New Jersey Criminal Lawyer Blog

State v. DeShazo, WL 1562246 (App. Div. 2011)

2012-02-02T08:21:00.000-08:00

DeShazo was arrested in Egg Harbor Township driving a car with Virginia plates and a broken out rear window. The officer thought the car might be stolen but could not immediately confirm it. The officer was told that DeShazo was the victim of a shooting and kept a weapon in the center console of his vehicle. The officer searched the car and found a gun. The trial judge denied the defendant’s motion to suppress evidence. Defendant appealed and the Appellate Court reversed.

Under State v. Pena–Flores, 198 N.J. 6, 28 (2009), a “warrantless search of an automobile” is permitted “where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant.”

The court found no exigent circumstances existed because:

1) This was a daylight search;
2) The three officers outnumbered defendant and his passenger.
3) The officers could have had the car towed to a secure location and escorted defendant and the passenger to the police station until a driver with a license could come to the station to operate the vehicle for defendant. Once the vehicle was at the station, the officers could have secured a search warrant.
4) There was no explanation why a telephonic warrant could not have been pursued, either at the station or at the roadside.
5) the search was extensive, including accessing the trunk from the passenger's compartment by pulling the cord hanging down from the backseat, which brought the rear seat flat to the seated portion of the vehicle. We are persuaded that exigent circumstances did not exist to allow a warrantless search of the automobile driven by defendant.

The Court of Appeals reversed and remanded.

Search Warrant Case

2012-02-01T12:25:00.000-08:00

The Appellate Division decided yesterday, in the matter of State v. Heine, that a when a property owner refuses to permit access to a residence for inspection by local officials, the proper remedy is for the municipal inspectors to secure an administrative search warrant. The court ruled refusing access does not constitute a violation of a local ordinance in the absence of a search warrant.

In Heine, a variety of municipal health, construction and fire officials sought to inspect a residential property owned by the defendant. She refused them access to the property, believing it was a violation of her constitutional rights.

Following three trials, she was found guilty in municipal court of various local ordinance violations related to the lack of access for the inspections. However, the Appellate Division held that although an administrative search to the warrant requirement exists in closely regulated industries, that exception does not apply in the context of a private home.

State v. Shannon, 419 N.J. Super 235 (App. Div. 2011)

2012-01-31T12:43:00.000-08:00

Shannon was stopped in a high-crime area for speeding and running a red light. Four police officers were present. They smell of marijuana was emanating from the car. When Shannon exited the car, they patted him down, searched inside the car where they found crack cocaine, cocaine and marijuana. They arrested Shannon, handcuffed and placed him in the back seat of a police car.

Defendant filed a motion to supress evidence. The trial court denied the order and the defendant appealed. The Appellate Court reversed.

Finding no exigency, the Court of Appeals held that the police reasonably could have obtained a telephonic warrant before searching the defendant's car. The court relied on the following factors:

1) The stop was unexpected and caused by motor vehicle infractions.
2) There was no indication that the police officers did not have sufficient time to obtain a telephonic warrant pursuant to Rule 3:5–3(b).
3) It was not late at night, the stop was in a residential area, and four police officers were initially present at the scene with defendant, who was alone.
4) No one had approached the vehicle during the stop.
5) There was no evidence that the police officers or potential evidence in the car were in danger.
6) Defendant was cooperative and had stepped away from the passenger compartment of the vehicle.

Consecutive Sentences & Parole Ineligibility

2012-01-30T18:21:00.000-08:00

This week the New Jersey Appellate Division ruled that when a defendant is sentenced to consecutive sentences as a result of two separate charges in one indictment, for separate offenses arising out of the same set of circumstances, the trial court did not abuse its discretion and require two separate periods of parole ineligibility.

In State vs. Friedman the defendant pled guilty to three separate counts of second degree aggravated assault. The court sentenced the defendant three consecutive periods of incarceration for the three distinct crimes. As a result the defendant is required to serve three separate periods of parole ineligibility under NERA for each distinct guilty plea. The Appellate Division found this acceptable. See this NJ criminal case its entirety.

State v. Shannon, 2011 WL 1562610 (App. Div. 2011)

2012-01-28T14:43:00.000-08:00

Shannon was stopped for speeding. As the trooper approached the car, he could smell marijuana. Another trooper arrived as backup and the car was searched revealing a large quantity of marijuana, cocaine and heroin. Defendant was then placed under arrest, given his Miranda rights, and placed in the back of the police car. The trial judge found that there was probable cause to conduct the search and that exigent circumstances existed.
The main issue on appeal was whether there were sufficient circumstances that ripened into the exigency necessary to conduct a warrantless search. The Appellate Division rejected the finding of exigent circumstances justifying the warrantless search of the vehicle and suppressed the contraband.

Distinguishing Pena-Flores from this case, the Appellate Court considered the following factors in making the exigency determination:

1) There was no indication that the State Trooper lacked sufficient time to obtain a telephonic warrant pursuant to Rule 3:5–3(b);
2) It was not late at night, nor was the police officer impeded by tinted windows. He did not have to look through any windows because the odor of raw marijuana apparently was pungent enough for him to smell.
3) No one approached the vehicle during the stop. Nor was there any suggestion that any confederates were aware of the stop.
4) The officer did not even confiscate the contraband once he located it in the center console, but left it to be later secured. There was no concern that the evidence would not be preserved.
5) The State did not show that it was impracticable to obtain a telephonic warrant or that defendant could not have been placed under arrest.
6) The State did not show that the exigent circumstances were such that “ ‘law enforcement officers [did] not have sufficient time to obtain any form of warrant.’ “ Pena–Flores, supra, 198 N.J. at 30 (emphasis omitted) (quoting State v. Johnson, 193 N.J. 528, 556 n. 7 (2008).

Reversing the trial court’s decision, the Appellate Division held that there was no urgent need for the State Trooper to conduct a full search of the automobile during a daylight stop with another State Trooper assisting while defendant was outside of the vehicle and being watched over by the second trooper. The State made no effort to show that a telephonic warrant could not have been sought with expedition.

Summary Judgment granted to wrongfully convicted client

2012-01-27T12:32:00.000-08:00

Sexual Assault Charges in New Jersey Ineffective -
Assistance Finding Is Held Basis for Legal Malpractice Judgment

As re-posted from, New Jersey Law Journal
Mary Pat Gallagher
January 19, 2012

A former client of the Public Defender's Office won summary judgment in a malpractice suit after a Mercer County judge gave collateral-estoppel effect to a finding that he received ineffective assistance of counsel.

Superior Court Judge Darlene Pereksta granted the motion on liability and causation in Hagan v. Office of the Public Defender, L-1346-10, on Jan. 6, leaving only damages to be litigated.

The ineffective-assistance finding led another judge to vacate Lewis Hagan's 2004 convictions of fourth-degree criminal sexual contact and third-degree child-welfare endangerment.

After direct appeals failed in 2007, Hagan petitioned for post-conviction relief, claiming his trial counsel, Assistant Deputy Public Defender Robert White III, failed to explore evidence that accusations made against him by the child's mother were retaliatory.

In October 2003, Hagan told the school principal of the 13-year-old, D.B., that her mother F.B., his girlfriend, was physically abusing her. When the principal informed him that D.B. was cutting class, he authorized giving her detention. The principal notified the Division of Youth and Family Services of Hagan's allegations, resulting in an investigation.

Hagan obtained a temporary domestic violence restraining order against F.B. on Nov. 17, 2003. She then obtained a similar order against him, claiming he made terroristic threats and burglarized her home.

On Dec. 4, 2003, F.B. reported to the police that D.B. claimed Hagan propositioned her sexually and touched her inappropriately a month earlier. Hagan was questioned and arrested. About a month later, Hagan was granted a final restraining order against F.B.

During a December 2004 trial, Hagan testified about his deteriorating relationship with F.B., but White did not present evidence about Hagan reporting F.B. for child abuse or the involvement of DYFS, despite Hagan's assertion that he told White about the DYFS referral in a May 2004 letter. White also failed to mention the restraining order against F.B., except briefly in his summation.

At the PCR hearing before Judge James Mulvihill, Hagan testified that he repeatedly told White about the restraining order and asked him to look into the DYFS report because it would show he was a responsible parent, but that White never answered his letters.

The report, obtained in the PCR case, confirmed Hagan's account.

Hagan also claimed he told White about a possible witness, Derrick Williams, who claimed he heard F.B. brag about setting him up.

White testified that he did not investigate the restraining orders for fear it would open the door for the state to mention the terroristic threat and burglary charges initially brought against Hagan but dismissed.

White said he was not aware of the DYFS referral but would not have used it because D.B.'s credibility was so weak he did not need to.

He also said he tried to contact Williams and learned he was in prison, and the public defender representing Williams refused to allow an interview.

White claimed that his defense strategy was to attack D.B.'s credibility and portray Hagan as a man who had a healthy relationship with his girlfriend and her children and that Hagan undermined that defense when he took the stand against his advice.

Mulvihilll vacated the conviction based on ineffective assistance, finding White should have used the evidence of Hagan's child-abuse report and the restraining order and should not have been deterred from speaking with Williams, and a reasonable probability existed that the outcome would have been different if he had done so.

Appellate Division Judges Joseph Yannotti and Thomas Lyons affirmed on Aug. 7, 2009, finding "substantial credible evidence" supported Mulvihill's decision.

Hagan was retried and acquitted on March 16, 2010. By then, he had been in custody for six years, mostly at the Adult Diagnostic and Treatment Center in Avenel.

In his motion for summary judgment in the malpractice case, Hagan contended that ineffective assistance is tantamount to malpractice, that the issues had been litigated to a final judgment to which the public defender and White were privy, and that fundamental fairness barred requiring him to relitigate them.

The public defender argued against issue preclusion on the grounds that the issues — whether Hagan was guilty in the PCR case and whether White was negligent in the civil case — were not identical, nor were the parties, because White and the office were not defendants in the PCR proceeding and had no lawyers representing them.

With summary judgment granted on liability and causation, Hagan's lawyer, Cherry Hill solo Jeffrey Hark, says he has moved for lost wages under a state law that allows wrongfully convicted people to recover $20,000 for each year of incarceration, plus legal fees. He also will seek noneconomic damages.

Public Defender spokesman Tom Rosenthal referred questions to the Attorney General's Office. Its spokesman, Lee Moore, declines comment.

White, now with Morris Starkman's Cherry Hill firm, did not return a call.

Internet services providers and communications data warrants

2012-01-26T08:19:00.000-08:00

All internet service providers are required to keep a list for law enforcement to obtain of every person that is assigned at very unique and specific IP address for the computers that are provided internet services.

This process was created for unique billing for the computer IP companies. However, the unique IP address also enable law enforcement community to obtain the billing address and owner of each and every computer connected to their service. As a result, when the individual IP address shows up as a result of an KAZA, LIMEWIRE, or other file sharing program search for specific codes embedded in child pornography videos, law enforcement know where to go and get the billing and address information associated with the IP address.

Please call the Law Office of Hark & Hark at 866-HARK-LAW to discuss the ramifications of your actions in greater detail or visit our criminal lawyer website.

US V. Jones, 565 U.S.

2012-01-24T14:09:00.001-08:00

(Decided January 23, 2012)

The US Supreme court has held that the attachment of GPS tracking devise on a vehicle travelling on the public highways is considered a search subject to 50 years of search and seizure case law. Accordingly, with out a warrant executed by a neutral and detached magistrate, the use of same violates the 4th Amendment of the US Constitution. The key to the court's decision was the invasion of the individual's right to privacy.

Holding:

The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to respondent Jones’s wife. The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government then tracked the vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking conspiracy charges. The District Court suppressed the GPS data obtained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.

Held: The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.

(a) The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Here, the Government’s physical intrusion on an "effect" for the purpose of obtaining information constitutes a "search." This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.

Tracking child pornography through the internet

2012-01-24T10:46:00.000-08:00

The Federal Adam Walsh Act created a FBI department responsible for the identification and tagging of all possible videos containing child pornography with hidden computer codes which can be searched for from remote FBI locations through out the country.

State and Federal authorities will execute a search over the internet for the hidden codes they have imbedded in the videos which that have positively identified as actual abducted, or missing children who are performing the child pornography. Once their pier to pier searches identified IP addresses that contain the coded files through KAZA and LIMEWIRE and other file sharing programs, the law enforcement community will obtain search warrants to learn the identification of the owner of the IP address. Law enforcement will then come to the home with a search warrant, seize the computer in questions, and arrest the owner(s) for possession of illegal pornography.

Please call the Law Office of Hark & Hark at 866-HARK-LAW to discuss the ramifications of your actions in greater detail or visit our comprehensive sex crime website.

File Sharing and child pornography

2012-01-23T14:25:00.000-08:00

File Sharing: What it is and why it can lead to criminal charges related to Child Pornography

Federal & State law prohibits the possession of child pornography. In addition, the laws absolutely prohibit the distribution of any pictures. Current file sharing programs that allow the use of remote connected computers to act as pier-to-pier networks which distribute child pornography over the internet create a means of distribution of child pornography. If anyone has downloaded 'free' programs, such as KAZA, or LIMEWIRE, with the intentions of downloading music or adult porn, but also download child pornography, they will be subject to criminal charges.

Please call the Law Office of Hark & Hark at 866-HARK-LAW or visit our criminal website to discuss the ramifications of your actions in greater detail.

NJ Voluntary Prescription Monitoring Program ( PMP)

2012-01-18T08:49:00.000-08:00

Effective September 1, 2011 New Jersey has instituted a 'voluntary' prescription monitoring program (PMP) for all licensed medical providers who are empowered with the ability to prescribe CDS and Human Growth Hormone dispensed on an out-patient basis. The intent of the program is to monitor those individuals who are attempting to obtain prescription medications through more than one source with the same single CDS prescription. Although the Medical Board and the Division of Consumer Affairs is couching this program and one to protect the patient, the real motive is more along the lines of BIG BROTHER.

The PMP will allow the Board of Medical Examiners and Attorney General's Office to monitor (1) ALL narcotic prescriptions any one doctor written based on your DEA AND NPI number, (2) the volume and regularity of the NARCOTIC prescriptions being written to any one patient, and (3) who and where the NARCOTIC prescription are being filled. Also, the program will allow a physician to investigate who else is writing any prescriptions for the patient under the doctor's care.

The effects of this monitoring program are significant in two ways. On the surface it looks like the patient will now not be able to lie to the doctor about his prescription history. Secondly, the doctor will be able to see who else is writing the narcotic prescription for the same patient. However, the monitoring program and access to this clearing house of patient information has created an additional standard of care. Now an attorney will be able to argue that if the patient's prescription history is not checked prior to any narcotic medication being prescribed, and there is an overdose or other illegal activity, the doctor may have criminal or civil culpability.

This clearing house location will primarily assist the DEA, FBI, Board of Medical Examiners, Attorney General's Office and local law enforcement prosecute doctors for writing illegal prescriptions which are filled by different locations and at a greater frequency that indicated by the medication in questions. FBI and DEA can not get the patient info, especially when cash is involved, as a result they are seeking to obtain the info from the source; where the narcotic prescription is originating.

For further details on matters such as these, please visit our Professional License Defense website.

NJ Lawyers Soliciting Traffic Ticket Offenders

2012-01-06T10:13:00.000-08:00

In the last ten years New jersey lawyers have been soliciting citizens who have been
issued traffic tickets though computer access to the NJ court system  records.
This week several local representatives have prepared a bill that would criminalize
any such solicitation.

The legislative intent reflects that that public has come to dislike the intrusion
to private lives the  solicitation of attorney services when none have been sought
after.   Unfortunately, this bill will not past constitutional muster because there
are several significant free speech issues involved.  Commercial advertising  has
helped to be a constitutionally protected form of speech by individuals  and
corporations alike.  As well, other states have attempted to regulate this type
of advertising and those state supreme courts have run into the same  issues!

Stop and Frisk

2011-12-28T09:20:00.000-08:00

State v. Privott, 203 N.J. 16 (2010)

In this case, the Supreme Court of New Jersey made three essential holdings. The Court ruled that: 1) the police officer had specific and particularized reasons for conducting an investigatory stop of the defendant, 2) the totality of the circumstances justified the officer’s decision to frisk the defendant, and 3) the officer’s conduct in lifting up the defendant’s shirt to check for weapons in the waistband of defendant’s pants exceeded the scope of the type of intrusion a Terry stop allows for.

The 5-2 decision was authored by Justice Wallace and it was joined by Chief Justice Rabner, Justice Long, Justice LaVecchia, and Justice Hoens. However, Justice Albin and Justice Rivera-Soto dissented.

The most relevant language seems to be:

“... the police officer lifted defendant’s tee-shirt to expose defendant’s stomach, and in doing so, observed a plastic bag with suspected drugs in the waistband of defendant’s pants. That maneuver exceeded the scope of the pat-down search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search of defendant that is not condoned.” Id. at 31 (emphasis added).

Unpaid Child Support

2011-12-12T08:48:00.000-08:00

In 1995, NJ Legislation (Chapter 334) attempted to increase the collection of unpaid child support by requiring plaintiffs or their attorneys in all civil lawsuit actions to do one of the following:

File a certificate with the Probation Department identifying the plaintiff, requiring that staff in the Probation Department search that name in the ACSES computer system, confirming whether the plaintiff was a child support judgment debtor. If no response was received from the Probation Department within 30 days, the proceeds could be distributed.
Conduct a child support judgment search through a private abstract company.

Major implementation problems immediately ensued. Due to 500,000+ annual suit filings, Chapter 334 promptly overwhelmed the NJ court infrastructure since no dollar threshold was specified, certificates were consistently filed with the wrong office of the court, lawsuit proceeds were unnecessarily delayed to the 95%+ of lawsuit plaintiffs who were not child support judgment debtors, resulting in generally poor compliance with the existing statute.

Work began immediately on amending Chapter 334, resulting in a P.L. 2000, c. 81, which both greatly expands the scope of the priority lien process and simplifies the compliance requirements.

Federal welfare reform legislation (PRWORA) requires that all States intercept and seize lump sum payments from judgments, settlements and worker's compensation, by imposing priority liens on those payments to pay off unpaid child support judgments. P.L. 2000, c. 81 is New Jersey's response to the Federal mandate.

State v. J.A.C.

2011-12-07T10:58:00.000-08:00

Background:

In a criminal sexual assault case, Defense Counsel attempted to introduce sexually explicit instant message (IM) conversations between a girl who was a minor and several adult males who were not charges with any offense or were related to the criminal case in any manner. Defense Counsel intention was to prove that the alleged victim, the girl, was fabricating her story, she had specific knowledge of sex acts from another event or events, and the IM’s reflected her sexual activity. (Obviously, for the jury to evaluate her credibility when they were to deliberate.) A forensic analysis of the girl’s computer revealed sexually explicit IMs between her and an adult male. A trial judge found that the IMs constituted “sexual conduct,” as defined by N.J.S.A. 2C:14-7f (New Jersey’s Rape Shield Law), and their prejudicial effect outweighed their probative value. However, based on the significant number of IM’s and the sexually explicit content the trial judge allowed the defendant to mention them in order to show that the victim may have fabricated her story “in order to deflect criticism or discipline for having engaged in such behavior (the sexually explicit IMs that is, not the allegations against JAC the defendant).”

Appellate Review:

On appeal, the Appellate Division ruled that the contents of the IMs were not relevant to the offense charged since they did not refer to or involve the defendant or bear any relation to a motive to fabricate. Nevertheless, the Appellate Division held that the existence of the IMs was relevant to show that the victim had a motive to fabricate the allegations. Although explicit IMs cannot be introduced to prove the sexual disposition of an alleged victim, this groundbreaking decision makes it possible to introduce them in order to establish motive for an alleged victim to lie in order to avoid punishment for this behavior from the mom or dad or paramour who is in the house in charge of discipline. In addition, the court;s same reasoning can be applied to cross examination issues an alleged victim’s lack of credibility without running afoul of New Jersey’s rape shield statute, N.J.S.A. 2C:14-7. The Appellate Division’s decision can be found here.

UPDATE - New Jersey Supreme Court Review:

The Appellate Division’s decision has been appealed and the New Jersey Supreme Court recently heard oral arguments in the case. The Court plans to rule solely on the limited issue of whether the contents of IMs sent by a minor victim to adult males are admissible. If the Court determines that they are, explicit IMs could become a powerful tool to defend against wrongful convictions and protect the constitutional rights of criminal defendants.

The key issue in this case will be the use of and existence of any IMs from one teen to another! Counsel must investigate these issues because the content will surely come into play in one way or another. IMs from one friend to another, and for that matter, texts, emails, web pages, tweets, that are memorialized FOREVER, are nothing more than a conversation between friends that has been preserved! While Teens used to talk on the phone; now with the number of IMs, text, emails, and tweets, reaching millions and millions per day, more often than not serious sensitive teen communications will probably be saved on a server somewhere that can be retrieved from trial in these case. More importantly, the content of those emails, text, IMs, tweets, and the like will make or break your defense at trial.

Summary of Fernandez v. Nationwide Mutual Fire Insurance

2011-11-02T14:15:00.000-07:00

Facts:

On February 4, 2004, Sebastian Fernandez was critically injured in a car accident when the automobile he was driving was struck by a commercial vehicle. After winning an award at arbitration, Mr. Fernandez instituted an action for a declaratory judgment regarding his entitlement to the funds. Both he and Nationwide, his insurer, filed motions for summary judgment. The trial judge directed that the funds be paid to Fernandez. Nationwide appealed and the Appellate Division reversed. Eventually, the New Jersey Supreme Court agreed to hear the case.

Holding:

The New Jersey Supreme Court ruled, “The Appellate Division’s decision correctly held that the insurer of the responsible party, and not the injured victim’s insurer, was liable for the expense of PIP benefits for the victim.” Fernandez v. Nationwide Mut. Fire Ins. Co., 199 N.J. 591, 593 (2009). The Court noted that the statute regarding payment of personal injury protection (PIP) benefits, N.J.S.A. 39:6A-9.1, is remedial legislation that is given a liberal construction. In coming to its conclusion, the Court explained that requiring the tortfeasor’s PIP carrier, rather than the injured accident victim’s insurer, to be liable for the expense of PIP benefits advances stability in the insurance marketplace and does not produce an unjust result. The Court also noted that its result has been the controlling application of the No-Fault Law in New Jersey for more than a decade.

Legislative History of N.J.S.A. 39:6A-9.1:

The New Jersey Automobile Reparation Reform Act (“No Fault Act”) was enacted in order to address four major concerns: 1) reparation, 2) cost, 3) availability, and 4) judicial economy. According to the Commission Report, the reparation objective was viewed as the primary purpose of an automobile insurance system and was given priority in formulating the proposals that served as the basis for the PIP statute. Moreover, the failure of many automobile accident victims to receive adequate reimbursement for their injuries was considered a major deficiency in the tort liability system that existed prior to the institution of the no-fault law and an unwarranted hardship upon unfortunate victims. In short, N.J.S.A. 39:6A-9.1 was enacted to guard against these problems.

The Takeaway:

· A tortfeasor’s insurer is liable for the expense of PIP benefits, not the accident victim’s insurer.

State v. P.A.C.

2011-10-14T06:56:00.000-07:00

In the recent case of State vs. P.A.C. New Jersey courts have explicitly held that “engag[ing] in three or more drug sales does not in and of itself make [one’s] conduct a ‘repetitive criminal activity.’” State v. P.A.C., ___N.J. Super. ___ (App. Div. 2011) and as a result the prosecutor’s denial of Defendant’s PTI application constitutes legal error that is tantamount to a patent and gross abuse of discretion. This is a huge development for individuals who (a) do not have a criminal record, (b) are charged with possession of CDS and or possession of CDS with intent to distribute as a result of small drug purchases in drug zones. This recent change inthe law is a substantial development which will aid defendants avoid prosecution and get into alternative recovery programs much more easily.

docket 14-2-3760 State v. Koch, App. Div.

2011-09-28T08:32:00.000-07:00

Koch was convicted in Municipal Court of underage consumption of alcohol on private property.

The judge imposed a $250 fine, and $33 court costs. At a trial de novo in the Law Division, the court found Koch guilty of the same charge and imposed the same sanctions. The appellate panel reverses, concluding that the Law Division judge erred in excluding the videotape of a motor vehicle stop of Koch about an hour and a half after the arresting officer, Patrolman DeWitt, left the scene of a party. That videotape directly impeached DeWitt's testimony. It tended to raise a reasonable doubt about the credibility and accuracy of DeWitt's identification of Koch as one of the partygoers who consumed alcohol. Further, Koch has raised a valid Miranda issue. The partygoers who remained at the scene were detained for about 20 minutes. DeWitt's sniffing of their breath was clearly in a custodial setting. His actions were an implied question to Koch and others to indicate whether they had consumed alcoholic beverages. Koch was charged in a quasi-criminal matter, which resulted in the imposition of a penal consequence. Therefore, the statement attributed to Koch should have been suppressed for failure to give Miranda warnings.

Davis v. United States

2011-06-23T13:52:00.000-07:00

In Davis v. United States (Docket No. 09–11328, Decided June 16, 2011), the United States Supreme Court held that searches conducted in objectively reasonable reliance on binding precedent are not subject to the exclusionary rule because suppression would do nothing to deter police misconduct and would come at a high cost to both the truth and the public safety.

In Davis, the question presented—whether new law should apply to the retroactive exclusion of evidence—arose as the result of a shift in Fourth Amendment jurisprudence on searches of automobiles incident to arrests of recent occupants. The Court, in United States v. Gant, adopted a new rule under which an automobile search incident to the occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains “evidence relevant to the crime of arrest.”

The search at issue in Davis, which was conducted after defendants had been secured in separate patrol cars, took place a full two years before the Court announced its new rule in Gant. At trial, defense counsel acknowledged that the officers’ search fully complied with then-existing precedent, but nonetheless moved to suppress to preserve the issue for appeal. Gant was decided while appeal was pending, and defendant renewed his motion to suppress because under the new law, the vehicle search incident to Davis’s arrest “violated [his] Fourth Amendment rights.” The Eleventh Circuit refused suppression, concluding that “penalizing the [arresting] officer” for following binding appellate precedent would do nothing to deter Fourth Amendment violations.

On certiorari, the Supreme Court reiterated that while the exclusionary rule’s “sole purpose . . . is to deter future Fourth Amendment violations,” courts must adequately account for the “substantial social costs” generated by the rule—i.e., the heavy toll exclusion exacts on both the judicial system and society at large. Thus, for exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. The more “deliberate,” “reckless,” or “grossly negligent” the police conduct, the more exclusion is warranted, and vice versa. This rationale forms the basis of the “good faith” exception to the warrant requirement, which holds that the exclusionary rule does not apply when the police conduct a search in “objectively reasonable reliance” on warrants, statutes, and judicial precedent later invalidated.

Because in this context, all agreed that the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way, the Court held that the “absence of police culpability dooms Davis’s claim.” That is, in the absence of deliberate, reckless, or grossly negligent police conduct, or some “recurring or systemic negligence” on the part of law enforcement, exclusion yields no meaningful deterrence, and does not justify the price paid by the justice system and society. Ultimately, the Court determined that the crux of the analysis in such circumstances is officer culpability or “good faith,” and not retroactive application of laws. Finding that the officers acted in reasonable reliance on binding precedent, the Court declined to retroactively apply the exclusionary rule as modified in Gant, and upheld Davis’ conviction.

Arizona v. Gant

2011-06-23T13:37:00.001-07:00

In Arizona v. Gant, 129 S. Ct. 1710 (2009), the United States Supreme Court held that where there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, the justifications for the search-incident-to-arrest exception to the warrant requirement—protecting arresting officers and safeguarding evidence of the offense of arrest that an arrestee might conceal or destroy—are absent, and the exception does not apply.

After defendant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police searched his car and discovered cocaine in the pocket of a jacket on the backseat. When asked at the suppression hearing why the search was conducted, police responded: “Because the law says we can do it.” The Arizona Supreme Court disagree, holding that because defendant could not have accessed his car to retrieve weapons or evidence at the time of the search, the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement, as defined in Chimel v. California, 395 U.S. 752 (1969), and applied to vehicle searches in New York v. Belton, 453 U.S. 454 (1981), did not justify the search, requiring exclusion.

On certiorari, the Supreme Court began by reiterating that the “search incident to lawful arrest” exception to the Fourth Amendment’s warrant requirement “derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” In Chimel, the Court limited the scope of such searches to “the arrestee’s person and the area within his immediate control.” This limitation ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officer and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.

In Belton, the Court considered Chimel’s application to the automobile context, concluding that when an officer lawfully arrests the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile and any containers therein. This holding was widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. On finding that this broad interpretation of Belton had converted the exception into an impermissible police entitlement, the Gant Court distinguished Belton, thereby narrowing its scope. Unlike Belton, which involved a single officer confronted with four unsecured arrestees, Gant involved five officers and only three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched defendant’s car. Because the circumstances in Gant met neither justification for the warrant exception—threat to officer safety or evidence—the Court deemed the search a constitutional violation, contrary to the established reading of Belton.

The Court held that Belton permits an officer to conduct a vehicle search only when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. Ultimately narrowing the permissible scope of searches incident to lawful arrest, the Court summarized: “Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis.

Walrond v. County of Somerset

2011-06-14T09:56:00.000-07:00

In New Jersey, however, N.J.S.A. 34:15–36, defines “employee” as “synonymous with servant, and includes all natural persons, including officers of corporations, who perform service for an employer for financial consideration [.]” FN5 (emphasis added). Service performed in exchange “ ‘for financial consideration’ is a cardinal legal requirement in [workers'] compensation for the creation of the status of employer and employee.” Goff v. County of Union, 26 N.J. Misc. 135, 138, 57 A.2d 480 (Dept. Labor 1948). That services be rendered for “financial consideration” has been recognized as “the primary governing standard defining an *239 employee[.]” Kraivanger v. Radburn Assoc., 335 N.J.Super. 169, 172, 762 A.2d 222 (App.Div.2000); Gross v. Pellicane, 65 N.J.Super. 386, 395, 167 A.2d 838 (Cty.Ct.1961) (“a prerequisite to the existence of an employment status is that there be a financial consideration flowing between the employer and the employee.”).

FN5. Excluded from this definition are only “employees eligible under the federal ‘Longshore and Harbor Workers' Compensation Act,’ ” and “casual employments.” [9] Financial consideration, under the statute, need not be in the traditional form of a wage. Johnson v. The United States Life Ins. Co., 74 N.J.Super. 343, 349–50, 181 A.2d 380 (App.Div.1962). For instance, free board and lodging or a rent-free apartment have been held to constitute consideration given in return for services rendered. See Britten v. Berger, 18 N.J. Misc. 215, 12 A.2d 875 (Dept. Labor 1940); Simpson v. Vertty, 3 N.J. Misc. 9 (Dept. Labor 1925). In addition, benefits such as vocational instruction, training, and incidental equipment have also been deemed compensation. Heget v. Christ Hosp., 26 N.J. Misc. 189, 192, 58 A.2d 615 (Cty.Ct.1948) (finding that student nurse was employee of hospital even though she did not receive wages for her work). [10][11] Reimbursement or payment of expenses “could also be seen as a form of compensation when others who might be classified as ‘true volunteers' were not so compensated.” Kraivanger, supra, 335 N.J.Super. at 172, 762 A.2d 222.

In addition, “even where no specific salary or manner of payment is fixed, the law in a proper case may spell out an agreement implied in fact to pay for the reasonable value of the services rendered.” Johnson, supra, 74 N.J.Super. at 350, 181 A.2d 380. Notably, “employee status for workers' compensation purposes exists if any financial consideration at all passes.” Kraivanger, supra, 335 N.J.Super. at 172, 762 A.2d 222. In short, “financial consideration” includes anything of value to be received by the individual in return for his services, but not the hope of future favors. Hawksford v. Steinbacher Packing Co., 73 N.J.Super. 175, 180, 179 A.2d 181 (Cty.Ct.1962), aff'd, 80 N.J.Super. 129, 193 A.2d 163 (App.Div.), certif. denied, 41 N.J. 195, 195 A.2d 466 (1963). *240 [12] It is not necessary, to be considered an employee, to receive “financial consideration” directly from an employer. Rather, indirect compensation for services is sufficient to establish the employment relationship. Pickett v. Tryon Trucking Co., 214 N.J.Super. 76, 81, 518 A.2d 500 (App.Div.1986), certif. denied, **499107 N.J. 149, 526 A.2d 210 (1987). In Pickett, for example, consideration passed from Tryon Trucking to a third-party who, in turn, paid petitioner for his services rendered to Tryon, and therefore, Pickett was found to be an employee of Tryon. Ibid. [13][14] In contrast, however, volunteers who act out of civic or charitable motives with no expectation of payment are not employees. Cerniglia v. City of Passaic, 50 N.J.Super. 201, 208, 141 A.2d 558 (App.Div.1958). “It is clear that one who volunteers his [or her] services and neither receives nor expects to receive payment is not an employee for workers' compensation purposes.” Veit v. Courier Post Newspaper, 154 N.J.Super. 572, 574, 382 A.2d 62 (App.Div.1977) (citing Cerniglia, supra, 50 N.J.Super. 201, 141 A.2d 558; Armitage v. Trs. of Mt. Fern M.E. Church, 33 N.J.Super. 367, 110 A.2d 154 (Cty.Ct.1954); 1A Larson, Workmen's Compensation Law, § 47.41 (1973)). The Cerniglia court noted that “[t]he [workers'] compensation decisions uniformly exclude from the definition of ‘employee’ those who neither receive nor expect to receive any kind of pay for their services.” Cerniglia, supra, 50 N.J.Super. at 208, 141 A.2d 558 (citing 1A Larson, supra, § 47.41 at 696).

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Voss v. Tranquilino

2011-06-03T11:07:00.000-07:00

In Voss v. Tranquilino (Docket No. A-110-09, Decided June 1, 2011) the New Jersey Supreme Court held that N.J.S.A. § 39:6A-4.5(b)—prohibiting driving while intoxicated (DWI) offenders involved in accidents from suing for recovery of economic or noneconomic loss—does not preclude negligence suits against licensed alcohol servers. That is, N.J.S.A. § 39:6A-4.5(b) is coexistent with the deterrence and liability-imposing principles of the Dram Shop Act, N.J.S.A. §§ 2A:22A-1 to 2A:22A-7.

Plaintiff motorcycle rider alleged that, prior to the accident at issue, he was a patron at the restaurant owned by defendants and was negligently served alcoholic beverages that contributed to the accident and caused his injuries. The motorcycle rider was charged with DWI, and pled guilty. Based on plaintiff’s guilty plea, defendant sought dismissal of the suit on the grounds that N.J.S.A. § 39:6A-4.5(b) operates as bar to recovery for DWI offenders. The trial court denied the motion, and the Appellate Division affirmed. The panel explained that the Dram Shop Act serves to: (1) make liability coverage for liquor licensees more available and affordable by defining the limits of the civil liability of beverage servers; (2) encourage the use of risk reduction techniques by liquor licensees; and (3) permit a person who sustains damages as a result of negligent service to sue. Review of legislative history indicated that a provision prohibiting suit against licensed servers was explicitly rejected as overly burdensome to negligence victims. Moreover, such a reading would create a disincentive to liquor establishments to refrain from serving visibly intoxicated patrons.

Because the purpose of N.J.S.A. 39:6A-4.5(b) was to bring down automobile insurance premiums, and not to reduce liquor liability insurance premiums or to in any way affect dram shop claims, the court reasoned that N.J.S.A. 39:6A-4.5(b) must not operate to bar negligence suits. The court determined that barring dram shop claims would unjustifiably constitute repeal by implication of a portion of the Dram Shop Act. Moreover, immunizing liquor licensees from liability in such circumstances would be inimical to the State’s policy of curbing drunk driving. In agreement with the foregoing findings of the Appellate division, the Supreme Court affirmed. The Court noted that in allowing the action to proceed, rather than barring it pursuant to N.J.S.A. 39:6A-4.5(b), the application of established principles of comparative negligence will apportion properly the responsibility for damages as between dram shop parties and the injured driver.

State v. Schmidt

2011-05-31T18:56:00.000-07:00

Late last week New Jersey's Supreme Court decided in State v. Schmidt that once a person gives initial consent to providing a breath sample, no further action by the police is necessary to provide additional warnings to him in the event he does not provide adequate breath samples. In other words, teh defendants have to cooperate immediately with all instructions. The officers are not required to ask more that one or two times to have the defendant provide a breath sample or beg time and again, either.

InSchmidt, the police arrested for drunk driving and, prior to administering a breath test, read him the first portion of the standard statement required under NJSA 39:4-50.2(e) (aka paragraph 36). The defendant consented to taking a breath test, but thereafter was either unwilling or unable to provide adequate breath samples. The defendant claimed on appeal that the police should have read him the second portion of paragraph 36 before charging him with the refusal offense.

State v Audubato

2011-05-26T14:40:00.000-07:00

Yesterday, in State v Audubato (see below) the App Div held that use of flashing lights did not transform a field inquiry into a Terry 'stop' in a case where def was a already stopped in front of his own house. Field inquiries do not require any basis at all. In this case the court found that community caretaking doctrine applied as the police did not know it was def,so own house. A red herring in the case was that the police officer testified that the dispatcher may have said the def was drunk. The dispatcher notes did not reveal this. Once the police officer, he smelled alcohol on the def breath and the event turned to a investigative stop.

In State v. Adubato (Docket No. A-3419-09T1, Decided May 23, 2011) the New Jersey Superior Court held that police use his flashers when pulling up behind a stopped car late at night does not elevate a field inquiry into a Terry stop. The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, and to pat him down for the officer’s safety, if that stop is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. Under this standard, an investigatory stop is valid only if the officer has a particularized suspicion based upon an objective observation that the person stopped has been engaged or is about to engage in criminal wrongdoing.

Here, after receiving dispatcher notification about a possibly intoxicated driver “continually driving around the neighborhood . . . exiting the vehicle,” Officer Horton found defendant’s car—matching the license number provided by the dispatcher—stopped on the side of the road, with the engine running, the lights on, and the defendant speaking loudly on a cell phone. At the time Horton was unaware that the vehicle was parked in front of defendant’s residence because he had not yet performed a record check. When Horton approached the car he detected a strong odor of alcohol. He observed that defendant’s eyes were bloodshot and his speech slurred. Defendant, upon questioning, admitted to Horton that he had been drinking at a pub, at which time Horton administered field-sobriety tests. Based upon the results of those tests defendant was arrested and charged with DWI, among other offenses.

On appeal from denial of defendant’s motion to suppress, the court sought to determine whether, under the totality of the circumstances, Horton’s conduct violated defendant’s constitutional rights. Under the circumstances, the court found that further inquiry by Horton was warranted under both Pineiro (field inquiry standard) and Martinez (community caretaker standard). The court found Horton’s conduct to be “constitutionally ambiguous.” That is, while defendant may have been concerned that he was not free to drive away, he may also have been reassured that the person parking behind was a police officer rather than a stranger with potentially unfriendly intentions. Because the use of the flashing lights was routine, and enhanced Horton and his partner’s safety, as well as that of defendant, the court found it to be acceptable conduct. Moreover, once Horton ascertained that defendant had the odor of alcohol on his breath, bloodshot and watery eyes, slurred speech, and that he had been drinking, he had a sufficient basis for a Terry stop. As such, the denial of defendant’s motion to suppress was upheld.

Kentucky v. King (Docket No. 09-1272, Decided May 16, 2011)

2011-05-24T19:18:00.000-07:00

Summary

In Kentucky v. King (Docket No. 09-1272, Decided May 16, 2011) the United States Supreme Court held that a warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment. During the course of a controlled drug bust, officers in hot pursuit of a suspected drug dealer, but unsure which of two apartments the suspect entered, smelled marijuana smoke emanating from one of the apartments and erroneously presumed the suspect to be inside. Officers preceded to bang on the apartment door loudly announcing “This is the police” or “Police, police, police.” Upon hearing movement from within the apartment which caused officers to believe that drug-related evidence was about to be destroyed, the officers announced that they “were going to make entry inside the apartment.” Upon entry, officers discovered evidence of drugs.

The Kentucky Supreme Court held that the evidence obtained from the apartment search should have been suppressed on the grounds that the exigent circumstances exception to the warrant requirement did not apply because the officers deliberately created the exigency by knocking on the door, and that the hot pursuit exception to the warrant requirement did not apply because the suspect was not aware he was being pursued. Defendant was subsequently convicted on various drug charges.

On appeal to the Supreme Court, defendants contended that an exigency is impermissibly created when officers engage in conduct that would cause a reasonable person to believe that entry was imminent and inevitable. However, the Court rejected this view, determining that the ability of officers to respond to an exigency cannot turn on such subtleties as the officers’ tone of voice in announcing their presence and the forcefulness of their knocks. It further rejected the “bad faith,” “reasonable foreseeability,” “probable cause and time to secure a warrant,” and “standard or good investigative tactics” standards employed by the lower courts. Instead, the Court held that the appropriate standard is whether police gained entry to premises by means of an actual or threatened violation of the Fourth Amendment. It reasoned that when police, without a warrant, knock on a door, occupants are under no constitutional obligation to open the door or to speak to police. Therefore, occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

Because, under these circumstances, the officers did not inform defendants they would make entry until after the exigency—the believed destruction of drug evidence—had arisen, the Court concluded that there was no evidence of a Fourth Amendment violation. However, the Court, for the purposes of argument, relied on the trial court’s determination that a genuine exigency existed; this finding was subsequently questioned by the Kentucky Supreme Court, observing that there was “certainly some question as to whether the sound of persons moving [inside the apartment] was sufficient to establish that evidence was being destroyed.” Noting that this was an issue to be addressed by the trial court, the Court reversed and remanded because the exigency justified the warrantless search of the apartment.

Significance

Warrantless searches “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). The exigent circumstances doctrine, one well-established exception to the warrant requirement, permits police entry where there is an imminent risk of death or serious injury, a danger that evidence will be immediately destroyed, or fear that a suspect will escape. Brigham City v. Stuart, 547 U.S. 398, 403 (2006). The significance of the Court’s holding in Kentucky v. King lies in its potential to significantly curb the ability of defendants to successfully oppose warrantless searches on Fourth Amendment grounds. By permitting officers to “knock, listen, then break the door down,” the Court substantially expanded the scope of the exigent circumstances doctrine by allowing police to essentially create or manufacture the exigency to a greater degree than that which was permitted under the various standards previously employed by the lower courts. Kentucky v. King (Ginsburg, J., dissenting). For instance, the “bad faith” standard employed by some jurisdictions prior to King asked whether law enforcement officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement. United States v. Gould, 364 F.3d 578, 590 (5^th Cir. 2004). This standard, like the others rejected by the King Court, imposed a higher burden on law enforcement to show a legitimate, pressing cause for entry. Under the standard adopted in King, upon smelling marijuana, even if officers threaten to kick down the door if the occupants do not open it, its constitutionally permissible for the officers to enter if they hear sounds that suggest evidence is being destroyed. However, if a defendant answers the door and makes no sound, the officers would have no constitutional right to enter, although they may ask for permission to enter. Any evidence from that consensual search would be then be allowed. As Justice Scalia explained during oral argument, that would be “taking advantage of the stupidity of the criminals,” and “the one thing that [law enforcement] has going for it is that criminals are stupid.”

As such, the Court’s decision places individuals suspected of criminal activity in a lose-lose situation. Upon announcement of police presence, individuals are left with somewhat unfavorable options: (1) answer the door but decline consent to search—an option that many individuals, inherently intimidated by police and unaware of their constitutional rights would be unlikely to evoke; (2) answer the door and consent to police search—an option which would make any seized evidence fair game under the Fourth Amendment; or (3) fail to answer the door—an options which risks that any sound made in the moments following announcement might be construed as indicative that evidence is being destroyed, thus triggering the exigent circumstances exception as construed by the King Court.

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State v. McLean, 205 N.J. 438 (N.J. 2011)

2011-05-24T19:15:00.000-07:00

HELD: The opinion offered by the officer does not meet the requirements
needed to qualify it as a lay opinion and permitting the officer to testify
about his opinion invaded the fact-finding province of the jury.

1. The familiar standards governing expert opinion testimony are found in
three separate rules. See N.J.R.E. 702, 703, 705. An expert is one who is
qualified "by knowledge, skill, experience, training, or education" and who
is therefore permitted to offer testimony in the form of an opinion that
"will assist the trier of fact to understand the evidence or to determine a
fact in issue." N.J.R.E. 702. Experts, unlike other witnesses, are permitted
to rely on information that would otherwise be hearsay, and to present it to
the jury, if others in their field of expertise reasonably and customarily
do so. N.J.R.E.
703; see N.J.R.E. 705  [*6] (governing disclosure by experts and manner of
questioning experts). The Court has held, in its seminal decision, that
because expert opinions in narcotics prosecutions are governed by N.J.R.E.
702, such testimony is limited to "relevant subject[s] that [are] beyond the
understanding of the average person of ordinary experience, education, and
knowledge," State v. Odom, supra, 116 N.J. at 71, 560 A.2d 1198. Expert
testimony is not admissible if the transactions at issue occurred in a
straightforward manner. Moreover, experts may not, in the guise of offering
opinions, usurp the jury's function by, for example, opining about
defendant's guilt or innocence or about the credibility of parties or
witnesses.
Unless confined to their proper role, expert opinions may present the risk
of undue prejudice to defendants. As for the use of hypothetical questions,
although permissible, their use is not unbounded. The Court has imposed a
number of safeguards, including that defendant's name not be included in the
question or answer and that the judge should instruct the jury that they are
not bound by the expert's opinion because the decision about guilt is theirs
alone. (Pp. 11-21)

2. Lay opinion testimony can  [*7] only be admitted if it falls within the
narrow bounds of testimony that is based on the perception of the witness
and that will assist the jury in performing its functions either by helping
to explain the witness's testimony or by shedding light on the determination
of a disputed factual issue. Perception rests on the acquisition of
knowledge through use of one's sense of touch, taste, sight, smell or
hearing. Although our appellate court, in explaining lay opinion testimony,
has referred as well to the officer's training and experience, the analysis
of admissibility has been, as it must be, firmly rooted in the personal
observations and perceptions of the lay witness in the traditional meaning
of Rule 701.
There are, however, limits that have traditionally been imposed on lay
opinion testimony. For example, unlike expert opinions, lay opinion
testimony is limited to what was directly perceived by the witness and may
not rest on otherwise inadmissible hearsay. (Pp. 21-27)

3. The Court has established the boundary line that separates factual
testimony by police officers from permissible expert opinion testimony. On
one side of that line is fact testimony, through which an officer is  [*8]
permitted to set forth what he or she perceived through one or more of the
senses. On the other side, the Court has permitted experts with appropriate
qualifications, to explain the implications of observed behaviors that would
otherwise fall outside the understanding of ordinary people on the jury. In
this appeal, the State suggests, and the appellate panel agreed, that there
is a category of testimony that lies between those two spheres, governed by
the lay opinion rule. The Court does not agree. To permit the lay opinion
rule to operate in that fashion would be to authorize every arresting
officer to opine on guilt in every case. The testimony of the police
detective - because it was elicited by a question that referred to the
officer's training, education and experience - in actuality called for an
impermissible expert opinion. To the extent that it might have been offered
as a lay opinion, it was impermissible both because it was an expression of
a belief in defendant's guilt and because it presumed to give an opinion on
matters that were not beyond the understanding of the jury. In the final
analysis, the approach taken to this testimony by the trial court and the
Appellate Division [*9] would effectively authorize an officer both to
describe the facts about what he or she observed and to opine in ways that
the Court has precluded previously. The Court declines to permit the lay
opinion rule to be so utilized. (Pp. 27-32)

The judgment of the Appellate Division is AFFIRMED in part and REVERSED in
part. Defendant's convictions for the two possessory offenses are affirmed
and the matter is REMANDED for a new trial on the charges of third-degree
possession of a controlled dangerous substance (heroin) with intent to
distribute, and third-degree possession of a controlled dangerous substance
(heroin) with intent to distribute within 1000 feet of a school property.

Law Enforcement Notes

2011-05-20T07:34:00.000-07:00

T HIS WEEK THE NJ SUPREME COURT RULED THAT if a law enforcement officer's notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge. Defendant, charged with sexual assault, was interviewed by law enforcement officers at which time he acknowledged having sexual relations with the alleged victim. Defendant later testified at trial that although he initially denied the allegations, after law enforcement repeated the details over and over again, stating that defendant would be permitted to go home if he complied, he admitted to the accusations. At trial, law enforcement admitted destroying hand written notes taken during interviews conducted with the defendant, pursuant to supervisors' instructions not to retain contemporaneous notes.

The Court, on review, noted that Rule 3:13-3 encompasses the writings of any police officer under the prosecutor's supervision as the chief law enforcement officer of the county. If a case is referred to the prosecutor following arrest by a police officer, or on a complaint by a police officer, local law enforcement is part of the prosecutor's office for discovery purposes. The Court held that implementation of this retention and disclosure requirement is to be deferred for thirty days to allow prosecutors sufficient time to educate police officers. Thereafter, if an officer's notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge molded to the facts of the case. However, the Court held that where, as in this case, a defendant neither requests an adverse inference charge before the jury instructions, nor raises the issue before filing a motion for a new trial, defendant is not entitled to such instruction.

Kentucky v. King

2011-05-20T07:32:00.000-07:00

In Kentucky v. King the United States Supreme Court held that a warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment. During the course of a controlled drug bust, officers in pursuit of a suspected drug dealer smelled marijuana smoke emanating from an apartment. Believing the suspect to be inside, officers preceded to bang on the apartment door “as loud as [they] could” announcing “This is the police” or “Police, police, police.” Upon hearing sounds that led the officers to believe that drug-related evidence was about to be destroyed, the officers announced that they “were going to make entry inside the apartment,” at which time they discovered evidence of drugs.

At trial, defendants contended that an exigency is impermissibly created when officers engage in conduct that would cause a reasonable person to believe that entry was imminent and inevitable. However, the Court rejected this view, determining that the ability of officers to respond to an exigency cannot turn on such subtleties as the officers’ tone of voice in announcing their presence and the forcefulness of their knocks. It further rejected the “bad faith,” “reasonable foreseeability,” “probable cause and time to secure a warrant,” and “standard or good investigative tactics” standards employed by the lower courts. Instead, the Court reasoned that in the vast majority of cases in which persons who are engaged in illegal conduct destroy evidence, the reason for the destruction is fear that the evidence will fall into the hands of law enforcement. Consequently, a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of the exception. Thus, the Court concluded that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment. Because, in this case, the officers did not inform defendants they would make entry until after the exigency arose, the Court concluded that there was no evidence of a Fourth Amendment violation, and remanded for further proceedings consistent with the established standard.

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State v. Rehmann

2011-05-02T13:57:00.000-07:00

On May 1, 2011 in State v. Rehmann, the Appellate Division ruled that the supervisor of a state police laboratory technician would be permitted to testify at the defendant's drunk driving trial, even though the supervisor did not personally test the defendant's blood sample. The Court reasoned that confrontation clause considerations normally require that all fact witnesses who testify have personal knowledge about the substance of their testimony. As a result, surrogate witnesses are not permitted at criminal trials. However, in this particular case, the supervisor was no surrogate witness. He had watched the technician perform the test of the blood sample and had extensive, detailed personal knowledge about how the testing had been performed.

According to the Court, "[T]he Confrontation Clause is not satisfied by calling just anyone to the stand to testify about laboratory tests or other scientific results. A 'straw man' will not do. The State must provide a witness who has made an independent determination as to the results offered."

It is important to note that this is the first time this precise issue has been considered by a New Jersey court. The identical issue is currently before the United State Supreme Court and will be decided later this term. (Bullcoming v. New Mexico, 131 S. Ct. 62 (2010)).

State v. Lee

2011-04-28T10:50:00.000-07:00

State v. Lee, 417 N.J. Super. 219 (App. Div. 2010)

The Appellate Division held that where a defendant's sexual contact is with his own intimate parts in view of an adult victim, conviction on a charge of criminal sexual contact requires proof of physical force or coercion beyond defendant's act of touching himself. The defendant had followed the victim into an elevator and then allegedly exposed his penis to her and began to masturbate. The defendant was charged with criminal sexual contact in violation of N.J.S.A. 2C:14-3b, which requires that one of the circumstances in N.J.S.A. 2C:14-2(c)(1)-(4) be met. The relevant section in this matter was N.J.S.A. 2C:14-2(c)(1), which requires the use of physical force or coercion. The court noted that the defendant did not use any physical force because he never touched her, made any threats to her, or made any other form of communication to her. There was no invasion of her bodily integrity so the state was not relieved of the obligation to show physical force or coercion. As an element of fourth degree sexual assault, when the touching is of the actor himself, the phrase "physical force" means a force other than the touching. The court noted that masturbation in view of a non consenting adult can violate the lewdness statute, which is only a disorderly persons offense.

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State v. Rodriguez-Alejo

2011-04-28T10:48:00.000-07:00

State v. Rodriguez-Alejo, A-0815-09T3, (N.J. Super. App. Div. March 25, 2011)

The defendant was convicted of violating N.J.S.A. 39:4-50.2 for refusing to submit to a breath test. On appeal, the defendant argued that his limited English proficiency prevented him from understanding the instructions regarding the breath sample. The Appellate Division overturned the conviction, finding that the defendant was not sufficiently warned of the breathalyzer process.

During the conversation he had with the arresting officer, the defendant indicated to the officer that he spoke very little English. The defendant was subsequently arrested for driving while intoxicated after failing a field sobriety test. At the police station, the officer administered a breathalyzer test. He quickly read the standard breathalyzer notification to which the defendant replied that he did not understand. When asked if he would submit to the breathalyzer, the defendant replied “I don’t understand” and then “yeah.” The officer did not read to the defendant the part of the breathalyzer notification that explains the effect of a refusal to undergo the test. The officer attempted to use hand gestures and a couple words in Spanish to explain what the defendant had to do. During his testimony at trial, the defendant testified, through an interpreter, that he conducted all his work and social activities in his native language.

In State v. Marquez, which was decided while the present case was pending appeal, the NJ Supreme court found that reading the statement to a motorist in a language they don’t understand is akin to not reading it at all. The holding in Marquez required the court to undertake a retroactivity analysis. The found that decision in Marquez should be given retroactive application which was just and consonant with public policy under State v. Nash, 64 N.J 464, 469 (1974). Neither the purpose of the rule, reliance on the law preceding decisions, nor administration-of-justice considerations justify limiting the rule announced in Marquez to application solely to cases arising after the decision was announced. The court found that the statement should have been read in its entirety in Spanish to the defendant.

Please visit our website for more information on sex crimes defense.

Lay Opinion Rule Reversed

2011-04-06T09:43:00.000-07:00

Today in State v McClean, the NJ Supreme Court reversed a drug conviction which had been partially based upon use of the so called "lay opinion rule" where the police officer testified based upon his training and experience as to what constituted intent to distribute. This type of issue is a hot topic in DWI law as well since State v Bealor alllowed officers to testify upon their training and experience as to marijuana intoxication. The Court here finds that either you are an expert or a lay witness but there is no in between. In the Courts words:

"The Court has established the boundary line that separates factual testimony by police officers from permissible expert opinion testimony. On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. On the other side, the Court has permitted experts with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. In this appeal, the State suggests, and the appellate panel agreed, that there is a category of testimony that lies between those two spheres, governed by the lay opinion rule. The Court does not agree. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case. The testimony of the police detective – because it was elicited by a question that referred to the officer’s training, education and experience – in actuality called for an impermissible expert opinion. "

Judge's Ruling on unreliable Breath-Test Indicator could affect Atlantic County DWI Arrests

2011-02-14T11:23:00.000-08:00

This week something very important in DWI law took place when Judge Max Baker overturned a driving under the influence conviction this week. Judge Baker found that only one brand of thermometer probe should be used to determine the reliability of the breath-test machine.The decision, which covers the entire county, could throw out the results of any machine using another probe, lawyers say. State Police, who regulate the Alcotest breath test, could not immediately say how many police departments in Atlantic County use the component cited by the judge as unreliable.

Municipal prosecutors in Atlantic county will look to Prosecutor Ted Housel in determining what happens next. "I'm sure Mr. Housel will evaluate the issue and give a directive on how to handle future prosecutions in these matters," said Christopher Lipari, the Galloway Township prosecutor who got the conviction that Baker overturned this week. In that case, Emilio Rivera was pulled over Dec. 31, 2009, while driving on the Garden State Parkway. He was eventually administered the Alcotest at the Bass River Barracks, and his case heard in Galloway Township Municipal Court. But after his conviction, attorney Alan Lands appealed on several issues, including the probe manufacturer and that the room where the test was given had not been cleared of all other electronic equipment, as mandated so as not to interfere with the results.

While Ertco-Hart is independently tested, Control tests its own equipment. "If find that that is a critical error," Baker said.

Evan Levow, who argued the state Supreme Court case, said he was glad that Baker detailed why the Control Company's probe should not be an alternative."Not only do you have to meet these standards, it has to be verified independently," he said. Levow said it's likely another company's probe will eventually be approved. Levow said that wouldn't be a problem, as long as the same standards are applied."It looks like Judge Baker was trying to follow the Supreme Court's order," said John Menzel, who also argued the Supreme Court case.

Months of hearings on the Alcotest named only one probe, the Ertco-Hart, he said."Ertco-Hart was not litigated all that much because it's a fine piece of equipment," Menzel said. "The use of the Control Company was never examined, and there was never any consideration of that device (in the case)."

The State Police could not immediately comment on which municipalities have the Ertco-Hart and which have replaced that with the Control Company's probe. Control did not return a request for comment.If the Alcotest results are lost, that does not automatically throw away any DUI cases in the county, Verno said. The prosecutor still would have the field-sobriety test and the officer's testimony."It doesn't necessarily negate all previous and future cases," she said. "But it does create some significant issues."

To learn more about Alcotest and New Jersey DWI laws, please visit the New Jersey DWI laws page a of our Criminal Law Website.

State v. Brown - A Summary

2011-02-10T08:36:00.000-08:00

As a result of an investigation into several robberies and thefts, the defendant was implicated in those crimes. On January 1, 2005, five complaints were prepared against the defendant. Four of them sought authorization to arrest the defendant for various offenses and the fifth complaint charged him with resisting arrest and listed the address of his girlfriend. At the time of the defendant’s arrest, no judicial officer had reviewed the complaints or authorized the defendant’s arrest. That evening, officers went to the girlfriend’s apartment to arrest the defendant and when the police knocked, she opened the door and the defendant fled through a window onto an adjacent roof. Following a twenty-minute standoff, police convinced the defendant to come down and they then arrested him. The next day the defendant had his Miranda rights read to him and he initialed, signed a waiver form and then made incriminating statements. A grand jury indicted the defendant and others for multiple counts of armed robbery and numerous other offenses. The defendant’s motion to suppress his statements, which argued 1) that his arrest was unlawful because the warrants were not authorized until after the arrest , 2) that his subsequent statements were thus inadmissible, and 3) that he did not waive his Miranda rights, was denied.

The New Jersey Supreme Court held that at the time the defendant fled through a window onto a roof next door, the police had engaged in no misconduct; thus, there was no seizure of any sort in the apartment. When the police arrested the defendant after he came down from the roof, they did not need an arrest warrant because they had probable cause to arrest him in a public place (1) for armed robbery committed outside their presence and (2) for resisting arrest, which they observed. Arrest warrants and warrantless arrests in public must be supported by probable cause to believe that a crime has been committed and the person sought to be arrested committed the offense. The statements of The defendant’s co-defendants implicating him in armed robberies meet that test. The parties do not dispute the existence of probable cause. They focus on whether the arrest was lawful in light of the defective arrest warrants. Without a warrant, the State must prove the overall reasonableness of an arrest.

During an ongoing investigation, police did not need a warrant to knock on the door of the defendant’s girlfriend’s apartment. The defendant fled out the window immediately upon learning of the police presence. The defective warrants are irrelevant here. By moving to a public place, the defendant transformed the situation from an arrest in a private apartment, where police would need a warrant, to the public arena, where the police could arrest him without a warrant based on probable cause that he had committed armed robbery. Also, after jumping onto a roof, the defendant created a police standoff in a public place, posing a risk to officers and the public. The police did not need a warrant to arrest for resisting. Substantial, credible evidence in the record supports the finding that the defendant voluntarily waived his Miranda rights. Thus, the statements he made while in police custody were admissible at trial.

To learn more about this and other criminal cases, please visit my New Jersey criminal lawyer site.

Change in Law - Driving with a Suspended License

2011-01-27T13:53:00.000-08:00

Please take notice that as of August 1, 2011, the law regarding driving with a suspended license, N.J.S.A. 2C:40-26, has changed.

It will now be a crime of the 4^th degree if a person drives with a suspended license if the license was suspended for either a first or second violation of Driving While Intoxicated. If you are convicted under this amended the law, the court must sentence you to a term of imprisonment of no less than 180 days, during which you will not eligible for parole.

State v. Murphy

2011-01-26T15:03:00.000-08:00

In State v. Murphy, 412 N.J. Super. 553 ( App. Div. 2010), the defendant had been charged and convicted of possession of CDS. The defendant appealed alleging that the prosecutor has made improper remarks during her closing statement and that the trial court had erred when it permitted the prosecution to impeach the credibility of the defendant using a 17 year old conviction.

In her closing statement, the prosecutor personally vouched for the credibility of the officer who testified against the defendant, indicating that he had no reason to lie in his testimony. When defense counsel objected to the remarks, the trial judge said, in full hearing of the jury, that the remark was a “fair comment” on the evidence. The Appellate Division noted that when reviewing allegedly improper remarks, the court must evaluate the prosecutor’s remarks in the context of the tenor of the trial and the degree of responsiveness of both counsel and the court to the improprieties when they occurred in order to determine when the defendant was denied a fair trial. The Appellate Division found that the remark was improper and was not a harmless error. Because the judge called the remark a “fair comment,” the jury may have been improperly influenced in their determinations of credibility and since the trial essentially would be decided on the basis of credibility of witnesses, this was not simply a harmless error.

The 17 year old conviction was for possession of CDS with intent to distribute. Since the old conviction was so similar to the case at hand, the trial judge sanitized the conviction and only allowed the State to elicit the fact of the conviction, the degree of the crime, and the date of the conviction. The Appellate Division found that the previous conviction did not meet the “serious crimes” standard set out in State v. Sands, 76 N.J. 127 (1978). Under N.J. Rule of Evidence 609, the probative value of the conviction was vastly outweighed by its prejudicial value. Again, because the outcome of the trial would be decided by determinations of credibility, the erroneous admission of the previous conviction was not a harmless error.

Entering a Home Without a Warrant

2011-01-13T11:32:00.000-08:00

The U.S. Supreme Court is wrestling with a case that could give police greater power to forcibly enter a home without a warrant.

The Constitution bars warrantless searches except in certain circumstances — for example, an emergency search to prevent the destruction of evidence. But on Wednesday, the question before the court was whether police, by themselves creating such exigent circumstances, are unconstitutionally evading the warrant requirement.

The case before the court began in 2005 when Lexington, Ky., police banged on the door of an apartment where they thought they smelled marijuana. After loudly identifying themselves, police heard movement inside, and fearing the destruction of evidence, they broke in. Inside they found Hollis Deshaun King smoking marijuana. Police also found marijuana and cocaine on the kitchen counter. King was convicted of drug trafficking and related offenses.

But the Kentucky Supreme Court reversed the conviction. The state court ruled that the drugs found in the apartment could not be used as evidence against King because police had no warrant for the search, and the only emergency circumstances were those created by the police themselves when they loudly alerted the suspect to their presence.

Prosecutors appealed to the U.S. Supreme Court, which heard arguments in the case Wednesday.

Kentucky Assistant Attorney General Joshua Farley told the justices that since the smell of marijuana gave police probable cause to believe a crime was occurring in the apartment, and since police heard movement inside after they knocked, they lawfully broke in to prevent the evidence from being destroyed.

Chief Justice John Roberts tested Farley's theory. "So, you have an apartment building where the police know from experience there is a lot of illegal activity, a lot of drugs." Can police every two weeks "walk through and knock on every door" and break in when they hear movement inside? "Is that all right?"

Farley responded that it would be all right as long as police had separate probable cause to believe a crime was occurring. In this case, he said, the probable cause was the smell of marijuana.

Justice Ruth Bader Ginsburg asked whether this meant that police could merely "sniff at every door," knock on those doors where they smelled marijuana, and break in once they heard a noise.

It "would be perfectly fine for the officers to do that," Farley responded.

Fourth Amendment Issue

But Ginsburg noted that the smell of marijuana would be enough to get a warrant. "We start out with a strong presumption that the Fourth Amendment requires a warrant," she observed. Why wouldn't the police just get a warrant, she asked, rather than knocking on the door and alerting the people inside?

Justice Antonin Scalia pointed out that if the suspects had quickly answered the door and simply refused to permit entry, the police would have been powerless to do more. "The police," he said, "were taking advantage of the stupidity of the criminals."

Justice Elena Kagan worried that allowing police to create exigent circumstances would be "essentially eviscerating the warrant requirement in ... the one place that the Fourth Amendment was most concerned about."

"[I]f there is one place where the warrant requirement has real force," she said, "it's in the home." Without a warrant, she suggested, "all the police really have to say is: 'We saw pot, we heard noise,' " and they would be able to break in.

Kentucky public defender Jamesa Drake, arguing on behalf of the defendant, urged the court to consider the consequences for all citizens if the warrant requirement is diluted.

"There is no difference between what happened in this case and how an innocent person would respond," she said, noting that police had banged on the door loudly at 10 p.m., and all they heard inside was movement — a noise that she seemed to suggest did not necessarily indicate the destruction of evidence.

But Drake seemed unable to persuade the justices that she had a workable rule to supplant the broad one suggested by prosecutors. And she struggled to draw a distinction between this case and what she saw as genuinely exigent circumstances that justify a warrantless search.

A decision in the case is expected by summer.

New Jersey Child Support

2010-12-22T15:48:00.000-08:00

New Jersey Statute N.J.S.A 2A:17-56.23b (1) (a) provides that a judgment for child support entered and docketed with the Clerk of the Superior Court constitutes "a lien against the net proceeds of any settlement negotiated prior or subsequent to the filing of a lawsuit, civil judgment, civil arbitration award, inheritance or workers' compensation award." This lien has "priority over all other levies and garnishments...unless otherwise provided by the Superior Court, Chancery Division, Family Part.

The lien shall not have priority over levies to recover unpaid income taxes owed to the State. The lien shall stay the distribution of the net proceeds to the prevailing party or beneficiary until the child support judgment is satisfied." What this means is that the net proceeds of your personal injury settlement is subject to a lien that must be satisfied before you can recover the proceeds of the settlement. "Net proceeds" of the settlement is defined as "any amount of money, in excess of $2,000...after attorney fees, witness fees, court costs, fees for health care providers, payments to the Medicaid program..., reimbursement to the Division of Employment Security in the Department of Labor, the employer or employer's insurance carrier for temporary disability benefits that may have been paid pending the outcome of a workers' compensation claim..., reimbursement to an employer or the employer's workers' compensation insurance carrier..., and other costs related to the lawsuit, inheritance or settlement are deducted from the award, proceeds or estate..." Therefore, if the net proceeds are $2,000 or less, there is no lien and no need for a search. In addition, the Appellate Division has held that only the amount of the plaintiff's settlement after litigation costs which exceeds $2,000 is subject to the lien imposed by N.J.S.A. 2A:17-56.23b. Simpkins v. Saiani, 811 A. 2d 474, 356 N.J. Super. 26 (App. Div. 2002). Attorneys who represent injured parties in New Jersey are required by law to conduct a search before distributing any settlement proceeds to determine whether the settling party has any child support judgment again him or her.

N.J.S.A 2A:17-56.23b (1) (b) provides that before distributing any net proceeds of a settlement, judgment, inheritance or award to the prevailing party or beneficiary, "(1) the prevailing party or beneficiary shall provide the attorney, insurance company or agent responsible for the final distribution of such funds with a certification that includes the prevailing party's or beneficiary's full name, mailing address, date of birth and Social Security number; and (2) the attorney representing the prevailing party or beneficiary shall initiate a search of child support judgments, through a private judgment search company that maintains information on child support judgments, to determine if the prevailing party or beneficiary is a child support judgment debtor." If the child support search certification shows that the prevailing party or beneficiary is a child support judgment debtor, the attorney that initiated the search shall contact the Probation Division of the Superior Court to arrange for the satisfaction of the child support judgment. The attorney shall notify the prevailing party or beneficiary of the intent to satisfy the child support judgment prior to the disbursement of any funds to the prevailing party or beneficiary. Upon receipt of a warrant of satisfaction for the child support judgment, the attorney shall pay the balance of the settlement to the prevailing party or beneficiary. If the net proceeds are less than the amount of the child support judgment, the entire amount of the net proceeds shall be paid to the Probation Division as partial satisfaction of the judgment.

State v. Hand

2010-11-30T14:20:00.000-08:00

Yesterday in State v Hand, approved for publication, the App Div affirmed the dismissal on double jeopardy grounds of a DWI that was downgraded after a plea to the accompanying indictable reckless endangerment charge (risk of widespread injury). The factual basis at the county was based on this def's 4-50 and driving on a playing field. The court affirmed the use of the "same evidence" test. The court indicted that had the factual basis not included the evidence of driving while intoxicated, the result in this case would not have been dismissal of the 4-50.

With more and more DWIs being sent to the county for 4th and 3rd degree Assault by Auto (which this case was not because there was no actual injury) and the new indictable 3-40 kicking in now, this issue will arise more often if county prosecutor's are not careful with how the accompanying DWI is disposed. The common method is to require a plea to the DWI and merge the offense with the indictable for sentencing.

State of NJ v. Mai

2010-11-22T12:55:00.000-08:00

Argued Oct. 13, 2009

Decided May 6, 2010.

Background: Following a conditional guilty plea after denial of motion to suppress, defendant was convicted in the Superior Court, Law Division, Hudson County, of third-degree unlawful possession of a handgun. Defendant appealed. The Superior Court, Appellate Division, 2009 WL 276716, reversed and remanded. State petitioned for certification.

Holdings: The Supreme Court, Rivera-Soto, J., held that:

(1) police officer making traffic stop had authority to open van's passenger-side sliding door as part of ordering defendant, a passenger, to exit the vehicle;

(2) seizure of loaded gun from floor of van was proper under plain view doctrine;

(3) plain view discovery of gun on floor of van provided sufficient probable cause to arrest defendant; and

(4) loaded ammunition magazine and gun holster were properly seized as fruits of proper search incident to arrest.

Judgment of Appellate Division reversed; judgment of Law Division reinstated.

State of NJ v. Davila

2010-11-16T07:23:00.000-08:00

Argued Feb. 2, 2010.

Decided July 14, 2010.

Background: Defendant was convicted on his guilty plea in the Superior Court, Law Division, Essex County, of two counts of felony murder and one count of conspiracy to commit robbery. Defendant appealed. The Superior Court, Appellate Division, 2009 WL 1010931, affirmed. Defendant petitioned for certification.

Holdings: The Supreme Court, LaVecchia, J., held that:

(1) trial court's conclusion that occupant consented to police officers' entry into apartment rested on a credibility determination for which there was adequate, substantial, and credible support in the record;

(2) as a matter of first impression, a protective sweep conducted on private property is not per se invalid merely because it does not occur incident to an arrest;

(3) a protective sweep may occur when law enforcement officers are lawfully within the private premises for a legitimate purpose and the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger; and

(4) remand was required.

Judgment of Appellate Division reversed; matter remanded.

Another Opinion

2010-11-11T14:17:00.000-08:00

State v. Dunlap, 185 N.J. 543 (2006)

In addition, we reject the State's argument that “it would have been unduly burdensome and unreasonably restrictive to require the police to post a guard and repair to the courthouse for a warrant,” There were at least ten officers present on the evening in question and even assuming that some were needed for other duties in connection with defendant's arrest and the on-going investigation, the State did not establish that an insufficient number **1283 would have been left to guard the car. To say that the late hour made access to a judge difficult or unpracticable, is to ignore the procedures in place for emergent duty judges in every vicinage and the existence, since 1984, of the telephonic warrant procedure. R. 3:5-3(b). Indeed, it is not without significance that the investigators here had time to call the prosecutor's office at about 10:00 pm and obtain verbal authorization for the consensual recording of defendant's conversation with Tiaa.

One final note. Nothing in this opinion should be viewed as a retrenchment from the well-established principles governing the automobile exception to the warrant requirement. The standards remain the same: probable cause and exigent circumstances, each of which to be determined on a case-by-case basis. Here, the unique facts, particularly the presence of ten officers, fully justified the Appellate Division's conclusion that exigency was absent. Different facts, such as a roadside stop effectuated by only one or two officers, would likely have changed the calculus. Police safety and the preservation of evidence remain the preeminent determinants of exigency.

Appellate Opinion

2010-11-01T16:30:00.000-07:00

State v. Cooke, 63 N.J. 657 (2000)

We emphasize that there is a constitutional preference for a warrant, issued by a neutral judicial officer, supported by probable cause. “The cautionary procedure of procuring a warrant ensures that there is a reasonable basis for the search and that the police intrusion will be reasonably confined in scope. The automobile exception applies only in cases in which probable cause and exigent circumstances are evident, making it impracticable for the police to obtain a warrant.

2010-10-15T18:26:00.000-07:00

In this morning's Appellate Division decision in State v. Enright, the Court held that the Law Division is not bound by an improperly granted order under State v. Laurick, 120 N.J. 1 (1990). The order in question provided that the defendant's previous municipal court DWI conviction could not be used for sentence enhancement purposes. However, the Law Division declined to follow the order based upon the fact that underlying relief should never have been granted in municipal court as the defendant wqas legally ineligible for relief under Laurick. The Appellate Division's ruling affirms this decision by the Law Division.

HOWEVER, IT MUST BE NOTED THAT THIS DECISION FOUND THAT THE 'Laurick' orders must be based upon the lack of counsel. It is significant to note, however, that the Court went on to consider ineffective assistance of counsel as a the functional equivalent of lack of counsel for Laurick purposes.

No Legal Requirement for Medicare on Settlement Checks

2010-08-20T07:50:00.000-07:00

Many insurance companies are insisting on putting Medicare as a payee on settlement checks. As Clayton Starnes of The Plaintiff’s Resource points out in the following piece there is no legal requirement for Medicare to be made a payee on settlement checks.

“There is a misconception among payers of personal injury settlements that Medicare, by law, should be named on the settlement check to comply with the Medicare Secondary Payer Provisions of the Social Security Act (MSP). This is not the law and is simply not so. There is no legal requirement to put Medicare’s name as a payee. Medicare is not a party to the lawsuit. Further, Medicare does not request that they be included on the settlement check.

In Tomlinson v. Landers, 2009 WL 1117399 (M.D. Fla. 2009) the Court found that the MSP didn’t require Medicare be on the check. This was an auto accident case with a $100,000 policy limit. The Defendant’s insurance company added Medicare as a payee on the check after the parties agreed to settle the case. Unpleased about it, the Plaintiff returned the check and requested it to be issued without Medicare listed as payee, and further indicated that Medicare would be reimbursed and would agree to hold the insurance company harmless for any Medicare claims. Nonetheless, the carrier insisted that federal law requires that Medicare be included as a payee on the settlement check, citing 42 CFR 411.24(i) and refused to remove Medicare from the check.

The Court stated that Defendant misconstrued the Medicare Secondary Payer Act and the Code of Federal Regulations. The Court found that: 1) federal law does not mandate that a primary payer (or insurer) make payment directly to Medicare; and 2) the insurance company would not have violated federal law if it omitted Medicare from the settlement check.

Although the Court recognized that an insurer may be liable to Medicare if the beneficiary/payee does not reimburse Medicare for any amounts owed to Medicare within 60 days, and may be in the carrier’s best interest, the carrier was not required by federal law to include Medicare on the check. “
Clayton Starnes

State v. Mann

2010-08-05T21:42:00.000-07:00

This morning, the New Jersey Supreme Court ruled that under our state's law, the plain view exception to the warrant requirement has three elements. These include:

1. The police officer must be lawfully in the viewing area.

2. The officer has to discover the evidence ‘inadvertently,’ meaning that he did not know in advance where evidence was located nor intend beforehand to seize it.

3. The officer has probable cause to associate the item with a violation of the law.

The determination by the court in this case, captioned State v. Mann, is important in that recent case law from the United States Supreme Court has called into question whether the "inadvertent" requirement is necessary under the Constitution. This case makes it clear that the three-step analysis is still required under New Jersey law.

State v. Moran

2010-07-26T08:18:00.000-07:00

In State v. Moran, the New Jersey Supreme Court, for the first time, set forth standards that judges are to use when deciding whether (and how long) to suspend a defendant's driving privileges under NJSA 39:5-31. This statute authorizes a license suspension for any "willful" violation of Subtitle 1 of Title 39, the state's motor vehicle code. The court ruled that the motor vehicle code section 39:5-31 applies to situations involving enhanced recklessness, and the court now requires sentencing judge weigh, evaluate and place on the record a number of factors before imposing a license suspension. The mandatory factors are:

1) the 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;

2) 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;

3) 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;

4) whether the character and attitude of the defendant indicates that he or she is likely or unlikely to commit another violation;

5) whether the defendant’s conduct was the result of circumstances unlikely to recur;

6) whether a license suspension would cause excessive hardship to the defendant and/or dependents;

7) the need for personal deterrence; and

8) Any other relevant factors clearly identified by the court also may be considered.

In addition to the foregoing, the Court reasoned that comparisons to motor vehicle statutes that impose mandatory license suspensions also may be a useful guide in some cases. It is not necessarily the number of factors that apply but the weight to be attributed to a factor or factors.

State v. Federico: 180 Max Jail time allowed in Municipal Court

2010-07-22T07:01:00.000-07:00

In a decision handed down this morning, July 12, 2010, the Appellate Division ruled in State v. Federico that jail terms imposed as a result of multiple traffic ticket convictions arising out of a single incident may not exceed 180 days in municipal court.

This case involved a defendant who was convicted of a third offense DWI and driving on the revoked list as a result of a prior DWI conviction. The each of these offenses requires a jail term, a mandatory 180 days on the 3rd offense DWI and 10-45 days on the driving while suspended conviction when the suspension is from a prior DWI. Obviously, the combination of the two mandatory terms exceeded 180 days of municipal court jurisdictional limit. However, the Appellate Division ruled that the maximum sentence any defendant could be sentenced was 180 days because federal constitutional law would ONLY permit a sentence exceeding 180 days following the conviction for a variety of petty offenses stemming from the same incident if there were a jury trial. However, as a matter of long-standing policy, in the absence of the offer of a jury trial, 180 days of incarceration is the maximum permitted in our state for convictions of multiple petty offenses arising from the same incident.

State v. Marquez

2010-07-19T08:36:00.000-07:00

In a stunning 4-3 decision, the New Jersey Supreme Court, reversing the state appellate court, ruled this morning in State v. Marquez that a person who has been arrested for drunk driving has the right to be informed of the obligation to submit to a breath test in the language he speaks. In order to implement the new procedures for those who speak foreign languages, the Court will rely upon the efforts of the Attorney General and the Motor Vehicle Commission to provide a means of having paragraph 36 available in a wide variety of foreign languages spoken in our state.

State v. Privott - lifting clothing during a frisk

2010-07-16T09:59:00.000-07:00

Yesterday, the New Jersey Supreme Court ruled that the fact that the police have a legitimate basis to frisk a criminal suspect for weapons does not provide the officers with the right to lift the suspect's clothing for the purpose of recovering evidence. In State v. Privott, a five-justice majority ruled that,

"In assessing the scope of the search by the officer, the evidence is clear that defendant was cooperative at all times. When stopped, defendant placed his hands against a fence as instructed by the officer. A reasonable search, as well as the least intrusive maneuver needed to protect the safety of the officer against a possible weapon, would have been the traditional pat-down search of defendant’s outer clothing. That did not occur. Rather, the police officer lifted defendant’s

tee-shirt to expose defendant’s stomach, and in doing so, observed a plastic bag with suspected drugs in the waistband of defendant’s pants. That maneuver exceeded the scope of the patdown search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search of defendant that is not condoned."

Medicare Secondary Payer Statute

2010-07-12T12:59:00.000-07:00

NJ appellate Division recently addressed Medicare Liens for personal injury matters in Jackson v. Time Warner, et als. Following a negotiated settlement plaintiff's counsel filed a motion witht he law divsion court seeking a court ordered allocation of the settlement proceeds in an attempt to avoid payment of the Medicare lien. The trial court refused to allocate proceeds. Plaintiff argued that the collateral source rule (NJSA 2A:15-97) barred recovery by Medicare beneficiaries of medical expenses. The appellate court did not agree with that argument. Plaintiff also argued that New Jersey's tort recovery rules are not preempted by the Medicare Secondary Payer Statute. The court stated that state collateral source statutes and other similar statutory schemes that interfere with Medicare's right to reimbursement are preempted.

In other words, before settling any case where there have been conditional medical payments made to medical providers by Medicare as well as the likelyhood that there will be future medicare payments within 36 months from the settlement of the case, the plaintiff's attorney must address this issue for his client or be personally liabile for the payments.

State v. Carjaval – NJ Supreme Court, June 2, 2010.

2010-06-28T15:23:00.000-07:00

Based on information from a confidential informant, the police approached the defendant when he got off a bus from Miami to New Jersey to question him about where he was going. The defendant denied having brought any luggage with him from Miami and then police then asked everyone else on the bus to verify ownership of their luggage by using the claim ticket they had been given when they checked their luggage. After the other passengers verified their luggage one duffel bag remained, which the defendant denied ownership or knowledge of. Based on the fact that the bag appeared to be abandoned, the police searched the bag and found heroin pellets and a health card with the defendant’s name on it.

The New Jersey Supreme Court affirmed the trial court’s finding that the defendant did not have standing to challenge the warrantless search of the bag because he had denied having any possessory or ownership interest in the bag and the police had attempted to find other potential owners among those on the bus. The Court found that he voluntarily and knowingly relinquished any rights he had to the bag and the facts did not suggest that the police were being coercive or overbearing. Based on the totality of the circumstances, the defendant acted consistent with someone who had no ownership interest in the bag.

Additional New Jersey Criminal Law information and Articles

2010-06-17T14:19:00.000-07:00

Quereshi v. Cintas Corporation

Issue: Whether a judge of compensation must award counsel fees in addition to a penalty when an employer fails to make timely payment of temporary disability benefits and the appropriate standard to fashion the reasonable attorneys' fees allowed by statute.

Holding: the award of attorneys' fees is mandatory and the judge of compensation is not limited by the statutory formula governing fee awards following an award of benefits.

Facts: The employer failed to timely pay the temporary benefits as required by a previous order. The judge then assessed a penalty on the original award but did not award additional attorney fees. The Appellate Court found that the judge must award reasonable attorneys' fees when a petitioner has to incur legal fees to obtain the wrongfully or negligently withheld funds.

With respect to the size of the award of attorneys' fees, the court compared the statutory language of § 64 and § 28.1. The court noted that in § 64 there was a specific limit on the size of the award and in § 28.1 there was no corresponding limit. The language of § 28.1 suggests that reasonableness is bounded by the causal relation of the need to incur an attorney's fee to obtain previously award and expected benefits. The legislative history also supports this interpretation.

Searching Without A Warrant Leads to Suppressed Evidence

2010-06-08T15:29:00.000-07:00

State v. Jefferson – App. Div. May 21, 2010.

The charges against the defendant arose form a warrantless search of his person and his residence. The police had detained the defendant to investigate his involvement in a reported shooting of a firearm. When the police went to speak with him he was inside his apartment building, which was not open to the public, and they were standing outside the door. When the defendant stepped back from the door it opened a little and one of the officers wedged herself inside and eventually arrested the defendant. The Appellate Division said that it was unreasonable for the officer to wedge herself through the door and that it was unreasonable for her to believe that she was permitted to move to the threshold to view defendant’s entire body, and not just the top half.

There is no warrant exception that authorizes police to enter a home to make a Terry-type investigative detention of a suspect. However, because the defendant pushed the door into the officer and resisted arrest, the officer lawfully arrested him at that point and conducted a search incident to arrest. The drugs they found on his person at that point were admissible as evidence. The police also found drugs when they subsequently searched the apartment of the defendant and the court found that those drugs should be suppressed, even though the defendant’s girlfriend had signed a waiver, because that evidence was the fruit of the unconstitutional entry into the hallway and the initial sweep of the apartment.

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Amended NewJersey Seatbelt Law

2010-06-05T13:04:00.000-07:00

[5/31/10 - 10:30 pm] The Legisture has amended the provisions of New Jersey's seatbelt law under NJSA 39:3-76-2(f) and (g) to require that all occupants of a passenger automobile, including adults who are seated in the rear utilize a seatbelt when the vehicle is being operated. Under the prior law, adults seated in the rear of a passenger automobile were not required to utilize a seatbelt.

As far as enforcement is concerned, a companion new statute, NJSA 39:3-76.2(n) categorizes seatbelt violations as secondary offenses, meaning that police must detain the vehicle for a different violation before issuing a summons and complaint for this offense.

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State v. Mai - Case Summary

2010-05-10T14:35:00.000-07:00

An officer is allowed to open the door of a vehicle as part of ordering an occupant of the vehicle to exit when facts in the totality of the circumstances create a heightened sense of danger in the officer. This holding is an extension of the holding in State v. Smith, 134 N.J. 599 (1994), which set the standard for when an officer could order an occupant out of the car. The officer only needs to be able to point to some facts in the totality of the circumstances that would create in an officer a heightened sense of danger that would warrant him ordering the passenger out of the car to secure the scene. The Court found no meaningful difference in authorizing an officer to order an occupant out of the vehicle based on a heightened sense of danger and the authority to open the door as part of issuing that lawful order.

Taverns Beware

2010-05-04T12:15:00.000-07:00

On April 29, 2010 the New Jersey Appellate Division decided in the case of Voss v. Tranquilino, that a guilty plea or conviction at trial for a DWI does not bar the intoxicated driver from filing a dram shop suit against the tavern that served him execssive intoxicating liquor. The court addressed the conflict between a statutory bar for a person convicted of DWI from suing for pain and suffering and economic damages and New Jersey's Dram Shop statute which allows individuals who have been injured as a result of patrons served too much alcohol and then caused Motor vehicle accidents.

The court found that although the New Jersey insurance statute provides that a driver of a motor vehicle who is convicted of or pleads guilty a DWI in connection with an accident "shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident." The issue of the appeal is whether this statutory provision bars a dram shop claim by an intoxicated motorist against a liquor licensee that allegedly served him alcoholic beverages when he was visibly intoxicated prior to the motor vehicle accident. Although a literal reading of the statute suggests that all claims are barred, we reach a contrary conclusion. We hold that N.J.S.A. 39:6A-4.5(b) does not bar a dram shop claim because (1) the purpose of the statute is to reduce automobile insurance premiums and its scope should be limited accordingly to losses that are subject to coverage under Title 39; (2) an interpretation barring dram shop claims would unjustifiably constitute repeal by implication of a portion of the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 to -7, commonly referred to as the "Dram Shop Act"; and (3) immunizing liquor licensees from liability in such circumstances would be inimical to the policy of this State of curbing drunk driving.”

Criminal law cases and Police witnesses

2010-04-24T11:11:00.000-07:00

The NJ Appellate Division this morning ruled that it is improper for a prosecutor to attempt to vouch for the credibility of a police witness in summation. In Murphy, the prosecutor noted during summation that the officer who had testified in the case had no stake in the outcome of the trial and no reason to lie. In granting a new trial, the Court held that "[c]redibility was the critical issue in the case," and the "State's entire case rested on the testimony of the officer[.]When a jury must choose which of two opposing versions to credit, it simply cannot be said that the evidence is overwhelming." Thus, when "the jury's determination hinged completely on whether the jurors believed the officer['s] testimony or [defendant's] testimony," a prosecutor's remark that exceeds the bounds of legitimate advocacy can never be deemed harmless.

Statements such as this are often made by the prosecutors at the time of their closing. Now the defense will have the opportunity to object to such a statement! The 'no real stake in the outcome' always created an uphill argument for defendants and I always argued that such a statement would impinge on the defendant's right to remain silent as well.

Criminal Pleas & Deportation

2010-04-12T08:37:00.000-07:00

Yesterday, the US Supreme Court ruled that because of the clear and obvious possiblity of deportation following a conviction for a criminal offense (either by way of plea agreement or trial), the failure of defense counsel to properly advise a client about it can constitute ineffective assistance. The Court went on to note that for purposes of ineffective assistance claims, it does not distinguish between direct (or penal consequences) and so-called collateral consequences, such as deportation. The Justices noted that deporatation is now so routine that it has become a defacto direct consequence. Our New Jersey state Supreme Court has decided this issue in a similar way under the New Jersey Constitution last year in State v. Nunez-Valdez, 200 N.J. 129 (2009).