Possession Conviction Reversed On Right To Remain Silent

Jamaal Shockley was indicted for third-degree possession of cocaine, a controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10(a)(1)); third-degree possession of cocaine, a CDS, with intent to distribute (N.J.S.A. 2C:35-5(a)(1)); and second-degree eluding police (N.J.S.A. 2C:29-2(b)) after he fled from police when they attempted to get him to stop while he was riding a dirt bike. Shockley fled and the pursuit continued until he fell off the motorcycle and was tackled by officers while attempting to run away. The defendant was patted down for weapons at the scene, his jacket was searched at the police department and his shoes and jacket were again checked prior to leaving the hospital after treatment. While being booked into the county jail, the defendant was again patted down before removing his clothes. Each of the prior searches was negative for weapons or contraband. After Shockley had removed his clothing as part of processing and was already lodged in jail, corrections officer Brooks again searched his clothing outside of his presence and discovered a bag containing 14 bags of cocaine within another small bag in the pocket of the defendant's sweatshirt. In State v. Shockley, the defendant was found guilty of possession of a CDS and eluding police. Shockley was sentenced to 8 years with 4 years of parole ineligibility for the eluding charge and a concurrent 6 year term with 3 years of parole ineligibility for the CDS charges. The defendant appealed on multiple grounds including that corrections officer Brooks testified regarding Shockley's silence when notified by Brooks that the cocaine had been discovered. Although the defendant did not object to Brooks' testimony at trial, reversal is required if it was clearly capable of producing an unjust result. State v. Taffaro, 195 N. J. 442 (2008). The Appellate Division looked to State v. Stas, 212 N.J. 37, 59 (2012) wherein the court considered the privilege against self-incrimination as set forth in N.J.S.A. 2A:84A-19 and N.J.R.E. 503. The court cited Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 2245, 49 L. Ed.2d 91, 98 (1976) with regard to the Fifth Amendment of the United States Constitution and the protection it offers both pre and post-arrest silence. In NJ, State v. Brown, 118 N.J. 595, 610 (1990) affords an accused the right to remain silent while "in custody or under interrogation." The NJ Appellate Division found the testimony to be plain error as it offered no probative value and was clearly in violation of Shockley's rights to remain silent and a fair trial. The matter was reversed and remanded for a new trial. A drug related conviction in NJ can have serious and lasting consequences including prison, loss of license, substantial fines and the stigma of the conviction or plea can result in the loss of certain employment or educational opportunities. If you are facing charges of use, possession or distribution of CDS, it is critical you consult with an experienced criminal defense attorney immediately to protect your rights. For more information about prescription or non-prescription drug charges for use possession or distribution, controlled dangerous substances in a motor vehicle, DUI and other criminal and serious municipal court matters visit HeatherDarlingLawyer.com. This blog is for informational purposes 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.

No Suppression Of Handguns Shown In Video

Ronald Payne was convicted in the Superior Court of New Jersey, Essex County for two counts of second-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(b)), third-degree receiving stolen property (N.J.S.A. 2C:20-7) and third-degree resisting arrest (N.J.S.A. 2C:29-2a(3)(a)) after police received a report of a man in possession with a gun in Belleville, NJ. Upon arriving in the area, police saw the defendant run to a car which sped away as soon as the defendant got in. As police chased the vehicle, Payne pointed a gun at the officers and his actions were recorded by the cruiser's dash camera. Police ultimately stopped the vehicle and, upon removing the defendant, saw two handguns in plain view on the vehicle's back seat. In State v. Payne, the defendant sought suppression of the weapons discovered, however, the Superior Court judge viewed the patrol car's video and declined to hold a suppression hearing. The defendant pled guilty and was sentenced to 5 years in prison with a 3 year parole ineligibility period under the Graves Act (N.J.S.A. 2C:43-6(c)). The defendant appealed the denial of his suppression motion without an evidentiary hearing and the court's failure to award him appropriate jail credits at sentencing as a result of a parole violation. The NJ Appellate Division found that the defendant's appeal of the suppression motion was without significant merit as the video showed enough to see the handguns in plain view and leave no material facts in dispute, under State v. Hewins, 166 N.J. Super. 210 (1979), with regard to the handguns. The Appellate Division did remand the matter to the trial court to determine whether the 720 jail credit awarded to the defendant was appropriate or whether he was entitled to additional jail credits. Second-degree unlawful possession of a firearm or handgun carries up to 10 years in prison with a mandatory parole ineligibility period under the Graves Act. If you are facing weapons charges, you should seek experienced criminal defense counsel immediately. For more information about weapons possession, use or possession of a gun in the commission of a crime, possession of a handgun without a permit, weapons possession while on probation or parole, illegal weapons or other serious charges in NJ 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.