New Jersey Criminal Defense Attorney Blog

As most people know, the "Statute of Limitations" in a criminal or traffic matter is the time frame within which the police may charge you with an offense. In most traffic offenses, pursuant to N.J.S.A. 39:5-3, the Statute of Limitations is 30 days. However there are exceptions, including:

N.J.S.A. 39:3-40: Driving while suspended or on revoked list has a 90 days Statute of Limitations.
N.J.S.A. 39:4-50: DUI-DWI (driving while intoxicated) has a 90 days Statute of Limitations.
N.J.S.A. 39:4-129 Leaving the scene of accident has a 1 year Statute of Limitations.
N.J.S.A. 39:3-12 Illegally obtaining a Driver's License has a 1 year Statute of Limitations.
N.J.S.A. 39:3-34 Applying for a Driver's License while suspended has a 1 year Statute of Limitations.
N.J.S.A. 39:3-37 False App. on a Driver's License or allowing an unlicensed driver to operate vehicle or lending license to another has a 1 year Statute of Limitations.
N.J.S.A. 39:10-24 Misrepresentation on title has a 1 year Statute of Limitations.
N.J.S.A. 39:6B-2 Driving with No Insurance has a 6 months Statute of Limitations
39: 5-31 DMV Director of Magistrate can revoke license for willful
violations even if Statute of Limitations has passed
The applicable limitations period for the issuance of a DWI complaint is 90 days. N.J.S.A. 39:4-50.

Frequently in New Jersey, when a DWI/DUI suspect is taken into custody, a different officer then the one making the arrest gives the Alcotest (breathalyzer) breath test. Sometimes the arresting officer has other duties to attend to or is not a qualified operator of the machine. This is generally permissible.

However, there are other situations where one officer observers the suspect for the required 20 minutes prior to the administration of the breath test (previously covered on this blog) and then a different officer actually gives the breath test. These so-called "hand-off" cases should be fought aggressively. That is why is is vital to retain an experienced criminal defense/DWI attorney.

Simply put, the same officer that administers the Alcotest must also personally observe the test subject for 20 minutes prior to the administration of that test. State v. Nucifora, December 30, 2008 (Law Div.). State v. Chun, 194 N.J. 54, 79 (2008). It should be noted that Nucifora is an unreported case with no real precedential value.

Continue reading "NJ DUI/DWI Law - When a Different Police Officer Administers the Breath Test" »

I. INTRODUCTION

August 4th, 2007, will regretfully be remembered as one of the darkest days in Newark's history. That Saturday night, at around 11:30pm, Natasha Aeriel, 19, her brother Terrance, 18, Iofemi Hightower, 20, and Dashon Harvey, 20 were gathered in a school playground in Newark's Ivy Hill section. The four young college students were listening to music and chatting together. Little did they know that it would cost three of them their lives.
As the group was enjoying the summer evening, they suddenly noticed another group of young men assembling nearby. The friends began to sense trouble, and sent text messages to each other suggesting that they leave. As they made way to depart, the group of young men confronted the four students.
Ms. Aeriel was shot in head almost immediately. The bullet left a wound near the back of her ear, but she survived. Tragically, the other three students did not. The three were marched to a concrete wall, lined up, and executed. Each was killed by a single gunshot wound to the back of the head.
Even in a city accustomed to bloodshed, the callousness and cruelty of these murders was so shocking that the case has drawn wide national attention. At least one of the defendants, Jose Carranza, 28, is an illegal alien with a criminal record, but yet had been able to remain in the United States. Pundits and politicians alike have loudly questioned how Mr. Carranza could possibly not have been deported. However, the demographic and social background of this defendant begs another question: what can we do to help prevent an individual like Mr. Carranza from obtaining a firearm?
Presumably, none of the suspects in the Newark case purchased the gun that was used in the State of New Jersey. Indeed, New Jersey has some of the strictest gun control laws in the country. ATF data released in 2001 indicated that guns used in crimes in New Jersey overwhelmingly come from out of state.
This article focuses on that trend, and what can be done to stop it. Federal help does not seem to be on the way. And while state law enforcement authorities and legislators try to formulate new strategies and tactics to prevent criminals from obtaining firearms in New Jersey, the battle needs to taken outside of the state's borders if we are going to prevent firearms from being smuggled into the state through I-95 - the so-called "Iron Pipeline."

Continue reading "Out-of-State Firearms in New Jersey" »

My practice focuses on criminal defense, appeals, DWI/DUI, traffic and juvenile matters in central New Jersey. The courts we most commonly appear in include:

Ocean County:

Ocean County Superior Court
Ocean County Courthouse
118 Washington Street
Toms River, NJ 08754
(732) 244-2121

Continue reading "New Jersey Superior and Municipal Court Locations (Ocean County)" »

Under N.J.S.A. 39:3-37.1, it is unlawful to: a) lend your driver's license or allow anther person to use your license, or; b) allow another person to use your vehicle if that person is unlicensed or does not have a valid license. The penalty if you are convicted of this offense is a fine between $200 and $500 and/or jail for up to fifteen days. If you have been charged with offense it is vital to obtain an attorney to either 1) secure a favorable plea agreement in order to avoid the high fine and jail; and/or 2) take your case to trial and obtain a possible not-guilty verdict.

My practice focuses on criminal defense, appeals, DWI/DUI, traffic and juvenile matters in central New Jersey. The courts we most commonly appear in include:

Monmouth County Courts:

Monmouth County Superior Court
Monmouth County Court House
71 Monument Park
Freehold, NJ 07728-1266
(732) 677-4300

Monmouth County Municipal Courts:

Continue reading "NJ Superior and Municipal Courts (Monmouth County)" »

Careless Driving sometimes acts as something of a catch-all penalty in New Jersey. A Careless Driving ticket will often be issued along with other charges such as speeding or when a police officer finds that you caused an accident.

N.J.S.A. 39:4-97 provides that: "A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property shall be guilty of careless driving."

Carless Driving carries 2 points and a fine between $50 and $200. You can also be sentenced to jail for up to 15 days, although this is very unlikely in most situations. In a 60-mile per hour zone, the fine is doubled.

It is important to remember that you are not found to have broken this law until you either plead guilty or are convicted in court. Rather than simply pleading guilty to this violation, you should at least consult with an attorney to discuss the possible consequences. An experienced municipal court attorney can often have the ticket reduced or possibly dismissed. If your ticket was issued in association with an accident, there are important steps that must be taken to ensure that your ticket does not prejudice you in a civil suit.

No one looks forward to finding that dreaded jury duty notice in the mailbox. Jury duty, while perhaps the most important civic duty in our country, can be a long, sometimes boring experience. Unfortunately, there is a shocking number of criminal defendants in prison today whose jury's simply could not stay awake during the trial.

A jury's verdict in a criminal trial must be unanimous. As such, sometimes all a criminal defendant or his/her attorney needs to do to obtain an acquittal (not-guilty verdict) is to establish reasonable doubt in the mind of a single juror. Therefore, every moment in a criminal trial observed by a juror is critical, and a lost moment can mean a lost case for the defendant. Sadly, the law on this issue is not so clear cut.

Trial courts are required to ensure that sleeping or distracted jurors do not cause an unfair trial. See State v. Reevey, 159 N.J. Super. 130 (App. Div.), certif. denied, 79 N.J. 471 (1978). A juror who has not heard all the evidence in a case or the court's instructions as to applicable principles of law is grossly unqualified to render a verdict. Am. Jur. 2d, Trial § 1618. The bulk of "juror-inattention" cases involve the purported sleeping or "dozing" of a juror during the trial proceedings. 59 A.L.R. 5th 1, 2a. The substantial majority of the cases have held that the sleeping of a juror during the course of a trial did not warrant a new trial or the reversal of an adverse judgment which had been rendered against the complaining party, though some courts, given the particular circumstances presented therein, have held to the contrary. Ibid.

Continue reading "The Sleeping Juror in NJ Criminal Trials" »

New Jersey drunk driving defendants were given something of a break when the State Legislature enacted N.J.S.A. 39:4-50(a)(3). The so-called ten-year step-down provision of that statute allows a subsequent (second or third) DWI - DUI offense to be treated as a prior offense for sentencing purposes when more than ten years have elapsed between the two offenses. This was done to mitigate the otherwise harsh and draconian DWI - DUI sentencing guidelines.

In other words, if Anthony is charged with his first drunk driving offense in New Jersey on April 1, 2000 and later convicted, he will be treated as a first offender and lose his license for either 3 or7 months depending on his blood alcohol content (BAC). Nine years later, on April 1, 2009, if Anthony is caught drunk driving again, he will be treated as a second offender and lose his license for 2 years.

However, if Anthony had instead been caught on April 2, 2010 for drunk driving rather than on April 1, 2009, he would have been treated again as a first offender under the 10-year step-down rule. Similarly, if he had been caught in 2000, 2009 and then not until April 2, 2019, Anthony would be sentenced as a second offender rather than as a third.

Continue reading "NJ DWI - DUI Sentencing and the 10-year Step-Down Rule" »

One of the most powerful tools police and prosecutors in New Jersey have at their disposal in enforcing the State's criminal laws is access to phone and wire taps and interceptions.

New Jersey's Wiretap and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-10, provides, in pertinent part, that upon consideration of an application, a judge may enter an ex parte order authorizing the interception of a wire, electronic or oral communication, if the court determines on the basis of the facts submitted by the applicant that there is or was probable cause for belief that:

a. The person whose communication is to be intercepted is engaging or was engaged over a period of time as a part of a continuing criminal activity or is committing, has or had committed or is about to commit an offense....
b. Particular communications concerning such offense may be obtained through such interception; [and]
c. Normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ....

Continue reading "NJ Phone Tap and Wire Interception Law Overview" »

One way to possibly beat a drunk driving (DUI-DWI) charge in New Jersey municipal courts or on appeal is to show that the police did not continuously observe the suspect for 20 minutes prior to the administration of the breath test (alcotest/breathalyzer).

In such situations, a defense attorney may file a motion to suppress the results of the breath test. If this motion is successful, the results of the breath test may be thrown out, leaving the state to prove its case only on the observations of the arresting officer.

Our Supreme Court has found that, subject to certain modifications, the Alcotest device "is generally sufficiently reliable . . . to permit its results to be admissible or to allow it to be utilized to prove a per se violation of the [driving-under-the-influence] statute." State v. Chun, 194 N.J. 54, 65 (2008). The Court dictated some modifications to address technical shortcomings of the device and imposed other pre-conditions to admissibility to preserve defendants' confrontational rights. Ibid. These included the requirement that an Alcotest operator observe a defendant for twenty minutes before administering the test. Id. at 79.

Continue reading "NJ DUI (DWI) Law and the 20-Minute Observation Rule" »

Robert McLaughlin, 76, of Lakewood, will stand trial in Ocean County Superior Court in Toms River for allegedly fleecing a South African man out of $75,000 in a fake gold deal. The defendant declined to enter into a plea agreement with prosecutor and will instead take his chances at trial before Superior Court Judge Wendel Daniels.

McLaughlin was indicted for theft and money laundering and is exposed to fifteen years in state prison. He would be required to serve nearly eight years before becoming eligible for parole. The plea bargain would have had the defendant plead guilty to theft if the state would recommend a 7-year term in state prison and restitution.

The defendant allegedly accepted over $70k from a gold broker and spent the money on himself rather than the gold he had promised to deliver. After the gold was never delivered, the broker contacted the police, who arrested McLaughlin in June. The defendant did not make bail, and is lodged in the Ocean County Jail.

New Jersey drivers lose their licenses for a variety of reasons. The most common are if you were convicted of a New Jersey DWI (DUI), have failed to pay a fine or surcharge, or were found to be a persistent violator of New Jersey's motor vehicle and traffic laws.

If your license to drive in New Jersey has been suspended, you should obviously not operate a motor vehicle under any circumstances. However, life in the garden state can be nearly impossible to manage without a driver's license. As such, many individuals take the risk of driving while their licenses are suspended. Unfortunately, the consequences for doing so are severe.

N.J.S.A. 39:3-40 is the controlling statute for driving while on the revoked list. For a first offense, there is a fine of $500 and a further suspension of driving privileges for 6 months. For a second offense, the fine is $750 in addition to the 6 month suspension. For a third or subsequent offense, the fine is $1,000 in addition to the suspension.

Continue reading "Driving While License Suspended in New Jersey" »

Thomas Roselli, a 44-year-old Matawan resident, was arrested recently for allegedly breaking into a Manalapan Township home on October 19. The burglary occurred on Belair Ln, off of Taylors Mills Rd.

Police say Roselli knocked on the front door of the home, then broke in through the sliding door in the back of the house after no one answered. The daughter of the homeowners was inside the house when the burglar first knocked, then locked herself inside a bathroom and called police.

The girl also called her mother, who alerted a neighbor. The neighbor then went to the front door to investigate. The burglar then ran out the back to a car he had waiting nearby. The suspect was chased by the neighbor, who was able to note the car's license plate.

The license plate led Manalapan police, assisted by Matawan police to Roselli. Roselli was taken into custody in Old Bridge Township and was housed in the Monmouth County Jail in Freehold Township.

If you have been charged, arrested or convicted of Burglary, contact a Monmouth County criminal defense attorney for an evaluation of your case.

New Jersey State Assembly Majority Leader Bonnie Watson Coleman, a Democrat from Mercer County, is introducing a comprehensive package of new laws aimed at giving convicts a second-chance. The legislation will feature administrative and statutory reforms dealing with incarcerated inmates.

The bill would mandate that inmates in New Jersey state prisons participate in educational and vocational programs in order to improve the likelihood that they stay out of trouble after release. The bill will also introduce a commission tasked with finding ways to foster stronger ties between inmates and their spouses and children. Released inmates would be barred from working in establishments that serve alcohol.

The legislative package would also establish faith-based programs inside prisons and create special courts to deal with defendants with mental health issues. More controversial, the new law would make it illegal for employers to discriminate against job applicants who have criminal records. The bill would also broaden the scope of expungement availability.

Studies have shown that roughly 14,000 adult inmates and 1,600 juvenile offenders are released from state prisons, jails and youth facilities in New Jersey annually. Roughly 65 percent of the adults will be arrested again within five years, and 37 percent of juveniles will also be sent back to correctional facilities within two years of release.
It costs taxpayers roughly $35,000 a year to house and feed an incarcerated individual.

Searches and seizures made under a warrant are the most difficult to challenge. The reason for this is that such searches are presumed to be valid and the burden to prove otherwise is upon the defense. This is in contrast to warrantless searches, which are presumed to be illegal unless the state can prove otherwise.

A warrant can only be issued after a finding by a judge that there is "probable cause." Therefore, before a warrant can be issued, the law enforcement officer who is seeking the warrant must submit a "probable cause" affidavit to the judge. Probable cause "exists when an officer has a well-founded suspicion or belief of guilt which may constitute something less than proof needed to convict and something more than a raw, unsupported suspicion." State v. McKenna, 228 N.J. Super. 468, 474 (App. Div. 1998) (citing State v. Davis, 50 N.J. 16, 23 (1967), cert. den., 389 U.S. 1054 (1968)). It is not a rigid concept; rather, it is a "flexible, nontechnical concept." State v. Novembrino, 105 N.J. 95, 120 (1987) (citation omitted). A court determines the existence of probable cause by applying a "common-sense, practical standard." Ibid.

Continue reading "NJ Search Warrant Law (Part I - Overview)" »

Joseph Ambrosio, 41 of Wall Twp, Monmouth County was arrested this week for allegedly sending sexually graphic emails to undercover investigators acting as underage girls. The emails were allegedly sent from his work computer in Jersey City, where he worked as an assistant controller.

Ambrosio has been charged with attempted sexual assault, attempted criminal sexual contact, and child endangerment. Ambrosio's arrest resulted from the work of a joint-investigation conducted by the Monmouth, Passaic and Morris County Prosecutor's Offices and the Passaic County Sheriff's Department.

Prosecutors say the emails and chats started early this year when undercover detectives posed as 12-year-old girls in Yahoo chat rooms. Ambrosio allegedly used the screen name NNNJGUY1971. He would enter the chat rooms in the afternoon, when young girls are likely to be online. The defendant was even allegedly seen by an undercover agent in his office sending such emails.

Continue reading "Wall Township Man Charged in Internet Sex Sting" »

Police in New Jersey are obviously trained to spot signs of criminal activity during routine traffic stops. However, police do not have the right to search your car just because you have been pulled over for a motor vehicle offense.

The first step in determining whether police can search your car is whether the police had "reasonable suspicion" to stop you in the first place. Law enforcement officials may stop motor vehicles when they have a reasonable suspicion that either the vehicle or occupant is subject to seizure for violation of the law. Delaware v. Prouse, 440 U.S. 648, 664, (1973). New Jersey Courts have held that a police officer's observation of a motor vehicle offense is sufficient to justify a stop. State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990).

Next, it is important to keep in mind that any search made without a warrant is presumed to be illegal unless an exception to the warrant requirement can be shown by police. In the context of automobile searches, the most frequently found exceptions to police needing a warrant include: 1) Search of vehicle after arrest. This exception is no longer allowed by the courts in New Jersey; 2) The so-called "automobile exception. Under current law (see State v. Pena-Flores) this requires police to have both a) "probable cause" and b) exigent circumstances;" 3) abandonment; and 4) consent.

If police have searched your vehicle and found drugs, weapons, or other contraband and none of the exceptions to the warrant requirement exist (or are subject to challenge) an attorney skilled in pre-trial motions may be able to have the evidence tossed out after a suppression hearing. If you have been convicted of a crime after such a search, it may be possible to reverse your conviction and arrest on appeal.

When it comes to challenging your Breathalyzer / Alcotest results in a New Jersey DWI case, it is vital for your attorney to be proactive. This means attacking the admissibility of the breath test results before they are received by the judge into evidence during your trial.

One requirement the prosecutor has to meet before he or she may use your breath test readings against you is to prove that the police officer who operated the machine was a "qualified operator." In order to be qualified to operate a breath test machine, Police officers in New Jersey must be certified by the New Jersey Attorney General. The certificate is basically a license to conduct breath tests. Like any other license, it may be terminated, suspended, or expired. This last feature - expiration - can sometimes be used to successfully "suppress" the breath test results (get them thrown out).

Continue reading "NJ Breathalyzer/Alcotest Police Certification" »

Speeding (N.J.S.A. 39:4-98) is the leading cause of accidents in New Jersey. Not surprisingly, they are also the most widely issued traffic ticket in the state.

Unless otherwise posted, the speed limit on a given road is 25 miles per hour in a business or residential district and in a school zone; 35 miles per hour in any "suburban" residential or business district; and 55 miles per hour in all other locations. Again, if there is a posted speed limit, it supplants these guidelines.

If you are convicted of speeding in New Jersey, the following penalties apply:

Between 1 and 14 miles per hour: 2 Motor Vehicle and Insurance Points and a fine between $50 and $200 dollars.

Between 15 and 29 miles per hour: 4 Motor Vehicle and Insurance Points and a fine between $50 and $200 dollars.

30 Miles an hour and over: 5 Motor Vehicle and Insurance Points and a fine between $50 and $200 dollars.

My office represents individuals charged with speeding throughout New Jersey. I have represented hundreds of municipal court defendants and am available to discuss your case any time.

Continue reading "New Jersey Speeding Ticket Attorney" »

Garry Zigich, 26 of Toms River, was convicted in September of killing his fifteen-year old cousin. He appeared this week in Ocean County Superior Court for his sentencing hearing, which resulted in him receiving 50 years in New Jersey State Prison.

Zigich's conviction followed a guilty plea to one count of first-degree murder. Pursuant to a negotiated plea agreement, the Ocean County Prosecutor's Office recommended a maximum of 50 years in prison. The defendant must spend at least 42 years in prison under the No Early Release Act (NERA) before applying for parole. If he had taken the risk of going to trial, Zigich could have received a life term.

Continue reading "Toms River Man Gets 50 Years For Killing Cousin" »

Tailgating (N.J.S.A. 39:4-89) is the second leading cause of car accidents in New Jersey, second only to speeding. Accordingly, New Jersey law is very harsh on those cited for tailgating in the state.

N.J.S.A. provides that: "The driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent...." This obviously begs the question, how close is too close? Unfortunately, that often comes to a subjective determination by the officer who issued your ticket.

In one published case, Pagano v. McClammy, 159 N.J. Super. 581 (1978), it was held that a defendant who was driving 40 miles p/h and was following another vehicle fro a distance of approximately 15 to 20 feet was tailgating.

A driver convicted of tailgating will be assessed 5 motor vehicle and insurance points. This could easily lead to thousands of dollars in increased insurance premiums and surcharges, if not your being dropped by your insurance company altogether. The fine will be up to $200. You can even be sent to jail for up to 15 days.

It is therefore crucial to retain an attorney experienced in Municipal Court practice, preferably a local lawyer who frequently appears before the judge and prosecutor in the town you were pulled over in.

A suspect wanted in Essex County for a October 17 Murder/Homicide was arrested last week at Six Flags Great Adventure in Jackson Township, Ocean County, New Jersey. The arrest was the result of a joint investigation by the Orange and Jackson Police departments.

Investigators in Essex County contacted Jackson Township police on October 30 with a report that Antoine Williams, a twenty-two year old man from Essex County, was inside the Great Adventure theme park in Jackson Township on Rt. 537 in Ocean County.

Jackson police then proceeded to the theme park and located the vehicle Williams was associated with. Police then disabled the vehicle and apprehended Williams when he returned to it. The suspect was then arrested without incident by members of the New Jersey State Police SWAT team, Orange Police, and Jackson Police Department.

It is unclear where Williams has been taken or whether he was retained a New Jersey criminal defense attorney.

What began as a program to curb holiday drunk driving will now be made permanent as Middlesex County in central New Jersey has decided to conduct year-round DWI/DUI checkpoints.

DWI/DUI checkpoints are expensive. They entail overtime pay for police officers and equipment for constructing the road blocks. To help offset these expenses, the New Jersey State Office of Highway Traffic Safety has granted $43,000 to the DWI/DUI checkpoint program, which will feature police being randomly stationed across Middlesex County to conduct the DWI/DUI checkpoints.

Forty-two deadly accidents occurred in Middlesex County last year. While only a fraction were related to drug or alcohol intoxication, a large number of those incidents involved young drivers, specifically those between 17 and 21.

In many DWI / DUI cases in New Jersey, an important piece of evidence is the police officer's dashboard camera videotape. In many cases, the DWI/DUI lawyer does not want the videotape to be used at trial since it will not paint a pretty picture of the state the individual was in when he or she was pulled over. However, in some cases where intoxication is disputable, the defendant's defense attorney may want the videotape to show that he or she was in fact not intoxicated, contrary to the officer's assertions.

It is not uncommon in these latter cases for the videotape to suddenly go missing before the DWI / DUI lawyer can obtain it from the prosecution. It must be noted however that the videotape is not admissible in New Jersey to rebut a valid breath test. Therefore, these issues usually arise when there was no breath test, the breath test is questionable, or you are challenging that there was probable cause to arrest you and administer the breath test in the first place.

A criminal defendant is entitled to disclosure of all exculpatory evidence, i.e., evidence which is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963); State v. White, 227 N.J.Super. 443, 547 A.2d 1131 (App. Div. 1988). The defendant is entitled to disclosure of all exculpatory evidence known to the prosecution or which is in the prosecutor's file even if the prosecution has actually overlooked it. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Carter, 91 N.J. 86, 449 A.2d 1280 (1982). The good faith or bad faith of the prosecution in failing to make disclosure is generally irrelevant. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); but see State v. Reynolds, 124 N.J. 559, 592 A.2d 194 (1991) (Holding that routine destruction of police dispatcher tapes by the police did not, in the absence of any evidence of bad faith or any apparent exculpatory value, constitute a Brady violation).

An individual prosecutor has a personal duty to learn of any favorable evidence known to others acting on the State's behalf in the case, including the police. Kyles v. Whitley, 514 U.S. 419, 436-440, 115 S.Ct. 1555, 1567-68, 131 L.Ed.2d 490 (1995). A prosecuting agency must bear whatever consequences properly flow from the loss of evidence by other state agencies, such as the police. State v. Montijo, 320 N.J.Super. 483, 727 A.2d 533 (App. Div. 1998). In determining whether the state's loss of evidence has resulted in prejudice to the defendant, so as to warrant the dismissal of the indictment, the burden of demonstrating a lack of prejudice is upon the state, notwithstanding that there is no presumption of prejudice inuring to the benefit of the defendant. Ibid.

In many cases, the videotape evidence of the incident would be exculpatory insofar as it would show that the Defendant was not intoxicated, that the field sobriety and breathalyzer tests were not properly conducted, and that there was no probable cause to arrest the Defendant. As such, it is without question that the videotape evidence would have at least some exculpatory value and the burden should therefore be placed upon the state to show how the Defendant would not be prejudiced at trial without the videotape evidence.

Continue reading "New Jersey DWI / DUI Lost Videotape Issues" »

In a joint-operation conducted by the Monmouth County Prosecutor's Office, the Monmouth County Sheriff's Office, the US Marshal's Service, the New Jersey Parole Board, and the Asbury Park and Neptune Police Departments, nearly 100 fugitives were arrested over the course of three days last weekend.

Many of the defendants arrested in Monmouth County are suspected of felony charges.
These include gang-related crimes, aggravated assaults, burglaries, and drug charges. Most of the arrests were made in the cities of Neptune and Asbury Park.

Police also seized various firearms as well as drugs including large amounts of heroin and marijuana. Most of the suspects are lodged at the Monmouth County Jail, Freehold Township.

The following NJ criminal conviction appeals were decided by the New Jersey Supreme Court and the New Jersey Superior Court - Appellate Division in October. Case summaries are provided courtesy of Mark Friedman and Patricia Casey of the Office of the Public Defender.

CRIMES AND OFFENSES - ELEMENTS

State v. Eugene M. Wilson, unpublished opinion, App. Div. Docket No. 2234-06T4 (October 6, 2009) - Conviction for endangering the welfare of a child reversed, other convictions affirmed. "[U]nder the facts presented at trial, [the] conviction ... for endangering an injured victim cannot be sustained, because, as the State acknowledges, the victim was either already dead, or at a minimum unable to be saved, at the time he left her apartment.... Here, the expert witness testimony established that Rosetta was 'essentially medically dead' in the 'very early' stages of the attack. In fact, the assistant medical examiner opined that the first wounds stopped Rosetta's heart.... [T]he evidence adduced clearly showed that Rosetta was dead before defendant left the scene." (Susan Brody, A.D.P.D.)
http://www.judiciary.state.nj.us/opinions/a2234-06.pdf

EVIDENCE

State v. Curtis Daryl Cooper, unpublished opinion, App. Div. Docket No. A-3346-07T4 (October 8, 2009) - Convictions reversed. "On appeal, defendant first claims that it was error to permit cross-examination of his expert, Dr. Weiss, by use of hearsay upon which the expert did not rely. This hearsay consisted of the statement given by Walter Jones recounting what he had been told by defendant in the early morning after the fire, including defendant's threat to kill his girlfriend. The hearsay also included reports of prior acts of violence referenced in defendant's medical records.... In the present case, ... , Dr. Weiss reviewed Jones's statement and considered it in reaching his conclusions, but did not rely upon it. The judge's determination to permit cross-examination, nonetheless, resulted in the introduction of hearsay that the jury was otherwise not permitted to hear, thereby denying defendant his constitutional right of confrontation.... In contrast to Dr. Weiss, Dr. Atkins [State's expert] testified that the statement of Walter Jones was 'very important' to him in rendering his opinion.... Nonetheless, defense counsel objected to the prosecutor's use of Jones's statement, arguing that the prejudicial effect of the admission of its contents outweighed its probative value.... In the present matter, a Rule 403 analysis was rejected by the trial judge who, apparently relying on his prior mistaken ruling that the use of the Jones statement would be permitted in connection with the cross-examination of Dr. Weiss, determined that such analysis was no longer warranted because the objected-to hearsay was already before the jury. We regard this determination as a further error on the judge's part. We are satisfied that defendant's hearsay admissions to Walter Jones, as contained in Jones's statement to the police, should never have been brought to the attention of the jury in the absence of testimony by Jones, himself, at trial. Further, we conclude that the judge's combined errors in permitting the use of this double hearsay violated defendant's right to confrontation and deprived him of his right to a fair trial." (Ingrid A. Enriquez, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a3346-07.pdf

Continue reading "New Jersey Criminal Conviction Appeal Highlights (October 09)" »

A Monmouth County teen has been charged with Murder, Attempted Murder, and Possession of a Weapon for an Unlawful Purpose. A Monmouth County Superior Court Judge in Freehold has set bail at $2 million. The defendant has been lodged in the Monmouth County Jail, Freehold Township.

Police allege that last May, Thomas WIlliams, age 19, fired shots through the bedroom window of a Neptune home on Olden Avenue, killing Daryle Tyson. Tyson's mother, nearly 70 years old, was also wounded in the attack, which occurred in the early morning hours of May 25. Police also allege that the defendant shot more rounds outside the home at another man but missed.

Williams is represented by Monmouth County criminal defense attorney Robert Konzelman. The specifics of the case are still unclear but prosecutors from Monmouth County and investigators from Neptune believe that the deceased man was purposefully targeted.

Sean Robinson, 41 of Freehold, has been charged by police in Monmouth County with allegedly stabbing his child's mother in Long Branch. The woman was critically injured in the attack.

Last Friday, Long Branch police responded to a 911 call reporting that a woman had been attacked by a man wielding a knife. Police and paramedics arrived at the University Place home in Long Branch and found the woman with several knife wounds. Police later arrested the suspect on Joline Avenue and charged him with aggravated assault, attempted murder, and related weapons offenses.

Robinson is also in the hospital as a result of wounds he sustained in the attack. After his recovery, he will likely be lodged at the Monmouth County Jail in Freehold Township in lieu of $630,000 bail.

A common misconception about New Jersey's appeals court (the Superior Court - Appellate Division) is that only "appeals" are heard there. Actually, the judges in the Appellate Division do much more than simply handling direct appeals.

Motions are routinely filed in the appeals court and are typically heard about a month after filing. By far, most of these motions are for Leave to Appeal. Such a motion is necessary when the proceedings in the trial are not yet over. In the event that you lose on an important issue mid or pre-trial, you may wish to file a Motion for Leave to Appeal so that you can get a second bite at the apple in the Appellate Division before resuming the trial.

Be forewarned, appeals court judges (for the most part) do not like to interrupt trials in order to put their two cents in. There are several reasons for this disinclination. First, the appeals court judges are extremely busy and under intense pressure to turn out their own direct appeal opinions. Second, there is a risk that interference with the trial court could undermine the trial judge's authority. Finally, many issues that develop during trial are rendered moot by settlement.

Continue reading "Motions For Leave to Appeal in New Jersey's Appellate Division" »

Thomas Anderson, a 42 year-old man from Freehold, was charged this week with endangering the welfare of a child and sexual assault. The crimes allegedly took place approximately 14 years ago in Ocean County. Anderson is lodged in the Ocean County Jail. His bail is set at $250,000. It is not clear if he has retained a criminal defense attorney.