Ken is author of the ABA book "Criminal Law Forms".

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Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.

 He is the past chair of the NJ State Bar Association Municipal Court Section. He is the Co- Chair of the ABA Criminal Law committee, Solo Division.


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Sunday, September 25, 2016

No automatic right to discovery of other files State v. Hernandez 225 NJ 451 (2016)

No automatic right to discovery of other files
State v. Hernandez 225 NJ 451 (2016)

Although the discovery rule generally requires that the State provide all evidence relevant to the defense of criminal charges, it does not open the door to foraging through files of other cases in search of relevant evidence. The discovery ordered by the trial court and  Appellate Division exceeds the limits of Rule 3:13-3(b) and is not supported by this Court’s jurisprudence.  

Sunday, September 18, 2016

Police video is public record under OPRA Paff v Ocean County Prosecutors Officer

Police video is public record under OPRA  Paff v Ocean County Prosecutors Officer __ NJ Super. __ (App. Div. 2016)

(MVRs) in  police vehicles - which, in accordance with the police chief’s  written policy order, are generated automatically whenever the  vehicle’s overhead lights are activated - are “government  records” subject to disclosure under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Appellant Ocean County  Prosecutor’s Office failed to carry its statutory burden to show that the films fall within an exception under OPRA. Judge Gilson dissents. A-4226-14T3

Monday, September 05, 2016

Suppression where stop based only for high beam State v. Scriven

Suppression where stop based only for high beam State v. Scriven __ NJ __

The trial court and Appellate Division properly concluded that the motor-vehicle stop violated the Federal and State Constitutions. The language of the high-beam statute, N.J.S.A. 39:3-60, is unambiguous; drivers are required to dim their high beams only when approaching an oncoming vehicle. Neither a car parked on a perpendicular street nor an on-foot police officer count as an oncoming vehicle. The judgment of the Appellate Division upholding the trial court’s suppression of the evidence is affirmed. (A-11-15)

Sunday, August 21, 2016

Prosecutor must provide videotape and audiotape plus names of officers from other towns involved in stop State v Stein

Prosecutor must provide videotape and audiotape plus names of officers from other towns involved in stop
State v Stein

A-26 September Term 2014

In this appeal from defendant’s conviction for driving while intoxicated (DWI) and careless driving, the Court considers the obligations of a municipal prosecutor under Rule 7:7-7(b), which governs discovery in municipal court proceedings.
Defendant Robert Stein was charged with DWI and careless driving after a motor vehicle accident in Wayne Township. The responding officers observed that defendant’s eyes were bloodshot and watery, his speech was slurred, his breath smelled of alcohol, and, as he walked, he swayed and grasped for support. Defendant also failed the field sobriety tests. Defendant claimed that, while performing the sobriety tests, he was suffering the effects of the crash of his vehicle and deployment of the air bags, which hit him squarely in the face. The two breath samples that defendant gave during a breathalyzer test revealed blood alcohol concentrations of 0.17 and 0.18 percent.
In pretrial discovery, defendant requested the names of the police officers who responded to the scene, including those from a neighboring township. The municipal prosecutor did not provide the names of the neighboring township’s officers, and defendant did not raise the issue with the municipal court. Defendant also requested videotapes which may have recorded his appearance, behavior, and motor skills at the accident scene and police headquarters. The municipal prosecutor repeatedly stated, at a pretrial hearing and trial, that videotapes did not exist. Defendant disputed that contention, and continued to request the tapes. The record is unclear on whether videotapes existed when defendant requested them because that issue was neither presented to, nor determined by, the municipal court.
The municipal court found defendant guilty of DWI and careless driving. The court based its DWI finding on the breathalyzer readings and the officers’ observations of defendant. The court sentenced defendant, as a third-time DWI offender, to incarceration for a term of 180 days in the county jail and loss of his license for a period of ten years. After a trial de novo on the record, the Law Division also convicted defendant of DWI and careless driving, based on the breathalyzer readings and, separately, on observational evidence. The court imposed the same sentence as did the municipal court. Additionally, the Law Division ruled that the municipal prosecutor was not required to provide discovery of the names of the neighboring police officers or the videotapes that defendant requested. The Appellate Division affirmed the motor-vehicle convictions and the Law Division’s discovery rulings. This Court granted limited certification. 220 N.J. 97 (2014).
H_E_L_D_:_ _Under Rule 7:7-7(b), the municipal prosecutor was required to provide defendant with the names of the police officers from the adjacent jurisdiction who responded to the accident scene. Because, when the prosecutor failed to provide the information, defendant did not raise this issue before the municipal court, or seek relief under the Rule, the issue has been waived. The prosecutor was also required to provide the videotapes that defendant requested, if they existed, since such information was clearly relevant to a DWI defense. Because the Court cannot determine from the record whether any videotapes exist, the matter is remanded to the Law Division for further proceedings on this issue.
1. The resolution by the trial court of a discovery issue is entitled to substantial deference and will not be overturned absent an abuse of discretion. On appeal, a court need not defer to a discovery order that is based on a mistaken understanding of the applicable law. In reviewing the meaning of a court rule, this Court owes no deference to the interpretations of the trial court and the Appellate Division, unless they are persuasive in their reasoning.   

2. The discovery rules governing the municipal court and the Criminal Part of the Law Division are nearly identical, and both mandate the disclosure of the same categories of information. Broad discovery and the open-file approach apply in criminal cases to ensure fair and just trials. In light of the similarity between criminal and municipal court cases, the procedural protections afforded, and their discovery rules, the liberal approach to discovery in criminal cases is applicable in municipal court cases. Rule 7:7-7(b) provides that a defendant has a right to discovery of all relevant material in a municipal court case. The Rule sets forth eleven specific categories of information that a defendant is entitled to receive, on written request to the municipal prosecutor.   
3. Under Rule 7:7-7(b)(7), if the municipal prosecutor knows that police officers from an adjoining jurisdiction have relevant information pertaining to a DWI case, their names and addresses must be disclosed to the defendant. The Rule does not distinguish between individuals with relevant information who are located within the municipality having jurisdiction over the charges against a defendant, and those located outside the jurisdiction.   
4. Under Rule 7:7-7(b)(6), a municipal prosecutor is required to provide a defendant, upon his request, with relevant documentary evidence, including video and sound recordings and images if it is within the State’s custody or control. A video or sound recording, such as a recording from a patrol car’s dashboard camera, or a video recording of a breathalyzer test, or defendant’s appearance, behavior and motor skills, including his performance of psychomotor physical or sobriety tests, is relevant to prove or disprove a DWI defendant’s intoxication. The State may seek the redaction of a video recording, or an in camera review, if necessary, under appropriate circumstances and consistent with a defendant’s fair-trial rights. To ensure the availability of such evidence, a defendant should give written notice to the municipal prosecutor to preserve pertinent videotapes.   
5. In this case, the municipal prosecutor had an obligation under Rule 7:7-7(b)(7) to provide defendant with the names of the police officers from the adjoining town of Pequannock who had responded to the accident scene, based on the two discovery letters that defense counsel sent to the municipal prosecutor. However, defendant did not seek to compel the prosecutor to comply with the State’s disclosure obligations, as authorized by Rule 7:7-7(j). Because defendant did not raise or preserve the issue in municipal court, the Court declines to consider it on appeal.   
6. The two discovery letters that defendant’s counsel sent to the municipal prosecutor requesting videotapes, or recordings made by a video-equipped police vehicle, of the accident scene and of defendant’s appearance and performance of the sobriety tests, unquestionably sought relevant evidence. This Court disagrees with the determination of the courts below, and holds that the videotapes must be disclosed under Rule 7:7-7(b)(6), provided that such recordings existed at the time defendant sought the information. Such tapes would provide evidence relevant to defendant’s sobriety and the officers’ conclusion that defendant was under the influence.   
7. The Court remands this matter to the Law Division for further proceedings to determine whether any relevant video recordings ever existed, or were available when defendant made the discovery requests. Depending on the court’s conclusions on remand regarding whether the tapes existed, the Law Division has wide latitude to fashion an appropriate remedy pursuant to Rule 7:7-7(j).   
The judgment of the Appellate Division is A_F_F_I_R_M_E_D_ _I_N_ _P_A_R_T_ _and R_E_V_E_R_S_E_D_ _I_N_ _P_A_R_T_, and the matter is R_E_M_A_N_D_E_D_ _to the Law Division for further proceedings consistent with the Court’s opinion.

Monday, August 15, 2016

Old IDRC rules held invalid STATE v. LEARY 232 N.J. Super. 358 (1989)

 New IDRC  regulations are now at N.J.A.C. 10:162 (2014)
Old rules discussed in
STATE v. LEARY 232 N.J. Super. 358 (1989)
556 A.2d 1328
Superior Court of New Jersey, Law Division Burlington County.
Decided February 21, 1989.
This opinion holds that the Intoxicated Driver Resource Centers ("IDRCs") have no valid rules of procedure and, consequently, persons convicted of driving while intoxicated ("DWI") cannot be sentenced to participate in IDRC programs. Such sentences deny due process.
Marion G. Leary was convicted of DWI and, among other things, sentenced to serve two consecutive days at an IDRC. After completing the two-day program, he was informed that 16 more weeks of outpatient counselling were required of him. He complied with this requirement but, at the last session, was told he was intoxicated and would be required to submit to further treatment. Shortly thereafter, the IDRC issued a "Noncompliance Report" stating that Leary "did not comply with treatment planned." Comments in the report were as follows:
1. Mr. Leary was released unsuccessfully from treatment after arriving intoxicated.
2. Mr. Leary describes an abusive history of alcohol consumption.
3. Client is in denial of his alcoholism.
Recommendations: Rehab. [sic]
A letter to the Mansfield Township Municipal Court from the Community Guidance Center of Mercer County, to which Leary had been sent for his 16-week counselling program, enclosed a "client treatment release" form. This was signed by a certified alcohol counselor who recommended inpatient treatment for Leary because he had not successfully completed his outpatient treatment. The letter to the court stated that Leary had failed to keep two appointments to discuss the recommendation, had refused inpatient treatment and had not been "seen or heard from" since the date of the refusal.
Leary appeared in the municipal court in response to the noncompliance report. He was represented by counsel. The State, in order to prove noncompliance, presented the Director of the Mercer County IDRC as its only witness. She admitted that she had not seen Leary and then said:
And what we do is we keep a record of every interaction. So that's what I have access to right now. And that's what I'm reporting from as well as my own interactions with Margo Engel who was the Administrator at the time. Mr. Leary did complete — did come to our classes, was referred on for a 16-week group. The report back from the group was that he, in fact on two occasions, alcohol was smelled on his breath, that ...
Defense counsel objected, saying:
Your Honor, my problem is that Miss Hart is merely a report writer. I don't even know if she had custody of the records that she is reading from. She has never met my client. She has no independent knowledge of the events that have transpired.
The court then said:
Counsellor, I don't mean to cut you short but this is a contempt hearing. If you feel that your client is not in contempt, we'll simply continue the matter and bring in the parties who were involved.
Defense counsel then said:
In that event, your Honor, could I ask for a stay of the suspension of his driving license, suspension due to that?
The court refused to continue the matter and said:
Mr. Leary, it is your duty to attend the program. You will attend the program as devised by the Intoxicated Driver Resource Center. And in order to ensure that, I am going to impose a sentence of 60 days in the Burlington County Jail. That will be suspended on the condition that you attend the program as directed. That's simply an amendment of the original sentence.
No evidence except the quoted, interrupted testimony of Patricia Hart was received by the court prior to making its final disposition. A colloquy concerning restoration of defendant's driver's license took place after the sentence was imposed. In response, the court simply provided the informal assurance that "they will restore his license on compliance."
On appeal to this court, defendant argued that: (1) the State had failed to sustain its burden of proof, and (2) defendant had been denied due process because the IDRC had no published rules nor standards of review, and therefore, acted arbitrarily and capriciously. These contentions must be sustained.
A. The State's Proofs.
The State's proofs in support of the charge of noncompliance were totally inadequate. Perhaps, the records to which the only witness referred could have been introduced into evidence as business records, but no effort was made to introduce them. The State's witness had no personal information about Leary and his supposed noncompliance. She relied, in part, upon her own "interactions" with a former administrator, but that administrator was not the person who reported Leary's failure to complete treatment successfully. He was given no opportunity to cross examine and no opportunity to testify. For these reasons alone, the noncompliance charge against Leary should have been dismissed at the end of the State's case.
The municipal court judge correctly observed that this was a contempt hearing. Consequently, the hearing should not have been conducted by him but by another judge. In Re: Ruth M. Buehrer, 50 N.J. 501, 515 (1967).
It should be noted, although the argument was not made on appeal, that the 60-day suspended sentence imposed by the
[232 N.J. Super. 363]

judge was itself improper. N.J.S.A. 39:4-50(b) requires the following:
The sentencing court [at the time the original sentence is imposed] shall inform the person convicted that failure to satisfy ... [IDRC] requirements shall result in a mandatory two-day term of imprisonment in a county jail and a driver license revocation or suspension and continuation of revocation or suspension until such requirements are satisfied....
Leary was informed of the two-day jail sentence at the time of the original sentence. The municipal court, had the State sustained its burden of proof, was required to impose a two-day jail sentence upon Leary. It could impose no other.
B. The Statute.
N.J.S.A. 39:4-50 provides that a person having a ten percent blood alcohol concentration while operating a motor vehicle shall be subject:
(a)(1) For the first offense, to a fine of not less than $250.00 nor more than $400.00 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers established under Section (f) of this section and, in the discretion of the court, a term of imprisonment of not more than 30 days and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of not less than six months nor more than one year.
It also provides:
(b) A person convicted under this section must satisfy the screening, evaluation, referral, program and fee requirements of the Division of Alcoholism's Intoxicated Driving Programs Unit, and of the Intoxicated Driver Resource Centers and a program of alcohol education and highway safety, as prescribed by the Director of the Division of Motor Vehicles. The sentencing court shall inform the person convicted that failure to satisfy such requirements shall result in a mandatory two day term of imprisonment in a county jail and a driver license revocation or suspension and continuation of revocation or suspension until such requirements are satisfied, unless stayed by court order in accordance with Rule 7:8-2 of the N.J. Court Rules, 1969, or R.S. 39:5-22. Upon sentencing, the court shall forward to the Bureau of Alcohol Countermeasures within the Intoxicated Driving Programs Unit a copy of a person's conviction record. A fee of $80.00 shall be payable to the Alcohol Education, Rehabilitation and Enforcement Fund established pursuant to section 3, P.L. 1983, c. 531 (C. 26:2B-32) to support the Intoxicated Driving Programs Unit.
(f) The counties, in cooperation with the Division of Alcoholism and the Division of Motor Vehicles, but subject to the approval of the Division of Alcoholism, shall designate and establish on a county or regional basis Intoxicated Drivers Resource Centers. These centers shall have the capability of serving as community treatment referral centers and as court monitors of a person's compliance with the ordered treatment, service alternative or community service. All centers established pursuant to this subsection shall be administered by a certified alcoholism counsellor or other professional with a minimum of five years' experience in treatment of alcoholism. All centers shall be required to develop individualized treatment plans for all persons attending the centers; provided that the duration of any ordered treatment or referral shall not exceed one year. It shall be the center's responsibility to establish networks with the community alcohol education, treatment and rehabilitation resources and to receive monthly reports from the referral agencies regarding a person's participation and compliance with the program. Nothing in this subsection shall bar these centers from developing their own education and treatment programs; provided that they are approved by the Division of Alcoholism.
Upon a person's failure to report to the initial screening or any subsequent ordered referral, the Intoxicated Driver Resource Center shall promptly notify the sentencing court of the person's failure to comply.
Required detention periods at the Intoxicated Driver Resource Center shall be determined according to the individual treatment classification assigned by the Bureau of Alcohol Countermeasures. Upon attendance at an Intoxicated Driver Resource Center, a person shall be assessed a per diem fee of $50.00 for the first offender program or a per diem fee of $75.00 for the second offender program, as appropriate.
The centers shall conduct a program of alcohol education and highway safety, as prescribed by the Director of the Division of Motor Vehicles.
The Director of the Division of Motor Vehicles shall adopt rules and regulations pursuant to the Administrative Procedure Act, P.L. 1968, c. 410 (C.52:14B-1 et seq.), in order to effectuate the purposes of this subsection.
C. Rules and Regulations.
The New Jersey Department of Health deals with drunk driving responsibilities through its Division of Alcoholism. The Bureau of Alcohol Countermeasures, previously within the Department of Motor Vehicles, was transferred from that department to the Department of Health, pursuant to the requirements of N.J.S.A. 52:14D. The Intoxicated Driving Program Unit is the administrative unit of the IDRCs serviced by the Bureau of Alcohol Countermeasures.
N.J.S.A. 39:4-50 requires "the Director of the Division of Motor Vehicles ... [to] adopt rules and regulations pursuant to the `Administrative Procedure Act,' P.L. 1968, c. 410 (C.
[232 N.J. Super. 365]

52:14B-1 et seq.), in order to effectuate the purposes of this subsection." The transfer of responsibilities from the Division of Motor Vehicles to Department of Health required the latter to adopt required rules and regulations.
(1) The IDRC Procedures.
Convicted DWI offenders are given two notices setting forth the consequences of their conviction. One, signed by Leary in this case, contains IDRC information. It states:
Defendant must satisfy screening, evaluation, educational or treatment referral, and program requirements of the Bureau of Alcohol Countermeasures and Intoxicated Driver Resource Center. Defendant's failure to attend the I.D.R.C. when notified or failure to satisfy any of the above requirements shall result in license suspension until such requirements are met and 2 days imprisonment in county jail.
Leary also signed a certification at the bottom of the same form which said:
I understand the consequences of failure to meet the requirements of the above-referenced program. I further certify the above-described Defendant information is correct and acknowledge receipt of a copy of and understand this ORDER.
After conviction, Leary reported to an IDRC which apparently operated without any legally enforceable rules and procedures.
IDRCs are expensive. N.J.S.A. 39:4-50(b) requires a convicted DWI defendant to pay a fee of $80 "to the Alcohol Education, Rehabilitation and Enforcement Fund ... to support the Intoxicated Driving Program's Unit." A first offender attending an IDRC is assessed a per diem fee of $50, a second offender, $75. Leary's outpatient counselling sessions presumably were at his expense. The recommended inpatient treatment would have imposed additional costs. Restoration of a suspended license involves a $30 charge.
(2) The Administrative Procedure Act.
The Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., provides for the adoption of rules by state agencies. A "state agency" is defined in N.J.S.A. 52:14B-2(a) as:
Each of the principle departments in the executive branch of the State Government, and all boards, divisions, commissions, agencies, departments, councils, authorities, offices or officers within any such departments now existing or hereafter established and authorized by statute to make, adopt or promulgate rules or adjudicate contested cases, except the office of Governor.
The Department of Health and its divisions, agencies and departments are therefore subject to the act.
N.J.S.A. 52:14B-4(d) provides:
No rule hereafter adopted is valid unless adopted in substantial compliance with this act.
A "rule" is defined in N.J.S.A. 52:14B-2(e) to mean "each agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency." The rules contained in the IDRC policy manual clearly fall within this definition and were required to comply with the Administrative Procedure Act, as N.J.S.A. 39:4-50, the statute creating the IDRCs, expressly provides.
This conclusion is reinforced by the Appellate Division's opinion in Bd. of Ed. of City of Plainfield v. Cooperman, 209 N.J.Super. 174 (App.Div. 1986), in which the court said:
Where the subject matter of an agency determination concerns matters that transcend those of individual litigants and involves matters of general administrative policy, rule making procedures should be invoked. [at 204]
See also Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313, 331 (1984), in which the Supreme Court set forth an analysis of rule-making requirements.
N.J.S.A. 52:14B-4 provides for advance notice of the proposed adoption of rules and for filing with the Senate and the General Assembly. Public notice must be published in the New Jersey Register. Interested persons are to be given an opportunity to submit "data, views, or arguments, orally or in writing." Hearings are required under certain circumstances. No notice of the proposed adoption of any IDRC rules was ever published.
N.J.S.A. 52:14B-7 requires publication of the New Jersey Register, a monthly bulletin, which is to set forth "(1) the text
[232 N.J. Super. 367]

of all rules filed during the preceding month, and (2) such notices as shall have been submitted pursuant to this act." Under certain circumstances, not applicable here, a publication of the rule may be omitted from the register, but an abbreviated notice is still required. The Director of the Office of Administrative Law is obliged to "compile, index, and publish a publication to be known as the `New Jersey Administrative Code' containing all effective rules adopted by each Agency." The IDRC rules do not appear in the New Jersey Administrative Code.
Not only does N.J.S.A. 52:14B-4(d) deny the validity of any rule which has not been adopted in substantial compliance with the Administrative Procedure Act, but N.J.S.A. 52:14B-5(b) also provides that no rule "shall be effective unless it has been deemed to be approved by the Legislature...."
N.J.S.A. 52:14B-4(d) states:
A proceeding to contest any rule on the ground of noncompliance with the procedural requirements of this act shall be commenced within 1 year from the effective date of the rule.
This limitation is not applicable when no notice of the proposed adoption of a rule has been given and no rule has ever been published. See National Assn. of Metal Finishers v. Environmental Protection Agency, 719 F.2d 624, 638 (3 Cir.1983), cited in Bergen Pines Hosp. v. Dept. of Human Services, 96 N.J. 456, 475 (1984) (failure to comment after adequate notice and opportunity to comment). The limiting language of the statute refers to "any rule" and to "the effective date of the rule." It is intended, obviously, to restrict challenges to rules that are "on the books" but adopted without adherence to a technical procedural requirement. In the present case, the Department of Health ignored the requirements of the Administrative Procedure Act, with which it was obliged to comply by the express provisions of N.J.S.A. 39:4-50.
When an agency has failed to comply with the rule-making requirements of the Administrative Procedure Act, its rules
[232 N.J. Super. 368]

must be set aside. Bd. of Ed. of City of Plainfield, 209 N.J. Super. at 207-210 aff'd as mod. on other grounds, 105 N.J. 587 (1987).
Leary claims that the original sentence of the municipal court requiring him to participate in IDRC procedures denied due process. That claim must be sustained. In Town Tobacconist v. Kimmelman, 94 N.J. 85 (1983), our Supreme Court held:
A law is void as a matter of due process if it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. Connally v. General Const. Co., 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed. 322] (1926). [at 118]
Here, the IDRC rules were, and are, nonexistent legally. They are, therefore, more offensive to our constitutions than enactments which are only vague.
It is also apparent that Leary cannot be convicted of noncompliance with IDRC rules which, as a matter of law, did not exist.

Leary's original sentence, insofar as it refers to IDRC requirements, is set aside. He is not guilty of any failure to comply with IDRC rules.