Bat Used in Assault Suppressed After Illegal Police Search

Kenneth Barbour was arrested for aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)), resulting from an alleged assault on his neighbor. Upon arriving at the scene, police were told by the bloody victim, that his neighbor used a black baseball bat to strike him in the head following a verbal dispute. Police indicated they used a patrol car loudspeaker to command Barbour to exit his residence as he was thought to have outstanding warrants and possibly weapons in his possession. An individual ultimately exited the residence and was arrested approximately 20 feet from the residence. Police, not having a photo of Barbour and unsure he was the man who exited the residence, entered the residence to conduct a search of the premises for others. The trial court denied Barbour's motion to suppress, and other relief requested, holding that the actions of the arresting officers were legitimate as part of a protective sweep of the residence. Following a jury trial, Barbour was convicted of fourth degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(d)) and sentenced to 2 years probation. In State v. Barbour, the defendant challenged several aspects of the trial court's decision, including the denial of his motion to suppress the bat alleged to have been used as the weapon in the assault. The Fourth Amendment of the United States Constitution and Article I of the New Jersey Constitution guarantee the right to citizens to be free from unreasonable search and seizure unless certain very narrow exceptions apply. State v. Maryland, 167 N.J. 471 (2001). The New Jersey Appellate Division held that a protective sweep must be limited to "areas in a defendant's immediate control." Such a sweep is valid only when there is (1) a legitimate reason for the officers presence in the residence; and (2) officers have a reasonable suspicion that there is a dangerous individual hiding in the area to be swept and that the burden of proving these circumstances existed is on the State. State v. Davila, 203 N.J. 97 (2010). In light of the evidence and testimony presented that the Defendant was outside when arrested and there was no reasonable articulable suspicion that another dangerous individual was inside the residence, the N.J. Appellate Division found the search and seizure to violate the Defendant's right to be free from unreasonable search and seizure and reversed the denial of the motion to suppress. Assault and attempted assault charges are very serious and bear severe consequences including incarceration, the inability to obtain employment and certain licenses, and social stigma associated with such problems. If you are facing assault charges, you should obtain experienced criminal defense counsel immediately to insure your rights are protected. For more information about assault, unlawful possession of a weapon, possession of a weapon for an unlawful purposed 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.

Juvenile's Excited Utterance Admissible Under Hearsay Exception

State of New Jersey In the Interest of A.R. involved a 14 year old juvenile found guilty of touching a 7 year old child, J.C., sexually on a school bus, a crime that would constitute second-degree sexual assault (N.J.S.A. 2C:14-2(b)) if committed by an adult. J.C. was diagnosed with autism and ADHD. Upon exiting the bus, which was returning the children from summer camp, J.C. exclaimed that A.R. had touched him. There were 20 children on the bus and no witnesses to the alleged act. J.C. repeated his statement to a detective days later. The trial judge from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County court found that the exclamation upon exiting the bus and statements during the detective's interview were admissible under the "tender years" exception to the hearsay rule (N.J.R.E. 803(c)(27)). At the bench trial in the, the court found J.C. incompetent to understand the proceedings and offer testimony but did accept J.C.'s testimony based on N.J.R.E. 803(c)(27). On appeal, the N.J. Appellate Division determined that the statements to the detective were testimonial in nature, under Crawford v. Washington, 541 U.S. 36 (2004), and A.R.'s counsel was not able to protect the confrontational rights of the 14 year old through cross-examination due to the incompetence of J.C. The Appellate Division held that the exclamation upon exiting the bus was not testimonial in nature and remanded for reconsideration. If a juvenile is charged with a crime, the disposition of the charges can change his or her future by prohibiting them from entering certain schools, fields of employment and, in the case of Megan's Law offenses, certain residences or neighborhoods. It is critical for any juvenile charged with a criminal offense to seek an experienced juvenile defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, sex-offenses, Megan's Law provisions or other criminal charges in NJ, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sexual Assault Was Apparent To Judge But Sentencing Not As Obvious

Marvin Flores-Gamez was indicted for first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(1)); 2 counts of second-degree sexual assault (N.J.S.A. 2C:14-2(b)); and third-degree endangering the welfare of a child by engaging in sexual conduct with the victim (N.J.S.A. 2C:24-4(a)). In 2011, the Flores-Gamez contacted 12 year old Susan on Facebook, when Flores-Gamez was 19. Susan and Flores-Gamez traded messages on Facebook for some time before he began to mention the idea of having sex with her. In November 2011, Susan agreed to meet Flores-Gamez, with Susan's cousin, Kate, and Kate's boyfriend, Tim, present. The 4 went to Susan's house and the men gave the children juice that tasted like alcohol. Flores-Gamez and Susan ended up alone together in the bedroom and, when Susan resisted his advances, Flores-Gamez removed her clothes and began to have sex with her. When he refused to stop, Susan bit Flores-Gamez on the hand to make him stop. For the next 5 days, Susan and Flores-Gamez exchanges messages on Facebook until Susan's father discovered Susan had missed school and, during the subsequent inquiry, learned what had happened. Susan's father took her to the police station and, during an investigation, Flores-Gamez provided a statement with facts similar to those Susan provided. At trial, the Defendant did not testify. Both Tim and Kate testified that the Defendant and Susan were never alone together and that the Defendant did not sexually assault Susan. A psychologists report was also offered to show that Susan had indicated Tim's mother was also in the apartment and was the one who stopped the sexual assault. Following a trial in the Superior Court of New Jersey, Law Division, Bergen County, Flores-Gamez was found guilty of 2 counts of second-degree sexual assault. Flores-Gamez was sentenced to a concurrent 8 year term for both counts, subject to an 85% parole disqualifier under the No Early Release Act (N.E.R.A.) (N.J.S.A. 2C:43-7.2). In State v. Flores-Gamez, the defendant appealed. The N.J. Appellate Division affirmed the decision of the trial judge except defendant's sentence. The Appellate Division held that the trial judge did not follow proper procedure with regard to sentencing. The judge listed the aggravating and mitigating factors, without making any specific findings in regard thereto, and then meted out the sentence. The judge found aggravating factors one and two; however, the victim's age was an element of second-degree sexual assault and could not be considered. Also, the trial judge failed to give any indication that the mitigating factors raised by the defendant were considered. The Appellate Division remanded for resentencing. 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.

No Right To Own Firearms If Determined A Danger To The Public Health, Safety and Welfare

Firearms purchaser identification cards and purchase permits may be denied in the event of danger to the "public health, safety and welfare" pursuant to N.J.S.A. 2C:58-39(c)(5) of the New Jersey Gun Control Law. In 1998, Z.L. was acquitted of a domestic violence charge. Between 2003 and 2011 the police were called to the residence of Z.L. and his wife on five separate occasions for domestic violence issues. In 2013, Z.L applied for a gun purchase permit and the police chief denied the application in light of the prior history of domestic violence. The matter was tried and a Monmouth County Superior Court Judge determined that the permit should not be granted. On appeal, the N.J. Appellate Division held that Z.L. has demonstrated the propensity to react violently and that the presence of a firearm in such a situation has the potential for great harm and no permit should be issued to him. 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.

Domestic Violence Charge Leads To More After Audio Recording

Kingkamanu Nantambu was arrested for domestic violence when police responded to a 911 call and his girlfriend, Crystal Aikens, reported he had threatened her with a gun. Nantambu reported that Aikens had threatened him with a knife and required medical treatment for multiple cuts. When a search of his apartment revealed a handgun hidden under a bed, he was also charged with weapons offenses. Finally, Aikens reported that Nantambu offered her money in exchange for more favorable testimony and was charged with bribery of a witness (N.J.S.A.2C:28-5(d)) and witness-tampering (N.J.S.A.2C:28-5(a)). Aikens agreed to allow police to record a telephone conversation between herself and Nantambu. After approximately 8 minutes of the conversation took place another call came in which Aikens took then resumed the call with Nantambu. Shortly after the call with Nantambu was resumed, the recording was cut off. By the time detectives reconnected the recording device, the call ended. In State of New Jersey v. Kinkamau Nantambu, 221 N.J. 390 (2015), Nantambu sought to exclude the recording as unreliable. The New Jersey Superior Court judge hearing the case granted the motion to suppress the recording of two conversations between Aikens and Nantambu. The State appealed. State v. Driver, 38 N.J. 255 (1962), State v. Dye, 60 N.J. 518, 531, cert. denied, 409 U.S. 1090, 93 S. Ct. 699, 34 L. Ed. 2d 675 (1972), and State v. Cusmano, 274 N.J. Super. 496, 517 (App. Div. 1994), inform that the omission of a portion of a conversation does not require exclusion of the entire conversation. In Driver, the court established a test for the admissibility of audio recordings which set forth 5 criteria: (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement. The N.J. Appellate Division held that, under precedent, including the test set forth in Driver, the recording was admissible and reversed the decision of the N.J. Superior Court. Domestic violence is a very serious charge in New Jersey and the need to deter would be abusers has resulted in escalating penalties over time. If you are charged with domestic violence or are seeking a final restraining order against an abuser, you will find yourself in the position of proving or disproving the charges. It is 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.

DUI Suspicion Is Not A Reason To Draw Blood Without A Warrant

In 2010 Timothy Adkins was arrested for driving under the influence (DUI)(N.J.S.A. 39:4-50), after the vehicle he was operating struck a utility pole, injuring himself and two passengers. Adkins failed the field sobriety tests administered by police and was ultimately taken to the hospital, where the police obtained a blood sample from Adkins. Adkins blood alcohol level (BAC) was .157 percent, almost twice the legal limit of .08 percent. In Missouri v. McNeely, 569 U.S.___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), the U.S. Supreme Court held that the natural dissipation of alcohol from the blood stream over time does not, on its own, give rise to exigent circumstances such that a warrant may be avoided when the police are seeking a blood sample. Therefore, unless the individual suspected of driving while intoxicated is involved in an accident, a warrant is required. In State v. Adkins, 433 N.J. Super. 479 (App. Div. 2013) a trial judge determined that the blood sample taken from Adkins without a warrant was inadmissible. The New Jersey Appellate Division reversed the ruling based on Schmerber v. California, 384 U.S. 757 (1966) wherein the U.S. Supreme Court ruled that drawing blood from an individual suspected of drunk driving was acceptable. In McNeely, the U.S. Supreme Court established a new standard based on the fact that, through radios, cellular phones and facsimiles, obtaining a warrant is a much simpler and expedient process for police. As a result of the ruling in McNeely, the N.J. Supreme Court, in Adkins, DUIdetermined that the results of the blood sample, withdrawn without a warrant, must be suppressed. If you are facing DUI charges, 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, driving while suspended 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.

In DUI A Stay Of Sentence On Appeal Is Not A Right

Scott Robertson was convicted in municipal court of Driving While Intoxicated (DWI) (N.J.S.A. 39:4-50). Robertson was stopped after police observed him to be driving erratically and he admitted to the consumption of alcohol during the motor vehicle stop. Robertson performed poorly on the field sobriety tests and his blood alcohol content (BAC) registered as .13 on the Alcotest machine. He was also charged with failure to maintain a lane (N.J.S.A. 39:4-88(b)), and reckless driving (N.J.S.A. 39:4-96). At trial, Robertson unsuccessfully challenged the admissibility of the Alcotest results based on the unavailability of repair records and diagnostic tests for the Alcotest machine used for his test. Although Robertson received numerous records, there were service related records within the manufacturer which he could not access to which he believed he was entitled. On appeal, the New Jersey Superior Court affirmed. Once again Robertson appealed, this time to the New Jersey Appellate Division which affirmed the DUI conviction holding that under State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008) there was no basis for excluding the Alcotest results. Of note, on each successive appeal, Robertson sought a stay of the suspension of his driving privileges. He was sentenced to 7 months loss of license in municipal court and a stay of his suspension was granted, with no reasons stated on the record, to allow for a trial de novo in the New Jersey Superior Court, Middlesex County. At the trial de novo of State v. Robertson, the New Jersey Superior Court judge found Robertson guilty based on both the DVR of the psychophysical tests and the Alcotest results. The defendant again sought a stay of his license suspension based on multiple cases pending certification in the Supreme Court with regard to the ability of those accused of DUI to obtain repair and service records relating to specific Alcotest machines and the possibility of a favorable outcome for the Defendant. The State objected to the stay based on several unreported Appellate Division opinions supporting the finding that the records sought by the Defendant need not be provided. The stay was granted and addressed by the Appellate Division as being governed by a three-part test under Crowe v. DeGoia, 90 N.J. 126 (1982) requiring a showing that failure to obtain the stay would subject the defendant to irreparable harm, that the defendant has a reasonable chance of success on appeal, and there is not substantial harm created by granting the stay. In the case of DUI, the potential for harm to the public by an intoxicated driver creates a special circumstance for consideration and the Appellate Division found that stay of a suspension in a DUI case was not a matter of right pending appeal. With regard to the suppression motion, the New Jersey Appellate Division looked to precedent interpreting Chun. In State v. Maricic, 417 N.J. Super. 280, 288 (App. Div. 2010), the Appellate Division held that, although twelve foundational documents were required by Chun, that did not serve to limit additional discovery requests with a reasonable basis. The Appellate Division also reviewed State v. Carrero, 428 N.J. Super. 495, 507 (App. Div. 2012) holding that DWI cases are quasi-criminal and subject to a more limited discovery than criminal matters. Pursuant to R. 3:13-3(b)(1)(C) and 7:7-7(b)(4) the State is obligated to produce documents within the prosecutor’s custody or control but the Appellate Division reasoned that, although the Alcotest manufacturer’s documents were not within the State’s control, the Defendant could have subpoenaed them from the manufacturer had he felt they would prove to exculpate him. Ultimately, the Appellate Division found the argument that the diagnostic tests were material to the defense to be unconvincing. 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 for DUI it is critical that you obtain experienced defense counsel immediately to determine whether you can win your case. For more information about DUI, DWI, DUID, driving while suspended for DUI, 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 DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.