New Jersey Criminal Defense Attorney Blog

NJ Juvenile's Confession Deemed Involuntary

Fri, 03 Sep 2010 13:40:11 -0500

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.

US Softens on Deportation Criteria for Illegal Aliens

Thu, 02 Sep 2010 09:05:34 -0500

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

Wed, 01 Sep 2010 07:50:10 -0500

State v. L.H., unpublished opinion, App.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

Tue, 31 Aug 2010 08:07:37 -0500

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.

Jersey Police Officer's Search Exceeded Scope of Investigatory Stop

Mon, 30 Aug 2010 08:44:52 -0500

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

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

Fri, 27 Aug 2010 11:04:48 -0500

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

NJ Criminal Conviction Reversed For Prosecutorial Misconduct

Tue, 24 Aug 2010 14:29:08 -0500

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.

Monmouth County PTI Policy Called "Confusing" by Appellate Panel

Fri, 20 Aug 2010 09:31:57 -0500

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

NJ Prosecutor May Not Condition PTI Admittance on Guilty Plea

Thu, 19 Aug 2010 07:40:31 -0500

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....

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

Tue, 17 Aug 2010 07:26:40 -0500

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

Mon, 16 Aug 2010 14:02:37 -0500

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

Fri, 13 Aug 2010 08:11:30 -0500

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

Fri, 13 Aug 2010 07:39:10 -0500

NJ Criminal Defendant Claims Attorney Failed to Advise of Deportation

Thu, 12 Aug 2010 08:29:35 -0500

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

Wed, 11 Aug 2010 07:19:55 -0500

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."