Saturday, December 29, 2012

New Jersey considers decriminalization of small amounts of marijuana

Assembly Bill No. 1465 and Senate Bill No. 1977 seek, respectively, to decriminalize the possession of 15 grams (approximately a half ounce) or less and 50 (approximately two ounces) or less of marijuana.  Under the Senate version of the bill, those who possess 50 grams or less are subject to a $50 civil penalty.  Under the Assembly version, possessors of 15 grams or less are subject to civil penalties of $150 for the first offense, $200 for the second offense and $500 for the third and subsequent violations.  The Assembly version also requires that adults who offend three or more times attend a "drug education program." 

Under both measures, those who possess paraphernalia, such as rolling papers, shall be subject to a $100 civil penalty. Also, under both versions, it will no longer be against the law to be under the influence of marijuana nor would people who possess the newly established limit or less be required to deliver it to the nearest law enforcement officer.  Further, a person who drives a vehicle while in possession of the newly established limit or less shall no longer be subject to a two-year driver license suspension.

The penalties will be collected in the municipal court and kept by the municipality.  Unlike criminal offenses, where the state must prove guilt beyond a reasonable doubt, the state only has to meet a "preponderance of the evidence" standard--the burden in civil cases--to collect the penalties.

A-1465 passed the General Assembly on June 25, 2012 by a vote of 44 "Yes" to 31 "No" with 2 abstentions and 3 members not voting.  I built a table showing how each Assembly member voted, which is on-line here

Both versions of the bill now are in the Senate Judiciary Committee.  The committee chairman, Nicholas P; Scutari is one of the sponsors of S-1977.




Friday, December 28, 2012

Somers Point Enforcing Ordinance it Repealed Over 20 Years Ago

Here is my letter to the Atlantic County Municipal Division Manager.

December 28, 2012

Tina Lalena, Municipal Division Manager
Atlantic County Superior Court
4997 Unami Blvd
Mays Landing, NJ 08330  (via e-mail only to tina.lalena@judiciary.state.nj.us)

Dear Ms. Lalena:

From researching records of the Somers Point Municipal Court, I have discovered that the court, on April 17, 2012, accepted a guilty plea to a violation of of a municipal code provision that the City repealed in 1991.

On-line here is the summons/complaint issued in 2011-SC-5252.  Following the summons/complaint is a "request of approve plea agreement" form.  The summons/complaint and the plea agreement form indicate that the defendant pled guilty to Ordinance "3 of 1973" for "causing annoyance and alarm by loitering in the area of Route 52 and Route 559 while highly intoxicated."  She was assessed a $106 fine and $33 in court costs.

On-line here is "Ordinance 3 of 1973" which I received from Somers Point Municipal Clerk Carol Degrassi. 

On-line here is "Ordinance 6 of 1991" which was a major codification of the Somers Point City Code.  On-line here is part of an e-mail thread with Clerk Degrassi in which she states that Ordinance"3 of 1973 "does not appear in the current code book," and "it appears that Ordinance No. 3 of 1973 was repealed when the City adopted the recodification in 1991."

Thus, it appears that defendant was, in 2012, assessed a total of $139 for violating a code provision that had been repealed more than twenty years earlier. 

On-line here are the first three pages of the Somers Point Municipal Court's Local Offense List.  As you can see, it lists several ordinances that were passed prior to the 1991 codification (e.g. "Ord 11 of 1960" prohibiting "false ID.").  By virtue of their inclusion on the Local Offense List, any of these code provisions could be enforced, similar to the manner that "3 of 1973" was enforced against this defendant.

I believe that the following three things need to happen, and I ask for your assistance:

1. Remove "3 of 1973" from the Local Offense List and inform the Somers Point Police Department to immediately stop enforcing it.

2. Have the Somers Point City Attorney review each of the entries on the City's Local Offense List and remove all of those which are no longer in force.

3. Refund the defendant the $139 that she paid for violating a repealed code section.

Thank you for your attention to this matter.  I look forward to hearing from you.

John Paff, Chairman
New Jersey Libertarian Party's
Preempted Ordinance Repeal Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

cc. Mayor and Council, City of Somers Point
(via e-mail to the City Clerk at CDegrassi@spgov.org)








Improper Downgrading in Tenafly Municipal Court

Tenafly has an ordinance which makes any violation of the New Jersey Criminal Code also a violation of the municipal code.  The Tenafly municipal prosecutor then "downgrades" statutory charges to violations of this municipal code provision.  This allows the defendant to pay a fine but not get a criminal record.  Easy money for the Borough while nothing goes on the defendant's permanent record.  Below is my letter to the Bergen County Prosecutor, complaining of Tenafly's procedure.

But, the presence or absence of a criminal history informs the court of whether a defendant is a first-time or repeat offender thus allowing the court to better decide whether to show leniency or to give the defendant a more severe penalty.  Tenafly's practice undermines the court's decision-making because a defendant remains a "first-time" offender no matter many times he or she has offended previously.

Many courts throughout New Jersey "downgrade" statutory violations in this fashion, even though the practice has been specifically prohibited by a 1998 Attorney General Directive.  Court overseers turn a blind eye toward the practice because they fear that defendants, facing the prospect of being burdened with a criminal record, would start demanding trials instead of just pleading guilty to the ordinance violation and paying a fine.  The increased demand for trials would result in more and longer court sessions and require more resources to be directed to the municipal court system.

If the Attorney General's directive was strictly enforced, I would have sympathy toward some defendants--especially those charged with consensual crimes such as possession of marijuana--because they would face having a drug conviction on their records and risk driver licenses suspensions.  But, other defendants--those whose conduct actually hurts an identifiable victim, such as shoplifters, batterers and the like--should have a criminal record and repeat offenders should face more severe consequences including jail time.

In my view, we can't justify a "Let's Make a Deal" policy in our municipal courts because malum prohibitum laws are unjust.  Rather, we should seek to have the unjust laws repealed and insist on integrity within our municipal courts so that offenders are justly dealt with.

--Letter to Prosecutor's Office

December 27, 2012

Annmarie Cozzi, Esq.
Senior Assistant Prosecutor
via e-mail only to ACozzi@BCPO.NET

RE: Improper Downgrading in Tenafly Municipal Court

Dear Ms. Cozzi:

On March 9, 2010, you were kind enough to respond to my February 23, 2010 letter complaining that the Bogota municipal prosecutor was downgrading statutory charges to municipal code violations in a manner prohibited by the Attorney General's November 18, 1998 Directive.  For your ready reference, I have placed both my letter and your response on-line here and here.

A similar problem is present in the Tenafly Municipal Court, as shown by the four pages related to State v. Li, which are on-line here.  The first page shows that Li was, sometime prior to June 20, 2012 (probably June 12, 2012) charged under Complaint-Summons No. 0261-S-2012-00067 with being under the influence of a controlled dangerous substance (N.J.S.A. 2C:35-10B) and defiant trespassing (N.J.S.A. 2C:18-3B(2)), both of which are statutory offenses.

The second page shows that the CDS violation was, on August 15, 2012, resolved by way of a Conditional Discharge application while the defiant trespass charge was amended, at the prosecutor's request, to a violation of Tenafly Code Sec. 3-14.1.  The third and fourth pages are both sides of Summons-Complaint No. 0261-SC-005585, which was issued to Mr. Li on August 15, 2012--the same day that his plea agreement was negotiated.  That summons shows that Mr. Li was charged with violating Tenafly Code Sec. 3-14.1 on June 12, 2012 and assessed fines and costs of $139.

Tenafly Code Sec. 3-14.1 states:  

Breach of Peace: No person shall conduct himself/herself upon the street or in private places within the Borough in a manner contrary to the provisions of Title 2A of the New Jersey Code of Criminal Justice. (Ord. No. 937 § 2; New)
The thrust of the code provision, which was apparently written prior to the codification of the Criminal Code in Title 2C, is to make any violation of the State's penal code also a violation of Tenafly's municipal code.  Taken to its extreme, Tenafly's code section purports to make murder, which is prohibited by N.J.S.A 2C:11-3, to also constitute a municipal code violation.

I cannot imagine a more blatant example of a preempted local code provision than one which attempts to shoehorn New Jersey's entire penal code within a single ordinance prohibition.  I hope that you will agree, without further elaboration by me, that Sec. 3-14.1 is clearly preempted and that downgrading statutory provisions to it violates the Attorney General's directive.  So that you don't think that Li is an isolated example, I've placed on-line here showing the Tenafly Municipal Court's similar treatment of State v. Orero.

Would you please let me know if you will tell Tenafly's prosecutor to stop violating the Attorney General's directive?

Thank you.

John Paff, Chairman
New Jersey Libertarian Party's
Preempted Ordinance Repeal Project





cc. Mayor and Council, Borough of Tenafly
via e-mail to the Borough Clerk at laportela@tenafly.net

Hon. Roy F. McGeady, P.J.M.C., Bergen County Municipal Court Presiding Judge
via e-mail to Roy.Mcgeady@judiciary.state.nj.us

Hon. Allen M. Bell, J.M.C., Tenafly Municipal Court
via e-mail to abell@jacobsandbell.com

Mark Fierro, Esq. Municipal Prosecutor
via e-mail to mfierro@fierrolawnj.com