New Jersey Criminal Lawyers Blog

The summer is nearing at the New Jersey shore in Ocean and Monmouth Counties and the laws regarding pedestrian safety have gotten tougher. Drivers and pedestrians should be more careful when visiting the towns of Belmar, Ocean Grove, Point Pleasant Beach, Mantoloking, Seaside Park, Seaside Heights, and the towns of Long Beach Island.

As of April 1, 2010, drivers must come to a complete stop and remain stopped for a pedestrian crossing a roadway within a marked crosswalk or unmarked crosswalk when the pedestrian is upon, or within one lane of, the halfway of the road upon which the vehicle is traveling or onto which it is turning. New Jersey Statute 39:4-32 and New Jersey State 39:4-36.

The previously law only required drivers to yield to pedestrians in crosswalks. Now the drivers must stop and remained stopped on, or within a lane of, the half of the roadway on which the vehicle is traveling.

New Jersey Statute 39:4-36 has also changed regarding the penalties. A fine shall be imposed in the municipal court of $200.00, previously the fine was $100. Additionally, the driver will be assessed two (2) points on their driver's license for failing to stop for a pedestrian. See N.J.A.C. 13:19-10.1. The Municipal Court Judge also has discretion to order community service up to 15 days. If the violation results in serious injury to the pedestrian, the fine could be up to $500.00, up to 25 days in jail or a license suspension up to six (6) months, or both.

The new law also has a provision that a collision between a vehicle and a pedestrian within a marked crosswalk, or at an unmarked crosswalk at an intersection, shall be a permissive inference that the driver did not exercise due care for the safety of the pedestrian. This provision could have a tremendous impact on personal injury lawsuits involving pedestrians injured in motor vehicle accidents. It will be interesting to see if this part of the law is challenged as it relates to New Jersey Court Rule 7:6-2(a)(1), allowing a defendant to plead guilty with a reservation that the guilty plea will be non-evidential in any civil proceedings (commonly known as "a civil reservation").

The law also imposes a duty on pedestrians to stay at the curb or place of safety and not to walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield or stop. When a pedestrian is not in a marked crosswalk or not within an unmarked crosswalk at an intersection they should yield the right-of-way to all vehicles upon the roadway. Pedestrians could also be fined up to $200.00. New Jersey Statute 39:4-36.

This law is of particular importance to drivers that will be traveling down to the New Jersey shore for the summer where there are numerous marked crosswalks and pedestrians making their way to the boardwalks, beaches and bars. Pedestrians should also take care to cross at crosswalks. Receiving a fine of $200.00 for violating these laws could make for an expensive day of sun and fun at the New Jersey shore.

Sources: Asbury Park Press (app.com) Associated Press, March 31, 2010.
New Jersey Statute 39:4-32
New Jersey Statute 39:4-36
New Jersey Administrative Code 13:19-10.1
New Jersey Court Rule 7:6-2(a)(1)

On March 15, 2010, the Superior Court of New Jersey, Appellate Division, decided the case of State v. Brian McGacken, Docket No. A-4527-08T4. The Defendant, Brian McGacken, appealed from the Superior Court of New Jersey, Law Division, Monmouth County, the trial judge's decision denying his motion to suppress evidence that permitted a warrantless entry and search of his home based on the emergency aid exception to the warrant requirement.

The facts of the case involved the State Police knocking on the defendant's door in Farmingdale, Monmouth County to investigate the report of loud screaming from an anonymous 911 call. The defendant opened the door in his bathrobe and his girlfriend later appeared in only a towel to explain that the screaming occurred during loud sex. The State Trooper followed the defendant upstairs, smelled the odor of raw marijuana, and saw in plain view in the defendant's bedroom a number of growing marijuana plants. The defendant later consented to a search of his house where more marijuana, drug equipment, and paraphernalia was found. The defendant's motion to suppress was denied by the trial court, he pleaded guilty to a first-degree charge of maintaining a facility for the production of a controlled dangerous substance in violation of N.J.S.A. 2C:35-4, and was sentenced to ten years in prison with 39 months to be served without parole.

The defendant's argument on appeal is the proofs necessary to satisfy the emergency aid exception to the warrant requirement. In State v. Frankel, 179 N.J. 586 (2004), the New Jersey Supreme Court formulated a three-prong test in order to permit the police entry into a home without a warrant under the emergency aid exception: (1) the law enforcement officer must have an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or prevent serious injury; (2) his primary motivation for entry into the home must be to render assistance, not to find and seize evidence; and (3) there must be a reasonable nexus between the emergency and the area or places to be searched.

In this case, the defendant argued that the State Troopers lacked an objectively reasonable basis to believe anyone was in need of aid after the defendant and his girlfriend explained the screaming. The Appellate Division concluded that the screaming gave the State Troopers an objectively reasonable basis to believe that a limited investigation was necessary to determine whether anyone else was in the home and in need of aid. Loud sex may have been a plausible source of the screaming, but that explanation was not so reliable that the police acted unreasonably in investigating further. The State Troopers intrusion was reasonable for the purpose of confirming that no other person was in the home and in need of aid.

The emergency aid exception is just one of many exceptions to the warrant requirement under the New Jersey law. Each criminal case involving a search of an individual or home must be carefully evaluated by the criminal defense attorney to determine if law enforcement acted under one of the exceptions to the warrant requirement or conducted an unreasonable search in violation of the constitutional rights of the individual. If a search was unreasonable, a motion to suppress should be filed to defend the charges the client is facing.

The lesson in this case for future defendants is to not mix loud sex and drugs because the emergency aid exception may give law enforcement the right to search your house for illegal drugs. Each case is evaluated under the totality of the circumstances. If this defendant did not have his marijuana plants out in plain view he may have avoided prison because the police are only entitled to a limited search of the home to confirm that no other person was in need of aid.

Sources: State v. McGacken, Superior Court of New Jersey-Appellate Division, Docket No. A-4527-08T4, unpublished opinion, decided March 15, 2010.

State v. Frankel, 179 N.J. 586 (2004).

On March 12, 2010 Lauren M. Carty of Little Silver, Monmouth County, New Jersey was sentenced by New Jersey Superior Court Judge Richard W. English at the Monmouth County Courthouse to a five-year flat prison term and ordered to pay $758,000.00 in restitution. Ms. Carty stole nearly $1 million from Wellington Place Condominium Association in Aberdeen, New Jersey as an owner of Property Management Association LLC. The co-defendant and mother of Lauren Carty, Marie Carty is scheduled to be sentenced at a future date. The defendants stole an estimated $995,000 of condominium association money from January 2005 through September 2006. The stolen money was used for personal items, including trips to Florida and clothing.

The defendant is 33 years old now and after serving her prison term she should spend the rest of her working life to pay back the $758,000.00 in restitution ordered by the Judge. N.J.S.A. 2C:44-2 provides the court with the authority to sentence a defendant to pay restitution. Additionally, if the defendant defaults on payments of restitution the Court has authority to impose a term of imprisonment, participation in a labor assistance program or enforced community service. These options shall not reduce the amount owed by the person in default. N.J.S.A. 2C:46-2.

It is likely that the defendant in this case will default on the restitution payments. Even if the $758,000 was divided over 30 years she would have to earn an additional $25,266.67 a year to meet her payment obligations. The defendant will probably never pay back the condominium association in full. It will be extremely difficult for the defendant to earn a living after being released from prison. The defendant will now have to disclose on employment applications she is a criminal. This defendant was also self-employed as the owner of the property management company. It will be tough for her to earn a living to support herself and her family after leaving prison. Finding a way to pay back the stolen money may be impossible.

The restitution laws should be revised to allow the court to order that the defendant sell any real estate or personal property they own to pay a portion of the resitution judgment. For example, this defendant should be ordered to sell her clothes that she bought from the stolen monies. Forcing the sale of the defendant's home in this case may not be beneficial. According to open public land records available through the Monmouth County Clerk's Office the Carty/Reid home in Little Silver may be in foreclosure as a lis pendens was filed in May 2007, possibly a reason why someone would resort to stealing money.

Source: Asbury Park Press, March 15, 2010, page B1, by Charles Webster, Staff Writer

The New Jersey State Police Marijuana Eradication Squad along with local police helped to bust a major marijuana manufacturing network that used rented homes as their indoor growing farms. A police officer in Monroe Township on a driving while intoxicated call smelled marijuana smoke coming from a nearby chimney on February 17, 2010.

A squad of police officers knocked on the door of the home where the marijuana odor was coming from and discovered an enormous indoor marijuana growing farm consisting of ventilation systems, heating lamps, and stolen electric. At the Monroe home the police found over 1,000 marijuana plants being cultivated, 50 pounds of packed marijuana and cash. Within the next few days the police raided four other homes in Millstone Township and Manalapan Township (Monmouth County), Old Bridge (Middlesex County), and Manahawkin (Ocean County). Law enforcement seized over 3,300 marijuana plants, 115 pounds of harvested marijuana, and $65,000 in cash.

The defendants in this case could face various criminal charges. Some charges with possible prison terms of up to 20 years. The possible charges these defendants could face are:

Manufacturing, distributing or dispensing marijuana (N.J.S.A. 2C:35-5)
Maintaining a marijuana production facility (N.J.S.A. 2C:35-4)
Possession of marijuana (N.J.S.A. 2C:35-10)
Use or possession with intent to use drug paraphernalia (N.J.S.A. 2C:36-2)
Distribute, dispense or possess with intent to distribute or manufacture drug paraphernalia (N.J.S.A. 2C:36-3)
Racketeering (N.J.S.A. 2C:41-2, 2C:41-3)
Theft of electric services (N.J.S.A. 2C:20-8)

It will be interesting to see if the prosecutors that handle these defendants are able to charge all of the above crimes and possibly more if the facts and circumstances fit the crimes.

Criminal defense attorneys that will be representing these defendants will have a challenge ahead of them in attempting to find a mistake made by the police to possibly get the searches of the homes suppressed. Based on the facts presented to the public thus far it may be that the criminal defense attorney's job will be to work out the best plea agreement for their client. It would be unlikely that a defendant in this marijuana growing enterprise would go to trial as no jury will ever be sympathetic to a defendant that was making millions of dollars from the growing of marijuana.

Source: Asbury Park Press (app.com), March 10, 2010, by Ken Serrano, Gannett New Jersey.

The Supreme Court of New Jersey decided the matter of State v. Broom-Smith on March 9, 2010. The Court's decision will likely change the way search warrants are obtained by the police and allow for defense attorneys to further challenge searches. The Supreme Court has attempted in this opinion to establish procedures to limit what has become known as "judge shopping", where a law enforcement officer may obtain a search warrant from a more pro-prosecution judge.

After establishing probable cause through two controlled buys by a confidential informant, the Ocean County Prosecutor's Office investigator sough a search warrant for the defendant's home located in Dover Township (Toms River). The Dover Township Municipal Court was not in session so the warrant application was made to the municipal court judge in neighboring Berkeley Township. The defendant moved to suppress the evidence of the search and requested discovery to determine where the two regularly-assigned Dover Township judges were at the time of the warrant application.

The defendant challenged N.J.S.A. 2B:12-6 and Rule 1:12-3 as being overbroad and illegal. The Supreme Court affirmed that both the statute and rule were broad enough to authorize the Berkeley Township municipal court judge to issue the search warrant for defendant's house in Dover Township under the circumstances of the case.

In its opinion, the Court provides a list of factors to be considered to allow for the cross assignment of municipal court judges. First, the law enforcement officer seeking the warrant must attempt to contact the territorially-appropriate judge to determine if the judge is disqualified or unable to hear a case. If the particular court in not being held, this does not necessarily mean the judge is unable to hear the warrant application. Reasons the judge may be unavailable could included being away on vacation, hospitalized or away from his vicinage in furtherance of his private practice. Facts that the judge is too busy with other matters, that his particular municipal court is not in session, that he is home for lunch, or that he is at his local private practice office may not be acceptable to trigger a cross-assignment. The law enforcement officer should also wait a reasonable period of time for the judge to be available, unless the matter is emergent and time is of the essence.

Second, the cross-assignment order should prescribe the sequence to which substitute judges are to be resorted to eliminate any question of judge shopping. Third, when a substitute judge is used, the police should provide a record for the reason the application was not made to the territorially-appropriate court. The Court directed the Municipal Court Practice Committee make recommendations regarding the changes to the rules.

This decision will greatly impact search warrant procedures. Law enforcement officers will now have to provide a step by step timeline in their reports/affidavits stating that the territorial-appropriate judge was not available. Criminal defense attorneys will now request further discovery to determine if judge shopping still occurred. Could a defense attorney call a municipal court judge as a witness in a motion to suppress hearing to determine that he was actually unavailable on the date the warrant was issued? Should municipal court judges be required to keep a daily journal of their whereabouts that would be discoverable by a criminal defense attorney? Should municipal court judges be issued emergency cellular phones to allow law enforcement to contact them 24/7 for a telephonic search warrant? In this age of technology there should be little reason for a judge's unavailability.

Source: State v. Jason V. Broom-Smith (A-3-09), decided March 9, 2010, Supreme Court of New Jersey.

The New Jersey statute regarding installment payments has changed. The New Jersey Supreme Court issued Directive #02-10 on March 2, 2010 to provide guidance to municipal courts for the changes to New Jersey Statute Annotated 2B:12-23.1, effective January 18, 2010. Municipal courts in New Jersey hear disorderly and petty disorderly person offenses, other non-indictable offenses, motor vehicle and traffic violations, fish and game regulations and boating laws, and violations of county and municipal ordinances. In most matters cases are resolved by the municipal court judge imposing a monetary penalty or fine. Many defendants have a difficult time making the payment on the day they are sentenced.

N.J.S.A. 2B:12:23.1 allows for the municipal courts of New Jersey to order payment of the fines/penalties in installments for a period of time determined by the court. This statute does not apply to the payment of restitution to the victim of a crime or the $250 surcharge assessed for unsafe driving (New Jersey Statute 39:4-97.2).

The New Jersey Supreme Court directive #02-10 states that the defendant must complete a financial questionnaire in order for the municipal court judge to make a decision regarding the defendant's ability to pay. One factor the judge should consider is if the defendant's earnings are less than 250% of the federal poverty guidelines to be considered for time payments which is an annual gross income of $27,075 for a one person household, $36,425 for a two person household, $45,775.00 for a three person household, and $55,125.00 for a four person household.

A defendant shall be considered to default on time payments if the defendant's driver's license is suspended for failure to pay (N.J.S.A. 2B:12-31(a)(2) or if an arrest warrant has been issued for the defendant after failure to pay. Upon defaulting on time payments the municipal court can institute the alternatives listed in the statute after finding the defendant does not have the ability to pay. The judge must state on the record the reason for changing the sentence and the implementation of alternatives for any payment of fines/penalties.

If a person defaults on any payments and the municipal court finds that the defendant does not have the ability to pay the court has five options: (1) reduce the penalty, suspend the penalty, or modify the installment plan; (2) order that credit be given against the amount owed for each day of confinement, if the court finds that the person has served jail time for the default; (3) revoke any unpaid portion of the penalty, if the court finds that the circumstances that warranted the imposition have changed or that it would be unjust to require payment; (4) order the person to perform community service in lieu of payment of the penalty; or (5) impose any other alternative permitted by law in lieu of payment of the penalty. These five options give municipal court judges too much discretion.

In practice, criminal defense attorneys must be aware of their client's financial ability to pay prior to appearing in court. The criminal defense attorney must advise their clients in advance of the possible penalties to be imposed and question the client's ability to pay. Furthermore, if the defendant does not have the ability to pay a substantial fine, for example a driving while intoxicated or a large fine for a municipal ordinance violation which could be up to $2,000, the defendant should be prepared with his or her financial earnings information to complete the financial questionnaire. In order to expedite the decision of the judge regarding the defendant's ability to pay the municipal court should make available prior to court the financial questionnaire. In the alternative, the Administrative Office of the Courts of the State of New Jersey should make available a standard financial questionnaire form to be used by all municipal courts and have this form downloadable online.

Furthermore, the Supreme Court's directive does not list other factors that the municipal court should consider in determining the defendant's ability to pay. The Court only states one factor, whether the defendant's income is less than 250% of the federal poverty guidelines. By only listing this one factor the Supreme Court seems to imply that if you are under the annual gross income levels you are eligible for time payments. Income alone does not show a person's ability to pay the court imposed fine or penalty. The financial questionnaire should list other factors for the court to consider such as the defendant's current financial liabilities including rent payments, mortgage payments, auto payments, insurance payments, child support, medical expenses, and any other monthly living expenses.

The Supreme Court should consider requiring all municipal courts to have a credit card payment option. This may reduce the need for time payments to be decided by the municipal court judges. Municipal court judges should not be wasting valuable judicial resources on reviewing the financial questionnaire of a defendant. Defendants need to be aware of the possible penalties and fines that could be imposed and make arrangements to pay the fine prior to appearing in court.

Additionally, the Court or legislature should put monetary values on community service and jail confinement, if these alternatives to payments are imposed after a defendant's failure to pay. For example, for every hour of community service the defendant should be credited $10.00, or for every day of jail confinement a defendant should be credited $50.00. This would allow for fairness to people who can pay their fines and penalties.

The municipal courts will continue to struggle with payments of fines and penalties by defendants until the New Jersey Supreme Court makes clearer rules and regulations and takes discretion out of the hands of the municipal court judges.

Sources: N.J.S.A. 2B:12:23.1
Administrative Office of the Courts, Directive #02-10

On March 2, 2010, a defendant on trial for carjacking, aggravated assault and various other crimes slapped his attorney in the face during a trial before New Jersey Superior Court Judge Francis Hodgson sitting in Ocean County. Deputy Assistant Public Defender Philip Pagano was smacked just above his right eye by his client Anthony Montgomery in the presence of the jury. Outside the presence of the jury, in the same afternoon, the defendant grabbed a microphone stand and attempted to strike Mr. Pagano while being escorted out of the courtroom by sheriff's officers. The defendant was restrained both times by sheriff's officers and thankfully Mr. Pagano was not harmed seriously.

Pagano asked the Judge to declare a mistrial. The Judge denied the request for a mistrial stating the defendant should not benefit from his own actions. The trial proceeded with summations by both the defense and prosecution.

The life of a New Jersey defense attorney is never dull. No defense attorney wakes up and prays for protection from his own client. Will there be a future trial with Mr. Montgomery as defendant and his former attorney as the victim in an assault trial?

What would possess a client to assault his attorney in the presence of a jury about to decide if he is guilty or innocent? Did the client have some jailhouse lawyer tell him that if he slaps his attorney he will have grounds for a mistrial or appeal? It is ridiculous that a defendant would believe that if he disrupts the court that he will be granted a mistrial. If a defendant's mistrial request was granted, it would mean he would never be brought to trial because he is never going to behave in a courtroom. See, State vs. Morris, 2006 WL 3782918 (N.J.Super. A.D. 2006), unpublished decision.

The defendant in this matter could be attempting to set the facts for an appeal based on a lack of competency to stand trial. It would be up to a medical professional to determine if the defendant lacks the capacity to stand trial. Boisterous behavior and anger toward your defense attorney is unlikely to provide the facts for the defendant to win a potential appeal. See, State vs. Spivey, 65 NJ 21 (1974).

In the end, the defendant should have attempted to cooperate with his defense attorney. Slapping your attorney in the presence of the jury only shows the jury that you are a mean, angry individual that deserves to go to prison for a long time. Although the Judge will instruct the jury to base their decision on the evidence, this defendant will likely be slapped with a guilty conviction and a long prison sentence.

Source: Asbury Park Press (app.com) March 2, 2010 by Kathleen Hopkins