New Jersey Criminal Lawyers Blog

In a recent United States Supreme Court case (Bullcoming v. New Mexico), a defendant's DWI conviction was reversed and remanded on Constitutional grounds. The opinion of the highest court in the land is of course binding on all inferior courts in the United States. The principle at issue was a defendant's constitutional right to confront witnesses that present testimony or evidence used to prove his guilt. The confrontation clause is in place so that a defendant may confront his accusers so as to ensure a fair trial.

The underlying issue at question was whether or not a lab report showing a defendant's blood alcohol content (BAC) may be admitted into evidence during DWI proceedings without corroborating testimony by the analyst who actually prepared the report. The government attempted to submit in person testimony of another analyst who worked at the particular lab but did not prepare the defendant's actual report. This was problematic for the defendant and the Supreme Court. Since the analyst who was present at the trial could not answer specific questions regarding the preparation of the defendant's lab report, the court ruled that the admittance of the lab report itself was violative of the Federal Rules of Evidence and the Confrontation Clause.

The court also ruled that report was purely testimonial in nature. When a report is testimonial, it can mean that the report was specifically prepared in preparation of litigation. Here, it is clear that the lab report (measuring blood alcohol content) was only prepared to show that the defendant was intoxicated while driving his motor vehicle. The report was in fact key evidence and essential to the case. Because the defendant could not question the analyst who prepared the report, it's validity, authenticity, and process could not be ascertained with certainty.

There are a few exceptions that would allow the report without the corroborating testimony of the analyst. If the analyst was not available to testify, the lab report could be submitted without him or her. There are very stringent standards, however, to show that he is not available to testify. Another exception could be that the defendant had an opportunity to cross-examine the analyst pre-trial (either by deposition or interrogatory).

The right to confront an accuser is a fundamental right granted under the United States Constitution and it applies in every courtroom in the United States. If you believe that you're right to confrontation has been violated, contact an experienced DWI attorney who can navigate your legal issues. It is important to obtain counsel that is knowledgeable in DWI, DUI, and Refusal proceedings in New Jersey to protect your rights.

Continue reading "Confrontation Clause of the United States Constitution Finds It's Way into DWI Proceedings Through the U.S. Supreme Court; New Jersey Courts must follow!" »

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.

Police departments all over the nation are experiencing layoffs as local governments seek to right their budgets against the backdrop of the enduring recession. Paula Scully, in a story posted at APP.com, the Asbury Park Press' website, on October 8, reports that 11 of Little Egg Harbor Township's 49 sworn police offices were laid off. The lay-offs follow the local police union's (Policemen's Benevolent Association Local 295) rejection of the latest compromise proposal made by the Township.

Mayor Ray Gormley said the eleven officers were laid off effective Thursday. The Mayor noted the original number of planned lay-offs was twelve, but that one of the twelve officer positions had been preserved.

Not all matters have been settled by the lay-offs, and the mayor notes negotiations continue in order to arrive at an enduring resolution. PBA attorney Stuart Alterman noted that the union had made a series of concessions to the Township, but that the latest counteroffer from the Township, which was rejected by the union as a body, simply asked for more than the officers who make up the membership of the union were willing to give.

In Paula Scully's story from APP.com, Mr. Alterman referenced the level and serious nature of crime in Little Egg Harbor. Speaking of the Little Egg Harbor Township police force, Mr. Alterman said,

"Now that a fourth of the police force is gone, criminals will be reading the newspaper and wandering over to Little Egg Harbor..."

Whether or not the lay-offs will result in a Little Egg Harbor crime wave is unclear, and certainly is a result not to be hoped for. Nevertheless, Mr. Alterman voices an apprehension shared by many when it comes to significant lay-offs of police officers, wherever they occur. One of the indisputable functions of government is to maintain the peace. Little Egg Harbor Township's civilian and police leadership will now have to make due with less, with a core function of governmental responsibility.

Chris Mergerian, reporting in the October 4th edition of the Star Ledger, writes that between November 3rd and 6th, New Jersey state officials expect thousands of fugitives with outstanding warrants to surrender as part of the State's third Safe Surrender program. New Jersey's Safe Surrender program is part of a broader initiative by public officials and law enforcement in states throughout the nation. New Jersey's third Safe Surrender program will be held in the Somerset section of Franklin Township.

The State's first Safe Surrender program took place in the City of Camden in 2008, and 2,245 individuals surrendered. Last year the City of Newark hosted New Jersey's second Safe Surrender program, and 4,103 individuals surrendered.

The program essentially allows individuals who are fugitives from the law to surrender without suffering a penalty for having been a fugitive. The underlying warrants an individual has on their record still must be adjudicated, but there is generally no penalty for having failed to appear in court in the past.

For November's Safe Surrender program, individuals with outstanding warrants can turn themselves in at the First Baptist Church of Lincoln Gardens, and their cases will be adjudicated close by at the McKinley Community School in New Brunswick.

Supporters of the Safe Surrender program within the law enforcement community believe the program presents a win-win situation to law enforcement and fugitives. As Chris Mergerian reports:

"Law-enforcement officials said the program benefits both police and individuals with outstanding warrants. Police don't have to mount risky operations to capture fugitives, and people have a chance to start fresh by clearing their records."

Parole Board chairman James Plousis adds that the Safe Surrender program makes economic sense as well. Again, from the Star Ledger story:

"We're doing it [the program] for a fraction of what it would cost to go arrest these people. And we're getting these people back as productive citizens."

In the Star Ledger story, past participants in New Jersey have noted how the program allowed them to get their outstanding warrants behind them, and to rejoin society as full- fledged citizens who no longer have to live outside the law.

This year officials are expecting 2,500 individuals to take advantage of New Jersey's third the Safe Surrender program.

Individuals considering surrendering through the Safe Surrender program should consult with an experienced criminal defense attorney prior to the surrender period to discuss the possible disposition of their matter and to be advised of their legal rights.

SOURCE:

New Jersey State Parole Board, press release entitled, "NJ Fugitives Get Chance to Surrender Safely," dated October 4, 2010.

nj.com, "Officials to announce N.J.'s third safe-surrender program in Somerset County" by Chris Megerian, October 4, 2010.