Accused Sex-Offender Gets New Trial After Court Error

David Bueso was charged with first-degree aggravated sexual assault (N.J.S.A. 2C:14-2a(1)); second-degree sexual assault (N.J.S.A. 2C:14-2b); and third-degree endangering the welfare of a minor (N.J.S.A. 2C:24-4a.1) for crimes committed against M.C. when she was approximately four or five years old. Bueso lived with his girlfriend, Lucero, and her mother, Amparo, who babysat M.C. in their residence and the alleged touching occurred in the residence. M.C. told her mother that Busero touched her vagina with his hand and mouth and M.C.'s mother contacted the Union County Prosecutor's Office. M.C. testified that the acts took place in the defendant's bedroom when Lucero was out of the residence. Lucero and Amparo indicated that M.C. was never alone with the defendant and they had never seen any inappropriate behavior by Bueso toward M.C. At trial, in State v. Bueso, Bueso offered exculpatory evidence and the prosecution had no concrete medical evidence of sexual acts against M.C. Additionally, M.C. offered conflicting statements as to the number of times and the dates upon which the alleged acts occurred and the jury found the defendant guilty as to alleged acts on one occasion but innocent of alleged acts on another occasion and the court sentenced Bueso to a 15-year prison term subject to the No Early Release Act (N.E.R.A) (N.J.S.A. 2C:43-7.2). Bueso appealed and the NJ Appellate division held that the plain error standard of State v. Bunch, 180 N.J. 534, 541 (2004) applied and that the court's error in failing to inquire sufficiently into the competence of M.C. to testify must be disregarded "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Pursuant to State v. G.C., 188 N.J. 118, 131 (2006), a witness must understand the nature of an oath and have sufficient capacity to recollect and communicate with respect the matters about which they are providing testimony. State v. Zamorsky, 159 N.J. super 273, 280 (App. Div. 1978) established the elements a trial judge should use to determine competency of children as witnesses as "exploring the child's conceptual awareness of truth and falsehood" and then determining "whether the child understands the duty to tell the truth." The Appellate Division held that the trial in the Superior Court of New Jersey- Law Division, Union County's failure to make sufficient inquiry into M.C. competency was plain error and required a new trial. If you have been charged with a sex crime you face severe consequences including prison, societal scorn and inclusion on the sex offender registry and possible involuntary civil commitment. It is critical you obtain experienced defense counsel to immediately begin to review the prosecution's, evidence, speak with witnesses, explore alibis you may have and build a defense. For more information about sexual assault, aggravated sexual assault, criminal sexual contact, endangering the welfare of a minor and other sex crimes visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Judge's Finding Against Civil Commitment Of A Sex-Offender Is Reversed

C.H. is a rapist with a history of sex crime convictions for acts committed from 1978 through 2005 against women ages 17 to 36. C.H. also has a history of convictions for drug offenses, robbery, receiving stolen property and theft, parole violations and failure to register as a sex offender. As a result of his previous post-release behaviors and prior pleas and guilty verdicts including sexual assault, attempted criminal sexual contact, terroristic threats, assault, criminal sexual assault, criminal restraint, criminal attempt and rape the State petitioned, in the Superior Court of New Jersey, Essex County, for the civil commitment of C.H. pursuant to the Sexually Violent Predator Act (SVPA)(N.J.S.A. 30:4-27.24 to -27.38) upon his scheduled release from the Special Treatment Unit (STU). In May 2012, two State psychiatrists both found that C.H. fit the criteria for civil commitment under the SVPA due to his inability to control his own sexually violent behavior, likelihood of reoffending and danger to the public as set forth in In re Commitment of W.Z., 173 N.J. 109 (2009) and In re Civil Commitment of A.H.B., 386 N.J. Super. 16 (App. Div. 2006). The State’s burden of proof in seeking civil commitment is clear and convincing evidence pursuant to In re Civil Commitment of J.H.M., 367 N.J. Super. 599 (App. Div. 2003). During a commitment hearing, C.H.’s psychiatrist contended that C.H. was not “highly likely” to reoffend if released. Although the judge held that C.H. suffered from paraphilia, antisocial personality disorder (ASPD) and polysubstance abuse and there was a risk that C.H. would reoffend, the judge held that the State had not met its burden of proof. In re the Civil Commitment of C.H. resulted in the State’s appeal of the judge’s finding with regard to C.H.’s likelihood of reoffending. Pursuant to In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007) a trial court’s order of commitment under the SVPA will be reversed only for “an abuse of discretion or lack of evidence to support it.” Under In re D.C., 146 N.J. 31 (1996) the record must be reviewed to determine whether the judge’s decision reflected the evidence presented and findings set forth by the experts for both sides collectively where the factfinder would not have sufficient knowledge to make an informed decision without reference to expert opinions. Reasoning that the judge’s failure to find a risk of re-offense in light of evidence and expert opinions presented was a “mistaken exercise in discretion” the N.J. Appellate Division reversed the matter with direction to the trial judge to more fully review the record with regard to the issues presented at future review hearings regarding the commitment of C.H. If you are facing sex crime charges the consequences are severe including potential registry as a sex-offender under Megan's Law, the stigma associated with sexual assault perpetrators, prison and possibly civil commitment. If you are charged with a sex crime, you should obtain experienced criminal defense counsel immediately. For more information about sexual assault, rape, internet crimes, solicitation of a minor, endangering the welfare of a minor or other sex crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sex Assault Conviction Overturned Due To Police Officer's Prejudicial Testimony

E.S. was convicted of first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)); second-degree sexual assault (N.J.S.A. 14-2(b)); and second-degree endangering the welfare of a child (N.J.S.A. 2C:24-4(a)) based on allegations by his stepdaughter S.W. S.W. was born in 1996 and her mother, N.S, married E.S. in 1998. E.S. and N.S. had children of their own. Living conditions in the family home were beyond crowded and the parents and five children, including S.W., all slept in one bedroom. S.W. complained to her mother in 2008 about multiple touchings by E.S. and when nothing changed, S.W. complained to Aziza Hassan, her teacher. During the interaction with Hassan, S.W. began sobbing in the early morning before school began after Hassan found S.W. waiting in the classroom. Hassan asked S.W. what the problem was and, after S.W. indicated there were problems at home, Hassan asked S.W. if she was raped. Once S.W. indicated to Hassan that S.W. had been raped, Hassan notified the police, DYFS and school authorities. E.S. was arrested after an investigation and sentenced to 12 years in prison with an eighty-five percent parole ineligibility period under the No Early Release Act (N.E.R.A.)(N.J.S.A. 2C:43-7.2) and a concurrent 6 year term also subject to NERA. In State v. E.S., E.S. appealed based on multiple issues which the court found did not prejudice his rights. The N.J. Appellate Division held that one of the issues raised on appeal by E.S. was valid and had substantial probability of prejudicing the jury. Detective Jennifer Novak of the South River Police Department made multiple statements at trial, in the jury's presence, which supported the credibility of S.W. In particular, Novak indicated her belief of S.W.'s statements and implied that the investigation revealed evidence that the crimes had occurred. Even after the admonishment of the trial judge, Novak continued to make implications about the veracity of S.W. and guilt of E.S. The N.J. Appellate Division heavily weighed the matter of Novak's testimony and sighted to multiple prior decisions regarding the matter. State v. J.Q., 252 N.J. Super. 11 (App. Div. 1991) addressed the issue of witness credibility being a question for the jury. State v. Landeros, 20 N.J. 69, (1955) held that police officers may not offer opinions as to the defendant's culpability when testifying as fact witnesses. Novak's implication that notes written by S.W. in response to Hassan's questioning about the word 'rape' included more inculpatory evidence than they did was contrary to State v. Bankston, 63 N.J. 263 (1973). The N.J. Appellate Division held that the testimony of Novak could have prejudiced the jury against E.S. and reversed the convictions and remanded to the Law Division for a new trial on all three counts of the indictment. If you are accused of sexual assault or other sex crimes in NJ you are facing very serious penalties including civil commitment, prison and lifetime registry as a sex offender. You need experienced legal counsel to defend you against these charges. For more information about sexual assault, rape, endangering the welfare of a minor, solicitation of a minor, internet crimes or other sex crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Sex Offender's Have Right to Self-Representation In Civil Commitment Proceedings

Although civil commitment proceedings for sex offenders who have completed their prison sentences are civil rather than criminal in nature, the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27 to -27.38, dictates that counsel will be provided for such hearings. D.Y. is a 52 year old male with a history of sexual assaults against minors. In 1986, D.Y. was indicted for first-degree sexual assault (N.J.S.A. 2C:14-2(a)(1)); second-degree sexual assault (N.J.S.A. 2C:14-2(b)) and third-degree endangering the welfare of a minor (N.J.S.A. 2C:24-4(a)) based on allegations by D.Y.’s 12 year old nephew, C.Y., against D.Y. Ultimately D.Y. received a 5 year sentence in exchange for a plea to second-degree sexual assault against C.Y. In 1994, after his release, D.Y. befriended 12 year old A.B. who later alleged D.Y. had sexually abused him by engaging in touching, oral and anal sex and the display of child pornography to A.B. by D.Y. as well as videotaping sexual acts between A.B. and D.Y. As a result of A.B.’s allegations, D.Y. was charged with first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(1)), second-degree sexual contact (N.J.S.A. 2C:14-2(b)), and third-degree impairing the morals of a child (N.J.S.A. 2C:24-4(a)). Upon entering a guilty plea to first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(1)) in 1999 he received an 18 year prison sentence with a 6 year period of parole ineligibility at the Adult Diagnostic Treatment Center at Avenel (ADTC). Additionally, charges were levied by federal authorities and D.Y. was sentenced to 137 months of incarceration. In 2008, D.Y. completed his period of incarceration and a decision as to the civil commitment of D.Y. was required in order to protect the public if D.Y. was still considered a danger to children. In In the Matter of Civil Commitment of D.Y., 426, N.J. Super. 436 (App. Div. 2012), ___ N.J. ___(2014) the N.J. Supreme Court overturned the Appellate Division’s ruling and upheld D.Y.’s right to represent himself at his civil commitment hearing, as long as standby counsel was available at all times to facilitate as necessary for D.Y. The ruling was based on the long-standing right to self-representation dating back to 13th century English law. Although the right to self-representation exists, Justice Patterson writing for the Court included that self-representation “seldom proves to be a sound strategic choice.” If you are facing charges for sex offenses, you should obtain experienced criminal defense counsel immediately. For more information about sexual assault, rape, statutory rape, endangering the welfare of a minor, child pornography or other sex crimes in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

NJ Legislature Proposes Residential Restrictions on Sex Offenders

A newly proposed bill that is currently being sent to the New Jersey State Senate could have a possible impact on sex offenders throughout the state. The bill, named S-570 would give power to municipalities to enact restrictions on where registered sex offenders would be able to reside, excluding them from areas such as kindergartens or parks. At present, municipalities throughout the state of New Jersey are not permitted to enact restrictions on the proximity of sex offenders to certain areas due to the lack of uniformity it may cause from town to town. If the bill being proposed by the Senate Law and Public Safety Committee, uniformity will be taking a back seat to safety. Discussion of restricting the residency and location of sex offenders throughout the state has been taking place since the inception of Megan’s law in 1994. Megan’s law, also known as the Sex Offender Act of 1994 on the national level, was created to require the registration of sex offenders as well as notification of all residents when a sex offender moves into their neighborhood. These laws on both our state and national levels have created a sense of security for many citizens who now feel as though they have more information needed to help keep their children safe from potential danger. Bill S-570 would create the addition to Megan’s law that many residents have been calling for from its inception. If approved, the bill would provide that registered sex offenders be at least five hundred feet away from prescribed locations set by each municipality such as schools, parks and kindergartens. It would be up to each municipality to set boundaries within their town, however the municipality would have to follow the model set out by the state. The bill is currently being sent to the New Jersey State Senate for a vote. A conviction or a plea for sex crimes in NJ will have a serious impact on your life ranging from restrictions on residence, lack of acceptance in society, lack of employment opportunities, incarceration and even permanent confinement to a treatment facility. If you are charged with sexual assault, possession of child pornography, molestation, endangering the welfare of a minor, solicitation of a minor, rape, statutory rape or other sex crimes you should seek an experienced defense attorney immediately to protect your rights. For more information regarding sex crimes or other criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and is not intended to replace the advice of an attorney.