Judge's Finding Against Civil Commitment Of A Sex-Offender Is Reversed

C.H. is a rapist with a history of sex crime convictions for acts committed from 1978 through 2005 against women ages 17 to 36. C.H. also has a history of convictions for drug offenses, robbery, receiving stolen property and theft, parole violations and failure to register as a sex offender. As a result of his previous post-release behaviors and prior pleas and guilty verdicts including sexual assault, attempted criminal sexual contact, terroristic threats, assault, criminal sexual assault, criminal restraint, criminal attempt and rape the State petitioned, in the Superior Court of New Jersey, Essex County, for the civil commitment of C.H. pursuant to the Sexually Violent Predator Act (SVPA)(N.J.S.A. 30:4-27.24 to -27.38) upon his scheduled release from the Special Treatment Unit (STU). In May 2012, two State psychiatrists both found that C.H. fit the criteria for civil commitment under the SVPA due to his inability to control his own sexually violent behavior, likelihood of reoffending and danger to the public as set forth in In re Commitment of W.Z., 173 N.J. 109 (2009) and In re Civil Commitment of A.H.B., 386 N.J. Super. 16 (App. Div. 2006). The State’s burden of proof in seeking civil commitment is clear and convincing evidence pursuant to In re Civil Commitment of J.H.M., 367 N.J. Super. 599 (App. Div. 2003). During a commitment hearing, C.H.’s psychiatrist contended that C.H. was not “highly likely” to reoffend if released. Although the judge held that C.H. suffered from paraphilia, antisocial personality disorder (ASPD) and polysubstance abuse and there was a risk that C.H. would reoffend, the judge held that the State had not met its burden of proof. In re the Civil Commitment of C.H. resulted in the State’s appeal of the judge’s finding with regard to C.H.’s likelihood of reoffending. Pursuant to In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007) a trial court’s order of commitment under the SVPA will be reversed only for “an abuse of discretion or lack of evidence to support it.” Under In re D.C., 146 N.J. 31 (1996) the record must be reviewed to determine whether the judge’s decision reflected the evidence presented and findings set forth by the experts for both sides collectively where the factfinder would not have sufficient knowledge to make an informed decision without reference to expert opinions. Reasoning that the judge’s failure to find a risk of re-offense in light of evidence and expert opinions presented was a “mistaken exercise in discretion” the N.J. Appellate Division reversed the matter with direction to the trial judge to more fully review the record with regard to the issues presented at future review hearings regarding the commitment of C.H. If you are facing sex crime charges the consequences are severe including potential registry as a sex-offender under Megan's Law, the stigma associated with sexual assault perpetrators, prison and possibly civil commitment. If you are charged with a sex crime, you should obtain experienced criminal defense counsel immediately. For more information about sexual assault, rape, internet crimes, solicitation of a minor, endangering the welfare of a minor or other sex crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

No Suppression Of Handguns Shown In Video

Ronald Payne was convicted in the Superior Court of New Jersey, Essex County for two counts of second-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(b)), third-degree receiving stolen property (N.J.S.A. 2C:20-7) and third-degree resisting arrest (N.J.S.A. 2C:29-2a(3)(a)) after police received a report of a man in possession with a gun in Belleville, NJ. Upon arriving in the area, police saw the defendant run to a car which sped away as soon as the defendant got in. As police chased the vehicle, Payne pointed a gun at the officers and his actions were recorded by the cruiser's dash camera. Police ultimately stopped the vehicle and, upon removing the defendant, saw two handguns in plain view on the vehicle's back seat. In State v. Payne, the defendant sought suppression of the weapons discovered, however, the Superior Court judge viewed the patrol car's video and declined to hold a suppression hearing. The defendant pled guilty and was sentenced to 5 years in prison with a 3 year parole ineligibility period under the Graves Act (N.J.S.A. 2C:43-6(c)). The defendant appealed the denial of his suppression motion without an evidentiary hearing and the court's failure to award him appropriate jail credits at sentencing as a result of a parole violation. The NJ Appellate Division found that the defendant's appeal of the suppression motion was without significant merit as the video showed enough to see the handguns in plain view and leave no material facts in dispute, under State v. Hewins, 166 N.J. Super. 210 (1979), with regard to the handguns. The Appellate Division did remand the matter to the trial court to determine whether the 720 jail credit awarded to the defendant was appropriate or whether he was entitled to additional jail credits. Second-degree unlawful possession of a firearm or handgun carries up to 10 years in prison with a mandatory parole ineligibility period under the Graves Act. If you are facing weapons charges, you should seek experienced criminal defense counsel immediately. For more information about weapons possession, use or possession of a gun in the commission of a crime, possession of a handgun without a permit, weapons possession while on probation or parole, illegal weapons or other serious charges in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Acquittal Of Burglary And Arson But 6-year Sentence For CDS

Michael Naples was indicted for second-degree aggravated arson (N.J.S.A. 2C:17-1(a)), third-degree arson (N.J.S.A. 2C:17-1(b)(2)), third-degree burglary (N.J.S.A. 2C:18-2(a)(1)) and possession of drugs (cocaine) (N.J.S.A. 2C:35-10(a)(1)). Following a fire, surveillance video revealed Naples riding his bicycle past a vacant building into a parking lot then showed the defendant in the lot again shortly after the fire began. Detectives had seen Naples in the past and quickly located him for questioning. During the conversation, the defendant admitted to having a crack pipe, which he provided to officers, and was also found to have a gas cap in his possession. He denied any knowledge of the fire but smelled of gasoline according to the detectives. His motion to suppress the evidence was denied and the jury acquitted Naples of arson and burglary and found him guilty only of the cocaine possession. He was sentence to a discretionary extended 6-year term in prison with a 3-year period of parole ineligibility. In State v. Naples, the NJ Appellate Court heard the defendant's arguments against the trial court's denial of the suppression motion and the extended sentence imposed for the minute amount of drugs. As to the suppression motion, the Appellate Division quoted State v. Pineiro, 181 N.J. 13, 21 (2004) in holding that based on the "facts available to the officer at the moment of the seizure or the search warrant[ed] a man of reasonable caution in the belief that the action taken was appropriate." With regard to the sentence imposed, the Appellate Division found a "clear showing of abuse of discretion", pursuant to State v. Whitaker, 79 N.J. 503, 512 (1979) on the part of the trial court. Although the prosecution moved for an extended sentence under N.J.S.A. 2C:44-3(a) applicable to persistent offenders as Naples was over 21 years old, previously convicted on at least 2 separate occasions of 2 separate crimes committed at different times after attaining the age of 18 years old and 10 years had not passed since the commission of his last release from confinement the Appellate Division held that being a persistent offender is only part of the consideration in sentencing to an extended term under State v. Dunbar, 108 N.J. 80 (1987). In Dunbar, the court held that the court must also determine whether an extended sentence is appropriate to protect the public under State v. Pierce, 188 N.J. 155, 164-65 (2006), weigh aggravating and mitigating factors and determine whether to impose a parole ineligibility period. The Appellate Division determined that the trial court failed to make the appropriate findings and gave too much weight to the controlled dangerous substance (CDS) found in Naples possession. The matter was reversed and remanded to the trial court for resentencing in light of the appropriate criteria and Naples criminal history. Drug charges often heavily sentenced and, if found guilty, you risk incarceration, loss of driver's license and substantial fine. If you are facing drug charges, you should seek experienced criminal defense counsel immediately. For more information about burglary, drug charges, CDS, theft, robbery or other serious criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sexual Assault Remanded For Consideration Of Mitigating Factors

V.E.A. was indicted for second-degree sexual assault (N.J.S.A. 2C:14-2(b)) and second-degree endangering the welfare of a child (N.J.S.A. 2C:24-4(a)) and was convicted on both counts following a jury trial. The charges stemmed from the accusations of his daughter that she awoke one evening to find the Defendant’s hand inside her shorts and panties on her buttocks after falling asleep on his bed while they were watching a movie. The child testified that he then began to move his hand around toward the front of her body and upward toward her breast at which time she asked to go to the bathroom. The Defendant excused her to go to the bathroom and did not continue the behavior according to his daughter. At sentencing, V.E.A. received a 7 year prison sentence with an eighty-five percent parole disqualifier subject to the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2) for sexual assault and a concurrent 7 year prison sentence for the second count of the indictment. In State v. V.E.A. the NJ Appellate Division heard V.E.A.’s arguments with regard to aggravating and mitigating factors and the disparity in the trial court judge’s findings with regard to same. The NJ Appellate Division found that where the judge stated at sentencing that she found no mitigating factors to exist but in the Judgment of Conviction indicated mitigating factor 10 (N.J.S.A. 2C:44-1(b)(10)) “the defendant is particularly likely to respond affirmatively to probationary treatment” applied and was accorded substantial weight by the trial judge such conflicted existed as to warrant the remand of the matter for resentencing with appropriate review of the aggravating and mitigating factors. If you are charged with a sex crime you are subject to incarceration, registration as a sex offender and the accompanying stigma which will affect 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 HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Stay Of Suspension During DUI Appeals Becomes Unlikely

As a result of State v. Robinson, judges have been warned about the stay of license suspensions pending appeal in driving under the influence (DUI) cases. Brian Robertson was convicted of driving while intoxicated as a result of the officers observations and his Alcotest reading of .13% blood alcohol content (BAC) after Robertson provided breath samples. In an effort to eliminate the Alcotest results, the defendant sought records with regard to repairs and diagnostic tests with regard to the specific Alcotest machine used. The records were not provided and the defendant appealed. Both the municipal court judge and the state court judge stayed the sentence of 7 month license suspension pending appeal. The NJ Appellate Division affirmed the conviction as some of the records sought had been deleted in good faith and others would not sway the court from convicting the defendant based on the officers observations and totality of the circumstances. The most problematic issue with this case for the Appellate Division was the stays of sentence permitted without findings as to the factors set forth in Crowe v. DeGioia, 90 N.J. 126 (1982). The factors include the result of irreparable harm to the defendant if temporary relief is not afforded, whether any substantial issue remains unsettled, whether all material facts are controverted, and the whether a hardship would result to the defendant in the event the defendant's license suspension was not stayed. Neither the municipal court judge nor law division judge made findings with regard to defendant's driving or substance abuse history or any harms, such as loss of employment, he could have sustained as a result of the sentence imposed. As a result of the need to protect the public from the possibility of defendant's re-offending during the appellate process, judges are cautioned that stays pending appeal are not to be utilized "without giving good reason for it." A conviction for driving while intoxicated or driving under the influence in NJ has serious and lasting effects including the obvious loss of license as well as ramifications in later civil or criminal suits for wrongful death, damages and the like. A DUI, even if a first, can result in lengthy suspensions, fines and even jeopardize your ability to obtain certain professional licenses or other jobs. If you are charged with DUI in NJ, you should contact an experienced driving under the influence defense attorney to protect your rights. For more information about DWI, drug DUI, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in New Jersey visit www.HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Reversal of Manslaughter Conviction After Jury Accesses Taped Statement

Matthew Craddock was convicted of first-degree aggravated manslaughter (N.J.S.A. 2C:11-4(a)(1)), as a lesser included offense of murder charges, for the stabbing death of James Grace, who was dating Craddock's ex-girlfriend, M.P. He was also convicted of third-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(d)) and fourth-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(d)). At trial, in addition to other evidence presented, the jury heard the defendant's entire taped confession to the police as well as a voicemail the defendant left on his girlfriend's phone after the incident. Testimony for the State was also provided by M.P., her friend L.A., and L.A.'s fiance' Mi.P who all witnessed the altercation between Craddock and Grace. None actually witnessed the actual stabbing but they did hear Grace yell "he stabbed me" and one saw the defendant throw an object that appeared to be a knife handle into the road. The defendant offered a different version of the facts than the others and claimed his actions were in self-defense as an altercation erupted when he was attempting to retrieve M.P.'s cell phone from another individual, Grace, who the defendant believed had stolen the phone. Craddock was sentenced to an aggregate 24-year term with an eighty-five percent parole ineligibility period under the No Early Release Act (NERA)(N.J.S.A. 2C:43-7.2). Craddock appealed based on the admission of the taped statements without redaction under claim that certain information in the recordings was more prejudicial than probative. In State v. Craddock, the NJ Appellate Division considered the holding in State v. Burr, 195 N.J. 119 (2008) wherein it was determined that allowing a jury full access to a videotaped statement had the potential for great prejudice. In State v. Miller, 205 N.J. 109 (2011) the court held that the review, by the jury, of taped statements should be undertaken in court where parties are present and judges my provide jury instructions with regard to portions replayed. Finally, in State v. A.R., 213 N.J. 542 (2013) the court held that the jury should not have unfettered access to audio or videotaped statements during deliberations. Once the appellate division determined that the trial court erred in providing the jury with unfettered access to the taped statements, it was further determined that the potential prejudice to the defendant from the jury's access to the statements was not harmless error and the conviction was reversed with the matter remanded to the trial court for a new trial. If you are facing charges of murder, manslaughter or weapons charges, you are facing severe penalties including as much as life in prison. When confronting criminal charges, it is imperative that you have experienced criminal defense counsel at your side to ensure you are afforded due process and your rights are protected. For more information about murder, manslaughter, weapons offenses or other serious crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sex Assault Conviction Overturned Due To Police Officer's Prejudicial Testimony

E.S. was convicted of first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)); second-degree sexual assault (N.J.S.A. 14-2(b)); and second-degree endangering the welfare of a child (N.J.S.A. 2C:24-4(a)) based on allegations by his stepdaughter S.W. S.W. was born in 1996 and her mother, N.S, married E.S. in 1998. E.S. and N.S. had children of their own. Living conditions in the family home were beyond crowded and the parents and five children, including S.W., all slept in one bedroom. S.W. complained to her mother in 2008 about multiple touchings by E.S. and when nothing changed, S.W. complained to Aziza Hassan, her teacher. During the interaction with Hassan, S.W. began sobbing in the early morning before school began after Hassan found S.W. waiting in the classroom. Hassan asked S.W. what the problem was and, after S.W. indicated there were problems at home, Hassan asked S.W. if she was raped. Once S.W. indicated to Hassan that S.W. had been raped, Hassan notified the police, DYFS and school authorities. E.S. was arrested after an investigation and sentenced to 12 years in prison with an eighty-five percent parole ineligibility period under the No Early Release Act (N.E.R.A.)(N.J.S.A. 2C:43-7.2) and a concurrent 6 year term also subject to NERA. In State v. E.S., E.S. appealed based on multiple issues which the court found did not prejudice his rights. The N.J. Appellate Division held that one of the issues raised on appeal by E.S. was valid and had substantial probability of prejudicing the jury. Detective Jennifer Novak of the South River Police Department made multiple statements at trial, in the jury's presence, which supported the credibility of S.W. In particular, Novak indicated her belief of S.W.'s statements and implied that the investigation revealed evidence that the crimes had occurred. Even after the admonishment of the trial judge, Novak continued to make implications about the veracity of S.W. and guilt of E.S. The N.J. Appellate Division heavily weighed the matter of Novak's testimony and sighted to multiple prior decisions regarding the matter. State v. J.Q., 252 N.J. Super. 11 (App. Div. 1991) addressed the issue of witness credibility being a question for the jury. State v. Landeros, 20 N.J. 69, (1955) held that police officers may not offer opinions as to the defendant's culpability when testifying as fact witnesses. Novak's implication that notes written by S.W. in response to Hassan's questioning about the word 'rape' included more inculpatory evidence than they did was contrary to State v. Bankston, 63 N.J. 263 (1973). The N.J. Appellate Division held that the testimony of Novak could have prejudiced the jury against E.S. and reversed the convictions and remanded to the Law Division for a new trial on all three counts of the indictment. If you are accused of sexual assault or other sex crimes in NJ you are facing very serious penalties including civil commitment, prison and lifetime registry as a sex offender. You need experienced legal counsel to defend you against these charges. For more information about sexual assault, rape, endangering the welfare of a minor, solicitation of a minor, internet crimes or other sex crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

No Expungement After Plea In Money Laundering Scheme

R.Z. sought an expungement of convictions of second-degree theft by deception (N.J.S.A. 2C:20-4) and second-degree money laundering (N.J.S.A. 2C:21-25) to which he entered guilty pleas. In 2012, the trial court granted the expungement and in 2013 the NJ Appellate Division reversed the trial court's decision. The convictions stemmed from ongoing and continuous fraudulent claims to Medicaid from which in excess of $50,000 was received by R.Z.. Pursuant to In re Ross, 400 N.J. Super. 117 (App. Div. 2008), which interpreted New Jersey's expungement statute (N.J.S.A. 2C:52-2(a)), a requirement for expungement of more than one crime is that the crimes be committed concurrently rather than on separate occasions as expungement is not available to those who have committed prior or subsequent crimes. In the Matter of Expungement petition of R.Z. included an effort by petitioner to utilize provisions of a 2010 amendment to the N.J.S.A. 2C:52-2(a) which included a means for early expungement when certain criteria are met including that the public interest warranting an early expungement in certain matters. Pursuant to In re Kollman, 210 N.J. 557 (2012), a petitioner seeking an early expungement must still meet all other requirements of the expungement statute. The NJ Appellate Division affirmed the denial of R.Z.'s petition for expungement. If you have prior crimes haunting you and would like to expunge them from your record, you should consult with an experienced attorney to determine your eligibility prior to filing a petition for expungement. For more information about expungement, theft, drug crimes, disorderly persons offenses, 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.

Armed Robber Seeks Post-Conviction Relief

Jeffrey Toth was indicted for the armed robberies of a 7-11 and Quick Chek in Woodbridge, NJ and pled guilty to two counts of first-degree armed robbery. At 7-11, Toth was said by a clerk to have a knife and the Quick Chek clerk claimed Toth used a screwdriver as a weapon. Toth was later identified as the robber after bragging to others about robbing the stores. In State v.Toth, the Defendant pled guilty in exchange for a maximum sentence of 15-years imprisonment and dismissal of the remaining counts of the indictment. He was sentenced to 10-years in prison, the minimum for first-degree armed robbery, with an eighty-five percent parole disqualifier under the No Early Release Act (NERA)(N.J.S.A. 2C:43-7.2). Years later Toth sought post-conviction relief (PCR)claiming his attorney failed to argue certain mitigating factors at sentencing but was denied without an evidentiary hearing finding Toth's counsel had made such arguments. He appealed and the NJ Appellate Division reversed and remanded the decision for review under State v. Parker, 212 N.J. 269 (2012) including either oral argument regarding his PCR petition or give adequate explanation as to why oral argument will not be held. First-degree armed robbery is a very serious charge that carries substantial penalties including up to 20 years in prison for each charge. If you have been charged with armed robbery it is critical you obtain experienced criminal defense counsel to defend you and protect your rights. For more information regarding robbery, theft, weapons, distribution and other serious crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Conviction For Attempted Murder of Newark Police Officer Upheld On Appeal

Omar Bridges and two co-conspirators were charged, by an Essex County grand jury, with three counts of first-degree attempted murder (N.J.S.A. 2C:11-3 and 2C:5-1); three counts of second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)); third-degree unlawful possession of a weapon, a handgun (N.J.S.A. 2C:39-5(b)); second-degree possession of a weapon, a handgun, for an unlawful purpose (N.J.S.A. 2C:39-4(a)); second-degree unlawful possession of an assault firearm (N.J.S.A. 2C:39-5(f)); third-degree receiving stolen property (N.J.S.A. 2C:20-7); second-degree eluding (N.J.S.A. 2C:29-2(b)); and first-degree conspiracy to attempt to murder the occupants of a vehicle (N.J.S.A. 2C:5-2 and 2C:11-3). Bridges was ultimately convicted of the attempted murder of Newark Police Officer Patinho, aggravated assault on Officer Patinho, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, unlawful possession of an assault weapon, receiving stolen property and certain persons not to have weapons. For his participation in stealing a Jaguar, engaging in a shoot-out with occupants of another vehicle and the shooting of a police officer in the chase thereafter, Omar Bridges was sentenced to an aggregate 40-year prison term. Officer Pathino's testimony at trial was that he saw the shoot-out while on patrol and, upon turning on the squad car's lights, a Jaguar and Subaru fled in different directions with Pathino chasing the Jaguar. The chase through Newark lasted approximately two minutes at 90 to 100 miles per hour until the Jaguar went airborne crossing railroad tracks and sustained heavy damage. When the Jaguar came to rest, Officer Pathino exited the squad car and ordered the Jaguar's passengers to show their hands at which time the passenger shot Officer Pathino. Officer Gasavage exchanged fire and the vehicle's occupants fled on foot. On appeal in State v. Bridges, the Defendant claimed the trial court erred in denying his request for a Wade hearing with regard to Officer Pathino's photo identification of the Defendant. Although New Jersey took a more broad approach to pre-trial identification in State v. Henderson, 208 N.J. 208 (2011), the Appellate Division determined that, under the circumstances of the case, United States v. Wade, 388, U.S. 218 (1967) did not serve to extend exclusionary principles of pre-trial identification procedures to in-court trial identifications in Defendant's case. The Defendant next raised the point that the sentencing court did not perform an appropriate analysis under State v. Yarbough, 100 N.J. 627 (1985) which requires the court to consider six specific criteria in sentencing. The NJ Appellate Division agreed with the Defendant and remanded the matter to the sentencing court for a full statement of its reasons for imposing consecutive sentences as required under State v. Carey, 168 N.J. 413 (2001). If you are facing murder or other serious charges, you are facing a prison sentence which may last your entire life. You require an experienced criminal defense attorney to protect your rights and ensure that your are provided with the best possible defense. For more information about murder, weapons offenses, theft and other serious criminal offenses in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

10 Year DUI Sentence Upheld Without Alcotest or Blood Sample

John Cumpston was charged with driving under the influence (DUI) (N.J.S.A. 39:4-50), driving while intoxicated (DWI) in a school zone (N.J.S.A. 39:4-50(g)), driving while suspended (N.J.S.A. 39:3-40) reckless driving (N.J.S.A. 39:4-96) and careless driving (39:4-97) after Tenafly police responding to an accident call found him in his Toyota Camry which he had driven into a telephone pole. There were no other occupants in the vehicle and a scrape on Cumpston's face was consistent with the airbag's deployment. Cumpston's speech was slurred, his breath smelled of an alcoholic beverage, he had difficulty balancing when standing, his clothes were disheveled and he was without shoes, he admitted to consuming various alcoholic beverages prior to driving, he did not wake when his blood was drawn in the hospital and urinated on himself while sleeping in the hospital. In State v. Cumpston, the State stipulated to suppression of the blood test upon Defendant's motion but the court refused to suppress the Defendant's pre-arrest statements. At trial in the Tenafly Municipal Court, Judge Bell based the convictions for DUI, DWI within 1000 feet of a school zone, reckless driving and careless driving on the officers' testimony and the totality of the circumstances. The Defendant was sentenced to 180 days in the Bergen County jail and 10-year loss of license as a third time DUI offender with a concurrent 180 day sentence for DWI in a school zone and a 20-year loss of license on that charge. The Defendant was also ordered to addend the Intoxicated Driver Resource Center (IDRC) in association with the DUI and DWI in a school zone charges and fines totaling over $3,000 collectively on all convictions. On appeal before Judge Jerejian in the Superior Court of New Jersey, Bergen County, Cumpston sought to have his admissions at the scene of the crash, with regard to alcohol consumption, suppressed under claim that his Miranda rights were violated, sought to have the convictions reversed and for a reduction in his sentence. The State submitted that the conviction for DUI should merge into DWI in a school zone. Under State v. Kent, 391 N.J. Super. 352 (App. Div. 2007) field sobriety tests are not required for a DWI conviction. Other proofs including "a defendant's demeanor and physical appearance- coupled with proofs as to the cause of intoxication - i.e., the smell of alcohol, and admission of the consumption of alcohol, or a lay opinion of alcohol intoxication." State v. Bealor, 187 N.J. 574, 589 (2006). As to the Defendant's statements at the scene, New Jersey has long held that Miranda warnings are not required prior to field sobriety testing. State v. Ebert, 377 N.J. Super. 1 (App. Div. 2005); State v. Green, 209 N.J. Super. 347, 350 (App. Div. 1986); State v. Weber, 220 N.J. Super. 420, 424 (App. Div. 1987). Further, in Berkemer v. McCarthy, 467 U.S. 420, 442 (1984), the U.S. Supreme Court held that basic on scene questioning and field sobriety tests do not give rise to a "formal arrest" requiring Miranda warnings. The Superior Court of New Jersey, Bergen County, did agree that the Defendant's sentence should be modified to merge the DUI into the DWI in a school zone as well as the fact that, although the Defendant was a third offender under N.J.S.A. 3:4-50(a), he was a first time offender under N.J.S.A. 3:4-50(g). The sentence for DWI in a school zone was modified to 180 days in the Bergen County Jail, $1,000 fine and 10-year loss of license. Driving under the influence of drugs or alcohol in New Jersey bears serious consequences including loss of driving privileges from 7 months for a first event to 10 years for a third or subsequent event, enhanced penalties for driving while intoxicated in a school zone, heavy fines and even jail. If you are facing DUI charges, it is critical you obtain experienced defense counsel to represent you against those charges. For more information about DUI, DWI, DUI in a school zone, controlled dangerous substances (CDS) in a motor vehicle, reckless driving, driving without insurance or other serious municipal court charges in New Jersey visit HeatherDarlinglawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sexual Assault Plea Reversed For Failure To Understand Supervision

William Smullen pled guilty to two counts of second degree sexual assault (N.J.S.A. 2C:14-2c(4))for having sexual intercourse on two separate occasions with a 15 year old female while he was 23 years old. The defendant was sentenced to lifetime supervision under N.J.S.A. 2C:43-6.4 as part of his plea agreement. In addition to federal charges, based on defendant's travel from his home state of New York to have sexual relations with the minor, Smullen was sentenced in New Jersey to 3 years in prison and community supervision for life. Following sentencing in State v. Smullen, the Defedant sought post-conviction relief (PCR) claiming insufficient opportunity to fully understand the scope of community supervision for life in spite of the 10 page document the judge provided him during the plea hearing which summarized lifetime community supervision. Additionally, the Defendant claimed ineffective assistance of counsel as a result of counsel's failure to explain the restrictions Smullen would face in New York under Megan's Law. The PCR court determined that holding the attorney accountable for failure to advise the Defendant of supervision requirements in other states was inappropriate. The Appellate Division held that, as a lifelong resident of New York, the Defendant should have been advised of the applicable provisions of community supervision for live which would be applicable to him as a New York resident and reversed the decision of the PCR court. it was also established at trial that the defense attorney was unaware of the terms of supervision for life in New Jersey as well and asked for additional time to review the provisions but was denied same. The matter was remanded for a determination of whether the Defendant would have pled guilty or exercised his right to a trial if he understood the community supervision provisions of his sentence. If you have been charged with a sex crime a conviction or guilty plea can result in incarceration for a term of years followed by involuntary civil commitment for life. Consequences also include registration as a sex offender and the social stigma you will face forever. It is critical you obtain experienced criminal defense counsel immediately if you are charged with a sex crime. For more information about rape, sexual assault, child molestation, solicitation of a minor or other sex crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Jail Sentence For Driving Without A License

Armando Carreon was sentenced to both a custodial term and fined for driving without a license (N.J.S.A. 39:3-10). Carreon was initially charged with failure to obey a stop sign (N.J.S.A. 39:4-144) and driving without a license and pled guilty to driving without a license. At sentencing, the municipal court judge found this to be Defendant's third offense for the same infraction and imposed 10 days in jail. The Defendant sought post conviction relief and the Law Division rejected the Defendant's argument with regard to the statutory mandate of a fine or incarceration but not both under N.J.S.A. 39:3-10 and Carreon appealed. The NJ Appellate division reversed as the statute allows for "…a fine not exceeding $500 or imprisonment in the county jail for not more than 60 days, but if that person has never been licensed to drive in this State or any other jurisdiction, he shall be subject to a fine of not less than $200 and, in addition, the court shall issue an order to the commission requiring the commission to refuse to issue a license to operate a motor vehicle to the person for a period of not less than 180 days." The appellate judges reasoned that the statute was amended to provide a more harsh penalty for never-licensed drivers and reserving judicial discretion for the harsher option of imprisonment in both situations. Further, in reversing and remanding the matter, the appellate judges held that those sentenced under this statute would be subject to a fine or imprisonment but not both. Driving without a license in NJ carries serious penalties and should not be taken lightly. If you are charged driving without a license in NJ you should seek an experienced attorney immediately to protect your rights. For more information about traffic offenses, driving without a license, DUI, CDS in a motor vehicle or other municipal court charges 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.

Veteran's Day

Remember, today is about remembering and thanking those who fought, and still fight, for OUR freedom every day. You may be enjoying a day off but there are thousands of men and women in the service protecting you who do not have a day off. They, and those who went before them, are in life-threatening conditions on a daily basis for our benefit and deserve our heartfelt thanks and praise. From The Darling Law Firm to all the men and women who have served our country....THANK YOU!

Aggravated Manslaughter Conviction Reversed Due To Error

Dwayne Slaughter was convicted of aggravated manslaughter (N.J.S.A. 2C:11-4), conspiracy (N.J.S.A. 2C:5-2) and aggravated assault (N.J.S.A. 2C:12-1) following the beating of his 79 year old neighbor, Roosevelt Morrow. The Defendant and Pritchard Watts both admitted to police they intended to enter Morrow's residence and rob him. Although the 2 men admitted they conspired to rob Morrow, they each blamed the other for his beating death. The Defendant's live-in girlfriend, Tanisha Day, gave police a taped statement which was presented to the jury at trial. Day's statement attributed an incriminating comment by using the term "he" but never indicated whether "he" implied Watts or Slaughter. However, Day did not testify and Defendant lost his opportunity to cross-examine her about her statement. Watts had taken a plea to first-degree robbery in exchange for his testimony at trial against Slaughter. There was no physical evidence indicating Slaughter was the actor. Slaughter appealed the conviction based on the admission of Day's statement. The NJ Appellate Division found that the admission of Day's statement was error but the error was harmless. The NJ Supreme Court found the error was not harmless as Day's statement could have implied either Watts or Slaughter and vacated the Defendant's conviction and remanded for new trial. If you are facing charges of murder, assault, or conspiracy you are facing severe penalties including as much as life in prison. When confronting criminal charges, it is imperative that you have experienced criminal defense counsel at your side to ensure you are afforded due process and your rights are protected. For more information about murder, assault or conspiracy in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Evidence Of Other Man's Semen Admissible In Sexual Assault Case

Bobby Perry was found guilty of second-degree sexual assault (N.J.S.A. 2C:14-2(c)(1)) and third-degree aggravated assault (N.J.S.A. 2C:12-1(b)(7)). He was sentenced to 8 years with an 85% parole ineligibility period under the No Early Release Act (N.E.R.A., N.J.S.A. 2C:43-7.2(a)) for the aggravated sexual assault and 4 years imprisonment for the aggravated assault. Additionally, Megan's Law (N.J.S.A. 2C:7-1 to -23) was applicable and Perry was sentenced to parole supervision for life. Perry and the victim were drinking together at his residence when he became angry with her and punched her in the mouth and told her to "sit on him". One of the Defendant's roommates returned from a party and he let the victim go. The victim said nothing while the roommate was in the room for some time. After the roommate left the room, the Defendant took the victim downstairs and tried to anally penetrate her, which she resisted, then performed oral sex on her before again trying to orally penetrate her. After this activity, the two returned to a room in the house and sat silently looking at her for some time. The Defendant then asked the victim what she was going to say happened to her face and she agreed to say that someone else had injured her. The victim later went to Maplewood Police Department, accompanied by her ex-boyfriend Mr. Wilkins, and Sergeant Guglielmo, upon seeing her injuries, called for an ambulance. At the hospital, Detective Fuentes of the Union Township Police Department met with the victim to give a statement. On the way to the police station, the victim showed Detective Fuentes where the attack occurred and identified Perry in a photo array. Officers appeared at the residence with a warrant and used a UV light to search for signs of bodily fluids or evidence of clean-up efforts but found nothing in the basement or bathroom and on a later date, the porch where only a small amount of blood was found on the back of a chair. The blood was later matched to the victim and semen was found in her clothing, however, no DNA found matched the Defendant. The Union County Superior Court Judge hearing State v. Perry denied Defendant's application to admit DNA evidence of another man's semen under the Rape Shield Law (N.J.S.A. 2C:14-7) finding that the presence of another man's semen had no bearing on whether consent was given to the Defendant and found the probative value of the evidence was outweighed by the prejudice referencing State v. Ryan, 157 N.J. Super. 121 (App. Div. 1978). Perry appealed on the basis that the evidence of other semen could indicate the possibility that the victim claimed she was raped to appease Wilkins, with whom she was in an on again, off again relationship. The Rape Shield Law was intended to protect the privacy of the victim while also ensuring defendants receive a fair trial. State v. Garron, 177 N.J. 147 (2003) State v. Budis, 125 N.J. 519 (1991) explained that the Rape Shield Law permits prior sexual history to prove another individual is the source of the semen or to negate force. The NJ Appellate Division determined the evidence of another man's semen in the victims clothes was necessary to put on a full defense as required under State v. Cotto, 182 N.J. 316 (2005). The probative value of the evidence, presented for the limited purpose of proving the victim was assaulted by Wilkins and lied to the police about who assaulted her, outweighed the potential prejudice. The appellate division reversed Perry's conviction and remanded the matter with the instruction that, should the evidence of another's semen be again proffered in the case, the trial court conduct a N.J.R.E. 104 hearing to determine admissibility of the evidence. If you have been charged with a sex crime you face severe consequences including prison, societal scorn and inclusion on the sex offender registry and possible involuntary civil commitment. It is critical you obtain experienced defense counsel to immediately begin to review the prosecution's, evidence, speak with witnesses, explore alibis you may have and build a defense. For more information about sexual assault, aggravated sexual assault, criminal sexual contact, endangering the welfare of a minor and other sex crimes visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Drug Distribution Conviction Reversed For Lack Of Probable Cause

Jermaine Wright was charged with possession of controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10a) and possession of CDS with intent to distribute (N.J.S.A. 2C:35-5). Wright's arrest was made by police in Trenton after Ewing Township detectives received a tip from a confidential informant that "Jazzz" was delivering CDS in Trenton in a specific vehicle. Initially the Ewing detectives followed up on the tip, verifying the vehicle and general location provided by the informant, but seeing no activity indicative of drug trade, then Ewing was dispatched to another call and passed the information on to Trenton detectives. Trenton detectives located the vehicle and approached on foot. Later testimony would conflict as to whether the officers guns were drawn as they approached the vehicle. The officer used flashlights to illuminate the occupied vehicle's interior and saw the occupants using a scale to measure a quantity of CDS, which they suspected to be cocaine. As the driver exited the vehicle, a large amount of money could be viewed plainly in the purse she left behind and a bag on the passenger seat was partially open leaving a significant quantity of cocaine in plain view. In State v. Wright, Defendant attempted to suppress the evidence claiming the officers' actions constituted de facto arrest without probable cause but the judge held that the stop was investigative in nature, of limited duration and of little intrusion upon the Defendant's liberty. The judge further held that the evidence initially seized was in plain view and the remainder was seized based on probable cause and under exigent circumstances. In spite of the motion judge's determination that Trenton officers parked their vehicle in a manner to prevent the defendants' exit and swift approach with guns drawn conveying the message they were not free to leave, the judge held the stop was not thereby converted to an arrest requiring probable cause. The Defendant's motion to suppress the CDS was denied and he entered a guilty plea to narcotics related offenses. The NJ Appellate Division referred to State v. Dickey, 152 N.J. 468, 475 (1998) in holding "the temporary detention of individuals during an automobile stop by police, even if only for a brief period and for a limited purpose constitutes a seizure. The Appellate Division also referenced State v. Gibson, ___ N.J. ___, (2014) in finding the judge below inaccurately utilized the reasonable and articulable suspicion standard for a stop rather than the probable cause standard required for an arrest. After a thorough analysis of warrantless seizure cases (State v. Pena-Flores, 198 N.J. 6 (2009), State v. Cooke, 163 N.J. 657 (2000) and State v. Mann, 203 N.J. 328 (2010)) and cases involving levels of police interaction (State v. Nishina, 175 N.J. 502 (2003), Terry v. Ohio, 392 U.S. 1 (1968), State v. Stoval, 170 N.J. 346 (2002), State v. Bernokeits, 423 N.J. Super. 365 (App. Div. 2011)) the appellate judges looked to further considerations including the duration of the stop, reasonableness, degree of the intrusion and the State's interest in the welfare of the public. The Appellate Division further reasoned that a reasonable articulable suspicion was required in this case but there were no particularized facts justifying the seizure. In fact, Trenton detectives testified they observed nothing giving rise to suspicion and approached the vehicle solely on the limited information provided by the Ewing Township detectives. The appellate division reasoned that the seizure of Wright was illegal as it was not supported by reasonable and articulable suspicion. Therefore, pursuant to State v. Smith, 155 N.J. 83 (1998), the appellate division reasoned the evidence obtained from the unlawful seizure must be suppressed and reversed the decision of the court below. Drug distribution charges are met with harsh penalties due to the public interest in deterrence. If you are facing charges for drug distribution or possession, there are multiple factors which may affect the ultimate outcome and an experienced criminal defense attorney will know how to protect your rights. For more information regarding drug distribution, possession, possession with intent to distribute or controlled dangerous substances (CDS) visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

DWI Acquittal When State Failed To Prove Operation Of Vehicle

Wardell Harvey was convicted of driving while intoxicated (DWI) contrary to N.J.S.A. 39:4-50. At sentencing, he was sentenced as a 3rd offender including jail for 180 days, 10 year loss of license, required an interlock device on his vehicle for 1 year following restoration of his driving privileges and fines. At his municipal court trial, the Defendant testified that he procured five 24oz cans of beer on the way to his doctor where he was to learn whether he required back surgery. He was stopped by Officer Clerico of the Somers Point Police Department on the way to his doctor for speeding and an illegal turn. The officer further testified that, during the motor vehicle stop on the way to the doctor's office, he detected no odor of an alcoholic beverage when speaking with Harvey. Upon arrival at the doctor's office, Harvey consumed less than 2 cans of beer in the parking lot while seated in his vehicle. Following his appointment, according to the defendant, he was anticipating the arrival of a Ms. Bowen who worked in a nearby building and to whom the vehicle belonged as she would be driving him home. Prior to his returning to the vehicle, after receiving a call from someone in the doctor's office about an intoxicated patient preparing to leave the office, police stopped Harvey to question him about driving under the influence. Officer Cunningham smelled alcohol on the Defendant's breath, observed an open beer in the cup holder of the truck Harvey drove and found the keys in the truck's ignition. Harvey admitted to consuming alcohol but denied any wrongdoing. Both sides believed that State v. Snyder, 337 N.J. Super 59, (App. Div. 2001) regarding post-operation consumption of alcohol was the controlling case. The municipal court judge decided the State had met its burden of proof as to evidence of operation in a preliminary Rule 104 Hearing. Ultimately the Defendant pled with the admission of consumption of alcohol but without admission of operation. In State v. Harvey, the Law Division judge, on trial de novo, held that the evidence was insufficient to support a conviction with regard to operation prior to the doctor's appointment but sufficient to support a conviction based on his intent to drive following his doctor's appointment under State v. Mulcahy, 107 N.J. 467 (1987). On appeal, it was held that the Rule 104 hearing was inappropriate and testimony elicited therein violated the hearsay rules. Additionally, the Appellate Division held that, under Mulcahy, Harvey could not be required to submit to Alcotest testing based on the belief that "[he would] operate a motor vehicle at some time in the near future." Finally, the State changing its argument from operation prior to the doctor's appointment in municipal court to constructive operation after the doctor's visit in the Law Division was fundamentally unfair and that "appellate courts affirm or reverse judgments and orders, not reasons" Isko v. Planning Bd. of the Twp. of Livingston, 51 N.J. 162, 175 (1968). The NJ Appellate Division reversed Harvey's conviction for driving under the influence (DUI) and remanded the matter to the Law Division for a judgment of acquittal. DWI is a very serious offense with substantial consequences including jail and loss of driving privileges which may result in loss of your job and other consequences. If you are facing DUI charges, you should obtain an experienced DUI defense attorney immediately. For more information about DUI, Driving While Intoxicated (DWI), underage DUI, drug DUI, controlled dangerous substance (CDS) in a motor vehicle or other serious driving infractions in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI Defendants Have Right To Speedy Trial As Long As It Pleases The Court

Although Courts frequently force litigants into trials, especially driving under the influence (DUI) trials, for which their counsel is unprepared as a result of the state’s delay in providing discovery, frustration by repeated provision of incomplete discovery and most recently the inability to obtain discovery of full Alcotest records which are necessary to the preparation of a complete defense, the New Jersey Supreme Court ruled in State v. Cahill that speedy trial issues shall be decided on a case by case basis. On appeal, the NJ Superior Court Judge cited to Barker v. Wingo, decided in 1972, for the factors determining whether defendant’s right to a speedy trial was violated. The factors are: (1) length of the delay; (2) reason for the delay; (3) whether there was prejudice to defendant or the state as a result of the delay; and (4) whether the defendant asserted the right to a speedy trial at any time prior to the trial of the matter. The Superior Court held that the defendant, who waited a full 2 years from the date DUI charges were filed against him until he received a notice of a trial date in 2010, was deprived of his right to a speedy trial by the municipal court’s refusal to grant his motion to dismiss the charges. The Superior Court Judge’s decision was upheld by both the NJ Appellate Division and the NJ Supreme Court. DUI/DWI in NJ will have a serious impact on your life and can have significant implications in related matters such as later personal injury or vehicular manslaughter charges. If you are charged with DUI in NJ you should seek an experienced attorney immediately to protect your rights. For more information on 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 in no way intended to replace the advice of an attorney regarding your specific matter.

Murder Conviction Cannot Stand on Cumulative Trial Errors

Jahnell Weaver and Khalil Bryant were in attendance at a graduation party in Camden, NJ where someone pulled a gun and fired 5 shots killing Edward Williams and wounding Amyr Hill. Although only one individual could have fired the gun, both Hill and Weaver were implicated by others at the party. Jahnell Weaver and Khalil Bryant were juveniles but both were charged as adults with first-degree murder (N.J.S.A. 2C:11-3(a)(1)(2)); first-degree attempted murder (N.J.S.A. 2C:5-1 and 2C:11-3); second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)); third-degree assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)); second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)); third-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(b)); and third-degree endangering an injured victim (N.J.S.A. 2C:12-1.2). At trial, the only significant dispute was weather Weaver or Bryant was the shooter. Both Weaver and Bryant were seen with guns at the party. Hill identified Bryant as the shooter then changed his testimony while other witnesses offered conflicting testimony. Weaver offered that Bryant later used the same weapon in a shooting as a defense and Weaver moved for a separate trial. The court denied Weaver’s application to admit other crimes evidence regarding Bryant’s shooting of another individual shortly after the incident in question due to the substantial prejudice it would cause against Bryant as well as denying Weaver’s request for a separate trial. The State was able to admit Bryant’s statement that he received the gun immediately after the shooting in question. However, because Bryant did not testify, Weaver did not have the opportunity to cross-examine him with regard to the statement. Lamike Goffney, an eyewitness, saw one of the men fleeing the scene hand the gun to another man fleeing the scene and other evidence in the trial led the jury to the conclusion that Bryant then received the weapon from Weaver. Weaver was ultimately convicted and appealed. After the NJ Appellate Division upheld the decision of the trial court, State v. Weaver was heard by the NJ Supreme Court. The NJ Supreme Court reversed the decision of the Appellate Division and remanded the matter for a new trial based on the potential prejudice to Weaver as a result of the cumulative errors in denying his request for a separate trial, refusing to allow other crimes evidence and allowing Bryant’s statement to enter without cross-examination. The penalty for murder is severe including 30 years to life in prison. If you are facing homicide charges, you need experienced criminal defense counsel to protect your rights. For more information about murder, homicide, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, assault, assault with a deadly weapon or other serious crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

180 Days In Jail For Driving While Suspended For DUI

James French had been convicted of 9 Driving Under the Influence (DUI) events prior to being stopped by police in Warren County, NJ who observed him to be driving erratically and to have an inoperable brake light on his vehicle. He was sentenced, by Warren County Superior Court Judge Ann Bartlett, to 90 days in jail followed by 90 days in an inpatient treatment facility. The Prosecutor appealed French's sentence as not meeting the requirements of the applicable statute. In 2011, the NJ State Legislature passed new legislation, N.J.S.A. 2C:40-26(b), directed at driving while suspended for DUI. The statute was drafted by the legislature to punish those driving while suspended for multiple DUIs. N.J.S.A. 2C:40-26(b) makes driving while suspended for a second or subsequent DUI or refusal to submit to chemical breath tests a 4th degree criminal offense and requires a 180 day jail sentence with no possibility of parole. Under DUI Statute, N.J.S.A. 39:4-50, a 3rd or subsequent DUI is punished by a minimum 180 days in jail, 90 of which may be served in an inpatient rehabilitation facility. In State v. French, the NJ Appellate Division decided that the legislative intent in drafting N.J.S.A. 2C:40-26(b) was to levy a higher penalty on those who would continue to drive while suspended for DUI. In reversing the decision of the Warren County Superior Court Judge, the NJ Appellate Division determined that the statute plainly includes a 180 day jail sentence without eligibility for parole and makes no provision for inpatient rehabilitation. DUI is a very serious offense with substantial consequences including jail and loss of driving privileges which may result in loss of your job and other consequences. If you are facing DUI charges, you should obtain an experienced DUI defense attorney immediately. For more information about DUI, Driving While Intoxicated (DWI), underage DUI, drug DUI, controlled dangerous substance (CDS) in a motor vehicle or other serious driving infractions in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Change To Spousal Privilege Following Drug Distribution Case?

Yolanda Terry, Teron Savoy and multiple others were charged with conspiracy to manufacture and possess with intent to distribute as well as distribution of cocaine and heroin (N.J.S.A. 2C:5-2, 2C:35-5a and 2C:35-5b(1)). Teron Savoy and his wife, Yolanda Terry, were part of an alleged drug manufacturing and trafficking network along with approximately 20 others. Savoy was also charged as a leader of a drug trafficking network (N.J.S.A. 2C:35-3) and possession with intent to distribute heroin (N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3). As a result of their observations of Savoy and others including Terry who purportedly worked under Savoy, the State obtained a warrant to intercept communications of Savoy and others. In State v. Yolanda Terry, the spousal communication privilege was determined to protect communications between husband and wife even in the event that such communications are in furtherance of ongoing or future criminal activity. The NJ Supreme Court, in upholding the privilege and suppressing communications intercepted by the State through a wiretap of Yolanda Terry's phone, did make clear that upholding the privilege in the face of criminal activity was likely contrary to the Legislative intent. Although communications were overheard and therefore would be disclosed by the State as a third party they do not lose their privileged status according to N.J.S.A. 2A:156-11, a provision of the NJ Wiretapping and Electronic Surveillance Control Act (N.J.S.A. 2A:156A-1 to -37). In rendering its unanimous opinion the NJ Supreme Court held that although safeguarded under current legislation, the marital privilege is intended to encourage communication between spouses with the goal of harmonious marriages and is not intended to further spouses engaged in joint criminal enterprise. Also included in the opinion of the Court was the fact that multiple other privileges are set aside under exception when ongoing or future criminal activity is furthered by said privileges. An example included in the opinion of the Court was Matthews v. Hoagland, 48 N.J. Eq. 455, 465-70 (Ch. 1891) where the "crime-fraud exception to the attorney-client privilege was recognized in New Jersey common law in the case that first acknowledged the privilege itself." As a result of this case, the NJ Supreme Court petitioned the Legislature to modify New Jersey Rule of Evidence 509 to create an exception when the marital privilege serves to further criminal acts. If you have been charged with drug related crimes or were charged with criminal activity as a result of a wiretap, you should obtain experienced criminal defense counsel immediately. For more information about controlled dangerous substances (CDS) including possession, manufacturing, distribution or possession with the intent to distribute, CDS in a motor vehicle or driving under the influence (DUI) as a result of ingesting CDS visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Attempted Assault Plea Reversed For Lack of Factual Basis

Lee Travers pled guilty to second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)) and second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)). Travers appealed his convictions and his sentence of 8 years subject to an 85 percent parole disqualifier under the No Early Release Act (NERA)(N.J.S.A. 2C:43-7.2). Police discovered a loaded gun in Travers car after receiving a call that he pointed a gun at his wife in front of their children, threatened to kill her and then pulled the trigger multiple times while Travers was under the influence. Although the gun found in Traver's car was older and had problems it did fire when examined by the State's expert and the defense expert never had opportunity to examine the gun as it had been mistakenly destroyed by the State. In State v. Travers, the NJ Appellate Court heard Defendant's appeal based on his provision of a factual basis which maintained that he did not have the intent to cause serious bodily injury to his wife and merely said what he was told to say in order to enter into the plea. The plea transcript included Travers' statement "[w]hen she said don't kill me, I pulled it out and I showed it that it didn't work and wasn't real." After reading the transcript of the factual basis, the NJ Appellate Division did find the factual basis insufficient to establish the specific intent necessary to obtain a conviction for attempted aggravated assault as it was not clear whether Travers believed the gun to be operable at the time of the incident. Pursuant to State v. Sainz, 107 N.J. 283, 293 (1987), a Defendant must set forth sufficient facts constituting the essential elements of the crime. Attempted aggravated assault requires the purposeful attempt to cause serious bodily injury (N.J.S.A. 2C:5-1(a)(1)). The Appellate Division also quoted State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986), "one cannot logically attempt to cause a particular result unless causing that result is one's 'conscious object'. The Appellate Division took no position as to Travers' belief that the gun was operable but only as to the insufficient factual basis when it reversed and remanded the matter. Assault and attempted assault charges are very serious and bear severe consequences. 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, illegal possession of a handgun, 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.

After Gun Is Discharged A Warrantless Search Is Upheld Over Objection of Resident

Michael Lamb fired a handgun at others on a public street. Sometime later police found his vehicle in front of the trailer home in which he resided with his family. In State v. Lamb, the NJ Supreme Court recently decided whether a warrantless search could be upheld when one party at the scene consents after another strongly objecting party has been removed from the scene by police. Upon seeing the police, Lamb's step-father, Steven Marcus, immediately advised them they were not permitted upon his property. Police then proceeded to remove Lamb's step-father from the scene. Thereafter, they were able to coax Lamb from the residence and he was arrested. Police then sought consent to enter the trailer home and Lamb's mother agreed. Within Lamb's bedroom a box containing a handgun was located and used against him at trial. The court looked at multiple factors in upholding the warrantless search over the initial objections of Lamb's step-father. Factors included the proximity in time to the shots fired, the fact that the individual refusing consent was no longer present and the eventual consent of Lamb's mother. Countervailing factors including the initial objection of Marcus, the fact that Lamb's removal from the residence also removed the likelihood of danger from further shots fired and the ability of police to obtain a warrant did not serve to render the search invalid. In another case decided at the same time, the NJ Supreme Court held a warrantless search valid when consent was obtained from a homeowner to search the locked room of a relative who resided in the home but was being detained nearby. In State v. Coles, the fact that the police had detained Byseem Coles nearby was a substantial factor in holding the search to be invalid although his aunt had granted consent to search his room. In spite of the ruling in Coles, where the defendant was being detained nearby while permission was sought from Coles' aunt, the court upheld the search in Lamb even though Marcus, who plainly and vehemently objected to the search, was removed from the scene by police. If you are facing charges for weapons offenses or believe that evidence against you was obtained illegally, you should obtain experienced criminal defense counsel immediately. For more information about use or possession of a weapon for an unlawful purpose, possession of a handgun without a permit, unlawful possession of a weapon, use or possession of a weapon in the commission in the commission of a crime or other criminal charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Rap Lyrics Are Not Evidence Of Prior Crimes

Vonte Skinner was charged with attempted murder (N.J.S.A. 2C:5-1a(3), 2C:11-3a(1)); aggravated assault resulting in serious bodily injury (N.J.S.A. 2C:12-1b(1)); and aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1b(2)); unlawful possession of a deadly weapon (N.J.S.A. 2C:39-5); and possession of a weapon with an unlawful purpose (N.J.S.A. 2C:39-4a) and convicted of attempted murder (N.J.S.A. 2C:5-1a(3), 2C:11-3a(1)); aggravated assault resulting in serious bodily injury (N.J.S.A. 2C:12-1b(1)); and aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1b(2)). Skinner received an extended term of 30 years in prison and subject to certain parole ineligibility and supervision under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2). Skinner’s case arose as a result of the 2005 shooting of Lamont Peterson multiple times at close range with a handgun. Evidence at the scene, including a cell phone belonging to Skinner, led to his arrest. During Skinner’s arrest, while driving someone else’s vehicle, his rap lyrics were recovered on the back seat of the vehicle. Peterson survived and advised the police that Peterson and Skinner both sold drugs for Brandon C. Rothwell. After Skinner joined the team as the third man, Peterson’s profits fell and he began keeping some of Rothwell’s money. Peterson and Skinner both testified that on the night of the shooting they had been in cell phone contact multiple times to arrange a meeting during which Skinner was to buy cocaine from Peterson. When Peterson arrived to meet Skinner, Rothwell was with Skinner. Peterson remembered seeking Skinner and the gun but no other details. Skinner testified that just as Peterson was about to give him the drugs he heard a gunshot and he and Peterson both ran off in different directions. Both sides offered witnesses at trial giving conflicting testimony. The State’s main evidence was the Defendant’s rap lyrics. The jury was not advised that the lyrics were written over several years but did hear an extensive portion of the lyrics and was made aware that the lyrics were in the first person view of a narrator named “Threat” which is a name Skinner has tattooed on his arm. The lyrics described multiple violent acts by “Threat”. The matter was appealed by the Defendant based in part on the reading of Skinner’s rap lyrics to jurors by the prosecution for the purpose of establishing motive and intent on the part of Skinner. The Defendant claimed the lyrics were not properly authenticated and inadmissible under N.J.R.E. 404(b) due to substantial prejudice to defendant outweighing their probative value. The NJ Appellate Division cited State v. Crumb, 307 N.J. Super. 204 (App. Div. 1997) and State v. Koskovich, 168 NJ. 448 (2001) which held that creative writing is merely expressive and does not constitute bad acts themselves and therefore writing comes within N.J.R.E. 404(b). The NJ Appellate Division determined the reading of the lyrics to be prejudicial to Skinner and prohibited by N.J.R.E. 404(b). The NJ Supreme Court heard State v. Skinner and rendered its decision on August 4, 2014. The Justices found that there was no real connection between the lyrics and the murder other than to inaccurately portray his depiction of street violence to establish Defendant’s motive and intent and upheld the decision of the NJ Appellate Division that the lyrics were highly prejudicial and of minimal probative value. The NJ Supreme Court heard the State’s argument that, under Joynes v. State, 797 A.2d 673, 677 (Del. 2002) that the act of creating rap lyrics is not, in and of itself, a “bad act” and should be governed under that standard of relevance under N.J.R.E. 401. The Court disagreed reasoning that N.J.R.E.404(b) is to protect a defendant from evidence which proves little while doing substantial harm. The Court’s primary analysis of admissibility under N.J.R.E. 404(b) was analysis of the 4 prongs of State v. Cofield, 127 N.J. 328, 336 (1992): (1) that the other crime, wrong or bad act evidence pertains to some material issue in dispute in the instant matter; (2) the other crime is similar in kind and reasonably close in time to the offense charged ; (3) proof the evidence of the other crime must be clear and convincing; and (4) any probative value is not outweighed by prejudice. If you are charged with a crime, there are strict limits to evidence which the State may use against you in making its case. To protect your freedom and rights if you are charged with any violent crime, you should consult with experienced criminal defense counsel immediately. For more information about murder, sexual assault, drugs, weapons charges or 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.

Investigation of Newark Police Leads To Updated Procedures

After a multi-year investigation of the Newark Police Department by federal prosecutors, Newark Mayor Ras Baraka has entered into an agreement to install an independent monitor of the Newark Police Department and establish procedures designed to restore the public trust in the police. The investigation was prompted, in part, by the NJ chapter of the American Civil Liberties Union (ACLU) making accusations of long-term misconduct by Newark Police including death in custody, excessive force, false arrest, planting evidence, improper internal affairs procedures, unlawful search and other unconstitutional actions. The U.S. Department of Justice reported findings including excessive force and lack of adherence to the constitution in carrying out duties by officers. In addition to the independent monitor, changes will include cameras in patrol cars and on the person of certain officers, improved training and improved internal affairs procedures. This change comes at a time when random gun violence in Newark has been the frequent topic of media reports bringing the feasibility of implementation into question. For more information about search and seizure, probable cause, guns, drugs or other 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.

Sex Offender's Have Right to Self-Representation In Civil Commitment Proceedings

Although civil commitment proceedings for sex offenders who have completed their prison sentences are civil rather than criminal in nature, the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27 to -27.38, dictates that counsel will be provided for such hearings. D.Y. is a 52 year old male with a history of sexual assaults against minors. In 1986, D.Y. was indicted for first-degree sexual assault (N.J.S.A. 2C:14-2(a)(1)); second-degree sexual assault (N.J.S.A. 2C:14-2(b)) and third-degree endangering the welfare of a minor (N.J.S.A. 2C:24-4(a)) based on allegations by D.Y.’s 12 year old nephew, C.Y., against D.Y. Ultimately D.Y. received a 5 year sentence in exchange for a plea to second-degree sexual assault against C.Y. In 1994, after his release, D.Y. befriended 12 year old A.B. who later alleged D.Y. had sexually abused him by engaging in touching, oral and anal sex and the display of child pornography to A.B. by D.Y. as well as videotaping sexual acts between A.B. and D.Y. As a result of A.B.’s allegations, D.Y. was charged with first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(1)), second-degree sexual contact (N.J.S.A. 2C:14-2(b)), and third-degree impairing the morals of a child (N.J.S.A. 2C:24-4(a)). Upon entering a guilty plea to first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(1)) in 1999 he received an 18 year prison sentence with a 6 year period of parole ineligibility at the Adult Diagnostic Treatment Center at Avenel (ADTC). Additionally, charges were levied by federal authorities and D.Y. was sentenced to 137 months of incarceration. In 2008, D.Y. completed his period of incarceration and a decision as to the civil commitment of D.Y. was required in order to protect the public if D.Y. was still considered a danger to children. In In the Matter of Civil Commitment of D.Y., 426, N.J. Super. 436 (App. Div. 2012), ___ N.J. ___(2014) the N.J. Supreme Court overturned the Appellate Division’s ruling and upheld D.Y.’s right to represent himself at his civil commitment hearing, as long as standby counsel was available at all times to facilitate as necessary for D.Y. The ruling was based on the long-standing right to self-representation dating back to 13th century English law. Although the right to self-representation exists, Justice Patterson writing for the Court included that self-representation “seldom proves to be a sound strategic choice.” If you are facing charges for sex offenses, you should obtain experienced criminal defense counsel immediately. For more information about sexual assault, rape, statutory rape, endangering the welfare of a minor, child pornography or 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.

Robbery Suspects Apprehended By Police GPS Use Without Warrant

US v. Katzin, 732 F. 3d 187 (2013), involved the warrantless placing of a GPS tracking device by police on the vehicle of brothers suspected in the robbery of multiple Rite Aid pharmacies in New Jersey, Delaware and Maryland. Harry Katzin and his van were seen in the proximity of several of the pharmacies where the robberies took place. Using the GPS device, police tracked the Katzin brothers van as they drove to a Rite-Aid where a robbery took place then stopped them shortly thereafter. Evidence gathered during the traffic stop, which resulted from the use of the GPS device, led to their arrest. The device was installed on December 14, 2012 and the Katzins were apprehended on December 16, 2012, limiting the use to approximately 48 hours. In 2011, the U.S. Supreme Court decided Davis v. United States, 131 S. Ct. 2914 (2011), 564 U.S. ___ (2011) holding that evidence discovered while police were conducting searches in good faith reliance on legalities at the time of the search. In U.S. v. Jones, 132 S. Ct. 945, 565 U.S. ___ (2012), the U.S. Supreme Court held that attaching a GPS device to a vehicle constituted trespass and therefore required a warrant but never addressed whether the warrantless tracking utilizing the GPS device was unreasonable. Justice Steven Breyer's comments during Jones likened the ability of police to monitor individuals 24 hours per day at will using GPS devices to George Orwell's novel 1984. In Katzin, the brothers' suppression motion was granted by a District Judge hearing the matter and government appealed to the Third Circuit. The U.S. Court of Appeals for the Third Circuit that heard arguments in the case held that any evidence obtained through the use of the GPS tracking device must be suppressed. The prosecution maintained that, with probable cause to believe the vehicle is involved in criminal activity, no warrant should be required as the Fourth Amendment requires either a warrant or probable cause. The prosecution further argued that while attached to the vehicle, the device provided no information beyond what could be observed by simple visual surveillance. The ACLU argued that Jones found the original attachment of the GPS device to require a warrant, without consideration of whether limiting the time of the tracking would affect the need for a warrant. The ACLU further argued that the ease and cost-effectiveness of using a GPS device will render law enforcement likely to track individuals even where it there is no reasonableness. Without the requirement of a warrant, police could use GPS devices to gather information and use that information to establish probable cause. Ultimately, the U.S. Court of Appeals for the Third Circuit held that law enforcement officers must have a valid warrant before installing a GPS tracking device on a suspect's vehicle. If you are facing charges of robbery, the penalties can be severe and you should obtain experienced criminal defense counsel immediately. For further information regarding robbery, warrantless searches, burglary or other serious criminal offenses in New Jersey, visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Expungement Of A Crime Or A Conviction?

Criminal records may be expunged when a petitioner "has been convicted of a crime…and who has not been convicted of any prior or subsequent crime…." N.J.S.A. 2C:52-2(a) G.P.B. was sentenced under a single conviction to a guilty plea of one count of third-degree conspiracy (N.J.S.A. 2C:5-2) and three counts of third-degree making gifts to public servants (N.J.S.A. 2C:27-6(b)). 10 years later, a Warren County trial judge granted the petitioner's expungement based on the "crime-spree" principle of In re Fontana, 146 N.J. Super. 264, 267 (App.Div. 1976) and the more recent case of In re Criminal Records of R.Z., 429 N.J. Super. 295 (App. Div. 2013), wherein a previous expungement statute permitted expungement of crimes committed so closely in proximity as to be considered part of a single event. In the Matter of the Expungement of G.P.B., the State appealed and the New Jersey Appellate Division reversed based on the holding in In re Ross, 400 N.J. Super. 117 (App. Div. 2008) wherein the court found the statutory language of N.J.S.A. 2C:52-2(a) to be clear as to whether expungement may be granted in the event of a single conviction or single crime. "The words 'prior' and 'subsequent' do not modify the word 'conviction' but instead modify the term 'crime'". Ross, supra, 400 N.J. Super. at 122. Notably, the Supreme Court has granted certification in In re Expungement of Petition of J.S. wherein petitioner was denied expungement of drug crimes committed within a five day period. It should be noted that this blog has addressed only one portion of the expungement statute and other criteria apply. If you are considering seeking expungement of prior criminal records, you should consult with an experienced criminal defense attorney to determine whether you may be eligible for expungement. For further information about expungement of a criminal record, conspiracy, gifts to public servants or other crimes in New Jersey, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Mandatory And Discretionary Extended Terms In Drug Case?

James Robinson sold 3 bags of crack cocaine to an undercover officer in 2003 and was indicted for third-degree possession of a controlled dangerous substance (CDS) with intent to distribute (N.J.S.A. 2C:35-5(b)(3)); second-degree possession of CDS with intent to distribute within 500 feet of public property (N.J.S.A. 2C:35-7.1); third-degree possession of CDS (N.J.S.A. 2C:35-10(a)(1)); and third-degree possession of CDS with intent to distribute (N.J.S.A. 2C:35-5(b)(3)). Due to Robinson's prior criminal history, including convictions for distribution of CDS in a school zone, receiving stolen property, eluding a police officer, burglary, and criminal restraint exposing another to serious bodily injury, the trial court imposed a discretionary extended term sentence of 15 years imprisonment with a 3 year period of parole ineligibility, a mandatory extended term of 15 years with a 5 year period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(f) as a repeat drug offender under N.J.S.A. 2C:44-3(a) in State v. Robinson. Defendant was also sentenced to a mandatory extended term of 7 years imprisonment with a 3 year period of parole ineligibility. Defendant appealed the sentence claiming that a court may not impose a discretionary extended term when a mandatory extended term has been imposed in the same proceeding. The appellate division affirmed the decision of the trial court. The NJ Supreme Court then reversed the decision after consideration of the Legislative intent in providing for extended terms for certain repeat offenders. Under the Model Penal Code (MPC), sentencing uniformity was a consideration in conjunction with affording courts the flexibility to achieve deterrence as needed. N.J.S.A. 2C:44-5(a)(2) limits the number of extended terms which a court may impose in a sentencing, however, multiple mandatory extended terms may be imposed in a single proceeding (State v. Connell, 208 N.J. Super. 688 (App. Div. 1986)). The court then turned to the holding of State v. Hudson, 209 N.J. 513 (2012) and N.J.S.A. 2C:44-5(a)(2) to be a bar to the addition of a discretionary extended term when the trial court is required to impose a mandatory extended term on another offense if both are in the same proceeding. If you are facing charges for possession or distribution you will be facing severe penalties and should seek experienced criminal defense counsel immediately. For more information about distribution of a controlled dangerous substance, possession of CDS, possession with intent to distribute, distribution within 500 feet of a public place, distribution in a school zone, prescription drug matters or other serious drug offenses in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Gun And Drugs Discovered Due To Defendant's Suspicious Behavior

Ramier Dunbar was indicted for second degree possession of a weapon (N.J.S.A. 2C:39-5(b)); second degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)); fourth degree possession of a hollow-point bullet (N.J.S.A. 2C:39-3(f)); third degree resisting arrest (N.J.S.A. 2C:29-2(a)); and fourth degree obstruction of the administration of law (N.J.S.A. 2C:29-1). State v. Dunbar arose from a custodial stop for which the police claimed to have probable cause. In Jersey City officers were dispatched to a report of gunshots fired. Responding officers arrived within seconds to find a group of approximately 30 individuals. They immediately noticed one individual they claimed to appear overly nervous within the screaming crowd. While maintaining constant visual contact with a marked patrol car, Dunbar disappeared down an alley momentarily then re-emerged and began walking away from the scene. Officers followed him in the patrol car and attempted to question him about the shots fired but the defendant ignored officers and, by their account, appeared more nervous. Officers ordered the Defendant to stop at which point he began to run. While running from the police, the Defendant pulled a handgun from his waistband and threw it. Officers apprehended the Defendant shortly and also discovered a bag of marijuana on his person. At trial, the judge granted Defendant’s motion to suppress evidence seized during his arrest. The NJ Appellate Division reversed the trial court. In rendering the decision, the Appellate Division differentiated Dunbar from State v. Williams, 410 N.J. Super. 549 (App. Div. 2009) wherein police involved in community policing stopped an individual who fled the area upon sight of the police, ignored their commands to stop, discarded contraband upon apprehension and the evidence was suppressed as the officers actions were not founded on reasonable suspicion in the eyes of the court. In State v. DeLorenzo, 166 N.J. Super. 483 (App. Div. 1979) the court held that an investigatory stop is not reasonable based on simple nervousness. Unlike Williams, the prosecution in Dunbar argued that, based on the facts, the officers formed reasonable and articulable suspicion that Defendant had committed a crime, the gun was abandoned property lawfully recovered after the Defendant discarded it and the marijuana was seized incident to arrest. Also, unlike DeLorenzo, Dunbar’s nervousness was accompanied by flight while constantly observing police and in the midst of an excited crowd immediately after gun shots were reported. The Appellate Division found the stop and seizure to fall within Terry v. Ohio, 392 U.S. 1 (1968) as an exception to the Fourth Amendment of the U.S. Constitution wherein a warrant is required in matters of search and seizure. The totality of “shots fired”, a “chaotic scene” and the defendant’s behavior were enough to enable the Appellate Judges to find the officers had a reasonable basis for their actions. If you are facing weapons charges or drug charges you are subject to harsh penalties including lengthy incarceration and substantial fines. You should seek the assistance of an experienced criminal defense attorney immediately to protect your rights. For more information regarding weapons possession, use of a weapon for an improper purpose, illegal weapons, robbery, possession of controlled dangerous substances (CDS) or other serious criminal offenses visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Driving While Suspended For DUI Without the DUI?

In deciding State v. Suzanne Sylvester, the court held that driving while suspended for a second or subsequent driving under the influence (DUI) charge under N.J.S.A. 2C:40-26b is a 4th degree crime even in the event the underlying DUI suspension is later vacated. Sylvester was convicted in the Somerset County Superior Court of N.J.S.A. 2C:40-26b and sentenced to a 3 year probationary term with a mandatory minimum incarceration of 180 days without parole. Sylvester had been convicted of DUI in 1991, 1992 and in Mendham Municipal Court in 2011. It was during the suspension for the 2011 DUI when the defendant was charged with driving while suspended. Although Sylvester was permitted to rely on a sentencing step-down afforded under State v. Laurick, 120 N.J. 1 (1990) due to the lapse of time between her second and third DUI convictions, the Appellate Division found that Defendant was aware of a valid suspension at the time she drove and therefore the conviction under N.J.S.A. 2C:40-26b was also valid. In upholding the decision of the court below, the NJ Appellate Division relied on the earlier decision in State v. Gandhi, 201 N.J. 161 (2010) wherein the court established that a defendant violating N.J.S.A. 2C:40-26b shall not be entitled to relief from conviction in the event the DUI is later vacated. If you are found guilty of driving while suspended for a second or subsequent DUI, you may be punished under N.J.S.A. 2C:40-26b which bears minimum penalties of 180 days in jail and an additional 1 year loss of license. For more information about driving while suspended for DUI, driving under the influence of alcohol or drugs, controlled dangerous substance (CDS) in a motor vehicle or other serious driving offenses visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI Blood Withdrawal Does Not Require Warrant

In State v. Sekhon, a single car fatal accident took place in which it was believed the defendant was driving under the influence (DUI). A passenger died when the vehicle exited the roadway and crashed. Responding officers detected an odor of alcoholic beverages on the driver, who admitted to having two drinks, but the officers had no opportunity to take breath samples as the driver was taken to the hospital by ambulance from the scene. At the hospital blood was drawn from Sundeep Sekhon without seeking a warrant and without the defendant's consent. Although the defendant's blood alcohol content (BAC) was only .062, the prosecution still intended to utilize the evidence to show defendant was drinking before the accident in the second-degree vehicular homicide case. There is a long history of cases relating to the need to preserve evidence creating exigent circumstances as balanced against the 4th Amendment right to be free from unreasonable searches and seizure. Missouri v. NcNeely _______U.S. ________, ________, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) considered the premise that the speed with which a warrant may be obtained, exigent circumstances may no longer be presumed in DUI matters requiring a blood sample rather than breath sample. In State v. Adkins, 433 N.J. Super. 479 (App. Div. 2013), the Appellate Division held that the exclusionary rule does not require suppression of blood tests taken without a warrant in certain circumstances as long as the motor vehicle stop occurred before McNeely was decided. Adkins requires the that police have probable cause to believe that the driver was under the influence and that the police action in taking the blood samples occurred in good faith reliance on then existing law. Under the guidance of McNeely and Adkins the NJ Appellate Division held that the BAC results from Sekhon need not be suppressed. DUI charges carry serious and lasting consequences. If you are facing DUI charges, you should seek experienced defense counsel immediately to protect your rights. For more information regarding DUI, drug DUI, controlled dangerous substance (CDS) in a motor vehicle, reckless driving or other serious municipal court matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Prior DUI Convictions Enhance Penalty For Refusal In NJ

In the recent case of State v. Frye, the NJ Supreme Court upheld the use of prior Driving Under the Influence (DUI) convictions to enhance the sentence for refusal to submit to chemical breath testing. In Frye, the defendant was convicted to a 10 year loss of license as a result of 2 prior DUIs. Although the court held, in State v. Ciancaglini, 204 N.J. 597 (2011) that a prior refusals to submit to chemical breath testing could not be used to enhance penalties for subsequent DUIs, the Frye court found the logic behind this instant decision to be different. The Court reasoned that, failure to utilize prior DUI convictions to enhance refusal convictions would then leave a strategic opportunity to repeat DUI offenders to obtain a significantly reduced penalty for subsequent offenses by simply refusing to submit to the Alcotest. The chemical breath test refusal statute, N.J.S.A. 39:4-50.4a, does contemplate enhanced sentencing for repeat refusal offenses in a manner which parallels enhancement for repeat DUI offenses bringing the Frye decision in line with the Legislative intent of keeping intoxicated drivers off NJ roads. The Frye decision is not the first of its kind in New Jersey. In re Bergwall, 85 N.J. 382 (1981), decided by the NJ Supreme Court over 30 years ago, held that a prior DUI convictions should be used to enhance suspensions in refusal cases. If you are facing charges of DUI or refusal, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DUI, controlled dangerous substance (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.

Convicted Drug Dealer Is To Have Jail Credits Recalculated

Ramon Wilson entered into a negotiated plea agreement to third-degree possession of a controlled dangerous substance (CDS) (cocaine), with intent to distribute within a school zone (N.J.S.A. 2C:35-7(a)), third-degree possession of a CDS (cocaine) (N.J.S.A. 2C:35-10(a)(1)) and a violation of probation. the State's offer was to recommend concurrent aggregate 5 year prison terms with a 3 year parole ineligibility period as well as dismissal of the remaining charges. Pursuant to the agreement, the remaining charges under the indictment were dismissed including second-degree possession of a CDS with intent to distribute (cocaine) (N.J.S.A. 2C:35-5(a)(1), (b)(2), second-degree possession of a CDS (cocaine) with intent to distribute within 500 feet of a public housing facility, public park or public building (N.J.S.A. 2C:35-7.1) and third-degree burglary (N.J.S.A. 2C:18-2). Wilson, prior to entering into the plea, had filed an unsuccessful suppression motion to suppress drugs seized by the police and appealed the court's denial of the motion. Defendant's appeal with regard to the drugs was grounded in lack of lawful presence of police officers in an apartment when the drugs were discovered. Whitehead, the renter of an apartment known to permit dealers to distribute from his residence in exchange for free narcotics, was encountered by police on a visit to the building regarding a call about drug distribution therein. Upon encountering police, Whitehead advised that he had just returned home to three "crackheads" in his apartment distributing drugs and asked that the police remove the drug dealers from his unit. When police entered the apartment defendant jumped up and ran toward the bathroom and a bag of crack cocaine fell from his lap. Police also recovered 18 grams of crack cocaine from behind the toilet tank in the bathroom into which the defendant attempted to flee. The appellate court, in State v. Wilson, found the denial of defendant's motion to suppress to be grounded in sound legal principles and saw no reason to disturb the finding of the court below. Defendant also sought a recalculation of jail credits for the period of incarcerations between his December 2010 incarceration and August 12, 2011 sentencing. The sentencing court credited the defendant with 257 days of jail credit, however, the appellate division determined that the jail credits were not calculated according to the principles in State v. Hernandez, 208 N.J. 24 (2011) and remanded for recalculation of defendant's jail credits. If you are facing charges of distribution or possession of CDS, you should obtain an experienced criminal defense lawyer immediately. For more information about drug distribution, possession, prescription medication, under the influence, CDS in a motor vehicle, DUI or other drug related matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.