Juvenile's Excited Utterance Admissible Under Hearsay Exception

State of New Jersey In the Interest of A.R. involved a 14 year old juvenile found guilty of touching a 7 year old child, J.C., sexually on a school bus, a crime that would constitute second-degree sexual assault (N.J.S.A. 2C:14-2(b)) if committed by an adult. J.C. was diagnosed with autism and ADHD. Upon exiting the bus, which was returning the children from summer camp, J.C. exclaimed that A.R. had touched him. There were 20 children on the bus and no witnesses to the alleged act. J.C. repeated his statement to a detective days later. The trial judge from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County court found that the exclamation upon exiting the bus and statements during the detective's interview were admissible under the "tender years" exception to the hearsay rule (N.J.R.E. 803(c)(27)). At the bench trial in the, the court found J.C. incompetent to understand the proceedings and offer testimony but did accept J.C.'s testimony based on N.J.R.E. 803(c)(27). On appeal, the N.J. Appellate Division determined that the statements to the detective were testimonial in nature, under Crawford v. Washington, 541 U.S. 36 (2004), and A.R.'s counsel was not able to protect the confrontational rights of the 14 year old through cross-examination due to the incompetence of J.C. The Appellate Division held that the exclamation upon exiting the bus was not testimonial in nature and remanded for reconsideration. 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, sex-offenses, Megan's Law provisions 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.

Sexual Assault Was Apparent To Judge But Sentencing Not As Obvious

Marvin Flores-Gamez was indicted for first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(1)); 2 counts of second-degree sexual assault (N.J.S.A. 2C:14-2(b)); and third-degree endangering the welfare of a child by engaging in sexual conduct with the victim (N.J.S.A. 2C:24-4(a)). In 2011, the Flores-Gamez contacted 12 year old Susan on Facebook, when Flores-Gamez was 19. Susan and Flores-Gamez traded messages on Facebook for some time before he began to mention the idea of having sex with her. In November 2011, Susan agreed to meet Flores-Gamez, with Susan's cousin, Kate, and Kate's boyfriend, Tim, present. The 4 went to Susan's house and the men gave the children juice that tasted like alcohol. Flores-Gamez and Susan ended up alone together in the bedroom and, when Susan resisted his advances, Flores-Gamez removed her clothes and began to have sex with her. When he refused to stop, Susan bit Flores-Gamez on the hand to make him stop. For the next 5 days, Susan and Flores-Gamez exchanges messages on Facebook until Susan's father discovered Susan had missed school and, during the subsequent inquiry, learned what had happened. Susan's father took her to the police station and, during an investigation, Flores-Gamez provided a statement with facts similar to those Susan provided. At trial, the Defendant did not testify. Both Tim and Kate testified that the Defendant and Susan were never alone together and that the Defendant did not sexually assault Susan. A psychologists report was also offered to show that Susan had indicated Tim's mother was also in the apartment and was the one who stopped the sexual assault. Following a trial in the Superior Court of New Jersey, Law Division, Bergen County, Flores-Gamez was found guilty of 2 counts of second-degree sexual assault. Flores-Gamez was sentenced to a concurrent 8 year term for both counts, subject to an 85% parole disqualifier under the No Early Release Act (N.E.R.A.) (N.J.S.A. 2C:43-7.2). In State v. Flores-Gamez, the defendant appealed. The N.J. Appellate Division affirmed the decision of the trial judge except defendant's sentence. The Appellate Division held that the trial judge did not follow proper procedure with regard to sentencing. The judge listed the aggravating and mitigating factors, without making any specific findings in regard thereto, and then meted out the sentence. The judge found aggravating factors one and two; however, the victim's age was an element of second-degree sexual assault and could not be considered. Also, the trial judge failed to give any indication that the mitigating factors raised by the defendant were considered. The Appellate Division remanded for resentencing. If you are charged with a sex crime you are subject to incarceration, registration as a sex offender and the accompanying stigma which will effect where you may live, where you may work and how others will treat you and possibly even civil commitment. It is critical that you obtain experienced criminal defense counsel to assist you with these charges. For more information about rape, endangering the welfare of a minor, sexual assault, criminal sexual contact and 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.

First-Degree Aggravated Sexual Assault Remanded For Jury Charge

R.P. was convicted of first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(6)) against his step-daughter O.M. while she was under the age of thirteen. R.P. was sentenced to 26 years in prison with a 13 year period of parole ineligibility. On the defendant's appeal, challenging the conviction based on the trial court's failure to charge the jury with the lesser-included offense of second-degree sexual assault (N.J.S.A. 2C:14-2(c)(1)), the NJ Appellate Division found for the Defendant and vacated the conviction. Additionally, the Appellate Division denied the state's request for a molded verdict pursuant to State v. Farrad, 753 A.2d 648, 164 N.J. 247, 192 N.J. 294 (2007), and remand for a new trial with on the first-degree aggravated sexual assault charge. The NJ Supreme Court's review of State v. R.P. was focused solely on the state's request for a molded verdict. Pursuant to State v. Farrad, the court identified 3 factors: (1) the defendant had his day in court; (2) each element of the lesser-included offense was included in the more serious offense; and (3) the jury's conviction for the more serious offense implies guilt in of the lesser-included offense. In State v. R.P., the court added a prejudice element to the 3 factors by stating that, when all 3 factors are met and the defendant is not unduly prejudiced, a molded verdict should be granted for the state. The court reversed and remanded the matter. If you are charged with a sex crime you are subject to incarceration, registration as a sex offender and the accompanying stigma which will effect where you may live, where you may work and how others will treat you and possibly even civil commitment. It is critical that you obtain experienced criminal defense counsel to assist you with these charges. For more information about rape, endangering the welfare of a minor, sexual assault, criminal sexual contact and 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.

Sexual Assault Conviction Upheld After Appellate Dissent

T.J.M. was accused by the daughter of his girlfriend, with whom he resided, of sexual abuse. T.J.M. was charged with second-degree sexual assault (N.J.S.A. 2C:14-2(b)), first-degree aggravated sexual assault (N.J.S.A.. 2C:14-2(a)(1)) and second-degree endangering the welfare of a minor (N.J.S.A. 2C:24-4(a)) and was ultimately convicted of second-degree sexual assault and endangering the welfare of a minor. Chloe, the child making the accusations, indicated that T.J.M. had abused here over a period of roughly 4 years in the residence they shared and in the defendant's van. The conviction of T.J.M. in the Bergen County Superior Court, Law Division, Criminal part was affirmed by the NJ Appellate Division but a dissenting opinion within the Appellate Division led to an appeal. In a pretrial hearing, the trial judge determined that the defendant's 6 year old conviction for resisting arrest during a driving under the influence (DUI) stop could be utilized to impeach him at trial. Additionally, Chloe's lengthy history of involvement with the juvenile justice system prior to making the allegations against the defendant was limited to defense counsel's cross-examination at trial. The defendant raised, on appeal, Chloe's entrance and presence in the courtroom during summation of the defense and prosecution to which an objection had been raised during trial as well as the fact that person's in the courtroom were identified. The dissenting opinion focused on the cumulative errors set forth above resulting in a deprivation of the defendant's right to a fair trial. During an appeal as a matter of right, in State v. T.J.M., the NJ Appellate Division determined that the dissenting opinion was not correct in its interpretations and focus and upheld the opinion of the NJ Appellate Division affirming the defendant's conviction. Sex crime charges can be levied many years after an alleged incident and can result in incarceration, substantial and irreparable damage to the reputation and lifestyle of the accused in addition to the deprivation of liberty and rights, registration as a sex offender, loss of employment opportunities, possibility of civil commitment and social stigma. If you are accused of a sex crime it is absolutely imperative that you obtain experienced criminal defense counsel to begin working on your defense immediately. For more information about sexual assault, rape, endangering the welfare of a minor, internet crimes, child pornography or other sex crimes in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of counsel.

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.

Sexual Assault Remanded For Consideration Of Mitigating Factors

V.E.A. was indicted for second-degree sexual assault (N.J.S.A. 2C:14-2(b)) and second-degree endangering the welfare of a child (N.J.S.A. 2C:24-4(a)) and was convicted on both counts following a jury trial. The charges stemmed from the accusations of his daughter that she awoke one evening to find the Defendant’s hand inside her shorts and panties on her buttocks after falling asleep on his bed while they were watching a movie. The child testified that he then began to move his hand around toward the front of her body and upward toward her breast at which time she asked to go to the bathroom. The Defendant excused her to go to the bathroom and did not continue the behavior according to his daughter. At sentencing, V.E.A. received a 7 year prison sentence with an eighty-five percent parole disqualifier subject to the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2) for sexual assault and a concurrent 7 year prison sentence for the second count of the indictment. In State v. V.E.A. the NJ Appellate Division heard V.E.A.’s arguments with regard to aggravating and mitigating factors and the disparity in the trial court judge’s findings with regard to same. The NJ Appellate Division found that where the judge stated at sentencing that she found no mitigating factors to exist but in the Judgment of Conviction indicated mitigating factor 10 (N.J.S.A. 2C:44-1(b)(10)) “the defendant is particularly likely to respond affirmatively to probationary treatment” applied and was accorded substantial weight by the trial judge such conflicted existed as to warrant the remand of the matter for resentencing with appropriate review of the aggravating and mitigating factors. If you are charged with a sex crime you are subject to incarceration, registration as a sex offender and the accompanying stigma which will affect where you may live, where you may work and how others will treat you and possibly even civil commitment. It is critical that you obtain experienced criminal defense counsel to assist you with these charges. For more information about rape, endangering the welfare of a minor, sexual assault, criminal sexual contact and other sex crimes in New Jersey 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.

Sexual Assault Plea Reversed For Failure To Understand Supervision

William Smullen pled guilty to two counts of second degree sexual assault (N.J.S.A. 2C:14-2c(4))for having sexual intercourse on two separate occasions with a 15 year old female while he was 23 years old. The defendant was sentenced to lifetime supervision under N.J.S.A. 2C:43-6.4 as part of his plea agreement. In addition to federal charges, based on defendant's travel from his home state of New York to have sexual relations with the minor, Smullen was sentenced in New Jersey to 3 years in prison and community supervision for life. Following sentencing in State v. Smullen, the Defedant sought post-conviction relief (PCR) claiming insufficient opportunity to fully understand the scope of community supervision for life in spite of the 10 page document the judge provided him during the plea hearing which summarized lifetime community supervision. Additionally, the Defendant claimed ineffective assistance of counsel as a result of counsel's failure to explain the restrictions Smullen would face in New York under Megan's Law. The PCR court determined that holding the attorney accountable for failure to advise the Defendant of supervision requirements in other states was inappropriate. The Appellate Division held that, as a lifelong resident of New York, the Defendant should have been advised of the applicable provisions of community supervision for live which would be applicable to him as a New York resident and reversed the decision of the PCR court. it was also established at trial that the defense attorney was unaware of the terms of supervision for life in New Jersey as well and asked for additional time to review the provisions but was denied same. The matter was remanded for a determination of whether the Defendant would have pled guilty or exercised his right to a trial if he understood the community supervision provisions of his sentence. If you have been charged with a sex crime a conviction or guilty plea can result in incarceration for a term of years followed by involuntary civil commitment for life. Consequences also include registration as a sex offender and the social stigma you will face forever. It is critical you obtain experienced criminal defense counsel immediately if you are charged with a sex crime. For more information about rape, sexual assault, child molestation, solicitation of a minor 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.

Financial Penalty For Sex Crimes Under Sex Crime Victim Treatment Fund (SCVTF)

The NJ Supreme Court recently decided State v. Bolvito, a case pertaining to financial penalties imposed upon sex offenders. Carlos Bolvito pled guilty to first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(b)), second-degree sexual assault (N.J.S.A. 2C:14-2(a))and second-degree endangering the welfare of a child (N.J.S.A. 2C:24-4) for acts committed with his stepdaughter. As a result of his plea, Bolvito's sentence included payment to the Sex Crime Victim Treatment Fund (SCVTF) pursuant to N.J.S.A. 2C:14-10. The defendant challenged the amount of his fine as N.J.S.A. 2C:14-10 does not state the factors a sentencing court must consider when setting financial penalties under the SCVTF. The statute merely offers a maximum of $4,000 and the plea was silent as to the amount of the fine. The NJ Supreme Court held that the nature of the offense and the defendant's ability to pay during any custodial sentence and after release. The Supreme Court also held that the sentencing court should provide a statement of reasons for the amount set in order to establish a record for future judicial review. The matter was remanded to allow the trial court to set the SCVTF amount according to these guidelines. Commission of a sexual offense can be discovered many years after the incident or incident and can result in substantial and irreparable damage to the reputation and lifestyle of the accused in addition to the deprivation of liberty and rights, registration as a sex offender, loss of employment opportunities, possibility of civil commitment and social stigma. If you are accused of a sex crime it is absolutely imperative that you obtain experienced criminal defense counsel to begin working on your defense immediately. For more information about sex crimes, sexual assault, aggravated sexual assault, internet crimes, child pornography, rape, endangering the welfare of a minor or other criminal matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sexual Assault Case Hinges On Voluntary Confession

In State v. R.P. the defendant was convicted of sexual assault by sexual penetration of a blood relative between the ages of 16 and 18 (N.J.S.A. 2C:14-2(c)(3)(a)); fourth degree criminal sexual contact (N.J.S.A. 2C:14-3(b)); and one count of endangering the welfare of a child (N.J.S.A. 2C:24-4(a)). The defendant was sentenced to 8 years each on counts one and two to be served consecutively with the remaining sentences to be served concurrently with count one resulting in a total sentence of 16 years. Defendant lived with his biological children and his wife. His wife suspected defendant of being unfaithful and placed a recording device in their bedroom and, days later, found a recording of the defendant and his daughter in what seemed to be sexual acts. The defendant's wife contacted the Bergen County Prosecutor's office who interviewed the defendant's 17 year old daughter who advised the prosecutor sexual acts had occurred between her and the defendant. Detectives visited R.P. at his residence, notified him he was the subject of an investigation and requested that he go to the Prosecutor's Office with them for questioning. The defendant went with the detectives, was Mirandized and waived his Miranda rights. During an 8 minute videotaped interview the defendant stated that for approximately 6 months he and his daughter would lie, in their underwear, on the bed defendant shared with his wife and watch television while the defendant hugged and kissed his daughter's body. He also admitted to putting his mouth on her vagina but denied ever having sexual intercourse. The matter was originally heard in Bergen County Superior Court. At trial, defendant's wife indicated she was under a great deal of stress when she thought the voices were her husband and his daughter and later realized the voices were her cousins who had been visiting that weekend. The daughter provided the same testimony she had originally provided to the detectives. The taped confession was provided to the jury and admitted into evidence without objection by defense counsel. The defendant appealed the matter based on lack of the voluntariness of his confession for failure of the court to comply with N.J.R.E. 104 relating to voluntariness of the confession and N.J.R.E. 403 balancing test to determine whether the probative value of defendant's statement was substantially outweighed by the prejudice it would cause against defendant. R.P. claimed his confession was "false because it was made in a stressful and inherently coercive situation." State v. Cook, 179 N.J. 533 (2004), State v. Jordan, 147 N.J. 409 (1997) and State v. Kelly, 61 N.J. 283 (1972) are among a long line of cases indicating that confessions obtained under coercive circumstances are inherently unreliable. The NJ Appellate Division remanded the matter for a Rule 104 hearing in which the state must demonstrate the voluntariness of the defendant's confession beyond a reasonable doubt. The appeals court did not agree with the State that the evidence against defendant was "overwhelming" and found the failure to conduct a Rule 104 hearing to be plain error. The Appellate Court further considered the fact that admission of the confession, if it was involuntary, could certainly produce an unjust result. If you are charged with a sex crime you are subject to incarceration, registration as a sex offender and the accompanying stigma which will affect where you may live, where you may work and how others will treat you and possibly even civil commitment. It is critical that you obtain experienced criminal defense counsel to assist you with these charges. For more information about rape, endangering the welfare of a minor, sexual assault, criminal sexual contact and other sex crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sex Offender's Confession Inadmissible

Bergen County Superior Court Judge Patrick Roma oversaw a trial in which R.P. was convicted on four counts of 2nd degree sexual assault by sexual penetration of a blood relative between the ages of 16 and 18 (N.J.S.A. 2C:14-2(a)), one count of 4th degree criminal sexual contact (N.J.S.A. 2C:14-3) and one count of 2nd degree endangering the welfare of a child (N.J.S.A. 2C:24-4) for allegedly having sexual contact with R.P.'s own 17 year old daughter, "Jane". R.P. was sentenced to consecutive 8 year terms on two of the counts, with the remaining sentences to be served concurrently. R.P.'s wife, "Vera", was suspicious that R.P. and "Jane" were having a sexual relationship and placed a recording device in the master bedroom of their home and later found a recording of a "very explicit sexual interaction" in which, upon reporting, she verified the voices of "Jane" and R.P. "Jane" advised officers, during her interview, that she and her father were sexually involved and that she participated due to privileges he would afford her including use of a car, later curfew and permission to date. "Vera" later recanted her testimony indicting she was under substantial stress at the time she made the tape and identified the voices and later realized the voices were those of her cousins who had been visiting the residence at the time of the recording. R.P. initially denied the allegations and later confessed in a video and audio interview by police to a consensual sexual relationship indicating they never had intercourse. R.P. challenged the conviction based on the voluntariness of the confession in which one officer was yelling at him and, due to lack of understanding, made statements to protect his daughter. R.P. claimed "Jane" provided false testimony based on R.P. having disciplined her and he also stated the voices on the wife's tape were those of the wife's cousins. The Appellate Division found no impropriety in the two consecutive sentences based on the need to deter such activity. However, in regard to the confessions, they held that, in spite of defense counsel's failure to object to the confession upon the prosecution's entry of the statement into evidence but then calling for a mistrial the following day, it was plain error for the trial judge not to conduct a hearing under NJ Rule of Evidence 104 to determine the voluntariness of the confession. Rule 104 addresses the reliability of statements given during confession in an effort to ensure confessions are given only voluntarily, without duress, compulsion or coercion. Rule 104 also deems confessions under such circumstances are unreliable. The Appellate Division reversed for a new trial requiring the state to prove voluntariness of the confession beyond a reasonable doubt. 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.

First or Second Degree Sexual Assault Conviction Turns On "Severe Personal Injury" To Victim

In 2005, O.M., a 32 year old woman, first disclosed that she was sexually abused by her stepfather, R.P. when she was a child. R.P. was convicted of first-degree aggravated sexual assault by committing an act of sexual penetration with O.M. when she was at least 13 but less than 16 and related to O.M. by affinity (N.J.S.A. 2C:14-2(a)(2)(a)) and defendant stood in loco parentis within O.M.'s residence (N.J.S.A. 2C:14-2(a)(2)(c)); first-degree aggravated sexual assault by commission of an act of sexual penetration with O.M. while using physical force or coercion, and O.M. received severe personal injury (N.J.S.A. 2C:14-2(a)(6)) and second-degree aggravated sexual assault by committing an act of sexual penetration with O.M. while she was at least 16 but less than 18 (N.J.S.A. 2C:14-2(c)(3)). An additional count of first-degree aggravated sexual assault by committing an act of sexual penetration on a minor under thirteen (N.J.S.A. 2C:14-2(a)(1)) was dismissed. Upon conviction, R.P. received two concurrent 18 year prison terms with a 9 year period of parole ineligibility and a concurrent 8 year prison term with a 4 year parole disqualifier. O.M. testified that R.P. began molesting her when she was 12 years old, initially by performing oral sex on her or penetrating her digitally. Later, the abuse by R.P. progressed to sexual intercourse without condoms with physical force over O.M.'s objections. The regular assaults resulted in 2 pregnancies when O.M. was age 16 and the first prior to her attaining age 16. The earlier pregnancy was terminated by abortion and O.M. gave birth to the second. The NJ Appellate Division held that, although substantial time had elapsed there was substantial evidence upon which a determination of guilt could be made. Where the Appellate Division found issue with the trial court's finding was in regard to failure to charge the jury on sexual assault as a lesser-included offense of aggravated sexual assault. In State v. Ramsey, 415, N.J. Super 257, 266 (App.Div. 2010) the court held "improper instructions on material issues are presumed to constitute reversible error" in criminal trials. Pursuant to N.J.S.A. 2C:14-2(a)(6) an act of sexual penetration on another using physical force or coercion in which the victim sustains "severe personal injury" constitutes first-degree aggravated sexual assault. Under N.J.S.A. 2C:14-2(c)(1) an act of sexual penetration on another using physical force or coercion without "severe personal injury" to the victim constitutes second-degree sexual assault. Other than the "severe personal injury" the elements of these two offenses are the same and the trial court's failure to charge the jury on the lesser-included offense is plain error which could have produced an unjust result. No court in New Jersey has held an unwanted pregnancy to constitute severe personal injury and the question of severe personal injury would then be left to a jury on a case by case basis. Commission of a sexual offense can be discovered many years after the incident or incident and can result in substantial and irreparable damage to the reputation and lifestyle of the accused in addition to the deprivation of liberty and rights, registration as a sex offender, loss of employment opportunities, possibility of civil commitment and social stigma. If you are accused of a sex crime it is absolutely imperative that you obtain experienced criminal defense counsel to begin working on your defense immediately. For more information about sex crimes, internet crimes, child pornography, rape, endangering the welfare of a minor or other 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.

Sexual Assault Sentence Requires Explanation

The defendant in State v. R.D. was convicted, in a non-jury trial, of 6 counts of 2nd degree sexual assault (N.J.S.A. 2C:14-2(b)) on his daughter C.D. while she was under the age of 13, 3 counts of 2nd degree engaging in sexual conduct that would harm, impair, or debauch the morals of a child while under a legal duty to care for her (N.J.S.A. 2C:24-4(a)) , aggravated assault on his daughter while she was under the age of 13 (N.J.S.A. 2C:14-2(a)(1), one count of 3rd degree terroristic threats (N.J.S.A. 2C:13-3a) to her if she disclosed the abuse and 1 count of 3rd degree attempt to cause or recklessly cause significant bodily injury (N.J.S.A. 2C:12-1(b)(7)) to C.D. The state presented witnesses on child sexual abuse. C.D. and the defendant lived in the same household from birth and the abuse became more invasive and frequent as she aged reaching a number of several times monthly and including penetration. Defendant failed to testify or present witnesses. The Bergen County trial judge sentenced defendant to an aggregate 70 year prison sentence which was subject to the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2). Defendant appealed based on the court's reliance on opinion testimony concerning Child Sexual Abuse Accommodation Syndrome (CSAAS) by the State's expert and errors and omissions in the judge's sentencing analysis. The NJ Appellate Division heard the appeal as to the errors and omissions but affirmed the convictions. Due to the trial judge's failure to make clear for which sentences were intended to be consecutive or concurrent, failure to set forth the Yarbough factors to justify any consecutive sentences and failure to specifically set forth any jail credits or "gap time" credits defendant may be entitled to the Appellate Division remanded for resentencing. If you are facing charges for sexual assault, endangering the welfare of a minor or similar charges, you should consult an experienced criminal defense attorney immediately. If you are convicted or plea to a sex crime in New Jersey, in addition to incarceration you face lifelong listing on a registry which can affect your ability to obtain employment, restrict where you may reside and generally have a negative impact on the remainder of your life. For more information about soliciting a minor, statutory rape, child molestation, internet crimes, child pornography or other sex crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

How High Should Bail Be To Insure Defendant's Appearance

In State v. Steele, 61 A.3d 174 (2013), Defendant Tyrone Steels appealed from the order of the Passaic County Superior Court denying his motion to reduce bail on two indictments for fourth degree offenses. Bail was set at $150,000, cash only, for 6 counts of lewdness, N.J.S.A. 2C:14-4b(1), and $50,000, no 10% option, for violating a condition of community supervision for life (CSL), N.J.S.A. 2C:43-6.4d for failing to report arrests to his parole officer and refrain from initiating contact with a minor. The Defendant pled guilty to 1st degree kidnapping, robbery and attempted sexual assault under separate indictments from Bergen and Passaic in 1997 and was incarcerated until 2010 when released subject to CSL and Megan's Law. The charges relating to the challenged bails occurred while defendant was on bail for prior violations of CSL. The State's plea offer included recommendations of 2 concurrent 18 month terms for the lewdness charges which would run consecutive to 3 concurrent 18 month charges for the community supervision violations charged. The NJ Appellate Division reviewed the Superior Court Judge's denial of the bail reduction motion and found that the trial court was incorrect in its consideration of the safety of the community when setting the bail amount for the two 4th degree offenses in excess of the $2,500 maximum set forth in N.J.S.A. 2C:6-1. In order for bail to have been set at $150,000, cash only, and $50,000 no 10%, there would be a necessary showing that defendant's release on bail constituted a serious threat of destruction of evidence by defendant or danger to witnesses. In spite of the fact that the bail amounts set were excessive, the defendant faced exposure to sentences significantly longer than typical for the underlying offenses and bail in excess of the $2,500 maximum was appropriate and necessary to ensure the defendant's appearance at trial. If you are arrested and facing bail, it is critical you secure your release so you can continue to work and can participate in your own defense. However, bail is often high and many are forced to incur financial hardship through non-payment of other expenses to meet bail or pay fees to a bondsman in order to obtain their release. An experienced attorney can often obtain a decrease in your bail amount so you are free to return to your job and family and are better able to assist in your defense. For more information about bail reduction, bail setting or other criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney.

Additional Charge In Sexual Assault On Minor Does Not Always Mean More Time

Although he did not escape guilt, the defendant did receive a reduced sentence for charges of first degree aggravated assault, second degree sexual assault and second degree endangering the welfare of a minor in State v. W.L. Following a jury trial, the defendant was sentenced to 15 years imprisonment with an 85 percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the crime of 1st degree sexual assault into which the crime of 2nd degree sexual assault was merged. The defendant was also sentenced to 7 years for endangering the welfare of a minor to be served consecutively to the 15 years for the other charge. When sentencing, a Judge may count aggravating factors only once and must apply a Yarbough analysis when imposing an excessive sentence. The judge in State v. W.L. applied aggravating factors 2 (gravity of the offense), 3 (risk defendant will commit another offense) and 9 (the need to deter such activity) and mitigating factors 7 (defendant's lack of criminal history) and 8 (the likelihood the defendant's behavior will recur). An essential element of the conviction for aggravated sexual assault was the child's age and finding of an aggravating sentencing factor cannot be based solely on an essential element of the crime charged. Additionally, the sentencing Judge failed to apply the appropriate standards from State v. Yarbough, 100 N.J. 627, 643-644 (1985) in determining whether to impose a consecutive sentence for count 3, endangering the welfare of a minor. If you are facing charges for sexual assault, endangering the welfare of a minor or similar charges, you should consult an experienced criminal defense attorney immediately. If you are convicted or plea to a sex crime in New Jersey, in addition to incarceration you face lifelong listing on a registry which can affect your ability to obtain employment, restrict where you may reside and generally have a negative impact on the remainder of your life. For more information about soliciting a minor, statutory rape, child molestation, internet crimes, child pornography or other sex crimes in New Jersey visit HeatherDarlingLawyer.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.