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

We are frequently retained to assist individuals on post conviction relief petitions so as to avoid deportation. The deportation can result from any number of criminal convictions but most often involves some type of drug offense. In this regard, Federal Law allows for deportation whenever an individual is convicted of a drug charge other than one involving possession of less than 30 grams of marijuana.

Monday evening I was consulted by a family in dire need of assistance. The father in the household had immigrated to the US in 1990. In 1995, he was convicted of a drug possession charge that was ultimately dismissed via a conditional discharge in 1996. The gentleman applied for a green card years later in or about 2008. It was his desire to obtain adjustment of his status in the United States to Permanent Resident (Green Card Holder). His application for adjustment was reviewed and he was directed to provide proof that his conviction was based on possession of less than 30 grams of marijuana. Unfortunately, there was no lab report to indicate the weight of the drugs and, based thereon, Homeland Security concluded that he was not only not entitled to adjustment but should be detained for deportation. The gentleman had been in detention for almost two weeks by the time the family got to me. The indication was that he would be deported within 10 days.

I immediately prepared a petition for post conviction relief that sought an Order concluding that, as a matter of law, the conviction was based on less than 30 grams of marijuana. Based on the fact that the police report confirmed that the marijuana comprised one joint and a small tin foil of green vegetation believed to be marijuana, it was my position that our client could not have possessed a prohibited amount of drugs. The Court agreed with my claim that these items simply could not amount to 30 grams of marijuana and filed an Order confirm that this was the case. The Order shall prevent the gentleman from being deported and it is also hoped that it will allow him to obtain the waiver necessary for him to become a permanent resident of the United States.

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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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The New Jersey Supreme Court recently heard the case of State v. Scott on January 10, 2008. The Court held that ample evidence supported the conclusion that the passenger in the vehicle possessed the controlled dangerous substance (CDS) found in the car. The facts of the case are as follows:

In the early morning hours, Paterson police officers pulled over a car being driven without the headlights on and in an erratic manner. It was being driven by Shariffe Parks; defendant Morgan Scott was a front seat passenger. After detecting a strong odor of marijuana and learning that Parks did not have a driver's license, the officers asked him (the passenger) to exit the vehicle. The officers flashed their lights inside the car and saw a large plastic bag on the floor which they believed to contain drugs. Tests later revealed that the bag contained crack cocaine and marijuana. The driver and the passenger were convicted of possession of cocaine and marijuana. On appeal, the Appellate Division agreed with the trial court that there was sufficient evidence to support actual or constructive possession. The court stated that possession cannot be based on mere presence at the place where the contraband is located; there must be other circumstances that permit an inference of defendant's control of the contraband. Criminal possession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time, accompanied by the knowledge of its character. Here, the court noted that the drugs were in plain view on the floor of the car in front of the driver's seat.

The court also found that the odor of marijuana, the testimony that it was customary for drug dealers to work in teams, and the permissible inference that the occupants were trying to figure out where to hide the drugs when they continued to drive for several blocks after the officers activated their overhead lights supported the trial court's decision to deny the defendant's motion for acquittal.

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