Monthly Archives: January 2006

Certificate of Debt not Subject to Statute of Limitaions – In re Robinson (UNP)

In re Robinson is an UNPUBLISHED Appellate Division decision which holds that a certificate of debt filed by the Motor Vehicle Commission to collect a DWI surcharge is not subject to the civil statute of limitations. The filing of a certificate of debt is not the same as filing a lawsuit and is not subject to the equitable doctrine of laches.

Although not discussed in the opinion, it is important to note that the 3rd Circuit has recently interpreted a certificate of debt filed in a New Jersey DWI surcharge case to be a statutory lien and thus not subject to discharge in bankruptcy in the same manner as a debt reduced to a judicial lien. See generally:

In re Schick, 418 F.3d 321 (3rd Cir. 2005) A statutory lien is defined in 11 U.S.C.A. 101(53) as a “lien arising solely by force of a statute on specified circumstances or conditions, or lien of distress for rent, whether or not statutory, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and whether or not such interest or lien is made fully effective by statute.”

Download a copy of In re Robinson, an unpublished decision.

Category: Muni-Mail Archive

Tip Corroboration Justifies MV Stop – State v. Birkenmeier

This morning’s New Jersey Supreme Court opinion in State v. Birkenmeier involves a police stop of a motor vehicle based upon the tip of a confidential informant. The Justices held that the corroboration of certain limited factual aspects of the tip provided sufficient reasonable suspicion for the police to stop the defendant’s car. Once the police effected the stop, they detected the smell of raw marijuana which gave them probable cause to search the entire car under the automobile exception. Following the auto search, the defendant gave a voluntary, oral consent to a search of his home where more CDS was recovered.

While reviewing this case, please be mindful of two issues.

1. Note that when discussing the automobile exception’s requirement of exigent circumstances, the Court simply assumes exigent circumstances and comments in a footnote on the failure of the defendant to argue the issue below. Compare this outcome to last week’s decision in State v. Dunlap where the presence of 10 police officers at the arrest scene vitiated the exigent circumstances.

2. The Justices assume without deciding (see footnote 3) that the requirement for reasonable suspicion required in the consent search of a motor vehicle also applies to other consent searches when a defendant is in custody. You may wish to interpret this as a sign that the Court may not yet be ready to rule that a reasonable suspicion is required for a consent search outside the motor vehicle context. However, the Appellate Division has already assumed that such a belief is required prior to seeking consent for the search of a residence. See State v. Domicz, 377 N.J.Super. 515, 873 A.2d 630 (App. Div. 2005).

Download a copy of State v. Birkenmeier

Category: Muni-Mail Archive

Law Division Judge Must Decide a Municipal Appeal – State v. Stepongzi (UNP)

Today’s UNPUBLISHED Appellate Division decision in State v. Stepongzi stands for a simple proposition, supported by decades of case law (going back to State v. Johnson in 1964) and the Rules of Court. A Law Division judge must conduct a trial de novo on a municipal appeal and make independent findings of law and fact based upon the record below. In this drunk driving appeal, the Law Division judge simply affirmed the findings of the municipal court. The Appellate Division reversed the decision and remanded for a proper appeal.

Download a copy of State v. Stepongzi, an UNPUBLISHED decision.

Category: Muni-Mail Archive

AG Orders Recording of Interrogations to Conform to Rule 3:17

In his final official act in office, the outgoing Attorney general today issued Directive 2006-02. The Directive conforms the time table for implementation of the recording of custodial interrogations to Rule 3:17.

When fully implemented on January 1, 2007, the Directive and rule 3:17 will require electronic recordation of interrogations for all crimes of the third degree or higher that must always be prepared on a warrant. (See Rule 3:3-1(c)).

The mandatory recording of statements does not apply to drunk driving or disorderly persons offenses.

Download a copy of the Directive 2006-2.

Category: Muni-Mail Archive

Drug Offense D/L Loss May Now Be Waived – 2C:35-16(a)

Among the many bills signed into law yesterday by the acting-governor was an amendment to NJSA 2C:35-16(a). Previously, this statute required a license suspension ranging between 6 months and 2 years upon conviction for every Chapter 35 and chapter 36 drug offense. Under the newly amended statute, a judge may waive the license loss upon a showing by the defendant of “compelling circumstances.” Compelling circumstances are defined under the law as a situation where “the forfeiture of the person’s right to operate a motor vehicle over the highways of this State will result in extreme hardship and alternative means of transportation are not available.”

The text of the newly amended statute follows:

2C:35-16. Forfeiture or Postponement of Driving Privileges.

a. In addition to any disposition authorized by this title, the provisions of section 24 of P.L.1982, c.77 (C.2A:4A-43), or any other statute indicating the dispositions that can be ordered for an adjudication of delinquency, and notwithstanding the provisions of subsection c. of N.J.S.2C:43-2, a person convicted of or adjudicated delinquent for a violation of any offense defined in this chapter or chapter 36 of this title shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period to be fixed by the court at not less than six months or more than two years which shall commence on the day the sentence is imposed unless the court finds compelling circumstances warranting an exception. For the purposes of this section, compelling circumstances warranting an exception exist if the forfeiture of the person’s right to operate a motor vehicle over the highways of this State will result in extreme hardship and alternative means of transportation are not available.

In the case of [any] a person who at the time of the imposition of sentence is less than 17 years of age, the period of any suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court of not less than six months or more than two years after the day the person reaches the age of 17 years. If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this title, any evocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.

b. If forfeiture or postponement of driving privileges is ordered by the court pursuant to subsection a. of this section, the court shall collect forthwith the New Jersey driver’s license or licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the Director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle during the period of license suspension or postponement imposed pursuant to this section, the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40. If the person is the holder of a driver’s license from another jurisdiction, the court shall not collect the license but shall notify forthwith the Director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person’s non-resident driving privilege in this State.

c. In addition to any other condition imposed, a court may in its discretion suspend, revoke or postpone in accordance with the provisions of this section the driving privileges of a person admitted to supervisory treatment under N.J.S.2C:36A-1 or N.J.S.2C:43-12 without a plea of guilty or finding of guilt.

Category: Muni-Mail Archive

Citizen Has No Right To Appeal Dismissal for Lack of P/C – State v. Preto (UNP)

In municipal court, a person who wishes to file a complaint may do so and the court will accept the complaint for filing. However, the no process in the form of a summons or warrant may issue unless a finding of probable cause has been made first by a judicial officer. In State v. Preto, an UNPUBLISHED decision, the municipal court judge declined to issue process on a citizen complaint because he felt that the affidavit of probable cause did not establish probable cause to believe an offense had occurred. The citizen sought to appeal to the Law Division. The Law Division dismissed the appeal, reasoning that a private citizen has no right to appeal such a determination. The Appellate Division affirmed this ruling. Such appeals are the proper area of concern for a public prosecutor. A private citizen has no standing to appeal such a ruling.

Download a copy of State v. Preto, an UNPUBLISHED decision

Category: Muni-Mail Archive

Traveling from Point to Point Not Drug Loitering – State v. Mahon (UNP)

The UNPUBLISHED Appellate Division decision in State v. Mahon involves an interpretation of NJSA 2C:33-2.1, Loitering for the Purpose of Obtaining or Distributing CDS. Generally, the statute requires proof of five distinct elements:

1. The Defendant was in a public place;

2. the Defendant wandered, remained or prowled in that public place;

3. the Defendant had a purpose to obtain CDS;

4. obtaining the CDS was unlawful (i.e. without a prescription); and

5. the Defendant engaged in conduct that manifested an intention to obtain CDS.

In Mahon, the Appellate Division reviewed the evidence presented in the municipal court and found that it lacked proof on the element that the Defendant wandered, remained or prowled. Rather the proofs reveal that she merely had traveled from point to point. Accordingly, the Appellate Division reversed her municipal court conviction.

Download a copy of State v. Mahon, an UNPUBLISHED decision

Category: Muni-Mail Archive

DV Contempt Now Includes Out-of-State Restraining Orders – 2C:29-9(b)

One of the bills signed into law today by the acting-governor expands the 4th degree crime and disorderly persons offense of contempt of court in a domestic violence context by including under the purview of NJSA 2C:29-9(b) a DV restraining ordered issued in a foreign jurisdiction. The amended statute reads as follows:

1. N.J.S.2C:29-9 is amended to read as follows:

2C:29-9. Contempt. a. A person is guilty of a crime of the fourth degree if he purposely or knowingly disobeys a judicial order or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a court, administrative body or investigative entity.

b. Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c.261 (C.2C:25-17 et al.) or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense. In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of P.L.1991, c.261 (C.2C:25-29) or substantially similar orders entered under the laws of another state or the United States shall be excluded from the provisions of this subsection.

As used in this subsection, “state” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by a federal law or formally acknowledged by a state.

Category: Muni-Mail Archive

Vehicle Search Incident to Arrest Disallowed in NJ – State v. Eckel

Today’s landmark decision by the New Jersey Supreme Court in State v. Eckel affirms an Appellate Division decision from December 2004 which held that the exception to the warrant requirement dealing with motor vehicle searches incident to the arrest of one of the occupants, the so-called Belton Rule, does not apply in New Jersey due to the enhanced protections afforded under Article I paragraph 7 of the State Constitution. In its decision, the Supreme Court reasoned that after a person has been arrested, removed from a vehicle and secured by the police, the underlying reasons for a search incident to an arrest (recovery of implements of escape, evidence and weapons) no longer exists. Accordingly, a search of a motor vehicle under such circumstances is unreasonable under the State Constitution.

Today’s decision will have an enormous impact on law enforcement procedures in New Jersey and should be regarded as an enormous change in the law of arrest, search and seizure in our state.

Download a copy of State v. Eckel

Category: Muni-Mail Archive

Supreme Court Permits Stay in DWI Sentences/Reliability Hearings – State v. Chun

Today, the New Jersey Supreme Court issued a supplemental order in connection with the State v. Chun litigation related to the scientific reliability of the Alcotest 7110.

The Order permits municipal court judges to stay the imposition of a DWI sentence for a first offender or of a subsequent offender when the sole evidence of guilt comes from an alcotest breath sample.

The Order also stays reliability hearings in municipal court related to the Alcotest 7110 until the disposition of State v. Chun.

Moreover, under the Order, defendants may enter conditional pleas of guilty, a procedure that will enable them to seek relief in the future should the Court decide that the Alcotest 7110 is not scientifically reliable.

Download a copy The Court’s supplemental Order

Category: Muni-Mail Archive

Lack of Exigent Circumstances Invalidates Search – State v. Dunlap

State v. Dunlap, decided today by the New Jersey Supreme Court, is a companion case to the landmark decision in State v. Eckel, also decided today. The facts of the case involve the arrest of a defendant as part of a drug investigation. Ten police officers participated in the arrest. Distribution levels of CDS and a firearm were recovered from the defendant’s vehicle. The State argued two independent theories to support the search of the defendant’s automobile: a search incident to the defendant’s arrest and the automobile exception.

The Supreme Court rejected the search incident to an arrest argument based upon its ruling in the Eckel case. With respect to the automobile exception, the Justices found that although there was probable cause to suspect that contraband would be in the vehicle, the presence of 10 officers at the scene of the arrest vitiated the second requirement of this exception to the warrant requirement: exigent circumstances.

The importance of the Dunlap decision is related to the exigent circumstances issue. It may be the first published case in New Jersey where a court of appellate authority has found that the police lacked exigent circumstances. Note how the Justices suggest that the police could have requested a search warrant in this case, or simply impounded the vehicle.

Download a copy of State v. Dunlap

View the Video

Category: Muni-Mail Archive

Ordinance Violation Can Be a Factor in Terry Stop – State v. Townsend (UNP)

The UNPUBLISHED Appellate Division decision in State v. Townsend involves a review of the factors needed to establish the right to detain and frisk a suspect (a so-called Terry stop, also known as an investigative detention). One of the factors that may support such a Terry stop is a perceived violation of a municipal ordinance, in this case drinking in public.
This case provides an excellent review of the factors required to justify a Terry stop and frisk was well as the applicable law on searches incident to an arrest.

Download a copy of State v. Townsend, an UNPUBLISHED decision

Category: Muni-Mail Archive

Assembly Passes “New Jersey Smoke-Free Air Act” of 2006

This afternoon, the Assembly passed the New Jersey Smoke-Free Air Act. This legislation was previously passed by the Senate in December and will be signed into law next week as one of the final acts of the acting-Governor. The law will go into effect 90 day after being signed. The Act prevents smoking in most public places of business or accommodation (except casinos). The Act is civil in nature and will be enforced in municipal court as a penalty enforcement action. Complaints under the Act will be brought by either the State Department of Health and Senior Services or by local health departments. Liability for violations falls upon both the smoker and the person in control of the premises where the smoking occurred. Fines (technically, penalties) are set at $250 for a first offense, $500 for a second offense and $1000 for third or subsequent offenses. The text of the bill passed today by the Assembly follows:

SENATE, No. 1926

STATE OF NEW JERSEY

211th LEGISLATURE

INTRODUCED OCTOBER 14, 2004

Sponsored by:

Senator JOHN H. ADLER

District 6 (Camden)

Senator THOMAS H. KEAN, JR.

District 21 (Essex, Morris, Somerset and Union)

Co-Sponsored by:

Senators Vitale, Karcher, Scutari, Turner, Lesniak, Palaia and Weinberg

SYNOPSIS

“New Jersey Smoke-Free Air Act”; prohibits smoking in indoor public places and workplaces.

CURRENT VERSION OF TEXT

As amended by the Senate on December 8, 2005.

(Sponsorship Updated As Of: 12/9/2005)

An Act concerning smoking in indoor public places and workplaces and revising parts of statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the “New Jersey Smoke-Free Air Act.”

2. The Legislature finds and declares that: tobacco is the leading cause of preventable disease and death in the State and the nation, and tobacco smoke constitutes a substantial health hazard to the nonsmoking majority of the public; the separation of smoking and nonsmoking areas in indoor public places and workplaces does not eliminate the hazard to nonsmokers if these areas share a common ventilation system; and, therefore, subject to certain specified exceptions, it is clearly in the public interest to prohibit smoking in all enclosed indoor places of public access and workplaces.

3. As used in this act:

“Bar” means a business establishment or any portion of a nonprofit entity, which is devoted to the selling and serving of alcoholic beverages for consumption by the public, guests, patrons or members on the premises and in which the serving of food, if served at all, is only incidental to the sale or consumption of such beverages.

“Cigar bar” means any bar, or area within a bar, designated specifically for the smoking of tobacco products, purchased on the premises or elsewhere; except that a cigar bar that is in an area within a bar shall be an area enclosed by solid walls or windows, a ceiling and a solid door and equipped with a ventilation system which is separately exhausted from the nonsmoking areas of the bar so that air from the smoking area is not recirculated to the nonsmoking areas and smoke is not backstreamed into the nonsmoking areas.

“Cigar lounge” means any establishment, or area within an establishment, designated specifically for the smoking of tobacco products, purchased on the premises or elsewhere; except that a cigar lounge that is in an area within an establishment shall be an area enclosed by solid walls or windows, a ceiling and a solid door and equipped with a ventilation system which is separately exhausted from the nonsmoking areas of the establishment so that air from the smoking area is not recirculated to the nonsmoking areas and smoke is not backstreamed into the nonsmoking areas.

“Indoor public place” means a structurally enclosed place of business, commerce or other service-related activity, whether publicly or privately owned or operated on a for-profit or nonprofit basis, which is generally accessible to the public, including, but not limited to: a commercial or other office building; office or building owned, leased or rented by the State or by a county or municipal government; public and nonpublic elementary or secondary school building; board of education building; theater or concert hall; public library; museum or art gallery; bar; restaurant or other establishment where the principal business is the sale of food for consumption on the premises, including the bar area of the establishment; garage or parking facility; any public conveyance operated on land or water, or in the air, and passenger waiting rooms and platform areas in any stations or terminals thereof; health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.); patient waiting room of the office of a health care provider licensed pursuant to Title 45 of the Revised Statutes; child care center licensed pursuant to P.L.1983, c.492 (C.30:5B-1 et seq.); race track facility; facility used for the holding of sporting events; ambulatory recreational facility; shopping mall or retail store; hotel, motel or other lodging establishment; apartment building lobby or other public area in an otherwise private building; or a passenger elevator in a building other than a single-family dwelling.

“Person having control of an indoor public place or workplace” means the owner or operator of a commercial or other office building or other indoor public place from whom a workplace or space within the building or indoor public place is leased.

“Smoking” means the burning of, inhaling from, exhaling the smoke from, or the possession of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco or any other matter that can be smoked.

“Tobacco retail establishment” means an establishment in which at least 51% of retail business is the sale of tobacco products and accessories, and in which the sale of other products is merely incidental.

“Workplace” means a structurally enclosed location or portion thereof at which a person performs any type of service or labor.

4. a. Smoking is prohibited in an indoor public place or workplace, except as otherwise provided in this act.

b. Smoking is prohibited in any area of any building of, or on the grounds of, any public or nonpublic elementary or secondary school, regardless of whether the area is an indoor public place or is outdoors.

5. The provisions of this act shall not apply to:

a. any cigar bar or cigar lounge that, in the calendar year ending December 31, 2004, generated 15% or more of its total annual gross income from the on-site sale of tobacco products and the rental of on-site humidors, not including any sales from vending machines, and is registered with the local board of health in the municipality in which the bar or lounge is located. The registration shall remain in effect for one year and shall be renewable only if: (1) in the preceding calendar year, the cigar bar or lounge generated 15% or more if its total annual gross income from the on-site sale of tobacco products and the rental of on-site humidors, and (2) the cigar bar or cigar lounge has not expanded its size or changed its location since December 31, 2004;

b. any tobacco retail establishment, or any area the tobacco retail establishment provides for the purposes of smoking;

c. any tobacco business when the testing of a cigar or pipe tobacco by heating, burning or smoking is a necessary and integral part of the process of making, manufacturing, importing or distributing cigars or pipe tobacco;

d. private homes, private residences and private automobiles; and

e. the area within the perimeter of:

(1) any casino as defined in section 6 of P.L.1977, c.110 (C.5:12-6) approved by the Casino Control Commission that contains at least 150 stand-alone slot machines, 10 table games, or some combination thereof approved by the commission, which machines and games are available to the public for wagering; and

(2) any casino simulcasting facility approved by the Casino Control Commission pursuant to section 4 of P.L.1992, c.19 (C.5:12-194) that contains a simulcast counter and dedicated seating for at least 50 simulcast patrons or a simulcast operation and at least 10 table games, which simulcast facilities and games are available to the public for wagering.

6. a. The person having control of a hotel, motel or other lodging establishment may permit smoking in up to 20% of its guest rooms.

b. Nothing in this section shall be construed to require a hotel, motel or other lodging establishment to provide a nonsmoking room to a guest if all the designated nonsmoking rooms are occupied.

7. a. The person having control of an indoor public place or workplace shall place in every public entrance to the indoor public place or workplace a sign, which shall be located so as to be clearly visible to the public and shall contain letters or a symbol which contrast in color with the sign, indicating that smoking is prohibited therein, except in such designated areas as provided pursuant to this act. The sign shall also indicate that violators are subject to a fine. The person having control of the indoor public place or workplace shall post a sign stating “Smoking Permitted” in letters at least one inch in height or marked by the international symbol for “Smoking Permitted” in those areas where smoking is permitted.

b. The provisions of this section shall not be construed to prevent a lessee of the workplace, or space within the building or indoor public place, from enforcing the smoking restrictions imposed by the owner or operator of a commercial or other office building or other indoor public place.

8. a. The person having control of an indoor public place or workplace shall order any person smoking in violation of this act to comply with the provisions of this act. A person, after being so ordered, who smokes in violation of this act is subject to a fine of not less than $250 for the first offense, $500 for the second offense and $1,000 for each subsequent offense. A penalty shall be recovered in accordance with the provisions of subsections c. and d. of this section.

b. The Department of Health and Senior Services or the local board of health or the board, body or officers exercising the functions of the local board of health according to law, upon written complaint or having reason to suspect that an indoor public place or workplace covered by the provisions of this act is or may be in violation of the provisions of this act, shall, by written notification, advise the person having control of the place accordingly and order appropriate action to be taken. A person receiving that notice who fails or refuses to comply with the order is subject to a fine of not less than $250 for the first offense, $500 for the second offense and $1,000 for each subsequent offense. In addition to the penalty provided herein, the court may order immediate compliance with the provisions of this act. c. A penalty recovered under the provisions of this act shall be recovered by and in the name of the Commissioner of Health and Senior Services or by and in the name of the local board of health. When the plaintiff is the Commissioner of Health and Senior Services, the penalty recovered shall be paid by the commissioner into the treasury of the State. When the plaintiff is a local board of health, the penalty recovered shall be paid by the local board into the treasury of the municipality where the violation occurred.

d. A municipal court shall have jurisdiction over proceedings to enforce and collect any penalty imposed because of a violation of this act if the violation has occurred within the territorial jurisdiction of the court. The proceedings shall be summary and in accordance with the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.). Process shall be in the nature of a summons or warrant and shall issue only at the suit of the Commissioner of Health and Senior Services, or the local board of health, as the case may be, as plaintiff.

e. The penalties provided in subsections a. and b. of this section shall be the only civil remedy for a violation of this act, and there shall be no private right of action against a party for failure to comply with the provisions of this act.

9. The provisions of this act shall supersede any other statute, municipal ordinance and rule or regulation adopted pursuant to law concerning smoking in an indoor public place or workplace, except where smoking is prohibited by municipal ordinance under authority of R.S.40:48-1 or 40:48-2, or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire or protecting public health, and except for those provisions of a municipal ordinance which provide restrictions on or prohibitions against smoking equivalent to, or greater than, those provided under this act.

10. The Commissioner of Health and Senior Services, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to effectuate the purposes of this act.

11. The following are repealed:

P.L.1981, c.318 (C.26:3D-1 et seq.);

P.L.1981, c.319 (C.26:3D-7 et seq.);

P.L.1981, c.320 (C.26:3D-15 et seq.);

P.L.1985, c.184 (C.26:3D-23 et seq.);

P.L.1985, c.186 (C.26:3D-32 et seq.);

P.L.1985, c.318 (C.26:3D-38 et seq.);

P.L.1985, c.381 (C.26:3D-46 et seq.);

P.L.1985, c.185 (C.26:3E-7 et seq.); and

P.L.1998, c.35. (C.30:5B-5.3).

12. This act shall take effect on the 90th day after enactment

Category: Muni-Mail Archive

Maximum Fine for Ordinance Violations Increased to $2000

Earlier today, the acting-Governor signed into law an amendment to NJSA 40:49-5 and NJSA 40:69A-29 that increases the maximum fine that can be imposed for an ordinance violation from $1250 to $2000. The new maximum fine goes into effect today.

Under the amended statutes, when a municipality seeks to impose a fine in excess of $1250 upon a property owner as a result of a housing or zoning violation, the owner will be entitled to a 30-day period to cure or abate the violation. Such an owner is also entitled to a judicial hearing regarding the violation. The court is authorized to impose a fine in excess of $1250 if the court determines that the violation was not cured or substantially abated. The text of the amended version of NJSA 40:49-5 follows, along with the legislative statement that accompanies the amendment.

40:49-5. The governing body may prescribe penalties for the violation of ordinances it may have authority to pass, by one or more of the following: imprisonment in the county jail or in any place provided by the municipality for the detention of prisoners, for any term not exceeding 90 days; or by a fine not exceeding $2,000; or by a period of community service not exceeding 90 days.

The governing body may prescribe that for the violation of any particular ordinance at least a minimum penalty shall be imposed which shall consist of a fine which may be fixed at an amount not exceeding $100.

The governing body may prescribe that for the violation of an ordinance pertaining to unlawful solid waste disposal at least a minimum penalty shall be imposed which shall consist of a fine which may be fixed at an amount not exceeding $2,500 or a maximum penalty by a fine not exceeding $10,000.

The court before which any person is convicted of violating any ordinance of a municipality shall have power to impose any fine, term of imprisonment, or period of community service not less than the minimum and not exceeding the maximum fixed in such ordinance.

Any person who is convicted of violating an ordinance within one year of the date of a previous violation of the same ordinance and who was fined for the previous violation, shall be sentenced by a court to an additional fine as a repeat offender. The additional fine imposed by the court upon a person for a repeated offense shall not be less than the minimum or exceed the maximum fine fixed for a violation of the ordinance, but shall be calculated separately from the fine imposed for the violation of the ordinance.

Any municipality which chooses not to impose an additional fine upon a person for a repeated violation of any municipal ordinance may waive the additional fine by ordinance or resolution.

Any person convicted of the violation of any ordinance may, in the discretion of the court by which he was convicted, and in default of the payment of any fine imposed therefor, be imprisoned in the county jail or place of detention provided by the municipality, for any term not exceeding 90 days, or be required to perform community service for a period not exceeding 90 days.

Any municipality that chooses to impose a fine in an amount greater than $1,250 upon an owner for violations of housing or zoning codes shall provide a 30-day period in which the owner shall be afforded the opportunity to cure or abate the condition and shall also be afforded an opportunity for a hearing before a court of competent jurisdiction for an independent determination concerning the violation. Subsequent to the expiration of the 30-day period, a fine greater than $1,250 may be imposed if a court has not determined otherwise or, upon reinspection of the property, it is determined that the abatement has not been substantially completed.

Statement

The Senate Community and Urban Affairs Committee reports favorably Assembly Bill No. 3732 (1R).

This bill would amend the laws governing municipal fines to increase the maximum fine that may be imposed for the first violation of a municipal ordinance from $1,250 to $2,000. The maximum fine was last changed in 2001, when it was increased from $1,000 to $1,250.

Under the bill, prior to imposing a fine in an amount greater than $1,250 upon an owner for violations of housing or zoning codes a municipality would be required to provide a 30-day period in which the owner would be afforded: 1) an opportunity to cure or abate the condition and 2) an opportunity for a judicial hearing for an independent determination concerning the violation. Once the 30-day period has run, a municipality could impose a fine greater than $1,250 if the abatement has not been substantially completed unless a court has determined otherwise

Category: Muni-Mail Archive

Plea Entry Must Include Property Indigency Determination – State v. Soul (UNP)

State v. Soul is an Appellate Division UNPUBLISHED decision where a pro se defendant entered a plea of guilty to a drunk driving charge. Although the judge conducted a prolonged voir dire to ascertain that the plea was voluntary and knowing, the judge assumed lack of indigency. The Appellate Division allowed the defendant to withdraw her plea of guilty because the judge failed to properly determine indigency and explain the right to receive appointed counsel.

Download a copy of State v. Soul, an UNPUBLISHED decision.

Category: Muni-Mail Archive

Search Incident to Arrest for Minor Warrant Authorized State v. Ciasulli (UNP)

In this morning’s UNPUBLISHED Appellate Division holding in State v. Ciasulli, the Court ruled that a search of the defendant’s person incident to a valid arrest is authorized under New Jersey law due to issues of officer safety. This rule of law applies even if the underlying reason for the arrest is an FTA bench warrant issued for a minor municipal court violation.

Download a copy of the UNPUBLISHED decision in State v. Ciasulli

Category: Muni-Mail Archive

DWI – Operating a Tractor on Private Property – State v. Elston (UNP)

In today’s UNPUBLISHED Appellate Division opinion of State v. Elston, the defendant was charged with DWI as a result of a trooper witnessing his operation of a tractor on private property. The defendant refused to submit to a breath test and was convicted (4th offense) upon observations.

Note that the refusal charge was apparently dropped at the trial stage since the operation of a motor vehicle did not occur on a public highway. Also note the discussion of proofs required in an observation case and the proper role for a reviewing court at both the Law Division and Appellate Division levels.

Download a copy of the UNPUBLISHED opinion in State v. Elston

Category: Muni-Mail Archive

Failure to File Storm Certification Requires Reversal – State v. Kuzmics (UNP)

This morning’s UNPUBLISHED Appellate Division in State v. Kuzmics reaffirms the rule of law announced last year in State v. Valentine, 374 N.J. Super. 292 (App. Div. 2005) to the effect that the failure on the part of a private prosecutor to file a Storm application (State v. Storm, 141 N.J. 245 (1995)) with the municipal court prior to trial will result in a reversal of any conviction obtained in the case.

Download a copy of this UNPUBLISHED decision in State v. Kuzmics

Category: Muni-Mail Archive