NJ Lawyers Soliciting Traffic Ticket Offenders

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

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

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.

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

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.

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.

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.