• Fall 2011 Municipal Court Law Review
  • January 25, 2012 | Author: Kenneth A. Vercammen
  • Law Firm: Kenneth Vercammen & Associates, P.C. - Edison Office
  • 1. DP May Require Forfeit of Public Office. State v. Kennedy 419 NJ Super. 475 (App. Div. 2011)

             The offense of tampering with physical evidence is "an offense involving dishonesty," which requires the forfeiture of public office or employment under N.J.S.A. 2C:51-2(a)(1).


    2. New Expert Testimony Requires Testimony of Acceptability and Reliability. State v. Pittman 419 NJ Super. 584 (App. Div. 2011)        

                New Jersey has not considered the admissibility in a criminal case of the results of the phenolphthalein presumptive test for the presence of blood on a person or object or any other presumptive test utilized for that purpose.  Nonetheless, in this case, evidence of a positive result was introduced, without objection, by a police detective with no prior experience in conducting the test and no understanding of how it functioned or of the possibility of false positive results occurring as the result of the presence of substances other than blood.  The court found the introduction of the test results to constitute reversible error, and in the course of our discussion of the issue, canvassed precedent from other states discussing the conditions for admissibility of the phenolphthalein test and other presumptive tests for the presence of blood.  

    3. Denial of Criminal Motions does not bar OPRA Request. Kovalcik v. Somerset County Prosecutor’s Office 206 NJ 581 (2011)


             The judgment is affirmed to the extent that it concluded that the police and prosecutor office documents are not exempt as protected by an order of confidentiality.  The judgment is reversed to the extent that it held that the documents are also not exempted personnel records.  That aspect of the matter is remanded to the trial court for further proceedings during which the parties shall be given an adequate opportunity to marshal sufficient proofs as the nature of the contents of the particular documents and the specific educational requirements for employment as a detective in the Prosecutor’s Office to enable the court to apply the statute in accordance with the analysis the Court has set forth.


    4. Police did not Require Warrant for Cell Phone Site. State v. Earls 420 NJ Super. 583 (App. Div. 2011)


             The use of cell phone site information, obtained by the police without a warrant from a suspect's cell phone provider to determine his general location, does not violate the Fourth Amendment or its counterpart in the New Jersey Constitution because a person has no constitutionally protected right of privacy in his general location on roadways or other public places.


    5. No Exception to Search Warrant for “Nuisance Abatement.”  State v. Kaltner 420 NJ Super. 524 (App. Div. 2011)


             There is no broad "nuisance abatement" exception under the community caretaking doctrine to the general rule that warrantless entries into private homes are presumptively unreasonable.  In assessing the constitutional tolerance of entry into and search of a home in response to a noise complaint, we employ the "objectively reasonable test," balancing the nature of the intrusion necessary to handle the perceived threat to the community caretaking concern, the seriousness of the underlying harm to be averted, and the relative importance of the community caretaking concern.

             The court holds the test was not met where police officers, responding in the early morning hours to a noise complaint, lawfully entered the home, but thereafter fanned out and searched the entire residence for someone in control, while other less intrusive options were available and no compelling need was presented. 


    6. Injured DWI driver not barred from Sueing Tavern for Dram Shop Violation.  Voss v. Tranquilino 206 NJ 93 (2011)


           The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Lisa’s opinion.


             The bar to litigation in N.J.S.A. 39:6A-4.5(b) can coexist with the Dram Shop Act’s deterrence and liability-imposing principles. An intoxicated person is deterred from driving drunk by losing the right to sue under Title 39 for insurance coverage for his injuries. On the other hand, permitting an injured drunk driver to file an action against a liquor establishment and its servers for serving a visibly intoxicated patron similarly advances the goal of deterring drunk driving. In allowing the latter form of action to proceed, rather than barring it by N.J.S.A. 39:6A-4.5(b), the application of established principles of comparative negligence will apportion properly the responsibility for damages as between dram shop parties and the injured driver.


    7.  DV Reversed where Court Permitted Testimony of Acts not set forth in Complaint. J.D. v. M.D.F.  207 NJ 458


             N.J.S.A. 2C:33-4 a. requires proof of a single communication that was made anonymously, at an extremely inconvenient hour, or in a coarse or offensive language, for the purpose to harass and in a manner likely to cause annoyance or alarm. Subsection c. requires proof of a course of alarming conduct or repeatedly committed acts with the purpose of alarming or seriously annoying the victim. Distinguishing between acts that constitute harassment for purposes of domestic violence and those that are ordinary domestic contretemps can be difficult. Such a determination may depend on the second inquiry required for complaints under the Act.         


      Due process requires that a party in a judicial hearing receive notice defining the issues and an opportunity to prepare. It forbids the trial court from converting a hearing on one act of domestic violence into a hearing on other acts that are not alleged in the complaint. Trial courts should use the allegations in the complaint to guide their questions, and avoid inducing plaintiffs to abandon that history in favor of new accusations.


         Not all offensive or bothersome behavior constitutes harassment. Here, the trial court did not identify which subsection of the harassment statute it was applying. The evidence is not sufficient to support a finding under subsection a. because merely being outside of the home in the morning hours is not harassment and J.D. was unaware he was outside until R.T. alerted her, after which he beat a hasty retreat.


    8.  Defendant Should Assert Speedy Trial on De Novo Appeal.  State v Misurella 421 NJ Super 538


    In this appeal from a DWI conviction, the State concedes that the right not to be subjected to unreasonable delay applies to an appeal, see State v. Le Furge, 222 N.J. Super. 92, 98 (App. Div.), certif. denied, 111 N.J. 568 (1988), and therefore, to a trial de novo in the Superior Court. The court applied the factors established in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and concluded that defendant's speedy trial right was not violated by a 798-day delay from the time he filed his notice of appeal in the Law Division under R. 3:23 until a trial de novo was actually held.


    9.  Text Messages between Parents Not Automatically Harassment.  L.M.F. VS. J.A.F. 421 NJ Super 523


    In this appeal from a final domestic violence restraining order, the court applied the principles articulated by the Court in J.D. v. M.D.F., &under;&under;&under;&under;&under; N.J. &under;&under;&under;&under;&under; (2011), and concluded the trial court erred in finding the predicate offense of harassment. The parties are divorced parents. They used text messaging as the primary means of exchanging information about their two children. The domestic violence complaint alleged harassment based on defendant sending plaintiff eighteen text messages over a three-hour period. The content of the messages was not threatening or menacing in any way. The court also held there was insufficient evidence of a history of domestic violence to substantiate that a restraining order was necessary to prevent further abuse as required under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).


    10.  Personal Use Does not Permit Growing Medical Marijuana.  State v. Wilson 421 NJ Super 301


    The principal issue in this is case is whether the personal use defense for manufacturing a controlled dangerous substance, N.J.S.A. 2C:35-2, applies to the growing of marijuana under N.J.S.A. 2C:35-5. After reviewing the relevant statutory language, as well as the purpose for the personal use exemption, we affirm the trial court's determination that there is no personal use exemption for growing marijuana.


    11.  Lab Report Not Admissible in DWI Case.  Bullcoming v New Mexico 564 U. S. &under;&under;&under;&under; (2011) 131 S. Ct. 2705 No. 09¿10876.  Decided June 23, 2011


             The Sixth Amendment’s Confrontation Clause gives the accused “[in all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[testimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachusetts, 557 U. S. &under;&under;&under;, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements.  


             The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.  



    12.  Laurick Motion Requires Prima facie Case for Relief.  State v. Weil App. Div. 2011, A-5999-09T4, decided July 5, 2011, Unpublished.


             In this appeal, defendant urged the court to revisit State v. Bringhurst, 401 N.J. Super. 421 (2008), and hold, in essence, that a defendant who files a Laurick post-conviction relief petition to obtain relief from enhanced penalties for driving while intoxicated based on a purported uncounseled prior DWI conviction is absolved from establishing a prima facie case for relief where her time delay has resulted in destruction of most of the records pertaining to the prior conviction.  The court declines to do so and affirm defendant's conviction. Unpublished.


             Editorial Assistance provided by Associate Editor Christian Vera and Matthew Sheptuck. Mr. Vera will be entering his 3rd year at New York Law School. Mr. Sheptuck will be entering his 2nd year at Georgetown University Law Center.