New Jersey Criminal Defense Attorney Blog

DYFS v. R.M./In the Matter of I.L., C.L., and I.T., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 19 (February 5, 2010) - "Defendant R.M. appeals the order of the Family Part denying her application for the entry of a 'suspended judgment' as the disposition of the complaint filed by plaintiff New Jersey Division of Youth and Family Services (Division) charging her with child neglect as defined by N.J.S.A. 9:6-8.21.

This appeal requires us to determine (1) the criteria for application of the 'suspended judgment' provision of N.J.S.A. 9:6-8.51(a)(1); and (2) whether successful completion of a period of suspended judgment necessarily leads to the removal of the underlying finding of abuse or neglect from the central registry maintained by the Division pursuant to N.J.S.A. 9:6-8.11....

In summary, we conclude that the suspended judgment provision of N.J.S.A. 9:6-8.51(a)(1) is generally applicable when a Family Part judge has held a dispositional hearing and is not prepared to enter an order returning the child to the parent or placing the child with the Division, but instead proposes to give the parent an opportunity to maintain the family unit based upon adherence to the particular remedial requirements established pursuant to N.J.S.A. 9:6-8.52(a).

We also conclude that successful completion of a period of suspended judgment does not result in expungement of the underlying finding of abuse or neglect. [W]e find no basis to conclude that the Legislature intended the suspended judgment provision of N.J.S.A. 9:6-8.51(a)(1) to provide the equivalent of PTI in abuse and neglect cases.... Finally, we affirm the order on appeal, based upon our conclusion that a suspended judgment was not a viable option at the time the order was entered and that, in any event, the Family Part judge did not abuse his discretion...." (Carol Willner, Designated Counsel,for R.M.; Amy Vasquez, Designated Counsel, Law Guardian)
http://www.judiciary.state.nj.us/opinions/a2081-08.pdf

DYFS v. L.L./In the Matter of T.L., ? N.J. ?, 2010 N.J. LEXIS 149 (February 24, 2010) - Denial of motion to vacate kinship legal guardianship affirmed. "We hold that pursuant to N.J.S.A. 3B:12A-6(f), prior to the vacation of a kinship legal guardianship judgment, the court must find by clear and convincing evidence both that the parent has overcome the incapacity or inability to care for the child that led to the original guardianship proceedings, and that termination of kinship legal guardianship is in the best interest of the child. We additionally hold that the party seeking to terminate the kinship legal guardianship has the burden to prove by clear and convincing evidence each of those two criteria." (T. Gary Mitchell, D.P.D., for L.L.; Melissa R. Vance, A.D.P.D., Law Guardian)
http://www.judiciary.state.nj.us/opinions/supreme/A6808DYFSvLL.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

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 following DFYS appeal was recently decided by the Appellate Division, finding that a defendant's failure to appear at a factfinding hearing does not warrant a default to be entered when the defendant's attorney appeared on her behalf and the defendant did not violate any court order. Summary by Mark Friedman.

DYFS v. P.W.R., L.C., AND C.R., Jr./Matter of A.R., ? N.J. Super. ?, 2009 N.J. Super. LEXIS 241 (November 19, 2009) - "The judge in this Title 9 action defaulted a defendant because she did not attend the factfinding hearing even though her attorney appeared to represent her interests.

We conclude that, unless warranted by defendant's failure to comply with a prior order and the potential for default was adequately noticed, a judge is not authorized to enter a default in this circumstance. However, because the default had no meaningful impact, we affirm.... A default based upon the failure to comply with an order requires as a predicate that the defendant received adequate notice that default may follow a failure to comply....

As we have explained, the prior order did not indicate that defendant would be defaulted if she failed to appear for the factfinding hearing. Moreover, even if it were possible to parse the language of the prior order in a way that would suggest otherwise, a court should not enter default when fundamental fairness counsels against it....

In urging that we uphold the judge's decision to enter default in this case, the Division relies upon N.J.S.A. 9:6-8.42, which declares that '[i]f the parent or guardian is not present, the court may proceed to hear a complaint under this act only if the child is represented by a law guardian.' Proceeding in a party's absence is not the same as entering default....

As the judge declared in entering default here, defendant was precluded from putting on 'an affirmative case.' What the judge meant by this was not defined, but the common understanding attributable to this phrase would suggest that the default barred defendant from calling witnesses or offering other evidence. Such a ruling was not authorized or remotely suggested by N.J.S.A. 9:6-8.42." (Mary Potter, Designated Counsel; Melissa R. Vance, A.D.P.D., Law Guardian)
http://www.judiciary.state.nj.us/opinions/a1060-08.pdf

The following appeal was recently decided pertaining to DYFS cases and finding that corporal punishment, under the facts, did not constitute abuse or neglect. Summary by Mark Friedman.

DYFS v. E.G.P. and C.P., unpublished opinion, App. Div. Docket No. A-1238-08T2 (November 6, 2009) - Order finding substantiated abuse and placing E.G.P.'s name in the child abuse registry reversed.

"In departing from the ALJ's finding of no excessive corporal punishment, the Director specifically noted the eye injury to C.J. and the apparent force used to paddle both girls, evidenced by the fact that the paddle broke during the paddling. A finding of excessive corporal punishment inflicted upon C.J. and Z.J. does not, however, complete the definition of abuse or neglect under N.J.S.A. 9:6.8-21.

Rather, 'as a part of its burden of proof, [in abuse and neglect cases] the State must still demonstrate by a preponderance of the competent, material and relevant evidence ... the probability of present or future harm.' N.J. Div. of Youth and Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004). This burden is met with proof that C.J. and Z.J. suffered physical, mental or emotional impairment or the risk thereof as a result of E.G.P.'s actions. N.J.S.A. 9:6.8-21(c)(4)(b).

The ALJ expressly found no such impairment or risk of impairment, determining that the incident was 'isolated,' the injuries were not serious, and there was no impairment or 'imminent danger of becoming impaired.' The Director did not reject these factual findings and in fact agreed that the actual harm to the teenagers was not 'critically severe.'

While we discern no basis to disturb the Director's finding that E.G.P.'s action constituted excessive corporal punishment, the absence of proof of the 'probability of present or future harm' to C.J. and Z.J., who were adults by the time of the hearing, renders the Division's proofs lacking as to an essential element in the definition of abuse or neglect.... As such, we are constrained to reverse." (Drew A. Molotsky)
http://www.judiciary.state.nj.us/opinions/a1238-08.pdf

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" »

Lawyers handling the appeal of a man fatally shot in Camden County, New Jersey have filed papers in federal court appealing the dismissal of a wrongful death action filed by the deceased man's estate.

Eric Quick, a 31-year old Burlington County resident, allegedly led police on a chase through Camden County in the summer of 2003. The chase ended with Quick abandoning the stolen vehicle he was driving on I-295 in Bellmawr. Quick ran into the nearby woods, allegedly holding a glass crack pipe in one hand. Believing the pipe was a weapon, police opened fire on Quick. 39 shots were fired at Quick, 18 of which hit their mark.

In February, a federal district court judge threw out a civil suit against the officers. The suit alleged that Quick posed no threat to the officers, who used excessive force by opening fire on the unarmed man. New Jersey appeal lawyer Andrew Smith argues in his third circuit appeal that the district court judge ignored testimony by his expert and by the state's medical examiner.

Continue reading "Appeal Filed in New Jersey Fatal Police Shooting" »

If you have been convicted of a crime or have lost in a civil suit in New Jersey, you typically have 45 days to appeal to the Superior Court - Appellate Division. This will initiate your appeal and begin the months to year long appellate process. However, there are some situations where this long wait simply will not do. In these cases, you should consider filing an emergency appeal with New Jersey's appeals court.

The first thing you should know is that you do not have the right to actually "file" an emergent appeal. Rather, you must first apply for permission to file for emergent relief. The process is tricky, and you should certainly consider consulting with an attorney who has experience handling New Jersey criminal and civil appeals.

There are several prerequisites to filing an emergent appeal. The most obvious is that you need to be actually appealing the decision of a trial judge or administrative agency. Make sure that you have received a signed written order from that judge or agency. It is this order that you will technically be "appealing".

You must notify you adversary of your intention to file an emergent appeal. This can be done by filing a notice of appeal with your adversary, the trial court, and the appellate division judge to whom you will be appealing. Next, you should file a notice of motion for the emergent relief you are seeking. Note that this step is unnecessary if the only relief you are seeking is leave to appeal. A supporting brief is not necessary at this point but it would be prudent to begin preparing one at this time in case your application to file for emergent relief is granted. Finally, you must downloading and prepare the New Jersey Appellate Division's standard form for applying for emergent relief.

Continue reading "Emergent Criminal and Civil Appeals to the New Jersey Superior Court" »

If you have been convicted of a crime in New Jersey, or if you have lost in a civil court, you have the right to appeal. However, the New Jersey appeal process can be confusing and highly time sensitive. You should immediately consult with an experienced appellate attorney if you are considering an appeal in New Jersey.

If you have been convicted of a traffic violation in a New Jersey Municipal Court, you have only 20 days to file your notice of appeal with the Superior Court, Law Division, in the county in which your municipal conviction occurred. If you have been convicted of a crime or have lost a civil proceeding in the Superior Court, Law Division, you may appeal to the Superior Court, Appellate Division. In this case, you must file your notice of appeal within 45 days from the day of the entry of final judgment in your case.

The first step in initiating your appeal is to file your notice of appeal with the clerk's office in Trenton. You must also order the transcripts from your trial and serve them upon your adversary and the court. Finally, you must prepare your "appellate brief" which lays out the reasons you feel your conviction or judgment should be reversed. This is not meant to be a complete guide but simply an overview. There are other important steps. An experienced appellate attorney can take care of the entire process and give you the best chance for success on appeal.

Probably the biggest misconception of an appeal is that is a new trial. It is not. Rather, an appeal is a proceeding in which you cite errors that the trial court may have made in your case. If these errors are deemed serious enough by the appellate court, the court may reverse your conviction or judgment and remand your case for a new trial or hearing.

Continue reading "New Jersey Appeal Process Overview" »