Monthly Archives: November 2008

Here is the Correct Way to Sue Your Criminal Defense Attorney – McKnight v. OPD

In yesterday’s Supreme Court decision in McKnight v. Public Defender, the Justices established the correct procedure to be utilized by defendants who wish to file malpractice suits against their criminal defense attorneys. In McKnight, the defendant, a foreign national, was indicted for an act of domestic violence. While represented by the public defender, he entered a plea of guilty and was sentenced to prison. As a result of his conviction, the United States sought to deport him, although his native country refused to take him back. Thereafter, the defendant sought post-conviction relief, claiming that he had not been informed of the collateral consequence of deportation as a part of his conviction. The post-conviction relief petition was granted and the defendant ultimately resolved his case anew by pleading guilty to a disorderly persons’ level offense. By this time, the defendant had served half of his 3-year sentence.

Following the conclusion of his case, the defendant filed a notice of tort claim and a law suit against the Office of the Public Defender, claiming negligence and legal malpractice. The public defender claimed that the complaint and notice of tort claim had been filed years out of time. The Supreme Court ruled, however, that in a legal malpractice action brought by a criminal defendant against the attorney who represented him, the claim for malpractice does not accrue and the statute of limitations does not begin to run until the criminal defendant receives relief through some form of exoneration. Exoneration may consist of vacating a guilty plea and dismissal of the charges, entry of judgment on a lesser offense after spending a substantial time in custody following conviction for a greater offense, or any other disposition more beneficial than the original judgment. The criminal defendant has to be exonerated to the point of being able to show some injury caused by the alleged malpractice, whether that relief is dismissal of the charges, acquittal on retrial, conviction of a lesser included offense, or other such relief.

As a result of this case, the Justices will also consider a change to the Rules of Court that will require a notice to be send to the subject attorney when a claim of ineffective assistance of counsel has been made in a post-conviction relief petition.

Download a copy of State v. McKnight.

Drifting within a Lane Supports MV Stop by Cops – State v. Woodruff

A frequent justification for motor vehicle stops that result in drunk-driving arrests involves the drifting or weaving of a motor vehicle within a lane of traffic in violation of N.J.S.A. 39:4-88(b). In yesterday’s Law Division opinion, State v. Woodruff, a New Jersey court construed the provisions of this part of the statute for the first time in a published decision. The Law Division held that it is not necessary for the State to demonstrate that weaving in a lane would affect the safety of other drivers. The Court also held that two instances of observed weaving within a lane constituted sufficient reasonable suspicion for the officer to effect a motor vehicle stop of the offending auto.

Download a copy of State v. Woodruff

No probable cause needed to search student cars at school – State v. Best

In yesterday’s Appellate Division decision captioned State v. Best, the Court decided that a student’s motor vehicle that is parked on school property may be searched by school officials based upon a mere reasonable suspicion that illegal drugs or other contraband are contained within the vehicle. Neither probable cause nor a search warrant is required for this type of search. The foundation for the Court’s holding is based upon the vastly diminished expectation of privacy to which students are subjected while on school property. This diminished expectation of privacy has previously resulted in judicial holdings that authorized searches of school lockers and book bags based upon reasonable suspicion and random drug tests of students engaged in extra-curricular activities.

Download a copy of State v. Best.

N.J. Cops Don’t Have to Read All of Para 36 in Every Case – State v. Spell

In this morning’s decision by the Supreme Court in the case of State v. Spell, the Justices ruled that the police are not required to read the second portion of the statement advising DWI suspects of their obligation to provide a breath sample (commonly referred to as “paragraph 36”) in every case. In reversing the Appellate Division, the Court went on to hold that New Jersey law only requires the reading of the second portion of paragraph 36 when the suspect asks for an attorney or provides an ambiguous answer to the law enforcement request to submit to the test. In those cases where the defendant flatly refuses to provide a breath sample, it is not necessary to read the second portion of the warning.

The Court’s decision renders moot a serious constitutional issue raised before the Appellate Division related to the authority of the judiciary to dictate police procedures.

Download a copy of State v. Spell.