Possession & Distribution – N.J.S.A. 2C:35-10.5
The New Jersey Harassment Law is set forth at N.J.S.A. 2C:33-4. This statute provides that a person is guilty of a petty disorderly persons offense “harassment” if he:
Harassment is a Fourth Degree Crime where it is committed by someone on probation or parole for an indictable offense.
Today, I received another telephone call from an individual who attempted to defend a simple assault charge on his own. The result was a conviction for simple assault in accordance with N.J.S.A. 2C:12-1. The man was extremely concerned about the impact the criminal record would have on his employment, as well as his immigration status. We are going to file an application for post-conviction relief to vacate the conviction and, if that fails, an appeal is contemplated.
In accordance with N.J.S.A. 2C:12-1, an individual may be found guilty of “simple assault” in New Jersey under any of three scenarios. The first situation is where an individual attempts to cause or recklessly, knowingly, or purposely causes bodily injury to another. The second scenario is where bodily injury is negligently caused with a deadly weapon. The third and final setting is where an individual attempts to put another in fear of serious bodily injury through physical menace. Simple assault is a disorderly persons offense except where it is the result of a fight by mutual consent, in which case it is a petty disorderly persons offense.
The error made by the individual who retained our office today was in attempting to defend himself. He candidly had no business playing around where the potential ramifications were so significant; unless or until we vacate the simple assault conviction, he shall possess a criminal record. There is little doubt in my mind that this outcome would have been avoided had we represented him. I think that the situation represents a perfect example of how individuals make the mistake of believing that a charge like simple assault does not require an attorney by virtue of not thinking through about what the potential ramifications shall be if they are convicted. It really is not worth the risk in my view given the marginal expense of hiring NJ Simple Assault Lawyers. I am certain that this individual will not make the same mistake again.
One would be shocked by the number of telephone calls I get every year from individuals arrested for illegal weapon possession at or on their way to a NJ casino. The scenarios go on and on. There is the guy who is charged when a pistol is discovered by police as a result of a domestic event with a wife, girlfriend, or boyfriend at a casino. We also find individuals running into trouble by virtue of partying in their room and the situation escalating to the point that the police are summoned. Another common scenario is the accused who leaves a weapon in his vehicle while or after valet parking, or in a bag at Atlantic City Airport.
The truth is that New Jersey takes unlicensed handguns very seriously and mandates imposition of a jail sentence in most cases. One would assume that this fact would prompt individuals to retain private counsel soon after arrest but the unfortunate reality is that the majority of the calls I receive involve out-of-state residents who take the charges lightly, opt for a public defender, and finally realize what they are up against when they are facing a plea cutoff. The plea cutoff typically requires that the defendant either accept a plea that involves 1 or 3 years of parole ineligibility, meaning that they must serve at least one year or three years of any sentence before they are even eligible for release from jail (e.g. 3 years with 1 year of parole ineligibility or 5 years with 3 years of parole ineligibility), or proceed to trial and face at least 5 years in jail if found guilty. Why do individuals repeatedly make this mistake — a lack of knowledge of the law and penalties for unlicensed handgun possession in NJ. Indeed, what may apply in terms of handgun possession in states like, for example, Florida, Virginia, Georgia, Pennsylvania, has no bearing in this state.
My hope is that through blog posts like this and other information on the internet, suspects charged with possessing an illegal gun will seek legal assistance early. Perhaps, this will translate into better outcomes for the long list of defendants who end up contacting us when it is too late to avoid a mandatory jail sentence and/or conviction. An even more optimist goal is to encourage individuals to leave their guns at home when they visit New Jersey as there really is no legally permissible use for them within the state absent a license.
I am certain that most individuals who abuse opiate prescription drugs have little thought of progressing to heroin. Nonetheless, when doctors refuse to refill prescriptions and/or the drugs become prohibitively costly, a readily accessible and cheaper form of opium is frequently enlisted – heroin. This pattern of progression to heroin is illustrated over and over again in our practice every day. Consider the following three (3) stories.
The first client that comes to mind is a gentleman for whom I am now guardian. He was a fireman in a large NJ city and sustained many orthopedic injuries during the course of his job. These injuries gave rise to over 15 surgeries and years of opiate pain medication. Eventually, doctors realized that he was abusing the drugs although all recognized that he endured significant pain on a daily basis. While no one would suspect that he would resort to heroin, he did when the opiate medication was curtailed and he began to get sick. I am sorry to say that he overdosed on heroin shortly into his usage and this resulted in permanent brain damage for which he now resides in a nursing home. He has three small children.
Another story involves an individual who also sustained an orthopedic injury for which he was prescribed opiate pain medication. He also had problems with addiction to the medication and, in fact, entered a drug rehabilitation facility to combat his problem. Unfortunately, he decided to “party” with an acquaintence he met in rehab and the suggestion was made that he try heroin to quench his opiate thirst. I am sad to say that this short deviation into heroin also resulted in an overdose that proved fatal. This banker left a wife and three small children.
The third story, and the one which prompted this blog, involved a 24 year old young man I met today at the Middlesex County Jail. Although I knew that he had been battling heroin addiction for several years, I had no idea how it originated. Then I heard his story and immediately recognized so many attributes, including his obvious intelligence. He had sustained an orthopedic injury as a freshman at Rutgers University that resulted in his starting to consume opiate pain medication. He became addicted and experienced difficulty obtaining the medication, becoming very sick from opiate withdrawal. Someone suggested that he snort some heroin as it might combat his sickness. He took the suggestion and it started him off on a downward spiral whose end is still unclear. His future, which was once so bright, is now highly questionable and the pain caused to his family has been immeasurable.
I have many more stories of individuals resorting to heroin after a prescription drug habit cannot be quenched. My hope is that someone heading down the road of opiate prescription drug addiction recognizes that these stories are not so far fetched given the type of people I have described and does not make this progression. Indeed, every person in these stories came from good stable families and had absolutely no thought that heroin had any chance of crossing their path.
Two highly publicized cases involving Possession with Intent to Distribute Marijuana and Cultivation of Marijuana were resolved this past week. The first matter involved a NJ man who claimed that he was growing marijuana plants in Essex County for treatment of his multiple sclerosis. The defense proved unsuccessful and he was sentenced to five (5) years in state prison this week. In the second case, a trucker passing through New Jersey was found to be in possession of 147 pounds of marijuana in Morris County. He was also sentenced this week and received a sentence of four (4) years.
The outcomes may appear inconsistent because they are. The individual in the first case was facing 5 to 10 years in prison for this second degree charge. He received a sentence at the bottom of the second degree range for growing marijuana. The other case involved a First Degree crime carrying 10 to 20 years in prison but the defendant received 4 years in jail. This was an obvious departure from the First Degree sentencing range. I assume that the more favorable outcome in this case reflects trial issues that existed relative to the search and discovery of the marijuana in the vehicle of the trucker.
These two cases illustrate how wide the potential outcomes can be when someone is arrested for selling marijuana in NJ. Formulation of a viable defense strategy is imperative in these cases and here we see how this impacts the outcome of a case. Selection of the right New Jersey Marijuana Defense Attorneys is an important consideration in this process. Formulation of a defense that has a legitimate potential for success is also pivotal. The strategy in the first case was obviously ill-fated and this is not a surprise to me in view of the fact that “medical marijuana” did not exist in this state when the offense was committed. This limited and/or prevented the defendant from raising any facts about medical necessity as a defense at trial. The defense also had an obvious problem by virtue of the fact that the defendant was apparently found to be in possession of not only the marijuana plants but psychedelic mushrooms too.
The framework for classifying criminal charges in NJ does not follow the traditional approach of many states. Most jurisdictions categorize crimes in terms of Misdemeanor and Felony Offenses. Our criminal code does not subscribe to this approach and, instead, speaks in terms of Indictable Crimes and Disorderly Persons Offenses.
A felony is typically viewed as any charge that involves a potential period of incarceration of more than six (6) months. Under New Jersey law, this would include First Degree, Second Degree, Third Degree, and Fourth Degree crimes. All of these grades of offense involve jail exposure exceeding a year. Therefore, they fall within the traditional definition for a “felony”. Additionally, the US Constitution mandates that a state indict an individual before they may be convicted of a “crime” or felony. First, Second, Third, and Fourth Degree crimes carry a right of indictment in NJ so they, again, are felonies on this basis as well.
This explanation is provided as individuals are often unaware of whether they are the subject of a felony or misdemeanor when they receive a complaint. If the charge involves a crime of any “Degree”, it is a felony.
Berkeley Heights Municipal Court, 29 Park Avenue, Berkeley Heights, NJ 07922
Telephone Number: 908-464-2700
Website: http://www.berkeleyheightstwp.com
Court Representatives: The Judge is the Honorable Donald Bogosian and the Prosecutor is Michael Mitzner. The Court Administrator is Joan Bierbaum.
As someone who attended college in the early to mid 1980s, I can remember the popularity of cocaine. The stigma attached to the drug certainly was not what it is today and, to say that it was in vogue in some circles, would probably be an understatement. I see a parallel between those times and what is going on today with possession and distribution of prescription drugs like oxycontin, roxycontin, xanax, vicodin, and other opiate pills.
All anyone has to do is open a newspaper or turn on the TV and there is no escaping a story about someone who has been negatively effected by prescription medications. The list goes on and on – most recently resulting in the overdose death of Cory Haim. Many individuals view the situation as an epidemic. I cannot say that I disagree based on what I am seeing in my NJ criminal defense practice. All walks are effected and we have even represented doctors, lawyers and pharmacists on prescription drug possession and/or fraud cases. There is no escaping, however, that the largest segment we are encountering are young adults who developed a fancy for opiate medication late in high school or college. The demise of these kids can be very tragic and we have even seen multiple deaths in our office. It seems that the drugs are readily accessible on campus or elsewhere and we know they can be as addictive as heroin. Notwithstanding the numerous stories of ruin and death from illegal prescription use, we are not seeing a reversal like we witnessed in the 80s when Len Bias overdosed on cocaine. While this trend benefits me and my firm financially, I sincerely wish this epidemic would end.
Confidential informants (commonly referred to as a “CI”) are encountered in criminal cases we handle in New Jersey almost every day. The common scenario is someone who has been arrested and decides to cooperate with police, making controlled buys from a particular “target”. The goal of the police is to arrest bigger fish while maintaining the confidentiality of the informant. The law in NJ is extremely protective of the identity of a confidential informant since commonplace disclosure would discourage cooperation given the threat of retaliation against the informant. This being the case, it is often a highly beneficial strategy for the defense to fight for disclosure, particularly, where an informant continues to have value to the police. But when is this possible in New Jersey?
Both NJ Rule of Evidence 516 and N.J.S.A. 2A:84A-28 address when disclosure of the identity of an informant may be obtained. In this regard,
A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.
New Jersey has basically carved out four scenarios where disclosure of the identity of a confidential informant may be had under these laws: (1) where the informant is a material and essential witness to a case; (2) where the confidential witness was a participant in the crime charged; (3) where the informant provided false information; or (4) where the informant’s identity was previously disclosed. Where one of these circumstances exist, there is basis under NJ law to obtain disclosure of a CI. A motion seeking this relief can often prove highly beneficial to the defense and/or plea negotiations.