New Jersey Criminal Defense Attorney Blog

The New Jersey Underage DWI-DUI statute, N.J.S.A. 39:4-50.14, also known as the "baby DWI-DUI" makes it illegal for any person under the legal age (21) to operate a motor vehicle with virtually any alcohol in their system.

A blood alcohol concentration (BAC) reading of between a .01 and a .08 will result in the driver being subject to a license suspension of up to 90 days. Additionally, the charge carries up to 30 days community service. The individual must also pay the statutory fines, and attend the Intoxicated Driver Resource Center (IDRC).

The underage DWI-DUI statute is in many ways better for the defendant than the normal NJ DWI-DUI charge under N.J.S.A. 39:4-50. This is because the same BAC reading under the normal DWI-DUI statue carries a mandatory 3 months loss of license. Furthermore, the underage DWI-DUI charge will not be used as a prior offense if the same individual receives a subsequent DWI-DUI charge.

Sergeant Steven Pelligra, a veteran of the NJ State Police, was arrested last week and charged with DWI-DUI, Refusal to Submit to a Breath Test, and related offenses. His arrest followed a two-vehicle accident that occurred in Hackettstown. He has been suspended from duty without pay.

At the time of the crash, Pelligra was off duty and traveling north in his Nissan Frontier when his truck hit the driver's side of a 1999 Pontiac Grand Prix going south. Pelligra fled from the scene after the accident. He later refused to give a breath sample.

The New Jersey Assembly voted unanimously approved a bill this week that levies harsh penalties on individuals who are caught loaning their cars to anyone whose whose license is suspended or revoked from a drunk driving (DWI/DUI) or refusal conviction.

The new law, S-2940/A-4302, is contained in a package of legislation sponsored by Richard Codey aimed at cracking down on repeat DWI offenders. If passed, the new law would levy on first or second-time offenders a fine of $1,000 and up to 15 days jail time for anyone who knowingly lends their vehicle to someone with a suspended license resulting from a DWI-DUI conviction or refusal to take a breath test. A third-time offender would receive a $1,000 fine, up to 15 days jail time, and a 90-day driver's license suspension.

As the law currently stands, the only penalties that exist for this offense are a fine of $200-$500 and up to 15 days in jail. The proposed law will now proceed to the Senate floor for final approval.

NJ Police vigorously pursue individuals who leave the scene of a car accident without taking the required steps under the law. This ticket is frequently given along with 2 others: Failure to report an accident and careless driving.

The driver any a vehicle involved in an accident involving injury or property damage must remain at the scene and present their credentials to the person who was injured or whose property was damaged and to any police officer or witness at the scene. If no such person is available, you must notify the police immediately.

The penalties for violating this section of the Motor Vehicle law are severe. If there is an injury or death involved from the accident, leaving the scene can result in a fine of up to $5000 and be imprisoned for 180 days, 8 motor vehicle and insurance eligibility points plus a one-year driver's license suspension.

In the case of an accident not involving injury or death but only property damage, the penalties are still harsh. They include a fine of up to $400, 30 days jail, 2 points and a six month driver's license suspension for the first offense, and a one-year suspension for any subsequent offense.

A New Jersey woman recently picked up her son from school with a blood alcohol level (BAC) three times the legal limit, investigators said.

Jeanne Champagne, a 45-year-old Rockaway resident arrived at around 7:00 p.m. on November 20 to pick up her 12-year old boy from an after-school activity.
After picking up her son, Champagne hit a parked vehicle. Police soon arrived to investigate and detected the smell of alcohol on the defendant's breath.

The mother admitted to having drank alcohol and subsequent breath testing indicated that her BAC was .24, triple the legal limit of .08. She was charged with driving while intoxicated, driving while intoxicated with a minor, careless driving, reckless driving and endangering the welfare of a child.

In any criminal or motor vehicle prosecution, the State bears the burden of proof. Accordingly, when the State seek to introduce blood test results in a DWI/DUI prosecution, the State has the burden of establishing the reliability of those results.

The Court will typically conduct what is known as a 104(a) hearing on the admissibility of the blood work. This hearing should begin by determining whether the blood was drawn within a reasonable time after the defendant operated a motor vehicle. The police officer must also testify that he or she had probable cause to order the blood to be drawn.

Next, the officer will typically testify that he or she witnessed the blood be drawn by an authorized medical professional. It is important to cross-examine the officer as to whether an alcohol or betadine swab was used during the draw since an alcohol swab can obviously contaminate the result.

Under current case law, the individual who conducted the draw can be dragged into court and cross-examined. Defense attorneys should therefore object to the admissibility of any reports or certificates generated by this person in a timely manner in order to preserve the ability to conduct cross-examination.

Testimony should also be adduced establishing an unbroken chain of custody of the blood work to ensure that the results being received into evidence are actually those drawn from the defendant.

The admissibility of blood test results in a NJ DUI-DWI case should obviously be rigorously challenged by a defense attorney. The admissibility of such blood tests are subject to numerous conditions.

Since the judge's decision on the admissibility of the blood tests will likely decide the outcome of the DWI trial, it is crucial to retain a DWI lawyer who understands the highly technical challenges available in such cases.

The Court will usually rule on the admissibility of the blood work at the conclusion of what is known as a "Rule 104(a) hearing." The name is taken from the New Jersey Rule of Evidence 104(a). Such a hearing is necessary whenever the admissibility of evidence is subject to a condition, the Court hears proofs as to the condition during a 104(a) hearing.

The typical rules of evidence, including hearsay, are relaxed during these hearings. The Court may therefore consider any evidence it deems trustworthy. In a seeming paradox, it is the same judge who determines whether the evidence is, in fact, trustworthy.

In a New Jersey DWI-DUI case, you do not have the right to refuse to take a breath test. However, under current law the refusal of a defendant to provide police with a blood sample during a DWI-DUI investigation does not constitute a crime under the criminal or motor vehicle laws.

In State v. Ravotto, 169 N.J. 227, the Supreme Court held that a good-faith fear of needles was a legitimate reason to refuse to give a blood sample. However, police may use "reasonable force" in obtaining the sample. The Court in Ravotto found that police had used excessive force under the facts of that case.

However, be warned that if a court finds that the refusal to give the blood sample was "self-serving" it may infer that the reason for the refusal was that the defendant in fact was driving while intoxicated. The same inference may be drawn when the defendant refuses to take the breath test.

Mercer County Superior Court
Mailing Address:
PO Box 8068
Trenton, NJ 08608
Street Address:
209 S Broad Street
Trenton, NJ 08608

East Windsor Municipal Court
Mailing Address:
80 One Mile Road, East
Windsor, NJ 08520
Phone Number: (609) 448-3228

Ewing Township Municipal Court
Mailing Address:
2 Jake Garzio Drive
Ewing, NJ
Phone Number: (609) 883-2900

Hamilton Township
Municipal Court
Mailing Address:
1270 Whitehorse Ave Cn00150
Hamilton, NJ
Phone Number: (609) 581-4071

Hightstown Municipal Court
Mailing Address:
148 N Main Street
Hightstown, NJ
Phone Number: (609) 490-5105

Hopewell Borough Municipal Court
Mailing Address:
PO Box 343
Hopewell, NJ
Phone Number: (609) 466-0968

Hopewell Township Municipal Court
Mailing Address:
201 Washington Crossing
Pennington Road Titusville, NJ
Phone Number: (609) 737-1035

Lawrence Township Municipal Court
Mailing Address:
Municipal Square P.O. Box 6006 Lawrenceville, NJ
Phone Number: (609) 844-7159

Pennington Borough Municipal Court
Mailing Address:
30 North Main Street
Pennington, NJ
Phone Number: (609) 737-1016

Princeton Borough Municipal Court
Mailing Address:
PO Box 390 1 Monument Dr
Princeton, NJ
Phone Number: (609) 497-7600

Princeton Township Municipal Court
Mailing Address:
400 Witherspoon St.
Princeton Township, NJ
Phone Number: (609) 924-5042

Trenton Municipal Court
Mailing Address:
225 N Clinton Ave
PO Box 1360 Trenton, NJ
Phone Number: (609) 989-3700

Washington Township Municipal Court
Mailing Address:
1117 Route 130
Robbinsville, NJ
Phone Number: (609) 259-7085

West Windsor Municipal Court
Mailing Address:
20 Municipal Drive PO Box 38 Princeton Junction, NJ
Phone Number: (609) 799-0915

In this NJ criminal defense appeal victory, the defense attorney successfully argued that flight from an unconstitutional stop does not automatically justify the admission of evidence obtained during a subsequent search at trial. Summary by Mark Friedman.

State v. Robert E. Williams, ? N.J. Super. ?, 2009 N.J. Super. LEXIS ? (November 23, 2009) - Conviction reversed, suppression ordered. "The primary issue presented by this appeal is whether flight from an unconstitutional investigatory stop that could justify an arrest for obstruction automatically justifies the admission of any evidence revealed during the course of that flight.

We conclude that such evidence is admissible only if there is a significant attenuation between the unconstitutional stop and the seizure of evidence and that commission of the offense of obstruction is insufficient by itself to establish significant attenuation....

[T]he trial court correctly concluded that Officer Delaprida and his partner did not have a reasonable suspicion that defendant was engaged or about to engage in criminal activity. These police officers had been dispatched to the housing complex based on a report of a possible retaliatory shooting in the area....

[T]he officers admittedly did not have any prior contact with defendant and thus had no reason to believe he might be involved in the possible retaliatory shooting or other criminal activity....

Moreover, defendant's conduct after he saw the officers enter the courtyard did not provide an objectively reasonable basis for suspecting that he had engaged in or was about to engage in criminal activity. Defendant simply started quickly pedaling away from the officers and put his hand in his pocket.

We question whether this conduct should even be considered flight because the officers did not initially indicate to defendant that he should stop. Defendant could have believed that he should simply get out of the officers' way....

Defendant argues that his failure to immediately stop his bicycle in response to Officer Delaprida's command could not be found to constitute obstruction within the intent of N.J.S.A. 2C:29-1(a) as interpreted in Crawley [187 N.J. 440 (2006)]. We have no need to address this argument because we conclude that even if defendant's failure to obey Officer Delaprida's command to stop would have provided an adequate basis to arrest him for obstruction, the evidence obtained when Officer Delaprida and his partner grabbed defendant was not 'sufficiently attenuated' from the taint of the unconstitutional stop to justify its admission into evidence....

In New Jersey, the three-factor test reaffirmed in Williams [192 N.J. 1 (2007)] delineates the circumstances in which the attenuation exception may be properly applied. Under those factors, the State failed to establish a 'significant attenuation' between the unconstitutional stop of defendant and the seizure of the drugs he discarded following that stop." (Alyssa Aiello, A.D.P.D.)

http://www.judiciary.state.nj.us/opinions/a4530-07.pdf

Middlesex County Superior Court
Mailing Address
56 Paterson St.
P. O. Box 964
Phone Number: (732) 519-3200

target"_blank"Carteret Municipal Court
Mailing Address:
230 Roosevelt Avenue
Carteret, NJ
Phone Number: (732) 541-3900

Cranbury Township Municipal Court
Mailing Address:
641 Plainsboro Road
Plainsboro, NJ
Phone Number: (609) 799-0863

Dunellen Borough Municipal Court
Mailing Address:
North Ave
Dunellen, NJ
Phone Number: (732) 968-3400

East Brunswick Municipal Court
Mailing Address:
P O Box 1081
East Brunswick, NJ
Phone Number: (732) 390-6915

Edison Township Municipal Court
Mailing Address:
100 Municipal Blvd
Edison, NJ
Phone Number: (732) 248-7328

Helmetta Borough Municipal Court
Mailing Address:
60 Main Street
Helmetta, NJ
Phone Number: (732) 521-4946

Highland Park Borough Court
Mailing Address:
221 So Fifth Ave
Highland Park, NJ
Phone Number: (732) 777-6010

Jamesburg Borough Municipal Court
Mailing Address:
131 Perrineville Road
Jamesburg, NJ
Phone Number: (732) 521-0614

Metuchen Municipal Court
Mailing Address:
500 Main Street
Metuchen, NJ
Phone Number: (732) 632-8505

Middlesex Borough Municipal Court
Mailing Address:
1200 Mountain Ave
Middlesex, NJ
Phone Number: (732) 356-4644

Monroe Township Municipal Court
Mailing Address:
1 Municipal Plaza
Monroe Township, NJ
Phone Number: (732) 521-4020

New Brunswick Municipal Court
Mailing Address:
25 Kirkpatrick St PO Box 265
New Brunswick, NJ
Phone Number: (732) 745-5089

North Brunswick Municipal Court
Mailing Address:
710 Hermann Road
North Brunswick, NJ
Phone Number:(732) 247-0922

Old Bridge Township Municipal Court
Mailing Address:
One Old Bridge Plaza
Old Bridge, NJ
Phone Number: (732) 721-5600

Perth Amboy Municipal Court
Mailing Address:
56 Fayette Street
Perth Amboy, NJ
Phone Number: (732) 442-6011

Piscataway Township Municipal Court
Mailing Address:
555 Sidney Road
Piscataway, NJ
Phone Number: (732) 562-2330

Plainsboro Township Municipal Court
Mailing Address:
641 Plainsboro Road
Plainsboro, NJ
Phone Number: (609) 799-0863

Sayreville Municipal Court
Mailing Address:
1000 Main Street
Sayreville, NJ
Phone Number: (732) 525-5446

South Amboy Municipal Court
Mailing Address:
140 North Broadway
South Amboy, NJ
Phone Number: (732) 525-5929

South Brunswick Township Municipal Court
Mailing Address:
PO Box 190 540 Ridge Rd/Rt 522
Monmouth Junction, NJ
Phone Number: (732) 329-4000

South Plainfield Municipal Court
Mailing Address:
2480 Plainfield Ave
South Plainfield, NJ
Phone Number: (908) 226-7651

South River Municipal Court
Mailing Address:
61 Main St PO Box 657
South River, NJ
Phone Number: (732) 257-1233

Spotswood Borough Municipal Court
Mailing Address:
77 Summerhill Road
Spotswood, NJ
Phone Number: (732) 251-0700

Woodbridge Municipal Court
Mailing Address:
1 Main Street
Woodbridge, NJ
Phone Number: (732) 636-6430

In this case recently decided on appeal, a NJ criminal defense appeal lawyer successfully argued that the police's search and seizure of evidence was illegal. The court found that the State could not establish that the police were acting under the community caretaking or plain view exceptions.

State v. Andre Scott, unpublished opinion, App. Div. Docket No. A-1787-07T4 (November 17, 2009) - Conviction reversed, suppression ordered. "The State justifies the warrantless entry of the police officers into the first-floor apartment as a part of their community caretaking function.

However, ... , the motion judge found that the police's community caretaking function arose only after they observed the open door to the first floor apartment -- an observation necessarily made from the building's hallway, since the judge found that the building's owner, Martin, was unable to see the doorway from her vantage point at the entrance to the residence.

Nothing in the record suggests that the police had any authorization to enter the hallway, either from Martin or from a first-floor resident. Their presence in that hallway thus violated the Fourth Amendment....

[T]he State has failed to meet its burden of proving that it was reasonably fulfilling its community caretaking function when it entered, first, the building owned by Martin, second, the first-floor apartment in that building and, third, the bedroom occupied by defendant and Taylor.

We further conclude that because the police were not lawfully on the premises, their invocation of the plain view exception to the warrant requirement as justification for seizure of the drugs found on the bedroom nightstand fails." (Michael Noriega, Designated Counsel)

http://www.judiciary.state.nj.us/opinions/a1787-07.pdf

Under current New Jersey law, a prosecutor may veto a criminal defendant's application for Pre-trial Intervention (PTI). However, that power is not without limitation. In this NJ criminal case recently decided on appeal, the Court reversed a prosecutor's refusal to allow the defendant to enter the PTI program. Summary by Mark Friedman.

State v. Jovan Alvarez, unpublished opinion, App. Div. Docket No. A-0501-08T4 (November 24, 2009) - "Defendant Jovan Alvarez appeals his judgment of conviction of August 15, 2008, on the basis that the prosecutor abused his discretion in refusing defendant admission into the pretrial intervention program (PTI) governed by N.J.S.A. 2C:43-12 to -22 and Rule 3:28, and its accompanying Guidelines for Operation of Pretrial Intervention in New Jersey.

We agree. Although defendant was accepted into the PTI program, the prosecutor objected to his admission into the program on the basis that defendant did not accept full responsibility for his criminal conduct....

We do not find a factual basis in this statement to support the prosecutor's conclusion that defendant did not accept responsibility for his criminal conduct. Defendant quite plainly admitted that he had been using and distributing marijuana and that he was very sorry he had done so. Although the prosecutor specifically contended that defendant denied selling drugs and claimed he only used them, that is a clearly mistaken reading of the PTI interview record.

Defendant admitted selling drugs, but explained that he was doing so to support his own drug habit. Defendant's statement in the PTI evaluation supports the PTI Program Director's conclusion that '[t]he defendant accepted responsibility for his involvement in the instant offense and further expressed remorse for his actions.

This is viewed as an indication of his apparent amenability to rehabilitation.'... We conclude that the prosecutor's decision to deny defendant admission into the PTI program goes 'so wide of the mark' that it constitutes a 'patent and gross abuse of discretion.'

Defendant is a good candidate for the rehabilitative efforts of PTI.... Defendant's conviction is reversed, and he shall be admitted into the PTI program. The time he has spent on probation for this offense shall be counted toward his time in PTI." (Jane M. Personette)
http://www.judiciary.state.nj.us/opinions/a0501-08.pdf

In this recent case decided on appeal, the defendant claimed his attorney was ineffective at his criminal trial because the attorney did not raise the issue of voluntary intoxication as a defense to defendant's shooting and weapons charges. Summary by Mark Friedman.

State v. Victor McCargo, unpublished opinion, App. Div. Docket No. A-5691-06T4 (November 16, 2009) - Denial of PCR reversed, remanded for evidentiary hearing. "One of the issues defendant raised in his petition was his allegation that his trial counsel had been ineffective for failing to raise his intoxicated state at the time of the shooting as a defense.

He included with his petition certifications from his brother Dante McCargo and his friend Arnold Lyles, as well as his own certification, detailing the amount of alcohol he had consumed.... In [his] certification, [defense counsel] stated that he left it to his co-counsel to discuss the question of intoxication with defendant since co-counsel was to conduct defendant's direct examination....

If an allegation of ineffective assistance of counsel is to fail because of a strategic choice made by counsel, there should be a showing that, indeed, counsel considered the issue and selected one avenue of defense over another. There would be many sound reasons for trial counsel to have elected not to pursue an intoxication defense in this matter, but we are unable to conclude from this record that such an election was in fact made....

Because there is no record on this question, we are unable to conclude whether it is entirely devoid of merit or whether defendant is entitled to further relief. We thus reverse the order denying post-conviction relief and remand the matter for further proceedings." (Patricia Drozd, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a5691-06.pdf

NJ criminal defense attorneys need to be especially attentive to clients that are facing deportation. In this recent case decided on appeal, the Appellate Division reversed the Post Conviction Relief (PCR) denial of a woman who claims her attorney failed to advise her that her guilty plea could result in her deportation. Summary by Mark Friedman.

State v. Sarah Creque, unpublished opinion, App. Div. Docket No. A-0350-08T4 (November 12, 2009) - Denial of PCR reversed, case remanded for evidentiary hearing. "The Law Division determined that defendant could not possibly prove her allegations of ineffective assistance of counsel because she was deported and could not return to testify.

Her deportation was allegedly a result of being convicted of the crime from which she sought relief.... We conclude that defendant's written submissions established a prima facie case warranting an evidentiary hearing...

The PCR court must assume contested facts most favorably to defendant and determine whether those facts would entitle defendant to relief from the conviction if they are true.... In this case, defendant Creque certified that her prior attorney told her the guilty plea would not affect her immigration and residency status.

To establish the second part of the Strickland test, she also certified that she would not have pleaded guilty if she knew she might be deported. If true, those facts establish a prima facie case of ineffective assistance of counsel.... The court's legal error was in viewing the preliminary ruling of whether defendant had established a right to an evidentiary hearing as a conditional ruling.

Because defendant showed a prima facie case of ineffective assistance, she is entitled to an evidentiary hearing, and the court should have so ruled and scheduled a hearing. At that hearing, defense counsel will have the burden of presenting sufficient evidence, with or without defendant, to prove her entitlement to relief.... Nothing in our court rules requires that defendant be present for a PCR hearing." (Adam W. Toraya, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a0350-08.pdf

This recent appeal was decided pertaining to a Post-Conviction Relief (PCR) denial of a juvenile defendant whose mother was prevented from being present while her son was interrogated by police, during which he confessed to murder.

State v. Lawrence Bell, unpublished opinion, App. Div. Docket No. A-4895-05T4 (November 17, 2009) - Denial of PCR affirmed in part, reversed in part, remanded for evidentiary hearing.

"Defendant's second petition for PCR was based on the
absence of defendant's mother or stepmother from the interrogation following his arrest during which he admitted his participation in the kidnapping, sexual assault and murder of a young mother. Defendant argues that his mother's attendance was required and that she was barred from the interrogation room. He contends he was entitled to an evidentiary hearing to determine the credibility of his stepmother's recently submitted statement and her recollection of the events and their relevance to the voluntariness of his oral and written statements.

He further argues that his attorney was ineffective because he did not raise the issue of the stepmother's absence from the interrogation and the voluntariness of defendant's statements.... In this letter, defendant's stepmother relates that she brought defendant to the police station, they entered a room and a detective handcuffed defendant. In her letter, she states she left the room to use the bathroom.

When she returned, defendant was in an interview room being questioned. A detective would not let her enter the room. When she protested, she was shown a note from defendant that stated that he did not want her to be with him. When she insisted that she wanted to see defendant, a detective opened the door. She described his skin as 'a fire red in color' and that he looked scared. Deborah Carter Tobin did not testify at the April 1992 Miranda hearing....

The presence or absence of a parent or guardian is one of several factors that must be considered in the assessment of the voluntary nature of an inculpatory statement by a juvenile. Although defendant's interrogation could proceed in the absence of his stepmother, police were required to conduct the interrogation 'with utmost fairness and in accordance with the highest standards of due process and fundamental fairness.'...

If defendant's stepmother was excluded by detectives and defendant was not informed that she was nearby, these circumstances might suggest that the interrogation was not conducted with care and that the juvenile's will was overborne.... [T]he record of the facts and circumstances surrounding defendant's stepmother's absence is now disputed. The contradictions created by the stepmother's letter cannot be resolved by simply comparing the facts related in her letter and the transcript of the April 1992 Miranda hearing." (David A. Gies, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a4895-05.pdf

In this case recently decided on appeal, it was held that the trial judge erred by not charging the jury on lesser included offenses, even though neither the defense attorney or prosecutor had requested that the lesser included offense be given to the jury.

State v. Rolando Betancourt, unpublished opinion, App. Div. Docket No. A-2981-07T4 (November 30, 2009) - Conviction for kidnapping reversed. "The court erred ... in giving the jury no alternative but to find defendant either guilty or not guilty of kidnapping.

Neither attorney requested a jury instruction on a lesser-included offense under the kidnapping count, but the evidence here unquestionably called for a charge on criminal restraint.... Here, the evidence clearly allowed the jury to find
defendant not guilty of kidnapping but guilty of criminal restraint.

The jury could have determined that the confinement of the victim was not for a substantial period as that phrase has been explained, or that defendant's purpose in confining his wife was not to commit further assaults or to inflict further bodily injury on her.

At the same time, the jury could have determined from the evidence that defendant restrained his wife unlawfully in circumstances exposing her to risk of serious bodily injury, or held her under circumstances resulting in her belief that she was required to remain in the apartment, thus meeting the statutory definition of involuntary servitude. If the jury had reached those determinations from the evidence, the proper verdict would have been not guilty of first-degree kidnapping but guilty of third-degree criminal restraint." (M. Virginia Barta, A.D.P.D.)
http://www.judiciary.state.nj.us/opinions/a2981-07.pdf

This recent case decided on appeal held that the the trial court failed to provide the jury with adequate instructions on the defendant's accomplice charge in his criminal trial. Summary by Mark Friedman.

State v. Anthony Wilson, unpublished opinion, App. Div. Docket No. A-6243-07T4 (November 24, 2009) - "Because the jury instructions regarding accomplice liability were inaccurate and misleading, we reverse and remand for a new trial....

The State's theory of the case was that defendant and the unknown assailants acted in concert with each other and shared a common purpose to commit an armed robbery of Jiminez, to commit carjacking against him, and to possess a weapon, the metal bar, for the unlawful purposes set forth in the indictment.

The State also theorized that defendant and the others conspired to commit the robbery.... It is notable that at the charge conference, it was the State, not defendant, that requested that lesser-included offenses be charged.... By making the proposal, the State acknowledged its recognition that, under its theory of the case, if Jiminez was believed, at least one of the perpetrators committed a first-degree armed robbery, but one or more of the others, including defendant, might have participated in the criminal episode with a lower degree of culpability depending upon their conduct and intent, making them guilty of only a lesser offense....

Nowhere did the judge instruct the jury that even if one or more of the perpetrators other than defendant committed a first-degree armed robbery against Jiminez, defendant could be found guilty of one of the lesser-included offenses if the jurors were not convinced beyond a reasonable doubt that defendant himself engaged in conduct and acted with a purpose to commit that armed robbery....

Instead, the instructions had the capacity to mislead the jury into believing that accomplice liability required a commonality of intent and purpose between the accomplice and principal. In going through each of the lesser-included offenses to first-degree robbery, the judge did not make any mention of accomplice liability principles and how defendant could have been guilty of one of those lesser-included offenses even though one or more of the other perpetrators may have been guilty of any one or more of the greater offenses....

[I]n these circumstances, it would be clearer if the jury were first instructed on first-degree robbery as the charged offense, and then given a separate and distinct charge on second-degree robbery, pointing out, of course, the difference of the missing element that would elevate it to first degree.

In doing so, it would be made clear to the jury that second-degree robbery is a separate offense from first-degree robbery and requires separate consideration as to its elements in terms of accomplice liability principles. We refer this issue to the Committee on Model Criminal Jury Charges for its consideration." (Karen E. Truncale, A.D.P.D.)
http://www.judiciary.state.nj.us/opinions/a4243-07.pdf

Proper jury instructions are an essential part of a criminal trial. In this recent case decided on appeal, it was held that the trial judge failed to give the jury adequate instructions regarding the law, warranting a reversal of the defendant's NJ criminal conviction. Summary by Mark Friedman.

State v. Michael A. Walker, unpublished opinion, App. Div. Docket No. A-5809-07T4 (November 5, 2009) - Conviction for attempted criminal trespass reversed. "[W]e are satisfied that the court's charge on the offense of attempted criminal trespass was insufficient....

The trial court did not include ... a reference to the necessity of the offense having been committed in a dwelling, an essential element of the fourth-degree offense of criminal trespass. The statutory definition of structure that the trial court did provide to the jury, taken from N.J.S.A. 2C:18-1, includes all structures and does not make the distinction between a dwelling and other structures essential to
the degree of trespass in N.J.S.A. 2C:18-3a.

Absent a finding by the jury that this offense involved a dwelling, defendant could not be convicted of a fourth-degree crime; the offense would be a disorderly persons offense.... [T]he most that may be gleaned from the jury's verdict is that they found him guilty of attempting to commit a disorderly persons offense. Our criminal code, however, does not recognize such an offense." (Michael C. Kazer, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a5809-07.pdf

This recent criminal trial appeal was decided by the Appellate Division. The trial judge in the case gave the jury what is sometimes known as a "dynamite charge" - instructing them to continue deliberating even after they had announced they were deadlocked. Summary by Mark Friedman. Speak with an experienced New Jersey appeal lawyer 24-7.

State v. Uche Adim, ? N.J. Super. ?, 2009 N.J. Super. LEXIS 237 (November 12, 2009) - Convictions reversed. "Defendant contends that he is entitled to a new trial because, after the jurors reported that they were 'not in agreement' and were each 'firm' on that decision, the judge gave them an instruction to deliberate further that impermissibly pressured them to reach a verdict.

Because the supplemental instruction was coercive and accompanied by the judge's outline of the State's evidence, we agree that a new trial is warranted.... The supplemental charge given to defendant's jury did not include the first sentence of the approved charge, which explains the relationship between collective deliberations and individual judgment.

Instead, these jurors were given two descriptions -- one on the meaning of a juror's oath and one on a juror's 'responsibility' -- both defined the obligation with reference to return of a verdict.... [I]n the final analysis this jury was left without a clear explanation of the relationship between a juror's duty to deliberate and a juror's duty to refrain from relinquishing individual judgment.

If the judge had given the Court-approved instruction, the jurors would have had that essential explanation. The duty is not a duty to return a verdict; an instruction that so defines the duty is coercive and inherently confusing....

When the jurors were unable to agree after additional deliberations on the following day, the judge provided a concise and abbreviated outline of the evidence. 'You have four witnesses in this case, and the stipulated evidence, and that's it.'

After naming each witness and identifying the subject of his or her testimony, the judge concluded: 'That's the evidence.' This concise outline tended to demonstrate what the judge implied the night before -- this case was not complicated and could be resolved by adequate and impartial jurors performing their duty given sufficient time. It is difficult to conclude that a juror given that simple outline would not be influenced to conclude that any doubt based upon complexities was an unreasonable doubt." (Nancy Ferro)
http://www.judiciary.state.nj.us/opinions/a4962-05.pdf

It is generally bad form to play Monday morning quarterback after another criminal defense attorney. However, this recent case decided on appeal is a real head-scratcher. In this case, the defense attorney insisted that a detective, from the same prosecutor's office that was prosecuting his client, remain on the client's jury. This was despite the detective-juror having known personally the State's key witness in the case - his fellow officer.

State v. Fuquan Morgan, unpublished opinion, App. Div. Docket No. A-0858-07T4 (November 2, 2009) - Denial of PCR reversed, case remanded for evidentiary hearing.

"In this appeal, we examine whether defendant was deprived of the effective assistance of counsel when his attorney insisted that a detective employed by the prosecutor's office remain in the jury venire. The detective eventually served on the jury, which convicted defendant. Because the record does not suggest a reasonable tactical basis for defense counsel's unorthodox position, we vacate the order denying post-conviction relief and remand for an evidentiary hearing....

The detective was employed by the office that was prosecuting this defendant and the detective knew the arresting officer, whose credibility was a key issue. The judge, as he indicated ... would undoubtedly have sustained any defense objection to the detective being in the venire. Although the record on appeal is not complete, a defense objection or application at any stage during jury selection would have undoubtedly required the detective's exclusion from the jury....

However, the limited record on appeal, as we have indicated, reveals that defense counsel was insistent on the detective remaining in the venire and was quite willing to allow the detective to take a seat on the jury and deliberate on defendant's guilt....

In the only clear statement in the record on appeal as to defense counsel's tactic regarding the detective, which was quoted earlier, she only indicated that she 'couldn't make that determination now' but insisted that he remain in the venire.

Thus, there is nothing in the record on appeal that would reveal whether defense counsel had made a sound strategic decision in insisting that the detective remain in the venire and in allowing him to ultimately sit on the jury." (Philip Lago, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a0858-07.pdf

This recent appeal was decided by the N.J. Superior Court - App. Div. pertaining to witness identifications in a criminal trial. Summary by Mark Friedman.

State v. Jason R. Farley, unpublished opinion, App. Div. Docket No. A-6337-07T4 (November 20, 2009) - "[Defendant] contends that the trial court erred in admitting the victim's out-of-court identifications of him because they were unduly suggestive, and that they tainted the victim's in-court identification at trial....

We affirm ... as to the admission of the victim's out-of-court identification of defendant from a photograph, but remand for an evidentiary hearing as to the so-called 'show-up' identification.... There is sufficient credible evidence here to support the trial judge's ruling to admit J.S.'s out-of-court photographic identification.

Officer Larrison did not make suggestive comments to J.S. before she viewed the photograph. Rather, he only asked her if she recognized the individual. The manner of the procedure was not impermissibly suggestive....

We have less confidence, however, about the ensuing 'show-up' identification by J.S. at defendant's residence.... J.S. testified at the Wade hearing that Officer Larrison told her 'the dogs had gone from my house and had led them to his house.' That testimony raises significant concerns about suggestiveness.

There was no need for the police to share that canine-tracking information with the victim before she was driven to defendant's house. Once at defendant's house, J.S. saw only defendant and two uniformed police officers, illuminated by Officer Larrison's spotlight.

This physical arrangement also has inherent suggestive aspects. Defendant was the sole civilian standing near two police officers, illuminated only by the light of a police car. Even though J.S. stated that she was not pressured by any police officer to make a positive identification, the dogtracking statement to her, coupled with the physical setting of the show-up and the surrounding scene, raises significant concerns about the reasons for her certitude....

Given the difficulty of this issue, the evolution of the law following this trial, and the poorly-developed record here concerning any deviations from the Guidelines, we deem it most prudent to remand the show-up issue to the trial court, to be reevaluated in light of Henderson and the potential application of a presumption of inadmissibility, or, alternatively, as Henderson also suggests, a possible 'shifting of the burden of persuasion' to the State 'regarding the suggestiveness of the procedure.' Henderson, supra, 397 N.J. Super. at 414, n.9." (Alison Perrone, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a6337-07.pdf

The following DFYS appeal was recently decided by the Appellate Division, finding that a defendant's failure to appear at a factfinding hearing does not warrant a default to be entered when the defendant's attorney appeared on her behalf and the defendant did not violate any court order. Summary by Mark Friedman.

DYFS v. P.W.R., L.C., AND C.R., Jr./Matter of A.R., ? N.J. Super. ?, 2009 N.J. Super. LEXIS 241 (November 19, 2009) - "The judge in this Title 9 action defaulted a defendant because she did not attend the factfinding hearing even though her attorney appeared to represent her interests.

We conclude that, unless warranted by defendant's failure to comply with a prior order and the potential for default was adequately noticed, a judge is not authorized to enter a default in this circumstance. However, because the default had no meaningful impact, we affirm.... A default based upon the failure to comply with an order requires as a predicate that the defendant received adequate notice that default may follow a failure to comply....

As we have explained, the prior order did not indicate that defendant would be defaulted if she failed to appear for the factfinding hearing. Moreover, even if it were possible to parse the language of the prior order in a way that would suggest otherwise, a court should not enter default when fundamental fairness counsels against it....

In urging that we uphold the judge's decision to enter default in this case, the Division relies upon N.J.S.A. 9:6-8.42, which declares that '[i]f the parent or guardian is not present, the court may proceed to hear a complaint under this act only if the child is represented by a law guardian.' Proceeding in a party's absence is not the same as entering default....

As the judge declared in entering default here, defendant was precluded from putting on 'an affirmative case.' What the judge meant by this was not defined, but the common understanding attributable to this phrase would suggest that the default barred defendant from calling witnesses or offering other evidence. Such a ruling was not authorized or remotely suggested by N.J.S.A. 9:6-8.42." (Mary Potter, Designated Counsel; Melissa R. Vance, A.D.P.D., Law Guardian)
http://www.judiciary.state.nj.us/opinions/a1060-08.pdf

The following appeal was recently decided pertaining to DYFS cases and finding that corporal punishment, under the facts, did not constitute abuse or neglect. Summary by Mark Friedman.

DYFS v. E.G.P. and C.P., unpublished opinion, App. Div. Docket No. A-1238-08T2 (November 6, 2009) - Order finding substantiated abuse and placing E.G.P.'s name in the child abuse registry reversed.

"In departing from the ALJ's finding of no excessive corporal punishment, the Director specifically noted the eye injury to C.J. and the apparent force used to paddle both girls, evidenced by the fact that the paddle broke during the paddling. A finding of excessive corporal punishment inflicted upon C.J. and Z.J. does not, however, complete the definition of abuse or neglect under N.J.S.A. 9:6.8-21.

Rather, 'as a part of its burden of proof, [in abuse and neglect cases] the State must still demonstrate by a preponderance of the competent, material and relevant evidence ... the probability of present or future harm.' N.J. Div. of Youth and Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004). This burden is met with proof that C.J. and Z.J. suffered physical, mental or emotional impairment or the risk thereof as a result of E.G.P.'s actions. N.J.S.A. 9:6.8-21(c)(4)(b).

The ALJ expressly found no such impairment or risk of impairment, determining that the incident was 'isolated,' the injuries were not serious, and there was no impairment or 'imminent danger of becoming impaired.' The Director did not reject these factual findings and in fact agreed that the actual harm to the teenagers was not 'critically severe.'

While we discern no basis to disturb the Director's finding that E.G.P.'s action constituted excessive corporal punishment, the absence of proof of the 'probability of present or future harm' to C.J. and Z.J., who were adults by the time of the hearing, renders the Division's proofs lacking as to an essential element in the definition of abuse or neglect.... As such, we are constrained to reverse." (Drew A. Molotsky)
http://www.judiciary.state.nj.us/opinions/a1238-08.pdf

The following criminal case was recently decided on appeal pertaining to the State's failure to produce an expert witness from a GPS manufacturer. The State sought to introduce evidence from the defendant's GPS despite the absence of expert testimony. Summary by Mark Friedman.

State v. Eric Pittman, unpublished opinion, App. Div. Docket No. A-2569-08T4 (November 4, 2009) - Order denying admission of evidence from Global Positioning System (GPS), State's motion for reconsideration, and State's motion to reopen affirmed.

"Specifically, the State sought to introduce evidence of the location of defendant's Yukon motor vehicle, on which a GPS unit had been installed pursuant to court order, to show that the Yukon traveled to the vicinity of an apartment in Edison where guns, drugs, and drug paraphernalia were later seized pursuant to a search warrant.

No independent surveillance corroborated defendant's location and travel on the day in question.... [T]he State [argued] that an expert from Orion was not necessary for admission of the GPS evidence, because the device's technology has been generally accepted as scientifically reliable.... [The trial court concluded] that while it was satisfied the GPS system was an appropriate technology in general, 'the question came down to this particular system, the Orion system ... that was installed by the county prosecutor's office in the defendant's vehicle.

Whether or not this system was an appropriate method of calculating one's position in the world.'... Here, the trial judge decided that expert testimony, beyond that of McDonald, who attested only to the acceptance of GPS technology in general, was essential to determining the accuracy and trustworthiness, and therefore admissibility, of the particular GPS device used in this case.

We agree.... The State's belated effort to reopen the N.J.R.E. 104 hearing nine months after commencement of the proceeding and seventeen months after the issue was raised is simply too little, too late. The State declined many requests and opportunities to present the expert proof deemed necessary by the court to close the gaps identified in McDonald's and Palfy's testimonies. Moreover, when the State finally relented after the close of evidence and resolution of the issue, it failed to make an offer of proof to assure the court that its expressed concerns would be satisfied by the proposed testimony." (Joshua D. Altman; Steven D. Altman, on the brief).

http://www.judiciary.state.nj.us/opinions/a2569-08.pdf

Naturally, less than a week after writing my last entry on this topic, the New Jersey Superior Court - Appellate Division weighed in on whether a different officer who administers the breath test may conduct the 20-minute observation period. In a decision that offers a mixed back for NJ DWI-DUI defendants and their attorneys, the court in State v. Ugrovics held that yes, a different officer may do so.

The court held that "Consistent with the underlying principles articulated by the Court in Chun, we hold that the State is only required to establish that the test subject did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the test results for a period of at least twenty minutes prior to the administration of the Alcotest. The essence of this requirement is to ensure that the test subject has been continuously observed during this critical twenty-minute window of time. The identity of the observer is not germane to this central point. The State can meet this burden by calling any competent witness who can so attest."

This is a departure from the Law Division's unpublished decision in State v. Nucifora, which held that the Supreme Court's decision in State v. Chun clearly held that it must be the same officer. Further, the court in Ugrovics appears to ignore the clear language of the Supreme Court in Chun.

Nevertheless, Ugrovics is clear that there must be testimony from an officer who can attest that the defendant was continuously observed for the 20 minutes prior to the administration of the breath test to ensure that the subject did not regurgitate alcohol into his or her mouth.

The following criminal appeal was recently decided by the New Jersey Superior Court - Appellate Division. Summary by Mark Friedman.

State v. Franklin Kincey, Felisha Spencer, and Beverly Oliphant, unpublished opinion, App. Div. Docket No. A-0058-09T4 (November 4, 2009) - Order denying admission on State's case of evidence obtained through a judicially-authorized wiretap remanded for further consideration on the record as presented on appeal.

"As the State has recognized, as a general rule, a trial court's determination whether to admit evidence will be reversed only if it constitutes an abuse of discretion.... However, to apply that standard in the present case is difficult, because the State's reasons for admission of the proffered evidence have been crystallized on appeal, and the identity of the wiretaps that the State considers evidential has been refined. We disapprove of the procedures thus employed by the State. Nonetheless, we regard the evidentiary issues presented on appeal to be of substantial significance to both the State and the defendant. As a consequence, we decline to determine this matter on the basis of the trial court record as it presently exists, finding it preferable to remand the issue of the admissibility of the eleven conversations upon which the State now focuses to Judge Callahan for his further review in light of the arguments raised on both the State's and Kincey's behalf on appeal. We express no opinion with respect to the proper resolution of the issues raised." See also JOINDER AND SEVERANCE. (Eric V. Kleiner for Kincey; Nathan Kittner for Spencer)
http://www.judiciary.state.nj.us/opinions/a0058-09.pdf

The following DWI-DUI appeal was recently decided by the New Jersey Superior Court - Appellate Division dealing with the interplay between subsequent DWI-DUI and refusal conviction sentences. Summary by Mark Friedman.

State v. Joseph Eckert, ? N.J. Super. ?, 2009 N.J. Super. LEXIS 239 (November 16, 2009) - Reversed and remanded. This appeal required the court to decide a sentencing issue concerning the interplay between the driver's license suspensions that are required following a conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), when, by virtue of the 'step-down' provisions of the DWI statute, the DWI conviction is treated as a first offense, thereby permitting a license suspension of three months.

Continue reading "DWI-DUI / Refusal Sentencing and Double Jeopardy" »

The following appeal was recently decided by the New Jersey Superior Court - Appellate Division dealing with cumulative error during a criminal trial. Summarized by Mark Friedman of the New Jersey Public Defender's Office.

State v. Thomas Stiles, unpublished opinion, App. Div. Docket No. A-5541-05T4 (November 18, 2009) - Conviction reversed because of errors, individual and collective, all stemming from or made more prejudicial by the testimony of police officer which "impermissibly interfered with the jury's ability to independently weigh credibility....

The State's case rested primarily upon the testimony of Davila, an individual with a significant criminal history. The State also had available the wire recordings and defendant's own taped statement as additional proof. The body wire conversations, however, were at best difficult to understand; the jury did not listen to the tapes during their forty-five minute deliberation.

In his self-serving recorded statement, defendant attempted to explain away the import of his conversations with Davila.... Chopek's testimony, therefore, became pivotal. And he vouched for Davila's credibility, and attacked the credibility of defendant's version of events.... Chopek presented himself as more of an expert witness than a fact witness, by endorsing Davila's testimony as believable and casting aspersions on defendant's credibility. As he told the jury, 'the proof is also my credibility and what I heard.'...

Defendant also contends that the court should have cautioned the jury to scrutinize the recorded conversations with great care because of both the audibility problems and Chopek's characterizations.... State v. Kociolek, 23 N.J. 400 (1957), requires that a jury be instructed to closely scrutinize oral statements offered as evidence because of the generally recognized risk of inaccuracy and errors in communication....

In this case, where no transcript was provided to the jury, and where they heard the poor-quality recording only once, an instruction about the unreliability of the spoken word might have been helpful to the jury. In light of Chopek's endorsement of Davila's credibility, his characterization of defendant's statements as nothing more than 'spin,' and his comments about defendant's intent based on his recollection of the recorded conversation, we cannot be certain that the omission did not unfairly contribute to the verdict.... [Defendant also] sought to compel the State to redact references to domestic violence and references to Stiles's accusation that he molested their child....

The references to domestic violence and child molestation were highly prejudicial, and not necessary in light of the other equally probative and less prejudicial evidence available. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 500 (1999). The references to domestic violence and child molestation could easily create 'undue prejudice, confusion of issues, or mislead[] the jury.' N.J.R.E. 403. They should have been excluded, as the probative value was significantly outweighed by the potential prejudice to defendant.... [A]lthough the court did give the jury a limiting instruction as to the alleged domestic violence, the court merely said that the jury should not assume that defendant had been charged with domestic violence simply because confrontations occurred.

The judge did not tell the jury that they could not use this evidence in order to find defendant had a propensity towards violence and was therefore more likely than not to have committed the crime. The judge did not explain to the jury that just because of these past conflicts, they could not conclude that defendant had a propensity to violence.... [Finally,] In his summation, the prosecutor pointed out that this was not a victimless crime. He said that for the rest of her life Stiles would have to live with the knowledge that 'when that doorbell rings,' it might not be police officers, but rather, 'Davila or someone just like him. A career criminal that wants money and someone has offered it to him.'... [T]he prosecutor impermissibly shifted the focus
away from whether the State had met its burden of proof to establish the statutory elements beyond a reasonable doubt, to the need to protect the victim from further harm in the future. This shift in focus is improper....

In the context of a trial in which a police officer vouched for his own credibility and that of the State's principal witnesses, as well as expressed his disbelief of defendant's taped interview, the prosecutor's argument that the jury should convict defendant in order to protect the victim in the future warrants a new trial. The inflammatory notion that a conviction was necessary to protect the victim had the capacity to produce an unjust result." (M. Virginia Barta, A.D.P.D.)
http://www.judiciary.state.nj.us/opinions/a5541-05.pdf

The following New Jersey appeal was recently decided by the New Jersey Supreme Court dealing with an employer's ability to select and retain defense attorneys for its employees during a grand jury investigation of the company.

IMO Grand Jury Investigation, ? N.J. ?, 2009 N.J. LEXIS ? (November 23, 2009) -- Order denying disqualification affirmed. "Confronted with a grand jury inquiry that commanded the testimony of several of its employees, an employer elected to provide and pay for counsel to those employees for purposes of that investigation.

Fearing that having individual employees/grand jury witnesses represented by counsel retained and compensated by the putative target of the grand jury inquiry violated several of the Rules of Professional Conduct, the State moved to disqualify those counsel.... Harmonizing RPC 1.8(f), RPC 1.7(a)(2), and RPC 5.4(c) results in a salutary, yet practical principle: a lawyer may represent a client but accept payment, directly or indirectly, from a third party provided each of six conditions is satisfied

Those conditions are: (1) the informed consent of the client is secured; (2) the third-party payer is prohibited from, in any way, directing, regulating or interfering with the lawyer's professional judgment in representing the client and the lawyer-client relationship remains sacrosanct; (3) there is no current attorney-client relationship between the lawyer and the third-party payer; (4) the lawyer is prohibited from communicating with the third-party payer concerning the substance of the representation of the client, which includes redaction of details from any billings submitted to the third-party payer; and (5) the third-party payer pays all such invoices within the regular course of its business, consistent with the manner, speed and frequency it pays its own counsel.

The final condition is that the third-party payer shall not be relieved of its continuing obligation to pay without leave of court brought on prior written notice to the lawyer and the client. In this application, the third-party payer shall bear the burden of proving that its obligation should cease. If a third-party payer fails to pay an employee's legal fees and expenses when due, the employee shall have the right, via a summary action, for an order to show cause....

In sum, through the combined product of the good faith of an employer, the diligence of competent counsel and the exercise of a trial court's supervisory authority, the net result of the company's retention and payment of counsel for its employees complies with the Rules of Professional Conduct. For these reasons, the trial court properly denied the State's motion to disqualify counsel." (Lawrence S. Lustberg for respondent attorneys; Richard A. Rafanello for company; Nicholas C. Harbist for amicus curiae ACDL-NJ)
http://www.judiciary.state.nj.us/opinions/supreme/A8008StateGrandJuryInvestigation.pdf

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No person is to be placed in jeopardy more than once for the same offense. The Fifth Amendment of the United States Constitution embodies that principle, and it is binding on the states by virtue of the Fourteenth Amendment. See State v. Ebron, 61 N.J. 207, 214-15 (1972) (citing Benton v. Maryland, 395 U.S. 784, 79689 S. Ct. 2056, 2063, 23 L. Ed. 2d 707, 717 (1969)).

It is important to note at the outset that the New Jersey Supreme Court has determined that motor vehicle violations are within the category of offenses subject to the double jeopardy clause. State v. Dively, 92 N.J. 573, 586 (1983).

New Jersey's double jeopardy jurisprudence mirrors the federal standard by incorporating the 'elements test' enunciated in Blockburger v. United States, 284 U.S. 299, 303-304, 52 S. Ct. 180, 181-182, 76 L. Ed. 306, 309 (1932), and the 'evidence test' enunciated in Illinois v. Vitale, 447 U.S. 410, 420, 100 S. Ct. 2260, 2267, 65 L. Ed. 2d 228, 238 (1980). Dively, supra, 92 N.J. at 578, 582-583; State v. DeLuca, 108 N.J. 98, 102, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987).

Continue reading "Double Jeopardy Law in New Jersey" »

It was held in State v. Brennan, 229 N.J. Super. 342 (App. Div. 1988) that when a police officer neglects to sign a summons and complaint within the statute of limitations period, that failure constitutes a fatal defect to the ability of the State to proceed. However, Brennan was overruled by State v. Fisher, 180 N.J. 462 (2004) which held that an officer may correct a technically invalid ticket by signing it even after the limitations period. Therefore, an unsigned ticket generally does not mean that your ticket will be automatically dismissed.