DUI Step-Down Is Not Limited To One Use Per Driver

The NJ driving under the influence (DUI) statute (N.J.S.A. 39:4-50) includes a provision wherein a “step-down” in sentencing occurs after any ten (10) year period in which an individual charged with a prior DUI receives a lesser level penalty for a subsequent DUI. For example, pursuant to N.J.S.A. 39:4-50(a)(2), if an individual was convicted of their first DUI in 1986 and a second DUI in 1994, they would be sentenced, among other penalties, to a two year loss of driving privileges as a second offender in 1994. However, pursuant to N.J.S.A. 39:4-50(a)(3), if an individual was convicted of their first DUI in 1986 and a second DUI in 1997, more than ten (10) years later, they would be sentenced to, among other penalties, a seven to twelve month loss of driving privileges as a first-offender in 1997. In State v. Revie, the defendant, James Revie was convicted of a fourth driving while intoxicated (DWI) charge in 2011 in Wharton, NJ after an initial DWI in 1981 in Hillsdale, NJ, a second and uncounseled DWI in 1982 in Bogota, NJ, and a third DWI over ten (10) years later in 1994 in Montvale, NJ. Due to the fact that the second DWI was uncounseled and the defendant should have received the benefit of the step-down provision for the ten (10) year lapse between the second and third DWI convictions, the defendant argued that, for the 2011 DUI, he should be sentenced as a second-offender with regard to any term of incarceration. However, the Municipal Court Judge sentenced him as a third-offender refusing to read N.J.S.A. 39:4-50(a)(3) as providing more than one “step-down” benefit to any driver. The NJ Superior Court, Law Division, Morris County affirmed as did the NJ Appellate Division. The NJ Supreme court held that there is no indication that the Legislature intended for a defendant meeting the requirements of the “step-down” provision on more than one occasion to be entitled to the benefits thereof on only one such occasion. In addition to the Legislative intent, included in the NJ Supreme Court’s consideration were also State v. Laurick, 120 N.J. 1, 498 U.S. 967, 111S.Ct. 429, 112 L. Ed. 2d 413, (1990) and State v. Hrycak, 184 N.J. 351 (2005) as they pertained to Revies’ second and uncounseled DUI and State v. Conroy, 397 N.J. Super. 324 (App.Div. 2007) as it pertained to a defendant sentenced with the benefit of Laurick and the “step-down” provision of N.J.S.A. 39:4-50(a)(3). The matter was remanded to the Law Division for re-sentencing as a second-offender. DUI charges, whether for alcohol or drugs, are very serious charges which can lead to incarceration and loss of driving privileges up to ten years. If you are facing charges for DUI it is critical that you obtain experienced defense counsel immediately. For more information about DUI, DUID, controlled dangerous substances (CDS) in a motor vehicle, refusal to submit to chemical breath tests, reckless driving or other serious motor vehicle charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sentence For Possession With Intent To Distribute Should Fit The Offender At The Time Of Sentencing

Joseph Jafee pled guilty, in the Superior Court of New Jersey, Law Division, Morris County, to third-degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(a)(1)) for which the judge imposed a three-year sentence in spite of marked changes in Jaffee’s lifestyle in the year between his guilty plea and sentencing. Jaffee became engaged and acted as a father to his fiancee’s son, remained sober, routinely attended substance abuse meetings and became a counselor to at-risk youth. Additionally, as part of the plea agreement, Jaffee cooperated in the prosecution of his co-defendants. Judge Manahan followed the sentencing guidelines but refused to consider the changes Jaffee had made in the prior year. The NJ Appellate Division affirmed the sentence and Jaffee appealed. In State v. Jaffe, the NJ Supreme Court considered the opinions of State v. Bridges, 131 N.J. 402 (1993) and State v. Hodge, 95 N.J. 369 (1984) with regard to its analysis of uniform sentencing consideration. In addition, the NJ Supreme Court pointed to the fact that the NJ Code of Criminal Justice does allow for consideration of the defendant’s individual situation. Ultimately, the NJ Supreme Court held that, in light of State v. Randolph, 210 N.J. 330 (2012), the Law Division should have assess the defendant “as he stands before the court on the day of sentencing” in addition to simply weighing the aggravating and mitigating factors. After making the determination that Jaffe’s circumstances at the time of sentencing should be considered, the NJ Supreme Court remanded for resentencing in light of the fact that the sentencing judge specifically declined consideration thereof. If you have been charged with possession or possession with intent to distribute a controlled dangerous substance (CDS), it is critical that you obtain experienced criminal defense counsel immediately in order that all exculpatory evidence may be obtained, favorable witnesses may be located, and all appropriate procedures are followed by the police and the prosecution. There are frequently problems with consent to search, warrants, Miranda warnings, inappropriate denial of suppression motions and improper trial procedure which may make a substantial difference in the outcome of your matter. For more information about possession, intent to distribute, CDS, conspiracy and other drug charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Expungement Changes May Still Come For NJ

NJ Assembly bill, A206, permitting automatic expungement of certain criminal records and reducing the waiting period required to obtain an expungement remains before the New Jersey Senate. The statutory waiting period prior to seeking expungement of more serious but expugnable crimes would be reduced from ten to seven years. The statutory waiting period for seeking expungement of disorderly or petty disorderly persons offenses would be reduced from five years to three years. Juvenile records could also be expunged after four years rather than the current five year period if the bill passes. Current requirements, including the non-commission of other prior or subsequent crimes during the requisite waiting period for expungement, would remain as existing with only the modification of the commensurate waiting periods required. The bill also provides for the automatic expungement, after three years, of disorderly or petty disorderly persons offenses for criminal mischief (N.J.S.A. 2C:17-3) or shoplifting (N.J.S.A. 2C:20-11) as well as drug offenses included in 2C:35 or 2C:36 offenses. This would reduce the waiting period from five to three years for expungement of these offenses. The current requirement that the applicant have no other convictions for any other prior or subsequent crimes or any other three disorderly persons or petty disorderly persons offenses would remain intact. Certain crimes including murder (N.J.S.A. 2C:11-1), manslaughter (N.J.S.A. 2C:11-4), kidnapping (N.J.S.A. 2C:13-1), sexual assault (N.J.S.A. 2C:14-2), arson (N.J.S.A. 2C:17-1), robbery (N.J.S.A. 2C:15-1) and other serious crimes shall remain unexpungeable. Additionally, conviction relating to the sale, distribution or possession with intent to distribute controlled dangerous substances (CDS) shall not be subject to expungement except in certain narrowly defined circumstances. Proponents of the bill argue that there is no societal benefit to the extended waiting periods prior to seeking expungement and also cite to the societal interest in cleansing records in order to return eligible non-recidivists to the workforce. If you would like to expunge past mistakes from your record, you should consult with an experienced criminal defense attorney to determine whether you are eligible for expungement and for help navigating the process of obtaining an expungement. For more information about the expungement of a criminal record, visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Warning To The Wise About Your Car's 'Black Box'

If you are charged with criminal activity, the police now have another source of information to use against you, the information stored in your car's 'black box.' The Senate voted to approve NJ A3579, a bill introduced by the NJ Assembly on September 11, 2013 pertaining to the use of information from automobile ‘black box’ recording devices. The information recorded and stored by the ‘black box’ includes location, time of use, number of occupants inside the vehicle, direction of travel and speed. In addition to providing evidence in the case of a motor vehicle accident, the information is also accessible for law enforcement purposes. The text of the NJ A3579 includes the following: “2. a. Except as provided in subsection c. of this section, no person, except the owner of the motor vehicle that contains the recording device, or the owner's representative, may retrieve, obtain, or use data recorded, stored, or transmitted from the recording device, unless: (1) The owner of the motor vehicle, or the owner's representative, consents in writing at the time the data is retrieved, obtained, or used; (2) The recorded data is retrieved or obtained by a law enforcement officer pursuant to a search warrant issued by a judge of the Superior Court or upon order by a court of competent jurisdiction or another administrative authority having jurisdiction to issue such an order;” Although the bill, recently approved by the NJ Senate, limits the use of the stored data, it did not preclude its use by law enforcement. This means that if the police believe that a motor vehicle was utilized in the commission of a crime they may be able to obtain the information from the vehicle’s ‘black box’ that would assist in the investigation and prosecution of any suspects. For more information about specific crimes or criminal defense in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Murder Conviction Reversed On Prejudicial Hearsay

Stephen Scharf was convicted of first-degree purposeful and knowing murder (N.J.S.A. 2C:11-3(a)(1) and (2)) for the murder of his wife, Jody Scharf. Stephen and Jody Scharf were together at the top of the Englewood Cliffs in Bergen County. The defendant contacted the police indicating Jody Scharf must have slipped from Rockefeller Lookout atop the cliffs when he returned to their vehicle to obtain a blanket. The body of Jody Scharf was later located at the bottom of the cliffs, a distance of 52 feet from the base horizontally. The defendant was interviewed by police and the parties' son corroborated his story but also added that the night prior to Jody Scharf's death, he had accompanied them to a late dinner as his mother did not wish to be alone with his father upon whom she had recently served divorce papers claiming abuse and adultery. Both of the parties' sons also provided details of their mother's fear of heights with regard to the notion of her interest in going to the edge of the cliffs. In addition to the fact that Jody Scharf had filed for divorce, the defendant stood to receive $500,000 in life insurance proceeds from her death. In State v. Scharf, pre-trial motions to suppress hearsay testimony from Jody Scharf's counselor and friends were denied based on the judge's reliance on State v. Benedetto, 120 N.J. 250 (1990) and N.J.R.E. 803(c)(3) and the jury was permitted to hear statements about the likelihood defendant murdered Jody Scharf or that she had been afraid of him. The prosecution and defense offered conflicting testimony as to how the body ended up 52 feet from the base of the cliffs. Two of defendant's paramours contradicted Sharf's claims to police that he and Jody Scharf were attempting to reconcile and had terminated relationships with them. Defendant appealed the guilty verdict in the Superior Court of New Jersey, Law Division, Bergen County and the sentence of life in prison with a 30-year parole ineligibility period. The NJ Appellate Division considered defendant's challenge to the hearsay evidence admitted below under N.J.R.E. 401 with regard to the weight of prejudice against the weight of probative value and N.J.R.E. 801(c) pertaining directly to hearsay defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The Appellate Division referenced State v. Calleia, 206 N.J. 274 (2011) wherein the court considered statements of fear which had the danger of creating an inference of violence as an ongoing part of the relationship between the victim and defendant against the introduction of statements to establish the defendant's motive to commit the crime. Ultimately, motive evidence was held to be admissible as a "material issue in a case." Id. at 293-294, provided that the danger of prejudice by the statement offered does not outweigh the probative value. In this balancing, it is the burden of the party seeking exclusion of the statement to establish that it is more likely to be prejudicial than probative. State v. Morton, 155 N.J. 383,453 (1998). Pursuant to Calleia, the State must then show that the accused was most likely aware of the decedent's statement. The NJ Appellate Division determined the statements offered were "neither relevant nor material" and that they were "highly prejudicial and clearly cumulative." The court held that the victims fear of defendant did not make it any more or less likely that she slipped and fell off the cliff to which she voluntarily accompanied the defendant, especially in light of the fact that the autopsy did reveal that she was clearly under the influence of alcohol while on the edge of the cliff. Ultimately, the NJ Appellate Division determined that the defendant had quite possibly been deprived of a fair trial and reversed and remanded the matter for a retrial. If you are facing charges of murder you are looking at a sentence of 30 years to life and even for lesser included offenses the sentence can be the same as life in prison depending on your age at sentencing. When confronting such charges, it is imperative that you have experienced and trusted criminal defense counsel at your side to ensure you have the best chance possible in fighting the case and protecting your rights. For more information about murder, aggravated manslaughter, assault or weapons charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Accused Sex-Offender Gets New Trial After Court Error

David Bueso was charged with first-degree aggravated sexual assault (N.J.S.A. 2C:14-2a(1)); second-degree sexual assault (N.J.S.A. 2C:14-2b); and third-degree endangering the welfare of a minor (N.J.S.A. 2C:24-4a.1) for crimes committed against M.C. when she was approximately four or five years old. Bueso lived with his girlfriend, Lucero, and her mother, Amparo, who babysat M.C. in their residence and the alleged touching occurred in the residence. M.C. told her mother that Busero touched her vagina with his hand and mouth and M.C.'s mother contacted the Union County Prosecutor's Office. M.C. testified that the acts took place in the defendant's bedroom when Lucero was out of the residence. Lucero and Amparo indicated that M.C. was never alone with the defendant and they had never seen any inappropriate behavior by Bueso toward M.C. At trial, in State v. Bueso, Bueso offered exculpatory evidence and the prosecution had no concrete medical evidence of sexual acts against M.C. Additionally, M.C. offered conflicting statements as to the number of times and the dates upon which the alleged acts occurred and the jury found the defendant guilty as to alleged acts on one occasion but innocent of alleged acts on another occasion and the court sentenced Bueso to a 15-year prison term subject to the No Early Release Act (N.E.R.A) (N.J.S.A. 2C:43-7.2). Bueso appealed and the NJ Appellate division held that the plain error standard of State v. Bunch, 180 N.J. 534, 541 (2004) applied and that the court's error in failing to inquire sufficiently into the competence of M.C. to testify must be disregarded "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Pursuant to State v. G.C., 188 N.J. 118, 131 (2006), a witness must understand the nature of an oath and have sufficient capacity to recollect and communicate with respect the matters about which they are providing testimony. State v. Zamorsky, 159 N.J. super 273, 280 (App. Div. 1978) established the elements a trial judge should use to determine competency of children as witnesses as "exploring the child's conceptual awareness of truth and falsehood" and then determining "whether the child understands the duty to tell the truth." The Appellate Division held that the trial in the Superior Court of New Jersey- Law Division, Union County's failure to make sufficient inquiry into M.C. competency was plain error and required a new trial. 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.

First-Degree Robbery Conviction Does Not Require Presence Of A Weapon

When a would-be bank robber claims to have a weapon and creates a reasonable fear that he does have such weapon, he is subject to charges of first-degree robbery (N.J.S.A. 2C:15-1(b)). When Christopher Dekowski entered Commerce Bank in Roselle acting suspiciously, including feigning the locking of the banks doors, carrying a briefcase and dressed in a manner differing from the seasonal norm he quickly drew the bank manager's attention. Dekowski approached a teller, at which time the manager intervened and saw a note indicating that the teller was to place all of the money in a bag and implying that Dekowski had a bomb which he would use if the teller failed to comply. Dekowski was given $500 and apprehended. In the Superior Court, Law Division, Union County, the defendant was convicted, in State v. Dekowski, of first-degree robbery and sentenced to a 13-year prison term with an eighty-five percent parole disqualifier under the No Early Release Act (N.E.R.A.) (N.J.S.A. 2C:43-7.2). The NJ Appellate Division reversed the conviction, finding insufficient evidence with regard to possession of a weapon, as required for a conviction of first-degree robbery, and determining second-degree robbery to be established remanded for resentencing accordingly. In State v. Williams, ___ N.J. ____, ____ (2014) the NJ Supreme Court held that a conviction for first-degree robbery does not require a weapon but only the victim's "actual and reasonable belief that a weapon exists and the defendant's threatened immediate use of such weapon." In Williams, the court relied on State v. Hutson, 107 N.J. 222, 227-228 (1987), holding that the belief in the presence of a weapon need be reasonable under the specific circumstances. The court considered the Dekowski's threat that he had a bomb in concert with the public knowledge and general fear of bombs in contemporary society in determining the reasonableness of the bank manager's belief in the presence of a weapon in making its determination that the defendant's conviction for first-degree robbery would be reinstated. First-degree robbery is a very serious charge that carries substantial penalties including up to 20 years in prison. If you have been charged with 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.

NJ Firearms Purchaser Identification Card Denied For NY Charges

George Winston was denied a New Jersey firearms purchaser identification (FPI) card in 2011 as a result of convictions in New York of attempted assault in 1974 and possession of a controlled dangerous substance in 1989. The Clifton, New Jersey Chief of Police denied Winston an FPI card in spite of "certificates of relief from disabilities" for the prior New York convictions pursuant to N.J.S.A. 2C:58-3c(1). In the Matter of the Denial of the Application of Winston the Superior Court- Law Division, Passaic County judge heard testimony from Winston and others as well as a Clifton detective undertaking the background search with regard to the application. The Clifton detective indicated that Winston's background also included domestic violence charges, a driving under the influence (DUI) charge and disputes with neighbors on more than one occasion. The Law Division judge found that the New York certificates of relief were not entitled to the Full Faith and Credit Clause as they were not equivalent to a New Jersey expungement under New York law but rather they remove certain bars to employment under New York law. If you are seeking a permit to obtain a firearm, 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 HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

DUI Conviction Becomes Easier For State

The appeal of a Union County driving under the influence (DUI) charge led to removal of yet another burden of proof previously borne by the State. In State v. Peralta, the defendant sought to suppress the Alcotest result of .19% blood alcohol content (BAC) as a result after the officers processing the arrest failed to read the standard refusal statement required by N.J.S.A. 39:4-50.2(e). The municipal court refused to suppress the Alcotest reading and Peralta was convicted of driving while intoxicated. Of note is the fact that the officers observations were not found to be sufficient to convict the defendant of DUI. On appeal, the Law Division also convicted Peralta based on the BAC result. On appeal to the NJ Appellate Division the court held that the refusal statement was created by the Legislature for the purpose of advising those who would refuse to provide a breath sample that those driving on the roads of New Jersey are "deemed to have given their consent to the taking of samples of their breath", N.J.S.A. 39:4-50.2(a), and advise them of the consequences of such a refusal. State v. Marquez, 202 N.J. 485 (2010). The Appellate Division indicated that N.J.S.A. 39:4-50.2(e) was not created to add an additional burden on officers processing DWI matters where the accused is willing to provide a breath sample upon request. 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 substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Attempted Murder Suspect Entitled To Fair Trial

Geraldo Rivera was charged with the attempted murder (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1)) of Sean and Michael Burns during a bar fight over Sean Burns' failure to tip the barmaid, Rivera's fiancée'. Sean Burns was left with four stab wounds to the torso and Michael Burns' was cut severely exposing his intestines. Rivera, who claimed self-defense, also suffered head wounds. Multiple witness accounts diverged considerably leaving the jury to decide which version was most plausible. At trial, the prosecutor utilized various methods, including PowerPoint to present the State's case. Rivera was ultimately convicted of second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)) on Sean Burns and fourth-degree aggravated assault (N.J.S.A. 2C:12-1(b)(3)) on Michael Burns. Rivera was sentenced to eight years in prison with a period of parole ineligibility under the No Early Release Act (N.E.R.A.)(N.J.S.A. 2C:43-7.2). On Appeal in State v. Rivera, Rivera challenged the conviction based upon the State's unfair trial tactics depriving him of the right to a fair trial. The NJ Appellate Division determined that the prosecutor's display of Rivera's picture on a slide with the word guilty on it and other overly suggestive acts including climbing into the jury box at one point while Rivera was seated at the prosecutor's table to operate a projector as if to indicate fear of the defendant deprived Rivera of a fair trial. If you are facing charges of murder you are looking at a sentence of 30 years to life and even for lesser included offenses the sentence can be the same as life in prison depending on your age at sentencing. When confronting such charges, it is imperative that you have experienced and trusted criminal defense counsel at your side to ensure you have the best chance possible in fighting the case and protecting your rights. For more information about murder, aggravated manslaughter, assault or weapons charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.