Conditional Dismissal in NJ Municipal Court Effective January 4, 2014

On September 6, 2013, Governor Christie signed into effect A-3598, establishing a Conditional Dismissal program in NJ municipal courts. The law became effective on January 4, 2014 and applies to those convicted of or pleading guilty to disorderly or petty disorderly offenses. The Conditional Discharge in municipal court was previously available only for drug offenders in municipal court pursuant to N.J.S.A. 2C:36A-1. However, those convicted of or pleading guilty to certain greater offenses in the NJ Superior Court were eligible for Pre-Trial Intervention (PTI). Now the playing field for eligible first offenders is level between the courts. Conditional Discharge and PTI are one time programs available to those accused of criminal offenses. Once they are utilized, defendants are ineligible to use them again. Additionally, use of PTI renders you ineligible for Conditional Discharge and the converse is true as well. Also, domestic violence and driving under the influence (DUI) defendants are not eligible for Conditional Dismissal. Although an individual may be eligible for Conditional Dismissal, the court retains discretion as to whether a defendant is admitted based on criteria including the nature of the offense, the interests of the victim, the defendant's history and public interest. This program is a diversionary program wherein defendants are placed on probation for a period of one year wherein certain requirements must be met or the defendant will be expelled from the program and returned to court to face the original charges against them. Additionally, those pleading to or found guilty of other offenses during their probationary term will be expelled from the diversionary program. Although this program helps avoid a criminal record, fingerprinting is required under N.J.S.A. 53:1-15 and there are associated fees as well. Successful completion of the program will not be deemed a conviction on a defendant's criminal record and will not be counted as a first conviction for sentencing purposes in the event of future convictions. However, a Conditional Dismissal will appear on their criminal record and bar eligibility for future diversionary programs. Criminal charges in NJ can have a serious, lasting and detrimental effect on your future. if you are facing criminal charges, whether in municipal or superior court, it is critical you obtain an experienced criminal defense attorney to help resolve your matter. For more information about Conditional Dismissal, Conditional Discharge, Pre-Trial Intervention or 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.

Drug Distribution Penalties Enhanced Under Controlled Substances Act

In order to be eligible for enhanced penalties under the Controlled Substances Act (U.S.C. Section 841(b)(1)(C)), the use of the drug distributed must independently cause the victim's death or seriously bodily injury. In the case of Burrage v. United States, a long-time drug user in poor physical condition died after using heroin purchased from the defendant. On April 14, 2010, Banka began smoking marijuana with a friend and he later crushed and injected oxycodone pills. His wife then purchased heroin for him from Burrage which he used on at least 2 occasions that same night. In the morning of April 15, Banka's wife woke to find him dead. Responding police found heroin, oxycodone, hydrocodone, alprazolam, clonazepam and syringes in the residence. At trial, testimony was presented by medical experts indicating the presence of codiene, alprazolam, clonazepam, oxycodone and herion in Banka's system at the time of death. The experts could not conclusively say Banka would have lived had he not injected the heroin, only that it was a "contributing factor" making the death more likely. The jury convicted Burrage after the judge instructed them that the government need prove only that the heroin contributed to the death. He was sentenced to 20 years in prison under the Controlled Substances Act and the Appellate Court upheld the decision. Burrage appealed to the United States Supreme Court. The Controlled Substances Act includes a "death results" enhanced penalty which subjects drug dealers to increased sentences when someone dies as a result of using drugs the dealer sold them. The US Supreme Court held that drug use as a contributing factor to death was not sufficient to impose the enhanced penalty. The US Supreme Court found that "results from" was not defined in the Act but found it to require proof that "the harm would not have occurred in the absence of…the defendant's conduct." University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___________, 133 S. Ct. 2517 (2013). The Government argued that applying the ordinary meaning to "results from" would protect criminals from liability for their acts. The Supreme Court found this argument to lack merit on the grounds that, even without proof of but-for causation, criminals remain subject to the remaining provisions of U.S.C. Section 841. If you are facing charges for drug distribution, there are multiple components which may affect the ultimate outcome. Although there is often no way to obtain an acquittal in such cases, there is often great disparity in sentencing depending on the interpretation of statutes and factors applied and weighed at the time of sentencing. Drug distribution charges are met with harsh penalties due to the public interest in deterrence and it is critical that you obtain experienced criminal defense counsel to protect you against the charges and penalties. For more information regarding drug distribution, possession and possession with intent to distribute visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

What Is The Harm In Delaying A Final Restraining Order?

When a NJ Superior Court judge made the decision to issue a Final Restraining Order (FRO) in the defendant’s absence in a domestic violence case, the NJ Appellate Court reversed. Due to the substantial ramifications to an individual once an FRO is issued against them for the presumed need for protection by the victim of the alleged domestic violence, the Appellate Court determined that it was a violation of the defendant’s due process rights to prevent him from the opportunity to participate in his defense. The NJ Appellate Division judges held that, when the case was less than one month old and the alleged victim had the benefit of a Temporary Restraining Order (TRO), defendant had retained counsel for the hearing and counsel requested only a brief adjournment and defendant offered a valid physician’s note explaining his failure to appear at the hearing, the trial judge erred in denying defendant’s motion to vacate the FRO. The trial judge, in denying the defendant’s motion to vacate the domestic violence FRO in O.K-H. v. D.H., made a finding on the papers submitted that the defendant and his physician lacked credibility and the defendant was attempting to abuse the criminal justice system. A Final Restraining Order can have severe consequences on your future including the loss of professional licenses or opportunities, the inability to own or possess a firearm and the social stigma associated with the restraints against you. If you are facing an FRO or believe you need the benefit of an FRO against another for your protection, you should consult an experienced criminal defense attorney to ensure your rights are protected. For more information about domestic violence, restraining orders, assault, harassment or other criminal or municipal court matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney in your matter.

Justifiable Need For Handgun Carry Permit

Jonathan Wheeler and George Daudelin were defeated in both the Essex County Superior Court and the NJ Appellate division in their Second Amendment challenges to state regulations relating to permits to carry handguns. New Jersey requires a clear showing of "justifiable need", pursuant to N.J.S.A. 2C:58-4d, in order to obtain a permit to carry a handgun outside of one's personal residence. The "justifiable need" standard has been in existence since 1924 and the judges saw no reason to overturn it in this case. In order to meet the "justifiable need" standard, the applicants needed to show "an urgent necessity…for self-protection stemming from specific threats or previous attacks demonstrating a special danger to the applicant's life that cannot be avoided by other means." In re Preis, 118 N.J. 564, 571 (1990) Although retired police officers are permitted to carry handguns under N.J.S.A. 2C:39-61(1)-(4).1, these retired Newark Fire Department Arson Investigation officers were not permitted to do so and brought a challenge in court. Judge Joseph Cassini III refused to grant permission to the applicants. The Appeals Court held that the presence of handguns in the hands of the public in such a densely populated state bears a risk which far outweighs most rewards. The court considered the balance between the need to protect those with a specific need and the need to protect the general public. Critics of the law believe it is simply intended to appease as it is nearly impossible to meet the criteria for a permit. If you are seeking a carry permit or facing charges stemming from illegal possession of a handgun, it is critical you not undertake these matters without experienced counsel. For more information about handgun carry permits, illegal weapons, possession of a weapon for unlawful purposes or other serious weapons offenses visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Judge Acts As Judge, Jury and Prosecutor in Theft Case

Linden Municipal Court Judge DiLeo denied the requests of Anthony and Wendell Kirkland for appointed public defenders in their theft case and then conducted the trial without a prosecutor present. The judge went so far as to take on the prosecutor's role by undertaking direct examination of the police officers, thereby eliciting the information he felt should be heard, and cross-examining the defendants. The Kirklands were charged with attempting to steal tires from a vehicle. Initially, they sought private counsel then later requested public defenders. The judge found the defendants to have waived their right to counsel. At the trial, the judge invited the Kirklands to participate in cross-examination of the police officers testifying and also to present testimony on their own behalf. The Kirklands presented no testimony or witnesses yet the judge allowed the officers to cross-examine the Kirklands. At the close of this farce, DiLeo found the defendants guilty of theft of moveable property, possession of burglary tools and possession of under 50 grams of marijuana and sentenced them to county jail terms. By the time NJ Superior Court Judge Scott Moynihan heard the Kirklands' appeal, resulting in dismissal of the drug charges and remand to the municipal court for a hearing on the remaining theft charges, the Kirklands had spent 124 days in the Union County jail. This case resulted in a new standard for imposition of punishment on judges for misconduct on the bench. When a reasonable person would find the conduct of the judge to be obviously and seriously wrong, contrary to clearly determined law without question as to interpretation, egregious and made in bad faith or as part of a pattern of error. If you have been accused of a crime, you cannot rely on the legal system to protect your rights. Although the system is designed, on its face, to protect the interests of both the state and the accused, the prosecutors, judges and police officers involved in your case are human and fallible. For more information about theft, burglary, possession of controlled dangerous substances (CDS) or other criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Sex Offender's Confession Inadmissible

Bergen County Superior Court Judge Patrick Roma oversaw a trial in which R.P. was convicted on four counts of 2nd degree sexual assault by sexual penetration of a blood relative between the ages of 16 and 18 (N.J.S.A. 2C:14-2(a)), one count of 4th degree criminal sexual contact (N.J.S.A. 2C:14-3) and one count of 2nd degree endangering the welfare of a child (N.J.S.A. 2C:24-4) for allegedly having sexual contact with R.P.'s own 17 year old daughter, "Jane". R.P. was sentenced to consecutive 8 year terms on two of the counts, with the remaining sentences to be served concurrently. R.P.'s wife, "Vera", was suspicious that R.P. and "Jane" were having a sexual relationship and placed a recording device in the master bedroom of their home and later found a recording of a "very explicit sexual interaction" in which, upon reporting, she verified the voices of "Jane" and R.P. "Jane" advised officers, during her interview, that she and her father were sexually involved and that she participated due to privileges he would afford her including use of a car, later curfew and permission to date. "Vera" later recanted her testimony indicting she was under substantial stress at the time she made the tape and identified the voices and later realized the voices were those of her cousins who had been visiting the residence at the time of the recording. R.P. initially denied the allegations and later confessed in a video and audio interview by police to a consensual sexual relationship indicating they never had intercourse. R.P. challenged the conviction based on the voluntariness of the confession in which one officer was yelling at him and, due to lack of understanding, made statements to protect his daughter. R.P. claimed "Jane" provided false testimony based on R.P. having disciplined her and he also stated the voices on the wife's tape were those of the wife's cousins. The Appellate Division found no impropriety in the two consecutive sentences based on the need to deter such activity. However, in regard to the confessions, they held that, in spite of defense counsel's failure to object to the confession upon the prosecution's entry of the statement into evidence but then calling for a mistrial the following day, it was plain error for the trial judge not to conduct a hearing under NJ Rule of Evidence 104 to determine the voluntariness of the confession. Rule 104 addresses the reliability of statements given during confession in an effort to ensure confessions are given only voluntarily, without duress, compulsion or coercion. Rule 104 also deems confessions under such circumstances are unreliable. The Appellate Division reversed for a new trial requiring the state to prove voluntariness of the confession beyond a reasonable doubt. 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.

African-American Male Wrongfully Charged With Theft From Apple Store Based on Color

Terrell Gray, an African-American male from NJ was arrested for theft when he sought a replacement for his broken iPad in a Berkeley, CA Apple store. Gray was offered a free replacement cracked screen but Apple employees in the store stated the store would not replace the device. Police arrived on the scene and arrested Gray who was placed in a psychiatric hospital overnight. Upon release Gray returned to the store and was arrested, detained for approximately a week without being formally charged then placed in a psychiatric hospital for over a month. Upon release, Gray returned to NJ and visited a doctor regarding mental anguish, emotional distress, paranoia, emotional pain and suffering as well as other mental issues. As a result of Gray's consultation with the doctor in NJ he was committed to Trenton psychiatric hospital for approximately 3 months. Gray is now suing Apple and the City of Berkeley under for violations of 42 U.S.C. Section 1981(Equal Rights Under the Law), 1982 (Property Rights of Citizens) and 1985 (Conspiracy to Interfere With Civil Rights) for discrimination against people of color based on his own treatment and in-store video showing Apple employees disproportionately targeting shoppers based on race, nationality, or ethnicity and confronting them with false accusations of criminal activity, false imprisonment, and other forms of harassment. Gray has also brought a case against the City of Berkeley with assault and battery, false imprisonment, negligent infliction of emotional distress and other charges. If you are facing criminal charges it is critical you obtain an experienced criminal defense attorney immediately to protect your rights and build a defense against the prosecution's case. Although the justice system is designed to protect the innocent and bring just punishment to the guilty to deter others from following suit while also rehabilitating them when necessary there are times when innocent individuals are grouped among the guilty for an assortment of reasons. If this happens it is critical to have someone fighting hard for your good name. For more information about theft, burglary or other criminal issues in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of counsel.

New Brightline Rule For Expungements Involving Prior Juvenile Offenses In NJ

Judges throughout the state have differed for years in their opinions as to how juvenile offenses should be treated when a petitioner seeks expungement of an adult offense. In January 2014, the NJ Supreme Court resolved the matter when Justice Stuart Rabner said there was no clear legislative intent to utilize juvenile offenses to limit expungement of adult offenses. The legislative intent in creating expungement statutes was to permit nonviolent, one-time adult offenders to clear their records of mistakes long past. In the Matter of the Expungement of D.J.B., a now 36 year old man sought to expunge a single adult conviction of burglary. The requisite 10 year waiting period had elapsed and D.J.B. sought to expunge the offense as it was preventing him from better job opportunities and from participation in the community as a little league coach. In denying his petition for expungement, the Somerset County Superior Court cited his prior juvenile offenses the equivalent of third-degree burglary at age 16 and burglary and marijuana possession at age 17 in light of a 1980 legislative amendment to the expungement statute, N.J.S.A. 2C:52-4.1(a), which states "any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult." The NJ Supreme Court decision that juvenile offenses are no bar to expungement of otherwise eligible adult offenses brings finality to that issue and makes it possible for many adults with prior offenses to seal records which have been limiting their opportunities and branding them with social stigma for far too long. If you have been held back by prior offenses or are too embarrassed to seek certain opportunities because of past mistakes, expungement will put an end to these issues. For more information about expungement, burglary, drug possession 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.

First or Second Degree Sexual Assault Conviction Turns On "Severe Personal Injury" To Victim

In 2005, O.M., a 32 year old woman, first disclosed that she was sexually abused by her stepfather, R.P. when she was a child. R.P. was convicted of first-degree aggravated sexual assault by committing an act of sexual penetration with O.M. when she was at least 13 but less than 16 and related to O.M. by affinity (N.J.S.A. 2C:14-2(a)(2)(a)) and defendant stood in loco parentis within O.M.'s residence (N.J.S.A. 2C:14-2(a)(2)(c)); first-degree aggravated sexual assault by commission of an act of sexual penetration with O.M. while using physical force or coercion, and O.M. received severe personal injury (N.J.S.A. 2C:14-2(a)(6)) and second-degree aggravated sexual assault by committing an act of sexual penetration with O.M. while she was at least 16 but less than 18 (N.J.S.A. 2C:14-2(c)(3)). An additional count of first-degree aggravated sexual assault by committing an act of sexual penetration on a minor under thirteen (N.J.S.A. 2C:14-2(a)(1)) was dismissed. Upon conviction, R.P. received two concurrent 18 year prison terms with a 9 year period of parole ineligibility and a concurrent 8 year prison term with a 4 year parole disqualifier. O.M. testified that R.P. began molesting her when she was 12 years old, initially by performing oral sex on her or penetrating her digitally. Later, the abuse by R.P. progressed to sexual intercourse without condoms with physical force over O.M.'s objections. The regular assaults resulted in 2 pregnancies when O.M. was age 16 and the first prior to her attaining age 16. The earlier pregnancy was terminated by abortion and O.M. gave birth to the second. The NJ Appellate Division held that, although substantial time had elapsed there was substantial evidence upon which a determination of guilt could be made. Where the Appellate Division found issue with the trial court's finding was in regard to failure to charge the jury on sexual assault as a lesser-included offense of aggravated sexual assault. In State v. Ramsey, 415, N.J. Super 257, 266 (App.Div. 2010) the court held "improper instructions on material issues are presumed to constitute reversible error" in criminal trials. Pursuant to N.J.S.A. 2C:14-2(a)(6) an act of sexual penetration on another using physical force or coercion in which the victim sustains "severe personal injury" constitutes first-degree aggravated sexual assault. Under N.J.S.A. 2C:14-2(c)(1) an act of sexual penetration on another using physical force or coercion without "severe personal injury" to the victim constitutes second-degree sexual assault. Other than the "severe personal injury" the elements of these two offenses are the same and the trial court's failure to charge the jury on the lesser-included offense is plain error which could have produced an unjust result. No court in New Jersey has held an unwanted pregnancy to constitute severe personal injury and the question of severe personal injury would then be left to a jury on a case by case basis. Commission of a sexual offense can be discovered many years after the incident or incident and can result in substantial and irreparable damage to the reputation and lifestyle of the accused in addition to the deprivation of liberty and rights, registration as a sex offender, loss of employment opportunities, possibility of civil commitment and social stigma. If you are accused of a sex crime it is absolutely imperative that you obtain experienced criminal defense counsel to begin working on your defense immediately. For more information about sex crimes, internet crimes, child pornography, rape, endangering the welfare of a minor 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.