Articles Posted in Drug Offenses

When a defendant is convicted of a crime, the sentencing court will typically assess his or her prior criminal record to determine an appropriate sentence. Further, while the courts often must adhere to sentencing guidelines, they can issue a reduced sentence if they find there are mitigating factors that warrant leniency. Thus, if a court relies on inaccurate information regarding a defendant’s background and history, it can result in a sentencing error and may provide a basis for asking the sentence to be vacated. This was demonstrated in a recent New Jersey case in which the court issued a sentence to a defendant convicted of illegal reentry into the United States based on facts that were inaccurate. If you are charged with a state or federal crime, it is in your best interest to speak to an experienced New Jersey criminal defense attorney to consider what defenses you may be able to assert.

Factual and Procedural History  

It is reported that the defendant was arrested in 2018 for illegal reentry into the United States. He pled guilty to his charges. Prior to his 2018 arrest, he had been convicted in March 2001 on drug charges, after which he was removed from the country. He reentered illegally and was convicted of state and federal drug crimes in 2007, after which he was once again deported in 2013. His most recent arrest was after his 2013 return.

Allegedly, during the sentencing hearing, the defendant argued that his most recent return was not to engage in criminal activity, but so that he could assist his wife with their children. The judge, in recounting the defendant’s criminal history, improperly stated that the defendant was convicted of drug crimes after the birth of his children and that he was deported three times for such crimes, rather than two. After his sentence was issued, the defendant appealed, arguing that the errors undermined his request for leniency.

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People throughout New Jersey are aware that if individuals are stopped by the police, they must first be advised of their Miranda rights before any interrogation begins. It is not typical, though, for a person to know the full extent of the Miranda warning or to know if a less then complete warning has been administered. Regardless of an individual’s independent knowledge of their rights, if an investigating officer fails to provide a proper warning to a defendant, it may result in the dismissal of any conviction that arises out of evidence obtained via the defendant’s interrogation, as shown in a recent New Jersey case. If you are accused of a crime, it is advisable to meet with an accomplished New Jersey criminal defense attorney to examine your rights.

Facts of the Case

It is reported that the police stopped a car in the early morning for a traffic violation. There were two passengers in the car, one of whom was the defendant, that the driver identified as minors. The police noticed an odor of alcohol during the stop and requested that the driver undergo field sobriety testing. The driver became belligerent and ordered the other passengers to take things from the car. When the passenger door was opened the smell of marijuana wafted out of the vehicle. The police then advised the defendant to place her belongings back in the car because, at that time, they were going to conduct a narcotics investigation. The defendant complied and was advised of her Miranda rights.

Allegedly, the officer then asked the defendant if a purse in the car belonged to her. She responded, yes. The officer did not confirm that the defendant waived her rights prior to questioning her. Narcotics were found in the purse. The defendant was then charged with possession of a controlled dangerous substance and was adjudicated delinquent. She appealed, arguing that she was not properly advised of her rights.

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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

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)

Local news sources have reported on the arrest of a Monmouth County man stemming from his attempt to fill a fake prescription in Middlesex County.  The script was for oxycodone and was presented in the name of a NY physician.  The gentelmen was charged with Third Degree Prescription Fraud and an assortment of other charges. We have been consulted by the suspect based on our experience in this area of law.

The main laws implicated in a case like this are N.J.S.A. 2C:35-13 (“Obtaining Prescription Drugs by Fraud”), N.J.S.A. 2C:21-1  (“Forgery”), and N.J.S.A. 2C:35-10.5 (“Prescription Drug Possession or Distribution”). The primary focus of the prosecution in these cases is typically the Prescription Fraud charge under N.J.S.A. 2C:35-13, which is a Third Degree Crime. The possession offense is usually secondary as most individuals are caught without obtaining the prescription drugs or otherwise possess a limited quantity of pills.  There is also a Fourth Degree charge which comes up in these cases that involves possession of a prescription drug without a valid prescription issued by a licensed doctor. 

We also find that these charges frequently have a dependency overlay.  Opiate drugs can be very addictive and can cause all types of people to resort to criminal conduct to avoid withdrawal sickness. In fact, we have even represented doctors, pharmacists, pharmaceutical sales representatives, nurses, and medical office managers on these types of charges.  Over our years of experience defending these cases, we have built a network of professionals to address dependency issues which allows us to attack these cases on all fronts.

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.

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