New Jersey Criminal Defense Attorney Blog

State v. Franklin Kincey, unpublished opinion, App. Div. Docket No. A-3205-09T3 (July 9, 2010) - Order excluding statements made by defendant intercepted in wiretaps as unduly prejudicial under N.J.R.E. 403 affirmed.

Continue reading "Wiretapped Statements Excluded from NJ Criminal Trial" »

The following criminal case was recently decided on appeal pertaining to the State's failure to produce an expert witness from a GPS manufacturer. The State sought to introduce evidence from the defendant's GPS despite the absence of expert testimony. Summary by Mark Friedman.

State v. Eric Pittman, unpublished opinion, App. Div. Docket No. A-2569-08T4 (November 4, 2009) - Order denying admission of evidence from Global Positioning System (GPS), State's motion for reconsideration, and State's motion to reopen affirmed.

"Specifically, the State sought to introduce evidence of the location of defendant's Yukon motor vehicle, on which a GPS unit had been installed pursuant to court order, to show that the Yukon traveled to the vicinity of an apartment in Edison where guns, drugs, and drug paraphernalia were later seized pursuant to a search warrant.

No independent surveillance corroborated defendant's location and travel on the day in question.... [T]he State [argued] that an expert from Orion was not necessary for admission of the GPS evidence, because the device's technology has been generally accepted as scientifically reliable.... [The trial court concluded] that while it was satisfied the GPS system was an appropriate technology in general, 'the question came down to this particular system, the Orion system ... that was installed by the county prosecutor's office in the defendant's vehicle.

Whether or not this system was an appropriate method of calculating one's position in the world.'... Here, the trial judge decided that expert testimony, beyond that of McDonald, who attested only to the acceptance of GPS technology in general, was essential to determining the accuracy and trustworthiness, and therefore admissibility, of the particular GPS device used in this case.

We agree.... The State's belated effort to reopen the N.J.R.E. 104 hearing nine months after commencement of the proceeding and seventeen months after the issue was raised is simply too little, too late. The State declined many requests and opportunities to present the expert proof deemed necessary by the court to close the gaps identified in McDonald's and Palfy's testimonies. Moreover, when the State finally relented after the close of evidence and resolution of the issue, it failed to make an offer of proof to assure the court that its expressed concerns would be satisfied by the proposed testimony." (Joshua D. Altman; Steven D. Altman, on the brief).

http://www.judiciary.state.nj.us/opinions/a2569-08.pdf

The following criminal appeal was recently decided by the New Jersey Superior Court - Appellate Division. Summary by Mark Friedman.

State v. Franklin Kincey, Felisha Spencer, and Beverly Oliphant, unpublished opinion, App. Div. Docket No. A-0058-09T4 (November 4, 2009) - Order denying admission on State's case of evidence obtained through a judicially-authorized wiretap remanded for further consideration on the record as presented on appeal.

"As the State has recognized, as a general rule, a trial court's determination whether to admit evidence will be reversed only if it constitutes an abuse of discretion.... However, to apply that standard in the present case is difficult, because the State's reasons for admission of the proffered evidence have been crystallized on appeal, and the identity of the wiretaps that the State considers evidential has been refined. We disapprove of the procedures thus employed by the State. Nonetheless, we regard the evidentiary issues presented on appeal to be of substantial significance to both the State and the defendant. As a consequence, we decline to determine this matter on the basis of the trial court record as it presently exists, finding it preferable to remand the issue of the admissibility of the eleven conversations upon which the State now focuses to Judge Callahan for his further review in light of the arguments raised on both the State's and Kincey's behalf on appeal. We express no opinion with respect to the proper resolution of the issues raised." See also JOINDER AND SEVERANCE. (Eric V. Kleiner for Kincey; Nathan Kittner for Spencer)
http://www.judiciary.state.nj.us/opinions/a0058-09.pdf

One of the most powerful tools police and prosecutors in New Jersey have at their disposal in enforcing the State's criminal laws is access to phone and wire taps and interceptions.

New Jersey's Wiretap and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-10, provides, in pertinent part, that upon consideration of an application, a judge may enter an ex parte order authorizing the interception of a wire, electronic or oral communication, if the court determines on the basis of the facts submitted by the applicant that there is or was probable cause for belief that:

a. The person whose communication is to be intercepted is engaging or was engaged over a period of time as a part of a continuing criminal activity or is committing, has or had committed or is about to commit an offense....
b. Particular communications concerning such offense may be obtained through such interception; [and]
c. Normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ....

Continue reading "NJ Phone Tap and Wire Interception Law Overview" »