Man Charged With Aggravated Assault Was Deprived Of Right To Counsel

In State v. Kates, defendant Raymond Kates was charged with third-degree aggravated assault on a law enforcement officer (N.J.S.A. 2C:12-1b(5)(a)); third-degree resisting arrest by use of physical force or violence (N.J.S.A. 2C:29-2a(3)(a)); fourth-degree hindering prosecution by force (N.J.S.A. 2C:29-3b(2)); and fourth-degree inflicting harm to a law enforcement animal (N.J.S.A. 2C:29-3.1)) as well as various motor vehicle offenses following a 6 mile car chase. Defendant was represented by counsel but not the counsel of his choosing. On the opening day of trial, defendant's counsel advised the court counsel would be deployed overseas during the trial and objected to proceeding before allowing defendant opportunity to retain alternate counsel of his choosing. The trial court denied the request to adjourn without making adequate findings of fact regarding the request and Kates was convicted of eluding and resisting arrest. At sentencing Kates received an extended term as a persistent offender under N.J.S.A. 2C:44-3(a) as a result of prior indictable convictions including second-degree robbery, third-degree possession of controlled dangerous substances (CDS), second-degree sexual assault and endangering the welfare of a minor. On appeal the court looked to State v. Ferguson, 198 N.J. Super. 395 (App. Div. 1985) in making its determination. The Sixth Amendment entitles a defendant with private counsel to counsel of his choosing and does not require a showing of prejudice to defendant. In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) the United States Supreme Court decided that a defendant who does not need appointed counsel has the right to the counsel he or she believes to the be the best for his or her defense. However, the defendant's right is subject to a balancing test under the factors set forth in State v. Ferguson. Under Ferguson the court must consider the length of the requested delay; whether other continuances have been requested and granted; inconvenience to the litigants, witnesses, counsel and the court; and whether the requested delay is for legitimate reasons. The NJ Appellate Division determined the trial court's summary denial of an adjournment to retain private counsel without consideration of the Ferguson factors was a structural error which served to deprive the defendant of his right to counsel and required reversal. "Where the right to be assisted by counsel of one's choice is wrongly denied, therefore, it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants…" Gonzalez-Lopez, 548 U.S. at 148. If you attempted to avoid arrest because you believe you were wrongly accused, did not understand why you were being arrested or other similar reasons you can fight the charges against you. Due to the right of police to arrest citizens they believe to be involved in criminal activity, you should obtain experienced criminal defense counsel to assist you in your defense against these charges. For more information about eluding, assault on an officer, resisting arrest, hindering prosecution or other criminal charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

In A Murder Trial, Does Replacing A Juror Deprive Defendant Of A Fair Trial?

Michael Ross II was charged with first degree murder of 2 men (N.J.S.A. 2C:11-3(a)(1), (2)); second degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)); third degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(b)); and third degree hindering apprehension or prosecution (N.J.S.A. 2C:29-3(b)(1)). The matter was tried and the jury was sent for deliberations. After 6 full days of deliberations together, weighing the evidence presented at trial, the jurors sent out a note indicating they were deadlocked. Middlesex County Superior Court Judge James Mulvihill provided the jury with further instructions and ordered them to continue with deliberations. In roughly one hour's time, a juror indicated she was too ill to continue and the jurors were dismissed for the day. The following day, the juror again indicated she was too ill to participate and the judge spoke with her directly to verify that she was truly too ill to appear for further deliberations. Rather than waiting to see if the juror would be able to return, the judge replaced her. After four more days of deliberations, the jury returned guilty verdicts on all counts. Defendant appealed the matter of State v. Ross and the NJ Appellate Division reversed the conviction, determining the "jury had proceeded too far to expect the newly seated juror to be a full and equal participant in deliberations." In making their decision, the Appellate Division reconsidered State v. Banks, 395 N.J. Super. 205 (App.Div. 2007) and State v. Czachor, 82 N.J. 392 (1980) which addressed the replacement of jurors following deliberations and deadlock. The NJ Supreme Court took State v. Ross on the prosecution's appeal. The NJ Supreme Court justices addressed the proximity of the jurors notice of illness to the jury's indication of deadlock, the amount of time which elapsed from the substitution of the new juror to the arrival at the guilty verdicts and the extent to which the Judge went to ascertain the original juror's ability to appear in court for further deliberations. The defendant's attorney attempted to persuade the court that juror replacement should be barred following notice of a deadlock in order to protect the integrity of jury deliberations. No final decision has been reached in this matter but for those facing serious criminal charges and substantial deprivation of liberty, the result on future trials could prove substantial. For more information about murder, weapons possession, hindering or other serious criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.