Monthly Archives: October 2007

AOC Establishes Procedures for Charges Involving Illegal Aliens – Directive 11-07

Late yesterday, the Administrative Director of the Courts released Directive 11-07 dealing with the procedures to be utilized by the police and the courts when a person suspected of being in the United States illegally has been charged with an indictable offense or drunk driving. This directive was issued in response to Attorney General Law Enforcement Directive 2007-003, which was in turn promulgated in response to execution-style, multiple homicides in Newark earlier this year.

Under the AOC Directive, law enforcement officials will provide the courts with stickers to be affixed to criminal complaints and drunk driving tickets. The stickers will relate to the court the reason for the officer’s belief that the defendant is not legally in the United States. The judge or judicial officer who sets initial bail may take this information into consideration, except for those cases involving drunk driving which must always be prepared on a summons.

Download a copy of Directive 11-07 with all sample forms.

Category: Muni-Mail Archive

Appellate Division Stays its Own Decision in Refusal Case – State v. Spell

In State v. Spell, 395 N.J. Super. 337 (App. Div. 2007) the Court required that, effective October 1, 2007, New Jersey police agencies read the second portion of the standard statement known as paragraph 36 whenever a DWI defendant initially declines to submit to a breath test. Following the Court’s decision, the Office of the Attorney General moved for a stay in the ruling pending its attempt to seek a review of the holding by the Supreme Court. The Appellate Division has now granted the State’s request for a stay, thus neutralizing, for the moment, the holding in the Spell case.

Download a copy of the Stay Order.

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New Plea by Mail Form Released by AOC

On September 1, 2007, the Supreme Court promulgated amendments to the Part VII Rules of Court. Two of these Rules, R 7:12-3 and R 7:6-3 now permit pleas of guilty by mail in many instances for both traffic/parking offenses and criminal matters in municipal court such as disorderly persons’ offenses and ordinance violations. A person may also enter a plea of not guilty and submit a defense to most traffic and parking offenses that do not require a suspension of driving privileges upon a finding of guilty.

In conjunction with the new Rules, the Administrative Office of the Courts has released the form that must be used in these “plea by mail” cases.

Download a copy of the new form.

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Changes to Driving on the Revoked List Signed into Law – NJSA 3:3-40

The governor has signed into law a series of amendments to the driving on the revoked list statute, NJSA 39:3-40. Among the changes to the statute are the following:
# Clarifies that a second offender must serve at least one day in jail;
# Clarifies that the penalties required to be imposed when a person drives on the revoked list as a result of a suspension imposed for drunk driving, driving without insurance and other specific causes are in addition to the standard penalties included in the law. This amendment conforms the statute to Judge King’s decision in State v. Wrotny, 221 N.J. Super. 226 (App. Div. 1987) and legislatively overrules the Law Division decision in State v. Rought, 221 N.J. Super. 42 (Law Div. 1987);
# Creates a new penalty of a maximum $100 fine for people who are on the revoked list as a result of falling behind with a time payment order, provided the defendant becomes current on the payment schedule that triggered the license suspension. The statute is unclear as to whether the concept of “time payment order” is limited to fines and other court imposed sanctions or also includes past-due child support;
# Continues the maximum $100 fine for defendants who were suspended for parking tickets and who can demonstrate in court that all the parking tickets that caused the suspension have been paid.
# Makes technical changes to reflect the creation of the Motor Vehicle Commission in place of the former Division of Motor Vehicles.

Certain ambiguities remain under the statute, including the question as to whether the maximum $100 fine mentioned above is the sole penalty in these cases or simply a cap on the fine with all the other normal sanctions and other sentencing enhancements still required to be imposed.

Category: Muni-Mail Archive

Guidelines to Avoid D/L Loss in Drug Cases – State v. Bendix

In the case of State v. Bendix, the Appellate Division construes the hardship driver’s license provision in N.J.S.A. 2C:35-16. Under that provision, a judge who sentences a defendant who has been convicted of one of the drug offenses in Chapters 35 or 36 of the Code of Criminal Justice may forego imposing a suspension of driving privileges in cases involving hardship. In Bendix, the Appellate Division set forth guidelines for the exercise of judicial discretion when considering these types of hardship applications. Among other factors for a sentencing judge to take into consideration are lack of public transportation in the area where the defendant resides and potential loss of employment that would accompany a loss of driving privileges. The Court also ruled that the hardship exception is entitled to retroactive application.

The decision State v. Bendix is pending final publication approval from the Court.

Superior Court of New Jersey,
Appellate Division.
STATE of New Jersey, Plaintiff-Respondent,
v.
Jeffrey BENDIX, Defendant-Appellant.
Argued Aug. 7, 2007.
Decided Aug. 14, 2007.

SYNOPSIS

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 05-10-004071-I.
George Daggett argued the cause for appellant (Daggett, Kraemer, Eliades, Kovach & Ursin, attorneys; Gary A. Kraemer, on the brief).

Thomas J. Reed, Assistant Prosecutor, argued the cause for respondent (David J. Weaver, Sussex County Prosecutor, attorney; Mr. Reed, of counsel and on the brief).

Before Judges S.L. REISNER and LYONS.

PER CURIAM.
*1 Defendant Jeffrey Bendix pled guilty to two disorderly persons offenses, possession of drug paraphernalia, N.J.S.A. 2C:36-2, and failure to turn over a controlled dangerous substance, N.J.S.A . 2C:35-10b. The only portion of his sentence at issue on this appeal is a six-month suspension of his driving privileges.

I

Pursuant to a plea agreement, defendant admitted that on April 24, 2005, he had ingested some cocaine in the bathroom of his gas station, he possessed trace amounts of cocaine in three little baggies which he failed to turn over to the police when they arrived, and he possessed “drug paraphernalia” in the form of the wrappers holding the cocaine and a credit card from which he was ingesting the drug. Defendant had no prior criminal history, beyond a conditional discharge in 1994, and he had a clean driving record since at least 2000. Defendant’s possible license suspension was referenced in the plea agreement as “to be discussed.” At the plea hearing defense counsel indicated that this notation was due to “the new statute” on the suspension issue, referring to the hardship exception set forth in N.J.S.A. 2C:35-16, adopted in 2006.

At the plea hearing on June 29, 2006, defense counsel elicited no formal testimony from his client concerning the need to retain his driving privileges. However, defendant was sworn and, in the course of the hearing, he did provide some testimony to the judge concerning his circumstances. Initially defense counsel made a series of representations to the judge about his client’s need to keep his license in order to run his garage business. Defendant candidly corrected one of his counsel’s representations concerning defendant’s alleged need to drive garage customers home because the garage did not have “loaner car [s].” However, he confirmed his counsel’s representation that losing his license would affect defendant’s business. Defendant himself told the judge that his business would be affected by the loss of his license, because “[y]ou can’t become a State inspector unless you’re a licensed New Jersey driver” and he explained that both of the employees whom he had trained to do the inspections, in anticipation of possibly losing his license, had become disabled or had quit. After considering defendant’s situation, and acknowledging the hardships that loss of driving privileges generally posed in rural Sussex County, the judge postponed sentencing to give defendant more time to adjust his business to accommodate the possible loss of his license, and to further consider whether the statutory amendment should apply retroactively.

At a second hearing on August 4, 2006, defendant indicated that he lived fifteen miles from his garage business. At this hearing defendant also stated that he needed to be able to road test the cars that he or his mechanics had repaired. He indicated that his business reputation in the community was based on his personal expertise in repairing cars and that road testing the cars himself was part of the service.

*2 At the initial hearing, the trial judge expressed great concern that if he gave defendant a hardship exception because of the difficulty of getting to work without a car in rural Sussex County, he would have to grant an exception to many other defendants. In later denying the application, he noted that he would look at the matter differently if he believed that loss of driving privileges would cause defendant to lose his garage business. He reasoned that defendant could direct his employees to do any needed driving in the business. He admitted that “[defendant’s situation] is different because of the owner/operator status” but indicated that he had “the sense that another licensed driver can do much of what we’re talking about.” However, while the judge imposed the license suspension, he stayed the suspension pending appeal because “it’s a close enough call, and its consequences can be serious. It could impact the business that employs a number of people.” The judge did not directly address the legal issue as to whether the statute applied retroactively, but his decision assumed that it did.

II

On this appeal, defendant contends that the hardship exception in N.J.S.A. 2C:35-16 should be applied retroactively, and that the trial court erred in denying defendant the benefit of the exception. The statute, which mandates loss of driving privileges upon conviction of certain offenses including those involved in this case, was amended effective January 12, 2006, to provide that suspension shall be 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.

[ N.J.S.A. 2C:35-16a]

While the State contended in the trial court that the statute should not apply retroactively, the State’s appellate brief does not address the issue and we deem the State to have thus conceded the point. Moreover, since the legislation is clearly ameliorative in nature, retroactive application is appropriate. See Kendall v. Snedeker, 219 N.J.Super. 283, 286, 530 A.2d 334 (App.Div.1987).

Having reviewed the record, we conclude the trial judge took too restrictive a view of his discretion to grant a hardship exception. He first noted that in rural Sussex County, where public transportation is minimal or non-existent, many defendants might be able to invoke the hardship exception and that the exception might “swallow the rule.” But it appears from the legislative history of the amendment, adopted in 2006, that lack of public transportation and its potential impact on defendants’ employment was one of the problems the Legislature had in mind in creating the hardship exception. See Senate Judiciary Committee, Statement to Senate Bill No. 2517 (December 12, 2005) [adopted as N.J.S.A. 2C:35-16].FN1 Consequently, we conclude the judge was unduly concerned with the potential number of defendants who might qualify for the exception.

*3 Moreover, while the record was somewhat sparse we note defendant’s testimony that he needed a driver’s license to operate a state-licensed inspection facility and that he needed to road test vehicles as part of his job. The judge’s discomfort with his determination to suspend defendant’s license is evident from the record, and may have stemmed from his recognition of the often-counterproductive consequences of license suspensions and a sense that his discretion was narrower than he would have wished. Our view of the amendment is that it was intended to address situations in which a defendant would lose employment or incur other “extreme hardship” by virtue of license suspension. Defendant, who had a clean driving record since at least 2000 and committed offenses not involving unsafe driving, may be a likely candidate for an exception, but only on a properly-created record.

In that connection, we also note with disapproval the informality with which defense counsel presented a large part of the application, placing representations on the record rather than presenting testimony from his client. In the interests of justice we conclude that the most appropriate disposition is to remand this matter to the trial court for a rehearing at which defendant’s application for a hardship exception shall be presented through his testimony and any rebuttal shall likewise be presented through witness testimony rather than representations by the prosecutor. In deciding the matter, the trial court shall apply the principles we have articulated in this opinion concerning the hardship exception. The license suspension is vacated pending rehearing. We do not retain jurisdiction.

Remanded.
FN1. The original statutory provision requiring license suspension stemmed from a federal law, 23 U.S.C.A. § 159, which conditioned states’ receipt of certain federal funds on adoption of legislation mandating license suspension for drug offenders. The 2006 amendment corresponded to a provision of the federal law allowing states to create a hardship exception. See ibid. In comments supporting the legislation, the New Jersey Commission to Review Criminal Sentencing noted the counterproductive impact of license suspension on efforts to rehabilitate drug offenders and reported that the bill also had the overwhelming support of the New Jersey Association of County Prosecutors. Letter from Hon. Barnett E. Hoffman, Chair, New Jersey Commission to Review Criminal Sentencing, to Senator John H. Adler (Apr. 12, 2005).
N.J.Super.A.D.,2007.
State v. Bendix
— A.2d —-, 2007 WL 2302366 (N.J.Super.A.D.)

Category: Muni-Mail Archive

Judge’s Failure to Advise Appeal Rights Extends Filing Time – State v. Johnson

This morning’s decision in State v. Johnson stands for the proposition that the failure of a Superior Court judge to advise a defendant of his appeal rights following the imposition of sentence indefinitely extends the defendant’s right to appeal. In Johnson, the defendant pled guilty to indictable drug offenses and was given a probationary sentence. The sentencing judge never informed the defendant of his appeal rights as required by the Rules of Court. Within a matter of a few months, the defendant violated his conditions of probation and was re-sentenced by the judge to jail. Thereafter, the defendant filed a notice of appeal some 11 months after sentence had been imposed. The Court ruled that the failure of the sentencing judge to have advised the defendant as to his right to file an appeal within 45 days automatically extended the time to appeal indefinitely.

Download a copy of State v. Johnson.

Category: Muni-Mail Archive

Most Dead People Are Not Helpless – State v. Moon

Under N.J.S.A. 2C:12-1.2, it is a crime of the third degree for a person to cause bodily injury to another and then leave the scene of the injury knowing that the injured person is physically helpless, mentally incapacitated or otherwise unable to care for himself. In today’s Appellate Division decision in State v. Moon, the Court was called upon to decide whether this statute applies when the bodily injury results in the death of the victim. In Moon, the defendant shot the victim with a pistol in the head causing immediate death. The defendant moved the body and then abandoned it in the street.

The Appellate Division ruled that the purpose of the statute is to prevent additional harm to living victims of bodily injuries. Accordingly, the concepts of helplessness, mental incapacity and an inability to care for one’s self do not apply to dead people. Accordingly, the defendant was not guilty of endangering an injured person.

Download a copy of State v. Moon.

Category: Muni-Mail Archive

New Law Requires Residents to Register Their Cars in N.J.

The governor has signed into law an amendment to NJSA 39:3-17.1 which requires that a person who becomes a resident of New Jersey and was permitted to operate a motor vehicle under a license granted from another State must register any vehicles owned by him that he operates on the highways of our State within 60 days. The statute as amended provides for fines on first and second offenses and mandatory impoundment for third or subsequent offenses. Presumably, the third offender impoundment would occur following a conviction for the offense in municipal court.

The amendment was enacted to put a stop to the problem created when people from other jurisdictions come to New Jersey and continue to operate their vehicles which are not registered in New Jersey.

A copy of the amended statute as underlined follows:

1. Section 1 of P.L.1955, c.53 (C.39:3-17.1) is amended to read as follows:

1. a. Except as provided in section 9 of P.L.1990, c.103 (C.39:3-10.17), any person who becomes a resident of this State and who immediately prior thereto was authorized to operate and drive a motor vehicle or motor vehicles in this State as a nonresident pursuant to R.S.39:3-15 and R.S.39:3-17, shall not lose his right to so operate and drive such motor vehicle or motor vehicles by becoming a resident of this State, but such right shall continue to be in full force and effect for 60 days, unless a longer period of reciprocity is otherwise provided by law, after the establishment of his residence in this State in the same manner and to the same extent as though he were a nonresident. The chief administrator shall not issue a driver’s license to a person who is entitled to operate a motor vehicle in this State under a reciprocity privilege granted by any law.

b. Any person who becomes a resident of this State and who immediately prior thereto was authorized to operate and drive a motor vehicle or motor vehicles in this State as a nonresident pursuant to R.S.39:3-15 and R.S.39:3-17, shall register any vehicle operated on the public highways of this State within 60 days of so becoming a resident of New Jersey, pursuant to R.S.39:3-4 or section 2 of P.L.1968, c.439 (C.39:3-8.1).

c. Any person who violates subsection b. of this section is subject to a fine of not more than $250 for a first offense and not more than $500 for a second or subsequent offense.

d. Any person who violates subsection b. of this section a third or subsequent time shall have the vehicle impounded by the law enforcing agency for not less than 96 hours. The vehicle shall only be released to the registered owner upon proof of registration and insurance and payment of all reasonable towing and storage fees.

If the owner of an impounded vehicle fails to claim the impounded vehicle by midnight of the 30th day following the day on which the vehicle was impounded, that vehicle may be sold at auction. Notice of the sale shall be given by the impounding entity by certified mail to the owner of the vehicle, if the owner’s name and address are known, and to the lienholder, if the lienholder’s name and address are known, and by publication in a form prescribed by the chief administrator by one insertion, at least five days before the date of the sale, in one or more newspapers published in this State and circulating in the municipality in which the vehicle is impounded.

At any time prior to the sale of an impounded vehicle, the owner or other person entitled to the vehicle may reclaim possession upon showing proof of registration and insurance and paying all costs associated with the impoundment, and reasonable towing and storage fees.

The owner-lessor of an impounded vehicle shall be entitled to reclaim possession without payment or proof of insurance and the lessee shall be liable for all outstanding costs associated with the impoundment, towing, and storage of the vehicle.

e. Any proceeds obtained from the sale of a vehicle at public auction pursuant to subsection d. of this section in excess of the amount owed to the impounding entity for the reasonable costs of towing and storage and any other costs associated with the impoundment of the vehicle shall be returned to the owner of that vehicle, if his name and address are known.

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