Monthly Archives: December 2005

Abnormal Vehicle Operation Justifies MV Stop in DWI Case – State v. Zimmerman

A few minutes ago, the Appellate Division released the UNPUBLISHED decision in State v. Zimmerman. The defendant in this case was observed operating his motor vehicle by the police. The police testified as to erratic driving and a so-called “circuitous route” taken by the defendant. As a result, the defendant was stopped, arrested and charged with DWI. He ultimately entered a conditional plea of guilty after having lost a motion to suppress evidence in municipal court. Both the municipal court and Law Division judges found the State’s evidence related to the Defendant’s driving to be sufficient to sustain the State’s burden of proof on a motion to suppress evidence.

This morning, the Appellate Division affirmed the findings of the Law Division and ruled that the police had a reasonable suspicion to stop the defendant’s vehicle.

The case contains a good review of the proper burdens required of reviewing courts on appeal and an analysis of the proofs necessary to sustain a reasonable motor vehicle stop.

Download a copy of the UNPUBLISHED decision in State v. Zimmerman

Category: Muni-Mail Archive

Refusal to Provide Personal ID Info Does Not Violate 2C:29-1 – State v. Camillo

The Defendant in State v. Camillo refused to provide a member of the State Police with information related to his identity during a street investigation. The Defendant was arrested and ultimately convicted in municipal court of obstructing the administration of law under NJSA 2C:29-1.

In an opinion released this morning, the Appellate Division reversed the conviction and held that NJSA 2C:29-1 requires proof of a physical act of obstruction or the commission of an independently unlawful act. Mere refusal to cooperate, without more does not constitute a violation of NJSA 2C:29-1.

The Camillo decision provides an excellent review of NJSA 2C:29-1. It is an offense that is frequently charged and prosecuted in municipal court.

Please note that the conclusion reached in this opinion is similar to the one released by the Appellate Division on December 13th in State v. Williams (see archive entry for 12/13/05 to review the Williams case.) Also, please note that although New Jersey does not have a so-called “stop and identify” statute, the United States Supreme Court has recently upheld the constitutionality of such statutes. See Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004).

Download a copy of State v. Camillo

Category: Muni-Mail Archive

Out-of-state Diversionary Program Bars D/P Expungement – State v. Johnson (UNP)

The UNPUBLISHED Appellate Division opinion in State v. Johnson stands for the proposition that completion of an out-of-state diversionary program by a defendant will create a statutory bar to expunging a disorderly persons offense in New Jersey. In Johnson, the petitioner sought to expunge 3 d/p convictions and an ordinance violation as well as arrests not resulting in conviction. Expungement was granted as to the ordinance and arrests not resulting in conviction. However, the Appellate Division ruled that completion of a diversionary program similar to PTI in another jurisdiction serves as a statutory bar to an expungement for d/p offenses (and presumably a criminal conviction as well).

Download a copy of the UNPUBLISHED decision in State v. Johnson

Category: Muni-Mail Archive

State May Appeal an Improper Law Division Acquittal – State v Still (UNP)

The Appellate Division’s UNPUBLISHED decision in State v. Still involves a defective plea in municipal court to a violation of NJSA 39:4-97.2 (Unsafe Operation of a Motor Vehicle). After entering his plea, the defendant filed an appeal with the Law Division. The basis of the defendant’s appeal was that there was no factual basis entered in municipal court. The Law Division found the plea to be woefully inadequate. However, the Law Division judge then proceeded to find the defendant not guilty, without conducting a hearing on the merits or allowing the State a chance to put on its proofs. The Appellate Division reversed and held that the proper remedy is to vacate the plea and remand the matter to municipal court where the defendant may either re-plead guilty or have the matter decided on the merits.

Note one error in the opinion made by the Appellate Division. The panel complained that the defendant was not sworn in municipal court before entering his guilty plea. The Part VII Rules of Court do not require that a plea be taken under oath, unlike the procedure in the Superior Court under the Part III Rules.

Download a copy of State v. Still, an UNPUBLISHED opinion

Category: Muni-Mail Archive

Prior Driving History Not Evidence of Drunk Driving – State v. Lagalia (UNP)

In State v. Lagalia, the defendant attempted to introduce evidence that he had led a law abiding life as evidence in his DWI trial, apparently in an effort to have the judge draw an inference that he was not the type of person who would drive while intoxicated. To rebut this inference, the State moved his driving history into evidence, which supposedly contained evidence of prior bad driving. Defendant was convicted and appeal.

The Law Division disregarded the driving history evidence and found that the defendant had operated while under the influence of alcohol.

In an UNPUBLISHED decision released today, the Appellate Division affirmed the Law Division. The Panel ruled that the assertion by a defendant of a law abiding life does not necessarily open the door to the admissibility of a prior driving history to rebut whatever inference this evidence may raise. However, in the instant case, there was abundant evidence, apart from the driving history, to support the finding that the defendant operated while under the influence of alcohol.

Download a copy of the UNPUBLISHED decision in State v. Lagalia

Category: Muni-Mail Archive

Warrantless Vehicle Search in Prison Lot Okay – State v. Daniels

Today’s Appellate Division decision in State v. Daniels expands the scope of the special needs exception to the warrant requirement in the context of prison facilities. In this case, a computer screening of a visitor to a prison revealed recent exposure to CDS. A search of the visitor’s person was negative for contraband. However, a subsequent warrantless search of her vehicle in the prison parking lot led to the recovery of a small amount of CDS.

The Court held that the search of the vehicle was reasonable in that prisoners are sometimes permitted to wander in the prison’s parking lot and thus could have ready access to CDS left for them in a motor vehicle.

Download a copy of State v. Daniels

Category: Muni-Mail Archive

Furtive Gesture & Nervousness Not Enough For A Frisk – State v. Potter (UNP)

Earlier today, the Appellate Division released an UNPUBLISHED opinion in State v. Potter, a search and seizure case. In Potter, the police executed a search warrant to look for counterfeit checks, a non-violent offense. The defendant was present in the residence when the police began their search. He was wearing a long, bulky winter coat and had a cell phone in his hand. When the defendant saw the police enter the kitchen area where he was seated, he rapidly stood up and appeared to be extremely nervous. This set of facts prompted the police to conduct a frisk of the defendant for weapons. As a result of the frisk, the police recovered CDS.

The Court ruled that mere nervousness and a furtive gesture, especially in the context of an investigation for a non-violent offense, does not provide the police with a reasonable suspicion that the subject of the frisk may be armed.

Download a copy of the UNPUBLISHED decision in State v. Potter

Category: Muni-Mail Archive

Under the Influence Evidence Makes BAC Unnecessary – State v. Ward (UNP)

State v. Ward is an UNPUBLISHED Appellate division decision that was released this morning. In this case, the Court ruled that even if the defendant’s BAC was gleaned from the breathalyzer was incorrect, the police testimony about his level of intoxication was more than sufficient to support a finding of guilty.

The Appellate Division ducked the issue of the admissibility of the BAC in this case.
As an interesting side note, in the opinion, the defendant’s BAC was reported to be a .09. Accordingly, he would be subject to the 3-month suspension required for first offenders in a non-school zone cases either on the basis of his BAC or the fact that he was under the influence of alcohol. (See NJSA 39:4-50(a)(1)(i)). The BAC issue would have been much more important if the readings had been reported as 0.10% or greater. Had that been the case, both the Appellate Division and the Court below would have had to deal with the issue of the admissibility of the BAC due to sentencing issues (See NJSA 39:4-50(a)(1)(ii)).

Download a copy of UNPUBLISHED holding in State v. Ward

Category: Muni-Mail Archive

Middlesex Alcotest Stay lifted by Supreme Court

Late this afternoon, the New jersey Supreme Court issued an order lifting the stay on the prosecution of drunk driving cases in Middlesex County. The Court’s order appoints a special master to conduct a plenary hearing related to the scientific reliability of the Alcotest 7110.The findings of the special master will be reported to the Justices who will thereafter hear argument from the parties.

Pending DWI cases are to be prosecuted in municipal court in conformity with the Guidelines related to Plea Bargaining cases in municipal court.

Download a copy of the Supreme Court’s order

Category: Muni-Mail Archive

Flight from an Illegal Detention not an Offense – State v. Williams

This morning’s Appellate Division decision in State v. Williams involves a defense appeal of a motion to suppress. The police in this case responded to a vague, anonymous tip about a person selling drugs. The tip stated that a man wearing a black jacket was selling drugs in a high crime area. Upon encounter a man meeting that description in a purported high crime area, the police immediately attempted to conduct a pat-down search. The suspect fled the police but was apprehended a short distance away. A search incident to his arrest for fleeing the scene of the detention resulted in the recovery of a firearm.

The defendant’s motion to suppress in the Law division was denied.

The Appellate Division reversed and ruled that the police had no reasonable suspicion to either detain or conduct a frisk of the defendant based upon the vague conclusions in the tip. Moreover, the fact the defendant fled what constituted an illegal investigative detention by the police does not constitute an offense under New Jersey law, so long as the flight does not involve violence or the high potential for injury to the police.

In essence, flight from an illegal investigative detention does not constitute a violation of NJSA 2C:29-1 unless the flight creates a high risk of injury to the police.

Download a copy of State v. Williams

Category: Muni-Mail Archive

Constructive Possession OK for Drug Zone Prosecutions – State v. Lewis

This morning, the New Jersey Supreme Court ruled that mere constructive possession of CDS with intent to distribute in a drug-free zone is sufficient to support a conviction. In State v. Lewis, the defendant stashed his illegal drug supply outside of a public park drug-free zone, but conducted business by hawking customers and accepting their money from within the 500 foot zone. In a 5-2 decision written by Justice Wallace, the Justices ruled that the school zone and public park zone drug laws can be violated be mere constructive possession with intent to distribute, provided that there is a logical nexus between the location of the drugs and the drug-free zone.

Download a copy of The Supreme Court’s opinion in State v. Lewis

Category: Muni-Mail Archive

Notice to Address of Record Required for DWI Surcharges – Maloney v MVC (UNP)

The UNPUBLISHED decision from the Appellate Division in Maloney v. Motor Vehicle Commission stands for the proposition that DWI surcharge notices need only be mailed to the driver’s address of record in the MVC computer system.

Download a copy of this UNPUBLISHED opinion

Category: Muni-Mail Archive

Dismissed DWI Appeal Reinstated after 3 years – State v. Patel (UNP)

In State v. Patel, an UNPUBLISHED Appellate Division decision from this morning, the Court ruled that a municipal appeal that had been dismissed 3 years earlier could be reinstated in the Law Division. The defendant in this case hired an attorney to represent him on the appeal. Although the appeal was properly filed, it was subsequently dismissed because of the failure of the attorney to file a brief.

Thereafter, knowing the case had been dismissed, the attorney made numerous and continuing representations to the defendant that the appeal was still pending. After 3 years, when the defendant learned the appeal had been dismissed, he hired a new attorney who sought its reinstatement.

The Appellate Division allowed the appeal to be reinstated based upon the fact that the fault for the dismissal could, in no manner, be attributed to the defendant.

Download a copy of State v. Patel, an UNPUBLISHED decision

Category: Muni-Mail Archive

Law Division Must Correct an Illegal DWI Sentence – State v. Schimenti (UNP)

In State v. Schimenti, an UNPUBLISHED Appellate Division case released this morning, the Court ruled that a plea agreement calling for the imposition of an illegal sentence cannot be sustained and must be corrected by the Law Division on review. The illegal DWI sentence had been the subject of a municipal appeal by the State. The Law Division declined to amend the sentence because it had originally been reached as part of a plea agreement.

Recalling that such plea agreements in DWI cases are illegal, the Appellate Division noted that a reviewing court has a duty to correct illegal sentences.

Download a copy of the UNPUBLISHED decision in State v. Schimenti

Category: Muni-Mail Archive

App. Div. Denies State’s Appeal in Alcotest Case – State v. Chun

State v. Chun is the Alcotest 7110 case now pending in Middlesex County where there has been a defense demand that the prosecution demonstrate that the instrument is a scientifically reliable mechanism for accurately measuring blood alcohol content in human beings. Previously, the Office of the Attorney general had sought relief on an interlocutory basis in the Appellate Division from various orders entered by the trial court. In an order filed this morning, the Appellate Division granted the State’s motion to hear the interlocutory appeal, and then summarily denied all the relief sought by the State. The stay of all alcotest prosecutions in Middlesex County, per the order of the trial judge, was not part of the appeal and thus continues.

Download a copy of this morning’s order

Category: Muni-Mail Archive