Sexual Assault Was Apparent To Judge But Sentencing Not As Obvious

Marvin Flores-Gamez was indicted for first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(1)); 2 counts of second-degree sexual assault (N.J.S.A. 2C:14-2(b)); and third-degree endangering the welfare of a child by engaging in sexual conduct with the victim (N.J.S.A. 2C:24-4(a)). In 2011, the Flores-Gamez contacted 12 year old Susan on Facebook, when Flores-Gamez was 19. Susan and Flores-Gamez traded messages on Facebook for some time before he began to mention the idea of having sex with her. In November 2011, Susan agreed to meet Flores-Gamez, with Susan's cousin, Kate, and Kate's boyfriend, Tim, present. The 4 went to Susan's house and the men gave the children juice that tasted like alcohol. Flores-Gamez and Susan ended up alone together in the bedroom and, when Susan resisted his advances, Flores-Gamez removed her clothes and began to have sex with her. When he refused to stop, Susan bit Flores-Gamez on the hand to make him stop. For the next 5 days, Susan and Flores-Gamez exchanges messages on Facebook until Susan's father discovered Susan had missed school and, during the subsequent inquiry, learned what had happened. Susan's father took her to the police station and, during an investigation, Flores-Gamez provided a statement with facts similar to those Susan provided. At trial, the Defendant did not testify. Both Tim and Kate testified that the Defendant and Susan were never alone together and that the Defendant did not sexually assault Susan. A psychologists report was also offered to show that Susan had indicated Tim's mother was also in the apartment and was the one who stopped the sexual assault. Following a trial in the Superior Court of New Jersey, Law Division, Bergen County, Flores-Gamez was found guilty of 2 counts of second-degree sexual assault. Flores-Gamez was sentenced to a concurrent 8 year term for both counts, subject to an 85% parole disqualifier under the No Early Release Act (N.E.R.A.) (N.J.S.A. 2C:43-7.2). In State v. Flores-Gamez, the defendant appealed. The N.J. Appellate Division affirmed the decision of the trial judge except defendant's sentence. The Appellate Division held that the trial judge did not follow proper procedure with regard to sentencing. The judge listed the aggravating and mitigating factors, without making any specific findings in regard thereto, and then meted out the sentence. The judge found aggravating factors one and two; however, the victim's age was an element of second-degree sexual assault and could not be considered. Also, the trial judge failed to give any indication that the mitigating factors raised by the defendant were considered. The Appellate Division remanded for resentencing. If you are charged with a sex crime you are subject to incarceration, registration as a sex offender and the accompanying stigma which will effect where you may live, where you may work and how others will treat you and possibly even civil commitment. It is critical that you obtain experienced criminal defense counsel to assist you with these charges. For more information about rape, endangering the welfare of a minor, sexual assault, criminal sexual contact and other sex crimes in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

No Right To Own Firearms If Determined A Danger To The Public Health, Safety and Welfare

Firearms purchaser identification cards and purchase permits may be denied in the event of danger to the "public health, safety and welfare" pursuant to N.J.S.A. 2C:58-39(c)(5) of the New Jersey Gun Control Law. In 1998, Z.L. was acquitted of a domestic violence charge. Between 2003 and 2011 the police were called to the residence of Z.L. and his wife on five separate occasions for domestic violence issues. In 2013, Z.L applied for a gun purchase permit and the police chief denied the application in light of the prior history of domestic violence. The matter was tried and a Monmouth County Superior Court Judge determined that the permit should not be granted. On appeal, the N.J. Appellate Division held that Z.L. has demonstrated the propensity to react violently and that the presence of a firearm in such a situation has the potential for great harm and no permit should be issued to him. For more information about gun laws in New Jersey including obtaining a gun permit, possession of illegal weapons, unlawful possession of a weapon, regulations on BB guns and paintball guns and other weapons offenses visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Domestic Violence Charge Leads To More After Audio Recording

Kingkamanu Nantambu was arrested for domestic violence when police responded to a 911 call and his girlfriend, Crystal Aikens, reported he had threatened her with a gun. Nantambu reported that Aikens had threatened him with a knife and required medical treatment for multiple cuts. When a search of his apartment revealed a handgun hidden under a bed, he was also charged with weapons offenses. Finally, Aikens reported that Nantambu offered her money in exchange for more favorable testimony and was charged with bribery of a witness (N.J.S.A.2C:28-5(d)) and witness-tampering (N.J.S.A.2C:28-5(a)). Aikens agreed to allow police to record a telephone conversation between herself and Nantambu. After approximately 8 minutes of the conversation took place another call came in which Aikens took then resumed the call with Nantambu. Shortly after the call with Nantambu was resumed, the recording was cut off. By the time detectives reconnected the recording device, the call ended. In State of New Jersey v. Kinkamau Nantambu, 221 N.J. 390 (2015), Nantambu sought to exclude the recording as unreliable. The New Jersey Superior Court judge hearing the case granted the motion to suppress the recording of two conversations between Aikens and Nantambu. The State appealed. State v. Driver, 38 N.J. 255 (1962), State v. Dye, 60 N.J. 518, 531, cert. denied, 409 U.S. 1090, 93 S. Ct. 699, 34 L. Ed. 2d 675 (1972), and State v. Cusmano, 274 N.J. Super. 496, 517 (App. Div. 1994), inform that the omission of a portion of a conversation does not require exclusion of the entire conversation. In Driver, the court established a test for the admissibility of audio recordings which set forth 5 criteria: (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement. The N.J. Appellate Division held that, under precedent, including the test set forth in Driver, the recording was admissible and reversed the decision of the N.J. Superior Court. 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 you are charged with domestic violence or are seeking a final restraining order against an abuser, you will find yourself in the position of proving or disproving the charges. It is 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 DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI Suspicion Is Not A Reason To Draw Blood Without A Warrant

In 2010 Timothy Adkins was arrested for driving under the influence (DUI)(N.J.S.A. 39:4-50), after the vehicle he was operating struck a utility pole, injuring himself and two passengers. Adkins failed the field sobriety tests administered by police and was ultimately taken to the hospital, where the police obtained a blood sample from Adkins. Adkins blood alcohol level (BAC) was .157 percent, almost twice the legal limit of .08 percent. In Missouri v. McNeely, 569 U.S.___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), the U.S. Supreme Court held that the natural dissipation of alcohol from the blood stream over time does not, on its own, give rise to exigent circumstances such that a warrant may be avoided when the police are seeking a blood sample. Therefore, unless the individual suspected of driving while intoxicated is involved in an accident, a warrant is required. In State v. Adkins, 433 N.J. Super. 479 (App. Div. 2013) a trial judge determined that the blood sample taken from Adkins without a warrant was inadmissible. The New Jersey Appellate Division reversed the ruling based on Schmerber v. California, 384 U.S. 757 (1966) wherein the U.S. Supreme Court ruled that drawing blood from an individual suspected of drunk driving was acceptable. In McNeely, the U.S. Supreme Court established a new standard based on the fact that, through radios, cellular phones and facsimiles, obtaining a warrant is a much simpler and expedient process for police. As a result of the ruling in McNeely, the N.J. Supreme Court, in Adkins, DUIdetermined that the results of the blood sample, withdrawn without a warrant, must be suppressed. If you are facing DUI charges, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DWI, refusal to submit to chemical breath testing, controlled dangerous substances (CDS) in a motor vehicle, reckless driving, driving while suspended 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.

Distribution Conviction Reversed For Detective's Improper Testimony

Brian Firman was charged with third-degree possession of cocaine (N.J.S.A. 2C:35-10(a)(1)); third-degree possession with intent to distribute (N.J.S.A. 2C:35-5(a)(1)) and 5(b)(3)); third-degree distribution (N.J.S.A. 2C:35-5(a) and 5(b)(3)); and third-degree distribution of cocaine within 1000 feet of a school zone (N.J.S.A. 2C:35-7). The charges stemmed from a detectives observation of the defendant and 2 other men in what he believed to be a hand to hand drug transaction which, when he approached to speak to them, was terminated abruptly and one of the men was observed to throw something on the ground which proved to be crack cocaine. During the pat-down search that followed, there paraphernalia was located on the persons of the other 2 co-defendants but nothing in the report reflected possession on the part of Firman. At trial, Firman was convicted by a jury and sentenced to 6 years in prison. In State v. Firman, the defendant appealed on the basis that the detective, McDonald, a non-expert, offered testimony exceeding the level permitted from a fact witness through his ample opinions. The defendant failed to object at trial, leaving the NJ Appellate Division to review the matter under the plain error standard of State v. Maloney, 216 N.J. 91 (2013). Under the plain error standard, the Appellate Division would reverse in the event that the testimony of McDonald which crossed the line into expert testimony, which he was not qualified to offer, could have led the jury to a different result than it would have reached without the inappropriate testimony. State v. Atwater, 400 N.J. Super. 319 (App. Div. 2008). The N.J. Appellate Division determined that without the impermissible testimony of the detective, the jury could have reached a different result and that the guilty verdict must be reversed with the matter remanded for a new trial. If you are facing charges for drug distribution or possession, there are multiple components which may affect the ultimate outcome. Drug distribution charges are met with harsh penalties due to the public interest in deterrence and it is critical that you obtain experienced criminal defense counsel to protect you against the charges and penalties. For more information regarding drug distribution, possession and possession with intent to distribute visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Self-Defense Applies In Manslaughter Case

Jacob R. Gentry was charged with murder (N.J.S.A. 2C:11-3a), aggravated manslaughter (N.J.S.A. 2C:11-4(a)) and reckless manslaughter (N.J.S.A. 2C:11-4b) after a fight with David Haulmark in which Gentry's girlfriend and brother are alleged to also have been involved. Gentry maintained the killing was in self-defense as, while fighting with Haulmark, he was pinned to the ground, being choked and fighting for his life. At trial, the prosecution cross-examined defendant about statements which his brother had made to police which were hearsay, inadmissible at defendant's trial and never entered into the trial by defendant and defendant's brother did not testify in defendant's trial. After the court failed to inform the jury that self-defense was not only a justification to murder but also to aggravated manslaughter, Gentry was convicted of first-degree aggravated manslaughter and third-degree endangering an injured victim (N.J.S.A. 2C:12-1.2) and sentenced, in the Superior Court of New Jersey, Law Division, Criminal Part, Sussex County by Judge N. Peter Conforti to 30 years in prison subject to an 85 percent parole disqualifier under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2). On Appeal in State v. Gentry, the NJ Appellate Division looked to State v. Rodriguez, 195 N.J. 165, 170 (2008) and State v. Kelly, 97 N.J. 178, 200 (1984), regarding the requirement of a jury charge regarding self-defense when the evidence, viewed most favorably to the defendant, supports the theory of self-defense. In Gentry, there was evidence presented that defendant and Haulmark worked together and were housed together for some time during which Gentry suffered repeated physical attacks and harassment at the hands of Haulmark and Haulmark's friends which were corroborated by independent witnesses including security from Legend's Resort wherein the workers were housed and other individuals who felt harassed by Haulmark. On the night in question, defendant claimed he feared for his life as Haulmark had him in a chokehold while on the ground and was biting him at the same time, all of which were supported by a physical examination of defendant's body following the event. Defendant admitted to kicking Haulmark, 80 pounds heavier than defendant, in the head after extracting himself from Haulmark's grip, out of fear that Haulmark would get back up and pursue him further. The defendant's testimony to police indicated that he had no idea Haulmark was seriously injured or dead until the police revealed the information. In Rodriguez, supra, 195 N.J. at 172, the NJ Supreme Court specifically held that one who kills in the belief that deadly force is required to spare his or her own life 'cannot be convicted of murder, aggravated manslaughter, or manslaughter.' N.J.S.A. 2C:3-4(a) also sets forth the circumstances in which deadly force becomes acceptable as a form of self-defense. Once self-defense is established by testimony, it is the burden of the prosecution to disprove that the defendant acted in self-defense. State v. O'Neil, 219 N.J. 298 (2004), sets forth the principle that after sufficient evidence exists to support a self-defense charge to the jury, failure to instruct the jury that self-defense is a complete justification for murder and manslaughter defenses constitutes plain error. With regard to the prosecutor's cross-examination with regard to the statement of the defendant's non-testifying brother to the police, the prohibition is plainly stated in State v. Haskell, 100 N.J. 469, 478 (1985), "the out-of-court statement of a co-defendant is inadmissible against another defendant because admission of the statement violates the rule prohibiting hearsay and the defendant's fundamental right to confront witnesses." In this case, the witness was available and the defendant was offered no opportunity to cross-examine him at trial which, under State v. Weaver, 219 N.J. 131, 151 (2014), could have rendered the statement admissible. Multiple questions and comments in summation by the prosecutor clearly gave rise to prejudicial error in violation of Gentry's rights under State v. Vandeweaghe, 177 N.J. 229 (2003); State v. Rucki, 367 N.J. Super. 200 (App. Div. 2004); and State v. Smith, 167 N.J. 158 (2001). Based on the cumulative errors at trial, the NJ Appellate Division reversed and remanded the matter. 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.

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.

Possession Conviction Reversed On Right To Remain Silent

Jamaal Shockley was indicted for third-degree possession of cocaine, a controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10(a)(1)); third-degree possession of cocaine, a CDS, with intent to distribute (N.J.S.A. 2C:35-5(a)(1)); and second-degree eluding police (N.J.S.A. 2C:29-2(b)) after he fled from police when they attempted to get him to stop while he was riding a dirt bike. Shockley fled and the pursuit continued until he fell off the motorcycle and was tackled by officers while attempting to run away. The defendant was patted down for weapons at the scene, his jacket was searched at the police department and his shoes and jacket were again checked prior to leaving the hospital after treatment. While being booked into the county jail, the defendant was again patted down before removing his clothes. Each of the prior searches was negative for weapons or contraband. After Shockley had removed his clothing as part of processing and was already lodged in jail, corrections officer Brooks again searched his clothing outside of his presence and discovered a bag containing 14 bags of cocaine within another small bag in the pocket of the defendant's sweatshirt. In State v. Shockley, the defendant was found guilty of possession of a CDS and eluding police. Shockley was sentenced to 8 years with 4 years of parole ineligibility for the eluding charge and a concurrent 6 year term with 3 years of parole ineligibility for the CDS charges. The defendant appealed on multiple grounds including that corrections officer Brooks testified regarding Shockley's silence when notified by Brooks that the cocaine had been discovered. Although the defendant did not object to Brooks' testimony at trial, reversal is required if it was clearly capable of producing an unjust result. State v. Taffaro, 195 N. J. 442 (2008). The Appellate Division looked to State v. Stas, 212 N.J. 37, 59 (2012) wherein the court considered the privilege against self-incrimination as set forth in N.J.S.A. 2A:84A-19 and N.J.R.E. 503. The court cited Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 2245, 49 L. Ed.2d 91, 98 (1976) with regard to the Fifth Amendment of the United States Constitution and the protection it offers both pre and post-arrest silence. In NJ, State v. Brown, 118 N.J. 595, 610 (1990) affords an accused the right to remain silent while "in custody or under interrogation." The NJ Appellate Division found the testimony to be plain error as it offered no probative value and was clearly in violation of Shockley's rights to remain silent and a fair trial. The matter was reversed and remanded for a new trial. A drug related conviction in NJ can have serious and lasting consequences including prison, loss of license, substantial fines and the stigma of the conviction or plea can result in the loss of certain employment or educational opportunities. If you are facing charges of use, possession or distribution of CDS, it is critical you consult with an experienced criminal defense attorney immediately to protect your rights. For more information about prescription or non-prescription drug charges for use possession or distribution, controlled dangerous substances in a motor vehicle, DUI and other criminal and serious municipal court matters visit HeatherDarlingLawyer.com. This blog is for informational purposes 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.