Requirement to Provide Experts

August 12, 2013

Gordon v. Township of Toms River, Appellate Division A-5139-11T1

Requirement to provide experts

Submitted by New Jersey criminal lawyer Jeffrey Hark

 

August 8, 2013, the Appellate Division affirmed the trial court’s summary judgment against the plaintiff Richard Gordon. On September 27, 2009, Gordon had a few drinks that evening on the Seaside Heights Boardwalk and decided to sleep on the couch at his ex-girlfriend’s home. Upon arrival, he discovered she was not home and called her 14 times, receiving no response he entered the house through the bedroom window. When the plaintiff’s ex-girlfriend returned, she saw his vehicle parked outside and called police. The police arrived with their K-9 officer, Boris and went inside the home. Police made the “K-9 Announcement” and received no response. After a reasonable amount of time Boris was released and apprehended the plaintiff by biting him in his buttocks, right shoulder, left thigh and left calf. The plaintiff was charged with burglary, harassment, stalking and trespassing.

Pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -12-3, the plaintiff alleged excessive force and negligence by the police in handling of the K-9 officer. Defendants moved for summary judgment on two arguments 1) the scarring by the dog bites were not substantial within the meaning of N.J.S.A. 59:9-2(d) and; 2) plaintiff failed to provide expert opinion necessary to establish negligent handling of the K-9 unit. At trial, the judge accepted the medical expert testimony that the dog bites resulted in significant scarring. The plaintiff did not present an expert on proper K-9 unit procedure and the judge thought this was a significant issue. The judge did not think a jury could pass judgment on proper police procedure without a qualified expert and provided the plaintiff an additional 30 days to find an expert. Plaintiff did not provide an expert on police procedure.

The Appellate Division affirmed the trial court’s decision that the plaintiff needed to present an expert on police procedure. Whether or not an expert is required is established in Butler v. Acme Markets, Inc., 89 N.J. 270 (1982), as to if the matter to be decided is so esoteric that jurors cannot form a valid judgment based on their common experience alone. The plaintiff in this case needed an expert on proper police procedure, his allegation of negligence alone was not sufficient. When most citizens have no personal knowledge of the subject matter at issue, such as how police should conduct themselves and their K-9 units, an expert is helpful to the jury to decide an issue which otherwise would be impossible for the jury to decide. The take away is that already high use of experts in litigation is not going to change in the future.

Prior Traffic Convictions and Pre-Trial Intervention (PTI)

State v. Sharp, App. Div.    

 

New Jersey’s Appellate Division recently agreed with a County prosecutor’s office that prior traffic convictions for Driving while Suspended is a correct reason to deny someone from the county’s PTI program.  Mr. Sharp applied for PTI at the county level after he was indicted for driving while suspended after having been previously convicted in municipal court for numerous (4) prior NJSA 39:3-40 driving while suspended charges.  N.J.S.A. 2C:40-26a and b. is a 4^th degree criminalization of serial 3:40 defendants while up to 18 months of incarceration. 

 

After the trial judge Ordered the Prosecutor’s office to admit Mr. Sharp into their PTI program over their objections the state appealed. The appellate panel ruled that the judge erred in finding that the prosecutor's decision to deny defendant PTI admission was a patent and gross abuse of discretion. The court agreed with the prosecutor’s office telling them and all other county prosecutors that defendants with numerous prior 3:40 convictions in municipal court are unacceptable candidates for PTI admission based on their terrible driving records, which indicated a pattern of anti-social behavior and lack of amenability to rehabilitation.  

 

As a result, this and all other defendants with numerous prior 39:3-40 convictions, whose cases are referred to the county prosecutor’s office for indictment under NJSA 2C:40-26 (a) and (b) are looking at mandatory jail time, probation, and NO entry into their county’s PTI program. 

 

Submitted by Jeffrey Hark, a new jersey criminal lawyer http://www.harklawnj.com/

EFFECTIVE CRIMINAL DEFENSE: LEGAL MALPRACTICE

July 16, 2013

State v. Headley, App. Div. A-4256-11T2

EFFECTIVE CRIMINAL DEFENSE LEGAL MALPRACTICE MOTION TO SUPPRESS INCULPATORY STATEMENT WITHOUT MIRANDA WARNINGS SHOULD BE SUPPRESSED!!

July 12, 2013, the Appellate Division reversed and remanded the trial court and Law Division conviction of Junior A. Headley for possession of burglary tools. On June 28, 2011, the defendant was stopped by Sergeant Kopesky in plain clothes and an unmarked car because he matched the description of a black male, wearing a tee shirt and jeans, riding a bicycle on Ivy Lane casing houses. Sergeant Kopesky questioned the defendant about the tools in his back pocket, to which the defendant stated were for his bike, then changed his answer to a construction job and then changed his answer again that he was working at a nearby church. Police determined the tools did not fit the bike, there was no construction job and police located the church that defendant worked for but according to church administrators the defendant was not there earlier.

To uphold a conviction pursuant to N.J.S.A. 2C:5-5 possession of burglary tools and specific intent to use tools to steal property is required. The trial court convicted the defendant based his possession of the burglary and the defendant’s inconsistent stories based upon hearsay testimony from Sergeant Kopesky. On appeal to the Law Division, the Law Division judge acknowledged the merit of the Miranda issues but declined consideration because he did not have authority to reverse. Pursuant to Rule 7:5-2(d) the defendant waived his right to object during trial to evidence that was unlawfully obtained when the defendant did not file a suppression motion before the trial.

The Appellate Division reverses because the Law Division judge can “for good cause shown” remand for retrial and erred by not recognizing his authority to reverse and remand. State v. McLendon, 331 N.J. Super. 104, 109 (App. Div. 2000). Also the Appellate Division reverses because although the defendant failed to adequately explain himself to the officer, the failure to give a good account of oneself cannot be made an essential element of a crime nor be proof of an unlawful purpose. The Law Division should also review the hearsay testimony admitted for a Sixth Amendment violation even though no objection by defense at trial. The take away from this case is that the law Division may reverse a case, even when the defense filed no suppression motions pre-trial or made objections at trial, if the reviewing Law Division judge finds “good cause,” such as constitutional issue.

 

Domestic Violence Criminal Trial Summary: 14-2-0489 State v. Raimondo, App. Div. Docket No. A-0369-11T3

In State v. Raimondo at the trial level, the defendant was convicted of third-degree terroristic threats, N.J.S.A. 2C:12-3a (count one); fourth-degree possession of an illegal butterfly knife and/or a switchblade, N.J.S.A. 2C:39-3e (count two); a fourth-degree certain persons weapons offense, N.J.S.A. 2C:39-7a (count three) and petty disorderly persons offense of harassment.  The case arises out of a domestic violence call. On or about April 22, 2010, the defendant and his wife had a verbal argument that resulted in defendant’s wife seeking a temporary restraining order (TRO) when the defendant threatened he was going to ‘shoot his wife.’  The arrest and weapons seized resulted from a search for the alleged gun the defendant was to shoot his wife with.  The TRO search revealed two rifle rounds, a butterfly knife and a switchblade.   The knives were found in a box against the wall with a pile of other boxes with either a ‘knife’ label or picture thereon.  Prior to trial the defendant’s motion to suppress the knives found from the TRO search was denied. He was subsequently convicted of these weapons offenses.

            On appeal the Appellate Court reversed the weapons convictions based on several errors of the trial court. The Appellate Division found the search violated N.J.S.A. 2C:25-28j and Article I, paragraph 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution that require “probable cause.”  The court further relied upon  State v. Masculin, 355 N.J. Super. 250 (Ch. Div. 2002), which established the immediate apparent illegality doctrine.  The court’s inquiry addressed whether, when the officer seized the box with the weapons in them, was it ‘immediately apparent’ to that officer that the weapons were illegal. Id. at 586-87.  The court ruled that, based on the record, the State failed the “immediately apparent” test and the trial court should have suppressed the weapons.  The second plain error requiring reversal was the jury charge on terroristic threats.  The Appellate Court determined when the trial court included “kicking” and “punching” in the same charge as “shooting” and “killing” the jury was allowed to convict the defendant of terroristic threats to commit a simple assault.

This decision by the Appellate Division reaffirms that search and seizure of weapons under a domestic violence warrant limits evidence in a subsequent criminal trial to the “immediately apparent or whether a further search was required to determine illegality” as established in Harris. State v. Harris, 211 N.J. 566, 587 (2012). The record in State v. Rainmondo indicates the police were looking for guns, not knives and unsure if the knives were illegal. The knives found in Defendant Raimondo’s residence were not immediately apparent to the police and therefore not admissible in the subsequent criminal which was unrelated to the search for a gun which was the sole basis of the TRO and TRO search.

Pubished by domestic violence criminal lawyer, Jeffrey Hark.

Denial of Due Process

On February  7, 2013, the New Jersey Appellate Division decided the case State v. Gibson  (Docket No. A-5163-10T2) and found that the municipal court erred by relying on evidence from a suppression hearing during defendant’s trial on the merits. By doing this, the defendant was denied his due process rights.

Posted by: New Jersey Criminal Lawyer, Jeffery Hark

            The defendant, Bruno Gibson, was arrested by Winslow Township Police for DUI on November 17, 2007. The defendant’s suppression hearing was conducted on May 26, 2010 in municipal court. At the suppression hearing, the defendant argued that police lacked reasonable suspicion to stop his motor vehicle and also lacked probable cause to arrest him for DUI. The municipal court judge heard testimony from the arresting officer that he pulled the defendant over because he was speeding and failed to use his turn signal. Also, the officer stated that he detected an alcoholic odor and that defendant admitted to drinking. The officer then explained that the defendant was ordered to submit to field sobriety testing and that he performed poorly on the one legged stand and walk and turn test. The suppression hearing continued on October 27, 2010 and the defense introduced video footage of the stop to refute the officer’s testimony. The municipal court then determined that the officers had probable cause to stop and arrest the defendant. After that, the municipal court judge proceeded to conduct defendant’s trial on the merits. The municipal prosecutor explained to the judge that they did not have access to defendant’s blood reading and that they would rely on the officer’s observations. The defense counsel then moved to dismiss due to the absence of evidence. The municipal court found defendant guilty of DUI and failing to signal. The municipal judge relied on defendant’s performance on the two field sobriety tests and his post arrest demeanor and behavior.

            The defendant then appealed his conviction and the Law Division conducted a de novo trial. The Law Division judge distinguished State v. Allan, 283 N.J. Super. 622 (Law Div. 1995) (which held that a municipal court should not rely on the suppression hearing in trial on the merits unless defendant receives notice and consents)  from the defendant’s case.  The Law Division Judge found that defendant did not object to a trial based on evidence at the suppression hearing and also failed to show how he was prejudiced by the municipal court procedures. Based on this, the Law Division did not change defendant’s municipal court sentence.

            The defendant then appealed to the Appellate Division. The defendant argued that the State never proved his guilt beyond a reasonable doubt specifically because the state presented no evidence at trial and even if the evidence at the probable cause hearing is deemed to be admissible at trial, the State did not have enough to prove guilty beyond a reasonable doubt. The Appellate Court specifically discussed the Law Division’s findings and explained that the defendant did in fact object to the use of suppression hearing evidence because defense counsel moved to dismiss the charges. The Appellate Court then went into detail about how a suppression hearing is distinctly different from a trial on the merits. Specially, since the trial on the merits determines a defendant’s guilt and in contrast the suppression hearing determines if evidence is admissible based on the lawfulness of police conduct.  Also, the standard of proof at trial is beyond a reasonable doubt but during a suppression hearing the state must by a preponderance of the evidence show that officer had reasonable articulable suspicion to stop the defendant, and probable cause to arrest.

            The Appellate Court also took issue with the fact that the State never presented any evidence during defendant’s trial, considering that the State has the burden of proof of defendant’s guilt beyond a reasonable doubt.

             The Appellate Court found that the municipal court reliance of pre-trial hearing evidence violated the defendant’s right to procedural due process and fundamental fairness. Thus, the Appellate Court ruled that a court cannot be empowered over defendant’s objection, to consider pre-trial suppression hearing evidence in the trial on the merits; and simply proceed to closing arguments without asking defense counsel if he intends to call the defendant and/or witnesses.

Failure to Obey a Legal Command

State v. Rue Not Reported in A.3d, 2013 WL 195520 (App. Div. 2013)

Posted by: New Jersey Criminal Lawyer, Jeffery Hark

On March 15, 2007, two officers were patrolling in a high crime area in Trenton. The officers saw an Oldsmobile stopped in a driveway and a person was leaning into the passenger window. The person that was leaning was recognized by police as a drug offender. The officers stopped their car and shined a flashlight onto the stopped vehicle. The drug offender began walking away and one of the officers went to detain him. The other officer approached the Oldsmobile and before he could get to the vehicle, the driver, who was later determined to be defendant Rue, began to drive out of the driveway. The officer twice commanded the driver (Rue) to stop the car, which defendant ignored. The defendant drove onto the street and the officer followed behind. The officer eventually caught up to the defendant’s vehicle and turned on his overhead lights. At this point, the defendant did not proceed further. The officer then approached the defendant’s car and he saw defendant put his hands near his waistband. The officer commanded the defendant to show his hands, which he initially ignored. The officer was concerned that the defendant might have a weapon so he ordered the defendant to out of his car. Defendant stepped out of the car and put his hands on the roof of his car and at this time, several bundles of heroin fell to the ground out of his pant leg. The officer recovered forty-nine glassine bags of heroin.

At the suppression hearing the defendant testified that he never heard the officer command him to stop when he was pulling his car out of the driveway.

The trial judge found the officer’s testimony to be credible. The trial judge concluded that the officer did not have reasonable suspicion to effect a temporary investigative detention of defendant in the driveway only because defendant was stopped in his car and speaking to a known drug offender. However, the judge concluded that defendant's failure to obey Maxwell's command to stop provided at least reasonable suspicion justifying the officer's subsequent stop of his car at the traffic light and detention of defendant for the offense of obstruction.

The trial court denied defendant's motion to suppress based on its application of the attenuation doctrine as discussed by the Supreme Court in　State v. Marcellus Williams,　192　N.J.　1, 15 (2007). In reliance on that case, the judge concluded that the obstruction offense was an intervening circumstance that dissipated the taint of the initial unconstitutional command to stop, and, therefore, the seizure of heroin resulting from the motor vehicle stop did not violate defendant's constitutional rights against unreasonable search and seizure.

Consequently, Defendant Jason Rue pleaded guilty to illegal drug charges in two indictments. He appealed the denial of his motion to suppress evidence.

The Appellate Division relied on two case, State v. Robert Williams,　410　N.J.Super.　549 (App.Div.2009),　certif. denied,　201　N.J.　440 (2010) and State v. Shaw,　–––　N.J.　–––– (2012), that were decided after the trial court’s ruling in this case. The Appellate Division decided that based on these two cases, that the trial court ruling must be reversed, and the heroin evidence must be suppressed.

In　Robert Williams,　the appellate division held that an unconstitutional order to a fleeing person to stop was not attenuated by the suspect's continuing his flight and thus his obstruction offense.　Robert Williams, supra,　410　N.J.Super.at 564. In the Williams case the appellate division found that the defendant's brief flight on a bicycle from a police command to stop did not give officers reasonable suspicion to detain him. Writing for the court, Judge Skillman considered the three factors of the attenuation doctrine and rejected the State's argument that a defendant's flight is automatically an "intervening circumstance" that dissipates the taint of the initial police conduct.　Id.　at 559–60.　Judge Skillman concluded that, where the defendant did nothing more than violate the obstruction statute by failing to heed a police command to stop, the State did not demonstrate "significant attenuation" of the unconstitutional police conduct.　Id.　at 564.

Additionally, the Supreme Court's December 2012 decision in　Shaw, supra,　–––　N.J.　––––, set stricter limits on the attenuation doctrine. In　Shaw,　the police were attempting to execute a warrant for a fugitive at the apartment complex were he lived. The defendant walked out of the building. Defendant was not the fugitive but, like him, was an African–American man.　Id.　at –––– (slip op. at 12). The police did not see the defendant do anything to suggest he might be involved in criminal activity.　Ibid.　When an officer asked for his name, the defendant refused to identify himself and attempted to walk away.　Id.　at –––– (slip op. at 13). The police detained him to determine his identity. After only a few minutes, other officers arrived and confirmed that the defendant was not the fugitive they were seeking, but they also revealed that an arrest warrant existed for the defendant for an unrelated parole violation. Incident to the defendant's arrest on the parole warrant, drugs were found on his person.　Id.　at –––– (slip op. at 14). In his prosecution on drug charges, the Supreme Court viewed the issue as "whether the drugs found on Shaw were the product of the ‘exploitation’ of the unlawful stop and detention or of a ‘means sufficiently distinguishable’ from the constitutional violation such that the ‘taint’ of the violation was ‘purged.’ "　Id.at –––– (slip op. at 30) (citing　Hudson v. Michigan,　547 U.S. 586, 592, 126 S.Ct. 2159, 2164, 165　L. Ed.2d 56, 65 (2006)). The Court held that the existence of the parole warrant was not a sufficient intervening circumstance to dissipate the taint of the initial unconstitutional detention and the subsequent search of the defendant's person incident to his arrest.　Id.　at –––– (slip op. at 42).

　

The appellate court stated that :

"[t]he decisions in　Shaw　and　Robert Williams　lead us to conclude that the disorderly persons offense of fleeing an unconstitutional police command to stop,N.J.S.A.　2C:29–1(b), without more, does not dissipate the taint of the constitutional violation. Especially where the police seized evidence almost immediately and through a direct chain of causation that included their unconstitutional command, the exclusionary rule and the ‘fruit of the poisonous tree’ doctrine require suppression of the evidence."

Surveillance Discovery Ruling

Surveillance Discovery

In Herrick v. Wilson, the New Jersey Superior Court held that defendants are required to produce copies of the surveillance videos in its possession to the plaintiffs before the plaintiffs are deposed. The plaintiffs in Herrick were involved in a car accident when they were struck by a vehicle driven by a valet driver at Trump Taj Mahal Casino as they were walking across the street. The defendants claimed that they did not want to produce the video surveillance of the accident before the deposition so that the plaintiffs’ memories of the accident were not influenced by the video. The Law Division rejected this claim and held that surveillance that was conducted in the routine course of business but which happened to catch a car or truck accident but be provided to the plaintiffs when requested, without any requirement of deposition testimony being provided first. The court held there is a fundamental difference between video surveillance conducted during litigation to impeach a witness and video surveillance conducted in the normal course of business that happens to show the actual car accident or truck accident. Posted by: New Jersey Criminal Lawyer, Jeffery Hark

Consent to Search

Posted by: New Jersey Criminal Lawyer, Jeffery Hark
Under Article I, paragraph 7 of the New Jersey State Constitution. the validity of a consent to a search must be measured in terms of waiver. State v. Johnson, 68 N.J. 349, 353-54 (1975). “Where the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent.” Id.

Consent to search is not valid when it is the result of duress or coercion, whether express or implied. Johnson at 352 quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). In Schneckloth, the United States Supreme Court held that where the subject of a search is not in custody and the state attempts to justify the search on the basis of consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied, and that while knowledge of a right to refuse consent is one factor to be taken into account, it is not an indispensable element of an effective consent. Id. at 248-49. If an officer threatened you while attempting to obtain your consent to search your vehicle or personal property, there is a strong possibility that any consent given by you is invalid. Consent obtained through the use of threats will likely be considered involuntary under both New Jersey and Supreme Court precedent.

Valid consent for a search requires not only a voluntary relinquishment of rights, but also that such rights were knowingly waived. State v. Johnson, 68 N.J. 349, 353-54 (1975). The State has the heavy burden of proving the consent was knowingly, voluntarily, and intelligently given by clear and positive testimony. State v. King, 44 N.J. 346, 352 (1965). The burden is on the State to show that the individual giving consent to the search knew that he or she had a choice in the matter. Carty, 170 N.J. 632, 639 (2002).

The New Jersey Supreme Court has acknowledged there is a: greater degree of compulsion to accede to a consent search when a motorist is stranded on a highway after a motor vehicle stop for a minor traffic infraction and the detaining police officer requests permission to search than when a person is secure in his own home and not under any form of detention and a similar request is made.

State v. Domicz, 188 N.J. 285, 306 (2006); see also Carty, 170 N.J. at 644. To determine whether the consent was voluntarily given or coerced, the court must determine whether the person had knowingly waived her right to refuse to consent to the search. Id. at 308. An essential element of whether consent was voluntary is “‘knowledge of the right to refuse consent.’” Id. at 317 (quoting State v. Johnson, 68 N.J. 349 (1975)).

If you were not informed you had the right to refuse consent to search prior to the time you orally told the police they could search your vehicle or personal property, that consent may be found to be invalid. Hark & Hark has handled and won numerous cases wherein an individual was forced to give “consent” to search their property and the court found that such consent was invalid.

OUT OF STATE DWI CONVICTION

LICENSE SUSPENSION 05-2-8058 Foehner v. New Jersey Motor Vehicle Commission, App. Div. (per curiam) (5 pp.) Appellant Robert Foehner appeals from the Motor Vehicle Commission's (MVC) denial of an administrative hearing before imposing a 3,650-day suspension of his driver's license due to a fourth conviction for an alcohol-related offense. The MVC asserts that appellant was convicted of his first DUI on May 28, 1986, his second on November 2, 1990, his third on December 19, 1992, and the fourth on September 21, 2011. The first three offenses occurred in New Jersey; the fourth occurred in Arizona. On appeal, appellant notes that the driving history provided with the notice of suspension contained only one prior alcohol-related motor vehicle offense dating back to December 19, 1992. He argues that, as a matter of procedural due process, he is entitled to an agency hearing to evaluate the legal and factual bases for the imposition of a 3,650-day suspension. The appellate panel disagrees and affirms the suspension. Appellant does not contest that he has been convicted of DUI on four occasions, nor does he raise any legal issues to be addressed by the MVC. Rather, appellant merely contends that the MVC did not provide him with proof of all four of his DUI convictions when it initially issued the suspension notice. Since no disputed issues of material fact existed, and no legal issues were raised, no evidentiary hearing was required before the mandatory suspension was imposed. Posted by NJ DWI Lawyer, Jeffrey Hark.

Criminal law cases and Police witnesses

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.