Spring Municipal Court Law Review 2014 By Kenneth Vercammen, Esq Edison, NJ
1. Municipal court judges are not permitted to deprive defendants of right to counsel and prosecute defendants
In the Matter of Louis M.J. DiLeo, A Former Judge of the Municipal Court 216 NJ 449 (2014)
Held: The undisputed facts clearly and convincingly demonstrate that former Judge Louis M.J. DiLeo committed egregious legal errors in conducting the proceedings involving Anthony Kirkland and Wendell Kirkland. Judge DiLeo’s conduct violated Canons 1, 2A, and 3A(1) of the Code of Judicial Conduct. Respondent is reprimanded. The judge refused further adjournment for defendants to seek counsel or apply for public defender, and then judge acted as prosecutor in asking them questions.
Every judge is duty bound to abide by and enforce the standards in the Code of Judicial Conduct. There are two determinations to be made in connection with the imposition of judicial discipline: (1) has a violation of the Code been proven by clear and convincing evidence, and (2) does that violation amount to unethical behavior warranting discipline. Generally, discipline is warranted “ ‘when conduct is marked with moral turpitude and thus reveals a shortage in integrity and character.’ ” Id. at 102. The Court also has acknowledged that a single violation of the Code that was “willful” or “typical of the judge’s work” may constitute judicial misconduct.
Legal error has provided the foundational basis in this state for charging judges with violations of Canons 1, 2A, and 3A(1) of the Code of Judicial Conduct. A case-by-case approach has been used when analyzing charges of legal error to discern judicial misconduct under these canons. Where willful abuse of judicial power or inability to follow the law has been found, demonstrating judicial misconduct in the extreme, the Court has not hesitated to impose the harshest of sanctions and has removed a sitting jurist on the basis of incompetence and unfitness for judicial office. The overriding concern is the capacity of judicial behavior, objectively viewed, to undermine public confidence in the integrity and impartiality of the judicial process.
The undisputed facts clearly and convincingly demonstrate that Judge DiLeo committed egregious legal errors in his conduct of the proceedings involving the Kirkland defendants. Respondent’s manner of conducting this trial deprived the defendants of their fundamental due process rights and eliminated all indicia of impartiality by the judge -- and fact-finder -- in this bench trial. The egregiousness of these errors had the clear capacity to undermine public confidence in the dignity, integrity, and impartiality of the judicial system of this state. Judge DiLeo violated Canons 1, 2A, and 3A(1) of the Code of Judicial Conduct. He committed legal errors of the degree and kind that call into question judicial competence and cast a pall over the judiciary as a whole, and that constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute. R. 2:15-8.
2. Police can’t search home unless proof abandoned or persons trespasser State v. Brown 216 NJ 508(2014)
The State did not establish by a preponderance of the evidence that 820 Line Street in the City of Camden, although in decrepit condition, was abandoned or that defendants were trespassers, thus failing to justify the warrantless search of the property.
3. For statute of limitations, when a defendant engages in a scheme to obtain the property of another by deception, theft by deception is a continuing offense State v. Diorio 216 NJ 598 (2014)
If the scheme involves the promise to pay at a later date, the limitations period does not commence until the day after payment is due. Money laundering is a continuous offense only when there is evidence of successive acts that facilitate the common scheme to defraud. Applying these principles here, the statute of limitations on the theft by deception charge expired prior to return of the indictment, thereby barring Diorio’s prosecution for that offense. In contrast, the money laundering charge was timely since the relevant transactions occurred within five years before the indictment was filed.
4. Defendant has right to present expert to prove their defense State v Granskie 433 NJ 46 (App. Div. 2013)
The Court held that defendant had the right to present expert testimony concerning his heroin addiction and withdrawal symptoms and the potential impact of his physical and psychological condition on the reliability of his confession. The expert may explain how heroin withdrawal could have affected the defendant during the police interrogation, but may not opine that the defendant's confession was unreliable or was false, because such testimony would usurp the jury's role. While the expert may rely in part on hearsay to explain his opinions, N.J.R.E. 703, there must be some legally competent evidence that defendant was in fact suffering from withdrawal at the time he made the confession.
In evaluating a proffer of expert testimony, the court must apply the provisions of N.J.R.E. 702.
[The rule sets forth three basic requirements for the admission of expert testimony: "'(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.'"
Those requirements are construed "liberally" in favor of admitting expert testimony.
5. NJ can suspend NJ driving privilege for NY DWI if NJ was person’s home state at time of arrest
DiPopolo v NJ Motor Vehicle Commission Unreported App. Div. DOCKET NO. A-2805-12T2 Decided February 3, 2014
Appellant appeals from the final decision of respondent New Jersey Motor Vehicle Commission (MVC) to deny his request for a hearing and suspend his New Jersey driver's license for 3650 days pursuant to the Interstate Driver License Compact (the Compact), based on his out-of-state (New York) conviction of driving while intoxicated (DWI). Appellant raises an issue of law with respect to the proper interpretation and application of N.J.S.A. 39:5D-4, contending that he was not subject to suspension of his New Jersey driver's license pursuant to the Compact because New Jersey was not his "home State" at the time of conviction. It is the driver's status as a New Jersey licensee, not resident, that governs the MVC's authority to suspend a driver's license pursuant to N.J.S.A. 39:5-30(a). Here, New Jersey issued the driver's license appellant held at the time of the offense and had the power at that time to suspend or revoke it. Thus, New Jersey fits within the Compact's definition of a "home State." The appellate panel holds that the surrender of a New Jersey driver's license after committing an out-of-state DWI offense but before conviction does not deprive New Jersey of its home-State status under the Compact. It is the driver's status as a New Jersey licensee at the time of the offense, not the time of conviction that governs the MVC's authority to suspend a driver's license pursuant to the Compact. There is sufficient credible evidence in the record as a whole supporting the MVC's decision to suspend appellant's New Jersey driver's license for 3650 days. No evidentiary hearing was required.
Source NJ Law Journal Daily Briefing - 02/04/2014. a member benefit of the NJ State Bar Association. To join the NJSBA, go to www.njsba.com or contact NJSBA Member Services at 732-249-5000. For full text of opinions, contact NJ Law Journal.
6. Interlock needs to be imposed after refusal despite that the DWI warnings did not mention interlock. State v. McGrath, Unreported App. Div Docket A-2929-12T4
After a trial de novo in the Law Division, defendant appeals from his conviction for refusing to submit to a chemical breath test. Defendant argues the conviction should be reversed because the officer read the April 2004 version of the standard statement under N.J.S.A. 39:4-50.2(e), which omitted mention that, if convicted, the court would be required to order installation of an ignition interlock device. The municipal court found defendant guilty of refusal, but found him not guilty of DUI. As a third or subsequent offender, the court suspended defendant's driving privileges for ten years; required that he attend the Intoxicated Driver Resource Center for forty-eight hours; ordered installation of the ignition interlock until one year after restoration of driving privileges; and imposed monetary fines and penalties. The Law Division judge found defendant guilty anew and re-imposed the sentence of the municipal court, except the court did not require an ignition interlock, because defendant was not noticed of any interlock device when the statement was read. The appellate panel affirms based on the Supreme Court's subsequent decision in State v. O'Driscoll. The panel concludes that the omission of the ignition interlock requirement in the 2004 statement was not material in this case where defendant would not have likely felt more impelled to give a breath sample if the standard statement read had advised him that, if convicted, he would be required to install an ignition interlock. The panel remands for correction of the sentence to require the ignition interlock. Source NJ Law Journal Daily Briefing 2/24/14
7. Alcotest Results Admissible Despite Failure of State To Produce Machine's Data State v. Macri. Unreported A-0255-13T4 The Law Division suppressed the evidence of the results of defendant's Alcotest breath examination. The Appellate Division reversed. .Although DWI defendants have the right to obtain all data about the Alcotest machines used to test them, the state's failure to provide the data due to a technical glitch is not cause to suppress machine readings, a New Jersey appeals court says. The loss of data caused by the failure of a machine's motherboard did not amount to a denial of due process, since there was no showing of bad faith by the state and the lost data was only potentially useful. Source Daily Briefing - 03/17/2014
8 DWI dismissed where state misplaced file for 16 months
State v. Downs, App. Div. A-1688-12T4 Defendant appeals the Law Division order affirming the municipal court's denial of his motion to dismiss outstanding charges on speedy trial grounds. Defendant entered a conditional plea to driving while intoxicated (DWI), reserving his right to pursue this appeal. Defendant actively attempted to bring this matter to an end. He requested discovery around the time the indictable charge against him was dismissed, to no avail. Despite his best efforts to obtain discovery, he was put off and shuttled between the Hamilton Township Police Department (HTPD) and the Mercer County Prosecutor's Office. Because the file could not be located, however, discovery was not provided until some sixteen months later. The Supreme Court decided State v. Cahill after the Law Division's decision in this case. In Cahill, the Supreme Court noted that "[once a defendant asserts a violation of his right to a speedy trial, the government is required to identify the reason for the delay. Misplacing a DWI file is not an adequate reason for a sixteen-month delay. The appellate panel reverses the finding of the Law Division judge and dismisses the matter. Source New Jersey Law Journal February 21, 2014
Next Events:
Wed, May 7 5:00 PM - 9:00 PM
Nuts & Bolts of Elder Law & Estate Administration Seminar
New Jersey Law Center One Constitution Square New Brunswick, NJ 08901 Includes a 260-page book, plus CD with sample forms, documents & checklists! and dinner
May 15 Thursday 1-2:30pm
Trying Cases in Municipal Court-the Basics
Municipal Court Practice program
NJ State Bar Association NJSBA Annual Meeting
Borgata Hotel Atlantic City
Also at 1pm will be the awarding of the Municipal Court Attorney of the Year to honor Jon Henry Barr. President of NJ Municipal Court Prosecutors Association
Flash drive with forms and materials provided to all attendees!
To register contact NJSBA 732-249-5000
9. NJSBA Municipal Court Section & Criminal Law Section members invited to Happy Hour & Networking Social
Friday, July 18, 2014 5:00PM - 7:00PM
at Bar Anticipation
703 16th Avenue
Lake Como/ Belmar, NJ 07719
Free !
5-7PM Hot & Cold Buffet with carving station
The reduced price Happy Hour is 6-7PM with $1 House Drink, Bud/BudLt draft & House Wine Special
Please bring a canned food donation for the St. James Food Bank Hands of Hope, continuing providing food and help to individuals in need.
Email Ken Vercammen's Law Office so we can put your name on the VIP list for wristbands. [email protected]
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Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's new book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association. As the Past Chair of the Municipal Court Section he has served on its board for 10 years.
Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.
Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine. He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.
For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.
His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings. Ken also serves as the Editor of the popular legal website and mobile phone app www.njlaws.com and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.
Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. Recently, the ABA Solo Division has selected Ken to write its new book on “Marketing for the New and Small Firm Attorney”. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4th degree black belt.
Index Spring
1. Municipal court judges are not permitted to deprive defendants of right to counsel and prosecute defendants
In the Matter of Louis M.J. DiLeo
2. Police cant search home unless proof abandoned or persons trespasser State v. Brown
3. For statute of limitations, when a defendant engages in a scheme to obtain the property of another by deception, theft by deception is a continuing offense State v. Diorio
4. Defendant has right to present expert to prove their defense State v Granskie
5. NJ can suspend NJ driving privilege for NY DWI if NJ was person’s home state at time of arrest
DiPopolo v NJ Motor Vehicle Commission
6. Interlock needs to be imposed after refusal despite that the DWI warnings did not mention interlock. State v. McGrath,
7. Alcotest Results Admissible Despite Failure of State To Produce Machine's Data State v. Macri.
8. Next CLE programs
9. NJSBA Municipal Court Section & Criminal Law Section members invited to Happy Hour & Networking Social
10. Photos
11.Annual Subscription $20.00 page 4