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

Articles Posted in Trial Practice and Procedure

I have never believed that most lawyers or judges take juvenile delinquency cases seriously.  Many of them frequently refer to these matters as “kiddie crime”.  Indeed, it is not unusual for a judge who has sat in an adult criminal trial court to feel offended as a result of being transferred to a juvenile court.

Attorneys and judges who have such views of the juvenile justice system have, however, failed to see its importance.  One of the system’s most significant functions is to prevent juvenile offenders from becoming adult offenders.  It is generally believed that a juvenile who is charged with acts of delinquency is more susceptible to rehabilitation because they are young, and the probability of successful rehabilitation decreases as the juvenile moves toward, and eventually attains, adulthood.  Thus, successfully retraining and rehabilitating juvenile offenders while they are still relatively young reduces the likelihood that they will incur criminal charges as an adult.  The theory is simple – offending behavior that is corrected at an early stage in life will remain corrected.

Nevertheless, there are juveniles who commit the most serious crimes regardless of their age and relative inexperience.  These crimes include murder, armed robbery and sex offenses.  Juvenile offenders who engage is such conduct are typically “waived up” to the adult court, where they are subjected to the adult criminal process like any other adult criminal defendant.  Must we somehow balance the fact that they were juveniles when they committed their crimes against the severity of their offenses? Continue reading

Arnett Blake, his girlfriend Cindy Edwards, and his former girlfriend Terri Hannah, all attended a party in Vineland, New Jersey.  At some point, Edwards encountered Hannah in the bathroom.  While there, Hannah allegedly made rude remarks about Edwards.  Hannah then left the bathroom and told Blake that she should “F___ [his] girlfriend up”.  Later, when Edwards and Blake tried to leave the party, Hannah approached Blake with a closed fist.  Blake pushed her away, and security detained him.  Edwards was then going to say something, but saw Hannah holding a high-heeled shoe.  Hannah hit Edwards in the face with the shoe.  Blake saw Hannah hit Edwards.  When Hannah was escorted out, Edwards saw she was not wearing shoes.  Hannah and Edwards later exchanged communications on Twitter which included a Tweet from Hannah saying, among other things, “shoe to ya face bitch.”

Hannah was charged with simple assault and proceeded to trial in municipal court.  There, she testified that she approached Blake at the party because she heard rumors that she planned to hurt Edwards, and she wanted to be sure that Blake understood that this was untrue.  She also testified that she was escorted from the party when she started yelling, that she did not see Edwards that night, and that she never hit anyone with a shoe.  This testimony was somewhat supported by that of a security guard who removed Hannah from the party and instructed her to not return, but also did not see her hit anyone with a shoe.

The municipal judge found Hannah guilty and, after a trial de novo, a Superior Court judge did the same.  Hannah then appealed her conviction to the Appellate Division. Continue reading

June Gorthy met a mental health therapist at a conference in 1998, and then tried to commence a relationship with him.  The therapist rejected her many overtures, which were expressed repeatedly in numerous gifts, letters and telephone messages.  Gorthy then left her home in Colorado, drove to New Jersey, repeatedly contacted the therapist, and was ultimately arrested while sitting on the floor outside his office.  She was carrying a knife.  Guns, ammunition, another knife and an axe were discovered in her truck during a consent search.  Not long after her release from jail, she again began contacting the therapist, and was arrested and charged with stalking and weapons offenses.  She was then admitted to pre-trial intervention.  The conditions of her supervision required her to cease contacting the therapist.  She complied initially, but then called him 74 times during a three-week period.  She was then charged in a superseding indictment with stalking and weapons offenses.

Prior to trial, Gorthy filed a motion questioning her competency, and the trial court found her competent.  Before trial, her attorney served notice of the possible assertion of an insanity defense. This notice was supported by a psychiatrist’s report which concluded that Gorthy was delusional at all times relevant to the commission of the underlying offenses.  The psychiatrist also noted that any decision by Gorthy to not assert an insanity defense would be knowing, but not voluntary or intelligent.

Over her attorney’s objection, Gorthy ultimately refused to assert an insanity defense.  At a hearing, the trial judge explained to Gorthy what would occur if she was acquitted by reason of insanity versus what could occur if she did not assert the defense.  She remained steadfast in her refusal to assert the defense.  The trial court found that her delusional state rendered her incapable of refusing to assert the defense in a knowing, intelligent and voluntary way, and then asserted the defense on Gorthy’s behalf as to the stalking charge.  As to that count, Gorthy was found not guilty by reason of insanity.  The jury convicted Gorthy on the weapons counts.  The trial court sentenced Gorthy to probation on the weapons counts, and civilly committed her on the stalking count. Continue reading

There is increasing concern over the efficiency of our State’s court system.  Everyone seems to want the system to work more efficiently.  The most obvious examples of this desire is the soon-to-be-implemented criminal justice reform package (bail reform and speedy trial), which was the subject of prior blog posts.  But other procedures are being implemented that will hopefully make the Courts run more smoothly, including the new expedited expungement procedure for certain non-indictable offenses.  Municipal court defendants with eligible offenses should take immediate advantage of this procedure.

An expungement allows someone convicted of an offense to, in effect, hide the fact of that conviction from certain individuals and entities.  The primary benefit seems to be in the area of background checks by prospective employers.  The expungement procedure for an indictable (felony) conviction appears in the New Jersey criminal code.  Anyone who is in the running for an expungement should take advantage of this procedure as soon as they are able to satisfy all of the statutory criteria.  (Not every offense is eligible for expungement.  Further, a certain amount of time must have passed since the completion of the sentence before the application can be filed with the court.)

The expungement process requires a fair amount of work, and can take many months to complete successfully.  As of April 18, 2016, the criminal code was amended to allow for the expedited expungement, without the assessment of a fee, of all information concerning or relating to an arrest or charge for a disorderly persons offense, petty disorderly persons offense, or ordinance violation, where the charge has been disposed of with a dismissal, acquittal at trial, or discharged without a finding of guilt by the defendant. Continue reading

Ever wonder why criminal cases languish in the system prior to resolution?  Frequently, good reasons frequently exist for a case to drag on over a period of months, or even years.  Further, the passage of time can actually help the defendant by effectively weakening the State’s case through the loss or disappearance of physical evidence or witnesses, or the discovery of exculpatory evidence.  But the same cannot be said of every criminal matter.  Some cases can be resolved quickly, thereby freeing limited resources that can then be focused on more complex matters.

In any event, and starting January 1, 2017, the criminal justice reforms that have been enacted in New Jersey will emphasize moving criminal cases through the system more promptly and efficiently.  In a prior blog post, we commented upon one of the major elements of the new reforms, which is bail reform.  The other major element is speedy trial.

Speedy trial is pretty much what it sounds like.  Cases will be on a more defined schedule which is designed to bring them to trial or other resolution within a set time frame.  This is not a new concept.  The federal system, New York State, and many other jurisdictions have had some form of speedy trial for years.  But this is new for New Jersey, and it merits discussion because of the significant impact it will undoubtedly have on our criminal courts. Continue reading

Everyone here is scrambling to implement the criminal justice reforms that become effective on January 1, 2017.  As stated in a previous posting, the new laws and procedures change New Jersey’s criminal justice system in many significant ways.

The new bail procedure departs substantially from current law.  Under the current system, a defendant’s pretrial release depends their ability to post a monetary bail.  Under the new procedure, pretrial release will depend upon the extent of the risk that the defendant will not appear in court when s/he is supposed to do so, and whether the defendant poses a danger to the community.  The reforms address a problem known to exist for a long time.  Under current procedure, defendants who do not present any meaningful risk to the community can remain in jail throughout their case only because they cannot afford to pay even a minimal bail, whereas defendants with more significant resources can afford to post bail even if they are a flight risk, or are perceived as dangerous.

Under the new system, when a defendant is arrested on a complaint-warrant, the judge setting bail will use an objective, validated risk assessment tool developed by the Laura and John Arnold Foundation to assess the risk that the defendant will be arrested for a new offense; be arrested for a new violent crime; and fail to appear in court when required to do so.  The assessment is designed to be race and gender neutral.  Based upon the risk assessment score, the defendant will be classified as low, moderate or high risk, and the judge will then set the terms and conditions of pretrial release accordingly.  The decision to release or incarcerate the defendant must be made within 48 hours.  The courts will, however, be trying to make this decision within 24 hours. Continue reading

Major changes to the processing of criminal cases in New Jersey will take effect on January 1, 2017.  On the surface, these changes address two areas of criminal practice: (a) pretrial release and bail; and (b) speedy trial.  However, it is anticipated that these changes will ultimately affect virtually every aspect of a New Jersey criminal case.  This post is the first of a series addressing criminal justice reform in New Jersey.

Pretrial Release and Bail – Criminal cases in New Jersey are commenced with the issuance of a Complaint-Summons or Complaint-Warrant.  As under the current system, defendants receiving Complaint-Summonses will simply get a court date, and then be released.  However, the new procedures significantly affect defendants who receive Complaint-Warrants.  Under the existing procedure, these defendants are given a dollar amount that they must post for bail.  They are released if they can post that bail, and remain in custody if they cannot.  The primary issue that the changes to the current system seek to address concerns defendants who receive low bails (often as low as $500.00), but are forced to remain in jail – sometimes for months, if not longer – because they cannot afford it.  The changes focus upon two problems that result from jailing this group of defendants.  First, these defendants, whose economic circumstances are often fragile at best, frequently lose their jobs and their homes as a result of prolonged incarceration.  Further, jailing people costs money, and the State, the counties and the municipalities, cannot afford it.  Thus, the changes are designed arrange for the prompt release of non-violent defendants who are not flight risks so that they do not face the consequences of needless incarceration stemming from their inability to pay even a modest bail, and to conserve public funds that could be better spent elsewhere.

The new procedures result in a shift from a system of pretrial release and bail that is based upon a defendant’s economic resources to a system that focuses more on an assessment of the likelihood that a defendant will appear for court when instructed to do so, as well as the danger they present to the community if they are released while their case is pending.  These procedures represent a substantial departure from current bail practice in New Jersey.  The precise mechanics of the new bail system will be the subject of a future blog post.

Neither the New Jersey Code of Juvenile Justice nor the New Jersey Court Rules expressly address discovery in juvenile matters.  The absence of express guidance in the statute or court rules recently led to decisions from the Appellate Division and New Jersey Supreme Court that broadened a juvenile’s right to discovery, at least in a relatively narrow – but very serious – class of cases.

Two high school students – CW and DW – got into a fistfight.  Someone who was present at the fight had a handgun in his waistband.  NH, one of DW’s friends who was also present at the fight, grabbed the gun and shot CW four times.  One of the shots was to the back of CW’s head.  NH subsequently admitted to possessing and firing the handgun, but claimed that he shot at the ground.  At least a portion of the incident was caught on video, and several witnesses provided statements to the police that implicated NH.

The State charged NH in a juvenile complaint with crimes that, if committed by an adult, would constitute knowing and purposeful murder and unlawful possession of a weapon.  The State also sought to waive jurisdiction of the case from the Family Division, Juvenile Part, to the adult criminal part of the Law Division.  In connection with this motion, the State submitted a statement of reasons, provided the juvenile with limited discovery, and represented that it had no exculpatory evidence. Continue reading

The Fourth Amendment to the United States Constitution, as well as the analogous provisions of New Jersey state law, set rules concerning the manner in which officers can search a person, and/or their home, office or vehicle.  This body of law plays a central role in maintaining personal liberty and privacy, and impacts upon the rights and freedoms of every citizen.  However, at least one sitting US Supreme Court Justice (Breyer?) has noted that our Fourth Amendment case law is in “disarray”, or words to that effect.  This stems, at least in part, from the fact that these cases arise in a wide array of scenarios, and are very fact-sensitive.  This creates opportunities for widely divergent interpretations of facts and related applications of law, with the result that existing search and seizure case law is frequently unclear.  Indeed, this area of law demonstrates plainly and numerous individuals can have different views and opinions of the same plot line, and therefore reach different legal conclusions and results.  The New Jersey Supreme Court recently decided State v. Bivins.  This case, which is somewhat refreshing in its clarity, helps to define the limits of search and seizure activities in drug cases where the search is conducted pursuant to an “all-persons-present” search warrant.

In Bivins, the police obtained a no-knock warrant to search a residence believed to be involved in drug trafficking for narcotics and related contraband.  The terms of the warrant allowed the police to search the residence, and “all persons present reasonably believed to be connected to said property and investigation.”  The affidavit supporting the warrant stated, among other things, that the residence was “open for the sale of narcotics twenty-four (24) hours a day, seven (7) days a week.”  One of the state troopers involved in the execution of the warrant asserted that people were “in and out of the house at all times” and there may have been “a lot more occupants in there than [those] seen.”

This trooper also testified that when the police were entering the residence, he learned that two individuals had departed and were heading toward a grey Pontiac.  The trooper approached his designated location and saw a grey Pontiac approximately five or six houses down the block from the target residence.  The trooper also observed two individuals in the car, who were later identified as defendant Bivins and his cousin.  Significantly, the trooper did not personally observe Bivins or his cousin leave the residence and enter the Pontiac.  Bivins and his cousin were removed from the vehicle and searched, and each had 35 bags of cocaine. Continue reading

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