Friday, April 26, 2019

Violations of N.J.S.A. 39:4-97.2 will now include a $250 surcharge.

    
1. Violations of N.J.S.A. 39:4-97.2 will now include a $250 surcharge. The surcharge will be imposed
on a one-time basis in municipal court and will be collected by the court. The surcharge will be
imposed and collected in addition to any fine imposed. First and second offenses remain non-point
violations.   Approx $436

2. For motorists who are assessed 6 or more penalty points within a three-year period, there will be an increased surcharge. Such motorists will now be required to pay $150 for the first 6 points and $25 for each point beyond 6. The old surcharge was $100.
I  It is important for practitioners to remember that it is the assessment of points during a 3 year
period, not the accumulation of points, that triggers the surcharge. Thus, various annual point
credits will not affect the imposition of this surcharge.

As a result of the foregoing, a first offender charged with 39:4-97.2 may face a total cost in municipal
court of $436. (150 fine + 6 assessments + 30 costs + 250 surcharge). Also, remember, the fine
amount can be doubled in construction zones and safe corridors areas. 


39:4-97.2  Driving, operating a motor vehicle in an unsafe manner, offense created; fines; surcharge.
1.  a. Notwithstanding any other provision of law to the contrary, it shall be unlawful for any person to drive or operate a motor vehicle in an unsafe manner likely to endanger a person or property.


Thursday, April 25, 2019

39:4-81 red light ticket not Observing Traffic Signals 39:4-81 Traffic signals, observance; rule at nonoperational signals.

39:4-81 red light ticket not Observing Traffic Signals

39:4-81 Traffic signals, observance; rule at nonoperational signals.
39:4-81.  a.  The driver of every vehicle, the motorman of every street car and every pedestrian shall obey the instructions of any official traffic control device applicable thereto, placed in accordance with the provisions of this chapter, unless otherwise directed by a traffic or police officer.

b.When, by reason of a power failure or other malfunction, a traffic control signal at an intersection is not illuminated, the driver of a vehicle or street car shall, with respect to that intersection, observe the requirement for a stop intersection, as provided in R.S.39:4-144.
Points 2
39:4-81 Failure to obey traffic control device 
39:4-203
Fine or imprisonment minimum $50 max $200  court costs $33 , plus jail up to 15 days under 39:4-203 
39:4-105. Color system
Traffic signals or signal devices shall conform strictly with the provisions of this article.

A three-color system shall be used; red, amber and green. Green means permission for traffic to go, subject to the safety of others or the specific directions of an officer, official sign or special signal. Red means traffic to stop before entering the intersection or crosswalk and remain standing until green is shown alone, unless otherwise specifically directed to go by an officer, official sign or special signal. Amber, or yellow, when shown alone following green means traffic to stop before entering the intersection or nearest crosswalk, unless when the amber appears the vehicle or street car is so close to the intersection that with suitable brakes it cannot be stopped in safety. A distance of fifty feet from the intersection is considered a safe stopping distance for a speed of twenty miles per hour, and vehicles and street cars if within that distance when the amber appears alone, and which cannot be stopped with safety, may proceed across the intersection or make a right or left turn unless the turning movement is specifically limited.

All other uses of green, red, amber or yellow lights so located as to be confused with traffic signals shall be discontinued.

Tuesday, April 23, 2019

39:4-129(b) Leaving the scene of accident involving damages to attended vehicle or property Metuchen, Edison, Woodbridge & Central Jersey

 39:4-129(b) Leaving the scene of
accident involving damages to attended
vehicle or property
    First offense: Fine or
imprisonment not exceeding 30
days, or both, and suspension of
driving privileges for six months
from date of conviction
Fine $200 -$400
plus 2 NJ MVC points
plus 2 car insurance points

Subsequent offense: Fine or
imprisonment not less than 30
days nor more than 90 days, or
both, and suspension of driving
privileges for 1 year from date of
conviction
$400 $600
39:4-129, 39:4-130 Leaving Scene of Accident and Failure to Report, Car Accident

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. There is mandatory 6-month loss of license for leaving the scene. Our goal as the attorney is to negotiate with the prosecutor to reduce down to a violation with no suspension.
More info at http://www.njlaws.com/leaving_the_scene.html

39:4-129   Action in case of accident.
 39:4-129 . (a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section.  Every such stop shall be made without obstructing traffic more than is necessary.  Any person who shall violate this subsection shall be fined not less than $2,500 nor more than $5,000, or be imprisoned for a period of 180 days, or both.  The term of imprisonment required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section.
In addition, any person convicted under this subsection shall forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction for the first offense and for a subsequent offense shall thereafter permanently forfeit his right to operate a motor vehicle over the highways of this State.

(b)The driver of any vehicle knowingly involved in an accident resulting only in damage to a vehicle, including his own vehicle, or other property which is attended by any person shall immediately stop his vehicle at the scene of such accident or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene of such accident until he has fulfilled the requirements of subsection (c) of this section.  Every such stop shall be made without obstructing traffic more than is necessary.  Any person who shall violate this subsection shall be fined not less than $200 nor more than $400, or be imprisoned for a period of not more than 30 days, or both, for the first offense, and for a subsequent offense, shall be fined not less than $400 nor more than $600, or be imprisoned for a period of not less than 30 days nor more than 90 days or both.

In addition, a person who violates this subsection shall, for a first offense, forfeit the right to operate a motor vehicle in this State for a period of six months from the date of conviction, and for a period of one year from the date of conviction for any subsequent offense.

(c)The driver of any vehicle knowingly involved in an accident resulting in injury or death to any person or damage to any vehicle or property shall give his name and address and exhibit his operators license and registration certificate of his vehicle to the person injured or whose vehicle or property was damaged and to any police officer or witness of the accident, and to the driver or occupants of the vehicle collided with and render to a person injured in the accident reasonable assistance, including the carrying of that person to a hospital or a physician for medical or surgical treatment, if it is apparent that the treatment is necessary or is requested by the injured person.

In the event that none of the persons specified are in condition to receive the information to which they otherwise would be entitled under this subsection, and no police officer is present, the driver of any vehicle involved in such accident after fulfilling all other requirements of subsections (a) and (b) of this section, insofar as possible on his part to be performed, shall forthwith report such accident to the nearest office of the local police department or of the county police of the county or of the State Police and submit thereto the information specified in this subsection.

(d)The driver of any vehicle which knowingly collides with or is knowingly involved in an accident with any vehicle or other property which is unattended resulting in any damage to such vehicle or other property shall immediately stop and shall then and there locate and notify the operator or owner of such vehicle or other property of the name and address of the driver and owner of the vehicle striking the unattended vehicle or other property or, in the event an unattended vehicle is struck and the driver or owner thereof cannot be immediately located, shall attach securely in a conspicuous place in or on such vehicle a written notice giving the name and address of the driver and owner of the vehicle doing the striking or, in the event other property is struck and the owner thereof cannot be immediately located, shall notify the nearest office of the local police department or of the county police of the county or of the State Police and in addition shall notify the owner of the property as soon as the owner can be identified and located. Any person who violates this subsection shall be punished as provided in subsection (b) of this section.

(e)There shall be a permissive inference that the driver of any motor vehicle involved in an accident resulting in injury or death to any person or damage in the amount of $250.00 or more to any vehicle or property has knowledge that he was involved in such accident.

For purposes of this section, it shall not be a defense that the operator of the motor vehicle was unaware of the existence or extent of personal injury or property damage caused by the accident as long as the operator was aware that he was involved in an accident.

There shall be a permissive inference that the registered owner of the vehicle which was involved in an accident subject to the provisions of this section was the person involved in the accident; provided, however, if that vehicle is owned by a rental car company or is a leased vehicle, there shall be a permissive inference that the renter or authorized driver pursuant to a rental car contract or the lessee, and not the owner of the vehicle, was involved in the accident, and the requirements and penalties imposed pursuant to this section shall be applicable to that renter or authorized driver or lessee and not the owner of the vehicle.

Any person who suppresses, by way of concealment or destruction, any evidence of a violation of this section or who suppresses the identity of the violator shall be subject to a fine of not less than $250 or more than $1,000.

Amended 1940, c.147; 1967, c.189, s.1; 1977, c.407; 1978, c.180; 1979, c.463, s.1; 1994, c.183, s.1; 2003, c.55, s.1; 2007, c.266, s.1.

39:4-130  Immediate notice of accident; written report.
  
39:4-130. The driver of a vehicle or street car involved in an accident resulting in injury to or death of any person, or damage to property of any one person in excess of $500.00 shall by the quickest means of communication give notice of such accident to the local police department or to the nearest office of the county police of the county or of the State Police, and in addition shall within 10 days after such accident forward a written report of such accident to the commission on forms furnished by it. Such written reports shall contain sufficiently detailed information with reference to a motor vehicle accident, including the cause, the conditions then existing, the persons and vehicles involved and such information as may be necessary to enable the chief administrator to determine whether the requirements for the deposit of security required by law are inapplicable by reason of the existence of insurance or other circumstances.  The chief administrator may rely upon the accuracy of the information contained in any such report, unless he has reason to believe that the report is erroneous.  The commission may require operators involved in accidents to file supplemental reports of accidents upon forms furnished by it when in the opinion of the commission, the original report is insufficient.  The reports shall be without prejudice, shall be for the information of the commission, and shall not be open to public inspection.  The fact that the reports have been so made shall be admissible in evidence solely to prove a compliance with this section, but no report or any part thereof or statement contained therein shall be admissible in evidence for any other purpose in any proceeding or action arising out of the accident.

Whenever the driver of a vehicle is physically incapable of giving immediate notice or making a written report of an accident as required in this section and there was another occupant in the vehicle at the time of the accident capable of giving notice or making a report, such occupant shall make or cause to be made said notice or report not made by the driver.

Whenever the driver is physically incapable of making a written report of an accident as required by this section and such driver is not the owner of the vehicle, then the owner of the vehicle involved in such accident shall make such report not made by the driver.

In those cases where a driver knowingly violates the provisions of this section by failing to make a written report of an accident, there shall be a permissive inference that the registered owner of the vehicle which was involved in that accident was the person involved in the accident; provided, however, if that vehicle is owned by a rental car company or is a leased vehicle, there shall be a permissive inference that the renter or authorized driver pursuant to a rental car contract or the lessee, and not the owner of the vehicle, was the person involved in the accident, and the requirements and penalties imposed pursuant to this section shall be applicable to that renter or authorized driver or lessee and not the owner of the vehicle.

Any person who suppresses, by way of concealment or destruction, any evidence of a violation of this section or who suppresses the identity of the violator shall be subject to a fine of not less than $250 or more than $1,000.

A written report of an accident shall not be required by this section if a law enforcement officer submits a written report of the accident to the commission pursuant to R.S.39:4-131.

Except as otherwise provided in this section, a person who knowingly violates this section shall be fined not less than $30 or more than $100.

The chief administrator may revoke or suspend the operator’s license privilege and registration privilege of a person who violates this section.

For purposes of this section, it shall not be a defense that the operator of the motor vehicle was unaware of the existence or extent of personal injury or property damage caused by the accident as long as the operator was aware that he was involved in an accident.Copyright 2019 Vercammen Law

Monday, April 22, 2019

39:3-32 Replacement of lost, destroyed or defaced license plates; reissuance of surrendered plates; fees Failure to replace lost, destroyed, or defaced driver's plates

39:3-32 Replacement of lost, destroyed or defaced license plates; reissuance of surrendered plates; fees 
Failure to replace lost, destroyed, or defaced driver's plates
39:3-86 imprisonment for no more than 15 days or
fine $25- $500
     39:3-32.  If one or both license plates or one or both inserts are lost, destroyed, or so defaced that the numbers thereon are illegible, the owner of the motor vehicle for which the same were issued shall apply to the director or his representative for new plates or inserts within 24 hours of the discovery of such loss, destruction, or defacement. The application shall be made upon a form furnished by the division, on which the loss, defacement or destruction of the plate or plates, insert or inserts shall be set forth.  The application, except as hereinafter provided, shall be accompanied by a fee fixed by the director, the amount of which fee shall equal, as nearly as possible, the cost to the division of replacing the plates or inserts. Thereupon the division may cancel the original registration and shall issue to the applicant new plates or new inserts, as the case may be, and a new registration certificate, if necessary.  

   Every replacement by reason of defacement shall be by a license plate or plates of the same identifying characters as those on the plate or plates replaced.  

   When a person has surrendered license plates to the director pursuant to any law or regulation, the director may charge a fee under this section for the reissuance of the plates surrendered or the issuance of new plates, as determined by the director, in an amount set by regulation but equal, as nearly as possible, to the cost incurred by the division in reissuing or replacing the plates. 

Friday, April 12, 2019

The judge hearing the municipal court appeal “does not affirm or reverse what occurred in the municipal court” State v Kashi360 NJ Super 538, 545 (App. Div. 2004).

The judge hearing the municipal court appeal  “does not affirm or reverse what occurred in the municipal court” State v Kashi360 NJ Super 538, 545 (App. Div. 2004).
STATE of New Jersey, Plaintiff-Respondent, v. Sadegh KASHI, Defendant-Appellant.
    Decided: May 26, 2004
Timothy G. Boney argued the cause for appellant. Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney).
 We granted defendant Sadegh Kashi's petition for certification, 178 N.J. 30, 834 A.2d 404 (2003), to consider whether in a de novo appeal, a trial court may use a police officer's observations to sustain a driving while intoxicated conviction even though the municipal court found the officer's observations insufficient and convicted defendant only on the basis of Breathalyzer test results.   The Appellate Division answered the question in the affirmative and we agree.   The judgment of the Appellate Division is therefore affirmed substantially for the reasons expressed in the opinion of Judge Wefing.  State v. Kashi, 360 N.J.Super. 538, 823 A.2d 883 (2003).   We add the following.
In State v. Hessen, 145 N.J. 441, 454-59, 678 A.2d 1082 (1996), we addressed whether the ban against plea bargaining for the offense of driving while under the influence of liquor or drugs, N.J.S.A. 39:4-50(a), applied to a charge of “permitting” an intoxicated person to drive one's vehicle.   In finding that the ban applied, we stated that N.J.S.A. 39:4-50(a) includes four specific offenses:
[1] Operating a motor vehicle while under the influence of intoxicating liquor or drugs;
[2] Operating a motor vehicle with a blood alcohol concentration of 0.10% or more;
[3] Permitting another person who is under the influence of intoxicating liquor or drugs to operate a motor vehicle which one owns or has in one's custody or control;
[4] Permitting another person with a blood alcohol concentration of 0.10% or more to operate a motor vehicle which one owns or has in one's custody or control.
[Hessen, supra, 145 N.J. at 455, 678 A.2d 1082.]
 We no longer subscribe to the position that N.J.S.A. 39:4-50(a) describes four specific offenses.   Rather, we agree with the Appellate Division that N.J.S.A. 39:4-50(a) creates one offense that may be proved by alternative evidential methods.  Kashi, supra, 360 N.J.Super. at 545, 823 A.2d 883.   Our view is fortified by the sentencing provisions in N.J.S.A. 39:4-50(a), providing penalties for the “first offense,” “second violation,” and “third or subsequent violation.”  N.J.S.A. 39:4-50(a)(1)-(a)(3).   The terms “first offense,” “second violation,” and “subsequent or third violation,” refer to the single offense of driving while intoxicated set forth in N.J.S.A. 39:4-50(a).   Consequently, we hold that N.J.S.A. 39:4-50(a) is a unified offense under which a defendant can be found guilty on alternate bases.
 Defendant sought a de novo review in the Law Division, which “provides a reviewing court with the opportunity to consider the matter anew, afresh [and] for a second time.”  In re Phillips, 117 N.J. 567, 578, 569 A.2d 807 (1990) (alteration in the original) (internal quotations omitted).   The court conducting a de novo review must give due, but “not necessarily controlling, regard to the opportunity of the [municipal court] to judge the credibility of the witnesses.”  State v. Johnson, 42 N.J. 146, 157, 199 A.2d 809 (1964).   Here, the Law Division on the de novo review differed with the findings of the municipal court based on the record, but did not challenge the municipal court's credibility findings.
 In reviewing the de novo proceeding, the Appellate Division concluded that the Law Division fairly found that the evidence in the record established beyond a reasonable doubt that defendant was intoxicated when driving.  Kashi, supra, 360 N.J.Super. at 545-46, 823 A.2d 883.   We agree with that conclusion.   Further, because the de novo review did not subject defendant to a conviction after an acquittal, or to the possibility of conviction of a more serious offense, or of an offense carrying a higher penalty, we find no double jeopardy or due process violation.   See State v. Widmaier, 157 N.J. 475, 489-90, 724 A.2d 241 (1999).
 Lastly, we take this opportunity to reaffirm our prior policy decision that a defendant convicted and sentenced in a municipal court may not be subjected to a greater sentence on appeal.  State v. De Bonis, 58 N.J. 182, 188-89, 276 A.2d 137 (1971).
The judgment of the Appellate Division is affirmed.
PER CURIAM.
For affirmance-Chief Justice PORITZ and Justices LONG, VERNIERO, LaVECCHIA, ZAZZALI, ALBIN and WALLACE-7. Opposed-None.

Though bound by evidentiary record before the municipal court, the reviewing court must conduct an independent fact-finding analysis and decide its own conclusion of law. State v Ross

Though bound by evidentiary record before the municipal court, the reviewing court must conduct an independent fact-finding analysis and decide its own conclusion of law. State v Ross189 NJ Super. 67, 75 (App Div. 1983) Certif denied 95 NJ 197 (198389 N.J. Super. 67 (1983)
458 A.2d 1299
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MARIE D. ROSS, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted March 1, 1983.
Decided March 14, 1983.
*69 Before Judges MICHELS, PRESSLER and TRAUTWEIN.
Appellant filed a pro se brief.
Irwin I. Kimmelman, Attorney General of New Jersey, attorney for the respondent (George L. Schneider, Essex County Prosecutor, of counsel; Olivia Belfatto, Assistant Essex County Prosecutor, on the letter brief).
The opinion of the court was delivered by PRESSLER, J.A.D.
Defendant Marie D. Ross appeals from her conviction by the Law Division on a trial de novo of two violations of the noise *70 control ordinance of the Town of Belleville.[1] We reverse the convictions because of the egregious irregularities attending the municipal court process.
Defendant Ross and her family are next door neighbors of the Montagna family. It appears that a considerable degree of hostility had developed between the families for some months prior to the episode here in question because of the Ross' ownership of several German Shepherd dogs who were regularly let outdoors in the late night and early morning hours and who, by their loud and persistent barking, disturbed the peace of the neighborhood and frequently awoke sleeping members of the Montagna family. On the night of July 27, 1980 these hostilities apparently exploded when, so it was variously alleged, the adult Montagnas again complained to defendant's husband, who was outdoors with the dogs. Apparently some sort of fracas, at least verbal and perhaps physical, ensued, and ultimately various members of the two families signed complaints against each other in the Belleville municipal court charging each other with a variety of minor offenses.
Among the plethora of complaints then filed, and apparently thereafter filed as the interfamily enmities escalated, are the two here in issue charging defendant with violations of the Belleville noise control ordinance prohibiting "the keeping of any animal or bird which by causing frequent or long continued noise shall disturb the comfort or repose of any person in the vicinity." One complaint was sworn to by Frank Montagna and the other by his wife Rita Montagna. Each charged defendant *71 with the identical conduct allegedly constituting a violation of the ordinance, namely, "allowing her dogs to continually bark disturbing the entire Montagna family" on July 27, 1980 at 11:15 P.M. Each was captioned in the name of the respective complainant versus defendant. A summons was issued on each of the complaints. Inexplicably, both summonses were issued over the signature of the respective complaining witness. Neither was signed or issued by a judicial officer, court clerk, deputy court clerk or even a police officer.
Ultimately a trial was conducted in the Bloomfield Municipal Court, and defendant was convicted on both complaints. Sentence, although not specifically pronounced, was suspended. Defendant then appealed to the Law Division de novo and on the record pursuant to R. 3:23-8. After hearing oral argument from defendant, who appeared pro se, and from the prosecutor, the Law Division judge affirmed the convictions on the ground that
I find there's proof upon which the [municipal] judge could have based his and did base his decision to find you guilty. It's not for me to find you guilty. It's not for me to substitute my judgment for that of [the municipal judge].
On her appeal to this court defendant argues first that she was denied a fair and impartial trial by reason of "ex-parte communications" between the municipal court judge and the complaining witness. It appears, however, that the communications to which she refers consisted of a colloquy on the record between the judge and the complaining witness on a scheduled trial date on which no member of the Ross family appeared despite proper notification. The colloquy did not materially concern the merits of the pending complaints and was altogether unexceptionable. There is no merit either in this issue or in the second issue raised by defendant, namely, the claim that she was denied the right to present witnesses in her behalf. That claim apparently derives from the municipal court judge's witness sequestration order. Our review of the record persuades us, however, that there was no impingement on defendant's right to fully present her defense.
*72 The last of the issues defendant raises does, however, have substantial merit and the prosecutor so concedes. The issuance of two separate complaints and the separate convictions on each constituted an obvious violation of the constitutional guarantee against double jeopardy. There was clearly only one offense here involved and only a single violation of the ordinance, to wit, permitting the dogs to bark at 11:15 P.M. on July 27, 1980. That single offense is not multipliable by the number of people disturbed by the barking dogs. That is fundamental, and the State accordingly urges the dismissal of one of the complaints.
We cannot, however, sustain either of the convictions because of an even more basic defect in the proceedings, not raised by the parties. In our view, the issuance of the summonses here by the complaining witnesses constitutes so egregious a violation of the underlying principles of proper practice as to require the reversal of both convictions.
To begin with, we are constrained to point out that the proceedings here were quasi-criminal in nature. That fundamental predicate of these proceedings appears to have been entirely overlooked in its institution, first in the improper captioning of the complaints and summonses in the names of the respective complaining witnesses as plaintiffs and then, even more appallingly, in the issuance of the summonses on the authority of the complaining witnesses.[2]
*73 Because of the nature of the proceedings here, process was required generally to conform to the requirements applicable to indictable offenses. See R. 7:3-1. Among those requirements is the mandate that process issue only by a judge or clerk or deputy clerk of his court and only if the official issuing process is satisfied from the complaint that there is probable cause to believe that defendant has committed an offense. R. 3:3-1(a), 3:3-2. In lieu of the primary process of a warrant, a summons may issue if the official is satisfied that the accused will appear in response thereto and none of the other warrant-mandating criteria of R. 3:3-1(b) is present. The only modification in this procedure in respect of nonindictable criminal offenses within the municipal court jurisdiction is the authorization of R. 7:3-1(b), permitting a summons to be issued by a law enforcement officer where the Administrative Director of the Courts has prescribed the form of summons and complaint.
The limitation of the issuing authority to a judicial officer in the case of a warrant is a matter of constitutional imperative imposed by the Fourth Amendment, which prohibits either the arrest of the person or the seizure of property except on probable cause supported by oath or affirmation. It is also well-settled constitutional doctrine that the prerequisite probable cause determination must be made by an impartial and neutral judicial officer, including the court clerk or deputy clerk but excluding, obviously, a person who, because of his status, has an interest or bias in the matter. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Ruotolo, 52 N.J. 508 (1968). Accordingly, a warrant issued by, for example, a police officer is constitutionally defective.
The matter is somewhat different in the case of a summons because of its qualitatively different consequence vis-a-vis deprivation of freedom. A summons in lieu of warrant is *74 not, however, without consequence since it initiates the criminal process, compels appearance to answer the complaint, and may lead to the routine issuance of an arrest warrant upon the failure of appearance.[3]R. 3:3-1. While it is evidently the lesser consequential significance of a summons and the lesser consequence of matters within municipal court dispositional jurisdiction which justify the law enforcement officer exception of R. 7:3-1(b), it is the nevertheless grave import of the summons, in the structure of the criminal justice process, which requires that a probable cause determination be made as the prerequisite for its issuance as well and which also requires a strict construction of R. 7:3-1(b) to the end that an appropriate neutral official make that determination. For the determination to be made by the complaining witness and for the summons to be issued over his signature is fundamentally offensive to the most elementary notions of due process, violates the spirit if not the letter of the Fourth Amendment, and is a blatant and intolerable violation of our rules of practice. The criminal and quasi-criminal system is neither designed nor intended to provide a vehicle for the raising and settlement of purely private disputes. The process here, therefore, constituted a subversion of the basic distinction between criminal and civil justice.
We are not unaware of the provision of R. 3:23-8(c), which provides that the taking of a de novo appeal to the Law Division "shall operate as a waiver of all defects in the record including any defect in, or the absence of, any process...." It is also well settled, however, that the waiver does not apply in respect of defects of a constitutional or jurisdictional nature. See, e.g., State v. Barnes, 84 N.J. 362 (1980); State v. Gillespie, 100 N.J. Super. 71, 85 (App.Div. 1968), certif. den. 51 N.J. 274 (1968); State v. O'Keefe, 135 N.J. Super. 430 (Cty.Ct. 1975); Cranford Tp. v. Errico, 94 N.J. Super. 395 (Cty.Ct. 1967). We *75 regard the nature of the defect here as one of such substantial magnitude as to compel the inapplicability of the waiver rule.
Although we reverse the convictions on the foregoing ground, we deem ourselves obliged to comment on another serious error in these proceedings stemming from the Law Division judge's fundamental misapprehension of his function. A trial de novo by definition requires the trier to make his own findings of fact. He need, furthermore, give only due, although not necessarily controlling, regard to the opportunity of the municipal court judge to judge the credibility of the witnesses. His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function in respect of defendant's guilt or innocence. See, e.g., State v. States, 44 N.J. 285, 293 (1965); State v. Johnson, 42 N.J. 146, 157 (1964).
The convictions appealed from are reversed, the complaints against defendant dismissed and the summonses quashed.
NOTES
[1] Apparently because of a disqualification by the municipal court judge of Belleville, the matter was heard by the municipal court judge of Bloomfield. Although appellant's pro se appendix includes the text of the provision of the Belleville ordinance which she was charged with violating, the State's appendix provides the text of the Bloomfield noise ordinance, the significance of which we fail to perceive. Presenting the court with an ordinance of the wrong municipality did not facilitate our review of this matter and is only the last of the procedural anomalies in a proceeding fraught with procedural anomalies from the moment the complaint was taken.
[2] At the foot of the form of complaint is the following printed statement: "The undersigned states that he has just and reasonable grounds to believe and does believe that the person named above committed the offense(s) herein set forth contrary to law." Immediately below this legend is a signature line under which this instruction is printed: "Signature and identification of Officer (to be signed when issuing summons)" The signature line was signed by the complaining witness who thereafter also signed as the complaining witness. The accompanying form of summons bears at its foot this legend "You are notified that the undersigned will file a complaint in this court charging you with the offense(s) set forth above. The instruction under the signature line thereafter provided also reads "Signature and identification of Officer." The complaining witness signed on this line as well.
[3] We note that upon defendant's failure to appear at the scheduled hearing, heretofore adverted to, a bench warrant for her arrest was in fact issued.

State v. Johnson 118 N.J. 639, 662(N.J. 1990) Municipal appeals are heard de novo when a verbatim record of a municipal trial is available. Rule 3:23-8a. The Court must decide the case anew, giving consideration, though not necesarrilly weight, to the municipal court;s assessment of the witness’s credibility. State v Johnson42 NJ 146, 157 (1964).




State v. Johnson
118 N.J. 639, 662(N.J. 1990)
Municipal appeals are heard de novo when a verbatim record of a municipal trial is available. Rule 3:23-8a. The Court must  decide the case anew, giving consideration, though not necesarrilly weight, to the municipal court;s assessment of the witness’s credibility. State v Johnson42  NJ 146, 157 (1964). 
The opinion of the Court was delivered by POLLOCK, J.

This appeal concerns the suppression of evidence of the escape of defendant, Richard Johnson, from police headquarters and of his subsequent telephone call to the police. The Law Division granted defendant's motion to suppress. In an unreported decision, the Appellate Division reversed. We granted defendant's motion for interlocutory appeal, 117 N.J. 651, 569 A.2d 1347 (1989), and now reverse the judgment of the Appellate Division.
I
Except where otherwise indicated, the following statement is based on facts as found by the trial court or as conceded by the State. At 10:55 a.m. on July 25, 1984, Investigator Mark Prach of the Morris County Prosecutor's Office, accompanied by investigators Dempsey and Walsh of that office, and Detective Albert Stearn of the Jefferson Township Police Department, apprehended defendant, Richard Johnson, at a warehouse where he was working in Hanover Township. According to the police, defendant was not a suspect at the time, and they did not inform him of his constitutional rights. The trial court concluded, however, that from that moment "defendant was not free to leave," and that he was "in detention." The police drove Johnson in a police car to the Jefferson Township headquarters where, according to the trial court, "defendant was subjected to an unlawful investigatorial detention." As the court found, once defendant entered the detective bureau at police headquarters, "that room was as good as a cell."
When they detained Johnson, the police were aware of the following facts. Around 6:00 p.m. on July 24, the dead body of eleven-year-old Dawn Kiemel was discovered on Espanong Road in Jefferson Township. Earlier that morning at 1:01, Dawn's father had called police headquarters to report that his daughter had not returned from a carnival in the township, where she had gone with some friends. Two hours earlier, between 11:00 and 11:30 p.m., on July 23, a motorist had noticed a girl who looked like Dawn walking along Espanong Road in the vicinity where Dawn's body was discovered. About one or two hundred feet farther down the road, the motorist also noticed a black man built "like a football player," standing near a cream- or beige-colored car. Also on the evening of July 23-24, shortly after midnight, a large black man had driven his light-colored car off Espanong Road a few miles from the place where Dawn's body was found. The accident report listed the owner of the disabled vehicle as "Richard Jones," but police investigation revealed that the owner's true name was Richard Johnson, a man convicted of manslaughter in 1980 and recently placed on parole. Armed with these facts, the township and county law-enforcement officials detained defendant, who fit the description provided by the motorist and who, in fact, was the owner of the disabled car.
On arriving at police headquarters, the officials began interrogating Johnson without first informing him of his rights to counsel or to remain silent. After two hours of questioning, Stearn and Prach left the room, leaving Sergeant George Stamer to guard Johnson. With Stamer's permission, Johnson tried unsuccessfully to place telephone calls to his mother and to his girl friend. According to Stamer, Johnson then stated, "I think I better call my attorney," but when Stamer told him to "go ahead," Johnson decided he did not yet need an attorney. The trial court ruled that Stamer's failure to ascertain whether Johnson was invoking his right to counsel at this time constituted a violation of Johnson's right to counsel.
A few minutes later, while pacing back and forth, Johnson announced, "I think I'm going to leave here now." Stamer, however, told Johnson to sit down and wait for Stearn. According to Johnson, when he opened the door to leave, his way was blocked by an assistant prosecutor. The trial court found that the prosecutor, perhaps "in conjunction with one of the officers," directed defendant "back into the detective room."
On returning, Stearn read Johnson his Mirandarights for the first time and asked him to sign a written "Advice of Rights Form." Johnson refused. In response to his inquiry, Johnson was told that he was not under arrest, but that he was a suspect. To this, Johnson replied, "[s]ince I'm a suspect, then I would like to have a lawyer." Stearn, however, told him that he did not need a lawyer and asked Johnson what was he "trying to hide." When reviewing the testimony, the trial court found that defendant's reply constituted a request for counsel.
The questioning resumed. That resumption, the trial court found, constituted another violation of defendant's right to counsel.
The police, knowing that Johnson had previously been convicted for aggravated manslaughter, asked him if he had ever been arrested. Johnson replied, "I plead the Fifth. I'm not saying nothing * * *."
The trial court found that Prach treated defendant's request as if it were a joke. As the court stated, Prach "thought the defendant was joking, that I guess he thought the defendant was just making light of what you see on television or when people say `I plead the Fifth,' and Prach saw no significance to the defendant's statement that he `pleads the Fifth.'"
Rejecting Prach's testimony as lacking "any credibility," the trial court concluded:

Prach's discussion of the defendant pleading the Fifth was about as cavalier on the witness stand as though the defendant was asking him for a piece of gum. To hear and watch Prach testify as to this incident, any unknowing spectator in this courtroom could think that there was some sort of inside joke being recounted.

The court concluded: "Prach's testimony is nothing more or less than the extenuation of the course of [the] devious undoubtedly unsanctioned and most importantly unconstitutional approach he took to this case during the entire participation from the outset."
Ignoring Johnson's invocation of his constitutional rights, Prach and Stearn continued to question him. Johnson testified that in response to their statement that they knew of his manslaughter conviction, he suggested that they thought he was guilty because of his criminal record. When Stearn said, "maybe," Johnson replied, "maybe my ass. I want a lawyer."
At 4:20 p.m., after lunch and two hours of "small talk," Investigator Richard Longo of the Morris County Prosecutor's Office entered the room. He told Johnson that he was seeking warrants to search Johnson's car and trailer. According to Johnson, Longo said: "We know you killed this girl. * * * If I find what I'm looking for, I'm going for the death penalty." After Longo left, Johnson said to Stearn: "Don't you say nothing at all until I get a lawyer." The trial court found that Johnson's statement constituted another request for a lawyer.
According to Johnson, around 4:45 p.m. he observed his girl friend, Elizabeth Plant, as the police brought her to the station for questioning. At Johnson's request, Prach brought Plant into the room. As Johnson and Plant embraced, he whispered to her to "get me a lawyer" and passed her a note for his mother to the same effect.
Johnson asked for a lawyer several more times and indicated his unwillingness to continue talking. According to Johnson, Stearn assured him, "[y]ou're going to get your lawyer. We're going to get you a lawyer." Johnson testified that at another point, however, Stearn told him, "[i]f you want a lawyer, it means you got something to hide."
One hour later, when Stearn left the room at 5:50, Prach resumed questioning Johnson, without re-administering Mirandawarnings. Knowing that Johnson was on parole, Prach suggested that defendant did not want to discuss why he stopped on Espanong Road because he intended to commit a burglary. In a statement that was virtually a repetition of Prach's suggestion, Johnson responded "that [he] had stopped on Espanong Road to commit a burglary." The trial court found, "[t]he clear import of [Prach's suggestion] is that if Johnson doesn't tell about this minor crime * * * the defendant by his silence might end up getting charged and convicted of * * * the homicide of Dawn Kiemel."
Johnson testified that Stearn soon returned and informed him that he had "just called an attorney, who was on his way." Although the record does not indicate whether Stearn had in fact placed the call, no attorney ever arrived. The trial court found that Prach and Stearn then resumed questioning Johnson about the "burglary." Johnson testified that he again asked for a lawyer. To that request, Stearn replied, "[d]on't worry about it, you don't need a lawyer * * *."
At 8:00 p.m., after being in custody at the police station for eight and one-half hours, Johnson heard over the intercom that his mother was calling. Prach told Johnson that he could speak to his mother after the police spoke to her first. Johnson explained to the police that he had earlier passed to Plant a note for his mother so she would obtain a lawyer for him. The police responded by telling Johnson that "we're getting a lawyer."
In what he described as a "fired-up mood," Johnson testified that he protested: "I've been here going on nine hours, and I can't speak to my mother?" When Prach tried to resume questioning, Johnson stated that he objected: "Man, shut up. I'm not saying nothing, man. You said I can't speak to my mother. You ain't got me a lawyer. I ain't saying nothing."
Stearn left the room, and Prach, who noticed that Johnson was "getting upset," repeatedly suggested, over Johnson's denials, that he must have seen "the girl" on Espanong Road. Johnson succinctly described the ensuing events:

Then, he [Prach] says: Listen, Rich, maybe you seen something, maybe you heard something, but you don't want to tell us.


I said: Man, I am not saying nothing. Don't ask me no more, don't ask me nothing else. I keep telling you, like I said, I keep telling you not to ask me no questions, man. But you keep asking me questions.


He said: Well, I think you did it. I said: You think I did it? He said: Yeah.

And I just, boom, went through the window.
Crashing through a plate glass window one-quarter to one-half inches thick, Johnson ran into the woods and escaped. According to Johnson, "what really kicked it off" was that the police would not let him talk to his mother or have a lawyer. The trial court found that "the impetus for him jumping out of the window was that his mother had called and he wasn't allowed to speak to his mother. Within, certainly less than two minutes, three minutes, out the window he goes * * *."
Approximately two hours later, Johnson called Prach from a pay telephone, apologized for breaking the window, and stated that he hoped Prach was not hurt and would not get into trouble. When Prach told Johnson "I think you should turn yourself in," Johnson replied: "Well, once I get a lawyer, then, I'll turn myself in."
Forty hours later, accompanied by a lawyer, Johnson surrendered to the authorities at the offices of the Asbury Park Press. The police assured Johnson's lawyer, Charles Moriarty, that they would take Johnson to the Morris County jail and that they would not question him. They broke both promises. Consequently, in a separate proceeding, the trial court suppressed certain statements made by Johnson to the police as violative of his right to counsel. The suppression of those statements, like the suppression of Johnson's statements at police headquarters, is not before us on this appeal.
Concerning his escape from the Jefferson Township police headquarters, a Morris County Grand Jury indicted Johnson for escape, N.J.S.A. 2C:29-5, and fourth-degree criminal mischief, N.J.S.A. 2C:17-3, for breaking the window and fleeing from the police station. On October 10, 1984, pursuant to a plea agreement, Johnson pled guilty to criminal mischief and disorderly conduct, N.J.S.A. 2C:33-2a(2), and received concurrent sentences of nine months and thirty days, respectively.
Seven months later, on May 7, 1985, a Morris County Grand Jury indicted Johnson on five counts arising out of the death of Dawn Kiemel: knowing and purposeful murder, N.J.S.A. 2C:11-3a(1) and -3a(2); felony murder, N.J.S.A. 2C:11-3a(3); kidnapping, N.J.S.A. 2C:13-1b(1) and -1b(2); aggravated sexual assault, N.J.S.A. 2C:14-2a; and possession of a weapon with intent to use it unlawfully against another, N.J.S.A. 2C:39-4d. On May 17, the prosecutor filed a notice of aggravating factors, notifying the defendant that he would seek the death penalty.
Johnson moved to suppress the statements he had made while in custody on July 25 and 27, 1984. Finding violations of the New Jersey Constitution and of the fourth, fifth, and sixth amendments to the United States Constitution, the trial court suppressed all of Johnson's statements. The court found that Johnson was "not free to leave" when the police asked him to accompany them to police headquarters. This detention, the trial court ruled, triggered the protection of defendant's constitutional rights. The court explained "that the fourth amendment was meant to [prevent] wholesale intrusions upon the personal security of silence, whether these intrusions be deemed to be arrest or investigatory detention." Relying on Dunaway v.New York442 U.S. 20099 S.Ct. 224860 L.Ed.2d 824(1979), the court explained that " Dunawaystands for the proposition that detention for custodial interrogation, regardless of the label that is placed on it, is an intrusion on the interests protected by the fourth amendment and it will trigger the traditional safeguards against illegal arrest." Because the police had violated Johnson's fourth-amendment rights by detaining him without probable cause, the court suppressed all statements resulting from the detention.
In addition, the court ruled that the statements were inadmissible under the fifth and sixth amendments. The trial court found that Johnson had requested an attorney several times and that his right to counsel "was trampled upon and * * * disregarded as though it was some trivial request." Compounding matters, the police had questioned Johnson alone even after he had retained a lawyer. This led the trial court to conclude that the police had flagrantly and blatantly violated Johnson's constitutional rights.
The Appellate Division affirmed, holding that the trial court's decision did not apply to Johnson's telephone call to Prach after his escape. Without reaching the issue of the fourth-amendment violations, the court found that the police committed "wholesale violations of defendant's rights under the fifth and sixth amendments." The State did not seek leave to appeal.
Immediately after the trial court had suppressed his statements, Johnson filed the subject motion to prevent the State "from using, in any way, facts surrounding the defendant's departure from Jefferson Township Police Department on July 25, 1984." The trial court granted the motion, suppressing the facts of both Johnson's escape and of his telephone call. It also denied the State's motion to submit further evidence on the issue of probable cause to arrest. In reaching those results, the court held that Johnson's escape was the "fruit of the poisonous tree," because it was the "proximate result of the illegal detention." The court expressly based its ruling on the violation of Johnson's rights under the fourth amendment. Citing the refusal of the police to allow Johnson to talk with his mother about a lawyer, the court ruled that admission of the evidence would permit the police to "benefit by their own wrongdoing."
Alternatively, the court suppressed the evidence on the grounds that it would violate the plea agreement underlying Johnson's criminal-mischief and disorderly-person convictions. This ruling occurred because an issue arose about the scope of the plea bargain. The State agreed that it could not use the convictions for the purposes of impeachment, but claimed that the parties had agreed that "counsel for both sides could go into the facts of what occurred on that particular day." Although the court acknowledged that its recollection did not "vary" significantly from that of the State, the attorneys who represented Johnson at the plea hearing could not recall any such agreement. The plea agreement itself was silent. Ultimately, the court suppressed evidence of the facts surrounding the escape because that evidence would undermine the agreement not to use the convictions.
On the State's appeal, the Appellate Division reversed the suppression of the evidence. Initially, it found "that the trial judge had misinterpreted the plea agreement." According to the Appellate Division, "the agreement shows that defendant waived his right to contest the admissibility of the escape evidence since the terms of the plea bargain `must be meticulously carried out.'" (citation omitted.)
The court noted that its earlier decision upholding the suppression of Johnson's statements was based on the violation of his fifth- and sixth-amendment rights. Without expressly identifying the constitutional provision under which it was analyzing those rights, the court apparently adopted the fourth-amendment analysis employed by the trial court.
Although critical of the police conduct, the court concluded that "other factors * * * weigh against exclusion." It held that "the escape and resulting telephone call were sufficiently insulated from the illegal detention as to avoid the initial taint."
Finally, the court affirmed the order barring the State from adducing further evidence to establish probable cause to arrest. The State, however, did not seek leave to appeal from that order.
Judge Shebell filed a partial dissent. He found that Johnson had not waived his right to contest the admissibility of the facts surrounding the escape. In his view, the State merely had reserved its right to try to introduce the underlying evidence. He found that the plea agreement prevented the State from introducing evidence of the convictions, but not of those facts. Although he agreed with the majority in rejecting the trial court's "fruit of the poisonous tree" analysis, he favored a remand for further inquiry whether the escape was "the product of the illegal activity of the police" or of Johnson's independent, voluntary act. He agreed with the majority that the post-escape telephone call was admissible.
II
The prohibition of murder and other violent acts reflects society's concern for protection against criminal behavior. Ordinarily, the public relies on law-enforcement officers to prevent such behavior. Consequently, those officers are entrusted with powers not possessed by the general public, such as the power to arrest and interrogate. When exercising those powers, however, law-enforcement officers are circumscribed by cherished constitutional rights of every citizen. Those rights include freedom from arrest or seizure without probable cause, U.S.Const.amend. IV; N.J. Const. of 1947art. I, § 7; the right to counsel, U.S. Const.amends. V VI; N.J. Const. of 1947art. I, § 10; and the right to remain silent when accused of a crime, U.S. Const.amend. V; cf. State v. Hartley103 N.J. 252, 281511 A.2d 80 (1986)(recognizing common-law privilege against self-incrimination). Police may not arrest someone on a mere whim or suspicion. Neither may they coerce, either through physical abuse or oppressive interrogation, someone to testify involuntarily against himself or herself. The right to counsel, moreover, assures a citizen, who may be unfamiliar with the intricacies of criminal procedure, of access to legal advice from the moment of arrest. As a result, a violation of those rights is not a mere technicality, but a breach of the basic compact between the people and the state.
To redress such violations, evidence obtained in violation of a defendant's federal- or state-constitutional rights is generally excluded as proof against the defendant. Edwards v. Arizona,451 U.S. 477, 485101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 387 (1981) (fifth-amendment right to counsel); Michigan v.Mosley,423 U.S. 96, 104,96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321 (1975) (fifth-amendment right to remain silent); Miranda v. Arizona,384 U.S. 436, 47986 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966) (both fifth-amendment right to remain silent and right to attorney during custodial interrogation); Massiah v. United States377 U.S. 201, 20684 S.Ct. 1199, 1203, 12 L.Ed.2d 246, 250 (1964) (sixth-amendment right to counsel); Weeks v. United States232 U.S. 383, 39334 S.Ct. 341, 344, 58 L.Ed. 652, 656 (1914) (fourth-amendment right to be free of unreasonable searches and seizures); State v. Novembrino, 105 N.J. 95, 157, 519 A.2d 820 (1987)(article I, section 7 right to be free of unreasonable searches and seizures); Hartley, supra103 N.J. at 282,511 A.2d 80(state common-law right to freedom from compelled self-incrimination). The purpose of the exclusionary rule is to deter police misconduct and to preserve the integrity of the courts. Brown v. Illinois422 U.S. 590, 59995 S.Ct. 2254, 2259, 45 L.Ed.2d 416, 424-25 (1975); Wong Sun v.United States371 U.S. 471, 48683 S.Ct. 407, 416, 9 L.Ed.2d 441, 454 (1963); State v. Barry, 86 N.J. 80, 87, 429 A.2d 581cert. denied, 454 U.S. 1017, 102 S.Ct. 553,70 L.Ed.2d 415(1981).
For seventy years, the United States Supreme Court has recognized that "[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely the evidence so acquired shall not be used before the Court but that it shall not be used at all." Silverthorne Lumber Co. v.United States251 U.S. 385, 39240 S.Ct. 182, 183, 64 L.Ed. 319, 321 (1920). Although usually applied to evidence obtained as the result of illegal searches and seizures, this rule also applies to evidence obtained in violation of a defendant's fifth- and sixth-amendment rights. Nix v. Williams467 U.S. 431, 442104 S.Ct. 2501, 2508, 81 L.Ed.2d 377, 386 (1984) (sixth-amendment right to counsel); see also Kastigar v.United States406 U.S. 441, 45392 S.Ct. 1653, 1661, 32 L.Ed.2d 212, 222 (1972) (fifth-amendment prohibits both use and derivative use of compelled testimony under grant of immunity); cf. Oregon v. Elstad470 U.S. 298, 308105 S.Ct. 1285, 1292, 84 L.Ed.2d 222, 231 (1985) (stating in dictathat this rule applies to violation of any of defendant's constitutional rights). Consequently, illegally-seized evidence is excluded whether it is obtained directly or indirectly. Wong Sun, supra,371 U.S. at 486,83 S.Ct. at 416,9 L.Ed.2d at 453. Indirectly-obtained evidence is excluded as "the fruit of the poisonous tree." Id.at 487-88, 83 S.Ct. at 417,9 L.Ed.2d at 455. Such evidence may not be introduced on the prosecution's case-in-chief unless it has been obtained "by means sufficiently distinguishable to be purged of the primary taint." Id.at 488, 83 S.Ct. at 417,9 L.Ed.2d at 455(quoting Maguire, Evidenceof Guilt221 (1959)).
The same result follows from an analysis of state law. Indeed, we have excluded a second confession as the "fruit of the poisonous tree" when law-enforcement authorities obtained an initial confession in violation of the defendant's common-law privilege against self-incrimination. Hartley, supra103 N.J. at 283,511 A.2d 80cf. State v. Bey I112 N.J. 45, 73-74548 A.2d 846 (1988)(written confession obtained twenty minutes after involuntary oral confession inadmissible, notwithstanding intervening waiver of " Mirandarights"); Barry, supra86 N.J. at 87-89429 A.2d 581(confession after an arrest without probable cause admissible because "intervening circumstances which preceded defendant's confession effectively purged the taint of his illegal arrest.").
Under either state or federal law, the critical determination is whether the authorities have obtained the evidence by means that are sufficiently independent to dissipate the taint of their illegal conduct. Brown, supra422 U.S. at 603,95 S.Ct.at 226145 L.Ed.2d at 427Hartley, supra103 N.J. at 283,511 A.2d 80Barry, supra86 N.J. at 87,429 A.2d 581. In making that determination, the test is not whether the authorities would have failed to obtain the challenged evidence "but for" their illegal conduct. Barry, supra86 N.J. at 87,429 A.2d 581. The test followed by both federal and New Jersey courts is based on three factors: (1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct. Brown, supra422 U.S. at 603-0495 S.Ct.at 2261-6245 L.Ed.2d at 427State v.Worlock, 117 N.J. 596, 622, 569 A.2d 1314 (1990)Hartley,supra103 N.J. at 283,511 A.2d 80see Barry, supra86 N.J. at 87,429 A.2d 581. Ultimately, the determination whether the evidence is the "fruit" of the illegal conduct is a factual matter for the court. Brown, supra422 U.S. at 604n. 10, 95 S.Ct. at 2262n. 10, 45 L.Ed.2d at 427n. 10; seeDunaway, supra442 U.S. at 218,99 S.Ct.at 225960 L.Ed.2d at 839Worlock, supra117 N.J. at 625569 A.2d 1314.
Relying on Brown v. Illinois, supra,422 U.S. 59095 S.Ct. 225445 L.Ed.2d 416, the Appellate Division cited four reasons for not excluding the evidence: the escape was not spontaneous; the refusal of the officials to let Johnson talk to his mother was not an impetus for his escape; the police did not physically abuse Johnson; and the telephone call was untainted because Johnson was not in custody at the time he called Prach. To reach that result, the court rejected the factual findings of the trial court and misapplied the Browntest. In both respects, the court erred.
A
When considering the three Brownfactors, the first, temporal proximity between the illegal police conduct and the evidence, may be ambiguous. Dunaway, supra442 U.S. at 220,99 S.Ct.at 2260-6160 L.Ed.2d at 841(Stevens, J., concurring); Worlock, supra117 N.J. at 622-23569 A.2d 1314. A long detention, like a short one, may compound the taint of an illegal arrest. Ibid.Consequently, state and federal courts have applied the "fruits" doctrine to exclude evidence after lengthy detentions.
In Taylor v. Alabama457 U.S. 687102 S.Ct. 2664,73 L.Ed.2d 314(1982), the Supreme Court excluded a confession obtained fourteen hours after defendant had been arrested illegally. After considering that defendant was in police custody, unrepresented by counsel, questioned on several occasions, fingerprinted, and subjected to a lineup, id.at 691, 102 S.Ct. at 266773 L.Ed.2d at 320, the Court concluded that the length of the detention did not dissipate the taint. Other courts have excluded evidence obtained after much longer detentions. People v. White117 Ill.2d 194, 223-224111 Ill.Dec. 288, 298, 512 N.E.2d 677, 688 (1987)(a long detention by itself may impel a defendant to confess), cert.denied485 U.S. 1006108 S.Ct. 146999 L.Ed.2d 698(1988);State v. Weekes268 N.W.2d 705, 709(Minn. 1978) (detention of thirty-four hours compounds the illegality of the arrest).
Thus, the Appellate Division erred in relying on the ten-hour length of Johnson's detention to find a lack of temporal proximity between it and Johnson's escape. Contrary to the ruling of the Appellate Division, exclusion of the evidence does not depend on whether the escape was a "spontaneous response" to the illegal police conduct. Here, moreover, the escape occurred only after Johnson had been questioned for ten hours, during which time the police repeatedly violated his rights.
In contrast to the Appellate Division, the trial court found, "[a]n individual is being unlawfully detained and he doesn't jump out of the window for no reason at all. The impetus for his jumping out of the window was that his mother had called and he wasn't allowed to speak to his mother." The court added that Johnson had focused on retaining a lawyer and on his mother as the one person most likely to retain one. From this, the court concluded that denying Johnson the opportunity to speak to his mother was the "proximate cause" of his escape.
Although the trial court did not expressly employ the tri-partite Brownanalysis, it made the necessary findings of fact from a "record of amply sufficient detail and depth from which the determination may be made." 422 U.S. at 604,95 S.Ct.at 226245 L.Ed.2d at 427. Contrary to the State's contention at oral argument, this determination is not for the jury, but for the court. Ibid.n. 10; Worlock,117 N.J. at 625,569 A.2d 1314.
The record provides substantial support for the trial court's finding that Johnson wanted to talk to his mother to obtain a lawyer. One need not be a constitutional scholar to appreciate an arrestee's right to counsel. Every television viewer understands that the police must inform an arrestee of his or her right to counsel and, if he or she is indigent, to the appointment of assigned counsel. Here, the denial of Johnson's request to speak to his mother was an extension of the denial of his right to counsel. That denial, as the trial court found, precipitated defendant's flight.
In many, if not most, situations the denial of the opportunity to speak to a family member would not justify an escape from custody. Even here, Johnson's escape constituted a separate offense, one to which he pled guilty and for which he has served a period of incarceration. The issue before us, however, is not whether Johnson should be punished for the escape, but whether he should be prejudiced in his trial for murder by the flagrant violations of his constitutional rights.
The Appellate Division to the contrary notwithstanding, the record amply supports the trial court's finding that the impetus for the escape was the denial of defendant's request to speak to his mother, whom he expected to retain a lawyer. Not only was the trial court's finding not "clearly a mistaken one," State v.Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964), it was solidly based on the record. By declaring that it found no support for that finding, the Appellate Division usurped the trial court's power to find facts. In sum, the Appellate Division should have affirmed the trial court's conclusion that Johnson's escape was prompted by the relentless violation of his constitutional rights.
The same analysis applies to Johnson's telephone call, which was inextricably intertwined with the escape. See Bey I, supra112 N.J. at 73-74548 A.2d 846;Hartley, supra103 N.J. at 279,511 A.2d 80. Only two hours after escaping, Johnson telephoned Prach to apologize for breaking the window and to say that he would surrender as soon as he had obtained a lawyer. Forty hours later, after retaining counsel, Johnson surrendered to the police. Thus, the escape was not an attempt to avoid apprehension, but, as the trial court found, an attempt to flee "the premises to get a lawyer." That finding undercuts the contrary finding of the Appellate Division that evidence of the telephone call was untainted because at the time he placed the call, Johnson was not in custody.
B
The second factor, intervening events, "can be the most important factor in determining whether [evidence] is tainted." Worlock, supra117 N.J. at 623569 A.2d 1314. Identifying such a factor, however, "can be difficult." Ibid."In the face of egregious police conduct, the State should show some `demonstrably effective break in the chain of events leading from the illegal arrest to the [evidence], such as actual consultation with counsel or the accused's presentation before a magistrate for a determination of probable cause.'" Id.(quoting Brown,supra422 U.S. at 611,95 S.Ct.at 226545 L.Ed.2d at 432(Powell, J., concurring)) at 623-24, 569 A.2d 1314(citations omitted).
When analyzing intervening circumstances in this case, the Appellate Division cited several out-of-state cases for the proposition that the escape itself was an intervening act admissible to prove Johnson's consciousness of guilt. As a matter of logic alone, the argument is fallacious: the escape cannot be a factor that intervenes between itself and the illegal police conduct. In each case cited by the Appellate Division, moreover, the police made an illegal arrest without probable cause and, in apprehending the defendant after his escape, found evidence that incriminated him either for the escape or for a new offense. When holding that the incriminating evidence was admissible to prove the new offense, the courts understandably held that the escape itself was an intervening circumstance between the illegal detention and that evidence. United States v. Bailey691 F.2d 1009, 1018-19(11th Cir. 1982) (defendant recaptured after flight following drug-courier-profile stop; drugs found during search properly admitted), cert. denied, 461 U.S. 933, 103 S.Ct. 2098, 77 L.Ed.2d 306(1983); United States v. Garcia516 F.2d 318, 320(9th Cir.) (defendant fled after being stopped by the Border Patrol; fifty-five pounds of marijuana, found in trunk after agents pulled defendant over after high-speed chase and determined defendant was illegal alien, held admissible), cert. denied sub nom. Martinez-Lopez v.United States, 423 U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265(1975); United States v. Nooks446 F.2d 1283, 1287-88(5th Cir.) (defendant fled after being stopped by sheriff without probable cause; subsequent arrest valid because defendant's flight at 115 miles per hour and his shooting at sheriff created untainted probable cause to arrest), cert. denied sub nom. Hughes v.United States, 404 U.S. 945, 92 S.Ct. 299, 30 L.Ed.2d 261(1971); People v. Perez, 123 A.D.2d 791, 792, 507 N.Y.S.2d 264, 265 (1986) (defendant's act of walking away from police and dropping gun behind bushes was "independent act involving a calculated risk" rather than spontaneous reaction to illegal arrest); State v. Jacobson398 So.2d 857, 859(Fla. Dist. Ct. App. 1981) (defendant fled after illegal drug-courier-profile stop; drugs found during search, on recapture, held admissible); mod. on other grounds476 So.2d 1282 (1985). In none of these cases, however, was the incriminating evidence admitted to establish the offense for which the defendant had been illegally detained. In brief, the cases are irrelevant to the question before us, whether the State may use the fact of Johnson's escape in his trial for murder, the offense for which he was illegally detained. The cases are relevant only to the offenses committed during or subsequent to Johnson's escape.
Here, the only intervening events were the repeated violations of defendant's constitutional rights. The violation of those rights after the administration of Mirandawarnings did not break, but rather forged, the chain of causation between the police misconduct and the escape. Even without the subsequent violations, it is doubtful that the reading of those warnings and defendant's brief meeting with his girl friend would have broken the chain of causation. See Taylor, supra457 U.S. at 691,102 S.Ct.at 266773 L.Ed.2d at 320Dunaway, supra442 U.S. at 217,99 S.Ct.at 225960 L.Ed.2d at 839Brown,supra422 U.S. at 603,95 S.Ct.at 226245 L.Ed.2d at 427Mirandawarnings permit finding that subsequent confession was voluntary, but this type of "voluntariness" is merely threshold requirement under "fruits" analysis).
C
The most striking feature of this case centers on the third factor, the flagrancy and purpose of the police misconduct. Described by the trial court as "a tragedy of errors," the Appellate Division found the misconduct to be "antediluvian" and to constitute "wholesale violations of defendant's rights under the Fifth and Sixth Amendments * * *." No matter how characterized, the facts reveal numerous violations of defendant's constitutional rights from his detention through his escape. Before us, the State does not dispute that it violated those rights. Instead, it focuses on the causal connection between those violations and defendant's flight.
In light of the State's concession, we need not dwell on the violations, except to note that they began with the unlawful detention, extended through the failure to administer Mirandawarnings, and culminated in the transgressions of defendant's rights to remain silent and to counsel. In sum, defendant was the victim of a continuum of police misconduct.
D
Notwithstanding the violations of defendant's constitutional rights, the Appellate Division concluded that the failure to admit evidence of the escape would shield defendant from the consequences of his illegal act. In reaching that result, the court quoted approvingly from United States v. Bailey, that suppression would "virtually immunize a defendant from prosecution for all crimes he might commit that have a sufficient causal connection to the police misconduct."691 F.2d 1009, 1017(11th Cir. 1982). Johnson, however, does not seek immunity from prosecution for his escape. As previously noted, he has already pled guilty and been sentenced to ten months in jail for the two offenses arising out of the escape.
We likewise reject the State's contention that evidence of defendant's escape and telephone call are admissible because they were voluntary. Voluntariness is merely a threshold requirement.Dunaway, supra442 U.S. at 219,99 S.Ct.at 226060 L.Ed.2d at 840Brown, supra422 U.S. at 602,95 S.Ct.at 226145 L.Ed.2d at 426. Even if Johnson acted voluntarily, evidence of the escape and telephone call should be suppressed because the State has not purged the evidence of the taint of its own illegal conduct.
Contrary to the State's contentions, the absence of physical abuse does not advance the argument in favor of admission of the evidence. Dunaway, supra442 U.S. at 218-1999 S.Ct.at 226060 L.Ed.2d at 840. The rights of the public to be free from the unwarranted use of power by law-enforcement officials would be in a sorry state if evidence obtained in violation of a citizen's constitutional rights were admissible merely because the citizen had not been subjected to physical abuse. Deterrence of police misconduct is not limited to the prevention of physical abuse. Excluding evidence serves to enforce a defendant's right to be free from unreasonable searches and seizures, Wong Sun,supra371 U.S. at 486,83 S.Ct. at 416,9 L.Ed.2d at 454; to be free from compelled self-incrimination, Mosley, supra, 423 U.S. at 104, 96 S.Ct. at 326, 46 L.Ed.2d at 321; and to counsel, Massiah, supra377 U.S. at 206,84 S.Ct. at 1203,12 L.Ed.2d at 250. Without some form of deterrence, police violations of those rights could reduce constitutional protections to a nullity. Cf. Weeks, supra232 U.S. at 393,34 S.Ct. at 344,58 L.Ed. at 656("If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.").
We reach the same result under an independent analysis of state law. The New Jersey Constitution expressly prohibits searches and seizures without probable cause. N.J. Const. of 1947art. I, § 7; Novembrino, supra105 N.J. at 205,519 A.2d 820;Statev. Valencia, 93 N.J. 126, 141, 459 A.2d 1149 (1983); Statev. Hunt, 91 N.J. 338, 348, 450 A.2d 952 (1982)State v.Fariello, 71 N.J. 552, 558-59, 366 A.2d 1313 (1976)Statev. Macri, 39 N.J. 250, 266, 188 A.2d 389 (1963)State v.Valentin, 36 N.J. 41, 43, 174 A.2d 737 (1961). It also guarantees criminal defendants the right to counsel.N.J. Const.of 1947art. I, § 10. Although the State Constitution does not contain a right against self-incrimination, that right exists under the common law. Hartley, supra103 N.J. at 286,511 A.2d 80. When assessing violations of that right, we have employed the three-part Browntest, Worlock, supra117 N.J. at 622569 A.2d 1314Hartley, supra103 N.J. at 283,511 A.2d 80, not because we are bound to follow it, but because we have elected to receive the benefit of its guidance, Michigan v. Long463 U.S. 1032, 1041103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201, 1214 (1983); Hartley, supra103 N.J. at 286,511 A.2d 80.
To summarize, under both state and federal law, the evidence of Johnson's escape and telephone call must be excluded. Defendant's escape followed repeated violations of his constitutional rights over a ten-hour detention and immediately after he was denied his last chance to obtain a lawyer. No mitigating circumstances intervened between the police misconduct and defendant's escape. Only by excluding evidence of the escape and telephone call can we deter such reprehensible misconduct and preserve the integrity of the judicial system.
III
We next turn to the effect of the plea agreement on the admissibility of the facts of the escape and telephone call. Notwithstanding its agreement not to use the convictions for escape and disorderly conduct to impeach defendant's credibility, the State now seeks to use evidence of the underlying facts for impeachment purposes.
The trial court excluded that evidence because admission would be inconsistent with the agreement barring use of the convictions. As the trial court stated, "I don't see how you can possibly produce * * * testimony * * * that defendant called up and said, I'm sorry I broke your window * * * without the jury concluding that he must have committed some crime at the police station."
Over Judge Shebell's dissent, the Appellate Division reversed, finding that in the plea agreement defendant had waived the right to challenge the evidence.
In reviewing the conflicting positions of the lower courts, we begin with the agreement and defendant's plea. Neither indicates that defendant waived his right to challenge the admission of evidence of underlying facts. The only relevant references in the agreement are defendant's answers to questions three and four on the plea form. In answer to a question inquiring whether "any other promises, recommendations, or inducements had been made to [him] by the prosecutor or anyone else concerning this plea of guilty," defendant wrote, "[p]etty disorderly persons charge + criminal mischief charge to run concurrent to each other." Defendant denied in writing that anyone had "threaten[ed]" or "force[d] [him] in any way to cause [him] to offer this plea of guilty."
According to the State, its agreement not to use the conviction left it free "to use the facts of the [escape] at the subsequent trial on the homicide." The attorney who represented Johnson when he pled guilty, however, did not recall that the State retained the right to refer to the underlying facts. At one point in the suppression hearing, the trial court indicated that its recollection was consistent with that of the State. At another point, however, it said that the agreement barring use of the conviction did not imply "that the factual basis or anything that the defendant said was part of the overall plea bargain." The court's ultimate order of suppression supports the proposition that it believed that defendant had not waived the right to challenge the evidence. Nothing in the record indicates that Johnson personally waived the right to challenge the admission of evidence of the underlying facts.
Although we agree that the terms of a plea agreement "must be meticulously carried out," State v. Jones,66 N.J. 524, 525-26, 333 A.2d 529 (1975), we conclude that the Appellate Division misapplied that proposition. Under Rule3:9-3(b), a plea agreement shall be placed on the record in open court at the time the plea is entered. Here, the agreement as reflected in the plea form does not contain any waiver of Johnson's right to challenge the underlying evidence. Meticulous enforcement of the agreement, therefore, counsels against finding any such waiver.
Furthermore, we recently wrote, "[i]t is axiomatic in plea bargaining that all material terms and relevant circumstances be clearly disclosed, fully understood, and knowingly and voluntarily accepted by the defendant." State v. Warren115 N.J. 433, 444558 A.2d 1312 (1988). We agree with Judge Shebell that "[i]f a defendant is to waive a fundamental right, it must be placed upon the record and his full understanding of the waiver must be demonstrated in open court." Under the ambiguous circumstances surrounding defendant's plea, we are loathe to infer a waiver from a blank record. In sum, the State is precluded from impeaching defendant's credibility by recourse not only to the convictions but also to the underlying facts.
The judgment of the Appellate Division is reversed, and the matter is remanded to the Law Division.
For reversal and remandment— Chief Justice WILENTZ and Justices POLLOCK, CLIFFORD, HANDLER, O'HERN, GARIBALDI, and STEIN — 7.
Opposed— None.