State v. Witt, N.J.S.A. 2C:43-2.4 and Guns

Under N.J.S.A. 2C:43-2.4, police may impound your vehicle in the event that a weapon contained therein is possessed for an unlawful purpose (N.J.S.A. 2C:39-4); an individual is in unlawful possession of a weapon therein (N.J.S.A. 2C:39-5); a motor vehicle with an occupant unlawfully possessing a weapon is used in another crime; the motor vehicle is used to further prostitution (N.J.S.A. 2C:34-1); and either controlled dangerous substances (CDS) are contained within the vehicle (N.J.S.A. 2C:35-10) or the vehicle is being used for drug trafficking (N.J.S.A. 2C:35-5). If you are stopped for a simple traffic violation and the police find cause within the newly prescribed limits of State v. William Witt, 219 N.J. 624 (2014), wherein the New Jersey Court overturned its prior ruling in Pena-Flores, 198 N.J. 6 (2009), relaxing the requirements for police to obtain a warrant to search your vehicle, you may find yourself facing weapons charges and without the reasonable transportation you need to obtain suitable defense counsel. 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 (N.J.S.A. 2C:43-6(c)). If you find yourself facing weapons charges or the impoundment of your vehicle as a result of a warrantless search or search with inadequate probable cause, you should immediately seek the assistance of a seasoned criminal defense attorney to protect your rights. For more information about possession of a controlled dangerous substance, CDS in a motor vehicle (N.J.S.A. 39:4-49.1), distribution of CDS, 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 weapons related charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Racketeering Conspiracy Charges Based On Warrantless Search

Xiomara Gonzales was charged with second-degree racketeering conspiracy (N.J.S.A 2C:5-2 and 2C:41-2(d)); third-degree possession of a controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10(a)(1)); first-degree possession of CDS with intent to distribute (N.J.S.A. 2:35-5(b)(1)); and first-degree distribution of CDS (N.J.S.A. 2C:35-5(b)(1)) after police conducted a planned stop of her vehicle with knowledge that there would likely be drugs therein. Gonzales sought to have heroin seized from her vehicle suppressed and the trial court judge denied her motion to suppress based upon the automobile exception and plain view exception to the search warrant requirement. Following the denial of her suppression motion, Gonzales pled to third-degree conspiracy to possess a controlled dangerous substance (N.J.S.A. 2C:5-2 and 2C:35-10(a)(1)). On appeal in State v. Gonzales, the NJ Appellate reversed and remanded the matter concluding that her Fourth Amendment rights had been violated. The record revealed that the Monmouth County Prosecutor’s Office, Newark Police Department Narcotics Unit and the Drug Enforcement Agency (DEA) were conducting investigations into various individuals. Through the use of a wiretap, the agencies received information indicating a suspect would be traveling to Newark to pick up heroin. The intent was to utilize a “wall off” traffic stop whereby the underlying wiretapping remains undisclosed by making the stop appear to be a routine traffic stop. Essex County law enforcement officers began following the suspect and Gonzales as they entered the Newark area in separate vehicles. Officers observed the suspect enter 2 separate locations and, at one point, place large bags obtained at the second location into the rear seat of Gonzales vehicle. Gonzales was then called by the suspect, whose phone was being tapped, and instructed to return to their point of origin without the suspect, as well as how to proceed through the Garden State Parkway toll booth without paying. After the pair separated, the police took their opportunity to “wall off” Gonzales from the suspect and avoid the risk that the suspect would realize his phone was tapped. Essex County officers were specifically told which vehicle to stop based on the information received by investigators from the Monmouth County Prosecutor’s Office by virtue of the wiretap. Upon stopping Gonzales vehicle, officers observed bricks of heroin which had fallen out of the bags onto the rear floor area of defendant’s vehicle and were then in plain view. The trial judge in the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County held that the three prongs of the plain view exception articulated in State v. Johnson, 171 N.J. 192 (2002) were satisfied and upheld the search. The NJ Appellate Division reviewed State v. Hinton, 216 N.J. 211 (2013), Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed.2d 639 (1980), State v. Davila, 203 N.J. 97 (2010) and State v. Hill, 115 N.J. 169 (1989) in holding that a search is presumptively invalid without a warrant issued by a neutral judge after a full recitation of the facts upon which said warrant is being sought or the search falls squarely within one of the well-defined exceptions to the warrant requirement. The Appellate Division held that the plain view exception is applicable, under Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed.2d 564 (1971), only in the event the evidence comes into plain view inadvertently and that items discovered in plain view following pretextual stops are subject to suppression under State v. Damplias, 282 N.J. Super 471 (App. Div. 1995) and therefore the exception was not satisfied. The Appellate Division further considered State v. Pena-Flores, 198 N.J. 6, 2022 (2009), wherein it was set forth that the automobile exception to the warrant requirement is satisfied in the event that: “(1) the police have probable cause to believe the vehicle contains contraband; (2) the circumstances demonstrate an exigency making it impracticable for the police to obtain a warrant; and (3) the traffic stop is ‘unforeseen and spontaneous.” The NJ Appellate Division held that during the time the police were following Gonzales through the Newark area prior to stopping her vehicle they had ample time to obtain a warrant to search her vehicle and their failure to do so did not entitle them to the benefit of the automobile exception to the warrant requirement and reversed and remanded the matter to the NJ Superior Court. Racketeering and gang activity are serious criminal charges with severe penalties including lengthy prison sentences and prohibitive fines. If you are facing these charges you should obtain experienced criminal defense counsel immediately to protect your rights and freedom. For more information about racketeering conspiracy, gang activity, possession of a controlled dangerous substance, possession of CDS with intent to distribute or distribution of CDS visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

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.

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.

Drug Distribution Conviction Reversed For Lack Of Probable Cause

Jermaine Wright was charged with possession of controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10a) and possession of CDS with intent to distribute (N.J.S.A. 2C:35-5). Wright's arrest was made by police in Trenton after Ewing Township detectives received a tip from a confidential informant that "Jazzz" was delivering CDS in Trenton in a specific vehicle. Initially the Ewing detectives followed up on the tip, verifying the vehicle and general location provided by the informant, but seeing no activity indicative of drug trade, then Ewing was dispatched to another call and passed the information on to Trenton detectives. Trenton detectives located the vehicle and approached on foot. Later testimony would conflict as to whether the officers guns were drawn as they approached the vehicle. The officer used flashlights to illuminate the occupied vehicle's interior and saw the occupants using a scale to measure a quantity of CDS, which they suspected to be cocaine. As the driver exited the vehicle, a large amount of money could be viewed plainly in the purse she left behind and a bag on the passenger seat was partially open leaving a significant quantity of cocaine in plain view. In State v. Wright, Defendant attempted to suppress the evidence claiming the officers' actions constituted de facto arrest without probable cause but the judge held that the stop was investigative in nature, of limited duration and of little intrusion upon the Defendant's liberty. The judge further held that the evidence initially seized was in plain view and the remainder was seized based on probable cause and under exigent circumstances. In spite of the motion judge's determination that Trenton officers parked their vehicle in a manner to prevent the defendants' exit and swift approach with guns drawn conveying the message they were not free to leave, the judge held the stop was not thereby converted to an arrest requiring probable cause. The Defendant's motion to suppress the CDS was denied and he entered a guilty plea to narcotics related offenses. The NJ Appellate Division referred to State v. Dickey, 152 N.J. 468, 475 (1998) in holding "the temporary detention of individuals during an automobile stop by police, even if only for a brief period and for a limited purpose constitutes a seizure. The Appellate Division also referenced State v. Gibson, ___ N.J. ___, (2014) in finding the judge below inaccurately utilized the reasonable and articulable suspicion standard for a stop rather than the probable cause standard required for an arrest. After a thorough analysis of warrantless seizure cases (State v. Pena-Flores, 198 N.J. 6 (2009), State v. Cooke, 163 N.J. 657 (2000) and State v. Mann, 203 N.J. 328 (2010)) and cases involving levels of police interaction (State v. Nishina, 175 N.J. 502 (2003), Terry v. Ohio, 392 U.S. 1 (1968), State v. Stoval, 170 N.J. 346 (2002), State v. Bernokeits, 423 N.J. Super. 365 (App. Div. 2011)) the appellate judges looked to further considerations including the duration of the stop, reasonableness, degree of the intrusion and the State's interest in the welfare of the public. The Appellate Division further reasoned that a reasonable articulable suspicion was required in this case but there were no particularized facts justifying the seizure. In fact, Trenton detectives testified they observed nothing giving rise to suspicion and approached the vehicle solely on the limited information provided by the Ewing Township detectives. The appellate division reasoned that the seizure of Wright was illegal as it was not supported by reasonable and articulable suspicion. Therefore, pursuant to State v. Smith, 155 N.J. 83 (1998), the appellate division reasoned the evidence obtained from the unlawful seizure must be suppressed and reversed the decision of the court below. Drug distribution charges are met with harsh penalties due to the public interest in deterrence. If you are facing charges for drug distribution or possession, there are multiple factors which may affect the ultimate outcome and an experienced criminal defense attorney will know how to protect your rights. For more information regarding drug distribution, possession, possession with intent to distribute or controlled dangerous substances (CDS) visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Legalizing Marijuana in NJ?

A bill, A-2842, legalizing possession of less than 50 grams of marijuana for any purpose is moving toward legalization in NJ at this time. Presently N.J.S.A. 2C:35-10 criminalizes the possession, use or being under the influence or failure to make lawful disposition of marijuana. N.J.S.A. 2C:35-10(a)(4) currently reads: "Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less a disorderly person." The penalty is up to one year in jail, a fine of up to $1000, or both. Assemblymen Michael Patrick Carroll, R- Morris, and Reed Guscoria, D-Mercer introduced this legislation after seeing the weight of the public sentiment moving toward legalization of marijuana use. The New Jersey State Municipal Prosecutors Association also supports the legalization of small amounts of marijuana for personal use as court dockets are overburdened with marijuana possession charges. Police personnel also find themselves spending copious amounts of time dealing with cases involving these small quantities of marijuana for personal use. Although the bill decriminalizes possession of small quantities as well as being under the influence, operation of a motor vehicle while under the influence would remain illegal. Although many are behind this referendum, there are opponents who believe it will be problematic. One person opposed to legalizing marijuana is Governor Chris Christie who has vowed that such changes to the law "will not happen on my watch ever." For the time being, possession, use or being under the influence of marijuana remains illegal in New Jersey. If you are charged with these or any other crimes under N.J.S.A. 2C:35-10, you can face serious consequences including imprisonment, loss of license, large fines and the stigma of a criminal charge on your record. You should seek experienced legal counsel immediately. For more information about use, possession or being under the influence of marijuana, CDS in a motor vehicle, DUI or other drug charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.