Attack On NJ Gun Law Will Not Be Heard By US Supreme Court

The U.S. Supreme Court will not hear an NRA backed Second Amendment challenge to NJ's "justifiable need" requirement to carry a handgun outside of a personal residence. New Jersey's Handgun Permit Law (N.J.S.A. 2C:58-4) affords substantial discretion to judges and law enforcement personnel in determining who may carry handguns in public. On the heels of District of Columbia v. Heller, 544 U.S. 570 (2008) and McDonald v. Chicago, 130 S. Ct. 3020 (2010), there have been numerous challenges to gun restrictions within various states. Heller struck down the outright ban on handgun ownership in Washington D.C. and McDonald held that the Second Amendment protection used to strike down the D.C. ban in Heller applies to the various states. The NJ challengers were 4 individuals denied carry permits and 2 gun rights groups with several amici, including the NRA, on either side of the issue. The plaintiffs contended that the Second Amendment right to bear arms includes the right to protect oneself outside, not only inside, one's residence. Further they argued that the law's "justifiable need" standard of deciding who is fit to carry a gun and who is not affords broad discretion in law enforcement and judges to select which individuals will and will not be able to exercise their Constitutional rights. The "justifiable need" standard under the NJ Handgun Permit Law requires an applicant for a carry permit to obtain positive character references from 3 individuals of good reputation who have known the applicant for at least 3 years and then obtain approval from their local police chief. Once the application is complete, individuals seeking a carry permit must undergo background checks regarding criminal and mental history and fingerprinting. Next they must demonstrate their ability to safely handle a handgun and lastly is the highly ambiguous showing of "justifiable need" to carry a handgun. This information is all complied and a permit is issued by a Superior Court Judge only if all criteria are satisfactorily met. Without a doubt there will be further challenges to the NJ Handgun Permit Law as some argue that citizens need guns for protection while others argue that if no one has guns they cannot be used for violence. If you have a justifiable need to carry a handgun and have been denied the right to a carry permit after meeting all criteria to obtain one you should seek an experienced attorney to assist you in your matter. If you are caught illegally carrying firearms the penalties can be severe making it well worth the effort to seek a permit to carry legally. For more information about gun or weapon possession, possession of weapons during a drug related offense, armed robbery, possession of a handgun without a permit, use or possession of a gun in the commission of a crime, illegal weapons, unlawful possession of a weapon or possession of a weapon while on parole or probation visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

NJ Bill Limiting Drone Use By Law Enforcement Vetoed By Governor

NJ S-2702 (A-4037), limiting use of unmanned aerial drones by law enforcement in criminal prosecution, passed the House and Senate then was "pocket vetoed" by the Governor. The bill, as proposed, would limit the ability of law enforcement to use drones in conducting surveillance, evidence gathering or for other police purposes without a warrant, consent of the subject of the investigation or exigent circumstances. Surveillance video or communication could not be used for evidentiary purposes unless related to an ongoing criminal investigation. Any information obtained would also have been precluded from use in establishing reasonable suspicion or probable cause. The bill made it a 4th degree crime to send up an armed drone, including punishment of up to 18 months in prison and a $10,000 fine. As it stands, unmanned drones are being utilized to monitor the actions of NJ citizens. In the event criminal activity is picked up by the drones, it is open season for law enforcement to utilize all information found. For information regarding criminal matters in New Jersey visit DarlingFirm.com.

GPS Satellite Monitoring Of Sex-Offenders Retroactive?

NJ awaits the decision of the NJ Supreme Court on whether a state statute requiring GPS monitoring of sex-offenders will have retroactive application to those already released from jail. The main decision point is whether the 2007 Sex Offender Monitoring Act (SOMA) (N.J.S.A. 30:4-123.89 to 123.95) is intended to punish sex offenders, triggering the United States Constitution's ex post facto clause, or it is intended to rehabilitate offenders and protect the public. Riley was originally found guilty of attempted sexual assault committed in 1986 and sentenced to an extended term of 20 years in prison to run consecutive to a sentence he was already serving for a violation of parole. Riley v. State Parole Board began when, upon release from prison in 2009, he was informed by the Parole Board that, as a classified Tier III sex-offender under Megan's Law (N.J.S.A. 2C:7-1 to 19) with a high risk of re-offense (N.J.S.A. 30:4-123.91(a)(1)), he would be subject to constant GPS monitoring via an ankle bracelet. When wearing the ankle bracelet, a previously convicted sex-offender can move about freely as if without the bracelet, however, "big brother" is constantly watching. This can be likened to parole which is a form of punishment within the criminal justice system. The state's argument is that this form of monitoring is no more restrictive than carrying a cellular phone, with the presumptive reference being the ability to view the location of a cell phone at any time via GPS devices. Certainly there are differences, notably an individual may put their cell phone down anywhere any time and is not tethered to the phone constantly as well as the fact that, although possible, and even legal under certain circumstances, there is not an expectation that police are constantly tracking you by your cell phone. Additionally, although one may leave a cell phone on a charger and go elsewhere while it charges, a convicted sex-offender subject to GPS monitoring must charge the bracelet daily by remaining tethered to an electrical outlet for 2 hours. In Riley, the lower court held that the law is punitive and therefore not retroactively applicable. Upon appeal by the state, the NJ Appellate Division struck down retroactive application of a similar GPS monitoring law as unconstitutional in keeping with Commonwealth v. Cory, 911 N.E.2d 187 (Mass. 2009) and parting with the holdings in Doe v. Poritz, 142 N.J. 1 (1995) and Smith v. Doe, 538 U.S. 84 (2003) holding sex-offender notification requirements as non-punitive. Commission of a sexual offense can be discovered many years after the incident or incident and can result in incarceration, 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 sexual assault, rape, endangering the welfare of a minor, internet crimes, child pornography or other sex crimes in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of counsel.

Conspiracy to Murder, Assault, Weapons Possession and Conspiracy to Distribute Drugs Overturned Due to Juror Altercation

In State v. Dorsainvil, a conviction for first-degree conspiracy to commit murder, second-degree aggravated assault (N.J.S.A. 2C:12-1b) and first-degree attempted murder, second-degree possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4), second-degree possession of a firearm during the commission of a drug-related offense (N.J.S.A. 2C:39-4.1), third-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b) and third-degree conspiracy to distribute cocaine and/or heroin was overturned as a result of an altercation between jurors during deliberations. Following the guilty finding, the defendant moved for a mistrial and the trial court denied the motion. Almost contemporaneously with the jury's announcement of a deadlock, a physical altercation between at least 2 and possibly 3 jurors occurred. The violence was severe enough to prompt the other jurors to summon a Sheriff's officer for safety. Thereafter, a guilty verdict was then rendered creating the reasonable inference that the physical altercation in some way influenced the jurors in order to break the deadlock. The NJ Appellate Division found that physical altercations between jurors was likely to result in undue influence contaminating the verdict. If you are facing charges of murder, assault, attempt, conspiracy, possession of a firearm for an unlawful purpose, distribution or possession with intent to distribute drugs, 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, attempt, conspiracy, possession of a firearm for an unlawful purpose, distribution or possession with intent to distribute drugs in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Financial Penalty For Sex Crimes Under Sex Crime Victim Treatment Fund (SCVTF)

The NJ Supreme Court recently decided State v. Bolvito, a case pertaining to financial penalties imposed upon sex offenders. Carlos Bolvito pled guilty to first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(b)), second-degree sexual assault (N.J.S.A. 2C:14-2(a))and second-degree endangering the welfare of a child (N.J.S.A. 2C:24-4) for acts committed with his stepdaughter. As a result of his plea, Bolvito's sentence included payment to the Sex Crime Victim Treatment Fund (SCVTF) pursuant to N.J.S.A. 2C:14-10. The defendant challenged the amount of his fine as N.J.S.A. 2C:14-10 does not state the factors a sentencing court must consider when setting financial penalties under the SCVTF. The statute merely offers a maximum of $4,000 and the plea was silent as to the amount of the fine. The NJ Supreme Court held that the nature of the offense and the defendant's ability to pay during any custodial sentence and after release. The Supreme Court also held that the sentencing court should provide a statement of reasons for the amount set in order to establish a record for future judicial review. The matter was remanded to allow the trial court to set the SCVTF amount according to these guidelines. 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, sexual assault, aggravated sexual assault, internet crimes, child pornography, rape, endangering the welfare of a minor or other criminal matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Man Charged With Aggravated Assault Was Deprived Of Right To Counsel

In State v. Kates, defendant Raymond Kates was charged with third-degree aggravated assault on a law enforcement officer (N.J.S.A. 2C:12-1b(5)(a)); third-degree resisting arrest by use of physical force or violence (N.J.S.A. 2C:29-2a(3)(a)); fourth-degree hindering prosecution by force (N.J.S.A. 2C:29-3b(2)); and fourth-degree inflicting harm to a law enforcement animal (N.J.S.A. 2C:29-3.1)) as well as various motor vehicle offenses following a 6 mile car chase. Defendant was represented by counsel but not the counsel of his choosing. On the opening day of trial, defendant's counsel advised the court counsel would be deployed overseas during the trial and objected to proceeding before allowing defendant opportunity to retain alternate counsel of his choosing. The trial court denied the request to adjourn without making adequate findings of fact regarding the request and Kates was convicted of eluding and resisting arrest. At sentencing Kates received an extended term as a persistent offender under N.J.S.A. 2C:44-3(a) as a result of prior indictable convictions including second-degree robbery, third-degree possession of controlled dangerous substances (CDS), second-degree sexual assault and endangering the welfare of a minor. On appeal the court looked to State v. Ferguson, 198 N.J. Super. 395 (App. Div. 1985) in making its determination. The Sixth Amendment entitles a defendant with private counsel to counsel of his choosing and does not require a showing of prejudice to defendant. In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) the United States Supreme Court decided that a defendant who does not need appointed counsel has the right to the counsel he or she believes to the be the best for his or her defense. However, the defendant's right is subject to a balancing test under the factors set forth in State v. Ferguson. Under Ferguson the court must consider the length of the requested delay; whether other continuances have been requested and granted; inconvenience to the litigants, witnesses, counsel and the court; and whether the requested delay is for legitimate reasons. The NJ Appellate Division determined the trial court's summary denial of an adjournment to retain private counsel without consideration of the Ferguson factors was a structural error which served to deprive the defendant of his right to counsel and required reversal. "Where the right to be assisted by counsel of one's choice is wrongly denied, therefore, it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants…" Gonzalez-Lopez, 548 U.S. at 148. If you attempted to avoid arrest because you believe you were wrongly accused, did not understand why you were being arrested or other similar reasons you can fight the charges against you. Due to the right of police to arrest citizens they believe to be involved in criminal activity, you should obtain experienced criminal defense counsel to assist you in your defense against these charges. For more information about eluding, assault on an officer, resisting arrest, hindering prosecution 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 counsel.

Sexual Assault Case Hinges On Voluntary Confession

In State v. R.P. the defendant was convicted of sexual assault by sexual penetration of a blood relative between the ages of 16 and 18 (N.J.S.A. 2C:14-2(c)(3)(a)); fourth degree criminal sexual contact (N.J.S.A. 2C:14-3(b)); and one count of endangering the welfare of a child (N.J.S.A. 2C:24-4(a)). The defendant was sentenced to 8 years each on counts one and two to be served consecutively with the remaining sentences to be served concurrently with count one resulting in a total sentence of 16 years. Defendant lived with his biological children and his wife. His wife suspected defendant of being unfaithful and placed a recording device in their bedroom and, days later, found a recording of the defendant and his daughter in what seemed to be sexual acts. The defendant's wife contacted the Bergen County Prosecutor's office who interviewed the defendant's 17 year old daughter who advised the prosecutor sexual acts had occurred between her and the defendant. Detectives visited R.P. at his residence, notified him he was the subject of an investigation and requested that he go to the Prosecutor's Office with them for questioning. The defendant went with the detectives, was Mirandized and waived his Miranda rights. During an 8 minute videotaped interview the defendant stated that for approximately 6 months he and his daughter would lie, in their underwear, on the bed defendant shared with his wife and watch television while the defendant hugged and kissed his daughter's body. He also admitted to putting his mouth on her vagina but denied ever having sexual intercourse. The matter was originally heard in Bergen County Superior Court. At trial, defendant's wife indicated she was under a great deal of stress when she thought the voices were her husband and his daughter and later realized the voices were her cousins who had been visiting that weekend. The daughter provided the same testimony she had originally provided to the detectives. The taped confession was provided to the jury and admitted into evidence without objection by defense counsel. The defendant appealed the matter based on lack of the voluntariness of his confession for failure of the court to comply with N.J.R.E. 104 relating to voluntariness of the confession and N.J.R.E. 403 balancing test to determine whether the probative value of defendant's statement was substantially outweighed by the prejudice it would cause against defendant. R.P. claimed his confession was "false because it was made in a stressful and inherently coercive situation." State v. Cook, 179 N.J. 533 (2004), State v. Jordan, 147 N.J. 409 (1997) and State v. Kelly, 61 N.J. 283 (1972) are among a long line of cases indicating that confessions obtained under coercive circumstances are inherently unreliable. The NJ Appellate Division remanded the matter for a Rule 104 hearing in which the state must demonstrate the voluntariness of the defendant's confession beyond a reasonable doubt. The appeals court did not agree with the State that the evidence against defendant was "overwhelming" and found the failure to conduct a Rule 104 hearing to be plain error. The Appellate Court further considered the fact that admission of the confession, if it was involuntary, could certainly produce an unjust result. 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.

Drugs Suppressed For Lack Of Probable Cause To Arrest

An individual was seen by police leaning against the porch in front of a closed community center building in an area known for violent crime and drug activity. There was a no loitering sign posted on the building and it was very early in the morning so there was an assumption by the officer the center was closed and the individual had no business there. Upon seeing the police car, the individual, David Gibson, began walking. Officer Wayne Comengo stopped the defendant, Gibson, and based on what Comengo described as Gibson's nervous demeanor he was arrested for defiant trespass (N.J.S.A. 2C:18-3(b)). The search incident to arrest led to the discovery of 13 plastic bags of crack cocaine on Gibson's person. Gibson moved to suppress the drugs at trial based on lack of probable cause to arrest. The trial judge denied the motion finding probable cause to arrest did exist and, therefore, the crack cocaine found on his person during the search was admissible. The Appellate Division affirmed the finding of probable cause and Gibson appealed to the NJ Supreme Court. Gibson's argument was that the crack cocaine must be suppressed due to lack of probable cause as the defendant was merely waiting for a ride at the community center, two blocks from his child's mothers home where he had been visiting. Gibson further contended that because he was merely waiting for a ride he was not loitering. The sign on the building warned against loitering, not trespassing. Loitering and trespassing are different crimes and there was no sign on the community center indicating trespass onto the property was illegal. While trespass prohibits entry onto the property, loitering involves lingering or remaining on the property. In State v. Gibson, the NJ Supreme Court held that the evidence on the record was insufficient to find that probable cause to arrest for defiant trespass existed and the fruits of the search must be suppressed. Drug charges can destroy your future and, if you have prior drug charges, you are subject to harsher sentences each time. If you are facing charges for drug possession or distribution you should consult an experienced criminal defense attorney immediately. For more information about controlled dangerous substances (CDS), distribution, possession, under the influence, paraphernalia or CDS in a motor vehicle visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.