Monthly Archives: December 2009

PC to Arrest & PC to Search Address Different Interests – State v. Chippero

[12/29/09 – 10:08 pm] In this morning’s Supreme Court decision in State v. Chippero, the Justices ruled that although each is based upon a finding of probable cause, search warrants and arrest warrants address discrete societal interests. An arrest warrant is intended to protect an individual’s liberty and is predicated upon a finding that there is probable cause to believe that the subject has committed, is committing or is about to commit a criminal offense. By contrast, a search warrant is designed to protect an individual’s right to privacy and is predictable upon a judicial finding that evidence of criminal activity can be located at a particular location at a particular time. Based upon these different interests, it is entirely logical that the police may well be able to demonstrate probable cause to conduct a search of a defendant’s home while at the same time lack probable cause to arrest the same defendant.

Download a copy of the Court discussion in State v. Chippero.

Category: Muni-Mail Archive

Trial Judge Helped Prosecutors Convict Double-Murderer – State v. O’Brien

[12/29/09 – 10:20 am] This morning, the Supreme Court reversed a double-murder conviction based upon the active role the trial judge took in bolstering the testimony of witnesses for the State and while simultaneously expressing disbelief as to the testimony advanced by the defendant and his witnesses. The case explains the limitations imposed on trial judges in the questioning of witnesses from the bench. In this case, in the words of the Supreme Court, the trial judge cast a cloud over the defendant’s trial testimony, sought to impeach the defendant’s expert witness, hammered nails into the defense’s cross-examination while bolstering the State’s witnesses. Moreover, the Supreme Court noted that a defendant on trial in a New Jersey courtroom is entitled to be confronted by just one, single adversary in the person of the prosecutor and should not be subjected to the additional burden of a trial judge who disbelieves his evidence and conveys that impression to the jury.

Download a copy of State v. O’Brien

Category: Muni-Mail Archive

It’s Official – Mandatory CLE Obligation Has Begun – Supreme Court

[12/21/09 – 2:22 pm] The New Jersey Supreme Court has released the following press update:

The New Jersey Supreme Court has adopted Court Rule 1:42, which sets forth requirements for mandatory continuing legal education (MCLE) for New Jersey attorneys, today announced Mark Neary, clerk of the Supreme Court. The new requirements are effective immediately.

In conjunction with the new court rule, the Court has amended its Administrative Determination regarding the continuing legal education requirement. Both the court rule and the administrative determination are the result of recommendations made by the Ad Hoc Committee on Continuing Legal Education. Retired Associate Justice Peter G. Verniero served as chair of the committee, and retired Assignment Judge Arthur N. D’Italia served as vice chair.

Under the new rule, all New Jersey attorneys are required to take 24 hours of continuing legal education every two years, including at least four hours on topics related to ethics or professionalism. MCLE is required for all New Jersey attorneys, including judges, law clerks and in-house counsel. Attorneys will be responsible for verifying that they have met the requirements and a random audit system will help ensure compliance. This is a change from the prior system, where only new attorneys and those seeking designation as certified attorneys in specific areas of practice were required to take coursework beyond law school.

The new court rule also calls for the Supreme Court to create a board on continuing legal education to administer the legal education program in accordance with the new rule. An Order signed by Chief Justice Stuart Rabner names Supreme Court Associate Justice Roberto Rivera-Soto as board chair and retired Superior Court Judge Arthur N. D’Italia as board vice-chair. In accordance with the Rule, the Order also names Judge Glenn A. Grant, acting administrative director, or his designee as a non-voting board member.

Under the new Rule 1:42, the board has the authority to determine the courses and activities that qualify for continuing legal education credit under the program; to designate approved continuing legal education providers and approved courses and programs that shall qualify for continuing legal education credit; to monitor compliance with the program by continuing legal education providers and by attorneys; and to carry out other administrative duties.

Download a copy of Rule 1:42.

Category: Muni-Mail Archive

DWI Plea Withdrawl Based on 4 Slater Factors – State v. Mustaro

[12/14/09 – 4:51 pm] In this morning’s Appellate Division decision in State v. Mustaro, the Appellate Division ruled that a motion by a defendant to withdraw a guilty plea following imposition of sentence in a DWI case must be predicated upon correcting a manifest injustice and should generally conform to the 4 balancing factors established by the Supreme Court in State v. Slater, 198 N.J. 145 (2009). Those factors include:

(1) whether the defendant has asserted a colorable claim of innocence;

(2) the nature and strength of defendant’s reasons for withdrawal;

(3) the existence of a plea bargain; and

(4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.”
In Mustaro, the defendant moved to vacate his post-sentencing plea on the basis that he had been deprived of potentially exculpatory evidence in the form of a police car videotape which would have proved he was not operating his vehicle at the time of his motor vehicle stop. The police had destroyed the videotape as a matter of routine after the defendant’s initial plea of guilty. In analyzing the Slater factors, the Court ruled that the lack of bad faith by the police in destroying the video, coupled with the speculative nature of the defendant’s claim of what was shown the video did not satisfy the test for withdrawal of a guilty plea.

Download a copy of State v. Mustaro.

Category: Muni-Mail Archive

Prosecutor Unprepared, Troopers FTA = Dismissed DWI – State v. Tsetsekas

[12/14/09 – 12:12 pm] In this morning’s Appellate Division holding in State v. Tsetsekas, the Court ruled that a trial delay of 344 days, caused by the repeated unpreparedness of the municipal prosecutor and multiple failures to appear by members of the State Police would require the dismissal of a drunk driving case based upon the failure to grant the defendant a speedy trial. The Court’s ruling includes an up-to-date analysis of the factors judges in New Jersey should use in deciding speedy trial motions in DWI cases and stresses the enhanced responsibilities of prosecutors and police in making sure these case can be tried promptly.

Download a copy of State v. Tsetsekas.

Category: Muni-Mail Archive

DV “Dating Relationship” can include WHORES – J.S. v. J.F.

[12/10/09 11:31 pm] Earlier today, the Appellate Division ruled in a case captioned J.S. vs. J.F. that the broad interpretation of “dating relationship” as used in the prevention of Domestic Violence Act could extend to relationships based upon the payment of consideration from one party to another. In this case, the defendant contended that his misconduct did not constitute an act of domestic violence because the basis of his social relationship with the plaintiff was based upon money he paid her for professional escort services. The Appellate Division rejected this argument and stated the following:

“Considering the Act’s intended broad scope, we reject the contention that a relationship which includes a payment of consideration for the other’s time precludes the finding of a dating relationship. Indeed, an au pair or live-in housekeeper would undoubtedly qualify as a “person who is a present or former household member,” N.J.S.A. 2C:25-19d, entitled to relief under the Act, even though that person might be a member of the household only because compensation has been paid for his or her presence. The fact that a person receives a monetary benefit from engaging in a relationship does not automatically disqualify that person from the Act’s benefits.”

Download a copy of J.S. v. J.F.

Category: Muni-Mail Archive

Important New Case: Forfeiture of Public Office is a Judicial, Not Prosecutorial, Function

[12/09/09 – 10:41] This morning, the Appellate Division released a critically important new case dealing with forfeiture of public office captioned State v. Rone. In Rone, the Court rejected a waiver of forfeiture by the Essex County Prosecutor’s Office. In so holding, the Court noted that forfeiture is a judicial function and in order to be waived, the prosecutor must demonstrate good cause for the waiver. The decision on whether good cause has been demonstrated can be discerned by a judicial weighing of the 15 factors contained in the Attorney General’s forfeiture waiver guidelines that were promulgated following the Supreme Court’s decision in Flagg v. Essex County, 171 N.J. 561 (2002). This case will provide the analytical framework for all future forfeiture waiver cases in both municipal court and on appeal to the Law Division.

Download a copy of State v. Rone

Category: Muni-Mail Archive

No Serious Emergency Needed to Enter Home w/o Warrant – Michigan v. Fisher

[12/07/09 – 9:51 pm] This morning, in a case captioned Michigan v. Fisher, the United States Supreme Court ruled that a warrantless entry into a residence based upon a police desire to render emergency aid need not be based upon a serious emergency or even obvious injury. Rather, the test is whether the police had an objectively reasonable basis to believe that medical assistance might be needed or that people may be in danger. Police officers do not need iron-clad proof of a serious, life-threatening emergency to make a warrantless home entry under the emergency aid exception to the warrant requirement. In so holding, the Justices noted that the role of the police officer includes preventing violence and restoring order, not simply rendering first aid to casualties. The Court’s opinion in Fisher underscores the Justices’ often-expressed view that police may effect a warrantless home entry to prevent potential injury and need not wait until someone is actually injured.

Download a copy of Michigan v. Fisher

Category: Muni-Mail Archive

Any Competent Witness Can Satisfy 20-min Alcotest Rule – State v . Ugrovics

[12/02/09 – 10:45 am] In this morning’s Appellate Division holding in State v. Ugrovics, the Court ruled that the State may satisfy the 20-minute waiting period required prior to administering an alcotest though the testimony of any competent witness and not just the operator of the instrument.

Click here to download a copy of State v. Ugrovics.

Category: Muni-Mail Archive