Kenneth Vercammen's NJ Laws email newsletter E240 March 17, 2007

In this issue:
1 Fireman & Police now have right to bring claim if injured due to negligence
2. Illegal alien status can factor to deny PTI
3. Need to reapply Miranda warnings depends on circumstances
4. Motion to suppress granted where stop based on only 911 call that was vague
5 NJ Inheritance Form L-9
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1. Fireman & Police now have right to bring claim if injured due to negligence
Ruiz v. Mero 3-13-07 (A-28/29-06)
N.J.S.A. 2A: 62A-21 abolished the firefighter’s rule. First responders may recover damages from a property owner for any injury sustained when answering an emergency. In 1993, the Legislature enacted N.J.S.A. 2A:62A-21. Plaintiff contends that the Legislature meant N.J.S.A. 2A:62A-21 to abrogate completely the firefighters’ rule. Defendants claim that the Legislature intended to return to the rule as it had existed prior to the Rosa case.
The meaning of N.J.S.A. 2A:62A-21 is clear - - to provide a broad right of action to a first responder who is injured on the premises to which he has been called. There is nothing in the words used to suggest that the Legislature intended to immunize only those hazards inevitably involved in fire fighting or police work and not those outside that sphere. The language in the Senate committee statement supports the view that the Legislature was aware of the Rosa case when it passed the statute. In light of the unfettered statutory language authorizing a cause of action, it seems much more likely that the Legislature intended to adopt Justice Handler’s view than to re-establish pre-Rosa case law.

2. Illegal alien status can factor to deny PTI. State v. Liviaz __ N.J. Super. __ (App. Div. 2007)

Although PTI may not be denied solely because a defendant is an illegal alien, it can be a relevant factor, and in both of these cases defendant's illegal status plus other facts justified the prosecutor's rejection of defendant's application for admission to the PTI program. Judgments of the trial court therefore reversed.

3. Need to reapply Miranda warnings depends on circumstances State v. Dispoto __ NJ ___ (A-103-05) 1-18-07
The Court rejected the Appellate Division’s bright-line approach that failure to re-administer Miranda warnings at the time of arrest required suppression of Dispoto’s post-arrest incriminating statement, notwithstanding the pre-custodial warning about an hour earlier. The Court retains the more measured and traditional totality-of-the-circumstances assessment. Thus, where pre-custodial warnings have been given to a defendant as part of a continuing pattern of interactions between the defendant and the police, and during that continuing sequence of events nothing of an intervening nature occurs that would dilute the effectiveness of the warning, there would appear to be no need to require another warning. Such determinations are better suited to fact-based assessments rather
than bright-line pronouncements.
Because there was insufficient evidence to support the issuance of the underlying domestic violence search warrant, the criminal search warrant was invalid as fruit of the poisonous tree. While this holding renders moot the Appellate Division’s finding that failure to re-administer Miranda warnings at the time of arrest required suppression of Dispoto’s post-arrest incriminating statements, the Court adds in respect of the issue of the Miranda warnings only that no bright line or per se rule governs whether re-administration is required following a pre- custodial Miranda warning.

4. Motion to suppress granted where stop based on only 911 call that was vague. State v. Phelps Appellate Division, A-3755-05T2, November 14, 2006, not approved for publication.

Law Division order that granted the defendant’s motion to suppress evidence that was seized after his motor vehicle was stopped affirmed; a man called 911 and reported that five “dark-skinned black males” who were members of the Bloods street gang were armed and chasing him in a “blue car”; police officers responded to the scene, stopped a “bluish-gray” Pontiac Bonneville that contained only the defendant, who is black, and a Hispanic female passenger, and recovered a handgun and crack cocaine; although other occupants of the defendant’s vehicle could have fled the scene before the officers arrived, the number and gender of the occupants that the officers saw did not match the 911 caller’s description, and the caller had identified the vehicle only by a nondescript color; the stop of the defendant’s vehicle was not justified because the information that the 911 caller provided did not correspond to the officers’ observations to the extent that the officers and the court could be certain that the defendant’s vehicle was the same vehicle that the caller had identified; instead, the caller’s description of the vehicle was “vague.” Source: Facts-on-Call Order No. 20501.

5 NJ Inheritance Form L-9
The Inheritance Form L-9 was revised and old forms can no longer be used. Inheritance Form L-9 is an Affidavit executed by the executor, administrator or joint tenant requesting the issuance of a tax waiver for real property located in New Jersey which was held by a resident decedent.

More Wills & elder law articles
http://www.njlaws.com/more_probate_elder_law_litigation_laws_and_links.htm
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