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