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Every New Jersey resident knows about the importance that driving plays in everyday life in the State.  Free and easy access to a car is a prerequisite to many daily activities.  At the same time, motor vehicle infractions are a common occurrence in the State.  Most New Jersey drivers will receive a motor vehicle summons for a moving violation, and be required to appear in a New Jersey Municipal Court, at some point during their driving career.  Careless driving is one of the most common moving violations in New Jersey.  A conviction for this offense will, at a minimum, result in a charge of two points against a license, as well as the imposition of fines.  Depending upon the facts and circumstances of the case, a Municipal Court judge can also impose a license suspension and jail time in a careless driving case.  In the recent decision of State v. Palma, decided September 30, 2014, the Court outlined the factors that municipal judges are supposed to use in sentencing a driver convicted of careless driving.  In light of the frequency with which careless driving summonses are issued, every New Jersey driver should have some familiarity with these factors.

First, the Court found that careless driving is a motor vehicle, as opposed to a criminal, offense.  Accordingly, sentencing factors outlined in the State’s Criminal Code and/or used in criminal cases cannot appropriately be adapted to careless driving cases.  Thus, the Court held that careless driving sentences should be guided by factors used in motor vehicle cases, and/or those outlined in the State’s Motor Vehicle Code.

As to the specific factors to be used in careless driving cases, particularly those in which the Municipal Court judge is contemplating a license suspension or custodial term, the Court recalled the case of State v. Moran, a reckless driving case.  Although reckless driving is a different offense, the Court found that the sentencing factors outlined in Moran could be used to channel the wide sentencing discretion that Municipal Court judges have in careless driving cases. Continue reading ›

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Earlier this year, the US Supreme Court handed down its decision in Paroline v. United States.  The decision instructs district courts to adopt a common sense approach in computing restitution awards in child pornography cases.

Paroline pleaded guilty to possessing images of child pornography downloaded from the internet, which included two of the victim identified only as “Amy”.  Images of Amy were circulated on the internet, and were available to, and downloaded by, any number of unknown and/or unidentified individuals in addition to Paroline.  Amy sought full restitution from Paroline, consisting of $3 million in lost income and $500,000 in future treatment and counseling costs.  The district court declined to award restitution, concluding that the Government failed to meet its burden of proving what portion of the full amount of losses, if any, was caused by Paroline’s offense.  The Fifth Circuit Court of Appeals then ruled that the applicable statute did not limit the amount of the restitution award to losses caused by any particular defendant, and that each defendant who had Amy’s images was liable for her entire loss.  Thus, Paroline was on the hook for $3.5 million in restitution for possessing two images of Amy downloaded from the internet, notwithstanding the fact that these images circulated freely on the web, and had been downloaded by any number of viewers to whom he had no connection.

The Supreme Court found correctly that under the circumstances, it was inappropriate to saddle one individual who had only two images with the entire award.  First, the Court found that under the applicable statute, restitution was proper only to the extent that the defendant’s offense conduct caused the victim’s losses.  Further, the Government has the burden of demonstrating the amount of that loss.  Moreover, the Court found that victims in “CP” cases should be compensated and defendants must account for the impact that their conduct has on the victim but, at the same time, defendants should be liable only for the consequences and gravity of their conduct, and not the conduct of others. Continue reading ›

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The New York Times recently published an article entitled “Final Word on U.S. Law Isn’t:  Supreme Court Keeps editing.”  (5/24/14)  Although it appears in the ostensibly “popular” press, every attorney needs to read this article and consider what it means for their practice.

Everyone relies heavily on Supreme Court opinions.  If we know that a new decision is due on an issue relevant to one of our cases, we almost instinctively defer action if possible to see whether the Court’s pronouncement will affect our strategy.  When these opinions appear, we all spend time pouring over them, because every word matters.  Anything thing the Court says – no matter how seemingly minor or trivial – can have a far-reaching effect on a particular case, area of law, or the legal system.

The problem is that there are actually several “generations” of Supreme Court opinions, and only the last version may truly be termed “final”.  The first version is the “bench” opinion, which becomes available when a new decision is announced.  The second version is the Slip Opinion, which appears on the Court’s website.  The third version is a softcover print, which is followed by the “official” version that appears in the United States Reports. Continue reading ›

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On June 25, 2014, the US Supreme Court released its decision in Riley v. California and the companion case of US v. Wurie.  The Court held that the police may not search digital information on a cell phone that was seized from an individual in reliance on the “search incident to arrest” exception to the warrant requirement.

The Court began its analysis by recalling basic principles of search and seizure, recalling immediately that the touchstone of our Fourth Amendment jurisprudence is “reasonableness”.  This generally means that the police must obtain a warrant from a detached and neutral judicial officer before conducting a search.  Warrantless searches are reasonable only if they fall within a specific exception to the warrant requirement.  The Court also discussed the history and development of search-incident-to-arrest as reflected in various cases including Chimel, Robinson and Gant.  Against this backdrop of familiar concepts, the Court took up the question presented by Riley and Wurie, which is the reasonableness of a warrantless search incident to a lawful arrest when the subject of a search is the contents of a cell phone.

First, the Court considered the two primary concerns for warrantless searches incident to arrest raised in Chimel, which were officer safety and destruction of evidence.  As to officer safety, the Court observed that digital data stored on a cell phone cannot be used as a weapon to harm officers, or to effect an escape.  Officers can examine the physical phone to see if it contains something that could be used as a weapon (e.g., a hidden razor blade), but could then secure the phone and refrain from further search activities until a warrant is obtained.  As to destruction of evidence, the United States and California both argued that cell phone data is subject to remote “wiping” (a phone connected to a wireless network receives a signal that erases stored data), and “encryption”, (a security feature that locks the phone and causes the data to remain encrypted until released with the correct password).  In rejecting these concerns, the Court observed that there was nothing before it indicating  that these issues were prevalent, and that there were other ways to address them.  For example, a phone could be disconnected from a wireless network, or placed in a commonly available aluminum foil bag that would inhibit the necessary transmissions (already in use by several police departments).  If the phone is unlocked when it is discovered, it also may be possible to disable its locking feature. Continue reading ›

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In Atkins v. Virginia, the US Supreme Court held that the federal Constitution barred the execution of defendants with intellectual disabilities.  Based upon Atkins, Freddie Lee Hall moved before the Florida courts for an order vacating his capital sentence because he had an IQ test score of 71.  By and through his Motion, Hall sought, among other things, to present evidence of his intellectual disability.  Florida law mandated, however, that capital defendants could not present such evidence unless they had an IQ test score not exceeding 70.  Hall was precluded from presenting his evidence because his IQ exceeded the 70-point cutoff, albeit by one point.  The Florida Supreme Court rejected his appeal, finding that the State’s 70-point threshold was constitutional.

The US Supreme Court found Florida’s 70-point cutoff to be unconstitutional.  The Court began by observing that justice must be tempered with humanity and decency, and that no legitimate penological purpose is served by executing someone who has an intellectual disability.  Although defendants with intellectual disabilities who meet the legal requirements for criminal responsibility can be tried and punished, they cannot, consistent with Atkins, receive the law’s most severe sentence.  Against this backdrop, the Court began by noting that “[t]he question this case presents is how intellectual disability must be defined in order to implement these principles and the holding of Atkins.”  The Court based its response to this question largely upon the work of experts in the field of IQ testing, and upon a survey of State laws addressing this issue.

A review of the available expert material revealed that Florida’s 70-point cutoff disregarded established practice in two ways.  First, it viewed an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, while experts typically considered other evidence of the defendant’s abilities.  Further, the statutory cutoff relied upon the IQ score as a precise measurement, while the experts in the field viewed it as imprecise. Continue reading ›

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The New Jersey Supreme Court recently decided two cases that comment on the United States Supreme Court’s decision in Fernandez v. California.  These cases are important to understand the latest New Jersey developments in the important area of consent searches,  and should be read carefully by all defense attorneys.

State v. Michael Lamb relies heavily upon Fernandez to validate a consent search.  Pennsville police were investigating a shooting in a particular part of town, and their investigation eventually led them to Lamb’s home.  A detective came to the front door, and Lamb’s stepfather emphatically instructed him to leave the property.  Lamb’s girlfriend then came to the door, and the police took her by her arm and removed her from the house while Lamb’s father continued yelling at them to leave.  The girlfriend told the police that Lamb was in the house hiding under a bed.  Lamb’s stepfather eventually left the home, and the police arrested him and removed him to a “safe area”.  Lamb’s mother then insisted that he leave the house.  He did so, and was arrested.

The police then approached the entrance and spoke with Lamb’s mother, who ultimately signed a consent-to-search form and guided the officers to the room that Lamb occupied when he stayed at the house.  There the officers located a handgun and a spare magazine.  At a motion hearing, the mother testified that she consented to the search because the police threatened her.  She testified further that she was upset because one of her other children was distraught, and because her son’s behavior had brought the police to her home.  She was also concerned that the police would tear her house apart while searching it.  Thus, the record revealed serious issues concerning the circumstances under which the police obtained her consent.  Nevertheless, the motion court rejected her testimony, credited the officer’s version of events (which apparently asserted that the officers’ conduct was not threatening or coercive, and that appropriate procedures were followed), found that the mother’s consent was knowing and voluntary, and denied suppression. Continue reading ›

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Michael McGovern applied for a Firearms Purchaser Identification Card (“FPIC”) and Handgun Purchase Permit (“HPP”) in Jersey City.  McGovern completed all of the standard application forms required by the New Jersey State Police.  Apparently, the State Police forms, which are required and authorized by statute, were not sufficient for the Jersey City Police Department (“JCPD”).  JCPD also asked him to fill out its own “Firearms Applicant Questionnaire”, as well as three other forms created by the JCPD Firearms Licensing Unit.  McGovern refused to complete the additional JCPD forms.  He was also asked to provide additional information concerning three Florida arrests that occurred 10 or more years ago, but did not do so.  JCPD disapproved McGovern’s application, and he requested a hearing in the Law Division of the Superior Court.  (Incidentally, JCPD was required by statute to act upon the application within 30 days.  It took the department five months to notify McGovern that he was denied.)  The Law Division refused to grant McGovern’s application, and he appealed.

On appeal, McGovern argued, among other things, that JCPD was expressly precluded by the gun permit statute from demanding information that was not required by applicable law.  As to this issue, the Appellate Division noted that the JCPD forms were problematic because they required substantially more information that that called for by the applicable statute and the State Police Forms.  The JCPD “Firearms Applicant Questionnaire” sought the applicant’s auto plate number, previous addresses, previous employer, as well as the names and ages of all people residing in the applicant’s household.  The Appellate Division observed that none of these items were required by the gun permit statute or the State Police forms.

Another JCPD form entitled Firearms Permit Applicant Domestic Violence Disclosure Form” asked whether the applicant, or any member of the applicant’s household was previously or presently the subject of a domestic violence complaint or restraining order.  The statute and State Police form asks only whether the applicant is currently subject to a restraining order, and whether the applicant has had a weapon seized because of domestic violence.  Further, the JCPD “Authorization Waiver to Release Information” requests the applicant to authorize the release of all information to the police, and to release all persons from any liability that may result from furnishing that information.  The statute only requires the applicant to waive the right to confidentiality relating to institutional confinement.  There was also an “Information Firearms Permit Recipients” form that required the applicant to acknowledge a series of legal statements pertaining to gun ownership. Continue reading ›

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Two recent decisions from the United States Court of Appeals for the Ninth Circuit send conflicting messages on gun rights.

In the earlier case, San Diego County required applicants for a concealed carry permit to show good cause for carrying a concealed weapon.  It was the County’s position that a generalized need for personal safety did not satisfy this requirement.  In February of this year, the  Ninth Circuit Court of Appeals found that the County’s policy abridged the right to bear arms recognized by the United States Supreme Court in the 2008 case of District of Columbia vs. Heller.  Heller focused on an individual’s right to keep and bear arms in their home for personal protection.  In the San Diego case, the Ninth Circuit built upon this and found that the right to keep and bear arms in self-defense “could not rationally be limited to the home.”  Accordingly, the Court found that a generalized need for self defense outside the home satisfied the good cause requirement, and rejected the County’s contrary position.

Many gun rights advocates view this as a major victory, at least in part because the decision comes from a Court that has historically been largely hostile to gun rights.  However, the Ninth Circuit’s decision is not necessarily a significant blow to unreasonable gun control regulations.  States and counties could satisfy the requirements of the Court’s decision by accepting that a generalized need for self defense satisfies the good cause requirement while, at the same time, enacting any number of factors that would automatically disqualify individuals from obtaining concealed carry permits.  This approach would effectively accept the proposition that a generalized need for self defense constitutes good cause for a concealed carry permit, but still allow the authorities to disqualify applicants for other purportedly unrelated reasons that would presumably be listed in the applicable State statute(s).  Such reasons could include a criminal record for an extremely minor, non-violent offense, or the proximity of the applicant’s home or workplace to a school, park, or other facility where small children congregate.

Additionally, the fight on this issue is probably not over.  The ruling runs contrary to decisions from Courts in New York, New Jersey and Maryland, but is consistent with a decision from Illinois.  Because of this conflict among the Courts and the importance of the issue, there is a strong likelihood that this case will go to the United States Supreme Court, and a final decision on the issue could still be years away.  Thus, gun rights advocates may find the Ninth Circuit case encouraging, but must also bear in mind that it probably is not the final word on the subject. Continue reading ›

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Six Passaic County residents were arrested recently and charged with staging automobile accidents.  The State is alleging that their actions defrauded two insurance companies out of approximately $78,000.00, in connection with accidents that occurred on or about April 29 2009.  According to the State, four of the six suspects were in a minivan that the driver purposely drove into another vehicle carrying the other two suspects.  The six have been charged with conspiracy, insurance fraud and theft by deception in a State Grand Jury indictment handed up on April 10, 2014.  The charges could lead to prison terms.

This is just one of many recent cases involving the New Jersey Office of the Insurance Fraud Prosecutor (“OIFP”), which was first established in 1998.  This is a special section in the New Jersey Attorney General’s Office devoted to cases involving insurance fraud.  This is not the only office dedicated to such matters.  Many – if not most or all – of the county prosecutor’s offices in the State have specialized sections devoted to insurance fraud.

A cursory review of recent insurance fraud prosecutions shows that New Jersey is serious about prosecuting insurance fraud in all of its forms: Continue reading ›

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Generally speaking, consent searches are on the long list of unwanted events that create additional hurdles to mounting an effective defense in any criminal case.  Fernandez v. California, decided by the U.S. Supreme Court on February 25, 2014, exacerbates these problems.

Fernandez, a suspect in a violent robbery was seen running into an apartment building.  Screams were subsequently heard from one of the apartments in that building.  The police knocked on the door, which was answered by Roxanne Rojas.  Ms. Rojas was battered and bleeding.  The officers asked her to step outside so that they could conduct a protective sweep.  Fernandez then came to the door and objected to their presence in the apartment.  The officers suspected that he had assaulted Rojas, removed him from the apartment, and arrested him.  He was then identified as the perpetrator of the prior robbery and taken to the police station.  An officer then returned to the apartment, asked for and received Rojas’ consent for a search, and found evidentiary items linking Fernandez to the robbery.  The trial court denied a suppression motion, Fernandez was convicted, and the California Court of Appeals affirmed.

On review, the U.S. Supreme Court recalled Shneckloth v. Bustamonte, which held that consent searches are permissible warrantless searches.  A situation where the home only has one occupant who consents to the search does not raise any issues.  The court noted further that U.S. v. Matlock held that when the premises has multiple occupants, such a search is valid even if only one occupant is present and consents, so long as that occupant has common authority over the premises.  Finally, in Georgia v. Randolph, the Court held that where a physically present occupant refuses to consent, that refusal is dispositive as to him, notwithstanding the consent of another occupant.  In the matter at bar, Rojas was the only occupant present when the subsequent request for consent was made, and the police obviously knew that Fernandez previously refused consent.  The issue was whether and/or to what extent Fernandez prior refusal, made when he was present, carried forward to the time of the subsequent police request for consent to search, when he was no longer present because of his previous arrest for the robbery. Continue reading ›

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