Friday, July 20, 2018

One and One Make Two in DUI

James Dougherty was charged with violating N.J.S.A. 2C:40-26(b) for driving while suspended for a second or subsequent conviction or plea to driving while intoxicated (N.J.S.A. 39:4-50) or refusal to submit to chemical breath testing (N.J.S.A. 39:4-50.4(a)). Dougherty, seeking to avoid mandatory jail time, took the position that 2C:40-26(b) required conviction for two charges of refusing to submit to chemical breath testing or convictions for two charges of driving under the influence while Dougherty had only one conviction of each. In August 2015, the Defendant was convicted of DWI for a charge stemming from a February 23, 2009 arrest and was convicted of a refusal in November 2015, for a charge stemming from and arrest on February 4, 2009. While serving the seven month sentence for the refusal charge, the Defendant was stopped by the police while operating a motor vehicle. Dougherty was sentenced to a mandatory term of 180 days in jail, which term was stayed pending appeal. Defendant, relying on State v. Ciancaglini, 204 N.J. 597 (2011), argued that a "second or subsequent violation" under N.J.S.A. 2C:40-26(b) requires two convictions of the same predicate offense, rather than one of each. The Appellate Division found that State v. Ciancaglini does not address the issue head on. However, State v. Frye, 217 N.J. 566 (2014), reaffirms In re Bergwall, 85 N.J. 382 (1981), holding that a prior DUI does enhance a sentence for a refusal conviction. Additionally, the legislative history of the DUI statutes is centered upon the premise of discouraging driving under the influence by including ever increasing penalties for successive offenses. The Defendant's basic premise, from State v. Olivero, 221 N.J. 632, 639 (2015) and In re Estate of Fisher, 443 N.J. Super. 180, 190-195 (App. Div. 2015), that the word "or" should be interpreted as "or" rather than "either/or" is incorrect. When considered in the framework of the history and evolution of DWI laws, becoming ever stricter, there is no question as to the interpretation of the statute to include the word "either". The Appellate Division affirmed the defendant's conviction. If you are facing charges of DUI, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DWI, refusal to submit to chemical breath testing, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Friday, March 3, 2017

Juvenile's Waiver of Miranda Rights Upheld

D.N., was a 16 year old juvenile when charged with offenses that, if committed by an adult would include second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)); possession of under 50 grams of marijuana (N.J.S.A. 2C:35-10(a)(4)); defiant trespass (N.J.S.A. 2C:18-3(b)) and obstructing the administration of law (N.J.S.A. 2C:29-1(a)). Police responded to a caller saying that D.N. entered a grocery store after being notified he was not permitted to do so and, during a search, located and seized suspected marijuana from D.N.’s person. In the presence of his mother, at the police station, D.N. was read his Miranda rights and invoked his right to remain silent. Weeks later, D.N.’s mother contacted police and advised them that she had found a handgun in a backpack in her residence and, upon their arrival, consented to a search of the backpack. D.N. was taken for questioning upon returning home. The “Juvenile Miranda Warning” form was used to advise D.N. and his mother of D.N.’s rights under Miranda and D.N. and D.N. agreed to speak to the police. D.N. ultimately confessed to that he had made a deal with a gang member wherein he would be paid to deliver the gun to a third party. D.N. moved to suppress the confession and the judge held that D.N. knowingly and voluntarily waived his rights as he had exercised those rights only weeks earlier. In State of New Jersey in the interest of D.N., D.N. pled guilty to second-degree unlawful possession of a handgun, possession of under 50 grams of marijuana, defiant trespass, and obstructing the administration of law and, pursuant to a plea agreement, the State dismissed the weapons charges. D.N. was sentenced to 2 years probation, community service, drug evaluation and participation in a residential treatment program among other conditions. D.N. appealed the denial of his suppression motion. The New Jersey Appellate Division held that the “suspect’s will was not overborne by police conduct” as is the test under State v. Presha, 163 N.J. 304, 313 (2000). Pursuant to State in the Interest of A.S., 203 N.J. 131, 147 (2010), the presence of D.N.’s mother was given considerable weight in favor of voluntariness of the confession as well. In light of prior opinions and the fact that D.N. had knowingly invoked his right to remain silent only weeks prior, the Appellate Division affirmed the decision of the trial judge. If a juvenile is charged with a crime, the disposition of the charges can change his or her future by prohibiting them from entering certain schools, fields of employment and, in the case of Megan's Law offenses, certain residences or neighborhoods. It is critical for any juvenile charged with a criminal offense to seek an experienced juvenile defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, weapons offenses, possession of marijuana, trespass or other criminal charges in NJ, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Tuesday, February 14, 2017

Robbery Trial 2 Years After Arrest and Right To Speedy Trial

Antonio Jones was convicted of first-degree robbery (N.J.SA. 2C:15-1) and fourth-degree obstructing the administration of law (N.J.S.A. 2C:29-1) in the Superior Court of New Jersey, Law Division. Jones was sentenced to an extended term including life without parole with the sentence for obstruction to be served concurrently. Jones appealed based on the denial of his motion to dismiss based on failure of the State to uphold his right to a speedy trial under the 6th Amendment of the United States Constitution and Article 1, Paragraph 1 of the N.J. Constitution. Jones was arrested in February 2012. In spite of defendant’s repeated requests for the State to provide discovery, the State failed to comply and the matter was delayed. In September 2012, Jones filed a speedy trial motion. In December 2012, the trial judge ordered the State to comply with discovery demands. In February 2013, the state still had not complied and Jones again filed a speedy trial motion. The Superior Court records indicated that the motion was denied in August of 2013 but without reasons set forth. The Superior Court judge merely ordered that no trial would occur until discovery was completed and a trial date was set for February 2014, 2 years after Jones was arrested. As 18 months had already elapsed when the Defendant renewed his speedy trial motion, the N.J. Appellate Division remanded the matter to the Superior Court for a review of Jones’ speedy trial motion under the 4 factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2181, 33 L. Ed. 2d 101 (1972). Under Barker, the balancing test, applied in State v. Cahill, 213 N.J. 253 (2013) includes: (1) the length of the delay; (2) the reason therefor; (3) the defendant must assert his or her right to a speedy trial; and (4) any prejudice suffered by the defendant as a result of the delay. In Cahill, the N.J. Supreme Court considered 1 year as the amount of time triggering further inquiry under the factors set forth in Barker. First-degree robbery is a very serious charge that carries substantial penalties including up to 20 years in prison. The State has to remain within the confines of the law in collecting evidence, your arrest, and presenting evidence and testimony against you. If you have been charged with robbery it is critical you obtain experienced criminal defense counsel to fight for your rights each step of the way. For more information regarding robbery, theft, weapons, distribution and other serious crimes in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Monday, February 6, 2017

DUI Charges Follow Without Miranda After Accident

John Martens was charged with driving while intoxicated (DWI) (N.J.S.A. 39:4-50) after attempting to walk away from his burning vehicle. A passerby reported a vehicle fire and that the vehicle’s driver was attempting to leave the scene. The vehicle had damage to the driver’s side, flat tires and the airbags had been deployed. Investigating officers found only one person in the area who was swaying as he was walking away from the vehicle. The individual admitted he was the vehicle’s owner and that the vehicle struck the median. While speaking with Martens, officers noted his speech was slurred and eye movements were slow. They administered field sobriety tests (FSTs) and arrested Martens. Later, an Alcotest was administered and Marten’s blood alcohol content (BAC) was determined to be .17%. Martens was charged with DUI, reckless driving (N.J.S.A. 39:4-96); failure to maintain lanes (39:4-88); and abandoning a vehicle (N.J.S.A. 39:4-56.6). Among other motions, Martens sought to suppress statements to the officers prior to his arrest based on the fact that he was not read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The suppression motion was denied and Martens entered a conditional guilty plea to driving under the influence, reserving his right to challenge the denial of the suppression motion on appeal. Martens was sentenced as a 3rd time offender and received a 180 day jail sentence, 10 year suspension of his driving privileges, 1 year ignition interlock requirement, 12 hours in the Intoxicated Driver Resource Center as well as fines and surcharges. In State v. John Martens, the New Jersey Superior Court, Law Division, denied Martens’ suppression motions, found him guilty based upon his plea in the municipal court and imposed the same sentence as the municipal court. Martens appealed to the N.J. Appellate Division. Miranda warnings must be administered when a custodial interrogation occurs wherein the suspect has been deprived of freedom in a significant way. State v. Timmendequas, 161 N.J. 515, 614 (1999). Police need not administer Miranda warnings during routine traffic stops. Berkemer v. McCarthy, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 31 (1984); State v. Ebert, 377 N.J. Super. 1 (App. Div. 2005). Martens was asked a limited number of questions and was not subject to the equivalent of an arrest prior to being Mirandized by the officers following the FSTs. The decision of the N.J. Superior Court was affirmed. If you are charged with DUI, you are facing substantial penalties beginning with up to 1 year loss of driving privileges for a first offense up to a maximum of a 10 year loss of driving privileges and 180 days in jail for a third offense. In addition, you face the possibility of losing your job, certain professional licenses and the social stigma that comes with DUI. You need the assistance of an experience defense attorney and should not face these charges without one. For more information about driving while intoxicated, reckless driving, driving while suspended or other serious motor vehicle offenses in New Jersey visit DarlingFirm.com. This Blog is for informational purposes and not intended to replace the advice of an attorney.

Monday, January 16, 2017

Bat Used in Assault Suppressed After Illegal Police Search

Kenneth Barbour was arrested for aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)), resulting from an alleged assault on his neighbor. Upon arriving at the scene, police were told by the bloody victim, that his neighbor used a black baseball bat to strike him in the head following a verbal dispute. Police indicated they used a patrol car loudspeaker to command Barbour to exit his residence as he was thought to have outstanding warrants and possibly weapons in his possession. An individual ultimately exited the residence and was arrested approximately 20 feet from the residence. Police, not having a photo of Barbour and unsure he was the man who exited the residence, entered the residence to conduct a search of the premises for others. The trial court denied Barbour's motion to suppress, and other relief requested, holding that the actions of the arresting officers were legitimate as part of a protective sweep of the residence. Following a jury trial, Barbour was convicted of fourth degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(d)) and sentenced to 2 years probation. In State v. Barbour, the defendant challenged several aspects of the trial court's decision, including the denial of his motion to suppress the bat alleged to have been used as the weapon in the assault. The Fourth Amendment of the United States Constitution and Article I of the New Jersey Constitution guarantee the right to citizens to be free from unreasonable search and seizure unless certain very narrow exceptions apply. State v. Maryland, 167 N.J. 471 (2001). The New Jersey Appellate Division held that a protective sweep must be limited to "areas in a defendant's immediate control." Such a sweep is valid only when there is (1) a legitimate reason for the officers presence in the residence; and (2) officers have a reasonable suspicion that there is a dangerous individual hiding in the area to be swept and that the burden of proving these circumstances existed is on the State. State v. Davila, 203 N.J. 97 (2010). In light of the evidence and testimony presented that the Defendant was outside when arrested and there was no reasonable articulable suspicion that another dangerous individual was inside the residence, the N.J. Appellate Division found the search and seizure to violate the Defendant's right to be free from unreasonable search and seizure and reversed the denial of the motion to suppress. Assault and attempted assault charges are very serious and bear severe consequences including incarceration, the inability to obtain employment and certain licenses, and social stigma associated with such problems. If you are facing assault charges, you should obtain experienced criminal defense counsel immediately to insure your rights are protected. For more information about assault, unlawful possession of a weapon, possession of a weapon for an unlawful purposed or other serious criminal charges in New Jersey, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Wednesday, November 23, 2016

Juvenile's Excited Utterance Admissible Under Hearsay Exception

State of New Jersey In the Interest of A.R. involved a 14 year old juvenile found guilty of touching a 7 year old child, J.C., sexually on a school bus, a crime that would constitute second-degree sexual assault (N.J.S.A. 2C:14-2(b)) if committed by an adult. J.C. was diagnosed with autism and ADHD. Upon exiting the bus, which was returning the children from summer camp, J.C. exclaimed that A.R. had touched him. There were 20 children on the bus and no witnesses to the alleged act. J.C. repeated his statement to a detective days later. The trial judge from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County court found that the exclamation upon exiting the bus and statements during the detective's interview were admissible under the "tender years" exception to the hearsay rule (N.J.R.E. 803(c)(27)). At the bench trial in the, the court found J.C. incompetent to understand the proceedings and offer testimony but did accept J.C.'s testimony based on N.J.R.E. 803(c)(27). On appeal, the N.J. Appellate Division determined that the statements to the detective were testimonial in nature, under Crawford v. Washington, 541 U.S. 36 (2004), and A.R.'s counsel was not able to protect the confrontational rights of the 14 year old through cross-examination due to the incompetence of J.C. The Appellate Division held that the exclamation upon exiting the bus was not testimonial in nature and remanded for reconsideration. If a juvenile is charged with a crime, the disposition of the charges can change his or her future by prohibiting them from entering certain schools, fields of employment and, in the case of Megan's Law offenses, certain residences or neighborhoods. It is critical for any juvenile charged with a criminal offense to seek an experienced juvenile defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, sex-offenses, Megan's Law provisions or other criminal charges in NJ, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Monday, November 14, 2016

Sexual Assault Was Apparent To Judge But Sentencing Not As Obvious

Marvin Flores-Gamez was indicted for first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(1)); 2 counts of second-degree sexual assault (N.J.S.A. 2C:14-2(b)); and third-degree endangering the welfare of a child by engaging in sexual conduct with the victim (N.J.S.A. 2C:24-4(a)). In 2011, the Flores-Gamez contacted 12 year old Susan on Facebook, when Flores-Gamez was 19. Susan and Flores-Gamez traded messages on Facebook for some time before he began to mention the idea of having sex with her. In November 2011, Susan agreed to meet Flores-Gamez, with Susan's cousin, Kate, and Kate's boyfriend, Tim, present. The 4 went to Susan's house and the men gave the children juice that tasted like alcohol. Flores-Gamez and Susan ended up alone together in the bedroom and, when Susan resisted his advances, Flores-Gamez removed her clothes and began to have sex with her. When he refused to stop, Susan bit Flores-Gamez on the hand to make him stop. For the next 5 days, Susan and Flores-Gamez exchanges messages on Facebook until Susan's father discovered Susan had missed school and, during the subsequent inquiry, learned what had happened. Susan's father took her to the police station and, during an investigation, Flores-Gamez provided a statement with facts similar to those Susan provided. At trial, the Defendant did not testify. Both Tim and Kate testified that the Defendant and Susan were never alone together and that the Defendant did not sexually assault Susan. A psychologists report was also offered to show that Susan had indicated Tim's mother was also in the apartment and was the one who stopped the sexual assault. Following a trial in the Superior Court of New Jersey, Law Division, Bergen County, Flores-Gamez was found guilty of 2 counts of second-degree sexual assault. Flores-Gamez was sentenced to a concurrent 8 year term for both counts, subject to an 85% parole disqualifier under the No Early Release Act (N.E.R.A.) (N.J.S.A. 2C:43-7.2). In State v. Flores-Gamez, the defendant appealed. The N.J. Appellate Division affirmed the decision of the trial judge except defendant's sentence. The Appellate Division held that the trial judge did not follow proper procedure with regard to sentencing. The judge listed the aggravating and mitigating factors, without making any specific findings in regard thereto, and then meted out the sentence. The judge found aggravating factors one and two; however, the victim's age was an element of second-degree sexual assault and could not be considered. Also, the trial judge failed to give any indication that the mitigating factors raised by the defendant were considered. The Appellate Division remanded for resentencing. If you are charged with a sex crime you are subject to incarceration, registration as a sex offender and the accompanying stigma which will effect where you may live, where you may work and how others will treat you and possibly even civil commitment. It is critical that you obtain experienced criminal defense counsel to assist you with these charges. For more information about rape, endangering the welfare of a minor, sexual assault, criminal sexual contact and other sex crimes in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.