New Jersey Lawyers voted Best in South Jersey, John F. Renner

NEW JERSEY WORKERS’ COMPENSATION LAWYERS REVIEW RECENT APPELLATE DIVISION CASE EXPANDING THE “COMING AND GOING” RULE TO OFF-SITE EMPLOYEES TRAVELLING ON COFFEE BREAK.

Under traditional rules of Workers’ Compensation in the State of New Jersey, an employee who is “coming and going” from the place of work is not entitled to benefits under the statute. A minor deviation, however , from employment does not render an employee ineligible. In a recent case, the Appellate Division of the Superior Court of New Jersey held that accidents occurring during coffee breaks for off-site employees are minor deviations from employment and therefore the employee is entitled to recover full benefits. The employee in the case was severely injured while on a five male trip to a deli for coffee. The Court determined that was properly taking a coffee break as the employee waited to consult with an expert to finish with other business as directed by the employer. As such, an employee is in the course of employment when performing his or her prescribed duties at the time of the injury.

NEW JERSEY LAWYERS REVIEW RECENT STATUTORY AMENDMENTS TO THE STATE OF NJ DRUNK DRIVING LAWS.

Acting-governor Corzine signed into law recently the provisions of “Ricci’s Law”, a series of amendments to the state’s drunk driving laws that require a first offender and people who have been convicted of a refusal offense meet the requirements of the Ignition Interlock Device statute (N.J.S.A. 39:4-50.16). That statute permits a judge to order either the use of an interlock device or the suspension of the defendant’s registration privileges. In addition, use of the device on vehicles principally driven by the offender will be mandatory for violations for all refusal statute (N.J.S.A. 39:4-50.4a) and for those defendants with a blood alcohol level of 0.15% or greater.

The glorious uncertainty of the law was a thing well known and complained of, by all ignorant people, but all learned gentlemen considered it as its greatest excellency.

NEW JERSEY LAWYERS REVIEW DECISION PROVIDING GUIDANCE ON THE PROBABLE CAUSE DETERMINATIONS FOR AN ARREST AND PROBABLE CAUSE FOR THE ISSUANCE OF A SEARCH WARRANT.

The New Jersey Supreme Court recently decided an important case setting forth the evidentiary standards relevant to a probable cause determination on the issuance of a search warrant and the justification for an arrest. While both require a finding of probable cause, the conclusions that justify an arrest and the issuance of a search warrant are not identical. The probable cause requirement for a search warrant and that for an arrest protect different liberty interests. That is, the search warrant requirement protects reasonable and legitimate expectations of privacy against unreasonable intrusion by law enforcement. The probable cause requirement for an arrest warrant, on the other hand, protects against the loss of personal liberty associated with a belief that a person has committed a crime. As many courts have noted, the factual predicates in support of either a search warrant or an arrest may be necessarily the same.

NEW JERSEY CRIMINAL DEFENSE LAWYERS REVIEW RECENT NJ SUPREME COURT CASE OVERTURNING A MURDER CONVICTION BASED UPON BEHAVIOR OF TRIAL COURT JUDGE.

The New Jersey Supreme Court is clear: Judges must remain impartial and not give a jury any indication that he or she is partial to one side or the other during the course of a trial.

Based upon a Judges conduct demonstrating bias toward the State of New Jersey in a criminal case, the NJ Supreme Court reversed the conviction. In that case, the active role the trial judge took in supporting the testimony of witnesses for the State and while at the same time expressing disbelief as to the testimony advanced by the defendant and his witnesses. The Supreme Court noted that a defendant on trial in a New Jersey courtroom is entitled to be confronted by just one, single adversary in the person of the prosecutor and should not be subjected to the additional burden of a trial judge who disbelieves his evidence and conveys that impression to the jury.

Law offers a guiding thread to us...one of purpose - and a purpose infinitely worthwhile, for in the long view it is more important that human beings should learn to get on with each other than that they should be more comfortable materially and safer physically.

Lecture, “Law as It Looks to a Historian”, Girton College, February 18, 1956

NEW JERSEY LAWYERS REVIEW RECENT NEW JERSEY SUPERIOR COURT, APPELLATE DIVISION, CASE REGARDING WITHDRAW OF GUILTY PLEA IN DWI CASE AND THE RULES TO CONSIDER SUCH AN APPLICATION.

A case of interest to New Jersey lawyers handling Municipal Court cases in NJ involves a ruling on a motion by a defendant to withdraw a guilty plea following imposition of sentence in a DWI case. The Court held that any decision on the motion must be predicated upon correcting a manifest injustice and should generally conform to the 4 balancing factors established by the New Jersey Supreme Court in an earlier case. Those factors include:

4) whether withdrawal would result in unfair prejudice to the state or unfair advantage to
the accused.

In the case before the Court, the defendant moved to vacate his post-sentencing plea on the basis that he had been deprived of potentially exculpatory evidence in the form of a police car videotape which would have proved he was not operating his vehicle at the time of his motor vehicle stop. The police had destroyed the videotape as a matter of routine after the defendant’s initial plea of guilty. In analyzing the above factors, the Court ruled that the lack of bad faith by the police in destroying the video, coupled with the speculative nature of the defendant’s claim of what was shown the video, did not satisfy the test for withdrawal of a guilty plea.

In giving freedom to the slave we assure freedom to the free – honorable alike in what we give and what we preserve.

NEW JERSEY LAWYERS REVIEW DWI REVERSAL AND DISMISSAL OF CHARGES BY THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, UNDER DUE PROCESS VIOLATION REQUIRING THAT DEFENDANT RECEIVE A SPEEDY TRIAL.

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION DECISION REGARDING THE SCOPE OF THE NJ PREVENTION OF DOMESTIC VIOLENCE ACT

The Superior Court of New Jersey, Appellate Division, recently held that the provisions of the NJ Prevention of Domestic Violence Act includes a wide definition of the term “dating relationship” to include relationships involving the payment of money or other consideration from one party to the other. The Court began with the statutory definition of a “victim of domestic violence” as, in part, “any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.” The statute does not define “dating relationship.” The defendant in the matter raised the issue that his relationship with the plaintiff involved the payment of money for her professional escort services and therefore was not a “dating relationship” under the statute. The Court rejected the argument holding in part that the “fact that a person receives monetary benefit from engaging in a relationship does not automatically disqualify that person from the Act’s benefits.”

Justice, I think, is the tolerable accommodation of the conflicting interests in society, and I don’t believe, there is any royal road to attain such accommodation concretely.

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION DECISION ALLOWING ANY COMPETENT WITNESS TO ESTABLISH A TWENTY MINUTE OBSERVATION PRIOR TO THE ADMINISTRATION OF AN ALCOTEST TO DETERMINE BLOOD ALCOHOL LEVELS.

Prior to the admission of Alcotest results into evidence against a defendant accused of driving while intoxicated, the State of New Jersey must demonstrate that proper procedures for the administration of the test were followed by law enforcement. One of the requirements is that the State demonstrate the defendant did not ingest, regurgitate or place in his or her mouth that may impact the reliability of the test results for a period of at least twenty minutes prior to the administration of the test. A recent decision of the Appellate Division of the Superior Court of New Jersey held that the identity of the observer in that twenty minute timeframe need not be the Alcotest operator. On the contrary, the decision held that any competent witness can so testify and establish the requisite foundation for the state regarding this aspect of the operation of the testing device.

Oliver Wendell Holmes, Rock Island C.R.R. v. United States, 254 U.S. 141, 143 (1920).

NEW JERSEY CRIMINAL DEFENSE LAWYERS REVIEW ATTORNEY GENERAL’S POLICY ON USE OF STUN GUNS IN POLICE ALTERCATIONS WITH EMOTIONALLY DISTURBED INDIVIDUALS.

Under limited circumstances, the use of an electronic stun gun will be permissible upon interaction of law enforcement with emotionally disturbed persons in the State of New Jersey. According to the policy, the use of the stun gun is limited to those officers who have successfully completed a Police Training Commission course and authorization to carry from his or her department chief executive.

Assuming the officer is qualified, the use of the stun gun is permissible according to the policy against emotionally disturbed individuals who are defined as those who appear to be mentally ill or temporarily deranged and are conducting themselves in a manner that the officer reasonably believes is likely to result in serious bodily injury.

The courts are an easy scapegoat because at a time when everything has to be boiled down to easy slogans, we speak in subtleties.

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION CASE OF INTEREST IN THE MUNICIPAL COURTS OF NJ REGARDING REFUSAL AND DRUNK DRIVING CHARGES ARISING FROM THE SAME INCIDENT.

New Jersey lawyers practicing before the Municipal Courts of the State of NJ are aware of the general prohibition against the merger of driving under the influence charge and a refusal charge and the general requirement that the Court impose separate sentences for each. In order to enforce this policy, plea bargaining prohibitions exist on DWI and refusal cases. In the case before Court, the defense lawyer negotiated a resolution of his case with a merger of the DWI and the refusal convictions which was granted by the Municipal Court Judge. The lower courts who heard appeals in the matter sought to impose a greater length of license suspension on the DWI conviction but that approach was later rejected by the Appellate Division in favor of enforcement of the general prohibition against merger and upholding the plea bargaining restrictions.

NEW JERSEY LAWYERS REVIEW RECENT NJ SUPREME COURT DECISION ALLOWING THIRD TIME OFFENDERS OF THE NO POINT UNSAFE DRIVING VIOLATION UNDER NJSA 39:4-97.2 TO AVOID POINTS IF FIVE YEARS HAS PASSED SINCE THE SECOND OFFENSE.

Under NJSA 39:4-97.2(e), the legislature of the State of New Jersey provided an exemption provision for assessing motor vehicle penalties for an unsafe driving offense that occurs more than five years after the “prior offense”. In a plain language interpretation of the statute, the NJ Supreme Court recently held that this provision allows for a third or subsequent offender of the unsafe driving statute to avoid motor vehicle points assessed against his or her New Jersey driver’s license provided that five years have passed since the “prior offense” (ie. the earlier conviction for unsafe driving under the same statutory provision). The Court’s interpretation reverses language in other lower appellate courts that ruled differently on the same issue.

NEW JERSEY LAWYERS CONSIDER DWI ALCOTEST CASE RECENTLY APPROVED FOR PUBLICATION BY THE COMMITTEE ON OPINIONS WHICH DEFINES PROCEDURAL REQUIREMENTS FOR THE INTRODUCTION OF BLOOD ALCOHOL READINGS INTO EVIDENCE.

The Committee on Opinions recently decided to put the their stamp of approval on the publication of an important case involving what is commonly referred to as the twenty minute observation rule as a strict requirement for the admissibility of alcotest readings in a prosecution alleging driving while intoxicated. While the case may be heard by the Appellate Division and the ultimate decision uncertain, the case nevertheless reviews in detail the requirement that law enforcement observe an alleged drunk driver arrested for suspicion of driving while intoxicated for a period of twenty minutes that is uninterrupted prior to the administration of breath samples for an alotest reading. If there is any interruption in the observation (no matter how long that interruption may last), the twenty minute period must start at the beginning in order to satisfy this requirement according to this Law Division opinion.

Laws are a dead letter without courts to expound and define their true meaning and operation.

NEW JERSEY LAWYERS REVIEW DISSENTING OPINION OF UNITED STATES SUPREME COURT CHIEF JUSTICE JOHN ROBERTS OF THE COURT’S REJECTION OF AN APPEAL OF A VIRGINIA DRUNK DRIVING CASE.

The United States Supreme Court has discretion to accept only those cases that, after a review process, involve important questions of law as voted upon by a sufficient number of justices. In a rare move, Chief Justice John Roberts published a dissent of the Court’s rejection of an appeal involving a Virginia drunk driving case. The Court received a request to accept the appeal from a decision of the Virginia Supreme Court which held that when police receive an anonymous tip that a drunk driving is currently operating a motor vehicle on the highways of that state, the police officers may not stop the vehicle until the police officers personally observe some unsafe conduct on the part of the driver. In his dissent, Roberts lamented what he characterized as “one free swerve” for the suspected drunk driver before law enforcement can lawfully stop the vehicle.

In New Jersey, the NJ Supreme Court has previously considered this issue and held that an uncorroborated tip to the police about the actions of an allegedly intoxicated driver can form sufficient reasonable suspicion for the police to lawfully stop the vehicle.

Irving Kaufman, American jurist, “Keeping Politics Out of the Court,” New York Times, December 9, 1984

NEW JERSEY LAWYERS PONDER RECENT LEGISLATION SIGNED INTO LAW BY GOVERNOR CORZINE CREATING NEW MOTOR VEHICLE VIOLATION IF DRIVING ON THE ROADS OF NEW JERSEY WITH ACCUMULATED SNOW OR ICE ON THE VEHICLE.

In amending N.J.S.A. 39:4-77.1, Governor Corzine finalized the enactment of new legislation which creates a new motor vehicle offense in the State of New Jersey: operation of a motor vehicle on the roads of the state with accumulated ice or snow on the vehicle. The new law encompasses all areas of the vehicle including the hood, trunk, windows and windshield. Law enforcement in New Jersey are now authorized under this new law to stop motor vehicles with accumulated ice or snow that are being operated on a street or highway in the State of New Jersey if the law enforcement officer believes that the vehicle poses a danger to persons or property.

“… nor shall any State deprive any person of life, liberty, or property without due process of law.”

NEW JERSEY LAWYERS CONSIDER RECENT APPELLATE DIVISION CASE ALLOWING FOR A SUBSEQUENT INTERROGATION OF A CRIMINAL DEFENDANT AFTER BAIL AND RELEASE FROM PRE-TRIAL DETENTION.

It is standard constitutional law both in under the United States Constitution and the State of New Jersey Constitution that interrogation of a criminal suspect must end by law enforcement upon the person invoking his or her right to an attorney. In a recent decision of the Superior Court of New Jersey, Appellate Division, the court held that pursuant to both the federal and state constitutions, a person who has asserted the right to counsel during a police custodial interrogation and is subsequently released may be interrogated again if the break in custody gave the person a reasonable opportunity to consult an attorney.

First he [Radamanthus, the judge of Hell] punished before he heard, and when he had heard his denial, he compelled the party accused by torture to confess.

Virgil, Aeneid, c. 19 B.C

October 12, 2009

RECENT APPELLATE DIVISION DECISION IMPACTS NEW JERSEY LAWYERS PRACTICING IN NJ MUNICIPAL COURTS REGARDING THE SUSPENSION OF DRIVING PRIVILEGES.

New Jersey lawyers review a recent case decided by the Superior Court of New Jersey, Appellate Division, holding that the Motor Vehicle Commission’s two- year delay in suspending the driver’s New Jersey driving privileges following his conviction and license suspension in Florida for driving under the influence of alcohol did not constitute double punishment, since an offender has no legal right to concurrent suspension periods. Nor did the delay constitute a factual dispute that would have entitled the driver to a Motor Vehicle Commission hearing, since the reason for the delay in the issuance and transmittal of notice by Florida officials was not material to the mandatory action taken by the Motor Vehicle Commission upon receipt of that notice.

Legal Quote of the Week:

We see what you are driving at, but you have not said it, and therefore we shall go on as before.

Oliver Wendell Holmes, Johnson v. United States, 163 Fed. 30, 31 (1908)

October 5, 2009

NEW JERSEY LAWYERS REVIEW RECENT PASSAGE OF STATUTORY AMENDMENT PROVIDING FOR STATUTORY IMMUNITY UNDER LIMITED CIRCUMSTANCES FOR CONSUMPTION OF ALCOHOLIC BEVERAGES UNDER THE LEGAL AGE

Governor Corzine recently signed an amendment to the statutory prohibition against the consumption of alcoholic beverages while under the legal age to do so.   It is a disorderly person offense for the consumption or possession of an alcoholic beverage by a person under the age of 21. Under the amendment, statutory immunity applies when: 1) there is a report to 9-1-1 of an underage person in need of medical assistance resulting from the consumption of alcohol; 2) the person calling 9-1-1 provided his or her name to the 9-1-1 operator; 3) the underage person was the first to report the need for medical assistance to 9-1-1; and 4) the caller remains on the scene with the underage person in need of medical assistance and cooperated with medical assistance and law enforcement.   The underage person who receives medical assistance also shall be immune from prosecution. The law has the worthwhile intent of encouraging underage persons from seeking medical assistance without fear of prosecution due to alcoholic beverages.

Legal Quote of the Week:

The life of the law has not been logic; it has been experience.

Oliver Wendell Holmes, The Common Law, 1881.

September 21, 2009

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION CASE INTERPRETING THE MOTOR VEHICHLE STATUTE PROHIBITING “U-TURNS” ON BY MOTORISTS TRAVELLING IN THE STATE OF NEW JERSEY.

In interpreting the statutory provision prohibiting what is commonly referred to as a “U-Turn” in the State of New Jersey, the Appellate Division of the Superior Court of New Jersey recently held that the statutory provision does not require proof submitted by the Prosecutor that the motorist literally made a 180 degree turn. The evidence was sufficient beyond a reasonable doubt on the municipal court level that the motorist had in fact turned his vehicle around as to proceed in the opposite direction on a highway. On the highway, there was a sign conspicuously posted which stated “no U-turn” was permissible. The Defendant motorist in the case was driving down a highway when he made a left hand turn into a private driveway. The motorist thereafter backed out and drove off in the opposite direction which conduct, according to the court, constituted a violation of the statutory provision.

Legal Quote of the Week:

“…if we see cruelty or wrong that we have the power to stop, and do nothing, we make ourselves sharers in the guilt.”

Anna Sewell, British writer, Black Beauty, 1877

September 14, 2009

NEW JERSEY LAWYERS REVIEW AMENDMENTS TO CRIMINAL PLEA FORMS USED FOR CRIMINAL CASES IN THE STATE OF NEW JERSEY REFLECTING DEPORTATION CONSEQUENCES FOR ALIENS CONVICTED OF CERTAIN FELONY OFFENSES.

New Jersey standard plea forms in criminal cases have been revised to reflect the ruling in a recent Supreme Court of New Jersey opinion vacating the guilty plea of an alien who was not told he would be deported if he pleaded guilty. In light of that decision, the standard plea forms now reflect that a conviction for an “aggravated felony” will in fact result in deportation from the United States under federal law.   Previously, the standard forms reflect that deportation “may” occur by “virtue of your plea of guilty.”

Legal Quote of the Week:

The strength of our persuasions is no evidence at all of their own rectitude: crooked things may be as stiff and inflexible as straight: and men may be as positive and peremptory in error as in truth.

John Locke, An Essay Concerning Human Understanding, 1690

September 7, 2009

NEW JERSEY LAWYERS REVIEW RECENT STATUTORY AMENDMENTS EXPANDING TICKET WRITING AUTHORITY OF LOCAL MUNICIPAL AND COUNTY LAW ENFORMENT TO THE OPERATION OF PERSONAL WATERCRAFT IN NEW JERSEY WATERWAYS.

Governor Corzine recently signed into law amendments to NJSA 12:7-63 and NJSA 12:7-69 dealing with personal watercraft allowing municipal and county police officers to enforce all of the statutory provisions related to the operation of personal watercraft in New Jersey waterways.   The amendments provide for increased jurisdiction for local law enforcement over the operation of “Sea Doo” and other types of personal watercraft and covers a wider range of maritime activities including speeding.   The amendment continues on to provide, however, that the Division of State Police shall maintain primary jurisdiction over investigation of accidents and crimes involving the operation of personal watercraft. Another amendment places new restrictions upon the operation of personal watercraft in NJ between the boundaries of Point Pleasant Canal in Ocean County and Cape May Canal in Cape May County.

Legal Quote of the Week:

Those who consent to the act and those who do it shall be equally punished.

Sir Edward Coke, 1552-1634
W. Gurney Benham, Putnam’s Complete Book of Quotations

August 31, 2009

NEW JERSEY LAWYERS APPLY RECENT APPELLATE DIVISION CASE HOLDING THAT A PRIVATE PARKING GARAGE IS A SUFFICIENT QUASI-PUBLIC AREA OF THE STATE OF NEW JERSEY TO REQUIRE DRIVER’S TO SUBMIT TO BREATH TESTING.

The relevant New Jersey statute on the requirement of a driver to submit to breath testing in the State of NJ, Title 39:40-50.2, requires that a person who operates a motor vehicle on a public road, street, highway or quasi-public area of New Jersey shall be deemed to have given his or her consent to provide breath samples to law enforcement if there is probable cause to believe that he or she has operated a motor vehicle under the influence of alcohol. What is a “quasi-public” area has not been given a firm definition.   The Appellate Division, however, has provided some guidance in defining that term in a recent case. There, the court held that a private parking area with a capacity for 300 spaces is a quasi-public area which then triggers the requirement that the driver who is suspected of driving while intoxicated submit to a breath testing to determine blood-alcohol content.

Legal Quote of the Week:

He who seeks equity must do equity.

Joseph Story, Equity Jurisprudence, 1896.

August 17, 2009

NEW JERSEY LAWYERS PONDER RECENT APPELLATE DIVISION DECISION ESTABLISHING NEW RULES FOR LAW ENFORCEMENT TO FOLLOW WHEN OBTAINING A WAIVER OF MIRANDA RIGHTS FROM A JUVENILE SUSPECT.

New Jersey criminal defense lawyers are familiar with the well-established case law in NJ providing for additional protections to juvenile suspects facing interrogation by law enforcement. In a recent case, the Appellate Division suppressed the confession of a 14 years old female who was subject to investigation by law enforcement for a sexual assault perpetrated upon a 4 year old nephew. The female juvenile suspect was accompanied by an adult advisor, her mother who was also the grandmother of the victim, who advised the juvenile to waive her Miranda rights, her right to counsel and confess to the offense.

The Appellate Division found the clear conflict of interest of the adult advisor as decisive in ordering the suppression of the statement.   As future guidance, the Court held that “where the adult advisor is known to have a close family relationship to both the victim and the alleged perpetrator, the prudent approach would be to require the presence of an attorney capable of advising the juvenile with respect to her rights and her potential culpability.”

Legal Quote of the Week:

Let justice be done though the heavens fall.

Sir James Mansfield, English jurist, Chief Justice, Rex v. Wilkes, (1769)

August 10, 2009

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION OPINION PROVIDING GUIDELINES FOR THE SUSPENSION OF DRIVING PRIVILEGES IN THE STATE OF NEW JERSEY FOR WILLFUL VIOLATIONS OF NJ TRAFFIC LAWS.

Any persons found guilty beyond a reasonable doubt in a municipal court of the State of New Jersey of a willful violation of the traffic laws of the state is subject to a suspension of driving privileges. A recent decision of the Appellate Division ruled that the statute providing for discretion of the municipal court judge to suspend driving privileges for a willful violation is constitutionally valid. The court further provided factors that a judge must consider prior to making a decision on whether to suspend the driver’s license.

Some of the factors enumerated by the court include: the nature and circumstances of the offense and whether the offense was egregious, any harm inflicted upon others by the commission of the offense, the defendant’s driving record, the length of the time the defendant has maintained a valid driver’s license and the seriousness, frequency and timing of prior infractions and the need for deterrence among other factors discussed by the court in the comprehensive opinion.

Legal Quote of the Week:

There is in many, if not in all men, a constant inward struggle between the principles of good and evil; and because a man has grossly fallen, and at time of this fall added to the guilt of hypocrisy to another sort of immorality, it is not necessary, therefore, to believe that his whole life has been false, or that all the good which he ever professed was insincere or unreal.

Roundell Palmer, 1^st earl of Selborne, British jurist; Lord Chancellor,
Symington v. Symington (1875)
L.R. 2 Sc. & D. 428

August 3, 2009

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION DECISION FINDING SUFFICIENT GROUNDS FOR LAW ENFORCEMENT TO JUSTIFY A MOTOR VEHICLE STOP DUE TO REASONABLE SUSPICION THAT A LAW OF THE STATE OF NEW JERSEY HAS BEEN VIOLATED.

The Motor Vehicle Code of the State of New Jersey provides under 39:3-74 that “No person shall drive any vehicle so constructed, equipped or loaded as to unduly interfere with the driver’s vision to the front and to the sides.”   In the case before the Court, law enforcement stopped a driver who had a pair of small boxing gloves hanging from the rear view mirror. The Court ruled that the small gloves provided law enforcement with sufficient grounds for reasonable suspicion to justify a motor vehicle stop of the defendant’s car. The stop of the vehicle ultimately led to the seizure of and prosecution for possession of a controlled dangerous substance.   The Court further noted that the existence of the small gloves hanging from the rear-view may or may not have been sufficient to support a conviction of 39:3-74 (requiring proof beyond a reasonable doubt) but nevertheless did provide sufficient reasonable suspicion to justify the motor vehicle stop.

Legal Quote of the Week:

The law of things is a law of universal reason, but most men live as if they had a wisdom of their own.

Heraclitus, Cosmic Fragments, c.500 B.C.

July 27, 2009

NEW JERSEY LAWYERS CONSIDER RECENT NJ SUPREME COURT CASE RULING AGAINST THE VICARIOUS ASSERTION OF THE RIGHT AGAINST SELF-INCRIMINATION IN A CRIMINAL CASE IN THE STATE OF NEW JERSEY.

In a recent important decision to New Jersey criminal defense lawyers, the New Jersey Supreme Court has ruled that the right against self-incrimination is a personal right that must be asserted by the defendant who has been personally aggrieved by a constitutional violation of that right and not by a co-defendant who is seeking to assert that right vicariously as a defense.   In the case before the Court, a passenger in a vehicle searched for drugs was held to have no standing to argue that the driver’s right against self-incrimination was violated and therefore the warrantless search of the vehicle was illegal.   The Court ruled that the passenger, as a defendant in the case, did have standing to challenge the reasonableness of the search of the vehicle but not whether the co-defendant’s admissions to law enforcement at the scene were coerced or cajoled in violation of the constitutional right against self-incrimination.

Legal Quote of the Week:

My conscience hath a thousand several tongues.
And every tongue brings in a several tale,
And every tale condemns me for a villain.

Shakespeare
Richard III, V, 3, 1592-1593

July 20, 2009

NEW JERSEY LAWYERS REVIEW RECENT NJ SUPREME COURT CASE STRIKING DOWN USE OF A CERTAIN JURY CHARGE AGAINST A CRIMINAL DEFENDANT IN THE STATE OF NEW JERSEY.

For many years, the New Jersey Supreme Court set forth a procedure which if followed allowed the fact finder in a trial to draw a negative inference from the fact that a party to the case could have produced a critical witness and does not do so.   The negative inference permitted allowed the fact finder (a judge or jury) to conclude that the fact that the witness was not called by the party means that the witness would not have testified in favor of that party.

In a recent case by the New Jersey Supreme Court, that procedure and the possible resulting negative inference can no longer be used by the prosecution against a defendant in a criminal case in the State of New Jersey.   The Court reasoned that the constitutional vanguards that a defendant has the presumption of innocence and that the State of NJ has the burden of proof beyond a reasonable doubt are both undermined the defendant’s constitutional rights.

Legal Quote of the Week:

The Constitution of the United States was made not merely for the generation that then existed, but for posterity- unlimited, undefined, endless, perpetual posterity.

Henry Clay, Speech, U.S. Senate, 1850

July 13, 2009

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION OPINION HOLDING THAT THE STANDARD STATEMENT READ TO ALL DRIVERS SUSPECTED OF DRUNK DRIVING REGARDING REFUSAL TO TAKE A BREATH-TEST DOES NOT HAVE TO BE TRANSLATED INTO THE LANGUAGE OF THE DRIVER.

In a recent opinion of the New Jersey Superior Court , Appellate Division, the court ruled that NJ law drivers suspected of drunk driving can be informed of their obligation to submit to breath-testing solely in the English language. In the case, the Defendant was arrested for drunk driving but spoke no English. The arresting officer could communicate with the Defendant in Spanish. At the police station, the arresting officer read the required implied consent warnings in English only. The Defendant testified at trial that he did not understand the warning that was read to him by the arresting officer. In spite of that, the Defendant was convicted of refusal to submit to a breath-test and the conviction affirmed by the Appellate Division on the ground that the understanding of the Defendant of the warning is not a required element of the offense of refusal to submit to a breath-test and that the burden placed on law enforcement in New Jersey would be unreasonable if required to translate the warning into a host of foreign languages.

Legal Quote of the Week:

Every age is modern to those who are living in it.

Benjamin N. Cardozo, 1870-1938

July 6, 2009

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION CASE UPHOLDING SEIZURE OF EVIDENCE DURING EMERGENCY ENTRY INTO A RESIDENCE AND SUBSEQUENT RETURN TO SAME RESIDENCE AND SEIZURE.

The Appellate Division of the Superior Court of New Jersey recently ruled that police officers who seize evidence during the course of an emergency entry into a residence do not violate the constitutional prohibition against unreasonable search and seizure under the state constitution even though the evidence is seized without a search warrant. The evidence must be in plain view and discovered inadvertently.   The Appellate Division went on to hold that the police may, under certain circumstances, re-enter the property shortly after discovering the evidence and seize it without a search warrant if the second entry is viewed by a judge as nothing more than a continuation of the initial lawful entry into the residence by law enforcement.

Legal Quote of the Week:

The best way to keep good acts in memory is to refresh them with new.

Francis Bacon, Apophthagmes, 1625

NEW JERSEY LAWYERS REVIEW RECENT UNITED STATES SUPREME COURT OPINION HOLDING THAT LABORATORY REPORTS RELATING TO THE TESTING OF CONTROLLED DANGEROUS SUBSTANCES AT A POLICE LABORATORY ARE TESTIMONIAL EVIDENCE WITHIN THE MEANING OF THE SIXTH AMENDMENT.

The United States Supreme Court has ruled that the Sixth Amendment right of confrontation extends to police laboratory reports pertaining to the testing of controlled dangerous substances.   In so ruling, the Court characterized the reports as testimonial within the meaning of the Sixth Amendment and the Defendant has a right to confront the affiant of the report in open court under the rigors of cross-examination.   The 5-4 decision held that the extension of the Sixth Amendment to such reports is “straightforward” given other recent cases by the Court upholding a Defendant’s exercise of his or her Sixth Amendment privilege regarding other forms of evidence sought to be introduced by the prosecution.

The case affirms existing case law in New Jersey which criminal defense lawyers know affords Defendants in NJ state courts the ability to require the State to produce witnesses regarding lab results in DWI blood tests and lab technician who drew blood sample from an allegedly intoxicated person.

Legal Quote of the Week:

To have doubted one’s own first principles is the mark of a civilized man.

Oliver Wendell Holmes, “Ideals and Doubts,” 10 Illinois Law Review 3 (1915)

June 29, 2009

STATE OF NEW JERSEY LEGISLATURE MOVES CLOSER TO MAKING NJ THE FOURTEENTH STATE IN THE UNION TO ALLOW THE LEGAL USE OF MARIJUANA FOR MEDICAL PURPOSES.

If a resident of New Jersey is suffering from a chronic or terminal illness, the Assembly Health, Human Services and Senior Citizens Committee recently recommended passage of a bill that would allow a physician treating the person for the illness to prescribe marijuana to alleviate some of the symptoms of the health condition.   In addition, patients with such prescriptions would have to obtain the marijuana from licensed and regulated nonprofit centers instead of growing it themselves which was included in a version earlier passed by the New Jersey Senate.

According to Senator Nicholas Scutari, D-Union: “Over the years, New Jersey has crafted some of the toughest anti-drug laws in the nation, and that’s appropriate when trying to keep kids off drugs. However, we’re not talking about hardened criminals with this legislation, but the sick and dying state residents who have nowhere else to turn, and have exhausted all other treatment possibilities.”

Legal Quote of the Week:

Law is mighty, necessity is mightier.

Goethe, 1749-1832

June 22, 209

NEW JERSEY LAWYERS REVIEW NJ SUPREME COURT PROCEDURES INVOLVING DISQUALIFICATION OF CERTAIN JUDGES TO HEAR DRUNK DRIVING CASES OR ACTS OF DOMESTIC VIOLENCE ALLEGATIONS.

The New Jersey Supreme Court has established rules concerning the authority of certain judges to hear cases alleging drunk driving or allegations of domestic violence when the judge has been charged with the same conduct.   The restrictions are as follows:

Drunk Driving – A judge who has been charged with drunk driving must immediately stop hearing all such cases. The prohibition on hearing DWI cases will continue indefinitely and will expire either one year following the imposition of sentence following a plea or finding of guilty or after all aspects of sentence have been completed, whichever is longer. Any pending, reserved decisions related to a DWI case before the offending judge will be decided by another judge on the papers or re-litigated before another judge at the request of the defendant.

Domestic Violence – A judge who is a party to a domestic violence matter may not hear any domestic violence cases while his DV matter is pending and for one year following the trial court’s disposition of the case. If a final restraining order is entered against the offending judge, he may not hear any domestic violence cases while the order is in effect or for one year from the date of the order, whichever is longer.

Legal Quote of the Week:

Judges, like Caesar’s wife, should be above suspicion.

Charles Bowen, English jurist

June 1, 2009

NEW JERSEY LAWYERS REVIEW RECENT COURT OF APPEALS DECISION HOLDING THAT A STATE OF NJ PROSECUTOR CAN CONDTION ADMITTANCE OF A DEFENDANT INTO THE PRE-TRIAL INTERVENTION PROGRAM ON A GUILTY TO PLEA TO TRAFFIC TICKETS.

The State of New Jersey offers a Pre-Trial Intervention Program to certain defendants meeting the requirements of the program and with the consent of the county prosecutor’s office. In a recent case before the Superior Court of New Jersey, Appellate Division, the Sussex County Prosecutor consented a defendant’s admission into the Pre-Trial Intervention Program conditioned upon, among other things, that the Defendant plead guilty to several motor vehicle offenses that were factually related to the criminal charges.   One of the traffic offenses included leaving the scene of an accident resulting in injuries to another person which carries a mandatory 180 day term of imprisonment.

The Court held that prosecutors are granted wide latitude in deciding whom to admit into the program and whom to prosecute through a traditional trial. That discretion is given wide latitude by the courts in the State of New Jersey. In this case, the Court found that the prosecutor did have adequate grounds to deny the defendant an unconditional admission into the program and that requiring a guilty plea on the traffic offenses was not an abuse of discretion.

Legal Quote of the Week:

He hath in great perfection the three qualifications of a lawyer: boldness, boldness, boldness.

Anonymous, referring to an English judge, Hatton Correspondence, c. late 16^th century.

May 18, 2009

NEW JERSEY LAWYERS PONDER RECENT COURT OF APPEALS DECISION OUTLINING REQUIREMENTS FOR A CLAIM OF MALICIOUS PROSECUTION.

A claim of malicious prosecution may be based upon an allegation by the Plaintiff that the person who initiated a criminal prosecution against the Plaintiff did so in a reckless manner and without a reasonable basis.   If the criminal prosecution proceeded to a Grand Jury which returned an indictment in the matter, the indictment itself represents a finding of probable cause for the filing of formal criminal charges and, as such, a reasonable basis to proceed against the person named in the indictment.   If the facts presented to the Grand Jury are in dispute, however, there is the possibility that the Grand Jury finding of probable cause may be disputed.

The case before the Court of Appeals involved a financial institution and its certified fraud investigator and a duty of care to a non-customer in whose name and upon whose identification the institution opened an account. The duty included a duty to conduct a reasonable investigation before initiating criminal proceedings against the person with the stolen identity that was used to open the account.

Legal Quote of the Week:

I’m sick and tired of hearing about the number of cases disposed of when we discuss the judicial system. The chief justice should know that the job of the courts is not to dispose of cases but to decide them justly. Doesn’t he know that the business of courts is justice?

Jim R. Carrigan, American jurist; Justice, Supreme Court of Colorado, Los Angeles Herald- Examiner, August 3, 1977.

May 11, 2009

NEW JERSEY CRIMINAL DEFENSE LAWYERS REVIEW RECENT MANUAL ISSUED BY NJ SUPREME COURT DETAILING PROCEDURE FOR MODIFYING MEGAN’S LAW DECISIONS OF THE TRIAL COURT JUDGES OF THE SUPERIOR COURT OF NEW JERSEY- CRIMINAL PART.

A new manual published by the Supreme Court of New Jersey outlines procedures and substantive law for trial court judges throughout NJ to follow in deciding motions filed by convicted sex offenders to alter categorization, registration and supervision requirements under the Megan’s Law of the State of New Jersey. The manual took effect on March 31, 2009 and was adopted by the Court after receiving feedback both from the Attorney General’s Office and the Office of the Public Defender.

Pursuant to Megan’s Law, trial court judges assign a tier rating to convicted sex offenders based upon a risk assessment scale. The new manual sets forth procedures to be used for a registrant to change the reporting requirements involved with community notification for those deemed tier two or tier three. The manual also provides for a change in tier status because of changed circumstances if the trial judge deems appropriate.

Legal Quote of the Week:

The banality of evil.

Hannah Arendt, Eichmann in Jerusalem, 1963

May 4, 2009

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION DECISION ESTABLISHING NEW PROCEDURES FOR LAW ENFORCEMENT CONDUCTING SEARCHES PURSUANT TO THE AUTHORITY OF A SEARCH WARRANT.

Federal criminal defense lawyers are familiar with the concept of the “reasonable continuation doctrine” which allows law enforcement to suspend temporarily a residential search and return later to the scene, re-enter the residence to continue the search for evidence pursuant to the authority found in an otherwise lawfully issued search warrant. The government must establish that the second search was in fact a continuation of the first search and that the decision to re-enter and conduct a second search complies with the reasonable requirement when viewed under the totality of the circumstances.

For the first time in New Jersey, criminal defense lawyers are faced with an Appellate Division decision authorizing the “reasonable continuation doctrine” in this state.   In the case before the Appellate Division, the police acting under the authority of a search warrant attempted to locate a laptop computer in a residence. Unable to locate the laptop, the search was suspended but police returned to the residence two hours later after developing new information as to the location of the laptop which was located and seized on the re-entry to the residence.

Legal Quote of the Week:

Any society that cannot respect its past by granting those who built it financial security faces moral bankruptcy in the future.

Geraldine A. Ferraro, Ferraro: My Story, 1985, with Linda Bird Franke

April 20, 2009

NEW JERSEY LAWYERS REVIEW RECENT AMENDMENTS SIGNED BY NJ GOVERNOR REQUIRING THOSE DRIVERS WITH A SPECIAL LEARNER’S PERMIT TO DISPLAY A DECALSO THAT LAW ENFORCEMENT CAN IDENTIFY THOSE DRIVERS IN THE SPECIAL LEARNER’S CATEGORY.

New Jersey Governor Jon Corzine recently signed several amendments to the New Jersey Motor Vehicle Code which will require all drivers with a special learner’s permit to display a special decal readily identifiable by law enforcement that the driver has a restricted license in the State of New Jersey.    New Jersey becomes for the first state in the United States to enact a special permit decal law. The law shall be known as “Kyleigh’s Law” and shall go into effect in several months allowing for the Chief Administrator of the NJ Motor Vehicle Commission, in consultation with the Division of Highway Traffic Safety in the Department of Law and Public Safety to design a permit that will be clearly visible to law enforcement during the course of their routine duties.   The holder of a special learner’s permit shall not operate a vehicle unless the decals are displayed as directed.

Legal Quote of the Week:

The mark of a truly civilized man is the confidence in the strength and security derived from the inquiring mind.

Felix Frankfurter, Dennis v. United States, 241 U.S. 494, 556 (1951)

April 13, 2009

NEW JERSEY LAWYERS CONSIDER DISMISSAL OF SUIT BY FEDERAL JUDGE OF A NEW YORK JETS FAN’S CLASS ACTION SUIT AGAINST THE NEW ENGLAND PATRIOTS FOR SECRETLY RECORDING SIGNALS OF OTHER TEAMS DURING NFL GAMES.

The National Football League has regulations prohibiting teams from secretly recording the signals used by coaches on rival teams.   A United States District Court Judge for the United States District Court for the District of New Jersey recently dismissed a case against the New England Patriots brought by a fan of the New York Jets based upon hidden videotaping by the Patriots of the Jets coaching staff during a game on September 9, 2007.   The Plaintiff alleged in a class action lawsuit, among other grounds, that the conduct deprived ticket holders of what they paid for- that is, a game played between two teams not influenced by conduct of either in violation of the NFL rules and regulations.   The Federal Judge disagreed by reviewing relevant case law holding that the purchaser of a ticket to a sporting event has the right to enter the facility and view the event.   According to the Federal Judge, the law provides no remedy for complaints by ticket holders regarding the quality of the event.

Legal Quote of the Week:

Men keep agreements when it is to the advantage of neither to break them.

Ascribed to Solon, c.630-c.560 B.C.

April 6, 2009

NEW JERSEY LAWYERS REVIEW RECENT TRIAL COURT OPINION ON ADMISSIBILITY OF ALCOTEST READINGS IN CASES WHERE POLICE OFFICER FAILS TO OBSERVE SUSPECT FOR TWENTY MINUTES PRIOR TO TESTING.

According to judges in Mercer and Camden Counties, the State of New Jersey must produce clear and convincing evidence that a police officer personally observed the alleged drunk driver for a period of twenty continuous minutes before the Alcotest results are admissible at trial.   That requirement is derived directly from the Supreme Court of New Jersey opinion in State v. Chun decided in 2008 which declared the Alcotest device scientifically reliable.

According to the Mercer County Judge: “The purpose of this observation is to ensure that the defendant has not ingested or regurgitated substances that would taint the breath sample.   [The officer’s] failure of recollection defeated the purpose of the observation.”

Legal Quote of the Week:

Ingenuity is one thing, and simple testimony another, and plain truth, I take it, needs no flowers of speech.

Sir James Mansfield, English jurist, Chief Justice

March 23, 2009

NEW JERSEY LAWYERS PONDER RECENT PUBLISHED DECISION OF NEW JERSEY SUPERIOR COURT, LAW DIVISION, REGARDING SUFFICIENCY OF EVIDENCE JUSTIFYING STOP OF AUTOMOBILE BASED UPON ALLEGATION OF DRIVER WEAVING WITHIN LANE OF TRAFFIC.

Law enforcement needs sufficient justification (or reasonable and articulable suspicion) to stop a motor vehicle either on the grounds of a violation of a motor vehicle law in the State of New Jersey or a violation of the criminal or quasi-criminal law.   The investigation of further traffic violations or criminal activity by law enforcement may result if law enforcement is presented with sufficient justification for the additional inquiry.   In a recent case before the Law Division (trial level court) of the Superior Court of New Jersey, the trial court interpreted whether the driver’s actions as observed by law enforcement constituted sufficient justification to execute a stop defendant’s vehicle.   In this case, the defendant was observed by a police officer to veer out of his lane of travel, cross over the fog line which separates the right lane edge with the shoulder of the road.   The officer observed this activity by the defendant twice. Based upon these observations, the court concluded that the defendant’s activities were sufficient to warrant a motor vehicle stop. In reaching that conclusion, the court interpreted the statutory provision which makes failure to maintain a lane a violation of the motor vehicle laws in the State of New Jersey.

Legal Quote of the Week:

General propositions do not decide concrete cases.

Oliver Wendell Holmes, Lochner v. New York, 198 U.S. 45 (1905)

March 16, 2009

NEW JERSEY LAWYERS REVIEW RECENT NJ SUPREME COURT RULING NULLIFYING USE OF POLYGRAPH TEST RESULTS DURING TRIAL WHEN DEFENDANT DID NOT CONSULT WITH LAWYER PRIOR TO ADMINISTRATION OF THE TEST.

The New Jersey Supreme Court in a unanimous decision struck down the use of polygraph test results even when the defendant, prior to being charged in a case, waived his or her right to challenge the use of the test results. In the case before the Court, the waiver was given without the benefit of an attorney advising the defendant.   The ruling results in a new trial for a defendant as the trial court judge instructed the jury that polygraph test results could be an indicator that the defendant was not telling the truth.

The New Jersey Supreme Court further emphasized that the use of polygraph test results is also not sanctioned in New Jersey. The fear is that juries will not properly perform their fact finding role during a trial if they are presented with polygraph evidence. According to the Court: “Some studies suggest that the accuracy rate is ‘little better than could be obtained by the toss of a coin’.”

Legal Quote of the Week:

Let us accept the truth, even when it surprises us and alters our views.

George Sand, 1863

March 10, 2009

NEW JERSEY LAWYERS REVIEW RECENT DECISION OF NEW JERSEY SUPREME COURT OVERTURNING CONVICTION OF A DEFENDANT TRIED IN ABSENTIA DUE TO DEFENDANT FLEEING COUNTRY BEFORE TRIAL OF THE MATTER IN OCEAN COUNTY, NEW JERSEY.

New Jersey Superior Court Judges typically advise defendants that upon setting of a trial date that the trial will proceed on the date set with our without the actual physical presence of the defendant. If the defendant thereafter chooses not to attend the trial due to absconding from the state or country, any resulting criminal conviction will withstand any later procedural due process claim by the defendant that the conviction violated his or her constitutional rights as a result of his or her not being present during the trial.    That assumes, however, that the defendant was properly arraigned on the criminal charges. Absent such procedure, the defendant cannot be deemed to voluntarily waive his right to be present at the trial of the matter.

According to the Court: “The right of a person accused of a crime to be present at his or her trial is among the most fundamental constitutional rights.   That proposition, however, presupposes that the defendant has actual notice of the charges against him.”

Legal Quote of the Week:

A lawyer’s advice is his stock in trade.

Attributed to Abraham Lincoln, 1809-1865

March 2, 2009

NEW JERSEY LAWYERS REVIEW RECENT SUPREME COURT OF NEW JERSEY CASE PROVIDING GUIDANCE TO LAW ENFORCEMENT ON THE SEARCH OF A MOTOR VEHICLE UNDER EXIGENT CIRCUMSTANCES AND WITHOUT OBTAINING A WARRANT PRIOR TO EXECUTION OF A SEARCH.

The New Jersey Supreme Court has issued an opinion providing detailed guidance to law enforcement as to what circumstances justify the warrantless search of a motor vehicle under the New Jersey Constitution.   As a general matter, the justification for a warrantless search exists to provide safety to law enforcement personnel and to preserve evidence. With those goals in mind, the Court outlined several key factors for a trial court to examine in determining whether the actions of law enforcement were reasonable under the circumstances. Among the factors are: the time of the day, the location of the stop, the nature of the neighborhood where the stop occurs, the events which lead up to probable cause for the stop of the vehicle and events after the initial stop and the ratio of officers to suspects. There are several other important factors listed by the Court as well for the Court to determine if there are sufficient emergency circumstances present to justify a search of the vehicle without any form of a warrant.

Legal Quote of the Week:

… no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation… Every constitution then, and every law, naturally expires at the end of 19 years.

Thomas Jefferson, Letter to James Madison, September 6, 1789.

February 23, 2009

NEW JERSEY LAWYERS PONDER RECENT COURT OF APPEALS DECISION ALLOWING DEFENSE EXPERT IN DRIVING WHILE INTOXICATED TRIAL TO OBSERVE STATE’S TRIAL WITNESSES IN FORMULATION OF EXPERT OPINION.

A recent decision of the New Jersey Superior Court, Appellate Division, clarifies for New Jersey municipal court lawyers the sequestration of expert witnesses during the trial of driving while intoxicated charge.   A witness who is subject to sequestration may not be present in the courtroom during the testimony of other witnesses in the case.   Whether to order sequestration of witnesses is typically left in the sound discretion of the trial judge.    The rule is designed to prevent fact witnesses from structuring their testimony around what they hear from other witnesses who previously testify.    In this case before the Court, the defendant called an expert witness not to testify as to the facts surrounding the case but to opine on whether the blood-alcohol measuring device worked properly.   The State of New Jersey in a drunk driving prosecution bears the burden of proving that the device was in proper working order and administered properly by a qualified operator.   That defendant’s expert will opine on the testing methods and the expert’s courtroom presence was deemed necessary by the Court of Appeals to hear the State’s evidence prior to giving testimony before the municipal court.

Legal Quote of the Week:

Where there’s no law there’s no bread.

Benjamin Franklin, Poor Richard’s Almanack, 1744

February 6, 2009

NEW JERSEY LAWYERS CONSIDER RECENT NJ SUPREME COURT RULING PROVIDING GUIDANCE TO TRIAL COURTS IN THE DETERMINATION OF A MOTION TO WITHDRAW A PREVIOUSLY ENTERED PLEA OF GUILTY.

New Jersey criminal defense lawyers periodically encountered a situation in which a client wishes to withdraw his or her previously entered plea of guilty before the trial judge sentences the defendant pursuant to the plea agreement.   The first level of review is whether the plea was entered according to the constitutional requirement that the plea be entered voluntarily and knowingly which includes a sufficient factual basis for the plea and a full understanding of the charge and the consequences of the plea. Assuming those constitutional requirement are met, the NJ Supreme Court now provides trial judges with a balancing test in deciding whether to allow a defendant to withdraw his or her plea.

The Court held that the following factors must be considered and balanced in evaluating the motion to withdraw a guilty plea: 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.   The Court further noted that the trial court should balance all the factors set forth above and the absence of one factor does not immediately result in a grant or a denial of the motion.

Legal Quote of the Week:

A legal decision depends not on the teacher’s age, but on the force of his argument.

Talmud, Bava Batra

February 9, 2009

NEW JERSEY CRIMINAL DEFENSE LAWYERS PONDER RECENT NJ SUPREME COURT DECISION DEFINING PARAMETERS OF THE REQUIREMENT THAT LAW ENFORCEMENT ADMINISTER MIRANDA WARNINGS DURING CUSTODIAL INTERROGATION.

New Jersey criminal defense lawyers routinely face issues of whether a statement given by a defendant in a criminal case is admissible against that defendant.   The issue of whether the Fifth Amendment to the United States Constitution and the New Jersey state law privilege against self-incrimination requires suppression of the statement requires a critical and probing analysis of an attorney.

In the matter before the NJ Supreme Court, the Court declared an initial administration of Miranda warnings prior to custodial interrogation is sufficient to meet the constitutional requirements both under federal and state law even though the questioning by law enforcement of the defendant proceeded from investigatory in nature to accusatory in nature. The Court declined to adopt a mandatory rule that Miranda warnings were required before the questioning turns accusatory.   Instead, the Court directed all trial court judges to weight the totality of the circumstances to determine if the defendant knowingly, voluntarily and intelligently waived his or her constitutional rights.

Legal Quote of the Week:

The right to dissent is the only thing that makes life tolerable for a judge of an appellate court.

William O. Douglas, America Challenged, 1960.

February 2, 2009

NEW JERSEY SUPREME COURT CONSIDERS HEARSAY EXCEPTION FOR OUT OF COURT STATEMENTS MADE BY A WITNESS WHO SUFFERED INTIMIDATION AGAINST TESTIFYING AT A TRIAL

The majority of states in the country recognize an exception of the general rule against the admissibility into evidence at trial of out of court statements.   The exceptions to the general rule are numerous and New Jersey lawyers may have to contend with the addition of another exception if the New Jersey Supreme Court joins the majority of other states regarding intimated witnesses.   The exception, known as the forfeiture-by-wrongdoing doctrine, applies to a defendant in a criminal case in the State of New Jersey who intimidates a witness against testifying before a judge or jury in the trial of the criminal charges.   Witnesses who are in fear of injury or death to themselves or family members as a result of the actions of a criminal defendant and are otherwise unavailable to testify are covered by the proposed exception.   During oral argument of the case before the Court, a Justice of the New Jersey Supreme Court remarked that even landmark decisions of the United States Supreme Court reference that a defendant gives up rights under the Sixth Amendment to the U.S. Constitution involving right to cross-examine witnesses if the defendant intimidates the witness against testifying at trial.

Legal Quote of the Week:

Some circumstantial evidence is very strong, as when you find a trout in the milk.

Henry David Thoreau, 1817-1862
W.H. Auden and Louis Kroneberger,
The Viking Book of Aphorisms, 1962

January 26, 2009

NEW JERSEY LAWYERS REVIEW RECENT COURT OF APPEALS DECISION RULING THAT A DEFENDANT IN A CRIMINAL CASE IN NEW JERSEY CAN BE DEEMED COMPETENT TO STAND TRIAL BY THE SUPERIOR COURT JUDGE AND YET NOT COMPETENT TO SERVE AS HIS OR HER OWN ATTORNEY.

Just because a criminal defendant in a New Jersey criminal case is mentally fit to stand trial (or competent) does not automatically equate to the same defendant being able to act as their own counsel (or self-representation).    The case arises from Burlington County New Jersey where a defendant sought the right of self-representation to defend himself against accusations of fraud in the purchase of a house and a car.   The Burlington County Superior Court Judge gave conditional consent to allow for self-representation by the defendant to allow him to argue pre-trial motions heard before the jury trial. Based upon the defendant’s conduct during pre-trial motions, a psychiatric evaluation concluded that the defendant was competent to stand trial but not competent to represent himself.   The New Jersey Court of Appeals upheld that decision based partly upon a recent United States Supreme Court ruling which allows states to limit the right of self-representation when the issue of mental competency prevents a defendant from voluntarily and intelligently being able to waive his right to counsel.

According to the New Jersey court of appeals:   “A defendant may be competent to stand trial if represented by counsel, but not have the ability to play a significantly expanded role required for self-representation.”

Legal Quote of the Week:

Where the head is sick there is no law.

Proverb, B.J. Whiting and H.W. Whiting,
Proverbs, Sentences and Proverbial Phrases: From English Writings Mainly before 1500

January 19, 2009

NEW JERSEY FEDERAL CRIMINAL DEFENSE LAWYERS CONSIDER NEAR COMPLETION OF SENTENCE MODIFICATIONS FOR FEDERAL CRIMINAL DEFENDANTS CONVICTED OF DISTRIBUTION OF CRACK COCAINE PARTIALLY ALLEVIATING SENTENCING DISPARITY WITH POWDER COCAINE SENTENCES.

As part of the Anti-Drug Abuse Act of 1986, the penalties for distribution of crack cocaine were significantly higher than for distribution of cocaine in a powder form. The increased penalties were legislated by Congress due to the perception at the time that crack cocaine was more addictive, that usage resulted in more violence in society and that pregnant users did more harm to their unborn children than the powder form of the narcotic.    Since that time, many defendants convicted of crack cocaine distribution have received significantly longer sentences compared to those defendants convicted of the same crime involving cocaine powder.

The law had unintended consequences such as reflected in a 2007 report to Congress from the United States Sentencing Commission stating that 81.9 percent of those sentenced on crack cocaine convictions were black in comparison with 27 percent of defendants convicted for powder cocaine.    A massive resentencing effort to narrow the disparity is almost complete in New Jersey and around the country. In New Jersey, for example, eligible defendants received a reduction of 18 months on average.

Legal Quote of the Week:

The toughest part of this job is sentencing. I’ve lost all kinds of sleep over sentences. I find it dreadful.

Malcolm Muir, American jurist; judge, U.S. District Court
San Francisco Examiner & Chronicle, March 8, 1981

January 12, 2009

NEW JERSEY CRIMINAL DEFENSE LAWYERS CONSIDER AN UNPUBLISHED COURT OF APPEALS DECISION HIGHLIGHTING THE NEED FOR TRIAL COURT JUDGES IN THE STATE OF NEW JERSEY TO ENGAGE IN A COMPLETE QUESTION AND ANSWER SESSION WITH ALL DEFENDANTS PRIOR TO ACCEPTING A PLEA OF GUILTY TO A CRIMINAL CHARGE.

Before a Judge in the State of New Jersey can accept a plea of guilty by a defendant in an criminal case, there must a sufficient factual foundation provided by the defendant to support that in fact he or she is guilty of the crime and that the plea is being entered into knowingly, intelligently and voluntarily.    These standards are based upon constitutional rights afforded under the due process clause of both the federal and state constitutions.

In the case before the Court, a defendant sought to vacate a prior plea of guilty on the grounds that he had a defense of duress to the criminal charge which he had attempted to explain to the Judge at the time of the plea.   The Court of Appeals agreed by stating that the defendant, “was not adequately questioned at the plea hearing with respect to the potential defense of duress” and therefore the Court’s duty to question “should have been exercised more liberally to permit him to withdraw his plea and proceed to trial.”

Legal Quote of the Week:

What we needed was someone who would be temperate but decisive. Someone who would be consistent. Someone who knew enough law and had enough confidence to rule from the bench. We needed the ump of all umps. A square-jawed, rock-ribbed referee with heuvos of steel.

Marcia Clark, Without a Doubt, with Teresa Carpenter, 1997

January 5, 2009

NEW JERSEY WORK INJURY LAWYERS CONSIDER RECENT NEW JERSEY SUPREME COURT RULING DECLARING CANCELLATION OF INSURANCE POLICY VIA E-FILING WITH THE STATE IS NOT EFFECTIVE AND THE POLICY STILL VALID.

New Jersey Department of Banking and Insurance Compensation Rating and Inspection Bureau (CRIB) has for several years permitted insurance carriers providing workers= compensation liability insurance to NJ employers to use a file transfer protocol (FTP) to file with the State notice that a cancellation of coverage has been sent to an insured.   The New Jersey Supreme Court, however, agreed with a Judge of Compensation and the Appellate Division that such notice is ineffective. The use of FTP is not a proper substitute for the required certified statement that the statutorily required notice of cancellation to the employer was provided. The written, certified statement is mandated by the statute and is the required procedure according to the NJ Supreme Court.   Without providing the required statement, the insurance carrier has not properly cancelled the coverage.

According to the Court: AThe electronic provision of information to the commissioner, without a certification, completely defeats the notion of personal responsibility that the certification provision was intended to secure.

Legal Quote of the Week:

The foundations of justice are that no one shall be harmed, and next that the common weal be served.

Cicero, 106-43 B.C.

William S. Walsh, International Encyclopedia of Prose and Poetical Quotations, 1968

December 29, 2008

NEW JERSEY CRIMINAL DEFENSE LAWYERS PONDER RECENT COURT OF APPEALS DECISION THAT A JUVENILE DOES NOT HAVE THE RIGHT TO AN ATTORNEY UPON THE FILING OF A JUVENILE COMPLAINT IN THE FAMILY COURTS OF THE STATE OF NEW JERSEY.

Adult criminal defendants have the constitutional right to counsel upon the filing of an indictment formally charging the defendant with a felony offense in the State of New Jersey.  If the matter involves a charge of juvenile delinquency, on the other hand, the matter is resolved in the Family Part, Chancery Division of the Superior Court of New Jersey.   Adult criminal matters are handled in the Criminal Division of the Superior Court of New Jersey and formal charges require the return of an indictment via a Grand Jury unless the Defendant waives this right as part of an overall resolution of the case.

According to the recent decision, the juvenile process is designed to protect and rehabilitate the juvenile and the process begins with the filing of a complaint in the Family Part.   With the exception of a right to indictment, jury trial and bail, the juvenile is given all the rights guaranteed to an adult charged with a crime and even additional protections in the context of a confession.   As a result, the recent decision declined to extend the right to counsel to the juvenile upon the filing of a complaint in the Family Part.

Legal Quote of the Week:

Where I come from, grandparents and family members are supposed to take care of neglected children. It’s an obligation, not something you do for a government paycheck,.

Judy Sheindlin, Don’t’ Pee on My Leg and Tell Me It’s Raining, with Josh Getlin, 1996

December 8, 2008

NEW JERSEY FEDERAL CRIMINAL DEFENSE LAWYERS PONDER RECENT RULING BY DISTRICT JUDGE OF THE UNITED STATES DISTRICT COURT FOR DISTRICT OF NEW JERSEY HOLDING THAT A DEFENDANT CANNOT BE FORCED TO TAKE DRUG THAT MAY MAKE HIM FIT FOR TRIAL IF THE POTENTIAL HEALTH CONSEQUENCES COULD BE HARMFUL.

A Defendant in a bank robbery case before the U.S. District Court for the District of New Jersey cannot be forced to take medication that may make him competent to stand trial if the potential side effects may be harmful to the defendant’s health.   The defendant moved before the U.S. District Judge to be granted the right to represent himself. That motion was granted but the defendant’s behavior thereafter suggested a mental defect which impacted his ability to participate in his defense.   Due to paranoia and delusional thoughts, the Defendant was in fact declared incompetent to stand trial.    The prosecutor then moved, at the recommendation of experts, to have the defendant administered a narcotic that would potentially alleviate some of the mental problems but acknowledged that the defendant was in fact not a danger to himself or others without the medication.   Given that no danger existed,   the United States Supreme Court had previously held that defendants do have a constitutional right to avoid involuntary administration of anti-psychotic drugs unless the government can meet a series of tests.   In the present case, the government did not meet those tests including insufficient evidence that the medication would restore competency and the potential detrimental side effects of the medication.

Legal Quote of the Week:

Decided cases are the anchors of the law, as laws are of the state.

Francis Bacon, De Augmentis Scientiarum, 1623

December 1, 2008

NEW JERSEY MUNICIPAL COURT LAWYERS PONDER RECENT COURT OF APPEALS DECISION UPHOLDING SIMPLE ASSAULT CONVICTION WHEN TRIAL TRANSCRIPT REVEALED SUFFICIENT EVIDENCE THAT DEFENDANT CAUSED PHYSICAL PAIN ADEQUATE TO CAUSE BODILY INJURY.

Simple Assault, a disorderly persons offense in New Jersey, is committed when a person attempts to cause or purposely, knowingly or recklessly causes bodily injury to another. Bodily injury is defined as physical pain, illness or any impairment of physical condition.   In this case before the Court of Appeals, the court decided that physical discomfort, as well as pain, as that word is commonly understood, is adequate in the Municipal Courts of New Jersey to constitute bodily injury for purposes of a guilty finding for simple assault.   The credibility of witnesses and other inferences available for other proofs introduced by the State in a prosecution can be evaluated by the Judge in making the required finding of fact.   In the case before the Court, the Municipal Court Judge relied upon witness testimony regarding the defendant’s conduct and she concluded that the conduct was sufficient to cause physical pain.   There was no testimony from the complaining witness what he felt during the course of the defendant’s conduct or evidence of physical injury.   Nevertheless, the testimony as a whole rendered a reasonable inference by the Judge that the complaining witness suffered physical pain.

Legal Quote of the Week:

The mere advocate, however brilliant, will lose the most cases, though he may win the most verdicts.

B.F. Butler, American general and politician, Autobiography and Personal Reminiscences, 1892

November 24, 2008

NEW JERSEY LAWYERS CONSIDER RECENT COURT OF APPEALS DECISION EXPANDING NJ SUPREME COURT AND US SUPREME COURT RULING UPHOLDING CONSTITUTIONALITY OF STUDENT SEARCHES ON SCHOOL PROPERTY BY SCHOOL ADMINISTRATORS UPON THRESHOLD SHOWING OF REASONABLE SUSPICION

Most search and seizure issues turn on the issue of whether the government had probable cause of the existence of criminal activity in the place or person to be searched prior to conducting the search.   In the case of a school environment, however, the New Jersey Supreme Court and the United States Supreme Court back in early eighties announced that a standard lower than probable cause applied for students thought to be engaged in a violation of the laws of the State of New Jersey or the rules of the school.   That lower standard is reasonable suspicion and provides that school officials may conduct a search without probable cause and without a warrant.   The school is deemed an environment where discipline and a safety overrides the privacy interests of the student.    In applying the reasonable suspicion standard, a reviewing court will examine the “reasonableness” of the search including all the circumstances surrounding the search according to the dictates of reason and common sense.

In this recent case, the Court expanded the reasonable suspicion standard to include student vehicles parked on school property on the same basis used to justify searches of students and their possessions on school property.    Students, moreover, do not have any increased expectation of privacy in vehicles parked on school premises than other secured areas such as school lockers which are subject to search under the reasonable suspicion standard.

Legal Quote of the Week:

I beseech your Majesty, let me have Justice, and I will then trust the law.

Elizabeth Hoby Russell, English diarist and courtier, Spoken to King James I, 1603

November 17, 2008

NEW JERSEY LAWYERS CONSIDER RECENT CASE EXPANDING BAN ON DWI PLEA BARGAINING BEYOND THE MUNICIPAL COURTS AND TO THE SUPERIOR COURTS OF NEW JERSEY

New Jersey lawyers practicing before the Municipal Courts of the state are well aware of the prohibition on plea bargaining in drunk driving cases that are properly venued in one of the many Municipal Courts.   The case before the Superior Court of New Jersey involved an appeal from the denial of a suppression motion in the West Windsor Municipal Court. The appeal from the denial was scheduled to be heard before the Mercer County Superior Court of New Jersey but the state prosecutor and defense counsel sought to resolve the matter by way of negotiated plea to the charge of reckless driving with a dismissal of the drunk driving charge.

The Superior Court Judge would not allow the plea bargain. “Although the plan language of the Plea Agreement Guidelines refers only to municipal courts, this court finds no policy basis to permit plea agreements in Superior Court that are expressly banned in municipal court,” wrote the Judge in deciding the matter.

Legal Quote of the Week:

“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

Oliver Wendell Holmes, Jr., “Path of the Law”, 10 Harvard Law Review, 457, 461 (1897).

November 3, 2008

NEW JERSEY MUNICIPAL COURT LAWYERS CONSIDER APPLICATION OF RECENT NJ COURT OF APPEALS DECISION PROVIDING FOR POINTS ON A NEW JERSEY DRIVER’S LICENSE FOR REPEATED VIOLATIONS OF THE UNSAFE DRIVING LAW.

New Jersey lawyers frequently attempt to negotiate point generating traffic violations to no-point violations of the state unsafe driving law. Drivers can receive two convictions for unsafe driving without receiving points against their license. But, the statute requires points on the third offense unless five years have passed since the last unsafe driving conviction.   In a recent case, the Court of Appeals specifically rejected any argument that the five year gap can apply between the new offense and any previous conviction for unsafe driving.

The Court of Appeals took a literal reading of the statutory law and applied it under the circumstances of the case. The court noted that the law does “not state that relief from the assessment is available when a five-year gap occurs between a new offense and any prior offense,” wrote the court in the opinion. Unsafe driving, as being a permissible statutory downgrade for a speeding ticket in the State of New Jersey, is an important alternative for drivers otherwise faced with points and consequently higher insurance premiums for convictions of speeding and other point carrying traffic offenses.

Legal Quote of the Week:

A good and faithful judge prefers what is right to what is expedient.

Horace, Carmina, c.13 b.c.

October 20, 2008

NEW JERSEY LAWYERS APPLY RECENT REVISION TO NEW JERSEY MUNICIPAL COURT LAW PROVIDING THAT LICENSE SUSPENSION IS NOT MANDATORY IF A DEFENDANT IS FOUND GUILTY OF DRUG POSSESSION AND APPLIES FOR A CONDITIONAL DISCHARGE OF THAT CHARGE.

New Jersey recently enacted a law, effective September 10, 2008, which allows a New Jersey Municipal Court Judge to not suspend the driving privileges of a defendant who is convicted a disorderly or petty disorderly persons offense concerning a controlled dangerous substance or drug paraphernalia and thereafter applies for a conditional discharge. The new law provides for a compelling circumstances exception to the otherwise mandatory driver’s license suspension under the conditional discharge law.   The new law provides that compelling circumstances exist if the suspension of the defendant’s driving privileges would result in extreme hardship and alternative means of transportation are simply not available to the particular defendant before the Court.

Previously in New Jersey Municipal Courts, the Court did not have discretion on whether to suspend the license of the defendant between 6 months to two years on defendants who, although admitted into the Conditional Discharge program, nevertheless were found guilty or pled guilty to the offense.

Legal Quote of the Week:

Just because we cannot see clearly the end of the road, that is no reason for not setting out on the essential journey. On the contrary, great change dominates the world, and unless we move with change we will become its victims.

Robert F. Kennedy, Farewell Statement, Warsaw, Poland, reported in the New York Times July 2, 1964.

October 13, 2008

NEW JERSEY LAWYERS CONSIDER RECENT NJ COURT OF APPEALS DECISION ALLOWING NJ CRIMINAL DEFENSE LAWYERS TO REVIEW PROSECUTOR’S FILE FOR EVIDENCE OF RACISM IN RETRIAL OF FORMER NBA STAR JAYSON WILLIAMS.

Former New Jersey Nets star Jayson Williams is facing a retrial for the charge of reckless manslaughter in the fatal shooting of his limousine driver. Before the retrial, however, his attorneys can review the prosecutor’s file for evidence of a racial slur uttered by an investigator for the prosecution.   The defense may be able to argue, based in part on the racial slur, that the decision to file charges in the matter were in fact motivated by racial issues.

The State of NJ argued that the issue was not relevant to the trial as the investigator in question did not testify at the first trial and would not testify at the second trial. The Court of Appeals, in rejecting that argument, stated: “While the ‘superior officer’ may not testify, defendant is entitled to the information to conduct his own investigation into whether racial bias was systemic or merely confined to the ‘superior officer’.”   The Court may clear that racial bias has no place in any law enforcement investigation occurring in the State of New Jersey.

Legal Quote of the Week:

Hate is like fire- it makes even light rubbish deadly.

George Eliot, Scenes of Clerical Life, 1857

October 6, 2008

NEW JERSEY LAWYERS PONDER RECENT NJ SUPREME COURT CASE DEFINING THE CONSTITUTIONAL LIMITATIONS ON A GRAND SUBPOENA TO OBTAIN AN INDIVIDUAL’S BANK RECORDS.

The New Jersey Constitution prevents unreasonable search and seizures by the government if the accused has standing to object and a reasonable expectation of privacy in the subject matter of the search and seizure. An individual has a reasonable expectation of privacy regarding bank records under the NJ Constitution.   According to the NJ Supreme Court, the use of a grand jury subpoena to obtain bank records of an individual provides protection against excessive government conduct during the course of a criminal investigation.

The State constitutional requirements are satisfied if the grand jury subpoena (duces tecum if for bank records and other records) is relevant to the subject matter of the grand jury investigation.   Relevancy is not a high standard for the government to meet. Indeed, the NJ Supreme Court reflected that the grand jury may investigate “an anonymous charge. So, also, a rumor. Indeed, it may be urgent that a rumor be pursued, to relieve the public of the evil if the rumor is true and the burden of the rumor if it is false.”    As such, there is no probable cause standard applicable to the issuance of the grand jury subpoena and notice to the account holder is not required before the bank complies with the demand for documents.

Legal Quote of the Week:

A trial is a minefield, and any judicial misstep- or even a perceived misstep- can lead to a reversal of the verdict, with no consideration of whether the defendant is guilty or not.

Judge Harold J. Rothwax, Guilty: The Collapse of Criminal Justice, 1996

September 22, 2008

NEW JERSEY LAWYERS CONSIDER NEW DIRECTIVE FROM NEW JERSEY ATTORNEY GENERAL BANNING ALL PLEA BARGAINS WITH PROVISIONAL DRIVERS WHO ARE CHARGED WITH DRIVING OFFENSES.

New Jersey Attorney General Anne Milgram recently announced the issuance of a Directive to the municipal court prosecutors throughout the State prohibiting them from offering plea bargains to provisional drivers- typically teenage drivers in the state. Hearings sponsored by NJ Governor Jon Corzine’s Teen Driving Study Commission were held throughout the state recently wherein teenagers frequently remarked that they were comfortable flaunting the driving laws of the State due to the perceived minor consequences upon conviction. The Commission concluded that the provisional status classification ineffective if teenage drivers can enter into plea bargains including downgraded charges carrying no points against the driver’s license.

The directive from Attorney General Milgram states that because provisional drivers hold licenses on a probationary basis, “it is entirely appropriate that they be held strictly accountable for all motor vehicle violations.”   However, it is equally important to note that the directive does not limit a prosecutor’s discretion to dismiss charges that the State of New Jersey cannot prove beyond a reasonable doubt.

Other recommendations of the Commission included an 11:00 pm curfew for provisional drivers and a limit of one teenage passenger driving in the car with a provisional driver.

Legal Quote of the Week:

All adults stand accused…the society responsible for the welfare of children has been put on trial. There is something apocalyptic about this startling accusation; it is mysterious and terrible like the voice of the Last Judgment: “What have you done to the children I entrusted to you?”

Maria Montessori, The Secret of Childhood, 1936

September 15, 2008

NEW JERSEY LAWYERS CONSIDER NEW JERSEY COURT OF APPEALS DECISION HOLDING THAT EMPLOYEE HAS NO REASONABLE EXPECTATION OF PRIVACY IN INFORMATION ON A WORK COMPUTER OWNED BY HIS OR HER EMPLOYER.

New Jersey lawyers practicing criminal defense often must consider whether the government has complied with the constitutional requirement of reasonable search and seizure. Typically, however, a defendant needs standing to assert an objection to the means and methods employed by the government to search and seize evidence that is later used against the defendant to prove guilt. Standing typically requires, among other requirements, that the defendant have a reasonable expectation of privacy that society is willing to recognize in the place or thing subject to the search and seizure.

The New Jersey Court of Appeals addressed for the first time whether a defendant has standing to object to the seizure of information contained in personal files that are stored in company owned computers. The Court declined to find a reasonable expectation of privacy noting that: “neither the law nor society recognize as legitimate defendant’s subjective expectation of privacy in a workplace computer he used to commit a crime,” The Court looked to other cases decided by federal courts outside of New Jersey holding that employees have no reasonable expectation of privacy when using computers linked to company networks.

Legal Quote of the Week:

…trials by the adversary contest must in time go the way of the ancient trial by battle and blood.

Warren Burger, Speech, American Bar Association, Las Vegas, February 12, 1984

September 1, 2008

NEW JERSEY LAWYERS REFLECT ON RECENT COURT OF APPEALS DECISION LIMITING THE PROTECTIONS OF THE CLERIC-PENITENT COMMUNICATION WHEN THE CLERIC IS NOT ACTING IN THE CAPACITY OF A SPIRITUAL ADVISOR.

New Jersey lawyers practicing in the area of criminal defense in the federal and state courts of NJ review a decision of the NJ Superior Court, Appellate Division, limiting the application of the cleric-penitent privilege under the facts presented in the case.   New Jersey Rule of Evidence 511 sets forth the parameters of the privilege which, if the conditions set forth are met, provides for exclusion from evidence against an accused any statements made by the accused to a cleric.

In the case before the Court, the cleric was given information regarding potential child abuse by a father (penitent) of two girls. The cleric contacted the penitent and told him not to go back to his home. The cleric and the penitent met and admissions from the penitent were forthcoming along with a request for counseling which the cleric refused.   More admissions followed from the penitent along with a request of the cleric to perform the sacrament of baptism. The cleric refused.

In the context of this case, the Court found that the admissions were not protected as the cleric was not acting in the capacity of a spiritual advisor.

Legal Quote of the Week:

Labor to keep alive in your breast that little spark of celestial fire, called Conscience.

George Washington, 1732-1799
Moral Maxims: Virtue and Vice, Conscience.

August 18, 2008

NEW JERSEY LAWYERS CONSIDER RECENT COURT OF APPEALS DECISION EXTENDING DUE PROCESS HEARINGS ON THE ISSUE OF UNDUE INFLUENCE IN THE CASE OF PRIVATE INDIVIDUALS WHO MAY HAVE SUGGESTED THE IDENTITY OF THE PERPETRATOR TO THE WITNESS.

New Jersey law enforcement personnel must follow fairly strict procedural guidelines in the area of pre-trial identification by a witness of an alleged perpetrator of a crime.   Any suggestiveness in the procedure whereby law enforcement suggests the identity of the suspect believed to be the perpetrator must be the subject of a pre-trial hearing.   New Jersey criminal defense lawyers know, at the hearing, the trial court judge must decide if the suggestive conduct of law enforcement tainted the identification of the witness thereby making the identification unreliable and not admissible as evidence in front of a jury.

A recent New Jersey Court of Appeals decision held that the hearing should be extended to review issues of taint even if the source of the taint is not law enforcement but a private citizen. As the Court decision states: “Even when law enforcement agents are not involved, evidence that an identification was made under highly suggestive circumstances that pose a significant risk of misidentification calls the reliability of the initial and subsequent identification into question.”

Legal Quote of the Week:

I know not whether the Laws be right,

Or Whether Laws be wrong;
All that ewe know who lie in gaol
Is that the wall is strong;
And that each day is like a year,
A year whose days are long.

Oscar Wilde, The Ballad of Reading Gaol, 1898

August 4, 2008

NEW JERSEY LAWYERS PONDER RECENT TRIAL LEVEL DECISION OF THE NEW JERSEY SUPERIOR COURT HOLDING THAT UNCOUNSELED PRIOR CONVICTIONS THAT VIOLATE CONSTITUTIONAL REQUIREMENTS CANNOT BE USED AS BASIS TO ENHANCE PENALTIES OF SUBSEQUENT CONVICTIONS.

A Judge of the Superior Court of New Jersey, Trial Division in Burlington County recently held that a defendant cannot be subjected to additional enhanced penalties for an offense on the basis of an earlier offense that violated the constitutional requirements regarding uncounseled prior convictions. A conviction for a charge that carries “consequences of magnitude” requires, before the court takes a plea or conducts a trial, that the Court inform the defendant of the right to counsel and, if the defendant cannot otherwise afford an attorney, the right to have the appointment of an attorney to the defendant without cost.   New Jersey lawyers practicing in the area frequently examine the facts and circumstances of the conviction to determine if the Municipal Court in the State of New Jersey violated that requirement.

If a violation is found to exist, the New Jersey Supreme Court has held that the prior conviction cannot serve as a basis to increase a period of incarceration resulting from a conviction on a subsequent offense.   The NJ Supreme Court relied upon an earlier decision of the U.S. Supreme Court holding that an invalid waiver of counsel resulting in a conviction cannot be used for the purpose of increasing a defendant’s loss of liberty.   In the case before the Superior Court, Burlington County, the trial court Judge ruled that an enhanced period of incarceration for a person driving on the revoked list resulting from a prior uncounseled DWI charge is not constitutionally permissible.

Legal Quote of the Week:

…we have never been a tightly disciplined people and, reflecting this, our legal structure has been more relaxed than that of many other societies. If this has negative aspects, it also gives us a resiliency to tide us over and enable us to meet any crisis as it arises. We will respond slowly, but that is the nature of a democratic society.

Warren E. Burger, Speech, American Law Institute, Washington, D.C., May 19, 1970

July 28, 2008

NEW JERSEY LAWYERS PONDER UPCOMING DECISION BY UNITED STATES SUPREME COURT ON THE APPLICATION OF THE CONFRONTATION CLAUSE TO LAB REPORTS USED TO PROVE AN ESSENTIAL ELEMENT OF THE CASE AGAINST THE ACCUSED.

The right of the accused to confront witnesses against him or her is an essential right under the United States Constitution. In short, if the government is going to introduce evidence against the accused, the accused has the right via cross examination to convince the fact finder that the evidence is not credible. Throughout history, the accused often did not have the right to cross examination in many judicial systems or, if the right existed, the accused himself or herself could cross exam the witness only and not through an attorney. The limitation of the only the accused conducting cross examination provided extreme disadavantages to the accused as cross examination is a skill learned only through diligent effort- a skill that an accused could not be expected to master especially in the context of a trial wherein the personal liberty of the accused hung in the balance.

New Jersey lawyers practicing criminal defense are aware that, upon proper notice, it is often possible to require a forensic expert to testify in person at the trial.   The United States Supreme Court will now take up the issue of whether the accused has a constitutional right to cross examine a lab technician who tested evidence in a case. The case presents an opportunity for the Court to expand upon the decision of an earlier case. In the earlier case, the Court held that evidence created with anticipation of possible use at a later criminal trial cannot be introduced by the government unless the source of the evidence is available for cross examination.

Legal Quote of the Week:

Once conform, once do what other people do because they do it, and a lethargy steals over all the finer nerves and faculties of the soul.

Virginia Wolf, “Montaigne” The Common Reader, 1^st Series, 1925.

July 21, 2008

NEW JERSEY CRIMINAL DEFENSE LAWYERS PONDER RECENT NJ SUPREME COURT DECISION HOLDING THAT THE STATE PROSTITUTION STATUTE FOR THE PUNISHMENT OF REPEAT OFFENDERS IS UNCONSTITUTIONALLY VAGUE

In a case in which the defendant represented herself without an attorney before the highest Court of the state, an indictment for prostitution was dismissed by the Court in which the enhanced penalty relied upon in the charging document was a prior petty disorderly persons offense.   NJ Lawyers who practice criminal defense know that the state statute allows for an enhanced penalty (ie. felony conviction) for repeat offenders of the prostitution laws.   The issue before the Court involved a defendant previously convicted of a petty disorderly persons offense under the prior prostitution laws of New Jersey.   The NJ Supreme Court held that the prior petty disorderly persons offense could not be used as a basis to penalize a defendant as a repeat offender under the current law.

The Court examined the plain language of the statute which was found to be ambiguous and then reviewed the legislative history behind the enactment of the law which likewise did not provide any guidance for the Court.   The Court then invoked the doctrine of lenity to rule in favor of the defendant and dismiss the indictment. Lenity allows for a ruling in favor of the defendant if there is more than one reasonable interpretation of an existing law.

Legal Quote of the Week:

…I, as a lawyer, believe that some significant part of my money, time, thought, and energy belongs- I don’t give it, it belongs- to others, not just to me.

R. Sargent Shriver, Jr.

Washington Post, June 6, 1982

July 14, 2008

NEW JERSEY LAWYERS REVIEW NJ SUPREME COURT REVERSAL OF CRIMINAL CONVICTION BECAUSE TRIAL COURT JUDGE QUESTIONING OF DEFENDANT WHO TESTIFIED IN HIS OWN DEFENSE.

Criminal trial judges in the county level Courts of New Jersey- the Superior Court of New Jersey, Trial Division- have to remain impartial throughout the course of a jury trial to avoid giving the jurors any impression of favoritism of either the defense or the prosecution.

A recent case before the Supreme Court held that a trial court judge crossed the line by intensely questioning a criminal defendant who took the stand to testify in front of the jury in his own defense. The defendant was on trial for posting sexually inflammatory material about his sister on the internet with whom the defendant was engaged in a contentious probate dispute. The material was traced to the defendant’s home computer. The defendant contended at trial that other people with access to his computer placed the material on the internet and not him. The Judge’s intense questioning of the defendant had the impact of having the jurors’ question whether the court doubted defendant’s account of the incident in a case where the defendant’s credibility was a key issue.

As the Supreme Court noted: “In exercising their discretionary power, judges must take care not to influence the jury by signaling doubt about a witness’s credibility. Further, “To do otherwise might place the court’s impartiality in question and affect the trial’s outcome. In this case, the trial judge’s questioning of a criminal defendant ran counter to the above principles.”

Legal Quote of the Week:

You should be a light to jurors to open their eyes, but not a guide to lead them by their noses.

Lord Bacon’s advise to Justice Hutton Marshall Brown,

Wit and Humor of Bench and Bar, 1899.

July 7, 2008

NEW JERSEY SUPREME COURT DECIDES KEY CASE FOR NEW JERSEY LAWYERS PRACTICING IN MUNICIPAL COURTS THROUGHOUT THE STATE OF NEW JERSEY REGARDING ADMISSIBILITY OF DOCUMENTS IN A DRUNK DRIVING PROSECUTION.

New Jersey has unveiled the Alcotest as the new device for testing of blood alcohol concentration of suspected drunk drivers in NJ.   The Alcotest has been determined scientifically reliable by the NJ Supreme Court. In a related case, the Court also decided that documents relating to the State’s previous device, the Breathalzyer, are admissible in a drunk driving case under the business-records exception to the hearsay rule. As such, the records are not testimonial and there is no right to cross examine the author of the record. In a similar case with the Alcotest, the testing and certification records for this new device are also not testimonial and the admission of the record without cross examination does not violate the Sixth Amendment. The purpose of creating the records, according to the Court, is to demonstrate the proper functioning of the machine and not for purposes of proving the offense.

According to the Court: “We discern no meaningful distinction between the foundational documents required for the admission of Breathalyzer blood alcohol test results and those we recently approved in Chun in respect of Alcotest blood alcohol test results,”

Legal Quote of the Week:

The layman’s Constitutional view is that what he likes is Constitutional and that which he doesn’t like is unconstitutional. That about measures up to the Constitutional acumen of the average person.

Hugo L. Black, New York Times, February 26, 1971

June 23, 2008

NEW JERSEY MUNICIPAL COURT LAWYERS PONDER CHANGE IN MOTOR VEHICLE COMMISSION POLICY PROVIDING FOR ASSESSMENT OF POINTS FOR TRAFFIC OFFENSES MERGED BY A MUNICIPAL COURT JUDGE DURING SENTENCING.

Municipal Court Judges in the State of New Jersey in some instances would merge less serious traffic violations into a conviction for a more serious traffic violation occurring on the roads of NJ.   Before a recent change by the Motor Vehicle Commission (MVC), the convicted driver would not have to face additional points for the merged offense. Now, however, the MVC of New Jersey will count merged offenses as separate convictions and thereby allow additional points to be added to the driver’s license. The result can increase the likelihood of license suspension based upon the total number of points accumulated as well as additional surcharges from the MVC. The merged charges will also show up as charges on the driver’s abstract. The MVC cites the need for an accurate reflection of driver history in the driver’s abstract as the reason behind the change of policy.

There exists case law in New Jersey which allows for the merger of a penalty but not the violation. As such, as one case pointed out: “”It is inappropriate to order merger of one charged offense to which no plea of guilty has been entered with another in respect of which a guilty plea has been entered.”

Legal Quote of the Week:

This is not a matter for polite presumptions; we must look facts in the face.

Oliver Wendell Holmes, Frank v. Mangum, 237 U.S. 309, 347 (1915)

June 16, 2008

NEW JERSEY WORK INJURY LAWYERS PONDER RECENT NJ COURT OF APPEALS DECISION THAT THE HIGHER RECOVERY LIMITS OF A 2004 REVISION TO THE WORKERS COMPENSATION DEATH BENEFIT IS NOT RETROACTIVE BEFORE 2004.

On January 14, 2004, an amendment to the New Jersey Workers Compensation Act became effective. The amendment provided that death benefits under the statute were to be paid at a standard rate of 70 percent of gross wages no matter how many dependents survived the fatally injured worker.   That change typically resulted in an increase of benefits payable to dependents from the old law which used a sliding scale ranging from 50 percent to 70 percent of gross wage based upon the number of surviving dependents.

In an interpretation of the amendment, the Court of Appeals decided that the legislature did not intend to make the increased benefits apply retroactively (ie. before the effective date of the amendment- January 14, 2004). In reviewing legislative history and other relevant resources, the Court found no mention of a possible retroactive application of the amendment. A phrase in the amendment that the law “shall take effect immediately” was interpreted by the Court to mean that the rights of the worker accrue on the date of death. If death occurred prior to the effective date, the right accruing did not include the increased benefits.

Considering a retroactive application, the Court reflected that: “In the absence of an unambiguous directive that the Legislature so intended, we cannot conclude that the amendment was expected to be applied in such an expansive fashion.”

Legal Quote of the Week:

There is no surer way to misread any document than to read it literally.

Learned Hand

June 9, 2008

NEW JERSEY LAWYERS REVIEW INTERNET BASED JUROR NOTIFICATION SYSTEM INTRODUCED STATEWIDE FOR CONVENIENCE AND INFORMATION OF POTENTIAL MEMBERS OF CRIMINAL AND CIVIL JURIES.

New Jersey lawyers in the past would often hear of the inconvenience many members of the public felt when called for jury duty in their county of residence in New Jersey only to be informed that their service was not required when they arrived at the courthouse jury assembly room.   A telephone message system in place in New Jersey since the 1980’s has allowed jurors to call the night before their expected date of service to learn if they are in fact expected to appear. Now, the internet will facilitate the process as well by having each county jury manager post information regarding the necessity of an appearance for a potential juror between 4 p.m. and 5 p.m the day before the scheduled date.

NJ lawyers are already aware that civil jury trials are decreasing throughout the state. As such, even those potential jury members who are in fact notified to appear may be sent home without experiencing any courtroom activity.   The internet based system, however, provides one more step toward being responsive to those members of the public who are willing to give their time and service for the effective running of our court system both on the state and federal level.   The jury system is one of the foundations of our society. The burden placed on those who do serve on a jury can be extreme given the length of the some trials (especially criminal jury trials) and the responsibilities of their everyday lives which may have to be placed on temporary hold while serving on a jury.

Legal Quote of the Week:

I confess that in my experience I have not found juries specially inspired for the discovery of the truth…they will introduce into their verdicts a certain amount- a very large amount, so far as I have observed- of popular prejudice, and thus keep the administration of the law in accord with the wishes and feelings of the community.

Oliver Wendell Holmes, Address, January 17, 1899

NEW JERSEY WORK INJURY LAWYERS CONSIDER APPLICATION OF RECREATIONAL ACTIVITY DEFENSE TO ATTEMPTS BY EMPLOYERS TO DENY WORKERS COMPENSATION BENEFITS TO WORK ACCIDENT VICTIMS.

The general rule for work accident lawyers in New Jersey is that an employee engaged in a recreational activity not compelled by the employer which provides no benefit to the employer other than improvement in employee morale is not entitled to benefits under the New Jersey Workers Compensation law. Each case scenario is different and requires detailed analysis prior to making any determination regarding the application of benefits.

A potential exception to the general rule as discussed in some recent cases on the topic involves the use of compulsion by the employer to secure the injured employees participation in the event. Recent case law has emphasized that if employer compulsion exists for participation in an event that leads to an injury, the injured employee may be entitled to benefits under NJ Workers Compensation law. Hence, for example, compulsion may be found in the situation where a supervisor insists that the employee engage in the recreational activity or encourages beyond a mere invitation. If compulsion is found, benefits for the injured worker may follow.

Legal Quote of the Week:

I long have said there is no such thing as a hard case. I am frightened weekly but always when you walk up to the lion and lay hold the hide comes off and the same old donkey of a question of law is underneath.

Oliver Wendell Holmes, 1841-1935
Mark DeWolfe Howe, Holmes-Pollock Letters, 1946

May 26, 2008

NEW JERSEY WORK INJURY LAWYERS CONSIDER POTENTIAL DENIAL OF NJ WORKERS COMPENSATION BENEFITS ON THE BASIS OF SO-CALLED INTENTIONAL ACTS OF THE EMPLOYEE RESULTING IN THE INFLICTION OF THE INJURY.

New Jersey lawyers handling work accident cases have to consider whether the injury suffered by the work injury client is compensable under the Workers Compensation laws of the State of New Jersey. One issue that can arise is whether the injury is as a consequence of an intentional act of the employee which directly results in the injury complained of by the employee.   One of the provisions of the NJ work accident law is that if the employee engages in an activity which intentionally injuries himself or herself or if the activity is substantially certain to result in injury to the employee, the injured worker is not entitled to benefits.

Previous cases by the Courts in New Jersey have resulted in the denial of benefits to an employee playing Russian roulette with a revolver while in an armored bank vehicle in which the gun discharged and injured the worker. Another case decided by the NJ Courts involved an employee enraged by his supervisors criticism to the point where he smashed his fist into an electrical box and consequently breaking bones in his hand was likewise denied benefits under the same doctrine.    While the facts of each case present a different potential outcome, a potential injury can provide an employer with a successful defense to the claim of workers compensation benefits in New Jersey.

Legal Quote of the Week:

While the people retain their virtue and vigilance, no administration, by any extreme of wickedness or folly, can very seriously injure the government in the short span of four years.

Abraham Lincoln, First Inaugural Address, March 4, 1861

May 19, 2008

NEW JERSEY WORK INJURY LAWYERS REVIEW RECENT DECISION HOLDING THAT PETITIONER FAILED TO ESTABLISH A CONNECTION BETWEEN THE WORK ENVIRONMENT AND THE ALLEGED CANCER RESULTING FROM EXPOSURE IN THE WORK ENVIRONMENT AS AN OCCUPATIONAL HAZARD ALLOWING FOR THE AWARD OF WORKERS COMPENSATION BENEFITS.

If the Petitioner in a workers compensation case in New Jersey alleges that an occupational exposure (as opposed to a traumatic injury) caused a workplace injury, the Petitioner has the burden of establishing the casual connection between the workplace environment and the injury before the Judge of Compensation   An award of benefits under the Workers Compensation statute requires the Judge to find the casual connection based upon the Petitioner’s proofs.    In a recent case before a Judge of Compensation in New Jersey, the Judge failed to find such a connection between the Petitioner’s cancer and the work environment finding that Petitioner failed to prove the work environment was a substantial contributing cause or aggravation of the cancer.

The work environment in the case before the Judge of Compensation involved a worker exposed to asbestos but the Petitioner rarely had the opportunity to enter the area of the building containing that hazardous substance.   An expert on behalf of the Petitioner testified but the Judge of Compensation failed to find the basis of the opinion to be persuasive given the other evidence produced during the trial.

Legal Quote of the Week:

When there is room for question, something is wrong.

Jewish folk saying, Joseph L. Baron, A Treasury of Jewish Quotations, 1956

May 12, 2008

NEW JERSEY LAWYERS WHO PRACTICE BEFORE CITIZEN JURIES IN THE STATE AND FEDERAL COURTS TAKE NOTE OF SOUTH KOREA AND THE RECENT ADOPTION OF A MODIFIED JURY SYSTEM.

South Korea is a country without a heritage of jury trials. Recently, however, the country adopted a modified version of the American model of jury trials in cases where the government is alleging a violation of the criminal code. The general societal acceptance of ordinary citizens partaking in the judicial decision making process will be determined at a later date.   The “runaway jury” concept frequently cited in New Jersey and throughout the United States by detractors of the jury trial system has yet to factor into the South Korea model given the limited experience with jury trials to date.

There are key differences, however, between the American model of jury system and the model now in place in South Korea. New Jersey lawyers practicing before juries are aware of the distinct fact finding role of the jury and that, in criminal cases, the sentence of the accused if found guilty is left to the discretion of the Superior Court of New Jersey Judge or the United States District Court Judge and that the decision of the jury regarding guilt or innocence must be unanimous. Only in the most extraordinary circumstances will a Judge overrule the factual determination of a jury. In South Korea, a jury verdict remains non-binding on the Court and are based upon majority vote only.

Regardless of the model, the jury trial remains the hallmark of any democratic society with the benefit of ordinary citizens playing a vital role in the outcome of extremely important matters to the parties and to the society as a whole.

Legal Quote of the Week:

Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up.

Harper Lee, To Kill a Mockingbird, 1960

May 5, 2008

NEW JERSEY LAWYERS CONSIDER RECENT NJ COURT OF APPEALS DECISION UPHOLDING CONSTITUTIONAL REQUIREMENT THAT A SEARCH WARRANT MUST BE BASED UPON DECISION OF THE JUDGE AND NOT THE OBSERVATIONS OF NEW JERSEY LAW ENFORCEMENT.

The Superior Court of New Jersey, Appellate Division, issued a ruling recently requiring the issuance of a search warrant be based upon facts and circumstances known to the Judge issuing the warrant at the time of signing the warrant. In the case, a Judge issued a search warrant for a multiple unit apartment complex but was not informed of the exact apartment sought to be searched for alleged criminal conduct by the occupants of the apartment.   Instead of requiring the police to obtain the information and return to inform the Court of the exact location to be searched, the Judge instead issued the warrant on the condition that it not be executed until the additional information was obtained by the police.   The Court concluded that the constitutional requirement that warrants be issued by a “neutral and detached magistrate” was violated due to the discretion vested in New Jersey law enforcement to determine the place to be searched.

The Court of Appeals also examined the description of the place to be searched as contained in the warrant and also found that aspect of the warrant to be constitutionally deficient. The warrant authorized the police to search whichever apartment was “controlled” or “possessed” by a particular person but did not have a particular description of the place to be searched contained within the warrant.

Legal Quote of the Week:

Justice delayed is not only justice denied- it is also justice circumvented, justice mocked and the system of justice undermined.

Richard M. Nixon, New York Times, March 12, 1971

April 28, 2008

NEW JERSEY LAWYERS PRACTICING WORK INJURY LAW APPLY THE DEFINITION OF PERMANENT PARTIAL DISABILITY IN THE DETERMINATION OF WORK ACCIDENT BENEFITS TO EMPLOYEES INJURED IN THE COURSE OF EMPLOYMENT.

An award of permanency by a Judge of Compensation in New Jersey is one of the possible statutory benefits available to a worker in New Jersey who has suffered a work injury.   The definition of permanent partial disability became law in NJ as a result of enactments of the state legislature in 1980 and then subsequently interpreted by the Supreme Court of New Jersey.   According to our Court, the goals of the enactments that year provided for increasing awards for serious work accidents and to reduce awards for minor injuries.   In applying the concept, the Court has held that demonstrable medical evidence of a disability that restricts the function of his or her body or items members or organs is essential. If the evidence is shown by the injured worker, there must also be a lessening to a material degree his or her working ability or that the disability is significant and not simply the result of a minor injury.   If there has not been a measurable impairment of the ability to work , it is acceptable to consider disability in a broader sense of carrying on the ordinary pursuits of life.

Legal Quote of the Week:

Change just for the sake of change is not necessarily good. But, change to adapt to the situation is survival.

“Adapt- or Lose!”- Ohio State Bar Association Report, vol. XI, no. 21 (May 22, 1967)

April 21, 2008

NEW JERSEY LAWYERS CONSIDER RECENT NJ SUPREME COURT OPINION DECLARING RIGHTS OF INTERNET SUBSCRIBERS IN NEW JERSEY TO PRIVACY IN INFORMATION PROVIDED TO INTERNET SERVICE PROVIDERS.

New Jersey lawyers interested in the area of internet privacy and criminal defense have a new case to consider from the NJ Supreme Court holding a constitutionally protected right to privacy in internet subscriber information.   In an interpretation of the New Jersey State Constitution, the Court declared that law enforcement must act reasonably within constitutionally prescribed limits in obtaining information of this nature- that is, the information must be obtained in a reasonable manner such as via the issuance of a grand jury subpoena to the internet subscriber to the produce the requested records. As the court notes, the target of the grand jury inquiry need not be notified of the subpoena.

In the case before the Court, New Jersey law enforcement issued an improper municipal court subpoena to the service provider in order to obtain the information related to a suspect in an ongoing investigation. The Court noted that this procedure for obtaining the information is invalid under the NJ Constitution and as such violated privacy rights. Accordingly, the evidence obtained in this fashion is suppressed but the information is still available through a properly issued subpoena that meets the constitutional standards and may result in a new indictment being brought against the suspect.

Legal Quote of the Week

Let your accusations be few in number, even if they be just.

Xystus I, pope

The Ring, c.120

April 14, 2008

NEW JERSEY WORK INJURY LAWYERS CONSIDER RECENT COURT OF APPEALS DECISION FURTHER DEFINING THE “COMING AND GOING” RULE IN QUALIFICATION FOR NJ WORKERS COMPENSATION BENEFITS.

            In a recent case decided by the Superior Court of New Jersey, Appellate Division, an injured employee of the NJ Turnpike Authority asserted a claim for statutory benefits under the NJ Workers Compensation Act for an injury the worker sustained in a car accident with another employee while traveling on an access road maintained by the employer. The Judge of Compensation hearing the testimony at the administrative law level found that the injured employee drove to the employer’s premises to retrieve a pay check at the time of the accident.   As such, the employee was not within the scope of employment required by NJ Workers Compensation law in order to qualify for benefits. Course of employment refers to the time, place and circumstances of the accident in relation to the employment.

            The Court further found that in the course of employment can be met if the injured employee even if not engaged in work duties if the accident occurred on the employer’s premises.   The key issues for that determination involve the place of the accident and the control of the employer over the property on which the accident occurred. In the case before the Court, the injured employee was found by the Judge of Compensation to have left the employer’s portion of the complex at the time of the accident and choose an access road that was one of several means of ingress and egress to the employer’s premises.

Legal Quote of the Week:

The only government that I recognize …. is that power that establishes justice in the land, never that which establishes injustice.

Henry David Thoreau, John Brown’s Body, 1859.

April 7, 2008

NEW JERSEY WORK INJURY LAW PROVIDES COMPENSATION TO JOB ACCIDENT VICTIMS WITHOUT CONSIDERATION OF FAULT AND IS GENERALLY THE ONLY REMEDY AVAILABLE AGAINST THE EMPLOYER.

Workers compensation law in New Jersey represents a compromise between the employer and the employee wherein both parties give up certain advantages in order to gain others which are deemed by the State of New Jersey as being more important both the employer and the employee and to society as a whole. For example, the injured worker has lost the right to sue under most circumstances for injuries sustained in the workplace in the civil courts of NJ seeking damages for negligence. That remedy for the work accident employee may have resulted in a higher award, if successful, but resulted in other workers not able to prove their case and receiving no award whatsoever.

Work accident benefits in New Jersey for the non-fatal work injury include statutory provisions for the payment of medical treatment, temporary wage disability benefits while the work accident employee is unable to work and has not reached maximum medical improvement and an award for permanent disability if there are objective residual consequences to the job accident after the employee has reached maximum medical improvement.

Legal Quote of the Week:

God forbid, my lords, that there should be a power in this country of measuring the civil rights of the subject by his moral character, or by any other rule but the fixed laws of the land! …. Unlimited power is apt to corrupt the minds of those who possess it; and this I know, my lords, that where the law ends, tyranny begins.

William Pitt, “The English Constitution” speech delivered in the House of lords in reply to Lord Mansfield in the Case of Wilks, January 9, 1770

Thomas Jefferson, Notes on the State of Virginia, 1785

March 17, 2008

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION CASE HOLDING THAT AN ANONYMOUS TIP, WITHOUT MORE, IS NOT SUFFICIENT EVIDENCE TO SUPPORT A REASONABLE SUSPICION JUSTIFYING A PROTECTIVE PAT-DOWN OR SEARCH OF A MOTOR VEHICLE.

The Superior Court of New Jersey, Appellate Division, recently reviewed the requirements of the Fourth Amendment prohibition on unreasonable searches and seizures within the context of an anonymous tip made to police. The issue for the Court involved the constitutionality of using an anonymous tip, without more, as the basis for reasonable suspicion to support a stop and frisk of a motorist and the subsequent search of a motor vehicle.   The facts of the case before the Court did not support the constitutionality of either search.

The Court held that an anonymous tip, standing alone and without further corroboration from the facts and circumstances faced by the police at the time of the stop, is not sufficient to support a reasonable suspicion under the Fourth Amendment. New Jersey lawyers practicing criminal defense in the state and federal courts are aware of the United States Constitution protection for the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” with a similar provision in the New Jersey Constitution. There is a well-recognized exception for the police to perform a protective stop but the State of New Jersey must show the police had an objective, articulable and reasonable basis to the believe the subject of the stop was armed and dangerous.   While an anonymous tip can justify the detention of the vehicle and the occupants for questioning, the tip alone without corroboration is not sufficient for a stop and frisk of the motorist and search of the vehicle.

Legal Quote of the Week:

The love of justice is simply, in the majority of men, the fear of suffering injustice.

La Rochefoucauld, Maximes, 1665

March 10, 2008

NEW JERSEY WORK INJURY LAWYERS CONSIDER RECENT COURT OF APPEALS DECISION REFUSING TO EXPAND THE APPLICATION OF THE “COMING AND GOING” RULE FOR WORKERS COMPENSATION BENEFITS ELIGIBILITY IN NEW JERSEY.

The NJ Workers Compensation Act provides a general rule that accidents occurring to employees while the employee is traveling to and from work are not within the course of employment unless “the employee is engaged in the direct performance of duties assigned or directed by the employer.”   This rule, known as the coming and going rule, is subject to some important decisions over the years by the Courts of New Jersey.   Work accident lawyers in New Jersey often have to use a totality of the circumstances approach to determine the applicability of the coming and going rule.

One exception to the general rule, known as the travel time exception, provides for benefits to injured employees who are provided compensation by the employer for their travel time to and from distant work sites in spite of the fact that they may not be in the direct performance of work duties.   If the employee is paid an identifiable amount for time spent in a going and coming trip, then the employee is covered for benefits under the statute as being within the course of employment.

In the recent case before the Court, however, the employee in question was considered under the exception for coverage under workers compensation due to the coming and going rule. The employee was reimbursed for gas consumption, wear and tear on his vehicle and tolls. The employee was not, however, paid for his travel time.

Legal Quote of the Week:

The picture cannot be painted if the significant and the insignificant are given equal prominence. One must know how to select.

Benjamin N. Cardozo, 1870-1938, “Law and Literature” Selected Writings of Benjamin Nathan Cardozo, edited by Margaret E. Hall, 1947.

March 3, 2008

NEW JERSEY LAWYERS PRACTICING CRIMINAL DEFENSE CONSIDER RECENT NJ SUPREME COURT OPINION DEFINING ADMISSION CRITERIA FOR THE PRE-TRIAL INTERVENTION PROGRAM, A DIVERSIONARY PROGRAM COMMONLIY KNOWN AS PTI.

Many first time, non-violent defendants charged in the State of New Jersey apply for admission into the PTI program in New Jersey as an alternative to having a formal prosecution of the matter before a judge or jury.   Rehabilitation and supervision are provided to the accused and, if the program is successfully completed, the charges are dismissed.   New Jersey criminal defense lawyers often looked to the guidelines for PTI admission to determine the likelihood a particular defendant can gain admission into the program.    There is a presumption against admission for defendants charged with violent crimes, drug dealing and other serious charges.

In a recent case before the New Jersey Supreme Court, a PTI applicant was barred from the program on an interpretation of an admission guideline.   The Supreme Court reversed by holding that a defendant who is responsible for commission of the same minor crime on more than one occasion is not barred from PTI on the basis that the defendant is “part of a continuing criminal enterprise.”   Without a presumption against admission, the defendant’s application can be considered again including “other factors bearing on the defendant’s potential for rehabilitation will still require analysis and a denial may be based on legitimate negatives in the applicant’s past including by way of example, but not limitation, prior record and lack of remorse.”

Legal Quote of the Week:

Judge a man not by the words of his mother, but from the comments of his neighbors.

Jewish folk saying, Leo Rosten, Treasury of Jewish Quotations, 1972

February 25, 2008

NEW JERSEY LAWYERS REFLECT UPON RECENT UNITED STATES SUPREME COURT OPINION ALLOWING ALL STATES IN THE UNION TO PROVIDE RETROACTIVE APPLICATION OF PREVIOUS 2004 DECISION OF COURT IN CRAWFORD V. WASHINGTON.

In 2004, New Jersey lawyers practicing federal or state criminal defense considered the holding of the United States Supreme Court in Crawford v. Washington. In Crawford, the Court held that testimonial hearsay admitted against an accused in a criminal trial violates the Sixth Amendment right of confrontation under the United States Constitution.   The hearsay may be otherwise admissible under state law rules of evidence regarding hearsay but the Constitution, as the supreme law of the land, makes the evidence inadmissible.

In a case of interest to NJ criminal defense lawyers, the U.S. Supreme Court recently held that any State in the Union can provide that Crawford has retroactive application to cases decided before 2004.    In the case before the Court, a defendant was convicted in Minnesota of assault in 1996 after evidence introduced to the jury included a videotape interview of the complaining witness.   The Minnesota Supreme Court declined to grant relief to the defendant based upon Crawford mainly because the Minnesota Supreme Court believed it lacked authority to grant an extension of the constitutional rule of law announced by the U.S. Supreme Court.

The Courts of the State of New Jersey have yet to express an opinion regarding the retroactive application of the Crawford opinion to cases heard in the state courts prior to 2004.

Legal Quote of the Week:

The first step in the direction of a world rule of law is the recognition that peace no longer is an unobtainable ideal but a necessary condition of continued human existence.

Margaret Mead, New York Times Magazine, November 26, 1961

February 18, 2008

NEW JERSEY LAWYERS CONSIDER RECENT NJ SUPREME COURT DECISION TO EXPAND PERMISSIBLE LAW ENFORCEMENT INVESTIGATIVE ACTIONS REGARDING PASSENGERS DURING MOTOR VEHICLE STOPS IN THE STATE OF NEW JERSEY

New Jersey lawyers practicing in the field of federal criminal defense or state criminal defense should be aware of a recent United States Supreme Court decision declaring that the Fourth Amendment to the United States Constitution definition of “seizure” includes both the driver of a motor vehicle and any passengers within the vehicle when law enforcement undertakes a stop of the motor vehicle.

The New Jersey Supreme Court recently expanded law enforcement investigation authority over passengers of a motor vehicle during a stop. Such passengers do not any expectation of privacy in information on the database known as the Federal Bureau of Investigation NCIC database.   As such, in New Jersey, the Supreme Court of the state held that when law enforcement performs and NCIC search for a passenger during a motor vehicle stop, that search does not constitute a “search” within the Fourth Amendment to the United States Constitution or the New Jersey Constitution.

In compliance with the United States Supreme Court decision, the New Jersey court held that the passenger has been “seized” for purposes of the Fourth Amendment. As such, law enforcement has to act reasonably under the circumstances such as conducting the investigation without undue delay. The NJ Court noted, however, that police conduct will be evaluated within the context of unfolding events that present in each unique traffic stop.

Legal Quote of the Week:

I give up. Now I realize fully what Mark Twain meant when he said, “The more you explain it, the more I don’t understand it.”

Justice Robert H. Jackson, Securities Commission v. Chenery Corporation. 332 U.S. 194, 214 (1947)

February 11, 2008

NEW JERSEY WORK INJURY LAWYERS CONSIDER RECENT CASE REGARDING INTERACTION BETWEEN WORKERS COMPENSATION BENEFITS IN NEW JERSEY AND AN EMPLOYER WHO FILES FOR BANKRUPTCY PROTECTION.

            The Petitioner, an employee of a self-insured company for workers compensation purposes, was injured in the course of her employment and filed a Claim Petition with the New Jersey Division of Labor.   She later amended her petition to join the Second Injury Fund.   A Judge of Compensation in NJ eventually awarded her 65% permanent partial disability against the employer including the cost of future prescription payments.   The employer filed for Chapter 11 Bankruptcy protection and listed as unsecured creditors workers compensation claimants who under the bankruptcy plan would not receive any distributions.

            The case was later placed on the docket to be handled by the New Jersey Self-Insurers Guaranty Association and the injured employee moved to compel payment.   The New Jersey Supreme Court held that a worker injured before the employer’s insolvency is not required to file a proof of claim in the bankruptcy proceeding to qualify for compensation benefits.    In using traditional means of statutory construction, the Supreme Court noted that there are two classes of claimants: those injured before and those injured after the employer’s insolvency and that the proof of claim requirement only applies to the later class.

Legal Quote of the Week:

The people become more subservient to justice…when they see the author of a law obeying it himself.

Claudian (Claudius Claudianus), Panegyricus de Quarto Consulatu, Honorii Augusti, 398

February 4, 2008

NEW JERSEY LAWYERS PRACTICING CRIMINAL DEFENSE IN THE TRIAL COURTS OF NEW JERSEY HAVE NEW CASE REGARDING EXPUNGEMENT OF CONVICTIONS AND THE IMPACT OF CIVIL LITIGATION ON THE ABILITY OF A COURT TO GRANT A REQUEST FOR EXPUNGEMENT.

In a recent case from the Superior Court of NJ, Appellate Division, a petitioner before a trial court in New Jersey on an expungement application shall not be denied relief because of the mere filing of a tort claim notice. The notice by itself is not equal to the civil litigation pending that will bar an expungement.

In this particular case, the petitioner sought to have an arrest record expunged after having a disorderly persons offense dismissed in one of the Municipal Courts of New Jersey.   Following the dismissal of the case, the petitioner filed a Torts Claim Notice against the state police putting the State of NJ on notice of a pending civil action against the State regarding the circumstances of the arrest and charge.   After the expungement, the Petitioner did in fact file suit against the State of New Jersey.

In Somerset County, the venue of the expungement application, the County Prosecutor made a motion to vacate or take back the granting of the expungement on the basis of the filing of the tort claims notice. The Appellate Division held that the filing of a Tort Claim Notice is not civil litigation as defined in the expungement statute.

Legal Quote of the Week:

Lines should not be drawn simply for the sake of drawing lines.

Felix Frankfurter, Pearce v. Commissioner of Internal Revenue, 314 U.S. 593 (1942).

January 21, 2008

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, UPHOLDS TRIAL JUDGE DECISION THAT STATE PRESENTED AMPLE EVIDENCE TO SUPPORT FINDING OF GUILT THAT PASSENGER IN AUTOMOBILE ACTUALLY OR CONSTRUCTIVELY POSSESSEDA CONTROLLED DANGEROUS SUBSTANCE.

New Jersey lawyers practicing in the area of criminal defense are sometimes faced with an accused being charged with possession of an illegal narcotic while riding as a passenger in a vehicle owned and driven by another person.   NJ lawyers now have a case which further defines the evidence which can be sufficient to find that an accused is in fact guilty of possession of the narcotics found in that car. While prior cases can help provide guidance, each case is decided on the unique facts and circumstances of that matter.

In the case before the Appellate Division, two officers stopped a vehicle for erratic driving. After detecting the smell of marijuana and other factors, the officer requested the driver to exit the vehicle and then observed a large plastic bag containing what appeared to be illegal narcotics in the middle of the driver’s seat.   Later lab tests confirmed the substance was in fact an illegal narcotic.   The Court of Appeals remarked that possession cannot be based on mere presence at the place where the illegal drug is found. There must be other circumstances which can be inferred to create a logical conclusion of possession.   In this case, the Court of Appeals found that the odor of the drug along with testimony that it is common for drug dealers to work in teams and the permissible inference that that the driver and passenger were trying to hide the drugs as they continued to drive for several blocks after the police activated their overhead lights signaling the vehicle to stop.

Legal Quote of the Week:

..in my first years upon the bench…I sought for certainty. I was oppressed and disheartened when I found that the quest for it was futile. I was trying to reach land, the solid land of fixed and settled rules, the paradise of a justice that would declare itself by tokens plainer and more commanding than its pale and glimmering reflections in my own vacillating mind and conscience.

Benjamin N. Cardozo, The Nature of the Judicial Process, 1921

January 14, 2008

NEW JERSEY LAWYERS PRACTICING CRIMINAL DEFENSE IN THE STATE COURTS OF NJ REVIEW NEW INTERROGATION PROCEDURES MANDATED BY THE SUPREME COURT OF NEW JERSEY REGARDING A TECHNIQUE COMMONLY REFERRED TO BY LAW ENFORCEMENT AS “QUESTION FIRST- WARN LATER.”

The two-step interrogation process known the New Jersey lawyers and commonly known in the law enforcement community as “Question First- Warn Later” came under close scrutiny by the highest court in New Jersey.   Although the Court did not declare the interrogation process unconstitutional, it did provide trial court judges and lawyers in New Jersey with a set of guidelines to consider in determining whether to admit a confession from an accused obtained by using the interrogation process.   Finding federal law on the topic unclear, the NJ Supreme Court decided the case.

“Question First- Warn Later” refers to a technique used by New Jersey detectives in questioning a suspect in custody without the required warnings given to the suspect about the right to remain silent, etc.- commonly referred to as Miranda warnings.   Only after the suspect provides incriminating statements do the detectives then provide Miranda warnings and take additional statements which the State typically seeks to admit into evidence against the accused.

In addition to providing detailed guidelines to trial court judges, the Supreme Court instructions including particular importance on whether the statements given without the required warnings including information given to the suspect that the “unwarned statements” cannot and will not be used against him.   Law enforcement providing such information would establish powerful evidence that any subsequent waiver of rights was done within constitutional requirements.

Legal Quote of the Week:

Governments derive their just powers from the consent of the governed.

Declaration of Independence, 1776

January 7, 2008

NEW JERSEY LAWYERS WHO PRACTICE FEDERAL OR STATE CRIMINAL DEFENSE WORK CONSIDER RECENT COURT OF APPEALS CASE RULING POLYGRAPH RESULTS INADMISSIBLE EVEN WHEN THE DEFENDANT AGREES TO TAKE THE TEST AND HAVE THE RESULTS ADMITTED BEFORE THE JURY

The general rule in New Jersey is that polygraph test results are inadmissible to show the guilt or innocence of the defendant including whether the defendant requested to take the test or whether the prosecution offered it to the defendant.   The defendant and the prosecution, however, can agree under some strict guidelines to have the examination results admitted before the finder of fact.   The agreement between the parties must be clear, unequivocal and complete. The issue before the Superior Court of New Jersey, Appellate Division, in a recent case involved whether defendants who are not represented can agree to have the results of the examination admissible at trial.   In an earlier case decided by the New Jersey Supreme Court, a defendant represented by counsel could agree to the admissibility of the results. In this case, the defendant was counseled only by a prosecutor at an early stage of the investigation regarding the use of the polygraph results. Based upon the defendant’s interaction with the prosecutor and law enforcement, a stipulation was signed waiving any right to challenge the qualifications of the polygraph administrator and introduce any contrary evidence in the form of another administrator or any other person who may contradict the examination results.

The Court of Appeals found that while the Sixth Amendment right to counsel may not apply at the investigation stage, a defendant’s broad waiver of rights in this case concerning trial strategy should be not be allowed as those decisions would ordinarily be made after consultation with a New Jersey lawyer represented the best interests of the defendant.   The Court of Appeals predicted that while the New Jersey Supreme Court has yet to address polygraph examination agreements signed by a defendant without a New Jersey attorney, the Court would hold them inadmissible based upon other cases previously decided by the NJ Supreme Court.

Legal Quote of the Week:

Human beings have rights, because they are moral beings: the rights of all men grow out of their moral nature; and as all men have the same moral nature, they have essentially the same rights.

Angelina Grimke, American abolitionist, Letters to Catherine Beecher, ed. By Issac Knapp, 1836

New Jersey lawyer, John F. Renner
Certified by the Supreme Court of New Jersey
as a Criminal Trial Attorney

Copyright © 2000 by John F. Renner. All rights reserved.
Any reproduction of all or part of this document, without prior
permission of John F. Renner, Esq. is expressly prohibited.