New Jersey Criminal and DWI Lawyer & Attorney : John Marshall Law Firm : Drunk Driving, DUI : Monmouth County, Middlsex County, Union County, New Jersey

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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Former NFL star and Atlanta Falcons quarterback Michael Vick was sentenced today in Federal Court by the Honorable Henry E. Hudson on dogfighting charges. In an earlier post, I discussed the re-emergence of judicial discretion in sentencing in Federal court following the landmark Booker decision in 2004. This judicial discretion is evident in the 23 month sentence Michael Vick received today. The prosecutors in this case, after negotiating a plea agreement with Michael Vick, recommended 12-18 months incarceration. However, judge Henry Hudson, who has a reputation for being hard on crime, sentenced Vick today to 23 months in federal prison. Vick was facing up to 5 years in prison for his connection with a dogfighting ring. After Vick apologized to the court and his family, Hudson told him: "You need to apologize to the millions of young people who looked up to you." "Yes, sir," Vick answered.

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The recent tragedy regarding the murder of Washington Redskins safety Sean Taylor concerns a legal principle known as the "Felony Murder Doctrine". In this case, there were four individuals involved in the burglary of Sean Taylor's Florida home. These are allegedly some of the same individuals who burglarized his house eight days earlier. During the commission of the burglary (the predicate felony), one of the defendants shot Sean Taylor in the leg. Sean Taylor died as a result of this gunshot wound. According to the felony murder rule, all the participants in the underlying felony are responsible for the murder of Sean Taylor. This is a first degree murder charge even though the murder was not premeditated. Some of the predicate felonies to the felony murder doctrine are burglary, arson, rape, robbery, and kidnapping. If a murder occurs during the commission of any of these underlying crimes, all of the perpretrators involved (even if they did not do the shooting themselves) are charged with first degree murder. Therefore, in the Sean Taylor case, all four burglars are responsible for the death of Sean Taylor and will be charged with first degree murder. They are most likely facing life in prison rather than the death penalty because the shooter was a 17 year old juvenile.

On another note, how does ESPN get away with making up words as they go along? While watching Sportscenter the other night ESPN flashed a story on the bottom line saying that "the four individuals involved in the death of Sean Taylor have been charged with unpremeditated murder". Unpremeditated? That is not a word. Something is either premeditated or it is not....unpremeditated is a double negative.

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A disorderly persons offense (DP) in New Jersey is a petty offense that is handled in municipal court. These types of offenses include simple assault and harassment. In the recent case of Housing and Redev. Auth. of Twp. of Franklin v. Miller, A-2463-06, the court held that a tenant may be evicted from federally subsidized public housing upon conviction for a disorderly persons offense. The court held that a statute allowing eviction for "criminal activity" (known as the one-strike law) should be read broadly, consistent with its purpose of making public housing safe. Therefore, Judge Donald Coburn's panel found no intention by Congress to exclude petty offenses from the "criminal activity" that justifies eviction. A Somerset County Superior Court judge found that the housing authority was within its rights to terminate the lease under 42 U.S.C.A. 1437d(1)(6), which requires that leases of federally subsidized housing provide that "any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug related criminal activity on or off such premises, engaged in by a public household tenant, any member of the person's household, or any guest or other person under the tenant's control, shall be good cause for termination of the tenancy." On appeal, the judges agreed that a DP offense was included in criminal activity sufficient to warrant eviction.

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The success of self-defense as a defense to murder or assault depends on the extent of the force used and the extent of the threat to the individual’s safety. Non-deadly force can be used if the person reasonably believes that non-deadly force is about to be used on him. Deadly force can be used if the person reasonably believes that deadly force is about to be used on him. Deadly force is any force that produces death. In a minority of jurisdictions, before using deadly force you must retreat, provided that you can do so safely. In these jurisdictions, even where you can retreat safely, you don’t have to retreat from your home (this is known as the “Castle Rule”). Another important rule in this arena is the “Original Aggressor Doctrine” which requires that, if you are the original aggressor, you lose the ability to claim self-defense unless you withdraw from the altercation and communicate that withdrawal to the other party. A final important rule in this area is that you cannot use deadly force in defense of a dwelling or in defense of property.

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The insanity defense is a favorite on television and in the movies in attempting to relieve criminal defendants of punishment for their acts. The test in the majority of States is known as the M’Naghten test: the standard is whether at the time of the conduct in question the defendant lacked the ability to know the wrongfulness of his actions or understand the nature and consequences of his acts; the product of their incapacity must be the product of mental disease or defect. This is a purely cognitive test. Another test used by some jurisdictions is the “irresistible impulse” rule: the standard is due to mental disease or defect the defendant lacked the capacity for self control or free choice. This is a volitional test. Finally, the Model Penal Code test, an authority in the field of criminal law, uses broader language and is both cognitive and volitional. This test requires that the defendant lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. If the defense attorney is successful in proving one of these three tests (depending on which test the jurisdiction uses) then the defendant may be successful in asserting an insanity defense.

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Usually clients are interested in the difference between murder and manslaughter because this could significantly affect their sentences. For a homicide to occur, the victim must be human (horses, dolphins, etc. do not constitute a homicide). Murder/Common law murder are malice crimes: This means that the defendant recklessly disregarding a substantial risk that a particular harmful result would occur. Murder is only a specific intent crime if there is a statute that provides for that requisite mental state, which is the case in New Jersey.

There are four types of common law murder:

1. Intent to kill;
   
2. Intent to do serious bodily harm;
   
3. Depraved heart murder: This requires a reckless indifference to the value of human life (also known as abandoned and malignant heart murder);
   
4. Felony murder: The murder doesn’t require an intent to kill, only that the death occurred during the commission of a felony (the predicate felonies are burglary, arson, rape, robbery, kidnapping, and sodomy).

            Generally, the difference between murder and manslaughter is premeditation. There are two types of manslaughter, voluntary and involuntary manslaughter.

Voluntary manslaughter is “heat of passion” manslaughter, an intentional killing committed in the heat of passion. This requires:

1. adequate provocation and
   
2. an insufficient opportunity to cool off.
   

If you have both elements then you are guilty of manslaughter rather than murder. If the provocation was not sufficient or you had a sufficient opportunity to cool off then you will be charged with murder. The most common examples of voluntary manslaughter cases are fist fights where an individual dies or where a spouse catches their significant other in an act of adultery and kills one or both of the parties involved.

The other type of manslaughter is involuntary manslaughter, which is killing with criminal negligence. This requires a gross deviation from the standard of care sufficient to establish involuntary manslaughter. These are the differences between murder and manslaughter.

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With O.J. Simpson being charged with conspiracy recently I have received a lot of inquiries regarding the necessary elements required for the State to prove a conspiracy. Conspiracy requires basically four elements: 1) There must be an agreement: This is the essence of a conspiracy. The agreement need not be express; it can be implied based on a “concert of action”. An example is a group beating up an individual even though they never spoke regarding the agreement. 2) The individuals involved in the conspiracy need to be pursuing an unlawful objective. Basically, the purpose of the conspiracy must be an illegal one. 3) There must be an overt act: The majority of States require this even though it is not constitutionally based. Any act will do, even if the act is preparatory in nature. This act basically must show intent to do what they did. 4) Specific Intent: Conspiracy is a specific intent crime—the highest level of intent, the mens rea aspect of the crime, must be present. They must intend to agree and intend to commit the underlying crime. If these four elements are met then the State can prove a conspiracy.

Conspirators can withdraw from a conspiracy and this is governed by the Pinkerton doctrine. Conspirators are liable for all crimes they commit and all crimes committed by their co-conspirators provided: 1) the crimes were in the scope of the conspiracy; 2) the crimes were in furtherance of the conspiracy; and 3) the crimes were foreseeable from the creation of the conspiracy. In order to withdraw from a conspiracy, the conspirator must let his co-conspirators know of his withdrawal in a matter reasonably calculated to reach them and it must reach them in time for the co-conspirators to terminate their conduct in furtherance of the conspiracy. Moreover, once a conspirator successfully withdraws from the conspiracy, the withdrawal only stops their liability going forward: they are still responsible for the conspiracy itself and for prior offenses committed (by themselves and their co-conspirators) in furtherance of the conspiracy. This concludes our discussion of the elements necessary to constitute a conspiracy.

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The right to remain silent and the right to counsel are implied rights grounded in the self-incrimination clause of the 5^th amendment. The landmark case of Miranda v. Arizona was decided by the United States Supreme Court in 1966 which held that statements obtained from defendants during incommunicado interrogation in police-dominated atmosphere, without full warning of constitutional rights, were inadmissible as having been obtained in violation of Fifth Amendment privilege against self-incrimination. There are three requirements that trigger Miranda protections: 1) Custody; 2) Interrogation; 3) Testimonial. For a custody situation to occur, the standard is whether a reasonable person would not feel free to leave because of an atmosphere infused by police domination and coercion. Custodial situations can arise in a person’s home while non-custodial situations can occur at the police station; the location is not dispositive of whether or not the situation was custodial. The standard for whether or not interrogation occurred is if the officers knew or should have known that his/her conduct made it likely that the person would incriminate themselves (this standard comes from Innis). Finally, the Miranda protections do not apply to things other than testimony: lineups do not necessitate Miranda protections because they are just displaying physical characteristics.

            A defendant’s Miranda rights can be waived through an express or implied waiver. This waiver must be knowing and intelligent—the defendant understood their rights and the consequences of abandoning them. The waiver must also be voluntary, free from police coercion. Also, a person can waive their rights and then change their mind and invoke their rights again. Under the Edwards doctrine, if a defendant asserts their right to counsel under the 5^th amendment then there can be no further interrogation on any subject unless the defendant himself initiates. Finally, the 5^th amendment is not offense specific: An assertion of your right to counsel applies to any criminal activity, not only the offense you are currently charged with.

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There are many myths associated with the highly publicized “Taking the 5^th” in the American criminal justice system. Obviously taking the 5^th refers to the 5^th amendment. It specifically refers to the self-incrimination clause of the 5^th amendment. First of all, anyone can take the 5^th in any proceeding if you feel you are going to incriminate yourself with your response. Therefore, a person can take the 5^th in both a criminal trial or a civil trial or any other proceeding taken under oath. Secondly, you have to take the 5^th on any given issue the first opportunity you have to do so. If you fail to take the 5^th and answer questions relating to a given issue, it is forever waived. The 5^th amendment protection pertains only to testimony, not to physical characteristics. Moreover, in the American criminal system a prosecutor cannot comment on a person taking the 5^th amendment or invoking your Miranda rights. So when is this privilege unavailable you ask? First, if you are granted immunity from criminal prosecution then you can no longer take the 5^th amendment. Use and derivative use immunity means they can’t use anything you say against you and they also cannot use anything derived from that statement against you. A second situation where the privilege is unavailable is if the statute of limitations has run on the crime meaning you can no longer be prosecuted for the crime. If either of these situations occur, the 5^th amendment privilege is no longer available. Finally, if a criminal defendant does take the stand and they are asked questions that are the proper subject of interrogation, they can no longer take the 5^th. Basically, a criminal defendant is not allowed to take the stand and say what they want on direct examination and then take the 5^th when the prosecutor attempts to cross examine them. Hopefully this information helps clear up some of the truths and myths associated with “Taking the 5^th Amendment”.

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For a 4^th Amendment violation to occur, there must be government conduct. This usually occurs through police actions. Also, some items are so public in nature that they do not carry a reasonable expectation of privacy. Generally, garbage, bank accounts, and odors emanating from your luggage are public in nature and do not implicate 4^th amendment protection. If the person has a reasonable expectation of privacy in the area and item searched, then the police need a warrant issued by a neutral and detached magistrate supported by probable cause and particularity in order to conduct a lawful search. However, there are a few exceptions to the warrant requirement that are considered lawful searches and will not be excluded in a court of law.

The first exception to the warrant requirement is known as “Exigent Circumstances”. These scenarios occur when the police are in hot pursuit of a fleeing felon or when there is evanescent evidence: evidence that burns up in your body such as blood alcohol level or balloons filled with drugs. Another important exception to the warrant requirement is a search incident to arrest. Due to concerns for officer safety and the preservation of evidence, the law allows a search incident to arrest of the individual so long as the arrest is lawful and the search is contemporaneous in time and place with the arrest. Moreover, the search is limited in geographic scope to within the wingspan of the arrested individual. A third important warrantless search exception deals with automobiles. If the officer has probable cause to believe that the car contains evidence of a crime then they are permitted to search the entire car. A fourth exception to the warrant requirement is the famous “Plain View” doctrine. The officers must have lawful access to the place from which the item can be plainly seen, lawful access to the object itself, and the criminality of the object must be readily apparent. A fifth exception to the warrant requirement occurs when an individual consents. This consent must be voluntary, not the product of police coercion. The person must have the authority to consent to the area or item searched. A sixth exception to the warrant requirement deals with Terry stops. Under the famous Terry decision, officers have a right to stop an individual if they have reasonable suspicion necessary to determine if criminal activity is afoot. If when stopping them the officer reasonably believes that the individual is armed and dangerous, officers are permitted to frisk the individual for weapons. If you detect contraband without manipulating the object, then the officer is permitted to seize this contraband as evidence of a crime. These exceptions are the main exceptions to the warrant requirement and permit law enforcement officers to conduct lawful searches absent the existence of a warrant supported by probable cause.

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Michael Vick has pled guilty to charges in Federal Court stemming from his connection to a dog fighting ring. As a result, Vick faces sentencing in Federal Court in December. In the past, the Federal Sentencing Guidelines have been mandatory. Therefore, Federal judges had little to no discretion in sentencing offenders. Depending on the offender’s prior criminal history, cooperation with the government, and other aggravating and mitigating factors, points are added and deducted to determine the length of the sentence. However, this all changed in October 2004 when the Booker decision came down from the United States Supreme Court. In Booker, the USSC made the Federal Sentencing Guidelines advisory rather than mandatory and reinstated judicial discretion in sentencing. As a result, things have changed significantly which could affect the sentence of Michael Vick. The prosecutors, as a result of Vick’s plea bargain, are recommending 12-18 months (the minimum under the Federal Sentencing Guidelines). However, because of the judicial discretion involved, Vick could receive the maximum five-year sentence. The judge in this case, Henry E. Hudson, has a reputation for being tough on crime. We will see if the Booker decision and re-emergence of judicial discretion in sentencing offenders in Federal Court affects the sentence of Atlanta Falcons quarterback Michael Vick.

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