Unconstitutional Traffic Stop Leads To Suppression Of Weapons Evidence

Al-Sharif Scriven was charged with second-degree unlawful possession of a weapon, (N.J.S.A. 2C:39-5(b)); third-degree receiving stolen property (N.J.S.A. 2C:20-7); fourth-degree possession of hollow-point bullets (N.J.S.A. 2C:39-3(f)); and fourth-degree possession of a large-capacity magazine (N.J.S.A. 2C:39-3(j)). The Honorable Martin G. Cronin, for the Superior Court of New Jersey, Law Division, Essex County granted Al-Sharif Scriven’s motion to suppress evidence seized during the warrantless search following the stop of a vehicle in which Scriven was a passenger. The vehicle was stopped by an Essex County Sheriff’s Officer for violating N.J.S.A. 39:3-60, driving with high beams on. The State of New Jersey appealed the court’s grant of the suppression motion. The facts adduced at trial were that Scriven was a passenger in a car which was traveling through Newark, NJ in an entirely lawful manner, with the exception of the fact that the vehicle was traveling with its high beams on. An Essex County Sheriff’s Officer observed the vehicle and flagged it down when it came to a stop at an intersection he was near. When the officer approached the driver to advise her that her high beams were on he requested her credentials. While speaking to the driver, the officer detected an odor of burnt marijuana emanating from inside the vehicle which the officer indicated was stronger on the passenger side of the vehicle. The officer asked Scriven to exit the vehicle and Scriven first notified the officer that there was a handgun under his coat. The officer retrieved the gun from Scriven’s person and arrested him. Judge Cronin relied on State v. Witt, 435 N.J. Super. 608 (App. Div. 2014), 219 N.J. 624 (2014), which was directly on point and held that the initial stop of a vehicle is inappropriate when there is no actual violation. In Scriven, there was no oncoming vehicle within 500 feet traveling in the opposite direction as is required in order for a violation of N.J.S.A. 39:3-60 to occur. On appeal, in State v. Scriven, the court looked to State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005), which held that when an officer makes a mistake in the belief that a violation exists the mistake does not thereby create a reasonable basis for a stop. The State also argued, under the community caretaking doctrine, the officer was acting appropriately in stopping the vehicle briefly to notify the driver that her high beams were in use. In certain cases, including State v. Martinez, 260 N.J. Super. 75 (App. Div. 1992), wherein a vehicle was traveling less than one-half the posted speed limit at 2:00 a.m., an officer would be justified in stopping the vehicle to insure there was nothing amiss. The N.J. Appellate Division upheld Judge Cronin’s decision and the State again appealed. On Wednesday, July 20, 2016, the N.J. Supreme Court affirmed the decision of the court below suppressing the weapon found on Al-Sharif Scriven as the fruits of an unreasonable search. Second-degree unlawful possession of a firearm or handgun carries up to 10 years in prison with a mandatory parole ineligibility period under the Graves Act (N.J.S.A. 2C:43-6(c)). If you are facing weapons charges you should seek experienced criminal defense counsel immediately. For more information about weapons possession, use or possession of a gun in the commission of a crime, possession of a handgun without a permit, weapons possession while on probation or parole, illegal weapons or other weapons related charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

No Jury Trials In NJ DUI Cases

The N.J. Supreme Court ruled that in spite of substantially increasing penalties, driving under the influence (N.J.S.A. 39:4-50) is a motor vehicle matter giving defendants no right to a jury trial. In State v. Denelsbeck, decided May 12, 2016, the court reaffirmed its decision from State v. Hamm, 121 N.J. 109 (1990), wherein it was held that the Legislature, although enacting harsh penalties to deter driving while intoxicated, did not classify DUI as a criminal matter. Penalties for a third or subsequent DUI do not include more than 6 months in jail and thus are not of sufficient impact to require a jury according to the court’s reasoning. In support of this logic is the fact that the court has criminalized driving while suspended for DWI by enacting N.J.S.A. 2C:40-26 which requires incarceration for those convicted of multiple offenses. The N.J. Supreme Court did indicate that, if penalties for DUI became more harsh in the future, they could revisit their decision. If you are charged with DUI, you need experienced defense counsel to protect your rights. For more information about DWI, refusal to submit to breath tests, driving while suspended for DUI, driving under the influence of drugs (DUID), controlled dangerous substance (CDS) and other serious driving charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Murder Conviction Reversed For Lack of Passion Provocation Consideration

Fernando Carrero was charged with the first-degree murder (N.J.S.A. 2C:11-3(a)(1), (2)); second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)); third-degree possession of a handgun without the requisite permit (N.J.S.A. 2C:39-5(b)); and third-degree hindering apprehension (N.J.S.A. 2C:29-3(b)(1)). Pretrial hearings led to the admission of the revolver used to murder the victim, Jason Hall; evidence that the Defendant had been abusive and controlling toward his girlfriend; statements by the Defendant to the police; and a statement by the victim to a third party. Carrero was convicted by a jury of all counts and sentenced to life in prison. At trial, testimony was presented indicating the Defendant and Lowenstein were involved in a romantic relationship wherein he became controlling, jealous and paranoid. At one point, after he repeatedy struck her for “lying” when he questioned her about her friends Jason Hall and Hicks, Lowenstein provided Carrero with the answer he wanted which was that Hall had set Carrero up. Hall and Carrero were alone together some time later at Lowenstein’s family residence and Hall began to provoke the Defendant after entering the kitchen to find Carerro and Lowenstein kissing with her hands around Carerro’s waist. Lowenstein left the room to locate her parents and heard a gunshot. She returned to the room to find Hall on the floor and Carrero pointing a gun at Hall. In spite of Lowenstein’s pleas and physical efforts to prevent harm to Hall, Carrero shot Hall in the head. The Defendant’s account was that, after Lowenstein left the room, Hall threatened him and pulled the gun from his waistband. Carrero testified that the original gunshot occurred during the struggle wherein Carrero wrestled the gun from Hall’s hand. Carrero further testified that he did not intend to shoot Hall and never had his finger on the trigger but the gun accidentally went off when Lowenstein attempted to physically prevent him from shooting Hall. Hicks was in the basement below during the incident and claimed to have heard yelling and “thumping” noises and arrived upstairs to see Carrero flee with a gun in his hand. Newark Police later located the Defendant with the murder weapon. Carrero challenged on multiple grounds including the denial of his request for a passion/provocation manslaughter (N.J.S.A. 2C:11-4(b)(2)) charge to the jury; the admission of hearsay; the gravity of his sentence and the admission of prior-bad-acts he was involved in. The N.J. Appellate Division found that a fair trial requires proper jury charges pursuant to State v. Daniels, 224 N.J. 168 (2016), and that if there is evidence supporting the possibility that a jury could reasonably acquit the Defendant of the original charges but find the Defendant guilty of the lesser included charge then a plenary review of the reason for the denial of the lesser included charge is required under State v. Brent, 137 N.J. 107 (1994). Even when a lesser included charge is inconsistent with the defense’s theory of the case it should be offered as an option for the jury if the evidence at trial supports it. State v. Castagna, 376 N.J. Super. 323, 356 (App. Div. 2005); State v. Mauricio, 117 N.J. 402 (1990); State v. Taylor; 350 N.J. Super. 20 (App. Div. 2002). In the case of State v. Carrero, a passion/provocation manslaughter charge, defined under N.J.S.A. 2C:11-4(b)(2) as a homicide which is committed in the heat of passion with reasonable provocation, should have been offered for the jury’s consideration. The four elements required to establish passion/provocation murder are adequate provocation; the provocation and the actions of Defendant had to occur proximately; the Defendant had to actually become impassioned by the provocation of the victim; and the Defendant must not have calmed down prior to acting against the victim. Mauricio, supra, 117 N.J. at 411. Although a passion/provocation charge is inconsistent with the Defendant’s self-defense theory, it is nonetheless an appropriate jury charge under the evidence presented, including that Hall was trying to provoke Carrero immediately before Hall was shot. The N.J. Appellate Division found that the trial court was incorrect in finding that a passion/provocation charge should not be presented because inconsistencies in the charges presented could confuse the jurors. Further, the Appellate panel found there was a rational basis to support the passion/provocation charge as there was evidence presented of threats, a struggle, Lowenstein’s testimony that her hands were around Carrerro’s waist immediately prior to the incident, and the Defendant’s testimony that Hall was the one who had the gun initially. Based on their findings, the Appellate panel reversed and remanded the matter for a new trial rendering the Defendant’s other points on appeal moot. If you are facing murder charges 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 DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Domestic Violence By Police Officer Found Unfit For Duty

F.M., a police officer, fought against the domestic violence claims of G.M., his wife, and defeated her attempt to obtain a final restraining order against him. However, although the Superior Court of New Jersey, Morris County, Family Part Judge hearing the matter refused to grant the final restraining order, the State of New Jersey moved to take control of F.M.’s firearms pursuant to N.J.S.A. 2C:58-3(c)(5) which outlines the guidelines for the purchase of firearms in New Jersey. The Honorable Thomas J. Critchley, Jr. required F.M. to attend certain counseling and intervention programs and undergo a Fitness for Duty evaluation. Upon completion of his court ordered counseling, F.M. sought the return of his weapons in a hearing where substantial testimony with regard to prior incidents of domestic violence at the hands of F.M. was provided by G.M. Judge Critchley, after hearing the testimony of G.M. and the State’s witnesses, denied the State’s motion including in his opinion that F.M. and G.M. had a lengthy history in the Morris County Family Court to which the State’s expert psychologists were not privy yet the judges within the court were well acquainted. The N.J. Appellate Division affirmed Judge Critchley’s ruling with regard to the return of F.M.’s firearms. The N.J. Supreme Court granted certification and, In The Matter of Applications Of State of New Jersey For Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M., concluded that the Family Part judge misinterpreted the statute as requiring the F.M. suffer from a specific disorder in order to be prohibited from possession his firearms and also misapplied the statute by requiring the State to prove “more than just a showing that some danger might exist” when the State was only required to meet the “preponderance of the evidence” standard in showing that F.M.’s possession of firearms was against the interest of the public health, safety and welfare. The N.J. Supreme Court found that the evidence presented by G.M. with regard to prior acts of domestic violence against her by F.M. and the testimony of two licensed psychologists who both concluded that F.M., based on his lack of self-control and inability to deescalate situations with his own wife, was unfit to perform the duties of a police officer. A Fitness for Duty evaluation by one of the psychologists further concluded that F.M. was a danger to himself and others and should be stripped of his weapons. If you are charged with domestic violence or seeking a final restraining order against an abuser, there are specific burdens of proof for both parties in proving or disproving the charges making it critical that you obtain experienced criminal defense counsel to represent you in such matters. For more information regarding domestic violence, restraining orders, assault, battery and other criminal law issues in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Concealed Weapons Carry Permits for NJ Citizens "In Need"?

Governor Christie is in a battle with the Democrats controlling both houses of the NJ Legislature over concealed weapons carry permits in New Jersey. While Christie has determined that the restrictions requiring the showing of a “justifiable need” for a carry permit are too restrictive, the Legislature claims that Christie’s criteria requiring a showing of “serious threats” against one’s life is violative of the Legislative intent in the creation of the existing gun control laws in NJ. In addition to complaints by gun rights advocates indicating the permitting process was inefficient and overly restrictive, Chistie indicated that changes were a response to the murder of Carol Browne by her ex-boyfriend, against whom she had a restraining order, while Ms. Brown awaited approval of her gun permit. A3689 and SCR101 were immediately sponsored by the Assembly and Senate respectively in a response seeking to codify regulatory language relating to handgun carry permits. Democrats in control of the Senate and Assembly argued that the new standards could serve to substantially increase the number of carry permits in NJ and allow an overly broad spectrum of individuals to obtain permits. The Attorney General’s office replied that all other statutory requirements would continue to apply and a Superior Court judge would have to sign off on the permit so that the only change would be from the showing of an “actual need” to a showing of a specific “serious threat” against the person seeking the permit. The fate of this legislation is still pending. 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 DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Happy Independence Day

The 4th of July calls to mind images of fireworks, the beach, barbecues with family and friends and generally good times. While enjoying the day, please remember to keep yourself and others safe by celebrating responsibly. Happy Independence Day from The Darling Law Firm.