New Jersey Criminal Defense Attorney Blog

Covering New Jersey and Federal Criminal Law and Procedure

Discovery in New York State criminal cases has long been completely unfair to defendants.  The New York discovery rules have not been substantially revised since 1979.  More than a dozen reform bills that have been introduced over the last 40 years have been successfully blocked by the State’s district attorneys’ association which has argued, among other things, that providing information concerning witnesses places them in danger.

What little discovery was available in New York included something called a “People’s Voluntary Disclosure Statement”.  This basically useless document, which was just a couple of pages in length, was composed of a set of questions and responses drafted by the district attorney’s office with the goal of providing as little case-related information as possible.  Because of the lack of meaningful discovery, motion practice was similarly laughable.  Defense attorneys would typically file an omnibus motion at the beginning of the case seeking every conceivable form of pretrial relief without really knowing what was needed for their case.  Given the absence of information that could be obtained through meaningful discovery procedures, such a motion could not be tailored to the specific needs of a particular case and did little, if anything, to create a record for appeal.

Most criminal cases do not proceed to trial.  In fact, between 95 and 100 percent of all criminal cases nationally resolve by way of plea deal.  Under the prior New York rules, district attorneys were able to withhold information from defense counsel until just prior to trial.  This created two problems.  First, defense attorneys were forced to negotiate and evaluate plea offers with virtually no information.  Defendants were, therefore, placed in the unenviable position of making major decisions concerning their cases with little, if any, information regarding the strengths and weaknesses of the People’s case.  Additionally, if the defendant decided to proceed to trial, counsel would be forced to work through the majority of their trial prep time without important information that could form the basis for investigation of the underlying facts, effective cross-examination of witnesses, and viable defenses.

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Anyone with a narcotics-related case – regardless of how simple or complicated the facts may be – has been in this situation.  Defense counsel is able to negotiate an acceptable plea deal with the prosecutor which requires their client to, among other things, forfeit property seized at the time of arrest.  The property can be anything that was allegedly connected to the drug-related activities, but frequently includes cash and/or a vehicle.  The State obtains the property in one of two ways.  First, it can commence a civil forfeiture action with an eye toward obtaining a judgment that eliminates the defendant’s right in or to the property and turns it over to the State.  It can also require the defendant to execute a consent judgment at the time of the plea or sentencing.  Cash, which the State held in an account pending resolution of the criminal case, then becomes State property.

Vehicles and other items may be sold by the State.  Occasionally, if a car is deemed suitable, it may also be outfitted with the necessary equipment and then used by the police for law enforcement activities.  I have also had cases where the State allowed my client to “redeem” a vehicle.  This required my client to purchase their vehicle back from the State at fair market value.  Thus, the client or the vehicle’s owner effectively purchased their car a second time.  The fact that the car was financed and had a bank lien on it was irrelevant to any determination of the amount of money sought by the State.  As with forfeited cash, the proceeds of any vehicle sale or redemption go the State and, at least according to what we are told, are used to help finance law enforcement activities.

This is an issue of considerable magnitude since it goes directly to budget and funding decisions on every level of government. On February 20, 2019, the United States Supreme Court decided Timbs v. Indiana, No. 17-1091.  This decision should have a dramatic effect on forfeiture proceedings that are related to criminal cases. Continue reading

Our Supreme Court decided State v. Brown on February 4, 2019.  The case is very significant because it addresses the ongoing issue of the State’s obligation to produce discovery in a timely manner.

The facts surrounding the discovery violation and its ramifications in this case are somewhat complex.  Suffice it to say that a week after the start of trial – after jury selection, opening statements and the examination of four State witnesses – the prosecutor produced 18 reports to defense counsel.  These reports concerned facts discussed in the testimony of the officers who had already testified.  The following week, the prosecutor produced yet another item of discovery.  Ultimately, the defendants were convicted of murder, robbery and a weapons offense.  The trial court denied their post-trial motions and imposed sentence, and the Appellate Division affirmed their convictions and sentences.

The Supreme Court reversed and ordered a new trial.  The Court found, among other things, that the State’s failure to produce the underlying discovery items until after the commencement of trial was a violation of Brady vs. Maryland, which requires the State to turn over exculpatory material prior to trial.  The failure to timely provide the discovery at issue to the defense inhibited counsel’s ability to cross-examine witnesses in a meaningful way, to impeach witnesses, and to present exculpatory evidence and evidence of third-party guilt.

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Criminal justice reform in New Jersey is now two years old.  As we gain more experience with the underlying rules and  procedures, it is worth reviewing whether they are achieving their stated goals and the effect they are having on our criminal justice system.  State v. Hyppolite, recently decided by the New Jersey Supreme Court, discusses the State’s discovery obligations prior to a detention hearing, and what happens when the prosecutor fails to meet it.

Hyppolite stemmed from a shooting and homicide in Jersey City.  The police identified Michael Gregg as a witness and interviewed him on two separate occasions.  Gregg gave his first statement shortly after the shooting, and said that he heard three to four shots but did not see the shooter.  Some months later, he gave a second statement where he, among other things, identified the defendant as the shooter.  The defendant was arrested and charged with murder and weapons offenses, and the probable cause affidavit submitted in support of the complaint stated that he was positively identified as the shooter by an eyewitness.  The State moved for pretrial detention, and produced by way of discovery materials regarding Gregg’s second statement, but failed to provide any information concerning the first statement.  The Court ordered the defendant to be detained.

The State subsequently produced additional discovery after the defendant was indicted, including materials concerning Gregg’s first statement, recordings of interviews of other alleged witnesses which contradicted Gregg’s version of events, and an application for a communications data warrant for Gregg’s phone.  This was the first time defense counsel received this material.  Counsel moved to re-open the detention hearing.  The trial court denied the application, and the Appellate Division denied leave to appeal  The Supreme Court, however, granted leave to appeal.

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This past November, the New Jersey Supreme Court decided State v. Kiriakakis.  There the Court upheld the constitutionality of a sentence within the range authorized by a jury verdict that included a mandatory period of parole ineligibility, or parole disqualifier.

Understanding this holding requires a review of basic sentencing concepts.  First, the New Jersey Code of Criminal Justice authorizes ranges of sentences for different degrees of criminal offenses.  Generally speaking, someone convicted of a fourth degree offense can receive a sentence of up to 18 months.  A third degree offender can receive a sentence within a range of three to five years.   A second degree offender can be sentenced to between five and ten years.  With some notable exceptions not relevant here, a first degree offender can be sentenced within a range of ten to twenty years.  A sentence for a particular defendant within the statutory range is supposed to be based upon a balancing of aggravating and mitigating factors that are also listed in the sentencing section of the Code.  These factors are supposed to help guide the judge to customize the sentence to the needs of the case.  Our judges have considerable discretion to impose sentences within the applicable statutory ranges, so long as they follow the proper procedures.

Sentencing involves more than just setting a number within a range based upon a balancing of factors listed in the statute.  Some sentences are a “flat” number, which is simply a term of years standing alone.  However, sentences can, and often are, composed of two separate numbers.  The “top” number is the highest or outside number of years that a defendant will serve.  The “bottom” number is the amount of time that a defendant must serve before becoming eligible for parole.  The latter may be referreed to as a “period of parole ineligibility”, “parole disqualifier”, or “stip”.  (Both of these numbers can be reduced by “credits”, but that issue is not relevant here). Continue reading

Clients often become concerned when they hear their attorney discuss plea deals soon after being retained.  This concern is magnified when they go to court and hear the prosecutor and judge focus on pleading the case.  Indeed, many clients believe that their defense attorney is trying to just get them to plead guilty so that the attorney can complete the case as quickly, and with as little effort, as possible, or that the judge is simply trying to get rid of their case by somehow forcing them to plead it out.  None of this is true.

The fact is that the overwhelming majority of criminal cases in both state and federal courts throughout the country resolve by way of guilty plea.  This is because our system is basically designed, at least initially, to plead cases.  First, we do not have the resources to try every case.  If every defendant proceeded to trial, it would break the system’s back.  Further, it is not unusual for a defendant to find themselves in a position where the proofs in their case are such that a result reached by way of negotiated plea will be more favorable than one reached by way of jury verdict after trial.  Moreover, if an attorney is devoting considerable time and effort to discussing plea deals, that means they are doing their job.  It is the attorney’s obligation to be sure that the client understands all of their options, which include pleading the case out as opposed to going to trial.  The judge hearing the case is going to expect that the defendant was so informed, and the ethics rules require it.  With that said, if the client still wants a trial after listening to the attorney’s explanation of proposed plea deals, it is the client’s right to reject the plea deal and the attorney’s obligation to try the case.

These basic principles apply in all jurisdictions, although different courts implement them using their own unique procedures.  For example, defendants in the federal system are required to complete and sign elaborate forms that describe their plea arrangement in some detail, and the judge taking the plea will review the contents of the form with them on the record at the plea hearing.  The New Jersey Superior Court uses forms in criminal pleas that are even more detailed than those used in the federal system.  Until recently, these forms were used only in adult criminal cases.  Significantly, our Superior Court has now started requiring plea forms in juvenile cases.  However, the New York State criminal courts do not use explanatory forms for plea deals, although the judge will explain the terms and conditions of any plea arrangement to the defendant on the record at the plea hearing. Continue reading

Bail Reform went into effect in New Jersey almost two years ago.  Its stated goals included, among other things, a reduction in jail populations.  At the heart of this issue was the implementation of a screening tool known as a Public Safety Assessment, or “PSA”, which is prepared by Pre-Trial Services.  The PSA is basically a scoresheet that evaluates each defendant to determine what, if any, terms of pre-trial release should be imposed by the Court, or if the defendant should be remanded to a county jail.  The PSA is used on a State-wide basis.  In other words, it is used in all counties for all defendants in the Superior Court.

I have always believed that the PSA is problematic because of its “one-size-fits-all” approach to the State’s defendant population.  I also believe that this concern is supported by the fact that the algorithm underlying the PSA does not account for all individual variations that may exist between and among all defendants.  Given that we have now had some experience with bail reform and the PSA, this may be a good time to take a hard look at the new pre-trial release procedures to see how well they work within the larger context of our State’s criminal justice system.

We can all agree that every jurisdiction wants to reduce its jail population.  Toward that end, New Jersey has not been the only state to adopt some sort of bail reform.  States all over the country are doing the same thing for the same reasons.  This is not surprising given the national experience over the last several decades.  We know that inmate populations have been rising nationally for decades.  In 1970, daily local jail populations were at about 157,000 inmates.  By 2015, that number exceeded 700,000.  Close to 11,000,000 people are  admitted into jails annually in this country.  Given these staggering numbers, coupled with the costs associated with building and maintaining jails as well as the societal costs stemming from incarceration, we need to constantly ask if enough is being done to reduce our jail populations to the lowest possible levels. Continue reading

The face of the United States Supreme Court has changed considerably in a relatively short time.  Two very conservative judges – Brett Kavanaugh and Neil Gorsuch – have now joined the bench.  At least in some circles, it was believed that Gorsuch’s appointment would not have a monumental impact since he was replacing Antonin Scalia, who was a reliably conservative vote.  Now that Kavanaugh has been confirmed and sworn in, there is a solid five-judge conservative voting bloc,  As a result, defense attorneys need to be mindful of possible changes in the following areas:

Search and Seizure – The exclusionary rule is a judicial remedy designed to exclude evidence discovered as a result of police misconduct.  Essentially, the rule states that when tainted evidence is obtained as a result of wrongdoing by law enforcement, other evidence stemming from the original evidence is “fruit of the poisonous tree”, and must also be suppressed.  Justice Kennedy, who Kavanaugh replaced, was not a major fan of Mapp v. Ohio, which applied the exclusionary rule to the states.  Kavanaugh’s anticipated opposition to the exclusionary rule may send a message to prosecutors that it is to be overturned.  Given Kavanaugh’s history, do not be surprised if prosecutors start arguing that Mapp is to be reconsidered or overruled.  In fact, there may now be five votes on the Court that would hold in this way.  This momentous change would, in essence, allow law enforcement officers to ignore constitutional protections when collecting evidence.

Gun Rights – The Court previously took relatively few gun cases, but its new conservative majority will probably start reading the Second Amendment more broadly.  As a result, there will almost certainly be more cases that address the scope of gun control.  In fact, Justices Thomas and Alito, as well as Justice Gorsuch, have previously sought unsuccessfully to rule on more Second Amendment cases.  With Kavanaugh now on the bench, the “rule of four”, which allows four of the nine justices to grant cert, would be satisfied thereby adding additional gun control cases to the Court’s docket.  Thus, open issues, such as whether the right to bear arms outside the home, may be addressed.  The Court may also be asked soon to rule on issues concerning concealed carry permits, and on the validity of laws banning assault rifles. Continue reading

We all have the experience every time we shop online.  Once we view or purchase an item on a particular website, ads for that site pop up everywhere we go online.  Online sellers are tracking our search habits so as to market and sell their merchandise.  We are, in fact, all being tracked online by companies like Amazon and Google that collect all kinds of information on users.  But retailers are not the only entities interested in collecting data from online sources.

“Predictive Policing” and “Precision Policing”, both of which include various data collection strategies, are being used increasingly by police departments around the country.  Generally speaking, the idea is to quantify, “data-fy” and control communities based upon the analysis of information collected online.  Sometimes, the information is purchased from data brokers.  However, law enforcement agencies are also developing their own internal collection systems.  For example, New York and Los Angeles continue to develop extensive gang databases.  In fact, Los Angeles has partnered with an entity called Palantir, whose technology has been utilized by the U.S. military and U.S. intelligence to track terrorists globally.  Much of the information is collected from social media including Facebook, Twitter, Youtube, Instagram, Tumblr, Pinterest, and the like.  The data is used to track individuals and groups who are deemed “high risk”.

Further, improved technology continues to give law enforcement the ability to collect, analyze and collate data from multiple sources.  For example, New York City has approximately 9,000 linked surveillance cameras in Manhattan.  This network affords the police the opportunity to view almost every street in the borough.  Currently, the system can go back as far as one month, and can track individuals wearing unique clothing such as a hat or shirt with a particular insignia, as well as track the time or place that a particular car is driven through an area.  The Chicago Police Department is using something called a “Heat List” which grades how dangerous someone is using a threat score of 1 to 500.  When someone is pulled over in what may start as a routine traffic stop, a threat score appears on the officer’s dashboard computer, ostensibly giving the officer some idea of how to approach the subject.

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This blog has previously addressed the fact that the statistics describing the state of the juvenile justice system in this country are alarming.  About 53,000 juveniles are incarcerated on any given day in the United States.  Many jurisdictions report recidivism rates exceeding 50% during a one to three year period.  We have also learned that education is closely linked to criminal behavior.  Incarcerated juveniles are 13% less likely to complete high school, and 22% more likely to be incarcerated as adults.  At least one study estimates that 200,000 young offenders are tried sentenced, and/or incarcerated as adults each year, and juveniles in the adult system are between 34% and 77% more likely to be re-arrested.

We have also recognized that juvenile involvement with the criminal justice system stems, at least in part, from the fact that a young person’s brain is underdeveloped relative to that of an adult.  A series of United States Supreme Court decisions delivered over the last few years found that this leads young offenders to make poor decisions that result in criminal conduct.  It also prevents juveniles from fully appreciating the consequences of their conduct.

None of this is new.  In fact, we have known about all of these facts and issues for some time.  However, a new approach to dealing with juvenile crime, as well as kids who are at risk for becoming criminally involved, has already shown considerable promise. Continue reading