Denial Of Motion To Suppress Marijuana And Handgun Upheld

Kenneth L. Hawes was indicted for third-degree possession of marijuana with intent to distribute (N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(11)); second-degree possession of marijuana with intent to distribute within 500 feet of public property (N.J.S.A. 2C:35-7.1); second-degree possession of a firearm while in the course of committing a crime (N.J.S.A. 2C:35-5 and 2C:39-4.1(a)); second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)); and second-degree certain persons not to have weapons (N.J.S.A. 2C:39-7(b)). An anonymous caller informed Franklin Township police that a black male was selling what may be narcotics from an SUV in a parking lot. Upon investigating, officers in plain clothes saw the man, who had been brought to their attention previously, selling hats, CDS, DVDs and other merchandise from a GMC Envoy and, upon approaching, smelled a strong odor of raw marijuana emanating from Hawes and the SUV. Hawes moved away from the officers but was seized by the arm and subjected to a pat-down search by the officers for their personal safety in which a small pouch with marijuana was discovered on Hawes person and he was placed under arrest. Hawes then asked if he could return the merchandise to his vehicle before being removed and upon returning the merchandise to the vehicle for him, the officers discovered a handgun in partial plain view. Officer Hernandez removed the gun then proceeded to search the vehicle for other weapons, discovering an additional 70 bags of marijuana in the vehicle. At the suppression hearing, in State v. Hawes, the defendant testified that he never asked the officers to return anything to the vehicle and that the weapon was not in plain view. The motion judge found the defendant and his 4 witnesses to lack credibility and denied the motion to suppress. Following the denial of his suppression motion, Hawes entered a retraxit plea of guilty to both indictments in exchange for the State's recommendation of a maximum 10 year sentence with a 5 year period of parole ineligibility. The Somerset County Superior Court Judge sentenced Hawes according to the plea agreement but did not separately impose sentences on the charges. Hawes challenged the validity of the scope of the pat-down search, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), in which under claim of a protective search officers opened the coin pouch discovered in his pocket. Hawes further challenged the ensuing search of his vehicle, including discovery of the handgun and bags of marijuana, as fruit of the poisonous tree under Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417-18, 9 L. Ed. 2d 441, 454-56 (1963). The NJ Appellate Division followed State v. O'Neal, 190 N.J. 601 (2007); State v. Maryland, 167 N.J. 471 (2001); State v. Citarella, 154 N.J. 272 (1998); and State v. Pineiro, 181 N.J. 13 (2004) in properly placing the burden of proof on the State to prove the warrantless search and seizure was soundly within one of the well-delineated exceptions to the warrant requirement. The Appellate Court held that, based on the circumstances at the time of the search under State v. Pena-Flores, 198 N.J. 6 (2009), police had probable cause to arrest Hawes and, therefore, the search and seizure were valid under Chimel v. California, 395 U.S. 752 (1969); State v. Dangerfield, 171 N.J. 446 (2002); State v. McKenna, 228 N.J. Super. 468 (App. Div. 1988); and State v. Burnett, 42 N.J. 377 (1964). Further, the Appellate Division held that defendant's request to return the merchandise to his vehicle gave police opportunity to view the handgun, in plain view, in the defendant's vehicle which, once discovered, made it valid for the police to search the remainder of the vehicle for further weapons without first obtaining a warrant pursuant to U.S. v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1968). Although the denial of the suppression motion was upheld on appeal, the matter was remanded for re-sentencing due to the court's failure to impose individual sentences for each offense as required under State v. Rodriguez, 97 N.J. 263 (1984). 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 DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Assault Conviction For Off-Duty Police Officer

Newark police officer, Hugo Fierro, was indicted for second-degree official misconduct (N.J.S.A. 2C:30-2), third-degree aggravated assault causing bodily injury (N.J.S.A. 2C:12-1(b)(7)), third-degree aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)); fourth-degree aggravated assault by pointing a handgun at another person (N.J.S.A. 2C:12-1(b)(4)) and second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)) after a an off-duty altercation outside an Essex County bar while out with his wife. He was convicted by a jury of simple and aggravated assault (N.J.S.A. 2C:12-1) and official misconduct and sentenced to 5 years in prison without parole, the minimum for official misconduct under N.J.S.A. 2C:43-6.5.1. Evidence offered at trial indicated that Fierro, while off duty and walking with his wife in the Ironbound section of Newark after dinner and dancing, encountered a group of men drinking on the street and went out of his way to order them to disperse. He next identified himself as a police officer to another intoxicated man and guided him by the arm toward a street to help him obtain a cab. At this time, the victim claimed he approached and Fierro yelled "what's your problem? What's your problem?" and tried to grab the victim. Upon finding himself unable to catch the victim, Fierro withdrew a gun from his side, stated he was a police officer, pursued the retreating victim and hit him in the face with the barrel of the handgun at which time the victim fled. The following day the victim reported the incident and selected Fierro's photo out of a photo array. An outdoor camera had recorded the incident and Fierro was positively identified. However, Fierro testified that, while he was trying to assist an intoxicated man to a cab, the victim approached, would not go away when Fierro asked, twice slapped Fierro's hand when he attempted to create space between them and was acting in a manner which caused Fierro to believe the victim may attack. Fierro claimed that he did not strike the man but did push him away by placing his hands on the victim's chest and pushing him back while holding his gun as he believed the victim may have possessed a weapon. Additionally, an officer who took the victim's report testified that there was no visible damage to the victim's face at the time the report was made. On appeal, in State v. Fierro, the defendant argued that the jury's split verdict demonstrated the juror's lack of understanding of the elements of the charges. The NJ Appellate Division considered Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 461 (1984), State v. Banko, 182 N.J. 44 (2004), State v. Muhammad, 182 N.J. 551 (2005) and others in holding that a split verdict does not definitively indicate that the jury did not fully understand and properly execute its function. The conviction was affirmed on appeal. Assault and attempted assault charges are very serious and bear severe consequences. If you are a police officer or other official, the consequences are even more severe. If you are facing assault charges, you should obtain experienced criminal defense counsel immediately to insure your rights are protected. For more information about assault, illegal possession of a handgun, possession of a weapon for an unlawful purposed 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.

DUI Blood Draw Due To Exigent Circumstances

Donna Jones was suspected of driving under the influence (DUI) at the time she caused a three car accident, resulting in injury to herself and another, by rear ending a car stopped at a light then striking a second car immediately in front of the first before her vehicle came to rest. As a result of the accident, Jones was unconscious. Although officers were alerted by EMTs to an odor of an alcoholic beverage emanating from Jones' breath at the scene, no field sobriety testing was possible due to her condition. Jones was transported to the hospital for treatment after emergency personnel extracted her from her vehicle. At the hospital Jones remained unconscious for some time and was despondent upon regaining consciousness. An officer requested that blood be extracted from Jones without a warrant and the resultant blood alcohol content (BAC) reading was .345 percent. Jones was indicted for fourth-degree assault by auto (N.J.S.A. 2C:12-1(c)(2)) and issued summonsed for DUI (N.J.S.A. 39:4-50) and reckless driving (N.J.S.A. 39:4-96). In Missouri v. McNeely, ___ U.S.___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), a driver was arrested for driving while intoxicated (DWI) as a result of a routine traffic stop and U.S. Supreme Court determined that the natural metabolization of alcohol in an individual's bloodstream does not, without more, constitute exigent circumstances giving rise to the ability of police to forego the warrant requirement of the Fourth Amendment and withdraw a blood sample without consent. Pursuant to the holding in McNeely and the fact that there was no proof police were unable to obtain a warrant under the particular facts of the case, the trial court suppressed Jones' blood alcohol content (BAC) reading. On appeal, in State v. Jones, the State argued that McNeely should not have been applied retroactively in this case where the incident occurred but the case was decided after McNeely. The NJ Appellate division determined the trial judge erred in his application of the standard required under McNeely and Schmerber v. California, 384 U.S. 757 (1966), and held that the BAC results of Jones should not have been suppressed. In State v. Dyal, 97 N.J. 229, 238 (1984), New Jersey courts held it legal to obtain a blood sample without the need for a warrant as long as there was a reasonable belief the driver was intoxicated and the blood was withdrawn "in a medically acceptable manner…without the use of excessive force." The NJ Appellate Division did consider McNeely in determining that it is a given that a person's BAC does dissipate once the alcohol is fully absorbed into the blood stream and declines over time until it is fully metabolized thus creating a need for drawing blood to preserve evidence of intoxication. The decision of the trial court with regard to suppression of the BAC results was reversed. If you are convicted of DUI you face serious penalties including loss of license for up to 10 years, incarceration for up to 180 days and substantial fines. You should obtain an experienced DUI attorney immediately to help fight your case. For more information about DWI, drug DUI, CDS in a motor vehicle, blood and urine testing, reckless driving, refusal to submit to a breath test or other serious motor vehicle offenses in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Weapons Offense Merges Into Burglary Charge

Sherrone Robinson was charged with third-degree conspiracy to commit aggravated assault (N.J.S.A.. 2C:5-2; 2C:12-1); second-degree conspiracy to commit burglary (N.J.S.A. 2C:5-2, 2C:18-2); second-degree burglary (N.J.S.A. 2C:18-2); second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a); second-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b); second-degree possession of a weapon by a convicted person (N.J.S.A. 2C:38-7); fourth-degree aggravated assault (N.J.S.A. 2C:12-1b(4)); and third-degree hindering apprehension (N.J.S.A. 2C:39-3b(1)). Robinson pled guilty to second-degree burglary and second-degree possession of a weapon for an unlawful purpose in exchange for dismissal for the other charges. For the burglary the state recommended a 4 year prison term and concurrent 5 year term for the weapons offense. The burglary offense was subject to an eighty-five percent parole ineligibility period under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2) while the weapon offense carried a mandatory minimum term of three years pursuant to the Graves Act (N.J.S.A. 2C:43-6(c)). In State v. Robinson, Robinson later appealed the sentence arguing that the weapon possession was for the purpose of the burglary and should be merged therewith rather than included as a separate conviction and offense. In making his argument for merger, Robinson relied on State v. Tate, 216 N.J. 300, 302 (2013) (citing State v. Davis, 68 N.J. 69, 77 (1975)), which held that an accused committing a single offense cannot be punished as if they committed more than one offense. State v. Messino, 378 N.J. Super. 559, 585 (App. Div. 2005) provided an alternative analysis of N.J.S.A. 2C:1-8, regarding merger of offenses, which suggested a more "flexible approach" to merger wherein the elements of the crimes are considered. In State v. Diaz, 144 N.J. 628, 636 (1996), the court held that "when the only unlawful purpose in possession the [weapon] is to use it to commit the substantive offense, merger is required." The NJ Appellate Division reviewed the record and noted that defense counsel stated the prison terms as set forth in the plea agreement, the judge then reviewed those terms with the defendant on the record and the defendant indicated a full understanding thereof. The Appellate Division decided that the defendant received the benefit of the plea bargain as his counsel negotiated the plea bargain with the State on his behalf. The Appellate Division remanded the matter for correction of the judgment of conviction to reflect merger of the convictions and a sentence of 5 years total of which 4 were subject to an 85 percent parole disqualifier under NERA. 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, weapons, assault, 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.