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Revised: June 1, 2009 MUNICIPAL COURT LAW REVIEW SUMMER 2009 1. Six-month Alcotest inspection applies after March 17, 2008. State v. Pollock 407 NJ Super. 100 (App. Div. 2009) Defendant appealed his conviction for a per se violation of N.J.S.A. 39:4-50, driving with a blood alcohol concentration of 0.08 percent or more. The Court is called upon to determine whether the semiannual-recalibration requirement for Alcotest machines, established by the Supreme Court in State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), is applicable to cases in which the test was administered prior to Chun and in compliance with the then existing annual-recalibration protocol. Because the court determined that the change mandated by Chun was not intended to be applied to such, the court affirmed the conviction. 2. 3 year old’s statements admissible under tender years exception to hearsay. State v. Coder ___ NJ ___ (Decided May 4, 2009) A-28-08 In defendant’s criminal trial on charges of sexual assault on a minor, the out-ofcourt 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. 3. PTI can be conditioned on a plea to a traffic offense. State v. Mosner 407 NJ Super. 40 (App. Div. 2009) Admission into the Pre-Trial Intervention program can be conditioned on the defendant's guilty plea to a motor vehicle offense carrying a mandatory 180-day term of imprisonment where the defendant's attitude would render pretrial intervention ineffective. 4. Police cannot search car passenger compartment if occupant already arrested. Arizona v. Gant 129 S. Ct. 1710 (2009) Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that an arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. The Arizona Supreme Court's reversal of Defendant's drug conviction is affirmed. 5. Ordinance can bar taking of photos for sale. State v. Chepilko 405 NJ Super. 446 (App. Div. 2009) The taking of photographs of persons walking on the Atlantic City Boardwalk and then attempting to sell the photographs to the subjects does not constitute expressive

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conduct entitled to First Amendment protection that insulates a person engaged in this activity from prosecution for a violation of municipal other Boardwalk. 6. Rat balloon ordinance violates free speech. State v. DeAngelo 197 NJ 478 (2009) The Lawrence Township sign ordinance violates the First Amendment right to free speech and is overbroad. 7. Malicious prosecution lawsuit requires more than negligent investigation. Brunson v. Affinity Federal Credit Union ___ NJ ___ (Decided May 5, 2009) A-6008 Because Bunson’s arrest and detention were based on probable cause, his claim for malicious prosecution was properly dismissed by the trial court. In the circumstances presented, New Jersey does not recognize a cause of action for negligent investigation as a surrogate for a malicious prosecution claim. 8. Class action suit on discovery fees dismissed. Constantine v. Township of Bass River 406 NJ Super. 305 (App. Div. 2009) Plaintiff appealed from the trial court's dismissal of his class action complaint in which he sought a declaration of permissible fees that a municipality may charge for discovery provided relative to matters in the municipal court. Plaintiff also challenged the denial of his motions for bilateral class certification and permission to file a second amended complaint. While affirming dismissal of plaintiff's complaint because it failed to present a cognizable claim for relief, the court also addressed an interlocutory order entered by the trial judge that declared OPRA's "default" fee schedule, N.J.S.A. 47:1A-5(b), to be the appropriate fees that a municipality may charge for discovery in the municipal court. The court also referred proper consideration of the discovery fee issue to the Attorney General, the Legislature, and the Supreme Court's Committee on Municipal Court Practice. 9. FRO reversed where judge did not advise defendant of right to cross-examine witness. Rivas v. Colon (App. Div.) decided Feb. 9, 2009 20-2-2707 Unpublished The final restraining order entered in this domestic violence action is vacated, the temporary restraining order is reinstated, and the matter is remanded for retrial since the procedure followed by the trial judge - including no mention of defendant’s right of cross-examination or to call witnesses and the recitation of the allegations of the complaint by the judge without testimony by plaintiff - violated defendant’s right to due process. Source: N.J.L.J. Daily Briefing - 02/10/2009 10. MVC can suspend DL if NJ driver suspended in another state in prior year.

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Olsvary v. New Jersey Motor Vehicle Commission (App. Div.) decided April 29, 2009 05-2-3670 Unpublished Appellant appeals from a final decision of the Motor Vehicle Commission (MVC) that denied her request for an administrative hearing and upheld the suspension of her New Jersey driving privileges following her plea of nolo contendere to a Florida charge of driving while intoxicated. Pursuant to the Interstate Driver License Compact, the Florida conviction was transmitted to the MVC. Appellant mistakenly believed her New Jersey driving privileges were suspended contemporaneously with her Florida privileges. The appellate panel affirmed, finding no due process violation in the agency's failure to conduct an administrative hearing where appellant presented no disputed issues of material fact when requesting a hearing. Source: 196 N.J.L.J. 336 11. In all disorderly offenses defendant must be advised of right to counsel. State v. DiMatteo (App. Div.) decided April 14, 2009 14-2-3490 Unpublished Defendant appeals his conviction in municipal court of the petty disorderly persons offense of harassment. Finding that defendant was not adequately advised of his right to counsel or that he faced a possibility of incarceration for up to 30 days, and that his waiver was, therefore, not intelligent and knowing, the court reverses his conviction and remands for a new trial. Source: 196 N.J.L.J. 198 4/20/09 12. Refusal guilty plea vacated where judge did not take factual basis from nonEnglish fluent driver. State v. Kesavan (App. Div.) decided May 26, 2009 05-23928 Unpublished Defendant appeals from his de novo conviction for refusal to submit to a breathalyzer and leaving the scene of an accident. Defendant is not a native speaker and does not appear on the record to be particularly fluent in English. Defendant was not asked if his plea was being made voluntarily or whether he was being forced or coerced. No testimony was taken to establish defendant's knowing, intelligent and voluntary waiver of his right to a trial. Nothing in the record establishes an adequate factual basis. Accordingly, the appellate panel vacates the guilty pleas and remands the matter for trial. Source: N.J.L.J. Daily Briefing - 05/27/2009 13. Idling while drunk is not DWI. State v. Putz (App. Div.) decided ______05-23929 Unpublished Defendant appeals his conviction of driving under the influence of alcohol. The arresting officer observed and approached defendant's truck, in which he was sleeping, that was parked with the engine running in a turnaround on private property. Because the record does not support a finding beyond a reasonable doubt that defendant intended to operate his vehicle at the time of his arrest, the appellate panel reversed. Source: N.J.L.J. Daily Briefing - 05/27/2009

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14. Harassment required proof of intent to alarm or annoy. State v. DeGiulio (App. Div.) decided May 20, 2009 14-2-3889 Unpublished Where defendant was charged only with violating N.J.S.A. 2C:33-4(c), the judge erred in sua sponte amending the complaint to include violations under 4(a) and 4(b) and defendant's convictions for harassment under the latter two provisions are reversed. His conviction under 4(c) must be reversed as the State failed to prove a course of alarming conduct or of repeatedly committed acts done with the purpose to alarm or seriously annoy his ex-wife. His conviction for contempt under N.J.S.A. 2C:299(b) for knowingly violating the terms of the FRO previously entered against him is also reversed since there was no evidence of a harassing communication with his ex-wife nor did he commit an act of domestic violence against her when a near collision occurred when they both pulled their cars out of their parking spaces at the same time during a parenting exchange. Source: NJ Law Journal 196 NJLJ 553 May 25 Editorial Assistance provided by Associate Editor Michael Tucker, a 2 nd year student at Seton Hall Law School. Mr. Tucker is a graduate of The College of New Jersey class of 2007 with a Bachelor’s Degree in political science. He hopes to open his own general law practice in the future. 15. Governor Corzine Signs New Law Limiting Teen Drivers. New Jersey is first state to have teen driver decal. Senate Bill S-2314/A-3069 requires the use of an identifier on vehicles driven by teens holding a permit or provisional license. The new law also will assist police in identifying young drivers who may be in violation of the Graduated Driver License (GDL) restrictions. Governor Corzine also signed S-16/A-3070, revising nighttime driving and passenger restrictions on permit and provisional drivers. New Jerseys' Graduated Driver License (GDL) law currently restricts teens on a provisional license from driving between midnight and 5 a.m. Although only 15 percent of miles driven by 16 and 17year-olds are between 9 p.m. and 6 a.m., more than 40 percent of their fatal crashes occur during this time period. The bill also renames the provisional license "probationary." 16. Evening telephone consults for subscriber attorneys - Help for Attorneys who subscribe to our newsletterSubscribers to our newsletter often have legal questions regarding their cases. We have updated our office policy to speak with attorneys in the evening and weekend regarding their cases. Since Kenneth Vercammen is in court every day, we call back from our cell phone and call your cell phones. Calls are returned after 5pm so it does not interfere with our client consults.

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Our Professional Liability carrier recommends attorneys fax over the following to Fax#: 732-572-0030: 1. Detailed question written out 2. Relevant facts and location of court 3. Your cell phone number Optional- Copy of legible ticket or hearing notice This information will help Mr. Vercammen answer the question when he returns from court and allow the office to conduct a quick conflicts check. A fax is easy and the office staff does not have to get bogged down taking messages. All calls are returned within 72 hours, so don’t wait until the morning of your trial. Page 1- Seminar Tape and Book RECENT CHANGES IN MUNICIPAL COURT LAW SEMINAR Monday, May 4, 2009 Co-Sponsored by NJSBA Municipal Court Section 702 page book & CD with forms available from ICLE with Section member discount at (732)214-8500 Speakers Kenneth Vercammen, Esq; William Brigiani, Esq.; Denis F. Driscoll, Esq.; Hon. Joan Robinson Gross, PJMC; John Menzel, Esq. Photos: Page 2 –NJ State Bar president Allen Etish with past winners of the NJ State Bar Municipal Court Attorney of Year Jeff Gold and Ken Vercammen Page 3 Photo- Hon. Spencer Robbins, Chief Judge Woodbridge and South Plainfield was the speaker at the NJ State Bar Mun Ct Section meeting on March 30, 2009 Topic: Recent issues in Municipal Court. Meetings are open to all members of the Municipal Court Practice Section. There is no fee for members to attend this meeting. To join the Municipal Court Practice Section, contact NJSBA Member services at 732249-5000, or www.njsba.com. Page 3 Photo- Kenneth Vercammen recommended to Governor Corzine to amend the NJ Estate Tax Law to permit seniors to leave up to $2,000,000 in their Will to children without tax, similar to Federal Estate & Gift Tax. In photo Colleen Flynn, Governor Corzine, Lou Kady, Kenneth Vercammen, Chair, ABA Estate Planning & Probate Committee 17. Friends of Kenneth Vercammen are invited to his 50th Birthday Party Saturday July 18 5pm- 11pm Join us for an exciting evening. Swim Pool, 8 person Hot tub plus Deck and Tiki Bar. DJ Blender drinks

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LOCATION: South Brunswick, NJ at 16 & 17 Ireland Brook Dr. near Farrington Lake, off Route 130 and Rt. 522) Directions: Visit our website at www.njlaws.com for directions to Ireland Brook Dr., or email/fax/call and we will send directions Kenneth Vercammen, Esq. at (732) 572-0500 (Law office) Yes, We will be attending the party - email yes kenvnjlaws@verizon.net Name: _____________________________ or fax back to Law Office Fax: (732) 572-0030 Name: _____________________________ Are you prepared to prosecute or defend your client in new Alcotest cases? This informative guide to Municipal Court practice and procedure will familiarize you with the most recent developments affecting cases that are heard in Municipal Court. An authoritative panel of experienced attorneys are joined by a Presiding Municipal Court Judge to explore a wide variety of matters that you are likely to encounter. They also bring you up to date on recent developments you need to understand in order to effectively represent your clients. Program Highlights Criminal Case Law and Legislative Update - Kenneth A. Vercammen, Esq. The Prosecutor’s Perspective: DWI, no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double jeopardy issues - Denis F. Driscoll, Esq. Judicial Perspective: Expert arguments, important court rules, common errors by defense attorneys and prosecutors, how to impress the court and not annoy the court staff - Hon. Joan Robinson Gross, PJMC Recent developments in traffic law, merged traffic tickets and more William Brigiani, Esq. DWI and Chun - John Menzel, Esq.

Plus.. The Municipal Court Practice Committee's Proposed Rule Amendments are discussed. New

Jersey

Institute

for

Continuing

Legal

Education 6


The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey - Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 customerservice@njicle.com INDEX 1. Six-month Alcotest inspection applies after March 17, 2008. State v. Pollock 2. 3 year old’s statements admissible under tender years exception to hearsay. State v. Coder 3. PTI can be conditioned on a plea to a traffic offense. State v. Mosner 4. Police cannot search car passenger compartment if occupant already arrested. Arizona v. Gant 5. Ordinance can bar taking of photos for sale. State v. Chepilko 6. Rat balloon ordinance violates free speech. State v. DeAngelo 7. Malicious prosecution lawsuit requires more than negligent investigation. Brunson v. Affinity Federal Credit Union 8. Class action suit on discovery fees dismissed. Constantine v. Township of Bass River 9. FRO reversed where judge did not advise defendant of right to cross-examine witness. Rivas v. Colon 10. MVC can suspend DL if NJ driver suspended in another state in prior year. Olsvary v. New Jersey Motor Vehicle Commission 11. In all disorderly offenses defendant must be advised of right to counsel. State v. DiMatteo 12. Refusal guilty plea vacated where judge did not take factual basis from nonEnglish fluent driver. State v. Kesavan 13. Idling while drunk is not DWI. State v. Putz 14. Harassment required proof of intent to alarm or annoy. State v. DeGiulio 15. Governor Corzine Signs New Law Limiting Teen Drivers. 16. Evening telephone consults for subscriber attorneys - Help for Attorneys who subscribe to our newsletter17. Friends of Kenneth Vercammen are invited to his 50th Birthday Party

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SUMMER Mun Law Rev 2009  

MUNICIPAL COURT LAW REVIEW SUMMER 2009 2. 3 year old’s statements admissible under tender years exception to hearsay. State v. Coder ___ NJ...

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