Juvenile's Excited Utterance Admissible Under Hearsay Exception

State of New Jersey In the Interest of A.R. involved a 14 year old juvenile found guilty of touching a 7 year old child, J.C., sexually on a school bus, a crime that would constitute second-degree sexual assault (N.J.S.A. 2C:14-2(b)) if committed by an adult. J.C. was diagnosed with autism and ADHD. Upon exiting the bus, which was returning the children from summer camp, J.C. exclaimed that A.R. had touched him. There were 20 children on the bus and no witnesses to the alleged act. J.C. repeated his statement to a detective days later. The trial judge from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County court found that the exclamation upon exiting the bus and statements during the detective's interview were admissible under the "tender years" exception to the hearsay rule (N.J.R.E. 803(c)(27)). At the bench trial in the, the court found J.C. incompetent to understand the proceedings and offer testimony but did accept J.C.'s testimony based on N.J.R.E. 803(c)(27). On appeal, the N.J. Appellate Division determined that the statements to the detective were testimonial in nature, under Crawford v. Washington, 541 U.S. 36 (2004), and A.R.'s counsel was not able to protect the confrontational rights of the 14 year old through cross-examination due to the incompetence of J.C. The Appellate Division held that the exclamation upon exiting the bus was not testimonial in nature and remanded for reconsideration. If a juvenile is charged with a crime, the disposition of the charges can change his or her future by prohibiting them from entering certain schools, fields of employment and, in the case of Megan's Law offenses, certain residences or neighborhoods. It is critical for any juvenile charged with a criminal offense to seek an experienced juvenile defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, sex-offenses, Megan's Law provisions or other criminal charges in NJ, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

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.

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.

Oral Argument Is Favored in Post-Conviction Relief Petitions

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