Monthly Archives: March 2004

2004 Supplemental Report on Municipal Courts

Yesterday, the Supreme Court released the Supplemental Reports of its various rules committees. Among the reports was the submission by the Supreme Court Committee on Municipal Courts.

The Municipal Court Committee’s report contains technical amendments related to bail and bail forfeitures. Under proposed Rule 7:2-1(a)(4), the report establishes the procedures to be utilized by judicial officials and the police when a law enforcement officer seeks to have an arrest warrant issued by telephone, radio or other electronic means. A copy of the 2004 Supplemental Report is attached to this muni-mail.

Due to the publication of the Supplemental Reports, the Supreme Court has increased the time period for comments until April 30th. Signed comments may be directed to:

Richard J. Williams, J.A.D.
Administrative Director of the Courts
Rules Comments
Hughes Justice Complex; P.O. Box 037
Trenton, New Jersey 08625-0037

Signed comments on the Committee reports and recommendations may also be submitted via Internet e-mail to the following address: Comments.Mailbox@judiciary.state.nj.us.

The confidentiality of the commenter will be maintained by the Court upon request.

Download the PDF

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Home search based upon improperly issued TRO – State v. Cassidy

Earlier this morning, the New Jersey Supreme Court released its opinion in State v.Cassidy. The case involve a domestic violence investigation where a TRO was improperly issued. Based upon the improper TRO, the police conducted a search and recovered illegally possessed firearms and other contraband. The defendant lost his motion to suppress and was subsequently convicted of weapons offenses. The Supreme Court ruled that the weapons should have been suppressed.

This case contains an excellent review of basic 4th Amendment issues related to searches of homes and the proper issuance of search warrants.

Download State v. Cassidy

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Communications with Prospective Clients – Ethics Opinion 695

Yesterday, the Advisory Committee on Professional Conduct Released Opinion 695. This Opinion is significant in that it sets forth the duty of confidentiality a New Jersey attorney owes to a prospective client.

On January 1st of this year, the Supreme Court adopted RPC 1.18. This RPC provides generally that a lawyer who has had discussions with a prospective client may not reveal or use information acquired during the discussions, even when no client-lawyer relationship ensures.

Opinion 695 stands for the proposition that duty to protect the confidentiality of communications from a prospective client is now considered equal to the duty to protect the communication from a client. This duty precludes the disclosure of the identity of the person seeking advice, the fact of the contact between the attorney and the prospective client as well as any and all information learned during the exchange, subject to certain exceptions set forth in RPC 1.18 and RPC 1.6.

Download a copy of Opinion 695

RPC 1.18. Prospective Client (a) A lawyer who has had discussions in consultation with a prospective client shall not use or reveal information acquired in the consultation, even when no client-lawyer relationship ensues, except as RPC 1.9 would permit in respect of information of a former client. (b) A lawyer subject to paragraph (a) shall not represent a client with interests materially adverse to those of a former prospective client in the same or a substantially related matter if the lawyer received information from the former prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (c). (c) If a lawyer is disqualified from representation under (b), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except that representation is permissible if (1) both the affected client and the former prospective client have given informed consent, confirmed in writing, or (2) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom and written notice is promptly given to the former prospective client. (d) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a “prospective client,” and if no client-lawyer relationship is formed, is a “former prospective client.” Note: Adopted November 17, 2003 to be effective January 1, 2004.

RPC 1.6. Confidentiality of Information (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c), and (d).
(b) A lawyer shall reveal such information to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client or another person:
(1) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another;
(2) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal.
(c) If a lawyer reveals information pursuant to RPC 1.6(b), the lawyer also may reveal the information to the person threatened to the extent the lawyer reasonably believes is necessary to protect that person from death, substantial bodily harm, substantial financial injury, or substantial property loss.
(d) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to rectify the consequences of a client’s criminal, illegal or fraudulent act in the furtherance of which the lawyer’s services had been used;
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer based upon the conduct in which the client was involved; or
(3) to comply with other law.
(e) Reasonable belief for purposes of RPC 1.6 is the belief or conclusion of a reasonable lawyer that is based upon information that has some foundation in fact and constitutes prima facie evidence of the matters referred to in subsections (b), (c), or (d).

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Impoundment of Vehicles for 39:3-29 Violations

On June 9, 2004, the provisions of N.J.S.A. 39:3-29.1a become effective. This new statute (enacted last year) will require a person who has been issued a summons and complaint charging a violation of N.J.S.A. 39:3-29 for failure to produce insurance credentials to provide the issuing law enforcement agency with proof of insurance within 24 hours. Failure to do so shall result in the issuance of a warrant (the statute does not specify who will issue it) for the immediate impoundment of the vehicle. A copy N.J.S.A. 39:3-29-1a is included with this muni-mail.

39:3-29.1a. Failure to provide proof of insurance; impoundment and sale of vehicle

a. Upon the issuance of a summons for failing to possess or exhibit an insurance identification card in violation of R.S.39:3-29, the violator or registrant shall have 24 hours from the time of the citation to provide the issuing law enforcement agency with the insurance identification card, or other satisfactory proof of insurance. Failure to provide the insurance identification card or other satisfactory proof of insurance within the 24 hour time frame shall result in the issuance of a warrant for the immediate impoundment of the vehicle that was being operated when the summons was issued. A motor vehicle impounded pursuant to the provisions of this subsection shall be removed to a storage space or garage. The registrant shall be responsible for the cost of the removal and storage of the impounded motor vehicle.

b. (1) If the registrant fails to claim a motor vehicle impounded pursuant to subsection a. of this section and pay the reasonable costs of removal and storage by midnight of the 30th day following impoundment, along with a fine of $100 to cover the administrative costs of the municipality wherein the violation occurred, and after a hearing, the municipality may sell the motor vehicle at public auction. The municipality shall give notice of the sale by certified mail to the registrant of the motor vehicle and to the holder of any security interest filed with the New Jersey Motor Vehicle Commission, and by publication in a form to be prescribed by the director by one insertion, at least five days before the date of the sale, in one or more newspapers published in this State and circulating in the municipality in which the motor vehicle has been impounded.

(2) At any time prior to the sale, the registrant or other person entitled to the motor vehicle may reclaim possession of it upon providing satisfactory proof of motor vehicle liability insurance coverage and payment of the reasonable costs of removal and storage of the motor vehicle and any outstanding fines or penalties; provided, however, if the other person entitled to the motor vehicle is a lessor or the holder of a lien on the motor vehicle, he may reclaim the motor vehicle without payment. In such cases, the registrant shall be liable for all outstanding costs, fines and penalties, and the municipality shall have a lien against the property and income of that registrant for the total amount of those outstanding costs, fines and penalties.

(3) Any proceeds obtained from the sale of a motor vehicle at public auction pursuant to paragraph (1) of this subsection in excess of the amount owed to the municipality for the reasonable costs of removal and storage of the motor vehicle and any outstanding fines or penalties shall be returned to the registrant of the vehicle.

Category: Muni-Mail Archive

Sufficiency of Guilty Plea for previous DWI offense – Iowa v. Tovar

Given the mandatory 180-day jail term now required for a third offense conviction for drunk driving under N.J.S.A. 39:4-50(a)(3), it is likely that the municipal courts will experience an increase in the number of post-conviction relief applications and State v. Laurick motions filed. Often, the central issue in these motions will be the voluntariness of a prior conviction based upon an uncounseled plea.

On March 8, 2004, the United States Supreme Court released an opinion that discusses in detail what is required under the 6th Amendment for a knowing, intelligent and voluntary waiver of counsel as part of a plea. Iowa v. Tovar involves a 3rd offense dwi plea. The attorney representing the defendant sought to eliminate, for sentencing purposes, the first offense on the basis that it was taken from the defendant by way of a plea on a pro se basis without a proper waiver. The Iowa Supreme Court ruled for the defendant and held that the U.S. Constitution requires that a pro se defendant who pleads guilty must be advised by the court that he or she will be subject to the risk that a viable defense will not be asserted and that the guilty plea deprives the defendant of the opportunity to obtain an independent opinion of whether it it wise to resolve the case by pleading guilty.

The United States Supreme Court reversed the Iowa Supreme Court and held that the 6th Amendment does not require either of these warnings to be given. The Court went on to detail exactly what is required for an effective waiver.

Download Iowa v. Tovar

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Category: Muni-Mail Archive

Municipal Court Proposed Rule Changes – 2004 Rule Cycle

Earlier today, the New Jersey Supreme Court released the Rules Committee Reports for the 2002-2004 Rule cycle. Attached to this muni-mail you will find the report of the Supreme Court Committee on Municipal Courts.

Among the highlights of the Committee’s Rule change recommendations to the Justices are the following:

1. Guideline 4 to the plea bargaining rules would be amended so to to permit the dismissal on State’s application of any Chapter 35 or 36 offense in consideration of a defendant’s plea of guilty to a single drug offense arising out of the same factual transaction. The State would also be permitted to move for the dismissal of related drug offenses if the defendant is granted a conditional discharge on a drug offense arising from the same factual transaction.

2. Rule 7:2-2(a)(2) would be amended so as to give police officers the option of issuing process for disorderly and petty disorderly persons offenses on a special form of summons and complaint and releasing the defendant without effecting a custodial arrest.

3. Under an amendment to Rule 7:6-2(d)(5), municipal prosecutors would be required to personally place on the record the terms and conditions of plea agreements. Moreover, the use of ad hoc forms and slips of paper containing information about plea agreements would be eliminated. Under a proposed amendment to Guideline 3 of the plea bargaining rules, the prosecutor need not appear on the record for offenses that are set forth on the statewide violations schedule. Rather, the prosecutor may complete and sign a standard form to be used statewide that contains information about the plea offer. The form must also be signed by the defendant. A copy of the proposed form is included in the appendix to the report attached herewith.

4. The provisions of Rule 7:12-3 related to defenses by affidavit would be amended to permit defenses by certification.

5. The dismissal Rule 7:8-5 would be amended to clarify that a dismissal granted under the Rule is final and that the underlying complaint may not be reopened unless to correct a manifest injustice.

The proposed Rule amendments contain numerous other technical and substantive changes, all of which should be thoroughly reviewed by you.

The Supreme Court encourages public comment to proposed Rule amendments. You may forward any comments you have to:

Richard J. Williams, J.A.D.
Administrative Director of the Courts
Rules Comments
Hughes Justice Complex; P.O. Box 037
Trenton, New Jersey 08625-0037

Comments on the Committee reports and recommendations may also be submitted via Internet e-mail to the following address: Comments.Mailbox@judiciary.state.nj.us. The Supreme Court will not consider comments submitted anonymously.

Please submit your comments on or before April 19, 2004. Any Rule amendments adopted by the Justices will become effective in September at he beginning of the new court year.

Download the PDF

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