Aggravated Assault Results In Miscarriage

Laquesha Cathcart and Tisha Cathcart were indicted for second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)), second-degree burglary (N.J.S.A. 2C:18-2), first-degree robbery (N.J.S.A. 2C:15-1), and fourth-degree theft by unlawful taking (N.J.S.A. 2C:20-3(a)) after forcefully entering the victim's apartment following a dispute over a parking spot in New Brunswick, NJ. The Cathcarts assaulted R.L. and J.D., her daughter, in the presence of R.L.'s husband, F.D., and son. R.L.'s daughter and son both advised the defendant's that R.L. was pregnant but they continued the assault. R.L. miscarried within the week. The main issue in this matter is whether the defendants purposely or knowingly attempted to cause serious bodily injury to R.L. The trial court granted the defendant's motion to exclude testimony relating to R.L.'s pregnancy and miscarriage after determining the probative value of the evidence was substantially outweighed by the likelihood it would prejudice the jury against the defendants. The appeal in State v. Cathcart focused on the exclusion of the evidence. N.J. As affirmed in State v. Buckley, 216 N.J. 249 (2013), N.J. Rule of Evidence 403 permits a court to exclude evidence in the event the prejudicial value outweighs the probative value. More than a possibility of substantial prejudice is required State v. Swint, 328 N.J. Super. 236 (App. Div.), cert. denied, 165 N.J. 492 (2000). To exclude evidence, the party seeking exclusion must demonstrate that the evidence is has such "inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation." State v. Thompson, 59 N.J. 396, 421 (1971). A significant consideration in the decision to exclude evidence is also whether other evidence is available to prove the fact the evidence is offered to prove. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2014). Exclusion of certain evidence, such as motive in a criminal matter, requires a higher showing of prejudice. State v. Rogers, 19 N.J. 218 (1955). Conviction for aggravated assault requires proof by the prosecution that each defendant acted with the requisite state of mind or, under circumstances manifesting extreme indifference to human life, acted recklessly in an attempt to cause or did cause such bodily injury pursuant to N.J.S.A. 2C:12-1(b)(1). State v. Mingo, 263 N.J. Super. 296 (App. Div. 1992), rev'd. 132 N.J. 75 (1993). This requires proof of the defendant's mental state at the time of the assault. The State's appeal centered on the fact that the defendants were advised that R.L. was pregnant yet continued with their assault which included kicking and punching R.L. in the abdomen. In its decision to reverse in part and affirm in part, the N.J. Appellate Division determined that the statements regarding R.L.'s pregnancy were highly relevant to the issue of the defendants' mental state but that the testimony regarding the miscarriage was overly prejudicial. Aggravated assault charges are very serious and bear severe consequences including 5 to 10 years in prison, with an 85% parole disqualifier under the No Early Release Act (NERA), and fines of up to $150,000. If you are facing assault charges, you should obtain experienced criminal defense counsel immediately to insure your rights are protected. For more information about assault, robbery, burglary, theft or other serious criminal charges in New Jersey, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Attempted Burglary Suspect Showup Identification Not Unduly Prejudicial

Joseph Volpe was indicted for attempted burglary and convicted of third-degree attempted burglary after a woman, Marwa Mohamad, witnessed him attempting to pry open her kitchen window screen while another individual distracted her by ringing the doorbell of the residence. When the homeowner saw Volpe, it was at close range as she moved a curtain aside to see him standing immediately before her. The description Mohamad offered the 9-1-1 operator was a "heavyset man, with light skin, possibly Hispanic, and black hair" who was wearing a black sweatshirt. Officers in the area hearing the broadcast description discovered Volpe hiding in a nearby wooded area wearing a black t-shirt and also located a black sweatshirt nearby. Officers brought Volpe to Mohamad's residence in the back of a marked police car and wearing handcuffs where she identified him from a distance of approximately 30 feet, through a window of her residence while he remained in the rear of the patrol car with the rear window lowered. In State v. Volpe, a Wade hearing was conducted with regard to Mohamad's identification of Volpe and the court did not find the identification to be unreasonably suggestive. (United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.2d 1149 (1967)). At trial, Mohamad gave testimony regarding the identification. Also, an officer transporting Volpe to the station from the identification offered testimony that Volpe was unemployed at the time of the alleged attempt. The State was not permitted to offer testimony about the defendant's residence in a halfway house at the time of the alleged attempt. The NJ Appellate Division considered defendant's claims regarding the propriety of the identification under the standard of Manson/Madison (Manson v. Braithwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed.2d 140 (1977), State v. Madison, 109 N.J. 223 (1988)) wherein a two-prong test is to be employed to determine whether the identification was impermissibly suggestive and next whether there is a "substantial likelihood of misidentification." In State v. Herrera, 187 N.J. 493 (2006) the court held one-on-one showups to be unduly suggestive but, under State v. Wilkerson, 60 N.J. 452 (1972), the benefits of accuracy of the victim's memory more proximately to the event as well as allowing rapid police action were found to render such identifications permissible in some circumstances. The Manson court held reliability to be paramount in the determination of fairness and set forth five factors courts must assess as follows: "(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the time of the confrontation; and (5) the time between the crime and confrontation. Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154). After a thorough analysis, the Appellate division affirmed the trial court's decision with regard to admissibility of the identification. The Appellate Division determined that the State's testimony regarding defendant's residence was simply offered to rebut testimony offered by the defendant regarding his residence. Although unemployment is typically inadmissible to prove motive (State v. Martini, 131 N.J. 176, 265-66 (1993), it may be admissible if specifically relevant to prove a fact in issue (State v. Rogers, 19 N.J. 218, 228-30 (1955)). Once a statement was made regarding Volpe's employment status, the court admonished the prosecution to refrain from further mention thereof but offered no curative instruction. Nonetheless, the Appellate Division held the statement to be harmless error and not unfairly prejudicial to the defendant. Finally, Volpe challenged the sentence of the court based on misapplication of sentencing factors. With the prosecution's request for an extended term, the range for sentencing would be three to ten years in this matter and the court agreed that the trial court misapplied the sentencing factors. Ultimately, although the conviction was affirmed, the matter was remanded for re-sentencing. Burglary charges are not often lightly sentenced as they involve the possibility of great physical harm when the intruder and the owner or dweller accidentally meet and both act in fear. If you are facing burglary charges, you should seek experienced criminal defense counsel immediately. For more information about burglary, theft, robbery or other serious criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.