New Jersey Lawyer News

December 12, 2016

20-minute Observation Rule for DWI Defense in New Jersey

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).

December 9, 2016

New Rules for Employment-Based Immigrants and Non-Immigrants EAD for E, H, O, L status holders, 60-day grace period

by Lubiner, Schmidt & Palumbo, LLC

The United States Citizenship and Immigration Services (USCIS) published a final rule to improve aspects of certain employment-based immigrant and nonimmigrant visa programs. Preexisting regulations have been amended to enable US employers to hire and retain foreign workers who are beneficiaries of approved employment-based visa petitions as they wait to become lawful, permanent residents. The rule positions nonimmigrant workers to further their careers by accepting promotions, changing positions within current employers, and pursuing other job opportunities.

These changes will expand the class of workers eligible to apply for an Employment Authorization Document (EAD), setting guidelines on when an employment-based immigrant may retain his or her “priority date” after departing from their employers. Among the more notable provisions, the rule permits persons of E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status to apply for an EAD, provided they meet certain conditions:

Applicant is the beneficiary of an approved employment-based immigration visa petition

December 8, 2016

Rescind and Forget: What Executive Actions Can President-elect Trump “Undo” Once He Is Sworn In?

by Lubiner, Schmidt & Palumbo, LLC

To constituents, executive actions may seem like simple maneuvers—quick fixes to a discordant Supreme Court or a disagreeing Congress. But to those who have held Presidential office, executive actions have shown themselves to be much more complex. Each comes with its own set of statutorily or judicially imposed restraints. Some actions are subject to modification or even revocation while others must comply with certain mandated procedures; all actions, though, fall subject to a lack of permanence and are often withdrawn just as swiftly as they were first put into place.

Most executive actions can be broken down into three basic categories:

Executive orders, which are written directions issued by the incumbent President that govern actions of executive branch officials as well as government agencies

December 7, 2016

Attempt under the New Jersey Criminal Code

by Lubiner, Schmidt & Palumbo, LLC

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

December 6, 2016

Conspiracy under the New Jersey Criminal Code

by Lubiner, Schmidt & Palumbo, LLC

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.

November 29, 2016

Shoplifting Defense Success Story for Three Clients

by Lubiner, Schmidt & Palumbo, LLC

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, 4^th 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.

November 17, 2016

State v Benjamin examines the Discretion of the Prosecutor when Denying Graves Act Waiver in Gun Cases.

by Lubiner, Schmidt & Palumbo, LLC

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).

November 8, 2016

Expanded Provisional Waiver gives overstaying and undocumented immigrants additional options to get a green card.

by Lubiner, Schmidt & Palumbo, LLC

What’s Changed

On August 29, 2016, a final rule, expanding the existing provisional waiver process to allow spouses and children of U.S. citizens and lawful permanent residents to more easily navigate the immigration process, went into effect.

U.S. Citizenship and Immigration Services (USCIS) extended eligibility for the provisional waiver process to all individuals who are statutorily qualified for immigrant visas. First established in 2013, the provisional unlawful presence waiver process, put into place with the purpose of supporting family unity, allows immediate relatives, family-sponsored or employment-based immigrants, as well as Diversity Visa selectees to apply for a waiver of inadmissibility in the United States before they depart for their immigrant visa interview.

November 3, 2016

Informants Privilege Under the New Jersey Rules of Evidence

by Lubiner, Schmidt & Palumbo, LLC

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.

November 2, 2016

When to Petition for Post-Conviction Relief in DUI/DWI Case in New Jersey?

by Lubiner, Schmidt & Palumbo, LLC

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…