Articles Posted in General Criminal

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.

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.

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;

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.

Under the New Jersey Driving While Intoxicated (DWI) Statute, N.J.S.A. 39:4-50, there is a mandatory license suspension for a driving while intoxicated offense. The nature of the license suspension depends on the blood alcohol content (BAC) of the driver and the driver’s prior history of DWI charges. If this is a first offense and the blood alcohol readings from the breathalyzer machine read between .08% (the legal limit in New Jersey) and .10%, then the offender will be facing a three month license suspension. If this is a first offense and the BAC is greater than .10%, then the driver will be facing between seven months and one year license suspension. If this is a second offense, the driver will be facing one year suspension of his New Jersey Driver’s license. If this is a third offense, the driver is looking at a ten year suspension of your driving license. Therefore, it is imperative that you contact an experienced DWI attorney to explore your prior offenses and attempt to avoid classification as a second or third DWI offender in New Jersey.

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.

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.

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.

The New Jersey Legislature recently approved stiffer penalties for individuals found guilty of road rage.  Individuals were previously exposed to a fourth degree offense and up to 18 months in jail.  The amendment now makes it a third degree offense and carries up to 5 years in jail.  The bill loosely defines “road rage” as including any actions or maneuvers of aggression, akin to harassment with a car (e.g. tailgating, driving at an excessive speed, weaving through traffic, etc.).

The legislative revision was contained in a bill captioned “Jessica’s Law”, named after a young lady seriously injured as a result of a road rage incident.  Jessica was injured when an individual who believed he was cut off weaved through traffic, causing an accident. 

Over the last 15 to 20 years as a defense lawyer, I have learned that there are simply some people out there who could be described as unreasonable, irrational, and even unstable.  Many have seen these individuals on the road waving their hands, yelling or even driving aggressively for seemingly nothing.  While I certainly agree with the revision of the statute, I have a hard time thinking that it is going to deter the type of individual who engages in “road rage”. 

It was reported last week that a Federal lawsuit had been filed by the Cook County Sheriff against Craigslist.  The lawsuit alleges that Craigslist has effectively created the largest source for soliciting and/or promoting prostitution in the United States.  It is important to emphasize that this is a lawsuit and not a criminal proceeding.  No charges for promoting prostitution or solicitation have been filed, nor are any contemplated.

Federal law immunizes online advertisers from liability stemming from inappropriate ads placed on their sites provided a proper disclaimer is published on the site.  The lawsuit alleges Craigslist repeatedly ignored notices that the site was being used for purposes of solicitation and to promote prostitution.  Cook County claims that these actions negate Craigslist’s shield under the law.

Our law firm includes a team of NJ Prostitution Defense Lawyers and I have to admit that Craigslist is clearly a primary source for online solicitation.  There are also other portals on the site which arguable give rise to New Jersey Lewdness Charges.  The fact remains, however, that the site is explicitly limited to adults and that Craigslist has no role in the conduct beyond allowing placement of ads.  While it is obvious that the intention of the advertising is to promote prostitution, Federal law affords broad immunity to an entity like Craigslist.  I have serious doubts that these claims will result in any government action against Craigslist.

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