New Jersey Criminal Lawyers Blog

The Appellate Division of the Superior Court of New Jersey has recently decided a case which could have substantial implications for both New Jersey criminal defense attorneys and their clients.

In State v. Donald R. Hand, the Appellate Court was hearing an appeal that centered on the issue of whether or not a conviction in New Jersey Superior Court, would preclude the State from also bringing charges in municipal court which related to the same incident.

On December 18, 2007 defendant had, after consuming a pint of vodka, driven onto an athletic field that was being used by both children and adults at the time and hit a tree and several other objects before being stopped and restrained. In April of 2008 defendant plead guilty in Superior Court to a single charge of fourth degree creating a widespread risk of injury or death (New Jersey Statute 2C:17-2(c)), he was sentenced to 365 days imprisonment. In November of 2009 the defendant appeared in the Lower Cape May Township Municipal Court and plead guilty to DWI and reckless driving offenses, for which he was sentenced to six months incarceration as well as a ten year loss of driving privileges (based on his prior DWI convictions) and appropriate fines and penalties.

The State in each case was relying on the defendant's intoxication for their evidence of reckless behavior, and the defendant appealed stating this was in violation of double jeopardy under the same evidence test. The same evidence test states that the same evidence cannot be used to convict the defendant when the evidence necessary to prove the first offense is also needed for prove the second offense.

The Appellate Court ruled that the two guilty pleas did violate the defendant's right against double jeopardy because the State had elected to "limit the underlying facts constituting the offense" in both the Superior and Municipal court cases to the defendant's having driven while intoxicated. This was despite the Court having stated that there were other alternative facts which "could have been proffered and accepted in order to establish a factual basis for defendant's plea."

This is a frequently occurring event in motor vehicle cases, where the same accident or offense may result in charges in both Superior Court and municipal court. After the Hand case it is imperative for the State to be certain that the underlying elements of each charge and the facts being used to prove each element are different from what the defendant was confronted with in the other court.

Source:

State of New Jersey v. Donald R. Hand, Superior Court of New Jersey Appellate Division, Docket No. A-3901-09T3, decided November 29, 2010.

The accused ringleader and also two of the suspected cohorts involved in a large indoor marijuana growing operation who were arrested in February have been indicted. The suspects are facing lengthy prison sentences and large fines if they are convicted and were being held in county jail in lieu of bail ranging from $750k to $1 million dollars. In February police had initially been alerted to the marijuana when a patrol officer noticed the smell of burning marijuana coming from the chimney of a house in Monroe Township. The chance encounter in Monroe has lead to one of the largest drug busts in recent years.

Tuan Ahn Dang, 36, of the Port Monmouth section of Middletown; Ngoc Bui, 35, of Old Bridge; and Thu Nguyen, 45 of Monroe were named in the 23 count indictment. Tuang Ahn Dang was indicted and charged as the leader of the syndicate, and faces charges of being the leader of a drug syndicate, a charge which could carry a life sentence with parole eligibility after twenty five years. His charges include various possession, manufacturing and distribution charges as well as maintaining and operating a drug producing facility, money laundering, conspiracy, theft of services and criminal mischief.

A fourth suspect, Tin Phan, 42, of Sayreville, was also indicted and charged with fraudulently obtaining mortgage loans worth $370,000 to purchase a home used to grow marijuana. The operation used homes not only in Monroe in Middlesex County but also Ocean and Monmouth Counties.

According to New Jersey Attorney General Paula Dow the indicted suspects were part of the largest indoor marijuana growing operation ever to be uncovered by New Jersey law enforcement. The investigation in total resulted in the seizure of 3,370 pot plants, 130 pounds of harvested marijuana, and $66,000 in cash. An array of marijuana growing material was also taken and several state and local law enforcement agencies were involved in the investigation.

SOURCE:

Asbury Park Press, "Three indicted in alleged multimillion-dollar marijuana growing ring"
By CHARLES WEBSTER • STAFF WRITER • November 10, 2010

In the recent case of State v. Wingate, a New Jersey Appellate panel, in a per curiam opinion, let stand the defendant's drug conviction, but vacated the sentence the trial judge imposed for that conviction. The appellate panel noted that the trial judge relied on the defendant's prior criminal history, as it was related in the Presentence Investigation Report , to decide on the appropriate sentence. The sentence the trial judge imposed was at the top of the second-degree range of New Jersey's sentencing guidelines.

A Presentence Investigation Report includes information that will aid a judge, for example, in determining the most appropriate sentence for a given defendant. Included in a Presentence Investigation Report, when applicable, is a defendant's prior criminal history. A defendant's prior criminal history is generally seen as probative, or relevant, for the purpose of sentencing for subsequent crimes. That view is supported by such data as, for example, recidivism rates in the State of New Jersey. The thinking is that people with a record of committing crimes will generally continue to commit crimes. This assumption has a flip-side, which tends to favor first-time criminal defendants: a defendant's absence of prior criminal trouble often leads to a reduced sentence for the crime before the court. It is important to remember, however, that each individual is just that: an individual. Sometimes a first-time offender will prove more criminally incorrigible than an individual who had been a repeat offender, but whose offenses were to some degree tied to circumstances in his or her life which no longer obtain.

Under New Jersey rules of evidence in criminal trials, the circumstances under which a trier of fact may consider a defendant's criminal history for the purpose of determining guilt for a particular crime are circumscribed. However, a judge imposing a sentence on a defendant already convicted by the trier of fact has broad latitude to consider that defendant's criminal history in the sentencing decision.

Nevertheless, where the criminal history considered by the trial judge is inaccurate, and inaccurate in such a way as to prejudice the defendant, it seems clear that a correction needs to be made.

In State v. Wingate, the Appellate panel came to that very conclusion. The Appellate panel's vacating of the sentencing order means that issue will be returned to the trial level for reconsideration, this time in light of an accurate reporting of the defendant's criminal record.

SOURCE:

STATE OF NEW JERSEY, Plaintiff-Respondent,
v. VINSON WINGATE, Defendant-Appellant.
No. A-4498-08T4. Superior Court of New Jersey, Appellate Division. Submitted September 7, 2010. Decided September 24, 2010.

What was for a long time an under the radar but growing trend has now turned into a full blown epidemic not only in New Jersey but throughout the United States. Abuse of prescription drugs, such as OxyContin, Percocet, Vicodin, Xanax, and Morphine is resulting in numerous arrests and deaths, and is ruining the lives of thousands of Americans a year.

Among adolescents, prescription drugs have replaced heroin and cocaine as a first use drug, with many teens and young people finding the drugs in their own homes. According to the Partnership for a Drug Free America, prescription drug abuse now ranks behind only marijuana in the rate of usage among teenagers. See this informative advertisement.

In New Jersey prescription drugs are classified as a controlled dangerous substance (CDS) and penalties for the possession or possession with intent to sell can result in fines in the tens of thousands of dollars, long probationary periods and even jail or prison time. Related offenses, such as forging prescriptions in order to purchase more prescription drugs, or prescription fraud can also result in harsh penalties up to and including jail or prison time. Penalties for possession or sale of a controlled dangerous substance are heightened, with offenders often facing twice the amount of time in prison before being eligible for parole, if they are arrested in a school zone or are arrested for selling to minors. N.J.S.A. 2C:35-10

Though prescription drug abuse among teens and young adults is widespread the work of law enforcement authorities and also of drug rehabilitation and drug education programs are contributing to a new awareness of prescription drug abuse.

Being arrested for possession of a controlled dangerous substance such as prescription drugs is a serious offense. If you or someone you know has been arrested for a drug offense consult an experienced New Jersey criminal law attorney immediately. An experienced criminal defense attorney may be able to resolve your case through a diversionary program to avoid the substantial penalties you currently face and help get your life back on track.