Winter 2010 Municipal Court Law Review
Winter 2010 Municipal Court Law Review
1. No Points on Unsafe 97.2 if More than Five Years between Offenses. Patel v. New Jersey Motor Vehicle Commission __ NJ __
(A-86-08) 11-10-09
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.
2. 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 concerns the admissibility of the results of an Alcotest. By leave granted, the State appeals 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, cert. denied, ____ U.S. ____, 129 S. Ct. 158, 172 L. Ed. 2d 41(2008). The court reverses. The court 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.
3. Destruction of Video Tape may Permit DWI Defendant to Vacate Guilty Plea. State v. Mustaro ___ NJ Super ___ (App. Div. 2009) 14-2-6169 12/14/09
The court considered defendants 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 officers patrol car — had been destroyed through reuse in accordance with the police departments 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).
4. DWI Dismissed Under Speedy Trial Where More than 360 Day Lapse. State v. Tsetsekas ___ NJ Super ___ (App. Div.2009) 14-2-6170 12-14-09
The court reversed the Law Division conviction and required dismissal of the DWI charge due to a violation of defendants right to a speedy trial. The extensive delay in adjudicating this matter, caused solely by the states repeated lapses in preparation and the failure to secure its witnesses, infringed on defendants due process rights.
5. 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 petitioners 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
6. Rebuttable presumption a road sign is properly posted State v Smith 408 NJ Super. 484 (App. Div. 2009)
Defendants conviction on trial de novo for violating N.J.S.A. 39:4-125 is affirmed because he turned his vehicle "around so as to proceed in the opposite direction on a highway" on which a "no U turn" sign was conspicuously posted. Defendant does not have to perform a "u turn." The West Annotated version of the statute contains an error. The "no U turn" sign need not be on a "state" highway, and therefore whether or not the road was a "state" highway was irrelevant, as there is a rebuttable presumption the statute was properly posted. As defendant was not entitled to assigned counsel, the fact he was improperly assigned counsel in the Law Division does not require vacation of the municipal conviction because he was not assigned counsel there.
7. Waivers of Forfeiture is Judicial Function. State v. Rone ___ NJ Super ___ (App. Div. 2009) 14-2-6128
A decision by the prosecutors office to waive forfeiture of office under N.J.S.A. 2C:51-2 is not analogous to prosecutorial decisions with respect to pretrial intervention and is not entitled to enhanced deference or judicial review. Waiver of forfeiture is a judicial function, not a prosecutorial one.
Photos p1 HANDLING DRUG, DWI & SERIOUS MOTOR VEHICLE CASES SEMINAR October 26, 2009
Speakers include:
HON. JOAN ROBINSON GROSS, PJMC Union County
Chair 2009, Supreme Court Municipal Practice Committee
HON. JOHN J. COYLE, JR. JSC Warren County
MATTHEW REiSIG ESQ.
For Future seminars and purchase of Audio CD and book call New Jersey Institute for Continuing Legal (732) 214-8500
P3 HANDLING DRUG, DWI & SERIOUS MOTOR VEHICLE CASES SEMINAR October 17, 2009 Mt. Laurel, NJ
Speakers include:
ROBERT A. GLEANER, ESQ. Prosecutor in Audubon and Stratford HON. ROBERT J. ZANE, III, PJMC Camden County For future seminars, call NJ ICLE at (732) 214-8500 |
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Winter & Spring Community Events
Jan. 16 Bishop Ahr B.G.A. Wrestling Alumni
Jan. 23 Jersey Shore Triathlon Club Social
Jan. 25 NJ Bar Municipal Court Meeting
Feb. 20 NJ Bar Municipal Court Meeting
March 7 Belmar St. Patrick Parade
April 17 Widener Law Alumni – Philadelphia
April 19 NJ Bar Municipal Court Meeting 4pm
April 19 Municipal Court Seminar ICLE Fairfield
April 25 Bishop Ahr – St. Thomas – 40 Year Reception and mass
April 27 ICLE Nuts and Bolts of Elder
April 27 ICLE Nuts and Bolts of Elder Law
May 3 Municipal Court Seminar ICLE Law Center
May 19,20-21 National Police Week
August ? 25 year Anniversary of Ken’s graduation from Law School and passing bar exam
South Brunswick Varsity wrestling
2010 schedule
Wed | 01/06/10 | PERTH AMBOY | |
Thu | 01/07/10 | Woodbridge High School | |
Sat | 01/09/10 | | |
Sat | 01/09/10 | | |
Sat | 01/16/10 | Edison High School | |
Sat | 01/16/10 | Kittatinny Regional H. S. | |
Sat | 01/16/10 | Sayreville War Memorial High Sch | |
Tue | 01/19/10 | | |
Sat | 01/23/10 | | |
Sat | 01/23/10 | | |
Sat | 01/23/10 | | |
Wed | 01/27/10 | | |
Fri | 01/29/10 | @ GMC @PISCATAWAY | |
Sat | 01/30/10 | @ GMC @PISCATAWAY | |
Tue | 02/02/10 | Manalapan High School | |
Wed | 02/03/10 | SOUTH RIVER HS | |
Sat | 02/06/10 | NORTH BRUNSWICK | |
Sat | 02/06/10 | Arthur L. Johnson High School | |
Sat | 02/06/10 | Rutgers Prep School | |
Thu | 02/11/10 | SPOTSWOOD HS | |
Sat | 02/13/10 | Highland Park High School | |
Sat | 02/13/10 | Nottingham High School | |
Sat | 02/13/10 | Rancocas Valley Reg High School | |
Fri | 02/19/10 | DISTRICTS [Brendan V is defending champ 171] | |
Sat | 02/20/10 | DISTRICTS | |
Tue | 02/23/10 | @ Region V @ Hunterdon Central | |
Fri | 02/26/10 | @ Region V @ Hunterdon Central | |
Sat | 02/27/10 | @ Region V @ Hunterdon Central Brendan V is defending champ 171] | |
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3/5-7 State wrestling Championships Atlantic City Convention Hall
11. Free Municipal Court forms
The program “HANDLING DRUG, DWI & SERIOUS MOTOR VEHICLE CASES SEMINAR” was held October 26, 2009 sponsored by the New Jersey Institute for Continuing Legal Education NJ ICLE
CD with forms and Materials were provided to all attendees! If you could not attend and need some forms, Send an email to Kenvnjlaws@verizon.net and select up to five forms or motions you request. The materials will be sent to you within 4 days by Speaker Kenneth A. Vercammen, Esq. Edison, NJ
Past Chair Municipal Court Section
2005 NJSBA Municipal Court Attorney
of the Year
Editor- NJ Municipal Court Law Review
Available Forms:
02 Lt of rep only
02 DISC
02a DISC to DMV
02d Disc Complainant
03D Retainer-MUN COURT
04 Hearing notice
100 Cross Exam Q-DWI
AG Guidelines binding
Appeal Fee Bill to Client
atty_guidelines_0505.pdf
Bail reduce Motion
Brief post convict vacate plea
Conditional Discharge Pet CDL
constructive poss
Court cannot handle discovery
Crim interview aba
crim- Specific defenses
Defense Affidavit to Client
DISC to Client from Prosecutor
DUI Motions non disc- jury
DWI- Blood defense brief
DWI- expert letter
DWS Fine reduced parking ticket
Expungement recommend
MIRANDA brief
More disc brief
Motion for Civil Reservation
Motion for Slap
Motion to be Relieved
Motion- Dismiss No disc mun Pros
Mun Ct Interview
MVC_ DMV - Follow-up Hearing
MVC_ DMV points for Atom
No discovery dismiss Brief
No Show in Court
OBJ TO LAB CERT
OPRA Brief Crim
Order mark try or dismiss
Order to be Relieved
Pros- missing abstract
Refusal Brief wrong statement
Storm Cert private pros
Sup-Miranda
SUPPRESSION MOTION
SUPPRESSION BRIEF
Chun discovery brief
Evening telephone consults for subscribers, police officers and court staff attorneys - Help for persons who read our newsletter-
Subscribers 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.
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.
Index
1. No Points on Unsafe 97.2 if More than Five Years between Offenses. Patel v. New Jersey Motor Vehicle Commission
2. 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 Urgrovics
3. Destruction of Video Tape may Permit DWI Defendant to Vacate Guilty Plea. State v. Mustaro
4. DWI Dismissed Under Speedy Trial Where More than 360 Day Lapse. State v. Tsetsekas
5. Police can Enter Home Under Emergency Aid Exception Michigan v. Fisher
6. Rebuttable presumption a road sign is properly posted State v Smith
7. Waivers of Forfeiture is Judicial Function. State v. Rone
8. Photos p1 HANDLING DRUG, DWI & SERIOUS MOTOR VEHICLE CASES SEMINAR October 26, 2009
9. Winter Community Events
10. Free Municipal Court forms
11. Subscription form
12 Evening telephone consults for subscribers, police officers and court staff attorneys
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