Thursday, October 24, 2019
Tuesday, October 22, 2019
Monday, October 21, 2019
Sayreville Wills & Power of Attorney Seminar at Sayreville Public Library
Sayreville Wills & Power of Attorney Seminar
at Sayreville Public Library
Friday, October 18, 2019
Miranda violated here where defendant not advised of charges State v White
Miranda violated here where defendant not advised of charges State v. White A-4039-18T2
Voluntary consent to blood and urine here State v Byer
Voluntary consent to blood and urine here State v. Byer A-4161-17T4
Defendant appealed from a decision that denied her motion to suppress her statements to the police, as well as urine and blood draw evidence, following a fatal car crash. While in the hospital following the crash, defendant orally acknowledged and then signed a card that confirmed that the police officer had recited her Miranda rights.
Defendant also signed a consent form for a blood and urine draw, which the officer had also read to her. Two hours later, after learning that the other driver had died, another police officer recorded an interview with defendant but did not advise her of her Miranda rights.
Defendant was then allowed to leave the hospital and was not arrested or charged until the toxicology reports were returned. The trial judge found that defendant had not been in custody while she was in the hospital and was free to leave.
The trial judge noted that even if she was in custody at the hospital, defendant knowingly and voluntarily waived her rights. The trial judge explained that the circumstances did not warrant that defendant be re-Mirandized by the second officer because there were no intervening events that would have diluted the effectiveness of the waiver.
The Appellate court affirmed and found that defendant's arguments on appeal were without sufficient merit to warrant discussion. The court's review of the record demonstrated no basis to second-guess the trial judge's detailed findings of facts and conclusions of law that defendant was not in police custody, had been properly advised of her rights and waived those rights, and voluntarily consented to the blood and urine draw.
State v Hayes Court can remove belligerent defendants A-2534-16T1
State v. Hayes Court can remove belligerent defendants A-2534-16T1
Defendant appealed from his conviction from third-degree theft and his sentence of five years' imprisonment. Defendant was arrested for the theft of a woman's handbag at an arcade in Wildwood. The victim's handbag contained her engagement and wedding rings that defendant was later observed wearing. On appeal, defendant argued that the trial court violated defendant's constitutional rights by denying the motion to relieve counsel and erred by denying defendant's right of allocution and presence at sentencing.
The court rejected defendant's arguments and affirmed his conviction and sentence. The court noted that defendant's motions to relieve his counsel were denied after the trial court found that defendant did not understand the nature and consequences of his requests to waive counsel and would repeatedly engage in disruptive behavior in court, culminating in allegedly filing a civil lawsuit against his public defender. The court affirmed the trial court's exercise of its discretion to deny defendant's attempts to relieve his counsel, noting that the trial court was empowered to control its calendar to prevent its manipulation by defendant.
The court ruled that defendant's unserved civil lawsuit against his counsel was insufficient to establish a significant likelihood of prejudice to defendant, since counsel would have an interest in not providing substandard representation that could be used as evidence in defendant's lawsuit. The court further affirmed the trial court's decision to remove defendant from the courtroom during sentencing due to defendant's continued disruptive behavior. The court held that the right to be present in the courtroom was not absolute and that defendant's behavior waived his right to be present and to allocute during his sentencing, noting that courts were empowered to remove belligerent defendants to maintain decorum and order.unpublished
Source https://www.law.com/njlawjournal/almID/1567566624NJA253416T/
Creditor’s claim against estate discussed and rejected In the Matter of ...
In the Matter of the Estate of Forgett
Creditor’s claim against estate discussed and rejected In the Matter of the Estate of Forgett A-0443-17T4
Estate creditor appealed the approval of executors' final accounting and the dismissal of her exceptions. Decedent business owner died in 2002. Creditor worked for one of the businesses and filed a workers' compensation claim against employer after falling in a parking lot owned by decedent individually. She amended her complaint to include estate and obtained a $230,000 judgment against estate in 2005. Co-executor sought advice from court concerning executor son's offer to purchase decedent's company for nominal value and assume debt owed to bank. Creditor was served with notice, did not challenge the proposed stock purchase agreement and Chancery Court approved it. In 2011, creditor sued co-executors for damages and alleged diversion of estate assets. She asserted the stock purchase agreement was a fraudulent conveyance and her judgment had priority over other creditors. She dismissed the complaint but Chancery Court ordered estate to file a verified complaint for judgment of insolvency and instructions. Creditor filed exceptions which Chancery Court dismissed. Estate's final accounting asserted creditor was not a judgment creditor since her judgment was obtained after decedent's death. Chancery judge agreed creditor was a general judgment lien creditor. Court agreed creditor had no judgment against decedent and no lien on his property prior to his death, was general claimant of the estate and not entitled to any priority.
Source https://www.law.com/njlawjournal/almI...
Ken Vercammen is a past author for NJ Law Journal.
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Weapons search not permitted here after DV TRO State v. Hemenway Justice...
State v. James Hemenway (A-19-18) (081206) July 24, 2019
ALBIN, J., writing for the Court.
The Prevention of Domestic Violence Act (Domestic Violence Act or Act), N.J.S.A. 2C: 25-17 to -35, empowers a judge to issue a temporary restraining order (TRO) to protect a victim of domestic violence and to enter an order authorizing the police to search for and seize from the defendant’s home, or any other place, weapons that may pose a threat to the victim. In this appeal, the Court considers whether the reasonable cause standard for the issuance of a domestic violence search warrant for weapons set forth in N.J.S.A. 2C: 25-28(j) and a 2002 case is incompatible with the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution.
In June 2012, D.S. filed a domestic violence complaint against defendant James Hemenway and requested a TRO barring him from having contact with her and members of her family, as well as from possessing “firearms, knives, & [a Taser].” D.S. appeared before a Family Part judge, who asked: “[Do you have a[n] awareness that he has any weapons?” When D.S. said “yes,” the court asked, “What kind of weapons do you claim he has?” D.S. replied, “Handguns, knives.” The court: “A handgun?” D.S.: “Knives, blades.” The court: “Handguns?” D.S.: “Switchblades.” D.S. stated that Hemenway kept those weapons in his three cars and his apartment. The court entered a TRO and authorized the issuance of a warrant to “search for and seize . . . handguns, knives, switchblades” from Hemenway’s home and three vehicles. The court did not articulate a reasonable cause or probable cause basis for believing that Hemenway possessed firearms or switchblades or that they would be found in the places to be searched.
On June 29, 2012, two Old Bridge police officers advised Hemenway outside his apartment that they possessed a TRO and a warrant to search his residence for weapons. The officers did not allow Hemenway to call his attorney, and Hemenway then refused their order to allow them entry to his apartment. Hemenway was arrested for obstructing the execution of the domestic violence warrant. Officers entered the apartment and observed what appeared to be marijuana and cocaine. Based on that discovery, a detective applied for and received a telephonic search warrant for the residence and the vehicles. The police searched and recovered drugs, bullets, and cash. No handguns or switchblades were found. Defendant was charged with four drug offenses.
The trial court denied Hemenway’s motion to suppress, concluding that the telephonic criminal search warrant application set forth probable cause for the issuance of a warrant to search Hemenway’s residence and that the domestic violence warrant provided an adequate and independent basis for the search of the vehicles. Hemenway appealed, challenging the validity of the domestic violence and telephonic search warrants. The Appellate Division affirmed the denial of Hemenway’s motion to suppress. 454 N.J. Super. 303, 307 (App. Div. 2018). The Court granted Hemenway’s petition for certification. 236 N.J. 42 (2018).
HELD:The beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms. Before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded suspicion.
1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, in nearly identical language, both guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and that “no Warrants shall issue, but upon probable cause.” Whether a government official is armed with a criminal warrant or a civil or administrative warrant, physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Because a warrantless search is presumptively invalid, the burden falls on the State to demonstrate that the search is justified by one of the few specifically established and well-delineated exceptions to the warrant requirement. One principal exception to the warrant requirement, as applied to the search of a home, is the exigent circumstances doctrine, which allows warrantless entry if police officers possess an objectively reasonable basis to believe that prompt action is needed to meet an imminent danger. Entry into the home must be premised on a search warrant issued on probable cause or on an exception to the warrant requirement, such as consent or exigent circumstances.
2. The State claims that, under the special needs doctrine, a judicial order for the seizure of weapons under the Domestic Violence Act does not have to comport with the probable cause requirement. But neither the United States Supreme Court nor the Supreme Court of New Jersey has ever sanctioned the issuance of a warrant for the search of a home on less than probable cause under the special needs doctrine, except in the case of probationers. The special needs doctrine is applied in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.
3. The Domestic Violence Act provides access to both civil and criminal remedies and sanctions. One such remedy is to prevent a person judged to be a domestic violence abuser from having access to a weapon, including a firearm, which poses an imminent threat to a victim who has sought the protection of our courts. See N.J.S.A. 2C:25-28(j). The court is thus empowered to “order[] the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located.” N.J.S.A. 2C:25-28(j) (emphasis added).
4. The language of the Domestic Violence Act, standing alone, lacks clear standards to guide a court in ordering a civil warrant for the seizure of weapons. Through judicial interpretation of the Act’s provisions, New Jersey courts have imposed standards to conform the Act to the Federal and State Constitutions. See State v. Johnson, 352 N.J. Super. 15, 20 (App. Div. 2002); see also State v. Dispoto, 189 N.J. 108, 120-21 (2007). In Johnson, the Appellate Division set a reasonableness standard rather than the traditional probable cause standard for its three-part test. 352 N.J. Super. at 19-20. In Dispoto, the Court disapproved of one part of the Johnson standard, holding that “before a domestic violence temporary restraining order and accompanying search warrant can be issued, the court must find probable cause to believe that an offense of domestic violence has occurred.” 189 N.J. at 120, 121 n.3 (emphasis added). The validity of the two other parts of the Johnson standard and the constitutionality of N.J.S.A. 2C:25-28(j) are now squarely before the Court.
5. A search warrant for weapons under N.J.S.A. 2C:25-28(j) is a civil warrant aimed not at recovering evidence of a crime, but rather at seizing weapons that may pose an imminent risk to a domestic violence victim. But the Fourth Amendment and Article I, Paragraph 7’s prohibition against unreasonable searches and seizures and their command that warrants issue upon probable cause apply not only to criminal investigations but also to searches related to civil or administrative investigations.
6. The important goals of the Domestic Violence Act can be achieved within our constitutional scheme of ordered liberty. The sanctity of the home can be preserved while providing thorough safeguards to domestic violence victims. The Court notes that other jurisdictions have conformed their domestic violence statutory schemes to the Fourth Amendment and that N.J.S.A. 2C:25-28(j)’s authorization of a search warrant issued on less than probable cause apparently is unique to New Jersey.
7. The special needs doctrine has applied almost uniformly to those exceptional circumstances involving warrantless searches and seizures. In this case, a domestic violence victim appeared before a court seeking a TRO and a warrant to seize weapons from an alleged abuser. This is not an exceptional circumstance that renders the warrant and probable cause requirement impracticable.
8. In Johnson and Dispoto, the courts engrafted standards onto the spare language of N.J.S.A. 2C:25-28(j) to save it from a constitutional challenge. The standards that the Court adopts today will ensure that N.J.S.A. 2C:25-28(j) conforms to the Federal and State Constitutions, while safeguarding domestic violence victims. Before issuing a search warrant for weapons as part of a TRO under the Domestic Violence Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. One long-established definition for probable cause for a criminal search warrant is a well-grounded suspicion. As with any other search warrant, hearsay may be sufficient to establish probable cause, so long as there are facts, which give the statement an appearance of trustworthiness. Courts can credit information received directly from a citizen source. Because domestic violence victims are often unrepresented, under considerable stress, in fear of their alleged abusers, and may have language barriers, courts must be patient and take the time necessary to make a complete record. The court should ask the victim questions that will elicit the victim’s basis of knowledge that the defendant possesses weapons and that the weapons will be found at a home or other location. Additionally, the court may make reasonable inferences and accredit trustworthy hearsay when establishing a victim’s basis of knowledge regarding the abuser’s ownership and location of weapons.
9. Applying those principles as well as the then-existing standards for issuing a domestic violence warrant, the Court finds that the search warrant issued here does not comport with the Fourth Amendment or Article I, Paragraph 7 of the State Constitution. The family court issued the search warrant for weapons based on a deficient record and without making the necessary findings to justify the warrant’s issuance. Therefore, the search of Hemenway’s home was unreasonable under the Federal and State Constitutions. All evidence derived from the search of his home, including the drugs and cash, must be suppressed based on the defective domestic violence warrant. The fruits of the unlawful search of the home were used to form the factual basis for the issuance of the criminal search warrants. Thus, the evidence secured from those searches must be suppressed as well. The Court reaches that conclusion not only based on the Fourth Amendment, but also, separately, based on Article I, Paragraph 7 of the State Constitution. Hemenway now has the option to withdraw his guilty plea in view of the order suppressing all evidence derived from the defective domestic violence warrant.
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for further proceedings.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.
Driver can be charged with criminal driving while suspended if they had ...
Driver can be charged with criminal driving while suspended if they had prior refusal and prior DWI State v Dougherty455 NJ Super. 336 (App. Div. 2018)
The court finds that the plain language of N.J.S.A. 2C:40-26(b), the fourth-degree offense of driving while suspended, includes both driving while under the influence (DWI), N.J.S.A. 39:4-50, and refusal to submit to breath testing (refusal), N.J.S.A. 39:4-50.4a. They are predicate offenses even where the prior conviction history consists of one conviction under the separate sections of the Motor Vehicle Code. In other words, one DWI and one refusal suffice for the criminal offense of driving while suspended.
HGN not admissible in dwi case STATE v O'NEILL
HGN not admissible in dwi trial
HGN not admissible in dwi case STATE v. O'NEILL
Defendant appealed his DWI conviction. Defendant argued the horizontal gaze nystagmus test should not have been considered and state failed to prove by competent evidence the 20-minute observation period required for the Alcotest. Testing officer admitted he did not time the 20 minutes himself. The only evidence introduced at trial as proof of the 20 minutes was officer's statement that the dispatcher told him the time was up. The time relayed by the dispatcher was a statement for the purposes of meeting the state's evidence obligation, the Confrontation Clause required that such testimonial evidence be subject to cross-examination, dispatcher did not testify and the Alcotest could not be used as evidence of defendant's DWI. Court noted that it had long been held that the HGN test could be used to establish probable cause for a DWI arrest, but lacked sufficient scientific reliability to warrant admission as evidence of guilt. Admission of defendant's HGN test was not harmless error. Trial judge did not abuse her discretion in precluding testimony of defendant's witness about the impact of hardware in defendant's ankle on his field sobriety test performance.
Source https://www.law.com/njlawjournal/almID/1566871479NJA446217T/
What is Nystagmus?
Nystagmus is a term that describes a "bouncing" eye motion that is seen in two ways -- pendular nystagmus, where the eye wavers equally in two directions (like a pendulum), and jerk nystagmus, where the eye moves slowly away from a fixation point and then is rapidly corrected through a fast movement. Horizontal gaze nystagmus is a type of jerk nystagmus and is an involuntary motion, meaning that the person showing it cannot control it, and in fact, is unaware that it is happening. When impaired, a person's nervous system displays a breakdown in the smooth and accurate control of eye movements, resulting in a number of observable changes.
It is these observable changes that prompted NHTSA to research and standardize HGN for field sobriety tests in the 1970s. The Standardized Field Sobriety Tests (SFSTs) are used across the country whenever a law enforcement officer has reason to believe a motorist is driving impaired.
HGN in the Courtroom
Despite the proven correlation between alcohol consumption and HGN, many trial courts across the country still do not admit the results of the HGN test into evidence. Prosecutors and law enforcement have lacked either the knowledge or the https://one.nhtsa.gov/About-NHTSA/Traffic-Techs/current/ci.A-Resource-Guide-Describes-The-Science-And-The-Law-About-Horizontal-Gaze-Nystagmus.printresources, or both, to lay an adequate foundation for the admissibility of HGN.
STATE v.
MICHAEL J. O'NEILL,
MICHAEL J. O'NEILL,
Defendant-Appellant. ____________________________
Argued August 13, 2019 – Decided August 26, 2019
Before Judges Sumners and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. 27-17.
PER CURIAM
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-4462-17T3
DOCKET NO. A-4462-17T3
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Defendant Michael J. O'Neill appeals from his de novo conviction in the Law Division of driving while intoxicated (DWI), N.J.S.A. 39:4-50,1 and raises the following arguments:
POINT I
DEFENDANT SHOULD BE ACQUITTED OF THE OBSERVATIONAL PRONG OF THE DWI STATUTE BECAUSE THE LAW DIVISION INAPPROPRIATELY CONSIDERED HGN TO PROVE INTOXICATION AT THE DE NOVO TRIAL AND FAILED TO ALLOW DR. GOOBERMAN TO TESTIFY AS TO THE PIN IN DEFENDANT'S ANKLE WHILE INAPPROPRIATELY DISCOUNTING OTHER DEFENSE EXPERT TESTIMONY .
POINT II
[THE] LAW DIVISION ERRED IN FAILING TO EXCLUDE THE ALCOTEST RESULTS BECAUSE THE STATE FAILED TO SATISFY THE TWENTY- MINUTE OBSERVATION REQUIREMENT DUE TO THE STATE'S RELIANCE ON INADMISSIBLE HEARSAY AND INSUFFICIENT TESTIMONY AS TO THE CORRECT TIME PERIOD. THUS, THE ALCOTEST READINGS SHOULD BE EXCLUDED AND INSUFFICIENT EVIDENCE OF THE PER SE VIOLATION EXISTS IN THE RECORD.
1 In his merits brief, defendant does not challenge his concomitant convictions for failure to maintain lane, N.J.S.A. 39:4-88 and failure to stop, N.J.S.A. 39:4- 81. As such, we deem any possible challenge to those convictions waived. Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014).
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POINT III
THE LAW DIVISION'S APPARENT AGREEMENT WITH THE MUNICIPAL JUDGE IN THAT THE RULES OF EVIDENCE ARE RELAXED IN A DWI TRIAL WAS ERRONEOUS. THUS, THIS COURT SHOULD REVERSE THE CONVICTION ON THE PER SE AND OBSERVATIONS PRONGS FOR THIS REASON ALONE.
We agree the HGN test should not have been considered in determining if the State proved the DWI charge and that the State failed to prove by competent evidence the twenty-minute observation requirement was fulfilled. As such we reverse and remand.
In our limited scope of review following the trial de novo in the Law Division, we determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Our review of legal determinations, however, is plenary. See State v. Handy, 206 N.J. 39, 45 (2011).
We first determine defendant's contention the Law Division erred by agreeing with the municipal court judge's assertion that the Rules of Evidence are relaxed in municipal court is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). The evidentiary rulings by the municipal court
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judge do not control this case. In an appeal from a de novo hearing on the record, we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). In making her determination, the Law Division judge did not rule the Rules of Evidence were relaxed, as did the municipal court judge in the context of her determination of defendant's objection relating to a leading question.
Turning to the proofs related to the Alcotest results, our Supreme Court in State v. Chun, 194 N.J. 54, 140 (2008), noted the Alcotest is not subject to operator influences and observed one of the few tasks required of an Alcotest operator is to
wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.
[id. at 79.]
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The State, in compliance with the Court's prescription that "[notwithstanding this reduced role to be played by the operator as relates to the ultimate BAC [breath alcohol concentration] results reported . . . he or she [is required to] be made available for cross-examination [as] an important constitutional safeguard," id. at 140, produced the officer it contends made the twenty-minute observation in order to meet its burden to substantiate that "during the twenty-minute period immediately preceding the administration of the test, the test subject did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the test results," State v. Ugrovics, 410 N.J. Super. 482, 489-90 (App. Div. 2009).
The officer testified simply on direct examination: "I observed him for [twenty] minutes to make sure he was not burping, vomiting, not putting anything in his mouth. I made sure there was nothing in his mouth prior to the start of [twenty] minutes." On cross-examination, however, defense counsel elicited the basis for the officer's timing of the twenty-minute period:
Q. All right. And you said you did the [twenty]-minute observation period, correct?
A. Correct.
Q. But you didn't time it yourself, did you?
Q. But you didn't time it yourself, did you?
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A. No. We have our Gloucester County Communications Dispatch, we have them start the timer through the radio, and then – through our communications – and once their timer's up for the [twenty] minutes as per the CAD[2] generator on our report systems, it shows that the [twenty] minutes starts and then [twenty] minutes later it documents when the timing ends.
Q. Do they radio you back and say the [twenty] minutes is done?
A. Yes.
Q. Okay. So you never observed the [twenty]-minute period. Someone else at dispatch did?
A. Yes.
Q. Okay. So that you don't know how much time that allows, correct?
A. I imagine it would be [twenty] minutes because it was common practice and it's documented in their report in the CAD ing system.
Q. But you don't know for sure because you weren't the one that actually observed the [twenty] minutes. It was someone at dispatch who then radioed back and said it's done.
A. We observed the [twenty] minutes. We have them do it to document the time so there's not a discrepancy of whether my phone was off by a couple minutes, et cetera.
2 CAD is an abbreviation of computer aided dispatch. See State v. Chisum, 236 N.J. 530, 538 (2019).
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Q. Okay. So someone else observed the [twenty] minutes.
A. That is correct.
On redirect examination, the officer confirmed:
On redirect examination, the officer confirmed:
Yeah, so we, when we first get to the station we determine that there's nothing in his mouth and he's not burping. We have Gloucester County Communications start the [twenty]-minute timer on their end. And once the [twenty] minutes is up, they contact us allowing us to know the [twenty] minutes observation is over, or the [twenty]-minute period is over. And then that is when [the Alcotest operator] took him, after the [twenty]- minute period was over.
We glean from the record that evidence related to the software-safeguard that prohibits operation of the Alcotest "device before the passage of twenty minutes from the time entered as the time of the arrest," Chun, 194 N.J. at 79, was not introduced at trial. Thus, the only proof that twenty minutes had elapsed was the statement from the dispatcher that it had.
We need not address whether the time from the CAD device was a hearsay statement or if the dispatcher's relay of that time was admissible, as the State contends, as a present sense impression under Rule 803(c)(1), N.J.R.E. 803(a)(1), because the dispatcher's statement – not the actual CAD-time itself – was testimonial requiring the production of the dispatcher for cross-examination even if the CAD-time was an admissible statement. See State v. Sweet, 195 N.J.
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357, 372 (2008) (holding "[t]he threshold inquiry Crawford requires is whether the challenged hearsay statement is testimonial"); see also Crawford v. Washington, 541 U.S. 36, 51-52, 59-61 (2004); Chun, 194 N.J. at 138-39.
Our Supreme Court interpreted Crawford as "barring the 'admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross- examination.'" State v. Buda, 195 N.J. 278, 304 (2008) (quoting Crawford, 541 U.S. at 53-54). The Court recognized that "the Crawford Court eschewed providing a comprehensive definition of the term 'testimonial,'" id. at 300, but stated "[t]he text of the Confrontation Clause . . . applies to 'witnesses' against the accused – in other words, those who 'bear testimony,'" ibid. (alterations in original) (quoting Crawford, 541 U.S. at 51); see also Sweet, 195 N.J. at 372.
Although the CAD time was arguably generated by the CAD device without human input or potential interference, and without targeted evidentiary use in a particular criminal case, thus rendering it nontestimonial, the time relayed by the dispatcher was a statement made for the purpose of meeting the State's obligation to prove by clear and convincing evidence that defendant was observed for twenty minutes prior to the administration of the Alcotest. Moreover, the relay by the dispatcher transformed what may have been a reliable
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machine-reading, see Chun, 194 N.J. at 147 (holding an Alcotest-generated Alcohol Influence Report (AIR) of data from breath samples, which cannot be influenced by the operator, was nontestimonial3), into evidence that is subject to manipulation, mistake or misconception. The Confrontation Clause requires that that testimonial evidence be subject to cross-examination because the dispatcher was a witness who bore testimony against defendant. Buda, 195 N.J. at 300. Our determination is not altered because the observing officer's direct testimony did not reveal the source of timing for the twenty-minute period. The Confrontation Clause cannot be skirted because the testimonial source of the officer's information was revealed through cross-examination after the State chose not to elicit that evidence.
We observe the Law Division judge based his conclusion that the State proved the twenty-minute observation requirement on the observing officer's testimony, found credible by the municipal court judge, that "he thought he waited [twenty] minutes." The Law Division judge found that testimony "to be
3
Although the AIR was ruled nontestimonial, the Court still required the Alcotest operator be made available for cross-examination and "the routine production in discovery of all of the foundational documents that might reveal some possible flaw in the operation of the particular device and . . . the core foundational documents that establish the good working order of the device be admitted into evidence." Chun, 194 N.J. at 148.
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sufficient basis, coupled with that [twenty] minutes and the other three to five minutes from the other [Alcotest operator] officer" to prove the twenty-minute observation period. The judge also found "it took three to five minutes" after the Alcotest operator took custody of defendant from the observing officer to perform the preliminary setup of the Alcotest and that the operator "observed the defendant during that period of time and that the defendant was not burping, vomiting nor putting anything in his mouth during that period of time." The evidence does not support that finding; the operator testified only that he did not observe defendant put anything in his mouth. On cross-examination, the operator admitted:
Q. You didn't check [defendant's] oral cavity for any kind of foreign substances?
A. I did not.
Q. You just tested him. A. Correct.
Q. You just tested him. A. Correct.
We also find no evidential basis for the Law Division judge's finding that "according to the [observing] officer he thought that he had waited [twenty] minutes." The evidence reveals that the officer admitted he did not time the period himself and did not offer his opinion or feeling that twenty minutes had elapsed. The officer relied solely on the time reported by the dispatcher.
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A-4462-17T3
We will only disturb a trial judge's factual findings if they are unsupported by sufficient credible evidence in the record. Locurto, 157 N.J. at 471. The only evidence that the twenty-minute observation requirement was met was based on the dispatcher's timing and report thereof – and the dispatcher did not testify. Inasmuch as the State failed to prove that defendant did not meet its burden regarding the twenty-minute observation period, the Alcotest result cannot be used as evidence of defendant's DWI.
Turning to the observational proof of defendant's DWI, we apprehend that an officer's subjective observation of a defendant is a sufficient ground to sustain a DWI conviction. See State v. Cryan, 363 N.J. Super. 442, 456-57 (App. Div. 2003) (sustaining DWI conviction based on observations of defendant's bloodshot eyes, hostility, and strong odor of alcohol); see also State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining DWI conviction based on officer's observation of the defendant's driving without headlights, inability to perform field sobriety tests, combativeness, swaying, and detection of odor of alcohol on the defendant's breath); Oliveri, 336 N.J. Super. at 251-52 (sustaining DWI conviction based on officer's observations of watery eyes, slurred and slow speech, staggering, inability to perform field sobriety tests, and defendant's admission to drinking alcohol earlier in the day).
11
A-4462-17T3
The Law Division judge correctly observed that the horizontal gaze nystagmus (HGN) test "has not been found to be scientifically reliable as a sole basis" to find defendant guilty of DWI but concluded "there are other factors that the court had at its disposal in order to consider not only the driving but the failure of the field sobriety test, the odor [of alcohol], and so there are other issues to be considered in addition to the HGN [test]. So they look at the totality of the circumstances as a basis." (emphasis added). Later, the court opined:
The HGN [test] is admissible as long as that is not the sole basis of finding that the person was under the influence. There's certainly under the totality of the circumstances enough evidence in the record to find the defendant guilty even considering the HGN [test]. So it would be admissible as other evidence within the record to conclude by a totality of the circumstances.
It has long been held that, while the HGN test can be used to establish probable cause for a DWI arrest, it lacks sufficient scientific reliability to warrant admission as evidence of a defendant's guilt of a DWI offense. State v. Doriguzzi, 334 N.J. Super. 530, 546-47 (App. Div. 2000). Obviously the Law Division judge considered the HGN test as part of the "totality of the circumstances" in finding defendant guilty. We cannot, especially in light of our exclusion of the Alcotest results, deem the admission of the HGN test as harmless error. Ibid. We are therefore constrained to reverse and remand this
12
A-4462-17T3
matter to the Law Division for a trial de novo on the record without consideration of the HGN test.
We determine the other issues raised by defendant, including the preclusion of his expert witness from testifying about the impact the pin in defendant's ankle4 had on his field sobriety test performance, and the trial court's rejection of the expert's testimony regarding gastroesophageal reflux disease (GERD),5 to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add only that at the conclusion of the defense's voir dire, the witness was proffered only "as an expert in the effects of drugs an[d] alcohol on the [human] body," not as a medical expert; defendant never submitted the expert's curriculum vitae to the State. He attempted to expand the witness's area of expertise to the medical field after the State completed its voir dire and objected to the expert. The only testimony the witness gave to support his qualification as a medical expert was on direct examination, during the 2017
4 We note the officer testified that he believed defendant said he had a screw in his right ankle.
5 Defendant did not advance any argument regarding the Law Division judge's conclusion that there is "no evidence in the record that defendant was suffering from GERD at the time of the Alcotest" in his merits brief. See Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008) (stating that any issues not briefed on appeal are waived).
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A-4462-17T3
trial in municipal court, when he stated he was a practicing physician with a specialty in addiction medicine and that he completed a residency in internal medicine and "did primary care for a number of years before [he] specialized in addiction medicine," which became his sole practice area in 1995.
Reviewing the judge's ruling for clear abuse of discretion, State v. Chatman, 156 N.J. Super. 35, 40 (App. Div. 1978), under the proofs presented, we do not perceive that the judge abused her discretion in precluding the witness's testimony about the impact the hardware in defendant's ankle had on his field sobriety test performance. "A trial judge is vested with wide discretion in determining the competency of expert witnesses." Ibid. Moreover, even if error, the preclusion did not result in a manifest injustice in light of defendant's self-assessment of his post-surgery abilities. See State v. J.D., 211 N.J. 344, 354 (2012). The observing officer, who was also the arresting officer, testified that defendant responded to the officer's question about any medical conditions that would affect his ability to perform a balance test by advising "that he did have a screw in his right ankle I believe it was, and he did advise me that it would not affect his balance and that he was okay to continue with the test."
14
A-4462-17T3
Reversed and remanded to the Law Division to determine if the observational evidence alone, other than the HGN test, was sufficient to prove the DWI offense beyond a reasonable doubt. We do not retain jurisdiction.
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A-4462-17T3
Police false promise of no jail and leniency required State v L H (A-5...
Police false promise of no jail and leniency required suppression of Confession State v. L.H. (A-59-17) July 22, 2019
ALBIN, J., writing for the Court.
HELD: The State failed to prove beyond a reasonable doubt that, under the totality of the circumstances, defendant’s statement was voluntary. Defendant may withdraw his guilty plea. The failure to record the identification procedure as required by Delgado requires a remand to allow defendant the benefit of a hearing to inquire into the reliability of the identification and any other remedy deemed appropriate by the trial court.
The primary issue in this appeal is whether the interrogation techniques that included false promises of leniency induced defendant L.H. to confess to two alleged sexual assaults and one alleged attempted sexual assault and overbore defendant’s will. In this context, the Court must determine whether the State proved beyond a reasonable doubt that, under the totality of the circumstances, defendant’s confession was voluntary.
Defendant, who was suspected of committing the alleged offenses, was stopped and brought to the Bloomfield police headquarters on August 6, 2011, at about 2:30 a.m. After being held for three hours, he was brought to an interview room. For the first fifty- five minutes, Detective Lieutenant Joseph Krentz and Detective Thomas Fano secured information from defendant about his education, employment, prior residences, family, and his reason for driving in Bloomfield that evening. Almost an hour into the interrogation, Detective Fano told defendant that he had a “problem.” For the next twenty minutes, while defendant deflected questions that would have implicated him in a crime, the two detectives suggested that, if defendant cooperated and incriminated himself, he would receive counseling and help, not go to jail, and remain free to raise his child. Indeed, defendant was told that the truth would set him free. The detectives’ assurances and suggestions that defendant would receive help and counseling, stay out of jail, and be there for his daughter if he cooperated were aimed at assuaging the reluctance defendant repeatedly expressed about giving up the right to remain silent.
For example, Detective Krentz stated, “I just need to hear your side of the story so I can find out exactly where you are as far as getting the help you need, the right help.” Defendant asked, “The help I need is not sending me to jail is it?” Detective Krentz: “Not at all. Nobody gets rehabilitated in jail.” Detective Fano: “Yeah, I agree.” The detectives, moreover, continually minimized the nature of the assaults of which defendant was suspected, telling him, “You’re not a bad guy,” and “You didn’t hurt anybody.”
One hour and fourteen minutes into the interrogation, defendant began to make admissions about his involvement in the charged offenses. The interrogation ended at 8:51 a.m. -- more than three hours after it had begun. In his testimony at the hearing, Detective Krentz conceded that “[e]very time [defendant] expressed hesitancy, [the detectives] talked about the help he was going to get,” and that “it was clear . . . that ‘help’ meant counseling.” The trial court rejected defendant’s argument that his will was overborne by false promises and declined to suppress his confession.
Defendant also moved for an evidentiary hearing because of the failure of the police to record, electronically or otherwise, the identification procedure that led to M.H. identifying defendant as her assailant. During the fourteen earlier identification procedures, M.H. was unable to make a positive identification of her assailant. On August 8, 2011, two days after defendant’s arrest, M.H. viewed a fifteenth photographic array. In the report from that identification, the position of each photograph is given a sequential number from one to six. Next to photo position number three -- designating defendant’s photograph -- is the word “SUSPECT.” The report does not explain why the word “SUSPECT” was used rather than the six-digit number and letter assigned to every other photograph.
The trial court denied defendant’s motion for a hearing, and defendant entered guilty pleas to five counts in the indictment, preserving his right to appeal the denial of both his motion to suppress his confession and his motion for an evidentiary hearing. In an unpublished opinion, the Appellate Division reversed the trial court, vacating defendant’s convictions and remanding for further proceedings. The Court granted the State’s petition for certification. 233 N.J. 24 (2018).
1. Due process requires that the State prove beyond a reasonable doubt that a defendant’s confession was voluntary and was not made because the defendant’s will was overborne. A confession which is the product of physical or psychological coercion must be considered to be involuntary and is inadmissible in evidence regardless of its truth or falsity. The voluntariness determination weighs the coercive psychological pressures brought to bear on an individual to speak against his power to resist confessing. Relevant factors include the suspect’s age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved, as well as previous encounters with law enforcement. The ultimate determination of voluntariness depends on the totality of the circumstances.
2. Because a suspect will have a natural reluctance to furnish details implicating himself, an interrogating officer may attempt to dissipate this reluctance and may even tell some lies during an interrogation. Certain lies, however, may have the capacity to overbear a suspect’s will and to render a confession involuntary. Thus, a police officer cannot directly or by implication tell a suspect that his statements will not be used against him because to do so is in clear contravention of the Miranda warnings. Other impermissible lies are false promises of leniency that, under the totality of circumstances, have the capacity to overbear a suspect’s will. A court may conclude that a defendant’s confession was involuntary if interrogating officers extended a promise so enticing as to induce that confession.
3. The video-recorded interrogation here reveals that the detectives made (1) representations that directly conflicted with the Miranda warnings, (2) promises of leniency by offering counseling as a substitute for jail, and (3) statements that minimized the seriousness of the crimes under investigation -- all relevant factors under the totality- of-the-circumstances test. In the totality of the circumstances, given the combination of all the relevant evidence and factors, the State failed to show beyond a reasonable doubt that the interrogators’ representations to defendant did not overbear his will and induce him to confess. The detectives secured an involuntary confession. Because defendant preserved his right to appeal the denial of his motion to suppress the confession, defendant’s guilty plea must be vacated.
Defendant knowingly waived Miranda after Spanish translation State v. A....
. Defendant knowingly waived Miranda after Spanish translation State v. A.M. 237 NJ 384 (2019)
HELD: Although the better practice would have been to read aloud the form’s waiver portion to defendant, the Court relies on the trial court’s well-supported observations and factual findings and reverses the Appellate Division’s judgment.
1. Generally, on appellate review, a trial court’s factual findings in support of granting or denying a motion to suppress must be upheld when those findings are supported by sufficient credible evidence in the record. In State v. S.S., 229 N.J. 360, 381 (2017), the Court extended that deferential standard of appellate review to “factual findings based on a video recording or documentary evidence” to ensure that New Jersey’s trial courts remain “the finder of the facts.”
2. To ensure that a person subject to custodial interrogation is adequately and effectively apprised of his rights, the United States Supreme Court developed the Miranda warnings. The administration of Miranda warnings ensures that a defendant’s right against self- incrimination is protected in the inherently coercive atmosphere of custodial interrogation. A waiver of a defendant’s Miranda rights must be knowing, intelligent, and voluntary in light of all of the circumstances surrounding the custodial interrogation. In the totality-of-the-circumstances inquiry, courts generally rely on factors such as the suspect’s age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.
3. The Court reviews the trial court’s factual findings in detail and concludes that the failure of Detective Ramos to read the entire Miranda rights form aloud did not “improperly shift[] the burden of proof to defendant to alert the interrogating officers about any difficulty he may be having understanding the ramifications of a legal waiver.” 452 N.J. Super. at 599. To eliminate questions about a suspect’s understanding, the entire Miranda form should be read aloud to a suspect being interrogated, or the suspect should be asked to read the entire form aloud. Where that is not done, the suspect should be asked about his or her literacy and educational background. Nevertheless, in this case, because sufficient credible evidence in the record supports the trial court’s findings, the Court agrees with the trial court that the State proved beyond a reasonable doubt that defendant made a knowing, intelligent, and voluntary express waiver of his Miranda rights. See S.S., 229 N.J. at 365. The Court therefore does not reach the issue of implicit waiver.
4. The Court notes that this case demonstrates plainly the importance of videotaping custodial interrogations of suspects by police.
5. Any defendant has the right to challenge a translation under N.J.R.E. 104(c), which governs pretrial hearings on the admissibility of a defendant’s statement. Because a defendant has the right to contest a translation of a custodial interrogation, as was done here, and Rule 104(c) provides the mechanism to do so, the Court rejects the holdings of the Appellate Division’s concurring opinion. That said, the State, as well as the defendant, is best served by the use of a capable translator during an interview. (A-76-17)
Police can enter home after 911 call and arrest for dwi here State v Kea...
State v. Kearstan, N.J. Super. App. Div. Defendant appealed his DWI conviction. Defendant arrived at the marital home with damage to his car and a missing mirror. His wife called 911, reported he was in the basement, had an alcohol issue and was intoxicated. Officer went to the house to conduct a welfare check, wife invited officer into the house and officer saw defendant staggering, having difficulty pulling up his pants and smelling of alcohol. Officer noted defendant needed assistance to simply stand up. Officer and defendant went outside to talk away from the children and officer noticed defendant's bloodshot eyes and slurred speech. Defendant admitted to having several drinks. Officer administered field sobriety tests, arrested defendant and a blood draw showed a BAC of 0.29 percent.
Defendant moved to suppress the blood alcohol test and his incriminating statements. Trial court denied the suppression motion, finding wife invited officer into the home, the warrantless entry was justified under the community-caretaker and emergency-aid doctrines and the questioning was similar to a preliminary roadside drunk driving investigation.
Defendant argued removing him from his home was improper and his inculpatory statements were obtained in violation of the Fourth Amendment. The Appellate Court agreed with trial court that officer lawfully entered the house at wife's invitation and defendant's incriminating responses were the result of a proper investigatory interrogation.
Source https://www.law.com/njlawjournal/almID/1569032182NJA586717T/
Police can enter home after 911 call and arrest for dwi here State v Kea...
State v. Kearstan, N.J. Super. App. Div. Defendant appealed his DWI conviction. Defendant arrived at the marital home with damage to his car and a missing mirror. His wife called 911, reported he was in the basement, had an alcohol issue and was intoxicated. Officer went to the house to conduct a welfare check, wife invited officer into the house and officer saw defendant staggering, having difficulty pulling up his pants and smelling of alcohol. Officer noted defendant needed assistance to simply stand up. Officer and defendant went outside to talk away from the children and officer noticed defendant's bloodshot eyes and slurred speech. Defendant admitted to having several drinks. Officer administered field sobriety tests, arrested defendant and a blood draw showed a BAC of 0.29 percent.
Defendant moved to suppress the blood alcohol test and his incriminating statements. Trial court denied the suppression motion, finding wife invited officer into the home, the warrantless entry was justified under the community-caretaker and emergency-aid doctrines and the questioning was similar to a preliminary roadside drunk driving investigation.
Defendant argued removing him from his home was improper and his inculpatory statements were obtained in violation of the Fourth Amendment. The Appellate Court agreed with trial court that officer lawfully entered the house at wife's invitation and defendant's incriminating responses were the result of a proper investigatory interrogation.
Source https://www.law.com/njlawjournal/almID/1569032182NJA586717T/
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