Monthly Archives: May 2012

Muni-mail Practice Pointer: Factors to consider in traffic sentencing

 As a public service, beginning today, from time to time, muni-mail will present you with certain advanced practice pointers that will be of help to those who practice in the municipal courts of our state.

Rule 7:9-1(c) which was adopted by the Supreme Court on September 1st, requires that In non-criminal code cases involving a consequence of magnitude, at the time the sentence is imposed, the court state its reasons for imposing sentence, including the findings for withholding or imposing imprisonment, driver’s license suspension, fines, or restitution.

Those findings are based upon a series of aggravating and mitigating factors that are set forth in State v. Moran, 202 NJ 311, 328-329 (2010). Here is a list of those factors from the case.

Moran Aggravating/Mitigating Factors:

1. The driving conduct posed a high risk of danger to the public;
2. The driving conduct caused physical harm or property damage;
3. The defendant’s driving record, including the defendant’s age and length of time as a licensed driver,
4. The number, seriousness, and frequency of prior infractions;
5. Has the defendant was infraction-free for a substantial period before the most recent violation?
6. 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;
7. The character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation;
8. The defendant’s conduct was the result of circumstances unlikely to recur;
9. A license suspension would cause excessive hardship to the defendant and/or dependants;
10. Any other relevant factor clearly identified by the court may be considered as well.

In evaluating these factors (which apply both in municipal and the Superior Courts), it is not necessarily the number of factors that apply but the weight to be attributed to a factor or factors.
It is probably a good idea to print out and keep a list of these factors available for easy reference during a traffic sentence that will involve a consequence of magnitude.

Category: Muni-Mail Archive

Muni-mail – Supremes Uphold “Animal House” Ruling – State v. Kaltner

 [05/01/12 – 3:39 pm] This morning, in a per curiam decision, the New Jersey Supreme Court affirmed the Appellate Division holding in the so-called “Animal House” case of State v. Kaltner. [State v. Kaltner, 420 NJ Super. 524 (App. Div. 2011)] In Kaltner, the police responded to the scene of a wild, raucus college party at a residence. In an effort to locate a responsible person at the party, one of the investigating officers travelled to the third floor of the structure where he spied certain controlled substances that ultimately resulted in the defendant’s arrest. Both the trial court and Appellate Division ruled that the search by the police on the third floor had been unreasonable and ordered suppression of the seized evidence.

Analysis: There are several critically important legal issues that flow from the affirmation of this Appellate Division holding.

1. By affiriming this holding, the Supreme Court gave no stamp of approval to the use of the community caretaking exception to the warrant requirement in the context of residential searches. Apart from Kaltner, only one prior decision from the Appellate Division recognized this exception outside of the motor vehicle context [State v. Witczak, 421 NJ Super. 180 (App. Div. 2011)]. The New Jersey Supreme Court indirectly approved it in an older case, State v. Bogan, 200 NJ 61 (2009).

2. The holding in this case draws attention to the decision by the Court (as initially announced by the Appellate Division in Witczak, supra) to depart from IVth Amendment jurisprudence expressed by the Third Circuit [Ray v. Township of Warren, 626 F. 3rd 170 (2010)] which holds that since the United States Supreme Court has never ruled that the community caretaking exception applies outside the area of automobile searches, this exception does not apply to the search of a residence. Accordingly, federal and state law in this circuit are markedly different on this issue, a fact that may be used in future cases by law enforcement in deciding where to prosecute a case that violates both state and federal law.

Download a copy of State v. Kaltner.

Category: Muni-Mail Archive