Monthly Archives: February 2006

New Refusal Burden of Proof Applies Retroactively – State v. Yengo (UNP)

[2/17/06 – 12:22 pm] This morning’s UNPUBLISHED Appellate Division opinion in State v. Yengo applies the “beyond a reasonable doubt” standard of proof now mandated in refusal cases to a matter that was tried before this burden was the required. In State v. Cummings, 184 N.J. 84 (2005), the Supreme Court ruled that the burden of proof in a refusal case is beyond a reasonable doubt. In the Yengo case, the defendant was convicted prior to the Cummings decision on what was obviously the former burden of proof, a preponderance of the evidence.

The Appellate Division vacated the guilty finding in Yengo and remanded the case for reconsideration to the Law Division.

Download a copy of State v. Yengo, an UNPUBLISHED decision.

Category: Muni-Mail Archive

False Affidavit Results in Suppressed Evidence – State v. Dispoto

[2/17/06 5:51 pm] Today’s Appellate Division decision in State v. Dispoto affirms the suppression of physical evidence seized under the authority of a search warrant as well as the suppression of an incriminating statement taken from the defendant. Initially, following a motion to suppress evidence hearing, the motion judge sustained the search and seizure of the evidence taken under the authority of the search warrant. However, during the course of a later Miranda hearing held at trial, the same judge heard additional evidence which led him to conclude that certain critical information provided in the search warrant application had been false and that key aspects of the police officers’ testimony was incredible. Accordingly, the judge granted the motion to suppress the statement and reversed his own earlier order, thereby granting the motion to suppress the evidence that had been seized.

The Appellate Division ruled that judges have long had the authority to modify their own interlocutory rulings and orders. The panel also held that there was sufficient credible evidence in the record for the motion judge to have concluded that the search warrant contained false and misleading information which resulted in the warrant being issued in the absence of probable cause.

Download a copy of State v. Dispoto.

Category: Muni-Mail Archive

DV Harassment Requires Purposeful Conduct – MJ v. GD (UNP)

[2/15/06 – 1:03 pm] In M.J. v. G.D., an UNPUBLISHED decision, the Appellate Division reverses a Family Court finding of domestic violence based upon the trial judge’s misunderstanding of the evidence needed to prove a charge of harassment under NJSA 2C:33-4. The Appellate Division ruled that although the defendant’s words were likely to cause annoyance or alarm, there was no evidence to suggest that he had such a purpose. Since the “purposeful” element had not been proved by a preponderance of the evidence, no restraining order should have been entered.

Download copy of the UNPUBLISHED decision in M.J. v. G.D.

Category: Muni-Mail Archive

Late Filing of DWI Mun. Appeal Is a Fatal Defect – State v. Patyrak (UNP)

State v. Patyrak is an UNPUBLISHED Appellate Division decision that serves as a reminder on how easy it is to mess up a municipal appeal by failing to meet the time requirements. In this case, late filings, missed filings, filings by mail and a host of other procedural difficulties resulted in the defendant having his appeal dismissed.

This is an important case in that it provides detail on the precise steps that must be followed when pursuing a municipal appeal.

Note – Although not an issue in this case, it is important to remember that many judges do not properly advise defendant’s about their right to appeal. This failure may result in some latitude in the filing of these appeals out of time. See State v. Martin, 335 NJ Super. 447 (App. Div. 2000).

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

Category: Muni-Mail Archive

DRE Opinion Result in Under Influence of Drugs Conviction State v. Reiter (UNP)

The UNPUBLISHED Appellate Division opinion in State v. Reiter involves an under the influence of drugs prosecution where both the municipal court judge and Law Division judge ( Hon. Judge Cantor, of recent State v. Chun fame) based their conviction of the defendant upon the opinion given by a police department Drug Recognition Expert (DRE). This case contain an excellent review and analysis of the proofs that are necessary in this type of prosecution and the areas of testimony that are appropriate for a DRE.

Note that the Appellate Division’s reliance on State v. Bealor as cited at length in the opinion should be regarded with some measure of caution as this case is currently before the New Jersey Supreme Court. This is probably why this otherwise important opinion has not been approved for publication.

Download copy of State v. Reiter, an UNPUBLISHED decision.

Category: Muni-Mail Archive

Failure to Use Turn Signal Justified DWI MV Stop – State v. Morey (UNP)

The UNPUBLISHED decision from the Appellate Division in State v. Morey involves a motion to suppress evidence in a DWI case. The issue before the court related to the justification for the stop, which according to the police was defendant’s failure to use his turn signal. The defendant maintained that since there were no other cars on the road, and he did not see the officer far behind him, there was no legal obligation for him to use his turn signal under NJSA 39:4-126.

In rejecting this argument, the Appellate Division provides some additional explanation about the requirements of NJSA 39:4126 and clarification on the recent case, State v. Puzio, 379 NJ Super. 378 (App. Div. 2005) where a mistake of law by the officer resulted in the suppression of evidence in a DWI case.

Download a copy of the UNPUBLISHED Appellate Division decision in State v. Morey.

Category: Muni-Mail Archive

Failure to Check Box Not Grounds to Void Breath Test – State v. White (UNP)

In the UNPUBLISHED Appellate Division decision of State v. White, released earlier today, the defendant sought to bar the results of his breath test on the ground that the State had not proved the examining officer followed the proper procedures. In effect, the defendant’s argument was based upon the examining officer’s failure to check off box 14 during the administration of the second breath test.

The entirely predictable outcome to this argument is set forth in the opinion, together with a good review of the NJAC requirements for proper administration of breath tests using a breathalyzer.

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

Category: Muni-Mail Archive