Monthly Archives: December 2004

New sentencing obligations for prosecutors

Yesterday, the governor signed S1504 into law. This statute amends the provisions of N.J.S.A. 2B:25-5.1. The amendment adds driving on the revoked list and leaving the scene of an accident to those offenses for which a municipal prosecutor must order and review a certified abstract prior to sentence imposition. The previous version of the statute only required such a review when the defendant is charged with DWI or Refusal.

Note that the amended statute contains no sanctions for prosecutors who fail to make the proper review. In addition, there is no requirement under this statute that the defendant’s record be provided to defense counsel as discovery.

Finally, please note that the obligation to review abstracts imposed upon municipal court judges under Administrative Directive 10-4 is much more thorough and requires a review whenever any traffic offense may result in statutorily required enhanced punishment. (See muni-mail archive for complete text of Directive 10-4…

The text of the amended N.J.S.A. 2B:25-5.1 is as follows:

11. Section 1 of P.L.2004, c.95 (C.2B:25-5.1) is amended to read as follows:

1. Whenever a person is charged with a violation of R.S.39:3-40, R.S.39:4-50 [or], section 2 of P.L.1981, c.512 (C.39:4-50.4a) or R.S.39:4-129, a municipal prosecutor shall contact the New Jersey Motor Vehicle Commission by electronic or other means, for the purpose of obtaining an abstract of the person’s driving record. In every such case, the prosecutor shall:

a. Determine, on the basis of the record, if the person shall be charged with enhanced penalties as a repeat offender; and

b. Transmit the abstract to the appropriate municipal court judge prior to the imposition of sentence.

(cf: P.L.2004, c.95, s.1)

Category: Muni-Mail Archive

Auto Searches Incident to Arrest Banned in N.J. – State v. Eckel

Unless it is reversed at some point in the future by the New Jersey Supreme Court, today’s Appellate Division decision in State v. Eckel will surely be regarded as a landmark decision in New Jersey Arrest, Search and Seizure jurisprudence.

The defendant in Eckel was a passenger in a motor vehicle that had been stopped by the police. At the time of the stop, the police were aware of active municipal court bench warrants for the defendant. Accordingly, the police effected his arrest and secured him in the rear of a police vehicle. The vehicle’s driver asked for permission to retrieve some of the defendant’s clothing from the interior of the vehicle. The police declined to let her do this for reasons of officer safety. Rather, the police went to fetch the requested clothing inside the vehicle and, in so doing, discovered distribution level amounts of CDS.

Although the defendant raised challenges to the legality of this search on the basis of several exceptions to the warrant requirement, the State took the position that it would only defend the search of the vehicle on the basis of the search having been undertaken as incident to a lawful arrest, as authorized under New York v. Belton, 453 U.S. 454 (1981).

The Appellate Division opinion in Eckel holds that this exception to the warrant requirement no longer applies in New Jersey based upon the enhanced protections afforded people in New Jersey under our State Constitution under Article I, paragraph 7.

The bright line rule in Belton permits police to search the interior compartment of a motor vehicle for weapons, evidence, contraband or fruits and instumentalities of crime whenever the police effect the lawful arrest of an occupant of the vehicle. The New Jersey Supreme Court had previously restricted the scope of Belton in our State by removing arrests for traffic offenses as a justification for this type of search. (See State v. Pierce, 136 N.J. 184 (1994)). Today’s decision eliminates this exception to the warrant requirement entirely in New Jersey.

The Court”s decision in Eckel is based upon the simple fact that a person who is in custody in the back of a police car is in no position to reach for a weapon or attempt to destroy evidence hidden within the interior of the vehicle from which he has been removed. This fact, coupled with a significant amount of criticism of the rule in Belton over the years persuaded the Court that Belton does not represent the law of New Jersey under the greater protections afforded by the State Constitution.

Muni-mail Analysis and Commentary:

1. The Court in Eckel did not discuss whether this decision is to be given retroactive effect.

2. Police agencies should note that this opinion does nothing to alter existing N.J. law that permits the search of a motor vehicle based upon other exceptions to the warrant requirement such as the automobile exception (Carroll v. United States, 267 U.S. 132 (1925); State v. Cook, 163 N.J. 657 (2000)), consent (State v. Carty, 170 N.J. 632 (2002)), protective searches (State v. Lund, 119 N.J. 35 (1990)), community caretaking (State v. Goetaski, 209 N.J. Super. 362 (App. Div. 1986)), inventory searches (South Dakota v. Opperman, 428 U.S. 364 (1976)) and the like.

3. Given the importance of this decision, there is a good chance that the Supreme Court will certify an appeal by the State. There was no dissent in the Appellate Division, thus no appeal as of right available.

4. The State’s failure to defend the search in this case on the basis of other exceptions to the warrant requirement proved to be a fatal error. For example, this search might well have justified under New Jersey law that permits police to retrieve personal property and give it to defendants prior to the towing of an impounded motor vehicle. See State v. Mangold, 82 N.J. 575 (1980).

Download a copy of State v. Eckel

copyright muni-mail 2004 – All rights reserved.

Category: Muni-Mail Archive

Testimonial hearsay violates 6th Amendment – Crawford v. Washington

In March of this year, the United States Supreme Court ruled that testimonial hearsay which might otherwise be deemed reliable may violate the 6th Amendment right of Confrontation unless the hearsay declarant is unavailable and was previously subject to cross-examination.

Thus, for example, testimonial hearsay in the form of an excited utterance in a domestic violence case that might be otherwise admissible under NJRE 803(c)(2) cannot be used if the hearsay declarant has not been subject to cross-examination.

Download a copy of Crawford v. Washington

Category: Muni-Mail Archive

DWI dismissal applications by prosecutors subject to review

The December 2, 2004 memorandum reproduced in this Muni-Mail was prepared by the Administrative Director of the Courts and was sent to all the municipal court judges in the State. Effective immediately, it will control the procedures to be used whenever a municipal prosecutor seeks to dismiss or downgrade a drunk driving offense. Muni-mail advises that all New Jersey defense attorneys, prosecutors and judges who handle drunk driving cases should be familiar with the requirements set forth in this memorandum.







Attached is a series of sample questions that a judge should ask on the record when a prosecutor has moved to dismiss or amend a drunk driving charge (N.J.S.A. 39:4-50, driving while intoxicated). The Conference of Presiding Judges-Municipal Courts developed these questions, which are designed to establish a record and thereby prevent an improper dismissal or amendment of a N.J.S.A. 39:4-50 charge. These questions are intended as a guide, so you need not ask the prosecutor the questions exactly as written. You are expected, however, to ask these or similar questions and any additional questions necessary to establish, on the record, the prosecutor’s detailed reasons for requesting a dismissal or amendment.

If you have any questions about this memorandum, please contact your Vicinage Municipal Court Presiding Judge of Municipal Division Manager.


The following are sample questions that Municipal Court Judges should consider in questioning the municipal prosecutor when the prosecutor seeks to dismiss or amend a drunk driving offense.

1) Why do you wish to dismiss or amend the charges?

A general statement by the prosecutor that asserts only a conclusion that the State cannot prove the charge beyond a reasonable doubt is insufficient. The prosecutor must state on the record the specific reasons why the case cannot be proven beyond a reasonable doubt. The prosecutor should provide the Court with a detailed explanation of the reasons the case cannot be proven. For example, the prosecutor saying, “I cannot prove operation,” is insufficient. The prosecutor needs to set forth, on the record, specific reasons why operation cannot be proven. The Court should be prepared to question the prosecutor in detail on any assertion made by the prosecutor.

2) Did you review the police reports and any videotape and discuss the case with the arresting police officer?

If the prosecutor indicates that the police reports were not reviewed or that the police officer had not been consulted, the Court should refuse to entertain the motion to dismiss or amend, until the prosecutor has indicated, on the record, that the police report was reviewed and the arresting officer was consulted.

3) The Court should be provided with specific facts to support the prosecutor’s position that the charges cannot be established beyond a reasonable doubt. In exploring these facts, the Court should consider asking the following questions:

a) If the operation cannot be proven, why not? Did the officer observe operation? Are there any witnesses who observed operation? Did the defendant make any admissions as to operation? Can the State seek to prove operation through any circumstantial evidence?

b) Is there a blood alcohol reading? If yes, why does the prosecutor believe it cannot be introduced in evidence? The prosecutor should place on the place on the record the specific facts as to why the reading cannot be introduced into evidence. For example, a conclusion by the prosecutor that the machine is defective or there was a problem with the before or after test is insufficient. The prosecutor must state specific facts as to why the test is defective.

c) If the prosecutor indicates that the reading is defective, then the Court should closely examine the prosecutor as to whether the charges can be proven without a blood alcohol reading. In examining the prosecutor in this regard, the Court should ask about the facts of the stop (i.e. the observations of operation observed by the officer, the defendant’s conduct on the stop, [i.e. physical appearance and demeanor], the defendant’s ability to perform psychophysical tests at the scene and at the police department, the defendant’s admissions as to consumption of alcohol).

4) If the prosecutor seeks to dismiss or amend based on a defense expert’s report, the Court should closely question the prosecutor as to whether the State will be able to produce an expert to counter the defense expert. The Court should also be informed of the conclusions reached in the defense expert’s report.

5) Is the application to dismiss or amend the case the result of a plea bargain where the defendant has agreed to plea to some other charge in return for the prosecutor dismissing or amending the charges?

Pursuant to Rule 7:6-2, any plea agreement must be in accordance with Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey. These Guidelines specifically prohibit a plea agreement in cases under N.J.S.A. 39:4-50.

Category: Muni-Mail Archive

Prosecutorial Misconduct – State v. Daniels

Yesterday’s decision by the New Jersey Supreme Court in State v. Daniels creates new rules of law affecting criminal procedure. The decision in Daniels relates to comments in summation by the prosecutor, urging the jury to believe that since the defendant sat through the trial and listened to the testimony, he was able to “tailor” his own testimony to be consistent with the versions presented by other witnesses.

The Supreme Court found that there are generally two types of “tailoring” arguments that prosecutors make in summation. One is a “generic” argument which alleges in general terms and without evidence that the defendant tailored his testimony after listening to the testimony of the previous witnesses witnesses. The other type is a “specific” tailoring argument, based upon actual evidence in the record of the trial.

As a result of the Daniels case, New Jersey prosecutors are now forbidden from using generic references to “tailoring” in both their summations and in cross examination. Prosecutors may comment in a limited fashion when there is specific evidence of “tailoring” in the trial record. However, in no event may a prosecutor argue to the fact-finder that the defendant was in court throughout the trial, heard the testimony of all the witnesses and was thus able to tailor his own testimony to be consistent with those facts that are helpful to the defense case.

Download a copy of State v. Daniels

Copyright muni-mail – 2004 – all right reserved.

Category: Muni-Mail Archive

Right to Counsel in Family Court – State v. Ashford

This morning’s Appellate Division decision in State v. Ashford is important in two respects. The facts of the case involve the trial of disorderly persons offenses in family court that were related to a domestic violence restraining order violation. The State’s entire case was based upon hearsay which was admitted into evidence as an excited utterance (N.J.R.E. 803(c)(2)).

Prior to the beginning of the trial, the Family Court trial judge took virtually no steps to advise the defendant of his right to appointed counsel if he could demonstrate that he was an indigent.

The Appellate Division reversed the conviction, holding that the normal right to assigned counsel that a defendant would receive in municipal court also applies to the Family Part of Superior Court when that court exercises its concurrent jurisdiction in the trial of non-indictable offenses.

Even more interesting was the Appellate Division’s discussion of the possibility that the use of otherwise admissible, excited utterance hearsay under n.J.R.E. 803(c)(2)in a case such as this may be barred in light of the United States Supreme Court decision last March in Crawford v. Washington, 541 U.S. 36 (2004).

Download a copy of State v. Ashford

In light of the importance of the Crawford decision and its reference in this opinion, muni-mail will add Crawford v. Washington to the web site archive today.

copyright muni-mail 2004 – All rights reserved

Category: Muni-Mail Archive