On March 13, 2012, a Mercer County civil jury awarded Hamilton resident, Patricia Newton $1,000,000 for injuries she sustained as a result of being struck by a Sam’s Club flat bed cart on April 27, 2009.  The jury found that Sam’s Club was 70% liable while Defendant, Yintak Chong was 30% liable. Plaintiff was represented by Princeton attorney, Edward Harrington Heyburn, Esq. Mrs. Newton sustained a severe laceration to the back of her left leg after Mr. Chung pushed a cart into her. Plaintiff called orthopedist, David Lessing, M.D. Who testified that the laceration severed several of Plaintiff’s nerves causing a loss of sensation, scar and deformity to the underlying muscle.  At trial the plaintiff was able to show that a Sam’s Club associate helped Mr. Chong load the cart with boxes of chicken. The boxes were loaded above Mr. Chong’s head making it impossible for him to see what was in front of him as he pushed the cart forward. The Hon. Pedro Jimenez, J.SC. presided over the four day trial.  Sam’s Club was represented by Richard Millett, Esq. of Somerville, New Jersey.  Mr. Chong did not have an attorney after his home owner’s insurance company disclaimed coverage.

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On January 20, 2012, the Law Offices of Edward Harrington Heyburn, PC obtained a $13,000 judgment against Lucimar Dixon in connection with her fraud and stealing money. See the judgment for yourself. Click here.

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In 1998, Ed Heyburn left Philadelphia for his home state in New Jersey and began working for Levinson Axelrod, PA in Edison, Howell and Forked River New Jersey.  Ed worked for them for 6 years and tried a significant number of cases to verdict.  Tow of these cases stand out.  In Marsdale v. Port Libete, et al., Ed convinced a Middlesex County jury to award his clients $1 Million ($1.4 Million with prejudgment interest).  A few months later, Ed Heyburn convinced and Ocean County jury to award his client $2.5 Million for an ankle fracture.  After those verdicts, it was clear that Ed Heyburn should open his own practice and focus his attention on developing his own clients.  In 2004, many clients left Levinson Axelrod and came with Ed when he started his own office.  He decided to broaden his practice.  In addition to personal injury, Ed also handles worker’s compensation, employment discrimination, criminal matters, traffic matters and DWI/DUI’s.  Ed was once of the lead attorneys in a class action suit against Centex Homes in which he was able to get Centex to reimburse homeowners for attic staircases that lacked adequate fireproofing.

Ed Heyburn has ben able to get a court to order DYFS to return children to a home wherein DYFS planned to adopt out the children.  He has also appeal denial of suppression motions and reversed denials where Municipal Courts looked the other way while police illegally search driver’s cars.

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State of New Jersey v. Mark J. Bellotti, Esq., et al.

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The state Senate approved a bill on Monday that would make the unsafe driving statute more available as a zero-point alternative to speeding and other motor vehicle offenses — even for those with prior convictions.

The measure, S-248, would clarify that N.J.S.A. 39:4-97.2 does not allow assessment of points on a third offender as long as at least five years have elapsed since the second offense.

After that, points would be assessed “if the subsequent offense occurs within five years of a third violation, or, if the person has more than three violations, within five years of the immediately preceding violation.”

As now in effect, the statute lumps a third offense “or subsequent” offense together, and dictates that points “shall be assessed” in those situations. An offense that occurs more than five years after the prior offense is not considered a subsequent offense for the purposes of assessing points, but the law does not specifically state that the five-year bar holds true for a third offense.

The bill codifies the ruling in Patel v. New Jersey Motor Vehicle Commission, 200 N.J. 413 (2009), where the Supreme Court overturned a construction of the statute as mandating a points assessment for every third offense, regardless of how much time passed since the second one.

Hina Patel had sought a novel reading of the statute, arguing that her fourth offense, because it occurred more than five years after her first two, should be treated as a points-free second offense.

The Appellate Division rejected that position, 403 N.J. Super. 373 (2008), calling the Motor Vehicle Commission’s position — that relief from penalty points does not apply to a third offense, and is available only in a fourth or other subsequent offense — “a reasonable construction of the statute.”

The Court unanimously affirmed — saying the “prior offense” from which the five-year time limit runs refers only to the most recent offense — but went on to void the Appellate Division’s dicta.

“We see no basis for treating the term ‘subsequent offense’ in subsection e. as a term of art addressing fourth or later offenses, but excluding third offenses for purposes of the imposition of points,” Justice Jaynee LaVecchia wrote. “Absent a more explicit direction from the Legislature to outright deny subsection e.’s exemption to third offenders, we reject the Appellate Division’s contrary suggestion.”

The bill would raise the fine for a fourth or subsequent offense to $500, up from the present range of $250 to $500,

The unsafe-driving statute came to be so widely used as a downgrade offense that it was amended in 2004 to impose a $250 surcharge on each conviction in order to raise revenue for the state Department of the Treasury.

The Senate approved S-248 in a 39-0 vote. No hearings have been scheduled in the Assembly.

The bill wasintroduced by Sen. Christopher Bateman, R-Somerset, the original sponsor of unsafe driving law in 2000. A longtime municipal prosecutor in Bridgewater and Bound Brook, he pushed for the unsafe-driver statute after judges and prosecutors were chastised by state officials for using obstruction of traffic and other lesser offenses as catchall downgrades when they were not meant to be used in that capacity.

“My intent was to help good drivers … so their insurance rates don’t go up,” Bateman says, adding, “when I first passed this, I was a hero in the municipal court circuit” because judges and prosecutors “needed a new tool” to save time and administrative costs by avoiding trial.

“But it’s been abused,” he adds, referring to the Appellate Division’s interpretation in Patel as well as the 2004 surcharge amendment.

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Holding:

1. The exigent circumstances rule applies when the police do notcreate the exigency by engaging or threatening to engage in conductthat violates the Fourth Amendment. Pp. 5–16.

(a) The Fourth Amendment expressly imposes two requirements:All searches and seizures must be reasonable; and a warrant may notbe issued unless probable cause is properly established and the scope of the authorized search is set out with particularity. Although“ ‘searches and seizures inside a home without a warrant are presumptively unreasonable,’ ” Brigham City v. Stuart, 547 U. S. 398, 403, this presumption may be overcome when “ ‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a]warrantless search is objectively reasonable under the Fourth Amendment,” Mincey v. Arizona, 437 U. S. 385, 394. One such exigency is the need “to prevent the imminent destruction of evidence.” Brigham City, supra, at 403. Pp. 5–6.

(b) Under the “police-created exigency” doctrine, which lower courts have developed as an exception to the exigent circumstancesrule, exigent circumstances do not justify a warrantless search whenthe exigency was “created” or “manufactured” by the conduct of the police. The lower courts have not agreed, however, on the test for determining when police impermissibly create an exigency. Pp. 7–8.

(c) The proper test follows from the principle that permits warrantless searches: warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Thus, a warrantless entry based on exigent circumstances is reasonable whenthe police did not create the exigency by engaging or threatening toengage in conduct violating the Fourth Amendment. A similar approach has been taken in other cases involving warrantless searches. For example, officers may seize evidence in plain view if they havenot violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made, see Horton v. California, 496 U. S. 128, 136–140; and they may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs, see INS v. Delgado, 466 U. S. 210, 217, n. 5. Pp. 8–10.

(d) Some courts, including the Kentucky Supreme Court, have imposed additional requirements—asking whether officers “ ‘deliberately created the exigent circumstances with the bad faith intent toavoid the warrant requirement,’ ” 302 S. W. 3d 649, 656 (case below);reasoning that police may not rely on an exigency if “ ‘it was reasonably foreseeable that [their] investigative tactics . . . would create theexigent circumstances,’ ”ibid.; faulting officers for knocking on a door when they had sufficient evidence to seek a warrant but did not doso; and finding that officers created or manufactured an exigency when their investigation was contrary to standard or good law enforcement practices. Such requirements are unsound and are thus rejected. Pp. 10–14.

(e) Respondent contends that an exigency is impermissibly created when officers engage in conduct that would cause a reasonable person to believe that entry was imminent and inevitable, but thatapproach is also flawed. The ability of officers to respond to an exigency cannot turn on such subtleties as the officers’ tone of voice in

announcing their presence and the forcefulness of their knocks. A forceful knock may be necessary to alert the occupants that someoneis at the door, and unless officers identify themselves loudly enough, occupants may not know who is at their doorstep. Respondent’s test would make it extremely difficult for officers to know how loudly they may announce their presence or how forcefully they may knock without running afoul of the police-created exigency rule. And in most cases, it would be nearly impossible for a court to determine whether that threshold had been passed. Pp. 14–15.

2. Assuming that an exigency existed here, there is no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Pp. 16–

(a) Any question about whether an exigency existed here is better addressed by the Kentucky Supreme Court on remand. P. 17.

(b) Assuming an exigency did exist, the officers’ conduct—banging on the door and announcing their presence—was entirelyconsistent with the Fourth Amendment. Respondent has pointed tono evidence supporting his argument that the officers made any sortof “demand” to enter the apartment, much less a demand thatamounts to a threat to violate the Fourth Amendment. If there is contradictory evidence that has not been brought to this Court’s attention, the state court may elect to address that matter on remand.Finally, the record makes clear that the officers’ announcement thatthey were going to enter the apartment was made after the exigency arose. Pp. 17–19.

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