New Jersey Criminal Defense Law Blog : New Jersey Criminal Defense Lawyer & Attorney : John Marshall Law Firm : Drug Crimes, Domestic Violence : Monmouth, Middlesex & Union Counties

It is big news - Plaxico Burress shot himself with gun. The incident occurred late night when he was at a crowded bar in New York City.  Beyond the obvious issues, Burress has put himself in an awful legal situation.  While he may have a carry permit in Florida, that is going to do very little for him in NY or New Jersey.  He has been charged with criminal possession of a handgun and is looking at a minimum of three years in jail if convicted of this offense.

I cannot tell you how often I get calls from individuals visiting or driving through New Jersey who get themselves into legal trouble because they have a loaded handgun. The typical scenario is that they were stopped for a relatively routine traffic stop only to be arrested when they freely admit that there is a handgun in the vehicle.  Whether it is a truck driver with a permit for Texas or a single women with a permit to carry from North Carolina, they have no right to possess a loaded handgun once they cross the border into New Jersey.  The most frustrating thing about this consultation is the fact that the caller usually thinks I am full of you no what when I tell them what they are facing. 

I certainly understand that other states allow individuals to possess loaded handguns, but the reality is that very few individuals can satisfy the requirements to buy a handgun let alone "carry" a handgun in NJ or NY.  These rules apply to visitors to the states yet this issue continues to crop up. The real alarming thing about the situation of Plaxico Burress alike those I typically keep out of jail is the fact that he was entirely aware of the fact that he was violating the law in possessing the handgun.  Disregard of the rules seems to be a recurring problem with Mr. Burress but this time it may hit him hard. I am sure some interesting legal arguments shall be raised in the case based on the existence of the Florida permit.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The NJ Supreme Court is considering an appeal involving the admissibility of polygraph results of an uncounseled suspect.  The suspect apparently stipulated as to the admissibility of the results before submitting to the test, however, he was not represented by counsel.  I believe that Miranda may also be implicated in the appeal.

I bring this subject up because I was, coincidentally, consulted by a New Jersey state trooper who was convicted of official misconduct based on evidence which included a polygraph.  He too submitted to a polygraph which purportedly concluded that certain responses were deceptive.  The trooper was previously decorated for undercover work but was now looking at 10-20 years by virtue of the conviction.

I have a serious problem with the admissibility of polygraphs based on stipulations.  My reasons are two-fold.  First and foremost, how can polygraph results ever be admissible in any respect if the New Jersey Rules of Evidence have long declared them inadmissible based on unreliability?  If the tests are not reliable, they should not be introduced at trial as you are essentially providing the jury with unreliable scientific evidence. Second, the tests are never admissible under any circumstance to benefit a suspect.  Does it sound fair then that they can be used to hammer a suspect? 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The NY Daily News reported Wednesday that Lawrence Tynes, the kicker for the New York Giant, is seeking a pardon for his brother.  His brother is currently serving a 27 year Federal prison sentence for drug distribution.  The hope is that President Bush will include the pardon as part of those anticipated prior to his departure from office.

Where an individual is seeking relief from a Federal conviction, an expungement is not permissible.  Federal law does not provide for expungement but does allow for pardon. The process is extremely involved and pardons are only granted on a limited basis.  An attorney experienced in expungement and Federal pardon is an absolute must if an individual is going to have any probability of success in our view.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Kareem McKenzie, one of the bookends of the Giants offense line, got a DWI last week.  As a die hard Giants fan, I am sorry to learn of this problem.  Kareem was allegedly making an illegal u-turn by cutting through a gas station parking lot. The ensuing stop resulted in his being arrested for DWI.  He is alleged to have blown in excess of .08% on the Alcotest.

The stop may involve a probable cause issue.  My thought is that unless there is some prohibition against a turn at the station, an issue may exist as to whether the maneuver was actually illegal.  While N.J.S.A. 39:4-66.2 prohibits use of private property to avoid a traffic control device (e.g. sign or light), there may be wiggle room on the charge, for example, who is to say that Kareem was not using the property for some other purpose (e.g. directions, food, etc.). The point is that, in addition to the standard defenses that may apply here, Kareem may have a probable cause issue.  I wish him the best of luck.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

One of the biggest party nights of the year is this evening.  Not surprisingly, law enforcement will be out in full force to apprehend suspected drunk drivers.  The Monmouth County DWI Task Force is going to conduct a roadblock/checkpoint for this purpose.  The location of the checkpoint is Highway 36 Westbound and shall run from 11 p.m. to 3 a.m. 

Roadblock cases are not uncommon in our New Jersey DWI defense practice.  These activities do yield arrests, particularly, as the checkpoints are conducted at high incident locations.  If an individual finds themselves in the unfortunate position of being arrested at a DWI roadblock, all is not lost.  We find these types of cases to be conducive to defense.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Periodically, the New Jersey Administrative Office of the Courts publishes statistics concerning the number of DWI offenses issued in each municipality. The 2008 statistics (Year Ending October 2008) are out and are contained at the Judiciary Website. The major players continue to be the same and I am not surprised given the volume of cases every NJ DWI Lawyer at our firm has handle this year in these towns. 

In Union County, Linden had the highest DWI total at 57 with Elizabeth at 56 and Union at 50. In Somerset County, Bridgewater was the leader at 108 with Hillsborough and Someset well behind at 56 and 33 DWI cases, respectively.  Ocean County had some rather significant figures with numerous municipalities exceeding 50 summonses. Brick came in at 126, Dover at 91, Lacey at 79, and Stafford at 72.  Wall led Monmouth County at 81, with Holmdel slightly behind at 80. Middletown and Howell had 75 and 68 DWI charges. East Brunswick was a big force for DWI summonses once again.  It came in at 131, with Woodbridge at 125 and Old Bridge at 67. Jersey City issued 81 DWI tickets in Hudson County, with Union City second at 72 cases.

The police departments around the state were obviously busy during the last year.  With such volume, there are always opportunities for mistakes and technicalities.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On November 18, 2008, the Appellate Division issued its decision in State v. Stull.  The case involved the appeal of a Simple Assault conviction under N.J.S.A. 2C:12-1.  The defendant was a Hamilton police officer who had become involved in a physical altercation at a high school sporting event.  Apparently, the defendant's wife and another women were in an argument and, when he separated the two, the son of the women involved, got involved with the defendant.  It culminated in defendant placing the boy in a headlock for a short period.  No blows were exchanged.

The officer ended up losing his job and pension as a result of the conviction and appealed. The basis for the appeal was the fact that Simple Assault had not been established as there was no "bodily injury" to the boy as required under N.J.S.A. 2C:12-1.  The Appellate Division was not persuaded by the argument, concluding that a headlock is enough to cause "bodily injury" insofar as all this term contemplates is some element of pain or physical discomfort.

The lesson to be learned from this decision is told-fold in my mind.  First, it illustrates just how serious the repercussions of a simple assault conviction can be in terms of employment.  It can limit an individuals ability to get a job and even result in discharge. Second, the decision reinforces the fact that there are rarely "do overs" once there is a bad result in a municipal court case.  There typically is only one bite at the apple so an experienced defense attorney is an absolute necessity for anyone viewing a simple assault offense seriously. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Another New Jersey politician was found guilty of criminal misconduct this past week.  This time, however, the conviction involved the highest ranking political figure in recent times.  The former chairmen of the senate budget committee, Senator Wayne Bryant, was found guilty last Tuesday of fraud.  The fraud stemmed from a "slow show" job at the University of Medicine & Dentistry.  The job was essentially found to be a payoff for funding Bryant procured for the University.

Fraud can be a difficult charge to prove in a Court of law.  This may explain why Senator Bryant chose to go to trial in the matter as opposed to accepting a plea bargain for much less time than the 15 years of Federal jail exposure he is now looking at.  The assessment of whether to proceed to trial on a fraud charge can be a difficult one and this time it may have backfired.  A thorough assessment of the positives and negatives of proceeding to trial is always a must.  In the end, however, no one can precisely predict what a jury will do.  I am sure Senator Bryant did not anticipate this outcome.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It is always interesting when you are requested to give legal commentary.  I really got a kick Thursday when I received a call from a writer/researcher from the Fox television show House.  I could not help but appreciate the irony of being enlisted on such a dark show when my New Jersey criminal defense practice has such a dark side as well.  

I was even more excited when the writer told me why he was calling me.  He had done some research on a potential plot that involved someone being arrested in New Jersey for urinating in public, and his research indicated that I was a prominent authority on this subject.  What a pinacle of achievement. Perhaps I can parlay this into a specialty in NJ lewdness charges.  Anything is possible!!!

• Email This
• Print
• Comments
• Trackbacks
• Share Link

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It is obviously common for Junior and Seniors in New Jersey High Schools to drive to school.   Kids are now going to have to reconsider this decision given the recent decision of the Appellate Division in State v.  Best (11/17/08 Law Journal).  In this regard, the Court expanded the ability of schools to search student vehicles, concluding that because of :

the strong state interest in maintaining order, safety and discipline in the school environment, neither probable cause nor a warrant is required.  The privacy interests of students are outweighed by the substantial interest of teachers and administrators in maintaining a drug-free environment on school grounds.  Such vehicle searches need satisfy only the reasonable suspicion standard adopted in T.L.O.

The net result of Best is to create a wider exception to the warrant requirement as it related to motor vehicle searches of student vehicles on school property.  A search will now be valid even where probable cause is lacking so long as the school possessed "reasonable suspicion" that the vehicle contained drugs or contraband.

Notwithstanding the Best decision, Juvenile searches remain fertile for defense.  We frequently see a total disregard for the rights of Juveniles in the field and this may be attributable to the thought that law enforcement is just helping the child.  I know that there is a balance here but I just have a hard time with unfettered searches in any context.  If you open the door wide open, how can you insure that the reduced standard is even adhered to? 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

While I can be a very compassionate defense lawyer, some guys have real huts-pa.  After killing a women in a DWI related accident, Jim Leyritz was order to install an ignition interlock in his vehicle as a condition of his bail.  The NY Post is reporting that Leyritz filed an application with the Court to remove the interlock because valets had problems driving his car and there were false positive readings if Leyritz ate certain foods like chicken marsala. 

Am I missing something here?  I sincerely hope that the report was incomplete or inaccurate because, otherwise, Leyritz needs to get his head examined.  You are about to go on trial for killing a women and you have your attorney file a motion like this -- the inflammatory nature of the application is immeasurable.  You need only review some of the comments to the article and it is immediately apparent just how explosive this is going to become.  Now you are going to have a family that is only more incensed.  Media and the like who are going to have absolutely no compassion for Leyritz.  Lastly, what message is it sending to the court that may oversee the trial or sentencing of Leyritz?  This move would not have been one I made defending someone in a similar situation in New Jersey.  Perhaps I am just missing a piece of the pie.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The suspension period for a First Offense under New Jersey’s DWI statute is tiered based on blood alcohol content. While a first offense carries 7-12 months suspension where the accused has a BAC in excess of .10, the license suspension for a first offender is limited to 3 months if the readings are below .10 but in excess of .08.  The experience of our offices has been, however, that the readings blown by an accused does not necessarily translate into how he will be penalized at the conclusion of a case handled by our dwi lawyers.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Yes, it is true.  The New Jersey Department of Corrections has brought in cellular telephone sniffing dogs to patrol the state's prisons.  Evidently, prisoners have been smuggling cell phones into jails and using them to conduct, in some cases, their illegal business.

Defense lawyers are accustom to hearing "we are going to bring the dogs..." approach taken by police officers. Indeed, it seems like this threat is a component in half of the automobile search cases our law firm handles.  While a stopped motorist need not give these threats any coercive effect, the situation is almost a moot point for a prisoner.  There will not be a threat but simply the appearance of the dog.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I always profess that domestic violence and retraining order issues effect all types of individuals.  We saw this revelation, once again, hold to be true when a prominent Somerville lawyer was reported to have "a dozen charges in three towns" , including alleged violations of a restraining order filed by his wife.  Apparently, this lawyer's wife filed for divorce and things have unraveled quite dramatically with him being jailed for violations of a New Jersey restraining order.  The attorney already had pending charges stemming from a leaving the scene of an accident case and a separate DWI case in another municipality. 

DWI and domestic violence can sometimes have a common thread - excessive alcohol.  This appears to be the case for the lawyer in this case and he certainly is not alone.  New Jersey's DWI laws and domestic violence statutes are some of the stiffest in the Nation but access to a competent defense lawyer probably should not be an issue in this case.  Hopefully, this guy can get it together like so many individuals we represent, and negotiate this mind field without too much impact on his future.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

No one can doubt that there is considerable disgust on the part of the public concerning the poor business decisions of top executives.  This is not surprising given that the public is now being asked to absorb some of the costs of these mistakes.  This has translated into increased prosecution of executives in recent times and New York White Collar Lawyer Stanley Arkin, Esq., recently reported in the NY Law Journal that this is anticipated to rise.

Classically, an executive only had shareholders to answer to and, if displeased, he would be terminated.  The recourse also now becoming more and more viable is criminal prosecution.  However, the line is not a fine one in my mind.  To rise to the level of criminal culpability, there must be some egregious conduct which is of a criminal nature, not just careless or reckless business judgment.   

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The New Jersey Supreme Court just released its decision in State v. Spell.  The case involved application of the Refusal Instruction to be provided to individuals suspected of dwi in NJ.  The most important part of the decision was the Court's holding that:

"The additional paragraph of the standard statement to which the Appellate Division referred is, according to itsinstructions, to be read aloud by police officers only if, after all other required warnings have been provided, a person detained for driving while intoxicated either conditionally consents or ambiguously declines to provide a breath sample. "

The crux of the decision is that the second paragraph of the form need not be read if the person accused of dwi unequivically REFUSES.  The decision is problematic in my view inasmuch as video and/or audio recordings of the instruction are typically unavailable.  We will have to see how things play out in actual application.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

New Jersey's Assembly recently approved a bill which would allow high schools to access non Juvenile student criminal records.  The impetus for the bill was an incident wherein a 19 year old student convicted of rape had transferred to a NJ high school that was totally unaware of his prior criminal history.  Under the bill, high school officials would be made aware of certain criminal convictions of students who are 18 or older, but Juvenile Crime records would remain protected.  The bill also requires transferring school districts to report certain criminal convictions when one of its students transfers to another district.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

USA Today reported Friday that OJ lost his bid for a new trial. The primary basis for the motion was erroneous rulings limiting cross-examination of witnesses and errors during jury instruction. OJ is now going to have to wait until his appeal is heard before he can hope to be released from jail.  

Applications for post-conviction relief, such as motions for a new trial, are actually commonplace in our New Jersey criminal defense law firm.  However, success on these types of petitions require good facts, law, and/or creative argument.  The Judge in OJ's case apparently found nothing of a reversible nature and now it is on to appeal.  The outcome is not surprising as it is often very difficult to get a trial judge to grant a new trial based on his or her own error, after trying a case for weeks.  This is why it is so important to get things right if at all possible at trial as "do overs" are the limited exception.  I am sure OJ's Las Vegas defense attorney has a better prospective on what happened.  In any case, OJ's involvement with the judiciary shall continue.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The AP Wire reported on Thursday that Ryan Leaf's efforts to build a coaching career have taken a turn for the worse.  He is alleged to have solicited pain medication from one of his players.  It is unclear exactly what medication was requested but it is apparent that it was a prescription drug.  Chief Bobby Griffin of the Canyon Police reports that Leaf is being accused of obtaining a controlled dangerous substance by fraudulent means.  Leaf subsequently resigned on Friday.

We happen to deal with illegal prescription cases exactly like Ryan's everyday in our New Jersey criminal defense firm.  While it cost him his job, the honest truth is that this stuff effects all types of people everyday without such consequences.  They go in for oral surgery or some other treatment, are prescribed opiate based medication, and they are off and running.   We even have occasion to represent medical practitioners and pharmaceutical sales people on this type of case.  It is classic addiction with no involvement of violence or a victim in most cases  If Texas takes a similar approach, the case will probably resolve with limited impact on Mr. Leaf provided he hires the right attorney. While it may be a crime to acquire or carry pain medication without a prescription, a good defense lawyer can usually negotiate the situation.  Nonetheless, a Texas criminal defense lawyer like Jamie Spencer probably would have a better feel for what may happen in a Texas Court.

• Email This
• Print
• Comments
• Trackbacks
• Share Link