Monthly Archives: October 2005

Prosecutor’s Ethical Responsibilities Apply in Municipal Court – Opinion 698

The attached is a joint opinion released today by the Supreme Court’s Advisory Committee on Professional Ethics (Opinion 698) and the Committee on Advertising (Opinion 29). Although the thrust of the joint opinion deals with some of the more outrageous, false and irresponsible representations that have recently been made by New Jersey attorneys as part of direct mail solicitations, there is also an important legal issue discussed as well.

The joint opinion states (for the first time) that, under New Jersey law, the ethical responsibilities of a prosecutor under RPC 3. 8apply not only to the prosecution of crimes, but also to the prosecution of traffic offenses, quasi-criminal matters or any other municipal court proceeding.

This joint opinion has the force and effect of law and would be of enormous significance to the Supreme Court if this issue were to litigated before it in a disciplinary case.

Download a copy of the Joint opinion

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Right to Counsel in Municipal. Court Probable Cause Hearings – State v. Dennis

In today’s Supreme Court decision in State v. Dennis, the Justices ruled that a defendant who requests a probable cause hearing in municipal court to challenge the sufficiency of the indictable charges in a pending complaint has the right to have counsel appointed to represent him. Although not mentioned by the Justices, presumably the Court intends that the appointment of counsel be limited to indigent defendants, although that is not clear from the opinion. However, the United States Supreme Court decision upon which the Justices relied, Coleman v. Alabama, 399 U.S. 1 (1970), dealt with the appointment of counsel for an indigent at a preliminary hearing.

Apart from mandating the appointment of counsel at these hearings, the Court did not specify who would be responsible for appointing the attorney or paying for the services. Accordingly, it is not clear if the municipal court judge and municipal court public defender will be involved or whether the assignment will be controlled by action in the Superior Court with participation by the Office of the Public Defender or attorneys from the so-called Madden list (Madden v. Township of Delran,126 N.J. 591(1992)).

Download a copy of State v. Dennis

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Business Records Admissible under Crawford in DWI Case State v. Godshalk

In the coming years, the Law Division decision in State v. Godshalk will be regarded as an important case in that it is the first published decision by a New Jersey court that construes last year’s landmark United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36 (2004).

In Crawford, the Court held that the Sixth Amendment right to confrontation bars the use of any “testimonial” out-of-court hearsay statement of a declarant who is unavailable for trial whom defendant did not have a prior opportunity to cross-examine, even if such statement is otherwise admissible under a hearsay exception.

Crawford has been briefly mentioned in a couple of New Jersey decisions to date, but no substantive discussion of the holding has appeared in any published case until now.

State v. Godshalk, is a municipal appeal of a drunk driving conviction before Judge Cook in Camden County. In municipal court, the defendant objected to the introduction of Breath Testing Instrument Inspection Certificates. These documents are normally admissible as business records. Defendant’s argument was that Crawford barred the use of these types of hearsay documents. In rejecting this position, Judge Cook ruled that even though the Crawford ban against testimonial out-of-court hearsay statements by an unavailable witness may apply in DWI cases, the United States Supreme Court has specifically excluded business records from the scope of that ban.

The text of Judge Cook’s ruling in State v. Goldshalk follows. The case was approved for publication on October 11, 2005.

Superior Court of New Jersey,
Law Division.
STATE of New Jersey, Plaintiff,
v.
Paul GODSHALK, Defendant.
No. 10-2005.
May 26, 2005.
Leo Feldman, Assistant Camden County Prosecutor, for plaintiff.
John Ferzetti, for defendant.

COOK, J.S.C.

INTRODUCTION

Paul Godshalk appeals his March 9, 2005 conviction in Pennsauken Township Municipal Court for driving while Intoxicated (DWI) on October 17, 2004, a per se violation of N.J.S.A. 39:4-50(a)(1)(i) (operation of a motor vehicle with a blood-alcohol concentration of 0.08% and less than 0.10%). Penalties, costs and surcharges totaling $614 were imposed, as well as ninety days driver’s license suspension, and detention at the Intoxicated Driver’s Resource Center (IRDC) for twelve hours.

TRIAL DE NOVO STANDARDS

A trial de novo was conducted by this Court on the evidentiary record in the Municipal Court proceedings. R. 3:23-8(a). The evidentiary record consists of the testimony of Pennsauken Patrolmen Frank Sabella and Shawn Sampson, and the following exhibits: Sampson’s breathalyzer operator certificate; breathalyzer machine inspection certificates for the Pennsauken Police Department breathalyzer machine, dated October 8, 2004 and December 10, 2004; and Sampson’s alcohol influence report, dated October 17, 2004.
This court is bound by the evidentiary record before the Municipal Court. Its function is to determine the case completely anew on the record made in that court, giving due although not necessarily controlling regard to Municipal Court Judge Piperno’s opportunity to assess the credibility of the witnesses. Additionally, this Court must make its own findings of fact. Middlesex County Dep’t of Health v. Importico, 315 N.J.Super. 397, 406 (Law Div.1998) (citations omitted). As Judge Pressler observed in State v. Ross, 189 N.J.Super. 67, 75 (App.Div.1983):

A trial de novo by definition requires the trier to make his own findings of fact. He need, furthermore, give only due, although not necessarily controlling, regard to the opportunity of the municipal court judge to judge the credibility of the witnesses. His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function in respect of defendant’s guilt or innocence. See, e.g., State v. States, 44 N.J. 285, 293 (1965); State v. Johnson, 42 N.J., 146, 157 (1964).

THE EVIDENCE

Pennsauken Patrolman Sabella testified. He is a five-year veteran of the department. While patrolling Westfield Avenue on October 17, 2004, around 12:50 a.m., he observed the following event:

I was on patrol on Westfield Avenue and observed a white Cadillac back from a parking lot in the 4900 block of Westfield, onto Westfield Avenue. The vehicle’s backing caused several other vehicles that were traveling on Westfield Avenue to stop abruptly to avoid a collision. The same white Cadillac then accelerated at a rapid pace, being north up Westfield Avenue, crossing Browning Road. As it accelerated at the rapid pace it was straddling the center line.
The speed limit for Westfield Avenue traffic is 25 m.p.h.

The Cadillac driver was Godshalk. He backed out of the parking lot onto Westfield at an “abrupt pace”, causing two oncoming vehicles to stop abruptly. The vehicles whose path he blocked when he backed out of the lot onto Westfield Avenue, were within a half block when he began that maneuver. Sabella’s vehicle was about a block behind those two vehicles. He followed the Cadillac for about one and one-half blocks. The two vehicles between the Cadillac and Sabella turned onto a side street. Now directly behind the Cadillac, he noted that Godshalk was not wearing a seatbelt. He stopped the Cadillac, spoke to Godshalk, requested his driving credentials, and smelled an odor of alcoholic beverage emanating from his breath. When Godshalk looked for his driving credentials, his hands were slow and fumbling, and he had a hard time going through a stack of paperwork to retrieve his driving documents. Based on all these observations, Sabella believed that Godshalk may have been operating his car under the influence of some type of alcoholic beverage.

Sabella radioed for assistance from a “DWI officer”. Sampson, a DWI officer, responded. He was trained by State Police in the detection of motorists who are operating a vehicle under the influence of alcohol, and has been trained and certified as a breathalyzer operator. He said the signs that one may be under the influence of alcohol include: the odor of alcohol on one’s breath; slurred speech; inability to stand unassisted; bloodshot, watery eyes; slow and fumbling hands; inability to follow simple instructions; and swaying back and forth.

Sampson spoke to Godshalk. His eyes were bloodshot and watery. His face was flushed. Alcoholic beverage odor emanated from his breath. He said he was going home from a bar. He performed the one-leg stand test poorly–he kept putting his foot down. He performed poorly on the walk and turn/heel-to-toe test. He swayed back and forth, couldn’t walk heel-to-toe, walked a crooked path, and didn’t walk the requisite number of steps. He performed poorly on the finger-to-nose test. He kept missing his nose, instead touching his chin and upper lip. When reciting the alphabet, he spoke in a slurred voice and skipped the letters “N” and “V”. He successfully performed the 1 to 25 counting test; and the Romberg test. Based on his observations of Godshalk, and the latter’s overall poor performance on the field tests, Sampson formed the opinion that Godshalk was intoxicated. He transported Godshalk to the station house.
The State proferred the October 8, 2004 and December 10, 2004 “before and after” breathalyzer inspection certifications of Trooper Cross, the State Police officer assigned to inspect the Pennsauken breathalyzer machine. Each certified that the Pennsauken breathalyzer was functioning properly and in proper operating order. Defense counsel objected to the admission of the breathalyzer inspection certificates, asserting that since the State did not produce Cross as a witness at trial, their admissibility was barred under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L. Ed.2d 177 (2004). The objection was overruled.
Sampson testified that he administered two breathalyzer tests to Godshalk. The first test yielded a blood-alcohol concentration of 0.08%. The second test yielded a blood-alcohol concentration of 0.09%. Sampson’s Alcohol Influence Report was admitted in evidence. That document records his compliance with all breathalyzer procedures, and the breathalyzer results. The .08% reading was obtained at 1:35 a.m. The .09% reading was obtained at 1:45 a.m. The State rested.

Defense counsel renewed his motion to exclude Cross’ breathalyzer inspection certificates, relying on Crawford v. Washington. Judge Piperno denied the motion. Defendant rested. Following arguments of counsel, Judge Piperno found Godshalk guilty of a per se violation of N.J.S.A. 39:4-50(1)(i) (operation of a motor vehicle with a blood alcohol concentration of 0.08% but less than 0.10%).

THE ADMISSIBILITY OF THE “BEFORE AND AFTER” BREATH TESTING CERTIFICATES FOR THE BREATHALYZER USED TO TEST GODSHALK: THE “CRAWFORD” ISSUE

The State Police “Breath Testing Instrument Inspection Certificates” of Cross were proferred by the State to fulfill one “of the three preconditions to the admissibility of breathalyzer evidence, namely that the instrument itself be in proper working order at the time of the [breathalyzer] test[ing] [of the defendant]”. State v. Garthe, 145 N.J. 1, 9 (1996).

As in Garthe, defendant “did not challenge the reliability of the breathalyzer test procedures employed by [The officer]”. Id. at 13. Instead, defense counsel challenged the admissibility of the inspection certificates under Crawford v. Washington, asserting that because the State did not produce Cross at trial, defendant was thereby deprived of his Sixth Amendment right to confront and cross-examine Cross.
In a seminal opinion, the United States Supreme Court ruled In Crawford that the Sixth Amendment right to confrontation bars the use of any “testimonial” out-of-court hearsay statement of a declarant who is unavailable for trial whom defendant did not have a prior opportunity to cross-examine, even if such statement is otherwise admissible under a hearsay exception. The Court held that regardless of the reliability of such “testimonial” out-of-court statements, and their admissibility under hearsay exception rules, “the only indicium of reliability sufficient to satisfy constitutional demands is the one [the Sixth Amendment to] the Constitution actually proscribes: confrontation.” Crawford, supra, 541 U.S. at 68-69, 124 S.Ct. at 1374, 158 L. Ed. 22d at 203.

The Sixth Amendment applies to “criminal prosecutions.” The right to confrontation of adverse witnesses guaranteed by Article 1, paragraph 10 of the New Jersey Constitution, likewise applies to “criminal prosecutions”. State v. Ashford, 374 N.J.Super. 332, 338-39 (App.Div.2004). The criminal procedural guarantees of the New Jersey Constitution also extend to non-indictable, quasi-criminal prosecutions. Id. at 339 n. 6. Such prosecutions would include those for disorderly persons offenses, Id. at 333, 339 n. 6; as well as cases involving quasi-criminal charges such as DWI, State v. DiSomma, 262 N.J.Super. 375, 380 (App.Div.1983); petty disorderly persons charges, State v. Avena, 281 N .J.Super. 327, 339 (App.Div.1995) (although harassment by offensive touching is a minor offense, it is subject to the same standard of proof required for a crime, i.e., whether the evidence, viewed in its entirety including the legitimate inferences therefrom, is sufficient to enable the trier of fact to find that the State’s charge has been established beyond a reasonable doubt); and municipal ordinance violation charges, State v. Carlson, 344 N.J.Super. 521, 527 (App.Div.2001) (cases involving ordinance violations, commenced on municipal court summonses, are quasi-criminal matters).

However, while the Crawford ban against testimonial out-of-court hearsay statements by an unavailable witness may apply in DWI cases, the Supreme Court specifically excluded business records from the scope of that ban. 541 U.S. at 55-56, 124 S.Ct. at 1366-67, 158 L. Ed.2d at 195-96.

Defendant does not challenge the admissibility of Cross’ inspection certificates on any basis other than the Crawford decision. The inspection certificates are in the form approved by and annexed to the New Jersey Supreme Court’s opinion in Garthe, supra, 145 N.J. at 13-14 and Appendix A. They are not within the “testimonial evidence” category of Crawford, because they are business records (and official records) of the New Jersey State Police, and thus are admissible under N.J.R.E. 803(c)(6) and (8). State v. Garthe, Id. at 9, 13-14; State v. McGeary, 129 N .J.Super. 219, 225 (App.Div.1974) (cited in Garthe, 145 N.J. at 10, and holding that there is no basis for conceiving that a State Police Inspector would violate his duty and certify that a breathalyzer was functioning properly when the truth was to the contrary).

Defendant’s reliance on Shiver v. State, 900 So.2d 615 (Fla.Dist.Ct.App.2005), as supporting his Crawford argument, is misplaced. There, a Florida trooper prepared a “breath test affidavit” in which he certified that a breathalyzer was tested by another Florida trooper, who was in charge of testing the machine, assuring it was properly maintained and calibrated, and in proper working order. No inspection certificate of the trooper actually assigned to inspect the breathalyzer machine used to test Shiver was produced. In sum, the trooper–affiant was simply attesting to another trooper’s assertion that the breathalyzer had been timely and properly maintained. Id. at 618-619. That is not the case here. The certifications in this case are those of the very trooper assigned to inspect the Pennsauken breathalyzer machine, Trooper Cross. Thus, Shiver is inapposite.

Cross’ certifications are reliable and trustworthy, and qualify as business records. Since Crawford does not apply to business records, defendant’s argument for exclusion of those certifications is without merit.

FINDINGS AND CONCLUSIONS

The testimony of Sabella and Sampson is wholly credible. Their testimony is consistent, uncontroverted, and bears the ring of truth. The coordinator’s inspection certificates of Cross satisfy the State’s burden of proving that the Pennsauken breathalyzer was appropriately tested for accuracy, and that it was in proper working condition at the time Godshalk was tested. See State v. Benas, 281 N.J.Super. 251, 253-54 (App.Div.1995) (“[t]he certificate of inspection … attests to the proper performance of the inspection procedures”); State v. Slinger, 281 N.J.Super. 538, 542 (App.Div.1995) (the coordinator’s certificate of itself is sufficient to satisfy the State’s burden of proving that the breathalyzer has been appropriately tested for accuracy); State v. Maure, 240 N.J.Super. 269 (App.Div.1990), aff’d d.o.b., 123 N.J. 457 (1991); State v. Maida, 332 N.J.Super. 564, 570 (Law Div.2000). The tests were administered by a qualified operator, Sampson; and the tests were conducted in accordance with accepted procedures. Romano v. Kimmelman, 96 N.J. 66, 82 (1984).

Accordingly, I find that the State has proven beyond a reasonable doubt that defendant is guilty of a per se violation of N.J.S.A. 39:4-50(a)(1)(i), operation of a motor vehicle with a blood-alcohol concentration of 0.08% and less than 0.10%.

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Atty & Client Admissions Prove 3rd Offender DWI Status State v. Fuller (UNP)

Today’s UNPUBLISHED decision in State v. Fuller relates to a case where the defendant challenged his status as a third or subsequent DWI offender. The Court ruled that in light of the defendant’s admission in open court as well as the arguments of his attorney, no formal proofs would be necessary for the State to prove the defendant’s status as a third or subsequent offender.

Download a copy A copy of the UNPUBLISHED Appellate Division decision in State v. Fuller

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ACJC Files on Indicted Judge Not Confidential – State v. Clark

Following the Supreme Court’s decision on Wednesday in R.M. v. Supreme Court (holding that the confidentiality provisions of Rule 1:20-9 are unconstitutional), the Appellate Division ruled this morning that once an indictment has been returned against a judge who is under investigation by the Advisory Committee on Judicial Conduct (ACJC), the confidentiality of that investigation under Rule 2:15-20 is no longer necessary nor required. Moreover, the information learned during the ACJC investigation may be utilized as part of the prosecution of the indictment by the State.

Download a copy of State v. Clark

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Grievant Confidentiality Unconstitutional – RM v. Supreme Court

This morning, the New Jersey Supreme court ruled that the provisions of its own Rule 1:20-9, mandating confidentiality in attorney grievance matters is unconstitutional as a violation of the First Amendment.

Rule 1:20-9 requires that a grievance filed against a New Jersey attorney remain confidential unless and until a complaint has been filed against the subject attorney. In overturning this Rule, the court held that enforcement of this policy does not further a compelling governmental interest. The Justices also ruled that a grievant who speaks publicly and outside of the attorney disciplinary process about an attorney disciplinary matter before it goes to the complaint stage and thus becomes a matter of public record does so at his own peril.

The Court ruled that confidentiality will continue for cases that have been concluded. The ability to publicly discuss disciplinary matters in the grievance stage of the the process applies to all future cases and those that are now pending.

Download a copy of RM v. The Supreme Court of New Jersey

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DWI based on Emergency Aid Doctrine – State v. Kramer (UNP)

THE FOLLOWING INFORMATION RELATES TO AN OPINION THAT HAS NOT BEEN APPROVED FOR PUBLICATION.

This morning’s unpublished Appellate Division decision in State v. Kramer relates to a drunk driving prosecution where the police entered the defendant’s garage without a warrant or probable cause to believe the defendant had committed an offense. Inside the garage, the defendant was sitting in her vehicle. The police involvement in the case was based upon reports of erratic driving by the defendant. The police maintained that the entry into her garage was based, in part, upon their concern that she may have been ill and required aid.

In sustaining the defendant’s conviction for drunk driving, the Court ruled that, under the totality of the circumstances, the police entry into the garage was justified under the “emergency aid” exception to the warrant requirement.

Download a copy of State v. Kramer

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Unconditional DWI Plea waives Rights – State v. Ackerman (UNP)

THE FOLLOWING INFORMATION RELATES TO AN OPINION THAT HAS NOT BEEN APPROVED FOR PUBLICATION.

This morning’s unpublished Appellate Division decision in State v. Ackerman provides an excellent example of what can happen when a defendant fails to preserve the right to appeal an adverse pre-trial ruling by entering a conditional plea (See Rule 7:6-2(c)) and neglects to raise (and therefore preserve) all possible technical challenges to a prosecution at the trial level.

In Ackerman, defendant was charged with DWI, Refusal and a variety of related moving violations as part of an eluding incident. She was admitted into PTI on the indictable matter and later pled guilty unconditionally to DWI in municipal court. The other tickets, including a refusal, were dismissed.

Three important points are discussed in this case:

1. The unconditional plea in municipal court bars the defendant from raising challenges to the ensuing conviction based upon double jeopardy and speedy trial;

2. The Court would not consider a challenge to the conviction based upon mandatory joinder considerations (which may have been her strongest argument) since the issue was not raised below; and

3. It was improper for the Law Division to credit a one year period of license loss the defendant served as a condition of PTI on the eluding charge against her 10-year d/l loss on the DWI. The sentence was corrected today by the Appellate Division on its own motion.

Download a copy of State v. Ackerman

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New Court Rule Requires Recording Confessions – Rule 3:17

This afternoon, the New Jersey Supreme Court announced a new Rule of Court that will eventually require electronic recording of custodial interrogations for certain serious offenses. The new Rule 3:17 goes into effect on January 1, 2006 and will, for the first year, apply only in cases of homicide. Beginning in 2007, the Rule will apply to other selected serious crimes. The covered crimes are the same as those listed in Rule 3:3-1(c)(1) for which an arrest warrant must always be prepared after a defendant has been arrested.

The new rule is based upon the Court’s adoption of the recommendations of the Special Committee on Recordation of Custodial Interrogations. Along with the new rule, the Justices also promulgated a jury instruction.

Download Rule 3:17, the jury instruction and the Administrative Determination by the Supreme Court that implements these changes.

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MVC Surcharges constitute a Statutory Lien for Bankruptcy Purposes – In re Schick

In re Schick, 418 F. 3rd 321 (3rd cir. 2005), decided on August 9th of this year holds that motor vehicle surcharges imposed by the New Jersey MVC constitute a statutory lien as opposed to a judicial lien. A judicial lien may be avoided by a debtor in bankruptcy to the extent that it impairs his homestead exemption under 11 U.S.C. 522(f) and 11 U.S.C. 522(d)(1). However, a statutory lien may not be so avoided by a debtor in bankruptcy.

Download a copy of In re Schick

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Serious Violations in Private Cars Result in Suspension of CDL

Recently, the Legislature enacted into law the provisions set forth in Senate bill S2300 (link to http://www.njleg.state.nj.us/2004/Bills/AL05/147_.HTM). This legislation was necessary for the State to comply with the federal Motor Carrier Improvement Act and the regulations established thereunder. The most important amendments are set forth in NJSA 39:3-10.20.

Effective October 1, 2005, the holder of a New Jersey CDL will be subject to an administrative suspension of commercial driving privileges for certain serious moving violations that occur when the licensee is operating a private, non-commercial vehicle.

For example, a DWI conviction will result in a loss of both regular and CDL privileges if the CDL holder was operating a private vehicle while intoxicated. Two 4-point speeding violations in a private (or commercial) vehicle within a 3-year period will also result in an administrative suspension of CDL privileges.

Under the regulations, the MVC will impose the loss of CDL privileges administratively following the in-court conviction for one of the predicate serious moving violations in court.

Download a chart that lists all the offenses covered and the authorized terms of license loss.

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Non-Governmental Employment Official Misconduct – State v. Perez

This morning’s per curiam Supreme Court decision in State v. Perez provides an important clarification and expansion of criminal liability for official misconduct. The defendant in Perez was charged with conspiracy to commit official misconduct (2nd degree) on the basis of an agreement he made with the head clerk of a DMV agency for the delivery of fraudulent DMV documents. The Agency in question had been previously “privatized” and was run by an independent entity that had no connection to the State. The defendant’s argument was that he could not be convicted of the conspiracy charge because the individual with whom he conspired was not an employee of any political subdivision of the State of New Jersey.

The Justices rejected this argument and held that because the DMV agency was performing an essential governmental function, the actions of the head clerk in agreeing to provide the documents, constituted official misconduct. Accordingly, the defendant could, as a matter of law, conspire with her to commit this crime.

Download a copy of State v. Perez

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No Simple Assault based on 39:4-96 – Pamula v. Torelli (UNP)

The Attached Opinion, Pamula v. Torelli HAS NOT been approved for publication

Pamula v. Torelli, an unpublished Appellate Division released today involves an appeal of a domestic violence FRO. At the hearing in Family Court, the judge used the recklessness definition under NJSA 39:4-96 in determining that the defendant had recklessly committed an act that appeared to the judge to be some type of assault with a motor vehicle.

The Appellate division reversed the granting of the FRO and ruled that a Family Court judge must decide by a preponderance of the evidence if one of the foundational criminal offenses in the Prevention of Domestic violence Act has been violated. Moreover, the proper definition of recklessness to be used in deciding a simple assault allegation in the one in the Code of Criminal Justice, not the one in Title 39.

Download a copy of Pamula v. Torelli

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Speeding conviction based on officer opinion – State v. Ashjian -UNP

The Attached Opinion, State v. Ashjian, HAS NOT BEEN APPROVED FOR PUBLICATION.

State v. Ashjian, an unpublished decision released today involves a speeding case where the Appellate Division excludes the results of a speed measuring device called a “Python” but finds sufficient evidence in the record to sustain the defendant’s conviction based upon the officer’s opinion that the defendant was speeding.

This case is an excellent resource for background on the scientific proofs necessary to prove a speeding case based upon scientific proofs and the steps required by a municipality to establish a legal speed zone.

Download a copy of State v. Ashjiam

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