New Jersey Criminal Defense Attorney Blog

The Appellate Division recently reversed the criminal conviction of this defendant after holding that the trial court should not have given the jury a charge on intoxication over the objection of defense counsel.

State v. R.T., ? N.J. Super. ?, 2009 N.J. Super. LEXIS 255 (December 17, 2009) - Convictions reversed, dissent by Judge Espinosa. "In this appeal we consider primarily whether defendant's right to a fair trial was prejudiced by the court charging the jury with intoxication as possibly negating an element of the crime, over defendant's objection. Finding error, we reverse and remand for a new trial....

In summation, the defense took the position that defendant did not commit the offenses and focused primarily on seeking to impugn the credibility of L.T. and his mother, including noting inconsistencies in the child's testimony and her conviction for child endangerment.

Counsel also commented generally on the problems inherent in the police interrogation that was only partially audiotaped and noted Hunsinger's suggestion to defendant that he was drunk.

An intoxication defense was not asserted explicitly or implicitly.... The facts of the present case do not clearly indicate a rational basis for the conclusion that defendant suffered from such a 'prostration of faculties' as to render him incapable of forming the requisite mental state to commit the crimes....

Not only did the facts not clearly indicate the appropriateness of the intoxication charge, but the instruction impermissibly interfered with defendant's chosen trial strategy as clearly articulated to the court during the charge conference. Our courts have expressed a general need to refrain from interfering with defense counsel's strategy." (Michael Confusione, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a1131-06.pdf

In this case, the defendant won on appeal by arguing that his attorney misinformed him of the consequences of his guilty plea re: Megan's Law tier classification.

State v. R.E., unpublished opinion, App. Div. Docket No. A-4655-07T4 (December 4, 2009) - Denial of PCR reversed, case remanded for new hearing. "The paramount issues before us are whether defendant's defense counsel not only provided defendant with constitutionally deficient advice concerning the direct or indirect Megan's Law consequences that he faced if convicted pursuant to the plea bargain, but also whether he suffered prejudice even if he was misinformed.

It is the second prong of this framework that suffers from an unfinished analysis, and which impels our order of remand.... The issue here is not that defendant failed to understand that he was subject to Megan's Law. Rather, it is defendant's stance that he was misinformed as to the extent of his exposure to a tier reclassification by pleading guilty, which was unfortunately compounded by the court's statement at sentencing that

'I don't think you're subject to Megan's Law anyhow, so that's not a concern right now.' This statement, albeit accurate insofar as the immediate criminal sexual contact charge was concerned, would lead a person in defendant's circumstances to reasonably believe that the new conviction would have no impact whatsoever on his extant Megan's Law status.

The absence of any comment by defendant's defense counsel, either to clarify the sentencing judge's statement on the record or to consult privately with defendant and advise him otherwise, reinforced the potential for misapprehension.... Given the significance to all concerned -- the defendant, the State, and the community -- of tier classifications, we cannot confidently say that defendant did or did not receive the effective assistance of counsel when he acceded to the plea agreement and fulfilled his part of the plea bargain.

That the effect of that event was not felt until several months later, when defendant's tier classification was reviewed and increased, does not detract from our uneasiness with the truncated process that defendant received in January and February 2006. All we direct is that the PCR judge conduct a limited further hearing, with or without testimony in his discretion, to explore whether, in light of Slater and what we have determined regarding the performance of defendant's former counsel, defendant should be entitled to withdraw his guilty plea." (Richard Sparaco, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a4655-07.pdf

This recent NJ criminal defendant was allowed to withdraw his guilty plea after the Appellate Division found that there was an insufficient factual basis for his plea.

State v. Lawrence Speed, unpublished opinion, App. Div. Docket No. A-5912-07T4 (December 15, 2009) - Conviction reversed, case remanded. "Speed's response to the question 'what if anything did you do that makes you guilty of endangering the welfare of a child' was not sufficient to satisfy the requirement that he admit to knowledge, at the time of the offense, that his conduct would 'tend to impair or debauch' the victim's morals. He admitted to sexual intercourse, but not to knowing that the conduct would tend to impair the victim's morals at the time of the offense. Consequently, there was an inadequate factual basis for the plea." (Ingrid A. Enriquez, Designated Counsel)
http://www.judiciary.state.nj.us/opinions/a5912-07.pdf

In this case, the defendant's criminal defense attorney allegedly failed to inform the defendant, who was underage at the time he committed a sex offense, that he would not be able to be removed from the Megan's Law registry upon his 18th birthday. The defendant successfully argued on appeal that this materially influenced his decision to plead guilty.

State in the Matter of Registrant B.A., unpublished opinion, App. Div. Docket Nos. A-0109-08T1 and A-1997-08T1 (December 16, 2009) - Order denying motion to be relieved of Megan's Law registration requirements affirmed, order denying motion to withdraw guilty plea reversed, case remanded for evidentiary hearing.

"The court, the defense attorney, and by silence, the assistant prosecutor, were unaware of the fact that B.A. was not eligible to apply for relief from Megan's Law registration requirements when he turned eighteen unless he was under fourteen years of age at the time of the commission of the offense.

B.A. asserts that he relied upon this mistaken impression of what was required under Megan's Law in seeking to withdraw his guilty plea, arguing that it materially influenced him to enter a guilty plea.... B.A. contends that he entered his guilty plea believing that he would be eligible to apply for relief from Megan's Law registration requirements when he became eighteen years old.

This belief was fortified by the colloquy between the trial court and his then-counsel. The State made no objection or comment. As a consequence, he reasonably anticipated that he could petition for relief when he turned eighteen.... [T]he trial court did not even consider the mistaken impression conveyed to B.A. at the time he entered his plea.... On remand, the trial court will have to hold a hearing to explore the issue of the materiality of this misimpression to determine whether a plea withdrawal is appropriate. (Jane M. Personette)
http://www.judiciary.state.nj.us/opinions/a0109-08a1997-08.pdf

This criminal defendant recently won on appeal, by successfully arguing that the trial court erred by improperly admitting evidence pertaining to the defendant's sexual proclivity. By doing so, the defendant avoided a lengthy prison term and registration under Megan's Law.

State v. Kiwanie Salter, unpublished opinion, App. Div. Docket No. A-0502-08T4 (December 24, 2009) - Convictions reversed. "Defendant contends the trial court erred by admitting evidence of 'other acts' evidence that (1) defendant engaged in consensual anal intercourse with C.B., (2) defendant whispered during consensual sex with C.B., (3) defendant kissed his daughter on the mouth, and (4) defendant previously was in possession of a gun.

Defendant also contends that the State produced none of this evidence in discovery, nor did the State provide any advance warning that this evidence would be presented at trial. We agree that prejudicial evidence regarding defendant's preference for anal sex, kissing his daughter on the mouth, and possession of a gun was presented to the jury without meeting the requirements of N.J.R.E. 401, 403, and 404(b)....

First, C.B.'s testimony about defendant's preference for anal intercourse with her was not relevant and should have been excluded.... Defendant's state of mind was not a disputed issue at trial. The defense never suggested that defendant was not guilty because he did not have the requisite criminal intent to engage in anal intercourse with T.B.

The defense argued that the incidents never happened, that T.B.'s testimony was a complete fabrication. We also reject the prosecutor's suggestion that C.B.'s testimony was relevant to prove defendant's motive for the sexual assaults of T.B. We see no 'tendency in reason,' ... between a man's sexual preferences with his adult girlfriend and motivation to engage in sexual activity with a child when the adult relationship has ended....

The prosecutor's proffer on relevance by its own terms established that the testimony was inadmissible under N.J.R.E. 404(b). In effect, the prosecutor said that she sought to offer C.B.'s testimony to prove defendant's disposition to act with T.B. in conformity with his preference for anal sex with C.B. Evidence rule 404(b) expressly prohibits admission of 'evidence of other ... acts ... to prove the disposition of a person in order to show that such person acted in conformity therewith.' N.J.R.E. 404(b)....

Also significant in gauging prejudice to defendant under N.J.R.E. 403 and 404(b) is the trial court's failure to give any limiting instruction with respect to C.B.'s testimony about anal sex." (Rubin M. Sinins)
http://www.judiciary.state.nj.us/opinions/a0502-08.pdf

The ex post facto clauses of the United States and New Jersey Constitutions have been cited in attempts to strike down New Jersey's civil commitment laws. Under both the State and Federal Constitution, the Ex Post Facto Clause cannot be violated without the imposition of punishment. Doe v. Poritz, 142 N.J. 1, 42 (1995); Kansas v. Hendricks, 521 U.S. 346, 361117 S. Ct. 2072, 2082, 138 L. Ed. 2d 501, 515 (1997). As the SVPA is a civil statute providing for treatment of the sexually dangerous, it does not impose punishment. State v. Bellamy, 178 N.J. 127, 138 (2003). This argument is therefore without merit.

Sex offenders civilly committed in New Jersey have a high standard to meet on appeal. It is well settled that the scope of appellate review of such matters is extremely narrow. In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), cert. denied, 177 N.J. 490 (2003). The reviewing court on appeal must give 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." In re Commitment of J.M.B., 395 N.J. Super. 69, 90 (App. Div) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)), cert. granted, 193 N.J. 222 (2007). The reviewing judge's determination in that regard is "subject to modification only where the record reveals 'a clear abuse of discretion.'" In re Commitment of M.L.V., 388 N.J. Super. 454, 465 (App. Div. 2006) (quoting J.P., supra, 339 N.J. Super. at 459), cert. denied, 190 N.J. 255 (2007).

Persons who are deemed to be sexually violent predators may be civilly committed under the Sexually Violent Predators Act (SVPA). N.J.S.A. 30:4-27.24 to -27.38. This basically allows the State to keep a sex offender confined indefinitely, even after they have served their sentence.

The State must establish by clear and convincing evidence that the person has behaved in a sexually violent manner in the past and is highly likely to reoffend in the future as a result of a mental abnormality or personality disorder that affects the individual's emotional, cognitive or volitional capacity. In re Commitment of W.Z., 173 N.J. 109, 120 (2002); N.J.S.A. 30:4-27.26.

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

Joseph Ambrosio, 41 of Wall Twp, Monmouth County was arrested this week for allegedly sending sexually graphic emails to undercover investigators acting as underage girls. The emails were allegedly sent from his work computer in Jersey City, where he worked as an assistant controller.

Ambrosio has been charged with attempted sexual assault, attempted criminal sexual contact, and child endangerment. Ambrosio's arrest resulted from the work of a joint-investigation conducted by the Monmouth, Passaic and Morris County Prosecutor's Offices and the Passaic County Sheriff's Department.

Prosecutors say the emails and chats started early this year when undercover detectives posed as 12-year-old girls in Yahoo chat rooms. Ambrosio allegedly used the screen name NNNJGUY1971. He would enter the chat rooms in the afternoon, when young girls are likely to be online. The defendant was even allegedly seen by an undercover agent in his office sending such emails.

Continue reading "Wall Township Man Charged in Internet Sex Sting" »

Thomas Anderson, a 42 year-old man from Freehold, was charged this week with endangering the welfare of a child and sexual assault. The crimes allegedly took place approximately 14 years ago in Ocean County. Anderson is lodged in the Ocean County Jail. His bail is set at $250,000. It is not clear if he has retained a criminal defense attorney.

Police in Monmouth County, New Jersey have arrested a 21 year old Middletown man who allegedly bragged online about being a pedophile.

Gary Wolchesky has been charged with endangering the welfare of a child - a third-degree crime punishable by 3-5 years in prison. He is being lodged at the Monmouth County Jail in Freehold in lieu of $100,000 bail.

Monmouth County prosecutors say they became interested in Wolchesky after viewing a YouTube clip of him discussing child pornography. Police and investigators then searched the Middletown man's home, resulting in the discovery of images on the defendant's computer that depicted children clearly less than sixteen performing sexual acts.

If you have been charged with any kind of sexual offense in New Jersey, you must be proactive and seek competent legal representation as soon as possible. The penalties for any sex offense in New Jersey are severe, and include listing on the Megan's Law database.