Friday, April 27, 2007

Open Public Records Act (OPRA) Bars $55 Fee For Edison Computer Records.

Libertarian Party of Central NJ v. Murphy 384 NJ Super. 136 (App Div. 2006).
The $55 fee charged to plaintiffs for a computer diskette containing the minutes of the township council meetings violates the OPRA. Source: 184 NJLJ 46.

Police Questioning After 911 Call Did Not Violate Miranda. State v. Boretsky 186 N.J. 271 (2006)

An individual's intentions in respect of equivocal statements about "counsel" during an emergency aid situation are not relevant for Miranda purposes. During the emergency aid response, an alleged "equivocal" reference to counsel lacks sufficient basis to tie the statement to interests the Miranda remedy was designed to protect. When the emergency ends and Miranda warnings are administered, we hold that the administration of the warning satisfies Miranda

Co-tenant Can Object to Search Even if Other Occupant Consents. Georgia v Randolph 126 S. Ct. 1515; 164 L. Ed. 2d 208

A physically present co-occupant's stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him. A disputed invitation, without more, gives an officer no better claim to reasonableness in entering than the officer would have absent any consent. Disputed permission is no match for the Fourth Amendment central value of "respect for the privacy of the home," Wilson v. Layne, 526 U.S. 603, 610, 119 S. Ct. 1692, 143 L. Ed. 2d 818, and the State's other countervailing claims do not add up to outweigh it.

Suspended Jail Sentence Permitted in Juvenile Cases. In the Interest of M.C. 384 N.J. Super. 116 (App Div. 2006)

A Family Court judge imposed suspended sentences in three separate, unrelated juvenile cases involving defendants M.C., M.P., and S.J. The State contended that the sentences imposed are illegal. The Code of Juvenile Justice, N.J.S.A. 2A: 4A-20 to -91 (the Code), should be interpreted to permit suspended sentences. The Code is silent on the subject of suspended sentences. Nevertheless, the court concluded that its provisions are sufficiently flexible to permit our courts to impose suspended sentences as a viable disposition, given its fundamental rehabilitative and penal objectives.

Mandatory 180 Days in Jail For 3rd Offender DWI. State v Luthe 383 N.J. Super. 512 (App Div. 2006)

N.J.S.A. 39:4-50(a)(3) does not authorize non custodial alternatives to the mandatory 180 days confinement, whether that confinement be served entirely in jail or partially in an inpatient facility. There is no statutory authority for work release programs, out-patient treatment, or the like as an alternative

In DWI State Not Required to Prove Defendant Advised of Independent Testing. State v Howard 383 N.J. Super. 538 (App Div. 2006)

The State in a DWI case is not required to prove that a defendant has been advised of his or her right to independent testing pursuant to N.J.S.A. 39:4-50.2(c) and (d) in order to sustain a conviction of a per se violation under N.J.S.A. 39:4-50(a).

Strip Search Improper. State v Harris 384 N.J. Super. 29 (App Div. 2006)

Police conduct up in the seizure of the baggies from defendant's mouth was lawful, but that the strip search at the police station was unreasonable and lacking in probable cause.

Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or immine

imminently threatened with such injury Brigham City v Stuart 126 S.Ct. 1943 (2006)

Responding to a 3 a.m. call about a loud party, police arrived at the house in question, heard shouting inside, proceeded down the driveway, and saw two juveniles drinking beer in the backyard. Entering the yard, they saw through a screen door and windows an altercation in the kitchen between four adults and a juvenile, who punched one of the adults, causing him to spit blood in a sink. An officer opened the screen door and announced the officers’ presence. Unnoticed amid the tumult, the officer entered the kitchen and again cried out, whereupon the altercation gradually subsided. The officers arrested respondents and charged them with contributing to the delinquency of a minor and related offenses.

The US Supreme Court held: The officers’ entry here was plainly reasonable under the circumstances. Given the tumult at the house when they arrived, it was obvious that knocking on the front door would have been futile. Moreover, in light of the fracas they observed in the kitchen, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone unconscious, semiconscious, or worse before entering. The manner of their entry was also reasonable, since nobody heard the first announcement of their presence, and it was only after the announcing officer stepped into the kitchen and announced himself again that the tumult subsided. That announcement was at least equivalent to a knock on the screen door and, under the circumstances, there was no violation of the Fourth Amendment’s knock-and-announce rule. Furthermore, once the announcement was made, the officers were free to enter; it would serve no purpose to make them stand dumbly at the door awaiting a response while those within brawled on, oblivious to their presence.

Illegal alien status can factor to deny PTI. State v. Liviaz __ N.J. Super. __ (App. Div. 2007)

Although PTI may not be denied solely because a defendant is an illegal alien, it can be a relevant factor, and in both of these cases defendant's illegal status plus other facts justified the prosecutor's rejection of defendant's application for admission to the PTI program. Judgments of the trial court therefore reversed.

Two-stage interrogation not objectionable. State v. O'Neill 388 N.J. Super. 135 (App. Div. 2006)

The court reject defendant's claim that the two tape-recorded statements he made to the police should have been suppressed because they were the product of a two-stage interrogation technique (question-first, warn-later) found to be improper by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).

Crawford case requires Witness must appear in court to testify. State v Buda __ N.J. Super. __ (App. Div. 2006) Appellate Division, A-4778-04T4

An excited utterance made by a child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis v. Washington, __ U.S. __, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

Saturday, April 07, 2007

1 Nurse may be required to testify in DWI 02-09-07 State of New Jersey v. Robert C. Renshaw A-0712-05T1

1 Nurse may be required to testify in DWI 02-09-07 State of New Jersey v. Robert C. Renshaw A-0712-05T1
The Court that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions.