Senate Passes S1565: Internet Casino Gambling May Become a Reality

 

The move towards legalizing online gambling in New Jersey gained momentum this week when a Senate Committee passed S1565, which would authorize casinos in Atlantic City to set up Internet gambling access for their patrons.

Specifically, S1565 provides, most pertinently:

  • all games, including poker, which may be played at a casino, as well as variations or composites thereof, may be offered through Internet wagering;
  • all equipment used by a licensee to conduct Internet wagering must be located either in a restricted area on the premises of the casino hotel or in a secure facility inaccessible to the public and specifically designed for that purpose off the premises of a casino hotel but within the territorial limits of Atlantic City and all Internet wagers will be deemed to be placed when received in Atlantic City by the licensee regardless of the player’s physical location within this State; any intermediate routing of electronic data in connection with a wager will not affect the fact that the wager is placed in Atlantic City;
  • in order to participate in Internet wagering, a player must be physically present in New Jersey whenever a wager is placed by that player;
  • there is imposed an annual tax on Internet wagering gross revenues in the amount of 10% of such gross revenues which will be paid into the casino revenue fund; the 8% tax on casino gross revenues will not apply to Internet wagering gross revenues; and the investment alternative tax will apply to Internet wagering gross revenues, except that the investment alternative tax on these revenues will be 5% and the investment alternative will be 2.5%, with the proceeds thereof used as provided by law;
  • procedures for the crediting and debiting of a wagering account;
  • it will be lawful for a casino licensee to provide marketing information by means of the Internet to players engaged in Internet wagering and to offer those players incentives to visit the licensee’s casino in Atlantic City;
  • required features of Internet wagering to assist the wagering account holder;
  • required features to assist problem gamblers and potential problem gamblers;
  • penalties for violations of the provisions of the bill;
  • an annual fee for Internet wagering permit holders for the initial permit and permit renewal to cover the costs of regulation, with the initial fee to be at least $200,000 and the renewal fee to be at least $100,000; and
  • an annual fee for Internet wagering permit holders of $100,000 to be allocated to programs to prevent compulsive gambling and to assist compulsive gamblers.

The Bill also provides that the Division of Gaming Enforcement will adopt regulations for the implementation and conduct of Internet wagering that are consistent with regulations governing casino gambling generally.

The Bill was amended to its current form to address concerns voiced by Governor Christie last year over the constitutionality of a similar proposed measure, which he ultimately vetoed.

To read S1565 in its entirety, go to:

http://www.njleg.state.nj.us/2012/Bills/S2000/1565_I1.HTM

Push back is allegedly coming from the horse racing industry, whose representatives asserted at the hearing on Tuesday that their exclusion from the Bill will result in the loss of millions of dollars in revenue that can potentially be generated by Internet gambling. Thomas Luchento, President of the Standardbred Breeders and Owners Association of New Jersey claimed that the Bill supports one industry at the expense of another. Noting that patrons could come to the racetrack with their laptops and gamble online without wagering on the horses (thereby allowing for gaming on the premises with no profit for the tracks), Luchento argued, “Why is it different if I have [an Internet gambling] room at the racetrack?” 

State Senator Jennifer Beck (R-Monmouth), whose County is home to Monmouth Park, is an avid supporter of the horse racing industry. She said that sought a way for the racetracks to share in the potential revenue, but the options are not likely to survive a legal challenge or Governor Christie’s veto.

The matter will now head to the Senate floor.

 

Residential Burglaries: The Push to Upgrade

On March 15, 2012, the New Jersey Assembly passed A1035, a Bill which seeks to upgrade residential burglary from a crime of the Third Degree to a crime of the Second Degree. The Bill further seeks to upgrade residential burglary from a crime of the Second Degree to a crime of the First Degree if committed while armed. This represents a drastic departure from the current law and will have serious implications in terms of the jail time exposure for those convicted, should the Bill become new law.

In its current form, the law is as follows:

Burglary, N.J.S.A. 2C:18-2 

a.   Burglary defined. A person is guilty of burglary if, with purpose to commit an offense therein or thereon he:

(1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter;

(2) Surreptitiously remains in a research facility, structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so; or

(3) Trespasses in or upon utility company property where public notice prohibiting trespass is given by conspicuous posting, or fencing or other enclosure manifestly designed to exclude intruders.

b.   Grading. Burglary is a crime of the second degree if in the course of committing the offense, the actor:

(1) Purposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone; or

(2) Is armed with or displays what appear to be explosives or a deadly weapon.

 Otherwise burglary is a crime of the third degree. An act shall be deemed “in the course of committing” an offense if it occurs in an attempt to commit an offense or in immediate flight after the attempt or commission.

 At present, “structure” includes any place adapted for overnight accommodation of persons (i.e., a residence), thereby making the burglary of a residence a crime of the Third Degree. However, A1035 seeks to add the following language to subsection b. of the current law, thereby making the burglary of a residence a crime of the Second Degree, and further amending the law as follows:

 (3) Unlawfully enters or surreptitiously remains in a dwelling or other structure adapted for overnight accommodation of persons, whether or not a person is actually present.

Burglary is a crime of the first degree if in the course of committing the offense the actor unlawfully enters or surreptitiously remains in a dwelling or other structure adapted for overnight accommodation of persons, whether or not a person is actually present, and is armed with or displays what appear to be explosives or a deadly weapon.

 A crime of the First Degree is punishable by a term of imprisonment between 10 and 20 years, a fine not to exceed $200,000 or both. A crime of the Second Degree is punishable by a term of imprisonment between 5 and 10 years, a fine not to exceed $150,000 or both. A crime of the Third Degree is punishable by a term of imprisonment between 3 to 5 years, a fine not to exceed $15,000 or both.

 A1035 clarifies that a person who commits a residential burglary under the new law (which would then be a crime of the Second Degree) would not be subject to the provisions of the No Early Release Act (“NERA”), but a person who commits the crime of armed residential burglary under the new law (which would then be a crime of the First Degree) would be subject to NERA. Under NERA, persons convicted of certain enumerated violent crimes are required to serve a minimum term of at least 85% of the sentence imposed. See N.J.S.A. 2C:43:7.2.

 To read A1035 in its entirety, go to: http://www.njleg.state.nj.us/2012/Bills/A1500/1035_I1.PDF

 The change is most likely the result of a strong push from law enforcement authorities, who call the burglary law in its current form “a joke.” “The reward of burglaries outweighs the risk,” says Steve Cucciniello, Chief of Detectives at the Bergen County Prosecutor’s Office. “Nothing is going to change until the law changes.” Those same authorities often compare the burglary law in New Jersey with the law in New York, where residential burglary is already a crime of the Second Degree, a felony that carries with it a minimum term of imprisonment between 3½ and 15 years.

 Joke or not, being charged with the crime of residential burglary can have serious consequences, which could become much more severe should A1035 become law.

Simplifying a Complex Case: Ravi Guilty on All Counts in Webcam Spying Trial

On Friday, March 16, 2012, a Middlesex County jury convicted former Rutgers University student Dharun Ravi, now 20-years old, of every count of the Indictment under which he was charged.  It was the first case in which invasion of privacy was linked to a hate crime. 

The victim was Ravi’s Rutgers University roommate, Tyler Clementi, who leaped to his death from the George Washington Bridge days after Ravi used a webcam to spy on an intimate dorm room encounter between he (Clementi) and an older man.  The case sparked national awareness of sensitive issues that were critical to the trial, including cyber-bullying, teenage suicide, the harassment of gay teenagers, and the impact of evolving technology.

Although the jury found Ravi not guilty of portions of certain counts pertaining to the older man Clementi was seen with during the webcam spying, who was only ever identified as M.B., Ravi was found guilty on a total of 15 counts.  Most significantly, the jury found Ravi guilty of Bias Intimidation, a crime of the Second Degree, indicating that they believed Ravi had targeted Clementi because he was gay and knew his actions would intimidate him.

Bias Intimidation, N.J.S.A. 2C:16-1

a.    Bias Intimidation.  A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of [a specified offense]; N.J.S.A. 2C:33-4 (Harassment); N.J.S.A. 2C: 39-3, 39-4, or 39-5 (Weapons Offenses),

(1)  with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or

(2)  knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or

(3)  under circumstances that cause any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim’s property was selected to be the target of the offense because of the victim’s race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

Generally, bias intimidation is a crime one degree higher than the most serious underlying crime specified.  For example, as in this case, if the underlying crime is a crime of the Third Degree (such as here, where the Defendant was charged with – and convicted of – Invasion of Privacy, contrary to the provisions of N.J.S.A. 2C:14-9), then the crime of Bias Intimidation is one degree higher, namely, a crime of the Second Degree.

A crime of the Second Degree is punishable by up to 10 years in New Jersey State Prison. Because Ravi is a legal immigrant from India, he now also faces the possibility of deportation upon his release from prison.

Advocates for the gay community called the verdict a landmark, saying that it sent a clear message that intimidation would no longer be tolerated. “This verdict, combined with New Jersey’s new anti-bullying law, sends a powerful signal across the state and, frankly, across the county, that the days of a ‘kids-will-be-kids’ defense to brutal bullying are now over, and thank God for that,” said Steven Goldstein, Chairman of Garden State Equality, an advocacy group.

After the verdict, Clementi’s father preached tolerance in the name of his 18-year old son, who now symbolizes the plight of bullied gay teens. “You can make the world a better place,” he was quoted as saying.  “The change you want to see in the world begins with you.”

Ravi’s sentencing has been scheduled for May 21, 2012.

Wear Green, not Cuffs: Crime and St. Patrick's Day

New Jersey has the most parades (26) dedicated to the celebration of St. Patrick’s Day than any other state in the country.  (http://www.saintpatricksdayparade.com)

This coming weekend, various municipalities throughout New Jersey will host their parades.  In part because of the excellent weather forecast, large crowds are expected. 

Ocean County (Seaside Heights) – Saturday, March 10, 2012

The theme of this year’s parade is “Honor and Remember” – a tribute to local families who have lost loved ones who served in the armed forces.  The parade is expected to draw more than 75,000 attendees.  (http://www.oceancountysaintpatricksdayparade.com) 

Morris County (Morristown) – Saturday, March 10, 2012

The municipality highlights the “family-oriented” nature of its parade, which is expected to draw approximately 70,000 attendees.  (http://paradeday.com)

Union County (Union) – Saturday, March 10, 2012

Organizers boast that this is one of the fastest growing parades.  This year’s event is dedicated to those whose have been touched by cancer.  (http://unioncountystpatricksdayparade.com

South Amboy – Saturday, March 10, 2012

(http://southamboyparade.com

Somerville – Sunday, March 11, 2012

(http://somervillesaintpatricksparade.com)

Woodbridge – Sunday, March 11, 2012

(http://www.amerirish.com)

Hackettstown – Sunday, March 11, 2012

(http://www.hackettstownbid.com)

One municipality that did not have a parade this year was Hoboken, citing its “inability to protect our spectators, bands and participants” as the reason.  (http://www.nj.com/hudson/index.ssf/2012/01/hoboken_st_patricks_day_parade_1.html)

Despite the cancellation, the celebration went on.  And while crime rates dropped significantly from 2011, the Hoboken Police still issued 92 summonses (as opposed to last year’s 296) this year.  Most of the summonses were written for disorderly house parties and open containers, and eight were for urinating in public.  A total of 68 tickets were also issued for motor vehicle violations, including driving while intoxicated (“DWI”). (http://hoboken.patch.com/articles/less-crime-hoboken-st-patricks-day)

One thing is for certain – parade or not – with excessive celebration, comes police involvement.  If you find yourself in a situation where you are charged with a crime, a disorderly persons (“DP”) offense, a municipal ordinance violation, or a motor vehicle violation, do not under-estimate the potential consequences.  The most common charges seen around this time of year are: 

  • Assault, in violation of N.J.S.A. 2C:12-1b
  • Simple Assault, in violation of N.J.S.A. 2C:12-1a
  • Resisting Arrest, in violation of N.J.S.A. 2C:29-2
  • Disorderly Conduct, in violation of N.J.S.A. 2C:33-2
  • Possession/Consumption of Alcoholic Beverage by a Minor, in violation of N.J.S.A. 2C:33-13
  • Driving While Intoxicated (“DWI”), in violation of N.J.S.A. 39:4-50
  • Open Container (municipal ordinance – varies by municipality)
  • Public Intoxication (municipal ordinance – varies by municipality)
  • Urinating in Public (municipal ordinance – varies by municipality)

Note that, even with a simple municipal ordinance violation, a fine of up to $2,000 can still be imposed.  So, it is always in your best interest to consult with an attorney before entering a plea of “guilty” to any crime, offense, or violation.

Have fun, but be smart.

Search and Seizure: Limiting Government Intervention on the Expectation of Privacy

Underlying practically all of the legal protections afforded to individuals against government intrusion is the notion that there is some zone of activity in which persons expect that what they say and do will be private.

In the area of search and seizure, the fundamental protection is found in the Fourth Amendment of the United States Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In New Jersey, the principle protection is found in Article 1, Paragraph 7 of the New Jersey Constitution, which practically mirrors the language of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.

The privacy issue in search and seizure cases is commonly discussed in the context of “a reasonable expectation of privacy.”  As a general rule, legal and social norms dictate whether an expectation of privacy will be held to exist and/or whether that expectation is reasonable under the circumstances.

Of note, New Jersey maintains that its constitutional provision provides more comprehensive protection that the Fourth Amendment and, as a result, has found privacy expectations to be reasonable in a number of situations where federal courts have found otherwise.

Taking that into account, it was surprising (albeit, pleasantly) when the United States Supreme Court recently issued its opinion in the matter of United States v. Jones, 565 U.S. ____ (2012) in which it was held that law enforcement’s warrantless installation and use of a GPS device to track a suspect’s motor vehicle was a violation of the privacy rights protected by the Fourth Amendment.  It appears that the United States Supreme Court is (finally) taking a more comprehensive approach to privacy protections in this era of rapidly developing technology.

The Jones decision affirmed a ruling by the United States Court of Appeals for the District of Columbia, which had reversed the conspiracy conviction of drug trafficker Antoine Jones.  The lower court found that the warrantless use of a GPS device to monitor Jones’ whereabouts for 28 days violated the Fourth Amendment.

 “It is important to be clear about what occurred in this case:  The government physically occupied private property for the purpose of obtaining information,” wrote Justice Antonin Scalia for the unanimous Court. 

“Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment,” Scalia explained.  “Where, as here, the government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.  Trespass alone does not qualify, by there must be conjoined with that what was present here: an attempt to find something or to obtain information.”

To read the opinion in its entirety, go to:  http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

The Jones decision is already having an effect on law enforcement practices.  On Friday, February 24, 2012, FBI General Counsel Andrew Weissmann confirmed, at a conference in San Francisco, that the decision resulted in the FBI turning off 3,000 GPS devices, many of which were stuck underneath motor vehicles.  Apparently, the decision is also causing the FBI to reconsider its stance on garbage can searches.

Numerous other statutes address concerns about technological advances.  Among the more significant are the Wiretapping Statute, 18 U.S.C. §2510, et seq. (wiretapping is limited to those instances where there is probable cause to believe that intercepted conversations will provide evidence of certain enumerated serious offenses); the Privacy Protection Act, 42 U.S.C. §2000aa (limiting the circumstances under which government agents can seek search warrants for the offices of the news media); and the Right to Financial Privacy Act, 12 U.S.C. §3401, et seq. (absent exigent circumstances, personal financial records maintained by banking institutions may not be acquired by law enforcement absent consent, a search warrant, or subpoena, or other written demand with advance notice to the individual with an opportunity to object).

 The Jones decision evidences continued movement in the right direction.

 

Gun Charges in New Jersey: The Graves Act

The Graves Act: An Overview

The “Graves Act,” N.J.S.A. 2C:43-6(c), requires the imposition of a minimum term of imprisonment and parole ineligibility for certain gun-related crimes.  Until its amendment in 2008, the “Graves Act” only applied when a person was convicted of possessing or using a firearm while in the course of committing certain predicate crimes, or possession of a firearm for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a).  However, following that amendment, the list of offenses that are now subject to the “Graves Act” was significantly expanded and now includes a number of possessory firearms crimes, including:

·                     Unlawful Possession of a Machine Gun, Handgun, Rifle or Shotgun, in violation of N.J.S.A. 2C:39-5(a), (b) or (c). 

·                     Possession of a Sawed-Off Shotgun, in violation of N.J.S.A. 2C:39-3(b).

·                     Possession of a Defaced Firearm, in violation of N.J.S.A. 2C:39-3(d).

·                     Possession of a Firearm While in the Course of Committing a Drug Distribution or Possession With Intent to Distribute Offense, in violation of N.J.S.A. 2C:39-4.1(a).

·                     Possession of Certain Weapons by Persons Previously Convicted of Specified Offenses, in violation of N.J.S.A. 2C:39-7(a) or (b)(2).

·                     The Manufacture, Transport, or Disposition of a Machine Gun, Sawed-Off Shotgun, or Assault Firearm, in violation of N.J.S.A. 2C:39-9(a), (b), or (g).

·                     The Defacement of a Firearm, in violation of N.J.S.A. 2C:39-9(e).

 

Except as otherwise provided or negotiated, a person convicted of any of the foregoing crimes must be sentenced to a term of imprisonment with a minimum term of parole ineligibility fixed at, or between, one-third to one-half of a sentence imposed, or three years, whichever is greater (or eighteen months in cases involving crimes of the Fourth Degree).  In other words, if a person is convicted of the “Graves Act” offense of Unlawful Possession of a Handgun, in violation of N.J.S.A. 2C:39-5(b), a crime of the Second Degree, the sentencing range is between five and ten years New Jersey State Prison with a period of parole ineligibility of between three and five years. 

Additionally, a person convicted of a “Graves Act” offense who has previously been convicted of certain firearms offenses must be sentenced to a mandatory extended term of imprisonment, pursuant to N.J.S.A. 2C:44-3(d).  When that “repeat gun offender” statute applies, the sentence imposed must include a minimum term of parole ineligibility fixed at or between one-third to one-half of the extended term sentence, or five years, whichever is greater. 

Moreover, N.J.S.A. 2C:39-5(i) provides that a person convicted of the unlawful possession of a machine gun, handgun, or assault firearm must be sentenced to parole ineligibility term of five years if the sentencing court finds that the organized criminal activity aggravating factor – N.J.S.A. 2C:44-1(a)(5) – applies.

Potential Resolutions to Graves Act Offenses

The Pre-Trial Intervention (PTI) Program

In general, persons charged with any crime of the First or Second Degree, or those charged with an offense that carries a mandatory minimum term of imprisonment, such as the “Graves Act,” are subject to a presumption of PTI ineligibility.

While a defendant’s PTI application cannot be categorically denied, the Legislature’s 2008 policy decision to significantly upgrade the seriousness of firearm offenses has caused prosecutors to withhold their consent to a defendant’s admission to PTI unless the case involves extraordinary and compelling circumstances that fall outside the heartland of the legislative policy to deter unauthorized gun possession.  For example, such a rare case would be one where the defendant has no prior involvement with the criminal justice system, the defendant lawfully acquired and possessed the firearm in a different state, and the defendant’s presence in New Jersey was incident to lawful travel.

For information regarding the lawful transport of firearms into/through New Jersey, see:  http://www.njsp.org/about/fire_trans.html

Probation

Prosecutors will generally withhold their consent to a probationary sentence unless there are extraordinary and compelling reasons that take the case outside the heartland of the legislative policy to deter unauthorized gun possession.  For example, such a rare case would be one where the defendant has no prior involvement with the criminal justice system, the firearm was unloaded, and the circumstances make clear that the firearm posed no risk to officer or public safety.  In such rare instances, the imposition of a state prison term would constitute a serious injustice that overrides the need to deter others from unlawfully possessing a firearm.

Waiver or Reduction of Sentence

N.J.S.A. 2C:43-6.2 outlines a procedure to allow for the reduction or waiver of an otherwise mandatory minimum term of imprisonment and parole ineligibility imposed under the “Graves Act.”  In determining whether to move for or approve the waiver or reduction of a minimum term of parole ineligibility under that statute, prosecutors generally consider all relevant circumstances concerning the offense conduct and the offender, including those aggravating and mitigating circumstances set forth in N.J.S.A. 2C:44-1.

Note, however (as indicated above), that a waiver or reduction will not be approved when there is an indication that the offender may be subject to the organized criminal activity aggravating factor.

 

Make Love, Not War: Valentine's Day and the "Prevention of Domestic Violence Act of 1991," N.J.S.A. 2C:25-17, et seq.

In honor of Valentines Day, it is important to remember the long lasting effects of domestic violence including potential criminal charges and collateral consequences. The consequences of being charged with a crime of domestic violence can be dire. Further, the entry of a Temporary or Final Restraining Order (“TRO” and “FRO”) can have lasting effects.

In 1991, the New Jersey Legislature found and declared that:

·                     domestic violence is a serious crime against society;

·                     there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants;

·                     a significant number of women who are assaulted are pregnant;

·                     victims of domestic violence come from all social and economic backgrounds and ethnic groups;

·                     there is a positive correlation between spousal abuse and child abuse; and

·                     children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.

See N.J.S.A. 2C:25-18

Therefore, in enacting the “Prevention of Domestic Violence Act of 1991” it was the Legislature’s intent to assure the victims of domestic violence the maximum protection from abuse the law can provide. 

When an alleged act of domestic violence occurs, the victim has the opportunity to file a criminal complaint (if appropriate), a civil complaint/TRO (if appropriate), or both.  The complaint(s) can be signed where the alleged act of domestic violence occurred, where the defendant resides, where the victim resides, or where the victim is sheltered or temporarily staying.  The filing of a criminal complaint does not preclude the victim from filing a domestic violence complaint and seeking a TRO.  A person may also file criminal charges without seeking a TRO.

For domestic violence to be found, the defendant and victim must have a relationship, as defined under the statute.  Specifically, a “victim of domestic violence” means any person who is 18 or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member.  (This means, for example, that a roommate relationship qualifies.)  The definition also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant.  It further includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.

The criminal offenses in New Jersey that can constitute domestic violence are as follows:

            1.         Homicide                                N.J.S.A. 2C:11-1, et seq.

            2.         Assault                                    N.J.S.A. 2C:12-1

            3.         Terroristic Threats                N.J.S.A. 2C:12-3

            4.         Kidnapping                             N.J.S.A. 2C:13-1

            5.         Criminal Restraint                 N.J.S.A. 2C:13-2

            6.         False Imprisonment             N.J.S.A. 2C:13-3

            7.         Sexual Assault                        N.J.S.A. 2C:14-2

            8.         Criminal Sexual Contact       N.J.S.A. 2C:14-3

            9.         Lewdness                                N.J.S.A. 2C:14-4

            10.       Criminal Mischief                   N.J.S.A. 2C:18-3

            11.       Burglary                                    N.J.S.A. 2C:18-2

            12.       Criminal Trespass                 N.J.S.A. 2C:18-3

            13.       Harassment                             N.J.S.A. 2C:33-4

            14.       Stalking                                      N.J.S.A. 2C:12-10

Note that the crimes on the list range from Homicide, a crime of the 1st Degree which can be punishable in some instances by a term of life imprisonment without eligibility for parole, to Harassment, which can range from a crime of the 4th Degree (punishable by up to 18 months New Jersey State Prison) to a Petty Disorderly Persons offense (punishable by up to 30 days in the county jail).

Note also that a conviction for a crime of domestic violence requires the payment of additional fines.

Collateral Consequences of a Finding of Domestic Violence:

Even if there is a only a finding of domestic violence for purposes of the entry of a Final Restraining Order (“FRO”), there can still be serious consequences.

For instance, following a hearing and finding of domestic violence, the court may issue an Order granting any or all of the following relief:

·                     Weapons

                      The entry of an TRO/FRO can prohibit a defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.A. 2C:58-3 for the entire period the TRO/FRO is in effect.

·                     Further Acts of Violence

·                     Exclusive Possession of Residence

                       A court can order exclusive possession of the residence or household to the victim regardless of whether it is jointly or solely owned by the parties or jointly or solely leased by the parties.   If it is not possible for the victim to remain in the residence, the court may even order the defendant to pay the victim’s rent at a residence.

·                     Parenting Time and Risk Assessments

·                     Monetary Compensation (including Support)

                         A court can order the defendant to pay the victim monetary compensation for losses suffered as a direct result of the domestic violence.  Losses can include loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorney’s fees, court costs, and compensation for pain and suffering. 

·                     Professional Domestic Violence Counseling

·                     Location Restraints

·                     Communication Restraints

                        A court can prohibit the defendant from making personal, written, or telephonic contact with the victim or with the victim’s family members, employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.  Courts

·                     Other Support and Personal Property

·                     Temporary Custody

·                     Law Enforcement Accompaniment

·                     Prohibition From Possessing Weapons

·                     Prohibition Against Stalking

·                     Any other appropriate relief, including monitoring that relief

See N.J.S.A. 2C:25-29b

 

Brimage Guidelines: Mandatory Periods of Parole Ineligibility ("Stip Time") for Certain Drug Crimes

In State v. Brimage, 153 N.J. 1 (1998), the New Jersey Supreme Court was called upon to address the constitutionality of N.J.S.A. 2C:35-12, which the Court characterized as an “atypical” sentencing statute because it shifted sentencing power from the judiciary to the prosecutor.  The Court held that to satisfy the constitutional requirements of the separation of powers doctrine, prosecutors must be guided by specific, universal standards in their waiver of mandatory minimum sentences under the Comprehensive Drug Reform Act.  Because the then-existing plea negotiation guidelines were not adequate, the Court directed the Attorney General to issue new guidelines – now known as the “Brimage Guidelines” – to promote uniformity and to prevent arbitrariness.  The new guidelines became effective on May 20, 1998.

Often times, defense attorneys negotiate plea agreements on behalf of their clients, but still reserve the opportunity to “argue for less” at the time of sentencing – and quite frequently judges agree and render lower sentences than those called for under the plea agreements.  However, unlike with ordinary plea agreements, an agreement made under the “Brimage Guidelines” binds judges not to impose a lesser term than that to which the parties agree.

Therefore, the consequences of being charged with a drug offense that may subject you to sentencing under the “Brimage Guidelines” is serious.  For example, if you are charged with a violation of 2C:35-5, Distribution/Possession With Intent to Distribute a Controlled Dangerous Substance (“CDS”) and you are first-time offender, you may be eligible to enter a plea agreement that will only subject you to a non-custodial sentence (i.e., probationary sentence).  However, if you are charged with a violation of 2C:35-5, Distribution/Possession With Intent to Distribute CDS and you are a repeat offender, the “Brimage Guidelines” will likely be applicable and your sentence will likely be a term of imprisonment in New Jersey State Prison with a mandatory period of parole ineligibility.


Brimage Guidelines” apply to violations of the following New Jersey drug statutes:

2C:35-3            Leader of a Drug Trafficking Network

2C:35-4            Operating a Drug Production Facility

2C:35-5            Distribution/Possession With Intent to Distribute – First Degree OR

2C:35-5            Distribution/Possession With Intent to Distribute – Repeat Offender

2C:35-6            Using a Juvenile in Drug Distribution

2C:35-7            Distribution/Possession With Intent to Distribute in a School Zone

Most notably, on January 12, 2010, N.J.S.A. 2C:35-7 (Distribution/Possession With Intent to Distribute CDS in a School Zone) was amended to give discretion under certain circumstances to waive or reduce the mandatory term of imprisonment and parole ineligibility in school zone cases.  The amendment was intended to address concerns about the broad geographic sweep of the school zone offense.  In some jurisdictions, and especially in densely populated urban areas, most locations are situated within 1,000 feet of a school.  As a result, the law’s mandatory minimum sentencing provisions can apply even though the conduct did not directly endanger schools or school-aged children.

The circumstances under which courts can waive or reduce the mandatory term of imprisonment and parole ineligibility in school zone cases are set forth in N.J.S.A. 2C:35-7b(1):

a.              the extent of the defendant’s criminal record and the seriousness of any prior offenses for which the defendant has been convicted;

b.              the specific location of the present offense in relation to school property and the reasonable likelihood of exposing children to drug-related activities at that location;

c.               whether school was in session at the time of the offense; and

d.              whether children were actually present or in the immediate vicinity when the offense took place.

However, you are ineligible for a waiver or reduction if the offense took place while on school property or a school bus; or if violence was used or threatened during the commission of the offense; or if a firearm was possessed during the commission of the offense.

Synthetic Drugs: Are they worse than the real thing?

On August 22, 2011, Governor Chris Christie signed SCS-28289, which criminalized the manufacture, distribution, sale, and possession of synthetic drugs commonly labeled as “bath salts” or “plant food” in New Jersey.  The bill, now known as “Pamela’s Law,” which was ultimately codified in N.J.S.A. 2C:35-5.3a (manufacture, distribution, and sale) and 2C:35-10.3a (possession) was named in memory of Pamela Schmidt, a Rutgers student and Warren Township resident, who was believed to have been murdered by an individual under the influence of synthetic drugs. 

 The following chemicals, all synthetic cannabinoids, are now a part of the Controlled Dangerous Substance (“CDS”) Act as Schedule I drugs:

·      3,4          – Methylenedioxypyrovalerone (MDPV)

·      4             – Methylmethcathinone (Mephedrone, 4-MMC)

·      3,4          – Methylenedioxymethcathinone (Methylone, MDMC)

·      4             – Fluoromethcathinone (Flephedrone, 4-FMC)

·      3             – Fluoromethcathinone (3-FMC)

·      4             – Methyxymethcathinone (Methedrone, bk-PMMA, PMMC

These chemicals are commonly found in products falsely labeled as “bath salts” or “plant food” with brand names such as “Energizing Aromatherapy,” “Kamikaze,” “Ivory Wave,” “Purple Wave,” “Red Dove,” “Blue Silk,” “Vanilla Sky,” and many others.  Until recently, they were available for purchase online and in local gas stations, convenience stores, and smoke shops. 

The chemicals are sprayed on a mixture of common herbs, creating the synthetic marijuana, which is also referred to as “K2” or “Spice.”  In some instances, the chemicals have even been marketed as a cocaine substitute.

Consumption of these chemicals can cause extreme, severe physical and psychological symptoms including:  extreme anxiety, paranoia, delusional thinking, visual and auditory hallucinations, violent outbursts, self-mutilation, suicidal thoughts, increased blood pressure and heart rate, severe chest pains, and jerky muscle movements.  There have been well over 500 cases of adverse reactions of the chemicals since 2009, according to the American Association of Poison Control Centers.

In addition to the fact that synthetic marijuana was recently available over the counter and online, another attractive quality for consumers was the inability to detect synthetic marijuana in standard drug tests. However, a recent drug test has been developed for synthetic marijuana, which decreases the utility of the synthetic version as opposed to the real thing.

What are the penalties for possession/distribution of synthetic marijuana in New Jersey?

Under N.J.S.A. 2C:35-5.3a, it is a crime of the second degree to manufacture, distribute, sell, or possess with the intent to manufacture, distribute or sell synthetic drugs where the quantity involved is one ounce or more.  Where the quantity involved is less than one ounce, it becomes a crime of the third degree.

Under N.J.S.A. 2C:35-10.3a, it is a crime of the third degree to possess synthetic drugs, where the quantity involved is one ounce or more.  Where the quantity involved in less than one ounce, it becomes a crime of the fourth degree.

Crimes of the second degree are punishable by up to 10 years in New Jersey State Prison.  Crimes of the third degree are punishable by up to 5 years in New Jersey State Prison.  Crimes of the fourth degree are punishable by up to 18 months in New Jersey State Prison.

Obviously, this means that crimes associated with synthetic drugs are serious, with serious consequences.  In fact, the punishments associated with the manufacture, distribution, sale, and possession of synthetic marijuana are higher than those associated with “real” marijuana.   (In some cases, charges associated with “real” marijuana only rise to the level of a disorderly persons offense, as opposed to a crime.)

What should I do if I am charged with the manufacture, distribution, sale or possession of synthetic drugs in New Jersey?

Contact a lawyer.  Unlike with “real” drugs, law enforcement officers are not yet equipped with field test kits to detect the presence of synthetic drugs.  Therefore, if they fail to follow proper procedure and send the suspected synthetic drugs to the laboratory for testing, the charges can be dismissed.

Our criminal defense team is composed of seven (7) criminal defense lawyers with over 100 years of experience representing clients throughout New Jersey. With former prosecutors on staff, our criminal defense team is ready and able to represent you against charges for possession or distribution of synthetic marijuana. Contact our office anytime for a free initial consultation at (732)450-8300.

Holmdel NJ Drunk Driving (DWI) Charges Dismissed

Our law firm recently represented a client charged with driving while intoxicated (DWI) in Holmdel, New Jersey. My client was leaving a Brad Paisley concert at the PNC Bank Arts Center when she was stopped at a "seatbelt" check by a law enforcement officer. She was arrested for drunk driving and blew a .09% BAC on the Alcotest machine.

In reviewing the discovery evidence and the police report, it became clear that the probable cause for the stop was not sound. DWI checkpoints are constitutional in New Jersey if certain requirements are met. The controlling case in New Jersey is State v. Moskal, 246 N.J. Super 12 (1991) which details how the required procedures must operate if the roadblock is to be valid. In Moskal, the court concluded that a sobriety checkpoint (i.e. a roadblock) is valid provided the location of the checkpoint is appropriate based on historical arrest rates at the location, public safety and awareness would be foster by the checkpoint, there is participation in command and supervision, and notice of the checkpoint is published to provide motorist with notice.

In this case, the police were conducting a DWI checkpoint without the proper protocols being met. They did not publicize the check point or have the proper command and supervision at the location. Instead, they called the stop a "seat belt" check but they were stopping every vehicle, not only those vehicles in which the driver was not wearing a seat belt.

Based on this invalid DWI check point, the entire case against our client was dismissed.