Monthly Archives: February 2013

Muni-mail – Mistaken directed verdict invokes double jeopardy

[2/25/13 03:13 PM] Last week’s judgment in Evans v. Michigan in the U.S. Supreme Court presents a relevant wrinkle for New Jersey attorneys.   In Evans, the judge made a mistake about state law that resulted in acquittal.

In the 8-1 opinion by Justice Sotomayor (with the lone dissent filed by Justice Alito), the Court says Michigan cannot retry a case thrown out by a trial judge by mistake (the mistake in Evans came when the judge misstated the level of proof required of the state prosecutors).

The Double Jeopardy Clause bars retrial after a court-directed acquittal, even if the acquittal was erroneous.

To download the opinion, click below.

Category: Muni-Mail Archive

Muni-mail – Even a Stupid Dog Can Provide PC to Search: SCOTUS

[2/19/2013 2:39 PM] This morning, the United States Supreme Court ruled that even a stupid, incompetent, drug-sniffing dog who makes lots of mistakes can provide probable cause to search a motor vehicle. In a case captioned Florida v. Harris, the Justices ruled that a dog’s track record, training and experience are simply part of the totality of the circumstances and do not conclusively demonstrate a lack of probable cause to search a motor vehicle when the dog turns out to be wrong.

To download a copy of Florida v. Harris, click here:

Category: Muni-Mail Archive

Muni-Mail – Head-smash flashlight is protected from discovery – State v. Kelsey

[2/13/13 3:28pm]  In this morning’s Appellate Division decision in State v. Kelsey, the Court ruled that a court order requiring a criminal defendant to turn over a piece of physical evidence to the prosecutor violates the right to remain silent.  In the case, a brawl at a local bar resulted in an assault where the defendant allegedly used a flashlight to beat a victim.  The prosecution sought a court order compelling the defendant to turn the flashlight over to the State. The Appellate Division held that such an order would violate NJRE 503 and the general right of New Jersey defendants to remain silent.

The following is a link to State v. Kelsey:

Category: Muni-Mail Archive

Muni-Mail – More New Muni & Crim Rules Proposed

[2/12/13 03:48pm] The New Jersey Supreme Court has released reports from the Criminal Practice and Municipal Court Practice committees.  The reports detail proposed new rules for these two practice areas.  If adopted, they will go into effect on Sept. 1 of this year.  The Supreme Court invites comment by email or direct mail, which must be signed.  Public comments are due April 1, 2013.  The Supreme Court will hear public hearings on the rules in May.

You can link to the new rules by clicking on the following ..
Municipal Court rules link:

Criminal Practice link:

Category: Muni-Mail Archive

Muni-Mail – Judge’s Trial Error Voids DWI Conviction – State v. Gibson

[2/7/12 – 4:41 pm] This morning, the Appellate Division ruled that a fact-finder in a quasi-criminal matter cannot convict “solely on the basis of evidence elicited at a pre-trial [suppression] hearing”.  This is a deprivation of the defendant’s right to due process unless defense counsel consents to the court’s procedure.

In the Gibson case, the suppression hearing evidence met the probable cause standard – both for pulling over Mr. Gibson, and for arresting him for DWI (N.J.S.A. 39:4-50).  The motion to suppress was denied.  But upon the shift to a higher standard of proof in the trial on the merits, the judge did not start the trial anew.  The court started the trial where the suppression hearing left off, and the State presented no further evidence while the defense counsel moved for dismissal.  By relying on the evidence from the suppression hearing without defense counsel consenting to the procedure, the court deprived the defendant of due process.

The link to State v. Gibson is:

Category: Muni-Mail Archive

Muni-mail – TOP SECRET! – No Inspection of Police Station in DWI Cases – State v. Carrero

10/23/12 – 1:55 pm – This morning, in a case captioned State v. Carrero, the Appellate Division of Superior Court ruled that a defendant in a DWI case does not have an unqualified right under Rule 7:7-7 to inspect and photograph the room at the police station where his Alcotest examination was administered. The Court went on to hold that in order to conduct such an inspection, the defendant must first demonstrate that the proposed inspection is both reasonable and relevant to a material issue in his prosecution as opposed to being merely speculative. Given the competing concerns related to police security, the panel found that the issues of relevance and reasonableness had not been proved in the two DWI cases under review.

To link to a copy of State v. Carrero, click on:

Category: Muni-Mail Archive

Muni-mail – No more punishment after sentence is over – State v. Schubert

10/22/12 – 3:45 pm – This morning, in a 5-2 decision, the New Jersey Supreme Court ruled that once an illegal criminal sentence has been completely served, the defendant may not be re-setenced to any additional punishment, even to correct the illegal aspect of the sentence under both state and federal double jeopardy principles. Writing for the Court, Judge Wefing held that a number of courts have found that a judge may correct an illegal sentence at any time, even though the imposition of a lawful term involves an increase in a defendant’s aggregate sentence. That principle, however, is not unlimited. Although an illegal sentence that has not been completely served may be corrected at any time without impinging upon double-jeopardy principles, the “at any time” phrase does not authorize an enlargement of the punishment after the sentence imposed had been satisfied.

You can link to today’s decision in State v. Schubert at:

Category: Muni-Mail Archive

Muni-mail – DWI/Allowing Case, Silence not evidence of guilt – State v. Stas

[09/12/12 – 10:11 am] A few moments ago, the New Jersey Supreme Court ruled that silence by a defendant at or near the time of his arrest for DWI/Allowing cannot be used as evidence of guilt or for impeachment purposes at trial. In both the municipal court and Law Division, the judges had drawn an inference of guilt from the defendant’s silence at the accident scene and ruled that he had allowed operation of his vehicle by an intoxicated person. The Supreme Court reversed, holding that the 5th Amendment privilege to remain silent applies in New Jersey DWI cases and silence by the defendant at or near the time of arrest may not be used to infer guilt or impeach credibility at trial.

The link to State v. Stas is:

Category: Muni-Mail Archive

Muni-mail – App. Div: No Seatbelt can be a 3rd degree crime – State v. Lenihan

[08/15/12 – 9:25 am] On Monday, the Appellate Division ruled that the failure of a driver to make sure that a minor passenger is properly using a seatbelt can support a prosecution for the crime of knowingly failing to perform a duty imposed by law intended to protect public safety, as set forth under N.J.S.A. 2C:40-18. This crime is graded between fourth and second degree, depending upon the extent of the injuries sustained by the victim.

In the case published on Monday, captioned State v. Lenihan, the defendant operated a motor vehicle that had a 16-year old passenger in the front seat. Neither was wearing a seatbelt. The vehicle became involved in a serious accident, resulting in major injuries to both the defendant and her passenger. The passenger subsequently died. The New Jersey seatbelt statute, NJSA 39:3-76.2 makes the driver responsible for seeing to it that all minor passengers are properly using the vehicle’s seatbelts. Based upon this requirement in the seatbelt law, the defendant was indicted for a violation of NJSA 2C:40-18.

The Appellate Division ruled that the seatbelt law in New Jersey is broadly intended to protect not only individual people in motor vehicles but the public safety in a general sense. As a result, the failure of a driver to properly belt-in a minor who later sustains (at a minimum) significant bodily injury as a result of an accident can be prosecuted under NJSA 2C:40-18.

The Court’s ruling has extremely wide and serious implications for drivers who do not properly utilize seatbelts for infants, children and teenagers under the age of 18.

Link to State v. Lenihan:

Category: Muni-Mail Archive