New Jersey Criminal Defense Attorney Blog

NJ Juvenile's Confession Deemed Involuntary

2010-09-03T17:40:11Z

State in the Interest of A.S., a Juvenile, ? N.J. ?, 2010 N.J. LEXIS ? (July 29, 2010) - Adjudication of delinquency reversed, juvenile's confession suppressed.

]]> "A.S., a fourteen year old with an I.Q. of 83 and who could
read only at a third-grade level, was adjudicated delinquent for conduct that, if committed by an adult, would constitute first-degree aggravated sexual assault. On appeal, she challenged the circumstances under which she was provided her constitutional warnings and then was subjected to police interrogation.... We hold that that A.S.'s confession was secured under circumstances
that, in their totality, rendered her statement involuntary. In State v. Presha, 163 N.J. 304, 315 (2000), we said that a parent should be present, if at all possible, during the interrogation of a juvenile and, further, we said that that presence would be considered a significant factor in an assessment of the totality of the circumstances when determining the voluntariness of a child's confession. We agree with the Appellate Division that A.S.'s confession cannot be safely regarded as a voluntary waiver of her constitutional rights. The police placed A.S.'s mother in the role of their helper from the outset of the interrogation process by making her read the child her rights. The police also failed to correct the mother's later misstatements about those rights, and failed to stop the inquiry when A.S. was making imperfect, child-like efforts to assert her right to silence that were overcome by her mother's badgering of her in the police presence. Under a totality of circumstances analysis, a confession secured by such means must be suppressed.... Here, the confession was by far the most damning piece of evidence against A.S., and thus we cannot say that there was no reasonable possibility that its introduction into evidence contributed to the delinquency adjudication.... Indeed, it may have been the source of most of the record support for finding that there was an element of sexual gratification in this matter. We do not suggest that without the confession the State will be unable to prove its case -- there may be sufficient evidence to obtain a delinquency adjudication on remand -- but that is not the legal standard that governs this dispute.... We decline to embrace a categorical rule that an attorney must be present any time that there is perceived clash in the interests of a parent based on a familial relationship with the victim or another involved in the investigation. Even in cases of such apparent clashing interests, a parent may be able to fulfill the role envisioned in Presha. And, in those cases where a parent is truly conflicted, another adult -- not necessarily an attorney -- may be able to fulfill the parental assistance role envisioned by Presha. Moreover, when it is apparent to interrogating officers that a parent has competing and clashing interests in the subject of the interrogation, the police minimally should take steps to ensure that the parent is not allowed to assume the role of interrogator and, further, should strongly consider ceasing the interview when another adult, who is without a conflict of interest, can be made available to the child."

US Softens on Deportation Criteria for Illegal Aliens

2010-09-02T13:05:34Z

Signaling the implementation of a kinder, gentler, more lenient deportation policy, the director of U.S. Immigration and Customs Enforcement (ICE, formerly INS) has ordered the agency's attorneys to halt the deportation proceedings of aliens who may now be eligible for a green card.

Those who may be affected by the ruling include those who are married or related to a U.S. citizen or a legal resident who has filed a petition on their behalf. Anyone seeking refuge under the ruling must never have been convicted of a crime.

Specifically, ICE agents will dismiss deportation proceedings against those now eligible under the new criteria: `Where there is an underlying application or petition and ICE determines . . . that a non-detained individual appears eligible for relief from removal, [its attorneys] should promptly move to dismiss proceedings.''

Defendant Entitled to "Gap" Credit Time, Says Appellate Court

2010-09-01T11:50:10Z

State v. L.H., unpublished opinion, App. Div. Docket No. A-0602-09T4 (June 16, 2010) - Award of 2,145 days of gap time credits affirmed. "They were awarded because the sentence under review relates to a crime that occurred before the sentences resulting in those periods of incarceration were imposed and served.... The State contends that the award contravenes the policy of the Legislature as embodied in the DNA Database and Database Act, N.J.S.A. 53:1-20.17 to 53:1-20.31 (DNA Act), requiring convicted offenders to submit DNA samples, used by the CODIS system to identify perpetrators of other crimes. The present crime occurred October 25, 1994.... The State argues that if defendant receives the credits, even against 'the back end' of the sentence, ... , in a case like this involving a 1994 crime, defendant, who was subsequently sentenced in 1999 and 2001, will end up with no additional time to serve and will receive, in essence, a 'free crime.' But that is the consequence of N.J.S.A. 2C:44-5b(2), as it is presently codified.... The statute, as written, must be 'literally applied.'... The practical problems caused by cases like this can often be addressed by the negotiated plea or by the sentence imposed in the absence of a plea. Under the Code of Criminal Justice, the judge should take into account the real time to be served and parole consequences of a plea recommendation and sentence. See N.J.S.A. 2C:44-1c(2)."

NJ Judge Should Have Allowed Defendants Convict's Father To Speak at Sentencing

2010-08-31T12:07:37Z

State v. Karlton L. Blackmon, ? N.J. ?, 2010 N.J. LEXIS ? (June 9, 2010) - Order remanding case affirmed as modified. Remand will be for judge to provide statement of reasons for his refusal to allow defendant's father to speak before sentencing, not for re-sentencing.

]]> "By constitutional amendment, statute, and our Court Rules, a class of people who have a right to be heard in person in connection with a sentencing has been established, and it is a universe that does not include family, friends or supporters of defendants. We cannot, however, end our analysis of this matter with that observation because juxtaposed against that framework of unquestioned rights are practices that sentencing courts routinely follow.... [S]entencing courts commonly permit defendants' family members and others, including spiritual advisors, to address the court in an effort to call attention to facts about the defendant that bear upon the sentence to be imposed but are not otherwise plain from the record.... It is in failing to consider the possibility that the sentencing court could have articulated an appropriate reason for rejecting the request that defendant's step-father be heard, and in mandating that he be heard in the course of a new sentencing proceeding, that the panel erred. The defect in the sentencing proceeding was not necessarily in the court's choice, but in failing to explain the reasons for deciding to reject it and, as a result, in failing to create an adequate record for review.... In an abundance of caution, and in keeping with our concern that proceedings not only are fair but that they be conducted so as to assure the public and participants that they are fair, we are constrained to remand this matter to the sentencing court for further proceedings consistent with this opinion."

Jersey Police Officer's Search Exceeded Scope of Investigatory Stop

2010-08-30T12:44:52Z

State v. Tyson R. Privott, ? N.J. ?, 2010 N.J. LEXIS ? (June 29, 2010) - Appellate Division opinion suppressing evidence affirmed.

]]> "In this case, we must determine whether the police had reasonable suspicion to subject defendant to an investigatory detention, and if so, whether the resultant search was conducted in a reasonable manner.... We hold that the totality of the circumstances justified an investigatory stop, but that because the search was not limited in scope to an intrusion reasonably designed to protect the officer and to discover a weapon, the fruits of the search must be suppressed.... Here, the relevant circumstances extend well-beyond an isolated anonymous tip of man with a gun at a particular location. As the officer approached and made eye contact with defendant, who partially matched the description given by the anonymous informant, the officer recognized defendant from prior narcotic arrests. The officer also knew that defendant was associated with violent gangs that were responsible for recent shootings in the area.... Defendant appeared nervous, walked away from the officer, and moved one hand towards his waistband. From his extensive experience in the field, the officer was aware that the waistband is an area commonly used by armed persons to conceal a weapon. Based on the totality of the circumstances, we conclude that there were specific and particularized reasons for the officer to conduct an investigatory stop.... Indeed, the same conduct that justifies an investigatory stop may also present the officer with a specific and particularized reason to believe that the suspect is armed.... That is the situation presented here. Specifically, when defendant walked away and placed his hands near his waistband, a reasonable officer with the background knowledge of the conditions in that area, and who had received an anonymous tip of a man with a gun, would have an objectively reasonable concern for his or her safety. Thus, we conclude that the totality of circumstances justified the officer's decision to frisk defendant.... When stopped, defendant placed his hands against a fence as instructed by the officer. A reasonable search, as well as the least intrusive maneuver needed to protect the safety of the officer against a possible weapon, would have been the traditional pat-down search of defendant's outer clothing. That did not occur. Rather, the police officer lifted defendant's tee-shirt to expose defendant's stomach, and in doing so, observed a plastic bag with suspected drugs in the waistband of defendant's pants. That maneuver exceeded the scope of the patdown search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search of defendant that is not condoned."

New Jersey Defendant Has No Standing to Challenge Search of Abandoned Property

2010-08-27T15:04:48Z

State v. Pablo Carvajal, ? N.J. ?, 2010 N.J. LEXIS ? (June 2, 2010) - Conviction and denial of suppression affirmed.

]]> "In State v. Johnson, 193 N.J. 528, 548-49 (2008), we held that a criminal defendant has no standing to challenge the search or seizure of 'abandoned' property. In this appeal, we apply and adapt the standards enunciated in Johnson to the case of an unclaimed duffel bag left on a bus.... Defendant knowingly and voluntarily disclaimed any ownership or possessory interest in the bag in response to police questioning, and every other passenger on the bus denied owning the bag.... Unlike in Johnson, defendant in this case was not holding the bag. From the objective viewpoint of the police, defendant, arguably, had no apparent control or ownership interest in the unclaimed duffel bag on the bus. The bag did not have an exterior tag indicating that defendant had a possessory interest. Moreover, defendant did not have a claim ticket for the bag and, in response to police questioning, he denied traveling with any luggage or even having a change of clothing.... We reject defendant's argument that a person cannot knowingly and voluntarily relinquish a possessory or ownership interest in a piece of luggage that may incriminate him in response to non-coercive police questioning. If we accepted defendant's position, the methodic questioning by the police of the bus passengers to determine who owned the unclaimed bag would be an effort in futility because anyone who answered 'no' to owning luggage could later step forward and assert standing to challenge the warrantless search. That would mean that property could never be considered abandoned under circumstances such as here; in each case the police would have to secure a warrant.... Because the State proved that the duffel bag was abandoned property, defendant had no standing to challenge the warrantless search."

NJ Criminal Conviction Reversed For Prosecutorial Misconduct

2010-08-24T18:29:08Z

State v. Timothy A. Paziora, unpublished opinion, App. Div. Docket No. A-1396-08T4 (June 10, 2010) - Convictions reversed because "the prosecutor's summation exceeded the bounds of legitimate advocacy" in numerous respects.

]]> "In some portions of her closing, the prosecutor broadly claimed that Angie's calendar was 'powerful corroborative evidence' that verified 'each and every incident, every situation. This is the corroboration.' Such comments were clearly improper because, as defendant correctly argues, the calendar did not corroborate Kate's allegations. It merely verified that defendant stayed overnight at Angie's home. Therefore, to the extent that the prosecutor suggested to the jurors that they should use the calendar to 'check each time' and use the calendar 'to confirm and verify' Kate's allegations, the prosecutor mischaracterized the evidence and urged the jury to draw an improper inference. Quite simply, the calendar did not verify the alleged victim's accusations.... A review of all of the prosecutor's references to Angie's calendar demonstrates that the instances where the prosecutor asked the jury to draw the improper inference that the calendar corroborated Kate's allegations vastly exceeded the instances where the prosecutor's references to the calendar were proper. For that reason, the prosecutor's arguments respecting the calendar ran afoul of the limits the Court established ... because the prosecutor asked the jury to draw inferences that were not supported by the evidence.... We view the prosecutor's remarks here - 'he can't really go with believability and credibility and consistency ... because he knows after listening and hearing from his client . . . versus the State's witnesses that it's going to be guilty' -- as strikingly similar to the argument we condemned in Lockett [249 N.J. Super. 428, 434].... As in Lockett, the prosecutor's statement here that defense counsel knew his client was guilty casts unfair aspersions on defense counsel. Such an argument suggested to the jury in no uncertain terms that defense counsel was knowingly representing a guilty man. This unwarranted attack on defense counsel unfairly impugned his integrity and demeaned him and is therefore an instance of prosecutorial misconduct.... Defense counsel promptly objected, the judge overruled counsel's objection and refused to give a curative instruction to the jury. The jury was not even aware that the judge told the prosecutor to 'rephrase' her argument. [W]e conclude that defendant has established all three criteria for the granting of a new trial: the remark was highly improper; defense counsel objected promptly; and the judge refused to intervene.... [W]hen we view the prosecutor's summation in its entirety, we conclude that her arguments are rife with improper comments. In the aggregate, the prosecutor's closing asked the jury to draw inferences that were not supported by the evidence, denigrated defense counsel and demeaned his role, suggested that defense counsel was defending a man he knew was guilty and accused defendant of planning to commit crimes of which he was never charged."

Monmouth County PTI Policy Called "Confusing" by Appellate Panel

2010-08-20T13:31:57Z

State v. Robert Duane Green, ? N.J. Super. ?, 2010 N.J. Super LEXIS ? (June 7, 2010) - Remanded for reconsideration of defendant's PTI application.

]]> "This case is before us on remand from the Supreme Court. The case arose from a Law Division order denying defendant Robert Green's appeal from his exclusion from the pre-trial intervention program (PTI). In our opinion, we concluded, based on the record then before us, that Green had not been permitted to apply for PTI. State v. Green, 407 N.J. Super. 95 (App. Div.), remanded, 200 N.J. 471 (2009).... The State petitioned for certification from our decision and filed a motion to supplement the record with materials intended to show that defendant had been permitted to apply for PTI under the new policy. The Court granted the motion and remanded the case to us to reconsider in light of the supplemental materials.... The supplemental materials include a June 11, 2009 certification from the vicinage PTI director.... We have reviewed this form. It is captioned 'Notice of Pretrial Intervention (PTI) Ineligibility,' and the first sentence unequivocally states: 'Your case has been pre-screened by the Monmouth Vicinage Criminal Division and found to be ineligible pursuant to R. 3:28.'... [T]he Notice of PTI Ineligibility, while no doubt well-intentioned, is confusing. By lumping together applicants who are ineligible with those who are eligible but have hurdles to overcome, the form may discourage eligible defendants from applying for PTI. Any defendant reading the form could readily conclude that he or she was 'ineligible' for PTI and should not apply.... At a minimum, PTI forms and directions should explain, in plain language that would make sense to a defendant, the criteria for admission to the program and the process for applying.... [T]he criminal division may evaluate the merits of a PTI application when it is first submitted, or may withhold evaluation of an application until the prosecutor has considered it.... However, at some point the criminal division must consider the merits of the application, even if that evaluation is expressed in a very brief recommendation adopting the prosecutor's rationale for rejecting the application.... The criminal division may not 'defer' to the prosecutor in the sense of declining in advance to give any consideration to the merits of a defendant's application unless the prosecutor joins in the application. The latter form of 'deference' gives the prosecutor complete control over the PTI application process, while abdicating the role of the court-managed PTI program in evaluating PTI applications."

NJ Prosecutor May Not Condition PTI Admittance on Guilty Plea

2010-08-19T11:40:31Z

State v. Daniel Davies, unpublished opinion, App. Div. Docket No. A-1454-08T4 (June 18, 2010) - "[W]e vacate the inclusion of the impermissible extraction of a guilty plea as a condition of defendant's admission into the PTI program....

]]> The record clearly shows that the prosecutor would consent to defendant's admission into the PTI program only if defendant, as a condition of that disposition, would plead guilty to a third degree offense of resisting arrest. The prosecutor imposed that condition after defendant had initially been rejected as a candidate for PTI, and the trial court had upheld that initial rejection.... It is ... plain that the PTI Guidelines expressly forbid prosecutors from conditioning, whether formally or informally, a defendant's entry into the PTI program upon a plea of guilt to a criminal offense.... Consequently, the prosecutor's insistence in the present case on defendant entering into a guilty plea albeit a conditional one subject to being potentially vacated in the future upon successful completion of PTI was contrary to the program's statutory purpose and Guidelines. Having concluded that the guilty plea was improperly imposed as a condition of PTI admission, the question then becomes what remedy should be applied, beyond simply vacating that aspect of the plea agreement. Because more than a year has passed since the August 2008 disposition, it may very well be the case that defendant has already completed the PTI program successfully and that the guilty plea will be vacated anyway consistent with the negotiated agreement.... If, on the other hand, defendant has not yet completed PTI successfully, then further examination of the remedial options flowing from our determination of an invalid condition is warranted. Such an examination, if it proves to be necessary, should be conducted in the first instance in the trial court, subject to our potential review thereafter. In fashioning a remedy, the trial court shall ensure that defendant is not made worse off for having taken this meritorious appeal of the PTI issue."

Appellate Division Reverses NJ Defendant's PCR Denial for Ineffective Assistance of Counsel

2010-08-17T11:26:40Z

State v. Demitrius Middleton, unpublished opinion, App. Div. Docket No. A-4842-07T4 (June 10, 2010) - Denial of PCR reversed, case remanded for new hearing. "The record does not permit us to conclude that PCR counsel listed or incorporated all of the claims raised in defendant's pro se verified petition. The PCR petition did not identify the three claims underlying defendant's request for relief because his trial attorney failed to provide the representation guaranteed by the constitution. Nor did defense counsel mention defendant's claim that he was not present when his judgment of conviction was amended to reflect a thirty-year period of parole ineligibility rather than a NERA term following this court's remand for 'reconsideration in light of Manzie.' Moreover, we now have letters, the authenticity of which has not been established, that suggest defendant asked his PCR counsel to raise additional issues that were not addressed. Under the circumstances, we conclude that a remand is required. On remand, with assistance of different appointed counsel, the judge should consider any argument related to issues raised in defendant's pro se verified petition that was not previously presented to the judge."

Defense Counsel Must Raise All Possible Issues on NJ PCR

2010-08-16T18:02:37Z

State v. Francis Gannone, Jr., unpublished opinion, App. Div. Docket No. A-1231-07T4 (June 10, 2010) - Denial of PCR reversed. "Because defendant was entirely denied the effective assistance of counsel in pursuit of his PCR, we reverse and remand for a proper PCR hearing.... In short, defendant asserts that his PCR attorney violated the Rule because he did not communicate with him in any substantial way before the hearing, failed to advance defendant's arguments or explore other possible arguments, limited his brief to one argument that had no merit whatsoever, and even went so far as to denigrate those arguments that defendant had wanted made. The State's brief does not even cite or discuss the Rule, relying instead on a Strickland analysis. As noted, Strickland is irrelevant in this context. The only question is whether defendant received the services to which he was entitled under the Rule. Unquestionably, he did not."

Jury Should Not Have Been Allowed to View "Sketch" of NJ Murder

2010-08-13T12:11:30Z

State v. Reynaldo Chavis, unpublished opinion, App. Div. Docket No. A-6326-06T4 (June 28, 2010) - "Because a sketch of the scene of a different homicide apparently was appended to a photograph and admitted into evidence over defendant's objection, we conclude that the trial judge erred in dismissing defendant's claim of ineffective assistance of counsel without a hearing.

Accordingly, we remand for further proceedings.... It may well be that the assistant prosecutor assigned to try this case understood her obligation to present only admissible evidence and effectively removed the sketch before the photograph was submitted to the jury. But nothing in this record gives rise to that inference....

Without evidence outside the trial record, such as a certification from one or both of the trial attorneys attesting to the removal or the production of the photograph submitted to the jury, the judge's factual finding has no support. There is no question that admission of a wholly irrelevant sketch of an unrelated homicide scene raises a serious question about the validity of defendant's conviction....

In this case, the abuse of discretion is palpable.... We have no question that defendant presented a prima facie case of deficient performance by appellate attorney for failure to raise an issue of this magnitude and resulting prejudice. Accordingly, we must remand to permit the trial judge to develop a record and make findings of fact supported by competent evidence before resolving this claim. The judge's decision suggests that he believed that defendant was required to establish prejudice by showing that the jurors viewed the sketch during deliberations. We disagree."

Jury Should Not Have Been Allowed to View "Sketch" of NJ Murder

2010-08-13T11:39:10Z

NJ Criminal Defendant Claims Attorney Failed to Advise of Deportation

2010-08-12T12:29:35Z

State v. Jaime Calero, unpublished opinion, App. Div. Docket No. A-6266-08T4 (June 22, 2010) - Denial of PCR reversed, case remanded for evidentiary hearing. "With respect to defendant's allegations that his attorney pressured him into naming the wrong person [as the man he struck], thus obviating the court's finding that he pled guilty freely and voluntarily, the PCR judge found that defendant's claim lacked merit....

Here, we are satisfied that defendant's claims required further exploration in an evidentiary hearing because, if in fact defense counsel pressured defendant into pleading guilty to assaulting a person other than the individual identified as the victim in the indictment, his guilty plea cannot stand.... we are satisfied that the record does not support the PCR court's finding that defendant was not denied his constitutional right to effective assistance of counsel when his attorney allegedly gave him erroneous advice that his guilty plea would not result in his deportation.

Defendant's answer on the plea form, which indicated that he understood that by pleading guilty he was subject to deportation, although probative, is not dispositive and cannot form the only basis for the court's rejection of his claim of ineffective assistance of counsel. As is the case with defendant's allegation of attorney misconduct, the PCR court must decide the question of defendant's immigration status from the record developed at an evidentiary hearing."

Juvenile Cannot Receive Probation Subject to Incarceration, Says NJ App Div

2010-08-11T11:19:55Z

State in the Interest of T.S., a Minor, ? N.J. Super. 93, 2010 N.J. Super. LEXIS ? (June 2, 2010) - Adjudication of delinquency affirmed, custodial portion of disposition vacated. "The Juvenile Justice Code does not authorize the Family Part to condition a term of probation upon the completion of a period of detention....

The Juvenile Justice Code does not contain the equivalent of N.J.S.A. 2C:43-2(b)(2), permitting a criminal court to sentence a defendant to a jail term not to exceed 364 days as a condition of probation.... N.J.S.A. 2A:4A-44b(1) of the Juvenile Justice Code provides for a presumption of non-incarceration for any fourth degree offense or lower. The Juvenile Justice Code does not contain a provision equivalent to N.J.S.A. 2C:43-2(b)(2).

There is nothing in this record that supports overcoming the presumption of non-incarceration in N.J.S.A. 2A:4A-44b(1) for this adjudication of delinquency based on a disorderly persons offense."