New Jersey Criminal Defense Attorney Blog

State v. Reynaldo Chavis, unpublished opinion, App.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."

State v. George Calleia, ? N.J. Super. ?, 2010 N.J. Super. LEXIS 107 (June 22, 2010) - Conviction reversed on other grounds. "At trial, defendant challenged the admission of Y-STR DNA evidence, which demonstrated that he could not be excluded as a donor of biological material recovered from under the victim's fingernails.

At oral argument before us, the State urged us to consider and affirm the trial court's decision to admit the Y- STR DNA evidence, even if we were to reverse defendant's conviction on other grounds....

Given the strong likelihood that this evidence will again emerge as a key part of the State's case against defendant, we will address the propriety of its admission by the trial court.... The sole question before us is whether Y-STR DNA analysis has reached a level of development and acceptability within the relevant scientific community that an expert's testimony concerning it can be deemed sufficiently reliable....

Based on the record developed before the trial court, we are satisfied that there is a general acceptance of Y-STR DNA analysis in the scientific community. The State's duly qualified expert in the field explained the theoretical basis of Y-STR DNA analysis, the methodology used by the testing laboratory, the SWGDAM standards that govern DNA testing, and the validation procedures associated with those standards. The State Police Laboratory uses a commercially available testing kit to conduct Y-STR DNA analyses and Y-STR DNA profiles are maintained in a national database....

[W]e also note that the State proved the reliability of the Y-STR DNA technique under the second prong of the test, which allows a proponent to establish general acceptance 'by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony....' Here, the State submitted numerous textbooks and scholarly articles concerning the development and use of Y-STR DNA analysis. These materials set forth the theory of Y-STR DNA analysis and explained the various testing techniques....

Here, Y-chromosome DNA with a specific STR profile was found under decedent's fingernails. The coincidence that this profile matches that of defendant is probative of his guilt in the same manner as if he had owned shoes that matched a foot imprint found at the crime scene. It was up to the jury to weigh the probative value of that evidence in light of the fact that a significant number of other individuals may possess the same profile."

Two former employees of a family murdered in their Freehold, NJ home were arrested last week in connection with the crime. The victims, a brother and sister who owned a local Chinese restaurant, were slain in an apparent robbery attempt in their South Street home in the borough.

The two suspects were apprehended within minutes of the first report of the crime. This occurred when a driver observed one of the victims laying in the street with his hands tied and bleeding.

A second female victim was located in a bedroom, who had been stabbed to death. Freehold police and the Monmouth County Prosecutor's Office have charged Dong Biao Lin, 24 of New York along with Zeng Liang Chen, 20 also of New York with the crimes. The are accused of armed robbery, burglary, possession of a weapon, and felony murder.

The two were located on the outskirts of the borough and arrested by Freehold Township Police. This was after a second motorist saw the two and reported their whereabouts to police. The two are now lodged in the Monmouth County Jail in Freehold. Bail has been set at $3 Million.

Last week, Noel Montes Lopez pleaded guilty to 1st-degree aggravated manslaughter before Judge Thomas Scully in Monmouth County Superior Court. The charge stems from a 2009 incident where the defendant strangled and beat his girlfriend to death after an argument in Long Branch. The victim was 33 year old Yesenia Hernandez Osorio.

Lopez also admitted to being in the country illegally and will therefore almost certainly be deported after serving his prison sentence. Prosecutors are expected to ask for a 12-year sentence. Under the No Early Release Act, Lopez will have to serve 85% of his time before he becomes eligible for parole.

Bail has been set at $3,000,000 for George Calleia, a Holmdel businessman who recently won appeal of his 2008 murder conviction. New Jersey Superior Court Judge Ira E. Kreizman also demanded that the defendant turn over his passport.

Calleia was convicted of murdering his wife, Susan, in 2005. Her remains were found in an SUV at the NJ PAC in Holmdel. Last week, the NJ Appellate Division overturned Calleia's conviction, holding that evidence admitted under the "state of mind" exception to the hearsay rule was improper. The evidence pertained to the victim's statements that she intended to leave the defendant. Calleia faces life in prison if convicted of murder at his next trial.

State v. Kelly, ? N.J. ?, 992 A.2d 776 (2010) - Conviction and Appellate Division affirmance upheld. "In this case, a jury convicted defendant Duane Kelly of committing multiple crimes, including two murders and a robbery. Based on the court's instructions, the jury could only have found that those crimes were committed with the use of a .357 or .38 caliber handgun.

The jury, however, acquitted defendant of both having unlawfully possessed that weapon and having possessed it for the purpose of committing the murders and robbery. The trial court ordered a new trial on the convictions because of a defense witness's perjured testimony.

At the second jury trial, defendant was convicted, as a principal, of the murders and robbery. Defendant claims that the second trial violated the Double Jeopardy Clause of the Fifth Amendment. He essentially argues that by finding him not guilty of possessing the murder weapon, the first jury must have concluded that he was an accomplice and not the shooter....

Defendant's retrial did not offend any principle of collateral estoppel incorporated within the constitutional guarantee against double jeopardy. A review of the jury charge and verdict sheet in the first trial indicates that the acquittals and convictions constituted an inconsistent verdict.... Because the first trial's acquittals did not determine as an ultimate fact that defendant was an accomplice rather than the shooter, it follows that the State was not foreclosed on double jeopardy grounds from proceeding on a theory that he acted alone.

Even if the verdicts were not inconsistent, we would be loath to conclude that the State should be collaterally estopped from proceeding with a new trial necessitated by perjured testimony presented by defendant, however innocently, which tainted the convictions and the acquittals in the first trial."

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

Garry Zigich, 26 of Toms River, was convicted in September of killing his fifteen-year old cousin. He appeared this week in Ocean County Superior Court for his sentencing hearing, which resulted in him receiving 50 years in New Jersey State Prison.

Zigich's conviction followed a guilty plea to one count of first-degree murder. Pursuant to a negotiated plea agreement, the Ocean County Prosecutor's Office recommended a maximum of 50 years in prison. The defendant must spend at least 42 years in prison under the No Early Release Act (NERA) before applying for parole. If he had taken the risk of going to trial, Zigich could have received a life term.

Continue reading "Toms River Man Gets 50 Years For Killing Cousin" »

A suspect wanted in Essex County for a October 17 Murder/Homicide was arrested last week at Six Flags Great Adventure in Jackson Township, Ocean County, New Jersey. The arrest was the result of a joint investigation by the Orange and Jackson Police departments.

Investigators in Essex County contacted Jackson Township police on October 30 with a report that Antoine Williams, a twenty-two year old man from Essex County, was inside the Great Adventure theme park in Jackson Township on Rt. 537 in Ocean County.

Jackson police then proceeded to the theme park and located the vehicle Williams was associated with. Police then disabled the vehicle and apprehended Williams when he returned to it. The suspect was then arrested without incident by members of the New Jersey State Police SWAT team, Orange Police, and Jackson Police Department.

It is unclear where Williams has been taken or whether he was retained a New Jersey criminal defense attorney.

A Monmouth County teen has been charged with Murder, Attempted Murder, and Possession of a Weapon for an Unlawful Purpose. A Monmouth County Superior Court Judge in Freehold has set bail at $2 million. The defendant has been lodged in the Monmouth County Jail, Freehold Township.

Police allege that last May, Thomas WIlliams, age 19, fired shots through the bedroom window of a Neptune home on Olden Avenue, killing Daryle Tyson. Tyson's mother, nearly 70 years old, was also wounded in the attack, which occurred in the early morning hours of May 25. Police also allege that the defendant shot more rounds outside the home at another man but missed.

Williams is represented by Monmouth County criminal defense attorney Robert Konzelman. The specifics of the case are still unclear but prosecutors from Monmouth County and investigators from Neptune believe that the deceased man was purposefully targeted.

Sean Robinson, 41 of Freehold, has been charged by police in Monmouth County with allegedly stabbing his child's mother in Long Branch. The woman was critically injured in the attack.

Last Friday, Long Branch police responded to a 911 call reporting that a woman had been attacked by a man wielding a knife. Police and paramedics arrived at the University Place home in Long Branch and found the woman with several knife wounds. Police later arrested the suspect on Joline Avenue and charged him with aggravated assault, attempted murder, and related weapons offenses.

Robinson is also in the hospital as a result of wounds he sustained in the attack. After his recovery, he will likely be lodged at the Monmouth County Jail in Freehold Township in lieu of $630,000 bail.

Police in Monmouth County arrested David Tyson, 20, of Neptune Township, this week and charged him with possession of a weapon for an unlawful purpose, attempted murder, and conspiracy to commit armed robbery.

The charges stem from an incident that occurred in May, where Tyson allegedly opened fire on three men also from Neptune Township. None of the victims were injured. The incident occurred on Monroe Avenue in Neptune Township, Monmouth County.

The defendant is lodged at the Monmouth County Jail, Freehold, in lieu of $650,000. It is unclear whether Tyson has retained a criminal defense attorney.

The Monmouth County criminal trial of a Millstone man charged with hiring a hit man to kill his Red Bank lawyer is set to begin this week in Freehold.

Former Millstone resident Nicholas Lucarella was arrested and charged with arranging for the attorney who handled his divorce to be murdered after losing on a child-custody issue. Monmouth County prosecutor's have accused Lucarella of paying Vancleve "Q" Ashley, a north-jersey man, to kill his former Monmouth County lawyer.

Ashely and a second man then scheduled an appointment with the Monmouth County attorney at his office in Red Bank. The pair used aliases and faked interest in hiring the Monmouth County lawyer to handle a New Jersey legal matter.

Continue reading "Freehold Criminal Trial set for Monmouth County Lawyer's Attempted Murder" »

New Jersey criminal defense attorney Paul Bergrin, of Marlboro, was sentenced this week in Manhattan for running a prostitution ring. The former federal and Essex County prosecutor still awaits trial in New Jersey on charges including bribery and murder.

Earlier this year, the top New Jersey criminal defense attorney was arrested after a grand jury returned a fourteen-count racketeering indictment against him. The most serious charge in the indictment involves Bergrin's alleged arrangement of the murder of a witness who was scheduled to testify against his client.

Prosecutors in New Jersey allege that the lawyer passed the identity of the secret witness, who was later murdered in Newark, along to hit men, working for his client. It is further alleged that Bergrin, a Monmouth County resident, bribed and threatened other witnesses from testifying against his former clients. It is unclear whether the defense attorney plans to appeal his conviction.