Articles Posted in Uncategorized

At the beginning of the COVID-19 crisis, the New Jersey courts were all but closed.  Slowly, the Courts began to resume operations with proceedings being conducted virtually via Zoom and Microsoft Teams.  The COVID-19 experience introduced these virtual tools into the courts, and they still remain in use on a fairly wide scale.  Many Superior Court matters are still being heard via Zoom or Teams, and our trial judges have been given a fair amount of discretion to decide when a matter can be heard virtually.  The majority of municipal court matters are being heard via Zoom.  It appears that we now have a hybrid system which includes virtual and live proceedings as judges, attorneys and parties have all realized that virtual platforms can be used to make our courts run more efficiently.  However, our courts have also found that there are some proceedings (other than trials) that simply cannot be conducted via Zoom.

Our Appellate Division recently considered the limits of Zoom proceedings in State v. Lansing (A-1592-23, 10/3/24).  There, the defendant moved for an order allowing his expert to testify remotely at a pre-trial evidentiary hearing, and at trial.  The subject of the testimony was photogrammetry, which is a scientific field involving the use of photography in surveying and mapping to measure distances between objects.  The experts were also expected to testify concerning forensic video analysis, bullet trajectory analysis, and related subjects.  The testimony was obviously highly technical, and was very significant since it went to the admissibility of the State’s evidence at trial and the identity of the defendant as the perpetrator of the underlying offenses.  Prior to being retained, the defense expert informed counsel that he would have to testify remotely at any pre-trial hearings and/or at trial, both because of personal health issues and the fact that he was the primary caregiver for his seriously ill spouse.  The expert lived in New York State, approximately 1 1/2 hours from Court.  The State refused to consent and opposed the defendant’s motion.

The Trial Court found that the expert testimony at issue went to the heart of the case since it concerned issues of admissibility and identification evidence.  The testimony would also have a significant impact on the case since it went directly to whether or not the State’s expert testimony was admissible at trial, as well as its reliability.  Additionally, the testimony would be very technical and heavily disputed.  As such, the credibility of the witnesses and an assessment of their knowledge, skill and experience would be at issue, and virtual testimony would make such a determination very difficult both for a judge acting as a factfinder at a pretrial hearing and a jury of lay persons at trial.  The trial court also anticipated extensive cross-examination, which could be hindered by a remote appearance.  Further, the trial court found that an in-person appearance would not result in an unreasonable financial burden or any undue delay since the defense expert lived relatively close to the courthouse.  Moreover, the defense expert informed counsel that his testimony would have to be remote prior to his retention in the case.  Thus, counsel could not claim that they were surprised by this issue.  Finally, any health-related concerns that the defense expert had could be addressed by reasonable accommodations such as masking, clear screens and social distancing.  Against this backdrop, the trial court denied the defense motion to allow its expert to testify remotely.

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Most of our firearms clients are concerned with appealing a decision of a local police department denying the issuance of a Firearms Purchaser Identification Card or handgun purchase permit.  Gun owners need to be aware of certain procedures in New Jersey that can be used to confiscate weapons and permits already in their possession.

The Extreme Risk Protective Order Act of 2018 (the “ERPO”) allows for the confiscation of firearms and permits in certain circumstances.  This law is modeled on the procedure used to confiscate firearms in domestic violence situations.  An ERPO petition can be filed by a current or former spouse, domestic partner or civil union partner; a current or former household member; a co-parent or guardian of a child-in-common; anyone expecting a child with the gun owner; a current or former dating partner; or a member of law enforcement.   The petition needs to state why the gun owner is a threat to others or themself.  It includes questions concerning 15 risk factors.  The petition must also identify the guns at issue, and state where they are located.  The petition is filed in the Superior Court of the gun owner’s county of residence.

After filing, the person who filed the petition will be interviewed by court staff.  The first hearing should be scheduled promptly, and may be heard by either a Superior Court judge or a municipal court judge.  The purpose of the first hearing is to determine whether there exists “good cause” for removing the firearms.  If the judge determines that good cause exists, they will issue a temporary firearm removal order.    If the judge conducting the hearing was a municipal court judge who denied the petition, the person who filed the petition can request an immediate appeal with an on-call Superior Court judge.  If a Superior Court judge denies the request, the filer can then appeal to the Appellate Division of the Superior Court. Continue reading ›

New Jersey is one of the few jurisdictions that allows a criminal defendant to expunge their record.  What follows are a few basic points about expungements that a potential applicant must be aware of.

First, an expungement is a sometimes thought of as a “sealing” of a record.  This is not technically correct.  Assuming an expungement application is granted, the clerk of the court will remove the records from the court file and archive them in a different location.  The records still exist, but are no longer located at the court.  Thus, if a private employer calls to do a background check, they will be told that the court has no record of criminal activity for that person – the court has no record because the record is no longer onsite.  The record has, however, not been destroyed and can still come to light in certain situations other than those involving private employers.  One of the most common is in an application for a gun permit.  Expunging a criminal record may increase the likelihood that it will not impede the issuance of a gun permit; however, the local police department will still learn of the expunged record when it reviews the application.  (While it is true that the current form of gun permit application asks an applicant to disclose prior cases that have not been expunged, the police will still learn of the expunged case during the review process.)  The same will probably be true of most State-issued licenses.    Accordingly, the best course of action for someone applying for a State-issued license may be to disclose the prior record if specifically asked about it, regardless of the fact that the order granting the expungement allows the applicant to say they have no criminal record.  Questions concerning specific licenses should be directed to a knowledgeable attorney.

The key to the expungement process is notice.  After the application is filed with the court, the court will issue an order setting a hearing date.  Prior to that date, the application must be sent by certified mail to various law enforcement agencies, who then have the opportunity to object to the expungement.  The court will hold a hearing on the hearing date if an objection is filed.  Barring any objection, the expungement should be granted.  Once granted, the order, as entered by the court, is then sent by certified mail to the same law enforcement agencies which will, in turn, update their records concerning the expunged matter.

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Megan’s Law registrants must remain offense-free for 15 years following their conviction for the offense underlying their registration requirement.  The New Jersey Supreme Court recently gave some important guidance concerning what qualifies as a conviction for Megan’s Law purposes.

When he was fifteen years old in 1999, J.A. was adjudicated delinquent of aggravated sexual assault and endangering the welfare of a child, and was then required to register pursuant to Megan’s Law.  In 2000 and 2001, J.A., while still a juvenile, J..A. was adjudicated delinquent of receiving stolen property and second-degree robbery, respectively.  He served four years at a juvenile facility for the robbery charge, was released in 2004, and remained offense-free thereafter.  Fifteen years later, he applied to terminate his Megan’s Law registration obligation, but was denied because the trial court found that he did not remain offense-free after his original juvenile adjudication, which the trial court viewed as a conviction.  The Appellate Division affirmed.

Everyone agreed that J.A. was not a danger to the community, and therefore satisfied the second prong of the Megan’s Law removal test.  The issue was whether or not the original juvenile adjudication that led to registration was a “conviction” for Megan’s Law purposes, and the Supreme Court found that it was not.  Thus, because J.A. was not “convicted” of an offense in 1999, his subsequent juvenile adjudications could not bar removal.

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Most New Jersey drivers think that there is only way way for the State to prove that someone was driving while intoxicated/driving under the influence.  There are actually several ways for the State to establish its case, and drivers should be aware of each of them.  What follows is a very brief description of the different methods that the State can use to support these charges:

Field Sobriety Tests – These include a series of physical tests that an arresting officer will administer at the scene.  They include asking the driver to stand and touch their nose; walk on a straight line with the toe of one foot touching the heel of the other, then turning and walking again in a straight line in the same manner; or standing on one leg for a period of time.  The physical movements in each of these tests are actually more complicated that those described here.  Drivers should note, however, that these tests are administered in virtually every DWI traffic stop.  The manner in which these tests were given may be challenged depending upon the terrain at the test site, any physical disabilities the driver may have had at the time, the manner in which the officer administered the tests including, without limitation, the nature of the instructions given to the driver, and other factors.  Videos taken with a body camera or dash-mounted camera should be produced with the discovery so defense counsel can determine if there were any test-related flaws in the State’s case.

Breathalyzer – This is probably the best known test.  It is administered at a police station, typically after field sobriety tests have been administered at the scene and the driver has been arrested for suspected DWI based upon their failure to complete the field sobriety tests in an acceptable manner.  The driver will be instructed to blow into a tube and the breathalyzer machine will take a reading of their blood alcohol level based upon their breath.  The breathalyzer may be subject to attack on several fronts.  The officer administering the tests must be qualified to do so, and must be able to show that their qualifications are supported and documented by current training.  The driver must sit for a period of time to allow stomach contents to settle before the test is administered.  The breathalyzer machine must be in good working order, and the chemicals inserted into the machine for testing purposes must be of relatively recent vintage.  In addition to the testing officer’s current credentials, the State must provide documentation concerning the machine’s functioning and repair history, and the age of the chemicals used, as part of discovery.

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Earlier this year, our Supreme Court Ruled on a defendant’s ability to challenge the search and seizure of abandoned property.  In State v. Gartrell, an individual at Penn Station in Newark reported to New Jersey Transit police officers that the defendant had punched him.  The officers then spoke to the defendant, who had a rolling suitcase near him.  While the officers checked for outstanding warrants, the defendant engaged in several telephone conversations with someone he called “Spoon” or “bro”.  The warrant check revealed an active warrant, and the officers told the defendant that they were going to arrest him.  The defendant asked the officers if he could first give his luggage to Spoon, and the officers responded that they were first going to take the defendant into custody.  The defendant then called out “Spoon, will you get my clothes, bro”, turned as if to be handcuffed, ran from the officers leaving the suitcase unattended on the sidewalk, and was quickly apprehended.  While some of the officers present chased the defendant, another searched the suitcase at the entrance of the station and discovered handguns, ammunition, drugs and cash.

The defendant moved before the trial court to suppress the evidence recovered from the warrantless search of the suitcase.  The trial court granted the motion, finding that the defendant did not run from the police because he wanted to discard the suitcase or relinquish his interest in it.  That court also rejected the State’s argument that the search incident to arrest exception applied.  The Appellate Division reversed, finding that the Defendant had abandoned the suitcase.

The Supreme Court affirmed the Appellate Division’s decision, noting that a defendant has no right to challenge the search or seizure of abandoned property.  The State must prove by a preponderance of the evidence that the subject property was, in fact, abandoned.  In the matter at bar, the defense was unable to confirm Spoon’s identity, or to even demonstrate that he really existed.  If Spoon did exist, he did not yet have possession of the suitcase when the police searched it.  Further, the Defendant’s act of fleeing to avoid a lawful arrest in a public place demonstrated his intention to place as much distance as possible between himself and the property he left behind, e.g., the suitcase.  He ran in a heavily trafficked area on the sidewalk outside of Newark Penn Station with no indication that he intended to return.  As such, he abandoned the suitcase in a public place.  Finally, the police were not obligated to question everyone at or near a major transportation hub to determine who, if anyone, may have had a possessory interest in a suitcase that was deliberately left behind in a public place.  Against this backdrop, the Court found that the Defendant lacked standing to challenge the search and seizure of the suitcase.

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Recent surveys show that substantial numbers of Americans have a negative view of the United States Supreme Court.  This is important because so much of the Court’s vitality stems from the extent to which people view it as a credible institution.

A report from the Pew Research Center that was issued in July, 2023, noted that as of that time, fewer than half of Americans (44%) viewed the Court favorably, while the majority of Americans (54%), viewed it unfavorably.  Interestingly, as of April, 2023, about half of Americans had a favorable view of the Court.  Thus, the Court’s favorability rating dropped significantly in a short period of time.  This drop was even more noteworthy in light of other Pew data showing that the Court’s favorability rating had declined 26 points since 2020.  Pew has been collecting polling data on the Court since 1987.  The recent surveys represented the first time that the public’s view of the Court was significantly more negative than positive.

Other survey data paints a similarly negative picture.  A Marquette Law School national survey conducted earlier this year found that 40% of Americans approved of the Court, whereas 60% disapproved.  The Marquette survey noted that approval of the Court has remained below 50% in surveys conducted since March 2022, when its approval rating was at 54%.  According to the Marquette data, the Court’s approval rating was up from a low point of 38% in July, 2022, but had declined from its July 2023 high of 45%. Continue reading ›

The Confrontation Clause requires that a criminal defendant must have the opportunity to confront and cross-examine the witnesses against them at trial.  In State v. Harrell, decided earlier this year, the issue before the Court was whether admitting a child’s entire videorecorded statement at trial violates a defendant’s confrontation clause rights if the child testifies at trial that they can only recall one incident of sexual assault described in the statement.

In March, 2016, when the child was eight years old, she disclosed to a detective during a videorecorded interview that the defendant, who was her music teacher, repeatedly touched various parts of her body during school hours.  The child also stated that the defendant placed her hand on his private parts over his clothing.  Defendant was subsequently indicted for sexual assault, child endangerment and official misconduct.

The trial court originally granted the State’s motion to admit the child’s entire statement, finding that it was trustworthy and the child would testify at trial.  However, while preparing for trial in 2022, the child could not remember most of the events she described in her statement six years earlier.  She apparently remembered the incident where the defendant put her hand on his genitals, but could not recall other incidents.  The trial court then granted a defense motion to limit the child’s trial testimony to the one allegation she could recall, and to redact the child’s statement to include that one incident.  According to the trial court, the child’s inability to remember the other incidents rendered her unavailable for cross-examination concerning those allegations, thereby violating the defendant’s right of confrontation. Continue reading ›

The United States Supreme Court recently issued an ethics code that is to guide the conduct of its justices.  There have been calls for the Court to issue such a set of ethics rules for some time, but recent revelations about the questionable ethical conduct of some of the justices apparently forced the Court to act.  Some of these problems included the fact that Justice Thomas’ wife worked to overturn the 2020 election just prior to the January 6 Capitol riot, and he continued to participate in cases relating to the riot and the election.  He also failed to disclose luxury travel provided by a wealthy conservative donor, payment of private school tuition for a grandnephew he was raising, a real estate deal involving the purchase of his mother’s house, and a loan that allowed him to purchase an elaborate RV.  Justices Alito and Gorsuch have also failed to disclose financial favors received from wealthy and powerful individuals with cases before the Court.

Clearly, the situation was so bad that the Court had to take some action to at least create the appearance that it could police itself.  However, there are still serious questions concerning how the new ethics code will be put into effect or enforced.  Exactly what activities would violate the ethics rules, and who would decide a violation actually occurred, also remain unclear.  There are no specific restrictions on gifts, travel or real estate deals.  In somewhat general terms, the new code cautions justices to avoid activities that detract from the dignity of their office, interfere with the performance of their official duties, reflect adversely on their impartiality, or lead to frequent disqualification.  Justices are also prohibited from allowing personal, political, or financial relationships from influencing their official conduct or judgement.  Justices are also barred from being a speaker, guest of honor, or being featured on the program, of certain fund raising events.

The new code also bars justices from speaking at events promoting commercial products or services, but includes an exception for events to sell books written by the justices themselves.  Obviously, any book deal for a US Supreme Court justice could be worth millions of dollars.  Also, any justice writing a book would have the resources of the Court to do so, including a team of law clerks to do the research and actual writing.

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Street Cop Training, a private company owned by a formed Middlesex County law enforcement officer, conducted a week-long seminar in Atlantic City in 2021.  The seminar was attended by about 1,000 officers from around the country, with about 240 of them from New Jersey.  Most of the New Jersey officers paid their attendance fee with taxpayer money.  In fact, approximately $75,000 in taxpayer funds were spent so as to allow the New Jersey officers to attend the conference.

The New Jersey state comptroller’s office recently issued a report saying that the seminar glorified violence and harassment, and normalized discriminatory behavior by police officers.  According to the comptroller’s report, the instructors taught unconstitutional police practices and promoted a warrior mentality.  Speakers at the conference included officers from the Warren Township police department, the Robbinsville Township police department and the Bergen County Prosecutor’s Office.  The officer from Warren apparently told the conference “I watched this car come off the highway, and I eye-F— the s— out of the female driver.  She doesn’t want to f— me back though.”  The Robbinsville officer showed a monkey on a screen while describing a black man during a traffic stop.  As part of his accompanying remarks, he stated “That’s not an 18-year-old kid dressed like Jesus coming eastbound out of Trenton.  That’s a 75-year-old Black man with a change in driving behavior, came into a gas station.”  The Assistant Prosecutor from the Bergen County Prosecutor’s Office thought the audience should know that “I would be remiss if I didn’t remind you or let you know that I have a 3-inch d—.”  The foregoing clearly demonstrates that this conference was a high-level police training seminar geared toward providing quality training to serious law enforcement officers who understand their societal role and seek only to discharge their duties in a Constitutionally correct manner.

The good news is that the report again focused a light on issues that have long existed in the New Jersey law enforcement community.  There are 72 police departments in New Jersey staffed by all-white officers.  108 departments in New Jersey are staffed by all male officers.  Only 11% of the New Jersey police force consists of female officers.  Clearly, New Jersey’s police force is not diverse in any meaningful way, and therefore does not at all reflect the State’s demographics.  The other good news is that the Robbinsville officer is now dealing with an internal affairs investigation as a result of the absolute filth that came out during his presentation.  At this time, it is not known if official action was taken as to the Warren officer or the Bergen County AP for their brilliant contributions to this highly sophisticated training event.

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