Synthetic marijuana is typically sold in small packets, targetting young people and teenagers looking to get a quick high. Although it is marketed as incense, potpourri or bath salts, many people have discovered that smoking these products mimic the effects of marijuana. According to the Attorney General, the packets contain a mixture of herbs and plant materials coated with chemicals affecting brain functioning. The medical community generally agrees that that the long-term effects of inhaling synthetic marijuana are far more dangerous than marijuana itself, and there have been at least five (5) reported deaths nationwide linked to the use of synthetic marijuana. The Attorney General's office reports that synthetic marijuana is the third most abused sybstance by high school seniors throughout the country.
Although the announced ban goes into effect immediately, individuals in possession of synthetic marijuana have 10 days to surrender it to law enforcement. The Jersey Shore, with its numerous boardwalks and beaches throughout Monmouth and Ocean Counties, will likely be ground zero for the crackdown on synthetic marijuana.
]]>The high Court's decision, Howes v. Fields, arises out of the state of Michigan. Defendant Fields was a Michigan state prisoner; he was escorted from his prison cell to a conference room and questioned by law enforcement officers relative to crimes he purportedly committed before being sentenced to state prison. He was never administered his Miranda warnings, nor was he advised that he did not have to speak with the officers during the five to seven hours of questioning. The defendant was, however, advised on more than one occasion that he was free to leave and return to his cell. He was never restrained, and the door to the conference room remained open at times. The defendant eventually confessed to the crimes for which he was being questioned, and he later moved to suppress the confession under Miranda.
The trial court denied the motion to suppress and defendant was convicted. The Michigan Court of Appeals affirmed. Eventually, the federal District Court for the Eastern District of Michigan held that the interview was, in fact, custodial interrogation within the meaning of Miranda, finding that removing defendant from the general prison population, combined with questioning him about prior criminal activity, rendered the interrogation custodial per se (i.e., custodial questioning on its face). The Supreme Court disagreed, ruling that neither Miranda, nor the cases which followed it, held that imprisonment alone amounts to custody for Miranda purposes. The Court found that questioning an individual already in custody does not generally involve the shock that is associated with an arrest, and a state prisoner is not likely to be enticed into speaking as a quid pro quo for early release. Likewise, while isolating a non-prisoner for questioning may help to create a coercive atmosphere, this concern does not generally apply to a prisoner who is, by definition, already isolated by virtue of being in prison. Therefore, according to the Court, serving a prison term, without more evidence of coercion, is not enough to constitute Miranda custody.
It is important to note that Howes v. Fields was decided under a federal constitutional analysis. It is well settled, however, that a state's high court may afford an accused in a criminal proceeding greater constitutional protections under its state constitution than might be afforded under the federal constitution. In other words, the United States Constitution functions as a floor, rather than a ceiling, when it comes to protecting fundamental constitutional rights. It is entirely plausible, therefore, that if a case similar to Howes were to come before the New Jersey Supreme Court at some point down the road, New Jersey's highest court may very well part company with its federal counterpart, and rule quite differently.
]]>In State v. S.K., the defendant was alleged to have violated an FRO -- which was previously granted to his ex-wife in 2005 -- simply by being at his children's soccer game, where she also happened to be at the time. There was no allegation of misconduct on the defendant's part, or even any accusation that he attempted to communicate with his ex-wife in any way; nevertheless, a complaint for violating the FRO (contempt) was issued against the defendant for just for being in the same place as his wife.
Althought the defendant pleaded guilty to violating the FRO, the Appellate panel overturned the conviction based upon its conclusion that the Domestic Violence Act does not authorize such an overly broad provision in an FRO which prohibits a defendant from being wherever the victim happens to be located. The Act provides that a defendant may be restrained from any specified place that is named in the order and is frequented by the victim or family/household members, as well as future acts of harassment or stalking. Conduct, rather than location, is the focus of the restraint. The Court found that a defendant should not be prohibited from lawfully appearing in a public place solely because his ex-wife chooses to be in the same general location.
In other words, there must be some type of conduct on the part of the defendant that would trigger a violation of an FRO; just "being there," without any further indicia of knowingly violating the order, is insufficient to constitute a violation.
This is a significant decision for those charged with contempt under the Prevention of Domestic Violence Act.
]]>The defendant was stopped in October 2008 in Manchester Township for repeatedly crossing the center line and driving erratically. According to the officer, she failed the field sobiety tests, including the heal-to-toe and one- legged stand tests. She was brought to the police station, submitted to the Alcotest, and produced blood alcohol results of 0.15 percent, almost twice the legal limit of 0.08. At trial, her attorney objected to the admissibility of the blood alcohol results on the basis that the defendant was not continuously observed by the operator of the Alcotest for a minimum of 20 minutes prior to the administration of the test as required by State v. Chun, the Supreme Court's decision which upheld the scientific reliability of the Alcotest. The municipal court allowed the readings into evidence, and the defendant appealed to Ocean County Superior Court. The Superior Court remanded the case back to Manchester, holding that the municipal court should have considered whether defendant could have been convicted based upon observations taking into account certain medical issues raised by the defendant which made it difficult for her to perform the road-side tests. On remand, the prosecutor stated he would proceed with the case without the blood alcohol results, and the municipal court nevertheless convicted the defendant based upon a review of a videotape of the stop. The defendant again appealed, and her conviction was upheld by both the Superior Court in Ocean County and later the Appellate Division based on visual evidence.
The Appellate Court's decision in this case demonstrates unequivocally that one may still be convicted of DWI based upon visual observations, even where blood alcohol results are unavailable or have been suppressed by the court. In most cases where the conviction is for a first DWI related offense, however, the loss of driving privileges will only be 90 days as opposed to 7 months since there are no blood alcohol readings for the court to consider.
]]>In Diaz-Bridges, the defendant was being questioned by detectives in connection with a murder investigation. The interview was video-taped and recorded. The defendant was read his Miranda rights at the outset of the questioning, which he waived. After about three hours of questioning, the defendant broke down and began to weep. When asked again about the murder, the defendant requested permission to call his mother before going any further. He was not permitted to call his mother, and upon further questioning, confessed to the murder. He again requested to speak with his mother, but the detectives advised him that they needed to take a formal statement, whereupon he again waived his Miranda rights. Throughout the questioning, the defendant continued to request to speak with his mother. After he was finally allowed to call her, approximately six hours into the questioning, he confessed yet again.
Although the lower court granted the defendant's motion to suppress his statements to the police, finding that defendant's asking to speak with his mother was tantamount to an assertion of his right to remain silent, the Supreme Court held differently. Since none of his statments, including those relative to speaking with his mother, were assertions of his constitutionally protected right to remain silent, the Court held that the suppression of his statement was erroneous. Looking at the totality of the circumstances, the Court determined that there was no invocation of this right by the defendant. Since there was nothing in the defendant's statement reasonably suggesting that he was asking to stop the questioning or assert his right to silence, defendant's confession was therefore evidential and admissible at trial.
This is a significant decision concerning the rights of criminal defendants. Interestingly, it was a three-two decision (i.e., three Supreme Court justices voted to overrule the lower court, thereby permitting the defendant's statement to be admitted into evidence, while two justices voted the other way). The Supreme Court of New Jersey is composed of seven justices; two did not participate in this opinion. It goes without saying this was a very close call in this extremely important area of the law.
]]>The defendant was stopped at approximately 3:30 a.m. on July 31, 2010 in Seaside Heights for illegal window tinting and loud exhaust. He appeared nervous and had a strong odor of alcohol on his breath. He admitted to having one beer, but the officer detected the odor of hard alcohol. The officer requested the defendant step out of the vehicle for field sobriety testing, and he was subequently arrested and charged with DWI.
In Seaside Heights Municipal Court, the defendant argued there was insufficient probable cause to justify the field sobriety testing and moved to suppress evidence derived from the test. The judge denied the motion, finding that the officer had a reasonable and articulable suspicion that the defendant was intoxicated. The municipal court judge's ruling was upheld on appeal in Ocean County Superior Court, which was further upheld by the Appellate Division. The Appellate Court held that DWI field testing requires no more that a reasonable suspicion on the part of the officer that the driver was intoxicated - not probable cause. The results of field sobriety tests extablish probable cause for a DWI arrest. Since field sobriety testing is routine and non-intrusive, no more than a reasonable articulable suspicion of intoxication is required for a police officer to request a driver to submit to such testing.
This is a significant case for DWI defense practitioners throughout New Jersey, especially here at the Jersey Shore, Monmouth and Ocean Counties.
]]>In State v Lawless, the Court held that the trial judge should not have considered the accident's impact on the injured passengers because the defendant pleaded guilty only to aggravated manslaughter and driving while intoxicated ("DWI"), and not vehicular assault as to the injured passengers. At the time of sentencing, trial judges are required to perform an analysis of the statutory aggravating and mitigating factors, determine which factors apply to the facts of the particular case, and determine whether the aggravating factors outweigh the mitigating factors, or vice versa. The sentencing judge in Lawless placed great weight on the harm inflicted by the defendant on the passengers as an aggravating factor, which the Appellate Court found to be in error because the defendant did not plead guilty to a crime directly impacting those passengers. The Appellate Court also found fault with the sentencing judge's decision to give great weight as an aggravating factor to the defendant's numerous prior DWI convictions, which the sentencing judge characterized as a prior criminal record. DWI is not a crime under New Jersey law; hence it was erroneous for the sentencing judge to consider the defendant's prior DWI convictions as a "prior criminal record."
]]>The refusal law, N.J.S.A. 39:4-50.4, provides that a person who refuses to submit to chemical breath testing faces a minimum 7 month loss of driving privileges for a first offense, 2 year loss of privileges for a second offense, and a 10 year revocation of driving privileges for a third or subsequent offense. A person arrested for DWI must be apprised by the police as to the penalties for refusal in a formal written statement that is used throughout the state. In the Marquez case, the defendant, arrested for DWI, claimed that he told the police he did not understand English, and therefore did not comprehend the penalties for refusal. The Supreme Court voided the defendant's refusal conviction, holding that the penalties/warnings for refusal must be read to the individual in a language he/she speaks or understands.
The bill recently passed by the Assembly Law and Public Safety Committee would render the Marquez decision moot, and amend the refusal law to provide that the penalty warning requirement is not an essential element of refusal, and that failure to receive the warning regarding the consequences for refusing is not a defense to a refusal charge.
The pending legislation is likely to engender a tremendous amount of opposition amoung criminal defense attorneys throughout the state, including attorneys in Ocean and Monmouth Counties who handle DWI defense, in that it runs contrary to all notions of due process and fundamental fairness. This is legislation worth keeping an eye on. Stay tuned.
]]>Stalking is currently a criminal offense, defined at N.J.S.A. 2C:12-10 as "purposely or knowingly engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his [or her] safety or the safety of a third person or suffer other emotional distress." Stalking is a crime of the 4th degree, meaning that someone convicted of this crime is exposed to up to 18 months in State Prison. It is a crime of the 3rd degree (3 to 5 years in State Prison), if the person so convicted committed the crime in violation of an existing court order, if the conviction represents a second or subsequent offense against the same victim, or if the the person committed the crime while serving a prison sentence or while on parole or probation for an indictable offense.
The legislation creating a "civil" cause of action for victims of stalking, which has recently passed the State Assembly Judiciary Committee, would permit victims to file lawsuits for monetary damages incurred as a result of the stalking activity, plus costs of suit, attorney's fees, and punitive damages. The burden of proof in a civil case (preponderance of the evidence), is much less than the burden of proof in a criminal case (beyond a reasonable doubt). As such, if this legislation were to pass both houses of the Legislature and be signed into law by the Governor, it is conceivable that a stalking case may not be provable beyond a reasonable doubt in a criminal context, yet a victim of stalking might still be able to recover monetary damages in a civil action arising out of the same facts and circumstances. Think OJ!
]]>In State v. Zeikel, the defendant had 3 previous drinking-and-driving related convictions: his first was in New York in 1981 for driving while ability impaired (DWAI); his second was also in New York in 1984 for DWAI and refusing to submit to a chemical test; and his third was in 1994 in Chatham, New Jersey, for DWI and refusal. The offense giving rise to this appeal occurred in 2009 in Bedminster, New Jersey. After pleading guilty to DWI in 2010, the Bedminster Municipal Court judge sentenced defendant as a third or subsequent offender, taking into account his New York convictions in the 1980s. He was sentenced to 180 days in the county jail along with a 10 year suspension of his driving privileges, as well as the mandatory financial penalties.
On appeal, the Appellate Court concluded that the defendant was properly sentenced as a third or subsequent offender based upon his prior conviction in New Jersey for DWI, and his two prior convictions in New York for DWAI. The Court held that the New York convictions were of a "substantially similar nature" to that of a DWI violation in New Jersey, which count as prior convictions under the New Jersey DWI statute, N.J.S.A. 39:4-50. Despite various legal and constitutional arguments advanced by the defense to the contrary, the Court sent a loud and clear message that out of state convictions for "DWI-like" offenses will serve to enhance a subsequent DWI conviction in New Jersey, and result in greater penalties including significant jail time and loss of driving privileges.
The Zeikel decision reaffirms existing law and will continue to have legal significance throughout the State, including DWI prosecutions in Monmouth and Ocean Counties.
]]>The case, State v. Thornton out of Morris County, involves a defendant whom prosecutors alleged created a phony Facebook page in which she posted photos and personal information about her ex-boyfriend, a former narcotics detective, including comments purportedly made by him. Included in those postings were comments, all attributed to the ex-boyfriend/former detective, that he was "high all the time," suffered from herpes, and sought the services of prostitutes and professional female escorts.
New Jersey law, specifically N.J.S.A. 2C:21-17, makes it illegal to impersonate another individual or assume a false identity, and perform an act in furtherance of such impersonation or false identity, for the purpose of obtaining a benefit for himself or another or to injure or defraud someone else. Depending on the facts and allegations of the specific case, a violation of this statute may constitute a crime of the fourth degree (punishable by up to 18 months in prison), third degree (punishable by 3 to 5 years in prison), or second degree (punishable by 5 to 10 years in prison).
In the Thornton case, the defense argued that the identity theft statute makes no mention of electronic communications (such as by way of Facebook), and that the charge should be dismissed. The trial court disagreed, and ruled the fact that the means of committing the crime are not specifically set forth in the statute does not lead to the conclusion that a crime was not committed.
Internet identity theft is a growing concern in New Jersey and across the nation. Although the Thornton case arises out of Morris county, its reverberations are likely to be felt in courts throughout the state, including those in Monmouth and Ocean Counties.
]]>In State v. Melendez, the appellate court noted it is well-settled law in New Jersey that the police may question an individual in custody without administering the so-called Miranda warnings where "exigent circumstances" exist such that the safety of the public at large is threatened. These types of cases typically involve weapons. The public safety exception generally requires the State to demonstrate an objectively reasonable need to protect the public or police from immediate danger involving a weapon, and that the police questioning was related solely to that danger and necessary in order to protect the public. In Melendez, the Appellate Division held that that there is legally and practically no valid distinction between a pre-Miranda and post-Miranda application of the public safety exception. Public safety concerns are evident in a case where a defendant in custody requests the presence of counsel, and the police subsequently learn of a threat posed by the defendant's discarding of a weapon in a public place. In such a situation, the "exigent circumstances," i.e., finding the weapon before someone is hurt or killed, outweigh the need for the police to wait for an attorney to arrive to insure that any waiver of rights was voluntary and informed, according to the ruling of the court.
]]>In State v. Koch, police reponded to a private home after receiving complaints from a neighbor concerning youths smoking marijuana and acting disorderly. Although many of the partygoers fled, the investigating offiicer detained approximately 40 to 50 people. He lined them up and sniffed each one's breath to detect for the odor of alcohol. The defendant purportedly blurted out that he had consumed a beer as the officer was approaching him. He was subsequently issued a summors for underage drinking.
Although he was convicted of the charge in Municipal Court, which was affirmed in Superior Court, the Appellate Division reversed the conviction based upon the United States Supreme Court's decision in Miranda v. Arizona, which held that individuals in police custody or the equivalent of custody who are subject to interrogation must be read certain rights. Among these rights are the right to remain silent, as well as the right to have an attorney present during questioning. The Appellate Court in Koch held that the officer's detaining of the partygoers and sniffing their breath amounted to a form of implied questioning as to underage consumption in a custodial setting. The Court noted that custodial interrogation consists not only of express questioning, but also of words and actions that the police should know are reasonably likely to elicit incriminating responses.
That would now appear include detaining someone and sniffing that person's breath as a predicate to charging him or her with underage drinking.
]]>The Court held that a statute affecting a person convicted of a crime violates the ex post facto clause if its adverse effects are so punitive in nature, that the statute is no longer civil and regulatory in nature, even if that was the stated intention of the Leglislature. The Riley case involved an individual who was convicted of attempted sexual assault in 1986, and finished serving his sentence at Avenel (the Adult Diagnostic and Treatment Center for repetitive and compulsive sex offenders) in early 2009. Later that year, the State classified him as a high risk offender for purposes of Megan's Law, and ordered him to wear a GPS device on his ankle 24 hours a day. The Court rejected the State's argument that this requirement was regulatory and nonpunitive, and determined that the ankle bracelet law was so punitive that it could only be applied to individuals who committed sexual offenses after the law's enactment.
In deciding Riley, the Appellate Division followed a fundamental constitutional provision that someone cannot be subject to punishment retroactively. This case is likely to have major ramifications statewide, including sex offense cases in Monmouth and Ocean Counties.
]]>In State v. Henderson, the Court determined that the current standards in place for assessing the reliability of eyewitness identification is not adequate, in that those standards fail to deter inappropriate conduct by the police, and place too much stock in a jury's ability to properly evaluate identification evidence. The Court held that when a defendant can show some evidence of suggestiveness on the part of the police, a pre-trial hearing is necessary for the judge to determine the admissibility of the identification evidence. Also, the courts must develop new and improved jury charges (i.e., instructions on the law given to jurors by the judge after the case is concluded) on eyewitness identifications in order to assist jurors in evaluating eyewitness identification evidence. The Court's holding is largely premised in the fact that a vast body of scientific research about human memory has emerged over the years -- research which suggests that multiple variables can affect and diminish memory and lead to misidentifications.
In the companion decision in State v. Chen, the Court held that even in the absence of police action, if a defendant can present evidence that an eyewitness identification was made under highly suggestive circumstances that could lead to misidentification, judges should conduct pre-trial hearings to determine the admissibility of the identification evidence. The burden is nevertheless on the defendant to show a very substantial likelihood of irreparable misidentification before a judge can rule the identification evidence inadmissible.
Naturally, these two Supreme Court decisions are vitally important to New Jersey criminal defense attorneys, including criminal attorneys in Ocean and Monmouth Counties, where identification is an issue in a particular case.
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