Fall 2023 NJ Municipal Court Law Review
By Kenneth Vercammen, Esq. Edison, NJ 732-572-0500
[email protected]
1. Police properly administered Miranda warning
2. Engine compartment of car could not be searched without warrant
3. Newspaper here not entitled to legal fees under common law right of access claims to public records
4. Cassidy DWI cases permits certain Plea bargains
5. Wife posting video asking for assistance to obtain Jewish get was not harassment under DV law
6. State had an affirmative duty to gather and disclose any relevant Brady/Giglio material from State's testifying witnesses
7. Driver guilty here of NJ unlicensed driver even with old Brazilian DL
8. FRO reversed where no findings of harassment
9. Hindering his own apprehension affirmed
10. Photo NJ Bar President Timothy F. McGoughran
11. Photo Officers and Trustees of Municipal Court Section at NJ Bar Annual Meeting in Atlantic City
1. Police properly administered Miranda warning
State v. Erazo Defendant voluntarily went to the police station to give a witness statement. At the police station, defendant was interviewed twice. During his first interview, defendant was not in custody and thus not yet owed Miranda warnings. The factors set forth in O’Neill therefore do not need to be considered to assess the admissibility of the second interview. And before police interviewed defendant the second time, they properly administered Miranda warnings. With his rights in mind, defendant executed a knowing, intelligent, and voluntary waiver. During his second interview, defendant confessed. Neither the Fifth Amendment nor state common law calls for suppression of defendant’s statements. A-16-22
2. Engine compartment of car could not be searched without warrant
State v Cohen Expanding the search to the engine compartment and trunk went beyond the scope of the automobile exception. Although the trooper smelled marijuana in the passenger compartment of the car, his initial search yielded no results and provided no justification “to extend the zone of the . . . search further than the persons of the occupants or the interior of the car.” State v. Patino, 83 N.J. 1, 14-15 (1980). As a result, the seized evidence should be suppressed. A-50-21
3. Newspaper here not entitled to legal fees under common law right of access claims to public records Gannett Satellite Information Network, LLC v. Township of Neptune
The Court affirms as modified the Appellate Division’s judgment. The Court declines to adopt an exception to the American Rule for common law right of access claims to public records. Those claims impose significant burdens on municipal clerks and other records custodians; they require a careful balancing of competing interests and the application of an array of factors that can challenge even a seasoned judge. Imposing fee-shifting in this category of cases would venture far beyond the narrow exceptions to the American Rule that New Jersey courts have adopted to date. Accordingly, Gannett is not entitled to an award of attorneys’ fees in this appeal. A-63-21
4. Cassidy DWI cases permits certain Plea bargains
In the June 27, 2023 Order, the Supreme Court confirms the continuance of its December 18, 2019 rule relaxation permitting plea bargaining in post-conviction relief driving while intoxicated (DWI) cases affected by the Court's decision in State v. Eileen Cassidy. 235 N.J. 482 (2018).
In State v. Cassidy. 235 N.J. 482 (2018), the Court held Alcotest results from certain breath-test machines that were calibrated without using a thermometer that produces NIST-traceable temperature readings in the calibration process to be inadmissible as evidence in DWI cases.
The June 27, 2023 Order confirms and clarifies that the Court's May 6, 2022 Order did not terminate the temporary and limited rule relaxation in the Court's December 18, 2019 Order and that plea agreements in Cassidy affected post-conviction relief proceedings may proceed.
This Order also provides that before a court acts on a proposed plea agreement, the Municipal Court Prosecutor shall submit the proposed plea agreement to the Office of Attorney General or the Attorney General's designee for review.
5. Wife posting video asking for assistance to obtain Jewish get was not harassment under DV law S.B.B. VS. L.B.B.
In this matter, the court considered whether defendant's act of making and disseminating a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divorce, and asking community members to "press" her husband to deliver the get constituted the predicate act of harassment, in violation of N.J.S.A. 2C:33-4(a), to justify the issuance of a final restraining order under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The court held that defendant's communication was protected by the Free Speech Clause of the First Amendment and the New Jersey Constitution and did not fall into any of the narrow exceptions—incitement to imminent violence or true threats—which would rob it of its protected status. The court likewise concluded that because defendant's communication was not impermissibly invasive of plaintiff's privacy and was animated by a legitimate purpose, the acquisition of a get, rather than a purpose to harass, it was not violative of the harassment statute. Lastly, the court held that plaintiff's allegation that there was a general tendency of violence toward get refusers in the Jewish community was inapposite because the claim was not supported by the record and because the theoretical possibility that a third party will commit a criminal act cannot render otherwise permissible speech unlawful. As a result, the court vacated the final restraining order entered against defendant. Unreported DOCKET NO. A-0305-21
6. State had an affirmative duty to gather and disclose any relevant Brady/Giglio material from State's testifying witnesses
State v. Burke Defendant appealed orders denying a forensic examination of the complainant's cellphone and discovery of complainant's employment and disciplinary records with the State Police in a quasi-criminal municipal court matter initiated by a civilian complainant. A verbal altercation developed between complainant and defendant. Police officer took statements about an ongoing property dispute. Complainant did not make any mention of traffic violations allegedly committed by defendant. Officer concluded the matter was a "civil issue" and no action was needed. A month later, complainant swore out a complaint against defendant for alleged traffic violations during the dispute. Defendant pled not guilty and requested discovery. Complainant only provided printed images of alleged traffic violations he recorded on his cellphone. State denied defendant's discovery requests as not relevant. Municipal judge entered a protective order barring discovery of complainant's records and employment information and forensic examination of the cellphone. Defendant appealed to the Law Division and State introduced an expungement order for the disciplinary and criminal records requested by defendant. Law Division denied defendant's request. Court reversed and remanded finding the records sought by defendant were relevant to impeachment evidence and State had an affirmative duty to gather and disclose any relevant Brady/Giglio material from State's testifying witnesses. Unreported Source Daily Briefing 07-20-2023
7. Driver guilty here of NJ unlicensed driver even with old Brazilian DL State v. Evangelista
Defendant appealed trial court's order after a trial de novo of his municipal conviction for driving without a license. Defendant, a Brazilian national residing in New Jersey, was charged with the unlicensed operation of a motor vehicle and other motor vehicle violations. With representation by counsel, defendant appeared via Zoom at a remote municipal court proceeding in which he pleaded guilty to violating N.J.S.A. 39:3-10 in exchange for dismissal of the remaining charges. Municipal court accepted the plea and sentenced defendant to thirty days in jail. Defendant appealed and obtained a trial de novo. Trial court upheld municipal court's decision and sentenced defendant to thirty days in jail. Defendant appealed, arguing municipal court applied an obsolete version of N.J.S.A. 39:3-10, he was not guilty because he was previously licensed in Brazil, his sentence was illegal, and the proceedings were flawed because no Portuguese translator was provided. Court affirmed. As amended in 2021, N.J.S.A. 39:3-10 might have made it easier for defendant, as an immigrant, to obtain a valid New Jersey driver's license, but the fact remained that defendant still had not done so on the date of his violation in October 2021. Defendant knew he was not permitted to drive in New Jersey with his Brazilian license because he had a prior conviction for the same infraction, for which he received jail time. Nor was defendant's sentence illegal. The statute provides that a driver who has never been licensed, in New Jersey or elsewhere, may only be punished with a fine, but defendant previously held a driver's license in Brazil. That made him eligible for imprisonment under N.J.S.A. 39:3-10. Defendant's sentence also was in keeping with his record of infractions and related factors. Finally, there was no flaw in the proceedings merely because Portuguese was defendant's first language. Neither defendant nor his counsel requested an interpreter or indicated defendant had difficulty communicating in English. .A-2481-21 Unreported source NJLJ 2023-07-26
8. FRO reversed where no findings of harassment T.T. v. A.L.
Defendant appealed the grant of a FRO to plaintiff. The parties shared a two-year old son. Defendant lived in California full time for at least a year before the FRO was entered. Plaintiff filed a TRO alleging she felt "basically harassed" by defendant during their interactions over the telephone. At the FRO hearing, both parties admitted to disagreements over defendant's failure to pay child support and plaintiff admitted she applied for a TRO one day after defendant called police about bruising he observed on child's face during a virtual visit. Court vacated the FRO, reinstated the TRO and remanded for a new FRO hearing. Court found
trial court failed make sufficient findings of fact and law. Court noted plaintiff testified she felt harassed because defendant was seeking a paternity test before he paid child support and called police about child's bruises and stated "he is harassing me because he does not want to pay child support, that's the real story." Trial court merely found harassment occurred without making any findings of fact regarding dates and times and failed to make findings of law as to whether a pattern of harassment was established. Trial court also did not make any findings pursuant to the second prong of Silver. A-3538-21 unreported source NJLJ July 10, 2023
9. Hindering his own apprehension affirmed State v. Shabaan
Defendant appealed his convictions for hindering his own apprehension by providing a false name to law enforcement and driving with a revoked or suspended license. During trial, defendant and his wife testified that she was the driver and defendant was in the rear of the minivan with their children. The arresting officer testified that at precinct headquarters, defendant broke down and admitted he was the driver. Municipal court found the testifying police officer more credible than defendant and his wife and thus found defendant guilty on the charges of hindering apprehension and driving under a suspended license. Defendant appealed, and trial de novo was conducted on a review of the municipal court record.
Trial court rejected defendant's assertions that municipal court erred by: failing to conduct a hearing on the admissibility of his statement at the police headquarters; crediting the officer's testimony; and permitting testimony regarding a records abstract showing the names that dispatch had run through the NCIC database. Trial court concluded defendant's statement admitting he was the driver would be admissible as a statement against interest and was voluntary rather than the result of interrogation. Ultimately, however, trial court did not consider defendant's statement in determining guilt on the charges alleged. Trial court further deemed the records abstract and the NCIC information it reflected were admissible as business records and public records. Finally, trial court independently credited the officer's testimony and deemed defendant's testimony, and that of his wife, to be self-serving and not credible. Trial court imposed same fine, costs, and assessments imposed by municipal court. Defendant appealed. Court affirmed. Court rejected defendant's challenges as lacking sufficient merit to warrant further discussion. Court affirmed for substantially the reasons set forth by trial court, noting that trial court did not consider defendant's police headquarters statement in its determination, the disputed abstract and NCIC information were not admitted into evidence, and trial court's factual and credibility findings were supported by the record. A-0559-21 source NJLJ July 31, 2023
10. Photo - NJ Bar President Timothy F. McGoughran
President McGoughran’s involvement with the NJSBA traces back to his early years as a lawyer. He was a member of the NJSBA’s Young Lawyers Division and went on to chair the Association’s Family Law Section, before joining the Board of Trustees and Executive Committee. He served as president of the Monmouth Bar Association for the organization’s 100th anniversary in 2007.
He is also a former municipal court judge in Monmouth County.
11. Photo - Officers and Trustees of Municipal Court Section at NJ Bar Annual Meeting in Atlantic City
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 award winning 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. He is admitted to the Supreme Court of the United States.
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 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. 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 35 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 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. 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.
KENNETH VERCAMMEN
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
Municipal Court practitioners may also be interested in the book:
Drug and DWI Defense - Forms and Pleadings (2021)
New Jersey Specific Bound book and CD with Forms, helpful links and searchable PDF $59.00
Author: Kenneth A. Vercammen
This informative handbook will provide you with guidance on how to handle everything pertaining to the drug and DWI defense - from the initial contact with the client, to walking into the courthouse, and managing the steps that follow. It is a “how to” manual that you and your staff can follow with checklists and forms.
This book is intended to help solo/small-firm attorneys and newly admitted attorneys prepare to handle these cases and to better represent their clients. This handbook will help attorneys represent persons charged with DWI, drug, and other criminal and traffic offenses.
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CD with over 50 modifiable forms and motions, helpful links and searchable PDF
Over 50 forms and motions are included to help make you (and your staff) more efficient and productive, while also reducing the chance for mistakes.
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Also includes a section on marketing the DWI and drug defense practice.
Table of Contents:
1. Pre-Interview
2. Office Interview and Preparing Notices to the Court and Prosecutor
3. Pretrial Motions
4. Trial Preparation
5. Trial
6. Sentencing and Post Trial
7. Supreme Court Caselaw and Federal Statutes
8. Marketing the DWI and Drug Defense Practice
Click here to purchase the book.
Link to webpage on website: https://tcms.njsba.com/personifyebusiness/njicle/Store/ProductDetails.aspx?productid=46708744
Criminal Articles from NJLaws Website and BeNotGuilty.com website
http://criminalarticle.blogspot.com
Criminal Law- Recent Cases
http://njcriminallaw.blogspot.com/
Criminal Statutes and Criminal Jury Charges
http://criminal-jury.blogspot.com/
Drug & DWI Law
http://drugarrest.blogspot.com
Motor Vehicle Articles and NJ Title 39 Motor Vehicle laws
http://njmotorvehicle.blogspot.com/
Municipal Court and Police Phone number and Directions
http://njpolice.blogspot.com/
New NJ Statutes , Recent cases and Court Rules
http://njstatutes.blogspot.com
Traffic Law & Municipal Court- Articles from BeNotGuilty.com
http://traffic-law.blogspot.com/