Fall 2009 mun law rev

Fall 2009 mun law rev 1. US Supreme Court Rules Lab Report Not Admissible in Criminal Case.

Melendez­Diaz v. Mass 129 S.Ct. 2527 (2009)

Defendant's drug conviction is reversed, where the trial court's admission of the prosecution's certificates by laboratory analysts, stating that material seized by police and connected to Defendant was cocaine of a certain quantity, violated petitioner's Sixth Amendment right to confront the witnesses against him.

2. In DWI Alcotest, State Must Prove Defendant was Observed for 20 Minutes Prior to Test. State v. Filson ___ NJ Super. ___ (Law Div. 2009) In a DWI municipal appeal, the court held that before Alcotest results may be admitted into evidence, the state must prove, by clear and convincing evidence, that the defendant was observed for 20 minutes before taking the test. Eye­to­eye monitoring is not necessarily required, if the defendant is observed by sound and smell. Yet, if the observer leaves the room during the 20 minutes, observation must begin anew. What suffices as observation must be determined in view of the observation requirement’s purpose to assure that the suspect has not ingested or regurgitated substances that would confound the test results. Source: New Jersey Law Journal July 27, 2009 3. Miranda Violation cannot be Asserted by Co­defendant. State v. Baum 199 NJ 407 (2009) Defendant Jermel Moore’s motion to suppress evidence found during a warrantless search of the vehicle in which he was riding should have been denied because he did not have standing to argue that the driver’s right against self­ incrimination was violated and because the search was not unreasonable.

4. Warrantless Search to Check on Unattended Child Permitted Under Community Caretaking. State v. Bogan ___ NJ ___ (2009) A­7­08 The police officer’s warrantless entry into an apartment for the purpose of taking the telephone from an unattended child to speak with his parent was justified by the community caretaking doctrine because the officer had a duty to identify a responsible adult for the child and to ensure his safety. Because the officer was lawfully on the premises when he observed in plain view defendant, who fit the suspect’s description, he had a right to direct his fellow officers to question defendant. Defendant’s

Mirandized statements in response to questioning were properly admitted at trial.

5. Refusal Stands Even if Driver Does Not Understand English. State v.

Marquez ___ NJ Super. ___(App. Div. 2009) A­5044­07T4 The police have no constitutional obligation to translate into Spanish the standard statement under the breath­test refusal statute, N.J.S.A. 39:4­50.2(e), to a licensed New Jersey driver arrested for drunk driving who does not understand English. The court reaffirms the Law Division's holding in State v. Nunez, 139 N.J. Super. 28, 32­33 (Law Div. 1976), that no such translation is required. However, we recommend that, as an administrative matter, the Motor Vehicle Commission prospectively consider having the standard statement translated into Spanish and perhaps other prevalent foreign languages.

6. Illegal Immigrant Status Considered in Bail. State v. Fajardo­Santos 199 NJ 520 (2009) Federal authorities exercised their discretion in lodging a detainer against defendant. That increased the risk that he would not appear at trial. The trial judge then properly responded to a change in circumstances by increasing defendant’s bail.

7. Law Division Judges Say that Entire Judge King Alcotest Report was not Adopted by Supreme Court. State v. Coppola ___NJ Super.___ Law Div. — Camden Cty. 14­3­4513 On Sept. 6, 2006, Giovanni Coppola appeared before Hon. Robert Zane, J.M.C., in Merchantville, and entered a guilty plea to violating N.J.S.A. 39:4­50. The guilty plea was entered with the caveat of a Chun stay. Following the Supreme Court's holding in Chun, the defendant sought to withdraw his guilty plea on the grounds that Chun adopted Special Master King's report, which stated that higher scrutiny must be given to cases where the Alcotest results are at the threshold levels (.04, .08, or .10).

The court found that the special master's report was only adopted as modified within the Chun opinion and that the Chun opinion found that the Alcotest was reliable. The Trial Judge held that the Chun holding did not adopt King's report in toto and, as such, a per se violation remains a per se violation. The purpose of the per se violation is to prevent pretextual defenses where the defendant has been found to be at or above the threshold blood­alcohol limit. The court held that the Chun decision did not open the door for pretextual defenses and no additional scrutiny must be given to threshold level cases. [Decided April 30, 2009.] Source: Daily Briefing July 13, 2009 8. Police May Interrogate Even if Public Defender Assigned. Montejo v.

Louisiana 129 S. Ct. 2079 (2009)

Michigan v. Jackson, which forbids police from initiating interrogation of a criminal defendant once he has invoked his right to counsel at an arraignment or similar proceeding, is overturned. Source: New Jersey Law Journal June 1, 2009 9.

9. If Emergency Call, Police Can Enter and Seize Item in Plain View. State v.

O’Donnell 408 NJ Super. 177 (App. Div. 2009) Evidence observed in plain view during a police entry into a residence to provide emergency aid may be seized without a warrant even though there is a short delay between the emergency aid entry and the seizure of evidence by other police officers responsible for processing the crime scene.

10. School Officials Cannot Search Child’s Underwear for Drugs. Safford Unified Sch. Dist. No. 1. v. Redding 129 S.Ct. 2633

(2009) In a 42 U.S.C. section 1983 action alleging an unlawful search of a student, the denial of summary judgment based on qualified immunity is affirmed where the search of Plaintiff's underwear violated the Fourth Amendment because the facts did not give school officials reasonable suspicion to search her underwear.

11. Judge Can Suspend DL for Traffic Offense. State v. Moran ___NJ Super. ___ (App Div. 2009) A­3810­07T4

The Court rejects the constitutional and repeal by implication (though the subsequent creation of the motor vehicle point system) challenges to N.J.S.A. 39:5­31, which authorizes, without standards or limits, driver's license suspensions for willful motor vehicle violations.

12. Condo Parking Garage is Quasi­public for Refusal Violation. State v.

Bertrand ___ NJ Super. ___ (App. Div. 2009) A­2378­07T4

Defendant's conviction for refusing to provide breath samples, N.J.S.A. 39:4­50.2, is affirmed. The parking garage of a high­rise condominium that held 354 cars, and the use of which was restricted to residents of that building, constituted a “quasi­public area" for purposes of the statute.

13. Mirror Obstruction Should Obstruct Driver’s View for Violation. State v.

Barrow ___ NJ Super. ___ (App. Div. 2009) A­4334­07T4

A police officer stopping a motor vehicle for violating N.J.S.A. 39:3­74 must provide articulable facts showing that he or she reasonably believed that an object hanging from a rearview mirror obstructed the driver's view.

14. After Bail and Released, Police Could Question Defendant. State v. Wessells 408 NJ Super. 188 (App. Div. 2009) In this appeal the court holds that, pursuant to both the federal and New Jersey Constitutions, a person who has asserted the right to counsel during a police custodial interrogation and is subsequently released may be interrogated again if the break in custody afforded a reasonable opportunity to consult an attorney.

15. New Trial Where Attorney Did Not Advise Defendant of Mandatory Deportation. State v. Nunez­Valdez ___ NJ ___ (2009) A­46­08

There was sufficient credible evidence for the trial court to conclude that defendant was misinformed by counsel and that he would not have pled guilty if he had received accurate information that his plea would result in deportation.

16. Police Can Arrest Juvenile if Curfew Violation and No ID. State in the Interest of R.M. ___ NJ Super. ___ (App. Div. 2009) A­0105­07T4

A juvenile who is found on the streets in violation of a municipal curfew ordinance and is unable to produce any identification may be arrested and detained until identification can be produced and the juvenile released to the custody of his or her parents. A juvenile who is arrested for a curfew violation may be searched incident to that arrest before being transported to police headquarters.

17. After Juvenile Complaint Filed, No Miranda Waiver in Absence of Counsel.

State in the Interest of P.M.P. ___ NJ ___ (2009) A­5156­07T4

The filing of the complaint and the obtaining of a judicially approved arrest warrant by the Camden County Prosecutor’s Office was a critical stage in the proceedings, and pursuant to N.J.S.A. 2A:4A­39B(1), P.M.P. had the right to counsel and could not waive that right except in the presence of and after consultation with his attorney counsel. Therefore, the trial court properly granted P.M.P.’s motion to suppress his statement.

18. MVC/DMV Can Suspend NJ DL for Florida DWI Two Years Ago. Carrasco v.

N.J. Motor Vehicle Commission ___ NJ Super. ___ (App. Div. 2009) Unreported.

05­2­4275 The Motor Vehicle Commission's two­year delay in suspending the appellant's New Jersey driving privileges following his conviction and license suspension in Florida for driving under the influence of alcohol did not constitute double punishment, since an offender has no legal right to concurrent suspension periods. Nor did the delay constitute a factual dispute that would have entitled the appellant to an MVC hearing, since the reason for delay in the issuance and transmittal of notice by Florida officials was not material to the mandatory action taken by the MVC upon receipt of that notice.

Source: Daily Briefing June 24, 2009

19. For Domestic Violence, Calls Must be Annoying or Threatening. Quesada v.

Gonzales App. Div. 2009, 20­2­4202, decided June 17, 2009, Unpublished.

Deferring to the trial court’s assessment of credibility and its finding that plaintiff failed to show the elements of harassment where it was not alleged that the offending telephone call was made at inconvenient hours or in offensively coarse language or in a manner likely to cause annoyance or alarm, and that even if defendant had threatened to beat her, that in itself does not constitute an act of domestic violence, and that the court was justified in considering the context and backdrop of the parties’ relationship, including any ulterior motive of the victim whose safety is allegedly threatened, the panel affirms the trial court’s dismissal of plaintiff’s temporary restraining order and the denial or her request for a final restraining order. Unreported.

Source: New Jersey Law Journal June 1, 2009 Editorial assistance was provided by Timothy O’Donnell. Mr. O’Donnell is a 2L at Seton Hall University School of Law and is interested in practicing criminal law in the future.

20. New Court Rules Effective September 1, 2009.

Index 1. US Supreme Court Rules Lab Report Not Admissible in Criminal Case. Melendez­ Diaz v. Mass 2. In DWI Alcotest, State Must Prove Defendant was Observed for 20 Minutes Prior to Test. State v. Filson 3. Miranda Violation cannot be Asserted by Co­defendant. State v. Baum 4. Warrantless Search to Check on Unattended Child Permitted Under Community Caretaking. State v. Bogan

5. Refusal Stands Even if Driver Does Not Understand English. State v. Marquez 6. Illegal Immigrant Status Considered in Bail. State v. Fajardo­Santos 7. Law Division Judges Say that Entire Judge King Alcotest Report was Not Adopted

by Supreme Court. State v. Coppola 8. Police May Interrogate Even if Public Defender Assigned. Montejo v. Louisiana 9. If Emergency Call, Police Can Enter and Seize Item in Plain View. State v.

O’Donnell 10. School Officials Cannot Search Child’s Underwear for Drugs. Safford Unified Sch. Dist. No. 1. v. Redding 11. Judge Can Suspend DL for Traffic Offense. State v. Moran 12. Condo Parking Garage is Quasi­public for Refusal Violation. State v. Bertrand 13. Mirror Obstruction Should Obstruct Driver’s View for Violation. State v. Barrow 14. After Bail and Released, Police Could Question Defendant. State v. Wessells 15. New Trial Where Attorney Did Not Advise Defendant of Mandatory Deportation.

State v. Nunez­Valdez 16. Police Can Arrest Juvenile if Curfew Violation and No ID. State in the Interest of R.M. 17. After Juvenile Complaint Filed, No Miranda Waiver in Absence of Counsel. State in the Interest of P.M.P. 18. MVC/DMV Can Suspend NJ DL for Florida DWI Two Years Ago. Carrasco v. N.J. Motor Vehicle Commission 19. For Domestic Violence, Calls Must be Annoying or Threatening. Quesada v.

Gonzales 20. New Court Rules Effective September 1, 2009.