Monthly Archives: July 2004
This morning’s Appellate Division decision in State v. Och is an important forfeiture case. In Och, the defendant, a school board employee (non-tenued maintenance man), was originally charged with indictable drug offenses. His case was resolved under a negotiated plea whereby he pled guilty to a disorderly persons offense of loitering for the purpose of obtaining CDS. At sentencing, the ass’t prosecutor represented that the State was not seeking a forfeiture of public employment.
Thereafter, defendant’s employer moved for forfeiture of public office, claiming that the d/p drug offense “touched upon” defendant’s office in that it violated the board’s zero-tolerance policy.
The Appellate Division held that in the absence of a formal application for waiver by the state, forfeiture is mandatory for an offense that touches upon public office. The decision to seek waiver is vested in either the attorney general or county prosecutor. However, the decision to grant waiver or determine if an offense touches upon public office is exclusively left to the judiciary.
Moreover, when the issue of forfeiture is not raised at sentencing, it may be subsequently raised by either the prosecutor or the public employer.
Finally, note that even though a forfeiture of public office is a collateral consequence, the court permitted defendant the option to withdraw his plea on grounds of fundamental fairness.
Download a copy of State v. Och
copyright 2004 – muni-mail – all rights reserved.
This morning, the New Jersey Supreme Court released its opinion in State v. Fisher. Fisher dealt with a dwi case where the police officer neglected to sign the ticket within the applicable statute of limitations period in N.J.S.A. 39:5-3. (Note that in the case, the time limit is 30 days. It has since been expanded to 90 days.)
Because New Jersey law favors the disposition of traffic offenses on the merits as opposed to technicalities, the Justices ruled that rather than dismissing the complaint, the Court must allow the State to correct this technical defect even after the statute of limitations has expired. This holding by the Supreme Court is new law and overrules an older Appellate Division case which reached a contrary result.
Download a copy of State v. Fisher
copyright 2004 – Muni-mail – All Rights Reserved
As a service to the bar, muni-mail would like to remind its subscribers that for traffic offenses under Title 39 occurring on or after July 1, 2004, there must now be a $6 assessment added to every fine or penalty. See N.J.S.A. 39:5-41(d) through (h).
The previous assessment of $5 was increased to provide funding for the “New Jersey Brain Injury Research Fund.”
Thus, for example, the correct fine for a first offense driving on the revoked list charge under N.J.S.A. 39:3-40 occurring on or after July 1, 2004 should be $506, which includes a $500 fine and an additional $6 assessment.
Earlier this morning, the New Jersey Supreme Court announced its decision in State v. Reiner. Reiner presented the Court with two issues. The first concerned how a convicted drunk driver should be sentenced when his second dwi offense occurs within a school zone. The defendant in this case had one prior conviction under N.J.S.A. 39:4-50(a) but no prior school zone offenses.
The Justices held that the school zone offense under N.J.S.A. 39:4-50(g) and the regular dwi violation under N.J.S.A. 39:4-50(a) are entirely separate offenses, each of which requires a prior conviction for enhanced punishment. Thus, in order to be subject to second offender school zone penalties under N.J.S.A. 39:4-50(g), a defendant must have had a prior school zone conviction on his or her record.
Obviously, in every school zone sentencing case, there will always be a conviction under N.J.S.A. 39:4-50(a) as well. The Justices ruled that the defendant should always receive the highest penalty available under either of the two sections. For example, if the defendant is subject to second offender sentencing under 39:4-50(a) and first offender sentencing under 39:4-50(g), he should receive the harsher second offense penalties under 39:4-50(a). The lesser school zone penalties would technically merge into the greater penalties.
(It is interesting to note that a person sentenced under any of the school zone provisions would avoid such the ignition interlock device requirement.)
The second issue decided by the Court in Reiner dealt with whether the defendant had adequate notice of his school zone offense since the ticket did not specify 39:4-50(g). The Justices ruled that on the facts of the case, the defendant had sufficient notice from extrinsic evidence (police reports, info from pre-trial conferences, etc.) to know that he was facing a school zone prosecution.
Download a copy of State v. Reiner
copyright 2004 – muni-mail -all rights reserved