1. Can Judge rely on suppression motion testimony without
defendant’s consent? No
Court cannot consider
Sup Mt testimony unless agreed by defendant
State v. Gibson 219 NJ 227 (2014)
State v. Gibson 219 NJ 227 (2014)
Due to the fundamental differences
between a pre-trial motion to suppress and a trial on the merits, the best
practice is to conduct two separate proceedings. However, the motion record may
be incorporated into the trial record if both parties consent and counsel are
given wide latitude in cross-examination. Where the evidence from a pre-trial
hearing is improperly admitted at the trial on the merits, the correct remedy
is remand for a new trial.
2. Driving
While Suspended Conviction Upheld Although DWI Conviction Vacated. State v.
Sylvester 437 N.J. Super. 1 (App. Div.
2014)
N.J.S.A. 2C:40-26b makes it a fourth degree offense
to drive while one's license is suspended or revoked for a second or subsequent
conviction for driving a car while under the influence of alcohol (DWI). In a
bench trial before the Law Division on this charge, defendant argued that her
second DWI conviction had been voided ab initio by the municipal court when it
granted her PCR petition two months after she was indicted for one count of
violating N.J.S.A. 2C:40-26b. Thus, defendant argues the State cannot rely on
this vacated second DWI conviction to meet its burden of proof under N.J.S.A.
2C:40-26b. The trial court rejected this argument. The Appellate Division
affirmed.
It is undisputed that at the time defendant
committed this offense, she was aware her driver's license had been revoked by
a presumptively valid second conviction for DWI. The court relied on State v.
Gandhi, 201 N.J. 161, 190 (2010) to hold that a second DWI conviction vacated
through PCR granted by a court after a defendant engages in conduct prohibited
in N.J.S.A. 2C:40-26b, cannot be applied retroactively to bar a conviction
under this statute.
3. If mandatory 180 days without parole,
can’t get credit for inpatient State v. French 437 NJ Super. 333 (App. Div 2014)
A
sentence of 90 days in jail followed by 90 days in an inpatient drug
rehabilitation program does not satisfy the "fixed minimum sentence of not
less than 180 days during which the defendant shall not be eligible for
parole" mandated for the fourth-degree crime of operating a motor vehicle
during a period of license suspension for multiple convictions of driving while
intoxicated. N.J.S.A. 2C:40-26(b).
4 Failure to read refusal warnings not a
defense to DWI State v Peralta 47
NJ Super. 570 (App.Div 2014)
In this appeal, defendant argued the police failure to read to him the
standard statement referred to in N.J.S.A. 39:4 50.2(e) – which, in its current
iteration, largely but not entirely advises of the consequences of refusing to
provide a breath sample – requires reversal of his DWI conviction based solely
on an Alcotest reading. The court held this alleged failure was not fatal to
the DWI conviction because defendant did not refuse to provide a breath sample.
5 . DL suspension should not be stayed
after conviction unless findings of fact. State v Robertson 438 N.J.Super.47 (App. Div. 2014)
In this appeal from a DWI conviction, the court rejects defendant's
argument that the Alcotest results should have been excluded because he was
denied discovery of certain repair records, which were created by the
Alcotest's manufacturer, and certain downloaded data, which the State routinely
erases. The court concludes the records were not discoverable under Rule 7:7-7,
nor did they constitute Brady material.
The court also addressed the
unexplained decisions of both the municipal court and the Law Division to stay
defendant's license suspension pending appeal. The court instructs trial courts
that any stay of a license suspension after a DWI conviction should be
supported by adequate findings of fact and conclusions of law, and should
comply with standards governing the grant of a stay pending appeal set forth in
Garden State Equality v. Doe, 216 N.J. 314, 320 (2013).
6 Court permits police to ignore guidelines requiring Alcohol influence
report be given to DWI suspects
State v Sorensen __
NJ Super. __ (App. Div. 2015) A-3797-13T4
After the Law Division suppressed defendant's blood alcohol content
(BAC) results, it sentenced her on her guilty plea to driving under the
influence. Nonetheless, the State's appeal of the suppression was not barred by
double jeopardy because defendant had entered a conditional plea to, and been
sentenced for, the per se violation in Municipal Court.
The
Law Division suppressed the BAC results because the Alcotest operator did not
give a copy of the Alcohol Influence Report (AIR) to the arrestee in the police
station. Although State v. Chun, 194 N.J. 54, 82 (2008), said the operator
"must" do so, that comment about recommended Alcotest procedure did
not override the statutory standard only requiring the police to give a copy of
the breath test results upon request. N.J.S.A. 39:4-50.2(b). In any event, the
timing of copy delivery does not affect the validity of the test results.
Moreover, police must advise arrestees of their ability to request a copy and
to get an independent test. Therefore, suppression is not warranted in the absence
of prejudice. Furthermore, a suppression remedy should not be imposed
retroactively.
Judge Sabatino concurs in the result. Given the time-sensitive dissipation
of alcohol in the bloodstream, he believes Chun sensibly requires the operator
to provide a copy of the AIR contemporaneously, consistent with the policies of
the Attorney General and the State Police, and that the statute does not
foreclose affording such added procedural protection to tested drivers.
He agrees that suppression in this case and retroactive relief are not
warranted.
Ken Vercammen
cases to discuss
7.
Driver is not subject to criminal driving while suspended if DWI
suspension period expired prior to driving
State v Perry __ NJ Super. ___ (App. Div. 2015)
Docket
A-1767 -13T2
N.J.S.A. 2C:40-26(a) and (b)
make driving while suspended under specified circumstances a fourth-degree
crime, punishable by a mandatory minimum jail term of 180 days, where the
underlying suspension arose from driving while intoxicated (DWI), N.J.S.A. 39:4-50,
and/or refusal to submit to chemical testing, N.J.S.A. 39:4-50.4(a). The court
concluded in these appeals that prosecutions under the statute can be brought
only if the act of driving while suspended occurs during the court-imposed term
of suspension.
Note- Ken V successfully represented four of the winning parties before
the Law Division. The Appellate Division affirmed the well-reasoned opinion of
Hon. Douglas Wolfson JSC.
Consolidated with 5 other cases.
8. Supervising chemist can testify in vehicular homicide if they
independently verified correctness of blood test results State v. Michaels 219 NJ 1 (2014)
Defendant’s confrontation rights were not violated by the admission of Dr.
Barbieri’s report or his testimony regarding the blood tests and his
conclusions drawn therefrom. Dr. Barbieri was knowledgeable about the testing
process, independently verified the correctness of the machine-tested processes
and results, and formed an independent conclusion about the results. Defendant’s
opportunity to cross-examine Dr. Barbieri satisfied her right to confrontation
on the forensic evidence presented against her.
9. Supervising chemist can testify in rape case if they independently
verified correctness of DNA results State v. Roach 219 NJ 58 (2014)
Defendant’s confrontation rights
were not violated by the testimony of the analyst who matched his DNA profile
to the profile left at the scene by the perpetrator. Defendant had the
opportunity to confront the analyst who personally reviewed and verified the
correctness of the two DNA profiles that resulted in a highly significant
statistical match inculpating him as the perpetrator. In the context of testing
for the purpose of establishing DNA profiles.
10. Defendant has burden to timely to object to testimony by pathologist
who did not perform the victim’s autopsy State v. Williams 219 NJ 89 (2014)
Defendant’s failure to object to the admission of the testimony on
confrontation grounds and his decision to cross-examine the medical examiner
constitute a waiver of his right of confrontation.
11. Ken Defendant can be entitled to Adjournment to
Select Own Counsel. State v Kates 216 NJ 393 (2014)
The judgment of the Appellate Division was
affirmed substantially for the reasons expressed in Judge Ostrer’s opinion
below. Deprivation of a defendant’s right to counsel of choice is found where,
as here, a trial court denies an adjournment without properly considering the
relevant factors or abuses its discretion in doing so.
The Appellate Division held Defendant Entitled to Adjournment to Select
Own Counsel. State v. Kates 426 NJ Super. 32 (App. Div. 2012)
The Appellate Division
concluded the trial court mistakenly exercised its discretion in denying
defendant a continuance to enable him to retain counsel of his choice, after he
learned on the eve of trial that the assistant deputy public defender who had
been representing him was about to deployed for active military service. Although the right to counsel of choice is
not absolute and may be balanced against the court's interest in managing its
calendar, the trial court failed to weigh the appropriate factors governing the
discretionary decision whether to grant the requested continuance. The availability of competent counsel not of
defendant's choice was an insufficient basis for denying the continuance. As deprivation of counsel of choice is a
structural error not subject to harmless error analysis, reversal of
defendant's conviction and a new trial is mandated.
Jeff Gold cases to
discuss
12 No suppression of blood result from 2008 based on
2013 new case
State v Adkins 433 NJ Super. 479 (App. Div. 2013) cert granted
Addressing the impact of Missouri v.
McNeely 133 S. Ct. 1552, (2013), on pending cases involving warrantless
blood tests, the court reversed a trial court order suppressing blood evidence
in a DWI and assault-by-auto case. Consistent with long-standing rulings of the
New Jersey Supreme Court, the police obtained the blood sample from defendant
without a search warrant. Thereafter, the United States Supreme Court
unexpectedly changed the legal landscape by issuing a ruling that construed the
Fourth Amendment more broadly than our Court.
On these facts, under Davis
v. United States, 131 S. Ct. 2419, suppression would not be the appropriate
remedy under federal constitutional law, because the New Jersey police were
acting lawfully under established New Jersey precedent at the time of the
search. Further, had our own Supreme Court issued the McNeely ruling as a
construction of the New Jersey Constitution, the ruling would not have been
applied retroactively. Under these unusual and very limited circumstances, the
court held that suppression of the evidence in this case was not required.
13 No
warrant for DWI blood needed for tickets issued before 2013. State v Jones 437 NJ Super. 68 (App. Div.
2014)
The Court granted the State leave to appeal from an order that suppressed
the results of a blood sample taken without a warrant prior to Missouri v.
McNeely 133 S. Ct. 1552 (2013), and
now reverses. Defendant caused a multiple vehicle accident, resulting in
personal injuries that required hospitalization. Emergency personnel took
approximately thirty minutes to extricate the unconscious defendant from her
vehicle and the police investigation took several hours.
It is undisputed that the blood sample was obtained
consistent with New Jersey law that existed at the time. The Court need not
decide whether McNeely should be applied retroactively because the facts
support a warrantless blood sample even if McNeely applies. Although McNeely
rejected a per se exigency rule, it adhered to the totality of the
circumstances analysis set forth in Schmerber v. California, 86 S. Ct. 1826, 1836 (1966), stating the
metabolization of alcohol was an "essential" factor in the analysis.
Further, the Court noted that the facts in Schmerber which, like here, included
an accident, injuries requiring hospitalization, and an hours-long police
investigation, were sufficient to justify a warrantless blood sample for use in
an expert’s comparison of DNA samples, a defendant’s federal and state
confrontation rights are satisfied so long as the testifying witness is
qualified to perform, and did in fact perform, an independent review of testing
data and processes, rather than merely read from or vouch for another analyst’s
report or conclusions.
14 Suppression granted where stop based on driver high
beams on. State v. Witt 435 NJ Super. 608 (App. Div. 2014)
The court granted leave to appeal an
order granting defendant's motion to suppress evidence seized during a
warrantless search of his vehicle. The court affirmed not only because it is
bound by State v. Pena-Flores, 198 N.J. 6
(2009), and its many antecedents, and not only because no exigencies for the
search were revealed during the suppression hearing, but also because there was
no legitimate basis for the motor vehicle stop that preceded the search. In
this last regard, the record demonstrated that the police officer stopped
defendant's vehicle because defendant did not dim his high beams as he drove by
the officer's parked patrol vehicle. Because the patrol vehicle was not an
"oncoming vehicle," and because there were no other "oncoming
vehicles" on the road at the time, the police officer did not have objectively
reasonable grounds to believe defendant had violated the high-beam statute,
N.J.S.A. 39:3-60, in making the vehicle stop.
15 DWI offenses separated by more than ten years are eligible for
“step-down” provision. State v. Revie 220 NJ 126 (2014) A-31-13
The N.J.S.A. 39:4-50(a)(3)
“step-down” provision can benefit a DWI offender more than once, provided that
the defendant’s most recent and current DWI offenses are separated by more than
ten years. In this case, defendant
should be sentenced as a second DWI offender with respect to any term of
incarceration imposed, and as a third DWI offender with respect to the
applicable administrative penalties.
16 Prior DWI counts for enhanced refusal. State v. Frye 217 NJ. 566 (2014)
The court reaffirms it’s holding in In re Bergwall, 85 N.J.
382 (1981). A prior DWI conviction may
enhance the sentence for a subsequent refusal conviction under the refusal
statute. N.J.S.A. 39:4-50.4a.
17 DWI
statute and Alcotest not unconstitutional. State v. Campbell 436 N.J.
Super. 264 (App. Div. 2014)
Defendant's prosecution was based upon an Alcotest
reading of his blood alcohol content ("BAC") above the per se level
of .08 prohibited by N.J.S.A. 39:4-50(a). He argues that case law authorizing
the admission of Alcotest BAC results when the prerequisites for such
admissibility are shown by "clear-and-convincing" proof, coupled with
the statute's conclusively incriminating treatment of a BAC at or above .08,
improperly combine to relieve the State of its constitutional burden of proving
a driver's guilt by the more rigorous standard of proof "beyond a
reasonable doubt."
The Court rejects defendant's claim of
unconstitutionality. The argument fails to distinguish the State's threshold
burden of establishing the Alcotest's evidential admissibility from the State's
ultimate burden at trail of establishing defendant's guilt of a per se offense
beyond a reasonable doubt. Even if a pretrial motion to suppress the BAC
results has been denied, a defendant can still present competing evidence or
arguments at trial to persuade the court that the testing procedures were
flawed and that his guilt has not been proven by the more stringent reasonable
doubt standard.
18 Are Municipal court judges permitted to cross-examine defendants in
lieu of prosecutor?
In the Matter of Louis
DiLeo
216 NJ 449 (2014)
The
Judge should have adjourned trial for defendants to have an attorney.
The Judge should not have
acted as prosecutor and asked questions of defendants.
