Prosecutorial Discretion vs. Decriminilization of Marijuana

N.J. Attorney General Gurbir Grewal issued a directive permitting prosecutorial discretion in “minor” pot cases, but cautions against ideas of decriminalization. According to the Attorney General, prosecutors who find evidence lacking or special circumstances which would make sentencing too harsh have discretion to dismiss cases involving use or possession of small quantities of marijuana. Grewal has been meeting with civil rights groups, prosecutors, members of law enforcement, attorneys and multiple community organizations, presumably to determine what the best middle ground is to satisfy the outspoken. At the same time, the Legislature continues to move toward legalization of marijuana for recreational use. Not knowing when the Legislature will take action, the Attorney General determined that pending matters could not be stayed indefinitely. Grewal’s directive will yield to the decision of the Legislature once action is taken. As it stands, he has battled against prosecutors ceasing marijuana prosecution no matter the circumstances. The Attorney General does not support vesting individual prosecutors with Legislative powers but he does support prosecutorial discretion. Factors cited by Gurbir Grewal as requiring consideration in the decision of whether to prosecute or dismiss marijuana charges include the Defendant’s criminal record, impact on future employment and professional licensing, age, impact on immigration status, whether future educational opportunities would be impacted and adverse consequences with regard to the defendant’s family or public benefits including housing. The criteria set forth would permit discretion in nearly every matter. Following Grewal’s directive, the American Civil Liberties Union issued a statement calling for legalization based on the apparent limitations of the directive and likelihood for disparity. Drug Charges in NJ will have a serious impact on your life and can have significant implications in related matters. If you are charged with a drug crime in NJ you should seek an experienced attorney immediately to protect your rights. For more information on CDS in a motor vehicle, reckless driving or possession matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Denial Of Motion To Suppress Marijuana And Handgun Upheld

Kenneth L. Hawes was indicted for third-degree possession of marijuana with intent to distribute (N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(11)); second-degree possession of marijuana with intent to distribute within 500 feet of public property (N.J.S.A. 2C:35-7.1); second-degree possession of a firearm while in the course of committing a crime (N.J.S.A. 2C:35-5 and 2C:39-4.1(a)); second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)); and second-degree certain persons not to have weapons (N.J.S.A. 2C:39-7(b)). An anonymous caller informed Franklin Township police that a black male was selling what may be narcotics from an SUV in a parking lot. Upon investigating, officers in plain clothes saw the man, who had been brought to their attention previously, selling hats, CDS, DVDs and other merchandise from a GMC Envoy and, upon approaching, smelled a strong odor of raw marijuana emanating from Hawes and the SUV. Hawes moved away from the officers but was seized by the arm and subjected to a pat-down search by the officers for their personal safety in which a small pouch with marijuana was discovered on Hawes person and he was placed under arrest. Hawes then asked if he could return the merchandise to his vehicle before being removed and upon returning the merchandise to the vehicle for him, the officers discovered a handgun in partial plain view. Officer Hernandez removed the gun then proceeded to search the vehicle for other weapons, discovering an additional 70 bags of marijuana in the vehicle. At the suppression hearing, in State v. Hawes, the defendant testified that he never asked the officers to return anything to the vehicle and that the weapon was not in plain view. The motion judge found the defendant and his 4 witnesses to lack credibility and denied the motion to suppress. Following the denial of his suppression motion, Hawes entered a retraxit plea of guilty to both indictments in exchange for the State's recommendation of a maximum 10 year sentence with a 5 year period of parole ineligibility. The Somerset County Superior Court Judge sentenced Hawes according to the plea agreement but did not separately impose sentences on the charges. Hawes challenged the validity of the scope of the pat-down search, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), in which under claim of a protective search officers opened the coin pouch discovered in his pocket. Hawes further challenged the ensuing search of his vehicle, including discovery of the handgun and bags of marijuana, as fruit of the poisonous tree under Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417-18, 9 L. Ed. 2d 441, 454-56 (1963). The NJ Appellate Division followed State v. O'Neal, 190 N.J. 601 (2007); State v. Maryland, 167 N.J. 471 (2001); State v. Citarella, 154 N.J. 272 (1998); and State v. Pineiro, 181 N.J. 13 (2004) in properly placing the burden of proof on the State to prove the warrantless search and seizure was soundly within one of the well-delineated exceptions to the warrant requirement. The Appellate Court held that, based on the circumstances at the time of the search under State v. Pena-Flores, 198 N.J. 6 (2009), police had probable cause to arrest Hawes and, therefore, the search and seizure were valid under Chimel v. California, 395 U.S. 752 (1969); State v. Dangerfield, 171 N.J. 446 (2002); State v. McKenna, 228 N.J. Super. 468 (App. Div. 1988); and State v. Burnett, 42 N.J. 377 (1964). Further, the Appellate Division held that defendant's request to return the merchandise to his vehicle gave police opportunity to view the handgun, in plain view, in the defendant's vehicle which, once discovered, made it valid for the police to search the remainder of the vehicle for further weapons without first obtaining a warrant pursuant to U.S. v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1968). Although the denial of the suppression motion was upheld on appeal, the matter was remanded for re-sentencing due to the court's failure to impose individual sentences for each offense as required under State v. Rodriguez, 97 N.J. 263 (1984). 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 DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Legalizing Marijuana in NJ?

A bill, A-2842, legalizing possession of less than 50 grams of marijuana for any purpose is moving toward legalization in NJ at this time. Presently N.J.S.A. 2C:35-10 criminalizes the possession, use or being under the influence or failure to make lawful disposition of marijuana. N.J.S.A. 2C:35-10(a)(4) currently reads: "Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less a disorderly person." The penalty is up to one year in jail, a fine of up to $1000, or both. Assemblymen Michael Patrick Carroll, R- Morris, and Reed Guscoria, D-Mercer introduced this legislation after seeing the weight of the public sentiment moving toward legalization of marijuana use. The New Jersey State Municipal Prosecutors Association also supports the legalization of small amounts of marijuana for personal use as court dockets are overburdened with marijuana possession charges. Police personnel also find themselves spending copious amounts of time dealing with cases involving these small quantities of marijuana for personal use. Although the bill decriminalizes possession of small quantities as well as being under the influence, operation of a motor vehicle while under the influence would remain illegal. Although many are behind this referendum, there are opponents who believe it will be problematic. One person opposed to legalizing marijuana is Governor Chris Christie who has vowed that such changes to the law "will not happen on my watch ever." For the time being, possession, use or being under the influence of marijuana remains illegal in New Jersey. If you are charged with these or any other crimes under N.J.S.A. 2C:35-10, you can face serious consequences including imprisonment, loss of license, large fines and the stigma of a criminal charge on your record. You should seek experienced legal counsel immediately. For more information about use, possession or being under the influence of marijuana, CDS in a motor vehicle, DUI or other drug charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

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.

Drug Distribution Penalties Enhanced Under Controlled Substances Act

In order to be eligible for enhanced penalties under the Controlled Substances Act (U.S.C. Section 841(b)(1)(C)), the use of the drug distributed must independently cause the victim's death or seriously bodily injury. In the case of Burrage v. United States, a long-time drug user in poor physical condition died after using heroin purchased from the defendant. On April 14, 2010, Banka began smoking marijuana with a friend and he later crushed and injected oxycodone pills. His wife then purchased heroin for him from Burrage which he used on at least 2 occasions that same night. In the morning of April 15, Banka's wife woke to find him dead. Responding police found heroin, oxycodone, hydrocodone, alprazolam, clonazepam and syringes in the residence. At trial, testimony was presented by medical experts indicating the presence of codiene, alprazolam, clonazepam, oxycodone and herion in Banka's system at the time of death. The experts could not conclusively say Banka would have lived had he not injected the heroin, only that it was a "contributing factor" making the death more likely. The jury convicted Burrage after the judge instructed them that the government need prove only that the heroin contributed to the death. He was sentenced to 20 years in prison under the Controlled Substances Act and the Appellate Court upheld the decision. Burrage appealed to the United States Supreme Court. The Controlled Substances Act includes a "death results" enhanced penalty which subjects drug dealers to increased sentences when someone dies as a result of using drugs the dealer sold them. The US Supreme Court held that drug use as a contributing factor to death was not sufficient to impose the enhanced penalty. The US Supreme Court found that "results from" was not defined in the Act but found it to require proof that "the harm would not have occurred in the absence of…the defendant's conduct." University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___________, 133 S. Ct. 2517 (2013). The Government argued that applying the ordinary meaning to "results from" would protect criminals from liability for their acts. The Supreme Court found this argument to lack merit on the grounds that, even without proof of but-for causation, criminals remain subject to the remaining provisions of U.S.C. Section 841. If you are facing charges for drug distribution, there are multiple components which may affect the ultimate outcome. Although there is often no way to obtain an acquittal in such cases, there is often great disparity in sentencing depending on the interpretation of statutes and factors applied and weighed at the time of sentencing. 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 HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Judge Acts As Judge, Jury and Prosecutor in Theft Case

Linden Municipal Court Judge DiLeo denied the requests of Anthony and Wendell Kirkland for appointed public defenders in their theft case and then conducted the trial without a prosecutor present. The judge went so far as to take on the prosecutor's role by undertaking direct examination of the police officers, thereby eliciting the information he felt should be heard, and cross-examining the defendants. The Kirklands were charged with attempting to steal tires from a vehicle. Initially, they sought private counsel then later requested public defenders. The judge found the defendants to have waived their right to counsel. At the trial, the judge invited the Kirklands to participate in cross-examination of the police officers testifying and also to present testimony on their own behalf. The Kirklands presented no testimony or witnesses yet the judge allowed the officers to cross-examine the Kirklands. At the close of this farce, DiLeo found the defendants guilty of theft of moveable property, possession of burglary tools and possession of under 50 grams of marijuana and sentenced them to county jail terms. By the time NJ Superior Court Judge Scott Moynihan heard the Kirklands' appeal, resulting in dismissal of the drug charges and remand to the municipal court for a hearing on the remaining theft charges, the Kirklands had spent 124 days in the Union County jail. This case resulted in a new standard for imposition of punishment on judges for misconduct on the bench. When a reasonable person would find the conduct of the judge to be obviously and seriously wrong, contrary to clearly determined law without question as to interpretation, egregious and made in bad faith or as part of a pattern of error. If you have been accused of a crime, you cannot rely on the legal system to protect your rights. Although the system is designed, on its face, to protect the interests of both the state and the accused, the prosecutors, judges and police officers involved in your case are human and fallible. For more information about theft, burglary, possession of controlled dangerous substances (CDS) or other criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Distribution of Drugs in a School-Zone May Not Bar Drug Court

In a recent case involving 3rd degree distribution of a controlled dangerous substance (CDS), marijuana, in a school zone a defendant was denied admission into the Drug Court program and appealed. Mike Pope appealed the decision of the Sussex County Superior Court Judge based on the misapplication of the standard for ordinary probation to deny him entry into Drug Court, based on a school-zone offense, while N.J.S.A. 2C:35-14 allows school-zone offenders to be sentenced to Drug Court probation. The statute permitting entry into Drug Court applies as long as the transaction occurring within the school-zone does not involve distribution to a minor. Mark Pope pled guilty to distribution in the parking lot of Vernon High School under a negotiated settlement agreement which contemplated defendant's intent to apply to Drug Court. The Sussex County prosecutor argued that Pope's violation of N.J.S.A. 2C:35-7, involving distribution within 1000 feet of a school-zone, served as an automatic bar to defendant's entry into Drug Court. Defendant's appeal, in State v. Pope, asked the NJ Appellate Division to reconsider Pope's application to Drug Court based on the requirements of track 1 or 2 for admission. Track 1 being the commission of a crime subject to a presumption of mandatory incarceration and the satisfaction of 9 factors. Typically this is reserved for 1st or 2nd degree crimes and is done with the consent of the prosecutor. Track 2 is typically applied to those with ongoing drug habits who have not committed any form of violent offense. The NJ Appellate Judges held that the trial court misapplied the statute and remanded the matter for consideration under the appropriate criteria. 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 including marijuana, meth, oxy, heroin, xanax or other drugs, 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, gang-related drug charges, 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.