POST – CONVICTION RELIEF

CRIMINAL LAW AND PROCEDURE — POST-CONVICTION RELIEF

14-2-7407 State v. Hall, App. Div. (per curiam) (10 pp.) Defendant appeals from the denial of his petition for post-conviction relief . On September 25, 2000, pursuant to a plea agreement, defendant, a Jamaican national, pled guilty to two counts of first-degree armed robbery. On June 8, 2010, defendant filed a PCR petition, alleging counsel was ineffective because he failed to warn defendant about the deportation consequences of his guilty plea. The PCR judge denied the PCR request without a hearing, concluding defendant’s petition was time-barred.The PCR judge did not consider the merits of defendant’s request. On appeal, defendant argues his PCR request was not time-barred because the immigration consequences of his plea were not revealed until his 2009 release from prison, followed by the effectuation of the immigration detainer. He then consulted with counsel who advised he was subject to deportation based upon his prior guilty plea.

The record demonstrates that when the five-year filing deadline elapsed, defendant had no reason to suspect his attorney had potentially rendered ineffective assistance by failing to advise him of the deportation consequences of his guilty plea. Not until defendant was taken into custody by ICE in 2009, upon release from state custody, did he realize the consequences of his guilty plea and the possible deficiencies of his attorney’s performance. Concluding these are exceptional circumstances warranting a delay in the filing of the PCR petition, the appellate panel reverses and remands for an evidentiary hearing. \

Source – NJSBA Daily Briefing

DRUNK DRIVING — SPEEDY TRIAL

CRIMINAL LAW & PROCEDURE — DRUNK DRIVING — SPEEDY TRIAL

14-2-7618 State v. Vanderkooy, App. Div. (18 pp.) Defendant challenges his convictions for driving while intoxicated, refusal to take a breathalyzer test, and speeding in the Law Division at a trial de novo based on the record developed in the municipal court.

The panel affirms, finding that:

  1. defendant was not denied his right to a speedy trial where both parties are responsible for various delays, whether due to scheduling conflicts, discovery delays, or requesting a Frye hearing, the amount of time elapsed is mostly due to the Frye hearing, and defendant did not prove prejudice sufficient to warrant a speedy trial violation;
  2. defendant was not denied the requested discovery regarding the radar gun or the State’s radar gun expert;
  3. the State presented sufficient evidence of the scientific reliability of the Stalker Dual SL radar device used by police;
  4. there was sufficient evidence in the record of the operator’s training and testing of the radar device to admit the radar reading into evidence;
  5. defendant cannot establish that the municipal court judge or trial judge erred in finding the police officer’s testimony credible; and
  6. based on the officer’s observations and defendant’s conduct, it is clear that probable cause to arrest existed and the State established beyond a reasonable doubt that he is guilty of DWI.

Source – NJSBA Daily Briefing

CRIME VICTIMS GET GREATER ROLE IN PROSECUTION OF THEIR CASES

New Jersey has enacted a law giving victims greater involvement in the prosecution of criminal cases, especially in the plea-bargaining process. The law, signed Tuesday, supplements an existing bill of rights by allowing victims to attend judicial or juvenile proceedings concerning the crime and to appear in any proceedings that implicate their rights. It also gives them standing to file a motion or to present argument on a motion filed by someone else in order to enforce their rights.

They will have a right to consult with the prosecution before any plea agreement can be reached, and the prosecutor must inform the court about the conversation and say whether the victim approves of the plea deal.

Source – NJSBA Daily Briefing

DECALS FOR YOUTHFUL DRIVERS

COURT UPHOLDS LAW REQUIRING DECALS FOR YOUTHFUL DRIVERS

Unless New Jersey lawmakers decide otherwise, drivers under age 21 will continue to have to display little red decals on their license plates if they want to remain street legal. The state Supreme Court on Monday, in Trautmann v. Christie, A-16-11. upheld “Kyleigh’s Law,” finding the decal requirement does not violate the federal Driver’s Privacy Protection Act or federal and state constitutional guarantees of privacy and equal protection and against illegal searches and seizures.

The law, which took effect May 1, 2010, also sets limits on the number of passengers in youthful drivers’ cars and generally bars such drivers from the road between 11 p.m. and 5 a.m.

Source – NJSBA Daily Briefing

CRIMINAL LAW AND PROCEDURE

14-2-7046 State v. Barfuss, App. Div. (per curiam) (12 pp.) Defendant appeals from the Law Division order denying his post-sentence motion to vacate his guilty plea to Driving Under the Influence (DUI). defendant contends that he should be allowed to vacate the guilty plea because the factual basis in support of his plea was inadequate to prove that he “operated” the vehicle as required by the DUI statute. The appellate panel agrees and reverses. The record does not contain any evidence that defendant made any “physical movement to put the car in motion” at the time.

Unable to find any New Jersey cases upholding a conviction for DUI for having the keys in one’s pocket and a future intent to drive home without any corroborating physical attempt to move the vehicle, the panel concludes that the facts articulated by defendant did not provide an adequate factual basis for his guilty plea. After balancing the four Slater factors, the panel finds that defendant has met his burden and is entitled to withdraw his guilty plea and have the charges reinstated to correct a manifest injustice.

Source – NJSBA Daily Briefing

CRIMINAL LAW AND PROCEDURE – EXPUNGEMENTS

14-1-6924 In re Kollman, Petition for Expungement, Sup. Ct. (Rabner, C.J.) (32 pp.) Defendants seeking relief under the statute’s new five-year pathway to expungement have the burden of proving why expungement of a criminal record is in the public interest. Because petitioner appears to have met that burden, the court reverses the denial of his expungement application and remands to the trial court to assess the petitioner’s character and conduct as of the date of its new ruling.

Source – NJSBA Daily Briefing