New Jersey Criminal Defense Attorney Blog

State v. Danny Mai, ? N.J. ?, 2010 N.J. LEXIS 393 (May 6, 2010) - Appellate Division judgment reversed, conviction reinstated. "Responding to an early morning hours radio call of a 'man with a gun,' police officers approached a double-parked van containing five occupants; the van also was surrounded by a half-dozen young men.

Based on that obvious traffic violation, the police detained the van. Fearing for his and his fellow officers' safety, one of the police officers opened the van's passenger-side sliding side door as a protective measure before actually ordering the passengers to exit the van. In so doing, van was consistent with the description of a 'man-with-a-gun' earlier broadcast over the radio. That passenger was told to step out of the van and, as he did as instructed, another police officer observed a firearm on the floor of the van where the passenger was seated.

A loaded weapon was retrieved and the passenger was arrested; a search of the passenger revealed a gun holster and a second loaded ammunition magazine fitting the retrieved weapon.... The standard for determining whether, in the context of a traffic violation, a police officer may order that a passenger alight from a vehicle previously was set forth in State v. Smith, 134 N.J. 599 (1994)[i.e., that] 'that an officer must be able to point to specific and articulable facts that would warrant heightened caution to justify ordering the occupants to step out of a vehicle detained for a traffic violation.'... In the realm of defining reasonable searches and seizures, no meaningful or relevant difference exists between the grant of authority to order an occupant of a vehicle to exit the vehicle and the authority to open the door as part of issuing that lawful order.

Plain logic demands that the principles that govern whether a passenger of a vehicle lawfully can be ordered out of the vehicle must apply with equal force to whether a police officer is entitled, as a corollary and reasonable safety measure, to open the door as part of issuing a proper order to exit.... We therefore hold that, in the aggregate, there was sufficient credible evidence presented in the suppression hearing to conclude that the 'facts in the totality of the circumstances ... create[d] in a police officer a heightened awareness of danger that ... warrant[ed] an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.' Smith, supra, 134 N.J. at 618. Those facts likewise justified the objectively reasonable belief that, as a precautionary measure, the door to the vehicle needed to be opened by the police. In those circumstances, both opening the door and ordering the passengers out of the vehicle were proper and lawful."

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."

State v. Frederick L. Hunt, unpublished opinion, App. Div. Docket No. A-1463-07T4 (March 25, 2010) - Conviction for possession of a firearm without a permit reversed. "The prosecution presented the disputed evidence [that two witnesses to defendant's taking of the gun would not give police their addresses because they 'were in fear for retaliation [because they] didn't know if the individual was involved in a gang or a drug deal...'] in response to defense cross-examination of Officer Kelly about the absence of addresses or phone numbers in his police report for the two elderly men to whom he spoke immediately before apprehending defendant....

Defendant now argues on appeal that the redirect testimony of the officer contained prejudicial hearsay that attributed criminal conduct to him, namely, it implied that defendant was involved in gang or drug dealing activity and might retaliate against the two men.... The testimony objected to was neither hearsay nor evidence of other crimes that should have been excluded under N.J.R.E. 404(b).... Nevertheless, reference to retaliation and gang or drug dealing activity should have been excluded because its probative value was substantially outweighed by the potential that it would unfairly prejudice defendant. N.J.R.E. 403....

Defendant was not accused of any criminal activity other than the alleged unlawful possession of the gun. Injecting the specter of possible retaliation and gang or drug dealing activity into the trial was highly prejudicial to defendant. At the same time, the probative value of the two men's statements was limited to collateral issues regarding the Officer Kelly's credibility and competency, but those issues were not particularly relevant to defendant's guilt or innocence.... Here, the State's need to explain the absence of addresses for the two men could have been satisfied by simply stating that the men would not give their addresses, without adding their reasons.

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

I. INTRODUCTION

August 4th, 2007, will regretfully be remembered as one of the darkest days in Newark's history. That Saturday night, at around 11:30pm, Natasha Aeriel, 19, her brother Terrance, 18, Iofemi Hightower, 20, and Dashon Harvey, 20 were gathered in a school playground in Newark's Ivy Hill section. The four young college students were listening to music and chatting together. Little did they know that it would cost three of them their lives.
As the group was enjoying the summer evening, they suddenly noticed another group of young men assembling nearby. The friends began to sense trouble, and sent text messages to each other suggesting that they leave. As they made way to depart, the group of young men confronted the four students.
Ms. Aeriel was shot in head almost immediately. The bullet left a wound near the back of her ear, but she survived. Tragically, the other three students did not. The three were marched to a concrete wall, lined up, and executed. Each was killed by a single gunshot wound to the back of the head.
Even in a city accustomed to bloodshed, the callousness and cruelty of these murders was so shocking that the case has drawn wide national attention. At least one of the defendants, Jose Carranza, 28, is an illegal alien with a criminal record, but yet had been able to remain in the United States. Pundits and politicians alike have loudly questioned how Mr. Carranza could possibly not have been deported. However, the demographic and social background of this defendant begs another question: what can we do to help prevent an individual like Mr. Carranza from obtaining a firearm?
Presumably, none of the suspects in the Newark case purchased the gun that was used in the State of New Jersey. Indeed, New Jersey has some of the strictest gun control laws in the country. ATF data released in 2001 indicated that guns used in crimes in New Jersey overwhelmingly come from out of state.
This article focuses on that trend, and what can be done to stop it. Federal help does not seem to be on the way. And while state law enforcement authorities and legislators try to formulate new strategies and tactics to prevent criminals from obtaining firearms in New Jersey, the battle needs to taken outside of the state's borders if we are going to prevent firearms from being smuggled into the state through I-95 - the so-called "Iron Pipeline."

Continue reading "Out-of-State Firearms in New Jersey" »

Police in New Jersey are obviously trained to spot signs of criminal activity during routine traffic stops. However, police do not have the right to search your car just because you have been pulled over for a motor vehicle offense.

The first step in determining whether police can search your car is whether the police had "reasonable suspicion" to stop you in the first place. Law enforcement officials may stop motor vehicles when they have a reasonable suspicion that either the vehicle or occupant is subject to seizure for violation of the law. Delaware v. Prouse, 440 U.S. 648, 6641973). New Jersey Courts have held that a police officer's observation of a motor vehicle offense is sufficient to justify a stop. State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990).

Next, it is important to keep in mind that any search made without a warrant is presumed to be illegal unless an exception to the warrant requirement can be shown by police. In the context of automobile searches, the most frequently found exceptions to police needing a warrant include: 1) Search of vehicle after arrest. This exception is no longer allowed by the courts in New Jersey; 2) The so-called "automobile exception. Under current law (see State v. Pena-Flores) this requires police to have both a) "probable cause" and b) exigent circumstances;" 3) abandonment; and 4) consent.

If police have searched your vehicle and found drugs, weapons, or other contraband and none of the exceptions to the warrant requirement exist (or are subject to challenge) an attorney skilled in pre-trial motions may be able to have the evidence tossed out after a suppression hearing. If you have been convicted of a crime after such a search, it may be possible to reverse your conviction and arrest on appeal.

In a joint-operation conducted by the Monmouth County Prosecutor's Office, the Monmouth County Sheriff's Office, the US Marshal's Service, the New Jersey Parole Board, and the Asbury Park and Neptune Police Departments, nearly 100 fugitives were arrested over the course of three days last weekend.

Many of the defendants arrested in Monmouth County are suspected of felony charges.
These include gang-related crimes, aggravated assaults, burglaries, and drug charges. Most of the arrests were made in the cities of Neptune and Asbury Park.

Police also seized various firearms as well as drugs including large amounts of heroin and marijuana. Most of the suspects are lodged at the Monmouth County Jail, Freehold Township.

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.

Lakewood, New Jersey police officer Jonathon WIlson had just gotten back to his home in Manchester when he was called to assist in arresting a suspect in Ocean County on a 'no-knock warrant." The New Jersey cop described having a bad feeling about the arrest from the moment he received the call.

For the past 6 years, Wilson was a member of a special brach of the Lakewood Police known as the "Tactical Entry Team." Wilson responded to the call and geared up for the assault on the Lakewood, New Jersey colonial style home. The first man in, Wilson was assigned with suppressing any fire from the front in order to protect the rest of the team.

After going up a flight of stairs, Wilson suddenly felt his face burning and began falling backward back down the staircase. Wilson did not know that he had just taken a bullet to the face and returned fire at the suspect. Wilson did know something was very wrong, and his thoughts immediately turned to his family. The suspect, Jaime Gonzalez of Lakewood, along with three other Lakewood officers was also shot in the exchange.

The warrant for Gonzalez's arrest was issued after investigators from the Ocean County Prosecutor's Office made arrested a high-value suspect named Javier Franco in Seaside Heights. Both men are accused of running a large-scale drug and gun trafficking network inside New Jersey and extending elsewhere. It is unclear whether any of the men have hired a criminal defense attorney.