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.

Juror Replacement Leads to Robbery Conviction Reverasl

In State v. Musa, Humfrey A. Musa was convicted of second degree robbery after jury deliberations. The defendant appealed the conviction based on substitution of Juror #2 after the first full day of deliberations. At the close of the first day of deliberations, the judge was provided a note from the jury including the jury's inquiry as to whether a juror could be excused. The judge indicated that, barring emergency in the form of illness or other special circumstances, jurors would not be excused. On the following day, Juror #2 failed to appear, provided no notice and the court placed telephone calls to the juror and left messages at her home requesting contact, as well as making efforts to contact her at the work number listed only to find she was not employed where claimed, but ultimately did not locate the missing juror. Defense counsel requested that the judge inquire of the remaining jurors whether Juror #2 was the one referenced in their note the previous day regarding substitution as a result of non-cooperation. The prosecution argued that the judges answer to the jurors question as to whether a substitution was permissible was adequate. By 11:00 a.m. the court determined they would move forward with an alternate juror replacing Juror #2. On the second day of deliberations, the judge recharged the jury and in only 3 hours the defendant was found guilty by the jury with the replaced member. On appeal, the NJ Appellate Court questioned the reason Juror #2 failed to return and the relatively rapid decision by the jury following the substitution of the alternate. The Appellate Court reasoned that, based the previous day's inquiry regarding dismissal of a juror and the rapid decision the following day, that Juror #2 had differences with the remaining jurors as to the guilt or innocence of the defendant and that the court failed to make adequate inquiry into that matter. Although there substitutions for certain reasons are permissible, in State v. Jenkins, 182 N.J. 112, 124 (2004) the court held that substitution is specifically prohibited when requested due to difficulty with other jurors during deliberations. The trial judge made adequate efforts to contact the juror but failed to make adequate efforts to determine the basis of the initial jury inquiry relative to substitution. State v. Hightower, 146 N.J. 239, 253 (1996) established that "any conduct that could upset the process of jury deliberations, even judicial conduct such as juror substitution, must be carefully scrutinized." Based on the lack of record as to why Juror #2 did not return the second day, the there was not adequate information upon which to review the matter of the substitution and any prejudicial effect on the defendant and the Appellate Court reversed the decision and remanded for a new trial. Robbery is a very serious charge bearing heavy consequences. If you are charged with robbery it is critical you obtain experienced criminal defense counsel immediately to review evidence, the prosecutions case and insure the trial process is undertaken in the spirit of justice without breach of your rights. For more information regarding robbery, theft, burglary or other 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.