Jonathan F. Marshall, Author at New Jersey Criminal Defense Law Blog

Residential Burglaries: The Push to Upgrade

On March 15, 2012, the New Jersey Assembly passed A1035, a Bill which seeks to upgrade residential burglary from a crime of the Third Degree to a crime of the Second Degree. The Bill further seeks to upgrade residential burglary from a crime of the Second Degree to a crime of the First Degree if committed while armed. This represents a drastic departure from the current law and will have serious implications in terms of the jail time exposure for those convicted, should the Bill become new law.

In its current form, the law is as follows:

Burglary, N.J.S.A. 2C:18-2

a. Burglary defined. A person is guilty of burglary if, with purpose to commit an offense therein or thereon he:

(1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter;

(2) Surreptitiously remains in a research facility, structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so; or

(3) Trespasses in or upon utility company property where public notice prohibiting trespass is given by conspicuous posting, or fencing or other enclosure manifestly designed to exclude intruders.

b. Grading. Burglary is a crime of the second degree if in the course of committing the offense, the actor:

(1) Purposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone; or

(2) Is armed with or displays what appear to be explosives or a deadly weapon.

Otherwise burglary is a crime of the third degree. An act shall be deemed “in the course of committing” an offense if it occurs in an attempt to commit an offense or in immediate flight after the attempt or commission.

At present, “structure” includes any place adapted for overnight accommodation of persons (i.e., a residence), thereby making the burglary of a residence a crime of the Third Degree. However, A1035 seeks to add the following language to subsection b. of the current law, thereby making the burglary of a residence a crime of the Second Degree, and further amending the law as follows:

(3) Unlawfully enters or surreptitiously remains in a dwelling or other structure adapted for overnight accommodation of persons, whether or not a person is actually present.

Burglary is a crime of the first degree if in the course of committing the offense the actor unlawfully enters or surreptitiously remains in a dwelling or other structure adapted for overnight accommodation of persons, whether or not a person is actually present, and is armed with or displays what appear to be explosives or a deadly weapon.

A crime of the First Degree is punishable by a term of imprisonment between 10 and 20 years, a fine not to exceed $200,000 or both. A crime of the Second Degree is punishable by a term of imprisonment between 5 and 10 years, a fine not to exceed $150,000 or both. A crime of the Third Degree is punishable by a term of imprisonment between 3 to 5 years, a fine not to exceed $15,000 or both.

A1035 clarifies that a person who commits a residential burglary under the new law (which would then be a crime of the Second Degree) would not be subject to the provisions of the No Early Release Act (“NERA”), but a person who commits the crime of armed residential burglary under the new law (which would then be a crime of the First Degree) would be subject to NERA. Under NERA, persons convicted of certain enumerated violent crimes are required to serve a minimum term of at least 85% of the sentence imposed. See N.J.S.A. 2C:43:7.2.

To read A1035 in its entirety, go to: http://www.njleg.state.nj.us/2012/Bills/A1500/1035_I1.PDF

The change is most likely the result of a strong push from law enforcement authorities, who call the burglary law in its current form “a joke.” “The reward of burglaries outweighs the risk,” says Steve Cucciniello, Chief of Detectives at the Bergen County Prosecutor’s Office. “Nothing is going to change until the law changes.” Those same authorities often compare the burglary law in New Jersey with the law in New York, where residential burglary is already a crime of the Second Degree, a felony that carries with it a minimum term of imprisonment between 3½ and 15 years.

Joke or not, being charged with the crime of residential burglary can have serious consequences, which could become much more severe should A1035 become law.

By Jonathan F. Marshall|2012-06-07T20:04:31+00:00June 7, 2012|Burglary|Comments Off

Senate Passes S1565: Internet Casino Gambling May Become a Reality

The move towards legalizing online gambling in New Jersey gained momentum this week when a Senate Committee passed S1565, which would authorize casinos in Atlantic City to set up Internet gambling access for their patrons.

Specifically, S1565 provides, most pertinently:

all games, including poker, which may be played at a casino, as well as variations or composites thereof, may be offered through Internet wagering;

all equipment used by a licensee to conduct Internet wagering must be located either in a restricted area on the premises of the casino hotel or in a secure facility inaccessible to the public and specifically designed for that purpose off the premises of a casino hotel but within the territorial limits of Atlantic City and all Internet wagers will be deemed to be placed when received in Atlantic City by the licensee regardless of the player’s physical location within this State; any intermediate routing of electronic data in connection with a wager will not affect the fact that the wager is placed in Atlantic City;

in order to participate in Internet wagering, a player must be physically present in New Jersey whenever a wager is placed by that player;

there is imposed an annual tax on Internet wagering gross revenues in the amount of 10% of such gross revenues which will be paid into the casino revenue fund; the 8% tax on casino gross revenues will not apply to Internet wagering gross revenues; and the investment alternative tax will apply to Internet wagering gross revenues, except that the investment alternative tax on these revenues will be 5% and the investment alternative will be 2.5%, with the proceeds thereof used as provided by law;

procedures for the crediting and debiting of a wagering account;

it will be lawful for a casino licensee to provide marketing information by means of the Internet to players engaged in Internet wagering and to offer those players incentives to visit the licensee’s casino in Atlantic City;

required features of Internet wagering to assist the wagering account holder;

required features to assist problem gamblers and potential problem gamblers;

penalties for violations of the provisions of the bill;

an annual fee for Internet wagering permit holders for the initial permit and permit renewal to cover the costs of regulation, with the initial fee to be at least $200,000 and the renewal fee to be at least $100,000; and

an annual fee for Internet wagering permit holders of $100,000 to be allocated to programs to prevent compulsive gambling and to assist compulsive gamblers.

The Bill also provides that the Division of Gaming Enforcement will adopt regulations for the implementation and conduct of Internet wagering that are consistent with regulations governing casino gambling generally.

The Bill was amended to its current form to address concerns voiced by Governor Christie last year over the constitutionality of a similar proposed measure, which he ultimately vetoed.

To read S1565 in its entirety, go to:

http://www.njleg.state.nj.us/2012/Bills/S2000/1565_I1.HTM

Push back is allegedly coming from the horse racing industry, whose representatives asserted at the hearing on Tuesday that their exclusion from the Bill will result in the loss of millions of dollars in revenue that can potentially be generated by Internet gambling. Thomas Luchento, President of the Standardbred Breeders and Owners Association of New Jersey claimed that the Bill supports one industry at the expense of another. Noting that patrons could come to the racetrack with their laptops and gamble online without wagering on the horses (thereby allowing for gaming on the premises with no profit for the tracks), Luchento argued, “Why is it different if I have [an Internet gambling] room at the racetrack?”

State Senator Jennifer Beck (R-Monmouth), whose County is home to Monmouth Park, is an avid supporter of the horse racing industry. She said that sought a way for the racetracks to share in the potential revenue, but the options are not likely to survive a legal challenge or Governor Christie’s veto.

The matter will now head to the Senate floor.

By Jonathan F. Marshall|2012-06-07T20:04:30+00:00June 7, 2012|General Criminal|Comments Off

Taking the 5th

There are many myths associated with the highly publicized “Taking the 5^th” in the American criminal justice system. Obviously taking the 5^th refers to the 5^th amendment. It specifically refers to the self-incrimination clause of the 5^th amendment. First of all, anyone can take the 5^th in any proceeding if you feel you are going to incriminate yourself with your response. Therefore, a person can take the 5^th in both a criminal trial or a civil trial or any other proceeding taken under oath. Secondly, you have to take the 5^th on any given issue the first opportunity you have to do so. If you fail to take the 5^th and answer questions relating to a given issue, it is forever waived. The 5^th amendment protection pertains only to testimony, not to physical characteristics. Moreover, in the American criminal system a prosecutor cannot comment on a person taking the 5^th amendment or invoking your Miranda rights. So when is this privilege unavailable you ask? First, if you are granted immunity from criminal prosecution then you can no longer take the 5^th amendment. Use and derivative use immunity means they can’t use anything you say against you and they also cannot use anything derived from that statement against you. A second situation where the privilege is unavailable is if the statute of limitations has run on the crime meaning you can no longer be prosecuted for the crime. If either of these situations occur, the 5^th amendment privilege is no longer available. Finally, if a criminal defendant does take the stand and they are asked questions that are the proper subject of interrogation, they can no longer take the 5^th. Basically, a criminal defendant is not allowed to take the stand and say what they want on direct examination and then take the 5^th when the prosecutor attempts to cross examine them. Hopefully this information helps clear up some of the truths and myths associated with “Taking the 5^th Amendment”.

By Jonathan F. Marshall|2012-06-07T17:46:16+00:00June 7, 2012|General Criminal|Comments Off

Proper DWI Stops

Here are some important cases regarding proper DWI stops in New Jersey:

State v. Carpentieri, 82 N.J. 546 (1980)

The police must have an articulable and reasonable suspicion that a violation of the traffic laws has occurred in order to effectuate a stop for DWI. Basically, the New Jersey Supreme Court in this case applied the United States Supreme Court decision holding random traffic stops invalid but applied this rule only to those stops that occurred after the Supreme Court decision.

State v. Pegeese, 351 N.J.Super. 25 (App.Div.2002)

The police may not detain occupant for consent search absence violation or criminal conduct once evidence of proper licensing, registration and the like is supplied.

State v. Puzio, 379 N.J.Super. 378 (App.Div.2005)

A stop is invalid where it is based on a police officer’s mistaken understanding of the law. The court held that as an issue of first impression, officer’s belief that defendant was operating a vehicle in violation of statute requiring display of business and address on a commercial vehicle was not objectively reasonable, and thus officer was not justified in conducting investigatory stop of vehicle.

State v. Pitcher, 379 N.J.Super. 308 (App.Div.2005)

A stop based on an officer’s mistaken understanding of a fact, e.g., that the driver had a suspended license, will not be invalidated provided the officer’s actions were supported by a “reasonable” belief that the related facts were accurate. The court held that officer’s traffic stop, conducted in reliance on erroneous information in the DMV database that showed that the defendant had a suspended license, was reasonable.

By Jonathan F. Marshall|2012-06-07T17:46:14+00:00June 7, 2012|Case Summaries|Comments Off

Proof of Intoxication

Here is some important precedent regarding proof of intoxication for DWI cases in New Jersey:

State v. Johnson, 42 N.J. 146 (1964)

The court held that proof of intoxication may be established either through breath test or other toxicology tests, or by other evidence such as the driver’s own admissions or his performance of psycho-physical tests.

Romano v. Kimmelman, 96 N.J. 66 (1984)

The NJ Supreme Court established the reliability and admissibility of breathalyzer test results. The court held that (1) manufacturers’ breathalyzer models “900” and “900A” are scientifically reliable for purpose of determining content of blood alcohol, with narrow qualification as to admissibility of test results relating to possible effects of radio frequency interference; (2) results of administration of model “900” can be received in evidence without further proof establishing any additional conditions for admissibility relating to effects of radio frequency interference, provided that hand-held transmitters are banned from area in close proximity to breathalyzer instrument; (3) model “900A” results may be admitted in evidence and form basis of driving under influence conviction either if breathalyzer result consists of two tests or readings within tolerance of 0.10 percent of each other, breathalyzer instrument has been found not to be radio frequency interference-sensitive, or if sensitive, it is shown that in administration of instrument, instrument was protected from transmitters and radio frequency; and (4) new trial on newly discovered evidence may be brought only when conviction based upon such breathalyzer results could possibly have been affected by radio frequency interference.

State v. Maida, 332 N.J. Super 564 (2000)

The court held (1) that the coordinator’s certificate was sufficient to carry the burden of proof as to accuracy of breath test machine and (2) the Horizontal Gaze Nystagmus (HGN) test was sufficiently reliable to be admitted as scientific evidence of intoxication in a criminal trial.

State v. Cryan, 363 N.J. Super 442 (2003)

The court held under the influence means a condition which so affects the judgment or control of the motor vehicle operator as to make it improper for him to drive on the highway. In this case bloodshot eyes, a strong odor of alcohol on his breath, and hostile and erratic behavior were sufficient to establish driving while intoxicated.

State v. Slinger, 281 N.J. Super 538 (1995)

The court held that proof of intoxication can be shown independent of the breathalyzer results where, as here, defendant’s erratic driving, his physical appearance, demeanor, and speech, as well as the smell of alcohol on his breath were sufficient reliable indicia to establish driving while intoxicated.

By Jonathan F. Marshall|2012-06-07T17:46:14+00:00June 7, 2012|Case Summaries|Comments Off

Blood & Breath Test Refusal

Here is some important precedent governing Blood & Breath test refusal in New Jersey:

State v. Cummings, 184 N.J. 84 (2005)

The Supreme Court of New Jersey held that the elements of refusal must be established beyond a reasonable doubt.

State v. Bernhardt, 245 N.J. Super 210(App. Div. 1992)

This case sets forth the six elements necessary to establish refusal. The court also held that once a defendant refuses to take a breathalyzer test he cannot thereafter “cure” the refusal by agreeing to take the test.

State v. Carrado, 184 N.J. Super 561(App. Div. 1982)

This case held that a request requires a simple “yes” or “no” and setting is not one for explanation, negotiation, or debate.

By Jonathan F. Marshall|2012-06-07T17:46:13+00:00June 7, 2012|Case Summaries|Comments Off

Breathalyzer and the Burden of Proof in DWI Cases

The breathalyzer fulfills a legislative policy and intent to provide a reliable and fair measure of alcohol in the brain. Accordingly, breathalyzer results can be used in prosecution of a per se offense of drunk driving. Moreover, the reliability of the breathalyzer is subject to judicial notice in drunk driving prosecutions. State v. Downie, 117 N.J. 450 (1990). Judicial notice means that the breathalyzer has been accepted by the courts as a reliable indicator of blood alcohol levels and therefore requires no outside proof.

In establishing the conditions of admissibility of the results of a breathalyzer reading, the responsibility for producing sufficient proof is allocated to the State and the burden of proof is by clear and convincing evidence. Romano v. Kimmelman, 96 N.J. 66 (1984)

By Jonathan F. Marshall|2012-06-07T17:46:04+00:00June 7, 2012|Blood Breath Tests|Comments Off

New Jersey Driver’s License and DWI Convictions in Other States

We often receive calls from individuals who have a New Jersey Driver’s License and have been charged or convicted of driving while intoxicated (DWI) in another State. Basically, this is the procedure. The individual must first contact an attorney in another State (say for example North Carolina). They must then fight the DWI charge in the North Carolina courts and they are subject to the penalties for DWI in North Carolina. All North Carolina can do, because the individual has a New Jersey Driver’s License, is suspend the offender’s driving privileges in North Carolina and notify New Jersey of the DWI conviction. Then the individual will be subject to DWI penalties in New Jersey as well. Therefore, the matter must first be litigated in North Carolina and there are legal strategies available to avoiding punishment in New Jersey for this out of state DWI conviction. As a result, it is important to contact an experienced DWI attorney in New Jersey in order to avoid having your New Jersey Driver’s License suspended by the New Jersey Department of Motor Vehicles for an out of state DWI conviction. There will be a hearing at the Department of Motor Vehicles regarding your out of state DWI charge and it is important to have an attorney represent you in defending this matter.

By Jonathan F. Marshall|2012-06-07T17:46:03+00:00June 7, 2012|New Jersey DWI Law|Comments Off

Common Law Defenses to DWI charges

There are some common law defenses available in DWI cases in New Jersey. Although the defenses generally available under the New Jersey Code of Criminal Justice are not available to a defendant in a drunk driving case (because it is a strict liability offense and a per se violation of the statute), common law defenses may be asserted. For example, the defense of duress under New Jersey common law may be used as a defense in a drunk driving case. State v. Fogarty, 128 N.J. 59 (1992). The easiest way to understand the defense of duress is someone is holding a gun to your head and forces you to drive even though you are intoxicated. This would be a valid common law defense of duress to a charge of drinking and driving in New Jersey.

Double jeapardy also applies in certain circumstances in New Jersey DWI cases. A plea of guilty in municipal court to drunk driving, which included merged offenses of reckless driving and failure to keep right, prevented a subsequent Superior Court prosecution for death by auto arising from the same incident based upon the double jeapardy clauses of the State and Federal Constitutions. State v. Dively, 92 N.J. 573 (1983).

By Jonathan F. Marshall|2012-06-07T17:46:03+00:00June 7, 2012|New Jersey DWI Law|Comments Off

Michael Vick Sentenced Today

Former NFL star and Atlanta Falcons quarterback Michael Vick was sentenced today in Federal Court by the Honorable Henry E. Hudson on dogfighting charges. In an earlier post, I discussed the re-emergence of judicial discretion in sentencing in Federal court following the landmark Booker decision in 2004. This judicial discretion is evident in the 23 month sentence Michael Vick received today. The prosecutors in this case, after negotiating a plea agreement with Michael Vick, recommended 12-18 months incarceration. However, judge Henry Hudson, who has a reputation for being hard on crime, sentenced Vick today to 23 months in federal prison. Vick was facing up to 5 years in prison for his connection with a dogfighting ring. After Vick apologized to the court and his family, Hudson told him: “You need to apologize to the millions of young people who looked up to you.” “Yes, sir,” Vick answered.

By Jonathan F. Marshall|2012-06-07T17:46:01+00:00June 7, 2012|General Criminal|Comments Off

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