. The Court similarly rejected McDonald’s contention that the late hour prevents the school zone language from applying. Id. at 23.
Turning to the remaining three Slater factors, the Court found that they did not make up for the lack of a colorable claim of innocence. That defendant was not permitted to contest the allegation that the event occurred within 1,000 feet of a school could not serve as a valid excuse for not raising a defense when that contest was, as a matter of law, incapable of establishing a colorable claim of innocence. Id. at 24. Likewise, the presence of a plea bargain weighed against McDonald. Id. Though the Court found that no prejudice would be done to the state, in the absence of a colorable claim of innocence, the Court ruled that the interests of justice would not be served by allowing McDonald to withdraw his plea. Id. at 26-27.
The Court also addressed the defendant’s remaining contentions. As the defendant had been intoxicated and travelling over the speed limit, the Court rejected the argument that the element of recklessness was not supported during the plea hearing. Id. at 28. The Court also rejected the argument that there was no basis for his driving with a suspended license plea. Id. at 29-30. That defendant had a North Carolina license for 15 years (which had expired) did not change the fact that his suspended NJ license had never been reinstated. As such, the defendant’s guilt for that charge was established by the letter of the statute, regardless of the out of state license. Id. As the defendant’s final contention, that he had suffered from ineffective assistance of counsel at the original plea hearing would be more properly addressed in a Post Conviction Relief hearing, the Court did not address that issue.
Ultimately, the Court held that the definition of “within 1000 feet” of a school included being within 1000 feet of any portion of the church grounds of the church which owned and operated the school. As such, McDonald could not assert a colorable claim of innocence as to his assault by auto charge, and thus had no grounds to move for the withdrawal of his guilty plea.
State v. Duprey - New Jersey Domestic Violence Case
Submitted by: New Jersey Domestic Violence Lawyer, Jeffrey Hark.
State v. Duprey,
___ N.J. Supser. ___,
Docket No. A-5469-10T4 (App. Div. August 1, 2012)
In a recent decision, the Appellate Division has ruled that testimony given during a domestic violence hearing may be now be used to impeach the credibility of the domestic violence complainant and defendant if and when they testify at a criminal proceeding arising out of the same facts. In State v. Duprey, the Appellate Division ruled that N.J.S.A. 2C:25-29(a) should not be read to bar the use of such testimony for impeachment purposes to best achieve the legislature’s intended goals. In that case, the defendant, Duprey, sought to use the transcript of domestic violence proceedings against him as affirmative evidence and as impeachment evidence during his related criminal trial for assault and terroristic threats. Duprey, Slip. Op. at 3. After several hearings and opposition by the State, the trial court ruled that the transcripts of the Domestic Violence matter could be used at the criminal trial ONLY for impeachment purposes, both against the plaintiff in the DV matter and against Duprey should he choose to take the stand. Id. at 4. The State then appealed that decision.
The Appellate Division, in considering the statute, rejected the contention that this was a pure matter of statutory interpretation, instead finding that it implicated important facets of the Confrontation Clause of the United States and New Jersey Constitutions. Turning first to the text of the statute, N.J.S.A. 2C:25-29(a) states,
If a criminal complaint arising out of the same incident which is the subject matter of a complaint brought under [the DV Act] has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is available.
Id. at 7. In interpreting this clause, the Appellate Division recognized that the intent of the statute was “to facilitate simultaneous or subsequent criminal proceedings unimpacted by the DV action[.]” Id. at 8 (internal citations omitted). The Division also noted the overall purpose of the DV Act to protect the interest of DV victims. Id.
Setting aside the exceptions as inapplicable to Duprey’s matter, the Appellate Division first dealt with Duprey’s allegation that the statute only prevented the use of the DV testimony against the defendant. The Division specifically noted that the phrase “against the defendant” followed “criminal proceeding” and not “Shall not be used.” Id. at 9. As such, the contention that only the defendant was “protected” by the statute is a misreading of the text of the statute.
Instead, the Division viewed the prohibition of the statute as being broadly written and applying to any use of such testimony at the criminal trial. Id. So broad a reading, however, the Appellate Division held, “would interfere with a criminal defendant’s rights under the Confrontation Clause.” Id. Specifically, if the DV plaintiff were unavailable, her testimony could be used at trial through N.J.R.E. 804(b)(1); while if that same plaintiff did testify at the criminal trial, the defendant would be prohibited from confronting that plaintiff with her prior sworn testimony for impeachment purposes. Id. at 10.
In so noting, the Appellate Division looked to the statements of the New Jersey Supreme Court in State v. Guenther, 181 N.J. 129, 147-48 (2004), that a defendant’s right to confrontation is best expressed through cross-examination, and as such that cross examination should not “bow to the mechanistic application of a state’s rules of evidence or procedure [that] would undermine the truth-finding function [of cross examination].” Id. at 10-11. The Appellate Division also noted that the Court in Guenther recognized a difference between specific and general attacks on credibility (those couched on general assumptions such as that convicts are less trustworthy than general citizens) and specific attacks on credibility (such as showing the bias, prejudice, or ulterior motives of the witness). Id. at 11-12.
Applying those principles, the Appellate Division concluded that
The trial testimony of a DV complainant must be available for use by the defendant during cross-examination to impeach contradictory or inconsistent testimony that is material to the charges against the defendant, or to show bias, prejudice, or ulterior motives on the part of the witness.
Id. at 12-13. The proponent of such evidence need not demonstrate that such evidence is “the only available evidence” nor that it relates to “a critical issue.” Id. at 13. The Division couched this holding by noting that
A trial judge shall exercise discretion in precluding lines of inquiry that he or she finds relate solely to “general impeachment.” The “ultimate question” for the trial judge in making that determination is whether exclusion serves the interests of fairness and reliability.
Id. (internal citations omitted). The Appellate Division also ruled that should the defendant choose to take the stand and be subject to cross-examination, he would be subject to use of his DV testimony for impeachment purposes to the same extent as the DV plaintiff. Id. The Appellate Division noted that this interpretation of the statute comports with the intent of the statute, as there was no reason to believe that the legislature intended the statute to allow a DV defendant to testify falsely at a subsequent criminal trial without fear of impeachment. Id. at 15. Ultimately, Duprey stands for the proposition that testimony taken at a DV hearing may be used for impeachment purposes against plaintiff or defendant in a subsequent or simultaneous criminal action.
State v. Duprey,
___ N.J. Supser. ___,
Docket No. A-5469-10T4 (App. Div. August 1, 2012)
In a recent decision, the Appellate Division has ruled that testimony given during a domestic violence hearing may be now be used to impeach the credibility of the domestic violence complainant and defendant if and when they testify at a criminal proceeding arising out of the same facts. In State v. Duprey, the Appellate Division ruled that N.J.S.A. 2C:25-29(a) should not be read to bar the use of such testimony for impeachment purposes to best achieve the legislature’s intended goals. In that case, the defendant, Duprey, sought to use the transcript of domestic violence proceedings against him as affirmative evidence and as impeachment evidence during his related criminal trial for assault and terroristic threats. Duprey, Slip. Op. at 3. After several hearings and opposition by the State, the trial court ruled that the transcripts of the Domestic Violence matter could be used at the criminal trial ONLY for impeachment purposes, both against the plaintiff in the DV matter and against Duprey should he choose to take the stand. Id. at 4. The State then appealed that decision.
The Appellate Division, in considering the statute, rejected the contention that this was a pure matter of statutory interpretation, instead finding that it implicated important facets of the Confrontation Clause of the United States and New Jersey Constitutions. Turning first to the text of the statute, N.J.S.A. 2C:25-29(a) states,
If a criminal complaint arising out of the same incident which is the subject matter of a complaint brought under [the DV Act] has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is available.
Id. at 7. In interpreting this clause, the Appellate Division recognized that the intent of the statute was “to facilitate simultaneous or subsequent criminal proceedings unimpacted by the DV action[.]” Id. at 8 (internal citations omitted). The Division also noted the overall purpose of the DV Act to protect the interest of DV victims. Id.
Setting aside the exceptions as inapplicable to Duprey’s matter, the Appellate Division first dealt with Duprey’s allegation that the statute only prevented the use of the DV testimony against the defendant. The Division specifically noted that the phrase “against the defendant” followed “criminal proceeding” and not “Shall not be used.” Id. at 9. As such, the contention that only the defendant was “protected” by the statute is a misreading of the text of the statute.
Instead, the Division viewed the prohibition of the statute as being broadly written and applying to any use of such testimony at the criminal trial. Id. So broad a reading, however, the Appellate Division held, “would interfere with a criminal defendant’s rights under the Confrontation Clause.” Id. Specifically, if the DV plaintiff were unavailable, her testimony could be used at trial through N.J.R.E. 804(b)(1); while if that same plaintiff did testify at the criminal trial, the defendant would be prohibited from confronting that plaintiff with her prior sworn testimony for impeachment purposes. Id. at 10.
In so noting, the Appellate Division looked to the statements of the New Jersey Supreme Court in State v. Guenther, 181 N.J. 129, 147-48 (2004), that a defendant’s right to confrontation is best expressed through cross-examination, and as such that cross examination should not “bow to the mechanistic application of a state’s rules of evidence or procedure [that] would undermine the truth-finding function [of cross examination].” Id. at 10-11. The Appellate Division also noted that the Court in Guenther recognized a difference between specific and general attacks on credibility (those couched on general assumptions such as that convicts are less trustworthy than general citizens) and specific attacks on credibility (such as showing the bias, prejudice, or ulterior motives of the witness). Id. at 11-12.
Applying those principles, the Appellate Division concluded that
The trial testimony of a DV complainant must be available for use by the defendant during cross-examination to impeach contradictory or inconsistent testimony that is material to the charges against the defendant, or to show bias, prejudice, or ulterior motives on the part of the witness.
Id. at 12-13. The proponent of such evidence need not demonstrate that such evidence is “the only available evidence” nor that it relates to “a critical issue.” Id. at 13. The Division couched this holding by noting that
A trial judge shall exercise discretion in precluding lines of inquiry that he or she finds relate solely to “general impeachment.” The “ultimate question” for the trial judge in making that determination is whether exclusion serves the interests of fairness and reliability.
Id. (internal citations omitted). The Appellate Division also ruled that should the defendant choose to take the stand and be subject to cross-examination, he would be subject to use of his DV testimony for impeachment purposes to the same extent as the DV plaintiff. Id. The Appellate Division noted that this interpretation of the statute comports with the intent of the statute, as there was no reason to believe that the legislature intended the statute to allow a DV defendant to testify falsely at a subsequent criminal trial without fear of impeachment. Id. at 15. Ultimately, Duprey stands for the proposition that testimony taken at a DV hearing may be used for impeachment purposes against plaintiff or defendant in a subsequent or simultaneous criminal action.
Vasiliki Rallatos, Petitioner v. DECISION The ARC of Atlantic County, Respondent
Posted by: New Jersey Criminal Lawyer, Jeffery Hark
___________________
Vasiliki Rallatos, Petitioner
v. DECISION
The ARC of Atlantic County, Respondent,
_________________________
BEFORE:
HONORABLE CARMINE J. TAGLIALATELLA JUDGE OF COMPENSATION
APPEARANCES:
Lawrence A. Mintz, Esquire
Goldenber, Mackler, Sayegh, Mintz, et. al.
1030 Atlantic Avenue
Atlantic City, NJ 08401
Attorney for the Petitioner
Dorothy T. Daly, Esquire
Christie, Parabue, Mortenson & Young, P.C.
Sentry Office Plaza, Suite
703216 Haddon AvenueWestmont, NJ 08108
Attorney for Respondent
This matter comes before the court on the ARC of Atlantic County’s (hereinafter “Respondent”) motion to dismiss this claim as it argued that Vasiliki Rallatos’s (hereinafter “Petitioner”) activities on May 20, 2010 were not compensable under N.J.S.A. 34:15-7 et seq.. It is Respondent’s assertion that the Petitioner should be considered a volunteer and not an employee for the purposes of determining compensability. In opposition to the motion, Petitioner contends that a discount that was extended to her in connection with her activity for Respondent qualifies as sufficient financial consideration to meet the definition of “employee” under N.J.S.A. 34:15-36.
The parties have stipulated that Petitioner was on the premises of the Respondent on May 20, 2010. As to all other issues, Respondent has left Petitioner to her proofs. It was pointed out that Respondent did initially provide Petitioner with authorized medical care. However, it is clear that such care was offered without prejudice and Respondent has since disputed the foundational issue as to Petitioner’s status as an employee.
In order to frame the issue for the court, the parties were asked to submit briefs in support of their arguments. These letter briefs were reviewed prior to the taking of testimony regarding the facts of Petitioner’s association with Respondent. The parties produced the Petitioner as well as two lay witnesses for testimony on June 7, 2012. The only documentary evidence submitted was marked as R-1, “The ARC of Atlantic County Volunteer Application.
”The Petitioner testified that she was aware of the Respondent’s thrift store in Ventnor having shopped there for some time prior to her more formal association. She said that she purchased from there regularly before submitting the application to volunteer. Unfortunately, Petitioner had the time to volunteer because she had been laid off from work as a teacher. She spoke about having “time on [her] hands” while she was looking for work and collecting unemployment benefits. Petitioner discussed her previous experience with volunteering her time to other organizations. While in high school she did some volunteer work for the VA Hospital; she also volunteered her time at a library while living in Miami. She said that she believed it was a good thing to give her time to community organizations that she felt were important; and she did agree that the Respondent was such an organization.
During her direct examination, Petitioner explained about the fifty percent (50%) discount on all items in the thrift store offered to those who volunteered their time. She was told about the discount when she submitted her volunteer application (R-1 in evidence) and she testified that it was “a great incentive.” While she did admit that she would have “possibly” volunteered at the store without the discount, she noted that the discount helped her because she was unemployed.
The Respondent produced two witnesses: Lynn Lippert, Human Resources Director for the Respondent; and Phyllis Terlecky, the lead volunteer at the thrift store. Through their testimony the court learned that Respondent does not treat its volunteers in any way like it does its employees. There are no benefits to administer and no paperwork or reporting that deals with the volunteers; as such, Ms. Lippert had no contact with the Petitioner. On the other hand, Ms. Terlecky did have contact with her. It was her responsibility to make the schedule for the volunteers. This involved discerning when they could work and what times and shifts needed to be covered. Further, Ms. Terlecky testified that she had never been paid any wage as a volunteer, nor had any other volunteer; but she was aware of the discount. She referred to it as an “unwritten rule” that volunteers were to get a reduction on the price of goods at the thrift store.
The court found the testimony of all of the witnesses to be credible. In fact, their testimony was largely corroborative. It helped to get a sense of the “business” of the thrift store and its value for the Respondent. It is also clear that this operation could only work if there were volunteers and donors to allow it to remain viable.
Following testimony the court conducted a brief session of oral argument to help illuminate the meaning of “employee” in this context. Both attorneys braved the court’s questions surrounding the definitions and meanings of words and phrases such as “value”, “financial consideration”, “employee”, and “volunteer.” The interpretation of these words and phrases are at the heart of the case.
Any analysis under the Workers’ Compensation Act must begin with the statute. We start with N.J.S.A. 34:15-36 which defines an “employee” as “synonymous with servant, and includes all natural persons,…, who perform service for an employer for financial consideration,…”. While the legislature used the term “servant” which might indicate a very broad range of persons included in the definition, this is tempered by the requirement of “financial consideration” in order to establish the relationship. Clearly, the old notion of ‘master-servant’, while referenced, is not wholly applicable.
The definitional tension is illustrated in the cases that follow: In the case of Goff v. County of Union, 26 N.J. Misc. 135, 57 A.2d 480 (Dept. Labor 1948) the opinion clearly states that in order to create the employer-employee relationship, there must be service performed for financial consideration. Id. at 138. Mr. Goff was incarcerated in the Union County jail and while doing some painting he was injured. Goff consented to do the painting as it would mean that he could receive some extra food. To the court, the provision of the “extra” food was not sufficient consideration to create an employment relationship for compensation benefits.
However, “financial consideration” need not be in the form of a wage. The case of Britten v. Berger, 18 N.J. Misc. 215 (Dept. Labor 1925) is demonstrative. Mr. Britten agreed to provide janitorial services in exchange for a place to live without paying rent. This was sufficient financial consideration to create an employment contract for workers’ compensation benefits and Mr. Britten’s estate was awarded same. The case of Heget v. Christ Hospital, 26 N.J. Misc. 189 (Hudson County 1948) involves a student nurse who was injured. While the trial court dismissed the claim, it was reinstated by the county court with the judge holding that since there was “pecuniary gain” by the hospital and given that the hospital provided room and board to the student, there was ample financial consideration to award compensation benefits. Id. at 191.
Petitioner relies most heavily on the Appellate Court’s decision in Kraivanger v. Radburn Association, 335 N.J. Super. 169 (App. Div. 2000). Ms. Kraivanger (14 years old at the time of the accident) was engaged as a counselor-in-training, or CIT, for the Radburn Association. While she was not paid a regular wage for her work, she did receive compensation for one training day and she had to file an IRS W-4 form as well as an INS I-9 form and supply “working papers”; all forms were required by respondent. Also, there were “regular” counselors who were paid for their work and petitioner was hoping to be hired as one at a later time.
The court in Kraivanger found that there was some financial consideration that passed from respondent to petitioner. In making that finding the court noted the filing of IRS and INS documents as well as the one day of pay for the training session; this distinguished petitioner from a so-called “true volunteer.” The court went on to hold that employee status exists “if any financial consideration at all” is exchanged between the parties. Id. at 172. This would appear to be a very low standard for the establishment of employer-employee relationship in order to award workers’ compensation benefits.
However, there is still this notion of a “true volunteer” and how that might be defined. Respondent relies on Armitage v. Trustees of Mt. Fern M.E. Church, 37 N.J. Super. 367 (Morris County 1954) for an answer. Mr. Armitage was one of 28 trustees of the respondent and it was decided that they would build an addition to the church. Church members were solicited for subscriptions (in units of $120) to cover the costs and it was provided that any subscriber could perform labor at a rate of $1.50 per hour as a credit against their pledge. Petitioner subscribed for two units and while doing some carpentry work on the addition he suffered an injury. In affirming the decision of the bureau, the county court found that there was not an employer-employee relationship as petitioner’s work was “voluntary and he did not perform services for the church for financial consideration as contemplated by R.S. 34:15-36,…”. Id. at 370.
Respondent not only argues that Petitioner is a “true volunteer”, but that there was no consideration of gaining anything when she engaged in her work for the thrift store. Returning to the Petitioner’s testimony it is clear that she started the process with Respondent for altruistic reasons. She had shopped at the thrift store and was a supporter of the work Respondent was doing for its members and the community.[1] She had a history of volunteering and had placed applications with several other charitable organizations. She was collecting unemployment benefits and had free time to donate. The thrift store was nearest to her home, so when they accepted her application she was happy to work there. The discount was a bonus and it did not appear to the court that she would not have taken the position if there was no discount.
Her own testimony indicated that it was likely she would have volunteered without the discount.Petitioner has argued under Kraivanger that the discount is of some value, both generally and specifically for herself; and it is this ‘value’ that is sufficient to form the basis of the financial consideration between the parties. While the court agrees with Petitioner’s argument that the discount has a value; all that is of value is not financial consideration.[2]
Here we go back to the basic legal definition of consideration. Consideration is a benefit conferred as an inducement to a commitment. It can be commonly seen in the standard employment agreement whereby a worker works the job for which he is paid a wage by the employer. There are many other forms of consideration; far too numerous to list here. The question for this court is: Was the 50% discount afforded to Petitioner an inducement to get her to commit her time and services to Respondent? The answer: No.
The court is also mindful of the broader implications for charitable organizations as a result of this decision. Many of these groups rely on donations and volunteers in order to make ends meet and survive. Given the importance of their work to society, the court is careful to consider imposing any further burdens on such entities. While the instant matter was decided solely on the facts presented in light of the cases and the Act, the issues noted are not peripheral to those organizations that are trying to do good works for the poor and disabled.
Therefore, in light of the analysis and review of the statute as set forth above, the court finds that Petitioner was not an employee of Respondent as it is defined by Section 36 of the Workers’ Compensation Act and the cases cited. As such this claim petition shall be DISMISSED with prejudice. The Respondent shall prepare the proper form of Order for the court’s execution. There shall be a stenographic fee payable to Jersey Shore Reporting Services for the day of testimony in the amount of $150 by Respondent.
________________________________ June 28, 2012
HON. CARMINE J. TAGLIALATELLA, JWC
________________________________
[1] The acronym “ARC” represents the “Association of Retarded Citizens” and while Respondent states that the full name is no longer used due to current word usage standards, its name is illustrative of it purpose and goals.
[2] In fact, even if Ms. Rallatos were a wage earning employee, the IRS would not consider the discount a taxable event. See generally I.R.C. Sec. 132(a)(2); Reg Sec. 1.132-1(a)(2) and I.R.C. Sec. 132(c)(3); Reg Sec. 1.132(b)(1).
___________________
Vasiliki Rallatos, Petitioner
v. DECISION
The ARC of Atlantic County, Respondent,
_________________________
BEFORE:
HONORABLE CARMINE J. TAGLIALATELLA JUDGE OF COMPENSATION
APPEARANCES:
Lawrence A. Mintz, Esquire
Goldenber, Mackler, Sayegh, Mintz, et. al.
1030 Atlantic Avenue
Atlantic City, NJ 08401
Attorney for the Petitioner
Dorothy T. Daly, Esquire
Christie, Parabue, Mortenson & Young, P.C.
Sentry Office Plaza, Suite
703216 Haddon AvenueWestmont, NJ 08108
Attorney for Respondent
This matter comes before the court on the ARC of Atlantic County’s (hereinafter “Respondent”) motion to dismiss this claim as it argued that Vasiliki Rallatos’s (hereinafter “Petitioner”) activities on May 20, 2010 were not compensable under N.J.S.A. 34:15-7 et seq.. It is Respondent’s assertion that the Petitioner should be considered a volunteer and not an employee for the purposes of determining compensability. In opposition to the motion, Petitioner contends that a discount that was extended to her in connection with her activity for Respondent qualifies as sufficient financial consideration to meet the definition of “employee” under N.J.S.A. 34:15-36.
The parties have stipulated that Petitioner was on the premises of the Respondent on May 20, 2010. As to all other issues, Respondent has left Petitioner to her proofs. It was pointed out that Respondent did initially provide Petitioner with authorized medical care. However, it is clear that such care was offered without prejudice and Respondent has since disputed the foundational issue as to Petitioner’s status as an employee.
In order to frame the issue for the court, the parties were asked to submit briefs in support of their arguments. These letter briefs were reviewed prior to the taking of testimony regarding the facts of Petitioner’s association with Respondent. The parties produced the Petitioner as well as two lay witnesses for testimony on June 7, 2012. The only documentary evidence submitted was marked as R-1, “The ARC of Atlantic County Volunteer Application.
”The Petitioner testified that she was aware of the Respondent’s thrift store in Ventnor having shopped there for some time prior to her more formal association. She said that she purchased from there regularly before submitting the application to volunteer. Unfortunately, Petitioner had the time to volunteer because she had been laid off from work as a teacher. She spoke about having “time on [her] hands” while she was looking for work and collecting unemployment benefits. Petitioner discussed her previous experience with volunteering her time to other organizations. While in high school she did some volunteer work for the VA Hospital; she also volunteered her time at a library while living in Miami. She said that she believed it was a good thing to give her time to community organizations that she felt were important; and she did agree that the Respondent was such an organization.
During her direct examination, Petitioner explained about the fifty percent (50%) discount on all items in the thrift store offered to those who volunteered their time. She was told about the discount when she submitted her volunteer application (R-1 in evidence) and she testified that it was “a great incentive.” While she did admit that she would have “possibly” volunteered at the store without the discount, she noted that the discount helped her because she was unemployed.
The Respondent produced two witnesses: Lynn Lippert, Human Resources Director for the Respondent; and Phyllis Terlecky, the lead volunteer at the thrift store. Through their testimony the court learned that Respondent does not treat its volunteers in any way like it does its employees. There are no benefits to administer and no paperwork or reporting that deals with the volunteers; as such, Ms. Lippert had no contact with the Petitioner. On the other hand, Ms. Terlecky did have contact with her. It was her responsibility to make the schedule for the volunteers. This involved discerning when they could work and what times and shifts needed to be covered. Further, Ms. Terlecky testified that she had never been paid any wage as a volunteer, nor had any other volunteer; but she was aware of the discount. She referred to it as an “unwritten rule” that volunteers were to get a reduction on the price of goods at the thrift store.
The court found the testimony of all of the witnesses to be credible. In fact, their testimony was largely corroborative. It helped to get a sense of the “business” of the thrift store and its value for the Respondent. It is also clear that this operation could only work if there were volunteers and donors to allow it to remain viable.
Following testimony the court conducted a brief session of oral argument to help illuminate the meaning of “employee” in this context. Both attorneys braved the court’s questions surrounding the definitions and meanings of words and phrases such as “value”, “financial consideration”, “employee”, and “volunteer.” The interpretation of these words and phrases are at the heart of the case.
Any analysis under the Workers’ Compensation Act must begin with the statute. We start with N.J.S.A. 34:15-36 which defines an “employee” as “synonymous with servant, and includes all natural persons,…, who perform service for an employer for financial consideration,…”. While the legislature used the term “servant” which might indicate a very broad range of persons included in the definition, this is tempered by the requirement of “financial consideration” in order to establish the relationship. Clearly, the old notion of ‘master-servant’, while referenced, is not wholly applicable.
The definitional tension is illustrated in the cases that follow: In the case of Goff v. County of Union, 26 N.J. Misc. 135, 57 A.2d 480 (Dept. Labor 1948) the opinion clearly states that in order to create the employer-employee relationship, there must be service performed for financial consideration. Id. at 138. Mr. Goff was incarcerated in the Union County jail and while doing some painting he was injured. Goff consented to do the painting as it would mean that he could receive some extra food. To the court, the provision of the “extra” food was not sufficient consideration to create an employment relationship for compensation benefits.
However, “financial consideration” need not be in the form of a wage. The case of Britten v. Berger, 18 N.J. Misc. 215 (Dept. Labor 1925) is demonstrative. Mr. Britten agreed to provide janitorial services in exchange for a place to live without paying rent. This was sufficient financial consideration to create an employment contract for workers’ compensation benefits and Mr. Britten’s estate was awarded same. The case of Heget v. Christ Hospital, 26 N.J. Misc. 189 (Hudson County 1948) involves a student nurse who was injured. While the trial court dismissed the claim, it was reinstated by the county court with the judge holding that since there was “pecuniary gain” by the hospital and given that the hospital provided room and board to the student, there was ample financial consideration to award compensation benefits. Id. at 191.
Petitioner relies most heavily on the Appellate Court’s decision in Kraivanger v. Radburn Association, 335 N.J. Super. 169 (App. Div. 2000). Ms. Kraivanger (14 years old at the time of the accident) was engaged as a counselor-in-training, or CIT, for the Radburn Association. While she was not paid a regular wage for her work, she did receive compensation for one training day and she had to file an IRS W-4 form as well as an INS I-9 form and supply “working papers”; all forms were required by respondent. Also, there were “regular” counselors who were paid for their work and petitioner was hoping to be hired as one at a later time.
The court in Kraivanger found that there was some financial consideration that passed from respondent to petitioner. In making that finding the court noted the filing of IRS and INS documents as well as the one day of pay for the training session; this distinguished petitioner from a so-called “true volunteer.” The court went on to hold that employee status exists “if any financial consideration at all” is exchanged between the parties. Id. at 172. This would appear to be a very low standard for the establishment of employer-employee relationship in order to award workers’ compensation benefits.
However, there is still this notion of a “true volunteer” and how that might be defined. Respondent relies on Armitage v. Trustees of Mt. Fern M.E. Church, 37 N.J. Super. 367 (Morris County 1954) for an answer. Mr. Armitage was one of 28 trustees of the respondent and it was decided that they would build an addition to the church. Church members were solicited for subscriptions (in units of $120) to cover the costs and it was provided that any subscriber could perform labor at a rate of $1.50 per hour as a credit against their pledge. Petitioner subscribed for two units and while doing some carpentry work on the addition he suffered an injury. In affirming the decision of the bureau, the county court found that there was not an employer-employee relationship as petitioner’s work was “voluntary and he did not perform services for the church for financial consideration as contemplated by R.S. 34:15-36,…”. Id. at 370.
Respondent not only argues that Petitioner is a “true volunteer”, but that there was no consideration of gaining anything when she engaged in her work for the thrift store. Returning to the Petitioner’s testimony it is clear that she started the process with Respondent for altruistic reasons. She had shopped at the thrift store and was a supporter of the work Respondent was doing for its members and the community.[1] She had a history of volunteering and had placed applications with several other charitable organizations. She was collecting unemployment benefits and had free time to donate. The thrift store was nearest to her home, so when they accepted her application she was happy to work there. The discount was a bonus and it did not appear to the court that she would not have taken the position if there was no discount.
Her own testimony indicated that it was likely she would have volunteered without the discount.Petitioner has argued under Kraivanger that the discount is of some value, both generally and specifically for herself; and it is this ‘value’ that is sufficient to form the basis of the financial consideration between the parties. While the court agrees with Petitioner’s argument that the discount has a value; all that is of value is not financial consideration.[2]
Here we go back to the basic legal definition of consideration. Consideration is a benefit conferred as an inducement to a commitment. It can be commonly seen in the standard employment agreement whereby a worker works the job for which he is paid a wage by the employer. There are many other forms of consideration; far too numerous to list here. The question for this court is: Was the 50% discount afforded to Petitioner an inducement to get her to commit her time and services to Respondent? The answer: No.
The court is also mindful of the broader implications for charitable organizations as a result of this decision. Many of these groups rely on donations and volunteers in order to make ends meet and survive. Given the importance of their work to society, the court is careful to consider imposing any further burdens on such entities. While the instant matter was decided solely on the facts presented in light of the cases and the Act, the issues noted are not peripheral to those organizations that are trying to do good works for the poor and disabled.
Therefore, in light of the analysis and review of the statute as set forth above, the court finds that Petitioner was not an employee of Respondent as it is defined by Section 36 of the Workers’ Compensation Act and the cases cited. As such this claim petition shall be DISMISSED with prejudice. The Respondent shall prepare the proper form of Order for the court’s execution. There shall be a stenographic fee payable to Jersey Shore Reporting Services for the day of testimony in the amount of $150 by Respondent.
________________________________ June 28, 2012
HON. CARMINE J. TAGLIALATELLA, JWC
________________________________
[1] The acronym “ARC” represents the “Association of Retarded Citizens” and while Respondent states that the full name is no longer used due to current word usage standards, its name is illustrative of it purpose and goals.
[2] In fact, even if Ms. Rallatos were a wage earning employee, the IRS would not consider the discount a taxable event. See generally I.R.C. Sec. 132(a)(2); Reg Sec. 1.132-1(a)(2) and I.R.C. Sec. 132(c)(3); Reg Sec. 1.132(b)(1).
Wednesday, July 25, 2012
Kulesh’s, Kubert’s, and Bolis’ Law: Cell Phone Use and Recklessness
Posted by: New Jersey Criminal Lawyer, Jeffery Hark
On July 18, 2012, a new law was approved which dramatically alters the interaction between illegal cell phone use and vehicular homicide prosecutions. Assembly Bill 1074 passed both the New Jersey Assembly and Senate on June 21 and 28 respectfully. This new law creates an inference that individuals who cause death or bodily injury to another with a vehicle while illegally using a cell phone acted recklessly.
Specifically, A1074 amends the text of N.J.S.A. 2C:11-5, which governs Death by auto or vessel charges. Assemb. B. 1074, 215th Legislature 2:19-23. Under 2C:11-5, “criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly.” N.J. Stat. Ann. §2C:11-5 (West 2012). Under A1074, “Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle in violation of section 1 of P.L. 2003, c.310 (C. 39:4-97.3) shall give rise to an inference that the defendant was driving recklessly.” Assemb. B. 1074, 215th Legislature 2:19-23. The bill makes a nearly identical alteration to N.J.S.A. 2C:12-1, the New Jersey criminal assault statute. The alteration to the Assault statute similarly creates an inference of recklessness for illegal cell phone use for those cases where driving the “inferred reckless” driver causes only bodily injury rather than death. Assemb. B. Substitute 1074, 215th Legislature 6:34-38. N.J.S.A. 39:4-97.3 generally prohibits the use of a hand held cell phone while driving save in certain emergency circumstances.
Effectively, this alteration to the law treats cell phone use as the equivalent of driving while intoxicated. Under N.J.S.A. 2C:11-5, “[p]roof that the defendant was driving while intoxicated in violation of [the DWI statute] or was operating a vessel under the influence of alcohol or drugs in violation of section 3 of P.L. 1952, c. 157 (C.12:7-46) shall give rise to an inference that the defendant was driving recklessly.” See Assemb. B. 1074, 215th Legislature 2:15-19. For the purposes of the vehicular homicide and assault statutes, then, the legislature views the usage of a cell phone while driving equal in danger to driving under the influence of drugs or alcohol. This alteration, then, is not only significant in that it expresses the legislature’s negative views of driving while using a hand held cell phone, but also because it may represent the first link in a chain that may well end with cell phone use in general (out of the context of death or serious bodilly injury) being treated in a similar manner as intoxication.
In their statement in support of A1074, the sponsors of the bill state that the purpose of the bill is to “make it easier for prosecutors to obtain convictions for vehicular homicide or assault by auto against a person who illegally uses a cell phone while driving, and, as a result, kills or injures someone. Assemb. B. 1074, 215th Legislature 9:14-17. The sponsors also noted that a conviction for vehicular homicide under the statute carries a sentence of five to ten years and a fine of up to $150,000.00; and that a conviction for assault by auto under the statute carries a sentence of up to 18 months with a 10,000 fine. Id. 9:23-30.
The new law, which has been named the “Kulesh’s, Kubert’s, and Bolis’ Law” after the victims of several “reckless” drivers who had been using their cell phones, greatly raises the potential penalties for those who become involved in accidents because of their cell phones. The act, which went into effect upon its approval by the State Executive on July 18, 2012, could mean severe penalties for those who choose to use hand held phones and end up causing harm to others. At the very least anyone who causes the death or injury of another while driving and using a cell phone will face a significant further hurtle at trial.
On July 18, 2012, a new law was approved which dramatically alters the interaction between illegal cell phone use and vehicular homicide prosecutions. Assembly Bill 1074 passed both the New Jersey Assembly and Senate on June 21 and 28 respectfully. This new law creates an inference that individuals who cause death or bodily injury to another with a vehicle while illegally using a cell phone acted recklessly.
Specifically, A1074 amends the text of N.J.S.A. 2C:11-5, which governs Death by auto or vessel charges. Assemb. B. 1074, 215th Legislature 2:19-23. Under 2C:11-5, “criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly.” N.J. Stat. Ann. §2C:11-5 (West 2012). Under A1074, “Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle in violation of section 1 of P.L. 2003, c.310 (C. 39:4-97.3) shall give rise to an inference that the defendant was driving recklessly.” Assemb. B. 1074, 215th Legislature 2:19-23. The bill makes a nearly identical alteration to N.J.S.A. 2C:12-1, the New Jersey criminal assault statute. The alteration to the Assault statute similarly creates an inference of recklessness for illegal cell phone use for those cases where driving the “inferred reckless” driver causes only bodily injury rather than death. Assemb. B. Substitute 1074, 215th Legislature 6:34-38. N.J.S.A. 39:4-97.3 generally prohibits the use of a hand held cell phone while driving save in certain emergency circumstances.
Effectively, this alteration to the law treats cell phone use as the equivalent of driving while intoxicated. Under N.J.S.A. 2C:11-5, “[p]roof that the defendant was driving while intoxicated in violation of [the DWI statute] or was operating a vessel under the influence of alcohol or drugs in violation of section 3 of P.L. 1952, c. 157 (C.12:7-46) shall give rise to an inference that the defendant was driving recklessly.” See Assemb. B. 1074, 215th Legislature 2:15-19. For the purposes of the vehicular homicide and assault statutes, then, the legislature views the usage of a cell phone while driving equal in danger to driving under the influence of drugs or alcohol. This alteration, then, is not only significant in that it expresses the legislature’s negative views of driving while using a hand held cell phone, but also because it may represent the first link in a chain that may well end with cell phone use in general (out of the context of death or serious bodilly injury) being treated in a similar manner as intoxication.
In their statement in support of A1074, the sponsors of the bill state that the purpose of the bill is to “make it easier for prosecutors to obtain convictions for vehicular homicide or assault by auto against a person who illegally uses a cell phone while driving, and, as a result, kills or injures someone. Assemb. B. 1074, 215th Legislature 9:14-17. The sponsors also noted that a conviction for vehicular homicide under the statute carries a sentence of five to ten years and a fine of up to $150,000.00; and that a conviction for assault by auto under the statute carries a sentence of up to 18 months with a 10,000 fine. Id. 9:23-30.
The new law, which has been named the “Kulesh’s, Kubert’s, and Bolis’ Law” after the victims of several “reckless” drivers who had been using their cell phones, greatly raises the potential penalties for those who become involved in accidents because of their cell phones. The act, which went into effect upon its approval by the State Executive on July 18, 2012, could mean severe penalties for those who choose to use hand held phones and end up causing harm to others. At the very least anyone who causes the death or injury of another while driving and using a cell phone will face a significant further hurtle at trial.
Thursday, July 19, 2012
State v. Slater withdrawal of guilty pleas brief
Submitted by New Jersey Criminal Attorney, Jeffrey Hark.
State v. Slater withdrawal of guilty pleas brief
I. A defendant’s motion to withdraw a guilty plea should be granted when the balance of the four factors expressed in State v. Slater establish that allowing the plea to stand would manifest injustice.
A motion to withdraw a guilty plea is determined under the standards set in State v. Slater, 198 N.J. 145 (2009). Under Slater, such motions are considered under the same four factor test regardless of whether the motion is made before or after sentencing. Courts deciding such motions must consider:
“(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.”
Id. at 150. If the motion is made prior to sentencing, these four factors are considered under the interests of justice standard of R. 3:9-3(e). Id. at 156. If the motion is made at any point after sentencing, however, the court must consider the four factors under the higher “manifest injustice” standard under R. 3:21-1. Id. Regardless of which standard applies, the burden rests on the defendant to present “some plausible basis for his request, and his good faith in asserting a defense on the merits.” Id. (quoting State v. Smullen, 118 N.J. 408 (1990)). A “whimsical change of mind” by the defendant or prosecutor is not an adequate basis for setting aside a plea. Slater, 198 N.J. at 157.
Under the first prong of the test, a defendant must assert a colorable claim of innocence. Id. at 158. A bare assertion of innocence is insufficient to justify withdrawing a plea. Id. Rather, the defendant must provide the court with “specific, credible facts and, where possible, point to facts in the record that buttress that claim.” Id. In so doing, the court may consider the evidence that was available to the prosecutor and defendant through discovery at the time the defendant entered his plea. Id. The court should not conduct a ‘mini-trial’ in making this determination, but should instead “simply consider whether a defendant’s assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts.” Id. at 159. The motion judge need not be convinced that the defendant presents a winning argument, as that is ultimately an issue for a jury in a criminal trial. State v. Munroe, 2012 WL 2401097 at *6, – N.J. – (N.J. Supreme Ct. June 27, 2012)
The second prong of the Slater test requires the court to review the nature and strength of the defendant’s reasons for the withdrawal of his plea. Id. This factor focuses on “the basic fairness of enforcing a guilty plea” by determining whether the defendant has presented fair and just reasons for his withdrawal. Id. Some examples of fair and just reasons provided by the Slater Court include: the court and prosecutor misinforming the defendant about a material element of the plea negotiation on which the defendant based his plea, a lack of information and understanding of the material terms and consequences of the guilty plea, a defendant’s reasonable expectations under a plea agreement not being met; or a plausible showing of a valid defense against the charges which also credibly demonstrates why that defense was “forgotten or missed” at the time of the plea. Id. at 160. In those cases made after sentencing, the defendant’s motion must be substantiated by strong, compelling reasons. Id. “The longer the delay in raising a reason for withdrawal, or asserting one’s innocence, the greater the level of scrutiny needed to evaluate the claim.” Id. The courts should not assess the nature and strength of the reasons for withdrawal with skepticism, but should instead act with great care and realism, recognizing that defendants oft have little to lose in challenging a guilty plea. Id. The court may rest its ruling, though, on its view of the defendant’s demeanor and candor during the plea and withdrawal hearings.
The third prong of the test requires the judge to decide whether the defendant’s plea was part of a plea bargain. Id. A defendant whose plea was part of a plea bargain will face a heavier burden. Id. As the Court recognized that the vast majority of guilty verdicts arise out of plea agreements, the Court suggests that this factor should not be given great weight in balancing the prongs of the Slater test. Id. at 161. Indeed, the plea bargain question should be given the least weight in the overall analysis. Munroe, 2012 WL 2401097 at *6.
The final prong courts must consider is whether the withdrawal of the defendant’s plea would result in unfair prejudice to the State or an unfair advantage to the accused. Slater, 198 N.J. at 161. The critical inquiry the court must make under this prong is “whether the passage of time has hampered the State’s ability to present important evidence.” Munroe, 2012 WL 2401097 at *6. In so doing, the court should consider the intervening time between the entry of the guilty plea and the hearing of the withdrawal motion. Id. Certain facts will easily demonstrate prejudice to the state, such as the loss or inability to find a needed witness, the faded memories of witnesses on a contested point, or the loss/deterioration of key pieces of evidence. Slater, 198 N.J. at 161.
The court may also consider the State’s efforts leading up to the plea and whether it is fair to require that they be repeated. Id. Court’s should especially consider whether a trial had begun prior to the entrance of the plea. Id. To allow defendants represented by counsel to withdraw voluntary and knowing pleas entered after trial began would greatly impede the administration of justice. Id. at 162. The State, however, is not required to show prejudice in the event that a defendant fails to offer proof in support of the other Slater factors. Id.
Ultimately, in applying these factors, the court must balance the four factors to determine whether the facts meet the “interest of justice” or “manifest injustice” standard depending on the timing of the withdrawal motion. “No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief.” Id. Should the balanced factors produce a showing of manifest injustice or the lower interest of justice standard in those cases where the motion is made before sentencing, the court should grant the defendant’s motion to withdraw his guilty plea.
State v. Slater withdrawal of guilty pleas brief
I. A defendant’s motion to withdraw a guilty plea should be granted when the balance of the four factors expressed in State v. Slater establish that allowing the plea to stand would manifest injustice.
A motion to withdraw a guilty plea is determined under the standards set in State v. Slater, 198 N.J. 145 (2009). Under Slater, such motions are considered under the same four factor test regardless of whether the motion is made before or after sentencing. Courts deciding such motions must consider:
“(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.”
Id. at 150. If the motion is made prior to sentencing, these four factors are considered under the interests of justice standard of R. 3:9-3(e). Id. at 156. If the motion is made at any point after sentencing, however, the court must consider the four factors under the higher “manifest injustice” standard under R. 3:21-1. Id. Regardless of which standard applies, the burden rests on the defendant to present “some plausible basis for his request, and his good faith in asserting a defense on the merits.” Id. (quoting State v. Smullen, 118 N.J. 408 (1990)). A “whimsical change of mind” by the defendant or prosecutor is not an adequate basis for setting aside a plea. Slater, 198 N.J. at 157.
Under the first prong of the test, a defendant must assert a colorable claim of innocence. Id. at 158. A bare assertion of innocence is insufficient to justify withdrawing a plea. Id. Rather, the defendant must provide the court with “specific, credible facts and, where possible, point to facts in the record that buttress that claim.” Id. In so doing, the court may consider the evidence that was available to the prosecutor and defendant through discovery at the time the defendant entered his plea. Id. The court should not conduct a ‘mini-trial’ in making this determination, but should instead “simply consider whether a defendant’s assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts.” Id. at 159. The motion judge need not be convinced that the defendant presents a winning argument, as that is ultimately an issue for a jury in a criminal trial. State v. Munroe, 2012 WL 2401097 at *6, – N.J. – (N.J. Supreme Ct. June 27, 2012)
The second prong of the Slater test requires the court to review the nature and strength of the defendant’s reasons for the withdrawal of his plea. Id. This factor focuses on “the basic fairness of enforcing a guilty plea” by determining whether the defendant has presented fair and just reasons for his withdrawal. Id. Some examples of fair and just reasons provided by the Slater Court include: the court and prosecutor misinforming the defendant about a material element of the plea negotiation on which the defendant based his plea, a lack of information and understanding of the material terms and consequences of the guilty plea, a defendant’s reasonable expectations under a plea agreement not being met; or a plausible showing of a valid defense against the charges which also credibly demonstrates why that defense was “forgotten or missed” at the time of the plea. Id. at 160. In those cases made after sentencing, the defendant’s motion must be substantiated by strong, compelling reasons. Id. “The longer the delay in raising a reason for withdrawal, or asserting one’s innocence, the greater the level of scrutiny needed to evaluate the claim.” Id. The courts should not assess the nature and strength of the reasons for withdrawal with skepticism, but should instead act with great care and realism, recognizing that defendants oft have little to lose in challenging a guilty plea. Id. The court may rest its ruling, though, on its view of the defendant’s demeanor and candor during the plea and withdrawal hearings.
The third prong of the test requires the judge to decide whether the defendant’s plea was part of a plea bargain. Id. A defendant whose plea was part of a plea bargain will face a heavier burden. Id. As the Court recognized that the vast majority of guilty verdicts arise out of plea agreements, the Court suggests that this factor should not be given great weight in balancing the prongs of the Slater test. Id. at 161. Indeed, the plea bargain question should be given the least weight in the overall analysis. Munroe, 2012 WL 2401097 at *6.
The final prong courts must consider is whether the withdrawal of the defendant’s plea would result in unfair prejudice to the State or an unfair advantage to the accused. Slater, 198 N.J. at 161. The critical inquiry the court must make under this prong is “whether the passage of time has hampered the State’s ability to present important evidence.” Munroe, 2012 WL 2401097 at *6. In so doing, the court should consider the intervening time between the entry of the guilty plea and the hearing of the withdrawal motion. Id. Certain facts will easily demonstrate prejudice to the state, such as the loss or inability to find a needed witness, the faded memories of witnesses on a contested point, or the loss/deterioration of key pieces of evidence. Slater, 198 N.J. at 161.
The court may also consider the State’s efforts leading up to the plea and whether it is fair to require that they be repeated. Id. Court’s should especially consider whether a trial had begun prior to the entrance of the plea. Id. To allow defendants represented by counsel to withdraw voluntary and knowing pleas entered after trial began would greatly impede the administration of justice. Id. at 162. The State, however, is not required to show prejudice in the event that a defendant fails to offer proof in support of the other Slater factors. Id.
Ultimately, in applying these factors, the court must balance the four factors to determine whether the facts meet the “interest of justice” or “manifest injustice” standard depending on the timing of the withdrawal motion. “No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief.” Id. Should the balanced factors produce a showing of manifest injustice or the lower interest of justice standard in those cases where the motion is made before sentencing, the court should grant the defendant’s motion to withdraw his guilty plea.
Wednesday, July 11, 2012
Reporting Requirements under Federal Law and Regulations
Submitted by New Jersey Professional License Defense lawyer, Jeffrey Hark
Under Federal law, health care practitioners (including doctors, dentists, etc.) are required to provide certain government entities with information regarding any malpractice judgments or settlements. Under the Health Care Quality Improvement Act, practitioners and other entities (such as health care providers and insurance companies) are required to report certain adverse information to the National Physicians Data Bank. 42 U.S.C. § 11131-34 (2012). Any entity (including insurance companies) which makes payment under a policy of insurance, self-insurance, or otherwise in settlement or partial settlement of a medical malpractice action or claim must report such a payment to the NPDB. § 11131. Though the original regulations that accompanied this law required even individual practitioners to report payments made for malpractice judgments, that view failed to survive judicial review. In 1993, the Circuit Court of Appeals for the D.C. Circuit held that requiring individual practitioners to report payments made out of their own pockets for their own benefit went beyond the scope of authority granted by Congress. American Dental Association v. Shalala, 3 F.3d 445 (D.C. Cir. 1993). That court held that the law clearly stated that “entities” were required to make reports to the NPDB, but individual persons were not so required. Id. As such, the NPDB altered its regulations, such that while a professional corporation or other business entity comprised of a sole practitioner making a payment must report such a payment, a practitioner or other person making a medical malpractice payment out of personal funds is not required to report that payment to the NPDB. See NPDB guidebook, www.npdb-hipdb.hrsa.gov/resources/NPDBGuidebook.pdf, p. E-10.
Federal regulations require that as to any malpractice settlement, judgment, or arbitration award, along with the biographical information of the practitioner and any insurer involved, several pieces of information be filed with the NPDB. 45 C.F.R. § 60.5, 60.7 (2011). With respect to such settlements or judgments resulting in payment, any entity or insurer must provided the NPDB with the following information regarding the settlement: where the action or claim was filed with an adjudicative body including the case number, the dates on which the acts or omissions which gave rise to the action or claim occurred, the date of the settlement or judgment, the amount paid (including the date of payment and whether the payment was for a settlement or judgment), a description of any conditions or terms attached to the settlement, a description of the acts (or omissions, injuries, or illnesses) upon which the claim was based, and a classification of the acts based upon the reporting code. 45 C.F.R. § 60.7. The regulations specifically define a medical malpractice claim or action as “a written complaint or claim demanding payment based on a physician's, dentist's or other health care practitioner's provision of, or failure to provide health care services, and includes the filing of a cause of action based on the law of tort brought in any State or Federal court or other adjudicative body.” 45 CFR 60.3. Sexual harassment, it is worth noting, is an intentional tort under substantive tort law, as are assault and battery. All such medical malpractice settlement payments must be reported to the board within 30 days of when the payment is made. 45 C.F.R. § 60.5(a).
Federal law also requires State Boards of Medical Examiners to report revocations or suspensions to the NPDB. 42 U.S.C. § 11132. State boards must report the revocation, suspension, or restriction of a physician’s license or any censures, reprimands, or probations placed on the physician relating to his professional competence or conduct. Id. the board would also have to require any surrender of such a license. Id. Likewise, federal law requires health care entities to report on adverse actions taken that affect a physician’s clinical privileges. 42 U.S.C. § 11133. Health care entities must report any adverse action taken affecting the clinical privileges of a physician lasting more than 30 days. Id. Likewise, health care entities must provide the NPDB with information regarding the surrender of the clinical privileges by a physician while such a physician is under investigation relating to possible incompetence or improper professional conduct or surrender occurring in return for the entity not conducting such an investigation or proceeding. Id. at (a)(1)(B). Substantive regulations likewise state that all of the following type of organization must report such adverse actions: hospitals, other health care entities, Boards of Medical Examiner State licensing authorities, professional societies of practitioners which take adverse licensure of professional review actions, State licensing or certification authorities, peer review organizations, and private accreditation entities that take negative actions or findings, as well as insurance companies making payments based upon medical malpractice actions or claims. 45 C.F.R. § 60.2. Any adverse action must be reported within 15 days when the entity took that action. 45 C.F.R. § 60.5(c)-(d). Any suspension of license or similar action must be reported within 30 days. Id. at (b). Ultimately, the information that must be reported to the NPDB includes information on any payment in settlement of a malpractice claim as defined above or any adverse action restricting licensure or privileges.
Federal regulations require that as to any malpractice settlement, judgment, or arbitration award, along with the biographical information of the practitioner and any insurer involved, several pieces of information be filed with the NPDB. 45 C.F.R. § 60.5, 60.7 (2011). With respect to such settlements or judgments resulting in payment, any entity or insurer must provided the NPDB with the following information regarding the settlement: where the action or claim was filed with an adjudicative body including the case number, the dates on which the acts or omissions which gave rise to the action or claim occurred, the date of the settlement or judgment, the amount paid (including the date of payment and whether the payment was for a settlement or judgment), a description of any conditions or terms attached to the settlement, a description of the acts (or omissions, injuries, or illnesses) upon which the claim was based, and a classification of the acts based upon the reporting code. 45 C.F.R. § 60.7. The regulations specifically define a medical malpractice claim or action as “a written complaint or claim demanding payment based on a physician's, dentist's or other health care practitioner's provision of, or failure to provide health care services, and includes the filing of a cause of action based on the law of tort brought in any State or Federal court or other adjudicative body.” 45 CFR 60.3. Sexual harassment, it is worth noting, is an intentional tort under substantive tort law, as are assault and battery. All such medical malpractice settlement payments must be reported to the board within 30 days of when the payment is made. 45 C.F.R. § 60.5(a).
Federal law also requires State Boards of Medical Examiners to report revocations or suspensions to the NPDB. 42 U.S.C. § 11132. State boards must report the revocation, suspension, or restriction of a physician’s license or any censures, reprimands, or probations placed on the physician relating to his professional competence or conduct. Id. the board would also have to require any surrender of such a license. Id. Likewise, federal law requires health care entities to report on adverse actions taken that affect a physician’s clinical privileges. 42 U.S.C. § 11133. Health care entities must report any adverse action taken affecting the clinical privileges of a physician lasting more than 30 days. Id. Likewise, health care entities must provide the NPDB with information regarding the surrender of the clinical privileges by a physician while such a physician is under investigation relating to possible incompetence or improper professional conduct or surrender occurring in return for the entity not conducting such an investigation or proceeding. Id. at (a)(1)(B). Substantive regulations likewise state that all of the following type of organization must report such adverse actions: hospitals, other health care entities, Boards of Medical Examiner State licensing authorities, professional societies of practitioners which take adverse licensure of professional review actions, State licensing or certification authorities, peer review organizations, and private accreditation entities that take negative actions or findings, as well as insurance companies making payments based upon medical malpractice actions or claims. 45 C.F.R. § 60.2. Any adverse action must be reported within 15 days when the entity took that action. 45 C.F.R. § 60.5(c)-(d). Any suspension of license or similar action must be reported within 30 days. Id. at (b). Ultimately, the information that must be reported to the NPDB includes information on any payment in settlement of a malpractice claim as defined above or any adverse action restricting licensure or privileges.
Reporting Requirements under New Jersey Law
Submitted by New Jersey Professional License Defense lawyer, Jeffrey Hark
As with federal law, the law of New Jersey requires practitioners and other health care entities to make certain disclosures to government agencies regarding medical malpractice settlements. Under the substantive state law of New Jersey, there are several provisions which impact the reporting of settlements to the State Board of Medical Examiners or other state entity. Under N.J.S.A. 17:30D-17, any insurer or insurance association which is authorized to issue medical malpractice insurance in New Jersey is required to notify the Medical Practitioner Review Panel of any medical malpractice claim settlement, judgment, or arbitration award. In addition, under the requirements of N.J.S.A. 45:9-19.9, insurers or practitioners must notify the review board of not only medical malpractice claim settlements and adjudications, but also any terminations or denial of or surcharge on the medical malpractice liability insurance coverage of a practitioner. That section also allows the panel to receive referrals from the State Board including complaints alleging professional misconduct, incompetence, negligence or impairment from other health care providers or consumers. N.J.S.A. 45-9-19.9(b). These complaints, however, are not mandatory.
The New Jersey state law also places a burden of informing the state medical board on practitioners themselves. Practitioners are required to update the board as necessary to ensure that their consumer protection profile contains all of the required information. N.J.S.A. 45:9-22.22. While much of that information is biographical, the profile also requires that the practitioner inform the board of a number of pieces of information regarding legal action. First, practitioners must inform the board of any criminal convictions of a sufficient degree (for crimes of the first, second, third or fourth degree) within the most recent ten years. N.J.S.A. 45:9-22.23(a)(6). Second, information must be provided including a description of any final board disciplinary actions within the most recent 10 years, including actions being appealed, though these will be identified as such. Id. at (a)(7). Likewise, the statute requires that the board receive a description of any final disciplinary actions in that same 10 year period from any out of state licensing boards. Id. at (a)(8). The board must also receive a description of any revocation or involuntary restriction of the privileges at a health care facility for reasons related to a practitioner’s competence, misconduct, or impairment. Id. at (a)(9). Such reportable incidents include non-renewal of staff membership, or the restriction of privileges taken in lieu of or in settlement of disciplinary cases within the past 10 years. The State Board defined such restrictions of privileges actions as “a privileges action must be related to the physician’s professional competence or conduct in a way that adversely affects or could adversely affect the patient’s health or welfare.” See http://www.state.nj.us/lps/ca/bme/reportob/obligations.htm. Such actions must be reported to the board and submitted to the National Practitioner’s Data Bank if the action lasts more than 30 days. Id.
Perhaps the most important reporting requirement in the statute is the requirement that all medical malpractice judgments, arbitration awards, and all settlements within the most recent five years be reported to the board. N.J.S.A. 45:9-22.23(a)(10). The law states that the practitioner must report all settlements of medical malpractice claims in which a payment is made to the complaining party within the most recent five years. Id. The reporting of claims and settlements, though, is handled in a specific manner. Pending claims will not be included in the profile nor disclosed to the public, malpractice claims being appealed shall be identified as such, the payment of claims shall be placed into context based on the number of judgments against the practitioner, and any settlements in the profile will be disclaimed. Id. Specifically, all settlement information placed into the record shall contain language to the effect that “Settlement of a claim and, in particular, the dollar amount of the settlement may occur for a variety of reasons, which do not necessarily reflect negatively on the professional competence or conduct of the physician (or podiatrist or optometrist). A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.” Id. at (a)(10)(d). One should note, however, that New Jersey law doesn’t have a single cogent definition of “medical malpractice,” so it is not entirely clear which activities, beyond the obvious, would trigger the reporting requirements. As with the federal laws and regulations, the state of New Jersey ultimately requires the reporting of any medical malpractice claim settlement payment and any adverse action taken against the privileges of the practitioner to the State, and ultimately, to the NPDB.
As with federal law, the law of New Jersey requires practitioners and other health care entities to make certain disclosures to government agencies regarding medical malpractice settlements. Under the substantive state law of New Jersey, there are several provisions which impact the reporting of settlements to the State Board of Medical Examiners or other state entity. Under N.J.S.A. 17:30D-17, any insurer or insurance association which is authorized to issue medical malpractice insurance in New Jersey is required to notify the Medical Practitioner Review Panel of any medical malpractice claim settlement, judgment, or arbitration award. In addition, under the requirements of N.J.S.A. 45:9-19.9, insurers or practitioners must notify the review board of not only medical malpractice claim settlements and adjudications, but also any terminations or denial of or surcharge on the medical malpractice liability insurance coverage of a practitioner. That section also allows the panel to receive referrals from the State Board including complaints alleging professional misconduct, incompetence, negligence or impairment from other health care providers or consumers. N.J.S.A. 45-9-19.9(b). These complaints, however, are not mandatory.
The New Jersey state law also places a burden of informing the state medical board on practitioners themselves. Practitioners are required to update the board as necessary to ensure that their consumer protection profile contains all of the required information. N.J.S.A. 45:9-22.22. While much of that information is biographical, the profile also requires that the practitioner inform the board of a number of pieces of information regarding legal action. First, practitioners must inform the board of any criminal convictions of a sufficient degree (for crimes of the first, second, third or fourth degree) within the most recent ten years. N.J.S.A. 45:9-22.23(a)(6). Second, information must be provided including a description of any final board disciplinary actions within the most recent 10 years, including actions being appealed, though these will be identified as such. Id. at (a)(7). Likewise, the statute requires that the board receive a description of any final disciplinary actions in that same 10 year period from any out of state licensing boards. Id. at (a)(8). The board must also receive a description of any revocation or involuntary restriction of the privileges at a health care facility for reasons related to a practitioner’s competence, misconduct, or impairment. Id. at (a)(9). Such reportable incidents include non-renewal of staff membership, or the restriction of privileges taken in lieu of or in settlement of disciplinary cases within the past 10 years. The State Board defined such restrictions of privileges actions as “a privileges action must be related to the physician’s professional competence or conduct in a way that adversely affects or could adversely affect the patient’s health or welfare.” See http://www.state.nj.us/lps/ca/bme/reportob/obligations.htm. Such actions must be reported to the board and submitted to the National Practitioner’s Data Bank if the action lasts more than 30 days. Id.
Perhaps the most important reporting requirement in the statute is the requirement that all medical malpractice judgments, arbitration awards, and all settlements within the most recent five years be reported to the board. N.J.S.A. 45:9-22.23(a)(10). The law states that the practitioner must report all settlements of medical malpractice claims in which a payment is made to the complaining party within the most recent five years. Id. The reporting of claims and settlements, though, is handled in a specific manner. Pending claims will not be included in the profile nor disclosed to the public, malpractice claims being appealed shall be identified as such, the payment of claims shall be placed into context based on the number of judgments against the practitioner, and any settlements in the profile will be disclaimed. Id. Specifically, all settlement information placed into the record shall contain language to the effect that “Settlement of a claim and, in particular, the dollar amount of the settlement may occur for a variety of reasons, which do not necessarily reflect negatively on the professional competence or conduct of the physician (or podiatrist or optometrist). A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.” Id. at (a)(10)(d). One should note, however, that New Jersey law doesn’t have a single cogent definition of “medical malpractice,” so it is not entirely clear which activities, beyond the obvious, would trigger the reporting requirements. As with the federal laws and regulations, the state of New Jersey ultimately requires the reporting of any medical malpractice claim settlement payment and any adverse action taken against the privileges of the practitioner to the State, and ultimately, to the NPDB.
State v. Palma, Docket No. A-3473-10T3 (App. Div. June 26, 2012)
Published by New Jersey DWI Lawyer, Jeffrey Hark.
On June 26, 2012, the Appellate Division delivered an opinion in State v. Palma which redefined the standards which municipal and law division judges must use in determining whether or not to deliver a custodial sentence for careless driving violations. In Palma, the defendant had been driving in Red Bank, NJ, on February 22, 2010, in the mid afternoon. Slip. Op. at 2. The defendant stopped at a red light at the intersection of Bergen Place and Broad Street. Id. After the light changed to green, the defendant made a left turn and began traveling north on Broad Street. Id. After a few moments, a driver in the southbound lane signalled to the defendant that she had hit a pedestrian, and she stopped her vehicle immediately. Id. Without knowing it, the defendant had struck a pedestrian, who then became lodged under her SUV and was then dragged down Broad Street. Id. The pedestrian would die some two months later of the injuries sustained in the accident. Id.
Blood tests determined that the defendant was not intoxicated at the time of the accident. Id. Likewise, defendant’s voluntarily produced cell phone records did not provide any evidence that she was using her cell phone at the time of the accident. Id. The Appellate Division also stated that there was no evidence which showed that the defendant had intentionally struck the victim, fallen asleep, run the traffic signal, exceeded the speed limit, or had acted recklessly. The State, based on the evidence, charged Palma with careless driving, to which she pled guilty. Id. at 3.
During the municipal court plea hearing, the Municipal Court Judge stated that he possessed knowledge of the case stemming from such sources as newspapers. Id. at 5. The judge then personally read through the evidence that had been provided to the State. Id. at 6. The Judge also mischaracterized the events of this case as someone being “murdered.” Id. The defendant entered a guilty plea and provided the court with a factual basis for that plea, however the municipal court judge decided to make further factual findings based upn his reading of the record including police reports and witness statements. Id. The judge “found” that the defendant was “busilly engaged on her [cell] phone” and was on her phone “all the time.” The judge also made findings including a detailed description of the accident not based upon the defendant’s factual basis, but rather from his own review of discovery materials. Id. These findings, the Appellate Division noted, were not supported by the defendant’s plea allocution or evidential cell phone records. Id. at 7. Though the municipal court judge referenced State v. Moran, 202 N.J. 311 (2010), he did not properly follow the principles found therein, and instead stated that “Someone has to realize that they have to pay... for the consequences of their actions.” Palma, Slip. Op. at 7.
The defendant was sentenced to a 90 day suspension of driving privileges, fines and costs of $241, and a fifteen day jail sentence. Id. at 2. Palma then appealed to the Law Division. At a trial de novo in the Law Division, the suspension was consensually vacated, but the judge imposed the same sentence as the municipal court based upon the record provided by that court. Id. On Review, the Appellate Division, though it characterized the municipal judge’s behavior as “inappropriate,” did not find that there was any actual bias on the part of the Law Division. Id. at 7.
During its consideration, the Law Divison attempted to follow State v. Moran and State v. Henry, 418 N.J. Super. 481 (Law Div. 2010), in passing its sentence. The Appellate Division, in reviewing this sentence, held that the decision to follow Moran and Henry was correct, but that decision was tainted by an insufficient record on which the Law Division’s sentence was based. As such, the Appellate Division remanded the case to the Law Division to develop the record properly and deliver a new sentence in line with Moran and Henry. Palma, slip. Op. at 8.
In Henry, the Law Division held that in sentencing a DUI offender, the court “should apply, with appropriate tailoring, the aggravating and mitigating factors prescribed by the Criminal Code for sentencing of offenses and crimes.” Id. at 8. Though the Criminal Codes factors are not mandated for traffic offenses, they provide appropriate guidelines for a court’s exercise of discretion. Id.
In Moran, the New Jersey Supreme Court directed lower courts to consider a number of factors when determining whether to impose a license suspension for reckless driving. Id. at 9. The Court instructed judges to consider the following factors when determining the amount of time, if any, for which the defendant’s license should be suspended:
[T]he nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage; the defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions; whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation; whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation; whether the defendant's conduct was the result of circumstances unlikely to recur; whether a license suspension would cause excessive hardship to the defendant and/or dependants; and the need for personal deterrence․ Any other relevant factor clearly identified by the court may be considered as well. It is not necessarily the number of factors that apply but the weight to be attributed to a factor or factors.
Palma, Slip. Op. at 10 (quoting Moran, 202 N.J. at 328-29). The Moran Court further stated that a license suspension should only occur in reckless driving cases that present aggravating circumstances. Id.
The Appellate Division held that the Moran sentencing principles apply equally to the question of whether a custodial sentence is appropriate for careless driving, a lesser charge than reckless driving which involves the same requirement that the conduct be “in a manner so as to endanger or be likely to endanger, a person or property.” Id. at 11. Just as a judge must examine any indicia of willful or wanton conduct in reckless driving, so must judges in careless driving identify the behavior that constitutes driving carelessly, without due caution and circumspection. Id.
As with reckless driving, the Appellate Division held that only in careless driving cases that present aggravating circumstances may a defendant receive a custodial sentence or license suspension. Id. Aggravating circumstances must be based upon the facts in the judge’s factual findings and must then be appropriately weighed under the Moran principles. Id. at 11-12. Turning to Palma’s sentencing in the Law Division, the Appellate Division noted that the record on which the Law Division based its sentence was not sufficiently developed to enable a proper Moran weighing. Id. at 12. Indeed, the Law Division’s sentence was based upon the Municipal Court’s findings which were based not on the evidence, but primarily from non-evidentiary sources. Id. Though the victim in this case suffered “the ultimate harm,” the death of the victim is not in and of itself sufficient to decide the issue. Id. The municipal judge did not consider the age of the defendant, the length of time she’d been driving, any discussion of the civil settlement, or the hardship to defendant or her dependents, all of which are to be considered when balancing the facts under Moran. Id.
As such, the Appellate Division held that he Law Division should have further developed the factual record based only upon evidentiary sources before delivering its sentence. Id. at 13. The Appellate Division, therefore, remanded the case and ordered the Law Division to conduct further proceedings which would supplement the record before reconsidering the defendant’s sentence under the Moran principles. Id. Ultimately, the Appellate Division held that a custodial sentence could not be imposed without a showing of aggravating circumstances, which would not be established solely by the death of the victim, properly balanced under Moran. Id.
Blood tests determined that the defendant was not intoxicated at the time of the accident. Id. Likewise, defendant’s voluntarily produced cell phone records did not provide any evidence that she was using her cell phone at the time of the accident. Id. The Appellate Division also stated that there was no evidence which showed that the defendant had intentionally struck the victim, fallen asleep, run the traffic signal, exceeded the speed limit, or had acted recklessly. The State, based on the evidence, charged Palma with careless driving, to which she pled guilty. Id. at 3.
During the municipal court plea hearing, the Municipal Court Judge stated that he possessed knowledge of the case stemming from such sources as newspapers. Id. at 5. The judge then personally read through the evidence that had been provided to the State. Id. at 6. The Judge also mischaracterized the events of this case as someone being “murdered.” Id. The defendant entered a guilty plea and provided the court with a factual basis for that plea, however the municipal court judge decided to make further factual findings based upn his reading of the record including police reports and witness statements. Id. The judge “found” that the defendant was “busilly engaged on her [cell] phone” and was on her phone “all the time.” The judge also made findings including a detailed description of the accident not based upon the defendant’s factual basis, but rather from his own review of discovery materials. Id. These findings, the Appellate Division noted, were not supported by the defendant’s plea allocution or evidential cell phone records. Id. at 7. Though the municipal court judge referenced State v. Moran, 202 N.J. 311 (2010), he did not properly follow the principles found therein, and instead stated that “Someone has to realize that they have to pay... for the consequences of their actions.” Palma, Slip. Op. at 7.
The defendant was sentenced to a 90 day suspension of driving privileges, fines and costs of $241, and a fifteen day jail sentence. Id. at 2. Palma then appealed to the Law Division. At a trial de novo in the Law Division, the suspension was consensually vacated, but the judge imposed the same sentence as the municipal court based upon the record provided by that court. Id. On Review, the Appellate Division, though it characterized the municipal judge’s behavior as “inappropriate,” did not find that there was any actual bias on the part of the Law Division. Id. at 7.
During its consideration, the Law Divison attempted to follow State v. Moran and State v. Henry, 418 N.J. Super. 481 (Law Div. 2010), in passing its sentence. The Appellate Division, in reviewing this sentence, held that the decision to follow Moran and Henry was correct, but that decision was tainted by an insufficient record on which the Law Division’s sentence was based. As such, the Appellate Division remanded the case to the Law Division to develop the record properly and deliver a new sentence in line with Moran and Henry. Palma, slip. Op. at 8.
In Henry, the Law Division held that in sentencing a DUI offender, the court “should apply, with appropriate tailoring, the aggravating and mitigating factors prescribed by the Criminal Code for sentencing of offenses and crimes.” Id. at 8. Though the Criminal Codes factors are not mandated for traffic offenses, they provide appropriate guidelines for a court’s exercise of discretion. Id.
In Moran, the New Jersey Supreme Court directed lower courts to consider a number of factors when determining whether to impose a license suspension for reckless driving. Id. at 9. The Court instructed judges to consider the following factors when determining the amount of time, if any, for which the defendant’s license should be suspended:
[T]he nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage; the defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions; whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation; whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation; whether the defendant's conduct was the result of circumstances unlikely to recur; whether a license suspension would cause excessive hardship to the defendant and/or dependants; and the need for personal deterrence․ Any other relevant factor clearly identified by the court may be considered as well. It is not necessarily the number of factors that apply but the weight to be attributed to a factor or factors.
Palma, Slip. Op. at 10 (quoting Moran, 202 N.J. at 328-29). The Moran Court further stated that a license suspension should only occur in reckless driving cases that present aggravating circumstances. Id.
The Appellate Division held that the Moran sentencing principles apply equally to the question of whether a custodial sentence is appropriate for careless driving, a lesser charge than reckless driving which involves the same requirement that the conduct be “in a manner so as to endanger or be likely to endanger, a person or property.” Id. at 11. Just as a judge must examine any indicia of willful or wanton conduct in reckless driving, so must judges in careless driving identify the behavior that constitutes driving carelessly, without due caution and circumspection. Id.
As with reckless driving, the Appellate Division held that only in careless driving cases that present aggravating circumstances may a defendant receive a custodial sentence or license suspension. Id. Aggravating circumstances must be based upon the facts in the judge’s factual findings and must then be appropriately weighed under the Moran principles. Id. at 11-12. Turning to Palma’s sentencing in the Law Division, the Appellate Division noted that the record on which the Law Division based its sentence was not sufficiently developed to enable a proper Moran weighing. Id. at 12. Indeed, the Law Division’s sentence was based upon the Municipal Court’s findings which were based not on the evidence, but primarily from non-evidentiary sources. Id. Though the victim in this case suffered “the ultimate harm,” the death of the victim is not in and of itself sufficient to decide the issue. Id. The municipal judge did not consider the age of the defendant, the length of time she’d been driving, any discussion of the civil settlement, or the hardship to defendant or her dependents, all of which are to be considered when balancing the facts under Moran. Id.
As such, the Appellate Division held that he Law Division should have further developed the factual record based only upon evidentiary sources before delivering its sentence. Id. at 13. The Appellate Division, therefore, remanded the case and ordered the Law Division to conduct further proceedings which would supplement the record before reconsidering the defendant’s sentence under the Moran principles. Id. Ultimately, the Appellate Division held that a custodial sentence could not be imposed without a showing of aggravating circumstances, which would not be established solely by the death of the victim, properly balanced under Moran. Id.
Wednesday, June 20, 2012
New DWI Bill - New Jersy
New DWI Bill¬
Published by New Jersey DWI Lawyer, ,Jeffrey Hark.
On June 7, 2012, Assemblymen Albano, Milam, Amodeo, Mainor, Burzichelli, and Casagrande introduced into the New Jersey State Assembly a new bill which, if passed, would criminalize repeated DWI offenses within a certain time period. Should the new law pass, any person convicted of a second Driving While Intoxicated or refusal to submit to a breathalyzer test violation (a violation of either N.J.S.A. 39:4-50 or 39:4-50.4a) within sixty days of a first such violation shall, in addition to the normal penalties for those convictions, be presumptively guilty of a crime of the fourth degree; an indictable offense. Assemb. B. 3057, 215th Legislature 2:8-13 (NJ 2012). The bill would also require law enforcement personnel to input any summons for DWI into the appropriate record system within three hours of the end of their shift. Id. at 2:15-19.
In addition to introducing the new fourth degree crime, the bill also sets certain standards regarding the effects of a charge for that crime. In every case where a person is charged with this new crime, the court may require the posting of bail up to $10,000. Id. at 2:21-25. Also, during the bail hearing for those charged with this new crime, the court will be required to suspend any “license certificate or any nonresident reciprocity privilege to operate any motor vehicle or motorized bicycle held by the individual charged.” Id. at 2:26-31. The bill would also require the court at the bail hearing to issue a temporary order prohibiting the defendant from obtaining a license to operate a motor vehicle or bicycle in New Jersey. Id. at 2:31-33. The bill, if passed, would take effect immediately. Id. at 2:35.
In their introductory statement, the sponsors of the bill noted the effect the bill would have upon the amount of bail that may be enforced for a crime of the fourth degree and discussed the effects of the bill, but did not elaborate on the bill’s purpose or source. Id. at 2:40-47, 3:1-30. Local reporters have noted, however, that the bill arose out of the case of Anderson Sotomayor, of Vineland, who was charged with five DWIs in thirty-eight days, including an event wherein Sotomayor crashed into a parked police vehicle. See generally New Jersey Press Media, Tougher DUI bill moves forward, COURIER POST ONLINE (June 8, 2012, 1:32 PM), http://www.courierpostonline.com/article/20120608/NEWS01/306080016/Tougher-DUI-bill-moves-forward; Jim Cook, Jr., Criminalizing repeat drunken driving is aim of N.J. Assembly bill after Vineland man’s fifth DWI, NJ.COM (June 8, 2012, 1:32 PM), http://www.nj.com/cumberland/index.ssf/2012/06/nj_assemblymen_sponsoring_bill.html; Tougher DWI bill moves forward, THE DAILY JOURNAL (June 8, 2012, 1:32 PM), http://www.thedailyjournal.com/article/20120608/NEWS01/306080033. The bill was approved by the Assembly Law and Public Safety Committee in a 10-1 vote on Thursday, June 7, 2012. Id. The bill will now move to the full Assembly for consideration, while a sister bill awaits consideration by the New Jersey Senate Law and Public Safety committee. Id.
Published by New Jersey DWI Lawyer, ,Jeffrey Hark.
On June 7, 2012, Assemblymen Albano, Milam, Amodeo, Mainor, Burzichelli, and Casagrande introduced into the New Jersey State Assembly a new bill which, if passed, would criminalize repeated DWI offenses within a certain time period. Should the new law pass, any person convicted of a second Driving While Intoxicated or refusal to submit to a breathalyzer test violation (a violation of either N.J.S.A. 39:4-50 or 39:4-50.4a) within sixty days of a first such violation shall, in addition to the normal penalties for those convictions, be presumptively guilty of a crime of the fourth degree; an indictable offense. Assemb. B. 3057, 215th Legislature 2:8-13 (NJ 2012). The bill would also require law enforcement personnel to input any summons for DWI into the appropriate record system within three hours of the end of their shift. Id. at 2:15-19.
In addition to introducing the new fourth degree crime, the bill also sets certain standards regarding the effects of a charge for that crime. In every case where a person is charged with this new crime, the court may require the posting of bail up to $10,000. Id. at 2:21-25. Also, during the bail hearing for those charged with this new crime, the court will be required to suspend any “license certificate or any nonresident reciprocity privilege to operate any motor vehicle or motorized bicycle held by the individual charged.” Id. at 2:26-31. The bill would also require the court at the bail hearing to issue a temporary order prohibiting the defendant from obtaining a license to operate a motor vehicle or bicycle in New Jersey. Id. at 2:31-33. The bill, if passed, would take effect immediately. Id. at 2:35.
In their introductory statement, the sponsors of the bill noted the effect the bill would have upon the amount of bail that may be enforced for a crime of the fourth degree and discussed the effects of the bill, but did not elaborate on the bill’s purpose or source. Id. at 2:40-47, 3:1-30. Local reporters have noted, however, that the bill arose out of the case of Anderson Sotomayor, of Vineland, who was charged with five DWIs in thirty-eight days, including an event wherein Sotomayor crashed into a parked police vehicle. See generally New Jersey Press Media, Tougher DUI bill moves forward, COURIER POST ONLINE (June 8, 2012, 1:32 PM), http://www.courierpostonline.com/article/20120608/NEWS01/306080016/Tougher-DUI-bill-moves-forward; Jim Cook, Jr., Criminalizing repeat drunken driving is aim of N.J. Assembly bill after Vineland man’s fifth DWI, NJ.COM (June 8, 2012, 1:32 PM), http://www.nj.com/cumberland/index.ssf/2012/06/nj_assemblymen_sponsoring_bill.html; Tougher DWI bill moves forward, THE DAILY JOURNAL (June 8, 2012, 1:32 PM), http://www.thedailyjournal.com/article/20120608/NEWS01/306080033. The bill was approved by the Assembly Law and Public Safety Committee in a 10-1 vote on Thursday, June 7, 2012. Id. The bill will now move to the full Assembly for consideration, while a sister bill awaits consideration by the New Jersey Senate Law and Public Safety committee. Id.
Monday, June 18, 2012
Blog Post: State v. Alnesha Minitee/State v. Darnell Bland (A-70/71-10)Decided June 14, 2012 __ N.J. __ (June 14, 2012)
Posted by: New Jersey Criminal Lawyer, Jeffery Hark
On June 14, 2012, the New Jersey Supreme Court delivered an opinion in State v. Minitee/State v. Brand, in which the Court redefined the standard for exigent circumstances in regards to the vehicle exception to New Jersey’s search warrant requirements. The Court reversed the ruling of the Appellate Division, holding that exigent circumstances can excuse a warrantless search even when that search takes place several hours after the vehicle in question had been recovered and towed to a safe location.
In Minitee, the defendants were convicted for robbery arising out of a string of events that occurred on January 24, 2003. Just after 10:30 p.m. on that date, in Fort Lee, NJ, police officers reported to the KOA spa on an armed robbery call. State v. Minitee, __ N.J. __, A-70-10, Slip. Op. 4 (June 14, 2012). Witnesses indicated to police that red SUV waiting at a traffic light near the spa which they stated contained the armed robbers who had just left. Id. The officer ordered the passengers out of the SUV. Id. Only one of the passengers, a man later identified as defendant Brand, exited the vehicle, dropped a purse and weapon when ordered, and then fled. Id. The officer continued to order the others out of the vehicle rather than chase Brand, but the traffic light changed to green and the SUV drove away. Id.
After the initial officer radioed in an identification of the red SUV, other officers spotted the vehicle and followed it to the end of a dead end street. Upon arriving at the vehicle, police found two women standing next to the vehicle, defendant Minitee and Liakesha Jones. Id. The women told police that they had been carjacked by two black males who had fled on foot. Id. at 5. The officer ordered them to the ground and waited for backup. When backup arrived, officers looked into the open door of the vehicle and saw, in plain view, two rolls of duct tape on the rear passenger seat and floor. Id. Knowing that the robbers had used duct tape to restrain the victims, the officers took Minitee and Jones to police headquarters and had the vehicle towed there as well by an independent towing company. Id.
Several hours passed between the towing of the vehicle and its being searched by the Bureau of Criminal Investigation at police headquarters, and the vehicle was stored in a secure sally port for the intervening period of time. Id. at 6 (The majority opinion states that the search occurred “after some period of time, the exact length of which cannot be determined from the record,” while the dissent frames the same period as “more than three hours”). Investigators searched the van without acquiring a search warrant. Id. at 7. The search of the vehicle produced classified ads from the Star Ledger for massage parlors, which had been marked with either an asterisk, a “no” or “next;” several rolls of duct tape as well as electrical tape, several hats and a mask, a cell phone, handwritten directions, a checkbook in the name of Anthony Herns, and a videotape of a massage parlor robbery from East Brunswick, NJ. Id. at 6.
During the time period between the robbery at 10:30 and the conclusion of the vehicle search at just after 2:00 a.m., multiple pursuits were in progress as police searched for the men who had fled on foot. Id. One of the fleeing men was found and arrested a few miles away in another town, while defendant Bland would not be arrested until months later. Id. at 6-7. Likewise, after his arrest, the Almustafa Baldwin, the fleeing man who had been caught, told police that he had discarded a weapon while fleeing and reneged on a promise to take police to the weapon’s location. As such, Fort Lee Police as well as the police from several neighboring towns, all searched for the weapon through the night. Id. at 7. Testimony also revealed that the Bureau of Criminal Investigation had been required to search several sites during the intervening period including the spa, the area where the gun had allegedly been dropped, another site where a jacket had been dropped by a fleeing robber, and the site where the SUV had been found. Id.
At trial, the judge determined that there were exigent circumstances. As such, the trial court ruled that the warrantless search was proper. On appeal, the Appellate Division held that under State v. Pena-Flores, 198 N.J. 6 (2009), the circumstances were not sufficient to meet the requirements for a proper warrantless search and reversed. The State appealed, arguing that State v. Martin, 87 N.J. 561 (1981) was more analogous to the facts of this case and therefore should control. Id. at 8. Likewise, the state argued that as Pena-Flores announced a new rule, it should not be applied retroactively to actions which occurred in 2003.
The Court, in its analysis, noted that both the Federal and State constitutions guarantee an individual’s right to be secure against unreasonable searches, and that this requirement is so important that warrantless searches are presumed to be invalid. Id. at 11. When such a search is challenged, the State bears the burden of establishing by a preponderance of the evidence that the search fits within the scope of one of the enumerated exceptions. Id. at 12. The Court suggested that there were only two exceptions that could possibly apply here: the search incident to arrest exception and the automobile exception. Id. The Court quickly rejected the search incident to arrest exception, as that only provides the police with the ability to search the area within the immediate grasp of the defendant within which the defendant may grab a weapon or destroy evidence. Id.
Turning to the automobile exception, the Court noted that New jersey does not follow the federal courts in its understanding of the automobile exception. Id. at 13. While federal law requires only that the vehicle be mobile and probably cause exist that the vehicle contains evidence, New Jersey also requires that there be exigent circumstances for the automobile exception to the warrant requirement to apply. Id. The Court noted that the New Jersey Constitution provides greater protections than the U.S. Constitution, and as such the existence of exigent circumstances are an essential element of the exception. Id. at 14.
The Court reiterated that under New Jersey law, the automobile exception requires an unplanned, unforeseen stop; probably cause to believe that the automobile contains contraband or evidence of criminality beyond mere suspicion; and exigent circumstances making it impracticable to obtain a warrant. Id. at 15-16. The Court held that though the factors enumerated in Pena-Flores are illustrative of the sorts of circumstances that could support a finding of exigent circumstances, that list was not exhaustive. Id. at 17. The Appellate Division’s conclusion that the Pena-Flores factors did not support a finding here, then, was not appropriate. Id.
In the instant matter, the Court held that there were other factors, which had not been relevant to Pena-Flores which confronted the Fort Lee Police that made obtaining a warrant impracticable. Specifically, the majority looked to the armed robbery, that two of the perpetrators were on the run and possibly armed, the large multiple-municipality search for the perpetrators, the attempt to find the weapon discarded by Baldwin before an innocent bystander might find it, and the conditions in which the SUV was initially discovered. Id. at 17-18. As the van was found in a dark area on a winter night with poor lighting, and as the van likely held important evidence, the Court argued that the police had no assurances that the fleeing defendants were not in the area with weapons, and as such the decision to tow the vehicle to a safe place would not preclude a finding of exigent circumstances under State v. Martin. Id. 18.
Finding Martin analogous and Pena-Flores easily distinguishable, the Court argued that Martin provided the proper framework for considering this matter. Id. In Martin, the Court had faced a similar situation wherein shortly after an armed robbery, while the perpetrators were at large, police found the vehicle of one of the robbers in a dimly lit area and towed the vehicle to a safe area before searching the vehicle. Id. at 19. The Minitee Court held that just as the towing of the vehicle in Martin was not fatal to the exigent circumstances in that case, nor does the passing of time between the towing of the vehicle and its search in the instant matter. Id. The Court instead held that the circumstances, including the multiple searches, the time of night, the missing weapon, and the multiple demands facing the Bureau of Criminal Investigation, all made the warrantless search of the SUV in this matter reasonable. Id. at 19-20. As only those searches which are objectively unreasonable “run afoul of constitutional principles,” the circumstances in this case are sufficient to meet the requirements of the automobile exception to the warrant requirement. Id. As the search itself was proper, the Court had no need to address the issues of proper standing that the State had argued in regards to defendant Bland. As the search of the SUV met the automobile exception to the warrant requirement, the Court reversed the Appellate Division’s decision and reinstated the convictions of Minitee and Bland.
_________________
[1] The sole dissenting justice, Justice Albin, did not dispute most of the majority’s argument, but instead focused on the three plus hour gap between the recovery of the SUV and its search. As the State, in Justice Albin’s opinion, had to prove that it was impracticable to obtain a warrant and provided no evidence of such, the at least three hour gap should be fatal to a finding of exigent circumstances. Justice Albin otherwise agreed with the majority stating that “I do not doubt that a search of the SUV at the scene or even its immediate search at headquarters, provided that the vehicle was promptly towed, would have fallen within the exigent-circumstances exception to the warrant requirement.” Justice Albin’s opinion at 7.
Posted by: New Jersey Criminal Lawyer, Jeffery Hark
On June 14, 2012, the New Jersey Supreme Court delivered an opinion in State v. Minitee/State v. Brand, in which the Court redefined the standard for exigent circumstances in regards to the vehicle exception to New Jersey’s search warrant requirements. The Court reversed the ruling of the Appellate Division, holding that exigent circumstances can excuse a warrantless search even when that search takes place several hours after the vehicle in question had been recovered and towed to a safe location.
In Minitee, the defendants were convicted for robbery arising out of a string of events that occurred on January 24, 2003. Just after 10:30 p.m. on that date, in Fort Lee, NJ, police officers reported to the KOA spa on an armed robbery call. State v. Minitee, __ N.J. __, A-70-10, Slip. Op. 4 (June 14, 2012). Witnesses indicated to police that red SUV waiting at a traffic light near the spa which they stated contained the armed robbers who had just left. Id. The officer ordered the passengers out of the SUV. Id. Only one of the passengers, a man later identified as defendant Brand, exited the vehicle, dropped a purse and weapon when ordered, and then fled. Id. The officer continued to order the others out of the vehicle rather than chase Brand, but the traffic light changed to green and the SUV drove away. Id.
After the initial officer radioed in an identification of the red SUV, other officers spotted the vehicle and followed it to the end of a dead end street. Upon arriving at the vehicle, police found two women standing next to the vehicle, defendant Minitee and Liakesha Jones. Id. The women told police that they had been carjacked by two black males who had fled on foot. Id. at 5. The officer ordered them to the ground and waited for backup. When backup arrived, officers looked into the open door of the vehicle and saw, in plain view, two rolls of duct tape on the rear passenger seat and floor. Id. Knowing that the robbers had used duct tape to restrain the victims, the officers took Minitee and Jones to police headquarters and had the vehicle towed there as well by an independent towing company. Id.
Several hours passed between the towing of the vehicle and its being searched by the Bureau of Criminal Investigation at police headquarters, and the vehicle was stored in a secure sally port for the intervening period of time. Id. at 6 (The majority opinion states that the search occurred “after some period of time, the exact length of which cannot be determined from the record,” while the dissent frames the same period as “more than three hours”). Investigators searched the van without acquiring a search warrant. Id. at 7. The search of the vehicle produced classified ads from the Star Ledger for massage parlors, which had been marked with either an asterisk, a “no” or “next;” several rolls of duct tape as well as electrical tape, several hats and a mask, a cell phone, handwritten directions, a checkbook in the name of Anthony Herns, and a videotape of a massage parlor robbery from East Brunswick, NJ. Id. at 6.
During the time period between the robbery at 10:30 and the conclusion of the vehicle search at just after 2:00 a.m., multiple pursuits were in progress as police searched for the men who had fled on foot. Id. One of the fleeing men was found and arrested a few miles away in another town, while defendant Bland would not be arrested until months later. Id. at 6-7. Likewise, after his arrest, the Almustafa Baldwin, the fleeing man who had been caught, told police that he had discarded a weapon while fleeing and reneged on a promise to take police to the weapon’s location. As such, Fort Lee Police as well as the police from several neighboring towns, all searched for the weapon through the night. Id. at 7. Testimony also revealed that the Bureau of Criminal Investigation had been required to search several sites during the intervening period including the spa, the area where the gun had allegedly been dropped, another site where a jacket had been dropped by a fleeing robber, and the site where the SUV had been found. Id.
At trial, the judge determined that there were exigent circumstances. As such, the trial court ruled that the warrantless search was proper. On appeal, the Appellate Division held that under State v. Pena-Flores, 198 N.J. 6 (2009), the circumstances were not sufficient to meet the requirements for a proper warrantless search and reversed. The State appealed, arguing that State v. Martin, 87 N.J. 561 (1981) was more analogous to the facts of this case and therefore should control. Id. at 8. Likewise, the state argued that as Pena-Flores announced a new rule, it should not be applied retroactively to actions which occurred in 2003.
The Court, in its analysis, noted that both the Federal and State constitutions guarantee an individual’s right to be secure against unreasonable searches, and that this requirement is so important that warrantless searches are presumed to be invalid. Id. at 11. When such a search is challenged, the State bears the burden of establishing by a preponderance of the evidence that the search fits within the scope of one of the enumerated exceptions. Id. at 12. The Court suggested that there were only two exceptions that could possibly apply here: the search incident to arrest exception and the automobile exception. Id. The Court quickly rejected the search incident to arrest exception, as that only provides the police with the ability to search the area within the immediate grasp of the defendant within which the defendant may grab a weapon or destroy evidence. Id.
Turning to the automobile exception, the Court noted that New jersey does not follow the federal courts in its understanding of the automobile exception. Id. at 13. While federal law requires only that the vehicle be mobile and probably cause exist that the vehicle contains evidence, New Jersey also requires that there be exigent circumstances for the automobile exception to the warrant requirement to apply. Id. The Court noted that the New Jersey Constitution provides greater protections than the U.S. Constitution, and as such the existence of exigent circumstances are an essential element of the exception. Id. at 14.
The Court reiterated that under New Jersey law, the automobile exception requires an unplanned, unforeseen stop; probably cause to believe that the automobile contains contraband or evidence of criminality beyond mere suspicion; and exigent circumstances making it impracticable to obtain a warrant. Id. at 15-16. The Court held that though the factors enumerated in Pena-Flores are illustrative of the sorts of circumstances that could support a finding of exigent circumstances, that list was not exhaustive. Id. at 17. The Appellate Division’s conclusion that the Pena-Flores factors did not support a finding here, then, was not appropriate. Id.
In the instant matter, the Court held that there were other factors, which had not been relevant to Pena-Flores which confronted the Fort Lee Police that made obtaining a warrant impracticable. Specifically, the majority looked to the armed robbery, that two of the perpetrators were on the run and possibly armed, the large multiple-municipality search for the perpetrators, the attempt to find the weapon discarded by Baldwin before an innocent bystander might find it, and the conditions in which the SUV was initially discovered. Id. at 17-18. As the van was found in a dark area on a winter night with poor lighting, and as the van likely held important evidence, the Court argued that the police had no assurances that the fleeing defendants were not in the area with weapons, and as such the decision to tow the vehicle to a safe place would not preclude a finding of exigent circumstances under State v. Martin. Id. 18.
Finding Martin analogous and Pena-Flores easily distinguishable, the Court argued that Martin provided the proper framework for considering this matter. Id. In Martin, the Court had faced a similar situation wherein shortly after an armed robbery, while the perpetrators were at large, police found the vehicle of one of the robbers in a dimly lit area and towed the vehicle to a safe area before searching the vehicle. Id. at 19. The Minitee Court held that just as the towing of the vehicle in Martin was not fatal to the exigent circumstances in that case, nor does the passing of time between the towing of the vehicle and its search in the instant matter. Id. The Court instead held that the circumstances, including the multiple searches, the time of night, the missing weapon, and the multiple demands facing the Bureau of Criminal Investigation, all made the warrantless search of the SUV in this matter reasonable. Id. at 19-20. As only those searches which are objectively unreasonable “run afoul of constitutional principles,” the circumstances in this case are sufficient to meet the requirements of the automobile exception to the warrant requirement. Id. As the search itself was proper, the Court had no need to address the issues of proper standing that the State had argued in regards to defendant Bland. As the search of the SUV met the automobile exception to the warrant requirement, the Court reversed the Appellate Division’s decision and reinstated the convictions of Minitee and Bland.
_________________
[1] The sole dissenting justice, Justice Albin, did not dispute most of the majority’s argument, but instead focused on the three plus hour gap between the recovery of the SUV and its search. As the State, in Justice Albin’s opinion, had to prove that it was impracticable to obtain a warrant and provided no evidence of such, the at least three hour gap should be fatal to a finding of exigent circumstances. Justice Albin otherwise agreed with the majority stating that “I do not doubt that a search of the SUV at the scene or even its immediate search at headquarters, provided that the vehicle was promptly towed, would have fallen within the exigent-circumstances exception to the warrant requirement.” Justice Albin’s opinion at 7.
Sunday, June 10, 2012
Malpractice Reporting Requirements under New Jersey Law
As with federal law, the law of New Jersey requires practitioners and other health care entities to make certain disclosures to government agencies regarding medical malpractice settlements. Under the substantive state law of New Jersey, there are several provisions which impact the reporting of settlements to the State Board of Medical Examiners or other state entity. Under N.J.S.A. 17:30D-17, any insurer or insurance association which is authorized to issue medical malpractice insurance in New Jersey is required to notify the Medical Practitioner Review Panel of any medical malpractice claim settlement, judgment, or arbitration award. In addition, under the requirements of N.J.S.A. 45:9-19.9, insurers or practitioners must notify the review board of not only medical malpractice claim settlements and adjudications, but also any terminations or denial of or surcharge on the medical malpractice liability insurance coverage of a practitioner. That section also allows the panel to receive referrals from the State Board including complaints alleging professional misconduct, incompetence, negligence or impairment from other health care providers or consumers. N.J.S.A. 45-9-19.9(b). These complaints, however, are not mandatory.
The New Jersey state law also places a burden of informing the state medical board on practitioners themselves. Practitioners are required to update the board as necessary to ensure that their consumer protection profile contains all of the required information. N.J.S.A. 45:9-22.22. While much of that information is biographical, the profile also requires that the practitioner inform the board of a number of pieces of information regarding legal action. First, practitioners must inform the board of any criminal convictions of a sufficient degree (for crimes of the first, second, third or fourth degree) within the most recent ten years. N.J.S.A. 45:9-22.23(a)(6). Second, information must be provided including a description of any final board disciplinary actions within the most recent 10 years, including actions being appealed, though these will be identified as such. Id. at (a)(7). Likewise, the statute requires that the board receive a description of any final disciplinary actions in that same 10 year period from any out of state licensing boards. Id. at (a)(8).
The board must also receive a description of any revocation or involuntary restriction of the privileges at a health care facility for reasons related to a practitioner’s competence, misconduct, or impairment. Id. at (a)(9). Such reportable incidents include non-renewal of staff membership, or the restriction of privileges taken in lieu of or in settlement of disciplinary cases within the past 10 years. The State Board defined such restrictions of privileges actions as “a privileges action must be related to the physician’s professional competence or conduct in a way that adversely affects or could adversely affect the patient’s health or welfare.” See http://www.state.nj.us/lps/ca/bme/reportob/obligations.htm. Such actions must be reported to the board and submitted to the National Practitioner’s Data Bank if the action lasts more than 30 days. Id.
Perhaps the most important reporting requirement in the statute is the requirement that all medical malpractice judgments, arbitration awards, and all settlements within the most recent five years be reported to the board. N.J.S.A. 45:9-22.23(a)(10). The law states that the practitioner must report all settlements of New Jersey medical malpractice claims in which a payment is made to the complaining party within the most recent five years. Id. The reporting
of claims and settlements, though, is handled in a specific manner. Pending claims will not be included in the profile nor disclosed to the public, malpractice claims being appealed shall be identified as such, the payment of claims shall be placed into context based on the number of judgments against the practitioner, and any settlements in the profile will be disclaimed. Id.
Specifically, all settlement information placed into the record shall contain language to the effect that “Settlement of a claim and, in particular, the dollar amount of the settlement may occur for a variety of reasons, which do not necessarily reflect negatively on the professional competence or conduct of the physician (or podiatrist or optometrist). A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.” Id. at (a)(10)(d). One should note, however, that New Jersey law doesn’t have a single cogent definition of “medical malpractice,” so it is not entirely clear which activities, beyond the obvious, would trigger the reporting requirements. As with the federal laws and regulations, the state of New Jersey ultimately requires the reporting of any medical malpractice claim settlement payment and any adverse action taken against the privileges of the
practitioner to the State, and ultimately, to the NPDB.
The New Jersey state law also places a burden of informing the state medical board on practitioners themselves. Practitioners are required to update the board as necessary to ensure that their consumer protection profile contains all of the required information. N.J.S.A. 45:9-22.22. While much of that information is biographical, the profile also requires that the practitioner inform the board of a number of pieces of information regarding legal action. First, practitioners must inform the board of any criminal convictions of a sufficient degree (for crimes of the first, second, third or fourth degree) within the most recent ten years. N.J.S.A. 45:9-22.23(a)(6). Second, information must be provided including a description of any final board disciplinary actions within the most recent 10 years, including actions being appealed, though these will be identified as such. Id. at (a)(7). Likewise, the statute requires that the board receive a description of any final disciplinary actions in that same 10 year period from any out of state licensing boards. Id. at (a)(8).
The board must also receive a description of any revocation or involuntary restriction of the privileges at a health care facility for reasons related to a practitioner’s competence, misconduct, or impairment. Id. at (a)(9). Such reportable incidents include non-renewal of staff membership, or the restriction of privileges taken in lieu of or in settlement of disciplinary cases within the past 10 years. The State Board defined such restrictions of privileges actions as “a privileges action must be related to the physician’s professional competence or conduct in a way that adversely affects or could adversely affect the patient’s health or welfare.” See http://www.state.nj.us/lps/ca/bme/reportob/obligations.htm. Such actions must be reported to the board and submitted to the National Practitioner’s Data Bank if the action lasts more than 30 days. Id.
Perhaps the most important reporting requirement in the statute is the requirement that all medical malpractice judgments, arbitration awards, and all settlements within the most recent five years be reported to the board. N.J.S.A. 45:9-22.23(a)(10). The law states that the practitioner must report all settlements of New Jersey medical malpractice claims in which a payment is made to the complaining party within the most recent five years. Id. The reporting
of claims and settlements, though, is handled in a specific manner. Pending claims will not be included in the profile nor disclosed to the public, malpractice claims being appealed shall be identified as such, the payment of claims shall be placed into context based on the number of judgments against the practitioner, and any settlements in the profile will be disclaimed. Id.
Specifically, all settlement information placed into the record shall contain language to the effect that “Settlement of a claim and, in particular, the dollar amount of the settlement may occur for a variety of reasons, which do not necessarily reflect negatively on the professional competence or conduct of the physician (or podiatrist or optometrist). A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.” Id. at (a)(10)(d). One should note, however, that New Jersey law doesn’t have a single cogent definition of “medical malpractice,” so it is not entirely clear which activities, beyond the obvious, would trigger the reporting requirements. As with the federal laws and regulations, the state of New Jersey ultimately requires the reporting of any medical malpractice claim settlement payment and any adverse action taken against the privileges of the
practitioner to the State, and ultimately, to the NPDB.
Wednesday, June 6, 2012
Green v. Bittner, 85 N.J. 1 (1980)
Wrongful Death and Recoverable Damages
In Green v. Bittner, the New Jersey Supreme Court expanded the scope of recoverable damages arising out of a parent’s wrongful death suit in the death of their child. The Court, reflecting upon a case wherein the jury had effectively decided that the value of a young woman’s life to her survivors was effectively zero, held that “when parents sue for the wrongful death of their child, damages should not be limited to the well-known elements of pecuniary loss such as the loss of the value of the child’s anticipated help with household chores, or the loss of anticipated direct financial contributions by the child after he or she becomes a wage earner.” Finding the jury award to be a miscarriage of justice, the Court held that juries should award damages for both the parent’s loss of companionship when they grow older as well as the advice and guidance that accompanies that companionship. Parents, the court believed, should have the same scope of recovery for the death of a child as that child would potentially have for the death of a parent.
Following in the footsteps of a Michigan Supreme Court case, Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960), the court embraced the view that “the era of child labor, and hence the fixation with earnings and services was over.” In its place, the Court held that the worth of a child’s life should instead be calculated “according to his function as part of an ongoing family unit.” As such, the court argued, parents, as with children, should be able to recover both for the value of the companionship a child may offer in their dotage as well as the loss of the guidance and advice that would accompany that companionship. In so expanding the recoverable damages, the Court argued that it was simply laying bare what was already the spirit of New Jersey wrongful death law, and simply making that spirit explicit. As such, the Court repeatedly noted that allowing for these types of recovery would not open the door for the recovery of emotional damages, but rather that the type of advice for which one could recover must be of a kind with those that “could be purchased from a business adviser, a therapist, or a trained counselor, for instance. Likewise, the court limited the recovery for companionship to services “substantially equivalent to those provided by the “companions” often hired today by the aged or infirm.”
Because these expanded damages had to be limited to their pecuniary, and not emotional, value, the Court also provided that the use of an expert to quantify these damages would be appropriate and of great aid to a jury. Looking back upon those cases where similar damages were allowed, the Court stated that juries should not be left to conjecture on such matters. While the Court did not mandate the use of such an expert to answer the question of the value of these damages, they did argue that it was “obviously desirable” for plaintiffs to provide a jury with expert guidance on the pecuniary value question.
Ultimately, the Court felt that the dramatic changes in longevity that have occurred since the establishment of the wrongful death cause of action required that parents be allowed to recover for companionship and advice damages. As the Court stated “the proportion of people age 65 and over in our population continues to grow... [the elderly] parents’ need is real, and when a middle-aged son or daughter is not there because of a wrongful death, a prospective pecuniary advantage of the aged or infirm parent has been lost.” Allowing for these damages in the death of a child, as well as expert testimony to guide the jury, the Court reasoned, would allow juries to deliver just compensation to grieving parents in concert with a judge’s charge rather than justice in such matters being dependent upon a jury’s willingness to strive for “some kind of justice despite the judge’s charge.”
Following in the footsteps of a Michigan Supreme Court case, Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960), the court embraced the view that “the era of child labor, and hence the fixation with earnings and services was over.” In its place, the Court held that the worth of a child’s life should instead be calculated “according to his function as part of an ongoing family unit.” As such, the court argued, parents, as with children, should be able to recover both for the value of the companionship a child may offer in their dotage as well as the loss of the guidance and advice that would accompany that companionship. In so expanding the recoverable damages, the Court argued that it was simply laying bare what was already the spirit of New Jersey wrongful death law, and simply making that spirit explicit. As such, the Court repeatedly noted that allowing for these types of recovery would not open the door for the recovery of emotional damages, but rather that the type of advice for which one could recover must be of a kind with those that “could be purchased from a business adviser, a therapist, or a trained counselor, for instance. Likewise, the court limited the recovery for companionship to services “substantially equivalent to those provided by the “companions” often hired today by the aged or infirm.”
Because these expanded damages had to be limited to their pecuniary, and not emotional, value, the Court also provided that the use of an expert to quantify these damages would be appropriate and of great aid to a jury. Looking back upon those cases where similar damages were allowed, the Court stated that juries should not be left to conjecture on such matters. While the Court did not mandate the use of such an expert to answer the question of the value of these damages, they did argue that it was “obviously desirable” for plaintiffs to provide a jury with expert guidance on the pecuniary value question.
Ultimately, the Court felt that the dramatic changes in longevity that have occurred since the establishment of the wrongful death cause of action required that parents be allowed to recover for companionship and advice damages. As the Court stated “the proportion of people age 65 and over in our population continues to grow... [the elderly] parents’ need is real, and when a middle-aged son or daughter is not there because of a wrongful death, a prospective pecuniary advantage of the aged or infirm parent has been lost.” Allowing for these damages in the death of a child, as well as expert testimony to guide the jury, the Court reasoned, would allow juries to deliver just compensation to grieving parents in concert with a judge’s charge rather than justice in such matters being dependent upon a jury’s willingness to strive for “some kind of justice despite the judge’s charge.”
Please visit the site of New Jersey Criminal lawyer, Jeffrey Hark for more information on criminal matters in NJ and more cases like this.
Thursday, April 26, 2012
State v. Jones (DOCKET NO. A-5186-10T2)
On April 17, 2012, the Appellate Division ruled that an expert opinion related to the possession of cocaine by the defendant with intent to distribute cocaine was improper because it was expressed in a manner directly commenting on the defendant's guilt. Generally, the opinion of an expert in a drug distribution case should be expressed in hypothetical terms. However, in Jones, the expert specifically used the defendant by name in his testimony and expressed a direct opinion as to defendant's obvious guilt. The Appellate Division found this to be plain error and vacated defendant's conviction. This case provides an excellent review of the parameters for the use of expert testimony in a criminal drug distribution prosecution.
View the full case including Facts, Procedural History, Holding, At Trial and On Appeal.
View the full case including Facts, Procedural History, Holding, At Trial and On Appeal.
Monday, April 23, 2012
State v. Rose, 206 N.J. 141 (2011)
Facts:
• Defendant Zarik Rose was incarcerated in 1995 on charges relating to the attempted murder of Charles Mosely.
• While awaiting trial, Defendant allegedly told one of the State's witnesses against him that he wanted to have Mosely "whacked," and that Defendant solicited the witness to kill Mosely.
• At trial, the State moved to admit Defendant's comment. The trial court found some of the evidence admissible as "res gestae."
• During the trial, the court provided instructions to guide the jury's use of that evidence.
• On appeal to the Supreme Court, Defendant argued that all evidence relating to his incarceration on attempted murder charges was improperly admitted at trial.
Analysis:
• The underlying danger of admitting other-crime evidence is that the jury may convict the defendant because he is a bad person in general. The prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.
• Rule 404(b) seeks to strike a balance between the prejudice to a defendant that is inherent in other-crimes evidence and the recognition that the evidence may be highly relevant to prove a defendant's guilt of the crime charged. Evidence of uncharged misconduct would be inadmissible if offered solely to prove the defendant's criminal disposition, but if that misconduct evidence is material to a non-propensity purpose such as those listed in Rule 404(b), it may be admissible if its probative value is not outweighed by the risk of prejudice.
• The court relied on State v. Cofield, 127 N.J. 328 (1992). In Cofield, the Court articulated the following four-part test to determine if evidence of uncharged misconduct is admissible at trial:
1. The evidence of the other crime must be admissible as relevant to a material issue;
• the evidence must have a tendency in reason to prove or disprove any fact of consequence to the determination of the action. The evidence must also bear on a material issue in dispute, such as motive, intent, or an element of the charged offense, and so the Court should consider whether the matter was projected by the defense as arguable before trial, raised by the defense at trial, or was one that the defense refused to concede.
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing;
• the prosecution must establish that the act of uncharged misconduct which it seeks to introduce into evidence actually happened by “clear and convincing” evidence.
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
• It is typically considered the most difficult to overcome. Because of the damaging nature of such evidence, the trial court must engage in a careful and pragmatic evaluation of the evidence to determine whether the probative worth of the evidence is outweighed by its potential for undue prejudice. That standard is more exacting than Rule 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice. And, “[i]f other less prejudicial evidence may be presented to establish the same issue, the balance in the weighing process will tip in favor of exclusion.”
• The court stated that limiting instructions must be provided to inform the jury of the purposes for which it may, and for which it may not, consider the evidence of defendant's uncharged misconduct, both when the evidence is first presented and again as part of the final jury charge. A suitable limiting instruction explain[s] precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.
Holding:
• The Supreme Court affirmed Defendant's conviction, and held that the trial court appropriately instructed the jury on use of the admitted statements.
• The Supreme Court held that a straightforward application of Rule 404(b) lead to the conclusion that defendant suffered no error due to the admission of the disputed evidence about his former indictment (and incarceration pending trial) on charges that he had attempted the murder of the victim in his present trial.
• The court ended the practice of using "res gestae" as an explanation for the admission of evidence: "[e]vidence of uncharged misconduct that is not intrinsic evidence of the crime is inadmissible unless proffered for a proper purpose. ...
• The Court directed trial courts to make the Rules of Evidence the touchstone for the analysis of all bad acts categories of res gestae evidence, and disapproves further use of res gestae to support evidential rulings.
Please visit the site of New Jersey Criminal lawyer, Jeffrey Hark for more information on criminal matters in NJ and more cases like this.
• Defendant Zarik Rose was incarcerated in 1995 on charges relating to the attempted murder of Charles Mosely.
• While awaiting trial, Defendant allegedly told one of the State's witnesses against him that he wanted to have Mosely "whacked," and that Defendant solicited the witness to kill Mosely.
• At trial, the State moved to admit Defendant's comment. The trial court found some of the evidence admissible as "res gestae."
• During the trial, the court provided instructions to guide the jury's use of that evidence.
• On appeal to the Supreme Court, Defendant argued that all evidence relating to his incarceration on attempted murder charges was improperly admitted at trial.
Analysis:
• The underlying danger of admitting other-crime evidence is that the jury may convict the defendant because he is a bad person in general. The prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.
• Rule 404(b) seeks to strike a balance between the prejudice to a defendant that is inherent in other-crimes evidence and the recognition that the evidence may be highly relevant to prove a defendant's guilt of the crime charged. Evidence of uncharged misconduct would be inadmissible if offered solely to prove the defendant's criminal disposition, but if that misconduct evidence is material to a non-propensity purpose such as those listed in Rule 404(b), it may be admissible if its probative value is not outweighed by the risk of prejudice.
• The court relied on State v. Cofield, 127 N.J. 328 (1992). In Cofield, the Court articulated the following four-part test to determine if evidence of uncharged misconduct is admissible at trial:
1. The evidence of the other crime must be admissible as relevant to a material issue;
• the evidence must have a tendency in reason to prove or disprove any fact of consequence to the determination of the action. The evidence must also bear on a material issue in dispute, such as motive, intent, or an element of the charged offense, and so the Court should consider whether the matter was projected by the defense as arguable before trial, raised by the defense at trial, or was one that the defense refused to concede.
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing;
• the prosecution must establish that the act of uncharged misconduct which it seeks to introduce into evidence actually happened by “clear and convincing” evidence.
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
• It is typically considered the most difficult to overcome. Because of the damaging nature of such evidence, the trial court must engage in a careful and pragmatic evaluation of the evidence to determine whether the probative worth of the evidence is outweighed by its potential for undue prejudice. That standard is more exacting than Rule 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice. And, “[i]f other less prejudicial evidence may be presented to establish the same issue, the balance in the weighing process will tip in favor of exclusion.”
• The court stated that limiting instructions must be provided to inform the jury of the purposes for which it may, and for which it may not, consider the evidence of defendant's uncharged misconduct, both when the evidence is first presented and again as part of the final jury charge. A suitable limiting instruction explain[s] precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.
Holding:
• The Supreme Court affirmed Defendant's conviction, and held that the trial court appropriately instructed the jury on use of the admitted statements.
• The Supreme Court held that a straightforward application of Rule 404(b) lead to the conclusion that defendant suffered no error due to the admission of the disputed evidence about his former indictment (and incarceration pending trial) on charges that he had attempted the murder of the victim in his present trial.
• The court ended the practice of using "res gestae" as an explanation for the admission of evidence: "[e]vidence of uncharged misconduct that is not intrinsic evidence of the crime is inadmissible unless proffered for a proper purpose. ...
• The Court directed trial courts to make the Rules of Evidence the touchstone for the analysis of all bad acts categories of res gestae evidence, and disapproves further use of res gestae to support evidential rulings.
Please visit the site of New Jersey Criminal lawyer, Jeffrey Hark for more information on criminal matters in NJ and more cases like this.
Friday, April 6, 2012
Albert W. FLORENCE, Petitioner v. BOARD OF CHOSEN FREEHOLDERS OF The COUNTY OF BURLINGTON et al.
2012 WL 1069092
Facts:
• Petitioner was arrested during a traffic stop by a New Jersey state trooper who checked a statewide computer database and found a bench warrant issued for petitioner's arrest after he failed to appear at a hearing to enforce a fine.
• He was initially detained in the Burlington County Detention Center and then to the Essex County Correctional Facility where he, like every incoming detainee, had to shower with a delousing agent and was checked for scars, marks, gang tattoos, and contraband as he disrobed. Petitioner claims that he also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. Petitioner claims that he was also required to lift his genitals, turn around, and cough while squatting.
• He was released once it was determined that the fine had been paid.
• He filed a 42 U.S.C. § 1983 action in the Federal District Court against the government entities that ran the jails and other defendants, alleging Fourth and Fourteenth Amendment violations, and arguing that persons arrested for minor offenses cannot be subjected to invasive searches unless prison officials have reason to suspect concealment of weapons, drugs, or other contraband.
• The court granted him summary judgment, ruling that “strip-searching” nonindictable offenders without reasonable suspicion violates the Fourth Amendment. Counties appealed.
• The United States Court of Appeals for the Third Circuit reversed. Certiorari was granted.
• The U.S. Supreme Court affirmed.
Holding:
• The Supreme Court held that searches did not violate Fourth or Fourteenth Amendment.
Issue:
• Whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband.
Analysis:
• The U. S. Supreme Court opined that maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to problems. A regulation impinging on an inmate's constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.”
• The court found that the prison policy of searches in this case was reasonably related to legitimate security interests in prisons. The task of determining whether prison policy is reasonably related to legitimate security interests is peculiarly within province and professional expertise of corrections officials.
• In this case, the correctional officials devised reasonable search policies to detect and deter possession of contraband in their facilities. The correctional officials had a significant interest in conducting a thorough search as a standard part of the intake process.
• Security Interest outweighed the inmate’s constitutional rights:
o The admission of new inmates creates risks for staff, the existing detainee population, and the new detainees themselves. Officials therefore must screen for contagious infections and for wounds or injuries requiring immediate medical attention.
o It may be difficult to identify and treat medical problems until detainees remove their clothes for a visual inspection. Jails and prisons also face potential gang violence, giving them reasonable justification for a visual inspection of detainees for signs of gang affiliation as part of the intake process.
o Correctional officials have to detect weapons, drugs, alcohol, and other prohibited items new detainees may possess. Drugs can make inmates aggressive toward officers or each other, and drug trading can lead to violent confrontations.
o Contraband has value in a jail's culture and underground economy, and competition for scarce goods can lead to violence, extortion, and disorder.
o Classifying inmates by their current and prior offenses before the intake search is impossible because jail officials know little at the outset about an arrestee, who may be carrying a false ID or lie about his identity.
Holding:
• Strip searching” of nonindictable offenders without reasonable suspicion does not violate the Fourth Amendment.
To read this case in its entirety visit our Criminal Law website.
Facts:
• Petitioner was arrested during a traffic stop by a New Jersey state trooper who checked a statewide computer database and found a bench warrant issued for petitioner's arrest after he failed to appear at a hearing to enforce a fine.
• He was initially detained in the Burlington County Detention Center and then to the Essex County Correctional Facility where he, like every incoming detainee, had to shower with a delousing agent and was checked for scars, marks, gang tattoos, and contraband as he disrobed. Petitioner claims that he also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. Petitioner claims that he was also required to lift his genitals, turn around, and cough while squatting.
• He was released once it was determined that the fine had been paid.
• He filed a 42 U.S.C. § 1983 action in the Federal District Court against the government entities that ran the jails and other defendants, alleging Fourth and Fourteenth Amendment violations, and arguing that persons arrested for minor offenses cannot be subjected to invasive searches unless prison officials have reason to suspect concealment of weapons, drugs, or other contraband.
• The court granted him summary judgment, ruling that “strip-searching” nonindictable offenders without reasonable suspicion violates the Fourth Amendment. Counties appealed.
• The United States Court of Appeals for the Third Circuit reversed. Certiorari was granted.
• The U.S. Supreme Court affirmed.
Holding:
• The Supreme Court held that searches did not violate Fourth or Fourteenth Amendment.
Issue:
• Whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband.
Analysis:
• The U. S. Supreme Court opined that maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to problems. A regulation impinging on an inmate's constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.”
• The court found that the prison policy of searches in this case was reasonably related to legitimate security interests in prisons. The task of determining whether prison policy is reasonably related to legitimate security interests is peculiarly within province and professional expertise of corrections officials.
• In this case, the correctional officials devised reasonable search policies to detect and deter possession of contraband in their facilities. The correctional officials had a significant interest in conducting a thorough search as a standard part of the intake process.
• Security Interest outweighed the inmate’s constitutional rights:
o The admission of new inmates creates risks for staff, the existing detainee population, and the new detainees themselves. Officials therefore must screen for contagious infections and for wounds or injuries requiring immediate medical attention.
o It may be difficult to identify and treat medical problems until detainees remove their clothes for a visual inspection. Jails and prisons also face potential gang violence, giving them reasonable justification for a visual inspection of detainees for signs of gang affiliation as part of the intake process.
o Correctional officials have to detect weapons, drugs, alcohol, and other prohibited items new detainees may possess. Drugs can make inmates aggressive toward officers or each other, and drug trading can lead to violent confrontations.
o Contraband has value in a jail's culture and underground economy, and competition for scarce goods can lead to violence, extortion, and disorder.
o Classifying inmates by their current and prior offenses before the intake search is impossible because jail officials know little at the outset about an arrestee, who may be carrying a false ID or lie about his identity.
Holding:
• Strip searching” of nonindictable offenders without reasonable suspicion does not violate the Fourth Amendment.
To read this case in its entirety visit our Criminal Law website.
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