Monthly Archives: April 2006

Failure to Advise Right to Counsel Results in Reversal – State v. Diamante (UNP)

In the UNPUBLISHED decision of State v. Diamante, the Appellate Division once again affirmed that a defendant who has been charged with an offense in municipal court must be individually informed of his right to counsel. Failure to do so results in reversible error. It does not matter that the punishment for the offense charged is not a consequence of magnitude nor that the defendant may have been so advised during the judge’s opening statement. Each defendant must be individually advised.

Download a copy of the UNPUBLISHED decision in State v. Diamante.

Category: Muni-Mail Archive

Plain Smell Does Not Justify Search of Home – State v. Strekis (UNP)

This morning’s UNPUBLISHED Appellate Division decision in State v. Strekis is important in that it provides an excellent overview of the evidence that is necessary for police to undertake a search of a home based upon the so-called “plain smell” doctrine.
Police responding to a burglary in progress entered a home and conducted a sweep. Although the police found evidence of a break-in, no suspects were discovered. Once the property was secured, a detective swept through the home again. During the course of this second search, the detective smelled the strong odor of marijuana. He determined the smell was coming from behind a wall. He searched in the wall and recovered a disorderly persons level amount of marijuana.

The Appellate Division suppressed the evidence, ruling that the plain smell search and discovery of the marijuana is not the same as the plain view exception to the warrant requirement. The detective had to conduct a further search to find the drugs. This search exceeded the bounds for the original justification for the police entry into the home – emergency aid due to the burglary. Moreover, the police were not subject to exigent circumstances and had ample opportunity to apply for a search warrant.

Download a copy of the UNPUBLISHED State v. Strekis

Category: Muni-Mail Archive

New Statute Bans Internet Hunting in New Jersey

As you surely know, one of the more popular ways to pass time on the internet these days is hunting game animals and killing them with firearms or by bow and arrow. Typically, this “virtual” hunting takes place when animals on some type of game preserve wander into the cross-hairs of a combination camera and firearm device that can be remotely triggered by the hunter over the internet from anywhere in the world.

The New Jersey legislature has taken decisive action to put a stop to this practice. Yesterday, the governor signed into law the provisions of assembly bill a764. This new law prohibts the operation of facilities in new jersey that provide game for internet hunting. It also outlaws the act of computer assisted hunting over the internet from locations inside of our beautiful garden state.

Violations of this statute are civil in nature and may be heard in municipal court as summary matters under the penalty enforcement law of 1999 (njsa 2a:58-10 et seq.) A civil penalty of as much as $500 may be assessed for each violation. Each separate day of internet hunting or operation of an internet hunting facility constitutes a separate offense.

The new statutes reads as follows:

An Act concerning computer-assisted remote hunting, and supplementing Title 23 of the Revised Statutes . Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. No person shall engage in computer-assisted remote hunting or provide or operate facilities for computer-assisted remote hunting in the State.

b. As used in this act, “computer-assisted remote hunting” means the use of a computer via an Internet connection or any other device or equipment capable of establishing an Internet connection , or equipment or software capable of being used with an Internet connection, to remotely access and control the aiming and discharge of a firearm, bow and arrow, or any other weapon to hunt any game bird, game animal, or fur-bearing animal in the State, and “facilities for computer-assisted remote hunting” means real property and improvements on the property associated with hunting, including hunting blinds, offices and rooms equipped to facilitate computer-assisted remote hunting via an Internet connection .

c. No provision of this section shall be construed to restrict the use of equipment or devices, approved by the Fish and Game Council, by properly licensed hunters in the act of hunting in the field who require, because of a disability, handicap, or other physical condition, the assistance of certain equipment or devices that may or may not employ a computer or computerized parts in order to hunt in the field.

2. Any person who violates the provisions of this act shall be liable to a civil penalty of up to $500 for each offense, to be collected in a civil action by a summary proceeding under the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.). If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate and distinct offense.

3. This act shall take effect immediately.

Category: Muni-Mail Archive

Emergency Aid Doctrine Overrides Need for Miranda Warnings – State v. Boretsky

The so-called emergency aid doctrine is well-recognized under New Jersey law with respect to the ability of police officers to enter a residence and conduct a search related to an emergency. (See generally State v. Frankel, 179 N.J. 586 (2004) and State v. Cassidy, 179 N.J. 150 (2004)) Today’s Supreme Court decision in State v. Boretsky represents a significant expansion of the emergency aid doctrine as it relates to the administration of Miranda warnings and a defendant’s incriminating statements made during an emergency.

In Boretsky, the police responded to a 9-1-1 call from the defendant reporting a suicide of the defendant’s wife at their home. The police dispatcher informed the responding officer that a final restraining order was currently in effect, barring the defendant from contact with his wife.

Upon arrival at the location of the purported suicide, the police knocked on the door and were greeted by the defendant who was speaking on a cell phone. The defendant indicated that his attorney was on the phone and asked the police to speak to him. The officers declined to do so and immediately went about investigating the emergency. They found the defendant’s wife with an obvious major chest wound and a knife near her body. The defendant continued with his attempts to persuade the police to speak to his lawyer. The police refused to do so and instead, while tending to the emergency, asked the defendant questions related to his wife and the last time he had seen her. The defendant made incriminating admissions and continued to repeatedly ask for the police to speak on the cell phone to his lawyer.

Ultimately, the police removed the cell phone from the defendant and arrested him, thereby preventing him from further disrupting the police emergency response. Defendant was given Miranda warnings upon his arrest and moments later made additional incriminating statements although not as a result of interrogation.

The Supreme Court ruled that when police are confronted with an emergency situation such as occurred in this case, the administration of Miranda warnings is of secondary importance to law enforcement’s paramount goal of saving lives and protecting property. An emergency aid situation overrides the need for Miranda warnings. Moreover, an ambiguous or equivocal assertion by a defendant of his right to counsel is also deemed to be ineffective during an emergency aid situation.

Download a copy of State v. Boretsky.

Category: Muni-Mail Archive

DWI: Engine Off, Keys in Console Not Operation – State v. Knolmayer (UNP)

In today’s UNPUBLISHED Appellate Division decision, State v. Knolmayer, the Court ruled that a defendant seated in a legally parked vehicle behind the wheel with the engine off and the keys located in the center console was NOT deemed to be operating a motor vehicle for purposes of a drunk driving prosecution under NJSA 39:4-50(a).

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

Category: Muni-Mail Archive

Vague Reference to Miranda Warnings Insufficient – State v. Elwiski

Yesterday’s Appellate Division decision in State v. Elwiski provides an excellent review of the current state of the law regarding Miranda issues. In this case, the court was not satisfied that vague testimonial statements from a police officer such as “I read him his rights” or “I advised him of his rights” were sufficient as a matter of law to prove beyond a reasonable doubt that the defendant had made a knowing and intelligent waiver of the right to remain silent.

This case also explores the public safety exception to Miranda as utilized in New Jersey.

This decision may not be the last word on the issues in this matter. It should be noted that there is a dissent in the case. Accordingly, the defendant is entitled to an appeal as of right to the Supreme Court.

Click here to download a copy of State v. Elwiski.

Category: Muni-Mail Archive

Expunged Conviction Bars Forfeiture of Public Office – In re Nunez

Normally, conviction of a crime of the third degree requires forfeiture of public office by a public employee. However, in today’s Appellate Division decision, In re Forfeiture of Public Office of Nunez, no party moved before the court for forfeiture at the time of the defendant’s sentencing. Moreover, it appeared that the sentencing judge was not aware that the defendant was a public employee. The criminal conduct in the defendant’s case did not “touch upon his office.”

In time, the defendant completed his sentence, waited the required 10 years and then filed a motion to expunge his conviction. His application was granted and the conviction was expunged.

Subsequently, the defendant had a dispute with his public employer which resulted in the employer seeking forfeiture some 14 years after the conviction.

The Appellate Division ruled that since an expunged conviction is deemed not to have occurred, there were no grounds to consider a forfeiture based upon the expunged conviction.

Please note that this outcome could not occur in a circumstance where the criminal misconduct touched upon the public employee’s office. Such a criminal conviction is not subject to expungement. See NJSA 2C:52-2(b).

Download a copy of In re Forfeiture of Public Office of Nunez.

Category: Muni-Mail Archive