Monday, June 23, 2014

Burglary Punishment Must Fit Crime Not Criminal

In State v. Nieves, Eric Nieves was charged in 4 residential burglaries and related crimes. The jury found him guilty of four burglaries (N.J.S.A. 2C:18-2); three thefts (N.J.S.A. 2C:20-3); dealing in stolen property (N.J.S.A. 2C:20-7.1b); receiving stolen property (N.J.S.A. 2C:20-7) and conspiracy with codefendants (N.J.S.A. 2C:5-2, :18-2, :20-7.1). Nieves was sentenced to 25 years imprisonment with 150 months of parole ineligibility. On appeal, the appellate division affirmed the convictions but vacated the sentence and returned to the court below for resentencing based on the factors set forth in State v. Yarbough, 100 N.J. 627 (1985). On appeal, Nieves objected to the jury instructions regarding certain lesser included offenses and complicity. Pursuant to State v. Singleton, 211, N.J. 157, 182 (2012), "if the defendant did not object to the charge when given, there is a presumption the charge was not error and unlikely to prejudice defendant's case." Prior to instructing the jury, the judge advised the attorneys of the intended charges and defense counsel gave his assent to both charging decisions. Defendant then bears the burden of showing plain error having a clear capacity of producing and unjust result R. 2:10-2 and the burden was not met. The Appellate Division found defendant's claim of error in the jury instruction on accomplice liability to have insufficient merit and affirmed all convictions. With regard to the custodial sentence, the defendant was sentenced on each of the 10 third degree crimes and received an aggregate sentence of 25 years with 12 1/2 years of parole ineligibility. Defendant did not deny his lengthy criminal history and was aware he qualified as a persistent offender but Nieves argued that the courts extensive reliance on his criminal history was inappropriate. In Yarbough, the court set forth the fact that "punishment should fit the crime, not the criminal, and that there should be a predictable degree of uniformity in sentencing." 100 N.J. at 630. State v. Miller, 205 N.J. 109 (2011) the New Jersey Supreme Court enumerated the Yarbough factors as modified by statute and offered guidance for appellate review of consecutive sentences. The Appellate Division found the discussion of Yarbough factors by the court below to be too cursory to permit adequate review. Further, any conspiracy conviction must be merged with the underlying completed crime. Burglary charges are not often lightly sentenced as they involve the possibility of great physical harm when the intruder and the owner or dweller accidentally meet and both act in fear. If you are facing burglary charges, you should seek experienced criminal defense counsel immediately. For more information about burglary, theft, robbery 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.

Friday, June 20, 2014

Legalizing Marijuana in NJ?

A bill, A-2842, legalizing possession of less than 50 grams of marijuana for any purpose is moving toward legalization in NJ at this time. Presently N.J.S.A. 2C:35-10 criminalizes the possession, use or being under the influence or failure to make lawful disposition of marijuana. N.J.S.A. 2C:35-10(a)(4) currently reads: "Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less a disorderly person." The penalty is up to one year in jail, a fine of up to $1000, or both. Assemblymen Michael Patrick Carroll, R- Morris, and Reed Guscoria, D-Mercer introduced this legislation after seeing the weight of the public sentiment moving toward legalization of marijuana use. The New Jersey State Municipal Prosecutors Association also supports the legalization of small amounts of marijuana for personal use as court dockets are overburdened with marijuana possession charges. Police personnel also find themselves spending copious amounts of time dealing with cases involving these small quantities of marijuana for personal use. Although the bill decriminalizes possession of small quantities as well as being under the influence, operation of a motor vehicle while under the influence would remain illegal. Although many are behind this referendum, there are opponents who believe it will be problematic. One person opposed to legalizing marijuana is Governor Chris Christie who has vowed that such changes to the law "will not happen on my watch ever." For the time being, possession, use or being under the influence of marijuana remains illegal in New Jersey. If you are charged with these or any other crimes under N.J.S.A. 2C:35-10, you can face serious consequences including imprisonment, loss of license, large fines and the stigma of a criminal charge on your record. You should seek experienced legal counsel immediately. For more information about use, possession or being under the influence of marijuana, CDS in a motor vehicle, DUI or other drug charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Tuesday, June 10, 2014

Dilapidated Does Not Mean Abandoned In Warrantless Search

The NJ Supreme Court recently decided State v. Brown, a case in which a warrantless search undertaken by police uncovered a gun, drugs and drug paraphernalia within a residence. After receiving information from two confidential witnesses and a concerned citizen, police conducted surveillance on two non-consecutive days at a run-down residence with the electric meter removed, broken windows, a padlock on the front door, the rear door off the hinges but propped close from the inside and the inside littered with trash. Trooper Kurt Kennedy received information that one of the defendants had a sawed-off shotgun in the residence, was stashing controlled dangerous substances (CDS) inside for distribution and possessed a key he utilized to enter. Kennedy observed, on four separate occasions during one day, individuals approach one of the defendants and provide him with cash and then watched him walk up to the residence, unlock the door, enter and quickly exit the residence and provide the purchasers with suspected CDS. On a second day, Trooper Kennedy observed 14 such transactions. NJ State Troopers arrested four defendants after observing what they considered to be drug activity within an abandoned house within which the defendants were trespassing. Kennedy and the other Troopers made conclusions based on the area being known for crime and general knowledge obtained from being assigned to the area. There were no exigent circumstances apparent, the troopers did not take the time to review the property's deed, tax records, utility records and the like. However, Kennedy did look up Strong, the defendant with the key, and found him listed as residing nearby. Strong also had prior drug convictions. The Troopers also observed similar activity at another residence nearby but did not undertake a warrantless entry of that home as they recognized it to be occupied. Upon obtaining evidence from the warrantless search of the first residence, the police used the "fruit of the poisonous tree" to secure a warrant for the residence they recognized as inhabited. The NJ Supreme Court, in State v. Brown, set forth the presumptiveness against warrantless searches as the backdrop for their review. State v. Johnson, 193 N.J. 528 (2008), State v. Elders, 192 N.J. 224 (2007). The state bears the burden of proving a warrantless search falls within one of several well delineated exceptions to the warrant requirement. State v. Pineiro, 181 N.J. 13 (2004). If the property was truly abandoned, the defendant could not have a possessory interest and therefore no expectation of privacy in the property. The fact that police obtained a key, from one of the defendants, to the padlock on the front door prior to conducting the warrantless search should have indicated that the defendants were exercising control over the property to some degree and alerted them that a warrant was required prior to entry. Under State v. Linton, 356 N.J. Super. 255 (App. Div. 2002) the state would have to show a reasonable belief the house was abandoned and no expectation of privacy could have existed in order to justify the warrantless entry. Before holding the that the state failed to meet its burden of proof due to the NJ State Police failure to determine the property was abandoned or the defendants were trespassers, the court also stated the contrary premise that the police do not need a warrant when observing a stranger inside a structure with a broken front door lock and a door wide open. Clearly the warrant requirement is subject to broad interpretation as it would be difficult to know who is a stranger or an owner in every house in every community and, from the court's example, there is a distinction between doors off hinges and doors wide open with broken locks. The difference between having a search upheld or suppressing evidence obtained from a search rests on small legal distinctions. If the police obtained evidence against you in what you believed to be an illegal search, it is critical that you obtain experienced criminal defense counsel to defend you against the prosecution. For more information about warrantless search, search and seizure, drugs, weapons or other criminal issues in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of counsel.