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Articles Posted in Criminal Defense

In New Jersey, a request for consent to perform a search is a commonly used tactic by police, especially in drug/controlled dangerous substance and firearms cases. Receiving consent may permit law enforcement to search your personal property, car, even your home without a warrant. Per the 4th Amendment of the US Constitution and  Article I, Paragraph 7 of the New Jersey Constitution, a warrant or probable cause is necessary for law enforcement to be able to execute a search. Consent searches are a way for law enforcement to get around the warrant requirement, but are problematic in several respects.  

Who is the appropriate party to grant consent to search the property? What is the scope of the consent? Can the police pressure someone into consenting? What is the potential to have any evidence obtained by the police, i.e. weapons, drugs, tossed out of court or suppressed if the consent given to search was not valid?

The Fourth Amendment requires that consent for a search must be voluntarily given and not the result of duress or coercion.  The New Jersey Supreme Court in State v King listed multiple factors in gauging whether the consent was voluntary such as:

In a DWI prosecution under N.J.S.A. 39:4–50 and 39:4-50(a) police must observe an individual uninterrupted for 20 minutes. As simple as it may seem to observe an individual for an uninterrupted period of 20 minutes, it is frequently the case that the State has a hard time establishing that this procedural requirement was met. Our attorneys have on multiple occasions been able to prove that the twenty-minute observation period was broken and the results of the Alcotest, commonly referred to as the breathalyzer, have as result been suppressed.

In New Jersey if you’re arrested on suspicion of driving while intoxicated (DWI) there are certain procedural safeguards that must be obeyed by law enforcement. One of the most essential safeguards in DWI defense as dictated by the New Jersey Supreme Court is that law enforcement must observe you for 20 minutes before a Alcotest, commonly referred to as a Breathalyzer, can be administered.

Law enforcement operating the Alcotest must wait 20 minutes to ensure no outside samples interfere with the performance of the test and provide overestimated readings. As stated by the New Jersey Supreme Court in State v. Chun, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person’s mouth, the operator is required to begin counting the twenty-minute period anew. State v. Chun, 194 N.J. 54 (N.J. 2008).

A person is guilty of attempt under the New Jersey Criminal Code N.J.S.A. 2C: 5-1 in one of three scenarios:

1)      If the person purposefully engages in conduct which would constitute a crime if the circumstances were as a reasonable person would believe them to be,

2)      If causing a certain result is an element of a crime, the person does or omits to do anything with the purpose of causing such element to occur

Under the New Jersey Criminal Code, N.J.S.A 2c:5-2 a person is guilty of conspiracy if he/she agrees with another person/persons to engage in conduct or aide another person in conduct that constitutes the commission of a crime. A conspiracy that contains multiple objectives will still only result in one conspiracy charge so long as the multiple crimes are the result of one agreement.

Conspiracy requires an “overt act” in furtherance of the stated objective. The New Jersey Supreme Court has held that the State is not required to present “direct evidence” that an overt act took place. In a mob trial involving membership in the Colombo family of La Cosa Nostra the court held that so long as other evidence was presented during trial to permit the jury to infer that an overt act did not take place direct evidence is not required. State v. Cagno, 211 N.J. 488 (N.J. 2012)

There is no need for the actual crime to be committed or for the object of the conspiracy to be achieved for someone to be found guilty.

The attorneys of Lubiner, Schmidt & Palumbo appeared in municipal courts across three different municipalities to represent clients facing shoplifting charges. Shoplifting is defined in Title 2C:20-11 of the New Jersey Criminal Code. The charge includes not only purposely taking store merchandise, but also purposefully concealing merchandise or altering or removing any price tag or label. The degree of shoplifting or the severity of sentencing primarily depends on the retail value of the items taken or the pecuniary loss sustained by the shopkeeper or store. Under Title 2C:20-11 shoplifting is a second degree crime if the value of merchandise taken is $75,000 or greater, third degree if greater than $500 but less than $75,000, 4th degree crime if at least $200 but does not exceed $500, and only a disorderly person offense if the amount is less than $200.

One of the key aspects of formulating a defense to shoplifting is discovery requests from the state. All three of the defendants being represented by Lubiner, Schmidt & Palumbo had been in and out of court for many months. As defense attorneys in these shoplifting cases, we utilized critical strategies, including procedural arguments rebutting the production of discovery, in an effort to dismiss flawed charges. Most notably, the prosecutor(s) from each case had failed to produce discovery by neglecting to bring forth proper video footage of each alleged theft.

Generally, a court should not dismiss a case for failure to produce discovery. However, in State v. Holup, the court held that if the appropriate motion is filed giving the notice that discovery was not produced in a case, with a request that a time be set by the court for the production of said discovery, then a failure to do so after the court’s set time may lead to a dismissal of the counsel’s charges.  Such motions are more commonly referred to as Holup Orders.

State v Benjamin is a currently pending decision by the New Jersey Supreme Court, in which the defendant was denied a Graves Act sentencing waiver that would have reduced his sentence by 30 months. Under normal circumstances, when convicted of unlawfully carrying a firearm in violation of N.J.S.A. 2C:35-5b, the mandatory minimum sentence is 42 months in state prison. However, some individuals may qualify for a waiver of this mandatory sentence and be sentenced to a 1 year mandatory minimum sentence or probation with the consent of the prosecutor.

The prosecutor may refuse to sign off on this waiver, also known as an “escape valve” for a number of reasons including a significant prior record, the nature and circumstances of the offense, or gang affiliation (to name a few). But what happens when the defendant feels that they do fall within a category of defendant that deserves this waiver or escape valve but is denied by the prosecutor’s office?

The defense has the burden of proof in making an “Alvarez motion” which is the name of the motion that must be made to the court in order for the defendant to be granted a waiver under the Graves Act minimum mandatory sentencing guidelines. The defense must demonstrate to the court “that the prosecutor arbitrarily or unconstitutionally discriminated against a defendant in determining whether the interest of justice warrant reference to the Assignment Judge for sentencing under the escape valve.” State v. Mastapeter, 290 N.J. Super. 56, 65 (App. Div.) (citation omitted), certif. denied, 146 N.J. 569 (1996).

Informants Privilege Under the New Jersey Rules of Evidence

In New Jersey, law enforcement routinely relies on informants in assisting narcotics investigations and drug prosecutions. In another article entitled New Jersey Discovery Rules for Cooperating Witness/Confidential Informant in Drug Cases we outlined what is discoverable information in a criminal case that involves police use of a cooperating witness. In addition to the limitations discussed in the previous article, specifically that defense may not be able to obtain use of cooperating witness in drug prosecutions not related to prosecution presently before the court, there is another limitation known as the “informants privilege.”

The informants privilege, contained in New Jersey Rules of Evidence 516, permits the State of New Jersey to refuse to disclose the identity of a confidential informant, unless certain information is presented to the court. Defense must show either that the identity of the informant has already been disclosed or that disclosure of the identity of the informant “is essential to assure fair determination of the issues.” What constitutes a “fair determination of the issues” was discussed in State v. Milligan.

When choosing an attorney for a second or subsequent offense of DWI, it is critical that you consider legal counsel with the foresight to know when to petition for post-conviction relief. The “Laurick Rule,” as derived from the final ruling of the 1990 State v Laurick case, is used in New Jersey as a means to lighten a sentencing, allowing relief from incarceration if you were not represented by legal counsel in one or more prior DWI/DUI cases.  If you were without legal counsel at your previous DWI hearings, you may be eligible to use the Laurick application, which could alter the outcome of a previous ruling.

In this particular case, the defendant, David Laurick, was convicted by a municipal court in the state of New Jersey of driving while intoxicated.  He had been convicted of the same offense once prior, hence, in accordance with N.J.S.A. 39:4-50(a)(2), Laurick was subject to the following penalties as a second-time offender:

For a second violation [of operating a motor vehicle while under the influence of intoxicating liquor], a person shall be subject to a fine of not less that $500.00 nor more than $1000.00, and shall be ordered by the court to perform community service for a period of 30 days, which shall be of such form and on such terms as the court shall deem appropriate under the circumstances, and shall be sentenced to imprisonment for a term of not less than 48 consecutive hours, which shall not be suspended or served on probation, nor more than 90 days, and shall forfeit the right to operate a motor vehicle over the highways of this State for a period of two years upon conviction…

New Jersey law enforcement routinely rely on cooperating witnesses or confidential informants in making drug arrests. In a recent example, a man was arrested in Sussex, NJ on September 2016 and charged with various drug related offenses under the New Jersey Criminal Code. The charges included first-degree possession with intent to distribute cocaine in violation of N.J.S.A. 2C:35-5b(3), second-degree possession with intent to distribute crack cocaine and heroin, and third degree possession with intent to distribute methamphetamine.

The police relied on a cooperating witness from the Sussex County Narcotics Task Force to make the arrest. The cooperating witness purchased from the defendant and the task force also made controlled buys of cocaine.

When the state uses cooperating witnesses in a drug sting operation a defendant has a right to discovery of certain information relating to the cooperating witness. Discovery Rule 3:13-3(b) generally requires that the State provide all evidence relevant to the defense of criminal charges. Rule 3:13(b) states that discovery “shall include all exculpatory information and relevant material.” Evidence is relevant if it has any tendency to prove or disprove a fact of consequence in the determination of the action. In a recently decided New Jersey Supreme Court case, State v. Hernandez, the court held that the States discovery obligations extend to providing material evidence affecting the credibility of the States cooperating witness. State v. Hernandez, 225 N.J. 451, (N.J. 2016).

As stated by the New Jersey Supreme Court, millions of adults nationwide have criminal records that impact their reentry into society, often for many years after their sentence is complete. Criminal records present barriers to employment, licensing, housing, and school applications, among other things. In re Kollman, 210 N.J. 557  (N.J. 2012)

The New Jersey State legislature in an effort to afford a second chance to certain offenders enacted a law, allowing for the expungement of criminal records from public record. N.J.S.A. 2C:52–2(a) Under the revised expungement law the New Jersey legislature slashed the time extent for defendants to apply for expungement from at least ten years after completion of a sentence to five years, under what is referred to as the “early pathway to expungement.” N.J.S.A. 2C:52–2(a)(2).

The new expungement statute states that if at least five years has expired from the date of conviction, fine, completion of probation or parole, or release from incarceration, an individual may then petition the court for record expungement. The New Jersey expungement statute adds that in order to be eligible, the individual must not have been convicted of a crime, nor received a disorderly person’s offense, nor petty disorderly person’s offense, since the time of the conviction. According to the statute, your record will be expunged only if the court finds that expungement is in the public interest—taking into account the nature of the offense, as well as the individual’s character and conduct since conviction.

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