Defendant’s Right to Remain Silent at Sentencing In Municipal Court

It has been a custom is many municipal courts in New Jersey for the judge to turn to the defendant at the time of sentencing and ask the defendant as to his prior driving history.

This often occurs in the context DWI sentences, in which the prosecutor will inform the court that a search of the defendant’s abstract does not reveal any prior driving while intoxicated offenses.  Often the court will than turn to the defendant, whose represented by counsel, rather that is correct, and whether the defendant has been convicted of any DWI offenses in this or any other state. 

I am surprised that in many cases the defense attorney does sits quite without objecting to this line of questioning by the judge.  The defendant at the time of sentencing does not give up his 5^th amendment right to remain silent.  Pursuant to N.J.S.A. 2B:25-5.1 it is the prosecutor’s obligation to research the defendant’s prior driving record and report that information to the court.  Neither, defense counsel, or the defendant has any obligation to waive his  Fifth Amendment right to remain silent, or for the attorney to violate his attorney client privilege with his client to the court.

This blog is prepared as a public service by the Law Office of Vincent J. Sanzone, Jr., Esq., and is not intended to provide any specific legal opinion or advice to anyone reading this blog.

Law Office of Vincent J. Sanzone, Jr., Esq.

P.O. Box 261

277 North Broad Street

Elizabeth, N.J. 07207

CriminalDefensenj.com

Yourcivilrights@gmail.com

 

“If you want peace work for justice.”

New Jersey Now Requires All Police Departments to Have Dashboard, or Dash-Cam MVR Tapes Installed in All Patrol Vehicles

Prepared for the People as a Pubic Service from the Law Office of Vincent J. Sanzone, Jr., Esq.

September 11, 2014, finally Governor Christi signed the Dash-Cam law which will require all New Jersey police departments to install these devices in their patrol vehicles.  These dash-cams, or also known as MVR video recording devices, will video tape everything in front of the patrol vehicle when activated. 

This new law is good news for anyone who is stopped by a police officer, since the video will now video all activity from the vantage point of the patrol vehicle front windshield.  Normally, the device is set up to record back 30-seconds, prior to the activation of the device.  The device continues to record until manually turned off, or the siren or overhead lights are turned off.  Normally, by default, the dash-cam will activate once the overhead and/or siren is activated.  However, the MVR tape can be activated manually, and can also be turned off manually.

Hopefully the new law will prevent police departments and its officers from falsely claiming that the video was not working or not installed in the particular patrol vehicle.  Most often aggressive and dishonest police officers will patrol in patrol vehicles without dash-cam devices for the purpose of making unlawful DWI stops and arrests, claiming that the motorist committed a moving violation and than failed field sobriety tests.  Further, if the sobriety field tests are done in view of the cameras, it might help eliminate perjured police testimony when the officer falsely claiming that the motorist failed the sobriety field tests, when in fact the motorists passed.  Further, the law will now allow a jury to objectively view the dash-cam tape to refute or confirm a police officers allegation that the suspect motorist engaged in eluding of the officers during an automobile stop.

For years most police departments in New Jersey have fought fiercely not to have these devices in their vehicles.  Newark, Jersey City and Elizabeth, to name a few, have refused to install such devices, and none of their patrol vehicles have any of these devices in patrol vehicles.  Further, these MVR tapes will help eliminate police beatings and other abuses of errant police officers, because a patrolman driving a patrol vehicle with such a device will think twice before he commits these types of illegal activities on a motorist. 

Of course some errant and dishonest police officers will find away around this new law by turning off the device, claiming it was inoperable, destroying the tape, or manually turning the device to the side, so that it does not depict the interaction between the motorist and police officer.  Another trick that the dishonest cop will use, which I have seen multiple times with field sobriety tests, the dishonest police officer will move the suspect outside the view of the tape, in which case, the motorist cannot prove that the officer is lying and that he/she passed the field sobriety tests.  Further, if the dishonest police officer wants to engage in an illegal search or beating of the motorist he will move the suspect out of range of the camera, since the cameras view depicts only what transpires in front of the patrol vehicle.  Of course, the dishonest cop (which has occurred repeatedly in many municipal court and superior court cases) will tell the judge and/or jury that they moved the suspect outside the view of the camera for his or the motorists safety, but of course that story is likewise bogus, because the officer can pull his vehicle behind the motorists vehicle in such a way as to give a wide shoulder view of road in which the tests will ultimately be performed.

Lastly, the new law will only be applied to every new or used or leased police vehicle or otherwise acquired on or after the effective date (of this bill) which is primarily used for traffic stops shall be equipped with a mobile video recording system.

Law Office of Vincent J. Sanzone, Jr.

CriminalDefenseNJ.com

Elizabeth, N.J.

Tel. No. (908) 354-7006

Dated: September 11, 2014

Union Essex, Hudson, Morris, Bergen, Middlesex, Ocean, Monmouth, County Criminal Defense Attorney, Jersey City, Newark, Elizabeth, New Brunswick, Eluding, Carjacking, Drugs, Guns, Weapons, Assault

Appellate Division Held Boro of Princeton Police Officer Could Not Open Car Door of Motorist that Appeared to Be Falling Asleep While Vehicle was Parked and Idling.

Prepared as a Public Service to the People by Vincent J. Sanzone, Jr.

In State v. Bennett the appellate division rejected under the caretaker exception of the warrant requirement to open the car door to a motor vehicle that was parked and idling to investigate a possible DWI. 

The defendant vehicle was parked in front of a convenience store near Princeton University in the early Sunday morning (2:43 A.M.).  The police officer suspecting that the motorist had been drinking approached the motor vehicle and opened the door.   The officer ordered the defendant out of the vehicle and requested that the defendant perform field sobriety tests, which the officer alleged he had failed.  At the station the defendant refused to submit to a breath test.

The motion to suppressed was granted by the trial court, however, the law division judge reversed and held that under the caretaker exemption the officer had the duty to investigate whether the defendant was intoxicated.  However, in a published opinion the appellate division reversed the law division and held that the caretaker exemption was not applicable here and that the officer overstepped his authority by immediately ordering the motorist out of his vehicle.

This case affirms well established case law that the opening of an automobile door without probable cause, or reasonable articulable suspicion, or after a valid automobile stop for a motor vehicle infraction, is unlawful.  Note, an officer may request a motorist to exit the motor vehicle after a motor vehicle stop.  What makes this case unique is that the first thing that the police officer did was open the door, and order the motorist out.  If he had asked him to roll down the windows, and further facts indicated that the motorist was intoxicated, than the police officer could have ordered the motorist out to perform field sobriety tests.

As the court in Bennett held, the officer should have knocked on the window, and first determine whether the motorist had alcohol on his breath before requesting that the motorist exit the vehicle.

Law Office of Vincent J. Sanzone, Jr., Esq.

CriminalDefenseNJ.com

277 North Broad Street

Raymond Building

P.O. Box 261

Elizabeth (Union County), N.J. 07207

(908) 354-7006

Union County Criminal Defense Attorney Protecting the Rights of the Criminally Accused for 23-Years.  Practice devoted exclusively to criminal law.

Driving While Intoxicated; Refusal to Submit to Breath Test; Field Portal Breath Testing; Leads to Possible Affirmative Defense under the Confusion Doctrine

Prepared as a Public Service to the People by Attorney Vincent J. Sanzone, Jr., Esq.

More and more local police departments are using portable field breath testing devices for probable cause to arrest DWI /DUI suspects.  Although the New Jersey Supreme Court has not approved such  devices, and they are not admissible in court to prove probable cause or the offense of driving while intoxicated or impaired.  However,  more and more police department are using these machines to test suspect’s breath at the scene of the motor vehicle stop.  For years the Coast Guard and New Jersey State Police have been using these devices to test operators of vessels and boats in New Jersey waterways for probable cause to arrest the boater.  However, not until recently are these devices being used by more local police departments.

The use of these portable breath machines at the scene, pre-arrest, might be fertile ground for the affirmative defense under the confusion doctrine.  Under established New Jersey law a defendant who is confused regarding whether he can remain silent (i.e., after being given his/her Miranda rights), and whether because of said rights he must submit to the breath test at the station can raise some interesting issues.  Under State v. Leavitt, 107 N.J. 534, 542 (1987), the New Jersey Supreme Court addressed this issue.    Normally, refusal to submit to the alcohol breath machine (Alcotest), at the station cannot be justified, and someone who refused to submit to the test will be charged with refusal which carries the same penalties and driving while intoxicated.  However, the Supreme Court has held that it is possible, under the right fact pattern, for the defendant, to offer the affirmative defense of confusion, under very limited circumstances, if applicable to the facts of the case. 

This doctrine of confusion seems to be more relevant than before based on the fact that police officers who use the portal machines at the scene to test breath might be creating confusion on the part of the motorist.  For example if the motorist submits to the portable test and is arrested, and than given his Miranda rights to remain silent.  Such actions on the part of the police might cause confusion on the part of the motorist who again is asked to submit to a (station house official Alcotest) test, after he/she has already been given his Miranda rights to remain silent.  By requesting the motorist to submit too a second  test, one at the scene, and one at the station has the potential in creating confusion on the part of the motorist, who, in most cases because of the consumption of alcoholic beverages might have less  cognitive ability to begin with. 

In a recent case in Union County, the use of the two machines did create confusion on the part of the motorist who was arrested for both DWI, and refusal.  Because the motorist submitted to the portable test at the scene, arrested, then given his Miranda rights to remain, silent, and then asked to submit to a second test at the station, created a mix which lead, in that case to the dismissal of the refusal charge, and the defendant having plead only to the none-per se, 3-months loss of license DWI charge.  In that case the culmination of these facts caused the defendant to be confused and had no intent to refuse the test at the station.  Because the prosecutor looking at the facts fairly and objectively recognized the problem, and realized that in good faith that he could not prove the refusal beyond a reasonable doubt, and accepted the plea.

 

If you have been arrested or charged for DWI or driving while impaired you are advised to seek the consultation and retention of an experienced criminal defense attorney Vincent J. Sanzone, Jr., Esq., (CriminalDefenseNJ.com) who has many years of experience in defending people accused of this serious motor vehicle defense.

Your decision in choosing a New Jersey criminal defense lawyer is important, make that choice wisely.  I invite you to look at the proven results of Attorney Sanzone. CriminalDefenseNJ.com

Law Office of Vincent J. Sanzone, Jr., Esq.

P.O. Box 261

277 North Broad Street

Elizabeth (Union County), New Jersey 07207

Tel: (908) 354-7006

YourCivilRights@gmail.com

“Justice” in the Red Bank New Jersey Municipal Court; Is there a double standard in the Red Bank Municipal Court for Police Officers?

Presented to the People as a Public Service from the Law Office of Vincent J. Sanzone, Jr., Esq.

On May 14, 2007, Red Bank municipal court judge, William Himelman (case was transferred to Red Bank for possible conflict) found the Wall Township Police Chief, Bernard Sullivan not guilty of driving while intoxicated.  The evidence against the police officer, as testified by the arresting officer, was that the chief was driving recklessly by failing to maintain lane, going through a red light, reckless driving and failing a breathalyzer test, blowing double the legal limit.  Sullivan admitted having four to five beers when stopped, but contested that he failed the field sobriety tests that were administered to him at the scene.

After the verdict the Star Ledger quoted Red Bank Municipal Prosecutor James N. Butler as saying he was shocked by the judge’s decision, and stated, “To me, it set the criminal justice system back a long way, because what it said is, Don't arrest a cop.” 

In the judge’s oral decision he stated, "I didn't see (Sullivan) staggering, I didn't see him falling, I saw him walking around," Himelman said. "What I saw on that surveillance tape was a man who had five beers, not someone who had 10 beers."  However, as this judge knows whether someone can handle their liquor is no defense to a DWI charge, and rarely if ever, will a municipal court judge find a defendant not guilty when he fails the field sobriety tests?  Sullivan’s failure on the field sobriety tests was also witnessed by superior officer Lancellotti who was called to the scene.

Further, the municipal court judge completely ignored the testimony of Patrolman Verrecchia who testified that when he pulled Sullivan over at 12:35 a.m. after he saw Sullivan's car, headed north on 16th Avenue in the West Belmar section of town, run a red light at Route 35, nearly colliding with a car on the highway.  Further, he testified that Sullivan continued across Route 35 and headed up Belmar Boulevard toward his Wall home on the wrong side of the road until Verrecchia pulled him over near Marconi Road, Verrecchia testified.

Further, the municipal court judge completely ignored officer Verrecchia testimony that Sullivan breathalyzer reading was for the first test .19 and for the second test, .20 (double the legal limit for that time).

According to the Asbury Park Press interview of the judge after the verdict, Himelman was not embarrassed to say that it was the first not guilty verdict he has made in the last five years in a DWI case while sitting on the bench in Red Bank. I wonder how many individuals were found guilty in Red Bank by him and how many lost their jobs because of their loss of a driver's license?

This unfortunately is not an isolated incident and further reinforces the need for municipal courts in New Jersey to be consolidated in joint municipal courts in which a number of towns join their municipal courts into a joint municipal court.  Further, that these joint municipal court judges be appointed by the governor as Governor Christi has proposed. Not only will this save taxpayers money, by consolidation, but also eliminate some of the conflict of interest, which is rampant in municipal courts throughout the state.  Specifically, because the municipal court judge receives his or her paycheck from the town in which he must generate revenue, and hence, the inference that he or she must find everyone guilty to generate revenue.  Or as this judge admitted never find anyone not guilty in the last five years in every DWI case, except in one case in which an law enforcement is charged with DWI, notwithstanding all the evidence against the police officer?  Nobody is questioning the integrity of the municipal court judge in this case, however, it surly makes you wonder.  Is there any justice in municipal court in Red Bank?

Law Office of Vincent J. Sanzone, Jr., Esq.

P.O. Box 261

277 North Broad Street

Elizabeth (Union County), New Jersey 07207

(908) 354-7006

CriminalDefenseNJ.com

Monmouth, Essex, Union, Middlesex, Bergen, Hudson, Somerset County Criminal Defense Attorney, NJ Criminal Lawyers, NJ Criminal Defense Lawyers

The City of Elizabeth New Jersey and Criminal Law

Prepared as a Public Service by the Law Office of Vincent J. Sanzone, Jr., Esq.

The City of Elizabeth (Union County)New Jersey according to the 2012 census had a documented population of 126,458 people.  Because of the large population of undocumented and illegal residences the City of Elizabeth population is likely doubled that amount to a population of a quarter-million.

The city is the home of many immigrants from South and Central American countries including the largest being from Columbia.

The City of Elizabeth is has it share of street crimes ranging from homicides, drive-by-shootings, to petty thefts and burglaries. 

Because the City of Elizabeth is known for its high-end and glamorous Latin night clubs the City of Elizabeth attracts young Hispanic men and women from throughout the New Jersey and New York Metropolitan areas.

With this large influx of young party people brings also its share of crimes, which range from assault, date-rape, controlled dangerous substances charges (CDS), sexual assault, DWI, DUI, eluding, fighting, disturbing the peace, resisting arrest, hindering apprehension and other disorderly persons or felonies.

The police in the City of Elizabeth are also known for being aggressive and are known to not deescalate but escalate every encounter.  Further, unlike most major cities off-duty Elizabeth police officers moon-lite in the cities nightclubs, which cause additional problems when an argument ensues between a club bouncer and a patron.  In most cases if the bouncer starts to beat a patron, the off-duty officer will take the bouncers side or simple join in the beating.  Therefore, typically, in the City of Elizabeth, when a fight starts and the police are summoned, be prepared for a resisting arrest, or assault on an officer charge. 

If you have been caught-up in a party night in the City of Elizabeth which has lead to your arrest call the Law Office of Vincent J. Sanzone, Jr., it might be the best decision you make.

Law Office of Vincent J. Sanzone, Jr.
P.O. Box 261

277 North Broad Street

Elizabeth, N.J. 07207

Office:   (908) 354-7006

Cell:     (201) 240-5716 (24/7 emergencies)

Quote of the Day: “There is no crueler tyranny than that which is perpetuated under the shield of law in the name of justice.”  Charles De Montesquieu