Criminal Defense Attorney New Jersey

Supreme Court Rejects State’s Attempt to Overturn Car Warrant Requirement

admin — Sun, 05 Feb 2012 04:09:06 +0000

2/3/12. The NJ Supreme Court issued a joint order today in four combined cases that sought to have to court do a back flip on Pena Flores where the Court had previously ruled that the police generally need at least a telephonic warrant to do most car searches. The State alleged that Pena Flores has been too big a burden on law enforcement and has resulted in less detection of criminal conduct. They supported this with NJ State Police (NJSP) data. That the court found was a fatal flaw. The court said it might reconsider if true statewide data is presented in the future.

I wonder if the court knew of the NJSP memo instructing troopers how to avoid Pena Flores by obtaining more consents? It would explain their lack of confidence in the NJSP data. Well, anyway Pena survives intact despite speculation as to why the court had granted cert on these cases. Now we know.

Jeff Gold

Speedy Trial Issue Going To Supreme Court

admin — Tue, 31 Jan 2012 20:47:40 +0000

1/31/12. The NJ State bar has approved amicus participation in State v Cahill. In Cahill the App Div affirmed a speedy trial dismissal of a DWI after a 16 month period between downgrade and listing. The State requested cert essentially for two reasons, (1) that the def never asserted his right to a speedy trial and showed no actual prejudice and (2) that dismissal goes against, in the State’s words, the Court’s long held “philosophy” to eradicate DWI from our roads. The Bar is particularly concerned with the implications to judicial impartiality from the later States’ point. While we agree that there is a public policy, of course, against DWI, we do not agree that this is part of a Court held “philosophy” that can mitigate a defendant’s constitutional right to a speedy trial. Further, there are issues with whether the NJ Constitution requires a defendant to bring himself to trial, whether actual prejudice is necessary in the context of a traffic case, whether AOC dir 1-84 (60 days) can only be used against a defendant but not for a defendant and whether the facts in this case will be much rarer since AOC 4-11 which now requires all traffic to stay with the indictable.

Jeff Gold
Immediate Past Chair, NJSBA Mun Ct Practice Section

Frontier Style Judge Removed

admin — Wed, 25 Jan 2012 00:40:27 +0000

1/20/12. There have been several cases recently where Municipal Court judges have been at issue for crossing the line between judge and prosecutor, but the case of a Linden Twp. Judge was no mere weaving over the yellow line. He jumped the line and landed in a ditch on the other side. In a matter last year, the Linden Twp Judge denied a continuance to get a lawyer, allowed the arresting officer to act on behalf of the State, dotted the State’s case with his own questions, then convicted and sent two defendants to jail. The case was later reversed by the Law Division who called said the judge called to mind the days of back woods frontier hanging judges who despensed “justice” in dictatorial style. Judical ethics charges were later instituted. (The judge has cited in his defense, calendar concerns for why he moved a case without his prosecutor.) There were 5 or 6 news articles on the case, but still Linden Twp political support remained firm in its support of its judge…until Tuesday when the town finally removed the judge in favor of another political appointee. The judicial ethics proceedings are pending.

Jeff Gold

Warrant Now Required For GPS Tracking By Police

admin — Wed, 25 Jan 2012 00:35:21 +0000

1/23/12. The U.S. Supreme Court ruled in US v Jones today that a warrantless installation and use of a GPS device to track a suspect’s vehicle the Fourth Amendment.

“It is important to be clear about what occurred in this case: The government physically occupied private property for the purpose of obtaining information,” … “We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

The Fourth Amendment “persons, houses, papers and effects.” meant that the vehicle in this case was an “effect.”

“Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment,”

”Where, as here, the government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred. Trespass alone does not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information.”

Jeff Gold

New Court Advisement as to Immigration Consequences in NJ Municipal Courts

admin — Fri, 06 Jan 2012 02:16:58 +0000

MEMORANDUM
Directive # 09-11

To: Assignment Judges
Presiding Judges-Municipal Courts
Municipal Court Judges
From: Glenn A. Grant
Subj: Informing Municipal Court Defendants of the Immigration
Consequences of Guilty Pleas
Date: December 28, 2011

This Directive promulgates procedures to be followed in the municipal courts
to inform defendants that a guilty plea to or conviction of certain
municipal court offenses may negatively affect their immigration status,
including possibly resulting in deportation. The Supreme Court approved
these procedures on the recommendation of the Conference of Presiding
Judges-Municipal Courts.

In State v. Nunez-Valdez, 200 N.J. 129, 131 (2009), the New Jersey Supreme
Court held that defense counsel, in failing to inform the defendant that
under federal law his conviction would mandate deportation, did not provide
effective assistance to the defendant. Similarly, in Padilla v. Kentucky,
____ U.S. ____, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010), the
United States Supreme Court held that the Sixth Amendment requires defense
counsel to provide affirmative, competent advice to a noncitizen defendant
regarding the immigration consequences of a guilty plea.

In 2011, the New Jersey Supreme Court addressed this constitutional
requirement in Superior Court criminal cases; see Directive #05-11
(“Criminal Plea Form – Question Regarding the Immigration Consequences of a
Guilty Plea”). Consistent with Nunez-Valdez, Padilla, and Directive #05-11,
this Directive addresses the same concerns in municipal court cases by
requiring municipal court judges (1) to inform defendants that a guilty plea
or a finding of guilt as to certain offenses may result in negative
immigration consequences and (2) to inform defendants that they have a right
to seek advice from an attorney regarding those potential consequences.
Procedures

A municipal court judge shall inform defendants of possible
immigration consequences and of their right to seek counsel on these matters
at three stages of the
court process: (A) as part of the court’s opening statement for each court
session; (B) at defendant’s first appearance; and (C) as part of the guilty
plea colloquy.

A. Opening Statement
The municipal court judge shall include the following language in the
opening statement for each municipal court session:

If you are not a United States citizen and
if you plead guilty to or are convicted of certain offenses heard in the
municipal court, including some motor vehicle offenses, it may result in
your being deported from the United States, or it may prevent you from being
re-admitted to the United States if you leave voluntarily, or it may prevent
you from ever becoming a naturalized American citizen. You have a right to
seek advice from an attorney about the effect a guilty plea will have on
your immigration status.

This language will be incorporated into each of the three model opening
statements that the Supreme Court adopted in 2008 – one model opening
statement for sessions handling criminal matters only, one for sessions
handling motor vehicle offenses only, and one for combined sessions.

B. First Appearance

At the first appearance proceeding, any defendant charged with the following
offenses shall be advised of the immigration consequences of a guilty plea:

(1) all disorderly or petty disorderly persons offenses;
(2) driving while intoxicated (N.J.S.A. 39:4-50; N.J.S.A. 39:4-50.14;
N.J.S.A. 39:3-10.13; N.J.S.A. 12:7-46);
(3) operating motor vehicle while in possession of a CDS
(N.J.S.A. 39:4-49.1).

The municipal court judge shall engage in the following colloquy with
defendants charged with the above-listed offenses at first appearance
proceeding:

You have a right to seek advice from a
private attorney about the effect a guilty plea or conviction will have on
your immigration status. If you qualify for a court-appointed attorney, you
can speak to the public defender about the immigration consequences of your
plea. Do you understand?

The municipal court judge shall engage in this colloquy during the first
appearance for all defendants charged with any of the above-listed offenses,
regardless of the defendant’s name, appearance, or English proficiency.
This requirement is not intended to in any way limit the judge’s discretion
to engage in this same colloquy with other defendants who have been charged
with offenses other than those listed above.

C. Guilty Plea

Before accepting a guilty plea to any of the above-listed
offenses, the municipal court judge shall engage in the following colloquy
with the defendant:

(1) Are you a citizen of the United
States?

(If defendant answers “No” to question 1,
defendant must answer questions 2 through 6.)

(2) Do you understand that if you are
not a citizen of the United States, this guilty plea may result in your
removal from the United States and/or may stop you from being able to
legally enter or re-enter the United States?

(3) Do you understand that you have
the right to seek individualized advice from an attorney about the effect
your guilty plea may have on your immigration status?

(4) Have you discussed with an
attorney the potential immigration consequences of your plea?

(If defendant answers “No” to question 4,
defendant should next answer question 5. If defendant answers “Yes” to
question 4, defendant should next answer question 6.)

(5) Would you like the opportunity to
do so?

(6) Having been advised of the possible
immigration consequences and of your right to seek individualized advice on
your immigration consequences, do you still wish to plead guilty?

If during the plea colloquy an indigent defendant seeks the opportunity to
discuss with an attorney the potential immigration consequences of the plea
and the offense charged would result in a consequence of magnitude, the
court should adjourn the proceedings and appoint the municipal public
defender to represent defendant. The municipal court judge is under no
obligation to appoint additional separate counsel for an indigent defendant
to advise defendant on the immigration consequences of a plea.

Additionally, if during the plea colloquy an indigent defendant who is not
charged with an offense that would result in a consequence of magnitude
seeks the opportunity to discuss with an attorney the possible immigration
consequences of the plea, the court should adjourn the matter to give the
defendant the opportunity to do so.

Similarly, if during the plea colloquy a non-indigent defendant seeks the
opportunity to discuss with an attorney the possible immigration
consequences of the plea, whether or not there are possible consequences of
magnitude, the court should adjourn the matter to give the defendant the
opportunity to do so.

Finally, at no point in the proceedings should the municipal court judge
attempt to advise defendants on an individualized basis as to what the
actual immigration consequences of a particular plea might be. Both
Padilla, 130 S. Ct. at 1486, and Nunez-Valdez, 200 N.J. at 131, made it
clear that such individualized advice is the responsibility of counsel, not
the judge. As stated previously, the judge’s responsibility is limited to
informing defendants that a plea or a guilty finding may result in negative
immigration consequences and that defendants in that situation have the
right to seek advice from an attorney regarding the potential consequences.

NJ holds that odor plus admission of alcohol justify field sobriety detention

admin — Fri, 23 Dec 2011 02:57:28 +0000

12-22-11. Today The NJ appellate division decided what most of us have assumed de facto for a long time, namely that it doesn’t take much to justify administration of the Standardized Field Sobriety Tests. Here the defendant had tinted windows and a loud exhaust justifying the stop, but no driving conduct that was indicative of DWI. Then the officer smelled alcohol on defendant (and when don’t they) and the defendant admitted having one beer. That the App Div said today is enough reasonable suspicion to administer the roadside testing. Although the instruction is much like an arrest because the def is not free to go, the Court found that the instruction was more limited than a full arrest and applied the Terry stop and frisk standard of reasonable suspicion to the case.

Jeff Gold

Court beats back defense challenge to temperature device

jgold — Wed, 21 Dec 2011 21:15:31 +0000

12-20-11. The NJ Appellate Division, today in State v Holland and State v Pizzo, beat back a long standing defense challenge to the State’s use of a temperature device used to calibrate the Alcotest 7110. The Court held that a Control Company device may be used to substitute for the previously used Ertco Hart device.

Jeff Gold

Court holds that weaving between lanes need not be “unsafe” to violate NJ law

jgold — Wed, 21 Dec 2011 21:04:01 +0000

12-14-11. In State v Regis today the NJ Supreme Court ruled that weaving (lane change) statute did not require the State to prove that the movements were unsafe. This reversed the lower court which had held the contrary.

Jeff Gold

Senate takes anti-hispanic refusal bill off agenda

jgold — Fri, 09 Dec 2011 01:02:11 +0000

12-8-11. I was scheduled to testify on behalf of the New Jersey State Bar Association (NJSBA) today in the NJ Senate against the proposed Refusal bill . I asked that the executive board of the NJSBA take emergent action in opposition to the proposed refusal bill which would trick unawary subjects into refusing and being double penalized therefore. I am glad to report that we were able to get the NJSBA to fax a letter in opposition to the Senate yesterday. Also I was able to bright the matter to the attention of the Hispanic Bar Association of NJ. Obviously when 85% of all court translations are Spanish to English (AOC stats) such an organization should be on notice of this bill. They weren’t, and so had no idea of the emergent issue. The Hispanic Bar president and its Public Policy committee chair were immediately helpful, and agreed to testify for the Hispanic Bar, along with me for the NJSBA. Sometime this morning, after the fax from the NJSBA and after the Hispanic Bar called the Senate to confirm that they would testify, I received a call that the bill was being “held” (taken off agenda for today. ) I have no idea if this was coincidence or not and no idea when it will pop up again, whether in the lame duck session or otherwise. In any event, my reading of State v Marquez is that the court used a statutory basis for decision only because a full constitutional analysis was not necessary. The legislature already built in a protection against Miranda based confusion. However, I think it is clear from Marquez, Widmaier, Duffy , and other cases that some form of notice is constitutionally required to avoid the confusion between the assertion of 5^th A rights and a Refusal which requires an unequivocal “yes”. We can only hope that the legislature will not simply buy into this rushed bill without understanding the consequences to people who (regardless of how guilty they may be of DWI) innocently assert their 5^th A rights only to be rewarded with double penalties and being forced to plead guilty because the State now has a refusal charge to hold over them if they want a trial. Moreover, just think how that that injustice multiplies for Hispanics who will still be given Miranda rights in Spanish but then be asked in English to take the breath test without any explanation whatsoever required as to the consequences of asserting those 5^th amendment rights , ie that those rights no right to refuse by silence or request and attorney.

Throwing the baby out with the bath water?

admin — Wed, 30 Nov 2011 14:51:25 +0000

11/30/11. Per the New Jersey Law Journal (coming out next week) we will be informed that the refusal bill I mentioned last week (which would remove the requirement that police inform defendants they do not have a right to refuse) got pushed up in committee … before the State Bar even got a chance to review it… and that in the Attorney General’s words, the bill was its own ”initiative” to defeat defendants who do ” not speak English”. I leave it to you to decide whether that sounds kosher, but if passed the bill would seem to rob all defendants of the due process right (or at least a fundamental fairness right) to know that refusal by silence or assertion of right to a lawyer is not encompassed within Miranda. I wonder if this bill’s reasoning isn’t like throwing the baby out with the bath water?

Jeff Gold