Juvenile's Waiver of Miranda Rights Upheld

D.N., was a 16 year old juvenile when charged with offenses that, if committed by an adult would include second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)); possession of under 50 grams of marijuana (N.J.S.A. 2C:35-10(a)(4)); defiant trespass (N.J.S.A. 2C:18-3(b)) and obstructing the administration of law (N.J.S.A. 2C:29-1(a)). Police responded to a caller saying that D.N. entered a grocery store after being notified he was not permitted to do so and, during a search, located and seized suspected marijuana from D.N.’s person. In the presence of his mother, at the police station, D.N. was read his Miranda rights and invoked his right to remain silent. Weeks later, D.N.’s mother contacted police and advised them that she had found a handgun in a backpack in her residence and, upon their arrival, consented to a search of the backpack. D.N. was taken for questioning upon returning home. The “Juvenile Miranda Warning” form was used to advise D.N. and his mother of D.N.’s rights under Miranda and D.N. and D.N. agreed to speak to the police. D.N. ultimately confessed to that he had made a deal with a gang member wherein he would be paid to deliver the gun to a third party. D.N. moved to suppress the confession and the judge held that D.N. knowingly and voluntarily waived his rights as he had exercised those rights only weeks earlier. In State of New Jersey in the interest of D.N., D.N. pled guilty to second-degree unlawful possession of a handgun, possession of under 50 grams of marijuana, defiant trespass, and obstructing the administration of law and, pursuant to a plea agreement, the State dismissed the weapons charges. D.N. was sentenced to 2 years probation, community service, drug evaluation and participation in a residential treatment program among other conditions. D.N. appealed the denial of his suppression motion. The New Jersey Appellate Division held that the “suspect’s will was not overborne by police conduct” as is the test under State v. Presha, 163 N.J. 304, 313 (2000). Pursuant to State in the Interest of A.S., 203 N.J. 131, 147 (2010), the presence of D.N.’s mother was given considerable weight in favor of voluntariness of the confession as well. In light of prior opinions and the fact that D.N. had knowingly invoked his right to remain silent only weeks prior, the Appellate Division affirmed the decision of the trial judge. If a juvenile is charged with a crime, the disposition of the charges can change his or her future by prohibiting them from entering certain schools, fields of employment and, in the case of Megan's Law offenses, certain residences or neighborhoods. It is critical for any juvenile charged with a criminal offense to seek an experienced juvenile defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, weapons offenses, possession of marijuana, trespass or other criminal charges in NJ, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Seizure of Drugs Found During Illegal Stop Upheld

In Utah v. Edward Strieff, the U.S. Supreme Court upheld the ability of police to obtain a conviction based upon drugs found in his vehicle during an illegal stop. Justice Clarence Thomas provided the decision of the Court holding that an individual’s Fourth Amendment Rights are not violated if an officer, in the process of an illegal stop, finds a warrant for the Defendant’s arrest and the search incident to arrest leads to the discovery of evidence. A residence in Salt Lake City was being monitored following an anonymous report of drug activity. After an officer watched random individuals come and go from the residence, he stopped Streiff and discovered that Streiff had an outstanding warrant for a prior traffic violation. The stop was later determined to be unlawful as the officer lacked probable cause to stop the vehicle and there was no reasonable suspicion with regard to any particular individual. Based on the warrant the officer took Streiff into custody and conducted a search incident to arrest. During the search, the officer found Streiff to be in possession of methamphetamines and drug paraphernalia. Streiff filed a motion to suppress the narcotics based upon the unlawful stop and the matter was litigated through the courts and the Supreme Court granted certiorari to this case based on the Fourth Amendment rights involved. The United States Supreme Court was divided 5 to 3 on the issue. Justice Sonia Sotomayor wrote a dissent indicating her belief that the ruling will have a disproportionate effect on “people of color” although Edward Streiff is a white male. Sotomayor further indicated she believed the decision greatly increase the power of police going so far as allowing them to conduct random stops to check for warrants even if they had no belief any crime was afoot. Sotomayor included that the 8 million open warrants in the U.S. mean many are subject to prosecution based on evidence seized as a result of illegal and pretextual stops and included that such stops “corrode all our civil liberties and threaten all our lives” referring to those “black and brown” people most often targeted. The majority opinion of the court was that the evidence was not “fruit of the poisonous tree” as established in Wong Sun v. United States, 371 U.S. 471 (1963) as it fell under the “attenuation doctrine” set forth in Hudson v. Michigan, 547 U.S. 586 (2006) to the exclusionary rule established in Weeks v. United States, 232 U.S. 383 (1914). Weeks held that evidence resulting from an unlawful search could not be used by the prosecution. The court, in Hudson v. Michigan, held that evidence from an illegal search could be admissible when the connection between the unconstitutional conduct of the police and the discovery of the evidence is “sufficiently remote” or there are “intervening circumstances.” Hudson v. Michigan, 547 U.S. 586, 593. The reasoning offered in Streiff was that the discovery of the warrant was sufficient to break the causal link between the illegal stop and the discovery of the controlled dangerous substances (CDS) thereby rendering the methamphetamines a product of the warrant rather than the illegal stop. The court did leave room for future litigation with regard to good faith actions on the part of the officer finding that in the case of Streiff the officer was at worst negligent. Sotomayor’s dissent indicated that good faith must be rejected when the sole purpose of the stop was to search for evidence which would prove drug activity was going on in the residence. Drug charges can destroy your future and you are subject to greater consequences each time you are convicted of a drug charge. If you are facing drug charges for possession or distribution, you should consult an experienced criminal defense attorney immediately. For more information about controlled dangerous substance (CDS) charges, distribution, possession, driving under the influence charges, paraphernalia or CDS in a motor vehicle 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.

Distribution Conviction Reversed For Detective's Improper Testimony

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

Weapons Offense Merges Into Burglary Charge

Sherrone Robinson was charged with third-degree conspiracy to commit aggravated assault (N.J.S.A.. 2C:5-2; 2C:12-1); second-degree conspiracy to commit burglary (N.J.S.A. 2C:5-2, 2C:18-2); second-degree burglary (N.J.S.A. 2C:18-2); second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a); second-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b); second-degree possession of a weapon by a convicted person (N.J.S.A. 2C:38-7); fourth-degree aggravated assault (N.J.S.A. 2C:12-1b(4)); and third-degree hindering apprehension (N.J.S.A. 2C:39-3b(1)). Robinson pled guilty to second-degree burglary and second-degree possession of a weapon for an unlawful purpose in exchange for dismissal for the other charges. For the burglary the state recommended a 4 year prison term and concurrent 5 year term for the weapons offense. The burglary offense was subject to an eighty-five percent parole ineligibility period under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2) while the weapon offense carried a mandatory minimum term of three years pursuant to the Graves Act (N.J.S.A. 2C:43-6(c)). In State v. Robinson, Robinson later appealed the sentence arguing that the weapon possession was for the purpose of the burglary and should be merged therewith rather than included as a separate conviction and offense. In making his argument for merger, Robinson relied on State v. Tate, 216 N.J. 300, 302 (2013) (citing State v. Davis, 68 N.J. 69, 77 (1975)), which held that an accused committing a single offense cannot be punished as if they committed more than one offense. State v. Messino, 378 N.J. Super. 559, 585 (App. Div. 2005) provided an alternative analysis of N.J.S.A. 2C:1-8, regarding merger of offenses, which suggested a more "flexible approach" to merger wherein the elements of the crimes are considered. In State v. Diaz, 144 N.J. 628, 636 (1996), the court held that "when the only unlawful purpose in possession the [weapon] is to use it to commit the substantive offense, merger is required." The NJ Appellate Division reviewed the record and noted that defense counsel stated the prison terms as set forth in the plea agreement, the judge then reviewed those terms with the defendant on the record and the defendant indicated a full understanding thereof. The Appellate Division decided that the defendant received the benefit of the plea bargain as his counsel negotiated the plea bargain with the State on his behalf. The Appellate Division remanded the matter for correction of the judgment of conviction to reflect merger of the convictions and a sentence of 5 years total of which 4 were subject to an 85 percent parole disqualifier under NERA. Burglary charges are not often lightly sentenced as they involve the possibility of great physical harm when the intruder and the owner or dweller accidentally meet and both act in fear. If you are facing burglary charges, you should seek experienced criminal defense counsel immediately. For more information about burglary, weapons, assault, theft, robbery 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.

S2003/A4229 Promotes Rehabilitation Of Juvenile Offenders

In a move to promote rehabilitation of juvenile offenders, juveniles may receive additional protection from facing trial as adults if S2003, a Senate bill, the same as A4229 in the Assembly, is passed. The bill pertains to how juveniles facing criminal offenses may be tried, held before and after trial, and represented. Presently, juveniles age 14 and over may be tried as adults. S2003 would make 15 the minimum age at which a juvenile could be tried as an adult. S2003 would permit juveniles to be tried as adults only for Criminal homicide other than death by auto, strict liability for drug induced deaths, first-degree robbery, carjacking, aggravated sexual assault, sexual assault, second-degree aggravated assault, kidnapping, aggravated arson, certain gang criminality; or when the juvenile had previously been adjudicated delinquent, or convicted, on the basis of certain offenses enumerated; or when the juvenile had previously been sentenced and confined in an adult penal institution; or offense against a person committed in an aggressive, violent and willful manner; or the unlawful possession of a firearm, destructive device or other prohibited weapon, arson or death by auto while under the influence of an intoxicating liquor, narcotic, hallucinogenic or habit producing drug; or a violation of N.J.S.2C:35-3, N.J.S.2C:35-4, or N.J.S.2C:35-5; or a conspiracy; certain forms of attempt or conspiracy; or theft of an automobile pursuant to chapter 20 of Title 2C of the New Jersey Statutes; or possession of a firearm with a purpose to use it unlawfully against the person of another or the crime of aggravated assault, aggravated criminal sexual contact, burglary or escape if, while in the course of committing or attempting to commit the crime including the immediate flight therefrom, the juvenile possessed a firearm; or computer criminal activity which would be a crime of the first or second degree; and other specific crimes involving controlled dangerous substances. Juveniles age 14 and over may now be housed with adults but S2003 would prohibit juveniles under 18 from being incarcerated in adult jails or prisons rather than the current limit of 16 years old. In certain cases juveniles could remain in youth facilities until age 21 even if they are convicted as adults. At present, juveniles may be placed in solitary confinement for not more than ten days per month. As the concept behind S2003 is rehabilitation first and foremost, solitary confinement of juveniles would be a measure of last resort and heavily restricted. If all other avenues are exhausted and the juvenile remains a threat to facility security or others solitary confinement may be utilized for no more than two consecutive days for juveniles who are 15 years of age, three consecutive days for juveniles ages 16 and 17 and up to a maximum of five days for juveniles age 18 and over. Juvenile cases are typically heard in Family Court and, under S2003, they would be entitled to counsel, either private or appointed, during all hearings relating to the transfer of their individual case from the Family Part to the Criminal Part. A prosecutor seeking to move a juvenile matter to the Criminal Part would be required to provide written notice to the Family Part judge setting forth the reasons the transfer is being sought. Additionally, the Family Part judge would be required to undertake their own analysis and then accept or reject the prosecutor’s motion. The bill was passed by both the Senate and Assembly and now will move before Governor Chris Christie for consideration. If you or your child have been charged as a juvenile offender, it is critical that you seek an experienced criminal defense attorney immediately to protect your rights and your future. Do not compound one mistake by choosing the wrong criminal defense attorney. For more information about juvenile offenses, gang crimes, and various criminal offenses in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Juvenile Offender Will Be Treated Differently Under NJ Senate Bill 2003

In a move to promote rehabilitation of juvenile offenders, juveniles may receive additional protection from facing trial as adults if New Jersey Senate Bill 2003 (S2003) is passed. The bill pertains to how juveniles facing criminal offenses may be tried, held before and after trial and the level of representation required in hearings to move juvenile matters to the Criminal Part of the Superior Court. Presently, juveniles age 14 and over may be tried as adults. S2003 would raise the minimum age at which a juvenile could be tried as an adult to 15. S2003 would permit juvenile to be tried as adults only for the most serious offenses including criminal homicide; strict liability for drug induced deaths; first-degree robbery; carjacking; sexual assault; second-degree aggravated assault; kidnapping; aggravated arson; certain gang criminality; a crime committed at a time when the juvenile had previously been adjudicated delinquent or confined to an adult correctional facility; violent, aggressive, and willful crimes against another; unlawful possession of a firearm, destructive device or other prohibited weapon; arson; death by auto if the juvenile was operating the vehicle under the influence of an intoxicating liquor, narcotic, hallucinogenic or habit producing drug (DUI); a violation of N.J.S.2C:35-3, N.J.S.2C:35-4, or N.J.S.2C:35-5; a conspiracy which is a part of a continuing criminal activity and the circumstances of the crimes show the juvenile has knowingly devoted himself to criminal activity as a source of livelihood; an attempt or conspiracy to commit any of certain enumerated acts; theft of an automobile; serious computer criminal activity; distribution of any controlled dangerous substance or controlled substance analog while on any property used for school purposes, or within 1,000 feet of such school property. The State would bear the burden of proving that the nature and circumstances of the charge or the prior record of the juvenile are sufficiently serious that the interests of the public require waiver. Juvenile cases are typically heard in Family Court and, under S2003, they would be entitled to counsel, either private or appointed, during all hearings relating to the transfer of their individual case from the Family Part to the Criminal Part. S2003 would require a prosecutor seeking to move a juvenile matter to the Criminal Part to provide written notice to the Family Part judge setting forth the reasons the transfer is being sought. Additionally, the Family Part judge would be required to undertake their own analysis and then accept or reject the prosecutor’s motion. Juveniles age 14 and over may now be housed with adults but S2003 would prohibit juveniles under 18 from being incarcerated in adult jails or prisons rather than the current limit of 16 years old. At present, juveniles may be placed in solitary confinement for not more than ten days per month. As the concept behind S2003 is rehabilitation first and foremost, solitary confinement of juveniles would be a measure of last resort and heavily restricted. If all other avenues are exhausted and the juvenile remains a threat to facility security or others solitary confinement may be utilized for no more than two consecutive days for juveniles who are 15 years of age, three consecutive days for juveniles ages 16 and 17 and up to a maximum of five days for juveniles age 18 and over. In further accord with the goal of rehabilitation, academic instruction and academic counseling, vocational education, post-secondary educational opportunities, alcohol and narcotics treatment programs, mental health services, medical and dental care, regular contact with the family members, work programs to prepare the juvenile for treatment, re-entry services, and any other services or assistance reasonably related to the rehabilitation of the juvenile shall be provided as appropriate. S2003 is sponsored by Democrats and received no support from the Republican party. The bill passed the Senate and is presently in the Assembly for consideration and revision. If you are a juvenile facing criminal charges your future is at stake and should not be left to chance. Your future and freedom may depend on the outcome of your case making it imperative that you seek experienced defense counsel immediately. For more information about juvenile offenses including drug charges, possession of a controlled dangerous substance (CDS) in a school zone, assault, sex crimes, school issues, breaking and entering, gang related crimes, burglary or other serious matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Officer Unqualified To Give Opinion Allows Reversal Of Drug Convictions

Wasan Brockington was convicted of possession of a controlled dangerous substance (CDS), possession with intent to distribute CDS, distribution of a controlled dangerous substance, possession with intent to distribute a controlled dangerous substance in a school zone and conspiracy. The drugs in question were cocaine and heroin. New Brunswick Police were conducting surveillance in a specific location. Sergeant Quick claimed to have witnessed several transactions wherein money was handed by third-parties to the co-defendant, Fitzpatrick, then the defendant would walk down a driveway with the third-party and they would both return within a minute and the third-party would walk off. Quick suspected these were drug transactions and even characterized each transaction as a heroin transaction or a cocaine transaction. However, he made no arrests, had no evidence to test and claimed to be at a substantial distance viewing the transactions through binoculars. At some point, officers closed in and saw Brockington throw down a newspaper with bags of suspected heroin inside and found 2 bags each of heroin and cocaine on the third-party suspected drug buyer leaving the scene. After police seized Brockington and the evidence, he advised that all of the drugs were his and that the co-defendant was innocent. In State v. Brockington, the defendant filed a motion to suppress his statement, to compel the disclosure of the officers’ surveillance point and other pre-trial motions but all were denied by trial judge in the Superior Court of New Jersey, Law Division, Middlesex County. The defendant also objected to the inclusion of Sergeant Quick’s testimony regarding drug transactions he allegedly witnessed as his testimony was elicited by the prosecutor in a manner making him appear to be an expert on the subject of drugs and drug transactions when he offered that he could discern cocaine from heroin at a great distance but the court allowed it. At the conclusion of trial, no limiting instruction to the jury was requested. Brockington was sentenced to 10 years with a 5 year parole ineligibility period. Defendant appealed and the N.J. Appellate Division looked to N.J.R.E. 701as interpreted in the similar matters of State v. McLean, 205 N.J. 438 (2011) and United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005), cert. denied, 552 U.S. 1154, 128 S. Ct. 1100, 169 L. Ed.2d 831 (2008) wherein it was held that “a lay opinion must be the product of reasoning processes familiar to the average person in everyday life.” The Appellate Division found the opinion of Sergeant Quick to far exceed the established boundary of lay opinion testimony. The prosecutor also bolstered Quick’s testimony as credible and accurate which further prejudiced the defendant in violation of the strictures set forth in State v. Bradshaw, 195 N.J 493 (2008) and State v. Frost, 158 N.J. 76 (1999). The Appellate Division then reviewed and compared a litany of cases to determine whether testimony about the other alleged transactions in which no arrests were made and from which no evidence was retrieved violated N.J.R.E. 404 (b) and determined it may be used as the probative value was not likely substantially outweighed by prejudice to the defendant. The matter was ultimately reversed and remanded for a new trial based on the likelihood of unfair prejudice toward Brockington. Penalties for drug distribution in NJ are severe and lasting, often including lengthy prison terms with significant parole ineligibility periods. If you have been charged with a drug offense an experienced criminal defense attorney can protect your rights. For more information about drug distribution, possession, possession with intent to distribute or controlled dangerous substances (CDS) visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Man Is Charged With Possession Of A Firearm After Calling 9-1-1 To Aid Another

Donald Peterson was charged with second-degree possession of a firearm (N.J.S.A. 2C:39-7(b)) and fourth-degree possession of a machete (N.J.S.A. 2C:39-7(a)) as a result of being a good samaritan. Peterson called the Hillsborough Police to report an unconscious male in front of his residence. Ultimately a murder investigation ensued with regard to the man discovered, based on the suspicious death of the 16 year old male. The Somerset County Prosecutor’s Office obtained a warrant to search the residence of Peterson for evidence that the victim had been in Peterson’s residence including “hair, fibers, fingerprints, bodily fluids, DNA, and other microscopic/forensic evidence. During multiple interviews with police officers, after Miranda warnings, Peterson admitted to having a criminal history as well as possessing weapons. While searching Peterson’s residence, the police discovered a Winchester rifle and a machete which Peterson was prohibited from possessing under N.J.S.A. 2C:39-7 as a certain person prohibited from possessing weapons due to his prior criminal history. Although no evidence was discovered liking Peterson to the death of the man he discovered on his sidewalk, he was indicted for the weapons possessions charges. In State v. Peterson, the defendant sought to suppress the discovery of the weapons in light of the fact that, although discovered in plain view during the search, discovery was not inadvertent given his prior notice to officers of his possession of same. Over the State’s objection, the NJ Superior Court, Law Division- Criminal Part, Somerset County suppressed the weapons in reliance on State v. Bruzzese, 94 N.J. 210, 236 (1983) holding inadvertent discovery to be an essential element for application of the ‘plain view’ exception to the search warrant requirement. The NJ Appellate Division reviewed the matter and found the inevitable discovery doctrine to apply in this case involving a search warrant for evidence establishing the victim’s pre-mortem presence in Peterson’s residence. Pursuant to State v. Marshall, 199 N.J. 602, 611 (2009), a lawful search should be limited to the areas likely to lead to discovery of the intended object of the search. In State v. Sheehan, 217 N.J. Super. 20 (1987), the court determined that when a search warrant applies to the entire premises, any item discovered therein is lawful as within the scope of the warrant. The court determined that State v. Gamble, 218 N.J. 412, 412 (2014) provided the N.J. Supreme Court with the opportunity to strike down or limit inadvertent discovery doctrine yet the justices did not seize upon said opportunity. The court turned to State v. Sugar, 108 N.J. 151, 156-157 (1987) establishing proof required by the State to invoke the inevitable discovery doctrine as follows: “(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.” Based on Peterson’s statements to police regarding his criminal history and his possession of the rifle, a warrant would have properly issued for a search for the weapon wholly independent of the warrant related to whether the victim had been present in Peterson’s residence pre-mortem. The NJ Appellate Division found the inevitable discovery doctrine to apply in this matter and reversed the trial court’s suppression of the rifle. If you are facing weapons charges, you should seek experienced criminal defense counsel immediately to protect your rights. For more information about weapons possession, use or possession of a gun in the commission of a crime, possession of a handgun without a permit, certain persons not to possess weapons or weapons charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Drug Addicted Defendants No Longer Denied Admission To Drug Court For Weapons Charges

Over the rejection of the prosecution, Gregory Maurer sought entry into Drug Court while under separate indictments for (1) third-degree possession of a controlled dangerous substance (CDS) (ocycodone) (N.J.S.A. 2C:35-10(a)(1)); (2) two counts of third-degree possession of CDS (oxycodone and heroin) (N.J.S.A. 2C:35-(a)(1)); (3) third-degree possession of CDS (cocaine) (N.J.S.A. 2C:35-10(a)(1)); and (4) two counts of third degree theft by unlawful taking (N.J.S.A. 2C:20-3(a)) and third-degree burglary (N.J.S.A. 2C:18-2(a)(1)). The prosecutor’s denial was based solely on Maurer’s prior charge for possession of a handgun (N.J.S.A. 2C:39-5(b)) and hollow point bullets. The trial court made its decision based on the defendant’s prior conviction for a weapons related offense and Maurer appealed. In State v. Maurer, the NJ Appellate Division determined that the defendant’s record, the “Manual for Operation of Adult Drug Courts In New Jersey” (July 2002)(Manual) and the Drug Court Statute (N.J.S.A. 2C:35-14). The NJ Appellate Division did consider that Maurer had also been charged with witness tampering (N.J.S.A. 2C:28-5) and other prior CDS charges which were remanded to the respective municipal courts for disposition. They also considered Maurer’s participation in Narcotics Anonymous and other substance abuse counseling programs as well as his employment as an outreach counselor at a rehabilitation facility. The NJ Appellate Division considered that Drug Court is appropriate for “offenders most likely to benefit from treatment and do not pose a risk to public safety.” State v. Meyer, 192 N.J. 421, 428-29 (2007) (quoting Manual, Supra, at 3). The opinion also included a thorough review of Drug Court success rates and the Legislative intent to end the cycle of drug offenders interacting with the criminal justice system as a result of addiction. State v. Bishop, 429 N.J. Super. 533, (App. Div.), 216 N.J. 14 (2013). There was also discussion of a two “track” system wherein, according to the Manual, a criminal history involving a firearm acts as a bar to admission in spite of the apparent Legislative intent to increase Drug Court access for those likely to benefit from resolving addiction issues. The Court resolved that an amendment to the Track Two admission criteria was required and remanded the matter for consideration of the defendant’s application to Drug Court despite his prior weapons offense. If you are facing distribution or possession charges, there are many factors which may affect how your case is ultimately resolved. You should immediately retain experienced criminal defense counsel to protect your rights. For more information regarding drug distribution, possession with intent to distribute, weapons offenses or 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.

Sentence For Possession With Intent To Distribute Should Fit The Offender At The Time Of Sentencing

Joseph Jafee pled guilty, in the Superior Court of New Jersey, Law Division, Morris County, to third-degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(a)(1)) for which the judge imposed a three-year sentence in spite of marked changes in Jaffee’s lifestyle in the year between his guilty plea and sentencing. Jaffee became engaged and acted as a father to his fiancee’s son, remained sober, routinely attended substance abuse meetings and became a counselor to at-risk youth. Additionally, as part of the plea agreement, Jaffee cooperated in the prosecution of his co-defendants. Judge Manahan followed the sentencing guidelines but refused to consider the changes Jaffee had made in the prior year. The NJ Appellate Division affirmed the sentence and Jaffee appealed. In State v. Jaffe, the NJ Supreme Court considered the opinions of State v. Bridges, 131 N.J. 402 (1993) and State v. Hodge, 95 N.J. 369 (1984) with regard to its analysis of uniform sentencing consideration. In addition, the NJ Supreme Court pointed to the fact that the NJ Code of Criminal Justice does allow for consideration of the defendant’s individual situation. Ultimately, the NJ Supreme Court held that, in light of State v. Randolph, 210 N.J. 330 (2012), the Law Division should have assess the defendant “as he stands before the court on the day of sentencing” in addition to simply weighing the aggravating and mitigating factors. After making the determination that Jaffe’s circumstances at the time of sentencing should be considered, the NJ Supreme Court remanded for resentencing in light of the fact that the sentencing judge specifically declined consideration thereof. If you have been charged with possession or possession with intent to distribute a controlled dangerous substance (CDS), it is critical that you obtain experienced criminal defense counsel immediately in order that all exculpatory evidence may be obtained, favorable witnesses may be located, and all appropriate procedures are followed by the police and the prosecution. There are frequently problems with consent to search, warrants, Miranda warnings, inappropriate denial of suppression motions and improper trial procedure which may make a substantial difference in the outcome of your matter. For more information about possession, intent to distribute, CDS, conspiracy and other drug charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

NJ Firearms Purchaser Identification Card Denied For NY Charges

George Winston was denied a New Jersey firearms purchaser identification (FPI) card in 2011 as a result of convictions in New York of attempted assault in 1974 and possession of a controlled dangerous substance in 1989. The Clifton, New Jersey Chief of Police denied Winston an FPI card in spite of "certificates of relief from disabilities" for the prior New York convictions pursuant to N.J.S.A. 2C:58-3c(1). In the Matter of the Denial of the Application of Winston the Superior Court- Law Division, Passaic County judge heard testimony from Winston and others as well as a Clifton detective undertaking the background search with regard to the application. The Clifton detective indicated that Winston's background also included domestic violence charges, a driving under the influence (DUI) charge and disputes with neighbors on more than one occasion. The Law Division judge found that the New York certificates of relief were not entitled to the Full Faith and Credit Clause as they were not equivalent to a New Jersey expungement under New York law but rather they remove certain bars to employment under New York law. If you are seeking a permit to obtain a firearm, you should seek an experienced attorney to assist you in your matter. If you are caught illegally carrying firearms the penalties can be severe making it well worth the effort to seek a permit to carry legally. For more information about gun or weapon possession, possession of weapons during a drug related offense, armed robbery, possession of a handgun without a permit, use or possession of a gun in the commission of a crime, illegal weapons, unlawful possession of a weapon or possession of a weapon while on parole or probation visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Drugs Suppressed When Found Outside Scope Of Warrant

Police executing a no-knock warrant at a residence located Chad Bivins and co-defendant, Sayid Jordan, in a vehicle located several residences away and, upon removing them from the car searching them, discovered 30 bags of crack cocaine on each of them. Bivins sought to have the crack cocaine suppressed based on his location well outside the residence subject to the warrant but the trial court denied the motion holding that defendant's location was proximate to the residence based on the totality of the circumstances, especially in light of the fact that an officer assigned to the scene located Bivins and co-defendants after receiving a report of individual exiting the residence to be searched. The defendant appealed the denial of the suppression motion in State v. Bivins. The NJ Appellate Division reversed in reliance on a existing laws with regard to the scope of a search warrant. State v. Reldon, 100 N.J. 187 (1985) limits officers to a search of appropriate areas when executing a search. the warrant in question limited police to search the residence and "all persons present reasonably believed to be connected to said property and investigation. The Appellate Division distinguished this from State v. Carolino, 373 N.J. Super. 377 (App..Div. 2004) wherein "any and app persons arriving at, departing from and located [in] the residence and vehicle in question were included in the warrant and both the behavior and proximity of the defendant therein differed greatly from Bivins. Bailey v. United States, ___U.S. ___, 133 S. Ct. 1031, 185 L. Ed.2d 19 (2013) dictates that specific facts are required to connect an individual to a scene once they have departed premises subject to a warrant. The Appellate Division applied Bailey to the facts including neither the defendant nor the Pontiac in which he was located were described in the affidavit supporting the warrant, he was located a substantial distance outside the residence to be searched, the officer who searched the defendant received no report that the individuals fled the premises with evidence sought under the warrant being executed and the defendant did not act in a suspicious manner. The Appellate Division found that upholding the search would afford officers executing warrants overly broad discretion and therefore reversed the denial of the suppression motion. Drug charges, particularly distribution charges, have serious consequences including substantial terms of incarceration and enhanced penalties under certain circumstances. If you are facing drug charges and believe evidence obtained against you may have been obtained in violation of your rights, you should consult with an experienced criminal defense attorney immediately. For more information about controlled dangerous substances (CDS), warrantless searches, distribution of CDS, possession, CDS in a motor vehicle or other criminal issues in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way 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.

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.

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.

Drugs Suppressed For Lack Of Probable Cause To Arrest

An individual was seen by police leaning against the porch in front of a closed community center building in an area known for violent crime and drug activity. There was a no loitering sign posted on the building and it was very early in the morning so there was an assumption by the officer the center was closed and the individual had no business there. Upon seeing the police car, the individual, David Gibson, began walking. Officer Wayne Comengo stopped the defendant, Gibson, and based on what Comengo described as Gibson's nervous demeanor he was arrested for defiant trespass (N.J.S.A. 2C:18-3(b)). The search incident to arrest led to the discovery of 13 plastic bags of crack cocaine on Gibson's person. Gibson moved to suppress the drugs at trial based on lack of probable cause to arrest. The trial judge denied the motion finding probable cause to arrest did exist and, therefore, the crack cocaine found on his person during the search was admissible. The Appellate Division affirmed the finding of probable cause and Gibson appealed to the NJ Supreme Court. Gibson's argument was that the crack cocaine must be suppressed due to lack of probable cause as the defendant was merely waiting for a ride at the community center, two blocks from his child's mothers home where he had been visiting. Gibson further contended that because he was merely waiting for a ride he was not loitering. The sign on the building warned against loitering, not trespassing. Loitering and trespassing are different crimes and there was no sign on the community center indicating trespass onto the property was illegal. While trespass prohibits entry onto the property, loitering involves lingering or remaining on the property. In State v. Gibson, the NJ Supreme Court held that the evidence on the record was insufficient to find that probable cause to arrest for defiant trespass existed and the fruits of the search must be suppressed. Drug charges can destroy your future and, if you have prior drug charges, you are subject to harsher sentences each time. If you are facing charges for drug possession or distribution you should consult an experienced criminal defense attorney immediately. For more information about controlled dangerous substances (CDS), distribution, possession, under the influence, paraphernalia or CDS in a motor vehicle 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.

Prostitutes Charged With Committing Robbery In Atlantic City Hotel Suite

In State v. Rodriguez, the defendant was charged with 2nd degree robbery (N.J.S.A. 2C:15-1) and convicted of the lesser included offense of 3rd degree theft by unlawful taking (N.J.S.A. 2C:20-3), simple assault (N.J.S.A. 2C:12-1a), 4th degree unlawful possession of a weapon (N.J.S.A. 2C:39-5d). The defendant and her co-defendant, Mayo, were acquitted of 2nd degree conspiracy to commit robbery (N.J.S.A. 2C:15-1a(1) and N.J.S.A. 2C:5-2) and 3rd degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4d). Defendant and co-defendant, prostitutes, met 3 men in the lobby of an Atlantic City hotel and proceeded to join the men in their room. Once there both women surrounded one of the men and began touching him in an erotic manner. Shortly thereafter, the man realized his money was missing and attempted to stop the women from leaving the suite when he was sprayed in the face with pepper spray by the defendant. The defendant was sentenced to 5 years in prison with a 2 year parole disqualifier for theft by unlawful taking, a concurrent 6 month term for the simple assault charge and 1 year in prison for unlawful possession of a weapon which was to be served concurrently. Defendant was also on probation for a prior conviction of 3rd degree theft from the person at the time of the offense and pled guilty to a violation of probation (VOP) and received a concurrent 5 year sentence for the VOP. The defendant challenged her conviction based on comments during the prosecution's summation, adequacy of the jury instructions, a weapons conviction with regard to pepper spray, failure to submit lesser included offenses to the jury, cumulative error depriving the defendant of a fair trial and the sentence. The NJ Appellate Division affirmed the conviction but remanded for sentencing with regard to the VOP as the trial judge failed to set forth aggravating and mitigating factors as required under N.J.C.R. 3:21-4(g) and State v. Baylass, 114 N.J. 169, 177 (1989). Robbery, conspiracy to commit robbery and the lesser included offense of theft are very serious charges that carry substantial penalties including up to 10 years in prison for each charge. If you have been charged with robbery it is critical you obtain experienced criminal defense counsel to defend you and protect your rights. For more information regarding robbery, theft, weapons, distribution and 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.

Intent To Distribute Verdict Reversed Due To Improper Prosecution Tactics

Debra Rogers and Lameen Hill were charged with third degree possession of a controlled dangerous substance (CDS) with intent to distribute cocaine (N.J.S.A. 2C:35-10a(1)), second degree possession of a controlled dangerous substance (CDS) with intent to distribute 1/2 ounce or more of cocaine (N.J.S.A. 2C:35-5a(1),b(2), conspiracy to distribute cocaine (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5) and possessoin of cocaine with intent to distribute in a school zone (N.J.S.A. 2C:35-7). The State dismissed he conspiracy and school zone charges and Rogers was found guilty of second degree possession of a CDS with intent to distribute and third degree possession of a CDS with intent to distribute and sentenced to an extended 10 year term with a 5 year period of parole ineligibility due to a prior conviction in 1999 for distribution of CDS (N.J.S.A. 2C:35-5b(3)). In State v. Rogers the defendant appealed based on inadmissibility of the state expert's opinion as to whether items seized were for narcotics packaging and distribution, failure to charge the jury on assessment of witness credibility, multiple challenges to the warrant, lack of a fair trial and sentencing error in regard to the 5 year parole disqualifier imposed. The NJ Appellate Division affirmed the conviction for simple possession but reversed the conviction for possession with intent to distribute based on the improper opinion testimony presented by one of the investigating officers. In 2009, Perth Amboy detectives were watching defendant's apartment and noted several people coming and going therefrom within a relatively short period of time. The defendant also left the premises and was arrested upon departing from a doctor's appointment outside the residence and was returned to the apartment by police who used her key to enter the apartment and arrest other adults within, including Rogers parents, due to outstanding warrants. Co-defendant, Hill, confessed to having cocaine on his person as he was about to be searched incident to arrest for warrants. The officers proceeded to search the apartment and located 1.2 ounces of cocaine, $13,000 in cash, and three digital scales. The drugs and money were located in Roger's bedroom. Sergeant Muntone of the Midddlesex County Prosecutor's Office testified, without objection by defense counsel, that the items discovered were possessed with intent to distribute. The Appellate Division referenced State v. Timmendequas, 161 N.J. 515, 576-77(1999) which defines plain error as error possessing a "clear capacity to bring about an unjust result" and prejudices the defendant's "fundamental right to have a jury fairly evaluate the merits of the defense." The NJ Appellate Division found Muntone's testimony to be improper on its face and likened it to State v. McLean, 205 N.J. 438 (2011) wherein the prosecution elicited opinion testimony of an officer which was an unqualified expert opinion. Had Muntone been qualified as an expert under the requirements of State v. Odom, 116 N.J. 65 (1989) the testimony would have been admissible. The Appellate Division considered the fact that expert testimony offered by an investigating officer bears an inherent risk of substantial prejudice (State v. Barry, 140 N.J. 280 (1995)). Additionally, the Appellate Division took issue with the manner in which the prosecution presented the opinion testimony to effectively usurp the jury's role in considering how they will utilize "such testimony in their deliberations." Odom. The jury was not guided in the manner they could consider the opinion testimony of Muntone. Lastly, when defense counsel does not object to improper opinion testimony, it is the responsibility of the trial judge to act accordingly and exclude such testimony. State v. Nesbitt, 185 N.J. 504 (2006). Based on the Appellate Division's decision to reverse the conviction for possession of a controlled dangerous substance with intent to distribute they had no further need to address the resultant extended sentence and parole disqualifier. If you have been charged with possession or possession with intent to distribute controlled dangerous substances you must obtain experienced criminal defense counsel immediately in order that all appropriate procedures are followed by the police and the prosecution in the prosecution of your case. There are frequently problems with consent to search, warrants, Miranda, inappropriate denial of suppression motions and improper trial procedure which may make a substantial difference in the outcome of your matter. For more information about CDS, possession, intent to distribute, prescription CDS, distribution and other drug charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.