New Jersey Criminal Lawyers Blog

In a news item posted on the Star Ledger's web-site on October 9, and written by Eugene Paik, is a story that meets at the intersection of New Jersey family and criminal law.

In 1984, after a child custody hearing in Somerville pursuant to an ongoing divorce proceeding, Nancy Dunsavage Fielder abducted her then 6-year old daughter and fled New Jersey. Dunsavage Fielder was located by law enforcement after her now 32-year-old daughter, having been told of her past by her mother, sought to change her name from her assumed name back to her real name. A routine records check triggered by that request revealed her abduction.

After her arrest, Dunsavage Fielder, resident in a Nevada jail, appeared via video conference before a Nevada judge for an extradition hearing. Dunsvage Fielder did not contest extradition back to New Jersey. Dunsavage Fielder will remain in Nevada, in jail on a no bail warrant, until New Jersey investigators fly out to Nevada to retrieve her. The Somerset County Prosecutor's Office says the investigators will fly out to Nevada well before the end of October. That timing reflects both a desire to retrieve Dunsavage Fielder and to avoid the possibility, raised by the Nevada judge, that, should New Jersey not retrieve Dunsavage Fielder prior to October 22nd, he would consider releasing her on bail.

Given Dunsavage Fielder's demonstrated history of leaving town, it can be assumed that New Jersey investigators are not eager to see Dunsavage Fielder released on bail. Indeed, the no bail warrant is a reflection of Dunsavage Fielder's history. Of course, and as reported by Mr. Paik in the Star Ledger story, Dunsavage Fielder's flight with her daughter a quarter of a century ago may not have been an entirely condemnatory act. In court papers, Dunsavage Fielder alleges that her husband was abusive, and had threatened to harm her and her daughter if she left him. According to Dunsavage Fielder,

"Day in and day out, fear and violence were part of my life. I fled because . . . I wanted to remove my daughter from his life of threats and fear. I did not want this to be her future, too."

Dunsavage Fielder also noted in court papers that she did not have money for a lawyer at the time she abducted her daughter, and that fact contributed to her decision to flee.

Of course, Greg Fielder- the husband and father in this story, who now lives in New Hampshire- is not sympathetic to his erstwhile wife's assertions. He claims Dunsavage is vindictive and an inveterate liar.

Soon Dunsavage Fielder will be back in New Jersey, in a courtroom. We will likely learn more then of her motivations for taking her daughter and also whether her professed fears for her own and her daughter's safety were justified. A much different matter, though not one entirely divorced from whether her fears were justified, is whether or not such actions can be justified in the eyes of the law.

Elections for student council at a local Point Pleasant, Ocean County, New Jersey middle school not only ended in controversy, but the New Jersey Superior Court, Law Division Criminal Part, became involved over allegations of criminal cyber-bullying.

Student council elections at Point Pleasant Memorial Middle School this year were hotly contested, as the winning candidate for vice president of the student government, a 12 year old boy, found himself embroiled in a political fight involving his mother, Susan Rogers, the Point Pleasant Borough Council President, and newly elected councilman Christopher Goss, as well as school board members and the parent of the student who the boy defeated in the school election.

Councilman Goss' Facebook page was where much of the drama began as the mother of the defeated candidate, Ann Hoffman-Zitarosa, wrote that she believed the young student had "bought" the election and that he was "slime" adding that the proverbial apple "doesn't fall far from the tree."

The electoral intrigue did not end however. Not satisfied to smear young Mr. Rogers on Facebook with mere words, pictures of the 12 year olds' campaign signs vandalized with crude sexual drawings also appeared online. The postings involving Rogers prompted another adult in a position of authority in the Point Pleasant school system to post on Facebook that the young boy could not help who his mother was and that he was learning from "a political machine that only knew how to use money to win friends & votes."

Once word leaked out that Susan Rogers had complained to the school board about the attention her son was receiving, a local blogger named Laura Beeden posted a suggestion on her blog that the mother-son duo were attempting to alter election results with bribes. The school election was controversial to the extent that the Superintendent of Point Pleasant Borough launched an investigation into the results of the student council race, finding that young Mr. Rogers had won his election fairly.

Criminal charges were filed against the adults. A Superior Court Judge found that there was a lack of probable cause to pursue the disorderly persons complaints which had been filed against Goss, school board member Joan Speroni, and Hoffman-Zitarosa. Susan Rogers was undeterred by the dismissal of the criminal charges and stated that she was pursuing civil remedies for defamation of character and libel, recently having sought an attorney to represent her son in the manner. For his part, Mr. Goss claims that this is all a political ploy by Susan Rogers, and that neither she nor her son could have seen the posts without monitoring his online activity.

In New Jersey, cyber bullying is covered under N.J.S.A. 2C:16-1, a statute dealing with bias and intimidation. The penalties for actions such as cyber bullying are covered under N.J.S.A. 2C:43-3.8. There are also resources throughout the state aimed at stopping cyber bullying, such as www.njbiascrime.org, and legislation enacted in 2002, N.J.S.A. 18A:37-13, requires school districts to adopt policies that combat bullying.

SOURCE: Asbury Park Press, "Judge drops cyberbullying charges," by Erik Larsen, Staff Writer, December 16, 2010.

In the case of the State of New Jersey v. Bell, the defendant, convicted of shoplifting, and having had prior convictions for shoplifting, was sentenced by the trial judge to 180 days in jail, pursuant to N.J.S.A. 2C: 20-11, which provides in part,

"Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C:43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows: for a first offense, at least ten days of community service; for a second offense, at least 15 days of community service; and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days."

A New Jersey Appellate Division panel in an unpublished decision ruled the defendant's sentence be reconsidered at the trial level. The statute mandates a minimum of 90 days in jail for conviction of a fourth offense and because the defendant met that standard, the appeals panel would have found no problem had the trial judge merely imposed that statutory minimum jail sentence. The appeals panel had no necessary problem with the imposition of the 180 day jail sentence as such. The panel's problem with the imposition of the sentence concerned the fact that the trial judge, in going beyond the statutorily mandated minimum sentence, made no inquiry into whether the greater sentence would "entail excessive hardship". Moreover, even had the judge made such an inquiry, there was nothing in the record stating why the greater sentence was justified in light of any excessive hardship.

The defendant stated that the imposition of the extra ninety days of her jail sentence would represent an excessive hardship with respect to her care of her infant twin children. The matter of the defendant's jail sentence will now go back to the trial court level for reconsideration. It is important to note that the same 180 day sentence may be the result of the impending reconsideration.

It may be, for example, that the trial judge had legally sound reasons for the imposition of the harsher sentence, and had simply failed to include them, or any description of the deliberative process that led to them, in the trial record.

SOURCE:
State v. Bell, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, DOCKET NO. A-1844-09T3, decided September 22, 2010.

This term, the United States Supreme Court will hear arguments in the case of Gould v. United States. The question the case presents to the Court's Justices is an interesting one. Incidentally, newly minted Associate Justice Elena Kagan has recused herself from the case: she is the immediate past Solicitor General of the United States, and held that office while her staff was preparing for the Gould case. Here is how the Court's website articulates the question presented in the Gould case:

Did the United States Court of Appeals for the Fifth Circuit correctly hold, in direct conflict with the Second Circuit (but in accordance with several other circuits), that a mandatory minimum sentence provided by 18 U.S.C. § 924(c)(I)(A) applies to a count when another count already carries a greater mandatory minimum sentence?

Source: http://www.supremecourt.gov/qp/09-07073qp.pdf

That articulation of the issue may seem more mysterious than interesting, so here is the heart of the matter restated by James McHale and Alexander Malahoff, two law students at Cornell University's law school, who have written an exhaustive and recommended analysis of both Gould and its companion case, Abbott. The analysis, from which the excerpt below is taken, is available on Cornell Law School's estimable website:

"18 U.S.C. § 924(c)(1)(A) requires a 5-year minimum sentence for possessing a firearm in furtherance of a drug-trafficking crime - '[e]xcept to the extent that a greater minimum sentence is otherwise provided by . . . any other provision of law."

Did the U.S. Court of Appeals for the Fifth Circuit correctly hold, despite this 'except' clause, that a defendant is subject to the 5-year minimum sentence for the firearm possession even though another provision of law requires a greater minimum sentence for another count of conviction?"

In a nutshell, Mr. Gould committed a drug crime, the minimum sentence for which exceeded the five years called for under the federal statute under review, 18 U.S.C. § 924(c)(1)(A). What Mr. Gould is arguing is that, because his conviction for the underlying crime necessarily resulted in a prison term in excess of five years, he should be exempted from the additional punishment of five years called for under the statute under review- which runs consecutive to the prison term for the underlying crime.

The larger issue in Gould, and also Abbott, is what scope the Supreme Court will give to the 'except' clause in the federal statute. If, for example, the Court rules that the 'except' clause's reference to "any other provision of law" refers only to other provisions of law covering the same offense, then many convicted defendants will face longer prison terms than would be the case, for example, if the firearm charge pursuant to the statute were merged into the underlying and predominant charge a defendant is charged with.

Conversely, if the Court rules that the 'except' clause's reference to "any other provision of law" applies to . . . any other provision of law (that is to say, without regard to the substance of the charge), then the federal statute, enacted to express society's view of violent drug crime, will be devitalized.

With the holiday season upon us, stores have prepared themselves for not only an influx of holiday shoppers, but also a possible increase in shoplifting. The consequences of shoplifting in New Jersey are serious, and punishments increase along with the value of the stolen goods.

Under New Jersey Statute 2C:20-11, shoplifting is considered a second degree crime if the value of the goods stolen is $75,000.00 or more, or the merchandise was stolen in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is $1,000.00 or more. Shoplifting is considered a third degree crime if the value of the items is more than $500 but less than $75,000, and a fourth degree crime if the value of the stolen goods is between $200 and $500. Any price under $200 and shoplifting is considered a disorderly persons offense.

There is a presumption in New Jersey, as stated in New Jersey Statute 2C:20-11(d), that any items that are concealed purposely were concealed with the intent of taking them without paying for them.

The charge of shoplifting can have serious penalties including mandatory fines, the payment of restitution to the victim, a jail or prison term, community service, probation, and loss of your driving privileges. Through plea agreements and diversionary programs an experienced criminal defense attorney may be able to substantially limit the penalties you are facing.

Shoplifting may seem like a minor crime but a person arrested for and convicted of shoplifting can face a lifetime of consequences and in the future may have difficulty obtaining employment. Facing a criminal charge of shoplifting is a serious matter and if you or someone you know has been arrested and charged with shoplifting it is recommended that you speak with an experienced New Jersey criminal lawyer who will represent you throughout the proceedings and will be able to answer any questions you may have in a thorough and professional manner.