Monthly Archives: July 2010

Muni-mail – Attorney Bartered Legal Work for Sex – In re Witherspoon

[07-29-10 – 9:29 pm] This morning, the New Jersey Supreme Court ordered a one-year suspension from practice for an attorney who sought to barter professional legal services and discount fees in exchange for sexual favors from several of his female clients. In this disciplinary case, captioned In re Witherspoon, the Justices in the majority also ordered that the respondent complete an approved course in sensitivity training and t he institution of appropriate accounting controls.

This case is of enormous importance for a number of reasons. First, under current practice, it is only in the rarest of circumstances that the Supreme Court publishes a disciplinary opinion. Moreover, typically, disciplinary decisions are per curiam and seldom, if ever, have dissents. However, in the Witherspoon matter, two of the Justices dissented from the majority opinion written by Justice Hoens and recommended disbarment as the only appropriate discipline. The majority used this case to underscore that, apart from the knowing misappropriation of entrusted funds, New Jersey attorney disciplinary law has no bright-line rules that require disbarment in every case. Rather, each case is fact-sensitive and will be decided on its own merits. Finally, this case contains a detailed compendium and extensive review of how the Court has treated attorney sexual misconduct disciplinary cases over the past 60 years.

Download a copy of In re Witherspoon.

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Muni-mail – Firms with Judges Banned from Political Contributions – In re Boggia

[7/27/10 – 10:12 am] This morning, in a landmark decision, the New Jersey Supreme Court banned all law firms in our state who employ a part-time judge from making political contributions. Partners and associates of such a law firm remain free to make political contributions from their own personal accounts using their personal funds. In announcing this ruling, captioned In re Boggia, the Justices acquitted the respondent judge of any ethical violations. The respondent had been accused of ethical violations as a result of campaign contributions made by his law firm partner against his express instructions. The Supreme Court also referred this new prohibition on law firm activities to the Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial Activity and ask them to develop appropriate rules to implement today’s decision.

Download a copy of In re Boggia.

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Muni-mail – Evidence Seized during Emergency Okay

[Jul 23 2010] In this morning’s Supreme Court opinion captioned State v. O’Donnell, the Justices ruled that the seizure of criminal evidence discovered by the police in plain view during an effort to provide emergency aid inside of a residence is reasonable under the Fourth Amendment.

Download a copy of State v. O’Donnell.

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Muni-mail – New Police Procedures Mandated for Protective Sweeps – State v. Davila

[07/17/10 – 11:38 pm] On July 14th, the New Jersey Supreme Court, in a case captioned State v. Davila, announced a new set of procedures that police must follow when conducting a protective sweep while inside a residence. The case involved a protective sweep undertaken by officers investigating a multiple-murder case. The police were invited to enter an apartment during the investigation. At that stage, the police did not have probable cause to either obtain a search warrant or effect an arrest. In its unanimous decision, the Justices reasoned that a protective sweep conducted on private property is not per se invalid merely because it does not occur incident to an arrest. Law enforcement officers may conduct a protective sweep only when (1) the officers are lawfully within private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion t hat the area to be swept harbors an individual posing a danger. The sweep will be upheld only if it is (1) conducted quickly, and (2) restricted to areas where the person posing a danger could hide. When an arrest is not the basis for entry, the police must be able to point to dangerous circumstances that developed once the officers were at the scene.

Download a copy of State v. Davila.

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Muni-mail – Supremes sets standards for suspending D/L – State v. Moran

[07-13-10 – 10:43] For the second day in a row, the New Jersey Supreme Court has released a landmark opinion that will dramatically affect the municipal courts. In this morning’s decision in State v. Moran, the Justices, for the first time, set forth standards that judges are to use when deciding whether (and how long) to suspend a defendant’s driving privileges under NJSA 39:5-31. This statute authorizes a license suspension for any “willful” violation of Subtitle 1 of Title 39, the state’s motor vehicle code. In addition to ruling that 39:5-31 applies to situations involving enhanced recklessness, the justices mandated that sentencing judges weigh, evaluate and spread on the record a number of factors before imposing a license suspension, including:

1) the nature and circumstances of the defendant’s conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage;

2) the defendant’s driving record, including the defendant’s age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions;

3) whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant’s driving record indicates that there is a substantial risk that he or she will commit another violation;

4) whether the character and attitude of the defendant indicates that he or she is likely or unlikely to
commit another violation;

5) whether the defendant’s conduct was the result of circumstances unlikely to recur;

6) whether a license suspension would cause excessive hardship to the defendant and/or dependents; and

7) the need for personal deterrence.

Any other relevant factors clearly identified by the court also may be considered.

In addition to the foregoing, the Court reasoned that comparisons to motor vehicle statutes that impose mandatory license suspensions also may be a useful guide in some cases. It is not necessarily the number of factors that apply but the weight to be attributed to a factor or

Download a copy of State v. Moran.

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Muni-mail – DWI & Related Jail Terms May Not Exceed 180 days – State v. Federico

[07/12/10 – 10:53 am] In a decision handed down this morning, the Appellate Division ruled in State v. Federico that jail terms imposed as a result of multiple traffic ticket convictions arising out of a single incident may not exceed 180 days in municipal court. The case involved a defendant who was convicted of a third offense DWI and driving on the revoked list as a result of a prior DWI conviction. The each of these offenses requires a jail term and the combination of the two terms exceeded 180 days in municipal court. However, the Appellate Division ruled that the maximum sentence to which the defendant could be sentenced was 180 days. In arriving at this holding, the Court noted that federal constitutional law would permit a sentence exceeding 180 days following the conviction for a variety of petty offenses stemming from the same incident. However, as a matter of long-standing policy, in the absence of the offer of a jury trial, 180 days of incarceration is the maximum permitted in our state for convictions of multiple petty offenses arising from the same incident.

Download a copy of the case, State v. Federico.

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Muni-mail – Refusal Warning Must be in Suspect’s own Language – State v. Marquez

[07/12/10 – 10:21 am] In a stunning 4-3 decision, the New Jersey supreme Court ruled this morning in State v. Marquez that a person who has been arrested for drunk driving has the right to be informed of the obligation to submit to a breath test in the language he speaks. The Court’s holding reversed an Appellate Division decision which had upheld the conviction of a defendant who had been read the standard warning statement (commonly known as paragraph 36) in English even though he only spoke Spanish. In order to implement the new procedures for those who speak foreign languages, the Court will rely upon the efforts of the Attorney General and the Motor Vehicle Commission to provide a means of having paragraph 36 available in a wide variety of foreign languages spoken in our state.

Download a copy of the case, State v. Marquez.

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Muni-Mail – Trooper Had No Exigent Circumstances to Support Truck Search – State v. Pompa

[07/03/10 – 6:30 pm] In an opinion released Friday by the Appellate Division, the Court ruled that although an investigating trooper had ample probable cause to conduct a search of an 18-wheel truck he had lawfully stopped on Interstate 78, the criminal evidence he recovered as a result of the search had to be suppressed because the trooper did not demonstrate the exigent circumstances required in New Jersey under the automobile exception to the warrant requirement.

This decision is a critically important holding in the line of cases following State v. Pena-Flores, 198 N.J. 6 (2009). It marks another step in the development of the court’s analysis as to what constitutes sufficient exigency under New Jersey law to support the automobile exception.

Download a copy of the case, State v Pompa.

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Muni-mail – App Div : “Give ’em once last chance to take the test” – State v. Schmidt

In an opinion released yesterday by the Appellate Division, the Court ruled that before charging a refusal violation, the police should read the second part of the DWI standard statement (paragraph 36) to defendants in those circumstances where the defendant gives an initial, unqualified consent to submitting a breath sample and thereafter is unable or unwilling to provide an adequate sample for analysis.

Download a copy of the case, State v. Schmidt.

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