Monthly Archives: May 2006

New Statewide Bail Schedule Released by AOC

The Administrative Director of the Courts today released an amended statewide bail schedule. Today’s schedule replaces the previously issued schedule from last fall.

Download a copy of the new bail schedule.

Category: Muni-Mail Archive

Consent-once-removed doctrine is time sensitive – State v. Penalber

The so-called “consent-once-removed” doctrine was developed by the New Jersey Supreme Court in State v. Henry 133 N.J. 104 (1993). This exception to the warrant requirement generally applies when an undercover police officer has been invited into a dwelling and while inside develops probable cause to arrest the defendant. The doctrine permits the undercover officer to leave the dwelling and return a short time later with a sufficient number of back-up officers to effect the arrest. Under the doctrine, the consent given for the initial entry by the undercover officer is deemed to continue for a short time and will render a subsequent warrantless entry by the arrest team as consensual.

In today’s Appellate Division decision, State v. Penalber, two undercover police officers made a purchase of CDS from a pair of drug dealers inside an apartment house common hallway. After completing the sale, the two officers and their arrest team back-up returned to the police station to plan their next move. After about 30 to 35 minutes, the police officers returned in force to the apartment house without either an arrest warrant or a search warrant. Upon arrival, they saw one of the drug dealers inside an apartment through an open door. The police entered the apartment and effected the arrest of the drug dealer as well as the defendant who was processing cocaine in another room of the apartment.

In holding that the evidence seized from the apartment be suppressed, the Court found that the “consent-once-removed” exception to the warrant requirement did not apply in this case due to the length of time (30 to 35 minutes) that passed between the initial consensual entry by the undercover officers and the subsequent entry and search by the arrest team.

This case also has a detailed discussion of the expectation of privacy in apartment house common areas and a detailed review of the law related to warrantless entries of residences.

Download a copy of State v. Penalber.

Category: Muni-Mail Archive

N.J. DWI or Penna ARD Not a Bar to PTI – State v. McKeon

This morning’s Appellate Division decision in State v. McKeon makes it clear that the statutory bar to admission into PTI based upon a prior diversion from the criminal justice system only applies to diversions that occurred in New Jersey. In McKeon, the defendant sought diversion from a criminal charge in New Jersey through PTI. His application was denied based upon a prior diversion in Pennsylvania on a first offense DWI through that state’s ARD program. The defendant also had a second DWI in Pennsylvania following his ARD diversion.

The State argued that the prior diversion under ARD in Pennsylvania constituted a statutory bar to PTI in the same way that a conditional discharge or prior PTI disposition would bar a later entry into PTI.

The Appellate Division ruled that a diversion that occurs in another state does not constitute a statutory bar to PTI. Only a prior PTI or conditional discharge granted in New Jersey would be regarded as such a bar.

Moreover the Court reasoned that under New Jersey law, a drunk driving offense would not statutorily disqualify a defendant from PTI consideration since DWI is not considered an offense within the meaning of the New Jersey Code of Criminal Justice. Since a DWI in New Jersey would not disqualify a defendant from PTI, there is no logical reason why a DWI in Pennsylvania should serve as a statutory bar either.

Download a copy of State v. McKeon.

Category: Muni-Mail Archive

Simple Assault Justified Warrantless Home Entry – Brigham v. Stuart

In today’s decision by the United States Supreme Court captioned Brigham City v. Stuart, the justices ruled that a simple assault within a home that was witnessed by the police from outside constituted sufficient basis for the officers to enter the residence without a warrant. Despite the minor nature of the offense, the justices ruled that it was reasonable for the officers to come to the aid of the party being assaulted prior to an escalation of the violence and the attendant risk of more serious injury.

Download a copy of Brigham City v. Stuart.

Category: Muni-Mail Archive

Use of Flash-bang Grenade by Police Questioned – State v. Fanelle

One of the tactics employed by police agencies when they serve search warrants is the use of the so-called “flash-bang” device. This non-lethal, explosive device creates an enormously loud noise and blinding light which is intended to briefly stun, disorient and distract the occupants of an indoor location while the police make a forced entry….typically under the authority of a “no-knock” search warrant.

In today’s Appellate Division decision, State v. Fanelle, the defendant challenged the use of a “flash-bang” device during the execution of a judicially authorized “no-knock” search warrant at his residence. The defendant also sought prior judicial authority for the use of this device.

The Appellate Division flatly refused to require prior judicial approval for the use of this tactical device. However, the Court also decided to remand the case to the Law Division for a further hearing on the specifics of the device and the establishment of a complete record upon which to assess whether the use of flash-bang devices is reasonable when police serve search warrants.

Download a copy of State v. Fanelle.

Category: Muni-Mail Archive

Excited Utterance Not Testimonial under Crawford – State int J.A.

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination. The so-called Crawford issue has only been discussed once before in any detail in a New Jersey published decision. See State v. Godshalk, 381 N.J. Super. 326 (Law Div. 2005) – (Business Records not testimonial with the meaning of Crawford.) Today’s Appellate Division decision in State in the Interest of J.A. presents the first time that a New Jersey appellate court has discussed Crawford in any meaningful detail.

In the J.A. case, the State introduced hearsay testimony in the form of what constituted either an excited utterance or a present sense impression. The defendant objected that the admission of this hearsay evidence violated the defendant’s confrontation rights under Crawford. Although the hearsay declarant was unavailable, he had not been subject to prior cross examination. Moreover, the defendant maintained that the hearsay statement was clearly testimonial in that it was given for the purpose of use by the prosecution at a criminal trial.

The Appellate Division rejected this argument and ruled that in determining whether a hearsay statement is testimonial in the Crawford sense, the court must look to the type of statement, the intent of the declarant, and the purpose of the official procedure used to elicit the statement. These factors must be considered under a totality of the circumstances analysis with the goal of deciding whether an objective witness would believe that his statements would later be used by the prosecution at a criminal trial.

In the instant case, the Appellate Division ruled that the brief, spontaneous statement given by the hearsay declarant to the police did not have the indicia of a formal, structured statement to the police.Raher, it was merely the report of a crime to help law enforcement officers. Under the totality of the circumstances, an objective witness would not have believed that the statement he gave would have been used by the prosecution at trial. Despite the importance of this decision, it should be read and regarded with considerable caution at this point. The Appellate Division relied in large measure on two out-of-state supreme court cases: Washington v. Davis, 111 P. 3d 844 (Wash.2005) and Hammon v. State, 829 N.E. 2d 444 (Ind. 2005). Each of these cases was appealed to the United States Supreme Court and argued as companion matters on March 20th of this year under the captions Davis v. Washington and Hammon v. Indiana. The Justices will decide these matters at some point prior to the end of the current year’s term on July 1st. Accordingly, the basis for the Appellate Division’s holding may be subject to change within the next 60 days by virtue of United State Supreme Court action.

Download a copy of State in the interest of J.A.

Category: Muni-Mail Archive