http://www.njcases.com/index.php/ NJ Legal Beat en tim.howes@njcases.com Copyright 2008 2008-06-26T13:54:00-05:00 http://www.njcases.com/folio/former_two_term_councilwoman_beats_back_ballot_challenge_by_little_ferry_de/ http://www.njcases.com/folio/former_two_term_councilwoman_beats_back_ballot_challenge_by_little_ferry_de/#When:14:54:00Z Howes & Howes client Debbie Ferrante-Rivera is the ideal candidate for Little Ferry Borough Council.  She is bright, experienced, independent and energetic.  Perhaps that is why the local political machine is afraid of her.  The Little Ferry Democrats challenged her petition to run as an independent.  After a full hearing, Ms. Ferrnate-Rivera’s petition was upheld.  She will be on the ballot in November. The Little Ferry Democratic machine has a unanimous vice-lock on the local government.  However, on June 3, 2008, they found out that they had a problem.  On the filing deadline, independent candidates filed to run for borough council.  These independents were a threat because one of them was Debbie Ferrante-Rivera, a former two-term councilwoman and a former member of the Democratic Party.  All of a sudden their monopoly was in jeopardy.  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. NJ Legal Beat 2008-06-26T14:54:00-05:00 http://www.njcases.com/folio/hudson_county_judge_to_oral_argument_in_freeholder_recount/ http://www.njcases.com/folio/hudson_county_judge_to_oral_argument_in_freeholder_recount/#When:15:48:00Z Two of the three candidates in the Democratic Primary for Hudson County Freeholder, Fifth District were mystified by the results.  Each filed a petition for a recount of the election.  The Hudson County Superior Court will hear oral argument on Friday on the issue of whether the losing candidates are entitled to a recount. In Hudson County, the Democratic nomination for freeholder is tantamount to winning the general election.  Indeed, this year there are no Republican nominees for any of the nine freeholder seats.  The Hudson County Board of Chosen Freeholders is divided into nine districts throughout the county.  There were hotly contested Democratic primaries in all nine districts. 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. 2008-06-19T15:48:00-05:00 http://www.njcases.com/folio/superior_court_rules_that_sea_bright_challenge_will_continue/ http://www.njcases.com/folio/superior_court_rules_that_sea_bright_challenge_will_continue/#When:13:53:00Z Former Mayor Jo-Ann Kalaka-Adams’ challenge to the result of the 2007 general election will proceed to trial.  The opponent had filed a motion to dismiss Mayor Adams’ petition due to a perceived procedural technicality.  The Superior Court judge hearing the case ruled that the case will continue forward.  The voters of Sea Bright will now have a chance to see justice done. The Borough of Sea Bright is a charming beach town along the Monmouth County shore line.  Jo-Ann Kalaka Adams served one successful term, and sought a second one in the November 2007 general election.  The race ended in a near-tie on election night.  The phone calls came in the days following the election raised the spectre that Mayor Kalaka-Adams actually won the election. 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. NJ Legal Beat 2008-06-10T13:53:00-05:00 http://www.njcases.com/folio/the_shape_of_things_to_come_howes_howes_to_offer_divorce_mediation/ http://www.njcases.com/folio/the_shape_of_things_to_come_howes_howes_to_offer_divorce_mediation/#When:14:48:00Z Howes & Howes partner Katherine Howes offers a new service, one founded on nearly two decades matrimonial experience.  As a professional divorce mediator, Ms. Howes will help separating couples settle their divorce in a confidential setting without expensive litigation.  Watch for updates to this website for informative articles on mediation. Divorce mediation is the way of the future.  Overwhelmed New Jersey family courts do an admirable job to keep up with a very high volume of work, with diligent judges often staying into the night.  The demands on family court judges to handle burgeoning domestic violence dockets and ever-increasing DYFS litigation limit the amount of resources that courts dedicate to divorce trials. 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. NJ Legal Beat 2008-04-30T14:48:00-05:00 http://www.njcases.com/folio/new_jersey_dwi_update_alcotest_cases_must_now_proceed/ http://www.njcases.com/folio/new_jersey_dwi_update_alcotest_cases_must_now_proceed/#When:16:52:00Z The New Jersey Supreme Court has made a ruling in State v. Chun.  The Alcotest breath testing device used in New Jersey has been deemed to be reliable.  All cases that were previously stayed (placed on hold) while the Supreme Court decided the Chun case must now be heard promptly in the municipal courts, and those special cases must follow a certain procedure outlined by the Administrative Office of the Courts. On March 17, 2008 the New Jersey Supreme Court ruled that the Alcotest breath testing device is scientifically reliable to measure blood alcohol content, subject to certain conditions.  Tens of thousands of DWI cases statewide were on hold while the Supreme Court decided the Chun case.  Those cases must now be brought to a conclusion in the municipal courts and done according to a procedure published on March 31, 2008 by the Administrative Office of the Courts. 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 NJ Legal Beat 2008-04-03T16:52:00-05:00 http://www.njcases.com/folio/dual_representation_in_dyfs_cases_and_criminal_cases_what_is_the_right_answ/ http://www.njcases.com/folio/dual_representation_in_dyfs_cases_and_criminal_cases_what_is_the_right_answ/#When:15:59:00Z Many times parents face two parts of the legal system simultaneously when they face DYFS litigation and criminal prosecution for the same actions.  Often parents will choose to use the same attorney for both the criminal matter and the family court matter.  DYFS has objected to the practice of dual representation in parallel or companion proceedings, and courts in different counties have made different rulings.  A recent trial court decision out of Bergen County is the latest installment. Unless you are Governor Corzine, or someone of his stature, it is usually too costly to hire a team of attorneys to handle your legal problems.  What has worked best for clients when navigating the treacherous shoals of the legal system is to have one competent and trustworthy attorney to guide and advise the client.  There have been many instances where a parent has been served (1) by DYFS with a civil lawsuit, AND (2) with a criminal complaint or indictment by law enforcement.  Most people of ordinary means choose to have one attorney handle both matters. 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. NJ Legal Beat 2008-04-03T15:59:00-05:00 http://www.njcases.com/folio/constitutional_law_update_nj_court_expands_police_powers_to_run_background_/ http://www.njcases.com/folio/constitutional_law_update_nj_court_expands_police_powers_to_run_background_/#When:16:22:00Z On February 11, 2008, the New Jersey Supreme Court decided the case of State v. Sloane.  The high court’s decision expanded police powers to run background checks on the passengers of vehicles involved in a routine motor vehicle stop.  The high court ruled that police do not need a reasonable suspicion to access the NCIC database to check the criminal background of passengers.  This decision has the potential to change how New Jersey police conduct motor vehicle stops.  How will New Jersey police use this new authority? The New Jersey Supreme Court routinely hears appeals of criminal cases involving the New Jersey and United States Constitutions.  When a person charged with a crime believes that the police violated his or her constitutional rights, he asks his attorney to bring a Motion to Suppress Evidence.  (See our article on this subject) When the trial court hears the motion, it determines whether the police violated the defendant’s rights.  If the trial court determines that the police did not violate anyone’s rights, the motion is denied.  When a motion to suppress evidence is denied, it is subject to review on appeal. 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. NJ Legal Beat 2008-02-12T16:22:00-05:00 http://www.njcases.com/folio/howes_howes_client_wins_dwi_case_on_appeal/ http://www.njcases.com/folio/howes_howes_client_wins_dwi_case_on_appeal/#When:15:11:00Z One of the many clients that Howes & Howes represented over the past year was a young man who was facing his third DWI as well as a summons for refusing to take a breat test.  At trial, the municipal court found the client not guilty of driving while intoxicated, but found him guilty of refusing to provide a breath sample.  We appealed.  The Law Division granted the appeal, and found the client not guilty of refusal. One of the most severe penalties meted out by the municipal courts in New Jersey are the penalties upon a third conviction for driving while intoxicated.  There are severe financial penalties, but the punishment that hurts the most are the 10 year suspension of New Jersey driving privileges and 180 days in jail.  One of the clients that Howes & Howes represented in the past year was facing the grim prospect of those harsh penalties.  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. NJ Legal Beat 2008-01-31T15:11:00-05:00 http://www.njcases.com/folio/howes_howes_client_wins_dwi_case_on_appeal1/ http://www.njcases.com/folio/howes_howes_client_wins_dwi_case_on_appeal1/#When:15:11:00Z One of the many clients that Howes & Howes represented over the past year was a young man who was facing his third DWI as well as a summons for refusing to take a breat test.  At trial, the municipal court found the client not guilty of driving while intoxicated, but found him guilty of refusing to provide a breath sample.  We appealed.  The Law Division granted the appeal, and found the client not guilty of refusal. One of the most severe penalties meted out by the municipal courts in New Jersey are the penalties upon a third conviction for driving while intoxicated.  There are severe financial penalties, but the punishment that hurts the most are the 10 year suspension of New Jersey driving privileges and 180 days in jail.  One of the clients that Howes & Howes represented in the past year was facing the grim prospect of those harsh penalties.  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. 2008-01-31T15:11:00-05:00 http://www.njcases.com/folio/dwi_update_use_of_slap_instead_of_jail_sentence_is_illegal/ http://www.njcases.com/folio/dwi_update_use_of_slap_instead_of_jail_sentence_is_illegal/#When:15:53:00Z Sitting as an appeals court, the Passaic County Superior Court has ruled that courts may not use the Sheriff’s Labor Assistance Program (SLAP) to satisfy a jail sentence imposed on a third offense D.W.I..  It is not clear whether there will further appeals on this issue that effects hundreds of cases statewide each year. If a driver is convicted in New Jersey of driving while intoxicated for a third time, there are some very serious penalties (see the “Frequently Asked Questions” article on this website.) Among those serious penalties is a mandatory jail term.  Upon conviction, either after a trial or a guilty plea, the court must sentence the defendant to a mandatory 180 day jail sentence. 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. 2007-09-05T15:53:00-05:00