New Jersey Criminal Defense Attorney Blog

Mass-Incarceration – US Numbers are Down, but for the Wrong Reasons

December 8, 2022 | By James S. Friedman, LLC

According to a recent Bureau of Justice Statistics report, the number of individuals held in state or federal prisons in the United States declined 15% from 2019 to 2020, which appears to be the latest time period for which data is available. Most jurisdictions showed declines ranging from 7% to 31% The number of individuals receiving sentences exceeding a year in either state or federal prison also declined.

The problem is that the COVID pandemic was largely responsible for the decline in incarceration at both the state and federal level. Courts nationwide substantially altered their operations for either part or all of 2020. There were significant delays in trials and/or sentencing proceedings for defendants generally. This was reflected in a 40% decrease in admissions to both state and federal facilities from 2019.

As of the end of 2020, the number of state or federal prisoners had decreased by 15% from 2019, and by 25% from 2009, which is the year the number of inmates in the United States peaked. Nine states showed decreases in the number of incarcerated individuals of at least 20% from 2019 to 2020. The prison populations of California and Texas, as well as the number of individuals in the custody of the Federal Bureau of Prisons, each declined by more than 22,500 from 2019 to 2020. This accounted for 33% of the total prison population decrease.

Applying for a Carry Permit in New Jersey

December 6, 2022 | By James S. Friedman, LLC

A recent United States Supreme Court decision has made it much easier to obtain a carry permit in New Jersey. Our firm represents responsible gun owners in a variety of gun permit matters, so this is an area of law that we monitor closely. What follows is a non-exhaustive list of pointers for tackling the application process, as well as some other thoughts to be kept in mind by individuals seeking to carry a gun for personal protection.

Please note that the following instructions are the same for initial and renewal applications.

First, applicants must apply in person. Out-of-State residents should apply at the non-toll road State police barracks closest to their residence. In-State residents should apply at their local police department. In any case, call the local police department or barracks before going there – do not just show up.

Are New Jersey State Troopers Receiving the Best Training? A Recent Report Raises Many Concerns

November 15, 2022 | By James S. Friedman, LLC

A recent report issued on November 10, 2022 by the New Jersey Office of the State Comptroller found various flaws in the training provided to New Jersey State Police (“NJSP”) officers. Deficiencies in officer training is an issue that must concern everyone. Here are some of the issues discussed in the report.:

Training on such issues as the “Use of Force” policy deviated from the established curriculum, and instructors who were observed during training sessions appeared to have no interest in the training. At least one instructor described sections of courses dealing with issues such as culture and diversity in very negative terms. Another instructor reduced the time allotted to discuss prejudice and discrimination, and omitted a video on hate crimes that was to be shown as part of the course.
Representatives of the NJSP Training Bureau are supposed to observe instructors to determine whether training is being presented appropriately, and to identify areas where training can be improved. Feedback from instructors indicated a lack of consistency in how and/or when such evaluations would be conducted.
There are supposed to be formal eligibility and selection criteria for instructors. Some instructors are being allowed to provide training without first demonstrating that they meet these criteria by, for example, submitting resumes or being interviewed.
NJSP does not ensure that officers who are promoted complete leadership training courses within six months of their promotion. Troopers who are promoted are supposed to complete rank-specific training within that time period.
Academy recruits are not asked for feedback concerning specific courses in the form of course evaluations.
NJSP lesson plans for specific courses fail to adhere to best practices for adult learning.
NJSP has no policy or practice of regularly reviewing lesson plans and course materials.

Statements to Law Enforcement – A Mistake Many Defendants Live to Regret

November 13, 2022 | By James S. Friedman, LLC

Statements to law enforcement are a routine part of many criminal investigations. The atmosphere in which a statement is taken is pretty grim. A suspect is placed in an interview room which, in itself, is an inherently coercive environment. These rooms are typically small and engender a sense of being cut off and isolated. Most statements are typically taken by at least two law enforcement officers, so the suspect being interviewed will naturally feel outnumbered. Requests by the suspect during the interview to seek advice from others, such as family members, are denied. In New Jersey, statements are typically recorded in video format. This was not always the case – video recordings became part of the interview procedure because of ongoing complaints concerning abusive tactics by officers conducting the questioning.

But it gets worse than this. Many people think that they can handle themselves in the interview room by simply explaining the underlying situation to the officers present without saying anything that will ultimately undermine their position in any resulting case, and that they will then be allowed to simply leave the facility without being arrested. Generally speaking, nothing can be further from the truth. The officers taking the statement are trained to elicit damaging information from the person being questioned. Further, they have probably already interviewed other people involved in the investigation such as purported victims, and know what they are looking for when it comes time to interview subjects or targets. Thus, alone in an unfamiliar environment, outnumbered, and confronted with officers who have been taught to obtain damaging admissions of wrongdoing and already know something about the underlying facts, many people bury themselves without even realizing it. As a New Jersey criminal defense lawyer, I confront these issues regularly.

A defendant’s statement to law enforcement almost always makes it more difficult to defend the case. The solution to the problems that statements create is simple. Don’t give a statement. A suspect in a criminal case does not have to answer questions from investigating officers, and should refuse to speak to the officers conducting the questioning. Although the suspect will almost certainly be arrested and charged, they have done nothing to strengthen the case against them by giving a statement.

Credibility, Respect for Precedent, and the US Supreme Court

November 11, 2022 | By James S. Friedman, LLC

We are in the midst of the midterm elections, and abortion was a central issue because of the Supreme Court’s overturning of Roe v. Wade. This was obviously on the front burner this election season because of the effect on reproductive and privacy rights. But the overturning of Roe presents another issue that has been touched upon in the media, but may actually be more significant than the elimination of this Constitutional right that has been law for decades.

The basic course in Constitutional Law is a staple of the first year law school curriculum. Indeed, it is probably the favorite of most, if not all, new law school students. It touches on our nation’s history, current events and the operations of our government, and explores issues that are of considerable significance to every American citizen. Anyone who follows world politics knows that no other country has anything like this extremely unique institution. One of the points that is emphasized in this course is the somewhat obvious fact that our Supreme Court does not have an army or law enforcement apparatus that may be called upon to enforce its decisions. The strength of the Court’s decisions and the level of seriousness with which they are viewed and accepted as law is a function of the Court’s credibility. If the Court is not viewed as a credible institution, its decisions could be ignored, and even laughed at. As has been reflected in the media, the current Court has lost a substantial amount of credibility in the eyes of many Americans for several reasons.

First, the importance and role of precedent is a hallmark of American jurisprudence. The law is not supposed to be based on surprises but must instead, at least to some extent, be predictable. Taking a precedent like Roe that has been the law of this country for decades and overturning it as was done is anything but predictable. In fact, there were media reports that Chief Justice Roberts, who was not a fan of Roe, favored a more incremental approach to pulling back on it. Obviously, this was not what happened, and the result was the ongoing scramble among the various states to make decisions concerning the extent to which the right to choose will be protected.

Termination of Megan’s Law and CSL/PSL Obligations – Get Off ASAP if You Can

September 26, 2021 | By James S. Friedman, LLC

Many people contact our firm to learn about terminating their obligations under Megan’s Law and Community Supervision for Life or Parole Supervision for Life (CSL/PSL). We are known throughout the State for representing clients seeking termination of these burdensome, and frequently useless, obligations. There is information on the firm’s website concerning the criteria for terminating these incredibly burdensome requirements, which we encourage all those viewing us online to read. However, if you are saddled with Megan’s and CSL or PSL obligations, and you are tired of the ways they are forcing you to place your life on hold, we encourage you to continue reading. The information below, as well as that on our main site, is very general and should be viewed only as a starting point. It is, however, a good place to begin. Bear in mind, however, that you must contact a seasoned Megan’s Law attorney in New Jersey for counseling and advice that meets your unique needs.

It’s hard to believe, but the nightmares that are Megan’s Law and CSL/PSL have been around since 1994. For one thing, this means that the number of defendants who are eligible to have their obligations terminated is growing. One would think that given the amount of time these laws have been in effect, there would have been some sort of study or review concerning their effectiveness. To this writer’s knowledge, however, no such study has ever been produced or even attempted. This is significant not only because of the truly detrimental effect these statutes have on people’s lives, but because the registration and supervision systems cost money to administer and sap State resources that may be put to better use elsewhere.

In any event, every termination motion starts with information. Each county prosecutor’s office has a Megan’s Law unit. The first step Megan’s Law counsel must take after meeting with the registrant/parolee is to contact that unit to obtain a copy of the relevant discovery. If someone was convicted in one New Jersey county but has since moved to another New Jersey county, the correct office to contact is the one in the county where the registrant/parolee currently resides. A termination motion must also be filed in the county of residence, not the county of conviction. A registrant/parolee who has moved out of State must obtain their discovery and file their motion in the New Jersey county of conviction. Once obtained, the discovery must then be reviewed by a New Jersey parole supervision for life attorney to ascertain whether all relevant requirements for termination are met, and for information that must be included in the motion papers.

Answers to Questions Raised by the New Marijuana Legalization/Decriminalization Laws

February 26, 2021 | By James S. Friedman, LLC

The new marijuana legalization/decriminalization laws raise many questions that will be answered only with the passage of time and experience. Here are some responses to certain questions that will probably arise very quickly:

What should an officer do if they smell marijuana coming from a vehicle during a motor vehicle stop? First, the officer should take the traditional investigative steps to determine if there is probable cause to believe that the driver is operating the vehicle while under the influence, in violation of N.J.S.A. 39:4-50. If so, the driver may be arrested and the vehicle may be searched. If the driver is not found to be under the influence, the new laws are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify a continued stop, nor probable cause to conduct a search of the vehicle or the person, in a marijuana possession case or even in a low-level (fourth-degree) possession with intent to distribute marijuana case. As a result, the vehicle and occupants must be released once the initial reason for the stop has been addressed.

May an officer initiate or continue a pedestrian stop of an individual based on the officer detecting the odor of marijuana? No, the new laws are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify or continue a pedestrian stop. In addition, the odor of marijuana by itself does not establish probable cause to conduct a search in a marijuana possession case or even a low-level (fourth-degree) possession with intent to distribute marijuana case. The age of the person being stopped is irrelevant in these situations.

State v. Nyema and the Proper Basis for an Investigatory Stop

January 15, 2021 | By James S. Friedman, LLC

State v. Nyema, a recent Appellate Division decision, is important because it helps to set parameters for what constitutes a sufficient basis for an investigatory stop.

The case arose from a convenience store robbery. The police had information that the robbery was committed by two black males who fled on foot. An officer in the area who was familiar with the location responded. Less than a mile from the store, he saw a vehicle traveling toward him and away from the store, pointed his spotlight into the vehicle and observed a male and female. Both occupants reacted in a way that displayed annoyance with the spotlight. The officer then saw a second vehicle traveling away from the store, shined his spotlight into that car and observed three black males. He testified that none of them responded in any way to the light, but just stared straight ahead. Thinking their reaction was “odd”, he decided to stop the vehicle. Other officers who arrived at the scene had learned that the robbery suspects were wearing black or dark clothing. The defendant was the front-seat passenger. While standing outside the vehicle, the officer who made the stop saw dark jackets on the floor behind the driver’s seat. Dispatch contacted this officer and told him the car was reported stolen. The vehicle’s occupants were ordered out of the car and arrested, and the officer who stopped the car searched it. He located, among other things, a red bandana under the hood with a gun wrapped inside. The occupants were searched and each had cash. The defendant and another occupant moved to suppress the evidence seized from the car. At the suppression hearing, the defendant’s father testified that he owned the car, that it was not stolen, and that he had not reported it stolen in the days preceding the stop. A police officer testified as to a report that the vehicle was stolen.

The motion judge found that none of the defendants had a reasonable expectation of privacy in the vehicle because it was stolen, and that the stop was lawful because the officer had a reasonable and articulable suspicion that the occupants had robbed the store. Incredibly, the judge noted that “the racial makeup of the occupants of the vehicle, three black males traveling away from the scene was the reasonable and typical suspicion for the officer to ultimately pull this car over”, and the clothing in the vehicle was lawfully seized under the plain view doctrine. That part of the suppression motion was denied; however, the judge suppressed the gun because it was taken from under the hood without a warrant. Continue reading ›

State v. Hemenway – Supreme Court Defines Standard for Weapons Seizure in Connection with Issuance of Temporary Restraining Order

September 7, 2020 | By James S. Friedman, LLC

Gun owners must always remember that the issuance of a domestic violence temporary restraining order, or TRO, can result in at least a temporary seizure of their weapons and firearms purchaser identification card. On the surface, the typical chain of events is fairly straight forward. A member of the same household complains of an alleged act of domestic violence. The police arrive and, if previously provided with information concerning weapons in the home, seize the weapons and any related items including ammunition and the gun owner’s FID Card pursuant to a warrant. The court will then conduct a hearing to determine, among other things, whether the weapons and other items can be returned to the gun owner. The issue in Hemenway was the standard that should guide a court’s decision to issue to a domestic violence search warrant for weapons. Specifically, the relevant statute and related cases referred to a “reasonable cause” standard for the issuance of such a warrant, and the Supreme Court was called upon to determine whether this standard passed Constitutional muster under the Fourth Amendment of the United States Constitution and the analogous provision of New Jersey’s Constitution.

The applicant in the underlying domestic violence case requested a TRO barring Defendant from, among other things, from possessing firearms, knives and a taser. In court, the Family Part judge asked her whether she had an awareness that he had any weapons. She responded affirmatively and the judge asked what kind of weapons did she claim he had. She responded “handguns, knives”, to which the court replied “A handgun?” She then stated “knives, blades”, to which the court replied “handguns?” She then stated “switchblades”. She also alleged that Defendant kept the weapons in three cars and his apartment. Based upon this colloquy, the court entered a TRO and a search warrant to “search for and seize … handguns, knives, and switchblades” from Defendant’s home and three vehicles. The court did not state a “reasonable cause” or “probable cause” basis for believing that Defendant possessed the weapons, or that they would be located in his home or vehicles.

Two officers met Defendant outside his home and told him that they had a warrant to search his residence for weapons. Defendant was not permitted to call his lawyer , and was arrested when he refused to allow the officers into his home. Upon entry, the officers saw what appeared to be cocaine and marijuana. A detective then obtained a telephonic search warrant for Defendant’s cars and residence. The search yielded drugs, ammunition and cash, but no weapons. Defendant was charged with narcotics offenses. His suppression motion was denied because the trial judge determined that the telephonic warrant was issued based upon probable cause to search the residence, and the domestic violence search stemmed from an independent and adequate basis to the cars. The Appellate Division affirmed and the Supreme Court granted certification.

State v. Andrews – Loss of Protection for Defendant’s Cell Phone Contents

August 30, 2020 | By James S. Friedman, LLC

The ability of law enforcement to access the cell phone content of a criminal defendant has received considerable attention in recent years. The issue has been the same in case after case. If the cell phone is seized as part of an investigation, the security settings, such as passcodes, shield the content from law enforcement. The New Jersey Supreme Court recently considered whether a court order requiring a criminal defendant to disclose his cell phone pass codes violates his right to not incriminate himself pursuant to the Fifth Amendment of the United States Constitution, and/or New Jersey’s statutory or common law right against self-incrimination.

Quincy Lowery was the target of a State narcotics investigation. During the investigation, he informed detectives that Robert Andrews, a former Essex County Sheriff’s Officer, had given him information concerning the investigation, and had told him how to avoid criminal exposure. Andrews and Lowery had known each other for about a year, and belonged to the same motorcycle club. Lowery informed detectives that he regularly communicated with Andrews over FaceTime. During one of these communications, Andrews told Lowery to get rid of his cell phones because members of law enforcement were doing wiretaps after the arrest of members of the Crips gang. Lowery told Andrews that he thought he was being followed by the police, and texted Andrews the license plate number of one of the vehicles. Andrews then informed him that the plate number belonged either to the Essex County Prosecutor’s Office or Sheriff’s Department. He also instructed Lowery to put his car on a lift to see if it had a tracking device attached to it. After seeing a picture from Lowery of someone who was following him, Andrews told Lowery that the person was with the Prosecutor’s Office. Lowery’s allegations were corroborated by his cell phone records.

The State obtained warrants for cell phone numbers belonging to both Lowery and Andrews. The warrants showed 114 calls and text messages between the two over a period of six weeks. Andrews was indicted for official misconduct, hindering apprehension and obstruction of justice.