Monthly Archives: March 2010
[03/30/10 – 2:08 pm] In a 7-0 decision, the New Jersey Supreme Court ruled this morning that e-mail communications sent from a disaffected employee to her attorney by way of a work-place computer were protected by the attorney/client privilege. The evidence before the Supreme Court revealed that the plaintiff utilized her own work-place computer to send e-mails to her attorney by utilizing a personal yahoo account. The communications related to problems she was having at her job and anticipated litigation against the employer. After she left her employment, the employer discovered the e-mails on the computer hard-drive and utilized them in defense of their case, claiming that the plaintiff had no expectation of privacy in her work-place computer based upon company policy and New Jersey common law. The Supreme court ruled that the company policy did not cover use of private e-mail accounts and that she had a legitimate expectation of privacy in the e-mails to her attorney.
Download a copy of Stengart v. Loving Care.
[3/18/10 – 10:18 am] In this morning’s Appellate Division decision captioned State v. Kim, the Court held that a challenge to a refusal charge made upon the basis of the defendant’s inability to understand the required warnings must be made by way of motion to suppress so that an adequate record can be developed and appropriate findings of fact and law can be made.
Download a copy of State v. Kim
[3/11/10 – 3:20 am] On Tuesday, the New Jersey Supreme Court promulgated Directive #02-10 related to time payment issues in municipal court. The Directive was issued in response to the enactment into law of NJSA 2B:12-23.1 in January. This new statute constitutes an enormous change in the law regarding the collection of past-due financial obligations in municipal court. Under both the prior statutory and case law, only fines could be vacated or converted to a jail term under the theory that the purpose of a fine is to punish, whereas all the other financial sanctions had a different purpose such as rehabilitation, revenue raising, etc. Under the new law, all financial obligations, with the sole exceptions of restitution and the $250 surcharge imposed for a violation of NJSA 39:4-97.2 are eligible to be vacated under a variety of situations that are spelled out in the statute. The new statute reads as follows:
2B:12-23.1 Penalties payable in installments; alternative penalties.
1. a. Notwithstanding any other provision of law to the contrary, if a municipal court finds that a person does not have the ability to pay a penalty in full on the date of the hearing or has failed to pay a previously imposed penalty, the court may order the payment of the penalty in installments for a period of time determined by the court. If a person defaults on any payment and a municipal court finds that the defendant does not have the ability to pay, the court may:
(1) reduce the penalty, suspend the penalty, or modify the installment plan;
(2) order that credit be given against the amount owed for each day of confinement, if the court finds that the person has served jail time for the default;
(3) revoke any unpaid portion of the penalty, if the court finds that the circumstances that warranted the imposition have changed or that it would be unjust to require payment;
(4) order the person to perform community service in lieu of payment of the penalty; or
(5) impose any other alternative permitted by law in lieu of payment of the penalty.
b. For the purposes of this section, “penalty” means any fine, statutorily-mandated assessment, surcharge or other financial penalty imposed by a municipal court, except restitution or a surcharge assessed pursuant to subsection f. of section 1 of P.L.2000, c.75 (C.39:4-97.2).
Download a Copy of Directive #02-10
[03/09/10 – 9:57 am] Yesterday, the Supreme Court authorized the release of two judicial disciplinary orders that contained reprimands for two judges of the Superior Court. In both cases, In re Citta and In re Convery, the Advisory Committee on Judicial Conduct (ACJC) found that comments made by the judges in open court had the clear capacity to demonstrate judicial bias based upon ethnicity. Each of the judges waived his right to a hearing before the Supreme Court and accepted the factual findings, conclusion of law and recommended discipline set forth in the ACJC presentments.
Download a copy of the ACJC Presentments in In re Citta and In re Convery.
[3/9/10 – 10:03 pm] In this morning’s Supreme Court decision in State v. Broom-Smith, the justices established a procedure to be used when police officers seeking a search warrant do not have immediate access to their local judge. The Court ruled that in those vicinages where municipal court judges may issue search warrants, the police should generally first attempt to contact their local municipal court judge. If the judge is absent or otherwise incapacitated (for example, away on vacation or hospitalized), the officers may seek access to a different authorized judge. However, the fact that the judge is busy with other matters or home for lunch should not automatically trigger access to another judge in the vicinage. Rather, the officers should wait a reasonable period unless, for some reason, the matter is emergent and time is of the essence.
Further, the fact that a particular municipal court is not “in session,” that is, holding court, does not necessarily mean that the judge is “unable” to hear a warrant application. It may be that in furtherance of his private practice, the judge is far from his vicinage. In that case, he may, in fact, be “unable” to hear the matter, especially if there are time constraints involved. But it does not follow that a judge who is sitting in his local law office is “unable” to entertain a warrant application, especially since that is part and parcel of his judicial responsibilities.
Moreover, a vicinage-wide cross-assignment order, which may provide for more than one substitute judge, should prescribe the sequence to which substitute judges are to be resorted. That, in turn, will eliminate any question of judge shopping. Practically speaking, prescribing the sequence will militate against assigning every municipal court judge in a vicinage as a substitute for every other judge because of the burden that would cast on the first judges in the sequence.
The justices went on to note that when a warrant applicant applies to a substitute judge, a record should be made of the reason the application is not being presented to the
territorially-appropriate court. Finally, the cross-assignment order should be renewed annually to account for changes in judicial appointments.
Download a copy of State v. Broom-Smith.