Thursday, September 26, 2013

Domestic Violence Statutes Protect Unborn Children

Pregnant women who have been victims of domestic violence in New Jersey can get restraining orders on behalf of their unborn children pursuant to an Ocean County Superior Court Judge's ruling in May. Generally, the laws of New Jersey do not bestow unborn fetuses with any legal rights. As New Jersey law exists, a person does not typically receive any civil rights until they are born and become a legal "person." Judge Lawrence Jones's ruling in a recent domestic violence case seems to change the status of the law with regard to the rights of unborn children. Before his ruling, a pregnant woman who was awarded a restraining order against an abuser would have to wait until her child was born to seek an additional restraining order to protect the newborn child. Judge Lawrence ruled that women who are already seeking a restraining order for themselves should not have to wait until their child is born to petition the court to grant an additional restraining order on behalf of the child. Although, in his opinion, the Judge opines that the child's restraining order begins to take effect only after birth. In his written opinion, Judge Lawrence states that the last place a victim of domestic violence would want to go upon giving birth, is to a courthouse to protect their newborn baby. The case before the Judge involved two teenagers from Ocean County. The 18 year old male was continuing to abuse his pregnant 17 year old girlfriend during her pregnancy because he disagreed with her choice to keep their baby. The Judge's ruling begins to spark the debate as to whether New Jersey courts should begin to expand the rights of unborn children and it is yet unknown how this ruling will affect the rights of the unborn. This Judge was cautious to note that the restraining order for the child only becomes effective at birth, so it seems as if his ruling has more of a procedural impact than a substantive one. Yet, it does provide victims of domestic violence with an additional safeguard in the protection of themselves and their children. If you have been charged with or are the victim of domestic violence you should consult an experienced criminal defense attorney to ensure your person and your rights are protected. For more information regarding domestic violence, assault, divorce or other criminal or family law matters in New Jersey HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Tuesday, September 24, 2013

DUI: Newly Proposed Bill Regarding Blood Samples

A controversial bill is currently being reviewed by the New Jersey Legislation could have a great effect upon automobile accidents involving driving under the influence (DUI). The bill, A-4464, is proposing that any accident that results in a fatality would subject drivers of the vehicles involved to mandatory blood testing for both illegal drugs and alcohol. Currently, under New Jersey state law, police are required to have probable cause to believe the driver is under the influence in order take a blood or breath sample from a driver of a vehicle. In addition, the bill would impose the same penalties and suspension of a driver’s license for refusing a blood test as they would for refusal of a breath test. Some defense attorney’s throughout the state do not believe the proposed bill will pass on a constitutional basis. In a United States Supreme Court case decided in April of this year, the court held that there is a requirement of law enforcement to obtain a search warrant or consent in order to extract blood from driver to test for alcohol. Prosecutors throughout the state generally believe that the bill would permit them to perform the justice they believe is needed in cases of vehicular manslaughter committed by drivers under the influence of drugs or controlled dangerous substances (CDS). Prosecutors will likely seek to extend the bill to accidents that result in serious injury. The bill will not be heard and voted on by the state legislature until the next legislative session in November. DWI in NJ will have a serious impact on your life including loss of license for up to 10 years, thousands of dollars in fines and penalties and can have significant implications in related matters such as later personal injury. If you are charged with driving while intoxicated in NJ you should seek an experienced DUI attorney immediately to protect your rights. For more information on DUI, possession of CDS in a motor vehicle, reckless driving or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sunday, September 22, 2013

School Zone Drug Distribution And Plea Agreements

In State v. Gerns, the New Jersey Supreme Court set forth certain principles pertaining to plea agreements. Gerns was indicted for 3rd degree distribution of marijuana within 1,000 feet of school property (N.J.S.A. 2C:35-7); 3rd degree possession of marijuana with intent to distribute (N.J.S.A. 2C:35-5a11 and N.J.S.A. 2C:35-5b(11); 3rd degree possession of marijuana with intent to distribute within 1,000 feet of school property (N.J.S.A. 2C:35-7) and two counts of 4th degree distribution of marijuana (N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12). The plea required cooperation with police in the apprehension of other drug offenders in exchange for softer sentencing. The Confidential Informer Contract called for a reduction in the defendant's sentence based on the degree of cooperation received by the prosecutor. Gerns made efforts to cooperate but was unsuccessful as his arrest was known the others and he was assumed to be an informant and the prosecutor withheld any positive recommendation due to Gerns failure to offer valuable information. Gerns appealed the sentence as it was far in excess of the term promised in the plea agreement. The New Jersey Appellate Division found that the prosecutor acted in an arbitrary and capricious manner and remanded for resentencing. The Comprehensive Drug Reform Act of 1986, N.J.S.A 2C:35-1 to 36-9 (Drug Act) includes provisions for the protection of children from dealers in school zone cases and carries a presumption of mandatory imprisonment. However, a provision is also included, N.J.S.A. 2C:35-12, giving prosecutors authority to recommend lesser sentences in exchange for cooperation with law enforcement. Because of the great discretion given prosecutors, there is potential for abuse as well so prosecutors are required to place the reasons for their sentencing recommendations on the record at sentencing. The State defined cooperation as assistance from defendant resulting in valuable information to the State and refused to waive any mandatory minimums while Gerns argued he made a good faith effort to cooperate and also that the plea agreement did not define cooperation nor was the plea agreement specific as to the sentence it would recommend for cooperation. The state is required to define cooperation so the defendant's plea may be voluntary, knowing and intelligently provided. A defendant is required to disclose all criminal activities known to them and partial performance may be considered if of tangible benefit to the prosecutor. It the prosecutor fails to reduce the sentence offered, the defendant has the right to explain the result in an effort to demonstrate the prosecutor's decision was arbitrary and capricious. In Gerns, the NJ Appellate Division held that, when there is a reasonable misunderstanding, the defendant may 1) withdraw the guilty plea; 2) have a hearing to determine the level of benefit the state obtained from defendant's cooperation; or 3) negotiate another plea. If you are facing criminal charges and believe a plea agreement is in your best interest, you should always review any agreement with an experienced criminal defense attorney to insure you are protected by its terms. Additionally, if you have accepted a plea under certain beliefs only to later find the prosecution was not offering what you thought or is now trying to modify the terms of the bargain you should consult with an attorney to protect your rights. For more information about plea offers, possession, distribution, distribution in a school zone, intent to distribute, drug charges or other criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Saturday, September 21, 2013

How High Should Bail Be To Insure Defendant's Appearance

In State v. Steele, 61 A.3d 174 (2013), Defendant Tyrone Steels appealed from the order of the Passaic County Superior Court denying his motion to reduce bail on two indictments for fourth degree offenses. Bail was set at $150,000, cash only, for 6 counts of lewdness, N.J.S.A. 2C:14-4b(1), and $50,000, no 10% option, for violating a condition of community supervision for life (CSL), N.J.S.A. 2C:43-6.4d for failing to report arrests to his parole officer and refrain from initiating contact with a minor. The Defendant pled guilty to 1st degree kidnapping, robbery and attempted sexual assault under separate indictments from Bergen and Passaic in 1997 and was incarcerated until 2010 when released subject to CSL and Megan's Law. The charges relating to the challenged bails occurred while defendant was on bail for prior violations of CSL. The State's plea offer included recommendations of 2 concurrent 18 month terms for the lewdness charges which would run consecutive to 3 concurrent 18 month charges for the community supervision violations charged. The NJ Appellate Division reviewed the Superior Court Judge's denial of the bail reduction motion and found that the trial court was incorrect in its consideration of the safety of the community when setting the bail amount for the two 4th degree offenses in excess of the $2,500 maximum set forth in N.J.S.A. 2C:6-1. In order for bail to have been set at $150,000, cash only, and $50,000 no 10%, there would be a necessary showing that defendant's release on bail constituted a serious threat of destruction of evidence by defendant or danger to witnesses. In spite of the fact that the bail amounts set were excessive, the defendant faced exposure to sentences significantly longer than typical for the underlying offenses and bail in excess of the $2,500 maximum was appropriate and necessary to ensure the defendant's appearance at trial. If you are arrested and facing bail, it is critical you secure your release so you can continue to work and can participate in your own defense. However, bail is often high and many are forced to incur financial hardship through non-payment of other expenses to meet bail or pay fees to a bondsman in order to obtain their release. An experienced attorney can often obtain a decrease in your bail amount so you are free to return to your job and family and are better able to assist in your defense. For more information about bail reduction, bail setting or other criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney.

Thursday, September 19, 2013

Distribution of Drugs in a School-Zone May Not Bar Drug Court

In a recent case involving 3rd degree distribution of a controlled dangerous substance (CDS), marijuana, in a school zone a defendant was denied admission into the Drug Court program and appealed. Mike Pope appealed the decision of the Sussex County Superior Court Judge based on the misapplication of the standard for ordinary probation to deny him entry into Drug Court, based on a school-zone offense, while N.J.S.A. 2C:35-14 allows school-zone offenders to be sentenced to Drug Court probation. The statute permitting entry into Drug Court applies as long as the transaction occurring within the school-zone does not involve distribution to a minor. Mark Pope pled guilty to distribution in the parking lot of Vernon High School under a negotiated settlement agreement which contemplated defendant's intent to apply to Drug Court. The Sussex County prosecutor argued that Pope's violation of N.J.S.A. 2C:35-7, involving distribution within 1000 feet of a school-zone, served as an automatic bar to defendant's entry into Drug Court. Defendant's appeal, in State v. Pope, asked the NJ Appellate Division to reconsider Pope's application to Drug Court based on the requirements of track 1 or 2 for admission. Track 1 being the commission of a crime subject to a presumption of mandatory incarceration and the satisfaction of 9 factors. Typically this is reserved for 1st or 2nd degree crimes and is done with the consent of the prosecutor. Track 2 is typically applied to those with ongoing drug habits who have not committed any form of violent offense. The NJ Appellate Judges held that the trial court misapplied the statute and remanded the matter for consideration under the appropriate criteria. A drug related conviction in NJ can have serious and lasting consequences including prison, loss of license, substantial fines and the stigma of the conviction or plea can result in the loss of certain employment or educational opportunities. If you are facing charges of use, possession or distribution of CDS including marijuana, meth, oxy, heroin, xanax or other drugs, it is critical you consult with an experienced criminal defense attorney immediately to protect your rights. For more information about prescription or non-prescription drug charges for use possession or distribution, gang-related drug charges, controlled dangerous substances in a motor vehicle, DUI and other criminal and serious municipal court matters visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Monday, September 16, 2013

Additional Charge In Sexual Assault On Minor Does Not Always Mean More Time

Although he did not escape guilt, the defendant did receive a reduced sentence for charges of first degree aggravated assault, second degree sexual assault and second degree endangering the welfare of a minor in State v. W.L. Following a jury trial, the defendant was sentenced to 15 years imprisonment with an 85 percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the crime of 1st degree sexual assault into which the crime of 2nd degree sexual assault was merged. The defendant was also sentenced to 7 years for endangering the welfare of a minor to be served consecutively to the 15 years for the other charge. When sentencing, a Judge may count aggravating factors only once and must apply a Yarbough analysis when imposing an excessive sentence. The judge in State v. W.L. applied aggravating factors 2 (gravity of the offense), 3 (risk defendant will commit another offense) and 9 (the need to deter such activity) and mitigating factors 7 (defendant's lack of criminal history) and 8 (the likelihood the defendant's behavior will recur). An essential element of the conviction for aggravated sexual assault was the child's age and finding of an aggravating sentencing factor cannot be based solely on an essential element of the crime charged. Additionally, the sentencing Judge failed to apply the appropriate standards from State v. Yarbough, 100 N.J. 627, 643-644 (1985) in determining whether to impose a consecutive sentence for count 3, endangering the welfare of a minor. If you are facing charges for sexual assault, endangering the welfare of a minor or similar charges, you should consult an experienced criminal defense attorney immediately. If you are convicted or plea to a sex crime in New Jersey, in addition to incarceration you face lifelong listing on a registry which can affect your ability to obtain employment, restrict where you may reside and generally have a negative impact on the remainder of your life. For more information about soliciting a minor, statutory rape, child molestation, internet crimes, child pornography or other sex crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Monday, September 9, 2013

Texting A Driver Can Bring Liability In NJ

A recently decided court case could change people’s behavior in respect to texting friends who are driving. Kubert v. Best has created a new potential liability for the sender of a text message to a driver who is involved in an accident. Best, the driver of the vehicle in the case was sent text messages by Shannon Colonia, a friend, when he caused an accident with a motorcycle in which both people on the motorcycle lost their legs. While the driver has the ultimate responsibility for avoiding distractions while behind the wheel, the court deemed that like a passenger who must avoid distracting the driver, a sender of the text message must do the same. Liability for accidents involving the sender of a text message can vest when the person sending the text to the driver knows the recipient of the message is behind the wheel. It is almost akin to an accomplice liability where the texter can be liable if they had knowledge of the driver's actions through continued exchange of texts. In this case the claim of liability against Colonia, the sender of the text message, was dismissed due to the lack of evidence regarding her knowledge of Best being on the road. This could however create a new cause of action for parties involved in accidents due to driving while texting. This new crime can carry a one hundred dollar fine for a first offense and up to a six hundred dollar fine with a 90 day loss of license for a third offense. This case could potentially have created precedenct on future personal injury liability cases involving texting while driving, however we will have to wait and see. Municipal and Traffic Court offenses in NJ will have a serious impact on your life and can have significant implications in related matters such as personal injury. If you are charged with municipal or traffic court violations in NJ you should seek an experienced attorney immediately to protect your rights. For more information about use of a cell phone while driving, driving under the influence, reckless driving or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.