Drug Distribution Conviction Reversed For Lack Of Probable Cause

Jermaine Wright was charged with possession of controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10a) and possession of CDS with intent to distribute (N.J.S.A. 2C:35-5). Wright's arrest was made by police in Trenton after Ewing Township detectives received a tip from a confidential informant that "Jazzz" was delivering CDS in Trenton in a specific vehicle. Initially the Ewing detectives followed up on the tip, verifying the vehicle and general location provided by the informant, but seeing no activity indicative of drug trade, then Ewing was dispatched to another call and passed the information on to Trenton detectives. Trenton detectives located the vehicle and approached on foot. Later testimony would conflict as to whether the officers guns were drawn as they approached the vehicle. The officer used flashlights to illuminate the occupied vehicle's interior and saw the occupants using a scale to measure a quantity of CDS, which they suspected to be cocaine. As the driver exited the vehicle, a large amount of money could be viewed plainly in the purse she left behind and a bag on the passenger seat was partially open leaving a significant quantity of cocaine in plain view. In State v. Wright, Defendant attempted to suppress the evidence claiming the officers' actions constituted de facto arrest without probable cause but the judge held that the stop was investigative in nature, of limited duration and of little intrusion upon the Defendant's liberty. The judge further held that the evidence initially seized was in plain view and the remainder was seized based on probable cause and under exigent circumstances. In spite of the motion judge's determination that Trenton officers parked their vehicle in a manner to prevent the defendants' exit and swift approach with guns drawn conveying the message they were not free to leave, the judge held the stop was not thereby converted to an arrest requiring probable cause. The Defendant's motion to suppress the CDS was denied and he entered a guilty plea to narcotics related offenses. The NJ Appellate Division referred to State v. Dickey, 152 N.J. 468, 475 (1998) in holding "the temporary detention of individuals during an automobile stop by police, even if only for a brief period and for a limited purpose constitutes a seizure. The Appellate Division also referenced State v. Gibson, ___ N.J. ___, (2014) in finding the judge below inaccurately utilized the reasonable and articulable suspicion standard for a stop rather than the probable cause standard required for an arrest. After a thorough analysis of warrantless seizure cases (State v. Pena-Flores, 198 N.J. 6 (2009), State v. Cooke, 163 N.J. 657 (2000) and State v. Mann, 203 N.J. 328 (2010)) and cases involving levels of police interaction (State v. Nishina, 175 N.J. 502 (2003), Terry v. Ohio, 392 U.S. 1 (1968), State v. Stoval, 170 N.J. 346 (2002), State v. Bernokeits, 423 N.J. Super. 365 (App. Div. 2011)) the appellate judges looked to further considerations including the duration of the stop, reasonableness, degree of the intrusion and the State's interest in the welfare of the public. The Appellate Division further reasoned that a reasonable articulable suspicion was required in this case but there were no particularized facts justifying the seizure. In fact, Trenton detectives testified they observed nothing giving rise to suspicion and approached the vehicle solely on the limited information provided by the Ewing Township detectives. The appellate division reasoned that the seizure of Wright was illegal as it was not supported by reasonable and articulable suspicion. Therefore, pursuant to State v. Smith, 155 N.J. 83 (1998), the appellate division reasoned the evidence obtained from the unlawful seizure must be suppressed and reversed the decision of the court below. Drug distribution charges are met with harsh penalties due to the public interest in deterrence. If you are facing charges for drug distribution or possession, there are multiple factors which may affect the ultimate outcome and an experienced criminal defense attorney will know how to protect your rights. For more information regarding drug distribution, possession, possession with intent to distribute or controlled dangerous substances (CDS) visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

DWI Acquittal When State Failed To Prove Operation Of Vehicle

Wardell Harvey was convicted of driving while intoxicated (DWI) contrary to N.J.S.A. 39:4-50. At sentencing, he was sentenced as a 3rd offender including jail for 180 days, 10 year loss of license, required an interlock device on his vehicle for 1 year following restoration of his driving privileges and fines. At his municipal court trial, the Defendant testified that he procured five 24oz cans of beer on the way to his doctor where he was to learn whether he required back surgery. He was stopped by Officer Clerico of the Somers Point Police Department on the way to his doctor for speeding and an illegal turn. The officer further testified that, during the motor vehicle stop on the way to the doctor's office, he detected no odor of an alcoholic beverage when speaking with Harvey. Upon arrival at the doctor's office, Harvey consumed less than 2 cans of beer in the parking lot while seated in his vehicle. Following his appointment, according to the defendant, he was anticipating the arrival of a Ms. Bowen who worked in a nearby building and to whom the vehicle belonged as she would be driving him home. Prior to his returning to the vehicle, after receiving a call from someone in the doctor's office about an intoxicated patient preparing to leave the office, police stopped Harvey to question him about driving under the influence. Officer Cunningham smelled alcohol on the Defendant's breath, observed an open beer in the cup holder of the truck Harvey drove and found the keys in the truck's ignition. Harvey admitted to consuming alcohol but denied any wrongdoing. Both sides believed that State v. Snyder, 337 N.J. Super 59, (App. Div. 2001) regarding post-operation consumption of alcohol was the controlling case. The municipal court judge decided the State had met its burden of proof as to evidence of operation in a preliminary Rule 104 Hearing. Ultimately the Defendant pled with the admission of consumption of alcohol but without admission of operation. In State v. Harvey, the Law Division judge, on trial de novo, held that the evidence was insufficient to support a conviction with regard to operation prior to the doctor's appointment but sufficient to support a conviction based on his intent to drive following his doctor's appointment under State v. Mulcahy, 107 N.J. 467 (1987). On appeal, it was held that the Rule 104 hearing was inappropriate and testimony elicited therein violated the hearsay rules. Additionally, the Appellate Division held that, under Mulcahy, Harvey could not be required to submit to Alcotest testing based on the belief that "[he would] operate a motor vehicle at some time in the near future." Finally, the State changing its argument from operation prior to the doctor's appointment in municipal court to constructive operation after the doctor's visit in the Law Division was fundamentally unfair and that "appellate courts affirm or reverse judgments and orders, not reasons" Isko v. Planning Bd. of the Twp. of Livingston, 51 N.J. 162, 175 (1968). The NJ Appellate Division reversed Harvey's conviction for driving under the influence (DUI) and remanded the matter to the Law Division for a judgment of acquittal. DWI is a very serious offense with substantial consequences including jail and loss of driving privileges which may result in loss of your job and other consequences. If you are facing DUI charges, you should obtain an experienced DUI defense attorney immediately. For more information about DUI, Driving While Intoxicated (DWI), underage DUI, drug DUI, controlled dangerous substance (CDS) in a motor vehicle or other serious driving infractions in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI Defendants Have Right To Speedy Trial As Long As It Pleases The Court

Although Courts frequently force litigants into trials, especially driving under the influence (DUI) trials, for which their counsel is unprepared as a result of the state’s delay in providing discovery, frustration by repeated provision of incomplete discovery and most recently the inability to obtain discovery of full Alcotest records which are necessary to the preparation of a complete defense, the New Jersey Supreme Court ruled in State v. Cahill that speedy trial issues shall be decided on a case by case basis. On appeal, the NJ Superior Court Judge cited to Barker v. Wingo, decided in 1972, for the factors determining whether defendant’s right to a speedy trial was violated. The factors are: (1) length of the delay; (2) reason for the delay; (3) whether there was prejudice to defendant or the state as a result of the delay; and (4) whether the defendant asserted the right to a speedy trial at any time prior to the trial of the matter. The Superior Court held that the defendant, who waited a full 2 years from the date DUI charges were filed against him until he received a notice of a trial date in 2010, was deprived of his right to a speedy trial by the municipal court’s refusal to grant his motion to dismiss the charges. The Superior Court Judge’s decision was upheld by both the NJ Appellate Division and the NJ Supreme Court. DUI/DWI in NJ will have a serious impact on your life and can have significant implications in related matters such as later personal injury or vehicular manslaughter charges. If you are charged with DUI in NJ you should seek an experienced attorney immediately to protect your rights. For more information on driving under the influence, reckless driving or other serious municipal court/traffic 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 regarding your specific matter.

Murder Conviction Cannot Stand on Cumulative Trial Errors

Jahnell Weaver and Khalil Bryant were in attendance at a graduation party in Camden, NJ where someone pulled a gun and fired 5 shots killing Edward Williams and wounding Amyr Hill. Although only one individual could have fired the gun, both Hill and Weaver were implicated by others at the party. Jahnell Weaver and Khalil Bryant were juveniles but both were charged as adults with first-degree murder (N.J.S.A. 2C:11-3(a)(1)(2)); first-degree attempted murder (N.J.S.A. 2C:5-1 and 2C:11-3); second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)); third-degree assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)); second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)); third-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(b)); and third-degree endangering an injured victim (N.J.S.A. 2C:12-1.2). At trial, the only significant dispute was weather Weaver or Bryant was the shooter. Both Weaver and Bryant were seen with guns at the party. Hill identified Bryant as the shooter then changed his testimony while other witnesses offered conflicting testimony. Weaver offered that Bryant later used the same weapon in a shooting as a defense and Weaver moved for a separate trial. The court denied Weaver’s application to admit other crimes evidence regarding Bryant’s shooting of another individual shortly after the incident in question due to the substantial prejudice it would cause against Bryant as well as denying Weaver’s request for a separate trial. The State was able to admit Bryant’s statement that he received the gun immediately after the shooting in question. However, because Bryant did not testify, Weaver did not have the opportunity to cross-examine him with regard to the statement. Lamike Goffney, an eyewitness, saw one of the men fleeing the scene hand the gun to another man fleeing the scene and other evidence in the trial led the jury to the conclusion that Bryant then received the weapon from Weaver. Weaver was ultimately convicted and appealed. After the NJ Appellate Division upheld the decision of the trial court, State v. Weaver was heard by the NJ Supreme Court. The NJ Supreme Court reversed the decision of the Appellate Division and remanded the matter for a new trial based on the potential prejudice to Weaver as a result of the cumulative errors in denying his request for a separate trial, refusing to allow other crimes evidence and allowing Bryant’s statement to enter without cross-examination. The penalty for murder is severe including 30 years to life in prison. If you are facing homicide charges, you need experienced criminal defense counsel to protect your rights. For more information about murder, homicide, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, assault, assault with a deadly weapon or other serious crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

180 Days In Jail For Driving While Suspended For DUI

James French had been convicted of 9 Driving Under the Influence (DUI) events prior to being stopped by police in Warren County, NJ who observed him to be driving erratically and to have an inoperable brake light on his vehicle. He was sentenced, by Warren County Superior Court Judge Ann Bartlett, to 90 days in jail followed by 90 days in an inpatient treatment facility. The Prosecutor appealed French's sentence as not meeting the requirements of the applicable statute. In 2011, the NJ State Legislature passed new legislation, N.J.S.A. 2C:40-26(b), directed at driving while suspended for DUI. The statute was drafted by the legislature to punish those driving while suspended for multiple DUIs. N.J.S.A. 2C:40-26(b) makes driving while suspended for a second or subsequent DUI or refusal to submit to chemical breath tests a 4th degree criminal offense and requires a 180 day jail sentence with no possibility of parole. Under DUI Statute, N.J.S.A. 39:4-50, a 3rd or subsequent DUI is punished by a minimum 180 days in jail, 90 of which may be served in an inpatient rehabilitation facility. In State v. French, the NJ Appellate Division decided that the legislative intent in drafting N.J.S.A. 2C:40-26(b) was to levy a higher penalty on those who would continue to drive while suspended for DUI. In reversing the decision of the Warren County Superior Court Judge, the NJ Appellate Division determined that the statute plainly includes a 180 day jail sentence without eligibility for parole and makes no provision for inpatient rehabilitation. DUI is a very serious offense with substantial consequences including jail and loss of driving privileges which may result in loss of your job and other consequences. If you are facing DUI charges, you should obtain an experienced DUI defense attorney immediately. For more information about DUI, Driving While Intoxicated (DWI), underage DUI, drug DUI, controlled dangerous substance (CDS) in a motor vehicle or other serious driving infractions in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Change To Spousal Privilege Following Drug Distribution Case?

Yolanda Terry, Teron Savoy and multiple others were charged with conspiracy to manufacture and possess with intent to distribute as well as distribution of cocaine and heroin (N.J.S.A. 2C:5-2, 2C:35-5a and 2C:35-5b(1)). Teron Savoy and his wife, Yolanda Terry, were part of an alleged drug manufacturing and trafficking network along with approximately 20 others. Savoy was also charged as a leader of a drug trafficking network (N.J.S.A. 2C:35-3) and possession with intent to distribute heroin (N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3). As a result of their observations of Savoy and others including Terry who purportedly worked under Savoy, the State obtained a warrant to intercept communications of Savoy and others. In State v. Yolanda Terry, the spousal communication privilege was determined to protect communications between husband and wife even in the event that such communications are in furtherance of ongoing or future criminal activity. The NJ Supreme Court, in upholding the privilege and suppressing communications intercepted by the State through a wiretap of Yolanda Terry's phone, did make clear that upholding the privilege in the face of criminal activity was likely contrary to the Legislative intent. Although communications were overheard and therefore would be disclosed by the State as a third party they do not lose their privileged status according to N.J.S.A. 2A:156-11, a provision of the NJ Wiretapping and Electronic Surveillance Control Act (N.J.S.A. 2A:156A-1 to -37). In rendering its unanimous opinion the NJ Supreme Court held that although safeguarded under current legislation, the marital privilege is intended to encourage communication between spouses with the goal of harmonious marriages and is not intended to further spouses engaged in joint criminal enterprise. Also included in the opinion of the Court was the fact that multiple other privileges are set aside under exception when ongoing or future criminal activity is furthered by said privileges. An example included in the opinion of the Court was Matthews v. Hoagland, 48 N.J. Eq. 455, 465-70 (Ch. 1891) where the "crime-fraud exception to the attorney-client privilege was recognized in New Jersey common law in the case that first acknowledged the privilege itself." As a result of this case, the NJ Supreme Court petitioned the Legislature to modify New Jersey Rule of Evidence 509 to create an exception when the marital privilege serves to further criminal acts. If you have been charged with drug related crimes or were charged with criminal activity as a result of a wiretap, you should obtain experienced criminal defense counsel immediately. For more information about controlled dangerous substances (CDS) including possession, manufacturing, distribution or possession with the intent to distribute, CDS in a motor vehicle or driving under the influence (DUI) as a result of ingesting CDS visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Attempted Assault Plea Reversed For Lack of Factual Basis

Lee Travers pled guilty to second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)) and second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)). Travers appealed his convictions and his sentence of 8 years subject to an 85 percent parole disqualifier under the No Early Release Act (NERA)(N.J.S.A. 2C:43-7.2). Police discovered a loaded gun in Travers car after receiving a call that he pointed a gun at his wife in front of their children, threatened to kill her and then pulled the trigger multiple times while Travers was under the influence. Although the gun found in Traver's car was older and had problems it did fire when examined by the State's expert and the defense expert never had opportunity to examine the gun as it had been mistakenly destroyed by the State. In State v. Travers, the NJ Appellate Court heard Defendant's appeal based on his provision of a factual basis which maintained that he did not have the intent to cause serious bodily injury to his wife and merely said what he was told to say in order to enter into the plea. The plea transcript included Travers' statement "[w]hen she said don't kill me, I pulled it out and I showed it that it didn't work and wasn't real." After reading the transcript of the factual basis, the NJ Appellate Division did find the factual basis insufficient to establish the specific intent necessary to obtain a conviction for attempted aggravated assault as it was not clear whether Travers believed the gun to be operable at the time of the incident. Pursuant to State v. Sainz, 107 N.J. 283, 293 (1987), a Defendant must set forth sufficient facts constituting the essential elements of the crime. Attempted aggravated assault requires the purposeful attempt to cause serious bodily injury (N.J.S.A. 2C:5-1(a)(1)). The Appellate Division also quoted State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986), "one cannot logically attempt to cause a particular result unless causing that result is one's 'conscious object'. The Appellate Division took no position as to Travers' belief that the gun was operable but only as to the insufficient factual basis when it reversed and remanded the matter. Assault and attempted assault charges are very serious and bear severe consequences. If you are facing assault charges, you should obtain experienced criminal defense counsel immediately to insure your rights are protected. For more information about assault, illegal possession of a handgun, possession of a weapon for an unlawful purposed 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.