New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Articles Posted in Criminal Appeals

We have written before about federal sentencing issues.  A recent US Supreme Court decision again focuses our attention on this important topic and, specifically, the central role that the advisory guidelines play in the federal sentencing process, and how sentencing mistakes can – and should – be corrected.

By way of background, sentencing in federal cases is governed largely by the the advisory sentencing guidelines promulgated by the United States Sentencing Commission.  The concept underlying the advisory guidelines is relatively simple.  They are designed to promote uniformity in sentencing.  Thus, if two defendants with roughly similar backgrounds are convicted of the same offense and appear for sentencing before two different judges in two different jurisdictions, the advisory guidelines help ensure that the defendants will receive roughly the same sentence.  In this respect, the guidelines restrict the discretion of the sentencing judge.

The central role of the advisory guidelines in federal sentencing cannot be overstated.  As a general matter, current law does not require  judges to impose the sentence that the guidelines contemplate for a particular offense, which is why defense attorneys (and some of the more intellectually honest US Attorneys) refer to them as “advisory”.  There is a list of factors in the federal sentencing statute that district court judges are supposed to consider when fashioning a sentence in a particular case, and the guidelines is one of the items on that list.  However, unless there is a good reason to “depart” or “vary” from a guidelines sentence, most judges will typically sentence a defendant within the guidelines range for the offense at issue.  This is because a “within range” sentence is presumed reasonable, so the likelihood of reversal for a sentencing error is reduced.  (In the simplest sense, “departures” and “variances” are reasons to sentence a defendant to something less that what the guidelines call for.  They are not easily obtained, and are not available in every case.) Continue reading

Every participant in a jury trial has a defined role.  The judge manages the trial and acts as a judge of the law.  S/he will rule on legal issues that arise during pre-trial proceedings, supervise jury selection, rule on issues of law that arise during trial, instruct the jury on the applicable law, and then supervise jury deliberations.  The State and defendant each have their own lawyers who present evidence, challenge and test the evidence of their opponent, and generally advocate their client’s position.  The jury is the judge of the facts.  It listens to the evidence presented in the courtroom during the trial subject to the judge’s legal rulings, and determines whether or not the facts of the case – as presented in accordance with our rules of procedure and evidence – supports each element of each criminal charge that the State has brought against the defendant.  Thus, the jury is the fact-finder.  Its job is to determine the facts of the case.  In a pair of recently decided cases, our Supreme Court re-affirmed that fact-finding is the jury’s province, and that interfering with this function runs roughshod over fundamental principles of our trial process.

In Cain, Hackensack police detectives were conducting a surveillance of defendant’s home.  The detectives, who were in an unmarked vehicle, allegedly observed a hand-to-hand exchange between defendant and another individual on the porch.  They then followed the individual who, upon realizing that he was being followed, dropped an object on the ground.  The detectives retrieved the object, which was found to be crack cocaine.  Several days later, an officer observed another transaction between defendant and one or more individuals in front of defendant’s house, and later recovered two envelopes of heroin.  Testimony indicated that the heroin was purchased from the defendant.  The officers obtained a search warrant for defendant’s house, and recovered cocaine, heroin, a digital scale and baggies.

Like Cain, the facts in Simms were straight-forward and relatively easy to decipher.  Atlantic City detectives conducting a surveillance near a housing project observed a silver car park near a curb.  The driver reclined his seat so that he could not be easily observed, but raised his head periodically to look around.  A red car then parked in front of the silver car.  The driver of the red car approached the silver car and handed an object to the driver of the silver car in exchanged for what was believed to be US currency.  A detective saw the driver of the red car, the defendant, lean into the silver car and then walk away, but did not actually see an exchange.  The detectives did, however, see the defendant place “something” in his back pocket.  Following his arrest, the detectives approached the silver car and observed a bundle of heroin on the back passenger seat, which was later found to have the logo “Sweet Dreams”.  Another detective then approached the red car and saw the passenger stuffing something down the rear of her pants, which was later found to be bags of heroin stamped with the same logo. Continue reading

Clients often attempt to articulate facts substantiating a violation of their constitutional rights.  Sometimes, the client’s description of the relevant facts can be used to at least articulate a legal basis for such a violation.  More frequently, however, the client’s description bears little, if any, relation to a constitutional violation.  What quickly becomes obvious is that most clients (indeed, most people) cannot identify their basic constitutional rights.  Non-lawyers may have vague notions of the right to be free from unreasonable searches and seizures or the right against self-incrimination, but these are only two of many constitutional rights that we all have.  Further, most people are also unaware that the federal Constitution is only one source of such rights.  State constitutions, including New Jersey’s, may guarantee different constitutional rights, or different (higher) levels of protections relative to their federal analogs.

The recently decided New Jersey Supreme Court decision of State v. Bass contains an extensive discussion of one of our most fundamental constitutional rights, which is the right to confrontation.  Simply put, a criminal defendant has the right to confront and cross-examine the witness(es) against them.  Justice Patterson’s unanimous opinion discusses different permutations of that right and also demonstrates that, where necessary, New Jersey will depart from federal law to chart its own course in this important arena.

After an evening of drugs, cross-dressing and, presumably, sexual activity, in a Neptune Township motel room, defendant David Bass shot and killed Jessica Shabazz, and shot and wounded James Sinclair.  Defendant, Shabazz and Sinclair were the only individuals present when the relevant events occurred.  Sinclair, who had a long criminal history, was the State’s lead witness at trial. Continue reading

The recently decided NJ Supreme Court case of State v. Baum stemmed from a prosecution for aggravated manslaughter and death by auto.  Baum, the driver, struck and killed two teenage girls who were walking in the bicycle lane of a major roadway in Kinnelon.  Baum had battled alcoholism for approximately seven years preceding the accident, and also suffered from depression.  His blood alcohol was more than four times the legal limit at the time of the accident.  He had taken a prescribed anti-depressant the night before the accident.  He also took Librium that morning to control his symptoms of alcohol withdrawal.

At trial, Baum argued that he lacked the mental capacity to act purposely, knowingly and/or recklessly (the required mental states for the charged offenses) because of his intoxication, which he claimed was involuntary due to his mental diseases or defects of alcoholism and depression.  He presented expert testimony at trial to support the proposition that his drinking was automatic behavior rather then the product of conscious thought.  His jury, apparently unconvinced by this defense, convicted him of two counts of first-degree aggravated manslaughter, and two counts of second-degree death by auto.  The Court sentenced him to two consecutive 20-year prison terms with an 85% parole disqualifier.

The issue before the Supreme Court was whether the jury charge set forth Baum’s defense in a way that would allow the jury to understand and apply it in light of the facts of the case and Baum’s mental health history.  Affirming the Appellate Division, the Court ruled that the trial judge’s jury charge accurately and intelligibly outlined all of the relevant concepts. Continue reading

Robert Goodwin recently learned that New Jersey is serious about convicting defendants charged with insurance fraud.  He was found guilty at trial of second-degree insurance fraud and sentenced to a prison term of seven years on account of false statements made to an insurance carrier in connection with an insurance claim stemming from the arson of his girlfriend’s car.  The Appellate Division vacated his conviction, finding that the trial court erroneously instructed the jury, in essence, that the defendant could not be convicted of insurance fraud unless the carrier actually relied upon the defendant’s false statements and paid the claim.  The Supreme Court reversed, finding that the carrier did not have to actually suffer a loss by paying a claim in order for the defendant to be convicted of the crime.  The Court found that it was sufficient if the statement could simply influence the carrier’s decision to pay the claim – even if the claim was ultimately denied and not paid.

The trial court hearing Goodwin’s case instructed his jury that the defendant could be found guilty if the false statement could simply affect the carrier’s decision to pay or deny the claim.  Thus, the question for the trial court was whether it was reasonable for the carrier to include the false statement in the larger mix of information that was reviewed and considered in connection with a decision to pay or deny the claim.  If it was reasonable for the carrier to consider the false statement as part of the decision-making process, the defendant making that statement could be convicted.  The Appellate Division reversed, issuing a somewhat convoluted decision that, in brief, found that the carrier had to actually rely upon defendant’s false statements.  Accordingly, the Appellate Division believed that for the defendant  to be found guilty, the false statement had to factor prominently in, and actually motivate, the carrier’s decision to pay the claim.

The Supreme Court had to determine which of these standards was correct – was it sufficient for the false statement to reasonably affect the carrier’s decision (the relatively relaxed standard set by the trial court), or did the false statement have to actually motivate the carrier’s decision (the standard set by the Appellate Division, which placed a heavier burden on the State).  The Court approved of the trial court’s standard, reversed the Appellate Division, and remanded the case to the trial court to, among other things, reinstate defendant’s conviction and seven-year prison sentence. Continue reading

In 1963, just two weeks after his 17th birthday, Henry Montgomery killed Charles Hunt, a Louisiana deputy sheriff.  Montgomery was originally sentenced to die but, on retrial in 1970, received a mandatory sentence of life without parole.  Montgomery is now 69 years of age and, by all accounts, became a model member of the prison community over the last 46 years.

In 2012, a divided United States Supreme Court ruled in Miller v. Alabama that the Eighth Amendment forbids mandatory life without parole sentences for juvenile murderers.  Montgomery, who received such a sentence, sought release from prison based upon, among other things, the Supreme Court’s ruling in Miller.  However, the Louisiana Supreme Court refused to apply Miller retroactively and, in 2014, denied Montgomery’s petition.  In fact, Louisiana was one of several states that refused to apply Miller retroactively.  As a result, juveniles in these states whose cases were no longer subject to direct review could not challenge their mandatory life without parole sentences, notwithstanding the holding in Miller.  Montgomery’s attorneys subsequently sought review in the US Supreme Court.

The Court heard oral argument in Montgomery v. Louisiana on October 13, 2015, and issued its decision on January 25, 2016.  The majority opinion addressed two issues.  First, the Court discussed whether its prior ruling in Miller was a substantive rule of law which should be applied retroactively.  The Court also considered whether the rule could be applied in a case like Montgomery’s which was on collateral, as opposed to direct, review. Continue reading

On July 2, 2009, at 11:30 pm, a car pulled up next to a woman who was walking to her home in Jersey City.  The passenger got out, approached her, tapped her hip with a gun, and asked for her phone.  The woman surrendered her purse which contained her phone and other valuable items.  She ran to a police station to report the crime.  While there, a patrol unit had stopped a car matching the description she gave police.  She was driven to the scene to view the car and the two occupants, but said that neither was the robber.  A few hours later, officers spotted another car matching the description of a car involved in several robberies in Jersey City that night.  The police stopped the car and discovered three individuals inside.  The occupants gave conflicting stories when questioned, and were taken to the police station and photographed.

Three days later, a detective asked the victim to come to the station to attempt to try to identify the robber from photobooks.  The photos of two of the three individuals removed from the second car, including that of the defendant, were placed in the photobooks before the victim saw them.  The victim selected defendant’s photo, saying that she was “pretty positive” he had robbed her.  The victim also viewed the vehicle, and said that it “looked like” the car from the robbery.  Based on this, defendant was arrested.

Six weeks after the robbery, the police arrested Stebbin Drew, who resembled the defendant, and found the victim’s cell phone in his possession.  A State Trooper called the victim in August to tell her this.  The victim told the assistant prosecutor about this call more than one year later during jury selection in defendant’s trial.  The assistant prosecutor told defense counsel about the call on the morning of the second day of trial.  The State called the victim as its first witness and, during cross-examination, defense counsel asked the victim about the Trooper’s call.  Counsel then moved for a mistrial, asserting that he had been denied exculpatory information.  The trial judge denied the motion.  During a subsequent discussion about a State Police report that the prosecutor’s office had located which noted that Drew possessed the victim’s cell phone when he was arrested, defense counsel renewed his motion for a mistrial.  The trial court again denied the motion.  The victim viewed Drew’s arrest photo during further testimony, and stated that he was not the robber.  The jury convicted defendant of, among other things, armed robbery, and the trial court imposed a 20-year term with an 85% parole disqualifier subject to the No-Early-Release Act. Continue reading