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.