So what did the machine decide to do about their little problem? They tried to use their superior muscle and keep Ms. Ferrante-Rivera off of the ballot.
The machine filed a petition challenge against Ms. Ferrante-Rivera, despite the fact that her petition was valid in form and contained almost double the number of signatures needed for nomination. New Jersey election law provides that a challenge to an independent nominating petition will be heard by a hearing officer appointed by the county clerk. In this case, the hearing officer was a former Superior Court judge who has over three decades experience in election law. After a three hour hearing, the hearing officer ruled that the petition was valid, and that Ms. Ferrante-Rivera would appear on the ballot in the general election.
]]>District Five is based in Hoboken and contains a portion of the Jersey City Heights. Two reform-minded Democrats from Hoboken ran against a candidate backed by the Hudson County Democratic Organization. Turnout was very high in the Hoboken portion of the district, but low in the Heights for most of the day.
]]>Mayor Kalaka-Adams filed for a recount. Together with the Sea Bright GOP Chair, she pored through election records, and were stunned to find that several non-resident voters had voted, enough to have tipped the balance of the election. Furthermore, she had received reports that at least one registered voter had been denied access to the polls. As such, she decided to file an election challenge.
Mayor Kalaka-Adams was facing a very worthy adversary. Her election opponent had brought in the services of Hill Wallack, a firm listed by politickernj.com as the seventh most powerful law firm in New Jersey. Appearing from Hill Wallack was Paul Josephson, Esq., former counsel to the governor, and one of the top most effective and most ethical election law attorneys in the state. Ms. Kalaka-Adams came to Howes & Howes to handle the election challenge.
Our opponent raised a procedural issue to try to defeat the challenge. There is a rarely-used and ancient provision of the election laws which requires a $500 bond to be posted when someone files an election challenge petition. Mayor Kalaka-Adams stood ready, willing and able to post the $500. Nevertheless, the opponent made a motion to dismiss the case on the grounds that Mayor Kalaka-Adams did not post the $500 with the petition.
Following briefing and argumentation, the court denied the motion, holding that “(t)he draconian remedy of dismissal of a petition challenging an election result bacause no bond or surety has been posted at the outset belies sixty plus years of higher court precedent.”
The court’s decision will allow the case to proceed to trial, where the court will be able to determine whether non-resident voters voted, and whether two legal voters were improperly rejected. At trial, the court can (1) uphold the election; (2) order a new election; or (3) rule that Mayor Kalaka-Adams was the winner.
]]>And in the end, 98% of divorce cases settle.
As a result of these trends, many informed couples are turning to private mediation. In mediation, a professional mediator, usually an attorney, meets with the couple to discuss how to handle the different issues raised by the dissolution of their marriage. The mediator works with the couple on issues of custody and visitation, equitable distribution of property, alimony, child support, etc.
The couple and mediator work with one goal: To reach a fair agreement between the parties as to how to divide obth the parental rights and the property rights. If mediation is successful, then the parties avoid bitter and costly divorce litigation where the only real winners are the attorneys.
Katherine Howes brings nearly two decades matrimonial law experience to the mediation table. She was first trained in dispute resolution as a law clerk for Assignment Judge Edward W. Beglin. She served as a municipal court judge for two terms. She has served for seven years as a member of the Somerset County Matrimonial Early Settlement Panel. In April 2008, she completed the 40 hour extensive divorce mediation program offered by the New Jersey Association of Professional Mediators.
All mediations will be handled in complete privacy and will be conducted with the highest degree of civility and professionalism.
]]>The courts must first notify all defendants whose cases have been put on hold.
Those defendants must appear in the municipal court with their attorney. The prosecutor must complete certain technical calculations on a worksheet designed by the Supreme Court. The prosecutor, the defense attorney and the defendant must then appear before the municipal court judge who must then re-check the calculations. This process must take place on the record, and not in the prosecutor’s conference room. Once this process is complete, the court can then determine the final disposition of each individual case.
The long wait is finally over for defendants. They can now learn what will happen to their long-pending DWI cases
]]>For whatever reason, DYFS under the Corzine administration has decided that it does not like dual representation. In recent years, DYFS has filed formal legal objections when parents choose to use the same attorney for the DYFS litigation and for related criminal proceedings. DYFS objects on the basis that a DYFS defense attorney will have acces to privileged and confidential DYFS whereas a criminal defense attorney would not.
Their objection overlooks one very important point: The parent in both proceedings is the same parent, and as such would be entitled to see and hear all of the DYFS record, and would be free to tell their criminal defense attorney what they learned in their DYFS case.
Courts in different counties have ruled different ways in different cases.
A recent Bergen County trial court decision has muddied the waters even more. In a published decision in DYFS v. JC, the Law Division accepted DYFS’s argument, and ruled that dual representation was inappropriate in that case. The JC decision is a published decision. However, it remains to be seen whether other trial courts will follow it. At some point, the Appellate Division needs to step in to clarify what up to this point is an unsettled question.
]]>In State v. Sloane, the trial court denied a motion to suppress. The motion was based on the following fact pattern: “The police properly stopped a motor vehicle after confirming that its driver did not have a valid license. They later rans a check on the passenger in the National Crime Information Center (NCIC) database, which resulted in his arrest on outstanding warrants. Police found crack cocaine on him during a search incident to arrest.” (Quoting from Supreme Court opinion.) After the conviction, Sloane appealed.
The New Jersey Supreme Court held that during a motor vehicle stop, the passenger, like the passenger is subject to an NCIC lookup. The court reasoned that the NCIC lookup is part of a routine motor vehicle stop, and that police do not need a reasonable suspicion before they may access the NCIC database. The NCIC check is permissible so long as it does not unreasonably extend the time of the stop. The high court directed that when law enforcement officers elect to conduct an NCIC check, they should act with dispatch to avoid prolonging a stop for more than a brief period of time.
The NCIC computer is an effective tool for law enforcement. It allows police to identify and detain dangerous fugitives. It reveals information about missing persons, wanted persons and persons with criminal records and outstanding warrants. What does this mean to an average citizen? It means that if you are a passenger in a car that is stopped by the police, the police can require you to provide identification for a brief background check. The legal and constitutional question is how will the police implement this procedure? This is not the last we will hear about this procedure.
]]>Our client was arrested for DWI and refusing to provide a breath sample. Was he intoxicated? Yes, he and a friend had gone out to dinner and to socialize and our client had consumed alcohol. Did he have two prior convictions for DWI? Yes, he had two youthful indiscretions. Did he give breath samples to the police? No, he did not. Was he guilty of anything? Absolutely not.
The municipal court found our client not guilty of driving while intoxicated because we proved at trial that he was not operating the motor vehicle under New Jersey law. The police found our client asleep in the front seat of his car. The motor was not running. The gas tank was empty. At trial, we produced two witnesses. One was our client’s friend, who testified that he had driven the car, and that the car had run out of gas. Once the car ran out of gas, the friend took a taxi home and left our client asleep in the car. The second witness was the taxi driver who drove the friend home. As such, he had not operated the motor vehicle.
The municipal court found, however, that our client was guilty of refusing to provide a breath sample. When you are convicted of an offense in municipal court, you have the right to appeal to the Criminal Division of the Superior Court. Your case is heard by a Superior Court judge sitting in the county courthouse. The judge decides the case based on the transcript of the trial in the municipal court and any evidence entered into evidence in the municipal court.
We raised two issues on appeal. One was that our client was not given clear and unambiguous notice of the consequences that arise from a failure to provide breath samples. New Jersey law provides that by taking the wheel of a car, a New Jersey motorist gives his or her implied consent to give breath samples if a police officer has probable cause to ask for breath samples. In order to prove a violation beyond a reasonable doubt, the prosecutor must prove that the police gave the defendant such notice. In our case, the Superior Court held that since the state did not produce at trial the form allegedly used by the police to explain the consequences, that the State had not proven the defendant guilty of refusal.
The consequences of a conviction in this case would have been devastating. The ten-year suspension of his driving privilege would have cost him his livelihood. It is almost impossible in New Jersey to function without a car and a driver’s license because in this mostly suburban state, there is precious little public transportation. Not all cases end the way we might want them to end, but in this case we got the right result because the client was not guilty and was willing to trust the system and trust his attorney.
]]>Our client was arrested for DWI and refusing to provide a breath sample. Was he intoxicated? Yes, he and a friend had gone out to dinner and to socialize and our client had consumed alcohol. Did he have two prior convictions for DWI? Yes, he had two youthful indiscretions. Did he give breath samples to the police? No, he did not. Was he guilty of anything? Absolutely not.
The municipal court found our client not guilty of driving while intoxicated because we proved at trial that he was not operating the motor vehicle under New Jersey law. The police found our client asleep in the front seat of his car. The motor was not running. The gas tank was empty. At trial, we produced two witnesses. One was our client’s friend, who testified that he had driven the car, and that the car had run out of gas. Once the car ran out of gas, the friend took a taxi home and left our client asleep in the car. The second witness was the taxi driver who drove the friend home. As such, he had not operated the motor vehicle.
The municipal court found, however, that our client was guilty of refusing to provide a breath sample. When you are convicted of an offense in municipal court, you have the right to appeal to the Criminal Division of the Superior Court. Your case is heard by a Superior Court judge sitting in the county courthouse. The judge decides the case based on the transcript of the trial in the municipal court and any evidence entered into evidence in the municipal court.
We raised two issues on appeal. One was that our client was not given clear and unambiguous notice of the consequences that arise from a failure to provide breath samples. New Jersey law provides that by taking the wheel of a car, a New Jersey motorist gives his or her implied consent to give breath samples if a police officer has probable cause to ask for breath samples. In order to prove a violation beyond a reasonable doubt, the prosecutor must prove that the police gave the defendant such notice. In our case, the Superior Court held that since the state did not produce at trial the form allegedly used by the police to explain the consequences, that the State had not proven the defendant guilty of refusal.
The consequences of a conviction in this case would have been devastating. The ten-year suspension of his driving privilege would have cost him his livelihood. It is almost impossible in New Jersey to function without a car and a driver’s license because in this mostly suburban state, there is precious little public transportation. Not all cases end the way we might want them to end, but in this case we got the right result because the client was not guilty and was willing to trust the system and trust his attorney.
]]>Over the years, some municipal courts have developed a practice of allowing to serve their jail terms through the Sheriff’s Labor Assistance Porgram ("S.L.A.P"). In response, the Conference of Presiding Judges of the Municipal Courts considered the practice. The Conference concluded that the provisions of a SLAP program cannot and must not extend to persons convicted of a Third or subsequent DWI offense. The Conference’s finding was applied to the individual municipal courts through directives from the presiding judges in each county.
In State v. Kotsev, the defendant was convicted of DWI for a third time. He was sentenced to jail. He requested that the court allow him to serve some of his jail tim in the SLAP program. The municipal court denied his request, holding that the directive of the Presiding Municipal Court Judge prohibited such a sentence. Kotsev appealed the judgment of the municipal court to the Superior Court.
When the Superior Court ruled on the appeal, it upheld the judgment of the municipal court. Kotsev argued that the directive was unconstitutional. The Superior Court disagreed and ruled that the directive does not violate either the New Jersey or the United States constitution. As a result, the practice of using SLAP in lieu of jail sentences for third and subsequent offenders is in serious doubt.
Howes & Howes closely monitors appellate decisions in our areas of practice so that we can provide the best possible representation to our clients.
]]>a. The duration of the marriage or civil union;
b. The age and physical and emotional health of the parties;
c. The income or property brought to the marriage or civil union by each party;
d. The standard of living established during the marriage or civil union;
e. Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;
f. The economic circumstances of each party at the time the division of property becomes effective;
g. The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage or civil union;
h. The contribution by each party to the education, training or earning power of the other;
i. The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;
j. The tax consequences of the proposed distribution to each party;
k. The present value of the property;
l. The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;
m. The debts and liabilities of the parties;
n. The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;
o. The extent to which a party deferred achieving their career goals; and
p. Any other factors which the court may deem relevant.
Cherry Hill had passed an ordinance prohibiting offenders from living within 2,500 feet of any school, park, religious institution or similar place where children might gather. The penalties for a violation included imprisonment, community service and fines.
Two Cherry Hill men were prosecuted and convicted in municipal court for violating the ordinance. They appealed to the Superior Court. The Superior Court judge who heard the appeal held that Megan’s Law pre-empts the ordinance, and that the ordinance was overly broad. That is, he found that it was an extreme intrusion on the rights of offenders and punished offenders a second time for their crimes.
Howes & Howes certainly understands need to prosecute sexual offenders, and supports the protection of victims and of the public. However, we can meet the needs of public safety rationally and without sending former sexual offenders to the modern equivalent of leper colonies. Many offenders offended deep in the past, have paid their debt to society and have gone on to lead productive lives in their jobs and with their families.
The ruling invalidates the Cherry Hill ordinance at issue. It does not invalidate other ordinances. However, the decision casts doubt on whether other municipalities will be able to enforce similar ordinances. It was a courageous decision.
]]>Among those recommendations were:
1. The use of a breath temperature sensor by the state.
2. A downward adjustment of 6.58% downward adjustment to all BAC readings until the breath temperature sensor is put in use.
3. Communication of data obtained from alcotest units to a central database on a periodic basis.
4. A minimum air sample of 1.2 liters for women over the age of 60 and a general 1.5 liters of air requirement for the remainder of the population.
5. A listing of the foundational documents required for admissibility of the Alcotest results, said documents to be admitted as business records.
6. A tolerance range among the 4 readings produced by 2 tests that would be “tightened” to a range of 10% of the average of the 4 readings.
These are all crucial recommendations that could effect thousands of existing D.W.I. cases in New Jersey. The report is not law. It is subject to review by the New Jersey Supreme Court after written comments from the legal teams involved. Howes & Howes represents motorists charged with D.W.I. in all New Jersey courts. We will continue to monitor these breaking develpments.
]]>In a recount, the County Board of Elections reviews the voting machines and the election materials in the presence of the interested parties, then re-tabulates the votes. In Flemington’s case, it is a fairly simple operation because there are only three voting districts in the borough, and there were just over one thousand votes cast.
Ms. Luster’s goal in filing for the recount is to ensure that every borough voter who went to the polls on Election Day and cast a legal vote has that vote counted properly.
Quite often the vote totals change as the result of a recount, which leaves open three possiblities: (1) That Ms. Luster is still a losing candidate; (2) that the candidates are tied; and (3) that Ms. Luster is the winning candidate. The recount is nothing more than a re-tabulation of the vote. If there are legal questions following the recount, then those issues go to a Superior Court Judge in the form of an election contest petition.
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