New Jersey Criminal Defense Attorney Blog

In this recent NJ DWI appeal, the appeals court found that the 344 day delay of the defendant's trial violated his right to a speedy trial.

State v. Christos E. Tsetsekas, ? N.J. Super. ?, 2009 N.J. Super. LEXIS 253 (December 14, 2009) - NJ DWI conviction reversed.

"Under the facts of this case, we conclude the extensive delay in adjudicating this matter, caused by the State's repeated lapses in preparation, infringed upon defendant's due process rights such that his conviction must be reversed and the charge dismissed....

Here, the 344 day dispositional period is more than five times the [ordinary 60-day guideline for DWI cases], and ... the delays were numerous, mostly avoidable and largely unexplained.... The weight of the delay resulting from the reoccurring unavailability of the State Troopers, despite information that their appearance was required, falls on the shoulders of the prosecutor.

The State must be responsible to produce its witnesses when trial is called. We also consider significant the fact that the State did not discover its witnesses' unavailability until the trial date, rather than securing their appearance ahead of time....

The repeated delays and unnecessary appearances due to the State's ill-preparedness, which caused disruption of defendant's everyday activities, the consumption of time and money, and emotional anxiety and uncertainty, add up to more than 'minimal' prejudice to defendant." (Thomas S. Doerr)
http://www.judiciary.state.nj.us/opinions/a1832-08.pdf

State v. Dana Rone, ? N.J. Super. ?, 2009 N.J. Super. LEXIS 250 (December 9, 2009) - Conviction for obstruction of justice and forfeiture of public office affirmed. "The first question, analytically, is whether defendant's conviction ... touched on her position as a member of the City Council....

Defendant stresses that the record does not contain any findings of dishonesty or untrustworthiness on her part; this, she contends, demonstrates that her actions on the night in question do not touch on her office.

This, however, is not the test enunciated by the McCann [167 N.J. 311 (2001)] Court; an offense touches on an individual's office if it flows from that office.... Here, ... , defendant repeatedly announced her public position and pointed to her use of a municipal vehicle.

She used her position to denigrate the university's police force, and dissatisfied with the manner in which the university police were responding to her, summoned what she termed the 'real' police, the City's municipal police. We agree with the trial court that defendant's offense did indeed touch on her position as a member of the city council."

With regard to possible waiver of forfeiture under N.J.S.A. 2C:51-2(e), "We are satisfied that defendant's threshold analysis, that is, that the critical question is whether good cause exists to waive forfeiture, is correct and that the State's position, that the prosecutor's decision to seek waiver is entitled to enhanced deference, is incorrect. That defendant applies the correct analytical framework does not advance her cause, however, for we are equally satisfied that good cause was not demonstrated." (Patricia Bombelyn)
http://www.judiciary.state.nj.us/opinions/a5850-07a6192-07.pdf

In this recent NJ Criminal Appeal, the defense attorney successfully argued that a police search of a vehicle's glove box was illegal.

State v. Ricardo Manuel Ortiz and Arnaldo A. Ortiz, unpublished opinion, App. Div. Docket No. A-4026-08T4 (December 28, 2009) - Suppression of evidence affirmed. Although the stop of the vehicle for having too-darkly tinted windows was justified, and the smell of unburned marijuana gave the police "a well-grounded suspicion that criminal activity was afoot," "we conclude that sufficient credible evidence in the record supports the motion judge's finding that the police lacked exigency to search the glove compartment without first obtaining a warrant, either by telephone or in person....

[A]t all times, the occupants of the SUV complied with police directions, including moving their vehicle some distance from the scene. There was no indication they knew Arnaldo's vehicle contained CDS, nor was any CDS in plain view. Far from presenting any threat to the officers' safety or preservation of the evidence, one of the SUV occupants, a relative of defendants, was actually given the keys to Arnaldo's Honda to take possession of the vehicle upon the defendants' transport to jail....

Equally lacking is any indication that any delay occasioned by obtaining a warrant to search the car would have jeopardized either the officers' safety or the integrity of the evidence.... Koeppen, upon opening the glove compartment and observing the bag, did not believe the bag contained a weapon of any kind. Even if Koeppen lawfully opened the glove compartment, there would have been no justification under the State's theory for further searching the plastic bag, which did not appear on its exterior to contain any weapon therein....

Here, to avoid suppression as fruit of the poisonous automobile search, the State had to prove by clear and convincing evidence that the cocaine in Ricardo's shoe and sock would have inevitably been discovered as a result of a search incident to a lawful warrant or an inventory search prefatory to his incarceration on that charge. Yet the State has offered no evidence -- much less clear and convincing proof -- of the circumstances attending Ricardo's stationhouse search....

Moreover, there is no evidence to suggest that Ricardo would have been lawfully confined to a municipal or county detention facility, that he would not otherwise have been released on his own recognizance, or have posted bail if, in fact, bail had been set on the warrant charge. To the contrary, the record is silent even as to the underlying charge on which Ricardo's outstanding warrant was based." (Marc E. Lieberman)
http://www.judiciary.state.nj.us/opinions/a4026-08.pdf

In this recent NJ criminal appeal, the defendant lost while arguing that the standard for probable cause to arrest is a separate inquiry than that for probable cause to search.

State v. Richard Chippero, ? N.J. ?, 2009 N.J. LEXIS ? (December 29, 2009) - Suppression of evidence reversed, case remanded to Appellate Division for consideration of other issues. The opinion in State v. Chippero (I), 164 N.J. 3432 (2000), holding that defendant's confession had to be suppressed because it was the product of an arrest not supported by probable cause, could not fairly be read to hold that there was no probable cause for the separate search of defendant's home.

"We join those many courts in recognizing that probable cause to arrest and probable cause to search involve distinct and not necessarily identical inquiries. A finding of probable cause as to one does not mean that probable cause as to the other must follow, nor does the lack of one compel a finding that there is a lack of support for the other....

[A] court may find a lack of probable cause to arrest an individual and yet determine that probable cause exists to search the home where that individual resides." In this case, there was probable cause for the search of the home because "Judge Figarotta was told that a disinterested person saw someone, within minutes of the estimated time of the homicide, run from the vicinity of the front area of the victim's home to the premises at 49 Poe Road and enter it.

The person appeared sweaty, his clothing appearing wet and sticking to him as if from some sort of exertion. He appeared anxious to get out of his shirt, pulling at it to get it off of him as he entered the home. We know that the murder scene showed that the rape and stabbing of the victim required a not inconsiderable effort and that much blood was spilled.... We conclude that the issuing judge could have found from the record recited above that a reasonable probability existed to show that the person McMenemy saw may have had a connection with the crime and may have had on him, or on his clothing, evidence connected to the sexual assault and murder." (Alison S. Perrone, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/supreme/A-50-08.pdf

The NJ criminal defendant in this case was able to win on appeal by arguing that the trial judge erred in handling a question from the jury on accomplice liability.

State v. Timothy Glenn Watts, unpublished opinion, App. Div. Docket No. A-4331-06T4 (December 4, 2009) - First degree robbery conviction reversed. "the State prosecuted Watts solely on an accomplice liability theory, contending that he willingly participated in the crime with Caldwell and that he shared a common purpose and intent with Caldwell to commit an armed robbery against Singh....

However, the State alternatively took the position that, even if Watts did not learn that Caldwell committed this armed robbery until Caldwell returned to the car with the money, by driving Caldwell away from the scene, he could have formed the requisite intent and purpose at that time to make him an accomplice to the armed robbery.... Over defense counsel's objection, the judge answered ... 'yes' to [the question, '[c]an the purpose become apparent at any point of the robbery?']....

The judge's answer to the jurors' questions allowed the jurors to find Watts guilty as an accomplice of armed robbery based upon a finding that Watts' participation in the crime did not begin until Caldwell returned to the car and Watts then first learned that Caldwell committed the robbery. For the reasons we have stated, and as more expansively stated in Whitaker, [402 N.J. Super. 495 (App. Div. 2008), affirmed ? N.J. ?, 2009 N.J. LEXIS (December 7, 2009)], we conclude that in those circumstances, any such conduct by Watts in driving the getaway car could not result in accomplice liability for the crime Caldwell committed by his own conduct. We accordingly reverse Watts' conviction and remand for a new trial on the armed robbery charge." (Michael Confusione, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a4331-06a0552-07.pdf

The Appellate Division recently reversed the criminal conviction of this defendant after holding that the trial court should not have given the jury a charge on intoxication over the objection of defense counsel.

State v. R.T., ? N.J. Super. ?, 2009 N.J. Super. LEXIS 255 (December 17, 2009) - Convictions reversed, dissent by Judge Espinosa. "In this appeal we consider primarily whether defendant's right to a fair trial was prejudiced by the court charging the jury with intoxication as possibly negating an element of the crime, over defendant's objection. Finding error, we reverse and remand for a new trial....

In summation, the defense took the position that defendant did not commit the offenses and focused primarily on seeking to impugn the credibility of L.T. and his mother, including noting inconsistencies in the child's testimony and her conviction for child endangerment.

Counsel also commented generally on the problems inherent in the police interrogation that was only partially audiotaped and noted Hunsinger's suggestion to defendant that he was drunk.

An intoxication defense was not asserted explicitly or implicitly.... The facts of the present case do not clearly indicate a rational basis for the conclusion that defendant suffered from such a 'prostration of faculties' as to render him incapable of forming the requisite mental state to commit the crimes....

Not only did the facts not clearly indicate the appropriateness of the intoxication charge, but the instruction impermissibly interfered with defendant's chosen trial strategy as clearly articulated to the court during the charge conference. Our courts have expressed a general need to refrain from interfering with defense counsel's strategy." (Michael Confusione, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a1131-06.pdf

The Appellate Division recently overturned this defendant's conviction for Terroristic Threats on appeal because the trial court gave the jury improper instructions before its deliberation.

State v. Anthony Parisi, unpublished opinion, App. Div. Docket No. A-4660-07T4 (December 18, 2009) - Conviction for terroristic threats reversed.

"In this case, we conclude that errors in the charge on [N.J.S.A. 2C:12-]3a, although not the subject of an objection at trial, constituted plain error requiring reversal of the conviction and re-trial....

[T]he State's case under both subsections 3a and 3b was premised on defendant's alleged threat to kill DeCamp. The State did not argue that defendant was guilty because he cursed at DeCamp or pounded on the hood of her van, and neither of those actions are 'crimes' that would support a conviction under subsection 3a....

Nor did the judge explain to the jury the elements of 'assault.'... Further, in defining N.J.S.A. 2C:12-3b, the judge told them it was 'different' from 3a because 3b required a threat to kill. Consequently, the jury very well may have concluded that it did not need to find a threat to kill in order to convict defendant under 3a."

In this recent New Jersey criminal appeal, the Appellate Division reversed the defendant's conviction on other grounds, but declined to rule that the trial judge's refusal to supply the jury with written instructions deprived the defendant of a fair trial.

State v. Peter J. O'Brien, ? N.J. ?, 2009 N.J. LEXIS ? (December 29, 2009) - Conviction reversed for other reasons. The trial court's refusal to honor the jury's request for written instructions was not plain error requiring reversal. However, "Because the rule is silent regarding the kinds of considerations that should inform such a determination, we refer the matter to the Civil and Criminal Practice Committees for consideration of a more detailed standard to guide judges in exercising their discretion.

By way of example, but not limitation, the committees should consider whether, if there is a request, there should be a presumption that instructions that are immediately available will be provided; whether there should be a contrary presumption that instructions that are not immediately available will not be provided; whether a definition of 'immediately available' should be adopted; and what kinds of considerations regarding the nature of the case should factor into the judge's Rule 1:8-8 calculus." See also WITNESSES. (Jay L. Wilensky, A.D.P.D.)
http://www.judiciary.state.nj.us/opinions/supreme/A-89-08.pdf

In this case, the defendant won on appeal by arguing that his attorney misinformed him of the consequences of his guilty plea re: Megan's Law tier classification.

State v. R.E., unpublished opinion, App. Div. Docket No. A-4655-07T4 (December 4, 2009) - Denial of PCR reversed, case remanded for new hearing. "The paramount issues before us are whether defendant's defense counsel not only provided defendant with constitutionally deficient advice concerning the direct or indirect Megan's Law consequences that he faced if convicted pursuant to the plea bargain, but also whether he suffered prejudice even if he was misinformed.

It is the second prong of this framework that suffers from an unfinished analysis, and which impels our order of remand.... The issue here is not that defendant failed to understand that he was subject to Megan's Law. Rather, it is defendant's stance that he was misinformed as to the extent of his exposure to a tier reclassification by pleading guilty, which was unfortunately compounded by the court's statement at sentencing that

'I don't think you're subject to Megan's Law anyhow, so that's not a concern right now.' This statement, albeit accurate insofar as the immediate criminal sexual contact charge was concerned, would lead a person in defendant's circumstances to reasonably believe that the new conviction would have no impact whatsoever on his extant Megan's Law status.

The absence of any comment by defendant's defense counsel, either to clarify the sentencing judge's statement on the record or to consult privately with defendant and advise him otherwise, reinforced the potential for misapprehension.... Given the significance to all concerned -- the defendant, the State, and the community -- of tier classifications, we cannot confidently say that defendant did or did not receive the effective assistance of counsel when he acceded to the plea agreement and fulfilled his part of the plea bargain.

That the effect of that event was not felt until several months later, when defendant's tier classification was reviewed and increased, does not detract from our uneasiness with the truncated process that defendant received in January and February 2006. All we direct is that the PCR judge conduct a limited further hearing, with or without testimony in his discretion, to explore whether, in light of Slater and what we have determined regarding the performance of defendant's former counsel, defendant should be entitled to withdraw his guilty plea." (Richard Sparaco, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a4655-07.pdf

DYFS v. M.D.C. and R.C./In the Matter of B.M.C., unpublished opinion, App. Div. Docket No. A-5579 and 5655-07T4 (December 9, 2009) - Order terminating parental rights reversed, case remanded. The trial court's decision contained insufficient and inaccurate factual findings with respect to the four prongs of N.J.S.A. 30:4C-15.1(a).

In particular, NJ DYFS failed to obtain a bonding assessment with the child's foster parents before concluding that termination would not do more harm than good. The absence of any evidence that DYFS made any effort to investigate and assist defendants in addressing whatever problems caused them to lose their housing negated the finding that it made reasonable efforts to provide services to defendants. (Michael C. Wrobleski, Designated Counsel, for M.D.C.; Durrell Wachtler Ciccia, Designated Counsel, for R.C.; Jeffrey R. Jablonski, A.D.P.D., Law Guardian)
http://www.judiciary.state.nj.us/opinions/a5579-07a5655-07.pdf

This recent NJ criminal defendant was allowed to withdraw his guilty plea after the Appellate Division found that there was an insufficient factual basis for his plea.

State v. Lawrence Speed, unpublished opinion, App. Div. Docket No. A-5912-07T4 (December 15, 2009) - Conviction reversed, case remanded. "Speed's response to the question 'what if anything did you do that makes you guilty of endangering the welfare of a child' was not sufficient to satisfy the requirement that he admit to knowledge, at the time of the offense, that his conduct would 'tend to impair or debauch' the victim's morals. He admitted to sexual intercourse, but not to knowing that the conduct would tend to impair the victim's morals at the time of the offense. Consequently, there was an inadequate factual basis for the plea." (Ingrid A. Enriquez, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a5912-07.pdf

In this case, the defendant's criminal defense attorney allegedly failed to inform the defendant, who was underage at the time he committed a sex offense, that he would not be able to be removed from the Megan's Law registry upon his 18th birthday. The defendant successfully argued on appeal that this materially influenced his decision to plead guilty.

State in the Matter of Registrant B.A., unpublished opinion, App. Div. Docket Nos. A-0109-08T1 and A-1997-08T1 (December 16, 2009) - Order denying motion to be relieved of Megan's Law registration requirements affirmed, order denying motion to withdraw guilty plea reversed, case remanded for evidentiary hearing.

"The court, the defense attorney, and by silence, the assistant prosecutor, were unaware of the fact that B.A. was not eligible to apply for relief from Megan's Law registration requirements when he turned eighteen unless he was under fourteen years of age at the time of the commission of the offense.

B.A. asserts that he relied upon this mistaken impression of what was required under Megan's Law in seeking to withdraw his guilty plea, arguing that it materially influenced him to enter a guilty plea.... B.A. contends that he entered his guilty plea believing that he would be eligible to apply for relief from Megan's Law registration requirements when he became eighteen years old.

This belief was fortified by the colloquy between the trial court and his then-counsel. The State made no objection or comment. As a consequence, he reasonably anticipated that he could petition for relief when he turned eighteen.... [T]he trial court did not even consider the mistaken impression conveyed to B.A. at the time he entered his plea.... On remand, the trial court will have to hold a hearing to explore the issue of the materiality of this misimpression to determine whether a plea withdrawal is appropriate. (Jane M. Personette)
http://www.judiciary.state.nj.us/opinions/a0109-08a1997-08.pdf

In this recent criminal case won on NJ appeal, the defendant convinced the appeals court that his expert witness should have been allowed to testify that he was a drug addict. This would have assisted the defense that drugs found on his person were for personal use and not for sale.

State v. Ryshan Tatum, unpublished opinion, App. Div. Docket No. A-1313-08T4 (December 23, 2009) - Convictions reversed following remand for hearing on whether expert's opinion could be of assistance to the jury.

"Although the judge found that McCorkell qualified as an 'expert in alcohol and substance abuse counseling with an expertise in therapy and counseling,' he concluded that McCorkell's testimony would not have been of assistance to the jury, or that even if it would, it would not have affected the result of the case.

We disagree with the first proposition and find the second proposition irrelevant under the Supreme Court's remand order.... The average juror would not know about the standards for determining drug addiction set forth in the DSM-IV. Thus, an expert's opinion applying those standards to determine if defendant was a drug addict would be useful in deciding whether that was so or not.

Since in this case, the defense was that the drugs were for personal use, defendant's status as an addict would obviously be relevant. Of course, drug addicts can and often do sell drugs to support their habit, but if a defendant was a drug addict at the time of the offense, it is at least more likely that he had the drugs for personal use....

Since McCorkell's testimony could be of assistance to a jury and since it cannot be barred simply because he relied on the kind of hearsay that experts in his field rely on, and because he did not squarely address the substance of Graves's testimony, we are obliged to reverse and remand for a new trial."

http://www.judiciary.state.nj.us/opinions/a1313-08.pdf

This criminal defendant recently won on appeal, by successfully arguing that the trial court erred by improperly admitting evidence pertaining to the defendant's sexual proclivity. By doing so, the defendant avoided a lengthy prison term and registration under Megan's Law.

State v. Kiwanie Salter, unpublished opinion, App. Div. Docket No. A-0502-08T4 (December 24, 2009) - Convictions reversed. "Defendant contends the trial court erred by admitting evidence of 'other acts' evidence that (1) defendant engaged in consensual anal intercourse with C.B., (2) defendant whispered during consensual sex with C.B., (3) defendant kissed his daughter on the mouth, and (4) defendant previously was in possession of a gun.

Defendant also contends that the State produced none of this evidence in discovery, nor did the State provide any advance warning that this evidence would be presented at trial. We agree that prejudicial evidence regarding defendant's preference for anal sex, kissing his daughter on the mouth, and possession of a gun was presented to the jury without meeting the requirements of N.J.R.E. 401, 403, and 404(b)....

First, C.B.'s testimony about defendant's preference for anal intercourse with her was not relevant and should have been excluded.... Defendant's state of mind was not a disputed issue at trial. The defense never suggested that defendant was not guilty because he did not have the requisite criminal intent to engage in anal intercourse with T.B.

The defense argued that the incidents never happened, that T.B.'s testimony was a complete fabrication. We also reject the prosecutor's suggestion that C.B.'s testimony was relevant to prove defendant's motive for the sexual assaults of T.B. We see no 'tendency in reason,' ... between a man's sexual preferences with his adult girlfriend and motivation to engage in sexual activity with a child when the adult relationship has ended....

The prosecutor's proffer on relevance by its own terms established that the testimony was inadmissible under N.J.R.E. 404(b). In effect, the prosecutor said that she sought to offer C.B.'s testimony to prove defendant's disposition to act with T.B. in conformity with his preference for anal sex with C.B. Evidence rule 404(b) expressly prohibits admission of 'evidence of other ... acts ... to prove the disposition of a person in order to show that such person acted in conformity therewith.' N.J.R.E. 404(b)....

Also significant in gauging prejudice to defendant under N.J.R.E. 403 and 404(b) is the trial court's failure to give any limiting instruction with respect to C.B.'s testimony about anal sex." (Rubin M. Sinins)
http://www.judiciary.state.nj.us/opinions/a0502-08.pdf

Earlier this month, the NJ Appellate Division held that a prior conviction for Refusing to Submit to the taking of breath samples qualifies as a prior conviction for subsequent NJ DWI sentencing. This creates new challenges for NJ DWI-DUI defense attorneys and drunk driving defendants.

In State v Ciancaglini, the State appealed from the Law Division trial court's decision that the defendant should have been sentenced as a first offender for her DWI conviction. Defendant was previously convicted of Driving while Intoxicated in 1979. In 2006, she was convicted of refusing to take the breathalyzer test. The Law Division discounted those convictions and gave the defendant the 10-year step down and also did not count the prior Refusal charge as a prior conviction. On appeal, the court agreed with the State that defendant's prior convictions required that she be sentenced as a third-time DWI offender, subjecting her to 10 years license suspension, 6 months jail and a $1000 fine.

In this case, the appellate division recently reversed the conviction of a defendant convicted of terroristic threats after the trial court improperly admitted evidence.

State v. Anthony Parisi, unpublished opinion, App. Div. Docket No. A-4660-07T4 (December 18, 2009) - Conviction for terroristic threats reversed. "[T]he improper admission of defendant's letters threatening to sue CSP as well as other fundamentally irrelevant testimony about defendant's threats to file lawsuits against DeCamp and Zoyac may have confused the jury.

It was error to admit the letters to rebut a claim of mistake, under N.J.R.E. 404(b), because the defense made no such claim. Nor were the threats to file lawsuits otherwise relevant. Indeed, rather than focusing its case on the events of December 18, 2002, the prosecution placed before the jury prejudicial and irrelevant evidence designed to show that defendant was angry and difficult to deal with." See also JURY INSTRUCTIONS. (Rasheedah R. Terry, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a4660-07.pdf

In this case, the NJ Appellate Division reversed the defendant's conviction after deciding that the trial judge allowed unfairly prejudicial testimony to be presented to the jury.

State v. Amidou Kabre, unpublished opinion, App. Div. Docket No. A-4393-07T4 (December 22, 2009) - Conviction reversed. "Defendant asserts ... that the testimony presented by Officer Kempf, in which the officer described the contents of defendant's black bag and suggested to the jury that defendant was part of conspiracy to illegally export stolen vehicles, should have been excluded as unduly prejudicial.

In particular, defendant maintains that the judge should not have permitted Kempf to testify about the business cards for salvage dealers, insurance companies and locksmiths.

Defendant also contends that the judge should not have permitted Kempf to opine that these documents 'showed a clear trail,' and that 'if somebody gets a salvaged vehicle, switch[es] the VIN plate with a stolen vehicle, puts that vehicle on a ship and sends [it] overseas, it shows a greater conspiracy.'...

In our view, the evidence of the fifty business cards for salvage companies, locksmiths and insurance companies, as well as the salvage titles for a number of other vehicles, were enormously prejudicial. No reasonable juror hearing such evidence could come to any conclusion other than that defendant was involved in the business of exporting stolen vehicles out of the country.

While a juror may not himself or herself have drawn such an inference merely from a listing of the items found in defendant's black bag, any doubt that a juror may have had about whether defendant was involved in criminal activity was laid to rest by Kempf's comment that there was 'a trail here,' because such documents are used when 'stolen vehicles get VIN plates ... and get shipped out of the country.'...

[E]ven though the probative value of the evidence was strong, its prejudice was even greater. Nothing could be more damaging than evidence that defendant is a criminal involved in a wide-ranging scheme to prey upon innocent victims, steal their property, and ship it out of the country for profit. We thus conclude that the prior bad acts evidence in question should not have been admitted because its probative value was exceeded by its prejudice." (Donald F. Browne, Jr.)
http://www.judiciary.state.nj.us/opinions/a4393-07.pdf

In this recent New Jersey criminal case successfully appealed, the appeals court found that the trial judge erred by admitting a nurse's testimony into evidence where that testimony contained inadmissible hearsay, expert testimony, and other improprieties.

State v. K.E., unpublished opinion, App. Div. Docket No. A-4422-07T4 (December 22, 2009) - Convictions reversed. "We first address defendant's contention that the testimony of Treston [a nurse-practitioner who examined the victim at the State's request] contained inadmissible, prejudicial evidence.

[W]e agree, concluding that Treston's testimony was replete with inadmissible hearsay statements, expert testimony, and other-crimes evidence which unfairly prejudiced defendant.... Treston was allowed to provide expert testimony harmful to the defendant, although she was not qualified by the court as an expert witness.

Treston expressed her opinion, based on her observations of E.A. and her years of experience, that E.A. had been 'battered [and] beaten down.'... Treston was not proffered by the State as an expert witness, she was not qualified by the court as an expert witness, and the court did not give the jury the standard charge on expert witness testimony....

In her expert opinion and at other points in her testimony, Treston expressed her opinion that E.A. has sustained multiple anal assaults.... In addition to the hearsay and expert testimony problems noted above, this testimony also constituted other-crimes evidence under N.J.R.E. 404(b)....

If the jury was doubtful whether or not to believe E.A., the testimony of Treston that repeated and augmented E.A.'s testimony, that tended to bolster the credibility of E.A., and that denigrated defendant with inadmissible other-crimes evidence, had the grave potential to impermissibly influence the jury resulting in a miscarriage of justice." (Jeffrey C. Zucker; Jack L. Weinberg, on the brief)
http://www.judiciary.state.nj.us/opinions/a4422-07.pdf

In this NJ criminal case recently decided on appeal, the Appellate Division held that a defendant cannot be found guilty as an accomplice unless he or she shared the intent to commit each charged offense. If you have lost in any Municipal, Criminal, or Civil court in New Jersey, contact a former Appellate Division Judiciary Attorney for an evaluation of your case.

State v. Whitaker, ? N.J. ?, 983 A.2d 181 (2009) - Reversal of convictions for felony murder, robbery, and weapons possession affirmed. "Under the Code, accomplice liability requires that a defendant act '[w]ith the purpose of promoting or facilitating the commission of the offense.' N.J.S.A. 2C:2-6(c)(1). Defendant could not be found guilty of robbery and felony murder unless he shared Davis's intent to commit a theft before or at the time that Davis shot the victim.

[T]he prosecutor improperly advised the jury that it could convict defendant of robbery and felony murder solely on the ground that he aided Davis in his escape, even if he did not participate or assist in any way in the attempted robbery....

[I]n this case, after Davis fatally shot Hernandez, the first-degree robbery had occurred. Unless defendant intended to promote or facilitate the theft committed by Davis before or at the time of its occurrence, defendant is not a culpable party to the robbery.... [D]efendant cannot be held liable as an accomplice to a robbery solely based on his conduct after Davis had already robbed and fatally wounded the victim....

[I]f defendant lacked the specific intent to commit the theft but instead intended only to assist in hindering Davis's apprehension, defendant would be guilty only of the crime of hindering." (Kevin G. Byrnes, Designated Counsel)

In many towns through New Jersey (especially college towns such as New Brunswick, West Long Branch and Ewing) citizens find themselves charged with both local and state noise violations as a result of parties, loud machinery and other "excessive-noise" creating activities.

In most cases, the individual charged will plead guilty and pay the summons. However, in some cases the fines can be hundreds or even thousands of dollars. In particular, college towns are known to levy extremely punitive fines on students who host loud parties in an effort to curtail such activity.

There are defenses to such charges, but most are technical in nature and require some experience dealing with such matters. In many cases, the police officer who issued the ticket was not properly trained, did not use the proper equipment, and did not record the requisite reports. The Law Office of Anthony J. Vecchio has successfully defended such noise violations, saving past clients literally thousands of dollars. If you have received an excessive noise violation, contact a New Jersey criminal defense attorney for a free consultation.

The Law Office of Anthony J. Vecchio, LLC has unique experience representing parents whose family's are involved with DYFS. In many cases, the story unfortunately ends with DYFS petitioning the courts for guardianship of the children at issue. This can result in the sometimes tragic termination of the parents parental rights to their children. The following describes the legal standard which DYFS must meet in such cases.

A parent's interest in the care, custody and control of her children is a fundamental liberty protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution, as well as the New Jersey Constitution. Meyer v. Nebraska, 262 U.S. 390; 43 S.Ct. 625; 67 L. Ed. 1042 (1923); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).

This right, however, is not absolute and must be "tempered by the State's parens patriae responsibility to protect the welfare of children . . . . [that] is achieved through the best interests of the child standard." K.H.O. at 347. The best interests standard was codified in N.J.S.A. 30:4C-15.1(a) and sets forth the four prongs that DYFS must demonstrate before the termination of parental rights is proper.
Specifically, N.J.S.A. 30:4C-15.1(a) provides that termination of parental rights is only appropriate where DYFS demonstrates, by clear and convincing evidence, that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

N.J.S.A. 30:4C-15.1.

To carry the burden under this statute, DYFS must "demonstrate clearly and convincingly that 'the child's best interests will be substantially prejudiced' if parental rights are not terminated." In re Guardianship of J.C., 129 N.J. 1, 8 (1992) (quoting In re Guardianship of Cope, 106 N.J. Super. 336, 340-41 (App. Div. 1969)). As such, "strict standards must be satisfied." In re Adoption by D.M.H., 135 N.J. 473, 481, cert. denied, 513 U.S. 967, 115 S.Ct. 433, 130 L. Ed.2d 345 (1994); accord In re Guardianship of K.L.F., 129 N.J. 32, 37 (1992). "[A]ll doubt must be resolved against termination of parental rights." K.H.O. at 347.

In most municipal court, traffic, and even criminal matters, plea bargaining is a vital tool at the prosecutor and defense attorney's disposal. Plea bargaining allows the defendant to plea to a reduced charge in exchange for the state's dismissal of the more serious original charge. Your chances of receiving the most favorable plea bargain are obviously increased greatly by having an experienced NJ criminal defense attorney with you at court.

However, because of the strong political and policy forces behind NJ DWI-DUI law, there is no plea bargaining on a drunk driving charge in New Jersey. For example, reckless driving, a 5-pt ticket commonly issued along with a DWI, cannot be pleaded to in exchange for the state's dismissal of the DWI summons.

The only exception to this ban on DWI plea bargains is when the prosecutors feels that there is an evidentiary or proof problem with their DWI case. In such a case, the prosecutor may ask the defendant to simply stipulate that their was probable cause to arrest and then dismiss the charge.

If you are convicted of a New Jersey DWI/DUI, your sentence will include the requirement that you attend the Intoxicated Driver Resource Center (IDRC). This is in addition to other severe penalties such as license suspension, fines, community service and jail. If you have been charged with DWI/DUI, contact a New Jersey DWI/DUI lawyer for a free evaluation of your case.

The IDRC is a alcohol and drug awareness resource center with locations in each county for first and third offenders. Only three regional centers exist for second offenders. You will be required to stay at the IDRC overnight to attend an alcohol and highway safety education program. IDRC evaluates each individual for any alcohol or drug problem and then determines the need for treatment. If it is determined by IDRC that treatment is needed in your case, IDRC refers the offender to an appropriate provider for a 16-week minimum rehabilitation treatment. The offender may also supplement the treatment with attendance at a self-help group, with both extending to a maximum of one year for IDRC purposes. The IDRC monitors compliance and reports noncompliance to the courts and to DMV/MVC.

IDRC charges an "entry fee." The applicable IDRC fees and other related charges are:
$100 attendance fee
$150 first offender fee
$200 second offender fee

Improper Passing is a commonly issued traffic ticket in New Jersey. N.J.S.A. 39:4-85 makes it illegal to pass another vehicle from less than a safe distance or in any manner that is unsafe. A violation of this statute carries 4 motor vehicle and insurance eligibility points, a fine of up to $200, and up to 15 days in jail. The fine is doubled in a highway construction zone or in a 65-mile per hour zone. If you have been charged with Improper Passing in New Jersey, contact an experienced NJ criminal defense and municipal court attorney for a free consultation.

New Jersey has some of the strictest gun control laws in the country. However, under the United States Constitution, you have the right to own a firearm, plain and simple. The process of obtaining a permit to own or possess a firearm or handgun in New Jersey can be cumbersome. Moreover, local police chiefs, who are responsible for processing such permit applications, frequently violate New Jersey law in denying these applications. If you have been denied a permit to purchase or possess a firearm/handgun, contact an attorney experienced in such mattes for a free consultation.

Our Legislature has expressed the baseline presumption that all New Jersey residents are eligible to apply for and receive a New Jersey FPIC unless they meet one of the specifically enumerated disqualifying criteria. In re Boyadjian, 362 N.J. Super. 463 (App. Div.) cert. denied, 178 N.J. 250 (2003). The existence of good cause for denial of a resident's application for a Firearm Permit Identification Card (FPIC) and Permit to Purchase a Handgun (PPH) must represent a burden to be carried by the local Police Chief, and to be established by a fair preponderance of the evidence. Weston v. State, 60 N.J. 36, 46 (N.J. 1972). I

n evaluating the facts presented by the Chief, and the reasons given for rejection of the application, the reviewing court should give appropriate consideration to the Chief's investigative experience and to any expertise he appears to have developed in administering the statute.
The governing statute, N.J.S.A. 2C:58-3 provides, in pertinent part:
No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth. No handgun purchase permit or firearms purchaser identification card shall be issued:

(1) To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence ... whether or not armed with or possessing a weapon at the time of such offense;

(2) To any drug dependent person.... [T]o any person who is confined for a mental disorder to a hospital, mental institution or sanitarium, or to any person who is presently an habitual drunkard;

3) To any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder, or to any alcoholic unless any of the foregoing persons produces a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in the handling of firearms...

***

(5) To any person where the issuance would not be in the interest of the public health, safety or welfare....

The broad, catchall provision in section (5) was designed to prevent firearms from coming into the hands of persons likely to pose a danger to the public. Hoffman v. Union County Prosecutor, 240 N.J. Super. 206, 211 (Law Div. 1990). This portion of the statute allows courts to review criminal charges and complaints that were ultimately dismissed or otherwise similarly disposed of, but the State bears the burden of proving that the Appellant poses a continued public or personal danger. In re Osworth, 365 N.J. Super. 72, 77-79 (App. Div. 2003). The sole issue in fitness is an applicant's current qualification to possess a firearm; the past may only be inquired about to the extent that it reasonably relates to an applicant's present fitness. Application of Marvin, 53 N.J. 147, 156-57 (1969) citing Schware v. Board of Bar Examiners, 353 U.S. 232, 24447, 77 S. Ct. 752, 1 L. Ed. 2d 796, 804-06 (1957).
Where error in factfinding of a judge is alleged, the scope of appellate review is limited. State v. Locurto, 157 N.J. 463, 470-71 (1999). The court will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. Ibid. The court gives "due regard" to the ability of the factfinder to judge credibility. Ibid. However, a factfinding court cannot base its decision upon speculation. State v. One Marlin Rifle, 319 N.J. Super. 359, 371 (App. Div. 1999).

The ex post facto clauses of the United States and New Jersey Constitutions have been cited in attempts to strike down New Jersey's civil commitment laws. Under both the State and Federal Constitution, the Ex Post Facto Clause cannot be violated without the imposition of punishment. Doe v. Poritz, 142 N.J. 1, 42 (1995); Kansas v. Hendricks, 521 U.S. 346, 361117 S. Ct. 2072, 2082, 138 L. Ed. 2d 501, 515 (1997). As the SVPA is a civil statute providing for treatment of the sexually dangerous, it does not impose punishment. State v. Bellamy, 178 N.J. 127, 138 (2003). This argument is therefore without merit.

Sex offenders civilly committed in New Jersey have a high standard to meet on appeal. It is well settled that the scope of appellate review of such matters is extremely narrow. In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), cert. denied, 177 N.J. 490 (2003). The reviewing court on appeal must give 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." In re Commitment of J.M.B., 395 N.J. Super. 69, 90 (App. Div) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)), cert. granted, 193 N.J. 222 (2007). The reviewing judge's determination in that regard is "subject to modification only where the record reveals 'a clear abuse of discretion.'" In re Commitment of M.L.V., 388 N.J. Super. 454, 465 (App. Div. 2006) (quoting J.P., supra, 339 N.J. Super. at 459), cert. denied, 190 N.J. 255 (2007).

Persons who are deemed to be sexually violent predators may be civilly committed under the Sexually Violent Predators Act (SVPA). N.J.S.A. 30:4-27.24 to -27.38. This basically allows the State to keep a sex offender confined indefinitely, even after they have served their sentence.

The State must establish by clear and convincing evidence that the person has behaved in a sexually violent manner in the past and is highly likely to reoffend in the future as a result of a mental abnormality or personality disorder that affects the individual's emotional, cognitive or volitional capacity. In re Commitment of W.Z., 173 N.J. 109, 120 (2002); N.J.S.A. 30:4-27.26.

It is well-settled that statements made during custodial interrogation are inadmissible unless preceded by Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). "Interrogation" in this context had been defined as express questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 3011980). The test to determine whether a defendant has been the subject of the functional equivalent of interrogation is whether the police knew, or should have known, that their conduct was reasonably likely to elicit an incriminating response from the person. An "incriminating response" is any response - whether inculpatory or exculpatory - that the prosecution may seek to introduce at trial. State v. Ward, 240 N.J. Super. 412, 418 (App. Div. 1990).

However, If a criminal defendant has not been interrogated, and instead makes a spontaneous and voluntary statement, the statement is admissible against the defendant. Id. at 419. This is true provided that the statement was not the product of enticement, encouragement, solicitation or the non-verbal investigative techniques designed to elicit a response. Id. at 417.

In this recent NJ expungement case decided on appeal, the court reiterated New Jersey law on the limit of disorderly persons crimes that may be expunged. No more than three prior disorderly persons convictions may be expunged. However, the petitioner seeking expungement in this case argued, unsuccessfully, that multiple conviction stemming from the same chain of events should be counted as single convictions for expungement purposes. Under the facts of this case the court disagreed.

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