Posted by: New Jersey Criminal Lawyer, Jeffery Hark
On July 18, 2012, a new law was approved which dramatically alters the interaction between illegal cell phone use and vehicular homicide prosecutions. Assembly Bill 1074 passed both the New Jersey Assembly and Senate on June 21 and 28 respectfully. This new law creates an inference that individuals who cause death or bodily injury to another with a vehicle while illegally using a cell phone acted recklessly.
Specifically, A1074 amends the text of N.J.S.A. 2C:11-5, which governs Death by auto or vessel charges. Assemb. B. 1074, 215th Legislature 2:19-23. Under 2C:11-5, “criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly.” N.J. Stat. Ann. §2C:11-5 (West 2012). Under A1074, “Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle in violation of section 1 of P.L. 2003, c.310 (C. 39:4-97.3) shall give rise to an inference that the defendant was driving recklessly.” Assemb. B. 1074, 215th Legislature 2:19-23. The bill makes a nearly identical alteration to N.J.S.A. 2C:12-1, the New Jersey criminal assault statute. The alteration to the Assault statute similarly creates an inference of recklessness for illegal cell phone use for those cases where driving the “inferred reckless” driver causes only bodily injury rather than death. Assemb. B. Substitute 1074, 215th Legislature 6:34-38. N.J.S.A. 39:4-97.3 generally prohibits the use of a hand held cell phone while driving save in certain emergency circumstances.
Effectively, this alteration to the law treats cell phone use as the equivalent of driving while intoxicated. Under N.J.S.A. 2C:11-5, “[p]roof that the defendant was driving while intoxicated in violation of [the DWI statute] or was operating a vessel under the influence of alcohol or drugs in violation of section 3 of P.L. 1952, c. 157 (C.12:7-46) shall give rise to an inference that the defendant was driving recklessly.” See Assemb. B. 1074, 215th Legislature 2:15-19. For the purposes of the vehicular homicide and assault statutes, then, the legislature views the usage of a cell phone while driving equal in danger to driving under the influence of drugs or alcohol. This alteration, then, is not only significant in that it expresses the legislature’s negative views of driving while using a hand held cell phone, but also because it may represent the first link in a chain that may well end with cell phone use in general (out of the context of death or serious bodilly injury) being treated in a similar manner as intoxication.
In their statement in support of A1074, the sponsors of the bill state that the purpose of the bill is to “make it easier for prosecutors to obtain convictions for vehicular homicide or assault by auto against a person who illegally uses a cell phone while driving, and, as a result, kills or injures someone. Assemb. B. 1074, 215th Legislature 9:14-17. The sponsors also noted that a conviction for vehicular homicide under the statute carries a sentence of five to ten years and a fine of up to $150,000.00; and that a conviction for assault by auto under the statute carries a sentence of up to 18 months with a 10,000 fine. Id. 9:23-30.
The new law, which has been named the “Kulesh’s, Kubert’s, and Bolis’ Law” after the victims of several “reckless” drivers who had been using their cell phones, greatly raises the potential penalties for those who become involved in accidents because of their cell phones. The act, which went into effect upon its approval by the State Executive on July 18, 2012, could mean severe penalties for those who choose to use hand held phones and end up causing harm to others. At the very least anyone who causes the death or injury of another while driving and using a cell phone will face a significant further hurtle at trial.
Wednesday, July 25, 2012
Thursday, July 19, 2012
State v. Slater withdrawal of guilty pleas brief
Submitted by New Jersey Criminal Attorney, Jeffrey Hark.
State v. Slater withdrawal of guilty pleas brief
I. A defendant’s motion to withdraw a guilty plea should be granted when the balance of the four factors expressed in State v. Slater establish that allowing the plea to stand would manifest injustice.
A motion to withdraw a guilty plea is determined under the standards set in State v. Slater, 198 N.J. 145 (2009). Under Slater, such motions are considered under the same four factor test regardless of whether the motion is made before or after sentencing. Courts deciding such motions must consider:
“(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.”
Id. at 150. If the motion is made prior to sentencing, these four factors are considered under the interests of justice standard of R. 3:9-3(e). Id. at 156. If the motion is made at any point after sentencing, however, the court must consider the four factors under the higher “manifest injustice” standard under R. 3:21-1. Id. Regardless of which standard applies, the burden rests on the defendant to present “some plausible basis for his request, and his good faith in asserting a defense on the merits.” Id. (quoting State v. Smullen, 118 N.J. 408 (1990)). A “whimsical change of mind” by the defendant or prosecutor is not an adequate basis for setting aside a plea. Slater, 198 N.J. at 157.
Under the first prong of the test, a defendant must assert a colorable claim of innocence. Id. at 158. A bare assertion of innocence is insufficient to justify withdrawing a plea. Id. Rather, the defendant must provide the court with “specific, credible facts and, where possible, point to facts in the record that buttress that claim.” Id. In so doing, the court may consider the evidence that was available to the prosecutor and defendant through discovery at the time the defendant entered his plea. Id. The court should not conduct a ‘mini-trial’ in making this determination, but should instead “simply consider whether a defendant’s assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts.” Id. at 159. The motion judge need not be convinced that the defendant presents a winning argument, as that is ultimately an issue for a jury in a criminal trial. State v. Munroe, 2012 WL 2401097 at *6, – N.J. – (N.J. Supreme Ct. June 27, 2012)
The second prong of the Slater test requires the court to review the nature and strength of the defendant’s reasons for the withdrawal of his plea. Id. This factor focuses on “the basic fairness of enforcing a guilty plea” by determining whether the defendant has presented fair and just reasons for his withdrawal. Id. Some examples of fair and just reasons provided by the Slater Court include: the court and prosecutor misinforming the defendant about a material element of the plea negotiation on which the defendant based his plea, a lack of information and understanding of the material terms and consequences of the guilty plea, a defendant’s reasonable expectations under a plea agreement not being met; or a plausible showing of a valid defense against the charges which also credibly demonstrates why that defense was “forgotten or missed” at the time of the plea. Id. at 160. In those cases made after sentencing, the defendant’s motion must be substantiated by strong, compelling reasons. Id. “The longer the delay in raising a reason for withdrawal, or asserting one’s innocence, the greater the level of scrutiny needed to evaluate the claim.” Id. The courts should not assess the nature and strength of the reasons for withdrawal with skepticism, but should instead act with great care and realism, recognizing that defendants oft have little to lose in challenging a guilty plea. Id. The court may rest its ruling, though, on its view of the defendant’s demeanor and candor during the plea and withdrawal hearings.
The third prong of the test requires the judge to decide whether the defendant’s plea was part of a plea bargain. Id. A defendant whose plea was part of a plea bargain will face a heavier burden. Id. As the Court recognized that the vast majority of guilty verdicts arise out of plea agreements, the Court suggests that this factor should not be given great weight in balancing the prongs of the Slater test. Id. at 161. Indeed, the plea bargain question should be given the least weight in the overall analysis. Munroe, 2012 WL 2401097 at *6.
The final prong courts must consider is whether the withdrawal of the defendant’s plea would result in unfair prejudice to the State or an unfair advantage to the accused. Slater, 198 N.J. at 161. The critical inquiry the court must make under this prong is “whether the passage of time has hampered the State’s ability to present important evidence.” Munroe, 2012 WL 2401097 at *6. In so doing, the court should consider the intervening time between the entry of the guilty plea and the hearing of the withdrawal motion. Id. Certain facts will easily demonstrate prejudice to the state, such as the loss or inability to find a needed witness, the faded memories of witnesses on a contested point, or the loss/deterioration of key pieces of evidence. Slater, 198 N.J. at 161.
The court may also consider the State’s efforts leading up to the plea and whether it is fair to require that they be repeated. Id. Court’s should especially consider whether a trial had begun prior to the entrance of the plea. Id. To allow defendants represented by counsel to withdraw voluntary and knowing pleas entered after trial began would greatly impede the administration of justice. Id. at 162. The State, however, is not required to show prejudice in the event that a defendant fails to offer proof in support of the other Slater factors. Id.
Ultimately, in applying these factors, the court must balance the four factors to determine whether the facts meet the “interest of justice” or “manifest injustice” standard depending on the timing of the withdrawal motion. “No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief.” Id. Should the balanced factors produce a showing of manifest injustice or the lower interest of justice standard in those cases where the motion is made before sentencing, the court should grant the defendant’s motion to withdraw his guilty plea.
State v. Slater withdrawal of guilty pleas brief
I. A defendant’s motion to withdraw a guilty plea should be granted when the balance of the four factors expressed in State v. Slater establish that allowing the plea to stand would manifest injustice.
A motion to withdraw a guilty plea is determined under the standards set in State v. Slater, 198 N.J. 145 (2009). Under Slater, such motions are considered under the same four factor test regardless of whether the motion is made before or after sentencing. Courts deciding such motions must consider:
“(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.”
Id. at 150. If the motion is made prior to sentencing, these four factors are considered under the interests of justice standard of R. 3:9-3(e). Id. at 156. If the motion is made at any point after sentencing, however, the court must consider the four factors under the higher “manifest injustice” standard under R. 3:21-1. Id. Regardless of which standard applies, the burden rests on the defendant to present “some plausible basis for his request, and his good faith in asserting a defense on the merits.” Id. (quoting State v. Smullen, 118 N.J. 408 (1990)). A “whimsical change of mind” by the defendant or prosecutor is not an adequate basis for setting aside a plea. Slater, 198 N.J. at 157.
Under the first prong of the test, a defendant must assert a colorable claim of innocence. Id. at 158. A bare assertion of innocence is insufficient to justify withdrawing a plea. Id. Rather, the defendant must provide the court with “specific, credible facts and, where possible, point to facts in the record that buttress that claim.” Id. In so doing, the court may consider the evidence that was available to the prosecutor and defendant through discovery at the time the defendant entered his plea. Id. The court should not conduct a ‘mini-trial’ in making this determination, but should instead “simply consider whether a defendant’s assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts.” Id. at 159. The motion judge need not be convinced that the defendant presents a winning argument, as that is ultimately an issue for a jury in a criminal trial. State v. Munroe, 2012 WL 2401097 at *6, – N.J. – (N.J. Supreme Ct. June 27, 2012)
The second prong of the Slater test requires the court to review the nature and strength of the defendant’s reasons for the withdrawal of his plea. Id. This factor focuses on “the basic fairness of enforcing a guilty plea” by determining whether the defendant has presented fair and just reasons for his withdrawal. Id. Some examples of fair and just reasons provided by the Slater Court include: the court and prosecutor misinforming the defendant about a material element of the plea negotiation on which the defendant based his plea, a lack of information and understanding of the material terms and consequences of the guilty plea, a defendant’s reasonable expectations under a plea agreement not being met; or a plausible showing of a valid defense against the charges which also credibly demonstrates why that defense was “forgotten or missed” at the time of the plea. Id. at 160. In those cases made after sentencing, the defendant’s motion must be substantiated by strong, compelling reasons. Id. “The longer the delay in raising a reason for withdrawal, or asserting one’s innocence, the greater the level of scrutiny needed to evaluate the claim.” Id. The courts should not assess the nature and strength of the reasons for withdrawal with skepticism, but should instead act with great care and realism, recognizing that defendants oft have little to lose in challenging a guilty plea. Id. The court may rest its ruling, though, on its view of the defendant’s demeanor and candor during the plea and withdrawal hearings.
The third prong of the test requires the judge to decide whether the defendant’s plea was part of a plea bargain. Id. A defendant whose plea was part of a plea bargain will face a heavier burden. Id. As the Court recognized that the vast majority of guilty verdicts arise out of plea agreements, the Court suggests that this factor should not be given great weight in balancing the prongs of the Slater test. Id. at 161. Indeed, the plea bargain question should be given the least weight in the overall analysis. Munroe, 2012 WL 2401097 at *6.
The final prong courts must consider is whether the withdrawal of the defendant’s plea would result in unfair prejudice to the State or an unfair advantage to the accused. Slater, 198 N.J. at 161. The critical inquiry the court must make under this prong is “whether the passage of time has hampered the State’s ability to present important evidence.” Munroe, 2012 WL 2401097 at *6. In so doing, the court should consider the intervening time between the entry of the guilty plea and the hearing of the withdrawal motion. Id. Certain facts will easily demonstrate prejudice to the state, such as the loss or inability to find a needed witness, the faded memories of witnesses on a contested point, or the loss/deterioration of key pieces of evidence. Slater, 198 N.J. at 161.
The court may also consider the State’s efforts leading up to the plea and whether it is fair to require that they be repeated. Id. Court’s should especially consider whether a trial had begun prior to the entrance of the plea. Id. To allow defendants represented by counsel to withdraw voluntary and knowing pleas entered after trial began would greatly impede the administration of justice. Id. at 162. The State, however, is not required to show prejudice in the event that a defendant fails to offer proof in support of the other Slater factors. Id.
Ultimately, in applying these factors, the court must balance the four factors to determine whether the facts meet the “interest of justice” or “manifest injustice” standard depending on the timing of the withdrawal motion. “No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief.” Id. Should the balanced factors produce a showing of manifest injustice or the lower interest of justice standard in those cases where the motion is made before sentencing, the court should grant the defendant’s motion to withdraw his guilty plea.
Wednesday, July 11, 2012
Reporting Requirements under Federal Law and Regulations
Submitted by New Jersey Professional License Defense lawyer, Jeffrey Hark
Under Federal law, health care practitioners (including doctors, dentists, etc.) are required to provide certain government entities with information regarding any malpractice judgments or settlements. Under the Health Care Quality Improvement Act, practitioners and other entities (such as health care providers and insurance companies) are required to report certain adverse information to the National Physicians Data Bank. 42 U.S.C. § 11131-34 (2012). Any entity (including insurance companies) which makes payment under a policy of insurance, self-insurance, or otherwise in settlement or partial settlement of a medical malpractice action or claim must report such a payment to the NPDB. § 11131. Though the original regulations that accompanied this law required even individual practitioners to report payments made for malpractice judgments, that view failed to survive judicial review. In 1993, the Circuit Court of Appeals for the D.C. Circuit held that requiring individual practitioners to report payments made out of their own pockets for their own benefit went beyond the scope of authority granted by Congress. American Dental Association v. Shalala, 3 F.3d 445 (D.C. Cir. 1993). That court held that the law clearly stated that “entities” were required to make reports to the NPDB, but individual persons were not so required. Id. As such, the NPDB altered its regulations, such that while a professional corporation or other business entity comprised of a sole practitioner making a payment must report such a payment, a practitioner or other person making a medical malpractice payment out of personal funds is not required to report that payment to the NPDB. See NPDB guidebook, www.npdb-hipdb.hrsa.gov/resources/NPDBGuidebook.pdf, p. E-10.
Federal regulations require that as to any malpractice settlement, judgment, or arbitration award, along with the biographical information of the practitioner and any insurer involved, several pieces of information be filed with the NPDB. 45 C.F.R. § 60.5, 60.7 (2011). With respect to such settlements or judgments resulting in payment, any entity or insurer must provided the NPDB with the following information regarding the settlement: where the action or claim was filed with an adjudicative body including the case number, the dates on which the acts or omissions which gave rise to the action or claim occurred, the date of the settlement or judgment, the amount paid (including the date of payment and whether the payment was for a settlement or judgment), a description of any conditions or terms attached to the settlement, a description of the acts (or omissions, injuries, or illnesses) upon which the claim was based, and a classification of the acts based upon the reporting code. 45 C.F.R. § 60.7. The regulations specifically define a medical malpractice claim or action as “a written complaint or claim demanding payment based on a physician's, dentist's or other health care practitioner's provision of, or failure to provide health care services, and includes the filing of a cause of action based on the law of tort brought in any State or Federal court or other adjudicative body.” 45 CFR 60.3. Sexual harassment, it is worth noting, is an intentional tort under substantive tort law, as are assault and battery. All such medical malpractice settlement payments must be reported to the board within 30 days of when the payment is made. 45 C.F.R. § 60.5(a).
Federal law also requires State Boards of Medical Examiners to report revocations or suspensions to the NPDB. 42 U.S.C. § 11132. State boards must report the revocation, suspension, or restriction of a physician’s license or any censures, reprimands, or probations placed on the physician relating to his professional competence or conduct. Id. the board would also have to require any surrender of such a license. Id. Likewise, federal law requires health care entities to report on adverse actions taken that affect a physician’s clinical privileges. 42 U.S.C. § 11133. Health care entities must report any adverse action taken affecting the clinical privileges of a physician lasting more than 30 days. Id. Likewise, health care entities must provide the NPDB with information regarding the surrender of the clinical privileges by a physician while such a physician is under investigation relating to possible incompetence or improper professional conduct or surrender occurring in return for the entity not conducting such an investigation or proceeding. Id. at (a)(1)(B). Substantive regulations likewise state that all of the following type of organization must report such adverse actions: hospitals, other health care entities, Boards of Medical Examiner State licensing authorities, professional societies of practitioners which take adverse licensure of professional review actions, State licensing or certification authorities, peer review organizations, and private accreditation entities that take negative actions or findings, as well as insurance companies making payments based upon medical malpractice actions or claims. 45 C.F.R. § 60.2. Any adverse action must be reported within 15 days when the entity took that action. 45 C.F.R. § 60.5(c)-(d). Any suspension of license or similar action must be reported within 30 days. Id. at (b). Ultimately, the information that must be reported to the NPDB includes information on any payment in settlement of a malpractice claim as defined above or any adverse action restricting licensure or privileges.
Federal regulations require that as to any malpractice settlement, judgment, or arbitration award, along with the biographical information of the practitioner and any insurer involved, several pieces of information be filed with the NPDB. 45 C.F.R. § 60.5, 60.7 (2011). With respect to such settlements or judgments resulting in payment, any entity or insurer must provided the NPDB with the following information regarding the settlement: where the action or claim was filed with an adjudicative body including the case number, the dates on which the acts or omissions which gave rise to the action or claim occurred, the date of the settlement or judgment, the amount paid (including the date of payment and whether the payment was for a settlement or judgment), a description of any conditions or terms attached to the settlement, a description of the acts (or omissions, injuries, or illnesses) upon which the claim was based, and a classification of the acts based upon the reporting code. 45 C.F.R. § 60.7. The regulations specifically define a medical malpractice claim or action as “a written complaint or claim demanding payment based on a physician's, dentist's or other health care practitioner's provision of, or failure to provide health care services, and includes the filing of a cause of action based on the law of tort brought in any State or Federal court or other adjudicative body.” 45 CFR 60.3. Sexual harassment, it is worth noting, is an intentional tort under substantive tort law, as are assault and battery. All such medical malpractice settlement payments must be reported to the board within 30 days of when the payment is made. 45 C.F.R. § 60.5(a).
Federal law also requires State Boards of Medical Examiners to report revocations or suspensions to the NPDB. 42 U.S.C. § 11132. State boards must report the revocation, suspension, or restriction of a physician’s license or any censures, reprimands, or probations placed on the physician relating to his professional competence or conduct. Id. the board would also have to require any surrender of such a license. Id. Likewise, federal law requires health care entities to report on adverse actions taken that affect a physician’s clinical privileges. 42 U.S.C. § 11133. Health care entities must report any adverse action taken affecting the clinical privileges of a physician lasting more than 30 days. Id. Likewise, health care entities must provide the NPDB with information regarding the surrender of the clinical privileges by a physician while such a physician is under investigation relating to possible incompetence or improper professional conduct or surrender occurring in return for the entity not conducting such an investigation or proceeding. Id. at (a)(1)(B). Substantive regulations likewise state that all of the following type of organization must report such adverse actions: hospitals, other health care entities, Boards of Medical Examiner State licensing authorities, professional societies of practitioners which take adverse licensure of professional review actions, State licensing or certification authorities, peer review organizations, and private accreditation entities that take negative actions or findings, as well as insurance companies making payments based upon medical malpractice actions or claims. 45 C.F.R. § 60.2. Any adverse action must be reported within 15 days when the entity took that action. 45 C.F.R. § 60.5(c)-(d). Any suspension of license or similar action must be reported within 30 days. Id. at (b). Ultimately, the information that must be reported to the NPDB includes information on any payment in settlement of a malpractice claim as defined above or any adverse action restricting licensure or privileges.
Reporting Requirements under New Jersey Law
Submitted by New Jersey Professional License Defense lawyer, Jeffrey Hark
As with federal law, the law of New Jersey requires practitioners and other health care entities to make certain disclosures to government agencies regarding medical malpractice settlements. Under the substantive state law of New Jersey, there are several provisions which impact the reporting of settlements to the State Board of Medical Examiners or other state entity. Under N.J.S.A. 17:30D-17, any insurer or insurance association which is authorized to issue medical malpractice insurance in New Jersey is required to notify the Medical Practitioner Review Panel of any medical malpractice claim settlement, judgment, or arbitration award. In addition, under the requirements of N.J.S.A. 45:9-19.9, insurers or practitioners must notify the review board of not only medical malpractice claim settlements and adjudications, but also any terminations or denial of or surcharge on the medical malpractice liability insurance coverage of a practitioner. That section also allows the panel to receive referrals from the State Board including complaints alleging professional misconduct, incompetence, negligence or impairment from other health care providers or consumers. N.J.S.A. 45-9-19.9(b). These complaints, however, are not mandatory.
The New Jersey state law also places a burden of informing the state medical board on practitioners themselves. Practitioners are required to update the board as necessary to ensure that their consumer protection profile contains all of the required information. N.J.S.A. 45:9-22.22. While much of that information is biographical, the profile also requires that the practitioner inform the board of a number of pieces of information regarding legal action. First, practitioners must inform the board of any criminal convictions of a sufficient degree (for crimes of the first, second, third or fourth degree) within the most recent ten years. N.J.S.A. 45:9-22.23(a)(6). Second, information must be provided including a description of any final board disciplinary actions within the most recent 10 years, including actions being appealed, though these will be identified as such. Id. at (a)(7). Likewise, the statute requires that the board receive a description of any final disciplinary actions in that same 10 year period from any out of state licensing boards. Id. at (a)(8). The board must also receive a description of any revocation or involuntary restriction of the privileges at a health care facility for reasons related to a practitioner’s competence, misconduct, or impairment. Id. at (a)(9). Such reportable incidents include non-renewal of staff membership, or the restriction of privileges taken in lieu of or in settlement of disciplinary cases within the past 10 years. The State Board defined such restrictions of privileges actions as “a privileges action must be related to the physician’s professional competence or conduct in a way that adversely affects or could adversely affect the patient’s health or welfare.” See http://www.state.nj.us/lps/ca/bme/reportob/obligations.htm. Such actions must be reported to the board and submitted to the National Practitioner’s Data Bank if the action lasts more than 30 days. Id.
Perhaps the most important reporting requirement in the statute is the requirement that all medical malpractice judgments, arbitration awards, and all settlements within the most recent five years be reported to the board. N.J.S.A. 45:9-22.23(a)(10). The law states that the practitioner must report all settlements of medical malpractice claims in which a payment is made to the complaining party within the most recent five years. Id. The reporting of claims and settlements, though, is handled in a specific manner. Pending claims will not be included in the profile nor disclosed to the public, malpractice claims being appealed shall be identified as such, the payment of claims shall be placed into context based on the number of judgments against the practitioner, and any settlements in the profile will be disclaimed. Id. Specifically, all settlement information placed into the record shall contain language to the effect that “Settlement of a claim and, in particular, the dollar amount of the settlement may occur for a variety of reasons, which do not necessarily reflect negatively on the professional competence or conduct of the physician (or podiatrist or optometrist). A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.” Id. at (a)(10)(d). One should note, however, that New Jersey law doesn’t have a single cogent definition of “medical malpractice,” so it is not entirely clear which activities, beyond the obvious, would trigger the reporting requirements. As with the federal laws and regulations, the state of New Jersey ultimately requires the reporting of any medical malpractice claim settlement payment and any adverse action taken against the privileges of the practitioner to the State, and ultimately, to the NPDB.
As with federal law, the law of New Jersey requires practitioners and other health care entities to make certain disclosures to government agencies regarding medical malpractice settlements. Under the substantive state law of New Jersey, there are several provisions which impact the reporting of settlements to the State Board of Medical Examiners or other state entity. Under N.J.S.A. 17:30D-17, any insurer or insurance association which is authorized to issue medical malpractice insurance in New Jersey is required to notify the Medical Practitioner Review Panel of any medical malpractice claim settlement, judgment, or arbitration award. In addition, under the requirements of N.J.S.A. 45:9-19.9, insurers or practitioners must notify the review board of not only medical malpractice claim settlements and adjudications, but also any terminations or denial of or surcharge on the medical malpractice liability insurance coverage of a practitioner. That section also allows the panel to receive referrals from the State Board including complaints alleging professional misconduct, incompetence, negligence or impairment from other health care providers or consumers. N.J.S.A. 45-9-19.9(b). These complaints, however, are not mandatory.
The New Jersey state law also places a burden of informing the state medical board on practitioners themselves. Practitioners are required to update the board as necessary to ensure that their consumer protection profile contains all of the required information. N.J.S.A. 45:9-22.22. While much of that information is biographical, the profile also requires that the practitioner inform the board of a number of pieces of information regarding legal action. First, practitioners must inform the board of any criminal convictions of a sufficient degree (for crimes of the first, second, third or fourth degree) within the most recent ten years. N.J.S.A. 45:9-22.23(a)(6). Second, information must be provided including a description of any final board disciplinary actions within the most recent 10 years, including actions being appealed, though these will be identified as such. Id. at (a)(7). Likewise, the statute requires that the board receive a description of any final disciplinary actions in that same 10 year period from any out of state licensing boards. Id. at (a)(8). The board must also receive a description of any revocation or involuntary restriction of the privileges at a health care facility for reasons related to a practitioner’s competence, misconduct, or impairment. Id. at (a)(9). Such reportable incidents include non-renewal of staff membership, or the restriction of privileges taken in lieu of or in settlement of disciplinary cases within the past 10 years. The State Board defined such restrictions of privileges actions as “a privileges action must be related to the physician’s professional competence or conduct in a way that adversely affects or could adversely affect the patient’s health or welfare.” See http://www.state.nj.us/lps/ca/bme/reportob/obligations.htm. Such actions must be reported to the board and submitted to the National Practitioner’s Data Bank if the action lasts more than 30 days. Id.
Perhaps the most important reporting requirement in the statute is the requirement that all medical malpractice judgments, arbitration awards, and all settlements within the most recent five years be reported to the board. N.J.S.A. 45:9-22.23(a)(10). The law states that the practitioner must report all settlements of medical malpractice claims in which a payment is made to the complaining party within the most recent five years. Id. The reporting of claims and settlements, though, is handled in a specific manner. Pending claims will not be included in the profile nor disclosed to the public, malpractice claims being appealed shall be identified as such, the payment of claims shall be placed into context based on the number of judgments against the practitioner, and any settlements in the profile will be disclaimed. Id. Specifically, all settlement information placed into the record shall contain language to the effect that “Settlement of a claim and, in particular, the dollar amount of the settlement may occur for a variety of reasons, which do not necessarily reflect negatively on the professional competence or conduct of the physician (or podiatrist or optometrist). A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.” Id. at (a)(10)(d). One should note, however, that New Jersey law doesn’t have a single cogent definition of “medical malpractice,” so it is not entirely clear which activities, beyond the obvious, would trigger the reporting requirements. As with the federal laws and regulations, the state of New Jersey ultimately requires the reporting of any medical malpractice claim settlement payment and any adverse action taken against the privileges of the practitioner to the State, and ultimately, to the NPDB.
State v. Palma, Docket No. A-3473-10T3 (App. Div. June 26, 2012)
Published by New Jersey DWI Lawyer, Jeffrey Hark.
On June 26, 2012, the Appellate Division delivered an opinion in State v. Palma which redefined the standards which municipal and law division judges must use in determining whether or not to deliver a custodial sentence for careless driving violations. In Palma, the defendant had been driving in Red Bank, NJ, on February 22, 2010, in the mid afternoon. Slip. Op. at 2. The defendant stopped at a red light at the intersection of Bergen Place and Broad Street. Id. After the light changed to green, the defendant made a left turn and began traveling north on Broad Street. Id. After a few moments, a driver in the southbound lane signalled to the defendant that she had hit a pedestrian, and she stopped her vehicle immediately. Id. Without knowing it, the defendant had struck a pedestrian, who then became lodged under her SUV and was then dragged down Broad Street. Id. The pedestrian would die some two months later of the injuries sustained in the accident. Id.
Blood tests determined that the defendant was not intoxicated at the time of the accident. Id. Likewise, defendant’s voluntarily produced cell phone records did not provide any evidence that she was using her cell phone at the time of the accident. Id. The Appellate Division also stated that there was no evidence which showed that the defendant had intentionally struck the victim, fallen asleep, run the traffic signal, exceeded the speed limit, or had acted recklessly. The State, based on the evidence, charged Palma with careless driving, to which she pled guilty. Id. at 3.
During the municipal court plea hearing, the Municipal Court Judge stated that he possessed knowledge of the case stemming from such sources as newspapers. Id. at 5. The judge then personally read through the evidence that had been provided to the State. Id. at 6. The Judge also mischaracterized the events of this case as someone being “murdered.” Id. The defendant entered a guilty plea and provided the court with a factual basis for that plea, however the municipal court judge decided to make further factual findings based upn his reading of the record including police reports and witness statements. Id. The judge “found” that the defendant was “busilly engaged on her [cell] phone” and was on her phone “all the time.” The judge also made findings including a detailed description of the accident not based upon the defendant’s factual basis, but rather from his own review of discovery materials. Id. These findings, the Appellate Division noted, were not supported by the defendant’s plea allocution or evidential cell phone records. Id. at 7. Though the municipal court judge referenced State v. Moran, 202 N.J. 311 (2010), he did not properly follow the principles found therein, and instead stated that “Someone has to realize that they have to pay... for the consequences of their actions.” Palma, Slip. Op. at 7.
The defendant was sentenced to a 90 day suspension of driving privileges, fines and costs of $241, and a fifteen day jail sentence. Id. at 2. Palma then appealed to the Law Division. At a trial de novo in the Law Division, the suspension was consensually vacated, but the judge imposed the same sentence as the municipal court based upon the record provided by that court. Id. On Review, the Appellate Division, though it characterized the municipal judge’s behavior as “inappropriate,” did not find that there was any actual bias on the part of the Law Division. Id. at 7.
During its consideration, the Law Divison attempted to follow State v. Moran and State v. Henry, 418 N.J. Super. 481 (Law Div. 2010), in passing its sentence. The Appellate Division, in reviewing this sentence, held that the decision to follow Moran and Henry was correct, but that decision was tainted by an insufficient record on which the Law Division’s sentence was based. As such, the Appellate Division remanded the case to the Law Division to develop the record properly and deliver a new sentence in line with Moran and Henry. Palma, slip. Op. at 8.
In Henry, the Law Division held that in sentencing a DUI offender, the court “should apply, with appropriate tailoring, the aggravating and mitigating factors prescribed by the Criminal Code for sentencing of offenses and crimes.” Id. at 8. Though the Criminal Codes factors are not mandated for traffic offenses, they provide appropriate guidelines for a court’s exercise of discretion. Id.
In Moran, the New Jersey Supreme Court directed lower courts to consider a number of factors when determining whether to impose a license suspension for reckless driving. Id. at 9. The Court instructed judges to consider the following factors when determining the amount of time, if any, for which the defendant’s license should be suspended:
[T]he nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage; the defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions; whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation; whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation; whether the defendant's conduct was the result of circumstances unlikely to recur; whether a license suspension would cause excessive hardship to the defendant and/or dependants; and the need for personal deterrence․ Any other relevant factor clearly identified by the court may be considered as well. It is not necessarily the number of factors that apply but the weight to be attributed to a factor or factors.
Palma, Slip. Op. at 10 (quoting Moran, 202 N.J. at 328-29). The Moran Court further stated that a license suspension should only occur in reckless driving cases that present aggravating circumstances. Id.
The Appellate Division held that the Moran sentencing principles apply equally to the question of whether a custodial sentence is appropriate for careless driving, a lesser charge than reckless driving which involves the same requirement that the conduct be “in a manner so as to endanger or be likely to endanger, a person or property.” Id. at 11. Just as a judge must examine any indicia of willful or wanton conduct in reckless driving, so must judges in careless driving identify the behavior that constitutes driving carelessly, without due caution and circumspection. Id.
As with reckless driving, the Appellate Division held that only in careless driving cases that present aggravating circumstances may a defendant receive a custodial sentence or license suspension. Id. Aggravating circumstances must be based upon the facts in the judge’s factual findings and must then be appropriately weighed under the Moran principles. Id. at 11-12. Turning to Palma’s sentencing in the Law Division, the Appellate Division noted that the record on which the Law Division based its sentence was not sufficiently developed to enable a proper Moran weighing. Id. at 12. Indeed, the Law Division’s sentence was based upon the Municipal Court’s findings which were based not on the evidence, but primarily from non-evidentiary sources. Id. Though the victim in this case suffered “the ultimate harm,” the death of the victim is not in and of itself sufficient to decide the issue. Id. The municipal judge did not consider the age of the defendant, the length of time she’d been driving, any discussion of the civil settlement, or the hardship to defendant or her dependents, all of which are to be considered when balancing the facts under Moran. Id.
As such, the Appellate Division held that he Law Division should have further developed the factual record based only upon evidentiary sources before delivering its sentence. Id. at 13. The Appellate Division, therefore, remanded the case and ordered the Law Division to conduct further proceedings which would supplement the record before reconsidering the defendant’s sentence under the Moran principles. Id. Ultimately, the Appellate Division held that a custodial sentence could not be imposed without a showing of aggravating circumstances, which would not be established solely by the death of the victim, properly balanced under Moran. Id.
Blood tests determined that the defendant was not intoxicated at the time of the accident. Id. Likewise, defendant’s voluntarily produced cell phone records did not provide any evidence that she was using her cell phone at the time of the accident. Id. The Appellate Division also stated that there was no evidence which showed that the defendant had intentionally struck the victim, fallen asleep, run the traffic signal, exceeded the speed limit, or had acted recklessly. The State, based on the evidence, charged Palma with careless driving, to which she pled guilty. Id. at 3.
During the municipal court plea hearing, the Municipal Court Judge stated that he possessed knowledge of the case stemming from such sources as newspapers. Id. at 5. The judge then personally read through the evidence that had been provided to the State. Id. at 6. The Judge also mischaracterized the events of this case as someone being “murdered.” Id. The defendant entered a guilty plea and provided the court with a factual basis for that plea, however the municipal court judge decided to make further factual findings based upn his reading of the record including police reports and witness statements. Id. The judge “found” that the defendant was “busilly engaged on her [cell] phone” and was on her phone “all the time.” The judge also made findings including a detailed description of the accident not based upon the defendant’s factual basis, but rather from his own review of discovery materials. Id. These findings, the Appellate Division noted, were not supported by the defendant’s plea allocution or evidential cell phone records. Id. at 7. Though the municipal court judge referenced State v. Moran, 202 N.J. 311 (2010), he did not properly follow the principles found therein, and instead stated that “Someone has to realize that they have to pay... for the consequences of their actions.” Palma, Slip. Op. at 7.
The defendant was sentenced to a 90 day suspension of driving privileges, fines and costs of $241, and a fifteen day jail sentence. Id. at 2. Palma then appealed to the Law Division. At a trial de novo in the Law Division, the suspension was consensually vacated, but the judge imposed the same sentence as the municipal court based upon the record provided by that court. Id. On Review, the Appellate Division, though it characterized the municipal judge’s behavior as “inappropriate,” did not find that there was any actual bias on the part of the Law Division. Id. at 7.
During its consideration, the Law Divison attempted to follow State v. Moran and State v. Henry, 418 N.J. Super. 481 (Law Div. 2010), in passing its sentence. The Appellate Division, in reviewing this sentence, held that the decision to follow Moran and Henry was correct, but that decision was tainted by an insufficient record on which the Law Division’s sentence was based. As such, the Appellate Division remanded the case to the Law Division to develop the record properly and deliver a new sentence in line with Moran and Henry. Palma, slip. Op. at 8.
In Henry, the Law Division held that in sentencing a DUI offender, the court “should apply, with appropriate tailoring, the aggravating and mitigating factors prescribed by the Criminal Code for sentencing of offenses and crimes.” Id. at 8. Though the Criminal Codes factors are not mandated for traffic offenses, they provide appropriate guidelines for a court’s exercise of discretion. Id.
In Moran, the New Jersey Supreme Court directed lower courts to consider a number of factors when determining whether to impose a license suspension for reckless driving. Id. at 9. The Court instructed judges to consider the following factors when determining the amount of time, if any, for which the defendant’s license should be suspended:
[T]he nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage; the defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions; whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation; whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation; whether the defendant's conduct was the result of circumstances unlikely to recur; whether a license suspension would cause excessive hardship to the defendant and/or dependants; and the need for personal deterrence․ Any other relevant factor clearly identified by the court may be considered as well. It is not necessarily the number of factors that apply but the weight to be attributed to a factor or factors.
Palma, Slip. Op. at 10 (quoting Moran, 202 N.J. at 328-29). The Moran Court further stated that a license suspension should only occur in reckless driving cases that present aggravating circumstances. Id.
The Appellate Division held that the Moran sentencing principles apply equally to the question of whether a custodial sentence is appropriate for careless driving, a lesser charge than reckless driving which involves the same requirement that the conduct be “in a manner so as to endanger or be likely to endanger, a person or property.” Id. at 11. Just as a judge must examine any indicia of willful or wanton conduct in reckless driving, so must judges in careless driving identify the behavior that constitutes driving carelessly, without due caution and circumspection. Id.
As with reckless driving, the Appellate Division held that only in careless driving cases that present aggravating circumstances may a defendant receive a custodial sentence or license suspension. Id. Aggravating circumstances must be based upon the facts in the judge’s factual findings and must then be appropriately weighed under the Moran principles. Id. at 11-12. Turning to Palma’s sentencing in the Law Division, the Appellate Division noted that the record on which the Law Division based its sentence was not sufficiently developed to enable a proper Moran weighing. Id. at 12. Indeed, the Law Division’s sentence was based upon the Municipal Court’s findings which were based not on the evidence, but primarily from non-evidentiary sources. Id. Though the victim in this case suffered “the ultimate harm,” the death of the victim is not in and of itself sufficient to decide the issue. Id. The municipal judge did not consider the age of the defendant, the length of time she’d been driving, any discussion of the civil settlement, or the hardship to defendant or her dependents, all of which are to be considered when balancing the facts under Moran. Id.
As such, the Appellate Division held that he Law Division should have further developed the factual record based only upon evidentiary sources before delivering its sentence. Id. at 13. The Appellate Division, therefore, remanded the case and ordered the Law Division to conduct further proceedings which would supplement the record before reconsidering the defendant’s sentence under the Moran principles. Id. Ultimately, the Appellate Division held that a custodial sentence could not be imposed without a showing of aggravating circumstances, which would not be established solely by the death of the victim, properly balanced under Moran. Id.
Wednesday, June 20, 2012
New DWI Bill - New Jersy
New DWI Bill¬
Published by New Jersey DWI Lawyer, ,Jeffrey Hark.
On June 7, 2012, Assemblymen Albano, Milam, Amodeo, Mainor, Burzichelli, and Casagrande introduced into the New Jersey State Assembly a new bill which, if passed, would criminalize repeated DWI offenses within a certain time period. Should the new law pass, any person convicted of a second Driving While Intoxicated or refusal to submit to a breathalyzer test violation (a violation of either N.J.S.A. 39:4-50 or 39:4-50.4a) within sixty days of a first such violation shall, in addition to the normal penalties for those convictions, be presumptively guilty of a crime of the fourth degree; an indictable offense. Assemb. B. 3057, 215th Legislature 2:8-13 (NJ 2012). The bill would also require law enforcement personnel to input any summons for DWI into the appropriate record system within three hours of the end of their shift. Id. at 2:15-19.
In addition to introducing the new fourth degree crime, the bill also sets certain standards regarding the effects of a charge for that crime. In every case where a person is charged with this new crime, the court may require the posting of bail up to $10,000. Id. at 2:21-25. Also, during the bail hearing for those charged with this new crime, the court will be required to suspend any “license certificate or any nonresident reciprocity privilege to operate any motor vehicle or motorized bicycle held by the individual charged.” Id. at 2:26-31. The bill would also require the court at the bail hearing to issue a temporary order prohibiting the defendant from obtaining a license to operate a motor vehicle or bicycle in New Jersey. Id. at 2:31-33. The bill, if passed, would take effect immediately. Id. at 2:35.
In their introductory statement, the sponsors of the bill noted the effect the bill would have upon the amount of bail that may be enforced for a crime of the fourth degree and discussed the effects of the bill, but did not elaborate on the bill’s purpose or source. Id. at 2:40-47, 3:1-30. Local reporters have noted, however, that the bill arose out of the case of Anderson Sotomayor, of Vineland, who was charged with five DWIs in thirty-eight days, including an event wherein Sotomayor crashed into a parked police vehicle. See generally New Jersey Press Media, Tougher DUI bill moves forward, COURIER POST ONLINE (June 8, 2012, 1:32 PM), http://www.courierpostonline.com/article/20120608/NEWS01/306080016/Tougher-DUI-bill-moves-forward; Jim Cook, Jr., Criminalizing repeat drunken driving is aim of N.J. Assembly bill after Vineland man’s fifth DWI, NJ.COM (June 8, 2012, 1:32 PM), http://www.nj.com/cumberland/index.ssf/2012/06/nj_assemblymen_sponsoring_bill.html; Tougher DWI bill moves forward, THE DAILY JOURNAL (June 8, 2012, 1:32 PM), http://www.thedailyjournal.com/article/20120608/NEWS01/306080033. The bill was approved by the Assembly Law and Public Safety Committee in a 10-1 vote on Thursday, June 7, 2012. Id. The bill will now move to the full Assembly for consideration, while a sister bill awaits consideration by the New Jersey Senate Law and Public Safety committee. Id.
Published by New Jersey DWI Lawyer, ,Jeffrey Hark.
On June 7, 2012, Assemblymen Albano, Milam, Amodeo, Mainor, Burzichelli, and Casagrande introduced into the New Jersey State Assembly a new bill which, if passed, would criminalize repeated DWI offenses within a certain time period. Should the new law pass, any person convicted of a second Driving While Intoxicated or refusal to submit to a breathalyzer test violation (a violation of either N.J.S.A. 39:4-50 or 39:4-50.4a) within sixty days of a first such violation shall, in addition to the normal penalties for those convictions, be presumptively guilty of a crime of the fourth degree; an indictable offense. Assemb. B. 3057, 215th Legislature 2:8-13 (NJ 2012). The bill would also require law enforcement personnel to input any summons for DWI into the appropriate record system within three hours of the end of their shift. Id. at 2:15-19.
In addition to introducing the new fourth degree crime, the bill also sets certain standards regarding the effects of a charge for that crime. In every case where a person is charged with this new crime, the court may require the posting of bail up to $10,000. Id. at 2:21-25. Also, during the bail hearing for those charged with this new crime, the court will be required to suspend any “license certificate or any nonresident reciprocity privilege to operate any motor vehicle or motorized bicycle held by the individual charged.” Id. at 2:26-31. The bill would also require the court at the bail hearing to issue a temporary order prohibiting the defendant from obtaining a license to operate a motor vehicle or bicycle in New Jersey. Id. at 2:31-33. The bill, if passed, would take effect immediately. Id. at 2:35.
In their introductory statement, the sponsors of the bill noted the effect the bill would have upon the amount of bail that may be enforced for a crime of the fourth degree and discussed the effects of the bill, but did not elaborate on the bill’s purpose or source. Id. at 2:40-47, 3:1-30. Local reporters have noted, however, that the bill arose out of the case of Anderson Sotomayor, of Vineland, who was charged with five DWIs in thirty-eight days, including an event wherein Sotomayor crashed into a parked police vehicle. See generally New Jersey Press Media, Tougher DUI bill moves forward, COURIER POST ONLINE (June 8, 2012, 1:32 PM), http://www.courierpostonline.com/article/20120608/NEWS01/306080016/Tougher-DUI-bill-moves-forward; Jim Cook, Jr., Criminalizing repeat drunken driving is aim of N.J. Assembly bill after Vineland man’s fifth DWI, NJ.COM (June 8, 2012, 1:32 PM), http://www.nj.com/cumberland/index.ssf/2012/06/nj_assemblymen_sponsoring_bill.html; Tougher DWI bill moves forward, THE DAILY JOURNAL (June 8, 2012, 1:32 PM), http://www.thedailyjournal.com/article/20120608/NEWS01/306080033. The bill was approved by the Assembly Law and Public Safety Committee in a 10-1 vote on Thursday, June 7, 2012. Id. The bill will now move to the full Assembly for consideration, while a sister bill awaits consideration by the New Jersey Senate Law and Public Safety committee. Id.
Monday, June 18, 2012
Blog Post: State v. Alnesha Minitee/State v. Darnell Bland (A-70/71-10)Decided June 14, 2012 __ N.J. __ (June 14, 2012)
Posted by: New Jersey Criminal Lawyer, Jeffery Hark
On June 14, 2012, the New Jersey Supreme Court delivered an opinion in State v. Minitee/State v. Brand, in which the Court redefined the standard for exigent circumstances in regards to the vehicle exception to New Jersey’s search warrant requirements. The Court reversed the ruling of the Appellate Division, holding that exigent circumstances can excuse a warrantless search even when that search takes place several hours after the vehicle in question had been recovered and towed to a safe location.
In Minitee, the defendants were convicted for robbery arising out of a string of events that occurred on January 24, 2003. Just after 10:30 p.m. on that date, in Fort Lee, NJ, police officers reported to the KOA spa on an armed robbery call. State v. Minitee, __ N.J. __, A-70-10, Slip. Op. 4 (June 14, 2012). Witnesses indicated to police that red SUV waiting at a traffic light near the spa which they stated contained the armed robbers who had just left. Id. The officer ordered the passengers out of the SUV. Id. Only one of the passengers, a man later identified as defendant Brand, exited the vehicle, dropped a purse and weapon when ordered, and then fled. Id. The officer continued to order the others out of the vehicle rather than chase Brand, but the traffic light changed to green and the SUV drove away. Id.
After the initial officer radioed in an identification of the red SUV, other officers spotted the vehicle and followed it to the end of a dead end street. Upon arriving at the vehicle, police found two women standing next to the vehicle, defendant Minitee and Liakesha Jones. Id. The women told police that they had been carjacked by two black males who had fled on foot. Id. at 5. The officer ordered them to the ground and waited for backup. When backup arrived, officers looked into the open door of the vehicle and saw, in plain view, two rolls of duct tape on the rear passenger seat and floor. Id. Knowing that the robbers had used duct tape to restrain the victims, the officers took Minitee and Jones to police headquarters and had the vehicle towed there as well by an independent towing company. Id.
Several hours passed between the towing of the vehicle and its being searched by the Bureau of Criminal Investigation at police headquarters, and the vehicle was stored in a secure sally port for the intervening period of time. Id. at 6 (The majority opinion states that the search occurred “after some period of time, the exact length of which cannot be determined from the record,” while the dissent frames the same period as “more than three hours”). Investigators searched the van without acquiring a search warrant. Id. at 7. The search of the vehicle produced classified ads from the Star Ledger for massage parlors, which had been marked with either an asterisk, a “no” or “next;” several rolls of duct tape as well as electrical tape, several hats and a mask, a cell phone, handwritten directions, a checkbook in the name of Anthony Herns, and a videotape of a massage parlor robbery from East Brunswick, NJ. Id. at 6.
During the time period between the robbery at 10:30 and the conclusion of the vehicle search at just after 2:00 a.m., multiple pursuits were in progress as police searched for the men who had fled on foot. Id. One of the fleeing men was found and arrested a few miles away in another town, while defendant Bland would not be arrested until months later. Id. at 6-7. Likewise, after his arrest, the Almustafa Baldwin, the fleeing man who had been caught, told police that he had discarded a weapon while fleeing and reneged on a promise to take police to the weapon’s location. As such, Fort Lee Police as well as the police from several neighboring towns, all searched for the weapon through the night. Id. at 7. Testimony also revealed that the Bureau of Criminal Investigation had been required to search several sites during the intervening period including the spa, the area where the gun had allegedly been dropped, another site where a jacket had been dropped by a fleeing robber, and the site where the SUV had been found. Id.
At trial, the judge determined that there were exigent circumstances. As such, the trial court ruled that the warrantless search was proper. On appeal, the Appellate Division held that under State v. Pena-Flores, 198 N.J. 6 (2009), the circumstances were not sufficient to meet the requirements for a proper warrantless search and reversed. The State appealed, arguing that State v. Martin, 87 N.J. 561 (1981) was more analogous to the facts of this case and therefore should control. Id. at 8. Likewise, the state argued that as Pena-Flores announced a new rule, it should not be applied retroactively to actions which occurred in 2003.
The Court, in its analysis, noted that both the Federal and State constitutions guarantee an individual’s right to be secure against unreasonable searches, and that this requirement is so important that warrantless searches are presumed to be invalid. Id. at 11. When such a search is challenged, the State bears the burden of establishing by a preponderance of the evidence that the search fits within the scope of one of the enumerated exceptions. Id. at 12. The Court suggested that there were only two exceptions that could possibly apply here: the search incident to arrest exception and the automobile exception. Id. The Court quickly rejected the search incident to arrest exception, as that only provides the police with the ability to search the area within the immediate grasp of the defendant within which the defendant may grab a weapon or destroy evidence. Id.
Turning to the automobile exception, the Court noted that New jersey does not follow the federal courts in its understanding of the automobile exception. Id. at 13. While federal law requires only that the vehicle be mobile and probably cause exist that the vehicle contains evidence, New Jersey also requires that there be exigent circumstances for the automobile exception to the warrant requirement to apply. Id. The Court noted that the New Jersey Constitution provides greater protections than the U.S. Constitution, and as such the existence of exigent circumstances are an essential element of the exception. Id. at 14.
The Court reiterated that under New Jersey law, the automobile exception requires an unplanned, unforeseen stop; probably cause to believe that the automobile contains contraband or evidence of criminality beyond mere suspicion; and exigent circumstances making it impracticable to obtain a warrant. Id. at 15-16. The Court held that though the factors enumerated in Pena-Flores are illustrative of the sorts of circumstances that could support a finding of exigent circumstances, that list was not exhaustive. Id. at 17. The Appellate Division’s conclusion that the Pena-Flores factors did not support a finding here, then, was not appropriate. Id.
In the instant matter, the Court held that there were other factors, which had not been relevant to Pena-Flores which confronted the Fort Lee Police that made obtaining a warrant impracticable. Specifically, the majority looked to the armed robbery, that two of the perpetrators were on the run and possibly armed, the large multiple-municipality search for the perpetrators, the attempt to find the weapon discarded by Baldwin before an innocent bystander might find it, and the conditions in which the SUV was initially discovered. Id. at 17-18. As the van was found in a dark area on a winter night with poor lighting, and as the van likely held important evidence, the Court argued that the police had no assurances that the fleeing defendants were not in the area with weapons, and as such the decision to tow the vehicle to a safe place would not preclude a finding of exigent circumstances under State v. Martin. Id. 18.
Finding Martin analogous and Pena-Flores easily distinguishable, the Court argued that Martin provided the proper framework for considering this matter. Id. In Martin, the Court had faced a similar situation wherein shortly after an armed robbery, while the perpetrators were at large, police found the vehicle of one of the robbers in a dimly lit area and towed the vehicle to a safe area before searching the vehicle. Id. at 19. The Minitee Court held that just as the towing of the vehicle in Martin was not fatal to the exigent circumstances in that case, nor does the passing of time between the towing of the vehicle and its search in the instant matter. Id. The Court instead held that the circumstances, including the multiple searches, the time of night, the missing weapon, and the multiple demands facing the Bureau of Criminal Investigation, all made the warrantless search of the SUV in this matter reasonable. Id. at 19-20. As only those searches which are objectively unreasonable “run afoul of constitutional principles,” the circumstances in this case are sufficient to meet the requirements of the automobile exception to the warrant requirement. Id. As the search itself was proper, the Court had no need to address the issues of proper standing that the State had argued in regards to defendant Bland. As the search of the SUV met the automobile exception to the warrant requirement, the Court reversed the Appellate Division’s decision and reinstated the convictions of Minitee and Bland.
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[1] The sole dissenting justice, Justice Albin, did not dispute most of the majority’s argument, but instead focused on the three plus hour gap between the recovery of the SUV and its search. As the State, in Justice Albin’s opinion, had to prove that it was impracticable to obtain a warrant and provided no evidence of such, the at least three hour gap should be fatal to a finding of exigent circumstances. Justice Albin otherwise agreed with the majority stating that “I do not doubt that a search of the SUV at the scene or even its immediate search at headquarters, provided that the vehicle was promptly towed, would have fallen within the exigent-circumstances exception to the warrant requirement.” Justice Albin’s opinion at 7.
Posted by: New Jersey Criminal Lawyer, Jeffery Hark
On June 14, 2012, the New Jersey Supreme Court delivered an opinion in State v. Minitee/State v. Brand, in which the Court redefined the standard for exigent circumstances in regards to the vehicle exception to New Jersey’s search warrant requirements. The Court reversed the ruling of the Appellate Division, holding that exigent circumstances can excuse a warrantless search even when that search takes place several hours after the vehicle in question had been recovered and towed to a safe location.
In Minitee, the defendants were convicted for robbery arising out of a string of events that occurred on January 24, 2003. Just after 10:30 p.m. on that date, in Fort Lee, NJ, police officers reported to the KOA spa on an armed robbery call. State v. Minitee, __ N.J. __, A-70-10, Slip. Op. 4 (June 14, 2012). Witnesses indicated to police that red SUV waiting at a traffic light near the spa which they stated contained the armed robbers who had just left. Id. The officer ordered the passengers out of the SUV. Id. Only one of the passengers, a man later identified as defendant Brand, exited the vehicle, dropped a purse and weapon when ordered, and then fled. Id. The officer continued to order the others out of the vehicle rather than chase Brand, but the traffic light changed to green and the SUV drove away. Id.
After the initial officer radioed in an identification of the red SUV, other officers spotted the vehicle and followed it to the end of a dead end street. Upon arriving at the vehicle, police found two women standing next to the vehicle, defendant Minitee and Liakesha Jones. Id. The women told police that they had been carjacked by two black males who had fled on foot. Id. at 5. The officer ordered them to the ground and waited for backup. When backup arrived, officers looked into the open door of the vehicle and saw, in plain view, two rolls of duct tape on the rear passenger seat and floor. Id. Knowing that the robbers had used duct tape to restrain the victims, the officers took Minitee and Jones to police headquarters and had the vehicle towed there as well by an independent towing company. Id.
Several hours passed between the towing of the vehicle and its being searched by the Bureau of Criminal Investigation at police headquarters, and the vehicle was stored in a secure sally port for the intervening period of time. Id. at 6 (The majority opinion states that the search occurred “after some period of time, the exact length of which cannot be determined from the record,” while the dissent frames the same period as “more than three hours”). Investigators searched the van without acquiring a search warrant. Id. at 7. The search of the vehicle produced classified ads from the Star Ledger for massage parlors, which had been marked with either an asterisk, a “no” or “next;” several rolls of duct tape as well as electrical tape, several hats and a mask, a cell phone, handwritten directions, a checkbook in the name of Anthony Herns, and a videotape of a massage parlor robbery from East Brunswick, NJ. Id. at 6.
During the time period between the robbery at 10:30 and the conclusion of the vehicle search at just after 2:00 a.m., multiple pursuits were in progress as police searched for the men who had fled on foot. Id. One of the fleeing men was found and arrested a few miles away in another town, while defendant Bland would not be arrested until months later. Id. at 6-7. Likewise, after his arrest, the Almustafa Baldwin, the fleeing man who had been caught, told police that he had discarded a weapon while fleeing and reneged on a promise to take police to the weapon’s location. As such, Fort Lee Police as well as the police from several neighboring towns, all searched for the weapon through the night. Id. at 7. Testimony also revealed that the Bureau of Criminal Investigation had been required to search several sites during the intervening period including the spa, the area where the gun had allegedly been dropped, another site where a jacket had been dropped by a fleeing robber, and the site where the SUV had been found. Id.
At trial, the judge determined that there were exigent circumstances. As such, the trial court ruled that the warrantless search was proper. On appeal, the Appellate Division held that under State v. Pena-Flores, 198 N.J. 6 (2009), the circumstances were not sufficient to meet the requirements for a proper warrantless search and reversed. The State appealed, arguing that State v. Martin, 87 N.J. 561 (1981) was more analogous to the facts of this case and therefore should control. Id. at 8. Likewise, the state argued that as Pena-Flores announced a new rule, it should not be applied retroactively to actions which occurred in 2003.
The Court, in its analysis, noted that both the Federal and State constitutions guarantee an individual’s right to be secure against unreasonable searches, and that this requirement is so important that warrantless searches are presumed to be invalid. Id. at 11. When such a search is challenged, the State bears the burden of establishing by a preponderance of the evidence that the search fits within the scope of one of the enumerated exceptions. Id. at 12. The Court suggested that there were only two exceptions that could possibly apply here: the search incident to arrest exception and the automobile exception. Id. The Court quickly rejected the search incident to arrest exception, as that only provides the police with the ability to search the area within the immediate grasp of the defendant within which the defendant may grab a weapon or destroy evidence. Id.
Turning to the automobile exception, the Court noted that New jersey does not follow the federal courts in its understanding of the automobile exception. Id. at 13. While federal law requires only that the vehicle be mobile and probably cause exist that the vehicle contains evidence, New Jersey also requires that there be exigent circumstances for the automobile exception to the warrant requirement to apply. Id. The Court noted that the New Jersey Constitution provides greater protections than the U.S. Constitution, and as such the existence of exigent circumstances are an essential element of the exception. Id. at 14.
The Court reiterated that under New Jersey law, the automobile exception requires an unplanned, unforeseen stop; probably cause to believe that the automobile contains contraband or evidence of criminality beyond mere suspicion; and exigent circumstances making it impracticable to obtain a warrant. Id. at 15-16. The Court held that though the factors enumerated in Pena-Flores are illustrative of the sorts of circumstances that could support a finding of exigent circumstances, that list was not exhaustive. Id. at 17. The Appellate Division’s conclusion that the Pena-Flores factors did not support a finding here, then, was not appropriate. Id.
In the instant matter, the Court held that there were other factors, which had not been relevant to Pena-Flores which confronted the Fort Lee Police that made obtaining a warrant impracticable. Specifically, the majority looked to the armed robbery, that two of the perpetrators were on the run and possibly armed, the large multiple-municipality search for the perpetrators, the attempt to find the weapon discarded by Baldwin before an innocent bystander might find it, and the conditions in which the SUV was initially discovered. Id. at 17-18. As the van was found in a dark area on a winter night with poor lighting, and as the van likely held important evidence, the Court argued that the police had no assurances that the fleeing defendants were not in the area with weapons, and as such the decision to tow the vehicle to a safe place would not preclude a finding of exigent circumstances under State v. Martin. Id. 18.
Finding Martin analogous and Pena-Flores easily distinguishable, the Court argued that Martin provided the proper framework for considering this matter. Id. In Martin, the Court had faced a similar situation wherein shortly after an armed robbery, while the perpetrators were at large, police found the vehicle of one of the robbers in a dimly lit area and towed the vehicle to a safe area before searching the vehicle. Id. at 19. The Minitee Court held that just as the towing of the vehicle in Martin was not fatal to the exigent circumstances in that case, nor does the passing of time between the towing of the vehicle and its search in the instant matter. Id. The Court instead held that the circumstances, including the multiple searches, the time of night, the missing weapon, and the multiple demands facing the Bureau of Criminal Investigation, all made the warrantless search of the SUV in this matter reasonable. Id. at 19-20. As only those searches which are objectively unreasonable “run afoul of constitutional principles,” the circumstances in this case are sufficient to meet the requirements of the automobile exception to the warrant requirement. Id. As the search itself was proper, the Court had no need to address the issues of proper standing that the State had argued in regards to defendant Bland. As the search of the SUV met the automobile exception to the warrant requirement, the Court reversed the Appellate Division’s decision and reinstated the convictions of Minitee and Bland.
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[1] The sole dissenting justice, Justice Albin, did not dispute most of the majority’s argument, but instead focused on the three plus hour gap between the recovery of the SUV and its search. As the State, in Justice Albin’s opinion, had to prove that it was impracticable to obtain a warrant and provided no evidence of such, the at least three hour gap should be fatal to a finding of exigent circumstances. Justice Albin otherwise agreed with the majority stating that “I do not doubt that a search of the SUV at the scene or even its immediate search at headquarters, provided that the vehicle was promptly towed, would have fallen within the exigent-circumstances exception to the warrant requirement.” Justice Albin’s opinion at 7.
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