New Jersey Criminal Lawyers Blog

In the case of State of New Jersey v. Daniel Twian Brown, the Supreme Court of New Jersey in a decision dated January 25, 2011 held that the police had probable cause to arrest Mr. Brown after he came down from a roof by fleeing from a window at his girlfriend's apartment. Mr. Brown immediately fled to a public area when the police arrived to arrest him at his girlfriend's apartment. The police had sufficient probable cause to believe he committed a series of armed robberies from statements made by his co-defendants. The police did not need an arrest warrant for Mr. Brown in public. The police also had probable cause to arrest Mr. Brown for his conduct in resisting arrest, which they observed. Although there were defective arrest warrants that lacked probable cause, Mr. Brown's post-arrest statements following his lawful arrest were admissible.

The facts of this case involved the arrest of Mr. Brown on January 1, 2005. At the time of the arrest no judicial officer had reviewed the complaints or authorized Mr. Brown's arrest. Ten police officers went to Mr. Brown's girlfriend's apartment. Mr. Brown jumped out a window on to the roof of an adjacent building when the police knocked.

The Court's analysis stated the existing law regarding a warrantless arrest. For an arrest there must be probable cause to believe that a crime has been committed and that the person sought to be arrested committed the offense. The statements of Brown's co-defendants implicating him in the armed robberies met that test.

Absent exigent circumstances or consent, the police must obtain a warrant to conduct an arrest inside a home. To search for the subject of an arrest warrant in the home of a third party, the police must also obtain a search warrant, absent exigent circumstances or consent. Brown transformed the situation from an arrest in a third-party's private apartment, where police would need an arrest and search warrant, to the public arena, where the police could arrest him without a warrant based on probable cause that he committed the armed robbery.

Felony arrests made in public places and supported by probable cause can be valid without a warrant. Brown's conduct in the presence of the police provided an alternative basis to arrest him. After jumping onto an adjacent roof, Brown created a twenty-minute standoff with the police in a public place, posing a risk to the officers and the public. Brown chose not to stand his ground in his girlfriend's apartment and submit to a warrantless arrest, and instead fled and engaged in a public standoff.

The lesson of this case for defendants is not to flee to a public place if you know the police don't have an arrest warrant or search warrant. You have much more protections under the Fourth Amendment search and seizure laws while in your home or a third-party's home than you do in a public place.

Continue reading "Supreme Court Of New Jersey Allows Warrantless Arrest For Man Who Jumps Out Window Onto Roof And Rules His Statements Are Admissible." »

Many states, in seeking to minimize the usually harmful and often tragic effects of drunk driving, have enacted tough drunk driving laws. In order that such laws not be circumvented by the simple expedient of the suspected drunk driver refusing to take a breathalyzer test , many states have added to their drunk driving laws statutes that make such a refusal a conviction substantively analogous, in terms of penalties incurred, to a DWI conviction. That is to say, where a suspected drunk driver refuses to take such a test, that driver in effect is deemed, for all practical purposes, to have been driving drunk.

If that seems constitutionally breathtaking, it is important to remember that driving is not a right, but a privilege, and so states have wide latitude to regulate the act of driving.

The issue decided by the New Jersey Supreme Court presents a particular and perhaps an until-now unconsidered ramification of New Jersey's refusal statutory provision (New Jersey Statute 39:4-50.4a). Namely, may (or must) a breathalyzer conviction be stacked up alongside actual DWI convictions for the purpose of complying with statutory provisions concerning minimum sentence guidelines for driving while intoxicated repeat offenders. See State v. Ciancaglini, Supreme Court of New Jersey, A-92/93 September Term 2009, argued November 8, 2010, decided January 19, 2011.

In the case before the New Jersey Supreme Court, Eileen Ciancaglini had been convicted of a DWI offense back in 1979. In 2006, she was stopped by police but refused to take a breathalyzer test. She was convicted for that refusal. Then in 2008 she again was convicted of DWI. The trial judge in the 2008 matter sentenced her as a third time offender, pursuant to New Jersey law. The judge considered the 2006 refusal conviction to be the second DWI offense, making the 2008 offense the third offense. Ms. Ciancaglini was then sentenced to six months in jail and ten-year driver's license suspension.

As stated above, states generally have wide latitude in regulating the driving privilege. One can see the problem with respect to Ms. Ciancaglini's case. Now what is at stake are not fines and license revocation (although this latter sanction was realized), but rather whether the refusal conviction can be stacked with actual DWI convictions in order to put someone in jail for a significant amount of time. On appeal from the initial ruling, a Law Division judge said the refusal conviction should not have been counted as a DWI conviction. Last year, an Appellate Division court disagreed and said that the refusal conviction should have been counted. See opinion of the Appellate Division here. The New Jersey Supreme Court has settled the matter.

The New Jersey Supreme Court opinion holds:
"The defendant's prior refusal conviction cannot be considered as a "prior conviction" for purposes of her subsequent DWI conviction."

The Court based this holding on the legislative intent and legislative history of New Jersey's driving while intoxicated statute (New Jersey Statute 39:4-50) and refusal statute (New Jersey Statute 39:4-50.4a). The Court stated:
" In this case, although N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50a are both part of a statutory complex designed to rid the highways of drunk drivers and to make our roads safer, each is a separate section (each referring to "this section") with a different, albeit related, purpose, and each has different elements."

Each statute has penalties based on the number of prior offenses. "The penalties for each refusal offense now essentially mirror the penalties for each offense of DWI, but no custodial sentence is authorized as the result of a refusal conviction."

The sentence imposed by the Law Division was reinstated which was a fine of $500 (plus $336.50 in fees, surcharges and costs), a thirty-day jail term, a twelve-month license suspension, and a twelve-hour commitment at the Intoxicated Driver Resource Center. The Defendant's refusal convction could not be considered as a prior DWI violation for enhancement purposes, and thus she is not precluded from the benefit of the "step down" under New Jersey Statute 39:4-50 for a prior DWI, because her first DWI conviction (1979) was more than ten years prior to her second, the 2008 DWI conviction. New Jersey's DWI law provides a "step down" if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

Continue reading "New Jersey Supreme Court Provides Answer To Important DWI Question: A Refusal To Take A Breathalyzer Conviction Is NOT The Same As A DWI Conviction." »

In the case of State v. Russell, a New Jersey Appellate Division panel, in a per curiam decision, reversed and remanded the decision of the PCR (post conviction relief) judge to dismiss, without a hearing, the defendant's motion for post conviction relief based on the defendant's allegations of ineffectiveness of counsel. The defendant had raised three distinct objections to the representation he received from his trial counsel, which will now be afforded a hearing.

First, defendant claims his lawyer's failure to seek severance of his trial from that of his co-defendant prejudiced his interests. Severance is a request the trial judge can grant or not, so seeking it is not the same as securing it; but it is sometimes the case that a lawyer's failure to seek severance can constitute legally cognizable ineffectiveness. Generally speaking, issues like whether or not to seek severance are within the ambit of the defense attorney's discretion. That is to say, if, in the lawyer's professional and considered judgment, severance is likely to be helpful (or hurtful) to the client, then the attorney, after counseling the client on the matter, should proceed accordingly. Yet there are instances that can be imagined where the failure to seek severance could constitute legally cognizable ineffectiveness. For example, where the co-defendant's planned defense strategy, demeanor, and testimony are highly likely to prejudice a client's interests.

Second, defendant claims his lawyer failed to consult or present an expert concerning the lethal capacity of a quantity of mercury which figured in the case against him.

Third, defendant claims his lawyer, without the defendant's consent, conceded defendant's guilt with respect to some lesser charges that were filed against him. Again, while lawyers have broad discretion to defend their clients in a way that seems to them, in their professional judgment, best- and sometimes that will mean conceding ancillary guilt- conceding guilt on a client's behalf without that client's informed consent is not within that discretion.

Of course, raising such accusations is not the same thing as substantiating them. The defendant now has a hearing in which to convince a judge of the merit of his claims.

SOURCE:

State v. Ruel Russell, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, DOCKET NO. A-3249-08T4, decided October 8, 2010.

In an earlier blog post in this space, we highlighted the issue of false confessions. Now comes a story, from right here in New Jersey, which features a man who confessed to a series of car break-ins in the City of Newark that he not only did not commit, but which, owing to the fact that he was behind bars on an unrelated matter when seven of the break-ins took place, he could not have committed.

It is a story that reads like a comedy of errors, but which of course is anything but funny. The story was reported on the Star Ledger's website on October 10, 2010 and is written by Chirs Megerian. Mr. Megerian's story is long and detailed, and goes into issues that are beyond the scope of this post. Anyone wanting to get a more complete picture of what befell Ramon Guzman- the man who spent the ten months behind bars- is referred to the Star Ledger story.

This blog post is concerned only with the issue of Mr. Guzman's confessions to the car break-ins. Specifically, how did Mr. Guzman, having neither committed the car break-ins nor having any independent knowledge about them, make detailed confessions about those break ins? For example, and as reported by Mr. Megerian,

" . . . Guzman admitted to stealing $200.00 from a Pontiac, 25 bottles of baby formula from an Infiniti and clothes from a BMW . . ."

Mr. Guzman's lawyer in his civil rights lawsuit against the City of Newark alleged that a Newark detective, obviously privy to the details of the crimes, fabricated Mr. Guzman's statements. To be clear, Mr. Guzman's lawyer alleged the detective filled in the substance of the confessions and had Mr. Guzman sign them.

A lawyer for the Newark detective maintained however that Mr. Guzman learned the details of the crimes by reviewing incident reports with the detective, and then confessed using those details.

It is unclear where the truth lies with respect to this issue. For our purposes, however, the point is that whether the detective fabricated the confessions or whether Mr. Guzman did so after reviewing the incident reports is immaterial: either scenario constitutes improper procedure leading to an improper confession. The confessions were at the least a product of contamination, if not outright fraudulent behavior. Either scenario demonstrates why defense attorneys need to be vigilant defending a client- especially one who has confessed to a crime.

As the Star Ledger report makes clear, internal and external review controls failed in this case. It seems not too much to say that they failed- at least in part- because the existence of detailed confessions probably served to turn off the critical faculties of reviewing officers, and even those of his first two public defenders. Though Mr. Guzman was in jail during the time of the crimes he confessed to committing, and though sundry other red flags should have been raised concerning his case, his detailed confessions seem to have served to short-circuit any serious review of his case.

Incidentally, Mr. Guzman's civil rights lawsuit against the City of Newark was settled for $300,000.00. Cutting constitutionally-based procedural corners, however it happened in this case, always comes at an ethical cost. Often there is an undeserved human cost. Here there was also a financial cost, and at a time when the City of Newark- Mr. Zuckerberg's largesse notwithstanding- can ill afford it.

On the Op-Ed page of the October 6th edition of the Wall Street Journal, nine former administrators of the Drug Enforcement Administration call upon the United States Department of Justice to provide a legal opinion on California's Proposition 19 prior to the November 2010 Election Day, when California's residents voted for the measure.

Proposition 19, also known as the Regulate, Control and Tax Cannabis Act of 2010 , would legalize many aspects of marijuana production and use in California.
Proposition 19 did not pass on Election Day in November. See ABC news story here.

There is a challenge on Proposition 19's horizon as fundamental as the challenge it faced at the ballot box on Election Day. That challenge is a constitutional challenge based on the United States Constitution's Supremacy Clause. The Supremacy Clause, simply stated, means that, where a state law conflicts with a federal law, the federal law is given effect. The state law, in other words, is invalidated by the existence of a conflicting federal law.

In their Wall Street Journal opinion piece, the former administrators of the Drug Enforcement Administration point out that the federal Controlled Substances Act makes the production and sale of marijuana a federal crime. The production and sale of marijuana is likewise illegal in New Jersey. Except for certain limited medical exceptions, the production and sale of marijuana in California is illegal. Hence Proposition 19. If Proposition 19 ever passes on a future Election Day, the federal Act will remain in place. That means that while various aspects of production and sale of marijuana in California would then be legal, the legal regime in California with respect to marijuana would be in direct conflict with the federal Controlled Substances Act.

In order for the Supremacy Clause to be invoked to invalidate the Regulate, Control and Tax Cannabis Act of 2010, if it ever passes, a challenge would have to be made in court. The former administrators of the Drug Enforcement Adminsitration, in their opinion piece in the Wall Street Journal, call upon the Department of Justice to issue and publish a legal opinion with respect to the constitutional supremacy of the federal Controlled Substances Act. They wanted the Justice Department to share that opinion with the people of California ahead of the 2010 Election Day. They hope that by doing so, the Justice Department will short circuit the need to mount a constitutional challenge to the California law in court, as California's voters, aware the measure is likely unconstitutional, will decline to vote for it on Election Day.

Whatever becomes of Proposition 19, many observers, some citing the dire and mounting violence in Mexico and the rising population of non-violent prisoners here at home, believe the United States should move toward the legalization of marijuana production and use. The legalization campaign seems to be reaching critical mass. In the not too distant future, it may no longer be illegal in New Jersey to grow or use marijuana. It's certainly illegal now, except under the very limited medical marijuana law. See nj.com article regarding N.J. medical marijuana signed.

As reported by the Asbury Park Press on January 11, 2011 online (APP.com), two individuals from Reston, Virginia were arrested by Brick Township Police after a patrol officer investigated a suspicious vehicle in the parking lot of the Dorado Plaza. The police officer questioned the occupants of the vehicle and observed cocaine and open bottles of alcohol. The police officers searched the vehicle and found drug paraphernelia in the console of the car, a large amount of cash and marijuana.

Each occupant was charged with drug possession (New Jersey Statute 2C:35-10), drug distribution (New Jersey Statute 2C:35-5), possession of drug paraphernelia (New Jersey Statute 2C:36-2) and possession of open alcoholic beverage containers (New Jersey Statute 39:4-51b). Bail was sent for both individuals at $200,000 and they were sent to the Ocean County Jail.

These individuals are possibly facing a significant prison term for drug distribution charges. The quantity of the drugs found by the police will determine if these individuals are facing a first, second or third degree drug distribution charge. The specific facts and circumstances of this case which shall be revealed through the police reports and investigation by law enforcement may provide grounds to suppress the evidence seized based on Fourth Amendment search and seizure law.

Continue reading "Sleeping in Car Leads to Arrests for Drug Possession and Drug Distribution in Brick, Ocean County, New Jersey Case" »

In the case of State v. Coviello, a New Jersey Appellate Division panel, in a per curiam unpublished decision, ruled that a police officer, who was alerted to an outstanding warrant via a random plate look-up, had the requisite reasonable suspicion necessary to execute the traffic stop that led to the defendant's arrest. In so ruling, the Appellate Division panel reversed a Law Division order suppressing the motor vehicle stop.

In the case, the police officer was on traffic patrol and randomly entered defendant's license plate number into the Mobile Data Terminal installed in his patrol car. Info Cop, a software product that facilitates access to a searchable database of New Jersey DMV records, reported back through the terminal that the plate number entered was registered to an individual with an open warrant on his record.The police officer then executed a traffic stop of the car, which resulted in the defendant's arrest.

The Appellate Division panel ruled that, given the data available to the police officer from his Mobile Data Terminal, the police officer had a reasonable suspicion that stopping the vehicle bearing the license plate number he had entered into the system would enable the execution of the outstanding warrant (either because the driver of the car would be the owner of the vehicle, or because information gathered from the stop would lead to the whereabouts of the owner of the vehicle).

Apparently, the Law Division judge felt the officer did not have the reasonable suspicion necessary to execute the traffic stop; either because he did not have it on the merits, or because he came upon it impermissibly.

With the traffic stop reinstated as permissible, the matter has been remanded to the trial level for reinstatement of the defendant's initial guilty plea to DWI and refusing to submit to a breathalyzer test.

Continue reading "New Jersey Appellate Division Panel Says Open Warrant Alert Through Mobile Data Terminal Provided Police Officer With Reasonable Suspicion To Execute Traffic Stop That Led To Arrest" »

On a cold December night State Police raided an apartment in the 300 block of Richmond Avenue, Point Pleasant Beach, Ocean County, New Jersey. The investigators seized 1.5 lbs. of marijuana; prescription drugs; weapons including brass knuckles, daggers, a machete, metal asp and a BB gun; drug paraphernalia; and $23,350 in cash.

Four individuals were arrested and charged with various drug possession and weapon possession crimes. Two individuals were charged with more serious offenses and released after posting $15,000 full cash bail. These criminal charges will be resolved in the future in New Jersey Superior Court.

The other two individuals were released on criminal summonses for possession of marijuana under 50 grams. These two individuals may be eligible for a conditional discharge in municipal court, if they qualify.

Continue reading "Drugs And Weapons Found At Point Pleasant Beach, Ocean County, New Jersey State Police Raid" »