Aggravated Assault and Robbery Convictions Reversed Due To Comments At Trial By Detective And Prosecutor

Anthony Coles was charged with second-degree robbery (N.J.S.A. 2C:15-1) and third-degree aggravated assault (N.J.S.A. 2C:12-1(b)(7)) after a physical altercation with another man outside a store in Union County, NJ wherein Coles allegedly robbed the man of several hundred dollars. Although the store had a recording system, the detective charged with obtaining the video failed to obtain the pertinent part thereof in order to bolster the State's case. Prior to the taping over of the portion of the video wherein Coles and the victim both appeared in the store, the video was viewed by officers who responded to the scene as well as the victim who identified Coles in the video as the person who beat and robbed him. Coles indicated that he knew the victim prior to the event because he had previously purchased marijuana from the victim and gave a different version of the reasons for the altercation. In State v. Coles, the detective charged with obtaining the video testified regarding the benefit the missing video would have offered the State's case as well as opinion testimony with regard to the State's case in general. Over the objection of defense counsel, the trial judge permitted the testimony of the detective and inappropriate statements made by the prosecutor during the state's closing argument. Based on the cases presented, the defendant was convicted of theft from the person (N.J.S.A. 2C:20-2(a)(2(e)) and simple assault (N.J.S.A. 2C:12-1(a)(1)) and sentenced to an extended 9 year term in prison as a persistent offender under N.J.S.A. 2C:44-3(a) with a discretionary parole disqualifier of 4.5 years. The NJ Appellate Division looked to State v. McLean, 205 N.J. 438 (2011) and State v. Vandeweaghe, 177 N.J. 229 (2003) regarding the matter of lay opinion testimony removing one function of the jury. McLean specifically sets forth that officer testimony may "include opinion…or what the officer 'believed', 'thought' or 'suspected,'…"McLean, 205 N.J. at 460. The Appellate Division determined it was error by the trial court to permit the detective's opinion testimony. Additionally, State v. DiFrisco, 137 N.J. 434, 474 (1994) and State v. Ramseur, 106 N.J.123, 322 (1987) lent guidance to the Appellate Division with regard to reversal of a conviction when the prosecution's closing arguments deprive the defendant of a fair trial. The Appellate Division held it impermissible for the prosecutor to use the defendant's presence at trial to discredit testimony provided by the defendant in summation as "tailored" after presentation of the state's case pursuant to State v. Daniels, 182 N.J. 80 (2004) and felt the impropriety to have raised a strong question regarding whether the defendant's right to a fair trial was upheld. As a result of the likelihood that defendant was deprived of his right to a fair trial the NJ Appellate Division remanded the matter for a new trial. Aggravated assault and 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 aggravated assault, robbery and 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.

No Alternative To Jail For Driving While Suspended For DUI

Anthony Frezza was charged with operating a motor vehicle while suspended for multiple driving under the influence (DUI) (N.J.S.A. 39:4-50) charges pursuant to N.J.S.A. 2C:40-26(b) after being stopped on the Atlantic City Expressway in the early morning hours of February 4, 2012. Pursuant to the statute, the requisite sentence is 180 days in jail without parole with no sentencing discretion afforded to the court. After a trial in State v. Frezza at which the defendant was found guilty, the municipal court judge sentenced Frezza to 180 days in jail without parole with alternatives including house arrest. The State cross-appealed and appeal filed by Frezza challenging the sufficiency of evidence. The NJ Appellate Division relied on State v. Pitcher, 379 N.J. Super. 308, 319 (App. Div. 2005) in holding that Frezza’s motor vehicle record was admissible as prima facie evidence that he was suspended for driving while intoxicated (DWI) at the time he was stopped and admitted to driving while suspended. Frezza was serving a suspension for a second DUI offense and, pursuant to State v. Cuccurullo, 228 N.J. Super. 517, 520-21 (App. Div. 1988), a driver is suspended for DUI when the sentence is imposed, even if the driver is still serving a suspension for an earlier event. In State v. French, 437 N.J. Super. 333, 335-39 (App. Div. 2014), the court clarified that a 180 day jail sentence without parole is required and no sentencing alternatives are permissible. As a result, the NJ Appellate Division reversed the sentence and remanded for sentencing in conformance with the statutory requirements of N.J.S.A. 2C:40-26(b). DWI charges, whether for alcohol or drugs, are very serious charges and can lead to loss of driving privileges up to 10 years as well as incarceration. Additionally, the newly created statute regarding driving while suspended for multiple DUI offenses guarantees a 6 month jail term. If you are facing charges or charges of driving while suspended for DUI it is critical that you obtain experienced defense counsel immediately. For more information about driving while suspended for DUI, DWI, DUID, controlled dangerous substances (CDS) in a motor vehicle, refusal to submit to chemical breath tests, reckless driving or other serious motor vehicle charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

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

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

Juvenile Seeks To Withdraw Manslaughter And Carjacking Pleas

Demitrius Minor, a juvenile offender, was charged with first-degree felony murder (N.J.S.A. 2C:11-3(a)(3)) and first-degree carjacking (N.J.S.A. 2C:15-2(a)(1)-(3))for crimes occurring on different dates and involving different victims in each circumstance. Although only sixteen (16) years of age at the time, Minor waived jurisdiction in the Chancery Division, Family Part and entered a guilty plea to first-degree aggravated manslaughter (N.J.S.A. 2C:11-4(a)(3)) and first-degree carjacking in the Law Division, Criminal Part. The plea agreement called for a thirty (30) year prison term for aggravated manslaughter and a concurrent ten (10) year term for the carjacking charge. Defendant was also subject to a parole disqualifier under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2) with regard to the aggravated manslaughter charge. At sentencing, approximately three (3) months after giving a lengthy and detailed factual basis for the guilty plea previously entered, Minor sought to withdraw his plea of guilty based on an ineffective assistance of counsel claim but the trial judge refused to allow Minor to obtain substitute counsel and sentenced him according to the plea agreement as no formal motion had been filed. In State v Minor, the defendant appealed claiming that the trial judge committed reversible error. The NJ Appellate Division determined that an application for withdrawal of a guilty plea would require application of the factors set forth in State v. Slater, 198 N.J. 145 (2009) which could not reasonably be expected of a defendant without the assistance of counsel. It was apparent on its face to the Appellate Division that, under Hayes, 205 N.J. 522 (2011), it was reversible error to deny Minor’s request for an adjournment. It is long-established that denial of adjournment may lead to reversal when the defendant suffers “manifest wrong or injury” as a result of said denial. State v. Doro, 103 N.J.L. 88, 93 (E. & A. 1926). The court cited Hayes, supra, 205 N.J. at 541-42, with regard to the need to remand for the limited purpose of a plea withdrawal hearing wherein the defendant shall represented by independent counsel. If you are a juvenile charged with acts that if committed by an adult would constitute serious crimes, you need experienced criminal defense counsel to assist you immediately. An experienced criminal defense attorney can guide you through the court proceedings including whether your matter is best resolved in the Family Court or Law Division and what your options are in either event. For more information about murder, juvenile offenses 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.

Handgun Located By Casino Valet Not Suppressed

Phillip King was charged with second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)). King left his car with a casino valet at Trump Plaza and, upon entering the vehicle the valet noticed the center console to be partially open. The valet then attempted to close the console and could not. Upon opening the console to attempt to move the obstruction, the valet saw the obstruction was the butt of a handgun. The valet returned the console lid to its partially opened position and notified local police. Upon arrival, the police found the vehicle’s center console cover to be in the partially opened position and, without first obtaining a search warrant, opened the console to look inside and removed the handgun from the center console. The vehicle had Pennsylvania license plates, King had a valid Pennsylvania driver’s license and a valid Pennsylvania gun carry permit and claimed he was unaware that he could not legally transport the firearm in his vehicle in New Jersey. King sought to suppress the handgun over the State’s argument that warrantless search was valid under the community caretaking exception, the automobile exception and the third-party exception. The court held that the State had ample time to secure a warrant as the vehicle was parked in the casino’s garage and officers present at the scene could insure the vehicle was not moved. The court further held that the officer’s search exceeded the scope of the valet’s private search and therefore the third-party exception to the warrant requirement was invalidated. The State appealed with regard to the third-party intervention exception to the warrant only. The exemption assumes that a private party discovered the item or information and turned it over to police and therefore there was no violation of the defendant’s Fourth Amendment rights. Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048 (1921). The court considered State v. King to be very similar to United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed.2d 85 (1984) wherein a private party initially searched and notified authorities of the discovery then police went further in their search than the private party had. In Jacobsen the Supreme Court held that the defendant had no reasonable expectation of privacy in the cocaine discovered by the mail carrier. The court also reviewed State v. Marshall, 123 N.J. 1 (1991), State v. Minitee, 210 N.J. 307 (2012), State v. Saez, 268 N.J. Super. 250 (Ap. Div. 1993) and State v. Wright, 431 N.J. Super. 558 (App. Div. 2013), where in each case warrantless searches extended after third-party initiation were upheld by New Jersey courts. After considering the areas searched in the above mentioned matters and the expectation of privacy one could reasonably hope to have in a vehicle willingly turned over with keys to a valet, the court found that the officers actions beyond the scope of the valet in State v. King were minimal and therefore upheld the search and reversed the suppression of the handgun. 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 (N.J.S.A. 2C:43-6(c)). 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 weapons related charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

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

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

DUI Step-Down Is Not Limited To One Use Per Driver

The NJ driving under the influence (DUI) statute (N.J.S.A. 39:4-50) includes a provision wherein a “step-down” in sentencing occurs after any ten (10) year period in which an individual charged with a prior DUI receives a lesser level penalty for a subsequent DUI. For example, pursuant to N.J.S.A. 39:4-50(a)(2), if an individual was convicted of their first DUI in 1986 and a second DUI in 1994, they would be sentenced, among other penalties, to a two year loss of driving privileges as a second offender in 1994. However, pursuant to N.J.S.A. 39:4-50(a)(3), if an individual was convicted of their first DUI in 1986 and a second DUI in 1997, more than ten (10) years later, they would be sentenced to, among other penalties, a seven to twelve month loss of driving privileges as a first-offender in 1997. In State v. Revie, the defendant, James Revie was convicted of a fourth driving while intoxicated (DWI) charge in 2011 in Wharton, NJ after an initial DWI in 1981 in Hillsdale, NJ, a second and uncounseled DWI in 1982 in Bogota, NJ, and a third DWI over ten (10) years later in 1994 in Montvale, NJ. Due to the fact that the second DWI was uncounseled and the defendant should have received the benefit of the step-down provision for the ten (10) year lapse between the second and third DWI convictions, the defendant argued that, for the 2011 DUI, he should be sentenced as a second-offender with regard to any term of incarceration. However, the Municipal Court Judge sentenced him as a third-offender refusing to read N.J.S.A. 39:4-50(a)(3) as providing more than one “step-down” benefit to any driver. The NJ Superior Court, Law Division, Morris County affirmed as did the NJ Appellate Division. The NJ Supreme court held that there is no indication that the Legislature intended for a defendant meeting the requirements of the “step-down” provision on more than one occasion to be entitled to the benefits thereof on only one such occasion. In addition to the Legislative intent, included in the NJ Supreme Court’s consideration were also State v. Laurick, 120 N.J. 1, 498 U.S. 967, 111S.Ct. 429, 112 L. Ed. 2d 413, (1990) and State v. Hrycak, 184 N.J. 351 (2005) as they pertained to Revies’ second and uncounseled DUI and State v. Conroy, 397 N.J. Super. 324 (App.Div. 2007) as it pertained to a defendant sentenced with the benefit of Laurick and the “step-down” provision of N.J.S.A. 39:4-50(a)(3). The matter was remanded to the Law Division for re-sentencing as a second-offender. DUI charges, whether for alcohol or drugs, are very serious charges which can lead to incarceration and loss of driving privileges up to ten years. If you are facing charges for DUI it is critical that you obtain experienced defense counsel immediately. For more information about DUI, DUID, controlled dangerous substances (CDS) in a motor vehicle, refusal to submit to chemical breath tests, reckless driving or other serious motor vehicle charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.