Top 15 cases affecting Municipal Court in 2011

BY KENNETH A. VECAMMEN
1. !a" eport Not A#$issi"le in %&' Case. Bullco$ing ( Ne) Me*ico
1+1 ,. Ct. 2-05 .2011/
The Sixth Amendments Confrontation Clause gives the accused [in all
criminal prosecutions, . . . the right . . . to be confronted with the witnesses
against him. !n Crawford v. "ashington, #$% &. S. '(, #), this Court held that
the Clause permits admission of [testimonial statements of witnesses absent
from trial . . . onl* where the declarant is unavailable, and onl* where the
defendant has had a prior opportunit* to cross+examine. ,ater, in -elende.+
/ia. v. -assachusetts , ##0 &. S. 111, the Court declined to create a forensic
evidence exception to Crawford, holding that a forensic laborator* report,
created specificall* to serve as evidence in a criminal proceeding, ran2ed as
testimonial for Confrontation Clause purposes. Absent stipulation, the Court
ruled, the prosecution ma* not introduce such a report without offering a live
witness competent to testif* to the truth of the reports statements.

The Confrontation Clause, the opinion concludes, does not permit the
prosecution to introduce a forensic laborator* report containing a testimonial
certification, made in order to prove a fact at a criminal trial, through the in+court
testimon* of an anal*st who did not sign the certification or personall* perform or
observe the performance of the test reported in the certification. The accuseds
right is to be confronted with the anal*st who made the certification, unless that
anal*st is unavailable at trial, and the accused had an opportunit*, pretrial, to
cross+examine that particular scientist.
3. 0"1ection to la" report starts after all reports pro(i#e#. ,tate (. Heisler
$33 4.5. Super. ')) 6App. /iv. 37%%8
The court held that the ten+da* period in which a defendant must ob9ect to
the admission into evidence of a lab certificate, or else waive his right to confront
the laborator* anal*st, begins to run onl* after the State has provided :all reports
relating to the anal*sis in ;uestion.: 4.5.S.A. 3C<'#+%). The court resolved
ambiguit* in the statute that re;uires the State to serve its notice of intent to use
a lab certificate and supporting data twent* da*s before trial, but re;uires a
defendant to ob9ect within ten da*s of receiving onl* the notice of intent. As the
defendant=s ob9ection was timel* under our statutor* construction, we reversed
his convictions for being under the influence of C/S, and operating a vehicle
while 2nowingl* having C/S in his possession or in the vehicle.
' E*pert can testif2 to la" report if t3e2 )atc3e# 4 super(ise# la" test.
%
,tate ( e3$ann 516 N7 ,uper. 551 .App. %i(. 2011/
!n see2ing to prove defendant=s blood alcohol content in this /"!
prosecution, the State called an expert to testif* about the results of a laborator*
test performed on defendant=s blood sample b* another technician. !n
considering defendant=s argument that the failure to produce the other technician
violated the rights guaranteed him b* the Confrontation Clause of the Sixth
Amendment, the court held that in such circumstances the State must call a
witness who has made an independent determination as to the results offered.
The court concluded that a surrogate witness 2nowing nothing but what is stated
in another=s report will not satisf* a defendant=s confrontation rights but
nevertheless affirmed and found that the State called an appropriate witness
because the witness supervised the testing process and signed the laborator*
certificate.

5 Motion to suppress grante# )3en police #i# not o"tain telep3onic searc3
)arrant for car. ,tate ( ,3annon 516 N7 ,uper. 2+5 .App. %i(. 2011/
The court reversed defendant=s conviction of possession of cocaine, finding
his motion to suppress the cocaine found in a warrant+less search of his 5eep
should have been granted. The search was not incident to arrest, did not occur
late at night, the stop was in a residential area, and four Asbur* >ar2 >olice
?fficers were at the scene with defendant, who was alone. The court found no
exigenc* existed pursuant to State v. >ena+@lores %)A 4.5. ( 6377)8.

# 'f #efen#ant 3a# prior C%8 can9t get :T'. ,tate ( 0;Brien 51< N7 ,uper.
52< .App. %i(. 2011/
The ;uestion presented is whether a defendant who previousl* received
supervisor* treatment under the conditional discharge statute, 4.5.S.A. 3C<'(A+
%, and who later applied for and obtained an order vacating the conditional
discharge, ma* thereafter be admitted into >T!. The court answer the ;uestion in
the negative, concluding that 4.5.S.A. 3C<$'+%3g and Bule '<3A, Cuideline '6g8
prohibit an* person previousl* placed into supervisor* treatment under the
conditional discharge statute from subse;uent admission into >T!, whether the
conditional discharge is later vacated or not
( :olice $a2 not #estro2 initial notes. ,tate (. &.B. 205 N7 5<< .2011/
After producing their final reports, law enforcement officers ma* not destro*
contemporaneous notes of interviews and observations at the scene of a crime.
?ur criminal discover* rules provide for discover* of all statements of witnesses
and police reports that are in the possession, custod* and control of the
prosecutor. Bule '<%'+' encompasses the writings of an* police officer under
3
the prosecutors supervision as the chief law enforcement officer of the count*. !f
a case is referred to the prosecutor following arrest b* a police officer, or on a
complaint b* a police officer, local law enforcement is part of the prosecutors
office for discover* purposes. !mplementation of this retention and disclosure
re;uirement was deferred for thirt* da*s to allow prosecutors sufficient time to
educate police officers. Thereafter, if an officers notes are lost or destro*ed
before trial, a defendant, upon re;uest, ma* be entitled to an adverse inference
charge molded to the facts of the case.
- !ess E*pensi(e Testing T3er$o$eter is ,ufficient )it3 %&'. ,tate (.
Hollan# 52+ N7 ,uper. +06 .App. %i(. 2011/
The court held that sufficient credible evidence supports the remand court=s
findings that the Control Compan* digital thermometer is comparable in all
material respects to the Drtco+ Eart digital thermometer previousl* used during
the Alcotest calibration process, and that the Control Compan* certificate is
faciall* valid and satisfies the re;uirements as a foundational document as
re;uired b* State v. Chun, %)$ 4.5. #$, cert. denied, %3) S. Ct. %#A 6377A8.
<. Ne) E*pert Testi$on2 e=uires Testi$on2 of Accepta"ilit2 an#
elia"ilit2. ,tate (. :itt$an 516 N7 ,uper. 5<5 .App. %i(. 2011/
4ew 5erse* has not considered the admissibilit* in a criminal case of the
results of the phenolphthalein presumptive test for the presence of blood on a
person or ob9ect or an* other presumptive test utili.ed for that purpose.
4onetheless, in this case, evidence of a positive result was introduced, without
ob9ection, b* a police detective with no prior experience in conducting the test
and no understanding of how it functioned or of the possibilit* of false positive
results occurring as the result of the presence of substances other than blood.
The court found the introduction of the test results to constitute reversible error,
and in the course of our discussion of the issue, canvassed precedent from
other states discussing the conditions for admissibilit* of the phenolphthalein
test and other presumptive tests for the presence of blood. This case is relevant
to -unicipal Court when police re;uest to testif* as experts on EC4 or /BD.
6. %enial of Cri$inal Motions #oes not "ar 0:A e=uest. Ko(alci> (.
,o$erset Count2 :rosecutor9s 0ffice 20? N7 5<1 .2011/

The 9udgment was affirmed to the extent that it concluded that the police and
prosecutor office documents are not exempt as protected b* an order of
confidentialit*. The 9udgment was reversed to the extent that it held that the
'
documents are also not exempted personnel records. That aspect of the matter
was remanded to the trial court for further proceedings during which the parties
shall be given an ade;uate opportunit* to marshal sufficient proofs as the nature
of the contents of the particular documents and the specific educational
re;uirements for emplo*ment as a detective in the >rosecutors ?ffice to enable
the court to appl* the statute in accordance with the anal*sis the Court has set
forth.
10. No E*ception to ,earc3 &arrant for @Nuisance A"ate$ent.A ,tate (.
Kaltner 520 N7 ,uper. 525 .App. %i(. 2011/

There is no broad :nuisance abatement: exception under the communit*
careta2ing doctrine to the general rule that warrantless entries into private
homes are presumptivel* unreasonable. !n assessing the constitutional
tolerance of entr* into and search of a home in response to a noise complaint,
we emplo* the :ob9ectivel* reasonable test,: balancing the nature of the intrusion
necessar* to handle the perceived threat to the communit* careta2ing concern,
the seriousness of the underl*ing harm to be averted, and the relative
importance of the communit* careta2ing concern.
The court held the test was not met where police officers, responding in the
earl* morning hours to a noise complaint, lawfull* entered the home, but
thereafter fanned out and searched the entire residence for someone in control,
while other less intrusive options were available and no compelling need was
presented.
11 %V e(erse# )3ere Court :er$itte# Testi$on2 of Acts not set fort3 in
Co$plaint. 7.%. (. M.%.B . 20- N7 55< .2011/

4.5.S.A. 3C<''+$ a. re;uires proof of a single communication that was made
anon*mousl*, at an extremel* inconvenient hour, or in a coarse or offensive
language, for the purpose to harass and in a manner li2el* to cause anno*ance
or alarm. Subsection c. re;uires proof of a course of alarming conduct or
repeatedl* committed acts with the purpose of alarming or seriousl* anno*ing
the victim. /istinguishing between acts that constitute harassment for purposes
of domestic violence and those that are ordinar* domestic contretemps can be
difficult. Such a determination ma* depend on the second in;uir* re;uired for
complaints under the Act.

/ue process re;uires that a part* in a 9udicial hearing receive notice defining
the issues and an opportunit* to prepare. !t forbids the trial court from converting
a hearing on one act of domestic violence into a hearing on other acts that are
$
not alleged in the complaint. Trial courts should use the allegations in the
complaint to guide their ;uestions, and avoid inducing plaintiffs to abandon that
histor* in favor of new accusations.
4ot all offensive or bothersome behavior constitutes harassment. Eere, the
trial court did not identif* which subsection of the harassment statute it was
appl*ing. The evidence is not sufficient to support a finding under subsection a.
because merel* being outside of the home in the morning hours is not
harassment and 5./. was unaware he was outside until B.T. alerted her, after
which he beat a hast* retreat.
12. 'f no E*igenc28 no )arrantless searc3 e(en if report of gun. ,tate (
&itcCa> 521 N7 ,uper. 1<0 .App. %i(. 2011/
The court reviewed an interlocutor* order den*ing defendant=s motion to
suppress a handgun sei.ed from his residence. The primar* ;uestion presented
is whether the communit* careta2er exception enunciated in Cad* v.
/ombrows2i applied to a warrantless search in the home. /efendant contended
that the motion 9udge erred b* appl*ing the exception, and urged the court to
follow the rationale expressed in Ba* v. Township of "arren, which held that the
exception does not extend to searches of homes. The court declined to follow
Ba* and continued to appl* 4ew 5erse* precedent, which permitted the
exception in the home context on a case+b*+case, fact+sensitive basis. The court
reversed, however, because no exigencies existed for the warrantless entr* into
defendant=s home and the State did not demonstrate that the search was
performed for the legitimate purpose of fulfilling a communit* careta2er
responsibilit*. $+%3+%%
1+. As>ing !ocation of Han#gun :er$itte# if E*igent Circu$stances. ,tate
(. Melen#eC 52+ N7 ,uper. 1 .App. %i(. 2011/
Bel*ing on the public safet* exception in 4ew For2 v. Guarles, %7$ S. Ct.
3(3(, 3('% 6%)A$8, and State v. ?=4eal, %)7 4.5. (7%, (%A 637708, the trial court
admitted inculpator* statements defendant gave in response to officers=
;uestions about the location of the handgun he used to 2ill his wife. /efendant
was in custod* and had invo2ed his right to counsel.
Assuming the claimed :public safet*: meets the criteria in State v.
Stephenson, '#7 4.5. Super. #%0, #3# 6App. /iv. 37738, the court is persuaded
b* the reasoning in &nited States v. /eSantis, A07 @.3d #'(, #$% 6)th Cir. %)A)8,
and hold that the same :exigent circumstances: that permit the pre+-iranda
interrogation of a defendant, permit the police to ;uestion a defendant after he or
she has invo2ed the right to counsel. >ursuant to Stephenson, the court holds
there was an insufficient basis to appl* the public safet* exception. The court
#
affirms, however, because the trial court correctl* found defendant waived his
right to counsel, independent of the initiall* tainted interrogation.
15. :rior refusal to ta>e "reat3 test #oes not count for +
r#
%&'
,tate (. Ciancaglini 37$ 45 #)0637%%8
/efendant Ciancaglinis conviction in 377( for refusing to ta2e a
breathal*.er test does not constitute a prior conviction for purposes of
determining her sentence for driving while intoxicated in 377A.
15. Error "2 police #ispatc3er in in(ali# arrest )arrant re=uires
suppression of e(i#ence un#er N7 Constitution. ,tate (. Han#2 20? N7 +6
.2011/
The dispatchers conduct H advising an officer on the scene that there was
an outstanding warrant when the warrant contained a differentl* spelled name
and a different date of birth H was ob9ectivel* unreasonable and violated the
@ourth Amendment to the &nited States Constitution and Article !, >aragraph 0,
of the 4ew 5erse* Constitution. Dvidence uncovered during the search incident
to the arrest must be suppressed.
Kennet3 A. Verca$$en is an Ddison, -iddlesex Count*, 45 trial attorne*
who has published %3# articles in national and 4ew 5erse* publications on
business and litigation topics. Ee handles Criminal, >robate, Civil ,itigation and
Dstate matters. Ee often lectures to trial law*ers of the American Iar
Association, 4ew 5erse* State Iar Association and -iddlesex Count* Iar
Association.
Ee is a highl* regarded lecturer on litigation issues for the American Iar
Association, !C,D, 4ew 5erse* State Iar Association and -iddlesex Count* Iar
Association. Eis articles have been published b* 4ew 5erse* ,aw 5ournal, AIA
,aw >ractice -anagement -aga.ine, and 4ew 5erse* ,aw*er. Ee is the Dditor
in Chief of the 4ew 5erse* -unicipal Court ,aw Beview. -r. Jercammen is a
recipient of the 45SIA+ F,/ Service to the Iar Award.
Ee has served as a Special Acting >rosecutor in nine different cities
and towns in 4ew 5erse* and also successfull* handled over ?ne thousand
-unicipal Court and Superior Court matters in the past %A *ears.
!n his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. Ee has
appeared in Courts throughout 4ew 5erse* several times each wee2 on Criminal
(
personal in9ur* matters, -unicipal Court trials, and contested >robate hearings.
Ee serves as the Dditor of the popular legal website www.n9laws.com
KD44DTE JDBCA--D4 L ASS?C!ATDS, >C
ATT?B4DF AT ,A"
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Ddison, 45 7AA%0
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