New Jersey Criminal Defense Attorney Blog

In this recent case decided on appeal, the defendant claimed his attorney was ineffective at his criminal trial because the attorney did not raise the issue of voluntary intoxication as a defense to defendant's shooting and weapons charges. Summary by Mark Friedman.

State v. Victor McCargo, unpublished opinion, App. Div. Docket No. A-5691-06T4 (November 16, 2009) - Denial of PCR reversed, remanded for evidentiary hearing. "One of the issues defendant raised in his petition was his allegation that his trial counsel had been ineffective for failing to raise his intoxicated state at the time of the shooting as a defense.

He included with his petition certifications from his brother Dante McCargo and his friend Arnold Lyles, as well as his own certification, detailing the amount of alcohol he had consumed.... In [his] certification, [defense counsel] stated that he left it to his co-counsel to discuss the question of intoxication with defendant since co-counsel was to conduct defendant's direct examination....

If an allegation of ineffective assistance of counsel is to fail because of a strategic choice made by counsel, there should be a showing that, indeed, counsel considered the issue and selected one avenue of defense over another. There would be many sound reasons for trial counsel to have elected not to pursue an intoxication defense in this matter, but we are unable to conclude from this record that such an election was in fact made....

Because there is no record on this question, we are unable to conclude whether it is entirely devoid of merit or whether defendant is entitled to further relief. We thus reverse the order denying post-conviction relief and remand the matter for further proceedings." (Patricia Drozd, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a5691-06.pdf

NJ criminal defense attorneys need to be especially attentive to clients that are facing deportation. In this recent case decided on appeal, the Appellate Division reversed the Post Conviction Relief (PCR) denial of a woman who claims her attorney failed to advise her that her guilty plea could result in her deportation. Summary by Mark Friedman.

State v. Sarah Creque, unpublished opinion, App. Div. Docket No. A-0350-08T4 (November 12, 2009) - Denial of PCR reversed, case remanded for evidentiary hearing. "The Law Division determined that defendant could not possibly prove her allegations of ineffective assistance of counsel because she was deported and could not return to testify.

Her deportation was allegedly a result of being convicted of the crime from which she sought relief.... We conclude that defendant's written submissions established a prima facie case warranting an evidentiary hearing...

The PCR court must assume contested facts most favorably to defendant and determine whether those facts would entitle defendant to relief from the conviction if they are true.... In this case, defendant Creque certified that her prior attorney told her the guilty plea would not affect her immigration and residency status.

To establish the second part of the Strickland test, she also certified that she would not have pleaded guilty if she knew she might be deported. If true, those facts establish a prima facie case of ineffective assistance of counsel.... The court's legal error was in viewing the preliminary ruling of whether defendant had established a right to an evidentiary hearing as a conditional ruling.

Because defendant showed a prima facie case of ineffective assistance, she is entitled to an evidentiary hearing, and the court should have so ruled and scheduled a hearing. At that hearing, defense counsel will have the burden of presenting sufficient evidence, with or without defendant, to prove her entitlement to relief.... Nothing in our court rules requires that defendant be present for a PCR hearing." (Adam W. Toraya, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a0350-08.pdf

This recent appeal was decided pertaining to a Post-Conviction Relief (PCR) denial of a juvenile defendant whose mother was prevented from being present while her son was interrogated by police, during which he confessed to murder.

State v. Lawrence Bell, unpublished opinion, App. Div. Docket No. A-4895-05T4 (November 17, 2009) - Denial of PCR affirmed in part, reversed in part, remanded for evidentiary hearing.

"Defendant's second petition for PCR was based on the
absence of defendant's mother or stepmother from the interrogation following his arrest during which he admitted his participation in the kidnapping, sexual assault and murder of a young mother. Defendant argues that his mother's attendance was required and that she was barred from the interrogation room. He contends he was entitled to an evidentiary hearing to determine the credibility of his stepmother's recently submitted statement and her recollection of the events and their relevance to the voluntariness of his oral and written statements.

He further argues that his attorney was ineffective because he did not raise the issue of the stepmother's absence from the interrogation and the voluntariness of defendant's statements.... In this letter, defendant's stepmother relates that she brought defendant to the police station, they entered a room and a detective handcuffed defendant. In her letter, she states she left the room to use the bathroom.

When she returned, defendant was in an interview room being questioned. A detective would not let her enter the room. When she protested, she was shown a note from defendant that stated that he did not want her to be with him. When she insisted that she wanted to see defendant, a detective opened the door. She described his skin as 'a fire red in color' and that he looked scared. Deborah Carter Tobin did not testify at the April 1992 Miranda hearing....

The presence or absence of a parent or guardian is one of several factors that must be considered in the assessment of the voluntary nature of an inculpatory statement by a juvenile. Although defendant's interrogation could proceed in the absence of his stepmother, police were required to conduct the interrogation 'with utmost fairness and in accordance with the highest standards of due process and fundamental fairness.'...

If defendant's stepmother was excluded by detectives and defendant was not informed that she was nearby, these circumstances might suggest that the interrogation was not conducted with care and that the juvenile's will was overborne.... [T]he record of the facts and circumstances surrounding defendant's stepmother's absence is now disputed. The contradictions created by the stepmother's letter cannot be resolved by simply comparing the facts related in her letter and the transcript of the April 1992 Miranda hearing." (David A. Gies, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a4895-05.pdf

It is generally bad form to play Monday morning quarterback after another criminal defense attorney. However, this recent case decided on appeal is a real head-scratcher. In this case, the defense attorney insisted that a detective, from the same prosecutor's office that was prosecuting his client, remain on the client's jury. This was despite the detective-juror having known personally the State's key witness in the case - his fellow officer.

State v. Fuquan Morgan, unpublished opinion, App. Div. Docket No. A-0858-07T4 (November 2, 2009) - Denial of PCR reversed, case remanded for evidentiary hearing.

"In this appeal, we examine whether defendant was deprived of the effective assistance of counsel when his attorney insisted that a detective employed by the prosecutor's office remain in the jury venire. The detective eventually served on the jury, which convicted defendant. Because the record does not suggest a reasonable tactical basis for defense counsel's unorthodox position, we vacate the order denying post-conviction relief and remand for an evidentiary hearing....

The detective was employed by the office that was prosecuting this defendant and the detective knew the arresting officer, whose credibility was a key issue. The judge, as he indicated ... would undoubtedly have sustained any defense objection to the detective being in the venire. Although the record on appeal is not complete, a defense objection or application at any stage during jury selection would have undoubtedly required the detective's exclusion from the jury....

However, the limited record on appeal, as we have indicated, reveals that defense counsel was insistent on the detective remaining in the venire and was quite willing to allow the detective to take a seat on the jury and deliberate on defendant's guilt....

In the only clear statement in the record on appeal as to defense counsel's tactic regarding the detective, which was quoted earlier, she only indicated that she 'couldn't make that determination now' but insisted that he remain in the venire.

Thus, there is nothing in the record on appeal that would reveal whether defense counsel had made a sound strategic decision in insisting that the detective remain in the venire and in allowing him to ultimately sit on the jury." (Philip Lago, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a0858-07.pdf