Forward Progress for "Big Brother"

Not only can your house be seen through your child's gaming system or your Skype sessions but now your new Samsung "smart tv" will be able to pick up, record and transmit to others statements made by you and members of your household including legal and private information about your bank account as well as information about illegal activity going on. Presumably, the tv is always "listening" as you can turn it off and on by voice command. HeatherDarlingLawyer.com

No PTI Application After Guilty Verdict

Sean Bell was indicted for second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)) and third-degree aggravated assault (N.J.S.A. 2C:12-1(b)(7)) after fighting with another man at a party. Bell tried the case based on the second-degree charge which prevented his application to the Pre-Trial Intervention program (PTI)(N.J.S.A. 2C:43-12 to -22). During trial in State v. Bell, the second-degree charges were dismissed but Bell was convicted of the third-degree charges and made application to the PTI program. The Law Division admitted Bell to PTI in part due to Bell's reliance on State v. Halm, 319 N.J. Super. 569 (App. Div.), cert. denied, 162 N.J. 131 (1999). The State appealed based on the application being filed out of time under N.J. Court Rule 3:28(h) and State v. Wallace, 146 N.J. 576 (1996), wherein a dismissal of a second-degree offense was found not to justify a PTI application out of time. The NJ Appellate Division reversed finding Pre-Trial Intervention applications were required to be made prior to trial. On appeal, the State distinguished Halm by the timing of the defendant's PTI applications as well as the nature of the underlying charges. After substantial consideration of the purpose of diversionary programs, the NJ Supreme Court affirmed the Appellate Division's holding that the purpose of PTI was to offer defendants an opportunity to avoid the stigma of a guilty verdict and prevent use of additional judicial resources at trials. Further, the NJ Supreme Court held that permitting defendants to seek PTI after a guilty verdict would modify the program into an unintended "alternative sentencing option". Assault and aggravated assault charges are very serious and bear severe consequences including long-term incarceration. If you are facing charges of assault or aggravated assault, you should obtain experienced criminal defense counsel immediately to insure your rights are protected. For more information about assault, aggravated assault, assault with a deadly weapon 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.

Dash Camera Video Available In Traffic Cases?

In October 2014, New Jersey Superior Court Judge Vincent Grasso issued two rulings regarding police dash cam video records that have stirred quite a bit of interest from attorneys who handle traffic cases in New Jersey. As an attorney, I routinely hear a story from my clients which differs greatly from the contents of the police report I receive in response to my discovery request. Although the officer prepares a routine report at the end or shortly after their shift, they handle many similar matters day in and day out. This results in an awareness of what highlights to give attention to when writing a report as well as a blurring of their memory as to specific incidents as a result of substantial similarity in driving under the influence (DUI) stops, reckless driving stops and other motor vehicle stops. On the other hand, a driver facing DUI, reckless driving, careless driving or other motor vehicle charges is likely to be stopped on an infrequent basis and have absolutely no confusion about the conditions and events surrounding the motor vehicle stop. On the other hand, the driver is most often unfamiliar with the statute under which they are being stopped and the portions of the event they recall specifically may not relate to the statutory factors which will determine their guilt or innocence. For example, drivers often focus on conditions external to the stop which, in their opinion, gave rise to the circumstances resulting in the stop such as the need to move a vehicle after consuming alcohol. In either version of the event, the officers or the defendant's, there is the possibility for error. If Judge Grasso's ruling with regard to the cases, including Ganzweig v. Township of Lakewood, result in the routine provision of video footage to the public, the diverging stories will become of less import as there will be an accurate and unbiased video recording of the event for the defendant, the officer, the prosecutor, defense counsel and the judge to view. As it stands, obtaining video of traffic stops, when available at all, can be challenging resulting in substantial delays of the matter and frustration to clients paying attorneys for continued court appearances for no purpose other than discovery motions with regard to the video sought in any particular matter. If you are facing charges for a traffic violation including DUI, driving under the influence of drugs (DUID), reckless driving, driving while suspended, controlled dangerous substances (CDS) in a motor vehicle or other traffic matters you can face incarceration, loss of license, substantial fines and surcharges and increased insurance rates. You should seek an experienced municipal court attorney to protect your rights. For more information about traffic court matters visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Murder Pled To Aggravated Manslaughter Leads To PCR Appplication

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

Second DUI Offense Requires Mandatory Confinement

Roger Dent struck two vehicles stopped at a red light and was charged with driving under the influence (DUI)(N.J.S.A. 39:4-50), careless driving (N.J.S.A. 39:4-97), possession of an open container of alcohol (N.J.S.A. 39:4-51(b)) and failure to wear a seatbelt (N.J.S.A. 39:3-76.2(f)). The defendant was convicted of DUI in municipal court and sentenced to 180 days in prison as a third offender, as well as 10 year loss of driving privileges and substantial fines. Dent had three prior convictions for driving while intoxicated (DWI). Due to one of the prior DUIs being without counsel, that particular DUI could not be used to enhance any future custodial sentences for DUI pursuant to State v. Laurick, 120 N.J. 1 (1990). Following appeal of the municipal court decision, in the Superior Court of New Jersey, Camden County. Dent was sentenced to 60 days in prison as a second-time DUI offender which, pursuant to the judge, he could serve in the County Supplemental Labor Service (CSLSP), frequently referred to as SLAP. In State v. Dent, the State appealed the sentence as contrary to N.J.S.A. 39:4-50(a)(2) and (3) which specifies a minimum 48 hour period of incarceration which is also not to exceed 90 days and that said sentence “shall not be suspended or served on probation…” but the statute does allow for “county jail, to the workhouse of the county wherein the offense was committed, to an inpatient rehabilitation program or to an Intoxicated Driver Resource Center…” The NJ Appellate Division held that, pursuant to State v. Johnson, 42 N.J. 146, 174 (1964), “imprisonment was intended to be mandatory” for second-time or subsequent DWI offenders and remanded the matter to the Superior Court for resentencing. Dent’s argument that his 48 hours in an Intoxicated Driver’s Resource Center satisfied the 48 hour incarceration period may be considered by the Law Division as credit against any sentence he may be given thereby. If you are convicted of DUI you face serious penalties including loss of license for up to 10 years, incarceration for up to 180 days and substantial fines. You should obtain an experienced DUI attorney immediately to help fight your case. For more information about DWI, drug DUI (DUID), controlled dangerous substance (CDS) in a motor vehicle, reckless driving, refusal to submit to a breath test or other serious motor vehicle offenses in NJ 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.

No Suppression Of Handguns Shown In Video

Ronald Payne was convicted in the Superior Court of New Jersey, Essex County for two counts of second-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(b)), third-degree receiving stolen property (N.J.S.A. 2C:20-7) and third-degree resisting arrest (N.J.S.A. 2C:29-2a(3)(a)) after police received a report of a man in possession with a gun in Belleville, NJ. Upon arriving in the area, police saw the defendant run to a car which sped away as soon as the defendant got in. As police chased the vehicle, Payne pointed a gun at the officers and his actions were recorded by the cruiser's dash camera. Police ultimately stopped the vehicle and, upon removing the defendant, saw two handguns in plain view on the vehicle's back seat. In State v. Payne, the defendant sought suppression of the weapons discovered, however, the Superior Court judge viewed the patrol car's video and declined to hold a suppression hearing. The defendant pled guilty and was sentenced to 5 years in prison with a 3 year parole ineligibility period under the Graves Act (N.J.S.A. 2C:43-6(c)). The defendant appealed the denial of his suppression motion without an evidentiary hearing and the court's failure to award him appropriate jail credits at sentencing as a result of a parole violation. The NJ Appellate Division found that the defendant's appeal of the suppression motion was without significant merit as the video showed enough to see the handguns in plain view and leave no material facts in dispute, under State v. Hewins, 166 N.J. Super. 210 (1979), with regard to the handguns. The Appellate Division did remand the matter to the trial court to determine whether the 720 jail credit awarded to the defendant was appropriate or whether he was entitled to additional jail credits. Second-degree unlawful possession of a firearm or handgun carries up to 10 years in prison with a mandatory parole ineligibility period under the Graves Act. If you are facing weapons charges, you should seek experienced criminal defense counsel immediately. 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, weapons possession while on probation or parole, illegal weapons or other serious charges in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.