New Jersey Criminal Defense Attorney Blog

State v. Bernard E. Lopez, ? N.J. Super. ?, 2010 N.J. Super. LEXIS ? (December 9, 2010) - "Because the trial court erroneously barred defendant from testifying in the second trial, thus depriving him of a fundamental constitutional right, we reverse the certain persons conviction, vacate the five-year sentence imposed and remand for a new trial on that charge.... This ruling was apparently premised on the judge's view that the trial on the certain persons charge was merely the second phase of the first trial, and that defendant's waiver of the right to testify in the first phase carried over to the second phase. That view was erroneous. Although it was heard by the same jury, the second proceeding was a separate trial, in which defendant retained all of his constitutional due process rights, including the right to testify.... Consequently, a waiver of the right to testify in the unlawful possession trial does not constitute a waiver of the right to testify in a later trial on a separate charge."