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

One of the hottest issues confronting the NJ criminal justice community involves the impact that convictions and arrests have on those who are illegal aliens, green card holders, or who are here under a student visa. There are a number of problems which arise for these individuals including, but not limited to, whether the individual may be bailed out in the normal course or whether an ICE detainer applies. The situation can obviously get very complicated and the NJ Supreme Court is now considering exactly how the situation should be handled as shortcomings in the current system cut both ways.

Typically, our NJ Bail Attorneys are retained to assist in getting someone bailed out because they want to remain in the US and New Jersey. However, there are also those instances where an individual is facing severe charges in NJ such that he would rather be deported than face the prospect of sitting in a New Jersey jail for years. While County and State law enforcement have worked hard to prevent suspects from slipping through the cracks and escaping prosecution by virtue of deportation, the system has its flaws. There are also those instances (this is the majority of cases) where a non-citizen sits in jail on a ICE detainer for days or even months on a very minor charge.

The Supreme Court of NJ just heard arguments in a case involving these complex deportation issues. We can only hope that uniform policies shall be set by the Court such that there is more predictability in the system. 

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An Asbury Park NJ couple was stopped for a routine traffic violation but things escalated from there.  Police claim that an ensuing search of the driver, passenger and vehicle, yielded discovery of 40 bricks of heroine.  A subsequent search of the apartment of the suspects resulted in seizure of another 60 bricks of heroine, two kilos of cocaine, and $425,000 in cash.  Bail has been set at approximately $950,000 and $700,000 for the defendants.

In accordance with N.J.S.A. 2C:35-5, possession of in excess of five (5) ounces of cocaine is a First Degree Crime. The same holds true where someone possesses, with intent to distribute, more than this amount of heroine. These two suspects are obviously well over the threshold for a First Degree Offense.  The jail exposure would be, at a minimum, ten (10) years and the Brimage guidelines automatically apply given the First Degree charges.  This means that parole ineligibility and extended term provisions shall also apply in these cocaine and heroine cases.

As I read the newspaper articles, the circumstances of the searches appear, however, somewhat cryptic. This usually means that the underlying facts are tenuous.  Experienced NJ Cocaine Distribution Attorneys are going to be a necessity if these defendants are going to have any chance of mitigating these charges
 

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We have previously written regarding the involvement of Craigslist in the prostitution industry.  The heat had been on the internet media giant for allowing ads to be posted for casual encounters and other sexually oriented liasons.  The position was traditionally that internet advertisers were immune from any criminal culpability or civil liability stemming from promoting prostitution or lewd conduct. The pressure just got turned up even higher for the internet company as a result of the Craigslist killer case.

There is no doubt that the ads reflected on Craigslist are intended by the poster to attract prostitution and lewd conduct. There really is no room for debate on this issue in my mind. Notwithstanding, what obligation does a publisher have for the voluntary acts of adults?  Indeed, ads like those on Craigslist have been commonplace in print newspapers like the Asbury Park Press and Star Ledger for decades. Where do we draw the line?

The answer to this issue can be found in the NJ Prostitution Law itself. For example, N.J.S.A. 2C:34-1 criminalizes conduct that facilitates the payment of compensate in exchange for the performance of a sexual act. The law sets forth varieties of acts which promote prostitution including maintaining a business of prostitution, procuring a prostitute for another, inducing someone to become a prostitute, soliciting someone to use a prostitute, transporting a prostitute, or providing property to conduct a prostitution enterprise. A review of these provisions fails to identify a violation under New Jersey law by Craigslist.  Accordingly, the only real way to hold an entity like this criminallly culpable would be some loose theory that, by virute of allowing advertisements to be posted, they are promoting prostitution. I hope one can appreciate that we may be talking about morality here as opposed to legality.

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As a NJ criminal defense attorney, I occasionally find myself in a no win situation.  A recent cocaine distribution case arising out of Ocean County and Monmouth County serves as a good example.

We were retained to represent an individual allegedly in possession of approximately 1,000 grams of cocaine. The arrest occurred in Monmouth County but was in conjunction with an Ocean County task force investigation.  The incident took place almost a year ago now and a bail motion failed to succeed in reducing bail below $1.0 million.

For approximately one year now, I have been attempting to get the Ocean County Prosecutor's Office to move on this distribution of cocaine case. I am in a difficult position, however, as the prosecutor on the case is threatening to indict my client on a kingpin charge.  If I press the prosecutor too much, I can count on a kingpin indictment yet my client and his family are all over me to do something.  Do I file a motion to suppress and virtually assure that my client is exposed to the potential for a life sentence under the kingpin statute or do I continue to calm the client and his family.  

Heavy cases involving distribution of cocaine in New Jersey can be both complex and exciting to handle. There are often interesting legal issues which work their way into these cases, however, the flip side is that prosecutors typically take a hard line with significant weight cocaine charges. This is precisely the dynamic facing our NJ cocaine distribution defense attorneys in this case.

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Over the years of defending individuals on criminal charges, it has become readily apparent that NJ Marijuana Possession and NJ Marijuana Distribution are the most frequently encountered drug charges in the state.  Notwithstanding, no where is there a comprehensive source of information concerning marijuana offenses. We therefore developed a website dedicated solely to marijuana issues such as possession, distribution, school zone charges, and possession of marijuana in a motor vehicle.  The site is titled NJ Marijuana Defense Lawyers and we hope readers find the information beneficial. While the site covers considerable subject matter, many questions may remain unanswered.  The NJ Marijuana Defense Attorneys at our firm are available to answer questions and supplement the content found on the marijuana website.

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One of the more powerful political figures in NJ, Senator Raymond Lesniak, was the victim of a burglary two days ago.  The burglary escalated into a Robbery when the Senator encountered the intruders and was threatened unless he handed over all cash contained in his Elizabeth New Jersey home.  Lesniak resides in an upscale section of Elizabeth in the area of Kean University. 

The incident offers a practical illustration of both burglary and robbery.  N.J.S.A. 2C:18-2 defines a burglary in New Jersey as entry into a structure without a license or privilege. This offense is normally a third degree crime but becomes a second degree offense where the perpetrator inflicts or threatens to commit bodily harm to someone during the commission of the burglary.

Pursuant to N.J.S.A. 2C:15-1, Robbery is the use or threat to use force during the course of a theft. Robbery is a second degree crime but is enhanced to a first degree offense where a suspect attempts to kill, inflicts or attempts to inflict serious bodily injury, is armed, or where he threatens the immediate use of a deadly weapon. 

In the Lesniak theft case, one of the defendants threatened to "shoot him".  This fact would probably take an incident which would otherwise give rise to a Second Degree Burglary charge and escalate it to a First Degree Robbery case. These guys are in a heap of trouble if they are apprehended and even our Union County Criminal Defense Attorneys would have a hard time mitigate the situation. 

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I have previously authored articles regarding how a disorderly persons offense of shoplifting can be transformed into a Second Degree Robbery.  I just read an article in the Asbury Park Press where a shoplifting charge in Monmouth County was transformed into a Robbery under the circumstances which I previously contemplated.

The shoplifter was attempting to conceal steaks and a sponge, but was apprehended by store employees. The suspect did not, however, submit and attempted to escape.  A store employee was injured during the course of attempting to restrain and/or apprehend the suspect. The suspect has been charged with not only shoplifting but robbery.  His case is scheduled to be heard in Monmouth County Superior Court.

To reiterate, the use of physical force to effectuate a theft or to escape, is robbery.  Robbery is a second degree offense under these circumstances and is punishable by up to 10 years in jail. A parole ineligibility requirement also applies wherein an individual must serve 85% of any sentence before they are eligible for parole. While a robbery is a very serious offense, our NJ Shoplifting Defense Attorneys are often successful in mitigating the jail exposure in cases such as these.

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On Wednesday, Governor Corzine put more restrictive driving laws into effect for young drivers (i.e. those under 21 years old).  The new law includes a provision requiring placement of a car decal on vehicles operated by permit holders or provisional license holders. The rules have also been refined to limit the times that teens on a provisional license may operate a car. The law now prohibits operation after 11:00 p.m. The final piece of the legislation prohibits provisional drivers under 21 from operating a vehicle with more than one passenger and this limitation applies irrespective of whether the passengers are related or reside together.

My observations regarding this NJ amendment are multiple. While I am certainly sympathetic as to the horrors of teen motor vehicle deaths, it seems to me that the statute is somewhat unrealistic.  To limit children under 21 to one passenger has the real potential for being excessive and having negative effects. This law will also undoubtedly provide additional opportunities for stops and motor vehicle searches as it has been the experience of our NJ Juvenile Crime Defense Attorneys that, at least insofar as it relates to young people, the law against unreasonable search and seizure becomes very grey in the field.
 

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When individuals imagine what a counterfeiter might look like, it does not include a vision of a Colts Neck High School student. I guess you get where I am going with this - high school kids in Monmouth County were counterfeiting fake 10s and 20s.  The money was sold to other juveniles in return for lesser domination of real money.  The United States Secret Services is involved in the investigation and charges are forthcoming against the high school sophomore and junior involved in this fraud.

Once the charges are filed, the first official court proceeding is a mandatory assignment of counsel hearing.  This proceeding is designed to establish who shall be representing the juvenile as every child must be represented by a NJ Juvenile Crime Defense Attorney.  The next proceeding is an arraignment where the juvenile is read the charges against him or her, and advised as to his or her rights.  A plea hearing and/or status conference (or several) usually follows thereafter where the prosecutor and defense counsel elaborate as to their positions, and a determination is made as to what, if any, investigation or other work is needed to resolve the case.  Ultimately, a decision must be reached as to whether or not a trial is necessary to resolve the charges.  If a trial is necessary, it is important to keep in mind that there is no right to a jury trial.  Since Juvenile cases are decided in family court as opposed to criminal court, the Judge presiding over the case decides all issues.  The same burden of proof, that is, proof beyond reasonable doubt, nevertheless applies in the case.

We will have to see how the counterfeit case in question proceeds through this process.  I anticipate a rather uneventful progression of the case.  While the case involves a rather interesting little scenario, there is nothing to warrant significant scrutiny given the lack of violence and other considerations. 

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Years ago, I can recall almost daily newspaper reports of eluding through Union County. The stories usually involved someone fleeing in a stolen vehicle and attempting to reach Newark.  The Star Ledger reported this morning that the same scenario of eluding in Union County occurred on thursday.  The defendant took police on a chase through residential streets at high speed. While the incident ended in Newark when the eluder crashed into a curb, this was not until after the defendant committed several aggravated assaults by ramming police cars in an effort to escape. The charges against the suspect include eluding and aggravated assault.

New Jersey has a Second Degree eluding law which exposes an individual to up to ten (10) years in jail.  The law is set forth at N.J.S.A. 2C:29-2 and provides that a person is guilty of eluding if "they knowingly attempt to flee or elude a law enforcement officer after having received a signal from the officer to bring the vehicle to a stop."  The charge is enhanced to a Second Degree crime from Third Degree when, during the course of fleeing, a suspect "creates a risk of death or serious injury to another person."

The focus of our Eluding Charge Defense Attorneys in these types of cases is always to attempt to have the offense downgraded to a Third Degree.  The reasons for this are mulitiple including avoidance of the presumption of incarceration carried by a Second Degree, the ineligibility for New Jersey Pretrial Intervention as a Second Degree, and the obvious jail exposure otherwise involved. The suspect in this case is going to have an exceedingly difficult time accomplishing this goal as his conduct was extreme.

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The Star Ledger published a brief article Thursday regarding a Simple Assault committed by a Roselle High School student.  The incident offers an interesting example as to how a NJ Simple Assault Charge can be transformed into a much more serious offense of Aggravated Assault when the victim involves a member of a protected class of individuals.  A protected class not only includes police officers and other law enforcement, but other members of the public who the law deems necessary to protect for public policy reasons.  Let me explain this dynamic.

A simple assault is basically any form of unwanted or offensive "touching" of another which causes some element of bodily injury.  This can include momentary pain or discomfort, and need not be lasting or leave residual injury.  A simple assault is transformed under N.J.S.A. 2C:12-1(b) into an aggravated assault when one of the following is the victim: (1) a police officer; (2) fireman or first aid work acting in the course of their duties; (3) teachers, school officials and bus drivers; (4) DYFS workers; and (5) a judge. The escalation of a simple assault to an aggravated assault offense is significant as it triggers an indictable felony charge of the Fourth Degree or even Third Degree.  An individual is exposed to not only a lasting criminal record when this occurs but also up to 18 months in jail for a Fourth Degree conviction, and up to 5 years in jail for a Third Degree.

Our NJ Aggravated Assault Defense Attorneys do their very best to make sure that simple assaults like the one in Roselle never make it to a Superior Court like Union County Superior Court.  If there is no real injury and the defendant does not have a history of this type of behavior, we are typically successful in persuading the prosecutor to remand the case as a NJ Simple Assault charge. We will have to see if the Union County Prosecutor picks up this case as an Aggravated Assault.

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The landscape of criminal defense has definitely changed in Middlesex County over the last few years by virtue of more meaningful pre-indictment proceedings. The approach traditionally taken in criminal cases was to fight as long and hard as possible, and this would translate into the best result to the charges. The Middlesex County Criminal Court, as well as the Middlesex County Prosecutors Office, now takes a much different approach to resolution of criminal charges such that dragging a case out can now have significant negative implications.

The majority of indictable charges in Middlesex County including drug distribution, theft, aggravated assault, and robbery, are listed for pre-indictment hearing. At this hearing, you are supposed to receive the prosecutor's best plea offer.  If you choose to reject the offer, the prosecutor is obliged to indict the accused and the next offer is to be more severe than the pre-indictment offer.  The result of this approach is that if a defendant and/or attorney miscalculates the pre-indictment offer, he is not going to have the opportunity to back track and accept the pre-indictment offer.

In order to properly assess whether a pre-indictment offer should be accepted requires experience and knowledge.  In this regard, our Middlesex County Criminal Defense Attorneys have over forty (40) years of defense experience in NJ. This knowledge is invaluable in insuring that our clients are properly advised at Middlesex County Pre-Indictment hearings.

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An aggravated assault may arise out of operation of a motor vehicle.  This pedigree of aggravated assault is commonly referred to as Assault by Auto.  Where the resulting injury is "serious", the Assault by Auto is a Second Degree.  Serious bodily injury is defined as injury that involves a substantial risk of death, permanent disfigurement, or loss of function of a bodily member or organ. Where an injury falls short and is only "significant", it gives rise to a Third Degree Aggravated Assault by Auto.

There are basically three (3) ways in which a person can be held accountable for assault by auto. First, where a motorist acts with the purpose or intent to collide with a victim, that is an assault by auto. The degree of a charge for an intentional collision hinges on the nature of the injury suffered by the victim (e.g. serious, significant, minor).  Second, when an individual acts recklessly (e.g. driving while intoxicated, reckless driving, extreme speeding, etc.) and this results in injury to another, that is also an assault by auto. Whether this conduct is a Second Degree, Third Degree or even Fourth Degree Aggravated Assault, again depends on the extent of the resulting injury. Third, an assault by auto arises when an individual causes bodily injury while fleeing or elude police contrary to N.J.S.A. 2C:29-2(b), or while joyriding in violation of N.J.S.A. 2C:20-10(c). This variety of assault by auto is also a Second Degree crime.

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I never get over individuals who snap and decide to use their car as a weapon.  This is precisely what was reported by the Home News recently about a Plainfield man.  The assailant swerved into his girlfriend's vehicle on Route 22, sending the car into a spin.  A police officer happened to be in the area and witnessed the incident.  The rogue driver has been charged with Aggravated Assault and Reckless Driving.

N.J.S.A. 2C:12-1(b), the Aggravated Assault Statute, defines this offense to include attempting to cause serious bodily injury...under circumstances manifesting extreme indifference to the value of human life. A second degree aggravated assault carries up to ten years in jail. There is also a charge of Reckless Driving under N.J.S.A. 39:4-96.  Although this charge is clearly secondary, a conviction can nevertheless give rise to license suspension and up to six months in jail.

The accused in this case is going to have a difficult time defending this matter by virtue of numerous factors including his poor luck; the arresting officer apparently witnessed the entire encounter.  The focus will undoubtedly have to be on the nature of the intended injuries, his state of mind, and other potential avenues to establish that this is a third degree aggravated assault as opposed to a second degree.  Provided the accused has no prior criminal record, a third degree conviction and/or plea should allow him to avoid jail time.

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We represent individuals on serious drug distribution cases all the time.  The penalties facing individuals charged with First Degree and Second Degree offenses of this nature are severe.  It is therefore very satisfying when you can achieve a good outcome for an individual who is deserving.  That is precisely what happened last week for a young man in Middlesex County Superior Court.

The gentlemen was a college student from New Brunswick, NJ, with no prior criminal record. He had occasion to be solicited by an undercover police officer for drugs. The client did not possess drugs but knew who to put the officer in contact with to get them. The lead resulted in a drug buy involving Second Degree weight of cocaine.  The client facilitated the transaction but, unbeknown to him, a bust was about to be made, with him and his acquaintance as the defendants. He was charged with Second Degree Distribution and the case was further complicated by the fact that the other person involved was in possession of a firearm. The result of this monumental lapse in judgment was that a college student with no prior dealings with the law whatsoever, was now looking at 5-10 years in prison.

Our client came from a highly educated family filled with success stories, including a doctor and NY District Attorney.  Considerable effort was exhausted to assist this young man and we were pleased to not only avoid any jail time but to have him admitted into Pretrial Intervention.  If he does what he is supposed to over the next year, he should end up with no criminal record. It is refreshing when you reach this type of result.

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We like to keep our readers advised of any roadblocks scheduled in NJ.  This weekend a checkpoint is scheduled on Southbound Route 35, in Shrewsbury NJ, just down the street from our Monmouth County Office. Drivers will be pulled into Shrewsbury Plaza in order to assess sobriety.

The public is often confused as to why notice of these roadblocks is provided.  Our constitution protects us from unreasonable search and seizure and also affords us due process under the law. These constitutional protections impose a fundamental requirement that the police possess probable cause or reasonable suspicion before they stop a motor vehicle.  The Courts have carved out an exception from this requirement for roadblocks but have imposed several conditions in order to maintain fundamental fairness.  First, the selection of the checkpoint location must be based on statistical data demonstrating that it is a prime location for incidents of drunk driving. Second, the police must afford notice to the public of the scheduled roadblock.

Anyone issued a DWI summons as a result of a roadblock is encouraged to retain the services of a NJ DWI Defense Attorney.  To this end, our lawyers are available 24/7 to provide assistance.

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Alcoholism and DWI are obviously terms which individuals might correlate but chocoholism probably is not. Chocoholism is the addiction to chocolate, at least in theory.  The question which one might ask is what does an addiction to chocolate have to do with DWI?  I thought nothing until I read the recent report in an Australian newspaper wherein it was claimed that a DWI resulted from chocolate.  I have heard many defenses espoused by NJ DWI Defense Attorneys but never chocolate.

The Aussie DWI defendant apparently had a blood alcohol concentration of almost .20. She claimed that the intoxication was caused by excessive consumption of liqueur contained chocolates. The argument failed to work any sweet magic.

All kidding aside, our NJ DWI Defense Lawyers hear stories all the time about how foreign substances effect breath test readings.  Most recently, we have been confronted with multiple cases involving breath test readings distorted by invisalign braces. This is obviously a far cry from chocolate intoxication but the point is that individuals can become intoxicated or, more frequently, have elevated BAC readings because of something they ingested, were exposed to, or that was in their mouth.  I am happy to report that we have been able to get some sweet satisfaction in these cases.

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Local and national news agencies seem to report on incidents of domestic violence everyday.  These incidents often involve actual or threatened violence. Today, the Asbury Park Press reported on another domestic violence occurance, this time in Ocean County, NJ.  The incident involved a Manahawkin man who shot his girlfriend following a domestic dispute. The charges against the defendant include attempted murder.

The Prevention of Domestic Violence Act of 1991 is the embodiment of New Jersey's policy on this subject. In this regard, the state recognizes that domestic violence effects all walks of life and is a serious issue. The NJ domestic violence law seeks to combat assault, harassment, threats, and other forms of domestic violence by imposing strict enforcement and penalties. We see the effects of this law almost daily in our criminal defense practice. The honest truth is that while this law has teeth, there are those who attempt to utilize the law for their own benefit. It is abundently important for the Courts to strike a fair balance between the need to prevent domestic abuse and safeguards against utilization of the law to obtain a tactical advantage.  Our attorneys do their best to clarify exactly which strategy is afoot whenever we are defending individuals accused of domestic violence.  

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The Star Ledger reported today that an Edison detective was arrested for shoplifting. The allegation was that he stole $42 in merchandise from a supermarket.  His stated position is that the charge was fabricated and that the items were properly paid for.  The case is still pending.

The report really does not come as a surprise given the experience of our NJ shoplifting defense practice. In fact, the profile of our typical shoplifting client is a middle to upper class woman in her forties.  What we are, for example, referring to are investment bankers, corporate executives and spouses of prominent physicians with plenty of money. Shoplifting is not about survival for most of our clients but rather something else.  Perhaps, the police officer in the report had similar motivation, assuming the allegations have merit.

Thankfully, it is a rare occurence that one of our clients is actually convicted of shoplifting.  We are almost always able to have shoplifting charges downgraded and/or dismissed. One would expect a similar outcome for the police officer in the report.

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We like to report on particularly gratifying results reached on behalf of our DWI clients.  Last Thursday was especially pleasing as I was able to achieve some great results in two Monmouth County DWI cases.

In the first case, a man was charged with his fourth (4) DWI, along with a refusal in Red Bank, NJ.  The gentlemen was not entitled to a stepdown (i.e. drop off of any of the convictions) and was therefore facing six months in jail if found guilty of DWI.  Our Monmouth County DWI defense attorneys worked significantly hard to attack the DWI charge based on lack of proper administration of Field Sobriety Tests. The arresting officer had inadequate training in Field Sobriety Testing and his superior, who performed the HGN test, lacked an up-to-date certification to support his administration of the test.  Our efforts proved successful and we were able to avoid a DWI conviction in this Monmouth County Case.  Our client avoided jail time altogether.

In the second case, a Rumson stockbroker was charged with his First DWI in Fair Haven.  His breath test readings exceeded .10 thereby exposing him to a license suspension of seven (7) months or more.  We explored numerous issues concerning admissibility of the breath test results, including the twenty minute issue.  In this regard, CAD (computer assisted dispatch) reports were demanded and obtained which pinpointed the time that the arresting officer brought our ciient into the station. When this time was compared to the time of the breath test, we were able to raise a viable twenty minute issue.  While the municipal prosecutor, Hank Gilbertson, also fought hard on this issue, we were ultimately able to convince the Judge that this Monmouth County DWI defendant should not be bound by the breathalyzer readings. The Judge agreed with our position and ultimately suppressed the readings thereby allowing us to achieve a first tier result and a limited suspension of three months for our client.  The client was extremely pleased.

We are fortunate enough to be exposed to many DWI fact patterns and so too, opportunities to refine our identification of bona fide issues.  The identification of these issues is imperative to our defense of those charged with DWI in NJ as prosecutors and Courts are strictly prohibited from downgrading and/or dismissing DWI tickets absence proper legal basis.  

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