Armed Robber Seeks Post-Conviction Relief

Jeffrey Toth was indicted for the armed robberies of a 7-11 and Quick Chek in Woodbridge, NJ and pled guilty to two counts of first-degree armed robbery. At 7-11, Toth was said by a clerk to have a knife and the Quick Chek clerk claimed Toth used a screwdriver as a weapon. Toth was later identified as the robber after bragging to others about robbing the stores. In State v.Toth, the Defendant pled guilty in exchange for a maximum sentence of 15-years imprisonment and dismissal of the remaining counts of the indictment. He was sentenced to 10-years in prison, the minimum for first-degree armed robbery, with an eighty-five percent parole disqualifier under the No Early Release Act (NERA)(N.J.S.A. 2C:43-7.2). Years later Toth sought post-conviction relief (PCR)claiming his attorney failed to argue certain mitigating factors at sentencing but was denied without an evidentiary hearing finding Toth's counsel had made such arguments. He appealed and the NJ Appellate Division reversed and remanded the decision for review under State v. Parker, 212 N.J. 269 (2012) including either oral argument regarding his PCR petition or give adequate explanation as to why oral argument will not be held. First-degree armed robbery is a very serious charge that carries substantial penalties including up to 20 years in prison for each charge. If you have been charged with armed 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.

Conviction For Attempted Murder of Newark Police Officer Upheld On Appeal

Omar Bridges and two co-conspirators were charged, by an Essex County grand jury, with three counts of first-degree attempted murder (N.J.S.A. 2C:11-3 and 2C:5-1); three counts of second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)); third-degree unlawful possession of a weapon, a handgun (N.J.S.A. 2C:39-5(b)); second-degree possession of a weapon, a handgun, for an unlawful purpose (N.J.S.A. 2C:39-4(a)); second-degree unlawful possession of an assault firearm (N.J.S.A. 2C:39-5(f)); third-degree receiving stolen property (N.J.S.A. 2C:20-7); second-degree eluding (N.J.S.A. 2C:29-2(b)); and first-degree conspiracy to attempt to murder the occupants of a vehicle (N.J.S.A. 2C:5-2 and 2C:11-3). Bridges was ultimately convicted of the attempted murder of Newark Police Officer Patinho, aggravated assault on Officer Patinho, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, unlawful possession of an assault weapon, receiving stolen property and certain persons not to have weapons. For his participation in stealing a Jaguar, engaging in a shoot-out with occupants of another vehicle and the shooting of a police officer in the chase thereafter, Omar Bridges was sentenced to an aggregate 40-year prison term. Officer Pathino's testimony at trial was that he saw the shoot-out while on patrol and, upon turning on the squad car's lights, a Jaguar and Subaru fled in different directions with Pathino chasing the Jaguar. The chase through Newark lasted approximately two minutes at 90 to 100 miles per hour until the Jaguar went airborne crossing railroad tracks and sustained heavy damage. When the Jaguar came to rest, Officer Pathino exited the squad car and ordered the Jaguar's passengers to show their hands at which time the passenger shot Officer Pathino. Officer Gasavage exchanged fire and the vehicle's occupants fled on foot. On appeal in State v. Bridges, the Defendant claimed the trial court erred in denying his request for a Wade hearing with regard to Officer Pathino's photo identification of the Defendant. Although New Jersey took a more broad approach to pre-trial identification in State v. Henderson, 208 N.J. 208 (2011), the Appellate Division determined that, under the circumstances of the case, United States v. Wade, 388, U.S. 218 (1967) did not serve to extend exclusionary principles of pre-trial identification procedures to in-court trial identifications in Defendant's case. The Defendant next raised the point that the sentencing court did not perform an appropriate analysis under State v. Yarbough, 100 N.J. 627 (1985) which requires the court to consider six specific criteria in sentencing. The NJ Appellate Division agreed with the Defendant and remanded the matter to the sentencing court for a full statement of its reasons for imposing consecutive sentences as required under State v. Carey, 168 N.J. 413 (2001). If you are facing murder or other serious charges, you are facing a prison sentence which may last your entire life. You require an experienced criminal defense attorney to protect your rights and ensure that your are provided with the best possible defense. For more information about murder, weapons offenses, theft and other serious criminal offenses in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

10 Year DUI Sentence Upheld Without Alcotest or Blood Sample

John Cumpston was charged with driving under the influence (DUI) (N.J.S.A. 39:4-50), driving while intoxicated (DWI) in a school zone (N.J.S.A. 39:4-50(g)), driving while suspended (N.J.S.A. 39:3-40) reckless driving (N.J.S.A. 39:4-96) and careless driving (39:4-97) after Tenafly police responding to an accident call found him in his Toyota Camry which he had driven into a telephone pole. There were no other occupants in the vehicle and a scrape on Cumpston's face was consistent with the airbag's deployment. Cumpston's speech was slurred, his breath smelled of an alcoholic beverage, he had difficulty balancing when standing, his clothes were disheveled and he was without shoes, he admitted to consuming various alcoholic beverages prior to driving, he did not wake when his blood was drawn in the hospital and urinated on himself while sleeping in the hospital. In State v. Cumpston, the State stipulated to suppression of the blood test upon Defendant's motion but the court refused to suppress the Defendant's pre-arrest statements. At trial in the Tenafly Municipal Court, Judge Bell based the convictions for DUI, DWI within 1000 feet of a school zone, reckless driving and careless driving on the officers' testimony and the totality of the circumstances. The Defendant was sentenced to 180 days in the Bergen County jail and 10-year loss of license as a third time DUI offender with a concurrent 180 day sentence for DWI in a school zone and a 20-year loss of license on that charge. The Defendant was also ordered to addend the Intoxicated Driver Resource Center (IDRC) in association with the DUI and DWI in a school zone charges and fines totaling over $3,000 collectively on all convictions. On appeal before Judge Jerejian in the Superior Court of New Jersey, Bergen County, Cumpston sought to have his admissions at the scene of the crash, with regard to alcohol consumption, suppressed under claim that his Miranda rights were violated, sought to have the convictions reversed and for a reduction in his sentence. The State submitted that the conviction for DUI should merge into DWI in a school zone. Under State v. Kent, 391 N.J. Super. 352 (App. Div. 2007) field sobriety tests are not required for a DWI conviction. Other proofs including "a defendant's demeanor and physical appearance- coupled with proofs as to the cause of intoxication - i.e., the smell of alcohol, and admission of the consumption of alcohol, or a lay opinion of alcohol intoxication." State v. Bealor, 187 N.J. 574, 589 (2006). As to the Defendant's statements at the scene, New Jersey has long held that Miranda warnings are not required prior to field sobriety testing. State v. Ebert, 377 N.J. Super. 1 (App. Div. 2005); State v. Green, 209 N.J. Super. 347, 350 (App. Div. 1986); State v. Weber, 220 N.J. Super. 420, 424 (App. Div. 1987). Further, in Berkemer v. McCarthy, 467 U.S. 420, 442 (1984), the U.S. Supreme Court held that basic on scene questioning and field sobriety tests do not give rise to a "formal arrest" requiring Miranda warnings. The Superior Court of New Jersey, Bergen County, did agree that the Defendant's sentence should be modified to merge the DUI into the DWI in a school zone as well as the fact that, although the Defendant was a third offender under N.J.S.A. 3:4-50(a), he was a first time offender under N.J.S.A. 3:4-50(g). The sentence for DWI in a school zone was modified to 180 days in the Bergen County Jail, $1,000 fine and 10-year loss of license. Driving under the influence of drugs or alcohol in New Jersey bears serious consequences including loss of driving privileges from 7 months for a first event to 10 years for a third or subsequent event, enhanced penalties for driving while intoxicated in a school zone, heavy fines and even jail. If you are facing DUI charges, it is critical you obtain experienced defense counsel to represent you against those charges. For more information about DUI, DWI, DUI in a school zone, controlled dangerous substances (CDS) in a motor vehicle, reckless driving, driving without insurance or other serious municipal court charges in New Jersey visit HeatherDarlinglawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sexual Assault Plea Reversed For Failure To Understand Supervision

William Smullen pled guilty to two counts of second degree sexual assault (N.J.S.A. 2C:14-2c(4))for having sexual intercourse on two separate occasions with a 15 year old female while he was 23 years old. The defendant was sentenced to lifetime supervision under N.J.S.A. 2C:43-6.4 as part of his plea agreement. In addition to federal charges, based on defendant's travel from his home state of New York to have sexual relations with the minor, Smullen was sentenced in New Jersey to 3 years in prison and community supervision for life. Following sentencing in State v. Smullen, the Defedant sought post-conviction relief (PCR) claiming insufficient opportunity to fully understand the scope of community supervision for life in spite of the 10 page document the judge provided him during the plea hearing which summarized lifetime community supervision. Additionally, the Defendant claimed ineffective assistance of counsel as a result of counsel's failure to explain the restrictions Smullen would face in New York under Megan's Law. The PCR court determined that holding the attorney accountable for failure to advise the Defendant of supervision requirements in other states was inappropriate. The Appellate Division held that, as a lifelong resident of New York, the Defendant should have been advised of the applicable provisions of community supervision for live which would be applicable to him as a New York resident and reversed the decision of the PCR court. it was also established at trial that the defense attorney was unaware of the terms of supervision for life in New Jersey as well and asked for additional time to review the provisions but was denied same. The matter was remanded for a determination of whether the Defendant would have pled guilty or exercised his right to a trial if he understood the community supervision provisions of his sentence. 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.

Jail Sentence For Driving Without A License

Armando Carreon was sentenced to both a custodial term and fined for driving without a license (N.J.S.A. 39:3-10). Carreon was initially charged with failure to obey a stop sign (N.J.S.A. 39:4-144) and driving without a license and pled guilty to driving without a license. At sentencing, the municipal court judge found this to be Defendant's third offense for the same infraction and imposed 10 days in jail. The Defendant sought post conviction relief and the Law Division rejected the Defendant's argument with regard to the statutory mandate of a fine or incarceration but not both under N.J.S.A. 39:3-10 and Carreon appealed. The NJ Appellate division reversed as the statute allows for "…a fine not exceeding $500 or imprisonment in the county jail for not more than 60 days, but if that person has never been licensed to drive in this State or any other jurisdiction, he shall be subject to a fine of not less than $200 and, in addition, the court shall issue an order to the commission requiring the commission to refuse to issue a license to operate a motor vehicle to the person for a period of not less than 180 days." The appellate judges reasoned that the statute was amended to provide a more harsh penalty for never-licensed drivers and reserving judicial discretion for the harsher option of imprisonment in both situations. Further, in reversing and remanding the matter, the appellate judges held that those sentenced under this statute would be subject to a fine or imprisonment but not both. Driving without a license in NJ carries serious penalties and should not be taken lightly. If you are charged driving without a license in NJ you should seek an experienced attorney immediately to protect your rights. For more information about traffic offenses, driving without a license, DUI, CDS in a motor vehicle or other municipal court charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney.

Veteran's Day

Remember, today is about remembering and thanking those who fought, and still fight, for OUR freedom every day. You may be enjoying a day off but there are thousands of men and women in the service protecting you who do not have a day off. They, and those who went before them, are in life-threatening conditions on a daily basis for our benefit and deserve our heartfelt thanks and praise. From The Darling Law Firm to all the men and women who have served our country....THANK YOU!

Aggravated Manslaughter Conviction Reversed Due To Error

Dwayne Slaughter was convicted of aggravated manslaughter (N.J.S.A. 2C:11-4), conspiracy (N.J.S.A. 2C:5-2) and aggravated assault (N.J.S.A. 2C:12-1) following the beating of his 79 year old neighbor, Roosevelt Morrow. The Defendant and Pritchard Watts both admitted to police they intended to enter Morrow's residence and rob him. Although the 2 men admitted they conspired to rob Morrow, they each blamed the other for his beating death. The Defendant's live-in girlfriend, Tanisha Day, gave police a taped statement which was presented to the jury at trial. Day's statement attributed an incriminating comment by using the term "he" but never indicated whether "he" implied Watts or Slaughter. However, Day did not testify and Defendant lost his opportunity to cross-examine her about her statement. Watts had taken a plea to first-degree robbery in exchange for his testimony at trial against Slaughter. There was no physical evidence indicating Slaughter was the actor. Slaughter appealed the conviction based on the admission of Day's statement. The NJ Appellate Division found that the admission of Day's statement was error but the error was harmless. The NJ Supreme Court found the error was not harmless as Day's statement could have implied either Watts or Slaughter and vacated the Defendant's conviction and remanded for new trial. If you are facing charges of murder, assault, or conspiracy you are facing severe penalties including as much as life in prison. When confronting criminal charges, it is imperative that you have experienced criminal defense counsel at your side to ensure you are afforded due process and your rights are protected. For more information about murder, assault or conspiracy in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Evidence Of Other Man's Semen Admissible In Sexual Assault Case

Bobby Perry was found guilty of second-degree sexual assault (N.J.S.A. 2C:14-2(c)(1)) and third-degree aggravated assault (N.J.S.A. 2C:12-1(b)(7)). He was sentenced to 8 years with an 85% parole ineligibility period under the No Early Release Act (N.E.R.A., N.J.S.A. 2C:43-7.2(a)) for the aggravated sexual assault and 4 years imprisonment for the aggravated assault. Additionally, Megan's Law (N.J.S.A. 2C:7-1 to -23) was applicable and Perry was sentenced to parole supervision for life. Perry and the victim were drinking together at his residence when he became angry with her and punched her in the mouth and told her to "sit on him". One of the Defendant's roommates returned from a party and he let the victim go. The victim said nothing while the roommate was in the room for some time. After the roommate left the room, the Defendant took the victim downstairs and tried to anally penetrate her, which she resisted, then performed oral sex on her before again trying to orally penetrate her. After this activity, the two returned to a room in the house and sat silently looking at her for some time. The Defendant then asked the victim what she was going to say happened to her face and she agreed to say that someone else had injured her. The victim later went to Maplewood Police Department, accompanied by her ex-boyfriend Mr. Wilkins, and Sergeant Guglielmo, upon seeing her injuries, called for an ambulance. At the hospital, Detective Fuentes of the Union Township Police Department met with the victim to give a statement. On the way to the police station, the victim showed Detective Fuentes where the attack occurred and identified Perry in a photo array. Officers appeared at the residence with a warrant and used a UV light to search for signs of bodily fluids or evidence of clean-up efforts but found nothing in the basement or bathroom and on a later date, the porch where only a small amount of blood was found on the back of a chair. The blood was later matched to the victim and semen was found in her clothing, however, no DNA found matched the Defendant. The Union County Superior Court Judge hearing State v. Perry denied Defendant's application to admit DNA evidence of another man's semen under the Rape Shield Law (N.J.S.A. 2C:14-7) finding that the presence of another man's semen had no bearing on whether consent was given to the Defendant and found the probative value of the evidence was outweighed by the prejudice referencing State v. Ryan, 157 N.J. Super. 121 (App. Div. 1978). Perry appealed on the basis that the evidence of other semen could indicate the possibility that the victim claimed she was raped to appease Wilkins, with whom she was in an on again, off again relationship. The Rape Shield Law was intended to protect the privacy of the victim while also ensuring defendants receive a fair trial. State v. Garron, 177 N.J. 147 (2003) State v. Budis, 125 N.J. 519 (1991) explained that the Rape Shield Law permits prior sexual history to prove another individual is the source of the semen or to negate force. The NJ Appellate Division determined the evidence of another man's semen in the victims clothes was necessary to put on a full defense as required under State v. Cotto, 182 N.J. 316 (2005). The probative value of the evidence, presented for the limited purpose of proving the victim was assaulted by Wilkins and lied to the police about who assaulted her, outweighed the potential prejudice. The appellate division reversed Perry's conviction and remanded the matter with the instruction that, should the evidence of another's semen be again proffered in the case, the trial court conduct a N.J.R.E. 104 hearing to determine admissibility of the evidence. 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.

Drug Distribution Conviction Reversed For Lack Of Probable Cause

Jermaine Wright was charged with possession of controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10a) and possession of CDS with intent to distribute (N.J.S.A. 2C:35-5). Wright's arrest was made by police in Trenton after Ewing Township detectives received a tip from a confidential informant that "Jazzz" was delivering CDS in Trenton in a specific vehicle. Initially the Ewing detectives followed up on the tip, verifying the vehicle and general location provided by the informant, but seeing no activity indicative of drug trade, then Ewing was dispatched to another call and passed the information on to Trenton detectives. Trenton detectives located the vehicle and approached on foot. Later testimony would conflict as to whether the officers guns were drawn as they approached the vehicle. The officer used flashlights to illuminate the occupied vehicle's interior and saw the occupants using a scale to measure a quantity of CDS, which they suspected to be cocaine. As the driver exited the vehicle, a large amount of money could be viewed plainly in the purse she left behind and a bag on the passenger seat was partially open leaving a significant quantity of cocaine in plain view. In State v. Wright, Defendant attempted to suppress the evidence claiming the officers' actions constituted de facto arrest without probable cause but the judge held that the stop was investigative in nature, of limited duration and of little intrusion upon the Defendant's liberty. The judge further held that the evidence initially seized was in plain view and the remainder was seized based on probable cause and under exigent circumstances. In spite of the motion judge's determination that Trenton officers parked their vehicle in a manner to prevent the defendants' exit and swift approach with guns drawn conveying the message they were not free to leave, the judge held the stop was not thereby converted to an arrest requiring probable cause. The Defendant's motion to suppress the CDS was denied and he entered a guilty plea to narcotics related offenses. The NJ Appellate Division referred to State v. Dickey, 152 N.J. 468, 475 (1998) in holding "the temporary detention of individuals during an automobile stop by police, even if only for a brief period and for a limited purpose constitutes a seizure. The Appellate Division also referenced State v. Gibson, ___ N.J. ___, (2014) in finding the judge below inaccurately utilized the reasonable and articulable suspicion standard for a stop rather than the probable cause standard required for an arrest. After a thorough analysis of warrantless seizure cases (State v. Pena-Flores, 198 N.J. 6 (2009), State v. Cooke, 163 N.J. 657 (2000) and State v. Mann, 203 N.J. 328 (2010)) and cases involving levels of police interaction (State v. Nishina, 175 N.J. 502 (2003), Terry v. Ohio, 392 U.S. 1 (1968), State v. Stoval, 170 N.J. 346 (2002), State v. Bernokeits, 423 N.J. Super. 365 (App. Div. 2011)) the appellate judges looked to further considerations including the duration of the stop, reasonableness, degree of the intrusion and the State's interest in the welfare of the public. The Appellate Division further reasoned that a reasonable articulable suspicion was required in this case but there were no particularized facts justifying the seizure. In fact, Trenton detectives testified they observed nothing giving rise to suspicion and approached the vehicle solely on the limited information provided by the Ewing Township detectives. The appellate division reasoned that the seizure of Wright was illegal as it was not supported by reasonable and articulable suspicion. Therefore, pursuant to State v. Smith, 155 N.J. 83 (1998), the appellate division reasoned the evidence obtained from the unlawful seizure must be suppressed and reversed the decision of the court below. Drug distribution charges are met with harsh penalties due to the public interest in deterrence. If you are facing charges for drug distribution or possession, there are multiple factors which may affect the ultimate outcome and an experienced criminal defense attorney will know how to protect your rights. For more information regarding drug distribution, possession, possession with intent to distribute or controlled dangerous substances (CDS) visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

DWI Acquittal When State Failed To Prove Operation Of Vehicle

Wardell Harvey was convicted of driving while intoxicated (DWI) contrary to N.J.S.A. 39:4-50. At sentencing, he was sentenced as a 3rd offender including jail for 180 days, 10 year loss of license, required an interlock device on his vehicle for 1 year following restoration of his driving privileges and fines. At his municipal court trial, the Defendant testified that he procured five 24oz cans of beer on the way to his doctor where he was to learn whether he required back surgery. He was stopped by Officer Clerico of the Somers Point Police Department on the way to his doctor for speeding and an illegal turn. The officer further testified that, during the motor vehicle stop on the way to the doctor's office, he detected no odor of an alcoholic beverage when speaking with Harvey. Upon arrival at the doctor's office, Harvey consumed less than 2 cans of beer in the parking lot while seated in his vehicle. Following his appointment, according to the defendant, he was anticipating the arrival of a Ms. Bowen who worked in a nearby building and to whom the vehicle belonged as she would be driving him home. Prior to his returning to the vehicle, after receiving a call from someone in the doctor's office about an intoxicated patient preparing to leave the office, police stopped Harvey to question him about driving under the influence. Officer Cunningham smelled alcohol on the Defendant's breath, observed an open beer in the cup holder of the truck Harvey drove and found the keys in the truck's ignition. Harvey admitted to consuming alcohol but denied any wrongdoing. Both sides believed that State v. Snyder, 337 N.J. Super 59, (App. Div. 2001) regarding post-operation consumption of alcohol was the controlling case. The municipal court judge decided the State had met its burden of proof as to evidence of operation in a preliminary Rule 104 Hearing. Ultimately the Defendant pled with the admission of consumption of alcohol but without admission of operation. In State v. Harvey, the Law Division judge, on trial de novo, held that the evidence was insufficient to support a conviction with regard to operation prior to the doctor's appointment but sufficient to support a conviction based on his intent to drive following his doctor's appointment under State v. Mulcahy, 107 N.J. 467 (1987). On appeal, it was held that the Rule 104 hearing was inappropriate and testimony elicited therein violated the hearsay rules. Additionally, the Appellate Division held that, under Mulcahy, Harvey could not be required to submit to Alcotest testing based on the belief that "[he would] operate a motor vehicle at some time in the near future." Finally, the State changing its argument from operation prior to the doctor's appointment in municipal court to constructive operation after the doctor's visit in the Law Division was fundamentally unfair and that "appellate courts affirm or reverse judgments and orders, not reasons" Isko v. Planning Bd. of the Twp. of Livingston, 51 N.J. 162, 175 (1968). The NJ Appellate Division reversed Harvey's conviction for driving under the influence (DUI) and remanded the matter to the Law Division for a judgment of acquittal. DWI is a very serious offense with substantial consequences including jail and loss of driving privileges which may result in loss of your job and other consequences. If you are facing DUI charges, you should obtain an experienced DUI defense attorney immediately. For more information about DUI, Driving While Intoxicated (DWI), underage DUI, drug DUI, controlled dangerous substance (CDS) in a motor vehicle or other serious driving infractions in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.