Aggravated Assault Results In Miscarriage

Laquesha Cathcart and Tisha Cathcart were indicted for second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)), second-degree burglary (N.J.S.A. 2C:18-2), first-degree robbery (N.J.S.A. 2C:15-1), and fourth-degree theft by unlawful taking (N.J.S.A. 2C:20-3(a)) after forcefully entering the victim's apartment following a dispute over a parking spot in New Brunswick, NJ. The Cathcarts assaulted R.L. and J.D., her daughter, in the presence of R.L.'s husband, F.D., and son. R.L.'s daughter and son both advised the defendant's that R.L. was pregnant but they continued the assault. R.L. miscarried within the week. The main issue in this matter is whether the defendants purposely or knowingly attempted to cause serious bodily injury to R.L. The trial court granted the defendant's motion to exclude testimony relating to R.L.'s pregnancy and miscarriage after determining the probative value of the evidence was substantially outweighed by the likelihood it would prejudice the jury against the defendants. The appeal in State v. Cathcart focused on the exclusion of the evidence. N.J. As affirmed in State v. Buckley, 216 N.J. 249 (2013), N.J. Rule of Evidence 403 permits a court to exclude evidence in the event the prejudicial value outweighs the probative value. More than a possibility of substantial prejudice is required State v. Swint, 328 N.J. Super. 236 (App. Div.), cert. denied, 165 N.J. 492 (2000). To exclude evidence, the party seeking exclusion must demonstrate that the evidence is has such "inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation." State v. Thompson, 59 N.J. 396, 421 (1971). A significant consideration in the decision to exclude evidence is also whether other evidence is available to prove the fact the evidence is offered to prove. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2014). Exclusion of certain evidence, such as motive in a criminal matter, requires a higher showing of prejudice. State v. Rogers, 19 N.J. 218 (1955). Conviction for aggravated assault requires proof by the prosecution that each defendant acted with the requisite state of mind or, under circumstances manifesting extreme indifference to human life, acted recklessly in an attempt to cause or did cause such bodily injury pursuant to N.J.S.A. 2C:12-1(b)(1). State v. Mingo, 263 N.J. Super. 296 (App. Div. 1992), rev'd. 132 N.J. 75 (1993). This requires proof of the defendant's mental state at the time of the assault. The State's appeal centered on the fact that the defendants were advised that R.L. was pregnant yet continued with their assault which included kicking and punching R.L. in the abdomen. In its decision to reverse in part and affirm in part, the N.J. Appellate Division determined that the statements regarding R.L.'s pregnancy were highly relevant to the issue of the defendants' mental state but that the testimony regarding the miscarriage was overly prejudicial. Aggravated assault charges are very serious and bear severe consequences including 5 to 10 years in prison, with an 85% parole disqualifier under the No Early Release Act (NERA), and fines of up to $150,000. 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, robbery, burglary, theft 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.

Weapons Offense Merges Into Burglary Charge

Sherrone Robinson was charged with third-degree conspiracy to commit aggravated assault (N.J.S.A.. 2C:5-2; 2C:12-1); second-degree conspiracy to commit burglary (N.J.S.A. 2C:5-2, 2C:18-2); second-degree burglary (N.J.S.A. 2C:18-2); second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a); second-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b); second-degree possession of a weapon by a convicted person (N.J.S.A. 2C:38-7); fourth-degree aggravated assault (N.J.S.A. 2C:12-1b(4)); and third-degree hindering apprehension (N.J.S.A. 2C:39-3b(1)). Robinson pled guilty to second-degree burglary and second-degree possession of a weapon for an unlawful purpose in exchange for dismissal for the other charges. For the burglary the state recommended a 4 year prison term and concurrent 5 year term for the weapons offense. The burglary offense was subject to an eighty-five percent parole ineligibility period under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2) while the weapon offense carried a mandatory minimum term of three years pursuant to the Graves Act (N.J.S.A. 2C:43-6(c)). In State v. Robinson, Robinson later appealed the sentence arguing that the weapon possession was for the purpose of the burglary and should be merged therewith rather than included as a separate conviction and offense. In making his argument for merger, Robinson relied on State v. Tate, 216 N.J. 300, 302 (2013) (citing State v. Davis, 68 N.J. 69, 77 (1975)), which held that an accused committing a single offense cannot be punished as if they committed more than one offense. State v. Messino, 378 N.J. Super. 559, 585 (App. Div. 2005) provided an alternative analysis of N.J.S.A. 2C:1-8, regarding merger of offenses, which suggested a more "flexible approach" to merger wherein the elements of the crimes are considered. In State v. Diaz, 144 N.J. 628, 636 (1996), the court held that "when the only unlawful purpose in possession the [weapon] is to use it to commit the substantive offense, merger is required." The NJ Appellate Division reviewed the record and noted that defense counsel stated the prison terms as set forth in the plea agreement, the judge then reviewed those terms with the defendant on the record and the defendant indicated a full understanding thereof. The Appellate Division decided that the defendant received the benefit of the plea bargain as his counsel negotiated the plea bargain with the State on his behalf. The Appellate Division remanded the matter for correction of the judgment of conviction to reflect merger of the convictions and a sentence of 5 years total of which 4 were subject to an 85 percent parole disqualifier under NERA. Burglary charges are not often lightly sentenced as they involve the possibility of great physical harm when the intruder and the owner or dweller accidentally meet and both act in fear. If you are facing burglary charges, you should seek experienced criminal defense counsel immediately. For more information about burglary, weapons, assault, theft, robbery 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.

Drug Addicted Defendants No Longer Denied Admission To Drug Court For Weapons Charges

Over the rejection of the prosecution, Gregory Maurer sought entry into Drug Court while under separate indictments for (1) third-degree possession of a controlled dangerous substance (CDS) (ocycodone) (N.J.S.A. 2C:35-10(a)(1)); (2) two counts of third-degree possession of CDS (oxycodone and heroin) (N.J.S.A. 2C:35-(a)(1)); (3) third-degree possession of CDS (cocaine) (N.J.S.A. 2C:35-10(a)(1)); and (4) two counts of third degree theft by unlawful taking (N.J.S.A. 2C:20-3(a)) and third-degree burglary (N.J.S.A. 2C:18-2(a)(1)). The prosecutor’s denial was based solely on Maurer’s prior charge for possession of a handgun (N.J.S.A. 2C:39-5(b)) and hollow point bullets. The trial court made its decision based on the defendant’s prior conviction for a weapons related offense and Maurer appealed. In State v. Maurer, the NJ Appellate Division determined that the defendant’s record, the “Manual for Operation of Adult Drug Courts In New Jersey” (July 2002)(Manual) and the Drug Court Statute (N.J.S.A. 2C:35-14). The NJ Appellate Division did consider that Maurer had also been charged with witness tampering (N.J.S.A. 2C:28-5) and other prior CDS charges which were remanded to the respective municipal courts for disposition. They also considered Maurer’s participation in Narcotics Anonymous and other substance abuse counseling programs as well as his employment as an outreach counselor at a rehabilitation facility. The NJ Appellate Division considered that Drug Court is appropriate for “offenders most likely to benefit from treatment and do not pose a risk to public safety.” State v. Meyer, 192 N.J. 421, 428-29 (2007) (quoting Manual, Supra, at 3). The opinion also included a thorough review of Drug Court success rates and the Legislative intent to end the cycle of drug offenders interacting with the criminal justice system as a result of addiction. State v. Bishop, 429 N.J. Super. 533, (App. Div.), 216 N.J. 14 (2013). There was also discussion of a two “track” system wherein, according to the Manual, a criminal history involving a firearm acts as a bar to admission in spite of the apparent Legislative intent to increase Drug Court access for those likely to benefit from resolving addiction issues. The Court resolved that an amendment to the Track Two admission criteria was required and remanded the matter for consideration of the defendant’s application to Drug Court despite his prior weapons offense. If you are facing distribution or possession charges, there are many factors which may affect how your case is ultimately resolved. You should immediately retain experienced criminal defense counsel to protect your rights. For more information regarding drug distribution, possession with intent to distribute, weapons offenses or 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.

Acquittal Of Burglary And Arson But 6-year Sentence For CDS

Michael Naples was indicted for second-degree aggravated arson (N.J.S.A. 2C:17-1(a)), third-degree arson (N.J.S.A. 2C:17-1(b)(2)), third-degree burglary (N.J.S.A. 2C:18-2(a)(1)) and possession of drugs (cocaine) (N.J.S.A. 2C:35-10(a)(1)). Following a fire, surveillance video revealed Naples riding his bicycle past a vacant building into a parking lot then showed the defendant in the lot again shortly after the fire began. Detectives had seen Naples in the past and quickly located him for questioning. During the conversation, the defendant admitted to having a crack pipe, which he provided to officers, and was also found to have a gas cap in his possession. He denied any knowledge of the fire but smelled of gasoline according to the detectives. His motion to suppress the evidence was denied and the jury acquitted Naples of arson and burglary and found him guilty only of the cocaine possession. He was sentence to a discretionary extended 6-year term in prison with a 3-year period of parole ineligibility. In State v. Naples, the NJ Appellate Court heard the defendant's arguments against the trial court's denial of the suppression motion and the extended sentence imposed for the minute amount of drugs. As to the suppression motion, the Appellate Division quoted State v. Pineiro, 181 N.J. 13, 21 (2004) in holding that based on the "facts available to the officer at the moment of the seizure or the search warrant[ed] a man of reasonable caution in the belief that the action taken was appropriate." With regard to the sentence imposed, the Appellate Division found a "clear showing of abuse of discretion", pursuant to State v. Whitaker, 79 N.J. 503, 512 (1979) on the part of the trial court. Although the prosecution moved for an extended sentence under N.J.S.A. 2C:44-3(a) applicable to persistent offenders as Naples was over 21 years old, previously convicted on at least 2 separate occasions of 2 separate crimes committed at different times after attaining the age of 18 years old and 10 years had not passed since the commission of his last release from confinement the Appellate Division held that being a persistent offender is only part of the consideration in sentencing to an extended term under State v. Dunbar, 108 N.J. 80 (1987). In Dunbar, the court held that the court must also determine whether an extended sentence is appropriate to protect the public under State v. Pierce, 188 N.J. 155, 164-65 (2006), weigh aggravating and mitigating factors and determine whether to impose a parole ineligibility period. The Appellate Division determined that the trial court failed to make the appropriate findings and gave too much weight to the controlled dangerous substance (CDS) found in Naples possession. The matter was reversed and remanded to the trial court for resentencing in light of the appropriate criteria and Naples criminal history. Drug charges often heavily sentenced and, if found guilty, you risk incarceration, loss of driver's license and substantial fine. If you are facing drug charges, you should seek experienced criminal defense counsel immediately. For more information about burglary, drug charges, CDS, theft, robbery 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.

Burglary Punishment Must Fit Crime Not Criminal

In State v. Nieves, Eric Nieves was charged in 4 residential burglaries and related crimes. The jury found him guilty of four burglaries (N.J.S.A. 2C:18-2); three thefts (N.J.S.A. 2C:20-3); dealing in stolen property (N.J.S.A. 2C:20-7.1b); receiving stolen property (N.J.S.A. 2C:20-7) and conspiracy with codefendants (N.J.S.A. 2C:5-2, :18-2, :20-7.1). Nieves was sentenced to 25 years imprisonment with 150 months of parole ineligibility. On appeal, the appellate division affirmed the convictions but vacated the sentence and returned to the court below for resentencing based on the factors set forth in State v. Yarbough, 100 N.J. 627 (1985). On appeal, Nieves objected to the jury instructions regarding certain lesser included offenses and complicity. Pursuant to State v. Singleton, 211, N.J. 157, 182 (2012), "if the defendant did not object to the charge when given, there is a presumption the charge was not error and unlikely to prejudice defendant's case." Prior to instructing the jury, the judge advised the attorneys of the intended charges and defense counsel gave his assent to both charging decisions. Defendant then bears the burden of showing plain error having a clear capacity of producing and unjust result R. 2:10-2 and the burden was not met. The Appellate Division found defendant's claim of error in the jury instruction on accomplice liability to have insufficient merit and affirmed all convictions. With regard to the custodial sentence, the defendant was sentenced on each of the 10 third degree crimes and received an aggregate sentence of 25 years with 12 1/2 years of parole ineligibility. Defendant did not deny his lengthy criminal history and was aware he qualified as a persistent offender but Nieves argued that the courts extensive reliance on his criminal history was inappropriate. In Yarbough, the court set forth the fact that "punishment should fit the crime, not the criminal, and that there should be a predictable degree of uniformity in sentencing." 100 N.J. at 630. State v. Miller, 205 N.J. 109 (2011) the New Jersey Supreme Court enumerated the Yarbough factors as modified by statute and offered guidance for appellate review of consecutive sentences. The Appellate Division found the discussion of Yarbough factors by the court below to be too cursory to permit adequate review. Further, any conspiracy conviction must be merged with the underlying completed crime. Burglary charges are not often lightly sentenced as they involve the possibility of great physical harm when the intruder and the owner or dweller accidentally meet and both act in fear. If you are facing burglary charges, you should seek experienced criminal defense counsel immediately. For more information about burglary, theft, robbery 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.