DUI Susupensions Do Not Call For Lenity

In State v. Rodriguez, five Defendants filed consolidated appeals after convictions of fourth degree operating a motor vehicle during suspensions for driving while intoxicated, N.J.S.A. 2C:40-26. The Defendants had all pled guilty to driving while suspended for driving under the influence, N.J.S.A. 39:4-50, were seeking to serve their sentences at night or on weekends and the judge agreed, giving two of them night sentences and the other three received weekend only sentences. The Appellate Division ruled that the sentences meted out were within the court’s discretion but that the 180 day noncontiguous sentence had to be served in blocks of 24 hours each to qualify for a “day served”. The Appellate Division’s decision included the fact that N.J.S.A. 2C:40-26(c) does not specify that the 180 days need be served consecutively, that there is no reduction in the total term of confinement and there was an effort to allow some lenity as long as there was no reduction in the deterrent effect of the sentence. The Supreme Court of New Jersey granted the State’s petition for higher appeal, 234 N.J. 314 (2018), as to whether sentences could be served intermittently and ultimately held that one sentenced to a statutory minimum term of 180 days for operating a motor vehicle while suspended for DUI must serve the entire term consecutively. N.J.S.A. 2C:40-26(c) calls for a “fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole.” The Supreme Court reasoned that when the Legislature wishes to leave discretion to the sentencing court, they normally indicate so clearly in the language of the statute. Further, the court indicated that the clear reference to a minimum 180 day period of parole ineligibility is a bar to serving the term intermittently. If you have been charged with DUI or driving while suspended for DWI, contact The Darling Law Firm, LLC now at 973-584-6200 to speak to a seasoned attorney and insure your rights are protected. For more information on driving while intoxicated or driving while suspended, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Revised Expungement Laws On The Way

Expungement (N.J.S.A. 2C:52-2) is a procedure that currently allows someone with a limited criminal history to obtain a fresh start. Along with the push to legalize recreational marijuana, a new bill intended to make it possible for those with “low-level” marijuana offenses to obtain a fresh start as part of the criminal justice reform press is waiting for the Governor's signature. The bill expanded from marijuana offenses, for which it creates an expedited procedure, to allowing the expungement of third and fourth degree controlled dangerous substances (CDS) offenses, which were previously not eligible for expungement. Additionally, the bill has a “cleanser” which permits formerly incarcerated persons to petition for expungement after 10 years without another offense. Currently, expungement is based on the notion that a person should not spend their lives paying for a mistake in judgment. The 10 year petition provision will allow those convicted of multiple crimes or a combination of one or more crimes and one or more disorderly persons of petty disorderly persons offenses to petition for expungement after 10 years from the date of the most recent conviction, satisfactory completion of probation or parole or release from incarceration, whichever is later. Additionally, although the completion of all terms and conditions of release will still apply, full payment of all fines will no longer be a pre-condition of petitioning for expungement as outstanding fines will be transferred to the Treasury for collection. Senate bill, S-3205, and Assembly Bill, A-4498 passed in June and it is anticipated the Governor will sign the Bill. If you are interested in obtaining and expungement and want to determine whether you are elligible, call 973-584-6200 or, for more information about expungement or other criminal law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Value of Evidence vs. Testimony in Prostitution Case

John R. Salyerds was arrested in 2016 in a hotel room and charged with engaging in prostitution as a patron in violation of N.J.S.A. 2C:34-1(b)(1) in State of New Jersey v. John R. Salyerds. Salyerds sought dismissal as police failed to preserve what he felt to be exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 87 (1963). Specifically, the State conducted a sting operation by posting internet ads soliciting individuals to call a specific phone number to set up a meeting with a prostitute. The State indicated the ad offered a “$50 short stay special” with the phone number the Salyerds called but the State failed to produce the advertisement. Salyerds maintained the contents of the ad were actually exculpatory and necessary if the State intended to rely on the contents of the ad as evidence that he engaged in prostitution. The prosecution maintained that the ad was not critical as they intended to rely on a recording of the defendant while at the motel to prove their case. Evidence produced at trial demonstrated that the Defendant called a telephone number associated with numerous similar internet ads placed by police as part of a sting operation to solicit individuals to come to a certain destination to meet a detective posing as a prostitute and asked for the “$50 special” and arranged to meet with the detective at a motel room. An audio recording was played in which the Defendant indicated he was there for the “short stay special” and the detective told him to put the money on the table at which time other detectives entered the room and arrested the Defendant. The specific content of the ads was not provided in evidence and the municipal judge prohibited testimony in that regard. The Defendant maintained that he did nothing and no contact occurred. The detectives testified that the money was not on the table prior to the Defendant entering the room and further testified as to what the “short stay special” was. After hearing all testimony, the municipal judge found the Defendant guilty. On appeal, Defendant argued that the prosecutor lied about the existence of material evidence, specifically the advertisement, and that the officer who testified as to the meaning of the “Short stay special” was not a qualified expert witness. The Defendant specifically included that, pursuant to State v. Nash, 212 N.J. 518 (2013), the prosecution is obligated to turn over all exculpatory evidence to the Defendant and that failure to provide same is a violation of the Defendant’s due process rights. Pursuant to State v. Martini, 160 N.J. 248 (1999), if the Defendant shows that the prosecution suppresses material information favorable to the Defendant, the prosecution commits a Brady violation. George v. City of Newark, 384 N.J. Super 232 (App. Div. 2006) indicates that suppression, not the absence or existence of bad faith, violates due process. Pursuant to State v. Mustaro, 411 N.J. Super 91 (App. Div. 2009), if the evidence is no longer available for the Defendant to use in demonstrating its value, the Defendant must establish bad faith on the part of the prosecution in destroying the evidence. The Appellate Division found no proof of bad faith or any exculpatory value in the missing advertisement. However, after significant review regarding what constitutes expert opinion, the Appellate Division did hold that the court erred in admitting the detective’s testimony as to what the “short stay special” meant. On those grounds, the Appellate Division vacated the conviction and remanded for a trial de novo in the municipal court without consideration of the detective’s opinion of the meaning of the short stay special or any specialized knowledge the judge may have of similar operations by the local police department. If you have been charged with a crime, your future is on the line. Visit DarlingFirm.com for information or call 973-584-6200 to set up a consultation and begin protecting your rights. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI + Refusal = Jail

James T. Dougherty was convicted, on February 4, 2009 of refusal to submit to chemical breath testing (N.J.S.A. 39:4-50.4(a) and on February 23, 2009, of driving while intoxicated (N.J.S.A. 39:4-50) . On August 19, 2015, 6 years later, he was convicted of DWI and, on November 9, 2015, he was convicted for refusal. Dougherty was later stopped, on December 19, 2015,while driving during the seven-month suspension period for the refusal (N.J.S.A. 2C:40-26(b)), a fourth degree crime for a second or subsequent DUI conviction. Dougherty ultimately pled guilty and, after receiving the statutory minimum 180 days incarceration, appealed based on the argument, he based on State v. Ciancaglini, 204 N.J. 597 (2011), that a charge of DWI or refusal could not be used to enhance the penalties of the other and that incarceration stemmed only from two convictions for driving under the influence or two convictions for refusal to submit to chemical breath testing. Dougherty also claimed the statutory language was ambiguous and required dismissal of his indictment. The appellate division cited to the strong public policy interest in addressing the damage caused by drunken drivers and found the statutory language to be unambiguous as to the fact that either two DUI convictions, two refusal convictions or one of each would meet the requirement of two predicate violations and trigger a period of 180 days incarceration. The appellate division read Ciancaglini to hold that "a defendant's refusal conviction cannot be considered a prior DWI violation for enhancement purposes" in sentencing under the DWI statute and found the decision to have no bearing on sentencing for driving during a period of suspension for DWI or refusal. Further, the appellate division looked to State v. Frye, 217 N.J. 566 (2014), reaffirming In re Bergwall, 85 N.J. 382 (1981) which held that a prior DUI conviction would serve to enhance the sentence for a subsequent refusal conviction. The matter of the number of years between the arrests and convictions was not addressed. The penalties for driving under the influence are severe including substantial fines, insurance surcharges, loss of license and often the loss of employment when you cannot drive to work. Each time you are convicted, the penalties get more harsh and you run the very real risk of jail time. If you are facing charges of DUI, refusal, CDS in a motor vehicle or driving while suspended for DUI or refusal, call the Darling Law Firm, LLC now for representation or visit DarlingFirm.com for more information. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI Repeat Offenders Will Be Punished Accordingly

Repeat DUI (N.J.S.A. 39:4-50) offenders may not serve weekend jail terms. Although it was determined by the N.J. Appellate Division on July 13, 2019, that those charged with multiple driving under the influence charges are ineligible for periods of incarceration over a length of time, many charged with such repeat offenses continue to believe the alternate sentencing in possible. State v. Grabowski, a 2006 case, held that periodic imprisonment was acceptable for multiple drunk driving offenses. Pedro Anicama, a Newark restaurateur convicted of his third DWI, was permitted by the Harrison Municipal Court to serve his sentence of incarceration by spending 2 days per week in jail so as to minimize the adverse effect of the incarceration on Anicama's business. On a trial de novo in the Law Division, the ruling of the Harrison Municipal Court was overturned and the Appellate Division affirmed the Law Division's ruling. The Appellate opinion, delivered by the Honorable George Leone, focused on the punitive intent of the Legislature in drafting the provisions of N.J.S.A. 39:4-51, which addresses violations of 39:4-50. The Appellate Division indicated the Legislative intent to allow work-release in limited situations for first and second offenders but to prevent third or subsequent offenders the opportunity to participate in work-release programs. If you are facing charges for DUI/DWI, reckless driving, careless driving, CDS in a motor vehicle or other serious motor vehicle charges, please visit us at DarlingFirm.com or call 973-584-6200 now to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Miranda Warnings Now Required When Parents Arrive at Police Station to See Minors

A minor involved in a second-degree aggravated assault was adjudicated delinquent based on his age. Two minors were stopped by police after reports indicated that two individuals fled the scene of a shooting on bicycles. As a minor, the charges of second-degree aggravated assault (N.J.S.A. 2C:12-1), attempted murder (N.J.S.A. 2C:11-3, 2C:5-1), possession of a firearm for unlawful purposes (N.J.S.A. 2C:39-4), unlawful possession of a weapon (N.J.S.A. 2C:39-5) and possession of a firearm gave rise to only a delinquency adjudication. Police took the minor to the station for questioning and he was not yet Mirandized when his mother showed up and asked A.A., in the presence of detectives, whether he was near the shooting. A.A. replied that he was and further added that it was “because they jumped us last week”. The trial court admitted the statement of A.A. to his mother as it was not the product of police interrogation. A.A. appealed the admission of the statement to his mother, along with other issues. The Appellate Division likened the situation to that of police using a parent to obtain a confession in violation of a juvenile’s rights, even if the police had not requested the mother ask the question and had no idea the mother would ask the question or that the juvenile would answer. The appellate division determined that the detectives should have known that a conversation between A.A. and his mother may produce an incriminating statement gave rise to the suppression of the statement in light of the fact that the police had not Mirandized the minor. The Appellate Division advised that, in such situations, the police should provide a mechanism for the minor and parent to confer privately and that, if officers are present during any discussions between a parent and minor, the minor should be Mirandized. For more information about delinquency charges visit DarlingFirm.com or call us today at 973-584-6200 to schedule a consultation. This blog is for informational purposes only and not intened to replace the advice of counsel.

A4292 is Protection for Car Dealers at Your Expense

Assembly Bill A-4292 came to my attention today. Although it is not one of the topics I typically write about, I feel it is important for people to understand this harmful legislation. Introduced in June 2018, this bill requires auto dealerships to notify buyers of recalls on used motor vehicles for sale. That part is ok but what comes next is not palatable for consumers. The second main feature of this Bill is the limitation on attorneys’ fees in consumer fraud actions against car dealers. My first thought was that the person pointing this out to me was an attorney who makes a good living representing consumers against car dealerships under the current statute which allows for treble damages and counsel fees. My second thought was of the individuals I have represented in consumer fraud actions against car dealers. Car dealers have attorneys representing them and it is just part of the cost of doing business. Car manufacturers also have big corporate attorneys who come in to represent them. First they bring the local “big guns” and then they bring in the real “big guns” from Detroit if they lose the summary judgment motion to get out of the case. Without the car manufacturer pressuring the dealership to settle, the dealership will fight to the end to protect their reputation in their territory at great expense to the defrauded consumer. Whether it is on a contingency fee basis or through the recovery of attorneys’ fees to pay back their litigation expenses, the provision for attorneys’ fees to the consumer under the Consumer Fraud Act is often the only way a consumer can afford to fight a car dealership when a car is not sound or when they are defrauded by a dishonest dealer. I have represented individuals who would have been left with a non-working vehicle and no way to fight if they did not have a reasonable degree of certainty they would recover counsel fees at the end of the case. A-4292 still provides for compensatory damages and does permit treble damages in certain instances but it limits attorney fees to “up to $1,000 or up to one third of the amount of damages awarded to the person in interest, at the discretion of the court…” What this could mean to a consumer is that if they purchased a vehicle that suddenly became inoperable and the dealership refused to repair it based on some limited liability theory, they could sue the dealership, and sometimes the car manufacturer, and the court may award them a replacement vehicle to make them whole after litigation. After fighting summary judgment motions against the dealership and the manufacturer’s “big guns” and then going through negotiations or trial, they can find themselves with a legal bill exceeding the value of the car that was replaced. If the consumer knows that they will get only $1,000 or even one third of the amount of damages awarded, that means that, unless they received a replacement vehicle and additional punitive damages award from the court, they may have a bill for legal fees that exceeds the value of the vehicle. In summary, A-4292 serves to limit the opportunity for the consumer to sue a car dealership or manufacturer and offers a layer of protection for dealerships exercising bad practices. There are other certain presumptions created under A-4292 that are favorable to the dealerships and adverse to consumers. The Consumer Fraud Act was created to protect you from bad practices of car dealers and others. To limit its scope is to diminish the bargaining power of the consumer. For more information about legal issues, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Strong Push for Municipal Court Reform

Municipal court reform in New Jersey has been a topic for some time as the municipal court system funnels large sums of money into towns from residents and often those passing through. Now Chief Justice Stuart Rabner is pushing hard to change the way business is done in municipal courts. The push includes the issue of municipal judge appointments as well, due to the belief that municipal court judges are often appointed based on political contributions they have made to the mayor's campaign. Some long-discussed matters have included consolidation of municipal courts, changing the appointment process for judges and separating the imposition of penalties from the collection of fines. One proposal is the creation of qualification committees in each county for the vetting of candidates for municipal judge. One proposal includes an evaluation by the vicinage judge presiding over municipal courts, a representative of the municipality where the judge would be seated and two members of the county bar association who practice in municipal court. the League of Municipalities has been outspoken about the loss of local perspective in court appointments. Those seeking reform have posed that towns submitting qualified candidates have nothing to fear from the reform. The Asbury Park Press and USA Today undertook and investigation into local court abuses, the report was a major catalyst for the reform movement. A panel has been assembled including prosecutors, public defenders and private defense counsel, judges, state agencies, public interest groups and members of each branch and layer of government. State Attorney General, Gubir Grewal hopes to improve the uniformity in municipal courts. If you are facing loss of license or significant fines in municipal court, 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, driving while suspended 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.

Anti-Bullying and Free Speech Separated By Unclear Line

A Hackettstown student used a derogatory comment for a police officer during a class discussion and under the State's Harassment, Intimidation and Bullying (HIB) policy, was suspended for one day after a hearing. The student then sued the school for violating her right to free speech. Additionally, in the suit, the practices of the school administration were called into question as, when discussing the matter with the student, school officials allegedly likened the student's comments to epithets regarding race and sexual orientation. The comments by the student were made during a discussion in school relating to police interactions with minorities. The HIB statues are broadly construed to include characteristics such as height, physical fitness and other characteristics not typically encompassed in workplaces and other settings where similar statutes are applied. The remark was made about a fictional officer and did not pertain to anyone present. One student present is the child of a police officer and found the comment offensive. The question at hand is whether a student may express their views when other students may find those views hurtful or insensitive to the degree that they would violate the HIB statutes. Although an argument could be made that HIB statutes may be misused to punish political speech by students, such an argument could be made only after the speech, political or otherwise, was found offensive by another student or the administration. The within matter, a hostile education environment claim under Title VI of the Council Rights Act of 1964, claiming violations of the First Amendment and ther Law Against Discrimination remains pending in federal court. This is not the first time that New Jersey's Anti-Bullying Bill of Rights Act has conflicted with freedom of speech rights. Courts have found mixed results in these cases including throwing out a suit by a teacher who was reprimanded for a violation and upholding the schools right to suspend a student who posted on social media about school related matters. In denying a motion to dismiss, filed by Hackettstown School District, U.S. District Court Judge found merit in the student's claims of infringement of her rights and claims against the administration for creating a hostile environment. Others find the statute to be much more clear and believe that if the harassment, intimidation and bullying statutes apply, then the First Amendment protections claimed by the student must yield to the statute. A significant prong in the analysis is whether the behavior in question actually touches the school. Due to claims of vagueness, new regulations relating to the HIB statute were adopted by the NJ State Department of Education which afforded greater discretion to principals but some believe greater clarification is required regarding the intersection of anti-bullying laws and the First Amendment. If your child has been bullied and it is not being taken seriously or your child is accused of violating anti-bullying statutes, visit DarlingFirm.com or contact us for assistance.

Judge Charged With DUI is Censured

Municipal Court Judge Wilfredo Benitez attempted to talk his way out of a driving under the influence arrest by wielding the power of his office. Now Benitez is barred from presiding over DUI matters until September 7, 2019, although he remains a municipal court judge in East Orange and Belleville. Benitez was arrested in November 2016 when found by New Jersey State Troopers asleep in the driver’s seat of his vehicle on Route 80 West in Teaneck. Upon investigation, Benitez was found to possess bloodshot and watery eyes and the odor of an alcoholic beverage on his breath. After field sobriety tests, the Judge was placed in handcuffs and became belligerent, telling officers that he is a Judge and they were wasting their time. The Advisory Council on Judicial Conduct (“ACJC”) filed a complaint due to Benitez representation that he was a Judge to win favor with the police. The ACJC found mitigating factors in that there was no prior history of such behavior in a lengthy career and aggravating factors in Benitez’ insulting language and efforts to degrade the Troopers. The result was the censure of Wilfreo Benitez and a temporary bar from presiding over DWI matters. DUI Charges in NJ will have a serious impact on your life no matter who you are and they can have significant implications in related matters. If you are charged with Driving Under the Influence in NJ, you should seek an experienced attorney immediately to protect your rights. For more information about DUI, reckless driving 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.

Prosecutorial Discretion vs. Decriminilization of Marijuana

N.J. Attorney General Gurbir Grewal issued a directive permitting prosecutorial discretion in “minor” pot cases, but cautions against ideas of decriminalization. According to the Attorney General, prosecutors who find evidence lacking or special circumstances which would make sentencing too harsh have discretion to dismiss cases involving use or possession of small quantities of marijuana. Grewal has been meeting with civil rights groups, prosecutors, members of law enforcement, attorneys and multiple community organizations, presumably to determine what the best middle ground is to satisfy the outspoken. At the same time, the Legislature continues to move toward legalization of marijuana for recreational use. Not knowing when the Legislature will take action, the Attorney General determined that pending matters could not be stayed indefinitely. Grewal’s directive will yield to the decision of the Legislature once action is taken. As it stands, he has battled against prosecutors ceasing marijuana prosecution no matter the circumstances. The Attorney General does not support vesting individual prosecutors with Legislative powers but he does support prosecutorial discretion. Factors cited by Gurbir Grewal as requiring consideration in the decision of whether to prosecute or dismiss marijuana charges include the Defendant’s criminal record, impact on future employment and professional licensing, age, impact on immigration status, whether future educational opportunities would be impacted and adverse consequences with regard to the defendant’s family or public benefits including housing. The criteria set forth would permit discretion in nearly every matter. Following Grewal’s directive, the American Civil Liberties Union issued a statement calling for legalization based on the apparent limitations of the directive and likelihood for disparity. Drug Charges in NJ will have a serious impact on your life and can have significant implications in related matters. If you are charged with a drug crime in NJ you should seek an experienced attorney immediately to protect your rights. For more information on CDS in a motor vehicle, reckless driving or possession matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

One and One Make Two in DUI

James Dougherty was charged with violating N.J.S.A. 2C:40-26(b) for driving while suspended for a second or subsequent conviction or plea to driving while intoxicated (N.J.S.A. 39:4-50) or refusal to submit to chemical breath testing (N.J.S.A. 39:4-50.4(a)). Dougherty, seeking to avoid mandatory jail time, took the position that 2C:40-26(b) required conviction for two charges of refusing to submit to chemical breath testing or convictions for two charges of driving under the influence while Dougherty had only one conviction of each. In August 2015, the Defendant was convicted of DWI for a charge stemming from a February 23, 2009 arrest and was convicted of a refusal in November 2015, for a charge stemming from and arrest on February 4, 2009. While serving the seven month sentence for the refusal charge, the Defendant was stopped by the police while operating a motor vehicle. Dougherty was sentenced to a mandatory term of 180 days in jail, which term was stayed pending appeal. Defendant, relying on State v. Ciancaglini, 204 N.J. 597 (2011), argued that a "second or subsequent violation" under N.J.S.A. 2C:40-26(b) requires two convictions of the same predicate offense, rather than one of each. The Appellate Division found that State v. Ciancaglini does not address the issue head on. However, State v. Frye, 217 N.J. 566 (2014), reaffirms In re Bergwall, 85 N.J. 382 (1981), holding that a prior DUI does enhance a sentence for a refusal conviction. Additionally, the legislative history of the DUI statutes is centered upon the premise of discouraging driving under the influence by including ever increasing penalties for successive offenses. The Defendant's basic premise, from State v. Olivero, 221 N.J. 632, 639 (2015) and In re Estate of Fisher, 443 N.J. Super. 180, 190-195 (App. Div. 2015), that the word "or" should be interpreted as "or" rather than "either/or" is incorrect. When considered in the framework of the history and evolution of DWI laws, becoming ever stricter, there is no question as to the interpretation of the statute to include the word "either". The Appellate Division affirmed the defendant's conviction. 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.

Juvenile's Waiver of Miranda Rights Upheld

D.N., was a 16 year old juvenile when charged with offenses that, if committed by an adult would include second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)); possession of under 50 grams of marijuana (N.J.S.A. 2C:35-10(a)(4)); defiant trespass (N.J.S.A. 2C:18-3(b)) and obstructing the administration of law (N.J.S.A. 2C:29-1(a)). Police responded to a caller saying that D.N. entered a grocery store after being notified he was not permitted to do so and, during a search, located and seized suspected marijuana from D.N.’s person. In the presence of his mother, at the police station, D.N. was read his Miranda rights and invoked his right to remain silent. Weeks later, D.N.’s mother contacted police and advised them that she had found a handgun in a backpack in her residence and, upon their arrival, consented to a search of the backpack. D.N. was taken for questioning upon returning home. The “Juvenile Miranda Warning” form was used to advise D.N. and his mother of D.N.’s rights under Miranda and D.N. and D.N. agreed to speak to the police. D.N. ultimately confessed to that he had made a deal with a gang member wherein he would be paid to deliver the gun to a third party. D.N. moved to suppress the confession and the judge held that D.N. knowingly and voluntarily waived his rights as he had exercised those rights only weeks earlier. In State of New Jersey in the interest of D.N., D.N. pled guilty to second-degree unlawful possession of a handgun, possession of under 50 grams of marijuana, defiant trespass, and obstructing the administration of law and, pursuant to a plea agreement, the State dismissed the weapons charges. D.N. was sentenced to 2 years probation, community service, drug evaluation and participation in a residential treatment program among other conditions. D.N. appealed the denial of his suppression motion. The New Jersey Appellate Division held that the “suspect’s will was not overborne by police conduct” as is the test under State v. Presha, 163 N.J. 304, 313 (2000). Pursuant to State in the Interest of A.S., 203 N.J. 131, 147 (2010), the presence of D.N.’s mother was given considerable weight in favor of voluntariness of the confession as well. In light of prior opinions and the fact that D.N. had knowingly invoked his right to remain silent only weeks prior, the Appellate Division affirmed the decision of the trial judge. If a juvenile is charged with a crime, the disposition of the charges can change his or her future by prohibiting them from entering certain schools, fields of employment and, in the case of Megan's Law offenses, certain residences or neighborhoods. It is critical for any juvenile charged with a criminal offense to seek an experienced juvenile defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, weapons offenses, possession of marijuana, trespass or other criminal charges in NJ, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Robbery Trial 2 Years After Arrest and Right To Speedy Trial

Antonio Jones was convicted of first-degree robbery (N.J.SA. 2C:15-1) and fourth-degree obstructing the administration of law (N.J.S.A. 2C:29-1) in the Superior Court of New Jersey, Law Division. Jones was sentenced to an extended term including life without parole with the sentence for obstruction to be served concurrently. Jones appealed based on the denial of his motion to dismiss based on failure of the State to uphold his right to a speedy trial under the 6th Amendment of the United States Constitution and Article 1, Paragraph 1 of the N.J. Constitution. Jones was arrested in February 2012. In spite of defendant’s repeated requests for the State to provide discovery, the State failed to comply and the matter was delayed. In September 2012, Jones filed a speedy trial motion. In December 2012, the trial judge ordered the State to comply with discovery demands. In February 2013, the state still had not complied and Jones again filed a speedy trial motion. The Superior Court records indicated that the motion was denied in August of 2013 but without reasons set forth. The Superior Court judge merely ordered that no trial would occur until discovery was completed and a trial date was set for February 2014, 2 years after Jones was arrested. As 18 months had already elapsed when the Defendant renewed his speedy trial motion, the N.J. Appellate Division remanded the matter to the Superior Court for a review of Jones’ speedy trial motion under the 4 factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2181, 33 L. Ed. 2d 101 (1972). Under Barker, the balancing test, applied in State v. Cahill, 213 N.J. 253 (2013) includes: (1) the length of the delay; (2) the reason therefor; (3) the defendant must assert his or her right to a speedy trial; and (4) any prejudice suffered by the defendant as a result of the delay. In Cahill, the N.J. Supreme Court considered 1 year as the amount of time triggering further inquiry under the factors set forth in Barker. First-degree robbery is a very serious charge that carries substantial penalties including up to 20 years in prison. The State has to remain within the confines of the law in collecting evidence, your arrest, and presenting evidence and testimony against you. If you have been charged with robbery it is critical you obtain experienced criminal defense counsel to fight for your rights each step of the way. For more information regarding robbery, theft, weapons, distribution and other serious crimes in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI Charges Follow Without Miranda After Accident

John Martens was charged with driving while intoxicated (DWI) (N.J.S.A. 39:4-50) after attempting to walk away from his burning vehicle. A passerby reported a vehicle fire and that the vehicle’s driver was attempting to leave the scene. The vehicle had damage to the driver’s side, flat tires and the airbags had been deployed. Investigating officers found only one person in the area who was swaying as he was walking away from the vehicle. The individual admitted he was the vehicle’s owner and that the vehicle struck the median. While speaking with Martens, officers noted his speech was slurred and eye movements were slow. They administered field sobriety tests (FSTs) and arrested Martens. Later, an Alcotest was administered and Marten’s blood alcohol content (BAC) was determined to be .17%. Martens was charged with DUI, reckless driving (N.J.S.A. 39:4-96); failure to maintain lanes (39:4-88); and abandoning a vehicle (N.J.S.A. 39:4-56.6). Among other motions, Martens sought to suppress statements to the officers prior to his arrest based on the fact that he was not read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The suppression motion was denied and Martens entered a conditional guilty plea to driving under the influence, reserving his right to challenge the denial of the suppression motion on appeal. Martens was sentenced as a 3rd time offender and received a 180 day jail sentence, 10 year suspension of his driving privileges, 1 year ignition interlock requirement, 12 hours in the Intoxicated Driver Resource Center as well as fines and surcharges. In State v. John Martens, the New Jersey Superior Court, Law Division, denied Martens’ suppression motions, found him guilty based upon his plea in the municipal court and imposed the same sentence as the municipal court. Martens appealed to the N.J. Appellate Division. Miranda warnings must be administered when a custodial interrogation occurs wherein the suspect has been deprived of freedom in a significant way. State v. Timmendequas, 161 N.J. 515, 614 (1999). Police need not administer Miranda warnings during routine traffic stops. Berkemer v. McCarthy, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 31 (1984); State v. Ebert, 377 N.J. Super. 1 (App. Div. 2005). Martens was asked a limited number of questions and was not subject to the equivalent of an arrest prior to being Mirandized by the officers following the FSTs. The decision of the N.J. Superior Court was affirmed. If you are charged with DUI, you are facing substantial penalties beginning with up to 1 year loss of driving privileges for a first offense up to a maximum of a 10 year loss of driving privileges and 180 days in jail for a third offense. In addition, you face the possibility of losing your job, certain professional licenses and the social stigma that comes with DUI. You need the assistance of an experience defense attorney and should not face these charges without one. For more information about driving while intoxicated, reckless driving, driving while suspended or other serious motor vehicle offenses in New Jersey visit DarlingFirm.com. This Blog is for informational purposes and not intended to replace the advice of an attorney.

Bat Used in Assault Suppressed After Illegal Police Search

Kenneth Barbour was arrested for aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)), resulting from an alleged assault on his neighbor. Upon arriving at the scene, police were told by the bloody victim, that his neighbor used a black baseball bat to strike him in the head following a verbal dispute. Police indicated they used a patrol car loudspeaker to command Barbour to exit his residence as he was thought to have outstanding warrants and possibly weapons in his possession. An individual ultimately exited the residence and was arrested approximately 20 feet from the residence. Police, not having a photo of Barbour and unsure he was the man who exited the residence, entered the residence to conduct a search of the premises for others. The trial court denied Barbour's motion to suppress, and other relief requested, holding that the actions of the arresting officers were legitimate as part of a protective sweep of the residence. Following a jury trial, Barbour was convicted of fourth degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(d)) and sentenced to 2 years probation. In State v. Barbour, the defendant challenged several aspects of the trial court's decision, including the denial of his motion to suppress the bat alleged to have been used as the weapon in the assault. The Fourth Amendment of the United States Constitution and Article I of the New Jersey Constitution guarantee the right to citizens to be free from unreasonable search and seizure unless certain very narrow exceptions apply. State v. Maryland, 167 N.J. 471 (2001). The New Jersey Appellate Division held that a protective sweep must be limited to "areas in a defendant's immediate control." Such a sweep is valid only when there is (1) a legitimate reason for the officers presence in the residence; and (2) officers have a reasonable suspicion that there is a dangerous individual hiding in the area to be swept and that the burden of proving these circumstances existed is on the State. State v. Davila, 203 N.J. 97 (2010). In light of the evidence and testimony presented that the Defendant was outside when arrested and there was no reasonable articulable suspicion that another dangerous individual was inside the residence, the N.J. Appellate Division found the search and seizure to violate the Defendant's right to be free from unreasonable search and seizure and reversed the denial of the motion to suppress. Assault and attempted assault charges are very serious and bear severe consequences including incarceration, the inability to obtain employment and certain licenses, and social stigma associated with such problems. 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, unlawful possession of a weapon, 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.

Juvenile's Excited Utterance Admissible Under Hearsay Exception

State of New Jersey In the Interest of A.R. involved a 14 year old juvenile found guilty of touching a 7 year old child, J.C., sexually on a school bus, a crime that would constitute second-degree sexual assault (N.J.S.A. 2C:14-2(b)) if committed by an adult. J.C. was diagnosed with autism and ADHD. Upon exiting the bus, which was returning the children from summer camp, J.C. exclaimed that A.R. had touched him. There were 20 children on the bus and no witnesses to the alleged act. J.C. repeated his statement to a detective days later. The trial judge from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County court found that the exclamation upon exiting the bus and statements during the detective's interview were admissible under the "tender years" exception to the hearsay rule (N.J.R.E. 803(c)(27)). At the bench trial in the, the court found J.C. incompetent to understand the proceedings and offer testimony but did accept J.C.'s testimony based on N.J.R.E. 803(c)(27). On appeal, the N.J. Appellate Division determined that the statements to the detective were testimonial in nature, under Crawford v. Washington, 541 U.S. 36 (2004), and A.R.'s counsel was not able to protect the confrontational rights of the 14 year old through cross-examination due to the incompetence of J.C. The Appellate Division held that the exclamation upon exiting the bus was not testimonial in nature and remanded for reconsideration. If a juvenile is charged with a crime, the disposition of the charges can change his or her future by prohibiting them from entering certain schools, fields of employment and, in the case of Megan's Law offenses, certain residences or neighborhoods. It is critical for any juvenile charged with a criminal offense to seek an experienced juvenile defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, sex-offenses, Megan's Law provisions or other criminal charges in NJ, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sexual Assault Was Apparent To Judge But Sentencing Not As Obvious

Marvin Flores-Gamez was indicted for first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(1)); 2 counts of second-degree sexual assault (N.J.S.A. 2C:14-2(b)); and third-degree endangering the welfare of a child by engaging in sexual conduct with the victim (N.J.S.A. 2C:24-4(a)). In 2011, the Flores-Gamez contacted 12 year old Susan on Facebook, when Flores-Gamez was 19. Susan and Flores-Gamez traded messages on Facebook for some time before he began to mention the idea of having sex with her. In November 2011, Susan agreed to meet Flores-Gamez, with Susan's cousin, Kate, and Kate's boyfriend, Tim, present. The 4 went to Susan's house and the men gave the children juice that tasted like alcohol. Flores-Gamez and Susan ended up alone together in the bedroom and, when Susan resisted his advances, Flores-Gamez removed her clothes and began to have sex with her. When he refused to stop, Susan bit Flores-Gamez on the hand to make him stop. For the next 5 days, Susan and Flores-Gamez exchanges messages on Facebook until Susan's father discovered Susan had missed school and, during the subsequent inquiry, learned what had happened. Susan's father took her to the police station and, during an investigation, Flores-Gamez provided a statement with facts similar to those Susan provided. At trial, the Defendant did not testify. Both Tim and Kate testified that the Defendant and Susan were never alone together and that the Defendant did not sexually assault Susan. A psychologists report was also offered to show that Susan had indicated Tim's mother was also in the apartment and was the one who stopped the sexual assault. Following a trial in the Superior Court of New Jersey, Law Division, Bergen County, Flores-Gamez was found guilty of 2 counts of second-degree sexual assault. Flores-Gamez was sentenced to a concurrent 8 year term for both counts, subject to an 85% parole disqualifier under the No Early Release Act (N.E.R.A.) (N.J.S.A. 2C:43-7.2). In State v. Flores-Gamez, the defendant appealed. The N.J. Appellate Division affirmed the decision of the trial judge except defendant's sentence. The Appellate Division held that the trial judge did not follow proper procedure with regard to sentencing. The judge listed the aggravating and mitigating factors, without making any specific findings in regard thereto, and then meted out the sentence. The judge found aggravating factors one and two; however, the victim's age was an element of second-degree sexual assault and could not be considered. Also, the trial judge failed to give any indication that the mitigating factors raised by the defendant were considered. The Appellate Division remanded for resentencing. 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.

No Right To Own Firearms If Determined A Danger To The Public Health, Safety and Welfare

Firearms purchaser identification cards and purchase permits may be denied in the event of danger to the "public health, safety and welfare" pursuant to N.J.S.A. 2C:58-39(c)(5) of the New Jersey Gun Control Law. In 1998, Z.L. was acquitted of a domestic violence charge. Between 2003 and 2011 the police were called to the residence of Z.L. and his wife on five separate occasions for domestic violence issues. In 2013, Z.L applied for a gun purchase permit and the police chief denied the application in light of the prior history of domestic violence. The matter was tried and a Monmouth County Superior Court Judge determined that the permit should not be granted. On appeal, the N.J. Appellate Division held that Z.L. has demonstrated the propensity to react violently and that the presence of a firearm in such a situation has the potential for great harm and no permit should be issued to him. For more information about gun laws in New Jersey including obtaining a gun permit, possession of illegal weapons, unlawful possession of a weapon, regulations on BB guns and paintball guns and other weapons offenses visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Domestic Violence Charge Leads To More After Audio Recording

Kingkamanu Nantambu was arrested for domestic violence when police responded to a 911 call and his girlfriend, Crystal Aikens, reported he had threatened her with a gun. Nantambu reported that Aikens had threatened him with a knife and required medical treatment for multiple cuts. When a search of his apartment revealed a handgun hidden under a bed, he was also charged with weapons offenses. Finally, Aikens reported that Nantambu offered her money in exchange for more favorable testimony and was charged with bribery of a witness (N.J.S.A.2C:28-5(d)) and witness-tampering (N.J.S.A.2C:28-5(a)). Aikens agreed to allow police to record a telephone conversation between herself and Nantambu. After approximately 8 minutes of the conversation took place another call came in which Aikens took then resumed the call with Nantambu. Shortly after the call with Nantambu was resumed, the recording was cut off. By the time detectives reconnected the recording device, the call ended. In State of New Jersey v. Kinkamau Nantambu, 221 N.J. 390 (2015), Nantambu sought to exclude the recording as unreliable. The New Jersey Superior Court judge hearing the case granted the motion to suppress the recording of two conversations between Aikens and Nantambu. The State appealed. State v. Driver, 38 N.J. 255 (1962), State v. Dye, 60 N.J. 518, 531, cert. denied, 409 U.S. 1090, 93 S. Ct. 699, 34 L. Ed. 2d 675 (1972), and State v. Cusmano, 274 N.J. Super. 496, 517 (App. Div. 1994), inform that the omission of a portion of a conversation does not require exclusion of the entire conversation. In Driver, the court established a test for the admissibility of audio recordings which set forth 5 criteria: (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement. The N.J. Appellate Division held that, under precedent, including the test set forth in Driver, the recording was admissible and reversed the decision of the N.J. Superior Court. Domestic violence is a very serious charge in New Jersey and the need to deter would be abusers has resulted in escalating penalties over time. If you are charged with domestic violence or are seeking a final restraining order against an abuser, you will find yourself in the position of proving or disproving the charges. It is 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.