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

Articles Posted in Trial Practice and Procedure

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

A defendant has the right to address the court at sentencing.  Such statements are offered in mitigation of punishment, and typically include acceptance of responsibility and/or some showing of remorse for the underlying conduct.  The New Jersey Supreme Court recently addressed the parameters of this right in State v. Jones.  As the Court noted, there is relatively little case law on this issue, so the guidance offered by this opinion is valuable and worth a comment.

Briefly, Jones and a co-defendant  were charged with the robbery of a woman and her daughter in a park in New Brunswick.  Jones subsequently pleaded guilty to first degree robbery and a second degree certain-persons-not-to-have-weapons charge.  The State’s sentencing recommendation was 15 years with an 85% parole disqualifier subject to the No-Early-Release Act, with a concurrent 7-year sentence on the certain persons charge.  At the sentencing hearing, defense counsel asked the Court to correct the pre-sentence report to note that the gun was unloaded at the time of the robbery, and to honor the plea agreement and sentence Jones in accordance with the State’s recommendation.  The Court then asked Jones if he wanted to speak.  Jones stated that the was “a hundred percent guilty” of the offense, but was not sorry for what he did.  The sentencing judge then stated “You’re not sorry?”, to which Jones replied that the victim was not the target, and then stated “Other than that, then that’s it.”  The Court then asked the State if it wished to be heard, and the prosecutor stated that the victim was “the intended target once [Jones changed] his mind in the park.”  Jones then asked to be heard again, but the Judge denied his request.

Jones did not appeal, but instead filed a pro se motion for post-conviction relief.  His issues were eventually disposed of by an excessive sentencing panel which held, among other things, that the sentencing court did not violate Jones’s right to allow him to speak at his own sentencing.  The Supreme Court granted certification to review this claim. Continue reading

A state trooper stopped a vehicle on I-295 in Burlington County.  The basis for the stop was a damaged tail light.  The vehicle, which also changed lanes without signaling, had three occupants – the driver, a front-seat passenger, and a six-year-old child in the back seat.  The trooper smelled burnt marijuana upon approaching the passenger side of the vehicle, and then asked the front passenger, the defendant Hagans, to step out of the vehicle.  He arrested, handcuffed, and Mirandized him, and called for backup.  He then asked the driver, Shonsheray Chandler, to step out of the vehicle.  He Mirandized her and asked her about the presence of Marijuana in the car.  She denied both knowing the defendant possessed marijuana, and that she had been smoking it in the car.  He handcuffed Chandler and placed her in the back seat of the police car.

The trooper asked Chandler to consent to a vehicle search.  Prior to reading her the consent form, he stated “it would be a lot easier if you would just make things easy.”  He read her the form, told her that she could refuse to consent, and that she could leave absent some other reason to hold her.  He also told her that she could be present during the search if she consented, and could withdraw consent at any time.  At first, Chandler refused to consent to the search.  The trooper responded by saying that he was going to apply for a search warrant which would just prolong the inevitable, and that he just wanted to make things easier.  Chandler then consented to the search.  In fact, the record indicated that she repeatedly consented to the search after her initial denial.  The trooper then re-read the consent form in its entirety and again asked Chandler if she consented to the search, and she responded in the affirmative.  The trooper also repeated for the mobile video recorder (“MVR”) that Chandler initially denied consent, but then changed her mind.  The vehicle search yielded a bag of marijuana and a handgun.

The defendant admitted that the marijuana and gun were his, and was charged accordingly.  During a suppression hearing, the trial court found that based upon the totality of the circumstances, the consent to search was valid and not coerced.  The Appellate division affirmed. Continue reading

Given the current political climate, protecting the rights of non-citizen criminal defendants is certainly not a popular activity.  However, and as many judges and elected representatives have repeatedly stated, our judicial system (federal and state) is supposed to be a model of fairness for other countries, particularly those where there are no meaningful due process rights or protections.  Our tradition provides that any criminal defendant – even one who is in the United States illegally – is still entitled to due process.

To help ensure this, there is a procedure which really should be utilized in most, if not all, criminal cases where the defendant is not a US citizen.  International treaties provide that a non-citizen criminal defendant must be allowed to speak to a representative of his country’s consulate to seek whatever assistance the consulate can offer.  This was a major issue in the case of Ruben Cardenas, who was executed last night in Texas.

Cardenas was arrested over 20 years ago for the murder of his teenage cousin.  Following hours of questioning by law enforcement, he admitted to sneaking into his cousin’s through a window.  He also confessed to kidnapping, raping and killing her, and leaving her body near a canal.  He was not given an attorney until 11 days after his arrest, and his defense counsel claimed that his confession was coerced and other evidence in the case was problematic for different reasons.  Representatives of the Mexican government and the United Nations all tried to stop the execution, providing this case with international visibility.  The execution was carried out despite numerous appeals that raised the deprivation of consular rights, as well as other issues.

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It has been said that the defense attorney is frequently the most ignorant person in the room.  The reason for this unflattering description is that s/he knows the least about what actually happened at the crime scene.  The prosecutor has an army of investigators tasked with developing as much information as possible concerning the alleged underlying offenses.  The defendant knows what happened because s/he was presumably present when the relevant events transpired.  Defense counsel is the last person to arrive on the scene and, more often than not, lacks the resources to conduct an investigation rivaling that of the prosecuting authority.  Thus, the defense attorney’s best (and frequently only) reliable source of information is the discovery received from the State or the Government.  Generally speaking, the prosecutor must turn over anything that may be exculpatory or used to obtain a conviction.  The failure to do so may violate the principles set forth in Brady v. Maryland, 373 U.S. 83 (1963).  Specifically, Brady held, among other things, that the Due Process clause is violated if the Government withholds evidence that is favorable to the defense and material to a defendant’s guilt or punishment.  In Turner, the United States Supreme Court rejected a Brady claim because both prongs of this test were not satisfied.

The seven defendants in this case, including Christopher Turner (“Turner”), were indicted, tried and convicted for the kidnapping, robbery and murder of Catherine Fuller (“Fuller”).  The centerpiece of the Government’s case was that Fuller was attacked by a large group of individuals.  Their direct appeals were rejected.  In post-conviction proceedings, the petitioners alleged that the Government withheld seven pieces of evidence that were both favorable to them and material to their guilt insofar as the missing items could have been used to undermine the Government’s “group” theory and suggest an alternative theory, which was that Fuller was attacked by, at most, one or two individuals.

Significantly, the Government did not contest the claim that the withheld items were favorable to the defense, but did challenge the conclusion that these items were material.  As to this point, the Court found that evidence is “material” when it is reasonably probable that its disclosure would have changed the result of the proceeding.  Reasonable probability of a different result occurs where the fact that the evidence was missing undermines the confidence in the trial’s outcome.  To reach these conclusions, the missing evidence must be evaluated in the context of the entire record. Continue reading

New Jersey has among the most liberal criminal discovery rules in the country.  The State is obligated to provide defense counsel with a substantial body of material early in the case.  This is unlike many – if not most – other jurisdictions.  For example, in the federal system, significant amounts of discovery typically appear shortly before trial, leaving defense counsel with little time to review, analyze and investigate its content.  In New York County, the only discovery defense counsel may receive early in the case is a “People’s Voluntary Disclosure Statement”, which is a set of form questions that have been drafted and answered by the District Attorney’s Office.  (Basically useless.)  Not so in New Jersey – Here, defense counsel receives significant discovery up front, often without making a formal request.

What are defense counsel’s discovery obligations to the State?  They are obviously different because defense counsel has to be concerned with their client’s right to remain silent, protection of work product, and the fact that the State – not the defense – has the burden of proof.  In State v. Tier, decided May 2, 2017, the New Jersey Supreme Court clarified defense counsel’s post-indictment reciprocal discovery obligations concerning the oral statements of defense witnesses.  As the Court noted, this was an issue of first impression in New Jersey.

The facts are not complex.  Neighbors contacted the police because they believed that CL was having a physical altercation with her boyfriend, Tier.  The officers approached the house and heard a woman scream “Help, he’s trying to kill me.”  They kicked in the door and saw Tier on top of CL, strangling her.  A grand jury indicted Tier for kidnapping and attempted murder. Continue reading

A right to a jury trial for major criminal offenses and the jury as an institution are at the center of the Anglo-American criminal justice system.  Most of a jury’s tasks are performed secretly.  This is done intentionally so as to protect the integrity of the deliberative process and encourage open and frank discussions between and among jurors.  When the verdict comes in, the only people who really know the full extent of what happened in the jury room are the jurors, themselves.  This is intentional – particularly in New Jersey where the state courts go to great lengths to protect the secrecy of jury deliberations.

In Pena-Rodriguez v. Colorado, the United States Supreme Court recently held that the secrecy of jury deliberations may be breached in order to investigate racially biased statements that a juror made about a defendant.  The defendant was convicted of groping two teenage girls in a bathroom at a Colorado racetrack where he was employed.  He denied the charges claiming mistaken identity, and called alibi witnesses at trial.  His jury acquitted him of a felony, but convicted him of misdemeanors.  The trial court sentenced him to a term of probation, and ordered him to register as a sex offender.

After trial, two jurors told defense counsel that another juror made comments about Mexicans during deliberations.  He informed his fellow jurors that he was a former law enforcement officer who had seen many cases like this one.  He referred to the defendant as an “illegal” (untrue – the defendant was a legal resident), and also stated that “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” Continue reading

While investigating a noise complaint at an apartment complex, an officer observed James Legette standing on a common porch.  The officer approached and Legette partially opened a door leading into his area.  The officer then smelled burnt marijuana, entered the porch area, and identified himself as an officer.  As Legette began to walk away, the officer requested identification.  Legette responded that he had to retrieve his identification from the apartment, and the officer replied that he would have to accompany him.  Legette entered the apartment and the officer followed.  The officer noticed a bulge in Legette’s sweatshirt.

After entering the apartment, Legette presented his identification and the officer radioed a request to check for outstanding arrest warrants.  Legette them removed his sweatshirt and asked a woman who was in the apartment to place it in the bedroom.  The officer then seized the sweatshirt from the bedroom and took Legette, who appeared anxious, outside.  Obviously, the officer did not have a search warrant.

The arrest warrant check was negative, and Legette did not consent to a search of the sweatshirt.  The officer had a police dog sniff the sweatshirt.  A “metallic” noise could be heard when the dog moved the sweatshirt.  The officer then discovered a loaded handgun in the sweatshirt. Continue reading