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.

Motion To Suppress Handgun Denied

James Legette was indicted for second-degree unlawful possession of a handgun without a permit (N.J.S.A. 2C:39-5b) and second-degree possession of a weapon by a convicted person (N.J.S.A. 2C: 39-7). Legette, once in police custody entered his residence, with officers, and attempted to remove a handgun from his own person to avoid police detecting the gun in any subsequent search of his person. State v. Legette began when police responded to a noise complaint and noted the defendant coming from a building smelling of burnt marijuana and stopped him for investigatory purposes. The defendant claimed the need to enter his apartment to obtain his identification and the officer agreed and accompanied him. While walking through the premises toward the defendant's apartment, the office noticed what appeared to be a gun in the pocket of the defendant's sweatshirt. Once inside his apartment, the defendant produced his identification and removed his sweatshirt while the officer was radioing in the defendant's information. The defendant agreed to accompany the officer back outside with the officer carrying the sweatshirt defendant had removed as evidence. Once outside, a search of the sweatshirt by the officer's K-9 obviated the handgun in the pocket of the sweatshirt and the defendant was placed under arrest. In an ensuing motion to suppress the handgun, the NJ Superior Court trial judge held that James Legette was validly accompanied into his residence by police when sought to enter his own residence for the stated purpose of obtaining his identification. On appeal, the NJ Appellate Division reviewed State v. Walker, 213 N.J. 281 (2013) giving the officer the right to enter the common hallway of the building as he was called to the scene by citizens to investigate a noise complaint. Also under Walker, the odor of burnt marijuana emanating from the door the defendant opened gave the officer probable cause to believe contraband may be present. State v. Lamb, 218 N.J. 300, 314 (2014) which read the fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution to guarantee individuals the right of freedom from unreasonable search and seizure in their homes. However, under State v. Bruzzese, 94 N.J. 210, 234 (1983) when an individual under arrest chooses to enter their residence to obtain an item, it is both permissible and reasonable for officers to accompany them into the residence. The Appellate Division affirmed the decision of the trial judge. If you are facing charges stemming from illegal possession of a handgun, BB gun, paintball gun or other weapon it is critical you not undertake these matters without experienced counsel. For more information about unlawful possession of a weapon, illegal weapons, possession of a weapon for unlawful purposes or other serious weapons offenses visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Thanksgiving Blessings

Happy Thanksgiving from the Darling Law Firm to you all. We invite you all to remember that the origins of Thanksgiving are to thank God for blessings including military victories or the end of drought and famine. We would like to offer our thanks to the members of the military who put their lives on the line to keep us safe, to the police and firefighters who will not be home with their families today, to the doctors and nurses spending their day tending to the ill and infirm and those collecting, cooking and delivering food for those in need. Happy Thanksgiving to all!

Restraining Order Issued Based On E-Mail To Employer

J.D. v. C.C. was an appeal of a Final Restraining Order (FRO) pursuant to the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 to 35) granted by the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County upon the finding that C.C. committed harassment (N.J.S.A. 2C:33-4(a)) against J.D. by sending e-mails to his employer alleging, among other things, that he drove his company vehicle while under the influence (N.J.S.A. 39:4-50). After a 2 year relationship, J.D. proposed marriage to C.C. who rejected him and J.D. elected to terminate their relationship. Thereafter, C.C. began to appear at J.D.'s residence at inopportune times and run into him as he went about his business. C.C. also sent text messages to J.D. indicating that she intended would cause trouble for him and intended to contact his employer. C.C. did send the e-mail and J.D. sought a restraining order. The trial judge issued the Final Restraining Order upon finding that, although no physical assault occurred, the actions of C.C. constituted harassment under N.J.S.A. 2C:33-4(a) and was the behavior that the Prevention of Domestic Violence Act was designed to prevent. Pursuant to State v. Hoffman, 149 N.J. 564 (1997), the elements of harassment include (1) the defendant making or causing to be made a communication; (2) with the purposes to harass another; and (3) in a manner likely to cause annoyance or alarm to the intended recipient. On appeal, the N.J. Appellate Division found that the e-mail to J.D.'s employer could be designed for no other purpose than to harass J.D. The Appellate Division further held that the need to prevent further abuse, under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), was a factor in this matter and affirmed the decision of the court below. If you are charged with domestic violence or seeking a final restraining order against an abuser, there are specific burdens of proof for both parties in proving or disproving the charges making it critical that you obtain experienced criminal defense counsel to represent you in such matters. For more information regarding domestic violence, restraining orders, assault, battery and other criminal law issues in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Cyber-Harassment Laws Punish Those Using Internet For Personal Grudges

In spite of numerous educational efforts targeted to both juveniles and adults, the crime of cyber-harassment continues to be a growing issue due to the perceived degree of anonymity by those perpetrating such crimes. Cyber-harassment (N.J.S.A. 2:33-4.1) is communication with the purpose to harass another by employing a physical threat of bodily injury or the conveyance of lewd, indecent or obscene material with the purpose of causing emotional harm to the person or persons portrayed in said material. Actual harm need not be caused by the acts as long as the acts are undertaken with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm. Cyber-harassment charges are substantially more serious than standard harassment charges under N.J.S.A. 2C:33-4. While standard harassment charges are disorderly persons offenses, cyber-harassment charges under N.J.S.A. 2C:33-4.1 are felony charges which begin at a fourth-degree level and increase in degree if aggravating circumstances are present. Due to the serious consequences, ranging from minimal damage to a person's reputation to suicide in some extreme cases, New Jersey and other states have taken an increasingly harsh stance against those accused of perpetrating or conspiring (N.J.S.A. 2C:5-2 and 2C:33-4.1) to perpetrate such crimes. The federal government has also enacted 18 U.S.C. Section 2261A, applicable to those intending to threaten or harm, physically or emotionally, those in other states by employment of the internet. If you are charged with cyber-harassment, or conspiracy to commit cyber-harassment, you should consult an experienced criminal defense attorney immediately. For more information about cyber-harassment, harassment or other serious criminal charges in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Gun Permit Bill Veto By Governor Christie Is Overridden

Governor Chris Christie's veto of a bill addressing gun permits in New Jersey, S-2360, was overridden by the NJ Senate. The bill would require notification to the courts when an individual sought to have mental health records expunged for the purpose of obtaining a firearms purchaser identification card. Christie called the bill a 'half-measure' which failed to address mental health issues and gun violence comprehensively. Under S-2360, individuals would have to notify New Jersey State Police, their county prosecutor and local police department when seeking expungement of their mental health records for the purpose of obtaining a gun permit. Presently, those with mental health histories are unable to obtain a gun permit under most circumstances. While proponents of the bill believe it will close loopholes which currently allow those with a history of mental illness to purchase guns legally, Christie believes the public would be better served by requiring those previously mandated to mental health treatment to prove they had been successfully treated and in order to obtain a gun permit. For more information about gun laws in New Jersey including obtaining a gun permit, possession of illegal weapons, unlawful possession of a weapon, regulations on BB guns and paintball guns and other weapons offenses visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Distracted Driving In NJ

Although most thing of the New Jersey Cell Phone law (N.J.S.A. 39:4-97.3) when thinking of distracted driving in New Jersey. Although texting and driving is a frequent cause of serious motor vehicle accidents, there are other classifications of "distracted driving" which can lead to police pulling you over and issuing you a summons resulting in $200-$400 plus court costs for a first offense, $400-600 plus court costs for a second offense and $600-800, 3 points and up to 90 day loss of license for a third or subsequent offense. In addition to texting or talking on a cell phone, programming or using an electronic device to find your destination can also lead to a summons. Although many see people applying make-up or shaving while driving and shaken our heads in disbelief, routine activities many are guilty of including eating or drinking, adjusting your radio, looking at a map, and even talking to your passengers can be reasons for police to stop you and issue a summons. With newly relaxed search warrant rules established in State v. Witt, (A-9-14)(074468), 435 N.J. Super. 608, 610-11 (App. Div. 2014), 219 N.J. 624 (2014), this can ultimately lead to a search of your vehicle, arrest and other serious charges. If you are charged with distracted driving, you should consult an experienced traffic attorney immediately. For more information about using a cell phone while driving, warrantless vehicle searches, distracted driving and other motor vehicle charges visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.