Top 25 Cases Affecting Municipal Court Practice

by Kenneth Vercammen
No discussion of recent municipal court case law would be
complete without first mentioning the most important case in the past 25
years, State v. Chun.
1
Here, the New Jersey Supreme Court held, subject
to certain conditions, the lcotest breath!testing machine is scientifically
reliable, and that its results are admissible in drun"en dri#ing
prosecutions$ %his article will analy&e the most important cases impacted
by Chun$
Driving While Intoxicated (DWI)
1$ '() dismissed under speedy trial grounds *speedy trial what+,
where more than -./ days lapse$ State v. Tsetsekas, 011 N$J$ Super$
1 *pp$ 'i#$ 2//1,$
%he ppellate 'i#ision re#ersed a con#iction and dismissal of a
'() charge due to a #iolation of the defendant2s right to a speedy trial$
%he e3tensi#e delay in adjudicating this matter, caused solely by the
state2s repeated lapses in preparation and the failure to secure its
witnesses, infringed on the defendant2s due process rights$
2$ No se4uestration of defense e3pert in '() case$ State v. Popovich,
0/5 N$J$ Super$ -12 *pp$ 'i#$ 2//1,$
%he defendant2s con#iction was re#ersed because the trial court erred
when it ruled the defendant2s e3pert was subject to a se4uestration order,
and would not permit the e3pert to watch the trial testimony$
-$ )n a '() case, state must demonstrate 2/!minute obser#ation of
dri#er prior to breath test by clear and con#incing e#idence, *a
breath test by clear and con#incing e#idence+, but arresting officer
can testify as part of 2/ minutes$ State v. Ugrovics, 01/ N$J$ Super$
052 *pp$ 'i#$ 2//1,$
1
*sentence is aw"ward, %his appeal concerned the admissibility of
the results of an lcotest$
%he arresting officer, rather than the lcotest operator, was the
person who obser#ed the defendant during the 2/ minutes prior to his
ta"ing the test$ %he appellate court held that the state is only re4uired to
establish that the test subject did not ingest, regurgitate or place anything
in his or her mouth that may could compromise the reliability of the test
results for a period of at least 2/ minutes prior to the administration of
the lcotest$ ccordingly, the state can meet this burden by calling any
competent witness who can so attest$
0$ 'estruction of #ideotape may permit '() defendant to #acate
guilty plea$ State v. Mustaro, 011 N$J$ Super$ 11 *pp$ 'i#$ 2//1,$
%he court considered the defendant2s appeal from the denial of a
post!sentence motion to #acate his plea of guilty to dri#ing while
into3icated$ %he motion was predicated on a claim that the state withheld
e3culpatory e#idence, but by the time the motion was filed, the e#idence,
*a #ideotape recorded by the camera in the arresting officers patrol car,,
had been destroyed through reuse, in accordance with the police
department2s procedures$ pplying State v. Parsons
2
and State v.
Marshall,
-
the court concluded the defendant failed to establish that he
would not ha#e admitted to dri#ing '() if he had access to the
#ideotape prior to the plea, and the denial of his motion was fully
consistent with a proper application of the principles set forth in State v.
Slater$
0

efusal
5$ 6reath test warnings now must be gi#en in Spanish$ State v.
Marque, 77 N$J$ 77 *2/1/,, *!-5!/1, 891291/$
%he New Jersey Supreme Court o#erturned the con#iction of a man
who refused to ta"e a blood!alcohol test because he did not understand
the warnings in :nglish$ %he Court held New Jersey;s implied consent
law,
5
and refusal law,
.
re4uire proof that an officer re4uested the motorist
2
to submit to a chemical breath test and informed the person of the
conse4uences of refusing to do so$ %he statement used to e3plain to
motorists the conse4uences of refusal must be gi#en in a language the
person spea"s or understands$
.$ )f not enough breath supplied on lcotest, officer must read
additional warnings$ State v. Schmi!t, 110 N$J$ Super$ 210 *pp$
'i#$ 2/1/,$
%he court held< 1, the police are re4uired to comply with N$J$S$$
-1<0!5/$2*e, by reading the standard language concerning the
conse4uences of a refusal to ta"e an lcotest *part two of the standard
statement, when a defendant une4ui#ocally agrees to submit to an
lcotest but then fails, without reasonable e3cuse, to produce a #alid
sample=, and 2, the police ha#e the discretion to discontinue the lcotest
and charge the arrestee with refusal without affording the arrestee the
ma3imum 11 attempts the lcotest machine permits$
8$ Condo par"ing garage is 4uasi!public for refusal #iolation$ State v.
"ertran!, 0/5 N$J$ Super$ 550 *pp$ 'i#$ 2//1,$

%he defendant2s con#iction for refusing to pro#ide breath samples,
pursuant to N$J$S$$ -1<0!5/$2, in a condo par"ing garage was affirmed$
%he par"ing garage of a high!rise condominium that held -50 cars, and
was restricted to use by residents of the building, constituted a >4uasi!
public area? for purposes of the statute$
5$ @rior refusal counts for third '()$ State v. Ciancaglini, 011 N$J$
Super$ 25/ *pp$ 'i#$ 2/1/,, cert grante!$
)n this appeal from a '() con#iction, after prior separate '() and
refusal con#ictions, this appellate panel disagreed with the holding in
State v. #iSomma,
8
and held that the prior refusal con#iction counts
toward ma"ing this a third offense$ %he court belie#es this holding is
consistent with a line of cases both before and after #iSomma,
concluding that a prior '() con#iction counts toward enhancement of
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the sentence imposed for a refusal con#iction$
5
%he court also held
double jeopardy does not bar reinstatement of the sentence originally
imposed in the municipal court for a third '() offense, which was
reduced in the Aaw 'i#ision to a sentence for a first '() offense$
1$ Befusal does not merge into '()$ State v. $ckert, 01/ N$J$ Super$
-51 *pp$ 'i#$ 2//1,$
con#iction for refusal to submit to a breath e3amination cannot
be merged with a '() con#iction$ Such a plea agreement #iolated
applicable merger principles, as well as the Court2s guidelines for
operation of plea agreements in the municipal courts of New Jersey$
!earch
1/$ Car search re4uires e3igent circumstances= no automatic auto
e3ception= telephonic search warrants appro#ed$ State v. Pena%
&lores, 115 N$J$ . *2//1,$
%he Supreme Court affirms its longstanding precedent that permits
an automobile search without a warrant only in cases where the police
ha#e both probable cause to belie#e that the #ehicle contains e#idence
and e3igent circumstances that would justify dispensing with the warrant
re4uirement$ (hether e3igent circumstances e3ist is to be decided on a
case!by!case basis, with the focus on police safety and the preser#ation
of e#idence$ %he Court also determined that a warrant obtained by
telephonic or electronic means is the e4ui#alent of an in!person warrant,
and does not re4uire proof of e3igent circumstances$
11$ @assenger pat down during traffic stop permitted if belief the gang
member is armed and dangerous$ 'riona v. (ohnson, 182 A$ :d$ 2d
.10 *2//1,$
(hile patrolling near a neighborhood associated with the Crips
gang, police officers ser#ing on ri&ona;s gang tas" force stopped an
automobile for a #ehicular infraction warranting a citation$ t the time of
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the stop, the officers had no reason to suspect the car;s occupants of
criminal acti#ity$ Cfficer %re#i&o attended to respondent Johnson, the
bac"!seat passenger, whose beha#ior and clothing caused %re#i&o to
4uestion him$ fter learning that Johnson was from a town with a Crips
gang and had been in prison, %re#i&o as"ed him to e3it the car in order
to 4uestion him further, out of the hearing of the front!seat passenger,
about his gang affiliation$ 6ecause %re#i&o suspected he was armed, she
patted him down for safety when he e3ited the car$ 'uring the pat down,
she felt the butt of a gun$ t that point, Johnson began to struggle, and
%re#i&o handcuffed him$ Johnson was charged with, inter alia,
possession of a weapon by a prohibited possessor$ %hus, Cfficer
%re#i&o;s pat down of Johnson did not #iolate the Dourth mendment
prohibition of unreasonable searches and sei&ures$
12$ @olice cannot search car passenger compartment if occupant is
already arrested$ 'riona v. )ant, 121 S$ Ct$ 181/ *2//1,$
@olice may search the passenger compartment of a #ehicle incident
to a recent occupant2s arrest only i* it is reasonable to belie#e that an
arrestee might access the #ehicle at the time of the search, or that the
#ehicle contains e#idence of the offense of arrest$ :ssentially, 'riona
o#erruled +e, -ork v. "elton,
1
which held when a policeman police
officer has made a lawful custodial arrest of the occupant of an
automobile, he or she may, as a contemporaneous incident of that arrest,
search the passenger compartment of the automobile$
1-$ School principal can search #ehicle on school grounds$ State v.
"est, 2/1 N$J$ 1// *2/1/,$
school administrator need only satisfy the lesser
reasonable grounds standard rather than the probable cause
standard to search a student;s #ehicle par"ed on school property$
10$ :rror by police dispatcher in in#alid arrest warrant re4uires
suppression of e#idence under New Jersey Constitution$ State v.
.an!y, 012 N$J$ Super$ 012 *pp$ 'i#$ 2/1/,$
5
%he court addressed whether e#idence found during a search
incident to the defendant2s arrest should ha#e been suppressed because
the dispatcher who incorrectly informed the arresting officer that there
was an outstanding arrest warrant acted unreasonably under the
circumstances, e#en though the conduct of the arresting officer himself
was reasonable$ %he warrant at issue, which was 1/ years old at the
time, had contained the same birth month but different birth day and
year$ %he first name on the warrant was a #ariant spelling of the
defendant;s first name$ %he court concluded that suppression was
re4uired, and re#ersed the con#iction$
15$ @assengers can be ordered out if belief of danger$ State v. Mai,
77N$J$ 77 *2/1/, *!15!/1,$
*sentence is unclear, In this case, the officers
possessed sufficient reasonable suspicion to
detain the van because it was double-parked
in violation of the traffic code. The number
of people present on the street at 4:25 a.m.
on a weekday mornin, coupled with the
report of a man with a un and the furtive
acts of the van!s occupants observed by the
police, sufficed in the areate as the
necessary facts in the totality of the
circumstances that would create in a police
officer a heihtened awareness of daner
that would warrant an ob"ectively
reasonable officer in securin the scene in a
more effective manner by orderin the
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passener to e#it the car.
In this factual conte#t, the $ourt
acknowleded that traffic stops may be
danerous encounters and that the fact that
there is more than one occupant of the vehicle
increases the possible sources of harm to the
officer. Indeed, a sinificant percentae of
murders of police officers occurs when they are
makin traffic stops.
%he same circumstances authori&e a police officer to open a
#ehicle door as part of ordering a passenger to e3it$ %hus, under
the plain #iew doctrine, the sei&ure of the weapon was
proper and sei&ure of the holster and loaded
maga&ine from the passenger were lawful as the
fruits of a proper search incident to an arrest$
1.$ Eirror obstruction should obstruct dri#er;s #iew for #iolation$
State v. "arro,, 0/5 N$J$ Super$ 5/1 *pp$ 'i#$ 2//1,$
police officer stopping a motor #ehicle for #iolating N$J$S$$
-1<-!80 must pro#ide articulable facts showing that he or she reasonably
belie#ed an object hanging from a rear#iew mirror *such as mini bo3ing
glo#es, obstructed the dri#er2s #iew$, such as mini bo3ing glo#es hanging
from mirror$
18$ @olice cannot search home without warrant$ State v. (e**erson, 77
N$J$ Super$ 77 *pp$ 'i#$ 2/1/, !1105!/.%0 */5!21!1/,$
7
)n the absence of a warrant or a recogni&ed e3ception from the
Dourth mendment2s warrant re4uirement, the police could not lawfully
enter the defendant2s home to conduct a %erry!type fris" for a
weapon*(hat does this mean+ lso needs cite info if it relates to a case,
detention and in#estigation of the defendant$ police officer2s wedging
herself in the doorway to pre#ent a defendant from closing his front
door was entry into the home$ %he police failed to show either ?hot
pursuit? e3igent circumstances or a community careta"ing e3ception
from the warrant re4uirement$ lthough the police entry was unlawful,
the defendant had no right to resist physically, and the search of his
person incident to arrest was lawful$ nd, consent to search the
defendant2s apartment, gi#en by the defendant2s wife, was tainted by the
unconstitutional police conduct and was not shown to be #oluntary$
!entencing
15$ Judge can suspend dri#ing license for traffic offense$ State v.
Moran, 0/5 N$J$ Super$ 012 *pp 'i#$ 2//1,$
%he Court rejects the constitutional challenges to N$J$S$$ -1<5!-1,
which authori&es, without standards or limits, dri#er2s license
suspensions for willful motor #ehicle #iolations$ %he license suspension
pro#ision of N$J$S$$ -1<5!-1, published in the Eotor Fehicle Code of
the New Jersey Statutes nnotated, is not >hidden,G and the defendant,
li"e all motorists, is presumed to "now the law$ %o ensure that license
suspensions meted out pursuant to N$J$S$$ -1<5!-1 are imposed in a
reasonably fair and uniform manner, so that similarly situated defendants
are treated similarly, the Court defines the term >willful #iolationG
contained in N$J$S$$ -1<5!-1, and enunciates sentencing standards to
guide municipal court and Aaw 'i#ision judges$
11$ 'efense counsel must ad#ise criminal of deportation
conse4uences$ Pa!illa v. Kentucky, 1-/ S$ Ct$ 108- *2/1/,$
@etitioner @adilla, a lawful permanent resident of the Hnited States
for o#er 0/ years, faced deportation after pleading guilty to drug
8
distribution charges in Ientuc"y$ )n post!con#iction proceedings, he
claimed his counsel not only failed to ad#ise him of this conse4uence
before he entered the plea, but also told him not to worry about
deportation since he had li#ed in this country so long$ He alleged that he
would ha#e gone to trial had he not recei#ed this incorrect ad#ice$ %he
H$S$ Supreme Court held because counsel must inform a client whether
his or her plea carries a ris" of deportation, @adilla has sufficiently
alleged his counsel was constitutionally deficient$
2/$ Dour factors re4uired for withdrawing a guilty plea$ State v.
Slater, 115 N$J$ 105 *2//1,$
Judges must consider and balance four factors in e#aluating motions
to withdraw a guilty plea$ %hey are< 1, whether the defendant has
asserted a colorable claim of innocence= 2, the nature and strength of the
defendant;s reasons for withdrawal= -, the e3istence of a plea bargain=
and 0, whether withdrawal could result in unfair prejudice to the state or
unfair ad#antage to the accused$ 'efendant Slaughter met his burden and
was entitled to withdraw his guilty plea in the interest of justice$
21$ No points on unsafe dri#ing if more than fi#e years between
offenses$ Patel v. +e, (ersey Motor Vehicle Commission, 2// N$J$
01- *2//1,$
%he No points are issued on the first two unsafe dri#ing offenses$
tic"et is no points for offense one and two$ %he third gi#es offense
results in the dri#er recei#ing four points, unless there is more than fi#e
years between the second and third offense$ %he Supreme Court held
under N$J$S$$ -1<0!18$2*e,, the e3emption pro#ision for assessing motor
#ehicle penalty points for an unsafe dri#ing offense that occurs more
than fi#e years after >the prior offense,G refers only to the most recent
preceding offense based on both a plain reading of the statute and a
re#iew of the legislati#e history$ %hus, the Eotor Fehicle Commission
correctly imposed motor #ehicle points on @atel for ha#ing a fourth
unsafe dri#ing con#iction in 2//8, only one year after the date of her
prior, third, unsafe dri#ing offense$
9
Miranda ights
22$ @olice do not always need to re!administer Eiranda warnings$
State v. +yhammer, 118 N$J$ -5- *2//1,$
6ased on the totality of the circumstances, the trial court did not err
in finding that Nyhammer "nowingly, #oluntarily, and intelligently
wai#ed his Eiranda rights under both federal and state law$ %hus, the
trial court did not abuse its discretion in admitting Nyhammer;s
confession into e#idence$ Durther, a defendant cannot assert that he or
she was denied his or her right to confrontation under the federal and
state constitutions unless he or she first attempts to cross!e3amine the
witness on the core accusations in the case$ Nyhammer had the
opportunity to cross! e3amine the child!#ictim at trial about her out!of!
court testimony implicating him in the crime but chose not to do so$
%herefore, he cannot claim that he was denied his right to confrontation$
2-$ Eiranda #iolation cannot be asserted by co!defendant$ State v.
"aum, 111 N$J$ 0/8 *2//1,$
'efendant passenger Eoore;s motion to suppress e#idence found
during a warrantless search of the #ehicle in which he was riding should
ha#e been denied because he did not ha#e standing to argue that the
dri#er;s right against self!incrimination was #iolated, and because the
search was not unreasonable$
20$ 'efendant must in#o"e right to remain silent$ "erghuis v.
Thompkins, 1-/ S$ Ct$ 225/ *2/1/,$

'efendant %homp"ins2 silence during the interrogation did not
in#o"e his right to remain silent$ suspect2s Eiranda right to counsel
must be in#o"ed ?unambiguously$?
1/
)f the accused ma"es an
?ambiguous or e4ui#ocal? statement or no statement, the police are not
re4uired to end the interrogation,
11
or as" 4uestions to clarify the
accused2s intent$
12
%here is no principled reason to adopt different
10
standards for determining when an accused has in#o"ed the Eiranda
right to remain silent and the Eiranda right to counsel at issue in
#avis$ 6oth protect the pri#ilege against compulsory self!
incrimination by re4uiring an interrogation to cease when either right
is in#o"ed$ %he unambiguous in#ocation re4uirement results in an
objecti#e in4uiry that ?a#oidJsK difficulties of proof and$$$pro#ideJsK
guidance to officers? on how to proceed in the face of ambiguity$
1-

Had %homp"ins said that he wanted to remain silent, or that he did not
want to tal", he would ha#e in#o"ed his right to end the 4uestioning$
He did neither$
Trial
25$ H$S$ Supreme Court rules lab report not admissible in criminal
case$ Melen!e%#ia v. Mass, 121 S$ Ct$ 2528 *2//1,$
%he defendant2s drug con#iction is re#ersed, where the trial court2s
admission of the prosecution2s certificates by laboratory analysts stating
that material sei&ed by police and connected to the defendant was
cocaine of a certain 4uantity$ %he H$S$ Supreme Court held it was a
#iolation of the Si3th mendment right of confrontation for a prosecutor
to submit a chemical drug test report without the testimony of the
scientist$

"ndnotes
1$ 110 N$J$ 50 *2//5,$
2$ -01 N$J$ Super$ 005 *pp$ 'i#$ 2//1,$
-$ 12- N$J$ 1, 1/8!/1 *1111,$
0$ 115 N$J$ 105 *2//1,$
5$ N$J$S$$ -1<0!5/$2$
.$ N$J$S$$ -1<0!5/$0a$
8$ 2.2 N$J$ Super$ -85 *pp$ 'i#$ 111-,$
5$ 251 N$J$ Super$ 5/2 *pp$ 'i#$ 1115,$
1$ 05- H$S$ 050 *1151,$
1/$ #avis v. Unite! States, 512 H$S$ 052, 051$
11$ /bi!$
11
12$ /!., at 0.1!0.2$
1-$ #avis, supra, at 055!051$
#enneth $erca%%en is a trial attorney o* Kenneth Vercammen 0
'ssociates, PC, locate! in $!ison. .e ,as the +e, (ersey State "ar1s
Municipal Court 'ttorney o* the -ear 2334 an! is past presi!ent o* the
Mi!!lese5 County Municipal Prosecutor6s 'ssociation.
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