Drug Possession Charges In Superior Court Barred By Same Evidence Test

During an undercover drug operation, Rodney Miles was charged with possession of a controlled dangerous substance (CDS) with intent to distribute within 1,000 feet of school property (N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5b(12)) as well as a petty disorderly persons offense of possession of under 50 grams of marijuana (N.J.S.A. 2C:35-10a). While lodged in the Camden County Jail, following indictment, the defendant appeared pro se, waiving his right to counsel, via video conference from the county jail and entered into a guilty plea for the disorderly persons offense of possession of under 50 grams of marijuana after it was downgraded to the offense of loitering to possess marijuana (N.J.S.A. 2C:33-2(b)(1)). During the colloquy during which the plea was entered, Miles attempted to obtain clarification with regard to the specific matter on which he was appearing, and whether charges would remain in the Superior Court following the plea. It was very apparent, from the responses offered by the judge, that the municipal court judge did not understand the questions asked by the defendant regarding his remaining charges. Thereafter, In State v. Miles, Miles sought dismissal of the charges pending in the Superior Court of New Jersey, Law Division, Camden County based on double jeopardy as he had entered a guilty plea to charges stemming from the same event. In State v. Salter, 425 N.J. Super. 504 (App. Div. 2012), the court interpreted the 5th Amendment of the United States Constitution, as well as Article I, 11 of the New Jersey Constitution as protecting against a second prosecution following acquittal or conviction and multiple punishments for a single offense or set of events. In State v. Dively, 92 N.J. 573 (1982), the court held the Constitutional protections to be applicable in the municipal court. Although the court held that fundamental fairness pursuant to the defendant's argument grounded on State v. Yoskowitz, 116 N.J. 679 (1989) was not applicable, any subsequent prosecution in the Superior Court was barred under the same evidence test set forth in State v. Salter. The Court held that the municipal court plea resolved all charges stemming from the defendant's arrest. Drug charges can destroy your future and, if you have prior drug charges, you are subject to harsher sentences each time. If you are facing charges for drug possession or distribution you should consult an experienced criminal defense attorney immediately. For more information about controlled dangerous substances (CDS), distribution, possession, under the influence, paraphernalia or CDS in a motor vehicle visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Expungement Petition And Effect Of Other Crimes

In the Matter of DiGregorio involved a petitioner who sought the expungement from his record of the disorderly persons offense of lewdness and his petition was denied. On appeal, the NJ Appellate Division applied the statute relating to expungement of disorderly and petty disorderly offenses, N.J.S.A. 2C:52-3 to the facts in the instant matter. N.J.S.A. 2C:52-3 reads as follows: Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition… praying that such conviction and all records and information pertaining thereto be expunged. The petitioner properly waited the requisite 5 year period following conviction, payment of his fines and completion of probation in order to seek expungement of the disorderly persons offense. However, the petitioner was disqualified from meeting the expungement criteria as a result of having had two subsequent criminal convictions, one in 2008 and another in 2013. The N.J. Appellate Division affirmed the trial court's denial of the petition. A criminal record can affect your ability to obtain certain jobs, get into certain schools of your choice, obtain housing and have other serious consequences including a negative social stigma. Expungement offers a second chance at a clean record. New Jersey legislators have recently taken steps to make expungement more available in an effort to prevent recidivist criminal activity. Although expungement is available, it should not be taken as a given. If you or your child are seeking an expungement, you should consult experienced criminal defense counsel in order to ensure you qualify and that the crime on your record is expungeable. For more information about expungement, disorderly persons offenses or other criminal matters, 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.

The Future of DUI Testing In NJ

Those arrested for driving under the influence (DUI), N.J.S.A. 39:4-50, are most often exonerated or convicted based on the results of chemical breath testing. The Alcotest machine is presently used to determine whether individuals were driving under the influence by using chemical testing to determine their blood alcohol content (BAC) exceeds the legal limit in New Jersey. The machine has been the subject of multiple challenges, the most well-known being State v. Chun, 195 N.J. 54 (2009),and the NJ Attorney General's Office indicated to the NJ Supreme Court that the machine's use would be discontinued by the end of 2016 in light of the machine's manufacturer, Draeger Safety, announcing they would no longer support the machine. Over the years since the Alcotest 7110 was introduced in NJ in 2001, the software has become outdated and the scientific reliability has come into question. Now, as the sun is setting on the Attorney General's time to find a suitable replacement, pay for another company to service the Alcotest machine or for the state to begin serving the machine in-house, those subject to testing for driving while intoxicated, especially those found to be just over the legal limit, are left with the fact that although they may be convicted based on results that have a reasonable probability of being inaccurate, the Attorney General's Office has a window of opportunity wherein this probability is allowed to persist. Additionally, as of this date, no suitable replacement has been indicated by the Office of the Attorney General. If you are facing charges of DUI, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DWI, refusal to submit to chemical breath testing, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Refusal to Submit to DUI Breath Testing Receives Step-Down Sentence

Thomas Taylor was charged with driving under the influence (DUI)(N.J.S.A. 39:5-50) and pled guilty to refusal to submit to a breath test (N.J.S.A. 39:4-50.2). Taylor had been convicted of two prior driving while intoxicated charges, both of which occurred over ten years prior to the event in question. The municipal court judge sentenced Taylor as a third offender to a 10 year suspension and a $1000 fine. The defendant appealed. In State v. Taylor, Taylor used the misplaced argument that, pursuant to State v. Ciancaglini, 204 N.J. 597 (2011), which addressed the impact of prior refusal convictions to enhance subsequent DUI penalties. However, In re Bergwall, 85 N.J. 382 (1981), reaffirmed in State v. Frye, 217 N.J. 566 (2014), held that a prior driving while intoxicated conviction may be used in enhancing a sentence for a subsequent refusal conviction. Designed as punishment for driving under the influence, the penalties for refusal mirror those for DUI in that they increase with each subsequent offense. The statutes differ in that the DWI statute calls for a "step-down" in sentencing for each 10-year period in which a driver goes without a conviction for DUI, but the refusal statute does not include such a provision. This means that an individual convicted of DUI in 1990 who is convicted of a second DUI in 2001 would be again sentenced as a first offender in 2001. Likewise, a third DWI conviction occurring 10 or more years after a second conviction would subject the driver to sentencing as a second offender under the DUI statute, pursuant to State v. Revie, 220 N.J. 126 (2014). Taylor argued that his refusal should be sentenced under the terms of a second offender, as more than 10 years had elapsed since his prior offense. In State v. Fielding, 290 N.J. Super 191 (App. Div. 1996) the court addressed the matter of applying step-down sentencing to refusal conviction and determined that it was appropriate under the principal of fundamental fairness. After review, the matter was remanded for resentencing as a second offense including a significantly lower 2 year suspension and $500 fine. If you are facing charges of DUI or refusal, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about refusal, DUI, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Attempted Murder Reduced To Aggravated Assault For Plea

Richard Spellman was indicted on two counts of attempted murder (N.J.S.A. 2C:5-1 and 2C:11-3); two counts of first-degree robbery (N.J.S.A. 2C:15-1); two counts of second-degree possession of a weapon (N.J.S.A. 2C:39-4a); two counts of third-degree unlawful possession of a firearm (N.J.S.A. 2C:39-5b); and second-degree certain persons not to have weapons (N.J.S.A. 2C:39-7). Spellman confessed and his motion to suppress the confession was denied. He ultimately pled guilty, in the Superior Court of New Jersey, Law Division, Somerset County, to all charges after the first-degree attempted murder charges were amended to second degree aggravated assault (N.J.S.A. 2C:12-1b(1)). Spellman was sentenced to concurrent 17 year terms subject to an 85 percent period of parole disqualification under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2); two 10 year terms and two 5 year terms; and restitution to a victim with a 5 year period of parole supervision to follow his release. The charges stemmed from two incidents. First, while on parole for a prior aggravated assault, Spellman entered a convenience store, demanded money and then shot the clerk in the stomach after he was given the money. In the second incident, Spellman shot a man in the parking lot of a restaurant. Upon arrival at the scene, police found a gun in the parking lot and Spellman staring at them out the window of a nearby store. When officers spoke to Spellman, he indicated he was fighting with the man he shot. Officers searched Spellman and found a bullet on his person. At the police station, officers found another bullet on Spellman's person and, prior to questioning of any kind, Spellman said "I shot the attendant at the [convenience store]." Spellman was read his Miranda rights, waived his right to counsel and quickly confessed to shooting both individuals. In State v. Spellman, the NJ Appellate Division upheld the trial court judge's decision that the defendant's confessions were voluntary in spite of the defendant's challenge to the voluntariness based on mental capacity which was not raised at trial and therefore not preserved for appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229 (1973). The NJ Appellate Division looked to State v. Smith, 307 N.J. Super. 1 (App. Div. 1997), in holding that mental illness itself, if present, does not invalidate a confession. The record below satisfied the Appellate Division that the trial judge fully reviewed the confession and found no coercion or force to have been used. With regard to sentencing, the NJ Appellate Division did find errors with the trial judge's failure to properly weigh the aggravating and mitigating sentencing factors of N.J.S.A. 2C:44-1 and explain his or her reasoning fully on the record. State v. Fuentes, 217 N.J. 57 (2014). The Appellate Division determined that he trial judge's imposition of concurrent 17 year sentences exceeded the statutory range of 5 to 10 years set forth in N.J.S.A. 2C:43-6a(2). Finally, the Appellate Division and the State agreed that the trial judge failed to make adequate findings, pursuant to N.J.S.A. 2C:44-2b(2), as to whether the defendant was able to pay the restitution ordered. The matter was remanded for resentencing. 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 DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Distribution Conviction Reversed For Detective's Improper Testimony

Brian Firman was charged with third-degree possession of cocaine (N.J.S.A. 2C:35-10(a)(1)); third-degree possession with intent to distribute (N.J.S.A. 2C:35-5(a)(1)) and 5(b)(3)); third-degree distribution (N.J.S.A. 2C:35-5(a) and 5(b)(3)); and third-degree distribution of cocaine within 1000 feet of a school zone (N.J.S.A. 2C:35-7). The charges stemmed from a detectives observation of the defendant and 2 other men in what he believed to be a hand to hand drug transaction which, when he approached to speak to them, was terminated abruptly and one of the men was observed to throw something on the ground which proved to be crack cocaine. During the pat-down search that followed, there paraphernalia was located on the persons of the other 2 co-defendants but nothing in the report reflected possession on the part of Firman. At trial, Firman was convicted by a jury and sentenced to 6 years in prison. In State v. Firman, the defendant appealed on the basis that the detective, McDonald, a non-expert, offered testimony exceeding the level permitted from a fact witness through his ample opinions. The defendant failed to object at trial, leaving the NJ Appellate Division to review the matter under the plain error standard of State v. Maloney, 216 N.J. 91 (2013). Under the plain error standard, the Appellate Division would reverse in the event that the testimony of McDonald which crossed the line into expert testimony, which he was not qualified to offer, could have led the jury to a different result than it would have reached without the inappropriate testimony. State v. Atwater, 400 N.J. Super. 319 (App. Div. 2008). The N.J. Appellate Division determined that without the impermissible testimony of the detective, the jury could have reached a different result and that the guilty verdict must be reversed with the matter remanded for a new trial. If you are facing charges for drug distribution or possession, there are multiple components which may affect the ultimate outcome. Drug distribution charges are met with harsh penalties due to the public interest in deterrence and it is critical that you obtain experienced criminal defense counsel to protect you against the charges and penalties. For more information regarding drug distribution, possession and possession with intent to distribute visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.