Civil Commitment of Sexual Violent Predators

In The Matter of the Civil Commitment of C.H. the State sought civil commitment under the Sexually Violent Predator Act(SVPA) (N.J.S.A. 30:4-27.24 to -27.38). An Essex County Superior Court judge found C.H. not highly likely to re-offend and the prosecution contended on appeal that the judge failed to properly evaluate C.H.'s antisocial personality disorder and predisposition to re-offend a sexually violent predator. Before C.H. was dismissed from the NJ Special Treatment Unit (STU) the state appealed the Superior Court's decision. C.H. was convicted of four sexual offenses on women 17 to 36 as well as other crimes of violence, including burglary, assault, theft and drug related offenses between 1978 and 2005. Under the SVPA, an individual can face involuntary civil commitment upon completion of their sentence if he or she "suffers from an mental abnormality of personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26. The court, deciding in re Commitment of W.Z., 173 N.J. 109, 127 (2002) interpreted the statute to mean that a mental abnormality or personality disorder must distort the ability to control the person's "sexually harmful conduct". The court, in W.Z., held the state bears the burden of proving the defendant is a threat to the health and safety of others by demonstrating "the individual has serious difficulty in controlling sexually harmful behavior" making it Highly likely" they will re-offend. The state's expert psychiatrists found C.H. highly likely to re-offend sexually based on his paraphelia, a condition involving intense fantasies and urges with sexual arousal to inappropriate stimuli, polysubstance abuse and antisocial personality disorder (ASPD). The Appellate Division found the trial judge's opinion reflected a mistaken exercise of discretion based on the expert opinions provided. The judge found C.H. to be predisposed to acts of sexual violence, miscalculated the time periods between C.H.'s arrests, gave insufficient weight to unresolved substance abuse issues, concluded without evidence C.H. "aged out" of his sexually violent tendencies and failed to take into account the overall psychiatric situation of C.H. The Appellate Division determined C.H. would have his commitment reviewed periodically and, therefore, did not order a remand hearing but simply reversed the decision of the trial judge determined C.H. was to be civilly committed. If you have been charged with a sex crime, a conviction or guilty plea can result in incarceration for a term of years followed by involuntary civil commitment for life. Consequences also include registration as a sex offender and the social stigma you will face forever. It is critical you obtain experienced criminal defense counsel immediately if you are charged with a sex crime. For more information about rape, sexual assault, child molestation, solicitation of a minor or other sex crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Sentencing In Weapons Case Must Fit The Crime

The defendants, Jaquan Lee and Tony Canty, collectively appealed their convictions of 1st degree armed robbery, N.J.S.A. 2C:15-1, 2nd degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a(1), 3rd degree unlawful possession of a shotgun without a firearms purchaser ID card, N.J.S.A. 2C:39-5c(1) and N.J.S.A. 2C:58-3, 3rd degree unlawful possession of a sawed-off shotgun N.J.S.A. 2C:39-3b and 2nd degree certain persons not to possess firearms N.J.S.A. 2C:39-7 arising out of 3 separate robberies occurring on July 30, 2007 in Elizabeth putting multiple victims at risk. The defendants in State v. Lee were sentenced in the Union County Superior Court to 15 year terms for each count concurrent as to multiple victims in each incident but consecutive as to each incident resulting in aggregate 45 year terms subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 which requires service of 85% of their sentence before eligible for parole. On appeal, collectively State v. Lee, the defendants challenge in court identifications and excessive sentences. Canty challenged a motion to suppress and Lee challenged the adequacy of the jury charge. The NJ Appellate Division affirmed the convictions but remanded for resentencing as the court did not adequately place the reasons for imposing 3 consecutive sentences on the record. In reviewing whether the sentences should be consecutive or concurrent, the Appellate Division looked to State v. Yarbough, 100 N.J. 627, 644 (1985). Yarbough sets forth factors a court may consider do make such a determination including whether (1) the crimes and objectives were predominately independent of each other; (2) the crimes involved separate acts or threats of violence; (3) whether the crimes were unified in place or time or whether they were individual acts; (4) the number of victims in each criminal act; and (5) the number of convictions for which sentences will be imposed. The Appellate Division also agreed the criminal history and rate of recidivism of the actors could be considered according to State v. Mosch, 214 N.J. Super. 457 (App. Div. 1986). If you have been accused of a crime it is imperative you obtain experienced legal counsel to begin preparing a defense, recognize and challenge violations of your rights with motions to suppress or dismiss and, if you are ultimately sentenced, challenge excessive sentences. For more information regarding weapons, drugs, robbery, assault or other serious criminal charges visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Another year........

As we celebrate the beginning of 2014 with hopes and dreams of better things to come for all our Firm would like to thank our clients, friends and families for the years of trust, support and business! Happy New Year from all of us to all of you!

Improper Use Of DNA Evidence Is Reversible Error NJ

Dow was convicted of murder (N.J.S.A. 2C:11-3a(1)-(2)) and possession of a firearm with the unlawful purpose of using it against the person or property of another (N.J.S.A. 2C:39-4a) for shooting and killing her former lover, William Michael Seidle. The victim was shot 3 times in the home he had shared with the defendant. The police recovered no evidence of a murder weapon or any other incriminating evidence when after a search of defendant's residence and storage unit. Another woman Seidle had been seeing received 2 voice messages from a woman with a deep voice and English accent instructing her to leave Seidle alone. Neighbors testified defendant was outside Seidle's home on the morning he was killed and her car was in the driveway the night before. Defendant was suspected of faxing 2 disparaging letters to Seidle's employer within the days leading up to the murder and was identified by the clerk in the printing store from which the faxes were sent. The day after Seidle's death was reported in the news, defendant attempted suicide leaving a lengthy note indicating her suicide attempt was on that date as it was the anniversary of her daughter's death, implicating her former lover in arranging to have Seidle "fixed", accusing Seidle of beating her regularly and failing to indicate knowledge of Seidle's death but he testified to the contrary on behalf of the State. The State used a DNA expert to explain that comparing DNA to DNA found in evidence can either include or exclude them as present or determine them to be the source of the DNA and tying this into a cut on defendant's nose not seen before Seidle's death. The State's expert did acknowledge that the mixture of DNA did not mean that all of the DNA on the fabric was placed there at the same time and defendant had lived with Seidle for some time prior to their break-up just before his murder. In State v. Dow, the NJ appellate court reversed the conviction and remanded for a new trial after finding that the prosecutor's use of the DNA evidence was knowingly mischaracterized and the admission of the defendant's suicide note without adequate evaluation of her statement that the suicide attempt, on the anniversary of her daughter's death, was in any way related to guilt or avoidance of prosecution. If you are facing criminal charges, there may be multiple defenses you have and the prosecution will make every effort to utilize any piece of evidence against you. It is critical that you obtain an experienced criminal defense attorney to represent you immediately. For more information about weapons possession or other criminal issues in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Purposeful and Knowing Intent And The Insanity Defense

A defendant pled guilty to kidnapping, attempted murder, burglary, weapons charges and other criminal charges in two incidents involving his wife and mother-in-law then sought post-conviction relief based on a claim that he was under the influence of prescription medication at the time the plea was entered and he was misled by counsel as to the terms of the plea agreement and inadequately informed as to potential defenses of insanity and diminished capacity. Without the benefit of an evidentiary hearing, the Essex County Superior Court Judge denied the defendant’s petition. The defendant, while in a Marine Corp combat unit, suffered a head injury while skydiving which caused him to experience blackouts and he also claimed to hear voices. While incarcerated and awaiting trial at the Essex County Correctional Facility, a psychiatrist found the defendant to be confused. He was also placed on suicide watch while awaiting trial as well as medicated. A psychological evaluation to determine competency to stand trial resulted in the finding defendant was bipolar and suffering serious depressive disorder but competent to stand trial. A pre-trial psychological evaluation revealed that, when defendant regained awareness and realized he was choking the victim, he called 911 requesting assistance for her. It was opined that Njango could not have formed the purposeful and knowing intent required to find guilt, nor could the attack have been premeditated. The State’s psychiatrist found defendant to have an intact memory and incapable of meeting the criteria to utilize an insanity defense. The NJ Appellate Division, in State v. Njango, rejected defendant’s argument that he was under the influence of prescription medication however, the Appellate Division did find he had a colorable defense based on a medical report indicating he was suffering from dissociative disorder and major depressive disorder as to one indictment and as to whether the defense was raised, or even discussed, as to the second indictment. Neither of defendant’s plausible issues was raised at the time the plea was entered and no waiver of the insanity defense or other incompetency defense was discussed at the time of the plea. After review of the matter, the court decided to reverse the decision of the Essex County Superior Court Judge and remand for an evidentiary hearing. If you have been charged with criminal activity the impact of a guilty finding or plea can be devastating on your future. Although many individuals are well acquainted with their rights, there are complexities in the law that dictate individuals are best served by obtaining experienced counsel to represent them. For more information about burglary, weapons charges, defenses or other crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Multiple DUI and Driving While Suspended Charges in NJ

In a case involving 3 prior driving while intoxicated (DWI) convictions and 4 prior convictions for driving while suspended, a woman was charged with a 5th driving while suspended (DWS) charge. Such matters involving multiple prior events are forwarded from the municipal court to the county prosecutor’s office for resolution. The jury, in State v. Sharp, indicted the defendant on two counts of 4th degree driving while suspended and the defendant applied for pre-trial intervention (PTI). The defendant was accepted into the PTI program but the prosecutor objected to her entry based on her prior driving record which they found to reflect a lack of interest in rehabilitation and a pattern of disregard for the safety of other motorists and passengers. The defendant filed a motion for admission to PTI over the prosecution’s objection and the judge found in favor of Sharp, permitting her to enter the PTI program. In matters of PTI, the prosecutor has broad discretion in making the determination of whether defendants should be admitted. The standard for a judge to overrule the prosecution in requests for PTI admission is patent and gross abuse of discretion on the part of the prosecution. The state appealed the judge’s decision and the NJ Appellate Division found the judge to have erred in making the decision to overrule the prosecutor’s denial of admission to the PTI program. A guilty finding or plea in a DUI or other criminal matter can have substantial negative consequences on your future. PTI is a diversionary program which permits certain defendants to avoid more serious charges on their record and also is expungeable after a period of time. For more information about PTI, driving under the influence, driving while suspended, controlled dangerous substances (CDS) in a motor vehicle and other municipal and superior court criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Insanity Defense Does Not Require Bifurcated Trial

From the ruling in State v. Khan, 175 N.J. Super. 72 (App.Div. 1980) through the ruling in State v. Handy, a 2004 murder case in Paterson, NJ, the rule was that criminal defendants seeking to employ an insanity defense would have bifurcated trials in which their insanity defense was tried separately from any other defenses they may have. For the foreseeable future, criminal defendants will be forced to make difficult decisions, judges are going to have to give detailed explanations to juries about inconsistent defenses and juries will have to learn to compartmentalize the defenses presented and consider them separately. There is definite reason for concern on the part of defendants given the complexity of this approach for juries and the ease with which a judge may fail to properly instruct a jury. Robert Handy was charged with the January 2004 murder of his uncle Arthur Cooper who died from a single stab with a knife to the heart. Handy had a history of mental illness which included his hospitalization in psychiatric facilities. Handy also made the claim that his uncle was high on cocaine and hit him with a piece of metal pipe maintaining that the stabbing was in self-defense. Passaic County Superior Court Judge Joseph Falcone found that handy was not competent to stand trial after an insanity defense was presented and without being permitted to raise his self-defense claim, Handy was confined to a mental institution. Handy was thereby prevented from presenting the weapon he claimed his uncle used against him, a bloody piece of metal pipe partly hidden under a couch which the uncle was apparently next to when stabbed. The pipe had the words "King Reveal" painted upon it and the same words were tattooed on the uncle's body. Defendant appealed and sought the opportunity to present his self-defense claim. According to the ruling of NJ Appellate Division, a defendant does not have to raise an insanity defense first subjecting themselves to commitment to a mental institution. Alternatively, however, if defendants opt to utilize an alternate defense initially, they may not then utilize an insanity defense if their first defense fails. In making its ruling, the Appellate Court evaluated Khan in light of our State's Criminal Code and found it to be in conflict with several aspects. Additionally, the Appellate Division determined Khan to be contrary to the approach used in other states and based upon District of Columbia law that is no longer valid. Serious criminal charges are certain to have a lasting impact on your future. A guilty plea or verdict in a murder case, even to a lesser charge, will change your life forever through incarceration, loss of future opportunities and social stigma. If you are facing criminal charges, you should consult experienced criminal defense counsel immediately to begin preparing your defense. For more information about murder, weapons, drugs (CDS) or other serious criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.