Murder Conviction Reversed For Lack of Passion Provocation Consideration

Fernando Carrero was charged with the first-degree murder (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 possession of a handgun without the requisite permit (N.J.S.A. 2C:39-5(b)); and third-degree hindering apprehension (N.J.S.A. 2C:29-3(b)(1)). Pretrial hearings led to the admission of the revolver used to murder the victim, Jason Hall; evidence that the Defendant had been abusive and controlling toward his girlfriend; statements by the Defendant to the police; and a statement by the victim to a third party. Carrero was convicted by a jury of all counts and sentenced to life in prison. At trial, testimony was presented indicating the Defendant and Lowenstein were involved in a romantic relationship wherein he became controlling, jealous and paranoid. At one point, after he repeatedy struck her for “lying” when he questioned her about her friends Jason Hall and Hicks, Lowenstein provided Carrero with the answer he wanted which was that Hall had set Carrero up. Hall and Carrero were alone together some time later at Lowenstein’s family residence and Hall began to provoke the Defendant after entering the kitchen to find Carerro and Lowenstein kissing with her hands around Carerro’s waist. Lowenstein left the room to locate her parents and heard a gunshot. She returned to the room to find Hall on the floor and Carrero pointing a gun at Hall. In spite of Lowenstein’s pleas and physical efforts to prevent harm to Hall, Carrero shot Hall in the head. The Defendant’s account was that, after Lowenstein left the room, Hall threatened him and pulled the gun from his waistband. Carrero testified that the original gunshot occurred during the struggle wherein Carrero wrestled the gun from Hall’s hand. Carrero further testified that he did not intend to shoot Hall and never had his finger on the trigger but the gun accidentally went off when Lowenstein attempted to physically prevent him from shooting Hall. Hicks was in the basement below during the incident and claimed to have heard yelling and “thumping” noises and arrived upstairs to see Carrero flee with a gun in his hand. Newark Police later located the Defendant with the murder weapon. Carrero challenged on multiple grounds including the denial of his request for a passion/provocation manslaughter (N.J.S.A. 2C:11-4(b)(2)) charge to the jury; the admission of hearsay; the gravity of his sentence and the admission of prior-bad-acts he was involved in. The N.J. Appellate Division found that a fair trial requires proper jury charges pursuant to State v. Daniels, 224 N.J. 168 (2016), and that if there is evidence supporting the possibility that a jury could reasonably acquit the Defendant of the original charges but find the Defendant guilty of the lesser included charge then a plenary review of the reason for the denial of the lesser included charge is required under State v. Brent, 137 N.J. 107 (1994). Even when a lesser included charge is inconsistent with the defense’s theory of the case it should be offered as an option for the jury if the evidence at trial supports it. State v. Castagna, 376 N.J. Super. 323, 356 (App. Div. 2005); State v. Mauricio, 117 N.J. 402 (1990); State v. Taylor; 350 N.J. Super. 20 (App. Div. 2002). In the case of State v. Carrero, a passion/provocation manslaughter charge, defined under N.J.S.A. 2C:11-4(b)(2) as a homicide which is committed in the heat of passion with reasonable provocation, should have been offered for the jury’s consideration. The four elements required to establish passion/provocation murder are adequate provocation; the provocation and the actions of Defendant had to occur proximately; the Defendant had to actually become impassioned by the provocation of the victim; and the Defendant must not have calmed down prior to acting against the victim. Mauricio, supra, 117 N.J. at 411. Although a passion/provocation charge is inconsistent with the Defendant’s self-defense theory, it is nonetheless an appropriate jury charge under the evidence presented, including that Hall was trying to provoke Carrero immediately before Hall was shot. The N.J. Appellate Division found that the trial court was incorrect in finding that a passion/provocation charge should not be presented because inconsistencies in the charges presented could confuse the jurors. Further, the Appellate panel found there was a rational basis to support the passion/provocation charge as there was evidence presented of threats, a struggle, Lowenstein’s testimony that her hands were around Carrerro’s waist immediately prior to the incident, and the Defendant’s testimony that Hall was the one who had the gun initially. Based on their findings, the Appellate panel reversed and remanded the matter for a new trial rendering the Defendant’s other points on appeal moot. If you are facing murder charges 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.

Attempted Murder Reduced To Aggravated Assault For Plea

Richard Spellman was indicted on two counts of attempted murder (N.J.S.A. 2C:5-1 and 2C:11-3); two counts of first-degree robbery (N.J.S.A. 2C:15-1); two counts of second-degree possession of a weapon (N.J.S.A. 2C:39-4a); two counts of third-degree unlawful possession of a firearm (N.J.S.A. 2C:39-5b); and second-degree certain persons not to have weapons (N.J.S.A. 2C:39-7). Spellman confessed and his motion to suppress the confession was denied. He ultimately pled guilty, in the Superior Court of New Jersey, Law Division, Somerset County, to all charges after the first-degree attempted murder charges were amended to second degree aggravated assault (N.J.S.A. 2C:12-1b(1)). Spellman was sentenced to concurrent 17 year terms subject to an 85 percent period of parole disqualification under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2); two 10 year terms and two 5 year terms; and restitution to a victim with a 5 year period of parole supervision to follow his release. The charges stemmed from two incidents. First, while on parole for a prior aggravated assault, Spellman entered a convenience store, demanded money and then shot the clerk in the stomach after he was given the money. In the second incident, Spellman shot a man in the parking lot of a restaurant. Upon arrival at the scene, police found a gun in the parking lot and Spellman staring at them out the window of a nearby store. When officers spoke to Spellman, he indicated he was fighting with the man he shot. Officers searched Spellman and found a bullet on his person. At the police station, officers found another bullet on Spellman's person and, prior to questioning of any kind, Spellman said "I shot the attendant at the [convenience store]." Spellman was read his Miranda rights, waived his right to counsel and quickly confessed to shooting both individuals. In State v. Spellman, the NJ Appellate Division upheld the trial court judge's decision that the defendant's confessions were voluntary in spite of the defendant's challenge to the voluntariness based on mental capacity which was not raised at trial and therefore not preserved for appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229 (1973). The NJ Appellate Division looked to State v. Smith, 307 N.J. Super. 1 (App. Div. 1997), in holding that mental illness itself, if present, does not invalidate a confession. The record below satisfied the Appellate Division that the trial judge fully reviewed the confession and found no coercion or force to have been used. With regard to sentencing, the NJ Appellate Division did find errors with the trial judge's failure to properly weigh the aggravating and mitigating sentencing factors of N.J.S.A. 2C:44-1 and explain his or her reasoning fully on the record. State v. Fuentes, 217 N.J. 57 (2014). The Appellate Division determined that he trial judge's imposition of concurrent 17 year sentences exceeded the statutory range of 5 to 10 years set forth in N.J.S.A. 2C:43-6a(2). Finally, the Appellate Division and the State agreed that the trial judge failed to make adequate findings, pursuant to N.J.S.A. 2C:44-2b(2), as to whether the defendant was able to pay the restitution ordered. The matter was remanded for resentencing. 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.

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.

Murder Confession Admissible Under Miranda

Jerome L. Faucette was charged with first-degree felony murder (N.J.S.A. 2C:11-3(a)(3)) and robbery (N.J.S.A. 2C:15-1) after driving a vehicle for Terrence S. Clemmons during Clemmons robbery and shooting of a gas station attendant. Faucette was convicted of first-degree robbery and sentenced to 13 years in prison with an 85% parole disqualifier under the No Early Release Act (N.E.R.A.)(N.J.S.A. 2C:43-7.2. Faucette appealed claiming his statement was not made voluntarily on the grounds that he had invoked his right to counsel. On May 14, 2008, at 7:00 pm, police requested defendant accompany them to the police station for questioning with which he complied. Faucette was read his rights under Miranda v. Arizona, U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) at the police station and spoke with police until approximately 8:00 pm when he asked to leave, however, the police continued questioning Faucette until 2:30 am. Faucette did not invoke his right to counsel. On May 15, 2008, police returned to the defendant's residence at 4:00 pm to return him to the police station where he was again advised of his Miranda rights and arrested. Detectives questioned Ms. Spencer and Mr. Gaddy, Faucette's former girlfriend and friend. Both of these individuals advised police that Faucette had admitted to participating in the robbery planned by the co-defendant, Clemons. Faucette ultimately admitted to participation in the robbery as a driver but denied involvement in the murder or prior knowledge thereof. In State v. Faucette, the judge held that the initial interview, wherein no confession was obtained, violated the defendant's rights under Miranda following the defendant's request to terminate the interview, however, the second interview was not in violation of defendant's rights and the confession provided therein was voluntary. The court granted suppression of all information obtained after 8:03 p.m. during the initial interview but found all remaining statements to be admissible. On appeal, the defendant challenged the voluntariness of his confession based on coercion and violation of his rights under Miranda. The NJ Appellate Division turned to State v. W.B., 205 N.J. 588 (2011) with regard to Miranda requirements when there is a challenge to voluntariness of a confession. Pursuant to State v. Johnson, 42 N.J. 146, 162 (1964), reiterated in State v. Davila, 203 N.J. 97, 109-10 (2010), as long as the findings of the trial judge are detailed and supported by factual and credible evidence the findings below are not to be disturbed. However, the deference accorded in Johnson and Davila are dependent upon the trial court's ability to hear testimony from officers, experts and witnesses and not the mere review of a videotaped confession from which the Appellate Division can also draw independent conclusions. State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2011). The Fifth Amendment grants privilege against self-incrimination and this right is afforded to the states through the Fourteenth Amendment. The Appellate Division looked to State v. Reed, 133 N.J. 237 (1993), with regard to a defendant's right against self-incrimination in New Jersey and to State v. Knight, 183 N.J. 449 (2005) with regard to the upholding of that right through Miranda protections. State v. Galloway, 133 N.J. 631 (1993) was the case looked to by the Appellate Division in determining whether the State or defendant bears the burden of proving voluntariness of a confession and found the burden is borne by the State. State v. Presha, 163 N.J. 304, 313 (2000), dictates that a the "voluntary intelligent statement" of a defendant properly notified of his rights under Miranda is a valid and admissible confession. After reviewing the circumstances in this specific matter, the Appellate Division found that Faucette's second confession was knowingly and voluntarily given with full information and understanding of Miranda warnings and that there was no "taint from the May 14 Miranda violations" in violation of State v. O'Neil, 193 N.J. 148, (2007) or State v. Johnson, 118 N.J. 639 (1990). Further, the Appellate Division affirmed that Faucette did not, at any time during the questioning, invoke his right to counsel. The NJ Appellate Division found Faucette's confession to be voluntary and affirmed the decision of the trial court. 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, robbery, conspiracy, 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.

Manslaughter, Not Self-Defense, For Killing An Unintended Victim

For the murder of Lavern Ritch, Robert Davies was charged by a grand jury with murder (N.J.S.A. 2C:11-3(a)-(b)); aggravated manslaughter (N.J.S.A. 2C:11-4(a)(1)); passion/provocation manslaughter (N.J.S.A. 2C:11-4(b)(2)); second-degree reckless manslaughter (N.J.S.A. 2C:11-4(b)(1)); third-degree possession of a weapon with an unlawful purpose (N.J.S.A. 2C:39-4(d)); fourth-degree possession of a weapon by a convicted person (N.J.S.A. 2C:39-7(a)); and possessing a knife under circumstances not manifestly appropriate for its use (N.J.S.A. 2C:39-5(d)). At the close of a trial, Davies was found guilty of second-degree reckless manslaughter, third-degree possession of a weapon with an unlawful purpose, and fourth-degree possession of a weapon by a convicted person. Prior to sentencing, Davies motions for a judgment of acquittal and a new trial were denied by the court. The defendant was sentenced to 20 years in prison subject to a mandatory extended term for manslaughter pursuant to N.J.S.A. 2C:43-6.4(e), a discretionary extended term under the persistent offender statute, N.J.S.A. 2C:44-3(a) and a period of parole ineligibility under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2) but offered no clarification of the actual basis for the extended term. Additionally, the sentenced set forth on the record differs from that in the Judgment of Conviction as to whether sentences for the weapons convictions would run consecutive or concurrent to the manslaughter sentence. At trial, in State v. Davies, the defendant represented himself pro se for some time prior to requesting that stand-by counsel assume representation on his behalf. Testimony at trial indicated that Davies had just been punched by Chavez following the exchange of words the restroom of a bar shortly prior to the attack and was chasing Chavez when Ritch, running behind him along with other companions of Chavez touched the defendant on the shoulder from behind at which time the defendant turned around and stabbed Ritch. The defendant claimed to have stabbed Ritch thinking he was defending himself against another attack from Chavez’ companions. Witnesses testified that, when defendant spun around toward Ritch, Ritch put his hands up and stated he was trying to help Davies although some testimony differed from testimony offered to police previously. Witnesses testified to seeing Davies strike Ritch, although no knife was visible, and then seeing Davies immediately resume pursuit of Chavez. Witnesses immediately went to Ritch who was bleeding from his side and said he had been stabbed. His death ultimately resulted from a stab wound to the heart. Davies appealed seeking a new trial due to multiple alleged errors relating to the trial. With regard to the defendant's theory of self-defense, N.J.S.A. 2C:3-4 requires the need to protect oneself from death or serious bodily harm in order to justify the use of deadly force within certain confined areas. The events in the within matter occurred in a public area and did not give rise to a claim of self-defense in the opinion of the NJ Appellate Division. Additionally, under N.J.S.A. 2C:3-3 to 2C:3-8, even if Davies had been justified in using deadly force against Chavez, the Appellate Division determined the reckless and negligent use of deadly force against Ritche was unjustifiable. As such, the trial court did not err in failing to provide the jury with instructions regarding Davies self-defense claims. After ample consideration of Davies other multiple challenges to jury instructions and court procedures, the Appellate Division found there were no errors requiring a reversal of the conviction. The Appellate Division did find that, pursuant to State v. Diaz, 144 N.J. 628 (1996), merger is required of the offenses although the victim was ultimately an unintended victim. The matter was remand the matter for re-sentencing including the requirement that the trial court set forth fully its consideration under the factors of State v. Yarbough, 100 N.J. 627, 643-44 (1985) and the basis for any extended term pursuant to State v. Robinson, 217 N.J. 594, 610 (2014) and State v. Pierce, 188 N.J. 155, 170 (2006). Additionally, the trial court is directed to sentence Davies in consideration of his present lifestyle and conditions as opposed to how circumstances presented him on the date of the original sentencing pursuant to State v. Randolph, 210 N.J. 330 (2012). 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 HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Juvenile Seeks To Withdraw Manslaughter And Carjacking Pleas

Demitrius Minor, a juvenile offender, was charged with first-degree felony murder (N.J.S.A. 2C:11-3(a)(3)) and first-degree carjacking (N.J.S.A. 2C:15-2(a)(1)-(3))for crimes occurring on different dates and involving different victims in each circumstance. Although only sixteen (16) years of age at the time, Minor waived jurisdiction in the Chancery Division, Family Part and entered a guilty plea to first-degree aggravated manslaughter (N.J.S.A. 2C:11-4(a)(3)) and first-degree carjacking in the Law Division, Criminal Part. The plea agreement called for a thirty (30) year prison term for aggravated manslaughter and a concurrent ten (10) year term for the carjacking charge. Defendant was also subject to a parole disqualifier under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2) with regard to the aggravated manslaughter charge. At sentencing, approximately three (3) months after giving a lengthy and detailed factual basis for the guilty plea previously entered, Minor sought to withdraw his plea of guilty based on an ineffective assistance of counsel claim but the trial judge refused to allow Minor to obtain substitute counsel and sentenced him according to the plea agreement as no formal motion had been filed. In State v Minor, the defendant appealed claiming that the trial judge committed reversible error. The NJ Appellate Division determined that an application for withdrawal of a guilty plea would require application of the factors set forth in State v. Slater, 198 N.J. 145 (2009) which could not reasonably be expected of a defendant without the assistance of counsel. It was apparent on its face to the Appellate Division that, under Hayes, 205 N.J. 522 (2011), it was reversible error to deny Minor’s request for an adjournment. It is long-established that denial of adjournment may lead to reversal when the defendant suffers “manifest wrong or injury” as a result of said denial. State v. Doro, 103 N.J.L. 88, 93 (E. & A. 1926). The court cited Hayes, supra, 205 N.J. at 541-42, with regard to the need to remand for the limited purpose of a plea withdrawal hearing wherein the defendant shall represented by independent counsel. If you are a juvenile charged with acts that if committed by an adult would constitute serious crimes, you need experienced criminal defense counsel to assist you immediately. An experienced criminal defense attorney can guide you through the court proceedings including whether your matter is best resolved in the Family Court or Law Division and what your options are in either event. For more information about murder, juvenile offenses or other serious crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Murder Conviction Reversed On Prejudicial Hearsay

Stephen Scharf was convicted of first-degree purposeful and knowing murder (N.J.S.A. 2C:11-3(a)(1) and (2)) for the murder of his wife, Jody Scharf. Stephen and Jody Scharf were together at the top of the Englewood Cliffs in Bergen County. The defendant contacted the police indicating Jody Scharf must have slipped from Rockefeller Lookout atop the cliffs when he returned to their vehicle to obtain a blanket. The body of Jody Scharf was later located at the bottom of the cliffs, a distance of 52 feet from the base horizontally. The defendant was interviewed by police and the parties' son corroborated his story but also added that the night prior to Jody Scharf's death, he had accompanied them to a late dinner as his mother did not wish to be alone with his father upon whom she had recently served divorce papers claiming abuse and adultery. Both of the parties' sons also provided details of their mother's fear of heights with regard to the notion of her interest in going to the edge of the cliffs. In addition to the fact that Jody Scharf had filed for divorce, the defendant stood to receive $500,000 in life insurance proceeds from her death. In State v. Scharf, pre-trial motions to suppress hearsay testimony from Jody Scharf's counselor and friends were denied based on the judge's reliance on State v. Benedetto, 120 N.J. 250 (1990) and N.J.R.E. 803(c)(3) and the jury was permitted to hear statements about the likelihood defendant murdered Jody Scharf or that she had been afraid of him. The prosecution and defense offered conflicting testimony as to how the body ended up 52 feet from the base of the cliffs. Two of defendant's paramours contradicted Sharf's claims to police that he and Jody Scharf were attempting to reconcile and had terminated relationships with them. Defendant appealed the guilty verdict in the Superior Court of New Jersey, Law Division, Bergen County and the sentence of life in prison with a 30-year parole ineligibility period. The NJ Appellate Division considered defendant's challenge to the hearsay evidence admitted below under N.J.R.E. 401 with regard to the weight of prejudice against the weight of probative value and N.J.R.E. 801(c) pertaining directly to hearsay defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The Appellate Division referenced State v. Calleia, 206 N.J. 274 (2011) wherein the court considered statements of fear which had the danger of creating an inference of violence as an ongoing part of the relationship between the victim and defendant against the introduction of statements to establish the defendant's motive to commit the crime. Ultimately, motive evidence was held to be admissible as a "material issue in a case." Id. at 293-294, provided that the danger of prejudice by the statement offered does not outweigh the probative value. In this balancing, it is the burden of the party seeking exclusion of the statement to establish that it is more likely to be prejudicial than probative. State v. Morton, 155 N.J. 383,453 (1998). Pursuant to Calleia, the State must then show that the accused was most likely aware of the decedent's statement. The NJ Appellate Division determined the statements offered were "neither relevant nor material" and that they were "highly prejudicial and clearly cumulative." The court held that the victims fear of defendant did not make it any more or less likely that she slipped and fell off the cliff to which she voluntarily accompanied the defendant, especially in light of the fact that the autopsy did reveal that she was clearly under the influence of alcohol while on the edge of the cliff. Ultimately, the NJ Appellate Division determined that the defendant had quite possibly been deprived of a fair trial and reversed and remanded the matter for a retrial. 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 HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Attempted Murder Suspect Entitled To Fair Trial

Geraldo Rivera was charged with the attempted murder (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1)) of Sean and Michael Burns during a bar fight over Sean Burns' failure to tip the barmaid, Rivera's fiancée'. Sean Burns was left with four stab wounds to the torso and Michael Burns' was cut severely exposing his intestines. Rivera, who claimed self-defense, also suffered head wounds. Multiple witness accounts diverged considerably leaving the jury to decide which version was most plausible. At trial, the prosecutor utilized various methods, including PowerPoint to present the State's case. Rivera was ultimately convicted of second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)) on Sean Burns and fourth-degree aggravated assault (N.J.S.A. 2C:12-1(b)(3)) on Michael Burns. Rivera was sentenced to eight years in prison with a period of parole ineligibility under the No Early Release Act (N.E.R.A.)(N.J.S.A. 2C:43-7.2). On Appeal in State v. Rivera, Rivera challenged the conviction based upon the State's unfair trial tactics depriving him of the right to a fair trial. The NJ Appellate Division determined that the prosecutor's display of Rivera's picture on a slide with the word guilty on it and other overly suggestive acts including climbing into the jury box at one point while Rivera was seated at the prosecutor's table to operate a projector as if to indicate fear of the defendant deprived Rivera of a fair trial. 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 HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Venue Change After Death Threats And Murder Conspiracy

Aakash Dalal was charged with multiple crimes including criminal mischief (N.J.S.A. 2C:17-3(a)(1)) for spray painting anti-Semitic graffiti on a synagogue in Hackensack, NJ; first-degree aggravated arson (N.J.S.A. 2C:17-1(a)) associated with a synagogue in Rutherford, NJ; first-degree bias intimidation (N.J.S.A. 2C:16-1(a)); and first degree conspiracy to commit aggravated arson (N.J.S.A. 2C:5-2(a)(2) and N.J.S.A. 2C:17-1(a)) as well as similar matters within the same region occurring during a limited timeframe. Once the matter began proceeding through the courts, Dalal was also charged with first-degree conspiracy to murder a Bergen County Assistant Prosecutor (N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:11-3); third-degree conspiracy to possess a firearm for an unlawful purpose (N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:39-4) and third-degree terroristic threats (N.J.S.A. 2C:12-3(b)). Dalal was indicted for many of the charged counts as well as first-degree terrorism (N.J.S.A. 2C:38-2(b)(1)) and second-degree terrorism (N.J.S.A. 2C:38-4). Prior to trial, Dalal sought transfer of the case to another judge without objection by the State as the prosecution intended to introduce evidence that Dalal intended to target Presiding Criminal Part Judge Liliana DeAvila-Dilebi and Judge Partick Roma. Dalal also sought change of venue without success and brought an interlocutory appeal. Given the facts of the case, the NJ Appellate Division judges hearing the matter determined that, despite their own confidence in the judiciary, a reasonable person in Dalal’s situation could have substantial doubt as to their potential for obtaining a fair trial in the Bergen County Superior Court. The appellate judges quoted Chief Justice Rabner’s opinion in DeNike v. Cupo, 196 N.J. 502, 506 (2008): “[t]he Judiciary derives its authority from the State Constitution but earns the public’s confidence through acts of unquestioned integrity.” The matter was reversed with directions that the matter be heard by a judge from outside the vicinage. If you are facing criminal charges, it is imperative that you insure your rights are upheld and you have the best chance possible at a fair trial. For more information about 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.

Murder Conviction Upheld After Graphic Photos Were Shown To Jury

Darwin Rodriguez-Ferreira was convicted of knowing and purposeful murder (N.J.S.A. 2C:11-3a(1) and (2)); fourth-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5d); and third-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4d). At sentencing the defendant received a thirty year prison sentence including a thirty year parole disqualifier and consecutive eighteen month sentence for unlawful possession of a weapon. Kendall was found lying in the street near his Jersey City home with multiple stab wounds. Multiple calls to and from "Darwin" were found in Kendall's cell phone log and a bloody knife wrapped in boxer shorts was found nearby shortly thereafter. The blood contained Kendall's DNA and the boxer shorts contained Darwin's DNA. The defendant left the country with a one-way ticket the day after the murder and police found bloodstains with Kendall's DNA on Darwin's floor while searching Darwin's residence. In State v. Rodriguez-Ferreira, the defendant appealed the convictions and sentence received in the Superior Court of New Jersey, Law Division, Hudson County. At trial, over Darwin's objection, four graphic photos of Kendall's body depicting stab wounds to the neck and face, torso and forearm were presented to the jury. One photo, taken during the autopsy included stab wounds suffered by internal organs extracted from the body during the autopsy. N.J. Rule of Evidence 403 permits the inclusion of evidence if the probative value substantially outweighs the risk of prejudice to the jury through its revelation. In State v. Johnson, 120 N.J. 263 (1990), the NJ Supreme Court held that vivid and graphic details which may be difficult to look at do not necessarily call for exclusion of photographic evidence. State v. Sanchez, 244 N.J. Super. 231, 249-51 (App. Div. 1988) allows admission of murder victim photographs to prove the act was "purposeful and knowing." N.J. Appellate Division affirmed the trial court's decision to admit the photos. With regard to the sentence imposed, the trial court failed to consider the relevant factors under State v. Yarbough, 100 N.J. 627 (1985) and the matter was remanded by the Appellate Division for sentencing including an articulation of the how the Yarbough Factors apply to require a consecutive sentence for unlawful possession of a weapon. If you are facing murder charges, it is the state's burden to prove your guilt and they must do so in a just and appropriate manner, without the admission of unduly prejudicial evidence or testimony. It is critical you obtain experienced criminal defense counsel to ensure your rights are protected against prejudicial acts by the prosecution or the judge. For more information regarding homicide, assault, weapons charges or other serious criminal issues in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Murder Pled To Aggravated Manslaughter Leads To PCR Appplication

Lynn Giovanni was charged with first-degree purposeful and or knowing murder (N.J.S.A. 2C:11-3(a)(1), 3(a)(2)); third-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(d)); and fourth-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(d)). She pled to aggravated manslaughter (N.J.S.A. 2C:11-4) as a lesser included offense of knowing or purposeful murder (N.J.S.A. 2C:11-3(a)(1), -(a)(2)) and was sentenced to 30 years in prison with an eighty-five percent parole ineligibility period under the No Early Release Act (NERA)(N.J.S.A. 2C:43-7.2). Giovanni bludgeoned her 14 year old daughter to death while she slept. At the time, Giovanni was being treated for depression and post-traumatic stress disorder and her daughter was having behavioral and adjustment problems after her parents' divorce and was being treated for depression. After killing her daughter, the defendant took multiple prescriptions in an effort to commit suicide but was unsuccessful. She then left the residence and repeatedly drove her vehicle into a guardrail trying to kill herself. During pre-trial psychological examinations of the defendant by defense experts she indicated that her actions were designed only to help her daughter end her pain and ultimately be with her through suicide and indicated that she had planned the killing for about a month. The State, under State v. Whitlow, 45 N.J. 3 (1965),conducted psychological examinations of the defendant which found her to be capable of understanding her actions at the time of the killing and that her actions were deliberate. After considering all evidence the parties came to terms on a plea agreement to first-degree murder but with the prosecutor recommending a sentence for aggravated manslaughter. At sentencing, in State v. Giovanni, the court reviewed the plea fully and the defendant participated in the conversation, providing replies when called for. Although the defendant filed no direct appeal, the defendant sought post-conviction relief (PCR) claiming that her sentence violated Briggs as her factual basis was not appropriate to aggravated manslaughter and mental issues interfered with her ability to understand the plea or sentence. She also claimed, during the PCR hearing, that her counsel advised her not to speak at sentencing. Defendant's counsel denied any such assertion. She further referenced plea offers which never existed in reality and the fact that her counsel did not adequately pursue insanity and diminished capacity defenses. Defendant next appealed the denial of her petition for post-conviction relief and the denial was upheld on all counts but remanded for reconsideration of her application to withdraw her plea in light of the lower court's misapplication of the factors set forth in State v. Slater, 198 N.J. 145 (2009). Slater sets forth the standard for review of ineffective assistance of counsel claims as requiring the showing that "(1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance; and (2) that counsel's performance created a reasonable probability that, but for counsel's unprofessional efforts, the result of the proceeding would have been different." With regard to Slater factor one in particular, the court below was seen as taking a particularly harsh view. Regarding factor two, the court was advised to reconsider the defendant's mental capacity on remand. 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 HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Reversal of Manslaughter Conviction After Jury Accesses Taped Statement

Matthew Craddock was convicted of first-degree aggravated manslaughter (N.J.S.A. 2C:11-4(a)(1)), as a lesser included offense of murder charges, for the stabbing death of James Grace, who was dating Craddock's ex-girlfriend, M.P. He was also convicted of third-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(d)) and fourth-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(d)). At trial, in addition to other evidence presented, the jury heard the defendant's entire taped confession to the police as well as a voicemail the defendant left on his girlfriend's phone after the incident. Testimony for the State was also provided by M.P., her friend L.A., and L.A.'s fiance' Mi.P who all witnessed the altercation between Craddock and Grace. None actually witnessed the actual stabbing but they did hear Grace yell "he stabbed me" and one saw the defendant throw an object that appeared to be a knife handle into the road. The defendant offered a different version of the facts than the others and claimed his actions were in self-defense as an altercation erupted when he was attempting to retrieve M.P.'s cell phone from another individual, Grace, who the defendant believed had stolen the phone. Craddock was sentenced to an aggregate 24-year term with an eighty-five percent parole ineligibility period under the No Early Release Act (NERA)(N.J.S.A. 2C:43-7.2). Craddock appealed based on the admission of the taped statements without redaction under claim that certain information in the recordings was more prejudicial than probative. In State v. Craddock, the NJ Appellate Division considered the holding in State v. Burr, 195 N.J. 119 (2008) wherein it was determined that allowing a jury full access to a videotaped statement had the potential for great prejudice. In State v. Miller, 205 N.J. 109 (2011) the court held that the review, by the jury, of taped statements should be undertaken in court where parties are present and judges my provide jury instructions with regard to portions replayed. Finally, in State v. A.R., 213 N.J. 542 (2013) the court held that the jury should not have unfettered access to audio or videotaped statements during deliberations. Once the appellate division determined that the trial court erred in providing the jury with unfettered access to the taped statements, it was further determined that the potential prejudice to the defendant from the jury's access to the statements was not harmless error and the conviction was reversed with the matter remanded to the trial court for a new trial. If you are facing charges of murder, manslaughter or weapons charges, you are facing severe penalties including as much as life in prison. When confronting criminal charges, it is imperative that you have experienced criminal defense counsel at your side to ensure you are afforded due process and your rights are protected. For more information about murder, manslaughter, weapons offenses or other serious crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Conviction For Attempted Murder of Newark Police Officer Upheld On Appeal

Omar Bridges and two co-conspirators were charged, by an Essex County grand jury, with three counts of first-degree attempted murder (N.J.S.A. 2C:11-3 and 2C:5-1); three counts of second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)); third-degree unlawful possession of a weapon, a handgun (N.J.S.A. 2C:39-5(b)); second-degree possession of a weapon, a handgun, for an unlawful purpose (N.J.S.A. 2C:39-4(a)); second-degree unlawful possession of an assault firearm (N.J.S.A. 2C:39-5(f)); third-degree receiving stolen property (N.J.S.A. 2C:20-7); second-degree eluding (N.J.S.A. 2C:29-2(b)); and first-degree conspiracy to attempt to murder the occupants of a vehicle (N.J.S.A. 2C:5-2 and 2C:11-3). Bridges was ultimately convicted of the attempted murder of Newark Police Officer Patinho, aggravated assault on Officer Patinho, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, unlawful possession of an assault weapon, receiving stolen property and certain persons not to have weapons. For his participation in stealing a Jaguar, engaging in a shoot-out with occupants of another vehicle and the shooting of a police officer in the chase thereafter, Omar Bridges was sentenced to an aggregate 40-year prison term. Officer Pathino's testimony at trial was that he saw the shoot-out while on patrol and, upon turning on the squad car's lights, a Jaguar and Subaru fled in different directions with Pathino chasing the Jaguar. The chase through Newark lasted approximately two minutes at 90 to 100 miles per hour until the Jaguar went airborne crossing railroad tracks and sustained heavy damage. When the Jaguar came to rest, Officer Pathino exited the squad car and ordered the Jaguar's passengers to show their hands at which time the passenger shot Officer Pathino. Officer Gasavage exchanged fire and the vehicle's occupants fled on foot. On appeal in State v. Bridges, the Defendant claimed the trial court erred in denying his request for a Wade hearing with regard to Officer Pathino's photo identification of the Defendant. Although New Jersey took a more broad approach to pre-trial identification in State v. Henderson, 208 N.J. 208 (2011), the Appellate Division determined that, under the circumstances of the case, United States v. Wade, 388, U.S. 218 (1967) did not serve to extend exclusionary principles of pre-trial identification procedures to in-court trial identifications in Defendant's case. The Defendant next raised the point that the sentencing court did not perform an appropriate analysis under State v. Yarbough, 100 N.J. 627 (1985) which requires the court to consider six specific criteria in sentencing. The NJ Appellate Division agreed with the Defendant and remanded the matter to the sentencing court for a full statement of its reasons for imposing consecutive sentences as required under State v. Carey, 168 N.J. 413 (2001). If you are facing murder or other serious charges, you are facing a prison sentence which may last your entire life. You require an experienced criminal defense attorney to protect your rights and ensure that your are provided with the best possible defense. For more information about murder, weapons offenses, theft and 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.

Murder Conviction Cannot Stand on Cumulative Trial Errors

Jahnell Weaver and Khalil Bryant were in attendance at a graduation party in Camden, NJ where someone pulled a gun and fired 5 shots killing Edward Williams and wounding Amyr Hill. Although only one individual could have fired the gun, both Hill and Weaver were implicated by others at the party. Jahnell Weaver and Khalil Bryant were juveniles but both were charged as adults with first-degree murder (N.J.S.A. 2C:11-3(a)(1)(2)); first-degree attempted murder (N.J.S.A. 2C:5-1 and 2C:11-3); second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)); third-degree assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(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 endangering an injured victim (N.J.S.A. 2C:12-1.2). At trial, the only significant dispute was weather Weaver or Bryant was the shooter. Both Weaver and Bryant were seen with guns at the party. Hill identified Bryant as the shooter then changed his testimony while other witnesses offered conflicting testimony. Weaver offered that Bryant later used the same weapon in a shooting as a defense and Weaver moved for a separate trial. The court denied Weaver’s application to admit other crimes evidence regarding Bryant’s shooting of another individual shortly after the incident in question due to the substantial prejudice it would cause against Bryant as well as denying Weaver’s request for a separate trial. The State was able to admit Bryant’s statement that he received the gun immediately after the shooting in question. However, because Bryant did not testify, Weaver did not have the opportunity to cross-examine him with regard to the statement. Lamike Goffney, an eyewitness, saw one of the men fleeing the scene hand the gun to another man fleeing the scene and other evidence in the trial led the jury to the conclusion that Bryant then received the weapon from Weaver. Weaver was ultimately convicted and appealed. After the NJ Appellate Division upheld the decision of the trial court, State v. Weaver was heard by the NJ Supreme Court. The NJ Supreme Court reversed the decision of the Appellate Division and remanded the matter for a new trial based on the potential prejudice to Weaver as a result of the cumulative errors in denying his request for a separate trial, refusing to allow other crimes evidence and allowing Bryant’s statement to enter without cross-examination. The penalty for murder is severe including 30 years to life in prison. If you are facing homicide charges, you need experienced criminal defense counsel to protect your rights. For more information about murder, homicide, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, assault, assault with a deadly weapon or other serious crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Rap Lyrics Are Not Evidence Of Prior Crimes

Vonte Skinner was charged with attempted murder (N.J.S.A. 2C:5-1a(3), 2C:11-3a(1)); aggravated assault resulting in serious bodily injury (N.J.S.A. 2C:12-1b(1)); and aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1b(2)); unlawful possession of a deadly weapon (N.J.S.A. 2C:39-5); and possession of a weapon with an unlawful purpose (N.J.S.A. 2C:39-4a) and convicted of attempted murder (N.J.S.A. 2C:5-1a(3), 2C:11-3a(1)); aggravated assault resulting in serious bodily injury (N.J.S.A. 2C:12-1b(1)); and aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1b(2)). Skinner received an extended term of 30 years in prison and subject to certain parole ineligibility and supervision under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2). Skinner’s case arose as a result of the 2005 shooting of Lamont Peterson multiple times at close range with a handgun. Evidence at the scene, including a cell phone belonging to Skinner, led to his arrest. During Skinner’s arrest, while driving someone else’s vehicle, his rap lyrics were recovered on the back seat of the vehicle. Peterson survived and advised the police that Peterson and Skinner both sold drugs for Brandon C. Rothwell. After Skinner joined the team as the third man, Peterson’s profits fell and he began keeping some of Rothwell’s money. Peterson and Skinner both testified that on the night of the shooting they had been in cell phone contact multiple times to arrange a meeting during which Skinner was to buy cocaine from Peterson. When Peterson arrived to meet Skinner, Rothwell was with Skinner. Peterson remembered seeking Skinner and the gun but no other details. Skinner testified that just as Peterson was about to give him the drugs he heard a gunshot and he and Peterson both ran off in different directions. Both sides offered witnesses at trial giving conflicting testimony. The State’s main evidence was the Defendant’s rap lyrics. The jury was not advised that the lyrics were written over several years but did hear an extensive portion of the lyrics and was made aware that the lyrics were in the first person view of a narrator named “Threat” which is a name Skinner has tattooed on his arm. The lyrics described multiple violent acts by “Threat”. The matter was appealed by the Defendant based in part on the reading of Skinner’s rap lyrics to jurors by the prosecution for the purpose of establishing motive and intent on the part of Skinner. The Defendant claimed the lyrics were not properly authenticated and inadmissible under N.J.R.E. 404(b) due to substantial prejudice to defendant outweighing their probative value. The NJ Appellate Division cited State v. Crumb, 307 N.J. Super. 204 (App. Div. 1997) and State v. Koskovich, 168 NJ. 448 (2001) which held that creative writing is merely expressive and does not constitute bad acts themselves and therefore writing comes within N.J.R.E. 404(b). The NJ Appellate Division determined the reading of the lyrics to be prejudicial to Skinner and prohibited by N.J.R.E. 404(b). The NJ Supreme Court heard State v. Skinner and rendered its decision on August 4, 2014. The Justices found that there was no real connection between the lyrics and the murder other than to inaccurately portray his depiction of street violence to establish Defendant’s motive and intent and upheld the decision of the NJ Appellate Division that the lyrics were highly prejudicial and of minimal probative value. The NJ Supreme Court heard the State’s argument that, under Joynes v. State, 797 A.2d 673, 677 (Del. 2002) that the act of creating rap lyrics is not, in and of itself, a “bad act” and should be governed under that standard of relevance under N.J.R.E. 401. The Court disagreed reasoning that N.J.R.E.404(b) is to protect a defendant from evidence which proves little while doing substantial harm. The Court’s primary analysis of admissibility under N.J.R.E. 404(b) was analysis of the 4 prongs of State v. Cofield, 127 N.J. 328, 336 (1992): (1) that the other crime, wrong or bad act evidence pertains to some material issue in dispute in the instant matter; (2) the other crime is similar in kind and reasonably close in time to the offense charged ; (3) proof the evidence of the other crime must be clear and convincing; and (4) any probative value is not outweighed by prejudice. If you are charged with a crime, there are strict limits to evidence which the State may use against you in making its case. To protect your freedom and rights if you are charged with any violent crime, you should consult with experienced criminal defense counsel immediately. For more information about murder, sexual assault, drugs, weapons charges or other serious crimes in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Conspiracy to Murder, Assault, Weapons Possession and Conspiracy to Distribute Drugs Overturned Due to Juror Altercation

In State v. Dorsainvil, a conviction for first-degree conspiracy to commit murder, second-degree aggravated assault (N.J.S.A. 2C:12-1b) and first-degree attempted murder, second-degree possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4), second-degree possession of a firearm during the commission of a drug-related offense (N.J.S.A. 2C:39-4.1), third-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b) and third-degree conspiracy to distribute cocaine and/or heroin was overturned as a result of an altercation between jurors during deliberations. Following the guilty finding, the defendant moved for a mistrial and the trial court denied the motion. Almost contemporaneously with the jury's announcement of a deadlock, a physical altercation between at least 2 and possibly 3 jurors occurred. The violence was severe enough to prompt the other jurors to summon a Sheriff's officer for safety. Thereafter, a guilty verdict was then rendered creating the reasonable inference that the physical altercation in some way influenced the jurors in order to break the deadlock. The NJ Appellate Division found that physical altercations between jurors was likely to result in undue influence contaminating the verdict. If you are facing charges of murder, assault, attempt, conspiracy, possession of a firearm for an unlawful purpose, distribution or possession with intent to distribute drugs, you are facing severe penalties including as much as life in prison. When confronting criminal charges, it is imperative that you have experienced criminal defense counsel at your side to ensure you are afforded due process and your rights are protected. For more information about murder, assault, attempt, conspiracy, possession of a firearm for an unlawful purpose, distribution or possession with intent to distribute drugs in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Gang Murder Conviction Remanded

Quran Goodman, a member of the Bloods gang was convicted murdering (N.J.S.A. 2C:11-3(a)) Rashon Bryant, a member of the Crips gang; third-degree possession of a handgun (N.J.S.A. 2C:39-5(b)); and second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)). Goodman, a member of the "Crips" gang under the name of "Blak", along with other Crips members from the Irvington area, attempted to convince Bryant to join the gang. Bryant was later incarcerated and joined the "Bloods" gang in prison. Upon leaving prison and later release from a half-way house, Bryant sought to meet Goodman at the corner in Irvington they frequently met at in the past, within Crip territory. Goodman shot Bryant in front of multiple eyewitnesses. Essex County Superior Court Judge John C. Kenney found evidence of gang membership to be admissible, in spite of any prejudice it may cause, as long as it is relevant and necessary for establishing motive. The judge considered testimony of Bryant's girlfriend, the State's main witness to the shooting, the fact that Bryant and Goodman were from rival gangs, that the shooting occurred on a Crip corner with Bryant being a Blood and that Goodman was unhappy Bryant became a Blood rather than a Crip. The Judge also refused to suppress a letter written from "Blak" to his cousin "Murda", also incarcerated in Essex County Jail, seemingly seeking to have Bryant's girlfriend, the state's main witness, deterred from testifying. In making that decision, the judge cited State v. Rechtschaffer, 70 N.J. 395 (1976) wherein it was decided "declarations subsequent to the commission of the crime which indicate consciousness of guilt, or are inconsistent with the innocence or tend to establish intent are relevant and admissible." After multiple witnesses from both sides offering conflicting testimony, the judge instructed the jury regarding admissibility. The judge refused to instruct the jury regarding the lesser-included offenses of aggravated manslaughter and reckless manslaughter as, pursuant to State v. Harris, 141 N.J. 525 (1995), State v. Biegenwald, 126 N.J. 1 (1991), State v. Hightower, 120 N.J. 378 (1990) and State v. Rose, 120 N.J. 61 (1990), there is no rational basis for instructing the jury on a lesser included offense when a close range shooting without any other motive presented than murder is in issue. Goodman appealed as to admissibility of multiple witness statements and the judges' refusal to instruct on lesser included offenses and the appellate division affirmed. Goodman then filed a petition for postconviction relief (PCR) which was denied. In his appeal from the denial of his petition for PCR Goodman claimed he received ineffective assistance of counsel both at the trial and appellate levels. The trial judge, without oral argument, found Goodman's petition for ineffective assistance was procedurally barred as it was not raised within his appeals. As there is a strong presumption in favor of oral argument, the appellate panel concluded that unless the presumption is overcome, which it was not in this case, denial of the PCR application without oral argument was inappropriate. The matter was reversed and remanded for reconsideration of Goodman's PCR petition. If you are facing criminal charges it is the state's burden to prove your guilt beyond a reasonable doubt. They must do so in a just and appropriate manner without false accusations, witness interference or prejudicial statements or testimony. If the state cannot prove guilt beyond a reasonable doubt, the judge or jury is required to find you innocent of the charges against you. It is critical you obtain experienced criminal defense counsel to ensure your rights are protected against prejudicial acts by the prosecution or the judge. For more information regarding gang crimes, homicide, assault, drug charges 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 an attorney.

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.

Improper Use Of DNA Evidence Is Reversible Error NJ

Dow was convicted of murder (N.J.S.A. 2C:11-3a(1)-(2)) and possession of a firearm with the unlawful purpose of using it against the person or property of another (N.J.S.A. 2C:39-4a) for shooting and killing her former lover, William Michael Seidle. The victim was shot 3 times in the home he had shared with the defendant. The police recovered no evidence of a murder weapon or any other incriminating evidence when after a search of defendant's residence and storage unit. Another woman Seidle had been seeing received 2 voice messages from a woman with a deep voice and English accent instructing her to leave Seidle alone. Neighbors testified defendant was outside Seidle's home on the morning he was killed and her car was in the driveway the night before. Defendant was suspected of faxing 2 disparaging letters to Seidle's employer within the days leading up to the murder and was identified by the clerk in the printing store from which the faxes were sent. The day after Seidle's death was reported in the news, defendant attempted suicide leaving a lengthy note indicating her suicide attempt was on that date as it was the anniversary of her daughter's death, implicating her former lover in arranging to have Seidle "fixed", accusing Seidle of beating her regularly and failing to indicate knowledge of Seidle's death but he testified to the contrary on behalf of the State. The State used a DNA expert to explain that comparing DNA to DNA found in evidence can either include or exclude them as present or determine them to be the source of the DNA and tying this into a cut on defendant's nose not seen before Seidle's death. The State's expert did acknowledge that the mixture of DNA did not mean that all of the DNA on the fabric was placed there at the same time and defendant had lived with Seidle for some time prior to their break-up just before his murder. In State v. Dow, the NJ appellate court reversed the conviction and remanded for a new trial after finding that the prosecutor's use of the DNA evidence was knowingly mischaracterized and the admission of the defendant's suicide note without adequate evaluation of her statement that the suicide attempt, on the anniversary of her daughter's death, was in any way related to guilt or avoidance of prosecution. If you are facing criminal charges, there may be multiple defenses you have and the prosecution will make every effort to utilize any piece of evidence against you. It is critical that you obtain an experienced criminal defense attorney to represent you immediately. For more information about weapons possession 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 an attorney.