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!" »

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 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" »

In the recent case of the State of New Jersey v. Morales, a New Jersey appellate panel, in a per curiam decision, reversed a trial court's denial of a defendant's post-conviction relief petition based on ineffective assistance of counsel. The appeals panel has remanded the case back to the trial court for reconsideration of defendant's petition. In remanding the issue back to the trial court, the appeals panel found that the trial court had acted too quickly in concluding the defendant was not entitled to post-conviction relief. The defendant's petition for post-conviction relief was based upon his contention that his lawyer should have moved for a mistrial when the jury deciding the defendant's case saw him being transported in handcuffs.

The appeals panel held that the defendant is entitled to a hearing wherein the credibility of his claim that he was seen by the jury in handcuffs can be determined. Presumably, the trial court's dismissal of the defendant's claim was based, at least in part, on the trial judge's belief that the defendant's claim was not credible, and not that, if true, it did not matter.

Though perhaps surprising to many outside the law enforcement and legal communities, a jury seeing a defendant in handcuffs can be, and often is, a constitutionally significant event. Over the years, judicial precedent has determined that it may be unconstitutionally prejudicial to the interest of defendants to show them before the trier of fact in such a way as to suggest their guilt, or that they are dangerous.

Leading the defendant to and from court in handcuffs may be, in certain circumstances, an example of such a prejudicial showing. Another example is where a defendant is surrounded by police or prison personnel in court.

The reason the courts have this general aversion toward a prejudicial portrayal of a defendant in a court proceeding before the trier of fact is our allegiance as a society to the foundational principle that a defendant in a criminal trial is presumed innocent until the state proves otherwise through the prescribed judicial process. It follows that any portrayal of a defendant that tends to short-circuit the deliberative judicial process by which a citizen is deprived of his or her freedom, in the absence of a countervailing and important interest of the state, is repellant.

Of course, there are some defendants who have convincingly demonstrated their dangerousness and respecting whom it has been found constitutionally permissible to restrain in court. Other defendant's have actually been gagged or removed from court proceedings for being serially and incorrigibly disruptive.

As with so many other issues in the criminal law context, what is constitutionally permissible with respect to the portrayal of a defendant in court comes down to a balancing between the interests of society on the one hand, and the interests of the defendant on the other.

In the State of New Jersey v. Morales, the hearing to determine the credibility of the defendant's claim is a threshold inquiry, which, if passed by the defendant, will lead to a consideration of the merit of the charge that would then be assumed to be true.

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