AG use of force reports are public records O’Shea v West Milford 410 NJ Super. 371 (App. Div. 2010)

AG use of force reports are public records O’Shea v West Milford 410 NJ Super. 371 (App. Div. 2010)
The Attorney General's guidelines, policies and procedures requiring the completion of "Use of Force Reports" (UFRs) and their maintenance in the files of police departments have the force of law for police entities, rending such documents accessible under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Therefore, UFRs do not qualify, generically,
under the "criminal investigatory records" exception of OPRA.

Prior refusal counts for 3rd DWI State v Ciancaglini 411 NJ Super. 280 (App. Div. 2010)

Prior refusal counts for 3rd DWI State v Ciancaglini 411 NJ Super. 280 (App. Div. 2010)
In this appeal from a DWI conviction, after prior separate DWI and refusal convictions, this Appellate panel disagrees with the holding of State v. DiSomma 262 N.J. Super. 375 (App. Div. 1993), and hold that the prior refusal conviction does count toward making this a third offense. The court feels this holding is consistent with a line of cases both before and after DiSomma concluding that a prior DWI conviction counts toward enhancement of the sentence imposed for a refusal conviction. See, e.g., State v. Tekel, 281 N.J. Super. 502 (App. Div. 1995). The court also held that double jeopardy does not bar reinstatement of the sentence originally imposed in the municipal court for a third DWI offense, which was reduced in the Law Division to a sentence for a first DWI offense.

No specific words required for Miranda warnings Florida v. Powell 175 L.Ed 1009 __ S. Ct. ___ (Dec. 7, 2009)

No specific words required for Miranda warnings Florida v. Powell 175 L.Ed 1009 __ S. Ct. ___ (Dec. 7, 2009)

In a state prosecution for possession of a weapon by a convicted felon, a reversal of defendant's conviction on Miranda grounds is reversed where the police satisfied Miranda's requirements by informing defendant that he had "the right to talk to a lawyer before answering any of their questions," and that he had "the right to use any of his rights at any time he wanted during the interview.
Advice that a suspect has “the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,” and that he can invoke this right “at any time . . . during the interview,” satisfies Miranda.

Exigent circumstances may allow search of car State v Lewis 411 N.J. Super. 483 A-2066-08T4 (2-08-10)

Exigent circumstances may allow search of car State v Lewis 411 N.J. Super. 483 A-2066-08T4 (2-08-10)
Where police stopped vehicle at night in a neighborhood known for drug sales based on evidence providing probable cause to believe vehicle contained drugs, persons other than the occupants who also had reason to believe the vehicle contained drugs may have had access to the vehicle, and there was a substantial question whether other police officers would have been available to detain the occupants while an application was made for a warrant, the State established the exigent circumstances required to justify a search of the vehicle under the automobile exception to the warrant requirement. Moreover, the validity of the search was not affected by the fact that drugs were found in a closed leather case because, when the automobile exception applies, the police may search every part of the vehicle and its contents that may conceal the object of
the search.

Refusal does not merge into DWI State v Eckert 410 NJ Super. 389 (App. Div. 2009) A conviction for refusal to submit to a breath examination cann

Refusal does not merge into DWI State v Eckert 410 NJ Super. 389 (App. Div. 2009)
A conviction for refusal to submit to a breath examination cannot be merged with a DWI conviction. Such a plea agreement violated applicable merger principles as well as the Court's Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey.

New trial ordered where Judge conducted questioning of defense expert . State v. O’Brien 200 NJ 520 (2009) Defendant was entitled to face a si

New trial ordered where Judge conducted questioning of defense expert . State v. O’Brien 200 NJ 520 (2009)
Defendant was entitled to face a single adversary, the State. He should not have had to bear the consequences of a judge who appeared to disbelieve him and his expert witness, revealed that disbelief to the jury, and supported a witness adverse to him. Because that conduct was clearly capable of producing an unjust result, a new trial is in order.

Police can Enter Home Under Emergency Aid Exception Michigan v. Fisher 130 S. Ct 546 U.S. Supreme Court December 07, 2009 No. 09–91

Police can Enter Home Under Emergency Aid Exception Michigan v. Fisher 130 S. Ct 546 U.S. Supreme Court December 07, 2009
 No. 09–91

In an assault prosecution, grant of petitioner's motion to suppress evidence that he pointed a rifle at an officer when he entered his house is reversed where the officer did not violate the Fourth Amendment because he was responding to a report of a disturbance and encountered a tumultuous situation in the house, which justified a warrantless search under the emergency aid exception

Destruction of Video Tape may Permit DWI Defendant to Vacate Guilty Plea. State v. Mustaro 411 NJ Super 91 (App. Div. 2009)

Destruction of Video Tape may Permit DWI Defendant to Vacate Guilty Plea. State v. Mustaro
 411 NJ Super 91 (App. Div. 2009)
The court considered defendant's appeal from the denial of a post-sentence motion to vacate his plea of guilty to driving while intoxicated. The motion was predicated on a claim that the state withheld exculpatory evidence, but by the time the motion was filed the evidence — a videotape recorded by the camera in the arresting officer's patrol car — had been destroyed through reuse in accordance with the police department's procedures. Applying State v. Parsons, 341 N.J. Super. 448 (App. Div. 2001), and State v. Marshall, 123 N.J. 1, 107-09 (1991), the court concluded that defendant failed to establish that he would not have admitted to driving if he had access to the videotape prior to the plea, and the court further concluded that the denial of his motion was fully consistent with a proper application of the principles set forth in State v. Slater, 198 N.J. 145 (2009).

No Points on Unsafe 97.2 if More than Five Years between Offenses. Patel v. New Jersey Motor Vehicle Commission 200 NJ 413 (2009)

No Points on Unsafe 97.2 if More than Five Years between Offenses. Patel v. New Jersey Motor Vehicle Commission 200 NJ 413
(2009)
The unsafe driving ticket is no points for offense one and two. The 3rd gives the driver 4 points, unless there is more than 5 years between the 2nd and 3rd offense. The Supreme Court held Under N.J.S.A. 39:4-97.2(e), the exemption provision for assessing motor vehicle penalty points for an unsafe driving offense that occurs more than five years after “the prior offense,” “the prior offense” refers only to the most recent preceding offense based on both a plain reading of the statute and a review of the legislative history. Thus, the Motor Vehicle Commission correctly imposed motor vehicle points on Patel for having a fourth unsafe driving conviction in 2007, only one year after the date of her prior, third, unsafe driving offense.

Three year old’s statements admissible under tender years exception to hearsay. State v. Coder 198 NJ 451 (2009) In defendant’s criminal trial on

Three year old’s statements admissible under tender years exception to hearsay. State v. Coder 198 NJ 451 (2009)
In defendant’s criminal trial on charges of sexual assault on a minor, the out-of-court statements by the victim – a three-year-old child – as testified to by her mother, were properly admitted because the statements were relevant and admissible under the tender years exception to the hearsay rule. Additionally, because the child’s statements were not testimonial, they did not implicate the defendant’s Confrontation Clause rights.

State v Ugrovics 20 minute observation

In DWI case State must provide 20 minute observation of driver prior to breath test by clear and convincing evidence, but arresting officer can testify as part of 20 minutes State v Ugrovics 410 NJ Super. 482 (App. Div. 2009)
This appeal concerned the admissibility of the results of an Alcotest. By leave granted, the State appealed from the order of the Law Division suppressing the results of the Alcotest because the arresting officer, rather than the Alcotest operator, was the person who observed defendant during the twenty minutes prior to him taking the test. In reaching this conclusion, the trial court relied on what it characterized as the "procedures" mandated by the Supreme Court in State v. Chun 194 N.J. 54 (2008). The court reversed. This Appellate panel held 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 State can meet this burden by calling any competent witness who can so attest.

2010 Update on Wills, Probate and Estate Administration.mov