Drug Possession Charges In Superior Court Barred By Same Evidence Test

During an undercover drug operation, Rodney Miles was charged with possession of a controlled dangerous substance (CDS) with intent to distribute within 1,000 feet of school property (N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5b(12)) as well as a petty disorderly persons offense of possession of under 50 grams of marijuana (N.J.S.A. 2C:35-10a). While lodged in the Camden County Jail, following indictment, the defendant appeared pro se, waiving his right to counsel, via video conference from the county jail and entered into a guilty plea for the disorderly persons offense of possession of under 50 grams of marijuana after it was downgraded to the offense of loitering to possess marijuana (N.J.S.A. 2C:33-2(b)(1)). During the colloquy during which the plea was entered, Miles attempted to obtain clarification with regard to the specific matter on which he was appearing, and whether charges would remain in the Superior Court following the plea. It was very apparent, from the responses offered by the judge, that the municipal court judge did not understand the questions asked by the defendant regarding his remaining charges. Thereafter, In State v. Miles, Miles sought dismissal of the charges pending in the Superior Court of New Jersey, Law Division, Camden County based on double jeopardy as he had entered a guilty plea to charges stemming from the same event. In State v. Salter, 425 N.J. Super. 504 (App. Div. 2012), the court interpreted the 5th Amendment of the United States Constitution, as well as Article I, 11 of the New Jersey Constitution as protecting against a second prosecution following acquittal or conviction and multiple punishments for a single offense or set of events. In State v. Dively, 92 N.J. 573 (1982), the court held the Constitutional protections to be applicable in the municipal court. Although the court held that fundamental fairness pursuant to the defendant's argument grounded on State v. Yoskowitz, 116 N.J. 679 (1989) was not applicable, any subsequent prosecution in the Superior Court was barred under the same evidence test set forth in State v. Salter. The Court held that the municipal court plea resolved all charges stemming from the defendant's arrest. Drug charges can destroy your future and, if you have prior drug charges, you are subject to harsher sentences each time. If you are facing charges for drug possession or distribution you should consult an experienced criminal defense attorney immediately. For more information about controlled dangerous substances (CDS), distribution, possession, under the influence, paraphernalia or CDS in a motor vehicle visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

S2003/A4229 Promotes Rehabilitation Of Juvenile Offenders

In a move to promote rehabilitation of juvenile offenders, juveniles may receive additional protection from facing trial as adults if S2003, a Senate bill, the same as A4229 in the Assembly, is passed. The bill pertains to how juveniles facing criminal offenses may be tried, held before and after trial, and represented. Presently, juveniles age 14 and over may be tried as adults. S2003 would make 15 the minimum age at which a juvenile could be tried as an adult. S2003 would permit juveniles to be tried as adults only for Criminal homicide other than death by auto, strict liability for drug induced deaths, first-degree robbery, carjacking, aggravated sexual assault, sexual assault, second-degree aggravated assault, kidnapping, aggravated arson, certain gang criminality; or when the juvenile had previously been adjudicated delinquent, or convicted, on the basis of certain offenses enumerated; or when the juvenile had previously been sentenced and confined in an adult penal institution; or offense against a person committed in an aggressive, violent and willful manner; or the unlawful possession of a firearm, destructive device or other prohibited weapon, arson or death by auto while under the influence of an intoxicating liquor, narcotic, hallucinogenic or habit producing drug; or a violation of N.J.S.2C:35-3, N.J.S.2C:35-4, or N.J.S.2C:35-5; or a conspiracy; certain forms of attempt or conspiracy; or theft of an automobile pursuant to chapter 20 of Title 2C of the New Jersey Statutes; or possession of a firearm with a purpose to use it unlawfully against the person of another or the crime of aggravated assault, aggravated criminal sexual contact, burglary or escape if, while in the course of committing or attempting to commit the crime including the immediate flight therefrom, the juvenile possessed a firearm; or computer criminal activity which would be a crime of the first or second degree; and other specific crimes involving controlled dangerous substances. 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. In certain cases juveniles could remain in youth facilities until age 21 even if they are convicted as adults. 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. 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. A prosecutor seeking to move a juvenile matter to the Criminal Part would be required 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. The bill was passed by both the Senate and Assembly and now will move before Governor Chris Christie for consideration. If you or your child have been charged as a juvenile offender, it is critical that you seek an experienced criminal defense attorney immediately to protect your rights and your future. Do not compound one mistake by choosing the wrong criminal defense attorney. For more information about juvenile offenses, gang crimes, and various criminal offenses in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Racketeering Conspiracy Charges Based On Warrantless Search

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

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.

Officer Unqualified To Give Opinion Allows Reversal Of Drug Convictions

Wasan Brockington was convicted of possession of a controlled dangerous substance (CDS), possession with intent to distribute CDS, distribution of a controlled dangerous substance, possession with intent to distribute a controlled dangerous substance in a school zone and conspiracy. The drugs in question were cocaine and heroin. New Brunswick Police were conducting surveillance in a specific location. Sergeant Quick claimed to have witnessed several transactions wherein money was handed by third-parties to the co-defendant, Fitzpatrick, then the defendant would walk down a driveway with the third-party and they would both return within a minute and the third-party would walk off. Quick suspected these were drug transactions and even characterized each transaction as a heroin transaction or a cocaine transaction. However, he made no arrests, had no evidence to test and claimed to be at a substantial distance viewing the transactions through binoculars. At some point, officers closed in and saw Brockington throw down a newspaper with bags of suspected heroin inside and found 2 bags each of heroin and cocaine on the third-party suspected drug buyer leaving the scene. After police seized Brockington and the evidence, he advised that all of the drugs were his and that the co-defendant was innocent. In State v. Brockington, the defendant filed a motion to suppress his statement, to compel the disclosure of the officers’ surveillance point and other pre-trial motions but all were denied by trial judge in the Superior Court of New Jersey, Law Division, Middlesex County. The defendant also objected to the inclusion of Sergeant Quick’s testimony regarding drug transactions he allegedly witnessed as his testimony was elicited by the prosecutor in a manner making him appear to be an expert on the subject of drugs and drug transactions when he offered that he could discern cocaine from heroin at a great distance but the court allowed it. At the conclusion of trial, no limiting instruction to the jury was requested. Brockington was sentenced to 10 years with a 5 year parole ineligibility period. Defendant appealed and the N.J. Appellate Division looked to N.J.R.E. 701as interpreted in the similar matters of State v. McLean, 205 N.J. 438 (2011) and United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005), cert. denied, 552 U.S. 1154, 128 S. Ct. 1100, 169 L. Ed.2d 831 (2008) wherein it was held that “a lay opinion must be the product of reasoning processes familiar to the average person in everyday life.” The Appellate Division found the opinion of Sergeant Quick to far exceed the established boundary of lay opinion testimony. The prosecutor also bolstered Quick’s testimony as credible and accurate which further prejudiced the defendant in violation of the strictures set forth in State v. Bradshaw, 195 N.J 493 (2008) and State v. Frost, 158 N.J. 76 (1999). The Appellate Division then reviewed and compared a litany of cases to determine whether testimony about the other alleged transactions in which no arrests were made and from which no evidence was retrieved violated N.J.R.E. 404 (b) and determined it may be used as the probative value was not likely substantially outweighed by prejudice to the defendant. The matter was ultimately reversed and remanded for a new trial based on the likelihood of unfair prejudice toward Brockington. Penalties for drug distribution in NJ are severe and lasting, often including lengthy prison terms with significant parole ineligibility periods. If you have been charged with a drug offense an experienced criminal defense attorney can protect your rights. For more information about drug distribution, possession, possession with intent to distribute or controlled dangerous substances (CDS) visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Limit On Police Requests For Passengers To Exit Vehicle

In State v. Bacome, a pretextual motor vehicle stop led to the discovery of a controlled dangerous substance (CDS) in a vehicle. The NJ Appellate Division affirmed that police must have a “reasonable and articulable belief that their safety is in danger” before they can order passengers to exit a motor vehicle during a traffic stop. On April 11, 2014, Tawain Bacome and another gentleman suspected of drug use and distribution were followed by Woodbridge detectives to Newark. While in Newark, the detectives lost sight of the vehicle and returned to Woodbridge to wait for the vehicle to return. Upon seeing the vehicle coming into town, the detectives also noticed the passenger was not wearing a seatbelt and conducted a stop during which the passenger was ordered from the vehicle. Upon the passenger’s exit from the vehicle, the detectives saw certain evidence of crack use in plain view and used the evidence to obtain the vehicle’s owner’s consent to search. Ultimately, 13 vials of crack were discovered in the vehicle and Bacome was charged with drug possession and intent to distribute. The NJ Superior Court, Law Division, Criminal Part of Middlesex County denied Bacome’s motion to suppress the crack cocaine and other evidence found during the stop. On appeal, the NJ Appellate Division upheld State v. Smith, 134 N.J. 599, 637 A.2d 158 (1994) which set forth the need for police to have “reasonable and articulable belief that their safety is in danger” before they can order passengers to exit a motor vehicle during a traffic stop. Smith is more restrictive on police than the requirements set forth in the U.S. Supreme Court ruling in Maryland v. Wilson, 518 U.S. 408 (1997) wherein it was established that police officers were permitted to instruct passengers to exit a motor vehicle as long as the vehicle is stopped for a lawful reason. The NJ Appellate Division found the stop to be pretextual, based not on the passenger’s failure to wear a seatbelt but rather the detectives’ interest in searching the vehicle for evidence of drug use or distribution. The Appellate Division determined that the evidence should be suppressed and Bacome allowed to withdraw his guilty plea. If you are now facing charges as a result of a warrantless search and seizure, you should obtain experienced criminal defense counsel to represent you against the State’s charges. For more information about traffic stops, search and seizure, warrant requirements, warrantless searches, drug possession or distribution charges or other serious criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

No Alternative To Jail For Driving While Suspended For DUI

Anthony Frezza was charged with operating a motor vehicle while suspended for multiple driving under the influence (DUI) (N.J.S.A. 39:4-50) charges pursuant to N.J.S.A. 2C:40-26(b) after being stopped on the Atlantic City Expressway in the early morning hours of February 4, 2012. Pursuant to the statute, the requisite sentence is 180 days in jail without parole with no sentencing discretion afforded to the court. After a trial in State v. Frezza at which the defendant was found guilty, the municipal court judge sentenced Frezza to 180 days in jail without parole with alternatives including house arrest. The State cross-appealed and appeal filed by Frezza challenging the sufficiency of evidence. The NJ Appellate Division relied on State v. Pitcher, 379 N.J. Super. 308, 319 (App. Div. 2005) in holding that Frezza’s motor vehicle record was admissible as prima facie evidence that he was suspended for driving while intoxicated (DWI) at the time he was stopped and admitted to driving while suspended. Frezza was serving a suspension for a second DUI offense and, pursuant to State v. Cuccurullo, 228 N.J. Super. 517, 520-21 (App. Div. 1988), a driver is suspended for DUI when the sentence is imposed, even if the driver is still serving a suspension for an earlier event. In State v. French, 437 N.J. Super. 333, 335-39 (App. Div. 2014), the court clarified that a 180 day jail sentence without parole is required and no sentencing alternatives are permissible. As a result, the NJ Appellate Division reversed the sentence and remanded for sentencing in conformance with the statutory requirements of N.J.S.A. 2C:40-26(b). DWI charges, whether for alcohol or drugs, are very serious charges and can lead to loss of driving privileges up to 10 years as well as incarceration. Additionally, the newly created statute regarding driving while suspended for multiple DUI offenses guarantees a 6 month jail term. If you are facing charges or charges of driving while suspended for DUI it is critical that you obtain experienced defense counsel immediately. For more information about driving while suspended for DUI, DWI, DUID, controlled dangerous substances (CDS) in a motor vehicle, refusal to submit to chemical breath tests, reckless driving or other serious motor vehicle charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Drug Addicted Defendants No Longer Denied Admission To Drug Court For Weapons Charges

Over the rejection of the prosecution, Gregory Maurer sought entry into Drug Court while under separate indictments for (1) third-degree possession of a controlled dangerous substance (CDS) (ocycodone) (N.J.S.A. 2C:35-10(a)(1)); (2) two counts of third-degree possession of CDS (oxycodone and heroin) (N.J.S.A. 2C:35-(a)(1)); (3) third-degree possession of CDS (cocaine) (N.J.S.A. 2C:35-10(a)(1)); and (4) two counts of third degree theft by unlawful taking (N.J.S.A. 2C:20-3(a)) and third-degree burglary (N.J.S.A. 2C:18-2(a)(1)). The prosecutor’s denial was based solely on Maurer’s prior charge for possession of a handgun (N.J.S.A. 2C:39-5(b)) and hollow point bullets. The trial court made its decision based on the defendant’s prior conviction for a weapons related offense and Maurer appealed. In State v. Maurer, the NJ Appellate Division determined that the defendant’s record, the “Manual for Operation of Adult Drug Courts In New Jersey” (July 2002)(Manual) and the Drug Court Statute (N.J.S.A. 2C:35-14). The NJ Appellate Division did consider that Maurer had also been charged with witness tampering (N.J.S.A. 2C:28-5) and other prior CDS charges which were remanded to the respective municipal courts for disposition. They also considered Maurer’s participation in Narcotics Anonymous and other substance abuse counseling programs as well as his employment as an outreach counselor at a rehabilitation facility. The NJ Appellate Division considered that Drug Court is appropriate for “offenders most likely to benefit from treatment and do not pose a risk to public safety.” State v. Meyer, 192 N.J. 421, 428-29 (2007) (quoting Manual, Supra, at 3). The opinion also included a thorough review of Drug Court success rates and the Legislative intent to end the cycle of drug offenders interacting with the criminal justice system as a result of addiction. State v. Bishop, 429 N.J. Super. 533, (App. Div.), 216 N.J. 14 (2013). There was also discussion of a two “track” system wherein, according to the Manual, a criminal history involving a firearm acts as a bar to admission in spite of the apparent Legislative intent to increase Drug Court access for those likely to benefit from resolving addiction issues. The Court resolved that an amendment to the Track Two admission criteria was required and remanded the matter for consideration of the defendant’s application to Drug Court despite his prior weapons offense. If you are facing distribution or possession charges, there are many factors which may affect how your case is ultimately resolved. You should immediately retain experienced criminal defense counsel to protect your rights. For more information regarding drug distribution, possession with intent to distribute, weapons offenses or other serious criminal offenses in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI Conviction Becomes Easier For State

The appeal of a Union County driving under the influence (DUI) charge led to removal of yet another burden of proof previously borne by the State. In State v. Peralta, the defendant sought to suppress the Alcotest result of .19% blood alcohol content (BAC) as a result after the officers processing the arrest failed to read the standard refusal statement required by N.J.S.A. 39:4-50.2(e). The municipal court refused to suppress the Alcotest reading and Peralta was convicted of driving while intoxicated. Of note is the fact that the officers observations were not found to be sufficient to convict the defendant of DUI. On appeal, the Law Division also convicted Peralta based on the BAC result. On appeal to the NJ Appellate Division the court held that the refusal statement was created by the Legislature for the purpose of advising those who would refuse to provide a breath sample that those driving on the roads of New Jersey are "deemed to have given their consent to the taking of samples of their breath", N.J.S.A. 39:4-50.2(a), and advise them of the consequences of such a refusal. State v. Marquez, 202 N.J. 485 (2010). The Appellate Division indicated that N.J.S.A. 39:4-50.2(e) was not created to add an additional burden on officers processing DWI matters where the accused is willing to provide a breath sample upon request. If you are facing charges of DUI or refusal, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DUI, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Dash Camera Video Available In Traffic Cases?

In October 2014, New Jersey Superior Court Judge Vincent Grasso issued two rulings regarding police dash cam video records that have stirred quite a bit of interest from attorneys who handle traffic cases in New Jersey. As an attorney, I routinely hear a story from my clients which differs greatly from the contents of the police report I receive in response to my discovery request. Although the officer prepares a routine report at the end or shortly after their shift, they handle many similar matters day in and day out. This results in an awareness of what highlights to give attention to when writing a report as well as a blurring of their memory as to specific incidents as a result of substantial similarity in driving under the influence (DUI) stops, reckless driving stops and other motor vehicle stops. On the other hand, a driver facing DUI, reckless driving, careless driving or other motor vehicle charges is likely to be stopped on an infrequent basis and have absolutely no confusion about the conditions and events surrounding the motor vehicle stop. On the other hand, the driver is most often unfamiliar with the statute under which they are being stopped and the portions of the event they recall specifically may not relate to the statutory factors which will determine their guilt or innocence. For example, drivers often focus on conditions external to the stop which, in their opinion, gave rise to the circumstances resulting in the stop such as the need to move a vehicle after consuming alcohol. In either version of the event, the officers or the defendant's, there is the possibility for error. If Judge Grasso's ruling with regard to the cases, including Ganzweig v. Township of Lakewood, result in the routine provision of video footage to the public, the diverging stories will become of less import as there will be an accurate and unbiased video recording of the event for the defendant, the officer, the prosecutor, defense counsel and the judge to view. As it stands, obtaining video of traffic stops, when available at all, can be challenging resulting in substantial delays of the matter and frustration to clients paying attorneys for continued court appearances for no purpose other than discovery motions with regard to the video sought in any particular matter. If you are facing charges for a traffic violation including DUI, driving under the influence of drugs (DUID), reckless driving, driving while suspended, controlled dangerous substances (CDS) in a motor vehicle or other traffic matters you can face incarceration, loss of license, substantial fines and surcharges and increased insurance rates. You should seek an experienced municipal court attorney to protect your rights. For more information about traffic court matters visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Second DUI Offense Requires Mandatory Confinement

Roger Dent struck two vehicles stopped at a red light and was charged with driving under the influence (DUI)(N.J.S.A. 39:4-50), careless driving (N.J.S.A. 39:4-97), possession of an open container of alcohol (N.J.S.A. 39:4-51(b)) and failure to wear a seatbelt (N.J.S.A. 39:3-76.2(f)). The defendant was convicted of DUI in municipal court and sentenced to 180 days in prison as a third offender, as well as 10 year loss of driving privileges and substantial fines. Dent had three prior convictions for driving while intoxicated (DWI). Due to one of the prior DUIs being without counsel, that particular DUI could not be used to enhance any future custodial sentences for DUI pursuant to State v. Laurick, 120 N.J. 1 (1990). Following appeal of the municipal court decision, in the Superior Court of New Jersey, Camden County. Dent was sentenced to 60 days in prison as a second-time DUI offender which, pursuant to the judge, he could serve in the County Supplemental Labor Service (CSLSP), frequently referred to as SLAP. In State v. Dent, the State appealed the sentence as contrary to N.J.S.A. 39:4-50(a)(2) and (3) which specifies a minimum 48 hour period of incarceration which is also not to exceed 90 days and that said sentence “shall not be suspended or served on probation…” but the statute does allow for “county jail, to the workhouse of the county wherein the offense was committed, to an inpatient rehabilitation program or to an Intoxicated Driver Resource Center…” The NJ Appellate Division held that, pursuant to State v. Johnson, 42 N.J. 146, 174 (1964), “imprisonment was intended to be mandatory” for second-time or subsequent DWI offenders and remanded the matter to the Superior Court for resentencing. Dent’s argument that his 48 hours in an Intoxicated Driver’s Resource Center satisfied the 48 hour incarceration period may be considered by the Law Division as credit against any sentence he may be given thereby. If you are convicted of DUI you face serious penalties including loss of license for up to 10 years, incarceration for up to 180 days and substantial fines. You should obtain an experienced DUI attorney immediately to help fight your case. For more information about DWI, drug DUI (DUID), controlled dangerous substance (CDS) in a motor vehicle, reckless driving, refusal to submit to a breath test or other serious motor vehicle offenses in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

180 Days In Jail For Driving While Suspended For DUI

James French had been convicted of 9 Driving Under the Influence (DUI) events prior to being stopped by police in Warren County, NJ who observed him to be driving erratically and to have an inoperable brake light on his vehicle. He was sentenced, by Warren County Superior Court Judge Ann Bartlett, to 90 days in jail followed by 90 days in an inpatient treatment facility. The Prosecutor appealed French's sentence as not meeting the requirements of the applicable statute. In 2011, the NJ State Legislature passed new legislation, N.J.S.A. 2C:40-26(b), directed at driving while suspended for DUI. The statute was drafted by the legislature to punish those driving while suspended for multiple DUIs. N.J.S.A. 2C:40-26(b) makes driving while suspended for a second or subsequent DUI or refusal to submit to chemical breath tests a 4th degree criminal offense and requires a 180 day jail sentence with no possibility of parole. Under DUI Statute, N.J.S.A. 39:4-50, a 3rd or subsequent DUI is punished by a minimum 180 days in jail, 90 of which may be served in an inpatient rehabilitation facility. In State v. French, the NJ Appellate Division decided that the legislative intent in drafting N.J.S.A. 2C:40-26(b) was to levy a higher penalty on those who would continue to drive while suspended for DUI. In reversing the decision of the Warren County Superior Court Judge, the NJ Appellate Division determined that the statute plainly includes a 180 day jail sentence without eligibility for parole and makes no provision for inpatient rehabilitation. DUI is a very serious offense with substantial consequences including jail and loss of driving privileges which may result in loss of your job and other consequences. If you are facing DUI charges, you should obtain an experienced DUI defense attorney immediately. For more information about DUI, Driving While Intoxicated (DWI), underage DUI, drug DUI, controlled dangerous substance (CDS) in a motor vehicle or other serious driving infractions in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Mandatory And Discretionary Extended Terms In Drug Case?

James Robinson sold 3 bags of crack cocaine to an undercover officer in 2003 and was indicted for third-degree possession of a controlled dangerous substance (CDS) with intent to distribute (N.J.S.A. 2C:35-5(b)(3)); second-degree possession of CDS with intent to distribute within 500 feet of public property (N.J.S.A. 2C:35-7.1); third-degree possession of CDS (N.J.S.A. 2C:35-10(a)(1)); and third-degree possession of CDS with intent to distribute (N.J.S.A. 2C:35-5(b)(3)). Due to Robinson's prior criminal history, including convictions for distribution of CDS in a school zone, receiving stolen property, eluding a police officer, burglary, and criminal restraint exposing another to serious bodily injury, the trial court imposed a discretionary extended term sentence of 15 years imprisonment with a 3 year period of parole ineligibility, a mandatory extended term of 15 years with a 5 year period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(f) as a repeat drug offender under N.J.S.A. 2C:44-3(a) in State v. Robinson. Defendant was also sentenced to a mandatory extended term of 7 years imprisonment with a 3 year period of parole ineligibility. Defendant appealed the sentence claiming that a court may not impose a discretionary extended term when a mandatory extended term has been imposed in the same proceeding. The appellate division affirmed the decision of the trial court. The NJ Supreme Court then reversed the decision after consideration of the Legislative intent in providing for extended terms for certain repeat offenders. Under the Model Penal Code (MPC), sentencing uniformity was a consideration in conjunction with affording courts the flexibility to achieve deterrence as needed. N.J.S.A. 2C:44-5(a)(2) limits the number of extended terms which a court may impose in a sentencing, however, multiple mandatory extended terms may be imposed in a single proceeding (State v. Connell, 208 N.J. Super. 688 (App. Div. 1986)). The court then turned to the holding of State v. Hudson, 209 N.J. 513 (2012) and N.J.S.A. 2C:44-5(a)(2) to be a bar to the addition of a discretionary extended term when the trial court is required to impose a mandatory extended term on another offense if both are in the same proceeding. If you are facing charges for possession or distribution you will be facing severe penalties and should seek experienced criminal defense counsel immediately. For more information about distribution of a controlled dangerous substance, possession of CDS, possession with intent to distribute, distribution within 500 feet of a public place, distribution in a school zone, prescription drug matters or other serious drug offenses in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

DUI Blood Withdrawal Does Not Require Warrant

In State v. Sekhon, a single car fatal accident took place in which it was believed the defendant was driving under the influence (DUI). A passenger died when the vehicle exited the roadway and crashed. Responding officers detected an odor of alcoholic beverages on the driver, who admitted to having two drinks, but the officers had no opportunity to take breath samples as the driver was taken to the hospital by ambulance from the scene. At the hospital blood was drawn from Sundeep Sekhon without seeking a warrant and without the defendant's consent. Although the defendant's blood alcohol content (BAC) was only .062, the prosecution still intended to utilize the evidence to show defendant was drinking before the accident in the second-degree vehicular homicide case. There is a long history of cases relating to the need to preserve evidence creating exigent circumstances as balanced against the 4th Amendment right to be free from unreasonable searches and seizure. Missouri v. NcNeely _______U.S. ________, ________, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) considered the premise that the speed with which a warrant may be obtained, exigent circumstances may no longer be presumed in DUI matters requiring a blood sample rather than breath sample. In State v. Adkins, 433 N.J. Super. 479 (App. Div. 2013), the Appellate Division held that the exclusionary rule does not require suppression of blood tests taken without a warrant in certain circumstances as long as the motor vehicle stop occurred before McNeely was decided. Adkins requires the that police have probable cause to believe that the driver was under the influence and that the police action in taking the blood samples occurred in good faith reliance on then existing law. Under the guidance of McNeely and Adkins the NJ Appellate Division held that the BAC results from Sekhon need not be suppressed. DUI charges carry serious and lasting consequences. If you are facing DUI charges, you should seek experienced defense counsel immediately to protect your rights. For more information regarding DUI, drug DUI, controlled dangerous substance (CDS) in a motor vehicle, reckless driving or other serious municipal court matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Prior DUI Convictions Enhance Penalty For Refusal In NJ

In the recent case of State v. Frye, the NJ Supreme Court upheld the use of prior Driving Under the Influence (DUI) convictions to enhance the sentence for refusal to submit to chemical breath testing. In Frye, the defendant was convicted to a 10 year loss of license as a result of 2 prior DUIs. Although the court held, in State v. Ciancaglini, 204 N.J. 597 (2011) that a prior refusals to submit to chemical breath testing could not be used to enhance penalties for subsequent DUIs, the Frye court found the logic behind this instant decision to be different. The Court reasoned that, failure to utilize prior DUI convictions to enhance refusal convictions would then leave a strategic opportunity to repeat DUI offenders to obtain a significantly reduced penalty for subsequent offenses by simply refusing to submit to the Alcotest. The chemical breath test refusal statute, N.J.S.A. 39:4-50.4a, does contemplate enhanced sentencing for repeat refusal offenses in a manner which parallels enhancement for repeat DUI offenses bringing the Frye decision in line with the Legislative intent of keeping intoxicated drivers off NJ roads. The Frye decision is not the first of its kind in New Jersey. In re Bergwall, 85 N.J. 382 (1981), decided by the NJ Supreme Court over 30 years ago, held that a prior DUI convictions should be used to enhance suspensions in refusal cases. If you are facing charges of DUI or refusal, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DUI, controlled dangerous substance (CDS) in a motor vehicle, reckless driving 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.

Dilapidated Does Not Mean Abandoned In Warrantless Search

The NJ Supreme Court recently decided State v. Brown, a case in which a warrantless search undertaken by police uncovered a gun, drugs and drug paraphernalia within a residence. After receiving information from two confidential witnesses and a concerned citizen, police conducted surveillance on two non-consecutive days at a run-down residence with the electric meter removed, broken windows, a padlock on the front door, the rear door off the hinges but propped close from the inside and the inside littered with trash. Trooper Kurt Kennedy received information that one of the defendants had a sawed-off shotgun in the residence, was stashing controlled dangerous substances (CDS) inside for distribution and possessed a key he utilized to enter. Kennedy observed, on four separate occasions during one day, individuals approach one of the defendants and provide him with cash and then watched him walk up to the residence, unlock the door, enter and quickly exit the residence and provide the purchasers with suspected CDS. On a second day, Trooper Kennedy observed 14 such transactions. NJ State Troopers arrested four defendants after observing what they considered to be drug activity within an abandoned house within which the defendants were trespassing. Kennedy and the other Troopers made conclusions based on the area being known for crime and general knowledge obtained from being assigned to the area. There were no exigent circumstances apparent, the troopers did not take the time to review the property's deed, tax records, utility records and the like. However, Kennedy did look up Strong, the defendant with the key, and found him listed as residing nearby. Strong also had prior drug convictions. The Troopers also observed similar activity at another residence nearby but did not undertake a warrantless entry of that home as they recognized it to be occupied. Upon obtaining evidence from the warrantless search of the first residence, the police used the "fruit of the poisonous tree" to secure a warrant for the residence they recognized as inhabited. The NJ Supreme Court, in State v. Brown, set forth the presumptiveness against warrantless searches as the backdrop for their review. State v. Johnson, 193 N.J. 528 (2008), State v. Elders, 192 N.J. 224 (2007). The state bears the burden of proving a warrantless search falls within one of several well delineated exceptions to the warrant requirement. State v. Pineiro, 181 N.J. 13 (2004). If the property was truly abandoned, the defendant could not have a possessory interest and therefore no expectation of privacy in the property. The fact that police obtained a key, from one of the defendants, to the padlock on the front door prior to conducting the warrantless search should have indicated that the defendants were exercising control over the property to some degree and alerted them that a warrant was required prior to entry. Under State v. Linton, 356 N.J. Super. 255 (App. Div. 2002) the state would have to show a reasonable belief the house was abandoned and no expectation of privacy could have existed in order to justify the warrantless entry. Before holding the that the state failed to meet its burden of proof due to the NJ State Police failure to determine the property was abandoned or the defendants were trespassers, the court also stated the contrary premise that the police do not need a warrant when observing a stranger inside a structure with a broken front door lock and a door wide open. Clearly the warrant requirement is subject to broad interpretation as it would be difficult to know who is a stranger or an owner in every house in every community and, from the court's example, there is a distinction between doors off hinges and doors wide open with broken locks. The difference between having a search upheld or suppressing evidence obtained from a search rests on small legal distinctions. If the police obtained evidence against you in what you believed to be an illegal search, it is critical that you obtain experienced criminal defense counsel to defend you against the prosecution. For more information about warrantless search, search and seizure, drugs, weapons or other criminal issues in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Warrantless Search Leads To Drug Charges

In State v. Tepper, the police entered a woman’s residence without a warrant and she was subsequently charged with 3rd degree possession of a controlled dangerous substance (CDS) with intent to distribute (N.J.S.A. 2C:35-5a) as a result of marijuana the police observed while in the residence. The defendant’s motion to suppress the evidence based on the unlawful entry of the police onto her property was denied when the Somerset County Superior Court Judge held that the warrantless entry was valid under the “community caretaking” doctrine. Police went to the defendant’s residence based on a school bus driver’s complaint about a car, bearing her tags, passing the bus while stopped. When they arrived at the residence, officers found the car in question and knocked to no avail. Seeing lights on in the residence and allegedly finding a rear sliding door ajar, the police entered the residence without a warrant believing a burglary to be in progress or recently committed. Upon their search of the entire residence, the officers located several jars in the basement containing marijuana, some Ecstasy pills, paraphernalia and cash. The 4th Amendment of the United States Constitution, as well as the NJ Constitution, bars warrantless searches and seizures unless there one of the well-delineated exceptions apply. The basis of each exception is reasonableness of the search when reviewed under the totality of the circumstances. There is a presumption against warrantless searches and seizures and the prosecution bears the burden of justifying the entry into private property without a warrant. Additionally, people have a right to the greatest amount of privacy within their homes and warrantless searches thereof should be subject to the highest scrutiny. In undertaking their search, the officers entered the rear yard of the residence and entered upon a rear deck which is overreaching without a warrant, however, the Appellate Court deemed this to be simply for the purpose of contacting the residents and not illegal. At the time the decision was made to deny the suppression motion State v. Vargas, 213 N.J. 301 (2013) had not yet been decided. In Vargas, the NJ Supreme Court set forth a test to determine the validity of a warrantless search. The NJ Appellate Division remanded to the trial court for a determination under the Vargas test. If you are facing drug charges or believe you are being prosecuted in a matter based on an illegal search by the police, you should obtain experienced criminal defense counsel to represent you against the state and protect your rights. For more information about drug charges, warrantless searches or other serious criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Intent To Distribute Verdict Reversed Due To Improper Prosecution Tactics

Debra Rogers and Lameen Hill were charged with third degree possession of a controlled dangerous substance (CDS) with intent to distribute cocaine (N.J.S.A. 2C:35-10a(1)), second degree possession of a controlled dangerous substance (CDS) with intent to distribute 1/2 ounce or more of cocaine (N.J.S.A. 2C:35-5a(1),b(2), conspiracy to distribute cocaine (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5) and possessoin of cocaine with intent to distribute in a school zone (N.J.S.A. 2C:35-7). The State dismissed he conspiracy and school zone charges and Rogers was found guilty of second degree possession of a CDS with intent to distribute and third degree possession of a CDS with intent to distribute and sentenced to an extended 10 year term with a 5 year period of parole ineligibility due to a prior conviction in 1999 for distribution of CDS (N.J.S.A. 2C:35-5b(3)). In State v. Rogers the defendant appealed based on inadmissibility of the state expert's opinion as to whether items seized were for narcotics packaging and distribution, failure to charge the jury on assessment of witness credibility, multiple challenges to the warrant, lack of a fair trial and sentencing error in regard to the 5 year parole disqualifier imposed. The NJ Appellate Division affirmed the conviction for simple possession but reversed the conviction for possession with intent to distribute based on the improper opinion testimony presented by one of the investigating officers. In 2009, Perth Amboy detectives were watching defendant's apartment and noted several people coming and going therefrom within a relatively short period of time. The defendant also left the premises and was arrested upon departing from a doctor's appointment outside the residence and was returned to the apartment by police who used her key to enter the apartment and arrest other adults within, including Rogers parents, due to outstanding warrants. Co-defendant, Hill, confessed to having cocaine on his person as he was about to be searched incident to arrest for warrants. The officers proceeded to search the apartment and located 1.2 ounces of cocaine, $13,000 in cash, and three digital scales. The drugs and money were located in Roger's bedroom. Sergeant Muntone of the Midddlesex County Prosecutor's Office testified, without objection by defense counsel, that the items discovered were possessed with intent to distribute. The Appellate Division referenced State v. Timmendequas, 161 N.J. 515, 576-77(1999) which defines plain error as error possessing a "clear capacity to bring about an unjust result" and prejudices the defendant's "fundamental right to have a jury fairly evaluate the merits of the defense." The NJ Appellate Division found Muntone's testimony to be improper on its face and likened it to State v. McLean, 205 N.J. 438 (2011) wherein the prosecution elicited opinion testimony of an officer which was an unqualified expert opinion. Had Muntone been qualified as an expert under the requirements of State v. Odom, 116 N.J. 65 (1989) the testimony would have been admissible. The Appellate Division considered the fact that expert testimony offered by an investigating officer bears an inherent risk of substantial prejudice (State v. Barry, 140 N.J. 280 (1995)). Additionally, the Appellate Division took issue with the manner in which the prosecution presented the opinion testimony to effectively usurp the jury's role in considering how they will utilize "such testimony in their deliberations." Odom. The jury was not guided in the manner they could consider the opinion testimony of Muntone. Lastly, when defense counsel does not object to improper opinion testimony, it is the responsibility of the trial judge to act accordingly and exclude such testimony. State v. Nesbitt, 185 N.J. 504 (2006). Based on the Appellate Division's decision to reverse the conviction for possession of a controlled dangerous substance with intent to distribute they had no further need to address the resultant extended sentence and parole disqualifier. If you have been charged with possession or possession with intent to distribute controlled dangerous substances you must obtain experienced criminal defense counsel immediately in order that all appropriate procedures are followed by the police and the prosecution in the prosecution of your case. There are frequently problems with consent to search, warrants, Miranda, inappropriate denial of suppression motions and improper trial procedure which may make a substantial difference in the outcome of your matter. For more information about CDS, possession, intent to distribute, prescription CDS, distribution and other drug charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Insanity Defense Does Not Require Bifurcated Trial

From the ruling in State v. Khan, 175 N.J. Super. 72 (App.Div. 1980) through the ruling in State v. Handy, a 2004 murder case in Paterson, NJ, the rule was that criminal defendants seeking to employ an insanity defense would have bifurcated trials in which their insanity defense was tried separately from any other defenses they may have. For the foreseeable future, criminal defendants will be forced to make difficult decisions, judges are going to have to give detailed explanations to juries about inconsistent defenses and juries will have to learn to compartmentalize the defenses presented and consider them separately. There is definite reason for concern on the part of defendants given the complexity of this approach for juries and the ease with which a judge may fail to properly instruct a jury. Robert Handy was charged with the January 2004 murder of his uncle Arthur Cooper who died from a single stab with a knife to the heart. Handy had a history of mental illness which included his hospitalization in psychiatric facilities. Handy also made the claim that his uncle was high on cocaine and hit him with a piece of metal pipe maintaining that the stabbing was in self-defense. Passaic County Superior Court Judge Joseph Falcone found that handy was not competent to stand trial after an insanity defense was presented and without being permitted to raise his self-defense claim, Handy was confined to a mental institution. Handy was thereby prevented from presenting the weapon he claimed his uncle used against him, a bloody piece of metal pipe partly hidden under a couch which the uncle was apparently next to when stabbed. The pipe had the words "King Reveal" painted upon it and the same words were tattooed on the uncle's body. Defendant appealed and sought the opportunity to present his self-defense claim. According to the ruling of NJ Appellate Division, a defendant does not have to raise an insanity defense first subjecting themselves to commitment to a mental institution. Alternatively, however, if defendants opt to utilize an alternate defense initially, they may not then utilize an insanity defense if their first defense fails. In making its ruling, the Appellate Court evaluated Khan in light of our State's Criminal Code and found it to be in conflict with several aspects. Additionally, the Appellate Division determined Khan to be contrary to the approach used in other states and based upon District of Columbia law that is no longer valid. Serious criminal charges are certain to have a lasting impact on your future. A guilty plea or verdict in a murder case, even to a lesser charge, will change your life forever through incarceration, loss of future opportunities and social stigma. If you are facing criminal charges, you should consult experienced criminal defense counsel immediately to begin preparing your defense. For more information about murder, weapons, drugs (CDS) or other serious criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Drug Suppression Motion For Warrantless Search Denied

In State v. Salladino the defendant was indicted for 3rd theft of movable property (N.J.S.A. 2C:20-3) and 3rd degree possession of a controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10a1). The defendant won a suppression motion relating to the Oxycodone found during the warrantless search by police. The prosecution filed an interlocutory appeal and the N.J. Appellate Court determined that, although the Oxycodone was found during a search of the defendant's person exceeding the scope of Terry v. Ohio, 392 U.S. 1 (1968), the drugs would have inevitably been discovered when the defendant was searched incident to the arrest for the robbery charges. According to the court's holding in State v. Sugar, 100, N.J. 211 (1985) if the evidence would have inevitably been discovered as a result of an independent and predictable circumstance, it remains admissible even if seized by other unlawful means. The Appellate division held that the suppression motion should not have been granted and remanded for further proceedings. Following a call from a robbery victim, police located 2 suspects in the vicinity matching the description given by the victim. The officer in charge of the investigation ordered that the suspects be brought before the victim for a show-up identification. Prior to transporting Salladino to the show-up, a police officer conducted a pat-down search of the defendant to ensure the defendant has no weapons. During the frisk, the officer felt a "hard bulge" and retrieved a pill bottle without a label or lid which contained 83 Percocet pills. The officer seized the pills but made no arrest regarding the Percocet. The suspects were positively identified by the victim during a show-up identification and they were arrested. At no time between the stop and the arrest could the defendant have removed the pills from his person without notice by the police, therefore, the Percocet would have been inevitably discovered during the search incident to arrest even though retrieving the pill bottle from the defendant's person exceeded the scope of a Terry stop as there was no reasonable basis to conclude the defendant was armed and the officer never claimed he believed the "hard bulge" was a weapon. If you are facing drug charges and believe evidence obtained against you may have been obtained in violation of your rights, you should consult with an experienced criminal defense attorney immediately. For more information about controlled dangerous substances, robbery, warrantless searches, CDS in a motor vehicle or other criminal issues in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.