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Understanding New Jersey Criminal Charges

August 20, 2013 Leave a comment

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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.

 

NEW CASE: N.G. v. J.P. FAMILY LAW — Domestic Violence – 50 YEARS DIVORCED IS NOT TOO LONG TO BE CONSIDERED DOMESTIC VIOLENCE

June 28, 2012 Leave a comment

N.G. v. J.P.

http://www.law.com/jsp/nj/PubArticleFriendlyNJ.jsp?id=1202560223664

FAMILY LAWDomestic Violence
Although the parties have not resided together in more than 50 years, defendant‘s sporadic harassment of plaintiff over that period, arising from their status as former household members, conferred jurisdiction on the Family Part to issue a final restraining order under the Prevention of Domestic Violence Act.

 

By Judith Nallin

06-20-2012

N.G. v. J.P., A-3247-10T3; Appellate Division; opinion by Baxter, J.A.D.; decided and approved for publication June 18, 2012. Before Judges Baxter, Nugent and Carchman. On appeal from the Chancery Division, Family Part, Essex County, FV-07-321-11. DDS No. 20-2-6661 [34 pp.]

Defendant J.P. appeals from the issuance of a final restraining order against him under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35.

Defendant and plaintiff N.G. are siblings who have not resided together since 1960. J.P. harbors a deep resentment of N.G. and their mother, B.P. The record describes confrontations between J.P. and N.G. in the 1960s when he allegedly hit her over the head with a baseball bat, in 1989, when he confronted her in a school parking lot, and in 1991, when he encountered her at a local pizzeria.

As a result of those incidents, N.G. obtained an order for preliminary restraints barring J.P. from contacting or disparaging her and from conducting any sort of public protest adjacent to her residence. In 1991, a judge entered a FRO prohibiting J.P. from coming within four blocks of the residences of B.P. and N.G.. The FRO was vacated in 1993 as to B.P. only.

In February 2010, J.P. began picketing in front of N.G.’s residence. On 29 occasions he marched back and forth repeatedly saying “F— you G——–,” “Burn in hell,” and “I hope you rot in hell.” He often made an obscene gesture in which he raised each of his middle fingers.

As a result, N.G. filed a domestic-violence complaint against him. The judge ruled that J.P. had committed the predicate acts of stalking and harassment and issued the FRO barring him from contacting N.G. and from entering any portion of Millburn Township. J.P. responded that he would not comply with the court’s order. N.G. was awarded attorney fees.

Held: The harassment of plaintiff by defendant over the intervening decades — although sporadic — conferred jurisdiction on the Family Part to issue the FRO since the present incidents arose directly from the parties’ acrimonious family relationship and their status as former household members.

Defendant’s conduct constituted harassment and stalking. The award of attorney fees to plaintiff is affirmed, as such fees are expressly available under the act and the judge correctly applied the factors in Rule 4:42-9(b). However, because the FRO failed to give sufficient consideration to J.P.’s legitimate need to attend church and visit his physician in Millburn, the matter is remanded so that the judge may set precise conditions respecting those activities.

J.P. claims that the court lacked jurisdiction to issue the FRO and that the judge committed reversible error when he refused to dismiss N.G.’s complaint. The panel says the act defines a victim of domestic violence to include, “any person … who has been subjected to domestic violence by … any … person who is a present or former household member.” The panel applies the six-factor test for determining whether jurisdiction exists based on the parties’ status set forth in Coleman v. Romano, 388 N.J. Super. 342 (Ch. Div. 2006).

As to the first factor, the nature and duration of the prior relationship between the parties, the panel agrees with the trial judge’s finding that although N.G. and J.P. have been estranged for decades, his attempt to re-establish contact with her springs from the antagonism he harbored toward her while they were members of the same household. The long duration of the parties’ relationship, albeit composed of sporadic episodes of intense strife, supports the conclusion that this factor was satisfied.

As to the second factor, whether the past domestic relationship provides a special opportunity for abuse and controlling behavior, the panel says J.P.’s testimony concerning the motivation for his behavior makes it clear that if N.G. were not his sister, he would not have behaved toward her as he did. Her testimony supports the conclusion that events during her childhood made her fearful of his conduct and threats in adulthood. Thus, the second factor weighs in favor of jurisdiction under the act.

The panel says that while the parties have not lived together for more than 50 years, the third factor, the amount of time that has elapsed since the parties last lived together, is only one factor to be considered in determining the availability of the act’s protection.

The fourth factor is the nature and extent of any contact between the parties between the time they ceased living together and when the plaintiff seeks protection under the act. The panel says that although J.P.’s conduct in 1989 and 1991 is distant in time both from when the parties stopped living together and from when N.G. sought protection under the act, the incidents were of such severity as to weigh in favor of jurisdiction.

As to the fifth factor, the nature of the precipitating incident, the panel says that case law has held that when the precipitating incident relates to the prior domestic relationship, jurisdiction under the act is appropriate. Because J.P.’s behavior in 2010 was motivated exclusively by what he perceived as B.P.’s and N.G.’s unjust treatment of him, and his conduct was persistent and threatening, the nature of the precipitating incident weighs in favor of jurisdiction.

Finally, the panel says the sixth factor, the likelihood of ongoing contact or a continuing relationship, weighs in favor of jurisdiction since defendant’s testimony provides ample evidence that his behavior will not cease.

Because all of the Coleman factors, with the possible exception of the third, weigh in favor of jurisdiction, the panel affirms the denial of defendant’s motion to dismiss.

As to defendant’s argument that the FRO was oppressively and impermissibly broad, the panel notes that remedies under the act are liberally construed for the protection and safety of victims and the public at large. Noting J.P.’s defiant attitude and his vow to disobey the FRO, it says extraordinary measures are necessary for N.G.’s protection.

Therefore, the panel affirms the ban on defendant entering Millburn. However, it remands to give J.P. a fuller opportunity to describe his church attendance and any visits to his doctors in Millburn. If he fails to do so, his right to seek such relief will be deemed waived.

As to defendant’s claim that the judge erred by finding his conduct constituted harassment and stalking, the panel reviews the statutory definition of stalking and concludes that the trial court correctly found that J.P. committed the predicate offense of stalking where he maintained a visual and physical proximity to N.G., his conduct was repeated 29 times, he threatened N.G. by offensive hand gestures and shouting curses at her, and he caused emotional distress.

Similarly, the panel reviews the definition of harassment and concludes that J.P.’s conduct constituted harassment where he communicated with N.G., his conduct undermined his claim that his intent was other than to harass her, and his repeated conduct was likely to cause annoyance or alarm.

The panel affirms the award of counsel fees, finding that such an award in a domestic-violence proceeding requires no special showing and that the judge carefully applied all of the factors specified in Rule 4:42-9(b), RPC 1.5(a) and Schmidt v. Schmidt, 262 N.J. Super. 451 (Ch. Div. 1992).

For appellant — Jack Venturi (Jack Venturi & Associates; Venturi and Michael B. Roberts on the briefs). For respondents — Mark H. Sobel (Greenbaum, Rowe, Smith & Davis; Sobel and Dennis F. Feeney on the brief).

 

http://www.law.com/jsp/nj/PubArticleFriendlyNJ.jsp?id=1202560223664

Guilty Plea May Be Withdrawn In Face of Colorable Defense

June 28, 2012 Leave a comment

Guilty Plea May Be Withdrawn In Face of Colorable Defense

A defendant who presented a colorable claim of self defense before he was to be sentenced for aggravated manslaughter should have been allowed to withdraw his guilty plea, the New Jersey Supreme Court rules.
http://www.law.com/jsp/nj/PubArticleFriendlyNJ.jsp?id=1202561115839

Michael Booth

06-28-2012

A defendant who presented a colorable claim of self defense before he was to be sentenced for aggravated manslaughter should have been allowed to withdraw his guilty plea, the New Jersey Supreme Court ruled Wednesday.

In a unanimous ruling, the court said judges should take greater care during plea hearings to hear the defendant explain what happened. “[T]he ultimate goal is to ensure that legitimate disputes about the guilt or innocence of a criminal defendant are decided by a jury,” wrote Justice Barry Albin for the court in State v. Munroe, A-125-10.

Larry Munroe originally was charged with murder and related offenses in connection with the May 13, 2005, shooting death of Christian Natal, who Munroe said had robbed him on another occasion.

Two years later, Munroe agreed to plead guilty to a count of aggravated manslaughter. In exchange, the murder charge, which carried a life sentence, would be dropped, and he would serve a maximum of 17 years.

During the plea hearing, Hudson County Superior Court Judge Frederick Theemling Jr. asked Munroe a series of yes or no questions centering on whether he, in fact, did shoot Natal. Munroe answered in the affirmative.

But at sentencing, Munroe for the first time claimed that he acted in self defense and asked to be allowed to withdraw his guilty plea and go to trial.

Munroe claimed that while he and Natal were arguing between two parked cars, Natal pulled a knife and pushed him against one of the cars. Munroe then shot Natal, allegedly in self-defense, because he had nowhere to run. Police investigating the shooting found a box cutter in Natal’s possession.

Theemling denied Munroe’s request, saying that he had voluntarily entered into the guilty plea. The Appellate Division agreed.

During the pendency of Munroe’s appeal, the court ruled in State v. Slater, 198 N.J. 145 (2009), that when reviewing requests to withdraw guilty pleas, judges should determine whether there is a colorable claim by analyzing its nature and strength, whether the original plea deal was just and whether allowing the request would unduly disadvantage the state and advantage the defendant.

Albin said that while Theemling did not have the benefit of Slater at the time, an analysis of those factors now indicates Munroe should have been allowed to withdraw his guilty plea.

Munroe, he said, argued at the sentencing hearing that he was trapped between Natal and the car, but was not asked about those details when he pleaded guilty.

“Permitting a complete response from the defendant that elicits the underpinnings of the guilty plea may take a few more seconds or minutes,” Albin said. “Yet, in the long run, that approach may prove more beneficial and less time consuming because it is better to know then whether the defendant has a potentially viable defense and whether he is willing to waive it and enter a guilty plea.”

Albin noted that one reason Theemling rejected the self-defense argument was that Munroe was armed with a gun and Natal, seemingly, only with a knife. Albin pointed out that the state police reported in 2010 that 14 percent of murders and 23 percent of assaults were committed with a knife.

“Moreover, imperfect self-defense is applicable if the jury determines that defendant acted with an honest but unreasonable belief in the need to use deadly force,” he said. “Indeed, once self-defense is raised in a case, the State must prove beyond a reasonable doubt that defendant was not justified in using deadly force.”

Assistant Hudson County Prosecutor Lynne Seborowski, who argued against Munroe’s request to withdraw his plea, says her office is prepared to try the case, although she adds that she believes the ruling puts the prosecution at a disadvantage because of the time that has elapsed between the killing and now.

Says Munroe’s lawyer, Assistant Deputy Public Defender Frank Pugliese: “Mr. Munroe deserves his day in court and the Supreme Court has assured that he will have it. A jury will decide the facts of the case and determine whether a crime was committed.”

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.

Benjamin G. Kelsen, Esq. named a “Super Lawyer”

March 23, 2012 Leave a comment

Benjamin G. Kelsen, Esq., of  The Law Offices of Benjamin G. Kelsen, Esq. LLC, a Teaneck New Jersey based firm with offices in Lakewood and Newark, has been named to the New Jersey Rising Stars list as one of the top up-and-coming attorneys in New Jersey for 2012.  Each year, no more than 2.5 percent of the lawyers in the state receive this honor. The selection  for this respected list is made by the research team at SuperLawyers. SuperLawyers, a Thomson-Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a state wide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The Rising Stars lists are published nation wide in Super Lawyers magazines and in leading city and regional magazines across the country.

For more information about SuperLawyers, go to superlawyers.com. The first SuperLawyers list was published in 1991 and by 2009 the rating service had expanded nationwide. In February 2010 SuperLawyers was acquired by ThomsonReuters the world’s leading source of intelligent information for business and professionals

New NJ State Supreme Court Ruling : State v. Cecilia X. Chen (A-69-08)(063177)

August 24, 2011 Leave a comment

In this appeal, the Court considers whether suggestive behavior by a private party, without any state action,
should be evaluated at a pretrial hearing to determine whether an eyewitness’ identification may be admitted at trial.

There are many DWI cases where the court must decide “was defendant really the driver?” Where the issue is at play it is crucial that defense attys review the process of identification. When the police initiate the process, the law has been clear that defendant is entitled to Wade hearing on whether the process was too suggestive. But what is there is no state action, I.e. it is a friend or relative of the victim who was too suggestive? The Supreme Court today,in State v Chen, the Court ruled that state action or not, the process of eyewitness ID is so fraught with prejudicial peril that the trial court must entertain the Wade type hearing regardless.
HELD: Even without any police action, when a defendant presents evidence that an identification was made under highly suggestive circumstances that could lead to a mistaken identification, trial judges should conduct a preliminary hearing, upon request, to determine the admissibility of the identification evidence.
1. This case is not about government conduct.  As a result, the Court is not concerned about deterring future conduct by law enforcement officers.  Nonetheless, the Court must consider the admission of eyewitness identifications tainted by private suggestive procedures in light of the rules of evidence and the trial courts’ gatekeeping function.  Courts have a gatekeeping role to ensure that unreliable, misleading evidence is not admitted. (pp. 12-15)
2. The Court notes that identification evidence has historically raised serious questions about reliability. Today’s decision in State v Henderson contains a broader examination of the extensive body of scientific evidence that has developed in the past thirty years.  Among other things, that evidence reveals the suggestive effect that private actors  can have on an eyewitness’ recollection of events.  In Henderson, the Court concluded that non-State actors like cowitnesses and other sources of information can affect the independent nature and reliability of identification evidence and inflate witness confidence. (pp. 15-26)
3. Because of the pivotal role identification evidence plays in criminal trials, and the risk of misidentification and wrongful conviction from suggestive behavior – whether by governmental or private actors – a private actor’s suggestive words or conduct will require a preliminary hearing under Rule 104 in certain cases to assess whether identification evidence is admissible.  Today in Henderson, the Court modified the traditional Manson/Madison test and held that defendants can obtain a pretrial hearing by showing some evidence of suggestiveness that could lead to a mistaken identification.  The Court makes a modification to Henderson in cases in which there is no police action, requiring a higher, initial threshold of suggestiveness to trigger a hearing, namely, some evidence of highly suggestive circumstances as opposed to simply suggestive conduct.  The Court holds that the following modified approach shall apply to assess the admissibility of identification evidence when there is suggestive behavior but no police action: (1) to obtain a pretrial hearing, a defendant must present evidence that the identification was made under highly suggestive circumstances that could lead to a mistaken identification, (2) the State must then offer proof to show that the proffered eyewitness identification is reliable, accounting for system and estimator variables, and (3) defendant has the burden of showing a very substantial likelihood of irreparable misidentification. (pp. 26-
30) 4. Applying the above framework to the facts of this case, the Court finds that JC’s words and actions were so highly suggestive that a pretrial hearing is warranted to assess the admissibility of Helen’s identification evidence.  The Court therefore remands the case to the trial court for a Rule 104 hearing. (pp. 30-32)