Articles Posted in General Criminal

The Borough of West Long Branch embarked on an aggressive expansion of its police facility last year. A new police station is currently in the process of construction just behind the West Long Branch Municipal Court on Broadway. The projected final cost of the station is approximately $3,000,000.

One might ask why I would report on this news? The honest truth is that I anticipate an increased “police presence” in future months to which the public should be mindful.  While the West Long Branch Municipal Court is already busy, presiding over not only tickets and criminal complaints issued in the community, but all those issued by the university police at Monmouth University as well.  This includes all of the underage drinking, possession of alcohol by a minor,  disorderly persons and marijuana possession charges issued at the college. Now that the town has spent so much money on a new headquarters, you can fully expect the volume of charges heard in West Long Branch Municipal Court to grow. Those who are easy targets, including college students, should keep this heads up in mind.

One of the more sketchy criminal offenses our NJ defense lawyers handle are harassment charges.  The conduct prohibited by the harassment statute is rather abstract and these cases therefore tend to be very fact sensitive. There is also an element of subjectivity which frequently comes into play in the defense of NJ harassment cases.  To better understand this dynamic, we need to review the NJ harassment law.

N.J.S.A. 2C:33-4, titled “Harassment”, prohibits individuals from making communications anonymously, at extremely inconvenient hours or that are offensively course, and with the purpose to harass.  The statute also criminalizes conduct committed for the purpose to harass which is alarming or seriously annoying. The first pedigree of NJ harassment involves communications including verbal, written, and electronic (e.g. telephone, computer, or other data transmission).  Whether a communication constitutes harassment depends on the prior course of the parties, the setting of the utterance, and the gender, age and occupation of the person to whom the utterance was passed.  A communication may be harassing depending on the sensitivity of one individual yet not be harassment to another.  What is pivotal is that it was actually harassing to the individual and that the communicator intended the communication to be harassing. The second form of NJ harassment involves conduct as opposed to communication.  In other words, what we are now speaking of is harassing behavior. To be actionable under N.J.S.A. 2C:33-4, the conduct must be alarming or seriously annoying.  A minor disturbance does not constitute a violation insofar as the annoyance must be either “serious” or alarming.

One can see that the statute is quite broad, encompassing “communications”, without specifying exactly what “words” or “types” of communications are taboo.  In the same instances, the law indicates that the subjective sensitivities of the victim has some relevance.  These dynamics of the law make for some rather wide ranging and disparate decisions by our Courts.  We find that it is therefore crucial that all of the important facts and arguments be made as cogently as possible otherwise an erroneous interpretation of the facts (i.e. a conviction) is of greater possibility.  Our NJ Harassment Defense Attorneys are experienced in handling these cases and always take advantage of the opportunity to clarify the facts and case law such that a harassment conviction is avoided.

The framework for classifying criminal charges in NJ does not follow the traditional approach of many states. Most jurisdictions categorize crimes in terms of Misdemeanor and Felony Offenses. Our criminal code does not subscribe to this approach and, instead, speaks in terms of Indictable Crimes and Disorderly Persons Offenses.

A felony is typically viewed as any charge that involves a potential period of incarceration of more than six (6) months. Under New Jersey law, this would include First Degree, Second Degree, Third Degree, and Fourth Degree crimes. All of these grades of offense involve jail exposure exceeding a year. Therefore, they fall within the traditional definition for a “felony”. Additionally, the US Constitution mandates that a state indict an individual before they may be convicted of a “crime” or felony. First, Second, Third, and Fourth Degree crimes carry a right of indictment in NJ so they, again, are felonies on this basis as well.

This explanation is provided as individuals are often unaware of whether they are the subject of a felony or misdemeanor when they receive a complaint. If the charge involves a crime of any “Degree”, it is a felony.

Confidential informants (commonly referred to as a “CI”) are encountered in criminal cases we handle in New Jersey almost every day. The common scenario is someone who has been arrested and decides to cooperate with police, making controlled buys from a particular “target”. The goal of the police is to arrest bigger fish while maintaining the confidentiality of the informant. The law in NJ is extremely protective of the identity of a confidential informant since commonplace disclosure would discourage cooperation given the threat of retaliation against the informant. This being the case, it is often a highly beneficial strategy for the defense to fight for disclosure, particularly, where an informant continues to have value to the police. But when is this possible in New Jersey?

Both NJ Rule of Evidence 516 and N.J.S.A. 2A:84A-28 address when disclosure of the identity of an informant may be obtained. In this regard,

A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.

The move towards legalizing online gambling in New Jersey gained momentum this week when a Senate Committee passed S1565, which would authorize casinos in Atlantic City to set up Internet gambling access for their patrons.

Specifically, S1565 provides, most pertinently:

  • all games, including poker, which may be played at a casino, as well as variations or composites thereof, may be offered through Internet wagering;

There are many myths associated with the highly publicized “Taking the 5th” in the American criminal justice system. Obviously taking the 5th refers to the 5th amendment. It specifically refers to the self-incrimination clause of the 5th amendment. First of all, anyone can take the 5th in any proceeding if you feel you are going to incriminate yourself with your response. Therefore, a person can take the 5th in both a criminal trial or a civil trial or any other proceeding taken under oath. Secondly, you have to take the 5th on any given issue the first opportunity you have to do so. If you fail to take the 5th and answer questions relating to a given issue, it is forever waived. The 5th 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 5th 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 5th 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 5th 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 5th. Basically, a criminal defendant is not allowed to take the stand and say what they want on direct examination and then take the 5th when the prosecutor attempts to cross examine them. Hopefully this information helps clear up some of the truths and myths associated with “Taking the 5th Amendment”.

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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