Monthly Archives: March 2007

Judge Issued Search Warrant for former Client – Evidence Admissible – State v. McCann

In today’s Appellate Division holding in State v. McCann, a municipal court judge issued a search warrant which targeted the property of a former, long-term client. The resulting search yielded evidence of criminal activity. The defendant sought to challenge the validity of the search warrant in that it had not been granted by a “neutral and detached magistrate”, but rather by a judge with whom he had enjoyed a professional relationship for many years.

The Appellate Division declined to order suppression of the evidence in this case. The Court ruled that although a conflict existed in this case from a subjective viewpoint, objectively there was abundant evidence in the warrant application to support a finding of probable cause.

The Court went on to establish a new rule of procedure which will have prospective application only. In the future, if a defendant can provide a particularized and credible assertion of facts that objectively suggest an appearance of partiality based upon a prior relationship with the issuing judge, the search warrant will be invalidated. The same result will apply if the defendant can show he would have been entitled to a recusal by the judge based upon the criteria under Rule 1:12-1.

Download a copy of State v. McCann.

Category: Muni-Mail Archive

Defense must put State on Notice in DWI Blood Cases

This morning’s Appellate Division decision in State v. Kent represents an attempt by the Court to implement the requirements of the Confrontation Clause as construed by the Supreme Court in Crawford v. Washington in a manner that recognizes the practical realities of DWI trials in municipal court. Kent is a DWI blood case. In its ruling today, the Appellate Division affirmed its previous rulings in State v. Berezansky and State v. Renshaw to the effect that a defendant has the right to personally confront the lab tech and the person who drew the blood sample at trial. However, the Court was also troubled by the practical impact that such required testimony will have on lab techs, nurses and other people involved in the system.

In noting the possibility of potential hardship, the Court announced that it disfavors the pro forma insistence that such witnesses appear at DWI trials to vouch for the contents of their reports if there are no bona fide issues about them. Accordingly, the Court ruled that defense attorneys who seek to require live testimony at trial of such witness must put the prosecutor on notice by way of a demand for such testimony within the time requirements established in NJSA 2C:35-19. A failure by the defense to provide such notice will be deemed a waiver. The Court also implied that under Rule 1:4-8 and NJRE 611, the State may seek to avoid the appearance of these witnesses in blood cases by asserting that no legitimate factual issues exist.

Finally, the Court suggested that in order to avoid hardship to the witnesses, the municipal court may want to use remote video conferences or depositions taken on a de bene esse basis.

Download a copy of State v. Kent.

Category: Muni-Mail Archive

Crawford Decision Not Retro-Active for PCR Applications – Whorton v. Bockting

On March 8, 2004, the United States Supreme Court ruled in Crawford v. Washington, 541 US 36 (2004) that testimonial statements made by witnesses who are absent from trial are admissible only where the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the witness.

In this morning’s decision by the United States Supreme Court in Whorton v. Bockting, the Justices held that the Crawford decision does not apply retro-actively to cases on federal collateral review (the New Jersey equivalent of post-conviction relief).

This decision is of immense importance to municipal court practitioners since several recent rulings by the Appellate Division in drunk driving cases have fundamentally changed the procedures that required to prove intoxication on the basis of Crawford-related issues. (e.g. State v. Berezansky, 386 N.J. Super. 84 (App. Div. 2006) (Laboratory technician must appear to testify upon defense objection to documentary lab results); State v. Renshaw, ___ N.J. Super ___ (App. Div. 2007) (Person who extracted blood samples from defendant must testify as condition of proving sample was taken in a medically acceptable manner, abrogating NJSA 2A:62A-11).

Today’s United States Supreme Court holding may limit or prevent consideration of Crawford issues in post-conviction relief applications under Rule 7:10-2 for convictions occurring prior to the new rule of law announced in Crawford.

Download a copy of Whorton v. Bockting.

Category: Muni-Mail Archive