Monthly Archives: April 2008
In an April 22nd answer filed in response to an Advisory Committee on Judicial Conduct (ACJC) complaint, a judge of the Superior Court acknowledged using profanity in open court, but in an apology, attributed his conduct to an unreasonable provocation by the attorney who was subject to the billingsgate as well as a number of extremely stressful events in his life. Among those events were the death of his daughter, the need to raise her minor children and his recovery from life-threatening surgery. In his answer, the judge also denied the use of profanity in chambers directed to a different member of the bar. In addition to the answer, the judge has also submitted a personal letter of explanation and apology to the ACJC as well as correspondence from his attending physician, all of which are attached to this muni-mail for your review.
The next step in the disciplinary process will be a plenary hearing before the ACJC.
Download a copy of ACJC Answer.
In a decision released earlier today, the United States Supreme Court ruled that although police may conduct searches of criminal suspects incident to a lawful arrest, the lawfulness of an arrest is based exclusively upon the existence of probable cause and not statutory state law. The Justices also held that state restrictions on police powers of arrest do not affect the operations and protections of the Fourth Amendment.
The facts of the case, set forth in Virginia v. Moore, involve an arrest by the police of a motorist who was driving on the revoked list. After arresting the driver, the police conducted a search of his person incident to the arrest. The search yielded distribution levels of controlled dangerous substances. Under Virginia state law, the police should not have arrested the driver, but merely should have given him a summons. As a result, the Virginia Supreme Court affirmed a suppression of the drug evidence seized by the police. The United States Supreme Court reversed this decision today, holding that regardless of state law restrictions or limitations on police arrest powers, when the police have probable cause to effect an arrest for an offense committed in their presence, the Fourth Amendment permits them to make the arrest and conduct a search of the person in order to recover evidence and assure their own safety.
Download a copy of Virginia v. Moore.
This morning, the New Jersey Supreme Court ruled that our State Constitution provides people in New Jersey with a right of privacy related to the subscriber information they provide to their internet service providers. As a result of this privacy interest, state and municipal law enforcement agencies that seek this information must do so in a reasonable manner. This can be lawfully accomplished through the issuance of a grand jury subpoena. Moreover, the target of the grand jury investigation need not be informed that his internet records have been sought and obtained through this method.
In this morning’s case, State v. Reid, the police utilized an improperly issued municipal court subpoena duces tecum in order to obtain subscriber information related to a criminal suspect from the internet service provider, Comcast. The Supreme Court held that this procedure was unconstitutional in that it violated the suspect’s privacy interest in her subscriber information. Accordingly, the evidence obtained must be suppressed and the resulting indictment will probably be dismissed. However, the Court went on to hold that the information sought by the police in this case can still be obtained through the use of a properly issued a grand jury subpoena, which may result in a new indictment for the defendant.
Download a copy of State v. Reid.
In an opinion released this morning, the Appellate Division ruled that the use of a flash bang device in the execution of a “knock & announce” search warrant is unreasonable under the New Jersey Constitution. The Court also ruled that a delay of 20 to 30 seconds between the “knock & announce” and the forcible entry into the residence was unreasonable under the State Constitution.
The facts of the case, captioned State v. Robinson, involve the execution of a search warrant following a lengthy drug investigation. In securing the warrant, the police never revealed to the issuing judge any basis to believe that the police believed they would face extreme danger in serving the warrant. However, when the police went to execute the warrant, they did so in a quasi-military manner, using a force of 13 tactical officers. The squad of officers knocked on the door of the defendant’s residence at 6:30 am, waited 20 to 30 seconds, and then forcibly opened the door and threw in a flash/bang grenade to stun whoever was inside.
The Appellate Division compared this conduct to prior New Jersey case law and found the actions of the police to be unreasonable both with respect to the mode of entry and the use of the grenade.
Download a copy of State v. Robinson.
The Chief Administrator of the Motor Vehicle Commission has announced that the Commission has entered into a partnership with two groups that will offer on-line defensive driving courses to New Jersey drivers. Under New Jersey law, a person who completes a defensive driving course is entitled to a two-point reduction in his penalty point total. The credit can be awarded once every five years following completion of the defensive driving course. Those who successfully complete the course are also entitled to a mandatory, three-year automobile insurance discount.
The providers and their web addresses are:
The American Safety Council – www.safemotorist.com (course fee is $49)
I Drive Safely – www.idrivesafely.com (course fee $50)
Unlike traditional classroom safety courses, the computer-based instruction can be completed over a period of days at the convenience of the student. The computer will keep track of the student’s progress during the course.
Earlier today, the governor signed into law an amendment to the provisions of the stop sign law, njsa 39:4-144 which made certain technical changes to the statute while simultaneously repealing NJSA 39:4-145. NJSA 39:4-145 is a non-point, moving violation that permits the driver of a vehicle stopped in a line of traffic at a stop sign to proceed through the sign without coming to a stop a second time. Under the newly revised version of the law, every vehicle lined up at the stop sign will be required to come to a complete stop within five feet of the nearest crosswalk or stop line in the street and may not proceed without yielding to all traffic that might constitute an immediate hazard.
NJSA 39:4-145 has been used for many years as a non-point option in plea-bargaining stop sign violations under njsa 39:4-144. The amendment and repealer go into effect in 60 days.
The amendment, repealer and assembly statement read as follows:
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. R.S.39:4-144 is amended to read as follows:
39:4-144. No driver of a vehicle or street car shall enter upon or cross an intersecting street marked with a “stop” sign unless [he] the driver has first brought [his] the vehicle or street car to a complete stop at a point within  five feet of the nearest crosswalk or stop line marked upon the pavement at the near side of the intersecting street and shall proceed only after yielding the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard. No driver of a vehicle or street car shall enter upon or cross an intersecting street marked with a “yield right of way” sign without first slowing to a reasonable speed for existing conditions and visibility, stopping if necessary, and the driver shall yield the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard; unless, in either case, [he] the driver is otherwise directed to proceed by a traffic or police officer or traffic control signal [, or as provided in section 39:4-145 of this Title].
(cf: P.L.1958, c.114, s.4)
2. R.S.39:4-145 is repealed.
3. This act shall take effect on the 60th day after enactment, but the chief administrator may take such anticipatory administrative action in advance as shall be necessary for the implementation of the act.
This bill repeals R.S.39:4-145 which allows one or more vehicles entering a stop intersection following directly in line with another vehicle that has come to a complete stop to proceed without again coming to a complete stop before entering the stop intersection. In repealing R.S.39:4-145, the provisions of R.S.39:4-144 would apply.
The provisions of R.S.39:4-144 prohibit a driver from entering upon or crossing an intersecting street marked with a “stop” sign unless the driver has first brought the vehicle to a complete stop at a point within five feet of the nearest crosswalk or stop line marked upon the pavement at the near side of the intersecting street. The driver is permitted to proceed only after yielding the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard.
In an order entered in Superior Court earlier today, the Mercer County Prosecutor’s Office came to a settlement with the owners of Congo the Dog. Under the terms of the agreement, the previous death sentence that had been ordered for Congo in municipal court is to be vacated. This canine controversy followed a purported attack by Congo on a worker who was on his owner’s property. The worker was severely injured and later recovered a significant monetary settlement. Following the attack, the local municipality sought to have Congo declared a vicious and dangerous dog under the “Vicious and Dangerous Dog Act”, NJSA 4:19-22. Following trial in municipal court, the trial judge made a finding that the dog was dangerous, despite defense contentions that the dog was merely following its instinct in protecting its owner from a perceived threat. The judge then ordered the animal to be destroyed, as required under the statute. That portion of the judge’s sentence was stayed pending appeal to the Law Division.
Today’s order will end an emotional controversy that has already resulted in pending legislation to amend provisions of the Vicious and Dangerous Dog Act.
Download a copy of the order entered into in State v. James and an accompanying memorandum of law.