New Jersey Criminal Defense Attorney Blog

State v. Karl Lester Murphy, ? N.J. Super. ?, 2010 N.J. Super. LEXIS 63 (April 22, 2010) - Conviction reversed. "We agree with defendant's contention that the prosecutor's summation exceeded the boundaries of legitimate advocacy when she vouched for the credibility of her witness.... [Defendant] maintains that the prosecutor's argument that Carrasquillo had 'no stake in the outcome of the proceedings' is an instance of prosecutorial misconduct entitling him to a new trial.... Here, defense counsel did object, but the judge overruled the objection by saying in open court, in full hearing of the jury, that the prosecutor's remark was a 'fair comment' on the evidence. Thus, not only did the judge err by failing to strike the offending remark, he compounded the harmful effect of the remark by essentially signaling to the jury his agreement with the prosecutor's argument. The judge's comment had the effect of encouraging the jury to utilize the prosecutor's remark in its overall evaluation of whether it was defendant or Carrasquillo who was telling the truth."

State v. Todd A. Mosby, unpublished opinion, App. Div. Docket No. A-3233-08T4 (April 19, 2010) - Convictions reversed. " [T]he assistant prosecutor had acted improperly by having A.M. brought into the courtroom during his closing argument, having him seated in the front row and identifying him in front of the jury.

The assistant prosecutor explained to the trial court that he had a detective from his office locate A.M. and bring him to court so that he could show that A.M. was not in contempt of court. However, as the trial court observed, once defense counsel determined that he would not seek a warrant for A.M.'s arrest and would proceed with his closing argument, there was no need for the assistant prosecutor to demonstrate to the court that A.M. had not willfully refused to comply with the defense subpoena....

[T]here was no reason for the assistant prosecutor to identify A.M. before the jury during his summation.... Even if this was the assistant prosecutor's purpose, he could have made A.M.'s presence known to defense counsel outside the presence of the jury.... A.M.'s appearance in the courtroom during the assistant prosecutor's closing argument, and the assistant prosecutor's identification of him before the jury, substantially undermined ... defense counsel's closing argument.

A.M.'s appearance suggested to the jury that, despite defense counsel's assertions, the defense had not made a diligent effort to have A.M. testify. A.M.'s appearance also suggested to the jury that, had he testified, A.M. might have contradicted rather than supported defendant's testimony.... [W]e are convinced that the trial court should have granted defendant's motion for a mistrial. In our view, the instruction provided to the jury did not cure the prejudice that resulted from the assistant prosecutor's improper action."

State v. Frank G. Dellisanti, ? N.J. ?, 2010 N.J. LEXIS 387 (April 27, 2010) - Convictions reversed on other grounds. "We agree with defendant and with the Appellate Division that the prosecutor's line of questioning compelled defendant to comment starkly on the credibility of the witnesses against him. If during the retrial the State seeks to emphasize to the jury a lack of believability in the defendant's conspiracy theory, it must do so without asking the defendant repeatedly to comment on
whether another testifying witness or witnesses are lying."

State v. Raymond Grice, unpublished opinion, App. Div. Docket No. A-4328-07T4 (April 8, 2010) - Denial of PCR because it was filed beyond the time limits in R. 3:22-12 reversed, case remanded for evidentiary hearing. "We disagree ... with the judge's conclusion, made without holding a plenary hearing, that the overall circumstances of this case do not present the type of 'exceptional circumstances' that would warrant relaxation of the rule's time limitations....

[T]he identity of the defendants was a crucial issue at the trial. Although we affirmed the conviction, we noted that doing so required 'fine balancing' because of trial errors related to that issue.... Finally, a different Law Division judge granted relief to the co-defendant on the same grounds articulated by Grice, which decision was for some reason not challenged by the State on appeal.... [W]e do not believe that a relaxable procedural bar should prevent him from having the opportunity to seek the same relief based upon the merits of his claims under the very unusual and particular circumstances of this case."

State v. G.C., unpublished opinion, App. Div. Docket No. A-4485-07T4 (April 6, 2010) - Denial of PCR petition reversed, case remanded for evidentiary hearing. "We remand for further proceedings because relaxation of the five-year time bar is warranted under these extraordinary and unique facts. See R. 3:22-12(a). The parties assume that the petition was filed thirteen years after the entry of judgment....

While dated August 20, 1993, so as not to deprive defendant of institutional credits as of that day, defendant was resentenced on the second remand on February 13, 1998. The judgment which was ultimately sustained was entered that day. It constituted the judgment of conviction which defendant now attacks. See R. 3:21-5(b).

We affirmed that judgment, and that judgment only, on April 13, 1999, and the petition of January 31, 2000, was filed within five years of the 1998 judgment. Moreover, there was an earlier petition dated December 28, 1998, which defendant endeavored to file even before the proceedings on direct appeal concluded on April 13, 1999....

Under the totality of these circumstances in which defendant sought PCR even before the direct appellate process was complete, and given Dr. Greenfield's report, [which opined that defendant's "mental condition" was "excusable neglect" for his failure to file his petition within time] the petition should be considered on the merits, and we remand for further proceedings in the Law Division."

State v. Frederick J. Massimi, Jr., unpublished opinion, App. Div. Docket No. A-4424-07T4 (April 30, 2010) - Conviction Reversed. "[Defendant] was found guilty of conspiracy to commit terroristic threats as a lesser-included offense to conspiracy to commit aggravated assault in violation of N.J.S.A. 2C:5-2 and 2C:12-3....

Defendant now argues that 'conspiracy to commit a terroristic threat is not a lesser included offense of second degree aggravated assault [and] therefore, the trial court erred by finding Mr. Massimi guilty of the lesser included offense"....

As the decision to consider conspiracy to commit a terroristic threat was not considered at a charge conference, and defendant did not request or consent its consideration, it must be a true lesser-included offense in order to sustain the conviction....

[W]e agree with defendant that '[c]onspiracy to commit a terroristic threat is not a lesser included offense of conspiracy to commit aggravated assault because of the added element of the threat to commit a violent crime with the intent to terrorize.' The relevant portion of N.J.S.A. 2C:12-3a requires such a threat to 'commit [a] crime of violence with the purpose to terrorize another ...."

Certainly, a second degree aggravated assault is a crime of violence. It is found within Part 1, Subtitle 2 of the Code of Criminal Justice containing 'offenses involving danger to the person.' See also N.J.S.A. 2C:43-7.2d (the history of which reflects, by virtue of its pre-June 2001 provisions, application to second degree aggravated assaults). But while an aggravated assault may terrorize a victim, it need not do so and need not be performed with that purpose. Thus, while N.J.S.A. 2C:12-3 follows the provisions of Chapter 12 of the Code of Criminal Justice dealing with aggravated assaults, it is not a lesser-included offense within the meaning of N.J.S.A. 2C:1-8d."

State v. Kurt Lutchman, unpublished opinion, App. Div. Docket No. A-2745-08T4 (April 6, 2010) - Murder conviction reversed, case remanded for new trial. "In challenging his conviction on PCR, defendant contends that his trial attorney failed to inquire as to the significance of an autopsy finding that the victim had an arteriovenous malformation (AVM) and to consult with a forensic pathologist. Had counsel done so, he would have discovered that there was medical support for the position that Carol's death was not a homicide caused by blunt force trauma, as testified to by the then Bergen County Medical Examiner, but rather the result of a ruptured AVM which led to the subarachoid hemorrhage causing death....

[D]efendant has shouldered his burden on prong one related to his trial counsel's failure to consult a medical expert regarding the AVM issue and to present this aspect of the causation issue to the jury.... [T]rial counsel, during both cross-examination and his summation, argued that there was reasonable doubt regarding whether defendant's blows caused the hemorrhaging in his girlfriend's brain because none of her bones were broken.

Having already decided to present alternative and conflicting theories to create a reasonable doubt as to defendant's guilt and expressly having already pursued the causation argument, it was not within the wide range of professionally competent assistance to ignore the AVM finding in the autopsy report and what it could have led to if further explored by consulting a pathologist.

Here, it was not merely ignored, defense counsel did not even understand what AVM meant and did not bother to find out. The defense of causation could have been supported by scientific testimony which would have strengthened the defense immeasurably....

Defendant's trial counsel was ineffective because there would have been a reasonable probability of a different result if defendant had presented expert testimony that defendant's blows to his victim could not have directly caused the brain hemorrhages which killed her and that instead the hemorrhages were caused by a burst AVM.... While we can only speculate as to how defense counsel might have altered his trial strategy had he engaged a forensic pathologist, it would not be surprising if the defense was less diffused - blaming others for the attack, intoxication, and causation - and more focused test.

We lack confidence in the jury's murder verdict on the causation issue in an effort to create reasonable doubt in the jurors' minds. In any event, we are persuaded that defendant has satisfied the second prong of the Strickland."

Recently, the Law Division in Monmouth and Mercer Counties have issued divergent rulings regarding the use of Control Corp. software to calibrate the temperature probe used in the Alcotest breath testing machine. In Mercer, a judge ruled that substituting the accepted Ertco Hart unit with a less expensive unit was permissible. Most defense attorneys in NJ believe this to have been a very bad decision. More recently, a Judge sitting in Monmouth Superior ruled to the contrary.

In municipal court prosecutions, the defendant initiates discovery simply by making demand of the prosecutor. Rule 7:7-7(c). Both the Rules of Court and case law make it clear that it is the prosecutor's unique function to be responsible for providing discovery when a request is made. Rule 7:7-7(a); State v. Polansky, 216 N.J. Super. 549 (Law Div. 1986); State v. Holup, 253 N.J.Super. 320 (App. Div. 1992).

The New Jersey Supreme Court specifically mentions the Ertco-Hart digital thermometer system, manufactured by Fluke Company, four distinct times in its opinion in Chun. First, under a point heading titled "Requirements Prior to the Admissibility of Alcotest Evidence," the Court states:

Our analysis of the general scientific reliability of the Alcotest is grounded, in part, on our expectation that there will be proof that the particular device that has generated an AIR being offered into evidence was in good working order and that the operator of the device was appropriately qualified to administer the test. This requirement that the test results be supported by foundational proofs for admissibility has been part of our jurisprudence since we decided Romano. There we demanded that, as a precondition for admissibility of the results of a breathalyzer, the State was required to establish that: (1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure. Romano, supra, 96 N.J. at 81, 474 A.2d 1.

In matters relating to the Alcotest, the same general considerations that gave rise to these requirements must, of course, apply. In an effort to address these concerns, the Special Master recommended that certain documents, which he referred to as the "foundational documents," be produced during discovery and that they be admitted into evidence as part of the State's case-in-chief. The documents in question can be described as follows (1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator's credentials of the officer who performed that change; (2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report; (3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator; (4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe; (5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered)); (6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests); (7) Certificate of Analysis 0.10 Percent Solution (used in Calibration-Control); (8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity); (9) Calibrating Unit, New Standard Solution Report, following Calibration; (10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and (12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.

[(Chun, 194 N.J. at 134-135).]

Accordingly, in the Order issued by the New Jersey Supreme Court in Chun, the Court mandates that the State provide 12 specific foundational documents into evidence in DWI prosecutions based on Alcotest readings. These include:

(1) New Standard Solution Report of the most recent control test solution change, and the credentials of the operator who performed that change;
(2) Certificate of Analysis for the 0.10 percent solution used in that New Solution Report;
(3) Draeger Safety Certificate of Accuracy for the Alcotest CU34 Simulator;
(4) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe;
(5) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Instrument;
(6) Calibration Records, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;
(7) Certificate of Analysis for the 0.10 percent solution used in the calibration control test;
(8) Certificate of Analysis for the 0.04, 0.08, and 0.16 percent solutions used in the calibration linearity test;
(9) New Standard Solution Report, following the most recent calibration;
(10) Draeger Safety Certificates of Accuracy for the Simulators used in calibration;
(11) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe used in calibration; and
(12) Draeger Safety Ertco-Hart Calibration Report

Moreover, the Court states:
The parties agree, as well, about certain of the Special Master's recommendations for future revisions in the firmware that will provide additional information on the reported results that the device generates. For example, the parties agree that the firmware should be rewritten so that the AIR, solution change report, and calibration documents include the temperature probe serial number and probe value (Special Master's Finding 2(a)); that if the particular test subject has not received a reportable result, the AIR must include a statement identifying why that occurred (Special Master's Finding 2(e)); and that future calibration, certification and linearity reports should include the serial number of the Ertco-Hart digital temperature measuring system utilized in performing those testing and maintenance operations (Special Master's Finding 2(i)).

[Id. at 89.]
Accordingly, the Court Ordered: "that the State shall arrange forthwith with Draeger for revisions to the New Jersey Firmware utilized in Alcotest 7110 MKIII-C, as needed to accomplish the directives set forth in the Court's opinion regarding the admissibility into evidence of results of Alcotest breath testing, currently New Jersey Firmware version 3.11, as follows ... G. The firmware shall be programmed to include the serial number of the Ertco-Hart digital temperature measuring system utilized as a part of each calibration, certification and linearity report...." Id. at 152.
In State v. Holland, Monmouth County Law Div. 09-069, April 16, 2010, defendant sought to suppress her Alcotest blood-alcohol content readings, citing the use of a Control Corp. thermometer, rather than an Ertco-Hart. The motion was denied in the Municipal Court. However, on appeal to the Law Division, Judge English, granted it and remanded the case for a new hearing without the Alcotest readings.
Judge English reportedly said of the substitution from Ertco Hart to Control Corp., "I don't see how the Attorney General takes that step without ... going back to the Supreme Court if that's what they have to do. Going back to the Master and saying we need to make a change here." Special Master Michael King said in his report to the justices that "the Ertco-Hart temperature measuring system or other similar device" be used, but the Court's ruling in Chun mentioned no such substitution, English said. "I don't know why the Supreme Court wouldn't have added that language if that's what they wanted to do," he added.
It is undisputed in this case that the Alcotest machine used to take defendant's breath samples was last calibrated using Control Corp. software, rather than Ertco Hart. This is impermissible under the clear mandate in the New Jersey Supreme Court's Order issued in Chun. There is a reason why the Court mandated a specific calibration unit to be used on the Drager Tempature Probe - because this was the unit recommended by the Special Master after painstaking research whose findings were adopted by the Court. It is obvious that such calibration units can be made with deviant quality and reliability standards such as any other piece of machinery, equipment, or software. The Alcotest is used to convict defendants of a most serious motor vehicle infraction that carries severe penalties. The temperature probe is an apparatus vital to the proper function of the Alcotest machine. It is therefore crucial that the software used in calibrating such an important instrument be rigorously tested and known to be reliable. The Ertco-Hart calibration unit has passed this test. Control Corp., known as the "cheaper" of the two units, has not.
The State cannot provide the defendant with one of the 12 mandatory foundational documents. The Supreme Court has made no exceptions to this strict requirement. Further, the State cannot be allowed to substitute calibrating units, contrary to the direction of the Supreme Court, simply in the interest of economy. This completely undermines the level of reliability the results of the Alcotest readings in question should be given.

State v. Delia Pape-White, unpublished opinion, App. Div. Docket No. A-0840-08T4 (April 28, 2010) - "[W]e affirm the Law Division's conviction for DWI and reverse the conviction for reckless driving. Based on these determinations, we dismiss the State's cross-appeal....

Since a BAC reading can only be shown by admissible breath or blood tests, not by observation, defendant correctly observes that if the State is successful in appealing the admissibility of the Alcotest results, the .11 percent BAC readings would subject her to higher penalties than if she had not appealed....

The Law Division's ruling suppressing the Alcotest results precluded the State from proving that defendant's BAC was at least .10. Whether correct or not, that decision is not subject to appeal after a judgment of conviction has been entered, because appeal and reversal would 'subject defendant to ... the possibility of conviction of ... an offense carrying a higher penalty.'...

Such an appeal would violate defendant's right against double jeopardy.... [W]e reject the State's contention that the sentence imposed by the Law Division was illegal. The Law Division's factual determinations regarding defendant's guilt resulted in the State securing a DWI conviction. The sentence thereafter imposed was a proper disposition under N.J.S.A. 39:4-50(a)(1)(i)."

DYFS v. R.D./Matter of K.D. and R.D., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 61 (April 22, 2010) - Termination of parental rights affirmed. "Defendant contends the court erred by adopting the findings in the Title 9 action that he abused or neglected his children and incorporating them against him in the guardianship trial. He argues that the court misapplied the doctrine of collateral estoppel to bar relitigation of the issue of abuse under the best interests of the child standard; ignored the exceptions to the general rule; and misinterpreted case law requiring separate litigation where proceedings required different standards of proof....

While DYFS has the burden of establishing abuse or neglect in a fact-finding hearing by a preponderance of the evidence, N.J.S.A. 9:6-8.46(b)(1), the burden of proof in a Title 30 termination case is the clear and convincing evidence standard.... When the underlying finding of abuse, however, is made by clear and convincing evidence and not merely by a preponderance of the evidence, it may support a termination of parental rights....

[T]he court in the abuse or neglect proceeding here applied the higher standard of clear and convincing evidence to determine that defendant sexually abused S.D. and that this behavior placed the physical, mental, and emotional condition of all the children in imminent danger of being impaired.... The fact finding in the abuse or neglect proceeding satisfied the first prong of the best interests standard in the termination proceeding.

All of the requirements for collateral estoppel applied to bar relitigation: the issue of sexual abuse and its impact on the children was in fact litigated in the Title 9 action; defendant could have appealed the prior finding after Judge Johnson entered the disposition order; the determination of this issue was essential to the entry of judgment in the Title 9 action; and the parties essentially were identical....

Moreover, defendant does not argue that he lacked a full and fair opportunity to litigate this issue in the prior action.... We are satisfied that Judge Fineman properly employed collateral estoppel by adopting Judge Johnson's finding by clear and convincing evidence that defendant committed sexual abuse of S.D. when she was in his care and the other children were in the household."

State v. Frank G. Dellisanti, ? N.J. ?, 2010 N.J. LEXIS 387 (April 27, 2010) - Convictions reversed. "Defendant Frank Dellisanti was on trial in Bergen County Superior Court when sheriff's officers from another county arrived to arrest him for an unrelated probation violation.... [T]he record is barren of any indication that defendant voluntarily waived his right to be present during the concluding stages of his criminal trial [i.e., during answers to jury questions and the announcement of the verdict]....

We hold, in the exceptional circumstances presented here, that the wishes, preferences, or convenience of sheriff's officers acting to arrest defendant during jury deliberations cannot be permitted to trump defendant's right under Rule 3:16(b) to insist on being present through to the trial's conclusion and the rendering of the verdict. Because the record does not establish that the Rule's conditions for waiver were satisfied, we must conclude that defendant's right to presence under Rule 3:16(b) was violated, unfairly, through no action of his own.

We therefore reverse and remand for a new trial because the proceedings that were allowed to occur here were defective and unjust.... [N]o decision of our Court has confronted a fact pattern akin to the present case, where a seemingly unwilling defendant was hauled from the courtroom by another vicinage's law enforcement officers while awaiting the jury's return from deliberating on his verdict, and thereby was deprived of the right, clearly granted him under Rule 3:16(b), to be present and face his jury when it returned its verdict....

Moreover, to promote compliance with the Rule's salutary purposes and promises to criminal defendants in particular and to the public at large, we further hold that the trial court must ensure that a warrant from another jurisdiction does not prevent a defendant from being present during his trial. If a defendant wishes to waive his or her presence mid-trial due to the intercession of law enforcement officers of any jurisdiction, the defendant's waiver must be on the record. The trial court must not cede control over his or her courtroom."

DYFS v. N.S. and R.B./Matter if K.A.N., J.B., and K.B., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 54 (April 14, 2010) - Finding of abuse and neglect affirmed. "[N.S. asks] this court to consider ... whether [her] right to counsel of her choice was violated by the denial of her request to substitute criminal counsel as her attorney in the Title Nine proceeding....

We reject N.S.'s predicate argument that her Sixth Amendment right to counsel was implicated when the Family Part denied Lawrence's request for substitution. The Sixth Amendment safeguards an accused's right to counsel to defend a criminal prosecution.... It is not applicable in this civil proceeding. When faced with the temporary loss of parental rights, a parent's right to have legal representation is assured by the due process guarantee of Article I, paragraph 1 of the New Jersey Constitution and by N.J.S.A. 9:6-8.45....

Here, the concern in allowing dual representation by counsel centers on the disclosure of and access to DYFS files, released under Rule 5:12-3, to which the attorney representing a defendant is entitled. Criminal counsel would gain access to records that, by statute, are otherwise confidential due to the State's compelling interest in protecting its child abuse information.... Although our review of Title Nine, federal legislation, and these authorities, counsels against unfettered access to the Division's file outside the parameters of the Title Nine litigation, even for purposes of criminal defense, ... we cannot agree with the wholesale rejection of all such requests....

We conclude these concerns should be addressed by the court in reviewing dual representation requests that might otherwise defeat the statutory confidentiality requirements. For example, after balancing the competing concerns posed, the court may allow dual representation subject to a protective order, which preserves the confidentiality of the source prompting the Division's protective services litigation....

We believe these procedures safeguard the goals of the State to uncover and treat abuse and neglect, and to protect victim children, without unnecessarily sacrificing a parent's right to exercise a desired choice of legal counsel.... Counsel who desire to provide dual representation to a Title Nine litigant, who is also a criminal defendant, have an affirmative obligation to disclose this fact to the court and other counsel. All parties, including the Division and the Law Guardian, must be afforded notice and an opportunity to review the request and address any perceived conflicts or any other overriding confidentiality concerns to be considered by the court in its review."

State v. Orion T. Brabham, ? N.J. Super. ?, 2010 N.J. Super. LEXIS ? (April 30, 2010) - Convictions reversed. "Defendant primarily objects to the denial of his motions to suppress physical evidence seized by a New York parole officer during a search of his home and statements he made to New Jersey law enforcement officers.

Accepting the judge's factual findings, we conclude that the physical evidence was properly admitted but the statements defendant made during a meeting he requested to negotiate a plea should have been excluded pursuant to N.J.R.E. 410....

The judge's factual findings compel us to conclude that N.J.R.E. 410 required exclusion of everything defendant said at the May 8 meeting. Accepting the State's proofs, he found: the presence of law enforcement officers at a meeting with defendant did not just happen but occurred because the meeting was orchestrated by defendant; defendant wanted to 'run the show' and was 'basically orchestrating what [was] going to happen'; he said 'what he want[ed] to say'; and '[h]e wanted to orchestrate a deal ... where everything was combined.'

Those findings ... do not permit any conclusion other than that defendant believed he was attending the meeting he wanted to have -- a meeting to negotiate a global plea agreement resolving multiple burglaries committed in various counties.... In short, we conclude that the State cannot introduce evidence to convince the court that a suspect has volunteered statements and then avoid the legal implications that flow from the proofs presented. It was error to admit these statements after finding that the statements were made under circumstances in which they cannot be admitted in conformity with N.J.R.E. 410."

New Jersey imposes incredibly harsh consequences for owners and drivers of vehicles who operate without liability insurance. If you are caught driving without insurance, obtain liability coverage immediately - meaning the same day if possible - and call a local criminal defense attorney. The consequences for not doing so will be severe, including a 1-year mandatory loss of driver's license, a fine up to $1,000 and community service.

The applicable statute reads as follows:

Any owner or registrant of a motor vehicle registered or principally garaged in this State who operates or causes to be operated a motor vehicle upon any public road or highway in this State without motor vehicle liability insurance coverage required by this act, and any operator who operates or causes a motor vehicle to be operated and who knows or should know from the attendant circumstances that the motor vehicle is without motor vehicle liability insurance coverage required by this act shall be subject, for the first offense, to a fine of not less than $ 300 nor more than $ 1,000 and a period of community service to be determined by the court, and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of conviction. Upon subsequent conviction, he shall be subject to a fine of up to $ 5,000 and shall be subject to imprisonment for a term of 14 days and shall be ordered by the court to perform community service for a period of 30 days, which shall be of such form and on such terms as the court shall deem appropriate under the circumstances, and shall forfeit his right to operate a motor vehicle for a period of two years from the date of his conviction, and, after the expiration of said period, he may make application to the Director of the Division of Motor Vehicles for a license to operate a motor vehicle, which application may be granted at the discretion of the director. The director's discretion shall be based upon an assessment of the likelihood that the individual will operate or cause a motor vehicle to be operated in the future without the insurance coverage required by this act. A complaint for violation of this act may be made to a municipal court at any time within six months after the date of the alleged offense.

Failure to produce at the time of trial an insurance identification card or an insurance policy which was in force for the time of operation for which the offense is charged creates a rebuttable presumption that the person was uninsured when charged with a violation of this section.

One of the most serious traffic violations - tickets - that a driver in New Jersey can face is for improperly passing a school bus. The offense is sometimes issued by an observing officer, but more commonly by a complaining school bus driver. If facing this charge, it is vital to obtain legal counsel right away, as the penalties are severe, including 5 motor vehicle points, mandatory community service, a fine, and possible jail.

The applicable statute reads as follows:

On highways having roadways not divided by safety islands or physical traffic separation installations, the driver of a vehicle approaching or overtaking a bus, which is being used solely for the transportation of children to or from school or a summer day camp or any school connected activity and which has stopped for the purpose of receiving or discharging any child, shall stop such vehicle not less than 25 feet from such school bus and keep such vehicle stationary until such child has entered said bus or has alighted and reached the side of such highway and until a flashing red light is no longer exhibited by the bus; provided, such bus is designated as a school bus by one sign on the front and one sign on the rear, with each letter on such signs at least four inches in height.

On highways having dual or multiple roadways separated by safety islands or physical traffic separation installations, the driver of a vehicle overtaking a school bus, which has stopped for the purpose of receiving or discharging any child, shall stop such vehicle not less than 25 feet from such school bus and keep such vehicle stationary until such child has entered said bus or has alighted and reached the side of the highway and until a flashing red light is no longer exhibited by the bus.

On highways having dual or multiple roadways separated by safety islands or physical traffic separation installations, the driver of a vehicle on another roadway approaching a school bus, which has stopped for the purpose of receiving or discharging any child, shall reduce the speed of his vehicle to not more than 10 miles per hour and shall not resume normal speed until the vehicle has passed the bus and has passed any child who may have alighted therefrom or be about to enter said bus.

For purposes of this section, "highway" means the entire width between the boundary lines of every way whether publicly or privately maintained when any part thereof is open to the public for purposes of vehicular travel.

Whenever a school bus is parked at the curb for the purpose of receiving children directly from a school or a summer day camp or any school connected activity or discharging children to enter a school, or a summer day camp or any school connected activity, which is located on the same side of the street as that on which the bus is parked, drivers of vehicles shall be permitted to pass said bus without stopping, but at a speed not in excess of 10 miles per hour.

The driver of a bus which is being used solely for the transportation of children to or from school or a summer day camp or any school connected activity shall continue to exhibit a flashing red light and shall not start his bus until every child who may have alighted therefrom shall have reached a place of safety.

Any person who shall violate any provision of this act shall be subject to (1) a fine of not less than $ 100.00, (2) imprisonment for not more than 15 days or community service for 15 days in such form and on such terms as the court shall deem appropriate, (3) or both for the first offense, and a fine not less than $ 250.00, imprisonment for not more than 15 days, or both for each subsequent offense. The penalties shall be enforced and recovered pursuant to the provisions of chapter 5 of Title 39 of the Revised Statutes. There shall be a rebuttable presumption that the registered owner of the vehicle which was involved in the violation of this section was the person who committed the act. Any person who suppresses, by way of concealment or destruction, any evidence of a violation of this section or who suppresses the identity of the violator shall be subject to a fine of $ 100.

The Director of the Division of Motor Vehicles may also revoke the license to drive a motor vehicle of any person who shall have been guilty of such willful violation of any of the provisions of this act as shall, in the discretion of the director, justify such revocation, but the director shall, at all times, have power to validate such a license which has been revoked, or to grant a new license to any person whose license to drive a motor vehicle shall have been revoked pursuant to this act

NJSA 2C:36-2. Use or possession with intent to use, disorderly persons offense.

It is illegal in New Jersey to possess basically anything that can be used to inhale, inject, or otherwise ingest an illegal drug.

The applicable statute reads: "It shall be unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale, or otherwise introduce into the human body a controlled dangerous substance, controlled substance analog or toxic chemical in violation of the provisions of chapter 35 of this title. Any person who violates this section is guilty of a disorderly persons offense."

A disorderly persons offense is punishable by up to 6 months in jail and a $1,000 fine. Unfortunately, while a conditional discharge is available for some first time offenders who are caught with under 50 grams of marijuana, it is not available if you are caught only with paraphernalia.

State v. Michael Stuart, unpublished opinion, App. Div. Docket No. A-5060-06T4 (March 30, 2010) - Conviction reversed. "We next address defendant's claim that he was not given notice, prior to the trial, that the State intended to invoke the Three Strikes Law and hence he did not have a meaningful opportunity to evaluate what he contends was the State's pretrial plea offer of a fifteen year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2....

[T]ranscripts [of the pre-trial conference] support defendant's claim that, at least on the record, he was not advised of his possible exposure to life in prison without parole. Both those transcripts and later discussions in the sentencing transcript also strongly suggest that neither his counsel nor the judges conducting those proceedings were aware, prior to trial, that defendant could be subject to the Three Strikes Law. In fact, based on the colloquy at the sentencing hearing, the prosecutor may also have been unaware of this issue.

However, defendant's discussions with his counsel are not of record and would have to be explored in a further evidentiary proceeding.... Because defendant's claim rests in part on facts outside the record, it should be explored at a testimonial hearing.... Because the outcome of the remand hearing may obviate the need for a second trial, ..., the hearing shall be held prior to the trial."

State v. Darius S. Mansoory, unpublished opinion, App. Div. Docket No. A-5735-08T4 (March 17, 2010) - Suppression of evidence affirmed. Although it was proper for the police to impound the car (defendant driver intoxicated, passenger had no license) and open the wallet found during an inventory of the car's contents, "when the officer unfolded the papers found within the wallet, the officer exceeded the permissible scope of the inventory.

The papers did not appear to be valuable. Furthermore, Spahr testified that he unfolded the papers because he suspected that they contained illegal drugs or drug paraphernalia. Therefore, the search of the contents of the papers found in the wallet was not undertaken for one of the purposes identified in [South Dakota v. ]Opperman[, 428 U.S. 364 (1976)].... The search at issue here was not undertaken pursuant to a policy designed to prevent or deter a terrorist attack upon a ferry. As we have explained, the search was in furtherance of the DRPA's policy to inventory the contents of an impounded vehicle."

State v. Jason V. Broom-Smith, ? N.J. ?, 2010 N.J. LEXIS 224 (March 9, 2010) - The Court affirms the Appellate Division's determination that N.J.S.A. 2B:12-6 and Rule 1:12-3, which address the designation of judges, were broad enough to authorize the Berkeley Township municipal judge to issue the search warrant for defendant's house in Dover Township under the circumstances presented in this case.

"Here, when the warrant was sought, the Dover Township Municipal Court was not in session. The Prosecutor's investigator viewed that circumstance as sufficient to satisfy the statutory and regulatory inability standards, thus justifying his resort to the Berkeley Township municipal judge.

We are satisfied, as was the Appellate Division, that the rule and the statute, which were specifically incorporated by the Assignment Judge into his cross-assignment order, are 'broad enough' to authorize the issuance of the warrant under those circumstances.... Nevertheless, in the exercise of our supervisory authority over the courts, we have determined that, going forward, some order and uniformity must be imposed on the cross-assignment procedure.

First, we reiterate that the rule and the statute are co-extensive and authorize cross-assignment only in cases of disqualification or 'inability' to hear a case.... Further, the fact that a particular municipal court is not 'in session,' that is, holding court, does not necessarily mean that the judge is 'unable' to hear a warrant application.... Moreover, the cross-assignment order, which may provide for more than one substitute judge, should prescribe the sequence to which substitute judges are to be resorted. That, in turn, will eliminate any question of judge shopping.... It goes without saying that when a warrant applicant applies to a substitute judge, a record should be made of the reason the application is not being presented to the territorially-appropriate court. Finally, the cross-assignment order should be renewed annually to account for changes in judicial appointments."

State v. J.I.F., unpublished opinion, App. Div. Docket No. A-6270-07T4 (March 4, 2010) - Conviction reversed. "Defendant asserts that his right to a fair trial was violated by the prosecutor's summation. Specifically, he contends that the prosecutor 'suggested that the jury could reach its own conclusions as to how many times prior to this incident the defendant had battered [the victim] despite the fact that no evidence was admitted concerning prior instances of domestic violence.'...

[W]e are satisfied that the prosecutor should not have posed those two above-emphasized rhetorical questions to the jury [asking, 'Do you think this is a one time episode in that house?'] because there was in actuality no evidence of any prior assaults or prior coercion. We cannot say that this 'invitation to the jury to speculate ' had no 'palpable impact' impact on the jury's verdict ..., particularly because the testimony of Dr. Lischick should not have been admitted. We are not satisfied that the judge's curative instruction insulated the jury from any improper speculation. Defendant's motion for a mistrial should have been granted." See also EVIDENCE.

State v. E.A., unpublished opinion, App. Div. Docket No. A-0227-07T4 (March 17, 2010) - Denial of PTI reversed, case remanded for reconsideration by the prosecutor. "Following our review, we conclude, under the circumstances of this case, the Prosecutor's rejection of defendant's application for PTI included irrelevant factors and failed to sufficiently demonstrate a careful consideration of the facts in light of the applicable law....

We also are not persuaded by the Prosecutor's renunciation of the prior inadvertent revelation of an informal policy to reject PTI applications of all Megan's Law offenders. The State's denial of the existence of such an improper policy is belied by the justification analysis submitted.

Pervading the Prosecutor's decision to deny defendant's application is an expressed emphasis on his juvenile adjudication and Megan's Law violation, rather than an analysis of the facts surrounding whether the offense warrants PTI consideration. When pressed during argument, the Prosecutor could not suggest any Megan's Law offender worthy of PTI admission except defendant's brother, who was admitted only after we affirmed the trial court's determination to vacate the Prosecutor's rejection.

Moreover, the State has inaccurately skewed the facts of defendant's juvenile adjudication to apply factor one, failed to review defendant's assertion that he properly registered in Newark when he moved, possibly eclipsing the conclusion defendant willfully evaded his Megan's Law registration requirements, omitted ameliorating information evincing defendant's amenability to correction, misinterpreted factor seven by casting society as the victim of defendant's victimless offense, and disregarded an individualized analysis of defendant's reasonable prospects of rehabilitation with the purposes of PTI."