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Understanding New Jersey Criminal Charges

August 20, 2013 Leave a comment

Image2013-08-05 22.54.06

WHAT IS A DISORDERLY PERSONS OFFENSE

Disorderly persons and petty disorderly persons offenses are the most common variety of non-motor vehicle charge prosecuted in Municipal Court in NJ. If you have been charged with a disorderly persons offense, the most important thing you need to know is that a record of a resulting conviction shall show on a criminal background check. It is therefore extremely important that you retain an experienced NJ defense attorney to insure that your complaint is downgraded to a Municipal Ordinance or dismissed altogether. Our defense team possesses over 60 years of experience defending almost every type of disorderly persons charge in New Jersey and even includes two former Municipal Prosecutors. Our lawyers are familiar with how these cases need to be handled, having prosecuted these cases in over 20 NJ municipalities and defended literally 1000s of disorderly and petty disorderly charges. Make sure your complaint and/or arrest does not result in your being convicted, and contact a lawyer from our firm, the Law Offices of Benjamin G. Kelsen, Esq. LLC, for a complementary initial consultation anytime.

The most frequently encountered disorderly persons offenses in Municipal Court are:
1. Simple Assault
2. Possession of Less than 50 Grams of Marijuana
3. Drug Paraphernalia
4. Harassment
5. Shoplifting
6. Disorderly Conduct
7. Resisting Arrest
8. Bad Checks
9. Lewdness
10. Obstruction of Justice

Penalties If Convicted of these Charges

The penalties under New Jersey law for individuals convicted of a Petty Disorderly Persons Offense or regular Disorderly Persons Offense include a jail sentence of up to six (6) months. The Court may also impose a monetary fine of up to $1,000. Any conviction also carries mandatory assessments of $50 for the Victims of Crime Compensation Board (VCCB), $75 for the Safe Neighborhood Services Fund, and $33 in court costs. For additional detail concerning penalties, consult our page titled Disorderly Persons Offense Fines & Penalties.

Difference Between a “Crime” and Disorderly Persons Charge. The New Jersey code refers to violations of law in terms of “crime” or “offense”. Whenever the code uses the term offense, it is referring to a disorderly person or petty disorderly person charge. By contrast, a crime is an offense that is customarily defined as a felony in other states and involves exposure to six (6) months or more in possible incarceration in jail. An individual is entitled to have allegations of a crime presented to a grand jury, hence NJ’s reference to these offenses as Indictable. An individual arrested for a Disorderly Persons offense has no right to a grand jury as these are non-indictable charges punishable by a maximum period of imprisonment of six (6) months.

Statute of Limitation for Filing Disorderly Persons Cases. The statute of limitation for prosecution of disorderly persons offenses like simple assault, harassment, bad checks or the like is one (1) year. What this means is that a complaint alleging, for example, resisting arrest, possession of less than 50 grams of marijuana or obstruction or drug paraphernalia, must be filed with the Court within a year of commission of the related offense or the complaint is barred from prosecution by virtue of it being out-of-time under the law of New Jersey.

Expungement of Disorderly Person Convictions. A person who has been convicted of a disorderly or petty disorderly persons offense may seek expungement five (5) years following conviction or completion of probation and payment of fines, whichever is later. Eligibility to have a petty or disorderly persons offense expunged is limited to individuals with no more than three (3) convictions of this nature and persons who have never been convicted of a “crime”.

Diversion Programs for these Offenses. A program referred to as Conditional Discharge allows individuals charged with Possession of Less than 50 Grams of Marijuana and Drug Paraphernalia to avoid conviction provided they meet certain requirements and successfully complete approximately one (1) year of probation. Pretrial Intervention is presently unavailable in Municipal Court as a means of diverting and/or avoiding conviction for disorderly persons offenses.

If you would like more information about disorderly persons charges, one of our attorneys would be happy to assist you. Our lawyers are always eager to assist individuals in need of our assistance and initial consultations are always free of charge. Don’t make a decision in the dark if you have been charged with a disorderly persons complaint in Bergen County, Passaic County, Monmouth County, Union County, Middlesex County, Ocean County, Hudson County, Essex County, Morris County, Mercer County or elsewhere in NJ. The assistance you need from a knowledgeable attorney is just a telephone call away at 1-800-380-5591.

What is an Indictable Criminal Charges

A category of crimes that can have a particularly significant effect on a persons life are indictable offenses. Charges of this nature require the experience of a seasoned attorney. If you were arrested on allegations of an indictable offense, the defense lawyers at our firm, the Law Offices of Jonathan Marshall, have the know how and expertise you need. Do not hesitate to contact us if you are the subject of an indictable charge in Monmouth County, Middlesex County, Ocean County, Hudson County, Morris County, Union County, Mercer County or elsewhere in NJ.

Grand Jury Presentation
When a criminal complaint alleges a First Degree, Second Degree, Third Degree or Fourth Degree crime, the offense is indictable in nature. What this means is that a defendant possesses an absolute right to have his or her charge presented to a grand jury when they have been issued a criminal complaint for this type of charge. A grand jury is a panel of 23 citizens that decides whether there is sufficient evidence for the state to prosecute an individual for a particular indictable offense.

Experienced & Aggressive Defense Attorneys

With over 13 years handling indictable charges, we have handled numerous Superior Court cases. This experience translates into a thorough understanding of the court system and law. It also affords us the wisdom to know when a case should be aggressively defended through trial or finessed in order to arrive at the absolute best outcome for our client. We handle a wide variety of crimes to which an individual may be indicted including:

1. Possession and Distribution of Controlled Dangerous Substance (“CDS”)
2. Eluding
3. Robbery
4. Aggravated Assault
5. Prescription Drug Fraud
6. Burglary
7. Credit Card Fraud
8. Firearm & Weapons Charges
9. Conspiracy
10. Penalties for Indictable Offenses

Grading of indictable charges is by “degree”, with First Degree being the most serious and Fourth Degree the least. The Fines and Jail Exposure escalate with the seriousness of the related criminal charges. A First Degree crime carries 10-20 years in prison and a fine of up to $200,000. A Second or Third Degree charge involves jail of 5-10 years and 0-5 years, and fines of $150,000 and $15,000, respectively. A Fourth Degree crime has a jail range of 0 to 18 months and a fine that can reach $10,000.

Don’t rely on guess work with your future, speak to an attorney without obligation now at 1-800-380-5591 about your Bergen County, Passaic County, Middlesex County, Monmouth County, Union County, Ocean County, Morris County, Hudson County, Essex County, Mercer County or Burlington County, case. A lawyer will address your concerns and provide you with appropriate guidance you need to avoid conviction.

 

False Child Molestation Claims Held To Amount To Child Abuse

November 28, 2012 Leave a comment

False Child Molestation Claims Held To Amount To Child Abuse

Charles Toutant

New Jersey Law Journal

11-27-2012

A mother subjected her daughter to abuse and neglect by making baseless reports that the child was molested by her father, the Appellate Division ruled Tuesday.

By lodging the claims, and coaching the girl to corroborate them, the mother showed a reckless disregard for her child, the court said in DYFS v. C.O., A-2387-11.

The girl’s well-being was further jeopardized by the stress of physical and psychological examinations during the sex-abuse investigations, the court added.

The girl, referred to by the pseudonym Amy, was born in November 2006 after a brief romance between her parents, referred to as Sally and Charles.

Sally resisted letting Charles spend time with Amy, but he won visitation rights shortly before her first birthday.

In April 2010, when Amy was 3, Sally took her to an emergency room and said Charles had penetrated the girl’s vagina with a vibrating device while she was visiting him.

An investigation was conducted in New York, where Charles lived. The New Jersey Division of Youth and Family Services (DYFS) remained involved because Amy is a state resident.

New York police found no evidence of sexual abuse, based on a physical examination, conflicting accounts by Amy and Sally, and interviews of guests at a party attended by Charles and Amy at the time of the alleged abuse.

DYFS and Child Protective Services (CPS) in New York also found no sexual abuse. They cited the same sources, as well as a videotape of the party showing Amy playing happily and photographs of Amy’s genital and anal areas, taken by Sally’s father before and after the visit, which did not display any injury.

DYFS and CPS also cited counselors’ concerns that Amy’s statements had been prompted by Sally.

While that investigation was under way, Sally made additional allegations of sexual abuse against Charles and insisted that Amy have a second, invasive physical exam. Again, no signs of sexual abuse were found.

DYFS contended that Sally’s continuing conduct was harmful to Amy, in violation of N.J.S.A. 9:6-8.21 to -8.73, which defines child abuse and neglect.

A judge granted DYFS’s motion to transfer residential custody of Amy to Charles on May 13, 2010, pending a fact-finding hearing. The hearing was conducted on 12 nonconsecutive days between November 2010 and July 2011.

In December 2011, Bergen County Superior Court Judge Bonnie Mizdol ruled that DYFS had sustained its burden of proof that Sally exhibited a pattern of reckless disregard that harmed Amy.

Mizdol cited the “repeated, unnecessary medical, physical and psychological examinations” and Sally’s attempts “to shape and manipulate” Amy’s behavior to further Sally’s goal to isolate Charles “from any meaningful parental relationship with his daughter.”

Sally appealed, contending that Mizdol’s factual findings were not supported and that Sally’s constitutional rights were violated by the nonconsecutive hearing dates.

Appellate Division Judges Clarkson Fisher, Carmen Alvarez and Alexander Waugh Jr. affirmed, adding that Sally had not intended to hurt Amy.

The panel cited the stress of multiple investigations, Sally’s insistence on a second physical examination and counselors’ notes that Amy had an enhanced knowledge of sexual matters for a child of her age.

In addition, the panel said Mizdol properly characterized the mother’s conduct as “abuse or neglect.”

Noting that the child-abuse statute requires such conduct to rise above the level of mere negligence, and requires conduct that is “grossly or wantonly negligent” or “reckless,” the appeals court cited Mizdol’s finding that the mother’s conduct was “reckless.”

Sally also claimed that her pursuit of a clear answer as to whether her child was sexually abused did not constitute grossly or wantonly negligent behavior.

The appeals judges noted, however, that Sally had received a clear answer from Child Protective Services and the police but would not accept it.

“The reckless disregard found by the judge stemmed not from Sally’s efforts to rule out sexual abuse, but rather from her refusal to recognize a clear answer once she had one and her continued, baseless assertions that Charles had abused Amy,” the panel added.

Sally also disputed Mizdol’s conclusion that she had coached Amy, citing a counselor who supported her view.

But the appeals court said Mizdol’s finding was appropriately supported by two other counselors and an interview of Amy by a New York child-abuse investigator and a sheriff’s officer.

The panel also rejected Sally’s claim that her rights were violated by nonconsecutive hearing dates. Although R. 5:3-6 requires a trial to run over consecutive days, the delays were caused by scheduling issues, including Sally’s work schedule and the judge’s trial calendar, the panel said.

Sally’s lawyer, James Doyle of Swenson & Doyle in Hackensack, says the ruling unfairly labels his client a child abuser because she sought further reassurance that Amy had not been abused.

DYFS did a poor job of communicating to Sally the outcome of that inquiry, says Doyle. He adds that Sally no longer suspects Charles of child abuse and still hopes to regain primary custody but the abuse and neglect finding makes that difficult.

DYFS was represented by Assistant Attorney General Andrea Silkowitz. Lee Moore, a spokesman for the Attorney General’s Office, says his agency will not comment.

 

SCOTUS ALERT: The Affordable Care Act is Constitutional

June 28, 2012 1 comment

SCOTUS ALERT: The Affordable Care Act (“Obamacare”) is Constitutional

http://www.scribd.com/doc/98543773

In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

FROM SCOTUSBLOG: Essentially, a majority of the Court has accepted the Administration’s backup argument that, as Roberts put it, “the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.” Actually, this was the Administration’s second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.

The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

Interesting, at least to scholars, that while the mandate and its attached penalty are a tax for purposes of its constitutionality, but not for the Anti-Injunction Act. If it were a tax for AIA purposes, this case would not have been decided re the mandate.

For all of those who second-guessed the Solicitor General’s defense of ACA, it might be worth noting that the tax defense of the mandate was, indeed, an argument that the government lawyer did advance.

 

Supreme Court can’t stop entire health-care reform law in N.J.

June 25, 2012 Leave a comment

From this morning’s Bergen Record

Supreme Court can’t stop entire health-care reform law in N.J.

 

Monday June 25, 2012, 12:42 AM
BY LINDY WASHBURN
STAFF WRITER
The Record

No matter what the U.S. Supreme Court decrees this week on the controversial Obama health care reforms, the law has already prompted changes in New Jersey that will endure, doctors and insurers say.

The implications of the justices’ ruling — which will address the constitutional question of whether Congress can require Americans to buy health insurance — are enormous for a broad swath of the nation’s economy, presidential politics and the role of government in health care.

Yet some of the changes the law has accelerated or set in motion are unstoppable.

Already, for example, doctors in New Jersey are more likely to use computers in their practices, young adults are more likely to be insured and health centers that serve the most vulnerable are better equipped for an influx of new patients. Some changes that will survive:

äŸA popular provision of the law has extended coverage to some 68,000 young people  who are allowed to remain on their parents’ plans until age 26. It will still be honored by UnitedHealthcare and Aetna, which together account for more than a third of the state’s insurance market, according to their executives.

äŸNew community health centers provide preventive and primary care to increasing numbers of the state’s million uninsured residents. Existing centers, including ones in Garfield, Hackensack and Paterson, shared $26 million in federal funds from the law to renovate, computerize and add hours, and a new center is set to open in Englewood today. Last year, all of them combined saw a record 453,000 patients, 43 percent of them uninsured.

äŸMillions of dollars has poured into New Jersey for health-information technology, including incentives awarded last week to 43 hospitals and 2,400 physicians who converted to electronic medical records. Increasingly, doctors write prescriptions, check lab results and take notes on a laptop or bedside computer — a belated digital revolution hastened by the law and intended to reduce medication errors and redundant vaccines and tests.

Health providers and payers are saying this thing is already out of the barn,” said Kerry McKean Kelly, a vice president of the New Jersey Hospital Association. “We’ve implemented it and will continue to do so. If the law is struck down, there are many parts of it that could survive.”

Opponents of President Obama’s Patient Protection and Affordable Care Act argue that its “individual mandate,” which requires people to buy insurance or pay a penalty, is unconstitutional. Depending on how the court views that argument, it must also decide whether, without a mandate, the rest of the law — including consumer protections that bar exclusion of sick people and lifetime limits on health insurance — should stand.

Opponents also say the law’s required expansion of Medicaid, a joint federal-state program that now insures a more narrowly defined population of poor people, is an infringement on states’ rights.

If the court voids the entire law — one of several of its options — a requirement to take effect in 2014 compelling insurers to accept all applicants, regardless of preexisting conditions, could vanish. There also could be less government scrutiny over insurance rate increases or the amounts insurers spend on health care. And insurers could recover the ability they had before 2010 to cancel policies retroactively.

New Jersey’s Republican administration has adopted a wait-and-see approach to implementing some parts of the law. Unlike other Republican-led states, New Jersey was not one of the 26 that sued to block it. Governor Christie did not reject federal funds that, for example, subsidize insurance for sick people who’d previously been unable to get coverage for their illnesses; as a result, more than 1,000 are now covered.

And the governor did not block $8.8 million in federal grants to develop an online health-insurance exchange through which consumers could shop for coverage when the mandate takes effect in 2014. But he vetoed legislation to create the exchange, citing a need to wait for the court’s ruling.

The law also provided more than $95 million in rebates and discounts to senior citizens in New Jersey for prescription drugs under changes in Medicare Part D. And employers ranging from the Borough of Fair Lawn to Medco Health Solutions benefited from temporary federal subsidies to extend insurance for workers over age 55 — but younger than Medicare’s eligibility age of 65 — who have been offered early retirement.

In the two years since the law was signed, health care costs — and the number of people without insurance — have climbed. The mandate, by making insurance more accessible to younger, healthier people when it starts in 2014, is supposed to address that.

“We finally reached the breaking point in New Jersey,” said Christine Stearns, vice president of the New Jersey Business & Industry Association, representing more than 21,000 companies, the vast majority of them with fewer than 100 employees.

The number of people insured by the state’s small businesses dropped 20 percent over the last two years, she said, as the economy tanked and premiums rose 10 to 20 percent in 2010 and 10 percent last year.

“The rate of premium increases for health insurance is unsustainable and has been unsustainable for a long time,” she said.

Two-thirds of the state’s uninsured are in families where at least one person works full time.

When companies do offer insurance, the policies cover less and cost employees more — both in premiums and out-of-pocket costs — than they did a decade ago. Employee contributions for family coverage doubled among private-sector employees in the decade ending in 2009, while premium costs grew by 62 percent. The average family deductible for a private employee was more than $1,800 three years ago, higher than the national average.

“If the court shuts down all of the law or part of it, we have to do something in New Jersey,” said state Sen. Joseph Vitale, D-Woodbridge, chairman of the Senate Health Committee.

The spiral of ever-higher premiums and more uninsured people drags down the economy and hurts hospitals, which, by law, cannot turn patients away from their emergency rooms. Already, uncompensated care is estimated to add $1,000 to the average premium for family coverage, which hovers around $12,000 a year in New Jersey.

Before Obama’s election, Vitale convened legislative leaders and stakeholders to develop a plan to achieve universal coverage in New Jersey. Their first step — making insurance available to all children — was enacted, but the group went on hiatus to await federal health care reform. Vitale said last week he’d gather the group again.

In the meantime, insurers and hospitals are taking steps to try to bring health care costs under control. In part, they’re responding to the law’s attempts to corral Medicare spending and use Medicare dollars to reward hospitals that provide better and more efficient care and penalize the ones that do not.

Under these new incentives, hospitals and doctors won’t be able to ring up higher payments by doing more tests and procedures. Instead, Medicare and other insurers will require them to prove they’re doing their best to prevent disease and to treat it with the least duplication of services. They’ll be rewarded for high-quality care — fewer trips to the emergency room, fewer readmissions to the hospital, fewer hospital-acquired infections — and denied payment for botched care.

Horizon Blue Cross and Blue Shield of New Jersey — with 3.6 million members, the state’s largest insurer — spun off an entire subsidiary two years ago to field-test programs that harness its vast warehouse of health care data and change its reimbursement formulas.

“Our commitment will not at all be impacted by the Supreme Court,” said James F. Albano, vice president of Horizon Healthcare Innovations, the subsidiary of Horizon. “The intent is for all of our members to benefit from these models.”

So far, the insurer says it has reduced medical costs by 10 percent and emergency room visits by 26 percent in a pilot program for so-called “patient-centered medical homes” — primary-care physicians’ offices that coordinate patient care. The project will expand to encompass 200,000 members by the end of the year.

For patients, the new model is supposed to eliminate the frustration of dealing with multiple doctors and the need to share the same information over and over with each one. The primary-care doctor’s office actually quarterbacks their care — asking why they haven’t filled a prescription for blood-pressure medication or an asthma inhaler, for example, or reminding them to schedule a mammogram. They won’t have to repeat shots or lab tests or imaging because their records will be available to each doctor who cares for them. And, experts say, they’ll spend less time in the hospital, getting out to rehab or home care and avoiding costly readmissions.

Other insurers like Aetna, with 1.1 million members statewide, also have embraced the same model, which pays primary-care doctors an extra fee for their coordination. Medicare has chosen New Jersey as one of seven markets where a “comprehensive primary-care initiative” will be tested with 75 physician practices and five insurance companies.

At the same time, hospitals are strengthening their relationships with doctors to try to make sure everyone pulls in the same direction, motivated in part by Medicare’s new commitment under the law to share savings with them. New “accountable care organizations” — networks of hospitals and doctors — have been approved by Medicare at The Valley Hospital in Ridgewood and Hackensack University Medical Center; other hospitals expect to have them soon.

The old-fashioned solo doctor’s office is disappearing from Main Street as doctors become hospital employees or join large groups. Hackensack has invested heavily in buying cardiology and primary-care practices, said Robert C. Garrett, its president and chief executive — calling it “a trend that will continue with or without the law.”

“The current system cannot continue,” agreed Joseph Lemaire, executive vice president and chief financial officer at Holy Name Medical Center in Teaneck. “It’s too expensive, too uncoordinated.” Holy Name now employs more than 60 physicians, he said, including primary-care doctors, obstetricians and radiologists.

“It used to be we were concerned from the day of admission to the day of discharge,” said Robert Glenning, Hackensack’s chief financial officer. “Now we’re looking beyond the day of discharge to reduce the readmission rate, and be sure when patients leave here they go to the right rehab, long-term care or home care.”

These changes have been hastened by the Affordable Care Act, said Garrett, but they’ll continue “because they’re the right things for patients.”

Email: washburn@northjersey.com

SCOTUS RULES: Okay to Strip Search NJ Petty Offenders in Jail

April 2, 2012 2 comments
[04/02/2012 – 3:14 P.M.] This morning, the United States Supreme Court ruled in a New Jersey case that people who are arrested for traffic violations and petty criminal offenses can lawfully be subject to strip searches in county jails.  A syllabus of this opinion is printed below.
    Petitioner was arrested during a traffic stop by a New Jersey state trooper who checked a statewide computer database and found a bench warrant issued for petitioner’s arrest after he failed to appear at a hearing to enforce a fine. He was initially detained in the Burlington County Detention Center and later in the Essex County Correctional Facility, but was released once it was determined that the fine had been paid. At the first jail, petitioner, like every incoming detainee, had to shower with a delousing agent and was checked for scars, marks, gang tattoos, and contraband as he disrobed. Petitioner claims that he also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the second jail, petitioner, like other arriving detainees, had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, armpits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to lift his genitals, turn around, and cough while squatting. He filed a 42 U. S. C. §1983 action in the Federal District Court against the government entities that ran the jails and other defendants, alleging Fourth and Fourteenth Amendment violations, and arguing that persons arrested for minor offenses cannot be subjected to invasive searches unless prison officials have reason to suspect concealment of weapons, drugs, or other contraband. The court granted him summary judgment, ruling that “strip-searching” nonindictable offenders without reasonable suspicion violates the Fourth Amendment . The Third Circuit reversed.
Held: The judgment is affirmed.
621 F. 3d 296, affirmed.
     Justice Kennedy delivered the opinion of the Court, except as to Part IV, concluding that the search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of the institutions, and thus the Fourth and Fourteenth Amendment s do not require adoption of the framework and rules petitioner pro- poses. Pp. 5−18, 19.
     (a) Maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to problems. A regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.” Turner v. Safley482 U. S. 78 . This Court, in Bell v. Wolfish441 U. S. 520 , upheld a rule requiring pretrial detainees in federal correctional facilities “to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution[s],” deferring to the judgment of correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items. In Block v. Rutherford, 468 U. S. 576 −587, the Court upheld a general ban on contact visits in a county jail, noting the smuggling threat posed by such visits and the difficulty of carving out exceptions for certain detainees. The Court, in Hudson v. Palmer, 468 U. S. 517 −523, also recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions when it upheld the constitutionality of random searches of inmate lockers and cells even without suspicion that an inmate is concealing a prohibited item. These cases establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities, and that “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters,” Block, supra, at 584–585.
     Persons arrested for minor offenses may be among the detainees to be processed at jails. See Atwater v. Lago Vista532 U. S. 318 . Pp. 5−9.
     (b) The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of new inmates creates risks for staff, the existing detainee population, and the new detainees themselves. Officials therefore must screen for contagious infections and for wounds or injuries requiring immediate medical attention. It may be difficult to identify and treat medical problems until detainees remove their clothes for a visual inspection. Jails and prisons also face potential gang violence, giving them reasonable justification for a visual inspection of detainees for signs of gang affiliation as part of the intake process. Additionally, correctional officials have to detect weapons, drugs, alcohol, and other prohibited items new detainees may possess. Drugs can make inmates aggressive toward officers or each other, and drug trading can lead to violent confrontations. Contraband has value in a jail’s culture and underground economy, and competition for scarce goods can lead to violence, extortion, and disorder. Pp. 9−13.
     (c) Petitioner’s proposal―that new detainees not arrested for serious crimes or for offenses involving weapons or drugs be exempt from invasive searches unless they give officers a particular reason to suspect them of hiding contraband―is unworkable. The seriousness of an offense is a poor predictor of who has contraband, and it would be difficult to determine whether individual detainees fall within the proposed exemption. Even persons arrested for a minor offense may be coerced by others into concealing contraband. Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility.
     It also may be difficult to classify inmates by their current and prior offenses before the intake search. Jail officials know little at the outset about an arrestee, who may be carrying a false ID or lie about his identity. The officers conducting an initial search often do not have access to criminal history records. And those records can be inaccurate or incomplete. Even with accurate information, officers would encounter serious implementation difficulties. They would be required to determine quickly whether any underlying offenses were serious enough to authorize the more invasive search protocol. Other possible classifications based on characteristics of individual detainees also might prove to be unworkable or even give rise to charges of discriminatory application. To avoid liability, officers might be inclined not to conduct a thorough search in any close case, thus creating unnecessary risk for the entire jail population. While the restrictions petitioner suggests would limit the intrusion on the privacy of some detainees, it would be at the risk of increased danger to everyone in the facility, including the less serious offenders. The Fourth and Fourteenth Amendment s do not require adoption of the proposed framework. Pp. 13−18, 19.
     Kennedy, J., delivered the opinion of the Court, except as to Part IV. Roberts, C. J., and Scalia and Alito, JJ., joined that opinion in full, and Thomas, J., joined as to all but Part IV. Roberts, C. J., and Alito, J., filed concurring opinions. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

US Supreme Court rules Lab Report Not Admissible in DWI Case.

March 28, 2012 Leave a comment

US Supreme Court rules Lab Report Not Admissible in DWI Case.  Bullcoming v New Mexico   131 S. Ct. 2705  (2011)

 

The Sixth Amendment’s Confrontation Clause gives the accused “[in all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[testimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachusetts, 557 U. S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements.

The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

Legal issues slow foreclosures

November 6, 2011 1 comment

Legal issues slow foreclosures

SUNDAY, NOVEMBER 6, 2011    LAST UPDATED: SUNDAY NOVEMBER 6, 2011, 10:22 AM
BY KATHLEEN LYNN
STAFF WRITER
THE RECORD

In a small Bergen County courtroom one recent Friday, a sheriff’s officer auctioned off two foreclosed properties in a matter of minutes, as a handful of investors kept their eyes open for bargains.

Few buyers attended a foreclosure auction of two properties at the Bergen County Courthouse.

DAVID BERGELAND/STAFF PHOTOGRAPHER
Few buyers attended a foreclosure auction of two properties at the Bergen County Courthouse.

It was a far cry from the typical sheriff’s auction of mid-2010, when 15 or more properties were auctioned weekly and up to 100 investors crowded the courthouse’s large jury room.

Sheriff’s auctions are among the most visible symbols of the housing crisis, which left many homeowners saddled with mortgages they couldn’t afford. But foreclosure auctions have slowed dramatically since questions arose more than a year ago about “robo-signing” — that is, sloppy paperwork by mortgage lenders and servicers.

Requesting a review

Homeowners who lost their homes to foreclosure in 2009 and 2010 can have their cases reviewed to see if their mortgage companies did anything wrong, the federal Office of the Comptroller of the Currency said last week.

Mortgage servicers were to begin mailing letters last week to borrowers, telling them how to request an independent review if they believe they were injured by flawed foreclosure proceedings. If the reviewer finds they were harmed, the customer may receive compensation or another remedy.

The companies are America’s Servicing Co., Aurora Loan Services, Bank of America, Beneficial, Chase, Citibank, CitiFinancial, CitiMortgage, Countrywide, EMC, Everbank/Everhome, First Horizon, GMAC Mortgage, HFC, HSBC, IndyMac Mortgage Services, Metlife Bank, National City, PNC, Sovereign Bank, SunTrust Mortgage, U.S. Bank, Wachovia, Washington Mutual and Wells Fargo.

Requests for review must be received by April 30, 2012. For more information, visit IndependentForeclosureReview.com.

Though lenders were given the go-ahead in August to start foreclosing again in New Jersey after showing a judge they were following the rules, they have been slow to resume activity.

The reason: an August appellate court decision, Bank of New York v. Laks, according to Kevin Wolfe, head of the state’s Office of Foreclosure. In that case, the court dismissed a foreclosure, finding the lender violated the state Fair Foreclosure Act because it didn’t properly identify itself in a notice sent to the troubled homeowners.

Under new state court rules, lawyers working for foreclosing plaintiffs have to personally certify that they have checked the facts behind a foreclosure filing with an employee of the lender or the lender’s servicer. Many have indicated to Wolfe that they are reluctant to sign such a certification, because they’re concerned that the lender’s paperwork may not meet the requirements set out in the Laks decision.

E. Robert Levy, executive director of the Mortgage Bankers Association of New Jersey, said he believed there was no “real question about the validity of the loans being put through the foreclosure process.”

“The money is still owed; it’s just a matter of making sure you meet the procedural requirements, and we agree the requirements should be met,” Levy said.

Advocates for distressed homeowners say it’s only reasonable to ask lenders to get the paperwork right when it involves a matter as serious as taking someone’s home.

“Any delay that there is in New Jersey is occurring only because lenders haven’t followed the law,” said Margaret Lambe Jurow, a lawyer with Legal Services of New Jersey, who has represented homeowners in foreclosure cases. “Had they filed these things properly, they’d be in and out.”

The implications go beyond the losses suffered by homeowners and lenders. Housing analysts say the troubled real estate market can’t recover until the large number of distressed properties are finally sold. The properties make up a so-called “shadow inventory” — not on the market yet, and likely to ultimately sell at a large discount to other properties, pulling down housing values. Foreclosed homes typically sell at a discount of 20 percent or more, according to research.

Mortgage paperwork issues stem from the fact that most mortgages are not held by the local bank; they’re bundled into securities and resold to investors. In these cases, the company that a homeowner writes monthly checks to — the mortgage servicer — probably does not actually own the loan.

In the Laks case, for example, Sarah Laks’ mortgage was serviced by Countrywide Home Loans, but the actual owner was a trust managed by the Bank of New York. When Laks, of Lakewood, defaulted on the loan, she got a notice of intention to foreclose from Countrywide, but it did not mention the real owner, as required by the state’s 1995 Fair Foreclosure Act.

A lender’s attorney who spoke on condition of anonymity said that in the years since the Fair Foreclosure Act was passed, it’s been very common for these notices to name only the servicer, not the actual holder of the loan, as required by the Laks decision.

When mortgages were being written and sold to investors at a furious pace during the housing boom, the mortgage machine allegedly cut corners on recording who actually owns a mortgage and, therefore, has the right to foreclose.

 

 

Federal investigation

 

The questions over robo-signing slowed foreclosures to a trickle this year in New Jersey, after the state’s chief justice ordered six big lenders to show they were following the rules last December.

As a result, New Jersey homeowners are staying in their homes, on average, for more than 2 1/2 years without paying their mortgages before they are evicted, according to RealtyTrac, a California company that tracks the foreclosure market.

On a national level, the mortgage servicers’ questionable foreclosure practices are under investigation by the federal government and most of the nation’s attorneys general. The investigation is expected to result in a settlement reported at $25 billion; in exchange, lenders would be released from some legal claims.

Ira Rheingold of the National Association of Consumer Advocates predicted that the attorneys general’s settlement will include a road map for how lenders can establish ownership of a mortgage in cases where the transfer was poorly documented.

For example, he said, lawyers sometimes use a “lost note affidavit,” where a lender’s employee with knowledge of the loan signs an affidavit certifying that the lender actually owns it, even if the documentation is missing.

“How are you going to prove ownership — that really is the big question,” Rheingold said. “At some point people really need to be able to sell their houses. … If there’s a mortgage, somebody is owed the money. How do you straighten out this mess?”

Questions about this chain of ownership are being watched by the title insurance industry. In a recent case in Massachusetts, a court ruled that a buyer who purchased a property after an improper foreclosure was not the legal owner.

So far, there haven’t been enough such cases to make title insurance companies back off from writing policies, according to the American Land Title Association. But the industry is continuing to watch the issue, an ALTA official said.

It’s not clear when the foreclosure pipeline will start moving again in New Jersey, though foreclosure lawyers are watching another case that brings up issues similar to the Laks case. That case, U.S. Bank v. Guillaume, is scheduled to be heard by the Supreme Court soon. In the Guillaume case, an appellate court made the opposite decision as was made in the Laks case, and upheld a foreclosure action against an East Orange homeowner who said the notice of intention to foreclose didn’t properly identify the lender.

The lender’s lawyer, speaking anonymously, said the Supreme Court could get the pipeline moving again by requiring that the lender be identified in notices going to troubled homeowners, as the Laks ruling requires — but only in the future, not in cases already filed.

“We’re hoping the Guillaume case clears this up,” said the lawyer.

E-mail: lynn@northjersey.com