Monthly Archives: July 2007

Reasonable Suspicion Required for Search of Disabled Cars – State v. Elders

In this morning’s opinion in State v. Elders, the New Jersey Supreme Court expanded its previous ruling in State v. Carty, 170 N.J. 632 (2002) to include disabled vehicles as well as those that are fully operational. Five years ago in Carty, the Justices ruled that a request by the police for the consent search of a motor vehicle must be supported by a reasonable and articuable suspicion that contraband or criminal evidence will be found therein. Today’s holding in Elders makes it clear that this require of a reasonable and articuable suspicion also applies to disabled vehicles on the roadway.

In the Elders ruling Supreme Court also rejected the Appellate Division’s fact-finding based upon the panel’s view of a video tape recording of the event on the turnpike. Simply put, the Justices found that it was improper for the Appellate Division to substitute its own judgment on the facts for that of the motion judge, notwithstanding the video. The Supreme Court reaffirmed that the factual findings of the motion judge are entitled to great deference and should not be disturbed unless they are clearly wrong and so wide of the mark as to constitute an injustice.

Finally, the Supreme Court agreed with the motion judge’s assessment that the transaction between the police and the defendants quickly escalated from a purported community caretaking event to an investigative detention. In reality, according to the motion judge, the police did little or nothing to support the argument that their purpose for stopping at the scene where the defendant’s disabled vehicle had come to rest was related to any desire to provide them aid or assistance. Instead, the police quickly began questioning the defendant and the other passengers in an effort to either confirm or dispel their suspicions of criminal activities. Such actions are wholly inconsistent with community caretaking activities by the police which should be completely divorced from gathering evidence of criminal wrongdoing. Beyond that, the Justices agreed that the consent that the police obtained for the search was not based upon a reasonable suspicion but, at best, a hunch.

Download a copy of State v. Elders.

Category: Muni-Mail Archive

Supreme Court Censures Justice Rivera-Soto

By order dated July 20, 2007, the New Jersey Supreme Court has formally censured Associate Justice Roberto Rivera-Soto for having committed numerous violations of the New Jersey Code of Judicial Conduct. The Court rendered its decision based upon unanimous factual findings by the Advisory Committee on Judicial Conduct (ACJC) which were not contested by Justice Rivera-Soto. Moreover, Justice Rivera-Soto waived his right to a hearing before the ACJC and the Supreme Court.

A censure is considered to be a harsher form of judicial discipline that an admonition or a reprimand. Typically, the next level of judicial discipline would entail a suspension from judicial office without pay. Justice Rivera-Soto becomes the third Justice to be subject to discipline by the Supreme Court under the Constitution of 1947. Prior discipline was imposed on Associate Justice Robert Clifford in 1990 (censure as a result of a drunk driving conviction) and the late Chief Justice Robert Wilentz (failure to reside in New Jersey).

Download a copy of the Supreme Court’s disciplinary order.

Category: Muni-Mail Archive

Ticket must be Served within 30 days to be Valid – State v. Buczkowski

This morning’s Appellate Division holding in State v. Buczkowski may bring about certain fundamental changes in current municipal court practice. In Buczkowski, the Appellate Division held that the general statute of limitations for motor vehicle offenses under N.J.S.A. 39:5-3(a) requires that service of process (invariably a summons) upon the defendant must occur within the limitation period provided under the law, which for most traffic offenses is 30 days. In the Buczkowski case, the police issued and filed with the court a reckless driving complaint against the defendant on the 30th day following the commission of the offense. However, the police never served the summons and complaint on the defendant. Rather, they waited 142 days and then mailed process to her. The Appellate Division, in deciding the case, affirmed a dismissal of the charge from the Law Division as being outside the statute of limitations since process was not served on the defendant within 30-days from the date of the offense. The holding in this case will now require that a summons and complaint charging a traffic complaint be both filed with the court and served upon the defendant within the applicable statutory period under N.J.S.A. 39:5-3.

Download a copy of State v. Buczkowski.

Category: Muni-Mail Archive

New Courts Rules Released – DWI School Zone Plea Bargains Permitted

This morning, the New Jersey Supreme Court released the amendments to the Rules of Court that will go into effect on September 1, 2007. Among the changes that affect municipal court practitioners is an
amendment to Guideline 4B which regulates plea bargaining. Under the amended Guideline, a prosecutor may engage in a plea agreement that calls for the dismissal of a DWI school zone charge in exchange for a plea of guilty to the companion DWI charge which arises from the same incident. This type of plea agreement is available only in cases where there has not been an accident and where the school property was not in use at the time of the offense.

Among the many changes to the Rules of Court in Part VII are the following:

  • Plea of Guilty by mail in criminal cases now approved in certain instances (Rule 7:6-3(a))
  • The practice of utilizing private prosecutors has been abolished except in cases involving cross-complaints where the trial judge makes a finding that a potential for conflict exists for the regular municipal prosecutor due to the nature of the charges. (Rule 7:8-7)
  • Time for filing a Motion for a New Trial expanded to 20-days. (Rule 7:10-1)
  • A new requirement in post-conviction relief proceedings that the petitioner supply additional documents related to the underlying conviction and be accountable to explain the unavailability of any required documents (Rule 7:10-2(f)(2)(G))
  • Formalizes the procedures to be utilized when filing a petition for relief from an enhanced custodial term based on a prior un-counseled conviction under State v. Laurick, 120 N.J. 1 (1990). (Rule 7:10-2(g)). The Rule sets venue in the municipality where the prior conviction occurred and
    establishes a 5-year statute of limitations for these applications.
  • Amends the procedures for the use of defenses or pleas of guilty by mail in traffic cases. (Rule 7:12-3)
  • Authorizes judges of the municipal court to stay any portion of a sentence imposed pending further action by the municipal court or the filing of an appeal. (Rule 7:13-2).
  • The following is a list of all of the amendments to the Rules of Court and related appendices effective September 1, 2007.

    1:5-6

    5:7-9 (new)

    1:6-3

    5:7-10 (new)

    1:40-4

    5:9A-1

    1:40-12

    5:9A-2

    1:41-1 (new)

    5:9A-3 (new)

    1:41-2 (new)

    5:12-4

    1:41-3 (new)

    5:12-6 (new)

    1:41-4 (new)

    5:22-2

    1:41-5 (new)

    5:24-2

    1:41-6 (new)

    5:25-3

    2:7-2

    7:6-2

    3:4-3

    7:6-3

    3:6-8

    7:8-1

    3:7-3

    7:8-7

    3:13-3

    7:10-1

    3:21-4

    7:10-2

    3:26-1

    7:12-3

    3:26-4

    7:12-4

    3:28

    7:13-2

    4:43-2

    Appendix to Part VII Rules- Guideline 4

    5:1-2

    Appendix IX-A

    5:2-1

    Appendix IX-F

    5:3-4

    Appendix IX-G

    5:4-2

    5:4-4

    Appendix IX-H

    5:5-2

    Appendix XVI, Part 2

    5:5-4

    Appendix XVII, Part 2

    5:5-10 (new)

    Appendix XXIV

    5:6-5

    Appendix XXVI

    5:6-8 (new)

    5:7-4

    5:7-5

    Category: Muni-Mail Archive

    No Expectation of Privacy in Fields Used for Crops – State v. Marolda

    In today’s holding in State v. Marolda, the Court determined that there is no expectation of privacy in our state for fields that are used for cultivation of crops. In the Marolda case, the State Police conducted airborne surveillance from a low-flying helicopter in an effort to determine if the defendant was growing marijuana. The police were able to identify the growing marijuana from the air and immediately took steps to arrest a person who was removing the substance from the ground. The Court held that the low-level helicopter surveillance did not involve an invasion of any reasonable expectation of privacy within the curtilage of the defendant’s residence.

    Download a copy of State v. Marolda

    Category: Muni-Mail Archive

    Justice Rivera-Soto Misconduct Merits Censure: ACJC

    Earlier this afternoon, the Advisory Committee on Judicial Conduct released a presentment in the judicial disciplinary case involving Justice Rivera-Soto. The Committee found that the Justice had violated several canons of the Code of Judicial Conduct and recommended that he be subject to a censure by the Supreme Court. A censure is the highest level of judicial discipline that the Court will impose that does not involve a suspension from judicial duties or removal from judicial office.

    The New Jersey Supreme Court will consider the recommended factual findings and proposed quantum of discipline from the ACJC. Judicial discipline may only be imposed by the Court.

    Download a copy of the Presentment in this case

    Category: Muni-Mail Archive