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Law Offices Of James A. Abate
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When the world is at your door, we've got your back.
When the world is at your door, we've got your back.

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Jersey City's requirement that applicants for firearms purchases provide more information than is required by New Jersey's gun control statutes is improper and cannot be enforced, a state appeals court has ruled. This may be the first of several defeats for second amendment violations. The United States Supreme Court is currently weighing the appeal in Drake v. Jerejian, a case that could result in greater availability of concealed carry permits in New Jersey.

Municipal Court Session Recordings Obtainable by OPRA, Judiciary Says
Mary Pat Gallagher
02/28/2014
NJLJ

Recordings of municipal court proceedings must be disclosed under the Open Public Records Act, regardless of what use the requester in...tends to make of them.
The state judiciary made that clear after Logan Township balked at turning over a recording sought by an open government activist and blogger, John Paff, over concern he would post it online.
Carole Cummings, the municipal division manager for Gloucester County, emailed Paff last Wednesday, stating the sound recording is a matter of public record and he has the option of listening to it at the court office or getting his own copy.
"Whether or not you choose to post the sound recording to the internet is at your discretion," she wrote. "The Judiciary offers no opinion either way."
Paff's OPRA request, submitted on Feb. 11, asked for the audio recording from the Feb. 5 court session that pertained to summonses issued to Carl Washington Jr., a Penns Grove councilman.
Washington was cited last September for driving while suspended and using a cell phone. In 2012, he had received a 10-day jail sentence and $1,000 fine for driving while suspended, the penalty provided by law for a third offense, after which a license can be revoked.
A warrant for Washington's arrest was issued in December after he failed to appear on the Logan summonses.
When the matter was eventually heard, court records show that the driving while suspended charge was reduced to driving without a license in his possession and the minimum fine for the cell phone violation was imposed.
Paff says that when he learned that Washington walked out with only a $131 fine, $33 in costs and a $25 "miscellaneous" fee, he wanted to know if the downgrade was warranted or if Washington got special treatment because of connections.
The same day Paff made the OPRA request, he posted about Washington's case on one of his blogs, Random Notes on NJ Government (http://njrandomgovt.blogspot.com/2014/02/penns-grove-councilman-guilty-of-lesser.html).
The blog entry links to documents Paff obtained though OPRA requests: the driving while suspended summons, the prior conviction, and records regarding the disposition and arrest warrant.
Paff has also posted about Washington on the nj.com local forum for Penns Grove.
He says Logan Township officials wanted him to promise he would not post the court proceedings online but his position was, "it's either public or not public."
Municipal Trial Court Administrator Lori Zane left Paff a voicemail saying she had conferred with the "municipal division" regarding whether he could post the recording on social media and he should contact state judiciary Communications Director Winnie Comfort.
Paff sent Comfort an email on Feb. 21 with links to his blog and a recording of Zane's phone message.
Comfort responded within the hour that she had spoken to vicinage personnel and he would be hearing from them shortly.
Cummings' letter followed five days later.
Paff then called Zane, who informed him that she will be mailing him a CD with the recording.
"It seems obvious that the audio recordings would be public, but it's never been made clear until now," Paff remarks.
He adds that once he has had a chance to listen to the recording he will blog about it and post a link to it.
Comfort cites Rule 1:38 and a court directive on public access to court records as the authority for her response to Paff.
"It really was a matter of just clearing up a simple question of the sort we get from staff, reporters and the public all the time," she says.
According to Cummings, there was no question about turning over a copy of the CD with the recording, only about whether it could be posted to the Internet.
Washington says the charge was downgraded because by the time he appeared in court, his license had been restored and he got no special treatment.
Logan prosecutor John Moustakas did not recall the specifics of Washington's case but he agreed that license restoration by the court date will result in a lower charge. "I will downgrade if you show me paperwork from the [Motor Vehicle] Commission," he says. "Typically, that's how it's done."
Jon-Henry Barr of Clark, president of the municipal prosecutors association, says his view and that of most prosecutors, is that if the period of license suspension is over but the suspension remains in effect because a driver has not filled out the necessary paperwork to restore the license, a downgrade like Washington's is appropriate and even common. But if there is still an active suspension in place, "that's one hell of a generous plea."
Paff is a Somerset businessman, who has filed hundreds of record requests over the years and dozens of lawsuits over denials, including one that led to a 2010 New Jersey Supreme Court ruling that OPRA requires disclosure of settlements of discrimination suits against public entities.

Know any high schoolers looking to make some extra Xmass cash?  We need some help addressing Xmass cards to our clients, business contacts and people we just plain like.

The New Jersey Supreme Court has agreed to consider whether admitting a police report into evidence in a drunken driving case violates a defendant's rights to due process and to confront adverse witnesses. The court agreed to hear an appeal in State v. Kuropchak, in which the defendant was convicted of drunken driving after Garfield Municipal Court Judge Charles Daglian allowed in evidence the police report, including an officer's narrative of the defendant's arrest, without the officer's appearance in court.

Daglian's routine practice is to admit such reports as substantive evidence before any sworn testimony, but doing so places the court's imprimatur on prejudicial hearsay documents.
The court will also consider whether the defendant's Alcotest readings in the case were improperly admitted based on the state's failure to satisfy a requirement for three foundation documents attesting to the machine's calibration, and whether officers' observations of the defendant's actions were sufficient to convict her.

Under State v. Chun, 194 N.J. 54 (2008), in which the Supreme Court declared the Alcotest reliable, the state must introduce three documents in each case where the machine's readings are introduced into evidence—the Calibration Report, the New Standard Solution Report, and the Certificate of Analysis of the .10 Simulator Solution. Kuropchak was charged after a head-on crash with another car on a street in Garfield. The arresting officer found she was capable of touching her finger to her nose but failed two other sobriety tests, in which she was asked to balance on one leg and to walk in a heel-to-toe manner. She gave breath samples on an Alcotest machine and produced two readings of .10.

Because it was Kuropchak's third conviction, Daglian sentenced her to 180 days in jail, 10 years' suspension of her driving privileges, an ignition interlock on her vehicle for three years after her license is restored, and various fines and penalties.

After a trial de novo before Superior Court Judge Edward Jerejian, the conviction was upheld and the same sentence imposed. Without elaboration, Jerejian said the evidence supported the state's contention that it presented the three foundational documents.
Before the Appellate Division, Judges Susan Reisner and Richard Hoffman expressed "reservations" about whether the Calibration Report and Certificate of Analysis presented by the state were properly admitted. But they affirmed the conviction based on the officers' observations of the defendant's conduct on the night of her arrest. Feinstein, a solo in Clifton, appealed to the Supreme Court and on Tuesday the court announced it would hear the case, saying it will consider the questions of whether it was "error to admit the documentary evidence and the Alcotest results" and whether "the observational evidence [was] sufficient to sustain the conviction."
In the petition to the Supreme Court, counsel  says the Garfield municipal judge's practice of admitting police reports "goes to the very heart of the concept of a fair trial by an unbiased and detached jurist." Such actions carry a presupposition by
Daglian that the reports are inherently reliable, and reveal a bias toward the testimony of police officers.
Assistant Bergen County Prosecutors

Earlier this year, the United States Supreme Court held that police need a warrant before taking blood evidece (McNeely v. Minnesota). Yesterday, the New Jersey Supreme Court heard argument in State v. Verpent, as to whether post McNeely that the Police require a warrant before taking urine from a defendant. (Verpent actually precedes McNeely).

The facts in Verpent were that police waited 4 hours before taking urine, but claimed that they did not seek warrant due to an exigency. Thus, the issue was whether the lack of an exigency required police to get a warrant.  While McNeely was not truly implicated, it was raised by the Court.

 If the Court finds that the privacy concerns of taking urine from a defendant are more invasive than a breath test (which most defendants would agree) then the potential exists for New Jersey to require a warrant for urine in light of McNeely. The court may punt on this as it does not directly involve McNeely and require a warrant where there is no exigency, leaving the question of whether McNeely should apply to all urine tests for another day.

James Abate has been granted admission to the National College of DUI Defense. The National College for DUI Defense®, Inc. (NCDD) is a professional, non-profit corporation dedicated to the improvement of the criminal defense bar, and to the dissemination of information to the public about DUI Defense Law as a specialty area of law practice. College members represent the most experienced DUI defense attorneys in the country. The original Founding Members funded the establishment of the college, and are among the top DUI practitioners in the United States. Since its founding, the College continues to recognize, as Sustaining Members, defense lawyers who have demonstrated the skill and experience of the original Founding Members, as well as the generosity to financially sustain the growth of the NCDD. General Members are the backbone of the college—capable, experienced attorneys who dedicate a portion of their practice to the defense of DUI cases throughout the country.
When the National College for DUI Defense® was founded, the Board of Regents envisioned a Board Certification program as the culmination of its program of education. In 1999, the Board instituted Board Certification as a means of recognizing lawyers within the college who exemplify the program’s standards, and who meet the criteria established by the Board of Regents: extensive experience trying DUI cases and litigating pre-trial issues, a broad knowledge of the science involved in testing for intoxicants, and a command of the legal process on which DUI cases are framed.

A federal judge in Newark on Monday dismissed a products liability suit over the Alcotest, New Jersey's DWI tester, finding it barred under a federal-court abstention doctrine.
U.S. District Judge Jose Linares held the suit, Johnson v. Draeger Safety Diagnostics, seeks to overturn the New Jersey Supreme Court's finding that the device is reliable.
Bobby Johnson and Edwin Aguaiza, both convicted of drunken driving based on Alcotest evidence, sued on behalf of a class of themselves and other New Jersey residents similarly convicted.
They claimed the Alcotest has a design defect—namely, it has no means to calibrate measurements of how long suspected drunken drivers blow into it.
They also alleged that Hansueli Ryser, vice president of manufacturer Draeger Safety Diagnostics, gave false testimony about the device to a special master in State v. Chun, 194 N.J. 54 (2008), the case that established Alcotest's scientific reliability for use in New Jersey DWI cases.
The complaint included counts of design defect under the Product Liability Act and common law fraud.
Linares agreed with Draeger that the suit falls under the Rooker-Feldman doctrine, which bars a federal court suit where the claim was actually litigated in a state court or is inextricably intertwined with the state litigation.
For a claim to be barred under Rooker-Feldman, the plaintiff must have lost in state court and complained of injuries from a judgment there, the judgment must have been rendered before the federal suit was filed, and the plaintiff must have asked the federal court to review and reject the state judgments.
Linares said a finding that the Alcotest contains a defect "would effectively prevent the enforcement of the state court's orders upon which plaintiffs' criminal convictions were based."
The plaintiffs were thus seeking an impermissible rehearing of their criminal cases in federal court, he said.
Linares also rejected a motion by Draeger, the manufacturer, which sought sanctions against plaintiff lawyer Ashton Thomas, of Elizabeth, claiming he unreasonably multiplied the proceedings. Linares found Thomas' actions did not constitute bad faith.
Thomas says he is considering an appeal of the dismissal, noting that Chun made no reference to the Product Liability Act. "I can't see any way a quasi-criminal case can bar a product liability case," says Thomas.
Jeffrey Gold, a drunken-driving defense lawyer in Cherry Hill, says the lack of a constitutional claim distinguishes Johnson from a case where a federal judge is asked to revisit a state ruling.
Draeger, of Irving, Texas, was represented by Stephen Orlofsky of Blank Rome in Princeton, who declines to comment.
The Attorney General's Office is expected to replace the Alcotest by 2016, since Draeger will warranty the device only until then.
In September, the Supreme Court declined a request by the defense bar to immediately retire Alcotest based on the state's alleged failure to implement software changes and create a database of readings. The court found no evidence the state willfully refused to comply.

Yesterday we received another great result for one of our clients in Springfield Municipal Court who faced a 1 year suspension and became eligible for a 1 month suspension.  Our client was observed speeding by 29 miles over the speed limit and was found to be intoxicated by a local officer.  Upon investigating the case, we determined that the standardized field sobriety tests had been performed improperly as our client was asked to walk and turn and do the one legged stand in high heels. Upon review of the police report, we determined that it was dubious whether the defendant was observed for the required 20 minutes.  Additionally, it was dubious that the Alcotest operator had changed the mouth piece. The result was that the prosecutor agreed to suppress the chemical breath test results. Since my client had not reached the age of 21 (and their was no breath test) she became eligible for the juvenile DWI sentence of 1 month.

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