Fall 2011 Municipal Court Law Review

Revised 1/25/12

1. DP May Require Forfeit of Public Office. State v. Kennedy 419 NJ Suer. 4!" #$.
Div. %&11'

The offense of tampering with phsical evidence is !an offense involving dishonest"!
which re#uires the forfeiture of pu$lic office or emploment under %&'&(&)& 2C*51+2,a-,1-&
%. Ne( )*ert +e,ti-ony Require, +e,ti-ony of $ccetability and Reliability. State v.
Pitt-an 419 NJ Suer. ".4 #$. Div. %&11'
%ew 'erse has not considered the admissi$ilit in a criminal case of the results of the
phenolphthalein presumptive test for the presence of $lood on a person or o$.ect or an other
presumptive test utili/ed for that purpose& %onetheless" in this case" evidence of a positive
result was introduced" without o$.ection" $ a police detective with no prior e0perience in
conducting the test and no understanding of how it functioned or of the possi$ilit of false
positive results occurring as the result of the presence of su$stances other than $lood& The
court found the introduction of the test results to constitute reversi$le error" and in the course
of our discussion of the issue" canvassed precedent from other states discussing the
conditions for admissi$ilit of the phenolphthalein test and other presumptive tests for the
presence of $lood&
/. Denial of 0ri-inal Motion, doe, not bar OPR$ Reque,t. Kovalci1 v. So-er,et
0ounty Pro,ecutor2, Office %&3 NJ ".1 #%&11'

The .udgment is affirmed to the e0tent that it concluded that the police and prosecutor
office documents are not e0empt as protected $ an order of confidentialit& The .udgment is
reversed to the e0tent that it held that the documents are also not e0empted personnel
records& That aspect of the matter is remanded to the trial court for further proceedings
during which the parties shall $e given an ade#uate opportunit to marshal sufficient proofs as
the nature of the contents of the particular documents and the specific educational
re#uirements for emploment as a detective in the 1rosecutor2s 3ffice to ena$le the court to
appl the statute in accordance with the analsis the Court has set forth&
4. Police did not Require 4arrant for 0ell P5one Site. State v. )arl, 4%& NJ Suer. "./
#$. Div. %&11'

The use of cell phone site information" o$tained $ the police without a warrant from a
suspect4s cell phone provider to determine his general location" does not violate the Fourth
)mendment or its counterpart in the %ew 'erse Constitution $ecause a person has no
constitutionall protected right of privac in his general location on roadwas or other pu$lic
places&
". No )*cetion to Searc5 4arrant for 6Nui,ance $bate-ent.7 State v. Kaltner 4%& NJ
Suer. "%4 #$. Div. %&11'
There is no $road !nuisance a$atement! e0ception under the communit careta5ing
doctrine to the general rule that warrantless entries into private homes are presumptivel
unreasona$le& 6n assessing the constitutional tolerance of entr into and search of a home in
response to a noise complaint" we emplo the !o$.ectivel reasona$le test"! $alancing the
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nature of the intrusion necessar to handle the perceived threat to the communit careta5ing
concern" the seriousness of the underling harm to $e averted" and the relative importance of
the communit careta5ing concern&
The court holds the test was not met where police officers" responding in the earl
morning hours to a noise complaint" lawfull entered the home" $ut thereafter fanned out and
searched the entire residence for someone in control" while other less intrusive options were
availa$le and no compelling need was presented&
3. 8n9ured D48 driver not barred fro- Suein: +avern for Dra- S5o ;iolation. ;o,, v.
+ranquilino %&3 NJ 9/ #%&11'

The .udgment of the )ppellate 7ivision is affirmed su$stantiall for the reasons
e0pressed in 'udge Lisa2s opinion&
The $ar to litigation in %&'&(&)& 89*:)+;&5,$- can coe0ist with the 7ram (hop )ct2s
deterrence and lia$ilit+imposing principles& )n into0icated person is deterred from driving
drun5 $ losing the right to sue under Title 89 for insurance coverage for his in.uries& 3n the
other hand" permitting an in.ured drun5 driver to file an action against a li#uor esta$lishment
and its servers for serving a visi$l into0icated patron similarl advances the goal of deterring
drun5 driving& 6n allowing the latter form of action to proceed" rather than $arring it $ %&'&(&)&
89*:)+;&5,$-" the application of esta$lished principles of comparative negligence will apportion
properl the responsi$ilit for damages as $etween dram shop parties and the in.ured driver&
!. D; Rever,ed (5ere 0ourt Per-itted +e,ti-ony of $ct, not ,et fort5 in 0o-laint.
J.D. v. M.D.F & %&! NJ 4".

%&'&(&)& 2C*88+; a& re#uires proof of a single communication that was made
anonmousl" at an e0tremel inconvenient hour" or in a coarse or offensive language" for the
purpose to harass and in a manner li5el to cause annoance or alarm& (u$section c&
re#uires proof of a course of alarming conduct or repeatedl committed acts with the purpose
of alarming or seriousl annoing the victim& 7istinguishing $etween acts that constitute
harassment for purposes of domestic violence and those that are ordinar domestic
contretemps can $e difficult& (uch a determination ma depend on the second in#uir
re#uired for complaints under the )ct&

7ue process re#uires that a part in a .udicial hearing receive notice defining the issues
and an opportunit to prepare& 6t for$ids the trial court from converting a hearing on one act of
domestic violence into a hearing on other acts that are not alleged in the complaint& Trial
courts should use the allegations in the complaint to guide their #uestions" and avoid inducing
plaintiffs to a$andon that histor in favor of new accusations&
%ot all offensive or $othersome $ehavior constitutes harassment& <ere" the trial court did
not identif which su$section of the harassment statute it was appling& The evidence is not
sufficient to support a finding under su$section a& $ecause merel $eing outside of the home
in the morning hours is not harassment and '&7& was unaware he was outside until R&T&
alerted her" after which he $eat a hast retreat&
.. Defendant S5ould $,,ert Seedy +rial on De Novo $eal. State v Mi,urella 4%1 NJ
Suer "/. #$. Div. %&11'
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6n this appeal from a 7=6 conviction" the (tate concedes that the right not to $e
su$.ected to unreasona$le dela applies to an appeal" see (tate v& Le Furge" 222 %&'& (uper&
92" 9> ,)pp& 7iv&-" certif& denied" 111 %&'& 5:> ,19>>-" and therefore" to a trial de novo in the
(uperior Court& The court applied the factors esta$lished in ?ar5er v& =ingo" ;0@ A&(& 51;" 92
(& Ct& 21>2" 88 L& Bd& 2d 101 ,19@2-" and concluded that defendant4s speed trial right was
not violated $ a @9>+da dela from the time he filed his notice of appeal in the Law 7ivision
under R& 8*28 until a trial de novo was actuall held&
9. +e*t Me,,a:e, bet(een Parent, Not $uto-atically <ara,,-ent. =.M.F. ;S. J.$.F.
4%1 NJ Suer "%/ #$. Div. %&11'
6n this appeal from a final domestic violence restraining order" the court applied the
principles articulated $ the Court in '&7& v& M&7&F& %&! NJ 4". ,2011-" and concluded the trial
court erred in finding the predicate offense of harassment& The parties are divorced parents&
The used te0t messaging as the primar means of e0changing information a$out their two
children& The domestic violence complaint alleged harassment $ased on defendant sending
plaintiff eighteen te0t messages over a three+hour period& The content of the messages was
not threatening or menacing in an wa& The court also held there was insufficient evidence of
a histor of domestic violence to su$stantiate that a restraining order was necessar to
prevent further a$use as re#uired under (ilver v& (ilver" 8>@ %&'& (uper& 112 ,)pp& 7iv& 200:-&
1&. Per,onal >,e Doe, not Per-it ?ro(in: Medical Mari9uana. State v. 4il,on 4%1 NJ
Suer /&1 #$. Div. %&11'
The principal issue in this is case is whether the personal use defense for
manufacturing a controlled dangerous su$stance" %&'&(&)& 2C*85+2" applies to the growing of
mari.uana under %&'&(&)& 2C*85+5& )fter reviewing the relevant statutor language" as well as
the purpose for the personal use e0emption" we affirm the trial court4s determination that there
is no personal use e0emption for growing mari.uana&
11. =ab Reort Not $d-i,,ible in D48 0a,e. @ullco-in: v Ne( Me*ico 1/1 S. 0t. %!&"
No. &9A1&.!3. Decided June %/B %&11
The (i0th )mendment2s Confrontation Clause gives the accused CDin all criminal
prosecutions" & & & the right & & & to $e confronted with the witnesses against him&E 6n Crawford v&
=ashington" 5;1 A& (& 8:" 59" this Court held that the Clause permits admission of
CDtestimonial statements of witnesses a$sent from trial & & & onl where the declarant is
unavaila$le" and onl where the defendant has had a prior opportunit to cross+e0amine&E
Later" in Melende/+7ia/ v& Massachusetts " 55@ A& (& FFF" the Court declined to create a
Cforensic evidenceE e0ception to Crawford" holding that a forensic la$orator report" created
specificall to serve as evidence in a criminal proceeding" ran5ed as CtestimonialE for
Confrontation Clause purposes& )$sent 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
report2s statements&

The Confrontation Clause" the opinion concludes" does not permit the prosecution to
introduce a forensic la$orator report containing a testimonial certification" made in order to
prove a fact at a criminal trial" through the in+court testimon of an analst who did not sign
the certification or personall perform or o$serve the performance of the test reported in the
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certification& The accused2s right is to $e confronted with the analst who made the
certification" unless that analst is unavaila$le at trial" and the accused had an opportunit"
pretrial" to cross+e0amine that particular scientist&
1%. =auric1 Motion Require, Pri-a facie 0a,e for Relief. State v. 4eil $. Div. %&11B
$C"999C&9+4B decided July "B %&11B >nubli,5ed.

6n this appeal" defendant urged the court to revisit (tate v& ?ringhurst" ;01 %&'& (uper&
;21 ,200>-" and hold" in essence" that a defendant who files a Lauric5 post+conviction relief
petition to o$tain relief from enhanced penalties for driving while into0icated $ased on a
purported uncounseled prior 7=6 conviction is a$solved from esta$lishing a prima facie case
for relief where her time dela has resulted in destruction of most of the records pertaining to
the prior conviction& The court declines to do so and affirm defendant4s conviction&
Anpu$lished&
Bditorial )ssistance provided $ )ssociate Bditor Christian Gera and Matthew (heptuc5&
Mr& Gera will $e entering his 8
rd
ear at %ew Hor5 Law (chool& Mr& (heptuc5 will $e entering
his 2
nd
ear at Ieorgetown Aniversit Law Center&
6%7BJ
1. DP May Require Forfeit of Public Office. State v. Kennedy.
%. Ne( )*ert +e,ti-ony Require, +e,ti-ony of $ccetability and Reliability. State v.
Pitt-an.
/. Denial of 0ri-inal Motion, doe, not bar OPR$ Reque,t. Kovalci1 v. So-er,et
0ounty Pro,ecutor2, Office.
4. Police did not Require 4arrant for 0ell P5one Site. State v. )arl,.
". No )*cetion to Searc5 4arrant for 6Nui,ance $bate-ent.7 State v. Kaltner.
3. 8n9ured D48 driver not barred fro- Suin: +avern for Dra- S5o ;iolation. ;o,, v.
+ranquilino.
!. D; Rever,ed (5ere 0ourt Per-itted +e,ti-ony of $ct, not ,et fort5 in 0o-laint.
J.D. v. M.D.F&
.. Defendant S5ould $,,ert Seedy +rial on De Novo $eal. State v Mi,urella.
9. +e*t Me,,a:e, bet(een Parent, Not $uto-atically <ara,,-ent. =.M.F. ;S. J.$.F.
1&. Per,onal >,e Doe, not Per-it ?ro(in: Medical Mari9uana. State v. 4il,on.
11. =ab Reort Not $d-i,,ible in D48 0a,e. @ullco-in: v Ne( Me*ico.
1%. =auric1 Motion Require, Pri-a facie 0a,e for Relief. State v. 4eil.
1hoto te0t for fall 2011 mun law
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+5e $@$ ?eneral Practice Divi,ion ,on,ored t5e oular ro:ra- )lder =a(B ),tate
Plannin: D ProbateC Ne( 8dea, to )*and D )*cel Eour Practice at t5e +oronto $@$
$nnual Meetin:.
(pea5ers* Kenneth )& Gercammen" Bs#& " Catherine (eal" 1arag 1atel" Bs#&
C7 with forms and Materials were provided to all attendeesL
Could not attendF Need for-,F
Send e-ail to ;erca--en=a(Gn9la(,.co- and indicate )lder la( for-,
needed.
Kenneth Gercammen in Toronto with Charles Bnglish of )?) ?oard of Iovernors and )?)
B0ecutive 7irector 'ac5 L& Rives
1rofessor Iar )& Munne5e was awarded the )?)2s (amuel (& (mith )ward for e0cellence in
law practice management& This is the highest honor $estowed $ Law 1ractice Management
(ection L1M" to an individual who has demonstrated outstanding lifetime achievement in the
field of law practice management&
(outhside 'ohnn M the )s$ur 1ar5 'u5es entertained over 8"000 persons at ?ar
)nticipation in con.unction with =F)% and Mi5e Francesa
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