New Jersey Criminal Defense Lawyer Blog

A New Jersey Sentencing Statutes referred to as "The Graves Act" was amended on January 13, 2008 to include a number of possessory firearm related crimes that were formerly outside the mandatory parole ineligibility sentencing provisions required by the Act. N.J.S.A. 2C:43-6c . Surprisingly, I still run into criminal defense attorneys who are unfamiliar with the implications of this change in the law. A complete recitation of the provisions and its nuances is beyond the scope of this posting. Suffice to say, practitioners really need to familiarize themselves with the "Attorney General Directive to Ensure Uniform Enforcement of the Graves Act" as corrected on 11/25/08.

There seems to be a lot of confusion as to whether or not certain weapons are covered by the Act. For example, pellet guns, air guns and BB guns are now Graves Act possessory offenses that fall within the mandatory parole ineligibility provisions of the Graves Act although their possession is a third degree offense. The Attorney General (A.G.) Guidelines, however, give the Prosecutors Office the discretion to dismiss a BB gun type possession offense as part of a plea bargain (and only that type of gun charge). All other Graves Act offenses must be fully pursued by the Prosecutors office and the mandatory parole ineligibility provisions applied.

In advising your client of potential sentences, a practitioner must be aware that the A.G. Guidelines impose a strict presumption of ineligibility for Pre-Trial Intervention (PTI) or a Probationary Term. Despite the presumption, the Guidelines do set out some very specific grounds upon which a practitioner could at least argue that the presumption of parole ineligibility has been overcome. It is imperative that Criminal practitioners intimately familiarize themselves with the Guidelines so that they can give their clients a real chance of limiting their jail exposure during the plea bargaining process.

Continue reading "New Jersey imposes Mandatory Jail Terms For Certain Firearm Offenses" »

On January 12, 2010, the New Jersey Governor signed into law a number of significant amendments to the New Jersey Expungement Statute. The changes provide monumentally great news for those New Jersey petitioners who were previously barred from receiving an expungement in New Jersey pursuant to the old statute. The most significant change is the eligibility for expungement of drug offenses that were previously barred. Third and Fourth degree drug distribution convictions for drugs other than marijuana are now eligible for expungement. Previously, a Third degree drug possession with intent to distribute or distribution conviction was non-expungeable regardless of the length of time that had passed since the conviction.

Ten Years waiting period for Expungement of a New Jersey Felony -Relaxed

Another significant amendments to the New Jersey Expungement Statute (N.J.S.A. 2C: 52-2), is the relaxation of the waiting period for eligibility. Under the old Expungement Statute, a person with an eligible felony conviction would have to wait Ten (10) years from the expiration of their sentence before they could petition the court for an expungement. Now, the time period has been reduced to only five (5) years if a petitioner meets certain criteria.

I am excited about the opportunities the new statute provides for those who have previously suffered the stigma of a conviction that happened long ago. I have spoken to many clients who have had job opportunities foreclosed based on a New Jersey conviction that occurred many years ago but was ineligible for an expungement under the old New Jersey Statute. The changes have now opened the door of opportunity for a large number of past and present New Jersey residents.

Continue reading "Amended New Jersey Expungement Statute - Good News for Many New Jersey Residents" »

A Perth Amboy New Jersey man was recently sentenced in Middlesex County New Jersey for Robbing a Chinese delivery man by pointing an "imitation" handgun at the delivery person while taking the food, a cell phone and 70 dollars, according to my Central Jersey.com . Many defendants believe that using an imitation firearm during a robbery cannot possibly be as serious as using a real firearm. Those defendants could not be more wrong.

In New Jersey a person can be charged with First Degree Armed Robbery if in the course of committing a theft, they are armed with, or use, or threaten the immediate use of a deadly weapon. N.J.S.A. 2C: 15-1. What most defendants do not realize is that the definition of deadly weapon under New Jersey law, includes any object that the victim would reasonably believe is capable of producing death or serious bodily injury. N.J.S.A. 2C: 11-1c. The practical reality is that a defendant is charged with the same crime, Armed Robbery, whether he sticks his finger in his pocket to mimic a gun or uses a loaded semi-automatic weapon during the robbery.

I do not know if the Perth Amboy man in Middlesex County knew about the serious implications of using an imitation firearm during the crime but it appears as if his attorney was able to negotiate a good deal in light of the circumstances. According the article, the defendant received an 8 year sentence with parole ineligibility of approximately 6 years pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2. For the defendant to receive only an 8 year sentence, the first degree armed robbery would have had to have been amended to a second degree (5 to 10 years) or treated as a second degree for sentencing purposes. Ordinarily, a first degree Armed Robbery carries a minimum 10 year sentence and a maximum of 20 years.

Continue reading "Armed Robbery in New Jersey - Imitation Firearms Qualify" »

There are real theft by deception cases in New Jersey that unquestionably fit the language of the theft by deception criminal statute. Recently, a Monmouth County local newspaper, The Hub, wrote a story about a Fair Haven New Jersey man who has been charged by the Monmouth County Prosecutor's Office with, among other charges, theft by deception. As an employee of Merrill Lynch, he is alleged to have taken investors money, and converted the money to his own use without ever having made the investment.

More and more, however, I have seen home improvement contractors in New Jersey charged and indicted for the crime of theft by deception even when the case seems more like a civil "breach of contract" than a criminal theft. Generally, a person is guilty of theft by deception "if he purposely obtains property of another" - you guessed it - "by deception" (NJSA 2C: 20-4). The problem is that the language is so broad New Jersey prosecutors often criminally indict breaches of contract by home improvement contractors where, historically, they were resolved in Civil Court.

I'll give you an example of what I believe is a questionable application of the theft by deception statute that is all too often applied to a breach of a civil contract. A home improvement contractor may agree to build an addition on a house for 100,000 dollars. A contract is signed, money exchanges hands and the work begins. For whatever reason, the contractor fails to finish the work. Maybe he does 75,000 dollars worth of work and then stops. Maybe the home owner is not satisfied with his work and tells him to stop because his performance is sub-standard. You would expect that a civil suit would follow for breach of contract and it would end.

The problem for contractors is that when the Home owner does not get quick results civilly, they often call their county prosecutor's office in New Jersey demanding a criminal investigation. Often times, these investigations involve little more than the home owner providing paper work to the prosecutor and then testifying at grand jury.

Continue reading "Theft By Deception in New Jersey - Home Improvement Contractors Unfairly Treated?" »

As I wrote in yesterday's attempted murder related post, attempted murder is not an easy charge for the Prosecutor to prove in New Jersey. Consequently, a defense attorney can often negotiate a better deal with the Prosecutor or defend the case at trial when an attempted murder charge is the primary crime charged against a defendant.

Why would a Prosecutor be willing to negotiate? The answer is simple - attempted murder is one of the hardest, if not the hardest, charge to prove. The Prosecutor would have to prove beyond a reasonable doubt that the accused's sole purpose in striking, stabbing or shooting another was to kill them. Often times, however, an accused wildly attacks another while enraged - acting recklessly - but certainly not purposely which is required to prove the charge.

Do not get me wrong, there are some attempted murder cases that the Prosecutor will have a much easier time proving. Where the alleged victim has been stabbed or shot multiple times and left unconscious, the Prosecutor will be able to effectively argue that the accused believed he accomplished his purpose when he left the scene. But most cases fall into a gray area. The accused may react to a situation without pre-meditation and on the spur of the moment - perhaps instinctively striking another causing serious injury but without a purpose to kill. If a an alleged victim is walking and talking after an attack while the accused flees the scene, it certainly would appear as if the accused's purpose was not to kill.

Continue reading "Attempted Murder in New Jersey - Not Always Easy to Prove" »

A Monmouth County New Jersey defendant has recently been charged with attempted murder, two counts of aggravated assault, possession of a weapon for an unlawful purpose, unlawful possession of a weapon and making terroristic threats in connection with an attack on three corrections officers in the Monmouth County Jail on Monday August 24, 2009, according to APP.com . The defendant, incarcerated on an unrelated Eluding charge, allegedly stabbed the officers with a homemade shank (knife) as they entered his cell to fix a broken light. All of the Officers were treated for their injuries at Jersey Shore University Hospital in Neptune and released.

The attempted murder charge , although not always easy to prove, carries a ten to twenty year New Jersey State Prison sentence with a lenghty period of parole ineligibility (85% of the sentence). (read more about attempted murder in my 8-27-09 post). Certainly, the length of the sentence on that charge, alone, is going to have to be factored into any plea negotiations by the defendant and his attorney.

There are two added bonuses in this case, however, that the the accused and his attorney are going to have to consider during plea negotiations and discuss at length. The New Jersey sentencing statute (N.J.S.A. 2C: 44-5h. and i.) requires that the plea offer for his new jail related charges include a prison term to run consecutively to his pending charges because the defendant already had the pending charges when he allegedly committed this offense. Also, any assault by an inmate on a corrections officer requires that his prison sentence be run consecutive to the prison sentence on his pending charges (the Eluding) and to any other charge related to the jail assault.

To put this in real terms, the plea offer from the Prosecutor in this case will, in all likelihood, require that the accused's sentence for each separate case will run consecutively. So, for example, even if he were offered the minimum 5 years on the eluding and the minimum 10 years on the attempted murder, his sentence would be 15 years. Had the above example reflected concurrent time, his plea offer would be a 10 year sentence because the 5 years on the Eluding would run at the same time (concurrent) as the 10 years for the attempted murder.

Continue reading "Attempted Murder and Aggravated Assault in Monmouth County Jail - Consecutive Sentencing in New Jersey" »

An Edison New Jersey Police Officer plead guilty to Shoplifting in Middlesex County Superior Court on August 10, 2009, according mycentraljersey.com .

Forget for a minute that a 29 year police veteran would need to, want to or risk, Shoplifting $42.00 worth of items from a supermarket where he works off-duty on a security detail. The real story is that he was able to avoid mandatory state prison time for Official Misconduct.

Official Misconduct in New Jersey (N.J.S.A. 2C: 30-2) occurs when a public servant (yes, a police officer) commits an act relating to his office with the purpose to obtain a benefit for himself. In this case, the officer's attorney stated that his client felt pressured to plea to the Shoplifting because the State was threatening to Indict the officer for Official Misconduct.

Of course there may have been an issue as to whether the officer committed an act related to his office as is required by the Official Misconduct statute. On the one hand, he was off-duty working a security detail and he was paid by the Supermarket. On the other hand, he was wearing his police uniform and he was hired by the Supermarket through the Edison police department. An interesting legal debate would have surely taken place.

Continue reading "Official Misconduct Penalties in New Jersey Are Serious - Edison Police Shoplifter Lucky" »

A female New Jersey High School teacher fom Howell Township New Jersey recently received a five year pobationary term from a Middlesex County Judge for having a sexual relationship with one of her seventeen year old male students.

The teacher waived her right to have the case presented to grand jury and plead guilty to a fourth degree count of cruelty and neglect. Apparently the teacher was 35 or 36 at the time the sexual relationship with the seventeen year old student.

This case highlights one of the potential advantages to negotiating at the early stages of a case. I do not know the strengths and weaknesses of the State's case but the plea allowed the defendant to avoid a potential indictment for second degree sexual assault. Perhaps even more importantly, the defendant avoided the implications of Megan's law and parole supervision for life .

Technically, a person in New Jersey can be charged with second degree sexual assault (N.J.S.A. 2C: 14-2c.) where he or she commits an act of sexual penetration with another person who is at least 16 but less than 18 years of age and the actor (defendant) has supervisory power over the victim by virtue of his or her occupational status (teacher would qualify).

Continue reading "New Jersey Sex Crimes - Megan's Law Does not Always Apply" »

A New Jersey man was recently charged with Maintaining or Operating a Marijuana Production Facility and Possession of a Controlled Dangerous Substance (Marijuana) with the intent to distribute in Cumberland County New Jersey.

Based on the charges, you would probably expect that extremely large amounts of marijuana and a sophisticated drug operation were uncovered but that was not the case. After someone consented to a search of the defendant's New Jersey home, the police found only 15 marijuana plants and six ounces of packaged marijuana (0.375 lbs). According to the State Police, paraphernalia consistent with an indoor marijuana growing operation was also recovered.

In New Jersey, you can be charged with Maintaining or Operating a Marijuana Production Facility if your residence or another premise is used to grow more than five pounds of marijuana (not the case here) OR used to grow more than ten plants (5 too many in this case).

The five extra plants in this case converted this third degree possession with intent case to a first degree maintaining or operating a marijuana production facility. What that means for this defendant is that his sentencing options went from a potential and likely probationary sentence to 10 to 20 years in State prison with mandatory parole ineligibility time.

Continue reading "Maintaining or Operating a Marijuana Production Facility in New Jersey - It Does Not Take Much Marijuana" »

It used to be that a charge for Unlawful Possession of a Firearm or Handgun in New Jersey would expose a defendant to little more than a probationary sentence. On January 13, 2008, the penalties in New Jersey for Unlawful Possession of a Firearm took on a whole new meaning even for first time offenders. Effective on that date, the Unlawful Possession of a Firearm or Handgun offense (N.J.S.A. 2C: 39-5b.) was elevated from a Third Degree offense (maximum 3 to 5 years in prison) to a Second Degree offense (maximum 5 to 10 years in prison). More importantly to those accused in New Jersey, the presumption of non-incarceration for a third degree offense no longer applied. In other words, even if it is your first offense, you are staring in the face of State Prison and mandatory parole ineligibility time pursuant to the Graves Act. (N.J.S.A. 2C: 43-6c.).

Recently, Federal Legislators have proposed a Bill that would have a major impact on the Unlawful Possession of a Firearm charge in New Jersey. I have read a number of news articles and editorials on this proposed gun amendment but it can be slightly confusing. The concern among some New Jersey residents, New Jersey Legislators and our current Governor, is that the Federal Law will allow residents in New Jersey to obtain a firearms carrier's permit in another State where it is easy to obtain a carrier's permit, and then return to New Jersey. Presumably, those with valid carrier's permits from other States would then be allowed to legally carry in New Jersey and effectively circumvent New Jerseys' strict limitation on the issuance of carrier's permits.

I can also see how the new Federal legislation would limit the effectiveness of the amended Unlawful Possession of a Firearm charge in New Jersey. The deterrent effect of having elevated the Possession of a Firearm charge in New Jersey to a second degree, Graves Act offense, may be rendered meaningless once New Jersey residents with questionable backgrounds realize how easy it is to obtain a carrier's permit in certain other States.

Continue reading "New Jersey Firearms and Handgun Possession - Effect of Proposed Federal Legislation " »

I was recently surfing the net when I came across a a news story of a motorist in New Jersey being pulled over in his car and searched by the police for drugs. In New Jersey this is a common everyday occurrence that many motorists experience. A lot of the possession of cocaine, heroin and other drug charges originate from police executed motor vehicle stops.

According to the motorist, who happens to be a semi-famous Rapper/Activist in New Jersey, he pulled over to the side of the Street in a residential neighborhood, and exchanged handshakes with a friend before driving off. The police stopped his car, removed him from the vehicle and searched both him and his car but found nothing.

The frustration for many New Jersey citizens lies in the lack of legally valid reasons for the police stop in the first place. The police in New Jersey cannot just stop you on the street or in you car without a reason or for just any reason. The State of New Jersey, by law, has to protect a person's constitutional right to be free of illegal searches and seizures. What this means for you as a motorist, is that the police cannot stop your car and detain you unless they have a "reasonable and articulable suspicion" that you committed a motor vehicle violation or some other violation of the law. For example, a handshake between friends on a residential street, alone, is not going justify a police executed stop and search of your car.

I have seen so many police executed motor vehicle stops and searches of cars that eventually produce the recovery of drugs, guns or other weapons. The fact remains, however, that the evidence cannot be used against you in Court where the police did not have a valid reason to stop you in the first place. Under New Jersey and Federal Constitutional law, the ends do not justify the means.

Continue reading "Stopped For Drug Search By A New Jersey Police Officer - Can He Just Do That?" »

Who knew that an arrest or conviction from 10, 20 or even 30 years ago could impact your life today. Unfortunately, many people believe that the dismissal of their criminal charges, or the relatively minor nature of the charge itself would never be maintained in a criminal record data base let alone be accessible to a potential employer. My guess is that most people do not even think to expunge their criminal record in New Jersey until an employer or potential employer informs them that their criminal record is a problem.

In today's economic climate, more and more people are switching jobs or adding a second job to supplement their income. Criminal background checks, once only reserved for those working in law enforcement or needing security clearance, are now common place. Employers, School admissions personnel as well as professional licensing boards often require criminal background checks as a prerequisite to employment or admission. Absent a criminal expungement, your arrest or conviction will "show up" on your record potentially costing you a job or a professional license.

An expungement is the technical term for clearing or concealing your criminal record. In fact, once an expungement has been ordered by a New Jersey Superior Court Judge, then you are legally authorized to answer "no" on most applications that ask if you have ever been arrested or convicted of a crime.

The first step in expunging your New Jersey criminal record is to determine whether or not your conviction is eligible for expungement in New Jersey. An arrest for any crime may be expunged, however, some convictions for crimes are not expungeable while others require a waiting period before the petition for expungement may be filed.

Continue reading "New Jersey Expungement of Criminal Record - Time is of the Essence" »

A New Jersey man was recently found not guilty of Aggravated Sexual Assault and Endangering the Welfare of a Child after a Middlesex County New Jersey Jury deliberated for just 40 minutes, according to a July 5, 2009 Newark Star Ledger article.

According to the article, charges of Sexual Assault an Endangering the Welfare of a Child were filed against the accused after a teenage boy told his grandmother that the accused, his former coach, had sexually assaulted him years earlier. The accused had been interviewed by the police for over 3 hours where he vehemently denied the allegations. The accused, nonetheless, was charged, indicted and tried before a jury.

This type of sexual assault case is often referred to as a "he-said, she- said" case. The only evidence that the State has against the accused in this type of sex case is the uncorroborated sexual assault allegations of a child ("she said") which the accused ("he said") denies.

At first glance, this type of sexual assault case would appear easy to defend because of the lack of evidence but the potential consequences for the accused are no different than if the State had DNA evidence, eyewitnesses and a confession. What was the accused in Middlesex facing by going to trial of a first degree Aggravated Sexual Assault? Only 10 to 20 years in New Jersey State prison of which he would have to serve 85% of his sentence before being eligible for parole.

The consequences are so great that innocent defendant's are often faced with a real dilemma - consider a plea offer to a lesser jail sentence, probation with mandatory Megan's law sex offender registration and parole supervision for life, or risk 20 years in State Prison.

I have seen juries struggle for hours with these type of cases. What the State may lack in evidence can be made up for with convincing testimony of a young child who seemingly has no motive to lie. As the Prosecutor on the Middlesex case pointed out, this type of case comes down to credibility.

Cross examination of the alleged victim, exploration of an alleged victim's potential motives for fabricating sexual assault allegations and presenting credible character witnesses on behalf of the accused can tip the scales in favor of the accused. The nature of the charges, and the age of child witnesses, however, require that the defense attorney walk a fine line between aggressiveness and compassion.

Continue reading "New Jersey Sexual Assault and Endangering Charges - Easier Alleged than Proved " »