It is always interesting when you are requested to give legal commentary.  I really got a kick Thursday when I received a call from a writer/researcher from the Fox television show House.  I could not help but appreciate the irony of being enlisted on such a dark show when my New Jersey criminal defense practice has such a dark side as well.  

I was even more excited when the writer told me why he was calling me.  He had done some research on a potential plot that involved someone being arrested in New Jersey for urinating in public, and his research indicated that I was a prominent authority on this subject.  What a pinnacle of achievement. Perhaps I can parlay this into a specialty in NJ lewdness charges.  Anything is possible!!!

On November 18, 2008, the Appellate Division issued its decision in State v. Stull.  The case involved the appeal of a Simple Assault conviction under N.J.S.A. 2C:12-1.  The defendant was a Hamilton police officer who had become involved in a physical altercation at a high school sporting event.  Apparently, the defendant’s wife and another women were in an argument and, when he separated the two, the son of the women involved, got involved with the defendant.  It culminated in defendant placing the boy in a headlock for a short period.  No blows were exchanged.

The officer ended up losing his job and pension as a result of the conviction and appealed. The basis for the appeal was the fact that Simple Assault had not been established as there was no “bodily injury” to the boy as required under N.J.S.A. 2C:12-1.  The Appellate Division was not persuaded by the argument, concluding that a headlock is enough to cause “bodily injury” insofar as all this term contemplates is some element of pain or physical discomfort.

The lesson to be learned from this decision is told-fold in my mind.  First, it illustrates just how serious the repercussions of a simple assault conviction can be in terms of employment.  It can limit an individuals ability to get a job and even result in discharge. Second, the decision reinforces the fact that there are rarely “do overs” once there is a bad result in a municipal court case.  There typically is only one bite at the apple so an experienced defense attorney is an absolute necessity for anyone viewing a simple assault offense seriously. 

Periodically, the New Jersey Administrative Office of the Courts publishes statistics concerning the number of DWI offenses issued in each municipality. The 2008 statistics (Year Ending October 2008) are out and are contained at the Judiciary Website. The major players continue to be the same and I am not surprised given the volume of cases every NJ DWI Lawyer at our firm has handle this year in these towns. 

In Union County, Linden had the highest DWI total at 57 with Elizabeth at 56 and Union at 50. In Somerset County, Bridgewater was the leader at 108 with Hillsborough and Someset well behind at 56 and 33 DWI cases, respectively.  Ocean County had some rather significant figures with numerous municipalities exceeding 50 summonses. Brick came in at 126, Dover at 91, Lacey at 79, and Stafford at 72.  Wall led Monmouth County at 81, with Holmdel slightly behind at 80. Middletown and Howell had 75 and 68 DWI charges. East Brunswick was a big force for DWI summonses once again.  It came in at 131, with Woodbridge at 125 and Old Bridge at 67. Jersey City issued 81 DWI tickets in Hudson County, with Union City second at 72 cases.

The police departments around the state were obviously busy during the last year.  With such volume, there are always opportunities for mistakes and technicalities.  

Another New Jersey politician was found guilty of criminal misconduct this past week.  This time, however, the conviction involved the highest ranking political figure in recent times.  The former chairmen of the senate budget committee, Senator Wayne Bryant, was found guilty last Tuesday of fraud.  The fraud stemmed from a “slow show” job at the University of Medicine & Dentistry.  The job was essentially found to be a payoff for funding Bryant procured for the University.

Fraud can be a difficult charge to prove in a Court of law.  This may explain why Senator Bryant chose to go to trial in the matter as opposed to accepting a plea bargain for much less time than the 15 years of Federal jail exposure he is now looking at.  The assessment of whether to proceed to trial on a fraud charge can be a difficult one and this time it may have backfired.  A thorough assessment of the positives and negatives of proceeding to trial is always a must.  In the end, however, no one can precisely predict what a jury will do.  I am sure Senator Bryant did not anticipate this outcome.

One of the biggest party nights of the year is this evening.  Not surprisingly, law enforcement will be out in full force to apprehend suspected drunk drivers.  The Monmouth County DWI Task Force is going to conduct a roadblock/checkpoint for this purpose.  The location of the checkpoint is Highway 36 Westbound and shall run from 11 p.m. to 3 a.m. 

Roadblock cases are not uncommon in our New Jersey DWI defense practice.  These activities do yield arrests, particularly, as the checkpoints are conducted at high incident locations.  If an individual finds themselves in the unfortunate position of being arrested at a DWI roadblock, all is not lost.  We find these types of cases to be conducive to defense.

The NJ Supreme Court is considering an appeal involving the admissibility of polygraph results of an uncounseled suspect.  The suspect apparently stipulated as to the admissibility of the results before submitting to the test, however, he was not represented by counsel.  I believe that Miranda may also be implicated in the appeal.

I bring this subject up because I was, coincidentally, consulted by a New Jersey state trooper who was convicted of official misconduct based on evidence which included a polygraph.  He too submitted to a polygraph which purportedly concluded that certain responses were deceptive.  The trooper was previously decorated for undercover work but was now looking at 10-20 years by virtue of the conviction.

I have a serious problem with the admissibility of polygraphs based on stipulations.  My reasons are two-fold.  First and foremost, how can polygraph results ever be admissible in any respect if the New Jersey Rules of Evidence have long declared them inadmissible based on unreliability?  If the tests are not reliable, they should not be introduced at trial as you are essentially providing the jury with unreliable scientific evidence. Second, the tests are never admissible under any circumstance to benefit a suspect.  Does it sound fair then that they can be used to hammer a suspect? 

Kareem McKenzie, one of the bookends of the Giants offense line, got a DWI last week.  As a die hard Giants fan, I am sorry to learn of this problem.  Kareem was allegedly making an illegal u-turn by cutting through a gas station parking lot. The ensuing stop resulted in his being arrested for DWI.  He is alleged to have blown in excess of .08% on the Alcotest.

The stop may involve a probable cause issue.  My thought is that unless there is some prohibition against a turn at the station, an issue may exist as to whether the maneuver was actually illegal.  While N.J.S.A. 39:4-66.2 prohibits use of private property to avoid a traffic control device (e.g. sign or light), there may be wiggle room on the charge, for example, who is to say that Kareem was not using the property for some other purpose (e.g. directions, food, etc.). The point is that, in addition to the standard defenses that may apply here, Kareem may have a probable cause issue.  I wish him the best of luck.
 

Laurick motions are common in New Jersey when an individual faces incarceration for a pending third or subsequent offense of DWI.  The Laurick opinion generally allows relief from incarceration provided the individual was unrepresented in one or more of the prior DWI cases.  The rationale for the rule is basically that a knowing and voluntary plea cannot be elicited absent representation by an attorney.  An obstacle confronted by NJ DWI Defense Lawyers in obtaining relief under Laurick has always been the resort of some municipal court judges to the five (5) year limitation period for seeking post-conviction relief.

In State v. Bringhurst, the NJ Appellate Division recently held that although the five year time bar to obtaining post-conviction relief applies to Laurick applications, the rule can routinely be overcome by demonstrating that the petition was not the result of neglect.  Insofar as a defendant typically does not realize what occurred or the need for relief until he or she is facing a situation of potential incarceration, this requirement shall customarily be satisfied.  It must be kept in mind, nonetheless, that the Court held that the petitioner for post-conviction reiief must make a showing of probable success under the facts of his case (referred to a prima facie case) before a conviction can be vacated.

We file many post-conviction relief applications every year.  The clarification provided by Bringhurst should provide more predictability and uniformity when we file these applications.

The Englishtown Police Department is considering layoffs of police officers because of financial constraints.  This is honestly something which I cannot recall happening in my 17 years of legal experience.  Lets hope the municipal board in Englishtown forgets this thought.

In my experience, actions by Boards which adversely effect the police are met with one of two results. The cops either stop writing tickets in retaliation or do just the opposite in hopes of getting the attention of taxpayers. Either result makes for unpleasantries.  I am sure there are other areas that can be trimmed before laying off cops.  

A Freehold Township man was arrested for suspicion of vehicular homicide on October 7, 2008.  Since that time, he has been involved in a series of alcohol related altercations and/or incidents, culminating in charges of simple assault on his mother.  Alcohol has been a common thread in all of the incidents. 

A Monmouth County Superior Court Judge was asked to increase the suspect’s $600,000 bail.  The judge ordered, however, that the defendant either admit himself into a longterm alcohol treatment center or be subject to an increased bail of $1,000,000.  The defendant opted for the former although his Monmouth County criminal lawyer was careful to point out that the entry into rehab should not be construed as an admission of guilt to any of the charges.

We often see first hand the negative effects of alcohol on individuals when they are exposed to the stress of a looming jail sentence.   There obviously is not justification for this conduct but it is easy to see how things like this happen.  Defense counsel better have something up his sleeve or this gentlemen may be looking at signficant jail time given his failure to learn from his mistakes.