Archive for April 2010

NEW JERSEY LAWYERS CONSIDER RECENT NJ SUPERIOR COURT , APPELLATE DIVISION, DECISION EXCLUDING EVIDENCE FROM TRIAL ON CONSTITUTIONAL GROUNDS INVOLVING THE PROTECTION AGAINST UNREASONABLE SEARCH AND SEIZURE.

A recent holding by the Superior Court of New Jersey, Appellate Division, interpreted the New Jersey Constitution to require exclusion of evidence obtain by an unreasonable search and seizure. The case involved a local police dispatcher who did not act reasonably when providing incomplete and inaccurate information to an arresting officer. The result is a reversal of the conviction of a defendant convicted of possession of cocaine and marijuana. The Court further found that whether the arresting officer relied in good faith on the information received from the dispatcher, it is not a relevant consideration as New Jersey does not recognize a good faith exception to the exclusionary rule as is recognized by the federal courts including the United States District Court for the District of New Jersey. According the decision: “If the citizen’s right to be free from unreasonable search and seizure is to be vindicated, then the exclusionary rule must be applied beyond the officer in the field and to the police employee who acts unreasonably in supplying critical, but inaccurate or incomplete information under the circumstances such as those before us.”

Legal Quote of the Week:

It is by the promise of an occult sense of power that evil often attracts the weak. Eric Hoffer, American philosopher W.H. Auden and Louis Kronenberger, The Viking Book of Aphorisms, 1962

NEW JERSEY LAWYERS REVIEW NJ SUPREME COURT OPINION DEFINING THE PARAMETERS OF THE CLERIC-PENITENT PRIVILEGE FOR ADMISSION OF EVIDENCE IN A CRIMINAL TRIAL BEFORE THE SUPERIOR COURT OF NEW JERSEY.

According to the New Jersey Supreme Court, a Judge of the Superior Court of NJ must consider the totality of the circumstances, and not the subjective beliefs of the participants, before deciding whether to admit or exclude evidence in a criminal trial under the cleric-penitent privilege. The evidentiary privilege should apply if, after consideration of all the circumstances, an “objectively reasonable” person would conclude that the conversation was confidential when made to a cleric and in the cleric’s professional character or role as a spiritual advisor.

In the case beforethe Court, a defendant allegedly admitted his role in an assault to a cleric outside of the church doors with the pastor claiming that he was not acting as a spiritual advisor at the time of the conversation. Other circumstances, however, caused the Court to conclude that the evidentiary privilege applied and therefore excluded any evidence of the communication.

Legal Quote of the Week:

He is an ingenious counsel who has made the most of his cause; he is not obliged to join it.

Samuel Johnson

James Boswell, The Life of Samuel Johnson, 1791

NEW JERSEY LAWYERS REVIEW RECENT STATUTORY AMENDMENTS TO THE STATE OF NJ DRUNK DRIVING LAWS.

Acting-governor Corzine signed into law recently the provisions of “Ricci’s Law”, a series of amendments to the state’s drunk driving laws that require a first offender and people who have been convicted of a refusal offense meet the requirements of the Ignition Interlock Device statute (N.J.S.A. 39:4-50.16). That statute permits a judge to order either the use of an interlock device or the suspension of the defendant’s registration privileges. In addition, use of the device on vehicles principally driven by the offender will be mandatory for violations for all refusal statute (N.J.S.A. 39:4-50.4a) and for those defendants with a blood alcohol level of 0.15% or greater.

Legal Quote of the Week:

The glorious uncertainty of the law was a thing well known and complained of, by all ignorant people, but all learned gentlemen considered it as its greatest excellency.

Richard Brinsley Sheridan, Parliamentary Historian, 1820

NEW JERSEY LAWYERS PONDER RECENT UNITED STATES SUPREME COURT OPINION REQUIRING A DEFENDANT TO BE INFORMED OF THE CONSEQUENCES OF A GUILTY PLEA INCLUDING THE POTENTIAL FOR DEPORTATION FROM THE UNITED STATES FOLLOWING A CONVICTION FOR A CRIMINAL OFFENSE.

Deportation for convicted felons in the state courts of New Jersey and the United States District Court for the District of New Jersey are a routine part of the consequences of a plea of guilty. Before a Judge of the Superior Court of New Jersey or a District Judge of the United States District Court can accept a plea of guilty, the Judge must find that the defendant is entering the plea knowingly, voluntarily and intelligently. As part of that process, the United States Supreme Court recently held that deportation is a major consequence of a conviction and, as such, counsel must inform his or her client whether his plea carries a risk of deportation in order for the defendant to receive effective assistance of counsel under the Sixth Amendment to the United States Constitution. In the case before the Court, the defendant was misinformed that the plea would not result in deportation.

A recent case decided by the New Jersey Supreme Court interpreted the NJ Constitution to require a similar mandate for guilty pleas. As a result, the standard plea forms in New Jersey Superior Court have been amended to comport to the requirements of that decision.

Legal Quote of the Week:

The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.

David Davis, American jurist, Ex Part Milligan, 71 U.S. (J4 Wall) 2, 120-121 (1866)