New Jersey Criminal Defense Attorney Blog

Covering New Jersey and Federal Criminal Law and Procedure

Previously, an alleged victim’s out-of-court identification of a defendant from a photo array was highly problematic.  The primary issue was the extent to which the officer administering the array suggested to the victim which photo should be selected.  This was frequently done by giving the victim positive feedback during the identification procedure, thereby increasing the likelihood that the defendant’s photo would ultimately be the one selected.  To address this issue, New Jersey implemented several changes to the identification procedure including, without limitation, the requirement that the photo array be administered by an officer that has nothing to do with the case.  This officer has no knowledge of the facts of the case, or the identity of the defendant, and is at least theoretically incapable of prompting the victim in any way while the latter reviews the array.  However, and regardless of the procedural protections that have been implemented, problems with out-of-court identifications made from photo arrays persist.  This is significant because of the weight that an out-of-court identification can have upon a jury’s perception of the evidence at trial.  In the recent case of State v. Anthony, our Supreme Court again addressed and enhanced the procedures to be followed when a photo array is administered to a victim or a witness.

The issue in Anthony was the extent to which the officer administering the array must record the responses of the alleged victim or witness to the photos that make up the array.  How are those reactions to be recorded, and how much detail is required?  The facts of the case are not complicated.  Two days after an attempted robbery, the victim went to the police station to review a photo array.  The array was administered by an officer who was not involved in the case and did not know the defendant’s identity.  The officer read a series of instructions to the victim, showed him the array, and recorded his responses on pre-printed forms that the department used to document identification procedures.  On appeal, defense counsel argued that that this procedure was defective because the officer did not memorialize or record the dialog with the victim.  As a result, it was not possible to determine if the officer behaved in a suggestive manner.

In reviewing this case, the Court recalled that prior decisions required that, as a condition to the admissibility of an out-of-court identification, the officers must make a written record detailing the procedure followed which must identify the place where the array was administered, the dialog between the witness and the officer, and the results of the procedure.  The officer must record the witness’s statement of confidence in the witness’s own words. Continue reading

Generally speaking, it is a mistake for individuals who are or may be charged with crimes to give statements to law enforcement officers.  Many people believe they can talk their way out of being charged, but this is simply not true.  Our courts have long acknowledged that the atmosphere in which a statement is given is highly coercive.  Further, officers and investigators are trained to take statements, and the person giving the statement simply lacks the same level of training and experience.  The only thing a person brought in for a statement should say is “I want a lawyer.”  At that point, the interrogation is supposed to stop.

The Miranda warnings exist, and are required, because of the coercive atmosphere of a statement.  In New Jersey, these rights are typically explained orally and in writing, and the subject is supposed to initial and sign a form indicating that they understand and waive their rights.  Further, statements are supposed to be video taped so that a reviewing body (such as a trial court hearing a suppression motion) can both see and hear everything that happened during the statement.  When the subject has limited English language skills, the process, which includes the explanation and acknowledgement of Miranda warnings, should be bilingual.

In State v. A.M., decided in April of this year, our Supreme Court discussed whether a Spanish-speaking defendant who spoke limited English, properly waived his right against self-incrimination.  Defendant was charged with sexually assaulting his granddaughter.  After learning of the incident, officers transported him to the local police department for a statement.  He indicated that he was more comfortable with Spanish.  A Spanish speaking officer translated the interview, which was video-recorded, from English to Spanish.

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Defendants frequently decide to change attorneys while their case is pending before the court.  Substitutions of counsel happen very frequently in criminal cases.  In fact, it is not uncommon for a criminal defendant to change attorneys repeatedly during the course of their case for any number of reasons.  Sometimes, a substitution can occur because the client does not feel the current attorney is paying sufficient attention to their matter.  The client may also feel the attorney is not on track for obtaining the desired result.  Other times, there is simply a clash of personalities.

Both the federal and state Constitutions guarantee an accused the right to effective assistance of counsel.  A basic element of this guarantee is the defendant’s right to the attorney of their choice.  However, a defendant’s right to change attorneys during the case is not absolute; rather, it is balanced against the Court’s calendar and scheduling issues.  Thus, timing and scheduling can affect a client’s decision to change attorneys.  This is particularly true when the defendant decides to change attorneys after a case has been listed for trial, and especially on the eve of trial.

Because changing attorneys almost always result in a delay of proceedings, our State’s Supreme Court has held repeatedly that a trial court must consider the following factors when deciding to allow a substitution of counsel:

a. The length of the requested delay.

b. Whether other adjournments have been requested and granted;

c. The balanced convenience or inconvenience to the litigants, witnesses, counsel and the Court;

d. Whether the requested delay is for legitimate purposes, or whether it is dilatory, purposeful, or contrived;

e. Whether the defendant contributed to the circumstances which give rise to the request for a continuance;

f. Whether the defendant has other competent counsel prepared to try the case;

g. Whether denying the continuance will result in identifiable prejudice to the defendant’s case and, if so, whether this prejudice is of a material or substantial nature;

h. The complexity of the case; and

i. Other relevant factors that may be unique to the matter at bar. Continue reading

Our Supreme Court recently decided State v. Nelson, which addresses the extent to which the police may prolong a traffic stop to investigate suspected criminal activity.

The facts of the case are straight-forward.  A New Jersey state trooper learned from a reliable source that a silver Infiniti with a known plate number driven by an African-American male would be traveling up the Turnpike with a large quantity of marijuana.  The car was spotted shortly after receiving this information, and was pulled over for traffic violations.  Upon approaching the car, the trooper noticed a strong smell of air freshener.  The driver was sweating heavily, and was visibly nervous.  He was asked where he was going, and changed his story repeatedly.  The car contained no personal belongings except for two large bundles in the cargo area.  The driver told the trooper the bags contained shoes from a store he was closing.

The trooper asked for consent to search the car, but this was denied.  At this point, he believed that he had a reasonable and articulable suspicion that a crime was being committed, and asked for a canine search unit to come to the scene.  He made the request at 7:21 pm, and the canine arrived at 7:58 pm.  The dog alerted at the rear hatch, the driver was arrested, and the vehicle was impounded and searched pursuant to a warrant.  The search led to the discovery of 80 pounds of marijuana. Continue reading

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