New Jersey Child Support

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

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

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

State v. Hand

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

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

State of NJ v. Mai

Argued Oct. 13, 2009

Decided May 6, 2010.

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

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

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

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

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

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

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

State of NJ v. Davila

Argued Feb. 2, 2010.

Decided July 14, 2010.

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

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

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

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

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

(4) remand was required.

Judgment of Appellate Division reversed; matter remanded.

Another Opinion

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

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

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

Appellate Opinion

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

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

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

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

No Legal Requirement for Medicare on Settlement Checks

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

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

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

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

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

State v. Mann

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

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

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

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

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

State v. Moran

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

1) the nature and circumstances of the defendant’s conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage;

2) the defendant’s driving record, including the defendant’s age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions;

3) whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant’s driving record indicates that there is a substantial risk that he or she will commit another violation;

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

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

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

7) the need for personal deterrence; and

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

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

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

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

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

State v. Marquez

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

State v. Privott - lifting clothing during a frisk

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

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

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

Medicare Secondary Payer Statute

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

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

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

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

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

Additional New Jersey Criminal Law information and Articles

Quereshi v. Cintas Corporation

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

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

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

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

Searching Without A Warrant Leads to Suppressed Evidence

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

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

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

Read other New Jersey Criminal Law Articles

Amended NewJersey Seatbelt Law

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

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

Read other New Jersey criminal law articles

State v. Mai - Case Summary

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

Taverns Beware

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

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

Criminal law cases and Police witnesses

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

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

Criminal Pleas & Deportation

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