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.

Murder Confession Admissible Under Miranda

Jerome L. Faucette was charged with first-degree felony murder (N.J.S.A. 2C:11-3(a)(3)) and robbery (N.J.S.A. 2C:15-1) after driving a vehicle for Terrence S. Clemmons during Clemmons robbery and shooting of a gas station attendant. Faucette was convicted of first-degree robbery and sentenced to 13 years in prison with an 85% parole disqualifier under the No Early Release Act (N.E.R.A.)(N.J.S.A. 2C:43-7.2. Faucette appealed claiming his statement was not made voluntarily on the grounds that he had invoked his right to counsel. On May 14, 2008, at 7:00 pm, police requested defendant accompany them to the police station for questioning with which he complied. Faucette was read his rights under Miranda v. Arizona, U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) at the police station and spoke with police until approximately 8:00 pm when he asked to leave, however, the police continued questioning Faucette until 2:30 am. Faucette did not invoke his right to counsel. On May 15, 2008, police returned to the defendant's residence at 4:00 pm to return him to the police station where he was again advised of his Miranda rights and arrested. Detectives questioned Ms. Spencer and Mr. Gaddy, Faucette's former girlfriend and friend. Both of these individuals advised police that Faucette had admitted to participating in the robbery planned by the co-defendant, Clemons. Faucette ultimately admitted to participation in the robbery as a driver but denied involvement in the murder or prior knowledge thereof. In State v. Faucette, the judge held that the initial interview, wherein no confession was obtained, violated the defendant's rights under Miranda following the defendant's request to terminate the interview, however, the second interview was not in violation of defendant's rights and the confession provided therein was voluntary. The court granted suppression of all information obtained after 8:03 p.m. during the initial interview but found all remaining statements to be admissible. On appeal, the defendant challenged the voluntariness of his confession based on coercion and violation of his rights under Miranda. The NJ Appellate Division turned to State v. W.B., 205 N.J. 588 (2011) with regard to Miranda requirements when there is a challenge to voluntariness of a confession. Pursuant to State v. Johnson, 42 N.J. 146, 162 (1964), reiterated in State v. Davila, 203 N.J. 97, 109-10 (2010), as long as the findings of the trial judge are detailed and supported by factual and credible evidence the findings below are not to be disturbed. However, the deference accorded in Johnson and Davila are dependent upon the trial court's ability to hear testimony from officers, experts and witnesses and not the mere review of a videotaped confession from which the Appellate Division can also draw independent conclusions. State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2011). The Fifth Amendment grants privilege against self-incrimination and this right is afforded to the states through the Fourteenth Amendment. The Appellate Division looked to State v. Reed, 133 N.J. 237 (1993), with regard to a defendant's right against self-incrimination in New Jersey and to State v. Knight, 183 N.J. 449 (2005) with regard to the upholding of that right through Miranda protections. State v. Galloway, 133 N.J. 631 (1993) was the case looked to by the Appellate Division in determining whether the State or defendant bears the burden of proving voluntariness of a confession and found the burden is borne by the State. State v. Presha, 163 N.J. 304, 313 (2000), dictates that a the "voluntary intelligent statement" of a defendant properly notified of his rights under Miranda is a valid and admissible confession. After reviewing the circumstances in this specific matter, the Appellate Division found that Faucette's second confession was knowingly and voluntarily given with full information and understanding of Miranda warnings and that there was no "taint from the May 14 Miranda violations" in violation of State v. O'Neil, 193 N.J. 148, (2007) or State v. Johnson, 118 N.J. 639 (1990). Further, the Appellate Division affirmed that Faucette did not, at any time during the questioning, invoke his right to counsel. The NJ Appellate Division found Faucette's confession to be voluntary and affirmed the decision of the trial court. 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, robbery, conspiracy, 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.

Juvenile Offender Will Be Treated Differently Under NJ Senate Bill 2003

In a move to promote rehabilitation of juvenile offenders, juveniles may receive additional protection from facing trial as adults if New Jersey Senate Bill 2003 (S2003) is passed. The bill pertains to how juveniles facing criminal offenses may be tried, held before and after trial and the level of representation required in hearings to move juvenile matters to the Criminal Part of the Superior Court. Presently, juveniles age 14 and over may be tried as adults. S2003 would raise the minimum age at which a juvenile could be tried as an adult to 15. S2003 would permit juvenile to be tried as adults only for the most serious offenses including criminal homicide; strict liability for drug induced deaths; first-degree robbery; carjacking; sexual assault; second-degree aggravated assault; kidnapping; aggravated arson; certain gang criminality; a crime committed at a time when the juvenile had previously been adjudicated delinquent or confined to an adult correctional facility; violent, aggressive, and willful crimes against another; unlawful possession of a firearm, destructive device or other prohibited weapon; arson; death by auto if the juvenile was operating the vehicle under the influence of an intoxicating liquor, narcotic, hallucinogenic or habit producing drug (DUI); a violation of N.J.S.2C:35-3, N.J.S.2C:35-4, or N.J.S.2C:35-5; a conspiracy which is a part of a continuing criminal activity and the circumstances of the crimes show the juvenile has knowingly devoted himself to criminal activity as a source of livelihood; an attempt or conspiracy to commit any of certain enumerated acts; theft of an automobile; serious computer criminal activity; distribution of any controlled dangerous substance or controlled substance analog while on any property used for school purposes, or within 1,000 feet of such school property. The State would bear the burden of proving that the nature and circumstances of the charge or the prior record of the juvenile are sufficiently serious that the interests of the public require waiver. Juvenile cases are typically heard in Family Court and, under S2003, they would be entitled to counsel, either private or appointed, during all hearings relating to the transfer of their individual case from the Family Part to the Criminal Part. S2003 would require a prosecutor seeking to move a juvenile matter to the Criminal Part to provide written notice to the Family Part judge setting forth the reasons the transfer is being sought. Additionally, the Family Part judge would be required to undertake their own analysis and then accept or reject the prosecutor’s motion. Juveniles age 14 and over may now be housed with adults but S2003 would prohibit juveniles under 18 from being incarcerated in adult jails or prisons rather than the current limit of 16 years old. At present, juveniles may be placed in solitary confinement for not more than ten days per month. As the concept behind S2003 is rehabilitation first and foremost, solitary confinement of juveniles would be a measure of last resort and heavily restricted. If all other avenues are exhausted and the juvenile remains a threat to facility security or others solitary confinement may be utilized for no more than two consecutive days for juveniles who are 15 years of age, three consecutive days for juveniles ages 16 and 17 and up to a maximum of five days for juveniles age 18 and over. In further accord with the goal of rehabilitation, academic instruction and academic counseling, vocational education, post-secondary educational opportunities, alcohol and narcotics treatment programs, mental health services, medical and dental care, regular contact with the family members, work programs to prepare the juvenile for treatment, re-entry services, and any other services or assistance reasonably related to the rehabilitation of the juvenile shall be provided as appropriate. S2003 is sponsored by Democrats and received no support from the Republican party. The bill passed the Senate and is presently in the Assembly for consideration and revision. If you are a juvenile facing criminal charges your future is at stake and should not be left to chance. Your future and freedom may depend on the outcome of your case making it imperative that you seek experienced defense counsel immediately. For more information about juvenile offenses including drug charges, possession of a controlled dangerous substance (CDS) in a school zone, assault, sex crimes, school issues, breaking and entering, gang related crimes, burglary or other serious matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Proof Of DUI Alone Is Sufficient To Convict For Aggravated Manslaughter

Following a fatal motor vehicle accident while driving under the influence (DUI) (N.J.S.A. 39:4-50), William T. Liepe was charged with first-degree aggravated manslaughter (N.J.S.A. 2C:11-4(a)(1)); second-degree vehicular homicide (N.J.S.A. 2C:11-5); second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1); third-degree assault by auto (N.J.S.A. 2C:12-1(c)(2)); and fourth-degree assault by auto (N.J.S.A. 2C:12-1(c)(2). Max Guzman and 2 of his children were in a Honda Civic waiting to turn left at 1:00 p.m. on a Sunday afternoon in April, 2011. Guzman’s Honda was rear-ended by Liepe’s Ford Explorer and spun into another lane of travel where it was hit by a passing motorist, Rosa Vazquez, driving a Cadillac Escalade. Guzman’s younger child was killed, Guzman and his other child survived but suffered substantial injury. Vazquez, her mother and 2 children did not sustain life threatening injuries. Police found an open container of alcohol in Leipe’s vehicle and he admitted to the consumption of several beers earlier in the day. A sample of Leipe’s blood was taken and his blood alcohol content (BAC) was .192 typically indicates substantial impairment of one’s driving ability. Testimony was presented at trial that Liepe admitted to never having noticed the Honda in his path waiting to turn. Reconstruction of the accident revealed evidence relating to stopping distance and opportunity to avoid an accident. Ultimately, the trial court granted Liepe’s motion to dismiss aggravated manslaughter as a charge upon concluding that the State must prove more than intoxication. In State v. Liepe, the NJ Appellate Division considered State v. Radziwil, 235 N.J. Super. 557 (App. Div. 1989) with regard to what inferences were permitted from extraneous evidence with regard to extreme indifference to human life. Radziwil also set forth that, in matters of driving under the influence, evidence of the exact degree of intoxication is not required to prove aggravated recklessness. In State v. Kromphold, 162 N.J. 345 (2000), the court considered recklessness based on intoxication and set forth the premise that, although one could be convicted of driving under the influence (N.J.S.A. 39:4-50) it is not conclusive evidence of reckless indifference to human life. The Appellate Division distinguished aggravated manslaughter from reckless manslaughter (N.J.S.A. 2C:2-2(b)(3)) in State v. Curtis, 195 N.J. Super. (App. Div. 1984). Recklessness is shown by conscious disregard of “substantial and unjustifiable risk” of death as a result of the conduct in question. The level of disregard required is a “gross deviation” from that of a reasonable person. Aggravated manslaughter includes the heightened requirement that the situation be “under circumstances manifesting extreme indifference to human life” wherein risk becomes elevated from a possibility to a probability. The Appellate Division ultimately determined that evidence of intoxication, without more, shall survive a motion to dismiss the charge of aggravated manslaughter. If you are facing driving while intoxicated (DWI) or other criminal charges stemming from a driving under the influence or driving under the influence of drugs (DUID) charge, you should obtain experienced defense counsel immediately to protect yourself from loss of rights and liberties. For more information about DUI/DWI, assault by auto, aggravated assault or other serious motor vehicle charges visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Oral Argument Is Favored in Post-Conviction Relief Petitions

Isaiah Kinney was charged with first-degree conspiracy to commit murder (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3); second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)); first-degree attempted murder (N.J.S.A. 2C:11-3); fourth-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(d)); and third-degree possession of a weapon for an unlawful purpose and convicted of second-degree aggravated assault and second-degree conspiracy to commit aggravated assault (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:12-1(b)(1)) after a trial in the Superior Court of New Jersey, Law Division, Essex County. Kinney was sentenced to a discretionary extended 20 year period of incarceration with an 85% parole ineligibility period under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2). Kinney and Jones severely beat Floyd Simmons at a residence on Prospect Street in East Orange. After leaving the residence, Jones committed a minor driving infraction and crashed while fleeing an East Orange Police officer who noticed that, although Jones appeared not to be injured from the crash, her pants were covered in blood. Prior to Jones being chased by the officer, Kinney had exited the vehicle at a residence on Washington Terrace. Based on statements made by Jones to police, officers proceeded to the Washington Terrace residence to arrest Kinney. While at the residence without a warrant, officers discovered bloodstained clothing belonging to Kinney. At the trial level, Kinney filed a motion to suppress the evidence based on the officers’ illegal search and seizure but the suppression motion was denied. In State v. Isaiah Kinney, the Defendant appealed unsuccessfully then sought post-conviction relief (PCR) based on ineffective assistance of assistance of counsel. The record on the Appellate level was noticeably devoid of any reference to the illegal search and seizure. The NJ Appellate Division found that oral argument in a post-conviction relief petition wherein the defendant exercises a last opportunity to raise reliability issues is deserving of oral argument although the determination of whether oral argument will be heard rests within the discretion of the PCR court. State v. Mayron, 344 N.J. Super. 382, 386 (App. Div. 2001). In State v. Parker, 212 N.J. 269, 282 (2012), the N.J. Supreme Court reinforced the factors set forth in Mayron and included that PCR judges should provide a statement of reasons for denying oral argument. The Appellate Division hearing the PCR matter determined that oral argument could have resolved uncertainty with regard to the absence of pursuit of the suppression motion but the PCR judge incorrectly held that, under State v. Moore, 273 N.J. Super. 118, 126 (App. Div. 1994), the claim of ineffective assistance of counsel with regard to the suppression motion could only be raised in Kinney’s petition to the Supreme Court. The Appellate Division reasoned that, as there is no right to review by the Supreme Court, the PCR judge’s ruling on this matter deprived the defendant of his right to a determination on the issue. It was further determined that the lack of any record established by oral argument pertaining to the suppression motion rendered them unable to give adequate review to the PCR petition and the Appellate Division remanded the matter with direction that the matters of the suppression motion and ineffective assistance of counsel be reviewed. If you are faced with aggravated assault charges, you are facing up to 10 years in prison with an 85% parole ineligibility period under NERA. Even simple assault charges can result in incarceration and should not be taken lightly by you as they will certainly not be taken lightly by the court. If you are charged with assault you should obtain experienced defense counsel immediately. For more information about assault, aggravated assault, conspiracy, murder, unlawful possession of a weapon 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.

A1368 May Overhaul DUI Punishment In NJ

A1368 is a NJ bill, proposed by the Assembly, which could revise the NJ drunk driving statute, N.J.S.A 39:4-50. The bill was approved by the Assembly and Senate and currently under revision pursuant to comments by Governor Chris Christie. If accepted the new statute would permit those convicted of driving under the influence (DUI) to avoid long-term loss of driving privileges by having an ignition interlock device installed in their vehicles. First-offenders with a blood alcohol level (BAC) between .08 and .10% will be required to have an ignition interlock device installed for 3 months and those with .10 to .15% BAC readings would require 7 to 12 months with an ignition device. First-offenders with a .15% BAC or higher would lose their driving privileges for 7 to 12 months but, after 90 days, could make application to the court for an ignition interlock device. In any case, if the court determined there were too many aggravating factors including “circumstances of the offender’s conduct”, prior driving record, how long the offender has been licensed, or indicators of a substantial risk of re-offending, the current method of license suspension for a specified period between 3 and 12 months rather than ignition interlock device installation would be applicable. In the case of a first-offender with a BAC of .10 to .15%, if they do not own, lease or principally operate a vehicle and no ignition interlock may be installed, their driving privileges will simply be forfeited for 7 to 12 months. First-offenders with BAC levels of .15% or greater who do not own, lease or principally operate a vehicle will lose their driving privileges for 7 to 12 months for DUI and a consecutive 7 to 12 months making their suspension period as long as they would have been required to maintain an ignition interlock device on their vehicle. For a second driving while intoxicated (DWI) charge, the suspension would be for a period of 2 to 4 years rather than the current 2 year period. Additionally, an interlock device would be required on the person’s vehicle for the entire suspension period as well as thereafter. For a third or subsequent DUI, suspension would increase from the current 10 year period to a period of 10 to 20 years. Those convicted of refusal to provide a breath sample (N.J.S.A. 39:4-50.2) in the case of second and subsequent events will also face these same suspension periods and interlock device requirements. This bill forgives first-offenders and provides them with opportunity to maintain their livelihood while preventing them from harming others through future instances of driving while intoxicated. Additionally, it is designed to send a strong message to drivers that re-offenders will be punished severely by long-term suspensions, additional expense of an ignition interlock device for an extended term, substantial fines and jail time. If passed, this bill will substantially alter the futures of those convicted of DUI. If you are charged with DUI, you need experienced defense counsel to protect your rights. For more information about DWI, refusal to submit to breath tests, driving while suspended for DUI, driving under the influence of drugs (DUID), controlled dangerous substance (CDS) and other serious driving charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Handgun Discovered In Search Will Not Be Suppressed

James J. Scarborough pled guilty to second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)) after police found a handgun under his seat in a vehicle during an investigatory search based on the odor of burnt marijuana coming from the vehicle's interior. He was sentenced to 5 years incarceration, subject to a 3 year period of parole ineligibility under the Graves Act (N.J.S.A. 2C:43-6c). Police received an anonymous call about a vehicle parked in the rear lot of a closed facility and, upon responding, discovered 2 males in the vehicle involved in what the officer suspected to be drug activity. Upon encountering the driver the officer perceived an odor of burnt marijuana. Ultimately, the driver signed a consent to search form and a handgun was discovered under the passenger seat where Scarborough was sitting along with a magazine and ammunition between the passenger seat and door. Scarborough told police he found the gun in the woods earlier in the day and did not know what to do with it. Scarborough filed a motion to suppress the evidence and his statement, both of which were denied and he then entered into the guilty plea. In State v. Scarborough the defendant appealed and the NJ Appellate Division upheld the denial of the suppression motion finding that a field inquiry under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968) was permissible based on the anonymous call regarding the vehicle. The odor of burnt marijuana then gave probable cause to believe a crime was committed under State v. Vanderveer, 285 N.J. Super. 475 (App. Div. 1995) and State v. Nishina, 175 N.J. 502 (2003). Once the officer had probable cause to believe criminal activity was afoot he was justified, under State v. Carty, 170 N.J. 632 (2002), in seeking consent to search the vehicle. Finally the NJ Appellate Division found no abuse of discretion by the trial judge in determining the Scarborough's statement was not coerced. The matter was, however, remanded as to sentencing factors only. Second-degree unlawful possession of a handgun in NJ carries up to 10 years in prison with a mandatory period of parole ineligibility under the Graves Act. If you are charged with a weapons offense you need experienced criminal defense counsel. For more information about weapons possession, possession of a weapon without a permit, use or possession of a weapon in the commission of a crime, illegal weapons or other weapon related charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.