Monthly Archives: April 2009
A judge of the Superior Court has acquitted a defendant on a drunk driving charge following a municipal appeal based upon a violation of the so-called “20-minute observation” rule. In an April 16th opinion captioned State v. Filson, Mercer County Judge Mitchell Ostrer found that the officer who operated the Alcotest did not continuously observe the defendant for the required 20-minutes before administering the breath test. The break in observation occurred when the officer left the testing room to remove a cell-phone that had been in possession of the defendant.
Judge Ostrer’s opinion contains an in-depth analysis of the reasons behind the 20-minute observation rule and a compilation from around the nation on how this issue is treated in other jurisdictions.
The opinion in Filson has not been approved for publication. Accordingly, use of this decision should be made in strict conformity with Rule 1:36-3. Because the case was resolved by way of acquittal, it is unlikely it will be reviewed by the Appellate Division due to issues related to double jeopardy. (See generally State v. Costello, 224 N.J. Super. 157 (App. Div. 1988))
Download a copy of State v. Filson.
On June 16th, the New Jersey Supreme Court will hold oral argument in the Matter of Richard M. Sasso, former judge of the Bridgewater Township Municipal Court. In a presentment released on Thursday by the Advisory Committee on Judicial Conduct (ACJC), the former judge is accused of being drunk while on the bench, abusing and bullying attorneys and litigants who appeared before him through contempt powers, using his position as a judge to avoid being kicked out of a go-go bar while intoxicated and representing a political subdivision of a municipality where he served as judge.
Apart from any formal discipline that might be imposed by the Supreme Court, the ACJC also recommended that the respondent be barred from holding judicial office for life. On June 16th, the respondent will have an opportunity before the Supreme Court to contest the ACJC findings as reported in the presentment and/or to argue for a lesser quantum of discipline based upon mitigating factors.
In New Jersey, all final discipline on matters related to judicial misconduct must be imposed by the Supreme Court.
Download a copy of the presentment in In re Sasso.
In yesterday’s decision from the Appellate Division in State v. Finesmith, the Appellate Division adopted a new rule of procedure for police agencies that conduct searches under the authority of a search warrant. The new procedure, known in federal law as the “reasonable continuation doctrine” permits the police to temporarily suspend a residential search undertake through the authority of a search warrant and later return to the scene and re-enter the residence for the purpose of continuing the search for evidence. In order to do this, the police must establish that the second search was a continuation of the original search and that the subsequent decision to conduct a second entry was reasonable under the totality of the circumstances.
The facts before the Court in Finesmith involve a search under a warrant where the police sought criminal evidence contained on a laptop computer. The police suspended the initial search when they could not locate the computer. However, the police later developed additional information as to where the laptop was located. With this new information in hand, the police returned to the residence two hours later, re-entered and secured the laptop.
Although the reasonable continuation doctrine has been in the federal law for many years, the opinion in Finesmith marks the first time it has been authorized under New Jersey state law.
Download copy of State v. Finesmith.
In a 5-4 decision this morning, the United States Supreme Court announced a major change to the law related to the search of a motor vehicle following the arrest of a recent occupant. In Arizona v. Gant, the Justices ruled that police may search a motor vehicle following the arrest of a recent occupant only if the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. The Court also ruled that a search for evidence inside the vehicle following an arrest will be considered constitutionally valid only when it is reasonable for the police to believe that evidence relevant to the offense triggering the arrest might be found within the vehicle.
The facts in Gant involve a driver who was stopped by the police and arrested for driving on the revoked list. The police removed him from the vehicle, and secured him inside of a police car. The police then conducted a search of the vehicle incident to the arrest and located a controlled, dangerous substance.
In analyzing the facts, the Court found that since the defendant had been removed and secured in a police car in handcuffs, he had no possibility of grabbing any type of weapon from the vehicle. Moreover, the police could not reasonably locate any evidence related to the offense of driving on the revoked list by searching the vehicle.
Today’s Supreme Court’s decision in Gant dramatically changes the state of the prior law as announced some 28 years ago in New York v. Belton, 453 U.S. 454 (1981). The rule in Belton suggested that police could automatically undertake a search of a motor vehicle for weapons and evidence every time a recent occupant had been arrested. In the years since Belton was published, it has been the subject of widespread criticism by Courts of Appeal and legal scholars. Indeed, the New Jersey Supreme Court noted (and detailed) this criticism of Belton as early as 1994 in State v. Pierce, 136 N.J. 184 (1994). Ultimately our state Supreme Court completely departed from the holding in Belton on state constitutional grounds in State v. Eckel, 185 N.J. 523 (2006).
Thus, although today’s holding will not affect current police procedures in New Jersey due to our state Supreme Court’s holding in Eckel, the ruling will dramatically affect thousands of police agencies throughout the rest of the country where the Belton rule has been the prevailing law.
Download a copy of Arizona v. Gant.
In a complaint dated April 1st and released last week, the Advisory Committee on Judicial Conduct (ACJC) has begun proceedings against Superior Court Judge James B. Convery. In the complaint, the ACJC Disciplinary Counsel alleges that in two different cases, the Judge made a series of spontaneous “jokes” from the bench which had the net effect of insulting parties, offending the attorneys, and creating the appearance of racial bias in his courtroom. The complaint goes on to charge that the Judge’s conduct constituted violation of several Canons of the New Jersey Code of Judicial Conduct and of the Rules of Court.
Judge Convery will now the opportunity to defend himself by filing an answer to the complaint and having the matter tried before the ACJC. All final judicial discipline in New Jersey is imposed by the Supreme Court.
Download a copy of the ACJC complaint In re Convery.
The Supreme Court has scheduled a hearing on Supreme Court Committee reports for Tuesday, May 19, 2009, in the Supreme Court courtroom, Hughes Justice Complex, Trenton. The hearing will begin at 9:00 a.m. and will cover the following 2007-2009 reports previously published and posted for comment:
Among the Rule Reports that will be considered at that time is the Report of Municipal Court Committee. Any member of the public may personally address the Court on an issue related to the Rules.
Among the many proposed new Rules affecting municipal court will be:
* Issuance of complaint/summonses by Code Enforcement Officers without judicial review
* Pretrial conference through the use of telephone or video link
* Exchange of discovery via e-mail or web sites
* Comprehensive procedures for the issuance of subpoenas in municipal court
* New Procedures to advise defendants who wish to be tried by the court without an attorney
* Elimination of the 5-year time limitation in Laurick application
* Change of venue on Laurick applications to the court where the current dwi case is pending
* Provide the municipal court jurisdiction to hear a motion to reconsider (R. 1:7-4) after an appeal has been filed
* Permit prosecutors to use plea bargain forms for all offenses
Anyone who wishes to speak at the May 19 hearing should notify the Clerk of the Supreme Court in writing by Friday, May 8, 2009, at the address set forth below. The request must specify the proposal(s) on which the individual seeks to speak and whether the speaker will be representing an organization. Please note that the limit on each speaker’s presentation is five minutes. The address is:
Clerk of the Supreme Court
Supreme Court of New Jersey
Hughes Justice Complex
P.O. Box 970
Trenton, New Jersey 08625-0970
Requests to speak at the hearing also may be made by e-mail to the following address: .
Download a copy of the Municipal Court Committee Report.
In a complaint dated April 1st and released Monday, the Advisory Committee on Judicial Conduct (ACJC) has charged Superior Court Judge James Citta with a wide variety of violations of the State’s Code of Judicial Conduct based upon his comments to defendants in two cases. In one matter, involving the sentencing of a defendant who had been convicted of a domestic violence-related, attempted murder, the Judge noted that the defendant was a “pathological liar” who would not know the difference between the truth and a lie if it hit him in the face.
In another case, the judge was cited by the ACJC for bias against a defendant based upon his status as a non-English speaking, Mexican illegal alien. The judge also complained on the record about the special accommodations the defendant required as a result if his limited English skills and expressed a desire to immediately deport him back to Mexico.
Judge Citta will now have an opportunity to file an answer to the complaint and thereafter have the matter tried before the ACJC. The imposition of all final judicial discipline is solely vested in the New Jersey Supreme Court.
Download a copy of the ACJC complaint in In re Citta.
On Friday, the Appellate Division ruled that when a local municipal court judge is not available to consider a search warrant application from the police, the warrant may be lawfully reviewed and issued by a judge in another town in the same county. In the underlying case, State v. Broom-Smith, the police sought judicial review by their municipal court judge to authorize a search warrant for a property located in the municipality. However, the local court was not in session that day and the judge was not readily available. Accordingly, the police went to the judge in a neighboring town and submitted their search warrant application to that judge who was holding a municipal court session. The neighboring judge signed the warrant. Execution of the search warrant yielded evidence of criminal activity.
Although the Rules of Court limit the authority of municipal court judges to issue search warrants for property located within their local territorial jurisdictions, the Appellate Division construed the Rules of Court to permit another municipal court judge in the same county to consider the warrant based upon a cross-assignment order signed by the vicinage assignment judge. Such an order permits every municipal court judge in the vicinage to serve as an acting judge of every other municipal court in the vicinage.
This case may have enormous significance when and if the Supreme Court authorizes municipal court judges to consider and issue telephonic search warrants following the pending task force report the Supreme Court order following the publication of State v. Pena-Flores, 198 N.J. 6 (2009)
Download a copy of State v. Broom-Smith.
This morning, the New Jersey Supreme Court proposed a change to the Rules of Evidence that would provide a new hearsay exception which is commonly referred to as “forfeiture-by-wrongdoing.” Under this exception, the out-of-court statements of a witness who does not appear to testify at trial will become admissible if it can be shown that the witness’ failure to appear was wrongfully contrived by the Defendant. This rule of law is recognized federally and is based upon the philosophy that a Defendant should not be able to profit at trial from his own wrongdoing by procuring the absence of a witness through threat, force, intimidation or otherwise.
In proposing this change to our Rules of Evidence, the Justices noted the problem of witness intimidation in cases involving the prosecution of gang members, organized crime figures, drug racketeers and the like. It is also a problem in domestic violence cases, as well. The Court concluded that a Defendant who wrongfully procures the absence of a witness against him has forfeited his right of confrontation under both the federal and state Constitutions.
Download a copy of State v. Byrd.