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.

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 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.

Assault Conviction For Off-Duty Police Officer

Newark police officer, Hugo Fierro, was indicted for second-degree official misconduct (N.J.S.A. 2C:30-2), third-degree aggravated assault causing bodily injury (N.J.S.A. 2C:12-1(b)(7)), third-degree aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)); fourth-degree aggravated assault by pointing a handgun at another person (N.J.S.A. 2C:12-1(b)(4)) and second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)) after a an off-duty altercation outside an Essex County bar while out with his wife. He was convicted by a jury of simple and aggravated assault (N.J.S.A. 2C:12-1) and official misconduct and sentenced to 5 years in prison without parole, the minimum for official misconduct under N.J.S.A. 2C:43-6.5.1. Evidence offered at trial indicated that Fierro, while off duty and walking with his wife in the Ironbound section of Newark after dinner and dancing, encountered a group of men drinking on the street and went out of his way to order them to disperse. He next identified himself as a police officer to another intoxicated man and guided him by the arm toward a street to help him obtain a cab. At this time, the victim claimed he approached and Fierro yelled "what's your problem? What's your problem?" and tried to grab the victim. Upon finding himself unable to catch the victim, Fierro withdrew a gun from his side, stated he was a police officer, pursued the retreating victim and hit him in the face with the barrel of the handgun at which time the victim fled. The following day the victim reported the incident and selected Fierro's photo out of a photo array. An outdoor camera had recorded the incident and Fierro was positively identified. However, Fierro testified that, while he was trying to assist an intoxicated man to a cab, the victim approached, would not go away when Fierro asked, twice slapped Fierro's hand when he attempted to create space between them and was acting in a manner which caused Fierro to believe the victim may attack. Fierro claimed that he did not strike the man but did push him away by placing his hands on the victim's chest and pushing him back while holding his gun as he believed the victim may have possessed a weapon. Additionally, an officer who took the victim's report testified that there was no visible damage to the victim's face at the time the report was made. On appeal, in State v. Fierro, the defendant argued that the jury's split verdict demonstrated the juror's lack of understanding of the elements of the charges. The NJ Appellate Division considered Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 461 (1984), State v. Banko, 182 N.J. 44 (2004), State v. Muhammad, 182 N.J. 551 (2005) and others in holding that a split verdict does not definitively indicate that the jury did not fully understand and properly execute its function. The conviction was affirmed on appeal. Assault and attempted assault charges are very serious and bear severe consequences. If you are a police officer or other official, the consequences are even more severe. 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 DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Weapons Offense Merges Into Burglary Charge

Sherrone Robinson was charged with third-degree conspiracy to commit aggravated assault (N.J.S.A.. 2C:5-2; 2C:12-1); second-degree conspiracy to commit burglary (N.J.S.A. 2C:5-2, 2C:18-2); second-degree burglary (N.J.S.A. 2C:18-2); second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a); second-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b); second-degree possession of a weapon by a convicted person (N.J.S.A. 2C:38-7); fourth-degree aggravated assault (N.J.S.A. 2C:12-1b(4)); and third-degree hindering apprehension (N.J.S.A. 2C:39-3b(1)). Robinson pled guilty to second-degree burglary and second-degree possession of a weapon for an unlawful purpose in exchange for dismissal for the other charges. For the burglary the state recommended a 4 year prison term and concurrent 5 year term for the weapons offense. The burglary offense was subject to an eighty-five percent parole ineligibility period under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2) while the weapon offense carried a mandatory minimum term of three years pursuant to the Graves Act (N.J.S.A. 2C:43-6(c)). In State v. Robinson, Robinson later appealed the sentence arguing that the weapon possession was for the purpose of the burglary and should be merged therewith rather than included as a separate conviction and offense. In making his argument for merger, Robinson relied on State v. Tate, 216 N.J. 300, 302 (2013) (citing State v. Davis, 68 N.J. 69, 77 (1975)), which held that an accused committing a single offense cannot be punished as if they committed more than one offense. State v. Messino, 378 N.J. Super. 559, 585 (App. Div. 2005) provided an alternative analysis of N.J.S.A. 2C:1-8, regarding merger of offenses, which suggested a more "flexible approach" to merger wherein the elements of the crimes are considered. In State v. Diaz, 144 N.J. 628, 636 (1996), the court held that "when the only unlawful purpose in possession the [weapon] is to use it to commit the substantive offense, merger is required." The NJ Appellate Division reviewed the record and noted that defense counsel stated the prison terms as set forth in the plea agreement, the judge then reviewed those terms with the defendant on the record and the defendant indicated a full understanding thereof. The Appellate Division decided that the defendant received the benefit of the plea bargain as his counsel negotiated the plea bargain with the State on his behalf. The Appellate Division remanded the matter for correction of the judgment of conviction to reflect merger of the convictions and a sentence of 5 years total of which 4 were subject to an 85 percent parole disqualifier under NERA. 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, weapons, assault, theft, robbery 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.

Juvenile Offender Will Be Treated Differently Under NJ Senate Bill 2003

In a move to promote rehabilitation of juvenile offenders, juveniles may receive additional protection from facing trial as adults if New Jersey Senate Bill 2003 (S2003) is passed. The bill pertains to how juveniles facing criminal offenses may be tried, held before and after trial and the level of representation required in hearings to move juvenile matters to the Criminal Part of the Superior Court. Presently, juveniles age 14 and over may be tried as adults. S2003 would raise the minimum age at which a juvenile could be tried as an adult to 15. S2003 would permit juvenile to be tried as adults only for the most serious offenses including criminal homicide; strict liability for drug induced deaths; first-degree robbery; carjacking; sexual assault; second-degree aggravated assault; kidnapping; aggravated arson; certain gang criminality; a crime committed at a time when the juvenile had previously been adjudicated delinquent or confined to an adult correctional facility; violent, aggressive, and willful crimes against another; unlawful possession of a firearm, destructive device or other prohibited weapon; arson; death by auto if the juvenile was operating the vehicle under the influence of an intoxicating liquor, narcotic, hallucinogenic or habit producing drug (DUI); a violation of N.J.S.2C:35-3, N.J.S.2C:35-4, or N.J.S.2C:35-5; a conspiracy which is a part of a continuing criminal activity and the circumstances of the crimes show the juvenile has knowingly devoted himself to criminal activity as a source of livelihood; an attempt or conspiracy to commit any of certain enumerated acts; theft of an automobile; serious computer criminal activity; distribution of any controlled dangerous substance or controlled substance analog while on any property used for school purposes, or within 1,000 feet of such school property. The State would bear the burden of proving that the nature and circumstances of the charge or the prior record of the juvenile are sufficiently serious that the interests of the public require waiver. Juvenile cases are typically heard in Family Court and, under S2003, they would be entitled to counsel, either private or appointed, during all hearings relating to the transfer of their individual case from the Family Part to the Criminal Part. S2003 would require a prosecutor seeking to move a juvenile matter to the Criminal Part to provide written notice to the Family Part judge setting forth the reasons the transfer is being sought. Additionally, the Family Part judge would be required to undertake their own analysis and then accept or reject the prosecutor’s motion. Juveniles age 14 and over may now be housed with adults but S2003 would prohibit juveniles under 18 from being incarcerated in adult jails or prisons rather than the current limit of 16 years old. At present, juveniles may be placed in solitary confinement for not more than ten days per month. As the concept behind S2003 is rehabilitation first and foremost, solitary confinement of juveniles would be a measure of last resort and heavily restricted. If all other avenues are exhausted and the juvenile remains a threat to facility security or others solitary confinement may be utilized for no more than two consecutive days for juveniles who are 15 years of age, three consecutive days for juveniles ages 16 and 17 and up to a maximum of five days for juveniles age 18 and over. In further accord with the goal of rehabilitation, academic instruction and academic counseling, vocational education, post-secondary educational opportunities, alcohol and narcotics treatment programs, mental health services, medical and dental care, regular contact with the family members, work programs to prepare the juvenile for treatment, re-entry services, and any other services or assistance reasonably related to the rehabilitation of the juvenile shall be provided as appropriate. S2003 is sponsored by Democrats and received no support from the Republican party. The bill passed the Senate and is presently in the Assembly for consideration and revision. If you are a juvenile facing criminal charges your future is at stake and should not be left to chance. Your future and freedom may depend on the outcome of your case making it imperative that you seek experienced defense counsel immediately. For more information about juvenile offenses including drug charges, possession of a controlled dangerous substance (CDS) in a school zone, assault, sex crimes, school issues, breaking and entering, gang related crimes, burglary or other serious matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Oral Argument Is Favored in Post-Conviction Relief Petitions

Isaiah Kinney was charged with first-degree conspiracy to commit murder (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3); second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)); first-degree attempted murder (N.J.S.A. 2C:11-3); fourth-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(d)); and third-degree possession of a weapon for an unlawful purpose and convicted of second-degree aggravated assault and second-degree conspiracy to commit aggravated assault (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:12-1(b)(1)) after a trial in the Superior Court of New Jersey, Law Division, Essex County. Kinney was sentenced to a discretionary extended 20 year period of incarceration with an 85% parole ineligibility period under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2). Kinney and Jones severely beat Floyd Simmons at a residence on Prospect Street in East Orange. After leaving the residence, Jones committed a minor driving infraction and crashed while fleeing an East Orange Police officer who noticed that, although Jones appeared not to be injured from the crash, her pants were covered in blood. Prior to Jones being chased by the officer, Kinney had exited the vehicle at a residence on Washington Terrace. Based on statements made by Jones to police, officers proceeded to the Washington Terrace residence to arrest Kinney. While at the residence without a warrant, officers discovered bloodstained clothing belonging to Kinney. At the trial level, Kinney filed a motion to suppress the evidence based on the officers’ illegal search and seizure but the suppression motion was denied. In State v. Isaiah Kinney, the Defendant appealed unsuccessfully then sought post-conviction relief (PCR) based on ineffective assistance of assistance of counsel. The record on the Appellate level was noticeably devoid of any reference to the illegal search and seizure. The NJ Appellate Division found that oral argument in a post-conviction relief petition wherein the defendant exercises a last opportunity to raise reliability issues is deserving of oral argument although the determination of whether oral argument will be heard rests within the discretion of the PCR court. State v. Mayron, 344 N.J. Super. 382, 386 (App. Div. 2001). In State v. Parker, 212 N.J. 269, 282 (2012), the N.J. Supreme Court reinforced the factors set forth in Mayron and included that PCR judges should provide a statement of reasons for denying oral argument. The Appellate Division hearing the PCR matter determined that oral argument could have resolved uncertainty with regard to the absence of pursuit of the suppression motion but the PCR judge incorrectly held that, under State v. Moore, 273 N.J. Super. 118, 126 (App. Div. 1994), the claim of ineffective assistance of counsel with regard to the suppression motion could only be raised in Kinney’s petition to the Supreme Court. The Appellate Division reasoned that, as there is no right to review by the Supreme Court, the PCR judge’s ruling on this matter deprived the defendant of his right to a determination on the issue. It was further determined that the lack of any record established by oral argument pertaining to the suppression motion rendered them unable to give adequate review to the PCR petition and the Appellate Division remanded the matter with direction that the matters of the suppression motion and ineffective assistance of counsel be reviewed. If you are faced with aggravated assault charges, you are facing up to 10 years in prison with an 85% parole ineligibility period under NERA. Even simple assault charges can result in incarceration and should not be taken lightly by you as they will certainly not be taken lightly by the court. If you are charged with assault you should obtain experienced defense counsel immediately. For more information about assault, aggravated assault, conspiracy, murder, unlawful possession of a weapon 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.

Aggravated Assault and Robbery Convictions Reversed Due To Comments At Trial By Detective And Prosecutor

Anthony Coles was charged with second-degree robbery (N.J.S.A. 2C:15-1) and third-degree aggravated assault (N.J.S.A. 2C:12-1(b)(7)) after a physical altercation with another man outside a store in Union County, NJ wherein Coles allegedly robbed the man of several hundred dollars. Although the store had a recording system, the detective charged with obtaining the video failed to obtain the pertinent part thereof in order to bolster the State's case. Prior to the taping over of the portion of the video wherein Coles and the victim both appeared in the store, the video was viewed by officers who responded to the scene as well as the victim who identified Coles in the video as the person who beat and robbed him. Coles indicated that he knew the victim prior to the event because he had previously purchased marijuana from the victim and gave a different version of the reasons for the altercation. In State v. Coles, the detective charged with obtaining the video testified regarding the benefit the missing video would have offered the State's case as well as opinion testimony with regard to the State's case in general. Over the objection of defense counsel, the trial judge permitted the testimony of the detective and inappropriate statements made by the prosecutor during the state's closing argument. Based on the cases presented, the defendant was convicted of theft from the person (N.J.S.A. 2C:20-2(a)(2(e)) and simple assault (N.J.S.A. 2C:12-1(a)(1)) and sentenced to an extended 9 year term in prison as a persistent offender under N.J.S.A. 2C:44-3(a) with a discretionary parole disqualifier of 4.5 years. The NJ Appellate Division looked to State v. McLean, 205 N.J. 438 (2011) and State v. Vandeweaghe, 177 N.J. 229 (2003) regarding the matter of lay opinion testimony removing one function of the jury. McLean specifically sets forth that officer testimony may "include opinion…or what the officer 'believed', 'thought' or 'suspected,'…"McLean, 205 N.J. at 460. The Appellate Division determined it was error by the trial court to permit the detective's opinion testimony. Additionally, State v. DiFrisco, 137 N.J. 434, 474 (1994) and State v. Ramseur, 106 N.J.123, 322 (1987) lent guidance to the Appellate Division with regard to reversal of a conviction when the prosecution's closing arguments deprive the defendant of a fair trial. The Appellate Division held it impermissible for the prosecutor to use the defendant's presence at trial to discredit testimony provided by the defendant in summation as "tailored" after presentation of the state's case pursuant to State v. Daniels, 182 N.J. 80 (2004) and felt the impropriety to have raised a strong question regarding whether the defendant's right to a fair trial was upheld. As a result of the likelihood that defendant was deprived of his right to a fair trial the NJ Appellate Division remanded the matter for a new trial. Aggravated assault and 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 aggravated assault, 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.

Attempted Murder Suspect Entitled To Fair Trial

Geraldo Rivera was charged with the attempted murder (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1)) of Sean and Michael Burns during a bar fight over Sean Burns' failure to tip the barmaid, Rivera's fiancée'. Sean Burns was left with four stab wounds to the torso and Michael Burns' was cut severely exposing his intestines. Rivera, who claimed self-defense, also suffered head wounds. Multiple witness accounts diverged considerably leaving the jury to decide which version was most plausible. At trial, the prosecutor utilized various methods, including PowerPoint to present the State's case. Rivera was ultimately convicted of second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)) on Sean Burns and fourth-degree aggravated assault (N.J.S.A. 2C:12-1(b)(3)) on Michael Burns. Rivera was sentenced to eight years in prison with a period of parole ineligibility under the No Early Release Act (N.E.R.A.)(N.J.S.A. 2C:43-7.2). On Appeal in State v. Rivera, Rivera challenged the conviction based upon the State's unfair trial tactics depriving him of the right to a fair trial. The NJ Appellate Division determined that the prosecutor's display of Rivera's picture on a slide with the word guilty on it and other overly suggestive acts including climbing into the jury box at one point while Rivera was seated at the prosecutor's table to operate a projector as if to indicate fear of the defendant deprived Rivera of a fair trial. 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.

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 PTI Application After Guilty Verdict

Sean Bell was indicted for second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)) and third-degree aggravated assault (N.J.S.A. 2C:12-1(b)(7)) after fighting with another man at a party. Bell tried the case based on the second-degree charge which prevented his application to the Pre-Trial Intervention program (PTI)(N.J.S.A. 2C:43-12 to -22). During trial in State v. Bell, the second-degree charges were dismissed but Bell was convicted of the third-degree charges and made application to the PTI program. The Law Division admitted Bell to PTI in part due to Bell's reliance on State v. Halm, 319 N.J. Super. 569 (App. Div.), cert. denied, 162 N.J. 131 (1999). The State appealed based on the application being filed out of time under N.J. Court Rule 3:28(h) and State v. Wallace, 146 N.J. 576 (1996), wherein a dismissal of a second-degree offense was found not to justify a PTI application out of time. The NJ Appellate Division reversed finding Pre-Trial Intervention applications were required to be made prior to trial. On appeal, the State distinguished Halm by the timing of the defendant's PTI applications as well as the nature of the underlying charges. After substantial consideration of the purpose of diversionary programs, the NJ Supreme Court affirmed the Appellate Division's holding that the purpose of PTI was to offer defendants an opportunity to avoid the stigma of a guilty verdict and prevent use of additional judicial resources at trials. Further, the NJ Supreme Court held that permitting defendants to seek PTI after a guilty verdict would modify the program into an unintended "alternative sentencing option". Assault and aggravated assault charges are very serious and bear severe consequences including long-term incarceration. If you are facing charges of assault or aggravated assault, you should obtain experienced criminal defense counsel immediately to insure your rights are protected. For more information about assault, aggravated assault, assault with a deadly weapon 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.

Reversal of Manslaughter Conviction After Jury Accesses Taped Statement

Matthew Craddock was convicted of first-degree aggravated manslaughter (N.J.S.A. 2C:11-4(a)(1)), as a lesser included offense of murder charges, for the stabbing death of James Grace, who was dating Craddock's ex-girlfriend, M.P. He was also convicted of 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)). At trial, in addition to other evidence presented, the jury heard the defendant's entire taped confession to the police as well as a voicemail the defendant left on his girlfriend's phone after the incident. Testimony for the State was also provided by M.P., her friend L.A., and L.A.'s fiance' Mi.P who all witnessed the altercation between Craddock and Grace. None actually witnessed the actual stabbing but they did hear Grace yell "he stabbed me" and one saw the defendant throw an object that appeared to be a knife handle into the road. The defendant offered a different version of the facts than the others and claimed his actions were in self-defense as an altercation erupted when he was attempting to retrieve M.P.'s cell phone from another individual, Grace, who the defendant believed had stolen the phone. Craddock was sentenced to an aggregate 24-year term with an eighty-five percent parole ineligibility period under the No Early Release Act (NERA)(N.J.S.A. 2C:43-7.2). Craddock appealed based on the admission of the taped statements without redaction under claim that certain information in the recordings was more prejudicial than probative. In State v. Craddock, the NJ Appellate Division considered the holding in State v. Burr, 195 N.J. 119 (2008) wherein it was determined that allowing a jury full access to a videotaped statement had the potential for great prejudice. In State v. Miller, 205 N.J. 109 (2011) the court held that the review, by the jury, of taped statements should be undertaken in court where parties are present and judges my provide jury instructions with regard to portions replayed. Finally, in State v. A.R., 213 N.J. 542 (2013) the court held that the jury should not have unfettered access to audio or videotaped statements during deliberations. Once the appellate division determined that the trial court erred in providing the jury with unfettered access to the taped statements, it was further determined that the potential prejudice to the defendant from the jury's access to the statements was not harmless error and the conviction was reversed with the matter remanded to the trial court for a new trial. If you are facing charges of murder, manslaughter or weapons charges, you are facing severe penalties including as much as life in prison. When confronting criminal charges, it is imperative that you have experienced criminal defense counsel at your side to ensure you are afforded due process and your rights are protected. For more information about murder, manslaughter, weapons offenses 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.

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.

Attempted Assault Plea Reversed For Lack of Factual Basis

Lee Travers pled guilty to second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)) and second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)). Travers appealed his convictions and his sentence of 8 years subject to an 85 percent parole disqualifier under the No Early Release Act (NERA)(N.J.S.A. 2C:43-7.2). Police discovered a loaded gun in Travers car after receiving a call that he pointed a gun at his wife in front of their children, threatened to kill her and then pulled the trigger multiple times while Travers was under the influence. Although the gun found in Traver's car was older and had problems it did fire when examined by the State's expert and the defense expert never had opportunity to examine the gun as it had been mistakenly destroyed by the State. In State v. Travers, the NJ Appellate Court heard Defendant's appeal based on his provision of a factual basis which maintained that he did not have the intent to cause serious bodily injury to his wife and merely said what he was told to say in order to enter into the plea. The plea transcript included Travers' statement "[w]hen she said don't kill me, I pulled it out and I showed it that it didn't work and wasn't real." After reading the transcript of the factual basis, the NJ Appellate Division did find the factual basis insufficient to establish the specific intent necessary to obtain a conviction for attempted aggravated assault as it was not clear whether Travers believed the gun to be operable at the time of the incident. Pursuant to State v. Sainz, 107 N.J. 283, 293 (1987), a Defendant must set forth sufficient facts constituting the essential elements of the crime. Attempted aggravated assault requires the purposeful attempt to cause serious bodily injury (N.J.S.A. 2C:5-1(a)(1)). The Appellate Division also quoted State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986), "one cannot logically attempt to cause a particular result unless causing that result is one's 'conscious object'. The Appellate Division took no position as to Travers' belief that the gun was operable but only as to the insufficient factual basis when it reversed and remanded the matter. 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 DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Rap Lyrics Are Not Evidence Of Prior Crimes

Vonte Skinner was charged with attempted murder (N.J.S.A. 2C:5-1a(3), 2C:11-3a(1)); aggravated assault resulting in serious bodily injury (N.J.S.A. 2C:12-1b(1)); and aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1b(2)); unlawful possession of a deadly weapon (N.J.S.A. 2C:39-5); and possession of a weapon with an unlawful purpose (N.J.S.A. 2C:39-4a) and convicted of attempted murder (N.J.S.A. 2C:5-1a(3), 2C:11-3a(1)); aggravated assault resulting in serious bodily injury (N.J.S.A. 2C:12-1b(1)); and aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1b(2)). Skinner received an extended term of 30 years in prison and subject to certain parole ineligibility and supervision under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2). Skinner’s case arose as a result of the 2005 shooting of Lamont Peterson multiple times at close range with a handgun. Evidence at the scene, including a cell phone belonging to Skinner, led to his arrest. During Skinner’s arrest, while driving someone else’s vehicle, his rap lyrics were recovered on the back seat of the vehicle. Peterson survived and advised the police that Peterson and Skinner both sold drugs for Brandon C. Rothwell. After Skinner joined the team as the third man, Peterson’s profits fell and he began keeping some of Rothwell’s money. Peterson and Skinner both testified that on the night of the shooting they had been in cell phone contact multiple times to arrange a meeting during which Skinner was to buy cocaine from Peterson. When Peterson arrived to meet Skinner, Rothwell was with Skinner. Peterson remembered seeking Skinner and the gun but no other details. Skinner testified that just as Peterson was about to give him the drugs he heard a gunshot and he and Peterson both ran off in different directions. Both sides offered witnesses at trial giving conflicting testimony. The State’s main evidence was the Defendant’s rap lyrics. The jury was not advised that the lyrics were written over several years but did hear an extensive portion of the lyrics and was made aware that the lyrics were in the first person view of a narrator named “Threat” which is a name Skinner has tattooed on his arm. The lyrics described multiple violent acts by “Threat”. The matter was appealed by the Defendant based in part on the reading of Skinner’s rap lyrics to jurors by the prosecution for the purpose of establishing motive and intent on the part of Skinner. The Defendant claimed the lyrics were not properly authenticated and inadmissible under N.J.R.E. 404(b) due to substantial prejudice to defendant outweighing their probative value. The NJ Appellate Division cited State v. Crumb, 307 N.J. Super. 204 (App. Div. 1997) and State v. Koskovich, 168 NJ. 448 (2001) which held that creative writing is merely expressive and does not constitute bad acts themselves and therefore writing comes within N.J.R.E. 404(b). The NJ Appellate Division determined the reading of the lyrics to be prejudicial to Skinner and prohibited by N.J.R.E. 404(b). The NJ Supreme Court heard State v. Skinner and rendered its decision on August 4, 2014. The Justices found that there was no real connection between the lyrics and the murder other than to inaccurately portray his depiction of street violence to establish Defendant’s motive and intent and upheld the decision of the NJ Appellate Division that the lyrics were highly prejudicial and of minimal probative value. The NJ Supreme Court heard the State’s argument that, under Joynes v. State, 797 A.2d 673, 677 (Del. 2002) that the act of creating rap lyrics is not, in and of itself, a “bad act” and should be governed under that standard of relevance under N.J.R.E. 401. The Court disagreed reasoning that N.J.R.E.404(b) is to protect a defendant from evidence which proves little while doing substantial harm. The Court’s primary analysis of admissibility under N.J.R.E. 404(b) was analysis of the 4 prongs of State v. Cofield, 127 N.J. 328, 336 (1992): (1) that the other crime, wrong or bad act evidence pertains to some material issue in dispute in the instant matter; (2) the other crime is similar in kind and reasonably close in time to the offense charged ; (3) proof the evidence of the other crime must be clear and convincing; and (4) any probative value is not outweighed by prejudice. If you are charged with a crime, there are strict limits to evidence which the State may use against you in making its case. To protect your freedom and rights if you are charged with any violent crime, you should consult with experienced criminal defense counsel immediately. For more information about murder, sexual assault, drugs, weapons charges or other serious crimes in New Jersey visit DarlingFirm.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.

What Is The Harm In Delaying A Final Restraining Order?

When a NJ Superior Court judge made the decision to issue a Final Restraining Order (FRO) in the defendant’s absence in a domestic violence case, the NJ Appellate Court reversed. Due to the substantial ramifications to an individual once an FRO is issued against them for the presumed need for protection by the victim of the alleged domestic violence, the Appellate Court determined that it was a violation of the defendant’s due process rights to prevent him from the opportunity to participate in his defense. The NJ Appellate Division judges held that, when the case was less than one month old and the alleged victim had the benefit of a Temporary Restraining Order (TRO), defendant had retained counsel for the hearing and counsel requested only a brief adjournment and defendant offered a valid physician’s note explaining his failure to appear at the hearing, the trial judge erred in denying defendant’s motion to vacate the FRO. The trial judge, in denying the defendant’s motion to vacate the domestic violence FRO in O.K-H. v. D.H., made a finding on the papers submitted that the defendant and his physician lacked credibility and the defendant was attempting to abuse the criminal justice system. A Final Restraining Order can have severe consequences on your future including the loss of professional licenses or opportunities, the inability to own or possess a firearm and the social stigma associated with the restraints against you. If you are facing an FRO or believe you need the benefit of an FRO against another for your protection, you should consult an experienced criminal defense attorney to ensure your rights are protected. For more information about domestic violence, restraining orders, assault, harassment or other criminal or municipal court matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney in your matter.

Domestic Violence Offenders Subject To Electronic Monitoring In NJ

A bill, A-321, awaiting the signature of NJ Governor Chris Christie will launch a pilot program in Ocean County for the monitoring of those found guilty of domestic violence. Named Lisa's Law after Letizia Zindell, a woman murdered by her former fiancé, Frank Frisco, the day after his release from jail in 2009 for violating a restraining order for her protection. The pilot program will be tested for a period of 4 years and a report will be furnished at the end of the term whereby the program may be expanded throughout the state of New Jersey if it is deemed beneficial in saving victims of domestic violence from further harm. Upon being found guilty of domestic violence offenders could, at the judges' discretion, be required to wear a monitoring bracelet and victims could be notified if their attackers come within a certain proximity. The Administrative Office of the Courts (AOC) opposed this bill due to the financial expense and what they perceive will be a drain on judicial resources as offenders have more frequent and lengthy hearings to oppose the imposition of monitoring bracelets. The AOC also cited lack of ability to estimate the number of defendants the system would have to process and monitor as well as lack of specificity in the legislation regarding which agency would bear responsibility for monitoring to ensure compliance with the program in voicing their opposition to the program. As drafted, offenders would be required to pay all or a portion of the expenses related to monitoring and notification, based on their ability to pay. There is no proposed method of ascertaining the defendant's ability to pay but, much like other programs involving inability to pay and the right to appointed counsel, monitoring is burdensome and frequently overlooked permitting those with ample resources to avoid payment and place a higher burden on the state's taxpayers to bear the defendant's legal fees. Removal of the bracelet would be a 3rd degree crime punishable by 3-5 years in prison. Victims would be permitted to, but not required to, consent to notification if the defendant enters within an area of close proximity. One must wonder what purpose the legislation would serve in the event a victim were to opt out of notification and the need for monitoring in such circumstances. Domestic violence is a very serious charge in New Jersey and the need to deter would be abusers has resulted in escalating penalties over time. If this bill passes, which is most likely to be the case, offenders will be subject to the prior penalties of fines, possible incarceration, inability to own firearms or obtain a firearms ID card as well as this new monitoring bracelet which could alert were the abuser to as much as unwittingly enter into the same restaurant or store as the victim and result in investigative detention and possible further punishment of the abuser following a hearing on the matter. If you are charged with domestic violence or seeking a final restraining order against an abuser, the increased stakes for a guilty finding will result in increased burdens of proof for both parties in proving or disproving the charges making it critical that you obtain experienced criminal defense counsel to represent you in such matters. For more information regarding domestic violence, restraining orders, assault, battery and other criminal law issues in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

NJ Municipal Courts Prepare To Roll Out Diversionary Program

Until now, Municipal Court defendants accused of drug charges could apply for a Conditional Discharge and Superior Court defendants accused of other crimes could apply for Pre-Trial Intervention (PTI) but Municipal Court defendants accused of disorderly or petty disorderly persons offenses had no such opportunities available. Now, municipal courts are preparing for the new Conditional Dismissal program to take effect. Legislation was signed in September by Governor Christie to remedy the unfairness municipal court defendants faced as a result of the lack of a "second chance" program for certain minor offenses. Previously, the only thing that could be done was to downgrade disorderly or petty disorderly persons offenses to local ordinance violations which would still result in a criminal record for the defendants. Defendants who successfully complete the Conditional Dismissal program, including a year on probation, restitution to any victims, court costs, fines and other mandatory or discretionary assessments will not appear as a prior conviction for the defendants. Defendants are eligible for only one diversionary program in their histories. Meaning, if you have used a Conditional Discharge or PTI, you will not be eligible for a Conditional Dismissal. Additionally, if you utilize the Conditional Dismissal program you will not be able to use it again in the future. Additionally, defendants charged with DUI, gang activity, animal cruelty, offenses against the elderly, disabled or minors and official breach of public trust are ineligible for entry into the program. Those facing charges for controlled dangerous substances (CDS) in municipal court are eligible for a Conditional Discharge but not Conditional Dismissal. Criminal charges of any kind, even disorderly or petty disorderly persons offenses such as shoplifting or simple assault committed while young or during a lapse of good judgment can have significant and lasting impacts on your ability to enter certain schools, obtain certain professional licenses, obtain employment requiring public trust, security clearances and the like as well as the stigma that can accompany a criminal record. As a result of the way criminal charges can restrict your future opportunities, earnings, lifestyle and associations it is critical that you seek and experienced criminal defense attorney to assist you in any criminal charges you face, no matter how minor those charges may seem at the moment. For more information regarding Conditional Dismissal, Conditional Discharge, Pre-Trial Intervention, disorderly persons offenses, petty disorderly persons offenses, controlled dangerous substance, shoplifting, simple assault or other Municipal Court matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Eyewitness Identification And Criminal Defense

In State v. Henderson, 27 A.3d 872 (N.J. 2011), an indictment for first degree murder was issued by a grand jury and the defendant was ultimately convicted of manslaughter, aggravated assault, and weapons charges after a jury trial in which much weight was placed on an eyewitness identification. In the underlying matter, a man was shot and killed while another, who had been smoking crack and drinking wine, was held at bay in another room by an armed accomplice. The accomplice was identified by the man he held at bay during a photo lineup in the police station 13 days after the shooting. A Wade hearing was granted to determine the admissibility of the eyewitness ID and applied the Manson/Madison test to determine whether the criteria were met. The trial court decided the ID procedure implemented by the police was not impermissibly suggestive nor did it imply a very substantial likelihood of irreparable misidentification and the eyewitness ID was admitted. The New Jersey Supreme Court considered factors which may affect an individual's memory and divided them into lineup procedures, controlled by police, and estimator variables, including the witnesses age, lighting, lapse of time between the event and ID as well as other similar variables over which the police have no control. The defendant has the initial burden of showing police procedures were "impermissibly suggestive." Unless there is irreparable harm, the court should present the jury with appropriately tailored instructions. The lineup, 13 days after the crime, was presided over by a detective other than the primary investigator, the eyewitness did not make an ID until told by the police to "do what he had to do" so they could be finished and the eyewitness testified he felt pushed to selecting the defendant from the lineup presented. The Court held that suggestive comments of the investigating officers during the identification procedure were substantial enough to entitle Henderson to a pretrial hearing and remanded the case for a hearing that weighs all system and estimator variables, meaningfully deters police from suggestive procedures, permits jurors to knowledgably evaluate the effects of factors on memory and flexible so as to guarantee fair proceedings. Eyewitness identification procedures are exceedingly fallible. If you have been charged with a crime as a result of eyewitness identification, there are multiple ways to attack the state's case against you and it is critical that you obtain an experienced criminal defense attorney immediately to protect your rights. For more information regarding aggravated assault, weapons charges, drug charges and other criminal matters in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.