Monthly Archives: March 2008

Search Warrant Delay of 15 to 20 Seconds Between Knock/Announce & Residential Entry Ok – State v. Rodriguez

In this morning’s Appellate Division decision in State v. Rodriguez, the Court ruled that when serving a residential search warrant, a delay of 15 to 20 seconds between the time the police knock and announce their presence and make entry is reasonable under New Jersey law. The Court listed a number of factors in deciding upon the reasonableness of the time that must pass between knock/announce and residential entry. These include time of day (morning as opposed to middle of the night), nature of the investigation (drugs as opposed to evidence that cannot be easily secreted) and the known elements of danger to the police.

Of additional significance in this case are substantial dicta indicating that the New Jersey Constitution would require suppression as a sanction to law enforcement in those instances where the police violate the knock and announce rule requiring a reasonable period of time between knock/announce and entry. This is important since the United States Supreme Court held last year that under the IVth Amendment, knock and announce violations do not require the suppression of evidence recovered from the residence as a result of the ensuing search.

Download a copy of State v. Rodriguez.

Category: Muni-Mail Archive

More Charges for Alleged Cursing Judge : ACJC

In an amended complaint dated March 18th, the Disciplinary Counsel for the Advisory Committee on Judicial Conduct (ACJC) has alleged additional incidents where the judge utilized profanity. In the amended complaint, the allegation relates to profanity used by the judge while speaking to a female attorney in chambers. (“Did you wake up on the wrong {expletive deleted} side of the bed?”) The amended complaint also claims that the respondent judge told counsel in open court that after he was removed from the Criminal Part of Superior Court for cursing at a lawyer, he told his assignment judge that he could just as easily curse at a civil defense attorney as a criminal defense attorney. The complaint also alleges a pattern of misconduct in that that the respondent judge was cautioned by the ACJC for discourteous conduct toward litigants in 1998.

The initial complaint contended that the respondent judge used the following language in open court to a criminal defense attorney: “I said get the [expletive deleted] out of my courtroom, what the [expletive deleted] don’t you understand, shut the [expletive deleted] up and get the [expletive deleted] out of here. I have a meeting this afternoon.”

The respondent must file an answer to the amended complaint within 20 days. He will then be entitled to a full hearing before the ACJC. Final discipline, if any, in all cases involving judicial misconduct is imposed by the Supreme Court.

Download a copy of the Amended Complaint in In re Giles.

Category: Muni-Mail Archive

DWI Killer May Recover Against Bar Where He Got Drunk – Bauer v. Nesbitt

In this morning’s Appellate Division holding in Bauer v. Nesbitt, the Court ruled that New Jersey common law provides a basis for a person who secretly drank alcoholic beverages in a bar to the point of intoxication to sue the bar where he got drunk due to the bar’s negligent failure to protect him from himself. In Bauer case, an underage person entered a bar with a group of friends. While at the bar he ordered Cokes. These drinks were secretly “spiked” with rum under the table by his friends and knowingly consumed by the youth. Although there was no evidence to suggest that the bar ever directly served him any alcoholic beverages, as time went on at the bar, the youth became visibly intoxicated. He subsequently left the bar and operated a motor vehicle that became involved in an accident that killed of one of his passengers. The young driver was ultimately prosecuted, convicted of homicide and sent to prison.

The Appellate Division concluded that while the driver may have no cause of action against the bar under the Dram Shop Act, NJSA 2A:22A-5, New Jersey common law would recognize a cause of action for negligent supervision against the bar. Even when a bar has not knowingly served alcohol to a patron, it has an affirmative duty to take reasonable steps to ensure that a visibly intoxicated patron will not be injured. Although this cause of action has always been applied in cases involving sexual assaults and other types of violence in bars, as a result of today’s decision, the same common law principles apply in drunk driving cases. In short, regardless of where the drinking occurred, if a jury were to find that the underage drinker was visibly intoxicated while in the bar, it could also conclude that the bar management had an affirmative, common law duty to protect him from the foreseeable risk of injury to himself or others that might flow from an automobile accident.

Download a copy of Bauer v. Nesbitt.

Category: Muni-Mail Archive

Judge Was Drunk on Bench, Bullied & Abused Attorneys & Public : ACJC

In a complaint released this afternoon, the Disciplinary Counsel for the Advisory Committee on Judicial Conduct (ACJC) alleged that a municipal court judge appeared on the bench on several occasions while highly intoxicated and on other occasions bullied and abused attorneys and members of the public. The judge is also accused of public misconduct by utilizing his judicial position to attempt to intimidate members of the public outside of the courtroom.

Prior to the filing of the complaint, the respondent judge had resigned his judicial office. However, consistent with the Rules of Court, the judicial disciplinary process will continue. The respondent judge now has 20 days to file an answer to the complaint. Following the answer, he will be entitled to a full hearing before the ACJC. Final discipline, if any, will be imposed by the Supreme Court.

Download a copy of the ACJC complaint in In re Sasso.

Category: Muni-Mail Archive

Alcotest Reliable Subject to Numerous Procedural Safeguards – State v. Chun

This morning, the New Jersey Supreme Court released its long-awaited opinion in the Alcotest case captioned State v. Chun. In a 131-page, unanimous opinion written by Justice Hoens, the Court ruled that the Alcotest 7110 is a scientifically reliable instrument for determining the blood-alcohol concentration of living human beings. Further, subject to a large number of procedural safeguards, the Alcotest can be utilized in the prosecution of intoxicated operators of motor vehicles in New Jersey courts. The specific technical procedures and safeguards to be utilized in Alcotest cases are set forth at the conclusion of the opinion in a comprehensive Court Order.

Among the many findings and conclusions of the Supreme Court are the following:

1. While a minimum breath sample of 1.5 liters of air is appropriate for most subjects, women over 60 years of age are only required to provide a sample of 1.2 liters of air.

2. There will be no requirement that the state install breath-temperature sensors on the Alcotest instruments now in use.

3. Admissibility of Alcotest results are subject to the same standards that were mandated in Romano v. Kimmelman, 96 N.J. 66 (1983); that is two tests that are within 0.01% of each other. The instrument will have to be re-programmed to provide for this standard. Until that time, the Court provides a form in an appendix to the opinion that can be used to calculate whether the breath-test results are within the required tolerance.

4. As recommended by Judge King in his factual findings, the Alcotest instruments in use should be re-examined and recertified by the State twice per year.

5. The alcohol influence report is admissible in evidence and is non-testimonial within the meaning of Crawford v. Washington.

6. There are twelve documents that must be provided by the State in discovery in every Alcotest prosecution. The precise nature of these documents and their contents are listed in the opinion and set forth in the Court’s order.

7. The manufacturer of the Alcotest must provide training at a reasonable price to the New Jersey defense bar on the operation of the Alcotest.

8. The manufacturer must make public any future revisions to the software that runs the Alcotest through the State Bar Assoc.

9. The Chun “stay order” from January 2006 is now vacated and pending cases are to be resolved in conformity with the Court’s order at the end of the case.

10. The State must establish an on-going Alcotest result database that will be available to the defense bar.

Download a copy of State v. Chun and the relate Order and Appendix.

Category: Muni-Mail Archive

Judge Was In the Picture On Day Mayor Was Arrested for Bribery – ACJC

Earlier today, the Disciplinary Counsel for the Advisory Committee on Judicial Conduct (ACJC) filed a complaint charging a municipal court judge with having violated three canons of the New Jersey Code of Judicial Conduct, as well as Rule 2:15-8(a)(6) (engaging in conduct that tends to bring the judiciary into disrepute). The complaint resulted from a photograph of the judge, taken in the company of his town’s mayor and a councilman and a campaign treasurer. The picture was taken at the mayor’s home on the day the mayor had been arrested on bribery charges. The photograph was subsequently published in a major circulation newspaper in northern New Jersey, along with an article that described the bribery arrest of the mayor. The ACJC complaint alleges that by appearing in the photograph, the respondent judge created an appearance of impropriety that had the capacity to affect the public’s perception of the integrity of the judiciary.

The respondent will now be given an opportunity to file an answer to the complaint and to contest the allegations made against him in a full hearing before the ACJC. All final disciplinary action in New Jersey related to judges must come from the Supreme Court.

Download a copy of the ACJC complaint In Matter of Rodriguez.

Category: Muni-Mail Archive

Retrial on Lesser-Included Offense Ok following Acquittal on Greater Included – State v. Ruiz

This morning, the Appellate Division of Superior Court ruled that it is permissible under New Jersey law to retry a defendant on a lesser-included offense following his acquittal on the greater-included offense at trial. In State v. Ruiz, the defendant was indicted and tried for aggravated manslaughter. The evidence adduced during the trial would have also supported a finding of the lesser-included offense of reckless manslaughter. Accordingly, the judge charged the jury on both offenses.

The jury acquitted the defendant of the aggravated manslaughter charge but, following additional deliberations, hung on the charge of reckless manslaughter. The judge discharged the jury and authorized a retrial of the defendant on the lesser-included reckless manslaughter charge.

The Appellate Division held that a defendant who has been charged with a greater-included offense is on notice that he may also be prosecuted and convicted of any lesser-included offense under the statute. Neither the State or federal constitutions, nor issues of fundamental fairness preclude a retrial for the lesser-included offense.

Download a copy of State v. Ruiz.

Category: Muni-Mail Archive

No Cooperation = No Insurance Coverage in DWI Crash – Hager v. Gonsalves

In Friday’s Appellate Division decision in Hager v. Gonsalves, the Court ruled that the failure of both an insured person and the driver of his vehicle to cooperate with the insurance company that is responsible for providing coverage on the vehicle will permit the company to deny coverage.

In this case, a vehicle owned by the defendant was operated by another person. The driver operated the vehicle while intoxicated and had an accident resulting in significant personal injury and property damage to an innocent third person. Despite the best efforts of the insurance company, neither the owner nor the intoxicated driver would cooperate in any way with the defense of the claim by the injured party.

The Court ruled that people seeking coverage under a policy of automobile insurance have an affirmative duty to cooperate with the insurance company in the defense of any claim made under the policy. When the failure to cooperate results in an “appreciable prejudice” to the insurance carrier, coverage under the policy can be lawfully denied. In the case before the court, the failure to cooperate by both the owner and the intoxicated driver made it impossible for the insurance carrier to determine whether or not the operator was a permissive user of the vehicle. Such evidence might have resulted in a defense to the payment of a claim by the company. Accordingly, the failure to cooperate resulted in an “appreciable prejudice” to the carrier and coverage could be lawfully denied.

Download a copy of Hager v. Gonsalves.

Category: Muni-Mail Archive

Anonymous Tip Will Not Justify Terry Frisk & Auto Search – State v. Matthews

This morning’s Appellate Division holding in State v. Matthews stands for the proposition that an anonymous tip by itself will not provide sufficient evidence of reasonable suspicion to justify either a protective pat-down or a protective search of a motor vehicle. In Matthews, the police responded to an anonymous telephone tip of a man flashing a gun near a particular car in the middle of the night. The police responded to the scene and found a car precisely matching the description given in the tip. The police conducted a pat-down of the occupants of the vehicle and then conducted a search of the passenger compartment. The police found a gun hidden inside the vehicle. The Appellate Division ruled that although the police were justified in detaining the vehicle and its occupants for questioning, the uncorroborated, anonymous tip did not provide sufficient justification to conduct a Terry frisk of the occupants or to search the interior of the vehicle for weapons.

Download a copy of State v. Matthews.

Category: Muni-Mail Archive

Supreme Court Establshes New Ticket Dismissal Procedures – Directive 02-08

As a result of several recent incidents involving the purported improper disposition of tickets by municipal court judges, the Supreme Court has completely revised the procedures that are to be utilized when tickets are to be dismissed. The general goals to be accomplished by the Directive are to ensure transparency and accountability in the dismissal process. All dismissal applications must be made on the record with the active participation of the prosecutor. Police accountability is also required for tickets that were issued in error, are incomplete, spoiled or otherwise invalid.

Download a copy of the Dismissal Directive 02-08.

Category: Muni-Mail Archive