Criminal News

Defendant’s Sixth Amendment Right to Counsel of His Choice Violated When Judge Denied Continuance to Hire Private Attorney

New Jersey Criminal Lawyers Schwartz Posnock

In a recent New Jersey decision, State v. Kates (A-3907-10T1), the Appellate Division held that a defendant was denied his Sixth Amendment right to counsel of his choice when the trial court improperly denied him a continuance to hire a private attorney.  In Kates, because defendant’s public defender was being deployed overseas, an adjournment of a trial date was requested on defendant’s behalf so that the defendant could retain private counsel prior to trial.  The trial judge denied this request, and defendant’s case was tried by a “second chair” public defender.

Read More >>

New Jersey Wiretap Act Allows Interception of Telephone Calls Between Individuals Outside of New Jersey

New Jersey Criminal Lawyers Schwartz Posnock

In State v. Ates (A-2308-09T3), the New Jersey Appellate Division recently held that the New Jersey Wiretapping and Electronic Surveillance Control Act (“New Jersey wiretap act”) is not unconstitutional merely because it permits New Jersey law enforcement officers to intercept telephone calls between individuals located outside of New Jersey, as long as the listening post is within New Jersey.  It was authorized under the act for law enforcement personnel to thus intercept calls between individuals in Florida and Louisiana when the listening post was in this state.  However, when the intercepted call was between the defendant and his attorney, the attorney-client privilege applied and suppression was the appropriate remedy.

Read More >>

Vehicular Homicide Conviction Reversed Because Trial Judge Allowed Medical Examiner to Testfy Beyond His Expertise

New Jersey Criminal Lawyers Schwartz Posnock

The New Jersey Superior Court – Appellate Division, reversed a conviction for vehicular homicide because the judge presiding over the trial permitted the  County Medical Examiner to testify to the probable identity of the driver and the movements of the occupants of the car when it decelerated and crashed. On May 4, 2012, the Court, in State v. Locasio, reversed the conviction because the tesimony of the Medical Examiner on issues of accident reconstruction and biomechanics was beyond the the medical exminers’ expertise. The medical examiner is a forensic pathologist, but is not an expert in these additional areas . To compound the judge’s error at trial, when the attorney for Locasio attempted to cross-examine the medical examiner on his qualifications to give an opinion on accident reconstruction and biomechanics, he was prohibited from doing so.

Read More >>

Post-Conviction Relief Hearing Not Automatic Where New Jersey Defendant Claims Failure to Advise of Deportation Consequences

New Jersey Criminal Lawyers Schwartz Posnock

The United States Supreme Court, in Padilla v. Kentucky, recently held that a criminal defense attorney has the affirmative duty to inform his or her client of the immigration consequences of a guilty plea prior to entry of that plea.

Two New Jersey criminal cases have recently discussed whether Padilla applies to guilty plea cases resulting in deportations which occurred prior to the Supreme Court’s decision. The New Jersey Supreme Court decided in State of New Jersey v. Gaitan that post-conviction relief petitioners who entered guilty pleas prior to Padilla cannot establish an ineffective assistance of counsel claim just by alleging that they were not advised regarding the risk of deportation. Instead, a petitioner must satisfy prior New Jersey law showing that his New Jersey criminal lawyer provided affirmative misadvice regarding the immigration consequences of a guilty plea.

Read More >>

Motion for New Trial Filed in Rutgers Spycam Case

New Jersey Criminal Lawyers Schwartz Posnock

Dharun Ravi has filed motions seeking acquittal or a new trial following the March 16 jury verdict finding him guilty of various charges, including third-degree invasion of privacy and New Jersey’s 2001 “bias intimidation” law, which carries a presumption of incarceration for five to 10 years.  Ravis claims that the jury verdict was not supported by the evidence necessary for a conviction under this law, which, pursuant to N.J.S.A. 2C:16-1, requires prosecutors to show that a defendant committed the underlying offense  “with a purpose to intimidate an individual or a group of individuals,” “knowing that the conduct…would cause the individual or group of individuals to be intimidated” or “under circumstances” that caused intimidation or made the victim reasonably believe the purpose was to intimidate.  Proof that the underlying act was motivated by sexual orientation allows the fact-finder to make an inference that it was done with an intimidating purpose. Ravi’s argued that there was no evidence of bias toward the victim, Tyler Clementi, or toward homosexuals in general, and that in fact there was repeated testimony that Ravi lacked bias.  They specifically contend that there was no evidence of intimidation on the part of Ravi, and that the “reasonable belief” part of the bias intimidation statute impermissibly and unconstitutionally criminalizes conduct regardless of a defendant’s state of mind. If Judge Glenn Berman does not grant an acquittal, Ravi may seek a new trial on various grounds, including the prosecutors’ withholding of materials that could have shed light on Clementi’s state of mind, the judge’s failure to provide a limiting jury instruction clarifying that Clementi’s suicide should not have been considered evidence of bias intimidation, and jurors’ statements to the media demonstrating the jury’s misunderstanding of the law. 

Read More >>

New Jersey Supreme Court Upholds Suppression of Drugs Resulting From Warrantless Search of House Following Noise Complaint

New Jersey Criminal Lawyers Schwartz Posnock

The New Jersey Supreme Court, in State v. Kaltner, A-8-811, unanimously upheld the suppression of drugs that had been seized by police during a room-by-room warrantless search of a house in response to a noise complaint. The police had responded to a rental shore home in Long Branch, in which a party was occurring.  After the police knocked, an unidentified man opened the door but walked away before he could be questioned.  The police walked around the first floor of the home and asked who lived there, but they did not get any responses.  They proceeded to walk around the other two floors of the house, and seized pills and a white powdery substance that they saw in plain view after looking inside a third-floor bedroom. Although the appellate judges determined that the officers’ initial entry into the home was permissible due to the consent of the person who opened the door, they rejected the state’s argument that the police were exercising their community-caretaking function when they continued to search throughout the house.  The court found that “the subsequent fanning out and conducting, in essence, a full-blown search of the house was neither reasonably related in scope to the circumstances that justified the entry in the first place nor carried out in a manner consistent with the factors supporting the entry’s initial legitimacy.” New Jersey criminal defense attorneys will find this case helpful in protecting their clients’ rights to be free from warrantless searches within their homes, particularly when such searches occur as a result of mere noise violations.  In such circumstances or ones which are comparable, New Jersey criminal lawyers should utilize this case in support of suppression motions on behalf of their clients.  If you have been charged with an offense and believe that you may be entitled to have the evidence against you suppressed, please call New Jersey criminal defense lawyers Schwartz & Posnock at (732) 544-1460.

Read More >>

Judges Hearing Petitions for Postconviction Relief Are Required to State Findings of Fact and Conclusions of Law

New Jersey Criminal Lawyers Schwartz Posnock

The New Jersey Superior Copurt-Appellate Division, in State v. Hill, A-2448-09, recently overturned the denial of post-conviction relief to a defendant by an Essex County judge after the judge failed to provide any conclusions or reasons in support of his decision. New Jersey Rule 3:22-11 requires a judge hearing a post-conviction relief petition to state his or her findings of fact and conclusions of law, and Rule 1:7-4 requires a judge who issues a ruling to make findings of fact and conclusions of law in an opinion. New Jersey criminal defense lawyers representing clients on post-conviction relief petitions should be mindful of these requirements mandated by both the New Jersey Rules and New Jersey case law, and should ensure that their clients receive the meaningful appellate review to which they are entitled.   If you seek to file a petition for post-conviction relief, please call New Jersey criminal defense attorneys Schwartz & Posnock at (732) 544-1460.

Read More >>

Recent New Jersey Domestic Violence Decision Limits Broad Restraining Orders

New Jersey Criminal Lawyers Schwartz Posnock

New Jersey Criminal Lawyers should be aware of a recent decision of the Appellate Division in State v. S.K., which limited the scope of an overly broad restraining order issued in Superior Court – Middlesex County, as a result of a domestic violence final hearing. On Janaury 17, 2012, the Appellate Division reversed a conviction for violating a restraining order and remanded the case back to the Family Part in Middlesex County with instrcutions to dismiss the complaint.

Read More >>

The Right to Remain Silent: A Criminal Defense Lawyer’s Basic Advice to a Client

New Jersey Criminal Lawyers Schwartz Posnock

In State v. Demetrius Diaz-Bridges,  2012 N.J. LEXIS 6 (January 12, 2012), the New Jersey Supreme Court reversed the lower court’s suppression of the defendant’s inculpatory statements.  The Court considered whether the defendant’s request for permission to speak with his mother in the midst of his custodial interrogation was an assertion of his right to silence that required the investigating officers to cease their questioning.  Because neither defendant’s statements about his desire to speak with his mother nor any of his other statements were assertions of his constitutionally-protected right to silence, the Court concluded that suppression of any portion of his confession was in error. The Court found that the defendant willingly agreed to speak with the police on multiple occasions.  Although when confronted with inconsistencies in his various stories, the defendant’s demeanor changed and he began to weep, the Court did not reasonably equate that response with the invocation of any right.  Nor was his request to speak with his mother of constitutional significance.  The Court held that nothing in the words that defendant used suggested that he was asking for the questioning to stop or intended to invoke his right to silence.  When defendant did clarify the reasons for the request, he told the detectives that he wanted to be the first to tell his mother what he had done.  He repeatedly told them that he was willing to continue speaking with them.  As a result, the Court held that his requests to speak with his mother could not be interpreted to have been a desire to secure her advice about the waiver of his rights or an assertion of silence pending the grant of permission to speak with her.

Read More >>

Supreme Court GPS Ruling: Effects on New Jersey Criminal Investigations

New Jersey Criminal Lawyers Schwartz Posnock

On January 23, 2012, the Supreme Court decided that U.S. law enforcement agents need a search warrant to track a suspect’s movements using a GPS device. In U.S. v. Jones, the Court reversed the conviction and a life-sentence for cocaine trafficking. The Court held that GPS monitoring of the suspect’s movements for over a month provided the key evidence to convict him. This decision is binding on New Jersey law enforcement agents, including the New Jersey State Police and the police departments in every town and city in the State. Criminal defense attorneys in New Jersey should carefully analyze the Jones decision because it has vast implications in terms of cell phone tracking and public surveillance cameras. As technology develops, and permanent records are kept about our daily activities, including purchases of goods and services (such as gasoline, E-Z Pass usage, and online purchases), there is a database compiled that can serve as a road map of everywhere we have been on a given day.  The New Jersey Supreme Court has always been out in front of nearly every other State in terms of safeguarding personal liberties and in providing significant remedies in criminal cases for individuals who have had their privacy violated in the course of a criminal investigation.  It will be interesting to see if New Jersey courts expand on the Jones ruling and extend the Fourth Amendment privacy expectation to other areas of developing technology.

Read More >>

Our Criminal Law Avvo® Rating
Contact Us:

Your Name (required)

Your Email (required)

Phone Number

Your Confidential Message

Social Media
Google+ LinkedIn Facebook Twitter
Blog Categories
NJ Criminal Law Archive