Monthly Archives: November 2005

Reviewing Courts Should Defer to Mun Ct. Fact Findings – State v. Williams (UNP)

In this UNPUBLISHED decision, the Appellate Division once again reviews the procedures on appeals from a guilty finding in municipal court and stresses that the reviewing courts should defer to the factual findings made by the municipal court judge.

This holding is inconsistent with State v. Johnson, 42 N.J. 146 (1964) where the Justices required the Law Division to make independent findings of fact giving due, although not necessarily controlling, regard for the ability of the municipal court judge to determine credibility. The Appellate Division’s opinion today can be regarded as an interesting expansion of the Supreme Court’s decision on credibility issues in State v. LoCurto, 157 N.J. 463 (1999) upon which it relies.

Download a copy of this UNPUBLISHED decision

Category: Muni-Mail Archive

Improper DWI Sentence Does Not Affect Future Sentences – State v. Smith (UNP)

Last week’s UNPUBLISHED Appellate Division in State v. Smith adds nothing to the existing body of DWI sentencing law. In this case, the defendant was incorrectly sentenced on her 3rd offense as a first offender. So, naturally, when she was convicted of her 4th offense, she argued that she should be treated as a second offender for sentencing purposes. The defendant’s argument was flatly rejected by the Appellate Division, which relied upon well-established case law that was and is directly on point and against the defendant’s position.

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Category: Muni-Mail Archive

Annual Attorney Discipline Report for 2004

The Office of Attorney Ethics has Released the Annual Attorney Discipline Report.

Download a copy of the report

Category: Muni-Mail Archive

Knowing Conduct Not An Element Of DV Harassment – Silva v. Ramos (UNP)

Today’s UNPUBLISHED Appellate Division decision in Silva v. Ramos makes it clear that proof of harassment requires evidence of purposeful conduct. In this domestic violence case, the defendant got into an argument with his former live-in girlfriend, in anger, made vague verbal threats and proceeded to smash up some of his own property with a sledge hammer. The trial judge held that, based upon his conduct, he or knew or should have known that his behavior was likely to harass the plaintiff.

The Appellate Division reversed and ruled that domestic violence harassment requires a purpose to harass or seriously annoy. Proof of knowing conduct is not an element of the harassment offense.

Download a copy of the UNPUBLISHED decision in Silva v. Ramos

Category: Muni-Mail Archive

DWI PCR denied for Newly Discovered Evidence – State v. Kolibaba (UNP)

The UNPUBLISHED Appellate Division decision in State v. Kolibaba presents a good review of what is needed to be proved when a PCR application in a DWI case is based upon newly discovered evidence and/or ineffective assistance of counsel.

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Category: Muni-Mail Archive

Suppressed Evidence unavailable for both DWI and Refusal – State v. Badessa

In today’s Supreme Court decision in State v. Badessa, a unanimous Court ruled that evidence of intoxicated operation of a motor vehicle that was suppressed as a result of constitutional violations is not available to the State in a subsequent refusal prosecution. The Justices reasoned that since intoxicated operation of a motor vehicle is an element of the refusal offense, the suppression of this evidence in the underlying dwi case makes it equally unavailable in a subsequent prosecution to prove the refusal charge.

Download a copy of State v. Badessa

View the video of the Badessa argument before the Supreme court here.

Category: Muni-Mail Archive

Admissions sufficient to Prove Knowledge in 39:6B-2 Prosecution – State v. Kronfeld (UNP)

This UNPUBLISHED Appellate Division decision stands for the proposition that a defendant’s on-scene admissions can constitute sufficient evidence to prove knowledge as an element of driving without insurance under NJSA 39:6B-2 and unregistered motor vehicle under NJSA 39:3-4.

Download a copy of State v. Kronfeld

Category: Muni-Mail Archive

Lewdness requires more than self-touching – State v. Pinto (UNP)

Today’s UNPUBLISHED Appellate Division decision in State v. Pinto provides an excellent review of the proofs necessary in a disorderly persons’ level lewdness prosecution in municipal court. In Pinto, the court ruled that the mere touching or rubbing of oneself, no matter how vigorous. near a fully clothed, intimate part of the body is not flagrantly lewd, even when done in public.

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Category: Muni-Mail Archive

Failure to waive counsel results in PCR – State v. Tutolo (UNP)

Last Thursday, the Appellate Division released its UNPUBLISHED decision in State v. Tutolo. This case provides an excellent review of post-conviction relief procedures in municipal court when the basis for relief is a denial of the right to counsel. Note how the detailed factual basis in this case taken by the municipal court judge was still deemed to be insufficient by the Appellate Division.

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Category: Muni-Mail Archive

Law Division Must Make Independent Findings on Appeal – State v. Campbell (UNP)

Today’s UNPUBLISHED opinion in State v. Campbell provides an excellent review of the standards to be applied on appeal by both the Law division during a trial de novo and the Appellate Division. It is good legal reference source to use when a municipal appeal involves sharply differing fact disputes between the State and defense.

The case involves an appeal by the State from the granting of a motion to suppress in a drunk driving case following a de novo review in the Law Division. The defendant had lost his motion to suppress in municipal court and had entered a conditional plea. The Law Division reversed, based upon its independent findings of fact and credibility determination.

The Appellate Division sustained the factual findings and credibility calls made de novo by the Law Division, although the panel noted that it might not have decided the case on its facts were it to have made the factual determinations.

Download a copy of this UNPUBLISHED decision

Category: Muni-Mail Archive