Aggravated Assault Results In Miscarriage

Laquesha Cathcart and Tisha Cathcart were indicted for second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)), second-degree burglary (N.J.S.A. 2C:18-2), first-degree robbery (N.J.S.A. 2C:15-1), and fourth-degree theft by unlawful taking (N.J.S.A. 2C:20-3(a)) after forcefully entering the victim's apartment following a dispute over a parking spot in New Brunswick, NJ. The Cathcarts assaulted R.L. and J.D., her daughter, in the presence of R.L.'s husband, F.D., and son. R.L.'s daughter and son both advised the defendant's that R.L. was pregnant but they continued the assault. R.L. miscarried within the week. The main issue in this matter is whether the defendants purposely or knowingly attempted to cause serious bodily injury to R.L. The trial court granted the defendant's motion to exclude testimony relating to R.L.'s pregnancy and miscarriage after determining the probative value of the evidence was substantially outweighed by the likelihood it would prejudice the jury against the defendants. The appeal in State v. Cathcart focused on the exclusion of the evidence. N.J. As affirmed in State v. Buckley, 216 N.J. 249 (2013), N.J. Rule of Evidence 403 permits a court to exclude evidence in the event the prejudicial value outweighs the probative value. More than a possibility of substantial prejudice is required State v. Swint, 328 N.J. Super. 236 (App. Div.), cert. denied, 165 N.J. 492 (2000). To exclude evidence, the party seeking exclusion must demonstrate that the evidence is has such "inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation." State v. Thompson, 59 N.J. 396, 421 (1971). A significant consideration in the decision to exclude evidence is also whether other evidence is available to prove the fact the evidence is offered to prove. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2014). Exclusion of certain evidence, such as motive in a criminal matter, requires a higher showing of prejudice. State v. Rogers, 19 N.J. 218 (1955). Conviction for aggravated assault requires proof by the prosecution that each defendant acted with the requisite state of mind or, under circumstances manifesting extreme indifference to human life, acted recklessly in an attempt to cause or did cause such bodily injury pursuant to N.J.S.A. 2C:12-1(b)(1). State v. Mingo, 263 N.J. Super. 296 (App. Div. 1992), rev'd. 132 N.J. 75 (1993). This requires proof of the defendant's mental state at the time of the assault. The State's appeal centered on the fact that the defendants were advised that R.L. was pregnant yet continued with their assault which included kicking and punching R.L. in the abdomen. In its decision to reverse in part and affirm in part, the N.J. Appellate Division determined that the statements regarding R.L.'s pregnancy were highly relevant to the issue of the defendants' mental state but that the testimony regarding the miscarriage was overly prejudicial. Aggravated assault charges are very serious and bear severe consequences including 5 to 10 years in prison, with an 85% parole disqualifier under the No Early Release Act (NERA), and fines of up to $150,000. 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, robbery, burglary, theft 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.

Lawyer Challenges His DUI Plea Based On Lack Of Counsel

Henry Aratow was convicted of driving while intoxicated (DWI)(N.J.S.A. 39:4-50) in 1988, pled guilty to a driving under the influence (DUI) in 2004, and pled guilty to a 2009 in 2011. In the case of the 2009 DUI, Aratow was sentenced as a third offender resulting in a 10 year loss of driving privileges and 180 days incarceration. In 2013, Aratow sought post conviction relief from in the municipal court and then Superior Court of New Jersey, Law Division, Morris County with regard to the 2004 DUI in order to avail himself of the step-down provisions under State v. Revie, 220 N.J. 126 (2014), pertaining to successive DUI convictions. The relief sought was denied and Aratow appealed to the NJ Appellate Division. In 2004, Aratow was stopped by police and charged with DWI, refusal to submit to a breath sample (N.J.S.A. 39:4-50.2), and making an improper turn (N.J.S.A. 39:4-116). Both at the time he was stopped by police and when he appeared in court for the resulting charges, Aratow was a practicing attorney. Aratow waived his right to counsel and entered into a plea to operating a motor vehicle with a blood alcohol content (BAC) between .08 and .10 with a dismissal of the refusal to submit to chemical breath testing and the improper turn charges. At the time of the 2004 plea, the municipal court judge engaged in lengthy colloquy with the defendant regarding his right to counsel, the factual basis of his plea. The NJ Appellate Division determined that the Aratow was not advised by the municipal court judge of the progressively harsher consequences of successive DUI convictions and, therefore, did not knowingly, voluntarily, and intelligently enter into the plea as required under N.J. Court Rule 7:6-2(a)(1). The court also questioned the sufficiency of the factual basis given by the defendant, as set forth in State v. Campfield, 213 N.J. 218 (2013). The court found that, although Aratow admitted to operating a motor vehicle after consuming 3 vodka and tonics, he was not questioned as to whether he believed that the alcohol he consumed substantially impaired his ability to operate the vehicle or that his BAC was between .08 and .10. Under State v. Barboza, 115 N.J. 415 (1989), the remedy for a plea entered with an insufficient factual basis is to reinstate all charges and restore the matter to its original status prior to the entry of the plea. Accordingly, the NJ Appellate Division reversed and remanded the 2004 matter for a new trial. If you are facing charges of DUI, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DWI, refusal to submit to chemical breath testing, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Drug Possession Charges In Superior Court Barred By Same Evidence Test

During an undercover drug operation, Rodney Miles was charged with possession of a controlled dangerous substance (CDS) with intent to distribute within 1,000 feet of school property (N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5b(12)) as well as a petty disorderly persons offense of possession of under 50 grams of marijuana (N.J.S.A. 2C:35-10a). While lodged in the Camden County Jail, following indictment, the defendant appeared pro se, waiving his right to counsel, via video conference from the county jail and entered into a guilty plea for the disorderly persons offense of possession of under 50 grams of marijuana after it was downgraded to the offense of loitering to possess marijuana (N.J.S.A. 2C:33-2(b)(1)). During the colloquy during which the plea was entered, Miles attempted to obtain clarification with regard to the specific matter on which he was appearing, and whether charges would remain in the Superior Court following the plea. It was very apparent, from the responses offered by the judge, that the municipal court judge did not understand the questions asked by the defendant regarding his remaining charges. Thereafter, In State v. Miles, Miles sought dismissal of the charges pending in the Superior Court of New Jersey, Law Division, Camden County based on double jeopardy as he had entered a guilty plea to charges stemming from the same event. In State v. Salter, 425 N.J. Super. 504 (App. Div. 2012), the court interpreted the 5th Amendment of the United States Constitution, as well as Article I, 11 of the New Jersey Constitution as protecting against a second prosecution following acquittal or conviction and multiple punishments for a single offense or set of events. In State v. Dively, 92 N.J. 573 (1982), the court held the Constitutional protections to be applicable in the municipal court. Although the court held that fundamental fairness pursuant to the defendant's argument grounded on State v. Yoskowitz, 116 N.J. 679 (1989) was not applicable, any subsequent prosecution in the Superior Court was barred under the same evidence test set forth in State v. Salter. The Court held that the municipal court plea resolved all charges stemming from the defendant's arrest. 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.

Expungement Petition And Effect Of Other Crimes

In the Matter of DiGregorio involved a petitioner who sought the expungement from his record of the disorderly persons offense of lewdness and his petition was denied. On appeal, the NJ Appellate Division applied the statute relating to expungement of disorderly and petty disorderly offenses, N.J.S.A. 2C:52-3 to the facts in the instant matter. N.J.S.A. 2C:52-3 reads as follows: Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition… praying that such conviction and all records and information pertaining thereto be expunged. The petitioner properly waited the requisite 5 year period following conviction, payment of his fines and completion of probation in order to seek expungement of the disorderly persons offense. However, the petitioner was disqualified from meeting the expungement criteria as a result of having had two subsequent criminal convictions, one in 2008 and another in 2013. The N.J. Appellate Division affirmed the trial court's denial of the petition. A criminal record can affect your ability to obtain certain jobs, get into certain schools of your choice, obtain housing and have other serious consequences including a negative social stigma. Expungement offers a second chance at a clean record. New Jersey legislators have recently taken steps to make expungement more available in an effort to prevent recidivist criminal activity. Although expungement is available, it should not be taken as a given. If you or your child are seeking an expungement, you should consult experienced criminal defense counsel in order to ensure you qualify and that the crime on your record is expungeable. For more information about expungement, disorderly persons offenses or other criminal matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

First-Degree Aggravated Sexual Assault Remanded For Jury Charge

R.P. was convicted of first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(6)) against his step-daughter O.M. while she was under the age of thirteen. R.P. was sentenced to 26 years in prison with a 13 year period of parole ineligibility. On the defendant's appeal, challenging the conviction based on the trial court's failure to charge the jury with the lesser-included offense of second-degree sexual assault (N.J.S.A. 2C:14-2(c)(1)), the NJ Appellate Division found for the Defendant and vacated the conviction. Additionally, the Appellate Division denied the state's request for a molded verdict pursuant to State v. Farrad, 753 A.2d 648, 164 N.J. 247, 192 N.J. 294 (2007), and remand for a new trial with on the first-degree aggravated sexual assault charge. The NJ Supreme Court's review of State v. R.P. was focused solely on the state's request for a molded verdict. Pursuant to State v. Farrad, the court identified 3 factors: (1) the defendant had his day in court; (2) each element of the lesser-included offense was included in the more serious offense; and (3) the jury's conviction for the more serious offense implies guilt in of the lesser-included offense. In State v. R.P., the court added a prejudice element to the 3 factors by stating that, when all 3 factors are met and the defendant is not unduly prejudiced, a molded verdict should be granted for the state. The court reversed and remanded the matter. If you are charged with a sex crime you are subject to incarceration, registration as a sex offender and the accompanying stigma which will effect 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 DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

The Future of DUI Testing In NJ

Those arrested for driving under the influence (DUI), N.J.S.A. 39:4-50, are most often exonerated or convicted based on the results of chemical breath testing. The Alcotest machine is presently used to determine whether individuals were driving under the influence by using chemical testing to determine their blood alcohol content (BAC) exceeds the legal limit in New Jersey. The machine has been the subject of multiple challenges, the most well-known being State v. Chun, 195 N.J. 54 (2009),and the NJ Attorney General's Office indicated to the NJ Supreme Court that the machine's use would be discontinued by the end of 2016 in light of the machine's manufacturer, Draeger Safety, announcing they would no longer support the machine. Over the years since the Alcotest 7110 was introduced in NJ in 2001, the software has become outdated and the scientific reliability has come into question. Now, as the sun is setting on the Attorney General's time to find a suitable replacement, pay for another company to service the Alcotest machine or for the state to begin serving the machine in-house, those subject to testing for driving while intoxicated, especially those found to be just over the legal limit, are left with the fact that although they may be convicted based on results that have a reasonable probability of being inaccurate, the Attorney General's Office has a window of opportunity wherein this probability is allowed to persist. Additionally, as of this date, no suitable replacement has been indicated by the Office of the Attorney General. If you are facing charges of DUI, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DWI, refusal to submit to chemical breath testing, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.