Attempted Murder Suspect Entitled To Fair Trial

Geraldo Rivera was charged with the attempted murder (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1)) of Sean and Michael Burns during a bar fight over Sean Burns' failure to tip the barmaid, Rivera's fiancée'. Sean Burns was left with four stab wounds to the torso and Michael Burns' was cut severely exposing his intestines. Rivera, who claimed self-defense, also suffered head wounds. Multiple witness accounts diverged considerably leaving the jury to decide which version was most plausible. At trial, the prosecutor utilized various methods, including PowerPoint to present the State's case. Rivera was ultimately convicted of second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)) on Sean Burns and fourth-degree aggravated assault (N.J.S.A. 2C:12-1(b)(3)) on Michael Burns. Rivera was sentenced to eight years in prison with a period of parole ineligibility under the No Early Release Act (N.E.R.A.)(N.J.S.A. 2C:43-7.2). On Appeal in State v. Rivera, Rivera challenged the conviction based upon the State's unfair trial tactics depriving him of the right to a fair trial. The NJ Appellate Division determined that the prosecutor's display of Rivera's picture on a slide with the word guilty on it and other overly suggestive acts including climbing into the jury box at one point while Rivera was seated at the prosecutor's table to operate a projector as if to indicate fear of the defendant deprived Rivera of a fair trial. If you are facing charges of murder you are looking at a sentence of 30 years to life and even for lesser included offenses the sentence can be the same as life in prison depending on your age at sentencing. When confronting such charges, it is imperative that you have experienced and trusted criminal defense counsel at your side to ensure you have the best chance possible in fighting the case and protecting your rights. For more information about murder, aggravated manslaughter, assault or weapons charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Assault conviction Reversed After Judge Wrongfully Changes Jury Verdict

Francene Oprihory (a.k.a. Oriphory) was indicted in the Superior Court of New Jersey, Bergen County, for aggravated assault by purposely, knowingly or recklessly causing injury to a Bergen County Sheriff's Officer (N.J.S.A. 2C:12-1b(5)(h)) and resisting arrest by using physical force or violence against another Bergen County Sheriff's Officer (N.J.S.A. 2C:29-2a(3)(a)). The charges arose when the court officers were removing the defendant from a matter wherein her friend was the defendant. The defendant was making comments and, after multiple admonitions by the officers, it became apparent that she would continue to disrupt the proceedings as long as she remained in the courtroom. After some minor difficulty removing Oriphory from the courtroom, Oriphory struck one of the officers once outside then tried to push the other over the fourth floor balcony railing when he attempted to handcuff her. Oriphory was then taken to the ground by both officers and continued to struggle in an effort to avoid being handcuffed. Following a jury trial, the jury announced a not guilty verdict on count one and guilty on count two. Oriphory also pled guilty to a violation of probation at sentencing based on the guilty finding. The trial judge, in spite of the jury's announced verdict, saw a check mark on the line for "guilty" on the verdict sheet for count one and after the jurors left the courtroom and sentenced the defendant to a concurrent four-year period of incarceration for count one. It is a well settled legal principle that the jury shall decide the guilt or innocence of a defendant. State v. Simon, 79 N.J. 191 (1979). A judge may not modify a verdict and may only act upon the verdict returned by the jury. State v. Black, 380 N.J. Super. 581 (App. Div. 2005) Once a verdict is accepted and the jury is discharged, the verdict may not be modified by the court. State v. Jenkins, 349 N.J. Super. 464 (App. Div. 2002). With regard to count two, a recording of the defendant's comments before and during the incident giving rise to the charges was played over and over for the jury based on the prosecutor's assertions that it was somewhat unclear and needed to be heard repeatedly and was then followed up by substantial witness testimony. There was also no consideration of N.J. R.E. 403 to determine whether the probative value outweighed the prejudicial value of the evidence, in addition to N.J.R.E. 402 and 404. The Appellate Division found this potentially deprived the defendant of a fair trial under the principles established by State v. Orecchio, 16 N.J. 125 (1954). On appeal, in State v. Oriphory, the NJ Appellate Division vacated the conviction for count one, reversed the conviction for count two and vacated the plea to the violation of probation as no longer having a supporting factual basis. The matter was remanded for a new trial in another vicinage in order to preserve the defendant's right to a fair trial. Assault and attempted assault charges are very serious and bear severe consequences. 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, illegal possession of a handgun, possession of a weapon for an unlawful purposed or other serious criminal charges in New Jersey, visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Man Charged With Aggravated Assault Was Deprived Of Right To Counsel

In State v. Kates, defendant Raymond Kates was charged with third-degree aggravated assault on a law enforcement officer (N.J.S.A. 2C:12-1b(5)(a)); third-degree resisting arrest by use of physical force or violence (N.J.S.A. 2C:29-2a(3)(a)); fourth-degree hindering prosecution by force (N.J.S.A. 2C:29-3b(2)); and fourth-degree inflicting harm to a law enforcement animal (N.J.S.A. 2C:29-3.1)) as well as various motor vehicle offenses following a 6 mile car chase. Defendant was represented by counsel but not the counsel of his choosing. On the opening day of trial, defendant's counsel advised the court counsel would be deployed overseas during the trial and objected to proceeding before allowing defendant opportunity to retain alternate counsel of his choosing. The trial court denied the request to adjourn without making adequate findings of fact regarding the request and Kates was convicted of eluding and resisting arrest. At sentencing Kates received an extended term as a persistent offender under N.J.S.A. 2C:44-3(a) as a result of prior indictable convictions including second-degree robbery, third-degree possession of controlled dangerous substances (CDS), second-degree sexual assault and endangering the welfare of a minor. On appeal the court looked to State v. Ferguson, 198 N.J. Super. 395 (App. Div. 1985) in making its determination. The Sixth Amendment entitles a defendant with private counsel to counsel of his choosing and does not require a showing of prejudice to defendant. In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) the United States Supreme Court decided that a defendant who does not need appointed counsel has the right to the counsel he or she believes to the be the best for his or her defense. However, the defendant's right is subject to a balancing test under the factors set forth in State v. Ferguson. Under Ferguson the court must consider the length of the requested delay; whether other continuances have been requested and granted; inconvenience to the litigants, witnesses, counsel and the court; and whether the requested delay is for legitimate reasons. The NJ Appellate Division determined the trial court's summary denial of an adjournment to retain private counsel without consideration of the Ferguson factors was a structural error which served to deprive the defendant of his right to counsel and required reversal. "Where the right to be assisted by counsel of one's choice is wrongly denied, therefore, it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants…" Gonzalez-Lopez, 548 U.S. at 148. If you attempted to avoid arrest because you believe you were wrongly accused, did not understand why you were being arrested or other similar reasons you can fight the charges against you. Due to the right of police to arrest citizens they believe to be involved in criminal activity, you should obtain experienced criminal defense counsel to assist you in your defense against these charges. For more information about eluding, assault on an officer, resisting arrest, hindering prosecution or other criminal charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.