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.

Refusal to Submit to DUI Breath Testing Receives Step-Down Sentence

Thomas Taylor was charged with driving under the influence (DUI)(N.J.S.A. 39:5-50) and pled guilty to refusal to submit to a breath test (N.J.S.A. 39:4-50.2). Taylor had been convicted of two prior driving while intoxicated charges, both of which occurred over ten years prior to the event in question. The municipal court judge sentenced Taylor as a third offender to a 10 year suspension and a $1000 fine. The defendant appealed. In State v. Taylor, Taylor used the misplaced argument that, pursuant to State v. Ciancaglini, 204 N.J. 597 (2011), which addressed the impact of prior refusal convictions to enhance subsequent DUI penalties. However, In re Bergwall, 85 N.J. 382 (1981), reaffirmed in State v. Frye, 217 N.J. 566 (2014), held that a prior driving while intoxicated conviction may be used in enhancing a sentence for a subsequent refusal conviction. Designed as punishment for driving under the influence, the penalties for refusal mirror those for DUI in that they increase with each subsequent offense. The statutes differ in that the DWI statute calls for a "step-down" in sentencing for each 10-year period in which a driver goes without a conviction for DUI, but the refusal statute does not include such a provision. This means that an individual convicted of DUI in 1990 who is convicted of a second DUI in 2001 would be again sentenced as a first offender in 2001. Likewise, a third DWI conviction occurring 10 or more years after a second conviction would subject the driver to sentencing as a second offender under the DUI statute, pursuant to State v. Revie, 220 N.J. 126 (2014). Taylor argued that his refusal should be sentenced under the terms of a second offender, as more than 10 years had elapsed since his prior offense. In State v. Fielding, 290 N.J. Super 191 (App. Div. 1996) the court addressed the matter of applying step-down sentencing to refusal conviction and determined that it was appropriate under the principal of fundamental fairness. After review, the matter was remanded for resentencing as a second offense including a significantly lower 2 year suspension and $500 fine. If you are facing charges of DUI or refusal, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about refusal, DUI, 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.