Bat Used in Assault Suppressed After Illegal Police Search

Kenneth Barbour was arrested for aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)), resulting from an alleged assault on his neighbor. Upon arriving at the scene, police were told by the bloody victim, that his neighbor used a black baseball bat to strike him in the head following a verbal dispute. Police indicated they used a patrol car loudspeaker to command Barbour to exit his residence as he was thought to have outstanding warrants and possibly weapons in his possession. An individual ultimately exited the residence and was arrested approximately 20 feet from the residence. Police, not having a photo of Barbour and unsure he was the man who exited the residence, entered the residence to conduct a search of the premises for others. The trial court denied Barbour's motion to suppress, and other relief requested, holding that the actions of the arresting officers were legitimate as part of a protective sweep of the residence. Following a jury trial, Barbour was convicted of fourth degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(d)) and sentenced to 2 years probation. In State v. Barbour, the defendant challenged several aspects of the trial court's decision, including the denial of his motion to suppress the bat alleged to have been used as the weapon in the assault. The Fourth Amendment of the United States Constitution and Article I of the New Jersey Constitution guarantee the right to citizens to be free from unreasonable search and seizure unless certain very narrow exceptions apply. State v. Maryland, 167 N.J. 471 (2001). The New Jersey Appellate Division held that a protective sweep must be limited to "areas in a defendant's immediate control." Such a sweep is valid only when there is (1) a legitimate reason for the officers presence in the residence; and (2) officers have a reasonable suspicion that there is a dangerous individual hiding in the area to be swept and that the burden of proving these circumstances existed is on the State. State v. Davila, 203 N.J. 97 (2010). In light of the evidence and testimony presented that the Defendant was outside when arrested and there was no reasonable articulable suspicion that another dangerous individual was inside the residence, the N.J. Appellate Division found the search and seizure to violate the Defendant's right to be free from unreasonable search and seizure and reversed the denial of the motion to suppress. Assault and attempted assault charges are very serious and bear severe consequences including incarceration, the inability to obtain employment and certain licenses, and social stigma associated with such problems. 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, unlawful possession of a weapon, possession of a weapon for an unlawful purposed 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.

Unconstitutional Traffic Stop Leads To Suppression Of Weapons Evidence

Al-Sharif Scriven was charged with 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); fourth-degree possession of hollow-point bullets (N.J.S.A. 2C:39-3(f)); and fourth-degree possession of a large-capacity magazine (N.J.S.A. 2C:39-3(j)). The Honorable Martin G. Cronin, for the Superior Court of New Jersey, Law Division, Essex County granted Al-Sharif Scriven’s motion to suppress evidence seized during the warrantless search following the stop of a vehicle in which Scriven was a passenger. The vehicle was stopped by an Essex County Sheriff’s Officer for violating N.J.S.A. 39:3-60, driving with high beams on. The State of New Jersey appealed the court’s grant of the suppression motion. The facts adduced at trial were that Scriven was a passenger in a car which was traveling through Newark, NJ in an entirely lawful manner, with the exception of the fact that the vehicle was traveling with its high beams on. An Essex County Sheriff’s Officer observed the vehicle and flagged it down when it came to a stop at an intersection he was near. When the officer approached the driver to advise her that her high beams were on he requested her credentials. While speaking to the driver, the officer detected an odor of burnt marijuana emanating from inside the vehicle which the officer indicated was stronger on the passenger side of the vehicle. The officer asked Scriven to exit the vehicle and Scriven first notified the officer that there was a handgun under his coat. The officer retrieved the gun from Scriven’s person and arrested him. Judge Cronin relied on State v. Witt, 435 N.J. Super. 608 (App. Div. 2014), 219 N.J. 624 (2014), which was directly on point and held that the initial stop of a vehicle is inappropriate when there is no actual violation. In Scriven, there was no oncoming vehicle within 500 feet traveling in the opposite direction as is required in order for a violation of N.J.S.A. 39:3-60 to occur. On appeal, in State v. Scriven, the court looked to State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005), which held that when an officer makes a mistake in the belief that a violation exists the mistake does not thereby create a reasonable basis for a stop. The State also argued, under the community caretaking doctrine, the officer was acting appropriately in stopping the vehicle briefly to notify the driver that her high beams were in use. In certain cases, including State v. Martinez, 260 N.J. Super. 75 (App. Div. 1992), wherein a vehicle was traveling less than one-half the posted speed limit at 2:00 a.m., an officer would be justified in stopping the vehicle to insure there was nothing amiss. The N.J. Appellate Division upheld Judge Cronin’s decision and the State again appealed. On Wednesday, July 20, 2016, the N.J. Supreme Court affirmed the decision of the court below suppressing the weapon found on Al-Sharif Scriven as the fruits of an unreasonable search. 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 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 weapons related charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Handgun In Plain View? Prove it!

Jarrell Williams was convicted of second-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b) after an officer allegedly saw a handgun in plain view on the floor of his vehicle during a motor vehicle stop. At all times during the proceedings, Williams maintained that he was unaware that the vehicle, recently purchased by his mother, contained a handgun. Williams also maintained that the gun was not in plain view on the floor of the vehicle near the driver’s seat. The facts collectively presented at trial in State v. Williams are that 4 men, including the defendant, entered the vehicle and smoked marijuana then the defendant pulled the vehicle out of the driveway just as two plain clothed police officers came down the street at which point Williams immediately pulled over and turned off the vehicle. The officers claimed that the location and actions of the defendant and the vehicles’ other occupants gave rise to suspicion and the officers turned around. Seeing the officers’ vehicle turn around, all 4 occupants exited the vehicle before the officers engaged them in conversation. Conflicting accounts of the vehicle’s ownership were offered by occupants and Officer Brown approached the vehicle, with its doors open, to verify the registration. The officer’s testimony was that he observed a marijuana cigarette and plastic bag and, upon going to retrieve same, noticed the pistol on the floor in front of the driver’s seat. The 6th Amendment of the United States Constitution and Article 1 of the New Jersey Constitution establish and protect a defendant’s right to present a complete defense including confrontation of witnesses. Several cases including State v. Garron, 177 N.J. 147 (2003), State v. Budis, 125 N.J. 519 (1991), State v. Sugar, 100 N.J. 214 (1985), State v. Crudup, 176 N.J. Super. 215 (App. Div. 1980) and State v. Guenther, 181 N.J. 129 (2004) have upheld this right but within the constraints of N.J.R.E. 611(a) and N.J.R.E. 401 which afford the court discretion of control over the trial. The N.J. Appellate Division ultimately decided that the jury should not be placed in the position of determining the constitutionality of a search and seizure but that Defense counsel’s line of questioning was not in danger of placing them in that position and was instead intended to determine whether the officer had a predetermined purpose in offering the statements he had made and was an attempt to introduce motive on the part of the officer to testify in a certain manner. The NJ Appellate Division determined that the defendant’s right to cross-examine the officer was violated and that, due to the possible influence this may have had on the decision of the jury, the matter was remanded for a new trial. Weapons offenses are subject to severe punishment including incarceration for 5-10 years for many such offenses. If you are charged with unlawful possession of a weapon, it is critical that you obtain experienced criminal defense counsel to represent you. For more information about possession of a handgun without a permit, unlawful possession of a weapon, possession of a weapon while on parole or probation, possession of a weapon during a drug related offense or other serious weapons charges visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Attempted Murder Reduced To Aggravated Assault For Plea

Richard Spellman was indicted on two counts of attempted murder (N.J.S.A. 2C:5-1 and 2C:11-3); two counts of first-degree robbery (N.J.S.A. 2C:15-1); two counts of second-degree possession of a weapon (N.J.S.A. 2C:39-4a); two counts of third-degree unlawful possession of a firearm (N.J.S.A. 2C:39-5b); and second-degree certain persons not to have weapons (N.J.S.A. 2C:39-7). Spellman confessed and his motion to suppress the confession was denied. He ultimately pled guilty, in the Superior Court of New Jersey, Law Division, Somerset County, to all charges after the first-degree attempted murder charges were amended to second degree aggravated assault (N.J.S.A. 2C:12-1b(1)). Spellman was sentenced to concurrent 17 year terms subject to an 85 percent period of parole disqualification under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2); two 10 year terms and two 5 year terms; and restitution to a victim with a 5 year period of parole supervision to follow his release. The charges stemmed from two incidents. First, while on parole for a prior aggravated assault, Spellman entered a convenience store, demanded money and then shot the clerk in the stomach after he was given the money. In the second incident, Spellman shot a man in the parking lot of a restaurant. Upon arrival at the scene, police found a gun in the parking lot and Spellman staring at them out the window of a nearby store. When officers spoke to Spellman, he indicated he was fighting with the man he shot. Officers searched Spellman and found a bullet on his person. At the police station, officers found another bullet on Spellman's person and, prior to questioning of any kind, Spellman said "I shot the attendant at the [convenience store]." Spellman was read his Miranda rights, waived his right to counsel and quickly confessed to shooting both individuals. In State v. Spellman, the NJ Appellate Division upheld the trial court judge's decision that the defendant's confessions were voluntary in spite of the defendant's challenge to the voluntariness based on mental capacity which was not raised at trial and therefore not preserved for appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229 (1973). The NJ Appellate Division looked to State v. Smith, 307 N.J. Super. 1 (App. Div. 1997), in holding that mental illness itself, if present, does not invalidate a confession. The record below satisfied the Appellate Division that the trial judge fully reviewed the confession and found no coercion or force to have been used. With regard to sentencing, the NJ Appellate Division did find errors with the trial judge's failure to properly weigh the aggravating and mitigating sentencing factors of N.J.S.A. 2C:44-1 and explain his or her reasoning fully on the record. State v. Fuentes, 217 N.J. 57 (2014). The Appellate Division determined that he trial judge's imposition of concurrent 17 year sentences exceeded the statutory range of 5 to 10 years set forth in N.J.S.A. 2C:43-6a(2). Finally, the Appellate Division and the State agreed that the trial judge failed to make adequate findings, pursuant to N.J.S.A. 2C:44-2b(2), as to whether the defendant was able to pay the restitution ordered. The matter was remanded for resentencing. 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 DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Motion To Suppress Handgun Denied

James Legette was indicted for second-degree unlawful possession of a handgun without a permit (N.J.S.A. 2C:39-5b) and second-degree possession of a weapon by a convicted person (N.J.S.A. 2C: 39-7). Legette, once in police custody entered his residence, with officers, and attempted to remove a handgun from his own person to avoid police detecting the gun in any subsequent search of his person. State v. Legette began when police responded to a noise complaint and noted the defendant coming from a building smelling of burnt marijuana and stopped him for investigatory purposes. The defendant claimed the need to enter his apartment to obtain his identification and the officer agreed and accompanied him. While walking through the premises toward the defendant's apartment, the office noticed what appeared to be a gun in the pocket of the defendant's sweatshirt. Once inside his apartment, the defendant produced his identification and removed his sweatshirt while the officer was radioing in the defendant's information. The defendant agreed to accompany the officer back outside with the officer carrying the sweatshirt defendant had removed as evidence. Once outside, a search of the sweatshirt by the officer's K-9 obviated the handgun in the pocket of the sweatshirt and the defendant was placed under arrest. In an ensuing motion to suppress the handgun, the NJ Superior Court trial judge held that James Legette was validly accompanied into his residence by police when sought to enter his own residence for the stated purpose of obtaining his identification. On appeal, the NJ Appellate Division reviewed State v. Walker, 213 N.J. 281 (2013) giving the officer the right to enter the common hallway of the building as he was called to the scene by citizens to investigate a noise complaint. Also under Walker, the odor of burnt marijuana emanating from the door the defendant opened gave the officer probable cause to believe contraband may be present. State v. Lamb, 218 N.J. 300, 314 (2014) which read the fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution to guarantee individuals the right of freedom from unreasonable search and seizure in their homes. However, under State v. Bruzzese, 94 N.J. 210, 234 (1983) when an individual under arrest chooses to enter their residence to obtain an item, it is both permissible and reasonable for officers to accompany them into the residence. The Appellate Division affirmed the decision of the trial judge. If you are facing charges stemming from illegal possession of a handgun, BB gun, paintball gun or other weapon it is critical you not undertake these matters without experienced counsel. For more information about unlawful possession of a weapon, illegal weapons, possession of a weapon for unlawful purposes or other serious weapons offenses visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

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.

DUI Matter Changes Warrantless Search Standard In NJ

State v. William L. Witt, (A-9-14)(074468), 435 N.J. Super. 608, 610-11 (App. Div. 2014), 219 N.J. 624 (2014), began as a possible driving under the influence (DUI) (N.J.S.A. 39:4-50) case but, due to the warrantless search of Witt's vehicle, led to an indictment for second-degree unlawful possession of a firearm (N.J.S.A. 2C:39- 5(b)) and second-degree possession of a weapon by a convicted person (N.J.S.A. 2C:39-7(b)). Following a trial and appeals in this matter the result was the overturning of State v. Pena-Flores, 198 N.J. 6 (2009), which has been the standard for automobile searches in New Jersey. After being pulled over and removed from the vehicle for field sobriety tests, which police claim he failed. After arresting Witt, the police searched the vehicle for "intoxicants" and discovered a handgun in the center console. The trial court followed Pena-Flores in holding that the warrantless search of the vehicle, beyond a plain view search for open containers of alcohol, was in violation of Witt's rights and suppressed the handgun. The N.J. Appellate Division affirmed the trial court's decision to suppress the gun finding that there were no circumstances involved in this matter which could give rise to justification of the warrantless search. The N.J. Supreme Court held, days ago, that there should be a return to the standard of State v. Alston, 88 N.J. 211 (1981), wherein the automobile exception to the warrant requirement allows police with probable cause to believe the vehicle contains contraband or evidence of a crime to search a vehicle when unforseeable circumstances arise during a motor vehicle stop. State v. Cooke, 163 N.J. 657 (2000), added the need for exigent circumstances to the standard set in Alston and Pena-Flores reaffirmed Cooke adding a preference for the use of available technology to obtain warrants in if at all practicable. The State argued that the Pena-Flores standard was overly subjective, lacked uniform application, placed police officers in harm's way, motorists were ultimately consenting rather than the police applying for warrants, and where vehicles were impounded the intrusion was greater than that involved in a roadside search. The NJ Supreme Court considered the standard established by the United States Supreme Court, which requires only that the vehicle is easily moveable, including even mobile homes, and the officer has probable cause to believe the vehicle contains contraband or evidence of an offense. The NJ Supreme Court further considered the difficulty caused to officers by upholding the standards in Pena-Flores against the Constitutional protections it provides. The Court opted for a return to the standard established in Alston, which offers police much broader authority to avoid obtaining a search warrant than under Pena-Flores. If you are facing charges of DUI, refusal or other criminal charges as a result of an included search of your vehicle, you should obtain experienced criminal defense counsel immediately. For more information about DUI, controlled dangerous substances (CDS) in a motor vehicle, illegal possession of a firearm, other weapons offenses 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.

Handgun Discovered In Search Will Not Be Suppressed

James J. Scarborough pled guilty to second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)) after police found a handgun under his seat in a vehicle during an investigatory search based on the odor of burnt marijuana coming from the vehicle's interior. He was sentenced to 5 years incarceration, subject to a 3 year period of parole ineligibility under the Graves Act (N.J.S.A. 2C:43-6c). Police received an anonymous call about a vehicle parked in the rear lot of a closed facility and, upon responding, discovered 2 males in the vehicle involved in what the officer suspected to be drug activity. Upon encountering the driver the officer perceived an odor of burnt marijuana. Ultimately, the driver signed a consent to search form and a handgun was discovered under the passenger seat where Scarborough was sitting along with a magazine and ammunition between the passenger seat and door. Scarborough told police he found the gun in the woods earlier in the day and did not know what to do with it. Scarborough filed a motion to suppress the evidence and his statement, both of which were denied and he then entered into the guilty plea. In State v. Scarborough the defendant appealed and the NJ Appellate Division upheld the denial of the suppression motion finding that a field inquiry under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968) was permissible based on the anonymous call regarding the vehicle. The odor of burnt marijuana then gave probable cause to believe a crime was committed under State v. Vanderveer, 285 N.J. Super. 475 (App. Div. 1995) and State v. Nishina, 175 N.J. 502 (2003). Once the officer had probable cause to believe criminal activity was afoot he was justified, under State v. Carty, 170 N.J. 632 (2002), in seeking consent to search the vehicle. Finally the NJ Appellate Division found no abuse of discretion by the trial judge in determining the Scarborough's statement was not coerced. The matter was, however, remanded as to sentencing factors only. Second-degree unlawful possession of a handgun in NJ carries up to 10 years in prison with a mandatory period of parole ineligibility under the Graves Act. If you are charged with a weapons offense you need experienced criminal defense counsel. For more information about weapons possession, possession of a weapon without a permit, use or possession of a weapon in the commission of a crime, illegal weapons or other weapon 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.

Handgun Located By Casino Valet Not Suppressed

Phillip King was charged with second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)). King left his car with a casino valet at Trump Plaza and, upon entering the vehicle the valet noticed the center console to be partially open. The valet then attempted to close the console and could not. Upon opening the console to attempt to move the obstruction, the valet saw the obstruction was the butt of a handgun. The valet returned the console lid to its partially opened position and notified local police. Upon arrival, the police found the vehicle’s center console cover to be in the partially opened position and, without first obtaining a search warrant, opened the console to look inside and removed the handgun from the center console. The vehicle had Pennsylvania license plates, King had a valid Pennsylvania driver’s license and a valid Pennsylvania gun carry permit and claimed he was unaware that he could not legally transport the firearm in his vehicle in New Jersey. King sought to suppress the handgun over the State’s argument that warrantless search was valid under the community caretaking exception, the automobile exception and the third-party exception. The court held that the State had ample time to secure a warrant as the vehicle was parked in the casino’s garage and officers present at the scene could insure the vehicle was not moved. The court further held that the officer’s search exceeded the scope of the valet’s private search and therefore the third-party exception to the warrant requirement was invalidated. The State appealed with regard to the third-party intervention exception to the warrant only. The exemption assumes that a private party discovered the item or information and turned it over to police and therefore there was no violation of the defendant’s Fourth Amendment rights. Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048 (1921). The court considered State v. King to be very similar to United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed.2d 85 (1984) wherein a private party initially searched and notified authorities of the discovery then police went further in their search than the private party had. In Jacobsen the Supreme Court held that the defendant had no reasonable expectation of privacy in the cocaine discovered by the mail carrier. The court also reviewed State v. Marshall, 123 N.J. 1 (1991), State v. Minitee, 210 N.J. 307 (2012), State v. Saez, 268 N.J. Super. 250 (Ap. Div. 1993) and State v. Wright, 431 N.J. Super. 558 (App. Div. 2013), where in each case warrantless searches extended after third-party initiation were upheld by New Jersey courts. After considering the areas searched in the above mentioned matters and the expectation of privacy one could reasonably hope to have in a vehicle willingly turned over with keys to a valet, the court found that the officers actions beyond the scope of the valet in State v. King were minimal and therefore upheld the search and reversed the suppression of the handgun. 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 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 weapons related 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 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.

Murder Conviction Upheld After Graphic Photos Were Shown To Jury

Darwin Rodriguez-Ferreira was convicted of knowing and purposeful murder (N.J.S.A. 2C:11-3a(1) and (2)); fourth-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5d); and third-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4d). At sentencing the defendant received a thirty year prison sentence including a thirty year parole disqualifier and consecutive eighteen month sentence for unlawful possession of a weapon. Kendall was found lying in the street near his Jersey City home with multiple stab wounds. Multiple calls to and from "Darwin" were found in Kendall's cell phone log and a bloody knife wrapped in boxer shorts was found nearby shortly thereafter. The blood contained Kendall's DNA and the boxer shorts contained Darwin's DNA. The defendant left the country with a one-way ticket the day after the murder and police found bloodstains with Kendall's DNA on Darwin's floor while searching Darwin's residence. In State v. Rodriguez-Ferreira, the defendant appealed the convictions and sentence received in the Superior Court of New Jersey, Law Division, Hudson County. At trial, over Darwin's objection, four graphic photos of Kendall's body depicting stab wounds to the neck and face, torso and forearm were presented to the jury. One photo, taken during the autopsy included stab wounds suffered by internal organs extracted from the body during the autopsy. N.J. Rule of Evidence 403 permits the inclusion of evidence if the probative value substantially outweighs the risk of prejudice to the jury through its revelation. In State v. Johnson, 120 N.J. 263 (1990), the NJ Supreme Court held that vivid and graphic details which may be difficult to look at do not necessarily call for exclusion of photographic evidence. State v. Sanchez, 244 N.J. Super. 231, 249-51 (App. Div. 1988) allows admission of murder victim photographs to prove the act was "purposeful and knowing." N.J. Appellate Division affirmed the trial court's decision to admit the photos. With regard to the sentence imposed, the trial court failed to consider the relevant factors under State v. Yarbough, 100 N.J. 627 (1985) and the matter was remanded by the Appellate Division for sentencing including an articulation of the how the Yarbough Factors apply to require a consecutive sentence for unlawful possession of a weapon. If you are facing murder charges, it is the state's burden to prove your guilt and they must do so in a just and appropriate manner, without the admission of unduly prejudicial evidence or testimony. It is critical you obtain experienced criminal defense counsel to ensure your rights are protected against prejudicial acts by the prosecution or the judge. For more information regarding homicide, assault, weapons charges or other serious criminal issues in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Murder Pled To Aggravated Manslaughter Leads To PCR Appplication

Lynn Giovanni was charged with first-degree purposeful and or knowing murder (N.J.S.A. 2C:11-3(a)(1), 3(a)(2)); third-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(d)); and fourth-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(d)). She pled to aggravated manslaughter (N.J.S.A. 2C:11-4) as a lesser included offense of knowing or purposeful murder (N.J.S.A. 2C:11-3(a)(1), -(a)(2)) and was sentenced to 30 years in prison with an eighty-five percent parole ineligibility period under the No Early Release Act (NERA)(N.J.S.A. 2C:43-7.2). Giovanni bludgeoned her 14 year old daughter to death while she slept. At the time, Giovanni was being treated for depression and post-traumatic stress disorder and her daughter was having behavioral and adjustment problems after her parents' divorce and was being treated for depression. After killing her daughter, the defendant took multiple prescriptions in an effort to commit suicide but was unsuccessful. She then left the residence and repeatedly drove her vehicle into a guardrail trying to kill herself. During pre-trial psychological examinations of the defendant by defense experts she indicated that her actions were designed only to help her daughter end her pain and ultimately be with her through suicide and indicated that she had planned the killing for about a month. The State, under State v. Whitlow, 45 N.J. 3 (1965),conducted psychological examinations of the defendant which found her to be capable of understanding her actions at the time of the killing and that her actions were deliberate. After considering all evidence the parties came to terms on a plea agreement to first-degree murder but with the prosecutor recommending a sentence for aggravated manslaughter. At sentencing, in State v. Giovanni, the court reviewed the plea fully and the defendant participated in the conversation, providing replies when called for. Although the defendant filed no direct appeal, the defendant sought post-conviction relief (PCR) claiming that her sentence violated Briggs as her factual basis was not appropriate to aggravated manslaughter and mental issues interfered with her ability to understand the plea or sentence. She also claimed, during the PCR hearing, that her counsel advised her not to speak at sentencing. Defendant's counsel denied any such assertion. She further referenced plea offers which never existed in reality and the fact that her counsel did not adequately pursue insanity and diminished capacity defenses. Defendant next appealed the denial of her petition for post-conviction relief and the denial was upheld on all counts but remanded for reconsideration of her application to withdraw her plea in light of the lower court's misapplication of the factors set forth in State v. Slater, 198 N.J. 145 (2009). Slater sets forth the standard for review of ineffective assistance of counsel claims as requiring the showing that "(1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance; and (2) that counsel's performance created a reasonable probability that, but for counsel's unprofessional efforts, the result of the proceeding would have been different." With regard to Slater factor one in particular, the court below was seen as taking a particularly harsh view. Regarding factor two, the court was advised to reconsider the defendant's mental capacity on remand. 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.

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.

Murder Conviction Cannot Stand on Cumulative Trial Errors

Jahnell Weaver and Khalil Bryant were in attendance at a graduation party in Camden, NJ where someone pulled a gun and fired 5 shots killing Edward Williams and wounding Amyr Hill. Although only one individual could have fired the gun, both Hill and Weaver were implicated by others at the party. Jahnell Weaver and Khalil Bryant were juveniles but both were charged as adults with first-degree murder (N.J.S.A. 2C:11-3(a)(1)(2)); first-degree attempted murder (N.J.S.A. 2C:5-1 and 2C:11-3); second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)); third-degree assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)); second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)); third-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(b)); and third-degree endangering an injured victim (N.J.S.A. 2C:12-1.2). At trial, the only significant dispute was weather Weaver or Bryant was the shooter. Both Weaver and Bryant were seen with guns at the party. Hill identified Bryant as the shooter then changed his testimony while other witnesses offered conflicting testimony. Weaver offered that Bryant later used the same weapon in a shooting as a defense and Weaver moved for a separate trial. The court denied Weaver’s application to admit other crimes evidence regarding Bryant’s shooting of another individual shortly after the incident in question due to the substantial prejudice it would cause against Bryant as well as denying Weaver’s request for a separate trial. The State was able to admit Bryant’s statement that he received the gun immediately after the shooting in question. However, because Bryant did not testify, Weaver did not have the opportunity to cross-examine him with regard to the statement. Lamike Goffney, an eyewitness, saw one of the men fleeing the scene hand the gun to another man fleeing the scene and other evidence in the trial led the jury to the conclusion that Bryant then received the weapon from Weaver. Weaver was ultimately convicted and appealed. After the NJ Appellate Division upheld the decision of the trial court, State v. Weaver was heard by the NJ Supreme Court. The NJ Supreme Court reversed the decision of the Appellate Division and remanded the matter for a new trial based on the potential prejudice to Weaver as a result of the cumulative errors in denying his request for a separate trial, refusing to allow other crimes evidence and allowing Bryant’s statement to enter without cross-examination. The penalty for murder is severe including 30 years to life in prison. If you are facing homicide charges, you need experienced criminal defense counsel to protect your rights. For more information about murder, homicide, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, assault, assault with a deadly weapon or other serious crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

In Gang Related Murder, Lawyer's Failure To Call Alibi Witnesses May Be Ineffective Assistance

Fedner Pierre-Louis, allegedly of the Playboy Posse criminal gang, was convicted of first-degree aggravated manslaughter (N.J.S.A. 2C:11-4(a)(1)); first-degree robbery (N.J.S.A. 2C:15-1), first-degree felony murder (N.J.S.A. 2C:11-3(a)(3)), third degree unlawful possession of a firearm (N.J.S.A. 2C:39-5(b)) and second-degree possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4(a)). The defendant, in State of NJ v. Fedner Pierre-Louis, was sentenced to 45 years in prison for this murder of an oncologist, Jeffrey Perchick, at a hotel in the Newark area. Pierre-Louis was charged when a gun used in another crime was traced to him. However, Pierre-Louis offered his defense attorney seven potential alibi witnesses, including family members and friends from his night-school classes, who were willing to testify on his behalf. Defense counsel employed a private investigator who spoke with the alibi witnesses and determined them to be unreliable. As a result of the private investigator's assessment, defendant's counsel made the decision not to present any of the alibi witnesses and Pierre-Louis was convicted. Upon a post-conviction relief filing by defendant, the trial judge, Union County Superior Court Judge John Triarsi vacated the guilty verdict then reversed himself after reviewing documents demonstrating defendant's trial counsel knowingly made the decision not to present the alibi witnesses after interviews by the private investigator. The NJ Appellate Division affirmed the trial court's ruling and the NJ Supreme Court granted the defendant's petition for certification. The NJ Supreme Court considered whether the petition for post-conviction relief satisfied the test set forth by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984) and State v. Fritz, 105 N.J. 42 (1987). The Justices heard arguments from the prosecution and defense regarding the with whom the decision to produce witnesses lies, the standard of review the trial judge must undertake and at one point the Court has the authority to disturb the trial judge's findings. Ultimately, the NJ Supreme Court held that the trial court's findings were not sufficient with regard to either prong of the test and remanded the matter to the trial court for a new hearing including the presentation of the alibi witnesses for the purposes of determining credibility. If you are facing criminal charges in NJ, the consequences of a conviction can change your life. For more information about gang crimes, weapons charges, murder, manslaughter, robbery and 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.

Two Unlawful Weapons But Only One Extended Term For Convicted Felon

In State v. Robbins, the defendant, Sylvanus K. Robbins, was convicted of 2 counts of unlawful possession of a weapon by a convicted felon (N.J.S.A. 2C:39-7), possession of a stun gun (N.J.S.A. 2C:39-3h), possession of a sawed-off shotgun (N.J.S.A. 2C:39-3b), unlawful possession of a loaded weapon (N.J.S.A. 2C:39-5c(2)) and hindering his own prosecution (N.J.S.A. 2C:29-3b(1)). Robbins appealed the conviction and the 16 year aggregate extended-term sentence with 50% parole disqualifier. Defendant was stopped for an illegal u-turn and failed to produce a license, registration or insurance card then confessed to having a suspended North Carolina driver's license. The defendant was ordered from the vehicle and secured in handcuffs for officer safety and during the detention it was discovered defendant had warrants from North Carolina for burglary, kidnapping and assault by strangulation. Defendant agreed to a search of the vehicle and based on information provided by defendant's girlfriend, the police also sought consent to search their hotel room. Upon receiving consent to search from defendant's girlfriend, police discovered a sawed-off shotgun, ammunition and a stun gun in the hotel room. Police stated that, after being Mirandized but before deciding whether to give up the right to remain silent, Defendant immediately admitted to ownership of the shotgun, advising it was for protection when riding his dirt bike in the North Carolina woods. Defendant denied admission of ownership of the gun and stated he only consented to the search as it was very cold outside and the officer had him stand outside of the car until he consented. The judge was not satisfied consent was voluntary and suppressed a fake gun found in the trunk of the car. The judge also decided the search of the hotel room was separate from the search of the vehicle and would have happened as a result of the warrants therefore, pursuant to Wong Sun v. United States, 371 U.S. 471 (1963) the shotgun was not "fruit of the poisonous tree." The judge held that the defendant's admission to ownership of the gun did not violate Miranda or Rule 3:17(a) as it was made spontaneously and not during an investigation. On appeal, the NJ Appellate Division affirmed the conviction and found the 16 year extended-term not to be excessive for possession of a saw-off shotgun gun by a convicted felon pursuant to State v. Bieniek, 182 N.J. 44 (2004). The Appellate Division did remand for re-sentencing with regard to the imposition of 2 extended term sentences as N.J.S.A. 2C:44-5a(2) prohibits more than one extended term. In regard to possession of the stun gun by a convicted felon, the sentence was to be a concurrent, ordinary term. If you are facing weapons or other serious charges, it is critical for you to obtain experienced criminal defense counsel to fight the charges. Conviction and even certain negotiated pleas can result in extended term sentences which will deprive you of your freedom for a large part of your life as well as have a devastating impact on your loved ones. For more information regarding weapons possession by a convicted felon, possession of a weapon for unlawful purposes, hindering apprehension and 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.