Spring 2019 NJ Municipal Court Law Review
Spring 2019 NJ Municipal Court Law Review
Police can’t detain occupants on noise complaint State v Chisum
Guilty finding vacated based on state failure to provide evidence State v. Brown
Refusal to let police into home is not criminal interference State v. Fede
1. Police can’t detain occupants on noise complaint State v ChisumOnce the renter of the motel room lowered the volume of the music and the police declined to issue summonses, the police no longer had any reasonable suspicion that would justify the continued detention of the room’s occupants. Once the noise was abated, the police no longer had an independent basis to detain the occupants, or a basis to run warrant checks on them. Such action was unlawful. And because the detention and warrant checks were unlawful, the subsequent pat down of Woodard was also improper. The judgment of the Appellate Division is therefore reversed, and the matter is remanded to the trial court for the withdrawal of defendants’ guilty pleas and further proceedings. (A-35-17/A-36-17; 079823/079835)
2. Guilty finding vacated based on state failure to provide evidence State v. BrownThe State’s failure to produce nineteen discovery items until one week after the beginning of defendants’ murder trial did violate defendants’ due process rights under Brady. The Court reaches this conclusion, in part, because the trial court abused its discretion by excluding admissible impeachment and exculpatory evidence withheld by the State. Though there is no evidence or allegation that the State acted in bad faith or intentionally in failing to timely produce the discoverable material, the Court nonetheless vacates defendants’ convictions and remands for a new trial because defendants were deprived of a fair trial. A-23-17/A-24-17; 079553/079556)
3. Refusal to let police into home is not criminal interference State v. FedeThe Court stresses that the police officers had the right to enter defendant’s home under the emergency-aid doctrine, which permits warrantless entry under circumstances like those presented in this case. Because defendant’s refusal to remove the door chain did not constitute an affirmative interference for purposes of obstructing justice within the meaning of the obstruction statute, the Court reverses the judgment of the Appellate Division and vacates defendant’s conviction. (A-53-17)
4. Miranda violated here where detectives failed to advise subject of charges State v. Vincenty__ NJ __ (2019)The record reveals that the detectives failed to inform Vincenty of the charges filed against him when they read him his rights and asked him to waive his right against self-incrimination. That failure deprived Vincenty of the ability to knowingly and intelligently waive his right against self-incrimination. Pursuant to A.G.D., Vincenty’s motion to suppress should have been granted. (A-40-17)
5. Chief Justice Orders Special Master in the DWI cases involving the trooper who did not conduct correct tests.State v. CassidyWHEREAS the Court in State v. Cassidy(A-58-16) issued a decision on November 13, 2018 holding that Alcotest results from machines calibrated without using a thermometer that produces NIST-traceable temperature readings in the calibration process are inadmissible as evidence; and
WHEREAS the Administrative Office of the Courts previously had been notified by the New Jersey Office of the Attorney General that evidential breath samples from defendants in 20,667 driving while intoxicated (DWI) cases were procured using Alcotest machines calibrated without using a NIST-traceable thermometer and over 1 3,000 of those cases involved findings of guilty, either by trial or by plea;
……..IT IS ORDERED pursuant to N.J. Const. (1947) Art. 6, S 2, 3, that, effective immediately and until further order, Superior Court Judge Robert A. Fall, retired and serving on recall, in addition to any other judicial assignment on recall, is hereby designated as the special master with judicial authority on a statewide basis to make judicial and administrative decisions relating to adjudicated cases in which evidential breath samples were procured using Alcotest machines calibrated without using a NIST-traceable thermometer; and
…….. It is FURTHER ORDERED that this designation of Judge Fall as special master shall last until further order, with Judge Fall being asked to report to the Court as soon as practicable, and regularly thereafter, on the issue of whether statewide management of the subject issues remains beneficial and in the public interest or whether the cases would be better managed at the vicinage and/or municipal level.
6. Lawyer can’t use criminal prosecution for civil benefit In the Matter of HelmerRPC 3.4(g) provides that “a lawyer shall not present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.” The Complaint asserted multiple grounds for the charged violation including Helmer’s entering into a retainer arrangement in which his fee was partly contingent upon payment of restitution; his meeting with Branco, Walters, Matlock, and NFI’s general counsel to press for a criminal prosecution after a declination; Helmer’s participation in drafting the indictment; his testimony before the grand jury; and his influencing Branco and Walters to seek high bail, have the indictment sealed, and arrest Land and Pessiki during a civil mediation session.
RPC 8.4(a) provides that “it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct.” RPC 8.4(d) states that “[i]t is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.” The Complaint asserted that Helmer’s “actions to collect money utilizing the criminal process on behalf of NFI . . . would have impacted the administration of justice in the criminal, civil and bankruptcy cases.”
Victims can pursue restitution in both the civil and criminal arenas. One challenge practitioners face is to refrain from presenting or threatening “to present criminal charges to obtain an improper advantage in a civil matter.” RPC 3.4(g). Heightened care is needed to navigate potential pitfalls in that area. In this case, though, the core issue is not whether private counsel could pursue restitution through the criminal process but rather the manner in which he sought to do so. Helmer’s conduct here pushed the envelope. Although he actively encouraged a criminal prosecution and advocated for restitution for his client, to place primary responsibility on Helmer for what occurred overlooks the role and decision-making authority of the prosecution team.
The burden of proof in disciplinary matters is clear and convincing evidence. R. 2:15- 15(a). In addition, when a violation of RPC 8.4(d) is the sole basis for discipline, a particularly high level of proof is required. The proceedings in this matter did not follow best practices and were troubling in a number of respects. Nonetheless, the Court did not find clear and convincing evidence that Helmer’s conduct violated RPC 8.4(d).
7. Drug court grads entitled to presumption of expungement IMO the Expungement of the Arrest/Charge Records of T.BThe plain language of the 2016 drug court expungement statute requires judges to determine whether expungement would be consistent with the public interest. N.J.S.A. 2C:35-14(m)(2); id. § 52-2(c)(3). Successful graduates who have committed certain offenses and apply for expungement are entitled to a rebuttable presumption that expungement is consistent with the public interest. (A-18/19/)
8. Annual Jersey Shore Happy Hour & Networking Social July 12, 2019Professionals, Attorneys, Law Enforcement invited to Happy Hour & Networking Social. Free for all
at Bar Anticipation 703 16th Ave. Lake Como/ Belmar, NJ 07719
5:30-7:55PM Hot & Cold Buffet
The reduced price Happy Hour is 6-7PM is $2.00 House Drinks, House Wine Bud/BudLt draft. Co-sponsored by NJ State Bar Association Municipal Court Section, Retired Police Middlesex Monmouth Local 9 & several other organizations
Outdoor & Indoor music, prize giveaways. Bring your friends. Pass this along. Please bring a canned food donation for a community food bank, continuing to provide food and help to individuals in need.
Email Ken Vercammen's Law Office so we can put your name on the VIP list for wristbands. [email protected]
If your group, non-profit or organization wishes to co-sponsor the networking happy hour, please contact KENNETH VERCAMMEN, Esq.
9. Photos Handling Drug, DWI and Serious Cases in Municipal Court SeminarNorma M. Murgado,
Esq. Chief Prosecutor
(Elizabeth) & (Woodbridge)
Lorraine Nielsen, Esq.
Municipal Court Prosecutor,
Milltown, North Brunswick
& others Back row
William Brigiani, Esq. Past
Middlesex Bar President
John Menzel, Esq. Past
Chair, NJSBA Municipal
Court Practice Section
Kenneth A. Vercammen,
Esq., Past Municipal Court
Attorney of the Year
10. Photo NJSBA President John Keefe Jr. and Ken V at NJ Bar meeting RomeNJSBA President John Keefe Jr. and Ken V at NJ Bar meeting Rome
11. Bob Carlson ABA president at ABA meeting Las VegasBob Carlson ABA president at ABA meeting Las Vegas
12. Judy Perry Martinez ABA President Elect at ABA meeting Las VegasJudy Perry Martinez ABA President Elect, Kelli Moore Esq. and Ken V at the ABA meeting Las Vegas
13. Jack Canfield Best selling author Chicken Soup for SoulJack Canfield Best selling author Chicken Soup for Soul and Ken Vercammen ABA Author at Charleston Leadership conference
14. Office Space AvailableRent 228 sq. ft Professional Office Space