Monthly Archives: January 2004

Incomplete mistake of fact as a defense – State v. Pena

Let assume that you fly down to Houston to smuggle stolen furs back to New Jersey. While you’re there, the guys you’re working with take the furs out of your suitcase without telling you, and secretly put in 15 kilos of cocaine.

So, now after the cops catch you the next day at the airport in Newark and you’re indicted for drug distribution, can you argue to the find-finder at trial that you should only be found guilty of theft by receiving stolen property because that is the crime you thought you were committing?

The prosecutor argues that theft by receiving stolen property is not a lesser-included offense of drug distribution and that the defendant was not even indicted for that theft offense.

Yesterday, the Supreme Court ruled that under the doctrine of “incomplete mistake of fact”, a defendant may argue such a defense to a jury and be found guilty of a non-lesser-included, non-indicted offense.

Download State v. Pena

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Domestic Violence d/p Conviction bars firearms possession – N.J.S.A. 2C:39-7(b)(2)

On Wednesday January 14, 2004 the Legislature passed and the governor signed into law a series of bills related to the possession of firearms by persons who have been convicted of acts of domestic violence. One of the changes to the law is set forth under N.J.S.A. 2C:39-7(b)(2). It is now a crime of the third degree for a person who has been convicted of a disorderly persons offense in a domestic violence context to purchase, own or possess a firearm. Note that this statute was enacted into law on the same day the Appellate Division published State v. Wahl. (See muni-mail of 1/14/04)

A conviction for a disorderly persons offense in muncipal court that is related to an act of domestic violence now carries with it another signicant collateral consequence, the loss of the ability to own, possess, purchase or use firearms. Defendants should be informed of this by their defense attorneys prior to the entry of a guilty plea.

The text of the new addition to N.J.S.A. 2C:39-7 follows, along with the official statement that accompanied the bill in the Assembly.

N.J.S.A. 2C:39-7(b)(2) – A person having been convicted in this State or elsewhere of a disorderly persons offense involving domestic violence ,whether or not armed with or having in his possession a weapon enumerated in subsection r. of N.J.S.2C:39-1, who purchases, owns, possesses or controls a firearm is guilty of a crime of the third degree.

ASSEMBLY LAW AND PUBLIC SAFETY COMMITTEE STATEMENT TO ASSEMBLY, No. 276 with committee amendments STATE OF NEW JERSEY DATED: DECEMBER 11, 2003 The Assembly Law and Public Safety Committee reports favorably and with committee amendments Assembly Bill No. 276. Assembly Bill No. 276 prohibits firearm possession by persons convicted of a domestic violence crime or a domestic violence disorderly persons offense, stalking or subject to a domestic violence restraining order. Under the provisions of N.J.S.2C:39-7, persons convicted of certain serious crimes are barred from purchasing or owning a firearm. A violation of this statute constitutes a crime of the second degree. This bill provides that persons convicted of stalking and persons convicted of crimes involving domestic violence would also be barred from purchasing or owning a firearm under that statute. Under the provisions of N.J.S.A.2C:25-21, a law enforcement officer at the scene of an alleged act of domestic violence who has probable cause to believe that an act of domestic violence has been committed may seize any weapons on the premises he believes to pose a threat to the victim. Section 1 of the bill provides that in this situation the law enforcement officer must seize such weapons and any firearms purchaser identification card or permit to purchase a handgun belonging to the person accused of the act of domestic violence. Section 2 of the bill amends N.J.S.A.2C:25-29 to require that any permanent domestic violence restraining order issued by the family court must include a provision barring the defendant from purchasing, owning, possessing or controlling a firearm and from receiving a firearms purchaser identification card or permit to purchase a handgun. The ban would last for the length of time the restraining order is in effect or for two years, whichever is greater. As amended by this committee, this provision of section 2 of the bill would not apply to a law enforcement officer while on duty or to a member of the United States Armed Forces or the National Guard while on duty or traveling to or from a place of duty. Section 3 of the bill, as originally introduced, had provided that a person whose weapon was seized by a law enforcement officer pursuant to the domestic violence act or who was barred from purchasing a firearm pursuant to a court order under the domestic violence act would be guilty of a crime of the fourth degree if he purchased, owned, possessed or controlled a firearm. The committee amended this section of the bill to make it a crime of the third degree to purchase, own, possess or control a firearm under these circumstances. The amendments also clarify the language of this provision, so that it now refers to a person whose firearm is seized pursuant to the domestic violence act and whose firearm has not been returned, and to a person who is subject to a court order prohibiting the possession of firearms issued pursuant to the domestic violence act. The committee also made several stylistic and language changes to the bill so that it conforms to its Senate counterpart S483. In addition, the committee made technical amendments to the bill to conform it with recent legislative enactments. COMMITTEE AMENDMENTS The committee amended the bill to: (1) provide an exemption to the prohibition on gun possession for a law enforcement officer while on duty or to a member of the United States Armed Forces or the National Guard while on duty or traveling to or from a place of duty. (2) make it a crime of the third degree to purchase, own, possess or control a firearm if it has been prohibited by the provisions of this bill. (3) make the bill identical to the Senate version. (4) make technical corrections.

copyright – 2004 Muni-mail, all rights reserved

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DWI Cases pending before Supreme Court

Please take note that the Supreme Court has granted cert in three drunk driving cases that were decided by the Appellate Division last year. They include the following:

State v. Kashi – If a judge determines there is insufficient evidence sustain a finding of guilt on a charge of being under the influence of alcohol (as opposed to the per se violation), does that finding technically constitute a partial acquittal of the drunk driving charge? The Appellate Division said “NO!” at 360 N.J. Super. 538 (App. Div. 2003). Let’s see what the Justices say. The procedural findings in Kashi are reproduced in the table below.

State v. Kashi

Procedural Table

Court: Municipal
Finding Per Se Violation: Guilty
Finding on Under Influence: Not Guilty

Court: Law Division
Finding Per Se Violation: Guilty
Finding on Under Influence: Not Guilty

Court: Appellate Division
Finding Per Se Violation: Reversed – Not Guilty
Finding on Under Influence: Affirmed Guilty

State v. Reiner – This Appellate Division decision (reported on West Law at 2003 WL 22239202) was the first time the Court had an opportunity to construe the school zone provisions set forth under N.J.S.A. 39:4-50(g). Defendant was a second offender and was caught in a school zone. The Court held he was subject to second offender-level school zone penalties.

State v. Fisher – Police officer served a dwi summons and complaint on the defendant but failed to sign the drunk driving complaint within the applicable statute of limitations period. The Appellate Division affirmed the dismissal of the complaint (West Law 2003 WL 22143243). This decision was consistent with previous law. (See State v. Brennan, 229 N.J. Super. 342 (App. Div. 1988)). Supreme Court will have the last word.

None of these cases has been argued yet. Please be mindful of the status of these cases if you need to cite them.

One other case to watch out for is State v. Boggio. This appeal came from an unpublished Appellate Division decision. John Menzel, Esq. and the Ocean County Prosecutor’s office argued it before the Supreme Court back on November 17th. According to the Court, the issue in the case deals with whether convictions for driving while intoxicated under N.J.S.A. 39:4-50 serve as prior offenses in determining the penalty to be imposed under N.J.S.A. 39:4-50.4a for the offense of refusing to submit to a breathalyzer test. This case will be decided before the other three.

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Domestic Violence Simple Assault supports weapons possession ban – State v. Wahl

Earlier today, the Appellate Division released State v. Wahl. Defendant was convicted in municipal court of simple assault under N.J.S.A. 2C:12-1(a)(1). The panel held that the disorderly persons offense of simple assault in a domestic violence context is a “misdemeanor crime of violence” under federal law sufficient to bar the defendant’s possession, use or ownership of firearms.

As a result of this case, defense attorneys must be sure to inform their domestic violence clients of this collateral consequence in municipal court.
A copy of State v. Wahl is attached.

Download State v. Wahl

copyright – 2004 Muni-mail, all rights reserved

Category: Muni-Mail Archive

Attorney General Responds to Eckel Decision

On January 3, 2005, Division of Criminal Justice Deputy Director Ron Susswein issued the following memorandum to all county prosecutors and Col. Fuentes of the State Police.


To: All County Prosecutors
Col. Rick Fuentes, Superintendent, NJSP

From: Ron Susswein
Deputy Director, Major Crimes

Date: January 3, 2005

Subject: State v. William Eckel (A-0363-03T4)

On December 29, 2004, in a published opinion written by Judge Weissbard, the Appellate Division reversed the denial of defendant’s motion to suppress and concluded: “unless and until our Supreme Court decides otherwise, Belton [New York vs. Belton, 453 U.S. 454(1981)] does not represent the law in New Jersey under the greater protections provided by our State Constitution…and we decline to follow it”. The Attorney General will be filing a petition for certification from this decision in the New Jersey Supreme Court.

The law enforcement community should be made aware of this ruling, but SOPs should not change until the issue is decided by the Supreme Court. In the meantime, law enforcement officers should be advised to carefully document, in their police reports, all circumstances that might justify an actual wingspan search incident to arrest under Chimel vs. California, 395 U.S. 752 (1969), because in many cases, the scope of a Chimel search will be tantamount to a Belton search of the entire passenger cabin.


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Another Surcharge for Motor Vehicle Fines – N.J.S.A. 39:5-41(h)

On January 2, 2004, the governor signed A1771, which will be known as the Brain Injury Research Act (BIRA). The statute will add another $1 to all Title 39 fines and penalties for offenses occurring on or after its effective date (180 days from 1/2/04).

When BIRA goes into effect, there will be a total of $6 added to every motor vehicle fine and penalty. As of today, there is a total of $4 surcharges. This amount will increase to $5 on February 2nd.

I suspect that BIRA will be codified by the Office of Legislative Services as N.J.S.A. 39:5-41(h). All of the surcharges are set forth under N.J.S.A. 39:5-41.

Included for your review is the relevant portion of the statute and a press release from the governor’s office explaining the law.

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N.J.S.A. 39:5-41(h) Notwithstanding the provisions of subsections a. and b. of this section, $1 shall be added to the amount of each fine and penalty imposed and collected under authority of any law for any violation of the provisions of Title 39 of the Revised Statutes or any other motor vehicle or traffic violation in this State and shall be forwarded by the person to whom the same are paid to the State Treasurer. The State Treasurer shall annually deposit those moneys so forwarded in the “New Jersey Brain Injury Research Fund” established pursuant to section 9 of P.L. , c. (C. )(pending before the Legislature as this bill). 1[In order to comply with the provisions of Article VIII, Section II, paragraph 5 of the State Constitution, a municipal or county agency which forwards moneys to the State Treasurer pursuant to this subsection] The Administrative Office of the Courts1 may retain an amount equal to 1[2% of] $475,000 from1 the moneys which it initially collects pursuant to this subsection 1[as compensation for its administrative costs associated with implementing], prior to depositing any moneys in the “New Jersey Brain Injury Research Fund,” in order to meet the expenses associated with utilizing the Automated Traffic System Fund created pursuant to N.J.S.2B:12-30 to implement1 the provisions of this subsection 1and serve other statutory purposes1.

(cf: P.L.1999, c.201, s.10)

11. The commission shall adopt regulations pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.) as are necessary to carry out the provisions of this act.

12. This act shall take effect on the 1[90th] 180th1 day following enactment

(CLIFTON) – Governor James E. McGreevey today signed into law A1771, the “Brain Injury Research” Act, making New Jersey the first state with a dedicated source of funding for medical research to treat traumatic brain injuries. In signing this bill into law, the Governor continues to fulfill his commitment to make New Jersey the nation’s leader for medical research. “It is our obligation to provide our families access to the best and most cutting-edge medical technology possible and today we take a momentous step towards making New Jersey the nation’s leader in medical research,” said McGreevey. “Starting today New Jersey will be the first state in the nation to set up a fund dedicated solely to brain injury research. By creating a continuous source of funding we finally bring hope to thousands of New Jersey families, and indeed offer miraculous possibilities for families across the nation.” The Governor signed the legislation from the home of Dennis Benigno, a father who has dedicated his life to furthering medical research for traumatic brain injuries. Benigno’s son, Dennis John, was hit by a car nearly twenty years ago and has been disabled ever since. Benigno founded the Coalition for Brain Injury Research to promote research for brain cell repair. The new law provides for a $1 surcharge on motor vehicle penalties to fund brain injury research. The fund will be administered by an 11-member New Jersey State Commission of Brain Injury Research, in, but not of, the Department of Health and Senior Services. The Commission will include the Commissioner of Health; one representative each from UMDNJ and Rutgers; six public members appointed by the Governor; and two public members to be appointed by the Senate President and the Speaker of the General Assembly, respectively. The Commission will review and approve research projects, ensure funds are not being diverted to any other use, provide the Governor and the Legislature with an annual report on the status of the Commission, and will compile a directory of all brain injury research projects being conducted in the state. “The Governor’s swift action on this bill gives the thousands of New Jerseyans suffering from, or caring for someone with, a debilitating brain injury the first glimmers of hope for a cure,” said Senator Nia H. Gill, D-Essex. “With time and the dedicated State funding provided by this law, the doctors, scientists and researchers working to find ways to reverse traumatic brain injury may finally have the means and the financial support to do so.” “With annual cases of cerebral trauma that easily surpass those diagnosed with breast cancer or HIV/AIDS in this country each year, we aren’t dealing with some little known health problem,” said Senator Joseph F. Vitale, the Democratic Chair of the Senate Health, Human Services and Senior Citizens Committee. “We are dealing with a physically, emotionally and socially debilitating injury that is epidemic in scope. I believe we, as a state and society, have a moral obligation to help fund worthy medical research efforts into possible treatments or cures for traumatic brain injury.” “Brain injuries are traumatic and life-changing, and at this point, almost entirely incurable,” said Senator Joseph Coniglio, D-Bergen, a co-sponsor of the bill. “But research is being done as we speak which may one day change that, and bring the possibility of hope of a normal life to even the most critically injured person. The State owes it to families like Dennis Beningo’s, who have had to suffer the debilitating effects of a brain injury, to fully support this type of life-restoring research.” “Scientific research in neurological health care is key to finding cures for several life-threatening conditions that currently are considered untreatable,” said Assemblyman Willis Edwards III (D-Essex). “Through projects put into place by this commission, scientific advancements can be achieved to help people with severe brain injuries.” “Research on nerve regeneration as a method of brain cell repair should be pursued and encouraged not only for the purpose of helping humankind, but also as a means of strengthening New Jersey’s medical technology industries,” said Assemblyman Peter Eagler (D-Passaic).

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